Opinion Number. 160



Key Legislation

SEAMEN ACT 1898 (N.S.W.) : MERCHANT SHIPPING ACT 1894 (IMP.), s. 238

The Prime Minister

The Prime Minister:

In this matter, in which an opinion was given on 8 September 1903(1), the papers are returned with an intimation that the Prime Minister desires to have my views on the additional point raised in the further letter from the Consul-General for France dated 23 September 1903.

  1. As regards the requirements of an information or complaint on oath, M. Biard d'Aunet contends that it raises a serious objection of principle; because it is the consular authority which is to take the oath, and where he intervenes officially, in virtue of the terms of an international convention, this formality should not be expected of him, seeing that a request, signed and officially sealed, should be considered as authentic and valid.
  2. As to this, it may be remarked in the first place that the sworn information (under the Merchant Shipping Act) need not be by the consular authority; it may be by any person cognisant of the facts. In the next place, it is not intended in any way to impugn the authenticity or authority of official documents; but where an Act of the Imperial Parliament requires a complaint on oath, official certificates of even the most authentic kind cannot be accepted as a substitute. On receipt of the consular request, the local executive is 'bound to give every assistance in its power'; but it is not bound to break the law.

  3. As regards the requirement of proof of desertion, M. Biard d'Aunet thinks this open to still more serious objection. He says:
  4. The local authority would reserve to itself the right of making an inquiry on the subject of the desertion, and consequently to decide whether the sailor will or will not be conducted back to his ship.

    This inquiry, and the decision which will be the consequence of it, constitute acts of jurisdiction; whereas it cannot be doubted that the intention of the High Contracting Parties, by concluding the Convention, was simply to place the territorial public force of the one at the disposal of the maritime jurisdiction of the other, to which the ship belongs.

    The Convention of 1854 intended, on this particular point, Xo fix the limit which divides the right of territorial jurisdiction which extends in certain cases to the foreign vessels in the ports, from the jurisdiction of the flag of the vessel which remains there of necessity, in other respects.

    I am unable either to appreciate the force of this objection, or to agree with the view expressed, as I understand it, as to the intentions of the High Contracting Parties.

    The obligation to take action only arises 'if a seaman deserts'. Before the authorities of a country can be expected to deliver up a person, enjoying the protection of its laws, to be forcibly conveyed out of the country, it is reasonable that they should satisfy themselves, by a proper judicial inquiry-at which the accused person may be heard in his defence-that desertion has taken place; and that the accused person is the deserter. As I understand M. Biard d'Aunet's contention, it is that the person charged should be arrested, placed on board, and carried out of the jurisdiction, on the mere application of the consular authority, without inquiry of any kind, without any opportunity of being heard in his own defence, or of obtaining a reversal of an order which may perhaps have been made in error. Such a proceeding would not only be a violation of section 238 of the Merchant Shipping Act, but would also be contrary to the principles of natural justice.

    When M. Biard d'Aunet says that the intention of the Convention was to place the territorial public force of one country at the disposal of the maritime jurisdiction of the other-and to fix the limit which separates the territorial jurisdiction from the jurisdiction of the flag of the vessel-I understand him to mean that the intention was to extend the jurisdiction of the flag, for the purposes of the Convention, to the territory of the country where the desertion takes place. I am aware of no authority for this interpretation, which seems to me to be at variance with the established principles of international law.

  5. M. Biard d'Aunet further contends that-
  6. The intervention of the captain of the vessel, not being mentioned in the said Convention, could not be obligatory. Those who drew up the Convention had to choose between two authorities to make the declaration of desertion, that of the captain or that of the consul. They chose that of the consul, whose demand should suffice to put the public force in movement.

    I agree with M. Biard d'Aunet that the intervention of the captain is not absolutely necessary; the sworn complaint, under the Merchant Shipping Act, may, as already stated, be made by any person cognisant of the facts. The New South Wales Act(2), which provides for a complaint by the captain, has a wider application than the Imperial Act, because it applies to all foreign countries, whether there is a convention or not; but where-as in the case of France-the Imperial Act applies, it is of course sufficient to comply with the requirements of the Imperial Act. I also agree that the demand of the consul is sufficient to 'put the public force in motion'-i.e. to do all that can be done consistently with the law; but it does not dispense with the necessity for complying with the requirements of the law before the arrest and delivery up of the accused person.

[Vol. 4, p. 53]

(1) Opinion No. 153..

(2) Foreign Seamen Act 1898 (N.S.W.).