Great Western Railway Co. v. Phillips & Co., Ltd [1908] UKHL 974
(Before the Lord Chancellor (Loreburn) , Lords Macnaghten , Robertson , Atkinson , and Collins .)45 SLR 974Great Western Railway Company v. Phillips & Company, Limited.Subject_ Railway — Regulation — Demurrage of Trucks — Disputes as to Demurrage to be Settled by Arbitration — Hire of Trucks in Place of those Delayed — Arbitration or Action. Facts:A Railway Act, after providing that when merchandise is conveyed in trucks not belonging to the company the trader shall be entitled to recover from the company a reasonable sum by way of demurrage for any detention of his trucks beyond a reasonable time, enacted that “any difference arising under this section shall be determined by an arbitrator to be appointed by the Board of Trade at the instance of either party.”A claim by a trader for damages sustained by him in hiring a truck in the place of one delayed by the railway company held to be in respect of a “difference arising under this section,” and to be accordingly a question for an arbitrator and not for a court of law.Appeal from a judgment of the Court of Appeal ( Vaughan Williams and Buckley, L.JJ., Moulton, L.J. , dissenting), reported (1907) 2 KB 664 , affirming a judgment of the King's Bench Division ( Lord Alverstone, C. J., Darling and Channell , JJ.), reported (1906) 2 KB 426 , making absolute a rule nisi for a mandamus to the County Court Judge of the Marylebone County Court to hear and determine the matter of the action.The facts of the case and the section of the statute under consideration sufficiently appear in their Lordships' judgments, infra.Lord Chancellor (Loreburn) —In this case there was a difference of opinion in the Court of Appeal. The Great Western Railway Act 1891 by its sixth section makes provision for the case of detention by the company of trucks belonging to traders as follows:—“Where merchandise is conveyed in trucks not belonging to the company the trader shall be entitled to recover from the company a reasonable sum by way of demurrage for any detention of his trucks beyond a reasonable period either by the company or any other company over whose railway the trucks have been conveyed under a through rate or contract. Any difference arising under this section shall be determined by an arbitrator to be appointed by the Board of Trade at the instance of either party”; and the question before your Lordships is whether a difference that has arisen between the company and Messrs Phillips & Company, Limited, comes within that section. If so, admittedly the jurisdiction of the County Court is ousted. If, on the other hand, the difference is not within the section, then this action, commenced in the County Court, may proceed. The action was brought in the Marylebone County Court to recover the sum of 8s. 8d. “for damages occasioned to plaintiffs (Messrs Phillips & Company, Limited) by undue detention of their waggon and cost of hire of other waggon in place thereof.” In fact, Messrs Phillips had sent on the company's line a truck of their own which was delayed for a few days on its way to Wales, and say that they had to pay 8s. 8d. for the hire of another truck to take its place. This sum the Railway Company refused to pay, and offered 6d. a day instead, which represented the earning power of the truck per day less depreciation. Thus the question really narrows itself to this—Does the Act mean that an arbitrator shallPage: 975 ↓
Lord Macnaghten —I am entirely of the same opinion. And I cannot help saying that I am rather surprised to find that so much difficulty has been made over the enactment which your Lordships are called upon to construe. It was not disputed that before the railway legislation of 1891 it was the practice of railway companies to convey their customers' empty coal trucks free of charge on the homeward journey, and on the outward journey too when forwarded for the purpose of being loaded. And, moreover, it was not disputed that, so long as these services were performed gratuitously, such a thing as an action at law for undue detention of empty coal trucks was never heard of. Then came the legislation of 1891. The enactment with which the appellants are concerned is the Great Western Railway Company (Rates and Charges) Order Confirmation Act 1891 (54 and 55 Vict. c. ccxxii). By sec. 5 of that Act, where merchandise is conveyed in trucks belonging to the company, the company is authorised to charge “a reasonable sum by way of addition to the tonnage rate” for certain services, including the detention of trucks for the accommodation of customers. On the other hand, by sec. 6, in the case of merchandise conveyed in trucks not belonging to the company, traders are given the right of recovering “a reasonable sum by way of demurrage” for undue detention of their trucks. Any difference arising under either of these two provisions is to be determined by an arbitrator to be appointed byPage: 976 ↓
Lords Robertson , Atkinson , and Collins concurred.Appeal sustained.Counsel for the Appellants— Cripps, K.C.— Lush, K.C.— Schiller. Agent— R. R. Nelson, Solicitor.Counsel for the Respondents— S. T. Evans, K.C.— Bailhache. Agents— Burn & Beveridge, Solicitors.