Scottish Court of Session Decisions

This was an action at the instance of Samuel Tyrrell, engineer, 310 Baltic Street, Bridgeton, Glasgow, against Paton & Hendry, shipbrokers, 142 St Vincent Street, Glasgow, managers of the s.s. “Turtle,” as representing her owners, in which he sued for the sum of £500 in name of damages for I personal injury.

Page: 90↓

The pursuer made the following averments—“(Cond. 2) On or about Tuesday, 16th February 1904 the pursuer was engaged by the defenders at Glasgow as engineer on the ‘Turtle.’ The boat left for Warrenpoint in Ireland with a cargo of coal, and having discharged her cargo there she left for Maryport on or about Thursday night, 18th September. (Cond. 3) On Friday morning, 19th February 1904, about 4 a.m., the pursuer was requested by the mate, who was at the wheel, to go forward and call a sailor to relieve him from his duty. The pursuer went forward as desired, and in the course of doing so he fell into the hold of the vessel through the middle hatches, which were uncovered.

… Explained and averred that it was very dark at the time of the accident to the pursuer. (Cond. 4) The mouth of the hold or hatchway is about 30 feet long by 12 feet broad or thereby, and in it there are two iron thwartship beams and three fore and aft beams, and the hatches were placed on the top of the latter. At the time of the accident the aft hatches were on, but not the middle hatches. The reason why the hatches were off was that, as the pursuer has since learned, the forward thwartship beam was bent and twisted, with the result that the centre fore and aft beam, which is interposed between the two thwartship beams, was too short and would not catch in the socket in the forward thwartship beam. In these circumstances the middle hatches could not be put on, but the pursuer was unaware of this at the time.

… It is admitted that the hatches were laid on the top of the coal cargo during the voyage from Glasgow to Warrenpoint, being supported by the coal.… (Cond. 6) For the pursuer's injuries the defenders are responsible. It was their duty to see that the boat and its equipment were in a proper, safe, and seaworthy condition. In particular, it was their duty to see that the hatches, and the thwartship and fore and aft beams on which they rested, were in good and sufficient order. This the defenders culpably failed to do. The thwartship beam was, as already stated, bent, twisted, and defective, and the centre fore and aft beam was too short. This state of matters rendered it impossible to put the centre hatches on, with the result that a trap existed on the boat, which particularly during the night formed a danger to which the defenders' employees were exposed. It was the duty of the defenders to have repaired the beams referred to, or in any event to have warned their employees of the danger which this defective condition created. This the defenders culpably omitted to do. They knew, or should have known, the defective state of their boat, as the pursuer has ascertained and avers that it had been in the same condition for a considerable time previously, and that an accident of a similar nature had in consequence thereof occurred on a previous voyage. The pursuer's injuries were a natural and probable result of the defenders' negligence. After the pursuer was injured the thwartship beams and the fore and aft beams were altered. One thwartship beam and two fore and aft beams in good condition were used, instead of the two thwartship and three fore and aft beams in use previously. These formed a good and sufficient support for the hatches.”

In answer the defenders averred that the accident happened through the pursuer's own fault; that appliances were on board for covering the hatches; that they had been used on the voyage from Glasgow to Warrenpoint referred to in Cond. 2, and that if they were not on the hold at the time of the accident it was owing to the fault of the master or of the fellow-servants of the pursuer.

The defenders pleaded, inter alia—“(1) The pursuer's averments are irrelevant.”

On 25th February 1905 the Lord Ordinary ( Dundas) sustained the first plea-in-law for the defenders and dismissed the action.

Opinion—“The pursuer states that on 16th February 1904 he was engaged by the defenders as an engineer on board the cargo-boat ‘Turtle,’ of which the defenders, who are shipbrokers, are admittedly managers and represent the owners. About four a.m. on 19th February, the pursuer, being as he avers requested by the mate, who was at the wheel, to go forward and call a sailor to relieve him from his duty, went forward as desired, and in the course of doing so fell into the hold of the vessel through the middle hatches, which were uncovered, and sustained injuries in respect of which he now sues for £500 of damages. The pursuer explains, and there seems to be no doubt, that the reason these hatches were off was that the forward thwartship beam was bent and twisted, which rendered it impossible to utilise the system of beams upon which the hatches ought to rest. This defect in the beam had, the pursuer says, existed ‘for a considerable time previously,’ and had caused an accident on a previous voyage. The nature of the ‘fault’ with which the pursuer charges the defenders is set out in article 6 of the condescendence. He says it was their duty to see that the boat and its equipment were in a proper, safe, and seaworthy condition, and in particular to see that the hatches and the beams on which they rested were in good and sufficient order. He alleges that the defenders culpably failed in this duty, the said thwartship beam being bent, twisted, and defective, and that the impossibility of putting the centre hatches on resulted in the existence of a ‘trap,’ particularly at night. It is averred that the defenders' duty was to have repaired the beam or to have ‘warned their employees of the danger,’ and that they ‘ knew or should have known the defective state of their boat.’

“In my opinion these averments fall distinctly short of relevancy. It seems strange that a seaman who had been on board the vessel for several days, during which the said hatch lay uncovered, should not have been able to avoid any chance of danger there might be in the existence of such a patent condition of affairs. But apart from

Page: 91↓

that, I hold the pursuer's averments to be irrelevant upon the authority of Gordon v. Pyper, 20 R. (H.L.) 23, which is not, in my judgment, distinguishable in any material particular from the present. There a seaman on board a trawler alleged that while helping to raise the trawl he was injured in consequence of the breaking of a rope or ropes, which was due to defective splicing. The action was dismissed by the Court as irrelevant, and the House of Lords affirmed. There was nothing in the pursuer's statement to show that the splicing was defective at the time when the vessel was equipped. In the present case no such suggestion is made in regard to the bent beam, and the fact that the twist is said to have been in existence before this particular voyage began seems to me to make no difference. I refer to the opinion of the Lord Chancellor (Herschell) in Gordons case and also to the additional observation of Lord Watson, that ‘even if that allegation had been made’ (viz, that the splicing was originally defective) ‘I should not nave been prepared to hold that a mere defect in the splicing of the tackle, which is obvious, constitutes any default of duty on the part of the shipowner if he provides the master and crew with proper material for correcting the defect in the course of the voyage.’ In the present case the pursuer makes no suggestion, and it would seem difficult to make such, that the master and crew had not on board the means either of straightening the obvious twist in this beam, or of protecting the edge of the hold if their combing was not of a sufficient nature to secure those on board from danger. It seems to me that the pursuer has not set forth any relevant case against the brokers as representing the owners, and I shall therefore sustain the defenders' first plea and dismiss the action with expenses.”

The pursuer reclaimed.

Argued for the reclaimer—The pursuer's averments were clearly relevant. He averred a defect in the permanent condition of the ship—a defect existing during the previous voyage. It was also averred that the defenders were aware of its existence. It was clearly a case for inquiry. The judgment of the Lord Ordinary proceeded on two grounds—(1) that the defect was patent to the pursuer, and was an obvious defect. The Lord Ordinary was in error in so thinking, for the defect could not be discovered till the accident happened. The statement of the pursuer was that the accident happened at 4 a.m. on a very dark morning in February, so that the danger was not, on the pursuer's statement, a patent one. Moreover, whether a danger was patent or not was a subject for inquiry. (2) The Lord Ordinary was in error in thinking that this case was governed by that of Gordon v. Pyper, November 22, 1892, 20 R. (H.L.) 23.That case was clearly distinguishable. The defect which caused the accident there was obvious, and it had emerged during the voyage. Here the ship was alleged to have been defective before the voyage in question began, for the hatches could not be put on owing to the state of the forward thwartship beam. That was a defect for which the owners were liable, and was not the fault of a fellow-servant.

Argued for respondents—The duty of the respondents was to supply a seaworthy ship. That had been done. The defects alleged were such as the crew could and ought to have remedied. The owners were not responsible for such defects— Steel & Craig v. State Line Steamship Company, July 20, 1877, 4 R. (H.L.) 103, 14 S.L.R. 734; Healey v. Pinkney & Sons' Steamship Company, [1894] AC 222. If there were fault here it was fault on the part of a fellow-servant, for which the owners were not responsible— Hedley v. Pinkney, cit. sup.