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

Section 46 of the Navigation Act, relating to the agreement with the crew, provides, inter alia, that-

(3) The agreement shall be-

2. prepared in duplicate . . .
3. signed by the master and seamen in the presence of and attested by the superintendent;
4. signed by the master before being signed by any seaman;

(4) The superintendent shall retain one part of the agreement, and deliver the other part to the master.

The question has been raised as to whether, in cases where single seamen are engaged at a port other than that at which the agreement was originally opened, the master should be required to sign the new duplicate copy of the agreement then prepared.

I shall be glad to be advised on the point, also as to whether, if it is necessary that the master's signature shall be obtained on the duplicate copy before the seaman signs, the signature could be made by a duly authorised agent of the master. If so, will the Solicitor-General please advise as to a simple form of written authority to an agent to be signed by the master in such cases.

Since receiving the above memorandum, I have been verbally requested to advise whether, under section 61, the master is bound to attend personally before the superintendent when effecting the discharge of a seaman.

Sub-section (1) of section 46 provides that the master of a ship who engages any seaman in Australia shall enter into an agreement with him in the prescribed form in the presence of the superintendent.

The requirements of sub-section (3) of section 46 apply to any agreement under which a seaman is engaged under sub-section (1).

If the purpose of the 'new duplicate copy' is the engagement of a seaman, that agreement must be 'signed by the master and seamen in the presence of and attested by the superintendent'.

Under paragraph (e) of sub-section (3) of section 46, it is necessary that the master shall sign the agreement before it is signed by the seaman.

Where a person is required by statute to sign a document the document may be signed by a properly authorised agent of that person unless there is something in the statute to show that his personal signature is required.

Section 46 contemplates the presence, before the superintendent, of both parties to the agreement, and the signing of the agreement before the superintendent by whom it is then attested. I do not think that the specific requirements of section 46 can be validly observed by any arrangement whereby an agent is substituted for the master.

As regards section 61-the master is here required to sign and give to the seaman in the presence of the superintendent a discharge in the prescribed form. It appears that in this case also the presence of the parties before the superintendent is required for the purpose of the formal termination of the contract entered into under section 46. I see no authority for the master delegating to an agent his functions in relation to the discharge of a seaman.

It will be noted, however, that 'master' is defined (section 6) as any person having command or charge of a ship. It is, therefore, competent for the first mate or other officer having command, in the absence of the captain, to carry out the requirements of the sections above referred to.

[Vol. 19, p. 88]