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Barras Vs. Aberdeen Steam Trawling and Fishing Co. - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case Number[1933] UKHL 3
Judge
AppellantBarras
RespondentAberdeen Steam Trawling and Fishing Co.
Excerpt:
viscount buckmaster(read by lord russell of killowen).—this is an appeal from the first division of the court of session, recalling an interlocutor of the sheriff which awarded to the appellant the sum of £9, 16s. as the amount of wages claimed by him under section 1 of the merchant shipping (international labour conventions) act, 1925. this act, passed to give effect to certain draft conventions of the international labour conference, provided, section 1 (1), that, "where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement, he shall, notwithstanding anything in section one hundred and fifty-eight of the merchant shipping act, 1894, but subject to the provisions of this section, be entitled,.....
Judgment:

VISCOUNT BUCKMASTER(read by Lord Russell of Killowen).—This is an appeal from the First Division of the Court of Session, recalling an interlocutor of the Sheriff which awarded to the appellant the sum of £9, 16s. as the amount of wages claimed by him under section 1 of the Merchant Shipping (International Labour Conventions) Act, 1925. This Act, passed to give effect to certain draft Conventions of the International Labour Conference, provided, section 1 (1), that, "Where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement, he shall, notwithstanding anything in section one hundred and fifty-eight of the Merchant Shipping Act, 1894, but subject to the provisions of this section, be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of the termination of the service, to receive wages at the rate to which he was entitled at that date." And the appellant claims the benefit of that section in the following circumstances.

He is a marine engineer, and the chief engineer of the steam trawler "Strathclova," the property of the respondents. His engagement was in terms of an agreement, under which he was engaged from 4th July 1930 to 30th December 1930, subject to a provision that the agreement might be terminated at any time before that date at the discretion of the owner. It is common ground that it was not so terminated. On 25th September, while the "Strathclova" was returning to Aberdeen, a collision occurred between her and another steam trawler, which, although a fairly severe one, did not prevent the "Strathclova" from returning to the port of Aberdeen under her own steam on 25th September. The crew, including the appellant, were paid off on 26th September, and told that the ship would be laid up until the repairs were completed. The repairs were not completed until 10th October, and on the 11th the appellant resumed his duties. The amount claimed is the amount of wages for the fourteen days during which the "Strathclova" was under repair, and no question arises as to the amount.

The claim is resisted by the respondents upon the ground that the "Strathclova" was not a wreck within the meaning of the Act of 1925, and that, on no consideration, can the phrase "wreck" or "loss" within the meaning of the Act be made to apply to the facts of the present case.

The question as to the meaning of the word "wreck" in the Merchant Shipping Act of 1894, where, in section 158, it occurs in the same context and to provide for similar conditions to those covered by the later statute, was the subject of judicial consideration in the case of The Olympics. In that case a vessel of the White Star Line, on leaving Southampton for New York, came into collision with H. M. S. "Hawke." She returned to Southampton, and proceeded, under her own steam, to Belfast, where she was fully repaired, and after nine weeks resumed her place in the Atlantic service. The Court of Appeal, from whose judgment Kennedy, L.J., dissented, decided that in these circumstances the vessel was a wreck within the meaning of section 158. Both Vaughan Williams, L. J., and Lord Wrenbury, who was then in the Court of Appeal, decided the question by considering the word "wreck" in relation to the service of' the seamen, and in the words of the last-named judge "the wreck of the ship in this context, I think, is anything happening to the ship which renders her incapable of carrying out the maritime adventure in respect of which the seaman's contract was entered into." The marked contrast between this and the ordinary maritime conception of a wreck is best illustrated in a sentence of Kennedy, L.J., who said:

"In my view ‘wreck’ means such disaster caused by collision with some external object, be it stationary, such as a rock, or moving, as, e.g., another ship or some substance floating in the waves, as destroys her character as a ship, and reduces her practically to the condition which speaking from memory, I think has been judicially described in the case of a wooden ship as ‘a congeries of planks.’"

This case was referred to later in the opinions given in this House in the case of Horlock v. Beal, without any expression of disapproval, although without expressed assent.

The respondents here have based the main part of their case, as explained in the reasons they have given, upon the ground that The Olympic was wrongly decided, and that the limited and relative meaning there attributed to the word "wreck" is not the true interpretation of the phrase. I do not think that the consideration of that question is open to this House. It has long been a well-established principle to be applied in the consideration of Acts of Parliament that, where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it. James, L.J., in the case of Ex parte Campbell expresses this rule in the following terms:

"Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them."

And this opinion was expressed in a case where the learned Lord Justice himself said it was difficult to bring the interpretation within the words of the Act. The same opinion was expressed by Lord Halsbury in delivering the judgment of the Judicial Committee in the case of Webb v. Outrim, and I know of no authority that has in any way weakened the effect of this pronouncement. It is, in my opinion, a salutary rule, and one necessary to confer upon Acts of Parliament that certainty which, although it is often lacking, is always to be desired.

It is indeed argued that in the Act of 1925 this rule need not apply, because it was an Act whose stated purpose was to give effect to a draft international convention scheduled to the statute, which, by article 2, had provided that the indemnity against unemployment to the seamen arose only where such unemployment resulted from "the loss or foundering" of the vessel, and that the words in section 1 must be construed as the equivalent of the phrase in the Convention which the statute was designed to confirm. To my mind the answer to this is clear. At the time of the passing of the later Act rights were enjoyed by the seamen under the Act of 1894, which, according to the judicial interpretation of the statute, conferred upon them wider and more extended rights than those contemplated by the Convention, and I think the conclusion is plain that the Act, while intending to embody the Convention, did not intend to restrict or limit the rights which our seamen already possessed under the earlier statute of 1894. It does not follow that, because the Convention had agreed to something less than that which our seamen enjoyed, therefore we should reduce their rights to the lower level. I am very clearly of opinion that the word "wreck" must be construed in the Act of 1925 as it was construed in the Act of 1894.

There remains the question whether the facts of this case bring it within the principle of The Olympic. In other words, whether the damage has caused such an injury that the ship cannot continue "the maritime adventure in respect of which the seaman's contract was entered into," notwithstanding that, after repair, she could perhaps perform some other adventure. In that case the adventure was a voyage to New York and home, if so desired, by a series of calls at ports in the South Atlantic, and she resumed her place in nine weeks. In this case the fishing trip lasts from five to fourteen days, and the ship generally sailed out after a day and a half in harbour. It was for such an adventure, lasting six months unless terminated, that the appellant was employed, and the point that arises is, Was that adventure frustrated? It is impossible to establish any standard by which such a question can be tested, and this case illustrates the difficulty of deciding on which side of the line the facts cause the case to fall. Upon the whole, I cannot find sufficient grounds for saying that the opinion of the majority of the Court of Session was wrong, but I think Lord Morison was in error when he thought that the defenders had terminated the contract in exercise of their rights in this respect under the contract. It was not so terminated. Had it been, this question would not have arisen. For these reasons I think this appeal should be dismissed.

LORD BLANESBURGH(read by Lord Macmillan).—This cause, the details of which are before the House, was instituted in the Sheriff Court of Aberdeen really for the purpose of having the question settled by the order of your Lordships whether or not The Olympic was rightly decided by the majority judgment of the Court of Appeal. The parties, having reached this House, find themselves confronted with the objection that that question is no longer open to discussion in any Court. The decision in the case of The Olympic, it is suggested, must be taken to have received the approval of the Legislature in the Merchant Shipping Act, 1925. Upon that suggestion, while fully conscious of the difficulty created by competing considerations, I have reached the conclusion that the correctness or otherwise of The Olympicdecision still remains a matter fully open to discussion in this House, and I am persuaded that it was wrong. And I proceed at once to examine it, reserving, in the interest of convenient arrangement, until I have completed that task the statement of my reasons for holding that the question whether it was right or wrong is still at large here.

The "Olympic," one of the greater ocean going liners of her day, sailed from Southampton on her voyage to New York in the forenoon of 20th September 1911. Shortly after leaving port she came into collision off Cowes with H. M. S. "Hawke," and sustained damage to her hull at a point on her starboard side 30 feet from her stern. After the collision she dropped anchor in Cowes Roads, where she remained during the night, returning to Southampton next day under her own steam. Her damage was local, but so far serious that she could not set out again on an Atlantic voyage without some permanent repairs. After receiving temporary repairs at Southampton she proceeded, again under her own steam, to Belfast, where she remained while the permanent repairs were being executed. On 29th November, some nine weeks after the collision, she resumed her place on her owners' Atlantic service. That is the whole story of the disaster, set forth here in detail that it may be compared with the account of the stranding of the "Elizabeth," to be given presently. The plaintiffs in the action were a fireman and seaman of the "Olympic" serving at the time of the collision under articles for what, in substance, was a voyage from Southampton to New York and back. On the vessel's premature return to Southampton on 22nd September they were discharged, with the rest of the crew, and were paid their wages to that date, but no more, the owners contending that the payment of these wages was the measure of their liability under section 158 of the Merchant Shipping Act, 1894, which in their view applied to the case. The plaintiffs, the seamen, on the other hand, contending that section 158 had nothing to do with them, as there had, in their view, been no wreck of the "Olympic" within the meaning of that section, claimed compensation under section 162 of the Act for their wrongful discharge. That in the action was the issue between the parties—the seamen on the one side, the owners on the other. Did section 158 apply to the case, as the owners contended, or did it not? If it did, the defendants were right. If it did not, the plaintiffs, under section 162, were entitled to recover a sum which, as to amount, was agreed.

Before the case finished a now well-known divergence of judicial view disclosed itself. But there were some fundamentals with reference to which there was never any question. It is convenient to recall these now.

The issue turned upon the introductory words of section 158, "Where the service of a seaman terminates before the date contemplated by the agreement by reason of the wreck or loss of the ship," and it was never in judicial debate that the section was operative only in a case to which these words applied. Again, with reference to the words themselves, it was not in debate that the position of a seaman as regarded the termination of his service must be ascertained according to the law as at the passing of the Merchant Shipping Act, 1854, in which, as section 185, the enactment first appeared. The Legislature, said Kennedy, L.J., "is referring to two events—wreck and loss—which it regarded as being, at the time of the passing of the Act, recognised causes of termination, namely, the termination by ‘wreck’ and the termination by ‘loss.’" Nor, again, was it in contest that in 1854, and, perhaps, for generations before, a wreck of a ship resulting in her total loss did bring about the termination of a seaman's agreement. "A total loss by wreck happens. This operates a total loss of wages"—The Elizabeth.

But clearly there had been no such total loss by wreck in the case of the "Olympic." "Would anyone,", Kennedy, L.J., asks, "sailor or layman, say that the ‘Olympic,’ as she lay at anchor in the Solent after the collision, or when afterwards she was navigating the waters of the Solent under steam on her way back to Southampton, was a ‘wrecked’ ship, or describe the disaster as the ‘wreck’ of the ‘Olympic’?" The problem to be solved, therefore, was whether, in 1854, anything short of a total loss by wreck—whether, in particular, such a disaster as had happened to the "Olympic"—would have been recognised as a "wreck of the ship" which brought about a termination of her seamen's agreements.

Here, again, on this question it was agreed that direct authority was confined to one decision. "The one authority," said Buckley, L.J., "which deals with the meaning of ‘wreck’ in the sense of casualty to the vessel is The Elizabeth," already cited, a decision of Lord Stowell's, and accepted on all sides as of unimpeachable authority. Indeed, the final difference of opinions among the learned judges is so directly traceable to their divergent views as to what Lord Stowell actually decided in that case that I asked learned counsel for the appellant in the course of his argument whether the correctness or otherwise of the Olympicsdecision might not definitely be ascertained by the test whether the view of The Elizabeth taken by Buckley, L.J., or that taken by Kennedy, L.J., was correct. I understood him to agree that it might. But whether so or not, I believe it to be a sure test, as I hope now to show.

What The Elizabeth actually decided is a matter so completely in difference between Buckley, L.J., and Kennedy, L.J., that I have thought it desirable to examine the report of the case critically. That examination, while it has disclosed the existence of expressions open perhaps to some ambiguity, makes to my mind the whole judgment, on the presently essential question, so clear as to excite surprise that it should ever have been understood in more than one sense.

The "Elizabeth," a brig, sailed from London in June 1818 on a voyage to St Petersburg and back to Portsmouth. She arrived in due course at St Petersburg, and, having loaded a cargo of hemp and deals, she sailed thence on her return voyage to England on 25th September. On 27th September, "without the default of any person," she ran on to a reef of rocks near the Island of Gothland. With local assistance and the help of the crew her cargo was unloaded and the brig got off the rocks, and she was brought to Ostergam, where she was laid on shore for the purpose of being examined, her situation being thus summed up by Lord Stowell in his judgment:

"Here was a ship that had encountered what the law might call a semi-naufragium—full of water, as they themselves" (that is, the seamen) "state, so that they could, not live on board. She is put into the hands of foreign carpenters for the course (a protracted course) of necessary repairs. It was doubtful whether she could at all receive such repairs as would restore her to a navigable state. It was by no means doubtful that she could not receive such repairs as would enable her to proceed till after the approach of spring in that climate had restored the seas to a navigable state so as to allow her a passage." She was ultimately found to be repairable, and in April 1819 she arrived in England under the care of a Swedish crew picked up in Gothland. In Gothland, on 21st October 1818, that is nearly four weeks after the stranding, the crew had been discharged by the master. He justified his action on the ground that the "Elizabeth" could not be repaired before the Baltic was blocked with ice, and that their discharge was necessary to avoid the expense of maintaining them in idleness for the whole winter. Their wages up to that date were tendered to them, and they went, or were sent, to Elsinore, and there they embarked for England, where they arrived in January 1819. The suit was by Brokershaw, one of the seamen, but it clearly was in effect a test action. The plaintiff claimed his wages under his agreement up to the date of the "Elizabeth's" actual arrival in England in April 1819, with the expenses of his journey home. That the owners were liable for the expenses was not contested, and this matter need not be further referred to. The main, indeed the only pleaded, defence of the owners was that the men had accepted their discharge at the time it was made, and on the terms offered—namely their wages to date. On this issue Lord Stowell found against the owners; there had been no acceptance by the men. And he then proceeded to deal with a further question which had not been pleaded, but which in a Court of Admiralty he felt it to be his duty to entertain and decide. Speaking of the "Elizabeth" and of the discharge of the seamen by the master, he says:

"If … the master had a right to dismiss the mariners upon proper conditions, and with a due responsibility for the performance of such conditions, the want of consent on the part of mariners would not invalidate his act of authority if he possessed it. The only real question in this case is, did he possess such an authority?"

The form of this question is a little ambiguous and has, I suspect, been a source of misunderstanding. What Lord Stowell meant by it, however, appears from his answer, which was that, in the circumstances, the termination of the services of the men by the act of the master was in a business sense reasonable as touching the interests of both sides under the agreement, but that the discharge could only be justified as against the men if it carried with it an obligation on the part of the owners to pay proper compensation to them for their loss of wages sustained through the refusal of the owners any longer to be bound by the obligations of the agreements. In Lord Stowell's view the owners' submission that the plaintiff was only entitled to wages up to the moment of discharge by the master was as entirely inadequate as was the plaintiff seaman's counter contention extravagant that he was entitled, to wages up to the actual date of the "Elizabeth's" arrival in England with another crew months after the only voyage ever in contemplation would have ended. The proper compensation to be paid to the plaintiff was that, with a free passage to England, he should receive the equivalent of his wages up to the date of his own arrival in January 1819, and Lord Stowell explained how that measure of compensation would secure for the plaintiff all that he would have received under his agreement, had it been carried out as contemplated by both parties at the time it was entered into.

In order to enable a judgment to be formed upon the divergent views as to Lord Stowell's actual decision, it may be well to ascertain from his judgment its ratio decidendi. It may, I think, be put thus: Where a seaman has been wrongly discharged, sans cause valable,upon idle or false pretences, he has in most countries a right to his wages up to the time of the return of the vessel to her original port. But to Lord Stowell it did not seem that that result could be extended to a case where the discharge was occasioned by misfortune approaching to almost a necessity. "I confess, it appears to me," he said, "that the circumstances in which this vessel was placed did vest in [the master] an authority to discharge his crew upon proper conditions."

The "authority" with which, as I understand it, Lord Stowell treated the master as being vested was not only one conferred by the owners, but was an authority derived from the proper implications of the agreements themselves, for, as he says, it seemed hardly just, where the disaster had arisen from a vis major, an act of God, in contemplation of neither party at the date of their agreement, that the whole of the inconveniences should fall upon one party whilst a new and unexpected benefit for the other was to arise from this common calamity—the benefit of living in ease and safety on shore at his owner's expense. "This," said Lord Stowell, "can hardly be the true rule applicable to such a case, under all possible circumstances that the seaman can insist upon staying with the ship, be the prospect of its return ever so distant, and the most just terms offered for a return to this country." "I know and feel," he added, "the partiality which the maritime law entertains for this class of men, but it must not override all consideration of justice to other classes, particularly to merchants their employers; for what is. oppressive to the merchant cannot but be injurious to the mariner."

Had Lord Stowell been sitting in a Court of equity he might perhaps have described the result in this way: The plaintiff had shown no case for specific relief, but he had shown a right to compensation for the actual loss sustained by him through the owners' determination of his agreement without legal justification. This is the keynote of the judgment. It was never suggested, even by the owners, that the plaintiff's agreement had terminated by reason of the disaster to the "Elizabeth." It had been determined by the master discharging him four weeks later. The owners always acknowledged liability for his wages up to the date of that discharge. It was because the discharge by the master, while, in Lord Stowell's opinion, impliedly justified in the circumstances, was only sub modo so justified that the plaintiff was held entitled to the compensation awarded him.

The substance and effect of the judgment are thus explained with, as I believe, perfect accuracy by Kennedy, L.J., in The Olympic:

"… while [Lord Stowell] held that it was … in the interests of the shipowners ‘reasonable’ for the master to discharge the crew, the contract with the seamen was not dissolved—did not (to use the language of section 158) ‘terminate,’ upon the happening of the disaster to the ship; and that if their services were terminated by the master's act, the owner thereupon became liable to pay compensation to the seaman for loss of the wages which he could have earned on the voyage for which he had contracted to serve. That is, in principle, exactly what the plaintiffs claim to be their right in the present case; it is the right which the law has recognised in section 162"

[where there is a limitation] "that the seaman's compensation shall not exceed one month's wages. Lord Stowell, not being fettered by any such statutory limitation, awarded the plaintiffs in the case of The Elizabeth wages up to the time of their being landed in their own country, and this was in effect, though not in intention, giving them wages for the whole of the period which the homeward voyage of the ‘Elizabeth’ would have lasted, if she had not been damaged … The damage to the ‘Elizabeth,’ be it observed, was incomparably greater than that suffered by the ‘Olympic’ in the present case … It was indeed very doubtful, in the case of the ‘Elizabeth,’ whether the vessel could ever be repaired … and yet in his judgment Lord Stowell would not describe even the case of the ‘Elizabeth’ as ‘naufragium,’ ‘wreck,’ but as ‘semi-naufragium,’ ‘a halfwreck,’ and, as I have said, would not hold that the services of the seamen serving on her ‘terminated’ by the disaster, but held them to be terminable by the owner subject to the right—in Lord Stowell's time not a statutory but an equitable right—to be compensated for the loss by being paid wages as and (sic) for the period which I have stated from the report."

It is convenient at this point to compare the disaster to the "Olympic" with that to the "Elizabeth." There must, I think, be complete agreement with Kennedy, L.J., that the mishap to the "Elizabeth" was incomparably the greater of the two. Further, in the case of the "Elizabeth," "the wreck of the adventure," so much in the "Olympic" case insisted on by Buckley, L.J., was overwhelming. Its completeness in contrast with the similar "wreck" in the case of the "Olympic" is as remarkable as is the fact that quite clearly in Lord Stowell's view it had no effect whatever upon the situation one way or the other. He never even refers to it.

Now, if Lord Stowell, on the facts stated by himself, had held that the semi-naufragium to the "Elizabeth" worked a termination of her seamen's agreements, experience in this present case shows that it would have remained a: serious question whether any justification for a similar finding in the case of the "Olympic" was thereby disclosed. I do not, however, propose to discuss the decision from that point of view, because it is not too much to say that, if Kennedy, L.J.'s, interpretation of the Elizabeth judgment be correct, the final decision in The Olympic by a Court which recognised the authority of The Elizabethwas impossible. How, then, was it reached? This brings us to the view taken of Lord Stowell's decision by Buckley, L.J., whose judgment alone deals in detail with it. The Lord Justice says:

"The result of Sir William Scott's judgment in [The Elizabeth], so far as it bears upon the question here to be decided, is, I think, that, inasmuch as the vessel had encountered what he called a semi-naufragium (which, as a matter of fact, meant that she was full of water and required necessary repairs to restore her to a navigable state), the seaman's contract bad terminated. The judgment goes on to decide what it was that under those circumstances the seaman was entitled to receive—this was held to be gratuitous conveyance home … and payment of his wages until he arrived home. The decision is that the misfortune had arisen from vis major, the act of God, which neither party had in contemplation at the time of the contract, and that the circumstances vested in the master an authority to discharge the crew under proper conditions"

(as above stated). "The consequences of termination are now supplied by section 158 of the Act of 1894 …"

I have set forth—at, I fear, excessive length—from the report itself both the facts in relation to the "Elizabeth" and Lord Stowell's judgment upon them, in order that, within the four corners of this judgment, it may be made apparent that, in attributing to Lord Stowell a decision that the agreements of the "Elizabeth's" seamen had terminated as a result of her semi-naufragium, the Lord Justice paid no heed to any of the following reasons to the contrary:—(1) That, as already stated, it was never suggested, even by the owners, that the agreements of the seamen terminated in consequence of the disaster to the "Elizabeth," or otherwise than as a result of the seamen's discharge from service by the master four weeks later. (2) That, if Lord Stowell had held the agreements to be terminated as a result of the disaster, he could not have awarded any compensation after its date. The semi-naufragium would have operated, in his own words, "as a total loss of wages." (3) That the compensation awarded to the plaintiff could not have been Lord Stowell's substitute for that now provided by section 158 of the Act of 1894. The forerunner of section 158 was passed in order to remedy the injustice under the common law in Lord Stowell's day, that, if his vessel was wrecked or lost in the course of a voyage, the seaman had no right to any wages at all. (4) That, very clearly, the whole judgment turned on the propriety and effect of the master's discharge of the seamen four weeks after the semi-naufragium. If that disaster had been regarded by Lord Stowell as one terminating their agreements, there was nothing left for the master's discharge to operate upon. (5) That, so soon as it is shown from his judgment that this discharge was in Lord Stowell's mind the critical thing, it follows that the compensation he awarded is now represented by the limited statutory provision made by section 162 of the Act, a section which becomes operative in a case where the conditions of section 158 have not been fulfilled.

In the result it is, I suggest, established that the Lord Justice's statement of the position just set forth cannot stand in the presence of the explanation of Lord Stowell's judgment given by Kennedy, L.J.

But this view of The Elizabeth—which, I suggest, is not to be supported—was the foundation upon which the whole of the majority judgment in The Olympic was erected. (1) It enabled Buckley, L.J., to treat a semi-naufragium as a proper foundation for the application of section 158. It enabled him to disregard Dr Lushington's judgment in The Florence, where he said, "In shipwreck the contract continues so long as a plank can be saved," and it enabled him to make a statement for which, apart from his own view of The Elizabeth, there is, so far as I have been able to find, no authority anywhere. "The question is not," he says, "whether the vessel had been so injured and damaged that she ceased to be a ship of any service to the owners, but a smaller question, namely, whether she had been so injured and damaged that she ceased to be a ship of service for the purposes of the adventure, the subject of the seaman's contract." But (2), the most important of all, it opened the way for the Lord Justice to treat the disaster to the ship as being little more than an accident in relation to what was the essential thing, "the wreck of the adventure," a consequence to which, as I have shown, Lord Stowell attached no relevance at all.

Accordingly, I reach the clear conclusion that the decision in the case of The Olympic was fundamentally wrong; that the opposing view of Kennedy, L.J., was right; and that, if a case in which the true meaning to be attached to the words "wreck of the ship" in section 158 had before 1925 come before this House, the Olympic decision upon that question must have been overruled. And here is the beginning of the second question raised by this appeal. Is there anything in the Act of 1925 which precludes that question under section 158 of the Act of 1894 being raised as freely now as it could have been before the later Act was passed?

Before proceeding to deal with that question I would draw the attention of the House to an observation of the learned Sheriff-substitute which at more points than one is not without its relevance in relation to it. With the traditional judicial leaning in favour of the seaman, the learned judge expresses his preference for the Olympicdecision on the ground that the construction which was thereby placed upon the word "wreck" gives to it a far more extensive and beneficial operation, so far as seamen are concerned, than does a construction which would treat "wreck" as merely a special variety of "loss." I do not know whether the learned Sheriff-substitute in saying this had it in mind that it was on the narrow and not on the extended construction of "wreck" that section 158, in a statute containing also section 162, became a seaman's section. Up to the passing of the Act of 1925, it was invariably the owners, and never the seamen, who pressed for the extended construction. It was for the narrower view that the seamen fought in the Olympic case, and the seaman's wife in Horlock v. Beal presently to be discussed. That it was to the interest of seamen so to do is shown both by the result in The Elizabeth before the Act of 1854 and by their claim in The Olympic after it. It was the Act of 1925 which effected, as an entirely unforeseen by-product I suspect, the bouleversement now apparently complete when each side is found repudiating the claims formerly made on its behalf, and embracing those always previously resisted.

With all this in mind, I proceed to a consideration of the second question, and I apprehend that, before it can be ascertained whether, as a result of the Act of 1925, the decision in The Olympic has been given legislative force, it is necessary to discover what was the precise effect of that decision as pronounced, how far in that sense it had been recognised and acted upon, how far its authority was at any time undoubted, and whether that authority, such as it bad been, remained intact at the date of the passing of the Act of 1925.

By the extended meaning it attached to the work "wreck" the effect of the Olympic decision was to eliminate from the essential connotation of the term any physical destruction of the ship. Where there had been no "loss" it was, of course, on construction essential, if the section was to apply at all, that "a wreck of the ship" terminating the seaman's agreements had in some sense occurred. And it had occurred, in the view of Vaughan Williams, L.J., if the vessel by reason of her injuries were made "unseaworthy for so long a time as to make the continuance of the voyage useless as a commercial venture"; it had occurred in the view of Buckley, L.J., if she had "ceased to be a ship of service for the purposes of the adventure." Buckley, L.J., could not decide whether any injury, other than injury to the hull, would suffice. It was not necessary to do so in that case. But the trifling sufficiency of the injury he had in view to constitute a "wreck" is shown by the illustration which, with a great liner in his mind, he gave:

"If, for instance, the injury be such as could be repaired within, say, twenty-four hours, it does not follow that the ship cannot perform the contemplated adventure."

Vaughan Williams, L.J., by making unseaworthiness the test, introduced no such reservations, and it must be presumed, I take it, that in his view any engine trouble, any broken propeller or broken engine shaft, provided only the time required for repair was sufficiently prolonged, must have been a "wreck" within the meaning of the section, entitling the owners of the ship to treat the seamen's agreements as terminated. Now, when the traditional principle is recalled—conceived, be it remembered, for the safety of ships—that a seaman's contract is not lightly dissolved either on his side or on that of the owner, it will, I think, be agreed that these are extreme views. They were, of course, vigorously dissented from at the time by Kennedy, L.J. Did they survive up to 1925? I suggest to your Lordships that in their extreme form they had no existence after Horlock v. Beal .

In that case a British ship in the course of a voyage for which a British seaman had signed articles was in the port of Hamburg when war was declared against Germany on 4th August 1914. She was detained by the German authorities; some months later the crew were imprisoned in Ruhleben. In 1916 the ship was still being detained. The action was by the wife of one of the seamen against the owners on an allotment note for his wages. The first question to be decided was whether there had been a "loss of the ship" within the meaning of section 158. There was no evidence that any physical harm had befallen her, but it was suggested in the Court of Appeal by Phillimore, L.J.,that, in considering the meaning of the word "loss," similar considerations touching the adventure might be imported as had in The Olympic been applied in the case of "wreck." And an argument to that effect was addressed to this House. It failed; the "loss" referred to in the section was physical loss only. Although The Olympicwas not directly in point, the decision was referred to by Lord Loreburn, by Lord Wrenbury, and by Lord Atkinson. Lord Loreburn says:

"We were referred to section 158 of the Merchant Shipping Act. That section tells us what is to be done in regard to wages if there is a wreck or loss of the ship. In my opinion these words refer to physical loss. … If I am right in thinking that both the words used in this section, namely ‘wreck’ and ‘loss,’ refer to the ship herself and to her physical condition, then they have no bearing on this case. I will merely add that the Court of Appeal in The Olympic did not decide anything inconsistent with this view. They merely used the frustration of the voyage as a test by which to determine whether or not the physical injury inflicted amounted to ‘wreck.’"

Lord Wrenbury's words are not less significant. He says "I may dispose of the question upon section 158 in few words. It was decided in The Olympic that there is a ‘wreck of the ship’ within the section where the vessel has suffered such physical damage by a casualty in the nature of wreck as that she has ceased to be in a seaworthy condition to continue within a reasonable time the adventure as a commercial adventure. The same, I think, is true of the word ‘loss’ in the section. If there have been such a loss as that the adventure has failed as a commercial adventure, the section, I think, applies. But it remains to determine the meaning of the word ‘loss.’ It is confined, I think, to physical loss. The wreck and the loss referred to in the section I understand to be a physical injury if it be a wreck and a physical loss if it be a loss."

To my mind the result of these two statements is of first importance in the present connexion. First of all I take Lord Loreburn to mean that, in his opinion, in order to satisfy section 158 there must be a physical "wreck" just as there must be a physical "loss." He sees no inconsistency in The Olympic only because "frustration"—he uses, it will be noticed, a strong word—he regards as having been invoked there merely as a test of its completeness, but in no way dispensing with the duty of proving that there bad been, in fact, a physical wreck. His words suggest to me that, had he thought the decision went further, he would have disagreed with it.

From Lord Wrenbury we have an authoritative interpretation by its principal author of the decision itself. He has stated what was meant by it; and it must now be understood, as I take it, that Vaughan Williams, L.J.'s, unseaworthiness test is not to be understood too literally; that the Lord Justice's own reservation that something other than hull damage might constitute a wreck is no longer operative; while there must have been a casualty "in the nature of wreck," an entirely new expression. The "wreck," too, like the "loss," must be physical. It is true that Lord Wrenbury considers that the figurative wreck of the commercial adventure may be a consideration applicable to "loss" as to, "wreck." I can, however, find no suggestion to this effect in Lord Loreburn's statement, and, if "loss" in the section is physical loss, and that only, it is not quite apparent how there can be room for any such reservation. The adventure must surely disappear with the physical loss of the vessel by means of which it was being carried out.

Lord Atkinson also refers to The Olympic.And he accepts the decision as correct. But, unfortunately, his acceptance is based exclusively upon a misapprehension in a most vital particular of Lord Stowell's. decision in The Elizabeth. Speaking of that decision, Lord Atkinson says:

"The plaintiff sued for wages up to the time of the return of the ship to the home port. It was held that he was only entitled to his. wages up to the date of his discharge"

By the master. Now, as has already been seen, the decisive point in Lord Stowell's judgment was, just that the plaintiff was awarded his wages, not up to his discharge,. but up to his arrival in England three months later. And the mistake on Lord Atkinson's part is vital, because, following his reasoning, it seems clear that, if the true facts in that respect had been present to his mind, he must, accepting as he did the authority of The Elizabeth, have disagreed with the majority decision in The Olympicand have adopted that of Kennedy, L.J. Clearly he was of opinion that, in The Elizabeth, the plaintiff's agreement was not held to have been terminated by the semi-naufragium, as Buckley, L.J., had supposed, but by his subsequent discharge by the master.

How, then, in 1925 did the Olympic decision stand? How must the draftsman of the Act of 1925 have regarded it?—its existence, as I assume, being known to him. First of all, on the report of the case itself, he must have been impressed by the force of Kennedy, L.J.'s, dissenting judgment, which, on further inquiry, he would have found had been accepted, even in this House, as authoritative on subjects outside this case. Again, after the observations here in Horlock v. Beal, he must have felt assured that the decision in its original form could no longer be relied on as of permanent authority, nor, indeed, as authentic, except in a sense which no reader of the judgment would attach to it, while, so far as it was reached on any distinction between "wreck" and "loss," it was in the gravest danger of extinction on the first effective occasion. But another circumstance must have struck him. There seems to be no recorded instance of owners having subsequently sought to utilise the Olympic decision in their favour. For all that appears in the reports or text-books it had by 1925 become a dead letter. And, indeed, the liability under section 162, from which, where it was applicable, the decision relieved the ship-owners, must have been in most cases too trifling to worry about. Not without warrant was the draftsman, if he concluded that, in the new Act, he might use the words "wreck or loss of a ship" in confidence that they would have attributed to them no other than the narrow meaning for which the seamen had always contended. The recent recrudescence of the Olympic decision in the Northern fishing fleets, and the changed attitude towards it by each side is doubtless due to the discovery now made that the decision, although originally strongly resisted by them, has placed in the hands of the seamen there a valuable aid in support of claims under the new Act competent to them now for the first time. One must not deny omniscience to a Government draftsman. But it was in Aberdeen, I suspect, that this chance was first seen and taken.

And this brings me to the Act of 1925 itself. In relation to the problem now being discussed, the Act is helpful in a way which I have not found paralleled in any similar case. Its purpose is proclaimed. Not only is it intituled "an Act to give effect to certain draft conventions relating … to an unemployment indemnity for seamen in the case of loss or foundering of their ship," but these words are repeated in the preamble of the Act; the Convention is scheduled to the Act, and in its article 2 it is again the words "loss or foundering" that are used. Then in the preamble it is recited that it is expedient "for the purpose of giving effect to such draft conventions that such provision should be made as is contained in this Act." Its purpose is accordingly insistently expressed. There can be no question as to the intent of this Act, whatever may be the case with most other statutes. As I observed in Ellerman Lines, Limited, v. Murray, the method adopted by the Act to achieve its purpose is not, as it might have been, to transfer the international language of the Convention to the body of the statute, but is to translate that language into the phraseology of the Merchant Shipping Acts and to direct that the Act is to become part of, and be construed as one with, the other Acts of that code.

In section 1 of the Act the translation of the Convention words "loss or foundering" is "wreck or loss," words already found in the same connexion in section 158 of the Act of 1894, and the first question is whether the meaning attributable to the words in each of these sections is to be the same. If I am not debarred from an expression of that view by the case of Ellerman Lines, Limited, v. Murray, in which the House construed the word "wages" in section 1 as a word apart and without reference to its meaning either in section 158 or anywhere else in the Acts, then I say now, as I said then with reference to the word "wages," that the meaning to be attached to the words in section 1 "where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement" is the same as is the meaning to be attributed to the words in section 158:

"Where the service of a seaman terminates before the date contemplated in the agreement by reason of the wreck or loss of the ship."

In the one case too, as in the other, the question whether the service terminated or not is to be ascertained by reference to the law as it stood at the passing of the Merchant Shipping Act, 1854. It seems to me clear that the condition on which each section is to become operative is the same.

But what is that meaning? I ask the question, first of all, with reference to section 158. Let it be supposed that the facts in The Olympic were reproduced in the case of another liner, and a claim made by the seamen under section 162 was brought to this House for final decision, can it be doubted that the use of the words "wreck or loss" in the Act of 1925, where, as it clearly appears, they are a translation of the words "loss or foundering," would be pointed to, and rightly so, as the strongest confirmation on the part of the Legislature itself of the correctness of Kennedy L.J.'s views upon the meaning of the word "wreck" as expressed in The Olympic?

And, if the question is put with reference to section 1 of the Act of 1925, is the answer to be reversed? Is it then to be said that the decision in The Olympic must be treated as now informing the word "wreck," and that, regardless of the fact that the words "wreck or loss" of the section are a translation of the words "loss or foundering" of the Convention and are found in an Act passed to give that Convention effect, still the meaning of wreck is not necessarily more than a temporary unseaworthiness of the ship? And is this answer to be given, although it must be recognised that thereby there is being attached to the word a construction to which seamen had always been opposed?

In Young and Co. v. Leamington Corporation, in relation to just such a question as we are now discussing, I find Lord Blackburn saying this; "I have no doubt in fact that those who prepared the Act of 1875 knew of the differences of opinion that had been expressed, and the difficult questions that might yet have to be decided, and really intended to provide that those difficulties should not arise with respect to the urban authorities they were creating." Is it possible for anyone, in the face of the Convention and the expressed purpose of the Act of 1925 in this matter "to have no doubt" that the Olympic construction, destructive of both, was by the Legislature being permanently attached to the word "wreck"? If the question be permissible, there can, I suggest, be no doubt as to the answer. And the question, I think, is permissible. For, giving to the rule of construction now under discussion its fullest expression, it is in the end a question of legislative intention, and it is not every decision of the Courts that will be regarded as sufficiently authoritative or notorious to suggest any such intention on the part of the Legislature. There is no question as to the existence of the rule. It is in its application that difficulty arises.

One of its best statements is that made by Griffith, C.J., and approved by Lord Halsbury, when delivering the judgment of the Privy Council in Webb v. Outrim . It runs as follows; "When a particular form of legislative enactment, which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which has been so put upon them." That statement is specially valuable because of its insistence on the condition that the interpretation shall be authoritative. It is useful also in that it recalls that the interpretation may result both from judicial decision and from a long course of practice. If the numerous authorities are looked at, it will be found, I think, that the foundation for the application of the rule has been discovered in a long course of practice far more frequently than in a judicial decision, particularly, where that judicial decision is one of a Court short of this House.

I will give a very notable example of this in a case to which I referred during the argument, but was not able then completely to identify. I have done so since. It is the case of the Colonial Bank v. Whinney . The question there was whether shares in an incorporated company were choses in action within the meaning of section 44 of the Bankruptcy Act, 1883. On the corresponding section of the Bankruptcy Act, 1869, it had been held by Bacon, V.-C., in 1871, in Ex parte Union Bank of Manchester, that such shares were not choses in action. That decision bad never been questioned, and in 1883 the earlier section was re-enacted in a form unaltered. There, in the opinion both of Cotton and Lindley, L.JJ., was a case for the application of this rule. "In my opinion," said Cotton, L.J., "Parliament must be taken to have known of that decision, and if they did not intend the same construction to be put upon the expression ‘choses in action’ in this Act as had been put upon it in a precisely similar proviso of the former Act by a decision which had stood unimpeached for so many years, they would have inserted something to show that intention, and would not have framed this proviso in the same terms as that of the former Act." Lindley, L.J., expressed the same view. The case was brought on appeal to this House. As a pupil of Mr Buckley, who was with Sir Horace Davey one of the counsel for the respondent, I listened to the argument. I heard Sir Horace Davey cite the case of Ex parte Union Bank of Manchester (as appears in the report) and claim for it the influence attributed to it by the two Lords Justices. In answer I heard Lord Blackburn say words to the effect that the Legislature was not to be presumed to have before it every decision of every judge of first instance, and he brushed the whole thing aside. Unfortunately the report makes no reference to this incident, but it does show that Ex parte Union Bank of Manchester is not referred to in their judgments by any of their Lordships, and that the House held that "shares" were choses in action under the Act of 1883.

To my mind that case is much stronger than the present. Ex parte Union Bank of Manchester, although the decision of a judge of first instance, was the decision of the Chief Judge in Bankruptcy, sitting in Bankruptcy, pronounced two years after the Act of 1869 was passed. It was a decision which must have been constantly applied in Bankruptcy, and it was never subsequently questioned. Here the decision is a decision of the Court of Appeal, but of two members of the Court only, with a most elaborate dissent from the third Lord Justice dealing with a subject upon which he had special knowledge—a decision, moreover, which had been qualified I suggest, almost out of recognition in this House, and even by Lord Wrenbury himself, and with no evidence that it had ever been utilised at the instance of any ship-owner. When to all that is added the fact that this decision can only be read into this section 1 at the price of a partial defeat of the avowed purpose of the statute, it becomes, I suggest to your Lordships, a case outside the rule altogether, however that rule be stated. I have been unable to find any case at all approaching the circumstances of the present in which the rule has been applied.

I wish to add that, while Ex parte Campbellwill always remain of value for the statement of the rule by James, L.J., it cannot be invoked as an illustration of its application. James, L.J., there found the application for the rule in his belief that, in the Bankruptcy Act of 1861, a section had been brought over from an earlier Act unaltered in its. terms, notwithstanding an intervening objection to it by Lord Westbury in a case Ex parte Alexander. The Lord Justice, however, was mistaken in his dates. Ex parte Alexander, which he had himself argued, was not decided until 1863, and the objection then taken by Lord Westbury was removed in the subsequent Bankruptcy Act of 1869. This fact reduces the statement of the Lord Justice to an obiter dictum. I do not suggest that coming from such a source it is really less valuable on that account. But the case is not otherwise in point.

In my judgment there was in this case no "wreck" of the "Strathclova" within the meaning of section 1 of the Act of 1925 or of section 158 of the Act of 1894. The appellant's claim as pursuer in the cause fails in limine, and for that reason both his action and this appeal should, I think, be dismissed.

LORD WARRINGTON OF CLYFFE.—This is an appeal from an interlocutor, dated 5th February 1932, whereby the First Division of the Court of Session by a majority (Lord Blackburn and Lord Morison, the Lord President dissenting) allowed an appeal from interlocutors of the Sheriff and Sheriff-substitute, dated respectively 17th November and 28th July 1931, allowing the claim of the appellant as pursuer in the action.

The appellant was a seaman on the steam trawler "Strathclova," of which the respondents were the owners, under the terms of a running agreement, dated 4th July 1930, and was by that agreement engaged for a period from 4th July 1930 to 30th December 1930. His claim in the action was founded on section 1, subsection (1), of the Merchant Shipping (International Labour Conventions) Act, 1925, and was for wages as provided by that Act. The section in question is as follows:

"(1) Where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement, he shall, notwithstanding anything in section 158 of the Merchant Shipping Act, 1894, but subject to the provisions of this section, be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of the termination of the service, to receive wages at the rate to which he was entitled at that date."

Subsection (2) contains provisions restricting the right to wages under certain conditions not alleged to be applicable to the present case.

Section 158 of the Merchant Shipping Act, 1894, provides that, "where the service of, a seaman terminates before the date contemplated in the agreement, by reason of the wreck or loss of the ship, or of"—an event not applicable in the present case—"he shall be entitled to wages up to the time of such termination, but not for any longer period." Thus the Act of 1925 gives to the seaman, in the event specified in both Acts, a claim to wages more extensive than that to which be would have been entitled under the Act of 1894, and is in effect an amendment of that Act.

Two questions arise for decision:—(1) Whether on the true construction of the Act of 1925 the event of a wreck or loss of the ship has occurred? (2) Whether, if so, the seaman's service was terminated by reason of such wreck or loss? In considering these questions I need not state the facts in detail, but will give a short summary only.

The seaman's service in this case was to be on board the "Strathclova," a steam trawler to be employed "Fishing Trawl North Sea, Shetland W. Coast and Faroe" from 4th July 1930 until the last day of December 1930, or, if the boat should be at sea on that date, until the first return to the United Kingdom thereafter. But it was agreed that, subject to the above stipulation, the agreement might be terminated at any time before that date at the discretion of the owner. It is common ground that, under such an engagement, the parties contemplated a series of short trips to the fishing ground, each ending in a return to the home port followed in due course by another trip. Before this House counsel agreed that, as a rule, the maximum length of a trip would be fourteen days and the minimum five days, and the normal interval in the home port would be one day and a half. The venture was therefore one of practically continuous fishing for the period of the agreement.

On 25th September 1930 the "Strathclova," when at a distance of one mile to one mile and a half from her home port, the harbour of Aberdeen, came into collision with another steam trawler and was considerably damaged. She was, however, able to make the harbour of Aberdeen under her own steam, was moored near the Fish Quay, and discharged her cargo there on 26th September. She was then dry-docked for the purpose of effecting the repairs rendered necessary by the collision. These were completed on 10th October, and on 11th October the appellant was re-engaged and resumed his employment. The fishing trips were then resumed. In the meantime, on 26th September, the crew, including the appellant, were paid off, being told that the ship would be laid up until the repairs were completed. In the interval the appellant was unemployed.

On these facts the question is: Was the accident to the "Strathclova" a "wreck" within the meaning of the Act of 1925? In my opinion this question should be answered in the affirmative, the point being settled by authority.

In the case of The Olympics it was decided by a majority in the Court of Appeal (Vaughan Williams, L.J., and Buckley, L.J.; Kennedy, L.J., dissenting) that the "wreck or loss" of the ship referred to in section 158 of the Merchant Shipping Act, 1894, includes any accident occasioned by a peril of the sea which renders the ship unfit or unable to proceed on the voyage. It was further decided on the facts of that case that the mercantile venture on which the ship was then engaged was frustrated by reason of the wreck, and the services of the seamen were accordingly terminated. But on this point it may be, and the Court of Session have so decided, that on the facts this case should he decided the other way. This is of course the second question I have put to myself.

To return to the first question, the case of The Olympic clearly decided the point. It is, however, a decision of the Court of Appeal, and would prima facie be open to review in this House. For myself I should not, I think, differ from the view of the Court of Appeal even if I thought myself at liberty to decide the other way, but this is immaterial if it be true that this House is not now at liberty to overrule their decision.

The present case is, in my opinion, covered by the judgment of James, L.J., in Ex parte Campbell, In reCathcart. The question there was whether, under section 216 of the Bankruptcy Act, 1861, a particular interrogatory was covered by the words of the section and was therefore one which the witness was bound to answer. The point had been decided against a witness in a case of Ex parte Vogel, under a previous Act of Parliament containing practically the same words as those afterwards employed in the Act of 1861. The learned Lord Justice said this:

"Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them."

Counsel were unable to refer us to any case in which the view of James, L.J., had been questioned. It is particularly applicable in this case, because in the Act of 1925, which professed to give effect to an International Convention in which the words "loss or foundering" in a similar context were used, the Legislature have used the words "wreck or loss" appearing in the Act of 1894 which had previously received the interpretation in question. For these reasons, therefore, I think the first question must be answered in the affirmative—namely, that the accident to the "Strathclova" was a wreck within the meaning of the statute.

There then arises the second question—namely, was the service of the seaman terminated by reason of the wreck? This question was answered in the affirmative by the majority of the Court in The Olympic, on the ground that the whole mercantile adventure was frustrated by the wreck. Vaughan Williams, L.J., expresses the ground of his conclusion in the following terms:

"Such damage,"

(namely, the damage occasioned by the wreck) "although repairable, would make the ship unseaworthy for so long a time as to make the continuance of the voyage useless as a commercial venture." Buckley, L.J., says:

"The wreck of the ship in this context, I think, is anything happening to the ship which renders her incapable of carrying out the maritime adventure in respect of which the seaman's contract was entered into."

In the present case the mercantile adventure, in respect of which the seaman's contract was entered into, was not merely for a single voyage. It was for a series of fishing trips, each of short duration, extending over several months. The repairs took fourteen days only to complete, and on this being done the ship resumed her fishing trips and continued them until the time fixed by the contract. In these circumstances I agree with Lord Blackburn and Lord Morison that the service of the seaman was not terminated by reason of the wreck, and, accordingly, that the seaman was not entitled to the benefit of the Act of 1925.

The third plea in law originally set up by the respondents—founded on the averment that the seaman's service was terminated in terms of his contract—was withdrawn, and, in my opinion, rightly withdrawn. It is true that the contract contained a provision that it might be terminated at any time at the discretion of the owner. But I think it is plain that, in paying off the men on 26th September 1930, the owner did not purport to act on this provision, for the Sheriff-substitute finds as a fact (No. 8) that the crew were told at the time of paying off that the ship would be laid up until the repairs were completed, and we know that on this being done the fishing trips were renewed.

On the whole I am of opinion that the interlocutor appealed from should be affirmed, and this appeal dismissed with costs.

LORD RUSSELL Of KILLOWEN.—The case of The Olympic decided, in reference to the words "wreck or loss" which occur in section 158 of the Merchant Shipping Act, 1894, that the word "wreck" meant something different from and less than "loss," and that in that section the wreck of the ship meant anything happening to the ship which rendered her incapable of carrying out the maritime adventure in respect of which the seaman's contract had been made.

Some twelve years later, the Olympicdecision having in the meantime governed the construction of the section, the Legislature enacted the Merchant Shipping (International Labour Conventions) Act, 1925. That Act shows by its full title and by its preamble that its object is to give effect to certain draft conventions which had been adopted by the International Labour Conference relating to (among other things) "an unemployment indemnity for seamen in case of loss or foundering of their ship." The draft conventions referred to are set out in the First Schedule to the Act. Sections 1 and 7 of the Act run thus:—Section 1, subsection (1). "Where by reason of the wreck or loss of a ship on which a seaman is employed his service terminates before the date contemplated in the agreement, he shall, notwithstanding anything in section one hundred and fifty-eight of the Merchant Shipping Act, 1894, but subject to the provisions of this section, be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of the termination of the service, to receive wages at the rate to which he was entitled at that date." Subsection (2). "A seaman shall not be entitled to receive wages under this section if the owner shows that the unemployment was not due to the wreck or loss of the ship and shall not be entitled to receive wages under this section in respect of any day if the owner shows that the seaman was able to obtain suitable employment on that day." Subsection (3). "In this section the expression ‘seaman’ includes every person employed or engaged in any capacity on board any ship, but, in case of a ship which is a fishing-boat, does not include any person who is entitled to be remunerated only by a share in the profits or the gross earnings of the working of the boat." Section 7. "This Act may be cited as the Merchant Shipping (International Labour Conventions) Act, 1925, and shall be construed as one with the Merchant Shipping Acts, 1894 to 1923, and those Acts and this Act may be cited together as the Merchant Shipping Acts, 1894 to 1925."

The effect of section 7 has been succinctly stated by one of your Lordships in the Ellerman Lines v. Murray case, where he uses the following language:

"The Act … of 1925 thus becomes a constituent part of a statutory code with special meanings attached to some of its terms by definition and to others by accepted usage or judicial decision. The result of course is that a meaning may necessarily be attributable to its provisions very different from that which would attach to the very same words in an independent enactment."

On looking at section 1, we find that Parliament, in legislating for the purpose of carrying out the draft convention, has used in the first three lines of section 1 words which are for all relevant purposes the same as those in section 158 of the Act of 1894, although the order in which they occur is somewhat altered. The words in section 158, "by reason of the wreck or loss of the ship," become in section 1 "by reason of the wreck or loss of a ship on which a seaman is employed." There is not, in my opinion, any room for doubt that, whatever they mean, the words "wreck or loss" must mean the same in both sections. Nor, in my opinion, can your Lordships in the present case avoid attributing to the Legislature when it used in section 1 of the Act of 1925 the identical words "wreck or loss" which had in 1913 been judicially construed by Court of Appeal, and used them in reference to the same subject-matter, an intention to use the words in the sense in which they had been so judicially construed. The authorities in support of a presumption of such intention are numerous and weighty. Some are referred to in the opinions of your Lordships and I need not repeat them. I may, however, call attention to two others. In Barlow v. Teal Lord Coleridge, C.J., said:

"Where cases have been decided on particular forms of words in Courts, and Acts of Parliament use those forms of words which have received judicial construction, in the absence of anything in the Acts showing that the Legislature did not mean to use the words in the sense attributed to them by the Courts, the presumption is that Parliament did so use them."

In this House Lord Loreburn, in giving his opinion in North British Railway Co. v. Budhill Coal and Sandstone Co ., stated that "When an Act of Parliament uses a word which has received a judicial construction it presumably uses it in the same sense."

Is there anything in the Act of 1925 which would justify us in rebutting this presumption? For myself I find nothing, but I find much to compel us to act upon it. For, be it observed, full effect could have been given to the draft conventions by legislating strictly in the language thereof and adhering to the words "loss or foundering." Instead of following this course the Legislature has, as it appears to me, elected not to do so, but to legislate by reference to a section of an existing Act of Parliament the words of which, by virtue of a judicial construction which had stood unchallenged for years, covered many occurrences other than loss or foundering. In these circumstances I feel bound to hold that the word "wreck" in section 158 of the Act of 1925 bears the meaning attributed to it by the Court of Appeal in the Olympic decision.

There remains the question whether the facts of this case bring it within that decision. Did that which happened to the ship render her incapable of carrying out the maritime adventure in respect of which the seaman's contract was made? Was the ship unseaworthy for so long a time as to frustrate that adventure? In my opinion the answer should be "No." The venture was a contract for a series of practically continuous fishing trips extending over a period of about six months. The ship was laid up for some fourteen days. While the accident to the ship no doubt caused an interruption of and an interference with the maritime adventure, I cannot hold that there was such an interruption or interference as to cause a frustration of that adventure. I agree with the judgments of Lord Blackburn and Lord Morison upon this point.

I think that the interlocutor should be affirmed, and the appeal dismissed.

LORD MACMILLAN.—The Sheriff-substitute in his findings of fact has furnished a full and accurate account of what befell the steam trawler "Strathclova" on 25th September 1930. It is not contested that, by reason of the occurrence so described, the service of the appellant, who was a seaman (in point of fact the chief engineer) employed on the "Strathclova," was terminated before the date contemplated in his agreement with the respondents, the owners of the vessel. The question is whether in the circumstances his service can properly be said to have been terminated by reason of the "wreck" of the "Strathclova," within the meaning of section 1, subsection (1), of the Merchant Shipping (International Labour Conventions) Act, 1925, so as to give the appellant the benefit of that section.

The legislation under consideration is the most recent step in the progressive mitigation of the harsh rule of the common law that freight is the mother of wages, which deprived the seaman of any right to remuneration for his services unless the enterprise of maritime transport in which he was employed was duly completed. By section 157, subsection (1), of the Merchant Shipping Act, 1894, it is roundly declared that "right to wages shall not depend on the earning of freight," and, in section 158, where the seaman's service is prematurely terminated by reason of "the wreck or loss of the ship" he is given a right to his wages up to the time of such termination. Finally, by the section of the Act of 1925 now before your Lordships, the lot of the seaman whose service has suffered untimely termination "by reason of the wreck or loss" of his ship is further alleviated by entitling him to continue to receive his wages for a period of two months after such termination of his service, if he remains so long in fact unemployed.

The question of the circumstances in which a seaman's service could properly be said to have been terminated by reason of the "wreck" of his vessel came before the Courts in the well-known case of The Olympic. It was there held by a majority of the Court of Appeal, affirming the judgment of Bargrave Deane, J., that, if the service of a seaman was terminated in consequence of a physical casualty befalling his ship whereby she was rendered "incapable of carrying out the maritime adventure in respect of which the seaman's contract was entered into" (per Buckley, L.J.), then it could properly be said that the seaman's service had terminated by reason of the "wreck" of his ship within the statutory meaning. The criterion is thus seen to lie in the consequences of the casualty. "The frustration of the voyage," to quote Earl Loreburn, L.C., in Horlock v. Beal, affords "a test by which to determine whether or not the physical injury inflicted amounted to ‘wreck.’"

In my opinion this interpretation has much to commend it. The word "wreck" is obviously a word of the most vague and general connotation. In the language of the literature of adventure, and possibly also for some legal purposes, it may well be that the wreck of a vessel means, as Kennedy, L.J., said in his dissenting judgment in The Olympic, "such disaster caused by collision with some external object, be it stationary, such as a rock, or moving, as, e.g., another ship or some substance floating in the waves, as destroys her character as a ship, and reduces her practically to the condition which, speaking from memory, I think has been judicially described in the case of a wooden ship as a ‘congeries of planks.’" But I do not think that it was intended that the enactment now under consideration should operate only on the occurrence of so dramatic and catastrophic a casualty. Suppose a ship at spring tide runs on a sandbank in some remote part of the world, and remains fast so that she cannot be refloated for a long period or at all, and the crew are consequently discharged. I should hesitate to say that in such a case there had been no wreck of the vessel within the meaning of the Act, although she in fact remained intact. It is well to bear in mind what Buckley, L.J., points out in The Olympic, that for the present purpose we have not "to inquire whether the ship was a wreck, that is to say, whether she had become a certain physical thing, but … whether she had been so injured and damaged that she ceased to be a ship of service for the purposes of the adventure, the subject of the seaman's contract."

On the best consideration I have been able to give to the matter I have come to the conclusion that the view of the majority in The Olympic, which your Lordships are invited to overrule, was well-founded and should be followed. In so holding I am not uninfluenced by the fact that the decision in The Olympic was pronounced twenty years ago and until now has not been called in question. For this long period it has doubtless regulated the practice of shipowners and marine insurers. Indeed, so far from being in any way questioned, the decision in The Olympic was discussed and expounded in this House in the subsequent case of Horlock v. Beal, without any indication of disapproval but rather with every indication that the noble and learned Lords who referred to it accepted its doctrine as sound.

I am accordingly of opinion that, in deciding whether the occurrence which befell the "Strathclova" on the occasion in question brought the appellant's case within the operation of section 1, subsection (1), of the Act of 1925 (which in terms is merely an amending extension of section 158 of the Act of 1894), the interpretation adopted in The Olympic should be applied by your Lordships. I reach this conclusion without the necessity of invoking the rule of construction enunciated by James, L.J., in Ex parte Campbell, upon which some of your Lordships have specially relied, although I am far from desiring to depreciate the value of the aid afforded by that rule in the interpretation of statutes. The principle of the rule is that, where the language of a statute has received judicial interpretation, and Parliament again employs the same language in a subsequent statute dealing with the same subject-matter, there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which meantime has been judicially attributed to it. Parliament, in short, is to be presumed to have given statutory effect to the judicial interpretation so as to render it as binding on the Courts as if it had been expressly enacted in an interpretation section. If this rule were to be treated as a canon of construction of absolute obligation, I can see that it might have very far-reaching and possibly undesirable consequences. I hope I am always ready and willing to obey the voice of Parliament, and I fully recognise that, as Lord Esher once said, "The Legislature has power to make you read English in a way in which you would not read it except by command"—Stevens v. Bishop —the phrase does not occur in the report in the Law Reports. But I must be satisfied that it is the authentic voice and the authentic command of Parliament, and I find it rather a strain to have to believe that the reputed omniscience of Parliament extends to every decision of the Courts. What if the interpretative decision has never been reported? And what if Parliament has repeated language which has been construed in contrary senses by Courts of co-ordinate jurisdiction in England and Scotland? In my view the rule of interpretation which I am discussing affords only a valuable presumption as to the meaning of the language employed in a statute. Where a judicial interpretation is well-settled and well-recognised, the rule ought doubtless to receive effect, but it must, I think, be a question of circumstances whether Parliament is to be presumed to have tacitly given statutory authority, say, to a single judgment of a competent Court, so as to render that judgment, however obviously wrong, unexaminable in this House. After all, there is another rule of statutory interpretation of not less, if not indeed of higher authority, of which Parliament must be equally taken to be aware—namely, Lord Wensleydale's "golden rule" that in construing statutes the grammatical and ordinary sense of the words is to be adhered to, unless it leads to some absurdity, repugnance, or inconsistency. For myself, I prefer the later form in which James, L.J., himself restated his rule in the case of Greaves v. Tofield as follows:

"If an Act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject, and passed with the same purpose, and for the same object, the safe and well-known rule of construction is to assume that the Legislature when using well-known words upon which there have been well-known decisions uses those words in the sense which the decisions have attached to them."

To the rule as so stated I am prepared whole-heartedly to subscribe.

It now only remains to consider whether the particular circumstances of the casualty to the "Strathclova" entitle the appellant to say that his service was terminated by reason of the wreck of his ship, within the meaning attributed to that expression in The Olympic. The appellant was, on 4th July 1930, engaged to serve on board the "Strathclova," "which is to be employed Fishing Trawl North Sea, Shetland, W. Coast and Faroe until the last day of December" 1930. When so employed the vessel was regularly engaged in plying her trade on the fishing grounds, returning to port from time to time to discharge her catch and then putting to sea again after a day or two occupied in unloading, bunkering and other ordinary incidents. In consequence of the casualty of 25th September 1930 the vessel had to be laid off work for a fortnight and placed in dry dock, where repairs costing £265 were effected, the crew, including the appellant, having meantime been paid off. In my opinion the fact that, for this relatively short period of time, the vessel was off work in consequence of the casualty which had befallen her did not render her "incapable of carrying out the maritime adventure in respect of which the seaman's contract was entered into," so as to entitle the appellant to claim that the premature termination of his service was by reason of the wreck of his ship within the statutory meaning.

I am accordingly of opinion that the interlocutor appealed from should be affirmed, and the appeal dismissed with costs.


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