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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aberdeen Harbour Commissioners v. Granite City Steamship Co. [1896] ScotLR 33_653 (2 July 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0653.html Cite as: [1896] ScotLR 33_653, [1896] SLR 33_653 |
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By Schedule A of the Aberdeen Harbour Act 1879 it is provided that any vessel included under class third which shall have made ten voyages in one year, from January to December inclusive, shall not be liable for harbour rates on any additional voyages of the description specified under class third made by it within such year.
By a subsequent Act in 1895 which came into operation on 1st October 1895, the former Acts were declared repealed from and after that date. The Act of 1895 did not contain any exemption similar to that in the Act of 1879.
By section 10 it was provided that “Notwithstanding the repeal of the recited Acts, and except only as is by this Act expressly provided, everything before the commencement of this Act done or suffered or confirmed by the recited Acts shall be as valid as if such Acts were not repealed, and the repeal thereof and this Act respectively shall accordingly be subject and without prejudice to anything so done or suffered or confirmed, and to all rights, liabilities, debts, claims, and demands, both present and future, which, if the recited Acts were not repealed … would be incident to or consequent on any and everything so done, suffered, and confirmed.”
The owners of a vessel in class third, which had made ten voyages before 1st October 1895, claimed that they had by virtue* of the Harbour Act of 1879 acquired a vested right of immunity from payment of all further rates till the end of 1895. Held ( rev. Lord Low) that the pursuers had no vested right of immunity arising out of contract, and that accordingly their right not being consequent upon “anything done or suffered” the saving clause did not apply to it.
By section 100 of the Aberdeen Harbour Act 1868 (31 and 32 Vict. c. 138) the Harbour Commissioners were empowered to levy for every vessel coming into or going out of the harbour certain rates specified in the schedules annexed to the Act. By section 12 of the Aberdeen Harbour Act 1879 (42 and 43 Vict. c. 88) these schedules were repealed,
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and the schedules annexed to the later Act were substituted. By Schedule A of the 1879 Act the rates for all vessels were provided, and they varied according to the classes into which vessels were divided. Vessels falling under class third were rated at nine pence per registered ton.
The schedule also provides as follows:—“For any vessel included in class third which shall have made ten voyages in any one year from January to December inclusive, no rates shall be charged on any additional voyages of the description specified under class third made by it within such year; and if any vessel included under class third, being a regular trader to the harbour, shall be lost or sold during any such year, any vessel substituted in the trade for such lost or sold vessel shall, in computing the number of voyages in that year, be deemed to be the vessel for which it is so substituted.… One sailing inwards and one sailing outwards next following to constitute a voyage.”
By the Aberdeen Harbour Act 1895 (58 and 59 Vict. c. 136) the Commissioners were empowered by section 75, “from and after the commencement of this Act,” to levy the rates specified in Schedule A. That schedule empowers the Commissioners to levy rates on vessels in class third for each of the first eight voyages in any year sixpence per ton, and for each subsequent voyage threepence per ton.
By section 77 it was provided that “The rates specified in the Schedules A and B to this Act, or as varied under the authority of this Act, shall at all times be charged equally to all persons in respect of the same class or description of vessel, and the same description of goods.”
By section 2—“From and after the first day of October 1895” previous Acts are repealed, and the present Act is to commence and take effect.
Section 10 provides—“Notwithstanding the repeal of the recited Acts and Order, and except only as is by this Act otherwise expressly provided, everything before the commencement of this Act done or suffered under or confirmed by the recited Acts and Order, shall be as valid as if such Acts and Order were not repealed, and the repeal thereof and this Act respectively shall accordingly be subject and without prejudice to everything so done or suffered or confirmed, and to all rights, liabilities, debts, claims, and demands, both present and future, which, if the recited Acts and Order were not repealed and this Act were not passed, would be incident to or consequent on any and everything so done, suffered, or confirmed; and with respect to all rights, liabilities, debts, claims, and demands which affect or might affect the existing Commissioners, the Commissioners shall to all intents and purposes represent the existing Commissioners, and may enforce and shall be liable in respect of such rights, liabilities, debts, claims, and demands in the same manner and to the same extent as the existing Commissioners could have enforced or have been liable to in respect of such rights, liabilities, debts, claims, and demands. Further, by section 7 of said Act it was enacted, inter alia, that “all contracts or agreements entered into or adopted by the existing Commissioners and any person, and all obligations and writings granted by the existing Commissioners to any person, should remain valid and effectual as if the Act had not been passed.”
On 1st October 1895 the s.s. “Linn o'Dee,” a steamer belonging to the Granite City Steamship Company, Aberdeen, which was included in the third class specified in Schedule A of the 1879 Act, had completed ten voyages. An action was raised against the Granite City Steamship Company by the Aberdeen Harbour Commissioners concluding for payment of £78, of which £33 was for lights, flags, &c., and £45 for the tonnage rates due under the 1895 Act for eleven voyages made by the “Linn o'Dee” between 1st October 1895 and 18th February 1896. The defenders tendered £33, being the amount they admitted to be due for lights, flags, &c., and with regard to the tonnage dues pleaded—“2. The defenders, having paid harbour rates to the pursuers for ten voyages performed by their said vessel in 1895, acquired by virtue of the Harbour Act of 1879 a vested right of immunity from payment of all further rates for that year, except for flags and signals, for all subsequent voyages in that year.”
The Lord Ordinary (
Low ) on June 18th 1896 assoilzied the defenders from the conclusions of the action as regards the tonnage dues.Note.—… “It is admitted that upon the 1st October 1895, when the Act of that year came into operation, the ‘Linn o’ Dee’ had completed ten voyages since the 1st of January, and that if the provisions which I have quoted from the Act of 1879 were applicable, she would not be liable for any rates for voyages made during the remainder of the year 1895.
“Whether, notwithstanding the commencement of the Act of 1895 on the 1st of October, the ‘Linn o'Dee’ was entitled to the immunity from rates given by the Act of 1879, depends upon the scope of the 10th section of the former Act. That section is in the following terms—[ His Lordship read the section].
That is a saving clause expressed in very ample terms, and in ray opinion is sufficient to preserve to the ‘Linn o’ Dee’ the immunity from rates for the remainder of the year 1895 which she had earned at the passing of the Act.
In the first place it is not expressly provided in the Act that an immunity from rates actually earned under the previous Act shall be forfeited. In the second place, the payment by the ‘Linn o’ Dee’ of the rates specified in the Act of 1879 for the ten voyages after the 1st of January was a thing done under that Act which gave the ‘Linn o’ Dee’ the right, as a consequent on that payment, to continue to trade free of rates until the end of the year. That is, I think, one of the rights saved by the 10th section.
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I am accordingly of opinion that the ‘Linn o’ Dee’ was not liable in payment of rates for voyages made between the 1st of October 1895 and the end of that year, and that she did not come under the operation of the Act of 1895 until the commencement of the year 1896.”
The pursuers reclaimed, and argued—The right claimed by the defenders depended on the existence of the old schedule, and disappeared on its repeal. They had no “vested right” such as would not be cut down by a repealing statute. The saving clause (section 10) applied only to rights incident to any thing “done or suffered” previous to this Act if arising out of any contractual relations between the parties prior to it. There were no such relations here between the defenders and Commissioners, the rates and number of voyages conferring exemption being defined by statute. The object of the new Act was to introduce a new system of rating, and a new date for the commencement of the financial year, and it would be directly against the intention of the Act to hold that voyages made after the date of the introduction of the new Act were to enjoy an exemption conferred by the old.
Argued for respondents—They had acquired a vested right to exemption before the new Act came into operation, and such a right was expressly exempted by section 10. It would not be taken away by implication, and if the statute could be read consistently with its retention, it should be held to be retained, the statute not being retrospective— Gardner v. Lucas, March 21, 1878, 5 R. (H. of L.) 105, at 117; Bourke v. Nutt, 1894, 1 Q. B. 725, at 737. This was not a case of a right in course of acquisition, but of one already acquired by the fulfilment of the condition of making ten voyages.
Lord President—In my opinion the interlocutor of the Lord Ordinary cannot be supported. His Lordship has held that there was a right vested in this trader to enter the Aberdeen Harbour without payment of any rates until the 1st of January of the next year. Now, the series of statutes stands in this position. Under the Act of 1879 the Aberdeen Harbour Commissioners have right to levy the rates set out in the schedule, and from the schedule it appears that after a vessel has made ten voyages in any one year, from January to December, no rate could be asked for any additional voyage. Now, that seems to me to be in substance as well as in form merely a limitation of the powers of the Commissioners to exact rates from vessels entering the harbour. They are allowed to do it ten times; they are not allowed to do it after ten voyages have been made. Well, now, this Act is repealed by the Act of 1895. A new set of rates comes into force; the old are swept away. The rating power of the Commissioners under the old Act ceases; new rating powers are to come into operation, and they come into operation from October of 1895. The result is that the Commissioners are authorised to levy their own rates, and not the rates under the Act of 1879. But the question is, whether the trader now in Court is entitled to resist a demand for payment of the rates under the Act of 1895 on the ground that he had already made ten voyages, and by consequence that the old Commissioners were not entitled to ask from him more rates than he had already paid. It seems to me that there was no contract right—no vested right—in this trader at all, and accordingly the 10th section has really no application. All that he could say was, “I am not liable to pay any rates under the Act of 1879, inasmuch as I have already paid for ten voyages.” But then the Commissioners who are now in Court are not asking him to pay anything under the Act of 1879, and they cannot do so. They are founding themselves upon their own powers of rating which are conferred by the 75th and 77th sections of the Act of 1895 and the relative schedules. Section 75 says—“You shall levy the rates from every vessel using the harbour;” and section 77 says—“You shall make no distinction between persons who are of the same classes as those defined in the schedule.” It seems to me that the Commissioners' position is complete. As I have said, the exemption under the Act of 1879 was less an exemption than a limitation of the power of imposing rates, and the present Commissioners are not seeking to impose rates, and could not do so, under the Act of 1879. Therefore it seems to me that this is merely a case where a person comes under the rating powers of the new Act, and is entirely adrift and set free from all the relations established between him and the rating authority repealed. I am therefore of opinion that the judgment of the Lord Ordinary is wrong, and I think it unnecessary to go in any detail into the illustrations of the unworkableness of the suggested dovetailing of the new Act and the old. From the 1st of October it seems to me that everyone is bound to pay, without distinction as to previous trading or not, according to the schedule of the Act of 1895. The present demand is for the rates under that Act, and there is no good defence to that claim.
There is no doubt whatever, and it is not disputed, that the Act of 1895 came into operation on first October of that year; and there is as little doubt that it specifies in the schedule appended to it certain rates which are to be levied on ships of certain classes,
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The section says, that notwithstanding the repeal of the previous Act “everything before the commencement of this Act done or suffered” shall continue to be valid. Nobody could conceive that that was meant to refer to payment of rates. One would rather conceive, as Mr Ure said, that it was meant to apply to acts of a different kind, namely, acts of a contractual nature.
However, that may be, I am of opinion that the charging of these rates under the new Act falls under the exemption contained in section 10, and that it is expressly provided by the Act of 1895 that all vessels using the harbour subsequent to that Act coming into operation shall pay the rates in the schedule. I cannot read the Act otherwise. It expressly says that from the commencement of the Act vessels of class 3 shall pay certain rates, and I must say that that is inconsistent with any presumed right to exemption altogether. The view which I take of this case is that the interlocutor of the Lord Ordinary is wrong, and that everyone must pay the rates specified in the schedules, in terms of the Act of 1895. I therefore agree with your Lordship.
In the first place, the Harbour Commissioners are not a body constituted for profit. They are a public trust authorised and entitled to levy rates for the purpose of maintaining the harbour, and, very naturally, the rates are laid upon those who take benefit from the harbour. But it is very clearly explained in section 92 that the harbour rates are only applicable to payment of debt and maintenance and improvement of the harbour. Therefore we do not begin with a right acquired by means of something in the nature of a contractual payment. The money paid by the owners is strictly a rate assessed on tonnage, or on goods, for the purpose of maintaining a public work for the benefit of the persons who contribute to it; and the contribution under the Act of 1879 is limited, for vessels of this class, to ten voyages in a year, probably because those who had promoted and obtained the Act of 1879 were satisfied that a rate limited in this way would be sufficient to provide funds adequate to the purposes of the Act. But the right to enter the harbour without payment of rates results merely from the circumstance that the Act of 1879 did not authorise the imposition of any rate except for the first ten voyages. What proves to my mind that there is no contract—at least no consensual contract—is this, that neither the owners nor the Harbour Commissioners had any power to vary the statutory liability by charging a different rate by agreement or by dispensing with any rate which the statute authorised. If we are not within the 10th section, the case I think is quite clear, because the new Act of
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The Court sustained the reclaiming-note and reversed the decision of the Lord Ordinary so far as regards the tonnage rates.
Counsel for the Pursuers— Ure— Salvesen. Agents— Morton, Smart, & Macdonald, W.S.
Counsel for the Defenders— Guthrie— Craigie. Agent— John Bhind, S.S.C.
