Scottish Court of Session Decisions

This was an action at the instance of Christina M Kinlay or Waterson, widow of the late James Waterson, boiler coverer, against Henry Murray & Company, owners or builders of the steamship “Sergipe,” to recover damages for the death of her husband.

The pursuer averred that on 18th April her husband, who was in the employment of William Duff, was sent by him to assist in work at the boilers of the defenders' ship “Sergipe,” which he (Duff) had been employed to cover; that the “Sergipe” was lying at the dock outside the “Tennasserim,” which it was necessary to cross and thence go by a gangway to the “Sergipe that it was the custom where, as in this case, the vessel is not out of thehands of the builders (which she alleged the defenders to be) for them to supply a gangway for the use of all who are working at the ship. “(Cond. 4.) The ‘Tennasserim’ was a much higher vessel than the ‘Sergipe,’ and the said gangway, which was lashed at one end to the ‘Tennasserim,’ at the other end rested upon a block of wood placed on the gunwale of the ‘Sergipe;’ and the gangway was unsteady, as the block of wood shook at any movement of the vessels. The gangway consisted of two planks about 12 feet long, joined together by small

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pieces of wood; its whole width was not more than 18 inches, and it had no rail or protection at either side. (Cond. 5) The said James Waterson commenced his work by carrying two buckets of covering composition from the quay towards the ‘Sergipe,’ and had got as far as the gangway between the two ships when, owing to the insufficiency or defective condition or arrangement of said gangway, he fell from it into the dock, and was drowned or killed.” The pursuer then averred that a constable on duty at the dock, and some of the defenders' men, had complained to the defenders' foreman of the state of the gangway. “(Cond, 8) The death of the said James Waterson, as aforesaid, was due to the fault and negligence of the defenders, the said Henry Murray & Co., or those for whom they are responsible. In particular, it was due to defects in the condition of the ways connected with or used in the business of the defenders, the said Henry Murray & Co., and to these defects not being remedied, owing to their negligence, or the negligence of some person in their service entrusted by them with the duty of seeing that the ways were in proper condition. There was a duty on the part of the defenders, the said Henry Murray & Co., to see that the said gangway was sufficient for the purposes for which the deceased was using it at the time of the accident; but they neglected this duty, and allowed deceased to use said gangway as it was.”

The defenders denied fault, and pleaded (1) that these staements were irrelevant.

The Sheriff-Substitute ( Gebbie) pronounced this interlocutor:—“Sustains the defenders' first plea-in-law, and assoilzies them from the conclusions of the action as laid.”

“ Note.—The fault through which the pursuer lost her husband, who fell from a gangway leading to a vessel on board which he was to work, seems to be that the condition or arrangement of the gangway was insufficient or defective. There is, however, as it appears to me, no specific averment in what respect it was so. Such an allegation is essential in an action of this description, and without it no relevant case is stated. The record is far from being skilfully prepared. Indeed, the fact—if it was a fact—of the deceased having been engaged in a common employment under the defenders, is so meagrely stated, that the greatest difficulty is felt in regard to the relevancy of that branch of the case; also, there is nothing like the full and precise statement upon that matter which is found in the recent case of Morrison v. Baird & Co., Dec. 2, 1882, 10 R. 271.”

The pursuer appealed to the Court of Session.

The Court, after hearing pursuer's counsel, without delivering opinions, affirmed the Sheriff's judgment.

The pursuer then moved that the action should be dismissed, and pointed out that the Sheriff instead of dismissing it had assoilzied the defenders from the conclusions of the action as laid.

The Court refused the motion, and held (following the case of Russel v. Gillespie, July 22, 1859, 21 D. (H.L.) 13) that this interlocutor could not be pleaded as res judicata in bar of another action, because it only assoilzied the defenders from the conclusions of the action “as laid.”