Jolliffe and another v Wallasey Local Board
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1873 |
| Date | 13 November 1873 |
| Court | Court of Common Pleas |
Court of Common Pleas
Keating, J., Brett, J., Denman, J.
Jolliffe and another v. Wallasey Local Board
Wilson v. Mayor of HalifaxENR L. Rep. 3 Ex. 113 17 L. T. Rep. N. S. 660
Davis v. Curling 8 Q. B. 286
Newton v. EllisENRUNK 5 E. & B. 115 24 L. J. 337, Q. B.
Selmes v. Judge L. Rep. 6 Q. B. 724
Reg. v. RussellENR 6 B. & C.566
Reg. v. WardENR 4 Ad. & E. 384
Obstruction to tidal river Negligent exercise of statutory powers Omission to indicate obstruction by sufficient buoy
Per Denman, J., Reg. v. Russell (6 B. & C. 566) is overruled by Reg. v. Ward (4 Ad. & E. 384.)
146 MARITIME LAW CASES. Q. B.] Jolliffe And another v. Wallasey Local Board. [C. P. Court of Commen Pleas Reported by H. F. Pooley and John Rose. Esqrs., Barristers-Law. Nov. 10 and 13, 1873. JOLLIFERr AND ANOTHER v. Wallasey Local, Board. Obstruction to tidal rivet" - Negligent exercise of statutory powers - Omission to indicate obstruc-tion by sufficient bucy - Notice of action. By a local Act the defendants were authorised to construct in conformity with certain deposited plans, " and upon the lands delineated upon the said plans," a pier or" landing stage, *' together with such other worksr and conveniences in con-nedion therewith," as they should from time to time think fit. Before the landing stage was com-menced plans of the proposed worke were 'o be deposited at the Admiralty for approval. The local Act was to be executed " subject to the powers and provisions" of the Public Health Act 1848, sect, 139 of which requires notice of action "for anything done or intended to be done" under the provisions. The defendants deposited plans (differing in extension from the plans under the Act) which received the approval of the conservators of the river, representing the Admiralty, and constructed the landing stage in conformity therewith, The landing stags teas a floating one, and was moored by anchors lying in the bed of the river. The position of the anchors was indicated by a buoy, which, being carried down by the tide, became concealed from view. One of the anchors becoming displaced, stove in and swamped a vessel of the plaintiffs which was lawfully navigating the river. Held (1), that the, anchor, although placed where it was for the benefit of thepublic,wasan obstruction which the defendants could not have created without statatary authority and was a nuisance to the river; (2) that the defendants were guilty of negligence in their management of the buoy, but (3) that inasmuch as the plane had received the approval of the Admiralty, such approval was tantamount to the sanction of the Act, so as to en-tiiU the defendant to statutory notice of action. Notice of action must be given in a case of non-feasance, just as finch as in a case of mis-feasance. Per Denman, J., Reg. v, Russell (6 P. & C.566) is overruled by Reg. v. Ward (i Ad. & E. 384.) This way an action for obstructing a navigable river, whereby a vessel of the plaintiff was swamped. The declaration stated that the defendants had constructed, and were in possession, and had the management of a certain landing stage, called the New Brighton Landing Stage, upon a certain public navigable tidal river, and defendants Bunk, placed, and kept, in and upon the bed of the said river, at a part thereof where it was navigable, a certain anchor of the defendants. attached by a cable in the said landing stage-, which said anchor was covered with water and wholly concealed from view, and in such a position and at such a dopth, that vessels in navigating the said river, and passing in and along and over the said place where the said anchor was so sunk and placed us aforesaid, without having notice of the said anchor being so sunk and being in the said place, would he and wore in great danger of striking agents the same, and of being thereby damaged, and while the said anchor was so sunk, MARITIME LAW CASES. 147 C. P.] Jolliffe And another v. Wallasey Local Board. [C. P. &c., no notice was given nor any proper precaution token by the defendants to guard against the said danger to vessels lawfully navigating the said river, and passing in, along, and over the said place where the said anchor was so sunk, and by means of the premises a vessel of the plaintiffs, while lawfully navigating the said river and passing in, along, and over the said place, struck against the said anchor and was swamped. The second counte charged that the anchor became in a dangerous position, whereby vessels navigating the river and passing over the place where the anchor was frank were in danger of striking against the same, where of the defendants had notice, yet the defendants wrongfully and negligently allowed the said anchor to be, and kept the same for a long and unreasonable time in, the said dangeorus position. The third count charged that by the Wallasey Improvement Act 1864, it was enacted that the defendants, subject to the provision- of the said Act and the statutes incorporate therewith, might construct certain works according to certain deposited plans, and among the said works a certain pier or landing stage at New Brighton, with all such jetoles, &c., and conveniences, as the defendants should from time to time think fit, and that previously to commencing the said pier, the ] defendants should deposit plans at the Admiralty i Office for approval, and should not extend or altar the said works without the like approval, and that the defendants did deposit such plans, whereto the approval of the Admiralty was signified, yet the defendants did not construct the said pier in accordance with the said approval and the said Act of Parliament, but so that the same deviated from the line or situation thereof shown on the deposited plane, beyond the Hoiks of deviation shown on the said plans, without the defendants having obtained such like approval to such deviation, and by reason of so doing placed and kept the anchor us in the first count mentioned, and omitted to give notice and to take percaution as in the first count mentioned. The fourth count charged the same matter as the third count, omitting all mention of the approval of the Admiralty Office. The material pleas "were Not guilty by statute 11 & 12 Vict. c. 73, a. 139, a public Act; and 21 & 22 ct. c. 63, s. 4; 27 & 28 Vict. c. 117, s. 2, and 30 $ ;i Vict. c. 132 s. 5.(a) (a) The following are the material Parts the enact-monts referred to in the plea: 11 & 12 Vict. c. 63 (the Public Health Act 1848), s. 139: " No writ shall be sued out . . . for anything demo or intended to be done under the provisions of the Act, until the expiration of one month next after notice in writing . . . clearly and explicitly stating the cause of action . . , and every such action shall be brought or commenced within six months next after the acousal of the cause of action," 21 & 22 Vict. c Ixiii. (the Wallasey Improvement Act 1858), 3. 4: " This Act shall be executed by the Local Board according to the powers and provisions of the Public Health Act 1848, and of the several Acts sup- Plements thereto, or other vise relating to the public health, and from time to time in force within the limits of this Act." 27 & 23 Vict. c. cxvii. s. 2 : " This Act shall be execurted by the Local Board, subject to the powers and provisions of the Public Health Act 1828." 30 & 31 Vict. c. cxxxii. (the Wallasey Improvement Act 1867), c. 5: This Act shall be executed by the local Board, with the powers and indemnities, and according to the provisions of the Public Health Acts." And to the first count that the defendants did what was complained of by virtue of their powers under the Wallasey Improvement Act 1864, and the Acts incorporated therewith. The cause came on to be tried before Kelly, C.B., at the Liverpool Summer Assizes 1871, when a verdict was found for the plaintiffs by consent for 1000I. (the full amount claimed), subject to be reduced or vaceted, and instead thereof a verdict for the defendant' or a nonsuit, to bo entered according to the decision of the court upon the following case (stated by an arbitrator (Mr. Hig-gin, Q.C.); the court to be at liberty to draw inferences of fact. Case. 1. The plaintiffs are the owners of steam-tug boats plying for hire within the part of Liverpool, and were on the 15th Jane 1870, the owners of a certain steam tug boat called the Lioness. 2. The defendants were possessed of a certain pier. bridge, and landing-stage at New Brighton, which said bridge at one end thereof was and is attached to the said pier, find at the other end thereof was and is attached so the said landing stage, which said landing stage and bridge rose and fell, and still rise and fall with the tide. The said pier was and is constructed of piles screwed down into the soil of the river, Mersev between high and now water mark, and the whole of the said pier was and is above low water mark of ordinary spring tides. The said bridge did not and does not rest upon or touch the soil or waters of the said river Mersey, and the greater part thereof in length. was and is above low water mark of ordinary pring tides; the remaining part thereof was and still is suspended to the said landing stage below low water mark of ordinary soring tides, and the whole of the said landing stage which was end still is moored by anchors fixed into the bad of the river, floated and still floats upon the waters of the said river below low water man of ordinary spring tides, and certain anchors which moored the said landing stage were and are still fixed into the bed of the said river outside the line of the said river, and below low water mark of ordinary spring tides. The river at the locus in que runs north and south, and the landing stage, which is 201ft. long and 30ft. 6in. wide, was and still is moored in the said river lying north and south. 3. 5 & 6 Vict. c. 110, 2i & 22 Vict. c. 63, 27 & 28 Vict. c.17l, 30 & 31 Vict. c. 132, and all other Acts relating to the port of Liverpool and to the...
To continue reading
Request your trial
-
The Johannesburg
...and Rathgar Improvement Commissioners 67 L. T. Rep. 658 (1892) A. C. 498 Joliffe v. Wallacey Local BoardDID=ASPM 29 L. T. Rep. 582 2 Asp. Mar. Law Cas. 146 L. Rep. 9 C. P. 62 Public Authorities Protection Act 1893 (56 & 57 Vict. c. 61), s. 1, sub-s. (b) Railway Clause Consolidation Act 1845......
-
The Harkaway
...Bateson, J. and Elder Brethren The Harkaway Clarke v. Scattergood Marsden's Adm. Cas. 243 Jolliffe v. Wallasey Local BoardDID=ASPM 2 Asp. Mar. Law Cas. 146: 29 L. T. Rep. 582 L. Rep. 9 C. P. 62 Harmond v. PearsonENR 1 Camp. 515, 516 Baxter v. International Contracting CompanyUNK 65 Fed. Rep......