1861. Jan. 14, 15. [ 488 ] [489] HOLE. THE SITTINGBOURNE AND SHEERNESS (6 H. & N. 488-501; S. C. 30 L. J. Ex. 81; 3 L. T. N. S. 750; 9 W. R. 274.) THE first count of the declaration stated that, before and at the time of the committing by the defendants of the several grievances &c., there was and yet is a certain arm of the sea called the Swale, situate in the county of Kent, *and which said arm of the sea was and is a public navigable channel and passage for all the liege subjects of our lady the Queen to pass and repass with their ships and vessels at their free will and pleasure that before the times aforesaid, and after the passing and coming into force of an Act of Parliament made in a Session of Parliament holden in the 19th and 20th years of her present Majesty, intituled &c. (19 & 20 Vict. c. lxxv.), the defendants, under and by virtue of the provisions of the Act, constructed and built a swing or opening bridge over and across the said public navigable channel or passage of the Swale, and which said bridge, at the time aforesaid, was over and across the said channel or passage, and under the management and direction and control of the defendants, and without the opening of which said bridge by the defendants, at the times aforesaid, to admit ships or vessels with their cargoes navigating the said channel and passage to pass the same bridge, any such ship or vessel with its cargo so navigating the said channel or passage of the Swale at the times aforesaid could not pass through the same or through the said bridge: that, before and at the time of the committing by the defendants of the grievances &c., a ship or vessel called the Jason, laden with a cargo of goods and merchandize of the plaintiff under a charter-party with the owners of such ship or vessel, was being navigated with the said cargo, for the plaintiff, through and along the said channel or passage of the Swale, and the plaintiff and the master of the said ship at the time last aforesaid were respectively desirous that the said ship or vessel called the Jason with the plaintiff's said cargo therein. (1) Referred to Dalton v. Angus (1881) 6 App. Cas. 740, 50 L. J. Q. B. 689; Hardaker v. Idle_D. C. [1896] 1 Q. B. 335, 65 L. J. Q. B. 365. should pass through the said bridge, whereof the defendants always had notice; and that all things were done and performed, and all requests made, and all notices given, and all things and events happened and occurred, and all things existed, and all times *elapsed, to entitle the plaintiff to have the said bridge opened by the defendants, to enable the said ship or vessel &c. to pass through the said bridge, without being detained for any longer space of time than as in the said Act in that behalf mentioned: Yet the defendants, not regarding their duty in that behalf, wilfully, wrongfully and injuriously, and contrary to the said Act, neglected and refused to open the said bridge on the occasion on which the plaintiff and the master of the said ship were respectively so desirous that the said ship or vessel &c. should pass through the said bridge, for a much longer space of time than was sufficient to enable any trains or carriages, animals or passengers, ready to traverse the railway or carriage road over the said bridge, to cross the said bridge, and for opening the said bridge to admit the said ship or vessel &c. to pass the same, and for more than ten minutes on such occasion aforesaid; and thereby the defendants on the occasion aforesaid wilfully, wrongfully and unlawfully, and contrary to the said statute, detained the said ship or vessel called the Jason, so navigating the said channel of the Swale with the said cargo therein, and hindered and prevented the said ship or vessel with the said cargo therein from passing through the said bridge for a much longer space of time than was sufficient to enable any train or carriages, animals or passengers &c. to cross the said bridge, and for opening the said bridge to admit the said ship or vessel &c. to pass the same, and for more than ten minutes on the occasion aforesaid, to wit, for the space of one week and more. The declaration then proceeded to allege that thereby the ship, with the plaintiff's cargo therein, was necessarily hindered and delayed in navigating the public navigable channel of the Swale, and through the bridge to the plaintiff's wharf beyond the bridge; and the plaintiff was prevented from discharging the cargo at the wharf for a longer space of time than he *otherwise would have been, and thereby sustained great loss and damage; and the plaintiff, in order to prevent further loss and damage and to discharge the cargo according to the charter-party, was necessarily forced and obliged to unload the cargo into lighters to convey it to the plaintiff's wharf, and thereby the plaintiff was put to expense. The declaration contained similar counts for the detention of two other ships of the plaintiff, called the Admiral and the Alice. Pleas (inter alia). First, Not guilty. Secondly, that the HOLE t. SITTING BOURNE AND RAILWAY CO. [ *490] SHEERNESS [ *491 ] HOLE 2. SITTING defendants did not construct or build the said bridge, nor was the same under the management, direction or control of the BOURNE AND defendants as alleged. Issues thereon. SHEERNESS RAILWAY Co. *492 At the trial, before Cockburn, Ch. J., at the last Kent Summer Assizes, the following facts appeared: The plaintiff was a tanner, carrying on his business at Milton, near Sittingbourne, in the county of Kent. The defendants are a Company incorporated by the 19 & 20 Vict. c. lxxv., for the purpose of making a railway from Sittingbourne to Sheerness, in the county of Kent. By the 18th section of that Act (1) the defendants were empowered to construct a railway commencing in the parish of Sittingbourne and crossing the passage called the Swale, which is a public navigable channel, by an opening bridge, and terminating at Sheerness. In November, 1856, the defendants entered into a contract with one Withers for the construction of the railway and works, according to the provisions of the Act, and he accordingly erected an opening bridge across the Swale, about three miles above the Milton town wharf. The 26th section of the 19 & 20 Vict. c. lxxv., enacts "that it shall not be lawful for the Company, or any person acting under them, to detain any vessel navigating the Swale for a longer space of time than may be sufficient to *enable any trains or carriages, animals or passengers, ready to traverse the said railway or carriage road over the said bridge, to cross the said bridge, and for opening the said bridge to admit such vessel to pass through the same; and in case the Company, or any person acting under them, shall detain any such vessel for a longer space of time than ten minutes, or demand, take or receive any toll for the passage of any vessel through the said bridge, the Company or person so offending shall in every such case forfeit and pay any sum not exceeding the sum of 10l.; but nothing in this Act shall prevent any remedy for damages which any party may sustain in respect of any such detention as aforesaid." In February, 1860, the plaintiff chartered two vessels, called the Jason and Admiral, to bring a cargo of bark from Antwerp to the Milton town wharf. On the 13th February the vessels arrived at the defendants' bridge, when it was found to be closed. On application to the engineer, he stated that the bridge could not be opened for a week or a fortnight. The bridge was in fact out of repair, and could not be lifted in consequence of one of the wheels being broken. The vessels remained there until the 16th February, when the plaintiff hired three barges, and by that means discharged the cargo within the time allowed by the charter-party. At this time Withers, the contractor, had not (1) Post, p. 639, n. (1). completed the works, and he did not deliver them up to the defendants until July, 1860. It was submitted, on behalf of the defendants, that under these circumstances they were not liable. The learned Judge reserved the point and a verdict was found for the plaintiff, with 25l. 15s. damages. Hawkins, in last Michaelmas Term, obtained a rule nisi to enter the verdict for the defendants, on the ground that there was no evidence to fix them with liability. Lush and Denman appeared to show cause in the present Term (Jan. 14); but the COURT called on Hawkins and Hannen to support the rule: The contractor is liable, not the defendants. The defendants did a legal act in causing the bridge to be constructed. At common law, if the same person is owner of the soil on both sides of a navigable river, he may construct a bridge over it, if in so doing he does not interrupt the navigation. (POLLOCK, C. B.: I doubt if any person is at liberty to make a bridge over a road. It is some injury to the road to deprive it of light and air. MARTIN, B.: Probably it is a question of fact whether the erection is a nuisance to the road.) The 19 & 20 Vict. c. lxxv., recites, that "the making of a railway from Sittingbourne to Sheerness, &c., with an opening bridge at or near the King's Ferry, over the passage called the Swale, would be attended with public and local advantage." The 18th section defines the undertaking of the Company, viz. the railway and bridge over the Swale (1). The 19th section empowers the Company to make the railway and bridge according to certain plans. Section 21 requires the bridge to be constructed according to plans approved of by the Admiralty. By section 26 the Admiralty may establish rules and regulations for opening and closing the *bridge. In erecting the bridge the defendants have not exceeded the powers conferred on them by the statute, and (1) Sect. 18. "That the undertaking of the Company shall be the following railway and works, namely, "A railway commencing at or near Water Lane, in the parish of Sittingbourne, and crossing the passage called the Swale by an opening bridge, and terminating at or near the Ordnance land, near Broad Street, Mile Town, Sheerness, in the parish of Minster in the Isle of Sheppy. "A bridge over the said passage called the Swale, in the line of the said railway, at or near the ferry, called the King's Ferry, over the said passage, with a carriage road over such bridge for the passage of carriages, animals and passengers, with convenient and proper approaches thereto, as shown on the plans of the said railway hereinafter referred to." HOLE v. SITTING BOURNE AND SHEERNESS [ 493] [ *494] HOLE v. SITTING BOURNE AND the obstruction of the navigation has been caused by the imperfect execution of the works by the contractor. (WILDE, B.: Suppose the bridge was constructed so imperRAILWAY CO. fectly, that a carriage going over it fell into the water, would not the defendants be liable ?) [ *495 ] Here the injury has arisen from works in the course of construction. (POLLOCK, C. B.: How can the Company, who have contracted with a person to build the bridge for them, transfer their liability by means of that contract to some one else?) If the obstruction had been caused by the works which the Company directed the contractor to perform, they would no doubt be liable; but as the obstruction arose from the negligent mode in which the contractor executed the works, the Company are not responsible. (POLLOCK, C. B.: The maxim applies: qui facit per alium, facit per se. An obligation under an Act of Parliament differs very little from a contract. Suppose a person, who undertook to build a prison or a county hospital, contracted with another person to construct a part of it, and he executed the work imperfectly; if the former were sued, what answer would it be to say that he had engaged another person to do the work? The defendants are in the situation of original contractors.) Steel v. South Eastern Railway Company (1) decided that, where work is done for a Railway Company under a contract (parol or otherwise), the Company are not responsible for injury resulting to a third person from the negligent manner of doing the work, though they employ their own surveyor to superintend it and direct what shall be done. (POLLOCK, C. B.: There is a wide difference between a liability arising from the relation of master and servant and that which exists in the present case. The defendants are authorized *by Act of Parliament to construct certain works, and they are liable if injury results from the improper execution of the works. A person authorized by Act of Parliament to construct works cannot transfer that authority to another person without being responsible for the proper execution of them.) No doubt, a person who employs a contractor to build a house which is a nuisance to his neighbour, does not, by entering into the contract, get rid of his responsibility, but the defendants (1) 100 R. R. 836 (16 C. B. 550). |