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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackenzie v. The Steamship "Tregenna" Co., Ltd [1893] ScotLR 31_141 (30 November 1893) URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0141.html Cite as: [1893] SLR 31_141, [1893] ScotLR 31_141 |
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Page: 141↓
A seaman on board a vessel was injured by a fall from a wooden ladder which broke under him while he was climbing from the hold to the deck. The defect in the ladder might have been observed by inspection, and the captain was in fault for failing to have it repaired. The owners supplied the captain with all that he desired for the use of the vessel. There were two fixed iron ladders from the hold to the deck.
In an action by the seaman against the owners of the vessel, held that the defenders were not liable for the accident, which had occurred by the fault of the captain.
William Mackenzie, seaman, sued The Steamship “Tregenna” Company, Limited, Leith, for £250 sterling as damages for personal injury sustained by him on board the “Tregenna.”
The pursuer averred that he had been engaged by Captain Smith, master of the “Tregenna.” He signed articles, and joined the vessel upon 12th November. He was sent down to work in the mainhold along with the second mate, the boatswain, and two other seamen. “A wooden ladder was at the time in position between the deck and the hold, and was being used for going down and coming up by the crew, and by carpenters working in the hold. The pursuer and the other persons above named descended by the said ladder. At the dinner hour his party stopped work and proceeded to go on deck. The pursuer was ascending by the said ladder, and had nearly reached the batch-combings, and was about to place his hands on the combings, when one side of the ladder suddenly broke, and he was precipitated to the bottom of the hold, a
Page: 142↓
distance of about 20 feet. He thereby sustained a fracture of the left leg and other serious injuries. … The said ladder was broken or fractured, and not safe for use at the time when the accident occurred, and this was known or ought to have been known to the defenders, or the persons entrusted by them with the charge of the ship, who yet negligently failed to repair the defect, or to warn their employees of its dangerous condition. The said ladder was in constant use by the crew and others employed on board with the knowledge and permission of the defenders, and they or their servants allowed the pursuer to go down and come up by it on the date of the accident, and have thereby rendered themselves responsible for the injuries he sustained.” The defenders averred—“And it is further explained that the accident was due to the reckless and careless conduct of the pursuer, who attempted to reach the deck by the said wooden ladder, which he had no right to do, instead of ascending as the other seamen had done by either of the fixed iron hold ladders (of which there are two) provided for the purpose, as is wellknown to the pursuer.”
The following issue was adjusted for the trial of the cause:—“Whether on or about 12th November 1892, at or near the Albert Dock, Leith, the pursuer, while in the employment of the defenders, and working on board their steamship “Tregenna,” was injured in his person, through the fault of the defenders, to the loss, injury, and damage of the pursuer?”
The trial was heard at the Summer Sittings before the Lord Justice-Clerk and a jury. The jury found for the pursuer, and assessed the damages at £100.
The evidence showed that this ladder had been placed by some workmen, who were engaged in repairing a leakage in the deck, but the other men who were working in the hold were entitled to use it. The ladder belonged to the ship, but was not part of the regular equipment of the ship. There were two iron ladders fixed to the side of the vessel leading to the hold. No complaint had been made to the captain, but he deponed that the crack might have been seen on a close inspection, and that he would have rectified it if he had known it was cracked, and that he was supplied with everything necessary for the proper equipment of the ship.
The defenders obtained a rule on the pursuer to show cause why a new trial should not be granted.
The pursuer argued—There should not be a new trial. The defence on record was that the pursuer had no right to go upon this ladder, but that had been disproved at the trial, and now a new defence was to be set up. This case was different from Leddy v. Gibson & Company, June 18, 1873, 11 Macph. 304. In this case the ship was in a home port, and not at sea, under the charge of a ship's husband, and not of a captain. The argument that the law did not favourably regard seamen had been displaced by the passing of the Merchant Shipping Act 1876 (39 and 40 Vict. cap. 80). It had been held, however, in an Irish case later than Leddy's, that the captain was a deputy master, and liable for improper equipment— Ramsay v. Quinn, June 29, 1874, Irish Rep. 8 C.L. 322. It was the duty of the ship's husband to see that the vessel was properly supplied with all that was necessary for carrying on the work of the vessel, and if he did not do so, the owners were liable— Steele & Company v. Dixon and Others, July 8, 1876, 3 R. 1003.
The defender argued—The pursuer was not entitled to recover damages, because either the crack in the ladder was patent or it was a latent defect. If it was patent, then the pursuer could see it as well as anyone else, and ought not to have used the ladder; if it was latent, then no one was to blame. Assuming, however, that the defect ought to have been discovered, the owners were not liable, because they had put sufficient equipment on board, and it was the duty of those on board to see that the equipment was kept efficient. If it was the duty of the captain to do this, then the captain, according to the case of Leddy, supra, was a fellow-workman, and the pursuer could not recover from the owners. The principle had been settled in the case of Gordon v. Pyper, December 1, 1893, 29 S.L.R. 178. The case of Ramsay was considered in an English case— Hedley v. Pinkney & Sons' Steamship Company, November 17, 1891, L.R., Q.B.D. 258—and the principle there laid down repudiated.
At advising—
It is another question whether if the defect in the ladder had been observed, and the fault lay in not having it repaired, that fault being the fault of one of the seamen or officers on board the ship—even it may be of the highest officer, viz., the captain—the pursuer can make the owners of the vessel liable in damages? On the evidence it is plain that the owners supplied the vessel with all the appliances usual and sufficient for such a vessel, and no doubt if the captain found that he had not sufficient ladders for carrying on the work of the ship, he could have supplied more on his own authority. It is proved, indeed, that the work could have been carried on without the use of this ladder at all, because there was another ladder on board of greater length that would have answered the purpose. Therefore undoubtedly this ladder was not used because the defenders had failed to provide any other ladder suitable for the work. Now, if this ladder had a serious crack in it which the captain knew of, and he allowed the
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In the Irish decision quoted to us by Mr M'Kechnie it was held that in such a case the owners would be liable, but in the English case in which that decision is considered, such a reading of the law of master and servant is altogether rejected, and in this Court there is no doubt that under the decision quoted by the defenders a captain is held to be a fellow-servant of the seamen under him; therefore the owners would not be liable for an accident caused by the captain's fault.
The case of Gordon v. Pyper, I think, is quite decisive of this question. In that case a traveller-rope had been supplied to a trawler. It was in good condition when supplied, but during its service it had got frayed and weakened, and was unfit to bear a strain put upon it, so that it broke and injured a seaman. It was the duty of the captain to see that the rope was kept in proper condition, and the owners were held by a unanimous judgment of this Court not to be liable. I think the rope and the ladder are in the same category, and therefore I think the rule must be made absolute for a new trial.
It is plain that the ladder was in a defective condition, because it broke down, but whether the defect was patent or not is a matter of controversy.
Suppose that the defect was patent, who was to blame for allowing the ladder to remain on board in such a condition that when it was used it broke down? As a matter of common sense I should think it was the duty of some one of the crew to see that the ladder was kept in proper repair, and not of the owners of the vessel. Whose duty among the crew, then, was it to see that this was done? That raises the question, if an accident occurs to one of the crew from the fault of another of the crew, who is responsible? That, again, raises the general question, what is the law of contract applicable to the circumstances? Does a sailor, when he ships on board a vessel, take upon himself the risks of accident occurring through the fault of one of the crew who was his fellow-servant, or does he not? It must be by implication of course, because there is nothing of that kind stated in the contract of service.
I have no hesitation in saying that according to our law any sailor engaging to go on board a vessel takes upon himself the risk of error or fault upon the part of any other member of the crew, and I think it is according to the decisions that he takes upon himself the risk of any error or fault upon the part of his captain. The captain and crew are really the contracting parties. It is usually the case, and it was the case here, that the master of the ship engages his own crew. The crew select what captain they will serve under, and the captain engages what crew will suit him, and therefore it is the strongest case possible for implication in the contract that a sailor engaging under any captain takes the risk of any danger which may arise from the error or neglect of that captain. Therefore if there is any fault from the error or neglect of the captain the owners are not liable, because under the common law the captain is a fellow-servant of the seaman.
The same reasoning would apply if the defect was latent— prima facie in that case there would be no fault—but if there was fault, then the fault would be that of one of the crew and a fellow-servant.
I think that the evidence has not proved any wrongdoing on the part of the owners of the vessel.
The Court set aside the verdict and granted a new trial.
Counsel for Pursuer— M'Kechnie— Mackintosh. Agents— Snody & Asher, S.S.C.
Counsel for Defender— Jameson— W. L. Mackenzie. Agents— Mill, Bonar, & Hunter, W.S.
