C. W. Shipping Company Ltd v Limerick Harbour Commissioners

JurisdictionIreland
JudgeO'Hanlon J.,
Judgment Date01 January 1989
Neutral Citation1988 WJSC-HC 1833
CourtHigh Court
Date01 January 1989
Docket NumberNo. 138/1987

1988 WJSC-HC 1833

THE HIGH COURT

JUDICIAL REVIEW

No. 138/1987
C W SHIPPING CO LTD v. LIMERICK HARBOUR COMMRS

BETWEEN

C.W. SHIPPING COMPANY LIMITED
APPLICANT

AND

LIMERICK HARBOUR COMMISSIONERS
RESPONDENTS

AND

SHANNON MARINE LIMITED
NOTICE PARTY

Citations:

HARBOURS ACT 1946 S53(1)

REED V INGHAM 23 LJMC 156

WATERMEN'S ACT 7 & 8 GEO 4 CH LXXV S37

HARBOURS ACT 1946 S49

HARBOURS ACT 1946 2ND SCH PART II PARA 14

HARBOURS ACT 1946 S60

DUNLOP V WOLLAHRA MUNICIPAL COUNCIL 1981 1 AER 1202, 1982 AC 158, 1981 2 WLR 693

R V HALLETT 45 ILTR 84

FARNWORTH V MANCHESTER CORPORATION 1929 1 KB 533

GREAT CENTRAL RAILWAY CO V NE STEAM FISHING CO 22 TLR 520

JH PIGOTT & SON V DOCKS & INLAND WATERWAYS EXECUTIVE 1953 1 QB 338

BOURGOIN SA V MIN AGRICULTURE 1985 3 AER 585

TRUSTEES OF DUNDEE HARBOUR V NICOL 1915 AC 550

KINGSTON-UPON-HULL DOCK CO V LA MARCHE 1828 8 B & C 42

STROUD'S JUDICIAL DICTIONARY 5ED P2846

WORDS & PHRASES LEGALLY DEFINED 2ED V2 P173, 239

PORT & HARBOUR LIMERICK BYE-LAWS

PORT OF LONDON ACT 1968

COULSON LAW OF WATERS P354

HARBOURS ACT 1946 S47

HARBOURS ACT 1946 SCH II ART 14

Synopsis:

LICENCE

Grant

Criteria - Necessity - Statute - Power - Fair procedures - Application by tugboat owner for authority to operate vessel in specified area - ~See~ Shipping, harbour - (1987/138 JR - O'Hanlon J. - 24/8/88) 1989 ILRM 416

|C.W. Shipping Co. v. Limerick Harbour Commissioners|

SHIPPING

Harbour

Commissioners - Powers - Licence - Grant - Application for licence authorising use of tugboat in harbour - Fair procedures in considering application - Criteria for decision of commissioners - Reasons for refusal to be stated - Whether licence necessary - Interpretation of enactment - ~Ejusdem generis~ rule - Damages for wrongful refusal - Section 53 , sub-s. 1, of the Act of 1946 provides:- "A harbour authority may, at their discretion, issue to the owner of a lighter, ferry- boat or other small boat which such owner proposes to use or ply for hire habitually in the harbour of the harbour authority a licence authorising such use or plying for hire" - Sub-section 3 states that such habitual use or plying for hire in a harbour without authorisation of a licence granted under the section is an offence which renders the owner of the boat liable on summary conviction to a fine of #5 - The applicants were not convinced that the respondents" licence to operate a tugboat within the respondents" jurisdiction was required by s. 53 of the Act of 1946 but the applicants were unable to do business with ships agents who believed that such licence was necessary - Therefore, the applicants applied to the respondent commissioners, who were a harbour authority, for a licence to operate the applicants" tugboats in the Shannon Estuary within the area of the jurisdiction of the respondents - The respondents owned 51% of the shares of Shannon Marine Ltd. and the remaining 49% of those shares were owned by Marine Transport Services Ltd. - The respondents had formed Shannon Marine in partnership with Marine Transport Services for the purpose of providing adequate towage facilities within the respondents" jurisdiction to meet an anticipated increase of shipping in the Shannon Estuary from the year 1980 onwards- In 1982 the respondents granted Shannon Marine a licence to operate the business of tug-owners in the Shannon Estuary and the Port of Limerick - That licence had been renewed annually and the respondents had not granted a similar licence to any other person - Shannon Marine had traded at a loss for the first two years of their operations but had started to make a modest profit - There were several inconclusive meetings between the representatives of the applicants and the respondents but the applicants were unable to discover the respondents" criteria for granting the licence which the applicants sought - The respondents refused to grant the applicants such licence and, when requested to do so, refused to state their reasons for such refusal - Having obtained leave, the applicants applied to the High Court for an order of certiorari quashing the respondents" decision to refuse to grant a licence under s. 53 of the Act or for a declaration that such licence was not required by that section in respect of the use by the applicants of their tugboats within the respondents" jurisdiction - Held that the phrase "or other small boat" in s. 53, sub-s. 1, of the Act of l946 must be interpreted ~ejusdem generis~ with the preceding words of that sub-section and that the use of tugboats did not fall within the terms of the sub-section: ~Reed v. Ingham~ 23 L.J.R. 156 considered - Held that the applicants were entitled to an order declaring their right to operate their tugboats in the said area without a licence of the respondents granted under s. 53 of the Act - Held, on the assumption that s. 53 did apply to the use of tugboats, that an applicant for a licence under that section was entitled to certain minimum rights such as the right to be informed of the criteria adopted by the respondents in considering such application and the right to be informed of the respondents" reasons for their refusal of the application - Held that the evidence showed that the respondents failed to reach a firm conclusion about the proper criteria to be applied in their consideration of the application for a licence and that they had failed to apply the rules of natural and constitutional justice in their consideration of the application by their failure to inform the applicants of such criteria - Held that the respondents had not been shown to have acted otherwise than in a bona fide manner in considering the application and that the applicants uere not entitled to recover damages from the respondents: ~Dunlop v. Woollahra Municipal Council~ [1981] 1 All E.R. 1204 considered - Harbours Act, 1946, ss. 53, 60- (1987/138 JR - O'Hanlon J. - 24/8/88) 1989 ILRM 416

|C.W. Shipping Co. v. Limerick Harbour Commissioners|

NATURAL JUSTICE

Fair procedures

Licence - Application - Consideration - Criteria - Necessity - Reasons for refusal to be given -~See~ Shipping, harbour - (1987/138 JR - O'Hanlon J - 24/8/88) 1989 ILRM 416

|C.W.Shipping Co. v. Limerick Harbour Commissioners|

STATUTORY INTERPRETATION

Ejusdem generis

Harbour authority - Licence - Grant - Power to issue licence to owner of a lighter, ferry-boat "or other small boat" - Owner of tugboat applied for licence -~See~ Shipping, harbour - (1987/138 JR - O'Hanlon J. - 24/8/88) 1989 ILRM 416

|C.W. Shipping Co. v. Limerick Harbour Commissioners|

TRIBUNAL

Decision

Reasons - Absence - Harbour authority - Tugboat licence - Refusal of licence unexplained - Failure to adopt proper criteria - Fair procedures - ~See~ Shipping, harbour - (1987/138 JR - O'Hanlon J. - 24/8/88) 1989 ILRM 416

|C.W. Shipping Co. v. Limerick Harbour Commissioners|

WORDS AND PHRASES

"Other small boat"

Harbour - Authority - Powers - Licence - Application by owner of tugboat - Fair procedures in considering issue of licence - Necessity to adopt proper criteria - ~See~ Shipping, harbour - (1987/138JR - O'Hanlon J. - 24/8/88) 1989 ILRM 416

|C.W. Shipping Co. v. Limerick Harbour Commissioners|

1

Judgment delivered by O'Hanlon J., the 24th day of August, 1988.

2

This is an application for judicial review of a decision made by Limerick Harbour Commissioners, refusing an application made by the Applicants, C.W. Shipping Company Limited, under sec. 53 of the Harbours Act, 1946, for the issue of a licence authorising the Applicants to operate tugs in the Shannon Estuary within the area of jurisdiction of the Limerick Harbour Commissioners.

3

Before considering the legal issues which arise for consideration in the case it is desirable to refer to the events and factual background which led up to the present application.

4

The Respondents have at all material times been acting in exercise or purported exercise of the powers conferred on them by the provisions of the Harbours Act, 1946. Part of the case made on behalf of the Applicants in these proceedings is that the Respondents have acted under a misapprehension as to the nature of those powers. There is also a dispute between the Applicants and the Respondents as to the geographical area of jurisdiction of the Respondents for the purposes of the Harbours Act, 1946, but that issue does not arise for consideration in the present application for judicial review, having been sent for hearing as if the application for a declaratory order in this regard had been brought by plenary summons.

5

The evidence on affidavit, supplemented by oral evidence, in the present proceedings, makes it clear that in recent years there has been a very significant expansion in the number and size of vessels coming to ports in the Shannon Estuary (over the whole of which said estuary the Respondents claim to exercise jurisdiction under the provisions of the Harbours Act, ( 1946). This has coincided with the opening up of the Alumina Plant at Aughinish and the ESB Station at Moneypoint, and has produced a corresponding expansion in the need for the services of tugs within the estuary.

6

Prior to the year 1980, such towage services as were required in the estuary were provided by the Respondents themselves, and the work was performed by using a dredger which was equipped for towage duty when required. The Respondents, however, foresaw the expansion in trade which was about to take place and from the year 1980 onwards they were making preparations for organising adequate towage facilities for the future. They advertised in the Lloyd's list dated 19th November, 1980, for tug-owners to make application for the provision of towage services in the estuary, and received a large number of applications from interested parties in different parts of the world, all of which were carefully scrutinised by a Board of Assessors appointed to advise the...

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