Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1897 in the Sheriff Court at Glasgow Mrs Agnes Nisbet or Stewart,

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widow of the deceased Robert Stewart, coal porter, as tutor and administrator-in-law to her pupil children, Agnes, Nathaniel, and Robert Stewart, and as an individual, and Margaret Stewart, the deceased's daughter, claimed compensation from the Dublin and Glasgow Steam Packet Company, Glasgow, for the death of the said Robert Stewart.

On 23rd June 1902 the Sheriff-Substitute ( Guthrie) found the Steam Packet Company liable, and assessed the compensation at £187, 4s., with interest at 5 per cent. from the date of citation. Against this decision the Steam Packet Company appealed, and a case was stated.

The following facts were found to have been admitted or proved:—(3) “That the Darngavil Coal Company, Limited, colliery proprietors, were under contract with appellants to supply them with coal for bunkering their vessels, and that it was a condition of the contract of sale that the said Company was to deliver such coal on board appellants' vessels free of charge. (4) That in carrying out said contract the Darngavil Company brought the coal in carts to the quay opposite the berth where the steamers were to lie for loading and discharging cargo and passengers, and that the Darngavil Company, for the purpose of having the coal so brought to the quay trimmed and transported on board the appellants' steamers, contracted with John M'Keown, coal porter, for that work, and that he in turn employed men to do this as required from time to time. (5) That trimming consists of putting the coal up in a heap to keep it together, and to prevent it from falling over the edge of the wharf. (6) That the coal is transported on board in ordinary wheel-barrows, which are wheeled along planks extending from the shore to the ship, and in case of one of the appellants' steamers by shoots, said barrows, planks, and plant being the property of the appellants. (7) That on 23rd July 1901 the Darngavil Coal Company, in anticipation of the arrival at berth No. 38 of Glasgow Harbour of one of the appellants' steamers on board which they had to deliver coal under and in terms of their contract, sent some coal in carts to said berth, and that the deceased Robert Stewart, who was employed by M'Keown, was there receiving the coal from the carts, it being part of his duty to trim it on the wharf, and when the steamer arrived to wheel same on board. (8) That after part of the coal coming forward had been deposited on the quay there was an interval before another cart arrived, and that during this interval the deceased, while waiting for the next cart of coal or the steamer, whichever might first arrive, and standing on the space between the coal and the river, slipped and fell into the water and was drowned. (9) That the steamer upon which the coal was to be loaded was at that time coming up the river Clyde in the course of her voyage from Dublin to Glasgow, and arrived at said berth about an hour after the accident. (10) That the appellants have had for many years said berth No. 38 allotted to them by the Clyde Trustees, and they have used it for the reception of their vessels and for loading and unloading the same. The appellants have a box or office at said berth, and keep clerks and servants constantly working there for the reception of cargo being taken to and from their various steamers. The dues paid to the Clyde Trustees in respect of ship and goods are paid in the first instance by the appellants, and refunded by the cargo owners so far as laid upon cargo. The same berth is used also by the Isle of Man Steamship Company, who have also a box or office there, and when it is not required by either of these companies the harbour-master allows occasional trading vessels which can load or discharge within a few hours to use it, but so as not to interfere with the requirements of the said regular lines of steamers.”

On the facts stated the Sheriff-Substitute found—“(1) That the appellants were occupiers at the time of the berth No. 38 of Glasgow Harbour, and that it is a factory in the sense of the Workmen's Compensation Act 1897; and (2) That the deceased Robert Stewart was employed by John M'Keown, who was a contractor with the Darngavil Coal Company, who were contractors with the appellants for loading their steamers with bunker coal, and that the appellants are liable to pay compensation for the death of the said Robert Stewart in respect of the 4th section of the said Act.”

The questions of law were—“(1) Whether in the circumstances the case was within the scope of the Workmen's Compensation Act 1897. (2) Whether on the facts found proved the appellants were occupiers of the quay, and therefore of a factory within the meaning of the Act. (3) Whether in the circumstances the appellants are liable as being within the scope of the 4th section of said Act. (4) Whether on the facts proved the accident arose out of and in the course of the deceased's employment.”

Argued for the appellants— On Question (2)—At the time of the accident the appellants were not in actual use and occupation of the quay. Before they could be said to be in that position they would require to be actually using the quay for the purpose of loading or unloading the ship. In this case the ship did not arrive till an hour after the accident happened. Further, the berth was not used solely by the appellants. It was also used by the Isle of Man Steamship Company and by anyone else to whom the harbour-master chose to assign it. The use of this berth by the appellants and others depended solely on his pleasure. On Question (3)—Supplying their vessels with coal was no part of the business of the appellants. It was clearly ancillary to it. Such work stood in the same position as supplying provisions for the crew, and it was an abuse of language to say that doing so was part of or a process in the business of the appellants— Wrigley v. Bagley & Wright [1901], 1 K.B. 780; Dundee and Arbroath Joint Railway Company v. Carlin, May 31, 1901, 3 F. 843, 38 S.L.R. 635.

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Argued for respondents— On Question (2)—The appellants were in occupation of the quay at the time of the accident. The quay was occupied in connection with their ships, they had an office with clerks, &c., on the quay, and work was being carried on there by a contractor on their behalf. It was not material that the ship should be alongside the quay. Whether or not a particular ship happened to be alongside had nothing to do with the matter so long as the accident happened on the quay in connection with their business. The fact that this quay was sometimes used by others did not signify. A place might be in the occupation in terms of the Act of two different persons at the same time— Bartell v. W. Gray & Co. [1902], 1 K.B. 225. On Question (3)—Putting coal on board was necessary before a steam vessel could proceed. It was therefore part of the appellants' business— M'Govern v. Cooper & Co., November 30, 1901, 4 F. 249, 39 S.L.R. 102.