Norton v Canadian Pacific Steamships Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS |
| Judgment Date | 12 May 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0512-3 |
| Court | Court of Appeal |
| Date | 12 May 1961 |
[1961] EWCA Civ J0512-3
Lord Justice Sellers
Lord Juseick Harman and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
Mr. D. M. FORSTER (instructed by Messrs. Hill, Dickinson & Co.) appeared on behalf of the Appellants (Defendants).
Mr. J. G. BURRELL, Q.C. (instructed by Messrs. Helder, Roberta & Co. Agents for Messrs. John A. Behn, Twyford & Reece, Liverpool) appeared on behalf of the Respondent (Plaintiff).
: For more than a hundred years the porters on the Prince's landing stage in the port of Liverpool have been under some general control. In 1842 the previously unorganised men who attended there to carry luggage to and from a ship embarking or discharging passengers were controlled by a provision in the Liverpool Corporation Act of that year. Since then a licence, granted by the Liverpool City Council, has had to be held by every man doing such work and the granting of licences and the conditions relating thereto have been governed by by-laws made by the Council. During the last quarter of a century or more the by-laws have become out of date, especially in respect of the scale of charges, and have given way to the practice of the porters' work on the landing stage although a licence is still necessary and enforced.
The judgment finds, and it is accepted, that under the by-laws the porters are casual workers offering their labour at the quayside to move passengers' luggage but under police supervision as to their general behaviour.
There are two classes of porters, 57 luggage porters and 123 general porters at the time of the trial, for the whole of the floating landing stage, about three furlongs long, under "The Inspector of Licensed Porters", a Sergeant Hudson, who has a staff of three constables for these duties. Some sort of organisation has been established no doubt to reduce casual and intermittent occupation, as has been sought with dock labour generally, and the work of the porters has been controlled by a senior Head Porter and four Head Porters. At all material times the baggage master of the owners of a ship intending to embark or discharge passengers at the Liverpool landing stage would inform Sergeant Hudson's office, who would inform the senior Head Porter of the expected time of arrival of the ship and the number of passengers. The senior Head Porter would decide the number of porters required and under one of the Head Porters they would be detailed for the work. The number would of necessity have regard to the number of porters available. The practice had been, for some time, for the shipowners to pay for the porters' services a lump sum for the ship and a rate per passenger direct to the senior Head Porter, who was responsible for its distribution among the porters in whatever manner they had agreed. The current rate had risen to £20 per ship and 2s.0d. per passenger. This type of remuneration had for many years superseded the old scale of the by-laws, apparently without question.
The porters were clearly an independent body of men who plied for hire and rendered services in the carrying of luggage either for the passengers or for the ship who arranged and paid for the services for the passengers or as a facility which the shipowner provided for the convenience and comfort of the passengers in transferring their luggage between the ship and the Customs.
The contract between the defendant shipowners in this case and the passengers was not put in evidence. All that can additionally be said is that passengers' luggage was put on to the landing stage by means of a conveyor belt called a "creeper" before passengers would normally disembark. At the landing stage end it was received by the porters and moved by them across the stage to another conveyor belt which took it up to the Customs sheds, where it was received by other porters who took it to the appropriate place for Customs examination.
If these were all the facts no unusual question would have arisen. The legal problem of the present case has arisen because since about 1924 the porters have been using on the landing stage indiscriminately for their work of transporting baggage seven electric bogies, four provided jointly by the defendants and the Cunard Line and three by the manufacturers of all the bogies so used. The four bogies were maintained by the defendants and the Cunard Line, each company being responsible financially in alternate years. Apart from the fact that the other three were kept on the landing stage together with the four and were used by the porters as required for any ship of any owner who required the porters' services nothing I think is known about them from the evidence in this case. The porters drove them and, as far as the evidence goes, drove them without selection from their number and without instruction. No doubt they were simple to move and manoeuvre and in practice some porters may have driven more or less regularly and others but rarely.
On the 28th October, 1957, during the movement of passengers' baggage from the defendants' s. s. "Empress of Britain", a licensed porter Morris was driving by chance one of the four electric bogies provided, apparently in 1924 by the Cunard Line and the defendants jointly, and as he was moving the bogie in the vicinity of the creeper he ran into and injured the plaintiff Norton, a fellow-porter who was receiving baggage from the creeper.
Somewhat surprisingly the plaintiff, who, but for his accident and the legal advice concerning it, would I feel sure have stoutly refuted that he was anyone's servant or agent and have maintained that he was his own master, has sought damages for his injuries alleging first that the defendants were the masters of the porters, in particular of Morris, and were responsible for his negligent driving, and second that at the time of the accident Morris was the agent of the defendants in circumstances which made them so responsible. The negligence of the driver Morris was admitted by the defendants (and apparently not challenged by Morris, who was not a party to the action).
The Presiding Judge of the Court of Passage of Liverpool, in a carefully reasoned judgment on the submission, found against the plaintiff's main contention and held that Morris was not a servant of the defendants. The cross-notice of appeal from that finding was abandoned and no argument was heard on it. That part of the judgment therefore stands.
But the Presiding Judge has found in favour of the plaintiff on the ground that the bogie Morris was driving belonged to the defendants, as joint owners with the Cunard Line, and that in the circumstances Morris was driving as their agent at the time of the accident to the plaintiff. From this decision the defendants appeal and in my view they are clearly entitled to succeed. The porter Morris never lost his independence as a licensed porter and was in complete control of the services he was rendering, using the bogie purely for the better or quicker or easier performance of the duties for which he was engaged and paid. The passengers or the defendants, the...
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