Scottish Court of Session Decisions

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Cite as: [1865] SLR 1_40_2, [1865] ScotLR 1_40_2

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

1 SLR 40_2

Napier

v.

Glasgow and South-Western Railway Company.
Headnote:

In this case, which was debated last session, their Lordsdips to-day unanimously recalled the interlocutor of the Lord Ordinary (Mure), and refused the prayer of Mr Napier's petition. The circumstances are stated in the Lord President's speech.

Judgment:

The Lord President—This is an application by Nr Napier, shipowner and carrier, founded on the Railway Traffic Act of 1854. It is directed against the Glasgow and South-Western Railway Company, and complains that that company have contravened the Act by certain facilities and advantages they have given in the shipment of goods between Ardrossan and Belfast to a vessel called the Oscar, which advantages and facilities are not given to the petitioner, who has a vessel called the Lancefield plying between the same ports. It would appear that the railway company has a line terminating at or near the harbour of Ardrossan, and they have engaged in the endeavour to establish a trade between Glasgow

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and Belfast via Ardrossan. In that trade they have formidable competitors in the steamboats between Glasgow and Belfast, which carry goods direct. It appears that in order to foster and encourage the trade between Ardrossan and Belfast the railway company have made arrangements with certain vessels to ply in connection with the train from Glasgow. Originally the arrangement was made with Mr Napier, who put his vessel, the Lancefield, on the station; and one part of the arrangement was that the railway company should divide with the steamboat owners the charge for the conveyance of passengers and goods in certain fixed proportions. It appears that in October last year the railway company ceased to employ the petitioner's vessel, or rather ceased to give her full employment, and employed the Oscar to carry their goods. The petitioner wished to have a share of that traffic, and he endeavoured to continue to trade with his own vessel; but he appears to have found difficulty in obtaining accommodation at the wharf on the same days and hours of sailing with the Oscar, and so he took the other three days of the week, which did not interfere with the berth at the wharf, and endeavoured to carry on the trade. But he says that the railway company refused to give him the same facilities for carrying on the trade which they gave to the Oscar, and they gave to the Oscar all the facilities he formerly had with the Lancefield. He says these facilities are of great importance, and indeed necessary to the success of his trade, and that the withholding of them is a contravention of the Act. The railway company, he says, won't put any goods on board his vessel except such as are specially addressed to go by the Lancefield. He also says that in the manner in which the through traffic is conducted by the Oscar, the portion which the company receives of the charge for carrying the goods through is much less than the charge for goods going to Ardrossan alone, and consequently the goods which he receives at Ardrossan from the railway company cannot be carried except at a much higher price than is paid for the goods shipped by the Oscar. The company, on the other hand, say that they were quite willing to have continued Mr Napier as the person with whom they were to conduct this traffic, but he would not bind himself to remain to make the transit of passengers and goods certain, but insisted on his right to remove his vessel any time he chose with or without notice, and that he actually contemplated and had arranged for removing his vessel, and that that necessitated them to look out for some other party. They say they cannot conduct this traffic except by special agreement with some particular person, and that they were obliged to make this agreement with the Oscar. They further say that the subject-matter of the complaint is not one which falls within the statute. They even say that they were disposed to have continued Mr Napier, and would have preferred him to any other person if he had agreed to fix his vessel in that place, so as to make sure they could send passengers and goods at any time. The remedy which Mr Napier seeks is not one which is very easy to work. It is not that they are to give him the advantages they give to the Oscar, but that they are to deprive the Oscar of the advantage it is getting. It implies this, that the company shall not carry on their traffic to Belfast on the footing they are now doing, but shall send their goods to Ardrossan and leave them to be taken up there, and that they shall be carried by any vessel plying from that port. I suppose, however, they are to undertake that the goods shall be sent to Belfast. It is not very easy to work the prayer of the petition; but apart from that, there is the broader question, whether the thing complained of is or is not a matter struck at by the statute? His Lordship read the second section of the Act, which provides that railway and canal companies shall afford all reasonable facilities for receiving, forwarding, and delivering goods, and that no company shall give an undue and unreasonable preference or advantage in favour of any particular person or company, or in favour of any particular description of traffic. His Lordship added—Mr Napier says these proceedings give an undue or unreasonable preference to the Oscar. But the question arises whether this section is really intended to apply to cases of this class, and I rather think, looking to the other sections of the Act relating to traffic going beyond the limits of the particular railway or canal company, that the clause founded on does not apply to the case before us, which is the case of conveyance by sea. What, then, are we to make of this case? Mr Napier does not complain of any irregularity in the arrangement with the Oscar, whereby the railway company receive less than they would for goods going no further than Ardrossan. On the contrary, he wants that arrangement made with himself. Supposing, therefore, there is no irregularity in that arrangement, is it an undue or unreasonable thing that the railway company should make that transaction with a particular vessel? It seems to me to be the most reasonable thing possible. It evidently requires a special arrangement with some party, and arrangement for the division of the profits; and it requires that the railway company shall have special confidence in the vessel that it shall keep its time and be seaworthy. The company cannot enter into a special contract with every vessel that chooses to ply between Belfast and Ardrossan. Are we to have an inquiry as to whether one vessel is as suitable for the purpose as another vessel—as to whether the crew of one vessel are as good and reliable as the other? Are we to inquire whether sailing boats or steamboats are to be placed on the same footing? I think that this kind of traffic, carried on beyond the terminus of the railway, across the sea, is a kind of traffic as to which it is most reasonable that the parties should enter into a special contract, that the railway company should select the parties with whom they are to contract, and that it is not a matter within the purview of the statute at all. On these grounds my opinion—although the matter is very powerfully put in the Lord Ordinary's note—is that the interlocutor should be altered and the application for interdict refused.

Lord Curriehill concurred. He said there was no allegation that the petitioner could not himself be transported between Glasgow and Belfast on the same terms as all the rest of the community; and he did not allege that the goods with which he was connected as owner or consignee could not be carried from one terminus to another on the same terms as others. All he said was that he was owner of a ship which he wanted put on the same footing as another ship. He (Lord Curriehill) was not prepared to say that in that character he was entitled to take advantage of this Act.

Lord Deas was of the same opinion. He said the party might have a good enough title to complain under the Act, but nothing that he had complained of could be held to be within the Act. The letter of the Act could not be founded on, as this was a question of conveyance not by railway or canal but by sea; nor could the spirit of the Act be founded on which simply provided that no obstruction should be offered to the public in the use of continuous lines of communication. He did not see that there was here any obstruction to parties desiring to use a continuous line of communication; and this was a continuous line of communication which, if the railway company did not make some arrangement of this kind, the public probably could not use at all. Assuming it to be legal for the company to take the responsibility of conveying goods between Glasgow and Belfast, it was reasonable that on their part there should be a selection of the vessel for which they were to be responsible. If this petition were granted the result would be that there would be no arrangement with any vessel whatever.

Lord Ardmillan also concurred, remarking that the railway company could not enter into this traffic, which was a legitimate traffic, nor compete with other routes, unless they entered into a special contract with some person or company in whom they

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had confidence. It was Mr Napier's fault if he lost this contract with the company; he could not now complain of undue preference being given to another party, seeing he refused to bind himself to the company to keep his steamer on the line.

Their Lordships recalled the interlocutor of Lord Mure, and refused the petition of Mr Napier, with expenses.

Counsel:

Counsel for Petitioner— Mr Gifford and Mr Strachan. Agents— Messrs M'Lachlan, Ivory, & Rodger, W.S.

Counsel for Respondents—The Solicitor-General, Mr Gordon, Mr Clark, and Mr Johnston. Agents— Messrs Gibson-Craig, Dalziel, & Brodies, W.S.
1865