National Dock Labour Board v British Steel Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE BUCKLEY |
| Judgment Date | 29 July 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0729-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. 105/70 |
| Date | 29 July 1971 |
[1971] EWCA Civ J0729-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice, Divisional Court, Consisting of the Lord Chief Justice of England Mr. Justice Cooke and Mr Justice Bridge.
Lord Justice Salmon
Lord Justice Sachs (not present)
and
Lord Justice Buckley
MR R. A. Maccrindle. Q. C., and MR A. Leggatt (instructed by Messrs Lovell, White & King) appeared on behalf of the Appellants, British Steel Corporation.
MR P. Webster, Q. C. and MR A. Diamond (instructed by Messrs Hill, Dickinson & Co.) appeared on behalf of the Respondents, The National Dock Labour Board.
Before 1970 the port or harbor of Port Telbot consisted of a complex of docks reached through the entrance lock lying a short distance up river and east of the mouth of the Avon. At least 90% of the cargo handled at Port Talbot was iron are discharged at Margam Wharf and destined for the Margam Steel Works and the Abbey Steel Works, both adjacent to the Port and both now owned by the British Steel Corporation. The total annual amount of iron are discharged at the port was about 3,250,000 tons and is increasing. The Docks Board and their predecessors in title were the freeholders of the land comprising the port, some of which, including Margam Wharf, was leased to the British Steel Corporation and their predecessors in title. The port was incapable of accommodating vessels of more than 10,000 tons and at neap tide even vessels of that size were unable to reach Margam Wharf. Modern bulk are carriers which began to come into vogue in the early 1960's are very large vessels of up to 100,000 tons. Accordingly the Docks Board obtained powers under a Private Act of Parliament, the British Transport Docks Act, 1964, to develop and extend the port of Port Talbot so that it might accommodate these large modern are carrying vessels. This development and extension was completed early in 1970 and is now in use. It consists of a large jetty lying in a dredged tidal harbor bounded by breakwaters to the east of the mouth of the river Avon and close to the entrance of the original port or harbor. It has, not unnaturally, been conceded that the new tidal harbor together with its jetty is part of the port or harbor of Port Talbot. Indeed, sections 3 and 28(2) of the Act of 1964- expressly so provide. Port Talbot harbor is defined by section 3 as meaning "the harbor of Port Talbot transferred to and vested in the Board by the Transport Act, 1962". Section 28 (2) reads "except as otherwise provided in this Act, the tidal harbor shall for all purposes form part of Port Talbot harbor".
The first and perhaps the most important question raised by this appeal is whether or not the Dockworkers' Employment Scheme, 1967, relates to the tidal harbor and jetty. If it does not, then the British Steel Corporation need not employ any registered dock workers for any of the work done there. This 1967 Scheme made under powers conferred by the Dock Workers (Regulation of Employment) Act, 1946, amends and, as amended, replaces a similar Scheme made in 1947 by virtue of the same Act.The Act provided by section 1(6) that "a scheme may relate to any port or to any part of any port" and by section 2(5) that "any Scheme may be varied by a subsequent scheme". For-present purposes there is no material difference between the 1947 and 1967 schemes, Appendix I of the Scheme sets out the ports to which the Scheme relates. These ports are grouped according to their respective localities. Under "South Wales Ports" Port Talbot is included, I will now read the relevant words with which the Appendix concludes: "In this Appendix port means the area of that port as laid down by or under any Act of Parliament, order in council, provisional order or any instrument made under an enactment made with reference to that Act except where otherwise defined for the purposes of any dock labour scheme referred to in clause 1(3) of the Scheme, in which case it shall have the meaning set out in that dock labour scheme".
Clause 1(3), insofar as it is material to the present question, reads as follows: "The Scheme shall relate to the ports set out in Appendix I hereto and at each such port it shall apply to the same class or description of dock work and dockworkers as immediately before coming into operation of the said Scheme in 1947 were included in any dock labour scheme or port registration scheme then in operation in respect of that port that is to say (b) at each of the other ports (this includes Port Talbot) the approved dock labour scheme for that port under the Essential Work (Dock Labour) Orders 1943 to 1945".
There was a Dock Labour Scheme for the South Wales Ports made under the Essential Work (Dock Labour) Order 194-1 and continued in force by the Essential Work (Dock Labour) Order 1943 as though made there under. The local Scheme of 1941 is therefore the Scheme to which one is directed to turn by the concluding words of the Appendix to the Scheme of 1967 in order to see whether the port or harbour of Port Talbot is "otherwise defined" than in sections 3 and 28(2) of the British Transport Docks Act, 1964- so that it does not include the new tidal harbour and jetty. The opening words of the local Scheme read "The Ports and Areas covered by this Scheme are set out in the Appendix". That Appendix lays down that "For the purpose of the South Wales Ports Dock Labour Scheme, the expression "port" shall include the following places:
(1) Cardiff and Penarth. The whole of the Dock Estates.
(2) Newport.- The Alexandra Docks (North and South), New River Wharf (Great Western Railway co.) Jacks Pill, Victoria, Pontypool and Ebbw Vale Wharves (Richard Thomas & Co. Ltd.), Moderator Carves (Robert Gilchrist- & Co. Ltd) and Great Western Wharf (Basic Slag and Phosphate Co.'s Ltd).
(3) Barry. The Nos. 1 and 2 Books (including Timber Ponds) Basil! (No.3 Dock) and all warehouses, quays, open storage places and timber yards in the Dock Area.
(4) Port Talbot. All the Dock Estate.
(5) Swansea", and then various Docks and Wharves are named which I am not going to read.
(6)Llanelly. All the Dock Estate".
Since the Scheme could apply to the whole or part only of a port it was important that the Scheme should attempt to make plain what it was to which it was intended to apply. If to a part, then the part must be defined. If to the whole, then the Scheme must attempt to define which parts of the town or city to which it referred were to be regarded as the port. Many parts of a large city are clearly not parts of the Port. For example, Cardiff Arms Park is obviously not part of the Port of Cardiff and Penarth. The scheme therefore attempts to define 'Port' so as to exclude those areas of the city which clearly form no part of it. "All the Dock Estate" is clearly intended to cover the whole area of the port or harbour at Port Talbot, but to exclude any other parts of the town. The definition is loose and imprecise. Perhaps necessarily so. I do not consider that any assistance can be derived from the dictionary definition of "Dock", Nor do I think that the word "Estate" has any juristic significance. It is not confined to land in which the Docks Board has a freehold or even leasehold interest. It is rather a question of the land and water over which the Docks Board exercise control. I think the words "all the Dock Estate" refer to everything which can in fact be properly regarded as forming part of the port or harbour of Port Talbot. The fact that the British Steel Corporation has a lease of the new jetty and much of the land on the landward side of the jetty over which the are passes on its way out of the harbour to the steel works does not, by itself, make this land and the jetty any less part of the port or harbour to which the Scheme relates than does the fact that bargain Wharf is let to British Steel Corporation exclude it from being part of the port or harbour. The vital question is: do the words "All the Dock Estate" mean the area of the whole portor harbour of Port Talbot only as it existed in 1941, or the whole area of the port or harbour of Port Talbot as it may from time to time develop and expand or contract? The Tribunal to whom this matter was referred under section 51 of the Docks and Harbours Act, 1966, gave the words the narrower and more restrictive meaning. The Divisional Court gave them the wider and, in my view, the more realistic meaning. I recognize that the battle to decide what was "dock work", who should be registered as "dockworkers", whether anyone other than registered dockworkers could be employed on dock work had been fought out in the ports, finally decided and the result generally accepted long before 1947. The National Schemes of 1947 and 1967 accepted this factor and clearly did not intend to change any of its aspects (see clause 1(5)) 1 do not agree that it by any means follows that those Schemes were intended to apply only within what happened to be the exact geographical limits of the ports prior to 1947. It is one thing to say we accept that "dock work" and "dockworker" at a particular port shall mean what they have long meant there. There were, no doubt, sound industrial reasons why the 1947 and 1967 Schemes should treat these matters as what, in the course of argument, has been-described as "frozen". It is quite another thing to say that the physical boundaries of the ports and wharves shall be deemed to be treated by the Schemes as frozen. So to treat them would make no industrial sense. I therefore favour construing the words "All the Dock Estate" in the Appendix to the local 1941 Scheme as meaning the whole area of the port or harbour of Port Talbot as it may from time to time develop...
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