or misconduct, and provided for due inquiry being made by tribunals named in the Act into such charges. The Merchant Shipping Act, 1862, vests the power of cancelling or suspending the certificate, except in cases where the master is shown to have been convicted of an offence, in the tribunals by which the case is investigated, and the Merchant Shipping Act, 1876, confers the same power in certain cases upon a wreck commissioner. The Merchant Shipping Act, 1876, which repealed similar provisions of a like character in the Merchant Shipping Acts of 1854 and 1862, enacted that the wreck commissioner, justices, or other authority holding a formal investigation into a shipping casualty, should hold the same with the assistance of an assessor or assessors. The Shipping Casualties Investigation Act, 1879, contains further provisions respecting the appointment of assessors for such investigations, and provides (t) that where any such investigation involves, or appears likely to involve, any question as to the cancelling or suspension of the certificate of a master, mate or engineer, it shall be held with the assistance of not less than two assessors having experience in the merchant service. The Board of Trade may, if they deem it just, re-issue and return any certificate, or shorten the time of suspension, or grant a new certificate of the same or of a lower grade (u). (t) The 42 & 43 Vict. c. 72, s. 3. (u) The M. S. Act, 1862, s. 23, sub-s. 4. The following summary of the provisions of the statutes, prior to the Shipping Casualties Act of 1879, may be found useful:-The 241st section of the M. S. Act, 1854, provides, that if the Board of Trade, or any local marine board, has reason to believe that any master or mate is, from incompetency or misconduct, unfit to discharge his duties, the board may either institute an investigation, or may direct the local marine board at or nearest to the place at which it may be convenient for the parties to attend, to institute the same, and thereupon such persons as the Board of Trade may appoint for the purpose, or, as the case may be, the local marine board, shall, with the assistance of a local stipendiary magistrate, or of a competent legal assistant, to be appointed by the Board of Trade, conduct the investigation in the manner pointed out in the section, and shall, on the conclusion of the investigation, make a report on the case to the Board of Trade; and in cases where there is no local marine board before which the parties can conveniently attend, or where such local marine board is unwilling to institute the investigation, the Board of Trade may order the same to be instituted before two justices or a stipendiary magistrate, and thereupon such investigation shall be conducted, and the results thereof reported in the same manner, and with the same powers in and with which formal investigations into wrecks and casualties are directed to be conducted, and the results thereof reported under the provisions contained in the eighth part of this Act, save only that if the Board of Trade so directs, the person bringing the charge of incompetency or misconduct to the notice of the Board of Trade shall be deemed to be the party having the conduct of the same. The 242nd section provides that the Board of Trade may suspend or cancel the certificate of any master or mate― The Shipping Casualties Investigations Act, 1879, s. provides that where an investigation into the conduct of "1. If upon any investigation made in pursuance of sect. 241, he is reported to be incompetent or to have been guilty of any gross act of misconduct, drunkenness, or tyranny. “2. If upon any investigation conducted under the provisions contained in the eighth part of this Act, or upon any investigation made by a Naval Court (see sect. 262), it is reported that the loss or abandonment of, or serious damage to, any ship, or loss of life has been caused by his wrongful act or default. "3. If he is superseded by the order of any Admiralty Court (see sect. 240) or any Naval Court (see sect. 26). 4. If he is shown to have been convicted of any offence. "5. If upon any investigation made by any Court or tribunal authorized, or hereafter to be authorized by the legislative authority, in any British possession, to make inquiry into charges of incompetency or misconduct on the part of masters or mates of ships, or as to shipwrecks or other casualties affecting ships, a report is made by such Court or tribunal to the effect that he has been guilty of any gross act of misconduct, drunkenness or tyranny, or that the loss or abandonment of, or serious damage to any ship, or loss of life has been caused by his wrongful act or default, and such report is confirmed by the governor of such possession." The provisions above referred to with respect to investigations conducted under the eighth part of the said Act are contained in the 432nd and the following sections, and are in substance as follows:-Such investigations are to be conducted before two justices or a stipendiary magistrate, and may be instituted on the application of an inspecting officer of the coast guard, or a principal officer of customs, or by the direction of the Board of Trade in any of the following cases:1. Whenever any ship is lost, aban doned, or materially damaged on or near the coasts of the United Kingdom; 2. Whenever any ship causes loss or material damage to any other ship on or near such coast; 3. Whenever, by reason of any casualty happening to or on board of any ship on or near such coast, loss of life ensues; 2, Appeal a cellation of 4. Whenever any such loss, abandonment, damage, or casualty happens elsewhere, and any competent witnesses thereof arrive at any place in the United Kingdom; The justices or stipendiary magistrate shall send a report to the Board of Trade, and they may call for the certificate of the master or mate, and they may either return the same, or, if their report is such as to enable the Board of Trade to cancel or suspend the certificate, they shall forward the certificate to the Board of Trade, to be dealt with as the board may think fit. The 11th section of the M. S. Act, 1862, extends the provisions of the 241st section of the M. S. Act, 1854, to certificated engineers. The 23rd section of the M. S. Act, 1862, enacts that the power of cancelling or suspending the certificate of a master or mate, conferred by the 242nd section of the M. S. Act, 1854, shall, except in the case provided for by the 4th paragraph of the section, vest in and be exercised by the Local Marine Board, magistrates, Naval Court, Admiralty Court, or other Court or tribunal by which the case is investigated, and not by the Board of Trade, and that such power, shall extend to the cancelling or suspending the certificates of engineers. The same section requires that the decision of the tribunal shall be delivered in open Court, and a full report of all the proceedings forwarded to the Board of Trade; and it provides that the Board of Trade may, if they think the justice of the cases require it, re-issue and return any certificate which has been cancelled or suspended. The M. S. Act, 1873 (s. 16), enacts that every master or person in charge of a British vessel, who fails, without reasonable excuse, in case of collision, to render such assistance or give such information as is required by the Act, shall be deemed guilty of a misdemeanor, and if he is a certificated officer, an inquiry into his conduct may be held, and his certificate may be cancelled or suspended. The M. S. Act, 1876, contains provisions for the appointment of wreck commissioners for investigating shipping casualties. It provides (sect. 29) that it shall be the duty of a wreck against can certificate. master, mate or engineer, or into a shipping casualty, has been held under the Merchant Shipping Act, 1854, or any act amending the same, or under any provision for holding such investigations in a British possession, the Board of Trade may, in any case, and shall, if new and important evidence which could not be produced at the investigation has been discovered, or if for any other reason there has in their opinion been ground for suspecting a miscarriage of justice, order that the case be reheard, either generally or as to any part thereof, and either by the Court or authority by whom it was heard in the first instance, or by the wreck commissioner, or in England or Ireland by a judge of her Majesty's High Court of Justice exercising jurisdiction in Admiralty cases, or in Scotland by the Senior Lord Ordinary, or any other judge in the Court of Session whom the Lord President of that Court may appoint for the purpose (r). And the same section further provides that where in any such investigation, a decision has been given with respect to the cancelling or suspension of the certificate of a master, mate or engineer, and an application for a re-hearing has not been made or has been refused, an appeal shall lie from the decision to the following Courts: namely, (a.) If the decision is given in England or by a naval Court, the Probate, Divorce and Admiralty Division of her Majesty's High Court of Justice: (b.) If the decision is given in Scotland, either division of the Court of Session: (c.) If the decision is given in Ireland, the High Court of Admiralty, or the judge or division of her Majesty's High Court of Justice exercising jurisdiction in Admiralty cases (y). commissioner, at the request of the Board of Trade, to hold any formal investigation into a loss, abandonment, damage, or casualty under the eighth part of the M. S. Act, 1854, and for that purpose he shall have the same jurisdiction and powers as are thereby conferred on two justices, and all the provisions of the M. S. Acts, 1854 to 1876, with respect to investigations conducted under the eighth part of the M. S. Act, 1854, shall apply to investigations held by a wreck commissioner. A wreck commissioner, it seems, does not possess the power conferred on justices by the 241st section of the M. S. Act, 1854, and his jurisdiction to cancel or suspend a master or mate's certificate seems to extend only to the cases mentioned in the 432nd section of the M. S. Act, 1854. Ex parte Story, 3 Q. B. D. 166. See generally as to the cancellation of certificates, Ex parte Fergusson, L. R., 6 Q. B. 280. False swearing before a court of inquiry is perjury, Reg. v. Tomlinson, L. R., 1 C. C. R. 49. As to the practice before such courts, see Reg. v. Collingridge, 34 L. J., Q. B. 9. (x) The 42 & 43 Vict. c. 72, supra, App. 169. (3) The same section provides that any re-hearing or appeal shall be subject to and conducted in accordance serve. The Officers of Naval Reserve Act, 1863 (26 & 27 Vict. c. 67), Officers of Naval Reprovides for her Majesty accepting the services of masters or mates of merchant ships to serve as officers on board her Majesty's ships. The 17th section of the Merchant Shipping Act, 1872, provides that her Majesty may accept offers of persons recommended by the Admiralty to serve as officers of the Royal Naval Reserve. Secondly, as to the appointment and remuneration of the master. APPOINTMENT. It often occurs that the master is also a part owner of the ship he commands, in which case his appointment is a matter of agreement between himself and the other owners (≈). Where this is not so, the right of appointing him is vested in the owner, or, if there be more than one owner, in the majority, in proportion, not to their number, but to the amount of their interest in the ship (a). Cases may, however, arise in which it may become necessary, for the prosecution of the voyage, to appoint a master, although no communication can be had with the owners. In one instance where, as a measure of necessity, the consignees of a cargo appointed a master in the stead of one who had deserted at a foreign port, the Court of Admiralty said, that it would feel strongly inclined to hold him entitled to the privileges and competent to discharge the functions of a master appointed in the most regular manner (b). And the same Court upheld the appointment of a master made by a British consul at a foreign port, to which the ship had come after the master had been murdered in a mutiny (c). The name of the master must be entered or endorsed upon the certificate of registry (d). In every contract of service between the owner of a ship and the master or any seamen, whether express or implied, there is a statutory obligation that the owner and every agent engaged in preparing the ship for sea shall use all reasonable efforts to insure the seaworthiness of the ship at the commencement of and during the continuance of her voyage (e). with such conditions and regulations as may from time to time be prescribed by general rules made under the M. S. Act, 1876, s. 30. () When this is the case, it is necessary carefully to observe in which of his two characters he does any particular act. See ante, Chap. II. OWNER. (a) Molloy, B. 2, c. 1, s. 4. (b) See the judgment of Sir W. Scott in The Alexander, 1 Dods. 281. (c) The Cynthia, 16 Jur. 748. See also The Eliza Cornish, 17 Jur. 738; S. C. 1 Spinks, 36. (d) The M. S. Act, 1854, ss. 44, 46. See post, 131, n. (m). (e) The M. S. Act, 1876, s. 5. REMOVAL. WAGES AND MASTER. The right to remove the master is, in ordinary cases, vested in the persons who have the right to appoint him (e). It is provided, however, by the Merchant Shipping Act, 1854, that a Court of Admiralty may, upon the application of the owner of any ship which is within its jurisdiction, or on that of his agent or of a part owner or consignee, or of a certificated mate, or of one third or more of the crew, remove the master of the ship, if it be proved on oath to the satisfaction of the Court that the removal is necessary. In these cases the Court may, with the consent of the owner, agent or consignee (or without their consent if they are not within the jurisdiction), appoint a new master (f). By the same statute, any naval court held on the high seas or abroad may, if unanimous that the safety of the ship or crew or the interest of the owner absolutely requires it, supersede the master and appoint another in his stead. The consent, however, of the consignee of the ship, if he be at the place where the inquiry takes place, must be obtained to the appointment of the new master (g). The principal source of remuneration to the master for his services is the wages which he receives from the owner. As the consideration for this is the performance of his duty, if he be guilty of any gross misconduct, as barratry or habitual drunkenness, or exhibit gross incapacity, it seems that an entire forfeiture of his wages will ensue (). But circumstances seldom occur to call for the enforcement of this extreme rule. Where, however, the master by his neglect or misconduct has occasioned which is not limited to the class of persons enumerated in sect. 239. The Royalist, Br. & L. 46; 32 L. J., P. M. & A. 105. By sect. 241, the Board of Trade, or any local marine board, is empowered to institute an investigation in any case in which they have reason to believe that any master or mate is from incompetency or misconduct unfit to discharge his duties. (9) The M. S. Act, 1854, s. 263. As to the constitution of these naval courts, see post, Chapter IV., CREW. (h) The Thomas Worthington, 3 W. Rob. 128; The Atlantic, Lush. 566; The Exeter, 2 C. Rob. 261; The Blake, 1 W. Rob. 73; The Lima, 3 Hagg. 356. |