Waterford Corporation on v Cork Harbour Commissioners

• Jurisdiction: Ireland
• Judgment Date: 28 June 1939
• Docket Number: (Record No. 1930—No. P. 273/30.)
• Date: 28 June 1939
• Court: Supreme Court

Supreme Court.

(Record No. 1930—No. P. 273/30.)

U.S. Maritime Commission v. Cork Harbour Commissioners

THE UNITED STATES OF AMERICA, represented by the UNITED STATES MARITIME COMMISSION

Plaintiffs

and

THE CORK HARBOUR COMMISSIONERS

Defendants.

Ship - Port of Cork - Harbour dues - Amount of dues payable - Reduced rate afforded to vessel loading or discharging less than one-third of her entire cargo - Meaning of words "entire cargo" - Cork Harbour Act, 1883 (46 & 47 Vict. c. clxxi), ss. 5, 7, 8, 9; First Schedule par. 1 (b); Second Schedule par. (b).

Trial of Action.

The plaintiffs, represented by the United States Maritime Commission, a Department of Government of the United States of America, claimed the sum of £2,056 15s. 11d. (subsequently modified to £2,053 15s. 0d.) as money had and received by the defendants to their use. The sum in question represented harbour dues paid under protest by the plaintiffs to the defendants as the Harbour Authority for the Port of Cork. The plaintiffs were the registered owners of eleven steamships, namely, "Cold Harbour,""Easterner," "Winona County," "Coelleda," "Bannach,""Balsam," "Bellhaven," "Kerhonksen," "Artigas,""Kearny" and "Clairton." Between the 24th November, 1929, and the 21st February, 1930, the "Cold Harbour"and "Winona County" twice entered Cork Harbour and each of the other nine vessels entered the harbour once. On each occasion, save in the case of the "Kerhonksen,"the vessels used the deep-water quay in Cork Harbour. The net register tonnage of the eleven vessels ranged from 2,920 to 4,497 tons; their dead-weight cargo capacity ranged from 7,178 to 9,421 tons. On each occasion cargo was shipped at Cork; in ten cases, all the cargo shipped was taken at the deep-water quay. On six occasions cargo was also discharged at Cork. In no case did the tonnage of cargo shipped at Cork, or the tonnage discharged there, or the aggregate tonnage of cargo shipped and discharged, exceed one-third of the dead-weight cargo capacity of the particular vessel concerned. The maximum cargo shipped on any occasion was taken by the "Winona County"(having a cargo capacity of 9,700 tons) on her first call, when 1,051 tons were shipped and 422 tons discharged; the maximum cargo discharged on any occasion, and also the maximum aggregate of tonnage shipped and discharged, was by the same vessel on her second call, when 953 tons were shipped and 1,224 tons discharged. In no case did the bulk of cargo shipped or discharged, or the aggregate bulk, exceed one-third of the cubic capacity for cargo of the vessel concerned. The vessels concerned were doing a general cargo-carrying business between Europe and North America. In 1929 the plaintiffs entered into negotiations with the Ford Motor Company, Ltd., and an arrangement was come to whereby the plaintiffs' vessels, on their return voyages from Europe, put in at Cork and shipped such of the Ford Motor Company's tractors as they had room for, for transit to New York and to ports in Canada at the rate of $16 per tractor. Certain of these tractors were boxed, while others, not intended for reshipment, were unboxed. It was agreed between the plaintiffs and the Ford Motor Company that no cargo should be stowed on top of any of the unboxed tractors, and in fact such stowage would have been dangerous. On each of the occasions in question, the vessel concerned shipped as many tractors as was practicable, having regard to this agreement, and to the amount of other cargo on board and the amount of deck space available; she loaded whatever other cargo was available and then covered the remaining floor space with unboxed tractors.

By s. 5 of the Cork Harbour Act, 1883 (1), the defendants were authorised to levy harbour dues, not exceeding those specified in the First Schedule to the Act, upon vessels entering or using the port of Cork. By s. 7 of the same

Act (1) the defendants were authorised to levy rates, not exceeding those specified in the Second Schedule to the Act, upon vessels (with certain exceptions immaterial to the present case) using the deep-water quay. The defendants demanded payment from the plaintiffs of a sum calculated in accordance with the provisions of the First Schedule (2)in respect of each of the thirteen entries into Cork Harbour made by the plaintiffs' vessels and payment of a sum calculated in accordance with the Second Schedule (3) in respect of each of the twelve occasions when one of the plaintiffs' vessels made use of the deep-water quay. The total sum claimed by the defendants amounted to £2,917 4s. 0d. and the several items making up this sum were paid by the plaintiffs under protest, to release their vessels from Cork Harbour. The plaintiffs claimed to be entitled to the benefit of the reduced rates specified in s. 9 of the Cork Harbour Act, 1883 (4), which applies to a vessel, not being a coasting vessel nor of less than 800 tons register, discharging or shipping, or discharging and shipping, "a portion not exceeding one third of her entire cargo." The plaintiffs' vessels were admittedly not coasting vessels and were all of over 800 tons register. None of the vessels used the deep-water quay for a period exceeding 14 days, the maximum period spent in Cork Harbour by any of the vessels being 11 days. The total amount admitted to be due by the plaintiffs was £863 9s. 0d., being £688 7s. 0d. entry dues and £175 2s. 0d. dues for use of the deep-water quay: these figures were based on the reduced rates specified in s. 9 of the Act. The sum claimed by the plaintiffs in this action (the modified figure of £2,053 15s. 0d. being eventually agreed on as correct) represented the difference between the sum of £2,917 4s. 0d., paid by them to the defendants and calculated under the First and Second Schedules to the Act and the above-mentioned sum of £863 9s. 0d. On the 26th day of April, 1930, the plaintiffs served the defendants with the notice of action required by s. 74 of the Cork Harbour Act, 1820 (1 Geo. 4, c. lii) (1), and on the 26th day of May, 1930, the plaintiffs issued the plenary summons herein.

In their defence, the defendants refused to admit the accuracy of the plaintiffs' figures for the net register tonnage and dead-weight cargo capacity of the vessels; the substantial ground of their defence was set out in paragraph 13 thereof, in the following terms:—

"13. The defendants aver that none of the steamships enumerated in the said schedule to the statement of claim fulfilled or complied with the conditions set forth in sect. 9, sub-sect. 1 of the Cork Harbour Act, 1883, entitling the plaintiffs as owners of said steamships to be subject only to a tonnage due of one half-penny per register ton instead of the tonnage due of not exceeding one shilling per register ton and a tonnage due of not exceeding one shilling for every ton weight of cargo discharged or shipped as well as the deep-water rate in respect of the number of tons weight of cargo discharged and/or shipped by each of the said steamships subject to and with the benefit of the proviso at the end of the said sub-sect. 1 of sect. 9 of said Act. The defendants further aver that the carrying capacity for cargo of each of the said steamships must be ascertained with reference to the actual character of the cargo carried in the ships at the times at which said dues were payable in respect of each of said steamships."

At the trial, numerous witnesses were called and evidence was given as to the structure of the vessels, their tonnage and cargo capacity, the amounts of cargo shipped and discharged and the manner of stowage of the cargo shipped; evidence was also given of the plaintiffs' shipping arrangements with the Ford Motor Company, Ltd., and of the meaning placed upon the words "entire cargo" in shipping and seafaring circles. Such further facts as are material appear sufficiently in the judgment of Hanna J. Reference was made in the pleadings and in the judgment of Hanna J. to a booklet published by the defendants and entitled"Schedule of Goods and Tonnage Dues"; paragraphs 13 and 14 of part of the schedule of dues therein contained repeated certain of the provisions of s. 9 of the Cork Harbour Act, 1883.

The plaintiffs appealed from this decision to the Supreme Court (1).

The grounds of the appeal were as follows:—

"(1) That the trial Judge misdirected himself in law in the following respects:—

(a) In holding that the abstract cargo carrying capacity of the vessels is not the test of the applicability or otherwise of the provisions of s. 9 of the Cork Harbour Act, 1883, and clauses 13 and 14 of the "Schedules of Goods and Tonnage Dues" referred to in the pleadings in this action.

(b) In holding that the correspondence between the plaintiffs and Messrs. Henry Ford & Co. constituted a contract of affreightment for a full and complete cargo or any contract of affreightment;

(c) In holding that the said correspondence or the terms of any agreement between the plaintiffs and Messrs. Henry Ford & Co. were relevant to the issues to be determined in this action;

(d) In holding that what is a portion not exceeding one-third of a vessel's entire cargo within the meaning of the said s. 9 and clauses 13 and 14 is to be decided with reference to the actual existing facts and without reference to the carrying capacity of the vessel in the abstract;

(e) In holding that in the circumstances relative to the vessels in the pleadings mentioned the question whether they or any of them loaded a portion exceeding one-third of an entire cargo within the meaning of the said section and clauses should be determined by reference to what would be a full and complete cargo according to the contract of affreightment;

(f) In that he failed to determine whether the portions of cargo discharged and loaded by the said vessels at Cork did or did not exceed one-third of the entire cargo of the said vessels within the meaning of the said section and clauses;

(g)...