No. 74. Edinburgh, are compellable so to construct these lines. They have no option. For these reasons I differ from the judgment pronounced by your Lordships. Feb. 21, 1873. THE following interlocutor was pronounced:-" Adhere to the Lord Ordinary's interlocutor, and refuse the reclaiming note, and, on the motion of the complainers, decern and ordain the respondents to remove the tramways laid by them in and along the portion of North Bridge Street, Edinburgh, which extends from the south end of the North Bridge to the High Street, and decern and ordain the respondents to restore the carriage-way of that portion of North Bridge Street to its former condition: Interdict, prohibit, and discharge the respondents from making or constructing any tramway along the said portion of North Bridge Street in such manner that for a distance of thirty feet or upwards a less space than nine feet and six inches shall intervene between the curbstone of the pavement on either side of the street and the nearest rail of the tramway, and decern: Find the complainers entitled to the expenses of process, allow an account," &c. MILLAR, ALLARDICE, & Robson, W.S.—LINDSAY, Paterson, & HALL, W.S.—Agents. No. 75. THE LORD ADVOCATE (for Board of Trade and Commissioners of Customs), Pursuer. Sol.-Gen. Clark-Rutherfurd. Feb. 22, 1873. Lord Advocate v. The Clyde Steam Navigation Co. 2D DIVISION. R. THE CLYDE STEAM NAVIGATION COMPANY, Defenders,- Watson— Lancaster. Ship-Measurement-Merchant Shipping. Act, 1854, sub-sections 4 and 5 of section 21.-A ship was constructed with an awning deck above the main or tonnage deck, and separated from the forecastle and poop by two gaps or cuttings extending completely across the vessel, the cuttings being closed by moveable planks or hatches not fastened down or rendered water-tight. Held (1) that the space between the awning deck and main deck was not “ a permanent closed-in space on the upper deck available for cargo or stores, or for the berthing or accommodation of passengers or crew," in terms of sub-section 4 of section 21 of the Merchant Shipping Act, 1854 (17 and 18 Vict., 104); and (2) that the vessel had not "a third deck, commonly called a spar deck," within the meaning of the provisions of sub-section 5 of section 21 of the said Act THIS was an action at the instance of the Lord Advocate, on behalf Lord Gifford. of the Board of Trade and Commissioners of Customs, against the Clyde Steam Navigation Company, to have it found and declared that the steam-ship " Bear," of Glasgow, belonging to the defenders, was of a tonnage of not less than 585-46 tons, and that the defenders were bound to deliver up a former certificate of registry, under the penalty, if they failed to do so, that the vessel should no longer be considered as a British vessel, or entitled to the privileges thereof. The "Bear," which was built on the Clyde, was contracted for by the defenders in January 1870; and when ready she was registered, after examination by the registrar of shipping at Glasgow, as of 331-97 register tonnage. After trading with the vessel for some time the defenders made certain alterations upon her, whereby her tonnage was increased; and the defenders intimated this fact to the registrar of shipping at Glasgow, with a view to the correction of the register and certificate of registry. The increase of tonnage consequent upon these alterations was not more than seventy tons; but the surveying officer, under the directions of the Board of Trade and Commissioners of Customs, increased her registered tonnage from 331.97 to 585-46 tons. This increase was imposed Lord Advocate on the ground that the vessel was three-decked, or had a "permanent No. 75. covered-in space" on the upper deck, and that the space between this upper deck or covering and the tonnage deck, which had not been in- Feb. 22, 1873. cluded in the past survey of the ship, should be included in the measure- v. The Clyde ment of the ship's tonnage, under the Merchant Shipping Act, 1854, sec- Steam Navigation 21, sub-sections 4 and 5. The defenders denied that there was a tion Co. third deck, or a permanent covered-in space, within the meaning of the provisions of the statute, and averred that the covering under dispute was a hurricane deck, covering portions of the ordinary deck, "making the ship more safe, and insuring the greater comfort of the passengers generally, especially of steerage passengers, and also so far protecting cattle and other live stock, but not forming a spar or third deck, and not increasing the carrying capacity of the vessel, and not forming a closed-in space in the sense of the statute, but having, on the contrary, a variety of permanent openings." The openings measured respectively 13 feet 6 inches, and 8 feet 6 inches wide, and extended completely across the vessel. The Lord Ordinary pronounced an interlocutor, remitting to Mr William T. Mumford, Lloyd's surveyor, Glasgow, to examine the "Bear" as to "the present state and condition of the main deck of said vessel, and of the erections, structures, and coverings thereon, as far as the same relate to or bear upon the question as to the measurement of the registered tonnage of the said steam-ship." Mr Mumford accordingly examined the vessel, and reported, inter alia, that the upper deck in dispute was an "awning deck," which the reporter did not consider a continuous deck, as it was separated by openings completely across the vessel, which were only covered by moveable planks, not fastened down or rendered water-tight. The reporter defined an awning deck" as a lightly-constructed deck over a main or weather deck, the main deck being fitted with coverings and hatches, as in the case of a deck entirely exposed to the weather. It also appeared from the report that a considerable portion of the main deck was necessary for the working of the ship; that the "awning deck" was not water-tight, so as to ensure the safety of cargo placed upon the main deck; and that if the "Bear" were loaded as a three decked ship usually is she could not with safety be sent to sea. The Lord Ordinary, on 12th November 1872, pronounced this interlocutor:-"The Lord Ordinary having heard parties' procurators, and having considered the closed record, the report by Mr Mumford, No. 12 of process, and whole process, finds that, according to the sound construction of 'The Merchant Shipping Act, 1854,' and relative regulations, the space above the main or tonnage deck of the steam-ship 'Bear,' intervening between the aft end of the forecastle and the front of the poop, ought not to be measured or included as part of the register tonnage of the said steam-ship, reserving to measure any separate deck-house constructed on the main deck between said points; and to this extent and effect assoilzies from the declaratory conclusions of the action, and decerns: And, with the above finding, appoints the cause to be enrolled, that parties may agree upon, or that a remit may be made to ascertain, the measurement in conformity with the above finding: Finds the defenders entitled to the expenses hitherto incurred by them, and remits the account thereof, when lodged, to the Auditor of Court to tax the same, and to report." * "NOTE.—The Lord Ordinary had occasion to consider the question raised in the present process in a similar action which he decided in the beginning of the present year. No. 75. Feb. 22, 1873. The pursuer reclaimed. At advising, LORD JUSTICE-CLERK.-The question involved in this case is of some novelty. Lord Advocate The action is one at the instance of the Lord Advocate, as representing the v. The Clyde Steam Navigation Co. "The question related to the steam-ship 'Danzig,' of Leith, and the Lord Ordinary's judgment is dated 30th January 1872. This judgment was acquiesced in by both parties, and the 'Danzig' was measured in conformity therewith.1 "The Lord Ordinary still adheres to the views expressed in the note to his judgment in the case of the 'Danzig;' and as the question in the present action turns upon the same clauses in the Merchant Shipping Act, and involves the same considerations, the Lord Ordinary ventures respectfully to refer to his interlocutor and note of 30th January 1872, which he holds as repeated here. It is No. 19 of the present process. "But although the questions and principles raised in the present case relative to the steam-ship Bear' are of the same nature as those formerly raised relative to the steam-ship 'Danzig,' still, as the construction of the ships is somewhat different, the application of the principles and rules of the statute must be carefully considered in relation to the actual structure of the steamship Bear,' and the Lord Ordinary must acknowledge that he feels there is much greater difficulty and nicety in dealing with the Bear' than with the 'Danzig.' "Indeed it was very ingeniously and forcibly urged by the pursuers that in reference to the Bear' there was just the element which was awanting in the case of the Danzig,' viz., a complete closing in of the whole space under the awning deck, by planking both fore and aft; while in the 'Danzig' there was always an opening aft, and it was maintained that the 'Bear' was just an instance of the case put under the fifth head of the Lord Ordinary's note in the ‘Danzig' case, and no doubt it is just here that the difficulty of the case arises. "On the whole, however, the Lord Ordinary has come to be of opinion that the space under the awning deck of the Bear,' including the space forward between the forecastle and the awning deck, and the space aft between the awning deck and the poop, are not measurable for tonnage under the statute. Of course the Lord Ordinary leaves out of view any engine-rooms or deckhouses under the awning deck, which, as closed-in spaces, fall to be separately dealt with. "Two views were urged by the pursuers, both leading to the conclusion that the whole space between forecastle and poop fell to be measured and included in the tonnage of the ship. "First, it was maintained that, looking to the structure of what is called the upper or awning deck of the Bear,' with the coverings which connected that deck with the forecastle in front and with the poop behind, the whole really formed, in the sense of the statute (section 21, sub-section 5), ‘a third deck, commonly called a spar deck.' Of course, if this is the case, then the whole space under the spar deck must be measured in terms of said subsection 5. "The answer to this seems to the Lord Ordinary to be satisfactory, that the covering in question is not a 'spar deck,' but only parts of an awning deck.' This is expressly reported by Mr Mumford, whose report has not in any particular been objected to. "Now, an awning deck, as its very name implies, is quite different from a spar deck. Its purpose is not to form a third deck, constituting a hold or be tween-decks below it, but merely to form a shelter or awning for the main or weather deck, which remains complete as before. Nothing can be carried on the top of the awning-deck, which is not in any way protected by bulwarks, but 1 This case (Leith, Hull, and Hamburg Steam-Packet Company v. the LordAdvocate) is reported postea. Board of Trade, and the summons concludes to have it found and declared that No. 75. the steam-ship "Bear" of Glasgow is of a tonnage not less than 585.46 tons, and that the defenders, the owners, are bound to deliver up a former certificate of Feb. 22, 1873. registry, under the penalty that, if they fail to do so, the vessel shall no longer be considered a British vessel, or entitled to the privileges of one. It seems that this vessel, the "Bear," was built on the Clyde, and registered tion Co. in 1870 in usual form. Her tonnage was then registered as 331-97. She which is a mere cover stretched over the proper bulwarks of the ship, and thus sheltering as an awning does the main deck of the ship. The scuppers and other usual openings are all on the main deck, just as if there was no awning deck, and there is no provision for closing these so as to make the space between the main deck and the awning deck in any sense of the word one of the 'tweendecks of the ship. "It would be most unjust to deal with this awning deck, or parts of an awning deck, as if it were a third or spar deck, for this would be to compute the tonnage of the ship as if she might be loaded so as to sink her main or middle deck below the water line,-a thing utterly impossible with the Bear,' as is fully explained by Mr Mumford in the last answer of his report, and in the sketch annexed thereto. "The Lord Ordinary, therefore, in the face of Mr Mumford's report to the contrary, cannot hold the 'awning deck,' or 'partial awning deck,' of the 'Bear' to be a 'spar deck' under the statute. But "Second, the alternative view was chiefly insisted in by the pursuers, that at all events the space under the awning deck was a closed-in space' or 'permanent closed-in space' in the sense of sub-section 4 of section 21 of the statute and relative regulations. It was ingeniously contended that the plankings or gangways, by means of which the cuts or gaps fore and aft of the awning deck might be closed up in a storm were permanent closings, just as a door or hatchway is a permanent closing, though they are made to open and to shut. "This seems to the Lord Ordinary to be the only difficult point in the case. But the Lord Ordinary has come to the conclusion that these plankings, which, after all, are only occasionally used, do not constitute a permanent closed-in space within the meaning of the Act. "They are only used in storms, and to avoid or prevent to a great extent seas from being shipped on the main deck. They are not caulked, and cannot be laid so as to exclude the water. The doors at the sides also would admit large quantities of water, varying according to the pressure, and the space below could not possibly in a storm be kept dry. Now, to justify measurement, the space to be measured must not only be permanent,' or permanently closed in,' but it must be available for cargo, or stores, or for the berthing or accommoda 6 6 tion of passengers or crew.' This does not refer to deck cargo or deck stores, the space for which is never measured, but to perishable cargo, which must be kept dry; and it is plain from Mr Mumford's report that such cargo could not be stored there, nor could passengers or crew be berthed there. Still, further, the space is to a large extent necessary for the working of the vessel, and for accesses to the engine-room, coal and ash-shoots, and to some of the pumps and sounding-rods. The statute never intended such spaces to be measured as available for cargo. "In the whole circumstances, therefore, and while feeling that the case is attended with nicety, the Lord Ordinary adopts the view of the defenders. If it could have been shewn in this case, or if it shall appear in any other case, that an attempt is made merely to evade the provisions of the statute, and to get the benefit of a proper hold or 'tween-decks, without having it measured, the Court will at once defeat such an attempt. Even when the matter comes to be a nice question of degree the Court would be slow to interfere with the judgment and discretion of the Board of Trade officials; but in the present case it appears to the Lord Ordinary that they are seeking to include as tonnage measurement space which, according to the sound view of the statute, cannot be considered as such." Lord Advocate v. The Clyde Steam Naviga No. 75. thereafter was engaged in the trade between the Clyde and Ireland. Owing to some alterations in the cabin accommodation of the ship it became necessary for Feb. 22, 1873. her again to be registered; and on this occasion the surveying officers, by Lord Advocate directions, it is said, of the Board of Trade, increased her registered tonnage to v. The Clyde Steam Navigathe amount specified in the summons, that is, from 331-97 to 585-46. It seems tion Co. not to be disputed that the greater part of this addition arises from the surveyor having included a space between the forecastle and the poop as being subject to measurement which had not been so included in the former survey. The owners have resisted this addition, and hence the present action has been brought. The question involved depends on the meaning of two sub-sections of one of the clauses of the Merchant Shipping Act, 17 and 18 Vict. c. 104. There had been previous statutory provisions on the subject, but this statute introduces, from section 20 to section 29, very detailed rules for ascertaining the tonnage of vessels prior to their entering the register. I need not go over the process in detail, but the object is by ascertaining the cubic contents, and thereafter reducing them by a given formula, to ascertain, not the absolute, but the relative carrying capacity of the vessel for many important purposes. These general rules suffer modifications, first, in the case of a vessel "having a break or poop, or other permanent closed-in space, on the upper deck, available for cargo or stores, or for the berthing or accommodation of passengers or crew," which case is provided for in sub-section 4 of section 21; and secondly, if the ship has "a third deck, commonly called a spar deck," which is provided for in sub-section 5 of the same section. There are other modifications of the general rule in regard to engine space and otherwise, which need not be referred to. The question which we have to consider is, whether this vessel has a third deck, commonly called a spar deck, in the sense of sub-section 5, or whether the space in question is a break or poop, or other permanent closed-in space, on the upper deck, in the sense of sub-section 4. The Lord Ordinary has not allowed a proof of the averments of parties, but remitted to Mr Mumford, Lloyd's surveyor, to report on the vessel. The defenders, the shipowners, were anxious to have a proof, but this was resisted on the part of the pursuer, and the case now comes to us as a concluded cause on Mr Mumford's report. I am not disposed to disturb the Lord Ordinary's course in that matter, although the report, which is very able and distinct, leaves some facts not altogether cleared up. The state of the vessel is so clearly described in the report, and in the very lucid note of the Lord Ordinary, that I shall content myself with very shortly expressing my opinion on the two questions which are thus raised for judgment. I am of opinion, in the first place, that the raised portion of the vessel above the main or tonnage deck is not a third deck in the sense of the 5th sub-section of the 21st section. It is quite true that when the openings in this upper construction are covered there is a continuous platform from stem to stern. It also appears that the ship is to a large extent worked from the top of this upper deck, although it is also true that the main or tonnage deck retains to some extent the character of a weather deck, and that the scuppers or outlets for water are placed there, and not on the upper deck. But the conclusive ground on which it is impossible to hold that this covering or platform, although capable of being made continuous from stem to stern, can be considered as a third deck is, that the doors at the termination of each of the openings of the space in question, which reach down nearly to the level of the main deck, are not so constructed as to be capable of resisting the pressure of the sea. The answer of Mr Mumford to the last question makes it clear that the result of this is that it is impossible to load the vessel to the depth to which, if this were a proper third deck, she ought to admit of being loaded. It would also seem that the fact of the scuppers being placed in, and opening from, the main deck has the same effect. If the vessel were loaded to the depth to which a three decked vessel ought to be capable of being loaded, she would not be seaworthy. The second question is one of more difficulty. The words of sub-section 4 are singularly deficient in precision; but, taking the report which we have as the only evidence in the case, I am unable to say that the space in question is a |