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Pt. I. 72-73.

Liabilities

of ships not recognised as British.

[1854, s. 106.]

National colours for ships, and penalty on carrying improper colours.

[1854, s. 105; 52 & 53 Vict. c. 73, ss. 1, 3.]

72. Where it is declared by this Act that a British ship shall not be recognised as a British ship (a), that ship shall not be entitled to any benefits, privileges, advantages (b), or protection usually enjoyed by British ships, nor to use the British flag or assume the British national character, but so far as regards the payment of dues, the liability to fines and forfeiture, and the punishment of offences committed on board such ship, or by any persons belonging to her, such ship shall be dealt with in the same manner in all respects as if she were a recognised British ship (c).

A similar provision as to fishing boats is contained in s. 373, sub-s. (3).

(a) See ss. 1, 2, for necessary qualifications for recognition as a British ship. (b) As to the extension of the provisions relating to limitation of liability to ships from launching to registration, see Merchant Shipping (Liability of Shipowners) Act, 1898, ss. 1, 2; and M. S. A. 1906, s. 70.

(c) See the note preceding s. 220 (provisions as to discipline) and cases there cited, and cf. ss. 266, 508, applying Part II. and exempting Part VIII. from applying to ships not recognised as British ships, and s. 486, giving naval courts jurisdiction over unregistered British ships.

73.-(1.) The red ensign usually worn by merchant ships, without any defacement or modification whatsoever, is hereby declared to be the proper national colours for all ships and boats belonging to any British subject, except in the case of Her Majesty's ships or boats, or in the case of any other ship or boat for the time being allowed to wear any other national colours in pursuance of a warrant from Her Majesty or from the Admiralty (a).

(2.) If any distinctive national colours, except such red ensign or except the Union Jack with a white border (b), or if any colours usually worn by Her Majesty's ships or resembling those of Her Majesty, or if the pendant usually carried by Her Majesty's ships or any pendant resembling that pendant, are or is hoisted on board any ship or boat belonging to any British subject without warrant from Her Majesty or from the Admiralty (a), the master of the ship or boat, or the owner thereof, if on board the same, and every other person hoisting the colours or pendant, shall for each offence incur a fine not exceeding five hundred pounds.

(3.) Any commissioned officer on full pay in the military or naval service of Her Majesty, or any officer of customs in Her Majesty's dominions, or any British consular officer, may board any ship or boat on which any colours or pendant are hoisted contrary to this Act, and seize and take away the colours or pendant, and the colours or pendant shall be forfeited to Her Majesty (c).

(4.) A fine under this section may be recovered with costs in the High Court (d) in England or Ireland, or in the Court of Session in Scotland, or in any Colonial Court of Admiralty or Vice-Admiralty Court within Her Majesty's dominions.

(5.) Any offence mentioned in this section may also be prosecuted, and the fine for it recovered, summarily, provided that:

(a.) where any such offence is prosecuted summarily, the court imposing the fine shall not impose a higher fine than one hundred pounds; and

(b.) nothing in this section shall authorise the imposition of more than one fine in respect of the same offence.

These provisions seem to embody the general maritime law. See R. v. Ewen (1856), 2 Jur. (N. S.) 454; and The Minerva (1800), 3 C. Rob. 34.

(a) An Admiralty warrant to wear the blue ensign is granted to a merchant ship commanded by an officer of the Naval Reserve and having ten men of that force in the crew. See the King's Regulations, Art. 90. Warrants are also

granted to certain yacht clubs. See Lloyd's Register of Yachts.

(b) I.e., the "Pilot Jack." See s. 615 and Appendix, p. 756, for pilot signals. (c) Shall be forfeited." See s. 70, note (c).

66

(d) See Appendix, p. 763, R. S. C. (Merchant Shipping) 1894, Rule 1.

Pt. I. 74-76.

74.—(1.) A ship belonging to a British subject shall hoist Penalty on the proper national colours

ship not showing

(a.) on a signal being made to her by one of Her Majesty's colours. ships (including any vessel under the command of an [52 & 53 Vict. officer of Her Majesty's navy on full pay), and

(b.) on entering or leaving any foreign port, and
(c.) if of fifty tons gross tonnage or upwards, on entering or
leaving any British port.

(2.) If default is made on board any such ship in complying with this section, the master of the ship shall for each offence be liable to a fine not exceeding one hundred pounds.

(3.) This section shall not apply to a fishing boat duly entered in the fishing boat register and lettered and numbered as required by the Fourth Part of this Act.

c. 73, ss. 2, 4.]

75. The provisions of this Act with respect to colours worn Saving for by merchant ships shall not affect any other power of the Admiralty. Admiralty in relation thereto.

Forfeiture of Ship.

76.—(1.) Where any ship has either wholly or as to any share therein become subject to forfeiture (a) under this Part of this Act,

(a.) any commissioned officer on full pay in the military or naval service of Her Majesty;

(b.) any officer of Customs in Her Majesty's dominions; or (c.) any British consular officer,

may seize and detain (b) the ship, and bring her for adjudication before the High Court in England or Ireland, or before the

[52 & 53 Vict. c. 73, s. 5.]

Proceedings on forfeiture of ship. [1854, 88. 52, 103; J. A.; J. I. A.]

Pt. I. 77.

[1854, s. 104.]

Rules for

ascertaining

register tonnage.

[1854, ss. 2024, 29; 18 &

19 Vict. c. 91, 8. 14; 35 & 36 Vict. c. 73,

Vict. c. 43,

s. 1.]

Court of Session in Scotland, and elsewhere before any Colonial Court of Admiralty or Vice-Admiralty Court in Her Majesty's dominions, and the court may thereupon adjudge the ship with her tackle, apparel, and furniture to be forfeited to Her Majesty, and make such order in the case as to the court seems just, and may award to the officer bringing in the ship for adjudication such portion of the proceeds of the sale of the ship, or any share therein, as the court think fit.

(2.) Any such officer as in this section mentioned shall not be responsible either civilly or criminally to any person whomsoever in respect of any such seizure or detention as aforesaid, notwithstanding that the ship has not been brought in for adjudication, or if so brought in is declared not liable to forfeiture, if it is shown to the satisfaction of the court before whom any trial relating to such ship or such seizure or detention is held that there were reasonable grounds (c) for such seizure or detention; but if no such grounds are shown the court may award costs and damages to any party aggrieved, and make such other order in the premises as the court thinks just.

(a) See s. 70, note (c). See also M. S. A. 1906, s. 51 (2), for forfeiture on failure to prove title.

(b) See, as to enforcement of detention, s. 692.

(c) As to what are reasonable grounds, reference may be made to Wilson v. The Queen (1866), L. R. 1 P. C. 405; Burns v. Nowell (1880), 49 L. J. Q. B. 468; 5 Q. B. D. 444.

Measurement of Ship and Tonnage.

As to tonnage for the purposes of limitation of liability, see s. 503, sub-s. (2), and M. S. A. 1906, s. 69.

As to the tonnage of ships not measured or re-measured in accordance with the (repealed) M. S. (Tonuage) Act, 1889, see s. 745, sub-s. (3).

77.-(1.) The tonnage of every ship to be registered, with the exceptions hereinafter mentioned, shall, previously to her being registered, be ascertained by Rule I. in the Second Schedule to this Act (a), and the tonnage of every ship to which that Rule I. can be applied, whether she is about to be registered or not, shall be ascertained by the same rule.

(2.) Ships which, requiring to be measured for any purpose s. 3; 52 & 53 other than registry, have cargo on board, and ships which, requiring to be measured for the purpose of registry, cannot be measured by Rule I., shall be measured by Rule II. in the said Schedule, and the owner of any ship measured under Rule II. may at any subsequent period apply to the Board of Trade to have the ship re-measured under Rule I., and the Board may thereupon, upon payment of such fee not exceeding seven shillings and sixpence for each transverse section as they may authorise, direct the ship to be re-measured accordingly, and the number denoting the register tonnage shall be altered accordingly.

(3.) For the purpose of ascertaining the register tonnage of a ship the allowance and deductions hereinafter mentioned shall be made from the tonnage of the ship ascertained as aforesaid.

(4.) In the measurement of a ship for the purpose of ascertaining her register tonnage, no deduction shall be allowed in respect of any space which has not been first included in the measurement of her tonnage.

(5.) In ascertaining the tonnage of open ships Rule IV. in the said Schedule shall be observed.

(6.) Throughout the rules in the Second Schedule to this Act, the tonnage deck shall be taken to be the upper deck in ships which have less than three decks (b), and to be the second deck from below in all other ships, and in carrying those rules into effect all measurements shall be taken in feet, and fractions of feet shall be expressed in decimals.

(7.) The Board of Trade may make such modifications and alterations as from time to time become necessary in the rules in the Second Schedule to this Act (c) for the purpose of the more accurate and uniform application thereof, and the effectual carrying out of the principle of measurement therein adopted.

(8.) The provisions of this Act relating to tonnage, together with the rules for the time being in force, are in this Act referred to as the tonnage regulations of this Act.

(a) The rules now scheduled were in the body of the Act of 1854.

(b) See The Lord Advocate v. Clyde S. N. Co., cited under Rule I. (4), 2nd Schedule, post, p. 429.

(c) The corresponding words of the Act of 1854 (s. 29) were "in the tonnage rules hereby prescribed," but the power of alteration was held to be limited to such rules as are now scheduled. The City of Dublin S. Packet Co. v. Thompson (1866), 34 L. J. C. P. 316; 19 C. B. (N. S.) 553; affirmed, 35 L. J. C. P. 198; 1 C. P. 355.

For a certain modification made under the power here contained, with regard to vessels having double bottoms for water ballast, see Appendix, p. 524.

Pt. I.

78.

space in

78.-(1.) In the case of any ship propelled by steam or other Allowance for power requiring engine room, an allowance shall be made for engine-room the space occupied by the propelling power, and the amount so steamships. allowed shall be deducted from the gross tonnage of the ship [1854, s. 23; ascertained as in the last preceding section mentioned, and the 35 & 36 Vict. c. 73, s. 3.] remainder shall (subject to any deductions hereinafter mentioned) be deemed to be the register tonnage of the ship, and that deduction shall be estimated as follows (that is to say), (a.) As regards ships propelled by paddle wheels in which the tonnage of the space solely occupied by and necessary for the proper working of the boilers and machinery is above twenty per cent. and under thirty per cent. of the gross tonnage of the ship, the deduction shall be thirty-seven one-hundredths of the gross tonnage; and in ships propelled by screws, in which the tonnage of such space is above thirteen per cent. and under

Pt. I. 79.

[52 & 53 Vict. c. 43, s. 2.]

[1854, s. 23, (+).]

Deductions

for ascertain ing tonnage. [52 & 53 Vict. c. 43, s. 3;

30 & 31 Vict. c. 124, 8. 9.]

twenty per cent. of the gross tonnage, the deduction shall be thirty-two one-hundredths of the gross tonnage: (b.) As regards all other ships, the deduction shall, if the Board of Trade and the owner both agree thereto, be estimated in the same manner; but either they or he may, in their or his discretion, require the space to be measured and the deduction estimated accordingly; and whenever the measurement is so required, the deduction shall consist of the tonnage of the space actually occupied by or required to be enclosed for the proper working of the boilers and machinery, with the addition in the case of ships propelled by paddle wheels of one half, and in the case of ships propelled by screws of three-fourths of the tonnage of the space; and in the case of ships propelled by screws, the contents of the shaft trunk shall be added to and deemed to form part of the space; and the measurement of the space shall be governed by Rule III. in the Second Schedule to this Act.

(2.) Such portion of the space above the crown of the engine room and above the upper deck as is framed in for the machinery or for the admission of light and air shall not be included in the measurement of the space occupied by the propelling power, except in pursuance of a request in writing to the Board of Trade by the owner of the ship, but shall not be included in pursuance of that request unless

(a.) that portion is first included in the measurement of the gross tonnage; and

(b.) a surveyor of ships certifies that the portion so framed in is reasonable in extent and is so constructed as to be safe and seaworthy, and that it cannot be used for any purpose other than the machinery or for the admission of light and air to the machinery or boilers of the ship.

(3.) Goods or stores shall not be stowed or carried in any space measured for propelling power, and if the same are so carried in any ship, the master and owner of the ship shall each be liable to a fine not exceeding one hundred pounds.

For a history of the above allowance, see The Brunel, 69 L. J. P. 8; [1900] P. 24 at p. 33.

79.-(1.) In measuring or re-measuring a ship for the purpose of ascertaining her register tonnage (a), the following deductions shall be made from the space included in the measurement of the tonnage, namely:

(a.) in the case of any ship,

(i.) any space used exclusively for the accommodation of the master; and any space occupied by seamen

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