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PUBLIC RECORD OFFICE
Reference :-
C.O. 885
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PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
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APPENDIX II.
As to granting Orders in Council under section 444, Merchant Shipping Act, 1894, with respect to Load-lines on Ships registered in British Possessions.
MEMORANDUM.
The request of the South Australian Government gives rise to considerable difficulty. They apply for an Order in Council under section 444 of the Merchant Shipping Act, 1894, declaring that any load-line fixed, marked, or certified in pursuance of the Marine Board Navigation Act Amendment Act, 1894, of South Australia, shall, with respect to ships registered in that possession, have the same effect as though they had been fixed, marked, or given in pursuance of the Imperial Act.
The Order in Council may and ought to be granted "if it appears to Her Majesty "that the colonial enactment is based on the same principles as the provisions of "Part V. of the Merchant Shipping Act, 1894, relating to load-lines, and is equally "effective for ascertaining and determining the maximum load lines to which those "ships (ie., those registered in that possession) can be safely loaded in salt water."
The South Australian Act is to a large extent on all fours with the Imperial Act, but differs from it in one important particular, namely, that whereas the latter empowers the Board of Trade to modify the load-line tables and the application thereof, that power is by the South Australian Act vested in the Marine Board of the Colony. The whole of the Imperial enactments are based upon the load-line tables approved by the Board of Trade in 1885. These tables were settled with enormous difficulty and after prolonged discussion by an expert committee appointed by Mr. Chamberlain; the whole subject is highly technical, and was described by the committee themselves as one" of extreme complexity and also one which bad come to be regarded with much Even when the tables were compiled, five years elapsed before diversity of view." they received any statutory force. During this period great experience had been gained by the Board of Trade and by Lloyd's in their application to ships, and an explanatory memorandum had, after much consideration by another small committee, been appended to them. The modification of a work of so much difficulty can only be safely entrusted to an authority having command of the services of men of equal eminence with the original framers of the tables, and accordingly in the Imperial Act the Board of Trade was designated as that authority. The efficiency and purpose of the tables might easily be impaired if a different authority were empowered to modify
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them.
An Order in Council is, nevertheless, desired declaring that a load-line fixed under the South Australian Act in accordance with tables capable of being legally modified by the Marine Board of that province shall have the same effect as if it had been fixed under the Imperial Act in accordance with the original tables subject to modification only by the Board of Trade. This is, therefore, a matter requiring serious consideration even in the case of a single colony; but if such an Order be made in the case of South Australia, it would be difficult to refuse it to any other colonial government. The result might be that the original load-line tables, the fruit of so much knowledge and skill, would be, so to speak, at the mercy of numerous different authorities, each of whom might in perfect good faith establish a different standard of loading with respect to vessels registered within their territory and possibly destroy or lessen the safeguards against overloading which are the purpose of the Imperial enactments. If these modifications affected only South Australian vessels trading within the limits of the colony, the responsibility of securing their safety might, of course, be left to the local Legislature, and it is not for a moment to be supposed that the South Australian Government would consciously diminish that security; but the modifications of the Marine Board will have a much wider operation, and in considering the effect of the
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South Australian Act it is impossible to avoid the contemplation of what might be legally done under its existing provisions. Supposing, for instance, the desired Order in Council to be made and a ship, registered in South Australia with her load-line fixed there, should trade at Antwerp, and there, perhaps unexpectedly, be ordered to Liverpool to load cargo for the homeward voyage. If by any modification of the tables by the Marine Board the vessel were allowed to load more deeply than British ships sailing from the United Kingdom, she would unfairly compete with them in our own home ports.
That which might happen unintentionally might also conceivably be done by South Australian shipowners designedly, or shipowners here might become possessed, by purchase or by transfer of registry, of ships registered in South Australia and marked there, and then compete in the home ports with ships marked with the Imperial load- line.
It is true that the South Australian Act contains an express provision that their ships trading with cargo to the continent of Europe or the United Kingdom, or to North America, shall not have less freeboard than the Imperial tables permit. But this is a mere declaratory enactment, very difficult, if not impossible, to enforce, even in South Australia, and of no avail in the United Kingdom, in the face of Order in Council declaring, by virtue of the Imperial Act itself, that the load-line as fixed in South Australia shall have the same effect as if fixed under the provisions of that Act. Such a vessel, though overloaded according to the Imperial standard, could not be detained here, nor could her master be prosecuted. Cases of this kind are possible under the South Australian Act as it now stands.
In dealing with the legal question whether the South Australian enactments providing for fixing, marking and certifying load-lines are based on the same principles as the Imperial Act, and are equally effective in securing the safety of human life, the above considerations seem permissible as tending to throw light upon the intention of the Legislature in passing the Imperial Act, and confining the modifications of the tables to such as should be made by the Board of Trade.
It is not easy to determine whether, as a matter of law, the enactments for fixing load-lines with respect to ships registered in South Australia are based upon the same principles as the Imperial provisions. It is not provided by section 444 that the Colonial enactment is to be identical with the Imperial provisions, but that it is to be based upon the same principles, and it might be argued that this language implies a certain latitude of adaptation to local circumstances and requirements. But if the Colonial enactment, as in the present case, is based upon the Imperial load-line tables, it would also seem to be logically necessary that it should be based upon the modifications of those tables made by the same authority. The enactment, however, ignores these modifications altogether, and is based upon the tables as modified by the Marine Board. It is therefore conceivable in theory, though, of course, highly improbable, that the modifications might radically alter the tables, and consequently the basis of the Imperial provisions. With this possibility in view, it can hardly be said that the fundamental principles are the same. This consideration becomes much stronger when it is remembered that all the other provinces in Australia, and possibly all other Colonies, will claim for their respective authorities the power to modify the tables if that power be conceded to South Australia.
It is clear that, if the power be vested in any other authority than that designated in the Imperial Act, the whole principle of that Act becomes endangered, and if that be so, it cannot be maintained that the South Australian Act is "based upon the same principles." The power of modification of the tables is so important a feature in load- line legislation that the question who is to exercise that power becomes in reality a matter of principle.
But, in order to satisfy the conditions imposed by section 444 of the Imperial Act upon the granting of an Order in Council, the Colonial enactment must not only be based upon the same principles as that Act, but must also be equally effective for ascertaining and determining the maximum safe load-lines. The whole effectiveness of the enactment depends upon the tables, and therefore upon the exercise of the powers of modification by the Marine Board. The manner in which they may think fit to exercise it is an unknown and future contingency. Can the Board of Trade advise Her Majesty in these circumstances that the South Australian Act is equally effective with an Act which vests the power to modify the tables in an Imperial authority? The tables may not be impaired by Colonial modifications, but the fact that the converse is possible seems to preclude a present judgment that the Colonial enactment is 'equally effective." That would amount to a definite decision upon a basis indefinite
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