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(Repealed) Interpretation. 2.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) | |||||||||||||||