May 12, 1921. 1ST DIV. pursuer in the cause, the Lord Advocate, as counsel case. And whereas the presiding judge proceeded to excepted to the direction above mentioned as in- said refusal. on Counsel were heard on the bill of exceptions 12th May 1921, when counsel for the defenders cited the cases of Watt v. Glasgow Corporation (1919 SC. 300), and M'Sherry v. suggested, namely, that the case was left for the jury's decision too broadly and without sufficiently specific directions. Lords Mackenzie, Skerrington, and Cullen concurred. Lord Ashmore.-I also agree. I would like to explain that at the conclusion of the pursuer's evidence there was no motion made to withdraw the case from the jury. I pointed that out at the time, having in view the case of M'Caffery (1910 S.C. 797). With regard to the rulings which I was asked to give, my opinion at the time, since confirmed, was that to have given these two rulings would have been to withdraw from the jury what it was really their function to dispose of. In short, the questions for determination were questions of fact. I fully explained to the jury the circumstances, and in particular the bearing of the law of contributory negligence, and that is stated in the bill of exceptions. Counsel for Pursuer, Graham Robertson, R. M. Mitchell; Agents, Paterson & Salmon, S.S.C.Counsel for Defenders, The Lord Advocate (Morison, K.C.), Gentles; Agents, Simpson & Marwick, W.S., for Sir Thomas Lindsay, Glasgow. HOUSE OF LORDS. M. D. Glasgow Corporation (1917 S.C. 156). Counsel (The Lord Chancellor (Lord Birkenhead), Viscount for the pursuer were not called upon. On 12th May 1921 the Court refused the bill of exceptions. Finlay, Lords Dunedin, Atkinson, and Shaw.) 2nd May 1921. The Lord President (Clyde) [after dealing with 3. The Glebe Sugar Refining Company the first direction which was asked]-With Limited v. Greenock Harbour Trustees. I. Harbour-Harbour trustees-ultra vires-Graving dock-Lease-Duration-Greenock Port and Harbour Consolidation Act 1913 (3 & 4 Geo. V. cap. xlii.), sections 6, 109, 111 (2), 193, Schedule NHarbours, Docks, and Piers Clauses Act 1847 (10 Vict. cap. 27), section 23-Lease by the trustees of a graving dock, part of the undertaking, to ship repairers for a term of ten (or in certain events, twenty) years -Held (reversing judgment of First Division) that the lease was, in respect of its duration, ultra vires, and that it fell to be reduced. II. Administration of Justice-Duty of counsel-Duty of agents-Informing the Court of relevant authorities-Observations, per the Lord Chancellor, on the duty of counsel and of those instructing them to bring to the notice of the Court all authorities, whether favourable to their contentions or not, which have a bearing on the questions at issue. Accordingly, I do not think this bill of (Reported ante, 1920, 2 S.L.T. 13.) The pursuers appealed to the House of After hearing counsel on 6th and 8th December of personal responsibility in this matter, but I HOUSE 1920, their Lordships took time for considera- very much hope that the observations I have OF LORDS. tion, and on 23rd February 1921 put the cause thought it necessary to make will prevent a The Glebe out for further hearing on the effect of section 23 recurrence of that with which I have dealt. It Sugar Refining Co. of the Harbours, Docks, and Piers Clauses Act is possible that the views their Lordships have Ltd. v. 1847. At the conclusion of the second hearing formed upon this point will be reflected in the Harbour the Lord Chancellor made the following form of the Order which their Lordships think Trs. it proper to make. observations: The Lord Chancellor.-Their Lordships will give reasons in writing for the opinion which they have formed. But, as a point of very considerable general importance has arisen, I think it right to make this observation at once. It is not of course in cases of complication possible for their Lordships to be aware of all the authorities, statutory or otherwise, which may be relevant to the issues which in the particular case require decision. Their Lordships are therefore very much in the hands of counsel and those who instruct counsel in these matters, and this House expects, and indeed insists, that authorities which bear one way or the other upon matters under debate shall be brought to the attention of their Lordships by those who are aware of those authorities. This observation is quite irrespective of whether or not the particular authority assists the party which is so aware of it. It is an obligation of confidence between their Lordships and all those who assist in the debates in this House in the capacity of counsel. It has been made clear that Mr Sandeman, Sir John Simon, and Mr Macmillan were unaware of the existence of the section which appears to their Lordships to be highly relevant to, and in the event decisive upon, the matters under discussion here. Indeed the circumstances in which leading counsel are very often briefed at the last moment render such an absence of knowledge extremely intelligible. But I myself find it very difficult to believe that some of those instructing learned counsel were not well aware of the existence, and the possible importance and relevance, of the section in question. It was the duty of such persons, if they were so aware, to have directed the attention of leading counsel to the section and to its possible relevance, in order that they in turn might have brought it to the attention of their Lordships. A similar matter arose in this House some years ago, and it was pointed out by the then presiding judge that the withholding from their Lordships of any authority which might throw light upon the matters under debate was really to obtain a decision from their Lordships in the absence of the material and information which a properly informed decision requires; it was in effect to convert this House into a debating assembly upon legal matters, and to obtain a decision founded upon imperfect knowledge. The extreme impropriety of such a course cannot be made too plain. The learned counsel who have addressed their Lordships are acquitted the cause to the Court of Session with instrucOn 2nd May 1921 their Lordships remitted tions to pronounce decree of reduction in terms of the second conclusion of the summons, to find it unnecessary to dispose of the first declaratory conclusion, and to find no expenses due to either party; and ordered that each party bear their own costs of the appeal. The Lord Chancellor [read by Viscount Finlay]. This is an appeal from an interlocutor, dated 31st March 1920, of the First Division of the Court of Session adhering to an interlocutor, dated 27th July 1919, of the Lord Ordinary (Lord Hunter). The action out of which the appeal arises was instituted by the appellants, two limited liability companies, the first incorporated under the Companies (Consolidation) Act 1908, and having their registered office at No. 6 Grey Place, Greenock; and the second incorporated under the Joint Stock Companies Acts 1862 to 1890, and having their registered office at Western Square, Greenock, against the Trustees of the Port and Harbours of Greenock, incorporated by the Greenock Port and Harbours (Consolidation) Act 1913, and James Lithgow and Henry Lithgow, two shipbuilders, of Port Glasgow, to have it found and declared (a) that the defenders the trustees had no power or right to grant an exclusive use to the defenders second called, or to any other person the exclusive use, of that portion of the undertaking of the first defenders known as the Garvel Graving Dock, and (b) that a certain very complicated lease executed by the above-mentioned trustees to the said James Lithgow and Henry Lithgow (1) of the Garvel Graving Dock with the jetty and dolphins used in connection therewith and the whole appurtenances thereof, and (2) of certain areas of ground adjoining the said dock therein described, for a term of ten years from 15th August 1918 at the yearly rent of £4500, should be reduced as having been made ultra vires. The defenders, James Lithgow and Henry Lithgow, did not enter any defence. The said lease contained a provision (No. 9) that in case the lessees should, with the sanction of the lessors, widen the entrance to the graving dock in a manner approved of by the latter, the lessees should have the option of extending the lease for a further period of ten years, making twenty years in all, paying the same yearly rent of £4500. The appellants are admitted to be Greenock May 2, 1921. Harbour May 2, 1921. Neither before the Lord Ordinary nor on the appeal to the First Division, nor yet in the course of the argument before your Lordships, was any allusion direct or indirect made to it. It was only after the arguments in this House had been concluded, and your Lordships had taken the case into consideration, that my noble and learned friend Lord Atkinson called attention to section 23 and its important provisions as expressly bearing upon the issue whether the lease which is challenged would stand. The attention of parties was called to the topic, and a second hearing confined thereto was given by this House on 23rd February. In the first argument both parties, having left section 23 out of consideration, took their respective stands upon section 109 of the Act of 1913, which runs as follows: "The trustees may from time to time and at any time appropriate and grant the exclusive use of any of their quays, berths, wharves, warehouses, sheds, quay spaces, timber yards and timber ponds and any other of their works and conveniences to any corporation, company or person as the trustees may think fit." The respondents contended (1) that the words "other works and conveniences," occurring in this section, cover the Garvel Graving Dock; and (2) that the words "appropriate and grant the exclusive right to use" authorise the execution of the complicated lease impeached. On behalf of the appellants it was contended (1) that these latter words did not authorise the making of this lease, and (2) that the words "other works and conveniences" should be construed as only designating works and conveniences ejusdem generis of those actually named. In the course of these contentions the more general and important question was discussed to which I shall allude at the con HOUSE payers of rates on goods, and as such have and OF LORDS. exercise the right of voting in the election of The Glebe certain of the Harbour Trustees who fall to be Sugar Re- elected by and from shipowners and ratepayers fining Co. Ltd. v. registered as electors under the Act of 1913. Greenock The business of the appellants is alleged to be Trs. served by, and dependent upon the service of, vessels using the Port and Harbours of Greenock which may from time to time require the use of the Garvel Graving Dock. This last-named dock was made by the trustees in the year 1871 under the powers conferred upon them by the Greenock Port and Harbour Act 1866, referred to as the Act of 1866 (see section 8). It was paid for by them out of the trust funds in their hands. In the record no mention is made of the fact that, by section 6 of the Act of 1913, the Harbours, Docks, and Piers Clauses Act 1847, with the exception of certain sections, is incorporated therewith. In the supplementary statement printed in the case to your Lordships' House one finds the following statement: By section 6 of that Act (ie. the Act of 1913) there was incorporated therein the Harbours and Docks and Piers Act 1847, with the exception of certain sections which are not relevant or material to this case. If that only means that the excepted sections which are not incorporated are not relevant or material to the case it is, of course, right. These excepted sections are sections 16 to 19 inclusive, sections 25 and 26, and sections 70 to 80 inclusive, but if the statement means that all of the sections of the Act of 1847 which are incorporated are not relevant or material, the statement is utterly inaccurate and misleading, for section 23 of the Act of 1847, which is incorporated, provides that: "The undertakers may lease or grant the use or occupation of any warehouse, building, wharf, yards, crane, machine or other conclusion of my speech. veniences provided by them for the purposes of this Act or the special Act at such rents and upon such terms and conditions as shall be agreed upon between the undertakers and the person taking the same: provided that no such lease be granted for a longer term than three years." By section 6 of the Act of 1913, it is provided that the word "undertakers" used in the Act of 1847 shall mean the trustees under the Act of 1913, and the words "special Act" shall mean the Act of 1913. It will be observed that this section 23 deals with the leasing not only of things and conveniences which may be provided for the purposes of the Act of 1847, but also with the leasing of those conveniences which may be provided for the purposes of the special Act, i.e. the Act of 1913. In that sense the section is prospective in its operation. Neither the appellants nor the respondents, however, took their stand on this section. On the contrary, they have studiously ignored its existence. In the pleadings in the case it was not definitely referred to, much less relied upon. Upon the issues thus raised their Lordships, for the reasons hereafter appearing, do not propose to express any opinion. They feel they must dispose of the appeal on an altogether different ground, namely, the proper construction, in the events which have happened, of section 23 of the Act of 1847. This section is one of a group of five sections dealing with the construction of warehouses and other conveniences. The first of these, namely, section 20, provides that the undertakers may acquire by contract of purchase any lands adjoining or near to the undertaking in addition to the lands acquired by them compulsorily under the powers of the special Act for extraordinary purposes which are described thus: "(1) For providing additional yards, wharves, and places for receiving, depositing, and loading or unloading goods, and for the erection of weighing machines, tollhouses, offices, warehouses or sheds, and other buildings and conveniences, and (2) for making convenient roads to the harbour, dock, or pier, or any other purpose which may be requisite or convenient for the formation and use thereof." That, I think, must mean requisites or conveniences for the formation or use of the harbours, docks, or piers. The word "thereof" cannot be confined, I think, to the roads to be made. Section 21 empowers the undertakers to construct on the lands which they have acquired by either or both of the methods mentioned, such warehouses, storehouses, sheds, and other buildings and works as they may deem necessary for the accommodation of goods shipped or unshipped within the harbour, dock, or pier, and may erect or provide such cranes, weighing and other machines, conveniences, weights and measures as they may think necessary for loading, unloading, measuring, and weighing such goods. By section 22 the undertakers or their lessees are required to provide proper servants and labourers for working such cranes at all reasonable times for the public use thereof. Then comes section 23. It would appear to be clear that the Legislature meant to provide by this section for the leasing of any of the several works and conveniences mentioned in the two preceding sections. It would, I think, be quite irrational to hold that a lease of a warehouse for five years was invalid because warehouses were specifically mentioned in section 23, but that a lease of a tollhouse, for instance, for five years was valid because tollhouses were not specifically mentioned in it. Looking, therefore, at the special provisions of those three sections by themselves, it is obvious that the words "other conveniences" occurring in section 23 must receive a wide construction, and are not to be confined to works or things ejusdem generis with those specifically mentioned in that section. So much for the Act of 1847. The Act 29 & 30 Vict. cap. clvi. (Local and Personal), entitled the Greenock Port and Harbour Act 1866, which authorises the construction of the graving dock, begins with a lengthy recital containing the following passage amongst others: "Whereas the number and size of vessels resorting to the harbour were of late years greatly increased and were still increasing, and the trade and commerce of the port became more extensive and it would be a public advantage that a new harbour and graving dock and other works should be constructed and land acquired for the accommodation of the said shipping and commerce." It is reasonably clear that the promoters and framers of this statute considered that this graving dock would be a great convenience for the shipping and trade of the harbour, and in the very nature of things it is a convenience for the ships frequenting a harbour that they should find there a graving dock where needed repairs could be executed. The question for decision is, however, whether it was a convenience provided by the under takers, the respondents, for the purposes of the special Act, that is the Act of 1913, within the HOUSE meaning of section 23 of the Act of 1847. OF LORDS. May 2, 1921. The statute of 1913 begins with a recital The Glebe that by the aforesaid Act of 1866 divers Sugar Refining Co. Acts relating to the Port and Harbours of Ltd. v. Greenock were repealed, and, with the excep- Greenock tions therein mentioned, consolidated with Trs. amendments. The Trustees of the Port and Harbours of Greenock were incorporated, and the undertaking as therein set forth of the then. existing trustees was transferred to the trustees then incorporated. It is then recited that by a number of Acts named further powers were given to these trustees; that since the year 1888 the constitution of the existing trustees has remained unaltered; that it is expedient that the constitution of the existing trustees should be amended and altered; that the trustees should be re-incorporated as is by the Act of 1913 provided, and that the undertaking of the existing trustees should be transferred to and vested in the trustees so re-incorporated, thereinafter called "the trustees." By section 9 of this Act of 1913 the first of these objects was effected, and the trustees were incorporated under the name by which they are sued in this action. By section 46 it is enacted that on and after the appointed day, namely 18th November 1913 (section 8), the port and harbours and the whole rights of the existing trustees should be and the same were thereby vested in and transferred to the trustees, i.e. the respondents. This was obviously done for the purposes of this Act of 1913. The definition of "port and harbours" is as wide as it well could be. It includes, amongst many other things, docks, locks, works, yards, jetties, wharves, piers, quays, warehouses, sheds, shipways, harbour rails, and premises whatsoever for the time being belonging to the existing trustees. Part V. of the Act is headed "Works." It includes section 52 and the sixteen following sections. The first of these empowers the trustees to make and maintain the works thereinafter described, or some of them or some part or parts thereof, and the works and conveniences connected therewith, that is to say, the widening on both sides and deepening of the entrance of the graving dock and the lowering of the site of the said graving dock. The following section enables the trustees to make and maintain additional works, including shipways, shipping place, locks, basins, caissons, sluices, etc., and other works, machinery and conveniences, if any. By section 110 it is euacted that the limits of the port and harbour shall extend to and include the whole works, land, and property vested in and belonging to the existing trustees, and the trustees under the Harbour Act and this Act. The graving dock being thus vested in the respondents the statute proceeds to provide how it shall be used. By section 128 the trustees may levy and take from any vessel entering or using the graving dock Harbour May 2, HOUSE the rates and dues mentioned in Schedule G OF LORDS. annexed to the Act, just as they may under the The Glebe succeeding section levy rates and dues for the Sugar Re- use of their cranes, or under section 131 for fining Co. Ltd. v. the use of their shed. All these obvious conGreenock veniences are treated alike. By section 193 it Trs. is provided that as to this graving dock the regulations set forth in Schedule N annexed to 1921. the Act are to be enforced in the same manner as if they were bye-laws made under the Act of 1847. These regulations contain precise and elaborate provisions touching the entry of vessels into the graving dock, the mode and manner in which they shall use the dock when admitted, and the nature and extent of the control exercised over them by the harbour-master after they have been admitted. Having regard to these several statutory provisions, I think, owing to the events which have happened, this graving dock must now be taken as having been, at the date of the impeached lease, provided as a convenience for the purposes of the Act of 1913 within the meaning of section 23 of the Act of 1847, although it was originally constructed under the Act of 1866. The impeached lease is, therefore, owing to the length of its term, ten years, void, and the interlocutors appealed from will be recalled and decree will fall to be pronounced in terms of the reductive conclusion of the summons. With regard to the first, that is to say, the declaratory conclusion, it has been a point for consideration whether absolvitor should not be pronounced therefrom, in view of the circumstances of the argument already mentioned. In reference to this, it should be stated that, had the provisions of section 109 of the Act been properly before the House for construction, it would, of course, have been necessary to examine also the further question, namely, how far the provisions of this lease are reconcilable with the statutes and the regulations made under them, dealing with the use and government of this graving dock, and whether the apparent monopoly of enjoyment thereof is consistent with the public trust under which the property is held. In the circumstances already stated in which the House confines its pronouncement to the effect of section 23 of the Act, and the reductive conclusion of the summons, it becomes unnecessary to deal with the declaratory conclusion. The appeal succeeds, not, however, upon the grounds put forward by the appellants, but upon grounds never put forward by the appellants (though they should have been); never alluded to by either of the parties in any Court. It may be that this omission has brought about the entire litigation, certainly I should think it has brought about this appeal. I therefore think that both parties should bear their own costs here and below. who use the Port of Greenock. The respondents On the 1st February 1919 the appellants began an action in the Court of Session against the trustees of the port and Messrs. Lithgow, in which the pursuers asked (first) for a declaration "That the Trustees of the Port and Harbours of Greenock had no power or right to appropriate or grant to the defenders second called, or any other manufacturer, trader, shipbuilder or other person, member of the public, the exclusive right to use or to control and regulate the use of that portion of the undertaking of the Trustees of the Port and Harbours of Greenock known as the Garvel Graving Dock," and (second) for reduction of the lease. The material pleas in law for the pursuers were: "1. In respect that upon a sound construction of the Greenock Port and Harbours Consolidation Act 1913 the defenders, the Trustees of the Port and Harbours Viscount Finlay.-The appellants are traders of Greenock, are vested with and are bound to |