Scottish Court of Session Decisions

The Right Hon. Caroline, Countess-Dowager of Seafield, proprietrix of, inter alia, the lands of Urquhart and Abriachan, on the shore of Loch Ness, brought an action against (1) David MacBrayne, shipowner, Glasgow, and (2) the Commissioners of the Caledonian Canal, incorporated by Act of Parliament, who were called for their interest but did not enter appearance.

The conclusions of the action, which dealt with the payments to be made on the defender's ships touching at Temple Pier and Abriachan Pier on Loch Ness, on the Caledonian Canal, were, inter alia, as follows:—“And (II) it ought and should be found and declared by decree foresaid that the pursuer is entitled to levy on the defender the said David MacBrayne (a) in respect of every ship or boat other than a steamboat belonging to the said defender which shall so touch, load, or discharge, the sum of one penny per registered ton for each time that such ship or boat shall so touch, load, or discharge, and (b) in respect of every steamboat belonging to the said defender which shall so touch, load, or discharge, the sum of Is. fid. for every time that such steamboat shall so touch, load, or discharge; (III) or otherwise it ought and should be found and declared by decree foresaid that the pursuer is entitled to levy on the said defender in respect of every vessel belonging to the said defender which shall land or receive on board passengers, animals, carriages, or goods at or from either of the said piers, a rate of 2d. for every ton burden of such vessel according to its register or measurement for every time that such vessel shall

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so land or receive on board such passengers, animals, carriages, or goods. …”

The pursuer pleaded—“(1) The piers mentioned in the condescendence being the private property of the pursuer, she is entitled, subject to such limitations and regulations as have been or may be legally imposed by the Caledonian Canal Commissioners, to levy on the defender dues in respect of all steamboats or other vessels belonging to him which touch at or make use of the same. (2) The rate of Is. 6d. per visit of each steamboat having been duly approved by the Canal Commissioners, the pursuer is entitled to decree of declarator in terms of the second conclusion. (3) Or otherwise the rate of 2d. per ton prescribed by the Act of 1860, being the only effective limitation of the pursuer's right to levy rates, decree of declarator should be granted in terms of the third conclusion.”

The defender pleaded—“(2) The pursuer having no right to levy dues upon the steamboats or other vessels belonging to the defender which touch at or make use of the piers referred to, the action ought to be dismissed.”

The Caledonian Canal is maintained by the Caledonian Canal Commissioners under authority of various statutes, and particularly of the Acts of 1803 (43 Geo. III, cap. 102), 1804 (44 Geo. III, cap. 62), 1848 (11 and 12 Vict. cap. 54), 1857 (20 and 21 Vict. cap. 27), 1860 (23 and 24 Vict. cap. 46), and 1896 (59 and 60 Vict. cap. 79). So far as necessary for this case the following are the provisions.

The Act of 1804 in sec. 58 allowed abutting landowners to erect piers and provided for charges thereat (v. sup. in rubric). Section 59 allowed the Commissioners to erect piers, &c., if the landowners did not do so. Section 62 provided that nothing in the Act should authorise the Commissioners or other person to use a wharf erected for private use only.

The Act of 1857, sec. 3, enacted—“Prom and after the passing of this Act it shall be lawful for the Commissioners to levy and receive at every pier, jetty, or landing place erected or to be erected or improved on lands belonging to the Commissioners, or on or in connection with the canals respectively, such rates on passengers, animals, goods, and carriages landed or shipped at such pier, jetty, or landing place as the Commissioners may from time to time deem expedient, not exceeding the rates specified in the schedule hereunto annexed.” The schedule did not deal with tonnage dues. Section 4 authorised the Commissioners to enter into agreements with the owners of any lands on the Canal with respect to any piers or landing places erected or to be erected by such owners at their own expense, and with regard to the management and maintenance thereof, and the levying and receiving thereat of rates not exceeding those in the said schedule.

The facts of the case are given infra in the opinions of the Lord Ordinary (Low), who on 17th February 1905 before answer allowed a proof.

Opinion.—“The pursuer is proprietor of two piers upon Loch Ness, known as Temple Pier and Abriachan Pier, which are used in connection with the navigation of the Caledonian Canal. The former was built in 1858 and the latter in 1881. The defender is a shipowner in Glasgow, who runs a line of steamers through the canal for the conveyance of passengers and goods. The defender's steamers call daily at Temple Pier. They used also to call at Abriachan, but have not done so since early in 1904.

From the time that Temple Pier was built the pursuer or her predecessors have made charges for the use of that pier, and since 1869 the defender has paid to the pursuer an annual sum of £22, 10s. The pursuer now proposes, instead of taking an annual payment of a fixed amount from the defender, to charge dues at a certain rate upon passengers and goods landed or embarked at both piers, and also certain tonnage rates upon all vessels touching at the piers.

I understand that the defender does not dispute the pursuer's right to exact landing charges upon passengers and goods (at all events at Temple Pier), but he maintains that she is not entitled to charge tonnage dues upon vessels touching at or using the piers. The present action is brought by the pursuer for the purpose of having her alleged right to do so declared.

There are a number of Acts of Parliament relating to the Caledonian Canal, and to these both parties appeal in support of their respective contentions.

The first Act was passed in 1803, and by it a Parliamentary grant of £20,000 was made to certain Commissioners for the purpose of making the Canal. By an Act passed in the following year—1804—the grant was increased to £50,000, and the Commissioners were authorised to construct all necessary works and to levy rates and duties. The 58th section of the latter Act contains provisions which are admittedly applicable to the piers in question. By it the owners of lands ‘through which the said navigation shall be made’ are authorised to construct ‘wharfs, quays, and landing-places,’ and to land goods, wares, and merchandise or commodities upon such wharfs, quays, and landing-places. The section then proceeds:—… [quoted supra in rubric].…

In that section it is assumed that rates and duties will be levied for the use of such landing-places, because without express authority being given to anyone to do so it is declared that ‘the rates and duties which shall be paid’ shall be vested in the owners. Now' if rates and duties for the use of the landing-places were vested in the owners I think that it follows that the owners were empowered to levy such rates and duties, and no express limitation is put upon the right except that it shall in some way be regulated by the Commissioners.

It was argued, however, for the defender that the kind of rates and duties which might be levied w'as by implication limited to charges for the use of the landing-places for loading and unloading goods and merchandise. It was pointed out that what

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was expressly authorised by the section was to construct wharfs, quays, and landing-places, ‘and to land any goods, wares, merchandise or commodities upon such wharfs, quays, or landing-places;’ and further, that what the Commissioners were empowered to regulate was ‘such rates of wharfage’—an expression, it was argued, which is appropriate for landing charges but not for tonnage dues.

I am not satisfied that the term ‘wharfage’ when applied to rates or duties is necessarily confined to charges made for landing or embarking goods or passengers. I think that it may include all charges which may be made for the use of a wharf, and if the statutes authorise tonnage rates for the use of a wharf I do not think that the mere use of the expression ‘rates of wharfage’ is sufficient to exclude such rates.

The question seems to me to depend in the first place upon what is the true construction of the provision that the rates and duties ‘shall be subject to the powers herein contained for the said Commissioners to limit, ascertain, and make regulations of and concerning such rates of wharfage.’

I confess that when I read that clause I expected to find in the Act special powers given to the Commissioners to fix and regulate the rates and duties which might be exacted at wharfs and landing-places of the kind dealt with by the section, but there is no such provision in the Act. I therefore come to the conclusion that what is referred to are the general powers given to the Commissioners to fix (within the statutory limits) and to regulate the rates and duties which they are authorised to charge for the use of the canal or of the works connected therewith. These included (at the date of the Act) tonnage rates for every vessel entering the Canal, and a certain rate per ton upon all goods loaded or unloaded at the harbours, docks, or basins at the entrances to the Canal (Act 1803, section 23), a rate not exceeding 2d. per ton per mile upon goods carried upon or through the Canal for ‘tonnage and wharfage’ (Act 1804, section 40), and certain rates for, inter alia, using wharfs and quays for loading or unloading goods (Act 1804, section 50).

Now, of course, the rates which the Commissioners were empowered to charge, whether upon ships or goods, for the privilege of entering or navigating the Canal had no application to wharfs or landing-places of the kind in question, but only such rates as they were empowered to levy for the use of wharfs and landing-places. That I take to be the reason why, in the clause of the section which I have quoted, the reference to the power of the Commissioners to make regulations is limited to ‘such rates of wharfage.’

I am therefore of opinion that the owners of such piers as those in question were authorised to charge for their use such rates as the Commissioners could have charged if the piers had been vested in them, but no other or greater rates.

How precisely the provision that the rates and duties should be subject to the statutory powers of the Commissioners was intended to be carried into operation is not very clear, but what the pursuer's predecessors did (and I do not understand that the pursuer proposes to adopt any other course) was to obtain the Commissioners' approval and sanction to a table of rates to be exacted at the piers. I think that such a course was quite in conformity with the provisions of the statute, and that the pursuer is entitled to levy such dues as are approved by the Commissioners, provided that they are of a kind and of an amount which the Commissioners could themselves have charged if the piers had belonged to them.

The last table of dues which is said to have been approved by the Commissioners, and which the pursuer now seeks to enforce, is dated in 1870. So far as I can judge from the excerpts from the statutes which have been printed, the Commissioners had at that date power to charge a tonnage rate on vessels landing or receiving on board goods or passengers as well as rates upon the goods and passengers themselves, but it seems to be doubtful whether they had power to charge a tonnage rate upon vessels merely touching at a pier without landing or embarking goods or passengers. Further, there has been legislation on the subject since 1870, because in 1896 an Act was passed confirming a Provisional Order made by the Board of Trade pursuant upon the Railway and Canal Traffic Act 1888. What the precise effect of that order was I do not know, but the schedule attached does not appear to contain any tonnage rate for vessels using a quay or pier.

I am therefore not in a position to dispose of the case without further information. I cannot tell from the excerpts from the statutes which have been printed what precisely are the rates and duties now in force. That could only be ascertained by a close comparison of the provisions of the various statutes and schedules, and probably some knowledge of the local conditions to which the statutes are applicable would be necessary. Further, there are certain important matters of fact which are in dispute. Thus the defender denies that a table of rates was ever adjusted and approved by the Commissioners, while the pursuer's case to a large extent rests upon the averment that that was in fact done. Again, the pursuer seeks to have it declared that she is entitled to levy the dues which she specifies, both in respect of Temple Pier and Abriachan Pier. The defender, however, avers that dues have never been levied at Abriachan, and the table of rates of 1870 bears to be for Temple Pier only.

It therefore seems tome that the safe course to adopt is to allow a proof before answer without disposing of any of the pleas at this stage.”

On 26th September 1905 the Lord Ordinary (Low) assoilzied the defender from the conclusions of the summons.

Opinion.—“The provisions of the 58th and 59th sections of the Act of 1804 seem to

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me to show that the policy of the Act was to induce the owners of lands through which the Caledonian Canal passed to construct at their own expense such wharfs or landing places as might be necessary to render it fully available for the various districts which it was intended to serve. The provisions of the 58th section, however, in regard to the rates and duties which might he levied at such wharfs or landing places were so vague, and left the position of a landowner who might build a wharf so uncertain, that up to 1856 no landowner had taken advantage of the section, nor had the Commissioners, under the powers conferred upon them by the 59th section, called upon any landowner to do so.

In 1856, however, Lord Seafleld commenced the erection of Temple Pier. The circumstances under which he did so were these—A pier at Temple was very much needed for the Urquhart district, which forms part of the Seafleld estates. The Canal Commissioners were not financially in a position to build the pier, and accordingly Lord Seafleld ultimately resolved to do so himself. The matter was carried through by Mr Bruce, the commissioner upon the Seafleld estates. That gentleman seems to have taken the view that under the 58th section a landowner who built a pier was entitled to fix the rates and duties subject to a power of alteration by the Canal Commissioners. He accordingly proposed, before building the pier, to obtain the approval of the Commissioners to a table of rates of an amount which, while not checking trade, would remunerate Lord Seafleld for his outlay and enable him to maintain the pier. His idea was that if such a table was approved by the Commissioners before the pier was built, the rates would not be likely to he subsequently reduced by the Commissioners, and Lord Seafleld might proceed to build the pier with a reasonable certainty that he would not be out of pocket, A table of rates was accordingly prepared and sent to the Commissioners, and although there is nothing to show that they formally approved of it, it was put in force when the pier was built and has been in use ever since.

The construction of Temple Pier was commenced in 1856 and was completed early in 1857. At that time the Commissioners were preparing to apply to Parliament for additional powers, and it naturally occurred to them that the opportunity should be taken to have the difficulties which had arisen in regard to the 58th section of the Act of 1804 cleared up. It was at first proposed to insert fe clause in the Bill dealing specially with Temple Pier—transferring it, I understand, to the Commissioners—but Lord Seafleld objected to the proposed clause, and it was accordingly dropped and two clauses substituted, which became sections 3 and 4 of the Act of 1857. The 3rd section empowered the Commissioners to levy rates upon passengers, goods, animals, and carriages landed or shipped at piers or jetties belonging to them, not exceeding the rates specified in the annexed schedule. By the 4th section the Commissioners were empowered to enter into contracts and agreements with the owners of lands who had erected piers, jetties, or landing places, ‘with respect to the management and maintenance of such piers, jetties or landing places, and the levying and receiving of rates thereat not exceeding the rates specified in the schedule hereunto annexed.’

I take it that the latter section was intended to supply what had been omitted in the Act of 1804. By the 58th section of that Act the rates and duties to be levied at landing places built by a landowner were declared to be vested in him ‘subject to the powers herein contained for the said Commissioners to limit, ascertain, and make regulations of and concerning such rates of wharfage.’ No such powers were, however, in fact, conferred by the Act. The result was to render the 58th section incomplete, and the object of the 4th section of the Act of 1857 was to supply the defect in the Act of 1804, and to define the powers of the Commissioners for the purposes of the 58th section in regard to rates of wharfage.

Accordingly it seems to me that the 58th section of the Act of 1804 must be read along with the 4th section of the Act of 1857, the latter section containing the powers to the Commissioners in regard to the rates of wharfage referred to in the former section. The result of the two sections read together appears to me to be as follows:—(1) A landowner is authorised to erect a pier of the nature of those in question; (2) the Commissioners are authorised to make an agreement with the landowners in respect to the levying and receiving of rates thereat; (3) such rates are vested in the landowner; and (4) they shall not exceed the rates specified in the schedule to the Act of 1857.

The position taken up by the pursuer is that a landowner who builds a pier at his own expense upon his own land can do what he likes with it, and if he chooses to allow the public to use it can fix his own terms. The only qualification of that right, it was argued, was that the Canal Commissioners were empowered to regulate the rates to be charged; and it was contended that they had in fact done so by having all along recognised the rates contained in the table prepared in 1856. That being so, no third party had a right to object to the rates.

I cannot assent to the view that a pier built under the 58th section is under the absolute control of the landowner, except in so far as the Commissioners have right to regulate the rates. The 58th, 59th, and 62nd sections of the Act of 1804 seem to me to make it plain that a pier built under the 58th section is a public pier, for the service of the navigation, which the public are entitled to use, and for the use of which the landowner can only charge such rates as are authorised by the statutes and agreed to by the Commissioners.

That being so, it is not for this Court,

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at all events in the first instance, to fix what rates the owner of such a pier is to be allowed to charge. That is a matter to be settled by agreement between him and the Commissioners acting within the limits imposed by the statutes. I have therefore some doubts as to the competency of the action.

The question raised, however, is as to the legality of a particular rate which the pursuer has been in the habit of charging, and which she desires to continue to charge, and as that is a question upon the construction of the statutes, perhaps I am bound to express my opinion upon it. The table of rates of 1856, besides rates for goods and passengers landed or shipped, contained a tonnage rate upon all vessels touching at the pier. The defender Mr MacBrayne, who has a number of steamers upon the Canal, objected to pay the tonnage rates, and accordingly the pursuer brought this action to have her right to do so declared. The Canal Commissioners have been called as defenders, but they have not entered appearance, so I suppose it may be taken that so far as they are concerned they are willing that the tonnage rates in question should be levied by the pursuer.

I am of opinion, however, that the statutes do not authorise tonnage rates upon vessels to be levied at piers built under the 58th section. The fourth section of the Act of 1857 only authorises rates not exceeding those in the annexed schedule to be levied at such piers, and the schedule contains no tonnage rate upon vessels.

It was said that by subsequent Acts the Commissioners were authorised to charge tonnage rates. That may be so, but no authority is given to the Commissioners to agree to such rates being levied at piers built under the 58th section. There is no reference whatever in the statutes to such piers after the 4th section of the Act of 1857, and under that section the rates which may be levied are limited to those specified in the annexed schedule.

I am therefore of opinion that the pursuer is not entitled to decree.”

The pursuer reclaimed, and argued —Section 58 of the Act of 1804 conferred a power on the owner of wharves to levy rates and duties. The power had not been superseded by the Act of 1857. That Act also allowed the Commissioners to enter into agreements with the owners of private piers as to levying rates. The Commissioners had power to levy tonnage dues (2d. per ton) on vessels landing or receiving passengers or goods—Act of 1860 (section 10) —and they might agree to such rates being levied by owners of private piers. That had happened here. The Commissioners were to apportion the rate payable and to charge it partly on the vessel (tonnage rate) and partly on the goods (wharfage rate)—Act of 1860, section 16. There was no such distinction between wharfage and tonnage dues in the Acts cited as the respondent maintained. The rates chargeable were not limited to wharfage rates—Act of 1804, section 41. The reclaimer was entitled to be paid for the use of her pier per ton of ship's burden and per ton of goods landed. On the construction of section 58 reference was made to Maxwell on the Interpretation of Statutes (1905 ed.), pp. 534–6; and to Hardcastle on Statutory Law (1901 ed.), p. 124.

Argued for respondent—The right, if any, conferred on the owners of private piers was a right to levy wharfage dues. Section 58 of the 1804 Act contemplated a rate on goods landed, i.e., a “wharfage” rate. In shipping circles “wharfage dues” meant charges on goods landed on wharves or piers. That was the meaning of the word in the opinion of Lord Mansfield— Stephen v. Costor, June 10, 1763, 3 Burrow's Rep. 1409, at p. 1415. The rates sanctioned by the 1857 Act were the rates specified in the schedule thereto appended. The “tonnage” rates contended for were not in the schedule. There was a clear distinction in the Acts cited between the powers of the Commissioners to levy rates and those of private owners. The power to levy rates which section 58 assumed had been conferred was not in fact conferred by that Act. A “wharfage” rate could not be imposed on a ship bringing goods to a pier any more than on a porter who carried them off the pier after being landed. The pursuer was not entitled to the declarator craved.

At advising—