Naval Courts may be summoned for hearing complaints, and investigating wrecks on the

high seas or abroad.

Constitution of such Courts.

General func

tions and mcde of action of

such Courts.

by him, or fraudulently withholds, retains, or keeps back the same or any part thereof contrary to any lawful directions or instructions which he is required to obey in relation to such office or service, is deemed guilty of embezzlement within the meaning of that statute; and is liable on conviction to the same pains and penalties as are thereby imposed upon any clerk or servant for embezzlement.(h)

Naval Courts on the High Seas and Abroad.(i)

§ 9. By "The Merchant Shipping Act, 1854," a Court called a "Naval Court," with extensive powers as regards both master and seamen, may be summoned by any officer in command of any ship of Her Majesty on any foreign station, or, in the absence of such officer, by any consular officer, in any of the following cases, viz.:

(1) Whenever a complaint which appears to such officer to require immediate investigation is made to him by the master of any British ship, or by any certificated mate, or by one or more of the seamen belonging to any such ship:

(2) Whenever the interest of the owner of any British ship or of the cargo of any such ship appears to such officer to require it:

(3) Whenever any British ship is wrecked or abandoned or otherwise lost at or near the place where such officer may be, or whenever the crew or part of the crew of any British ship which has been wrecked, abandoned, or lost abroad, arrives at such place.(k)

§ 10. Every such Court must consist of not more than five and not less than three members, of whom, if possible, one must be an officer in the Royal Navy not below the rank of lieutenant, one a consular officer, and one a master of a British merchant ship, and the rest, either officers in the Royal Navy, masters of British merchant ships, or British merchants. Such a Court may include the person who summoned it, but not the master or consignee of the ship to which the parties complaining or complained against belong; and the naval or consular officer, if only one, in such Court, or, if more than one, the naval or consular officer who, according to any regulations in force for settling their respective ranks is of the highest rank, is the president of the Court.(/)

It is the duty of the Court to hear and investigate the matter brought before it, and it may for that purpose summon and compel the attendance of parties and witnesses, administer oaths,

(h) See this note on p. 5.

(i) The sections of the Merchant Shipping Act, 1854, referred to in the following SS, apply to all ships registered in the Queen's dominions, when out of

the jurisdiction of their respective govern.
ments, 17 & 18 Vict. c. 104, s. 109: infra
§ 485, note (e).

(k) 17 & 18 Vict. c. 104, s. 260.
(1) Ibid., s. 261.

1

and order the production of documents.

The investigation must

be so conducted as to give any person against whom any charge

is made an opportunity of making a defence. (m)

§ 11. After hearing the case the Court may exercise the Powers of following powers:

such Courts:

(1) It may, if unanimous that the safety of the ship or crew, or the To supersede interest of the owner, absolutely requires it, supersede the master, the master: [and in such case may also cancel or suspend his certificate (n)], and may appoint another person to act in his stead; but no such appointment shall be made without the consent of the consignee of the ship, if then at the place:

(2) It may discharge any seaman from his ship:

(3) It may order the wages of any seaman so discharged or any part of such wages to be forfeited, and may direct the same either to be retained by way of compensation to the owner, or to be paid into the receipt of Her Majesty's Exchequer in the same manner as other penalties and forfeitures under this Act:

To discharge

a seaman:

To forfeit wages:

To decide disputes as to wages, &c.

To direct costs of imprisonment to be

(4) It may decide any questions as to wages, or fines, or forfeitures, arising between any of the parties to the proceedings: (5) It may direct that all or any of the costs incurred by the master or owner of any ship in procuring the imprisonment of any seaman or apprentice in a foreign port, or in his maintenance whilst so imprisoned, shall be paid out of and deducted from the wages of such seaman or apprentice, whether then or subsequently earned: (6) It may exercise the same powers with regard to persons charged before it with the commission of offences at sea or abroad as are by offenders for this Act given to British consular officers:

paid out of

wages.

To send home

trial.

(7) It may order the cost of the proceeding before it (if any), or any To order payportion thereof, to be paid by any of the parties thereto, and may ment of order any person making a frivolous or vexatious complaint to pay costs, &c. compensation for any loss or delay caused thereby; and any cost or compensation so ordered shall be paid by such person accordingly, and may be recovered in the same manner in which the wages of seamen are recoverable, or may, if the case admits, be deducted from his wages.(0)

§ 12. The Court also has power if summoned to hear any To try master complaint touching the conduct of the master, or any of the and crew for crew of any ship—

"to try the said master or any of the said crew for any offences against the Merchant Shipping Act 1854, in respect of which two justices would, if the case were tried in the United Kingdom, have power to convict summarily, and by order duly made to inflict the same punishment for such offences, which two justices might, in the case aforesaid, inflict upon summary conviction, provided that in cases where an offender is sentenced to imprisonment, the sentence shall be confirmed in writing by the senior naval or consular officer present at the place where the court is held, and the place of imprisonment, whether on land or on board ship, shall be approved by him as a proper place for the purpose,

(m) 17 & 18 Vict. c. 104, s. 262.

(B) Ibid., s. 242; 25 & 26 Vict. c. 63, & 23, § 54 infra.

(0) 17 & 18 Vict. c. 104, s. 263.

offences.

Orders to be entered in official log.

Report to be made of proceedings of Naval Courts.

Penalty for preventing

complaint or obstructing

and copies of all sentences made by any Naval Court summoned to hear any such complaint as aforesaid shall be sent to the commander-inchief or senior naval officer of the station."(p)

All orders duly made by the Court under the foregoing powers will in any subsequent legal proceedings be deemed conclusive as to the rights of the parties.(g)

§ 13. All orders made by Naval Court are required whenever practicable, to be entered in the official log book of the ship to which the parties to the proceedings belong, and to be signed by the president of the Court.(r)

The Court is also required to make a report to the Board of Trade, containing the following particulars:

(1) A statement of the proceedings, with the order made by the Court, and a report of the evidence:

(2) An account of the wages of any seaman or apprentice who is discharged from his ship by such Court:

(3) If summoned in order to inquire into a case of wreck or abandonment, a statement of the opinion of the court as to the cause of such wreck or abandonment, with such remarks on the conduct of the master and crew as the circumstances require :

The report must be signed by the president of the Court, and every document purporting to be such a report so signed, if produced out of the custody of some officer of the Board of Trade, is deemed to be such a report, unless the contrary is proved, and is receivable in evidence. (s)

§ 14. Any person who wilfully and without due cause prevents or obstructs the making of any complaint as above mentioned, or the conduct of any case or investigation by any Naval Court investigation. renders himself liable to a penalty not exceeding fifty pounds, or to imprisonment with or without hard labour for any period not exceeding twelve weeks.(†)

(p) 18 & 19 Vict. c. 91, s. 18.
(q) 17 & 18 Vict. c. 104, s. 263.

(r) Ibid., s. 264.
(8) Ibid., s. 265.

(t) Ibid., s. 267.

§§ 23, 24. His Qualifications 13 §§ 68-73.-His Remedies for

§§ 25-39. Examinations

and Certificates.

$$ 33-35. Examinations and Certificates (Pilotage, Masters and Mates)

224

15

Wages and Disbursements.

$$ 74-79. His Maritime
Lien.

23

31

35

38

§§ 36 - 39. Examinations
and Certificates (Engineers') 20
§ 40.-Examinations and C'er-
tificates (Colonial)

22

$41.-Examinations and Certificates (Frauds respecting) 23

Maritime Lien .

§§ 86-89.

Liabilities

Who may Appoint or Succeed him, and how Long his Authority

continues.

owners

§ 15. THE owners of a merchant ship seldom navigate it them- The shipselves. They generally entrust the management of it to an appoint. agent, who is called the master or captain of the ship. They often appoint a part owner to be the master. In the former case, he is the confidential servant or agent of the owner or owners who employ him; in the latter he is the agent of his coowners. In either case, he has a general authority to act for those who employ him.(a)

The right of appointing the master of a ship is vested in the According to owner, or if there be more than one owner, then in the majority. interest. But this majority is calculated, not by the number of the owners, but by the amount of their interest in the ship.(b) So that the

(a) Abbott, 13th ed. 119, per Bayley, J., Webster v. Seekamp, 4 B. & Ald. at p. 354.

(b) Molloy, b. 2, c. 1, s. 4; 1 Maude and Pollock, 4th ed. p. 119.

Duty of owners in selection.

Effects of change of ownership;

Appointment

of

abroad.

majority which appoints, is a majority of interest and not of numbers.

§ 16. In appointing to an office of such importance, the owners, or those of them, with whom the appointment lies, being usually a majority in interest, are bound, by a regard to their own advantage, and much more by their duty to others, to select him with care, and to exercise a free and impartial judgment in such selection.(c) They "ought not to appoint a man upon whose compliance with their orders and on whose prudence and discretion they cannot rely."(d) Any contract which is calculated to have the effect of fettering the judgment of those who have to select, and of binding them to concur in the nomination of particular persons, at the peril of an action, is a violation of that duty which is owing not only to the charterers, if any, and other part owners of the ship, but also to all whose life or property may be embarked in her, and is illegal and void.(e)

§ 17. If after a master has been appointed by the owners, a change of ownership in the ship takes place, either by sale or otherwise, the master retains whatever authority he possessed under such appointment, until he receives notice that the ownership is changed, and that his previous instructions, authority, or appointment are at an end. And he may, until he receives such notice, bind the new owners by contracts for the carriage of goods entered into by him pursuant to his original instructions.(f)

§ 18. Sometimes it becomes necessary for the prosecution of of new master the voyage, when the ship is in foreign ports, where it is impossible to communicate with the owners, either to appoint a master or to substitute a new master for the one who was appointed by the owners. The validity of such a transaction depends upon the fulfilment of two conditions: viz., first, it must be necessary; and secondly, it must be perfectly bona fide. The person, whose place and functions naturally point him out as the successor of the master, is the mate. But although it may be ground for suspicion if he is passed over, still that alone is not a ground for impeaching the appointment of another person.(g)

By whom such appointment may be made abroad.

The

The appointment of a master abroad has been sustained when made by the agent of the owner; (h) by the consignees (i) of the cargo; by the consignor of the cargo; by the furnishers of the

(c) Per Dr. Lushington, The Blake, 1 W. Rob. at p. 76.

(d) Per Bayley, J., Webster v. Seekamp, 4 B. & Ald. 354.

(e) Card v. Hope, 2 B. & C. 661, 674; Maclachlan, 4th ed. 135.

(f) The Mercantile, &c., Bank V.

Gladstone, L. R. 3 Ex. 233, see per
Kelly, C. B. at p. 238.

(g) Maclachlan, 4th ed. 172.

(h) The Kennersley Castle, 3 Hagg. 1. (i) The Alexander, Tate, 1 Dods. 278; The Rubicon, 3 Hagg. 9.