Scottish Court of Session Decisions

Hamilton & Calder, boilermakers, Vulcan Boiler Works, Coatbridge, with the concurrence of the Procurator-Fiscal there, brought a complaint in the Sheriff Court at Airdrie under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, the Criminal Procedure (Scotland) Act 1887, and the Railway and Canal Traffic Act 1888, against the Caledonian Railway Company, charging them with an offence under section 33 (3), of the Railway and Canal Traffic Act 1888 (51 and 52 Vict. c. 25), in respect that they had failed, when called upon to do so, to render an account in which a certain charge for goods carried was divided, and the charge for conveyance over the railway distinguished from the terminal charges, and the nature and details of the terminal expenses or charges

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therein contained specified, whereby the Caledonian Railway Company had become liable on summary conviction to a penalty not exceeding £5. The charge made was in respect of the carriage of plates of the weight of 9 tons 2 cwts. from Vulcan Boiler Works, Coatbridge, to the Glengarnock Iron and Steel Company's siding, Ardeer Iron Works, Stevenston, for which the Railway Company charged the sum of £3, 8s. 3d., being at the rate of 7s. 6d. per ton, and which rate included a charge of 1s. 7½d. per ton for terminal charges (or as subsequently described, balance of charge).

The respondents stated, inter alia, the following objections to the complaint:— “(3) The charge in question being made by the respondents in respect of special services rendered by them to the complainers at or in connection with a siding not belonging to the respondents in terms of section 5 of the Schedule of Maximum Rates and Charges referred to in the Provisional Order scheduled to and confirmed by the Railway Rates and Charges No. 19 (Caledonian Railway, &c.) Order Confirmation Act 1892, the provisions of sub-section (3) of section 33 of the Railway and Canal Traffic Act 1888 are not applicable thereto. (4) The charge in question not being a terminal charge within the meaning and application of sub-section (3) of section 33 of the Railway and Canal Traffic Act 1888, the respondents are not bound to specify the nature and detail of the expenses or charges in respect of which it is made.”

The Sheriff-Substitute ( Glegg) repelled the objections, and after a proof found the respondents guilty of the contravention charged, and imposed a penalty of £2, 10s.

The Railway Company appealed on a case stated.

From the case it appeared that “on 14th April 1905 the respondents sent to the appellants the following letter:—‘In terms of section 33, sub-section (3), of the Railway and Canal Traffic Act 1888, we hereby request you to render to us an account in which the undernoted charge made by you for the carriage of the undernoted merchandise consigned by us is divided, distinguishing the charge for conveyance from the terminal charges and specifying the detail and nature of the terminal expenses or charges, viz.—

‘1904.

Sept. 1st. From Vulcan Boiler Works to the Glengarnock Iron and Steel Company's siding, Ardeer Iron Works, Stevenston.

Plates 9 2—7s. 6d..£3 8 3.’

“The appellants replied by letter of 19th April in the following terms :—‘With reference to your letter of 14th inst., addressed to Mr Blackburn, secretary of this company, I beg to state that the rate in question, viz., 7s. 6d. per ton, is for traffic in Class C, and is made up as follows:—

‘Conveyance …5s. 10¾d. per ton.

Terminals…1s. 7¼d.”’

“The appellants refused to give further information.”

[At the hearing counsel for the appellants stated that the word “terminals” in the Railway Company's letter of 19th April had been wrongly used, and that what was meant was “balance of charge.”]

The goods had been carried from a private siding of the respondents to a private siding of the Glengarnock Iron and Steel Company, and with respect to the nature of the services rendered the case stated:—“The entire haulage inside and outside the respondents' boundary was done by an engine of the appellants. The respondents loaded the trucks and no services of loading or covering were performed by the appellants.… The appellants' siding, which connects with the respondents', enters the appellants' system at an awkward place. It comes in at the junction of two main lines, on both of which there is a large amount of traffic.… The charge for ‘terminals’ is made up of—(1) Provision of siding so far as on Caledonian property (31 yards), including gate. (2) Maintenance of siding so far as on Caledonian property (31 yards), including gate. (3) Signalling in vicinity of private siding and working points for private siding and other sidings. (4) Taking empty waggons from station to private siding. (5) Use of waggons on private siding. (6) Engine working on private siding. (7) Use of sidings in vicinity of private siding for shunting purposes. (8) Working between siding and station (line and accessories, engine-power, waggons, and staff). (9) Accommodation and marshalling at station. (10) Clerkage and checking, including office accommodation and foreman porter's visits to private siding when made. (11) General supervision, being supervision by stationmaster at Coatbridge. (12) Provision of chains and blocks when required. (13) Taking chains and blocks from station to siding… At … the beginning of the private sidings of the Ardeer Iron Works the trucks are taken over by an engine belonging to the Ardeer Iron Works, and the appellants are not required to supply further haulage under their contract.… The charge for ‘terminals ’ at this end is similar to that at the other, and is made up of (1) accommodation and shunting at Stevenston Station or junction at Ardeer Branch, as the case may be, inclusive of signalling. (2) Working from branch junction to station and vice versa in certain cases (line and accessories, engine-power, waggons, and staff). (3) Use of waggons on private lines. (4) Engine working on private lines. (5) Clerkage and checking, including office accommodation and number taking. (6) General supervision. (7) Use of chains and blocks when required on private lines, and returning same. At the proof Archibald Hillhouse, the general goods manager for the appellants — who wrote the letter of 19th April—explained that by ‘terminals’ he meant charges for services as described above. He said these were made under section 5, sub-section (1), of the Schedule of Maximum Rates and Charges, &c., contained in Appendix to the Caledonian Rates and Charges Act 1892. It

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was admitted that the charge of Is. 7¼d. was not made up from items for work actually done on the occasion in question, but was a general or overhead charge.”

The following questions of law for the opinion of the Court were submitted by the Sheriff-Substitute:—“(1) Do the provisions of section S3 (3) of the Railway and Canal Traffic Act 1888 (51 and 52 Vict. cap. 25) apply to charges or expenses for the services above specified, or any of them? (2) Are the services rendered by the appellants to the respondents, in respect of which the foresaid charge of Is. 7£d. has been made, services rendered at or in connection with sidings not belonging to a railway company within the meaning and application of section 5 of the Schedule of Maximum Rates and Charges, &c., annexed to the Railway Rates and Charges No. 19 (Caledonian Railway, &c.) Order Confirmation Act 1892, and if so, are they outwith the application of section 33 (3) of the Railway and Canal Traffic Act 1888? (3) In the circumstances above set forth was I right in convicting the appellants of the contravention charged?”

Argued for the appellants—Section 33 of the Railway and Canal Traffic Act 1888 applied only to station-to-station rates, where the work was done on the railway company's premises. It did not apply to rates from one private siding to another. The section which dealt with siding-to-siding rates was section 34. That being so, sub-section 3 of section 33 was not applicable— Pelsall Coal and Iron Company v. London and North Western Railway Company, January 12, 1891, 7 R. and C. Traffic Cases, 36. “Terminal charges” were defined in section 55 of the Act, and did not include services rendered at private sidings but only at stations, sidings of the railway company, &c. Provision as to furnishing particulars of charges for goods was originally made by section 17 of the Regulation of Railways Act 1868 (31 and 32 Vict. cap. 119), and later by section 14 of the Regulation of Railways Act 1873 (36 and 37 Vict. cap. 48). These did not apply to private sidings. The Act of 1888 was to be read along with the previous statutes and so its corresponding section, i.e., 33 (3), did not so apply. The Sheriff-Substitute had construed the word “terminals” as including all services rendered at the termination of the journey i.e., everything except conveyance. That was a wrong construction. The statutes distinguished between (1) “station terminals”; (2) “service terminals” and (3) “special services”— vide the Railway Rates and Charges No. 19 (Caledonian Railway) Order Confirmation Act 1892 (55 and 56 Vict. cap. 57), Schedule “Maximum Rates and Charges,” sections 1, 2, 3, 4, and 5. (An Order in identical terms is printed in Ferguson's Scottish Railway Statutes at p. 420). As to the history of “terminal charges,” reference was made to Deas on Railways (Ferguson's Ed.), p. 549 et seq. In “terminals” proper the terminus was always a station or a wharf, not a private siding. Section 21 of the 1888 Act provided that the “terminal charges” were to be stated, but these charges meant charges made at stations provided by the Railway Company, and not such a might be made at private sidings. What had been charged for here was “special services,” not “terminals.” Accordingly, even if sub-sec. (3) did apply to “siding-to-siding” rates, the appellants were not bound to give the information asked for seeing they were not bound to do so in the case of “special services” but only in the case of “terminals” properly so called. “Terminal station” was defined in section 25 of the Schedule ( ut supra). Sidings were not terminal stations. Reference was also made on this subject to Boyle and Waghorn on Railway and Canal Traffic, vol. ii, pp. 80 and 127. Section 5 of the Schedule annexed to the Railway Rates and Charges No. 19 (Caledonian) Order Confirmation Act 1892 provided for differences being settled by arbitration, and the respondents ought to have applied to the Board of Trade for the appointment of an arbitrator. Vide also the Railway and Canal Traffic Act 1894 (57 and 58 Vict. cap. 54), secs. 3 and 4.

Argued for respondents — It was the interest of the trader to have the charges detailed, as he might do the work more cheaply himself. Section 55 of the Act of 1888 ( ut supra) defined “terminal charges” as including charges for services rendered at stations, sidings, &c. If private sidings were not meant to be included the Act would have said so. Private sidings were also dealt with in the Report by Lord Balfour and Sir C. Boyle to the Board of Trade (see Report in Boyle and Waghorn on Railways and Canals, vol. ii, p. 118), on which the Act of 1892 proceeded. The charges in question included charges for “terminals” and charges for “special services.” Sub-section (3) of section 33 was explicit in its terms, and entitled the trader to details of (1) conveyance rates, and (2) terminal charges, i.e., everything not covered by the conveyance rate, and that whether the charges were for “station” services or “special” services. Both section 34 of the 1888 Act (which corresponded to section 14 of the 1873 Act) and section 33, sub-section (3), applied to places at which goods were received, which need not necessarily be “stations.” The terms of the statute had to be obeyed and the Sheriff was therefore right in convicting— New Union Mill Company scad Great Western Railway Company, April 14, 1896, 9 R. and C. Traffic Cases, p. 152. If the appellants thought they were unfairly treated they could resort to the Railway Commissioners, who had jurisdiction over private sidings.

At advising—