Bournemouth-Swanage Motor Road and Ferry Company v Harvey & Sons
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Lord Macmillan,Viscount Dunedin,Lord Warrington of Clyffe,Lord Thankerton |
| Judgment Date | 20 May 1930 |
| Judgment citation (vLex) | [1930] UKHL J0520-1 |
| Court | House of Lords |
[1930] UKHL J0520-1
House of Lords
Lord Buckmaster.
Viscount Dunedin.
Lord Warrington of Clyffe.
Lord Thankerton.
Lord Macmillan.
After hearing Counsel for the Appellants on Friday, the 14th day of March last, upon the Petition and Appeal of The Bournemouth-Swanage Motor Road and Ferry Company of 108a Cannon Street, London, E.C.4, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 20th of December 1928, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of Harvey and Sons, lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 20th day of December 1928, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have read the opinion which my Lord Macmillan has prepared upon this case, and with it I agree and desire to make no additions.
My Lords,
By the Bournemouth-Swanage Motor Road and Ferry Act, 1923, the Appellant company was incorporated and was authorised to construct a motor road and establish a ferry in order to provide a more direct means of communication between Bournemouth and Swanage. Between these two places there is interposed an extensive and nearly land-locked arm of the sea known as Poole Harbour necessitating a wide circuit for road traffic. The scheme of the Act was to shorten this route by constructing a motor road about three miles in length from the highway between Swanage and Stud-land to South Haven Point on the southern side of the entrance to Poole Harbour and establishing a passenger and vehicular ferry across the narrow strait to Sandbanks on the northern side of the entrance whence a public road leads to Bournemouth. The company looked for its remuneration to the tolls which it was authorised by sections 78 and 79 of its Act to charge for the use of the motor road and the ferry, as set out in Schedules to the Act. In the summer of 1926 the company duly completed the motor road and opened it to traffic and also provided the authorised ferry service by means of a steam vessel working on chains laid across the strait.
The sole question raised in the present proceedings is whether the Act of 1923 confers upon the company an exclusive or monopoly right of ferrying across the entrance of Poole Harbour between South Haven Point and Sandbanks. The action is directed against the owners of some motor boats who have for a number of years been in the practice of conveying passengers for hire across the Harbour entrance. The company claims a declaration of its alleged exclusive right and an injunction restraining the defendants from disturbing it in its enjoyment of the ferry. The matter came in the first instance before Russell J. who granted an interlocutory injunction which was subsequently discharged by the Court of Appeal on the ground of the balance of convenience, the Respondents undertaking to keep an account of their receipts. The action thereafter came on for trial before Romer J. who dismissed the action, holding that the company had failed to establish that the Act of 1923 had conferred upon it an exclusive right of ferry. On the case being appealed, the judgment of Romer J. was affirmed by a majority, Scrutton and Sankey L.JJ. agreeing with the trial judge while Greer L.J., who dissented, was of opinion that a statutory light to an exclusive ferry had been conferred upon the company. The company now appeals to your Lordships' House.
My Lords, the question of the precise legal character of a franchise of ferry is discussed with much learning in the case of Hammerton v. Earl of Dysart [1916] A.C. 57. Although it may be inaccurate to describe the right of the grantee as a monopoly in the strict legal sense, it was fully recognised in that case that a franchise of ferry entitles the owner to protection from the competition of rivals who seek to disturb him in the enjoyment of his privilege by diverting traffic which he would otherwise convey. It there fore the Act of 1923 has conferred on the company a franchise of ferry or an equivalent thereof the right of the company to restrain competition follows. Has it done so?
In the first place it is to be observed that the Act nowhere in terms confers an exclusive right upon the company. It can therefore only be by inference from the nature of the right conferred that the company can deduce its alleged monopoly. The inference is not one to be readily drawn for "a right of ferry is in derogation of common right, for by common right any person entitled to cross a river in a boat is entitled to carry passengers too" ( per Lord Macnaghten in Attorney-General v. Simpson [1904] A.C. 476 at p. 490). "The King's subjects are prima facie entitled to go on the Thames, as on any other public highway, from any points on the banks to which they have access and cross and recross it freely and to ferry others across" ( per Viscount Haldane in Hammerton v. Earl of Dysart, cit. sup. at p. 73). These observations apply equally, indeed a fortiori, to a ferry across an arm of the sea. The inference that it was intended to grant an exclusive right...
To continue reading
Request your trial