CHAPTER IV. JURISDICTION AND POWERS OF COURTS OF FORMAL The jurisdiction of the Courts of Formal Investigation was some time since declared by Lord Blackburn (then Mr. Justice Blackburn) and Mr. Justice Mellor respectively to be "involved in a complicated number of sections," and was to be sought for in a "multitude of references some of them very special" ("). The apparent entanglement has since become considerably greater in consequence of the passing of the Merchant Shipping Act, 1876, and the Shipping Casualties Investigations Act, 1879. For the sake of clearness it will be convenient to discuss the provisions which govern the jurisdiction of Formal Investigations apart from the practice itself; the former will be the subject of this chapter, the latter will be examined in a subsequent part of the book, but in dealing with so general a subject as Jurisdiction it will be impossible to avoid a reference to much that must be inquired into elsewhere in greater detail. The jurisdiction of the Courts has undergone from time to time changes in matter of detail, some of these alterations being as we have seen of great practical importance. The main outlines are, however, still such as they were under the Merchant Shipping Act of 1854. The Statutory Provisions now in force upon which the jurisdiction depends are the following: "The Board of Trade () may suspend or cancel the certificate (whether of competency or service) of (b) Ex parte Ferguson, 6 Q.B. 280. (c) 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, s. 23, sub-sec. 1. See post, page 60. any master or mate in the following cases: (that is to say), 66 If upon any Investigation conducted under the provisions contained in the eighth part of this Act, or upon any Investigation made by a Naval Court constituted as hereinafter mentioned, it is reported 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." 17 & 18 Vict., c. 104, sec. 242. sub-sec. 2. Board of cancel or sus Sec. 432. "In any of the cases following: (that is to say), "Whenever any ship is lost, abandoned, or be instituted materially damaged on or near the coasts of the United Kingdom; "Whenever any ship causes loss or material damage to any other ship on or near such coasts; "Whenever by reason of any casualty happening to or on board of any ship on or near such coasts loss of life ensues ; "Whenever any such loss, abandonment, damage, or casualty happens elsewhere, and any competent witnesses thereof arrive or are found at any place in the United Kingdom, "It shall be lawful for the Inspecting Officer of the Coast Guard or the principal Officer of Customs residing at or near the place where such loss, abandonment, damage, or casualty occurred, if the same occurred on or near the coasts of the United Kingdom, but if elsewhere, at or near the place where such witnesses as aforesaid arrive or are found, or can be conveniently examined, or for any other person appointed for the purpose by the Board of Trade, to to make Inquiry respecting such loss, abandonment, damage, or casualty; and he shall for that purpose have all the powers given by the first part of this Act to Inspectors appointed by the said Board." in cases of wreck and casualty. Sec. 433. "If it appears to such officer or person as aforesaid, either upon or without any such preliminary Inquiry tigation before 17 & 18 Vict., c. 104, sec. 433. Sec. 435. Stipendiary Magistrate to be the Magistrate who is member of Local Marine Board, and to be paid. Sec. 436. Investigations. as aforesaid, that a formal investigation is requisite or expedient, or if the Board of Trade so directs, he shall apply to any two Justices or to a Stipendiary Magistrate to hear the case; and such Justices or Magistrate shall thereupon proceed to hear and try the same, and shall for that purpose, so far as relates to the summoning of parties, compelling the attendance of witnesses, and the regulation of the proceedings, have the same powers as if the same were a proceeding relating to an offence or cause of complaint upon which they or he have power to make a summary conviction or order, or as near thereto as circumstances permit; and it shall be the duty of such officer or person as aforesaid to superintend the management of the case, and to render such assistance to the said Justices or Magistrate as is in his power; and, upon the conclusion of the case, the said Justices or Magistrate shall send a report to the Board of Trade, containing a full statement of the case and of their or his opinion thereon, accompanied by such report of or extracts from the evidence, and such observations (if any) as they or he may think fit.” "In places where there is a Local Marine Board, and where a Stipendiary Magistrate is a member of such Board, all such Investigations as aforesaid shall, whenever he happens to be present, be made before such Magistrate; and there shall be paid to such Magistrate in respect of his services under this Act such remuneration, whether by way of annual increase of salary or otherwise, as Her Majesty's Secretary of State for the Home Department, with the consent of the Board of Trade, may direct; and such remuneration shall be paid out of the Mercantile Marine Fund." "The said Justices or Magistrate may make such Costs of such order with respect to the costs of any such investigation or any portion thereof as they or he may deem just, and such costs shall be paid accordingly, and shall be recoverable in the same manner as other costs incurred in summary proceedings before them or him; and the Board of Trade may, if in any case it thinks fit so to do, pay the expense of any such Investigation, and may pay to such Assessor as aforesaid such remuneration as it thinks fit." "In the case of any such Investigation as aforesaid to be held in Scotland, the Board of Trade may, if it so thinks fit, remit the same to the Lord Advocate to be prosecuted in such manner as he may direct (").” "Such Justices or Magistrate as aforesaid may, or in Scotland such person or persons as is or are directed by the Lord Advocate to conduct the Investigation may, if they or he think fit, require any master or mate possessing a certificate of competency or service whose conduct is called in question, or appears to them or him likely to be called in question in the course of such Investigation, to deliver such certificate to them or him ("), and they or he shall hold the certificate so delivered until the conclusion of the Investigation, and shall then either return the same to such master or mate, or, if their report is such as to enable the Board of Trade (c) to cancel or suspend such certificate under the powers given to such Board by the third part of this Act, shall forward the same to the Board of Trade to be dealt with as such Board thinks fit; and if any Master or Mate fails so to deliver his certificate when so required, he shall incur a penalty not exceeding fifty pounds." 66 17 & 18 Vict., c. 104, sec. 437. Investigations in Scotland. Sec. 438. Master or mate may be required to deliver cer tificate to be held until close of Inquiry. Sec. 501. in Scotland. All matters and things that may in pursuance of the eighth part of this Act be done by or to any to certain terms Justice, or any two Justices, may in Scotland be done also by or to the Sheriff of the county, including the Sheriff substitute." Sec. 519. "Any Stipendiary Magistrate shall have full power to do alone whatever two Justices of the Peace are Magistrate, by this Act authorised to do." power of. Sec. 521. Jurisdiction over ships lying "In all cases where any disaster within which any Court or Justice of the Peace or other Magistrate off the coasts. has jurisdiction, either under this Act or under any other Act or at common law, for any purpose whatever, is situate on the coast or any sea, or abutting on or projecting into any bay, channel, lake, river, or other navigable water, every such Court, Justice of the Peace, or Magistrate shall have juris (*) The remainder of this section has been repealed. Sec. 39 & 40 Vict., c. 80, s. 45. (b) Such delivery cannot now be required unless the certificate is suspended or cancelled. 42 & 43 Vict., c. 72, s. 3, sub-sec. 4. See post, page 65. (c) See 25 & 26 Vict., c. 63, s. 23, sub-sec. 1, page 60, and sec. 24, page 61. c. 104, sec. 521. 17 & 18 Vict., diction over any ship or boat being on or lying or passing off such coast, or being in or near such bay, channel, lake, river, or navigable water as aforesaid, and over all persons on board such ship or boat or for the time being belonging thereto, in the same manner as if such ship, boat, or persons were within the limits of the original jurisdiction of such Court, Justice, or Magistrate." 25 & 26 Vict., c. 63, sec. 23. Power of cancelling certificate to rest with the Court case. "The following Rules shall be observed with respect to the Cancellation and Suspension of Certificates, that is to say: "(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 which hears the shall (except in the case provided for by the fourth paragraph of the said section (a) ) 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: Sub-sec. 1. Sub-sec. 2. Sub-sec. 3. Sub-sec. 4. Sub-sec. 6. "(2.) Such Power shall extend to cancelling or suspending the certificates of engineers in the same manner as if certificated engineer' or 'certificated engineers 'were inserted throughout such section after 'master' or 'masters': "(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: "(4.) It shall be lawful for the Board of Trade, if they think the justice of the case require it, to 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: "(6.) ()No certificate shall be cancelled or suspended (") The excepted provision is as follows :-" If he is shown to have been convicted of any offence." (b) Sub-sec. 5 repealed by 39 & 40 Vict., c. 80, s. 45. |