John C. Doherty Timber Ltd v Drogheda Harbour Commissioners

• Jurisdiction: Ireland
• Judge: Mr. Justice Fergus M. Flood
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 3419
• Docket Number: [1990 No. 12078P],No. 12078p/1990
• Court: High Court
• Date: 01 January 1993

1992 WJSC-HC 3419

THE HIGH COURT

No. 12078p/1990

DOHERTY TIMBER LTD v. DROGHEDA HARBOUR COMMISSIONERS

BETWEEN

JOHN C. DOHERTY TIMBER LIMITED

PLAINTIFFS

AND

DROGHEDA HARBOUR COMMISSIONERS

DEFENDANTS

Citations:

HARBOURS ACT 1946 S47

ANNS V MERTON LONDON BOROUGH COUNCIL 1978 AC 728

GOVERNORS OF PEABODY DONATION FUND V PARKINSON & CO LTD 1985 AC 210

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

TINSLEY V DUDLEY 1951 1 AER 252

ASHBY V TOLHURST 1937 2 AER 837

Synopsis:

CONTRACT

Bailment

Goods - Possession - Delivery - Absence - Timber consignment - Consignment placed at quayside by consignee - Gratuitous licence of harbour authority - Goods destroyed by fire - Whether harbour authority negligent - No breach of statutory duty - (1990/12078 P - Flood J. - 4/11/92) - [1993] 1 I.R. 315 - [1993] ILRM 401

|John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners|

LICENCE

Land

Use - Quayside - Goods - Storage - Harbour authority - Gratuitous permission - Unfenced quayside in public area - Goods destroyed by fire - Whether harbour authority negligent - No breach of statutory duty - (1990/12078 P - Flood J. - 4/11/92) [1993] 1 IR 315

|John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners|

NEGLIGENCE

Harbour authority

Quay - Use - Goods - Timber - Imports - Consignment stacked on quayside by permission of harbour authority - Quayside being part of public thoroughfare - Timber destroyed by fire - Liability of harbour authority - Harbours Act, 1946, ss. 47, 49 - (1990/12078 P - Flood J. - 4/11/92) - [1993] 1 I.R. 315 - [1993] ILRM 401

|John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners|

SHIPPING

Harbour authority

Quay - Use - Goods - Consignment - Storage - Goods kept at quayside by consignee - Gratuitous licence of harbour authority - Unfenced quayside in public area - Goods destroyed by fire - Whether harbour authority negligent - No breach of statutory duty - (1990/12078 P - Flood J. - 4/11/92) - [1993] 1 I.R. 315

|John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners|

1 Judgment of Mr. Justice Fergus M. Flooddelivered this 4th day of November 1992.

The Claim

2 The Plaintiffs" claim in this matter is for damages for negligence and breach of statutory duty by the Defendants.

The Plaintiff

3 The Plaintiff is a limited liability company carrying on the business of timber merchants and importers of timber.

The Defendant

4 The Defendant is the statutory harbour authority for the Port of Drogheda in the County of Louth.

The Facts

5 The Plaintiffs, in the course of their business as timber importers, had over a period of years used the Port of Drogheda for the purpose of landing cargoes of timber. In the course of the said years they had made use of the services of Messrs. Patrick Monaghan (Drogheda Limited) as their stevedores.

6 The Plaintiffs were the consignees of 141 packets of timber aboard the M.V. Mairi Evorard. This ship arrived in Drogheda at 18.30 hours on November 2nd 1988 and berthed atthe Ferry or Steampecket Quay, on the instructions of the Harbour Master. The said quay is the quay nearest to Saint Mary's Bridge in Drogheda, and, the quay itself is a public thoroughfare over which traffic passes on route to other parts of the Port and to Termonfeakin and Baltray. No part of it is enclosed.

7 At the Plaintiffs" request the said stevedores arranged customs clearance of the said timber. On November 3rd they unloaded the said timber onto the quayside, using their own crane, and forklift trucks. The timber was stacked some hundred yards to the east of the ship's berth in an area where it was customary to stack bulky cargo.

8 The Harbour Commissioners invoiced Messrs. Patrick Monaghan with tonnage dues and cargo dues. Messrs. Monaghan were also ships agents and brokers and on behalf of the ship's owner discharged the said tonnage dues, and, as stevedores and agents for the consignee paid the said cargo dues. These, with Messrs. Monaghan's own charges, were contemporaneously invoiced to the Plaintiffs.

9 It is common case that the said timber could have lain on the quayside for a period of 14 days without incurring any charge or rental and thereafter could have lain on the quayside at the discretion of the Harbour Master. If it was not removed on request, a quite substantial storage charge would have been incurred. It is also common case that the Harbour Commissioners had authority, under Statute, to seize the said cargo in the event of default of payment of any prior incurred cargo dues or indeed the cargo dues of this particular shipment.

10 Apart from the said invoice for the said dues no other documentation was raised by the Harbour Commissioners inrespect of the said cargo or indeed in respect of the berthing of the said ship.

11 The Defendants specifically concede that, they at no material time, had any form of security in operation in relation to this area of the quay or to goods stacked thereon.

12 Somewhere after midday on November 4th a number of children with lighted matches set a tar-like paper, with which the wood was covered on fire, at several points. The wood being very dry took fire, and virtually the entire consignment was consumed, notwithstanding the best efforts of the Drogheda Fire Brigade.

13 In due course the Plaintiffs were paid by their insurers and this claim is made by the insurers on foot of the subrogation clause in theirpolicy.

The Plaintiffs" Case

14 The Plaintiffs lay their claim under three alternate headings

15 1. The first ground upon which they lay their claim, is that the Defendants failed in their common law duty of care which they claimed was owed to the consignee whilst the said cargo was on theDefendants" premises.

16 2. The second ground on which they lay their claim is, that by virtue of the charge made by way of cargo dues, and of their authority in respect of the said cargo, the Defendants were bailees for reward and as such owed a duty of care.

17 3. The final basis upon which the case is laid is that there is a statutory duty of care arising from Section 47 of the Harbours Act 1946.

The Defendants" Case

18 The Defendants for their part reject the said argument and contend that they owe no duty of care and have no obligations to the Plaintiffs in respect of the said goods.

Plaintiffs" Ground No.1

19 I now turn to consider the first ground upon which the Plaintiffs lay their case. The evidence establishes that on a...