Scottish Court of Session Decisions

Bernard M'Lauchlan, dock labourer, 69 Piccadilly Street, Anderston, Glasgow, brought an action of damages for personal injuries against H. Hogarth & Son, shipowners, 24 St Enoch's Square, Glasgow.

He averred, inter alia — “Cond. (2) On 2nd August 1910 pursuer was at work on board the “Baron Herries” in Queen's Dock, Glasgow. Said vessel was loaded with copper ore, and pursuer was employed by James Adair, stevedore, 20 Queen's Dock, in the discharging of said vessel, which was carried on by filling said ore into buckets, and thereafter discharging them over the side of the ship. Said vessel at the time of the accident to pursuer was under defenders' control, and pursuer's employer, the said James Adair, had contracted with defenders to discharge said ship. Defenders were the managing owners of said vessel. They engaged and paid the crew of same on their own behalf, and said vessel was sailed under their flag, which had their name or their initials thereon. Cond. (3) On said date pursuer in the course of his duty had to go to the lower hold to get the ore from the combings round the hatch mouth. Whilst he was going to said lower hold he stepped into a scuttle which was uncovered, and pursuer was thrown forward cutting his upper lip severely through its coming into violent contact with the blade of the propeller of said vessel, and injuring the pursuer as after mentioned.”

The defenders pleaded—“(1) The averments of the pursuer not being relevant or sufficient to sustain his pleas, the action should be dismissed with expenses.”

The defenders produced an excerpt from the Register of Shipping which disclosed the fact that the Kelvin Shipping Company, Limited, Glasgow, were the registered owners of the “Baron Herries.”

On 29th November 1910 the Sheriff-Substitute ( Welsh) before answer allowed the parties a proof of their averments.

On 5th December 1910 the pursuer required the cause to be remitted to the Court of Session for jury trial. He subsequently lodged an issue.

The defenders objected to the relevancy of the action, and argued — The case was irrelevant against the defenders, who, as the Register of Shipping showed, were not the owners of the vessel, nor were they even averred to be so. They were averred to be managing owners. A managing owner or ship's husband was the agent for the owners. It was his duty to look after matters on shore, e.g., the outfit and repair of the ship, contracts of affreightment — Bell's Prin. 449. He had absolutely no duties to perform on board the ship. The pursuer's accident happened on board. He must therefore make his claim against the person whose fault was actually responsible for the accident, or against the owners of the vessel. Taylor v. Rutherford, March 17, 1888, 15 R. 608, 25 S.L.R. 430, was referred to. Moreover, the averments of accident were irrelevant for want of specification. Further, if the case were to proceed it should go back to the Sheriff for proof, as the injuries were of a trifling nature.

Argued for pursuer—The case was relevant. When the pursuer averred that the defenders were managing owners of the vessel on their own behalf, he had done enough. He averred that the vessel was under the defenders' control, and that the accident was their fault. Further, the accident was averred with sufficient specification. The case should not be sent back to the Sheriff but should go to jury trial. The Court had a wide discretionary power in this matter— Sharples v. Yuill & Company, May 23, 1905, 7 F. 657, 42 S.L.R. 538.