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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cayzer, Irvine, & Co. v. Dickson [1905] ScotLR 42_591 (03 June 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0591.html Cite as: [1905] ScotLR 42_591, [1905] SLR 42_591 |
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Page: 591↓
[Sheriff Court of Lanarkshire at Glasgow.
A had been employed by a firm of shipowners as a ship's carpenter on board one of their vessels during the vessel's previous voyage. He was also engaged for the vessel's next voyage, which had not yet commenced. In the interval the shipowners employed him in assisting in the work of repairing the vessel, which was then lying in a dry dock hired by the shipowners for the purpose of repair. While engaged in the work A was fatally injured. The work in which A was engaged at the time of the accident was unshackling the ship's cable with the view of turning it end for end. In emergencies that operation is done at sea, and it then forms part of the duty of a ship's carpenter.
Held that the employment in which A was engaged at the time of the accident was an employment to which the Workmen's Compensation Act 1897 applied.
The Workmen's Compensation Act 1897 (60 and 01 Vict. c. 37) enacts—“sec. 7 (1) This Act shall apply only to employment by the undertakers as hereinafter defined, on or in or about a … factory.… (2) In this Act factory has the same meaning as in the Factory and Workshop Acts 1878 to 1891, and also includes any dock … to which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895.” …
By the Factory and Workshop Act 1895 (58 and 59 Vict. c. 37), sec. 23, certain provisions of the Factory Acts are to have effect as if “( a) every dock, wharf, quay, … were included in the word factory.” …
In an arbitration under the Workmen's Compensation Act 1897, before the Sheriff-Substitute
Page: 592↓
of Lanarkshire at Glasgow, between Cayzer, Irvine, & Company, shipowners, Glasgow, and Mrs Rachel Kennedy or Dickson, widow, residing at 6 Chapel Street, Greenock, as an individual and as tutrix and administratrix-in-law for her pupil children, the Sheriff-Substitute ( Boyd) awarded compensation. A case for appeal was stated.
The case stated—“(1) That the respondent is the widow of James Dickson, ship carpenter; that she was married on 10th February 1899 and has three children of the marriage, viz., Catherine M'Leod Dickson, born 9th November 1899; Isabella M'Dougall Pollock Dickson, born 15th May 1901; and Helen Black Dickson, born 21st May 1903; and that she and her children were wholly dependent upon the earnings of the deceased. (2) That on 11th March 1904 the appellants, between voyages, for cleaning and repairs docked their s.s. ‘Clan Fraser’ in No. 3 Graving Dry Dock, Govan, which they had hired from the Clyde Navigation Trustees. (3) That James Dickson was engaged by the appellants as ship's carpenter on board this vessel. (4) That he had served during the previous voyage and was engaged for the voyage for which the vessel was preparing, and in the interval in dock he was employed by the appellants on board in the work of repair. (5) That on 11th March 1904 he was engaged on the forecastle head in turning the ship's cable end for end, and while removing the shackle of the cable which passed through the ring of the anchor he overbalanced and fell to the bottom of the dock and sustained injuries from which he died on the same day. (6) That the operation of unshackling the ship's cable on which the deceased was engaged at the time of the accident is as a rule done in dry dock, but that in emergencies it is done at sea, and it forms part of the duty of a ship's carpenter. (7) That the deceased's average weekly earnings in the employment of the appellants were 36s.
“On these facts I found in law that the accident happened to the deceased James Dickson when employed on in or about a factory within the meaning of the Workmen's Compensation Act 1897; that the accident arose out of and in the course of his employment; that the appellants were the undertakers of the employment in the sense of said Act and were liable in compensation to the respondents, and fixed the sum at £280, 13s.
“I therefore awarded to the respondent Mrs Rachel Kennedy or Dickson the sum of £100, 13s., and to each of her three children the sum of £60. I also found the appellants liable in expenses.”
The question of law was—“Was the employment in which the deceased James Dickson was engaged at the time of his death an employment to which the Workmen's Compensation Act applies?”
Argued for the appellants— Esto that on the authority of Maine v. Jobson ( cit. infra) the dock in question was a factory, the work in which Dickson was engaged, viz., unshackling the, ship's cable with the view of turning it end for end, was not part of the ordinary work of this constructive factory. The work of this factory was the repair of ships, but Dickson was not engaged in work of that kind. He was doing the ordinary work of a seaman at the time, and seamen were not within the Act. “Seaman” included every person (except masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship. The following cases were cited:—(1) As to the dock being a factory— Merrill v. Wilson & Company, Limited, [1901] 1 K.B. 35; Raine v. Jobson & Company, [1901] AC 404; Griffin v. Houlder Line, Limited, [1904] 1 KB 510, rev 21 T.L.R. 436; Barrett v. Kemp Brothers, [1904] 1 KB 517; Owens v. Campbell, Limited, [1904] 2 KB 60; Stevens v. General Steam Navigation Company, [1903] 1 KB 890; Reid v. Anchor Line, February 6, 1903, 5 F. 435, 40 S.L.R. 352. (2) As to meaning of “seaman”—Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), sec. 742; The Queen v. Judge of City of London Court, L.R., 25 Q.B.D. 339, per Lord Coleridge at p. 342; Thomson v. Hart, October 27, 1896, 28 S.L.R. 28.
Counsel for the respondent were not called upon.
The Sheriff finds that the work in which he was engaged was unshackling the ship's cable in order to turn it end for end. He also finds that Dickson was employed in the work “of repair.”
I find no difficulty in holding that the operation of unshackling the cable with a view to turn it end for end was a work of “repair.” I see no reason to limit the meaning of repair to the supply or mending of something broken. We are told, it is true, by the Sheriff that unshackling the ship's cable is an operation which may take place in emergencies at sea, and that if done at sea such repair would be part of the proper work of the ship's carpenter. The Sheriff has found, however, that he was engaged in “the repair” of the ship, and that being so I think no distinction can be drawn between this case and that of Raine v. Jobson, and that it is governed by that decision.
In the present case the dock was at the exclusive disposal of the shipowners, by whom it had been hired, and the repairs were being executed by workmen employed by them. One of these was a ship's carpenter who had been employed on the vessel during the previous voyage, but who at the time when he met with the accident was not engaged as a seaman but as a workman employed to execute repairs.
The fact that the particular operation on which he was engaged, viz., turning the ship's cable end for end, was such work as a ship's carpenter might be required to do at sea under his contract as a seaman cannot be held to exclude him from the benefit of the Act unless the mere fact of his being a seaman is sufficient to debar him, even although he may happen to be employed at the time as a landsman under a contract of a different description.
It is not disputed that the deceased was employed in this factory, but it is said that the operation in which he was actually engaged was not work concerned with the business of the factory. The Sheriff states, however, that as matter of fact he was employed in the work of repair, which is the very business of this so-called factory, for the work of the factory is the repair of the ship.
If so, the only point is that the deceased was doing work which he might have been required to do while at sea and in an emergency; but the mere fact that he might on some other occasion have to do elsewhere in a different capacity—that of a seaman—the work which he was doing when the accident happened to him in the capacity of a workman employed by the undertakers cannot be held to exclude him from the provisions of the Act.
The Court answered the question of law in the affirmative.
Counsel for the Appellants—The Solicitor—General ( Salvesen, K.C.)— R. S. Horne. Agents— Webster, Will, & Co., S.S.C.
Counsel for the Respondent— Watt. K.C.— Wark. Agents— M. J. Brown, Son, & Co., S.S.C.
