3011.
PUBLIC RECORD OFFICE
CO. 885
Reference :-
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 271A.
(GENERAL.)
LAW OFFICERS to BOARD OF TRADE.
January 23, 1882.
The Merchant Shipping Acts, 1854 to 1876.
CASE for the opinion of the Law Officers of the Crown and Mr. A. L. Smith.
By section 242 of the Merchant Shipping Act, 185417 & 18 Vict. c. 104., it is pro- vided as follows:-
The Board of Trade may suspend or cancel the certificate (whether of competency or service) of any master or mate in the following cases, that is to say, inter alia, sub- section 5-
If upon any investigation made by any court or tribunal authorised or hereafter to be authorised 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 abandon- ment 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 or person administering the government of such possession.
By section 23 of the Merchant Shipping Act Amendment Act, 1862, 25 & 26 Vict. c. 63., it is provided as follows, inter alia :-~-
Subsection 1. The power of cancelling or suspending the certificate of a master or mate by the 242nd section of the principal Act conferred on the Board of Trade shall, except in the case provided for by the 4th paragraph of the said 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 or tried, and shall not in future vest in or be exercised by the Board of Trade. Subsection 3. Every such board, court, or tribunal shall at the conclusion of the case, or as soon afterwards as possible, state in open court the decision to which they may have come with respect to cancelling or suspending certificates, and shall in all cases send a full report upon the case with the evidence to the Board of Trade and shall also, if they determine to cancel or suspend any certificate, forward such certificate to the Board of Trade with their report. Counsel will observe that under section 242 of the Merchant Shipping Act, 1854, where tribunals constituted in the manner provided by subsection 5 made a report to the Board of Trade to the effect that a master or mate had been guilty of any gross act of misconduct, or drunkenness, or tyranny, or that the loss or abandonment of, or serious damage to, any ship, or loss of life had been occasioned by his wrongful act or default, the confirmation of such report by the Governor or person administering the government of such possession was, under that section, necessary to enable the Board of Trade to suspend or cancel the certificate, and was in effect a condition pre- cedent to the exercise of that power.
By section 23 of the Act of 1802, however, the power of cancelling or suspending certificates was transferred to the court or tribunal itself by which the case is investi- gated or tried, and no doubt it may be argued that no larger power could have been so transferred than was possessed originally under section 242, Merchant Shipping Act, 1854, by the Board of Trade, and therefore, that the limitation of the power implied by the requirement that the report should be confirmed by the Governor would neces- sarily attach to the power as transferred to the court itself.
It becomes difficult, however, to reconcile that argument with the express directions of subsection 3 of section 23, Merchant Shipping Act Amendment Act, 1862.
When the Board of Trade had to exercise their power they could not cancel or suspend until after the court bad reported a ship's officer to have been guilty of incom- petency or misconduct, or of wrongful act or default, but under the third subsection the decision must be given "at the conclusion of the case, or as soon afterwards as
o 10278-696. 25.-8 5.