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ty” does not mean that the court must jury for which the employer is liable determine judicially that there is a legal for compensation, the court of appeal liability; it is sufficient that such liabil- will not interfere if there is some eviity is alleged.41 Compensation paid by dence to support the finding that the the employer after receiving notice of third person was guilty of negligence. 46 the accident and of the claim, but before In an action for indemnity under the any other proceedings had been taken, act, notice under rule 19 must be served, may be recovered by the employer from although the defendant was a party to the "other person." 42

the compensation proceedings.47 But an An employer who has paid compen- employer may, if he chooses, bring an sation for the death of an employee may action for indemnity under ý 6, subsec. recover indemnity from person 2, independently of the general rules as whose negligence caused the injury, al- to third party procedure.48 though the dependent to whom the compensation was paid was an illegitimate IX. Application to workmen in the sea daughter and would not of herself have

service (8 7). any cause of action against the negligent person.

a. Text of $ 7. In an action in rem against a German vessel brought by the owners of an Irish Section 7 (1) This act shall apply to vessel injured by a collision between the masters, seamen, and apprentices to the two, the owners of the latter vessel sea service and apprentices in the seacannot include in damages the amount fishing service, provided that such perpaid a seaman for compensation for in- sons are workmen within the meaning of juries for fright before the collision this act, and are members of the crew of took place.44 An employer is entitled any ship registered in the United Kingto recover as indemnity the costs of the dom, or of any other British ship or vescompensation proceedings, as well as sel of which the owner, or (if there is the compensation awarded.45 Where the more than one owner) the managing ownemployer seeks indemnity against a third er, or manager resides or has his principerson whose negligence caused the in-'pal place of business in the United Kingthe defenders were not parties, and with 397, [1912] W. C. Rep. 217, 5 B. W. C. C. which they have no concern.”

449. An employer who has paid compensation 44 The Rigel (1912; Adm.) 106 L. T. N. S. to a servant who was kicked by a horse (Eng.) 648, (1912] W. N. 56, 28 Times belonging to a third person whose servant L. R. 251, 12 Asp. Mar. L. Cas. 192, L. R. brought the horse upon the employer's [1912] P. 99, 81 L. J. Prob. N. S. 86. premises and left it there unattended can- 45 Great Northern R. Co. v. Whitehead not recover contribution against the third (1902) 18 Times L. R. (Eng.) 816. person, since the negligence of such third 46 Cutsforth v. Johnson (1913] W. C. & person cannot be considered the natural | Ins. Rep. (Eng.) 131, 6 B. W. C. C. 28, 108 and proximate cause of the injury to the L. T. N. S. 138. employer's servant. Bradley v. Wallaces 47 Howard v. Driver (1903) 5 W. C. C. [1913] 3 K. B. (Eng.) 629, 82 L. J. K. B. (Eng.) 153. N. S. 1074, 109 L. T. N. S. 281, 29 Times Where both the undertakers and a conL. R. 705, [1913] W. N. 239, [1913] W. tractor with them are made respondents C. & Ins. Rep. 620, 6 B. W. C. C. 706. to a claim for compensation under the act,

Driving a motor car with a defective and the contractor is found liable to pay hooter is not such negligence as to render compensation, a claim for indemnity canthe driver liable to indemnify the employer not be made in the arbitration by the of the driver of a cart whose horse was undertakers against the contractor under frightened by the motor car, where the rule 23 (2) of the workmen's compensation county court judge found that the absence rules 1898, unless the notice prescribed by of a proper hooter was not the cause of rule 19 has been given. Appleby v. Horse. the accident. Lankester v. Miller-Hetherley Co. [1899] 2 Q. B. (Eng.) 521, 80 L. T. ington (1910) 4 B. W. C. C. (Eng.) 80. V. S. 853, 68 L. J. Q. B. N. S. 892, 47 Week.

41 Page v. Burtwell (1908] 2 K. B. (Eng.) Rep. 614, 15 Times L. R. 410. 758, 77 L. J. K. B. N. S. 1061, 99 L. T. 48 Nettleingham v. Powell [1913] 3 K. B. N. S. 542, 125 L. T. Jo. 336, 1 B. W. C. C. (Eng.) 20:), 82 L. J. K. B. A. s. 911, 108 267.

L. T. N. S. 912, 29 Times L. R. 578, 57 Sol. 42 Thompson v. North Eastern Marine Jo. 593, [1913] W. N. 182, [1913] W. C. Engineering Co. (1903] 1 K. B. (Eng.) 428, & Ins. Rep. 424, 6 B. W. C. C. 479, affirm72 L. J. K. B. X. S. 222, 88 L. T. N. S. ing the divisional court [1913] 1 K. B. 239, 19 Times L. R. 206.

(Eng.) 113, [1912] W. N. 278, 82 L. J. K. 43 Smith's Dock Co. y. Readhead [1912] ! B. N. S. 54, 108. L. T. N. S. 219, 29 Times 2 K. B. (Eng.) 323, 81 L. J. K. B. N. S. L. R. 88, 6 B. W. C. C. 262. 808, 106 L. T. X. S. 813, 28 Times L. R.

dom, subject to the following modifica- chant shipping act 1894 (which relates tions:

to the limitation of a shipowner's lia(a) The notice of accident and claim bility in certain cases of loss of life, infor compensation may, except where the jury, or damage), but the limitation on person injured is the master, be served the owner's liability imposed by that on the master of the ship as if he were section shall apply to the amount rethe employer, but where the accident coverable by way of indemnity under happened and the incapacity commenced the section of this act relating to remeon board the ship it shall not be neces- dies both against employer and stranger, sary to give any notice of the accident; as if the indemnity were damages for

(b) In the case of the death of the loss of life or personal injury; master, seaman, or apprentice, the claim (g) Subsections (2) and (3) of ý 174 for compensation shall be made within of the merchant shipping act 1894 (which six months after news of the death has relates to the recovery of wages of seabeen received by the claimant; men lost with their ship) shall apply

(c) Where an injured master, seaman, as respects proceedings for the recovery or apprentice is discharged or left be- of compensation by dependents of mashind in a British possession or in a ters, seamen, and apprentices lost with foreign country, deposition respecting their ships as they apply with respect the circumstances and nature of the in- to proceedings for the recovery of wages jury may be taken by any judge or due to seamen and apprentices; and promagistrate in the British possession, and ceedings for the recovery of compensaby any British consular officer in the tion shall in such a case be maintainable foreign country, and if so taken shall if the claim is made within eighteen be transmitted by the person by whom months of the date at which the ship is they are taken to the board of trade, and deemed to have been lost with all hands: such depositions or certified copies there (2) This act shall not apply to such of shall, in any proceedings for enforc- members of the crew of a fishing vessel ing the claim, be admissible in evidence as are remunerated by shares in the as provided by V Ø 691 and 695 of the profits or the gross earnings of the workmerchant shipping act 1894, and those ing of such vessel. sections shall apply accordingly;

(3) This section shall extend to pilots (d) In the case of the death of a mas- to whom part X. of the merchant shipter, seaman, or apprentice, leaving no de- ping act 1894 applies, as if a pilot when pendents, no compensation shall be pay- employed on any such ship as aforesaid able, if the owner of the ship is, under were a seaman and a member of the the merchant shipping act 1894, liable crew. to pay of burial;

[This section is entirely new.] (e) The weekly payment shall not be payable in respect of the period during

b. Proceedings under this section in which the owner of the ship is, under the

general, merchant shipping act 1894, as amended The act has no application outside of by any subsequent enactment, or other the territorial limits of the United Kingwise, liable to defray the expenses of dom except as it is expressly given in maintenance of the injured master, sea- 7.49 And this section does not apply man, or apprentice;

unless the ship is registered in the (f) Any sum payable by way of com- United Kingdom.50 pensation by the owner of a ship under The county court judge or other arbithis act shall be paid in full, notwith-trator has no jurisdiction over an applistanding anything in ý 503 of the mer- cation for compensation to an appren

49 A firm of English contractors are not A charwoman taken by a French woman liable for compensation in respect to the to do work for her in France, and injured death of a workman engaged in working while in that country, is not within the for them in the island of Malta. Tomalin purview of the act, where there is nothing v. Pearson (1909] 2 K. B. (Eng.) 61, 78 to show that the parties intendel their L. J. K. B. N. S. 863, 100 L. T. N. S. 685, contract to be controlled by the lex loci 25 Times L. R. 477, 2 B. W. C. C. 1.

contractus. Hicks v. Maxton (1907; C. C.) A workman lost in the Bay of Biscay 124 L. T. Jo. (Eng.) 135, 1 B. W. C. C. while on his way to work at Teneriffe is 150. not within the act. Schwartz v. India 50 Where the registration of a ship was Rubber, Gutta Percha & Teleg. Works Co. canceled a few days before she sailed, with [1912] 2 K. B. (Eng.) 299, [1912] W. N. a view to the sale of the ship to foreigners, 98, 28 Times L. R. 331, 81 L. J. K. B. N. a seaman who sailed on the ship is not S. 780, [1912] W. C. Rep. 190, 106 L. T. within the protection of the act. Mortimer N. S. 706, 5 B. W. C. C. 390.

v. Wisker (1914] 3 K. B. (Eng.) 699, 30

the expenses

acts.52

V.

tice who was serving on board a ship, to have been lost with all hands) is not where the articles of apprenticeship are a condition precedent to a claim for still running. 51 Payments made to an compensation under the workmen's cominjured seaman under the merchant ship- pensation act, where, by the ordinary ping acts are not to be regarded in fixing rules of evidence, a seaman would be compensation to be paid subsequently deemed to have been lost at sea with to the period during which the ship- his ship.54 owner is liable under such acts for the

c. Persons in sea service excluded from expenses and maintenance of the injured

§ 7 (87, subsec. 2). seaman, as ♡ 7 (1) (e) is intended only to prevent the overlapping of the two It is clear that a member of the crew

But if the shipowners are not of a fishing vessel who receives as his liable for the hospital expenses paid by remuneration a share of the profits of them, such expenses must be regarded the catch is excluded from the provisions in fixing the amount of compensation.53 of the act.55 And notwithstanding he re

The lapse of twelve months during ceives a regular weekly wage, he is not which a ship has not been heard of within the statute, if he also receives a (after which, under ” 174 of the mer- share of the profits.56 But it has been chant shipping act 1894, she is deemed held that in cases where the share of the Times L. R. 592, [1914] W. N. 281, 137 | cepted from the provisions of the act. AdL. T. Jo. 211, 83 L. J. K. B. N. S. 1245, 111 miral Fishing Co. v. Robinson [1910] 1 L. T. X. S. 732, 7 B. W. C. C. 494.

K. B. (Eng.) 540, 79 L. J. K. B. N. S. 551, 51 Turner v. The Haulwen (1915) W. C. 102 L. T. N. S. 203, 26 Times L. R. 299, 54 & Ins. Rep. (Eng.) 50, 8 B. W. C. C. 242. Sol. Jo. 305, 3 B. W. C. C. 247. This decision was based on the express A "share-hand" on a trawler is not enterms of § 7 (1) (d), that the weekly pay. titled to compensation for injuries, although ments shall not be payable in respect of a he was at the time engaged in work on period during which the owner of a ship one of the employer's steam cutters for is liable to defray the expense of the which he received a fixed sum. Whelan maintenance of the injured apprentice. Great Northern Steam Shipping Co.

52 No deduction ought to be made from [1909) W. N. (Eng.) 135, 78 L. J. K. B. the amount of compensation to an injured N. S. 860, 100 L. T. N. S. 913, 25 Times seaman, in respect to the cost of main- L. R. 619. tenance in a foreign hospital, for which Members of fishing crews, who receive the shipowners are liable under the mer- sleeping room and provision and a certain chant shipping acts, where he asks for wage per week, and a further share on the compensation only from the date of his net profits of the voyage, are members of return to England. McDermott v. The the crew of a fishing vessel remunerated by Tintoretto (1910] W. N. (Eng.) 274, 55 shares in the profit of the working of such Sol. Jo. 124 [1911] A. C. 35, 80 L. J. K. B. vessel within § 7, subdiv. 2, of the act. N. S. 161, 103 L. T. N. S. 769, 27 Times L. Tindall v. Great Northern S. S. Fishing Co. R. 149, 11 Asp. Mar. L. Cas. 515, 4 B. W. (1912) 56 Sol. Jo. (Eng.) 720, 5 B. W. C. C. C. 123, 48 Scot. L. R. 728.

C. 667. 53 Kempsonv. The Moss Rose (1910) 4 56 A boatswain on a steam fishing trawB. W. C. C. (Eng.) 101. This decision was ler, who was remunerated by maintenance rendered prior to the decision of the House and poundage, dependent upon the profits of Lords in McDermott v. The Tintoretto of the fishing expedition, is excluded from (Eng.), which reversed the court of appeal the act by § 7, subsec. 2, although he also in the position which that court had taken. received wages. Costello v. The Pigeon However, it would appear that the cases [1913] A. C. (Eng.) 407, 82 L. J. K. B. N. are fundamentally different, and that the S. 873, 108 L. T. N. S. 927, 29 Times L. R. decision of the House of Lords is not neces 595, 57 Sol. Jo. 609, [1913] W. N. 187, 50 sarily conclusive of the case at bar. Scot. L. R. 976, [1913] W. C. & Ins. Rep.

54 Maginn v. Carlingford Lough S. S. Co. 410, 6 B. W. C. Č. 480. (1909) 43 Ir. Law Times, 123.

Members of a crew of a fishing vessel, 55 The mate or first fisherman of a steam- who received in addition to their regular trawler, whose sole remuneration was wages a share of stocker, which is money certain proportion of the net balance of received from the sale of the tails of fish, the gross price of the fish caught on roes, shellfish, etc., and liver money, which trip after deducting certain specified ex is a share of the proceeds of the livers penses, which did not include the wages cleaned from the fish, received a part of of other members of the crew, is within the gross earnings of the working of the the exception of § 7, subsec. 2. Gill v. vessel, and are not entitled to compenAberdeen Steam Trawling & Fishing Co. sation for injuries under $ 7, subdiv. 2, of [1908] S. C. (Scot.) 328.

the act. Burman v. Zodiac Steam Fishing An engineer upon a steam fishing boat, Co. [1914] 3 K. B. (Eng.) 1039, 30 Times who was paid by a share in the profits L. R. 651, 83 L. J. K. B. N. S. 1683, [1914] upon a guaranty that they should never W. N. 329, 7 B. W. C. C. 767. amount to less than a certain sum, is ex If a member of the crew of a fishing ves.

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profits made by the fisherman is so small, ment in which the workman was emas to be negligible, the county court ployed at any time within the twelve judge may find that he is not remuner- months previous to the date of the disated by a share of the gross profits, so ablement or suspension, whether under as to be excluded from the statute.57 one or more employers, he or his depend

A flatboat engaged in carrying barrels : ents shall be entitled to compensation of fish from the fishing station to ves-, under this act as if the disease or such sels, and empty barrels back from the suspension as aforesaid were a personal vessels to the station, is not a fishing injury by accident arising out of and in boat within 7, subsec. 2, of the act, so the course of that employment, subject as to exclude a workman on the boat to the following modifications:who received a share of the profits from (a) The disablement or suspension the protection of the statute 58

shall be treated as the happening of the

accident; X. Compensation for industrial dis

(b) If it is proved that the workman eases ( $ 8, Sched. III.).

has at the time of entering the employa. Text of act relative thereto. ment wilfully and falsely represented

himself in writing as not having pre1. Text of $ 8.

viously suffered from the disease, comSection 8 (1) Where

pensation shall not be payable; (i) the certifying surgeon appointed (c) The compensation shall be recoverunder the factory and workshop act 1901 able from the employer who lastemfor the district in which a workman is ployed the workman during the said employed certifies that the workman is twelve months in the employment to the suffering from a disease mentioned in the nature of which the disease was due: third schedule to this act, and is there- Provided thatby disabled from earning full wages at (i) The workman or his dependents, the work at which he was employed; if so required, shall furnish that em

ployer with such information as to the (ii) A workman is, in pursuance of names and addresses of all the other any special rules or regulations made employers who employed him in the emunder the factory and workshop act 1901, ployment during the said twelve months suspended from his usual employment on as he or they may possess, and, if such account of having contracted any such information is not furnished, or is not disease; or

sufficient to enable that employer to take (iii) The death of a workman is proceedings under the next following caused by any such disease; and the dis- proviso, that employer upon proving that ease is due to the nature of any employ-' the disease was not contracted whilst the sel, as a matter of fact, received a share , may nevertheless be inferred that he was of the money received from the sale of to receive a share of the stocker or inedible fish tails, roes, shellfish, etc., and of the fish, where, by the custom of the port, a liver money, he received a share of the deck hand was entitled to such shares, and gross earnings of the vessel, although in the hand in question had received a share of the running agreement such as is required the stocker upon the preceding trip. Ibid. by the merchants shipping act 1894, S 400, The decision of the House of Lords in the column in the agreement headed "Share Costello v. The Pigeon (Eng.) must be of fishing profits” was struck through in considered as overruling the decision of the the space opposite the applicant's name to court of session, in which it was held that show that it did not apply to him. Ibid. a member of a fishing crew who was paid

A deck hand on board a steam trawler, a weekly wage and received in addition a who was paid weekly wages and received certain per pound sterling on the in addition a share of “stocker” or inedible gross value of the fish was not remunerated fish, was “remunerated by a share in the by a share of the profits or gross earnings, profits or gross earnings," and his depend so as to be excluded from the benefits of ents are not entitled to compensation for the act. Colquhoun v. Woolfe [1912] S. C. his death, although at the time that the 1190, 49 Scot. L. R. 911, [1912] W. C. Rep. vessel

lost with all on board, no 343. stocker had been taken. Stephenson 57 Williams v. The Duncan [1914] 3 K. Rossall Steam Fishing Co (1915) 84 L. J. B. (Eng.) 1039, 30 Times L. R. 651, (1914) K. B. X. S. (Eng.) 677, 112 L. T. N. S. 891, W. N. 329, 83 L. J. K. B. N. S. 1683, 7 B. [1915] W. C. & Ins. Rep. 121, [1915] W. W. C. C. 767; McCord v. The City of LiverN. 70, 8 B. W. C. C. 209.

pool [1914] 3 K. B. (Eng.) 1037, 30 Times Although the written contract of employ. L. R. 651, (1914] W. N. 329, 83 L. J. K. B. ment of a deck hand on a fishing vessel | N. S. 1683, 7 B. W. C. C. 767. stated only that the remuneration was to 58 Jamieson v. Clark (1909) 46 Scot. L. be 20s. a week and board and lodging, it | R. 73, [1909) S. C. 132, 2 B. W. C. C. 228.

sum

was

V.

workman was in his employment shall | certifying and other surgeons (including not be liable to pay compensation; and, dentists) under this section.

(ii) If that employer alleges that the (4) For the purpose of this section the disease was in fact contracted whilst the date of disablement shall be such date workman was in the employment of some as the certifying surgeon certifies as the other employer, and not whilst in his date on which the disablement comemployment, he may join such other em- menced, or, if he is unable to certify ployer as a party to the arbitration; and such a date, the date on which the cerif the allegation is proved, that other tificate is given: Provided thatemployer shall be the employer from (a) Where the medical referee allows whom the compensation is to be recover- an appeal against a refusal by a certifyable; and

ing surgeon to give a certificate of dis(11) If the disease is of such a nature ablement, the date of disablement shall as to be contracted by a gradual process, be such date as the medical referee may any other employers who during the said determine: twelve months employed the workman in (b) Where a workman dies without the employment to the nature of which having obtained a certificate of disablethe disease was due shall be liable to ment, or is at the time of death not in make to the employer from whom com- receipt of a weekly payment on account pensation is recoverable such contribu- of disablement, it shall be the date of tions as, in default of agreement, may be death. determined in the arbitration under this (5) In such cases, and subject to such act for settling the amount of the com- conditions as the Secretary of State may pensation;

direct, a medical practitioner appointed (d) The amount of the compensation by the Secretary of State for the purshall be calculated with reference to the pose shall have the powers and duties earnings of the workman under the em- of a certifying surgeon under this secployer from whom the compensation tion, and this section shall be construed recoverable;

accordingly. (e) The employer to whom notice of (6) The Secretary of State may make the death, disablement, or suspension is orders for extending the provisions of to be given shall be the employer who this section to other diseases and other last employed the workman during the processes, and to injuries due to the nasaid twelve months in the employment to ture of any employment specified in the the nature of which the disease was order, not being injuries by accident, due, and the notice may be given not- either without modification or subject to withstanding that the workman has vol- such modifications as may be contained untarily left his employment.

in the order. (f) If an employer or a workman is (7) Where, after inquiry held on the aggrieved by the action of a certifying application of any employers or workor other surgeon in giving or refusing to men engaged in any industry to which give a certificate of disablement, or in this section applies, it appears that a suspending or refusing to suspend a mutual trade insurance company or soworkman for the purposes of this sec- ciety for insuring against the risks untion, the matter shall, in accordance with der this section has been established for regulations made by the Secretary of the industry, and that a majority of the State, be referred to a medical referee, employers engaged in that industry are whose decision shall be final.

insured against such risks in the com(2) If the workman at or immediately pany or society, and that the company before the date of the disablement or or society consents, the Secretary of suspension was employed in any process State may, by provisional order, require mentioned in the second column of the all employers in that industry to insure third schedule to this act, and the dis- in the company or society upon such ease contracted is the disease in the first terms and under such conditions and column of that schedule set opposite the subject to such exceptions as may be set description of the process, the disease, forth in the order. Where such a comexcept where the certifying surgeon cer- pany or society has been established, but tifies that in his opinion the disease was is confined to employers in any particular not due to the nature of the employment, locality or of any particular class, the shall be deemed to have been due to the Secretary of State may for the purposes nature of that employment, unless the of this provision treat the industry, as employer proves the contrary.

carried on by employers in that locality (3) The Secretary of State may make or of that class, as a separate industry. rules regulating the duties and fees of (8) A provisional order made under

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