Mackinnon v Miller
| Jurisdiction | Scotland |
| Judgment Date | 12 January 1909 |
| Date | 12 January 1909 |
| Docket Number | No. 67. |
| Court | Court of Session |
Lord President, Lord M'Laren, Lord Kinnear.
Master and ServantWorkmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 1 (1)Accident arising out of EmploymentInference from proved facts.
In an arbitration under the Workmen's Compensation Act, 1906, in which the dependants of A, who had been employed as engineer on a steam tug, claimed compensation in respect of his death, the following facts were proved:On the morning of 15th February 1908 the tug was lying moored to a barge which was moored to a jetty, and at 5 a.m. A was seen in his bunk. An hour later it was found that A had disappeared, leaving his working clothes beside his bunk. Two days thereafter A's body, clothed in nightdress, was found by a diver in the sea near the place where the tug had been moored on 15th February. According to the medical evidence A's death was due to drowning, but there was no evidence as to how he met his death. The deceased was a man of cheerful disposition and of steady habits, and his death was not caused by suicide.
The arbiter having found that A's dependants were entitled to compensation, held that the arbiter was entitled to draw the inference which he had drawn from these facts, that A's death was due to an accident arising out of his employment, and that the Court could not interfere with his decision.
Master and ServantWorkmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), secs. 1 (1), 7, and 13EmployerAccident to Seaman.
The registered owner of a vessel was, under a charter-party, bound to provide and pay a crew of two men, and had the sole power to dismiss them. The possession, control, and management of the vessel under the charter-party belonged to the charterer. After the vessel had been delivered to the charterer one of the crew appointed by the owner was killed. Held that the owner, and not the charterer, was the person liable in compensation under the Workmen's Compensation Act, 1906.
In an arbitration under the Workmen's Compensation Act, 1906,* in the Sheriff Court at Edinburgh, in which Mrs Helen Moncrieff Whitecross or Miller sought compensation for herself and her child in respect of the death of her husband from Archibald Mackinnon, Leith, the Sheriff-substitute (Guy) awarded compensation, and at the request of the defender stated a case for appeal.
The case set forth the following facts as proved:(1) The apeallant
is the registered owner of the steam tug Renown of Leith. (2) The Renown is a small screw steamer of 1522 tons register, 70 ft. in length, and 165 feet beam. (3) The deck of the Renown, which is of iron except the forward part, which is planked with wood, is all practically flush, but in the centre of the deck the boiler casing projects from it to a height of about a foot at the part nearest the bulwarks, and to a greater height in the centre of the vessel, while the wheel by which the vessel is steered is placed at the forward end of the boiler casing. (4) Bunks for the crew were provided in the part of the vessel forward of the engine and boiler space. (5) Access to the fore cabin was obtained by a small hatch on the deck a few feet forward from the wheel. (6) On the deck in front of the boiler casing and wheel were a water tank and a chain chest of about 2 ft. in height. (7) Access to the engines and to the firehole and to an after cabin in which stores were kept could only be got from the sleeping place by coming on deck by the said hatch and passing along the deck between the boiler casing and the bulwarka space about 3 ft. 6 ins. in width. (8) The bulwark was 20 inches in height.(9) The steering chain crossed this narrow part of the deck on either side abreast of the wheel, and would lie either upon the deck or 2 or 3 inches above it, according to how the wheel had been left; there was a closet in the forepeak entering off the fore cabin, but owing to the discomfort caused by the smell proceeding from it the crew did not use it, but went to the firehole in order to relieve themselves.(10) The deceased George Aitken Miller, engineer, who resided at 38 Hawthornvale, Leith, was one of the crew appointed and paid by the appellant. (12) In January 1908 the said steam-tug was chartered by Sir John Jackson, Limited, for towage purposes in Loch Linnhe, Argyllshire, and its branches. (13) The appellant was bound under the charter-party to provide and pay a crew consisting of two men, while the charterers were to appoint and pay the master and any additional men that might be required; the charterers had no power to dismiss the said two members of the crew; the insurance of the vessel, and all provisions, deck, and engine-room stores were to be paid by the appellant, by whom the vessel was to be maintained in an efficient state, while fuel, port charges, &c. were to be paid by the charterers, (14) On 6th February 1908 the Renown sailed from Leith to go via the Caledonian Canal to Ballachulish for delivery to the charterers. (15) She arrived at Ballachulish on or about 11th or 12th February, and was, on the 12th February, delivered to the charterers, from which date she was being employed under the said charter, and the possession, control, and management of the said vessel were in the charterers. (17) On the night of Friday, 14th February 1908, the said steam-tug was moored to a barge which was moored to the jetty at Kinlochleven. (18) On the night and morning of the 14th and 15th February there were no lights burning on the Renown, and her deck was in darkness. The weather conditions were such that there was no unusual motion of the ship. (19) The Renown was to be ready to commence towing at seven o'clock on the morning of 15th February. (20) On the night of 14th February the master, the said George Aitken Miller, and the fireman were on board and occupied their usual sleeping-bunks in the cabin, and the deceased was then in his usual health, and had apparently nothing on his mind, and was looking forward to the respondent coming to Ballachulish with his son in July following. (21) About five o'clock on the following morning Nicholas Wills, the master of the Renown, and the fireman were both awake, and saw the deceased in his bunk. (22) After- wards they fell asleep again, but about six o'clock the deceased was not in his bunk. (23) The deceased was never again seen alive, and no person witnessed how he came by his death. (24) One of the bunker lids of the Renown was missing at the same time as the deceased and has never been found, but it was not proved that this had any connection with the deceased's death. (25) The duties of the fireman usually took him on deck about an hour before the deceased commenced duty. (26) The master of the Renown had ordered steam to be got up for seven o'clock on the morning of the 15th of February. (27) The said fireman went on deck about 6 a.m. on the 15th of February. (28) The deceased by that time had disappeared, leaving his working clothes lying at the side of his bunk. (29) On the afternoon of Monday, 17th February, the deceased's body was found by a diver in the employment of Sir John Jackson, Limited, in the water close to where the Renown had been lying on Saturday morning. (30) The deceased's body when brought up by the diver was dressed in his ordinary sleeping clothes as usually worn by him. (31) The body was examined on the same day by Dr M'Dougall, who found no marks on the body to indicate that the deceased had sustained any injury before getting into the water. In Dr M'Dougall's opinion the death of the deceased was caused by asphyxia, caused by drowning, and he certified it accordingly. (32) The deceased, George Aitken Miller, had been for a considerable number of years in the employment of the appellant, and he was a man of a cheerful disposition, and of sober, steady habits, careful in his work in every way, and enjoying the esteem of his employers. He was a good husband and father, and was happy in his home life. He enjoyed good health, but was slightly lame, the lameness not being of such a kind as to interfere with the performance of his duties as engineer. He was unable to swim. He did not commit suicide.
The Sheriff-substitute also stated:I accordingly, taking into consideration the whole facts, proved and admitted, drew the inference in fact, that, about 6 a.m. on the morning of 15th February, the said George Aitken Miller left his bunk, went on deck, and accidentally fell overboard and was drowned, and that said accident arose out of and in the course of his employment as a seaman on board said vessel. I further found that the appellant, being the registered and actual...
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