Merchant Shipping Bill, 1947—Second Stage.

Question proposed: "That the Bill be now read a second time."

The Minister for Industry and Commerce (Mr. Lemass)

The main purpose of this Bill is to enact as permanent legislation a number of the Emergency Powers Orders which were made in connection with merchant shipping during the war. I think that the House is aware that the general position concerning merchant shipping legislation here is unsatisfactory. The Merchant Shipping Act of 1894, which is the main Act, was framed by the British Parliament as an Imperial Statute intended to cater for the merchant Shipping position in all parts of the British Empire of that year. It does not fit in with our position at the present time or with the concept of an independent Irish shipping service. There are, however, a very large number of problems to be solved before we can produce a comprehensive shipping Act. The actual drafting of a comprehensive shipping Bill has been in progress for some time, but it is by no means completed. There are a number of matters, however, which cannot be conveniently left until the comprehensive Bill can be produced and this Bill is designed to give effect to them. The first matter for which the Bill makes provision is the hoisting of the Irish flag on Irish ships. Until 1939, the law here required that Irish ships should hoist the British Red Ensign.

We had a Bill prepared in 1939 to remedy that situation, but with the outbreak of war it was necessary to act quickly and an Emergency Powers Order was made which is now being established as the permanent law. The Order made in 1939 and the proposals in this Bill require every ship other than a fishing boat to hoist the Irish Tricolour when entering or leaving any port outside the State, and in the case of vessels of 50 tons gross or upwards on entering or leaving any home ports. The hoisting of any other national colours on an Irish ship is prohibited. In other countries there is a practice of permitting the use of a distinctive club flag instead of the merchant flag by yacht clubs, and powers are being taken here to authorise the use by members of such clubs of a variation of the national flag.

During the emergency it was necessary to take power to enable a foreign ship taken on charter by an approved Irish charterer to be registered as an Irish ship. It is proposed to continue that power so that a ship taken on charter may be registered temporarily as an Irish ship and be entitled to the protection of the Irish flag. There is, however, in Section 8 of the Bill power conferred on the Minister for Industry and Commerce, at his discretion, to refuse registration to any ship or any class of ships. It is not anticipated that this power will have to be used frequently, but occasion may arise when it may be advisable to refuse registration — for example, if the owner of a vessel was seeking registration as a means of evading less favourable conditions elsewhere, or if there were grounds for thinking that he might use the Irish flag as a cover for illegal or undesirable activities.

In 1939 it also became necessary to control the transfer of registry and the sale or mortgage of Irish ships. In practice, licences for transfer were refused only where it was proposed to sell or mortgage a vessel to a person outside the State. Even yet licences are not being granted in such cases except where the vessel is a small pleasure craft, or an obselete ship which the owners are proposing to replace with a modern vessel. There are still restrictions of a similar kind in force in all other countries. Irish owners of vessels which are registered at ports elsewhere are still unable to effect the transfer of registry to this country. When the tonnage position improves these restrictions can be materially eased. On that account, Sections 9 and 10 of the Bill are framed so as to allow these matters to be dealt with by regulations made by the Minister for Industry and Commerce, which regulations can be varied from time to time in accordance with changes in the circumstances.

Foreign going ships are required to carry masters and navigating and engineer officers with appropriate certificates of competency. Up to the present such certificates have not been issued in this country. It has been decided to set up an independent system of examination, and to issue Irish certificates of competency as soon as circumstances permit. It is obvious that, for many years to come, officers on Irish ships will be men who have obtained their certificates as a result of examinations conducted by other States. Section 7 of the Bill provides that the Government may recognise for service on Irish ships certificates of competency issued by other Governments where the Minister for Industry and Commerce is satisfied that they represent adequate qualifications. In due course, when the Irish certificates are issued, it is hoped that arrangements will be made with other countries for the recognition of certificates of competency on a reciprocal basis.

The law requires the masters of foreign-going ships or of home trade ships over a certain tonnage to enter into an agreement with their crews in an approved form. It became a common practice to include in such agreements a clause permitting the master to dispense with the services of a member of the crew at a home port without notice. A member of the crew could terminate his service on giving 24 hours' notice. In a recent High Court case it was held that the clause was void as it purported to deprive the seaman of his right to compensation if dismissed within a month. The Merchant Shipping Acts provide that no agreement may operate to deprive the seaman of his right to recover the wages to which he would be entitled in the absence of agreement. I am informed that both shipowners and seamen favour a clause in agreements permitting 24 hours' notice on either side. On the master's side, this is provided for in Section 5 of the Bill. It is not necessary to have a similar provision in respect of seamen as such agreement would not be inconsistent with the present provision.

There is another provision dealing with conditions of employment. It is well known that, from time to time, despite the efforts of the representatives of shipowners and the officials of seamen's unions, the sailing of a ship is often delayed by the failure of one or two members of the crew to join before the time fixed for sailing. With the shortage of shipping such delays should be avoided, apart altogether from the additional expense to which the shipowner is put by it. The penalty under the present law is forfeiture of a sum not exceeding two days' pay from a seaman's wages, but in practice it is found that a seaman who fails to join his ship may have no wages due to him and, consequently, escapes the penalty altogether. It is proposed to amend the law in that regard and substitute for the forfeiture of wages a fine not exceeding £10.

The present law required safety precautions to be taken in the case of the larger type of passenger vessel. Small boats plying for hire between the mainland and islands off the coast, in coastal waters and in rivers and lakes, have been exempt from control except in a few cases where by-laws were made by the local authorities who, however, had no staff to enforce them. It is proposed in Section 11 of the Bill that small craft carrying passengers for reward should be obliged to comply with minimum safety regulations.

Senators will remember that this country was represented at a special Maritime Session of the International Labour Office which was held last year in Seattle. The report of the Government members of the delegation to the conference, and the text of the instruments which were adopted at the conference, were presented to the Oireachtas in June last. The main purpose of the conference was to secure agreement on certain standards in respect to conditions for seamen. I may say that the prevailing conditions for seamen on Irish ships are, in most respects, better than the agreed minimum standards laid down at that international conference. Consultations between the representatives of shipowners and of the seamen's unions and the Department of Industry and Commerce are still in progress in regard to the standards agreed upon, and I hope that this will be one of the first countries to ratify most of the conventions that were adopted at the Seattle conference. Power is given in the Bill to the Minister for Industry and Commerce, under Section 12, to make regulations for promoting the welfare of seamen on Irish ships or at Irish ports. This provision will enable effect to be given to the conventions adopted at the conference. These conventions are listed in the First Schedule to the Bill.

Section 13 of the Bill deals with bills of lading. Bills of lading are documents given by shipowners or ship charterers to consignors acknowledging the receipt of goods, and setting out the terms upon which they are to be shipped and delivered. An International Maritime Conference was held in Brussels in 1922 which agreed upon certain standard rules for inclusion in bills of lading with a view to the enactment of uniform legislation by all maritime countries. Legislation to that effect has been passed in a number of countries, including the United States, Britain, France, Canada and Australia. Now that an Irish mercantile marine service is developing, it is desirable that this country should fall into line, and provision is made in the Bill for the adoption of uniform rules with regard to bills of lading which are set out in the Second Schedule of the Bill.

The rules define the responsibilities and liabilities, the rights and immunities of sea carriers, and will, if the Bill becomes law, become part of all contracts for the carriage of goods by sea evidenced by bills of lading in this country. Bills of lading are not ordinarily used in the coastal trade which is, accordingly, excluded from the scope of these provisions. Trade with Britain is also excluded, as a reciprocal provision is contained in the British Carriage of Goods by Sea Act, 1924, in regard to trade with this country.

These are the main provisions of the Bill. As will be appreciated, it relates to a variety of matters not necessarily connected one with the other, but all associated with merchant shipping. It is desirable to have the law settled on the lines set out here pending the day when it will be possible to have the whole merchant shipping code brought up to date in a comprehensive measure.

Mr. Duffy

Perhaps it would be fitting that this House should extend a hearty welcome to the Bill inasmuch as it is the first Bill of this kind which has come before either House of the Oireachtas in a period of 25 years. The primary purpose of the Bill is to establish, in permanent legislation, the authority of the Irish flag in foreign ports. That is a matter which, I think, is of great importance. On that I think we are entitled to express our appreciation to the Minister for the action he has taken. That gives rise to another thought. I am puzzled to know what is meant by an Irish ship. I am raising the matter now rather than on the Committee Stage so that the Minister may be in a position to tell us more about it, if not this afternoon, then on the Committee Stage.

Mr. Lemass

It is defined in Section 1.

Mr. Duffy

I am going to refer to that. Section 1 says that the expression "Irish ship" means

"(a) a ship which is registered in the State under the Principal Act"

or something else. When we look at the Principal Act we discover that, so far as a British ship is concerned, there is no doubt in the world as to who may register. Under Section 1 of the Act of 1894 we find this:—

"A ship shall not be deemed to be a British ship unless owned wholly by the persons in the following description."

It is well to emphasise this point, that, so far as the registration of a ship in Britain is concerned, it can be effected only by British subjects or other persons who are defined in the first section of the 1894 Act. When we read that in relation to our Bill, we must regard the references in the British section to the United Kingdom and Great Britain as references to Ireland. If that is so, a ship shall not be deemed to be an Irish ship, unless owned wholly by persons of the following description, that is to say, a natural-born Irish citizen or persons naturalised in pursuance of our laws, persons made denizens by letters of denization and bodies corporate established under and subject to the laws of Ireland, and so on. If that is the position, if it is clear that only an Irish citizen or a body of Irish citizens can register a ship at an Irish port, the position is perfectly clear and satisfactory, but I doubt if that is the fact.

In 1922, a large number of ships were registered here under the British Act of 1894, the owners of which were not resident in this country, were not domiciled in this country, were not citizens of this State. A number of these ships transferred their registration in 1922. Some remained, and I think that some of these are still on our register, although, if the reading of the Act of 1894 is to be subject to the interpretation I have given — substituting the word "Ireland" for "Great Britain" and "United Kingdom"— I doubt whether that registration can be validly effected at all. I have been looking at the names of certain ships which were lost during the war period. In 1940, seven or eight ships were sunk and a number of lives lost. In other years, also, other ships were lost. Take the case of one ship lost after being bombed on the 2nd January, 1942, the City of Bremen. That ship, so far as I know, was registered in an Irish port, but I wonder whether it was owned by Irish nationals. I raised the point because I want to have the matter cleared up. I do not know, as I say, whether in fact the ship was owned by Irish nationals, but I put this point, that Irish ownership and Irish registration means nothing whatever, unless it means that a ship is owned by our people.

For those who have not made a study of this subject, perhaps I should point out that in every case the shares in a ship number 64. There can be 64 owners, but not more than 64, unless one or more shares are held jointly. It may be that a body corporate will own all 64 shares, but in any event under the 1894 Act the shares are divided into 64 parts, and these, so far as Great Britain is concerned, must be held, all of them, by British corporations. If a British corporation like the B. & I. can take a ship here for registration, it means that it is claiming the protection of our flag and asking us to defend the interests of that ship in foreign ports, although we have no control whatever over the proprietors of the 64 shares.

It is known to most members of the House that registration in the case of a ship is somewhat different from registration in the case of land or other property. The registration in every case is a local registration. It means the entry of particulars of the ship in a particular port — it may be Dublin and it may be Kinsale, Galway or Tralee — and the registrar is the chief officer of customs and excise at that port. No matter where the ownership of the ship is effected, the deeds and documents must go back to that local port. There is no record in the world, no effective record, of the ownership of the shares in that ship except at the local port which may as well be Galway or Kinsale as Dublin. If, therefore, a body of Irishmen buy a ship and register their 64 shares in Kinsale, Kinsale becomes the home port of that ship and she is required, under the Merchant Shipping Act, to carry the word "Kinsale" in conspicuous letters. Should that ship be sold in China, the sale is not effective until it is registered in Kinsale. But what control do we exercise over the sale of these ships? Does the chief customs officer at Kinsale refuse to register the transfer of shares if the purchaser is not an Irish citizen? If he were a customs officer in Liverpool, there is no doubt that he would refuse to effect the registration of the transfer, unless the purchaser was a British subject or a British-owned corporation.

What makes me very apprehensive about this Bill are the provisions of Sections 8, 9 and 10. Section 8 provides that the Minister may direct that a specified ship shall not be registered at a port, save with the approval of the Minister. Section 9 says that the Minister may provide by regulations that the registry in the State under the Principal Act of a specified ship or any ship shall not be closed or transferred to a port outside the State, save with the approval of the Minister. That is the proposal in the Bill, a proposal empowering the Minister to authorise the transfer to a port outside the city of the share-owning in a ship. If it is an Irish ship, to what outside port is it contemplated that the transfer will be made? The transfer can be made to a British port only on the British assumption that we are British subjects. A Frenchman cannot register a ship in a British port nor can a German or an American register his shares in a British port, so that if the British accept the transfer of the ownership of shares under this Bill, it is on the assumption that in British law we are British subjects.

The Minister seems to me to be undertaking a responsibility which does not belong to him when he is proposing to give permission under Section 9 to transfer the ownership in shares to a port in a foreign State. I think he is copying here the provisions of Section 53 of the British Act of 1894, but these provisions provide for the transfer of registry from one port to another in the British Empire and not for the transfer of ownership from a British to a foreign port. I consider that the Bill requires examination, mainly in relation to the obligations which, under its provisions, will attach to our flag in foreign ports.

I commenced by saying that I was glad to see this Bill introduced and I am very satisfied, as I am sure the House will be satisfied, with the intentions of the Minister in relation to it; but I am suggesting that the Minister has overlooked certain matters and is undertaking something which was not contemplated when the Bill was being drafted, that, in other words, the Minister is misdirecting himself in submitting the Bill to us in this form. If the Minister assures me that that is not so, that something has happened of which I am not aware in relation to the transfer of shares in ships and that the British Act has been modified in some other respects of which I have no knowledge, I shall be very pleased, and shall withdraw the suggestions I have made; but, in the absence of that assurance, I can only interpret the legislation I am aware of to the House as I understand it.

The second important provision of this Bill relates to the implementation of certain international conventions. That again is a provision which I welcome very cordially and it is especially satisfactory that the Minister should have the power, as he will have under the Bill, to ratify these conventions, because the ratification of an international convention is of considerable importance from the point of view of the persons affected. It has this importance that, once a convention is ratified, it cannot be altered or denounced for a period of approximately 12 years. In other words, once a convention is ratified by this State, it is binding for a period of ten years and, at the end of that period, the State can give notice of its intention to denounce it, when there is still a year to go, so that there is a guarantee that any convention ratified under this Bill is valid for a minimum period of 12 years. That is very satisfactory from the point of view of seamen particularly and also from the point of view of shipowners who will be aware that the provisions of these conventions are to apply in relation to life at sea.

There is, however, another point I want to raise on that. A number of conventions other than those made at Seattle have been made from time to time in relation to seamen and shipping.

I have not looked up the various Orders made under our legislation in relation to these other conventions and, therefore, I am speaking in the dark. I did not have time, with the spate of legislation that we have had recently, to follow up the matter, but I draw attention to this fact, that we did have, so far as I remember, a convention some years ago relating to Seamen's Articles of Agreement. That may or may not have been ratified. There was also, if I remember correctly, a convention on the Protection of Immigrants at Sea. I think it was 1926. As a matter of fact, I have a distinct recollection of that convention because I was present when it was made. I do not remember if that was ratified. If not, I would ask the Minister why it has not been ratified and why the conventions other than those mentioned in the Schedule have not been ratified, or whether there is a difficulty in relation to ratification. If they have been ratified, that disposes of the matter.

I am not clear, however, as to the manner in which the Seattle Conventions are being disposed of in this Bill. It would appear to me that, to give the conventions validity, it would be necessary to reproduce the conventions as a schedule to the Bill. Several conventions are referred to here by a title which, so far as I know, has no particular validity at all. These conventions are not made in the same way as Acts of Parliament are made in this country or in the same way as regulations are made, which have numbers and which have certain records that enable one to identify them. These conventions are not intended to be coded in that manner. They are draft agreements made between the delegates of various States, which are taken home and are laid before Parliament by the Governments concerned and, if approved, are ratified. But they are ratified for the purpose of guiding the law of the State. It would appear to me that if we are going to accept the conventions and say that such and such a convention shall be part of our domestic legislation, the convention itself ought to be written in in its entirety as a schedule to the Bill.

However, that is a matter on which I do not profess to have any expert knowledge. I raise it so that the Minister may deal with the matter and clarify the position for us before we commit ourselves to this legislation.

There is no other point to which I would refer at this moment although there are one or two small points that I would like to refer to when we come to the Committee Stage. I wish to repeat what I said at the beginning, that I welcome very heartily the proposal of the Minister to introduce this legislation for the purpose of establishing the authority of the Irish flag in foreign ports and on Irish ships.

Sir John Keane

I am only asking for information. Even then, I think I will probably betray my ignorance of shipping law. I see the Minister takes power to refuse registration. There do not appear to be any conditions set out under which the Minister shall work. Could he give the House some general indication of the circumstances in which he would refuse and that would influence his action in the matter? There seems to be something very funny about shipping law, because I notice that when ships are doing rather dirty business, they are registered in all kinds of obscure American States. I do not know why that is necessary, but it does seem to be so. If there has to be illegal traffic or gun-running by ships it should not be done under the Irish flag. I do not know how that situation is brought about, but we do notice that some of the smaller South American States seem to carry the registration of ships engaged in rather dubious traffic.

I see that the Minister can make regulations regarding the transfer of a ship. Under what conditions would he, generally, work in such a matter? If I own a ship, or if I am associated with a body that owns ships, presumably I am able to sell to anybody who likes to buy. Or, is that not so? Is not it like any other article of property that you can sell in the open market to anybody who likes to buy? Perhaps that is a matter which is bound up with the peculiarities of shipping law, but I would like the Minister generally to give the House information on these two points.

Mr. Lemass

With regard to the main point raised by Senator Duffy, I stated that the merchant shipping legislation in force here is not in a satisfactory state, that it is necessary to get a comprehensive measure prepared and enacted before it will be satisfactory. That comprehensive measure is being prepared. It is a very difficult task to complete it.

So far as admission to the Irish register is concerned, there was an agreement made in 1931 that we would admit to the register here only vessels which were owned by Irish citizens or by citizens in Commonwealth countries. That agreement was never ratified in legislation, but it has determined the practice since. I think it is probable, having regard to our circumstances, that when we come to prepare the comprehensive legislation we will admit to our register ships owned by British citizens or owned by Irish citizens in partnership with British citizens. That is a matter which can be considered at the time.

It is necessary to keep in mind, however, that there is a number of ships on the British register owned by Irish citizens and that in any circumstance, rather more intimate relationship is bound to exist between ourselves and Great Britain in matters of this kind than between ourselves and other countries with which we have fewer commercial contacts. When a ship is on the Irish register it is entitled to the protection of the Irish flag. We are taking power in this Bill to refuse registration to a ship, even if it is so owned as to be entitled to admission to our register, because of the very circumstance which Senator Sir John Keane referred to — the desire to have some power to prevent the Irish flag being used as a cover for illegal activities or activities of an undesirable kind.

The corresponding provision contained in Section 9, to which Senator Duffy referred, which gives us power to refuse sanction for the transfer of the registry of a ship from an Irish port to a port outside Ireland, is a temporary arrangement which was brought into force at the beginning of the war and designed to prevent the transfer of ships from the Irish flag to other flags while the abnormal conditions of war-time prevailed, and it is still being preserved because of the existing shipping shortage. All countries have enacted similar legislation during the war and have that legislation still in force.

It is not possible at the present time to get a transfer of registry of a ship from another country to this without the consent of the Government concerned, which consent is not given at present.

The institution of control over the transfer of ownership of a ship or the mortgaging of a ship, even between our own nationals and between people here and people outside, again, is an emergency measure. Ordinarily, there is no barrier placed upon the sale of a vessel by one Irish citizen to another. There are certain difficulties in making distinctions between sales of that kind and sales to persons or corporations outside the country.

It is proposed that we should give effect to these powers by regulations. These regulations will be subject to variation when circumstances improve. Ordinarily, I expect that very few restrictions will be maintained upon the transfer of ownership of vessels — even in the case of owners outside the country who might want to effect it in the ordinary course of business — or on the sale of ships, or the replacement of ships for the better operation of business. At the present time the main purpose of Section 10 is to prevent the sale of vessels to foreign owners or the mortgaging of vessels to foreign owners. That power is rigorously exercised at the present time, except in the circumstances that I mentioned, where they have no commercial use, such as pleasure boats which were used here, but which have since fallen out of use, or where an owner decides that he wants to dispose of an absolete ship which is to be replaced by a more modern one. It is only in these circumstances that permission to sell outside the country is at present allowed. These restrictions will be modified and there will come a time when they will be only nominal.

I think Senator Duffy does not understand the position concerning International Labour Office Conventions. Section 12 does not confine the power of the Minister to the making of regulations to enforce the Seattle conventions, but is designed to give effect to other conventions, International Labour Office conventions also. Effect can be given to them by use of the Minister's powers under Section 12. International Labour Office Conventions are international agreements to which a State agrees to adhere. It is bound by contract with the International Labour Office not to ratify any convention until its law has been brought into conformity with it.

The procedure for the making of regulations in Section 12 will establish law and practice here in conformity with the International Labour Office Conventions or establish standards higher than those prescribed in the conventions. When that is done the conventions will be ratified and, in accordance with normal procedure, our delegations to the annual conference of the Industrial Labour Office will be required to show that our law is in conformity with the conventions and has been kept in conformity with them.

Merchant Shipping Bill, 1947—Second Stage.

Seanad Éireann debate -
Thursday, 11 Dec 1947