Legal
The Merchant Shipping Acts 1894
The return of Births and Deaths in British and Irish ships is governed by the following sections:
Section 254.- (4.) The Registrar - General of Shipping and Seamen shall send a certified copy of the returns relating to such births and Deaths as follows ; ( that is to say, )
(a) if it appears from the return that the father of the child so born, or if the child is a bastard the mother of the child, or that the person deceased was a Scotch or Irish subject of Her Majesty, then to the Registrar - General of Births and Deaths in Scotland or Ireland, as the case may require and
(b) in any other case to the Registrar - General of Births and Deaths in England ; and such Registrar - General of Births and Deaths shall cause the same to be filed and preserved in or copied in a book to be kept by him for the purpose, and shall be called the marine register book; and such book shall be a certified copy of the register book to be kept within the meaning of the Acts relating to the registration of births and deaths in England, Scotland and Ireland respectively.
Section 255. - (2.) If a ship is lost or abandoned, the Master or owner thereof shall, if practicable, and as soon as possible, deliver or transmit to the Superintendent at the port to which the ship belonged the list of the crew, duly made out at the time of the loss or abandonment.
The Registration of the Deaths of Seamen Lost on Irish Vessels 1939 - 46
During the Emergency 1939 - 46 the procedure adopted by the Irish authorities in relation to the registration of the deaths of Seamen lost on Irish registered vessels which were sunk as a result of belligerent action was the following ;
1. Notification by the owners of loss of vessel and crew to the Department of Defence and Lloyds of London;
2. Owners also notified the Department of Industry and Commerce via the Mercantile Marine office at 26/27 Eden Quay, Dublin ;
3. The Minister of Industry and Commerce would decide after a period of time that the cause of the loss of the vessel was due to belligerent action and the deaths of the crew were attributed to warfare. A Certified extract Pursuant to Section 255 of the Merchant Shipping Act 1894 relating to the loss of the vessel indicating the name of the crewmember concerned, and the fact that he was now supposed to have drowned, was then sent to each of the families by the Superintendent of the Mercantile Marine Office.
The Superintendent of the Mercantile Marine Office at the time should have sent the Section 255 Certificate to the Registrar of Births and Deaths at the Custom House, Dublin, and not to the families this is where the error occurred. Some widows tried to register these deaths on foot of this document, but were refused by the authorities at the time because they were deemed not to be the qualified legal informant.
The Merchant Shipping Act 1894 requires the Superintendent of the Mercantile Marine Office as the qualified legal informant to notify the Registrar of Births and Deaths in each jurisdiction [England, Scotland, Wales] upon the death of a Seamen who was either an English, Scotch or an Irish subject at the time of his death. The death should then be entered into the Marine Register Book and a death certificate pursuant to Section 254 part 4 of the Merchant Shipping Act 1894 would issue to his relative.
In November of 1988 with the assistance and support of the then Departments of the Taoiseach, Communications, Marine and Health and through the establishment of the McCarthy precedent (see bottom of page), a legal mechanism was initiated pursuant to Section 4 of the Births, Deaths and Marriages Registration Act 1972 which allows in certain circumstances for the Registration of the Deaths of Seamen who lost their lives on Irish Registered Vessels during the Emergency 1939 - 46. The conditions for Registering a Death pursuant to Section 4 of the Births, Deaths and Marriages Registration Act 1972 are the following ;
i. The vessel must have been sunk outside of Irish Territorial waters at the time.
ii. In each case contemporary documentary evidence should be produced.
iii. In each case the next of kin of the deceased must make a statement or affidavit confirming the facts of the case.
Applicants who wish to register a death pursuant to this section should in the first instance contact the Registrar of Births, Marriages and Deaths located at Lombard Street, Dublin 2.
Case Law
Kearney v Saorstat & Contintal Shipping Co., LTD.[ Davitt J. Irish Jurist Reports May 12,1942 @ page 8].
Facts:
On the 19th September 1941 the Irish Registered vessel City of Waterford was sunk after a collison upon which Edward Kearney, a Seaman, was employed. He was subsequently rescued by another ship the British Registered vessel Walmer Castle but was later killed as a result of this vessel being bombed by German Aircraft two days later while still at sea.
Held:
Davitt J held in the Dublin Circiut Court that Edward Kearney`s employment terminated with the sinking of the City of Waterford, and, accordingly, that his death was "not caused by an accident" arising out of and in the course of employment within the meaning of the Workmans Compensation Act,1934.
[Note : Edward Kearney`s Death was never registered].
Further research now indicates that there was only one case where a relative of a seamen lost applied for and was granted letters of Administration: In O Neill Mathew [656] Captain, Irish Pine, Administration of Estate 12th June 1944, 8 Maudlinstown,Wexford, Estate valued at £885-14-9, Claimant John O Neill, Brother. Claim was based on the certification of Captain O Neill`s death pursuant to Section 255 of the Merchant Shipping Act, 1894. The Justice in this case advised that although the Death of Captain O Neill was not registered, the notification of his death pursuant to Section 255 of the Merchant Shipping Act 1894 to his family was in effect, a Certificate of his Death without a registration.
It could be argued that even though the next of kin were not the qualified legal informants the legal weight given by the Justice in this case to Certificates of Death issued pursuant to Section 255 of the Merchant Shipping Act 1894 was sufficient to enable the Registrar General of Births and Deaths to register the Deaths of Seamen lost on Irish vessels?. It could also be argued that the non registration of the Deaths of Seamen lost on Irish vessels during the Emergency amounted to a breach of the guarantee of fair procedures as this omission was a fundamental breach of a specific statutory provision ?.
"Justice must not only import fairness and fair procedures but it must also
have regard to the dignity of the individual"
McCarthy Precedent
Patricio McCarthy aged 40 years,was the cook aboard the Irish Registered Steam Trawler Leukos which was attacked by U38 and sunk off Tory Island, County Donegal, on the 9th of March 1940. His death was first registered in February 1987 pursuant to Section 254 Part 4 of the Merchant Shipping Act,1894. Subsequently this registration of death was declared ultra viries by the Registrar without explanation. Following more research his death was eventually re-registered pursuant to Section 4 of the Births, Deaths and Marriages Registration Act 1972, and is the legal precedent for the registration of the deaths of all other seamen lost on Irish Vessels during the Emergency [1939-46], however subject to the following conditions :
i. The vessel must have been sunk outside of Irish Territorial waters [limit was 3 miles between 1939-46];
ii. In each case contemporary documentary evidence should be produced.
iii. In each case the next of kin of the deceased must make a statement or affidavit confirming the facts of the case.
