Scottish Court of Session Decisions

This was an action raised at the instance of Messrs William Denny & Brothers, shipbuilders, Dumbarton, with consent of Alexander Allan, shipowner, Glasgow, managing owner of the s. s. “Buenos Ayrean,” against the Board of Trade, and Walter Hannah, one of the surveyors in Glasgow appointed by the Board of Trade, under the 305th and following sections of the Merchant Shipping Act 1854, to survey passenger steamships. The object of the action was to have it declared that the defender Walter Hannah “was not and is not entitled to withhold from the pursuers the shipwright surveyor's declaration applicable to the said steamer ‘Buenos Ayrean,’ provided in the 309th section of the statute, upon the ground that the soil and scupper pipe outlets attached to the ship's sides of the said steamer are connected to the sides of the said vessel by iron castings; and … that the defenders the Board of Trade were not and are not entitled to impose, whether by way of instruction to their said surveyor or otherwise, the said or any similar condition as preliminary to the granting of the said declaration; and … that the pursuers' said vessel complies with the whole requirements of the said 309th section of said statute; and that the pursuers were and are entitled to a surveyor's declaration applicable to said vessel, in terms of said section; and the defenders, and in particular the defender the said Walter Hannah, ought and should be decerned and ordained … to grant such declaration accordingly.”

The pursuers Messrs Denny averred that they lately completed the building of an iron steamship called the “Buenos Ayrean,” on the order of the pursuer Alexander Allan. The vessel was intended to be a cargo and passenger ship for the Messrs Allan's American trade. In terms of the

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Merchant Shipping Act 1854, which in its 305th and following sections makes provision for the survey of passenger ships by surveyors appointed by the Board of Trade, the “Buenos Ayrean” was at various times, and in particular on or about 29th September 1879, surveyed by the defender Hannah (who was the shipwright surveyor appointed by the Board of Trade to survey the “Buenos Ayrean”) in terms of the Act, and its whole requirements were found to be duly complied with. By the 309th section of the statute it is provided that “the owner of every passenger steamer shall cause the same to be surveyed, at the times hereinafter directed, by one of the said shipwright surveyors and by one of the said engineer surveyors so appointed as aforesaid; such shipwright surveyor being, in the case of iron steamers, a person who is in the judgment of the Board of Trade properly qualified to survey such ships; and such surveyors shall thereupon, if satisfied that they can with propriety do so, give to such owner declarations as follows:—The declaration of the shipwright surveyors shall contain statements of the following particulars (that is to say)—(1) That the hull of the ship is sufficient for the service intended, and in good condition and other particulars which it is unnecessary here to set forth in detail. If left to act upon his own judgment, Hannah would in due course have issued the above-mentioned statutory declaration, which is a condition of the granting by the Board of Trade of the certificate provided by the 312th and following sections of the statute. This certificate must be obtained by the owners (under heavy penalties) before a passenger vessel proceeds to sea. Proceeding, however, upon certain views as to their powers, for which the pursuers averred there was no warrant in the statute, the Board of Trade had lately issued instructions to their surveyors by which, inter alia, they are prohibited from issuing the statutory declaration wherever the soil and scupper pipe outlets attached to the sides of passenger ships are made of cast-iron or lead instead of other material. In respect of these instructions the defender Hannah felt himself debarred from granting the said declaration, except upon the footing of the pursuers altering the fittings of the vessel. The Board of Trade being applied to, adhered to the determination of refusing (through their surveyor) the said declaration. In consequence the “Buenos Ayrean” had to be sent to sea without a statutory certificate, and therefore without being in a position to carry passengers. The pursuers further averred—“The objection taken by the defenders to the cast-iron outlets in question is entirely fanciful, and has no warrant under the statute, from which alone the defenders' powers are derived. In particular, it has no relation to the sufficiency or good condition of the hull of the said vessel.”

The Board Of Trade denied that the objection taken to the cast-iron outlets was fanciful or unwarranted by the statute. They averred, on the contrary, that it was serious and well-founded, the defect complained of being one which in their judgment rendered the hull insufficient for the service for which the ship was intended, and that cast-iron attachments, in the opinion of the consulting staff of the Board of Trade, ran much more risk of fracture and other injuries than what are called metal attachments, and were a source of danger that ought to be avoided in a passenger ship. They further averred—“Section 14 of the Merchant Shipping Act 1876 provides for appeal against such a refusal to a Court of Survey; and section 15 provides that on such appeal being taken, the question raised, if one of difficulty, may be remitted to and determined by scientific referees. The defenders are willing and anxious that the question that has arisen should be dealt with under one or other of those sections. Under the general rules made by the Lord Chancellor in terms of section 9 (and of which a copy is produced herewith), there is a Court of Survey for Glasgow, of which the Sheriffs and Sheriff-Substitutes of Lanarkshire, Renfrewshire, and Dumbarton are the judges; and that is the Court to which an appeal in reference to a vessel lying at Dumbarton is competent. But no appeal has been made to it either by Messrs Denny & Brothers or by the consenter and concurrent Mr Allan.”

For the pursuers it was pleaded—“(1) Upon a sound construction of the statute libelled, the requirement made by the defenders as a condition of granting the said declaration is ultra vires and illegal. (2) The pursuers' steamship being constructed in full compliance with the statutory conditions and regulations, the defender Mr Hannah is bound to grant the statutory declaration, and the other defenders are not entitled to prevent or interfere with his doing so.”

For the defender Hannah it was pleaded—“The defender, as a surveyor under the Board of Trade, is bound to act upon the Board's instructions in determining what is essential to the sufficiency of a ship's hull in the sense of the statute; and is bound to refuse a declaration when, in view of those instructions, he is not satisfied that he can with propriety grant it.”

For the Board of Trade it was pleaded—“(2) The Merchant Shipping Act 1876 having authorised appeal to a Court of Survey when a shipowner feels aggrieved by the refusal of a surveyor to give a declaration, the jurisdiction of the Court of Session is excluded, unless there have been excess of power. (3). There having been no excess of power either on the part of the Board of Trade in issuing instructions to their surveyors for their guidance in determining, inter alia, what should be considered essential to the sufficiency of a ship's hull in order to entitle its owner to obtain a statutory declaration, or of Mr Hannah in following such instructions and refusing a declaration, the action ought to be dismissed, with expenses. (4) Otherwise, the hull of the ship being insufficient for the service intended, because of the defective construction of the outlets of the soil and scupper pipes, neither the pursuers nor the owners are entitled to a statutory declaration, and the defenders ought therefore to be assoilzied, with expenses.”

By section 307 of Act of 1854 it is provided “that the surveyors shall execute their duties under the Board of Trade, and such Board shall make regulations as to the manner in which the surveys hereinafter mentioned shall be made, and as to the notice to be given to the surveyors when surveys are required, and as to the amount and payment of any travelling or other expenses incurred by such surveyors in the execution of their

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duties, and may thereby determine the persons by whom, and the conditions under which, such repayment shall be made.”

By section 13 of the Act of 1872 it is provided “that all duties in relation to the survey and measurement of ships under this Act or the Acts amended hereby shall be performed by the surveyors appointed under the fourth part of the Merchant Shipping Act 1854, in accordance with such regulations as may be from time to time made by the Board of Trade.”

The Lord Ordinary ( Curriehill) dismissed the action and decerned, adding the following note:—

“ Note.—[ After narrating the circumstances as above, and reciting the clauses of the Merchant Shipping Act quoted above]—In pursuance of the powers conferred upon them by these Acts, the Board of Trade have since 1854 been in use from time to time to issue regulations containing, inter alia, instructions to ‘shipwright surveyors’ as to the survey of the hull, equipments, &c., of passenger steamships. The latest edition of these regulations was published in 1878, and it was not until then that the Board of Trade required the outlets of water-closet, soil, and scupper pipes, and the like, to be of metal other than cast-iron or lead.

Such being the powers and duties of the Board of Trade under the Merchant Shipping Acts, the question raised by the pursuers as to the powers of this Court to review, alter, and annul the regulations is one of great importance, which, however, I do not think it necessary to determine. I shall only say, that assuming such power to be vested in the Court, it would require a very strong case of unreasonable and oppressive exercise of their power on the part of the Board of Trade to be averred and established to warrant any interference with the regulations made by the Board for the ‘safety’ (of passenger steamers) ‘and prevention of accidents.’ The Board has under the statute the duty to discharge of inquiring into all accidents to British shipping. The accumulated experience which must result from these inquiries cannot fail to furnish the Board with the best possible data for judging as to the materials and fittings best calculated to secure the safety of shipping, and as to what materials should be prohibited as likely to conduce to danger. And I cannot doubt that the regulations complained of have been framed as the result of large experience. It appears to me that no sufficient allegations have been made by the pursuers to justify the inquiry which they now demand, even assuming the competency of the inquiry.

But even if the inquiry asked were competent and justified by relevant allegations, I think the pursuers are premature in invoking the aid of the Court. Before doing so it is clearly their duty to exhaust all the remedies provided by the Legislature for grievances caused to shipowners by the action of the Board of Trade and their ‘shipwright surveyors.’ It will be observed that the instructions as to the fittings of pipe-outlets contained in the regulations above recited are not absolute, and that a good deal is left to the discretion of the surveyor. Now, by the Merchant Shipping Act 1876, a Court of Survey for survey appeals is appointed, to consist of a judge sitting with two assessors; the appeal is to be heard in open court, and provisions are made for the judge and assessors surveying the ship by themselves, or by any competent person or persons whom the judge may appoint, and to order the ship to be released or detained… … ….

“Now, it appears to me that the present is precisely a case for which an appeal to the Court of Survey was intended, and that the pursuers, if aggrieved by the refusal of the surveyor, ought to have appealed to that Court; and if it involves, as the pursuers apparently think it does, a matter of principle, they had it in their power to be heard before the scientific referees. I am of opinion that the right of appeal thus given, if it does not absolutely exclude all appeal to the Court of Session, certainly excludes it in the first instance. It is unnecessary to say whether, in the event of either the Board of Trade or the shipowner being dissatisfied, the decision of the referees could be reviewed by this Court. On that point I can give no opinion. I am of opinion, however, that on one or other or both of the grounds above indicated the present action ought to be dismissed with expenses.”

The pursuers reclaimed, and argued—(1) The statute of 1854, in that part of it which related to ‘safety and prevention of accidents,’ exhaustively dealt with all the different requirements which must be complied with in order to enable a ship to pass the necessary survey and receive a declaration and certificate. But nowhere was authority conferred upon the Board to issue instructions to its surveyors such as these here complained of. In making their surveys under the Act the surveyors must be left free to exercise their own skill and judgment, and the Board was not entitled to fetter their surveyors’ judgments by directions and instructions relative to matters upon which the statute was silent. Section 307 only conferred upon the Board power to issue regulations to their surveyors in relation (1st) to the manner in which the surveys shall be made, (2d) the notice required to be given to surveyors when surveys are required, and (3d) the amount and payment of the expenses incurred by the surveyors. And section 13 of the Merchant Shipping and Passenger Acts Amendment Act 1872 only authorises the issue of regulations relative to the matters specified in section 307 of the former statute. (2) Assuming that the Board of Trade and their surveyors are identical, then it was ultra vires of the Board of Trade to make requirements not mentioned in the statute. The Board was here passing beyond its powers as defined by the statute, and was attempting to legislate beyond its statutory authority. (3) The remedy provided by the Merchant Shipping Act 1876 was not applicable in the present case, because the Court of Survey created by that Act could not entertain a question as to the powers of the Board of Trade, which was the question here at issue. The Court of Session was the only forum competens in such questions.

Argued for the Board of Trade—(1) By virtue of the powers conferred upon them by the statute, the Board was entitled to issue instructions to its surveyors such as these complained of. By section 305 power was conferred on the Board to appoint surveyors for the purposes of the Act, and to fix their remuneration, and to remove them from time to time, as the Board saw fit; and by section 307 the inspectors were to perform their duties under the Board's directions. Further, by section 13 of the Merchant Shipping

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and Passenger Acts Amendment Act 1872 express power to issue regulations to their inspectors was conferred upon the Board. (2) With regard to the subject-matter of the regulation here complained of, it related directly to the sufficiency of the hull of the ship, and that was one of the particulars regarding which the Act required that the inspector's declaration should contain statements. It was therefore not ultra vires of the Board to issue instructions upon this matter. (3) The surveyor having refused to grant a declaration here, the shipowner feeling aggrieved, and the refusal raising a question of construction or scientific difficulty, the remedy prescribed by the 14th section of the Merchant Shipping Act 1876 is directly applicable.

At advising—