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IS BARRYWTTHTNCARDIFF PORT!…

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IS BARRYWTTHTNCARDIFF PORT! — IMPORTANT TEST ACTION. JUDGE OWEN DECLARES BARRY A C R { SEPARATE PORT. 5 THE JUDGMENT. At Cardiff County-court on Thursday his Honour Judge Owen gave his decision in an adjourned case of considerable interest and im- portance to the shipping community in this district. The action, it will be remembered, arose in con- sequence of a claim made by Messrs. Baker aud Butt, of Bristol. asrainst the owners or the vessel Minattsol, of Rouen. The plaintiffs sued to recover the sum of £ 29 as extra expense for the vessel going to Barry instead of to Cardiff, through the conRia-nee of the cargo, and against this was a counter-claim by the owners of the Minattsol for e40 for demurrage. The ground of action really rested on the disputed point whether Barry was included in the port of Cardiff or was a separate port. Mr. Bailhache (instructed by Messrs. Ingledew and Sons) appeared for Messrs. Baker and Butt, and Mr. Brynmor Jones, Q.C., M.P. (instructed by Messrs..Downing and Handcook) for the owners of the vessel. For the shipowners it was contended that Barry was within the port of Cardiff for commercial purposes, and for the consignees of the cargo it was maintained that it was a separate port, chiefly because it had been absolute failure to establish Tisane, or that t.h?re had been sufficient use for a sufficient length of time. His Honour, in giving judgment, stated that in this action the plaintiffs were the owners and holders of a bill of ladineron a cargo of gvpsum, and the defendants were the owners of the ship Minatssol. The bill of lading was for the carriage of the cargo of the Minatssol from Rouen and for its delivery at the port of Cardiff. In the margin of the bill of lading was the note "to be dis- charged as soon as possible and without inter- ruption in any dock at captain's option." The -cargo was discharged at Barry Dock, and this, the plaintiffs alleged, was not within the port of Cardiff. Therefore, action was brought to recover Y-,29, the amount of extra expenses to which the plaintiffs alleged they had been put by reason of THE DISCHARGE AT E ABET INSTEAD OF AT SOME DOCK AT CARDIFF. The defendants made a counter-claim for zC40 10s. 8d as damages for breach of agreement for the hire of the vessel and in relation to the carriage of goods by her. At the trial it was agreed that the only question in the action and on the counter- claim which he (the judge) had to determine was whether Barry p,ort was, for the purposes of the contract between the parties, within the Port of Cardiff," and it was further agreed that whichever way he determined the question of amount of damages to be recovered by the successful party should be assessed by the Registrar. Plaintiffs alleged that for the purposes of the contract the question whether Barry Dock was within the limits of the Port of Cardiff was a question to be deter- mined by the common understanding upon the point of mercantile men, and that at the date of the contract there was no such common under- standing that. Barry was within the port of Cardiff. The defendants alleared-that it being shown by ancient authorities that before the present dock at Barry was built Barry was within the armpit of the ancient port of Cardiff as created by Royal prerogative. BARRY MUST BE HELD TO BE STILL WITHIN THE ANCIENT PORT unless it could be shown to have been taken out of it. and they further maintained that, if, evidence were admissible upon the point, the evidence showed that the common understanding of merchants as to,the limits of thø. port of Cardiff was that Barry was included. His Honour then sketched the history of the construction of the Barry Dock, and then referred to the decision of Lord Justice Bowen in the case of the owners of the Garston v. Hicke, in which Justice Bowen stated that the different Acts relating to the Bute Docks did not decide the question as to the limits of the port. He (Judge Owen), therefore, con- sidered that, except for Customs and pilotage purposes, there was no evidence as to any legal" port of Cardiff in the sense that a port has been created either by charter, grant, or statute by which the limits of the port are defined. Referring to the Penarth Dock, and its relative distance to the Bute Docks, his Honour stated that a vessel proceeding from Penarth Head to Barry would take a course of about eight miles in length, and he pointed out that it had not been alleged by the defendants that any port dues were payable to any authority at Cardiff by vessels using Barry Dock. He had referred to cases cited at the trial having reference to THE LIMITS OF THE PORT OF CARDIFF and to others bearing upon the point at issue. The I defendant's first point, that Barry was within limits of the ancient port of Cardiff, and must be -considered to be within the port," was supported by a return made to the commission issued from the Exchequer in 1886, which contained this passage That we do hereby declare and appoint Chepstow. Penarth, Newport, Barry Sully, -and Aberthaw to be within the said head port of Cardiff."—His Honour said Mr. Brynmor Jones, who appeared for the defendants, had cited a passage from Molloy de Jure Maritima. published in 1685, where (page 327) it was stated that Swan- sea, Barry, and other ports were within the port of Cardiff, although it was not stated in that work for that purpose they were within the port. Mr. Jones also cited passages from other old text books to-the same effect, which authorities, with others, will be found referred to in the case of Nicholson v. Williams. That had been referred to. These text books had not. he (Judge Owen) thought, the eame authority as the return of the commission issued under an Act, which was entirely a Customs Act, and was the King's issued by himself out of the Court of Exchequer, and the duty of the com- sioners was to "assign and appoint all such further places, ports, members, and creeks, as shall be lawful for landing and shipping goods," and to what antieut and head port," such places should "belong and appertain." It seemed to him (Judge Owen) that that return showed that Barry was at the time within the port of Cardiff, and was so for Customs or fiscal purposes only. It was to be noted that the return stated that Barry was within the 44 head port of Cardiff," and Barry and the other places named were subsidiary ports at which goods might be landed, though the Customs' dues were to be paid at Cardiff. "Barry" mentioned in this return was the old "harbour there, none of which was WITHIN THE LIMITS OF THE NEW BARRY DOCK. This old harbour the present company was bound 'by statute to maintain. The defendants also put in evidence the London Gazette of January 4th, 1849. containing a notice dated the 20th of Decem- ber, 1848, signed by three of the Lords of the Treasury, whereby the limits of the port of -Cardiff were declared to "commence at the River Rumney aforesaid. and continue along the coast of the county of Glamorgan to a place called Nash Point in the said county," and it was further de- clared that the limits seaward of the said port of Cardiff shall extend to a distance from a low water mark of thret miles in the sea, including all islands, bays, harbours, rivers, and creeks within the said limits," The limits so fixed were the present limits of the port of Cardiff for Customs purposes. This order was made under an Act for amending the laws relating to Customs. It seemed to him that the return of 1686 and the order of 1848 were made'for Customs or fiscal purposes only, and, if that were so, they did not affect the question in this action. After reference to the distinction drawn by Lord Halsbnry and others between the word port" used in the fiscal sense and the word "port "used in the commercial sense, his Honour held that the first point raised by the defendants bad failed. The law which he had to apply in this case was contained in the judgment of Lord Herschell. now Lord Chancellor, in the case to which he had just referred, and in which was the following passage :—" I agree with the view which has been more than once expressed by learned judges, that in eonsidering such a contract as that with which we are dealing the word port' must be taken to have been used in its popular er com- mercial sense—that is to say, as applying to what would be understood as a port by shippers, ship- owners, and underwriters. Where there is a common understanding amongst such persons as to the limits of P port, the matter is free from diffi- culty." What he (Judge Owen) had to ascertain was :— (1) What was commonly understood as the "port of Cardiff" in its commercial sense by shippers, shipowners, and underwriters and (2) if he thought that there was no common under- standing amongst such persons as to the limits of the port, then what were the limits applying to the case, and the tests as to what constituted a. port as he found such tests laid down in the cases. The evidence given on each side was documentary and oral. The documentary evidence consisted of 9 documents relating to the limits of a Customs port, and with those he had already dealt. There were also documents relating to pilotage, the result of which he found to be as follows :-That under an old Act of Parliament Cardiff was within the Bristol Pilotage District, and that in 1861 au Act was passed establishing a separate pilotage board for the port of Cardiff. In that Act the port was defined to mean a Customs port for the time being, except the harbour of Penarth, so long as there should be a separate pilotage authority for that harbour. The Penarth pilotage authority had. he believed, being given up. and was merged into the Pilotage Board of Cardiff. In 1883 bye- laws framed by the Cardiff Board were approved, and in those bve-laws the limits of the port were defined to extend from the Rumney River to the Monkstons, and not to the westward of a line drawn, from the Wolves to Lavernosk. Then, by an Act of 1889, A SEPARATE PILOTAGE BOARD WAS CONSTITUTED FOR THE PORT OF BARRY," which, for pilotage purposes, was defined to be the xavigable waters comprised within an imaginary line drawn from the Breaksea point to the light- ship, thence easterly to the Flat Holm, and north- westerly to Lavernoek Point." The pilotage dis- tricts of the port of Cardiff and the port of .Barry were divided by a line drawn from Lavernock Point southward to the Flat Holm. and were co- terminous along that line. He found also that the "regulations of the Port Sanitary Authority of Cardiff. approved in 1885," stated that the ex- pression port of Cardiff meant so much of the customs of the port of Cardiff as lay between the Inner Rumney and Lavernock Point." He had had also before him six forms of charter-party, and one of a colliery guarantee used by shippers and charterers to. and at, Cardiff. He found in that documentary evidence no common under- standing as to the limits of the port. The oral evidence consisted of nineteen witnesses called by defendants, and twelve called by the plaintiffs. Defendants' witnesses were undoubtedly persons well-entitled by their position as com- mercial men at Cardiff to speak as such as to the limits of the port, but although they all stated with more or less certainly that THE PORT OF CARDIFF, IN ITS COMMERCIAL MEANING, COMPRISED THE NEW DOCK AT BARRY, some of them, at any rate, admitted that this was not accepted by all shipowners, and that cases had arisen where vessels under a charter to go to the port of Cardiff had refused, when required to do so, to go to Ba.rry. The defendaiits'firsr, and principal witness, in his cross-examination, admitted that a great many of the shipowners and shipbrokers of Cardiff DID NOT KNOW WHETHER BARRY WAS IN CAR- DIFF OR NOT. One of the reasons given by some of the defen- dants' witnesses for the opinion which they held was that all the business relating to vessels at Barry was done at Cardiff, and having regard to the fact that Barry Dock was opened only in 1889, and that the principal shipments there was as yet coal, that the offices of the colliery owners who shipped at Barry were, and had for years past been at Barry, it seemed to him (the Judge) that that reason did not amount to much. The de- fendants' witnesses were all Cardiff men ex- cept two, one of whom was from Liverpool and the other from London, and the evidence of those two witnesses as to the limits of the port was too uncertain to be of importance. The defendants produced evidence that in some trade returns or statistics, which were not official in character, Barry was treated as being in the port of Cardiff, but these ret,urns seemed to him to be for the district, and were not made for the port as such. The plaintiffs produced evidence of ship- owners and brokers, including some from Bristol, Gloucester, and Newport, who stated that in their opinion, and also in the opinion of commercial men, Barry was not, for commercial purposes, con- sidered to be within the port of Cardiff. It seemed to him upon that part of the case the burden was upon the defendants to show that for the purposes of the contract Barry was within the port of Car- diff, and that they had not discharged themselves of that burden. He found, as a fact, that there was NO COMMON UNDERSTANDING UPON THE POINT, and this was the rule as laid down by the Lord Chancellor and as laid down by Lord Esther. In 1892, the date of the bill of lading, Barry Dock had been opened for three years only, and that time seemed to him not to be long enough to establish a common understanding amongst commcrcial men upon the point as to what in that case were the limits of the port. Applying the tests mentioned by Lord Esher in his judgment in the case Garston v. Hickie," and by the Lord Chancellor in the passage from his judgment which he had read. Mr. Bryn mor Jones cited the passage from Lord Hole departialis maris as to what con- stituted the port which passava was stated at length in the judgment of Lord Halsbury. Lord Esher said But if you can see with your eyes that there is a protected water within a certain place you may be always assured there will be the port which is spoken of by business men under a certain name-the place where there is protected water by reason of the natural lie of the land and water." These words were used as to the port of Cardiff. Applying this construction to the present case, the facts were Penarth Head formed a protection to waters to the north and east of it, and within the head there was a tiatural haven. Barry Dock was seven or eight miles by sea from that headland, and to get to Barry from there a vessel had to go out to the open sea. of the Bristol Channel for a distance of seven or eight miles, and it was, he thought, A STARTLING PROPOSITION, and under such circumstances Barry Dock should be within what Lord Esher called the natural port" of Cardiff. But, besides that, the decided cases in which the limits of the port had been defined. at different times seemed to him to de- cide the question. In one case it was held that a vessel wrecked in the Cardiff Drain was at the time within the port. In another it was held that the port of Cardiff covered at least the water to the north of Penarth Head up to the Bute Docks and East and West Cardiff Flats and Penarth Flats, though the court in that case declined to decide whether the Penarth Roads were within the port. But in another case it was held that a vessel which had been towed out into the Bristol Channel three miles from Lavernock and finally sailed from her last port, which in that case was Cardiff. This case-" Price v. Livingstone "teeemed to him to be an authority that Barry Dock was not within the port of Cardiff, as its distance from Lavernock Point was somewhat greater than the distance to the place which in that case was held to be outside the port. He (Judge Owen) held that, replying to the question the tests which he had mentioned, BARRY DOCK WAS NOT WITHIN THE NATURAL PORT OF CARDIFF. His judgment both in the action and counter- claim would be for plaintiffs, the amount of damages to be ascertained by the registrar unless the parties agreed as to the amount. The plaintiffs were entitled to their costs, and, having regard to the public importance of the question raised, he would give a certificate, under Section 119 of the Act, that the eoets should be' taxed upon Scale C. Mr. Downing pointed out that he did not under- stand the counter-claim was settled by the decision, and was of opinion that Defendants might succeed upon it, even though the plaintiffs got judgment on the claim. on the claim. His Honour replied that he understood from what Mr. Brynmor Jones had said at the previous court that if plaintiffs succeeded on the claim, they must also succeed on the counter- claim. Ultimately, on the suggestion of Mr. Bailhache, it was agreed that judgment should be given for the plaintiffs in the action, and a reference be made to the registrar as to how much was due in the action, and what, if anything, was due on the counter-claim.

A COGAN FATHER ILL-TREATS…

ALLEGED THEFT OF MONEY AT…

[No title]

THE PORT SANITARY QUESTION.

[No title]

CORRESPONDENCE. t.

-:......s.._._---_._----EXPORTS…

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