Scottish Court of Session Decisions

John Lough Valentine, engineer, 39 Kelvindale Street, Glasgow, pursuer, brought an action against Gow Harrison & Company, steamship owners and brokers, Glasgow, defenders, for payment of the sum of £66, 5s., which he alleged was due to him under a contract of service with the defenders.

The contract of service incorporated the ship's articles, which, inter alia, provided— In port when watches are suspended the hours of work for navigating and engineer officers (except chief engineer) shall be as follows:—Monday to Friday, 7 a.m. to 5 p.m.; Saturday, from 7 a.m. to 1 p.m. Time worked outside these hours, and on Sunday, Christmas Day, and New Year's Day, to be paid for at the rate of 2s. 6d. per hour, except in the following cases:—… Officers in Charge.—No overtime payable where navigating or engineer officers are appointed as officers in charge for night duty and are given equivalent time off-duty. Ports Outside U.K.—No overtime payable at ports outside U.K. where vessel does not load or discharge cargo and remain for more than 24 hours, except that time spent by navigating officers outside working hours as defined above in the actual work of loading or discharging cargo may be computed

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towards overtime whether vessel remains for 24 hours or not. Lost Time.—No overtime payable until a full day has been worked.”

The parties, inter alia, averred—“… (Cond. 2) On or about 30th October 1918 the pursuer was engaged with the defenders to serve as fourth engineer at a monthly salary of £17 and £3 bonus on board the ss. ‘Virgilia,’ then being used as an Admiralty transport, and signed the usual agreement and ship's articles with them. In addition to said salary and bonus it was also agreed between the pursuer and defenders and provided for in the ship's articles that while in port when watches are suspended the hours of work for navigating and engineer officers (except chief engineer) shall be as follows:—[ Here followed a reference to the ship's articles.] No equivalent time off-duty was given to pursuer for night duty. ( Ans. 2) Denied that no equivalent time off-duty was given. Quoad ultra admitted. (Cond. 3) On 1st November 1918 the s.s. ‘Virgilia’ sailed from Greenock to Barry Dock, where it was loaded with coal and sailed for Gibraltar. On arrival at Gibraltar said coal was discharged, and the said steamship proceeded from there to Norfolk, Virginia. At Norfolk the said steamship was again loaded with coal, bunker and ballast, and sailed via Panama Canal to Newcastle, New South Wales, where ballast coal was discharged and re-loaded as bunker coal, a full cargo of Australian coal being loaded also, and the said steamship sailing thereafter for Melbourne. At Melbourne cargo coal was discharged and grain loaded, and the said steamship proceeded to Britain via Suez Canal, the pursuer terminating his engagement with the defenders on the ‘Virgilia’ on its arrival at Avonmouth, Bristol Channel, England. On signing off at Avonmouth the pursuer did so under protest, and claimed from the defenders the sum of £66, 5s. for times worked by him during said voyage outside the ordinary working hours of the said steamship in terms of the ship's articles signed by him. ( Ans. 3) Admitted under reference to answer 4, and except in so far as the claim made is said to be in terms of ship's articles, which is denied. (Cond. 4) The pursuer produces an account or statement showing the various times worked by him during said voyage for which he is entitled to be paid additionally at the rate of 2s. 6d. per hour. The various sums to which the pursuer is so entitled in respect of overtime in terms of this engagement amount in cumulo to £66, 5s. With reference to the statement made in answer it is admitted that the sum of £3, 5s. has been paid to account. The further statements made in answer are denied, and it is explained that under said ship's articles the pursuer was entitled to overtime when merely on duty whether engaged on active duties or not. ( Ans. 4) Denied. The statement produced is inaccurate in respect that overtime is claimed (1) where payment had in certain cases been already made, (2) in circumstances falling within the exceptions detailed in answer 2, (3) that equivalent time off was given. Further, on nearly all occasions for which overtime is claimed the pursuer did no work, and is therefore not entitled to overtime under said articles. Explained also that it is and always has been a universal custom in shipping that officers and engineers take their turn on night duty while in port, and that without payment of overtime except where they are required to undertake some active duties. Ship's officers or engineers require leave to go ashore, and night duty does not mean an extra duty but merely withholding of leave. The fact of an officer remaining and sleeping on board in his turn so as to be available in case of emergency did and does not entitle him to overtime. It is further explained that the above provisions in said articles with regard to overtime were introduced generally about March 1918 as a result of negotiations between owners' associations and, inter alia, the Marine Engineers' Association, of which pursuer is a member, that doubts arose as to whether they entitled engineers to claim overtime for night duty where no work was done. That was agreed by all parties, including the said association, and it remains the custom in shipping that an engineer's obligation for night duty without payment is the same as before. (Cond. 5) The pursuer has applied personally by letter and through his law agents for payment to him of the said sum of £66, 5s., but the defenders refuse or delay to make same, and the present action has been rendered necessary in consequence. ( Ans. 5) Admitted. Explained that the pursuer is entitled to the sum of £8 in respect of overtime worked by him during said voyage. The pursuer has refused to accept this sum, and has by his agent returned the defenders' cheque for that amount when tendered.”

On 8th December 1919 the Sheriff-Substitute ( Lyell) after a proof pronounced this interlocutor—“On a just consideration of the ship's articles here in dispute, Finds (1) that the pursuer was entitled either to payment from the defenders of 2s. 6d. or to equivalent time off-duty for every hour during which he actually worked on the nights when he was appointed officer-in-charge for night duty while the ship lay in port; (2) that the pursuer was not entitled to such payment or equivalent for every hour spent on board as officer-in-charge for night duty on the said nights during which hours the pursuer did no work other than so remaining on board: and finds in law that the defenders are not liable in the sum sued for, but only in the sum of £8 already tendered and refused: Therefore assoilzies the defenders and decerns. …”

Note.—“It can hardly be said that the ship's articles in question are a model of perspicuous intelligibility. The leading purpose is, however, clear. When the ship is in port and watches suspended the navigating and subordinate engineer officers' hours of work are from 7 a.m. to 5 p.m. on Mondays to Fridays, and on Saturdays from 7 a.m. to 1 p.m. Leaving out of view the references to Sundays and special days as irrelevant to the point here in dispute, the next thing to be observed is that 2s. 6d. per hour is to be paid these officers, in addition to their

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stipulated salaries, for ‘time worked’ outside these stipulated hours, with certain exceptions. Be it observed that, so far as we have got, the requisite antecedent to the payment of each 2s. 6d. is not that one hour shall have been spent on board, but that one hour's work shall have been done, outside the ordinary working hours. That is too plain for argument. Then follow a number of so-called excepted cases, the crucial clause, on which the solution of the question here turns, being as follows:—‘ Officers in charge.—No overtime payable where navigating or engineer officers are appointed as officers in charge for night duty and are given equivalent time off duty.’ That seems to me, in the first place, to mean exactly what it says. If you appoint a man officer in charge for night duty and give him an equivalent number of hours off duty, he has no claim for any overtime for work done during the time he was on night duty. Conversely it follows that if you appoint a man officer in charge for night duty, but give him no equivalent time off duty, he has a claim to be paid overtime, but that claim is defined in terms of the articles as meaning a claim at the rate of 2s. 6d. an hour for any ‘time worked’ while on night duty, because the hours when he is officer in charge for night duty are ‘outside’ the ordinary working hours in port. The true question thus comes to be—What is the meaning of the expression ‘time worked outside these hours’ in the enacting clause of the articles? The argument of the pursuer on the point is at first sight specious enough. He puts it that for every hour spent by him as officer in charge for night duty he is entitled either to a corresponding hour off or 2s. 6d. In my view, however, he fails to grasp the meaning of ‘overtime payable’ in the clause that he relies on. By reference to the enacting clause we discover that overtime is only payable for ‘time worked outside’ the ordinary hours. The proper meaning of the clause in question seems to me to be that where the pursuer has been appointed as officer in charge for night duty but has been given no equivalent time off duty, he is entitled to payment of 2s. 6d. for every hour during which he has worked during the nights that he was so appointed officer in charge, but he is not entitled to payment for time only. In a sense it is true that once a man is on duty he is at his work. The evidence, however, is to the effect that an officer in charge in port merely goes to his bunk. When a reasonable reading can be given to these articles it would certainly be out of the question to adopt the fantastic suggestion that the pursuer is to be entitled to payment of 2s. 6d. an hour for sleeping on board. For any work that he did during these nights he is obviously entitled to payment, unless he has been granted equivalent time off duty. As I understand it, the defenders' suggestion that the sum due on that footing is £8 is not denied. It has been already tendered and refused. I shall therefore direct that it be deducted from the amount of the defenders' expenses, for which the pursuer is of course liable.”

The pursuer appealed to the Sheriff ( Mackenzie), who on 31st May 1920 adhered.

Note.—“This case turns upon the construction of the provisions relating to overtime contained in the ship's articles under which the pursuer was engaged by the defenders as fourth engineer on board the steamship ‘Virgilia’ in the year 1918. The question raised cannot be said to be free from difficulty, and in my opinion the articles in question are capable of being construed either as the pursuer or as the defenders contend, but I have come to think that the construction put upon them by the learned Sheriff-Substitute is the more reasonable, and is to be preferred.”

The pursuer appealed, and argued—Time was of the essence of the contract. If an engineer officer was retained for night duty and was not given equivalenttime off duty he was entitled to overtime payment— Officer v. Davidson & Company, 1918 S.C. (H.L.) 66, 55 S.L.R. 185, per Lord Dunedin at 1918 S.C. (H.L.) 78, 55 S.L.R. 191.

Argued for the respondents—The sum sued for was a payment claimed for “time worked,” but the pursuer had not been called upon to perform any work during his spells of night duty, and he was not entitled to payment merely for the flight of time. The construction which the defenders placed upon the articles was reasonable and should be preferred to the pursuer's construction, which was grotesque. On the pursuer's construction of the articles an engineer officer might be able to claim more pay for night duty which had involved no work than he was entitled to for actual work done.

At advising—