Buchan v Scottish Steam Herring Fishing Company
| Jurisdiction | Scotland |
| Judgment Date | 12 June 1917 |
| Date | 12 June 1917 |
| Docket Number | No. 75. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Dundas, Lord Salvesen.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 7 (2)WorkmanFireman on fishing vessel partly remunerated by share of gross earningsRight to share in proceeds of scum.
The Workmen's Compensation Act, 1906, enacts, sec. 7, subsec. (2):This Act shall not apply to such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross earnings of the working of such vessel.
A fireman on a steam-drifter was employed upon a contract of service, under which he received a fixed wage of 35s. a week, and, along with the engineer and the cook, was also entitled to the proceeds of the scumthe name given to fish which fell from the nets as they were being hauled on board and were caught by the engineer in a hand net. The proceeds of the scum amounted to a substantial sum.
Held that, in respect of his interest in the scum, the fireman was partly remunerated by a share in the gross earnings of the working of the vessel; and accordingly that a claim for compensation under the Act in respect of his death was excluded by the subsection.
Opinion (per Lord Dundas), that Colquhoun v. Woolfe, 1912 S. C. 1190, is overruled by Costello v. Owners of Ship Pigeon,ELR [1913] A. C. 407.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), Second Schedule (17) (b)C. A. S. 1913, L. xiii. 17 (f)ProcessAppeal by Stated CaseTransmission of processRemit to arbitrator for certain findings.
Circumstances in which the Court refused a motion for transmission of the process in a stated case under the Workmen's Compensation Act, 1906, or alternatively for a remit to the arbitrator for certain findings.
In an arbitration under the Workmen's Compensation Act, 1906, in the Sheriff Court at Peterhead, in which Mrs Christina Strachan or Buchan, widow of George Buchan, fireman on the steam-drifter Petunia, claimed compensation for his death from his employers, the Scottish Steam Herring Fishing Co., Limited, the Sheriff-substitute (Young) held that the deceased's death was due to an accident arising out of and in the course of his employment, but refused compensation, in respect that he was remunerated by a share in the gross earnings of the working of the vessel, and that the claim was accordingly excluded by section 7 (2) of the Act.1 At the request of the applicant the Sheriff-substitute stated a case for appeal.
The case, so far as bearing on the question of the deceased workman's remuneration, set forth the following facts as admitted or proved:(10) That in the respondents' service the deceased, as one of the crew of the Petunia, had before and at the time of his death a fixed wage of 35s. a week in addition to food which was of the value of 10s. weekly, and along with the engineer and cook he was further entitled to a one-third share of scum and stoker as part of his remuneration. (11) That drifters belonging to Peterhead like the Petunia are engaged in fishing for herrings the whole year round practically, and there are usually employed a crew of nine men, the skipper and four deck hands and the engineer, fireman, and cook. (12) That in drift-net fishing a string or fleet of nets, connected together and to the drifter by a bush-rope or strong warp, is passed or shot out in a long line extending, it may be, for more than a mile or for nearly two from the vessel, and the fish are caught not by being enclosed in a sweep of the nets but by being immeshed, that is by running their heads and gills into the meshes of the nets. (13) That when the nets are being raised from the sea and taken on board the drifter, which moves slowly alongside the fleet of nets with that object, it happens that some of the fish captured fall from the meshes in which they have been caught, and it is the custom for the engineer, who is on deck for the purpose, to intercept these fish as they fall, or pick them up out of the water, with a net attached to a pole, the take so made being...
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Scott v Mitchell
...Lord Parmoor at p. 100, [1915] A. C. 217. 5 Millar v. Refuge Assurance Co., 1912 S. C. 37;Buchan v. Scottish Steam Herring Fishing Co., 1917 S. C. 565. 1 1910 S. C. 2 1916 S. C. 1. 3 Wilson v. Lyle, 1925 S. C. 824, Lord Hunter at p. 824. 4 Singer Manufacturing Co. v. ClellandUNK, (1905) 7 F......