Ot. o f Ap p.] Le e v . Ow n e r o f Sh i p Be s s i e. [ Ct. o f Ap p.
of discharge. “ Tim e to commence when steamer is ready to unload and w ritte n notice given, whether in berth or not.”
The firs t question arises on those words. There was no berth vacant a t Savona a t which the vessel could be unloaded u n til fo u r days a fte r her arrival, and accordingly she did n o t get a berth u n til the fifth day. There was no other means of unloading her except alongside the wharf when there was a berth vacant. In my opinion the v*ords “ whether in berth or nut ” were inserted to meet this very case. I do n o t th in k i t possible to read them as equivalent to ‘‘ although she be moored alongside a vessel o r c ra ft and n o t in berth. W a n t of space to berth is o f very fre - quent occurrence, and the parties appear to me to have expressly provided fo r it. A n d this dis
poses also of the contention th a t the ship was not ready to unload.” She was ready 30 fa r as she was concerned, and the fa c t th a t she was n o t in a berth is rendered im m aterial by this clause.
The next question arises on these words : “ The cargo to be taken from alongside by consignees at p o rt of discharge, free of expense and risk to steamer, at the average rate o f 500 tons per day, weather p e rm ittin g , Sundays and holidays ex
cepted, provided steamer can deliver i t a t this fate. A t Savona i t is the course o f business, recognised since 1907 by the p o rt authorities, th a t steamers are n o t discharged u n til they are in berth alongside a wharf, and th a t shore labourers w ill only work in connection w ith the discharging
° 1. ve88e^8 when they are in berth alongside the w h a rf; and th a t a ll the work is done by shore labourers, the crew n o t being employed to b ring the cargo to the ra il. In my opinion these facts are irrelevant in considering the question whether
“ the steamer can deliver i t at this rate.” These words refer to the stru ctu ra l capacity and fittin g s of the vessel, not to her position in the harbour as to the supply of labour from the shore avail
able fo r the consignees.
The th ird question is the strike clause : “ In case of strikes, lock outs, c iv il commotions, or any other causes or accidents beyond the control ot the consignees which prevent or delay the dis
charging.” I have no doubt th a t the other causes k 0 restricted to causes ejusdem generis, and th in k i t impossible to say th a t a regulation made by the shore labourers as to the terms on
^’^ c h they w ill work, recognised and sanctioned y the p o rt a u th o rity fo r fo u r years, is ejusdem generis w ith a strike. The course of business at avona was well known to both parties a t the cate of the charter-party, and i f th is possible absence of labour was contemplated as w ith in L8 exception, i t should have been clearly stated.
I th in k th a t the ju d g m e n t of H a m ilto n , J.
should be affirmed. , .
A p p e a l d i s m i s s e d .
S o lic ito rs
C o .
S o lic ito rs
■Hoche.
fo r the appellants, Waterhouse and fo r the respondents, B otterell and
Oct. 26 and Nov. 7, 1911.
(Before Co z e n s- Ha r d y, M . R . , Fl e t c h e r M o u l t o n and Fa r w e l l, L .J J .)
Le e v. Ow n e r o f Sh i p Be s s i e, ( a ) A P P E A L U N D E R T H E W O R K M E N ’S C O M PEN SA TIO N
ACT 1906.
Employer and workman— Death caused by accident
— Compensation— C laim by dependants— In fa n t children— Absence o f evidence o f dependency—
No presumption o f dependency — Workmen’s Compensation Act 1906 (6 Edw. 7, c. 58), s. 1.
The principle established by the decision o f the House of Lords in New Monckton Collieries L im ite d v. Keeling (105 L . T. Rep. 337;
(1911) A. C. 648), that dependency is a question of fa ct, and that there is no legal pre
sumption o f dependency even in the case o f a wife, applies equally to the case o f in fa n t children.
Where, therefore, there was no evidence o f depen
dency in fa c t o f in fa n t children on th e ir father, a workman whose death had been caused by an accident arising out of and in the course o f his employment w ith in the meaning o f sect. 1 o f the Workmen’s Compensation Act 1906, and there was no evidence that the children had ever been maintained by him, they were held not to be dependants and not to be entitled to compensation under that Act.
B rig g s v. M itc h e ll (1911) 48 Sc. L . R. 606) approved.
Decision of the County Court judge reversed.
An a rb itra tio n under the W orkm en’s Compensa
tio n A c t 1906 was requested between the widow of a. deceased workman and his employer as to the lia b ility o f the la tte r to pay compensation under th a t A c t to herself and her two legitim ate in fa n t children as the dependants of the form er in respect of the in ju ry caused to them by his death through an “ accident arising out of and in the course of the em ploym ent” o f the deceased.
I t appeared th a t the widow had been deserted by her husband, and subsequently, on the report o f his death, cohabited w ith another man and had done so fo r eight years. She had several ille g iti
mate children by him.
D u rin g the whole of the eight years she had the custody of her two legitim ate children by her husband (aged ten and eight respectively a t the death of th e ir father), and had maintained them w ith o u t his assistance.
According to the evidence, the husband had n o t m aintained the children a t a ll since the year 1903.
The case came on to be heard a t the County C ourt o f Somersetshire holden at Bridgwater, when i t was decided by the learned C ounty Court judge th a t the widow was not a dependant o f her deceased husband. B u t H is H onour found th a t the tw o in fa n t children were dependants, and accordingly awarded them the sum of 1951.
F rom th a t p a rt o f the decision the employer now appealed.
A le x a n d e r N e ils o n , fo r the appellant, referred to
New M o n ckto n C o llie rie s L im ite d v. K e e lin g , an te,
p. 276 ; 105 L. T. Eep. 337 ; (1911) A. C. 648 ; B rig g s v . M itc h e ll, 4 B u tte r w o r th ’s C. C. 400.
Rayner Goddard fo r the respondents.
Alexander Neilson replied. „ ,
r C u r . a d v . v u l t .
Vo l. X I I . , N . S, (o) Reported by E. A. Scbatoblby Esq , Barrister at-L»”
N
ju .J 3 L rt> ± ± x m c j i - i a . yt u j l o j i i o.
yu
Ct. o f Af p.] Le u v. Ow n e r o f Sh i p Be s s ie. [Ct. o f Ap p.
Nov. 7.—The follo w in g w ritte n judgm ents were d elivered:—
Co z e n s- Ha b d y, M .R .— This is an appeal from an award of 195Z. in favour of two in fa n t children of a deceased workman. The award can only be supported on the ground th a t the children were dependants—i.e., “ w holly or in p a rt dependent upon the earnings o f the workman at the tim e of his death.”
Now, i t has recently been held by the House of Lords in New Monckton Collieries L im ite d v.
Keeling (105 L . T. Rep. 337; (1911) A . 0 . 648) th a t dependency is a question o f fact, and th a t there is no legal presum ption of dependency even in the case o f a wife. I t is my duty lo y a lly to follow th a t decision, and I can see no ground fo r n o t applying i t to the case o f in fa n t children. In the recent case o f Briggs v. M itch e ll (4 B u tte rw o rth ’s 0. C. 400) the C ourt of Session, d iffe rin g from the view of th is court which was overruled by the House of Lords in New Monckton Collieries L im ite d v. Keeling (u b i sup.), held th a t there was no presum ption in the case of in fa n t children. This Scotch decision must, I th in k , b&
regarded as good law.
Now, in the present case there was no evidence of dependency in fact. Since 1903 the in fa n t children have not been in any way maintained by th e ir father. They have resided w ith and been m aintained by th e ir mother, who has been liv in g in adultery w ith a man by whom she has had several ille g itim a te children. A ll th is is beyond dispute. The learned C ounty C o u rt judge gave his decision before the House of Lords had over
ruled the decision o f this court. I am bound to say the decision o f the learned C ounty C ourt judge cannot now be supported.
I t has been argued th a t the case ought to be sent back to the County C ourt judge in order th a t he may consider whether a case can be established on behalf of the in fa n ts of dependency in fact. I th in k i t would be wrong to do this. No evidence was adduced in favour of dependency in fact, and i t was fo r the applicants to establish th e ir case.
In my opinion there is no course open to us but to allow this appeal.
H a vin g regard to the position in life o f the infants and the serious question involved, we appointed the official solicitor to defend the appeal, and by our order we provided fo r his costs.
A n d I desire to add th a t M r. Goddard has greatly assisted the court by his argum ent on behalf of ffie infants.
Fl e t c h e r Mo u l t o n, L .J .—I n th is case the widow of R obert Lee applied on behalf o f herself and his two legitim ate in fa n t children as depen
dants fo r compensation in respect o f his death by an accident arising out o f and in the course of his employment by the respondent, the owner of the ship Bessie. No question arises as to the accident or the employment, the sole question being whether the widow and children were dependants o f the deceased man. The widow had been deserted by her husband, and subsequently, on the report o f his death, lived w ith another man. The learned C ounty C ourt judge found th a t the widow was n o t a dependant, and from th a t decision no appeal is brought. B u t he found th a t the two in fa n t children (who were aged ten and e ight respectively a t the death of
the father) were dependants, and awarded them the sum o f 195Z. accordingly. From th is decision the respondent appeals.
I t is now settled law th a t dependency is wholly a question of fact, and therefore, i f there was any evidence to support the decision of the C ounty C ourt judge th a t the in fa n t children were dependants, we ought not to allow the appeal.
The note by the C ounty C o u rt judge of the evidence is very meagre. There is no dispute as to the ages or the legitim acy of the children. I t w ould seem th a t a t the hearing the widow gave evidence th a t her husband le ft her and lived w ith another woman, and th a t she heard fo u r years afterwards th a t he was dead. She gives no evidence as to his having given her money fo r the support o f the children. The mother of R obert Lee also gave evidence and stated th a t the deceased used to give her money from tim e to tim e, and th a t he made an offer to support his children. She also states th a t on one occasion he gave her money to give to the wife, b u t th a t the w ife refused to take it, saying th a t he ought to send her money regularly him self to support his children, and th a t a fte r he had assaulted her he had le ft her and never paid a n yth in g to support his children. A lth o u g h the widpw does n o t seem to have been asked any question on the subject of th is conversation w ith the mother o f the deceased, I th in k i t must be taken th a t he never actually gave any money to his wife fo r the support of the children. I am unable to fin d fro m the judge’s note at what date the widow le ft the husband, b u t the learned judge expresses him self satisfied th a t her adultery was brought about by her husband’s desertion of her and his reported death. This refers to a report spoken to in the evidence o f the widow, and stated by her to have occurred about fo u r years a fte r her husband’s desertion. I con
clude on the whole th a t th is desertion must have taken place when the younger c h ild was little more than an in fa n t, though th is is m ainly conjecture. The case was argued on the basis th a t, since the desertion by the father, the mother had supported the children by her own labour, or th a t they had been supported by the man w ith whom she was liv in g , b u t I can find no express reference to th is in the judge’s notes.
The law as to what constitutes dependency in the case of a wife has been fu lly la id down by the House of Lords in th e ir decision in the case of New Monckton Colleries L im ite d v. Keeling (ante, p. 276;
105 L . T. Rep. 337; (1911) A. G. 648). There is no presum ption of law th a t a wife is dependent on her husband’s earnings merely because o f his legal obligation to m aintain her. B u t, on the other hand, th is legal obligation is n o t to be ignored in deciding on the fa c t of her dependency.
I n the leading opinion, L o rd A tkinson, a fte r laying down these principles, goes on to say : “ On the contrary, the existence of the obligation, the pro
b a b ility th a t i t w ill be discharged, either volun
ta r ily or under compulsion, the p ro b a b ility th a t the wife w ill ever enforce her rig h t i f the obliga
tio n be n o t discharged vo lu n ta rily, are a ll matters proper to be considered by the a rb itra to r in determ ining the question o f fa c t whether or n o t the wife, a t the tim e o f her husband’s in ju ry , looked to his earnings fo r her maintenance and support in whole or in part. I t is one of the many elements to be taken in to account.” O f the other learned Law Lords who took p a rt in the
M ARITIM E LAW CASES.
91 Ct. of App.] Lee v. Ow s ie of Sh ip Bessie. [Ct. of App. appeal, the L o rd Chancellor fo rm a lly agreed w iththe opinion ot L o rd A tkin so n fro m which I have already quoted. H e adds a few remarks in which again he makes i t clear th a t in his opinion the fa c t th a t a legal d u ty lies upon the workman to provide maintenance is an element to be con
sidered. L o rd Robson was o f the same opinion, as is shown by the follo w in g e x tra c t: “ The wife does n o t necessarily cease to be dependent on the husband sim ply because the la tte r refuses to recognise or perform his obligation and succeeds in throw ing the burden of her maintenance fo r the tim e being on the wife’s parents or friends or on the State. They may fu lfil the husband’s duty fo r him, but the wife’s legal dependence is s till on him and n o t on them, and his death deprives her of the proper ¡stay and support on which alone she is entitled to rely.” He also expresses his approval of several previous decisions in which a wife who was liv in g separate fro m her husband a t the date o f his death and receiving no support from him was yet held to be dependent upon him.
In m y opinion the effect of th is decision is th a t legal obligations to support m ust n o t be taken at th e ir theoretical value, but a t th e ir practical value.
F or instance, the mere fa c t th a t a husband is bound to support his wife does n o t establish th a t she is to ta lly or at a ll dependent upon him w ith in the meaning of the A c t i f the circumstances are such th a t there is no reasonable p ro b a b ility th a t her rig h ts would have been practically and effectually asserted. B u t i f on the evidence there is any fa ir p ro b a b ility th a t the legal rig h ts would at any fu tu re tim e have been actually and effectually asserted by the wife, then there is evidence of dependency, and the compensation must be regulated by an estimate of her practical loss subject to the provisions o f the A ct. T h a t th is is so is made very clear by a passage in the opinion of L o rd Robson. I n the course of his opinion he says: “ The money coming to a widow under the A c t is n o t a present in consideration of her s ta tu s; i t is a payment by a th ird person to compensate her as a dependant fo r her actual pecuniary loss by her husband’s de a th ; and where her husband’s death does not, in the circumstances of the p a rticu la r case, involve any real detrim ent to her pecuniary position, there is no rule of law to prevent the a rb itra to r fro m fin d in g that, though m arried to the deceased, the applicant was now in fa c t dependent upon him .”
I have now to consider in the lig h t of th is decision the position of the children. U p to a certain age, a fa th e r is compellable by law to support his in fa n t children. I t may well be th a t the compulsion is indirect, and can only be effected through the medium of the Poor Law. To my m ind th is is im m aterial. W e have to consider the practical value of the existence of th is legal duty, and, though th is may be modified by the in d ire c t
ness of the machinery by which i t is enforced, i t is n o t taken away. Indeed, in certain respects I th in k th a t the practical value of the obligation to support in fa n t children is more lik e ly to survive th e ir absence fro m the fa th e r than is the practical value o f the obligation to support a wife. The w ife’s absence fro m her husband is often the result of her own choice or of her own conduct, and, where she has done no thing to disentitle her to support from her husband, i t must be more or less by her own choice th a t she does n o t compel him to contribute to her support, since he is
legally bound to do so i f she chooses to enforce her legal rights. B u t no Buch th in g can be said in the case of in fa n t children, at a ll events so long as they are incapable of work and cannot do anything themselves to decide by whom they are to be m aintained or w ith whom they shall live.
One can easily imagine cases in which they ought to be held to be almost wholly dependent on the father, as, fo r instance, when they are being supported by a mother who is herself too i l l to be able much longer to work.
In m y opinion, therefore, the decision of the House of Lords in the case of New Monekton Collieries L im ite d v. Keeling (ubi sup.), although i t does not refer to the case of in fa n t children, lo g ica lly carries w ith i t the result th a t in th e ir case the County C ourt judge is bound to consider the practical value of the father's legal obligations to support them, and th a t, i f he comes to the conclusion th a t there is a reasonable p ro b a b ility th a t th is w ill be enforced in the future, he is e n titled and bound to hold them to be dependants, and to award compensation accordingly.
In applying this law to the facts of the present case I am met w ith two difficulties. I n the firs t place, the extreme meagreness of the notes leaves me in great doubt as to the m aterial which the County C ourt judge had fo r the purposes of his decision. F o r example, the question whether the mother was lik e ly to be able to support her children i f the man w ith whom she was liv in g refused to do so may have been p a rtly answered by the appearance of the woman herself, who gave
In applying this law to the facts of the present case I am met w ith two difficulties. I n the firs t place, the extreme meagreness of the notes leaves me in great doubt as to the m aterial which the County C ourt judge had fo r the purposes of his decision. F o r example, the question whether the mother was lik e ly to be able to support her children i f the man w ith whom she was liv in g refused to do so may have been p a rtly answered by the appearance of the woman herself, who gave