so used with the knowledge and permission of those in command.15 Recent cases, however, hold that any means of access provided by the vessel and permitted by those in command to be used for that purpose are a part of the vessel, and that a sailor on his return from shore-leave reënters employment when he has actually reached such means of access.16 These cases proceed upon the same principles as those which, as has been seen, determine when the employ

15 McDonald v. S. S. Banana, [1908] 2 K. B. 926, 1 B. W. C. C. 185. Compare with this Robertson v. Allan Bros. & Co., 98 L. T. 821, 1 B. W. C. C. 172 (1908), decided by the same court three months earlier. In the first, where the claimant fell from a gangway leading from the dock to the ship and was drowned, compensation was refused. In the second, the claimant, who was drunk, came on board by way of a cargo skid which, while not the proper or provided means of access to the ship, was habitually so used by the crew. In stepping from the skid to the deck he slipped and tumbled into an unguarded hole in a hatch and was killed. Recovery was allowed. CozensHardy, M. R., who took part in both decisions, can see no inconsistency between the for in Robertson's case the man had got on board the vessel, while "in the Banana case the accident happened before he had got on board and although he was very close to the vessel, and on his way back, the result must be the same as if the accident had happened while he was on the road returning to the ship, or on the quay itself." Moore v. Manchester Liners, 2 B. W. C. C. 87, 89 (1908).

two cases

16 Moore v. Manchester Liners, [1909] 1 K. B. 417, 2 B. W. C. C. 87; [1910] A. C. 498, 3 B. W. C. C. 527. A sailor, if he has not reached the vessel itself, must be using some means of access to the vessel itself, owned or controlled by it and provided by it or permitted by it to be so used. If he is injured at any other point, whether it be a dock or quay or a gangway leading to another ship, which the sailor must cross to reach his own ship, no matter how near he may be to it and though the place where the accident occurs is one over which he must pass to reach it, compensation is denied. This is clearly shown by the two cases of Kitchenham v. S. S. Johannesburg, and Leach v. Oakley, Street & Co., argued together, [1911] 1 K. B. 523, 4 B. W. C. C. 91; [1911] A. C. 417, 4 B. W. C. C. 311, in the second of which compensation was granted to the dependents of the deceased who fell off the gangway between his own and another vessel and was drowned; in the first it was denied, the sailor having fallen from the dock before reaching the gangway of his ship. See also Hewitt v. S. S. Duchess, [1910] 1 K. B. 772, 3 B. W. C. C. 239 (aff'd in House of Lords, [1911] A. C. 671, 4 B. W. C. C. 317), and Kelly v. Foam Queen, 3 B. W. C. C. 113 (1910), in each of which the sailor fell off a public dock while or after hailing a boat to take him to his ship. In Kelly's case the boat hailed was a public one; in Hewitt's case it was his ship's boat. Had the sailor been injured while being rowed to his ship in a ship's boat it would seem that he would be entitled to recover, since such boat would seem to be as much a means of access to the ship as was the gangway in Moore's case. In Keyser v. Burdick & Co., 4 B. W. C. C. 87 (C. A., 1910), compensation was granted to a riveter injured while trying to leave a ship on which he had been working by sliding down a rope hanging from the side of the ship, which was the only means of leaving, the gangway having been removed, and in Kearon v. Kearon, 45 Ir. L. T. 96, 4 B. W. C. C. 435 (C. A., Ir., 1911), compensation was given to a sailor who tried to board his vessel on his return from leave by jumping from the dock to the boat some five feet away, there being no gangway or ladder and no attention having been paid to his hail.

ment of a workman entering his employer's premises begins; the vessel is regarded as the place at which the work is to be done, the ladders and gangways which are provided by the vessel and under its control are the equivalent of those parts of the premises provided by the master as an entrance to and exit from the place of work.17

Where a sailor has left the vessel without leave, he does not reënter the employment until he has actually returned to that part of the vessel where his duties require him to be.18 If he has been allowed leave, it is his duty to return, and his return is required by his contract of employment, which contemplates undoubtedly a certain amount of shore-leave, and is in the course of his duty under it. On the other hand, if he is absent without leave, his entire excursion is contrary to his duty, and as such is outside the course of the employment, and his return as part of the improper excursion is itself a violation of his duty. A person employed for a definite term of service, as a sailor or a domestic servant, who, having temporarily quitted his employer's services for purposes of his own, in returning adopts a means of access to the vessel or to his master's premises not provided by the master nor permitted by him, can no more recover than could a workman who, instead of using the entrance provided or permitted by the employer, goes to his work by some other way of his own choosing. This is especially true where the means of access selected is unnecessarily dangerous.19

17 In the most recent case, Fletcher Moulton, L. J., expressed the opinion that it is not necessary that the sailor should actually touch the ship or the means of access thereto provided by the master, but that it is enough if he has taken some specific step towards getting from the quay to the vessel, as if it were shown that in a dense fog he had fallen into the water while trying to find the gangway. So far the cases, whether dealing with the employment of a sailor upon a vessel or a workman employed to do work upon his master's premises, have made the workman's presence upon the employer's premises, or the means of access thereto provided by the master and required or allowed to be used by the servant, the decisive test as to the beginning of the employment; the test may be arbitrary, but it depends solely upon the external facts capable of exact proof. The dictum of Fletcher Moulton would destroy this test and substitute in place of it one purely subjective to the sailor depending upon what he intended to do and would introduce a multitude of difficult issues.

18 Hyndman v. Craig & Co., 45 Ir. L. T. 11, 4 B. W. C. C. 438 (1910).

19 Martin v. Fullerton & Co., [1908] Scot. Sess. Cas. 1030, 1 B. W. C. C. 168 (sailor hurt while attempting to jump from dock to vessel which he had left without leave); Watson v. Sherwood, 127 L. T. J. 86, 2 B. W. C. C. 462 (Birmingham Co. Ct., 1909) (club servant having overstayed his leave, hurt while attempting to reënter club through window). In both these cases it would seem that the servants probably selected dan

Whether the employment be for a long period or whether it be by the day, it is quite evident that a workman cannot be expected to be actually engaged in laboring all the time; there must necessarily be periods of rest; needs of nature must be satisfied. Where the employment is for an extended period, this is the more obviously true; there is no question that a domestic servant or a sailor is in the course of his employment not only while doing his service or standing watch, but also while eating, sleeping, and resting.20 But this is also true, though the employment is one for a limited number of hours. Here, again, the decisive test is that of place; the servant is held to be in the course of employment if, but only if, he is eating, drinking, resting, or otherwise satisfying the wants of nature upon his master's premises or at the place where the master's business is being carried on.21 So, where workmen working by the day are required to take their dinner upon the premises, especially where an eating place is provided for them, they are clearly in the course of their employment in so doing, whether they are paid for the time so occupied or not. So, too, where workmen are, during the hours for which they are paid and during which they are required to be upon the premises, satisfying their natural wants and so making themselves physically fit for their labor, or waiting while no work is ready for them.22 But it is not necessary that the workman's

gerous methods of getting back in order to avoid the detection of their unauthorized absence.

20 Since domestic servants and sailors are required to eat, sleep, and rest upon their master's premises or vessel, they are clearly within the course of their employment while so doing. "I have no doubt that the leisure of a sailor on board the vessel is as much in the course of his employment as active work." Fletcher Moulton, L. J., in Marshall v. S. S. Wild Rose, [1909] 2 K. B. 46, 49.

21 If the servant during his working hours, even with his master's permission, leaves the latter's premises for the purpose of satisfying the wants of nature, the master is not liable, though he has not provided facilities upon his premises for their satisfaction. Gilbert v. S. S. Nizam, [1910] 2 K. B. 555, 3 B. W. C. C. 455 (engineer of vessel in dry dock going to his home for dinner); McKrill v. Howard & Jones, 2 B. W. C. C. 460 (London Co. Ct., 1909) (solicitor's clerk taking walk in street during lunch hour); Cogdon v. Gas Co., 1 B. W. C. C. 156 (Sunderland Co. Ct., 1907) (plumber going to house of relation for a necessary purpose). But see Nelson v. Belfast Corp., 42 Ir. L. T. 223, 1 B. W. C. C. 158 (C. A., Ir., 1908).

22 Earnshaw v. Railway, 115 L. T. J. 89, 5 W. C. C. 28 (Halifax Co. Ct., 1903). See also Henderson v. Glasgow, 2 Fraser 1127 (Scot. Ct. Sess., 1900) (a carter injured while waiting for his cart to be emptied by his fellow workmen), and Keenan v. Flemington Coal Co., 5 Fraser 164 (Scot. Ct. Sess., 1903) (miner injured while getting a drink of water).

presence should be required — it is enough that he is permitted by the master to remain upon the premises for this purpose; and so a workman allowed but not required to take dinner upon his master's premises was held to be within the course of employment though no wages were paid during the dinner hour and though he might have taken his dinner where he pleased.23

But there are two requirements: First, what the servants are doing must be ancillary to the employment, must be a necessary incident of it, the doing of something without which the workman could not properly carry on his work because of physical unfitness, or at least something which is so commonly done by workmen that the doing of it must be in contemplation by the employer when he engages them. Secondly, whether the servant is doing something "ancillary" to his employment or is on his way to or from it, he must not unnecessarily increase the risk of injury to himself and so the risk of liability to his master beyond that contemplated in his contract of employment. He may not choose an unnecessarily dangerous place for the doing of such things, nor may he do them in an unnecessarily dangerous way.24 And so he must not choose a needlessly dangerous path or means of transportation to or from his work. It is not necessary that he is using a place or path provided by his master.25 It is enough that it is customarily used for these purposes by the workmen,26 and that its use is not specifically forbidden.27

23 Blovelt v. Sawyer, [1904] 1 K. B. 271, 6 W. C. C. 16.

24 It is upon this ground that Marshall v. S. S. Wild Rose, [1909] 2 K. B. 46, 2 B. W. C. C. 76; [1910] A. C. 486, 3 B. W. C. C. 514, seems to have been decided. The taking of air on a hot night is just as ancillary to an engineer's work as taking food or rest. It, however, appeared from the circumstances that he had probably chosen an unnecessarily dangerous place for the purpose.

25 In Elliott v. Rex, The Times, Jan. 30, 1904, 6 W. C. C. 27 (Plymouth Co. Ct.), the place where the injury was received was one provided by the master.

26 Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 539, 2 B. W. C. C. 42; McKee v. Great Northern Ry., 42 Ir. L. T. 132, 1 B. W. C. C. 165 (C. A., Ir., 1908), where it seems to be held that a general order that the servants are not to use a short cut is immaterial, if the employer knew that a large number of workmen were in the habit of using it.

27 In Barnes v. The Nunnery Coal Company, [1910] W. N. 248, 4 B. W. C. C. 43, it was held, Fletcher Moulton, L. J., dissenting, that a boy who chose a dangerous and forbidden method of getting to his working place could not recover. Acc. Kane v. Merry & Cunninghame, 48 Scot. L. Rep. 430, 4 B. W. C. C. 379 (Ct. Sess., 1911). Cf. McKee v. Great Northern Ry., supra. In these cases the dangerous way was selected to save the workman trouble.

But he must not choose a place 28 or path,29 however convenient to him, which involves dangers greater in extent or different in kind from those incidental to the place or path provided or permitted.

In every case in which a workman, injured while coming or going to work or while engaged in doing something "ancillary" to his employment, has been given compensation, the injury has been in whole or in part one due to the nature or condition of the premises or vessel, or to some operation of the employer's business thereon, -in a word, because of some danger incident and peculiar to the place where he is required or entitled by virtue of his contract of employment to be for these purposes.30 In no case has recovery

28 Brice v. Lloyd, Ltd., [1909] 2 K. B. 804, 2 B. W. C. C. 26. A workman for the sake of warmth took his supper on top of a tank full of boiling water. "Employment," says Farwell, L. J., "extends to all things which a workman is entitled by the contract of employment expressly or impliedly to do. Thus he is entitled to pass to and from the premises" [place of work?]" and to take his meals on the premises; but he is not entitled, and therefore he is not employed, to do things which are unreasonable or things which are expressly forbidden." So in Thompson v. Flemington Coal Co., 48 Scot. L. Rep. 740 (Ct. Sess., 1911), it was held that the injury to a workman received while going for a necessary occasion into a small space under an engine did not arise out of his employment. Rose v. Morrison & Mason, 105 L. T. 2, 4 B. W. C. C. 277 (C. A., 1911). Compare with the Thompson case, Lawless v. Wigan Coal Co., 124 L. T. J. 532, 1 B. W. C. C. 153 (Wigan Co. Ct., 1908). In each case the place of convenience was some distance away; in each case the occasion was urgent, though in Lawless's case the place used was one customarily used by workmen in similar emergencies. In none of these cases was the use of the place specifically forbidden. See also Edmunds . S. S. Peterston, 132 L. T. J. 6 (C. A., Oct., 1911).

29 McLaren v. Caledonian Ry., 48 Scot. L. Rep. 885 (Ct. Sess., 1911) (a railway employee taking a short cut home along the tracks); Hendry v. United Collieries Co., [1910] Scot. Sess. Cas. 709, 3 B. W. C. C. 567 (workman injured while leaving pit by path neither sanctioned nor expressly prohibited but obviously involving considerable danger); Pope v. Hill's Plymouth Co., 102 L. T., 633, 3 B. W. C. C. 339 (C. A., 1910) (boy attempting to climb moving trucks to steal a ride home, a practice obviously dangerous but not specifically forbidden); Morrison v. Clyde Nav. Trustees, [1909] Scot. Sess. Cas. 59, 2 B. W. C. C. 99 (similar facts). In all these cases the dangerous path or means of transportation was chosen to save the workman exertion.

30 Farwell, L. J., in Gilbert v. S. S. Nizam, [1910] 2 K. B. 555, 558, 3 B. W. C. C. 455: "The man who is crushed by a falling wall on his employer's premises while he is eating his dinner recovers compensation because he is entitled to be on the spot by virtue of his contract of employment.” “If he [he is speaking of a workman in a deep slate quarry] has to use some perilous means of access [or is required or permitted to satisfy his natural wants in a dangerous place], the dangers which he runs in such use are to my mind incident to his employment just the same as those he runs while actually working. It is by reason of the employment that he becomes subject to those risks." Fletcher Moulton, L. J., in Moore v. Manchester Liners, [1909] 1 K. B. 417, 2 W. C. C. 87, 97.

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