Scottish Court of Session Decisions

Jemima Sutherland or Halvorsen, 21 Prince Regent Street, Leith, for herself and as guardian of her pupil son Neil Theodore Halvorsen, claimed compensation under the Workmen's Compensation Act 1906 from J. T. Salvesen and others, shipowners, Leith, in respect of the death of her husband Theodore Halvorsen, employed as an engineer on one of the defenders' vessels.

The Sheriff-Substitute ( Guy) having awarded compensation a case for appeal was stated.

The facts were—“On 11th July 1910 the said Theodore Halvorsen was in the employment of the appellants as second engineer on board their steamship ‘Ramleh,’ which was then at anchor at Leith Harbour, South Georgia, an island situated in the South Atlantic Ocean. The steamship ‘Ramleh’ is a ‘ship,’ and the said Theodore Halvorsen was a ‘seaman,’ within the meaning of the Merchant Shipping Acts 1894 and 1906. The said vessel arrived in said harbour early in May 1910, and shortly thereafter, while the said steamship ‘Ramleh’ was lying in said harbour, the said Theodore Halvorsen received an injury to his thumb by accident arising out of and in the course of his employment by its being crushed in the machinery of the ship. The injury necessitated the services of a medical man, and the appellants in implement of their duty under section 34 of the Merchant Shipping Act 1906 allowed all the seamen on board their vessels to have the services free when their ships were at Leith Harbour, South Georgia, of a medical man, Dr Cruickshanks, resident on shore there. On the afternoon of the day when the said Theodore Halvorsen met with said accident, he went ashore and was attended to by Dr Cruickshanks, whose services as a medical man were sometimes given on board ship and sometimes given at his house on shore.

Shortly after the said Theodore Halvorsen's thumb had been attended to by the said Dr Cruickshanks, he was absent from the said harbour on another of the appellants' steamers, engaged in the capacity of chief engineer on an emergency voyage in search of a missing whaler, on which voyage he was absent for about three weeks.

On his return his thumb was still requiring medical treatment, and on 11th July 1910 he went on shore for the purpose of seeing the doctor in connection therewith and having his thumb dressed. The said Theodore Halvorsen and Robert Hood, the third engineer, had been on shore on 10th July 1910 on their own private business or pleasure, namely, shooting,

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and had then seen Dr Cruickshanks, who asked Halvorsen when he was again coming to see him, and it was then arranged that Halvorsen should see him soon. Leith Harbour, South Georgia, has no built quay, but is only a natural harbour, which might be described as a narrow bay or creek in which ships anchor. Ships are discharged and loaded by means of small boats which go and come between them and a jetty on shore. The ‘Ramleh’ was anchored about 100 yards from the shore. The said Theodore Halvorsen, along with Hood, the third engineer, went on shore from the ‘Ramleh’ on the occasion in question in a small boat belonging to the ship, tied it to the jetty, and went to the doctor's house. The time when they went on shore was early evening, after their ordinary hours of work on board the ship were over for the day. On their arrival there the said Theodore Halvorsen called for the doctor, but was informed that he was not within the house. They—Theodore Halvorsen and his companion the third engineer—then waited for some time, hoping that Halvorsen would be able to see the doctor. While they were thus waiting the wind became very strong and very squally, and the two returned to the jetty with the object of returning to the ship. On reaching the jetty they found that the ship's boat, which they had tied to it, had been taken away to the other side of the harbour, and that the only boat which was then lying at the jetty was a lifeboat belonging to the South Georgia Whaling Company, Limited, the proprietors of the whaling station and jetty. The said lifeboat was some 27 feet in length, having in it its rudder but no oars. This boat was one which in ordinary circumstances should have been manned by six men, each with an oar.

Halvorsen proposed to his companion that they should go without oars, and that the rudder should be used to steer the boat by paddling. The wind and tide would have carried the boat down the harbour more or less in the direction of the ‘Ramleh,’ although the wind was rather on the beam of the boat. The third engineer refused to take the risk, and Halvorsen then proceeded to attempt it himself and pushed the lifeboat out from the jetty and began to paddle with the rudder, which he used on the side of the boat trying to keep her on to the wind. Halvorsen failed to reach the ship and was blown out to sea and was drowned, and neither the boat nor he was seen or heard of again.”

The Sheriff-Substitute further stated—“In these circumstances I held that the said Theodore Halvorsen had met his death by accident arising out of and in the course of his employment with the appellants. It was admitted that the respondent and her said pupil child were wholly dependent on the earnings of the said Theodore Halvorsen at the time of his death, and that if compensation is due to them the amount thereof is £300, and that sum I accordingly awarded as compensation.”

The questions of law were—“1. Whether the said Theodore Halvorsen's death arose out of and in the course of his employment with the appellants within the meaning of the Workmen's Compensation Act 1906? 2. Whether the said Theodore Halvorsen's death was the result of ‘accident’ within the meaning of said Act?”

Counsel for the appellants having opened the case, the Court, without hearing argument, called on counsel for the respondent.

Argued for respondent— Esto that the deceased had adopted an unusual method of returning to his ship, the circumstances were exceptional. Both the second and third engineers were on shore, and as the weather was becoming stormy the deceased decided to return to the ship at once. He adopted the only available means, viz., the lifeboat in question, and looking to the fact that the wind and tide were favourable, and that the “Ramleh” was only 100 yards off the shore, he was justified in so doing. Moreover, the risk from which he perished, viz., going in a boat to the ship, was one specially connected with his employment— per Loreburn, L.C., in Fletcher v. Owners of Ship “ Duchess,” [1911] AC 671, at p. 673—and that being so it fell within the Act— Moore v. Manchester Liners, [1910] A C 498. The case of Kitchenham v. Owners of s.s. “Johannesburg,” [1911] AC 417, was distinguishable, for in that case there was no proof as to how the accident happened.