Yeudall v Sweeney. Yeudall v Lynn
| Jurisdiction | Scotland |
| Judgment Date | 13 March 1922 |
| Docket Number | No. 7. |
| Date | 13 March 1922 |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Salvesen, Ld. Ormidale.
Statutory Offences—Ship—Carrying passengers without a certificate—Steamer which ‘carries’ more than twelve ‘passengers’—Merchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), secs. 267 and 271 (1).
The Merchant Shipping Act, 1894, by sec. 267 defines ‘passenger,’ and by sec. 271 (1) enacts that ‘Every passenger steamer which carries more than twelve passengers’ shall not ply with any passengers on board without a certificate from the Board of Trade.
Held that the word ‘carries’ does not mean ‘is fitted to carry’ but ‘in fact carries’; and, accordingly, that a complaint which merely set forth that a passenger steamer, for which no certificate had been obtained, had, on a specified occasion, carried more than twelve passengers (the number being stated) was relevant.
Question whether a person carried gratuitously is a ‘passenger’ within the meaning of the Act.
Statutory Offences—Ship—Carrying passengers without a certificate—‘Passenger steamer’—Vessel sailing from and returning to same place in United Kingdom—Merchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), sec. 267—Merchant Shipping Act, 1906 (6 Edw. VII. cap. 48), sec. 21.
A steamer carrying passengers, which sails from and returns to the same place in the United Kingdom, is a ‘passenger steamer’‘carrying passengers to, from, or between any places in the United Kingdom,’ within the meaning of sec. 267 of the Merchant Shipping Act, 1894; and, if she carries more than twelve passengers without having obtained the necessary certificate, her master or owner is liable to a fine for every passenger so carried, as being a passenger ‘carried from or to any place in the United Kingdom,’ within the meaning of sec. 21 of the Merchant Shipping Act, 1906.
John Sweeney, boat-hirer, Alexandria, was charged in the Sheriff Court at Dumbarton on a complaint at the instance of Hugh Laughlan Yeudall, Procurator-fiscal, which set forth ‘that being on 4th August 1921 the owner and master of a passenger steamer, viz., a motor boat, you did on said date, from Balloch, in said parish and county, ply or proceed with said motor boat on two excursions on the River Leven and on Loch Lomond, in said county, with more than twelve passengers on board on each excursion, viz., on the first excursion with twenty-one persons on board, and on the second excursion with nineteen persons on board, without having a certificate from the Board of Trade as to survey, in terms of the Act first after mentioned, contrary to the Merchant Shipping Act, 1894, sections 271 (1) and 743; whereby you are liable in terms of section 21 of the Merchant Shipping Act, 1906, to a fine not exceeding £10 for every passenger carried on each of said excursions, and in default of payment to imprisonment in terms of the Summary Jurisdiction (Scotland) Act, 1908, section 48.’
The Sheriff-substitute (Menzies) having found the accused not guilty, the Procurator-fiscal craved and obtained a stated case on appeal to the High Court of Justiciary.*
The case set forth:—
‘No objections having been taken to the relevancy of the complaint, evidence was led before me on 19th October 1921, and on 31st October 1921 I gave judgment.
‘The following facts were either admitted or proved, viz.:—1. That the respondent is the owner and master of a motor boat. 2. That the said motor boat is a ship to which the provisions of the Merchant Shipping Acts applying to passenger steamers apply, and was used, inter alia, for carrying passengers. 3. That respondent had no Board of Trade certificate for his said motor boat as a passenger steamer. 4. That on 4th August 1921, at the request of a neighbouring boat-hirer at Balloch, named Roxburgh, the respondent took a picnic party, consisting of more than twelve passengers on each of two successive trips in his said boat from the respondent's jetty to Roxburgh's jetty on Loch Lomond, giving them a short sail round a bay at Balloch pier en route. These trips were occasioned by the fact that the said picnic party had to reach Roxburgh's jetty on Loch Lomond across the River Leven from the respondent's jetty in order to embark on Roxburgh's boats for an excursion on Loch Lomond. On the first trip twenty-one persons were carried in the respondent's said boat and on the second trip nineteen persons. On arriving at Roxburgh's jetty with the second load of passengers an arrangement was made with Roxburgh by the respondent whereby respondent took most, if not all, of the second boat load of passengers a further trip on Loch Lomond in company with two boats belonging to Roxburgh in which were other members of said picnic party. 5. The persons on board respondent's boat were referred by him to Roxburgh for any settlement for their conveyance in the respondent's said boat, and Roxburgh was paid by or on behalf of the said persons £3 for the services performed by the respondent and by Roxburgh, but the respondent was not paid any money by the persons carried or by Roxburgh. 6. That the consideration given to the respondent by Roxburgh was the performance on a former occasion or the expectation of the performance on a future occasion or both by Roxburgh of a similar gratuitous favour for the respondent. I held that the persons on board respondent's boat were passengers in the sense of section 271 of the Merchant Shipping Act, 1894, but as the complaint was in my opinion radically defective in respect that it disclosed no offence, and further, as section 21 of the Act of 1906 under which the penalty was craved did not seem to me to apply to this case, I found respondent not guilty.
‘The grounds of my decision were these:—First. The respondent was charged with a contravention of the Merchant Shipping Act, 1894, in respect that he proceeded upon an excursion with more than twelve passengers on board, without having a certificate, as required...
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