Scottish Court of Session Decisions

Mrs Jeannie Peters or Burgoyne, 13 Skene Street, Aberdeen, widow of John Darling Burgoyne, raised an action as an individual and as tutor to her pupil child against Andrew Walker, registered and managing owner of the steam trawler “Star of Hope,” to recover damages for the death of the said John Darling Burgoyne.

The deceased, who was a hatchery attendant in the employment of the Fishery Board for Scotland, was, under an arrangement between his employers and the defender, on board the defender's trawler collecting specimens of fish for his employers, when the trawler stranded, and as a consequence he perished from exposure. With respect to the arrangement between the Fishery Board and the defender the pursuer made the following averments, which were subsequently held to be accurate:—“(Cond. 2) In pursuance of their scientific investigations the officials of the Fishery Board for Scotland in charge of the Board's station at Nigg from time to time arrange with the owners of trawl-boats fishing from the port of Aberdeen to carry on board their boats an employee of the Fishery Board, who is allowed to collect from the catches, and retain for the use of the Board's officials, specimens of different kinds of fish. In return for this service, trawl-boats carrying a Fishery Board employee are allowed to fish within restricted waters, and are allowed to retain the catches got therein without rendering themselves liable to a charge of illegal trawling.… Neither the Fishery Board nor its representatives on board such trawl-boats, nor anyone in its employment, has, as a consequence of the arrangement referred to, any concern with the navigation or management of any trawl—boats so engaged.… (Cond. 4) In or about the beginning of December 1905 the officials of the Fishery Board at Nigg arranged with the defender, or with his servant, the skipper of the ‘Star of Hope,’ to take pursuer's husband to sea for the purpose of collecting specimens of fish, as mentioned in condescendence 2, and on the morning of the 4th of December 1905, the vessel left the port of Aberdeen and proceeded to sea with pursuer's husband on board for the purpose of fishing under the arrangement above condescended on.…”

The defender pleaded, inter alia—“(2) The pursuer's husband having lost his life, not through the negligence of the defender or that of anyone for whom he is responsible, he is entitled to be assoilzied from the conclusions of this action, with expenses. (3) The vessel in question, with her master and crew, having on the occasion condescended upon, been outwith the control and possession of the defender, he is not responsible to the pursuer for the acts or defaults of her master or crew at that time, and is entitled to absolvitor, with expenses. (4) Separatim—The said John Darling Burgoyne and the skipper of the ‘Star of Hope’ having, on the occasion in question, been engaged in the same work, on the same vessel, the defender is, in the circumstances founded on, under no liability to pursuer in respect of her husband's death, and is therefore entitled to absolvitor, with expenses.”

On 11th January 1907 the Sheriff-Substitute ( Henderson Begg), after a proof, pronounced this interlocutor—“Finds in fact (1) that on 5th December 1905, about l·30 a.m., the steam trawler ‘Star of Hope,’ belonging to the defender, stranded on the coast near Collieston, owing to the recklessness and negligence of the skipper of the vessel; (2) that as a consequence the pursuer's husband John Darling Burgoyne, a servant of the Fishery Board of Scotland, perished from exposure about six hours later; and (3) that at and before the time of stranding, the skipper and the said John Darling Burgoyne were engaged trawling for fish under an arrangement whereby the skipper remained the servant of the defender, and the said John Darling Burgoyne remained the servant of the Fishery Board of Scotland: Finds in law that the defender is liable in damages to the pursuer as an individual, and also as tutor for the pupil John Darling Burgoyne, the child of the pursuer and of her said deceased husband: Assesses the damages due to the pursuer as an individual at £300 sterling, and the damages due to the pursuer as tutor foresaid at the sum of £150 sterling: Therefore ordains the defender to pay to the pursuer as an individual the said sum of £300 sterling, and to pay to the pursuer as tutor foresaid the said sum of £150 sterling.…”

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Note.—“… [ After reviewing the evidence, which showed the recklessness and negligence of the skipper] … The arrangement between the Fishery Board and the defender was a very peculiar one. I think that it is accurately set forth in articles 2 and 4 of the pursuer's condescendence.… The chief question in the present case is whether that arrangement involved the doctrine of collaborateur as between Burgoyne and the skipper; and the answer to the question admittedly depends on whether the two men are to be held to have been in the service of a common master at the time of the accident— Johnson v. Lindsay & Co., L.R. (1891), A. C. 371. The defender maintains that while Burgoyne continued throughout to be in the service of the Fishery Board, the skipper had become pro hac vice the servant of the Board, the vessel, with skipper and crew, having passed from the possession and control of the defender into the possession and control of the Board. Of course, from the time of leaving port on the voyage in question, the vessel was outwith the personal possession and control of the defender, just as she would have been in any ordinary trawling cruise in the North Sea. But what the defender means is that, through Burgoyne being on board the vessel, the Fishery Board possessed the vessel and controlled the master and crew. When one looks into the matter, however, the control exercised by Burgoyne turns out to have been of a very limited character. He was entitled to indicate the places in Aberdeen Bay where the trawling operations were to be conducted, and to prescribe the length of the drags, so as to get live fish. But I do not see that he had any further control of the skipper and crew; and, of course, he had no right to interfere with the navigation of the vessel. The skipper was on board, not merely to navigate the vessel, but also to look after the defender's interest in the fish caught, the defender's share of the fish being generally about 90 per cent. of the catch. Of course, the skipper and crew were engaged and paid by the defender, and Burgoyne could not have dismissed any of them. In these circumstances I do not think that any of the authorities to which I was referred in the course of the extremely able argument to which I had the pleasure of listening, would justify me in holding that the skipper was the servant of the Fishery Board pro hac vice. Adapting the words of Lord Watson, in the case above mentioned, to the present case, I hold that the circumstances are not such as to show conclusively that the skipper submitted himself to the control of the Fishery Board, and either expressly or impliedly consented to accept the Board as his master for the purpose of common employment—trawling for fish.

“The other authorities to which I refer are— Rourke v. White Moss Colliery Company, 1877, 2 C.P. Div. 205; Donovan v. Laing, 1893, 1 Q.B. 629; Cairns v. Clyde Navigation Trustees, 1898, 25 R. 1021; and Connelly v. Clyde Navigation Trustees, 1902, 5 F. 8.

The defender's procurator further founded on the cases mentioned in Abbott on Shipping, 14th ed., page 65, and Maclachlan on Shipping, 4th ed. (1892), page 354 et seq., in regard to a contract of locatio navis et operarum magistri et nauticorum. But the interest which the defender retained in the proceeds of the cruise now in question seems to me to render these cases inapplicable.

An alternative argument put forward by the defender's procurator was that Burgoyne occupied the same legal position as a guest or licensee on board the vessel, taking the risk of negligence on the part of his host's servants. But what seems to me fatal to this argument is the fact that, under the arrangement between the defender and the Fishery Board, Burgoyne was as much entitled to be on board as the skipper and crew.

Lastly, the defender's procurator argued that the defender and the Fishery Board should be regarded as joint-adventurers or partners in a trawling speculation, to which the Fishery Board contributed Burgoyne, with the right to trawl in closed waters, and the defender contributed all else. I can hardly accept this as a correct description of the arrangement between the parties; and there is nothing in the evidence to suggest that either the skipper or Burgoyne accepted the supposed joint-adventurers or partners as his new masters. …”

The defender appealed, and argued—(1) On the evidence there was no negligence on the part of the skipper of the vessel. (2) In any event the skipper, though the general servant of the defender, was not at the time of the stranding of the vessel his servant, but the servant of the Fishery Board. The servant of A might become pro tempore and pro hac vice the servant of B, so as to exclude the liability of A for injury, occasioned through the servant's negligence, to an employee of B— Johnson v. Lindsay & Company, [1891] AC 371, per Lords Herschell and Watson, pp. 377, 382; Rourke v. White Moss Colliery Company, 1877, 2 C.P.D. 205; Donovan v. Laing, Wharton and Down Construction Syndicate, Limited, [1893] 1 QB 629; Connelly v. Clyde Navigation Trustees, October 16, 1902, 5 F. 8, 40 S.L.R. 14; M'Fall v. Adams & Company, 1907, S.C. 367, 44 S.L.R. 259; cf. Cairns v. Clyde Navigation Trustees, June 17, 1898, 25 R. 1021, 35 S.L.R. 808. The question in whose employment the servant was for the time being depended on the power of controlling him in the matter in which he was engaged, and that in turn depended on two questions—(1) What was the nature of the work being executed? and (2) by whom was the work being executed? Here the work was fishing or trawling (not navigation) for the benefit of the Fishery Board, and it was being executed by the Board with hired plant. Under the bye-laws framed by the Fishery Board in pursuance of the Herring Fishery (Scotland) Act 1889 (52 and 53 Vict. cap. 23), sec. 6 (1) and (2), fishing within the prohibited areas could be conducted only by persons who were in the service of the Board or who had permission in writing. There was no written

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permission here. Therefore the trawler and its master were pro hac vice in the service of the Fishery Board, otherwise the fishing would have been illegal. The defender also argued alternatively that if the control of the work was not in the Fishery Board, then either (1) it was in the hands of the defender, or (2) it was a joint adventure. In the first event Burgoyne was in the service of the defender; in the second he and the master of the vessel were in the service of the joint adventurers, and in either event the doctrine of collaborateur applied.

Counsel for the pursuer were not called on.