Oliver or Chapman v Saddler & Company

JurisdictionEngland & Wales
JudgeLord Buckmaster,Lord Atkin,Viscount Dunedin,.
Judgment Date29 April 1929
Judgment citation (vLex)[1929] UKHL J0429-1
CourtHouse of Lords
Date29 April 1929
Docket NumberNo. 11.

[1929] UKHL J0429-1

House of Lords

Lord Buckmaster.

Viscount Dunedin.

Lord Shaw.

Lord Atkin.

Chapman or Oliver and Another
and
Saddler and Company and Others.

After hearing Counsel, as well on Thursday the 7th, as on Monday the 11th, days of March last, upon the Petition and Appeal of Mrs. Elizabeth May Chapman or Oliver, Widow, as an individual and as Tutrix and Administratrix-in-Law of her pupil children John Oliver, Margaret Murray Oliver, Annie Chapman Oliver, James Chapman Oliver, David Oliver, and William Lough Oliver, all residing with her at 27, Bangor Road, Leith, and Isabella Moore Oliver, with the consent and concurrence of the said Mrs. Elizabeth May Chapman or Oliver, as her Curatrix and Administratrix-in-Law, residing at 27, Bangor Road aforesaid, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 20th of March 1928, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor 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 (which said Appeal was, by an Order of this House of the 13th day of November 1928, amended by substituting the names of Saddler and Company, and Peter Saddler and R. G. Cairns, the only known partners of the said firm of Saddler and Company, in the place and stead of Peter Saddler, as Respondents thereto); as also upon the printed Case of Saddler and Company, and Peter Saddler and R. G. Cairns, the only known partners of the said firm of Saddler and Company, 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 Interlocutor of the 20th day of March 1928, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Morison), of the 21st day of July 1927, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs of the Action in the Inner House of the Court of Session and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Lord Ordinary officiating on the Bills during the Vacation, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Buckmaster .

My Lords,

1

The real appellants in this case are the widow and live children of a dock porter named John Oliver who died on December 21st, 1925, owing to injuries he received on December 10th, 1925, while unloading grain from the S.S. Platon at the port of Leith.

2

The Respondents are a firm of stevedores who were separately employed in an independent operation connected with the discharging the cargo on the day in question.

3

The injury of John Oliver was caused by the breaking of a defective rope, the property of the Respondents, which formed the sling holding six bags of grain. The rope broke as the grain was being swung from the deck of the vessel to the quay, with the result that the bags fell on the deceased.

4

These facts are not in dispute. What is disputed is the allegation that the Respondents owed any duty to the deceased to see that the rope was sound and alternatively if such duty existed, the Respondents say it was discharged.

5

These issues were found against the Respondents by the Lord Ordinary who tried the case and in their favour by the First Division of the Court of Session.

6

The first of the issues involves a question of law upon which I have found little help in considering the statement of general propositions such as those contained in the judgment of Lord Esher in the case of Heaven v. Pender, 11 Q.B. D 503. The duty alleged to have been owed by the Respondents to the deceased is said to arise out of a combination of special circumstances that have nowhere been the subject of decision and these circumstances require close examination.

7

The method of unloading a ship at the port of Leith involves the employment of two distinct groups of men who are severally employed by the owners of the ship and the receivers of the cargo. The former are the stevedores and the latter the porters.

8

In the case of a grain cargo the ship-owners give delivery on to steelyards on the vessel's deck, where the bags are placed by the stevedores who lift them from the hold; from the deck the porters take control and discharge the cargo on to the quay. The method adopted for this latter operation is at the discretion of the porters and depends in part on the tide and the height at which the vessel is riding. If the deck is above the quay it is obvious that the simplest method is to slide the bags down a gangway, but under different conditions such as those existing in the present case, the bags are slung from the deck to the quay by cranes belonging to the Leith Dock Company. Although the operations of bringing the bags on to deck and transferring them to the quay are distinct, there is one feature that remains throughout, and that is the grouping of the bags in sets. This is effected by the stevedores in the hold of the vessel who provide the ropes necessary for the slings in which the sets are placed. These slings are never undone throughout the combined operations. The bags are hauled up by the stevedores and placed on the steelyards; the slings are then detached from the derrick and hooked to the crane tackle and immediately slung ashore. It is in the interests of everyone concerned in the expeditious discharge of the cargo that these operations should be continuous.

9

The ropes which are provided by the stevedores are thus used throughout and this is the common and accepted practice. The danger due to imperfection in the ropes is well known and the stevedores have a man whose business it is to make the slings and to examine these ropes before use both those that are new and those that have been used. With him also lies the custody of the ropes and so important is this constant supervision that the ropes are kept separate, the new ones being separated from those once used. It is in fact essential for the safety of all concerned that the ropes should be kept under constant examination to detect any weakness that might from time to time arise.

10

The nature of the operation itself is such that effective examination by the porters is almost impossible.

11

To examine the rope when the goods are taken off the steelyard would involve complete unloading of the set, and when the bags are released, the rope is, in the ordinary course, withdrawn for the next consignment.

12

It is stated in the evidence that in these circumstances the porters relied on the stevedores to examine the ropes, that the stevedores knew that such reliance was placed on them, knew the danger, knew that in the accepted course of unloading the porters could not properly make the examination themselves and did not make it, and that consequently they owed a duty to see that such examination was made with due care and skill. This evidence is in part contested by the Respondents, but in substance I think it must be accepted. The defenders witness, David Moffat, says that his men�that is the stevedores�are "deeply interested" in the slings, especially when working underneath them, and again he says he relies on "the rigger," that is the rope inspector, seeing that the rope is good, and that "all the men who work with the cargo rely on the rigger seeing that all the ropes are good."

13

There is other evidence to the same effect and also evidence explaining and attempting to modify these statements, but the character of the operation itself, well known and established for some years, seems to me to lead irresistibly to the conclusion that the evidence I have quoted fairly states the true position and I agree in the conclusion of Lord Morison that these circumstances did disclose a duty cast on the Respondents to take proper steps to see that the ropes were safe. That inspection was essential is common ground, that the opportunities for such inspection by the porters was extremely limited, and, without interruption of the operation, could not be properly carried out, seems to me plain and that in these circumstances the Respondents, who knew that their inspection was relied on by the porters for their safety, discharged the duty of inspection on behalf of all parties is in my opinion the only reasonable inference. It does not therefore seem to me that the Lord President accurately stated the position when he said the question to be answered remained as to whether the rope was being used on the stevedore's business and that he considered the case concluded by the case of The Caledonian Railway Coy., v. Mulholland or Warwick. 1898, AC. 216. a case which influenced the judgment of the other learned judges and, if it is relevant to the case, binds ours as well. In my opinion, however, the critical features of this case are lacking in the authority named.

14

In that case coal was put into the trucks of the Caledonian...

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