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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sharp v. Rettie [1884] ScotLR 21_507 (19 March 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0507.html Cite as: [1884] ScotLR 21_507, [1884] SLR 21_507 |
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In an action for payment of wages at the instance of the engineer of a vessel against the owner, the defence was that the owner had a claim of damages for injuries caused by the misconduct and neglect of duty of the pursuer, which he was entitled to set off against the claim for wages. No entry of the misconduct complained of had been made in the ship's log at the time as provided for by sections 243 and 244 of the Merchant Shipping Act 1854. Held that the owner's claim of damages was not thereby barred, since these sections related only to summary criminal prosecutions, and did not supersede the civil remedy which the owner had at common law.
This was an action at the instance of John Sharp, an engineer residing in Leith, against Peter Rettie, master and owner or part-owner of the steamship “Escurial” of Glasgow, for the sum of £123, 0s. 5d. said to be due to him as wages.
The pursuer was engaged by the managing owners of the “Escurial” on 3d April 1883 to join the ship, then at Glasgow, as first engineer for a period not exceeding one year, for a voyage to Singapore and other ports in Chinese waters and home to port of discharge in United Kingdom, at £16 per month of wages. By the articles of shipping he agreed to conduct himself in an orderly, faithful, and sober manner, and to be at all times diligent in his duty; “And it is hereby agreed that any embezzlement or wilful or negligent destruction of any part of the ship's cargo or stores shall be made good to the owners out of the wages of the person guilty of the same.”
The pursuer stated that he served on board the vessel under the agreement from 4th April until 8th December 1883, when the vessel arrived in Leith and his engagement terminated. He further stated that for the period he served on board the vessel there was due to him wages amounting to £130,13s. 2d.; that he had received £7, 12s. 9d. to account at different dates, leaving a balance of £123, 0s. 5d., being the sum sued for.
The defence was that the pursuer had caused injury to the boilers, engines, and machinery of the vessel by his misconduct, and that there thus arose a claim of damages for a larger sum than that sued for, which the defender was entitled to set off against the pursuer's claim. In the statement of facts for the defender it was averred—“(Stat. 3) Before the said steamship left Glasgow her boilers were thoroughly scaled and cleaned, and her engine overhauled, and they and the whole machinery of said steamship were in a thorough state of repair when she left Glasgow.” “(Stat. 4) The said steamship arrived in Antwerp on 9th April last, where she loaded some cargo, and remained at that port for six days. Some slight repairs on the machinery of said steamship were done at that port on the pursuer's orders and under his supervision, and on the voyage from Antwerp to Marseilles she made a quick passage. (Stat. 5) The owners' instructions to the pursuer were that he was to make good use of his time during the voyage and at the various ports at which the said steamship was to call, to keep his engine, boiler, and machinery in a thorough state of repair, and for that purpose to see that the boilers were scaled and cleaned when necessary. (Stat. 6) At the ports of Marseilles, Manilla, Saigon, and Hong-Kong, on the outward voyage, the said steamship lay a considerable time taking in and discharging cargo, and at all of these ports the pursuer had ample opportunity of doing any repairs and cleaning that were necessary to the efficient upkeep of the boilers, engine, and machinery. (Stat. 7) At Hong-Kong, where the said steamship lay from 6th to 13th August, the pursuer was all the time drunk and quite incapable of properly attending to his work. He was on this occasion reprimanded by the defender. (Stat. 8) At all the ports mentioned in article 6, where the said steamship lay a considerable time, the pursuer instead of attending to his duty and getting the boilers cleaned and engine and machinery put in order for the run, wilfully neglected his duty, and failed to clean the boilers and overhaul the machinery so as to keep them in an efficient state of repair. (Stat. 9) On leaving Hong-Kong a pump-rod broke, and in consequence the steamer had to put back to Hong-Kong for repairs. If the pursuer had been attending to his duty this accident ought to have been foreseen and prevented. (Stat. 10) On the homeward run, and while the said steamship was at Singapore on 30th September and 1st October, the pursuer was ashore
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and not attending to his duty. After the said steamship left Singapore the pursuer was drunk and unfit for duty for four days running, viz., on 2d, 3d, 4th, and 5th October. The defender on this occasion formally entered him in the log for drunkenness. (Stat. 12) On 9th November the said steamship arrived in Port Said, where the pursuer again went ashore and neglected his duty. The defender, at that port, seeing that the pursuer was neglecting his duty, went ashore for a boilermaker to come on board and do some work to the boiler, which was reported to be nearly salted up. While ashore he found the pursuer in a public-house. Thereafter the pursuer came on board drunk, and continued so all next day. During the time the repairs were going on the pursuer was not in a fit state to take charge of the work. The work done was afterwards found not sufficient to put the boiler in a safe or satisfactory state to proceed to sea; and had the pursuer been sober and attending to his duty he ought to have known this, and remedied the state of affairs which his former drunkenness and carelessness had occasioned. (Stat. 14) The pursuer's course of misconduct and continued neglect of duty, as above libelled, was reported by the defender to the managing owners of said steamship, and so soon as might be after the steamer's arrival in Leith they had the engine, boilers, and machinery of said steamship opened up and examined. It was then found that these had been grossly neglected by pursuer, whose duty was to attend to them. In particular, the boiler tubes were filled up with salt, many of them solid, the combustion chamber tops so thickly coated with salt as to be dangerous, and the furnace crowns in same condition. The outside of the tubes was covered with salt of about a quarter of an inch thick, and in many places the salt was so thick as to form a solid mass between the tubes. The boiler fronts were burnt and bent, one pressuregauge lost, another broken, pumps were without packing, and, in fact, everything under the pursuer's charge was in a disgraceful state of disrepair and dirt, all in consequence of pursuer's neglect of duty. By ordinary care on the pursuer's part, and the proper use of the appliances and means at his command, the said damage could easily have been avoided. (Stat. 15) In consequence of the pursuer's neglect of duty the boiler of said steamship has had to be almost retubed, the salt being so solid as to defy getting it off, though men were employed for ten days in endeavouring to get this done. A new boilergauge had to be bought and one repaired, and extensive repairs had to be done to the engines. The accounts for repair of the damage so caused by pursuer have not yet been obtained, but the cost exceeds the sum sued for. In addition to this cost the said steamship was detained for six days while undergoing said repairs. £25 per day is a reasonable allowance for said steamship, which for six days is £150. (Stat. 16) In consequence of pursuer's neglect of duty the said steamship lost considerable time on said voyage, in addition to the foresaid time lost while said repairs were being executed. The defender estimates that during the voyage the said steamship, through pursuer's carelessness, lost at least fifteen days, which at £25 per day is £375. (Stat 17) In any case the pursuer cannot recover wages for the following days he was drank and totally unfit for duty, viz., six days at Hong-Kong, four days at sea, and two days at Port Said, in all twelve days, at £16 per month, is £6, 17s. 1d. The pursuer has, however, substantially and on the whole failed to perform his part of the contract of service, and is not entitled to recover any payment. He has caused loss, injury, and damage to the defender, as representing the owners, through his breach of contract and gross neglect of duty in manner above libelled, to an amount exceeding the sum now sued for.” The pursuer pleaded—“(4) The alleged charges against the pursuer not having been entered in the official log-book, and the other procedure required by statute not having been followed, evidence of the defender's averments ought not to be received. (5) In any view, no deductions from the pursuer's wages ought to be made, except those included in the account of wages delivered to the pursuer by the defender.”
The defender pleaded—“(1) The pursuer not having performed his part of the contract of service, he is not entitled to recover the sum now sued for. (2) The pursuer having caused loss, injury, and damage to the defender, as representing the owners, through his breach of contract and neglect of duty, to an amount exceeding the sum now sued for, the defender is entitled to absolvitor.”
The sections of the Merchant Shipping Act 1854 bearing on the case are quoted in the opinion of the Lord Ordinary infra.
It is also provided by section 241 of the Merchant Shipping Act 1854, that “If the Board of Trade or any local marine board has reason to believe that any master or mate is, from incompetency or misconduct, unfit to discharge his duties, the Board of Trade may either institute an investigation or may direct the local marine board …. to institute the same.”
Section 11 of the Merchant Shipping Amendment Act 1862 (25 and 26 Vict. cap. 63) provides—“The power by the 241st section of the principal Act given to the Board of Trade, or to any local marine board, of instituting investigations into the conduct of any master or mate whom it has reason to believe to be from incompetency or misconduct unfit to discharge his duties, shall extend to any certificated engineer whom the Board of Trade or any local marine board has reason to believe to be from incompetency or misconduct unfit to discharge the duties, in the same manner as if in the said section the words ‘certificated engineer ‘had been inserted after ‘master’ wherever ‘master’ occurs in such section.”
The Lord Ordinary ( Fraser) on 21st February 1884 allowed to the defender a proof of the 14th and 15th statement of facts for him, and to the pursuer a conjunct probation.
“ Opinion.—The action is for wages at the instance of the engineer of a steamship against the master—for himself and as representing the owners—to which the defence is, that no wages are due, in respect of drunkenness and neglect of duty on the part of the pursuer, in consequence of which it is said that he has caused injury and damage to the defender to an amount exceeding that now sued for. Various acts of drunkenness are condescended upon by the defender; as is also neglect of duty in not keeping his engine boilers in good condition, as he was bound to do.
The pursuer maintains that these averments as
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Now, the defender is not prosecuting for any offence, nor exacting a fine, and he is not in terminis exacting a forfeiture. But he is in reality enforcing such forfeiture, seeing that he pleads, in answer to the pursuer's claim for wages, compensation in consequence of the injury and damage which the pursuer's neglect of duty caused to him. This was a case, therefore, that ought to have been entered in the log-book. But the only one of the offences of the pursuer so entered is his drunkenness on the 2d, 3d, 4th, and 5th October 1883.
The defender insists upon setting off his claim for damages against the claim for wages, founding on the common law, while, on the other hand, the pursuer contends that the common law in this matter is superseded, and that he can only be made liable under the 243d section (subdivision 5) to imprisonment (which is not sought against him), and to (at the discretion of the Court) a forfeiture of six days’ pay for every twenty-four hours’ neglect of duty. Mr Justice Shee, in the 11th edition of Abbott on Shipping (p. 153), expresses an opinion contrary to this in the following terms:—‘The breach of these duties and of this engagement consists in desertion, quarrelsomeness, turbulence, mutiny, disobedience, neglect of duty, drunkenness—offences which, according to the frequency of their occurrence, the length of their continuance, and their circumstances in each particular case, besides the penalties and forfeitures enacted by the statutes, may at common law justify the personal restraint and correction of the mariner, or subject him to dismissal and forfeiture of wages. It may happen that the regulations prescribed by the statutes to protect the mariner against an undue infliction of forfeitures, such as an entry in the log-book of the circumstances attending the alleged offence, have not been complied with by the master; and in such a case, although the statutory forfeiture may not be incurred, yet proof of the mariner's misconduct, to the satisfaction of the Court of Admiralty, may furnish a defence to an action brought by him for his wages against the master or owners.’ This opinion has been repeated in the 12th edition edited by Mr Prentice, Q.C., published in 1881 (p. 131). But these opinions have not been sustained by a judgment of the Queen's Bench Division in England. It was determined in the case of The Great Northern Steamship Fishing Co. v. Edgehill (6th June 1883, 11 Q. B. D. 225) that the Merchant Shipping Act 1854 (17 and 18 Vict cap. 105), sec. 243 — which enables a seaman who neglects without reasonable cause to join his ship, to be punished, upon proceedings before a Court of summary jurisdiction, with imprisonment and forfeiture of part of his wages,—by implication takes away any other remedy against the seaman for breach of contract, and the shipowner cannot, where the amount which he claims does not exceed £10, take proceedings for the recovery of damages.
It is therefore maintained that no proof should be allowed of any offences not entered in the log-book, and the pursuer is willing to allow a deduction for the four days' neglect of duty that were entered in that book. If the construction of the statute by the Queen's Bench be right, then the question would come to be, whether the Court, exercising the discretion given to it by the 244th section, should receive evidence of the offences which are not entered in the log-book? No explanation is given on the record, or was given to the Lord Ordinary, why the other acts of drunkenness that are set forth were not entered in the log-book. It was not said (except in regard to one matter) that they had not come to the knowledge of the defender. On the contrary, it is said that they were made matter of remonstrance, and on one occasion, on 9th November,
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The Lord Ordinary adopts the construction put upon the statute by the Queen's Bench Division, and in the exercise of his discretion he refuses to accept evidence of any of the pursuer's offences except those set forth in the defender's 14th and 15th statement of facts. The neglect of duty therein pointed at could not have been discovered by the master of the vessel, and were not in point of fact discovered, until she had arrived at Leith and had her boilers and other machinery overhauled. It could not therefore be expected that this neglect of duty could be entered in the log, and evidence of it has now been allowed. If proved, a question of difficulty may arise as to the amount of forfeiture of wages which may be imposed; but that is a question that need not at present be solved.”
The defender reclaimed, and argued — He should be allowed a general proof of all his averments, for statements 14 and 15 could not be proved without the others. Sections 243 and 244 of the Merchant Shipping Act were to be read together, and therefore it was only in the case of a prosecution for an offence under section 243 that an entry required to be made in terms of section 244. The term “subsequent legal proceedings” referred only to prosecutions under section 243. But the defender was not prosecuting under section 243, and therefore no entries were necessary. He was making a claim of damages which he had at common law, and which the statute had not taken away — Fraser on Master and Servant, 475; The Duchess of Kent, 1 Rob. Adm. Rep. 283; Abbott's Law of Merchant Ships and Seamen, 11th ed. p. 153, 12th ed. p. 131. In any event, the defender was entitled to ask the Court, in the exercise of its discretion, to allow a forfeiture without any entry in the logbook—M'Lachlan on Merchant Shipping, 247. The decision in the case of the Great Northern Steamship Fishing Co. was not in point, because that was a case of an ordinary deck hand; this was the case of a certificated engineer, who by section 11 of the Merchant Shipping Act Amendment Act 1862 (25 and 26 Vict. c. 63) was placed in the same position as the master with regard to investigations as to misconduct under section 241 of the Act of 1854. The pursuer had already been tried by the Board of Trade under section 241, and his certificate had been suspended for six months. The decision in the English case was not sound, because common law rights could not be discharged except by express enactment— Wolverhampton New Waterworks Co. v. Hawkesford, 28 L.J., C.P. 242. Addison on Torts (5th ed.), 65; Chapman v. Pickersgill 2 Wilson, C.P. 145; M'Avoy, &e. v. Young's Paraffin Co. (Limited), November 5, 1881, 9 R. 100; Morrison v. Baird & Co., December 2, 1882, 10 R. 271.
The pursuer replied—Section 243, sub-section 5, took away the common law remedy which previously existed— Great Northern Steamship Fishing Co. v. Edgehill, 11 Q.B.D. 225. An engineer was within the definition of seamen contained in section 2 of the Act of 1854. The provisions of that Act were intended to protect seamen. The remedy given by the statute could only be enforced by complying with the provisions of section 244 in regard to entries in the log-book. The criminal remedy came in place of the civil remedy— Fortune v. Frost, 3B. and P. 302; Christie v. Thompson, June 12, 1858, 20 D. 1114. The defence was barred under section 171, because after the vessel arrived in port an account was delivered to the pursuer with a deduction of four days' wages only.
At advising—
The defence to the action is not a challenge of the amount said to be due, if the pursuer is entitled to recover at all, but is upon the ground, that the defender has committed a breach of contract, and therefore is not entitled to sue upon the contract; further, that by the breach of contract serious loss and injury has been caused to the defender's property, whereby a claim of damages has arisen which he is entitled to set off against the pursuer's claim under the contract. That this would be competent in the ordinary case is not disputed. It is always competent when one party sues the other upon a contract entered into between them, for the latter to say “You broke the contract, and instead of my being in debt to you, you are in debt to me.” Though this form of defence amounts in substance to an action of damages, yet it is an action of damages for real injury, by which I mean injury done by the pursuer to the property of the defender, and this is made very clear on the face of the record and statement of facts for the defender. That statement is to the effect that when the vessel sailed from Glasgow the engine and boilers had been repaired and were in good order and well fitted for the work they had to perform, if only they were well kept, but that when the vessel returned to Glasgow after her voyage, the engine and the boilers were in a total state of disrepair and disorder, and that very serious injury had been caused by the neglect of duty, drunkenness, and other misconduct of the pursuer.
That in the ordinary case is of course a relevant defence, but the reply made by the pursuer is that it is not competent to set off such a claim against the amount of the wages due to him because the provisions of the Merchant Shipping Act 1854 have not been complied with, and he refers to section 243, and also to section 244. The part of section 243 to which special reference was made as being applicable here provides for the case of continued wilful disobedience or continued wilful neglect of duty; and what the pursuer says is, that if this occurs and is not entered in the log-book by the
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It has been contended, however, that these enactments provide a remedy to the shipowner which cuts off by implication any common law right he may have to recover damages. I am quite unable to agree with that argument. I think it involves the most unreasonable construction of a statute ever heard of. The result would be very unreasonable if the Legislature intended it, for the destruction of property might amount to hundreds or thousands of pounds, and yet the shipowners would have to be satisfied with a forfeiture of wages as a consequence of acts of continued disobedience or neglect of duty which must be entered in the log-book, though the cumulative effect of these acts might be to destroy the engines or the ship.
As a general rule, when a new remedy is introduced the common law remedy is not cut off except by express words or by very clear implication. I can conceive no case more clear than the present for holding that the common law remedy is not cut off. The remedy, so far from being substitutional, is not even parallel, for section 243 does not deal with civil actions or remedies, but with criminal prosecutions, and I certainly never heard of a summary criminal prosecution coming in place of an action of damages. It is after the criminal charge has been disposed of that a claim of damages arises as a necessary or a natural consequence, whereas it is contended here that this summary criminal remedy, whether adopted or not, is sufficient to prevent any claim being made for damages, or at least that the shipowner cannot claim more than the wages forfeited in the prosecution, and that he cannot even claim that without recording the various acts of misconduct in the log-book.
It certainly makes one hesitate a little to find that apparently in a case decided by the Queen's Bench Division an opposite conclusion was reached. The facts are not well given in the report, and have to be gathered from the leading judgment, and I am not quite sure that I understand what the facts were. I can only say, after reading the judgment, that if it is applicable to a case like the present I am totally unable to come to the same conclusion.
The defender is therefore put to prove his averments of misconduct and damage, and I do not see how the proof can be limited. These are averments of damage consequent on the misconduct of the pursuer, and yet the Lord Ordinary has practically prevented the defender from proving the pursuer's misconduct, for how he could bring home the general charge without going into particular acts I do not see. I am therefore for allowing the defender a proof of his averments.
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From the defender's statement of facts it appears that the pursuer's misconduct and continued neglect of duty was such that the engine and boilers were in a disgraceful state of disrepair and dirt; that the boiler-tubes were so thickly coated with salt as to be dangerous; and that all the machinery under the pursuer's charge had been so neglected that the property of the defender had been very seriously injured indeed.
The Lord Ordinary has refused to allow the case to go to proof except upon statements 14 and 15 for the defender, so that he has practically rejected the shipowner's claim, for I fail to see how he is to prove that the pursuer was guilty of the misconduct averred in those statements unless he is allowed to go into the various acts specified in the other statements. In taking this course the Lord Ordinary has followed the English case of The Great Northern Steamship Company v. Edgehill, which was decided in the Queen's Bench Division, and to which your Lordship has referred.
I agree with both your Lordships that this is not a case to which the provisions of the Merchant Shipping Act of 1854 with regard to entries in the log-book have any application. I think that section 244 must be taken along with section 243. By section 243 are introduced various fines and forfeitures which are just punishments, and it is to these alone that the provisions in section 244 with regard to entries in the logbook apply. That is to say, if the shipowner, or other party entitled to prosecute, means to make neglect of duty on the part of a seaman the subject of a complaint, so that it may be punished as a criminal offence or misdemeanour, then a note of the misconduct must be entered in the log-book. But has that any application to a case of this kind? The claim of the shipowner here is clearly for what is of the nature of a civil debt, and I am therefore of opinion that these provisions have no application to a case such as the present. It is a general principle that where by statute an additional or cumulative remedy is given in the shape of penalty or punishment it cannot be assumed that the civil or previously existing remedy is intended to be abrogated without, as your Lordship has said, express words or the clearest implication. It has not been suggested that there is anything of the kind in the statute here, and the only difficulty, in my mind, arises from the English decision, and the respect which I have for the Judges who pronounced that decision. I observe, however, that Mr Justice Field, at the close of his opinion, which was concurred in by Mr Justice Denman and Mr Justice Hawkins, says—“We think therefore, although not without some hesitation, that the Magistrates have rightly dismissed the summons, and that the appeal must follow the same fate.” As to the principle upon which the decision rests it rather appears that the Judges there took the same view of the general rule of law as that stated by your Lordship, for it is said that the additional remedy is not to be regarded as superseding the remedy already in existence, unless it is provided by the statute in express words or by necessary implication. I notice that in one passage Mr Justice Field says—“But the duty under consideration in this case is an ordinary obligation to perform an ordinary contract of service, to the breach of which has been annexed the general remedy by action in favour of the employer ever since the contract of service itself. In order, therefore, to be able to hold that the employer is deprived of that remedy, the mere annexation of a new specific remedy would not by itself be sufficient; it must also appear from the statute to have been the intention of the Legislature that the general remedy should not co-exist, otherwise the new remedy will be merely cumulative, and in aid of the general one— The Mayor of Lichfield v. Simpson, 11 Q.B. 731. It is not, however, necessary that this intention should appear in express terms; it may be implied, and will and ought to be so if the future application of the general remedy is inconsistent with the new legislation. In such a case the exclusion will take place just as effectually as if the statute had expressly declared it.” Then, in what follows, Mr Justice Field goes on to show that the general remedy is inconsistent with the new legislation. With that view I am unable to concur. I do not think that the general remedy is inconsistent with the new legislation. In the first place, as your Lordship has stated, the remedies are not parallel—the one is a criminal prosecution for a misdemeanour, the other a civil action of damages. In the second place, as was remarked at the bar, the two remedies are not commensurate, for in the case of a forfeiture of wages the amount forfeited might be very small, while the claim for damages might be very large. And yet it is maintained that the owner by this provision for the forfeiture of wages has lost his right to claim a very large sum, which may amount to hundreds or thousands of pounds. I think that would require very clear words, which I do not find here. Seeing, however, that the statute does authorise a forfeiture, if it should appear that the shipowner has got so much under a forfeiture which he has already enforced, I cannot suppose that he would be entitled a second time to claim the same forfeiture—the forfeiture must be once for all.
On the whole, I am of opinion that these provisions of the Merchant Shipping Act relate to misdemeanours only, and that it is in regard to these only that entries are required to be made in the log-book of charges of misconduct. I therefore think that we should allow the defender a proof of his averments.
The Court recalled the interlocutor of the Lord Ordinary, allowed to the defender a proof of his statement of facts, and to the pursuer a conjunct probation, and found the defender entitled to expenses since the date of the Lord Ordinary's interlocutor.
Counsel for Pursuer (Respondent)— Thorburn Agent— Andrew Wallace, Solicitor.
Counsel for Defender (Reclaimer)— R. V. Campbell— Ure. Agents— Campbell & Smith. S.S.C.
