Scottish Court of Session Decisions

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Cite as: [1886] ScotLR 23_307, [1886] SLR 23_307

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SCOTTISH_SLR_Court_of_Session

Page: 307↓

Court of Session Inner House First Division.

[Sheriff of Lanarkshire.

Thursday, January 21. 1886.

23 SLR 307

Rothwell

v.

Hutchison and Others.

Subject_1Ship
Subject_2Seaman
Subject_3Working in Face of a Known Danger.
Facts:

A sailor was injured during a voyage through the defective condition of the wheel of the vessel. In defence to an action for damages at his instance, the owners pleaded that having gone on working in the knowledge of the defect he could not claim damages. Held that this was inapplicable to the case of a seaman, who had not the opportunity of declining to work and seeking other employment.

Headnote:

Philip Rothwell, seaman, raised the present action against Peter Hutchison, shipowner, Glasgow, and others, the registered owners of the steamship “Neptune,” to recover £100 for personal injury sustained by him while a seaman on board the defenders' ship. It appeared from the proof that the “Neptune” left Rouen for Glasgow
Page: 308↓
in January 1884, and that during the voyage she encountered rough weather. The pursuer was directed by the captain to take his turn at steering the vessel, and while so engaged he was jerked from his position, lost his grip of the wheel, and was flung on the bridge deck, while in falling his left hand got entangled and crushed in the wheel chain. It appeared that the accident was mainly attributable to the fact that one of the spokes of the wheel was awanting, which caused the pursuer to loose his grip of the wheel in a rough sea. It further appeared that this spoke was awanting at the time when the ship started on her voyage from Glasgow. After the accident the pursuer's hand was dressed, and medical aid was called in on the ship's arrival at Falmouth. Mortification however set in, and it was found necessary ultimately to amputate the thumb and forefinger of his left hand. The pursuer alleged that by the accident he was permanently disabled, and prevented from earning his livelihood as a sailor. After a proof the Sheriff — Substitute ( Guthrie) found that the defenders were responsible for the want of the said spoke, and he assessed the damages at £50 To this interlocutor the Sheriff ( Clark) adhered.

The defenders appealed to the Court of Session, and argued—The evidence showed, not that the spoke was broken when the ship started, but that a spoke was broken on the voyage The true cause of the accident was the captain taking away the second man from the wheel, and leaving only one to manage the steering—this was a cause for which the defenders were not responsible. If the pursuer knew the spoke was awanting, and still continued to work at the wheel, he was acting in the face of a known danger, and could not now claim compensation. In such a case the captain and the seaman were fellow servants, and the owners were not liable. Besides, the defenders employed a duly qualified person to inspect the ship before she started on her voyage, and in so doing they relieved themselves of all responsibility.

Replied for the pursuer—There was clear negligence on the part of the defenders in allowing the ship to start with defective steering gear, and the ship's-husband was not a fellow servant to the extent of precluding the defenders' liability. Under the Merchant Shipping Act 1876 (39 and 40 Vict. cap. 80), sec. 5, there was an implied contract that the ship was seaworthy. Defective steering gear was unseaworthiness both at common law and under the statute. The pursuer dared not have refused to steer on the ground that the spoke was awanting; he had not the option of working or not working in the face of a known danger— M'Gee v. Eglinton Iron Co., June 9, 1883, 10 K. 955; Griffiths v. London and St Katherine Docks, L.R. 12 Q.B.D. 493, aff. 13 QBD 259; Balleny v. Cree, May 23, 1873, 11 Macph. 626.

Judgment:

At advising—

Lord President—[ After narrating the facts and stating that he agreed with the Sheriffs]—An attempt was made by the defenders to maintain that they could avoid all liability for this accident because the pursuer knowing of the broken spoke in the wheel continued to work in the face of a known danger, and so acting he had only himself to blame for what subsequently occurred. No doubt a workman on land is not obliged to work in the face of a known danger; if he resolves to encounter the danger he has himself to blame if he sustains injury—he may refuse to go on until the defect is remedied, and may thereby cause considerable loss not only to himself but also to his employers.

The case, however, of a seaman is very different from that of a workman on land. Is he, because he discovers something defective with the gearing, to strike work? The discipline of a ship is quite inconsistent to such a notion, and if a sailor on board a ship of the mercantile marine were so to act he would in all probability be put in irons while the ship remained at sea, and be sent to prison when she reached the next port. The two cases are quite distinct, and no analogy can be drawn between the present case and that of a workman on land.

Lord Mure—I am of the same opinion on the facts, and I agree with what your Lordship has said as to the law applicable to this case.

Lord Shand—I concur in the judgment, and also with what your Lordships have said.

Another point which the defender tried to make out was that in respect that a fellow servant of the pursuer had been deputed by them to inspect the ship, to look after the steering gear, and generally to put right anything that he found defective, that they were not to be held liable for any neglect by him of these responsible duties. If the defenders could have shown that such an officer had been appointed by them, and that he had entirely neglected his duties, a very difficult and delicate question might have arisen. We are however freed from any such inquiry, as there is nothing from beginning to end of the evidence which can be said to raise this question.

Lord Adam—I concur, and have nothing to add.

The Court pronounced the following interlocutor:—

“Find that the pursuer being a seaman on board the s. s. ‘Neptune’ on a voyage from Rouen to Glasgow, was steering the ship in a rough sea on the 26th of January 1884: Find that while so employed he was lifted by the wheel, and lost his footing on the narrow platform, whereby his left hand was caught in the steering gear and severely injured, so that the thumb and forefinger had afterwards to be amputated: Find that the accident was chiefly due to the want of one of the spokes of the wheel which made the man steering apt to lose grip of the wheel in a rough sea: Find that the said spoke was awanting before the commencement of the voyage: Therefore refuse the appeal, and of new decern against the defenders in favour of the pursuer for Fifty pounds sterling, the amount of damages assessed by the Sheriff.”

Counsel:

Counsel for Pursuer— Young— Younger. Agent— J. A. T. Sturrock, S.S.C.

Counsel for Defenders— Pearson— M'Nair. Agents— J.J. Ross, W.S.
1886