Opening statement. Examination of witnesses. Defence. formally admitted or proved. If the person charged has failed to attend after the statutory notice has been duly served upon him, the Court may proceed to hear and adjudicate upon the case in his absence. The Solicitor then opens the case by stating the facts as gathered from the statements of the witnesses, taking care that in doing so the person charged is, if present, made fully aware of the nature of the charges he will have to answer. If he does not appear to the summons, knowing the time. and place of the Inquiry, and that a charge is to be made against him, he cannot complain that he has not had full opportunity of making a defence. The Solicitor then calls and examines on oath administered by the Court (a) the several witnesses who speak to the charges and the conduct of the defendant("). After cross-examination of the prosecutor's witnesses by the person charged or his Solicitor (the defendant having liberty to make his defence either in person or otherwise) () and after the witnesses have been reexamined by the Solicitor who appears for the Board of Trade, and examined by the Court, the person charged calls his own witnesses (4), who may be (") Wilful and corrupt false swearing before a Local Marine Board lawfully constituted upon a matter material to an Inquiry then being lawfully investigated by them in pursuance of the statute, is perjury, and indictable as such. Such a tribunal is invested with judicial powers and enabled to inquire on oath, and pass a sentence affecting the status of the person accused, who is entitled to have protection against witnesses who come to swear falsely. Reg. v. Tomlinson, L.R. 1 C.C. 49. (b) The principles of evidence enumerated by Lord Loughborough in reference to Courts Martial in Grant v. Gould, 2 H. Bl. 69, will apply to Local Marine Board Investigations. "The principles of the law of England must be their guide, but they are not bound to adopt all the refined distinctions that have been established and adopted in Courts of Common Law." Thring's "Criminal Law of the Navy," 2nd Ed., page 320. (c) 17 & 18 Vict., c. 104, s. 241. This means that he may do so either in person or by his legal adviser, and those who conduct such an Inquiry should give the party charged every opportunity of having his attorney and counsel, and witnesses present. Per Mr. Justice Crampton, Reg. v. Collingridge, 34 L.J. Q.B. 9. (4) The Local Marine Board has the same power of summoning witnesses as an Inspector has under section 15, Merchant Shipping Act, 1854. The statute gives a discretion to bodies such as a "Local Marine Board," where all the expense of the witnesses is to be thrown upon the public, and they should prevent a witness being vexatiously summoned by a party. It is a proper cause for such a Court before granting the summonses for the examined, cross-examined and re-examined in a similar manner. The Solicitor who represents the Board of Trade can then if necessary, with the permission of the Court, call further witnesses. If the defendant has not already given evidence, he is next allowed an opportunity of offering any explanation he may wish to make, and his explanatory statement may either be verbal, or in writing. The Solicitor who appears for the defendant, whether or not the defendant has been examined, or has made any explanatory statement, is allowed to address the Court on his client's behalf, and the Solicitor who represents the Board of Trade has a right to sum up the evidence and reply upon the whole case. When all the evidence has been taken, and the respective Solicitors have delivered their addresses, the Court at the conclusion of the case, or as soon afterwards as possible, states in open Court the decision to which they may have come with respect to cancelling or suspending the defendant's certificate ("). Reply. Decision of Court. Delivery of Should the Court decide to cancel or suspend the certificate. defendant's certificate, they demand its delivery to them (b). Order as to The Court may also make such order with respect to costs. the costs () of the Investigation as they may deem just (d). The proceedings then terminate, and the Court afterwards sends a full report upon the case, with the evidence, to the Board of Trade, and they also, if they determine to cancel or suspend any certificate, forward such certificate to the Board of Trade with their report (®). As soon as the proceedings have terminated, the local Solicitor notifies the fact to the Superintendent of Mercantile Marine at the port, in order that he may pay off and discharge the witnesses. defence, to inquire who the witnesses are, and what they are expected to prove; and to refuse the summons in respect of any witness who can only speak to matter clearly irrelevant. Reg. v. Collingridge, 34 L.J. Q.B. 9. (*) 25 & 26 Vict., c. 63, s. 23, sub-sec. 3, see ante, page 60. (b) 25 & 26 Vict., c. 63, s. 24, as amended by 42 & 43 Vict., c. 72, s. 3, sub-sec. 4, see ante, pages 61 and 65. (c) See ante, page 139, as to recovery of such costs. (d) 17 & 18 Vict., c. 104, s. 241, see ante, page 130. This power is seldom exercised owing to the absence of any summary means of recovery. See ante, page 139. (e) 25 & 26 Vict., c. 63 s. 23, sub-sec. 3, see ante, page 60. Certiorari or lie in certain Procedure in Investigations before Magistrates. The Board of Trade, if they think the justice of the case require it, may re-issue and return any certificate which has been cancelled or suspended, or shorten the time for which it is suspended, or grant a new certificate of the same or any lower grade in place of any certificate which has been cancelled or suspended (*), The Court of Queen's Bench has asserted its authority to grant a Certiorari in cases where a Local Marine Board has exceeded its jurisdiction, and to grant a Mandamus to hear a case where no proper hearing has taken place ("). With respect to Investigations of the third and fourth classes before-mentioned, before two Justices or a Stipendiary Magistrate, conducted under the latter portion of section 241 of the Merchant Shipping Act, 1854, a procedure rarely if ever resorted to (), that section provides that it 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 under the provisions contained in the Eighth Part of the Act ("). The effect of this provision has already been discussed, and in the Chapter () on the procedure at Formal Investigations the practice in such cases is fully dealt with. (a) See ante, page 60. (b) Reg. v. Collingridge, 34 L.J. Q.B. 9. (c) See ante, page 137. (d) 17 & 18 Vict., c. 104, s. 241. (e) See Chapter V., page 102. CHAPTER VIII. INVESTIGATIONS IN BRITISH POSSESSIONS ABROAD The power of holding in British Colonies Investigations into shipping casualties, and into the conduct of certificated officers of ships, depends, so far as the subject of this chapter is concerned, in part upon Imperial legislation, and in part upon Colonial Acts or Ordinances in force in the particular Colony in which the Investigation is held. With any purely Colonial enactments relating to such Investigations it is not proposed to deal; they are necessarily very numerous, of a varied character, and possess an interest chiefly confined to the particular Colony wherein they have been enacted ("). The Legislative power in a Colony depends tution. upon its Consti The power possessed by Colonial legislative authorities, using the term in its widest sense, with respect to legislation, depends in every case upon the constitution of the Colony. A discussion of these powers, the sources whence they are derived, and the methods by which they are conferred, would be out of place in this work. As a general rule it may be stated that, unlike the Imperial Legislature in this respect, the Colonial authorities have limited powers of legislation, confined in general to their persons and own territorial limits, and only over persons and property therein. The Imperial legislation relating to the subject under discussion is the following: * "The Board of Trade (") may suspend or cancel the certificate (whether of competency or service) of any master or mate ** if upon any Investigation made by any Court or tribunal authorised or hereafter to be authorised by the legislative authority in (*) In the Appendix page 411 et seq. are printed the Acts and Ordinances of the Colonies relating to Shipping Investigations. (b) The Court or Tribunal by which the case is investigated or tried has been substituted for the Board of Trade by 25 & 26 Vict., c. 63. See post, page 151. Limited to territorial limits of Colony, and property therein Imperial legislation. 17 & 18 Vict., Suspension or certificates. 17 & 18 Vict., c. 104, s. 242. 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 every master or mate whose certificate is cancelled or suspended shall deliver it to the Board of Trade, or as it directs, and in default shall for each offence incur a penalty not exceeding fifty pounds; and the Board of Trade may at any subsequent time grant to any person whose certificate has been cancelled a new certificate of the same or of any lower grade." "If **** the respective legislative authorities Act, as applied in any British possession abroad, by any Acts, by Colonial Ordinances, or other appropriate legal means, apply their own ships, or adapt any of the provisions in the third part (6) of this Act contained to any British ships registered at, trading with, or being at any place within their respective jurisdictions, and to the owners, masters, mates, and crews thereof, such provisions, when so applied and adapted as aforesaid, and as long as they remain in force, shall in respect of the ships and persons to which the same are applied be enforced, and penalties and punishments for the breach thereof shall be recovered and inflicted, throughout Her Majesty's dominions, in the same manner as if such provisions had been hereby so adapted and applied, and such penalties and punishments had been hereby expressly imposed." Sec. 288. Provisions of Governments to may be enforced throughout the Empire. Sec. 289. East Indian and Colonial Acts to be sub "Every Act, Ordinance, or other form of law to be passed or promulgated by the Governor General ject to disallow of India in Council, or by any other legislative authority, in pursuance of this Act, shall respectively be subject to the same right of disallowance or repeal, and require the same sanction or other acts and formalities, and be subject to the same conditions in all ance, and require sanction as in other cases. () The words here left out, requiring the confirmation of the Report by the Governor of the British Possession, were repealed as from the date of the passing of the Merchant Shipping Act Amendment Act, 1862, by 45 & 46 Vict., c. 76, s. 7. (b) This part relates to masters and seamen, their discipline and conduct. |