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locks in their pleasure-boats, on paying a toll as for a tonnage of 15 tons. The tolls were imposed by the act specifically on the different sorts of goods carried at so much per ton, and different goods paid different rates of tonnage.

Hollinshead for the plaintiffs. The canal by the statutes empowering the company to make it, is dedicated to the use of the public, who have a full right at their pleasure, to navigate thereon, subject only to the payment of such tolls, as the company by the act of parliament are empowered to take. It differs in no respect from a bridge built by subscription or a turnpike road, where similar rights are enjoyed by the public. If then the acts impose no tolls, the public may go' freely. That is the case here; there is no clause in any of the acts applicable to this navigation, which imposes any toll on the boat; all the tolls are imposed on the different cargoes, which are subject to different rates of payment. Then, if the rate be on the cargo only, an empty boat can be subject to no rate at all. The clause relied on by the other side, must be con-strued as applicable only to burthened boats; for on such only were there any tolls imposed by the previous parts of the act. It is said there is no exception of empty boats; but that was not necessary in a case where they were not included in the original liability. Besides, at what rate of tonnage are they to be charged? for boats laden with different goods, pay different rates; and it seems an insuperable difficulty to ascertain, if empty boats are chargeable at all, at what rate to charge them. There is no reason why they should be liable to one rate rather than the other. This therefore affords a strong argument that they are not chargeable

F 3

1818.

HOLLINSHEAD
against
The LEEDS and
LIVERPOOL
Canal Comp.

1818.

HOLLINSHEAD
against

The LEEDS and
LIVERPOOL
Canal Comp.

able at all. The true rule of construction in cases of this sort, is laid down by Lord Ellenborough in Gildart v. Gladstone in error (a), that where the words fairly admit of doubt, a construction in favour of the public, and adverse to the company, shall prevail,

Tindal, contrà, after adverting to the fact, that a greater loss of water was occasioned by the passage of an empty than of a laden boat, and that the toll was intended as a compensation to the company for this loss, contended that a canal was not like a turnpike road open to all persons to pass freely, but appropriated to persons using it for purposes of trade, and that this most distinctly appeared, from the introduction of a special clause, enabling pleasure-boats belonging to particular individuals to pass on certain terms.

He was then stopped by the Court,

BAYLEY J. It seems to me impossible not to include empty boats within the express words of the clause in question, and they are most clearly within its meaning and policy. This navigation was, by the original act 10 G. 3., made free for all persons whatsoever, for the purpose of conveying different goods thereon; and it is free only for those purposes. Then sect. 55. of that act provides, "that no boat of less burthen than twenty tons shall pass through any lock without the consent of the company or unless the owner shall pay tonnage equal to a boat of twenty tons." Now the grounds for this payment are, the trouble which the company have in opening the gates, and the loss of water they thereby sustain; and these reasons will

(a) 11 E. 685.

apply

1818.

HOLLINSHEAD

against The LEEDS and LIVERPOOL.

apply even more stongly to empty than to laden vessels, because the former occasion a greater loss of water than the latter. But it is said that the public have a right freely to pass along the canal, for all purposes whatsoever; if that were so, what reason can be assigned Canal Comp. why pleasure-boats should be expressly permitted to pass subject to a particular payment on going through a lock? And besides, even that permission is given, not to the public at large, but only to the owners of the adjacent lands. The public, therefore, have no general right of passage, but only for the purpose of carrying goods along the canal. Then the 25th section of the 23 G. 3., which is the clause on which this question

under twenty tons burthen,

turns, goes further than the clause I have before men-
tioned of the 10 G. 3., and, as it seems to me, clearly
comprehends this case. The former clause only ap-
plied to boats which were
without at all considering how they were laden; but
it being obvious that vessels capable of carrying more
than twenty tons did the same injury to the navigation,
when they passed with less than that burthen, as vessels
that could not carry twenty tons, this latter provision
was introduced, that no boat whatsoever should be at
liberty to pass without paying a tonnage on twenty tons,
both in the case where the boat was not capable of car-
rying twenty tons, and where, though capable of carrying
that burthen, she had not a loading to that extent on
board. And I think that the boat in the present case
comes under this latter description. But this difficulty is
suggested, that it is not possible to specify the description
of tonnage to be paid; because, different articles being
liable to different rates, you cannot tell at what rate aboat
which has no articles on board, ought to be charged. But

[blocks in formation]

1818.

HOLLINSHEAD
against

The LEEDS and
LIVERPOOL

the answer to that is this, that then the boat will be entitled to pass on paying a tonnage of twenty tons at the lowest rate. In this case the charge would be 10d. per mile on passing any of the locks: and considering the Canal Comp. importance of this canal to the public, and the great expenditure of water occasioned by the passage of these boats, I think that that cannot be considered as an oppressive charge. Under these circumstances it seems to me that empty boats are liable to pay every time they pass the lock the tonnage of twenty tons according to the lowest rate of duty, and that decision, according to the agreement between the parties in this case, entitles the defendants to our judgment.

ABBOTT J. The proposition that the public have a right freely to navigate this canal with their boats for all purposes, on payment of the tolls imposed, is laid down a little too generally; for the act only gives the liberty to navigate for the purpose of carrying goods, &c. thereon; and in 10 G. 3. s. 55. that is more clearly expressed, for it is stated that all persons are to have free leave to navigate their vessels and use them for the purpose of carrying coals, &c. upon the canal," which shews that for all purposes this free leave to navigate is not given. Upon the other parts of this case, I fully agree with the opinion expressed by my Brother Bayley.

HOLROYD J. concurred.

Judgment for the Defendants.

1818.

BUSK against The ROYAL EXCHANGE Assurance Friday,
Company. (a)

COVENANT upon a policy of assurance, on the
ship Carolina, at and from Amsterdam to St. Pe-
tersburgh. The policy was in the usual form, and
stated, amongst other risks which the defendants took
upon themselves, "fire, barratry of the master and
mariners, and all other perils, losses, and misfortunes
that should come to the hurt, detriment or damage of
the said ship." The declaration averred the interest to
be in the plaintiff, and alleged, that during the voyage
insured, the ship was consumed by fire. The defend-
ants pleaded, that they had not broken their covenant.
The cause
was tried before Abbott J. at the Lon-

don sittings after Trinity term, 1817, when the jury
found a verdict for the defendants. In the ensuing
term a rule was obtained, to shew cause why the verdict
should not be set aside, and a new trial granted, and
cause being shewn at the sittings before Hilary term
following, the Court ordered the facts to be stated in
the following case.

The policy was duly executed by the defendants, and the plaintiff was interested in the manner alleged. The Carolina was a Russian ship, and navigated by a Russian crew. She sailed from Amsterdam on the voyage insured on the 3d October, 1815, being then properly manned and equipped. In the course of the voyage she met with tempestuous weather, and on the

(a) This case was argued at Serjeants' Inn.

a

Nov. 6th,

In an action on policy on amongst other

ship, by which,

risks, the un

derwriters insured against fire, and bar

ratry of the

master and maliable for a loss riners, they are by fire occasioned by the negligence of

easter and mariners.

Held also, that where the assured had once provided a sufficient crew,

the negligent absence of all

the crew at the

time of the loss

was no breach

of the implied

the ship should. be properly

warranty, that

manned.

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