Huddart Parker Limited v Cotter [1942] HCA 34

Huddart Parker Limited v Cotter [1942] HCA 34 - HCA 1942 case summary — Zoe

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It appeared that the Zealandia was powered by seven Scotch marine boilers. There were two stokeholds, a forward and an aft stokehold. The forward stokehold was a space about thirty feet long, running from side to side of the ship, and about ten feet wide between the No. 7 boiler and the port and starboard bunkers, and Nos. 1, 2 and 3, which were on the after side of this space. The other boilers, Nos. 4, 5 and 6, were behind boilers Nos. 1, 2 and 3. No details were given about the arrangements there, except that it was described as the after stokehold, and behind that again came the engime-room. Scotch marine boilers consist of a metal cylinder of substantial size with three heating units, two being described as wing or upper furnaces, and the other as the lower furnace which is in the centre. Hach furnace has a place where the coal itself is consumed with an ashpit underneath. There is a lead through to a combustion chamber at the back, and from there the flame, hot gases and smoke are led through the smoke tubes back to the front of the boiler where they escape into the smoke box and from there away to the ship's funnel. The essential feature of Scotch marine boilers is that the tubes do not carry any water, but carry only the flame and hot gases. The water itself is contained in the cylindrical part of the boiler, forming, as it were, a water jacket. This com- pletely surrounds and encloses the three heating units. The water- jacket at the back, behind the combustion chamber, contains, as it were, a wall of water enclosed between the back wall of the combus- tion chamber and the back wall of the boiler itself, a space about fourteen inches from side to side. The two walls are secured one to another by a number of stays, which are threaded steel rods varying in size from 13 up to 1% inches in diameter. They are threaded for their full length and screwed through holes which are made in each of these two walls, which are themselves threaded. They are further secured by nuts which are secured on to the out- side of the wall of the boiler itself and inside the wall of the combus- tion chamber so as to prevent any possibility of the metal walls expanding or becoming distorted. There are about five hundred of these stays in a boiler, so that, in view of the possibilities of corrosion and other injury, it is a matter of some moment to ensure that they are maintained in proper order, and precautions are taken so that any corroded, broken, or defective stays may be removed and replaced. At the time and on the date mentioned above the stay in the port margin of the back combustion chamber in the third row from the bottom fractured in such a manner that one short end was

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Mason K.C. (with him A. R. Taylor), for the appellant. The law applicable is the law of the State of Victoria, that being the State in which the port of registry of the S.S. Zealandia is situated. An employer is bound (a) to provide proper and suitable plant, (b) to select fit and competent workmen, and (c) to provide a proper and safe system of working. Included in those obligations is a duty to provide a proper system for the maintenance of his plant, but he is not responsible for the negligent failure of an employee in using or operating that system. There are certain duties, apparently, which an employer cannot delegate. He cannot avail himself of the doctrine of common employment with regard to certain duties. Those duties which he cannot delegate may be put as (a) a duty to provide proper plant, and (6) a duty to instal a proper system of maintaining that plant. But if an employer has performed those duties and an accident happens to an employee in working the proper system of maintenance so provided the doctrine of common employment applies (Walsons and Clyde Coal Co. Ltd. v. English (1); Wilson v. Merry (2) ; Grantham v. New Zealand Shipping Co. Ltd. (3) ; O' Melia v. Freight Conveyors Ltd. (4); Gutteridge v. Frederick Leyland & Co. Lid. (5)). The evidence establishes that the appellant did provide proper and adequate plant ; that for the purpose of main- taining that plant a proper and accepted system was followed, a system of periodically inspecting the plant for the purpose of ascer- taining whether it required anything done to it ; and that that system was operated in the usual way and at the usual period of time. The appellant's system of supervision and maintenance was not adversely commented upon but, on the contrary, was commended. It has not been suggested that the appellant's employees were incompetent (Ogden v. Melbourne Electric Supply Co. Ltd. (6)). Tf the accident was due to negligence it was due to the negligence of somebody in carrying out that system. That somebody was a fellow employee of the respondent's, and therefore the doctrine of common employment applies. If the chief engineer erred in. judg- ment as to the need or the proper time to repair the boiler, that does not constitute or evidence negligence. A distinction should be drawn between want of repair due to the running of the plant and want of repair which may be done either while the plant is in

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operation or at rest (Ogden v. Melbourne Electric Supply Co. Ltd. (1) ). Also, a distinction should be drawn between a defect in a condition due to ordinary wear and tear and negligent repairing. The appel- lant took reasonable care to ensure that the plant was in a reasonably safe condition (Cole v. De Trafford [No. 2] (2); Webb v. Rennie (3) ). The jury should have been directed that if the chief engineer had failed in an error of judgment as to the time he should take action that was not negligence. The experts agree that it is ordinary practice to leave it to the engineering staff to renew the stays. That is a risk accepted by all employed on ships. The injury to the respondent was caused as the result of the opening of the furnace door by the second engineer, a fellow employee of the respondent, which if done negligently comes within the doctrine of common employment (Hedley v. Pinkney & Sons Steamship Co. Ltd. (4) ). This constitutes a novus actus intervenens subsequent to and apart from the original negligence alleged against the appellant, which, upon the application of the doctrine of common employment, absolves the appellant. The cause of the injury to the respondent was a fresh and independent act of the second engineer and was such an act as could not reasonably have been foreseen by the appellant (In re Polemis and Furness Withy & Co. Ltd. (5); Weld-Blundell v. Stephens (6); Cutler v. United Dairies (London) Ltd. (7); Haynes v. Harwood (8) ). The measure of the appellant's duty and respon- sibility is to be found in secs. 46 to 60 inclusive of the Navigation Act 1912-1935, This is not in addition to an employer's common law lability, but is the total measure of his liability. The evidence shows that the Zealandia was seaworthy as required by the Act (Hedley v. Pinkney & Sons Steamship Co. Ltd. (4) ) - see also Couch v. Steel (9), Rogers v. Loutit (10) and Namby v. Joseph (11). The trial judge should have directed a verdict for the appellant. Alter- natively, there was no justification in law for the directions contained in his summing up based on the question of a major or minor defect.

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employed as suitable and safe as the exercise of care and skill would permit so as not to expose him to unnecessary danger (Smith v. Baker & Sons (1); Jury v. Commissioner for Railways (N.S.W.) (2); Naismith v. London Film Productions Ltd. (3); Wilsons and Clyde Coal Co. Ltd. v. English (4); Ogden v. Melbourne Electric Supply Co. Ltd. (5) ). That common law duty cannot be delegated. It is not satisfied by the appointment and employment of competent servants (Wilsons and Clyde Coal Co. Ltd. v. English (4); Navsmath y. London Film Productions Ltd. (6); Charlesworth, Law of Negli- gence, (1938), pp. 476, 478, 480, 483). It is a question of fact whether in all the circumstances the employer has exercised reasonable care in the fulfilment of this duty, and, therefore, where the plant is shown to be defective and dangerous prima facie there has been a breach of that duty. The supervision of plant is the obligation of the employer (Wilson v. Merry (7); Ogden v. Melbourne Electric Supply Co. Lid. (8)). It is not only necessary that the employer should take reasonable care, but he must ensure that his delegates also take reasonable care (Jury v. Commissioner for Railways (N.S.W.) (9) ). Cole v. De Trafford (No. 2] (10) is inconsistent with those cases unless it be taken as merely deciding that the position as regards ordinary domestic premises in relation to a chauffeur is quite different from providing and maintaining proper plant and equipment in working operations. The doctrine of common employment cannot be relied upon to defeat the injured servant when his injuries have resulted from the breach by the employer of this common law duty as stated (Wilsons and Clyde Coal Co. Ltd. v. English (4) ; Charles- worth, Law of Negligence, (1938), pp. 481, 482). The doctrine of common employment is based upon the view that employer and employee are deemed to have agreed inter se that the latter will hold the former indemnified against the negligence of a fellow employee causing injury to the latter (Radcliffe v. Ribble Motor Ser- wices Ltd. (11); Charlesworth, Law of Negligence, (1938), p. 467). The employer's duty is fourfold: (a) not to be personally negligent, (b) to appoint and employ competent employees, (¢) to ensure the safety of his premises and plant, and (d) to have a proper system of working his plant and carrying on his undertaking. The duty qua premises is independent of and distinct from the duty qua system. The respondent's case is based on defective premises and plant.

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it refers repeatedly to the duty qua premises and plant. When the duty qua premises and plant is breached by negligence it does not matter whether it is the negligence of a fellow employee simply or whether it is the employer's personal negligence or whether it is the result of the failure to provide a proper, non-negligent, system or whether it is the result of a negligent interruption of a proper system if the defect could have been prevented, removed or remedied by the exercise of reasonable care and skill. In such a case the employer cannot rely upon common employment to escape liability. The situation qua plant is to be distinguished from the case where the injured employee relies not on defective plant but solely on system of working. In the latter case he can be met by common employ- ment, where it applies, unless he can show that the system itself was defective. This failure to distinguish between plant and system cases is the fundamental fallacy of the appellant's argument. It assumes that whenever an employer establishes a proper system he escapes liability. But this is not so in premises cases. The unnecessary danger to which the respondent was exposed resulted in damage through the consequent act of the second engineer in opening or causing to be opened the door and releasing into the stokehold a large volume of water which had previously been boiling under pressure. There was no novus actus interveniens (Halsbury's Laws of England, 2nd ed., vol. 23, pp. 590-596). The matters were intimately associated. Attempting to deal with the emergency was not an improbable consequence of the initial negligence. The chain of cause and effect is complete and the damage was in fact the direct result of the negligence complained of (Harrison v. Great Northern Railway Co. (2); Paterson vy. Mayor &c. of Blackburn (3) ; Sullivan v. Creed (4); Haynes vy. Harwood (5)). Having regard to the state of the evidence the trial judge should have directed the jury that the injury to the respondent arose from the failure by the appellant to have reasonable care and skill utilized in connection with the boiler: See Phillips v. Ellinson Brothers Pty. Ltd. (6). In dealing with the argument for the appellant the preliminary question is: What law applies? The answer is: The lex loci contractus, 1.e., the law of New South Wales (P. & O. Steam Naviga- tion Co. v. Shand (7)). That law includes the statutory provision in sec. 65 of the Workers' Compensation Act 1926-1938 (N.S.W.)

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abolishing the doctrine of common employment, or, more correctly stated, that law does not include the doctrine of common employ- ment, so that that doctrine cannot be implied in a contract of service governed by the law of New South Wales. The fallacies in the argument for the appellant are : (a) if the Navigation Act provides a complete code, it would displace not merely all other statutory pro- visions and different agreements the parties themselves may wish to make, but also the common law as to implied terms. That it is incom- plete is patent, e.g., it is silent as to the liability of the employer for negligence. It cannot be assumed that the contract is meant to take away rights in tort by remaining silent as to them, and (6) being a contract all the law of New South Wales, being the proper law of the contract, has to be applied. Further, its whole legal effect will be con- sidered in accordance with the law of New South Wales. It is entirely irrelevant to say that the employees of the appellant may have contracts differing in some respects from the respondent's contract because'of the application of different law. That is one of the normal incidents of entering into contracts of this kind in different places. There is no reason for treating contracts of service on some different and special footing. There is no Commonwealth common law of contract, and no Commonwealth statutory law of contract. Each State has a different law of contract; the position gua tort and criminal law is the same (Washington v. The Commonwealth (1) ; Re McArthur (2); McArthur v. Williams (3) ). The Federal legislature must be deemed to have known that the proper law of the contract is the lex loci contractus unless the parties expressly agree to be bound by some other law. The Navigation Act is silent on the matter, therefore it must be regarded as confirming that position. The Navigation Act does not prevent the implication of any terms in a seaman's contract. On the face of it sec. 59 of that Act recognizes that there may be an implied agreement or an element of an agreement for service between the master for the shipowner and the seaman. In the case of master and servant, the law implies certain obligations on the part of the master ; it further implies, if certain exceptions arise, the doctrine of common employment. The Navigation Act merely provides an incomplete form. The terms to be implied are the terms implied at the date the form was used and the contract entered into. Implied terms of a contract are as much a matter of the express contract as if included therein (JZulvay vy. Henry Berry & Co. Pty. Ltd. (4); Hart v. MacDonald (5) ). One (1) (1939) 39 S.R. (N.S.W.) 133, at p. (3) (L93¢ } 324, at pp. 339, 139 ; 55 W.N. 60, at p. 61. 350.

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In Radcliffe v. Ribble Motor Services Ltd. (1) Lord Macmillan said : - "The immunity of an employer from responsibility for injury sus- tained by one of his workmen through the negligence of a fellow workman is regarded as an implied term of the contract of employ- ment, by which is meant that the law imports this term into the contract although the contract says nothing about the matter. The law is chary of implying in contracts terms which the parties them- selves have not thought fit to express, and will not do so unless the implication is necessary in order to give effect to the intention of the parties as gathered from the nature and terms of their expressed contract. The passages I have quoted disclose the grounds on which the judges of England and the United States justified the importation into the contract of employment of the implication that the servant must be presumed to have accepted the risk of his fellow servant's negligence. Whatever validity these grounds may have possessed a hundred years ago, it is manifest that in these present days of large scale industry they have no foundation what- ever in fact. The assumed facts are nowadays a sheer fiction. Yet the rule of law persists, though substantially mitigated by legislation, notwithstanding that its original ratio has long ceased to be regarded as tenable." This view of the basis of the employer's immunity in the case mentioned is to be found in all the judgments delivered in that case. Sec. 46 prohibits the insertion in the agreement of any stipulation to which both master and seaman do not agree. The section says that the agreement between the master and the seaman shall be framed so as to admit of stipulations (not contrary to law), which are approved by the superintendent, being introduced at the joint will of the master and seaman. Does the section permit the importation by implication into the agreement of a stipulation to which it may be presumed that the seaman would not agree if it were proposed to be made an express stipulation ?

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In the present case it is not necessary to decide the questions raised by these arguments if the evidence could not support the defence of common employment. In Wilsons and Clyde Coal Co. Ltd. v. English (3), Lord Wright said: "TI think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations. The obligation is threefold, as I have explained. Thus the obligation to provide and maintain proper plant and appliances is a continuing obligation. It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees. It may be difficult in some cases to distinguish on the facts between the employers' failure to provide and maintain and the fellow servants' negligence in the respects indicated." The opinion of Lord Wright was in substance the same as that of the other Lords: See per Lord Atkin (4) and per Lord Maugham (5). The authorities to which Lord Wright refers include Williams v. Birmingham Battery and Metal Co. (6), in which Vaughan Williams LJ. and A. L. Smith LJ. approved of Lord Herschell's statement in Smith v. Baker & Sons (7), which is in these words: "It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk" (8). Another of these authorities is Young v. Hoffmann Manufacturing Co. Ltd. (9), where Kennedy L.J. said: " In the absence of a special contract between employer and employed, it is an implied term of the relation that the master undertakes, in the view of the common law, to use reasonable care - . . .; (b) inhaving and keeping his machinery, the use of which might otherwise be dangerous to the servant in his employment, in proper condition and free from defect " (10).

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The trial judge directed the jury substantially in accordance with the principles laid down by Lord Wright. But criticism is made of a test which his Honour gave for distinguishing between defects in machinery in respect of which an employer could not vis-a-vis an employee free himself from responsibility by delegating the care of the machinery to his employees and those matters in respect of which the negligence of an employee might in an action by another employee be met by the defence of common employment. His Honour asked the jury to consider whether the defect in the boiler was major or minor. The question whether this test would afford correct guidance to the jury depends on the explanation which was given of what were major and minor defects. His Honour told the jury that a defect of a substantial nature affecting the plant and its efficiency was a major matter. I understand that what his Honour meant was that the existence of such a defect would be evidence of a breach of the employer's duty to provide and maintain a proper plant. His Honour distinguished a minor defect as one which was incidental to the running of the plant. He gave these examples, " putting oil on appropriate oiling points, turning on a tap, pushing a switch, the tightenmg of a nut, an ordinary running repair." The point of his Honour's direction was that vis-a-vis an employee these matters are not within the area of personal responsibility which the law assigns to the employer. His Honour's view of the contentions of the parties on the question was expressed to the jury in these words : "T do not think it is seriously contended that it is not a substantial matter. If you come to the conclusion, of course, that it was a minor matter, a mere running repair, then of course it would be open to you to so hold, but I do not think that it is very seriously put for- ward." Of course '"' major matter' and "' minor matter" are here to be understood in the light of his Honour's explanation of these terms. It seems to me that upon a fair view of the summing up the question was substantially put to the jury whether or not reasonable care was taken to maintain the boiler as part of the ship's plant. That is clearly a matter within the employer's field of duty and by their verdict the jury must be presumed to have determined that question against the appellant.

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the respondent collided with a fellow workman and fell on the stoke- hold floor, which was flooded with this hot water. The trial judge dealt with the question in the course of his summing up. He used these words: " It was said that what happened before the opening of the door of the furnace was merely introductory history, and that the real cause of the accident being the opening of the door of the furnace with all that boiling water behind it, and that the door having been opened by the second engineer, who was a fellow servant of the employer of the plaintiff, that that was the real negligence, if there was any negligence, and being the negligence of a fellow servant the plaintiff cannot recover. That is the contention that is put to you, but I am bound to tell you that in law that is not the position. If you are satisfied that that boiler was not being maintained in a proper and safe condition, applying the tests I have already given to you, and if as a result of some failure of the employer to use reasonable care in relation to the maintenance of the boiler, hot water flooded out and by a regular chain of cause and effect escaped and as a consequence the plaintiff was burned, then the plaintiff is entitled to recover." The evidence demonstrated, as it seems to me, that the flooding of the furnace was the result of the appellant's failure to maintain the boiler in a proper condition. Tf the action of the officer in opening the door in the emergency was such an act as might reasonably and naturally follow, it is impossible to deny that the injuries sustained by the respondent were the result of the appellant's breach of its duty and the doctrine of common employment would afford no defence. His Honour directed the jury that they could find a chain of cause and effect between the defect in the boiler and the accident to the respondent. The con- siderations based on the evidence which he mentioned to the jury are contained in this passage: " You will remember, gentlemen, that if 25 or 30 tons of boiling water, and water boiling under pressure, which means higher than the ordinary 212 degrees F., escapes from

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trial the declaration contained two counts: (1) that the plaintiff was employed by the defendant to operate and attend to a certain boiler then under the control of the defendant on the defendant's ship yet the defendant by itself its servants and agents so negligently improperly and unskilfully conducted itself in and about the care, control, operation, maintenance, equipment, supervision and manage- ment of the boiler and in and about failing to adopt proper and reasonable precautions to ensure due safety for the plaintiff and in and about the maintenance of a boiler in a defective state and in and about certain operations carried out with respect to a boiler and in and about failing to carry on its operations and work so as not to subject the plaintiff to unnecessary risk that the plaintiff whilst employed in the ship was grievously wounded and injured and suffered great pain of body and mind and incurred expense for nursing and medicine and medical and surgical attendance and was and is unable to attend to his usual occupation and was otherwise greatly damnified. (2) And the plaintiff further sues the defendant for that at all relevant times the plaintiff was employed by the defendant to operate and attend to a certain boiler then under the control of the defendant on the defendant's ship and the said ship was a ship to which the Commonwealth of Australia Navigation Act 1912-1935 applied and it was a term or obligation of the said contract of service that the defendant should use all reasonable means to ensure the seaworthiness of the said ship for the voyage at the time when the voyage began and to keep her in seaworthy condition for the voyage and during the same yet the defendant did not use all reasonable means to ensure the seaworthiness of the ship for the voyage at the time when the same began nor to keep her in seaworthy condition for the voyage and during the same whereby part of a certain boiler in the ship ruptured and the plaintiff suffered the damage in the first count mentioned.

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the No. 7 boiler and the port and starboard bunkers, and boilers Nos. 1, 2 and 3 which were on the after side of this space. The other boilers, Nos. 4, 5 and 6 were behind boilers 1, 2 and 3. No details have been given about the arrangements there, except that it was described as the after stokehold, and behind that again came the engine-room. Those Scotch marine boilers have been described to you in detail. It appears that this type of boiler consists of a metal cylinder of substantial size with three heating units, two being described as wing or upper furnaces, and the other as the lower furnace which is in the centre. Each furnace has a place where the coal itself is consumed with an ashpit underneath. There is a lead through to a combustion chamber at the back, and from there the flame, hot gases, and smoke are led through the smoke tubes back to the front of the boiler again, where they escape into the smoke box and from there away to the ship's funnel. The essential feature of Scotch boilers is that the tubes carry no water, but only the flame and the hot gases, and the water itself is contained in the cylindrical part of the boiler, forming, as it were, a water jacket. This com- pletely surrounds and encloses the three heating units. The water- jacket at the back behind the combustion chamber, contains, as it were, a wall of water enclosed between the back wall of the combus- tion chamber and the back wall of the boiler itself, a space about 14 inches from side to side. The two walls are secured one to another by a number of stays, which are threaded steel rods varying in size from 12 up to 1 inches in diameter. They are threaded for their full length and screwed through holes which are made in each of these two walls, which are themselves threaded. They are further secured by nuts which are screwed on to the outside of the wall of the boiler itself and inside the wall of the combustion chamber so as to prevent any possibility of the metal walls expanding or becoming distorted. Evidence has been given that there are about five hundred of these stays altogether in a boiler, so that, in view of the possibilities of corrosion and other injury, it is a matter of some moment to see that they are maintained in proper order and precau- tions are taken so that any corroded, broken, or defective stays may be removed and replaced . . . It would appear that somewhere about 6 o'clock on the morning of 6th August, the stay on the port margin of the back combustion chamber in the third row from the bottom fractured in such a manner that one short end was left in the hole in the back wall of the combustion chamber. When the fracture actually took place is not known, but at about the time I speak of the pressure in the boiler caused this piece of the stay to be ejected from the hole in which it should have remained threaded

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statutory implication had not been introduced it is probable that, whenever a seaman was injured by a defect in any part of the equip- ment of a ship at sea, the question of the owner's liability to the injured seaman for the negligence of a fellow employee through whose want of care the accident occurred would have had to be determined by the same principles as those laid down in Wilsons and Clyde Coal Co. Ltd. v. English (1). But Searle v. Lindsay (2) does not appear to have established itself as an authoritative case in shipping law. It is not mentioned in such recognized authors as Abbott on Merchant Ships and Seamen, 14th ed. (1901), Carver, Carriage of Goods by Sea, 7th ed. (1925), Maclachlan, Law of Merchant Shipping, 6th ed. (1923), and Temperley's Merchant Shipping Acts, 4th ed. (1932), although it is cited in Halsbury's Laws of England, 2nd ed., vol. 22, p. 192. This is probably because after 1876 the express statutory obligation has been generally regarded as the only protection for seamen injured by a defective ship at sea: (Abbott on Merchant Ships and Seamen, 14th ed. (1901), at p. 219; Temperley's Merchant Shipping Acts, 4th ed. (1932), p. 279). As will appear hereafter, the obligations imposed by sec. 59, which are of a wide character, provide a different standard from that implied at common law in order to determine whether a seaman injured at sea through the negligence of a fellow employee to keep part of the equipment of the ship in order can sue the shipowner as though it had been his own personal negligence. It is clear, I think, applying the maxim expressum facit cessare tacitum, that the obligations implied by statute and at com- mon law were not intended to coexist, so that after the enactment of sec. 59 no further contractual duty of care could be implied at common law against a shipowner in the same field as that occupied by the statutory obligation (Lowe v. Dorling & Son (3); Dickson v. Liza (4); Stephens v. Junior Army and Navy Stores Ltd. (5) ; Bank Line Ltd. v. Arthur Capel & Co. (6) ; Gemmell Power Farming Co. Ltd. v. Nies (7) ).

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breach cannot sue in contract, but only in tort. It is highly probable that it was intended to put a seaman by statute in an analogous position to that of a passenger at common law - See Readhead v. Midland Railway Co. (1), the headnote of which reads as follows : "The contract made by a general carrier of passengers for hire with a passenger, is to take due care (including in that term the use of skill and foresight), to carry the passenger safely; and is not a warranty that the carriage in which he travels shall be in all respects perfect for its purpose; that is to say, free from all defects likely to cause peril although those defects were such that no skill, care, or foresight could have detected their existence," - in which case the whole of the seaman's rights would depend upon the statutory obligation, but it is unnecessary finally to determine the point. A modern ship, and particularly a passenger ship, contains a great deal of equipment that is installed for the purposes of converting the ship into a floating hotel or for purposes of recreation, and it is possible that defects in these parts of the ship might not be considered as defects constituting unseaworthiness, so that the provision and maintenance of this equipment might constitute a field in which the implied common law duties could operate. For instance, defective heating appliances installed to provide hot water for the passengers' baths, the kitchens, and the pantries (See the Navigation Act, sec. 270) or for the seamen (sec. 136 (3) ), might not make the ship unseaworthy, so that a member of the crew, if his remedy was confined to sec. 59, would have no redress although he was injured because the shipowner had failed to exercise due care to see that fit and proper appliances were provided for that purpose. It may be that Searle v. Lindsay (2), and Bellambi Coal Co. Lid. v. Murray (3), Leonard v. Leyland & Co. (4), and Gillies v. Cairns (5), are cases of the kind where, the defective appliances not being of sufficient importance to make the ship unseaworthy, the shipowner could still be under a common law duty to see that reasonable care was exercised to keep them in repair. But when a seaman is injured by defective equipment during a voyage and the defect in the equipment is such as to constitute unseaworthiness, his cause of action must, in my opinion, be based on sec. 59 and not on any contractual duty implied

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Sons Steamship Oo. Ltd. (1)). Sec. 46 of the Navigation Act, so far as material, provides that a master of a ship who engages any seaman in Australia shall enter into an agreement with him in the prescribed form in the presence of the superintendent and that no master shall carry any seaman engaged in Australia to sea without having entered into such agreement. Statutory Rules 1924 No. 199, reg. 6 (1), prescribes the form of agreement. The contract was in this form. The plaintiff contends that the proper law of the contract is the law of New South Wales, that sec. 65 of the Workers' Compen- sation Act does not deal with the liability of the employer to pay statutory compensation but with his liability to pay damage for negligence at common law, so that the section is really a completely separate enactment although embodied for convenience in the Workers' Compensation Act, that the section is intended to affect all contracts the proper law of which is the law of New South Wales, and that, as the present contract was made in New South Wales and provided for the employment to commence and conclude in Sydney, the proper law of the contract is the law of New South Wales. The defendant, on the other hand, has pointed out that the port of registry is Melbourne, that the Merchant Shipping Act 1894, sec. 265, which is in force in Australia, provides that where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws, then, if there is any provision on the subject which is thereby expressly made to extend to that ship, the case shall be governed by that provision ; but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered, and contends that if the contract is governed by the law of a State it is the law of Victoria, where the doctrine of common employment is still in force. But it is unnecessary to express any opinion on these contentions, because I agree with the unanimous view of the Full Supreme Court that sec. 65 only applies to torts committed in New South Wales. And the point, I think, can be determined by a more important consideration. In Union Steam- ship Co. of New Zealand Ltd. vy. The Commonwealth (2) Isaacs J. said : - ' It is obvious from an inspection of sec. 46, and, indeed, of .the group of sections headed 'Div. 8 - The Agreement', that, just as in the Imperial Merchant Shipping Acts, a complete scheme is enacted. For the purpose of obtaining that complete scheme it is required that the articles shall be in the form and to the effect provided directly or indirectly by the Commonwealth Parliament. That is to say, the contractual obligations of the parties shall be

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found complete in the agreement that conforms to Div. 8. Both the Imperial and the Commonwealth statutes are based upon the same fundamental idea." He had already expressed the same opinion in Federated Seamen's Union of Australasia vy. Common- wealth Steamship Owners' Association (1). There would have to be, of course, in the case of articles, just as in the case of any other contract, a proper law of the contract. This would have to be the law of one of the States, either the law of the State in which the port of registry was situated if sec. 265 of the Merchant Shipping Act 1894 applied, or, if it did not, the State of the proper law deter- mined in accordance with the principles of private international law. But, having regard to the comprehensive scope of the Navigation Act, to its express terms, and to the inconvenience and confusion that would arise if seamen serving on inter-State ships were subject or not subject to the doctrine of common employment, or to other incidents added to, or subtracted from, seamen's contracts of employment by the law of the State which was held to be the proper law of the contract, it appears to me that the Commonwealth Parliament, when it enacted Div. 8, evinced a clear intention that as between itself and the States its legislation should thereafter completely, exhaustively and exclusively occupy the legislative field with respect to the rights and liabilities attaching to agreements entered into between masters and seamen of ships subject to the Act, so that any subsequent State legislation which purported to affect the obligations of the contract at common law as they then existed would be inconsistent with the Commonwealth law under sec. 109 of the Constitution and would be to that extent invalid (Ex parte McLean (2); Carter v. Egg & Egg Pulp Marketing Board (Vict.) (8); Washington v. The Commonwealth (4)). It follows, there- fore, that, in my opinion, the contract under which the plaintiff was serving as fireman on the S.S. Zealandia at the time of the accident was subject at common law to an implied condition that he would " take upon himself, as between himself and his master, the natural risks and perils incident to the performance of such services . . . and . . . where the nature of the service is such that as a natural incident to that service, the person undertaking it must be exposed to risk of injury from the negligence of other servants of the same employer, this risk is one of the natural perils which the servant by his contract takes upon himself as between him and his master" (Radcliffe v. Ribble Motor Services Itd. (5) ) ;

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In Wilsons and Clyde Coal Co. Ltd. v. English (2) the House of Lords dealt exhaustively with the principles that govern the extent to which the doctrine is a " defence " where a servant sues a master for damage due to the negligence of another employee of the same master. The House decided that an employer is under a funda- mental duty towards an employee which he cannot delegate, to see that due care is used (1) to provide proper machinery, plant, appliances, and works and to make such periodical overhauls, repairs, and replace- ments as are required to maintain the machinery, plant, appliances, and works in good order and condition, (2) to select properly skilled persons to manage and superintend the business, and (3) to institute a proper system of working. But the House did not decide that, whatever the facts relating to the employment may be, the employer's province, in which he is liable for the negligence of one employee to another employee as if it was his own personal negligence, despite any stipulation to the contrary, must inevitably include all the matters included in the above three departments. It is possible to imagine a case where an employer employed the same staff to con- struct, maintain and work the appliances, in which event the risks incident to the common employment might attach to all three tasks. Where an employer employs one staff to construct the appliances and to maintain them in proper order, and a separate staff to work them, although as between a member of the second staff and the employer, the employer would be personally liable for any damage suffered by the employee from the negligence of a member of the first staff, the members of the first staff would as between themselves be in common employment with respect to the risks incident to their common work. In \W2lson's Case (2) the plaintiff, who was employed to work in a colliery, suffered injury because the owners had not instituted a safe traffic system for men proceeding to and from their work. The planning of this system was not any part of the work in which the plaintiff was engaged in common with any other employees of his master. This is made clear by Lord Macmillan (3). In most cases it is reasonably certain where the boundary lies

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between the employer's province of personal duty to each employee, and the province where the employees are engaged in a common task. But, as the House has pointed out, it will often be difficult to deter- mine where it lies in the case of the subsequent care of plant which has been properly provided in the first instance. This determination must depend upon the facts of each particular case. In so far as it is part of the ordinary routine of the employees engaged in common in working the machinery and plant to maintain that machinery and plant in repair, then, so long as the employer has provided a competent staff to supervise the repairs and a proper system of working, each employee must be taken to have impliedly contracted to take the risk that any of his fellow employees may be negligent in the execution of his part in effecting such repairs. This is what I understand Lord Wright to mean when he says: '' Thus the obliga- tion to provide and maintain proper plant and appliances is a con- tinuing obligation. It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees" (1). There are many cases in which it would be easy to decide that the steps required to maintain a ship in a proper state of repair were outside the pro- vince of the common work which a ship's crew is engaged to do. Work that required a ship to be docked, the use of special land machinery, and the employment of skilled tradesmen on shore would be in this category. But many kinds of repairs could be carried out either by the ship's crew or by outside workmen, in which case it would be a question of fact, which would have to be submitted to the jury, whether the work fell within the province of the personal liability of the owner or within that of the common employment. In Radcliffe v. Ribble Motor Services Ltd. (2) Lord Wright said: " In modern law it is realized that a duty may arise out of a relationship based on contract with a consequent liability for a breach of that duty, which I take to be the legal basis for many cases of liability in negligence and for such liability as now exists between employer and employee " (3). Where an employee sues an employer for such a breach, although the doctrine of common employment is often referred to as a defence and specially pleaded, it can be raised under the general plea of not guilty. Where there is evidence that the plaintiff is engaged in work in common with other employees of

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v. Klein; The Tatjana (1)). In McFadden v. Blue Star Line (2) Channell J., dealing with an absolute warranty of seaworthiness, quoted with approval a passage from Carver on Carriage by Sea which said that in order that a vessel should be seaworthy it " must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it. To that extent the shipowner . . . undertakes absolutely that she is fit, and ignorance is no excuse. If the defect existed, the question to be put is, would a prudent owner have required that it should be made good before sending his ship to sea had he known of it? If he would, the ship was not seaworthy within the meaning of the undertaking" (3). Ships have over and over again been held to be unseaworthy where the defect was not such as to be likely to cause the ship to founder but was such that the ship was not in a condition to carry her cargo with reasonable safety unless and until it had been remedied (Gilroy, Sons & Co. v. Price & Co. (4)). For instance a ship has been held to be unseaworthy where a stove has been placed in such a position that there is danger of fire (Le Diamond (5)); where a valve has been left open (The Carron Park (6) ) ; where there has been a defec- tive valve (McFadden v. Blue Star Line (7)); a defective porthole (Dobell & Co. v. Steamship Rossmore Co. Ltd. (8) ); a defective cock (The Schwan (9)); or defective bunker coal (Fiwmana Societa Di Nawigazione v. Bunge & Co. Ltd. (10) ) - see generally the cases collected in Halsbury's Laws of England, 2nd ed., vol. 30, pp. 464-466. A ship is unseaworthy if she is not properly protected against fire (Virginia Carolina Chemical Co. v. Norfolk and North American Steam Shipping Co. (11) ). So many actions were brought against shipowners for damage caused to goods by this type of unseaworthiness that a special statutory exemption had to be enacted: see the Merchant Shipping Act 1894, sec. 502; Lows Dreyfus & Co. v. Tempus Shipping Co. (12). The warranty implied by sec. 59 in favour of seamen, except that it is not an absolute warranty, must be construed in a similar manner to the common law warranty in favour of shippers (Namby v. Joseph (13)). If, therefore, the defect is sufficient to render the ship unfit for the due

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Judgment (186 paragraphs)

Cited By (1)