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 1818. HOLLINSHEAD The LEEDS and 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- 1818. HOLLINSHEAD The LEEDS and 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, COVENANT upon a policy of assurance, on the don sittings after Trinity term, 1817, when the jury 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. |