9. "Dock, wharf, quay." The combined effect of the workmen's compensation act 1897 and the factory acts was that every dock, wharf, or quay was deemed to be a "factory," within the meaning of the former act, whether steam power was or was not being used in the work on which the servant claiming compensation was engaged.65 So every dock or wharf is a factory, although none of the provisions of the factory act have in fact been applied to the dock or wharf.66 While this construction of the act is not apparently questioned in any subsequent decision, it is to be noted that it does not imply that every workman injured on a dock, wharf, or quay is entitled to compensation. A floating structure carrying cranes for loading and unloading ships, which is moored in a river 500 feet from the shore by chains fastened to piles driven 65 Raine v. Jobson [1901] A. C. (Eng.) 404, 70 L. J. K. B. N. S. 771, 49 Week. Rep. 705, 85 L. T. N. S. 141, 17 Times L. R. 627, 3 W. C. C. 135. In that case the respondents admitted that the construction of the act specified in the text was the correct one, and the admission was referred to by the lord chancellor as being "very frank and proper." The doctrine of the House of Lords has been also applied in Scotland. Strain v. Sloan (1901) 38 Scot. L. R. 475, 3 Sc. Sess. Cas. 5th series, 663, 8 Scot. L. T. 498. 66 Barrett v. Kemp Bros. [1904] 1 K. B. (Eng.) 517, 73 L. J. K. B. N. S. 138, 68 J. P. 196, 52 Week. Rep. 257, 90 L. T. N. S. 305, 20 Times L. R. 162, 7 W. C. C. 78 (applicant was in employ of firm of contractors, and was at work on a private road leading to the wharf), disapproving Hall V. Snowden [1899] 2 Q. B. (Eng.) 136, 1 W. C. C. 73, where a carter who was engaged in removing soil from a wharf was injured while he was leading his horse at a point in the street immediately adjoining the wharf, and it was held that the wharf was not a factory within the meaning of the statute, since no provisions of the factory acts were applicable to the wharf. Collins, L. J., said: "We must, I think, place a limited construction on § 18 of the act of 1895; the provisions of that section can only apply to a wharf when an accident has occurred on the wharf, which may then become a factory for the purposes of that section; but that was not the case here, and that section is inapplicable." 67 Ellis v. Cory [1902] 1 K. B. (Eng.) 38, 71 L. J. K. B. N. S. 72, 50 Week. Rep. 131, 85 L. T. N. S. 499, 18 Times L. R. 28, 66 J. P. 116, 6 W. C. C. 62. Collins, M. R., said: "We now find this particular kind of construction being used for the purposes of a wharf, and it is adapted for being used at a greater distance from the shore In a number of decisions in the court of appeal and in the court of session, the view was at first taken that a ship, although in a dock, was not itself a "dock," and workmen at work therein were not in the protection of the statute.69 But later, in a case in the House of Lords, it was held that compensation was recoverable where one of a gang of ship repairers fell from the gangway leading to the vessel, which was lying than an ordinary wharf, so as to save time and labor. It seems to me that it clearly was intended that structures of this kind should be included within the term 'wharf' as used in the factory acts. There is no real difference, except the distance from the shore, between this construction and that which has always been known as a wharf. I think, therefore, that this thing must be held to be a wharf within the meaning of § 7." 68 Recovery was sustained_in Kenny v. Harrison [1902] 2 K. B. (Eng.) 168, 71 L. J. K. B. N. S. 783, 87 L. T. N. S. 318, where a workman was injured while removing timber from a stack upon a piece of land within the ambit of a system of docks belonging to a railway company, which had been left by the company to timber merchants for the storage of timber. This land was about 40 yards from the water, and between it and the water ran the lines of a dock railway, not separated from the adjoining wharf by any fence of other physical barrier. Timber had some times been landed from the dock and brought to the land, but during the year of 1900 all the timber stacked thereon had been landed from other docks forming part of the dock system more or less remote. But recovery was denied in Haddock v. Humphrey [1900] 1 Q. B. (Eng.) 609, 82 L. T. N. S. 72, 69 L. J. Q. B. N. S. 327, 16 Times L. R. 143, 64 J. P. 86, 48 Week. Rep. 292, where a workman was killed while moving a log of timber in one of the yards near a wharf leased to a firm of timber merchants. 69 In Flowers v. Chambers [1899] 2 Q. B. (Eng.) 142, 1 W. C. C. 51, where a laborer engaged in discharging refuse and manure from a vessel into barges was injured while engaged in moving a barge by falling from one deck of the vessel to another, compensation was denied. A. L. Smith, L. J., said: are such that a recovery could be sustained on other grounds, and the decision itself turned upon other points." But in 1905 there was another House of Lords decision to the effect that the mere fact that a workman is injured while at work in a vessel which is floating in a dock does not entitle him to com in the dock for repairs.7 70 This decision | though in some of these cases the facts was construed to mean that every dock and wharf was a "factory," and all work of whatsoever kind done on a ship in a dock was within the statute. The following cases take the view that Raine v. Jobson, (Eng.) supra, laid down the broad principle that any workman injured while at work in a vessel in a dock is entitled to compensation for his injuries, al-pensation, and that a seaman injured "The question for our decision is not whether this dock was a factory within the meaning of the act, and I do not decide that point; the only question for us is whether a man employed on a ship lying in a dock is employed on, in, or about a dock within the meaning of this act. I think that he is not." Following Flowers v. Chambers (Eng.) supra, it was held in Durrie v. Warren (1898) 15 Times L. R. (Eng.) 365, 1 W. C. C. 78, that a boy working on a staging outside a ship, being engaged in assisting to screw up the doors of the ship after the loading was completed, was not within the statute, since the ship was not a "dock," and the staging was not machinery or plant used in the process of loading and unloading. Recovery was also denied in the following Scotch cases under the circumstances indicated: Jackson v. Rodger (1900) 2 Sc. Sess. Cas. 5th series, 533, 37 Scot. L. R. 390, 7 Scot. L. T. 76 (where the court emphasized the fact that the fitting of the engines in a steamer, the work in which the servant was engaged, was being done without the aid of any steam power). Laing v. Young (1900) 3 Sc. Sess. Cas. 5th series, 31, 38 Scot. L. R. 28. 8 Scot. L. T. 230 (act held not to be applicable to a lighter fitted with machinery, the property of and worked by stevedores, which was employed in raising goods from the hold to the deck of a vessel, moored between the lighter and the quay.) Healy v. Macgregor (1900) 2 Sc. Sess. Cas. 5th series, 634, 37 Scot. L. R. 454, 7 Scot. L. T. 402 (act held not to be applicable where the work of loading or unloading a ship is done by servants on board her, and by means of her own machinery). Aberdeen Steam Traveling & Fishing Co. v. Peters (1899) 1 Sc. Sess. Cas. 5th series, 786, 36 Scot. L. R. 573, 6 Scot. L. T. 378 (act held not to be applicable to the work of loading or unloading by means of machinery which forms part of the apparatus of a ship lying in a dock); Aberdeen Steam Traveling Co. v. Kemp, cited in Ruegg, Employers' Liability, 4th ed. p. 211, note (x). 70 Raine v. Jobson [1901] A. C. (Eng.) 404, 70 L. J. K.. B. N. S. 771, 49 Week. Rep. 705, 85 L. T. N. S. 141, 17 Times L. R. 627. The Earl of Halsbury, L. C., said: "It would be, to my mind, a most unreasonable and extraordinary extension of that immunity given to persons interested in seafaring adventure, to suppose, because the accident happened in or upon a ship, that therefore it is to be excluded from the operation of the act of Parliament generally." Lord Shand said: "The case is entirely different from that of a ship at sea, where the seaman who is injured is incurring only the ordinary maritime risks of men engaged in navigation. It is a case of shipbuilders or repairers who were in the use and occupation of a dock or factory as defined in the statute, having servants working for them, one of whom sustained an accident with the fatal result described in the evidence. I cannot see any ground upon which it can be held that the employers and their workmen were not within the purview and terms of the statute." The decision in Merrill v. Wilson [1901] 1 K. B. (Eng.) 35, 70 L. J. Q. B. N. S. 97, 65 J. P. 53, 49 Week. Rep. 161, 83 L. T. N. S. 490, 17 Times L. R. 49, 3 W. C. C. 155, in which it was not disputed that the quay upon which the applicant was working in unloading a vessel was capable of being a factory, was approved, and the inference was drawn by later cases that the House of Lords intended to overrule the earlier decisions, which it was apparently assumed were in conflict with the decision, in Raine v. Jobson (Eng.) but as a matter of fact the only mention of any of the earlier cases was a statement by one of the Lords that, as between Merrill v. Wilson and Flowers v. Chambers (Eng.) supra, he preferred the former case. 71 A workman engaged in loading or unloading a vessel lying in a dock is within the act. Cattermole v. Atlantic Transport Co. [1902] 1 K. B. (Eng.) 204, 50 Week. Rep. 129, 85 L. T. N. S. 513, 18 Times L. R. 102, 71 L. J. K. B. N. S. 173, 66 J. P. 4, 4 W. C. C. 28. And in Griffin v. Houlder Line [1904] 1 K. B. (Eng.) 510, 73 L. J. K. B. N. S. 202, 68 J. P. 213, 52 Week. Rep. 323, 90 L. T. N. S. 142, 20 Times L. R. 255, 6 W. C. C. 107, it was held that a seaman injured while clearing out the hold of a vessel moored to buoys preparatory to going to sea was within the statute. This case was, however, subsequently reversed by the House of Lords. See note 7, infra. A ship which is being unloaded, while lying at quay, by means of a steam-winch derrick on board of it, is a factory. Reid v. Anchor Line (1903) 5 Sc. Sess. Cas. 5th series, 435, 40 Scot. L. R. 352, 10 Scot. L. T. 591. A firm of employers engaged in painting and plumbing a ship lying in a dock, who while discharging his ordinary duties in | outside the general provisions of the such ship is not within the act.72 There workmen's compensation act 1897, unless, is nothing apparently in the actual de- of course, there was anything special in cision which conflicts with the earlier their work to take them outside the ordecision of the same court, but from the dinary position of seamen; and (2) that language used by the various judges it a ship afloat in a dock does not of necesis exceedingly difficult to determine the sity become part of the dock or premises precise ground of this decision. The fol- within the dock, so that the owner of a lowing extract from the judgment of ship which was afloat within a wet dock Romer, L. J., in the court of appeal,73 would not, merely because of that cirseems to be a fair statement of the prin- cumstance, become 'the person having the ciples laid down in that decision: "Now actual use or occupation of a dock or of it appears to me that the case is really any premises within the same or formgoverned by the principle of the de- ing part thereof,' so as to be deemed to cision in Houlder Line v. Griffin (Eng.) be the occupier of a factory. You must supra; for, doing the best I can (and I look, as I gather from that case, to the hope I have been successful) to extract circumstance to see whether the owners from the judgments of the majority of have brought themselves or not, by somethe Lords who decided that case, the thing special that they are doing, within principles upon which they decided it, I the operation of the act." think it appears that two principles were laid down: (1) That seamen employed in performing their ordinary duties as seamen afloat and on board the ship were sent employees to do the work, are occupiers of the vessel, notwithstanding that some members of the crew were in charge of the ship for the owners. Bartell v. Gray [1902] 1 K. B. (Eng.) 225, 71 L. J. K. B. N. S. 115, 66 J. P. 308, 50 Week. Rep. 310, 85 L. T. N. S. 658, 18 Times L. R. 70, 4 W. C. C. 95. Stirling, L. J., said: It "has been said by the master of the rolls there are two questions in this case: First, whether the ship is to be regarded as a factory; secondly, whether the respondents are undertakers. Now, as to the first question, after the case of Raine v. Jobson (Eng.) supra, I do not feel any difficulty. A dock is a factory; a ship in a dock is in a factory; an accident on a ship in a dock is an accident in a factory." A workman who had served as ship's carpenter on board a ship during one voyage, and was engaged for her next voyage, and in the interval between the voyages was employed by the shipowners in the work of repairing the ship, is, while engaged in unshackling the ship's cable, in order to turn it end for end, employed as a workman in the repair of a ship in or about a "factory." and the shipowners are liable to pay compensation, notwithstanding he was doing work that he might have been required to do at sea Cayzer v. Dickson (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 723. Lord M'Laren said: "Comparing Raine v. Jobson (Eng.) with Houlder Line v. Griffin (Eng.) it is plain that the supreme court of appeal has kept clearly in view the distinction between the case where the dock is hired by the shipowner for the purposes of repairing a ship, and the case where a ship is being repaired while lying in the water space of the dock, and surrounded by the structure of a dock which is under the administration of a company or public body." The lower courts, however, do not agree as to the precise basis of this decision. It admittedly prevents recovery in the case of an injury to a seaman A laborer (not a seaman) employed to bring his employers' barges, which were kept in the employers' dock at night, from their places in the dock, when the dock gates were opened, alongside vessels in an adjoining river, for the purpose of taking cargo into the barges and bringing it back to the quay of the dock, to be there unloaded, is within the statute, since the dock is a "factory" and the employers are the "occupiers" of it. Hanlon v. North City Mill. Co. (1903) 2 I. R. (Ir.) 163. 72 Houlder Line v. Griffin [1905] A. C. (Eng.) 220, 7 W. C. C. 87. The Earl of Halsbury, L. C., said: "It appears to me that the court was misled by the case of Raine v. Jobson [1901] A. C. (Eng.) 404, 70 L. J. K. B. N. S. 771, 49 Week. Rep. 705, 85 L. T. N. S. 141, 17 Times L. R. 627, but in that case the persons sought to be made responsible, and held to be responsible, were persons who had hired the dock for the purpose of repairing a vessel, and whether there was a vessel in it or not, they were liable if a workman met with an accident in that dock while engaged in working there. The court there proceeded upon the assumption that the then defendants were in the use and occupation of a dock which they had hired, and the fact that there was the wooden structure of a ship in it, being repaired, did not prevent the application of the section which rendered the occupiers of a dock the occupiers of a factory within the meaning of the act. If in that case the then defendants had the actual use and occupation of the dock, as they clearly had, it was impossible to deny that they were 'the undertakers.' This is a totally different case, and does not come within the meaning of that decision." 73 Smith v. Standard Steam Fishing Co. [1906] 2 K. B. (Eng.) 275, 8 W. C. C. 76. doing his customery duties on the ship although the ship may be in the dock.74 And see the cases defining the term "undertakers," post, 209. 10. "Warehouse." In some cases it was held that the leading idea of the section in which this expression is used was indicated by the preceding words "dock" wharf, or quay," and that the doctrine of ejusdem generis required that a warehouse, in order to be a factory within this section, should be near water.75 But this opinion did not prevail in the English court of appeal.76 In one case the term "warehouse" was held to involve the idea of "a place normally of considerable size, mainly used for the storage of goods in bulk or in | 74 A seaman employed on a steamer, who is injured while attending the boilers, is not entitled to compensation, although the vessel was, at the time, moored to a wharf, since the injury occurred while the applicant was attending to his usual duties as a seaman. Owens v. Campbell [1904] 2 K. B. (Eng.) 60, 73 L. J. K. B. N. S. 634, 68 J. P. 410, 52 Week. Rep. 481, 90 L. T. N. S. 811, 20 Times L. R. 459, 6 W. C. C. 54. This decision is squarely in line with the actual decision of the House of Lords in Houlder Line v. Griffin (Eng.). And a "rigger" on a vessel in a dock is not at work on, in, or about a factory. Thompson v. Sinclair [1906] 2 K. B. (Eng.) 278, note. In this case, as reported in the note, the master of the rolls said that under Houlder Line v. Griffin (Eng.) a ship in a dock is not a factory. Fireman engaged in such ordinary work as sponging the tubes of a steamship's boiler, while it is lying in a dock, cannot recover on the ground that the ship was at the time a "factory." Coyne v. Glasgow S. Coasters Co. (1906-1907) Sc. Sess. Cas. (Scot.) 112. Lord Kyllichy said: "It is the dock which, under the act, is the factory. The ship comes in only when it becomes constructively part of the dock. Now the repairs here in question involved no use of the docks at all. They had no connection with the dock or the ship's presence in the dock." Lord Atwell said: "I think that it was incumbent upon the applicant to show that this dock was factory for one of two reasons: either that it was then being occupied for the purpose of loading or unloading, and that the accident occurred in the course of loading or unloading the particular ship; or otherwise, that it was being used for proper factory work, such as repairing the ship or the ship's machinery; and repairing in the proper sense of the term; viz., executing such repairs as are not merely incidental to every voyage on which the ship is engaged, but such as might be let out to a proper contractor or engineer to perform." 75 In M'Ewan v. Perth (1905) 7 Sc. Sess. 78 79 large quantities, and in which consequently the dangers incident to the handling of goods in bulk or in large quantities might naturally arise." 77 A place used in connection with a wholesale business for the purpose of storing goods is a warehouse; a room or a cellar under a shop maintained by a builder and contractor, which is stored with building material, is a warehouse.7 But if the storage of goods is merely ancillary to a retail business, the place where they are stored is held not to be a warehouse.80 The court of appeal has held, however, that there is no absolute rule of law that a store attached to retail business cannot be a warehouse, and the case was sent back to the county court judge because he had so held.81 Cas. 5th series (Scot.) 714, the term “warehouse" was construed as meaning only a warehouse connected with shipping work. A warehouse to be within the act must be connected with docks and quays. Smith v. Turner (1901; C. C.) 3 W. C. C. (Eng.) 143. 76 Willmott v. Paton [1902] 1 K. B. (Eng.) 237, 71 L. J. K. B. N. S. 1, 66 J. P. 197, 50 Week. Rep. 148, 85 L. T. N. S. 569, 18 Times L. R. 48, 4 W. C. C. 65 (holding that a yard or depot 5 acres in extent, and having sheds upon it, which was used for storing old iron, is a warehouse). 77 Colvine v. Anderson & Gibb (1902) 5 Sc. Sess. Cas. 5th series, 255, 40 Scot. L. R. 231, 10 Scot. L. T. 482. 78 Green v. Britten [1904] 1 K. B. (Eng.) 350, 73 L. J. K. B. N. S. 126, 68 J. P. 139, 52 Week. Rep. 198, 89 L. T. N. S. 713, 20 Times L. R. 116, 6 W. C. C. 82. 79 Evans v. Wilson (1907; C. C.) 124 L. T. Jo. (Eng.) 201, 1 B. W. C. C. 148. 80 A loft used for the storage of goods sold by a co-operative store in the ordinary course of business, storage being merely ancillary to the business carried on, is not a warehouse. Hunt v. Grantham Co-op. Soc. (1904; C. C.) 112 L. T. N. S. (Eng.) 364, 4 W. C. C. 67. Where the storage of goods is merely ancillary to the general business of a retail store, it is not a warehouse merely because goods are stored on the premises. Burr v. William Whiteley (1902) 19 Times L. R. (Eng.) 117, 5 W. C. C. 102. To the same effect was the decision in Colvine v. Anderson & Gibb (1902) 5 Sc. Sess. Cas. 5th series, 255, 40 Scot. L. R. 231, 10 Scot. L. T. 482, in which Lord Kinross said: "While it may be difficult to define 'warehouse,' I am of opinion that, as used in the act of 1897, it involves the idea of a place normally of considerable size, mainly used for the storage of goods in bulk or in large quantities, and in which consequently the dangers incident to the handling of the goods in bulk or in larger quantities might naturally arise." 81 Moreton v. Reeve [1907] 2 K. B. (Eng.), An open space is not a warehouse sim-, are sufficiently comprehensive to cover ply because it is used for the storage of the work of replacing the iron beams goods.82 And an uncovered railroad across a hatchway after the actual stowgoods yard is not a warehouse.83 ing of the goods has been completed.86 But they are not applicable to a steam winch on a ship's deck, which is being used for the purpose of loading goods from a lighter; nor to gangway doors through which cargo is taken into or discharged from a ship; 88 nor to a staging outside a ship, on which the servant was standing to screw up the iron doors of a ship after the loading was completed.89 A transit shed on a dock, taken by the postoffice for the storage of parcels during the Christmas season, is a factory, so that an employee of a firm of carriers employed by the postoffice, who is injured while at work therein, is within the act.83a A large stabling and yard at which 600 or 700 horses were stabled, and 150 omnibuses were put up for the night, where 3 tons of fodder were usually kept, and where there was a farrier's forge and shop for shoeing the horses, in which was kept a considerable quantity of horseshoes to be used in shoeing the horses, is not a warehouse.84 87 Under the factory act of 1895, with reference to machinery for loading and unloading a vessel, there were no words to include a case where a vessel moored in a river was unloading her cargo into lighters. But the factory act of 1901 has been held to be broad enough to in 11. Machinery used in the process of clude such an operation.90 Under this loading or unloading a ship." -These words import either a landing of something from a ship, or a loading on the ship from the land.85 They 401, 76 L. J. K. B. N. S. 850, 97 L. T. N. S. 63, 9 W. C. C. 72. In this case the respondent was a furniture dealer having two shops in different streets and also a building consisting of two stories, which he called a warehouse, in which he kept old furniture which he repaired, and also a quantity of new furniture; the respondent also kept materials for repairs in the building in large quantities. The court of appeal said that such a building might be found to be warehouse. 82 An uncovered yard used to store material for the repair of roads and drains and for other works executed by the owners is not a warehouse in the ordinary sense of the word, and therefore not a factory within the meaning of the workmen's compensation act 1897. M'Ewan v. Perth (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 714. So, a dumping ground is not a warehouse or factory, even if some of the old material is sometimes sold. Buckingham v. Fulham (1905) 69 J. P. (Eng.) 297, 53 Week. Rep. 628, 21 Times L. R. 511, 3 L. G. R. 926, 7 W. C. C. 79. 83 Tench v. Fish (1901; C. C.) 3 W. C. C. (Eng.) 140. 83a Fogarty v. Wallis [1903] 2 I. R. (Ir.) 522. 84 Johnson v. London General Omnibus Co. (1905; C. C.) 7 W. C. C. (Eng.) 83. 85 Where a ship was unloading in a dock by means of a crane on the quay hired by her owners, and a workman employed by them in unloading her was killed by the explosion of a case of percussion caps which he was placing in a basket attached to the chain of a crane for the purpose of its being hoisted out of the ship onto the quay, it was held that the accident arose out of, and in the course of, the workman's decision it would seem that any amendments to the factory act subsequent to 1906 were automatically made portions of the compensation act of that year. employment on or about machinery used in the process of unloading to a quay within the meaning of the act of 1897. Woodham v. Atlantic Transport Co. [1899] 1 Q. B. (Eng.) 15, 68 L. J. Q. B. N. S. 17, 79 L. T. N. S. 395, 47 Week. Rep. 105, 15 Times L. R. 51, 1 W. C. C. 52. This decision was followed in another, where a workman was killed while engaged in making up sets of bags to be hoisted from the hold of a ship by means of a crane operated by a man on the quay. Lawson v. Atlantic Transport Co. (1900) 82 L. T. N. S. (Eng.) 77, 16 Times L. R. 181, 2 W. C. C. 53. 86 Stuart v. Nixon [1901] A. C. (Eng.) 79, 70 L. J. Q. B. N. S. 170, 65 J. P. 388, 49 Week. Rep. 636, 84 L. T. N. S. 65, 17 Times L. R. 156, 3 W. C. C. 1. 87 Hennessey v. McCabe [1900] 1 Q. B. (Eng.) 491, 2 W. C. C. 80. Collins, J., said: "The statute is so drawn that it is difficult to discover what it really means, and it is indeed not easy to deal with it upon the broad ground of common sense." 88 Medd v. MacIver (1899) 15 Times L. R. (Eng.) 364, 1 W. C. C. 76. 89 Durrie v. Warren (1899) 15 Times L. R. (Eng.) 365, 1 W. C. C. 78. 90 Stevens v. General Steam Nav. Co. [1903] 1 K. B. (Eng.) 890, 72 L. J. K. B. N. S. 417, 67 J. P. 415, 51 Week. Rep. 578, 88 L. T. N. S. 542, 19 Times L. R. 418, 5 W. C. C. 95. It was there held that the modification mentioned in the interpretation act 1889 includes additions; and that consequently, in the definition of a "factory" in the workmen's compensation act 1897, the reference to the factory and workshop act 1895 must be construed as if it were a reference to the provisions of § 104 of the factory and workshop act 1901, so as |