Advanced search

The Merchant Shipping Act, 1876

THERE can be few Englishmen who are not aware that during several years past a very uneasy feeling has pervaded the British mind as regards the general status of our "Mercantile Marine," alike as regards the vessels of which it is com- posed and the seamen by whom they are worked. As regards the former, it was felt that there was no other guarantee of their seaworthiness than the honour and pecuniary interest of their owners, which latter was not unfrequently nullified, or even reversed, by over-insurance; whilst as regards the seamen, their reported gradual deterioration, both morally and physically, the utter want of sympathy and interest between them and their employers, and the increasing number of foreign seamen employed in our ships, had, not un- naturally, induced a rather general im- pression that, after all, the huge, and in many respects magnificent, machine was " rotten at the core," and that viewed as a reserve force, by which the backbone of our power, our war fleet, would be worked in the event of a naval war, its value would be almost nil.

Again, the continued frequent loss of trading and passenger ships, and the annual sacrifice of several hundred lives, had, from time to time, thoroughly awakened the public interest, and alarmed the national conscience, which found a voice in the person of Mr. SAMUEL .PLIMSOLL, M.P. for Derby; and spurred I into action, to a great extent, by his I zealous advocacy, a new Merchant Ship- ping Bill was prepared by the Government in 1869, and denominated " The Merchant Shipping Act, 1870." Opposing interests, however, and the press of other public business, led to its postponement, and the country had at last to be satisfied with the temporary intermediate Bill of 1873, entitled "The Merchant Shipping Acts Amendment Act," intended only to meet the more pressing requirements of the mercantile marine until the more com- prehensive Bill of 1870 could be again brought forward in Parliament.

j In our 91st number (February 1874) , we commented on. the several enaetmente of that Act, and need not therefore now refer i to them. Suffice it to say that the bulk of the great Merchant Shipping Act of 1854 remains intact, and, with the several amendments of 1855, 1856, 1862, 1870, j and the Merchant Shipping Acts Amend- ment Act, 1873, still constitutes the law of our mercantile marine. The Merchant Shipping Act, 1876, is but the crovming of the edifice, but it is a noble crown, ; devoted exclusively to the protection of human life, and displacing on Britannia's brow the -wreath of nightshade, the bane- ful influence of which had suppressed the | dictates of humanity and duty in her ; breast, and laid her open to the stigma, , that, as regarded her mercantile marine, i she was too much absorbed in the pursuit of gain to heed the widow's and orphan's wail or the mother's tears for her seamen sacrificed at the shrine of Mammon.

The enactments of the Merchant Ship- ping Act, 1876, are ranged under the following twelve heads:— 1. Preliminary.

2. Unseaworthy ships.

3. Foreign ships overloading.

4. Appeal on refusal of certain certificates to ships.

5. Scientific Referees.

6. Passenger Steamers and Emigrant Ships.

7. Grain Cargoes.

8. Deck Cargoes.

9. Deck and Load Lines.

10. Investigations into Shipping Casualties.

11. Miscellaneous.

12. Repeal.

We will remark on the above headings seriatim.

"Preliminary." The sections of this heading define the short title of the Act as " The Merchant Shipping Act, 1876 ; that it shall be con- strued as one with the Merchant Shipping Act, 1854, and the Acts amending the same; and that the whole may be cited collectively as ' The Merchant Shipping Acts, 1854 to 1876;' lastly, that the same shall come into operation on the 1st of October, 1876." " Unseaworthy Ships." Under this heading, Section 4 decrees that every person sending or attempting to send a British ship to sea in such an Unseaworthy state as to endanger the lives of those on board shall be guilty of a mis- demeanour, unless under reasonable and justifiable circumstances ; and that every master of a British ship who knowingly takes her to sea in such Unseaworthy state shall be likewise guilty of a mis- demeanour ; also that a prosecution under this section shall not be instituted except by or with the consent of the BOARD OP TEADE, or of the governor of the British possession in which such prosecution takes place; and that a misdemeanour under this section shall not be punishable upon summary conviction.

The value of this section cannot be over- estimated, since an unprincipled, reckless, or penurious shipowner can now no longer send to sea a well-insured unseaworthy ship, heedless of the loss of her crew, without being called to account for his inhumanity.

Section 5 enacts that in every contract for service, express or implied, between the owner of a ship and the master and any seaman, and in every instrument of apprenticeship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the part of the owner that he and his master, and every agent charged with loading his ship, or preparing her for sea, &c., shall use all reasonable means to insure her seaworthi- ness at the commencement of a voyage, and to keep her seaworthy during the same. We conceive this to be a most valuable enactment.

Section 6 gives power to the BOARD OF TRADE to provisionally detain, for the purpose of survey, any British ship, being in any port of the United Kingdom, if it has reason to believe, on complaint or otherwise, that, from any defect of hull, equipment, or machinery, or from over- loading or improper loading, she could not I proceed to sea without serious danger to human life.

In a series of sub-sections, into which this one is divided, it is enacted—that the Board may appoint a competent person or persons to survey such ship and report thereon; that the Board may then release such ship, or finally detain her, either absolutely or until the performance of such repairs or alterations, or the unlpad- ing and re-loading her cargo as the Board may think fit to require; that 'before the order for final detention is made a copy of the Report of Survey be served on the i master of the ship, and that within seven days of the date of such service the owner or master may appeal, in the prescribed manner, to the Court of Survey of the port or district where the ship is detained; that the BOARD OF TRADE may, if it think fit, at any time after the provisional de- tention, refer the matter to the said Court of Survey; that, if satisfied that a ship detained under the Act is not unsafe, the Board may, at any time, order her to be released, either upon or without any con- ditions; that the Board may, from time to time, appoint a sufficient number of competent persons as detaining officers, who shall be armed with the same autho- rity as the BOARD or TRADE to provisionally j detain ships for survey, and to appoint j surveyors, and to release ships so sur-veyed if satisfied of their safety, subject to i the requirement, that such officers shall j forthwith, report to the Board any order made by him for detention or release of a ship.

We will only remark on the above section and sub-sections, that their effec- tual working will entirely depend on the i position and character of the persons ap- j pointed as detaining officers, who, in addition to competency, must not simply be men of ordinary integrity, who would be above taking a bribe, either directly or i indirectly, but of too independent cha- racter and personal status to be readily influenced by any other motives than a determination to honestly perform the important duty entrusted to them.

Section 7 defines the constitution of Courts of Survey, which are to consist of a judge, sitting with two assessors. The judge to be summoned from a list of Wreck 'Commissioners appointed under this Act, stipendiary or metropolitan po- lice magistrates, judges of county courts, i or other fit persons, and in any special case in which the BOARD OF TRADE think ' it expedient to appoint a Wreck Commis-sioner, the judge to be such Commissioner.

The assessors to be persons of nautical, engineering, or other special skill and ex- perience: one to be appointed by the BOARD OF TRADE, either generally or in each case, and the other to be summoned, in accordance with the rules under this Act, by the Registrar of the Court, from a list of persons periodically nominated for the purpose by the local Marine Board of the port, or where there might be no such Board, by a body of local shipowners or merchants approved of by a Secretary of State, or in the absence of such list to be appointed by the judge.

The County Court Registrar, or such other fit person as a Secretary of State may from time to time appoint, shall be the Registrar of the Court, and shall, on receiving notice of an appeal, or a reference from the BOARD OF TRADE, immediately summon the Court in the prescribed manner to meet forthwith.

Section 8 makes the following pro- visions for the regulation and working of these most important courts:— (1) The case shall be heard in open court; (2) The judge and each assessor may survey the ship, and shall have for the purposes of this Act all the powers of an inspector appointed by the BOARD OF TRADE under the Merchant Shipping Act, 1854 ; (3) The judge may appoint any com- petent person or persons to survey the ship and report thereon to the Court; (4) The judge shall have the same power as the BOARD OF TRADE have to order the ship to be released or finally detained, but unless one of the assessors concurs in an order for the detention of the ship, the ship shall be released; (5) The owner and master of the ship, and any person appointed by the owner and master, and also any person ap- pointed by the BOARD OF TRADE, may attend at any inspection or survey made in pursuance of this section; (6) The judge shall send to the BOARD OF TRADE the prescribed report, and each assessor shall either sign the report, or report to the BOARD OF TRADE the reasons for his dissent.

Sections 10 and 11 define the liabilities of the BOARD OF TRADE and the shipowner for costs and damages. Of the former where the survey of a ship proves her seaworthiness, and that her provisional detention and survey was therefore un- called for, and of the latter when un- seaworthiness is proved. The BOARD OF TRADE in the one case paying the loss of the shipowner caused by the detention of his ship, and the owner in the other case paying to the BOARD OF TRADE the costs incidental to the detention and surrey of the ship.

Section 12 and five sub-sections con- stitute supplemental provisions relative to the detention of a ship, the fourth sub- section enacting that, " For the purposes of a survey of a ship under the Act, any person authorized to make the same may go on board the ship and inspect the same and every part thereof, and the machinery, equipments, and cargo, and may require the unloading or removal of any cargo, ballast, or tackle." " Foreign Ships, overloading." Under this heading, Section 13 makes the provisions of the Act with respect to the detention of ships applicable to all foreign vessels taking in cargo, or part cargo, at any port of the United Kingdom, which shall be considered unsafe from being overloaded, or improperly loaded, but subject to modifications contained in three sub-sections, viz.: " That a copy of the order for provisional detention shall be forthwith served on the nearest Con- sular officer for the State to which the ship belongs; that if the master or owner should require the same, the Board of Trade surveyor shall be accompanied by a person selected by the Consular officer, when, if both shall agree, the ship shall i be detained or released as the ease may J be; but if they differ, the BOARD OF TRADE ! may act as if the requisition had not been j made, in which case the master or owner ' will have the right of appeal to the local Court of Survey.  " When such appeal is made to the Court of Survey, the Consular officer, at the request of the master or owner, may j appoint any competent person as assessor | in the case in lieu of the assessor, who, if i the ship were a British ship, would be | appointed by the BOARD OF TRADE." j The above modifications in the case of j foreign vessels, appears to afford all the protection to their masters and owners that could be reasonably expected.

" Appeal on the Refusal of certain Certi- ficates to Ships." Section 14 and sub-sections grant to the owners of passenger steamers a right of appeal, in the prescribed manner, to a Court of Survey in the following cases of refusal of certificates required before such vessels can proceed to sea:— (1) The surveyor's certificate of fitness j and conformity with requirements of the BOARD OF TRADE (Section 309, Merchant Shipping Act, 1854), commonly called " the BOARD OF TRADE Certificate." (2) Certificate of clearance by an emi- gration officer as to seaworthiness, and as to the passengers and crew being in a fit state to proceed to sea.

(3) A surveyor's certificate that the ship is properly provided with lights and the means of making fog signals.

" Scientific References." Section 15 authorizes the BOARD OF TRADE, in cases involving questions of construction or design, or of scientific difficulty or important principle, to refer the matter to such one or more out of a list of scientific referees, from time to time approved by a Secretary of State, as may appear to possess the special qualifi- cations necessary for the particular case.

"Passenger Steamers and Emigrant Ships." Section 16 exempts steamers carrying less than twelve passengers from the special survey and BOARD OF TRADE Cer- tificates required by the Merchant Ship- ping Act, 1854.

Section 17 and sub-sections enact—that colonial certificates of survey, &c., of passenger ships, when to the same effect and equally efficient with those required by the Merchant Shipping Acts of the United Kingdom, may, either with or without modification, be declared by Her Majesty in Council to have the same force as if granted under the said Acts.

Section 18 provides for exemption of double survey of passenger steamers.

Section 19 exempts, at the discretion of the BOARD OF TRADE, foreign passenger and emigrant ships having foreign cer- tificates of survey from further survey, if the Board are satisfied that the require- ments of the Merchant Shipping Act, 1854, and Acts amending the same, have been substantially complied with: Pro- vided that Her Majesty may, by Order in Council, direct that this section shall not apply to cases of survey at foreign ports where corresponding provisions are not extended to British ships.

Section 21 is so important that we will give it in full, as follows:— Every sea-going passenger steamer, and every emigrant ship, shall be provided to the satisfac- tion of the BOARD OF TRADE— (1) With means for making the signals of distress at night specified in the First Schedule to the Merchant Shipping Act, 1873, or in any rules substituted therefor, including means of making names on the ship which are in- extinguishable in water, or such other means of making signals of distress as the BOARD OF TRADE may previously approve ; and (2) With a proper supply of lights inextinguish- able in water, and fitted for attachment to life-buoys. If any such steamer or ship goes to sea from any port of the United Kingdom without being so provided as re- quired by this section, for each default in any of the above requisites the owner shall, if he appears to be in fault, incur a penalty not exceeding one hundred pounds, and the master shall, if he appears to be in fault, incur a penalty not exceeding fifty pounds.

The urgent importance of the clauses under this heading will be felt when it is considered how vast a number of vessels have been lost during the night on our own coasts alone, too often with their entire crews; and that doubtless very many of the latter might have been saved by Life-boats, and other means, had their danger been made known to those on the land. No more striking case could be quoted in illustration of the same than the foundering of the emigrant ship North- fleet in 1873, near Dungeness, through being run down by the Spanish steamer Murillo, when nearly 400 unfortunate creatures—men, vomen and children— perished, within the reach of help both from the shore and surrounding vessels, solely owing to the want of an established and exclusive system of night signals of distress.

" Grain Cargoes." A very fruitful cause of the loss of vessels at sea has been the stowage of grain and other shifting cargoes in bulk; that is to say, loose, without any sufficient precautions to keep them from falling over to leeward. It needs not to be a sailor to understand whence the danger arises.

Such cargoes, and more especially if of a slippery nature, such as linseed, however completely a vessel's hold is filled, in- variably settle down into a smaller space from the motion of the vessel in a rough sea, and consequently there will then be an open space between the upper surface of the cargo and the under surface of the deck above.

It only then needs a few heavy lurches of the sea to cause a considerable portion of the grain, &c., to fall or slide over to the lee side of the ship when she will permanently heel over to that side, and every successive lee-lurch will increase the evil until a final lurch throws her on her beam-ends, and she founders with all on board. Yet all that is needed to make such cargoes as little dangerous as any other, is to stow them in bags, or else to fit in the hold a few upright stanchions, supporting longitudinal bulkheads, or shifting boards, forming so many sub- divisions, each confining the portion of the cargo stowed within it.

It is strange that so palpable a danger, so easily remedied, should have been allowed year after year to consign many poor seamen to a watery grave without any legislative attempt to save them.

The single section under this heading (Section 22) will now effectually meet the evil. We give it entire:— No cargo of which more than one-third consists of any kind of grain, corn, rice, paddy, pulse, seeds, nuts, or nut kernels, hereinafter referred to as " grain cargo," shall be carried on board any British ship, unless such grain cargo be contained in bags, sacks, or barrels, or secured from shifting by boards, bulkheads, or otherwise.

If the managing owner or master of any British ship, or any agent of such owner who is charged with the loading of the ship, or the send-ing her to sea, knowingly allows any grain cargo, or part of a grain cargo to be shipped therein for carriage contrary to the provisions of this section, he shall for every such offence incur a penalty not exceeding three hundred pounds, to be re- covered upon summary conviction.

If Mr. PLIMSOLL had done nothing more for British seamen than to aid in pro- curing for them the passing of this one section of the Act he would be entitled to their gratitude for ever.

"Deck Cargoes." More than thirty years ago the late Mr. GEORGE PALMER, then M.P. for South Essex, and Deputy Chairman of the NATIONAL LIFE-BOAT INSTITUTION, con- stantly pointed out that a prolific cause of the loss of ships and lives was the carrying of deck cargoes, especially in the winter months. The chief delin- quents in this respect are the timber ships, which are often so loaded on deck that not only are they endangered from their excessive top-weight, just as the safety of a coach is by the piling of heavy luggage on the roof, but so much of the deck-surface is occupied by it that the quick handling of the ropes and working the sails, on which a ship's safety may often depend, is seriously interfered with.

The pecuniary interest of the owner is to carry as large an amount of cargo as is possible, and thus by his cupidity has he too often sacrificed the lives of others.

This heading is divided into two sec- tions, 23 and 24; the first wisely re- quiring deck cargo to pay all dues payable on a ship's tonnage, just as it would do if stowed below, its hitherto exemption from which cannot but have acted as a premium on unsafe loading; the second inflicting also a penalty for carrying deck- loads of timber during the winter months.

Both of these enactments apply alike to foreign and English vessels trading with British ports, other than home-trade ships, as defined by the Merchant Shipping Act, 1854.

" Deck and Load Lines.".

Section 25 directs that every British ship (except ships under 80 tons register employed solely in the coasting trade, ships employed solely in fishing, and pleasure yachts) shall be permanently and conspicuously marked with lines of not less than 12 inches in length and 1 inch in breadth, painted longitudinally on each side amidships, or as near thereto as practicable, and indicating the position of each deck which is above water. The lines to be white or yellow on a dark ground, or black on a light ground.

I Section 26 provides that the owner of | every British ship, except, as in the last | section, yachts, fishing vessels, and ships j under 80 tons register employed solely in | the coasting trade, shall, before every I voyage outwards from any port in the United Kingdom, mark on each of her sides amidships or as near thereto as practicable, a circular disc 12 inches in diameter, with a horizontal line 18 inches j in length through its centre, the centre of which disc to indicate the maximum load- line in salt-water to which he intends to load the ship for that voyage; the said discs, as in the deck-lines, to be white or yellow on a dark ground, or black on a light ground.

It is further required by one of the sub- sections (3) that the owner shall, in the form of entry delivered to the collector or other principal ofBcer of Customs, insert, in writing, a statement of the distance in feet and inches between the centre of this disc and the upper edge of each of the lines indicating the position of each deck above that centre.

By sub-section (4) any officer of Customs may, in default of such statement, refuse to enter the ship outwards.

Sub-section (5) requires the master of the ship to enter a copy of this statement in the agreement with the crew before its being signed by any member of the crew and that no superintendent of any mercantile marine office shall proceed with the engage- ment of the crew until this entry is made.

Sub-section (6) requires him also to enter a copy of it in the official log-book.

Sub-section (7) directs that the above markings on a ship's side shall remain NOVEMBER 1, 1876.] THE LIFE-BOAT.

609 intact until her next return to a port of discharge in the United Kingdom.

Section 27 makes similar provision for marking the load-line in the coasting trade, but the disc-line to indicate the maximum load-line to which the owner intends to load the ship until notice is given of an alteration.

Sub-section (3) requires him once in every twelve months, immediately before the ship proceeds to sea, to deliver to the principal officer of Customs a statement, in writing, of the distance in feet and inches between the disc-line and the lines indicating the position of the ship's decks above that line.

Sub-section (4) requires the owner to give notice, in writing, to the principal officer of Customs before the ship proceeds to sea of any renewal or alteration of the disc-line, together with the distances between it and the decks above.

By Sub-section (5) the owner is liable to a penalty not exceeding 100Z. for every failure to act up to the requirements of this section.

Section 28 inflicts a penalty not exceed- ing 100Z. on any owner or master neglect- ing to have his ship marked as required by this Act, or to keep her so marked, or who allows her to be loaded so as to sub- merge the disc-line, or to be inaccurately marked so as to mislead. It also imposes the same penalty on any person who con- ceals, removes, alters, defaces, or obli- terates, or suffers any person under his control to do so.

In common with many others, we have long since advocated the adoption of load- lines distinctly marked on ships' sides as the most likely means to prevent over- loading. The Government authorities have always seen a difficulty in the way conse- quent on the varying depth to which ships might be safely loaded with different descriptions of cargo. However, " where there is a will, there is a way;" the diffi- culty has now been got over, and the manner in which the requirement has been carried out is, perhaps, the best that could be devised.

"Investigations into Shipping Casualties." Section 29 empowers the Lord High I Chancellor of Great Britain to appoint | from time to time a Wreck Commission, or Wreck Commissioners up to the number of three, and to remove any such Commis- sioners, and in the event of its becoming : necessary to appoint a Wreck Commissioner in Ireland, the Lord Chancellor of Ireland to have the appointment and power of removal of such Commissioner.

The duty of a Wreck Commissioner will be to hold, at the request of the BOARD OF TRADE, any formal investigation into a loss, abandonment, damage, or casualty (in this Act called a shipping casualty), under the eighth part of the Merchant Shipping Act, 1854, and for that purpose he will have the same jurisdiction and powers as are thereby conferred on two justices, &c.

Section 30 specifies rules of procedure by the Wreck Commissioners, justices, or other authority.

Section 31 confers on a Wreck Com- missioner the same powers as are held by a Receiver of Wreck in holding investiga- tions, &c.

Section 32 empowers the BOARD OF TRADE to hold inquiries or formal investigations as to stranded, lost, or missing ships.

" Miscellaneous." Section 34 empowers any commissioned officer on full pay in the naval or military service of Her Majesty, or any officer of the BOARD or TRADE or Customs, or any British consular officer, to detain a ship when authorized to do so by the Act, and inflicts a penalty, not exceeding IQOl. on the master of the ship, if he shall proceed to sea after receiving notice of such de- tention, and also on the owner, if privy to the same.

Section 36 provides for the registering of every British ship.

Section 39 provides that on and after the 1st of January, 1877, all fees payable in respect of survey or measurement of ships, &e., shall be paid through a mercantile marine office into Her Majesty's Exchequer, to form part of the Consolidated Fund of the United Kingdom, and that all salaries to surveyors under the Act, and salaries and expenses of persons employed under the Passengers Act, 1855, shall be paid from moneys provided by Parliament in- stead of, as hitherto, into and from the Mercantile Marine Fund. Also that the salaries or other remuneration to any Wreck Commissioner, Judge of Court of Survey, and others appointed under this Act, and all costs and compensations pay- able by the BOARD OF TRADE, be likewise paid out of moneys provided by Parlia- ment The remaining sections of this heading | are of a technical nature not calling for I special notice or comment.

"Repeal" Section 45 under this heading pro- vides for the repeal of such portions of the Merchant Shipping Acts, 1854, 1871, 1872, and 1873, as are superseded by this Act, and for the repeal of the whole Act of 1875.

We have now summarised at some length this most important Act of Parlia- ment. The crying necessity for those of its clauses relating to the safety and pro- tection of our seamen we have ceaselessly advocated for more than twenty years in the pages of the Life-boat Journal. These views were re-echoed by the Press of the kingdom, and we have the satisfaction of knowing that our reflections have helped materially to mature public opinion on the whole of this important and national subject. We will only in conclusion ob- serve that the Act is a great step in ad- vance, and that whilst it does much for the protection of the lives of our seamen and passengers by sea, full justice is meted to the shipowner throughout, and that he is subjected to no more restraint or " espi- onage " than is indispensable for the public good, or than is imposed on the employers of labour and caterers for the public convenience on the land.