Some of the Shipowners complained of the reintroduction of a liability nearly unlimited as set forth in the 511th clause,[163] urging that foreign shipowners could not be rendered liable to its operation, and that Shipowners are expressly exempted from liability for damage caused by the negligence or misconduct of licensed pilots, on the very ground that their competency has been tested and approved by public authorities. This last argument is, however, wholly untenable, unless a perfect immunity is to be accorded to every ship-master who may have obtained a certificate of qualification. The municipal law of one State can only bind those subjects who owe allegiance thereto; but all civilised States frame regulations for the protection of life and property. It would be very difficult to suggest any improvement in the law. The provisions in the Merchant Shipping Act were the result of profound consideration, and ought to be deemed to have effected as reasonable an adjustment as is possible, between the owners of sea-going ships and persons sustaining damage.
who think too much discretion has been given to the Emigration officer.
With regard to the Passenger Act, the central body of Shipowners further complained of the discretionary power exercised by the Emigration officer; and, in recent reports, have called attention to those provisions which “while they harass the Shipowner, do not in the least tend to the advantage, comfort, or safety of the passengers;” the consequence of so much being left to the discretion of the Emigration officer leading, as they thought, to this, that the mode of fitting out emigrant vessels depends mainly on his will, and varies, therefore, with each port from which the vessel sails.[164] The “fiend discretion,” as a well-known writer[165] has described it, is no doubt ever abhorrent to Englishmen, who watch, with Constitutional jealousy, the rights of property and of the subject. But it is, indeed, the cardinal difficulty of administration. A hard and fast law stops improvement, and reduces everything to a dead level. Discretion may be tyranny. The experience, however, of the frauds, oppression, and cruelties, practised in former years on the unprotected emigrant, will, I doubt not, continue to operate on the Legislature, and will prevent them from relaxing many portions of the present rigorous system, which has at least produced various salutary improvements.
Though slightly since modified, principle of Passenger Act remains the same.
Though modifications and alterations have been made in the Passenger Act of 1855, the most important of which has been the transfer of its management from the Emigration Commissioners to the Board of Trade, its leading principles are still unchanged, and these, in their main features, have now been adopted by nearly all other countries. The changes most worthy of note are to be found (Clause 35, &c.) in the Merchant Shipping Acts Amendment Act of 1862, which gives the owner or master of any passenger ship power to reject, as a passenger, any “drunken or disorderly” person; or to land such person, or others, as “molest or continue to molest any passenger,” at any convenient port in the United Kingdom. Power is also given in this Act to inflict a penalty, not exceeding 20l., on any passenger who interferes with the crew in the execution of their duty; or “who wilfully does, or causes to be done, anything in such a manner as to obstruct or injure any part of the machinery or tackle of such steamer.”
The “rule of the road at sea.”
The Act of 1862 also laid down more clear and distinct sailing rules; and as these are of great importance, I furnish them at length in a footnote.[166] For these rules the country is greatly indebted to the exertions of Mr. Milner Gibson, when President of the Board of Trade, without whose practical knowledge of the subject (as a first-class yachtsman and navigator), and his patience and temper, the nautical men connected with the Board of Trade and Trinity House, as well as various naval officers, in office and out of doors, would never have consented to them. Even now we frequently read in the daily press letters opposed to these rules, just as we find writers on finance who have their currency hobbies, and who are not, and never will be, satisfied with Sir Robert Peel’s Bank Charter Act of 1844.
Examination now required for engineers as well as masters of steam-ships.
By the Merchant Shipping Act of 1854, the master and chief mate of all sea-going vessels, whether sailing ships or steamers, are, as I have already explained, required to possess a certificate of previous servitude or of competency. The Act of 1862 extended, and to great advantage, the principle of examination, also, to engineers engaged in sea-going steamers, who, since then, have been required to undergo an examination, and produce certificates of good conduct and sobriety. Their certificates of competency are of two grades—first class and second class. Any sea-going home-trade passenger steamer, or any foreign-going steam-ship of more than one hundred horse-power nominal, must, therefore, now carry, at least, one engineer who possesses a certificate of competency; and all steamers of greater power must have, at least, two such engineers, one of whom may be of the second class. But all engineers who had served as such in sea-going vessels, previously to the 1st April, 1862, were entitled to a certificate of service, and were not required to undergo an examination.
Though many owners of steam-ships were strongly opposed to any legislative interference with the engineers whom they employed, alleging, among other reasons, that they were thus frequently prevented from promoting men in their service who had served them well and faithfully—as for instance, those in an inferior capacity, such as the head stoker—there can be no doubt that the effect of the law, enforcing these examinations, has been as salutary in the case of engineers as it has proved in the case of masters and mates. There may be exceptions to the rule, but, on the whole, the requirements of the Act have tended, materially, to improve the class of men now employed as engineers on our merchant steamers, and have, as such, been generally accepted by the men themselves.