The Comptroller-General of Customs has forwarded me the following memorandum for advice:

Section 67 of the Navigation Act provides that upon every discharge effected before a superintendent, the master shall make and sign, in the prescribed form, and forthwith deliver to the superintendent, a report of the conduct, character and qualifications of the seaman discharged.

The master of the s.s. Greledon, of London, recently declined to report upon the conduct of a seaman whom he discharged at a Commonwealth port.

It was claimed that the master's action was justified by reason of the fact that as the vessel was registered in the United Kingdom, and was not engaged on a voyage the port of clearance and port of destination of which were within the Commonwealth and was not engaging in the coasting trade, section 67 of the Navigation Act did not apply, the matter being governed by section 129 of the Merchant Shipping Act 1894, which gives the master the option of either reporting, or stating that he declined to give any opinion, upon the conduct, character or qualifications of the seaman discharged before a superintendent.

There is some doubt as to whether such is the case. The provisions of the Merchant Shipping Act bearing upon the matter are, so far as they are relevant, as follows:

Section 260 of the M.S. Act 1894 provides that Part II of that Act (which includes section 129 above-mentioned) shall, unless the context or subject-matter requires a different application, apply to all seagoing ships registered in the United Kingdom, and to the owners, masters and crews of such ships.

Section 265, dealing with conflict of laws, provides that where in any matter relating to a ship or to a person belonging to a ship, there appears to be a conflict of laws, then, if there is in Part II of that Act any provision on the subject which is expressly made to extend to that ship, the case shall be governed by that provision, but if there is no such provision, the case shall be governed by the laws of the port at which the ship is registered.

Sections 186-189, being portion of Part II of the M.S. Act 1894, originally dealt with the discharge of seamen from British ships at places out of the United Kingdom. These sections were, however, repealed by the M.S. Act of 1906 (section 85 and Schedule 11) and have been replaced by sections of that Act, of which section 31 provides that where the master of a British ship discharges a seaman at any place out of the United Kingdom, he shall give to that seaman a certificate of discharge in a form approved by the Board of Trade. This section, it will be noticed, does not specifically require that the seaman shall be discharged in the presence of a superintendent although as a matter of practice such is always done, as under the preceding section it is required that the master shall not discharge seamen at any place out of the United Kingdom unless he previously obtains, endorsed on the agreement with the crew, the sanction of the proper authority, which, in the case of a British possession, means the superintendent.

Although the M.S. Act of 1906 is to be construed as one with the Act of 1894 (section 86) none of its provisions are expressed as incorporated in Part II of the latter Act, and it appears to be doubtful whether the provisions of the Act of 1906, relating to the discharge of seamen at ports out of the United Kingdom, come within the scope of sections 260 and 265 of the Act of 1894, above referred to.

I shall be glad if the Solicitor-General will be good enough to advise in the matter as early as possible.

Section 61 of the Navigation Act provides that when a seaman is discharged from any ship (except a limited coast-trade ship of less than fifty tons gross registered tonnage or a river and bay ship) the master shall sign and give the seaman, in the presence of the superintendent, a discharge in the prescribed form.

Section 67 provides that upon every discharge effected before a superintendent the master shall make and sign in the prescribed form a report of the conduct character and qualifications of the seaman discharged.

In the instance referred to in the above memorandum compliance with section 67 was refused on the ground that the vessel in question was registered in the United Kingdom and was not engaged on a voyage between ports in the Commonwealth, and further that the matter was governed by section 129 of the Merchant Shipping Act 1894.

Section 129 is one of a group of sections headed 'Discharge of Seamen'. Section 127, the first of the group, provides that when a seaman serving in a British foreign-going ship, whether registered within or without the United Kingdom, is discharged in the United Kingdom he shall be discharged in the manner provided by this Act in the presence of a superintendent. The immediately following sections provide the manner of the discharge, including, unless the master objects, the furnishing of a report as to conduct, etc. (section 129). It appears that in order to ascertain the application of section 129 it must be read with the two immediately preceding sections and therefore section 129 applies only to cases in which a seaman is discharged in the United Kingdom.

Section 31 of the Merchant Shipping Act 1906 deals with the discharge of seamen at places out of the United Kingdom. It merely provides that the certificate shall be in a form approved by the Board of Trade, and is silent on the subject of reports as to conduct. The Act of 1906 does not expressly provide for its extension to the Dominions, and I see nothing in the British Act which renders section 67 of the Navigation Act invalid as applied to ships registered in the United Kingdom.

I am therefore of opinion that the contention of the master of the Greledon is without foundation and that he is bound to observe the requirements of section 67 of the Commonwealth Act.

[Vol, 18, p.416]