CO129-135 - Public Offices & Others - 1868 — Page 221

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present state, where seamen appear to be in excess, and where the and pro-

object of captains is to get rid of them, but the posals for amendment.

cases of Quebec, Sydney, &c., where seamen are deficient, and the temptation is with the men to desert; and also such cases as Callao, where an artificial scarcity of men is created by the villanies of crimps. A remedy which is good in one of these cases may do harm in another.

Necessity of rules which will not re- strict free- dom of em- ployment.

At the same time we

must attach proper inci- dents to the

contract.

Our old law was founded on the notion that voyages begin and end at home; that ships and seamen belong to this country; and that a ship which takes a seaman out ought to bring him back. This too, as is evident from Major Malleson's Report, is the theory of the United States law, which requires that when a man is left behind abroad the ship shall pay him three months wages over and above wages earned, in order to find him a passage home. This may do for United States Ships, which are always trading to other quarters of the globe; but it would be too Procrustean for us. The same principles are adopted, not only in theory but in practice, by the French. But the French marine and French trade are very limited, and their ships are still. under a strict system of navigation laws, navigated by Frenchmen. It would be impracticable for us to act on this theory now. Our shipping is becoming more and more cosmopolitan; it is difficult to say where it is at home; it is manned by seamen of all nations. Voyages are more and more seeking voyages; the destination of a ship is not to a given place and back to the United Kingdom, but, as often expressed in the articles, "to some port in North or "South America, and thence to any port or ports "in the Atlantic or Pacific Oceans, and back to "Europe, the voyage not to exceed two years," or in some equally vague form. Often, too, ships are sold abroad. Often their destination is changed by telegraph according to markets. Often the ship is sent to be employed abroad. Our seamen too some- times find employment under their own flag, some. times under the American flag, or under other foreign flags. It would be inexpedient and impos- sible to check this free employment of capital and labour by any such close system as existed before the repeal of our own protection laws, and as still exists in France. We must rather look to increased freedom of employment; and if there are clauses and expressions in our laws which tend to prevent seamen and shipowners from contracting for any lawful service, our endeavour should be to get rid of them.

But at the same time we should see that the spirit of the contract is rigidly observed; that all proper incidents are attached to it; that it shall not be so enforced as to cause injustice to the weaker party, or so as to throw an unjust burden on third parties. Now it seems that according to the spirit of our old law and of the laws, so far as I am aware, of all mari- time countries, it is the duty of the ship which takes a seaman away from home to restore him to it. And

this obligation is a reasonable one in principle. Even if it were right to allow a seaman to make a contract under which he might be left starving in a foreign

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country, which is very doubtful, it is not right to allow the burden of maintaining him to be thrown either on the foreign country or on his own Govern- ment. Parliament has, therefore, a perfect right to require that the ship shall in some shape or other provide for the seamen it employs. The difficulty is in applying this principle to the present state of things.

Our law is to be found in ss. 205 to 213, and Present s. 190, of Merchant Shipping Act, 1854, and ss. 19 enactments. and 22. of Merchant Shipping Act Amendment Act, 1862. And the instructions of the Board of Trade under these enactments will be found at paragraphs 45. to 89. of instructions to consuls, and according circulars. Similar instructions have been sent to the eolonies.

The clauses in the Merchant Shipping Act were taken from the old Acts before the Board of Trade had taken the business over from the Admiralty or knew anything about it. We have always been aware that they are very clumsily drawn and doubt- ful in effect, but we have put the best construction we can on them, and have hitherto got on pretty well. Now, however, the most important clause has broken down on being brought into court at Calcutta; and though (as mentioned more parti- cularly below) this is perhaps due to mismanage ment, yet it forces us to consider the propriety

of amending this Act. It will be seen that this Distinction Act makes a distinction between seamen left in between foreign countries and seamen left in Her Majesty's reign and

Colonial Dominions. In both cases (s. 207.) a certificate Ports, or sanction must be obtained from some public officer; in the former case, s. 205., express provision is made for payment of wages, and in addition of the expense of sending the man home. In the latter case, there is, as in the former, provision for payment of the wages where the man is left behind from illness; but there is no further express provision for any payment by the ship. There is, however, a further enactment, s. 213, to the effect that where a seaman is discharged without compliance with the provisions of the Act the ship shall be liable for all expenses. As the sanction of the cousul or shipping master is one of the conditions required by the Act (s. 207.), we have instructed the shipping officers that the sanction is to be withheld in cases where it appears that the man left behind will become a charge on the public. The Judge at Calcutta has Decision at beld, whether rightly or wrongly, that the shipping Calcutta. master there has no discretion in the matter, and is bound to give his sanction if master and seaman consent. Consequently, if this is right, neither the local authorities nor the Board of Trade have any longer any control over the discharges of seamen in Indian or Colonial Ports, and we must see how the law can be amended.

There is, as stated above, no difficulty in the principle that a ship which takes a man from home is bound to see him home again, or provide hini with employment. The difficulty is in the application. Proposed First of all, I think, we may at once throw over the amendments. distinction between foreign and colonial ports which To do away the present Act contains. It probably arose at a tion between

with distine-

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