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COURT OF APPEAL MAY 26 1909

Before the Master of the Rolls, Lord Justice Buckley, and Lord Justice Kennedy.

WHELAN V. GREAT NORTHERN FISHING COMPANY

Workman`s Compensation - Fisherman - "Share-hand."

My Notes.

Mr Whelan had gone to the cutter Argyll to board their catch from the Hull trawler Equerry both vessels where owned by the Gt Northern Fishing Co Ltd. When at the cutter Whelan was employed by the cutter master to assist his crew in the stowage of the fish brought by the rest of the fleet to the cutter. Of which all members employed in stowage of the fish would receive the sum of £2 to be shared equally between them, they would then have to further share the sum received between their own trawler crews. Whilst stowing the fish Whelan was injured and claimed compensation for his injuries, but a section of the Workmans Compensation act prevented him doing so.

The act itself states that as he received a share of the profit from the vessel and the act of stowage he was fairly compensated. However several other men had also received the same profit and been uninjured. Also the skipper and crew of his own vessel who had not attended the cutter also received a share of this profit.

 

This was an appeal from the Hull County Court, which raised a question of some importance to those engaged in sea-fishing duties. Section 7 ( 1 ) of the Workmans Compensation act, 1906 which makes that act applicable to seamen and persons engaged in the sea- fishing service, by subsection (2) provides that the Act "shall not apply to such members of the crew of a fishing vessel as are renumerated by shares in the profits or gross earnings of the working of such vessel," and the point raised by this appeal was, whether a share-hand ( a seaman paid by share of profits ) on board a steam trawler, could claim compensation under the Act for an accident which happened to him while employed as a stower on board a steam cutter that took the fish boxes to market.

The applicant. Whelan was a second hand on the steam trawler Equerry and claimed compensation from his employers, the Great Northern Fishing Company Lt, for an injury to his leg received whilst he was stowing fish boxes on the steam cutter Argyll. The employers were the owners of both the steam trawler Equerry and the Steam cutter Argyll, they had a total fleet of 62 steam trawlers, the Equerry been one, and they also had several steam cutters of which the Argyll was one.

The common practise was each morning when the fleet had finished fishing the days catch would be transfered to the allocated cutter which would then take the fish straight to Billingsgate. The first men to arrive at the cutter would be employed to stow the remainder of the fleets boxes as they arrived at the cutter. In this case Whelan and other crewmen from the Equerry were employed by the master of the cutter to assist in the stowage of the fish boxes. The master of the Argyll paid the crewmen of the Equerry and that of another trawlers crew the sum of £2 for their services in stowing the catch of the fleet. This £2 was not directly subtracted from the earnings of the Equerry or the other trawlers, but when the shares payable to the share -hands were made out there would be a deduction for the charges made by the cutter, for the carriage of the fish to Billisgate, inclusive of the cost of stowage of the fish onboard the cutter. ( Hence in theory these men went someway in paying themselves ).

It appeared that under the Board of Trade Regulations, Whelan was not obliged to undertake the task of stowage; nor was the master of the cutter obliged to engage him, but while on the cutter he was under the master`s orders. Whelan was renumerated by a share in the profits of the working of the Equerry. It was contended on behalf of the applicant that as he was renumerated for stowage on the cutter Argyll by a fixed payment, he was not renumerated by a share of profits in respect of his job, and so was outside the the operation of section 7 (2) for that this fish stowage was an employment independant of his employment as a share-hand on the trawler. For the employers it was argued that there was but one contract of employment with the employers, and that the casual employment of stowage was a matter arising out of and incidental to his employment as a share-hand on the trawler. ( Is this not an admission from a trawler owner of a contract with his employee if the stowage is to be casual labour ). The County Court Judge was of opinion that the applicants renumeration was by shares, so that he was, as he described himself, a share-hand and within section 7 (2), and he consequently dismissed the application with costs.

The applicant appealed.

Mr W. H Owen appeared for the appellant and Mr C. A Russell K.C and Mr Neilson for the respondents,the employers. The Court dismissed the appeal.

The Master of the Rolls. _ the respondents are the owners of a fleet of steam trawlers, and the applicant is a share-fisherman on one of these trawlers named the Equerry. The respondents are also the owners of some steam cutters, one of which collects the fish from the fleet each day and conveys it to Billingsagte. Some extra labour is needed to pack the fish in boxes and stow them in the cutter, and the practise is that the skipper of the cutter invites some of the share-fishermen from the first trawlers to arrive at the cutter to assist his own crew in this stowage of the fish boxes. If the share-fisherman accepts this invitation which he is free to accept or refuse, he receives a sovereign which he then distributes between the men onboard his own trawler. His own share been 4s, the applicant whilst engaged to assist the Argyll cutters crew in the act of stowage met with a accident; and the question is whether he can maintain any claim against a rspondent under the Act of 1906.

Now the Act of 1906 for the first time included seamen within the class entitled to compensation - section 7. But there is an exception in subsection ( 2 ) in the following words~ "This Act shall not apply to such members of the crew of a fishing vessel as are renumerated by shares in the profits or the gross earnings of the working of such vessel." If, therefore, the accident had happened onboard the Equerry, it is plain to see that the applicant would have had no remedy. But it is urged that as the accident happened onboard the Argyll at a time when and at a place where, the applicant was working under a verbal contract and not under his articles as a share-fisherman, he is entitled to the benefit conferred by section 7 ( 1 ), and is not affected by section 7 (2). The learned County Court Judge has rejected this contention and upon the whole I think his view is correct.

The position of a share- fisherman is that of a co-adventure, interested in the totality of the venture and not merely in one part of it. The conveying of the fish from the trawler to the cutter is essential to the success of the venture. The right to earn a share in the sovereign was enjoyed by reason of the applicants position as a share-fisherman. This casual employment arose out of and was really part of his employment as a share- fisherman. The sovereign was treated as something in which the master of the Equerry being a share- fisherman, was entitled to participate, although he did not go to the Argyll and assist in stowage. In truth there was only one contract of employment, and this stowing was a matter arising out of and incidental to the engagement as a share-fisherman. The above reasons, which are substantially those of the learned County Court Judge, lead me to the conclusion that section 7 (2) applies, and that the appeal must be dismissed with costs.

The Lord Justices also delivered judegements dismissing the appeal.

 

Fishermen did eventually receive the right to compensation under the workmans compensation act, after receiving an injury regardless of been share- fishermen. But again this was not straight forward as soon as a crewman was released or hospitalised from his vessel his wages ceased, and if he claimed compensation he was inelligable for sickness benefit, he would then have to await the outcome of any compensation claim or return to work..