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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Great North of Scotland Railway Co. v. Highland Railway Co. [1895] ScotLR 32_275 (1 February 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0275.html
Cite as: [1895] ScotLR 32_275, [1895] SLR 32_275
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SCOTTISH_SLR_Court_of_Session
Page: 275↓
Court of Session Outer House Second Division.
Lord Wellwood, Ordinary.
v.
Facts:
By agreement to refer, dated 18th June 1886, the Highland and the Great North of Scotland Railway Companies submitted to the decision of Mr Beale as arbiter the following question:— “Whether the proviso of section 82 of the Highland Railway Act 1865 applies to traffic exchanged under the Great North of Scotland Act 1884 between the two companies at Elgin, or whether the receipts of such traffic are to be divided between the two companies respectively in accordance With their respective mileage, and under the rules of the Clearing House?”
The arbiter in his award, dated 9th July 1886, awarded and determined “that the proviso of section 82 of the Highland Railway Act 1865 … does not apply to traffic exchanged under the Great North of Scotland Act 1884 between the two companies at Elgin,” and further “that the receipts of such traffic are to be divided between the two companies respectively in accordance with their respective mileage and under the rules of the Clearing House.”
In an action raised by the Great North of Scotland Railway Company against the Highland Railway Company for implement of the award, the defenders asked that they should be allowed a proof of the following averment by them:—“The terms ‘traffic exchanged under the Act of 1884 between the two companies at Elgin,’ occurring in the question submitted to Mr Beale, do not include, and were understood by the parties not to include, passenger traffic. This was explained to Mr Beale, and he and both the parties acted in the whole proceedings before him on the footing that no question as to the division of passenger traffic receipts was submitted to him, and he accordingly decided no question as to the division of passenger traffic receipts.”
The Court ( aff. the judgment of Lord Wellwood) refused to allow the proof asked for by the defenders, on the ground that the questions put to the arbiter and his answers thereto were distinct and unambiguous.
By the Highland Railway Act 1865 (28 and 29 Vict. c. 168) the undertakings of the Inverness and Aberdeen Junction and the Inverness and Perth Junction Railway Companies were dissolved, and the whole united as the Highland Railway Company. By section 82 it was provided that the Highland Company should afford the Great North of Scotland all needful accommodations and facilities for through traffic, and should be bound to accept from the Great North of Scotland Railway Company the same mileage rate in respect of competitive traffic passing via Aberdeen as they were for the time charging in respect of similar traffic passing via Dunkeld: “Provided always that the rates and charges shall be calculated as if the traffic passed over the shortest distance, that the lines of the company, and the lines of or worked by the said Great North of Scotland Railway Company in connection would give, and out of such charges the company shall receive its full mileage proportion of the distance which the traffic passing over their railways has actually traversed.” …
Section 83 provided that “In all cases through traffic, whether by railway or otherwise, passing between the lines of the companies to or from places to the east or south of Keith shall be exchanged at Keith.”
By the Great North of Scotland Railway Act 1884 it was provided that traffic over the lines of the two companies might he exchanged at any junction.
After the passing of this Act the Great North of Scotland Railway Company began to exchange traffic from places east and south of Keith at Elgin, carrying it from Keith to Elgin by their own line via Craigellachie, instead of sending it by the Highland Company's route from Keith to Elgin via Mulben, which is nine miles shorter than the route via Craigellachie.
The Highland Railway Company appealed to the proviso in section 82 of their Act of 1865, which is quoted above. The Great North of Scotland Railway Company denied that this proviso controlled the Act of 1884, and as the companies could not agree as to the footing on which through rates should be divided, they agreed on 18th June 1886 to refer the following questions to Mr James Beale as arbiter: —“(1) Whether the proviso to section 82 of the Highland Act 1865, above quoted,
Page: 276↓
applies to traffic exchanged under the Act of 1884 between the two companies at Elgin, or whether the receipts of such traffic are to be divided between the two companies respectively in accordance with their respective mileage and under the rules of the Clearing-House. (2) If the proviso applies at all, does it apply to anything other than competitive traffic passing via Aberdeen.” On 9th July 1886 Mr Beale issued the following award—“I hereby award and determine that the proviso of section 82 of the Highland Railway Act 1865, printed on the fourth page of, and referred to in the above written submission, does not apply to traffic exchanged under the Great North of Scotland Railway Act 1884 between the two companies at Elgin, and I further award and determine that the receipts of such traffic are to be divided between the two companies respectively in accordance with their respective mileage and under the rules of the Clearing-House.”
Various questions arose between the companies as to the meaning and effect of this award, and in February 1894 the Great North of Scotland Railway Company brought this action against the Highland Railway Company with the object of having them ordained to implement the decree—arbitral in the manner in which the pursuers construed it.
The parties maintained various conflicting contentions as to the construction and effect of the award, the pursuers, inter alia, asserting and the defenders denying that it applied to passenger traffic. In support of their contention on this point the defenders also asked to be allowed a proof of the following averment—“The terms ‘traffic exchanged under the Act of 1884 between the two companies at Elgin,’ occurring in the first question submitted to Mr Beale do not include, and were understood by the parties not to include, passenger traffic. This was explained to Mr Beale, and he and both the partiesacted in the whole proceedings before him on the footing that no question as to the division of passenger traffic receipts was submitted to him, and he accordingly decided no question as to the division of passenger traffic receipts.”
On 25th November 1894 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—“Finds and declares, decerns and ordains, in terms of the conclusions of the the summons,” &c.
“ Opinion.—[After dealing with the questions raised as to the construction of the award his Lordship referred to the defenders' motion for proof and proceeded] —It is true that in certain circumstances it is competent to examine an arbiter as to what took place before him, and as to what is embraced in his award— The Duke of Buccleuch, in L.R., 5 Eng. And Ir. App. 418 Glasgow City and District Railway Company v. M'George, Cowan, & Galloway, 13 R. 609, are illustrations. Such a course may be competent where there is a reasonable doubt as to the terms of the question submitted to the arbiter, or where the award is in general terms, and it is relevantly averred that the arbiter arrived at it on consideration of matters ultra vires compromissi. But here it is proposed by parole evidence, and on averments of the vaguest kind to contradict the written agreements of the parties which, in my opinion, unambiguously embrace traffic of every description. As I have already pointed out, the award simply echoes the question put; and therefore we have to look to the terms of the submission to ascertain whether there is any ambiguity. In my opinion there is no reasonable doubt as to the meaning of the submission, and I think it would be dangerous, after an interval of eight years, to send such loose averments to proof. I have the less hesitation in refusing proof, because I should gather from the previous case between the parties that the present defenders' contention there was that Mr Beale did deal with the question of passenger fares, but that his award fell to be interpreted to the effect that the division of passenger fares should be regulated by the 25th rule of the Clearing-House. …
“On the whole matter, I think the pursuers are entitled to decree.”
The defenders reclaimed, and argued, inter alia, that proof should be allowed that Mr Beale pronounced his award on the understanding that no question as to the division of passenger traffic receipts had been submitted to him — Macdonald v. Longbottom, June 15, 1860, 29 L. J., Q. B. 256; Mumford v. Gething, November 17, 1859, 29 L.J., C.P. 104.
Argued for the pursuers, inter alia—Mr Beale's decision was unambiguous, and it was absurd to ask the Court, after a lapse of eight years, to allow proof of what the person who pronounced it meant by it.
At advising—
Page: 277↓
I would move your Lordships to adhere to the interlocutor reclaimed against.
The Court adhered.
Counsel for the Pursuers — Graham Murray, Q.C.— Ure— Ferguson. Agents — T. J. Gordon & Falconer, W.S.
Counsel for the Defenders— H. Johnston — Dundas— Blair. Agents— J. K. & W. P. Lindsay, W.S.