Joseph Monks & Company, Ltd, Defendants v Abina Coughlan, Plaintiff,

• Jurisdiction: Ireland
• Judgment Date: 17 December 1917
• Date: 17 December 1917
• Court: King's Bench Division (Ireland)

Abina Coughlan

Plaintiff

and

Joseph Monks & Co. Ltd.,

Defendants (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1918.

Negligence — Shipowner — Defective gear on ship — Duty of shipowner in relation to persons unloading ship — Misdirection.

The defendants, owners of a steamship, chartered their vessel for the carriage of coal to Cork. Under the charter-party the cargo, which was consigned to the Cork Gas Company, was to be discharged by the steamer giving the use of steam-winches, gear, and sufficient steam. The consignees of the cargo employed H., a stevedore, to discharge the cargo. This was done, by direction of H., by working both steam-winches of the vessel on the derrick attached to the foremast, one winch being used for hoisting, and the other for swinging the derrick. There was no arrangement on the ship for swinging the derrick when the ship was handed over to H., and the derrick could have been swung by employing two men with ropes. Shortly after the discharge of the cargo had commenced the forestay snapped, and the foremast fell, breaking close to the deck. As a result the derrick fell into the hold, and killed C., an employee of H.

In an action under Lord Campbell's Act by C.'s wife against the defendants it was proved that the stay and mast were rotten, and pieces of each were inspected by the jury. Evidence was given that the defective state of neither the stay nor the mast was visible before the accident, and that the ship, two years before the accident, had been passed as sound and perfect on Lloyd's survey. The judge at the trial directed for the defendants on the ground that they were only under a duty to use reasonable care to see that the appliances were in fit and sound condition, and that on the evidence no precaution was suggested or proved that would have discovered the defect owing to which the accident occurred.

Held, by the Court of Appeal (1), affirming the judgment of the King's Bench Division (2), granting a new trial, that the jury might form their own opinion on the state of the stay and mast from inspection, that there was sufficient evidence to go to the jury, and that the case should not have been withdrawn by the learned judge.

Where an accident results from defective condition of plant, the burden of disproving negligence lies on the person responsible for the defect.

Scott v. The London and St. Katherine Docks Co. (3 H. & C. 596), and Flannery v. Waterford and Limerick Railway Co. (I. R. 11 C. L. 30), followed; Hanrahan v. Ardnamult Steamship Co. (22 L. R. Ir. 55) doubted.

New Trial Motion.

On behalf of the plaintiff for an order that the verdict and judgment entered for the defendant on the trial of the action should be set aside and a new trial of the action should be ordered.

The action was brought under Lord Campbell's Act (9 & 10 Vict c. 93) by the plaintiff, Abina Coughlan, to recover damages for the death of her husband Daniel Coughlan, due to the negligence of the defendants, and was tried before Dodd J. and a special jury of the city of Cork at the Cork Summer Assizes, 1917. Verdict and judgment were entered for the defendants on the direction of Dodd J.

The following are the material portions of the judge's report on the trial:—

“Peter Halloran, stevedore—‘I entered into an agreement to discharge the cargo for the Cork Gas Company. At 10 o'clock on August 15th I commenced to discharge. The model (produced) is accurate, with one exception, the starboard deck-block is further forward than appears on the model; it should be opposite the hold. The ship discharged on the port side. The derrick broke in two parts.’ [To a juror.] ‘It was not the top part that fell into the hold, it was the remaining portion fell in; the bucket fell into the hold, but it was not the bucket, it was the derrick that killed the deceased. I heard a noise like a snap, the snapping of a stay-rope; it caused a noise by striking against the mast. The mast fell down, the derrick fell into the hold, and the labourer was killed.’ [To a juror.] ‘There is a rigging-screw for tightening the forestay from the deck.’ [Question by juror—‘Whose business is it to look after the rigging?’ Answer—‘I acted on the assumption that it was the duty of the ship to look after the tackle.’] ‘The same practice was adopted as usual. The steam-winch and gear was used as usual and customary in the port. I saw the mast after the accident, it was broken off about 1 foot or 18 inches from the deck.’ [Counsel reads from the Charter-party—‘Cargo to be discharged by charterers, steamer giving the use of steam-winches and sufficient steam, and allowing 1s.’] ‘The stay was rotten. It appeared to me to be rotten. The mast broke. There was a cap on the mast, 1 foot or 9 inches. I saw the condition of the mast. It appeared to me to be rotten. The bucket which fell is about 14 cwt. in weight. There is a strain on this part of the mast.’

“Cross-examined:—‘The document under which I was engaged as stevedore is at home. I agreed with the Gas Company I would insure my men. The ship is not equipped with a special crane or derrick. There was no arrangement on the ship for swinging the derrick when the ship was handed over to me; it is only hoisting that can be done by the steam-winch. The line from the winch was not rove. When I took over the ship I rove it through the top of the derrick and down to the port side; it went up to the mast-head block and direct to the winch. The peak iron was a single sheet (? sheaf) block. The line was led through the deck block on the starboard side. I had two winches working on the same peak.’ [Note by judge—‘I got these answers down as accurately as I could, but counsel and witness were both pointing out on the model the parts referred to, and the jurors were also asking questions. I did not stay to get my note verified. Counsel on both sides were transparently fair to each other, and the Court may take the explanation given at the bar to amplify or modify my brief note. As. I understood, the object of the cross-examination was to show that the witness was responsible for the proper fitting of the ship's appliances; that the two winches working at the same time, and the way the ropes were led to and from the winch to the mast and derrick, placed an undue strain on the appliances.’ A juror asked—‘Is it usual to have two winches on the same peak?’ Another juror asked—‘Wasn't there only one load?’ The Serjeant explained there was a strain downward on the peak to starboard, and a pull on the forward winch down and to port at the same time.’]

“Witness continues:—‘The forestay looked all right to me. The mast looked all right from the outside. There was nothing on the ship to show I might not go on with the unloading; Moriarty was standing by the after-winch.’”

“[Note by judge:—‘The jury and counsel again had some explanations. It was suggested that Moriarty's winch should not have been worked; it was to save the trouble of two men with guy ropes to regulate the swing.’]

“Denis Halloran, brother of Peter Halloran, examined:—‘At 10.30 o'clock I heard something snapping. I shouted to the men in the hold to look out. I shut off the steam of the winch. I knew something would happen. The end of the mast jammed up the edge of the winch.’

“Michael Hayes, Sergeant R.I.C., examined:—‘On the morning of the 25th August I examined the forestay; it was rotten, I produce part of the mast. I examined it where it broke at the band on the deck. The pieces of the mast are soft, pulpy, and rotten.’ [Note by judge:—‘The jury handed round and examined the pieces and made comments, one suggesting the mark was the paint on the outside and others making comments the other way. I did not examine the slices of the mast.’] Witness continues:—‘The stay broke apart 18 inches from the bow. I cut off this portion of the stay I produce from the portion attached to the mast. The dark pieces of wood are from the mast; the black part was under the band.’

“Ernest Allhusen, factory inspector for the Cork district, examined:—‘I visited the “Elsena” on the 25th August. I saw the mast; I examined it. There was some rot just above the cap, about 1 inch deep on the aft side. The mast was 49 inches in circumference. I examined the stay; it was quite rusted; some of the strands break in your fingers. Until the stay was broken you could not see the rot. Some strands of the stay were half rotten.’ Not cross-examined.

“The plaintiff closed. Serjeant Sullivan asked for a direction on these grounds: That the ship was in the possession of the Cork Gas Company, or rather in the possession of an independent contractor, and that it was the duty of the stevedore to see that appliances were fit for the strain he was going to put upon them. That the injuries were the result of his breach of duty. The deceased was not a workman; the Gas Company had an independent contractor: Elliott v. Hall (1); Marney v. Scott (2).

“Without deciding on any of these propositions I said I was of opinion that there was no evidence of negligence, and I asked

Mr. Lynch to formulate what the negligence was. He said as follows:—‘Having permitted this man to come on board to assist in the discharge of the vessel when the gear that was being used for the purpose was in the condition in which it was proved to be, and, secondly, for supplying gear to the deceased in the condition in which it was.’

“I was of opinion that the question was based on the breach of too wide a duty on the shipowners; it was consistent with there being no negligence; there would be no negligence unless there was evidence that the shipowner knew or reasonably ought to have known that the gear was in such a condition. No precaution was suggested that the ship ought to have taken and did not take; and both the stevedore and Mr. Allhusen said the...