Scottish Court of Session Decisions

The Harbours, Docks, and Piers Clauses Act 1847 (10 and 11 Vict. cap. 27), section 33, is quoted supra in rubric.

The Ayr Harbour Amendment Act 1866 (29 and 30 Vict. cap. 208), section 3, enacts—“The Harbours, Docks, and Piers Clauses Act 1847, with the exception of sections 25 and 26, and except where expressly varied by this Act, is incorporated with and forms part of this Act.”

The Trade Disputes Act 1906 (6 Edw. VII, cap. 47, section 3, is quoted supra in rubric.

John Milligen & Company, Limited, Belfast, the registered owners of the steamship “Eveleen,” of Belfast, pursuers, brought an action against the Ayr Harbour Trustees, defenders, for declarator—“( Primo) That upon payment or tender by the pursuers of the rates appropriate to the steamship ‘Eveleen,’ and exigible under the said Acts in respect of her obtaining a loading berth, the defenders are bound to give or assign to the said steamship a berth or position in the harbour of Ayr, for the purpose of shipping or unshipping cargo or goods in the rotation in which she enters the said harbour, when the pursuers are prepared and willing to ship or unship cargo or goods, and when the same is provided and free to be shipped or ready to be unshipped; ( secundo) that the pursuers are entitled, on obtaining such berth, to employ the services of their own employees in the loading or discharge of their said vessel, and for the purpose of loading or discharge to obtain the use of the cranes and other necessary plant belonging to the defenders and provided for such purpose, either on the pursuers making payment or tender of the appropriate rates, dues, and charges legally exigible by the defenders for the use of the said berth or position and the said cranes and plant, or their finding security therefor; and ( tertio) in any event it ought and should be found and declared that in the event of the defenders being requested to work the loading or discharge of the said steamship, and them or their employees refusing to do so, the defenders are bound, on being requested by the pursuers, to permit the loading or discharge thereof to proceed by labour provided by the pursuers, and for that purpose to permit the use of the cranes and other necessary plant belonging to them on payment as aforesaid;” for reduction of certain of the Ayr Harbour bye-laws and regulations; and for £500 damages for loss caused to the pursuers by delay in unloading the ‘Eveleen.’

The following narrative of the facts is taken from the opinion of the Lord Ordinary ( infra)—The pursuers, who are shipowners and coal merchants carrying on business in Belfast, are the registered owners of the coasting steamship ‘Eveleen,’ trading between Ayr and Ireland, and carrying for its principal cargo coal from Ayr. In April 1913 the pursuers were involved in a trade dispute with certain of their employees in Belfast, who were members of the Irish Transport Workers' Union. In connection with this dispute the officials of the Irish Union invoked the sympathy and aid of the Scottish Union of Dock Labourers,

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and suggested that when the ‘Eveleen’ arrived in Scotland for cargo, the Scottish trade unionists should refuse to load the ‘Eveleen.’

On 16th April 1913 the ‘Eveleen’ arrived at Ayr Harbour at 10 a.m. for a cargo of coal which the pursuers had contracted to carry to Dublin, and which was at said harbour ready to be loaded. The harbour at Ayr is a tidal harbour, consisting of quays on each side of the river Ayr near its mouth. A portion of the quays on the north side of the river is reserved for loading coal cargoes, and there are railway lyes for this purpose along the quays. The railway of the Glasgow and South-Western Railway Company is on the north side of the harbour. At the coaling berths on the north side there are steam cranes for lifting the loaded waggons and tipping their contents into the ship's hold. There are no facilities for loading coal on the south side of the harbour.

The harbour of Ayr is administered by the defenders, who are incorporated as the Ayr Harbour Trust under the Ayr Harbour Acts 1855 to 1893, and the Ayr Harbours Orders Confirmation Act 1901. The chief executive official of the defenders is the harbour-master.

The mode in which the loading of coal cargoes is effected is as follows—The coal waggon is brought by rail to the ship's side and brought forward by means of a rope and capstan into a cage where it is spragged. The cage and waggon are hoisted by the crane over the ship's hold; the waggon is then tipped and its contents discharged into the hold to be dealt with there by the trimmers. The cranes employed in this work are the property of the defenders, who, under statutory provision, charge shippers 1d. per ton for their use. The labour necessary to get the coal from the railway lye into the ship is provided by cranemen, capstan-men, and rope-runners, who are all servants of the defenders. The work of trimming the coal in the ship is undertaken by independent contractors known as stevedores or master trimmers, who employ gangs of trimmers or labourers to do this work. The master trimmer must, in terms of the defenders' bye-laws, have a licence from the defenders, but this is the only connection the defenders have with the work of trimming the coal. At Ayr Harbour all the workers referred to—both those employed by the defenders and those employed by the master trimmers—are members of the Scottish Union of Dock Labourers.

On the arrival of the ‘Eveleen’ at Ayr Harbour on 16th April the defenders assigned her a loading berth at the appropriate part of the north quay. Shortly thereafter, and before any loading had been done, the ‘Eveleen’ was removed on the orders of the harbour-master to a berth at the south side from which coal is not loaded. The Irish Union had been successful in getting the Scottish Union to take up the existing quarrel, and, in consequence, the employees at Ayr Harbour refused to load the ‘Eveleen.’ The pursuers thereupon offered to provide adequate labour for the loading of the ship, including the handling of the cranes, and tendered payment of the harbour dues which were exigible, but the defenders refused to allow them to import labour to the harbour. The ‘Eveleen’ was thus detained for a time at Ayr in an endeavour to get a cargo loaded, and ultimately had to leave the harbour without a cargo. The pursuers have brought the present action to obtain damages for the loss thereby sustained, and for declarator of their rights of user of said harbour.”

The pursuers pleaded, inter alia—“(4) The pursuers being entitled to have their ship loaded in said harbour, they are entitled, on the defenders' refusal or failure to load, to perform the work at their own hand, and decree should be pronounced in terms of the third conclusion of the summons.”

The defenders pleaded, inter alia—[ Added by amendment at the hearing in the Second Division]—“(5) In respect of the provisions of the Trades Dispute Act 1906, the defenders are entitled to absolvitor.”

On 29th May 1914, after a proof led, the Lord Ordinary ( Anderson) pronounced this interlocutor—“Finds that in the circumstances disclosed in the evidence it was the duty of the defenders to provide the pursuers with a coaling berth for their ship, and with cranemen, capstan-men and rope-runners for loading said ship with a cargo of coal which was ready to be loaded: Finds that the defenders without lawful excuse failed to discharge said duty, and that the pursuers in consequence sustained loss and damages: Assesses the damages due by defenders to pursuers at the sum of £110 sterling, for which decerns in full of the sum of £500 sued for in the summons: Finds it unnecessary to deal with the declaratory and reductive conclusions of the summons, dismisses the same, and decerns.”

Opinion.—[ After the narrative supra]—The conclusions of the Summons are for declarator, reduction, and damages.

The reductive conclusion is directed against certain of the defenders' bye-laws. Under section 83 of the Harbours, Docks, and Piers Clauses Act 1847 (10 and 11 Vict. cap. 27) the defenders are authorised to make bye-laws for the purpose of regulating the use of the harbour, &c. The matter of the reasonableness of the bye-laws is, by section 85, for the determination of the Sheriff, and accordingly the pursuers make no attack on the bye-laws on the ground that they are unreasonable. They maintain, however, that the bye-laws which they challenge are ultra vires.

The pursuers can only be successful in this attack if they make out that the byelaws in question exceed the function of regulation— Dick v. Badart, 10 Q.B.D. 387. I am of opinion that none of the defenders' bye-laws exceeds this function, and I therefore decide that the byelaws are all intra vires and not open to reduction.

The declaratory conclusions of the summons are of a sweeping character and are expressed in terms which are applicable to all circumstances. I do not think that the pursuers, because of what happened in exceptional and abnormal circumstances,

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are entitled to crave a declarator which would be regulative of the defenders' administration in all circumstances. Nor do I think I am bound in the circumstances to pronounce a declaratory judgment which might fetter the administrative action of the defenders on occasions to which the judgment might not be properly applicable. It is plain, too, that these conclusions could not be granted as framed. Thus, with regard to the second declaratory conclusion, under which the pursuers claim right to employ the services of their own employees in connection with the cranes, section 22 of the Act of 1847 has evidently been overlooked by the pursuers. This section directs the defenders to provide the necessary labour for the cranes.

Although, however, it may not be open to the pursuers to crave a general declarator because of what occurred on a special occasion, they are in my opinion entitled to demand and obtain the judgment of the Court on the legal effect of the occurrences of April 1913. I propose, in deciding this question, to treat the case as if it had originated in an ordinary petitory summons claiming damages as for a wrong.

I apprehend that the whole ground is covered by propounding and endeavouring to find the appropriate answers to the following questions:—(1) Had the defenders on the occasion in question a duty towards the pursuers? (2) What was this duty? (3) Were they in breach of this duty? (4) If so, were they excused from performance? and (5) If not, were the pursuers damnified, and to what extent?

(1) Had the defenders a duty towards the pursuers? I had an elaborate and interesting argument from Mr Clyde as to the common law doctrines of public carrier, including those of free port—his general point being that members of the public had unrestricted right to the services of the carrier and the use of the free ports, and that the carrier and the grantee of the right of free port were bound to mete out equal treatment to all who craved the services of the carrier or the use of the port. Mr Clyde maintained that the Harbours Act of 1847 is just declaratory of the common law as to right of user on the part of the public. On this part of his argument he cited Macnamara on Carriers by Land, 2nd ed., chaps. 3 and 4; Rankine on Land Ownership, 4th ed., pp. 286, 287; and the well-known case of Colquhoun, 16 D. 206, 18 D. 108, and 21 D. 996. I do not, however, propose to recapitulate his arguments on this point as I conceive I must go to the provisions of the statute for a statement of the rights and obligations of the parties. The defenders are a statutory body whose powers and duties are prescribed by the Act of 1847, and it is conceded by both parties that section 33 contains the leading provisions on this point. That section provides that ‘upon payment of the rates made payable by this and the Special Act, and subject to the other provisions thereof, the harbour, dock, and pier shall be open to all persons for the shipping and unshipping of goods and the embarking and landing of passengers.’

It is common ground that nothing in the defenders' Special Acts is of assistance in the determination of any of the points falling to be decided.

I must take the case on the footing that the pursuers performed what was incumbent on them under this section because the rates payable were tendered and rejected by the defenders. The counterpart to which the pursuers were entitled was to have the harbour made open to them by the defenders for the shipping of goods. This part of the section has been explained in a judgment of Mr Justice Cave which is recognised as authoritative in such standard treatises as Carver on Sea Carriage. This judgment was pronounced in the case of Dick v. Badart to which I have already referred (see also Somerville v. Leith Docks Commissioners, 1908 S.C. 797).

But I do not require to labour this part of the case as it was conceded by the defenders that they were, in ordinary circumstances at all events, under the obligations to the pursuers which are expressed in the above quoted section. The defenders further admitted that in granting facilities they were bound to treat all shippers with equality. They urged, however, that in granting facilities they had to regulate the whole matter, and that what was the whole matter depended on the particular circumstances.

(2) What was the duty of the defenders towards the pursuers? The defenders admitted that they were bound, under section 22, to provide labour to work the cranes, and they also conceded that they were responsible for the capstan-men and rope-runners. They contended, however, that the extent of their obligation was to provide a staff, and that if their servants refused to work or were prevented from working the defenders were under no further obligation. I am unable to accept this contention. The pursuers, under section 33, are entitled to have the goods shipped, and if the defenders' servants refuse to put the goods on board it is the duty of the defenders to replace the recalcitrant servants with employees who will perform their duties. It seems to me to make no difference that the dislocation of labour was due to no fault on the part of the defenders but to external causes. Their statutory duty is, under section 22, to provide ‘proper’ servants for the cranes.

(3) Were the defenders in breach of their duty towards the pursuers? The pursuers complain of two things—(1) being deprived of a coaling berth, and (2) being unsupplied with the necessary labour for the shipping of the coal. If the defenders were bound (as I think they were) to give the pursuers in their due turn a coaling berth and to supply proper servants for loading the cargo, it is plain that they failed in both the respects complained of in performing the duty they owed to the pursuers.

This brings me to the most difficult part of the case, to wit—

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(4) Were the defenders in the circumstances excused from performing their statutory duties? I hold it proved on the evidence that if the pursuers had been allowed to import labour there was a likelihood of two things happening—(1st) violence by the Scottish trade unionists towards the imported labourers, and it may be towards the defenders' property, and (2nd) a general strike at the harbour, to the detriment of the other ships which were then loading and unloading there. It was a difficult situation for the harbour-master to deal with. The defenders under their Special Acts are charged with the duty of maintaining the harbour, and they urge that there was a probability, if they acceded to the pursuers' request, of the harbour being destroyed. The defenders were also under obligation to the other shippers, who might be damnified if the pursuers' ship were loaded by imported labour. It is further established by the evidence that the defenders' officials did what they could by way of persuasion to induce their own employees and the trimmers to load the pursuers' ship. I am far from saying that in the difficult situation with which he was faced the harbourmaster did not follow the most judicious course. But the defenders may nevertheless be liable in damages to the pursuers. In contract it is almost always open to a contracting party to choose between specific performance and payment of damages for breach of contract. It is only in exceptional cases that the Court will compel specific performance. The same principles, in my opinion, are applicable to statutory obligations. The refusal of the harbour-master to give specific performance of a statutory obligation may have been in the circumstances expedient and judicious, but if the defenders cannot make out that these circumstances excused them from performing, they are liable in damages for non-performance.

The defenders contended that the circumstances did excuse them from performing. If this question had arisen under contract, as with a stevedore under obligation to load the ship, it would probably have been regulated by a strike clause in the contract. There is no equivalent of a strike clause in any of the statutes which have been referred to, nor in the defenders' byelaws, but the defenders' counsel argued that in a case of statutory obligation release or excuse is implied if the statutory duty cannot be performed— Paradavine, 1648, Aleyn 26, referred to in Addison on Contracts. I incline to agree with this argument, but to make it applicable impossibility of performance must be made out. The defenders' counsel would not go this length. The phrase which he again and again used in this part of his argument was that it was ‘practically impossible’ for the defenders to discharge their statutory duties. I am unable to determine the legal significance of this phrase. A thing can either be done, although it may be only with inconvenience and difficulty, or it cannot be done at all. In the latter case there is impossibility of performance, in the former case there is not. The defenders are foreclosed from maintaining that they could not get labour to load the pursuers' ship, because the pursuers offered to supply that labour, and I hold they have made out that they could implement that offer. I must also hold, against the defenders, that if this offered labour had been imported the power of the law would have duly protected it while engaged in loading the pursuers' ship. Again, I must determine against the defenders that if a general strike at the harbour had taken place the resources of the labour market of this country would have furnished nonunion labour for the conduct of the business of the harbour, and that the defenders would have been duly protected by the police, and if necessary by the military, in carrying on the business of the harbour by means of this non-union labour.

The defenders submitted an argument under this head on a point which was not raised in the pleadings, to wit, that they were excused from performance, or freed from liability, by virtue of the provisions of section 3 of the Trades Disputes Act 1906 (6 Edw. VII, cap. 47). I am of opinion that the terms of this section refer only to disputants in a trade contest, and are not applicable to the circumstances with which I have to deal. I therefore decide that the defenders have not made out justification or excuse for non-performance of their duty to the pursuers.

“(5) This leaves for determination only the matter of damages. I hold that the pursuers sustained damages in consequence of the aforesaid breach of duty on the part of the defenders. I think it is proved that the ‘Eveleen’ was wrongously detained for eleven days in Ayr Harbour. It seems to me that the damages due may reasonably be assessed as if this was a claim for demurrage at a time rate. So assessing the damages, I decide that the pursuers are fairly compensated by a rate of £10 per day, or £110 in all.”

The defenders reclaimed, and argued—(1) The defenders had not failed in any common law duty. (2) They had given full implement of their statutory duties. Their liability arose under a public Act, viz.—The Harbours, Docks and Piers Clauses Act 1847 (10 and 11 Vict. cap. 27), and even if the Ayr Harbour private Acts were treated as contractual, they had no other effect than to put the defenders under the public Act. Under section 33 of the public Act the defenders were not bound to render special services— Somerville v. Leith Dock Commissioners, 1908, S.C. 797, 45 S.L.R. 590 Indeed section 67 positively forbad it. Under section 22 the limit of the obligation on the defenders was to provide sufficient and suitable labour. The duty was a qualified not an absolute duty. Sections 52 and 83 showed that modifications were inferred in the liability. The duty was to offer “servants” not “service,” and to offer them only at “reasonable times.” The defenders had not failed to offer men, and to do their best to induce them to work. Accordingly their offer was a good offer. There must be read into the obligation a condition to the effect

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that if the men were unwilling to work the obligation did not apply. The vessel must arrive in harbour free from any disqualification which might prevent the men from working— Whites, &c. v. Steamship Winchester Company, February 5, 1886, 13 R. 524, per Lord Shand at 538, 23 S.L.R. 342, at 348. (3) Even if there were a statutory duty to unload the vessel, the defenders were in the circumstances of the case excused from performing it. The law recognised three excuses for non-performance of the duty, viz., (1) where it was physically impossible, (2) where it was a breach of the law, and (3) where it was difficult owing to circumstances for which the debtor was not to blame— Paradine v. Jane, 1648, Aleyn 26; Addison on Contracts (11th ed.), p. 148; Anson on Contracts (13th ed.), p. 371; Embiricos v. Sydney Reid & Company, [1914] 3 KB 45. (In that case performance was not absolutely impossible— see Scrutton (J.) at 51.) The present case fell under and was a fortiori of the third class of exceptions, because here the difficulty was due to the creditors themselves. Moreover, the pursuers were not the sole creditors, and the action of the defenders, by preventing a strike, preserved the rights of other creditors to whom the defenders were equally under obligations. (4) The defenders were absolved from fulfilment of the obligation in respect of the provisions of the Trades Disputes Act 1906 (6 Edw. VII. cap. 47), section 3— Conway v. Wade, [1909] AC 506, per Lord Loreburn, L.C., at 511; Vacher & Sons, Limited, v. London Society of Compositors, [1913] AC 107, per Lord Atkinson at 123. In the present case the dispute was a dispute between the defenders and their whole employees at Ayr as to whether or not National Union labour should come into the harbour, and it was in contemplation of this dispute and in order to avoid a strike that the defenders acted as they did. Stewart v. Kennedy, February 17, 1890, 17 R. (H.L.) 1, per Lord Watson at 9, 27 S.L.R. 386, at 391, was also referred to.

Argued for the respondents—(1) At common law the pursuers had the right to use the pier. If a pier was put down it was free to all and sundry— Colquhoun v. Paton, December 15, 1853, 16 D. 206, per Lord Justice—Clerk (Hope) at 211; Bell's Principles (10th ed.), section 657. (2) The pursuers also had a right under sections 22 and 23 of the Harbour, Docks, and Piers Clauses Act 1847 ( cit.) to have the ship berthed for a sufficient time to permit of its being loaded, and the Harbour Trustees were bound to assist with appliances and workmen, or else to use those which the pursuers were willing to supply. A body of statutory trustees could not by passing a bye-law deprive a member of the public of his statutory rights— Oswald v. Ayr Harbour Trustees, January 24, 1883, 10 R. 472, 20 S.L.R. 327, affd. July 23, 1883, 10 R. (H.L) 85, 20 S.L.R. 873; Somerville v. Leith Docks Commissioners, cit., per Lord Ordinary (Dundas) at 1908 S.C. 802, 45 S.L.R. 594; Dick v. Badart, (1883) L.R. 10 Q.B.D. 387. The word “all” in section 33 meant “each”— Burnett v. Great North of Scotland Railway Company, February 24, 1885, 12 R. (H.L.) 25, per Lord Fitzgerald at 35, 22 S.L.R. 456, at 461. Under section 22 the defenders were bound to provide competent servants, and they were not competent servants unless they were “willing.” Section 67 did not apply to the present case, because its object was to prevent favouritism by the company to one of its own servants. It had nothing to do with partiality shown to outsiders. The Court could ordain specific implement or give damages according to its discretion— Moore, &c. v. Paterson, &c., December 16, 1881, 9 R. 337, 19 S.L.R. 236; Mersey Docks Trustees v. Gibbs, 1866, L.R., 1 HL 93, per Lord Westbury at 127; Virtue v. Commissioners of Police of Alloa, December 12, 1873, 1 R. 285, 11 S.L.R. 140. (2) The defenders could not escape their liability on the ground of the difficulty of the performance of the obligation— Hong-Kong & Whampoa Dock Company, Limited v. Netherton Shipping Company, Limited, 1909 S C. 34, per Lord Dundas at 40, 46 S.L.R. 35, at 39; Pollock on Contracts (8th ed.) p. 432. Paradine v. Jane ( cit.) was a case where the obligation had been created by a contract and not by statute. The obligation in the present case was also really contractual, because it was created by a private Act, and a private Act was just a contract sanctioned by Parliament— Herron v. Rathmines and Rathgar Improvement Commissioners, [1892] AC 498. (3) The defenders were not absolved from fulfilment of the obligation in respect of the provisions of the Trades Disputes Act 1906. The object of the Act was to further the interest of trade unions against employers, and its purpose was not to stifle but to further trade disputes. The present action was not laid on the grounds specified in the section. There was no averment as to what was the trade dispute, and what was the action done in contemplation of it. The section did not apply to an action done towards a third party with regard to a trade dispute— Conway v. Wade ( cit.), per Lord Loreburn, L.C., at 509 and 511; Long v. Larkin, [1914] 2 Ir. R. 285, per Gibson, J., at 304, and Kenny, J., at 329. Moreover, the Act did not give protection where, as here, there were threats of violence.

At advising—