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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sharpe v Carswell [1910] ScotCS CSIH_2 (08 February 1910)
Cite as: 1910 SC 391, [1910] ScotCS CSIH_2, 1910 1 SLT 80

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08 February 1910


Lord Ardwall.—I have come to the conclusion that this case was rightly decided by the Sheriff-substitute. It appears that the late Mr Sharpe was master and part owner to the extent of ten sixty-fourth shares of a small vessel called the “Dolphin.” So far as I can see, these two characters have nothing to do with each other. He was a part owner, and held and could dispose of his shares independently of his co-owners. But besides being the owner of ten shares, he was employed by the appellant to act as master of the vessel. That enables us to answer the first question, because, having regard to the terms of section 7 and section 13 of the Act of 1906, I cannot doubt that he was a “workman” within the meaning of the Act. It is stated in the case that he was employed by the appellant to act as master of the “Dolphin,” and accordingly I have no doubt that the first question must be answered in the affirmative.

I must, however, take notice of the argument for the appellant founded upon the statement that he as managing owner of the “Dolphin,” “and on behalf of the part owners of the ‘Dolphin,’” employed Mr Sharpe to act as master of that vessel; and it was argued that that brought the present case within the law laid down in the English case of Ellis v. Ellis & Company . This argument would be entitled to consideration if it could he shewn that the deceased, in respect of his being a part owner of the ship or otherwise, was in law a partner of the other part owners, but for the reasons I shall mention later on I do not think this was so.

Coming to the second question, and putting aside for the time the question of partnership, I am unable to see why the fact that Mr Sharpe was a part owner of the “Dolphin” should debar the respondents from claiming compensation from the appellant. It was not the part owners who empowered Mr Sharpe as master, but the appellant as is stated in the case, and that statement implies that he selected Mr Sharpe for the post of master, and that he was liable to him for payment of the fixed remuneration for his services as such. The fact that a managing owner is put in charge of a vessel and manages the same on behalf of the various part owners, of whom there may be any number up to sixty-four (see Merchant Shipping Act, 1894, section 5, subsection 2), and when so acting employs workmen in connection with the work of the ship, does not establish the relation of employer and employee for the purposes of this Act between each one and all of the registered owners on the one hand and the workman on the other; it would be absurd if it were to be held to do so, and shipping business could not be carried on on such a footing. This Division of the Court had occasion to consider and decide this matter recently in the case of Gorman v. Gibson & Company, and it was there held that it was the managing owners who were the employers of a stevedore's labourer, and not the registered owners of the vessel, in the loading of which the accident happened. Of course, ultimately, in an accounting for the profits and losses of the “Dolphin” for the last or the present year, the respondents, as part owners of that vessel will have to bear their share of the loss caused by the compensation found payable in the arbitration out of which this case arose, but that does not affect any of the questions now under consideration.

The third question is, “Whether Sharpe at the time of his death was (a) a partner of, or (b) a joint adventurer with, the appellant, or with the appellant and Captain Tait, in a course of trading carried on by means of the ‘Dolphin’?” When I try to discover in the stated case what was the course of trading, I cannot find it. There was no course of trading carried on apart from the use of the ship. The fact that Mr Sharpe generally found the cargo for the ship on her voyages from Dalbeattie to Liverpool, cannot be the foundation for a partnership or joint adventure between him and the other part owners, entitling them to bind each other in obligations undertaken in connection with the business of the vessel. Therefore, in attempting to argue that there was a partnership or joint adventure in this matter, the appellant is forced to rely solely on the fact that Mr Sharpe was an owner of shares in the ship along with the appellant and Captain

Tait. Now, it is quite settled that the fact of persons being co-owners of shares in a ship does not make them partners. They have little power as regards each other, and the majority cannot pledge the credit of the minority against their will, and if they disagree as to the management of the vessel, any of them may bring an action of sett and sale for disposal of their shares or of the whole vessel—in short, joint owners are not partners, but are separate individuals holding definite shares in a common subject, and where there are several of them, the subject in which they are all interested is in the ordinary case managed by a manager or managing owner, who within certain limits is empowered to act for them in the management of the ship, but this does not render them either partners or joint adventurers.

Accordingly, I am of opinion that Mr Sharpe was neither a partner nor a joint adventurer with the appellant or Mr Tait or one or other or both of them.

I accordingly think that the first question should be answered in the affirmative, and the second and third in the negative.

Lord Guthrie.—It looked at one time as if this case raised an important general question, namely, whether the decision in the English case of Ellis could be applied in Scotland, in view of the difference between the Scots and the English law of partnership. In Ellis there was a partnership; and it was held that one of the partners who had been employed by the partnership, and who had been injured while so employed, could not recover compensation from himself and the other partners under the Workmen's Compensation Act, on the ground that a person who is both employer and employed is not a workman in the sense of the Act. If that question arises in Scotland it will have to be carefully considered. In Scotland a firm is a separate persona, and it may be a question whether the reasoning of the Master of the Rolls, dealing with the case of an incorporated company, and holding that in that case a shareholder of a company doing work for the company is not in the position of employer and employed, does not equally apply in Scotland to the case of a proper partnership. But that question does not arise here, because I concur in the view that, on the facts of the present case, no partnership existed between the deceased and the other joint owners of the ship, and I think, therefore, that the questions should be answered as your Lordship proposes.

The Lord Justice-Clerk concurred.

LORD LOW and LORD DUNDAS were absent.

[1910] SC 391

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