Cockerill v William Cory & Son Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS,LORD JUSTICE SELLERS |
| Judgment Date | 06 May 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0506-2 |
| Docket Number | 1954. C. No. 3693 |
| Court | Court of Appeal |
| Date | 06 May 1959 |
[1959] EWCA Civ J0506-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Morris,
Lord Justice Sellers and
Lord Justice Wilimer.
Mr F. W. BEHEY, Q. C., and Mr J. L. ELSON REES (instructed by Messrs E. B. V. Christian & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr MONTAGUE BERRYMAN, Q. C., and Mr W. G. WINGATE (instructed by Messrs Botterell & Roche) appeared on behalf of the Respondents (Defendants).
On 28th November 1953 George Robert Cockerill, who was then employed as a boatswain on the steamship CORPIELD, fell to his death through an open hatchway. The ship was a Coasting collier of some 4,000 tons. The fatality occurred after the vessel had arrived at South Shields for the purpose of loading a cargo of small coal.
The widow of the deceased brought an action against the employers alleging that the death of the deceased was caused by negligence on their part, and also by reason of a breach of statutory duty. The action was heard by Mr Justice McNair who gave Judgment for the defendants. Appeal is now brought to this court.
The deceased was 33 years of age at the time of his death. After many years of service in the Royal Navy terminating in 1950 he had shore employment until the end of 1952. Then he decided to return to seafaring employment. In April 1953 he became an Able Seaman on the CORFIHLD. Proving himself to be an experienced and efficient seaman, he was promoted to be boatswain some few days before his death.
The CORPIELD is a self-trimming collier with wide hatch openings. The vessel has four holds, two of then being forward of the navigating bridge and two of them aft. The most forward of the cour hatches is the No.1 hatch, and it was through that hatch that the deceased, man fell to his death. The hatch comings are approximately of a height of 5 ft. from the main deck level. The No.1 hold is about 24 ft. deep. The hatch (that is No.1 hatch) has three thwartship sections each one of which is sub-divided. There arc therefore five hatch beams. Upon these the hatch covers are laid. The covers are about 10 ft. in length. The forward section of No.1 hatch tapers slightly and the distance between the coamings of this forward section and the bulwarks was 4 ft, 6 ins. The hatch at the aft end of the forward section is some 30 ft. in width. Plans and photographs were in evidence which illustrated the position of No.1 hatch. Forward of No.1 hatch the open forecastle space on the main dock is some 4 ft. in width.
The vessel arrived at South Shields at 7 o'clock on the morning of Saturday the 28th November 1953 and berthed at the Commissioners Staithes. As it was contemplated that loading would commence shortly after the vessol berthed, the hatch covers over Nos. 2 and 3 holds were removed as the vessel steamed up river. The usual order of loading the vessel was that holds Nos. 2 and 3 would first be completely loaded, then No.4 would be partly loaded, then No.1 would be partly loaded, and finally the loading of No.4 would be completed. No.1 would not be completely loaded because the trim of the voesel required that it should be only partly loaded. At 7.15 a. m. loading commonced in No.3 hold. At about 7.15 these who were due for week-end shore leave loft the vessel. They were Captain Muttit, the Chief Officer, and threo dock hands. Those who remained were the Second Officer (Mr Humphreys) the deceased and a dock boy aged about 17 years named Oliver. Two riggers from the shore came aboard.
At about 10 o'clock the Second Officer (Mr Humphreys) who was then in charge of the vessol gave instructions that No.1 hold should be partially opened up. As No.1 hold would only be partly loaded, it was only necessary to remove the hatch covers from the middle and aft sections of No.1 hatch. This was in accordance with the common practice on the vessel. All the covers from the middle and aft sections were accordingly removed, and the deceased took part in their removal. The hatch covers were placed on each side of the hatch between the coamings and the bulwarks.
At about 11 o'clock Mr Humphreys was informed by the Berthing Master or the Staitho Master that after No.3 hold had boon loaded no further cargo would, be available, Furthermore he was told that the vessel would have to vacate its berth for the week-end, and would have to move into the river to a position at tior buoys approximately 400 yards away. This involved that the vessel would have to be moored fore and aft. The normal method of mooring involved that a wire would be run out from the forecastle head, lowered to a boat, and then made fast to one of the buoys. In similar manner a wire would be run out from the stern and fastened on to another buoy. But it was also the practice to run out a heavier wire called an "insurance wire" from the bow to the forward buoy. That wire, being some 4½ ins. in circumference, would be heavier than the other mooring wires. The insurance wire would normally be stowed on a reel or drum under the forecastle deck ahead of No.1 hatch.
The evidence showed that the insurance wire sometimes gots kinked or rucked up. When this happens the procedure is adopted which is called "flaking down". This involves laying the wire on some surface, and whore necessary giving it a twist in order to take out the kinks so that thereafter the wire can the more easily be run out through the sheaths. The Master (Captain Mutt it) did, however, express the view that the insurance wire would not in fact need to be flaked.
The loading of No.3 hold continued until about 11.30. Thereafter a pilot came on board, and at about 12.15 the vessel cast off from the staithe. There was a tug to take the vessel to the buoys. The boy Oliver was up on the; forecastle head. He was dealing with the coiling of the wires by which the vessel had been moored at the bows. These wires were pulled in by winches. At that precise moment the boy Oliver did not see the deceased The next thing that he saw was that the insurance wire was hanging down in the hold. Observing this, he looked down into the hold, and he saw the deceased at the bottom of the hold. The deceased was lying on the port side. The boy Oliver's evidence suggested that the insurance wire had been previously lying partly on the deck and partly under the forecastle head on the port side of the vessel.
In these circumstances I agree with the learned Judge that it was a fair inference that the deceased must have got up on to the forward section of the hatch covers of No.1 hatch, and that he must have been engaged in pulling the insurance wire up on to the place whore he was standing. That inference was apparently accepted by both sides at the hearing. What happened to the deceased thereafter can only be a matter of conjecture, but, for some reason, either because he slipped, or because in handling the wire he lost his balance, he fell down to the bottom of the hold.
The claim that was made on behalf of the plaintiff in the action, who was the widow of the deceased suing as administratrix, was put forward on a two-fold basis. In the first place it was alleged that there was negligence at common law and in the second place it was alleged that there was a broach of statutory duty. In the defence it was alleged that the deceased was himself negligent in various ways, and that his negligence either solely caused or contributed to the accident.
The learned Judge rejected all the allegations of common law negligence, and in respect of such rejection no appeal is made It is not therefore necessary to recount or to consider the various allegations of negligence which were presented. The learned Judge further decided against the plaintiff's claim that there had boon a breach of statutory duty. He did however assess the damages that he would have awarded had he considered that liability was established. Though he did this, the learned Judge did not expressly deal with the various allegations of negligence made against the deceased.
The case put forward by the appellant relates solely to the allegations of broach of statutory duty. By a counter notice, presented by leave of the court, the respondents gave notice that they would contend, in support of the Judgment in their favour, that the death of the deceased was solely caused by his own negligence in the respects alleged in the amended defence.
The breach of statutory duty alleged at the hearing and on the appeal relates to Regulation 45 of the Docks Regulations 1934 (Statutory Rules and Orders) No.279. That Regulation reads: "No person shall, unless duly authorised or in the case of necessity, remove or interfere with any fencing, gangway, gear, ladder, hatch cove-ring, life-saving means or appliances, lights, marks, stages or other things whatsoever required by these Regulations to be provided. If removed, such things shall be restored at the end of the period during which their removal was necessary by the persons last engaged in the work that necessitated such removal". That Regulation appears in Part 5. The Regulations provide that it is the duty of all persons whether owners, occupiers or persons employed to comply with Part 5 of the Regulations.
On a consideration of Regulation 45 the question arises whether the words "required, by those Regulations to be provided" govern all that had gone before or whether they govern only the words "other things whatsoever". It is argued on behalf of the appellant that the latter is the correct construction. On that basis it is said that in the present case hatch coverings were removed and it is said that in breach of the requirement in the second sentence of the...
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