THE
MERCHANT SHIPPING ORDINANCE, 1960 (Ordinance
No. 11 of 1960) ENACTED
BY the Governor of the Colony of North Borneo with the advice and
consent of the Legislative Council follows:- PART
I Chapter
1 PRELIMINARY Short title, commencement and application. 1. (1)
This Ordinance may be cited as The Merchant Shipping
Ordinance, 1960. (2)
This Ordinance shall not come into operation unless and
until the Governor notifies by Proclamation that it is Her Majesty’s
pleasure not to disallow the same, and, subject to subsection (3) it
shall come into operation on such date as the Governor may appoint. (3)
A notification under subsection (2) may appoint different
dates in relation to different provisions or may appoint different
dates for the same provision for different purposes. (4)
Subject to such modifications or exceptions as may be
prescribed, the provisions of this Ordinance, other than Part IX, shall
apply to a ship registered or licensed in Sarawak or Brunei when within
North Borneo, to the same extent as they apply to a North Borneo Ship. (5)
(Repealed) Interpretation. 2. In this
Ordinance – “agreement” or “agreement with the crew” means the
agreement referred to in subsection (1) of section 19; “apprentice” means apprentice to the sea service; “coastal trade limits” means the limits specified
in Part A of the First Schedule; “coastal trade ship” means a ship which is
authorized to ply only within coastal trade limits; “collision regulations” means the regulations from
time to time in force under the provisions of section 418 of the
Principal Act; “consular
officer”, where used in relation to a foreign country, means the person
for the time being recognised by Her Majesty as the consul,
vice-consul, consular agent, or other person authorised to discharge
the duties of consul or vice-consul of that foreign country; “dangerous goods” includes any substance of a
dangerous nature; “Director”
means the Director of Marine; “explosive” has the same meaning as in the
Fire-arms and Explosive Ordinance [Ord. No. 17 of 1966.]; “fishing
boat” means a vessel of whatever size, and in whatever way propelled,
which is for the time being employed in sea fishing but save as
otherwise expressly provided does not include a vessel used for
catching fish otherwise than for profit; “foreign-going
ship” includes every ship employed in trading or going between some
place or places situate beyond the limits
prescribed for home-trade ships; “government surveyor” means a surveyor appointed
under the provisions of subsection (1) of section 130; “home trade limits” means the limits specified in
Part B of the First Schedule; “home trade ship” means a ship which is authorised
to ply only within home trade limits; “inspector” means an inspector appointed under
section 267; “international voyage” means a voyage from a port
in one country to a port in another country, either of those countries
being a country to which the Safety Convention applies, and “short
international voyage” means an international voyage – (a) in the course of which a ship is
not more than two hundred nautical miles from a port or place in which
the passengers and crew could be placed in safety; and (b) which
does not exceed six hundred nautical miles in length between the last
port of call in the country in which the voyage begins and the final
port of destination; so,
however, that for the purpose of the definitions contained in this
paragraph – (i) no
account shall be taken of any deviation by a ship from her intended
voyage due solely to stress of weather or any other circumstances that
neither the master nor the owner nor the charterer, if any, of the ship
could have prevented or forestalled; and (ii) every colony, overseas territory,
protectorate or other territory for whose international relations a
government that has accepted the Safety Convention is responsible, or
for which the United Nations are the administering authority, shall be
deemed to be a separate country; “legal personal representative” means any person
constituted executor, administrator, or other representative of a
deceased person by any probate, administration, or other instrument; “local trade limits” means the limits specified in
Part C of the First Schedule; “local trade ship” means a ship which is
authorised to ply only within local trade limits; “Malaysian
ship” has the same meaning as in the Merchant Shipping Ordinance 1952
of the Federation of Malaya; “master” includes every person, except a pilot,
having command or charge of any ship; “Mercantile
Marine Office” includes a mercantile marine sub-office; “Merchant
Shipping Acts” means the Merchant Shipping Acts from time to time in
force in the United Kingdom; “Minister”
means the Minister of Transport of the United Kingdom and includes,
when appropriate, references to the Board of Trade and the Minister of
Transport and Civil Aviation; and “Ministry” shall be construed
accordingly; “naval court” has the same meaning as in the
Merchant Shipping Acts; “North
Borneo licensed ship” means any vessel licensed under the regulations
made under section 277 of the Ordinance; “officer” when used in relation to a ship, means
any master, mate, engineer or engine-driver; “officer of customs” has the same meaning as in
the Customs Ordinance [Cap. 33.]; “passenger” means any person carried in a ship,
except - (a) a
person employed or engaged in any capacity on board the ship on the
business of the ship; (b) a person on board the ship either
in pursuance of the obligation laid upon the master to carry
shipwrecked, distressed or other persons, or by reason of any
circumstance that neither the master nor the owner nor the charterer,
if any, could have prevented or forestalled; and (c) a child
under one year of age; “passenger ship” means a ship which is constructed
for, or which is substantially or habitually (whether at regular or
irregular intervals) used for, carrying more than twelve passengers; “pilot” means any person not belonging to a ship,
who has the conduct thereof; “port” means a place as a port; “Port
Health Officer” includes the Director of Medical Services and any
officer for the time being performing the duties of a Port Health
Officer; “Port
Officer” means a person appointed as such for any port by the Governor
and, includes any person for the time being performing with the
authority and subject to the discretion of the Director in respect of
matters within the jurisdiction of the Director, or the State Director
in respect of matters within the jurisdiction of the State Director,
the duties of the Port Officer; “Principal
Act” means the Merchant Shipping Act, 1894; “radio rules” means the rules referred to in
subsection (1) of section 188; “report of character” means the report referred to
in section 37; “running agreement” means an agreement referred to
in paragraph (e) of section 21; “Safety
Convention” means the Convention signed on behalf of the United Kingdom
in London on the tenth day of June, 1948, for promoting safety of life
at sea; “Safety
Convention certificate” means a certificate issued in accordance with
the terms of the Safety Convention; “Safety
Convention country” means – (a) a
country the government of which has been declared by Her Majesty in
Council to have accepted the Safety Convention, and has not been so
declared to have denounced that Convention; (b) a territory to which it has been
so declared that the Safety Convention extends not being a territory to
which it has been so declared that the Convention has ceased to extend; “Safety
Convention ship” means a ship registered in a country to which the
Safety Convention applies; “salvor” means, in the
case of salvage services rendered by the officers or crew or part of
the crew of any ship belonging to Her Majesty, the person in command of
that ship; “seaman” includes every person (except masters,
pilots and apprentices duly indentured and registered) employed or
engaged in any capacity on board any ship; “ship” means any vessel other than – (a) a
vessel solely propelled by oars; (b) a
vessel which has been generally exempted from the provisions of this
Ordinance by the Governor under section 273; and (c) a
vessel which has been partially exempted from the provisions of this
Ordinance by the Governor under section 273; to the extent of such
exemption; “State
Director” means the Director of Ports and Harbours of the State of
Sabah; “Superintendent”
means the Superintendent of the Mercantile Marine Office and, subject
to the provisions of subsection (3) of section 18, includes an
Assistant Superintendent; “tidal water” means any part of the sea and any
part of a river within the ebb and flow of the tide at ordinary spring
tide; “ton” means a register ton except where otherwise
stated and “tonnage” shall be interpreted accordingly; “vessel” means anything constructed or used for
the carriage on water of persons or property. PART
II Chapter
2 RESTRICTION
OF TRADING IN NORTH BORNEO Certificate or
licence required by all ships trading in North Borneo. 3. (Deleted) PART
III MASTERS
AND SEAMEN Chapter
3 COMPETENCY OF MASTERS AND
CREW AND CERTIFICATES
THEREOF When officer
deemed duly certificated. 4. An officer shall not be deemed to
be duly certificated under this Ordinance unless he is the holder for
the time being of a valid certificate of competency granted under this
Ordinance, or under any written law in force in North Borneo
immediately before the commencement of this Ordinance, of a grade
appropriate to his station in the ship or of a higher grade: Provided
that any officer in a home trade, local trade or coastal trade ship
holding an equivalent certificate of competency issued by the
Government of Singapore, Malaya, Brunei or Sarawak shall be deemed to
be duly certificated as such for the purpose of this Ordinance. Grades of certificates of competency. 5. (1)
Certificates of competency shall be granted by or on
behalf of the Governor in accordance with this Ordinance for each of
the following grades – (a) master
of a home-trade ship, mate of a home-trade ship, master of a
local-trade ship, mate of a local-trade ship, master of a coastal-trade
ship and mate of a coastal-trade ship; (b) first-class
engine-driver, second-class engine-driver and third-class engine-driver. (2)
For the purposes of section 4, the certificates referred
to in each paragraph of subsection (1) shall be deemed to rank among
themselves in the order in which they are mentioned: Provided that a certificate
of competency as mate shall not entitle the holder thereof to go to sea
as master of any ship which is required by regulation under section 277
to be provided with a duly certificated master. Eye-sight tests. 6. No certificate of competency as
master or mate shall be delivered to any person under this Ordinance
unless and until he has undergone and passed the sight tests from time
to time approved in the United Kingdom by the Minister for the
examination of masters and mates in the mercantile marine or such other
sight test as may be approved by the Governor. Certificates
granted by competent British authorities recognised. 7. (1)
Every officer who holds a foreign going certificate issued
by a competent authority in the United Kingdom or in any country or in
any territory the certificates of which have been declared by Order in
Council made under section 102 of the Principal Act to have the same
force as if they were granted under that Act, shall be seemed to be
duly certificated under this Ordinance if his certificate is of a grade
appropriate to his station in the ship or of a higher grade. (2)
A certificate granted by any such authority as “only mate”
shall be deemed to be equivalent to that of first mate. Certificates of competency to be held by officers of various
ships. 8. (1)
Every British or North Borneo ship required by regulations
under section 277 to have certificated or authorized officers, when
going to sea from any place in North Borneo, shall be provided with
officers duly certificated or authorized under this Ordinance according
to the scale prescribed for such ship. (2)
The Governor, or a person designated by him in that
behalf, may declare any officer to be an authorized officer for the
purposes of this section: Provided that – (a) such
authorization shall subject to such conditions as may be endorsed
thereon be valid for a period of six months only, but may from time to
time be renewed in like manner and for a like maximum period; (b) before making any such declaration
as aforesaid, the Governor or other person designated by him shall
satisfy himself that the officer is competent to act as an authorized
officer; and (c) no
person shall be issued with such authorizations for a total period of
more than two and a half years. (3)
The master of every ship required by regulations under
section 277 to have certificated or authorized officers, leaving or
attempting to leave any port in North Borneo without having on board,
and entered on the register or articles of agreement, officers
possessing the prescribed certificates or authorizations shall be
guilty of an offence and shall be liable to a fine of one thousand
dollars; and the Port Officer may refuse port clearance in case of
non-compliance with the provisions of this section. Production of certificates of competency to Superintendent. 9. (1)
The master of every British or
North Borneo ship – (a)
on
signing the agreement with the crew before the Superintendent, shall
produce to him the certificates of competency which the officers of the
ship are by or under this Ordinance required to hold; and (b) in the case
of a running agreement, shall also, before the second and every
subsequent voyage, produce to the Superintendent the certificate of
competency of any officer then first engaged by him who is required by
this Ordinance to hold a certificate. (2)
In case the master of any ship fails to comply with the
requirements of this section, the ship may be detained until the
certificates are produced. Ship leaving without clearance. 10. If any ship leaves or attempts to leave
any port in North Borneo when port clearance has been refused under
this Part, the master thereof shall be guilty of an offence and shall
be liable to imprisonment for six months and a fine of one thousand
dollars. Uncertificated and unauthorised officers. 11. Any person who, having been engaged in
any of the capacities mentioned in this Chapter in any such ship as
aforesaid, goes to sea in that capacity without being entitled to and
in possession of the required certificate or authorization, and any
person who employs any person in any of the above capacities in such
ship without ascertaining that he is entitled to or possessed of such
certificate or authorization, shall be guilty of an offence and shall
be liable to a fine of five hundred dollars. Examination for certificates of competency. 12. (1) For
the purpose of granting certificates of competency under this Chapter
to persons desirous of obtaining such certificates, examinations shall
be held at such places and times as the Director may direct. (2)
The Chief Secretary may appoint, remove and reappoint
examiners to conduct the examinations and determine the remuneration of
those examiners, and may regulate the conduct of all the examinations
and the qualification of the applicants, and may do all such acts and
things as he thinks expedient for the purpose of the examinations. Forgery etc. of
certificate of competency. 13. Any person who – (a) makes,
assists in making or procures to be made any false representation for
the purpose of procuring, either for himself or for any other person, a
certificate of competency; (b) fraudulently uses a certificate or
copy of a certificate of competency which has been forged, altered,
cancelled or suspended, or to which he is not entitled; or (c) fraudulently
lends his certificate of competency, or allows it to be used by any
other person, shall
be guilty of an offence and shall be liable to imprisonment for three
years and a fine. Power of Governor to suspend or cancel certificates of
competency. 14. (1) The
Governor, in his discretion, may suspend or cancel the certificate of
any officer if such certificate was issued in North Borneo and if the
Governor is satisfied that such officer has been convicted of any
offence. (2)
The Governor may in his discretion, at any time direct the
re-issue and return of any certificate suspended or cancelled under
subsection (1), or may direct the grant, in place thereof, of a
certificate of the same or a lower grade. Chapter
4 APPRENTICESHIP
TO THE SEA SERVICE Assistance to be given by Superintendent. 15. The Superintendent shall give to persons
desirous of apprenticing boys to or requiring apprentices for the sea
service such assistance as may be in his power, and may receive from
those persons, such fees as may be prescribed. Special provisions as to apprenticeship. 16. (1) Every
indenture of apprenticeship shall be executed in duplicate in the
prescribed form and shall be exempt from stamp duty. (2)
Every indenture of apprenticeship made in North Borneo,
and every assignment or cancellation thereof, and, where the apprentice
bound dies or deserts, the fact of the death or desertion shall be
recorded. (3)
For the purpose of the record – (a) a person to whom an apprentice is
bound shall, within seven days of the execution of the indenture, take
or transmit to the Superintendent the indenture executed in duplicate,
and the Superintendent shall keep and record the one indenture and
endorse on the other the fact that it has been recorded and redeliver
it to the master of the apprentice; (b) the
master shall notify any assignment or cancellation of the indenture or
the death or desertion of the apprentice to the Superintendent, within
seven days of the occurrence, if it occurs within North Borneo or, as
soon as circumstances permit, if it occurs elsewhere. (4)
Any person who fails to comply with any requirement of
this section shall be guilty of an offence and shall be liable to a
fine of two hundred dollars. (5)
There shall be paid in respect of the recording of an
indenture under this section such fee as may be prescribed. Production of indenture to Superintendent before voyage in
foreign-going ship. 17. (1) The
master of a foreign-going ship shall, before carrying an apprentice to
sea from a port in North Borneo cause the apprentice to appear before
the Superintendent and shall produce to the Superintendent the
indenture by which the apprentice is bound and every assignment thereof. (2)
The name of the apprentice, with the date of the indenture
and of the assignment thereof, if any, and the names of the ports at
which the same have been recorded, shall be entered on the agreement
with the crew. (3)
Any master who fails, without reasonable cause, to comply
with any requirement of this section shall be guilty of an offence and
shall be liable to a fine of one hundred dollars. Chapter
5 ENGAGEMENT
OF CREW AND GENERAL Marine office. 18. (1) The
Governor may appoint a place, to be called “the Marine Office”, and
other places to be called “Marine Sub-Offices”, at which places shall
be conducted all the business within North Borneo connected with the
engagement and discharge in North Borneo of seamen on board British
ships and North Borneo ships and foreign ships whose flag is not
represented by a consular officer resident in North Borneo. (2)
The Director shall be the Superintendent of the Marine
Office and he may appoint Assistant Superintendents in any Marine
Sub-Office. (3)
Any act done by, or to or before, an Assistant
Superintendent within the powers conferred upon him by the
Superintendent shall have the same effect as if done by, to or before,
the Superintendent. (4)
(a) No
seaman shall, except with the sanction of the Superintendent, be
engaged to do duty on board a British, North Borneo or foreign ship
elsewhere than at the Marine Office, save that in the case of a foreign
ship a seaman may be engaged before a consular officer resident in
North Borneo representing the flag of such foreign ship. (b) No seaman shall be engaged unless he has
produced to the Superintendent a certificate of discharge from such
seaman’s last ship, or failing production thereof such seaman has given
a satisfactory explanation to the Superintendent of the cause of such
non-production. (c) Any person engaging a seaman in
contravention of this subsection shall be guilty of an offence and
shall be liable to a fine of five hundred dollars. Agreement with crew. 19. (1) The
master of every North Borneo ship, except ships of less than
twenty-five tons exclusively employed in trading within such limits as
may be prescribed, shall enter into an agreement in accordance with
this Chapter with every seaman whom he carries to sea from any port in
North Borneo. (2)
If a master of a North Borneo ship carries any seaman to
sea without entering into an agreement with him in accordance with this
Chapter, the master in the case of a foreign-going ship, and the master
and owner in the case of any other ship, shall be guilty of an offence
and shall be liable to a fine of five hundred dollars. Form, period and conditions of agreement with crew. 20. (1) Every
agreement with the crew entered into in North Borneo shall be in the
prescribed form, and shall be dated at the time of the first signature
thereof, and shall be signed by the master before a seaman signs the
same. (2)
The agreement with the crew shall contain as terms thereof
the following particulars – (a) either
the nature and, as far as practicable, the duration of the intended
voyage or engagement, or the maximum period of the voyage or
engagement, and the places or parts of the
world, if any, to which the voyage or engagement is not to extend; (b) the
number and description of the crew, specifying how many are engaged as
sailors; (c) the
time at which each seaman is to be on board or to begin work; (d) the
capacity in which each seaman is to serve; (e) the
amount of wages which each seaman is to receive; (f) a scale
of the provisions which are to be furnished to each seaman; (g) any regulations as to conduct on
board and as to fines, short allowance of provisions or other lawful
punishment for misconduct which have been approved by the Governor in
Council as regulations proper to be adopted and which the parties agree
to adopt. (3)
The agreement with the crew shall be so framed as to admit
of such stipulations, not being contrary to law, as may be agreed
between the master and seaman in any case. (4)
If the master of a ship registered at a port not in North
Borneo, has an agreement with the crew made in due form according to
the law of that port or of the port in which her crew were engaged, and
engages seamen individually in North Borneo, such seamen may sign the
agreement so made, and it shall not then be necessary for them to sign
an agreement in the prescribed form. Special provisions as to agreement with crew of foreign-going
ship. 21. The following provisions shall have
effect with respect to the agreements with the crew made in North
Borneo in the case of foreign-going ships – (a) the
agreement shall, subject to the provisions of this Ordinance as to
substitutes, be signed by each seaman in the presence of the
Superintendent; (b) the Superintendent shall cause the
agreement to be read over and explained to each seaman, or otherwise
ascertain that each seaman understands the same before he signs it, and
shall attest each signature; (c) when the crew is first engaged the
agreement shall be signed in duplicate, and one part shall be retained
by the Superintendent, and the other shall be delivered to the master
and shall contain a special place or form for the descriptions and
signatures of substitutes or persons engaged subsequently to the first
departure of the ship; (d) when a substitute is engaged in
the place of a seaman who duly signed the agreement and whose services
are, within twenty-four hours before the ship puts to sea, lost by
death, desertion or other unforeseen cause, the engagement shall, when
practicable, be made before the Superintendent and, when not
practicable, the master shall, before the ship puts to sea, if
practicable, and if not, as soon afterwards as possible, cause the
agreement to be read over and explained to the substitute, and the
substitute shall thereupon sign the same in the presence of a witness,
and the witness shall attest the signature; (e) the agreement may be made for a
voyage or, if the voyages of the ship average less than six months in
duration, may be made to extend over two or more voyages, and
agreements so made to extend over two or more voyages shall be known as
“running agreements”; (f) running agreements shall not be
for a longer period than six months, or the first arrival of the ship
at her port of destination in North Borneo after the expiration of that
period, or the discharge of cargo consequent on that arrival; (g) on every return to a port in North
Borneo before the final termination of a running agreement the master
shall make, on the agreement, an endorsement as to the engagement or
discharge of seaman, either that no engagements or discharges have been
made or are intended to be made before the ship leaves port, or that
all those made have been made as required by law and, if a master
wilfully makes a false statement in any such endorsement, he shall be
guilty of an offence and shall be liable to a fine of five hundred
dollars; (h) the
master shall deliver the running agreement so endorsed to the
Superintendent and that officer shall, if
the provisions of this Chapter relating to agreements have been
complied with, sign the endorsement and return the agreement to the
master. Special provisions as to agreement with crew of a ship other
than a foreign-going ship. 22. The following provisions shall have
effect with respect to the agreements made with the crew in North
Borneo of a ship other than a foreign-going ship for which an agreement
with the crew is required under this Chapter – (a) agreements
may be made either for the service in a particular ship or for service
in two or more ships belonging to the same owner, but, in the latter
case, the nature of the service shall be specified in the agreement; (b) crews or individual seaman shall
be engaged before the Superintendent in the same manner as they are
required to be engaged for foreign-going ships; but if the engagement
is not made, the master shall, if practicable, before the ship puts to
sea, and, if not, as soon after as possible, cause the agreement to be
read and explained to each seaman; and the seaman shall thereupon sign
the same in the presence of a witness, and the witness shall attest the
signature; (c) an
agreement for service in two or more ships belonging to the same owner
may be made by the owner instead of by the master; and the provisions
of this Ordinance with respect to the making of the agreement shall
apply accordingly; (d) agreements
shall not be for a longer period than six months, or the first arrival
of the ship at her final port of destination in North Borneo after the
expiration of the period, or the discharge of cargo consequent on that
arrival: Provided
that the owner or his agent may enter into time agreements in the
prescribed form with individual seamen to serve in any one of more
ships belonging to such owner, and those agreements need not expire at
the time of the ship’s agreement with the crew. Fees upon engagement and discharge. 23. (1) The fees payable upon all engagements and
discharges shall be such as may be prescribed. (2)
The Superintendent shall cause a scale of such fees,
together with a copy of this section, to be conspicuously exhibited in
the Marine Office and may require the payment of such fees before
proceeding with any engagement or discharge. (3)
The master of a ship engaging or discharging any seaman at
the Marine office shall pay to the Superintendent the whole of the
prescribed fees. Changes in crew of foreign-going ships to be reported. 24. (1) The
master of every foreign-going ship whose crew has been engaged before
the Superintendent shall, before finally leaving North Borneo, sign and
send to the nearest Superintendent a full and accurate statement, in
the prescribed form of every change which takes place in his crew
before finally leaving North Borneo, and that statement shall be
admissible in evidence in the manner provided by this Ordinance. (2)
Any master who fails, without reasonable cause, to comply
with this section shall be guilty of an offence and shall be liable to
a fine of one hundred dollars. Certificates as to agreement with crew of North Borneo
foreign-going ships. 25. (1) In
the case of a foreign-going North Borneo ship, on the due execution of
an agreement with the crew in accordance with this Chapter, and also,
where the agreement is a running agreement, on compliance by the
master, before the second and every subsequent voyage made after the
first commencement of the agreement, with the provisions of this
Chapter respecting that agreement, the Superintendent shall grant the
master of the ship a certificate to that effect. (2)
The master of every foreign-going North Borneo ship shall,
before proceeding to sea, produce to the Superintendent that
certificate, and any such ship may be detained until the conditions
precedent to the grant of such certificate exist. (3)
The master of every foreign-going North Borneo ship, shall within forty-eight hours after the
ship’s arrival at her final port of destination in North Borneo or upon
the discharge of the crew, whichever first happens, deliver his
agreement with the crew to the Superintendent and that officer shall
give the master a certificate of that delivery. (4)
Any such master who fails, without reasonable cause, so to
deliver the agreement with the crew shall be guilty of an offence and
shall be liable to a fine of one hundred dollars. Certificate as to agreement with a crew of a North Borneo
ship other than a foreign-going ship. 26. (1) The
owner or master of a North Borneo ship other than a foreign-going ship
shall, within twenty-one days after the expiration of any agreement
with the crew or within forty-eight hours of her arrival in North
Borneo whichever first happens, deliver or transmit to the
Superintendent in North Borneo such agreement. (2)
The Superintendent, on receiving such agreement, shall
give the owner or master of the ship a certificate to that effect, and
the ship may be detained until the conditions precedent to the grant of
such certificate exist. (3)
Any such owner or master who fails, without reasonable
cause, to comply with this section shall be guilty of an offence and
shall be liable to a fine of one hundred dollars. Copy of agreement to be made accessible to the crew. 27. (1) The
master of every North Borneo ship to which the provisions of section 19
apply shall, at the commencement of every voyage or engagement, cause a
legible copy of the agreement with the crew, omitting the signatures,
to be posted up in some part of the ship which is accessible to the
crew. (2)
Any master who fails, without reasonable cause, to comply
with this section shall be guilty of an offence and shall be liable to
a fine of one hundred dollars. Forgery, etc. or agreement with crew. 28. (1) Any
person who fraudulently alters, makes any false entry in or delivers a
false copy of any agreement with the crew shall be guilty of an offence
and shall be liable to imprisonment for two years and a fine of five
thousand dollars. (2)
Any person who assists in committing, or procures to be
committed, any such offence shall be guilty of an offence and shall be
liable to imprisonment for two years and a fine of five thousand
dollars. Alterations in agreement with crew. 29. Every erasure, interlineations or
alteration in any agreement with the crew, except additions made for
the purpose of shipping substitutes or persons engaged after the first
departure of the ship, shall be wholly inoperative unless proved to
have been made, with the consent of all persons interested in the
erasure, interlineations or alteration, by the written attestation – (a) in any part of the Commonwealth,
of some shipping master, port officer, Superintendent, magistrate,
officer of customs, or other public functionary; or (b) elsewhere,
of a British consular officer, or where there is no such officer, of
two respectable British merchants. Seaman not to be bound to produce agreement. 30. In any legal or other proceeding, a
seaman may bring forward evidence to prove the contents of any
agreements with the crew or otherwise to support his case without
producing, or giving notice to produce, the agreement or any copy
thereof. Chapter
6 AGREEMENTS
WITH LOCAL SEAMAN 31. (1) In
the case of seamen engaged in North Borneo who are domiciled in North
Borneo, Sarawak or Brunei when it is agreed that the engagement of any
such seaman shall end at any port not in North Borneo, the agreement
shall contain such stipulations as may be prescribed. (2)
Every such stipulation shall be signed by the owner of the
vessel or by the master on his behalf. Engagements between masters of foreign ships and local seamen. 32. (1) When
the master of a foreign ship being at any port in North Borneo engages
any seaman who is domiciled in North Borneo, Sarawak, or Brunei to
proceed to any port not in North Borneo, he shall, save in the
circumstances mentioned in subsection (4) of section 20, enter into an
agreement with such seaman, and the agreement shall be made before the
Superintendent in the manner hereinbefore provided for the making of
agreements in the case of foreign-going ships. (2)
All the provisions of section 31 respecting the
stipulations to be contained in such agreements, and the making and
signing of the same, shall be applicable to the engagement of such
seaman. (3)
The master of such foreign ship shall give to the
Superintendent a bond with the security of some approved person
resident in North Borneo for an amount calculated at the rate of one
hundred dollars for every such seaman and conditioned for the due
performance of the agreement and the prescribed stipulations and for
the repayment to the Government of all expenses which it may incur in
respect of any such seaman who is discharged or left behind at any port
out of North Borneo and becomes distressed and is relieved under the
provisions of the Merchant Shipping Acts. Fees payable in respect of such engagement. 33. The fees prescribed by virtue of the
provisions of section 23 shall be payable in respect of every such
engagement. Penalty for breach of sections 31 and 32. 34. If any seaman who is domiciled in North
Borneo Sarawak or Brunei is engaged by the master of any foreign ship
otherwise than in accordance with the provisions of sections 31 and 32,
the master shall be guilty of an offence and shall be liable to a fine
of one hundred dollars for every such seaman so engaged. Inspection of foreign ships in connection with agreement of
local seamen. 35. The Superintendent may enter on board
any foreign ship for the purpose of ascertaining that the requirements
of section 32 have been complied with, in respect of any seaman
domiciled in North Borneo, Sarawak or Brunei who has been engaged in
North Borneo to proceed in such ship to any port not in North Borneo;
and for such purposed the Superintendent shall have all the powers of
an Inspector under this Ordinance. Chapter
7 DISCHARGE
OF SEAMEN Procedure on
discharge and provision for seaman left behind or remaining in North
Borneo. 36. (1) No
master shall discharge in North Borneo any seaman from any British,
North Borneo or foreign ship without the sanction of the Superintendent
or of the consular officer, if any, representing the nation to which
such ship belongs, and unless due provision is made for the subsistence
and maintenance of such seaman to the satisfaction of the
Superintendent in the case of a British or North Borneo ship or a
foreign ship whose flag is not represented in North Borneo by a
consular officer, or to the satisfaction of a consular officer in the
case of a foreign ship whose flag is so represented; and any master who
discharges a seaman in contravention of this subsection shall be guilty
of an offence and shall be liable to a fine of five hundred dollars: Provided that no such
provision shall be necessary in respect of any seaman who was engaged
in North Borneo or any seaman who, being a British subject domiciled in
North Borneo is discharged in accordance with the terms of his
agreement. (2)
No seaman shall, except with the sanction of the
Superintendent be discharged from any British or North Borneo ship of
foreign ship whose flag is not represented by a consular officer
resident in North Borneo, elsewhere than at the Marine Office. (3)
Whenever any seaman is discharged at the Marine Office,
from any ship within North Borneo, the master of such ship shall give
to such seaman at the time of such discharge a written certificate,
specifying the time and nature of service, and the time and place of
discharge, of such seaman, signed by himself, and shall give him a true
account in writing of his wages and all deductions therefrom;
and if the master fails to do so he shall be guilty of an offence and
shall be liable to a fine of five hundred dollars. (4)
The master shall also, upon the discharge of every
certificated officer whose certificate of competency has been delivered
to and retained by him, return the certificate to the officer, and, if
without reasonable cause, he fails so to do shall be guilty of an
offence and shall be liable to a fine of two hundred dollars. (5)
Any master or any other person belonging to any British or
Sarawak ship who wrongfully forces on shore and leaves behind, or
otherwise wilfully and wrongfully leaves behind in North Borneo any
seaman or apprentice belonging to such ship before the completion of
the voyage for which such seaman or apprentice was engaged, shall be
guilty of an offence and shall be liable to imprisonment for six months
and a fine of one thousand dollars. Report of seamen’s character. 37. (1) When
a seaman is discharged before the Superintendent, the master shall make
and sign, in the prescribed form, a report of the conduct, character
and qualifications of the seaman discharged, or may state in that form
that he declines to give any opinion upon such particulars or upon any
of them. (2)
The Superintendent before whom such discharge is made
shall, if the seaman desires, give to him
or endorse on his discharge a copy of such report. False or forged certificate of discharge or report of
character. 38. Any person who – (a) makes a false report of character
under this Ordinance, knowing the same to be false; (b) forges
or fraudulently alters any certificate of discharge or report of
character or a copy of a report of character; (c) assists
in committing or procures to be committed any such offence as
aforesaid; or (d) fraudulently
uses any certificate of discharge or report of character or copy of a
report of character which is forged or altered or does not belong to
him, shall
be guilty of an offence and shall be liable to imprisonment for two
years and a fine of five thousand dollars. Protection from process. 39. No seaman who has been engaged to do
duty on any ship in compliance with this Ordinance shall, during the
time for which he is engaged, be liable to be arrested on civil
process, unless the debt or demand exceeds the sum of five hundred
dollars: Provided that the term
“seaman” in this section means a person who has, within the space of
six months previously, served on board a ship for wages as a seaman,
and that the protection from arrest hereby granted shall not be held to
extend to any person not coming within such definition, or in any case
to any officer of the ship. Relief of distressed seamen. 40. (1) All
expenses incurred under the provisions of the Merchant Shipping Acts or
any regulation made thereunder or under section 277 in the relief of
distressed seaman who, at
the time of such relief being granted, are domiciled in North Borneo
and all expenses incurred in the United Kingdom in relieving and
returning to North Borneo all such distressed seamen shall be borne by
the revenue of the Federation. (2)
The Governor may order the payment out of the general
revenue of all expenses incurred in North Borneo in and about the
relief and repatriation of such seamen as aforesaid under the
provisions of the merchant Shipping Acts or of any regulations made
under those Acts or under section 277. (3)
The Governor may order the repayment out of the general of
all sums expended under the provisions of the Merchant Shipping Acts by
the United Kingdom Government, or by the Shipwrecked Mariners Society,
or by the Government of any country of the Commonwealth, or by any
British consular officer in any foreign country, in and about the
relief and repatriation of such seamen as aforesaid, and such sums
shall be refunded in such manner as the Governor may think fit, or as a
Secretary of State may direct. Chapter
8 PAYMENT
OF WAGES Payment of wages before Superintendent. 41. (1) Where
a seaman is discharged before the Superintendent, he shall receive his
wages through or in the presence of the Superintendent, unless a
competent court otherwise directs. (2)
If in such a case the owner or master of a ship pays the
seamen’s wages within North Borneo in any other manner, he shall be
guilty of an offence and shall be liable to a fine of one hundred
dollars. Master to deliver account of wages. 42. (1) The
master of every ship shall, before paying off or discharging a seaman
in North Borneo, deliver at the time and in the manner provided by this
Ordinance a full and true account in the prescribed form, of the
seaman’s wages, and of all deductions to be made therefrom
on any account whatever. (2)
Such account shall be delivered – (a) where the seaman is not to be
discharged before the Superintendent to the seaman himself not less
than twenty-four hours before his discharge or payment off; and (b) where the seaman is to be
discharged before the Superintendent either to the seaman himself at of
before the time of his leaving the ship, or to the Superintendent not
less than twenty-four hours before the discharge or payment off. (3)
Any master of a ship who
fails, without reasonable cause, to comply with this section shall be
guilty of an offence and shall be liable to a fine of one hundred
dollars. Deductions from wages. 43. (1) A deduction from the wages of a seaman paid off
or discharged in North Borneo shall not be allowed unless it is
included in the account delivered in pursuance of section 42 except in
respect of a matter happening after such delivery. (2)
The master shall, during the voyage, enter the various
matters in respect of which the deductions are made, with the amounts
of the respective deductions, as they occur, in a book to be kept for
that purpose, and shall, if required, produce the book at the time of
the payment of wages, and also upon the hearing before any competent
authority of any complaint or question relating to that payment. Notice of disrating of seaman. 44. (1) Where
the master of a North Borneo ship disrates
a seaman he shall forthwith enter, or cause to be entered, in the
official log book a statement of the disrating,
and shall furnish the seaman with a copy of the entry. (2)
Any reduction of wages, consequent on the disrating, shall not take effect until the entry
has been so made and the copy so furnished. (3)
Any reduction of wages consequent on the disrating of a seaman shall be deemed to be a
deduction from wages within the meaning of sections 42 and 43. Time of payment of wages for foreign-going ships. 45. In the case of a foreign-going British
ship registered in, trading with or being in North Borneo other than a
ship employed on a voyage for which seaman by the terms of their
agreement are wholly compensated by a share in the profits of the
adventure – (a) the owner or master of the ship
shall pay to each seaman on account, at the time when he lawfully
leaves the ship at the end of his engagement, one-fourth of the balance
of wages due to him, and shall pay to him the remainder of his wages,
within two clear days, exclusive of any Sunday, Public or Bank
Holidays, after he so leaves the ship; (b) if the
seaman consents, the final settlement of his wages may be left to the
Superintendent and the receipt of that officer shall in that case
operate as if it were a release given by the seaman in accordance with
this Chapter; (c) in the event of the seaman’s wages
or any part thereof not being paid or settled as in this section
mentioned, then, unless the delay is due to the act or default of the
seaman, or to any reasonable dispute as to liability, or to any other
cause not being the wrongful act or default of the owner or master, the
seaman’s wages shall continue to run and be payable until the time of
the final settlement thereof. Time of payment of wages for North Borneo ship other than a
foreign-going ship. 46. (1) The master or owner of every North Borneo ship
other than a foreign-going ship shall pay to every seaman his wages
within two days after the termination of the agreement with the crew,
or at the time when the seaman is discharged, whichever first happens. (2)
If a master or owner fails without reasonable cause to
make payment at that time, he shall pay to the seaman a sum not
exceeding the amount of two days’ pay for each of the days during which
payment is delayed beyond that time, but the sum payable shall not
exceed ten days’ double pay. (3)
Any sum payable under this section may be recovered as
wages. Settlement of wages. 47. (1) Where
a seaman is discharged from a North Borneo ship and the settlement of
his wages completed before the Superintendent he shall sign in the
presence of the Superintendent a release of all claims in respect of
the past voyage or engagement; and the release shall also be signed by
the master or owner of the ship and attested by the Superintendent. (2)
The release so signed and attested shall operate as a
mutual discharge and settlement of all demands between the parties
thereto in respect of the past voyage or engagement. (3)
The release shall be retained by the Superintendent and,
on production from his custody, shall be admissible in evidence in the
manner provided by this Ordinance. (4)
Where the settlement of a seaman’s wages is by this
Chapter required to be completed through or in the presence of the
Superintendent, no payment, receipt or settlement made otherwise than
in accordance with this Chapter shall operate as, or be admitted as,
evidence of the release or satisfaction of any claim. (5)
Upon any payment being made by a master before the
Superintendent, the Superintendent shall, if required, sign and give to
the master a statement of the whole amount so paid; and the statement
shall, as between the master and his employer, be admissible as
evidence that the master has made the payments therein mentioned. (6)
A seaman may except from the release signed by him under
this section any specified claim or demand against the master or owner
of the ship, and a note to any claim or demand so excepted shall be
entered upon the release. (7)
Such release shall not operate as a discharge or
settlement of any claim or demand so noted, nor shall subsection (4)
apply to any payment, receipt or settlement made with respect to any
such claim or demand. Decision of
questions by Superintendent. 48. (1) Where
a question as to wages is raised before the Superintendent between the
master or owner of a ship and a seaman or apprentice, and the amount in
question does not exceed fifty dollars, the Superintendent may, on the
application of either party, adjudicate, and the decision of the
Superintendent in the matter shall be final: Provided that if the
Superintendent is of the opinion that the question is one which ought
to be decided by a court of law, he may refuse to decide it. (2)
Where any question, of whatever nature and whatever the
amount in dispute, between a master or owner and any of his crew is
raised before a Superintendent and both parties agree in writing to
submit the same to him, the Superintendent shall hear and decide the
question so submitted. (3)
An award made by him upon the submission shall be
conclusive as to the rights of the parties and the submission or award
shall not require a stamp; and a document purporting to be the
submission or award shall admissible as evidence thereof. Power of Superintendent to require production of ship’s
papers. 49. (1) In
any proceeding under this Ordinance before the Superintendent relating
to the wages, claims or discharge of a seaman, the Superintendent may
require the owner, or his agent, or the master, or any mate or other
member of the crew to produce any log book, paper or other document in
his possession or power relating to a mater in question in the
proceeding; and may require the attendance of and examine any of those
persons, being then at or near the place, on the matter. (2)
Any person so required who fails, without reasonable
cause, to comply with the requisition, shall be guilty of an offence
and liable for each offence to a fine of five hundred dollars. Rules as to
payment of seamen in currency other than that mentioned in agreement. 50. Where a seaman has agreed with the
master of a North Borneo ship for payment of his wages in local
currency or any other currency, any payment of, or on account of, his
wages, if made in any other currency than that stated in the agreement,
shall, notwithstanding anything in the agreement, be made at the rate
of exchange for the money stated in the agreement, for the time bsing current at the place where the payment is
made. Chapter
9 ADVANCE
AND ALLOTMENT OF WAGES Advances
restricted. 51. (1) Where
an agreement with the crew is required to be made in a prescribed form – (a) the agreement may contain a stipulation
for payment to or on behalf of the seaman, conditionally on his going
to sea in pursuance of the agreement, of a sum not exceeding the amount
of one month’s wages payable to the seaman under the agreement; and (b) stipulations
for the allotment of a seaman’s wages may be made in accordance with
this Chapter. (2)
Save as aforesaid an agreement by or on behalf of the
employer of a seaman for the payment of money to or on behalf of the
seaman conditionally on his going to sea from any port in North Borneo
shall be void, and any money paid in satisfaction or in respect of any
such agreement shall not be deducted from the seaman’s wages, and a
person shall not have any right of action, suit or set-off against the
seaman or his assignee in respect of any money so paid or purporting to
have been so paid. Regulations as to allotment notes. 52. (1) Any
stipulation made under section 51 by a seaman at the commencement of a
voyage for the allotment of any part of his wages during his absence
shall be inserted in the agreement with the crew, and shall state the
amounts and times of the payments to be made. (2)
Where the agreement is required to be made in a prescribed
form, the seaman may require a stipulation to be inserted in the
agreement for the allotment, by means of an allotment note, of any
part, not exceeding one-half, of his wages in favour either of a near
relative or of a saving bank. (3)
Allotment notes shall be in such form as may be prescribed. (4)
For the purposes of the provisions of this Ordinance with
respect to allotment notes – (a) “near
relative” means one of the following persons, namely, the wife, father,
mother, grandfather, grandmother, child, grandchild, brother or sister
of the seaman; and (b) “saving
bank” means a savings bank, approved by the Director. (5)
In order to give effect to the provisions of this section,
the Superintendent before whom a seaman is engaged shall, after the
seaman has signed the agreement, inquire of the seaman whether he
requires a stipulation for the allotment of his wages by means of an
allotment note, and if the seaman requires such a stipulation, shall
insert the stipulation in the agreement with the crew, and any such
stipulation shall be deemed to have been agreed to by the master. Allotment through savings banks. 53. (1) An allotment in favour of a savings bank shall be
made in favour of such persons and carried into effect in such manner
as may be prescribed. (2)
The sum received by a savings bank in pursuance of an
allotment shall be paid out only on an application made through the
Superintendent by the seaman himself, or, in case of his death, by some
person to whom his property, if under one thousand dollars in value,
may be paid under this part. Master to give facilities to seamen for remitting wages. 54. (1) Where
the balance of wages due to a seaman belonging to a North Borneo ship
is more than one hundred dollars, and the seaman expresses to the
master of the ship, while the ship is in North Borneo his desire to
have facilities afforded to him for remitting all or any part of the
balance to a savings bank, or to a near relative in whose favour an
allotment note is made, the master shall give to the seaman all
reasonable facilities for so doing so far as regards so much of the
balance as is in excess of one hundred dollars, but shall be under no
obligation to give those facilities while the ship is in port if the
sum will become payable before the ship
leaves port, or otherwise than conditionally on the seaman going to sea
in the ship. (2)
Any master of a ship who fails to comply with this section
shall be guilty of an offence and shall be liable to a fine of one
hundred dollars. Right of suing on allotment notes. 55. (1) The
person in whose favour an allotment note under this Chapter is made
may, unless the seaman is shown, in the manner in this Ordinance
specified, to have forfeited or ceased to be entitled to the wages out
of which the allotment is to be paid, recover the sums allotted when
and as the same are made payable, with costs from the owner of the ship
with respect to which the engagement was made, or from any agent of the
owner who has authorized the allotment, in the same court and manner in
which wages of seamen not exceeding five hundred dollars may be
recovered under this Ordinance: Provided that the wife of a
seaman, if she deserts her children, or so misconducts herself as to be
undeserving of support from her husband, shall forfeit all right to
further payments under any allotment made in her favour. (2)
In any proceeding for such recovery, it shall be
sufficient for the claimant to prove that he is the person mentioned in
the note, and that the note was given by the owner or by the master or
some other authorised agent; and the seaman shall be presumed to be
duly earning his wages, unless the contrary is shown to the
satisfaction of the Court – (a) by the
official statement of the change in the crew caused by his absence,
made and signed by the master, as by this Ordinance is required; (b) by a
certified copy of some entry in the official logbook to the effect that
he has left the ship; (c) by a
credible letter from the master of the ship to the same effect; or (d) by such
other evidence as the court in its absolute discretion considers
sufficient to show satisfactorily that the seaman has ceased to be
entitled to the wages out of which the allotment is to be paid. Time for payment of an allotment note. 56. A payment under an allotment note shall
begin at the expiration of one month from the date of the agreement
with the crew, and shall be paid at the expiration of every subsequent
month after the first month, and shall be paid only in respect of wages
earned before the date of payment. Chapter
10 RIGHTS
OF SEAMEN IN RESPECT OF WAGES Right to wages,
etc. when to begin. 57. The right of a seaman belonging to a
North Borneo ship to wages and provisions shall be taken to begin
either at the time at which he commences work, or at the time specified
in the agreement for his commencement of work or presence on board
whichever first happens. Right to recover wages and salvage not to be forfeited. 58. (1) A
seaman belonging to a North Borneo ship shall not by any agreement
forfeit his lien on the ship, or be deprived of any remedy for the
recovery of his wages, to which, in the absence of the agreement, he
would be entitled, and shall not by any agreement abandon his right to
wages in case of the loss of the ship, or abandon any right that he has
or obtains in the nature of salvage; and every stipulation in any
agreement inconsistent with any provisions of this Ordinance shall be
void. (2)
Nothing in this section shall apply to a stipulation made
by the seaman belonging to any North Borneo ship which according to the
terms of the agreement is to be employed on salvage service, with
respect to the remuneration to be paid to them for salvage services to
be rendered by that ship to any other ship. Wages not to depend on freight. 59. (1) The
right of a seaman belonging to a North Borneo ship to wages shall not
depend on the earning of freight. (2)
Every seaman and apprentice who would be entitled to
demand and recover any wages, if the ship in which he has served had
earned freight, shall, subject to all other rules of law and conditions
applicable to the case, be entitled to demand and recover the same,
notwithstanding that freight has not been earned. (3)
In all cases of wreck or loss of the ship, proof that the
seaman has not exerted himself to the utmost to save the ship, cargo
and stores shall bar his claim to wages. (4)
Where a seaman or apprentice who would, but for his death,
be entitled by virtue of this section to demand and recover any wages,
dies before the wages are paid, they shall be paid and applied in the
manner provided by this Part with respect to the wages of a seaman who
dies during a voyage. Wages on termination of service by wreck. 60. (1) When
the service of a seaman employed on a North Borneo ship terminates
before the date contemplated in the agreement, by reason of the wreck
or loss of a ship, he shall be entitles, in respect of each day on
which he is in fact unemployed during a period of two months from the
date of the termination of the service, to receive wages at the rate to
which he was entitled at that date. (2)
A seaman shall not be entitled to receive wages under this
section if the owner shows that the unemployment was not due to the
wreck or loss of the ship and shall not be entitled to receive wages
under this section in respect of any day if the owner shows that the
seaman was able to obtain suitable employment on that day. (3)
In this section “seaman” includes every person employed or
engaged in any capacity on board any ship, but, in the case of a ship
which is a fishing vessel, does not include any person who is entitled
to be remunerated only by a share in the profits or the gross earnings
of the working of the vessel. Wages on termination of service by illness. 61. Where the service of a seaman belonging
to a North Borneo ship terminates before the date contemplated in his
agreement by reason of his being left on shore at any place not in
North Borneo under a certificate, granted in the manner provided in the
Merchant Shipping Acts, of his unfitness or inability to proceed on the
voyage, he shall be entitled to wages up to the time of such
termination, but not for any longer period. Wages not to accrue during refusal to work or imprisonment. 62. A seaman or apprentice belonging to a
North Borneo ship shall not be entitled to wages for any time during
which he unlawfully refuses or neglects to work, when required, whether
before or after the time fixed by the agreement for his commencement of
such work, nor, unless the Court hearing the case otherwise directs,
for any period during which he is lawfully imprisoned for any offence
committed by him. Forfeiture of wages etc., of seaman when illness caused by
his own default. 63. Where a seaman belonging to a North
Borneo ship is by reason of illness incapable of performing his duty,
and it is proved that the illness has been caused by his own wilful act
or default, he shall not be entitled to wages for the time during which
he is by reason of the illness incapable of performing his duty. Costs of
procuring punishment may be deducted from wages. 64.
Whenever in any proceeding relating to a seaman’s
wages, it is shown that a seaman or apprentice belonging to a North
Borneo ship has, in the course of the voyage, been convicted of an
offence by a competent tribunal and rightfully punished for that
offence by imprisonment or otherwise, the Court hearing the case may
direct any part of the wages due to the
seaman, not exceeding one month’s wages, to be applied in reimbursing
any costs properly incurred by the master in procuring the conviction
and punishment. Compensation to
seaman improperly discharged. 65. If a seaman, having signed an agreement
to serve in a North Borneo ship is discharged otherwise than in
accordance with the terms thereof before the commencement of the
voyage, or before one month’s wages are earned, without fault on his
part justifying that discharge, and without his consent, he shall be
entitled to receive from the master or owner, in addition to any wages
which he has earned, due compensation for the damage caused to him by
the discharge, not exceeding one month’s wages, and may recover that
compensation as if it were wages duly earned. Restriction on sale of and charge upon wages. 66. (1) As
respects wages due or accruing to a seaman or apprentice belonging to a
North Borneo ship – (a) they shall
not be subject to attachment or arrestment from any court; (b) an assignment
or sale thereof made prior to the accruing thereof shall not bind the
person making the same; (c) a power of
attorney or authority for the receipt thereof shall not be irrevocable;
and (d) a payment of
wages to the seaman or apprentice shall be valid in law,
notwithstanding any previous sale or assignment of those wages, or any
attachment, encumbrance, or arrestment thereof. (2)
Nothing in this section shall affect the provisions of
this Part with respect to allotment notes. Chapter
11 MODE
OF RECOVERING WAGES Summary proceedings for wages. 67. A seaman or apprentice or a person duly
authorized on his behalf may as soon as any wages due to him, not
exceeding five hundred dollars, become payable sue for the same in a
summary manner before any Court of a magistrate of the First Class in
or near the place at which his service has terminated, or at which he
has been discharged, or at which any person, on whom the claim is made,
is or resides, and the order made by the Court in the matter shall be
final. Saving in case of foreign ships. 68. Nothing in this Chapter shall be
construed as limiting the jurisdiction of a Court to refuse to
entertain an action for wages by the master or a member of the crew of
a ship – (a) if the
ship is not a British or North Borneo ship; or (b) if, in
the case of a British ship, the provisions of section 166 of the
Principal Act apply. Remedies of master for wages disbursements, etc. 69.
(1) The
master of a ship shall, so far as the case permits, have the same
rights, liens and remedies for the recovery of his wages as a seaman
has under this Ordinance or by any law or custom. (2)
The master of a ship, and every person lawfully acting as
a master of a ship by reason of the decease or incapacity from illness
of the master of the ship, shall, so far as the case permits, have the
same rights, liens and remedies for the recovery of disbursements or
liabilities properly made or incurred by him on account of the ship as
a master has for the recovery of his wages. (3)
If in any proceeding in the High Court exercising
Admiralty jurisdiction touching the claim of a master in respect of
wages, or of such disbursements or liabilities as aforesaid, any right
of set-off or counter-claim is set up, the Court may enter into and
adjudicate upon all questions, and settle all accounts then arising or
outstanding and unsettled between the parties to the proceeding, and
may direct payment of any balance found to be due. Powers of Court in case of unreasonable delay in paying
master’s wages. 70. In any action or other legal proceedings
by the master of a ship for the recovery of any sum due to him on
account of wages, the Court may, if it appears to it that the payment
of the sum due has been delayed otherwise than owing to the act or
default of the master, or to any reasonable dispute as to liability, or
to any other cause not being the wrongful act or default of the person
liable to make the payment, order that person to pay, in addition to
any sum due on account of wages, such sum as it thinks just as damages
in respect of the delay, without prejudice to any claim which may be
made by the master on that account. Chapter
12 POWERS
OF COURTS TO RECIND CONTRACTS Power of Court to rescind contract between owner or master
and seaman or apprentice. 71. (1) Where
a proceeding is instituted in or before any Court in relation to any
dispute between an owner or master of a ship and a seaman or apprentice
arising out of or incidental to their relation as such, or is
instituted for the purpose of this section, the Court, if having regard
to all the circumstances of the case it thinks fit, may rescind any
contract between the owner or master and the seaman or apprentice, or
any contract of apprenticeship, upon such terms as the Court thinks
just. (2)
This power shall be in addition to any other jurisdiction
which the Court can exercise independently of this section. Chapter
13 PROPERTY
OF DECEASED SEAMEN Property of seaman who dies during voyage. 72. (1) If
any seaman or apprentice belonging to a North Borneo ship the crew of
which are to be discharged in or the final port of destination of which
is in North Borneo dies during a voyage the master of the ship shall
take charge of any money or effects belonging to the seaman or
apprentice which are on board the ship. (2)
The master may, if he thinks fit, cause any of the effects
to be sold by auction at the mast or otherwise by public auction. (3)
The master shall enter in the official log book the
following particulars – (a) a
statement of the amount of the money and a description of the effects; (b) in case
of a sale, a description of each article sold and the sum received for
each; (c) a
statement of the sum due to the deceased for wages and of the amount of
deductions, if any, to be made from the wages. (4)
The entry shall be signed by the master and attested by a
mate and some other member of the crew. (5)
The above-mentioned money, effects, and balance of wages
are in this Chapter referred to as the property of the seaman or
apprentice. Dealing with and
account of property of seaman who dies during voyage. 73.
(1) Where a seaman or apprentice dies as aforesaid
the master shall, within forty-eight hours after his arrival at his
port of destination in North Borneo, deliver and pay the property to
the Superintendent at that port. (2)
In all cases where a seaman or apprentice dies during the
progress of a voyage or engagement, the master shall give to the
Superintendent such accounts as, and in such form as, he requires of
the property of the deceased. (3)
A deduction claimed by the master in such account shall
not be allowed unless verified, if an official log book is required to
be kept, by an entry in that book made and attested as required by this
Ordinance, and also by such other vouchers, if any, as are reasonably
required by the Superintendent. (4)
The Superintendent may, if he thinks fit, sell any of the
property of a deceased seaman or apprentice delivered to him or of
which he takes charge under this Chapter and the proceeds of such sale
shall be deemed to form part of the said property. (5)
The Superintendent shall grant to a master, upon due
compliance with such provisions of this section as relate to acts to be
done at the port of destination, a certificate to that effect. Penalty for non-compliance with provisions as to property of
deceased seaman. 74.
(1) Any master of a ship to which section 72 refers
who fails to comply with the provisions of this Chapter with respect to
– (a) taking charge
of the property of a deceased seaman or apprentice; (b) making in the
official log book the proper entries relating thereto; (c) procuring the
proper attestation of those entries as required by this Chapter; or (d) the payment
or delivery of the property, shall
be accountable for the property to the Superintendent and shall pay and
deliver the same accordingly and shall, in addition to paying and
delivering the same accordingly, be guilty of an offence and shall be
liable to a fine of treble the value of the property not accounted for,
or, if such value is not ascertained, of five hundred dollars. (2)
If any such property is not duly paid, delivered or
accounted for by the master, the owner of the ship shall pay, deliver
and account for the same, and such property shall be recoverable from
him accordingly, and if he fails to account for and deliver or pay the
same, he shall, in addition to his liability for the same, be guilty of
an offence and shall be liable to a fine of treble the value of the
property not accounted for, delivered or paid over, or, if such value
is not ascertained, of five hundred dollars. (3)
The property may be recovered in the same Court and manner
in which the wages of seaman may be recovered under this Ordinance. Recovery of
wages of seamen lost with their ship. 75. (1) Where
a seaman or apprentice belonging to a ship to which section 72 refers
is lost with the ship to which he belongs, the Superintendent may
recover the wages due to him from the owner of the ship, in the same
Court and in the same manner in which seaman’s wages are recoverable,
and shall deal with those wages in the same manner as with the wages of
the other deceased seamen and apprentices under this Chapter. (2)
In any proceeding for the recovery of the wages, if it is
shown by some official return produced out of the custody of the
Superintendent or by other evidence, that the ship has twelve months or
upwards before the institution of the proceeding left a port of
departure, she shall, unless it is shown that she has been heard of
within twelve months after that departure, be deemed to have been lost
with all hands on board, either immediately after the time at which she
was last heard of, or at such later time as the Court hearing the case
thinks probable. (3)
Any duplicate agreement made out, or statement or a change
of the crew delivered, under this Part, or under the Merchant Shipping
Acts, at the time of the last departure of the ship from North Borneo,
or a certificate purporting to be a certificate from a consular or
other public officer at any port outside North Borneo stating that
certain seamen and apprentices were shipped in the ship from the said
port, shall, if produced out of the custody of the Superintendent be,
in the absence of proof to the contrary, sufficient proof that the
seamen and apprentices therein named as belonging to the ship were on
board at the time of the loss. Property of seaman dying in North Borneo. 76. If a seaman or apprentice belonging to a
ship to which section 72 refers dies in North Borneo and was at the
time of his death entitled to claim from the master or owner of a ship
in which he has served any effects or unpaid wages, the master or owner
shall pay and deliver or account for such property to the
Superintendent at the port where the seaman or apprentice was
discharged or was to have been discharged. Payment over of property of deceased seamen by the
Superintendent. 77. (1) Where
any property of a deceased seaman or apprentice belonging to a ship to
which section 72 refers come into the hands of the Superintendent, the
Superintendent after deducting expenses incurred in respect of that
seaman or apprentice or of his property such sum as he thinks proper to
allow, shall, subject to the provisions of this Chapter, deal with the
residue as follows – (a) if
the property exceeds in value one thousand dollars he shall pay and
deliver the residue to the legal personal representative of the
deceased; (b) if the
property does not exceed in value one thousand dollars, he may, as he
thinks fit, either – (i) pay
or deliver the residue to any claimant who is proved to his
satisfaction to be the widow or a child of the deceased, or, to be
entitled to the personality of the deceased either under his will, if
any, or any statute of distribution or otherwise, or to be a person
entitled to take out representation, although no such representation
has been taken out, and shall be thereby discharged from all further
liability in respect of the residue so paid or delivered; or (ii) require
representation to be taken out, and pay and deliver the residue to the
legal personal representative of the deceased. (2)
Every person to whom any such residue is so paid or
delivered shall apply the same in due course of administration. Dealing with deceased seaman’s property when he leaves a ship. 78. (1) Where
a deceased seaman or apprentice belonging to a ship to which section 72
refers has left a will, the Superintendent may refuse to pay or deliver
any residue as provided in section 77 – (a) if the will was made on board ship, to
any person claiming under the will, unless the will is in writing, and
is signed or acknowledged by the testator in the presence of, and is
attested by, the master or first mate of the ship; and (b) if the will was not made on board ship,
to any person claiming under the will, and not being related to the
testator by blood or marriage, unless the will is in writing and signed
or acknowledged by the testator in the presence of, and is attested by,
two witnesses, one of whom is the Superintendent, or a person holding a
similar office or is a minister of religion officiating in the place in
which the will is made, or, where there are no such persons, a
Magistrate, a British consular officer, or an officer of customs. (2)
Whenever the Superintendent refuses under this section to
pay or deliver the residue to a person claiming under a will, the
residue shall be dealt with as if no will had been made. Claims by creditors. 79. (1) A
creditor shall not be entitled to claim from the Superintendent the
property of a deceased seaman or apprentice received by the
Superintendent under this Ordinance, or any part thereof, by virtue of
representation obtained as a creditor. (2)
A creditor shall not be entitled by any means whatever to
obtain payment of his debt out of the property, if the debt accrued
more than three years before the death of the deceased, or if the
demand is not made within two years after the death. (3)
The demand shall be made by the creditor delivering to the
Superintendent an account in writing, stating the particulars of his
demand and the place of his abode, and signed by him and verified by a
statutory declaration. (4)
If before the demand is made, any claim to the property of
the deceased made by any person has been allowed, the Superintendent
shall give notice to the creditor of the allowance of the claim. (5)
If no claim has been allowed, the Superintendent shall
investigate the creditor’s account, and may for that purpose require
him to prove the same, and to produce all books, accounts, vouchers and
papers relating thereto; and if by means of them the creditor satisfies
the Superintendent of the justice of the demand, either in the whole or
in part, the same shall be allowed and paid accordingly, so far as the
property then in the hands of the Superintendent will extend for that
purpose, and the Superintendent shall thereby be discharged from all
further liability in respect of money so paid. (6)
If the Superintendent is not satisfied as to the claim, or
if such books, accounts, vouchers or papers as aforesaid are not produced, and sufficient reason is not given for
their non-production, the demand shall be disallowed. (7)
In any case whatever the Superintendent may delay the
investigation of any demand made by a creditor for the payment of his
debt for one year from the time of the first delivery of the demand. (8)
If in the course of such time a claim to the property of
the deceased is made by any person as widow, next of kin or legatee,
and allowed by the Superintendent under this Chapter, the
Superintendent may pay and deliver the same to that person. (9)
Where the property has been paid and delivered by the
Superintendent to any person as widow, next of kin or legatee of the
deceased, whether before or after the demand made by the creditor, the
creditor shall have the same rights and remedies against that person as
if he had received the property as the legal personal representative of
the deceased. Dealing with unclaimed property of deceased seaman. 80. (1) Where no claim to the property of a deceased
seaman or apprentice received by the Superintendent under this Chapter
is substantiated within one year after the receipt thereof, the
Superintendent shall pay the same, or the proceeds thereof, into the
general revenue. (2)
If any subsequent claim is made to such property or the
proceeds thereof, and is established to the satisfaction of the
Superintendent, the amount, or so much as appears to be sue to the
claimant, shall be paid to the claimant out of the general revenue. (3)
If any claim is not established to the satisfaction of the
Superintendent, the claimant may apply by summons to the High Court,
and that Court, after taking evidence either orally or on affidavit,
shall make such order on the summons as seems just. (4)
After the expiration of six years from the receipt of such
property or proceeds by the Superintendent, no such claim shall be
entertained without the sanction of the Governor. Forgery of documents, etc., for purpose of obtaining property
of deceased seaman. 81. Any person, who, for the purpose of
obtaining either for himself or for any other person, any property of
any deceased seaman or apprentice – (a) forges
or fraudulently alters, or assists in forging or fraudulently altering,
or procures to be forged or fraudulently altered any document
purporting to show or assist in showing any right to such property; (b) makes
use of any document which has been so forged or fraudulently altered as
aforesaid; (c) gives
or assists in giving, or procures to be given, any false evidence,
knowing the same to be false; (d) makes
or assists in making, or procures to be made, any false representation,
knowing the same to be false; or (e) assists in procuring any false
evidence or representation to be given or made, knowing the same to be
false, shall
be guilty of an offence and shall be liable to imprisonment for two
years and a fine of five thousand dollars. Chapter
14 PROVISIONS,
HEALTH AND ACCOMMODATION Complaints as to provisions or water. 82. (1) If
three or more of the crew of a North Borneo ship where such ship is
within North Borneo, consider that the provisions or water for the use
of the crew are at any time of bad quality, unfit for use, or deficient
in quantity, they may complain thereof to the Superintendent or a Port
Health Officer, and such officer may either examine the provisions or
water complained of or cause them to be examined. (2)
If such officer or the person making the examination finds
that the provisions or water are of bad quality and unfit for use, or
deficient, he shall signify it in writing to the master of the ship,
and if the master of the ship does not thereupon provide other proper
provisions or water in lieu of any so signified to be of bad quality
and unfit for use, or does not procure the requisite quantity of any
provisions or water so signified to be deficient in quantity or uses
any provisions or water so signified to be of bad quality and unfit for
use, he shall be guilty of an offence and shall be liable to a fine of
five hundred dollars. (3)
Such officer or the person making the examination shall
enter a statement of the result of the examination in the official log
book of the ship, and shall send a report thereof to the
Superintendent, and that report shall be admissible in evidence in the
manner provided by this Ordinance. (4)
If such officer or the person making the examination
certifies in the statement entered in the official log book that there
were no reasonable grounds for the complaint, he may order that each of
the complainants shall forfeit to the owner out of his wages a sum not
exceeding one week’s wages. Inspection of provisions and water. 83. (1) An
inspecting officer may inspect, either on board the ship or before
shipment, any provisions (other than provisions provided by the crew
themselves) or water intended for the use of the crew of any North
Borneo ship which is going from any port in North Borneo and for which
an agreement with the crew is required under this Ordinance and if he
finds that the provisions or water are in any respect deficient in
quality, the ship shall be detained until the defects are remedied to
his satisfaction: Provided that any inspection
of provisions or water under this section shall be made before shipment
whenever practicable, and if the owner, agent or master of a ship gives
notice to the inspecting officer that any provisions or water for the
ship are ready for inspection, the inspecting officer shall not have
power to inspect any such provisions or water under this section, if
they are at a convenient place for inspection, except within
forty-eight hours after the notice is given, without prejudice to the
power of the inspecting officer to inspect any provisions or water not
specified in the notice or, without unnecessarily delaying the ship, to
proceed on board the ship in order to satisfy himself that there has
been no evasion of the requirements of this section by the substitution
of other provisions or water for those which have been inspected on
shore or specified in a notice as being the provisions or water for the
ship, or otherwise. (2)
Where any provisions or water are found deficient in
quality under this section, the master of the ship shall be guilty of
an offence and shall be liable to a fine of five thousand dollars,
unless the Court before which the case is tied thinks that finding of
the inspecting officer was not justified; but, if the master of the
ship shows to the satisfaction of the Court that the responsibility for
the defects in the provisions or water rests either with the owner of
the ship, or any agent of the owner of the ship, or with the person who
has supplied the provisions or water, that owner, agent or person shall
be liable to conviction for the offence instead of the master, and the
master shall be exempt. (3)
The master of the ship and any other person having charge
of any provisions or water liable to inspection under this section
shall give the inspecting officer every reasonable facility for the
purpose of his inspection under this section, and, if the master or
other person refuses or fails to do so, he shall be guilty of an
offence and shall be liable to a fine of five hundred dollars. (4)
Where any provisions are inspected under this section
either before shipment or on board a ship there shall be payable in
respect of such inspection such fees as may be prescribed: Provided that where
provisions, which have been inspected and sealed by an inspecting
officer, are found on board any ship within such time as may be
prescribed as the time for which the seals are to hold good, no fee
shall be charged for the verification of the seals. (5)
The Director may appoint officers for the purposes of any
inspection under this section, and the expression “inspecting officer”,
wherever used in this section, means an officer so appointed. Allowance for short or bad provisions. 84. In either of the following cases, that
is to say – (a) if during a voyage of a North
Borneo ship where such ship is within North Borneo, the allowance of
any of the provisions for which a seaman has by his agreement
stipulated is reduced (except in accordance with any regulations for
reduction by way of punishment contained in the agreement with the
crew, and also except for any time during which the seaman wilfully and
without sufficient cause refuses or neglects to perform his duty, or is
lawfully under confinement for misconduct either on board or on shore);
or (b) if it is shown that any of those
provisions are or have been, during a voyage of any such ship
aforesaid, bad in quality and unfit for use, the
seaman shall receive, by way of compensation for that reduction or bad
quality, such sums as may be prescribed; but if it is shown to the
satisfaction of the Court before the case is tried that any provisions,
the allowance of which has been reduced, could not be procured or
supplied in proper quantities, and that proper and equivalent
substitutes were supplied in lieu thereof, the Court shall take those
circumstances into consideration, and shall modify or refuse
compensation as the justice of the case requires. Weights and measures on board. 85.
(1) The
master of a North Borneo ship where the ship is within North Borneo,
shall keep on board proper weights and measures for determining the
quantities of the several provisions and articles served out, and shall
allow the same to be used at the time of serving out the provisions and
articles in the presence of a witness whenever any dispute arises about
the quantities. (2) If the master of any
such ship fails without reasonable cause to comply with this section he
shall be guilty of an offence and shall be liable to a fine of two
hundred dollars. Ship to carry
medicines, medical stores etc. in accordance with scale. 86. (1) The
owner, agent and master of every North Borneo ship of a tonnage
exceeding fifteen tons whose voyage commences from any port in North
Borneo shall cause to be kept on board such ship a supply of medicines
and medical stores in accordance with such scale, and a copy of such
instructions for dispensing the same, as may be prescribed. (2)
The owner, agent and master of any such ship who wilfully
refuses or neglects to provide and keep on board such medicines,
medical stores and instructions as are required by this section shall
be guilty of an offence and shall be liable to a fine of five hundred
dollars. Inspection of
medicines etc. 87. (1) A
Port Health Officer may inspect any medicines or medical stores or
appliances with which any ship is under the provisions of this Chapter
required to be provided, and for the purposes of such inspection shall
have all the powers of an inspector under this Ordinance. (2)
If the Port Health Officer is of the opinion that the
articles inspected are deficient in quantity or quality, or are placed
in improper receptacles, he shall give notice in writing to the
Superintendent and also to the master, owner or agent of the ship, and
the master of the ship before proceeding to sea shall produce to the
Superintendent a certificate under the hand of the Port Health Officer
that the default found by him has been remedied, and if that
certificate is not produced; and if the ship proceeds to sea, the
owner, master or agent of the ship shall be guilty of an offence and
shall be liable to a fine of five hundred dollars. Expenses of medical attendance in case of injury or illness. 88. (1) If
the master of, or a seaman or apprentice belonging to a North Borneo
ship where such ship is within North Borneo, receives any hurt or
injury in the service of the ship, or suffers from any illness (not
being an illness due to his wilful act or default or to his own
misbehaviour) the expenses of providing the necessary surgical and
medical advice and attendance and medicine, and also the expenses of
the maintenance of the master, seaman or apprentice until he is cured
or dies or is returned either to the port at which he was shipped or to
a port in the country to which he belongs, and of his conveyance to
such port, and in the case of death the expense, if any, of his burial,
shall be defrayed by the owner of the ship, without any deduction on
that account from the wages of such master, seaman or apprentice: Provided that nothing in
this section shall prejudice the rights of any master, seaman or
apprentice under the Workmen’s Compensation Ordinance [Ord.
No. 14 of 1955.] so, however, that no
person shall be entitled to payments under that Ordinance in respect of
the period during which the owner of the ships is liable to defray the
expenses of such person’s maintenance under this Chapter. (2)
If a master, seaman or apprentice as aforesaid is on
account of any illness temporarily removed from his ship for the
purpose of preventing infection, or otherwise for the convenience of
the ship, and subsequently returns to his duty the expense of the
removal and of providing the necessary advice, attendance and medicine,
and of his maintenance while away from the ship, shall be defrayed in
the manner provided in subsection (1). (3)
The expense of all medicines, surgical and medical advice,
and attendance given to a master, seaman or apprentice as aforesaid
whilst on board his ship shall be defrayed in the manner provided in
subsection (1). (4)
In all other cases any reasonable expenses duly incurred
by the owner of any such ship, where such ship is within North Borneo,
for any seaman or apprentice in respect of illness, and also any
reasonable expenses duly incurred by the owner of any such ship as
aforesaid in respect of the burial of any seaman or apprentice who dies
whilst on service, shall, if duly proved, be deducted from the wages of
the seaman or apprentice. Recovery of expenses from owner. 89. (1) If
any of the expenses attendant on the illness, hurt or injury of a
seaman or apprentice which are to be paid under this Chapter by the
master or owner of the ship to which such seaman or apprentice belongs
are paid by any authority on behalf of the Government or if any other
expenses in respect of the illness, hurt or injury, of any seaman or
apprentice belonging to any North Borneo ship whose wages are not
accounted for under this Part to that authority, are so paid, those
expenses shall be repaid to that authority by the master or owner of
the ship. (2)
If any expenses are not repaid as required by subsection
(1), the amount thereof, with costs, shall be a charge upon the ship
and shall be recoverable from the master or from the owner of the ship
for the time being, or where the ship has been lost from the person who
has the owner of the ship at the time of the loss, or, where the ship
has been transferred to some person not being a British subject, either
from the owner for the time being or from the person who was the owner
of the ship at the time of the transfer, as a debt to the Government,
either by ordinary process of law or in the Court and in the manner in
which wages may under this Part be recovered by seamen and apprentices. (3)
In any proceeding for such recovery, a certificate of the
facts, signed by the aforesaid authority, together with such vouchers,
if any, as the case requires, shall be sufficient proof that the
expenses in respect of which the proceeding has been instituted were
duly paid by that authority. Accommodation
for seamen etc. 90. The accommodation for seamen and
apprentices in North Borneo ships shall be such as may be prescribed
and provision may be made in the same manner for the inspection of such
accommodation and for fees to be paid in respect of such inspection. Certain ships to carry medical practitioners. 91. (1) Every
foreign-going ship which proceeds from North Borneo, not being an
emigrant ship within the meaning of Part III of the Principal Act,
having one hundred persons or upwards on board, shall carry on board as
part of her complement some duly qualified medical practitioner, and if
she does not, her owner shall for every voyage of the ship or any part
thereof made without a duly qualified medical practitioner be guilty of
an offence and liable to a fine of five thousand dollars. (2)
The provisions of section 303 of the Principal Act shall
apply in respect of an emigrant ship, as defined for the purposes of
Part III of that Act, which proceeds from North Borneo and for any
voyage made in breach of such provisions the owner shall be liable to
the like penalty as provided for a breach of the provisions of
subsection (1). (3)
For the purposes of subsection (1), “duly qualified
medical practitioner” means a medical practitioner authorised by law to
practise as a legally qualified medical practitioner in some part of
the Commonwealth or, in the case of a foreign ship, in the country to
which the ship belongs. Penalty on master on filthy condition of ship carrying
passengers. 92. (1) If
any ship carrying passengers is found on arrival in North Borneo to be
in a filthy and insanitary condition, the master of that ship shall be
guilty of an offence and shall be liable to a fine of one thousand
dollars. (2)
The Port Health Officer may inspect any such ship on
arrival in order to ascertain the sanitary condition thereof; and that
officer shall, for that purpose, have all the powers of an inspector
under this Ordinance. Medical inspection of seamen. 93.
The Port Health Officer shall, on application by the
owner or master of any British or North Borneo ship and on payment by
such owner or master of the prescribed fees, examine any seaman
applying for employment in that ship, and shall give to the
Superintendent a report under his hand stating whether the seaman is in
a fit state for sea, and a copy of the report shall be given to the
master or owner. Chapter
15 FACILITIES
FOR MAKING COMPLAINTS Facilities for making complaint. 94. (1) If
a seaman or apprentice whilst on board a North Borneo ship where such
ship is within North Borneo states to the master of the ship his desire
to make a complaint to the Superintendent or a Magistrate against the
master or any of the crew, the master shall, as soon as the service of
the ship will permit, - (a) if the ship
is then at a port in North Borneo; or (b) if the ship
is not then at such a port after her first arrival at any such port, allow
the complainant to go ashore or send him ashore in proper custody, so
that he may be enabled to make his complaint. (2)
If the master of a ship fails without reasonable cause to
comply with this section, he shall be guilty of an offence and shall be
liable to a fine of two hundred dollars. Chapter
16 PROTECTION
OF SEAMAN FROM IMPOSITION Assignment or sale of salvage invalid. 95. Subject to the provisions of this
Ordinance, an assignment or sale of salvage payable to a seaman or
apprentice belonging to a North Borneo ship made prior to the accruing
thereof shall not bind the person making the same; and a power of
attorney or authority for the receipt for any such salvage shall not be
irrevocable. No debt
exceeding $5 recoverable till end of voyage. 96. A debt exceeding in amount five dollars
incurred by any seaman belonging to a North Borneo ship after he is
engaged to serve shall not be recoverable until the service agreed for
is concluded. Penalty for overcharging by lodging house keepers. 97. If a person demands or receives from a
seaman or apprentice payment in respect of his board or lodging in the
house of that person for a longer period than that during which the
seaman or apprentice has actually resided or boarded therein, that
person shall be guilty of an offence and shall be liable to a fine of
two hundred dollars. Penalty for detaining seamen’s effects. 98.
(1) If a
person receives or takes into his possession or under his control any
money or effects of a seaman or apprentice, and does not return the
same or pay the value thereof, when required by the seaman or
apprentice, subject to such deduction as may be justly due to him from
the seaman or apprentice in respect of board or lodging or otherwise,
or absconds therewith, he shall be guilty of an offence and shall be
liable to a fine of two hundred dollars. (2)
Notwithstanding any limitation of the ordinary
jurisdiction of any Court by which an offence under subsection (1) is
tried – (a) the Court may, besides inflicting
a fine, make an order directing the amount of the money, or the value
of the effects, subject to such deduction as aforesaid, if any, or the
effects themselves, to be forthwith paid or delivered to the seaman or
apprentice; and (b) if the person to whom such order
is addressed makes default in complying therewith, he may, in the
discretion of the Court be ordered to pay a sum (which shall for the
purposes of the Criminal Procedure Code Ordinance No. 4 of
1959.] be deemed to be a fine which he is sentenced to pay under
any written law) not exceeding ten dollars for every day during which
he is in default, or to be imprisoned until he has remedied his
default, but so that he shall not, for non-compliance with such order,
be liable under this section to imprisonment for a period or periods
amounting in the aggregate to more than two months, or to the payment
of any sums exceeding in the aggregate five hundred dollars. Penalty for solicitations by lodging house keepers. 99. If, within twenty-four hours after the
arrival of a ship at a port in North Borneo, a person then being on
board the ship solicits a seaman to become a lodger at the house of a
person letting lodgings for hire, or takes out of the ship any effects
of a seaman, except under the personal direction of the seaman, and
with the permission of the master, he shall be guilty of an offence and
shall be liable to a fine of one hundred dollars. Penalty for being on board without permission before seamen
leave. 100. Where a North Borneo ship is about to
arrive, is arriving or has arrived at any port in North Borneo, and any
person, not being in Her Majesty’s service or not being duly authorized
by law for the purpose – (a) goes on board the ship, without the
permission of the master before the seamen lawfully leave the ship at
the end of their engagement or are discharged, whichever last happens;
or (b) being on board the
ship, remains there after being warned to leave by the master, or by a
police officer, or by the superintendent, that
person shall be guilty of an offence and shall be liable to
imprisonment for six months and a fine of one thousand dollars; and the
master of the ship or the Superintendent may take him into custody, and
deliver him up forthwith to a police officer to be taken before a Court
having jurisdiction in respect of the offence. Chapter
17 PROVISIONS
AS TO DISCIPLINE Misconduct endangering life or ship. 101. If a master, seaman or apprentice
belonging to a North Borneo ship by wilful breach of duty or by neglect
of duty or by reason of drunkenness – (a) does any act tending to the immediate
loss, destruction or serious damage of the ship or tending immediately
to endanger the life or limb of a person belonging to or on board the
ship; or (b) refuses or omits to do any lawful act
proper and requisite to be done by him for preserving the ship from
immediate loss, destruction, or serious damage, or for preserving any
person belonging to or on board the ship from immediate danger to life
or limb, he
shall be guilty of an offence and shall be liable to imprisonment for
two years and a fine of five thousand dollars. Desertion and
absence without leave. 102. If a seaman lawfully engaged, or an
apprentice belonging to a North Borneo ship where such ship is within
North Borneo, commits any of the following offences he shall, on
conviction thereof, be liable to be punished as follows – (a) if he deserts from his ship, he shall be
guilty of the offence of desertion and be liable to forfeit all or any
part of the effects he leaves on board and of the wages which he has
then earned, and to satisfy any excess of wages paid by the master or
owner of the ship to any substitute engaged in his place at a higher
rate of wages than the rate at which wages have been stipulated to be
paid to him; and he shall also be liable to imprisonment for twelve
weeks; (b) if he neglects or refuses without
reasonable cause, to join the ship, or to proceed to sea in his ship,
or is absent without leave at any time within the period of twenty-four
next before the ship’s sailing from a port, either at the commencement
or during the progress of a voyage, or is absent at any time, without
leave and without sufficient reason, from his ship or from his duty, he
shall, if the offence does not amount to desertion, or is not treated
as such by the master, be guilty of the offence of absence without
leave, and be liable to forfeit out of his wages a sum not exceeding
two days’ pay, and, in addition, for every twenty-four hours absence,
either a sum not exceeding six days’ pay or any expenses properly
incurred in hiring a substitute; and he shall also be liable to
imprisonment for ten weeks. Provisions as to failure to join ship and desertion. 103. (1) Where
a seaman belonging to a North Borneo ship who has been lawfully engages
and has received under his agreement an advance note, after negotiating
his advance note wilfully or through misconduct fails to join his ship
or deserts therefrom before the note
becomes payable, he shall be guilty of an offence and shall be liable
to imprisonment for three months and a fine of five hundred dollars;
but nothing in this section shall take away or limit any remedy by suit
or otherwise which any person would otherwise have in respect of the
negotiation of the advance note, or which an owner or master would
otherwise have for breach of contract. (2)
Where it is shown to the satisfaction of the
Superintendent that a seaman belonging to a North Borneo ship and
lawfully engaged has wilfully or through misconduct failed to join his
ship, the Superintendent may direct that the seaman’s certificate of
discharge shall be withheld for such period as he may think fit, and
while a seaman’s certificate of discharge is so withheld the
Superintendent and any other person having the custody of the necessary
documents, may notwithstanding anything in this or any other written
law, refuse to furnish copies of any of his certificates of discharge
or certified extracts of any particulars of service or character. Conveyance of deserter on board ship. 104. (1) If
in North Borneo a seaman or apprentice belonging to a North Borneo ship
is guilty of the offence of desertion or of absence without leave, or
otherwise absents himself from his ship without leave, the master or
any mate, or the owner, agent, or charterer of the ship may, with or
without the assistance of any police officers, convey him on board his
ship, and every police officer is hereby directed to give assistance if
required: Provided that if the seaman
or apprentice so requires, he shall first be taken before the Court of
a Magistrate to be dealt with according to law. (2)
If it appears to the Court before which the case is
brought that the seaman or apprentice has been conveyed on board or
taken before the Court on improper or insufficient grounds, that Court
may, notwithstanding any limitation of its jurisdiction, inflict on the
master, mate, owner, agent or charterer, as the case may be, a fine of
five hundred dollars; but the infliction of that fine shall be a bar to
any action for false imprisonment in respect of the arrest. Power of Court to order offender to be taken on board ship. 105. (1) Where
a seaman or apprentice belonging to a North Borneo ship is brought
before a Court on the ground of the offence of desertion, or of absence
without leave, or of otherwise absenting himself without leave, the
Court, if the master or the owner or his agent so requires, may, in
lieu of committing him to prison, cause him to be conveyed on board his
ship for the purpose of proceeding on the voyage or deliver him to the
master or any mate of the ship, or the owner or his agent, to be by
them so conveyed and may in such case order any costs and expenses
properly incurred by or on behalf of the master or owner by reason of
the offence to be paid by the offender, and, if necessary, to be
deducted from any wages which he has then earned or by virtue of his
then existing engagement may afterwards earn. (2)
If in North Borneo a seaman or apprentice as aforesaid
intends to absent himself from his ship or his duty, he may give notice
of his intention, either to the owner or to the master of the ship, not
less than forty-eight hours before the time at which he ought to be on
board his ship,; and, in the event of that notice being given, the
Court shall not exercise any of the powers conferred by this section
for causing the offender to be conveyed on board his ship. Seaman
imprisoned for desertion may be sent on board before term of
imprisonment completed. 106. Where a seaman or apprentice belonging
to a North Borneo ship has been imprisoned for having been guilty of
the offence or desertion or of absence without leave, or for having
committed any other breach of discipline, and during his imprisonment
and before his engagement is at an end of his services are required on
board his ship, any Magistrate may, except where such seaman or
apprentice has given notice under subsection (2) of section 105, on the
application of the master or of the owner or his agent, notwithstanding
that the period of imprisonment is not at an end, cause the seaman or
apprentice to be conveyed on board his ship for the purpose of
proceeding on the voyage, or to be delivered to the master or any mate
of the ship, or to the owner or his agent, to be by them so conveyed. General offences against discipline. 107. If a seaman lawfully engaged in, or an
apprentice belonging to, a North Borneo ship where such ship is within
North Borneo, commits any of the following offences (in this Ordinance
referred to as “offences against discipline”), he shall, on conviction
thereof, be liable to be punished as follows – (a) if he quits the ship without leave after
her arrival at her port of delivery, and before she is placed in
security, he shall be liable to forfeit out of his wages a sum not
exceeding one month’s pay; (b) if he is guilty of wilful disobedience
to any lawful command, he shall be liable to imprisonment not exceeding
four weeks, and also, at the discretion of the Court, to forfeit out
his wages a sum not exceeding two days’ pay; (c) if he is guilty of continued wilful
disobedience to lawful commands or continued wilful neglect of duty, he
shall be liable to imprisonment not exceeding twelve weeks, and also,
at the discretion of the Court, to forfeit for every twenty-four hours
continuance of disobedience or neglect either a sum not exceeding six
days’ pay or any expenses properly incurred in hiring a substitute; (d) if he
assaults any officer of the ship, he shall be liable to imprisonment
not exceeding twelve weeks; (e) if he combines with any of the crew to
disobey lawful commands, or to neglect duty, or to impede the
navigation of the ship or the progress of the voyage, he shall be
liable to imprisonment not exceeding twelve weeks; if he wilfully
damages his ship, or dishonestly misappropriates or converts to his own
use, or commits criminal breach of trust in respect of, or wilfully
damages, any of her stores or cargo, he shall be liable to forfeit out
of his wages a sum equal to the loss thereby sustained, and also, at
the discretion of the Court, to imprisonment not exceeding twelve weeks; (g) if he is convicted of any act of
smuggling, whereby loss or damage is occasioned to the master or owner
of the ship, he shall be liable to pay to the master or owner a sum
sufficient to reimburse the loss or damage; and the whole or a
proportionate part of his wages may be retained in satisfaction or on
account of that liability, without prejudice to any further remedy. Summary remedies
not to affect other remedies. 108. Nothing in section 107 or in the
sections relating to the offences of desertion or absence without leave
shall take away or limit any remedy by suit or otherwise which an owner
or master would, but for those provisions have for any breach of
contract in respect of the matters constituting an offence under those
sections, but an owner or master shall not be compensated more than
once in respect of the same damage. Penalty for false statement as to last ship or name. 109. (1) If
a seaman, on or before being engaged, wilfully and fraudulently makes a
false statement of the name of his last ship, or alleged last ship, or
wilfully and fraudulently makes a false statement of his own name, he
shall be guilty of an offence and shall be liable to a fine or one
hundred dollars. (2)
The fine may be deducted from any wages which the seaman
may earn by virtue of his engagement as aforesaid, and shall, subject
to any reimbursement of the loss and expenses, if any, occasioned by
any desertion previous to the engagement, be paid into the general
revenue. Entry of offences in official log book. 110. If on or in respect of any North Borneo
ship, where such ship is within North Borneo, any offence within the
meaning of this Chapter of desertion or absence without leave or
against discipline is committed, or if any act of misconduct is
committed, for which the offender’s agreement imposes a fine and it is
intended to enforce the fine – (a) an entry of
the offence or act shall be made in the official log book and signed by
the master and also by the mate or one of the crew; (b) the offender, if still in the ship,
shall before the next subsequent arrival of the ship at any port, or if
she is at the time in port before her departure therefrom,
either be furnished with a copy of the entry or have the same read over
distinctly and audibly to him, and may thereupon make a such reply
thereto as he thinks fit; (c) a statement of a copy of the entry
having been so furnished, or of the entry having been so read over,
and, in either case, the reply, if any, made by the offenders, shall
likewise be entered and signed in manner aforesaid; and (d) in any
subsequent legal proceeding the entries by this section required shall,
if practicable, be produced or proved, and in default of that
production or proof the Court hearing the case may, in its discretion,
refuse to receive evidence of the offences or act of misconduct. Facilities for proving desertion in proceedings for
forfeiture of wages. 111. (1) Whenever
a question arises whether the wages of any seaman or apprentice are
forfeited under this Chapter for desertion from a North Borneo ship
while such ship was within North Borneo, it shall be sufficient for the
person insisting on the forfeiture to show that the seaman or
apprentice was duly engaged in or belonged to the ship, and that he
left the ship before the completion of the voyage or engagement, and
that an entry of his desertion has been duly made in the official log
book. (2)
The desertion shall thereupon, so far as relates to any
forfeiture of wages under this Chapter, be deemed to be proved, unless
the seaman or apprentice can produce a proper certificate of discharge,
or can otherwise show to the satisfaction of the Court that he had
sufficient reasons for leaving ship. Application of forfeitures. 112. (1) Where
any wages or effects are under this Chapter forfeited for desertion
from a ship those effects may be converted into money; and those wages
and effects, or the money
arising from the conversion of the effects, shall be applied towards
reimbursing the expenses caused by the desertion to the master or owner
of the ship, and subject to that reimbursement, shall be paid into the
public revenue. (2)
Where wages are forfeited under the provisions of this
Ordinance in any case other than for desertion, the forfeiture shall,
in the absence of any specific provision to the contrary, be for the
benefit of the master or owner by whom the wages are payable. Decision of questions of forfeiture and deductions in suits
for wages. 113. Any question concerning the forfeiture
of or deductions from the wages of a seaman or apprentice under this
Ordinance may be determined in any proceedings lawfully instituted with
respect to those wages, notwithstanding that the offence in respect of
which the question arises although by this Ordinance made punishable by
imprisonment as well as forfeiture, has not been made the subject of
any criminal proceeding. Ascertainment of amount of forfeiture out of wages. 114. If a seaman contracts for wages by the
voyage, by the run or by the share, and not by the month or other
stated period of time, the amount of forfeiture to be incurred under
this Ordinance shall be an amount bearing the same proportion to the
whole wages or share as a month or any other period hereinbefore
mentioned in fixing the amount of such forfeiture as the case may be
bears to the whole time spent in the voyage or run; and, if the whole
time spent in the voyage or run does not exceed the period for which
the pay is to be forfeited, the forfeiture shall extend to the whole
wages or share. Deductions of fines from wages and payment to Superintendent. 115. (1) Every
fine imposed on a seaman belonging to a North Borneo ship for any act
of misconduct for which his agreement imposes a fine shall be deducted
as follows – (a) if the offender is discharged in North
Borneo and the offence and the entry in the log book required by the
Merchant Shipping Acts or by this Ordinance as the case may be in
respect of the offence are proved to the satisfaction of the
Superintendent before whom the offender is discharged, the master or
owner shall deduct the fine from the wages of the offender; (b) if the offender enters Her Majesty’s
naval service at any place within North Borneo, and the offence and the
entry as aforesaid are proved to the satisfaction of the officer in
command of the ship he so enters, the fine shall be deducted as
aforesaid, and an entry shall be made in the official log book of the
ship and signed by the officer to whose satisfaction the offence is
proved. (2)
Every fine so deducted shall be paid to the Superintendent. (3)
If a master or owner of a ship fails without reasonable
cause to pay any fine as required by this section, he shall be guilty
of an offence and shall be liable to a fine of six times the amount of
the fine not so paid. (4)
An act of misconduct for which any fine has been inflicted
and paid by, or deducted from the wages of, the seaman shall not be
otherwise punishable under this Ordinance. Penalty
for enticing to desert and harbouring deserters. 116. (1) If
a person by any means whatever persuades or attempts to persuade a
seaman or apprentice to neglect or refuse to join or proceed to sea,
in, or to desert from, his ship, or otherwise to absent himself from
his duty, he shall be guilty of an offence and shall be liable, in
respect of each seaman or apprentice whom he persuades or attempts to
persuade as aforesaid, to a fine of two hundred dollars. (2)
If a person wilfully harbours or secretes a seaman or
apprentice who has wilfully neglected or refused to join, or has
deserted fro, his ship knowing or having reason to believe the seaman
or apprentice to have so done, he shall be guilty of an offence and
shall be liable to, in respect of every seaman or apprentice so
harboured or secreted, a fine of five hundred dollars. Penalty on stowaways. 117. If a person secretes himself in any ship
intending to go to sea in such ship without the consent either of the
owner, agent or master, or of a mate, or of the person in charge of the
ship, or of any other person entitled to give that consent, he shall be
guilty of an offence and shall be liable to imprisonment for six months
and a fine of one thousand dollars. Chapter
18 OFFICIAL
LOG BOOKS Official log
books to be kept and to be evidence. 118. (1) An
official log book shall be kept in every North Borneo ship in the
appropriate form for that ship approved by the Director. (2)
Such official log books, which may be different for
different classes of ships, shall contain proper spaces for the entries
required by this Ordinance. (3)
The official log book may, at the discretion of the master
or owner, be kept distinct from, or united with, the ordinary ship’s
log book, so that, in all cases, the spaces in the official log book
shall be duly filled up. (4)
An entry required by this Ordinance in an official log
book shall be made as soon as possible after the occurrence to which it
relates, and, if not made on the same day as that occurrence, shall be
made and dated so as to show the date of the occurrence and of the
entry respecting it; and, if made in respect of an occurrence happening
before the arrival of the ship at her final port of discharge, shall
not be made more than twenty-four hours after that arrival. (5)
Every entry in the official log book shall be signed by
the master and by the mate or some other member of the crew, and also – (a) if it is an entry of illness, injury or
death, by the surgeon or medical practitioner on board, if any; (b) if it is an entry of wages due to a
seaman or apprentice who dies, by the mate and by some member of the
crew in addition to the master; and (c) if it is an
entry of wages due to a seaman who enters Her Majesty’s naval service,
by the seaman, or by the officer authorised to receive the seaman into
that service. (6)
Every entry made in an official log book in the manner
provided by this Ordinance shall be admissible in evidence. Entries required
in official log book. 119. The master of a North Borneo ship shall
enter or cause to be entered in the official log book the following
matters, that is to say – (a) every
conviction by a legal tribunal of a member of his crew, and the
punishment inflicted; (b) every offence committed by a member of
his crew for which it is intended to prosecute, or to enforce a
forfeiture, or to exact a fine, together with such statement concerning
the copy or reading over of that entry, and concerning the reply, if
any, made to the charge, as is required by this Ordinance or by the
Merchant Shipping Acts, as the case may be required; (c) every offence
for which punishment is inflicted on board, and the punishment
inflicted; (d) a statement
of the conduct, character, and qualification of each of his crew, or a
statement that he declines to give an opinion of those particulars; (e) every case of
illness or injury happening to a member of the crew, with the nature
thereof, and the medical treatment adopted, if any; (f) every
marriage taking place on board, with the names and ages of the parties; (g) the name of
every seaman or apprentice who ceases to be a member of the crew,
otherwise than by death, with the place, time, manner, and cause
thereof; (h) the wages due
to any seaman who enters Her Majesty’s naval service during the voyage; (i) the
wages due to any seaman or apprentice who dies during the voyage and
the gross amount of all deductions to be made therefrom; (f) every
collision with any other ship, and the circumstances under which the
same occurred; (k) every accident sustained or caused by
the ship which has occasioned any loss of life or any serious injury to
any person or any material damage to the ship affecting her
seaworthiness or her efficiency in her hull, equipments, or machinery,
and every grounding of the ship; and (l) and other matter directed by this
Ordinance to be entered. Offences in
respect of official log books. 120. (1) If
an official log book required by this Chapter to be kept is not kept in
the manner required by this Chapter, or if an entry directed by this
Ordinance to be made therein is not made at the time and in the manner
directed by this Ordinance, the master of the ship shall, in respect of
each such failure to keep an official log book or to make an entry as
aforesaid, be guilty of an offence and shall be liable, save in respect
of an offence under subsection (2) or (3) or under sections 74, 122,
124, 157, or 175, to a fine of one hundred dollars. (2)
If any person makes, or procures to be made, or assists in
making, any entry in an official log book as aforesaid in respect of
any occurrence happening previously to the arrival of the ship at her
final port of discharge more than twenty-four hours after that arrival,
he shall be guilty of an offence and shall be liable to a fine of five
hundred dollars. (3)
If any person wilfully destroys ,
mutilates or renders illegible any entry in an official log book as
aforesaid, or wilfully makes or procures to be made or assists in
making a false fraudulent entry in or omission from any such official
log book, he shall be guilty of an offence and shall be liable to
imprisonment for two years and a fine of five thousand dollars. Delivery of
official log books to Superintendent. 121. (1) The
master of every foreign-going North Borneo ship shall within
forty-eight hours after the ship’s arrival at a port in North Borneo or
upon the discharge of the crew, whichever first happens, deliver or
transmit the official log book of the voyage to the Superintendent. (2)
The master or owner of every North Borneo ship other than
a foreign-going ship shall, within twenty-one days after the thirtieth
day of June and the thirty-first day of December in every year,
transmit or deliver the official log book for the preceding half-year
to the Superintendent. (3)
Upon the delivery or transmission of an official log book
to the Superintendent under the provisions of this section, the
Superintendent shall give to the master or owner of the ship a
certificate of such delivery or transmission, and may detain any ship
to which this section applies until the conditions precedent to the
giving of the certificate exists. (4)
If the master or owner of a ship fails without reasonable
cause to deliver or transmit any official log book as required by this
section, he shall be guilty of an offence and shall be liable to a fine
of two hundred dollars. Official log
books to be sent home in case of transfer of ship, and in case of loss. 122. (1) Where
by reason of transfer of ownership or change of employment of a North
Borneo ship the official log book ceases to be required in respect of
the ship or to be required at the same date, the master or owner of the
ship shall, if the ship is then within North Borneo, within one month,
and if she is elsewhere, within six months, after such cessation
deliver or transmit to the Superintendent the official log book duly
made out to the time of the cessation. (2)
If a North Borneo ship is lost or abandoned, the master or
owner thereof, shall, if practicable, and as soon as possible, deliver
or transmit to the Superintendent the official log book duly made out
to the time of the loss or abandonment. (3)
If the master or owner of a ship fails, without reasonable
cause, to comply with any requirement of this section, he shall be
guilty of an offence and shall be liable to a fine of two hundred
dollars. Chapter
19 REGISTRATION AND RETURNS Register o
seamen. 123. The Director shall, by means of the
documents transmitted to him in pursuance of this Ordinance, and by any
other means in his power, keep at his office a register of all persons
who serve in North Borneo ships. Returns of births and deaths in North Borneo ships. 124. (1) The
master of every North Borneo ship and the master of every sea-going
British ship the managing owners of which are resident in North Borneo
and which is exempt from registry under section 3 of the Principal Act,
shall, as soon as may be after the occurrence of the birth of a child
or the death of a person happening on board his ship, record in his
official log book or otherwise the fact of the birth or death, and such
particulars as may be prescribed concerning the birth or death, or such
of them as may be known to him. (2)
The master of every ship as aforesaid shall upon her
arrival at a port in North Borneo deliver or transmit to the Director,
in such form as may be prescribed a return of the facts recorded by him
in respect to the birth of a child or the death of a person on board
such ship. (3)
The Director shall send a certified copy of the returns
relating to such births and deaths to the Registrar-General of Births
and Deaths for North Borneo, who shall cause the same to be filed and
such certified copy shall be deemed to be a certified copy of a
register for the purposes of Registration of Births and Deaths
Ordinance [Cap. 123.]. (4) If the master of any
ship fails to comply with any requirement of this section, he shall be
guilty of an offence and shall be liable to a fine of two hundred
dollars. Transmission of documents to Director. 125. The Superintendent shall take charge of
all documents which are delivered or transmitted to or retained by him
in pursuance of this Ordinance, and shall keep them for such time, if
any, as may be necessary for the purpose of settling any business
arising at his port, or for any other proper purpose, and shall, if
required, produce them for any of those purposes and he shall then
transmit such documents to the Director, who shall record and preserve
them and they shall be admissible in evidence in manner provided by
this Ordinance, and they shall, on payment of the prescribed fee, or
without payment if the Financial Secretary so directs, be open to the
inspection of any person. Documents to be handed over to successor on change of master. 126. (1) If
during the progress of a voyage of a North Borneo ship, the master is
removed, or superseded or for any other reason quits the ship, and is
succeeded in the command by some other person, he shall deliver to his
successor the various documents relating to the navigation of the ship
and to the crew thereof which are in his custody, and if he fails
without reasonable cause, so to do, he shall be guilty of an offence
and shall be liable to a fine of one thousand dollars. (2)
The successor to every master shall immediately on
assuming the command of a ship enter in the official log book a list of
the documents so delivered to him. PART IV PASSENGER
SHIPS AND GENERAL PROVISIONS RELATING
TO SURVEY Chapter
20 SURVEY Annual Survey of passenger ships. 127. (1) Subject
to the provisions of subsections (2) and (3) and of any order made
under section 128, every passenger ship shall be surveyed once at least
in each year in the manner provided in this Part. (2)
Subsection (1) shall not apply to any passenger ship
having a certificate granted by – (a) the Ministry; (b) the government of any part of the
Commonwealth, where such certificate has been declared under section
284 of the Principal Act to be of the same force as if granted under
the Act; or (c) the
government of any other part of the Commonwealth whose certificate is
accepted by the Governor as being equivalent to a certificate granted
under this Part, so
long as such certificate remains in force and applicable to the voyage
under which the vessel is about to proceed. (3)
Notwithstanding anything contained in subsection (1),
where a valid Safety Convention certificate is produced in respect of a
Safety Convention passenger ship – (a) the provisions of this Part as to the
survey of passenger ships by radio surveyors shall be deemed to have
been complied with in the case of such ship; and (b) the survey by
any government surveyor shall be limited to ascertaining the number of
passengers which the ship is fit to carry, and it shall not be
necessary for the declaration made by that surveyor to contain a
statement of any further particulars than those set out in paragraph (e) of subsection (3) of section 132: Provided that, where there is produced in
respect of any Safety Convention passenger ship a valid Safety
Convention certificate, and also a certificate issued by or under the
authority of the government of the country to which the ship belongs
showing the number of passengers which the ship is fit to carry, and
the Governor is satisfied that the number has been determined
substantially in the same manner as in the case of a British ship
registered in North Borneo, the Governor may, if he thinks fit,
dispense with the survey of the ship mentioned in paragraph (b)
and direct that the last mentioned certificate shall have effect as a
passenger ship’s certificate for the purpose of this Part. Power of Governor to exempt certain ships. 128. The Governor may, by order, declare that
all or any of the provision of this Part relating to the survey of
passenger ships shall not apply in the case of any specified passenger
ship or class of passenger ship or shall apply thereto with such
modifications as the Governor may direct. Passenger ship not to clear without certificate. 129. (1) Subject
to the provisions of subsections (2) and (3) of section 127 and to any
order made under section 128, no passenger ship shall ply or proceed to
sea or on any voyage or excursion with any passengers on board unless
the owner or master has the certificate from the Director as to survey
required by this Part the same being in force and applicable to the
voyage or excursion on which the ship is about to proceed. (2)
A passenger ship attempting to ply or go to sea may be
detained until such certificate as aforesaid is produced to the Port
Officer. Appointment and powers of surveyors of ships. 130. (1) The
Chief Secretary may appoint such number of fit and proper persons to be
government surveyors for the purposes of this Ordinance as he may think
proper and such government surveyors may be appointed as ship
surveyors, nautical surveyors, engineer surveyors or radio surveyors,
or in more than one of such capacities. (2)
Any government surveyor may, in the execution of his
duties, go on board any ship to which this Part applies at all
reasonable times and inspect the same, or any part thereof, or any of
the machinery, boats, equipments or articles on board thereof, or any
certificates of any officer thereof, to which the provisions of this
Ordinance or the Merchant Shipping Acts apply, not necessarily
detaining or delaying the ship from proceeding on any voyage; and if,
in consequence of any accident to any such ship or for any other
reason, a government surveyor considers it necessary to do so, he may
require the ship to be taken into dock for the purpose of surveying the
hull thereof. (3)
Any person who hinders any such surveyor from going on
board any ship in pursuance of subsection (2), or otherwise impedes him
in the execution of his duty under this Ordinance shall be guilty of an
offence and shall be liable to a fine of five hundred dollars. Instruction and regulations relating to surveys. 131. (1) The
Chief Secretary may issue instructions to government surveyors and may
make rules prescribing the manner in which surveys of ships are to be
made, the notice to be given to the government surveyors when surveys
are required, and the amount and payment of the fees due and of any
travelling or other expenses incurred by such surveyors in the
execution of their duties. (2)
Such instructions may specify the persons by whom and the
conditions under which any such payment shall be made. Mode of survey and declaration of survey. 132. (1) The
owner, agent or master of every passenger ship being within North
Borneo waters shall if so required (and to the extent required) by this
Part, cause the same to be surveyed by one or more government
surveyors, who shall thereupon, if satisfied that it can properly be
done, complete a declaration or declarations of survey in the
prescribed form: Provided that a survey by a
radio surveyor shall only be required in the case of a sea-going
passenger ship required by this Ordinance to be provided with a radio
installation. (2)
If, in the judgment of any such surveyor, a passenger ship
is fit to ply on international voyages while engaged in a special
passenger trade only, his declaration of survey shall state that fact. (3)
The declaration or declarations of the government surveyor
or surveyors (other than the radio surveyor) shall contain statements
of the following particulars – (a) that the hull
of the ship is sufficient for the service intended and in good
condition; (b) that the life-saving appliances, light
signals, compasses and shelter for deck passengers are such, and in
such condition, as are required by, or by any rules or regulations made
under, the Merchant Shipping Acts, or, in respect of any matter
regarding which no such requirements as aforesaid exist in respect of
the ship, such, and in such condition, as are required by this
Ordinance; (c) the time, if
less than one year, for which the hull and equipments will be
sufficient; (d) the
voyages or class of voyages on which, as regards construction and
equipment, the ship is, in the surveyor’s judgment, fit to ply; (e) the number of passengers which the ship
is, in the judgment of the surveyor, fit to carry, distinguishing, if
necessary, between the respective numbers to be carried on the deck and
in the cabins, and in different parts of the deck and cabins; those
numbers to be subject to the time of year, the nature of voyage, the
cargo carried or other circumstances, as the case requires; (f) that
the certificates or authorities of the master and mate or mates are
such as are required by the Ordinance; (g) that the
machinery of the ship is sufficient for the service intended, and in
good condition; (h) the time, if
less than one year, for which the machinery will be sufficient; (i) that the safety valves and
appliances for the prevention, detection and extinction of fire are
such, and in such condition, as are required by, or by any rules made
under, the Merchant Shipping Acts, or in respect of any matter
regarding which no such requirements as aforesaid exist in respect of
the ship, such, and in such condition, as are required by or under this
Ordinance; (j) the
limit of the weight to be placed on the safety valves; (k) the voyages
or class of voyages on which, as regards machinery, the ship is, in the
surveyor’s judgment fit to ply; (l) that
the certificates of the engineer or engineers or engine driver of the
ship are such as are required by this Ordinance. (4)
The declaration of the radio
surveyor shall contain statements of the following particulars – (a) the voyage or
class of the voyage on which, as regards radio, the ship is fit to ply; (b) that, having regard to the tonnage of
the ship and the voyages or class of voyages on which she is declared
to be fit to ply, the radio installation complies with the radio rules; (c) that the
certificates and the numbers of the radio operators are such as are
required by those rules. Transmission of declaration. 133. (1) The
owner, agent, or master of a passenger ship surveyed shall within
fourteen days after the receipt by him of a declaration of survey
transmit it to the Director. (2)
If an owner, agent or master of a passenger ship fails
without reasonable cause to transmit a declaration of survey, he shall
forfeit a sum not exceeding five dollars for every day during which the
transmission is delayed, and any sum so forfeited shall be payable on
the granting of a certificate in addition to the fee, and shall be
applied in the same manner as the fee. Issue of passenger ship’s certificate. 134. (1) Subject
to the provisions of subsection (3), the Director shall, on receipt of
the declarations of survey and if he is satisfied that the requirements
of this Part have been complied with, issue in duplicate a passenger
ship’s certificate, that is to say, a certificate stating such
compliance and stating, according to the declarations – (a) the limits,
if any, beyond which the ship is not fit to ply; and (b) the number of
passengers which the ship is fit to carry, distinguishing, if
necessary, the number to be carried in each part of the ship, and any
conditions, and variations to which the number is subject. (2)
Notwithstanding anything contained in sections 128 to 133
inclusive, the Director may accept for the purposes of subsection (1),
in lieu of any statement required under this Part to be contained in
any declaration of survey in respect of any matter, a certificate of
partial survey granted either in the United Kingdom by an authority
empowered to issue certificate under section 274 of the Principal Act,
or by the Government of any prescribed part of the Commonwealth if such
certificate relates to such matter and is substantially to the same
effects as the statement which would otherwise under this Part be
required to be contained in such declaration of survey, and if it is
for the time being in force. (3)
On receipt of a declaration made by a government surveyor
under paragraph (b) of subsection (3) of section 127,
the Director shall issue a certificate containing only a statement of
the particulars set out in paragraph (b) of subsection
(1), and a certificate so issued shall have effect as a passenger
ship’s certificate for the purposes of this Ordinance. Transmission of certificate. 135. (1) The
Director shall give notice of the issue of the passenger ship’s
certificate to the owner, agent or master of the ship, and shall, on
such owner, agent or master applying and paying the prescribed fee and
any other prescribed sums, deliver to him both copies of the
certificate. (2)
In proving the issue of a passenger ship’s certificate it
shall be sufficient to show that the certificate was duly issued by the
Director, and that due notice of the issue was given to the owner,
agent or master. (3)
Such certificate in duplicate, when completed, shall be
delivered by the Director to the owner, agent or master applying for
the same subject to payment of the fee and other sums, if any, payable
in that behalf. (4)
(a) The
owner, agent or master of every such ship shall, upon the transmission
of any such certificate as aforesaid to him or his agent, cause one of
the duplicates thereof so transmitted, to be exhibited in some
conspicuous part of the ship so as to be visible to all persons on
board the same, and shall cause it to continue to be exhibited so long
as it remains in force and such ship is in use. (b) Any owner, agent or
master contravening this subsection shall be guilty of an offence and
shall be liable to a fine of five hundred dollars. Appeal to Court
of Survey. 136. (1) If the owner, agent or master of a ship is
aggrieved – (a) by a
declaration of a government surveyor or surveyors under this Part, or
by the refusal of a government surveyor to give such declaration; or (b) by the
refusal of a government surveyor to grant any certificate which he is
empowered to grant under this Ordinance, he
may appeal, in the prescribed manner, to a Court of Survey constituted
under section 212, and upon the constitution thereof by the Governor,
such Court may make such order with respect to the costs of any such
investigation as it thinks fit, and recoverable in the same manner as
costs in Civil proceedings before a Magistrate. (2)
On any such appeal the Court of Survey shall report to the
Governor on the question raised by the appeal and the Governor, when
satisfied that the requirements of the report and the provisions of
this Part have been complied with, may grant the certificate required. (3)
An owner, agent or master of any ship preferring an appeal
under this section or under paragraph (b) of
subsection (3) of section 202 may give notice in and by the prescribed
notice of appeal that he objects to any specified person being a member
of the Court of Survey, stating the grounds of his objection; and the
Director shall forward such notice to the Governor, who may in his
discretion direct that such person shall not be a member of the court
of Survey. (4)
Subject to any order made by the Court of Survey, the
costs of, and incidental to, an appeal under this section shall follow
the event. No appeal in
certain cases. 137. Where the survey of a ship is made for
the purpose of a declaration under section 132, the person appointed to
make the survey shall, if so required by the owner, agent, master or
charterer, be accompanied on the survey by some competent person
appointed by the owner, agent, master of charterer, to be approved by
the Governor and, in such case, if those two persons agree, there shall
be no appeal to the Court of Survey as provided by section 136. Duration of certificate. 138. (1) No
certificate shall be held to be in force for the purposes of this Part
beyond a period of one year from the date of its issue or any shorter
time specified in the certificate; and no certificate shall be in force
after notice is given by the Governor to the owner, agent or master of
the ship to which the same relates that he has cancelled the same: Provided that, if any ship
is absent from North Borneo at the time of expiry of any certificate
granted, no penalty shall be incurred under this section until the ship
commences a voyage after its next return to North Borneo. (2)
The Director may require any certificate which has expired
or has been cancelled to be delivered up as he directs, and every
owner, agent or master who, without reasonable excuse, refuses or
neglects to comply with such requirement shall be guilty of an offence
and shall be liable to a fine of five hundred dollars. Governor may
cancel certificate and require fresh declaration. 139. (1) The
Governor may cancel any certificate granted under the provisions of
this Part in any case in which he has reason to believe – (a) that
the declarations of the sufficiency and good condition of the hull,
equipments and machinery of the ship have been fraudulently or
erroneously made; (b) that such
certificate has otherwise been issued upon false or erroneous
information; or (c) that, since
the making of such declarations, the hull, equipments or machinery of
the ship has or have sustained any injury or has or have been altered
without authority or is or are otherwise insufficient and
in every such case the Governor may require the owner of the ship to
have the hull, equipments or machinery of the ship again surveyed, and
to transmit a further declaration or declarations of the sufficiency
and good condition thereof, before re-issuing any certificate or
granting a fresh one in lieu thereof. (2)
The Governor may cancel any such certificate in any case
in which he has reason to believe that the certificated master of the
ship is not exercising, or is not permitted to exercise, proper control
of the ship. Government surveyors to make returns and owners to supply
information. 140. (1) (a) A government
surveyor shall, from time to time, make such returns as the Director
may require with respect to the build, dimensions, draught, burden,
rate of sailing, room for fuel and the nature and particulars of
machinery and equipments of every ship surveyed by him. (b) The owner, master and
engineer of any such ship shall, on demand give to such surveyor all
such information and assistance within his power as he may require for
the purpose of such returns. (c) Any such owner, master
or engineer who, on being applied to for that purpose, wilfully refuses
or neglects to give such information or assistance shall be guilty of
an offence and shall be liable to a fine of five thousand dollars. (2)
If any structural alteration is made in any passenger
ship, the owner, agent, charterer and master shall, within twenty-four
hours, after the alteration is made or as soon thereafter as possible,
report the same by letter to the Director, and in default without
reasonable excuse therefor, they shall be
severally guilty of an offence and shall be liable to a fine of five
thousand dollars: Provided that the due
receipt of a report from any one of the foregoing shall satisfy the
provisions of this subsection. Chapter
21 MISCELLANEOUS
PROVISIONS RELATING TO PASSENGER SHIPS Penalties for excess passengers. 141. (1) The
owner, agent, charterer or master of any passenger ship shall not
receive or have on board thereof at any place within North Borneo
waters any number of passengers which, having regard to the time,
occasion and circumstances, is in excess of the number allowed by the
passenger certificate, and in default, he shall be guilty of an offence
and shall be liable to imprisonment for six months and a fine of one
thousand dollars. (2)
If the provisions of this Part which require a passenger
ship to be surveyed and to have a passenger certificate are not
complied with in the case of any ship, the owner, agent, charterer and
master shall, without prejudice to any other remedy or penalty under
this Ordinance, be liable to the like imprisonment and to the like
penalties in respect of all excess passengers as are specified in
subsection (1) if he receives or has on board at any place within North
Borneo any number of passengers in excess of twelve. Offences. 142. If any person – (a) knowingly and wilfully makes, or assists
in making, or procures to be made, a false or fraudulent declaration or
certificate required by or under the provisions of this Part or of the
Merchant Shipping Acts relating thereto; or (b) forges, assists in forging, procures to
be forged, fraudulently alters, assists in fraudulently altering, or
procures to be fraudulently altered, any such declaration or
certificate, or anything contained in, or any signature to, any such
declaration or certificate, he
shall, in respect of each contravention, be guilty of an offence and
shall be liable to imprisonment for two years and a fine of five
thousand dollars. Equipment of passenger ships. 143. (1) Every
passenger ship of which a survey is required by this Part shall – (a) be provided with means to prevent
over-pressure in aany part of the boilers
and machinery; and in particular, every boiler and other pressure
vessel used for generating steam shall be
provided with not less than two safety valves; (b) have the
ship’s compasses properly adjusted from time to time, such adjustment
to be made to the satisfaction of a government surveyor and according
to such regulations as may be prescribed; (c) be provided
with means for making the signals of distress at night specified in the
collisions regulations; and (d) be provided with such shelter for the
protection of deck passengers, if any, as the Director having regard to
the nature of the passage, the number of deck passengers to be carried,
the season of the year, the safety of the ship and the circumstances of
the case, may require. (2)
If any such passenger ship as aforesaid plies or goes to
sea from any port in North Borneo without being provided as required by
paragraphs (a), (c) and (d)
of subsection (1), then, for each default in any of the above
requisites, the owner shall, if he is in fault, be guilty of an offence
and shall be liable to a fine of one thousand dollars, and the master
shall, if he is at fault, be guilty of an offence and shall be liable
to a fine of five hundred dollars. (3)
If any requirement of this section, or of any regulations
relating to the number of permissible passengers, is not complied with
in the case of any passenger ship, the Port Officer may refuse port
clearance and, if any such ship attempts to go to sea without port
clearance, the Port Officer may detain her. Prohibition on putting undue or excess weight on safety-valve. 144. Any person who places an undue weight on
the safety-valve of any ship or increases such weight beyond the limits
fixed by a government surveyor shall, in addition to any other
liabilities, be guilty of an offence and shall be liable to a fine of
one thousand dollars. Port officer may
refuse clearance to ship carrying excess passengers. 145. (1) (a) The master of
every ship shall, on application to the Port Officer for a port
clearance, state the number of passengers he proposes to carry on the
then projected voyage; and, if such numbers is in excess of the number
allowed by the passenger certificate, or exceeds twelve in the case of
a ship which is not provided with a passenger certificate, the Port
Officer may refuse port clearance. (b) Any master who
wilfully misrepresents the number of passengers so about to be carried,
or, carrying any passenger, plies or proceeds to sea from any port in
North Borneo without a port clearance, shall be guilty of an offence
and shall be liable to imprisonment for six months and a fine of one
thousand dollars. (2)
The master of any ship who after having obtained port
clearance, piles or proceeds to sea with any number of passengers
greater than allowed by the clearance shall be guilty of an offence and
shall be liable to a fine of five hundred dollars, in addition to a
fine of fifty dollars for every passenger in excess of the number
permitted to be carried by the clearance. (3)
When the master of any ship has become liable under the
provisions of subsection (2) to the penalty therein mentioned, the
owner, agent or charterer of such ship shall be liable to a like
penalty unless he proves that such passengers were shipped without his
knowledge or consent, and that he derived not profit, benefit or
advantage from the shipping of such passengers. (4)
The Port Officer may refuse port clearance to any
passenger ship except on the production of the passenger certificate
(being a certificate then in force and applicable); and he may detain
such ship until such certificate is produced. Power to enter on and inspect passenger ship. 146. The Director
or any person authorised by him may at all times enter on any passenger
ship and inspect her and her fittings and the provisions and stores in
her, and may muster and count the passengers on board. Passenger landed
or embarked by means of tenders. 147. Where a passenger ship takes on board
passengers from a tender, or lands passengers by means of a tender, she
shall for the purposes of this Part, be deemed to be taking the
passenger on board from, or landing the passenger at, the port from or
to which the tender comes or goes, and passengers conveyed in a tender
to or from a passenger ship from or to a port in North Borneo shall,
for the purposes of this Part, be deemed to be a passengers carried by
such ship from or to a port in North Borneo. Prohibition of carriage of dangerous cargo. 148. (1) No
passenger ship for which a certificate of survey is required by this
Part shall carry as ballast or as cargo any goods which by reason of
their nature, quantity, or mode of stowage are either singly or
collectively liable to endanger the lives of the passengers or the
safety of the ship. (2)
If goods are carried in any ship in contravention of
subsection (1), the owner, agent, charterer and master shall be guilty
of an offence and shall be liable to a fine of five thousand dollars;
and the ship shall be deemed for the purpose of Chapter 31 to be unsafe
by reason of improper loading. PART
V SAFETY Chapter
22 PREVENTION
OF COLLISIONS Inspection as to lights and fog signals. 149. (1) A
government surveyor may inspect any British, North Borneo or foreign
ship for the purpose of seeing that the ship is properly provided with
lights and the means of making fog signals in conformity with the
collision regulations; and, if the surveyor finds that the ship is not
so provided, he shall give to the master or owner notice in writing,
pointing out the deficiency and also what is, in his opinion, requisite
in order to remedy the same. (2)
Every notice so given shall be communicated by such
surveyor to the Port Officer and the ship shall be detained, until a
certificate under the hand of a government surveyor is produced to the
effect that the ship is properly provided with lights and with the
means of making fog signals, in conformity with the collision
regulations. (3)
For the purpose of an inspection under this section a
government surveyor shall have all the powers of an inspector under
this Ordinance. (4)
Where the certificate as to lights and fog signals is
refused, an owner may appeal to the Court of Survey in the prescribed
manner. (5)
On any such appeal, the Court of Survey shall report to
the Governor on the question raised by the appeal, and the Governor,
when satisfied that the requirement of the report and of the collision
regulations as to lights and fog signals have been complied with, may
grant or direct a government surveyor or other person appointed by him
to grant the certificate. (6)
Subject to any order made by the Court of Survey, the
costs of and incidental to the appeal shall follow the event. (7)
A government surveyor, in making an inspection under this
section, shall, if the owner of the ship so requires, be accompanied on
the inspection by some person appointed by the owner, and, if, in that
case, the government surveyor and the person so appointed agree, there
shall be no appeal under this section to the Court of Survey. (8)
The prescribed fees shall be paid in respect of an
inspection of lights and fog signals under this section. Chapter
23 REPORT
OF ACCIDENTS AND LOSS OF SHIPS Reports to the Port Officer of accidents to ships. 150. (1) Where
any British or North Borneo ship, or any foreign ship carrying
passengers between places in North Borneo, is within North Borneo and
has sustained or caused any accident occasioning loss of life or any
serious injury to any person, or has received any material damage
affecting her seaworthiness or her efficiency either in her hull or in
any part of her machinery, the owner and master shall, as soon as
possible after the happening of the accident or damage, transmit to the
Port Officer by letter signed by the owner or master, a report of the
accident or damage, and of the probable occasion thereof, stating the
name of the ship, her official number, if any, the port to which she
belongs, and the place where she is. (2)
If the owner or master of a ship fails without reasonable
cause to comply with this section, he shall be guilty of an offence and
shall be liable to a fine of one thousand dollars. Notice of loss of North Borneo ship to be given to the Port
Officer. 151. (1) If
the owner or agent of any North Borneo ship has reason, owing to the
non-appearance of the ship or to any other circumstance, to apprehend
that ship has been wholly lost, he shall, as soon as conveniently may
be, send to the nearest Port Officer notice in writing of the loss and
of the probable occasion thereof, stating the name of the ship, her
official number, if any, and the port to which she belongs. (2)
If the owner or agent of a ship fails without reasonable
cause to comply with this section within a reasonable time, he shall be
guilty of an offence and shall be liable to a fine of one thousand
dollars. Chapter
24 LIFE-SAVING
APPLIANCES Rules as to life-saving appliances. 152. (1) The
Governor in Council may make rules, in this Chapter referred to as the
“rules for life-saving appliances”, with respect to all or any of the
following matters, namely – (a) the arranging
of ships into classes, having regard to the service in which they are
employed, to the nature and duration of the voyage and to the number of
persons carried; (b) the number and description of the boats,
life-boats, life-jackets, life-rafts, line-throwing appliances and
life-buoys to be carried by ships, according to the class in which the
ships are arranged and to their mode of construction, and the
equipments to be carried by such boats and rafts, and the methods to be
provided to get such boats and other life-saving appliances into the
water, which methods may include oil for use in stormy water; (c) the quantity, quality and description of
buoyant apparatus to be carried on board ships, either in addition to
or in substitution for boats, life-boats, life-rafts, life-jackets and
life-buoys; (d) the marking of boats, life-boats,
life-rafts and buoyant apparatus so as to show the dimensions thereof
and the number of persons authorized to be carried thereon; (e) the manning
of boats and life-boats, and the qualifications and certificates of
life-boat men; (f) the
provision to be made for mustering the passengers and crew and for
embarking them in the boats and life-boats (including provision as to
the lighting of, and as to the means of ingress to and egress from
different parts of the ship); (g) the
practising of boat drills; (h) the
assignment of specific duties to each member of the crew in the event
of an emergency; (i) the
methods to be adopted and the appliances to be carried for the
prevention, detection and extinction of fire; (j) the
inspection of life-saving appliances during their construction, and
certification of boats, buoyant apparatus and other life-saving
appliances intended to form part of the life-saving appliances of ships. (2)
The Governor may direct that the rules for life-saving
appliances shall not apply to any ship, not being a passenger ship, if – (a) being a British or North Borneo ship she
is proved to be equipped in compliance with the rules for life-saving
appliances made by the Minister with respect to such ships; or (b) being a ship
of a foreign country in which the provisions in force relating to
life-saving appliances appear to him to be as effective as the rules
for life-saving appliances, on proof that those provisions are complied
with in the case of that ship. Duties of owner and master as to carrying life-saving
appliances. 153. It shall be the duty of the owner and
master of every ship to which the rules for life-saving appliances
apply to see that his ship is provided, in accordance with the rules
for life-saving appliances, with such of those appliances as, having
regard to the nature of the service on which the ship is employed, and
the avoidance of undue encumbrance of the ship’s deck, are best adapted
for securing the safety of her crew and passengers. Penalty for contravention of rules for life-saving appliances. 154. In the case of any ship to which the
rules for life-saving appliances apply – (a) if the ship
proceeds on any voyage or excursion without being so provided in
accordance with the rules applicable to the ship; (b) if any of the appliances with which the
ship is so required to be provided are lost or rendered unfit for
service in the course of the voyage or excursion through the wilful
fault ot negligence of the owner or master; (c) if the master
wilfully neglects to replace or repair, on the first opportunity, any
such appliances lost or injured in the course of the voyage or
excursion; (d) if such appliances are not kept so as to
be at all times fit and ready for use; or (e) if any
provision of the rules for life-saving applicable to the ship is
contravened or not complied with, the
owner of the ship, if he is in fault, shall, for each contravention, be
guilty of an offence and shall be liable to a fine of one thousand
dollars; and the master of the ship, if he is at fault, shall, for each
contravention be guilty of an offence and shall be liable to a fine of
five hundred dollars. Survey of ship with respect to life-saving appliances. 155. (1) A
government surveyor may inspect any ship, other than s Safety
Convention passenger ship in respect of which a valid Safety Convention
certificate is produced, for the purpose of seeing that the rules for
life-saving appliances have been complied with in her case, and for the
purpose of any such inspection shall have all the powers of an
inspector under this Ordinance. (2)
If the surveyor finds that the rules for life-saving
appliances have not been complied with, he shall give written notice to
the owner or master stating in what respect those rules have not been
complied with, and what, in his opinion, is required to rectify the
matter. (3)
Every notice so given shall be communicated by such
surveyor to the Port Officer, and port clearance shall not be granted
to the ship, and the ship shall be detained until a certificate under
the hand of a government surveyor is produced to the effect that the
matter has been rectified. Fees for inspecting life-saving appliances. 156. There shall be paid in respect of every
inspection of a ship under section 155 such fees as may be prescribed. Entry in log book of boat drill, etc. 157. (1) The
master of every ship to which the rules for life-saving appliances
apply shall cause to be entered in the official log book a statement,
or, if there is no official log book, shall cause some other record to
be kept, of every occasion on which boat drill or fire drill is
practised on board the ship, or on which the appliances and equipment
required by the rules for life-saving appliances to be carried are
examined to see whether they are fit and ready for use, and the result
of any such examination; and if – (a) in
the case of a passenger ship, boat drill or fire drill is not practised
on board the ship in any weeks; (b) in the case of any other ship, boat
drill or fire drill is not practised on board the ship in any month; or (c) in
the case of any ship, such appliances and equipment are not examined in
any such period as is prescribed by such rules, the
master shall cause a statement to be entered, or other record to be
kept, as aforesaid, of the reasons why the drill was not practised, or
the appliances and equipment were not examined, in that week, month or
period. (2)
The master shall, if and when required by any Port Officer
or any government surveyor produce for inspection any such entry or
record. (3)
If the master fails to comply with any requirement of this
section, he shall be guilty of an offence and shall be liable to a fine
of five hundred dollars. Application of rules as to life-saving appliances to foreign
ships in North Borneo waters. 158. Sections 152 to 155 inclusive shall
apply to all foreign ships while within North Borneo to the same extent
as they apply to British ships: Provided that those sections
and section 157 shall not apply to – (a) any Safety
Convention ship which carries a Safety Convention certificate; or (b) any ship of a country other than a
Safety Convention country with regard to which it has been declared by
Order of Her Majesty in Council that the provisions in force in that
country relating to life-saving appliances are as effective as those of
the Merchant Shipping Acts, on proof that such former provisions are
complied with in the case of that ship. Chapter
25 STABILITY Information about ship’s stability. 159. (1) There shall be carried on board every North
Borneo ship whose keel is laid after the commencement of this Chapter,
such information in writing about the ship’s stability as is necessary
for the guidance of the master in loading and ballasting the ship. (2)
Such information shall be in such a form as may be
approved by the Director (who may approve the provision of the
information in the form of a diagram or drawing only) and shall be
based on the determination of the ship’s stability by means of an
inclining test of the ship: Provided
that the Director may allow the information to be based on a similar
determination of the stability of a sister ship. (3)
When any information under this section is provided for
any ship, the owner shall send a copy thereof to the Director: Provided that the owner
shall not be required to send a copy of any information to the Director
if a previous copy of the same information has been sent to the
Director. (4)
If any such ship proceeds, or attempts to proceed, to sea
without such information as aforesaid on board, the owner or master of
the ship shall be guilty of an offence and shall be liable to a fine of
one thousand dollars; and, if the owner of any ship contravenes
subsection (3), he shall be liable to a like fine. Information under section 159 to be document relating to
navigation of a ship. 160. It is hereby declared that, for the
purposes of any enactment requiring documents relating to navigation to
be delivered by the master of a ship to his successor, information
under section 159 shall be deemed to be a document relating to the
navigation of the ship. Chapter
26 GENERAL
EQUIPMENT Adjustment of compasses and provision of hose. 161. (1) Every
sea-going mechanically propelled British and North Borneo ship, if
employed to carry passengers, shall have her compasses, properly
adjusted from time to time; and every such ship not used wholly as a
tug shall be provided with a hose capable of being connected with the
engines of the ship, and adapted for extinguishing fire in any part of
the ship. (2)
If any such ship plies or goes to sea from any port in
North Borneo and any requirement of this section is not complied with,
then for each matter in which default is made the owner, if he is in
fault, shall be guilty of an offence and shall be liable to a fine of
two thousand dollars, and the master, if he is in fault, shall be
guilty of an offence and shall be liable to a fine of one thousand
dollars. Report of dangers to navigation. 162. (1) The
master of any North Borneo ship which is within North Borneo and which
has met with any dangerous derelict or any other direct danger to
navigation shall, if possible, send information accordingly to any
ships which may be in the vicinity, and shall also report such derelict
or other danger to the Port Officer at the earliest opportunity. (2)
If the master of a ship fails to comply with any of the
provisions of this section, he shall be guilty of an offence and shall
be liable to a fine of one thousand dollars. Signalling lamps. 163. No North Borneo ship being a ship of
over one hundred and fifty tons gross tonnage, shall proceed to sea on
any voyage from a port in North Borneo to a port not in North Borneo
unless the ship is provided with a signalling lamp of a type approved
by the Director, and, if any ship proceeds or attempts to proceed to
sea in contravention of this section, the owner or master of such ship
shall be guilty of an offence and shall be liable to a fine of two
hundred dollars. Chapter
27 LOAD
LINES Definition. 164. For the purposes of this Chapter – “Load
Line Convention” means the International Load Line Convention signed on
behalf of the Government of the United Kingdom in London on the 5th day
of July, 1930; “Load
Line Convention certificate” means a certificate issued in accordance
with the terms of the Load Line Convention; “Load
Line Convention country” means – (a) a country the
government of which has been declared by Her Majesty in Council to have
accepted the Load Line Convention, and has not been so declared to have
denounced that Convention; (b) a territory
to which it has been so declared that the Load Line Convention extends,
not being a territory to which it has been so declared that that
Convention has ceased to extend. “Load
Line Convention ship” means a ship of one hundred and fifty tons gross
tonnage and upwards belonging to the countries to which the Load Line
Convention applies. Ships exempt
from provisions relating to load lines. 165. The following ships are exempt from the
provisions of this Chapter namely – (a) sailing
ships, other than foreign-going ships, of less than three hundred tons
gross tonnage; (b) ships solely
engaged in fishing; and (c) pleasure
yachts. Definition of “load line ships”. 166. Ships which are not exempt from the
provisions of this Ordinance relating to load line by virtue of section
165 are hereafter in this Chapter referred to as “load line ships”. Load line rules. 167. (1) The
Governor in Council may make such rules (in this Chapter referred to as
:the load line rules”) as appear to him to be necessary for the purpose
of giving effect to the provisions of Articles 6 to 10 inclusive of the
Load Line Convention and Annex I and Annex II thereto. (2)
Such of the load line rules as are made to give effect to
Part II of Annex I to the Load Line Convention are in this Chapter
referred to as “the conditions of assignment’. Marking of deck-lines and load lines. 168. (1) No
North Borneo load line ship being a ship the keel of which was laid
after the commencement of this Chapter shall proceed to sea unless – (a) the ship has
been surveyed in accordance with the load line rules; (b) the ship
complies with the conditions of assignment; (c) the ship is marked on each side with a
mark (in this Chapter referred to as a “deck-line”) indicating the
position of the uppermost complete deck as defined in the load line
rules, and with marks (in this Chapter referred to as “load lines”)
indicating the several maximum depths to which the ship can be safely
loaded in various circumstances prescribed by the load line rules; (d) the deck-line and load lines are of the
description required by the load line rules, the deck-line is in the
position required by those rules and the load lines are of the number
required by such of those rules as are applicable to the ship; and (e) the load
lines are in the position required by such of the load line rules as
are applicable to the ship. (2)
No North Borneo load line ship being a ship the keel of
which was laid before the commencement of this Part shall proceed to
sea unless – (a) the ship has been
surveyed and marked in accordance with paragraphs (a),
(c) and (d) of subsection (1); (b) the ship complies with the conditions of
assignment in principle and also in detail so far as, in the opinion of
the Director, is reasonable and practicable having regard to the
efficiency of the protection of opening, the guard rails, the freeing
ports and the means of access to the crew’s quarters provided by the
arrangements, fittings and appliances existing on the ship at the time
when she is first surveyed under this section; and (c) the load lines are either in the
position required by paragraph (e) of subsection (1)
or in the position required by the tables used by the Board of Trade on
the 31st day of December, 1906, for fixing the position of load lines,
subject to such modifications of those tables and of the application
thereof, approved by the Board of Trade under section 438 of the
Principal Act as were in force immediately before the 5th day of July,
1930. (3)
If any ship proceeds or attempts to proceed
to sea in contravention of this section the master and the owner of the
ship shall be guilty of an offence and shall be liable to a fine of two
thousand dollars. (4)
Any ship attempting to proceed to sea without being
surveyed and marked as required by this section may be detained until
she has been so surveyed and marked; and any ship which does not comply
with the conditions of assignment to the extent required in her case by
this section shall be deemed to be unsafe for the purpose of Chapter 31. Submersion of load line. 169. (1) A
North Borneo load line ship shall not be so loaded as to submerge in
salt water, when the ship has no list, the appropriate load line on
each side of the ship, that is to say, the load line indicating or
purporting to indicate the maximum depth to which the ship is for the
time being entitled under the load line rules to be loaded. (2)
If any such ship is loaded in contravention of this
section, the master and owner of the ship shall be guilty of an offence
and shall be liable to a fine of two thousand dollars, and to such
additional fine, not exceeding the amount hereafter in this section
specified, as the Court thinks fit to impose having regard to the
extent to which the earning capacity of the ship was, or would have
been, increased by reason of the submersion. (3)
The additional fine mentioned in subsection (2) shall not
exceed two thousand dollars for every inch or fraction of an inch by
which the appropriate load line on each side of the ship was submerged,
or would have been submerged if the ship had been in salt water and lad
no list. (4)
In any proceedings against an owner or master in respect
of a contravention of this section, it shall be a good defence to prove
that the contravention was due solely to deviation or delay, being
deviation or delay caused solely by stress of weather or other
circumstances which neither the master nor the owner nor the charterer,
if any, could have prevented or forestalled. (5)
Without prejudice to any proceedings under the provisions
of subsections (1) to (4) inclusive, any ship which is loaded in
contravention of this section may be detained until she ceases to be so
loaded. Miscellaneous offences in relation to marks. 170. If – (a) the owner or master of a North Borneo
load line ship which has been marked in accordance with the provisions
of this Chapter fails without reasonable cause to keep the ship so
marked; or (b) any person conceals, removes, alters,
defaces, or obliterates, or suffers any person under his control to
conceal, remove, alter, deface, or obliterate, any mark placed on any
such ship in accordance with the provisions of sections 167, 168 and
169 except with the authority of a person entitled under the load line
rules to authorize the alteration of the mark or except for the purpose
of escaping capture by an enemy, he
shall be guilty of an offence and shall be liable to a fine of two
thousand dollars. Inspection of ships with respect to load lines. 171. A government surveyor may inspect any
North Borneo load line ship for the purpose of seeing that the
provisions of this Chapter have been complied with in the case of such
ship, and for the purpose of any such inspection a government surveyor
shall have all the powers of an inspector under this Ordinance. Issue of load line certificates and effect thereof. 172. (1) Where
a North Borneo load line ship has been surveyed and marked in
accordance with the provisions of section 168 and complies with the
conditions of assignment to the extent required in her case by those
provisions, there shall be issued to the owner of the ship on his
application, and on payment of such fee as may be prescribed by the
load line rules a load line certificate (in this Chapter referred to as
“a North Borneo load line certificate”). (2)
Every such certificate shall be issued either by the
Director or by such other person as may be authorized in that behalf by
the Director, and shall be issued in such form and manner as may be
prescribed by the load line rules. (3)
Any such certificate issued by the Director may be signed
on behalf of the Director by any person authorized by him for the
purpose. (4)
Where a North Borneo load line certificate, issued in
pursuance of this section and for the time being in force, is produced
in respect of a ship, such ship shall, for the purposes of the
provisions of sections 167 to 171 inclusive, be deemed to have been
surveyed as required by section 168 and, if the deck-line and load
lines on the ship are of the number and description required by the
load line rules and the position of the deck-line and load lines
corresponds with the position specified in the certificate, the ship
shall be deemed to be marked as required by section 168. Duration, renewal and cancellation of certificates. 173. (1) Every
North Borneo load line certificate issued by or under the authority of
the Director shall, unless it is renewed in accordance with the
provisions of subsection (2), expire at the end of such period, not
exceeding five years from the date of its issue, as may be specified
therein. (2)
Any such load line certificate may, after a survey not
less effective than the survey required by load line rules before the
issue of the certificate, be renewed from time to time by the Director
or by any person authorized by the Director to issue a North Borneo
load line certificate, for such period (not exceeding five years on any
occasion) as the Director or such person thinks fit. (3)
The Director shall cancel any such load line certificate
in force in respect of any ship, if he has reason to believe that – (a) material
alterations have taken place in the hull or superstructures of the ship
which affect the position of the load lines; or (b) the fittings
and appliances for the protection of openings, the guard rails, the
freeing ports, or the means of access to the crew’s quarters have not
been maintained on the ship in as effective a condition as they were in
when the certificate was issued. (4)
The owner of every ship in
respect of which any such certificate has been issued shall, so long as
the certificate remains in force, cause the ship to be surveyed in such
manner as may be prescribed by the load line rules once at least in
each year after the issue of the certificate for the purpose of seeing
whether the certificate should remain in force, having regard to
subsection (3), and if the ship is not so surveyed, the Director shall
cancel the certificate: Provided that the Director
if he thinks fit in any particular case, may extend such period of one
year. (5)
Where any such load line certificate has expired or been
cancelled, the Director may require the owner or master of the ship to
which the certificate relates to deliver up the certificate as he
directs; and the ship may be detained until such requirement has been
complied with; and, if the owner or master fails without reasonable
cause to comply with such requirement, he shall be guilty of an offence
and shall be liable to a fine of one hundred dollars. (6)
On the survey of any ship in pursuance of this section
there shall be paid by the owner of the ship such fees as may be
prescribed. Ships not to proceed to sea without certificate. 174. (1) No
North Borneo load line ship shall proceed to sea unless there is in
force in respect of the ship a North Borneo load line certificate. (2)
The master of every North Borneo load line ship shall
produce to the Port Officer the certificate which is required by
subsection (1) to be in force when the ship proceeds to sea, and port
clearance shall not be granted, and the ship may be detained, until
that certificate is so produced. (3)
The master of every ship which proceeds or attempts to
proceed to sea in contravention of this section shall be guilty of an
offence and shall be liable to a fine of two thousand dollars. Publication of load line certificate and particulars relating
to depth of loading. 175. (1) Where
a North Borneo load line certificate has been issued in pursuance of
the provisions of this Chapter in respect of a North Borneo load line
ship – (a) the owner of the ship shall forthwith on
the receipt of the certificate cause it to be framed and posted up in
some conspicuous place on board the ship, and to be kept so framed and
posted up and legible so long as the certificate remains in force and
the ship is in use within North Borneo; and (b) the master of
the ship, before making any other entry in any official log book, shall
enter therein the particulars as to the position of the deck-line and
load lines specified in the certificate. (2)
Before any North Borneo load line ship leaves any dock,
wharf, port or other place in the North Borneo for the purpose of
proceeding to sea, the master of such ship shall – (a) enter in the official log book such
particulars relating to the depth to which the ship is for the time
being loaded as may be prescribed; and (b) cause a notice in such form and
containing such of the above mentioned particulars as may be prescribed
to be posted up in some conspicuous place on board the ship and to be
kept so posted up and legible while the ship remains within North
Borneo. (3)
If the master or owner of any North Borneo load line ship
fails to comply with the provisions of this section he shall be guilty
of an offence and shall be liable to a fine of two hundred dollars. Insertion of particulars as to load lines in agreements with
crew. 176. (1) Before
an agreement with the crew of any North Borneo load line ship in
respect of which a North Borneo load line certificate is in force, is
signed by any member of the crew, the master of the ship shall insert
in the agreement the particulars as to the position of the deck-line
and load lines specified in the certificate; and, if he fails to do so,
he shall be guilty of an offence and shall be liable to a fine of two
hundred dollars. (2)
In the case of a North Borneo load line ship being a
foreign-going ship, the Superintendent shall not proceed with the
engagement of the crew until – (a) there is produced to him a North Borneo
load line certificate for the time being in force in respect of the
ship; and (b) he is
satisfied that the particulars required by this section have been
inserted in the agreement with the crew. Survey, marking
and conditions of assignment in the case of ships not registered in
North Borneo. 177. The provisions of section 168 shall
apply to load line ships not registered in North Borneo proceeding or
attempting to proceed to sea from ports in North Borneo as they apply
to North Borneo load line ships but subject to the following
modifications, namely – (a) that section shall not apply to a Load
Line Convention ship, if a valid Load Line Convention certificate is
produced in respect of the ship; and (b) subject to
the provisions of paragraph (a), a foreign ship which
does not comply with the conditions of assignment to the extent
required in her case by section 168 shall be deemed to be unsafe for
the purpose of Chapter 31. Submersion of
load line on ships not registered in North Borneo. 178. The provisions of section 169 shall
apply to load line ships not registered in North Borneo while they are
within any port in North Borneo as they apply to North Borneo load line
ships but subject to the following modifications, namely – (a) no Load Line Convention ship shall be
detained and no proceedings shall be taken against the owner or master
thereof, by virtue of that section, except after inspection by a
government surveyor as provided by section 180; and (b) the
expression “the appropriate load line”, in relation to any ship not
registered in North Borneo shall mean – (i) in
the case of a Load Line Convention ship in respect of which there is
produced on such an inspection as aforesaid a valid Load Line
Convention certificate, the load line appearing by the certificate to
indicate the maximum depth to which the ship is for the time being
entitled under the Load Line Convention to be loaded; and (ii) in any other case, the load line
which corresponds with the load line indicating the maximum depth to
which the ship is for the time being entitled under the load line rules
to be loaded or, if no load line on the ship corresponds as aforesaid,
the lowest load line thereon. Inspection of
ships not registered in North Borneo. 179. The provisions of section 171 shall
apply to load line ships, other than North Borneo ships and Load Line
Convention ships, while they are within any port in North Borneo, as
they apply to North Borneo load line ships. Inspection and control of Load Line Convention ships. 180. (1) A
government surveyor may go on board any Load Line Convention ship, when
within any port in North Borneo for the purpose of demanding the
production of any load line certificate for the time being in force in
respect of the ship. (2)
If a valid Load Line Convention certificate is produced to
a government surveyor on any such demand, such surveyor’s powers of
inspecting the ship with respect to load line shall be limited to
seeing – (a) that the ship
is not loaded beyond the limits allowed by the certificate; (b) that the
position of the load lines on the ship corresponds with the position
specified in the certificate; (c) that no
material alterations have taken place in the hull or superstructures of
the ship which affect the position of the load lines; and (d) that
the fittings and appliances for the protection of openings, the guard
rails, the freeing ports and the means of access to the crew’s quarters
have been maintained on the ship in as effective a condition as they
were in when the certificate was issued; and,
for the purpose of any such inspection, such surveyor shall have all
the powers of an inspector under this Ordinance. (3)
If it is found on any such inspection that the ship is
loaded beyond the limits allowed by the certificate the ship may be
detained and proceedings may be taken against the master or owner
thereof under section 169. (4)
If it is found on any such inspection that the load lines
on the ship are not in the position specified in the certificate, the
ship may be detained until the matter has been rectified to the
satisfaction of a government surveyor. (5)
If it is found on any such inspection that the ship has
been so materially altered in respect of the matters referred to in
paragraphs (c) and (d) of subsection
(2) that the ship is manifestly unfit to proceed to sea without danger
to human life, the ship shall be deemed to be unsafe for the purpose of
sections 197 and 198 in the case of a British ship, or for the purpose
of section 202 in the case of a foreign ship: Provided that where the ship
has been detained under either section 198 or 202 the Director shall
order the ship to be released as soon as he is satisfied that the ship
is fit to proceed to sea without danger to human life. (6)
If a valid Load Line Convention certificate is not
produced to a government surveyor on such demand as aforesaid, such
surveyor shall have the same power of inspecting the ship, for the
purpose of seeing that the provisions of this Chapter have been
complied with, as if the ship were a North Borneo ship. (7)
For the purposes of this section, a ship shall be deemed
to be loaded beyond the limits allowed by the certificate if she is so
loaded as to submerge in salt water, when the ship has no list, the
load line appearing by the certificate to indicate the maximum depth to
which the ship is for the time being entitled under the Load Line
Convention to be loaded. Load line
certificate of ships not registered in North Borneo. 181. (1) The
provisions of this Chapter relating to the issue, effect, duration and
cancellation of North Borneo load line certificate shall apply to load
line ships not registered in North Borneo as they apply to North Borneo
load line ships, but so that the survey required for the purpose of
seeing whether the certificate should remain in force shall take place
when required by the Director. (2)
For the purposes of this Chapter a United Kingdom load
line certificate issued under section 47 of the Merchant Shipping
(Safety and Load Line Convention) Act, 1932, shall have the same effect
as a North Borneo load line certificate. (3)
Where Her Majesty has by Order in Council under subsection
(2) of section 59 of the Merchant Shipping (Safety and Load Line
Conventions) Act, 1932, directed that load line certificates issued in
pursuance of the provisions of the law in force in any part of the
Commonwealth outside the United Kingdom and outside North Borneo or in
any foreign country in which for the time being Her Majesty has
jurisdiction, in respect of British ships (or any class or description
of British ships) registered in that part of the Commonwealth or in
that foreign country, or in pursuance of the provisions of the law in
force in any foreign country in respect of ships (or any class or
description of ships) of that foreign country, as the case may be,
shall have the same effect for the purpose of Part II of the above
mentioned Act as United Kingdom load line certificates, any load line
certificate so issued shall have the same effect, for the purpose of
this Chapter, as a North Borneo load line certificate. Certificate to
be produced to the Port Officer by ships not registered in North Borneo. 182. The master of every load line ship,
other than a North Borneo ship shall produce to the Port Officer either
a North Borneo load line certificate, or a valid Load Line Convention
certificate, or a certificate having effect under this Ordinance as a
North Borneo load line certificate being a certificate for the time
being in force in respect of the ship, and port clearance shall not be
granted, and the ship may be detained, until the certificate required
by this section is so produced. Chapter
28 RADIO Radio requirements. Offences and penalty. 183. (1) Every
sea-going North Borneo ship, being a passenger ship or a ship of
sixteen hundred tons gross tonnage or upwards, shall be provided with a
radio telegraph installation, which shall be at least sufficient to
comply with the radio rules and with one or more qualified operators at
least, in accordance with those rules and shall maintain such radio
service as may be prescribed in those rules; and a radio telegraph
installation or a radio telephone installation, at the option of the
owner shall be provided on every sea-going North Borneo ship, which is
not a passenger ship, of five hundred tons gross tonnage or upwards but
less than sixteen hundred tons gross tonnage: Provided that the Governor
may exempt any ships or classes of ships from the obligations imposed
by this section if he is of the opinion that having regard to the
nature of the voyages on which those ships are engaged, or other
circumstances of the case, the provision of radio apparatus thereon is
unnecessary. (2)
If the requirements of subsection (1) are not complied
with in the case of any ship, the master or owner of the ship shall be
guilty of an offence and shall be liable to a fine of five thousand
dollars. Inspection of ships by radio surveyors. 184. (1) A
radio surveyor may inspect any ship for the purpose of seeing that such
ship is properly provided with a radio installation and with qualified
operators in conformity with the requirements of this Chapter, and for
the purpose of such inspection he shall have all the powers of an
inspector under this Ordinance. (2)
If a radio surveyor finds that any ship inspected under
subsection (1) is not provided with a radio installation, or with
qualified operators as aforesaid, he shall give to the master or owner
of the ship notice in writing pointing out the deficiency and also
pointing out what, in his opinion is requisite to remedy the deficiency. (3)
There shall be paid in respect of every inspection of a
ship under this section such fees as may be prescribed. Applications of
sections 183 and 184 to ships not registered in North Borneo. 185. Subject to the provisions of section
186, the provisions of sections 183 and 184 shall apply to ships other
than North Borneo ships while they are within any port in North Borneo
in like manner as they apply to North Borneo ships. Radio provisions applicable to ships holding Safety
Convention certificates. 186. (1) Where
a valid Safety Convention certificate is produced in respect of a
Safety Convention ship, being a passenger ship or being a ship of five
hundred tons gross tonnage or upwards, then – (a) if the certificate shows that the ship
is wholly exempt from the provisions of the Safety Convention relating
to radio, the ship shall be exempt from the provisions of sections 183
and 184; and (b) if the
certificate shows that the ship is not wholly exempt from those
provisions of the Safety Convention, the provisions contained in
subsections (2) and (3) shall apply to the ship in lieu of the
provisions of sections 183 and 184. (2)
A radio surveyor may inspect the ship for the purpose of
seeing that the radio installation and the number of qualified
operators carried on the ship corresponds substantially with the
particulars stated in the certificate. (3)
If upon any such inspection it appears to the radio
surveyor that the ship cannot proceed to sea without danger to the
passengers or crew owing to the fact that the radio installation or the
number of operators does not correspond substantially with those
particulars, he shall give to the master notice in writing pointing out
the deficiency and also pointing out what, in his opinion, is requisite
to remedy the deficiency. Ship may be
detained until deficiency in radio equipment is remedied. 187. Every notice given under subsection (2)
of section 184 or under subsection (3) of section 186 shall be
communicated by the radio surveyor to the Port Officer and, if the ship
to which it relates is not a British or North Borneo ship, to the
consular officer for the country to which the ship belongs at or
nearest to the port where the ship is for the time being; and port
clearance shall not be granted to the ship, and the ship shall be
detained, until a certificate under the hand of a radio surveyor is
produced to the effect that the deficiency has been remedied. Power of Governor to make radio rules. 188. (1) The
Governor in Council may make rules (in this Ordinance referred to as
“the radio rules”) in respect of ships to which the provisions of this
Chapter apply – (a) prescribing
the nature of the radio installation to be provided; (b) prescribing
the number, grade and qualifications of operators to be carried; and (c) making
provision as to the certificates to be held by operators. (2)
The radio rules shall require that the radio installation
to be provided on all ships and ships of sixteen hundred tons gross
tonnage or upwards proceeding on an international voyage shall include
an efficient radio direction finding apparatus capable – (a) of receiving
clearly perceptible signals and of taking bearings from which the true
bearings and direction may be determined; and (b) of receiving
signals on the frequencies prescribed for distress, direction finding,
and radio beacons by any international radio-telegraph convention for
the time being in force, and
that efficient communication shall be provided between such apparatus
and the bridge of the ship. Obligations in respect of radio to be in addition to those
imposed by the Telecommunications Ordinance. 189. The obligations imposed by the
provisions of this Chapter shall be in addition to, and not in
substitution for the obligations as to telecommunication and radio
communications imposed by the Telecommunications Ordinance Cap.
139.]. Chapter
29 EXPLOSIVES
AND DANGEROUS GOODS Port Officer to be furnished with particulars of explosives
due to arrive in North Borneo. 190. (1) The
master, agent and charterer of every vessel due to arrive at a port in
North Borneo, having on board thereof as cargo any quantity of
explosive, shall, not less than forty-eight hours before the arrival of
such vessel in North Borneo, furnish the Port Officer with a copy of
the manifest of the same, the marks of all packages and the names of
the consignees thereof if he knows the same. (2)
The master of every such vessel – (a) shall,
on arrival, take the same to the place specified to him by the Port
Officer, and that vessel shall not be removed therefrom
without the written permission of the Port Officer; (b) shall hoist by day a red flag and show
at night a red light where best it may be seen and shall keep such red
flag flying by day and such red light showing by night so long as any
explosive is on board; and (c) shall
not anchor such vessel within five hundred yards of any other vessels,
except with the permission of the Port Officer. Notice to Port
Officer and procedure when explosives due to be shipped from North
Borneo. 191. (1) The
master of every vessel about to take on board as cargo any quantity of
explosive shall give notice to the Port Officer, and shall take the
vessel into such place as the Port Officer may deem expedient, and
shall not remove the vessel therefrom
except for the purpose of proceeding on his voyage or for some other
sufficient cause to be approved by the Port Officer. (2)
No explosive shall be shipped, landed or transhipped
within North Borneo except with the permission of a Port Officer. Explosives Rules. 192. The Governor in Council may make rules
for carrying out the provisions of sections 190 and 191, and for the
control, movement, carriage, landing, shipment and transhipment of
explosives and the precautions to be taken in connection therewith. Penalty. 193. Any person who contravenes any provision
of section 190 or 191 shall be guilty of an offence and shall be liable
to imprisonment for three years and a fine. Restrictions on carriage of dangerous goods. 194. (1) Any
person who sends or attempts to send by, or (not being the owner or
master of the vessel) carries or attempts to carry in any vessel any
dangerous goods without distinctly marking their nature, by means of a
label which will indicate the danger to which they give rise, on the
outside of the container or package containing the same and giving
written notice of the nature of such goods and of the name and address
of the sender or carrier thereof to the owner or master of the vessel
at or before the time of sending the same to be shipped or taking the
same on board the vessel, shall be guilty of an offence and shall be
liable to a fine of five thousand dollars: Provided that, if such
person shows that he was merely an agent in the shipment of any such
goods and was not aware, and did not suspect and had no reason to
suspect, that the goods shipped by him were dangerous goods, he shall
be liable to a fine of five hundred dollars. (2)
Any person who knowingly sends or attempts to send by or
carries or attempts to carry in any vessel any such dangerous goods
under a false description, or falsely describes the sender or carrier
thereof, shall be guilty of an offence and shall be liable to a fine of
five thousand dollars. (3)
The owner or master of any vessel may refuse to take on
board any package or container which he suspects to contain such
dangerous goods and may require it to be opened to ascertain the fact. (4)
The Port Officer may refuse port clearance to any vessel
if there are on board any such dangerous goods which are not stowed to
his satisfaction. (5)
Where any such dangerous goods have been sent or carried,
or attempted to be sent or carried, on board any vessel without being
marked as aforesaid, or without such notice having been given as
aforesaid, and where any such goods have been sent or carried, or
attempted to be sent or carried, under a false description, or the
sender or carrier thereof has been falsely described, a Magistrate of
the First Class may declare such goods and any package or receptacle in
which they are contained to be forfeited, and they shall thereupon be
disposed of as the Magistrate may direct. (6)
The Magistrate shall have, and may exercise, the aforesaid
powers of forfeiture and disposal notwithstanding that the owner of the
goods may not have committed any offence under the provisions of this
section relating to dangerous goods, and may not be before the
Magistrate, and may not have notice of the proceedings, and
notwithstanding that there may be no evidence of the ownership of the
goods, but the Magistrate may, in his discretion, require notice of
such proceedings to be given to the owner or shipper of the goods
before the same are forfeited. (7)
The Governor in Council may make rules for regulating, in
the interests of safety, the carriage of dangerous goods in any North
Borneo ship or in any other vessel while such vessel is in any port in
North Borneo or is, within North Borneo embarking or disembarking
passengers or loading or discharging cargo or fuel; and any person who
contravenes any rules made under this subsection shall be guilty of an
offence and shall be liable to a fine of five thousand dollars, and the
ship shall, for the purposes of Chapter 31, be deemed to be unsafe by
way of improper loading. (8)
The provisions of this section shall be deemed to be in
addition to, and not in substitution for or in restraint of, any other
written law relating to dangerous goods, but so that nothing in those
provisions shall be deemed to authorize that any person is sued or
prosecuted twice in the same matter. Saving. 195. Nothing in sections 190 to 194 inclusive
shall apply to any ship of war or to any auxiliary armed vessel
belonging to Her Majesty or to the Government of any part of the
Commonwealth or any foreign country. Chapter
30 CARRIAGE
OF GRAIN Carriage of grain. 196. (1) Where grain is loaded on board any
North Borneo ship or is loaded within any port in North Borneo on board
any ship, all necessary and reasonable precautions shall be taken to
prevent the grain from shifting; and, if such precaution as aforesaid
are not taken, the owner or the master of the ship, or any agent of the
owner who was charged with the loading or with sending the ship to sea
leaden with the grain, shall be guilty of an offence under this
subsection, and the ship shall be deemed for the purposes of Chapter 31
to be unsafe by reason of improper loading. (2)
Where any ship, having been loaded with grain outside
North Borneo without the taking of all necessary and reasonable
precautions to prevent the grain from shifting, enters any port in
North Borneo so laden, the owner or master of the ship shall be guilty
of an offence under this subsection, and the ship shall be deemed for
the purposes of Chapter 31 to be unsafe by reason of improper loading: Provided that this
subsection shall not have effect if the ship would not have entered any
such port but for stress of weather or any other circumstance that
neither the master nor the owner nor the charterer, if any, could have
prevented or forestalled. (3)
Without prejudice to the generality of subsections (1) and
(2), any particular precaution which may be prescribed, in relation to
the loading of ships generally or of ships of any class, as being a
precaution to be treated for the purposes of those subsections as a
necessary or reasonable precaution to prevent grain from shifting,
shall be so treated in the case of ships generally, or of ships of that
class, as the case may be: Provided
that this subsection shall not apply where a ship is loaded in
accordance in all respects with any provisions approved by the Director
as respects the loading in question. (4)
The penalty for any person committing an offence under
subsection (1) or subsection (2), shall be
one thousand dollars. (5)
On the arrival at a port in North Borneo from a port not
in North Borneo of any ship carrying a cargo of grain, the master shall
cause to be delivered to the Port Officer together with any report
required by any other written law, a notice stating – (a) the draught
of water and freeboard of that ship after the loading of her cargo was
completed at the final port of loading; and (b) the following
particulars of the grain carried, namely – (i) the
kind of grain and the quantity thereof, stated in cubic feet, quarters,
bushels, or tons weight; (ii) the
mode in which the grain is stowed; (iii) the
precautions taken to prevent the grain from shifting; and,
if the master fails to deliver any notice required by this subsection,
or, if, in any such notice, he makes any statement that he knows to be
false in a material particular, or recklessly makes any statement that
is false in material particular, he shall be guilty of an offence and
shall be liable to a fine of one thousand dollars. (6)
Any person having a general or special authority in that
behalf from the Director may, for securing the observance of the
provisions of this section, inspect any grain, and the mode in which it
is stowed, and for that purpose shall have all the powers of an
inspector under this Ordinance. (7)
In this section the expression “grain” includes wheat,
maize, oats, rye, barley, rice, pulses and seeds, and the expression
“ship carrying a cargo of grain” means a ship carrying a quantity of
grain exceeding one-third of the ship’s registered tonnage, reckoning
one hundred cubic feet, or two tons weight, of grain as equivalent to
one ton of registered tonnage. Chapter
31 UNSEAWORTHY
SHIPS Sending unseaworthy British or North Borneo ship to sea. 197. (1) Any
person who sends, or attempts to send, or is a party to sending or
attempting to send, a British or North Borneo ship to sea from any
North Borneo port in such an unseaworthy state that the life of any
person is likely to be thereby endangered shall, unless he proves
either that he used all reasonable means to ensure the ship being sent
to sea in a seaworthy state, or that the going to sea in such an
unseaworthy state was, in the circumstances reasonable and justifiable,
be guilty of an offence and shall be liable to imprisonment for two
years and a fine of five thousand dollars. (2)
The master of a British or North Borneo ship who knowingly
takes the same to sea from any North Borneo port in such an unseaworthy
state that the life of any person is likely to be thereby endangered
shall, unless he proves that the going to sea in such an unseaworthy
state was, in the circumstances, reasonable and justifiable, be guilty
of an offence and shall be liable to imprisonment for two years and a
fine of five thousand dollars. Power to detain unseaworthy ship and procedure for detention. 198. (1) Where
a British or North Borneo ship being in any North Borneo port is an
unsafe ship, that is to say, is by reason of the defective condition of
the hull, equipments or machinery, or by reason of undermanning
or of overloading or improper loading, unfit to proceed to sea without
serious danger to human life, having regard to the nature of the
service for which the ship is intended, any such ship (hereinafter
described as “unsafe”) may be provisionally detained, and afterwards
either finally detained or released as provided in this section. (2)
The Director or any government surveyor, if he has reason
to believe, on complaint or otherwise, that a British or North Borneo
ship is unsafe, may order the provisional detention of such ship for a
period not exceeding twenty-four hours, and subject to the further
provisions of this section, the Governor may by order extend such
period either indefinitely or for such definite period as he may deem
fit. (3)
When a ship has been provisionally detained, there shall
be forthwith served on the master of the ship a written statement of
the grounds of detention, and the Governor may, if he thinks fit,
appoint some competent person to survey the ship and report to him. (4)
The Governor, on receiving the report, may either order
the ship to be released or, if in his opinion the ship is unsafe, may
order the ship to be finally detained, either absolutely or until the
performance of such conditions with respect to the execution of repairs
or alterations, or the unloading or reloading of cargo, or the manning
of the ship, as the Governor thinks necessary for the protection of
human life, and he may vary or add to any such order. (5)
Before the order for final detention is made, a copy of
the report shall be served on the master of the ship, and, within seven
days of such service, the master, owner or agent of the ship may appeal
in the prescribed manner to a Court of Survey. (6)
(a) Where
a ship has been provisionally detained, the master, owner or agent of
the ship may, at any time before the person appointed under subsection
(3) to survey the ship makes such survey, require that he shall be
accompanied by such person of nautical, engineering or other special
skill and experience to be approved by the Governor as the owner, agent
or master may select. (b) In any such case, if
the surveyor and assessor agree, the Governor shall cause the ship to
be detained or released accordingly; but, if they differ, the Governor
may act as if the requisition had not been made, and the master, owner
or agent shall have the like appeal touching the report of the surveyor
as is before provided by this section. (7)
Where a ship is provisionally detained, the Governor may
at any time, if he thinks it expedient, refer the matter to the Court
of Survey. (8)
The Governor may at any time, if satisfied that a ship
detained under this Chapter is not unsafe, order such ship to be
released, either upon or without any condition. Liability of Government and ship owner for costs and damages. 199. (1) If
it appears that there was not reasonable and probable cause by reason
of the condition of the ship or the act or default of the owner or
agent for the provisional detention of the ship under section 198, the
Government shall be liable to pay to the owner of the ship his costs
of, and incidental to, the detention and survey of the ship, and
compensation for any loss or damage sustained by him by reason of the
detention or survey. (2)
If a ship is finally detained under this Ordinance, or if
it appears that a ship provisionally detained was at the time of such
detention unsafe, the owner of the ship shall be liable to pay to the
Government the costs of, and incidental to the detention and survey of
the ship; and such costs shall, without prejudice to any other remedy,
be recoverable before a Magistrate of the First Class. (3)
(a) For
the purposes of this Ordinance, the costs of, and incidental to, any
proceedings before the Court of Survey and a reasonable amount in
respect of remuneration of the surveyor appointed under subsection (3)
of section 198 shall be part of the costs of the detention and survey
of the ship. (b) Any dispute as to the
amount of costs under this section may be referred to a Registrar of
the High Court who, on request made to him for that purpose by the
Governor, shall ascertain and certify the proper amount of such costs. (4)
A claim for any costs or compensation payable by the
Government under this section may be brought against the
Attorney-General under the provisions of the Government Proceedings
Ordinance. Power to require security for costs from complainant. 200. Where a complaint is made to the
Governor that a British or North Borneo ship is unsafe, he may require
the complainant to give security to his satisfaction for the costs and
compensation which may be incurred by the Government; and any action
that may be necessary to enforce such security may be brought in the
name of the Attorney-General: Provided that, where the
complaint is made by one-fourth, being not less than three, of the
seamen belonging to the ship and is not in the opinion of the Governor
frivolous or vexatious, such security shall not be required, and the
Governor shall, if the complaint is made in sufficient time before the
sailing of the ship, take proper steps for ascertaining whether the
ship ought to be detained. Supplementary provisions as to detention of ships. 201. (1) An
order for the detention of a ship, whether provisional or final, and an
order varying the same, shall be served as soon as may be on the master
of the ship. (2)
A ship which has been detained under this Ordinance shall
not be released by reason of the British register of such ship being
subsequently closed or by reason of the North Borneo licence therefor being subsequently cancelled. (3)
For the purposes of a survey under this Chapter 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. Application to foreign ships of provisions as to detention. 202. (1) When
a foreign ship whilst in North Borneo is unsafe by reason of the
defective condition of the hull, equipments or machinery, or by reason
of undermanning or of overloading or
improper loading, the provisions of this Chapter with respect to the
retention of ships shall, with the modifications contained in this
section, apply to that foreign ship as if such ship were a North Borneo
ship. (2)
A copy of the order for the provisional detention of such
ship shall be forthwith served on the consular officer for the state to
which the ship belongs or, if there is no such consular officer, on the
master of the ship. (3)
(a) Where
a ship has been provisionally detained, the consular officer, on the
request of the master, owner or agent of the ship, and if there is no
such consular officer, the master, the owner or agent of the ship, may
require that the person, if any, appointed by the Governor to survey
the ship shall be accompanied by such person as such consular officer,
master, owner or agent, as the case may be, may select. (b) In any such case, if
the surveyor and such person agree, the Governor shall cause the ship
to be detained or released accordingly; but, if they differ, the
Governor may act as if the requisition had not been made, and the
master, owner or agent shall have the like appeal to a Court of Survey
touching the report of the surveyor as hereinbefore provided. (4)
Where the master, owner or agent of the ship appeals to
the Court of Survey, the consular officer, on the request of such
master, owner or agent, or, if there is no such consular officer the
master, owner or agent, may nominate any competent person or persons,
not exceeding two, to be members of the Court of Survey. Safety Convention passenger ship not to be detained if
condition of ship corresponds substantially with certificate. 203. Notwithstanding anything in section 198
or 202, where a valid Safety Convention certificate is produced in
respect of any Safety Convention passenger ship, such ship shall not be
deemed to be unsafe for the purposes of either of those sections by
reason of the defective condition of her hull, equipments or machinery,
unless it appears that such ship cannot proceed to sea, without danger
to the passengers or crew owing to the fact that the actual condition
of the ship does not correspond substantially with the particulars
stated in the certificate. Survey of ships alleged by seamen to be unseaworthy. 204. (1) Whenever
in any proceeding, whether under this Ordinance or under the Merchant
Shipping Acts, against any seaman or apprentice belonging to any ship
for the offence of desertion or absence without leave, or for otherwise
being absent from his ship without leave, it is alleged by one-fourth,
or if their number exceeds twenty by not less than five, of the seamen
belonging to the ship that the ship is by reason of unseaworthiness, overloading, improper loading,
defective equipment or any other reason, not in a fit condition to
proceed to sea, or that the accommodation in the ship is insufficient,
the Court having cognizance of the case shall take such means as may be
in its power to satisfy itself concerning the truth or untruth of the
allegation, and shall, for that purpose, receive the evidence of the
person making the same, and may summon any other witness whose evidence
it may think it desirable to hear, and shall, if satisfied that the
allegation is groundless, adjudicate in the case, but if not so
satisfied, shall before adjudication cause the ship to be surveyed. (2)
A seaman or apprentice charged with desertion, or with
quitting his ship without leave, shall not have any right to apply for
a survey under this section unless he has, before quitting his ship,
complained to the master of the circumstances so alleged in
justification. (3)
For the purposes of this section the Court may require any
government surveyor, or if a government surveyor cannot be obtained
without unreasonable expense or delay, or is not, in the opinion of the
Court, competent to deal with the special circumstances of the case,
then, any other impartial surveyor appointed by the Court, and having
no interest in the ship, her freight or cargo, to survey the ship, and
to answer any question concerning her which the Court thinks fit to put. (4)
Such surveyor shall survey the ship, and make his written
report to the Court, including an answer to every question put to him
by the Court; and the Court shall cause the report to be communicated
to the parties, and, unless the opinions expressed in the report are
proved to the satisfaction of the Court to be erroneous, shall
determine the questions before it in accordance with those opinions. (5)
Any person making a survey under this section shall for
the purposes thereof have all the powers of an inspector under this
Ordinance. (6)
The costs, if any, of the survey shall be determined by
the Port Officer, according to a scale of fees to be prescribed and
shall be paid, in the first instance from the general revenue. (7)
If it is proved that the ship is in a fit condition to
proceed to sea, or that the accommodation is sufficient, as the case
may be, the costs of the survey shall be paid by the person upon whose
demand, or in consequence of whose allegation, the survey was made, and
may be deducted by the master or owner out of the wages due, or to
become due to that person, and shall be paid into the general revenue. (8)
If it is proved that the ship is not in a fit condition to
proceed to sea, or that the accommodation is insufficient, as the case
may be, the master or owner of the ship shall pay the costs of the
survey into the general revenue, and shall be liable to pay to the
seaman or apprentice who has been detained in consequence of the
proceeding before the Court under this section, such compensation for
his detention as the Court may award. Saving. 205. Nothing in this Part shall affect any
foreign ship not bound to North Borneo which comes into North Borneo
for any purpose other than that of embarking or landing passengers, or
taking in or discharging cargo, or taking in bunkers. PART
VI Chapter
32 INVESTIGATION
AND ENQUIRES AS TO SHIPPING CASUALTIES Preliminary inquiry. 206. (1) Where a shipping casualty within the meaning of
section 208 has occurred, a preliminary inquiry may be held respecting
the casualty by any person appointed for the purpose by the Director. (2)
For the purpose of any such inquiry, the person holding
the same shall have all the powers of an inspector under this ordinance. (3)
After the conclusion of such inquiry, the person holding
the same shall forward a report thereof to the Governor through the
Director without delay and, in any event, within one month after such
conclusion. Marine Court. 207. (1) The
Governor may, whenever occasion may arise in the circumstances detailed
in subsection (1) of section 208 (whether or not a preliminary inquiry
under section 206 has been held) by warrant under his hand and seal
constitute a Court (which shall be called “the Marine Court”) to make
investigations as to casualties affecting ships, or to inquire into
charges of incompetency or misconduct on the part of officers of ships. (2)
The Marine Court shall consist of not more than five nor
less than three members of whom one shall be a Judge or a President of
the Sessions Court who shall be President of the Court and the
remainder shall be masters of foreign-going British ships or such
persons of nautical engineering or other special skill or knowledge as
the Governor may appoint: Provided that, where any
investigation involves or appears likely to involve any question as to
the cancellation or suspension of the certificate of any officer, the
Court shall include not less than two members having experience in the
Merchant Service. (3)
Each of the member of the
Marine Court other than the Judge or Magistrate shall be paid such sum
as may be prescribed, or such other sum as the Governor may in any
special case direct during each day that the Court sits. Shipping casualties. 208. (1) For
the purpose of an investigation under this Part, a casualty shall be
deemed to occur – (a) when on or
near the coasts of North Borneo any British or North Borneo ship is
lost, abandoned or materially damaged; (b) when, on or
near the coasts of North Borneo any British or North Borneo ship causes
loss or material damage to any other ship; (c) when any loss of life ensures by reason
of any casualty happening to or on board any British or North Borneo
ship on or near the coasts of North Borneo; (d) when, in any
place, any such loss, abandonment, material damage or casualty as above
mentioned has occurred, and any witness is found in North Borneo; (e) when, in any place, any British or North
Borneo ship has been stranded or damaged, and any witness is found in
North Borneo; and (f) when
any British or North Borneo ship has been lost, or is supposed to have
been lost, and any evidence is obtainable in North Borneo as to the
circumstances in which such ship proceeded to sea or was last heard of. (2)
In any of the following cases – (a) where a
casualty occurs to a British or North Borneo ship on or near the coasts
of North Borneo or to any such ship in the course of a voyage to North
Borneo; (b) where a
casualty occurs in any part of the world to a North Borneo ship; (c) where some of the crew of a British or
North Borneo ship to which a casualty has occurred, and who are
competent witnesses to the facts, are found in North Borneo; (d) where the
incompetency or misconduct has occurred on board a British ship on or
near the coasts of North Borneo, or on board any such ship in the
course of a voyage to North Borneo; (e) where the
incompetency or misconduct has occurred on board a North Borneo ship; (f) where
any officer of a British or North Borneo ship who is charged with
incompetency or misconduct on board that ship is found in North Borneo; the
Marine Court may make investigation respecting such casualty and may
hear and inquire into any such charge of incompetency or misconduct;
and, for such purpose, that Court shall have the same jurisdiction over
the matter in question as if it had occurred within its ordinary
jurisdiction but subject to all provisions, restrictions and conditions
which would have been applicable if it had so occurred, and the Marine
Court shall also have the powers given to inspectors under this
Ordinance as well as all the powers of a Magistrate of the First Class. (3)
An inquiry shall not be held into any matter which has
once been the subject of an investigation or inquiry, other than a
preliminary inquiry under section 206, and has been reported on by a
competent Court or tribunal in any part of the Commonwealth, or in
respect of which the certificate of any officer of a ship has been
cancelled or suspended by a Naval Court. (4)
Where an investigation or inquiry has been commenced in
the United Kingdom with reference to any matter, an inquiry with
reference to the same matter shall not be held under this Chapter. Grounds for cancellation or suspension of certificate. 209. (1) The
certificate of any officer of a British or North Borneo ship may be
cancelled or suspended – (a) if the Marine
Court finds that the loss or abandonment of, or serious damage to, any
ship or loss of life has been caused by his wrongful act or default; or (b) if the Marine
Court finds he is incompetent, or that he has been guilty of any gross
act of misconduct, drunkenness or tyranny, or that in a case of
collision, he has failed to render such assistance or give such
information as is required by this Ordinance. (2)
Where any case before the marine Court involves a question
as to the cancellation or suspension of a certificate, the Court shall,
at the conclusion of the case or as soon afterwards as possible, state
in open Court the decision to which it has come with respect to the
cancellation or suspension thereof. (3)
Any officer of a British or North Borneo ship whose
certificate is cancelled or suspended in pursuance of this Ordinance
shall, on the demand of the Marine Court, deliver his certificate to
the Court, or if it is not demanded by that Court deliver it to the
Governor or to such other persons as the Governor directs, and in
default such officer shall be guilty of an offence and shall be liable
to a fine of five hundred dollars. (4)
The Marine Court shall, in all cases, send a full report
on the case with the evidence to the Governor and shall also, if it
determines to cancel or suspend any certificate, send the certificate
cancelled or suspended to the authority by whom
the certificate was granted. (5)
A certificate shall not be cancelled or suspended by a
Marine Court under this Chapter unless a copy of the report or a
statement of the case on which the investigation or inquiry has been
ordered has been furnished before the commencement of the investigation
or inquiry to the holder of the certificate. Provisions for re-hearing and appeal. 210. (1) The
Governor may, in any case where under this Ordinance an investigation
into the conduct of a holder of a certificate of competency granted
under this Chapter has been held, order the case to be re-heard, either
generally or as to any part thereof, either by the Marine Court by
which it was heard in the first instance or by another Marine Court and
shall do so – (a) if new and
important evidence which could not be produced at the investigation or
inquiry has been discovered; or (b) if for any
other reason there has, in his opinion, been ground for suspecting that
a miscarriage of justice has occurred. (2)
Where an application under subsection (1) for a re-hearing
is not made or is refused, and where an application under subsection
(6) of section 478 of the Principal Act for a re-hearing of any inquiry
under this Chapter is not made or is refused, an appeal shall lie from
any order or finding of the Court or tribunal holding the inquiry to
the Court of Appeal: Provided that an appeal
under this section shall not lie in any case, other than an
investigation under paragraph (e) of subsection (2) of
section 208 in which an appeal to the High Court of England under
section 478 of the Principal Act or under section 66 of the Merchant
Shipping Act, 1906, is competent. (3)
Any re-hearing or appeal under this section shall be
subject to, and in accordance with, such terms and conditions as may be
prescribed. (4)
Notwithstanding anything in this Chapter contained, the
Governor may in his discretion, at any time direct the re-issue and
return of any certificate issued under this Ordinance, or may direct
the grant in place thereof of a certificate of the same or a lower
grade. Further powers of Marine Court. 211. (1) The
Marine Court shall have the following further powers – (a) it may remove the master of any ship if
that removal is shown to the satisfaction of the Court by evidence on
oath to be necessary; and such removal may be made upon the application
of any owner of the ship or his agent, or of the charterer, or of any
certificated mate, or of one-third or more of the crew of the ship; (b) it may
appoint a new master instead of the one removed: Provided
that, where the owner, agent or charterer of the ship is within the
jurisdiction of the Marine Court, such an appointment shall not be made
without the consent of that owner, agent or charterer; (c) it may make
such order as it thinks fit respecting the costs of the investigation,
or any part thereof; and such order shall be enforced by the Marine
Court in the same way as an order for costs made by a Magistrate Court. (2)
Each member of the Marine Court shall either sign the
report made on any investigation under this Chapter, or report to the
Governor his reasons for dissent therefrom, (3)
Every investigation under this Chapter (other than an
inquiry under section 206) shall be conducted in such manner that, if
charge is made against any person, he shall have an opportunity of
making a defence. Chapter
33 COURTS
OF SURVEY Courts of Survey. 212. (1) The
Governor whenever occasion may arise may appoint a Court of Survey in
the same manner and composed of the same persons as in the case of a
Marine Court; and, in such case, the following provisions shall have
effect – (a) the
case shall be heard in open court; (b) each member
of the Court may survey the ship, and shall have for such purpose all
the powers of an inspector under this Ordinance; (c) the Court may order the ship to be
surveyed and may appoint any competent person to survey the ship and
report thereon to the Court and such person may in case of disagreement
be appointed by a majority of the members; (d) the Court shall have the same power as
the Governor has to order the ship to be released or finally detained,
but unless a majority of the members concur in an order for the
detention of a ship the ship shall be released; and (e) the owner or
agent and the master of the ship and any person appointed by the owner,
agent or master, may attend at any inspection or survey made in
pursuance of this section. (2)
The Court may make such order with respect to the costs of
any enquiry or investigation under this Chapter as it may think fit, and such costs shall be recoverable in the
same manner as a civil debt. (3)
Nothing in this Part shall be deemed to affect in any way
the admiralty jurisdiction of the High Court. Chapter
34 SCIENTIFIC
REFEREES Reference in difficult cases to scientific persons. 213. (1) If
the Governor is of the opinion that an appeal to the Court of Survey
involves a question of construction or design or of scientific
difficulty or important principle, he may refer the matter to such one
or more scientific referees as may appear to him to possess the special
qualifications necessary for the particular case; and such referees may
be selected by agreement between the Governor and the appellant, or, in
default of any such agreement, by the Governor, and thereupon the
appeal shall be determined by the referees, instead of the Court of
Survey. (2)
The Governor, if the appellant in any appeal so requires,
and gives security to the satisfaction of the Governor to pay the costs
of, and incidental to, the reference, shall refer that appeal to a
referee or referees so selected as aforesaid. (3)
The referee or referees shall have the same power as a
member of a Marine Court. PART
VII WRECK
AND SALVAGE Chapter
35 VESSELS
IN DISTRESS Definitions. 214. In this Part – “owner”, in relation to a vessel, means the
persons who was the owner of the vessel at the time of the sinking,
stranding or abandoning thereof; “salvage” includes all expenses properly incurred
by the salvor in the performance of the
salvage services; “vehicle” includes any vehicle of any description,
whether propelled by mechanical power or otherwise and whether used for
drawing other vehicles or otherwise; “wreck” includes jetsam, flotsam, lagan and
derelict found in or on the shores of the sea or any tidal water. Duty of Receiver where vessel in distress. 215. (1) Where
a British, North Borneo or foreign vessel is wrecked, stranded, or in
distress at any place on or near the coasts of North Borneo or any
tidal water within North Borneo, the Receiver of Wreck shall, upon
being made acquainted with the circumstances, forthwith proceed
thereto, and, upon his arrival, shall take the command of all persons
present, and shall assign such duties and give such directions to each
person as he thinks fit for the preservation of the vessel, and of the
lives of the persons belonging to the vessel (in this Part referred to
as “shipwrecked persons”), and of the cargo and apparel of the vessel: Provided
that the Receiver of Wreck shall not interfere between the master and
the crew of the vessel in reference to the management thereof, unless
he is requested to do so by the master. (2)
If any person wilfully disobeys any lawful directions of
the Receiver of Wreck such person shall be guilty of an offence and
shall be liable to a fine of one thousand dollars. Powers of the Receiver in case of vessels in distress. 216. (1) The
Receiver of Wreck may, with a view to such preservation as aforesaid of
shipwrecked persons, or of the vessel, cargo, or apparel – (a) require such
persons as he thinks necessary to assist him; (b) require the master, or other person
having charge, of any vessel near at hand to give such aid with his men
or vessel as may be in his power; and (c) demand the
use of any vehicle or of any draught animal that may be near at hand. (2)
If any person refuses without reasonable cause to comply
with any such requisition or demand, that person shall be guilty of an
offence and shall be liable to a fine of two thousand dollars. Power to pass over adjoining lands. 217. (1) Whenever
a vessel is wrecked, stranded or in distress as aforesaid, all persons
may, for the purpose of rendering assistance to the vessel, or of
saving the lives of the shipwrecked persons, or of saving the cargo or
apparel of the vessel, unless there is some public road equally
convenient, pass and repass, either with
or without vehicles or draught animals, over any adjoining lands
without being subject to interruption by the owner or occupier, so,
however, that they do as little damage as possible, and may, also, on
the like condition, deposit on those lands any cargo or other article
recovered from the vessel. (2)
Any damage sustained by an owner or occupier of adjoining
lands in consequence of the exercise of the rights given by this
section shall be a charge on the vessel, cargo, or articles in respect
of or by which the damage is occasioned, and the amount payable in
respect of the damage shall in case of dispute, be determined and
shall, in default of payment, be recoverable in the same manner as the
amount of salvage is under this Part determined or recoverable. (3)
If the owner or occupier of any land – (a) impedes or
hinders any person in the exercise of the rights given by this section
by locking his gates or refusing, upon request, to open the same, or
otherwise; (b) impedes or
hinders the deposit of any cargo or other article recovered from the
vessel as aforesaid on the land; or (c) prevents
or endeavours to prevent any cargo or other article from remaining
deposited on the land for a reasonable time, until it can be removed to
a safe place of public deposit; he
shall be guilty of an offence and shall be liable to a fine of two
thousand dollars. Power of Receiver to suppress plunder and disorder by force. 218. (1) Whenever a vessel is wrecked, stranded or in
distress as aforesaid, and any person plunders, creates disorder or
obstructs the preservation of the vessel, or of the shipwrecked person,
or of the cargo or apparel of the vessel, the Receiver of Wreck may
cause that person to be apprehended. (2)
The Receiver of Wreck may use force for the suppression of
any such plundering, disorder or obstruction, and may command all Her
Majesty’s subjects to assist him in so using force. (3)
If any person is killed, maimed or hurt by reason of his
resisting the Receiver of Wreck or any person acting under the orders
of the Receiver of Wreck in the execution of the duties by this Part
committed to the Receiver of Wreck, neither the Receiver of Wreck nor
the person acting under his orders shall be liable to any punishment,
or to pay any damages, by reason of the person being so killed, maimed
or hurt. Exercise of
powers of Receiver in his absence. 219. (1) Where
the Receiver of Wreck is not present, the following officers in
succession (each in the absence of the other, in the order in which
they are named), namely, the Commissioner of Police, the Deputy
Commissioner of Police any gazetted police officer, any magistrate, any
commissioned officer on full pay in the naval service of Her Majesty or
commissioned officer on full pay in the military or air force service
of Her Majesty, may do everything by this Part authorized to be done by
the Receiver of Wreck. (2)
An officer acting under this section for the Receiver of
Wreck shall, with respect to any goods or articles belonging to a
vessel the delivery of which to the Receiver of Wreck is required by
the Ordinance, be considered as the agent of the Receiver of Wreck, and
shall place such goods or articles in the custody of the Receiver or
Wreck; but he shall not be entitled to any fees payable to the Receiver
of Wreck, or be deprived, by reason of his so acting, of any right to
salvage to which he would otherwise be entitled. Examination in respect of ships in distress. 220. (1) Where
any ship, British, North Borneo or foreign, is or has been in distress
on the coasts of North Borneo, the Receiver of Wreck, or in the absence
of the Receiver of Wreck a Magistrate, shall, as soon as conveniently
may be, examine on oath (and they are hereby respectively empowered to
administer the oath) any person belonging to the ship, or any other
person who may be able to give any account thereof or of the cargo or
stores thereof, as to the following matters, that is to say – (a) the name and
description of the ship; (b) the name of
the master and of the owner; (c) the names of
the owners of the cargo; (d) the
ports from and to which the ship was bound; (e) the occasion
of the distress of the ship; (f) the
services rendered; (g) such
other matters or circumstances relating to the ship, or the cargo on
board the same, as the person holding the examination thinks necessary. (2)
The person holding the examination shall take the same
down in writing and shall send two copies thereof to the Director; and
the Director shall cause one of those copies to be placed in some
conspicuous place for the inspection of persons desirous of examining
the same, and, shall otherwise give such publicity thereto as he
considers necessary, and shall transmit the other copy to the secretary
of Lloyd’s in London. (3)
The person holding the examination shall, for the purposes
thereof have all the powers of an inspector under this Ordinance. Chapter
36 DEALING
WITH WRECK Rules to be observed by person finding wreck. 221. Where any person finds or takes
possession of any wreck within North Borneo, or finds or takes
possession of any wreck outside those limits and brings it within those
limits, he shall – (a) if he is the owner of the wreck, give
notice to the Receiver of Wreck, stating that he has found or taken
possession of the same, and describing the marks by which the same may
be recognised; or (b) if he is not
the owner of the wreck, as soon as possible deliver it to the Receiver
of Wreck; and,
if any person fails, without reasonable cause, to comply with this
section, he shall be guilty of an offence and shall be liable to a fine
of two thousand dollars; and shall in addition, if he is not the owner,
forfeit any claim to salvage, and shall be liable to pay to the owner
of the wreck if it is claimed, or if it is unclaimed to the Governor,
double the value thereof: Provided that this section
shall have no application to the salvage, under the authority of the
Chief Secretary, of any war time wreck lying in North Borneo at the
commencement of this Ordinance. Penalty for taking wreck at time of casualty. 222. (1) Where
a vessel is wrecked, stranded, or in distress at any place on or near
the coasts of North Borneo or any tidal water within North Borneo, any
cargo or other articles belonging to, or separated from, the vessel
which may be washed on shore, or otherwise lost or taken from the
vessel, shall be delivered to the Receiver of Wreck. (2)
If any person, whether the owner or not, secretes or keeps
possession of any such cargo or article, or refuses to deliver the same
to the Receiver of Wreck, or to any person authorized by the Receiver
of Wreck to demand the same, that person shall be guilty of an offence
and shall be liable to a fine of two thousand dollars. (3)
The Receiver of Wreck or any person authorized as
aforesaid may take any such cargo or article by force from the person
so refusing to deliver the same. Notice of wreck to be given by Receiver. 223. (1) Where the Receiver of Wreck takes possession of
any wreck, he shall within forty-eight hours – (a) cause to be posted at the nearest Police
Station and otherwise publish in such manner as he may deem fit, a
description of the wreck and of any marks by which it is distinguished;
and (b) if in his
opinion the value of the wreck exceeds two hundred dollars, send a copy
of such description to the Director. (2)
The Director shall transmit to the secretary of Lloyd’s in
London any copy of any description of any wreck sent to him by the
Receiver of Wreck under subsection (1). Claims of owners to wreck. 224. (1) The
owner of any wreck in the possession of the Receiver of Wreck upon
establishing his claim to the same to the satisfaction of the Receiver
of Wreck within one month from the time when the wreck came into the
possession of the Receiver of Wreck shall, upon paying the salvage,
fees and expenses due, be entitled to have the wreck or the proceeds
thereof delivered up to him. (2)
Where any articles belonging to, or forming part of, a
foreign ship which has been wrecked on or near the coasts of North
Borneo, or belonging to, and forming part of, the cargo of any such
ship, are found on or near those coasts or are brought into any port
within North Borneo, the consular officer of the country to which the
ship, or, in the case of cargo, to which the owner of the cargo may
have belonged shall, in the absence of the owner and of the master or
other agent of the owner, be deemed to be the agent of the owner so far
as relates to the custody and disposal of the articles. Immediate sale of wreck by Receiver in certain cases. 225. The Receiver of Wreck may at any time
sell any wreck in his custody, if in his opinion – (a) it is under
the value of fifty dollars; (b) it is so much
damaged or of so perishable a nature that it cannot with advantage be
kept; or (c) it
is not of sufficient value to pay for warehousing; and
the proceeds of the sale shall, after defraying the expenses thereof,
be held by the Receiver of Wreck for the same purposes, and subject to
the same claims, rights, and liabilities, as if the wreck had remained
unsold. Chapter
37 UNCLAIMED
WRECK Unclaimed wreck
to be sold and proceeds paid into general revenue. 226. Where no owner establishes a claim to
any wreck which – (a) has been found in North Borneo, or found
or taken possession of outside North Borneo and brought into North
Borneo; and (b) has been in
the possession of the Receiver of Wreck for one month; the
Receiver of Wreck shall sell such wreck and shall pay into the general
revenue the proceeds of the sale after deducting therefrom
the expenses of sale and any other expenses incurred by and the fees
payable to him, in respect thereof, and paying thereout
to the salvors such amount of salvage as
the Governor may, by special or general directions, specify. Delivery of unclaimed wreck by Receiver not to prejudice
title. 227. Upon delivery of wreck or payment of
the proceeds of sale of wreck by the Receiver of Wreck in pursuance of
the provisions of this Part, the Receiver of Wreck shall be discharged
from all liability in respect thereof, but the delivery thereof shall
not prejudice or affect any question which may be raised by third
parties concerning the right or title to the wreck. Chapter
38 REMOVAL
OF WRECKS Removal of wreck by Director. 228. (1) Subject
to the provisions of any written law relating to ports, where any
vessel is sunk, stranded, or abandoned in any port, navigable river or
tidal water within North Borneo or in or near any approach to any such
port, navigable river or tidal water, in such a manner as, in the
opinion of the Receiver of Wreck to be, or to be likely to become, an
obstruction or danger to navigation, the Receiver of Wreck – (a) may take
possession of, and raise, remove or destroy, the whole or any part of
the vessel; (b) may
light or buoy any such vessel, or part of any such vessel, until the
raising, removal or destruction thereof; and (c) subject
to the provisions of subsections (2) and (3), may sell, in such manner
as he thinks fit, any vessel or part so raised or removed, and also any
other property recovered in the exercise of his powers under this
section, and out of the proceeds of the sale reimburse himself for the
expenses incurred by him under this section in relation to such vessel,
or part of a vessel, or other property, and shall hold the surplus, if
any, of the said proceeds in deposit for payment to the person
thereafter establishing his right thereto: Provided that the
deposit shall be paid into general revenue unless such person makes his
claim within three years of the sale. (2)
A sale shall not, except in the case of property which is
of a perishable nature or which would deteriorate in value by delay, be
made under this section until at least seven clear days’ notice of the
intended sale has been given in the Gazette. (3)
At any time before any property is sold under this
section, the owner thereof shall be entitled to have the same delivered
to him on payment to the Receiver of Wreck of fair market value
thereof, to be ascertained by agreement between the Receiver of Wreck
and the owner, or failing such agreement by some person to be named for
the purpose by the Governor, and the sum paid to the Receiver of Wreck
as the value of any property under this subsection, shall, for the
purposes of this section, be deemed to be the proceeds of sale of that
property. (4)
If the proceeds of sale of any such property as is mentioned in this section is less than the
costs incurred by the Receiver of Wreck under this section, he may
recover such difference from the owner of the vessel by civil action. Breaking and removal of wrecks. 229. (1) If any person being the owner of any vessel or
any wrecked, submerged, sunken or stranded vessel, or the duly
authorized agent or servant of such owner, is desirous of breaking up
such vessel prior to removal thereof from North Borneo, such person
shall, before commencing salvage or breaking up operations, obtain the
written permission of the Receiver of Wreck who shall be entitled to
grant such permission and in his discretion to require security in such
reasonable amount as he may consider necessary to ensure the effective
removal of such vessel, or any portion thereof, from North Borneo. (2)
Any person who, without the previous written permission of
the Receiver of Wreck, does or causes to be done any salvage or
breaking up operations of any vessel or any wrecked, submerged, sunken
or stranded vessel lying within North Borneo shall be guilty of an
offence and shall be liable to imprisonment for six months and a fine
of one thousand dollars. Powers of removal to extend to tackle, cargo, etc. 230. The provisions of this Part relating
to removal of wrecks shall apply to every article or thing or
collection of things being or forming part of the tackle, equipments,
cargo, stores or ballast of a vessel in the same manner as if it were
included in the word “vessel”; and, for the purposes of these
provisions, any proceeds of sale arising from a vessel and from the
cargo thereof, or any other property recovered therefrom,
shall be regarded as a common fund. Interfering with wrecked vessel. 231. A person shall not, without the leave of
the master, board or endeavour to board any vessel which is wrecked,
stranded or in distress unless that person is, or acts by command of
the Receiver of Wreck or a person lawfully acting as such; and, if any
person acts in contravention of this section, he shall be guilty of an
offence and shall be liable to a fine of one thousand dollars, and the
master of the vessel may repel him by force. Summary procedure for concealment of wreck. 232. (1) Where
the Receiver of Wreck suspects or receives information that any wreck
is secreted or in the possession of some person who is not the owner
thereof, or that any wreck is otherwise improperly dealt with, he may
apply to any Magistrate for a search warrant; and that Magistrate shall
power to grant such a warrant; and the Receiver of Wreck, by virtue of
such warrant, may enter any house or other place, wherever situate, and
also any vessel, and search for such wreck, and seize and detain any
such wreck there found. (2)
If any such seizure of wreck is made in consequence of
information given by any person to the Receiver of Wreck, on the
warrant being issued under this section, the informer shall be
entitled, by way of salvage, to such sum, not exceeding in any case one
hundred dollars, as the Receiver of Wreck may allow. Chapter
39 SALVAGE Salvage of cargo or wreck within North Borneo. 233. Where any vessel is wrecked, stranded or
in distress at any place on or near the coasts of North Borneo or any
tidal water within North Borneo, and services are rendered by any
person in assisting that vessel or saving the cargo or apparel of that
vessel, or any part thereof, and where services are rendered by any
person other than the Receiver of Wreck in saving any wreck, there
shall be payable to the salvor by the
owner of the vessel, cargo, apparel or wreck a reasonable amount of
salvage, to be determined in case of dispute in the manner hereinafter
mentioned. Determination of
salvage disputes. 234. (1) A
dispute as to the amount of salvage, whether of life or property and
whether the services for which it is claimed have been rendered within
or without North Borneo, arising between the salvor
and the owner of any vessel, cargo, apparel or wreck shall, if not
settled by agreement, arbitration or otherwise, in the following cases,
namely – (a) in
any case where the parties in the dispute consent; (b) in any case
where the amount claimed does not exceed one thousand dollars; (c) in
any case where the value of the property saved does not exceed one
thousand dollars; be
referred to and determined by a Court of a Magistrate of the First
Class. (2)
Subject as aforesaid, any dispute as to salvage shall be
determined by the High Court but, if the claimant does not recover in
that Court more than one thousand dollars, he shall not be entitled to
recover any costs, charges, or expenses incurred by him in the
prosecution of his claim, unless that Court certifies that the case was
a fit one to be tried otherwise than under the provisions of subsection
(1). (3)
A dispute relating to salvage may be determined on the
application either of the salvor or of the
owner of the property saved, or of their respective agents. Determination of disputes as to salvage summarily. 235. (1) Disputes
as to salvage which are to be determined under the provisions of
subsection (1) of section 234 shall – (a) where the
disputes relates to the salvage of wreck, be referred to a Court of a
Magistrate of the First Class having jurisdiction at or near the place
where the wreck is found; or (b) where the dispute relates to salvage in
the case of services rendered to any vessel or to the cargo or apparel
thereof or in saving life therefrom, be
referred to a Court of a Magistrate of the First Class having
jurisdiction at or near the port in North Borneo into which the vessel
is first brought after the occurrence by reason whereof the claim of
salvage arises. (2)
Such Court may, for the purpose of determining any such
dispute, call in to its assistance any person conversant with maritime
affairs as assessor, and there shall be paid as part of the costs of
the proceedings to every such assessor in respect of his services such
sum as the Governor may direct. Valuation of property by Receiver. 236. (1) Where any dispute as to salvage arises, the
Receiver of Wreck may, on the application of either party, appoint a valuer to value that property, and shall give
copies of the valuation to both parties. (2)
Any copy of the valuation purporting to be signed by the valuer and to be certified as a true copy by the
Receiver of Wreck, shall be admissible as evidence in any subsequent
proceeding. (3)
There shall be paid in respect of the valuation by the
person applying for the same such fee as the Governor may direct. Detention of property liable for salvage by the Receiver. 237. (1) Where salvage is due to any person under the
provisions of this Part, the Receiver of Wreck shall – (a) if the salvage is due in respect of
services rendered in assisting any vessel, or in saving life therefrom, or in saving the cargo or apparel
thereof, detain the vessel and cargo or apparel; and (b) if the
salvage is due in respect of the saving of any wreck, and the wreck is
not sold as unclaimed under this Part, detain the wreck. (2)
Subject as hereinafter mentioned, the Receiver of Wreck
shall detain the vessel and the cargo and the apparel or the wreck (in
this Part referred to as “detained property”) until payment is made for
salvage or process is issued for the arrest or detention of the
detained property by the High Court. (3)
The Receiver of Wreck may release any detained property if
security is given to his satisfaction, or, if the claim for salvage
exceeds one thousand dollars and any question is raised as to the
sufficiency of the security, to the satisfaction of the High Court. (4)
Any security given for salvage in pursuance of this
section to an amount exceeding one thousand dollars may be enforced by
the High Court in the same manner as if bail had been given in that
Court. Sale of detained property by Receiver. 238. (1) The
Receiver of Wreck may sell any detained property, if the persons liable
to pay the salvage in respect of which the property is detained are
aware of the detention, in the following cases, namely – (a) where the
amount is not disputed, and payment of the amount due is not made
within twenty days after the amount is due; (b) where the amount is disputed, but no
appeal lies from the decision of the first Court to which the dispute
is referred and payment is not made within twenty days after the
decision of the first Court; or (c) where the amount is disputed and an
appeal lies from the decision of the first Court to which the dispute
is referred to some other Court, and within thirty days after the
decision of the first Court neither payment of the sum due is made nor
proceedings are commenced for the purpose of appeal or of obtaining
leave to appeal. (2)
The proceeds of sale of detained property shall, after
payment of the expenses of the sale, be applied by the Receiver of
Wreck in payment of the expenses, fees and salvage incurred and payable
in respect of such property, and so far as not required for that
purpose, shall be paid to the owners of the property or any other
persons entitled to receive the same. Apportionment of salvage under $2,000 by Receiver. 239. (1) Where
the aggregate amount of salvage payable in respect of salvage services
rendered within North Borneo has been finally determined, either
summarily in the manner provided by this Ordinance or by agreement, and
does not exceed two thousand dollars, but a dispute arises as to the
apportionment thereof among several claimants, the person liable to pay
the amount may apply to the Receiver of Wreck for liberty to pay the
same to him; and the Receiver of Wreck shall, if he thinks fit, receive
the same accordingly, and shall grant to the person paying the amount a
certificate of the amount paid and of the services in respect of which
it is paid; and that certificate shall be a full discharge and
indemnity to the person by whom the money is paid and to his vessel,
cargo, apparel and effects against the claims of all persons whomsoever
in respect of the services mentioned in the certificate. (2)
The Receiver of Wreck shall, with all convenient speed,
distribute any amount received by him under this section among the
persons entitled to the same on such evidence, and in such shares and
proportions, as he thinks fit, and may retain any money which appears
to him to be payable to any person who is absent. (3)
A distribution made by the Receiver of Wreck in pursuance
of this section shall be final and conclusive as against all persons
claiming to be entitled to any portion of the amount distributed. Apportionment of salvage by Court. 240. Whenever the aggregate amount of salvage
payable in respect of salvage service rendered within North Borneo has
been finally ascertained and exceeds two thousand dollars and whenever
the aggregate amount of salvage payable in respect of salvage services
rendered elsewhere has been finally ascertained, whatever that amount
may be, then, if any delay or dispute arises as to the apportionment
thereof, the High Court may cause the aggregate amount of salvage
payable to be apportioned among the persons entitled thereto in such
manner as it thinks just, and may for that purpose, if it thinks fit,
appoint any person to carry that apportionment into effect, and may
compel any person in whose hands or under whose control the amount may
be to distribute the same or to bring the same into Court to be there
dealt with as the Court may direct, and may for the purposes aforesaid
issue such processes as it thinks fit. Chapter
40 APPOINTMENT
OF RECEIVERS OF WRECK Director to be Receiver of Wreck. 241. (1) The
Director shall be the Receiver of Wreck for North Borneo. (2)
The Governor may appoint any person to be a Deputy
Receiver of Wreck for any part of North Borneo, and any such Deputy
Receiver of Wreck shall exercise such of the powers as are conferred by
this Part on the Receiver of Wreck and may perform such of the duties
as are imposed by this Part on the Receiver of Wreck as may be
delegated to him by the Receiver of Wreck. Chapter
41 FEES
OF RECEIVER OF WRECK Receiver’s fees. 242. (1) There
shall be paid to the Receiver of Wreck and every Deputy Receiver of
Wreck the expenses properly incurred by them in the performance of
their duties and also, in respect of such other matters as may be
prescribed such fees, as may be prescribed, but the Receiver of Wreck
and the Deputy Receiver of Wreck shall not be entitled to any
remuneration other than those payments. (2)
The Receiver of Wreck and every Deputy Receiver of Wreck
shall, in addition to all other rights and remedies for the recovery of
the expenses and fees aforesaid, have the same rights and remedies in
respect thereof as a salvor has in respect
of salvage due to him. (3)
Whenever any dispute arises as to the amount payable to
the Receiver of wreck or any Deputy Receiver of Wreck in respect of
expenses or fees, that dispute shall be determined by the Governor, and
the Governor’s decision shall be final. (4)
All fees received by the Receiver of Wreck or any Deputy
Receiver of Wreck in respect of any services performed by him as the
Receiver of Wreck or the Deputy Receiver of Wreck, as the case may be,
shall be paid into the general revenue. PART
VIII Chapter
42 LIGHTHOUSES,
BUOYS AND BEACONS Definitions. 243. In this Part, “buoy” and “beacon”
include all other marks and signs of the sea, and “lighthouse” includes
lightships and all floating and other lights and any other aids to
navigation established for the guidance of ships. Exemption from certain dues. 244. There shall be exempted from the payment
of any dues which may be imposed by regulations made under paragraph (h) of subsection (1) of section 277 – (a) ships belonging to Her Majesty or to a
Commonwealth or foreign Government unless carrying cargo or passengers
for freight or fares; (b) sailing
ships, not being pleasure yachts, of less than one hundred tons, and
all ships of less than five tons; (c) yachts and
pleasure boats of under twenty tons; (d) any other
vessel or class of vessels which the Governor in Council may, by order,
declare to be exempted for the purposes of this section. Injury
to lighthouses, etc. 245. Any person who wilfully or negligently – (a) injures or
obscures any lighthouse or the lights exhibited therein, or any buoy,
beacon or navigational aid, or any cables, wires or other apparatus,
either in connection therewith or otherwise; (b) removes, alters, injures or destroys any
lightship, buoy, beacon or navigational aid, or any cables, wires or
other apparatus, either in connection therewith or otherwise; or (c) rides by, make fast to, or runs foul of
any lightship, buoy, beacon or navigational aid; shall,
in addition to the expenses of making good any damage so occasioned, be
guilty of an offence and shall be liable to a fine of two thousand
dollars. Prevention of false lights. 246. (1) Whenever
any fire or light is burnt or exhibited at such place or in such
manner, as to be liable to be mistaken for or affect the visibility or
character of a light proceeding from a lighthouse, the Director may
serve a notice on the owner of the place where the fire or light is
burnt or exhibited, or on the person having charge of such fire or
light either personally or by delivery at the place of abode of such
owner or person, or by affixing the same in some conspicuous spot near
to such fire or light; and may by such notice direct such owner or
person, within a reasonable time to be therein specified, to take
effectual means for extinguishing or effectually screening such
existing fire or light. (2)
Any owner or person who fails, without reasonable cause,
to comply with a notice under subsection (1) shall be deemed guilty of
an offence and shall be liable, in addition to any other penalties or
liabilities of any kind thereby incurred, to imprisonment for six
months and a fine of one thousand dollars. (3)
If any owner or person fails to comply with a notice under
subsection (1), the Director, may, by his servants or workmen, enter
into the place wherein the same may be, and forthwith extinguish such
fire or light, doing no unnecessary damage and all expenses incurred by
the Director in so doing may be recovered from such owner or person as
a civil debt. PART
IX Chapter
43 NORTH
BORNEO LICENSED SHIPS North Borneo
licensed ships. 247. (1) Every
North Borneo licensed ship shall be licensed in such manner and subject
to such conditions as may be prescribed. (2)
It shall be a condition in every licence in respect of a
North Borneo licensed ship that the ship is owned by a person or body
corporate ordinarily resident in North Borneo, Sarawak or Brunei that
the licence shall become void if the ship or any share therein is
transferred, mortgaged or charged to any person or body without the
written permission of the Director. (3)
No North Borneo licensed ship shall, unless express
provision to the contrary is contained in her licence or unless such
action is necessary due to stress of weather or other cause beyond the
control of the master, proceed outside North Borneo. (4)
Any master contravening subsection (3), and any person
aiding or abetting such master, shall be guilty of an offence and shall
be liable to a fine of five thousand dollars, and, in addition the
licence of the ship may be revoked by the Director. PART
X LEGAL
PROCEEDINGS Chapter
44 PROSECUTION
OF OFFENCES Prosecutions, by
whom to be instituted etc. 248. No person shall be charged with any
offence under this Ordinance, other than an offence relating to
discipline or order on board a ship, except on the complaint of the
Director or any person authorized in writing in that behalf in respect
of matters under the jurisdiction of the Director, or the State
Director or any person authorized in writing in that behalf in respect
of matters under the jurisdiction of the State Director; and, in the
case where section 4 of the Territorial Waters Jurisdiction Act, 1878,
applies, no charge shall, save to the extent mentioned in section 5 of
that Act, be proceeded with except with the leave of the Governor. Legal proceedings under the Merchant Shipping Acts in North
Borneo. 249. (1) Where a person is charged in North Borneo with
any offence under the Merchant Shipping Acts, such offence shall be triable in the following manner – (a) if under
those Acts the offence is triable
summarily, it shall be triable by any
Magistrate; (b) if the
offence is declared by those Acts to be a misdemeanour, it shall be triable by any Magistrate of the First Class. (2)
For the purposes of this section, any provision of those
Acts empowering a Court to impose a sentence of penal servitude, or of
imprisonment with hard labour, or of simple imprisonment, shall be
construed as a provision empowering such Court to impose a sentence of
imprisonment. (3)
Notwithstanding the provisions of section 280, such of the
provisions of Part XIII of the Principal Act as are applicable shall,
subject to subsections (1) and (2) continue to apply to legal
proceedings brought in North Borneo under or by virtue of the Merchant
Shipping Acts. Chapter
45 JURISDICTION Provision as to jurisdiction in case of offences. 250. For the purpose of giving jurisdiction
under this Ordinance, every offence shall be deemed to have been
committed and every cause of complaint to have arisen either in the
place in which the same actually was committed or arose, or in any
place in which the offender or person complained against may be. Jurisdiction over ships lying off the coasts. 251. The Governor in Council may, be order,
prescribe the limits, either by area or destruction of vessels, of the
jurisdiction of any Courts over vessels in North Borneo but subject to
any such order where any area within which any Court has jurisdiction
under this Ordinance for any purpose whatever is situate on the coast
of any sea, or abutting on or projecting into any bay, channel, or
other navigable water, such Court shall jurisdiction for the purposes
of this Ordinance over any vessel being on, or lying or passing off,
that coast, or being in or near that bay, channel, or navigable water,
and over all persons on board that vessel or for the time being
belonging thereto, in the same manner as if the vessel or persons were
within the limits of the original jurisdiction of the Court. Chapter
46 INQUIRES
INTO DEATHS Inquiry into cause of death on board ship. 252. Where a case of death has happened on
board any British or North Borneo ship arriving at any port in North
Borneo, other than a ship to which section 690 of the Principal Act
applies, the Port Officer shall inquire into the cause of the death,
and shall make in the official log book an endorsement to the effect,
either that the statement of the cause of death in the log is in his
opinion true, or the contrary, according to the result of the inquiry. Powers of Port
Officer in case of enquires with death. 253. The Port Officer shall, for the purpose
of an inquiry under section 252, have the powers of an inspector under
this Ordinance; and, if in the course of any such inquiry, it appears
to the Port Officer that any such death has been caused on board the
ship by violence or other improper means, he shall either report the
matter to the Attorney-General or, if the emergency of the case so
requires, shall take immediate steps for bringing the offender or
offenders to justice. Chapter
47 DEPOSITIONS Depositions to be received in evidence when witness cannot be
produced. 254. (1) Whenever
in the course of any legal proceeding instituted under this Ordinance
before any Court, or before any person authorized by law or by consent
of parties to receive evidence, the testimony of any witness is
required in relation to the subject-matter of that proceeding, then,
upon due proof that the witness cannot be found in North Borneo, any
deposition that the witness may have previously made on oath in
relation to the same subject matter before any Judge or Magistrate in
any part of the Commonwealth other than North Borneo, or before any
British consular officer in any place not within the Commonwealth,
shall be admissible in evidence: Provided that – (a) if the
proceeding is criminal, a deposition so made shall not be admissible,
unless it was made in the presence of the person accused; and (b) no deposition so made shall be
admissible, unless it is authenticated by the signature of the Judge,
Magistrate or consular officer before whom it was made, and unless such
Judge, Magistrate, or consular officer has certified, if the fact is
so, that the accused was present at the taking thereof. (2)
A deposition so made shall be deemed to be duly
authenticated if it purports to have been signed by the Judge,
Magistrate or consular officer before whom it was made. (3)
It shall not be necessary in any case to prove the
signature or official character of the person appearing to have signed
any such deposition; and, in any criminal proceeding, a certificate
purporting to have been signed by the Judge, Magistrate or consular
officer before whom the deposition was made, that the accused was
present at the taking of the deposition, shall, unless the contrary is
proved, be sufficient evidence of the accused having been present in
manner hereby certified. (4)
Nothing herein contained shall affect any case in which
depositions taken in any proceeding are rendered admissible in evidence
by any other written law. Chapter
48 DETENTION
OF SHIP AND DISTRESS ON SHIP Enforcing detention of ship. 255. (1) Where
under this Ordinance a ship is to be or may be detained, any
commissioned officer on full pay in the naval, military or air force
service of Her Majesty, or any person thereto generally or specially
authorized by the Governor or the Director may detain the ship; and, if
the ship after detention or after service on the master of any notice
or order for detention, proceeds to sea before it is released by
competent authority, the master of the ship, and also the owner and any
person who sends the ship to sea, if that owner or person is party or
privy to the master’s offence, shall be guilty of an offence and shall
be liable to a fine of five thousand dollars. (2)
Where a ship so proceeding to sea takes to sea when on
board thereof in the execution of his duty any officer authorized to
detain the ship, or any government surveyor or officer appointed under
this Ordinance or any officer of Customs, the owner and master of the
ship shall each be liable to pay all expenses of an incidental to the
other officer or surveyor being so taken to sea, and they shall each
also be guilty of an offence and shall be liable to a fine of one
thousand dollars or one hundred dollars for every day until the officer
or surveyor returns, or until such time as would enable him after
leaving the ship to return to the port from which he is taken,
whichever is the greater; and the expenses ordered to be paid may be
recovered in like manner as the fine. (3)
Where under this Ordinance a ship is to be detained the
Port Officer shall, and where under this Ordinance a ship may be
detained the Port Officer may, refuse to grant port clearance. Notice to be given to consular officer where proceedings
taken in respect of foreign ships. 256. Where any foreign ship is detained under
this Ordinance, and where any proceedings are taken under this
Ordinance against the master or owner of any such ship, notice shall
forthwith be given to the consular officer, for the country to which
the ship belongs at or nearest to the port where the ship is for the
time being, and such notice shall specify the grounds on which the ship
has been detained or the proceedings have been taken. Cost of
detaining ship. 257. Where a ship is detained in
pursuance of any provision of this Ordinance which provides for the
detention of a ship until a certain event occurs, subsection (2) of
section 199 shall apply as if the ship has been finally detained within
the meaning of that subsection. Sums ordered to
be paid leviable by distress on ship. 258. Where any Court has power under this
Ordinance to make an order directing payment to be made of any seaman’s
wages, fines or other sums of money, then, if the party so directed to
pay the same is the master or owner of a ship, and the same is not paid
at the time or in the manner prescribed in the order, the Court which
made the order may, in addition to any other powers it may have for the
purpose of compelling payment, direct the amount remaining unpaid to be
levied by distress and sale of the ship, her tackle, furniture and
apparel. Chapter
49 EVIDENCE
AND SERVICE OF DOCUMENTS Proof of
attestation not required. 259. Notwithstanding anything in the Evidence
Ordinance [Cap. 43.], where any document is required
by this Ordinance to be executed in the presence of or to be attested
by any witness or witnesses, that document may be proved by the
evidence of any person who is able to bear witness to the requisite
facts, without calling the attesting witness or attesting witnesses or
any of them. Admissibility of documents in evidence. 260. (1) Where
a document is by this Ordinance declared to be admissible in evidence,
such document shall, on its production from the proper custody, be
admissible in evidence in any Court or before any person having by law
or the consent of the parties authority to receive evidence, and,
subject to all just exceptions, shall be evidence of the matters stated
therein in pursuance of this Ordinance or by any officer in pursuance
of his duties as such officer. (2)
A copy of any such document or extract therefrom shall also be so admissible in
evidence if proved to be a copy or extract made from or compared with
the original, or if it purports to be signed and certified as a true
copy or extract by the officer to whose custody the original document
was entrusted. (3)
Any person having by law, or
the consent of the parties, authority to receive evidence shall have
the same powers as a Court to impound any document to which this
section applies which has a false or counterfeit seal, stamp, or
signature affixed thereto. Service of document. 261. (1) Where, for the purpose of this Ordinance, any
document is to be served on any person, that document may be served – (a) in any case
by delivering a copy thereof personally to the person to be served, or
by leaving the same at his last place of abode; (b) if the document is to be served on the
master of a ship, where there is one, or on a person belonging to a
ship, by leaving the same for him on board that ship with the person
being or appearing to be in command or charge of the ship; and (c) if the document is to be served on the
master of a ship, where there is no master, and the ship is within
North Borneo, on the managing owner of the ship, or, if there is no
managing owner, on some agent of the owner residing in North Borneo, or
where no such agent is known or can be found, by affixing a copy
thereof in some conspicuous place in the ship. (2)
If any person obstructs the service on the master of a
ship of any document under the provisions of this Ordinance relating to
the detention of ships as unseaworthy, that person shall be guilty of
an offence and shall be liable to a fine of two hundred dollars; and,
if the owner or master of the ship is party or privy to the obstruction
he shall be guilty of an offence, and shall be liable to imprisonment
for two years and a fine of five thousand dollars. Chapter
50 PROTECTION
OF OFFICERS, ETC All officers, etc., to be public servants. 262. Every Officer appointed under this
Ordinance, and every person appointed or authorized under this
Ordinance, for any purpose of this Ordinance when acting in pursuance
of such purpose, shall be deemed to be a public servant within the
meaning of the Penal Code [Ordinance No. 3 of 1959.]. Protection of public servants. 263. No suit shall be maintained against any
public servant within the meaning of the Penal Code for or in respect
of anything done or omitted to be done by him in good faith in the
exercise or performance or in the purported exercise or performance of
any power, authority or duty conferred or imposed on him under this
Ordinance. PART
XI SUPPLEMENTAL Chapter
51 GENERAL
CONTROL BY THE DIRECTOR Administration of the Ordinance. 264. (1) Except as provided in subsection (2), the
Director shall be the officer having the general superintendence of the
administration of this Ordinance and authorized to carry the provisions
of this Ordinance into execution. (2)
The State Director shall be the officer having the general
superintendence of the administration of the provisions of the
Ordinance relating to the following matters: (i) shipping under fifteen registered tons, including
the carriage of the passengers and goods by such shipping; (ii) ports
and harbour, other than those declared to be federal by or under
federal law; and (iii) regulation of
traffic by water in ports and harbours (except traffic in federal ports
or harbours) and on rivers wholly within the State. Chapter
52 APPOINTMENT
OF OFFICERS, ETC. Appointment of officers. 265. The Governor may appoint such officers
in addition to any officers whom he is by the provisions of this
Ordinance especially empowered to appoint, as may
from time to time in his opinion be required for the purpose of giving
effect to the provisions of this Ordinance. Power for seeing that Ordinance is complied with. 266. (1) Where
any of the following officers, namely – (a) the Director; (b) any
commissioned officer of any of Her Majesty’s ships on full pay; (c) a
Superintendent; (d) a Port Officer has
reason to suspect that any provisions of this Ordinance, or any law for
the time being in force relating to merchant seamen or navigation, is
not complied with, that officer may – (i) require
the owner, master or any of the crew of any British or North Borneo
ship to produce an official log book or other document relating to the
crew or any member thereof in their respective possession or control; (ii) require
any such master to produce a list of all persons on board his ship, and
to take copies of any official log books, or documents, or of any part
thereof; (iii) muster the
crew of any such ship; and (iv) summon the
master to appear and give any explanation concerning the ship or her
crew or the official log books or documents produced or required to be
produced. (2)
If any person, on being duly required by an officer
authorized under this section, fails without reasonable cause to
produce to that officer any such official log book or document as he is
required to produce under this section, or refuses to allow the same to
be inspected or copied, or impedes any muster of the crew required
under this section, or refuses or neglects to give any explanation
which he is required under this section to give, or knowingly misleads
or deceives any officer authorized under this section to demand any
such explanation, that person shall be guilty of an offence and shall
be liable to a fine of five hundred dollars. Chapter
53 INSPECTORS Appointment
of inspectors to report on accidents, etc. 267.
The
Governor may as and when he thinks fir appoint any person as an
inspector to report to the Director – (a) upon the
nature and causes of any accident or damage which any ship has
sustained or caused, or is alleged to have sustained or caused; (b) whether the provisions of this
Ordinance, or any subsidiary legislation made or deemed to have been
made under or by virtue of this Ordinance, have been complied with; or (c) whether the
hull and machinery of any ship are sufficient and in good condition. Powers of inspectors. 268. (1) An
inspector so appointed and any person having the powers of such an
inspector – (a) may go on board any ship and inspect the
same or any part thereof, or any of the machinery, boats, equipments or
articles on board thereof to which the provisions of this Ordinance
apply, not unnecessarily detaining or delaying her from proceeding on
any voyage; (b) may enter and
inspect any premises the entry or inspection of which appears to him to
be requisite for the purposes of the report which he is directed to
make; (c) may, by summons under his hand, require
the attendance of all such persons as he thinks fit to call before him
and examine for the purpose of his report, and may require answers or
returns to any inquires he thinks fit to make; (d) may require
and enforce the production of all books, papers, or documents which he
considers important for the purpose of his report; and (e) may
administer oaths, or may, in lieu of requiring or administering an
oath, require every person examined by him to make and subscribe a
declaration (which shall be free from stamp duty) of the truth of the
statements made by him in his examination. (2)
Every witness summoned under this section shall be allowed
such expenses as would be allowed to a witness attending on summons to
give evidence before the High Court; and in the case of any dispute as
to the amount of those expenses, the same shall be referred to a
Registrar of the High Court and the Registrar shall, on request made to
him for that purpose under the hand of the inspector or person having
the powers of an inspector, ascertain and certify the proper amount of
those expenses. (3)
If any person refuses to attend as a witness before an
inspector or before any person having the powers of an inspector, after
having been required to do so in the manner provided by this section
and after having had a tender made to him of the expenses, if any, to
which he is entitled under this section, or refuses or neglects to make
any answer, or to give any return, or to produce any document in his possession or to make or subscribe any
declaration which an inspector or person having the powers of an
inspector is hereby empowered to require, that person shall be guilty
of an offence and shall be liable to a fine of two hundred dollars. Penalty for obstructing inspectors in the execution of their
duty. 269. If any person wilfully impedes an
inspector or any person having the powers of an inspector in the
execution of his duty, whether on board a ship or elsewhere, that
person shall be guilty of an offence and shall be liable to a fine of
five hundred dollars; and any such person may be seized and detained by
the inspector or person having the powers of an inspector, or by any
person or persons whom that inspector or person may call to his
assistance, until he can be conveniently taken before a Magistrate. Chapter
54 TRANSMISSION
OF DOCUMENTS Notices, etc. to be in writing and provision as to sending by
post. 270. (1) Where
by this Ordinance any notice, authority, order, direction or other
communication is required or authorized to be given or made by the
Governor or the Director to any person not being an officer appointed
under this Ordinance, the same shall be given or made in writing. (2)
Where any notice or document is by this ordinance required
to be transmitted or sent, the same may be transmitted or sent by post. Chapter
55 EXEMPTION
OF HER MAJESTY’S SHIPS Exemption of Her Majesty’s ships. 271. Subject to the provisions of any
regulations made under section 277 this Ordinance shall not, except
where otherwise specially provided, apply to ships belonging to Her
Majesty. Chapter
56 EXEMPTION
OF OTHER SHIPS FROM PROVISIONS OF THE ORDINANCE Exemption of certain foreign ships. 272. Where Her Majesty has by Order in
Council under section 1 or section 2 of the Merchant Shipping
(Equivalent Provisions) Act, 1925, directed that any provisions of the
Merchant Shipping Acts which apply to foreign ships, or to British
ships registered in any part of the Commonwealth outside the United
Kingdom, or to ships registered in a port of a territory over which Her
Majesty exercises jurisdiction, while such ships are in port of the
United Kingdom, but not otherwise, shall not apply to the ships of any
foreign country, or to ships registered in any part of the
Commonwealth, or to ships registered in any territory as aforesaid,
which is specified in such Order in Council, while such ships are
within any part of the United Kingdom, if it is proved in respect of
any such ship that it complies with the corresponding provisions of the
law of such foreign country or part of the Commonwealth or territory
applicable to it, no provisions of this Ordinance corresponding to any
such provisions of the Merchant Shipping Acts as aforesaid shall apply
to any ship of such foreign country or to any ship registered in such
part of the Commonwealth, territory while it is within any port in
North Borneo, if it is proved that such ship complies with the
corresponding provisions of the law of that foreign country or of that
part of the Commonwealth or territory, applicable to it. Governor may
exempt. 273. Subject to section 128 and 183 the
Governor may, in his discretion and subject to such conditions as he
may think fit to impose, exempt any vessel or class or vessel from all
or any of the provisions of this Ordinance or of any subsidiary
legislation made or deemed to have been made hereunder. Chapter
57 SPECIAL
PROVISIONS FOR COASTAL TRADE SHIPS Special provisions for coastal ships. 274. The provisions of this Ordinance or of
any subsidiary legislation made or deemed have been made hereunder may
be modified in their application to coastal trade ships in such manner
and to such extent as the Governor in Council may by order provide. Chapter
58 MISCELLANEOUS
PROVISONS Port clearance. 275. If any person takes any ship to sea from
any port in North Borneo without having first obtained port clearance,
he shall be guilty of an offence and, except for an offence under
sections 10, 145 or 174, shall be liable to imprisonment for three
months and a fine of five hundred dollars. Tonnage of foreign ships. 276. (1) The
tonnage of a foreign ship belonging to a foreign country in respect of
which an Order in Council has been made under section 84 of the
Principal Act shall, for the purposes of this Ordinance, be the tonnage
denoted in such ship’s certificate of registry or other national papers. (2)
Where for any purpose of this Ordinance it is required to
ascertain the tonnage of any foreign ship to which the provisions of
subsection (1) do not apply, such tonnage shall be ascertained in
accordance with the tonnage regulations of the Principal Act, as though
such ship were a British ship requiring to be registered. Chapter
59 SUBSIDIARY
LEGISLATION Regulations. 277. (1) The
Governor in Council may make regulations generally for carrying this
Ordinance into effect, and, in particular, such regulations may provide
for – (a) anything
which is required to be, or may be, prescribed under this Ordinance; (b) the
construction of ships and the carriage of passengers and cargo; (c) the control
of ports, harbours and wharves including without prejudice to the
generality of the foregoing – (i) the
imposition of dues, including the exemption of any class of ship from
the payment of all or any dues, and the distraint
of the equipment and other things of or belonging to any ship for
non-payment of such dues; and (ii) the
loading, unloading and delivery of cargo and the exercise of a right of
lien over cargo for freight, dues or other charges unpaid in respect
thereof; (iii) the
expenditure (capital and recurrent) and revenues of any port or part
thereof; (d) the
establishment of optional pilot areas, the establishment of pilotage authorities and, if considered
desirable, their incorporation, the examination and licensing of pilots
and their rights, duties and liabilities, pilotage
dues, the liability of masters and others when employing a pilot and
all other matters relating to pilotage; (e) subject
to the prior approval of the Secretary of State, the implementation, in
whole or in part, of any international convention relating to Merchant
Shipping or to any matter incidental thereto or connected therewith; (f) the control of vessels operating
within North Borneo (other than naval vessels of Her Majesty, or of the
Government of any part of the Commonwealth, or of a foreign Government)
for which no other provision has been made in this Ordinance or by any
other enactment, or which has been generally or partially exempted from
the provisions of this Ordinance; (g) the procedure
to be followed in proceedings under Part VI; (h) the
imposition of buoys and light dues, the establishment of a buoys and
lights fund and the administration thereof; (i) the
relief and return of distresses seamen; and the recovery of expenses
incurred in connection therewith; (j) the classification of coastal
trade ships, either in relation to the seaworthiness of such ships or
the manning thereof, and restricting the area of the coastal trade
limits within which any class of such ships may ply; (k) fees and charges including fees and
charges related to or connected with the registration of British ship
in North Borneo; and (l) documents
and forms, their admissibility in evidence and their exemption from
stamp duty. (2)
Any such regulations may provide a penalty for the breach
or contravention thereof not exceeding imprisonment for one month or a
fine of one thousand dollars. Application of subsidiary legislation. 278. Where the Governor in Council is
empowered to make any subsidiary legislation under any of the
provisions of this Ordinance such subsidiary legislation may be made by
applying, mutatis mutandis, any subsidiary legislation
made from time to time under the Merchant Shipping Acts or under the
Merchant Shipping Ordinance, 1960 of the Colony of Sarawak. Amendment of Cap. 16. 279. The Boats and Fisheries Ordinance is
amended – (a) by deleting
the words “Boats and” where they appear in capital letters or
otherwise, in the title, the long title and section 1 thereof; (b) by deleting
the definition of “boat” and “Registrar” in section 2 thereof; (c) by repealing
sections 3, 4, 5, 6 and 7 thereof; and (d) by
re-numbering sections 8, 9, 10 and 11 as 3, 4, 5 and 6 respectively. Repeals. 280. (1) The Carriage of Goods by Sea Ordinance [Cap. 20.], the Ports and Harbours Ordinance [Cap.
103] and Shipping Ordinance [Cap. 135.], together
with all subsidiary legislation made under these Ordinances, are hereby
repealed. (2)
The Merchant Shipping Acts, 1894 to 1958 (save the
provisions specified in the second Schedule) to the extent to which
these Acts apply to North Borneo ships when in North Borneo are
repealed. Consequential provisions. 281. References in any other written law to a
ship registered in North Borneo shall be deemed to include a reference
to a North Borneo licensed ship and to a vessel licensed in Sabah under
section 475 of the Merchant Shipping Ordinance 1952 of the Federation
of Malaya. FIRST
SCHEDULE (Section
2) TRADE
LIMITS In this Schedule
“coast” includes all waters connected therewith navigable by sea-going
vessels. PART
A COASTAL
TRADE LIMITS The limits bound
by a line drawn from a position with Tanjong
Datu lighthouse bearing 180o distance 10 miles thence to a
position with Tanjong Po lighthouse
bearing 180o distance 10 miles thence to a position with Tanjong Sirik
lighthouse bearing 180o distance 20 miles thence to a
position with Tanjong Kedurang
lighthouse bearing 180o distance 20 miles thence to a
position with Tanjong Baram
lighthouse bearing 180o distance 20 miles thence to a
position in latitude 07o 40’ North, longitude 117o 00’
East thence to a position in latitude 07o 24’ 45” North,
longitude 117o 25’ 30” East, thence to a position in
latitude 05o 16’ North, longitude 119o 35’ East,
thence to a position in latitude 04o 42’, longitude 119o
00’ East, thence to a position in latitude 04o 00’ North,
longitude 119o 00’ East, thence to a position in latitude 04o
00’ North, longitude 118o 00’ East, thence to the territory
boundary stone on the eastern end of Sibatik
Island and thence following the coast of North Borneo, Sarawak, Brunei
and Sarawak in that order, back to the starting point north of Tanjong Datu lighthouse. PART
B HOME
TRADE LIMITS The limits bound
by a line drawn from a position in the Gulf of Martaban in latitude 16o
15’ North, longitude 96o 00’ East in a south-easterly
direction to a position in latitude 15o 00’ North, longitude
97o 00’ East, thence due South to a position in latitude 19o
00’ North, longitude 97o 00’ East, thence in a
south-easterly direction to a position in latitude 6o 00’
North, longitude 94o East, thence due South to a position in
4o 00’ North, longitude 94o 00’ East, thence in
a south-easterly direction to a position in 8o 00’ South,
longitude 104o 00’ East, thence in an easterly direction to
a position in latitude 10o 00’ South, longitude 120o
00’ East, thence due East to a position in latitude 10o 00’
South, longitude 125o 00’ East, thence due North to a
position in latitude 8o 00’ North, longitude 125o
00’ East, thence due West to a position in latitude 8o 00’
North, longitude 110o 00’ East, thence in a 315 direction
(N.W. true) to the coast of Vietnam, thence initially westward
following the coasts of Vietnam, Cambodia, Thailand, the Malayan
Peninsula and Burma to the starting point. Provided that
those waters which include the West and South-West coasts of Sumatra,
the South coast of Java and the South coasts of the islands lying due
East of Java (namely Bali, Lombak,
Sumbawa, Flores and other islands) shall be excluded from these limits
between the 15th day of April and the 15th day of October in each year. PART
C LOCAL
TRADE LIMITS The limits bound
by a line drawn from the North point of Junk Ceylon to the North-West
point of Pulo Web, thence to the North
point of Pulo Bras, thence following the
East coasts of Pulo Bras and Pulo Nasi Besar to Acheen Head on the North coast of Sumatra,
thence along the North and East coasts of Sumatra to the southern
entrance of Banka Strait, thence in an easterly direction to Cape Sambar off the South-West corner of Indonesian
Borneo (Kalimatan Barat) thence following
the coast of Indonesian Borneo, Sarawak, Brunei and North Borneo in an
approximately northerly, north-easterly and south-easterly direction to
the territorial boundary stone on the eastern end of Sibatik Island in a position latitude 4o
10’ North, longitude 117o 54’ 14” East, thence in a
south-easterly direction for a distance of thirty miles to a position
in latitude 3o 45’ North, longitude 118o 20’ East
and returning in the reserve direction with the line forming an
imaginary thirty mile-wide corridor along the coast to a position
latitude 3o 13’ North, longitude 11o 16’ East,
thence in a West-North-westerly direction to Cape Datu (Great Natuna Island) in a position latitude 4o
16’ North, longitude 108o 11’ East, thence in a
north-westerly direction to a position on the Malayan coast where it is
intersected by the eight parallel of North latitude thence, initially,
in a southerly direction following the coast of the Malayan Peninsular
back to the starting point.
Passed
this 27th day of July, 1960. R.
A. LIND, Clerk
of Legislative Council. THIS PRINTED IMPRESSION has
been carefully compared by me with the Bill which
has passed the Legislative Council and found by me to be a true and
correct copy of the said Bill. R.
A. LIND, Clerk
of Legislative Council. November
2008 |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||