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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacIver v J & A Gardner Ltd [2000] ScotCS 204 (19 July 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/204.html Cite as: [2000] ScotCS 204

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The pursuer is the widow of the late Alistair McIver and sues on her own behalf and that of the two children of the marriage. The deceased was employed by the defenders as the master of the MV "St Oran". The defenders were also the owners of the vessel. There were five other members of the ship's crew. In April 1996 the ship was docked at Kyle of Lochalsh, having come from Ireland with a load of cages for use in fish farms. This voyage with that cargo had been undertaken on some 24 previous occasions. The cages required to be unloaded at Kyle using a mobile dockside crane operated by someone who was not a member of the crew. A ring with four chains was attached to the crane. Hooks on each chain were then attached to flanges on the particular cage. The cage required an initial lift after which strops were secured around it prior to it being moved up and onto the dockside.

According to the pursuer, the system used to pull the stops through from one side of the cage to the other involved either a member of the crew going under the raised cage to do so or the use of a "home made" tool consisting of a broom handle with a hook on the end of it. The tool had been thought up by one of the crew members, not the deceased. Sometimes the crew members would go under the raised cage with the home made tool. This occurred especially either when part of the handle of the tool broke, rendering the device shorter than normal, or when the cage was positioned in certain areas of the hold which required someone to go underneath in any event. The accident which killed the deceased occurred when he went under a raised cage. The cage slipped off the hooks and fell on top of him. After the accident the defenders provided a more sophisticated tool for pulling the strops.

According to the defenders, it was the pursuer who was responsible for devising the system. The system was safe in that there was no reason for the deceased to go under the cage. Although the pursuer did not admit that he was responsible for devising the system, the deceased would no doubt have some say in the manner in which the cargo was unloaded from his vessel. The pursuer's case was a standard one of alleged negligence on the part of the deceased's employers for failing to devise and maintain a safe system of work. The system was unsafe, according to the pursuer, in that: (1) the cages were raised in a manner which could permit them to slip off the hooks; and (2) men were permitted to go underneath an insecure suspended load. It was said that, having regard to the number of times this particular task had been performed, the defenders knew or ought to have known of the unsafe practices and ought to have stopped them. However, the pursuer averred that the defenders took no interest in the system used for unloading and made no effort to find out what systems were in place.

In addition, the pursuer had a case based on Regulation 4 of the Merchant Shipping (Health & Safety: General Duties) Regulations 1984 (S.I. 1984 No. 408) which provides that:

That general duty is said by sub-regulation (2) to extend inter alia to safe plant and equipment, safe systems of work and safe handling of articles.

At the Procedure Roll debate before me, the defenders sought exclusion of the common law case from probation on the grounds that it was irrelevant. Although accepting that the defenders, as his employers, owed the deceased certain duties of care such as providing him with a seaworthy vessel including the equipment upon it, the defenders maintained that they did not owe the deceased a duty of care in relation to the systems of work employed on board the ship. A ship's master was in an unique position in that all shipboard operations were conducted under his command. He was the safety officer in charge of these operations and it was not "fair, just and reasonable" to impose a duty of care upon his employers in respect of systems over which the master had control.

Counsel was not able, despite extensive research, to find any case in which a master had successfully, or indeed unsuccessfully, sued his employers in respect of personal injuries to him resulting from an unsafe system on board his ship. He did, however, refer me to passages in certain textbooks outlining the role of the master (Stair Memorial Encyclopaedia vol. 21 "Shipping and Navigation" by his opponent, Colin McKenzie, Advocate at paras. 251 and 242; Hallsbury's Laws of England (4^th ed. Reissue) vol. 43(1) paras. 460, 461 and 468; Hill: Maritime Law (5^th ed. 470)). He also pointed out that the master was excluded from the definition of a seaman in the Merchant Shipping Acts (Merchant Shipping Act 1995 (c. 21) Section 331(1)) and referred to one case concerning the master's inability to delegate his responsibilities (the Bonvilston (1914) 30 T.L.R. 311). If the master could be liable in respect of his negligence to his employers then he could have no case here given that it was the master who had put himself in the position of risk. On the other hand there was nothing to suggest that the defenders were ever made aware of any risks attached to the system which had operated for some years without incident. In that regard there was no fair notice given of how the defenders could have foreseen any risk of injury from the use of the system. As a subsidiary point, the defenders argued that certain specific averments were irrelevant, namely those contained in the pursuer's minute of amendment relating to situations when the broom and hook could not be used. The reason why they were irrelevant was that it was not averred that the incident involving the deceased had been one of these situations.

The pursuer's position was that the general duties owed by an employer to his employees suffered no exception in the case of a ship's master albeit that he held an onerous, responsible job. His role was described in Maclachlan: Merchant Shipping (7^th ed. at 102 and 146-7) and in Rich v Coe ((1777) 2 Cowp 636 (98 E.R. 1281)). It was correct to say that he was not a seaman in the terms of the Merchant Shipping Acts but that had no bearing on the common law (Oakes v Monkland Iron Co Ltd (1884) 11 R. 579; MacBeth & Co v Chislett (1910) A.C. 220). Although he could not find any case of a ship's master suing his employers on the basis of unsafe system, that might be explicable, up until 1945 at least, by the effect of contributory negligence on liability prior to that date. In none of the leading cases, such as English v Wilsons & Clyde Coal Co 1937 S.C. (H.L.) 46, was any exception mentioned. None was referred to in McDermid v Nash Dredging Ltd (1987) A.C. 906 when the general duties were being considered (Lord Hailsham of St Marlebone at 910; Lord Brandon of Oakbrook at 919). It would be odd if such an exception did exist but this fact had not been mentioned in either a case or a textbook.

In some cases the employers' duties may be limited if the employer had no effective control over the matter deemed negligent (Cook v Square D Ltd (1992) I.C.R. 262, Farquharson J. at 266; Crombie v McDermott (Scotland) Ltd 1996 S.L.T 1238). However, that was not the kind of situation which had arisen here where the defenders were domiciled in Scotland, the ship was British registered, the deceased had worked for the defenders for a number of years and this particular task was not an isolated one but had been carried out many times. The law was not inflexible but fairness, justice and reasonableness could be taken into account by determining what amounted to reasonable care in the circumstances of each case. The defenders remained under a duty of care in relation to the system of work and they could not avoid liability by delegating it to their employee, the master. It was for the employers to devise and maintain the system of work and the criticisms about the lack of actual knowledge were not justified in that context.

In relation to the points of specification, counsel advised me that he was not in a position to provide any greater specification than that already on record. The pursuer was, of course, the widow who had no personal knowledge of the circumstances in which the deceased came to be under the raised cage. Although the accident had happened over four years ago and there had already been a fatal accident inquiry, investigations were still "ongoing". In particular it was not known whether the deceased could have used the tool to pull the strops through or whether he had tried to do so.

There is no reason in principle for the employer's general duty of care in relation to his employee to suffer an exception in the case of a ship's master. Equally there is no reason for the particular duty to devise, maintain and enforce a safe system of work to be modified in such a case. There seems to be no authority for the proposition that any such exception or modification exists and I would have found it very difficult to find favour with that proposition in the absence of such authority. Futhermore, where such a general duty does exist, I can see no basis in fairness, justice or reasonableness for introducing any exception or modification in the circumstances of this case. In this area of the law, I do not think that any of the cases referred to was of substantial assistance.

Although he is no doubt in an unique position in relation to many matters, especially the safety of his ship at sea, a ship's master is in other respects no different relative to the safety of the system of work from many senior employees whose job it is to ensure the safety of the work being done. For example, the manager of a plant may have similar duties in terms of his contract of employment. However, such factual delegation does not affect the employer's duties in law since these are not capable of delegation (English v Wilsons & Clyde Coal Co). It follows that in this case the defenders continued to owe the deceased a duty of care in relation to the devising, maintaining and enforcing of a safe system for the work.

The standard is one of reasonable care and the question then is whether the pursuer's averments are sufficiently relevant and specific to instruct a case of breach in the context of that standard. Put another way, if the pursuer proves all of her averments on Record, is she still bound to fail? I do not think so. The operation being undertaken at the time of the death was not one in connection with the safe navigation of the ship or on-board safety whilst at sea. Rather it was one involving the unloading of cargo using a shore based crane. The degree to which the master of a vessel is supposed to be cognisant with such matters is not evident upon the Record at present. Equally, the extent to which, in practice, the employers of crew members on a vessel supervise these activities to see that they are not endangering themselves is not clear on the pleadings. Much may depend on the size, nature and location of the employer and the nature of the task being carried out on board. In the case of a single operation carried out far from home, it may be difficult (but not impossible) to hold that an employer has breached any personal duty when the system used turns out to have been negligently devised or implemented by the master. On the other hand where, as here, the operation is one regularly carried out (i.e. the unloading of cargo) and frequently done with the particular cargo using the particular method, it may be much easier to hold that the employer is in breach if, as averred here, he took no interest at all in the system which was being used on his ship and which may have been evidently dangerous to both master and crew. There is no issue that the pursuer has relevantly averred that a system whereby a person went underneath an insecure suspended load was potentially unsafe. In these circumstances the pursuer has averred and may be able to prove that, had the defenders taken some interest in the system at some point prior to the accident, they would have foreseen the dangers and been able to remedy the unsafe system giving rise to these dangers. In short, if the pursuer proves all that she has averred then the defenders may well be responsible in law for the system used on the ship. I will accordingly allow a proof before answer.

Of course, if it transpires that: (1) the master of the vessel is expected to be proficient in the devising of systems for the unloading of cargo; (2) the deceased devised this system when he ought to have known it was unsafe; and (3) the deceased was deliberately courting danger when he went under the cage, then the issues of sole fault and contributory negligence may well loom large. That does not detract, however, from the existence of the duty on the employer and the potential breach of that duty by them. Both aspects have, in my opinion, been relevantly averred.

Although there may be force in the defenders' criticisms at the point of submissions after a proof, I do not consider that the pleadings concerning the need to go underneath the cage in certain situations irrespective of the existence of the tool are irrelevant or lacking in specification. All that the pursuer is saying at the moment is that the system in place did not obviate the necessity for someone to go under the cages from time to time. This may well reflect on the general safety of the system and the defenders' alleged failure to find out about it and remedy potential problems. In those circumstances the proof before answer will be on the whole pleadings and I will leave all the averments standing.