STATUTORY RULES.
1923. No. 85.
REGULATIONS UNDER THE NAVIGATION ACT 1912-1920.
I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Navigation Act 1912-1920, to come into operation on and from the first day of October, 1923.
Dated this fourth day of July, 1923.
FORSTER,
Governor-General.
By His Excellency’s Command,
AUSTIN CHAPMAN,
Minister of State for Trade and Customs.
NAVIGATION (COURTS OF MARINE INQUIRY) REGULATIONS.
Part I.—Preliminary.
Short title.
1. These Regulations may be cited as the Navigation (Courts of Marine Inquiry) Regulations.
Parts.
2. These Regulations are divided into Parts as follows:—
Part I.—Preliminary.
Part II.—Inquiries.
Part III.—Appeals and References.
Part IV.—Rehearings.
Part V.—Appointment of Assessors.
Part VI.—General.
Definitions.
3. In these Regulations, unless the contrary intention appears—
“Court” means a Court of Marine Inquiry established under the Act;
“Registrar” means the Registrar of a Court;
“The Minister” means the Minister of State for Trade and Customs;
“The Director” means the Director of Navigation for the Commonwealth;
“The Act” means the Navigation Act 1912-1920;
and any reference to a form shall be read as a reference to a form in the Schedule to these Regulations.
Compliance with Forms
4. Strict compliance with the forms in the Schedule to these Regulations shall not be required, and substantial compliance shall suffice for the purposes of these Regulations.
C.2609.—Price 5d.
Part II.—Inquiries.
Notice of inquiry.
5. Where the Minister requests a Court to make an inquiry, the Registrar shall serve or cause to be served—
(a) in the case of an inquiry as to a shipwreck, or a casualty affecting a ship or causing loss of life on or from a ship, upon the Director and the owner, master and officers of the ship in respect of which the inquiry is to be made; or
(b) in the case of an inquiry as to a charge of incompetency, unfitness, incapacity or misconduct, upon the Director and the master, mate, engineer, pilot or licensed pilot concerned; and
(c) in any case, upon such other persons as the Court directs,
a notice of inquiry in Form C.M.I.—1 or Form C.M.I.—2, as the case requires.
Right to appear.
6. Any person who satisfies the Court that he has an interest in the inquiry may appear, and any other person may, by leave of the Court, appear.
Parties to proceedings.
7. The Director and other persons upon whom a notice of inquiry is served, and any persons who may and do appear, shall be deemed to be parties to the proceedings before the Court.
Adjournment of inquiry to enable person charged to make defence.
8. Where a Court sits for the purpose of making an inquiry as to a charge of incompetency, unfitness, incapacity, or misconduct on the part of a master, mate, engineer, pilot or licensed pilot, and it appears to the Court that the person charged has not received notice of the charge in time to give him a reasonable opportunity of making a defence, the Court shall adjourn till such time as it thinks fit.
Proceedings on non-appearance.
9. Subject to the last preceding regulation the Court may, at the time and place appointed for making the inquiry, proceed with the inquiry, whether the parties, upon whom a notice of inquiry has been served, or any of them, are present or not.
Director to begin.
10.—(1.) The proceedings on the inquiry shall commence by the Director opening his case and then proceeding with the examination of his witnesses.
(2.) Each witness, after being examined by the Director, may be cross-examined by the other parties in such order as the Court directs, and may then be re-examined by the Director.
Order in which parties to be heard.
11.—(1.) When the examination of the witnesses produced by the Director has been concluded, each party to the inquiry may produce witnesses, or recall, for further examination, any of the witnesses who have already been examined, and generally adduce evidence.
(2.) The parties shall be heard and their witnesses examined, cross-examined, and re-examined in such order as the Court directs.
(3.) The Director may also produce and examine further witnesses, who may be cross-examined by the parties and re-examined by the Director.
Parties may address the Court.
12. When the whole of the evidence has been concluded, any of the parties who desire so to do may address the Court upon the evidence, and the Director may address the Court in reply upon the whole case.
Form of decision of Court on inquiry.
13.—(1.) The decision of the Court on an inquiry shall be in Form
C.M.I.—3.
(2.) Each member of a Court who concurs in the decision of the Court shall sign the decision, and each member who dissents shall sign the decision as a dissentient.
(3.) Each assessor assisting a Court shall, if he concurs in the decision of the Court, sign the decision, and if he dissents from the decision he shall state in writing to the Minister his dissent and the reasons therefor.
Observations by Court.
14. The Court, when forwarding to the Minister a copy of its decision in a case, may make, in relation to the case or its decision, such observations as it thinks fit.
Part III.—Appeals and References.
Notice of appeal.
15.—(1.) Where a ship-owner aggrieved by a refusal to grant a certificate of survey or of equipment or a safety certificate, or the master of a ship which has been ordered to be provisionally detained, desires to appeal to the Court, he shall file at the office of the Registrar of the Court nearest to the place in which the ship is a notice in Form C.M.I.—4.
(2.) Any person filing a notice in pursuance of the last preceding sub-regulation is, in this Part of these Regulations, referred to as the appellant.
Notice to parties.
16. The Registrar shall give notice, in Form C.M.I.—5, to the Director and the appellant, of the time and place fixed for the hearing of the appeal, and to the Director and the master of the ship of the time and place appointed for hearing a reference.
Copy of surveyor’s report to be forwarded to Registrar.
17. Upon receipt of a notice in pursuance of the last preceding regulation, the Director shall forward to the Registrar, for production as evidence at the hearing, an official copy of the report of the surveyor with respect to the ship which is the subject-matter of the appeal or reference.
Notice to complainant.
18. Where the appeal or reference is in respect of the detention of a ship after survey made on the complaint of any person (in this Part of these Regulations referred to as the complainant), the Director shall send to the complainant notice of the time and place appointed for the hearing.
Parties to appeals or references.
19.—(1.) The Director and the appellant, or, in the case of a reference, the Director and the master, shall be parties to the proceedings.
(2.) Any other person, upon entering an appearance, may, by permission of the Court, be made a party to the proceedings.
Director to begin.
20. At the hearing, the Director shall open his case and then call his witnesses, and shall then state, in writing, what order he requires the Court to make.
Complainant to follow.
21. The complainant, if he has appeared, shall, after the Director has stated his case, call his witnesses, and shall then state, in writing, what order he requires the Court to make.
Appellant to follow complainant.
22. The appellant, or, in the case of a reference, the master, shall, after the complainant has stated his case, call his witnesses, and shall then state, in writing, what order he requires the Court to make.
Director and complainant may call evidence in reply.
23. After the appellant, or, in the case of a reference, the master or owner, has stated his case, the Director and the complainant may, on cause shown to the satisfaction of the Court, call further witnesses in reply.
Order in which parties to address Court.
24. After all the witnesses have been examined, the Court shall first hear the appellant, or, in the case of a reference, the master or owner, then the complainant (if any), and afterwards the Director.
Order for release or detention.
25.—(1.) As soon as possible after the Court has reached its decision, the Court shall issue an order, in Form C.M.I.—6,—
(a) for the final detention of the ship, or her release either conditionally or unconditionally; or
(b) granting or refusing a certificate of survey or equipment or a safety certificate,
as the case requires.
(2.) The Court shall forward the order, together with the notes of the evidence given at the hearing, to the Minister.
Part IV.—Rehearings.
Regulations governing rehearings.
26. Where the Minister orders an inquiry to be reopened and reheard, the provisions of these Regulations relating to the notices to be given in connexion with, and the proceedings of, the original inquiry shall apply in relation to the rehearing.
Parties may be added.
27. The Court may, if it thinks fit, order any other person, other than the parties served with the notice of rehearing, to be added as a party to the proceedings for the purpose of the rehearing, on such terms as the Court thinks fit.
Copy of evidence of hearing to be admitted on re-hearing.
28. The evidence taken at the hearing may be proved before the Court at the rehearing by the production of a copy of the notes of the shorthand writer or other person authorized by the Court to take down the evidence at the inquiry.
Part V.—Appointment and Summoning of Assessors.
Appointment of Assessors.
29.—(1.) Any appointment of an assessor by the Governor-General shall be for a period of three years from the date of appointment, and an assessor shall be eligible for re-appointment.
(2.) The Solicitor-General of the Commonwealth shall keep a list of the persons appointed by the Governor-General to be assessors.
(3.) The Governor-General may at any time cancel the appointment of any assessor.
Classification of persons on list of assessors.
30. The persons appointed to be assessors shall be classified as follows:—
Class 1.—Mercantile Marine Masters.
(a) Persons having five years’ service as a master in the Merchant Service, of which one year must have been service in command of an Australian-trade or foreign-going sailing ship, with a certificate of competency;
(b) Persons having five years’ service as a master in the Merchant Service, of which two years must have been service in command of an Australian-trade or foreign-going steamship, with a certificate of competency.
Class 2.—Mercantile Marine Engineers.
Persons having five years’ service as an engineer in the Merchant Service, of which two years must have been as chief engineer of an Australian-trade or foreign-going steamship.
Class 3.—Persons having special skill or experience.
(a) Persons having such qualifications as are in the opinion of the Governor-General requisite for ordinary cases;
(b) Persons having such qualifications as are in the opinion of the Governor-General requisite for special cases.
Assessors to be summoned in rotation.
31. Subject to these Regulations assessors shall be summoned by the Solicitor-General from the list of assessors in order of rotation within each class mentioned in the last preceding regulation.
Director to inform Solicitor General when assessors required.
32. The Director shall inform the Solicitor-General when assessors are required, and shall state from which of the classes assessors ought, in his opinion, to be summoned, but the Director shall not request the summoning of any individual assessor.
Assessors to be summoned where question of cancelling or suspension of certificate of master, &c., involved.
33. Where an inquiry involves any question as to the cancelling or suspension of the certificate of a master, mate or engineer, or as to the unfitness, incapacity, incompetency or misconduct of a pilot or licensed pilot, there shall be summoned from the list of assessors not less than two assessors from Class 1 and Class 2 or from either of those classes.
Summoning of assessors.
34. Subject to the requirements of the last preceding regulation being complied with, and subject to any special appointment which the Governor-General thinks it expedient to make in any case where he considers that special circumstances warrant a departure from this regulation, assessors shall be summoned as follows:—
(a) Where the inquiry involves, or appears likely to involve the cancelling or suspension of a certificate of a master, or mate, but not of an engineer, at least two assessors shall be summoned from Class 1;
(b) Where the inquiry involves, or appears likely to involve the cancelling or suspension of the certificate of a master or mate of a sailing ship, one at least of the assessors shall be summoned from paragraph (a) of Class 1, and where the inquiry involves or appears likely to involve the cancelling or suspension of the certificate of a master or mate of a steam-ship, one at least of the assessors shall be summoned from paragraph (b) of Class 1; and
(c) Where the inquiry involves, or appears likely to involve the cancelling or suspension of the certificate of an engineer, one at least of the assessors shall be summoned from Class 2.
Summoning of assessor not to be questioned.
35. A summoning of any assessor by the Solicitor-General shall not be questioned on the ground that it was not in accordance with these Regulations.
Fees and allowances of assessors.
36.—(1.) Every assessor shall, for every day or portion of a day during which he is engaged in, or in attendance on, a Court, be paid the sum of Three guineas.
(2.) Every assessor required to travel more than fifty miles from his usual place of abode or business to attend on a Court shall be paid travelling allowances as follows:—
(a) Fares—
(i) if resident in a State other than that in which the Court sits—First class rail fare from the capital city in State of residence to place of sitting, and return;
(ii) if resident in the State in which the Court sits—First class rail fare from place of residence to place of sitting, and return.
(b) Travelling allowance, at the rate of One guinea per day, may also be allowed, such allowance to be inclusive of all incidentals when traveling, such as meals, cab fares, &c.
Part VI.—General.
Duties of Registrar.
37. The Registrar shall sign and issue all process of the Court, and have the custody of all records, minutes, and proceedings of the Court.
Seal of Court.
38. Each Court shall have a seal bearing an impression of the Commonwealth Coat of Arms and having inscribed thereon the words “Court of Marine Inquiry” with the name of the city or town where the Court is held.
All processes to be sealed.
39. The Registrar shall seal with the seal of the Court all process of the Court issued by him.
Minute book.
40. The Registrar shall keep a minute book in Form C.M.I.—7 in which he shall enter a minute of the decision or order of the Court as to every appeal, charge, complaint, inquiry or reference heard and determined by the Court under the Act.
Appearance by barrister or solicitor.
41. In every Court the parties other than the Director may appear personally or by such barristers or solicitors as by the laws and rules regulating the practice of the High Court or of the Supreme Court of a State are permitted to appear in the High Court or the Supreme Court, and the Director may appear personally or by an officer of the Commonwealth Navigation Service or by such barristers or solicitors.
Service of process.
42.—(1.) Service of any notice, subpœna, summons or other document or process under these Regulations shall be deemed good service if—
(a) it is made personally on the person to be served; or
(b) it is made at his last known place of abode or business, or at any address which he gives for service; or
(c) it is made on board any ship to which he belongs and is accompanied with a statement of the purport thereof to the person being or appearing to be in command or charge of the ship.
(2.) Service may be effected by posting the process in a prepaid registered letter addressed to the person to be served at such place as the service may be made under the last preceding sub-regulation.
(3.) Where process has been served, in accordance with this regulation, on any person charged with incompetency or misconduct (in this regulation referred to as the person charged), and the person charged is absent from the Commonwealth or cannot be found, the Registrar may place a copy of the process in an envelope addressed to the person charged, and send it and a notification of its contents to any owner or agent in the Commonwealth of the ship to which the person charged belongs with a request that it may be forwarded to him under cover.
(4.) If any such owner or agent cannot be found the Registrar may advertise the notice in the Gazette.
(5.) The Registrar shall attach to any notice of inquiry or notice of hearing of an appeal or reference served on the person charged a statement of the case upon which the Minister has requested the Court to make the inquiry.
Notice to produce documents.
43.—(1.) A party may give to any other party notice in writing to produce any documents (saving all just exceptions) relating to the subject-matter of the inquiry which are in the possession or under the control of the other party.
(2.) If the notice is not complied with, the party who gave the notice may give secondary evidence of the contents of the documents.
Notice to admit documents.
44. A party may give to any other party notice in writing to admit any documents (saving all just exceptions).
Summons to witness.
45. The Registrar may issue a subpœna in Form C.M.I.—8 or Form C.M.I.—9, as the case requires, summoning any person to attend at the Court to give evidence or to produce documents in an inquiry, appeal, reference or rehearing.
Allowances to witnesses.
46.—(1.) Any person summoned to attend a Court of Marine Inquiry as a witness at any inquiry, appeal, reference or rehearing shall be paid allowances in accordance with the scale set out in Schedule II., or, in special cases, as the Court may direct.
(2.) Any person summoned to appear as a party to any inquiry, appeal or rehearing may, at the discretion of the Court, be paid allowances in accordance with the scale set out in Schedule II., or as the Court may direct.
Proof of service.
47. The service of any notice, subpœna, summons, or other document or process may be proved by the oath or affidavit of the person by whom it was served.
Service of documents on, and action by Deputy Director.
48. Where by these Regulations any notice or other document or process is required to be served on the Director, or anything is required to be done by the Director, the notice or other document or process may be served on, or the thing may be done by, the Deputy Director in the State in which the inquiry is to be made or the appeal is to be heard.
Affidavits.
49. The provisions of Order 35 of the Rules of the High Court (being Statutory Rules 1910, No. 130) shall apply, as far as applicable, to all affidavits in the Court.
Adjournment of hearing.
50. The Court may adjourn the hearing of any inquiry, appeal or reference from time to time and from place to place.
Order for payment of costs.
51. An order for the payment of costs shall be in Form C.M.I.—10.
SCHEDULE I.
Form C.M.I.—1.
Commonwealth of Australia.
Navigation Act 1912-1920.
Notice of Inquiry.
(1) Here state place at which Court is established.
In the Court of Marine Inquiry (1)
In the matter of an Inquiry as to (2)
To (3)
(2) Here state matter as to which inquiry is to be made.
I hereby give you notice that the Court of Marine Inquiry will, on the day of , 19 , at the hour of o’clock in the noon, at the Court Room, situate at , make inquiry as to (2)
(3) Here state person to whom notice addressed.
I further give you notice to produce to the Court (your certificate, the log-books of the ship and) any (other) documents relevant to the inquiry which are in your possession or under your control.
Dated this day of , 19 .
Registrar.
(Seal of the Court.)
Form C.M.I.—2.
Commonwealth of Australia.
Navigation Act 1912-1920.
Notice of Inquiry.
(1) Here state place at which Court is established.
In the Court of Marine Inquiry (1)
In the matter of an Inquiry as to (2)
To (3)
(2) Here state matter as to which inquiry to be made.
I hereby give you notice that a charge of (incompetency or misconduct) has been laid against you by (4) on the ground that (5) and that the Court of Marine Inquiry will, on the day of , 19 , at the hour of o’clock in the noon, at the Court Room, situate at , make inquiry as to the said charge.
(3) Here state person to whom notice addressed.
Attached hereto is a statement of the case upon which the Minister of State for Trade and Customs has requested the Court to make the inquiry.
(4) Here state person laying the charge.
And I further give you notice to produce to the Court (your certificate, the log books of the ship and) any (other) documents relevant to the inquiry which are in your possession or under your control.
(5) Here state ground of charge.
Dated this day of , 19 .
Registrar.
(Seal of the Court.)
Form C.M.I.—3.
Commonwealth of Australia.
Navigation Act 1912-1920.
Decision of Court.
(1) Here state place at which Court established.
In the Court of Marine Inquiry (1)
In the matter of an Inquiry as to (2)
The Court, having carefully inquired as to (2) finds that (3)
(2) Here state matter as to which inquiry made.
Dated this day of , 19
Senior or only Member of Court.
Member.
Member.
(Seal of Court.)
(3) Here state the decision of the Court.
I dissent from the above-mentioned decision, and my written reasons for so dissenting are annexed hereto.
Member of Court.
concur in the above-mentioned decision.
Assessor.
Assessor.
Form C.M.I.—4.
Commonwealth of Australia.
Navigation Act 1912-1920.
Notice of Appeal.
(1) Here state ship in respect of which notice is given.
In the matter of (1)
To the Registrar of the Court of Marine Inquiry (2)
(2) Here state place at which Court established.
Take notice that I of the of the
steam ship of the port of do appeal from (3) sailing.
(3) Here state subject-matter of appeal.
The address at which all notices, documents, and process may be served on me is
Dated this day of , 19 .
Appellant.
Form C.M.I.—5.
Commonwealth of Australia.
Navigation Act 1912-1920.
Notice of Hearing of Appeal or Reference.
(1) Here state place at which Court established.
In the Court of Marine Inquiry (1)
In the matter of (2)
To (3)
(2) Here state subject-matter of appeal or reference.
I hereby give you notice that the Court of Marine Inquiry will meet on the day of , 19 , at the hour of o’clock in the noon, at the Court Room situate at , to hear the appeal of the above-mentioned matter.
(3) Here state person to whom notice addressed.
Dated this day of , 19
Registrar.
(Seal of the Court.)
Form C.M.I.—6.
Commonwealth of Australia.
Navigation Act 1912-1920.
Order of Court on Appeal or Reference.
(1) Here state place at which Court established.
In the Court of Marine Inquiry (1)
In the matter of (2)
This Court hereby orders (3)
(2) Here state subject-matter of appeal or reference.
Dated this day of , 19 .
Senior Member of Court.
(3) Here state terms of order.
(Seal of Court.)
Form C.M.I.—7.
Minute Book.—Court of Marine Inquiry.
(1) Here state place at which Court established.
Minute of Proceedings in the Court of Marine Inquiry (1)
Number of case. | Name of ship. | Names of | Notice of Inquiry, | Decision or Order of | Names of Members of Court and Assessors. | Date of Decision or Order. |
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Form C.M.I.—8.
Commonwealth of Australia.
Navigation Act 1912-1920.
Subpœna to Witness to Give Evidence.
(1) Here state place at which Court established.
In the Court of Marine Inquiry (l)
In the matter of (2)
To (3).
(2) Here state subject-matter of inquiry, appeal or reference.
You are hereby summoned to appear before the Court of Marine Inquiry at on the day of at the hour of o’clock in the noon, to give evidence in the above-mentioned matter and to continue in attendance until notified by the Court that your presence is no longer required.
(3) Here state person to whom subpœna issued.
Dated this day of , 19
Registrar.
(Seal of Court.)
Form C.M.I.—9.
Commonwealth of Australia.
Navigation Act 1912-1920.
Subpœna to Witness to Produce Documents.
(1) Here state place at which Court established.
In the Court of Marine Inquiry (1)
In the matter of (2)
To (3)
(2) Here state subject-matter of inquiry, appeal or reference.
You are hereby summoned to appear before the Court of Marine Inquiry at on the day of , 19 , at the hour of o’clock in the noon to produce the following documents (4)
(3) Here state person to whom subpœna is issued.
Dated this day of , 19 .
Registrar.
(4) Here state documents to be produced.
(Seal of Court.)
Form C.M.I.—10
Commonwealth of Australia.
Navigation Act 1912-1920.
Order for Payment of Costs
(1) Here state place at which Court established.
In the Court of Marine Inquiry (l)
In the matter of (2)
(2) Here state subject-matter of inquiry appeal or reference.
This Court hereby orders that the costs of the above-mentioned be paid by (or that all parties shall pay their own costs). And this Court assesses the said costs as follows:—
Dated this day of , 19
Senior Member of Court.
(Seal of Court.)
SCHEDULE II. Reg. 46.
Allowances to Witnesses.
(a) For Travelling.
To every witness or interpreter residing more than three miles from the place of sitting of the Court—the sum actually paid for fares both in going to and returning from the Court, but not in any case exceeding One shilling and sixpence for every mile required to be travelled.
Provided that in all cases, where practicable, the witness or interpreter shall travel by rail, tram, coach, or ship, and in such part of the train, vehicle, or vessel as is suited to his station in life.
(b) For Attendance at a Court.
To masters and chief engineers, also medical practitioners, civil engineers, and other professional men of equivalent standing when attending in a professional capacity, for each day of attendance—£1 1s.
Other witnesses—not including prisoners of the Crown—for each day of attendance—10s. 6d.
(c) For Detention.
To every witness or interpreter who may be necessarily detained, or who may be prevented from proceeding on his journey to his place of abode, either before or after attending the Court, from the date of detention up to the day of attending the Court or of departure (as the case may be) the same allowance as prescribed in paragraph (b) of this scale for Attendance at a Court
Printed and Published for the Government of the Commonwealth of Australia by Albert J. Mullett, Government Printer for the State of Victoria.