Fish Case "Exceptional" Say Railways
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An Attempt to Establish a Principle in Dealing With Objections to A Licences. Reference to the Road-Rail Pact an Important Feature
THE " fish case," in which 22 con. corns engaged in the carrying of fish from North Shields to London and other centres, are fighting objections by the railway companies to the renewal of their licences, will go down in history on two counts at least. First, that in its conduct an attempt is being made to establish a principle. Secondly, that it is the first important case in which reference has been made to the road-rail agreement.
How important this case is considered to be by both sides may be judged from the fact that the road hauliers concerned briefed Mr. E. G. Woodward, K.C., and Mr. Campbell Wardlaw, of Newcastle, and the railway companies Sir Walter Monckton, K.C., who was supported by Messrs. Pereira, Merrit and Mayo.
The railways' submission was, first, that in the special fish trains run from North Shields to London—trains of semi-insulated vans equipped with couplings and brakes of passenger-train type—they have provided suitable and adequate facilities. Those provided by road hauliers were, accordingly, superfluous, it was suggested. Moreover, the railway companies endeavoured to show that it might be that the speed limit had on occasion been exceeded during the journey, and that, for that reason, it was not in the public interest that this road service should be run.
Railways on Cost Question.
They further tried to demonstrate that the principal factor which influenced fish merchants to send their traffic by road was cost, as exemplified first by comparison of the rates and, secondly, because they had found they could safely consign their fish by road in boxes less expensive than those which were required if the fish were sent by rail.
Sir Walter Monckton sought to establish that the change from irregularity to regularity, in the conveyance of fish from North Shields to London, as evidenced by the growth of that traffic from small beginnings to its present dimensions, approximating to 40 oer cent, of the total tonnage of Norwegian fish, was proof of change in the natute of the buSiness of the haulier thus engaged.
He went farther and made this extraordinary submission: that if the Northern Licensing Authority, in its wisdom, decided to renew some of these licences, he should take precautions to ensure that the object to be attained by the refusal of some of them, namely, the diversion of this traffic back to the railways, should not be evaded by the substitution of licensed vehicles in place of those for which the licences were refused.
He mentioned that Sir John Maxwell, as the Licensing Authority, had power to terminate a licence at the end of any calendar month. He further sug gested that short-period licences only should be issued, so as to give the Authority an opportunity for frequent review, so that any tendency towards substitution as just described . could immediately be discovered and ended. Carried to its logical conclusion, this suggestion might involve the issue of monthly licences!
Mr. Woodward, for the hauliers, referred to the fact that in published statements the railways have said that they do not aim at or hope to create new monopolies. He quoted extracts from railway propaganda. Moreover, an the provisional agreement between road and rail, the railway companies had said that they would object to renewals of A licences only in exceptional cases, following this by asking the question: " Will you tell me whether this case would be considered as an exceptional case?" The answer was " Certainly."
It was in his final submission to the Authority that Mr. Woodward endeavoured to establish a principle to be used in deciding cases of this kind. He sought to establish that the term " change in the nature of the business" could usefully apply only to the extent of justifying refusal to renew a licence if the change in character was such that the vehicle or vehicles, the employment of which had been changed, could clearly be indicated. He referred to such cases as that of Coleman, Modern Haulage, Stewart and O'Sullivan. In all these instances it had been possible to indicate that vehicles formerly engaged in one description of work had been diverted and were now employed in another.
That, he pointed out, did not apply in any of the cases before the Court. The vehicles engaged in fish haulage were only partially employed upon that work. None of it was entirely devoted to it, none had been diverted from any other work to this traffic.
Dealing more directly with the plea that there had been change of circumstances, he pointed out that these vehicles were licensed to carry general goods and asked if fish did not fairly come under that description. He said that any change was merely one of degree, not nature. He pointed out that no man's business is stable and the quantity that he may carry from time to time is determined by industrial and commercial conditions.
Road's Important Advantages.
He referred to the Alexander case, in which it had been shown that the condition of the fish, when it arrived at its destination, was better when carried by road than by rail. This matter, the economies available in respect of packing and rates of transport, the possibility of quick settlement of claims for damages, the flexibility of the service (in that lorries need not, as trains must, depart at specific times) were all matters to which strict attention must be paid by a merchant who hoped to make his business flourish.
It was in the public interest that businesses should flourish. There should be alternative and competing modes of conveyance, first, to give the trader the benefits of freedom of choice, secondly, for reasons which would present themselves when a national emergency arose. A monopoly was contrary to public interest.
He referred to a statement by the Appeal Tribunal that the Blyth and B.C.L. cases did not involve any question of principle.
On the matter of the suggestion that the speed limit had been exceeded, he said there was obviously some confusion of thought. That the limit had occasionally been exceeded was no proof that it had to be exceeded in order to provide the necessary facilities. Indeed, the evidence was contrary to that view. Decision was deferred by the Licensing Authority, as it was thought that an appeal would be likely.