The absence of agitation in this respect was, however, by no means due to a feeling of satisfaction with the Courts of Formal Investigation. On the contrary, they were frequently assailed, but the efforts of their opponents were directed rather to their complete overthrow, or to a radical alteration in their constitution and procedure, than to obtaining the privilege of an appeal from their decisions. of The Board of Trade, though deprived of its original power of cancellation or suspension, was thus in effect often a Court of review in respect punishment, but the power was only sparingly exercised. It was clear that the Court which had tried the case, and had seen the witnesses, had the best means of forming a correct judgment, and except to redress manifest injustice, or to grant certificates of a lower grade, the decisions of the Courts should not have been, and were not in fact, disturbed by the Board of Trade. The Board of effect a Court of Trade was in review. Control of the superior Courts The Superior Courts could, and sometimes did, exercise control over Courts of Inquiry or Investiga- of Law. tion. The remarks of Mr. Theodore Thring on the powers of the Courts of Law over Naval Courts Martial are applicable to Courts of Formal Investigation. He says ("):-"The jurisdiction of Naval Courts Martial and the judicial powers of Commanding Officers are confined within certain limits by positive enactment; if they pass these limits, they are subject to the controlling authority of the Courts of Westminster Hall; an authority which is exercised over all inferior Courts, where they take cognizance of any matter not within their jurisdiction, or where in handling matters clearly within their cognizance they transgress the bounds prescribed to them by the laws of England." (3 Bl. III., per Lord Loughborough in Grant v. Gould, 2 H. Bl. 100.) Resort has accordingly been had to the Court decisions of the Courts of Formal Investigation. Upon the question of the Court best fitted to hear such appeals, he suggested the Court of Admiralty, as being almost constantly sitting, and cases were brought there and disposed of very rapidly, at a comparatively moderate expense. (Report and Evidence of Royal Commission on Unseaworthy Ships, vol. II., 1874, pp. 327-8). The late Mr. J. O'Dowd also advocated an appeal to the Probate, Divorce and Admiralty Division of the High Court, Ibid, page 147. (*) Thring's Crim. Law of the Navy, 2nd Ed., page 289. Motion for Certiorari. of Queen's Bench upon questions of the kind above described, and that Court has exercised its authority over decisions as well of the Wreck Commissioner, as of Justices and Stipendiary Magistrates. In the case of ex parte Ferguson (") the jurisdiction of two Justices to suspend a certificate was called in question on various grounds. The proceedings took the form of a motion for a Certiorari to bring up the order of the Justices suspending the certificate, but the application was refused by the Court of Queen's Writ of Prohi Bench. In ex parte Minto a Writ of Prohibition to the Stipendiary Magistrate was moved for in the Queen's Bench Division and refused on the merits. A second application, arising out of the same Formal Investigation, for a Certiorari on fresh grounds to bring up the Magistrate's order suspending the master's certificate for three months, was successful, and the order was accordingly quashed ("). bition. No mode of appeal or of obtaining a rehearing upon the facts. The result of these cases is to establish beyond doubt the authority of the Superior Courts over the Courts of Formal Investigation when they either exceed their statutory powers or act without jurisdiction. Re-hearing. It will be noticed that the proceedings above described are confined to applications on technical grounds, and do not supply a means of obtaining a re-hearing of a case, or constitute an appeal upon the merits. So recently as the year 1878, the late Lord Chief Justice Cockburn remarked upon the absence of any power to order such a re-hearing (©). This defect in the procedure of a Formal Investigation has now been remedied. Strong representations having been made to Lord Sandon, when President of the Board of Trade, of the injustice suffered by shipmasters and shipowners for want of an appeal upon the facts, an Act was passed, at his instance, in the session of 1879, by which re-hearings and in certain cases appeals were authorized. (*) Referred to ante, pages 72, 75 and 86. This (b) Ex parte Minto, 35 L.T. N.S. 808; Sol. J., xxi., 274; 25 W.R. 251, see ante, page 123. (c) The remark was made in the course of the argument in the above-mentioned case of ex parte Minto. is the Shipping Casualties Investigations Act, 1879, which contains the following enactments on this subject: (1.) Where an Investigation into the conduct of a master, mate, or engineer, or into a shipping casualty, has been held under the Merchant Shipping Act, 1854 ("), or any Act amending the same, or under any provision for holding such Investigations in a British possession, the Board of Trade may, in any case, and shall, if new and important evidence which could not be produced at the Investigation has been discovered, or if for any other reason there has in their opinion been ground for suspecting a miscarriage of justice, order that the case be re-heard, either generally or as to any part thereof, and either by the court or authority by whom it was heard in the first instance, or by the Wreck Commissioner, or in England or Ireland by a Judge of Her Majesty's High Court of Justice exercising jurisdiction in Admiralty cases, or in Scotland. by the Senior Lord Ordinary, or any other Judge in the Court of Session whom the Lord President of that Court may appoint for the purpose, and the case shall be so re-heard accordingly. "(2.) Where, in any such Investigation, a decision has been given with respect to the cancelling or suspension of the certificate of a master, mate, or engineer, and an application for a re-hearing under this section has not been made or has been refused, an appeal shall lie from the decision to the following Courts; namely, "(a) If the decision is given in England, or by a Admiralty Division of Her Majesty's High "(b) If the decision is given in Scotland, either "(c.) If the decision is given in Ireland, the High Court of Admiralty, or the Judge or Division of Her Majesty's High Court of Justice exercising jurisdiction in Admiralty cases. (a) 17 & 18 Vict., c. 104. 42 & 43 Vict., c. 72, sec. 2. Re-hearing. Appeal (b). 42 & 43 Vict., c. 72, sec. 2. Re-hearing. Order to rehear an Investigation. Imperative in certain cases. (3.) Any re-hearing or appeal under this section shall be subject to and conducted in accordance with such conditions and regulations as may from time to time be prescribed by General Rules (2) made under section 30 of the Merchant Shipping Act, 1876 (").” The language of the above section is wide. enough to include rehearings in the case of all 1. Formal Investigations into a shipping casualty in the United Kingdom by a Wreck Commissioner, Justices, or Stipendiary Magistrate: 2. Inquiries into the conduct or competency of a certificated officer by a Local Marine Board, or a tribunal specially appointed by the Board of Trade under section 241 of the Merchant Shipping Act, 1854: 3. Investigations into the conduct or competency of a certificated officer, or into a shipping casualty under the provisions for holding such Investigations in a British possession: 4. Inquiries or Investigations by a Naval Court abroad: 5. Inquiries under the 432nd and 448th sections of the Merchant Shipping Act, 1854. The Board of Trade may in their discretion order a re-hearing in any case. When new and important evidence which could not be produced at the Investigation has been discovered, or when for any other reason there is in their opinion ground for suspecting a miscarriage of justice, the Board has no discretion but must order a re-hearing. The order may be to re-hear the whole matter either generally, or only as to part. By the Merchant Shipping (Colonial Inquiries) Act, 1882 (), re-hearings are authorized in every case in which by that Act jurisdiction is conferred, or capable of being conferred, on Colonial Courts or tribunals. But, as no authority has been designated with whom the power of ordering re-hearings is to rest, the provision will probably be a dead letter, and (a) See Additional Rules (Appeals and Re-hearings), 1880, post, page 204. (b) 39 & 40 Vict., c. 80, s. 30. See ante, page 62. the re-hearing of Colonial Investigations will be governed by the Shipping Casualties Investigations Act, 1879. The re-hearing need not be by the tribunal that heard the matter in the first instance, but may be according to the Board's direction in all the above cases either by The Court or authority by whom it was heard The Wreck Commissioner, or In Scotland, the Senior Lord Ordinary, or any These powers of re-hearing are very extensive, and will cover all cases in which dissatisfaction is felt with the original Inquiry. An account of cases which have been re-heard will be found at page 189. Appeal. Tribunal of re-hearing. In England or Ireland. In Scotland. An appeal in all cases lies to a The enactments relating to Appeals are printed at page 183, and it will be observed that the appeal is to Superior Court. a Superior Court. From a decision given in England or by a Naval Court it lies to the Probate, Divorce and Admiralty Division of the High Court of Justice. From a decision pronounced in Scotland the appeal is to either Division of the Court of Session, and from a decision in Ireland to the High Court of Admiralty or the Judge of a Division of the High Court of Justice exercising Admiralty jurisdiction. The form in which the latter provision was inserted. in the Act, arose from the fact that the Irish Supreme Court of Judicature Act, 1877, had passed, but the provision in question had not, at the passing of the Shipping Casualties Investigations Act, 1879, been actually carried into effect. No jurisdiction is given by the Act to the above Courts to entertain an appeal from a Court or tribunal established under the legislative authority of a British possession. From the finding of such a Court or tribunal there would therefore be no Appeal from Colonial Courts. |