Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 49

 

P1424/15

OPINION OF LORD BURNS

In the cause

PETROINEOS MANUFACTURING SCOTLAND LIMITED, a company incorporated under the Companies Acts and having its registered office at Bo’ness Road, Grangemouth, Stirlingshire

Petitioners

against

(FIRST) CLYDEPORT OPERATIONS LIMITED, a company incorporated under the law of Scotland and having its registered office at 16 Robertson Street, Glasgow, G2 8DS

Respondents

DS-RENDITE-FONDS Nr 108 VLCC Ashna GmbH and Co Tankschiff KG, having a place of business at Stockholmer Allee 53, 44269 Dortmund, Germany

First Interested Party

QUEEN'S HARBOUR MASTER FOR THE CLYDE DOCKYARD PORT OF GARELOCH AND LOCH LONG

Second Interested Party

Petitioner:  O’Neill QC, MacGregor;  Brodies LLP

Respondent:  Howie QC, Hawkes;  Weightmans (Scotland) LLP

First Interested Party:  MacColl;  Mackinnons

Second Interested Party:  Johnston QC, Komorowski;  Office of the Advocate General

23 March 2017

Background

[1]        The petitioners are the time charterers of the “Mt Ashna” (the vessel).  On 24 November 2014 the vessel proceeded up the Firth of Clyde thereby incurring charges levied by the respondents as the statutory Port Authority, for both her inward and outward passages.  The respondents also levied conservancy charges in respect of those passages.   These have been paid by the petitioners. 

[2]        The vessel proceeded to moor at Finnart Oil Terminal (the terminal) in Loch Long which is operated by the petitioners.  While she remained there she was used as a floating storage unit.  She has now left.  The petitioners operate the terminal through which oil is pumped to Grangemouth.  The respondents have issued invoices in respect of conservancy charges in respect of the vessel for the period she remained at the terminal.  Those invoices were served first upon the vessel’s agents and subsequently upon the owners of the vessel who appear as the first interested party.  The petitioners accept responsibility for any such charges which are legitimately levied and have consigned a sum of approximately £2.8 million with the court in order that arrestments upon the vessel, placed on 7 December 2015, could be lifted. 

[3]        In this petition the petitioners seek, first, declarator that no further conservancy charges are payable by the vessel beyond those already levied by and paid to the respondents  in respect of her arrival and departure.  Second, the petitioners seek production and reduction of the purported schedule of arrestment served by the respondents in respect of the presence of the vessel at the terminal and for recall of that arrestment.  Further, the petitioners seek interdict against the respondents from selling or offering for sale the vessel further to that arrestment and for interim interdict. 

[4]        The respondents are the Port Authority for the Firth of Clyde and are the statutory successors of the Clyde Port Authority (CPA) which was established by the Clyde Port Authority Order Confirmation Act 1965 (the 1965 Order) as amended by the Clyde Port Authority Confirmation Act 1969 (the 1969 Act). 

[5]        The 1965 Order confirmed a Provisional Order made under the Private Legislation Procedure (Scotland) Act 1936.    It incorporated the provisions of the Harbours, Docks and Piers Clauses Act 1847 (the 1847 Act), apart from the sections specified in section 4(1) of the Order:

“so far as they are applicable for the purposes of, and are not inconsistent with or varied by this Order”.

 

[6]        Section 14 of the 1965 Order, as amended by the 1969 Act, defines the jurisdiction of the Port Authority as extending to the River and Firth of Clyde between the landward limits (west of the Albert Bridge in the City of Glasgow) and the seaward limits, running due east and west across the Firth of Clyde from the coast of Ayrshire to Corrygill point on the east coast of Arran and across the Kilbrannan Sound on the same latitude.  By section 14(2) the Port Authority exercise jurisdiction between the landward and seaward limits and “within all sea lochs and channels within the River and Firth of Clyde between the landward and seaward limits”.

[7]        Certain sections of the 1847 Act which are incorporated into the 1965 Order and of the 1965 Order itself (referred to in the 1847 Act as the special Act) require notice.

[8]        Section 99 of the 1847 Act provides as follows:

“Nothing in this or the special Act or any Act incorporated therewith contained shall extend to, alienate, defeat, vary, lessen, abrogate or prejudice any estate, right, title, interest, prerogative, royalty, jurisdiction, or authority, of or appertaining to the Queen’s most excellent Majesty, nor to abridge, vary, or abrogate any of the powers or authorities by law vested in the Admiralty, in the Commissioners of Her Majesty’s Customs and Excise or in the Crown Estate Commissioners, in relation to the possessions and land revenues of her Majesty in right of her crown or otherwise howsoever”. 

 

[9]        Section 100 of that Act provides as follows:

“Nothing in this or the special Act shall be deemed to extend to of affect any Act of Parliament relating to her Majesty’s duties of Customs or Excise, or any other revenue of the crown, or to extend to or affect any claim of her Majesty in right of her crown, or otherwise howsoever, or any proceedings at law or in equity by or on behalf of her Majesty, in any part of the United Kingdom of Great Britain and Ireland”. 

 

[10]      Section 118 of the 1965 Order provides as follows:

“Nothing in this Order shall affect prejudicially any estate, right, power, privilege, or exemption of the Crown and, in particular, nothing herein contained shall authorise the Port Authority to take, use, in any manner interfere with any portion of the shore or bed of the sea or of any river, channel creek, bay or estuary or any land, heritages, subjects or rights of whatsoever description belonging to Her Majesty in right of her crown and under the management of the Crown Estate Commissioners without the consent in writing of such commissioners on behalf of Her Majesty first had and obtained for that purpose”

 

 

The Clyde Dockyard Port of Gareloch and Loch Long

[11]      The Dockyard Ports Regulation Act 1865 (the 1865 Act) provides for the creation of dockyard ports and the appointment of a Queen’s Harbour Master in respect of such a port.  A dockyard port is any port, harbour, bay or navigable river on or near to which Her Majesty has any dock or dockyard.  By the Clyde Dockyard Port of Gareloch and Loch Long Order 1967 (the 1967 Order), a dockyard port was created at Gareloch and Loch Long.  In respect of Loch Long, the dockyard port extended north of latitude 56 degrees 00 minutes north.  It is within that area that the Finnart Oil Terminal is located.  The 1967 Order was revoked and replaced by the Clyde Dockyard Port of Gareloch and Loch Long Order 2011 (the 2011 Order). 

[12]      By section 5 of the 1865 Act, regulations can be made by Order in Council to regulate and control traffic within the dockyard port.  It further provides that regulations can be made “for such other purposes as from time to time see necessary with a view to the proper protection of Her Majesty’s vessels, dockyards or property or to the requirements of Her Majesty’s Naval Service”.  Section 7 provides for Orders in Council to make rules as to safe navigation within the dockyard port and the approaches thereto. 

[13]      The 2011 Order revoked the 1967 Order and made regulations under section 5 of the 1965 Act.  Those regulations are set out in Schedule 5.  For example, regulation 1 requires the master of every vessel and every other person within the limits of the dockyard port to comply with any direction given by the Queen’s Harbour Master for the purposes of “the proper protection of the dockyard port, Her Majesty’s vessels, dockyards or property or for the requirements of Her Majesty’s naval service”.            Rules made for the purposes of section 7 of the 1865 Act are contained in Schedule 6 and regulate inter alia the navigation of large vessels within the dockyard port.

[14]      Section 23 of the 1865 Act provides:

“Nothing in this Act shall prejudice, take away, abridge or alter any right of property, privilege or jurisdiction or any powers of conservancy held, possessed, enjoyed or exercised by any body or person in, to, upon or over any part of a dockyard port or of the shores and banks thereof”. 

 

[15]      The question raised by this petition is essentially whether the respondents have any statutory jurisdiction to levy conservancy charges in respect of the vessel over the period during which she lay at the terminal within the confines of the dockyard port.  The petitioners maintain that they do not, since acts of conservancy are rights of the Crown which are reserved to the Queen’s Harbour Master by the legislation creating the CPA and the dockyard port.

[16]      Two preliminary points were advanced by the respondents. 

 

1.  Title to Sue
[17]      The first is that the petitioners have no title to sue.  Mr Howie, on behalf of the respondents, submitted that the matter raised in the petition is one of private law in which the petitioners are seeking reduction of invoices issued by the respondents which they claim they ought not to have to pay.  The petitioners contend that there is an infraction of property rights of the Crown and thus require to demonstrate both title and interest to sue in such circumstances (see D and J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 at pages 12 and 13).  The petitioners, as the time charterers of the vessel, have no relationship with the respondents.  The 1965 Order provides that charges payable to the respondent “shall be payable by the owner of any vessel”.  The petitioners therefore have no right to challenge the invoices lawfully issued to the owners in respect of conservancy charges by judicial review.

[18]      Even if a public law issue is involved in this case, the petitioners cannot demonstrate a sufficient interest because they are not directly affected by the levying charges on the vessel. 

 

Discussion and Decision

[19]      The respondents’ approach focuses on a distinction between public and private law in judicial review and asserts that the issue between the petitioners and respondents in this case is, in essence, a private law dispute as to liability for conservancy charges levied.  Thus the test in Nicol (supra) should be applied.  However, as explained in Axa General Insurance Ltd. V Lord Advocate 2012 SC (UKSC) 122, the remedy of judicial review should be available when a petitioner asks the court “to supervise the actings of a public authority so as to ensure that it exercises its functions in accordance with the law” (see paragraph 159).  Lord Reed approved Lord President Hope’s statement at paragraph 8 of Eba v The Advocate General for Scotland 2012 SC (UKSC) 1 to the effect that, whenever there is an excess or abuse of power or jurisdiction which has been conferred on a decision maker, the Court of Session has power to correct it (see paragraph 169).  Even if the private rights of a petitioner are affected, where the court is asked to supervise an exercise of powers granted to a body created by Parliament, a different approach to standing is required and must be based on the concept of interest. 

[20]      In the present case the petitioners seek to invoke the supervisory jurisdiction of this court to decide whether or not the respondents have statutory power to make conservancy charges in respect of vessels within a particular locality of the Clyde estuary.  This seems to me to constitute a proper application for judicial review. The petitioners claim that the respondents are acting ultra vires in making such charges.  The respondents are a public body, created by statute and exercising powers conferred by statute.  These powers have the capacity to affect all vessels coming into a defined geographical area.  So long as the petitioners can demonstrate a sufficient interest in raising the challenge that they do, I consider that the dispute is one amenable to judicial review.

[21]      In Axa (supra) Lord Reed said at paragraph 170 that there must be considerations which lead the court to treat the applicant as having an interest which is sufficient to justify his bringing the application before the court.  What is to be regarded as sufficient interest depends upon the context and, in particular, upon what will best serve the purposes of judicial review in that context.

[22]      The petitioners are not the owners of the vessel but are the time charterers and, according to the information given to me by Mr O’Neill, have agreed with the owners and others that they will be liable to pay the conservancy charges which the respondents have levied.  According to statement 4 of the petition, the petitioners have consigned the sum of approximately £2.8 million with the court in respect of the charges.   It is also averred at statement 5 of the petition that, as time charterers, the petitioners’ interests have been interfered with by, inter alia, the arrestment of the vessel by the respondents.  Although it is correct, as Mr Howie submitted, that in terms of section 72 of the 1965 Order such charges are payable by the owners, the petitioners have contractual rights to use the vessel and have undertaken liability to pay the conservancy charges.  That, in my view, gives them a sufficient interest to advance this challenge to the respondents’ statutory powers to levy such charges.  The Inner House in Christian Institute v Scottish Ministers 2016 SC 47 at paragraph 40 stated that a very broad approach to standing should be taken in the light of the Supreme Courts observations in Axa (supra).  A petitioner must be able to show that he is “directly affected” by the matter in that he has a reasonable concern in it.  The petitioners have been directly affected in that the vessel which they charter was subject to arrestment by the respondents for non-payment of the charges and have consigned money into court as security for those charges.  The petitioners will have to pay the charges if the respondents are found entitled to levy them.  These circumstances, in my view, give them a sufficient interest to advance this petition. 

 

2.  Alternative Remedy

[23]      Mr Howie advanced a further argument to the effect that the petitioners had available to them an alternative remedy which precluded an application for Judicial Review.  This was given by section 31 of the Harbours Act 1964 which provides a right of objection to “ship, passenger and goods dues”.  Written objection to a charge can be made on various grounds set out in section 31(2) which provides:

“(2) Subject to subsections (10) to (12) below the provisions of subsections (3) to (6) below shall have effect where written objection to a charge to which this section applies imposed by a harbour authority at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing, is lodged with the Secretary of State”

 

[24]      Mr Howie contended that charges in respect of the exercise of conservancy powers were ship, passenger and goods dues in terms of section 57 of the 1964 Act.  Mr O’Neill did not contend that conservancy charges were not included within that definition. 

[25]      Section 31(2) goes on to provide that objection can be taken on a number of grounds including, firstly, that the charge ought not to have been imposed at all or that it ought to be imposed at a lower rate or, according to the circumstances, a specified class of ship, passenger or goods dues ought to be excluded from the scope of the charge either generally or in circumstances specified. 

[26]      It was argued that this provision ousted the supervisory jurisdiction of this court.  The general rule was that it is incompetent to have recourse to the Court of Session for a common law remedy where provision is made by statute for a statutory form of review and recourse has not been made to it (see British Railways Board v Glasgow Corporation 1976 SC 224 at 237).  That rule has been followed in a number of subsequent cases including McGeoch v Scottish Legal Aid Board 2013 SLT 183 and McCue v Glasgow City Council 2014 SLT 891.  The remedy available under section 31 is wide enough to deal with the present complaint, since the procedure allows a decision to be made that the charge should not be imposed at all or the conservancy charge in particular ought to be excluded from the scope of the charges made by the respondents.  In providing this remedy, Parliament has required that such disputes ought to be dealt with in the way set out in that section and judicial review was thereby excluded. 

[27]      Mr O’Neill submitted that a matter of vires is raised here which meant that recourse to judicial review is available notwithstanding the existence of a right of objection under section 31 of the 1964 Act.  That provision was related to quantification of the charges and was not designed to deal with a vires argument to the effect that the respondents had no statutory power to charge for conservancy activities in respect of vessels within the dockyard port. 

 

Discussion and decision

[28]      As Mr Howie contended, the general rule is that judicial review will be excluded where there are remedies under statute available to a petitioner.  That rule is, however, subject to exceptions.  One of those is where it is contended that a body has acted ultra vires the statutory powers granted to it (see British Railways Board v Glasgow Corporation (supra) the opinion of Lord Wheatley at page 238).  Here, as Mr O’Neill pointed out, the petitioners raise a question of vires.

[29]      Section 31(2) provides that the charge subject to challenge is one imposed by the harbour authority at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing.  That indicates, in my opinion, that Parliament did not envisage arguments as to vires being advanced under the section 31 procedure. 

[30]      Furthermore, there are practical considerations which ought to be borne in mind.  The petitioners’ contention is that a vessel remaining within the dockyard port would continue to be exposed to conservancy charges in the event that it remained there.  Thus the petitioners face a constant threat of enforcement action on any vessel mooring at the terminal.   Any vessel proceeding into the area of the dockyard port would be subject to these charges and a decision in terms of section 31 would not prevent the respondents from attempting to recover such charges in the future either against the petitioners, if appropriate, or against any other owner or charterer.  On the other hand, a decision of this court in the petitioners’ favour would preclude the imposition of such charges in the future and arrestment procedure thereon.

[31]      If the intention of Parliament is to oust the jurisdiction of the court, that should be expressed clearly and unambiguously (Kerr v Hood 1907 SC 895 at 900).  In these circumstances I conclude that section 31 of the Harbours Act 1964 does not clearly and unambiguously oust the jurisdiction of this court upon the issue raised by the petitioners. 

 

The Submissions for the Petitioners on the Merits of the Petition
[32]      Mr O’Neill submitted that the respondents had no jurisdiction to levy conservancy charges on vessels moored within the dockyard port.  Section 118 of the 1965 Order prohibited any interference with Crown rights.  The 2011 Order gave exclusive jurisdiction within the dockyard port to the Queen’s Harbour Master.  In his opening submissions he referred to section 100 of the 1847 Act which provides that nothing in the 1965 Order could extend to or affect the rights of the Crown as to revenue.  In his reply he referred, for the first time, to section 99 of the 1847 Act which prevents the 1965 Order from affecting in any way the rights of the Crown more generally. 

[33]      Mr O’Neill argued that the petitioners were only obliged to pay conservancy charges if the respondents had a right to charge therefor.  The respondents could only exercise the statutory jurisdiction granted to them by act of Parliament.  The provisions of the 1847 Act, when read with section 118 of the 1965 Order and the terms of the 2011 Order which set up the Dockyard Port of Gareloch and Loch Long were to be construed so as to exclude the jurisdiction of the respondents to levy conservancy charges on vessels within Loch Long. 

[34]      Powers of conservancy formed part of the jus coronae and were the prerogative of the Crown.  In the present case those powers were vested in the Queen’s Harbour Master through the establishment of the dockyard port at Loch Long. 

[35]      He referred to Lord Advocate v The Trustees of the Clyde Navigation (1891) 19 R 174 which held that the Crown has a right of property in Loch Long and is entitled to stop any intruder from coming into that Loch and depositing material onto the seabed, regardless of whether or not that operation caused any harm.  So, in this case, the Crown would be entitled to obtain interdict against the respondents if they were to attempt to exercise powers of conservancy in the Loch.   Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1979 SC 156 demonstrated that the Crown could prevent use of the seabed by anyone using it beyond the public right of navigation or fishing.    The respondents were also entitled to vindicate that right.  Included within the jus coronae are operations by which a harbour is improved for the convenience of navigation and the right to levy duties for the maintenance of the harbour (Burghead Harbour Company Ltd v George (1906) 8 F 982).

[36]      Accordingly, the Crown’s rights in Loch Long were not in any way adversely affected or ousted by the creation of the Clyde Port Authority by the 1965 Order.  This was a private act of Parliament the provisions of which require to be more strictly construed where it is claimed that a right is thereby granted to the party promoting it (Stewart v River Thames Conservators [1908] 1 KB 893 at 902).

[37]      Section 23 of the 1865 Act, which provided that inter alia powers of conservancy were not to be prejudiced by the creation of a dockyard port, was inserted for the “abundance of caution” not because any such rights of conservancy had been granted to any third party (Province of Bombay v Municipal Corporation of the City Bombay 1947 AC 58 at 65).  Brown v Mayor and Commonalty and Citizens of the City of London 9 CB (NS) 726 was an example of the Crown expressly granting powers of conservancy to a statutorily created body.  No such grant existed in favour of the respondents. 

[38]      The role of the Queen’s Harbour Master, as set out in section 4 of the 1865 Act, was to protect the rights of the Crown including powers of conservancy within Loch Long. 

[39]      Mr O’Neill referred to the affidavit of David Lightfoot, the Queen’s Harbour Master, where he explains at paragraph 12 that he performs conservancy duties including ensuring navigational marks are correctly positioned and maintained and the prevention of pollution.  He also states in paragraph 13 that he relies on the Crown’s common law powers where his statutory duties alone are insufficient for him adequately to undertake his daily functions.

[40]      Mr O’Neill also pointed to the differences between the 1967 Order setting up the Dockyard Port of Gareloch and Loch Long and the 2011 Order which succeeded it.  The 1967 Order specifically provided that it operated without prejudice to any powers exercisable within the waters of the dockyard port by the Clyde Port Authority (see Regulation 5).  No such provision appeared in the 2011 Order. 

[41]      There was no room for parallel jurisdictions exercised by both the Queen’s Harbour Master and the Clyde Port Authority within the dockyard port.  The Memorandum of Understanding between the Queen’s Harbour Master and the dockyard port (7/3/1 of process) specifically stated that it had no legal effect. 

 

Submissions for the Respondents
[42]      Mr Howie argued that the legislation referred to by the petitioners did not have the effect of giving exclusive jurisdiction to the Queen’s Harbour Master in carrying out conservancy functions within the dockyard port.  The 1965 Order extended to sea lochs in the Firth of Clyde area, including Loch Long.  The 1967 Order setting up the Clyde Dockyard Port by Regulation 5 contained an express saving for the respondents’ statutory predecessor, the Clyde Port Authority.  The 2011 Order did not contain such a saving because it was unnecessary.  Had it been Parliament’s intention to remove conservancy powers from the Clyde Port Authority that would have been done expressly in the 2011 Order.  Section 23 of the 1865 Act contained an express saving of powers of conservancy exercise by any body within the dockyard port.  By 1967 powers of conservancy were already possessed by the Clyde Port Authority and those powers were saved by the provisions of section 23 of the 1865 Act.

[43]      In any event, the exercise of conservancy functions is not something which can be viewed as prejudicial to the claims of the Crown and thus to offend against section 100 of the 1847 Act or section 118 of the 1965 Order.  Such work as the laying of buoys or other navigational aids is conducive to safe navigation and therefore beneficial.

[44]      By section 16 of the 1965 Order the Clyde Port Authority was given power to dredge the bed and foreshore of the River and Firth of Clyde within the port and any material taken up in the course of such operations is the property of the Port Authority and may be used, sold, removed or deposited as it thinks fit.  The respondents have permission from the Crown Estate Commissioners to dredge in the Firth of Clyde subject to the payment of a royalty.  That is in conformity with section 118 of the 1965 Order, since dredging, on payment to the Crown, could not be said to be prejudicial to its rights.  It was also in conformity with the terms of section 100 of the 1847 Act.  However, regulation 17 of Schedule 5 to the 2011 Order provides that written permission of the Queen’s Harbour Master is necessary to dredge within the dockyard.  This demonstrated that, within the dockyard port, the Queen’s Harbour Master controlled such activity if carried out by bodies such as the Clyde Port Authority.

[45]      Mr Howie submitted that section 118 of the 1865 Act did not, as claimed by the petitioners, have the effect of encroaching on the powers of the Port Authority or, as Mr O’Neill put it, “carve out” large tracts of the provisions of the 1965 Order, since that would be self-defeating of the purposes for which the Clyde Port Authority had been set up.  That was why the savings of rights, and specifically powers of conservancy, were made by section 23 of the 1865 Act. 

[46]      The charging of conservancy charges were “ship, passenger and goods dues” for which the Clyde Port Authority were entitled to charge under section 26 of the Harbours Act 1964.  Such charges are exigible throughout the Clyde Port Authority’s jurisdictional area including Loch Long. 

[47]      Mr Howie pointed out that in terms of section 57(1) of the Harbours Act 1964 “ship, passenger and goods dues” includes harbour charges in respect of any ship for entering, using or leaving the harbour including charges made on the ship in respect of marking or lighting the harbour.  That phrase was considered in R v Carrick District Council ex parte Prankerd [1999] QB 1119 at 1128 where Lightman J. concluded that such dues are confined to charges for the use of the harbour as a harbour as opposed to charges which are in respect of the enjoyment of ancillary services.  Dues payable for the use of a harbour as a harbour are in the nature of a tax, payment of which entitles the person making the payment to use the harbour without interference by the harbour authority.  These dues are to be distinguished from charges for the use of other ancillary (usually optional) services for example use of a crane or mooring rights.

[48]      Mr Howie therefore argued that charges for conservancy work fell within the meaning of ship, passenger and goods dues and were a tax on the vessel while in the confines of the harbour. 

[49]      This was reflected in the respondents’ schedule of charges (6/1 of process) where the conservancy charges are payable for vessels navigating in any part of the conservancy area.  Vessels remaining in that area beyond seven days are liable for a further charge.  Thus the vessel which is the subject of this petition was liable to pay such charges, not only while navigating within the area, but also when within the geographical jurisdiction of the respondents for any period beyond seven days. 

[50]      Mr Howie acknowledged that the definition of conservancy area in the respondents’ own schedule of charges did not mirror exactly the jurisdictional area set out in section 14 of the 1965 Order, as amended, in that it made no reference to the sea lochs within the Clyde Estuary.  He also acknowledged that the Notice to Mariners issued by the respondents in 2013 and 2014, which set out the respondents area of jurisdiction, specifically stated “Clyde Port’s jurisdiction includes Holy Loch, but excludes Loch Long and Gareloch”.  He submitted that such descriptions by the respondents could not alter the statutory jurisdiction which they were granted.  As a matter of fact, the respondents have exercised powers of conservancy within Loch Long.  7/5 of process is a diagram showing fixed and floating navigational aids owned by the respondents situated within the dockyard port of Loch Long. 

[51]      The legislation concerning both the powers of the respondents and those of the Queen’s Harbour Master should be read as creating a parallel jurisdiction where the respondents could exercise powers of conservancy along with the Queen’s Harbour Master within the dockyard port.  Memoranda of Understanding between the respondents and the Queen’s Harbour Master had been entered into.  7/3 of process was an example dated 1 September 2015.  Although it was acknowledged it has no legal effect, its purpose was to facilitate co-operation between the respondents and the Queen’s Harbour Master (see paragraph 7.1). 

[52]      Mr Howie referred to the terms of the affidavit of Mr Russell Bird, the Group hydrographic and dredging manager of the respondents, who makes reference to regulation 17 of Schedule 5 to the 2011 Order.  That prohibits dredging in the dockyard port otherwise and in accordance with the written permission of the Queen’s Harbour Master.  Mr Bird contends that that provision relates to dredging “from a fishing vessel, for example scallop or claim dredging”.

[53]      Mr Howie challenged the statement in the affidavit of Mr David Lightfoot, the Queen’s Harbour Master at paragraphs 28 and 29 that he was the appropriate authority to apply for a ship to ship transfer licence in respect of the Finnart Terminal in terms of the Merchant Shipping (Ship to Ship Transfers) Regulations 2010.  Mr Howie submitted that the respondents were the harbour authority within the meaning of those regulations and the transferred licence ought to have been applied for by the respondents. 

 

Submissions for the First Interested Party
[54]      Mr MacColl adopted the arguments advanced on behalf of the petitioners.  However he went onto argue that the vessel had been used as a storage facility at the terminal and as such was not liable to any ship passenger or/and goods dues under section 26 of the Harbours Act 1964 as claimed by the respondents.  Rather it should be classified as a floating dock which was part of the terminal and not using the Port Authority’s harbour for any purpose which rendered it liable to a conservation fee. 

 

Submissions on behalf of the Second Interested Party, the Queen’s Harbour Master
[55]      Mr Johnston emphasised that his client took a neutral stance on this matter.  It was accepted that the respondents had conservancy powers within the dockyard port under the 1965 Order but the Queen’s Harbour Master also had such powers under the 1865 Act.  As Mr Lightfoot stated in his affidavit at paragraph 17, it is not unusual for there to be an overlap between the jurisdiction of a dockyard port and other harbour authorities.  However, the respondents’ rights or duties within the dockyard port are only exercisable with the permission of the Queen’s Harbour Master and under his direction.  He is prime in that respect. 

[56]      Mr Johnston did not accept that section 118 of the 1965 Order represented any sort of “carve out” of the powers and duties set out in the 1965 Order.   If that were so, it would render many of the provisions in Part 3 meaningless.

[57]      An example of the primacy of the role of the Queen’s Harbour Master within the dockyard port occurred in relation to dredging.  By Regulation 17 of Schedule 5 to the 2011 Order, the written permission of the Queen’s Harbour Master was required for dredging there.  It was not accepted that dredging in this context had anything to do with fishing which was specifically dealt with by Regulation 8.  Accordingly, the power to dredge given to the respondents by section 16 of the 1965 Order was made subject to the direction of the Queen’s Harbour Master within the dockyard port by virtue of Regulation 17 of the 2011 Order.  The Crown’s rights within the dockyard port were thus protected.  The regulations in the 2011 Order laid down the powers of the Queen’s Harbour Master which are exercisable within the dockyard port for the purposes set out in section 5 of the 1865 Act, that is to say for the proper protection of Her Majesty’s vessels, dockyards or property or for the requirements of Her Majesty’s Naval Service.  The jurisdiction of the Queen’s Harbour Master and that of the respondents co-existed, subject to the primacy of the Queen’s Harbour Master within his jurisdiction.  He stated that the oil transfer licence ought to have been applied for by the respondents and not the Queen's Harbour Master. 

 

Discussion and Decision

[58]      Mr O’Neill did not argue that the respondents had no jurisdiction to levy conservancy charges in other areas than the dock yard port.  The rights of the Crown were apparently not affected or prejudiced by conversancy powers exercised by the respondents in other areas of the Clyde estuary.  It was the creation of the dock yard port regime which was said to curtail the respondents’ statutory powers.  It might have been contended that section 118 of the 1965 Order, for example, would have that effect but Mr O’Neill did not press his argument so far.  It is therefore necessary to examine the position within the limits of the dock yard port and to ask whether anything in the legislative schemes outlined above means that the respondents’ powers are restricted in the way submitted by the petitioners. 

[59]      I accept that the Crown’s rights in Loch Long and elsewhere, including those exercised for the public benefit and in the defence of the realm, fall to be protected.   In order to see to what extent they are protected within Loch Long, it is necessary to examine the statutory regimes which create the Clyde Port Authority and the dock yard port together. 

[60]      As a generality, it is clear from the terms of section 14 of the 1965 Order as amended that the respondents have jurisdiction within Loch Long since it is a sea loch “within the river and Firth of Clyde between the landward and seaward limits”.  Section 23 of the 1865 Act acknowledges that others have jurisdiction within the dock yard port.  That was confirmed in section 5 of the 1967 Order. 

[61]      Section 99 of the 1847 Act, seized upon by Mr O’Neill in his reply, provides a wide saving of the rights of the Crown so that the its broad interests are not “alienated, defeated”, etc.  Section 100 provides for a saving of rights as to Crown revenues.  But those provisions, incorporated into the 1965 Order, are subject to the qualification set out in section 4(1) quoted in paragraph 5 above, that is “so far as they are applicable for the purposes of, and are not inconsistent with or varied by this Order”.   Section 118 of the 1965 Order goes on to reflect sections 99 and 100 of the 1847 Act in conformity with section 4(1).  It ensures that any prejudicial impact on Crown rights by the exercise of the respondents’ powers are controlled by the Commissioners.  The arrangement about dredging appears to be in line with this provision.  

[62]      I agree with Mr Howie and Mr Johnston that, were Mr O’Neill’s interpretation of sections 99 and 100 of the 1847 Act correct, it would render much of Part 3 of the 1965 Order redundant and the powers granted thereby largely illusory.   It would also give no content to the provisions of section 4(1) of the 1965 Order or to section 23 of the 1865 Act. 

[63]      The provisions relating to the dockyard port reflect the same approach.  Far from containing measures proscriptive of the exercise of powers by the Clyde Port Authority, section 23 of the 1865 Act contains a saving of rights of third parties, with a specific saving of conservancy powers.  Those powers may well be singled out because of a recognition that they are viewed as beneficial and not prejudicial to the rights of the Crown. 

[64]      The 1967 Order, creating the dockyard port on the Clyde, was made under the 1865 Act by Order in Council.  Section 5 makes it clear that its provisions are to operate without prejudice to “any powers exercisable within the dockyard port” by the Clyde Port Authority “by virtue of the jurisdiction conferred on them by statute in respect of those waters”.  That indicates that the Clyde Port Authority had statutory jurisdiction in the dockyard port consistent with section 23 of the 1865 Act.  As Mr O’Neill pointed out, the 2011 Order does not repeat that provision.  However, he did not point to any change between 1967 and 2011 which might have taken away or reduced the jurisdiction of the Clyde Port Authority in those waters.  It may be that such a provision is, in any event, unnecessary standing the terms of section 23.  

[65]      In my view, the two sets of statutory provisions complement one another and protect Crown rights while allowing the respondents to carry out their statutory functions, in the Clyde estuary, including the area of the dockyard port. 

[66]      Those functions include the exercise of powers of conservancy.   While these are nowhere defined in the legislation governing either the Clyde Port Authority or the dockyard port, statement 31of the petition describes them as encompassing the provision of “safe navigation, the maintenance of water depths, the marking of any channel or obstructions, the carrying out of sea bed and other marine related surveys, the provision of a response facility for marine incidents, the regulation of marine traffic and, overall, the provision of a safe passage from sea to berth”.  No-one took any issue with that definition and I consider it to be a proper description of what is involved in conservancy.  It is in line with section 313(1) of the Merchant Shipping Act 1995 which defines a conservancy authority as including all persons entrusted with “the function of conserving, maintaining or improving the navigation of a tidal water”.   They are an example of the exercise of the duties and powers of the Clyde Port Authority granted by section 13 of the 1965 Order being necessary for “the maintenance and improvement of the port”.  But the exercise of such powers within the limits of the dock yard port are subject to the direction of the Queen's Harbour Master in the exercise of his statutory powers. 

[67]      The act of dredging provides an example of powers granted to the respondents under the 1965 Order to perform acts of conservancy being controlled by the powers of the Queen's Harbour Master granted under the 2011 Order and by the Crown Estate Commissioners under section 118 of the 1965 Order and illustrates the point that it is only by looking at the structure of the two statutory schemes that the extent of protection of crown rights is revealed.  

[68]      Contrary to Mr O’Neill’s submission, the provisions of schedule 5 of the 2011 Order reveal the existence of parallel jurisdictions operating in the dockyard port.  The respondents maintain navigational lights in Loch Long which are shown on the chart appended as document 3 to the affidavit of Andrew Hemphill, the Port Director of the respondents.   Regulation 1 in schedule 5 subjects not only the masters of vessels, but every other person within the limits of the dockyard port, to the directions of the Queen's Harbour Master “for the proper protection of the dockyard port” and to comply with any conditions imposed in any permission granted by him in accordance with the provisions of the regulations.  Thus the respondents are subject to the direction of the Queen's Harbour Master when exercising their powers within the limits of the dockyard port.  In the course of maintaining the navigational aids operated by them there, the respondents are subject to the direction of the Queen's Harbour Master.   No moorings can be laid save with his permission (regulation 2).  No navigational mark (including beacons and buoys) in the dockyard port can be interfered with (regulation 16).  In terms of the rules contained in schedule 6, all vessels within the dockyard port are subject to the control of the Queen's Harbour Master.  So while the respondents can operate within the dockyard port in the exercise of the powers granted to them, they, like any other person, are subject to the direction of the Queen's Harbour Master in the exercise of his statutory functions.   As Mr Johnston submitted, while there may be overlap between the jurisdictions of the respondents and the Queen's Harbour Master, the latter is “prime” within the dockyard port.  There may also be uncertainty or disputes between the two in the operation of their respective powers within that overlap.  The identification of which authority ought to have applied for the transfer licence is an example. 

[69]      The Queen's Harbour Master, in exercising the powers under regulations made under section 5 of the 1865 Act, does so for the purposes set out in that section.  He represents only a portion of the rights of the Crown.  He does not, for example, represent the interests of the Crown Estate Commissioners.  The powers vested in him are to be exercised to the extent necessary to discharge his statutory purposes.  In my opinion the respondents are not prohibited from performing acts of conservancy within the dockyard port, as long as they do so subject to the directions of the Queen's Harbour Master in the exercise of his statutory powers. 

[70]      I conclude that the respondents have jurisdiction to exercise conservancy powers within the limits of the dockyard port.  I also conclude that they have the right to charge for that function.  I agree that such activities come within the definition of ship, passenger and goods dues in section 57(1) of the Harbours Act 1964 as charges “in respect of any ship for entering, using or leaving the harbour”.   The vessel is therefore subject to these charges not only when entering or leaving the harbour but when using it.  Section 26(2) entitles the respondents to demand, take and recover such dues “as they think fit”, subject to the right of objection created by section 31.  The respondents are entitled to demand payment of the conservancy charges and to arrest the vessel in the event of non-payment.  I do not accept Mr McColl’s submission that the vessel should be categorised as a floating dock as referred to in section 67 of the 1965 Order.  The vessel is a ship which is capable of navigation, and without assistance “of entering, using or leaving the harbour” (see the definition of “ship” and “ship, passenger and good dues” in section 57(1) of the Harbours Act).    It follows that the petitioners are not entitled to the remedies sought in this petition.

[71]      My conclusion on the jurisdictional position of the respondents is based upon what I regard as a proper reading of the provisions of the various Act and regulations referred to above. As Mr O’Neill pointed out, the respondents in their schedule of charges include a definition of the conservancy area which makes no reference to the sea lochs, unlike section 14 of the 1965 Order.  The Notices to Mariners issued by the respondents’ parent company, Peel Ports Clydeport, specifically states that “Clydeport’s jurisdiction includes Holy Loch but excludes Loch Long and Gareloch”.  These descriptions cannot affect the powers granted to the respondents by statute and, as a matter of statutory construction, I do not consider that they accurately reflect the respondents’ jurisdiction insofar as their powers of conservancy are concerned.  However, they may have a bearing on the contractual position in relation to the users of the respondents’ services.  That is not a matter with which the petition is concerned. 

[72]      I shall therefore refuse to grant the orders sought in the petition.  I will reserve meantime all question of expenses.