Commissioners of Public Works v Doherty

• Jurisdiction: Ireland
• Judgment Date: 16 November 1935
• Date: 16 November 1935
• Court: High Court (Irish Free State)

Commissioners of Public Works v. Doherty

THE COMMISSIONERS of PUBLIC WORKS

Plaintiff

and

OWEN DOHERTY, Defendant (1)

High Court.

Piers and Harbours - "Certified work" - Slip situated below high water mark within 200 yards of "certified work" - Claim for tonnage dues and tolls on user of slip - Order of Minister for Industry and Commerce fixing tolls. - - Public Works (Ir.) Act, 1836 (6 & 7 Wm. 4, c. 108), sects. 10, 13 -Fishery Piers and Harbours (Ir.) Act, 1846 (9 Vict. c. 3) sects. 65, 69, 70, 71 - Marine Works (Ir.) Act, 1902 (2 Ed. 7, c. 24) sects. 6, 7.

The Marine Works (Ir.) Act, 1902, gives no power to the Commissioners of Public Works to collect tolls on fishing boats using a slip situated below high water mark within a distance of 200 yards from the seaward extremities of a "certified work" (as specified in the Act) but not forming part of said"certified work," the power to collect tolls being limited to the use of"certified works."

So held by the High Court (Sullivan P. and O'Byrne J: Hanna J. diss.)

Case Stated by the District Justice sitting at Dungloe, County of Donegal, for the opinion of the High Court.

At the sitting of the District Court held at Dungloe, in the County of Donegal, on the 14th day of October, 1932, the plaintiffs, the Commissioners of Public Works, sued the defendant, Owen Doherty, for the sum of £1 7s. 1d.,"being for tonnage dues on a fishing vessel using the marine works at Gortnasate and for charges on fish landed by the said defendant from the said vessel thereat, and payable by the said defendant pursuant to the Order of the Minister for Industry and Commerce, made in that behalf on the 12th day of March, 1931, and also due by settled account between the said plaintiffs and the said defendant."

The case was several times adjourned and was finally heard by the District Justice on the 12th day of May, 1933.

At the said hearing the following facts, being either admitted or proved, were found by the District Justice, viz.:—

(a) The pier and road leading thereto at Gortnasate harbour in the County of Donegal were constructed by the plaintiffs in the year 1904 pursuant to the Marine Works (Ireland) Act, 1902, and are a "certified work" within the meaning of the said Act (2).

(b) There are situate near the said pier and in an area within 200 yards of the seaward extremity thereof three landing slips, known, respectively, as the East Slip, Middle Slip and West Slip.

(c) The plaintiffs were at all material times in management and control of the said harbour, and collected the tolls and rates payable in respect of the use thereof.

(d) The said East, Middle and West Slips were erected and used prior to the passing of the Marine Works (Ireland) Act, 1902, having been constructed by the local fishermen for the purpose of landing fish thereat, the work being carried out by voluntary labour and with the assistance of a grant of about £25 made by the then Congested Districts Board for Ireland; and no claim for dues or tolls in respect of their use was made prior to 1931.

(e) By an Order, dated the 12th day of March, 1931, made pursuant to sub-sect. 1 of sect. 6 of the Marine Works (Ireland) Act, 1902, and the Marine Works (Ireland) Act, 1902, Adaptation Order, 1930, the Minister for Industry and Commerce with the approbation of the Minister for Finance fixed the tolls and rates to be payable by any vessel using (inter alia)the said harbour, and it was thereby provided that the limits, within which the power to levy the tolls and rates prescribed by the said Order extended should comprise "any certified work and the appurtenances thereof and an area below high water mark within a distance of two hundred yards from the seaward extremities of the work in every direction," and the said Order was duly published. By the said Order a boat licence of 10s. was payable in respect of every motor boat engaged in fishing and using the harbour, pier, or landing place; and the sum of three pence per cran was payable for each cran of herrings or mackerel landed. [A copy of the said Order was annexed to the Case Stated and formed part of the Case.]

(f) The defendant is the owner of a motor boat and was aware of the terms of the said Order.

(g) On divers dates the defendant, being engaged in fishing in the said vessel, used the East, Middle and West Slips and landed herrings or mackerel there.

(h) Each of the said slips was so used below high water mark and within a distance of 200 yards from the seaward extremity of the certified work.

(i) The slips in question are below high water mark, the

term being understood in the horizontal sense, but the surface of each is above high water mark speaking in the vertical sense.

(j) On the tolls and rates alleged to have been payable in respect of the said user having been demanded of the defendant he refused to pay same.

[A map of the said Gortnasate harbour, produced and given in evidence at the hearing of the case, and admitted by both parties to be correct, was annexed to and formed part of the Case. The high water mark in the said harbour was shewn on the said map, and the greater portion of each of the said slips was below high water mark as shewn thereon.]

It was admitted on behalf of the defendant that, if the tolls and rates were payable under the said Order in respect of the use of the said slips, the sum of £1 7s. 1d., claimed by the plaintiffs, was due and recoverable, but it was contended that the Marine Works (Ireland) Act, 1902, only authorised the charging of rates and tolls in respect of the use of a certified work (in this case the said pier and road) and did not authorise the charging of rates and tolls in respect of the user of the said East, Middle and...