Petroineos Manufacturing Scotland Limited Against Clydeport Operations Limited And Others
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2017] CSOH 49 |
| Court | Court of Session |
| Docket Number | P1424/15 |
| Published date | 23 March 2017 |
| Date | 23 March 2017 |
| Year | 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 49
P1424/15
OPINION OF LORD BURNS
In the cause
PETROINEOS MANUFACTURING SCOTLAND LIMITED, a company incorporated under the Companies Acts and having its registered office at Bo’ness Road, Grangemouth, Stirlingshire
Petitioners
against
(FIRST) CLYDEPORT OPERATIONS LIMITED, a company incorporated under the law of Scotland and having its registered office at 16 Robertson Street, Glasgow, G2 8DS
Respondents
DS-RENDITE-FONDS Nr 108 VLCC Ashna GmbH and Co Tankschiff KG, having a place of business at Stockholmer Allee 53, 44269 Dortmund, Germany
First Interested Party
QUEEN'S HARBOUR MASTER FOR THE CLYDE DOCKYARD PORT OF GARELOCH AND LOCH LONG
Second Interested Party
Petitioner: O’Neill QC, MacGregor; Brodies LLP
Respondent: Howie QC, Hawkes; Weightmans (Scotland) LLP
First Interested Party: MacColl; Mackinnons
Second Interested Party: Johnston QC, Komorowski; Office of the Advocate General
23 March 2017
Background
[1] The petitioners are the time charterers of the “Mt Ashna” (the vessel). On 24 November 2014 the vessel proceeded up the Firth of Clyde thereby incurring charges levied by the respondents as the statutory Port Authority, for both her inward and outward passages. The respondents also levied conservancy charges in respect of those passages. These have been paid by the petitioners.
[2] The vessel proceeded to moor at Finnart Oil Terminal (the terminal) in Loch Long which is operated by the petitioners. While she remained there she was used as a floating storage unit. She has now left. The petitioners operate the terminal through which oil is pumped to Grangemouth. The respondents have issued invoices in respect of conservancy charges in respect of the vessel for the period she remained at the terminal. Those invoices were served first upon the vessel’s agents and subsequently upon the owners of the vessel who appear as the first interested party. The petitioners accept responsibility for any such charges which are legitimately levied and have consigned a sum of approximately £2.8 million with the court in order that arrestments upon the vessel, placed on 7 December 2015, could be lifted.
[3] In this petition the petitioners seek, first, declarator that no further conservancy charges are payable by the vessel beyond those already levied by and paid to the respondents in respect of her arrival and departure. Second, the petitioners seek production and reduction of the purported schedule of arrestment served by the respondents in respect of the presence of the vessel at the terminal and for recall of that arrestment. Further, the petitioners seek interdict against the respondents from selling or offering for sale the vessel further to that arrestment and for interim interdict.
[4] The respondents are the Port Authority for the Firth of Clyde and are the statutory successors of the Clyde Port Authority (CPA) which was established by the Clyde Port Authority Order Confirmation Act 1965 (the 1965 Order) as amended by the Clyde Port Authority Confirmation Act 1969 (the 1969 Act).
[5] The 1965 Order confirmed a Provisional Order made under the Private Legislation Procedure (Scotland) Act 1936. It incorporated the provisions of the Harbours, Docks and Piers Clauses Act 1847 (the 1847 Act), apart from the sections specified in section 4(1) of the Order:
“so far as they are applicable for the purposes of, and are not inconsistent with or varied by this Order”.
[6] Section 14 of the 1965 Order, as amended by the 1969 Act, defines the jurisdiction of the Port Authority as extending to the River and Firth of Clyde between the landward limits (west of the Albert Bridge in the City of Glasgow) and the seaward limits, running due east and west across the Firth of Clyde from the coast of Ayrshire to Corrygill point on the east coast of Arran and across the Kilbrannan Sound on the same latitude. By section 14(2) the Port Authority exercise jurisdiction between the landward and seaward limits and “within all sea lochs and channels within the River and Firth of Clyde between the landward and seaward limits”.
[7] Certain sections of the 1847 Act which are incorporated into the 1965 Order and of the 1965 Order itself (referred to in the 1847 Act as the special Act) require notice.
[8] Section 99 of the 1847 Act provides as follows:
“Nothing in this or the special Act or any Act incorporated therewith contained shall extend to, alienate, defeat, vary, lessen, abrogate or prejudice any estate, right, title, interest, prerogative, royalty, jurisdiction, or authority, of or appertaining to the Queen’s most excellent Majesty, nor to abridge, vary, or abrogate any of the powers or authorities by law vested in the Admiralty, in the Commissioners of Her Majesty’s Customs and Excise or in the Crown Estate Commissioners, in relation to the possessions and land revenues of her Majesty in right of her crown or otherwise howsoever”.
[9] Section 100 of that Act provides as follows:
“Nothing in this or the special Act shall be deemed to extend to of affect any Act of Parliament relating to her Majesty’s duties of Customs or Excise, or any other revenue of the crown, or to extend to or affect any claim of her Majesty in right of her crown, or otherwise howsoever, or any proceedings at law or in equity by or on behalf of her Majesty, in any part of the United Kingdom of Great Britain and Ireland”.
[10] Section 118 of the 1965 Order provides as follows:
“Nothing in this Order shall affect prejudicially any estate, right, power, privilege, or exemption of the Crown and, in particular, nothing herein contained shall authorise the Port Authority to take, use, in any manner interfere with any portion of the shore or bed of the sea or of any river, channel creek, bay or estuary or any land, heritages, subjects or rights of whatsoever description belonging to Her Majesty in right of her crown and under the management of the Crown Estate Commissioners without the consent in writing of such commissioners on behalf of Her Majesty first had and obtained for that purpose”
The Clyde Dockyard Port of Gareloch and Loch Long
[11] The Dockyard Ports Regulation Act 1865 (the 1865 Act) provides for the creation of dockyard ports and the appointment of a Queen’s Harbour Master in respect of such a port. A dockyard port is any port, harbour, bay or navigable river on or near to which Her Majesty has any dock or dockyard. By the Clyde Dockyard Port of Gareloch and Loch Long Order 1967 (the 1967 Order), a dockyard port was created at Gareloch and Loch Long. In respect of Loch Long, the dockyard port extended north of latitude 56 degrees 00 minutes north. It is within that area that the Finnart Oil Terminal is located. The 1967 Order was revoked and replaced by the Clyde Dockyard Port of Gareloch and Loch Long Order 2011 (the 2011 Order).
[12] By section 5 of the 1865 Act, regulations can be made by Order in Council to regulate and control traffic within the dockyard port. It further provides that regulations can be made “for such other purposes as from time to time see necessary with a view to the proper protection of Her Majesty’s vessels, dockyards or property or to the requirements of Her Majesty’s Naval Service”. Section 7 provides for Orders in Council to make rules as to safe navigation within the dockyard port and the approaches thereto.
[13] The 2011 Order revoked the 1967 Order and made regulations under section 5 of the 1965 Act. Those regulations are set out in Schedule 5. For example, regulation 1 requires the master of every vessel and every other person within the limits of the dockyard port to comply with any direction given by the Queen’s Harbour Master for the purposes of “the proper protection of the dockyard port, Her Majesty’s vessels, dockyards or property or for the requirements of Her Majesty’s naval service”. Rules made for the purposes of section 7 of the 1865 Act are contained in Schedule 6 and regulate inter alia the navigation of large vessels within the dockyard port.
[14] Section 23 of the 1865 Act provides:
“Nothing in this Act shall prejudice, take away, abridge or alter any right of property, privilege or jurisdiction or any powers of conservancy held, possessed, enjoyed or exercised by any body or person in, to, upon or over any part of a dockyard port or of the shores and banks thereof”.
[15] The question raised by this petition is essentially whether the respondents have any statutory jurisdiction to levy conservancy charges in respect of the vessel over the period during which she lay at the terminal within the confines of the dockyard port. The petitioners maintain that they do not, since acts of conservancy are rights of the Crown which are reserved to the Queen’s Harbour Master by the legislation creating the CPA and the dockyard port.
[16] Two preliminary points were advanced by the respondents.
1. Title to Sue
[17] The first is that the petitioners have no title to sue. Mr Howie, on behalf of the respondents, submitted that the matter raised in the petition is one of private law in which the petitioners are seeking reduction of invoices issued by the respondents which they claim they ought not to have to pay. The petitioners contend that there is an infraction of property rights of the Crown and thus require to demonstrate both title and interest to sue in such circumstances (see D and J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 at pages 12 and 13). The petitioners, as the time charterers of the vessel, have no relationship with the respondents. The 1965 Order provides that charges payable to the respondent “shall be payable by the owner of any vessel”. The petitioners therefore have no right to challenge the invoices lawfully issued to the owners in respect of conservancy charges by judicial review.
[18] Even if a public law issue is involved in this case, the petitioners cannot demonstrate a sufficient interest because they...
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