Attorney General v Northern Petroleum Tank Company

• Jurisdiction: Ireland
• Judgment Date: 01 April 1936
• Docket Number: (1933. No. 372 P.)
• Date: 01 April 1936
• Court: High Court (Irish Free State)

Attorney-General v. Northern Petroleum Tank Co., Ltd.

ATTORNEY-GENERAL

Plaintiff

and

NORTHERN PETROLEUM TANK COMPANY, LIMITED

Defendants.

(1933. No. 372 P.)

Admiralty - Navigation - Ship - Negligent seamanship - Damage to watermain on bed of channel - Watermain from mainland to island - Property of State - Whether Saorstát Éireann éireann capable of owning property - Right of Attorney-General to sue on behalf of the State - Navigable channel - Nuisance - Obstruction to navigation - Rights of Crown to lay watermain - Royal Dockyard - Right of navigation - Right to anchor and ground - Negligence - Degree of negligence - Wilful recklessness - Art. 11 of the Constitution - Constitution of the Irish Free State (Saorstát Éireann éireann)Act, 1922 (No. 1 of 1922), Schedule I, Art. 11; Schedule II, Art. 7 -Ministers and Secretaries Act, 1924 (No. 16 of 1924), sect. 6 - Cork Harbour Act, 1820 (1 Geo. 4, c. lii) - Harbour Clauses Act, 1847 (10 & 11Vict. c. 27), sect. 12 - Cork Harbour Act, 1903 (3 Ed. 7, c. cclvi), sects. 27, 58 and 60 - Dockyard Ports Regulation Act, 1865 (28 & 29 Vict. c. 125).

From a reservoir near Cobh (formerly known as Queenstown) on the mainland of the County of Cork, a water main was laid which conveyed water through the soil of the mainland, thence along the bed of the sea of Cork Harbour to the island of Haulbowline and thence to Spike Island. The watermain, which was constructed by the Admiralty, was laid at the bottom of deep natural channels, was well marked by beacons at both ends, and was properly charted. It was handed over by the Admiralty to the Commissioners of Public Works of Saorstát Éireann éireann subsequent to the Anglo-Irish Treaty of 1921.

Through the negligent seamanship of a pilot in charge of a steamship which was endeavouring to berth at Haulbowline Island the steamship's anchor came in contact with the watermain and fractured it.

In proceedings instituted by the Attorney-General on behalf of Saorstát Éireann éireann against the owners of the steamship in respect of the damage to the watermain, it was argued on behalf of the defendants that Saorstát Éireann éireann was not a person known to the law capable of owning or possessing property; that the watermain was not the property of Saorstát Éireann; éireann;that the action did not lie at the suit of the Attorney-General; that the watermain was an obstruction to navigation and a nuisance; and that, as there was no evidence of wilful or deliberate misconduct in the navigation of the steamship, the defendants were not liable for the damage.

Held, (1) that the watermain was part of the soil and fabric of Saorstát Éireann éireann itself and was State property.

(2) That the Attorney-General, by virtue of sect. 6 of the Ministers and Secretaries Act, 1924, was the proper person to bring proceedings in respect of damage to State property.

(3) That the watermain was neither an obstruction to navigation nor a nuisance.

Right of a vessel to anchor and ground discussed.

(4) That, even if the watermain was a nuisance, the defendants were liable for damage to the watermain occasioned by the negligence of their servants.

Corporation of Colchester v. Brooke, 7 Q.B. 339, applied.

(5) That it was not necessary for the plaintiff to show wilful or deliberate misconduct on the part of the defendants in order to recover.

Accordingly there must be judgment for the plaintiff for the amount of damages claimed.

Petrie v. S.S. Rostrevor, [1898] 2 I. R. 556, explained and distinguished.

Trial of Action.

The facts, in so far as they are material for this report, were as follows:—

On the morning of Monday, February 15th, 1932, the"Sylvafield," a large oil-tank steamship owned by the defendant company, entered Cork Harbour and went up the channel leading to the jetty at Haulbowline Island for the purpose of berthing outside a hulk known as the"Colleen" which was moored outside the jetty. The"Sylvafield" was in charge of Pilot Whelan, a licensed pilot under the Cork Harbour Commissioners, Cork Harbour being a compulsory Pilotage District. In the course of the manoeuvres necessary for berthing the "Sylvafield," one of her anchors, through (as the trial Judge subsequently decided) the negligence of the pilot, came into contact with a watermain laid at the bottom of the deep channel between Haulbowline Island and the mainland of the County of Cork, with the result that the main was fractured and the water supply to the island was cut off.

The watermain formed part of a system of water supply commencing at a reservoir near the town of Queenstown on the mainland, continued by a series of six-inch cast-iron pipes bolted together at the flanges which conveyed water through the soil of the mainland, then along the bed of the sea, then through the concrete block forming the jetty at Haulbowline, and thence to Spike Island. It had been laid in 1904 by the Admiralty, at the bottom of a deep channel of irregular surface into which it was grooved for portion of its depth by its own weight and the action of currents, but was not trenched. It was well marked by a beacon at each end, was properly charted and full information as to its location and extent was contained in the"Irish Coast Pilot," a publication for the information of mariners published under the authority of the Admiralty.

At the time the main was laid Haulbowline Island and part of the adjoining channel formed portion of a dockyard port created by an Order in Council (S.R. & Or., 1903. No. 680) dated August 10th, 1903, pursuant to the Dockyard Ports Regulation Act, 1865. Certain correspondence took place between the Admiralty and the Cork Harbour Commissioners relative to the laying of the pipe line, and by a letter dated June 2nd, 1904, the Harbour Commissioners indicated that they would offer no objection to the laying of the main subject to the condition that it should be so laid as not to form an obstruction to navigation, and that neither the Commissioners nor shipping should be held responsible for injuries arising to the main from any cause whatsoever. No specific agreement, however, seemed to have been made between the Commissioners and the Admiralty relative to the laying of the main. The main was controlled by the Admiralty from the time it was laid until the enactment of the Constitution of Saorstát Éireann éireann, and on March 31st, 1923, Haulbowline Dockyard, including the watermain, was formally handed over by the Admiralty to the Commissioners of Public Works, since when the watermain was controlled by the latter body.

By an Order in Council dated March 29th, 1923 (S.R. & Or., 1923, No. 408), Queenstown Dockyard was abolished as a dockyard port.

The Attorney-General on the 4th August, 1933, alleging that the watermain belonged to Saorstát Éireann éireann, instituted proceedings against the defendants for damages for negligence.

The defendants' defence, in so far as material, was as follows:—

"1. The defendants object and will submit that Saorstát Éireann éireann is not a person known to the law capable of owning or possessing property, and will submit that this action does not lie at the suit of the plaintiff suing as Attorney-General of Saorstát Éireann éireann.

2. The defendants deny that the pipe line . . . is or ever was vested in or owned by Saorstát Éireann éireann, and deny that the said pipe line is or was at any material time the property of, vested in, owned by, or in the possession of Saorstát Éireann éireann or the plaintiff.

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

8. The waters of the Cork Harbour where the said pipe line was are part of the waters of a tidal navigable river or of the estuary thereof; or, alternatively, of an arm of the sea, wherein a public right of navigation exists, and the said pipe line was unlawfully placed in the said waters and was and is a public nuisance and constitutes a danger and an unlawful obstruction to the defendants and other persons lawfully navigating the said waters, and the defendants owed no duty to the plaintiff or to any person to take care not to drop anchor on or near or otherwise in respect of the said pipe line.

9. The defendants say that the said pipe line was laid in or across the navigable waters of the Port and Harbour of Cork without right, title, or lawful authority, and the defendants owed no duty to the plaintiff or to any persons not to drop anchor on or near or otherwise in respect of the said pipe line.

10. Alternatively, the defendants say that the said pipe line was laid in or across the said navigable waters by the leave and licence of the Cork Harbour Commissioners, being the lawfully constituted authority for the management, maintenance and control of the said Port and Harbour, and such leave and licence were expressly subject to the conditions:—

• (1) that the said pipe line should be laid in a trench below the level of the bed of the sea,

• (2) that the said pipe line should be laid so as not to be an obstruction to navigation; and

• (3) that neither the said Commissioners nor shipping using the said Port and Harbour should be responsible for any injuries arising to the said pipe line from any cause whatever.

The said pipe line was not laid in a trench as aforesaid and was an obstruction to navigation and the defendants say that by reason thereof and by reason of the aforesaid condition (3) the defendants owed no duty to the plaintiff or to any person to take care not to drop anchor on or near or otherwise in respect of the said pipe line.

11. . . . The State is not a person and is not capable of suffering damage.

12. The defendants contend and will submit that this action cannot be brought by the plaintiff suing as Attorney-General of Saorstát Éireann éireann, or otherwise than by information, if at all."

Cur. adv. vult.

Johnston J. :—

On the morning of Monday, February 15th, 1932, the"Sylvafield," a large oil-tanker, owned by the...