Scottish Court of Session Decisions

An arbitration was held in the Sheriff Court at Peterhead, under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), between Mrs Christina Strachan or Buchan, 7 High Street, Buchanhaven, Peterhead, appellant, and the Scottish Steam Herring Fishing Company, Limited, respondents, to fix the amount of compensation payable by the respondents to the appellant in respect of the death of the husband of the latter in consequence of an accident sustained whilst in their employment.

The appellant being dissatisfied with the decision of the Sheriff-Substitute ( Young) brought a Case for the opinion of the Second Division of the Court of Session.

The Case stated—“This is an arbitration instituted by initial writ before the Sheriff at the instance of the appellant against the respondents, under which the appellant, for herself as an individual and as tutrix and administatrix for her said pupil children, craves an award of compensation in respect of the death of her husband George Buchan

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above designed, in terms of the Workmen's Compensation Act 1906.

The following are the facts admitted or proved, viz.—1. That the appellant Mrs Christina Strachan or Buchan is the widow of George Buchan, who followed the occupation of fireman on a steam drifter, and the respondents are the Scottish Steam Herring Fishing Company, Limited, having their registered office at Peterhead. 2. That the appellant claims £300 as compensation for herself and her pupil children in respect of the death of her husband by a fatal accident which happened to him at Fraserburgh harbour on Monday, 7th February 1916, while he was in the employment of the respondents as fireman of their steam drifter the s.s. ‘Petunia.’ 3. That in the forenoon of 7th February the ‘Petunia,’ which was on her way from Peterhead to the herring fishing on the west coast, put into Fraserburgh on account of some engine trouble and took up a berth in the south harbour there, being moored to the outside of the s.s. ‘Speedwell,’ which was lying next the quay. 4. That the only way of access to the ‘Petunia’ from the quay was had by descending to the ‘Speedwell’ by means of an iron ladder fixed to the face of the quay, and then by crossing the deck of the ‘Speedwell’ to the ‘Petunia,’ which lay alongside. 5. That in the evening of the said 7th of February the deceased George Buchan went ashore between six and seven o'clock with leave, but for his own purposes and not on ship's business, and he returned between eight and nine to the place where the ‘Speedwell’ and the ‘Petunia’ were berthed. 6. That when on shore the deceased had some refreshment but he was not the worse of drink, and on his return he was sober and able to take care of himself. 7. That the night was dark, the surface of the quay was extremely slippery through hard frost, and there was a deal of ice at the top of the ladder. 8. That the deceased had reached the access to the ‘Speedwell’ and was endeavouring to find his way down by the ladder when he slipped or lost his foothold and fell over upon the deck of the ‘Speedwell’ at a point abreast of the ladder. 9. That in consequence of his fall the deceased received serious injuries and died almost immediately the same night. 10. That in the respondents' service the deceased as one of the crew of the ‘Petunia’ had before and at the time of his death a fixed wage of 35s. a-week in addition to food, which was of the value of 10s. weekly, and along with the engineer and cook he was further entitled to a one-third share of ‘scum’ and ‘stoker’ as part of his remuneration. 11. That drifters belonging to Peterhead like the ‘Petunia’ are engaged in fishing for herrings the whole year round practically, and there are usually employed a crew of nine men—the skipper and four deck hands and the engineer, fireman, and cook. 12. That in drift-net fishing a string or fleet of nets, connected together and to the drifter by a bush-rope or strong warp, is passed or shot out in a long line extending, it may be, for more than a mile or for nearly two from the vessel, and the fish are caught not by being enclosed in a sweep of the nets but by being immeshed—that is, by running their heads and gills into the meshes of the nets. 13. That when the nets are being raised from the sea and taken on board the drifter, which moves slowly alongside the fleet of nets with that object, it happens that some of the fish captured fall from the meshes in which they have been caught, and it is the custom for the engineer, who is on deck for the purpose, to intercept these fish as they fall, or pick them up out of the water with a net attached to a pole, the take so made being known as the ‘scum.’ 14. That while the engineer is engaged in seeing to the gathering of the ‘scum’ the fireman attends to the coiling of the bush rope at the capstan as the nets are drawn on board. 15. That in practice, as well as in accordance with express agreement between the respondents and the other owners of steam-drifters at Peterhead and the Peterhead branch of the Scottish Steam Fishing Vessels Enginemen and Firemen's Union, the ‘scum’ is divisible in equal proportions between the engineer, the fireman, and the cook as part of their remuneration, and but for this right to the ‘scum’ a higher fixed wage would require to be paid. 16. That the quantity of the ‘scum’ depends in a great measure on the success or nonsuccess of the fishing, and the net proceeds obtained from the sale of the ‘scum’ are of considerable value, and form a substantial portion of the remuneration of each man entitled to a share. 17. That after the nets have been put out, and while the drifter is riding at them, it is usual for those on board to fish for white fish with hand lines to which an instrument called a ripper is attached, and the take of fish which may thus be made by the engineer, and fireman, and cook is called stoker, and is regarded as belonging to them in equal shares, and as forming also a part of their remuneration. 18. That the value of this ‘stoker’ is ordinarily of some consequence, but of considerably less account than that of the ‘scum.’ 19. That the others of the crew have also a ‘stoker,’ which consists of white fish caught by them in like manner with hand lines while the fleet of nets is on the drift. 20. That the ‘scum’ is disposed of by fish-salesmen employed by the owners of the drifter, and the proceeds of the sale, after deduction of expenses, are divided equally among the three men entitled to a share. 21. That the owners' books show the ‘scum’ as part of the catch of herrings, but the value of the ‘scum’ is stated as a cross-entry, and is not treated as income in ascertaining net profits; and 22. That the ‘scum,’ if not also the ‘stoker,’ to which the deceased was entitled in consideration of his services, formed a portion of the gross earnings of the drifter ‘Petunia’ on which he was employed as fireman.

On the foregoing facts I held that the accident to the deceased George Buchan arose out of and in the course of his employment, but that as he was remunerated by a share in the gross earnings of the ‘Petunia,’ within the meaning of section 7 (2) of the Workmen's Compensation Act 1906, the respondents,

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his employers, are not liable in compensation. 1 found no expenses due to or by either party.

There is no dispute now between the parties as to the condition of the deceased George Buchan at the time he met with his accident, or as to whether the accident arose out of and in the course of his employment.”

The question of law for the opinion of the Court was—“Whether I was entitled to hold that the deceased George Buchan was remunerated by a share in the gross earnings of the ‘Petunia,’ within the meaning of section 7 (2) of the Workmen's Compensation Act 1906.”

“ Note.—The supposition has been put forward that the accident which unfortunately befell the deceased was due to his being under the influence of drink at the time and not fit to look after himself, but I am satisfied on the evidence that this was not the case. So far as I can see there is no good reason for attributing the event to intoxication.

The true cause, it seems to me, was a risk incidental to his employment. The night was very dark and there was a keen frost. Then there was the slipperiness of the quay, and in particular its icy state at the place where the ladder formed the access to the ‘Speedwell’ and by it to the ‘Petunia.’ The dangerous condition of things indeed affords a natural and reasonable explanation of the occurrence. The deceased, it must be noted, had gone ashore with leave. He was returning for the purpose of getting on board his ship as he was bound to do. Having reached the ladder he was attempting to descend when he slipped and fell. I think his fall was due to a risk attending the use of the means of access to his ship, and may thus be said to have arisen out of his employment—v. Kitchenham v. Owners of s. s. ‘Johannesburg,’ (1911) 1 KB 523, affirmed 1911 AC 417, 49 S.L.R. 626, and Moore v. Manchester Liners Limited, (1909) AC 523, 48 S.L.R. 709.

In my opinion then there would have been good ground for compensation in this case were it not for the terms of section 7 (2) of the Workmen's Compensation Act 1906. It provides that the Act ‘shall not apply to such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross earnings of the working of such vessel.’ The deceased was a member of the crew of the ‘Petunia,’ and was remunerated for his services not merely by receiving a fixed wage of 35s. and his board, but by having a right to ‘scum’ and ‘stoker.’ There may be some doubt as to whether the ‘stoker,’ which consists of white fish caught with the ripper, is part of the earnings of the fishing industry as carried out by the vessel. But the ‘scum,’ which is the important item and a valuable one, is in my view part of the catch of herrings captured in the fleet of nets, and is therefore part of the drifter's earnings. When at the time that the catch is being brought on board the engineer as one of the crew takes his stand on deck and assists in the operation by recovering the herrings which may fall from the meshes, he is making an effort—in his own interest and that of others of the crew it may be—to preserve the catch and to lose as few herrings as possible. If there be no catch there will be no ‘scum.’ The ‘scum’ is simply that part of the catch which drops and is recovered as the herrings are being taken on board; and in obtaining a share of the ‘scum’ a fireman is I think getting a share in the gross earnings of the vessel. Reference may be made to two decisions in the English Court of Appeal— Stephenson v. Rossall Fishing Company, (1915) 84 L.J., K.B. 677, and Burman v. Zodiac Steam Fishing Company, (1914) 3 KB 1039.”

The appellant argued—The scum was a mere perquisite, not a remuneration. It was not part of the catch of the vessel. It was entirely due to the private energies of the engineer and the fireman acting outwith the scope of their ordinary duties. The case should be remitted to the Sheriff-Substitute. Counsel referred to Ayr Steam Shipping Company v. Lendrum, 1914 S.C. (H.L.) 91, per Dunedin at 102, 51 S.L.R. 783; Woolfe v. Colquhoun, 1912 S. C. 1190, 49 S. L. R. 911; Costello v. Pigeon, 1913 AC 407, per Halsbury at p. 412, 50 S.L.R. 976; Burman v. Zodiac Steam Fishing Company, (1914) 3 KB 1039; Gill v. Aberdeen Steam Trawling and Fishing Company, 1908 S.C. 328, 45 S.L.R. 247; M'Kenna v. Niddrie and Benhar Coal Company, 1916 S.C. 1, 53 S.L.R. 1.

The respondents argued—It required express contract to take the profits accruing from the “scum” and “stoker” out of the gross earnings of the vessel. The “scum” primarily belonged to the owners of the drifter.