D. Lohne on behalf of himself and all others the Owners of the Barque Ydun and the Skibs Assurance Forening Protector v The Mayor, Aldermen, and Burgesses of the City of Preston; The Ydun

JurisdictionEngland & Wales
Judgment Date11 May 1899
Date11 May 1899
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] THE YDUN. 1899 May 11. A. L. SMITH, VAUGHAN WILLIAMS and ROMER L.JJ.

Admiralty - Damage - Practice - Action against a Harbour Board - Limit of Time for Commencement of - Public Duty - Costs - Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 1.

By the Ribble Navigation and Preston Dock Act, 1883 (46 & 47 Vict. c. cxv.), the defendants, the mayor, aldermen, and burgesses of the borough of Preston, are constituted the port and harbour authority for the port and harbour of Preston.

By the Public Authorities Protection Act, which was passed on December 5, 1893, and came into force on January 1, 1894, an action against any person, in respect of any alleged neglect or default in the execution of any Act of Parliament or of any public duty or authority, must be commenced within six months next after the act, neglect, or default complained of.

The plaintiffs, owners of a barque, issued a writ, on November 14, 1898, in an Admiralty action, against the defendants for damages sustained by the grounding of their vessel on September 13, 1893, in the river Ribble within the port and harbour of Preston, through the alleged negligence of the defendants in inviting the vessel to come up when there was not sufficient water in the channel leading to the docks. The President (Sir F. H. Jeune) dismissed the action with costs to be taxed as between solicitor and client:—

Held, by the Court of Appeal (A. L. Smith, Vaughan Williams, and Romer L.JJ.), affirming the decision of the President, that the defendants were acting in pursuance of their public duties, so that s. 1 of the Public Authorities Protection Act, 1893, applied, and as that statute, dealing with procedure only, was retrospective, the action was barred after the expiration of six months from the default complained of.

APPEAL by plaintiffs, D. Lohne and others, the owners of the barque Ydun, from a judgment of the President (Sir F. H. Jeune) in favour of the defendants, the mayor, aldermen, and burgesses of the borough of Preston.

The case is reported on the question whether the defendants were persons acting in pursuance or execution of any statutory or public duty or authority, and therefore entitled to avail themselves of the provisions of the Public Authorities Protection Act, 1893.F1

The facts, so far as material were shortly that:—

On September 13, 1893, the plaintiffs' barque Ydun sustained damage by grounding in the river Ribble within the port and harbour of Preston. On November 14, 1898, the plaintiffs issued a writ in an Admiralty action against the defendants, and by their statement of claim alleged that the defendants were constituted by statute the port and harbour authority for the port and harbour of Preston; that the Ydun arrived off the entrance to the Ribble, and was taken in tow by a steamtug of the defendants to be taken up the river to the docks, and whilst so proceeding took the ground in the channel.

By par. 4, the plaintiffs alleged that “the defendants negligently invited and allowed the Ydun to come up the said channel and negligently failed to warn her not to come up, and the damage was sustained in consequence of that negligence.” Par. 5 alleged a warranty “that upon the tide in question there would be sufficient water in the channel leading to the docks, and that the said channel was and would be fit to enable the Ydun to pass up to the docks in safety.”

The defendant corporation by their defence admitted the stranding, denied that the damage was caused or contributed to by their negligence or that of their servants, and alleged that “the vessel was in charge of a duly licensed pilot whose employment was compulsory by law and who was not the servant of the corporation.”

The defendants further admitted that they were the port authority for the port and harbour of Preston under the Ribble Navigation and Preston Dock Act, 1883F2, and they relied upon the Public Authorities Protection Act, 1893.

The action was tried on March 8, 9, and 10, 1899, by the President (Sir F. H. Jeune) assisted by two of the Elder Brethren of the Trinity House.

[In addition to the cases mentioned in the judgment the following were referred to: Jolliffe v. Wallasey Local BoardF3; Indermaur v. DamesF4; Knight v. LeeF5; Reg. v. Leeds and Bradford Ry. Co.F6; Maxwell on the Interpretation of Statutes, 3rd ed., 1896, pp. 301, 312.]

On March 25 the President delivered a considered judgment in favour of the defendants on the merits, holding that the stranding was due to the negligence of the pilot, who was not the servant of the defendant corporation, and with reference to the question whether the action was barred by the operation of the Public Authorities Protection Act, 1893, the learned judge read s. 1 of the Act (already set out), and continued:—

“The question is, whether the protection of this section of the Act is given to municipal bodies in the execution of duties not strictly municipal or official, but duties arising in connection with a commercial enterprise which they are empowered by Parliament to undertake. It is curious, to begin with, to observe that the language does not in terms refer to a municipal or public authority, the words only are ‘any person,’ and, limiting one's view to the enacting words of the Act, it is not easy to see why a railway company, for example, a corporation which certainly does acts in pursuance or execution of an Act of Parliament, is not included. This clearly, however, is not what the Act means, and, as has been pointed out in the case of Fielding v. Morley CorporationF7 in the Court of Appeal, it must be gathered from the short title of the Act, ‘The Public Authorities Protection Act, 1893,’ that it is only public authorities that come within the purview of the Act. But the question is, Are the acts of a public authority protected when it is acting in pursuance of trade or business which in private hands would be of a private character? Even apart from authority, I should have entertained little doubt on the point. It has been and may be questioned whether, and to what extent, municipal authorities should be authorized by Parliament to engage, possibly in competition with private traders, in what would otherwise be the subject of private commercial enterprise. But if Parliament decides that a public authority should be so authorized, if it confers on a municipality the right and duty to assume the functions of a trader, it clothes those functions with a public character, and makes them just as much public duties of a public authority as those for the performance of which that authority was created. If a municipality is authorized to supply water or gas, I can see no distinction in character between its...

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