Scottish Court of Session Decisions

William M'Lauchlan, quay labourer, brought an action against the steamship “Peveril” company, Limited, in the Sheriff Court at Glasgow, in which he claimed damages from them for injuries sustained by him while engaged at the Queen's Dock, Glasgow as an employee of Messrs Macgregor & Ferguson, stevedores, in discharging the cargo of the “Peveril,” of which the defenders were owners. He averred that on or about 21st January 1896 he was employed near the square of No. 2 hatch in collecting ingots of lead into slings so that they might be dragged under the hatch way by the winch and so up out of the hold, following what was the universal mode of discharging such cargoes in Glasgow. He further averred that another squad of men were similarly employed in another part of the hold, and that while certain ingots of lead were being slung by them they came slightly in contact with some lead surrounding a stanchion of the vessel, and that “notwithstanding that the sling only touched the lead in the slightest way possible the stanchion at once gave way and fell upon the pursuer and broke his leg.” He further averred—“(Cond. 3) …

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It is explained that the stanchion was surrounded, up to a certain height, by pieces of lead which kept it nearly upright, and, when this support was removed, it fell in the manner described, as there were no bolts in it to keep it in its place. (Cond. 4) After the accident the pursuer's fellow-workmen at once examined the stanchion and found that it had, when originally fixed, been secured by two bolts at the top and one at the bottom. Only one bolt was left in the stanchion in the hole next the keel, and after it fell this bolt was found in the hold. This bolt was old and worn and had been cracked through the centre before the stanchion fell. The rust had eaten into it so thoroughly that all the strength had been taken out of it. The bolts at the top were evidently a wan ting, as they could not be discovered in the hold. At any rate, the nuts of the bolts were evidently not screwed on. It is explained that the stanchions of vessels are generally specially constructed of great strength to resist the concussion of cargo being moved and shifted about in the holds, and, if properly secured they are quite strong enough to resist the force which can be put upon them by a winch of the description used in this vessel. It is explained that the full force of the aforesaid sling of lead did not come against the lead near the stanchion, and that it fell in a manner which showed that it was not supported or secured in any reasonable way. Had it been so, it could not have fallen with the slight concussion upon it which resulted from the contact between the sling of lead referred to and the lead near the stanchion, and as a matter of fact, the sling of lead, when it stopped, had not gone past the place where the bottom of the stanchion was when it fell. (Cond. 5) The pursuer has thus been injured through the gross and culpable negligence of the defenders or their servants, in respect of their having left the aforesaid stanchion in a dangerous and defective condition, and improperly secured both at the top and and bottom. It was the duty of the defenders as the shipowners to see that all the fittings, moveable and otherwise, of the the vessel are properly and securely fixed, so as to enable the stevedores engaged to do their work in a safe and proper manner. It was also their duty periodically to examine and test the stanchion referred to, but they failed to do so, and the pursuer has become injured in consequence.…”

The defenders pleaded, inter alia—“(1) The pursuer's statements are irrelevant. (4) The said accident having occurred through the dangerous manner in which the work was being done, and through the fault of the pursuer and his fellow workmen, the defenders should be assoilzied, with expenses.”

In consequence of the fourth plea the pursuer brought an action against his employers—Messrs Macgregor & Ferguson—in which he craved decree for damages at common law, and alternatively under the Employers Liability Act 1880. In addition to the averments as to the method in which the cargo was being discharged and the circumstances in which he was injured above quoted, he averred that “he was working” “under the orders and supervision of the defenders' foreman, John Cunningham, whose principal duty was one of supervision, and who was not ordinarily engaged in manual labour.”

He further averred—“(Cond. 4) … It was also the duty of the defenders' foreman to ascertain whether the stanchion above described was originally, and continued to be, properly and firmly secured during the progress of the discharge … As a matter of fact, although the defenders' foreman knew, or ought to have known, that the stanchion above described was practically unfastened and unsupported, except by the pig-lead around it, which kept it in its place, and off the perpendicular, he took no steps either to inform the master or officers of the ship of the dangerous condition of the stanchion, or to have the stanchion removed from the place, or properly supported.… He gave no warning of any description to the pursuer or his fellow workmen of the defective condition of the stanchion. It is. further believed and averred that if there was a danger of the stanchion being touched or injured by the loads being dragged out of the hold by the winch, it was the duty of the defenders and their foreman to have removed the stanchion from its place until the discharge had been completed. It is believed that this is customary amongst the stevedores of Glasgow. (Cond. 5) The pursuer has thus been injured through the foreman's negligence in superintendence, through failure to ascertain and warn the captain of the defective condition of the aforesaid stanchion, or cause it to be properly supported himself. The defenders' foreman was also at fault in not causing the aforesaid defective stanchion to be altogether removed when he saw that there was danger of some of the loads coming near it so as to touch it or the lead around it.”

The defenders pleaded, inter alia—“(1) The action is irrelevant, and should be dismissed with expenses to defenders. (4) The accident having been caused through a defect in the ship, for which defenders are not responsible, they should be absolved, with expenses.”

The actions were conjoined ob contingentiam on 24th March 1896, and by interlocutor dated 31st March the Sheriff-Substitute ( Spens) allowed a proof before answer, adding the following note:—

Note.—“An action in the first place was raised by the pursuer against the owners of the steamship in which the accident happened. The defenders in that case lodged defences, inter alia, averring that the manner in which the discharge was carried on was reckless and obviously dangerous, and that the accident was due to this and the carelessness of pursuer and his fellow-workmen. This averment inferred fault on the part of the stevedore's foreman, and against the stevedore a second action was raised. The two actions were conjoined on the 24th March, and I have

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now heard a debate on the conjoined actions. I consider there is some misconception as to the effect of conjunction. It is simply in my opinion (and that of one of my colleagues with whom I spoke on the subject) entirely a matter which has to do with convenience as to procedure. If the actions are separately relevant, there relevancy is in no way affected by the fact that the actions have been conjoined, even although the statements in each are not consistent. The justification to the pursuer for raising a supplementary action is found in the defenders' averments in the first case. I do not know that the averments in the second case are absolutely inconsistent with the averments in the first case, but even if they were, as I have already indicated, I do not think it affects the question quoad a case for proof.

“Substantially, on the case as presented, it pretty much comes to this—that it was the duty of the shipowners to see that the stanchions of the ship were in such a state that men employed in working in the hold should not be exposed to the risk of their falling from slight causes; and, in the second place, fault is averred against the stevedore's foreman in respect that if he had taken the precaution of seeing that stanchions were right, the one in question having patently something wrong with it, the accident would not have happened. Now, the agent for the shipowner argued that the proximate cause of the accident was the fault of the stevedore as averred. As I have already said, I think that each case must be taken by itself separately as regards relevancy. I am not, however, prepared to hold that the shipowners could be absolved from blame as directly contributing to the accident, if it be proved that their stanchions were defective, and that it should have been known that they were defective if there had been proper supervision, merely because there should have been a further precaution taken by the stevedore or his foreman which had been neglected. I think the proper course in this case is to have a proof before answer.”

The pursuer appealed to the Court of Session for trial by jury.

Both defenders objected to the relevancy of the actions.

Argued for the defenders the s.s. “Peveril” Company, Limited—It was conceded that these defenders were liable for the sufficiency of the ship and gear, so far as necessarily and properly used by strangers. But this stanchion was knocked down by such a blow as it was never intended to withstand. It was quite sufficient to support the deck, which was all it was intended to do. It was not averred that the jar which it had received was a necessary or probable incident in unloading a ship of its cargo, and such an averment was necessary to make an action in such circumstances relevant against the shipowner.

Argued for the defenders Macgregor & Ferguson—These defenders were not liable for the sufficiency of the stanchion. The stevedore was not bound to make an inspection of the ship and gear to see that they were in safe condition— Simpson and Others v. Burrell & Son and Baton, March 12, 1896, 33 S.L.R. 413. That case ruled the present. Without inspection the alleged defect in the stanchion could not have been discovered. Even if these defenders' foreman had discovered the condition of the stanchion, he would have had no right to interfere with it or to cease discharging the vessel until it was removed.

Argued for the pursuer—The stanchion fell because it was not supported by bolts but only by the lead which was round it. Its condition was therefore clearly unsafe and defective, and for this the defenders the shipowners were liable. The defect was so patent that the defenders the stevedores were liable for not observing it and taking steps to prevent its doing injury to their workmen.