was

the Port of London Authority that in consequence of the admixture with other oil its identity was destroyed and it was not entitled to exemption from rates. For the plaintiffs it w contended that the defendants could not say the oil did not come from the Narragansett's cargo. "That, however," said Pickford, J., in giving judgment for the plaintiffs," is not a good answer, as it is for the plaintiffs to bring themselves within the exemption: but in my opinion this question must be looked at as a matter of business, and if it is found that the oil which is declared for transhipment is put into a range of tanks and kept quite separate from that which is intended for distribution in London, and the plaintiffs can show that this has been certified or declared in the proper way for transhipment only, and it can be shown that it was transhipped in fact as soon as practicable, I think they bring themselves within the exemption. I cannot think that it is necessary to be able to identify each particular parcel as having come from a particular ship, if, as a matter of fact, the whole has been intended and declared for transhipment and has in fact been transhipped.

"The case where the oil intended for transhipment has been mixed with that intended for distribution in London is more difficult. In that case the defendants say they cannot tell that the oil sent out is the oil which was brought in for transhipment. I feel considerable doubt about this point, but I am inclined to think that in that case also the oil is entitled to exemption. If the plaintiffs can show that the Narragansett brought in 650 tons for transhipment only, that they have certified it for transhipment, and that 650 tons have gone from the tank containing that and some other oil, I think that is sufficient proof that it has been brought in for transhipment only, and has been transhipped." His Lordship also held that the expression" as soon as practicable" meant in the ordinary course of navigation and not as soon as practicable for the convenience of the merchant's business (q).

In the second case, British Oil & Cake Mills, Lim. v. Port of London Authority, the question was the meaning to be attached to the term "coastwise." The above Acts provided that all goods imported from parts beyond the seas or coastwise into the Port of London or exported beyond the seas or coastwise from that port, should, if imported for transhipment only, by which was meant for the purpose of being conveyed by sea only to any other port whether beyond the seas or coastwise, should be exempt from rates. Goods were imported by a steamer from beyond the sea, discharged in London into a barge and conveyed

(q) [1914] 1 K. B. 14; 83 L. J. K. B. 125.

Liverpool
Docks.

by the barge to Rochester. It was contended by the defendants that conveyance to Rochester was not coastwise, and that "by sea only" did not mean entirely by river, i.e., down the Thames and up the Medway. The Court of Appeal, Kennedy and Phillimore, L.JJ., Buckley, L.J., dissenting, held that the expression by sea only" was meant to exclude any substantial inland or overland transit whether by canal or river or rail or road. It could not have its literal and obvious meaning, for the simple reason that it would practically preclude all transhipment. They also held that the expression "coastwise" in these Acts had its ordinary meaning, being a voyage between places on the coast of the United Kingdom in contrast to beyond the seas (r).

The case of Gildart v. Gladstone (8), which turned on the construction of certain statutes incorporating and regulating the Liverpool Docks, is one of importance, in which the question as to what constitutes the same voyage out and home was discussed.

By the Liverpool Dock Acts of 8 Anne and 2 Geo. 3., certain tonnage duties are payable to the dock company on all vessels sailing with cargoes outwards or inwards, so as no ship shall be liable to pay more than once for the same voyage out and home, if there be either an outward or an inward cargo on such voyage; but without making any advance if there should be both. Thus, a Liverpool ship carrying a cargo out to the West Indies, and bringing another home to Liverpool, is only liable to pay one duty, viz., the duty outwards; and a foreign ship bringing a cargo to Liverpool, and carrying another out, is only liable to pay the duty inwards. But where a ship was built in another port, for an owner residing at Liverpool, where she was registered, and sailed to the West Indies without first coming to Liverpool, but brought her return cargo there as to her home; this was held to be one entire and distinct voyage within the meaning of the Acts, for which the duty inwards was payable, and did not privilege the ship from payment of the duties again, when next she sailed with another cargo upon her outward voyage to the West Indies, though, in fact, she only used the dock inwards on her first voyage; for the privilege of using the docks with an outward and

(r) [1914] 3 K. B. 1201; 83 L. J. K. B. 1777; affirmed by the House of Lords [1915] A. C. 993; 84 L. J. K. B. 1849. See also Mersey Docks & Harbour Board v. Irving, Son & Jones (1917), 142 L. T. Jo. 349; where Sankey, J., had to decide whether goods transhipped under certain circumstances at London and conveyed to Liverpool were imported coast wise within the meaning of the Mersey Docks (Consolidation) Act, 1858, s. 234.

(s) In error, 11 East, 675; see, too, Gunning, p. 135; 12 East, 439; 2 Taunt. 97; and cf. Lord Brougham's remarks in Stockton and Darlington Rly. v. Barrett, 11 C. & F. 590; ante, p. 591.

inward cargo upon one payment of duty is confined to the same voyage out and home (t).

The same point was raised in another action in which the same parties were concerned (u), where it was held that a voyage out from Liverpool with a cargo to Halifax in North America, where the ship delivered it, and took in another cargo there for Demerara in South America, and after delivering that returned to Liverpool with a cargo from Demerara, was all the same voyage out and home within the meaning of the Liverpool Dock Acts (8 Anne and 2 Geo. 3.), and chargeable only with one tonnage rate for the use of the docks (x).

Where, however, an Act provided that vessels trading inwards to the port of Liverpool should pay dock rates according to a fixed scale proportioned to the distance of the port from which they were trading, and that vessels arriving in ballast, but trading outwards, should pay in proportion to the distance of the port to which they were trading; it was held that a vessel that had discharged her cargo at a port in England, and taken on board ballast prior to sailing to Liverpool for the purpose of loading a cargo for the West Indies, and which took on board a bale of cotton and a few other articles, admittedly in order that she might pay dock rates as a vessel trading inwards from the port where she took on board such articles, and not as a vessel arriving in ballast, was a vessel arriving in ballast within the meaning of the Acts (y).

Dock Co. v.

The Southampton Dock Company are empowered by their Southampton Act, 6 Will. 4. c. xxix., s. 149, to charge for the landing of goods Hill. in their docks the several sums mentioned in the schedule thereto annexed, and for articles not therein particularised such sums as shall be equal to the sums affixed on goods, &c., "of a similar nature, package, value, and quality" in the schedule. All the charges mentioned in the schedule were of small fixed sumsnone being ad valorem except the charge for "sculptured marble":-Held, that the company were not entitled to make an ad valorem charge for the landing of goods not enumerated, or at all approaching in "nature, value, and quality" to those enumerated in the schedule (z).

(t) Irish linens imported to Bristol are brought from ports beyond the seas and not coastwise" Battersby v. Kirk, 5 L. J. C. P. 166; 2 Bing., N. C. 584.

(u) Gildart v. Gladstone and Gladstone, 2 Taunt. 97; S. C., in error, 12 East, 439.

(x) Ibid.; cf. on this point, Trustees of Liverpool Docks v. Gladstone and another, 5 M. & S. 328; see Gunning, p. 137; and Kingston-upon-Hull Dock Co. V. Huntingdon, 2 Chit. Rep. 597; see Woolrych, p. 315.

(y) De Garteig v. Mersey Docks and Harbour Board, 37 L. T. (N.s.) 411, C. P. D.

(z) Southampton Dock Co. v. Hill, 14 C. B. 243; 11 W. R. 646.

Tyne Keelmen v. Davison.

Dresser v.
Bosanquet.

66

By a local Act (a), a toll or tax of 1d. per chaldron is imposed upon the owners or lessees of any collieries or coal mines near the river Tyne," for every chaldron of coals sold or delivered by them to be exported from or out of the said river, and which shall be so exported; such toll "to be collected or received at the offices or places respectively where the contracts for the sale or delivery of such coals are usually made," in aid of the Tyne Keelmen's Charitable Fund, created by 28 Geo. 3. c. 59. Since the formation of railways and docks, the services of the keelmen in the shipment of coals on the Tyne have become unnecessary. the coals being brought down to the wharf or quay by railways and shipped direct :-Held, that coals shipped on the Tyne from collieries "near" to the river were still liable to the payment; and that a colliery situate ten miles from the Tyne is near the said river Tyne" within the meaning of the Act. Held, also, that coals brought for shipment to the Tyne by a public railway from collieries which, before the formation of railways, had always shipped their coals on the river Wear, to which they had been conveyed by private tramways from the collieries, were equally liable to the keelmen's dues (b).

By the Leith Harbour and Docks Act, 1892, s. 58, the Harbour Commissioners are empowered to levy rates from the owners of every ship coming into or going out of the harbour and docks of Leith; and the statutory regulations provide that all vessels entering the harbour "only for safety, convenience, or repairs, shall be charged half rates, but if they shall land or take on board goods or remain in the harbour or docks above one month they shall be charged full rates."

It was held, that as the vessel had entered Leith harbour under a contract between the owners and the charterers that she should be delivered there to the charterers she had not entered "for convenience only," and that the owners were liable in payment for the full rates due for her entry (c).

The Commercial Dock Company was by 51 Geo. 3. c. 66 (local and personal declared public), empowered to distrain and sell ships for non-payment of rates and charges due for dockage of ships. receiving, warehousing, and storing goods; and if any consignor or consignee of any goods or merchandise neglects or refuses to pay rates or charges, the company may detain goods, &c., until paid, and, if removed before payment, may distrain any goods of the owner, consignor, or consignee, and detain and

(a) 1 Geo. 4. c. liii.

(b) Society of Guardians of Keelmen of the Tyne v. Davison, 16 C. B. (N.S.) 612; Society of Guardians of Keelmen of the Tyne v. Elliott, 16 C. B. (N.s.)

(c) Aktieselskabet "Lina" v. Turnbull & Co., [1907] S. C. 507.

sell same, or may prosecute actions for those duties. The plaintiff having purchased from the owners some timber stored at the Commercial Docks, and which was entered in the books of the company in the name of a broker, the company refused to transfer the timber into the name of the plaintiff, on the ground that the broker was indebted to them for rent and charges in respect of other goods standing in his name in the books of the company, although the plaintiff tendered to them the specific rent and charges due in respect of the goods purchased by him:-Held, 1st, That the above statute conferred on the company no right to do so; 2nd, That the company could not rely on any general lien to that extent by the common law, supposing that such existed, as the statute must be taken to displace such right (d).

canals.

Right to, de

rived entirely from the Act

of Parliament creating.

"Those who seek to impose a burthen upon the public should Tolls on take care that their claim rests upon plain and unambiguous language," said Bayley, J., in Leeds and Liverpool Canal v. Hustler (e). This principle, which has been confirmed by several important decisions (f), applies very fully to canal tolls; for where a canal is made by Act of Parliament, the right to take tolls is derived entirely from the Act, and is to be considered as a bargain between the owner and the public; and where there is any ambiguity, it must be construed against the canal proprietors, who can claim nothing which is not given them by the Act (g). Apart from the provisions of their special Act there appears to be no obligation on a company, however, to impose an equal toll on all persons, provided they keep within the amount appointed by their Acts (h), though on grounds of public policy such an equality may be desirable for the public who have an interest that the canal should be kept up, and the tolls consequently to be kept as equal as possible (i). The legality of canal tolls is now, however, regulated by 51 & 52 Vict. c. 25 (k).

(d) Dresser v. Bosanquet, 4 B. & S. 460; 34 L. J. Q. B. 374.

(e) 1 B. & C. 424; 2 D. & R. 556; 36 R. R. 746, 748.

(f) Britain v. Cromford Canal, 3 B. & Ald. 140; Hull Dock Co. v. Browne, 2 B. & Ad. 58; 36 R. R. 459; Gildart v. Gladstone, 11 East, 675; Barrett v. Stockton and Darlington Rly., 2 Scott, N. R. 337; 2 M. & G. 134; Stockton and Darlington Rly. v. Barrett, 11 C. & F. 590; 8 Scott, N. R. 641.

(g) Stourbridge Canal v. Wheely, 2 B. & A. 793; 36 R. R. 746; see, too, Woolrych, p. 312.

(h) Cockburn, C.J., in Hungerford Market Co. v. City Steamboat Co., 7 Jur., N. S. 67; see ante, p. 570.

(i) Lees v. Manchester and Aston Canal, 11 East, 645; 11 R. R. 297.

(k) The Railway and Canal Traffic Act, 1888 (51 & 52 Vict. c. 25) empowers the railway and canal commissioners to hear and determine any questions or disputes involving the legality of the statutory tolls levied by canal companies and to enforce payment of such tolls or so much of it as they decide to be legal; and if any company charges one trader or class of traders in any district lower tolls than they charge other traders, this is, primâ facie, an undue preference (sections 10, 27 (sub-section 1), 36). Section 15 of the Regulation of Railways Act, 1873 (36 & 37 Vict. c. 48), is made applicable to the charges of a canal company; and the Railway and Canal Traffic Act, 1854 (17 & 18

No obligation. on companies to impose equal tolls.