Scottish Court of Session Decisions

In 1845 the Earl of Aberdeen, being then proprietor of the estate of Boddam, including the village of Boddam and the harbour of Boddam, and the piers and works therewith connected, obtained an Act of Parliament (8 and 9 Vict. c. XXV.) for improving and maintaining the harbour. The Act proceeded upon the narrative that it would be of great advantage to the public, and especially to those using the harbour, if it were to be improved in the manner specified; that the Earl was willing to make the improvements at his own expense; and that in consideration of the expense to which he had been and would be put for improving and maintaining the harbour, it was reasonable that he and his heirs and successors should receive the tolls, rates, and dues thereinafter mentioned.

The Act, inter alia, contained the following provisions:—Section 57—“And be it enacted that it shall be lawful for the said Earl to contract and agree with any person to light the said harbour and other works with gas, oil, or otherwise, and to supply the said harbour and other works with water for the use of the shipping resorting to and using the said harbour and other works, as he shall think necessary and proper; provided always that no vessel using the said harbour shall be obliged to take water from the said Earl.” Section 62—“And be it enacted that it shall be lawful for the said Earl to erect beacons for the guidance of vessels, of such character, and to be exhibited in such mode, and to lay down such buoys of such description and in such situation within the limits of the said harbour, as shall from time to time be prescribed by the Commissioners of Northern Lighthouses in writing, signified under the hand of their secretary for the time being.” Section 63—“And be it enacted that it shall not be lawful for the said Earl to exhibit or alter, or to permit to be exhibited or altered, any light, beacon, or seamark without the sanction in writing of the Commissioners of Northern Lighthouses, signified under the hand of their secretary, first having been obtained in that behalf, and if any such light, beacon, or sea-mark shall be exhibited or altered, with such sanction as aforesaid, the same shall be of such power, description, and character, and shall be from time to time discontinued or altered as the Commissioners of Northern Lighthouses shall from time to time direct by new notice to the said Earl.”

Prior to the passing of the Act the leading lights of the harbour consisted of wooden lanterns with candles, which were provided and maintained by the fishermen. In 1849 Lord Aberdeen took the lighting into his own hands, and applied to the Commissioners of Northern Lighthouses to prescribe the character and position of the leading lights. The Commissioners prescribed certain leading lights, which were fitted with Argand burners, and maintained by Lord Aberdeen at his own expense until 1864, when he began to charge the fishermen 2s. 6d. a-boat for light dues, which were paid by them. The lights were exhibited from sunset to sunrise during the herring fishing season, from 1st July to 1st October.

In 1865 the estate of Boddam, including the harbour, was bought from the Earl of Aberdeen by William Aiton, the defender in this action. The leading lights were maintained and exhibited by him from 1865 to 1872, he levying a charge of 2s. 6d. per boat on the fishermen to defray the expense of so maintaining and exhibiting them. In 1872 he proposed to raise the contribution to 5s. per boat, and in consequence of the refusal of the fishermen to pay this advanced rate no lights were exhibited during the fishing season of 1872.

In 1873 an agreement was entered into between the defender and a committee of the fishermen, by which, on the narrative that the fishermen

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wished to have the leading lights continued during the then ensuing fishing season, and had undertaken the charge and responsibility of lighting the harbour as required by secs. 62 and 63 of the Boddam Harbour Act and relative direction of the Northern Lights Commissioners, the defender handed over to the keeping of the committee the lanterns, lamps, and relative connections of the lights on certain conditions, on loan, to be put up, lighted, and watched at the committee's expense, and to be returned if demanded at the conclusion of any future fishing season, and any deficiency in value paid to the defender. The lights were thereafter maintained by the fishermen until the end of the season of 1883.

In 1878 the defender, in consequence of the raising of an action against him by the fishermen to have him ordained to repair the harbour, obtained from the Board of Trade a Provisional Order authorising him, instead of repairing the existing harbour, to execute certain new harbour works, and to levy certain other rates and dues. Section 36 of this order was as follows:—“After completion or permanent discontinuance or abandonment of the works authorised by this order, the undertakers shall, at the outer extremity of the works, or the completed portion thereof, exhibit from sunset to sunrise such light or lights, if any, as shall from time to time be directed by the Commissioners of Northern Lighthouses, and shall apply to those Commissioners for directions as to lighting, and the undertakers shall be liable to a penalty not exceeding £10 for every calendar month during which they omit so to apply.”

This order was confirmed by the Pier and Harbour Orders Confirmation Act 1878 (No. 2) (41 and 42 Vict. ch. cxv.), sub. tit. “Boddam.” Section 26 of this Act provided—“The rates received under this order, or, as the case may be, the rents received for the lease thereof, if the same are leased, shall be applicable for the purposes and in the order following, and not otherwise:—1. In paying the expenses of the maintenance, repair, improvement, management, and regulation of the existing harbour and the existing works thereof. 2. In paying the interest heretofore accrued or hereafter to accrue on money borrowed before the passing of the Act confirming this Order on the security of the harbour of Boddam, and of the rates and duties authorised by the Act of 1845. 3. In paying the costs of and in connection with the preparation and making of this Order. 4. In paying the expenses of the maintenance, repair, improvement, management, and regulation of the works authorised by the Order. 5. In paying, if and when required, the principal sum of the money borrowed as aforesaid. 6. In paying the interest accruing on any money borrowed under this Order. 7. In paying, if and when required, the principal sum of any money borrowed under this Order. 8. The surplus revenue (if any) of the harbour, after providing for the purposes aforesaid, shall belong to the undertakers for their own use.”

On these new works the defender expended upwards of £9000. In 1883 the fishermen, holding that under the new state of matters introduced by the Provisional Order the defender was bound to light the harbour, intimated to him that they would discontinue the lights (which they in point of fact did at the end of that season), and asked him if he intended to maintain them, which he declined to do.

In consequence of a communication from the Commissioners of Northern Lights, dated 17th July 1884, the defender immediately thereafter recommenced exhibiting the lights, and continued to do so till the 15th of September, when they were discontinued. He at the same time gave notice to the fishermen that a charge of 2s. 6d. per boat would have to be paid to him for light dues.

In December 1884 the present action was raised by Robert Bruce and others, all fishermen in Boddam, as a committee of management elected by the fishermen of Boddam for transacting their fishing affairs, and as individuals. The conclusions of the summons were—“That the defender, as proprietor of the said harbour of Boddam, is bound to exhibit and maintain at his own expense, from sunset to sunrise during the whole year, leading lights at the said harbour for the guidance of vessels and boats entering the said harbour; or otherwise, to exhibit and maintain at his own expense, from sunset to sunrise during the whole year, such light or lights at the said harbour as may be directed by the Commissioners of Northern Lighthouses, in terms of the 36th section of the Boddam Harbour Order 1878, confirmed by the Pier and Harbour Orders Confirmation Act 1878, No. 2: And the defender ought and should be decerned and ordained, by decree foresaid, to exhibit and maintain at his own expense, from sunset to sunrise during the whole year, the four leading lights which have been in use to be exhibited at the said harbour of Boddam, or otherwise such light or lights as may be directed by the Commissioners of Northern Lighthouses, in terms of the said 36th section of the said Order, confirmed as aforesaid; or otherwise, the said defender ought and should be decerned and ordained, by decree foresaid, to erect, exhibit, and maintain at his own expense such leading or other lights at such places and for such time as it may be found he is bound to erect, exhibit, and maintain in the course of the process to follow hereon.”

The pursuers averred that the entrance to the harbour was narrow and difficult, and that it was in the highest degree dangerous for vessels or boats to attempt to enter the harbour after dark without the guidance of leading lights. They maintained that the defender was bound to maintain leading lights throughout the year, that the said leading lights having been erected and exhibited by the Earl of Aberdeen, under direction of the Northern Lights Commissioners, the defender was not without their (the Commissioners) sanction entitled to discontinue them, but bound to maintain them, and was in any view bound to exhibit such lights as they should direct, in terms of section 36 of the Provisional Order or otherwise.

The defender averred that he was, and always had been, willing to “maintain and exhibit the lights, conform to usage, on being paid the expense thereof by the fishermen for whose benefit alone they exist. It is further explained that, after applying the revenue of the harbour to the first three purposes specified in section 26 of said Order of 1878, there remains no balance of revenue, and, on the contrary, the harbour revenue does not meet the expenditure.”

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He pleaded—“(3) At common law, and by the statutes libelled, the defender is not bound to light the harbour at his own expense, but is entitled to levy dues therefor. (5) The defender should be assoilzied, in respect he is not bound to light the harbour during the whole year, and, separatim, in respect that he is not entitled at his own hand to alter the usage of the harbour as to lights. (6) The defender being willing to light the harbour, and never having refused to fulfil his obligation thereanent, should be assoilzied, with expenses.”

The Lord Ordinary, after hearing parties on the procedure roll, dismissed the action in so far as regarded the declaratory conclusions and the second alternative of the first petitory conclusion, and quoad ultra continued the cause.

“ Opinion.—I know of no authority, and none was cited to me, under which the proprietor of a harbour, qua proprietor, can at common law be compelled to exhibit and maintain at his own expense such lights as are specified in the first alternative of the declaratory conclusion of the summons. As regards the second alternative of that conclusion, I am of opinion that decree in terms thereof would be superfluous, in respect it would be nearly repeating what has been already been declared to be the defender's duty by the higher authority of the Legislature, and it is not needed as leading to any petitory conclusion in this action, which I can at present sustain. I therefore dismiss the action so far as the declaratory conclusions are concerned.

I also dismiss the action so far as it concludes for decree ordaining the defender to exhibit and maintain at his own expense such light or lights as may be directed by the Commissioners of Northern Lighthouses,’ in terms of the 36th section of the Provisional Order of 1878, because the Commissioners have not ordered or directed the exhibition of any light such as is provided for by that section. That section provides that it shall be the duty of the defender to exhibit at the ‘outer extremity of the works ( i.e., the works authorised by the Provisional Order) or the completed portion thereof,’ such light or lights as the said Commissioners may direct. The only order or direction given by the Commissioners is that contained in their secretary's letter of date 17th July 1884; but I cannot read that as a valid order under section 36. It orders the maintenance of the ‘existing leading lights, four in number but these are not, nor any of them, at the outer extremity of the works authorised by the Provisional Order, but are lights connected with the old harbour, and in use before the new works were authorised or executed.”..

There remained the conclusion that the defender should be ordained to “exhibit and maintain at his own expense from sunset to sunrise during the whole year the four leading lights which have been in use to be exhibited at the said harbour of Boddam.

The Lord Ordinary having again heard parties on the procedure roll, allowed a proof.

The defender lodged a “Statement of Revenue and Expenditure of Boddam Harbour for three years under the. .. Boddam Harbour Order 1878.” The details of the statement appear, so far as necessary, in the opinion of Lord Young. It showed that the income from the harbour was considerably greater than the outlay in maintaining it, but that when interest on the borrowed money was added to that spent there was a loss on the harbour.

The Lord Ordinary assoilzied the defender from the whole conclusions of the summons.

“ Opinion.—The only conclusion of the summons which remains now to be disposed of is that which concludes that the defender should be ordained ‘to exhibit and maintain, at his own expense, from sunset to sunrise, during the whole year, the four leading lights which have been in use to be exhibited at the said harbour of Boddam.’

It appeared to me, when I disposed of part of the case on 12th March last, that the conclusion I have now to deal with was a petitory conclusion, designed to follow up and carry into practical effect the first declaratory conclusion,—which is that the defender ‘as proprietor’ of Boddam Harbour is bound to maintain the lights in question,—and I was then disposed to assoilzie the defender from this conclusion, as I then did from the declaratory conclusion. I refrained from doing so, however, on two grounds—(1) because the pursuer had not limited the petitory as he did the declaratory conclusion, by the words ‘as proprietor;’ and (2) because there was a distinct averment—Cond. 6—that the lights in question had been prescribed by the Commissioners of Northern Lighthouses under statutory authority. The latter averment being denied, I allowed a proof, and that proof having been led, I am now in a position to dispose of the remaining part of the case.”. .

In the conclusion of his note his Lordship gave his reasons for holding that the lights had not been prescribed by the Commissioners of Northern Lighthouses in 1849.

The pursuers reclaimed, and argued—The obligation on the defender here to maintain these lights was statutory, and independent of any question of revenue derived from the harbour. He was in a different position from the proprietor in the Leven case— Officers of State v. Christie, Feb. 2, 1854, 16 D. 454—against whom there was no statute pleadable. But even at common law lights were in a different position from repairs of harbour works. Lights were essential to safe navigation, and to the use of the harbour at all.

The defender replied—No obligation was imposed on the proprietor by the Act of 1845. The provisions of the Act were permissive merely, not imperative. The Act said merely, “it shall be lawful” to him, not “he shall be bound.” Such words had been decided in England not to intend an imperative obligation— Julius v. The Bishop of Oxford, L.R., 5 App. Cases 214—and at all events, if there were an obligation imposed by the Act, the fishermen had contracted themselves out of their right to exact fulfilment of it by the agreement of 1873.