Scottish Court of Session Decisions

On 12th May 1908 the Pedrus Steamship Company, Limited, registered owners of the steamship “Trieste,” raised an action against the Burntisland Harbour Commissioners concluding for ( a) declarator ( First), “that the defenders are not entitled for the purpose, or to the effect, of giving precedence in loading to any other vessel, whether trading regularly with the port of Burntisland or not, to remove or cause to be removed from any berth in the harbour of Burntisland, where she has been duly berthed for loading, a steamer which is ready to take in cargo, and whose cargo is on the quay or in the dock sidings, until her loading is completed, provided such loading is continuously proceeded with: Or otherwise ( Second),… that the defenders are not entitled for the purpose, or to the effect, of giving precedence in loading to any vessel trading regularly with the port of Burntisland, to remove or cause to be removed from any berth where she has been duly berthed for loading in the harbour of Burntisland, a steamer which is ready to take in cargo, and whose cargo is on the quay or in the dock sidings, until her loading is completed, provided such loading is continuously proceeded with, unless the defenders shall, previously to said berth being taken up by such steamer, have specially reserved or set aside said berth for the accommodation of a vessel or vessels trading regularly with said port, in terms of bye-law 10 of the bye-laws enacted by the Burntisland Harbour Commissioners for the regulation of Burntisland Harbour, pursuant to the Harbour, Docks, and Piers Clauses Act 1847, dated 27th May 1902, and approved of and confirmed by the Sheriff-Substitute of Fife and Kinross on 10th September 1902: ( Third) ,… that the defenders had not, as at 18th November 1907, specially reserved or set aside for the accommodation of any steamer or other vessel trading regularly with said port, in the sense of bye-law 10 of said bye-laws, the berth in said harbour of Burntisland at which the pursuers' steamship ‘Trieste’ was then lying, duly berthed for loading and ready to take in her cargo, which was then on the quay; and that the defenders were not entitled at said date to remove or cause to be removed the pursuers' said steamship from said berth for the purpose and to the effect of giving precedence in loading to the steamship ‘Harpalus’: And ( Fourth),… that the pursuers' said steamer was unwarrantably and illegally removed by the defenders' harbour-master from said berth to give precedence to said steamship ‘Harpalus,’ and that the defenders are liable to the pursuers for the loss occasioned to the pursuers thereby,” and ( b) payment of the sum of £55.

The pursuers averred—“(Cond. 2) On 18th November 1907 the steamer ‘Trieste’ obtained from the harbour officials, who are the servants of the defenders, a berth at Burntisland Harbour to enable her to load a cargo of coals, which was then on the quay alongside the berth awaiting shipment in the said steamer. The ‘Trieste’ had started to load her cargo when she was ordered by the harbour-master, for whom the defenders are responsible, to vacate the berth in order to allow the steamship ‘Harpalus’ of London into the berth. In terms of the bye-laws of the defenders, those in charge of the ‘Trieste’ were bound to obey the harbour-master's orders, and they accordingly acted as instructed by him. (Cond. 3) Owing to this action of the defenders' harbour-master, the ‘Trieste’ was detained at Burntisland Harbour until the ‘Harpalus’ had finished her loading, when the ‘Trieste’ again got into her berth and finished her loading. This caused a detention of two days, and resulted in loss and damage to the pursuers to an amount not less than the sum sued for. (Cond. 4)

… The defenders' harbour-master was not entitled under said bye-laws to require the pursuers' vessel to be removed from said berth. Under the eleventh bye-law referred to she was entitled to remain at said berth until her loading was completed, whether or not any reservation of said berth had been made in favour of the said s.s. ‘Harpalus.’ In any event, no such reservation had been made by the defenders in the sense of bye-law 10. Further, no intimation was given to the master of the s.s. ‘Trieste’ when she was put into her loading berth by order of the harbour-master that the berth was reserved or set aside or would be required for the ‘Harpalus’ or other steamer; nor was the loading berth proffered to the master of the ‘Trieste’ on condition that he should vacate it in favour of the ‘Harpalus,’ or other steamer, if such should arrive before the ‘Trieste’ had finished loading. With reference to the statement in answer, it is denied that it is in the interest of the coal trade to carry on the present practice at said harbour. Preference is given to certain steamers, with the result that all the other steamers frequenting the port are placed at a disadvantage, and their arrangements for loading and discharging dislocated, by the uncertainty as to their being allowed to occupy any of the berths in said harbour for the period sufficient to enable them to complete their loading or discharge. The defenders originally by notice set aside one particular berth at which preference was given to certain steamers, but they subsequently altered this system without intimation to any of the traders, who now find that they may be ordered to leave any berth in the harbour while they are in the course of loading and discharging, although no notice has been intimated or published by the defenders to the effect that all berths are reserved. With reference to the amendments of the defenders added after the proof, it is admitted that prior to November 1903 the defenders set aside No. 5

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berth in the East Dock for regular traders. Denied that the arrangement was altered at the request of the shipping agents at Burntisland. The instructions given to the harbour-master are referred to for their terms. Explained that the said instructions were never published or in any way communicated to the pursuers and other traders. Admitted that the ‘Trieste’ was loading at berth No. 6 upon the occasion in question, and that Nos. 4 and 5 were occupied by non-regular traders, and that the ‘Trieste’ was at the time the last nonregular trader to barth, and that no regular trader was in the East Dock, Quoad ultra the statements in the said amendments are denied.”

The defenders averred—“(Ans. 4) … Explained that the ‘Harpalus’ was a steamer trading regularly with the port, and that the defenders prior to November 1903 set aside No. 5 berth in the East Dock as a berth for regular traders. In November 1903 they altered this arrangement at the request of the shipping agents in Burntisland, and gave the following instruction to the harbour-master—‘ In place of No. 5 hoist (East Dock) being solely set apart as a preference berth, that either Nos. 4, 5, or 6, be made use of accordingly, and that the last steamer on turn in the East Dock be turned out of its berth to give place to the preference boat, always provided that only one regular trader at a time is to be entitled to be put into a preference berth.’ The berth at which the ‘Trieste,’ which is not a regular trader, was loading when she was ordered to vacate it, was berth No. 6, and as berths Nos. 4 and 5 were then occupied by nonregular traders, and the ‘Trieste’at the time was the last non-regular trader to berth, and no regular trader was in the East Dock, she was liable to be turned out to make way for a regular trader. And the other berths in the docks suitable for the loading of coal were and are specially reserved and set aside for the accomodation of steamers or other vessels trading regularly with the port. Explained further that the owners and master of the ‘Trieste,’ or their agents at Burntisland, were well aware that her loading, at whatever berth she was stationed, was liable to be interrupted by the arrival of a steamer trading regularly with the port, and they accepted the berth on that footing. It is desirable in the interests of the coal trade generally that steamers trading regularly should have on arrival immediate access to berths.”

[The deletions (underlined) were made and the passages in italics added at amendment mentioned infra.]

On 15th and 16th December 1908 proof was led, the import of which appears from the opinion of the Lord Ordinary infra. On 16th December the defenders lodged a minute of amendment craving leave to amend answer 4 to the effect indicated supra, and on 22nd December the pursuers lodged a minute craving leave to add the italicised passage to condescendence 4.

The Lord Ordinary ( Salvesen) pronounced an interlocutor bearing date 16th December 1908 in these terms—“The Lord Ordinary having taken the proof and heard counsel, opens up the record; allows the defenders to amend the record in terms of minute No. 101 of process, and the pursuers to answer same in terms of their answers No. 102 of process, and this having been done, of new closes the record, reserves all questions of expenses caused by said amendment, and makes avizandum.”

By interlocutor dated 7th January 1909 the Lord Ordinary assoilzied the defenders.

Opinion.—“This case raises an important question relating to the regulation of traffic in Burntisland Harbour. The facts are not in dispute, and may be briefly summarised.

The steamer ‘Trieste,’ belonging to the pursuers, obtained, at 3 a.m. on 18th November 1907, a berth at Burntisland Harbour to enable her to load a cargo of coal, which was then on the quay alongside the berth awaiting shipment. She had loaded a considerable proportion of her cargo when the harbour-master ordered her out of her berth at noon to let the steamer ‘Harpalus’ into the berth; and she did not get into a berth until 5.30 a.m. on the 19th. The loading of the ‘Trieste’ then proceeded continuously until it was finished at 4.20 a.m. on the 20th. But for the interruption she would have completed her loading and been ready to sail at first high water on Tuesday the 19th, whereas she was not able to sail until about noon on the Wednesday. She was bound for Kiel, where she arrived the following Monday, the 25th of November, at 9 p.m. Under her charter-party she fell to be discharged at the rate of 400 tons per day; and as she carried some 2170 tons of cargo her discharging days did not expire until the following Monday forenoon. Had she been loaded on the morning of the Tuesday the 19th of November she would in all probability have arrived fully a day earlier and have saved the week end. The pursuers accordingly claim the sum of £55 as the extra expense they incurred and the profit they lost in consequence of the vessel's detention due to the ‘Harpalus’ having been given a preference in the matter of loading.

The traffic of the port of Burntisland is carried on under bye-laws enacted by the Burntisland Harbour Commissioners, and confirmed by the Sheriff-Substitute of Fife and Kinross. These bye-laws have been in existence since 1902. There are two docks, each containing three loading berths and three coal hoists, so that six vessels can load coal at the same time. Only the East Dock, however (which is the more recent of the two), has sufficient depth of water to accommodate vessels carrying 2000 tons cargo or upwards. As the ‘Trieste’ was a vessel of this kind, the East Dock was the only one where she could load her cargo. By bye-law 10 the Commissioners are specially empowered to set aside for the accommodation of steamers or other vessels trading regularly with the port any berth or berths in the docks. This power they

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exercised at first by reserving a berth No. 5 of the East Dock (the berths there being numbered 4, 5, and 6), for the accommodation of regular traders. Other vessels were admitted into this berth when it was not actually occupied by preference boats, but as soon as the preference boat arrived the non-regular trader was turned out of the berth until the loading of the preference boat was completed. The local agents of the vessels frequenting the port were duly notified that No. 5 was to be treated as a preference berth; and they accepted the berth when vacant for their clients on the footing that the non-regular trader was liable to be displaced at any moment on the arrival of a preference steamer.

The reservation of a particular berth for preference steamers was found in some cases to create hardship. It might happen that three steamers, all non-regular traders, were occupying the berths in the East Dock at the time when a preference steamer arrived; and the vessel which was loading at No. 5 might be the first in turn. In such circumstances it appeared to be a hardship that that vessel should be displaced, and that the other two, which had arrived after her, should be permitted to finish their loading without interruption, more especially as in the ordinary case the vessel which had arrived first might be assumed to have got more of her cargo than the subsequent arrivals. Accordingly, the Harbour Commissioners, at the instance of the shipping agents in Burntisland, agreed to make an alteration of this system, and substituted the present system, under which the berth at which the last-arrived vessel of the three loading in the East Dock happens to be lying is treated as the preference berth. Under this system the latest arrival is liable at any time to be displaced from a loading berth, whether she is loading at Nos. 4, 5, or 6, whenever a berth is wanted for a preference steamer. On the other hand, as soon as another vessel has got a berth after her, she is secured against interruption so long as her own cargo is coming continuously forward. The pursuers' witnesses favour a return to the old practice on the ground that if a vessel was loading at No. 4 or No. 6 berth she was never liable to be displaced; whereas they say there is greater uncertainty now, as any one of the berths may in turn be treated as the preference berth. The uncertainty, however, is not really materially greater under the present system; and it has this advantage over the other, that it secures that all the cranes in the East Dock shall be continuously used; for if a vessel's loading was almost completed at No. 4 or No. 6 berth, it might be to the advantage of the next vessel in turn rather to wait for one of these becoming vacant than to go into No. 5 with the risk of being displaced whenever a preference steamer arrived. It follows, I think, that the new practice must be in the general interest of the steamers frequenting the port; and, on the whole, is not liable to create more hardship in individual cases than the old system.

The pursuers' claim is based, in the first instance, on the view that it was illegal under the bye-laws for the defenders' harbour-master to displace the ‘Trieste’ in favour of the ‘Harpalus’ after the ‘Trieste’ had commenced loading and had the rest of her cargo available. This contention is founded on the 11th bye-law, which provides as follows:—[ Bis Lordship quoted the 11 th bye-law, supra in rubric.] Under this bye-law the pursuers contend that it is an absolute rule that no vessel already in berth shall be removed therefrom until loaded if her cargo is on the quay or in the dock sidings; and if so the ‘Trieste’ was undoubtedly improperly removed. According to this construction of the bye-law, the only right that the preference steamer would have would be to get into the first berth that became vacant after her arrival, although there might be other vessels in turn before her.

I am unable to accept the pursuers' construction. Bye-law 11 appears to be primarily concerned with the preference to be given to steamers over sailing ships. When a berth becomes vacant the steamer first in turn is entitled to this berth, although there may be several sailing ships in turn before her which are equally ready for loading. If the sailing vessel, however, is already in berth, she is not to be removed until loaded if her cargo is on the quay or in the dock sidings. The counterpart of this provision is, that while the Commissioners may set aside one of the berths for the accommodation of sailers, at which berth sailing vessels are to take their turn for loading, nevertheless a steamer which has been admitted into this berth shall be allowed to occupy it until her loading is completed if it can be continuously proceeded with, although a sailing ship may arrive which, but for the fact that the berth was already occupied, would have the first claim to it. It may be that the bye-law cannot be construed as applying to sailing ships only in their relation to steamers, otherwise there would seem to be no reason why the word ‘vessel’ should not have been described as sailing vessel; but in any event it is plain that it falls to be qualified, in the case of steamers, by the reserved power of the Commissioners to set aside a berth or berths for the accommodation of regular traders. Under the old system where a particular berth was so set aside there was no difficulty in harmonising these two bye-laws, for the nonregular trader which was admitted into berth 5 was so admitted on the implied condition that she must leave it as soon as a regular trader arrived if she had not previously completed her loading. Under the present system I do not think there is any greater difficulty. The three berths in the new dock are all set aside as preference berths to be used as such, one at a time; and the non-regular trader is therefore admitted into a berth only on the implied condition that she vacates it if she happens to be the last boat on turn which is loading when a preference steamer arrives. It was contended that the right reserved to

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the Commissioners of setting aside any berth or berths in the docks for the accommodation of regular traders did not entitle them to set aside all the berths for that purpose. I think that is probably true; but at the worst for the defenders they have only set aside three out of the six berths available for loading coal cargoes as preference berths; and it seems to me that their action cannot be declared illegal simply because it happens that the three particular berths reserved are the only berths at which vessels of the draught of the ‘Trieste’ can load.

“The alternative ground upon which the pursuers base their claim proceeds upon the view that the only legal way by which the reserved power contained in bye-law 10 can be exercised is by setting aside special berths for the accommodation of preference boats. According to this contention, the Commissioners might have excluded the non-regular traders entirely from two of the three berths in the East Dock, but were not entitled to make each of these in turn a preference berth, on the principle of selection already explained. I have already sufficiently indicated the grounds upon which I reject this contention, and I think it would be unfortunate for non-regular traders as a whole if it were given effect to. The system which the defenders have now adopted is the one which in my opinion causes least disadvantage to the non-regular traders, consistently with the exercise of the powers which the defenders admittedly have. I do not propose to discuss the vexed question whether it is fair that any preference should he given, because under the existing bye-laws the power to give such a preference is expressly conferred; but as the amount of coal shipped from Burntisland in preference steamers is about fifteen per cent. of the total shipments, it does not seem unreasonable that one berth out of six should be reserved for preference steamers; although in individual cases affecting vessels of large tonnage the preference may give rise to considerable hardship. On the whole matter I am of opinion that the defenders did not act ultra vires in directing the removal of the ‘Trieste’ from the berth at which she was loading so as to accommodate the ‘Harpalus,’ and that they are entitled to be assoilzied from the conclusions of the action.”

The pursuers reclaimed against the interlocutor of 7th January 1909. The record appended to the reclaiming note did not contain the amendments, but was printed as it originally stood. The interlocutors appended to the reclaiming note did not include the one bearing date 16th December, but did include one dated 15th December whereby the Lord Ordinary made avizandum, but which, it appeared, was never pronounced.

When the case was called in the Short Roll the respondents objected to the competency of the reclaiming note on the ground that the amendments and the interlocutor allowing them had not been printed. It was admitted at the bar that the interlocutor bearing date 16th December 1909 was in point of fact not signed till the 22nd or 23rd, when both minutes of amendment were in process; and that the amendments were not written on the process copy of the closed record till after the reclaiming note had been boxed.

Argued for the respondents—The provisions of the Judicature Act 1825 (6 Geo. IV, cap. 120), section 18, and of the Act of Sederunt 11th July 1828, section 77, requiring the record to be boxed as authenticated by the Lord Ordinary, were imperative— Williamson v. Howard, May 18, 1899, 1 F. 864, 36 S.L.R. 645; Wallace v. Braid, February 16, 1899, 1 P. 575, 36 S.L.R. 419; M'Evoy v. Braes’ Trustees, January 16, 1891, 18 R. 417, 28 S.L.R. 276; Muir v. Muir, October 17, 1874, 2 R. 26, 12 S.L.R. 11; Carter v. Johnston, February 6, 1847, 9 D. 598. The circumstances here did not bring the case within the exception given effect to in Montgomerie & Company v. Young Brothers, January 21, 1904, 6 F. 340, 41 S.L.R. 241. In that case the amendment was made at the bar and not reduced to writing. The interlocutor allowing the amendment did not state what the amendment was, and therefore it was necessary that it should be written on the process copy of the record and on the summons before the interlocutor was pronounced. Here, however, the interlocutor allowed amendment in terms of minutes which were in process, and the effect of that was to import the amendments into the record without the necessity of writing them on the record at all. Further, the reclaimers had not printed the interlocutor of 16th December which authenticated the record as amended. Though, no doubt, that was not necessary where the record as amended was printed— Fisken v. Fisken, October 20, 1900, 3 F. 7, 38 S.L.R. 4.—if the reclaimers printed neither the amendments nor the interlocutor authenticating them then the reclaiming note was incompetent. The objection to the competency could be taken in the Short Roll— Williamson v. Howard, cit.

Argued for the reclaimers—The case fell within the rule in Montgomerie & Company v. Young Brothers, cit. The record was never amended, and the reclaimers therefore were bound to print it without the alleged amendments. It did not matter whether the amendment was made verbally at the. bar or was embodied in a minute lodged in process; there was no amendment made till it was written on the record, and that must be done when the interlocutor allowing amendment was pronounced. Substantial compliance with the statutory provisions was all that was demanded— Adam v. Adam's Trustees, March 20, 1903, 5 F. 863, 40 S.L.R. 598,—but the reclaimers here had exactly carried out the directions of the statute. It was not necessary to print the interlocutor allowing the amendment— Fisken v. Fisken, cit. Further, that interlocutor referred to a minute which was not lodged till some days after the date of the interlocutor. In that view also there was no amendment

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and there was no interlocutor allowing it. In any event the objection to the competency of the reclaiming note could only be taken in the Single Bills, and was so taken in the cases cited by the respondents. That was the general rule with regard to objections to competency— per Lord M'Laren in Hillhouse v. Walker, November 3, 1891, 19 R. 47, 29 S.L.R. 85.

Lord Justice-Clerk—This case is in an unfortunate position, due, as it seems, to mistakes on the part of everybody connected with it. It is conceded now that one of the interlocutors printed by the reclaimers is an interlocutor which was never pronounced. Then it is also satisfactorily made out, and not denied, that the interlocutor which bears to be dated 16th December could not have been signed earlier than the 22nd or 23rd of that month, and that interlocutor is not printed at all by the reclaimers.

Now that, to begin with, presents a most unfortunate state of things, in which it would be extremely likely that mistakes would be made, and a party who made a blunder in presenting a reclaiming note would be very little to blame for it.

I shall assume that the Lord Ordinary's interlocutor, which is said to be of date 16th December 1908, was in fact pronounced on that date. The Lord Ordinary thereby opens up the record and allows the defenders to amend the record in terms of minute No. 101 of process. He assumes that that has been done, and of new closes the record. I leave out of view all question about the answers to the amendment, because it is not necessary to consider anything more than the minute of amendment.

Now what is it that the Lord Ordinary allows to be done? He allows some action to be taken by the defenders to amend the record, provided they do it in terms of the minute which was lodged. That means simply that he ties them up to its terms, sees the amendment they are to put on, and opens up the record to allow them to put it on. They do not do it; nothing is done to the record at all; they take no action whatever. But after a judgment has been pronounced (whether they believed that this amendment was on or not I do not think matters), and after a reclaiming note has been presented they for the first time come forward and write their amendment on the record.

Now it is clear as I think that until that amendment was made upon the record there was no amendment which the party taking the reclaiming note was bound to print.

It is said by Mr Cooper that the putting in of a minute of amendment is the same thing as the amendment of the record which the Lord Ordinary allowed. That might be so. I think possibly the Lord Ordinary in the case of a very long minute of amendment might so express his interlocutor as to import into the record what was said in the minute without its being required to be written upon the principal copy. It is not necessary to consider what the terms of such an interlocutor should be, but I do not think it would be impossible for that to be done. But that is not what was done here. What the Lord Ordinary did here was to open the record, and give authority to amend that record, which it is quite plain was not done at the date of the interlocutor reclaimed against.

Now I think this case comes practically to be ruled by the cases of Montgomerie ( 6 F. 340) and Fisken ( 3 F. 7). In the first case the objection taken was that at the date of the signing of the interlocutor reclaimed against there was nothing on the record to indicate that the amendment had been made. Now what more is there here? It is admitted that the amendment was not written on the principal copy of the record until some days after the reclaiming note was boxed. Whether it was written on the day after or fifty days after does not matter; it was not placed on the record so as to put the party reclaiming into the position of having to print it as part of the record. That seems to me to be conclusive upon that matter.

But then we have the case of Fisken ( 3 F. 7) upon the question whether the interlocutor allowing the amendment and closing the record required to be printed.

I assume in what I am going to say upon this matter that the interlocutor was duly pronounced on the date that it bears. I think the case of Fisken plainly decides that it is not necessary that the interlocutor should be printed. That the Judicature Act 1825 does not require the interlocutor to be printed is the opinion of Lord Trayner, concurred in by Lord Moncreiff and myself. Without going into more detail upon that case I think it disposes of the second question—whether the failure to print the interlocutor is fatal to the reclaiming note.

I am of opinion that the objections raised to the reclaiming note are not well founded, and must be repelled.

Lord Low—I am of the same opinion.

I think with your Lordship that this case is ruled by the decision in the case of Montgomerie ( 6 F. 340). Mr Cooper tried to draw a distinction between that case and the present, in respect that in the present case the terms of the amendment were stated in the minute, while in that case they were stated at the bar, I suppose for the reason that the amendment there was a trifling one. I do not think that is any distinction at all, because I take it that the only reason why a minute is offered and is generally required is that—unless the amendment is very trifling or merely verbal—it is desirable that the precise terms of the proposed amendment should be before the Court and before the other side.

But whether the amendment is allowed as proposed verbally by counsel at the bar, or is allowed in terms of a minute which has been lodged, it is not the allowance of the amendment which actually makes the amendment, but the putting of it on the record. That was the ground upon which

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it was held in Montgomerie's case that it was sufficient compliance with the Act of Parliament and the Act of Sederunt to print the record without the amendment, because although the amendment had been allowed it had not in fact been added to the record at the date of the interlocutor reclaimed against. That is exactly the case here, assuming the amendment was properly allowed. On that assumption it was not in fact made by being added to the record before the date of the interlocutor reclaimed against. I think the case of Montgomerie is clearly in point.

As regards the other question, whether it is imperative to print the interlocutor, I think that matter was settled, and I have no doubt rightly settled, in the case of Fisken ( 3 P. 7).

Lord Ardwadl—I agree with both your Lordships. I wish to say that there is another question, which it is not necessary to decide at present but which will require some day to be considered, that is, whether it would not be well that a rule be laid down to the effect that objections of a purely technical nature such as this should be taken in the Single Bills, and if not taken there should not be allowed at all.

Lord Dundas—The variety of blunders in this case has been extensive and peculiar. But I think that the course proposed will meet the justice of the matter, that it is in accordance with the authorities which have been referred to, and that it will do no violence to the salutary rules which exist for the enforcement of proper pleading.

The Court repelled the objection, and thereafter allowed the record to be amended as indicated supra, and counsel were then heard on the merits.

Argued for the reclaimers (pursuers)—The preference was not to be extended beyond what a strict reading of the byelaws justified. The system inaugurated in 1903 was ultra vires of the powers conferred by the 10th bye-law. That system involved either the reservation of the whole dock, which was incompetent— Macbeth v. Ashley, April 17, 1874, 1 R. (H.L.) 14, 11 S.L.R. 487—or that no berth was specially reserved, in which case it was incompetent to turn any steamer out if she had got a berth and was continuously loading. There was no reservation as contemplated by the 10th bye-law unless it was always possible for a steamer to know from which berth she was liable to be turned out. In any event, even if the new system was a good exercise of the power conferred by the 10th bye-law, the bye-laws as a whole, and No. 11 in particular, made it illegal to turn a steamer out of a berth before she had finished loading, if her cargo was on the quay or in the dock sidings. If the proviso to that effect in the 11th bye-law was meant to apply only to sailing vessels, the expression “sailing vessel” would have been used, as was done elsewhere in the bye-laws where sailing vessel was meant. That was not inconsistent with the reservation of a berth for regular traders, for any regular trader would be entitled to the first vacant berth, though there were non-regular traders waiting which had arrived first.

Argued for the respondents (defenders)—The system in question was within the power conferred by the 10th bye-law. The discretion given to the Commissioners was very wide, and there would have been no incompetency in selecting a different berth as the preference berth every day. That was the same in principle as the effect of the system introduced in 1903. The Commissioners had not reserved all the berths in the East Dock, because there was also a proviso that only one regular trader at a time should have a preference berth. So long as there never were two preference berths at one time—and there never could be under the new system—the Commissioners were not exceeding their powers. There was no difficulty in ascertaining at any given time which was the preference berth. The construction contended for by the reclaimers of bye-law No. 11 was wrong. It was clear that that section was dealing with the rights of sailing vessels and steamers inter se, and in any event it could not modify the power conferred in bye-law 10 in the way the reclaimers argued.

At advising—