RECOVERY OF EXPENSES INCURRED FOR RELIEF AND RETURN, ETC. (Hansard, 11 March 1970)

§ Mr. Fletcher-Cooke

I beg to move Amendment No. 56, in page 32, line 5, to leave out from 'employers' to end of line 9 and insert: 'If he proves that it was not a term of his employment that they were to be borne by him and that he was not left behind as a result of his own wrongful act or neglect'. This was a matter dealt with in Committee by my hon. Friend the Member for Portsmouth, Langstone (Mr. Ian Lloyd) relating to the burden of proof in the recovery of expenses incurred for relief and return of seamen left behind.

A burdensome obligation is placed on owners concerning the return of seamen left behind in foreign ports. I say "burdensome" because it is much more so than under the laws of virtually any other country in the world. I will not go into that matter since it was discussed very fully in Committee. It is clear that the Bill does nothing to relieve the owners in the way in which foreign governments relieve owners by accepting responsibility for this considerable expense.

The exception provided by Clause 65(1) should be made more workable. The Clause says Where any expenses are incurred in respect of any matter for which the employers of a seaman are required to make provision under section 63 of this Act, then if the expenses are incurred by the Board of Trade, or are incurred by the government of any country outside the United Kingdom and repaid to them on behalf of the Crown, the Board of Trade may recover them from the employers ". We do not like that but we accept it. But then paragraph (b) says: if the expenses are incurred by the seaman he may recover them from the employers unless they prove either that under the terms of his employment they were to be borne by 1493 him or that he would not have been left behind but for his own wrongful act or neglect. The owners have to prove that the man was left behind by his own wrongful act or neglect.

One has only to imagine the difficulties of proving that to see that the burden of proof is wrong. If a man is adrift in a foreign port, only he knows why. In the vast majority of cases the owners cannot possibly know why. If the man can show that it was not his fault, then the owners must pay. But it is a fundamental principle of the law of evidence that if something is within the knowledge of one person and without the knowledge of the other party, the burden of proof is on the person who knows and not upon the person who does not know.

This is an intolerable burden of proof to put on the owners. The burden of proof should be the other way round. If a seaman is left behind he should say and indeed should show that it is through no fault of his. The owners cannot possibly prove that it was his own wrongful act since only he knows what happened. The matter does not admit of very much expansion so I need say no more.

§ Mr. Goronwy Roberts

The hon. Member for Portsmouth, Langstone (Mr. Ian Lloyd) moved a similar Amendment in Committee which we discussed at considerable length. As I explained then, Clause 65(1)(b) deals with the rather unlikely event that, after a seaman who is left behind reports himself to the ship's agent or the proper officer and consequently, as we envisage the regulations, the employer's liability to maintain him commences, he is left to look after himself or told to do so and incurs expenses which, under Clause 63, are the prime responsibility of the employer.

In that case, given that the seaman can show that he has incurred the expenses and that they come within the regulations, the employer is liable to repay him. The employer may have a claim against the seaman for the expense of discharging his responsibility under Clause 63 if there has been a breach of contract or if the terms of employment provide for it.

1494 This is the employer's claim and in any proceedings for recovery by the seaman of his expenses, it should, in my view, be for the employer to prove his claim. The fact that the seaman has paid sums in circumstances in which, prima facie, they should be paid by the employer, should not, in my view, change the burden of proof in relation to claims under the seaman's contract or for breaches of it.

This is the position as we see it, and we think that it is just and equitable that the onus should be on the employer and not on the seaman in these circumstances. It was contended by hon. Members who supported the Amendment that, in effect, the matters to be proved were those peculiarly within the knowledge of the seaman. But this is not really so in all the cases covered by the Clause.

As the Clause now stands, they can escape liability if they can show that under the terms of his employment, these expenses were to be borne by him; in other words, if the contract provides accordingly. This can scarcely be a matter peculiarly within the seaman's knowledge. The other ground is if they can show that the seaman would not have been left behind but for his own wrongful act or omission. We do not envisage that a seaman will, under the regulations, be in a position to incur expenditure generally on his maintenance and repatriation without the knowledge or consent of his employer.

The kind of circumstances we have in mind are where an employer is aware of a seaman's whereabouts and position and fails to fulfil his obligations under the regulations. In my view, therefore, this is not really a point of great importance in practice and it would not impose an undue burden on the employer, although it may perhaps appear to do so in theory. I must, therefore, advise the House to reject the Amendment.