A QUESTION OF LIABILITY.

Auckland Star, Volume XXXVI, Issue 7, 9 January 1905, Page 3

A QUESTION OF LIABILITY.

CLAIM AGAINST THE NE\t ZEALAND SHIPPING CO. (From Our Special Correspondent.) LONDON, December 2. A case of interest to shipping men was decided by Mr Justice Kelcewich in the King's Bench Division on Wednesday, when Clark. Williams and Co. ships' carpenters, sued the New Zealand Shipping Company and Gray Dawes and Co., a firm of stevedores, on a claim for indemnity under the Workmen's Compensation Act, 180". It appears that on April 24, 1902, a carpenter named Seagrott, while employed by plaintiffs, on some work on the New Zealand Shipping Co.'s steamer Waimate at Albert Docks, fell down on an open and unprotected hatchway on the 'tween deck?, md was seriously injured. The plaintiffs alleged that the defendants wr-re negligent —first, in allowing this hatchway to remain uncovered and unprotected, and, secondly, in covering the hatchway on the spar deck just above without covering or protecting the hatchway of the 'tween deck, so as to lead persons u?ing the ship to believe that both hatchways were covered. On July 1, 1903, Peagrott obtained a certificate under the Workmen's Compensation Act. whereby the plaintiffs were ordered to pay him a weekly sum of 10/11 from May 8, IPO2, until further order, as compensation for his injuries, and also a further sum for costs. The plaintiffs claimed to be indemnified by the defendants against this liability.

In giving judgment Mr Justice Kekewich said that in his opinion on the evidence there was no possible claim against the New Zea'and Shipping Co. The evidence showed that if there was any duty on either of the defendants that duty lay on Gray, Dawes, and Co., to whom Had been entrusted the loading of the ship. Although an officer of the New Zealand Co. might, if it had been thought fit, have taken some precautions for the- protection of those on beard. the shipping company were not in the occupancy of the ship at the time when the accident occurred, and there was no case against them. As regards the stevedores, it -was necessary to prove that, the danger was one against which it. was usual to provide, otherwise there was no duty to provide against. It was said that it was the duty of these defendants to close net only the upper hatchways, but the lower hatchways; but His Lordship found no evidence of any duty to c!o*e the upper hatchways as regards Seagrott. There might be a duty as regards the shipping company in order to provide against the weather or against thieves; but thrre was no evidence to show that the upper hatchways were closed for the benefit of the workmen on the ship, and certainly there was no evidence to show that if the Tipper; hatchways were closed the lower hatchways ought to be closed, or that there was any duty to close the lower J hatchways. Seagrott. though pressed by counsel to do so. could not say that he inferred from the closing of the upper hatchways that thr , lower ones were closed for the protection of the ship; find there was no duty to close the hatchways for any other purpose. But then it was said that there was a duty to protect the hatchways either by stanchions and chains or by runninsj a rope or chain round the pillars which supported the upper deck; but there was no evidence of any such duty, and it, might produce considerable inconvenience while t7ie loading was going on. There was evidence that this was oeessionally dore where there was a crew sleeping below, or wheTe cattle were on board; but the evidence showed that this was not. a usual precaution, and not being u«ual it was impossible to say that there was any duty to protect the hatchways in this way. That really disposed of the case; but two furth-r points were, argued, upon which His Lordship desired to express his opinion. It was said by counsel for the defendants that, in order to enable Seagrott. to establish his case against Gray, Dawes nnd Co., it must be proved that he was .in invitee—in o f her words, that he was asked or ordered by them to go down hfflow and court the danger, and that roerfly being allowed (o do so was not sufficient. Vpon the evidence His Lordship came to the conclusion that Seagrott was an invitee. Then the question of contributory negligence was raised. There was srrne conflict of evidence a.s to the amount of light down below, but His Lordship took it that the lirht Ws very bad. Seagrott had to feel his way nlong, as he Raid. He knew that hatchway No. 2 was open on the day before, and notwithstanding that, instead of getting a light, he preferred to grope his way in the dark. In these circum stances His Lordship thought that he had brought on the acident by his own negligence; but in the view which he took of the case it was not nece.ssary to decide that point. There would be judgment for both defendants with costs.