U.S. Maritime Commission ork Harbour Commissioners

• Jurisdiction: Ireland
• Judgment Date: 18 July 1939
• Date: 18 July 1939
• Court: Supreme Court

Ulster Steamship Co., Ltd., v. Cork Harbour Commissioners

ULSTER STEAMSHIP CO., LTD.

Plaintiffs

and

CORK HARBOUR COMMISSIONERS, Defendants (1)

Supreme Court.

Shipping - Harbour dues - Cork Harbour - Construction of Cork Harbour Act,1883 (46 & 47 Vict. c. clxxi), s. 9 - Meaning of ship's "entire cargo."

The Supreme Court (FitzGibbon and Murnaghan JJ., Kennedy C.J. dissenting) held that the expression "her entire cargo" in s. 9 of the Cork Harbour Act, 1883 (46 & 47 Vict. c. clxxi), meant the full amount of the carrying capacity of the vessel.

Appeal from the decision of two Special Commissioners appointed for the hearing of appeals from the Circuit Court, the appellants being the Cork Harbour Commissioners and the respondents being the Ulster Steamship Co., Ltd.

The following statement of the facts is taken from the judgment of Kennedy C.J.:—

"The plaintiffs, the Ulster Steamship Company, Ltd., are the owners of a steamship called the "Fanad Head,"which has a register tonnage of 3,285 tons net, 5,200 gross.

The 'Fanad Head' on the 6th July, 1923, sailed from Montreal, having been loaded there with a mixed cargo of timber and other goods, the total quantity of which amounted to 7,071 tons 15 cwt. 3 qrs. 13 lbs. Part of that cargo was destined for Belfast and part for Cork. The original intention appears to have been to make for Cork first, but, owing to the order in which the cargo was loaded she found it necessary to make for Belfast direct. At Belfast she discharged 4,847 tons 4 cwt. 1 qr. 18 lbs. out of her cargo. She then proceeded to Cork, where she

discharged the rest of her original cargo, viz., 2,224 tons 11 cwt. 0 qrs. 13 lbs.

A dispute then arose as to the amount of dues and rates payable by the plaintiffs to the Cork Harbour Commissioners, the plaintiffs claiming the benefit of certain provisions in the Cork Harbour Special Act applicable to the case of a vessel discharging a portion not exceeding one-third of her entire cargo, which the appellants insisted was not this case. Ultimately, the plaintiffs were compelled to pay under protest the full demand of the Harbour Commissioners. They then proceeded by Civil Bill in the Circuit Court to recover from the Commissioners the sum of £68 19s. 10d., for money paid to the defendants under duress of goods, being the amount which they paid under protest in excess of the sum which they considered that the defendants were entitled to demand. Circuit Judge Kenny gave the plaintiffs a decree for the full amount claimed. An appeal was taken by the Harbour Commissioners and was heard by the Special Commissioners for hearing Civil Bill Appeals (Mr. Lynch K.C. and Mr. Shannon K.C.) who affirmed the decree of the learned Circuit Court Judge, but certified that the case involved a question of law fit to be the subject of further appeal. The Harbour Commissioners have accordingly brought the present appeal."

Cur. adv. vult.

Kennedy C.J. (after stating the facts as above):—

The special Act governing Cork Harbour upon which the question arises is the Cork Harbour Act, 1883 (46 & 47 Vict. c. clxxi), and the net matter for decision is the meaning of the expression "her entire cargo" in the 9th section of the Act. No authority has been cited which offers us any guidance. The case of Borrowman v. Drayton(1), to which counsel referred, does not really help, because it was a decision upon the interpretation of a particular agreement for the sale of a particular cargo. It was there held that the parties had agreed for the sale of the entire quantity of goods loaded on board a particular vessel on freight for a particular voyage. We have, then, no help outside the statutory context and we must, if possible, find a construction which will fit the phrase "her entire cargo" in the several places where it occurs in the Act.

The plaintiffs contend that it means the original cargo loaded on the ship, i.e., in the present case the cargo which the "Fanad Head" carried when she sailed from Montreal. The Harbour Commissioners, on the other hand, say that it means the cargo on board the ship at her arrival in Cork Harbour. Mr. Jellett has suggested a third interpretation, viz., her entire cargo-carrying capacity. The sections of the special Act relevant to consider are as follows:—

Sect. 5, together with the First Schedule, prescribes the tonnage dues which the Commissioners may demand and take in respect of all vessels entering or using the port. These are, in the case of a vessel (not being a coasting vessel), for each time of entering the port and shipping or unshipping any merchandise or cargo at the port, or in ballast, a sum not exceeding for every register ton of the admeasurement of the vessel, one shilling; but in the case of a vessel not in ballast and not shipping or unshipping any merchandise or cargo, one half penny per register ton—there are certain specified...