Legal Notes.

Southern Cross, Volume 1, Issue 38, 16 December 1893, Page 3

Legal Notes.

A NEW ZEALAND SHIPPING

CASE

(From the Nautical Magazine.)

The case of Cameron v. Nystron is of special interest at the present moan «nt when the question whether seamen are or are not to be included in future Employers’ Liability Acts is so much discussed.

Nystron was a seaman serving on board a ship called the Brahmin, and -whilst at Lyttelton, New Zealand, he -was injured by a fall of a hoist of wire, occasioned by some of the unloading gear carrying away. The work was being done by stevedores, a master stevedore having undertaken it at so much a ton. The gear was found by the ship, but rigged up by the stevedores. Nystron sued the master stevedore, Cameron, for the damage sustained. The jury found that the gear was improperly and negligently rigged up, and found a -verdict for Nystron for £750. Cameron endeavoured to set aside the finding, the point discussed being -whether the doctrine of common employment as between the stevedore’s man and the seaman prevented the latter from recovering damages. The Court of Appeal in New Zealand was in fact equally divided on the point, but the Junior Judge, according to custom in such cases, withdrew his Judgment, leaving a majority in favor of letting the judgment stand on the ground that the stevedore was a separate and independent contractor, and subject to no control from the master of the ship, the seamen of course being entirely under the control of the master. From this d ecision the master stevedore again appealed to the Privy Council, and the appeal came on for hearing on April 24th, 1893, before the Judicial Committee, there being present Lord Herschell, Jj. C., Lord Watson, Lord Hohhouse, Lord Macnanghten, Lord Shand, and the Hon. G. Denham, who, without calling on counsel to argue in favour of the"respondent, the seaman, decided in his favour.

The appellant’s contentions were threefold. (1.) That the stevedore’s men and the seamen being both employed about the ship’s work were engaged in a common employment. This was negatived by reference to a previous case recently decided in the House of Lords, where it was stated “ that unless the person sought to be rendered liable,” here the master stevedore, “ for the negligence of his servant, can show that the person so seeking to make him liable,” here the seaman, “ was himself in his service, the defence of common employment is not open to him.” (2.) That at the time of the accident, the person whose negligence caused it was not in the service of the appellant, the master stevedore, but in fact in that of the master of the ship, and acting under his orders. The answer to this was, that the master stevedore undertook to do the whole work and paid the person for what he did, and the fact that the master and officers could direct the order in which the cargo was to be discharged did not make the foreman and stevedores the servants of the shipowner. (3.) That the seaman was, at the time the accident happened, standing in a position of danger, and therefore was guilty of contributory negligence, for the jury had found that placing him there was an act of negligence, but this was easily answered by pointing out that the negligence so found was not the personal negligence of the seaman, whose duty it was to go where he was sent.

It is to be hoped that, notwithstanding the extra costs incurred by taking the case to the Judicial Committee, the seaman has managed to retain a substantial amount of the liberal sum allowed him by the New Zealand jury. Beyond this hope the main points are that if common employment is to be of use as a defence, the doer of the injury and the sufferer must not be engaged in a common occupation, but must be

servants of the same’ master, which master it is sought to hold liable; secondly, that if the Employers’ Liability Act is made applicable to seamen, masters of ships on engaging stevedores must be careful how they do it if ; they make the persons working the cargo the servants of themselves and through them of the shipowners, they will render the shipowners liable for injuries sustained by a seaman through the negligence of a stevedore; and, thirdly, that if the Act apply to seamen, the seamen in such a case as this will have a two-fold remedy (a) against the master stevedore as here ; (6) against the shipowner on the ground of the master or other officer’s negligence in putting him in a dangerous place. Of course these remedies are in addition to that which every one has against the actual doer of the injury.