Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by Mrs Charlotte Buckley or Chadwick, 4 Wightman Street, Victoria Dock Road, London, against the Elderslie Steamship Company, Limited, Glasgow, as registered owners of the steamship ‘Buteshire.’

The pursuer craved decree for the sum of £500 as damages for the death of her son, who was a dock labourer, and upon whom she alleged she was dependent.

The pursuer averred that on 7th January 1897 the ‘Buteshire’ was discharging a cargo at the Victoria Dock, London, that the Port of London Stevedore Company were employed by the defenders for the purpose of discharging the vessel, and that amongst the labourers engaged by the Stevedore Company and sent on board the ‘Buteshire’ for the purpose of the contract was the pursuer's son Thomas Chadwick.

The pursuer further averred, inter alia— “(Cond. 4) On said 7th January 1897 the said Thomas Chadwick, while in the act of descending the forward hold No. 1, where he was engaged shifting cargo, fell to the bottom of the hold, a distance of about 32 feet, and sustained a fracture of the skull, owing to which he died about an hour thereafter in the Seaman's Hospital, Victoria Docks, to which he was carried. (Cond. 5) There was no continuous ladder or other suitable means for getting down the hold. To descend into the hold it was necessary for the labourers employed on board this vessel to let themselves over the edge of the combings from the deck, and, holding on with one hand to the top of the combings, to search underneath for a narrow slot (2 or 3 inches deep) about 3 feet further down. Into this slot the person wishing to descend had to insert the four fingers of his other hand; then, leaving hold of the combings with the hand which held on to them, he had to reach with it towards the top of a fixed iron ladder about 3 feet 6 inches lower down, and about an arm's length nearer one side of the vessel. It was not possible to catch hold of this ladder without leaving hold of the slot. (Cond. 6) The said Thomas Chadwick was at that point of the descent where it was necessary to let go the slot and grip the ladder. He failed to get hold of the ladder, and in consequence fell down the hold and was killed, as stated in article 4 hereof. (Cond. 7) The accident was altogether due to the gross fault and negligence of the defenders, or of their servants on board of said steamship, in failing to provide for all who had to work in the hold a safe and proper means of descent thereto, such as a ladder from the deck to the bottom of the hold. In any case it was their duty to provide means of descent of a safer and more suitable construction than the arrangements described, which were thoroughly unfit for the purpose, and involved great danger to those

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using them. The pursuer believes and avers that prior to the accident to her son there had been other accidents on board the ‘Buteshire’ traceable to the same cause, and also that since the accident to the deceased the arrangements for descent into the hold have been improved.”

The defenders averred, inter alia—“(Ans. 5) Explained that the vessel was designed and constructed for the defenders by well-known shipbuilders, and was furnished with the customary means of ascending and descending to the hold, and that her construction was supervised and approved by the surveyor of Lloyds' Registry.”

The defenders did not object to the relevancy of the action in the Sheriff Court (there being no plea to the relevancy stated in their defences), and the Sheriff-Substitute ( Guthrie), by interlocutor dated 11th January 1898, allowed a proof.

The pursuer appealed to the Court of Session for jury trial, and an issue was lodged for the trial of the cause.

Counsel for the defenders having intimated that he proposed to object to the relevancy of the action, the case was sent to the summar roll, and upon its being called counsel for the defenders stated that he was prepared to amend the defences by adding a plea to the effect that the pursuer's averments were irrelevant. The Court allowed the amendment, and a plea to the relevancy was accordingly added to the pleas-in-law for the defenders.

Argued for the defenders—This accident occurred on board a ship, and the man who was killed was accustomed to work on board ships. It was not incumbent upon the owners to provide the same easy means for getting about a ship as might be thought necessary and customary on land— Forsyth v. Ramage & Ferguson, October 25, 1890, 18 R. 21, and Jamieson v. Russell & Company, June 18, 1892, 19 R. 898, per Lord Adam, at page 900. Nothing more was alleged here than that it was difficult and required agility to get down into the hold by the means provided. That was not a relevant averment of fault against the shipowners. It was not alleged that the means provided for descending were other than what was usual and proper in ships. The owners were not bound to provide anything more than what was usual— Edwards v. Hutcheon, May 31, 1889, 16 R. 691. It was not averred that the deceased went where he did in obedience to any order. If there was any danger it must have been quite obvious to the deceased, and he went at his own risk. He was bound to look out for his own safety.

Argued for the pursuer—An issue should be allowed. The averments in article 5 sufficiently set forth that no proper means of descending into the hold were provided. It was also averred in article 7 that accidents had occurred before in consequence of the defect complained of, and that since the accident to the pursuer's son the defect had been remedied. The owners were not entitled to get rid of their responsibility by saying that the ship had been constructed by well-known shipbuilders, with the usual appliances, under the supervision and with the approval of Lloyd's surveyor— M'Killop v. North British Railway Company, May 29, 1896, 23 R. 768. Mere knowledge of the danger on the part of the deceased was not sufficient to relieve the defenders from liability, and it was always a jury question in the circumstances of each case whether the person injured must be taken to have agreed to take the risk— Smith v. Baker & Sons, 1891, A.C. 325. The cases cited had no bearing upon the present. Edwards v. Hutcheon, cit., was decided after inquiry and in favour of the pursuer. Forsyth v. Ramage & Ferguson, cit., and Jamieson v. Russell & Company, cit., were cases relating to ships in course of construction, and, moreover, the former decision proceeded partly upon the ground that the pursuer's averments disclosed carelessness on his own part, while in the latter, where this was not the case, an issue was allowed.

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