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 any other proceedings had been taken, may be recovered by the employer from the "other person.' 142 An employer who has paid compensation for the death of an employee may recover indemnity from the person whose negligence caused the injury, although the dependent to whom the compensation was paid was an illegitimate daughter and would not of herself have any cause of action against the negligent person.43 In an action for indemnity under the act, notice under rule 19 must be served, although the defendant was a party to the compensation proceedings.47 But an employer may, if he chooses, bring an action for indemnity under § 6, subsec. 2, independently of the general rules as to third party procedure. 48 IX. Application to workmen in the sea service (8 7). 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. 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 which they have no concern." An employer who has paid compensation to a servant who was kicked by a horse belonging to a third person whose servant brought the horse upon the employer's premises and left it there unattended cannot recover contribution against the third person, since the negligence of such third person cannot be considered the natural and proximate cause of the injury to the employer's servant. Bradley v. Wallaces [1913] 3 K. B. (Eng.) 629, 82 L. J. K. B. N. S. 1074, 109 L. T. N. S. 281, 29 Times L. R. 705, [1913] W. N. 239, [1913] W. C. & Ins. Rep. 620, 6 B. W. C. C. 706. Driving a motor car with a defective hooter is not such negligence as to render the driver liable to indemnify the employer of the driver of a cart whose horse was frightened by the motor car, where the county court judge found that the absence of a proper hooter was not the cause of the accident. Lankester v. Miller-Hetherington (1910) 4 B. W. C. C. (Eng.) 80. 41 Page v. Burtwell [1908] 2 K. B. (Eng.) 758, 77 L. J. K. B. N. S. 1061, 99 L. T. N. S. 542, 125 L. T. Jo. 336, 1 B. W. C. C. 267. 42 Thompson v. North Eastern Marine Engineering Co. [1903] 1 K. B. (Eng.) 428, 72 L. J. K. B. N. S. 222, 88 L. T. N. S. 239, 19 Times L. R. 206. 43 Smith's Dock Co. v. Readhead [1912] 2 K. B. (Eng.) 323, 81 L. J. K. B. N. S. 808, 106 L. T. N. S. 843, 28 Times L. R. 397, [1912] W. C. Rep. 217, 5 B. W. C. C. 449. 44 The Rigel (1912; Adm.) 106 L. T. N. S. (Eng.) 648, [1912] W. N. 56, 28 Times L. R. 251, 12 Asp. Mar. L. Cas. 192, L. R. [1912] P. 99, 81 L. J. Prob. N. S. 86. 45 Great Northern R. Co. v. Whitehead (1902) 18 Times L. R. (Eng.) 816. 46 Cutsforth v. Johnson [1913] W. C. & Ins. Rep. (Eng.) 131, 6 B. W. C. C. 28, 108 L. T. N. S. 138. 47 Howard v. Driver (1903) 5 W. C. C. (Eng.) 153. Where both the undertakers and a contractor with them are made respondents to a claim for compensation under the act, and the contractor is found liable to pay compensation, a claim for indemnity cannot be made in the arbitration by the undertakers against the contractor under rule 23 (2) of the workmen's compensation rules 1898, unless the notice prescribed by rule 19 has been given. Appleby v. Horseley Co. [1899] 2 Q. B. (Eng.) 521, 80 L. T. N. S. 853, 68 L. J. Q. B. N. S. 892, 47 Week. Rep. 614, 15 Times L. R. 410. 48 Nettleingham v. Powell [1913] 3 K. B. (Eng.) 209, 82 L. J. K. B. N. S. 911, 108 L. T. N. S. 912, 29 Times L. R. 578, 57 Sol. Jo. 593, [1913] W. N. 182, [1913] W. C. & Ins. Rep. 424, 6 B. W. C. C. 479, affirming the divisional court [1913] 1 K. B. (Eng.) 113, [1912] W. N. 278, 82 L. J. K. B. N. S. 54, 108 L. T. N. S. 219, 29 Times L. R. 88, 6 B. W. C. C. 262. dom, subject to the following modifications: (a) The notice of accident and claim for compensation may, except where the person injured is the master, be served on the master of the ship as if he were the employer, but where the accident happened and the incapacity commenced on board the ship it shall not be necessary to give any notice of the accident; (b) In the case of the death of the master, seaman, or apprentice, the claim for compensation shall be made within six months after news of the death has been received by the claimant; (c) Where an injured master, seaman, or apprentice is discharged or left behind in a British possession or in a foreign country, deposition respecting the circumstances and nature of the injury may be taken by any judge or magistrate in the British possession, and by any British consular officer in the foreign country, and if so taken shall be transmitted by the person by whom they are taken to the board of trade, and such depositions or certified copies thereof shall, in any proceedings for enforcing the claim, be admissible in evidence as provided by §§ 691 and 695 of the merchant shipping act 1894, and those sections shall apply accordingly; (d) In the case of the death of a master, seaman, or apprentice, leaving no dependents, no compensation shall be payable, if the owner of the ship is, under the merchant shipping act 1894, liable to pay the expenses of burial; (e) The weekly payment shall not be payable in respect of the period during which the owner of the ship is, under the merchant shipping act 1894, as amended by any subsequent enactment, or otherwise, liable to defray the expenses of maintenance of the injured master, seaman, or apprentice; (f) Any sum payable by way of compensation by the owner of a ship under this act shall be paid in full, notwithstanding anything in § 503 of the mer 49 A firm of English contractors are not liable for compensation in respect to the death of a workman engaged in working for them in the island of Malta. Tomalin v. Pearson [1909] 2 K. B. (Eng.) 61, 78 L. J. K. B. N. S. 863, 100 L. T. N. S. 685, 25 Times L. R. 477, 2 B. W. C. C. 1. A workman lost in the Bay of Biscay while on his way to work at Teneriffe is not within the act. Schwartz v. India Rubber, Gutta Percha & Teleg. Works Co. [1912] 2 K. B. (Eng.) 299, [1912] W. N. 98, 28 Times L. R. 331, 81 L. J. K. B. N. S. 780, [1912] W. C. Rep. 190, 106 L. T. N. S. 706, 5 B. W. C. C. 390. chant shipping act 1894 (which relates to the limitation of a shipowner's liability in certain cases of loss of life, injury, or damage), but the limitation on the owner's liability imposed by that section shall apply to the amount recoverable by way of indemnity under the section of this act relating to remedies both against employer and stranger, as if the indemnity were damages for loss of life or personal injury; (g) Subsections (2) and (3) of § 174 of the merchant shipping act 1894 (which relates to the recovery of wages of seamen lost with their ship) shall apply as respects proceedings for the recovery of compensation by dependents of masters, seamen, and apprentices lost with their ships as they apply with respect to proceedings for the recovery of wages due to seamen and apprentices; and proceedings for the recovery of compensation shall in such a case be maintainable if the claim is made within eighteen months of the date at which the ship is deemed to have been lost with all hands: (2) This act shall not apply to such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross earnings of the working of such vessel. (3) This section shall extend to pilots to whom part X. of the merchant shipping act 1894 applies, as if a pilot when employed on any such ship as aforesaid were a seaman and a member of the crew. [This section is entirely new.] b. Proceedings under this section in general. The act has no application outside of the territorial limits of the United Kingdom except as it is expressly given in 7.49 And this section does not apply unless the ship is registered in the United Kingdom.50 The county court judge or other arbitrator has no jurisdiction over an application for compensation to an appren A charwoman taken by a French woman to do work for her in France, and injured while in that country, is not within the purview of the act, where there is nothing to show that the parties intendel their contract to be controlled by the lex loci contractus. Hicks v. Maxton (1907; C. C.) 124 L. T. Jo. (Eng.) 135, 1 B. W. C. C. 150. 50 Where the registration of ship was canceled a few days before she sailed, with a view to the sale of the ship to foreigners, a seaman who sailed on the ship is not within the protection of the act. Mortimer v. Wisker [1914] 3 K. B. (Eng.) 699, 30 compensation under the workmen's compensation act, where, by the ordinary rules of evidence, a seaman would be deemed to have been lost at sea with his ship.54 c. Persons in sea service excluded from 87 (87, subsec. 2). 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 injured seaman under the merchant shipping acts are not to be regarded in fixing compensation to be paid subsequently to the period during which the shipowner is liable under such acts for the expenses and maintenance of the injured seaman, as 7 (1) (e) is intended only to prevent the overlapping of the two acts.52 But if the shipowners are not liable for the hospital expenses paid by them, such expenses must be regarded in fixing the amount of compensation.53 The lapse of twelve months during which a ship has not been heard of (after which, under § 174 of the merchant shipping act 1894, she is deemed Times L. R. 592, [1914] W. N. 281, 137 L. T. Jo. 211, 83 L. J. K. B. N. S. 1245, 111 L. T. N. S. 732, 7 B. W. C. C. 494. It is clear that a member of the crew of a fishing vessel who receives as his remuneration a share of the profits of the catch is excluded from the provisions of the act.55 And notwithstanding he receives a regular weekly wage, he is not within the statute, if he also receives a share of the profits.56 But it has been held that in cases where the share of the cepted from the provisions of the act. Admiral Fishing Co. v. Robinson [1910] 1 K. B. (Eng.) 540, 79 L. J. K. B. N. S. 551, 102 L. T. N. S. 203, 26 Times L. R. 299, 54 Sol. Jo. 305, 3 B. W. C. C. 247. A "share-hand" on a trawler is not en 51 Turner v. The Haulwen [1915] W. C. & Ins. Rep. (Eng.) 50, 8 B. W. C. C. 242. This decision was based on the express terms of § 7 (1) (d), that the weekly pay-titled to compensation for injuries, although ments shall not be payable in respect of a period during which the owner of a ship is liable to defray the expense of the maintenance of the injured apprentice. 52 No deduction ought to be made from the amount of compensation to an injured seaman, in respect to the cost of maintenance in a foreign hospital, for which the shipowners are liable under the merchant shipping acts, where he asks for compensation only from the date of his return to England. McDermott v. The Tintoretto [1910] W. N. (Eng.) 274, 55 Sol. Jo. 124 [1911] A. C. 35, 80 L. J. K. B. N. S. 161, 103 L. T. N. S. 769, 27 Times L. R. 149, 11 Asp. Mar. L. Cas. 515, 4 B. W. C. C. 123, 48 Scot. L. R. 728. 53 Kempson v. The Moss Rose (1910) 4 B. W. C. C. (Eng.) 101. This decision was rendered prior to the decision of the House of Lords in McDermott v. The Tintoretto (Eng.), which reversed the court of appeal in the position which that court had taken. However, it would appear that the cases are fundamentally different, and that the decision of the House of Lords is not necessarily conclusive of the case at bar. 54 Maginn v. Carlingford Lough S. S. Co. (1909) 43 Ir. Law Times, 123. 55 The mate or first fisherman of a steamtrawler, whose sole remuneration was a certain proportion of the net balance of the gross price of the fish caught on a trip after deducting certain specified expenses, which did not include the wages of other members of the crew, is within the exception of § 7, subsec. 2. Gill v. Aberdeen Steam Trawling & Fishing Co. [1908] S. C. (Scot.) 328. An engineer upon a steam fishing boat, who was paid by a share in the profits upon a guaranty that they should never amount to less than a certain sum, is ex he was at the time engaged in work on one of the employer's steam cutters for which he received a fixed sum. Whelan V. Great Northern Steam Shipping Co. [1909] W. N. (Eng.) 135, 78 L. J. K. B. N. S. 860, 100 L. T. N. S. 913, 25 Times L. R. 619. Members of fishing crews, who receive sleeping room and provision and a certain wage per week, and a further share on the net profits of the voyage, are members of the crew of a fishing vessel remunerated by shares in the profit of the working of such vessel within § 7, subdiv. 2, of the act. Tindall v. Great Northern S. S. Fishing Co. (1912) 56 Sol. Jo. (Eng.) 720, 5 B. W. C. C. 667. 56 A boatswain on a steam fishing trawler, who was remunerated by maintenance and poundage, dependent upon the profits of the fishing expedition, is excluded from the act by § 7, subsec. 2, although he also received wages. Costello v. The Pigeon [1913] A. C. (Eng.) 407, 82 L. J. K. B. N. S. 873, 108 L. T. N. S. 927, 29 Times L. R. 595, 57 Sol. Jo. 609, [1913] W. N. 187, 50 Scot. L. R. 976, [1913] W. C. & Ins. Rep. 410, 6 B. W. C. C. 480. Members of a crew of a fishing vessel, who received in addition to their regular wages a share of stocker, which is money received from the sale of the tails of fish, roes, shellfish, etc., and liver money, which is a share of the proceeds of the livers cleaned from the fish, received a part of the gross earnings of the working of the vessel, and are not entitled to compensation for injuries under § 7, subdiv. 2, of the act. Burman v. Zodiac Steam Fishing Co. [1914] 3 K. B. (Eng.) 1039, 30 Times L. R. 651, 83 L. J. K. B. N. S. 1683, [1914] W. N. 329, 7 B. W. C. C. 767. If a member of the crew of a fishing ves. profits made by the fisherman is so small as to be negligible, the county court judge may find that he is not remunerated by a share of the gross profits, so as to be excluded from the statute.57 A flatboat engaged in carrying barrels of fish from the fishing station to vessels, and empty barrels back from the vessels to the station, is not a fishing boat within 7, subsec. 2, of the act, so as to exclude a workman on the boat who received a share of the profits from the protection of the statute.5 58 X. Compensation for industrial diseases ($ 8, Sched. III.). a. Text of act relative thereto. Section 8 (1) Where (i) the certifying surgeon appointed under the factory and workshop act 1901 for the district in which a workman is employed certifies that the workman is suffering from a disease mentioned in the third schedule to this act, and is thereby disabled from earning full wages at the work at which he was employed; or (ii) A workman is, in pursuance of any special rules or regulations made under the factory and workshop act 1901, suspended from his usual employment on account of having contracted any such disease; or (iii) The death of a workman is caused by any such disease; and the disease is due to the nature of any employsel, as a matter of fact, received a share of the money received from the sale of fish tails, roes, shellfish, etc., and of the liver money, he received a share of the gross earnings of the vessel, although in the running agreement such as is required by the merchants shipping act 1894, § 400, the column in the agreement headed "Share of fishing profits" was struck through in the space opposite the applicant's name to show that it did not apply to him. Ibid. A deck hand on board a steam trawler, who was paid weekly wages and received in addition a share of "stocker" or inedible fish, was "remunerated by a share in the profits or gross earnings," and his dependents are not entitled to compensation for his death, although at the time that the vessel was lost with all on board, no stocker had been taken. Stephenson v. Rossall Steam Fishing Co (1915) 84 L. J. K. B. N. S. (Eng.) 677, 112 L. T. N. S. 891, [1915] W. C. & Ins. Rep. 121, [1915] W. N. 70, 8 B. W. C. C. 209. em ment in which the workman was ployed at any time within the twelve months previous to the date of the disablement or suspension, whether under one or more employers, he or his dependents shall be entitled to compensation under this act as if the disease or such suspension as aforesaid were a personal injury by accident arising out of and in the course of that employment, subject to the following modifications: (a) The disablement or suspension shall be treated as the happening of the accident; (b) If it is proved that the workman has at the time of entering the employment wilfully and falsely represented himself in writing as not having previously suffered from the disease, compensation shall not be payable; (c) The compensation shall be recoverable from the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due: Provided that (i) The workman or his dependents, if so required, shall furnish that employer with such information as to the names and addresses of all the other employers who employed him in the employment during the said twelve months as he or they may possess, and, if such information is not furnished, or is not sufficient to enable that employer to take proceedings under the next following proviso, that employer upon proving that the disease was not contracted whilst the may nevertheless be inferred that he was to receive a share of the stocker or inedible fish, where, by the custom of the port, a deck hand was entitled to such shares, and the hand in question had received a share of the stocker upon the preceding trip. Ibid. The decision of the House of Lords in Costello v. The Pigeon (Eng.) must be considered as overruling the decision of the court of session, in which it was held that a member of a fishing crew who was paid a weekly wage and received in addition a certain sum per pound sterling on the gross value of the fish was not remunerated by a share of the profits or gross earnings, so as to be excluded from the benefits of the act. Colquhoun v. Woolfe [1912] S. C. 1190, 49 Scot. L. R. 911, [1912] W. C. Rep. 343. 57 Williams v. The Duncan [1914] 3 K. B. (Eng.) 1039, 30 Times L. R. 651, [1914] W. N. 329, 83 L. J. K. B. N. S. 1683, 7 B. W. C. C. 767; McCord v. The City of Liverpool [1914] 3 K. B. (Eng.) 1037, 30 Times L. R. 651, [1914] W. N. 329, 83 L. J. K. B. N. S. 1683, 7 B. W. C. C. 767. Although the written contract of employment of a deck hand on a fishing vessel 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. workman was in his employment shall not be liable to pay compensation; and (ii) If that employer alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer, and not whilst in his employment, he may join such other employer as a party to the arbitration; and if the allegation is proved, that other employer shall be the employer from whom the compensation is to be recoverable; and (iii) If the disease is of such a nature as to be contracted by a gradual process, any other employers who during the said twelve months employed the workman in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as, in default of agreement, may be determined in the arbitration under this act for settling the amount of the compensation; (d) The amount of the compensation shall be calculated with reference to the earnings of the workman under the employer from whom the compensation is recoverable; (e) The employer to whom notice of the death, disablement, or suspension is to be given shall be the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due, and the notice may be given notwithstanding that the workman has voluntarily left his employment. (f) If an employer or a workman is aggrieved by the action of a certifying or other surgeon in giving or refusing to give a certificate of disablement, or in suspending or refusing to suspend a workman for the purposes of this section, the matter shall, in accordance with regulations made by the Secretary of State, be referred to a medical referee, whose decision shall be final. (2) If the workman at or immediately before the date of the disablement or suspension was employed in any process mentioned in the second column of the third schedule to this act, and the disease contracted is the disease in the first column of that schedule set opposite the description of the process, the disease, except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment, shall be deemed to have been due to the nature of that employment, unless the employer proves the contrary. (3) The Secretary of State may make rules regulating the duties and fees of certifying and other surgeons (including dentists) under this section. (4) For the purpose of this section the date of disablement shall be such date as the certifying surgeon certifies as the date on which the disablement commenced, or, if he is unable to certify such a date, the date on which the certificate is given: Provided that (a) Where the medical referee allows an appeal against a refusal by a certifying surgeon to give a certificate of disablement, the date of disablement shall be such date as the medical referee may determine: (b) Where a workman dies without having obtained a certificate of disablement, or is at the time of death not in receipt of a weekly payment on account of disablement, it shall be the date of death. (5) In such cases, and subject to such conditions as the Secretary of State may direct, a medical practitioner appointed by the Secretary of State for the purpose shall have the powers and duties of a certifying surgeon under this section, and this section shall be construed accordingly. (6) The Secretary of State may make orders for extending the provisions of this section to other diseases and other processes, and to injuries due to the nature of any employment specified in the order, not being injuries by accident, either without modification or subject to such modifications as may be contained in the order. (7) Where, after inquiry held on the application of any employers or workmen engaged in any industry to which this section applies, it appears that a mutual trade insurance company or society for insuring against the risks under this section has been established for the industry, and that a majority of the employers engaged in that industry are insured against such risks in the company or society, and that the company or society consents, the Secretary of State may, by provisional order, require all employers in that industry to insure in the company or society upon such terms and under such conditions and subject to such exceptions as may be set forth in the order. Where such a company or society has been established, but is confined to employers in any particular locality or of any particular class, the Secretary of State may for the purposes of this provision treat the industry, as carried on by employers in that locality or of that class, as a separate industry. (8) A provisional order made under |