PHESTOS SHIPPING Company Ltd v KURMIAWAN
| Jurisdiction | Scotland |
| Judgment Date | 08 December 1982 |
| Date | 08 December 1982 |
| Docket Number | No. 19. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Murray.
Master and servantIndustrial relationsTrade disputeActs in furtherance of trade disputeOccupation of ship by crew after dismissal to enforce wages claimWhether trespassWhether acts immunised by statuteInterdictInterim interdictBalance of convenienceTrade Union and Labour Relations Act 1974 (cap. 52), section 13.1
InterdictInterim interdictBalance of convenienceMaster and servantIndustrial relationsTrade disputeActs in furtherance of trade disputeOccupation of ship by crew after dismissal to enforce wages claimWhether trespassWhether acts immunised by statuteTrade Union and Labour Relations Act 1974 (cap. 52), section 13.1
The owners and managers of a ship berthed at Leith raised a petition, seeking interdict and interim interdict against her crew "from continuing in occupation and possession of, and remaining on board and trespassing on" the vessel. Inter alia it was averred that the ship was due to sail to Copenhagen with a cargo of coal and that the crew had refused to assist in moving the vessel from Leith. They had accordingly been dismissed from their employment with a tender of their "entitlement to wages". Despite their dismissal the crew refused to leave the ship, thus preventing the owners from putting on a new crew so that the vessel could sail and implement her charter. The owners were being deprived of the use of their ship, with consequent expense and loss of profit. The respondents (the crew) lodged answers, averring (1) that there was a trade dispute between the parties in respect of rates of pay and manning levels under the International Transport Workers' Federation collective agreement, (2) that the ship was the only place they had in which to live, their ordinary
residences being abroad, and (3) that the only consequence to the petitioners of their actions was an interference to their trade or business. The respondents tabled, inter alia, a plea-in-law as follows:"The respondents' presence on said vessel being in contemplation or furtherance of a trade dispute, the petition should be refused." After hearing parties in the motion roll the Lord Ordinary (Murray) refused the petitioners' motion for interim interdict on the ground that "the balance of fairness, and so the balance of convenience", favoured the respondents. They had stated a relevant defence of immunity under section 13 (2) of the Trade Union and Labour Relations Act 1974 that had a reasonable prospect of succeedingHeld (reversing the Lord Ordinary) (1) that this was a dispute over alleged breach of contract in respect of rates of pay, overtime and manning levels, and the respondents could raise an appropriate action of damages, arresting the ship on the dependence; and (2) that the balance of convenience was in favour of the petitioners; and interim interdict granted.
Observations (per Lord Dunpark) on section 13 (2) of the 1974 Act.
The Phestos Shipping Company Limited, a Cypriot company, and Gunther Schulz Schulayer, a West German Association, the owners and managers respectively of the m.v. Bulk Trader, berthed at Leith, raised a petition seeking interdict and interim interdict against Jefri Kurmiawan and five others, "formerly members of the crew" of the vessel, "from continuing in occupation and possession of, and remaining on board and trespassing on" the ship. Answers were lodged. The adjusted petition and answers inter alia averred as follows:
Article 1. That the First Petitioners are the owners and the Second Petitioners are the Ship Managers of the m.v. Bulk Trader, a general cargo vessel of 1,599 tons gross presently lying at Leith. The Respondents were formerly members of the crew of said vessel and are presently aboard it. The respondents' averments in answer are denied except insofar as coinciding herewith.
Answer 1. Admitted that the respondents are presently aboard said vessel. Not known and not admitted that the first petitioners are the owners and the second petitioners are the managers of said vessel.Quoad ultra denied. Explained and averred that the first named respondent is a cook and the second to sixth named respondents are seamen serving on said vessel.
Article 2. The said vessel berthed at Leith on 3rd October 1982. In terms of a Voyage Charter the Petitioners are bound to take on a cargo of bulk coal at Leith, sail to Copenhagen, there discharge said cargo and from Copenhagen proceed to Sweden to take on a further cargo. On 4th October 1982 loading of said cargo was commenced and at or about 1615 hours it was completed, said vessel being then loaded and ready to embark for Copenhagen.
Answer 2. Admitted.
Article 3. The Respondents were employed by the Second Petitioners as at 3rd October 1982 as the Cook and Seamen of said vessel. Their employment was in terms of the International Transport Workers' Federation collective agreement, a copy of which will be produced. On 4th October 1982, the Respondents refused to assist in moving said vessel when requested to do so by the Master, Captain Aden. Thereafter they were repeatedly requested to report for work, assist in moving the ship and man the ship to permit it to sail. They refused to obey said lawful commands of the Master. Accordingly, on the instructions of the Second Petitioners the Respondents were dismissed. The Respondents were advised of their dismissal from the employment of the Second Petitioners by notice posted in the Mess Room of said vessel at 1900 hours on 4th October 1982 and individual dismissal notices given to them at or about 0730 hours on 5th October 1982. Payment of their entitlement to wages has been tendered to the Respondents. Their employment as crew of the said vessel has accordingly been terminated. The respondents' averments in answer are denied except insofar as coinciding herewith.
Answer 3. Admitted that the respondents were employed as at 3rd October as the cook and seamen of said vessel. Admitted that their employment was in terms of the International Transport Workers' Federation collective agreement. Admitted that on 4th October 1982 the respondents refused to assist in moving said vessel. Admitted that dismissal notices were given to them on 5th October 1982. Quoad ultra denied. Explained and averred that said collective agreement provides that certain rates of pay will be paid to the respondents in respect of their employment, that certain payments will be made in respect of overtime and that certain levels of manning will be observed on said vessel. As at 4th October said rates of pay were not being paid to the respondents, no payments in respect of overtime had been made and said manning levels were not being observed. The petitioners and the master were thus in material breach of said agreement and of the respondents' contracts of employment. The master was requested to remedy said breaches and refused. The respondents therefore withdrew their labour because of said dispute with their employers over the terms and conditions of their employment. Reference is made to the averments in the action at the instance of the respondents against the petitioners which are adopted and held as repeated herein brevitatis causa.
Article 4. Despite the termination of their employment as aforesaid and a request by the Petitioners to leave said vessel teh Respondents have remained aboard. They occupy the Mess Room and sleeping quarters thereof. They therefore are in possession of the said vessel which belongs to the First Petitioners without any right, title or licence. They are wrongfully trespassing thereon. Further, by their presence they prevent the Petitioners putting on a new crew engaged by them to sail said vessel to Copenhagen and thence to Sweden. They are therefore preventing said vessel from sailing and thus preventing the Petitioners implementing said voyage charter. They are depriving the Petitioners of the use of their said vessel with consequent expense and loss of profit. They are depriving the Petitioners of the benefit of the services of said Master, his officers and said new crew. Said conduct is wrongful. The Petitioners are reasonably apprehensive that the Respondents will continue in occupation of said vessel and in said conduct. In these circumstances the interdict craved is necessary and reasonable and, having regard to the balance of convenience, interdict ad interim should be pronounced as craved. The respondents' averments in answer are denied except insofar as coinciding herewith.
Answer 4. Admitted that the respondents have remained on board said vessel. Admitted that they occupy the mess room and sleeping quarters thereof. Admitted that they are depriving the petitioners of the use of said vessel. Quoad ultra denied. Explained and averred that the respondents' presence on board said vessel is in furtherance of said trade dispute. The respondents have caused and are causing no damage to said vessel or its contents. Further explained and averred that the accommodation on board said ship is the only place the respondents have to live. They all have their ordinary residence abroad. The petitioners have at no time offered to obtemper their obligation under section 62 of the Merchant Shipping Act 1970 and international maritime law to repatriate the respondents. They therefore have nowhere to go. Believed and averred that petitioners would not be able to put a replacement crew on said vessel and sail it from the port of Leith. Explained and averred that the only consequence to the petitioners of the respondents said actions is an interference to their trade or business.
Standard pleas-in-law were tabled by both parties, but at adjustment the respondents added the following plea:"2. The respondents' presence on said vessel being in contemplation or furtherance of a trade dispute, the petition should be refused." The Lord Ordinary (Murray) heard parties in the motion roll on 12th October 1982, and again, after...
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