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Pt. IV. 35-36.

Recovery of

expenses from owner.

Certificate of

proper authority required

where a seaman is left behind abroad.

removed to a proper return port, the shipowner appears to be bound to maintain him for the rest of his life.

() As to deductions, see M. S. A. 1894, s. 133.

35 (a).-(1.) If any of the expenses attendant on the illness, hurt, or injury of a seaman (b), which are to be paid under the Merchant Shipping Acts by the master or owner, are paid by any authority on behalf of the Crown, or if any other expenses in respect of the illness, hurt, or injury of any seaman whose wages are not accounted for under the Merchant Shipping Acts to that authority, are so paid, those expenses shall be repaid to the authority by the master or owner of the ship.

(2.) If the expenses are not so repaid, the amount thereof shall with costs be a charge upon the ship, and be recoverable from the master or from the owner of the ship for the time being, or where the ship has been lost from the person who was the owner of the ship at the time of the loss, or where the ship has been transferred to some person not being a British subject, either from the owner for the time being or from the person who was the owner of the ship at the time of the transfer, as a debt to the Crown, either by ordinary process of law or in the court and in the manner in which wages (c) may be recovered by seamen.

(3.) In any proceeding for such recovery, a certificate of the facts, signed by the said authority, together with such vouchers (if any) as the case requires, shall be sufficient proof (d) that the said expenses were duly paid by that authority.

(a) This section takes the place of s. 208 of M. S. A. 1894.
(b)" Seaman includes apprentice. See s. 49, post.

(c) As to recovery of wages, see M. S. A. 1894, ss. 164-167, and notes thereto.

(d) Quære, not conclusive proof. See Board of Trade v. Sailing Ship Glenpark, 73 L. J. K. B. 315; [1904] 1 K. B. 682.

36 (a).-(1.) The master of a British ship shall not leave a seaman (b) behind at any place out of the United Kingdom, ashore or at sea (except where the seaman is discharged in accordance with the Merchant Shipping Acts), unless he previously obtains, endorsed on the agreement with the crew, the certificate of the proper authority (e) as defined for the purpose in this Part of this Act, stating the cause of the seaman being left behind, whether the cause be unfitness or inability to proceed to sea, desertion (d), or disappearance or otherwise (e).

(2.) The authority to whom an application is made for a certificate under this section may, and, if not a merchant, shall, examine into the grounds on which a seaman is to be left behind, and for that purpose may, if he thinks fit, administer oaths, and

may grant or refuse the certificate as he thinks just, but the certificate shall not be unreasonably withheld.

(3.) If the master of a ship fails to comply with this section, he shall (without prejudice to his liability under any other provision of the Merchant Shipping Acts) be guilty in respect of each offence of a misdemeanor (f), and in any legal proceeding for the offence it shall lie on the master to prove that the certificate was obtained or could not be obtained without unreasonable delay to the ship or was unreasonably withheld.

(a) This section takes the place of s. 188 of M. S. A. 1894.
(b) "Seaman" here includes apprentice. See s. 49, post.
(c) As to the proper authority, see s. 49.

(d) In summary proceedings before justices by a seaman to recover his wages, it was held that the consul's certificate (given under the similar provisions of the repealed s. 207 of M. S. A. 1854) was not conclusive evidence of the fact of desertion. Lewis v. Jewhurst (1866), 15 L. T. 275; 2 M. L. C. (O. S.) 489. See also Board of Trade v. Sailing Ship Glenpark, 73 L. J. K. B. 315; [1904] 1 K. B. 682. As to desertion, see note (i) to s. 42, post.

(e) Compare s. 42 (4).

(f) As to prosecution for a misdemeanor, see M. S. A. 1894, s. 680 et seq.

Pt. IV. 37-38.

of seaman

37.—(1.) Where a master of a British ship leaves a seaman (a) Account of behind on shore in any place out of the United Kingdom on the wages in case ground of his unfitness or inability to proceed to sea, he shall deliver to the person signing the required certificate of the proper authority a full and true account of the wages due (b) to the seaman, and if that person is a consular officer (c) shall deliver the account in duplicate.

(2.) If a master fails without reasonable cause to deliver the account, he shall for each offence be liable, on summary conviction, to a fine not exceeding ten pounds, and if he knowingly delivers a false account, he shall for each offence be liable, on summary conviction, to a fine not exceeding twenty pounds, in addition in each case to the payment of the wages.

This section with ss. 38 and 39 takes the place of s. 189 of M. S. A. 1894.

(a) "Seaman" here includes apprentice. See s. 49.

(b) As to the amount of wages due in such cases, see M. S. A. 1894, s. 158. "Wages "include emoluments, M. S. A. 1894, s. 742.

(c) For meaning, see M. S. A. 1894, s. 742.

left behind on ground of unfitness or inability to proceed to sea.

seaman left

ground of

38.-(1.) The master shall pay the amount of wages due to a Payment of seaman left behind on the ground of his unfitness or inability to wages of proceed to sea, if he is left in a British possession (a) to the behind on seaman himself, and if he is left elsewhere to the British consular officer (a). (2.) Where payment is made to a British consular officer, that officer shall retain one duplicate of the account delivered to him, and, if satisfied with the account, endorse on the other duplicate

unfitness or inability to

proceed to sea.

Pt. IV.

39.

Application by British

consular officer of

payments on account of wages of seamen left behind.

a receipt for the payment, and return it to the master, and the master shall deliver the duplicate within forty-eight hours of his return to his port of destination, if that port is in the United Kingdom, to the superintendent at that port, and, if that port is not in the United Kingdom, to the proper authority as defined for the purpose of this Part of this Act (b).

(3.) The payment shall be made, whenever it is practicable, in money (c), and, when not so practicable, by bills drawn on the owner of the ship, but if payment is made by bill—

(a.) the person signing the required certificate of the proper authority shall certify by endorsement on the bill that the bill is drawn for seamen's wages, and shall also endorse on the agreement with the crew the amount for which the bill is drawn, and such further particulars as the Board of Trade require;

(b.) if the bill is drawn by the master, the owner of the ship shall be liable to pay the amount to the holder or endorsee thereof; and it shall not be necessary in any proceeding against the owner upon the bill to prove that the master had authority to draw it;

(c.) a bill purporting to be drawn and endorsed under this section shall, if produced out of the custody of the Board of Trade or of the Registrar-General of Shipping and Seamen, or of any superintendent, be admissible in evidence; and any endorsement on any such bill purporting to be made in pursuance of this section shall also be admissible as evidence of the facts stated in the endorsement (d).

(4.) If a master fails, without reasonable cause, to make such payment of wages as provided by this section, he shall for each offence be liable, on summary conviction, in addition to the payment of the wages, to a fine not exceeding ten pounds (e).

In The Rajah of Cochin (1859), Swa. 473, it was held that the analogous enactment of M. S. A. 1854, s. 209, was an additional provision in favour of the seaman, and left the other remedies for the recovery of his wages untouched. (a) See M. S. A. 1894, s. 742, and notes thereon, for definitions.

(b) Defined, 8. 49.

(c) As to payment in foreign money, see M. S. A. 1894, s. 140.

(d) As to admissibility of documents in evidence, see M. S. A. 1894, ss. 256,

695.

(e) As to recovery of fine, see M. S. A. 1898, s. 680 (b).

39. Where the amount of wages due to a seaman (a) left behind on the ground of his unfitness or inability to proceed to sea is so paid to a British consular officer, that officer shall deal with the sum so paid to him in the following manner, namely:(1.) If the seaman subsequently obtains employment at or quits the port at which the payment has been made,

he shall deduct out of the sum any expenses incurred
by him in respect of the maintenance of the seaman
under the Merchant Shipping Acts, except such as the
owner or master is by the Merchant Shipping Acts
required to defray, and shall pay the remainder to the
seaman, and deliver to him an account of the sums so
received and expended on his behalf;

(2.) If the seaman dies before (b) his ship quits the port, he
shall deal with the sum as part of the property of a
deceased seaman (c); and

(3.) If the seaman is sent to a proper return port at the public expense under the Merchant Shipping Acts, he shall account for the sum to the Board of Trade; and the sum, after deducting any expenses duly incurred in respect of the seaman, except such expenses as the master or owner of the ship is required by the Merchant Shipping Acts to pay, shall be dealt with as wages of the seaman.

(a) "Seaman" here includes apprentice. See s. 49.

(b) As to the property of a seaman who dies after the ship has left the port where he was landed, see M. S. A. 1894, ss. 172, 173.

(c) See M. S. A. 1894, ss. 169 to 181, as to property of deceased seamen.

Pt. IV. 40-41.

and main

40 (a). The Board of Trade shall make regulations (b) with Regulations respect to the relief, maintenance, and return to a proper return as to relief port (c) of shipwrecked seamen (d) and of seamen found otherwise tenance of in distress in any place out of the United Kingdom, and may, distressed by those regulations (in this Act referred to as the distressed seamen. seamen regulations), make such conditions as they think fit with regard to that relief, maintenance, and sending to a proper return port, and a seaman shall not have any right to be relieved, maintained, or sent to a proper return port, except in the cases and to the extent and on the conditions provided by those regulations.

(a) This section takes the place of the repealed s. 190 of M. S. A. 1894. (6) For the regulations in force, see Instructions to Superintendents of Mercantile Marine Offices, &c.

(c) See s. 45, as to proper return port.

(d) "Seaman" here includes apprentice. See s. 49.

41 (a).-(1.) Where either

maintenance

(a.) any seamen (6), whether subjects of His Majesty or Provisions for
not, are found in any place out of the United relief and
Kingdom, and have been shipwrecked from any of distressed
British ship or any of His Majesty's ships, or by seamen.
reason of having been discharged or left behind

from any such ship in any place out of the United
Kingdom, are in distress (c) in that place, or

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(b.) any seamen, being subjects of His Majesty, who have been engaged by any person acting either as principal or agent to serve in a ship belonging to the government or to a subject or citizen of a foreign country, are in distress in any place out of the United Kingdom (d),

the proper authority as defined for the purpose in this Part of this Act (e) may, and if not a merchant, shall, in accordance with and on the conditions prescribed by the distressed seamen regulations, provide in accordance with this Act for the return of those seamen (who are in this Act included in the term distressed seamen) to a proper return port (ƒ), and also provide for their necessary clothing and their maintenance until their departure for such a port, and, in addition, in the case of shipwrecked seamen for the repayment of any expenses incurred in their conveyance to port after their shipwreck, and their maintenance while being so conveyed.

(2.) The authority shall be paid in respect of the expenses incurred under this section on behalf of distressed seamen such sums as the Board of Trade may allow, and those sums shall, on the production of the bills of disbursements, with the proper vouchers, be paid as provided by this Part of this Act.

(a) This section takes the place of s. 191 of M. S. A. 1894, which is repealed by M. S. A. 1906, s. 85, Sched. II.

(b) "Seaman" here includes apprentice. See s. 49.

(c) It is a question of fact whether or not a seaman is "in distress." Receipt of wages by a seaman sufficient to maintain him and pay his passage to a return port does not necessarily show that he was not a distressed seaman. Board of Trade v. Sailing Ship Glenpark, Ltd., 73 L. J. K. B. 315; [1904] 1 K. B. 682. Distressed seamen are not passengers, and a ship carrying them is not liable to compulsory pilotage as carrying passengers. The Clymene, 66 L. J. P. 152; [1897] P. 295.

(d) The effect of ss. 40, 41 and 42, is to enable the Board of Trade to provide for the maintenance of seamen, being British subjects, who, having been engaged for service on a foreign ship, are in distress, and to recover the expenses of their relief.

(e) At s. 49.

(f) See s. 45, as to what is proper return port.

42 (a).-(1.) Where any expenses (other than excepted expenses as defined by this section) are incurred by or on behalf of the Crown, or are incurred by the government of a foreign country, and repaid to that government by or on behalf of the Crown, on account of a distressed seaman (b), either for his maintenance, necessary clothing, conveyance to a proper return port (c), or in case of death for his burial, or otherwise in accordance with this Act, those expenses (together with the wages (d), if any, due (e) to the seaman) shall be a charge upon the ship, whether British or foreign, to which the distressed seaman belonged, and shall be a debt to the Crown from the master of the ship, or from the owner of the ship for the time being, or,

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