Ellerman Lines Ltd v Murray; White Star Line & Company v Comerford
| Jurisdiction | England & Wales |
| Judge | Viscount Dunedin,Lord Blanesburgh,Lord Tomlin,Lord Macmillan |
| Judgment Date | 09 December 1930 |
| Judgment citation (vLex) | [1930] UKHL J1209-1 |
| Court | House of Lords |
| Docket Number | Case No. 222 |
| Date | 09 December 1930 |
[1930] UKHL J1209-1
Viscount Dunedin.
Lord Blanesburgh.
Lord Warrington of Clyffe.
Lord Tomlin.
Lord Macmillan.
House of Lords
After hearing Counsel on Tuesday, the 4th day of November last, upon the Petition and Appeal of the Ellerman Lines, Limited, the Owners of the Steamship "Croxteth Hall," of 19/21, Moorgate, in the City of London, praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of His Majesty's Court of Appeal, of the 2d of May, 1930, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of John Murray, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 2d day of May, 1930, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
After hearing Counsel on Tuesday, the 4th day of November last, upon the Petition and Appeal of the White Star Line of Royal and United States Mail Steamers Oceanic Steam Navigation Company, Limited, Owners of the Steamship "Celtic," of 30, James Street, Liverpool, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of His Majesty's Court of Appeal, of the 2d of May, 1930, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Joseph Comerford, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 2d day of May, 1930, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The facts in this case, so far as material, are capable of being stated with the utmost brevity.
The ship "Croxteth Hall", on board of which the Respondent was a seaman, was wrecked and lost on the 28th February, 1929. At that time she was homeward bound, and, if nothing untoward had happened, the crew would have been paid off at Middlesbrough on the 11th March, 1929. The crew were brought home to Liverpool, and on 4th March the Respondent was paid off. The Respondent claimed wages for two months from 28th February. He was, in fact, unemployed for that period, and, though he had tried, he had not been able to secure employment. The Appellants expressed their willingness to pay, and did pay, the wages up to the 11th March, the date on which the payment for the voyage would have taken place if it had been terminated in due course, but refused to pay any more.
The Respondent started proceedings to recover the two months wages, so far as unpaid, in a Court of Summary Jurisdiction in Liverpool. The case was referred to the Probate and Admiralty Division of the High Court, under the provisions of 163 (3) of the Merchant Shipping Act, 1894. Lord Merivale, the President of that Court, gave judgment in favour of the present Respondent. Appeal was taken to the Court of Appeal, who, by a majority, Slesser, L.J., dissenting, confirmed the judgment. There had been, in fact, certain other points mooted before Lord Merivale, but they have disappeared from the case and need not be mentioned. From that judgment there is the present appeal.
At Common Law, if a ship was lost on a voyage, a seaman who, although through no fault of his own, could not, in fact, perform his share of the contract of service could recover nothing. This was altered by section 158 of the Merchant Shipping Act of 1894, which gives wages up to the time of the wreck which terminated the service. Then comes the statute on the interpretation of which the matter turns. It is the Merchant Shipping International Convention Act, 1925, and the relevant sections are as follows:—
"(1) Where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement, he shall, notwithstanding anything in section one hundred and fifty-eight of the Merchant Shipping Act, 1894, but subject to the provisions of this section, be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of the termination of the service, to receive wages at the rate to which he was entitled at that date.
(2) A seaman shall not be entitled to receive wages under this section if the owner shows that the unemployment was not due to the wreck or loss of the ship and shall not be entitled to receive wages under this section in respect of any day if the owner shows that the seaman was able to obtain suitable employment on that day.
(3) In this section the expression "seaman" includes every person employed or engaged in any capacity on board any ship, but, in the case of a ship which is a fishing boat, does not include any person who is entitled to be remunerated only by a share in the profits or the gross earnings of the working of the boat."
My Lords, I confess that I have had considerable difficulty in coming to a conclusion in this matter, but in the end I have come to think that the judgment of the Appeal Court is right. It is necessary to say that in the enquiry held before Lord Merivale it was shown that it was the custom for men who had been on this ship to be allowed to sign on for the next voyage. In other words, if nothing untoward had happened, it would have been more likely than not that the Respondent would at once have been taken on for the next voyage, and so would not have remained in unemployment. The Appellant was very anxious to point out that the Convention, to give effect to which the Act was passed, uses the word "indemnity", and the only proper indemnity that could therefore be given was the wages, so far as they could be due under contract, which contract was frustrated by the wreck. I do not think there is anything in this argument, and for this reason. If "indemnity" is used in a loose sense, what is given by this Act is an indemnity whichever of the two views be taken, but if it is used in a strict sense—and unless it is so used it is no use to the Appellant—then it is very significant that, although the framers of the Act are well aware of the word, for they refer to it in the Preamble, when it comes to the operative section they do not use it. I think, therefore, we must take the Act as it stands.
Now, I do not think that there is any doubt whatever as to the meaning, for I find no ambiguity, in subsection 1 of section 1. There must be a wreck which terminates the service, which service is spoken of as being under an agreement; and, if so, it is obviously possible that the agreement provides for a definite termination. If that is so, then there must be in fact unemployment for two months, and if all these facts concur, then he is entitled to two months of his old wages running from the termination of the service, i.e., the wreck. That is all expressed quite absolutely, and the question would be at an end were it not for the words "subject to the provisions of this section". That indicates that there is something else to come. That something else comes in subsection 2, but here the onus, so to speak, is shifted. The seaman must show the various things I have enumerated to bring him under subsection 1. If he does that, his portion is accomplished. Then the ship-owner, to get out of that position, must show what is demanded in subsection 2 "if the owner shows …". It has been found as a fact in this case that the owner cannot show that the seaman was able to obtain employment on any day within the two months.
The sole question, therefore, left is: Can the owner show that the unemployment was in fact not due to the loss of the ship? I do not think he can. The onus is on him. It is not for the seaman to show that he would have been employed. It is for the owner to show that he would not have been employed, and on the face of the evidence as to what would have happened if the ship had still been in being. I do not think that the owner can do so.
But, as Scrutton, L.J., says, each case must depend on its own facts. On the facts in this case, I think that the Respondent has clearly brought himself within subsection 1, and the Appellant has not discharged the burden imposed upon him in subsection 2 to take the Respondent out of the operation of subsection 1.
I move, therefore, that the appeal be dismissed.
My...
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