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Hearts of Oak
Coaling Depot
Ships
SS Kharki – 7th
August 1905
HIGH COURT OF
JUSTICE - KING'S BENCH DIVISION.
Before the
Lord Chief Justice Mr. Justice Lawrence and Mr Justice Ridley
Symons V.
Baker
This was a special case stated by the deputy-stipendiary
magistrate of Cardiff and raised a question as to the ability of his Majesty's
ships to pay pilotage dues under the Merchant Shipping Act, 1894, and the
Bristol Channel Pilotage Act and the by-laws made thereunder.
A
complaint was preferred by the respondent, Henry Baker, under the statutes and
by-laws mentioned above against the appellant, Henry Symons, for the recovery
of £4 4s for pilotage of a steamship known as the Kharki, and judgment was
given in favour of the respondent for the amount claimed and £10 10s costs. It
was proved before the magistrate that the Kharki was a coal vessel owned by his
Majesty's Government. She was a collier exclusively engaged in going backwards
and forwards to various ports carrying coal for the Navy. She flew the
Devonport Dockyard flag, but not the Navy flag, and she carried no guns. She
was not registered under the Merchant Shipping Act, 1394, but had been surveyed
by the Board of Trade, and appeared in the Navy List under the heading
"List of small steam vessels, tugs, &c., employed on harbour service"
and was described as Kharki, S., Coal Vessel (steel), 1465 tons, I.H.P. 775,
N.D. Devonport" It was further
proved that the appellant held a Board of Trade certificate as master mariner
and was employed as master of the Kharki by the dockyard authorities at Devonport.
He was not an officer of the Royal Navy. The crew of the vessel were engaged at
the dockyard under articles of agreement. The respondent is a licensed pilot
for the port of Cardiff, and at the request of the appellant he piloted the
Kharki on four occasions. On May 20, 1904, the respondent sent to the appellant
a demand in writing for the payment of the dues as provided for in the by-laws
made pursuant to section 582 of the Merchant Shipping Act, which may, in
default of payment and after demand in writing, be recovered as fines before a
Court of summary jurisdiction. The charges in question were not paid by the
appellant.
Section
711 of the Merchant Shipping Act, 1894, provides that; "this Act shall
not, except where specially provided, apply to ships belonging to her
Majesty." On the part of the appellant it was contended that
(1)
the Kharki was a ship belonging to his Majesty's Navy within the meaning of
section 741 of the Merchant Shipping Act, 1894, and that inasmuch as the Act
neither made provision for the application of section 591, which sets out the
persons liable to pilotage dues, to the King's ships nor conferred power on the
pilotage authority to fix dues for the pilotage of such ships, the appellant as
master of the Kharki was not liable to pay the pilotage dues claimed and that
the magistrate had no jurisdiction to adjudicate upon the claim ;
(2)
that by the common law the Crown was not liable for statutory dues except where
expressly bound therein;
(3)
that the appellant was not legally responsible for the payment of the dues,
because the services were ordered by him in his capacity as a public officer
and agent of the Crown, and that the proceedings to recover the dues should
have been by petition of right.
On
the part of the respondent it was contended
(1)
that section 741 merely placed the King's ships on a different footing from
other ships in that they were not liable to be proceeded against in rem, and
that the section did not preclude an action from being successfully maintained
against the master of a ship belonging to his Majesty in respect of tort or
breach of contract;
(2)
that the Kharki was not a ship belonging to his Majesty within the meaning of
section 741, and that the appellant as master was, therefore, personally liable
under section 591 to pay the dues claimed by the respondent. The case of the
"Cybele" was referred to. The magistrate was of opinion, having
regard to the foregoing findings of fact, to the terms of the agreement entered
into by the crew, and to the classification of the vessel in the Navy List,
that the Kharki did not perform the services of a " King's ship," but
was a dockyard vessel or "yard craft " used exclusively for
commercial purposes by the dockyard authorities at Devonport. He, therefore,
held that she was not a ship belonging to his Majesty within the moaning of
section 741 of the Merchant Shipping Act, 1894 ; that the appellant as her
master was therefore liable under section 591 of the Act to pay the dues
claimed. He was also of opinion that the immunity enjoyed by such high officers
and direct representatives of the Crown as those mentioned in the cases cited
on behalf of the appellant, from liability on contracts entered into by them
in, their official capacities as agents of the Crown, could not be extended to
the appellant, who, being subordinate to the coaling officer at the Devonport
Dockyard, could not be regarded as a representative or servant to whom the
Crown had delegated its authority.
The Attorney-General and Mr. Wills appeared for the
appellant; and Mr. Pickford, K.C.,
and Mr. Herman Cohen for the respondent.
The
Lord Chief Justice, in giving Judgment yesterday, said that the point involved
in the case was one of considerable difficulty, and, although he had come to
the conclusion that the appeal must be allowed, he felt that there were strong
arguments which might be adduced on both sides in regard to the matter. The
point that weighed upon the mind of the learned magistrate was that a different
rule ought to be applied in this case because the particular services upon
which this ship was engaged were what he called commercial purposes, by which
he meant the carrying of coal. He (the Lord Chief Justice) could not assent to
that view, because he thought there was nothing commercial about the services
for which the vessel was employed. He thought that the facts showed I that the
Kharki was employed as a coal tender taking coal to the ships of his Majesty's
Navy. Therefore, unless some distinction could be drawn between, the case of
one of his Majesty's ships performing a more dignified service and one
performing a most useful but less dignified service, he could not understand
the suggested distinction as to the employment of a ship for commercial
purposes. The vessel was clearly a King's ship—that was to say, it came within
the words of section 741 of the Merchant Shipping Act, 1894, and he thought
that they had, therefore, got to consider whether in this conviction it could
be supported on one of two grounds, either on the ground that a King's ship was
liable to pilotage dues under the Bristol Channel Pilotage Act, or on the
ground that the master of any ship was liable to pay the charge fixed for
pilotage if he chose to employ a pilot. He had come to the conclusion that the
language of the Act was not sufficient to make a King's ship liable to pay the
scale of fees for pilotage fixed by the by-laws made under the Act. He was of
opinion, therefore, that the Bristol Channel Pilotage Act and the Merchant
Shipping Act were not binding upon the Crown for the purpose of creating &
debt by the Crown in respect of services rendered. Then upon the other point,
as to whether the master was liable because he had ordered the pilotage, he did
not think that that could be maintained. He was the master of a King's ship,
and he acted as master on behalf of the Crown. He was an agent in the ordinary
sense, and, therefore, unless it was intended that the obligation should be a
personal one, he thought the respondent's contention fell to the ground. Unless
he could establish his major premis that the King's ships were liable to pay
the amount of the dues fixed by the by-laws, he could not make out a contract
based on the statutes which would make the master of a King's ship liable.
Further than that, he thought the master of a King's ship was there on behalf
of his Majesty, and that the only way in which it could be suggested that any
right of contract could be created was in the way indicated in the authorities
where it appeared there was ground for alleging a contract made by the State
which might be enforced by petition of right. The appeal must therefore be
allowed.
Mr
Justice Lawrence and Mr Justice Ridley agreed.
Transcribed from
The Times
Raymond
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