McDermid v Nash Dredging & Reclamation Co Ltd [1986] UKHL 5

House of Lords
Between
McDermidAppellantNash Dredging & Reclamation Co LtdRespondent
Before
Lord Bridge of HarwichDate 16 April 1986
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of 16th April 1986 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this Houses And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in respect of the said Appeal: And it is also further Ordered, That the costs of the Respondent he taxed in accordance with Schedule 2 to the Legal Aid Act 1974.Cler: Parliamentor:75

Judgment: 2.7.87

HOUSE OF LORDS

McDERMID (A.P.) (RESPONDENT)

V.

NASH DREDGING AND RECLAMATION COMPANY LIMITED

(APPELLANT)

Lord Bridge of Harwich Lord Hailsham of St. Marylebone Lord Brandon of Oakbrook Lord Mackay Lord Clashfern of Ackner

LORD BRIDGE OF HARWICH

My Lords,I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hailsham of St. Marylebone and Lord Brandon of Oakbrook. I agree with them both and for the reasons they give I would dismiss the appeal.

LORD HAILSHAM OF ST. MARYLEBONE

My Lords,This was an action for damages for personal injuries by the plaintiff ( appellant ) against his employers, the defendants ( respondents ), as the result of an accident which took place as long ago as 22 June 1975.The fact that on the date of the hearing of this appeal on 5 May 1987 both the question of liability and the quantum of damages were still open after nearly 12 years for discussion does not shed a very favourable light on our system for dealing with litigation of this type.The plaintiff was employed as a deckhand by a contract in- writing dated 18 June 1975 in connection with dredging work on a fjord at Lulea in Sweden.In the first sentence of this contract it was expressly agreed:

- 1 -

"The employee shall safely comply with the lawful directions of the company's representatives. . ."
It must be noted that the defendants' employers were a subsidiary (it is believed wholly-owned) of a Dutch company Stevin Baggeren B.N. ("Stevin").The function of the defendants was to provide and pay the British staff engaged in the operation.At the time of the accident, by direction of the defendants, the plaintiff was working on the deck of a tug (the Ina) owned by Stevin and under the command of her Dutch skipper (Captain Sas) who was an employee of Stevin. The tug was in fact operated turn and turn about by Captain Sas and a British skipper (Captain Clifford) who was an employee of the defendants. At all material times, however, and by direction of the defendants under clause 1 of the contract of service, the Ina and the plaintiff were both under the total operational control of Captain Sas and subject to his orders.The accident may be very simply described. The plaintiff's duty, so far as material, was to tie and untie the Ina from a dredger to which she was made fast fore and aft by means in each case of a nylon rope attached to a bollard on the dredger by an eye and to the tug by a number of figure-of-eight loops and two half-hitches. At the time of the accident the plaintiff was under orders to untie with a view to the Ina going astern. He safely untied the aft rope and stowed it inboard the Ina. He then went foreward to untie the forward rope from the dredger. His correct drill, had he completed it, would have been to slacken the rope on the Ina's starboard bollards in order to reduce the tension, to allow the deckhand on the dredger (whom he could clearly see) to take the eye of the rope off the dredger's port bollard, and then haul the rope in and stow it safely inboard the Ina, proceed to the wheelhouse and give it a double knock with his hand, in order to signal to Captain Sas that it was safe to move. In the event, after he had loosened the forward rope from the Ina's bollard, and before the deckhand on the dredger had had time to remove the eye of the rope from the bollard on the dredger, Captain Sas, who was at the wheel of the Ina, put the engine hard astern. As a result, the rope snaked round the plaintiff's leg, pulled him into the water and caused him injuries which involved the amputation of his leg and damage, recently (28 April 1986) assessed at £178,450.05 by Staughton J., to whom the case had been remitted for this purpose by the Court of Appeal.The plaintiff's claim in the proceedings was based on the allegation (inter alia) of a "non-delegable" duty resting on his employers to take reasonable care to provide a "safe system of work", (cf Wilsons & Clyde Coal Co. Ltd v. English [1938] A.C. 57). The defendants did not, and could not, dispute the existence of such a duty of care, nor that it was "non delegable" in the special sense in which the phrase is used in this connection. This special sense does not involve the proposition that the duty cannot be delegated in the sense that it is incapable of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not properly performed. Equally the defendants could not and did not attempt to dispute

- 2 -

that it would be a central and crucial feature of any safe system on the instant facts that it would prevent so far as possible the occurrence of such an accident as actually happened, viz. injury to the plaintiff as the result of the use of Ina's engine so as to move the Ina before both the ropes were clear of the dredger and stowed safely inboard and the plaintiff was in a position of safety.Since such a system could easily have been designed and put in operation at the time of the accident in about half-a-dozen different ways, and since it is quite obvious that such a system would have prevented the accident had it been in operation, and since the duty to provide it was "non-delegable" in the sense that the defendants cannot escape liability by claiming to have delegated performance of their duty, it is a little difficult to see what possible defence there could ever have been to these proceedings. There was indeed a preposterous suggestion in the defendants' pleading that the plaintiff had caused or contributed to his own misfortune himself. There was never the smallest evidence of this, and, no doubt prudently, the defendants called no evidence, whether by Captain Sas or anyone else, to substantiate it. This frantic attempt to avoid or reduce liability had already died a natural death before the case left the court of trial.Although the duty of providing a safe system of work was "non-delegable" in the special sense I have described, it had in fact been delegated on alternate shifts to Captain Sas and Captain Clifford in the circumstances I have described. In both cases the delegation covered, so far as can be ascertained, the whole operation of the Ina, the orders to the deckhand, the system of work to be followed, and since the skipper was at the wheel, the operation of the engine. Both Captain Sas and Captain Clifford had designed different systems of work either of which, if followed, would probably have prevented the accident in the instant appeal. The trial judge appeared to think that the system designed by Captain Sas and applicable at the time of the accident to the plaintiff was "not unsafe." But this "system" involved at its crucial stage, i.e. the point of time at which it was necessary to ascertain for certain that the both ropes were inboard and the deckhand safe, a double knock by the deckhand on the wheelhouse, which could not be delivered unless the deckhand were clear of danger. If the proper sequence was observed this would not happen until after the second rope was stowed inboard. The Court of Appeal doubted whether the "system," if it can be called such, was adequate, and I share this doubt. But it matters not. The accident happened because the Ina went full astern before the forward rope was clear of the dredger and with the plaintiff in a position of acute peril. There was no double knock because Captain Sas did not attempt to operate the correct sequence and did in fact operate the engines with the eye of the rope still on the bollard of the dredger. The "system" was therefore not being operated and was therefore not being "provided" at all. It matters not whether one says that there was no "system" in operation at all, or whether one says that the system provided was unsafe, or whether one says that the system in fact provided was not in use at the crucial stage. In any event the defendants had delegated' their duty to the plaintiff to Captain Sas, the duty had not been performed, and the defendants must pay for the breach of their "non-delegable" obligation.

- 3 -

Before your Lordships it was strenuously argued that the fact that Captain Sas operated the engine in such dangerous circumstances was the "casual" or "collateral" negligence of an employee of an independent contractor, i.e. Stevin. Since Stevin was itself the holding company of the defendants, the defendants being its wholly-owned subsidiary, I find this morally an unattractive proposition. But the fact was that the Plaintiff had delegated their own "non-delegable" duty to Captain Sas who had charge of the whole operation and his negligence was not "collateral" or "casual" but central to the case and in total disregard of the duty owed to the plaintiff to see that the engine was not put in operation at all until it had been ascertained that it was safe to do so. Whether the system as designed by Captain Sas was adequately safe or not, whether it can truthfully be said that there was in any real sense a system at all, or whether there was a system not unsafe but not being operated, the defendants had delegated their own "non-delegable" duty and it had not been performed.I do not wish to add anything on the second point in the appeal which related to the attempt to limit the Defendants' liability under section 503 of the Merchant Shipping Act 1984 as amended by section 3 of the Merchant Shipping (Liability of Shipowners and Others) Act 1958, except to say that I agree with the judgment of the Court of Appeal [1986] Q.B. at 965, 980-982, and that the result is a necessary consequence of the correct analysis of the facts which I have endeavoured to give above.In the event this appeal must be dismissed with costs. In my view it is, and always was, unarguable.

LORD BRANDON OF OAKBROOK

My Lords,On 22 June 1975 the plaintiff, then aged 18, suffered a serious accident while working as deckhand on a tug called Ina in a fjord at Lulea in Sweden. In the accident his left leg was so badly injured that it had to be amputated at mid-thigh level, with grievous consequences for the whole of his future life.On 30 November 1977 the plaintiff brought an action in the High Court in England against the defendants, by whom he was employed at the time of the accident, claiming damages for the injuries caused to him by it. The action was tried by Staughton J . on 23, 24 and 25 July 1984. He held that the defendants were liable in negligence to the plaintiff but that they were entitled to limit their liability to £43,893 under the provisions relating to limitation of liability contained in the Merchant Shipping Acts 1894 to 1984. In view of his decision that the defendants were entitled to limit their liability to this sum, the judge did not assess the full amount of the damages which the plaintiff would otherwise have been entitled to recover. He gave judgment for the plaintiff for £59,169.02 inclusive of agreed interest.

- 4 -

The plaintiff appealed to the Court of Appeal against the judge's decision that the defendants were entitled to limit their liability. The defendants cross-appealed against the judge's decision that they were liable at all. The appeal and cross-appeal were heard by the Court of Appeal (Fox, Parker and Neill L.JJ.) on 14 and 15 January 1986. The reserved judgment of the court prepared by Neill L.J. was handed down on 16 April 1986. In that judgment the court allowed the plaintiff's appeal and dismissed the defendants' cross-appeal. It further remitted the case to the judge for him to assess the full amount of the damages which the plaintiff was entitled to recover. On 28 April 1986 Staughton J. assessed those damages at £178,450.05 inclusive of agreed interest.My Lords,the primary facts relevant to this appeal are not in dispute. The appellants are a wholly-owned subsidiary of a Dutch dredging company, Stevin Baggeren B.V. ("Stevin"). In June 1975 the appellants and Stevin were together engaged in dredging operations for the Swedish government in the fjord at Lulea. The dredger was moored off-shore and a tug called Ina, owned by Stevin, was used in the operations. These continued round the clock so that the complement of the tug worked shifts. There were two masters of the tug, each of whom worked a 12-hour shift. One of these was Captain Clifford, who was employed by the defendants. The other was Captain Sas, who was employed by Stevin.The part played by the plaintiff in the operations and the circumstances of his accident are concisely set out in the judgment of Staughton J. (transcript, pp. 35-36):The task in hand there was dredging a fjord. At first the plaintiff worked on the dredger for a few days; then he was transferred to being a deckhand on the tug Ina. The complement of the tug was a master, Captain Sas, the plaintiff as deckhand, and a greaser to look after the engines. It was used in the main to push barges from alongside the dredger to a dumping ground, but also to transport those working on the operation from and to the shore at the beginning and end of shifts. The task of the plaintiff as deckhand was to keep the deck clean and tidy, and to see to the tying up and untying of the tug, whether alongside the dredger or elsewhere. This involved two man-made fibre ropes, each 1 1/2 inches in diameter, with an eye at one end. The eye of one rope would be placed over a bollard on the dredger, and then the rope would be secured to two bollards on the tug by two figure-of-eight turns and two half-hitches. The remainder of the rope would then be coiled on the deck of the tug inboard of the two bollards. The same process would be carried out for each rope, except that one was secured to the for'ard end of the tug and one to the aft end. To untie the ropes the plaintiff would first slacken the aft rope by removing it from the two bollards on the tug, next it would be removed from the bollard on the dredger, and the plaintiff would haul it aboard the tug. He would then do the same with the for'ard rope. Finally, he would give two knocks on the side of the wheelhouse to indicate to Captain Sas that the ropes were both on board. On 22 July 1975, when the plaintiff had been working on the tug for two days, the tug

- 5 -

was tied up to the dredger, and the time came when she was to leave. Captain Sas, who did not speak much English, signed to the plaintiff to untie the ropes. The plaintiff took the aft rope off first as the tug was leaving with engine astern. He then moved to the for'ard rope and started removing it from the two bollards on board the tug. As he was doing so, Captain Sas put the engine astern prematurely; he started to move the tug away from the dredger. The plaintiff immediately stood back as he thought that the rope might break and injure him, but instead it was pulled through the bollard and he went with it. He has some recollection of the rope being round his left leg and of being pulled through the bollard. After that he was in the water, with his left leg very seriously injured."The plaintiff sought to establish liability against the defendants on various grounds. Of these it is only necessary to consider two: the first that the accident was caused by the negligence of Captain Sas for which the defendants were vicariously liable; and the second that the accident was caused by the negligence of the defendants in failing to provide a safe system of work for the plaintiff.With regard to the first ground of liability, the defendants did not admit that the accident had been caused by any negligence of Captain Sas. They further contended that, even if it had been so caused, Captain Sas was the servant of Stevin and not of the defendants, so that the defendants were not vicariously liable for the consequences of his negligence.The defendants did not call Captain Sas to give evidence. In these circumstances Staughton J. rightly had no hesitation in finding, first, that Captain Sas had been negligent in putting the tug's engines astern prematurely, and, secondly, that the accident had been caused by his negligence in this respect. With regard to that negligence he said (transcript, p. 38):
"That may have taken the form of carelessness in not waiting for the plaintiff's signal before putting the engine astern, or else a deliberate, but dangerous, manoeuvre designed to encourage the plaintiff to perform his tasks more quickly."
On the question of the defendants' vicarious liability for the negligence of Captain Sas Staughton J. said (transcript, pp. 42-43):
"On the evidence, it seems to me that the defendants, through some person at Lulea, in effect instructed the plaintiff to work with and under Captain Sas pursuant to the plaintiff's contract of employment with the defendants. They made Captain Sas the foreman, boss or chargehand through whom their orders would reach the plaintiff, and to whom the plaintiff would render directly the service which he owed to the defendants. As between the plaintiff and the defendants, Captain Sas must be taken to have been the servant of the defendants. If that involves any novel doctrine, so be it. The common law would become obsolete if it did not develop to meet new situations."

- 6 -

With regard to the second ground of liability relied on by

the plaintiff, Staughton J. found that the system of work provided

for the plaintiff was not unsafe. In this connection he said (transcript, pp. 38-39):
"The task of the plaintiff was a simple one and well within his capabilities. Given due care and attention on the part of himself and Captain Sas, there was nothing unsafe about it."
In the result Staughton J. decided that the plaintiff succeeded against the defendants on the first ground of liability referred to above, namely, vicarious liability for the negligence of Captain Sas, but failed on the second ground of liability, namely, failure of the defendants to provide a safe system of work for the plaintiff.The defendants contended that, if they were liable to the plaintiff, they were entitled to limit the amount of their liability to £43,893 under the provisions relating to limitation of liability contained in the Merchant Shipping Acts. For the plaintiff it was not disputed that, if the defendants were entitled to limit their liability under these provisions, the amount of their limited liability was £43,893. It was disputed, however, that the defendants were entitled to limit their liability at all.The right to limit liability for certain occurrences, including accidents causing personal injury to some person, was given to shipowners only by section 503 (in Part VIII) of the Merchant Shipping Act 1894. That right was extended to persons other than shipowners by section 3 of the Merchant Shipping (Liability of Shipowners and Others) Act 1958 which provides:
"(1) The persons whose liability in connection with a ship is excluded or limited by Part VIII of the Merchant Shipping Act 1894 shall include any charterer and any person interested in or in possession of the ship, and, in particular, any manager or operator of the ship. (2) In relation to a claim arising from the act or omission of any person in his capacity as master or member of the crew or (otherwise than in that capacity) in the course of his employment as a servant of the owners or of any such person as is mentioned in subsection (1) of this section - ( a ) the persons whose liability is excluded or limited as aforesaid shall also include the master, member of the crew or servant, and, in a case where the master or member of the crew is the servant of a person whose liability would not be excluded or limited apart from this paragraph, the person whose servant he is; . . ."
Staughton J., having decided that, as between the plaintiff and the defendants, Captain Sas was to be taken to have been the servant of the defendants, went on to hold that the defendants were entitled to limit their liability, subject to any question of actual fault or privity, under subsection 2( a ) above, on the ground that the plaintiff's claim arose from the act or omission of Captain Sas in his capacity as master of the tug Ina and that

- 7 -

Captain Sas was at the time of such act or omission the servant of the defendants. Staughton J. went on to find that there had been no actual fault on privity of the defendants (a finding which was affirmed by the Court of Appeal and not challenged in your Lordships' House), and held that the defendants were therefore entitled to limit their liability as contended for by them.Neill L.J., giving the judgment of the Court of Appeal [1986] Q.B. 965, did not accept the judge's view that the defendants were liable to the plaintiff because Captain Sas was to be taken, as between the plaintiff and the defendants, to have been the servant of the defendants. He concluded, after an examination of all the relevant evidence, that Captain Sas was, and remained at all material times, the servant of Stevin. He went on to say, however, that this circumstance did not conclude the issue of liability in favour of the defendants, because it was also necessary to consider the question whether the defendants were in breach of the personal duty of care owed by them to the plaintiff. In this connection he said, at p. 974:
"In the instant case the relevant facet of the general duty of the defendants to take reasonable care for the safety of the young plaintiff was the obligation to provide and maintain in operation a safe system of work."
Neill LJ. then examined the evidence relating to the system of work, and in particular that of Captain Clifford, the other tugmaster, who alternated with Captain Sas in the command of the tug. Captain Clifford's evidence was that he did not rely on knocks by his deckhand on the outside of the wheelhouse in order to be assured that the deckhand had completed his work. He relied instead on one of three indications: a shout by the deckhand of "all gone," a hand signal by the deckhand to that effect, or himself coming out of the wheelhouse and looking at the bollards on the tug. Having examined the evidence Neill L.J. said, at pp. 974-975:
"In these circumstances there was scope for a finding that the system used by Captain Sas was not a safe system, because it relied largely (if not exclusively) on a sound signal of a kind which was not distinctive like the shout 'all gone,' and which might be confused with one of the many other noises likely to be heard during dredging operations at sea. But the very experienced judge, who heard the evidence, came to the conclusion that the system of work was not unsafe. Furthermore, the judge concluded that the accident happened, not because of a fault in the system, but because Captain Sas either carelessly did not wait for the signal, or because he deliberately put the tug astern to make the plaintiff move more quickly. We have come to the conclusion, however, that in the circumstances of this case it is unrealistic to attempt to draw a clear dividing line between the system of work which Captain Sas laid down for the plaintiff to follow, and the actual conduct of Captain Sas which caused the accident and the plaintiff's injuries. Captain Sas did not give evidence and the precise sequence of events can only be a matter of conjecture. We consider that it is just as likely that Captain Sas mistook some other sound for a signal from the plaintiff as that he

- 8 -

carelessly failed to wait for the plaintiff's signal or that he put the engines astern deliberately in order to make the plaintiff hurry up."Neill L.J. then discussed at length the principles of law governing the question of when employers may be held liable for the acts or omissions of a person who is not their servant. In the course of that discussion he referred to and cited from two well known English authorities, Davie v. New Merton Board Mills Ltd. [1959] A.C. 604 and Wingfield v. Ellerman's Wilson Line Ltd. [1960] 2 Lloyd's Rep. 16, and a recent decision of the High Court of Australia, Kondis v. State Transport Authority (1984) 55 A.L.R. 225.He expressed his conclusions with regard to the proper principles of law to be applied and the proper approach to be followed, at pp. 979-980:
"Neither in the cases to which we were referred in the course of the argument, however, nor in the other authorities to which we have had regard in the course of considering this judgment, have we been able to discover any general principle which provides a sure guide to the limits of vicarious liability in tort. It is clear that the legacy of the doctrine of common employment remains, together with the rather uneasy division between cases where an employer may be liable for the negligent performance of his personal duties by a third party and cases where the employer may be liable vicariously for the negligence of an employee or agent. It seems to this court, therefore, that in a case where a plaintiff is suing in respect of injuries received by him in the course of his employment and while working at a place at which he is required by his employer to work, the only satisfactory approach is to look at all the circumstances in the light of the fact that it is the basic duty of the employer to take reasonable care so to conduct his operations as not to subject those employed by him to unnecessary risk. The relevant circumstances will include: (a) the skill and experience of the injured employee, (b) the nature of the task on which the employee was employed, (c) the place where the injured employee was employed and the degree of control which the employer exercised at that place, (d) the relationship, if any, between the injured employee and the individual tortfeasor, (e) the relationship, if any, between the employer and the individual tortfeasor, (f) the interest, if any, of the employer in the actual task which the individual tortfeasor was performing when the accident occurred."
Neill L.J. went on to apply this statement of the proper principles of law to be applied and the proper approach to be followed to the facts of the present case, at p. 980:
"It is true that the tug Ina was owned by Stevin and that Captain Sas was employed by Stevin. But Captain Sas and the plaintiff were working together in a small team of three to perform a contract which, as we understand the matter,

- 9 -

the defendants and Stevin were carrying out together. Indeed, as we have already observed, on alternate shifts the captain of the tug was Captain Clifford, an employee of the defendants. The defendants put the plaintiff (who was a young and inexperienced deckhand) under the control and into the care of Captain Sas. He was their agent or delegate to take reasonable care to devise a safe system of work on board the tug. In the circumstances of this case, he was also the agent or delegate to take reasonable care to see that the safe system was carried out. The defendants themselves, of course, were a limited company with headquarters in Guildford. They could only operate through their employees or other agents. It seems to us that on any sensible view of the doctrine of vicarious liability Captain Sas was the agent or delegate of the defendants to perform their duty towards the plaintiff. If there had been clear evidence that Captain Sas had put the tug astern when he knew that the plaintiff had not released the rope, we would have felt great difficulty in regarding the defendants as being vicariously responsible for such an action. The more probable cause of this accident was the absence of a safe system, or a careless disregard by Captain Sas of the risks which his unsafe method of work entailed. With all due respect to the judge, we would decide the issue of liability in favour of the plaintiff, not because we think that Captain Sas 'must be taken to have been the servant of the defendants, but because he was the person entrusted by the defendants with performing their duty to take reasonable care for the safety of this young man."Neill L.J. then turned to the issue of limitation of liability. After setting out the relevant parts of section 503 of the Act of 1894 and section 3 of the Act of 1958, he said that the defendants would only be entitled to limit their liability if they could show that they fell into one or more of the following categories:(1) the owners of the tug,(2) the charterers of the tug,(3) a person interested in the tug,(4) a person in possession of the tug,(5) the manager or operator of the tug,(6) the masters of Captain Sas. The judge, he said, had held that the defendants were entitled to limit their liability on the ground that they fell into category (6), namely, masters of Captain Sas. On the Court of Appeal's view of the matter, however, Stevin were the masters of Captain Sas and the defendants were not. The defendants did not fall into any of the other categories either. Accordingly they were not entitled to limit their liability.My Lords,I consider first the primary issue as to whether the defendants are liable to the plaintiff at all, either on the ground relied on by Staughton J. or on the different ground relied on by the Court of Appeal. In relation to this issue I would make a number of observations. First, there was, in my opinion, no material on which Staughton J. was entitled to find that a possible explanation of the action of Captain Sas in putting the engines astern prematurely was that he did so deliberately in order to encourage the plaintiff to perform his tasks more quickly. There was no evidence that Captain Sas thought that the plaintiff worked too slowly, and, in the absence of such evidence, the suggestion that Captain Sas deliberately put the plaintiff in danger in order to teach him a lesson is not one which ought to be entertained.

- 10 -

Secondly, I agree with the Court of Appeal that Captain Sas was, and remained at all material times, the servant of Stevin, and that Staughton J. was wrong in holding that, as between the plaintiff and the defendants, Captain Sas must be taken to have been the servant of the defendants. Thirdly, I agree with the Court of Appeal that the real question in the case is whether the defendants were in breach of the duty of care which they owed to the plaintiff in not devising and operating a safe system of work for him. Fourthly, I agree with the Court of Appeal that there was scope on the evidence for a finding that the system of work devised by Captain Sas, under which the plaintiff was to inform him that he had completed his work of unmooring by knocking on the outside of the wheelhouse, was unsafe. However, for reasons which will become apparent, I do not consider that it is necessary to reach a conclusion on that point.My Lords,the Court of Appeal regarded the case as raising difficult questions of law on which clear authority was not easy to find. With great respect to the elaborate judgment of that court, I think that they have treated the case as more difficult than it really is. A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, the provision of a safe system of work has two aspects:(a) the devising of such a system and(b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non- delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty.In the present case the relevant system of work in relation to the plaintiff was the system for unmooring the tug Ina. In the events which occurred the defendants delegated both the devising and the operating of such system to Captain Sas, who was not their servant. An essential feature of such system, if it was to be a safe one, was that Captain Sas would not work the tug's engines ahead or astern until he knew that the plaintiff had completed his work of unmooring the tug. The system which Captain Sas devised was one under which the plaintiff would let him know that he had completed that work by giving two knocks on the outside of the wheelhouse. I have already said that I agree with the Court of Appeal that there was scope, on the evidence, for a finding that that system was not a safe one. I shall assume, however, in the absence of any contrary finding by Staughton J., that that system, as devised by Captain Sas, was safe. The crucial point, however, is that, on the occasion of the plaintiff's accident, Captain Sas did not operate that system. He negligently failed to operate it in that he put the tug's engines astern at a time when the plaintiff had not given, and he, Captain Sas, could not therefore have heard, the prescribed signal of two knocks by the plaintiff on the outside of the wheelhouse. For this failure by Captain Sas to operate the system which he had devised, the defendants, as the plaintiff's employers, are personally, not vicariously, liable to him.

- 11 -

It was contended for the defendants that the negligence of Captain Sas was not negligence in failing to operate the safe system which he had devised. It was rather casual negligence in the course of operating such system, for which the defendants, since Captain Sas was not their servant, were not liable. I cannot accept that contention. The negligence of Captain Sas was not casual but central. It involved abandoning the safe system of work which he had devised and operating in its place a manifestly unsafe system. In the result there was a failure by the defendants, not in devising a safe system of work for the plaintiff, but in operating one.On these grounds, which while not differing in substance from those relied on by the Court of Appeal are perhaps more simply and directly expressed, I agree with that court that the defendants are liable to the plaintiff.I turn to the secondary issue of limitation of liability. With regard to this, I agree entirely with the analysis of the relevant statutory provisions made by the Court of Appeal. In order to succeed on limitation, the defendants had to bring themselves within the six categories of persons specified by Neill L.J., to which I referred earlier. On the footing that Captain Sas was not to be taken to have been the defendants' servant, they could not bring themselves within category (6). Nor, in my opinion, could they bring themselves within any of the other categories, (1) to (5). Before your Lordships counsel for the defendants submitted that they came within category (3) as persons interested in the tug. In my opinion the expression " any person interested in ... the ship," as used in section 3(1) of the Act of 1958, means a person having a legal or equitable interest in the ship. In the present case the whole legal and equitable interest in the tug Ina was, on the evidence, in Stevin. I do not therefore think that there is any substance in this submission.My Lords,for the reasons which I have given, I consider that the Court of Appeal decided rightly both the issues which arise on this appeal, and I would accordingly dismiss the appeal with costs.

LORD MACKAY OF CLASHFERN

My Lords,For the reasons given in the speeches of my noble and learned friends Lord Hailsham of St. Marylebone and Lord Brandon of Oakbrook, with which I agree, I would dismiss the appeal.

LORD ACKNER

My Lords,For the reasons given in the speeches of my noble and learned friends Lord Hailsham of St. Marylebone and Lord Brandon of Oakbrook, with which I agree, I would dismiss the appeal.

- 12 -