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1905. NEW ZEALAND.
DESPATCHES FROM THE SECRETARY OF STATE FOR THE COLONIES RELATIVE TO "THE SHIPPING AND SEAMEN ACT, 1903."
Presented to both Houses of the General Assembly by Command of His Excellency.
(No. 21.) My Loud,— Downing Street, Bth March, 1905. In my telegram of the 6th instant, I informed you that I had decided to advise His Majesty to assent by Order in Council to the reserved Bill of the Parliament of New Zealand, shortly entitled " The Shipping and Seamen Act, 1903." 2. In connection with the Bill, I transmit to you herewith, to be laid before your Ministers, copies of a memorandum by the Solicitor to the Board of Trade dealing with the general principles on which, in his opinion, in the interests of both the Mother-country and the colonies, colonial legislation in regard to merchant shipping should be based, of a further memorandum by that officer giving a detailed criticism on the Bill, and of a memorandum by Messrs Hill, Dickenson and Co., which was received from the Shipowners' Parliamentary Committee. These papers will make clear to your Ministers the nature and extent of the difficulties with which His Majesty's Government have been confronted in considering the measure. 3. It is scarcely necessary to say that His Majesty's Government have no desire to interfere with the liberty of legislation enjoyed by colonial Parliaments in regard to their merchant shipping, but in considering the questions raised by the New Zealand Bill, and also by the Australian Navigation Bill now before a Koyal Commission, they have been led to feel that the larger questions involved should no longer be allowed to remain without an attempt at a more general solution than can be effected by one part of the Empire alone. The difficulties surrounding the question of the conditions which are to govern merchant shipping under the British flag cannot, in their opinion, be properly met by a continuance without modifications of the existing system, under which the several parts of the Empire may, and do, legislate with different results on many important matters in which uniformity is desirable. They think that the time has now come when the whole situation should be reconsidered in the light of the experience of the ten years since " The Merchant Shipping Act, 1891," was passed. 4. Your Ministers will see from the documents enclosed in this despatch that the difficulties of the present system fall under two heads : first, the legal and constitutional questions concerning the scope of the powers enjoyed by colonial Legislatures under " The Merchant Shipping Act, 1894 " ; and secondly, the practical inconveniences arising from divergent legislation by the Parliaments of the United Kingdom and the colonies. 5. The first of these subjects is considered in the memorandum of the Solicitor to the Board of Trade. It is sufficient for present purposes to point out that it appears from this memorandum that it is not altogether clear what are
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the powers of colonial Legislatures in regard to merchant shipping, and it will be obvious to your Ministers that any doubts on such an important question ought to be dispelled once for all, if necessary, by amendments in " The Merchant Shipping Act, 1894." 6. The practical inconveniences which may arise from divergent or opposed legislation in different parts of the Empire are indicated in the second memorandum of the Solicitor to the Board of Trade, and in the memorandum of Messrs Hill, Dickinson and Co. His Majesty's Government must not be taken to indorse all the criticism made in these documents, but it would appear from both memoranda that British ships trading between this country and New Zealand may conceivably comply with the requirements of the law here, but nevertheless find on arriving at colonial ports that the law to which they are there subject demands of them compliance with conditions differing in important respects. 7. I have already said that, in the opinion of His Majesty's Government, the time has come to reconsider the whole situation. It is impossible to discuss and settle by correspondence questions of the magnitude and complexity which such a reconsideration involves ; and they, therefore, propose that at as early a date as can be arranged a Conference, composed of representatives of the United Kingdom, Australia, and New Zealand, should meet here with the object of obtaining as much uniformity as is feasible in shipping legislation, and of removing ambiguities which lead, or are likely to lead, to litigation and confusion. 8. His Majesty's Government would be glad if your Ministers would take the matter into their early consideration, and inform me as soon as possible of their decision. If, as His Majesty's Government earnestly hope, it is decided to accept this proposal, they would suggest that your Government should select three or four representatives (including, if possible, representatives both of New Zealand shipowners and New Zealand seamen), and apprise me of the date which would be most convenient for them to come to England. 9. Your Government will understand that His Majesty's Government have no desire to withdraw from the consideration of colonial Parliaments such questions as those raised by the New Zealand Bill. But in considering the subject they have been forced to the conclusion that, if the merchant shipping of the Empire engaged in the oversea trade is to prosper in the future as it has done in the past, it must be governed by a code as nearly uniform throughout the Empire as the diversity of circumstances will allow, and that it is impossible in practice to work towards such a code unless the principles and the more important details can be definitely settled in concert by the Imperial and colonial Governments. Such a settlement, so far from impeding the labours of Parliaments and Governments in the colonies, will, in the opinion of His Majesty's Government, ultimately lighten them. It is as a first step: to the attainment of that object that His Majesty's Government now proposes a Conference with the representatives of Australasian shipping. They are confident that the proposal will meet with the consideration from your Ministers which is demanded by the vital importance of the subject to an Empire whose strength and greatness rest so largely upon its sea-borne commerce. 10. I have addressed a similar despatch to the Governor-General of Australia, and shall inform you of his reply in due course. I have, &c, ALFBED LYTTELTON. Governor the Bight Hon. Lord Plunket, K.C.V.0., &c.
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(MEMORANDUM BY SOLICITOR TO BOARD OF TRADE. New Zealand Shipping and Seamen's Act, 1903. The examination of the provisions of this Act has called for a great deal of critical work, which could not be adequately done during session-time, and I have consequently been compelled to devote some pare of my holiday to it. Before it was referred to me it had undergone the scrutiny of Messrs. Hill, Dickinson, and Co., who made very valuable criticisms upon it, and it at first appeared to me that the shortest course that I could take in the interests of perspicuity would be to embody in one document my criticisms with theirs, and indicate where I agreed, with or differed from them On further consideration, however, I came to the conclusion that it would be better to deal generally with the powers of colonies to legislate as regards merchant shipping, and then in the light of those observations point out where the New Zealand Act might be, or ought to be, amended. In adopting this course I had in mind the possibility of avoiding much labour in the future, for if the Colonial Office concur in what is stated herein, this memorandum may form the basis of a further and perhaps more exact one, which could be forwarded to the various colonial authorities as embodying the views of His Majesty's Government as to the scope of colonial Ordinances dealing with merchant shipping. It is essential, in dealing with colonial legislation on such subjects as this, to bear in mind that "The Merchant Shipping Act, 1894," is an Imperial Act, and that as regards the matters with which it deals the general powers of a colonial Legislature, so far as they ara expressly given, are to be found in sections 735 and 736 of that Act. From these two sections, and section 713, and subject to the remarks on special matters which I will note hereafter, it is clear that from a general point of view the Imperial Act does not contemplate that a colony shall, as regards the matters dealt with by the Act, do more than legislate (by way of specific repeal with an implied or recognised power of new enactment) for ships registered in its possession, or regulate its own coasting trade. As regards matters which are not dealt with by the Imperial Act (and there are cases for which the Act does not make provision by reason of the fact that certain of its provisions only operate on British vessels when in course of specific voyages, &c), it is a question whether it is not more the province of the Imperial Government than of a colony to legislate thereon, for the complications which may arise if a colony is given a free hand to supplement the provisions of the Imperial Act by legislation affecting British ships other than those registered in its own possession or engaged in its coasting trade might be very great. In any ease I opine that, supposing that a colony has power to legislate for such matters, such legislation would clearly be subject to the consent of His Majesty, and to due consideration of the rights of foreign States and our treaties with them, and the interests of our other colonies and the existing legislation therein. The question as to how far a colony can legislate on such subjects is, of course, more for the consideration of the Colonial Office than for the Board of Trade, as the experience of the Colonial Office in such matters must be more varied than that of our Department, but even assuming that such legislation is not beyond the powers of a colony, and is not " repugnant " within the meaning of " The Colonial Laws Validity Act, 1865," still it is quite clear that such legislation can only be given effect to after careful consideration of all the interests involved. It is, of course, not suggested that a colony cannot legislate for contracts entered into within her own jurisdiction, and consequently it may come about that British shipping may, by such means, be brought under obligations having a like effect as direct statutory obligations, but such legislation would take a different form to that which is under consideration, and would be subject to comment as regards its effect upon Imperial interests. It is also necessary to remember that certain provisions of the Imperial Act, e.g., the provisions as to emigrant ships, so far as they apply, cannot be altered by colonial legislation, because, as regards such of these matters as are dealt with in the Imperial Act, the powers of a colony (subject to some special provisions in Part 111. which are referred to later on), are restricted by section 735. In addition, however, to the provisions of sections 713, 735, and 736, there are to be taken into account various sections in the Imperial Act which either specifically recognise the powers of existing colonial Courts, or which confer powers on colonial Courts or officials to deal with specific matters, and it must be noted that the colonies are given special powers as regards the provisions of Parts 11. and VI. of the Imperial Act (see sections 264 and 478). For convenience I set out here the provisions of sections 713, 735, and 736. " 713. The Board of Trade shall be the Department to undertake the general superintendence of all matters relating to merchant shipping and seamen, and are authorised to carry into execution the provisions of this Act and of all Acts relating to merchant shipping and seamen for the time being in force, except where otherwise provided by those Acts, or except so far as those Acts relate to the revenue." " 735 (1.) The Legislature of any British possession may, by any Act or Ordinance confirmed by Her Majesty in Council, repeal, wholly or in part, any provisions of this Act (other than those of the third part thereof, which relate to emigrant ships) relating to ships registered in that possession, but any such Act or Ordinance shall not take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed by the Act or Ordinance for the purpose. " (2.) Where any Act or Ordinance of the Legislature of a British possession has repealed in whole or in part as respects that possession any provision of the Acts repealed by this Act, that Act or Ordinance shall have the same effect in relation to the corresponding provisions of this Act as it had in relation to the provision repealed by this Act."
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" 736. The Legislature of a British possession may, by any Act or Ordinance, regulate the coasting trade of that British possession, subject in every case to the following conditions :— " (a.) The Act or Ordinance shall contain a suspending clause providing that the Act or Ordinance shall not come into operation until Her Majesty's pleasure thereon has been publicly signified in the British possession in which it has been passed. " (b.) The Act or Ordinance shall treat all British ships (including the ships of any other British possession) in exactly the same manner as ships of the British possession in which it is made. " (c.) Where by treaty made before the passing of 'The Merchant Shipping (Colonial) Act, 1869,' that is to say, before the thirteenth day of May, eighteen hundred and sixtynine, Her Majesty has agreed to grant to any ships of any foreign State any rights or privileges in respect of the coasting trade of any British possession, those rights and privileges shall be enjoyed by those ships for so long as Her Majesty has already agreed or may hereafter agree to grant the same, anything in the Act or Ordinance to the contrary notwithstanding." And now to deal in sequence with the different parts of the Imperial Act. With regard to Part 1., this part (subject to the exemption from registry of certain small ships), is, by section 91, applied to the whole of His Majesty's dominions, and to all places where His Majesty has jurisdiction, and although technically a colony has, under the provision of section 735, power to repeal the provisions of Part 1., as regards ships registered in that possession, it is unlikely that His Majesty would be advised to confirm any Ordinance which purported to repeal this part of the Act. Under this part of the Act, however, certain powers are conferred on colonial authorities or Courts— e.g., section 4, (1), (e), sections 23, 28, 29, 30, 62, 73, 76 (subsection (4) of section 85 is an exempting one), 89, and 90, but these powers are for the more effectual carrying out of the provisions relating to the registry of British ships, and with the exception, perhaps, of section 59, the provisions of the whole Of Part I. are of Imperial application. With regard to Part 11., dealing with masters and seamen, sections 102, 124, 165, 172, 173, 188, 191, and 205 should be noted as indicating the powers of colonial Courts, authorities, or officials; section 261 specifies the provisions of that part which apply to colonial ships and to the owners, masters, and crews thereof; and section 264 empowers the Legislature of a British possession by law to apply or adapt to any British ships registered at, trading with, or being at any port in, that possession and to the owners, masters, and crews of those ships any provisions of Part 11. which do not otherwise so apply. This section confers wider powers on colonies as regards this particular subject matter of merchant shipping than can be found in any other part of the Act. Not only can they legislate for British ships registered at, but also for such ships when trading with or being at, any port in their possessions, and the owners, masters, and crews of such sbips, but the section is confined to the provisions of Part 11. Whether, again, this last section impliedly limits the powers of a colonial Legislature to exercising the powers conferred by the section may be a matter of some doubt, but the fact that such a power is specifically and in such terms given by the Imperial Act affords some ground for the view that it is a restricting rather than an enabling power, for if the power had not been so given the general power of a colony to legislate on the lines of such provisions of the Imperial Act that do not otherwise apply would conceivably, at all events as regards ships registered in that possession, exist. Section 265 should also be noted. There may, of course, be a question as to the exact meaning which is to be given to the words " apply or adapt," in section 264, and I myself incline rather to the view that the word " adapt " must be read in conjunction with the provisions of section 713, and the many other provisions that make the Board of Trade the administrative department in merchant shipping matters. As regards Part 111., this must be subdivided into : (1) Passenger-steamers; (2) emigrant ships. As regards passenger-steamers, it would appear that (subject to the provisions of section 284) in all cases where the provisions of the Imperial Act apply, and the colony wishes to alter such provisions, it is limited by the Imperial Act to its powers under section 735, and that as regards emigrant ships it has no powers outside the Imperial Act other than those specifically conferred upon it by the Imperial Act. (See sections 270, 332 to 334 inclusive, 355 to 358 inclusive, and 365 to 368 inclusive of the Imperial Act.) This being so it appears to me that as regards "passenger-steamers" no colonial Legislature should purport to impose upon the owners of British ships other than those registered in their own possession any statutory obligation or liability as to surveys, &c, where the owners of such ships have complied with the provisions of the Imperial Act or the duly sanctioned legislation of any other colony, and are possessed of valid certificates under such legislative authorities. As to Part IV., though section 372 is very wide, I do not think that it was intended that the colonies should be concerned with this part of the Act—see section 372 —and that if it be necessary for a colony to legislate for fishing vessels, such legislation being of a local character, would be held to be within their powers. As to Part V., the provisions relating to the prevention of collisions, reports of accidents and life-saving appliances, general equipment and signals of distress are. speaking generally, of Imperial force, though the penalties in some cases for breach of the provisions apply only in the cases of vessels leaving ports in the United Kingdom. The provisions as to draught of water are of general application, and also, with specified exceptions, those as to load-lines when British ships leave a port in the United Kingdom, and note sections 440, (5), 446, and 442, (1), (a). Section 444 provides that "where the Legislature of a British possession by any enactment legislates with regard to load-lines for ships registered in that possession, and it appears to His Majesty that that enactment is based on the same principles as those contained in Part V. of the
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Imperial Act His Majesty mav by Order in Council declare that such load-line, &c, shall, as regards ships so registered, have the same effect as if fixed, &c, in pursuance in Part V. of the Imperial Act." As to the provisions as to dangerous goods in sections 446 to 450, it might be contended that they are applicable only in the United Kingdom by reason of the reference to " The Explosives Act, 1875," but I think, on the whole, they may be regarded as world-wide. See also, specially, the provisions of section 450. And if there is any doubt, no objection would probably be raised to a colonial Legislature embodying in an Ordinance similar provisions. The provisions of section 451, relating to loading of timber, are confined to ships arriving in the United Kingdom during the winter and early spring months, similar provisions if desired by many of the colonies would probably have relation to ships leaving the colony. The provisions relating to the carriage of grain in section 452 appear to be general in their application, and, so far as they go, the same may be said of the provisions of sections 453 to 450 inclusive. The provisions as to unseaworthy ships, sections 457-458, are general. The provisions contained in sections 459 to 462 inclusive apply only in the United Kingdom, but I see nothing to prevent a colony embodying similar provisions in an Ordinance if it be thought desirable. Section 463 appears to be general, and would apply in a British possession subject to some modifications in detail. It seems clear that the powers conferred by section 735 would enable a colonial Legislature by enactment to repeal the provisions of this part of the Act so far as they affect ships registered in that possession, but in the absence of special circumstances I doubt whether, m the interests of uniformity, His Majesty would be advised to sanction such legislation. With regard to Part VI., the subject of shipping inquiries has been dealt with by my predecessor, Sir Walter Murton, in a memorandum, a print of which has, I understand, been forwarded by the Colonial Office to the various British possessions. I should like, however, to make the following observations with regard to shipping inquiries in British possessions. As regards colonial legislation, section 478 of the Imperial Merchant Act, 1894, is the governing section. Where colonial legislation has created Courts or tribunals competent to hold inquiries, the powers of section 478 come into operation automatically (of " The Merchant Shipping Colonial Inquiries Act 1882 "), and though, as a general rule, it is undesirable to restate verbatim in a colonial Ordinance the provisions of an Imperial Act when they apply, it may be admitted that whereas in this part of the Imperial Act Courts in colonies holding inquiries are to have the same powers of cancelling or suspending certificates, and to exercise those powers in the same manner as the Courts holding similar investigations or inquiries in the United Kingdom, it is permissible and desirable that the sections in the Imperial Act which lay down the powers and procedure should be repeated in the colonial Ordinance. It should be noted that section 478, though applicable in some respects to the same matters as those mentioned in section 464, is more limited as regards the events upon the happening of which an inquiry can be held, casualties and misconduct and incompetency are restricted to fewer cases, and the events which constitute a shipping casualty, such as the abandonment, stranding, loss of, and dama-e to a vessel, coupled with loss of life by reason of a casualty, are the occurrences which practically constitute or define a shipping casualty. No such definition is to be found in section 478 That section simplv refers to a shipwreck or casualty, and colonial Legislatures may therefore prefer to rely solely on the words " shipwreck or casualty," and to put their own reasonable construction thereon, or may desire to define a casualty by reference to the actual occurrences constituting a shipping casualty which are set out in section 464, so far as fall within the wording of section 478. The provisions relating to Courts of survey, sections 487 to 491, are limited to the United Kingdom, but I see nothing to prevent a colonial Legislature adopting similar provisions. The provisions of sections 480 to 486 inclusive, which refer to Naval Courts, do not, of course, concern a colony. Part VII., delivery of goods, appears to be limited to the United Kingdom. Part VIII Liability of Shipowners.— This part is, by section 509 (and see section 504), except where the context otherwise requires, extended to the whole of His Majesty's dominions. It would therefore seem to be unnecessary for any colonial Legislature to deal with the subject matter dealt with in this part. Part IX. Wreck and Salvage.— Section 510 is general in its application. Sections 511 to 557 are, in the main, limited to the United Kingdom (but see sections 523,544,545, and 554). Especial attention is directed to the provisions of section 523, by which it is provided that unclaimed wreck found in any part of His Majesty's dominions belongs to His Majesty, except in places where the right to unclaimed wreck has been granted out by the Crown. If therefore a colony legislates on lines similar to those above mentioned, care should be taken to provide that the proceeds of unclaimed wreck found in a colony should be paid to the Imperial
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Exchequer. The provisions of the " Colonial Courts of Admiralty Act, 1890," which more especially deal with droits, have, however, to be kept in mind. Sections 557 to 564 are general. Sections 566 to 569 apply only to the United Kingdom, but could no doubt be adopted by colonial Ordinance. Part X. Pilotage.—By section 572 this part of the Act extends to the United Kingdom and Isle of Man only. Part XL Lighthouses.—The provisions of this part of the Act are, in the main, applicable to the United Kingdom, and the only powers with regard to colonial lights are those contained in sections 670 to 675 of the Act of 1894. It should be observed that section 673 has been repealed by " The Merchant Shipping (Mercantile Marine Fund) Act, 1898." Unless, therefore, the power exercisable by His Majesty has been vested in a colonial Legislature, or the Government of a colony, it would appear that any colonial legislation which goes beyond the above-mentioned provisions of the Imperial Act would be ultra vires. Part XII., Mercantile Marine Fund, does not concern the colonies. Part XIII. Legal Proceedings.—By section 712 this part of the Act, except where otherwise provided, applies to the whole of His Majesty's dominions. Section 711 should be noted. Part XIV. Supplemental—Section 713 has already been referred to. Section 720 provides that, subject to any special provisions of the Act, the Board of Trade may prepare and sanction forms for any book, instrument, or paper required under the Act, other than those required under the first part, which are to be prescribed by the Commissioners of Customs with the consent of the Board of Trade. Sections 721 and 722 appear to be general in their application. Section 723 needs no comment. Sections 724 to 726 inclusive can be put into force in a colony by virtue of the provisions of section 727, and although there is no such express power given as regards Inspectors (sections 728 to 730 inclusive), it is conceivable that a colonial Legislature may make similar provisions for the appointment, &c, of Inspectors for carrying out the provisions of Acts relating to merchant shipping in force in the colony. Sections 731 and 732 do not concern a colony. The exercise of the powers conferred by section 733 must, I think, be confined to the Board of Trade as the central authority, except perhaps as regards ships registered in a colony, and even as regards those ships it would probably be undesirable that a colony should seek to exercise its power under the provisions of section 735. Section 734 needs no comment. Sections 735 and 736 I have already dealt with. Sections 737 to 741 inclusive need no comment. Section 742 defines certain expressions made use of in this Act, and it would be desirable when a colony is legislating on matters relating to merchant shipping that provision should be made that in construing the Act or Ordinance, unless the context otherwise requires, the words and expressions used in that Act or Ordinance should have the same meaning as those assigned to them by " The Imperial Merchant Shipping Act, 1894." In conclusion, I think that as a general rule it is not desirable that a colonial Ordinance should repeat verbatim the provisions of " The Imperial Merchant Shipping Act," which have operation in the colony, for in the event of any of the provisions of the Imperial Act which apply in a colony being amended by the Imperial Parliament, questions may arise as to the effect of the Imperial amendment on the provision so repeated in the colonial Ordinance. I can conceive that a plea might be raised for such a verbatim repetition as that to which I have referred, on the ground that it is desirable to have in one colonial Act all the provisions relating to merchant shipping which have operation within the colony, and although I feel the force of such a plea, I think the object would be sufficiently met by including in a schedule to any colonial Ordinance relating to merchant shipping, such of the provisions of the Imperial Act as have effect throughout the whole of His Majesty's dominions. In conclusion, I would point out that I am aware that some of the provisions of the Ordinance which would come under the foregoing criticisms have no doubt in the past been the subject of legislation in the colony, and that it may be contended that the time has gone by for suggesting that such legislation is ultra vires, but in connection with this I would call attention to the criticisms of the Board of Trade and my predecessor in 1898 on the New Zealand Act of 1897, and the reply from Lord Banfurly on the 20th December, 1898, to Mr. Chamberlain, in which he refers to the proposal to consolidate the New Zealand shipping laws, and states that when this was done the remarks of my predecessor on the matters then in question would receive careful consideration. It may be also mentioned that Mr. Seddon's views were obtained upon my predecessor's memorandum. The memorandum of the Attorney-General, which was received after the Ordinance, indicates the matters which appear for the first time in the New Zealand shipping legislation, and so far as
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these at all events are concerned, differ from the provisions of the Imperial Act, acquiescence in the past cannot be relied upon. It is unnecessary to emphasize the point that the last thing any one would wish to do would be to interfere with our colonies in the way in which they legislate for their own special matters, but where we get into the realms of Imperial interests different considerations must arise, and they are so important that careful criticism should not be regarded in any way as captious or hostile. Where Imperial interests are concerned, uniformity of law is by far the best guarantee for harmonious working, and considering that the colonies have, owing to recent events, been drawn closer to the Mother-country, and that voices are heard calling for the interregulation of their respective commercial interests, the present time can well be taken as an opportunity for urging that on such an important subject as the statutory obligations of our merchant shipping laws throughout the world those of the Mother-country and her colonies shall, as far as possible, be brought into unison, and that the strain on the ropes which unite her and them shall not be greater at one end than the other. In the light of the foregoing observations I propose now to deal in another memorandum with the provisions of the New Zealand Act, and to offer such detailed criticisms as occur to me. For convenience of reference I have indicated in that memorandum, and also in the margin of a print of the Act, against each clause thereof, the different sections of " The Imperial Merchant Shipping Act, 1894," with which the clauses in the colonial Act more or less correspond. I say more or less', because, although in many cases the clauses of the colonial Act agree almost verbatim with the provisions of the Imperial Act, yet in certain instances there are additions, and in other instances there are omissions, and different authorities are in the colonial Act substituted for those prescribed by the Imperial one. I have also inserted in the memorandum the sections of the New Zealand Shipping Acts, which, so far as I have been able to find, correspond with those in the Ordinance. I am afraid that, so far as New Zealand is concerned, the principles which govern colonial legislation, which I have endeavoured to bring out in my memorandum above, have been in the past somewhat relaxed, e.g., section 2 of the colony's Act, 1877, when the scope of the Act was, I think, allowed to extend'further than is contemplated by the Imperial Act, and it may be difficult to go back upon past legislation, but the time has probably come to prevent further extensions in this direction, and it may be that, notwithstanding that the colony's Acts technically go further than they should, they may in practice have not worked any great detriment to British shipping. 14th October, 1904. K.E.C.
Enclosures. Board op Trade to Colonial Office (received 20th December, 1904) ; [answered by No. 42934]. Marine Department, 7, Whitehall Gardens, London, S.W., g IB _ 20th December, 1904. With reference to the letter from this Department of the 25th October last and previous correspondence on the subject of the New Zealand Shipping and Seamen Bill, I am directed by the Board of Trade to forward herewith, for the consideration of Mr. Secretary Lyttelton, a copy of a further memorandum by the solicitor to this Department, containing criticisms in detail of various sections of the Bill for consideration from a legal point of view. The Board desire me to state, however, that the Bill gives rise to questions involving considerations of policy as well as of law, and they would suggest, for Mr. Lyttelton's consideration, that a conference between members of the Colonial Office and of this Department might be arranged for the purpose of dealing with these questions. The Board of Trade are anxious that any discrepancies between the New Zealand Bill and the Imperial Merchant Shipping Act of 1894 which may give rise to conflict between the Imperial and the colonial law should be met either by the insertion, if possible, of a clause in the Bill providing that vessels complying with the Imperial Merchant Shipping Act shall not be required to comply with other than local requirements in New Zealand, and that if there is a conflict of law in any particular case the Imperial law shall-prevail, or in some other way. I have, &c, Francis J. S. Hopwood.
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(M. 21,266.) Applying the principles as set out in my general memorandum, to the provisions of the various sectionsjof the New Zealand Act, the following is the result:—
I. C3 CO ts] o 0) to %m 93 00 ■M U P4 a "3 . (D CO o o +r oj += -w P o <D -< CO <D I ca a o o ™ si> m .2 "8 J S S _ CO CO .2 S 2 sag a, o a l-H Observations. 1 I 2 Preliminary. The application of this Act to all British ships registered at, trading with, or being at any place within the jurisdiction of New Zealand is, it is submitted, in excess of the powers of the colonial Legislature. The only provision in the Imperial Act which warrants such an extension of the jurisdiction of a colonial Legislature as regards merchant shipping is to be found in section 264 of the Imperial Act, Part II., and is confined to the matters therein referred to. 3 4 742 The definitions of " buoys and beacons," " Collector of Customs," " consular officer," "harbour," "lighthouse," "master," "pilot," "seaman," "ship," "superintendent," "tidal water," and "wages," are substantially those contained in section 742 of the Imperial Merchant Shipping Act, 1894. The definition of "amidships" is taken from section 437 of the Imperial Act. The definition of " desertion " should, I think, be omitted. There is no such definition in the Imperial Act, and whether or not "desertion " is proved seems to be a matter for a court of law. Moreover, as defined the " desertion" will operate most harshly against seamen and the definition would appear to be contrary to English decisions. See The Westmoreland, 1 Robs. Ad. Rep., p. 216, and the cases therein cited. See also Lewis v. Jewhurst, 15 L.T., 275 ; The Baltic, 1 Edw., 86; The Frederick, 1 Hag. Adm., 211; The Blake, 1 W. Rob., 73 ; The Ealing Grove, 2 Hag. Adm., 18; and the Malta, Ibid., p. 158. The definition of "freeboard" is substantially that of "clearside," contained in section 436, (5), of the Act of 1894. Part I.—General Department. 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 713 721 722 723 724 725 726 728 729 730 The provisions of the sections comprised in this Part unless limited in their subject matter in the manner indicated in my general memorandum would be ultra vires the provisions of the Imperial Act. II.—Masters, Engineers, and Seamen. 21 92 Certificates of Competency. See remarks above on Part I. The Imperial Act specfically lays down what is necessary as regards every British foreign-going ship when going to sea from any place in the United Kingdom, and this would include a vessel touching at a port in New Zealand in the course of a voyage from the United Kingdom. Having regard to the proviso to section 21, (3), it is probable that this section, though it goes beyond the requirements of the Imperial Act as regards certain voyages already covered by the Imperial Act will not in practice work much hardship, but it would be much better if it were limited to such voyages as are not already covered by the Imperial Act. Sections 261 and 264 of the Imperial Act coupled with sections 735 and 736 are the sections of the Imperial Act which indicate the powers of the colony, and regard should be had to these sections in considering the provisions of the sections in this Part II. of the New Zealand Act— i.e., 21 to 167 inclusive. 22 23 24 25 26 27 93 94 * The provisions of section 24 are only to be found in the Board of Trade regulations relating to examinations. 98 99 100
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§ c6 w Cs] o J* 2 CO II ■g<f T3 s^ O fees m " CD 2 N § I* «! cd -«q CQ CD U P4 CO a o cu co a ID v% 2 3 8 CD oQ . —i *■* CD HOB 'gas J Observations. 29" 30 31 32 101 103 104 The provisions of section 24 are only to be found in the Board of Trade Regulations relating to examinations. Apprenticeship to the Sea Service. 33 34 35 36 37 105 106 in part 107,108 109 iNo observations. 38 39 40 41 42 43 111 112 113 114 115 116, partly 117 118 119 120 121 122 123 124 Engagement of Seamen. These sections would be unobjectionable if limited to such vessels and voyages as the colony has power to legislate for. As it is they are in their application to various cases apparently ultra vires, but their effect - is probably modified by section 41 (4.) It may be noted that the provisions of section 41 (26) go beyond the provisions of section 114 and that section 42 (g) does not agree with the Imperial Act. 44 45 46 47 48 49 50 51 52 53 54 126, partly . . Bating of Seamen, &c. /The remainder goes beyond the Imperial Act. The manning scale in the Third Schedule will require careful consideration. So long as the intercolonial trade mentioned in section 54 is confined to voyages " opened " : in New Zealand it is probable that these provisions are unobjectionable. The svstem of continuous discharges which is now firmly and successfully established in the United Kingdom should be kept in mind as regards , these sections. '•• 55(1) 56 57 127 128,129 130 Discharge of Seamen. | It would seem that where a single seaman is discharged on board under [ 55, (3), he will not get a report of character under 56, (3). Payment of Wages. 58 59 60 61 62 63 - 64 65 66 67 131 132 133 134 135 \ See remarks in general memorandum as to application under section 264 of the Imperial Act of the provisions of Part II. of the Imperial Act. The crews of Home-trade vessels are not under the Imperial Act required to be discharged before a superintendent while the crews of all vessels are required to be so discharged under the New Zealand Act, conse- / quently in some cases where the sections of the Imperial Act are repeated verbatim the wording is not apt. cf. section 64, (4), which contains the words " where the settlement of a seaman's wages is by this Act required." Shipwreck under section 158 of the Imperial Act terminates an agreement. 136 137 138 139 68 69 70 71 72 73 74 140,141 142 143 144 145 146 147 Advance and Allotment of Wages. .See note above under " Payment of Wages." Bights of Seamen in respect of Wages. 75 See note above under " Payment of Wages," and section 736 of Imperial Act as to colonial coasting-trade. It is submitted that, for example, a vessel arriving from the United Kingdom on an agreement opened there and to return to the United Kingdom, although it may during such voyage go from one port in New Zealand to another with cargo (as such a proceeding would not amount to taking a coasting vogage in competition with other coasters), should not be subjected to these provisions, at all events not as regards seamen shipped outside New Zealand,
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a £ N o k'S l§ Z CO o o s 04 O a § co N g 5 o E w o° CD •< ca CD M a o cd co n C M r— I W <u rt O u ■sag a j-1 Observations. 9 ." 76 77 78 79 80 81 82 83 84 85 86 87 88 155 156 157 158 159 161 162 163 164,165 Unnecessary. The provisions of the Imperial Act apply to the whole of His Majesty's dominions, but if it be necessary under section 85 to give a Colonial Court of Admiralty power to hear cases of wages when the claim is above £50, is it not also necessary to give specific power when the claim is under £50, and is relegated to it under the provisions of 84? 166 167 168 89 90 91 92 93 94 95 96 97 98 99 169 170 171 172 173 174 175 176 177 178 179 Property of Deceased Seamen. /The provisions under this heading appear to be unobjectionable when not already covered by the Imperial Act, and subject to the observations as to formally applying these provisions under 264 of the Imperial Acts in cases where the Imperial Act does not apply. / 94, having regard to section 174 may be ultra vires. 99. This must be limited to the cases where there is no provision for the .money to go into the Imperial Consolidated Fund. No observations. 100 101 102 180 182 183 n " 103 186 Leaving Seamen Abroad. 103. Ultra vires, section 186 of Imperial Act unless section 186 is specifically repealed under section 735, and limited to the ships mentioned in that section. 104 105 106 107 187 188 189 Unnecessary, already provided by Imperial Act cf. section 261. „ and query if subsection (5) of 105 is not ultra vires. n Distressed Seamen Abroad. 108 193 These provisions of the Merchant Shipping Act, 1894 (as amended by the Mercantile Marine Fund Act, 1898), being world-wide, it would seem that the only provision which would be necessary in a colonial Act would be the conferring upon the official, who has the cognisance of merchant shipping in the colony, the right to recover expenses on behalf of the Crown, for, in the case of ships registered in New Zealand, if the proceedings were taken against the owner they would have to be taken in the colony. Superintendents, or other officials in colonies, whose business it is to enforce the provisions of the Imperial Act as regards distressed seamen, are, as a matter of fact, repaid the expenses they incur by the Board of Trade, and therefore any amount recovered must come back to the Imperial Exchequer. In this respect these sections will require amendment. 109 194 110 111 112 198 199 200 Provisions, Health, and Accommodation. These sections should in any case be limited to vessels registered in New Zealand or those merely engaged in the coasting trade. Moreover, the Board of Trade might desire that the report mentioned in section 198 should be sent to them as well as to the Minister. With regard to 112, in all cases governed by the Imperial Act the Board of Trade should be the supreme authority. By section 200 the Board of Trade is the supreme authority in regard to medicine and antiscorbutics in the case of all ships navigating between the United Kingdom and any places out of the same. It is believed that " navigating between " applies to every vessel opening articles in the United Kingdom, and so long as the same interpretation is accepted in New Zealand it does not appear that any objection can be taken to section 112. It is true that section '" 205 may appear to have a somewhat limited effect on the power of a colony, but it may be that this is only an enabling section until a colony possesses legislation to deal with those matters which are not covered by the Imperial Act. -
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a a C6 09 » a N o 3-2 .2 5 o M a 1 =0 N g $'% £<03 4» 43 CO <a S _o O CO M cd ot n oq 2% 43 H 0 o o o 2 2 2 & ° a Observations. 113 114 115 116 201 205a 203 206 Section 114 is really a reproduction of 205, (a), and except for convenience need not appear. This is a repetition and technically unnecessary, for if appointed by a Governor under section 205 of the Imperial Act, section 203 of that Act would apply. No legal objection if made under the powers of section 264, though it is one of these provisions upon which shipowners would probably desire to have an opportunity of commenting. This is already provided for by a section in the Imperial Act, and it is really unnecessary to repeat it. Moreover subsection 5 of section 207 of the Imperial Act is omitted. The remarks made on section 108 of the New Zealand Act apply in this 117 207 118 208 119 189,207 case. This section goes beyond the Imperial Act by providing for the return of the seaman to the port of his engagement, the provisions of the Imperial Act providing that the return shall be to a port in the possession, if he was shipped in a possession. In other respects, including the deposit of £50 and payment of wages to a superintendent in a British possession instead of to the seaman, this section differs from the Imperial Act, but in so far as it is an aid to the provisions of the Imperial Act, no objection need, I think, be taken. Unnecessary. Provided for by the Imperial Act. This provision should be confined to cases for which the colony can legislate. 120 121 209 No corresponding section in the Imperial Act. 210 122 123 124 211 690 This section, although only reproducing the provisions of former New Zealand Acts, goes beyond the provisions of the Imperial Act and should technically be limited if pressed for to vessels registered in New Zealand. This is provided for in the Imperial Act and is unnecessary. The provisions of the Imperial Act are limited to foreign-going British ships and to cases of death. The provisions of the New Zealand Act go further, and they should be expressed to apply to ships registered in New Zealand and to cases which are not covered by section 690. 125 126 127 128 129 212 & 213 214 215 & 216 217 218 1 I No observations. For the power of the colony to legislate see 261 and | section 264 of the Imperial Act. Provisions as to Discipline. 130 220 The Imperial Act is confined to British ships. This section in the New Zealand Act seems to be unnecessary, unless it is intended to cover the case of a foreign ship which would require to be considered. This raises a large question. Under the old cases it has been held that a master has power to correct for the purpose of discipline, but this provision would overrule those cases, and it would be better that it should be omitted. 131 Nothing corresponding in Imperial Act. 221, partly 132a read in connection with the definition of desertion in section 4, so far as it relates to absence without leave for forty-eight hours, is ultra vires the Imperial Act. Subsection (5) is not an Imperial Act. This section should follow the Imperial Act in subsection (3), as, in that case, the owner or ship's agent would be named, and the right to damages against them would attach for wrongful, arrest. This clause is unnecessary having regard to section 224 of the Imperial Act, which applies out of the United Kingdom. Subsection (2) is limited to foreign going ships, while the Imperial provision is not so limited. Why should there be this difference ? 132 133 223 224 134
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8 C6 go N o felS S o §i2 o o CD H3 a a 1 g s " £ai II 00 CD N CO a o "■§ a g> cd cn a ■« H H o o o CD CO •—< h CD c3 O u •sas s. § a M Observations. 135 136 137 138 139 225 226 227 This clause appears to be unnecessary, except in cases excluded from 261. Is there any object in departing from the wording of section 225 of 1894 Act in applying it under 264 ? "Where no fine has been imposed." Does this include forfeiture ? Unnecessary except for ships registered in New Zealand and within her jurisdiction. Not in Imperial Act. Is it intended to enable a Court to direct payment of wages to seamen even although a pecuniary claim against him for breach of contract is outstanding ? Reference here to loss and expense (if any) occasioned by any desertion previous to the engagement. There is no provision in the New Zealand Act as regards forfeiture of wages for any desertion except the one for which the seaman is actually being prosecuted. Section 132 might adapt the provisions of Imperial Act by substituting for " the United Kingdom " in section 221 the words " New Zealand." This is unnecessary, except for ships and voyages not covered by the Imperial Act. The provisions of the Imperial Act are only partially reproduced. I No objection to application of this section under the provisions of sec- | tion 264 of Imperial Act. IThe sections, except in cases which are not already covered by the Imperial Act and which can be dealt with by colonial Legislature, are ultra vires section 232 of Imperial Act, the parties for whose benefit the forfeitures are to be made not agreeing with those named in Imperial Act. [ See observations on sections 141 and 142. 235 (b) of the Imperial Act seems to apply in some cases, but the repetition of this provision and application to New Zealand in section 147 need not be objected to. 228 140 141 142 229 (1) 230 231 143 144 232 145 146 147 233 234 235 *•." 148 236 & 237 in part 237 in part 223 in part and 224. | The Imperial Act already applies to vessels registered in New Zealand [ except when within jurisdiction of New Zealand. The provisions of sections 223 and 224 of the Imperial Act, so far as they relate to desertion and absence without leave, already apply except to ships registered in New Zealand when in New Zealand. Might not section 150 conflict with section 133 (4) of New Zealand Act? 261 (c) of 1894 Act governs this case to the extent of showing how far the Imperial Act goes. 149 150 151 258 152 239 in part 241 in part 240 242 243 VSee last observation. No corresponding provision in Imperial Act, and although entries in an engineer's log are in certain cases admitted as evidence, this provision should, I think, be limited to vessels registered in New Zealand. /■No observations, but it should be expressed to be an adaptation of the provisions of the Imperial Act under section 264. The provisions of J section 247 would appear to apply in a colony, having regard to | definition of superintendent in section 742, and the opening words of section 261 ; on this view subsection (2) of 157 is technically uns necessary. Fees for engagement and discharge of seamen in United Kingdom have been abolished, but no objection to this clause. Should not some reference be made in this section to section 39 ? 153 154 155 156 157 246 in part 247 249 158 159 250 in part 160 251 & 252 in part. 253 in part 253 256 (The provisions of these sections should be applied or adapted under the I powers of section 264 of Imperial Act. [ These provisions should be expressed to be in adaptation of the Imperial Act. In paragraph (h) of this clause the word " penalties " is used, in section 139 the word " fine " is used. Are there any fishing-boats not exclusively employed in fishing on the coasts of the colony ? 161 162 163 164 165 166 262 167 263 in part
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N o So CD o Zoo 00 CO s 3 . "3 » cd a N.° fe o CD ® gGQ *s a o to CD c Pw CO a ?.» cd co a CD 03 a o t-i ■Egg 3 Observations. The Imperial Act excludes the application of certain of the provisions of Part II. of that Act to fishing boats, because special provisions therefor are made in Part IV. Has the colony such special provisions ? If not the clause may call for some consideration, though it is, perhaps, not a matter which very much concerns the Imperial Government. III.—Regulation op Passengers. 168 287 in pan It should be noted that the Imperial Act only deals with steamers, and it it is not clear whether subsections 168 and 169 are intended to apply to sailing-ships. By section 267 of Imperial Act all passenger steamers carrying passengers to or from or between any places in the United Kingdom are already covered by section 287, so that the New Zealand Act should clearly be confined to such cases as are not already covered by the Imperial Act, and so far as voyages of ships registered in New Zealand are covered by the Imperial Act any legislation affecting them would have to be taken by way of repeal under section 735. Legislation affecting voyages of ships, whether or not registered in New Zealand, which are not covered by the Imperial Act, should in each case be considered on the merits. Line 1 : query, should not the word " passenger " be inserted after " home trade " before " ship " ? 169 288 170 171 271 partly IV.—As to Steamships. Having regard to the provisions of section 284 of the Imperial Act and the Order in Council thereunder affecting New Zealand, the provisions of this part of the Act call for very careful consideration. There is no such provision as this in the Imperial Act. It should in any event be limited to vessels built in the colony. Under the Imperial Act it is only steamers carrying more than twelve passengers which are required to be surveyed every year. There is no definition of passenger-steamer in the New Zealand Act. Should not the word "passenger" be inserted before "steamship" wherever it occurs in this Part ? The provisions of the sections in the Imperial Act are amalgamated ; should not the provisions of section 172 be limited to vessels registered in New Zealand by repeal under 735, and to cases not covered by the Imperial Act? 172 272 & 273 174 175 274 275 176 177 178 179 180 181 182 183 184 185 276 277 partly 278 279 280 281 partly 282 283 726 Imperial only refers to passenger-steamers, as the word " steamer " therein must mean " passenger-steamer." Provision for interim certificate not in Imperial Act. No fees in Imperial Act for steamships not carrying passengers. Only passenger-steamers covered by Imperial Act. Passenger-steamer only in Imperial Act. Subsections (2) and (3) are not in Imperial Act. See observations on sections 5-20 of New Zealand Act. The provision making Board of Trade passenger-certificates subject to the provisions of the Act is ultra vires. It is problable that the exemptions in this section may make criticisms more theoretical than practical, but no Imperial certificate should be subject to the provisions of this Act, and the colony cannot legislate for voyages already covered by section 267 of the Imperial Act except to the extent of repealing such provisions as regards ships registered in her own possessions. Moreover, the provisions as regards certificates valid in other British possessions and foreign countries must be considered in the light of'the provisions of section 284 and the Orders in Council made thereunder. 186 187 285, 286, & 432. Nearly all these requirements are under the Imperial Act confined to " passenger-steamers." V.—Ships Propelled by other Powers than Steam, Etc. No observations. VI. —Colonial Pilots. No observations.
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a 3 EC M -P CD 13 a a Cfl CO cd a N o CD CD •3 GO CO a o CD <4 m CD G a I » IP cd co a ■£ " 9 CD co —. U CD ee o u ■cas a h-t Observations. VII.—Safety. 191 192 419 420 This is really unnecessary ; it is already provided for by the Imperial Act. If a surveyor is appointed under the provisions of section 727 of the Imperial Act his power under section 420 would probably attach, and the re-enactment of the provision of that section in 192 of the New Zealand Act would seem to be unnecessary. See observations on section on 191. See above. See obseruations on section 191. See observations on section 191, or limit to vessels registered in New Zealand. 193 194 195 196 422 423 425 426 197 198 199 200 201 427 428 430 431 432 in part I See observations on section 191. See observations on section 192. The corresponding section of the Imperial Act is limited to sea-going steamships carrying passengers. 202 203 434, partly 435 See observations on section 191, but the corresponding section of the Imperial Act is limited to passenger-steamers and emigrant ships. Subsection 4 is not in Imperial Act. This is taken from section 1 of " The Anchors and Chain Cables Act, 1899." The provision is general, but the difficulties of complying with its provisions in New Zealand have, I assume, been considered. C These provisions of the Imperial Act appear to be general in their application, and their re-enactment in the New Zealand Ordinance appears to be unnecessary. Moreover, subsection (2) of section 208 of the New Zealand Act would appear to limit the power of New Zealand authorities as regards the enforcement of the provisions of section 442 of the Imperial Act re-enacted in section 211 of the New Zealand Act in a case in which the centre of the disc indicating the load-line had been grossly submerged at her last port of loading prior to arrival in New Zealand, but which by reason of consumption of coal, &c, ceased to be submerged (_ on arriving at a port in New Zealand. This section should be limited to cases other than those to which section 440 of the Imperial Act applies. Otherwise there appears to be the possibility of a conflict of laws. No observations. ) This is provided for by the Imperial Act and appears to be unnecessary. J In addition the penalty in section 212 is very high. It is for consideration whether from a constitutional point of view the Governor in Council can exercise the powers of His Majesty in Council; if not, the section is ultra vires. 204 205 206 207 208 436 437 438 439 209 440 210 211 212 213 441 442 (2) 443 445 214 215 216 446 447 448 449 1 Except for the reference to " The Explosives Act, 1875," the provisions of the Imperial Act appear to be general, and, if so, their re-enactment in the New Zealand Act is unnecessary. No such prohibition in Imperial Act, but no objection. See observations on section 214. The provisions of the New Zealand Ordinance go further than the Imperial Act, but the regulation of the loading of grain is possibly within their jurisdiction. See above. 217 218 219 450 452 to 456 220 & 221 222 223 224 85 The provision of the Imperial Act appears to apply, and except that "Crime" is substituted for "misdemeanour" and "Minister" for " Governor," there is apparently no necessity to re-enact the provision. The New Zealand provision in subsection (1) goes further than the Imperial. It should be limited. 457 226 459 227 228 229 230 460 461 462 463 [ No observation. '..", See observation on section 226. • - . The Imperial Act appears to apply and the re-enactment seems unnecessary except, perhaps, for the purpose of local administration. No observation. Under section 7 Minister may make regulations. Under 232 it is tha Governor in Council. See my observation on section 7. 231 232
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a c3 co ,5 ° g ° O CD co* 5 o > CD G ■a a _ca eg co CD c3 N O *'■§ CD CD [ZJCO a o CD <J CO CD M P4 to a .2 o xn «> cd to a U o O <*% ~* y cd e8 o 5 l B § a t-H Observations. VIII. —Shipping Inquiries and Courts. 253 234 235 236 237 238 239 240 464 465 466 468 690 partly 469, 470 471 472 iSee observations in my general memorandum. The dealings with certificates granted in the United Kingdom or those which are equivalent to Imperial certificates must be carefully safeguarded and kept within the colony's powers. No observations. (See observation on section 233 et seq. j The power of the Governor to cancel or suspend an Imperial certificate ( must be carefully considered. Unless the Supreme Court is a Colonial Court of Admiralty or ViceAdmiralty Court, this section is ultra vires. No observation, but unnecessary. This section is ultra vires unless limited to local certificates. See last observation and cf. section 478 (6) of the Imperial Act. This is ultra vires as to such cases which fall within section 475. See my observations in my general memorandum. 241 242 243 244 245 246 247 248 249 250 473 474 475 479 478 (3) 487 488 489 490 491 ySee my observations in my general memorandum. IX.—Wreck and Salvage. 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 510 566 511 512 513 514 516 517 518 519 520, 521 522 531 525, 526 527 535 536 ' See my observations in my general memorandum. - 1 I » 270 271 272 273 274 275 276 277 278 279 280 281 282 283 537 & Larceny Act 544 546 547 548 549 550 551 552 553 554 555 556 567 569 -See my observations in my general memorandum. See observation to section 240. [No observation. 284 285 286 287 288 289 290 291 292 634 638, 639 652 643 649 650 651 666 667 X. —Lighthouses. As pointed out in my general memorandum, section 670 of the Imperial Act is the governing section as to lighthouses in colonies and the dues " leviable therefor. In so far as the provisions of the New Zealand Ordinance go further than section 670 they are ultra vires.
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s efl co .S a o § CO co I' CD a a c3 co <H a tsi o CD CD 4.S a a CD *tj CO CD U Qj a o aj «j a O o O < »J p—i a cd c3 O n 'gas a H Observations. XL —Liability op Shipowners. 293 294 295 296 297 298 299 300 301 302 303 304 502 See my observations in my general memorandum. 503 504 505 506 *\ \~ See also criticisms by Messrs. Hill, Dickinson, and Co. XII.—Registration of Shipping. 305 306 307 308 309 310 (l) 310 (2) 311 312 313 314 315 316 89, but see S. 4 (2). 5 6 7 8 9 1 10 12&14 15 partly 16 13 17 & 18 partly 19 partly ") See my observations in general memorandum. These provisions appear to be technically ultra vires unless the corresponding sections in Part I. of the Imperial Act are repealed under the provisions of section 735, but even in that case the provisions of the Ordinance should follow the wording of Imperial Act unless any good cause be shown for altering it, and although in some instances some official in New Zealand might be substituted for the Board of Trade, some of the sections in the Ordinance are apparently unnecessary as only repetitions of others in the Imperial Act. 317 318 319 320 321 322 323 324 325 21 48 49 50 51 52 53 Section 321 deals inter alia with ships registered elsewhere than in New Zealand. Any undue attention in this part of the Imperial Act requires careful consideration. 47 partly 326 327 328 329 330 331 332 333 334 335 336 337 338 339 680 partly XIII.— Legal Proceedings. 681 682 683 684 685 686 692 693 694 696 697 See my observations in my general memorandum. Sections 326, 327, I 328, 329, and subsection (c) of 338 deal with matters of detail which are ' possibly necessary, but the rest of these sections are in effect repetitions of sections in the Imperial Act and appear to be unnecessary. XIV.—Miscellaneous. 341 73 This is contrary to the provisions of section 73 of the Imperial Act, so that to be in order this Ordinance should repeal that section under the power in section But the provisions as to the Imperial national flags should not be altered without very good cause. Has any warrant been obtained under section 73 subsection 1 ? 342 343 344 345 59 83 -j No observations.
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REPORT BY HILL, DICKINSON, AND CO. ON " THE SHIPPING AND SEAMEN BILL, 1903," OF NEW ZEALAND. This Bill is divided into fourteen Parts, as follows :— 1. General Management (sections 5 to 20). 2. Masters, Engineers, and Seamen (sections 21 to 167). 3. Regulations of Passengers (sections 168 and 169). 4. As to Steamships (sections 170 to 187). 5. Ships propelled by other Power than Steam and restricted-limit steamers (sections " 188 and 189). 6. Colonial Pilots (section 190). 7. Safety (sections 191 to 233). 8. Shipping Inquiries and Courts (sections 233 to 250). 9. Wreck and Salvage (sections 251 to 283). 10. Lighthouses (sections 284 to 292). 11. Liability of Shipowners (sections 293 to 304). 12. Registration of Shipping (sections 305 to 325). 13. Legal Proceedings (sections 326 to 340). 14. Miscellaneous (sections 341 to 346). The Bill is principally a consolidating and not an amending Bill. It repeals and re-enacts in substance the following New Zealand Acts, which at the present time regulate merchant shipping in that colony : — 1877, No. 54. " The Shipping and Seamen's Act, 1877." 1885, No. 15. " The Shipping and Seamen's Act 1877 Amendment Act." 1889, No. 10. " The Shipping and Seamen's Act Amendment Act." 1890, No. 15. 1894, No. 62. 1895, No. 51. 1896, No. 37. 1899, No. 15. The Bill is, however, to some extent an amending Act, and contains provisions some of which are new alike to the shipping laws of New Zealand and to those of this country. The Bill in its general outline follows very closely "The Merchant Shipping Act, 1894," the provisions of which are in many cases reproduced verbatim. In other cases, however, the Bill introduces considerable variations, and in considering these variations it is necessary to examine the joint effect of the Bill and "The Merchant Shipping Act, 1894." "The Merchant Shipping Act, 1894," it must be remembered, is an Imperial Act, the provisions of which in many cases apply not only to the United Kingdom but to the colonies as well, while the present Bill is declared to apply not only to ships registered in New Zealand but "to all British Ships .... trading with or being at any place within the jurisdiction of New Zealand, and to the owners, masters, and crews thereof." In some cases, therefore, the Bill covers matters already dealt with by the Imperial Act, and in cases where the two Acts are not in accord great complexity may result, and questions may arise as to the joint effect of the Imperial and colonial Acts. The Bill contains no less than 346 sections, and it is not possible to deal in this report with each section individually, and we therefore discuss what appear to us the more salient features of the Bill, with a view of pointing out in what particulars the Bill either (a) imposes new responsibilities, or (b) comes into conflict with the Imperial Merchant Shipping Act, or other laws of this country ; (c) is obscure or the interpretation of which is doubtful. Below will be found, in an appendix, general observations of the sections of the Bill which do not call for special mention. Scope of the Bill. The Bill, as above pointed out, is declared to apply " to all British ships trading with or being at any place within the jurisdiction of New Zealand, and the owners, masters, and crews thereof." The application of the Bill is a wide one, but how wide it is very difficult to say. In its widest sense it would include any British ship clearing from any part of the world on a voyage to New Zealand and any ship clearing from New Zealand to any part of the world. If this construction is to be adopted, the Bill must conflict very seriously with the Merchant Shipping Act, because it not only purports to create and regulate rights and obligations arising in New Zealand, but those which arise in this country and are already subject to the provisions of the Merchant Shipping Act or other legislation. For instance, questions as to the discipline on British ships, the powers and duties of master and officers towards seamen, the construction of British ships, and the accommodation of seamen are all subjects dealt with by the Bill, in which provisions are introduced not in conformity with the Merchant Shipping Act. In many cases the same discrepancies exist under the present laws of New Zealand, but the present Bill does little or nothing to remove this lack of uniformity. The expression, however, of " trading with " New Zealand is copied from the New Zealand Act of 1877, and may have received a more limited construction, in which ease many of the above observations would not apply ; but, in the absence of interpretation, one is bound to put the widest construction on the scope of the Bill. Another ambiguity in the wording of the Bill occurs in relation to " home and intercolonial " vessels. The Bill contains many sections specially dealing with such vessels, which are, or ought to be, inapplicable to vessels trading otherwise than solely between intercolonial ports. The following are the definitions, as given in the Act, of such ships : " Intercolonial trading ship "
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means any ship actually trading between New Zealand and any port within the Commonwealth of Australia, or between New Zealand and any of the islands lying between the parallels of 30° north and 30° south latitude, and the meridians of 155° east and 130° west longitude. "Home-trade -ship " means any ship employed in trading or going between any ports or places in New Zealand, but not to or from certain adjacent islands. Whether these definitions include only vessels trading solely within such restricted limits, or whether they include all vessels which, in the course of their voyage trade between New Zealand and ports in the Australian Commonwealth or two or more ports in New Zealand, and if the latter, whether they include such vessels only while so trading, it is difficult to say. If the Bill is construed strictly, a vessel trading from the United Kingdom, calling at Tasmania and again at one or more ports in New Zealand for cargo or passengers, would be included under both definitions. In such cases the Bill would, in many instances, seriously conflict with the Merchant Shipping Act, and impose responsibilities and obligations on British shipowners not contemplated by that Act. On the other hand, section 119 subsection (3) (h) would seem to point to a somewhat more limited construction. The definitions are a reproduction almost verbatim of the Act of 1877, so that it should be possible to ascertain what construction has been put on them, and how far such provisions have been applied to foreign-going ships. The definition of " foreign-going ships " does not give much assistance. A foreign-going ship is defined as meaning " any ship not included in the term hometrade ship," so that, apparently, an "intercolonial ship " may be, under certain circumstances, a "foreign-going ship," and vice versd. In the Merchant Shipping Act " home-trade ship" includes every ship employed in going or trading within certain limits. This definition includes only vessels trading solely within those limits, and it seems a pity that the Bill did not adopt a similar definition. Observations on the Bill. We will now deal with certain features of the Bill which we note for the reasons above mentioned. These it will be most probably more convenient to deal with in the order in which they occur in the Bill. Part I. Sections 5 to 20 deals with the appointment of a Minister of Marine and the general management of the Marine Department. These sections, as a whole, do not call for much remark, but they and a number of other sections in the Bill give to the Minister of Marine and in some cases the Governor, by Order in Council, powers to make rules and regulations for the carrying into effect the provisions of the Bill. Speaking generally, the colonial Legislature does not seem to have taken sufficient care to ensure that the powers of the Minister or Governor are exercised in accordance with the Merchant Shipping Act, and the regulations of the Board of Trade. The authority of the Minister or Governor is, in such cases, absolute, and he is not bound by the provisions of the Bill to exercise such authority in accordance with the Merchant Shipping Act, or the regulations of the Board of Trade, nor does the Bill in many cases provide that a compliance with the regulations from time to time made by the Board of Trade shall, for the purpose of the Bill, be considered as a compliance with the regulations as laid down by the Minister. The result, therefore, might be that the Minister might lay down a series of regulations binding on all British ships trading to New Zealand, the compliance with which would involve noncompliance with the rules and regulations of the Board of Trade. The difficulty is, no doubt, one of theory rather than of practice, but a slight modification of the Bill would put an end to it altogether. The following are some examples in which the Minister's or Governor's powers of making rules might conflict with the regulations of the Board of Trade or the provisions of the Merchant Shipping Act: Section 41, relating to the form of agreement with the crew ; section 112, relating to the supply of medicines and medical stores; section 112, relating to the supply of antiscorbutics; section 152, relating to the form of the official log-book; section 196, relating to life-saving appliances ; section 214, relating to the carriage of dangerous goods. Section 22 provides for a grade of third-class engineers, one of which is not recognised under the Imperial Merchant Shipping Act. Section 24 provides that the owner of any vessel or the Minister of Marine may require the master or mate of any vessel to submit to an examination for sight test. The Bill does not state that the passing of such examination shall be a necessary qualification for obtaining a certificate, but section 23 empowers the Minister to make rules for the conduct of examinations and the qualification of applicants, this would no doubt be provided for by such rules. This provision at first sight seems a stringent one, but the effect of it is considerably modified by clause 21, which provides that " every valid certificate of competency granted under the Merchant Shipping Act shall be of the same force as if granted under this Act." Section 39 provides that every person is liable to a fine not exceeding £10 who demands or receives, directly or indirectly, from a seaman or apprentice, or from a person seeking employment as a seaman or apprentice, or from a person on his behalf, any remuneration for providing him with employment. This provision would, if construed strictly, cover even the premium for taking an apprentice, which is evidently not intended, as there are special sections (33 to 37) dealing with the taking on board of apprentices. Section 40 requires the master of every ship to enter into an agreement in accordance with the provisions of the Bill with every seaman he carries to sea as one of his crew from any part of New Zealand. The section is probably not intended to apply to seamen engaged elsewhere than in New Zealand, but the words are so wide as to include all seamen on any ship leaving any port in New Zealand. Having regard to the fact that an agreement will have been entered into elsewhere with all seamen not engaged in New Zealand, the effect of such a construction would be to require a second agreement to be entered into in New Zealand, so that there might exist at the
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same time two agreements relating to one single employment, possibly in different forms and subject to different conditions. The section is not, however, a new one, but is a re-enactment of the Act of 1877, which has, no doubt, been found to work well in practice. The wording is also, mutatis mutandis, identical with section 113 (1) of the Imperial Merchant Shipping Act. Section 41 provides for an agreement in a particular form to be entered into with the crew. It may be noted that the particulars are substantially, though not exactly, the same as those required by the Board of Trade, as, in addition to other particulars, the free board of the ship whilst loading has to be stated. The Minister, moreover, has power from time to time to make alterations. Section 52, subsection (4), contains a new and very stringent provision with reference to the rating of seamen. It provides that "every person who enters into an agreement with a seaman who does not possess the proper qualifications under the Act for the position for which the seaman is engaged is liable to a fine not exceeding £10." This provision is not even limited to articles signed in New Zealand, though it was probably intended to be, and, in view of the application of the Bill to all British ships trading with New Zealand, might conceivably render the owner or master of a ship, the articles of which were signed in the United Kingdom, liable to a penalty in New Zealand for breach of the New Zealand law. The responsibility, moreover, of ascertaining that the seaman possesses the proper qualifications seems a very onerous one, and would seem to apply even where such qualifications were misrepresented by the fraud of the seaman. Section 52, subsection (5), which is a re-enactment of section 9 of the New Zealand Act of 1894, provides that every person who gives a discharge as A.B. to any person who has not served in the capacity and trade for which the discharge is given is liable to a fine of £50. It is to be noticed that there is no similar provision in the Merchant Shipping Act, and it may be doubted whether this and similar provisions are not void, as being repugnant to that Act. • Section 54 deals with the complement of the crew of ships engaged in the Home or intercolonial trade. All such ships have to carry the number of men specified in the Third Schedule to the Bill. The Merchant Shipping Act, it will be remembered, only requires ships to go to sea properly manned, and what this may mean depends on the circumstances of each case and the voyage on which a vessel may be engaged. The Bill, however, lays down a hard-and-fast rule for all ships engaged in the Home or intercolonial trade, and for all voyages within that trade. If the interpretation of the section is to be limited to vessels solely engaged in those trades no objection can reasonably be taken to the section, but if the expression is to be read in its literal and widest sense, the section imposes a very onerous obligation upon the owner, which is in addition to any obligation imposed by the Merchant Shipping Act. The provision is, however, not a new one, but is contained in the existing Acts. The schedule itself is a long one, and it is impossible to set it out in this report. Sections 55 to 57 relate to the discharge of seamen, and correspond to similar provisions of the Imperial Merchant Shipping Act. The following, however, are variations both on the Merchant Shipping Act and on the existing laws of New Zealand: Section 56, (1), requires the master to return to the seaman all previous discharges belonging to the seaman in his possession; (2) provides that, with the approval of the master, and subject to his signing the certificate of discharge, the chief engineer may discharge greasers and firemen ; (3) provides that on failure of the master to return to any seaman or officer his discharge or certificate respectively he is to lose one day's pay for every day in which default is made. Section 60, subsection (2), provides that all deductions for wages must be initialled by the seaman. This is a variation of the Merchant Shipping Act, and its object is difficult to see, The section does not state what is to happen if the seaman refuses to sign the deduction, nor whether the validity of the deduction is thereby affected. Section 63 provides that in the case of Home trade ships and intercolonial trading steamships, and in ships where the crew are engaged on time agreement, all wages shall be paid monthly. This section introduces the same ambiguity as to the meaning of Home trade and intercolonial ships, but in addition the section would seem to affect all British ships in which the crew are engaged on time agreement. Whether wages must be paid monthly only during the time in which such ships are employed within Home or intercolonial limits, or whether during the whole voyage from or to New Zealand, it is not clear. In any case, except in so far as it affects British vesssels actually within New Zealand waters the section would seem to be ultra vires. The repealed section of the New Zealand Act of 1894 is slightly differently worded, but the interpretation of it is not very much more clear. It is as follows :" In all cases where vessels are trading in the colony, and where vessels are engaged on time agreement, all wages shall be paid monthly." This section, it will be noticed, is limited not to Home and intercolonial trade ships but to " all vessels trading in the colony," and also " to vessels engaged on time agreement," whatever that may mean. Altogether the section is ambiguous, and should be remodelled so as to show clearly what it includes and what it does not include. Section 75, subsection (1), which is a re-enactment of section 10 of the New Zealand Shipping and Seamen's Act of 1896, provides that all seamen, whether engaged abroad or in New Zealand, whilst there employed, must be paid the rate of wages for the time being current in the colony and by subsection (3) the Collector of Customs is empowered to detain the final clearance of such ship until he is satisfied that the section has been complied with. This is subject to two provisos, the first of which is new, the second being a re-enactment of section 10 of "The Shipping and Seamen's Act Amendment Act, 1896 " : (1) That if the agreement is determined (a) by the master of any port other than that in which the agreement was originally signed, or (b) by effluxion of time, then any such discharged seaman shall be entitled to a free passage back to the port at which the agreement was signed if he so desires ; (2) that the section shall not apply to ships arriving with passengers or cargo but not trading in New Zealand further than for the purpose of discharging such passengers or cargo and shipping fresh passengers or cargo for carriage abroad.
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The second proviso does away in a large measure with the effect of the section, and the section only applies to vessels trading between two ports on the coast of New Zealand. The section therefore so limited is not of great importance to British shipowners generally, and the right of the New Zealand Legislature to make regulations for its coasting trade is, we think, unquestionable. The first proviso however is, by reason of its position, somewhat obscure. It is difficult to read it as a proviso, as it does not in any way qualify the wording of the section. The section deals with what is to happen when a seaman is employed in New Zealand, the proviso deals only with what is to happen when such employment is terminated. If the proviso is to be read as merely qualifying what has gone before, it does not seem open to serious objection, as its application would probably be limited to sending seamen engaged in New Zealand back to that port in New Zealand in which they were shipped. If, however, the proviso is to be read as a separate and substantive provision, it would appear to considerably extend the liability of a shipowner as it exists under the Imperial Merchant Shipping Act. Under that Act a shipowner may be liable to pay for a seaman's passage Home under the following circumstances: (1) where a British ship is transferred or disposed of out of His Majesty's dominions (section 186, (1), (a) ); (2) where the service of any seaman or apprentice belonging to any British ship terminates at any port out of His Majesty's dominions (section 186, (1), (b) ) ; (3) where seamen ave left abroad in distress (sections 190 and 191); (4) where seamen are discharged in consequence of any hurt or injury received in the service of the ship (section 207, (2)). The first two, as will be noticed, apply only to seamen discharged " out of His Majesty's dominions," while the third and fourth apply to all seamen discharged abroad, whether in or out of His Majesty's dominions. The proviso in the present Bill, read as a separate provision, would have the same effect as if section 186 of the Merchant Shipping Act were construed as applying to all places abroad instead of merely places outside His Majesty's dominions. Moreover, under section 186 of the Merchant Shipping Act, the master has the option, instead of providing the seaman with a passage back, to provide him with adequate employment on board some British ship, which option under the present Bill is not given to him. The mode of enforcing this provision of the Act, should the Bill become law, would be under section 84, by which any of the officers therein mentioned can withhold the clearance of a vessel until the provisions of the Bill have been complied with. It is true that under the Merchant Shipping Act the relief afforded by sections 190 and 191 to distressed seamen has received a very wide construction, which puts it in the power of certain authorities to say that practically any seaman left abroad is a distressed seaman, and section 193, (3), of the Merchant Shipping Act, by ( which the production of the account of expenses and proof of payment thereof are to be sufficient evidence that the expenses were incurred in accordance with the Act, make it impossible for the shipowner to raise any question as to whether the expenses were properly incurred on behalf of " distressed " seamen or not. At the same time, if the wider construction is correct, the present Bill would go, in express terms, very much farther than the Merchant Shipping Act, and throw upon the shipowner liabilities not contemplated by that Act. Section 79 contains a clause copied from the New Zealand Act of 1896, the object of which it is difficult to see, as it would not appear to give the seamen any right or to impose on the owner any liability not already covered fry the Act. The section is as follows : " Where a seaman (wherever engaged) is discharged in the colony, before completing the full term of his engagement, he shall be paid and may recover the full amount of his wages due up to the date of such discharge, notwithstanding the fact that he has not completed such full term." Section 111, dealing with the scale of allowance for bad provisions, provides a scale differing from the Merchant Shipping Act. The following is a comparison of the two scales of allowances :—
The amounts mentioned in the corresponding sections of the existing New Zealand Acts are the same as those provided by the Bill, so that the effect of the present Bill is not to augment the existing liability of shipowners in respect of bad provisions. The section is, however, as above pointed out, at variance with the Merchant Shipping Act, and it would appear doubtful how far a colonial Legislature has power to make laws affecting the relation between British shipowners and the seamen engaged by them contrary to the Merchant Shipping Act, in relation to which Act the contract of employment was made. Section 112, which re-enacts section 100 of the New Zealand Act of 1877, substituting the Minister for the Governor in Council, gives the Minister power from time to time to issue scales of medicines and medical stores, and provides that in so far as he does not do so the scales issued by the Board of Trade shall apply for the purposes of the Act. This section is open to the objection that it puts it in the power of the Minister to issue scales, which shall be obligatory on all British ships which do not conform to the regulations imposed by the Board of Trade. The same section also deals with the supply of antiscorbutics which are to be kept on board in accordance with the rules contained in the Fourth Schedule to the Bill. Both the section, in so
Mer ° ha Aot ShiPPin8 New Zealand BiU - 1) If the seaman's allowance is reduced by not more than one-third of the quantity specified in the agreement a sum not exceeding, per day [2) If his allowance is reduced by more than one-third of that quantity, a sum not exceeding, per day [3) In respect of bad provisions, per day s. 0 d. 4 s. 1 d. 0 0 8 2 0 1 0 1 0
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far as it relates to antiscorbutics, and the schedule referred to are identical with the corresponding section and schedule of the Merchant Shipping Act, substituting, however, the name of the Governor of the colony for that of His Majesty in that part which enables the Governor by Order in Council to make regulations concerning the supply of antiscorbutics on board all vessels trading to New Zealand. Now section 205 (b) of the Merchant Shipping Act provides that the Governor of a British Possession may make regulations concerning the supply in that possession of antiscorbutics, but the section goes further and purports to empower the Governor, by Order in Council, to make regulations concerning the quality and materials of antiscorbutics wherever supplied. The effect might be that antiscorbutics which had fulfilled the requirements under the Merchant Shipping Act might be condemned in New Zealand as not complying with the regulations of that colony. Section 119, subsections (1) and (2), re-enacts in substance section 5 of " The New Zealand Act, 1894," and provides for a deposit of £50 to be made by the master where any seaman has been left on shore incapacitated by the illness of the seamen in the service of the ship, as security for any expenses which may be incurred by the superintendent. Under the Merchant Shipping Act (section 207) where the master of, or any seaman or apprentice belonging to, any ship receives any hurt or injury in the service of the ship, the expense of providing the necessary surgical and medical advice, and also the expenses of maintenance until he is cured, dies, or brought back to the port at which he shipped, and in the case of death the expenses of his burial, are to be defrayed by the owner of the ship. In consequence of the decision of the English Courts that illness is a " hurt or injury," the Merchant Shipping Act goes even further towards the relief of the seaman than the Bill, and the above section only provides a convenient machinery for the speedy recovery of any sums expended for the above purposes. It may be noticed that whereas the Merchant Shipping Act refers to master seamen and apprentices, and the preceding sections 117 and 118 of the Bill apply to apprentices as well as seamen, section 119 only applies to seamen. This is probably an oversight. Subsection (3) contains similar provisions relating to Home trade and intercolonial ships. In such cases, however, the amount of the deposit is not fixed, and there is an alternative provision that if the owner or master provides the seaman with a passage back to the port in New Zealand in which he would be entitled to be discharged, his liability under the section shall be determined. The option, however, of receiving maintenance and medical attendance at the owner's expense, or being provided with a free passage back, belongs to the seaman and not the owner, and it is apparently only available in cases where the seaman would have been discharged in New Zealand. It is a little difficult to see what would be the position if the seaman belonging to a Home or intercolonial ship claimed under this section to be maintained during his illness and then claimed to be sent home under the provisions of section 207 of the Merchant Shipping Act or of those sections relating to distressed seamen, but there would probably be nothing to prevent his doing so. Section 122, so far as it relates to British ships not registered in New Zealand, is in serious conflict with the Merchant Shipping Act. The section deals with the accommodation to be given on British vessels, and subsection (1) provides for the same minimum accommodation as section 210 of the Merchant Shipping Act, but it proceeds to say that such space must be " in any ship " not more than 120 cubic feet and not more than 18 superficial feet. We understand that in consequence of the greater height to which the 'tween decks of modern steamers are carried, it may sometimes occur that the cubic space is in excess of 120 cubic feet for each seaman, and compliance with the Bill might involve the owner in considerable cost in altering the internal arrangements of his vessels. Other possible objections might be urged against this clause, as follows : " (a) That it is unnecessary and vexatious, and would tend to restrict the natural development of steamships and the free selection by the shipowner of what he considers the best type of vessel for any particular trade, (b) That it is not in accordance with the Merchant Shipping Act, and if every colony were to be permitted to adopt a set of regulations for the accommodation of seamen and similar purposes without regard to those imposed elsewhere, a state of affairs might arise under which a ship built to the requirements of one colony could not trade to another without infringing its regulations, and a ship built to the requirements of the laws of the Mother-country could not trade with any of its colonies without infringing some or other of their regulations. Subsection (2) of the same section is, broadly speaking, similar to section 210, (2), of the Merchant Shipping Act, but the following words are in addition, " or if any paint locker, urinal, watercloset, or latrine is built in or about any such place so as to be detrimental to the health of the seamen," and the penalty for not complying with the subsection is 10s. for each day during which the offence continues, instead of Is. as under the Merchant Shipping Act. The section as a whole is, however, a re-enactment of the existing law of New Zealand, as contained in the New Zealand Acts, 1877 and 1894. Sections 130 to 150 contain provisions as to discipline which are similar to those contained in sections 220 to 238 of the Merchant Shipping Act. There are, however, certain offences dealt with by the Bill which are not made offences by the Merchant Shipping Act, and the punishment of offences is not in all cases that imposed by the Merchant Shipping Act, as the table which will be found in Appendix B will show. It will be noticed that under the Bill the following offences are punishable only if committed on the " high seas," viz. : Disobedience, neglect of duty, assaults on officers, and combining to disobey, so that under the Bill there would appear to be no remedy in the following cases, viz.: Disobedience before the ship has reached the high seas; disobedience after the ship has arrived in safety ; continued disobedience not on the high seas; assaults on officers not on the high seas; combining to disobey not on the high seas, but before the ship is secured in safety.
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Section 143 deals with the application of wages forfeited for desertion, which, subject to reimbursing the expenses of the ship, are to be paid into the Public Account. Under the Merchant Shipping Act these moneys are to be paid into the Consolidated Fund. The result appears to be that there are two bodies both entitled to claim the same fund, so that a compliance with either Act involves breach of the other. This difficulty may not arise in practice, as the same provision is found in section 135 of the New Zealand Act of 1877. Section 144 is in direct contradiction to Section 232, (3), of the Merchant Shipping Act. The latter Act lays it down expressly that where wages are forfeited in any case other than desertion, the forfeiture shall, in the absence of any specific provision to the contrary, be for the benefit of the master or owner by whom such wages are payable. The Bill provides that such wages are to be handed over to the superintendent at the first port of call after the forfeiture. The section creates a new discrepancy, as the section of the New Zealand Act of 1877 is in accord with the Merchant Shipping Act. Section 150 is a re-enactment of section 17 of the New Zealand Act of 1896, and considerably extends the principle of section 223, (a), of the Merchant Shipping Act (already contained in section 132, (4), of the present Bill), under which a seaman convicted for desertion or absence without leave may, if his presence is required by the ship, be conveyed on board notwithstanding his imprisonment. The section we are dealing with enables the Commissioner of Police to convey on board any seaman or apprentice engaged on any foreign going ship who has been committed to prison for any term not exceeding one month if the ship is about to leave New Zealand. The man must be put on board forty-eight hours before the vessel sails, and the ship is not to be detained. The master, however, is not only bound to receive him but he must also pay all the travelling and other expenses incurred in putting the man on board, and the ship cannot be cleared until the amount is paid. The section is no doubt framed for the purpose of preventing undesirable persons being left in the colony, but it casts an onerous duty upon the shipowner, and might, it is apprehended, tend to loosen the bonds of discipline on board ship, as no master could be expected to go to the trouble of getting a conviction against a seaman if he was to have, at the last moment, the man retained on board his ship at the ship's expense. The section, however, only applies in the case of committal to prison for a term not exceeding one month on summary conviction, so that in the more serious cases it would not apply. Section 152 and following sections contain provisions relating to official log-books similar to those contained in the Merchant Shipping Act, but the provision contained in the Merchant Shipping Act (which was also in the New Zealand Act, 1877), making it obligatory to enter in the log within twenty-four hours of arrival of the ship at her final port of discharge any occurrence happening before arrival is omitted. (See Merchant Shipping Act, 239, (4), and 241, (2).) How far in such case the provision in the Merchant Shipping Act would still be applicable it is difficult to say, but probably it would not be enforced in New Zealand. This seems to be one of those cases where uniformity has been disregarded for no apparent reason. Section 153, (1), requires every stranding, fire, and the circumstances under which the same occurs to be entered in the official log, whereas the Merchant Shipping Act does not expressly do 60. Section 156, (4) and (5), requires the chief engineer on every steamship carrying two engineers or more to keep an engine-room log in which must be entered : (a) The particulars of all accidents to boilers and machinery ; (b) the particulars of all telegraph calls from the bridge ; (o) particulars of number of revolutions, pressure, consumption of fuel, speed; (d) particulars of examination of sea connections, propeller, &c, and repairs; (e) full particulars as to indicator cards. The penalty for default in keeping such log is £3 for each offence. Part 111. This part of the Act deals with passenger-steamers. The only point which calls for remark is that no definition is given of a passenger-steamer, and this part of the Act applies to every ship " entitled to carry passengers" and would apply to such ship whether actually engaged or not in carrying passengers and to sailing as well as steam vessels. Part IV. This part of the Bill, comprising sections 170 to 187, deals with the survey and equipment of steamships, and enacts with regard to all steamships provisions which under the Merchant Shipping Act only apply to passenger-ships. So far as the survey of ships is concerned the provisions appear at first sight extremely objectionable, as they require all steamships to which the Act applies to be surveyed at least once a year. The following provisos, however, to a large extent nullify the effect of the Act so far as steamships registered in the United Kingdom are concerned, viz. : Section 185, (1), exempts vessels possessing a certificate issued by the Imperial Board of Trade, which is still in force; section 185, (4), exempts all steamships which, trading outside intercolonial limits, are not required by the Merchant Shipping Act to have a certificate ; section 185, (5), empowers a surveyor to dispense with a survey in the case of steamships whose certificate has expired before the termination of the voyage. The result is that no British steamship trading outside intercolonial limits need have a certificate of survey other than that required by the Merchant Shipping Act of passenger-vessels, except in the one case of such certificate having expired and the surveyor not being satisfied as to the vessel's seaworthiness. Having regard, however, to the fact that the surveyor would be in any case justified in detaining the ship for unseaworthiness, this provision is not of very great importance. Section 185, (3), however, contains a clause to the effect that "every such certificate " shall be subject to the provisions of the Act. What provisions of the Act would affect the certificate is somewhat uncertain. Section 179, enabling the Minister in certain cases to cancel the certificate; section 182, relating to offences in connection with certificates; and section
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183, dealing with carrying passengers in excess of the number specified in the certificate, would most probably apply. Section 178, dealing with the duration of certificates, would probably not apply, as it would be repugnant to the idea of section 185, (4), above referred to. Parts V. and VI. do not call for remark. Part VII. Section 195, which corresponds to section 425 of the Merchant Shipping Act (substituting the name of the Minister for that of the Board of Trade), requires the master of a vessel to report accidents to the Minister. Under the Merchant Shipping Act such accidents are to be reported in the case of accidents causing (a) loss of life or serious injury to person on board ; (b) any damage to the vessel or her machinery affecting its seaworthiness and efficiency. The Bill requires, in addition to the above, a report in all cases where a vessel has been in collision with another, whether damage is caused or not. The section is declared to apply to all " British ships." This, however, must be read with some limitation, and no doubt means all British ships trading-with New Zealand as in the preface. The joint effect of this section and section 425 of the Merchant Shipping Act is that in cases (a) and (b) the owner or master has to give two notices, one in compliance with the Merchant Shipping Act and the other in compliance with the Bill, wherever the accident occurs, and apparently whether on the voyage to or from New Zealand. It would be extremely inconvenient if other colonies were to follow the example of New Zealand and require similar reports, as the master would have to send in several different reports in respect of the same casualty. The penalty for non-compliance with the section is £50. Section 209 is, substituting New Zealand for the United Kingdom, identical with section 440 of the Merchant Shipping Act. It deals with the marking of the load-line and provides that, in the case of any ship proceeding on a voyage for which the owner is required to enter her outwards, the disc must be marked before entry, and the section proceeds to say that when a ship to which the section applies has been marked with a disc indicating her load-line, she shall be kept so marked until her return to New Zealand. Having regard to the similar provision in the Merchant Shipping Act, the joint effect of the two Acts will appear to be that, in certain circumstances, the load-line of a ship cannot be altered in New Zealand without infringing the Merchant Shipping Act nor in the United Kingdom without infringing the provisions of the Bill. Section 214 authorises the Minister by notice in the Gazette to declare that any particular goods are or not dangerous. Now, there are certain goods which, under the Merchant Shipping Act, are declared to be dangerous, and the section apparently puts it in the power of the Minister to legalise the carriage of goods declared by the Imperial Act to be dangerous. Section 217, on the other hand, makes it illegal for passenger-steamers to carry explosives, which is not forbidden under the Imperial Act. Section 226, (1), gives power to detain unseaworthy ships (inter alia) " in the case of a steamship by reason of having insufficient coal or other fuel on board for the intended voyage when proceeding at ordinary full speed." The provison is a new one, and not contained in existing Acts, and the expression " the intended voyage " is ambiguous. In many cases a vessel may intend to coal at an intermediate port, but if " the intended voyage" is to mean the voyage to the ultimate port of discharge of the vessel, every vessel leaving New Zealand would be bound to carry sufficient coal for the whole of that voyage, irrespective of the number of ports of call at which coal may be obtainable. Section 232, re-enacting section 228 of the New Zealand Shipping Act, 1877, gives to the Governor in Council wide powers to make regulations for (a) overloading of sail or steamships ; (b) overcrowding of sailing-ships with passengers; and (c) generally regulating all matters relating to protection of life and property on passenger sailing-ships. Having regard to the application of the load-line provisions to New Zealand further provisions as to overloading seem superfluous, and it is not made clear whether such regulations can be used to impose further obligations on the shipowner in addition to his other statutory duties in regard to load-lines. If they can be so used, the section is a very onerous one, and is in conflict with the Merchant Shipping Act. Part VIII. This part deals with shipping inquiries and courts. The Merchant Shipping Act (section 478) provides that the Legislature of any British Possession may authorise any tribunal to investigate shipping casualties and charges of misconduct, and to deal with certificates in certain cases. Part VIII. provides such a tribunal for New Zealand. The Bill provides for three kinds of inquiry : (a) Preliminary inquiry by the Collector of Customs (section 234); (b) formal investigation (section 235); (c) inquiry directed by the Minister in certain cases (section 239). The jurisdiction of (a) and (b) are limited to cases in which a shipping casualty is deemed to have occurred as defined by section 233, and the jurisdiction of all inquiries is limited (in accordance with section 478, (3) and (4), of the Merchant Shipping Act) by section 245, which provides that no inquiry shall be held in any matter which has once been the subject of investigation or inquiry, and has been reported on by a competent court or tribunal in any part of His Majesty's dominions, or in respect of which the certificate of a master, mate, or engineer has been cancelled or suspended by a naval ocurt, or with reference to any matter to which an investigation or inquiry has been commenced in the United Kingdom. Under section 233 a shipping casualty is deemed to have occurred in the case where any ship has been in collision with another near the coast of New Zealand, irrespective of whether damage has been sustained or not. This is not so under section 464 of the Merchant Shipping Act. A formal investigation is the usual mode of inquiry under the Bill, and is held on the application of the person authorised to make a preliminary inquiry, which he may make in any case where he
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judges it expedient, and must make if so directed by the Minister. A Court of investigation is composed of a Magistrate or two Justices sitting as a Court of summary jurisdiction, with the Assessors. As, under the Merchant Shipping Act, the Assessors form part of the Court, and must either sign the report or state in writing their reason for dissent (section 235, (8). A Court of investigation has power to deal with certificates, and exercises those powers in the same manner as a Court of investigation in the United Kingdom (section 238, (1), (b) ), but it cannot suspend or cancel a certificate, unless at least one out of the two Assessors concurs in the finding of the Court. In addition, however, to Courts of formal investigation, the following authorities or tribunals are authorised under the provisions of the Bill to suspend or cancel certificates in the following cases: (1.) The Governor, if it is shown that the holder is convicted of any offence (section 238, (1), (a)), following section 244 of New Zealand Act, 1877. (2.) A Court of summary jurisdiction holding an inquiry under this Act into the conduct of a certificated officer, if it finds that he is incompetent, or has been guilty of any gross act of misconduct, drunkenness, or tyranny, or that he has failed to render such assistance to any ship in distress, or in case of collision to give such information as he is required by the Act (section 238, (1), (c)). (3.) The Supreme Court, when under the powers given bv the Bill the holder of the certificate is superseded or removed by the Court (section 238, (1), (d)). The authority of the colonial Courts to make inquiries and to deal with officers' certificates arises as above mentioned under section 478 of the Merchant Shipping Act. Under that section it will be noticed only a court or other tribunal is authorised to deal with certificates, and then only in certain cases after inquiry held as directed' by the colonial Act. It is, therefore, difficult to see how any colonial Legislature can validly empower the Governor of the colony, as section 238, (1), (a) purports to do, without Imperial sanction, to deal with certificates granted under the Imperial Act, and such provision is probably ultra vires. The Court of summary jurisdiction authorised under section 238, (1), (c), to deal with certificates is, broadly speaking, in accordance with section 478 of the Merchant Shipping Act, but it is to be noticed that the Merchant Shipping Act only authorises colonial courts to make inquiries and deal with certificates where a shipping casualty as defined by that Act occurs. Under the Bill, however, a Court of summary jurisdiction is apparently authorised to inquire into cases of misconduct, whether such misconduct has resulted in a shipping casualty or not. Under section 240 of the Bill the Supreme Court is authorised to remove the master of any ship within the jurisdiction of the court, if such removal is necessary. Unless the Supreme Court has an admiralty jurisdiction this is hardly in accordance with the Merchant Shipping Act, section 472 of which confers such powers only ou the Court of Admiralty in British possessions. Clause 238, (1), (d), moreover, which empowers the Supreme Court in cases where it exercises its power of removal of the master to cancel or suspend would appear to be plainly ultra vires, because, as has been before pointed out, only the court holding the inquiry under section 478 of the Merchant Shipping Act can validly deal with an officer's certificate, and the Supreme Court is not, in removing the master, holding such inquiry under that section, and does not therefore appear to be within the authority provided by the Merchant Shipping Act. Section 242, empowering the Governor to reissue the certificate of any officer which has been cancelled or suspended, is also of questionable validity. If the certificate has been validly suspended or cancelled in accordance with the authority of the Imperial Act, it would appear that it is only by similar authority that such certificate can be reissued. The Merchant Shipping Act contains no such enabling power. Section 243 provides that the Minister may order in certain cases a rehearing of the inquiry. This, substituting the Minister for the Board of Trade, is identical with section 475, (1), of the Merchant Shipping Act. But it is to be observed that under section 478, (6), of the Merchant Shipping Act the Board of Trade has power to order the rehearing of a colonial inquiry. It would therefore appear that either the Governor or the Board of Trade may order such a rehearing. Of course the right of appeal to the High Court of Justice in England, given by section 478, (6), of the Merchant Shipping Act, is not affected by the Bill. Parts IX. and X. do not call for remark. Part XI. This part deals with the liability of shipowners. Clauses 293 and 300 contain probably the most important provisions in the Bill from the point of view of the British shipowner, introducing as they do provisions very similar to those contained in the Harter Act of the United States of America.
New Zealand Act. Harter Act. Section 293.—1f the owner of any ship Section 3.—That if the owner of any vessel transporting merchandise or property to or from transporting merchandise or property to or from any port in New Zealand exercises due diligence any port in the United States of America shall to make the ship in all respects seaworthy and exercise due diligence to make the said vessel in properly manned, equipped and supplied, neither all respects seaworthy and properly manned, the ship, her owners, charterers, or agent shall equipped, and supplied., neither the vessel, her become or be held responsible for damage or loss owner or owners, agent or charterers shall beresulting from faults or errors in navigation, or come or be held responsible for damage or loss in the management of the ship, nor shall the resulting from faults or errors in navigation or in ship, her owners, charterers, agent, or master be the management of the said vessel, nor shall the held liable for losses arising from dangers of the vessel, her owner or owners, charterers, agent, sea or other navigable waters, acts of God, or or master be held liable for losses arising from public enemies, or the inherent defect, quality or dangers of the sea or other navigable waters, vice of the thing carried, or from insufficiency of acts of God, or public enemies, or the inherent package, or seizure under legal process, or for defect, quality, or vice of the thing carried, or
Haetbb Act. Section 3. —That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of the said vessel, nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or
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loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life, or property at sea, or from any other deviation in rendering such service. Section 300.—(1.) Where any bill of lading or shipping document contains : — (a.) Any clause, covenant, or agreement whereby the manager, agent, master, or owner of any ship, or the ship itself, shall be relieved from liability for loss or damage arising from the harmful or improper condition of the ship's hold, negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge : or (&.) Any covenant or agreement whereby the obligations of the owners of the ship to excercise due diligence to properly equip, man, provision, and outfit the ship to make the hold of the ship fit and safe for the reception of cargo, and to make her seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo, and to care for and properly deliver the same are in any wise lessened or avoided, " such clause, covenant, or agreement " shall be null and void and of no effect, unless the court before which any question relating thereto is tried shall adjudge the same to be just and reasonable. (2.) This section shall not apply to the transportation of live animals.
from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service. Section I.—That it shall not be lawful for the manager, agent, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement, whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect. Section 2.—That it shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of the said vessel to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants, to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided,
From the above it will be seen that though the clauses of both Acts are generally similar, yet there are some differences of varing importance. (a.) Under the Bill the insertion in the bill of lading or other shipping document of any provisions at which the section is aimed is void. Under the Harter Act it is illegal, and in certain circumstances subject to a severe penalty. (b.) The following are prohibited by the Bill, though not by the Harter Act, viz. : Exemptions from liability for damage, &c, arising from the harmful or improper conditions of the ship's hold. The distinction does not appear to be of importance, as such a case would, in our opinion, be covered by the general word " unseaworthiness." (c.) The Bill makes it possible to insert in bills of lading any condition which a Judge before whom the question is tried may consider reasonable. This provision in one sense makes the Bill somewhat less stringent than the Harter Act inasmuch as clauses which are illegal by the Harter Act may be declared reasonable and therefore valid under the Bill. At the same time the Harter Act is definite in its provisions and shipowners and merchants know the extent of their rights and obligations under it. Under the Bill it would be impossible to know the precise value of any shipping document until it has been the subject of a legal decision, and this would undoubtedly lead to considerable uncertainty and confusion, besides increasing, apparently unnecessarily, litigation. In addition, the effect of the section is to turn Courts of justice, for the purposes of the section, into the position of a law-making instead of a law-interpreting body, an idea which has always been repugnant to British ideas of judicial functions. Apart, however, from the effect of the provisions of the section, the most important and serious question arises as to their conflict with the ordinary principles of English law, and also as to their legality from the point of view of " The Colonial Laws Validity Act, 1865 ". The difficulty also of deciding which law is to govern the contract may be very great. The courts of this country generally assume that where a contract is made abroad the parties to the contract intended, in the absence of anything to the contrary, the law of the place where the contract was made to apply. If this rule is followed out, the result would be that in contracts made in England the English law would apply, and the New Zealand Courts would have to decide questions arising there in accordance with English and not New Zealand law, while on the other hand the English courts would apply the New Zealand law in respect of contracts made in New Zealand. The question, however, is not likely to be solved in such a simple way, as undoubtedly the New Zealand courts would endeavour, as the Bill purports to authorise them to do, to enforce their own law in all cases, and it would not be until the matter was before the Privy Council on appeal that the question would be settled,
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There are many cases also where it may be almost impossible to say where the contract is made; as, for example, where the shipowner lives in the United Kingdom and the merchant resides in the colony, the contract being contained in correspondence passing between the two. In such a case the courts of the United Kingdom and of the colony would each seek to enforce their own law, and such a want of uniformity could only tend to confusion. The same degree of confusion is not created by the Harter Act, because under that Act it is made illegal to sign in the United States of America a bill of lading or shippng document which does not comply with the Act, and almost all bills of lading for voyages from the United States of America therefore incorporate the Harter Act The outward bills of lading do not, it is true, but in such cases questions arising in relation to the contract of carriage would be more often decided in the United States of America, where in all cases the Harter Act is applied. As to whether, however, the section is void under " The Colonial Laws Validity Act, 1865," is questionable. The following is the section of that Act dealing with the matter : " Section 2. Any colonial law which is, or shall be, in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation, made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, order, or regulation, shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. Now the freedom of contract which exists in this country under which any condition, however apparently unreasonable, can be inserted into bills of lading does not exist by virtue of the Merchant Shipping Act, but is part of the ordinary principles of English common law, and it is more than doubtful whether the section, which refers, it will be noted, only to Acts of Parliament or regulations made thereunder would apply. Section 302. —The Merchant Shipping Act provides a novel method of founding jurisdiction in the colony, and apparently applies even though the cause of action did not arise in the colony and the ship is no longer there. The section imposes severe obligations on the agents of the ship, and we have thought it worth while to set out the section in extenso : — Section 302.—(1.) The agents in New Zealand of any ship not registered in New Zealand shall be deemed to be the legal representatives of the master and owner of the ship after the departure of the ship from the port at which she was discharged for the purpose of receiving and paying claims for short delivery or pillage of cargo, and the amount of any such claim may be recovered from such agents in any court of competent jurisdiction. Provided that it shall be lawful for such agents, by notice in writing delivered to the Collector not later than twenty-four hours before the departure of any ship, to decline to accept any responsibility under this section in respect of that ship, in which case the master and some other person approved by the Collector shall, before the ship is allowed her clearance, enter into a joint and several bond in a sum not exceeding the value of her cargo, as shown by the ship's papers, for the payment of any sum which, together with costs, may be recovered against the agents of such ship. (2.) No proceedings for the recovery of any claim under this section shall be taken unless notice of the claim is given to the agents not later than fourteen days after the delivery of the cargo in respect of which claim is made. Section 303 provides that every bill of lading issued by the manager, agent, master, or owner of a ship, and signed by any person purporting to be authorised to sign the same, shall be binding upon the master and owner of the ship as if the bill of lading has been signed by the master. Under section 3 of " The Bill of Lading Act, 1855," the bill of lading is conclusive evidence against the master or person signing the same in respect of the statement of quantity contained therein, but the owner is not as a rule conclusively bound by the statement in the bill of lading and in the absence of agreement to the contrary is entitled to dispute its accuracy. The section 303 provides that the owner and master in the events mentioned are to be put in the same position as if the bill of lading had been signed by the master, and the joint effect of the two sections would appear to be that where a bill of lading is signed by a person other than the master purporting to be authorised to sign, the person signing the same and the master are conclusively bound, but the owner is not, and where such bill of lading is signed by the master he alone is conclusively bound. THE SHIPPING AND SEAMEN BILL (1903) OP NEW ZEALAND—APPENDICES REFERRED TO IN THE REPORT. Appendix A. Part I. Comprises sections 5 to 20, and provides for the appointment of a Minister of Marine and deals with the constitution and general management of the Marine Department. This part of the Bill re-enacts in substance sections 6 to 15 of " The New Zealand Shipping and Seamen's Act, 1877." Under the Bill, as under that Act, the Minister of Marine is appointed by the Governor, and the Minister himself appoints and controls all other officers employed in carrying the Act into effect, and make rules for enforcing its provisions. A Secretary of the Department also may be appointed by the Governor. This part of the Bill also provides for the appointment of Inspectors and Surveyors, with wide powers, almost identical with those conferred by sections 725 to 729 of the Imperial Merchant Shipping Act. Part 11. Comprises sections 21 to 167, and corresponds to Part 2 of the Imperial Merchant Shipping Act, and deals with the engagements and employment of masters, engineers, and seamen, their rights, duties, and obligations.
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This part of the Bill follows closely the lines of the Merchant Shipping Act. Sections 21 to 32 relate to the granting of certificates to masters, officers, and engineers. Sections 33 to 37 relate to apprenticeship to sea service, and do not call for remark. Sections 38 to 50 relate to the engagement of seamen, which, subject to the remarks contained in the above report, follow very closely the corresponding provisions of the Merchant Shipping Act. Sections 51 and 52 deal with the rating of seamen. Of these :— Section 51, subsection (1), requires service for four years at sea before the mast or as an apprentice as a qualification for the rating of A.8., subject to the proviso that service in decked fishing vessels or cutters shall only count as sea service for-three years of the employment. Subsection (2) enables any seaman to be rated an A.B. for the purpose only of serving on a steamship engaged in the home trade, who has served as an ordinary seaman on any vessel, or as an apprentice in a square-rigged sailing-vessel for a period of two years, but the nature of his rating must be entered on his discharge. By subsection (3), where the service has been on a steamship only, the discharge must be so indorsed. By subsection (4) the service may in all cases be proved by a certificate of discharge or by a certificate of service from the superintendent stating the nature of the service. Subsection (5) provides that a seaman who is carried as part of the required complement of a vessel under section 54, (1), and Schedule 111. of the Bill, must not, except in the case of emergency, be employed in any capacity other than that for which he was engaged, provided that where one or more boilers on a steamship are not in use a proportionate part of the greasers, firemen, and trimmers may be employed in another capacity in the same department. Section 52, subsection (1), provides that every seaman signing articles must produce a discharge in respect of the capacity in which he wishes to engage, or furnish proof that he is entitled to ship in such capacity. The superintendent may, however, on proof by the sailor by statutory declaration that he is entitled to ship in any capacity, allow him to do so. A false declaration renders the seaman liable to imprisonment for three months. Subsection (2) provides that when any seaman has signed articles he is to hand his discharge for his last ship to the superintendent, who is to cancel the discharge and stamp the word reengaged over the name of such ship Subsections (4) and (5) are dealt with in the report. Section 53 deals with the rating of greasers and firemen. The qualification for rating as a greaser is service of three months as a fireman in a steamship engaged in the home or foreign trade, or three months in a similar capacity on land. The qualification for rating as a fireman is service of three months as trimmer in a steamship plying within restricted limits, or three months on land as engine-driver or fireman. The penalty for giving a discharge as fireman or greaser to any person who has not served in that capacity is, as in the case of an A.8., £50. Section 54 relates to the complement of the crew, and is dealt with in the report. Sections 55 to 57 relate to the discharge of seamen, and are, subject to the observations in the report, in accordance with the Merchant Shipping Act. Sections 58 to 67 relate, to the payment of wages. These sections, generally speaking, are identical with sections 131 to 139 of the Merchant Shipping Act. Observations on section 63 will be found in the report. Sections 68 to 71 deal with advance and allotment of wages, and correspond to sections 140 to 144 of the Merchant Shipping Act. Sections 72 to 74 provides for seamen's money-orders. Section 73 provides for payment of orders not in payee's possession, and section 74 deals with the fraudulent issue of money-orders. Sections 75 to 83 deal with the rights of seamen in respect of wages. Full observations on section 75 will be found in the report. Trie other sections correspond with sections 155 to 163 of the Merchant Shipping Act. Section 79 is noted in the report. Sections 84 to 87 deal with the mode of recovering wages, and are in accord with sections 164 to 168 of the Merchant Shipping Act. Section 88 deals with the power of the court to rescind contracts between the owner and any seaman or apprentice in any proceeding arising out of any dispute incidental to their relations. Sections 89 to 100 relate to property of deceased seamen, and are generally in accord with the Merchant Shipping Act. It is to be noticed that sections 89, 90, 91, and 92 apply to the death of a seaman on a voyage which is to terminate in New Zealand. Section 94, dealing with the mode of recovery of wages, is applicable to all voyages. Sections 101 and 102 deal with re iinbursement of relief to seamen's families, and are identical with sections 182 and 183 of the Merchant Shipping Act. Sections 103 to 107 deal with leaving seamen abroad, and follow sections 186 to 189 of the Merchant Shipping Act. Sections 103 and 106 apply, it will be noticed, only to ships registered in New Zealand. Other ships would, however, come within the similar provisions of the Merchant Shipping Act. Section 108 deals with distressed seamen abroad and provides a machinery for recovering sums expended or incurred by or on behalf of the Crown in maintenance, &c, "or otherwise in accordance with this Act," which under the Bill are to be a charge on the ship and may be recoverable as a debt due from the owner or master of a ship by ordinary process of law or in the same manner as wages are recovered by seamen. The section corresponds to section 193 of the Merchant Shipping Act, which provides a remedy for the recovery of such expenses, but it is somewhat curious that the provisions of sections 190 to 192, which provide the right to recover in respect of the relief and maintenance of distressed seamen, are not included in the Bill, and there is not in the Bill itself any provision entitling distressed seamen, as such, to maintenance and passage
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home as under the Merchant Shipping Act. In certain cases no doubt sections 75 and 119 would apply, but not in most. It is, therefore, questionable whether section 193 would apply to any expenses not incurred under sections 75, 103, or 119 of the Bill, as they would not be incurred "in accordance with this Act." The point is not of real importance, as no doubt any sums so expended could be recovered under the provisions of the Merchant Shipping Act. Sections 110 to 122 relate to provisions, health, and accommodation of seamen. Section 110 deals with complaints by the crew, and is similar to the Merchant Shipping Act. Sections 111 and 112 are dealt with in the report, but except as there mentioned are in accord with the Merchant Shipping Act. Section 114 empowers the Governor to appoint medical inspectors. Section 115 provides for the examination of all seamen applying in New Zealand for employment, by a medical inspector. Section 116 provides for the inspection of provisions. Sections 117 and 118 provide for the expenses of medical examination and burial of injured seamen. Section 119 is dealt with in the report. Section 120 requires a medical officer to be carried on certain ships. Section 121 provides provision to be made in Home trade or intercolonial steamships for (a) adequate ventilation of officers' rooms, engine-room, and stokehold; (b) a separate room for each mate and engineer up to three, which does not open direct from the engine-room, but has a separate entrance to the deck. Section 122 deals with accommodation of seamen, and is dealt with in the report. Section 123 provides facilities for making complaint, and follows section 211 of the Merchant Shipping Act. Sections 124 to 129 relate to deaths and accidents occurring at sea, and are identical with section 690 and sections 212 to 218 of the Merchant Shipping Act. Sections 130 to 150 contain provisions as to discipline and the punishment of offences, and are dealt with in the report and Appendix B. The only clauses not dealt with above calling for remark are : — Section 131, which makes assaults by officers on seamen punishable by a fine not exceeding £20, or six months' imprisonment; and section 133, which enables the owner or agent of a vessel in New Zealand, where, owing to the departure or impending departure of a ship, the master cannot attend to prosecute the deserter, to do so himself. Neither of the above clauses are contained in the Merchant Shipping Act. Section 136 is the same as section 226 of the Merchant Shipping Act, and provides that summary remedies are not to affect other remedies. The clause, however—unlike the Merchant Shipping Act—is not to apply " where any fine has been imposed." Section 137 provides that the wages of a seaman imprisoned under the foregoing sections are to be paid up to the date of arrest. Sections 138 to 149 correspond to sections 227 to 237 of the Merchant Shipping Act. Sections 143, 144, and 150 are noted above. Section 151 deals with change of master, and follows section 258 of the Merchant Shipping Act. Sections 152 to 156 deal with official logs, and do not call for further remark. Sections 157 to 159 deal with mercantile marine offices. Section 160 relates to registration of seamen. Sections 166 and 167 relate solely to pleasure yachts, missionary ships, and fishing-boats. Part 111. This part comprises sections 168 and 169, and contains regulations for the conduct of passengers. The sections conform generally with the Merchant Shipping Act, and do not call for remark. Part IV. Comprising sections 170 to 187, deals with steamships. Section 170 relates to the building of steamships, and requires every steamship built of iron (except tugs) to be divided by transverse water-tight partitions, so that the forepart and afterpart of the ship shall be respectively separated from the engine-room by one of these partitions, and every steamship to have a watertight compartment enclosing the after-extremity of the shaft. This section relates to all ships, and not only ships built or registered in New Zealand. The Act does not state that no ship can proceed to sea in the event of non-compliance with the section, but possibly she could be stopped as being unseaworthy, and no doubt in civil actions evidence of non-compliance with the Act would be accepted as strong evidence of unseaworthiness. Sections 171 to 186 relate to the survey of steamships, and are dealt with in the report. Section 187 relates to the equipment of steamships : (a) Every steamship is obliged to have a properly constructed safety-valve ; (b) every sea-going steamship is to be provided with a fire hose; (c) every Home trade steamship must be provided with a shelter-deck for passengers. The. penalty for non-compliance with the above is £100 in the case of the owner, and £50 in the case of the master. The above requirements of the Bill relate to steamships generally, whereas the corresponding sections of the Merchant Shipping Act, 285 and 286, relate only to passengersteamers. Under section 432, (1), of the Merchant Shipping Act, however, every British sea-going steamship is bound to carry a fire-hose capable of being connected with the engines of the ship.
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Part V. Comprising sections 188 and 189, deals only with ships propelled by other power than steam, and restricted-limit steamers. ■ ■ • Part VI. Comprises only section 190, and deals with the appointment and licensing of colonial pilots. Part VII. Comprising sections 191 to 232, deals with safety. Sections 191 to 194 deal with prevention of collisions, and do not call for remark. Sections 195 to 196 deal with reports of accidents and loss of ships, and are referred to in the report. Sections 197 to 200 deal with life-saving appliances. Section 201 deals with the adjustment of compasses of every sea-going ship. This, it will be noticed, is only required by the Merchant Shipping Act in the case of steamships employed to carry passengers (section 432). Section 202 deals with boat drill, and is obligatory only on crews of intercolonial and Home trade ships. Section. 203 deals with signals of distress, and is almost identical with section 434 of the Merchant Shipping Act. Section 204 deals with the testing of cables and anchors in accordance with the Imperial Act, " The Anchors and Chains Cables Act, 1899." Sections 205 to 213 contain provisions as to load-line, which are, broadly speaking, in accord with the similar sections of the Merchant Shipping Act (sections 436 to 445). Certain points are, however, dealt with in the report. Section 207, it will be noticed, contains the very proper and useful provision that all ships which have the disc marked in accordance with the requirements of the Imperial Board of Trade shall not require to be remarked under the provisions of the Bill. Section 212 provides for a very heavy penalty, which has no counterpart in the Merchant Shipping Act, in the case of any person infringing the provisions relating to entry, publication, and delivery of copy certificates and other particulars. Sections 214 to 218 relate to the carriage of dangerous goods, and are dealt with in the report. Section 219 relates to grain cargoes, and re-enacts in substance section 221 of the New Zealand Act of 1877. The section makes it illegal to carry grain cargoes otherwise than in bags, sacks, barrels, or other similar packages, thus prohibiting altogether the shipment of grain in bulk. The Governor, however, is authorised from time to time to make regulations respecting the loading of grain in bulk. Under the Merchant Shipping Act, it will be remembered, the shipment of grain in bulk is not prohibited altogether. The owner, however, is bound to take reasonable precautions to prevent it shifting, and on certain voyages certain precautions laid down in the Eighth Schedule to that Act must be taken. The definition of a grain cargo is the same as that in the Merchant Shipping Act—that is to say, a cargo of which the proportion consisting of grain is more than onethird of the registered tonnage of the ship. Section 220 enables the Governor to make regulations as to the loading and stowage of ballast in any British ship. The section does not state " the loading and stowage in New Zealand," though this is probably what is intended. The effect of the section may possibly be to establish something in the nature of a light load-line for ships loading ballast in New Zealand. Section 221 makes it illegal to ship wool, flax, tow, or skins out of New Zealand in such condition as to render them liable to spontaneous combustion. The breach of this section is constituted a crime. Sections 222 and 223 relate to deck-cargo. Section 222 provides that the space occupied by such cargo is liable to dues and corresponds to section 86 of the Merchant Shipping Act. Section 223 provides that no deck-cargo or live-stock on deck must be shipped without a permit. Sections 224 to 232 relate to unseaworthy ships, and are dealt with in the report. They reenact in substance sections 457 to 463 of the Merchant Shipping Act. Section 230, (7), it may, however, be noticed (following the New Zealand Act of 1877), provides that the costs of the survey therein mentioned shall be paid in the first instance by the master or the owner of the ship, though they may be recovered from the persons on whose demands the survey was held or deducted from their wages in the event of it being proved that the ship was seaworthy. Under the Merchant Shipping Act (section 463) such costs are to be paid in the first instance out of the Mercantile Marine Fund, and are to be repaid by the master or owner of the ship only in the event of unseaworthiness of the ship being proved. Part VIII.
Comprising sections 233 to 250, relates to shipping inquiries and courts. The subject is dealt with at length in the accompanying report.
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Part IX. Comprising sections 251 to 283, relates to wreck and salvage. Section 252 deals with the appointment of receivers. Sections 253 to 258 deal with the powers and*duties of receivers in the case of ships in distress on or near the coast. Sections 259 to 263 contain regulations for dealing with wreck. Section 264 relates to unclaimed wreck. Sections 266 to 269 provide for offences in respect of wrecks. Sections 270 and 271 relate to salvage. Sections 272 to 281 relate to procedure in salvage. Section 282 deals with the fees of receiver of wreck. Section 283 relates to duties on wreck. Generally speaking, the above provisions are all in accord with the provisions of the Merchant Shipping Act, dealing with the same subjects (sections 510 to 571), save that there are some subjects dealt with by the Imperial Act which the Bill does not touch upon. The procedure in respect of salvage claims is slightly different. Under the Merchant Shipping Act salvage claims may be dealt with summarily in the absence of consent (a) if the property salved is less than £1,000 in value; (b) if the claim does not exceed £300. Under the Bill all claims under £300 can be dealt with summarily, irrespective of the amount claimed, and if the sum in dispute does not exceed £100, there is no right of appeal. All claims not tried summarily are dealt with by the Supreme Court. Section 283 provides that all foreign wreck shall be subject to the same duty as if imported goods, and empowers the Minister to permit all goods saved to be forwarded to their original destination, subject to security for the protection of the revenue. Part X Comprising sections 284 to 292, deals with lighthouses and light dues. By the Bill (section 288) the superintendence and management of all lighthouses is in the hands of the Minister, who may erect, alter, and replace any lighthouses on the coast. Light dues are fixed, as under the existing law, by the Governor by Order in Council, limited to the scale fixed by the Thirteenth Schedule to the Bill, and are payable in respect of all ships arriving at and all ships leaving any port in the colony with certain unimportant exemptions. The following persons are liable to pay the dues (section 289) : (a.) The owner or master; or (b) such consignees or agents thereof as have paid or made themselves liable to pay, any other charge on account of the ship in the port of arrival or discharge. Light dues are recoverable by distress in addition to any other remedy provided by law. Part XI. Comprises sections 293 to 304, and, except as mentioned in the report, is in accord with the Merchant Shipping Act (sections 502 to 508). Part XII. Containing sections 305 to 325, deals with registration of shipping, and only affects vessels registered in New Zealand, and are not, therefore, the subject of remark. Part XIII. Containing sections 326 to 340, deals with legal proceedings. Under section 326 a " crime " is punishable by fine or not exceeding two years' imprisonment, or on summary conviction by a fine not exceeding £100 or imprisonment not exceeding eighteen months. Any offence punishable with imprisonment for any term not more than twelve months, or by fine not more than £100, is to be tried summarily. Section 332 defines the jurisdiction under the Act for the trial of offences. Section 333 gives jurisdiction over ships lying off the coast Section 334 gives jurisdiction over offenders found in New Zealand for offences wherever committed. Sections 335 and 336 contain provisions for enforcing the detention of a ship and the recovery of fines by distress. Sections 337 to 339 deal with evidence and service of documents. Section 340 deals with the application of fines. Part XIV. Contains miscellaneous provisions, and provides for the repeal of existing Acts. Section 343 is a new clause, and provides that all officers who take part in the navigation of any vessel propelled by sail or steam shall have access to the charts belonging to the ship in use during the voyage. Section 344 provides for the registration of the managing owner for the time being of every ship registered in New Zealand.
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Appendix B. (Sections 130 to 150). —Maximum Punishment.
(No. 26.) My Lord, — Downing Street, 24th March, 1905. In confirmation of my telegram of to-day's date. I have the honour to transmit to you, to be laid before your Ministers, one sealed and six plain copies of an Order in Council declaring His Majesty's assent to the reserved Bill of the Parliament of New Zealand shortly entitled " The Shipping and Seamen Act, 1903." 2. I addressed you fully concerning the Bill in my despatch No. 21 of the Bth instant. . I have, &c, ALFEBD LYTTELTON. Governor the Eight Hon. Lord Plunket, K.C.V.0., &c.
Offences. Merchant Shipping Act. Existing New Zealand Law. New Zealand Bill. 1. Desertion 2. Failure to join and absence without leave Forfeit all effects and wages, and, if abroad (a) all wages earned till return to United Kingdom ; (b) excess wages of substitute, and, except in United Kingdom, twelve weeks' imprisonment Forfeit two days' pay and, for every twenty-four hours absence (a) six days' pay ; or (b) expense of substitute, and, except in United Kingdom, imprisonment for ten weeks Imprisonment for four weeks and forfeit two days' pay Same as Merchant Shipping Act Ditto ... One months' imprisonment, or to forfeit all or any part of wages. (Master is responsible to superintendent for effects.) Forfeit two days' pay, or expense of substitute, and, in any case, fourteen days' imprison3. Disobedience ment. 4. Quitting ship after arrival but before placed in security 5. Continued disobedience and neglect of duty On high seas, fine of £20, or one month's imprisonment. After arrival, but before security, £2 fine, or two days' imprisonment and forfeit two days' pay. Same as Merchant Shipping Act. One month's pay Twelve weeks' imprisonment, and for every twentyfour hours' continuance — (a) six days' pay, or pense of substitute Twelve weeks' imprisonment Same as New Zealand Bill On high seas, fine of £50, or imprisonment for twelve weeks and expense of substitute, 6. Assaults on offiDitto ... On high seas, fine of £20, or six months' imprisonment. On high seas, twelve months' imprisonment. cers 7. Combining to disobey, &c. Twelve weeks' imprisonment On high seas, twelve months' imprisonment If ship secured in safety, twelve weeks' imprisonment or forfeit all wages Same as New Zealand Bill If ship secured in safety, one month's imprisonment, or forfeit one month's wages. 8. Damaging ship, stores, &c. Forfeit sum equal to loss and twelve weeks' imprisonment Reimbursement of loss Forfeit sum equal to loss, and twelve months' imprisonment. Reimbursement of loss. 9. Smuggling, causing loss to ship Reimbursement of loss
A.—la
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Enclosure. At the Court at Buckingham Palace, the 20th day of March, 1905. Present, the King's Most Excellent Majesty, Archbishop of Canterbury, Lord President, Lord Suffield, Sir William Walrond. Whekeas by an Act passed in the session held in the fifteenth and sixteenth years of Her late Majesty's reign, entitled " An Act to grant a Representative Constitution to the Colony of New Zealand," it is, amongst other things, declared that no Bill which shall be reserved for the signification of His Majesty's pleasure thereon shall have any force or authority within the Colony of New Zealand until the Governor of the said colony shall signify, either by speech or message to the Legislative Council and House of Representatives of the said colony, or by Proclamation, that such Bill has been laid before His Majesty in Council, and that His Majesty has been pleased to assent to the same : And whereas a certain Bill passed by the Legislative Council and House of Representatives of the said colony, entitled "An Act to consolidate and amend the Acts relating to Shipping and Seamen," was presented to the Governor of the said colony for His Majesty's assent: And whereas the said Bill was reserved by the said Governor for the signification of His Majesty's pleasure thereon : And whereas the said Bill so reserved as aforesaid has been laid before His Majesty in Council, and it is expedient that the said Bill should be assented to by His Majesty : Now, therefore, His Majesty, in pursuance of the said Act, and in exercise of the power thereby reserved to His Majesty as aforesaid, doth by this present Order, by and with the advice of His Majesty's Privy Council, declare His assent to the said Bill. A. W. Fitzroy.
(No. 22.) My Lord, — Downing Street, 15th March, 1905. With reference to my despatch No. 21 of the Bth instant, I have the honour to transmit to you, to be laid before your Ministers, copy of a note from the French Ambassador at this Court, on the subject of the New. Zealand reserved Bill shortly entitled " The Shipping and Seamen Act, 1903." 2. The desire of the colonial Government that the Anglo-French Declaration of the 23rd October, 1889, relative to the disposal of the proceeds of wrecks, should be made applicable to New Zealand, was intimated in Lord Onslow's despatch No. 26 of the 24th May, 1890. 3. If and when a Conference meets to consider the general subject of merchant shipping legislation the questions raised by the French Government will naturally come up for discussion then. Meanwhile, however, I shall be glad to receive any observations which your Ministers may wish to offer on M. Cambon's note. I have, &c, ALFBBD LYTTBLTON. Governor the Bight Hon. Lord Plunket, K.C.V.0., &c.
[Translation.] My Lord, — London, 29th December, 1904. The French Consul at Auckland has called the attention of the Government of the Republic to the provisions of a law concerning navigation passed last year by the Parliament of New Zealand, intituled " An Act to consolidate and amend the Acts relating to Shipping and Seamen," and which would be now submitted for the Royal assent. It seems in effect, and particularly in Part IX. of the Act in question, that the International Conventions which bear on these questions are not taken into account. However, the provisions of this new law should not be any hindrance to the application of the stipulations inserted in the International Conventions, and particularly in the declaration signed between France and England on the 23rd October, 1889, on the subject of salvage of ships wrecked on the coasts of both States, and which has been made applicable to New Zealand by a notification made by His Majesty's Ambassador at Paris on the Bth July, 1890. This declaration provides specifically that consuls are to have charge of all operations relative to the salvages of the ships of their nationality. But nowhere in Part IX. of the Shipping Act of 1903 is mention made of the rights of consuls. The same remark would also apply to the provisions contained in sections 21, 185, 213, 229 to 245, 246, 253, &c.; lastly, section 261 only recognises consuls as representing the owner or agents in that which concerns the keeping of articles saved from the cargo. My Government requests me to bring these matters under your Lordship's notice, to call attention to the consequences which could result from the various clauses of the above-mentioned Act, on account of the differences which they present with regard to the agreements which exist between our two countries, and which are of a nature to necessitate representations similar to those made by this Embassy with regard to the Australian Shipping Bill. I have, &c, His Lordship the Marquis of Lansdowne. Geoffray,
Authority : John Maokay, Government Printer. Wellington.—l9os.
Price, 9d.~\
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Bibliographic details
DESPATCHES FROM THE SECRETARY OF STATE FOR THE COLONIES RELATIVE TO "THE SHIPPING AND SEAMEN ACT, 1903.", Appendix to the Journals of the House of Representatives, 1905 Session I, A-01a
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26,841DESPATCHES FROM THE SECRETARY OF STATE FOR THE COLONIES RELATIVE TO "THE SHIPPING AND SEAMEN ACT, 1903." Appendix to the Journals of the House of Representatives, 1905 Session I, A-01a
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