Waterford Harbour Commissioners v British Railways Board

JudgeHenchy J.,O'HIGGINS C.J.
Judgment Date18 February 1981
Neutral Citation1981 WJSC-SC 2179
CourtSupreme Court
Docket Number(172/79)
Date18 February 1981
HIGH. -2FEB1979

1981 WJSC-SC 2179




JUDGMENT delivered the 18th day of February 1981by O'HIGGINS C.J.[Kenny J. Concurring]


These proceedings arise out of the Defendants" decision to terminate as from the 18th March 1978 a shipping service formerly provided by them from the Port of Waterford to Fishguard in Wales. The statutory obligation to maintain such a service is imposed by Section 70 of the Fishguard and Rosslare Railways and Harbours Act 1898 and the Plaintiffs claimed damages from the Defendants for a breach of this duty. They also claim damages for breach of an alleged contract made concerning the use by the Defendants of a new berth built and provided by the Plaintiffs on the North Wharf at the Port of Waterford. There were also other items of claim presented in the High Court which are not subject to this appeal.


The Plaintiffs are the Harbour Authority for the Port of Waterford and the Defendants, being the present BritishRailway Authority, disputed and defended the claim brought against them, in so far as it was based on statutory duty, on the grounds that the proceedings were not maintainable by the Plaintiffs and also that the statutory duty had, not been transferred and did not vest in them as the present British Railway Authority. This latter ground of defence has not been pursued on this appeal and it is accepted by the Defendants that such statutory duty, as was imposed by Section 70 of the Fishguard and Rosslare Railways and Harbours Act 1898, has been transferred, and, now vests in them. In so far as the Plaintiffs" claim rested on breach of contract it was resisted by the Defendants on the basis that no contract had ever been concluded between the parties. The Defendants, having failed in these defences, and having been adjudged liable to the Plaintiffs in large sums for damages before Mr. Justice Costello in the High Court, have brought this appeal. On this appeal, in addition to the issue of the Plaintiffs" right to sue and the question whether a concluded contract existed between the parties in relation to the North Wharf, questions havebeen raised by the Defendants, as appellants, in relation to the calculation and amount of damages, should their liability to the Plaintiffs be confirmed as a result of this appeal.


In this Judgment I propose to consider first of all the issues concerning the liability of the Defendants which have been so fully and ably argued by Counsel on both sides in the course of this long appeal. This will involve a consideration of the Plaintiffs" right to sue in respect of the breach of statutory duty complained of, whether such right is permitted under the statute and, if so, whether the Plaintiffs are confined to the relief thereby permitted or whether they can also and alternatively seek relief at common law. It will also involve a consideration and review of the documentary evidence exhibited on this appeal in order to determine the existence or otherwise of the contract alleged by the Plaintiffs upon which their second claim is founded. I will then consider, if necessary, such part of the Defendants"appeal which relates to the manner in which damages were assessed by the learned trial Judge.

The Plaintiffs" Right to sue

In their Statement of Claim the Plaintiffs, inter alia, sought an Order enforcing the provisions of Section 70 of the 1898 Act and also damages for breach of statutory duty. The pleading was so framed as to support a claim both under the Statute and at common law. By their Defence the Defendants put in issue whether the Section relied on had been inserted in the Statute for the protection of the Plaintiffs and whether such losses as were alleged by the Plaintiffs were recoverable in law. At the trial before Mr. Justice Costello a Non-Suit was applied for by the Defendants on the basis that the Plaintiffs had no interest under the Statute and were not protected by it or entitled to relief under its provisions and were further not entitled to sue at common law. Mr. Justice Costello in a considered and very careful Judgment came to the conclusion that the Plaintiffs were protected by the Statute and were entitled to avail of its provisions in the relief they sought, in so far as damages were concerned. Having come to that conclusion he did not find it necessary to decidewhether the Plaintiffs" proceedings were in any event maintainable at common law. He prefaced his consideration of the issues which arose in the application for a Non-Suit by an examination of the background to and the circumstances under which the 1898 Act was passed. It will be convenient if I here quote what he said:

"Before leaving the 1898 Act I should draw attention to the fact that the Fishguard and Rosslare Railways and Harbours Company (named in its title) had been incorporated in England five years previously by Act of Parliament in the year 1893 and that this Company was empowered to maintain a railway and pier and other works in the County of Pembroke in Wales. The undertakings of a railway in Ireland, the Waterford and Wexford Railway Company, as well as the undertakings of the Rosslare Harbour Commissioners were transferred to this Company in the following year and in the year after that the Company was empowered to provide a shipping service between Rosslare and Fishguard. According to the recitals in the 1898 Act there was no direct railway communication between Cork and Rosslare and in order to provide that communication and to facilitate cross-Channel traffic between the South and South-East of Ireland and the West Coast of Great Britain it was considered expedient that the Company should be authorised, inter alia, to make and maintain a new railway from Cork to Fermoy andWaterford to Rosslare. The Great Western Railway Company (theDefendants" predecessors) features principally in two ways in the 1898 Act. The Act made provision for through bookings over the railway systems which that Company operated in Great Britain and, secondly, specific provision was made in Section 70 which I have just quoted, to the effect that it was to maintain its daily service between Waterford and Fishguard (or New Milford) as efficiently as the service then being provided. In the words of the general provisions of the Act it was obviously envisaged that the new railway system being created would generate new business for the Rosslare-Fishguard cross-Channel service and Section 70 was inserted in the Act to ensure, by the obligation which it imposed on the Great Western Company that the Waterford-Fishguard service would not be adversely affected by the newdevelopments."


Section 70 of the 1898 Act provided as follows:

"70 (1) Great Western Company shall, unless and until Parliament shall otherwise determine, continue to provide or afford daily service by steamer between Waterford and either New Milford or Fishguard as efficient as that provided by them at the date of the passing of this Act and the Railway and Canal Commission shall have the same powers for enforcing this provision as they had for enforcing the provisions of Section 2 of the Railway and Canal Traffic Act 1854 Provided that in determining whetherthe service at any time provided or afforded by the Great Western Company complies with the requirements of this Section the Commissioners shall not only compare speed with speed and tonnage with tonnage but shall determine whether taking the service as a whole the combined speed and tonnage of the vessels provided or afforded at the time of the enquiry is fairly equivalent to the combined speed and tonnage of the vessels provided by the Great Western Company at the date of the passing of this Act.

(2) The provisions of Section 2 of the Railway and Canal Traffic Act 1854 and of Section 14 of the Regulation of Railways Act 1873 and of any enactments amending and extending those provisions shall apply to traffic by sea in any vessels provided or afforded by the Great Western Company under this Section in the same manner and to the like extent as they apply to the land traffic of the Great Western Company."


As will be noted under this Section the Commission referred to was given the same powers to enforce the provisions of the Section as it had for enforcing the provisions of Section 2 of the Railway and Canal Act 1854 (the Act of 1854). These powers included the issue of injunctions and fining and by an amendment under Section 12 of the Railway and Canal Traffic Act 1888 (the Act of 1888)the awarding of damages to any complaining party. On behalf of the Defendants, Mr. O'Neill has argued strongly that the phraseology and wording of Section 70 indicates that it relates primarily to the standard and efficiency of the service which the Section ordained should be continued. On this account he contended that the Section was intended for the benefit of users of the service. In other words, he submits that the Section was intended to benefit the general public and was not enacted for the benefit and protection of any party, body or authority such as the Plaintiffs. I cannot accept this view. It seems clear to me that the Section was enacted because of the possible threat to the existing service at Waterford posed by the new Rosslare-Fishguard line. If the Waterford service were to disappear, not only would the general public be inconvenienced but, in particular, the Harbour Commissioners would lose the significant revenue they earned from harbour fees. The statutory obligation imposed on the Defendants" predecessors to maintain and continue the service operated for the convenience and benefit of the public and also forthe protection and benefit of the Plaintiffs as the Harbour Commissioners. In my view, this was the object of the enactment.


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