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SS Kharki – 7th August 1905


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 Forward