United Kingdom House of Lords Decisions

Now first of all it is important to see under what powers the rate on which that amount was based was fixed, and these your Lordships will find in the Direction given by the Minister of Transport to the North British Railway Company under the statute to which I have referred. He said that as from the first day of January 1920 the charges set out in the schedule were to be “charged for detention of railway companies' waggons and sheets beyond the respective free periods defined in the said schedule.” Turning to the schedule it is headed “Charges to be made for the Detention of Waggons and Sheets before and after Transit over the Railway.” Your Lordships will observe the transit is taken as something independent, something that is to be the foundation of the whole matter, and the detention is to be outside that. Well, as one would expect, there is a definition of the free period to which I have referred—the free period allowed for, say, unloading the waggon after transit has come to an end and the consignee is in a position to take delivery. That is given in the schedule, and in the case of “traffic other than coal, coke, or patent fuel two days, exclusive of the day on which the waggon is placed at the trader's disposal. If reloaded an additional day shall be allowed,” and in the case of “coal, coke, or patent fuel three days, exclusive of the day on which the waggon is placed at the trader's disposal. If reloaded an additional day shall be allowed.” That is the free period, but then the schedule also contains the amount of the charge to be made for the detention beyond that free period. It is put down in the case of waggons “not exceeding 16 tons capacity, 3s.”—I take that for illustration—“for each of the first two days after the expiration of the free period. For each subsequent day, 5s.,” with an increasing amount for heavier waggons. That is the Direction in the schedule under which, as I have said, the amount sued for was made out. The alternative way, and the old way, of doing this would have been under the North British Railway Order Confirmation Act 1892, which arranged things somewhat differently. There too there was a schedule, and the schedule, after defining what were to be the maximum rates, laid down that “The company may charge for the services hereunder mentioned, or any of them, when rendered to a trader at his request or for his convenience, a reasonable sum by way of addition to the tonnage rate. Any difference arising under this section shall be determined by an arbitrator to be appointed by the Board of Trade at the instance of either party.”

Among the services which the company is to render at or in connection with sidings not belonging to it was this—“the detention of trucks.” Well, obviously when that is described as a service, it must he allowing trucks to be detained for “the use or occupation of any accommodation, before or after conveyance, beyond such period as shall be reasonably necessary for enabling the company to deal with the merchandise as carriers thereof, or the consignor or consignee to give or take delivery thereof.” In that state of things it is obvious that under the old Act—under the Act of 1892—there was a right in the consignor to have the period in respect of which the charge for detention was not to begin to run fixed by arbitration. In other words, the arbitrator came in and said with regard to the time the matter should be determined by him if it was not determined clearly by the general terms of the schedule.

Now the question before the House in this appeal is whether that old machinery is swept away, or whether it continues to the extent of preserving the right to arbitration. The Lord Ordinary (Lord Sands), who decided in part in favour of the appellants, found that the Minister of Transport under the Act of 1919 had no power to supersede arbitration as far as regards the fixing of the time from which the charge for detention of waggons beginning to run was concerned, and that the appellants were entitled to have that time determined by an arbitrator. But when the case went to the Second Division the Second Division took a different view, and, as it was put by Lord Dundas, it was laid down that as to the period of days as well as the amount of rate both were involved as necessary ingredients in making the charge for detention, and that the result desired to be made clear could not be attained unless both the time and the transit were taken into account.

The question is which of these two views is right? because if the view of the Second Division is right then the arbitration clause is swept away altogether and the Minister has the full determination of the matter. It was pointed out by Mr Macmillan in his argument (what I think is important) that the sweeping language in which power is given to the Minister of Transport is qualified only in one set of particulars by a right to arbitration, and those are the particulars set out in sub-section ( f) in regard to undue preferences and to allowances and rebates. That is the only case specifically dealt with in which any reference, notindeed to an arbitrator, but, which is the same thing, to the Railway Commissioners, is preserved. The Minister is left with his power uninterfered with by any other express section of the statute. The Act seems to give the Minister a right to determine what the trader is to pay for a number of things, and among them undue detention of waggons. The amount to be paid for undue detention of waggons depends of course upon what is undue detention of waggons, and that depends on what is the due use of the waggon. It seems almost impossible that the Minister should be able to discharge his duty unless he could deal with both these things, because otherwise an arbitration confined to the period of time would be an arbitration which would nullify the decision which the Minister would have to come to in order to make his decision a complete decision. The rate per day and the time of its beginning to run are

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