Contract Hire: Are the B.T.C.
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Acting Illegally? asks Detector IT is surprising that no one has challenged the legality of the British Transport Commission's actions with regard to transport units containing contracts. Section 1 (1) of the Transport Act, 1953, lays on the Commission a duty "to dispose, as quickly as is reasonably practicable, of all property held by them for the purposes of" the Road Haulage Executive.
One would suppose that any action by the Commission since the Act became law would be illegal if it directly prevented them from disposing of units "as quickly as is reasonably practicable." It is curious, therefore, that their withdrawal from sale of units with contracts, because the customer refused his consent to the successful tenderer taking over the Commission's obligations, has gone unchallenged despite the adverse comment it has occasioned.
Most, if not all, the contracts included in transport units have been renewed or made since the passing of the Act and, therefore, with full knowledge of what legal obligations the Act imposes. Nevertheless, the Commission have decided, with the approval of the Road Haulage Disposal Board, that the successful tenderer for a unit including a contract is required to seek the consent of the other party to his taking over the Commission's obligations. If consent is not given, "the Commission will withdraw from the sale the vehicles . . . necessary to enable them to continue to carry out the contract." In other words, the Commission, with the Disposal Board's approval, are giving precedence to contracts that became effective after the passing of the Act, instead of carrying out the duty imposed by the Act before those contracts were renewed Dr made.
Delay to be Avoided
Section 1 (2) requires positive action to avoid delay in lisposals. It reads: "it shall be the duty of the 2ommission to carry on the existing road haulage indertaking in such manner as may appear to them to )e expedient for the purpose of enabling the said voperty to be disposed of without delay. . . ."
The Commission appear to act in such a manner that hey cause a great deal of delay and avoid disposing of he said property. Is this view wrongly held? If so, vhy? If not, what is to be done about it?
Surprise increases when one reads the terms of the ontracts as given in the B.T.C. conditions of sale of ransport units: " An unwritten contract with Messrs.•
and Sons, Ltd., for the full-time operation and xclusive use of — vehicles listed in Part 1." Part 1 slates to vehicles which are to be included in someody's special A licence.
As one continues to read, it is disclosed that some or 11 of the vehicles are supplied without drivers. Now is really is curious, for vehicles hired without drivers lust be authorized by the licence (usually, if not always, le C hiring allowance) of the person providing the ivers. A special A licence is not needed by the vehicle vner when hiring out his vehicle without a driver. Likewise, the B.T.C. do not need a free A licence when they hire out the vehicles under similar arrangements— in fact, such hiring out is not haulage or the carriage of goods for hire or reward, and never was.
Yet if the customer is not willing for a successful tenderer to supply him with the same vehicles as the B.T.C. provides and on the same terms, the Commission consider that sufficient to justify the withdrawal of their acceptance of the tender. They then withdraw the whole unit from sale and carry on operating vehicles which they know they ought to sell and which the Act says they must get rid of without delay.
I always understood that the Commission (and the erstwhile R.H.E.) were set up to co-ordinate and integrate inland transport facilities for hire or reward. The Transport Act, 1947, lays down the Commission's powers to that end, but, in my view, they were not given authority to run a self-drive hire service for goods or passengers except when an acquired business was doing so, and then a time limit of three years was imposed on the Commission's operation of such a business. If it is argued that Section 2 of the Transport Act, 1947, gives them the power to carry on indefinitely hiring out vehicles without drivers, I would like to be shown where that authority is provided.
Employer is User
The words "to carry goods" do not, I suggest, mean something different from what they would mean in the Road and Rail Traffic Act, 1933. There, use of a goods vehicle for the carriage of goods lies with the employer of the driver and it would at least seem reasonable to say that a person who is not the user is not the carrier.
The 1947 Act makes it clear that the carriage of goods has the same meaning as in the 1933 Act and Licensing Authorities have emphasized that earnings from vehicles hired out without drivers do not constitute revenue from carriage for hire or reward.
Is it legal, therefore, for the B.T.C. to hire out vehicles without drivers, except within the three years allowed when an acquired undertaking ran such a business?
Whether or not it.is legal, why are vehicles which the Commission have hired out (thus swelling the C-licensed fleet of the country) to be given special A licences when their ownership, but not method of use, alters?
There is another question to which the answer would be interesting. Are these vehicles, operated under the C hiring allowances of the B.T.C.'s contract customers, also specified in the free A licences granted to British Road Services? Sub-paragraph 1 (2) of Part II of the First Schedule to the 1953 Act lays down that "No application for an A licence shall be made ... in respect of any motor vehicles which at the passing of the Act were being used exclusively for purposes other than for hire or reward."
The B.T.C., the Ministry of Transport and the Licensing Authorities all seem to be involved and the "contract-hire mystery" should be cleared up now. s35