Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 7 (2) of which is quoted supra in rubric, between William Henry Gill, trawl fisherman, Aberdeen, and the Aberdeen Steam Trawling and Fishing Company, Limited, the Sheriff-Substitute at Aberdeen ( Young) awarded compensation, and at the request of the company stated a case for appeal.

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The case set forth the following facts, inter alia—“The respondent is a trawl fisherman in Aberdeen, and has served as such in the employment of the appellants intermittently for some years. The appellants are trawl owners in Aberdeen, and are owners of the steam trawler ‘Strathmartin,’ A 899, belonging to the port of Aberdeen, in which the respondent has served as mate or first fisherman from 7th August 1907 to the date of the accident after mentioned.… On or about 9th September 1907 the said steam trawler ‘Strathmartin’ was fishing in the North Sea about fifteen miles north-east of Fair Isle.… About 10·30 p.m. on said date, while the respondent was engaged removing some ice in the fish room, the vessel rolled in the sea, with the result that a large lump of ice, weighing about two or three cwts., accidentally fell upon and fractured the respondent's right leg.… In the end of the year 1905 a dispute arose between the trawl owners in Aberdeen and the crews of the fishing vessels as to the rate of remuneration of the latter, and the matters in dispute were referred to the Aberdeen Conciliation Board by the Aberdeen Steam Fishing Vessels Owners' Association, Limited, representing the owners and the Port of Hull Fishermen's Protective Society and other bodies representing the men. On 7th December 1905 the Board issued an award fixing and determining the remuneration to be paid to crews for two years from and after 25th October 1905, to be as per the schedule annexed to the said award. The terms of the award are as follows:—‘The Aberdeen Conciliation Board hereby fix and determine that the rates and remuneration to be paid by owners to crews (including all hands) of steam trawl fishing boats sailing from the port of Aberdeen, for two years next ensuing after the 25th day of October 1905, are to be according to the schedule and bonus table hereto subjoined. Schedule.—All fish (excluding livers and roes, which shall be a perquisite of the crews) shall be sold. From the gross price realised there shall be deducted—Salesmen's commission at the rate of 5 per cent.; discount to the fish buyers at the rate of 2d. per £ on said gross price; one penny for every box used for the fish landed; the cost of all labour handling the fish till they are taken over by the buyers; all ice and coals required for the trip on which the fish were caught; all harbour, market, and water dues; the cost of watching, dan outfit, baskets, and stores. The nett balance shall be divided into fourteen shares, whereof the master shall be paid one and three-eighths of such shares. The first fisherman shall be paid one and one-eighth of such shares.… The deck hands shall be paid 5s. per day, and in addition be paid a bonus in terms of the annexed table.…’

“Immediately after the issuing of this award there was printed and circulated a notice giving effect to the findings of the award, and including the following table:—

‘ Wages in Port.

When any vessel is in port cleaning boilers or under repair, and the attendance of the crew or any of them is required, the scale of wages shall be as follows:—

Master	6s.	per day.
Engineer	6s.	per day.
First Fisherman	5s.	per day.

The scale and method of payment specified are binding on all trawl owners in Aberdeen, and upon all members of the crews of vessels belonging to the port. In particular, they are binding on the respondent and the appellants, and were observed by them during the time the respondent was in the appellants' employment. All the fish caught on each trip were sold, and from the gross price realised there was deducted—salesmen's commission at the rate of 5 per cent.; discount to the fish buyers at the rate of 2d. per £ on said gross price; 1d. for every box used for the fish landed; the cost of labour in handling the fish; the cost of ice and coals required for each trip; all harbour, market, and water dues; and the cost of watching, dan outfit, baskets, and stores. The net balance was thereafter divided into fourteen shares, of which the respondent received one and one-eighth shares for each trip.

The settling sheets of the ‘Strathmartin’ from 9th August to 11th September 1907 were based on the award of the Conciliation Board, and correctly set forth the sums paid to the respondent and to the other members of the crew during the said period. The sums so paid to the respondent in respect of that period were as follows:—

For two days' harbour wages, 7th to 9th August	£0	10	0
For ten days' trip ending 19th August	1	18	9
“For seven days' trip ending 26th August	2	4	3
“For eight days' trip ending 3rd September	3	8	10
“For eight days' trip ending 11th September	2	7	4

These sums are respectively the one and one-eighth, payable to the mate or first fisherman, of the fourteen shares into which the net balance of the proceeds of the fish sold was divided, after making the deductions provided for in the said award.

The settling sheet, dated 11th September 1907, which is the settling sheet of the trip on which the accident to the respondent occurred, shows the gross price of the fish sold on that date to be £69, 4s. 6d. From that sum there are deducted various payments, amounting in all to £39, 15s. 3d., these payments representing the deductions to be made in order to ascertain the net balance in terms of the award. The net balance on said statement amounts to £29, 9s. 3d., which in terms of the foregoing notice falls to be divided into fourteen shares. In order to ascertain the value of one share the said sum of £29, 9s. 3d. is divisible by 14.

The item for ‘two days' harbour wages, 7th to 9th August, 10s.,’ referred to above, has reference to a period when the vessel was in port either cleaning boilers or under

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repair, the attendance of the crew being required. In terms of the notice of 25th October 1905 the first fisherman is entitled to be paid in said event 5s. per day; two days' wages thus amounting to 10s.

“No wages to any member of the crew are included among the deductions made from the gross earnings of the vessel before ascertaining the net balance which is divided into fourteen shares, whereof the respondent receives one and one-eighth share.…”

On the facts the Sheriff found “that the respondent while in the appellants' employment as mate or first fisherman on board their trawler ‘Strathmartin,’ sustained on 9th September 1907 personal injuries by accident arising out of and in connection with his employment; that in consequence of the personal injuries so sustained he was incapacitated for work, and unable to earn wages from 9th September 1907; that the amount of compensation payable under the Workmen's Compensation Act 1906 had not been ascertained by agreement between parties; that under his contract of service the respondent was not remunerated by a share or shares in the profits or the gross earnings of the working of the said trawler, but received harbour wages at five shillings a day, and for time at sea wages on a scale of which the said nett balance formed the standard; that his weekly earnings during the period when he was mate or first fisherman in the appellants' employment exceeded £2 per week; that the respondent was a workman in the sense of the Workmen's Compensation Act 1906, and entitled to compensation under the Act, and that the appellants are liable to pay him compensation at the rate of £1 weekly as from 9th September 1907, and I awarded him that weekly allowance accordingly, with expenses against the appellants.”

The question of law for the opinion of the Court was—“Whether on a sound construction of the agreement between the appellants and the respondent, as above set forth, the respondent was at the time of the accident a member of the crew of a fishing vessel, and remunerated by a share or shares in the profits or the gross earnings of the working of such vessel, and is thereby excluded by section 7 (2) of the Workmen's Compensation Act 1906 from claiming compensation under said Act.”

Argued for the appellants—The object of section 7 (2) was to differentiate between seamen earning a fixed wage and seamen whose remuneration depended upon the profits of the venture, and who might in some instances obtain a large sum of money and in other instances none. The respondent clearly fell within the latter class, and was therefore excluded from the benefits of the Act.

Argued for the respondent—The fund out of which the respondent was remunerated did not represent “profits,” inasmuch as it was impossible to tell whether there were any “profits” until deductions had been made for wages, depreciation, interest on capital, &c. It did not represent “gross earnings,” because certain deductions, e.g., commissions to salesmen, harbour dues, &c., had in fact been made. It was, in truth, a fund which existed solely for the purpose of calculating the wages due to the captain and other officers. Section 7 (2) was meant to apply only to a partner or joint-ad venturer— cf. Ellis v. Joseph Ellis & Co., [1905] 1 KB 324. The respondent was a seaman under a contract of service, whose wages were “contracted for by the voyage, or trip, or the season.” See Merchant Shipping Act 1894 (57 and 58 Vict. c. 60), sec. 383.