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1977 Sept. 23 [MALACHTOS, J] CHRISTOS PERICLEOUS, Plaintiff, v. 1. COMARINE LTD., 2. AMATHUS NAVIGATION CO. LTD., Defendants (Admiralty Action No. 70/75) 5 10 15 Master and servant—Safe system of work—Common law duty

  1. o)employer to provide a safe system of work—Nature of—Loading of ship—Loading system—Involving use of wooden frames —No fault or omission by employers, in the circumstances
  2. o)this case, in connection with the system of work used to the effect that it was not reasonably safe—Long established practice in the trade strong evidence of reasonableness. Admiralty—Ship—Loading of—Who is responsible for loading depends on the facts of each case—Defendant 2 paying stevedores and their dues for various funds—Notifying defendant 1 to get cargo ready for loading—Held to have been doing the loading as independent contractors or as agents for an undisclosed principal. Negligence—Loading of ship—Injury to quay porter through fallof axle affixed on sling—Negligence of winchman or hatchman or either of them. Costs—Unsuccessful action by employee against employer—No costs against plaintiff-employee. 20 25 Ship—Loading of—Safe system of work—Who is responsible for loading—Negligence—See, also, "Master and Servant"; "Admiralty"; "Negligence". The plaintiff was engaged as a quay porter for the loading of the ship "Esperos" with crates of citrus fruit. The crates were in lorries and they were piled up on a wooden frame. The loading was done by means of a winch and the plaintiff was standing on the lorry and assisting in the preparation of loads for the sung of the winch. Whilst the winch was coming 315 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER 1977 Sept. 23 CHRISTOS , PERICLEOUS v. COMARINE LTD. AND ANOTHER for a load and was over the lorry, one of the two axles, which was affixed at the end of one of the ropes of Chesling, knocked on top of the load of crates, whichwas about 5\ to 6 ft. high from the floor of the body of the lorry, got unhooked and fell and hit the plaintiff on the left bigtoe which was fractured. Hence the present action by the plaintiff for special and general damageswhich was instituted againstboth defendants, as his employers and/or as independent contractors and/or as agents for undisclosed principals. The winch of the ship was manned by a winchman who was instructed and guided by a hatchman. 10 The question of special and general damages was agreed at the amount of £525 on afull liability basis and /theissues that remained for consideration in the action were the following: (
  3. a)Whether the winchman and the hatchman or either of them were negligent. 15 (
  4. b)Whether the system of work was defective. (
  5. c)Whether the winchman and the hatchman were in the employment of defendants 1 or 2 or of both. The system of loading was provided by defendant 1; it in- 20 volved the use of wooden frames and was the one used by all loading agencies except one, which was using a system with iron frames. This latter system was better. Both ithe winchman and the hatchman were paid by defendants 2 and the person responsible for the loading on board 25 the said ship was their employee. Defendant 2 notified defendant 1 to get the cargo ready for loading and the stevedores employed for the loading were paid by defendants 2; theywere allocated by theGovernmentLabour Officer in their namewho also recorded them as responsible for the payment of the con- 3Q tributions to the various funds. Held,

(1)that the accident occurred due to the negligence of the winchman and the hatchman, or either of them, who were operating the winch of the ship at that time; and that no contributory negligencecan be attributed to the plaintiff.
(2)That the duty of the employer to prescribe a safe system of work is not an absolute duty but a relative one in that he isnot bound to provide a system as safe as it can be possi- 316 35 5 10 15 bly made, but reasonably safe; that in decidingwhat is reasonable, long established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in respect of reasonableness; that the system with wooden frames, used by defendant 1, has been in use for a long time by all the other agencies in Cyprus with only one exception of an agency whioh is using a system with iron frames; that though this latter system eliminates to a certain extent the dangers of the operation its use would cause unnecessary inconvenience and the time and expenses required for the operation will necessarily be increased; and that plaintiff failed to show any fault or omission on the part of his employers in connection with the system of work used to the effect that itwas not reasonably safe. 30
(3)That as towho isresponsible for the loading or unloading of a ship depends on the facts of .the particular case;that in the present case the fact that defendant 2notified defendant 1 to get the cargo ready for loading, that the allocation form for stevedores and the relevant receipt for payment of dues of the various funds were issued in their name without any protest on their part, that the person responsible for the loading on board the ship was their employee, and that no evidence was adduced on their part to disprove the allegation that the stevedores were paid by them, give sufficient indication that they were doing the loading either as independent contractors or as agents for an undisclosed principal; that, therefore, they are in law liable for the accident in question; and that, accordingly, judgment is given for the plaintiff against defendant 2 only in the sum of £525.- with costs and the action against defendant 1isdismissed. 35
(4)That taking into consideration that the plaintiff had to institute the present proceedings against defendant 1 as his employer, this Court is free to deviate from the general principle that costs follow the event and makes no oTder as to costs, asbetween plaintiff and defendant No.
  1. 20 25 Judgmentand orderforcosts asabove. Cases referred to: Caulfield v.PickupLtd., f!941] 2All E.R. 510; 40 Roberts v. DormanLong & Co. Ltd. [1953] 2 All E.R. 428 at p. 436; 317 1977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER 1977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER GeneralCleaning Contractors Ltd., v. Christmas[1953] A.C.
  2. Admiralty Action. Admiralty action whereby plaintiff claimed special and general damages against the defendants, as his employers and/or as independent contractors and/or as agents for undisclosed.principals, for injuries sustained by him in a loading operation. 5 A. Anastassiades, for the plaintiff. Fr. Saveriades, for defendant No.
  3. 10 P. Schizas, for defendant No.
  4. Cur. adv. vult. The following judgment was delivered by:,.MALACHTOS, J.: The plaintiff in this admiralty action is a port worker in Limassol, and the two defendants are 15 shipping agencies carrying on business also in Limassol. On the 11th January, 1975 the plaintiff while being engaged as a quay porter in loading the ship "ESPEROS", which was anchored along the quay at the new port of Limassol, met with an accident as a result of which he sus- 20 tained personal injuries. He instituted the present proceedings claiming special and general damages against both defendants as his employers and/or as independent contractors and/or as agentsfor undisclosed principals. On the 1.3.77, when this case came on for hearing, the 25 question of special and general damages was agreed for the amount of £.525.- on a full liability basis and so the only remaining issue was the question of liability. As regards this question the two defendants in their separate defences deny liability and allege that the accident was 30 due to the negligence and/or contributory negligence of the plaintiff himself. Furthermore defendant No. 2 alleges that at no time was concerned or had to do in any way or capacity whatsoever with any of the acts or events or transactions or 35 with the accident in question. As to how the accident occurred the plaintiff gave evi318 dence and called one witness, namely, Costas Christodoulou, a fellow worker, who was at the time working with him. 5 10 15 20 25 30 The plaintiff in giving evidence stated that he is 41 years ot age and he has been a port worker since
  5. On the Πtil January, i975, he was employed by defen­ dant No. 1 at the new port of Limassol, in loading citrus fruit on the ship "ESPEROS".He started work at 5 p.m. The lorries with crates of citrus fruit were arriving at the port next to the ship and he was working on the said lor­ ries with two other quay porters. The crates on the lorries were piled up on a wooden frame (telaro) which at its four corners had holes. Each lorry was carrying about 8 loads of these wooden frames. Their job was to insert two iron axles through theholes of thewooden frame from one corner to the other. These axles at their two ends, which were protruding as being longer than the wooden frame, had also holes. Through the holes of the axles they were inserting the hooks of the sling, which sling consisted of four ropes, each rope having a hook at the one end andat the otherend all four ropes were joined inonehook,which they hooked on the hook of the winch of the ship and the load was then lifted and carried into the ship's hold. The wooden frame remained in the hold and the sling with the two axles, after being disconnected, from the load by the stevedores, were returning back for the repetition of the same process. The two axles when returning back to the lorry were hooked only from their one end by the hook of one of the ropes of the sling. In the meantime, in view of the fact that there were four axles available, the men on the lorry were preparing another load by inserting the two axles in another wooden frame awaiting for the sling to come back in order to hookit. According always to the evidence of the plaintiff, this job was repeated till 8.30 p.m. of the same day when the accident happened. At that time when the winch was re­ turning for anotherload and was over thelorry, one of the two axles which was affixed at the end of one of the ropes of thesling knocked on topof theload of crates which was 40 about 5H o 6 ft. high from the floor of the body of the lorry, got unhooked and fell and hit him on the left big toe which was fractured. From there he was transported to the Limassol hospital for treatment. The winch of the 35 319 1977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER X977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER ship is manned by the winchman. On that day the winchman was a certain Miltiades Soloinou, who was paid by defendant
  6. A certain Costas Avgousti was the hatchman. Hewasalsoin theserviceof defendant 2.Thehatchman is the man who instructs and guides the winchman. 5 This system of loading wasprovided by defendant 1.Another systemistouseironframes instead of woodenones. The difference between the two is that the iron frames have no axles and have got rings at their four corners in which the four hooks of the ropes of the sling are hooked 10 and sowhen thewinchisreturning back, returns onlywith the four ropes and nothing else.This system of iron floors is better. The only one who uses this system is a certain Giovanni. To the same or similar effect is the evidence of Costas 15 Christodoulou, the fellow worker who at the time of the accidentwasonthequay. I must say from now that as to how this accident occurred I accept theevidence of theplaintiff, which issupported by the evidence of his fellow worker P.W.2, name- 20 ly, Costas Christodoulou, whose evidence I also accept as true and correct. In fact, their evidence stands uncontradicted onthisissue. It can be reasonably inferred from the evidence, as I have accepted it, that the accident occurred due to the 25 negligence of the winchman and the hatchman, or either of them, who wereoperating the winch of the ship at that time. No contributory negligence can be attributed to the plaintiff. Evidence was adduced on behalf of the plaintiff in or- 30 der to render defendant No. 1 liable for the accident in that the sysem of work, which was admittedly provided bythesaiddefendant, wasdefective in that another system of using iron frames instead of wooden ones is better, as no axles are used, and that it wc?uld be safer if forklifts 35 wereused in order to unload the loads from the lorrieson to the quay, before preparing the slingfor lifting them up bythewinchtotheship'shold. The duty of the employer to provide a safe system of work is a common lawduty and/or a statutory one. 320 4( 5 10 15 20 25 30 35 40 When the operation tobe carriad out is one specifically dealt with by statute or statutory regulation non compliance with the statutory requirements renders the employer liablefor negligence. Compliance of the employer with the statutory requirement is evidence, although not conclusive, that the common law duty has been fulfilled. (Caulfield v. Pickup Ltd. [1941] 2 All E.R. 510 and Roberts v. Dorman Long & Co. Ltd. [1953] 2 All E.R. 428 at page 436). However, in the present case we are only concerned with the common law duty of the employer to provide a safe system of work. The duty of theemployer to prescribe a safe system of work is not an absolute duty but a relative one in that he is not bound to provide a system as safe as it can be possibly made, but'reasonably safe. The precautions taken must be proportionate to the risk involved. Where some commercial necessity requires that an employer will expose a workman to some risks, he may avoid liability for his failure to guard against such dangers. His duty is to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation. In deciding what is reasonable, long established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in respect of reasonableness. In the case of GeneralCleaning Contractors Ltd. v. Christmas [1953] A.C. 180, a House of Lords case, Lord Tucker at page 194 had this to say: "This form of action is frequently spoken of as being based on 'a failure to provide a safe system of work', but this language ismisleading since it omits what is an essential element in the cause of action, viz. negligence. Window cleaning is obviously a hazardous operation and—except in the case of the absolute obligations imposed in certain circumstances under the Factory Acts—there is no absolute obligation upon employers to device a system for their employees which will be free of risk. Their only duty is to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation. In deciding what is reasonable, long-established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in support of reasonableness. 321 1977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER 1977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER It was said by GoddardL.J. in the Court of Ap­ peal andby Viscount Simonin this Housein thecase of Colfar v. Coggins ά Griffith (Liverpool) Ld. [1943] 76 Ll.L. Rep. 1, 4 (C.A.); [1945] A.C. 197 203 that in these cases theplaintiff must allege and 5 prove specifically what is thedefect in the system of which he complains. In other words, it is not suffi­ cient that the system adopted was in fact unsafe, he must show something which could reasonably have been done or omitted which would have made the 10 system reasonably safe and that this failure was the causeof his accident". In thepresentcase it is in evidencethatthesystem with wooden frames, used by defendant 1, has been in use for a long time by all the other agencies in Cyprus with only 15 one exception thatof Giovanniwho is using a system with iron frames. No doubt the use of forklifts to unload the loads from thelorries on to thequay before preparingthe sling for lifting them up to the ship's hold, eliminates to an extent the dangers of the operation. This, however, 20 would cause unnecessary inconvenience and the timeand expenses required for the operationwill necessarily bein­ creased. On the evidence adduced the plaintiff failed to show anyfault or omission onthepart of his employersin connection with thesystem of work used to theeffect that 25 itwas notreasonably safe. The next and last point to be considered is as to who was the employer of the winchman and the hatchmanin this case. Port workers, whether stevedores or quay porters, are 30 engaged by the various agencies and merchantsinLimas­ sol throughtheLabour Office. Andreas Ioannides, an employee in the office of defen­ dant 1ingiving evidence for defendant 1asD.W.I, stated that on the11th January. 1975, hewas notified by defen- 35 dant 2 company to arrange the cargo for loading. Upon that he instructed a certain Diogenis Christodoulou,the employee of defendant 1 responsible for the loading of cargo at the quay, for the necessary arrangements. The loading of a ship is always doneby theagents whoengage 40 the stevedores. The quay porters are engaged by the mer­ chants ortheirrepresentative. 322 This witness also stated that only the plaintiff, together with two other quay porters were employed by defendant
  7. The responsibility of defendant 1 was to bring-the cargo along side the saidship. i977 Sept 23 " CHRISTOS PERICLEOUS V. 5 Heraclis Nicolaides, an Assistant Labour Officer, in COMARINE LTD charge for the allocation of port workers in Limassol, in AND ANOTHER giving evidence as D.W.2 stated that an application for stevedores for overtime work was made on 11.1.75 for the ship "Esperos".This application, which has been produced 10 as exhibit 1, is signed by the Scandinavian Near East Navigation Co. Ltd., SNEAL, (Cyprus) Ltd., as agents. This company has no registered office in Limassol and is housed in the office of defendant
  8. The object of an application of this kind is to secure payments of various con15 tributions of employers of port workers to the various funds, such as, Social Insurance and Termination of Employment. According to the evidence of this witness, in order to proceed with the allocation of port workers, the confirmation of the foreman of the company applying for 20 is necessary. In the present case, upon receiving confirmation of a certain Kyriakos Erodotou, whom the witness considered as the foreman of defendant 2, he recorded defendant 2 as responsible for the payment of the various contributions 25 and allocated eleven stevedores in its name. A photo copy of this allocation form, which was produced as exhibit 2, contains the name of defendant 2 as the employer and the names of the 11 stevedores, including the winchman and the hatchman. The name of the said Kyriakos Erodotou 30 appears also on the said form. A similar photo copy of this form was also produced by this witness where defendant 1 appears as the employer of threequay porters, including the plaintiff. This witness also stated that the contributions were paid 35 by defendant 2 and the relevant receipt was issued in its name. Diogenis Erodotou in giving evidence as D.W.3 for defendant 1stated that upon instructions from his employers he proceeded to the Labour Office and applied for three 40 quay porters. After securing the quay porters he went to 323 1977 Sept. 23 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER the ship wherehe met theperson responsiblefor theloading, acertain Claudios,whoisanemployee ofdefendant 2 and who indicated tohimthe hold of theshipin which the crates weretobeplaced. The only witness called by defendant 2 was Dinos Pa- 5 nayides, an officer of theCustoms andExciseDepartment, who produced a form (exhibit 4) dated 7.1.75 where it appears that the master of the ship "Esperos" appointed SNEAL (Cyprus)Ltd. ashisagents.Thisistheusual form which the master of a ship on arriving at a Cyprus port. ]0 usually is filling up in accordance with the Importation and Exportation by Sea Regulations 1968 and appoints an agent to make a report inwards as required by section 23of the Customs andExciseLaws 1967to 1973 andunder the terms given by theDirector of the Department of 15 Customs and Excise by virtue of section 45 of the said laws, the said agent is authorised by the master to act for him in all matters relating to the clearance outwards of the ship. Subsections 1and 2, therelevant parts of section 23of theLawreadasfollows: 20 "23.-(l) Report shallbemadeinsuchform andmanner and containing such particulars as the Director may direct of every ship and aircraft to which this section applies
(2)This section shall apply to every ship arriving 25 at port(
  1. a)from any place outside theRepublic;or (
  2. b)carrying any goods brought in that ship from some place outside the Republic and' notyetclearedonimportation". 30 The relevant parts of section 45 of the Law are also subsections 1and 2whichread: "45.
(1)Save aspermitted by the Director, no ship or aircraft shall depart from anyport or customs airport from which it commences, or atwhich it touches 35 during, a voyage or flight outside the Republic until clearance of the ship or aircraft for that departure hasbeen obtained from theproper officer at that port or airport.
(2)TheDirector maygivedirections324 40 5 " (
  1. a)as to theprocedure for obtaining clearance under this section; (
  2. b)asto thedocuments tobeproduced and the information to be furnished by any person applyingfor suchclearance". It isclear from thesesectionsof theLaw that theauthority of such agent is related to the preparation of the report inwards or clearance outwads of a ship and has nothing to do with any other business of the ship, such as 10 her loading or unloading. As towho is responsible for the loading or unloading of a ship depends on thefacts of the particular case.In thepresent case the fact that defendant 2 notified defendant-1 to get the cargo ready for loading, that exhibit2 and therelevant receiptfor payment of dues 15 of thevariousfunds wereissuedin their namewithout any protest on their part, that the person responsible for the loading onboard theshipwastheir employee, and that no evidencewasadduced on their part todisprove the allegation that the stevedores werepaid by them, give sufficient 20 indication that they weredoing theloading either asindependent contractors or as agents for an undisclosed principal and, therefore, they are inlawliablefor the accident in question. For these reasons judgment is given for the plaintiff 25 against defendant 2 only in the sum of £525.- withlegal interest at 4% per annum on the abovesum asfrom today to final payment, with costs tobe assessed by the Registrar. The Action against defendant 1 is dismissed. 30 Taking into consideration that the plaintiff had toinstitute the present proceedings against defendant 1 as his employer, I consider myself free todeviate from thegeneral principle that costs follow the event and to make no order astocosts,asbetween·plaintiff anddefendant No. 1. 35 Judgmentagainst defendant2in thesumof £525. Actionagainst defendant1 dismissed. Orderforcostsasaforesaid. 325 CHRISTOS PERICLEOUS v. COMARINE LTD. AND ANOTHER

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