British Trawlers Federation v London and North-Eastern Railway Company
| Jurisdiction | England & Wales |
| Judge | Lord Tomlin,Lord Warrington of Clyffe,Lord Russell of Killowen,Lord Macmillan,Lord Wright |
| Judgment Date | 22 February 1934 |
| Judgment citation (vLex) | [1934] UKHL J0222-2 |
| Date | 22 February 1934 |
| Court | House of Lords |
[1934] UKHL J0222-2
House of Lords
Lord Tomlin.
Lord Warrington of Clyffe.
Lord Russell of Killowen.
Lord Macmillan.
Lord Wright.
After hearing Counsel, as well on Monday the 22d, as on Thursday the 25th, Friday the 26th, Monday the 29th and Tuesday the 30th, days of January last, upon the Petition and Appeal of the London and North Eastern Railway Company, 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 1st of March 1933, 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 the British Trawlers Federation, Limited. Consolidated Fisheries, Limited, Valori Bros., Arthur Craske and Clarence Stanley Mortimer, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
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 1st day of March 1933, complained of in the said Appeal, be, and the same is hereby, Varied by substituting for the Declarations therein contained, the following Declarations: (1) That subject to any valid byelaw made by the Defendants and duly confirmed by competent authority, each of the Plaintiffs is entitled to take or send on to the Defendants' Harbour, Docks and Fish Markets at Lowestoft motor and other vehicles for the purpose of removing fish landed or purchased by him or them at such harbour, docks or fish markets; (2) That the Defendants are not entitled to impose upon any of the Plaintiffs as a condition of the removal of fish from the said harbour, docks or fish markets any restriction upon the manner in which after removal from the Defendants' premises the fish is to be dealt with or carried or upon the place to which after such removal the fish is to be taken, or to require any of the Plaintiffs to obtain or accept licenses containing any such restriction before sending or taking vehicles to the said harbour, docks and fish markets for the purposes aforesaid; and that subject to such Variation, the said Order of His Majesty's Court of Appeal, of the 1st day of March 1933, 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,
The Appellants are the owners of a railway and harbour and docks at Lowestoft in the County of Suffolk.
The Respondents are bodies and persons connected with or interested in the trawl fishing trade at Lowestoft.
The action out of which this Appeal arises was begun by the Respondents against the Appellants claiming certain declarations to the effect that the Appellants were not entitled to impose as a condition of admitting the Respondents' vehicles to the harbour and docks of the Appellants for the purpose of removing their fish landed at or purchased in the fish markets carried on within the Appellants' premises, any restriction as to the manner in which or the place to which after removal from the Appellants' premises the fish was to be utilized or removed and claiming also an injunction and damages.
The case was tried by Branson J., who made certain declarations with which neither side was satisfied, and ordered payment by the Appellants to each of the Respondents, Valori Bros, and Arthur Craske, of the sum of £2 by way of damages and directed that all parties should pay their own costs.
The Respondents gave notice of Appeal and the Appellants gave notice of Cross Appeal.
Upon the hearing of the Appeal and Cross Appeal the Court of Appeal (Scrutton, Lawrence and Greer LL.J.) varied the judgment of Branson J. in regard to the form of the declarations, making such declarations more favourable to the Respondents and directed that the judgment as to damages and costs should stand and that the Appellants should pay the costs of the Appeal and the Cross Appeal.
Against the order of the Court of Appeal the Appellants appeal to your Lordships' House.
The Appellants are the owners of a considerable area of land at Lowestoft, comprising their railway, harbour and docks estate in that borough. This estate has been acquired and the railway, harbour and docks and other works thereon have been constructed under the powers of a series of Acts of Parliament extending over more than a century and obtained by the Appellants or their predecessors in title or some of them.
There has been carried on by the Appellants and their predecessors on the dock quays, since at any rate before 1852, a market or markets for the sale of fish landed at the port. The position of the markets is such that they can only be reached by the private roads and approaches which form part of the Appellants' estate. The question is how far the Appellants in exercise of their statutory powers or of their powers as proprietors are entitled to impose restrictions upon the access to the fish market by those desiring to buy fish thereat or remove fish therefrom.
As will hereafter appear, the Appellants are seeking to exclude all vehicles, the owner of which will not take from the Appellants a form of license, some of the conditions of which are directed to securing the removal by rail and not by road of all fish consigned to places beyond a radius of 12 miles from Lowestoft.
The history of the Appellants' undertaking began with the Norwich and Lowestoft Navigation Act, 1827, under which the Company of Proprietors of the Norwich and Lowestoft Navigation were authorised to construct certain works for the purpose of establishing a waterway between Norwich and Lowestoft and a port or harbour at Lowestoft, and certain powers to levy rates and duties were conferred on the company.
Under the Lowestoft Railway and Harbour Act, 1845, a new company called the Lowestoft Railway and Harbour Co. succeeded to the position of the original company with increased powers, including a power to build a railway from Reedham to Lowestoft.
This second company was in turn superseded by the Norfolk Railway Co. under the Norfolk Railway Act, 1846.
The rules and regulations made for the harbour in force before 1852 contained a clause to the following effect:—
A convenient fish-wharf and market being provided on the north side of the harbour, convenient also for the railway station, no fish will be allowed to land elsewhere.
New Rules and Regulations for the Harbour were brought into force in 1852, and these contained a provision that all fish were to be landed at the Fish Market on the North side of the Harbour and that no fish would be allowed to be landed elsewhere without special permission.
In 1859 there came into force new rules and regulations entitled "Rules and Regulations of Lowestoft Harbour and Fish Markets." The rules as to the Fish Markets were as follows:—
" Fish Market Rules and Regulations.
First.
No fish shall be landed at any place within the harbour excepting at the Fish Markets.
Second.
A true statement of the quantity and description of all fish delivered shall be given by the master of each fishing craft or his agent to the clerk of the market, at his office, and the landing dues thereon shall be paid forthwith unless the salesman agree in writing, signed by him, to be responsible for payment of them.
Third.
Masters of fishing craft shall clear their nets before coming alongside the markets, and shall remove their crafts immediately after the fish have been delivered.
Fourth.
Fish must be removed from the markets on the day of landing if practicable, and if not, before 8 o'clock on the following morning.
Fifth.
No fish, offal, or offensive matter shall be left in the market or in the roads or approaches thereto, nor be deposited beneath the flooring.
Sixth.
No nuisance of any kind must be committed in the Fish Markets or the approaches thereto.
Seventh.
No ballast, earth, dust, ashes, stones, or other things shall be thrown or put into or upon the harbour, fish markets, or any of the works.
Eighth.
All orders for the regulation of the markets and the business thereof, given by the harbour master or his deputies, the clerk of the market, constable, or other officials, must be strictly and promptly obeyed."
It is obvious, therefore, that at this date the Appellants' predecessors were permitting to be conducted and were controlling fish markets upon the estate which formed their statutory undertaking.
The next step was the formation by the Great Eastern Railway Act, 1862, of the Great Eastern Railway Co. through the amalgamation of the Norfolk Railway Co. and a number of other railway companies and the transfer to the Great Eastern Railway Co. of the statutory undertakings of the amalgamated companies including the statutory undertaking with which this Appeal is concerned.
By the Great Eastern Railway (Capital, &c.) Act, 1865, additional powers were conferred on the Great Eastern Railway Co.
The preamble to the Act contained ( inter alia) the following recitals:—
"Whereas it is expedient that the Company should have further Powers with reference to Lowestoft Harbour, and the Company's Station and Property in connexion therewith, and for the better Regulation thereof, and of Vessels and the Fish Market thereat; and that the Company should be...
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