United Kingdom House of Lords Decisions

I conclude therefore by saying that the appeal fails.

Lord Sumner—I agree. It is enough I think to take the evidence that was before His Honour and his own findings upon that evidence, and thereupon the only question becomes one of construction. He signed the articles, says the master, the only witness on the point. The Board of Trade scale of provisions was crossed out and “Crew to provide their own provisions” was inserted, and His Honour Judge Thomas accepts that. Instead of provisioning the ship themselves, in which case they would have had to provide for the crew according to a scale as set up by the Board of Trade, the owners of the “Black Rock” struck this scale out of the articles and inserted a term whereby the members of the crew were to find their own provisions. Upon the secondary evidence of the written agreement it becomes a question of construction to decide what is meant by the erasure and the insertion of “Crew to provide their own provisions.” I think it is quite clear that that does not constitute any promise by the seamen severally to the master of the vessel that they would as a duty towards him provide themselves with their own provisions. Testing it by the remedy, could he have recovered damages if any one of them had provided no provisions or not enough? Could he have dismissed one of them because for reasons of his own he preferred to be unduly abstemious instead of providing himself amply with food? The answer in each case must be no.

That being so, there is no contractual obligation which made the deceased's errand on shore part of his employment in itself. It is suggested that as in fact he fed himself on board, his going ashore at a convenient port to get provisions constituted such a moral necessity to do so, not arising generally but arising specially from the terms upon which he was on board, that that places him on his errand on the same footing as though he had gone to discharge a duty to the ship—either to buy provisions, to perform an errand, or otherwise. No authority is stated for that proposition, and I do not think it can be accepted.

That being so, little need be said about what was suggested as the admission of a new fact in the Court of Appeal. I am unable to appreciate why it is that it would be a new fact—that is to say, an attempt to decide the case upon materials other than those which were before His Honour Judge Thomas—when the Court of Appeal looks at the best evidence of a written agreement, namely, the agreement itself, which by that time had come back from sea, and was forthcoming, instead of simply looking at the secondary evidence which was given in the County Court, especially as the two together seem to amount to precisely the same thing. The copy has been produced to us. There is a statutory provision that an erasure must be attested by the superintendent, and on the face of the copy produced it seems to me to be quite consistent with its appearance that it has been so attested, and I do not think we need go behind its appearance.

The remaining point that was made—and I am sure that no other point could have been made—was that under the circumstances the accident could be brought within those cases in which a man, having gone on shore for his own lawful purposes, but still his own purposes, is returning to his ship in order to take up again the active discharge of his employment, which has never ceased as an employment, and although he has not actually regained the ship he has been held to be so far approaching it and so far within the ambit of the means of access to the ship as to make it reasonable to hold that he has returned to that sphere in which his employment operates, and therefore that the accident arises out of the employment. I do not think that that has ever been physically extended for any great distance. All that we know of this man's death is that it took place by his falling off the North Pier somewhere between the grocer's shop and the end of the pier where the ship was not, though he thought that she was there. The pier is a quarter of a mile long, and whether or not under those circumstances, on the finding of fact by the County Court Judge, that long pier was all one means of access to an absent ship I will not say, but I think it is quite clear, as the County Court Judge has found nothing about it, that the argument is unsustainable before your Lordships.

I agree that the appeal fails.

Lord Parmoor—I concur. I think that there was no such contractual obligation as was contended for by the learned counsel for the appellant, and for my own part I do not see any difference between the evidence of the contract which was before the learned County Court Judge and the actual document when it was produced before the Court of Appeal. I think it is clear that Christopher Parker, on whose behalf the claim is made, was not absent from the ship in pursuance of any duty owed to the employer, and in the absence of such duty no liability would arise under the provisions of the Workmen's Compensation Act.

As regards the second point, I think that that is concluded by the finding of the learned County Court Judge. There are only a few words which I wish to read, because I think that the facts are conclusive against any claim under this second heading—“The facts of the case do not bring the applicant within the Act, because, beyond drawing the inference that he met with an accident while endeavouring to return to the ship after buying the provisions, I am unable to draw any further inference as to the point of the accident except that it was somewhere on the North Pier.”

I agree that the appeal should be dismissed.

Lord Wrenbury—The question in this

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