§ Bill considered in Committee.
§ (In the Committee.)
§ Unseaworthy Ships.
§ Clause 3 (Sending unseaworthy ships to sea a misdemeanor.)
LORD ESLINGTON moved, in page 1, line 17, after "misdemeanor," to leave out "unless he proves," and insert "if it be proved." He took this course because he entertained a deep-rooted conviction and a profound belief that the principle sought to be introduced by this clause was unjust in itself, and very likely to work further injustice by its operation. He objected to it because it would enable a guilty and unscrupulous man to go into the witness-box, and, by ingenuity and boldness of statements, deceive a jury, and it thus offered a premium to perjury. He also objected to it on behalf of the innocent mans, who went into the witness-box to prove his innocence, because he might in cross-examination be so bothered and bewildered as to be inveigled into statements which might materially prejudice his case before the jury. He asked, what necessity there was for altering the old law of England? If in 1872 he had
doubts of the soundness of the principle he was now challenging, those doubts had been more than confirmed by the outspoken opinion of a learned Judge on the subject quite recently. The clause under discussion stated that—
Every person who sends or attempts to send, or is party to sending or attempting to send a ship in such unseaworthy state that the life of any person is likely to be thereby endangered …. shall be guilty of a misdemeanor, unless he proves that he used all reasonable means, &c.
But there might be many cases in which such a person might have no knowledge whatever that the ship was unseaworthy. There might be, for instance, a hidden flaw in the shaft or screw propeller, or a defective boiler plate which had escaped notice, or some valve or sea cock which would not work as was expected, or the ship might prove unseaworthy after getting to sea, though she might have left port in an apparently seaworthy condition. And yet in such circumstances a man might be placed in the dock as a criminal, or, in order to clear himself of the charge, he might have to walk from the dock to the witness-box as a criminal. That was the privilege offered to the accused in the opinion of his right hon. Friend the Chancellor of the Exchequer. And what was the ordeal a man so placed in the witness-box might have to go through? His cross-examination might be conducted by an unscrupulous advocate, not for the purpose of ascertaining the simple point of guilt or not, but to defeat and destroy every effort on the part of the accused to prove his innocence. The Mercantile Marine of England had made England what she was, and yet the Merchant Shipping Law framed for their guidance was to be thus distorted and twisted contrary to the old legal principle. Were pitfalls to be dug for innocent men to fall into? This principle had been smuggled into the Act of 1871 about the month of August, and he did not know that it had been subjected to any discussion. It appeared again in the Mines Regulation Act of 1872, and he fought hard against it on that occasion. But he would remind the Committee that the word "wilfully" was introduced into that Act. The principle had been introduced into other Acts, notably some sanitary Acts, into the Adulteration of Food Act, and Pos-
sibly another. He would not, therefore, be correct in describing it as entirely novel; he would content himself with calling it strange to the feelings and convictions of Englishmen. Three cases had been lately tried—one in Belfast and two in Waterford—but they afforded no test whatever of the soundness of this principle. Neither of them touched the point raised by the learned Judge, because in each case the arrival of the vessel furnished positive evidence as to unseaworthiness. But there was no instance where the vessel had gone to the bottom of a man being asked to prove that the ship when she went to sea was seaworthy. When on a former occasion the opinion of Mr. Justice Brett was alluded to, the hon. and learned Member for Taunton (Sir Henry James) said he had great respect for the learned Judge, but that his opinion was not worth more than any opinion which might be expressed in this House. [Sir HENRY JAMES: Than any clearly expressed opinion of the House.] He (Lord Eslington) differed from the hon. and learned Gentleman. He thought the opinion of learned Judges would be of much greater weight, because they would speak with much greater deliberation, not for the purposes of the moment, but with a view to the interests of the future. If the hon. and learned Member were now, as he would one day be, an ornament to the Bench, he would deliver his expositions of law in a different mood from that which influenced him on the front Opposition bench. Perhaps it might be told that it was necessary to introduce this new principle because it would be difficult otherwise to procure convictions. If they could not procure the conviction of a guilty man by the known, respected, and well-tried principles of English law—in other words, by fair means, they had no right to adopt foul means for that purpose. He commended his Amendment to the House with the more confidence, because the Chancellor of the Exchequer the other evening said that this was not a question on which parties ought to array themselves—that the Government were not absolutely wedded to their own views, and that they wished to be guided by the general and aggregate opinion of the House on this great question. The clause in its present state would alter one of the fundamental principles of
English law, and he hoped the Committee, before adopting it, would consider whether the change proposed was necessary and whether it was not likely to work injustice.
In page 1, line 17, to leave out the words "unless he proves," in order to insert the words "if it be proved,"—(Lord Eslington,)
§ SIR CHARLES ADDERLEY
said, that the part of the clause called in question was not really open to the criticism of the noble Lord. The principle was by no means new or inconsistent with the law. On the contrary, it was consonant with the spirit of the law and of all recent enactments on the subject. It was a provision not only necessary, but in every way advisable. The case was simply this—if it was proved that a ship was sent to sea in a state dangerous to human life, a crime had been made out; and the strong presumption must be that those who were cognizant of, and responsible for, the state of the ship, and who only could know of it, were guilty of that crime. The crime was proved; there was presumptive and strong evidence against the owner, but this portion of the clause enabled, the owner—primâ facie evidence having gone against him—to show lawful excuse and so exempt himself from the penalty of the law. Instead of the defendant being allowed to adduce circumstances in his own behalf of which he alone could be cognizant, the noble Lord said the prosecution ought to be called upon in the first place to prove a negative—namely, that the defendant had no excuse, and next to test exhaustively circumstances of which no one else but the defendant could be cognizant; in other words, that the prosecution was to do that which was absolutely impossible. It seemed to him (Sir Charles Adderley), on the ground of common sense, that when a man had acted so negligently as to send a ship to sea in such a state as to endanger life, a primâ facie case had been made out against him which it was for him to exculpate himself from, if possible. He admitted that the general principle of the law was that a prosecutor must prove every fact that would make out his charge, and also that it presumed every man's innocence till the contrary was 888 proved. Another general principle had, however, ruled for the last 30 or 40 years—namely, that the burden of proving lawful excuse, where a primâ facie case was made out, lay upon the defendant. There were 50 or 60 recent Acts in which this principle had been adopted, as the noble Lord would find if he referred to Taylor on Evidence, so that there was no straining of the law in this instance to catch the shipowner, but a following of the latest approved principles. What was the language of the Factory Act of 1844? It was infinitely stronger than the language of this clause. When a breach of the Act was found to be committed, the Act said—The occupier of the factory shall be deemed in the first instance to have committed the offence.In this case there was only recognized the presumption against the shipowner. But the Act went on to say—If he shall prove that he has used due diligence to enforce the execution of the Act, he shall be exempted from the penalties otherwise incurred.In the Explosive Substances Act of last year it was enacted that the occupier should be liable to great penalties, but might discharge himself by showing that he applied all proper means and issued proper orders against the infringement of the Act. The noble Lord said there was no such principle in the Merchant Shipping Acts. The language of the Act of 1867 was thatthe penalty shall attach to the owner or master in fault, unless he shall prove that non-compliance was not caused through any inattention or neglect on his part,which was precisely on all fours with the provision now under discussion. Indeed, the actual provisions of the previous Act were re-enacted in the Act of last year. When, therefore, Mr. Justice Brett made the speech from the Bench which had been referred to, he must say it appeared strange that a Judge should have gone so far out of his proper function to criticize pending legislation apparently not aware that he had administered the law accordingly for five years past. In several of these Acts there was the further principle introduced, which had always been recognized by the Common Law, that where the subject of allegation lay peculiarly within the knowledge of one of the parties, he must state it, even 889 although without it the presumption of law was in his favour. It would, therefore, be a retrogression in law if the Committee were to adopt the noble Lord's Amendment. The noble Lord was adverse to putting the defendant in the witness-box to allow him to give evidence in his own behalf, and although there had been less precedent for that than there was for the other proposal, the practice was growing. It seemed a great hardship to a defendant, who alone might know all the facts and be able to clear himself, to shut his mouth; and the only thing to be said for it was, that if he had the power to give evidence and did not avail himself of it, that fact might raise a presumption against his innocence, for it might be assumed that if a man was innocent, he would wish for the opportunity of proving it. The law officer of the Board of Trade had told him that in every prosecution of a shipowner, under the Acts from 1871 down to the present time, the defendants had eagerly availed themselves of this right, and if they were innocent they always would do so. Why should a great shipowners' association, who would never come in conflict with the law themselves, raise this abstract, and, as it proved, erroneous point of constitutional theory against a practical benefit desired by small shipowners, who did come into conflict with the law and who had availed themselves largely of this right, the principle of the law being that which the Legislature had followed so many years and the practical operation of the law having involved no injustice and never having been objected to? Let it be considered for a moment what the practical effect of the clause would be. The kind of excuse a shipowner would have to prove in these cases would generally be that he had employed good shipwrights; that the ship had been overhauled before going to sea; and that he took such means as an honest and careful shipowner would take in sending a ship to sea to protect the lives of the crew—all facts which would be within his knowledge and could not be within the knowledge of the prosecutor. If the Amendment were carried, there must be a conviction, without the defendant having an opportunity of exculpating himself; and this disabling of a defendant to give evidence on his own 890 behalf would be the maintenance of the relic of old law which disqualified a man as a witness where he had any interest in the result. The Bill would only do for the shipowners what had been done for the seamen, by affording them facilities to prove the unseaworthiness of a ship as an answer to the charge of desertion. It was precisely on the same principle that the shipowner was now offered the means of exculpating himself when a primâ facie case was made out against him. The clause was not at all open to the criticisms of the noble Lord, who, he trusted, would on reflection see that it carried out right principles more than the Amendment.
§ MR. SERJEANT SIMON
said, the criticism of Mr. Justice Brett was directed against the Act of last Session, not against the Bill before the House, and, without saying anything as to the propriety or otherwise of such criticisms from a Judge on the Bench, he held that the opinion of a Judge on such a matter as the present was of more weight than the opinion of many Members of that House. The Judges saw the practical working of the law, and were able to give a calm and unbiassed judgment upon it, which was not always the case on the part of the House when a Bill was in its passage through it. He was glad that the Amendment came from the other side of the House, because it could not be said that those who agreed with the proposal were by so doing actuated by party motives. It was all very well to talk of what had been done by the Factory Acts; but there was no analogy between the provisions of those Acts and what was proposed by the Bill. He concurred in the objection of the noble Lord to making a person accused on a criminal charge a witness in his own cause. He suggested that the difficulty would be got rid of, if the clause were altered so as to read that every person who, without using reasonable means to avoid sending a ship to sea in an unseaworthy state, or who, under circumstances that were not reasonable and justifiable, did send a ship to sea in that condition, should be guilty of a misdemeanour. A shipowner who sent a ship to sea in an unseaworthy condition so as to endanger life ought unquestionably to be punished, but he protested against making him a witness in his own case. If it was intended as a 891 privilege, as had been said, then why confine it to the shipowner? Why not extend it to all persons charged with a criminal offence? And was the House prepared to do this? If it was not a privilege then it was a disadvantage, and why should a shipowner be placed at a disadvantage which no other person on a criminal charge was? It was a serious innovation on the principles which had hitherto guided our criminal jurisprudence, and of a most mischievous tendency. The present case, moreover, was one which found no justification in any special necessity arising out of the nature of the case. On the contrary, there was not a charge that could be brought against a shipowner under the clause about which in nine instances out of ten he could himself give the slightest account. All he could say was he employed a shipwright and his clerks and agents, and they would have to be called to give evidence in his behalf. In fact, this was precisely the class of case about which the accused himself would probably know nothing, and as to which everything that was to exculpate him would be known to others, and not to him. He trusted that the Government would weigh the matter further before they adopted this clause in its entirety.
§ Sir HENRY JAMES
said, they were all agreed that some such clause as this was necessary, and they were also anxious that the clause should be so framed in relation to its primary object—the preservation of human life—that it should not throw any hardship upon those who were not likely to come within the operation of the clause. The first portion of the clause had been generally accepted by those who had taken part in the discussion. It fixed upon the shipowner the duty of sending his ship to sea in a seaworthy condition; but as a shipowner, however careful, must sometimes fail in carrying out that duty, was he not placed by means of the second part of the clause in a much better position than he would otherwise occupy, for he was thereby enabled to give evidence to show that he had done all he could to fulfil the duty imposed on him. It was said that the prosecution would be bound to negative the answer of the defendant; but there was no proposition in our law to such an effect. Again, it was urged that the clause would introduce an innovation in our legislation; but he could show many 892 instances, and in relation to a cognate matter, principally under the Merchant Shipping Act, where the burden of proof was thrown on the accused, and where the accuser was bound to answer the excuse made. In the year 1854 an Act was passed in reference to foreign sailors brought to this country in any ship, and who, being left here, became chargeable upon the rates or were liable to be convicted as disorderly persons—there the owner of the ship was liable to a certain penalty, unless he could show that the persons so left in this country remained without his assent. An amended Act of the same year cast upon a shipowner or master the burden of proof in the case of an accusation against him of discharging a seaman or apprentice without a certificate. An Act of the following year relating to emigrants enacted that if any question arose as to whether a ship was exempt from the provisions of the Act, the burden of proof should lie upon the party claiming the benefit of the exemption. Another Act threw upon the owner or master of a ship the onus of proving that non-compliance with its provisions as to medical stores, lime juice, and so on, required to be provided, did not arise from neglect or wilful default. The instances might, in fact, be multiplied of cases in which various penalties were provided, some of them cases of misdemeanour, where it lay upon the party accused to excuse himself. But then objection was taken to the provision as to the person accused being examined as a witness. That was a very broad question, one as to which great difference of opinion existed, and his present view was rather against than in favour of it. This, however, he could not but see—that if the provision were struck out of the present Bill, the class of shipowner they all desired to aid—namely, the careful shipowner, would be the person to suffer. Why should they not give him every assistance to prove his innocence? The clause did not say that he must be put into the box, but that he might put himself into the box, and the person who was conscious of having done his duty would be the first to say—"Here are my manager, agent, surveyor, and clerks; examine them; examine me also, and I can show that I used all reasonable means to send my ship to sea in a seaworthy condition." A similar provision was inserted in the 893 Mines Act, enabling owners and managers to give evidence; and during the progress of the Licensing Act of 1872 the Recorder of London, whose absence from the House was now so much regretted, proposed that both the licensed victualler and his wife should be called as witnesses. Those who were supporting the Amendment were placing the careful shipowner in the greatest peril by keeping the mouth of the man closed who could best show—having the knowledge in his own breast—that the charge against him could not be sustained. He hoped the Committee would not alter the clause in the manner proposed.
§ MR. SERJEANT SIMON
explained that, although he supported the Amendment, he had not opposed the clause. His criticism had been directed against that part of it which would make the accused a witness.
§ MR. FORSYTH
said, one of the well-known principles of the English criminal law was to throw the burden of proof upon the defendant, when the special means of knowledge were in the breast of the accused. He would tell the noble Lord that that was one of the commonest principles of the criminal law of England. This principle was explained in Taylor on Evidence. The proposal to call the shipowner into the box was much less defensible on the ground of precedent; but how could he, in the majority of cases, prove that he used reasonable means of precaution unless by tendering his own evidence?
§ Mr. SAMUDA
said, one of the provisions of the Bill now before the Committee was that the responsibility of proof of the seaworthiness of the ship should be thrown on the shipowner, and the shipowners were propared to accept that, and to give all reasonable proof in their power in the matter; but the Amendment of the noble Lord would relieve the shipowner from a responsibility he was willing to accept.
MR. MAC IVER,
on rising to support the Amendment proposed by the noble Lord the Member for Northumberland (Lord Eslington) said, there were other than legal considerations involved. It was peculiarly a practical question, and the legal references that had been made by hon. Members did not appear to him to be in point. The case of a shipowner was different entirely from those instances which had been given. Let a 894 shipowner be ever so careful, there might at any time be a disaster, and as the evidence of guilt might disappear, so might the evidence of innocence. Shipping disasters were different from other disasters. The right hon. Gentleman at the head of the Board of Trade (Sir Charles Adderley) had spoken of this clause—and he had no doubt he meant what he said—as if it was for the benefit of the shipowner; but if this were so, how was it that shipowners from one end of the Kingdom to the other objected to it? He (Mr. Mac Iver) represented a shipbuilding and ship owning constituency, about which no Member in the House could say that, either on its part or on his own part, there was a shadow of reasonable ground for supposing that it was their desire to screen any persons guilty of sending to sea unseaworthy vessels. The hon. and learned Member for Taunton (Sir Henry James) seemed to him to argue against his own case. The proposed criminal legislation with regard to merchant shipping had no terrors to men who wilfully neglected to send ships to sea in a seaworthy state; but it had its terrors to the honest traders who were anxious to do their best both with regard to the safety of the men employed by them and also by their shipping property. The supposition of many Members in that House, no doubt, was that good ships were perfection. Gentlemen anxious and earnest in the direction of saving life at sea would say, if a man knew of a defect in hull or machinery why did he not take it out? The reply was this—that there was not one of the leading companies, whose shipping management was most prudent, that possessed a ship which was in every little detail absolutely and perfectly sound. Supposed defects were not always real ones, and even real defects were not always important. The difference between prudent and careless shipping management was that the prudent man who understood his business would closely watch matters and attend to anything requiring attention if he was not frightened, from making personal inquiry by such legislation as that proposed; whilst the careless man would find individual safety in personal ignorance, and leave the safety of his vessel purely to chance. The House was not to suppose that it was always easily discoverable when a ship had a 895 defect. If a shipowner had every little defect put right he would soon find himself in the Bankruptcy Court. He was sure that what he had said would be borne out by every reasonable and thinking man in that House, and that the clause in its present form was a crying injustice. The shipowner who knew nothing, and took care not to know, was safe—not so the honest man who did his best. He should like to call the attention of the right hon. Gentleman the President of the Board of Trade to this, because he contrasted the larger shipowner against the smaller ones, and was also inclined to taunt the Liverpool Shipowners Association and other societies with regard to the meeting they held in London. The President of the Board of Trade had boasted too much about his feelings in relation to the "costermongers of the sea." He (Mr. Mac Iver) had had to do with more vessels carrying coal than any other Member of that House; unless, indeed, he happened to be some large colliery proprietor. This class of vessels used to come three or four times a week to the firm he was with from South Wales with coal, and they went safe. But he did know there was scarcely a sound one amongst them, in the sense of being absolutely without blemish of any kind. Yet the whole of them were reasonably safe for the work they had to do. And yet if any unfortunate man were to lose one there might be placed against him a long list of defects which seemed like reality, which perhaps amounted to nothing, yet for which he might be liable to severe punishment. He wished to urge upon the House that the views held at the different seaports were deserving of attention. They were sure of a calm and impartial consideration in the hands of Gentlemen who could have no other desire than to save human life; but to legislate without giving due consideration to those views would cripple the maritime trade of the country.
§ MR. W. E. FORSTER
said, he should be obliged to vote against the Amendment of his noble Friend if it were pressed to a division. As the clause stood it would not be very easy to get a conviction; but it would be impossible to do so if the proposed alteration were adopted.
as a practical shipowner, strongly objected to the clause. He believed this attempt to make ship- 896 owners careful by throwing the responsibility upon them would not have the effect intended. The proper course to adopt was to prevent unseaworthy ships from going to sea, instead of throwing the responsibility on the owners. In the latter case, if ships were allowed to sail and were wrecked, the Government would turn round upon the owner and punish him after lives had been lost.
§ MR. GREGORY
supported the Amendment. The question really before the Committee was, not the liability of the shipowner, because that was secured by the clause; the question was whether the shipowner should be put into the witness-box. If the words were to stand in the Bill as now proposed no shipowner could be expected to escape conviction, unless he were put into the box. The precedents from 1844 downwards did not warrant the insertion of the clause as it stood, and he trusted that the Committee would agree to the Amendment of the noble Lord.
§ Mr. WATKIN WILLIAMS
could not support the Amendment, but he felt indebted to the noble Lord for having brought the matter before the attention of the Committee, because it could not be concealed from them that there was an uncomfortable feeling among a large class of people that they were about to make a great alteration in the criminal law. The chief objection which had been made to the clause was, that it proposed to enact that a man should be considered guilty unless he proved himself to be innocent; but that was not the case, for the clause provided that certain conduct should amount to an offence punishable by law, and that it should be competent to the person charged to put a different complexion on the act and be entitled to become a witness in his own defence. The clause did not, in his opinion, introduce a novelty into our law, for, without relying on recent precedents, the principle had long existed in the English law.
THE ATTORNEY GENERAL
said, that if the Amendments were accepted they would render the clause nugatory. The great desire of the Government was to meet a crying and terrible evil, and it was essential for them to make the clause for that purpose a stringent and vigourous one. No one could object to that being done, provided the clause of the Government worked no injustice to 897 anybody and was not unconstitutional. As to the principle of the clause, he agreed with his hon. and learned Friend (Mr. Watkin Williams) that it was not novel. There were many offences known to our law in which the proof of certain facts was sufficient to raise a primâ facie presumption of guilt, removing the onus of proof from the prosecution and casting it upon the accused. Here, if a man sent to sea a vessel which afterwards was abundantly proved to be unseaworthy, it was his duty to know, if anybody in the world knew, what the facts were, and there was no hardship in calling upon him, by his own or other evidence, to rebut the presumption of guilt. There were many cases, and this was one of them, where a strong presumption arose against the accused. That presumption threw the onus on the accused of proving that he had showed due diligence; and if they allowed that presumption to be rebutted, it was reasonable that he should be allowed to give evidence in his own behalf. No doubt he might be cross-examined; but, with a Judge to protect him, it was not likely that any innocent man would suffer. It was not necessary that he should present himself in the witness-box; all that he required to prove might be proved aliunde. No one had a higher opinion of Mr. Justice Brett than he had; but when he said that this enactment made him shudder, they should remember that novelty sometimes made a Judge shudder. It was not long ago that the whole of Westminster Hall had been convulsed at the idea of a man in a civil case being heard as a witness in his own cause. This matter was not novel; there were a number of precedents from Acts of Parliament which cast the onus of proof upon the accused. The Foreign Enlistment Act of 1870 distinctly provided that where a man, under certain circumstances, sent an armed ship to sea, it was to be presumed that the ship was to be used for military and naval purposes unless he himself proved the contrary. The Explosive Substances Act of 1875 contained a similar provision. In the Sale of Food and Drugs Act of 1870 precisely the same provision was contained. A Motion was made to strike out "knowingly," which was supported by the hon. Member for Louth (Mr. Sullivan), who now talked so loudly about 898 this clause being unconstitutional. He thought in this case the onus was fairly and properly thrown on the accused of showing that he had used all reasonable means and exerted every possible diligence to avoid sending a ship to sea that was unseaworthy. Instead of being unjust to the accused, it was highly favourable to him to allow him to give evidence.
admitted that the Attorney General had quoted quite correctly the precedents for calling on the accused to prove his innocence; but in the cases cited what the accused had to prove was more or less specific. He had yet to learn that British laws required the accused to do so in a matter so indefinite and so elastic as "reasonable means" and "seaworthy state."
§ MR. PEASE
remarked that the Coal Mines Regulation Act had been cited as one throwing on the owner the onus of proving that he had done certain things for the protection of life; but there was this difference between the present case and that of the mine owner. In the case of the shipowner, he was guilty of a misdemeanour; but in the case of the coalowner he was only guilty of an offence against the Act, the penalty for which was a fine, or, if an aggravated case, imprisonment. To such a provision he had no doubt the shipowners would consent.
§ MR. GRANTHAM
said, the fallacy underlying the arguments of those who opposed the clause was that they argued as if the well-known assumption in criminal matters applied to this clause—namely, that if a prisoner declined to state where he obtained stolen property, or if he declined to give any account of matters on which he was accused, that the assumption of his guilt was greatly increased. But that assumption only applied to acts done by the persons charged; whereas in almost every case, under this clause, the acts referred to were in reference to things done by persons other than the shipowner—namely, shipwrights, &c, and consequently as they could, and would, be called, no assumption of guilt ever could arise against the shipowner. Shipowners could know little of the details of the management of repairs; it would be considered a matter of slight importance, therefore, whether they were called as witnesses or not, and, therefore, they could suffer 899 no injury from the clause. If he thought shipowners would suffer, he would not support it.
§ Question put, "That the words 'unless he proves' stand part of the Clause."
§ The Committee divided:—Ayes 252; Noes 35: Majority 217.
§ MR. PLIMSOLL,
who had the next Amendment on the Paper, said, he should withdraw it, as the division just taken disposed of it. He wished, however, to correct a misapprehension which seemed to prevail with regard to his Amendment of last Monday. Many hon. Members supposed he wanted a survey of every ship prior to every voyage; whereas all he wanted was a survey of unclassed ships like that of Lloyd's, and that the certificates should last good as long as those given by Lloyd's and other registries. This narrowed the surveys very considerably. He found that the misapprehension to which he had referred prevailed somewhat extensively in that House and amongst the public, and it had been put forward in one of the most influential newspapers in London.
§ CAPTAIN PIM moved, in page 1, line 18, to leave out from "or," to "justifiable," in line 20, both inclusive. He could not conceive under what circumstances it could be reasonable, and still less justifiable, to send an unseaworthy ship to sea.
§ SIR CHARLES ADDERLEY
said, that very often a ship was damaged at sea by stress of weather, and, becoming unseaworthy, put in where she could not be repaired, and it was necessary to take her to sea again to get to a port where the repairs could be effected.
§ CAPTAIN PIM
thought in such a case the unseaworthiness did not come within the meaning of the clause.
§ Amendment negatived.
§ SIR EARDLEY WILMOT, moved, in page 1, lines 20 and 21, to leave out the words "and, for the purpose of giving such proof, he may give evidence in the same manner as any other witness." By this clause they were called upon to confirm and establish a rule which was contrary to our constitutional law. They were called upon to say that a man charged with an indictable offence, which would 900 render him liable to two years' imprisonment with hard labour, should be competent to go into the witness-box, and give evidence upon oath to exculpate himself from the charge preferred against him. He did not think it right that any distinction should be made between a defendant of one class and another, and moreover, there would be this evil—namely, that he would be subjected to a severe cross-examination, and perhaps lead to his own condemnation instead of his justification.
In page 1, line 20, to leave out all the words from the word "justifiable," to the word "witness," in line 22, inclusive.—(Sir Eardley Wilmot.)
THE ATTORNEY GENERAL,
expressed an opinion that this Amendment had already been discussed and disposed of upon the proposition of the noble Lord (Lord Eslington). It seemed to him that if they threw upon the accused the onus of proving that he had used all reasonable means of making a ship seaworthy they must in justice allow him to be a witness. Perhaps in the majority of cases he might be able to prove that he had used such means without himself giving any evidence; but cases might arise where the excuse to be offered would entirely depend upon the ship owner's own knowledge. Precedents for allowing a man charged with misdemeanour to be a witness in his own behalf would be found in the Customs Act and the Sale of Food and Drugs Act.
§ SIR ANDREW LUSK
said, he hoped the discussion would not be altogether confined to Members of the legal profession, but that those who were more directly interested in the question would lay their views with respect to it before the Committee. For his own part, his experience as a magistrate led him to the conclusion that the Committee ought to be careful how it meddled with the rule that no man should be called upon to criminate himself. He deprecated any interference, if it could possibly be avoided, with the usual rules for the administration of justice, and he did not think the shipowners had done anything which warranted their being placed in a different position from other people. He regarded this as an attempt to introduce the French system of cross-examining prisoners.
§ LORD ESLINGTON
said, he thought that as the Committee had, by a most conclusive expression of its opinion, determined to throw the onus of proof on the owner, the state of affairs had materially changed. He objected to throw the onus of proof on the owner, and he objected equally to put him into the witness-box to prove his own innocence. But the two propositions appeared to him to go together, and as the former had been rejected, it would be hard to deprive the owner of the power of giving evidence on his own behalf.
§ MR. NORWOOD
said, the President of the Board of Trade had complained to-night that the richer shipowners were anxious to remove this clause, and thereby damage the smaller shipowners, who were always desirous to give evidence. He supported the Amendment, however, on the very ground that this power of giving evidence would be very detrimental indeed to the poorer shipowner, who, being uneducated, would be liable to be confused by cross-examination, and might be placed in the painful position of criminating himself unintentionally. But he objected still more strongly to this provision on the ground that it would tempt men to the commission of perjury. The clause was unjust. No shipowner in the House desired to escape responsibility; but he appealed to the Government to re-consider this clause before the Report.
§ SIR CHARLES ADDERLEY
said, his argument was that the large shipowners, who never came into contact with the law, opposed the clause on the theoretical ground that it would be injurious to the small shipowners, who were more likely to be the subject of prosecutions; whereas in every case of a prosecution that had hitherto taken place the accused had been most anxious to be examined.
§ MR. SHAW LEFEVRE
remarked that the power of giving evidence had been taken advantage of in every prosecution under the Act of 1871 and last year, and as there was no evidence of injustice having been done he thought this clause might be safely accepted.
§ MR. HARDCASTLE
said, the clause practically involved the whole question of a man being compelled to criminate himself. If a man did not avail himself of the clause, that would be regarded by 902 the jury as tantamount to an admission of his guilt. That was a most dangerous principle to introduce, and he, therefore, should support the Amendment.
§ MR. SERJEANT SIMON
objected strongly to the proposal that an accused person should be practically compelled to tender himself as a witness. A bold, hard-headed, unscrupulous witness would probably baffle counsel, while a timid, nervous, but innocent man might be tortured into contradictions which would tell against him, and even the Judge would be bound in the course of his duty to test his credibility. The hon. and learned Member for Taunton (Sir Henry James) shrank from extending this principle to all criminal cases. Why, then, apply it to this case?
§ MR. GOURLEY
said, it was only fair that before a shipowner went into the box and was, perhaps, badgered into criminating himself, some evidence should be given in proof of the offence. What was meant by "seaworthiness?" Could anybody define it?
§ MR. HENLEY
said, there could be no doubt that this great change in the constitutional law of the country had been introduced by the Government in the belief that it would give fair play to prisoners accused under the Act of sending unseaworthy ships to sea; but, as far as he could collect, there had been very little argument to support it. Instead of being a benefit and an advantage to the shipowner that he should be enabled to be a witness in his own defence, nothing could be more prejudicial. He could conceive no case in which a man would not be able to prove by independent witnesses that he had taken reasonable care to send his ship to sea in a proper condition; but if he declined to give evidence himself he would be accused by the prosecuting counsel of being afraid to tender himself for cross-examination. By departing from the great constitutional principle of the law in these cases they would set a precedent very apt to be followed, for it was astonishing how these things crept on bit by bit; and in the end they would come to that abominable system of examining every wretched creature accused of a crime, and convicting him out of his own mouth. He believed that the clause, instead of giving the shipowners a fair chance, would be only giving them a rope to hang themselves, and therefore he 903 would have great pleasure in supporting the Amendment.
§ THE CHANCELLOR OF THE EXCHEQUER
called the attention of the Committee to the position in which they stood with regard to this question. They had already agreed that the attempt to send an unseaworthy ship to sea was to be treated as a misdemeanour. They had further agreed that it should not be necessary, in the first instance, to prove that the owner of a ship had not taken reasonable and proper means of preventing his ship from going to sea in that state. It had to be proved that the offence was complete—that the ship was unseaworthy—that the managing owner had been responsible for sending her, or attempting to send her, to sea; and in all these proceedings the line of the present system of jurisprudence would be strictly followed, because the whole burden of proof would rest on those who prosecuted. In passing, he might remark that there need be no fear of malicious prosecution, since none of the prosecutions could be undertaken except with the previous sanction of the Board of Trade. The point the Committee had to decide was—were they to throw the burden of proof that there had not been reasonable care upon the prosecution or upon the shipowner? Already they had decided, by a large majority, that if the prosecution could prove that the ship was sent to sea in an unseaworthy state under circumstances which induced the Board of Trade to direct the prosecution, the burden of proof that proper care had been taken should rest upon the shipowner. In considering the Amendment the Committee must start from that point. Anybody could see that allowing a man who had been proved primâ facie guilty of this offence to give evidence on his own behalf was an advantage, and not a disadvantage. But to that the answer was given that they would put him in a disagreeable position—for that if he did not go into the box, it would be presumed that he had some reason for keeping himself out of it, while, in fact, he would only absent himself because he might prove all that was necessary by other witnesses than himself. In a large number of cases it would be wholly unnecessary for the shipowner to tender himself as a witness; but there might be cases in which it would be very inconvenient, and per- 904 haps impossible for him to call these witnesses. The shipwright whom he had employed to build the ship might be dead, or far away in some other part of the world; and in such cases it would be a great disadvantage to the shipowner not to be allowed to give evidence himself. He thought that by refusing this right to the shipowner they would do an injustice in 20 cases for the one case in which an honest but nervous man would be saved from the inconvenience and embarrassment of a cross-examination.
§ MR. T. E. SMITH
said, he had voted with the noble Lord the Member for Northumberland against throwing the responsibility on the shipowner of proving his innocence; but the House having decided that the onus should be thrown on him, he thought it most important that the accused should be allowed to go into the witness-box and state his own case. It had been said that an innocent defendant might be put into the box and subjected to such a cross-examination as would lead him to fall into a trap laid by counsel, but he did not believe any such thing could occur. The shipowner might in some cases be held liable, not only for the acts of which he was cognizant, but to a certain extent for the acts of his authorized agents in foreign ports. A ship might sustain serious damage, and repairs more or less satisfactory might be done in a foreign port. The ship sailed from that port for England and was lost. All the instructions which the owner had given to his captain on which he had acted were probably lost in the ship. It was, therefore, absolutely necessary that the shipowner should be able to tell his own tale, and he should vote for the retention of the words in the clause.
§ MR. SERJEANT SHERLOCK
supported the clause. He had often heard the allegation made that when the mouth of a party charged with an offence was closed it was most unjust to consign him to imprisonment or death for want of a sufficient explanation. In his opinion, when a party was proceeded against either in a civil or criminal case, he ought to be allowed to explain the nature of the transaction. There was no likelihood that any prosecution would be instituted without an official inquiry, and he thought this was emphatically a provision which would be of great advantage to the public.
§ MR. WATKIN WILLIAMS
supported the clause with, no misgiving, except as to the propriety of making such an important change in the law in a Bill of this kind, instead of by a Bill relating to legal procedure generally. The corresponding changes which had been made in admitting the evidence of interested persons in certain cases had resulted in unqualified benefit and all prophecies of evil consequences had been falsified.
§ MR. SAMUDA
said, there were two proposals before the Committee—one by which it was submitted that the Government should relieve the shipowner from his responsibility, and become the prosecutor; and the other to throw the whole responsibility upon the shipowner of proving that he had done all that was reasonable and just to make his ship seaworthy, and that he was innocent of the accusation brought against him to the contrary. A large majority of the House had decided in favour of holding the shipowner responsible, and the ship owner, if the present Amendment were agreed to, would be placed in a most disadvantageous position. For his (Mr. Samuda's) part he should vote for the clause as it stood at that moment.
§ SIR HENRY HOLLAND
thought it would be unfair in a special case of this kind that the mouth of the shipowner should be closed, especially when they considered that the evidence was permissive and not compulsory. He should vote against the Amendment.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 177; Noes 40: Majority 137.
§ MR. RATHBONE
rose to Order. The next Amendment on the Paper was virtually the same as one which had already been proposed by the hon. Member for Derby (Mr. Plimsoll) and decided by the Committee. Last year it was thrown in their teeth that they defeated the Bill by making a large number of Amendments; but he now protested against their time 906 being wasted in dealing with a Resolution similar to one already fully discussed.
§ MR. D. JENKINS
said, the object of his Amendment was to have a compulsory survey of ships held without Government supervision.
said, the Amendment appeared to him to differ in one or two points from the one moved on the previous night when the Bill was in Committee by the hon. Member for Derby. This Amendment limited its operation to vessels over 100 tons. The Amendment of the hon. Member for Derby had no such limit. There were also other points of difference.
§ MR. D. JENKINS
then moved, in page 1, line 22, after "witness," insert—From and after the first day of January, one thousand eight hundred and seventy-seven, every British ship exceeding one hundred tons register shall be provided with a certificate of classification from one of the undermentioned Associations, namely, Lloyds'Registry of British and Foreign Shipping, the Liverpool Underwriters' Registry, the Bureau Veritas, or such other association or associations as the Board of Trade may from time to time sanction for the purpose; or a certificate of survey from a surveyor or surveyors appointed by the Local Marine Board of the district, such surveyors to be taken from a list approved of by the Board of Trade from time to time. Such certificate shall state the fitness of the vessel for the trade in which she is employed, and the period for which such certificate is granted; Provided always, That this shall not apply to vessels having passenger or other certificates from the Board of Trade, or to any vessel or vessels which the Board of Trade may from time to time exempt.The hon. Gentleman said, the security of life and property at sea was greater than it had been at any former period, but there were doubtless a comparatively few unseaworthy ships in our Mercantile Marine, and to prevent them from going to sea periodical surveys were required. The great argument against the compulsory survey of unclassed vessels was that it would drive what was called the low-class trades into the hands of foreigners; but the reply to that was that ships that were not entitled to a certificate of seaworthiness ought not to be afloat. He believed that the majority of the small shipowners of the country were in favour of the Amendment, and he had excluded vessels under 100 tons register, because they were, as a rule, engaged in river and coasting trade.
§ SIR CHARLES ADDERLEY
hoped that the Committee would not entertain the Amendment, which was in substance the same as that proposed by the hon. Member for Derby on Monday night. Another reason for not receiving it was that it had nothing to do with the clause in which it was proposed to be inserted. If agreed to it would inaugurate an entirely new class of local surveyors under the auspices of the Local Marine Boards.
§ MR. MACGREGOR
trusted the hon. Member would not press the Amendment to a division. The Committee had already given a decided opinion upon its principle, and he would point out that if Amendments of this kind were carried to a division it would take two or three years to get the Bill through Committee. The hon. Member (Mr. Jenkins) saw that the Committee was not disposed to go into the question again. He (Mr. Macgregor) would merely remark that in the Amendment of the hon. Member for Derby they had a suggestion to the effect that vessels of the Pacific and Oriental Company and the Cunard Steamship Company should be exempted from the compulsory survey; and why the other great companies—those who carried the Canadian mails and others—were not included he could not make out. He did not agree with the singling out of those companies for exemption, neither did he agree with the present Amendment, which would give the Bureau Veritas the power of assuming a certificate of classification as well as Lloyd's and the Liverpool Underwriters'Registry. They did not know much about the Bureau Veritas. The Committee had made a mistake, he thought, in not accepting the Amendment of the hon. Member for Derby.
§ MR. PALMER
said, it was desirable that legislation on this subject should not cease until provision was made for the survey of every sea-going vessel, and therefore in that respect this Bill was imperfect.
said, the number of ships belonging to the United Kingdom between 100 and 300 tons was 4,261, and at least half of these were already certified. It was most unreasonable to assert that it was impossible to have the remaining 2,000 vessels surveyed. He was afraid that the Bill, if passed in its present shape, would not get rid of the 908 agitation which had been going on in the country against the Mercantile Marine, but would have a tendency to perpetuate it.
§ MR. A. PEEL
said, the Amendment was the same in principle as that of the hon. Member for Derby, which had been rejected. He objected to the Amendment, because it would establish a system of bureaucracy which would be injurious to the Mercantile Marine. It would ultimately substitute for the principle which the Government desired to establish—namely, that of the responsibility of shipowners—a system of Government inspection.
§ Sir JOHN HAY
thought the Amendment would be a great improvement to the Bill, but it was not germane to the clause, and if the hon. Member now withdrew his Amendment and introduced it at a proper time he should support it.
§ MR. GOSCHEN
considered that the point involved in the Amendment could be better raised and discussed in another form.
§ Sir GEORGE BOWYER
said, that the Amendment and clause would require re-arranging before the Amendment was adopted.
implored the Committee not hastily to reject the Amendment that night. Its object was to enable the shipowners to have their ships surveyed before they went to sea, so that if any accident happened they would have it placed on record that their vessels were in a seaworthy condition. If that were not adopted the result would be that every seaport would swarm with informers spying after ships, and the shipowners would be in a worse condition than if the hon. Member for Derby's (Mr. Plimsoll's) proposal of compulsory Government survey were established.
§ MR. PLIMSOLL
said, he was not satisfied that the issue was fairly raised on Monday night. The fact that four shipowners had risen without the slightest concert to ask the House to let their ships be surveyed at a proper time, and when it could be done without inconvenience, marked a stage in the 909 debate which, ought not to have been ignored. In order to give the Government an opportunity of considering this significant aspect of question, he moved to report Progress.
§ THE CHANCELLOR OF THE EXCHEQUER
appealed to the Committee whether the proposal of the hon. Member for Derby was a reasonable one. The Amendment of the hon. Member for Falmouth was not applicable to the clause before the Committee, and he would suggest that he should be permitted to withdraw it, reserving to himself the power to bring it forward at a future period.
§ Mr. PLIMSOLL
said, if the Committee allowed the Amendment to be withdrawn he would withdraw his Motion.
§ Motion, by leave, withdrawn.
§ Amendment (Mr. D. Jenkins), by leave, withdrawn.
MR. MAC IVER
said, that he thought there was good reason for a Motion to report Progress, seeing that in a previous division every Member representing a seaport except two had voted with the minority. Time should be given to Members to apprehend the significance of this fact. He would therefore move to report Progress. ["No, no!"] He would not persevere against the wish of the Committee.
§ Clause agreed to.
§ Clause 4 (Obligation of shipowner to crew with respect to use of reasonable efforts to secure seaworthiness).
§ MR. NORWOOD moved, in page 2, line 9, to leave out "the master or," as he considered the owner should be responsible to the seamen, and not the master of the ship, for loss arising to them through unseaworthiness.
§ Amendment proposed, in page 2, line 9, to leave out the words "the master or."—(Mr. Norwood.)
§ SIR CHARLES ADDERLEY
said, the object of the clause was to give seamen the same redress and remedies which other workmen had. The relation of the shipowner and seamen was at common law the same as between other employers and employed, and this clause simply carried out that principle.
§ MR. SHAW LEFEVRE
thought there was great force in the desire to leave out these words, as the retention of them would be inconsistent with the language of Clause one of the Bill.
THE ATTORNEY GENERAL
supported the clause as it stood, and pointed out that the shipowner and the master were to use reasonable endeavours to keep the ship in a seaworthy condition, and if they did not do so they must be held responsible to the seamen.
§ Sir HENRY JAMES
said, that the master of the ship, according to the clause, would be liable to the master—in fact, he would have to sue himself. He thought it would be better to bring it up on report.
§ MR. NORWOOD
said, there was no question the captain of a ship had full power to pledge the credit of his owner, and he entirely agreed with the clause as far as the master's guarantee to the crew, but he took exception to it otherwise, and would persist in his Amendment to leave out the words, "the master or."
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 198; Noes 134: Majority 64.
§ Mr. RATHBONE (for Mr. HERSCHELL) moved, in page 2, line 14, after "agent," to insert "in the United Kingdom," observing that it would be most unjust to make a shipowner responsible for the acts of an agent who lived abroad.
§ SIR CHARLES ADDERLEY
resisted the Amendment, contending that the agent of the shipowner should be liable abroad, equally as at home, for all acts committed on behalf of the owner.
§ MR. NORWOOD
said, he thought the owner ought not to be held responsible for the acts of an agent except he had been bonâ fide appointed, and remained directly acting under his authority.
§ MR. PLIMSOLL
said, he thought it was more important to hold the agent abroad responsible than the agent at home.
§ Amendment, by leave, withdrawn.
MR. RATHBONE moved, in page 2, line 18, to insert—
Provided, That nothing in this section shall subject the owner of a ship to any liability by reason of the ship being sent to sea in an unseaworthy state, where, owing to special circumstances, the so sending thereof to sea is reasonable and justifiable.
§ SIR CHARLES ADDERLEY
did not consider the words necessary, but would not object to their insertion.
§ Amendment agreed to.
§ On Question, "That the clause, as amended, stand part of the Bill,"
The ATTORNEY GENERAL
said, his right hon. Friend who had charge of the Bill would look into the clause with the view of amending it to meet the objection of the hon. Member.
§ MR. SHAW LEFEVRE
said, that the objection to the clause was that there ought to be no contract as to seaworthiness between the owner and the master, although it was quite right there should be between the shipowner and the sailor. If the captain found that the ship was not seaworthy, it was his duty not to go to sea, or, if at sea, to put back.
§ SIR CHARLES ADDERLEY
said, that if a master joined a ship at the last moment he would have no remedy, and the greatest injustice might ensue without the provisions of this clause.
§ MR. SHAW LEFEVRE
rejoined that it was most undesirable that a master should join at the last moment, because it was his duty to see that everything was right before he went to sea.
§ SIR GEORGE BOWYER
pointed out that the clause would legalize a state of law which could not be maintained. It would place matters in a position like that of the guest who brought an action against his host because the chamber maid put him into damp sheets.
§ MR. RATHBONE
remarked that exceptional cases made bad law, and that it hardly ever happened that a captain was observed to go on board until the last moment.
§ Question put, and agreed to.
§ Committee report Progress; to sit again upon Monday next.