Drennan Iron of Scot November 25, 1920. 2ND DIV. gamated Society of Railway Servants, [1910] A.C. 87). (4) A member of a trade union, who has v. The been expelled from membership for failure to Associated comply with a rule of the trade union which the moulders Court regards as ultra vires, may be restored land against the resolution of the trade union expelling him (Osborne, [1911] 1 Ch. 540). On the other hand, (5) any legal proceeding at the instance of a member of the trade union which the Court may consider to be instituted with the object of enforcing an agreement for payment of a penalty to a trade union, and which is therefore excluded from the jurisdiction of the Courts of law by section 4 of the Act of 1871, will not be entertained even where the dispute relates to the construction of a rule (Rae, 1919 S.C. 426). The ratio on which that decision proceeds is that the interpretation of the rules of a trade union, where these rules are reasonably capable of two interpretations, is a matter which the parties have agreed to submit, and as to which the tribunal which they have constituted is final. or should not attend, a particular public meeting, and some of them had acted contrary to the views of the majority. It might be otherwise if the rules had prescribed that in all matters upon which the members of a shop took different views the minority should be bound by the vote of the majority present at a shop meeting, for then the pursuers would have submitted themselves to the jurisdiction claimed, and could only have challenged the proceedings on the ground that they were ultra vires and illegal. No such question arises where there is no rule of the trade union on the subject. I am not moved by the consideration on which the Lord Ordinary founds his judgment, namely, that the fine imposed on the pursuers cannot be enforced in a Court of law. It does not follow that it is not enforceable by the trade union as against them by the retention of benefits to which they would otherwise have been entitled, or by excluding them from membership. If such considerations should prevail, I cannot see how the House of Lords could have entertained an action to have it declared that a levy for political purposes was illegal, or could have restored to membership a member of a trade union who had been illegally expelled. The levy itself could not have been enforced by the Courts of law, and the method of enforcing by expulsion from membership, on the ground of failure to pay the levy, would on the reasoning of the Lord Ordinary, not have been challengeable in a Court of law. The House of Lords, however, has sustained the contrary view. I am therefore of opinion that the pursuers are entitled to decree in terms of the 1st and 2nd conclusions of the action. In the present case the pursuers do not ask us to construe any of the rules of the Association. They say there is no rule which subjects them to a fine or any other penalty because they have acted contrary to the vote of a majority of a meeting of members of a particular shop in which they happened to be engaged. They claim the right to fulfil their contract with their employer, without being subject to the dictation of a majority of their fellow-members in the shop in which they were employed. There is, admittedly, no express rule which deals with the case that has actually occurred. If there were, we might have to consider whether such a rule would be ultra vires of the particular union, In the view I have taken it is not necessary with regard to which it is not necessary to to consider the remaining conclusions. The pronounce any opinion. The defenders plead arbitration clause, such as it is, is only a part of that such a rule is to be implied from the terms the contract between a member and the trade of Rule 47, which provides "that the trade union, and compels the member only to submit committee in each district has the right to fine to arbitration such matters as may reasonably or exclude any member whom they may con- come within the rules by which the contract is sider working against the interests of the trade, defined. The alleged failure of the trade union, or failing to act as they may instruct.' I through their committees, to comply with their cannot think that such a matter as a man's rules which are made the subject of the remainfreedom of action in matters that concerning conclusions, opens up a different chapter in primarily himself can be left to implication. If this rule be taken literally, it would seem to imply that the failure to obey any instruction by the trade committee, whether connected or not with the objects of the union, might be made the ground of fine or exclusion from membership, in which case the rule would be ultra vires and illegal, but this rule has no application to the powers that are claimed by a majority of the members of any trade shop to control the actings of a minority, and yet it was for this, and this alone, that the pursuers were fined. The case would have been precisely the same as if it had been decided by a majority in the shop that the whole members should attend, "" this difficult department of law, which I do not think it is necessary to enter upon. The only sharp dispute as to the facts which appears in the pleadings, namely, whether there was an agreement before the vote was taken at the shop meeting that the minority should fall in with the decision of the majority, is, in my opinion, not relevant to be admitted to probation. If there was such an agreement it was one entirely outside of the rules, and whatever remedies the other parties to that agreement, to wit, the majority, may have, are entirely open to them. The individual persons who formed the majority are not parties to the present action. Lord Ormidale.-The Lord Ordinary has held that the present action cannot be sustained, on the ground that the pursuers have set forth no patrimonial injury arising from the proceedings taken against them by the defenders other than an unenforceable fine. Under the Trades Union Act of 1871, section 4, as he points out, no action will lie for the enforcement of a penalty. The imposition of the fine in question is therefore, so far as a Court of law is concerned, a brutum fulmen. It may be that the society has ways and means of its own of indirectly exacting payment. It may be that its rules make provision for further proceedings, by way of suspension or expulsion, being taken against recalcitrant members, and that such proceedings might result in such an invasion of the members' civil or patrimonial interests as the Courts would take cognisance of, but the pursuers do not aver that this is so, or that such proceedings must necessarily follow upon the refusal of a member to pay a fine. They state that they are aggrieved by the illegal and unfair manner in which they have been treated, and that they have been forced to raise the present proceedings to vindicate their rights; but the fine is the only thing they refer to on record of the nature of a pecuniary loss. In that state of the pleadings I agree with the conclusion arrived at by the Lord Ordinary, and think that the action must be dismissed. That is enough for the disposal of the case, but the interlocutor of the Lord Ordinary sustains not only the defenders' fourth plea in law -their plea to the relevancy of the action-but also their third plea in law, to the effect that the action is excluded by the arbitration clause, being Rule 8 of the defenders' society. I am not prepared to sustain that plea. 1. I agree with your Lordship that the provision in Rule 8 for the submission of differences to arbitration is subject to, and can only come into operation on, the implement of what is plainly a condition precedent in these terms: "That both parties bind themselves in writing to agree to the decision of the arbitration committee." That condition is not safeguarded by any sanction or compulsitor. It is left apparently to the option of the parties whether they will or will not so bind themselves in writing, and it is nowhere stated on record that either partymuch less that both parties-have in the present case come under any such obligation. There can therefore be no arbitration under Rule 8. 2. If the arbitration clause did apply, then the proper course would be to sist the present action until the determination of the reference, and not to dismiss it. 3. I am not prepared, as at present advised, to hold that, on what I may call the merits, the rule applies to the present dispute. I should like to add that, on the assumption that the pursuers were entitled to raise the Associated of November 25 1920. present action, and if the argument submitted 2Nd Div. by the parties on the question whether the Drennan Court's jurisdiction was excluded by the Trades The Union Act 1871, section 4, fell to be considered, fronI should be unable to decide that question with- moulders out enquiry into the facts about which the parties land. are still in dispute. I do not detail them, but I specially refer to the question whether there was any agreement come to by the members in the shop, prior to the vote being taken on the question of working or not working on 1st May, that the minority should be bound by the decision of the majority. The minutes also, while they are admitted by the parties, are by no means self explanatory, and their bearing and effect would be rendered much more intelligible and certain by evidence. I agree that our judgment should be in the form proposed by your Lordship. Counsel for Pursuers, MacRobert, K.C., A. R. Brown; Agents, Fyfe, Ireland & Co., W.S., for MacRobert, Son & Hutchison, Writers, Glasgow.Counsel for Defenders, Christie, K.C., Duffes; Agent, James G. Bryson, Solicitor, for MacAndrew & Galbraith, Writers, Glasgow. SHERIFF COURT. W. R. G. (Sheriff-Substitute Laing at Aberdeen.) 3. Rickaby v. The Aberdeen Steam Trawling and Fishing Company Limited. I. Reparation - Negligence - Liability - Ship in port II. Custom of port - Right to cross intervening ship where no direct access from quay - Member of crew crossing intervening ship accidentally falling through open hatch therein and sustaining injury - Harbour bye-law requiring masters of vessels to keep the hatches closed from sunset until sunrise unless there be a watchman on boardInfringement by master of intervening shipOwners of ship providing watchmen - Failure of watchmen to observe that storeroom hatch open -Held that the pursuer was entitled to cross intervening ship and that the owners thereof were liable for the accident because (a) the master had failed to carry out the bye-law or (b) the watchmen had failed to close the storeroom hatch. Ship-Custom of port-Custom of port of Aberdeen Averment that members of crews of vessels lying in the harbour were entitled to cross over intervening ships so as to reach their own ships where direct access from the quay was not possible-Evidence held sufficient to prove "a settled and established practice." Thomas James Rickaby, trawl fisherman, Aberdeen, brought an action against the Aberdeen Steam Trawling and Fishing Co. Ltd., Aberdeen, in respect of personal injuries which On 29th October 1920 the Sheriff-Substitute pronounced the following interlocutor: "Finds in fact (1) that the pursuer, who is fifty-five years of age and an experienced fisherman, was during December 1919 cook on board the steam trawler 'Auk' belonging to Aberdeen, and that the defenders are the owners of the steam trawler 'Strathcarron,' also belonging to Aberdeen; (2) that on 9th December 1919, the said steam trawler Auk' was lying stem on to the quay at Point Law, next to her being the steam trawler 'Evelyn Nutten,' and next to her again being the said steam trawler 'Strathcarron,' both of which were also lying stem on to the quay; (3) that as the suction-pipe of the 'Strathcarron' leading from the engine-room to the fish-room required renewal, the manager of the Strath Engineering Works belonging to the defenders instructed Mr A. W. Proctor, marine and house plumber, Shiprow, Aberdeen, to carry out the necessary work; (4) that for the execution of said repairs it was necessary to remove both the deck hatch and the floor hatch of the storeroom of the 'Strathcarron'; (5) that said repairs were entrusted by the said A. W. Proctor to two of his employees, who carried out the work between 1.30 P.M. and 8 P.M. on said 9th December; (6) that when the said A. W. Proctor's employees left the 'Strathcarron,' both at 5 P.M. when they went to their tea, and at 8 P.M. after they had completed the repairing of said suction-pipe, they left the storeroom deck hatch open; (7) that it is provided by bye-law 25 of the bye-laws made by the Aberdeen Harbour Commissioners in 1882, that 'The master of every vessel shall, immediately after sunset, unless where such vessel is at sunset in course of being loaded or discharged, close the hatches of such vessel, and keep the same closed until sunrise, unless there shall be a person on board during the night to guard the hatches so as to prevent accidents'; (8) that although the master of the 'Strathcarron' was aware that the repairs mentioned were to be executed, and that to enable them to be carried out, the storeroom deck hatch would require to be opened, he did not adopt the precaution prescribed in the foregoing bye-law; (9) that in connection with their vessels the defenders have appointed two watchmen, whose duty it is at night 'to look after everything generally,' and the storeroom hatch particularly'; (10) that between 5 P.M. on said 9th December and 5 A.M. on 10th December 1919, the two watchmen on duty, failed to observe that the deck hatch of the storeroom of the 'Strathcarron' was open and consequently failed to close it; (11) that between 5 A.M. and 7 A.M. on 10th December, the 'Strathcarron' was being coaled by the Aberdeen Coal Company, the coals being taken on board by means of planks laid from the quay on to the vessel's deck, across which they ran to a point a little past the storeroom deck hatch, -the planks at that point being only 2 or 3 feet from said hatch; (12) that at the time when the 'Strathcarron was being coaled, it was very dark, but to enable the coaling to be carried on, a light was placed on the vessel's lantern locker and another light on the quay, which, though sufficient to enable the work to be done 'did not show the storeroom hatch'; (13) that about 6 A.M. on 10th December, the pursuer, in accordance with orders to be on board the 'Auk' at 6 A.M., proceeded to the quay where the vessel was lying for the purpose of going aboard; (14) that when the pursuer reached the quay he found that it was not possible to board the 'Auk' direct from the quay as she was lying 5 or 6 feet off from the quay wall, and that the only means of access was to cross over the decks of the 'Strathcarron' and the 'Evelyn Nutten'; (15) that the pursuer thereupon proceeded to cross the plank leading from the quay on to the deck of the 'Strathcarron,' but when he reached the part of the plank nearest to the storeroom deck hatch, he stepped aside to let the coal man past and in doing so, caught his foot against the coaming of the said hatch, and overbalancing himself fell down into the storeroom; (16) that it is proved that it is the custom of the port of Aberdeen for members of the crews of vessels lying in the harbour to reach their own ships,— when direct access thereto from the quay is not possible, by crossing over intervening vessels ; (17) that in view of the position of the 'Auk' on the morning of 10th December 1919, and the impossibility of boarding her direct from the quay, the pursuer, in proceeding to go on board by means of crossing the 'Strathcarron' and the 'Evelyn Nutten,' took the course sanctioned by the custom of the port of Aberdeen; (18) that in consequence of said accident, the pursuer sustained injuries . . . . : finds in law (1) that in the circumstances set forth in the 13th, 14th, and 16th findings in fact, supra, the pursuer was entitled as matter of right to cross over the 'Strathcarron,' and the 'Evelyn Nutten' in order to reach the 'Auk'; (2) that the defenders are responsible for the accident which befell the pursuer and are liable in damages therefor in respect either (a) that the master of the 'Strathcarron' failed to carry out the provisions of bye-law No. 25 of the bye-laws made by the Aberdeen Harbour Commissioners in 1882, or (b) that the watchmen on duty between 5 P.M. and 5 A.M. on 9th and 10th December 1919, failed to close the storeroom deck hatch which was open between these hours; therefore repels the pleas in law for the defenders, and sustains the pleas in law for the pursuer; assesses the damages due by them to him at the sum of £200. . . COURT. V. The Trawling Co. Ltd. October 29, 1920. for a member of the crew of a vessel lying outside SHERIFF [The Sheriff-Substitute summarised the evi- Sheriff-Substitute Laing. -The circumstances disclosed in this case raise a question of some importance to members of crews whose vessels are berthed in the port of Aberdeen. On the night of 9th December 1919, the pursuer's vessel the "Auk" was lying at the quay at Point Law, the vessels next to her in order being the "Evelyn Nutten," and the "Strathcarron." In compliance with instructions, the pursuer arrived at Point Law about 6 o'clock on the morning of 10th December, and as his vessel, he says, was lying too far out from the quay to permit of direct access, he, in accordance with an alleged custom of the port, boarded the "Strathcarron" with a view to crossing over her and the All this uncontradicted and unanimous testiEvelyn Nutten" on to the deck of the "Auk." mony appears to me to prove that, to adopt the While crossing the deck of the "Strathcarron" language of Lord Blackburn referred to supra, he tripped and fell into the storeroom, the the practice alleged is a "settled and established deck hatch of which, he alleges, ought, in accord-practice" of such a nature as to ground or found ance with the port bye-laws, to have been closed during the dark hours of the night and early morning. There is no question but that the pursuer met with a somewhat serious accident in the manner stated, and that as a result, he sustained considerable injury which totally incapacitated him for a period of fully six months. The defence is that there is no such custom as that alleged, constituting a right on the part of the members of a vessel's crew to cross intervening vessels in order to reach their own, that as the pursuer could have reached the "Auk" direct, he crossed the "Strathcarron" at his own risk, and that in any event, the storeroom hatch was left open by persons for whom the defenders cannot be held responsible. There are three main questions of fact underlying the legal issues involved which may first be considered. In the first place, does there exist at the port of Aberdeen such a custom as that averred? On consideration of the evidence, I think that this question must be answered in the affirmative. It is a little difficult to estimate precisely the defenders' admission on record that, "It is admitted that under the circumstances condescended on, it is a practice in Aberdeen Harbour a custom. In other words, if I may use the [The Sheriff-Substitute reviewed the evidence I now come to consider the question, whether upon the facts as I have found them established by the evidence, the defenders are in law responsible for the accident which befell the pursuer. The answer to that question depends, it seems to me, upon (1) how far the proved custom referred to conferred upon the pursuer Aberdeen 1920. and the bye-law. It is not necessary to determine the question thus raised, for in my view, as in Captain Crombie's, the right of access is sanctioned by the custom of the port, but if it were necessary for a determination of the case, I should, I think, be prepared to agree with his construction and interpretation of the bye-law. On these grounds, then, it seems to me that the pursuer had an undoubted and unrestricted right to cross the deck of the "Strathcarron A "Strathcarron" in order to reach the "Auk." No doubt, in exercising that right, he subjected himself to certain risks, e.g. such risks as any one necessarily incurs when crossing the decks of vessels in the dark. But the risks which he was prepared to run clearly did not include dangers arising from neglect to implement harbour bye-laws or from negligence. As Captain Crombie well expressed it he would be going "at his own risk so far, but not if the other vessel is not covered up as it ought to be. He would be going at his own risk if he fell off the ship into the water; but not if he fell into an opening in the ship, as that opening should not have been there." SHERIFF a right to cross the "Strathcarron" in order to COURT. reach his own vessel, and (2) whether the negliRickaby gence of the defenders' employees was the cause v. The of the accident. That the pursuer had a right, Steam arising out of the custom referred to, to cross Trawling the "Strathcarron " in order to reach the "Auk" Fishing is, I think, clear. "Where a person is injured, Co. Ltd. while on the property of another, he must, in October 29, order to be successful shew how the owner came to be restricted in the use of his property by an obligation to look after the pursuer's safety. A person may be lawfully on the private property of another either by invitation express or implied or by mere permission. In the first case, a party injured by a danger on the proprietor's land has the same remedy as if he had been injured by a peril contiguous to a public place; in the latter case, the party takes all the risks of the place on himself." (See Glegg on Reparation, 2nd ed., p. 56.) In view of the universal custom of the port of Aberdeen as proved by the evidence, it seems to me that where, as here, the members of a crew cannot board their own vessel direct from the quay it must be held on the principles above explained that there is an implied invitation extended to them by the owners of vessels next the quay to use such vessels as a means of access. Such also appears to be the view of so experienced a harbour-master as Captain Crombie, and every consideration suggests that any other view would be incompatible with the full and proper use of the port. In short the situation is, I think, just this: The owners of trawlers recognising that every trawler cannot be berthed at the quayside, and that some must lie out in the basin, or for other reasons may be some distance from the quayside have impliedly agreed that the crews of vessels not at the quayside shall have a right of access to them across intervening vessels. This arrangement embodied in and sanctioned as a custom of the port, is, it seems to me both reasonable and expedient in the interests of all fishing vessels, and I do not doubt that bye-law | 25 of the harbour bye-laws quoted supra was framed for the purpose of affording a measure of protection to those using vessels as means of access to other vessels in accordance with the custom referred to. I have not so far referred to Captain Crombie's view that a right of access across vessels exists in virtue of the provisions of bye-law 33 of the harbour bye-laws, which provides that "The master of every vessel shall allow free passage across or over the deck of such vessel for discharging or loading the cargo of any other vessel or vessels lying further off from the quay, and for conveying to or from such other vessel or vessels all articles or things for ballasting, coaling, storing, or repairing the same "-his view being that such a bye-law expressed in such comprehensive terms necessarily includes free passage for any member of the crew of such vessels as those referred to in If the views expressed so far be sound, it follows, I think, that the defenders were bound to adopt the precautions prescribed by bye-law 25 of the harbour bye-laws so as to ensure so far as reasonably possible the safety of those using their vessel as a means of access from the quay. In that duty they failed, I think, on either of two grounds. In the first place bye-law 25 undoubtedly places the responsibility of seeing that the hatches are closed between sunset and sunrise on the master of the vessel, and such hatches must be closed unless there is a person on board to guard them so as to prevent accidents. In the implement of the obligations contained in this article, the master of the "Strathcarron" undoubtedly failed. He knew that repairs, necessitating the presence of plumbers in the storeroom, had to be made, and he should either have left a member of the crew on board to see that the storeroom deck hatch was closed after the repairs had been executed, or he should have specially warned the night watchmen to be on their guard. So far as Mr Proctor's men were concerned, their duty would appear to have ended when they had completed the repairs to the vessel,-it being thereafter the duty of the master to see that the hatches, necessarily open during the work of repair, were closed during the darkness of the night. I am not prepared, however, to press blame too hardly against the master of the " Strathcarron," for he may well have thought that he was justified in relying on the vigilance of the night watchmen. In view, however, of the terms of the 25th bye-law, it would appear to be clear that the responsibility for having the hatches closed overnight rested on him. But alternatively, and assuming that the |