Scottish Court of Session Decisions

By various royal charters granted to the city of Edinburgh, and ratified in Parliament, including the charter of James VI. in 1603, commonly called the Golden Charter, powers were conferred on the city to levy certain dues upon goods and ships at the port of Leith. The charters referred to usage and possession, as showing the extent and nature of these dues. The powers as to levying dues were also sanctioned by various statutes, and, among others, by 28 G. III. c. 58, which was passed for improving the harbour of Leith, &c., and which bore, in its preamble, that one object of its provisions was to ascertain the fees and dues there payable. On this subject disputes had arisen, from time to time, between the Magistrates of Edinburgh and the parties using the port of Leith. These parties disputed, inter alia, the right asserted by the Magistrates, of computing goods imported or exported (under certain exceptions), either by the ton of 20 cwt., or by an arbitrary ton of measurement of eight barrel-bulk, or forty cubic feet, and selecting either the standard of weight, or of bulk, according as either would yield them the greatest amount of dues. In collecting the dues, the Magistrates, from time to time, issued tables of rates, which referred expressly to the right of charging alternatively by the ton of weight, or the ton of bulk. The nature and amount of these dues, and the mode of levying them, were often the subject of dispute between the parties liable for the dues, such as the shipowners and merchants of Leith, and the parties exacting the dues, the Magistrates of Edinburgh.

In computing many of the dues, it was neither money sterling, nor weights and measures of the imperial standard which were used. In order to obviate the inconvenience thereby occasioned, and facilitate the collection of the dues, the act 7 G. IV. c. 105, was passed in 1826, which, inter alia, contained a provision, directing the Sheriff of Edinburgh “to summon a Jury, for the purpose of reducing into British sterling money, and to the standard of the imperial weights and measures, all the several duties now payable under authority of the said recited acts, and to frame tables accordingly” The Magistrates under that statute presented an application to the Sheriff, praying him to summon a Jury. The Shipowners' Society of Leith opposed the application, and contended that many of the duties did not fall within the terms of 7 G. IV, c. 105, and could not be converted under it as proposed by the Magistrates. The Sheriff found that the process of conversion, authorized by that statute, did not extend to duties payable in virtue of immemorial usage, Crown charters, or any other statutes, but those recited in that statute; he sustained objections as to various special duties, and generally found that no duties, except on goods imported in general ships, could be converted at the rate of a duty per barrel-bulk. The Magistrates, considering that all the duties published in their tables had been truly and substantially homologated and confirmed by 28 G. III. c. 58, and subsequent statutes; that the process of conversion under 7 G. IV. c. 105, was applicable to the whole of these duties; and that the judgment of the Sheriff was, in various important respects, prejudicial to their rights, raised a declarator against the Shipowners' Society of Leith, concluding to have it found and declared, “that the foresaid several duties contained in the tables published by the pursuers' predecessors from time to time, were sanctioned, homologated, and confirmed by the foresaid statute, 28th Geo. III. chap. 58, and subsequent acts above-mentioned, recited in the said last recited statute of the seventh of the King, and are now exigible and payable in virtue and by authority of the same, whether the said several duties were by the said acts first imposed, or the pursuers' right to levy the same was thereby expressly declared, sanctioned, and confirmed, and being so payable, in virtue and under authority of these several statutes, the said duties are included within the operation of the said clause in the act (1826) last before specified, and that under the authority of the said act, these duties, according to the true intent and meaning thereof, ought and should be reduced into sterling money, and to the standard of the imperial weights and measures, in terms of the said statute; and, in particular, it ought and should be found and declared, that the duties before and after particularized, the pursuers' right to levy which has been sanctioned and confirmed by the several statutes above referred to, come within the true intent and meaning of the act (1826), and ought to be converted in terms thereof, viz.:—The duty of 1d. payable by every freeman, and 2d. sterling by every unfreeman, of shore dues, on each bull, cow, calf, horse, ox, pig, dog, or other animal; and 3d, 4–12ths by freemen, and 6d. 8–12ths by unfreemen, on each score of sheep, and each two score of lambs.—The duty on all logs of timber thrown out of ships in the harbour, or floated from the road of Leith, or from the coast of Fife, or from any other place, the same fees and duties as goods brought coastways, per ton of eight barrel-bulk, or per ton bulk of forty feet, 6d. 8–12ths of shore dues, and 1s. 1d. 4–12ths of merk per ton, by freemen and unfreemen.—The duty of 3d. per ton, in name of gold penny for each vessel built within the harbour of Leith, and for all vessels sold by public roup or privately, in whole or in part.—The duties for birthage payable for each vessel or passage-boat, every time they come into the harbour, as follows, viz., every passage-boat 2d. sterling, but if boarded with goods, 1s.; British vessels from ten to twenty-five tons burden for a coasting voyage 1s., and from foreign ports 2s. 6d.; ditto, from twenty-five to fifty tons burden, for a coasting voyage 1s. 6d., and from foreign ports 4s.; ditto, of fifty tons burden, for a coasting voyage 2s. 6d., and from foreign ports 5s.; ditto, of seventy tons and upwards, 5s.; ditto, loaded with coal, under twenty dale 3d., from twenty to forty dale 6d., from forty to fifty dale 9d., and above fifty dale 1s.; foreign vessels, of whatever burden 5s., and vessels coming into the harbour with coals for London or other ports, and unloading any part of the cargo to take in other goods, 2s. 6d., except vessels coming into the harbour loaded with corn or other goods, and going out again without breaking bulk, which are not liable to birthage; and the following flag or light dues, viz., for every vessel of forty tons burden and upwards, each coasting voyage, for the shore-master 1s. 6d., and for the man hoisting the flag or putting up the light at the pier 1s.; and for every vessel, of whatever burden, from foreign ports, for the shore-master 1s. 6d., and for the man hoisting the flag or putting up the light at the pier 1s.—And the following duties of pilotage payable by all ship-masters and others to the collector of the shore-dues for the use of the licensed pilots, viz., for a vessel drawing seven feet water, and under, 10d. per foot, amounting to 5s. 10d.; drawing eight feet water, 1s. per foot, or 8s.; drawing nine feet water, 1s. 1d. per foot, or 9s. 9d.; drawing ten feet water, 1s. 2d. per foot, or 11s. 8d.; drawing eleven feet water, 1s. 3d. per foot, or 13s. 9d.; drawing twelve feet water, 1s. 4d. per foot, or 16s.; drawing thirteen feet water, and all above, 1s. 6d. per foot, or 19s. 6d., besides the duty, payable by all masters of vessels for each twenty-four hours' attendance on board their ships, to the master pilot 2s., and to each of the boatmen 1s., or such other rates as the Lord Provost, Magistrates, and Council of Edinburgh from time to time may establish.—And whereas the pursuers and their predecessors in office have, from time immemorial, been in the use of levying at their port of Leith duties on different goods, either by the ton by weight, or by the ton by bulk, according to the nature and description of such goods as set forth in the several tables published from time to time by the pursuers and their predecessors in office, and the right of the pursuers and their predecessors to do so has been acknowledged, sanctioned, and homologated by the several statutes above referred to: Therefore, it ought and should be found and declared, that, according to the true intent and meaning of the last recited statute, the seventh of the King, these duties should be converted, with reference to the rates at which they have been immemorially levied, as specified in the tables already referred to, whether the said duties shall be levied by the weight of the articles, or the measurement or number thereof, and to make the converted duties leviable according to the rates heretofore levied, in terms of the several tables, and according to the nature, kind, and description of the several articles.”

The Magistrates also brought an advocation of the process before the Sheriff, ob contingentiam. The Shipowners' Society of Leith alleged, in defence against the declarator, that both the amount and the mode of levying many of the dues, were unwarranted by law or statute; and they brought a counter-declarator to that effect.

A record was made up, and, as parties were at issue whether the rights asserted by the Magistrates were sanctioned by prescriptive and immemorial usage, a proof was allowed. Thereafter cases were ordered, and were reported to the Court.