McCartan v Belfast Harbour Commissioners

• Jurisdiction: Ireland
• Judgment Date: 20 December 1909
• Date: 20 December 1909
• Court: King's Bench Division (Ireland)

M'Cartan

and

Belfast Harbour Commissioners (1).

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.

1910.

Master and servant: — Hiring for particular service: — Master whether parting with control of servant to hirer: — Negligence causing injury to hirer's servant: — Common employment.

The Belfast Harbour Commissioners have under their statutory powers the control of the harbour and of all piers, docks, and quays, belonging to it; and it is their duty to assign a berth to a vessel to be discharged in the port, they have power to provide cranes for the unloading of such vessels, and it is their duty to provide proper servants and labourers for working such cranes for the use of the public (2). The master of a vessel hired a crane from the Commissioners for the purpose of her discharge. He signed a request for its use, subject to the Commissioners' regulations, containing an agreement that he was to be responsible for all loss or damage arising from any improper use of the crane while so employed. The crane was put in position by the craneman, and the vessel was moved to a berth opposite it. The practice is that the buckets are filled by the hirer's servants, in the hold, one of whom directs the craneman to raise and lower each bucket, and to swing round the arm of the jib. The craneman regulates by a brake the speed of ascent and descent of each bucket, and he alone works the machine. While the plaintiff, being employed for that purpose by the ship-master, was filling a

bucket in the hold, an empty bucket, while being lowered by the crane, descended with great speed and violence, and struck plaintiff, who was seriously injured.

The craneman was employed and paid by the Commissioners, who alone could dismiss him. Except in directing buckets to be raised or lowered, neither the hirer nor his servants had any control over the craneman. If the ship-master was dissatisfied, his only remedy would be to direct the craneman to stop working, and to apply to the Commissioners to send another in his place, which they might or might not do. In no event could the hirer employ a servant of his own to work the crane; or procure a crane workable on the pier from anyone but the Commissioners.

In an action by the plaintiff against the Commissioners to recover damages for personal injuries, the jury found that the hirer had no authority to control the craneman otherwise than in respect of the time and place of movement of the crane, and the time of raising and lowering the buckets; that the bucket which injured the plaintiff got out of the control of the craneman through his negligence; and that this negligence was the cause of the accident.

Held, reversing the judgment of the King's Bench Division, who followed M'Fadden v. Belfast Harbour Commissioners (unreported, K. B. D., 11th May, 1903), that the plaintiff was entitled to a verdict, that the agreement of the hirer to be responsible for any improper use of the crane afforded no defence to the plaintiff's action, and that the plaintiff and craneman were not at the time of the accident fellow-servants engaged in a common employment.

Donovan v. Laing, Wharton and Down Construction Syndicate ([1893] 1 Q. B. 629) distinguished.

Action for damages for personal injuries sustained through the negligence of the defendants and their servants.

The statement of claim was as follows:—

1. On the 25th January last the plaintiff was engaged assisting to discharge a cargo of square setts from the schooner “Busy Bee,” then lying in Clarendon Dock, Belfast. 2. Through the negligence of the defendants in and about the management of a crane on the said Clarendon Dock, and by supplying an inefficient man to work said crane, a bucket was thrown or let fall upon the plaintiff causing him severe personal injuries, and putting him to expense for attendance and medicines, and rendering him for a very long time unable to attend to his business.

The plaintiff claims £1,000 damages.

In reply to the defendants' notice for particulars, the plaintiff alleged that the defendants were negligent in the management of the crane referred to in the pleadings:—

(a) By lowering the bucket without warning; (b) By lowering the bucket before having received instructions so to do (1).

The statement of defence was as follows::—

1. The plaintiff was not engaged assisting to discharge the cargo of square setts, as alleged in the first paragraph of the statement of claim, or at all. 2. The defendants deny that they were guilty of the alleged or any negligence in or about the management of the said crane. 3. The defendants den y that they supplied an inefficient man to work the said crane, or that they were guilty of the alleged or any negligence in the supplying of the said man. 4. The defendants deny that the said bucket was thrown or let fall upon the plaintiff. 5. It was not by reason of the alleged or any negligence on the part of the defendants that the said bucket was thrown or let fall upon the plaintiff. 6. The defendants deny that the plaintiff suffered the alleged or any injury or damage. 7. It was not by reason of the alleged or any negligence on the part of the defendants that the plaintiff suffered the alleged or any injury or damage. 8. The person or persons engaged in the management and work of the said crane was not or were not at the time of the alleged accident, or for any purpose connected with the discharge of the said cargo, or at all, the servant or servants of the defendants. 9. In the alternative, the defendants say that it was a term of the agreement entered into between them and William Chambers, the master of the said schooner, “Busy Bee,” for the hiring and use of the said crane by the said William Chambers, for the purpose of discharging the said cargo from the said schooner, that the said William Chambers should be responsible for any loss or damage which might arise from any improper use of the said crane during the time that it was engaged in the unloading of the said schooner, as the plaintiff previously and at the time of the alleged accident well knew, and that the alleged injury to the plaintiff arose solely from such improper use of the said crane.

The plaintiff by his reply joined issue, and submitted that paragraph 9 of the statement of defence was no answer to the action.

The action was tried by Madden, J., with a special jury of the city of Belfast, on the 15th and 16th of December, 1908. The following is the material portion of the evidence taken from the report of the learned Judge.

Edward M'Ilwain, mechanical engineer, examined the place on 20th October. The crane was on the rails. From the edge of the quay wall to the deck is from 8 to 9 feet. The hatch was 10 feet by 7 feet 6 inches. Each bucket could carry 4 cwt. If only one bucket was out, the craneman could see into the hatch. The jib of the crane is 31 feet 6 inches long. Its radius is 24 feet from the centre. The rope is coiled round a drum. It is coiled and uncoiled by machinery. There is a brake to regulate speed and assist the engineer in regulating it, so that an efficient craneman could prevent a bucket dropping into the hold. When a bucket descended too rapidly, it would indicate that the man had lost control of the crane. There are 110 feet round the drum. From top of the jib to the deck is 20 feet.

James M'Cartan, the plaintiff, stated that he was a sailor, from Annalong, thirty-seven years of age. Three boats were bringing cargoes of setts. All the crews helped in the discharge:—three hands in each. I belong to the “Christina.” I was ordered on board the “Busy Bee.” The hatch was open, and the cargo close up to it, about 2 feet. Chambers and Mayhew were on the bank. There were no empty buckets in the hold. We filled a bucket, and it was taken up by the crane. We proceeded to fill the second bucket. They were doing something on deck. I continued filling. I remember a bucket hitting me on the back. No order was given from the hold to lower the bucket. An empty bucket was never lowered, or a full one taken up, without an order from the men in the hold. They could be heard by the craneman. I am twenty years at the work. Only one bucketful had been taken out of the hold. Empty buckets are always lowered gradually. I never knew one come with a rush. The men in the hold catch them and unlock. [He then gave evidence as to the injuries, but as the amount of the damages was not objected to as excessive, it is unnecessary to give the evidence on this point.]

Cross-examined.:—The “Busy Bee” carried 140 tons. Was not all full. If loaded all over, would carry 286 tons. We were working carefully. I was stooping down filling stuff. J. Chambers and Mayhew were in the hold. W. Chambers tipped the buckets. I did not give him any directions. The hatchman gives instructions to lower or heave up. There were none given then. I did not hear Chambers give orders.

Re-examined.:—A hatchman was never employed in my time. I never saw the canter give orders to hoist or lower.

Joseph Chambers deposed.:—I was on the “Christina.” She had been unloaded. Some time before ten o'clock the “Busy Bee” began unloading. I was in the hold. She was brought round into position. One bucket only was taken out of the hold. I have been a sailor for one and a half years. The man in the hold tells the craneman when to lower. The second bucket came down all right, and we were loading it. The third came all of a slash. No order had been given. It hit the other bucket, struck the plaintiff, and knocked him senseless. There was a coil or two slack wire-rope in the hold. Duffy (1) said, “I would not for £100 it happened. It would be a bad job for me.”

Cross-examined.:—Duffy always got an order before lowering. The mate, Chambers, was on deck at the time. He was shifting the boat astern. Captain Chambers was canting on the...