Seamen's Compensation Regulations

Division 8.—Payment and Investment of Moneys and Suspension of Payments.

Division 9.—Miscellaneous.

Part III.—Times for examination of seamen by a medical practitioner paid by employer.

C.9286.—Price 1s. 9d.

Part IV.—Duties and remuneration of medical referees under provisions of First and Second Schedules to the Act.

Division 1.—General.

Division 2.—References under Schedule I., paragraph (13).

Division 3.—References under Schedule I., paragraph (19).

Division 4.—References under Schedule II., paragraph (12).

Part V.—Miscellaneous.

Definitions.

3. In these Regulations, unless the contrary intention appears—

“Agreed Arbitrator” means a single arbitrator agreed on by the parties to settle any matter which, under the Seamen’s Compensation Act 1911, is to be settled by arbitration.

“Appointed Arbitrator” means a single arbitrator appointed by the judge.

“Committee” means a committee representative of an employer and his seaman, with power to settle matters under the Seamen’s Compensation Act 1911, in the case of employer and seamen:

“County Court” means a County Court, District Court, or Local Court of any State, or any Court exercising in any part of the Commonwealth a limited civil jurisdiction and presided over by a judge, or a police, stipendiary, or special magistrate:

“Dependants” means such of the members of the seaman’s family as were wholly or in part dependent upon the earnings of the seaman at the time of his death, or who would, but for the incapacity due to the accident, have been so dependent, and where the seaman—

(a) being the parent or grandparent of an illegitimate child, leaves the child so dependent upon his earnings, or

(b) being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings,

includes such an illegitimate child and parent or grandparent respectively:

“Employer” includes any body of persons corporate or unincorporate, and the legal personal representative of a deceased employer, and, where the services of a seaman are temporarily lent or let on hire to another person by the person with whom the seaman has entered into a contract of service or apprenticeship, the latter shall for the purposes of these Regulations, be deemed to continue to be the employer of the seaman whilst he is working for that other person:

“Judge” means a Judge of a County Court as defined in this Regulation.

“Medical Referee” means a medical practitioner appointed by the Minister to act as medical referee for the purposes of the Seamen’s Compensation Act 1911.

“Prescribed Authority” means the Deputy Director of Navigation for the State in which the proceedings are commenced, the Director of Navigation, the High Commissioner for the Commonwealth, or any officer of the High Commissioner’s staff thereto authorized in writing by him.

“Reference” means—

(a) in Regulations in Division 2 of Part IV., the; appointment of a medical referee by the prescribed authority, to give a certificate, in accordance with the provisions of paragraphs (13), (14), and (15) of the First Schedule to the Seamen’s Compensation Act 1911, as to the condition of the seaman and his fitness for employment, or as to whether or to what extent the incapacity is due to the accident;

(b) In Regulations in Division 3 of Part IV., the appointment of a medical referee by the prescribed authority to give a certificate, in accordance with the provisions of paragraph (19) of the First Schedule to the Seamen’s Compensation Act 1911, as to whether the incapacity resulting from the injury is likely to be of a permanent nature ; and

(c) In Regulations in Division 4 of Part IV., the appointment of a medical referee by a committee, arbitrator, or judge, to report on any matter material to any question arising in an arbitration under the Seamen’s Compensation Act 1911.

“Registrar” means a Registrar, Deputy Registrar, or Assistant Registrar of a County Court as defined by this Regulation.

“Seaman” includes master, officer, apprentice, pilot, or other person employed or engaged in any capacity on board a ship in connexion with the navigation or working of the ship.

“Ship” includes every vessel used in navigation not ordinarily propelled by oars.

“The Act” means the Seamen’s Compensation Act 1911, and if at any time that Act is amended, means that Act as so amended.

“The Schedule” means the Schedule to these Regulations.

“Vessel” means any ship, boat, or other description of vessel used for any purpose on the sea or in navigation.

Part II.—Application for and Procedure on Arbitration.

Division 1.—Applications for Arbitration.

Parties to arbitration.

Eng. r. 2 (1).

4. (1) When application is made for the settlement of any matter which under the Act is to be settled by arbitration the party making such application shall be called the “Applicant,” and, subject to these Regulations, all other persons whose presence at the arbitration may be necessary to enable the judge or arbitrator effectively and completely to adjudicate upon and settle all the questions involved shall be made parties to the application, and shall be called the “Respondents.”

Cf. Eng. r. 2 (2).

(2) In any case in which both, the principal contractor and a contractor with him are alleged to be liable to pay compensation under the Act, all persons may be joined as respondents against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.

Joinder of several applicants.

Cf. Eng. r. 3.

5. More persons than one may be joined as applicants in one arbitration in any case in which any right to any relief arising out of the same injury to the same seaman is alleged to exist, whether jointly, severally, or in the alternative, provided that the judge or arbitrator upon the application of any respondent, if it appear to him that the joinder may embarrass or delay the proceedings, may order separate hearings.

Applications by–dependants for settlement of compensation.

Eng. r. 4 (1).

6. (1) An application on behalf of the dependants of a deceased seaman for the settlement by arbitration of the amount payable as compensation to such dependants may be made by the legal personal representative (if any) of the deceased seaman on behalf of the dependants or by the dependants themselves, and in either case the particulars to be filed as hereinafter mentioned shall contain particulars as to the dependants on whose behalf the application is made:

Eng. r. 4 (2).

Provided that, if there be any conflict of interest between the dependants themselves or if any dependants neglect or refuse to join in an application, the application may be made by or on behalf of some only of the dependants, the other dependants in either case being named as respondents.

Eng. r. 4 (3).

(2) In the construction of this regulation the term “dependants” shall include persons who claim or may be entitled to claim to be dependants but as to whose claim to rank as dependants any question arises.

Application by dependants under Act, First Schedule, paragraph (8), where amount of compensation agreed upon or ascertained.

Eng. 5 (1).

7. (1) In any case in which the amount payable as compensation to the dependants of a deceased seaman has been agreed upon or ascertained, but any question arises as to who are dependants, or as to the amount payable to each dependant, an application for the settlement of such question by arbitration may be made either by the legal personal representative (if any) of the deceased seaman on behalf of the dependants or any of them, or by the dependants or any of them, against the other dependants, and the persons claiming or who may be entitled to claim to be dependants, but as to whose claim to rank as such a question arises; or such application may be made by the persons claiming to be dependants, but as to whose claim to rank as such a question arises, or any of them, against the legal personal representative

(if any) of the deceased seaman and the dependants, and such of the persons claiming or who may be entitled to claim to be dependants as are not applicants.

Eng. r. 5 (2).

(2) In any such case, if the employer has paid the agreed or ascertained amount of compensation, it shall not be necessary to make him a respondent, but if the compensation or any part therof is still in his hands he shall be made a respondent.

Eng. r. 5 (3).

(3) The employer, if made a respondent, may pay the amount of compensation in his hands into the County Court in the place in which the proceedings have been commenced, to be dealt with as the judge or arbitrator directs, and thereupon further proceedings against him shall be stayed.

Application by prescribed authority for arbitration.

7a. (1) Where any sum has been paid by an employer to the prescribed authority as the compensation payable to the dependants of a deceased seaman, all questions arising under the Act in respect of such compensation may be determined by arbitration before a Judge under this regulation.

(2) The application for arbitration shall be made and signed by the prescribed authority and shall be filed with the Registrar.

(3) The application shall be intituled in the matter of the Act and in the matter of the arbitration and shall state concisely the questions to be determined.

(4) Particulars shall be appended or annexed to the application containing—

(a) a concise statement of the circumstances under which the application is made;

(b) the names and addresses of the employer and of all persons who appear to the prescribed authority to be dependants of the seaman;

(c) the amount paid to the prescribed authority as compensation;

(d) the amounts (if any) paid by the prescribed authority as advances in payment or part payment of compensation to or for the benefit of persons appearing to be dependants of the seaman; and

(e) any other matters deemed by the prescribed authority relevant to the application.

(5) After the application has been filed with the Registrar, the Judge may on the request of the prescribed authority—

(a) direct upon whom, in what manner, and at what times notice and copies of the application and particulars shall be served;

(b) appoint the place of hearing and the day and hour for proceeding with the arbitration; and

(c) give directions as to any other matter relative to the application.

(6) The day for proceeding shall be so fixed as to allow for documents being served at least twenty clear days before the day fixed.

(7) The notice of the application shall be signed by the Registrar and shall state—

(a) the place at which and the day on and hour at which the arbitration will be proceeded with;

(b) that if the person to whom the notice is addressed does not attend in person or by his solicitor such order will be made and proceedings taken as the Judge thinks just and expedient; and

(c) any other matter directed by the Judge to be stated therein.

(8) The Judge shall in his award have regard to all amounts paid by the prescribed authority as advances in payment or part payment of compensation to or for the benefit of dependants of the seaman and shall direct against whose share and in what proportion such amounts shall be debited.

(9) No order for costs shall be made against the prescribed authority in any proceeding under this regulation.

(10) Subject to this regulation the provisions of this Part of these Regulations shall apply as far as applicable to proceedings under this regulation.

Parties to arbitration as to sum payable for medical attendance and burial. Act, First Schedule, par. (1) (a) (iii).

Eng. r. 6.

8. (1) An application for the settlement by arbitration of the sum payable in respect of medical attendance on and the burial of a deceased seaman, who leaves no dependants, shall be made by the legal personal representative (if any) of the deceased seaman.

(2) If there is no legal personal representative, the application may be made by any person, to whom any such expenses are due, and any other person known to the applicant as a person to whom any such expenses are due shall be joined in the application, either as an applicant or respondent.

Apportionment of such sum.

(3) In any case in which, application is made for the settlement by arbitration of the amount payable in respect of medical attendance on and the burial of a deceased seaman, the amount awarded, if insufficient for the payment of the expenses in full, shall be apportioned between the persons to whom the expenses are due in such manner as the judge or arbitrator directs.

Rules of Court to apply to arbitration proceedings.

Eng. r. 7.

9. The provisions of the Rules for the time being of the County Courts of the places in which the proceedings have been commenced as to parties suing or defending on behalf of other persons having the same interest, and the provisions of those Rules as to persons under disability and partners suing and being sued shall, with the necessary modifications, apply to proceedings by way of arbitration under the Act.

Requests for arbitration.

Eng. r. 8.

10. (1) Where any question has arisen and has not been settled by agreement, an application for the settlement of the matter by arbitration shall be made by the applicant filing with the Registrar a request for arbitration, intituled in the matter of the Act and in the matter of the arbitration, which request shall state concisely the subject-matter of the claim.

Particulars.

(2) Particulars shall be appended or annexed to the request containing—

(a) A concise statement of the circumstances under which the application is made, and the relief or order which the applicant claims:

(b) The date of service of notice of the accident on the employer, or, if such notice has not been served, the reason for such omission:

(c) In cases of a seaman lost with his ship the date on which the ship was lost or is deemed to have been lost:

(d) The full names and addresses of the respondents and of the applicant and of his solicitor, if the proceedings are commenced through a solicitor.

Forms of request and particulars.

Eng. r. 9,

11. (1) The request and particulars may be in accordance with such one of the forms in the Schedule as shall be applicable to the case, with such modifications as the nature of the case requires.

(2) A copy of the notice of the accident shall be appended or annexed to the particulars, and if a copy of such notice is not so appended or annexed the reason for the omission shall be stated in the particulars.

Application by employer.

Eng. r. 10

12. (1) Where an employer on whom a claim for compensation has been made desires to make an application for the settlement of any matter by arbitration, he shall file with the Registrar a request for arbitration in accordance with regulation 10, to which the seaman or the legal personal representative (if any) and the persons claiming or who may be entitled to claim to be dependants of a deceased seaman, or the other person (as the case may be) on whose behalf the claim was made, shall be respondents.

(2) Particulars shall be appended or annexed to the request containing—

(a) a concise statement of the circumstances under which the application is made;

(b) a statement whether the applicant admits his liability to pay compensation, or denies such liability, wholly or partially, with (in the latter case) a statement of the grounds on and extent to which he denies liability;

(c) a statement of the matters which the applicant desires to have settled by arbitration; and

(d) the full names and addresses of the respondents and of the applicant, and of his solicitor, if the proceedings are commenced by a solicitor.

Copies for judge or magistrate and for respondents.

Eng. r. 11.

13. The applicant shall deliver to the Registrar with the request and particulars a copy thereof for the judge or arbitrator, a copy for each respondent to be served, and a copy for the prescribed authority.

Where applicant illiterate.

Eng. r. 12.

14. Where the applicant is illiterate and unable to furnish the required information in writing, the request and particulars and copies shall be filled up by the Registrar or his clerk.

Division 2.—Proceedings in Arbitration before Judge.

Fixing day and place for arbitration.

Eng. r. 14.

15. (1) On the filing of a request for arbitration, the Registrar shall transmit a copy of the request and particulars to the Judge, who shall as soon as conveniently may be appoint the place of hearing and the day and hour for proceeding with the arbitration.

(2) The day shall be so fixed as to allow the copies and the request and particulars to be served on the respondents at least twenty clear days before the day so fixed.

Notice to parties.

Eng. r. 15.

16. (1) On the day for proceeding with an arbitration being fixed, the Registrar shall give or send by post notice in writing to the applicant stating the place at which and the day and hour when the arbitration will be proceeded with, and shall issue the copies and the request and particulars for service on the respondents, and on the prescribed authority, together with notices stating the place at which and the day and hour on and at which the arbitration will be proceeded with, and that if the respondents do not attend in person or by their solicitors such order will be made and proceedings taken as the Judge thinks just and expedient.

(2) Where the request is filed by an employer, the notice to be served on the respondents shall be modified by the omission of the words therein relating to denial or admission of liability or compensation.

Service on respondents.

Eng. r. 16.

17. (1) The copies and notices mentioned in the last preceding regulation shall be served on the respondents and on the prescribed authority at least twenty clear days before the fixed for proceeding with the arbitration.

(2) The copies and notices mentioned in the last preceding Regulation may be served—

(a) by a bailiff of a court;

or, at the request of the applicant or his solicitor,

(b) by the applicant, or some clerk or servant in his permanent and exclusive employ; or

(c) by the applicant’s solicitor, or a solicitor acting as agent for such solicitor, or some person in the employ of either of them, or some person employed by either of them to serve such copies and notices.

(3) Service may be effected by delivering the copy and notice to the person on whom it is to be served, or by sending it by post in a registered letter addressed to him at his residence or place of business in accordance with the provisions of sub-sections (3) (4) and (5) of section 6 of the Act.

Where service effected otherwise than by bailiff.

(4) Where service is effected otherwise than by a bailiff, a copy of the document served, with the date and mode of service endorsed thereon shall, within three clear days next after the date of service, or such further time as may be allowed by the Registrar of the court issuing such document, be delivered or transmitted to the Registrar by the applicant. The applicant shall also (unless the respondent files an answer) after the time limited for filing an answer, deliver or

transmit to the Registrar an affidavit of the service of such according to Form 10 in the Schedule with such variations alterations and additions as the circumstances of the case require.

Service by post.

(5) Where a document is served by post it shall, unless the contrary be proved, be deemed to have been served at the time when the letter containing the same would have been delivered in the ordinary course of post, and in proving the service of the document it shall be sufficient to prove that the same was properly addressed and registered.

(6) Subject to the provisions of section 6 of the Act as to the service of the notice of accident and the claim for compensation, any document, notice, or proceeding to be served on the owners or charterers of a ship shall be deemed to be sufficiently served if served on the managing owner or charterer or the manager for the time being of the ship, or (except where the master is claiming compensation) on the master of the ship.

Stay of proceedings.

18. Where several requests for arbitration are filed by different applicants against the same respondent in the same Court in respect of matters arising out of the same circumstances, the respondent may, on filing an undertaking to be bound, so far as his liability to pay compensation is concerned, by the award in such one of the arbitrations as may be selected by the Judge, apply to the Judge under the Rules of the County Court relating to a stay of proceedings for an order to stay proceedings in the arbitration other than the one so selected until an award is made in the selected arbitration; and the Rules relating to a stay of proceedings shall, with the necessary modifications, apply accordingly.

Answer by respondent.

Eng. r. 18.

19. (1) If any respondent desires to disclaim any interest in the subject-matter of an arbitration, or considers that the applicant’s particulars are in any respect inaccurate or incomplete, or desires to bring any fact or document to the notice of the Judge, or intends to rely on the fact that notice of the accident, or of death, disablement, or suspension, was not given as required by the Act, or that the claim for compensation was not made within the time limited by the Act, or intends to deny (wholly or partially) his liability to pay compensation under the Act, he shall, ten clear days at least before the day fixed for proceeding with the arbitration, file with the Registrar an answer, stating his name and address, and the name and address of his solicitor (if any), and stating that he disclaims any interest in the subject-matter of the arbitration, or stating in what respect the applicant’s particulars are inaccurate or incomplete, or stating concisely any fact or document which he desires to bring to the notice of the Judge, or on which he intends to rely, or the grounds on and extent to which he denies liability.

(2) The respondent shall with the answer file copies thereof for the applicant and the Judge, and one copy for each of the other respondents, and the Registrar shall within twenty-four hours after receiving the copies transmit the same by post to the applicant and the other respondents respectively, and may post or deliver a copy to the Judge.

(3) Subject to any answer so filed, the applicant’s particulars and, in the case of a claim for compensation, the liability to pay compensation under the Act, shall be taken to be admitted:

Provided that in case of non-compliance with this regulation, and of the applicant not consenting at the arbitration to permit a respondent to avail himself of any matter of which he should, pursuant to this regulation, have, given notice by filing an answer, the Judge may, on such terms as he thinks fit, either proceed with the arbitration and allow the respondent to avail himself of such matter, or adjourn the arbitration to enable the respondent to file such answer.

(4) The provisions of this regulation shall, with the necessary modifications, apply to a case in which a request for arbitration is filed by an employer; but a respondent who fails to file an answer shall not be taken to admit the truth of any statement in the applicant’s particulars in which he denies, wholly or partially, his liability to pay compensation.

Submission to award or payment into court of respondent.

Eng. r. 19.

20. (1) Where a respondent from whom compensation is claimed admits liability, he may at any time before the day fixed for proceeding with the arbitration—

(a) where the application is made by an injured seaman—file with the Registrar a notice that the respondent submits to an award for the payment of a weekly sum to be specified in the notice; or

(b) where the application is made on behalf of the dependants of the deceased seaman, or for the settlement of the sum payable in respect of medical attendance on and the burial of a deceased seaman who leaves no dependants—pay into the County Court in the place in which proceedings have been commenced such sum of money as the respondent considers sufficient to cover his liability in the circumstances of the case.

(2) The Registrar shall within twenty-four hours from the time of any notice filed or payment made, pursuant to the last preceding sub-regulation, send notice thereof (with, where notice is filed, a copy of the notice) to the applicant and to the other respondents (if any).

Acceptance of weekly payment offered.

(3) If the applicant is a seaman, and elects to accept in satisfaction of his claim the weekly payment specified in the respondent’s notice, he shall send to the Registrar and to the respondent by post, or leave at the Registrar’s office and at the residence or place of business of the respondent, a written notice according to Form 15 in the Schedule stating such acceptance, within such reasonable time before the day fixed for proceeding with the arbitration as the time of filing of notice of submission by the respondent has permitted.

Acceptance of sum paid into court.

(4) If the application for arbitration is made on behalf of the dependants of the deceased seaman, or for the settlement of the sum payable in respect of medical attendance and burial as aforesaid, and the applicant is willing to accept the sum paid into Court in satisfaction of the compensation payable to the dependants, or in respect of such medical attendance and burial (as the case may be), he shall send to the Registrar and to the respondent by post, or leave at the Registrar’s office, and at the residence or place of business of the respondent, a written notice of such willingness; according to Form 15 in the Schedule within such reasonable time before the day fixed for proceeding with the arbitration as the time of payment into Court by the respondent has permitted.

If there be any other respondents, the applicant shall in like manner give notice of such willingness to such respondents; and if any of such respondents are willing to accept the sum paid into Court in satisfaction of the compensation as aforesaid they shall in like manner give notice of their willingness to the Registrar and to the applicant and other respondents.

Procedure if weekly payment offered or sum paid in is accepted.

(5) If the applicant is a seaman and elects to accept in satisfaction of his claim the weekly payment submitted by the respondent, or if in any other case the applicant and all the respondents give notice of their willingness to accept the sum paid into Court, the following provisions shall apply:—

(a) Where the respondent submits to an award for the payment of a weekly sum, the Judge may, on an application made to him forthwith, make an award directing payment of the weekly sum accordingly.

(b) Where the respondent has paid money into Court, further proceedings against such respondent shall be stayed, except as hereinafter mentioned; and

(i) if the applicant and the other respondents agree as to the apportionment and application of the sum, the Judge may on application made to him on behalf of or with the consent of all such parties, forthwith make an award for the apportionment and application;

(ii) in any other case the arbitration may proceed as between the applicant and the other respondents

Costs payable by respondent.

(c) The Judge may, in his discretion, by his award order the respondent filing notice of submission to an award or paying money into Court to pay such costs as the applicant and the other respondents, or any of them, may have properly incurred before the receipt of notice of submission to an award or payment into Court, and his or their costs properly incurred in relation to notice of submission to an award or payment into Court and of the notice of acceptance, including, if the Judge on consideration of the facts of the case shall so order, any items which might have been allowed by order of the Judge at the hearing of the arbitration.

(d) If the applicant or any respondent intends to apply for costs, he shall give notice of his intention in his notice of acceptance according to Form 15 in the Schedule; or where the time of filing notice of submission to an award or the time of payment into Court by a respondent does not permit of notice on acceptance being given, the applicant or any respondent may apply for costs without giving notice.

Acceptance at any time before arbitration opened.

(6) Where any party has not given notice of acceptance in accordance with this regulation, he may nevertheless accept the weekly payments which the respondent has submitted to pay, or the sum paid into Court, at any time before the arbitration is called on and opened subject to the payment of any costs which may have been reasonably

incurred by the respondent since the date of filing notice of submission or the date of payment into Court, and which may be allowed by the Judge, and the Judge may order any costs so allowed to be paid by the parties so accepting, and may order the costs to be set off against any costs payable to such party, or to be deducted from any weekly payments or compensation awarded to such party.

Procedure and costs if weekly sum offered or sum paid in is not acceptance.

(7) In default of notice of acceptance by the applicant and all the respondents, the arbitration may proceed, but if no greater weekly payment or compensation is awarded than that which the respondent has submitted to pay or has paid into Court, the respondent shall not be liable to pay any further costs than such as he might have been ordered to pay if the weekly payment offered or sum paid into Court had been accepted, and the Judge may order any costs incurred by the respondent after notice of submission to an award or payment into Court to be paid by any party who has not given notice of acceptance of such weekly payment or sum, and may order the costs to be set off against any costs payable to such party, or to be deducted from any weekly payment or compensation awarded to such party. The Judge may also order any costs incurred after notice of payment into Court by any party who has given notice of acceptance to be paid by any other party who has not given such notice, and to be deducted from any compensation awarded to the last-mentioned party.

Submission to award or payment into court where employer admits liability.

(8) The provisions of this regulation shall, with the necessary modifications, apply to a case in which an employer who has filed a request for arbitration admits liability to pay compensation.

Payment into court in case of injury to seaman.

(9) Where in the case of an injured seaman an employer admits liability, he may, at any time before the time fixed for proceeding with the arbitration, instead of filing a notice that he submits to an award for the payment of a weekly sum, file a notice that he submits to an award for the payment of a lump sum to be specified in the notice which he considers to be sufficient to cover his liability in the circumstances of the case, and may thereupon pay the sum into the County Court in which proceedings have been commenced, and the provisions of this regulation shall, with the necessary modifications, apply to a case in which an employer files a notice and pays money into Court under this sub-regulation.

Submission to award or payment into court with denial of liability.

(10) An employer who denies liability may file a notice of submission to an award or pay money into Court in accordance with this regulation, accompanied by a notice stating his name and address, and further stating that, notwithstanding such submission or payment, he denies his liability, together with as many copies of the notice as there are parties to whom notice of the submission or payment is to be sent, and the provisions of this regulation shall, with the necessary modification, apply to a case in which an employer files a notice of submission to an award or pays money into Court under this sub-regulation, and copy of the notice denying liability shall be sent by the Registrar every person to whom notice of submission to an award or payment into Court has to be sent.

Notice of claim to indemnity under section 7.

Eng. r. 20.

21. Where a respondent claims to be entitled under section 7 of the Act to indemnity against any person not a party to the arbitration, he shall ten clear days at least before the day fixed for proceeding with the arbitration, file with the Registrar a notice of his claim and serve

a copy of the same, together with a copy of the applicant’s request and particulars and of the notices served on the respondent under regulations 16 and 17, upon the person against whom such claim is made.

Appearance by third party.

Eng. r. 21.

22. If any person served with a notice under the last preceding regulation (hereinafter called the “Third Party”) desires to dispute the applicant’s claim in the arbitration as against the respondent on whose behalf the notice has been given, or his own liability to such respondent, he must appear before the Judge on the day fixed for proceeding with the arbitration or on any day to which he may have received notice from the Registrar that the arbitration has been adjourned or postponed, and in default of his so doing he shall be deemed to admit the validity of any award made against such respondent as to any matter which the Judge has jurisdiction to decide in the arbitration as between the applicant and the respondent, whether the award is made by consent or otherwise, and his own liability to indemnify the respondent to the extent claimed in the notice served on him by the respondent.

Provided that if it appears to the Judge before or at the arbitration that the notice of claim has not been served on the third party in time to enable him to appear on the day hereinbefore mentioned, or that for any other sufficient cause the third party is unable to appear on that day, the Judge may adjourn the proceedings in the arbitration on such terms, as to costs or otherwise, as are just.

Proceedings in default of appearance by third party.

Eng. r. 22.

23. If the third party fails to appear on the day mentioned in the last preceding regulation, or, if the proceedings are adjourned under that regulation, on the day to which the proceedings are adjourned, then if the arbitration results in an award in favour of the applicant, or the arbitration is finally decided in favour of the applicant otherwise than by an award, the Judge may on the application of the respondent make such award as the nature of the case may require in favour of the respondent against the third party; but execution thereon shall not issue without leave of the Judge until after satisfaction by the respondent of the award or the amount recovered against him:

Provided that the Judge may set aside or vary any award made by him against the third party under this regulation upon such terms as are just.

Application for direction may be given.

Eng. r. 23.

24. The third party or the respondent may apply before or at the arbitration to the Judge for directions: and the Judge upon the hearing of the application may, if satisfied that there is a question proper to be determined as to the liability of the third party to make the indemnity claimed, in whole or in part, order the question of such liability as between the third party and the respondent giving the notice to be determined at or after the arbitration; and if not so satisfied may make such award as the nature of the case requires in favour of the respondent giving the notice against the third party; or the Judge may, if it appears desirable so to do, give the third party leave to resist the claim of the applicant against the respondent upon such terms as are just, or to appear at the arbitration and take such part therein as is just, and generally may give such directions as he thinks proper for having the question most conveniently determined, and as to the mode or extent in or to which the third party shall be bound or made liable by the award in the arbitration.

Eng. r. 21.

25. The Judge may decide all questions of costs as between a third party and the other parties to the arbitration, and may order any one or more to pay the costs of any other or others, or give such direction as to costs as the justice of the case requires.

Notice of claim to indemnity under section 10 or otherwise than under section 7.

Eng. r. 25.

26. (1) Where the respondent claims that if compensation is recovered against him he will be entitled under section 10 of the Act, or otherwise than under section 7 to indemnity against any person not a party to the arbitration, he shall file and serve a notice of his claim in accordance with regulation 21.

If person served makes default he is to be deemed to admit validity of award against respondent.

(2) If any person served with a notice under the last preceding sub-regulation (hereinafter called the “Third Party”) desires to dispute the applicant’s claim in the arbitration as against the respondent on whose behalf the notice has been given, he must appear before the Judge on the day fixed for proceeding with the arbitration, or on any day to which he may have received notice from the Registrar that the arbitration has been adjourned or postponed; and in default of his so doing he shall be deemed to admit the validity of any award made against such respondent as to any matter which the arbitrator has jurisdiction to decide in the arbitration as between the applicant and the respondent, whether the award is made by consent or otherwise:

Where notice not served in due time.

Provided that if it appears to the Judge before or at the arbitration that the notice of claim has not been served on the third party in time to enable him to appear on the day hereinbefore mentioned, or that for any other sufficient cause the third party is unable to appear on such day, the Judge may adjourn the proceedings in the arbitration on such terms, as to costs or otherwise, as are just.

Application to judge for directions as to conduct of arbitration.

(3) The third party or the respondent may apply, before or at the arbitration to the Judge for directions, and the Judge upon the hearing of the application, may, if it appears desirable so to do, give the third party leave to resist the claim of the applicant against the respondent upon such terms as are just, or to appear at the arbitration and take such part therein as is just, and generally may give such directions as he thinks proper.

(4) If the third party obtains leave to resist the claim of the applicant against the respondent, the provisions of regulation 25 as to costs shall apply.

Judge how far empowered to decide questions as to liability of third party.

(5) Nothing in this regulation shall empower the Judge to decide (otherwise than by consent) any question as to the liability of the third party to indemnify the respondent, or to make any award in favour of the respondent against the third party, or to make any further or other order than that the third party shall not be entitled in any future proceedings between the respondent and such third party to dispute the validity of the award as to any matter which the Judge has jurisdiction to decide in the arbitration as between the applicant and the respondent:

Provided that with the consent of the respondent and the third party—

(a) if the arbitration results in an award in favour of the applicant, or is finally decided in favour of the applicant otherwise than by an award, and the third party admits his liability to indemnify the respondent, the Judge may, on application, made to him at or after the hearing of the arbitration or the final decision thereof, make such award

as the nature of the case requires in favour of the respondent against the third party; but execution thereon shall not issue without leave of the Judge until after satisfaction by the respondent of the award against him or the amount recovered against him; or

(b) the judge may, on an application for directions, order any question, as to the liability of the third party to make the indemnity claimed, to be settled, as between the respondent and the third party by arbitration after the arbitration between the applicant and the respondent, and may on the subsequent arbitration make such award as the nature of the case requires in favour of either party against the other.

(c) the Judge may decide all questions of costs as between the respondent and the third party and may order either of the parties to pay the costs of the other (including any costs payable by such party to any other party to the arbitration) or give such directions as to such costs as the justice of the case requires.

Third party procedure where employer is applicant.

Eng. r. 26.

27. The provisions of regulations 22 to 26 shall, with the necessary modifications, apply to a case in which an employer who has filed a request for arbitration claims to be entitled to indemnity against any person not a party to the arbitration.

Claim to indemnity as between respondents.

Eng. r. 27.

28. (1) Where a respondent claims to be entitled to indemnity against any other respondent, a like notice shall be issued and the like procedure shall thereupon be adopted for the determination of questions between the respondents as might be issued and adopted against such other respondent if such last-mentioned respondent were a third party.

(2) Nothing herein contained shall prejudice the rights of the applicant against any respondent.

Abridgment of time for service, answer, &c.

Eng. R. 28,

29. The Judge may, for good cause shown, enlarge or abridge the time fixed by these Regulations for service of a request for arbitration on any respondent, or the time for filing an answer, or serving a third party notice, or for taking any step, or filing any document, or giving any notice in any matter; and, if an order is made to that effect, a copy of the order shall be annexed to and served with the notice to be served on the respondent or applicant as the case may be.

Procedure on arbitration.

Eng. r. 29.

30. Subject to the special provisions of these Regulations, the procedure in an arbitration shall be the same as the procedure, including the power to grant adjournments, in an action commenced in the County Court by plaint and summons in the ordinary way, and shall be determined by the Judge without a jury in so far as such procedure is applicable to proceedings by way of arbitration; and the statutory provisions and rules for the time being in force relating to actions shall, with the necessary modifications, apply to the arbitration accordingly; and in the application of such provisions and rules the applicant’s request for arbitration shall be deemed to be a summons with particulars annexed, the day fixed for proceeding with the arbitration shall be deemed to be the return day, and the applicant and respondents shall be deemed to be plaintiff and defendants respectively:

Provided that the burden of proof of any facts which are not admitted shall be the same, whoever the party may be by whom the request for arbitration is filed.

Award.

Eng. r. 30.

31. (1) When the Judge has drawn up, signed, and made his award, he shall cause it to be filed at the office of the Registrar, who shall prepare copies sufficient for service on all persons affected thereby, and forthwith send one copy of the same by post or otherwise to each of such persons.

(2) The Judge shall have power at any time to correct any clerical mistake or error or any admitted error or mistake in the award arising from any accidental slip or omission.

(3) The award shall be enforceable in the same manner as a judgment or order of the Court.

Division 3.—Proceedings before Arbitrator appointed by County Court.

Appointment of arbitrator.

Cf, Eng. r. 31.

32. With respect to the appointment of an arbitrator by a County Court, the following provisions shall apply:—

(a) On an application being made for the settlement by arbitration of any matter, a Judge of the County Court may (if, from the state of the business of the Court, or for any other reason, a Judge is unable to settle the matter within a reasonable time) appoint, by writing under his hand, and filed in the Court, an arbitrator to settle the matter.

(b) In case of the death or refusal or inability to act of an arbitrator appointed under this regulation, the Judge may, on the application of any party, appoint a new arbitrator in accordance with this regulation.

Fixing day for arbitration.

Cf. Eng. r. 32.

33. (1) Where any matter is to be settled by an arbitrator, the Judge shall return the copy of the request for arbitration to the Registrar, with the appointment of the arbitrator, to be transmitted to the arbitrator.

(2) The Registrar shall transmit the copy of the request and copy of the appointment to the arbitrator, who shall, as soon as conveniently may be, appoint a day and hour for proceeding with the arbitration, in accordance with regulation 15.

Procedure before arbitrator.

Cf. Eng. 33

34. On the day for proceeding with an arbitration being fixed, the Registrar shall proceed according to regulation 16, and thenceforward the arbitration shall proceed in the same manner as an arbitration before a Judge, and these Regulations shall apply and the officers of the Court shall act accordingly, with the substitution of the arbitrator for a Judge:

Provided that—

(a) In any case coming within the provisions of paragraph (a) or paragraph (b) (i) of sub-regulation (5) of regulation 20, or in any other case in which, after an arbitrator has been appointed, but before the day fixed for proceeding with the arbitration, the parties agree upon an award, a Judge may, on application made to him in or out of Court on behalf of or with the consent of all parties, settle the

matter himself; and thereupon the functions of the arbitrator as to the matter shall cease, and the Registrar shall forthwith inform him that the matter has been settled; and

(b) Any application for the enforcement of or for staying proceedings on an award, which would in the case of an award made by the Judge be required to be made to the Judge shall, in the case of an award made by an arbitrator, be in like manner made to the Judge.

Submission of question of law by committee or arbitrator to judge.

Cf. Eng. r. 84.

35. (1) Where a committee or an arbitrator (whether agreed on by the parties or appointed by a County Court) submits any question of law for the decision of a County Court under paragraph (3) of the Second Schedule to the Act, the submission shall be in the form of a special case.

(2) The case shall be intituled in the matter of the Act and of the arbitration, and shall be divided into paragraphs numbered consecutively, and shall state concisely such facts and documents as are necessary to enable the Court to decide the questions of law raised thereby. Upon the hearing of the case the Court and the parties shall be at liberty to refer to the whole contents of the documents, and the Court shall be at liberty to draw from the facts and documents stated in the case any inference, whether of fact or of law, which might have been drawn therefrom if proved at the hearing of an arbitration.

(3) The case shall be signed by the chairman and secretary of the committee or by the arbitrator, and sent to the Registrar, and the Court shall, as soon as conveniently may be, appoint a day and hour for hearing the case, and instruct the Registrar to give notice forthwith to the parties.

(4) The day shall be so fixed as to allow notice to be given ten days at least before the day fixed for the hearing, unless the Court shall, with the consent of all parties, fix an earlier day.

(5) The Registrar shall, on the application and at the cost of any party, furnish him with a copy of the case.

(6) On the hearing of the case the Court may, after deciding the question submitted, remit the case with a memorandum of its decision to the committee or arbitrator, for them or him to proceed thereon in accordance with the decision; or if the decision of the Court on the question submitted disposes of the whole matter, the Court may make an award in the arbitration in accordance with the decision.

(7) The Court may remit the case to the committee or arbitrator for re-statement or further statement.

(8) The Court shall have the same power over the costs of a special case as a Judge has over the costs of an arbitration, or may direct that the costs shall be dealt, with as costs attending the arbitration; and the provisions of the Act and these Regulations as to costs shall apply accordingly.

Appeal to High Court or Supreme Court from decision of County Court;

36. (1) An appeal under paragraph (3) of the Second Schedule to the Act may be instituted by notice of appeal in accordance with this regulation.

C. 9286.—2

(2) The party appealing shall, within twenty-one days after the decision or order appealed against is made, serve the notice of appeal on the opposite party, and shall file a copy of the notice of appeal in the County Court and in the Registry of the High Court in the State or the Supreme Court of the State, as the case requires.

(3) The notice of appeal must state the grounds of appeal, and must set out the Court to which the appeal is made.

(4) The Registrar or other proper officer of the County Court, in which the notice of appeal is filed shall, forthwith after receiving it, send to the Registrar or other proper officer of the Court to which the appeal is made, all such proceedings in the County Court as are necessary to the hearing of the appeal.

Application of Rules of High Court or Supreme Court.

37. The Rules of the High Court or the Rules of the Supreme Court, as the case requires, shall, subject to these Regulations, apply to appeals under paragraph (3) of the Second Schedule to the Act, as far as such Rules are applicable.

Division 4.—General Provisions as to Arbitration.

Appearance of parties.

Eng. r. 35.

38. (1) A party to any arbitration may appear—

(a) in person;

(b) by solicitor;

(c) by counsel;

or by leave of the Judge or arbitrator, a party may appear—

(d) by a member of his family;

(e) by a person in the permanent and exclusive employment of the party;

(f) in the case of a company or corporation, by any director of the company or corporation, or by the secretary or any other officer or any person in the permanent and exclusive employment of the company or corporation;

(g) by any officer or member of any society or other body of persons of which the party is a member or with which he is connected, or, where death results from the injury, by any officer or member of any society or other body of persons of which the deceased seaman was a member or with which he was connected; or

(h) under special circumstances, by any other person.

(2) No person other than a solicitor who appears or acts on behalf of any party in any arbitration under the Act shall be entitled to have or recover any fee or reward for so appearing or acting, other than such travelling expenses, and (in the case of a seaman or a member of his family) allowance for time (if any) as is allowed by the Judge or arbitrator:

Provided that nothing in these Regulations shall affect the right of counsel to appear or act in any arbitration, or the right of any solicitor to recover costs in respect of his employment of counsel to appear or act as aforesaid.

(3) The prescribed authority may appear and be heard in any arbitration by solicitor, counsel, or any other person.

Note to be taken of questions of law raised, &c, and copy furnished.

Eng. r. 36.

39. At the hearing of any arbitration the Judge shall make a note of any question of law raised, and of the facts in evidence in relation thereto and of his decision thereon and of his decision in the arbitration, and he shall, at the expense of any party to such arbitration, furnish a copy of the note so taken or allow a copy of the same to be taken by or on behalf of such party, and shall sign such a copy, whether a notice of motion by way of appeal has been served or not.

Claims for compensation.

Eng. r. 38.

40. (1) In the case of the death of a seaman the claim for compensation shall state the date on which news of the death was received by the claimant.

(2) The claim for compensation on behalf of the dependants of a seaman lost with his ship shall state the date on which the ship was lost or is deemed to have been lost.

Description of owners or charterers in documents and proceedings.

41. In any document, notice, or proceeding it shall be sufficient to describe the owners or the charterers of the ship as “the owners (or ‘charterers’) of the ship, ,” and the provisions of the County Court Rules for the time being of the place where the proceedings have been commenced as to the disclosure of the names of partners shall with the necessary modifications apply to the disclosure of the names of the owners or charterers.

Division. 5.—Detention of Ships.

Detention of ships.

Cf. Eng. r. 39.

42. (1) An application for an order for the detention of a ship under section 13 of the Act shall be made in accordance with this regulation.

(2) The application may (subject to the provisions of sub-regulation (9) of this regulation) be made ex parte either in or out of Court, according to Form 19 in the Schedule, and shall be supported by affidavit or other evidence showing, to the satisfaction of the Judge, the grounds on which the application is made.

(3) The Judge may, before granting the application, require the applicant to give or procure an undertaking, to the satisfaction of the Judge, to abide by any order as to damages and costs which may be thereafter made, in case any person affected by the order for detention shall sustain any damages by reason of the order which the applicant ought to pay.

(4) An order for detention shall specify the amount for which security shall be given, and may be in accordance with Form 21 in the Schedule, and shall be issued in triplicate; one copy shall be delivered to the applicant, and the other two copies to the officer named by the Judge; and one of the last-mentioned copies shall be delivered by the officer to the person who is at the time of the execution of the order apparently in charge of the ship, or, if there is no person apparently in charge, shall be affixed on the main mast or on the single mast of the ship; and the other copy shall be retained by the officer.

(5) The Judge may at any time on good cause shown rescind any order for detention made by him.

(6) The provisions of any Act regulating the procedure of, and the rules of, the Court in which the proceedings have been commenced as to security shall, with the necessary modifications, apply to the giving of security under this regulation; and the approval by the Judge of any security shall be signified in writing signed by him.

(7) Where security is given by bond, the bond may be in accordance with Form 22 in the Schedule.

(8) If the Judge rescinds any order for detention, or is satisfied that satisfaction has been made, or when security has been given and approved, or in any other case if the applicant so requires, the Judge shall deliver, to the party applying for the same, an order according to Form 23 in the Schedule, directed to the officer named in the order for detention, authorizing and directing him, upon payment of all costs, charges, and expenses attending the custody of the ship, to release it forthwith.

(9) Notwithstanding anything contained in this regulation, a person intending to apply for an order for detention shall, if the name and address of an agent in the Commonwealth for the owners of the ship, or of a solicitor in the Commonwealth authorized to act for the owners, agent, master, or consignee of the ship, are known to him, give to the agent or solicitor such notice of the time and place at which the application for the order of detention is intended to be made as may be practicable in the circumstances of the case.

(10) If a solicitor in the Commonwealth represents that he is authorized to act for the owners, agent, master, or consignee of the ship, and signs an undertaking in accordance with Form 24 in the Schedule, to put in or give security for an amount agreed on between the parties or fixed by the Judge, then, on the undertaking being filed in Court—

(a) the Judge may in his discretion refuse to make an order for detention; or

(b) if an order for detention has been made, but not executed, the Judge may rescind it; or

(c) if an order for detention has been made and executed, the Judge may deliver to the party applying for the same an order of release in accordance with sub-regulation (8) of this regulation.

(11) An undertaking given in accordance with the last preceding sub-regulation shall be filed in the Court in which the application for an order of detention is made or is intended to be made.

(12) A solicitor who fails to put in or give security in pursuance of his undertaking shall be liable to attachment.

(13) Where proceedings by way of arbitration for the recovery of compensation are taken against the persons giving security, the request for arbitration and particulars shall state concisely the circumstances under which the persons giving security are made respondents.

(14) Where proceedings are commenced in any Court in the Commonwealth other than that in which the order for detention was made or applied for, the Registrar of the Court in which the order was made or applied for shall, on request, transmit to the Registrar of the Court in which the proceedings are commenced all original documents filed in the matter, and a certified copy of all records made with reference to the matter, and any bond by way of security given in the matter, and shall transfer to the last-mentioned. Court any money paid into Court by way of security in the matter; and the provisions of the Rules of Court as to the costs of copies and the costs of transmission shall apply to any transmission under this regulation.

(15) The costs incurred by any party in relation to an application for an order of detention and any proceedings consequent thereon may in any subsequent proceedings by way of arbitration be allowed as costs of the arbitration.

(16) For the purposes of this regulation “Judge “means a Justice of the High Court or a Judge of the Supreme Court of a State.

Division 6.—Appointment of New Arbitrator.

Appointment of arbitrator by judge in place of arbitrator agreed on by the parties under Schedule. II., paragraph (7).

Cf. Eng. r. 42.

43. (1) In case of the death or refusal or inability to act of an arbitrator agreed on by the parties, any party to the arbitration who desires to make an application to the Judge to appoint a new arbitrator shall apply in writing to the Registrar to fix a time and place for the hearing of the application.

(2) The Registrar shall send the notice of the application to a Judge, who shall, as soon as conveniently may be, fix a time and place for the hearing of the application:

Provided that the time shall not, except by consent, be less than seven days from the date of the application to the Registrar.

(3) On the time and place for the hearing of the application being fixed, the Registrar shall issue to the applicant a summons under the seal of the Court in accordance with Form 26 in the Schedule, addressed to the other party to the arbitration, and requiring him to attend on the hearing of the application.

(4) The summons shall be served by the applicant on the other party in accordance with regulation 17 not less than four clear days before the day fixed for the hearing, unless the other party agrees to accept shorter service.

(5) On the day fixed for the hearing the Judge shall dispose of the application on hearing the parties, or on hearing the applicant and on proof of service of the summons on the other party, if that party does not appear.

(6) Before appointing any person to act as arbitrator, the Judge shall ascertain whether the person is willing to serve if appointed.

(7) The appointment may be made by endorsement on the summons, or by a separate order.

(8) The costs of the application shall be in the discretion of the Judge, who may order the same to be paid by one party to the other, or to be dealt with as costs attending the arbitration.

(9) The costs, if allowed, shall be taxed at such scale as the Judge directs.