Monday, November 18, 2013

Calmac corporate history

The "Lord of the Isles" en route between Oban and Colonsay - picture credit Neil Roger

Caledonian MacBrayne is the name in big letters along the side of the ship but the small print on the back of your ticket says you're travelling with a company called Calmac Ferries Ltd (CFL).

And you may have noticed the new vessels for Raasay and Stornoway have been commissioned by something called Caledonian Maritime Assets Ltd (CMAL). You're less likely to be aware that the holding company for the Scottish Government's publicly owned ferry services is called David MacBrayne Ltd (DML).

All these new entities are a by-product of the compulsory EU tendering process a few years back, you'll be thinking. Correct and that explains why CFL was incorporated in 2006. But how come Companies House reveals that DML was incorporated in 1928 and CMAL as far back as 1889? That betrays a more venerable corporate history. Here it is.

Pioneered in 1819 by Henry Bell's "Comet", by the 1840s, the steamer services on the west coast of Scotland north of the Clyde had become consolidated in the hands of the Liverpool firm of G & J Burns. But in 1851 they sold their Scottish operations to a partnership between David Hutcheson, his brother Alexander and the Burns' nephew, David MacBrayne. These three traded in partnership as "David Hutcheson & Co" until 1878 when the Hutchesons retired. Thereafter MacBrayne continued the business in his own name. He took his sons into partnership with him in 1902 and the firm was incorporated as David MacBrayne Ltd in 1906.

It's David Hutcheson who's commemorated by the obelisk at the north end of Kerrera so prominent on the left as you steam out of Oban bay for Mull and islands beyond:-

The Waverley departing Oban past the Hutcheson Monument - photo credit Roy Tait
Meanwhile, down on the Firth of Clyde (where, with one exception, MacBraynes didn't operate), the steamer services to Dunoon, Rothesay and Arran etc. were in the hands of the three principal Scottish railway companies, the Caledonian (CR), the Glasgow and South Western (GSWR) and the North British (NBR).

In 1889, the CR incorporated a shipping subsidiary - the Caledonian Steam Packet Company Ltd (CSP) - to run steamers from its railheads at Gourock, Wemyss Bay and Ardrossan. In 1923, the CR and GSWR (along with other companies) merged to form the London, Midland & Scottish Railway (LMSR). The ex-GSWR ships were gradually absorbed into the CSP and adopted a common livery of black hull and buff funnel with black top.

Queen Mary II at Lochgoilhead in CSP livery - photo credit Douglas Campbell
At the same time, the NBR was absorbed into the London & North Eastern Railway (LNER) and continued to operate from its railhead at Craigendoran (closed now - was between Dumbarton and Helensburgh) under a livery of black hull with red, white and black funnel (like the Waverley - as she was the last ship ever ordered by the LNER, she reverted to their livery under heritage ownership.)

Back beyond the Crinan Canal, meanwhile, MacBraynes ceased trading in 1928. Their undertaking was rescued by a partnership between the LMSR and Coast Lines (a Liverpool coastal shipping company which had previously absorbed the Burns operation which originally spun out the Hutcheson/MacBrayne operation in 1851). This joint venture incorporated itself as David MacBrayne (1928) Ltd although the date in the name was soon dropped. (I'd guess the (1928) was included because the new MacBrayne company was registered at a time when the old one hadn't been wound up yet: Like ships, you can't have two companies with the same name.)

In terms of livery, the new incarnation of MacBrayne's briefly flirted in the early 1930s with a grey hull but soon reverted to the traditional black to accompany the red funnel with black top which had been a constant throughout their history:-

MV Lochfyne at Staffa in the short-lived early 30's grey livery
The next big date in the corporate history was 1948. That year, the LMSR and LNER railway companies were nationalised as part of British Railways (BR). The practical effect was that the LNER ships on the Clyde (including the then brand new Waverley) joined the CSP Clyde steamer and had their red white and black funnels repainted in buff and black top. MacBraynes became half state owned (i.e. the LMSR share which had passed to BR) and half privately owned (Coast Lines' half) and retained its red funnel with black top livery.

In 1957, BR revived the "Caledonian Steam Packet Company" brand, the company having been very much in the background (small print on the back of the ticket) as far as the public was concerned since 1923 after which the branding had simply been LMSR then BR Clyde Coast Steamer Services:

Another livery change took place in 1965. That was the year most BR ships (including the cross Channel, Irish and Isle of Wight ferries) adopted a red (previously yellow) funnel with black top adorned with the familiar BR double arrow logo. Their hulls were also changed from black to "monastral blue". But on the Clyde, while the CSP fleet adopted the new hull colour, in a nod to the company's individual history within the state railway empire, it was allowed to keep its buff funnel but now adorned instead with a rather small red lion rampant.

CSP car ferry MV Cowal (1954) en route from Rothesay to Wemyss Bay in the 1965 "monastral blue" livery. Photo credit Rod Lightbody

The next big date was 1969. By the late 60s, the rationale for having state shipping operations under the control of state railway operations was becoming less and less obvious considering how many passengers were now joining the ships from road transport rather than trains - many were even now driving their own cars aboard ships specially designed for the purpose, the new-fangled "car ferry". In Scotland, the solution adopted was that the CSP was transferred from BR to the state bus services quango, the Scottish Transport Group. In consequence, the blue hulls were repainted black but the red lion on the buff funnel was retained.

The STG also acquired BR's 50% shareholding in MacBrayne's and, in July 1969, bought Coast Lines' share as well so that, for the first time in the company's near 120 year history, it was wholly state owned. No change in their perennial colour scheme of black hull and red funnel with black top, however.

MacBrayne's Clansman pulls away from Armadale for Mallaig in the early 70s - photo credit Tom

With the Clyde and Western Isles services now both under the same management, the next logical step was for MacBraynes and the CSP to merge and this happened on 1st January 1973. In corporate terms, what happened was that the Caledonian Steam Packet Company Ltd (incorporated 1889) changed its name to Caledonian MacBrayne Ltd and David MacBrayne Ltd (inc. 1928) transferred its assets (the ships and the piers) to that company. The merged corporate livery involved the CSP red lion being placed on a yellow disc on the red funnel of MacBraynes.

Calmac colours applied to the funnel of the first ever Scottish car ferry, the CSP's MV Arran of 1954 - photo credit Arnie Furniss
Except the merger was not as complete as generally believed. 1973 was in the middle of the transition from the traditional pattern of separate fleets of mail steamers and cargo vessels to all-purpose ro-ro ferries and in fact it was only the latter which transferred to the merged Calmac. David MacBrayne Ltd (DMB) continued a separate existence post 1/1/73 with five of their older ships - the Loch Arkaig (1942), Lochdunvegan (1946), Loch Seaforth (1947), Loch Carron (1951) and Claymore (1955), none of which ever sported a lion on its funnel. The intention was that Calmac would be financially self sustaining on the car ferry routes to the bigger islands while DMB would continue - at least in the medium term - to serve "thinner" routes to smaller islands such as Coll, Tiree, Colonsay, Raasay and the Small Isles on a subsidised basis. You can read about this in Parliament here. Of course, the dream of financial viability never came to pass, even on the major routes. I don't know exactly when DMB finally went out of business and the whole operation was formally taken over by Calmac but I would guess the mid/late 70s after all of the islands (bar the Small Isles) were being served by car ferries (1974) and the last cargo service ceased (1976).

MacBrayne's last cargo ship, MV Loch Carron (1951) leaves Oban in the early 70s - picture credit syntax
In the following decade, the 1980s, the bus companies which formed the bulk of the Scottish Transport Group's operation were privatised leaving just the perennially unprofitable Calmac in state ownership. Hence, the shares in the company were transferred to the Secretary of State for Scotland in 1990 in order that the STG could be wound up. The shareholding transferred to the Scottish Government upon devolution in 1999.

Orkney & Shetland - Northlink

The services to Orkney and Shetland had been operated by P&O and its antecedent companies (including Coast Lines which had owned a half share in MacBrayne's 1928-69 and was taken over by P&O in 1971) for over a century until October 2002 when they were beaten in a tender for the subsidy by a joint venture between Calmac and the Royal Bank of Scotland. Branded "Northlink", the Calmac/RBS JV was incorporated as a new company called Northlink Orkney and Shetland Ferries Ltd (company number SC212342). This contract ran into trouble - I mustn't digress into why, but the net upshot was that it was re-tendered early. This time, Calmac (on its own without RBS) was the sole bidder and regained the contract which commenced in July 2006. The corporate vehicle for the new contract was a company originally incorporated in 1949 under the name Arran Piers Ltd (APL) by the Duke of Montrose as owner of the island. It was taken over by the CSP in 1969 in order to upgrade Brodick and Lochranza piers for ro-ro ferry operations. On the merger of the CSP with MacBraynes in 1973, APL was renamed Caledonian MacBrayne Holdings Ltd. It was again renamed Northlink Ferries Ltd (company number SC027370) in May 2006 in order to be the vehicle for Calmac's Orkney and Shetland Northlink branded services.

Calmac's northern incarnation - MV Hamnavoe departs Stromness in Orkney for Scrabster - picture credit Premysl Fojtu
2006 was also the year tendering came to the west coast. In preparation, Calmac was divided into two entities - a company to own the ships and associated shore infrastructure ("Vesco") and another company ("Opsco") consisting essentially of Calmac's management and staff to operate them on charter from Vesco.

In corporate terms, Caledonian MacBrayne Ltd (originally incorporated in 1889 as the Caledonian Steam Packet Company Limited and which changed its name in 1973 upon the merger with MacBraynes) became the Vesco and changed its name to Caledonian Maritime Assets Ltd (CMAL). The Opsco was a new company called Calmac Ferries Ltd (CFL - company number SC302282). The separation took effect in October 2006 with the intention that private companies would, in due course, be able to bid against CFL for the subsidy to operate CMAL's ships. In the event, however, none did at a tendering exercise carried out in 2006/07 so the operation continues to be wholly state owned with CFL having a contract running from 1 October 2007 to 30 September 2013, since extended to 2016.

In actual fact, there were two other Calmac Opscos incorporated in 2006. Cowal Ferries Ltd (Company no. SC306519) was formed to operate the Gourock to Dunoon service. This route was treated as a special case due to being the only one in the Calmac network subject to private sector competition in the shape of Western Ferries. Nobody - not even Cowal Ferries Ltd! - bid for this service in 2006/07 so CoFL were simply ordered by the Scottish Government to carry on the route on a subsidised basis.  The third Opsco was Rathlin Ferries Ltd (Company no. SC306518) incorporated to run the Ballycastle-Rathlin service with subsidy from the Northern Ireland Executive.

Western Ferries and Calmac (Cowal Ferries Ltd) share the same water between Inverclyde and Cowal - photo credit Stuart MacMahon

Also in 2006, David MacBrayne Ltd (DMB - incorporated 1928 but dormant since the late 70s) was re-awakened to act as the holding company for Northlink Ferries Ltd and the three Calmac Opscos, Calmac, Cowal and Rathlin Ferries Ltd. Note that DMB does not hold CMAL which is held directly by the Scottish Government.

CMAL also owns the Caledonian MacBrayne/Calmac brand and licenses this to CFL. CMAL is also the sole shareholder in a dormant company called Caledonian MacBrayne Ltd (company number SC308636) incorporated in 2006 solely to hold that name so no-one else could have it.

Below is a somewhat artless graphic of the structure as at the end of 2007:-

It only remains to update on developments since then:-

* Rathlin Ferries Ltd lost its contract in 2008 (although the current operator continues to charter CMAL's MV Canna).

* The European Commission wasn't happy with the way the Gourock-Dunoon tender had been handled so - to cut a long story short - it was re-tendered in 2011. It was won by another new DMB subsidiary (i.e. Calmac Opsco), Argyll Ferries Ltd (company number SC391762) which took over the route on a passenger only basis on 30 June 2011. AFL does not use the Calmac brand and just to show how illogical these things are, its two vessels are owned by DMB rather than CMAL as you'd expect.

* Northlink Ferries Ltd lost its contract to Serco in July 2012. They continue to trade under the Northlink brand (I don't know who that belongs to) with the same fleet (which doesn't belong to CMAL either - a bank, I think but mustn't digress into that now).

Calmac's houseflag on MV Lochmor at Rum in the early 1990s
This must be the dullest blog I've ever written so I'll finish it with a timeline:-

1851 - David and Alexander Hutcheson and David MacBrayne go into partnership as David Hutcheson & Co.

1878 - Hutchesons retire and David MacBrayne continues the business in his own name.

1889 - Caledonian Steam Packet Company Ltd (CSP) incorporated as a subsidiary of the Caledonian Railway.

1923 - CSP and Glasgow & South Western Railway steamer fleets merged into the London, Midland & Scottish Railway (LMSR) fleet.

1928 - MacBrayne family cedes control to new company, David MacBrayne Ltd (DMB) jointly owned by the LMSR and Coast Lines.

1948 - LMSR and LNER railways and their respective steamer fleets (including 50% share of DMB) nationalised as British Railways (BR).

1949 - Arran Piers Ltd (APL) incorporated.

1957 - CSP brand revived for BR Clyde steamer services.

1965 - CSP livery changed to "monastral blue" hull and red lion rampant added to buff funnel.

1969 - CSP and BR's 50% share of DMB transferred from BR to Scottish Transport Group. STG also acquires Coast Lines 50% share of DMB. CSP livery reverts to black hull. CSP takes over APL.

1973 - CSP and DMB merge to form Calmac. CSP (inc. 1889) changes its name to Caledonian MacBrayne Ltd (Calmac). APL changes name to Caledonian MacBrayne Holdings Ltd.

late 1970s - residual independent DMB services integrated with Calmac.

1990 - STG privatised and wound up - shareholding in Calmac and (dormant) DMB passes to Secretary of State for Scotland (to Scottish Government in 1999).

2002 - Calmac in partnership with Royal Bank of Scotland takes over Orkney & Shetland services branded as Northlink (Northlink Orkney and Shetland Ferries Ltd incorporated.)

2006 - Northlink Ferries Ltd (NFL - ex Caledonian MacBrayne Holdings Ltd, ex Arran Piers Ltd) takes over O&S contract.

2006 - Calmac changes name to Caledonian Maritime Assets Ltd (CMAL). Its operations hived off to new operating companies (Opscos) Calmac Ferries Ltd (CFL), Cowal Ferries Ltd (Gourock-Dunoon) and Rathlin Ferries Ltd (RFL).

2006 - DMB (inc. 1928) revived to act as holding company for Opscos NFL, CFL, CoFL and RFL. 

2008 - RFL loses Rathlin contract.

2011 - Cowal Ferries Ltd's Gourock-Dunoon contract transferred to new DMB subsidiary, Argyll Ferries Ltd.

2012 - DMB subsidiary NFL loses Orkney & Shetland contract to Serco (which continues to trade under Northlink brand with same leased ships.)

2013 - CFL's contract extended to 2016.

The Waverley in 1973 - her first and last year in Calmac livery - phot credit Hugh Spicer

Sunday, October 6, 2013

Lochrosque - Part 2

Part 1 here

Looking over Achnasheen, west along Loch a' Chroisg
It's September 1914 and World War I has been underway for just a few weeks. Sir Arthur Bignold is at dinner at Lochrosque Lodge when his butler is summoned to the door. He is surprised to be confronted by an armed raiding party led by no less than the First Lord of the Admiralty, Winston Churchill!

It sounds like something out of "Monarch of the Glen" but it's true. Driving past Lochrosque en route to inspect the Royal Navy base at Loch Ewe, Churchill had noticed the searchlight at the top of the tower:-

Picture by kind permission of Helen Murchison,
On arrival at Loch Ewe, he was informed of an unidentified aeroplane seen in the area (a very rare occurrence in 1914) and began to suspect the searchlight could be part of a plot to guide enemy aircraft (Zeppelins, perhaps) to the fleet in Loch Ewe. Hence the armed interruption to Sir Arthur's dinner. In fact, the searchlight was for spotting deer on the surrounding hillsides at night by the reflections of their eyes to make it the easier to hunt them the next day - unsporting, perhaps, but hardly treasonable. Unconvinced, the First Lord had the light disabled and, upon his return to London, ordered the Intelligence Services to investigate Bignold, his guests, friends and servants.

Sir Arthur Bignold died in 1918 (or 1915 in other accounts), his reputation as a patriot intact. Lochrosque Estate passed to his only child, his daughter, Mary. In 1888, whilst on holiday in Tenerife with her parents, she had met and married a local Spanish nobleman, Alberto Cologan y Cologan (the double surname betraying that both his parents were of Irish ancestry), the Marques de Torrehermosa.

At this point, the history (so far as I can discover it from online sources) becomes rather elusive but it seems from the website I got that picture of Mary Bignold from (here) that she was divorced from the Marques and had remarried by the time she inherited Lochrosque from her father. According to this website (in Spanish) about the Tenerife Irish, Torrehermosa returned to his native island but his two children with Mary - Arthur and Consuelo - remained in Britain. The former, who adopted the surname "de Cologan", eventually succeeded his father as Marques de Torrehermosa.

Meanwhile, according to the Achnasheen and Garve News and Views website (which is where I got the picture of Cabuie Lodge which originally piqued my interest in all this but which I hadn't read carefully enough when I was writing Part 1 of this article: note also the scans of the illustrated pages of the Lochrosque gamebook), it seems the western part of Lochrosque Estate, with the Lodge, was sold around 1920 to a Harley Street dentist, John MacKenzie.

He died in the 1940s following which the Lodge is said to have been sold to an American who dismantled it stone by stone and transported it to the USA. The Tenerife Irish website linked to above speaks of Lochrosque being demolished during WW2 and I must say the transporting it to be rebuilt in America has a whiff of apocryphality about it - is it not more likely it just suffered the same fate as so many similar late Victorian and Edwardian houses of simply being demolished as having become an expensive liability in changed times?

Looking east along Strath Bran - Loch a' Chroisg bottom left
In any event, Arthur de Cologan, Marques de Torrehermosa, Sir Arthur Bignold's grandson, inherited the eastern part of the estate centred on Strathbran Lodge and died in 1968. He was survived for a number of years by his widow, Irene, and I can remember in the 1980s tales of the rather eccentric and colourful "Marquesa" of Strathbran. After her death, the estate passed to cousins, the Seligman family who still own it at the present day.

Strathbran Lodge - picture credit John Allan

Wednesday, October 2, 2013

Lochrosque - Part 1

Anyone who read my post about Cabuie Lodge may have noticed I didn't mention who built or owned it. That was deliberate as it would have involved a digression meriting a blog of its own. Time to rectify the omission now:-

Along with Strathbran Lodge, Cabuie was one of two "out stations" (as it were) of a 30,000 acre (12,000 hectare) sporting estate, the "headquarters" of which was Lochrosque Lodge, just west of Achnasheen on the A832 going west towards Kinlochewe and Gairloch.

Lochrosque Lodge by kind permission of Helen Murchison of Achintraid
Like Cabuie, Lochrosque Lodge doesn't exist anymore. I don't know when or in what circumstances it was demolished (except it wasn't due to flooding, as with Cabuie, because the eponymous Loch a' Chroisg the house stood beside is not a hydro reservoir). If anyone does know the facts of the demolition, do leave a comment. [EDIT - some more information on this in Part 2: link below] But what's marked on modern maps as "Lochrosque Lodge" surviving today is, in fact, just the stable block of the building pictured above. It's the smaller building on the left in the picture below:-

Lochrosque "New Lodge" was built as a replacement of an earlier house (just out of view on the right of the picture above). Known as Lochrosque "Old Lodge", it still exists and is the building in the left foreground in the picture below. (The buildings in the right foreground are, I think, the Home Farm buildings of the New Lodge (visible behind). Most of them have gone now as well.):-

You can see the development of the estate in the differences between the 1881 and 1905 editions of the Ordnance Survey 6 inch maps below:-

The Old Lodge as shown on the 1881 OS 6 inch map

The New Lodge appears to the west on the 1905 OS 6 inch map
I've known for many years that there had once been a much grander house at Lochrosque but it was only in the course of researching this blog that I realised that it was on the north side of the road. I'd always assumed it had been on the south side. But the existing buildings south of the road are, in fact, the Old Lodge plus a gate lodge and the remains of some of the home farm steadings built in association with the New Lodge on the other side of (and slightly further along) the road:-

The Old Lodge (left) with the later gate lodge behind the trees to the right
The Old Lodge is a single storey listed building and, according to its Historic Scotland citation, it was built around 1830. Buildings of that age are pretty scarce in this part of the country and considering the literally hundreds of times I must have driven past, I never knew one existed behind these familiar walls just past Achnasheen. Must stop for a closer look next time I'm passing.

Picture copyright RCAHMS
Back to the "New Lodge", though, I'd guess it was built at exactly the same time as Cabuie, in the 1890s, and as part of the same development of the estate under a new owner: comparing the picture of Cabuie (here) with the picture of the Lochrosque New Lodge at the top of this post, they look to be of similar architectural style.

The owner was Arthur Bignold (1850-1918) who acquired Lochrosque Estate in, I believe, 1879 although, to judge by the references in Grimble (see below), it's possible he bought the estate in three tranches, and it was only after he acquired the last of these, Lochrosque around 1890, that he embarked on redevelopment of the lodges. Grandson of the founder of the Norwich Union Insurance Company and knighted in 1904, Bignold was, from 1900 to 1910, the Conservative MP for "the Northern Burghs", namely Kirkwall, Wick (where he is the eponym of Bignold Park and the former Bignold Cottage Hospital), Dornoch, Tain, Cromarty and Dingwall. You can see details of his speeches to Parliament on the Hansard website (a tremendous free resource for local history). Bignold's contributions range through such esoteric topics as lady inspectors of factories and the supply of saddles to Indian cavalry officers but a recurring theme is the North Sea herring fishery as you'd expect from the MP for Wick which was one of the most important fishing ports in Scotland at that time.

Sir Arthur Bignold MP
An interesting exchange took place in Parliament in 1902. The member for Ross & Cromarty, seconded by the member for Caithness, rose to ask the First Lord of the Treasury (not at that time the Prime Minister) what progress was being made towards legislating to prevent the spread of Highland deer forests at the expense of crofters and agriculture? Before the First Lord (A J Balfour - later Prime Minister and whose ancestors had, by coincidence, owned the neighbouring Strathconon Estate until 1877) could even answer, Sir Arthur Bignold of Lochrosque rose to remind the House that, in 30 years, only one person had ever been evicted to extend a deer forest.  (Read the whole exchange here.)

The reason for Bignold's defensiveness where deer forests were concerned becomes obvious from that bible of Victorian sportsmen, Augustus Grimble's The Deer Forests of Scotland (1896). Speaking of Sir Arthur's estate it says:-

"Achanalt was first afforested [i.e. converted from a sheep farm to a deer stalking estate] in 1879, Strathbran came next in 1887, followed by Loch Rosque in 1880 [sic. 1890?]. The three estates are excellent examples of what can be done with deer in a short time, for when Mr. Bignold first bought the property, there was nearly as good a chance of meeting with a Red Indian as of coming across a red deer." 

As well as developing the sport, Bignold is also said to have planted 8 million trees on the estate but this has all become an over long preamble to the strangest Lochrosque story and its sequel in the 20th century which I'll come back to in Part 2.

Stone marking plantations in Strathbran established by Arthur Bignold - photo credit Rob Woodall  

Wednesday, July 31, 2013

Crofting again: Wiay

Following on from Taransay and Out Skerries, the latest Scottish island to come up for sale is Wiay in the Outer Hebrides. Estate agents Bell Ingram are inviting offers in the region of £500,000 for this particular lump of uninhabited rock, bog and water with planning permission to renovate the only house on the island, a ruined crofter's cottage.

According to an article in the Daily Mail - which leads with the fact that £500k for a 970 acre (400ha) island seems quite reasonable considering that, in London, the same amount would only get you a very average house with tiny garden - the seller is a Mrs Sarah Chettle who lives in Dorset. She and her late husband saw a small advert for Wiay in 1980 and bought it "on a bit of a romantic whim" for "about £20,000" without - "so far as she can recall" - even visiting the island first. £20k is about £70k in today's money so 600% capital growth to £500k is a pretty impressive return on investment for a dimly remembered whim!

Is Wiay worth £500k? Let's cast a critical eye over Bell Ingram's sale brochure (you can download a copy from here - sorry, I don't know how to link directly to a pdf).

As usual, the estate agents major on the fact it's a "private" island and feature its sheltered anchorage, spectacular scenery and extensive wildlife. But as I said in the context of Taransay, there's no such thing as a "private island" a la Mustique or Branson's Necker Island etc. in Scotland. Under Scottish law, anyone has the right to paddle their kayak into that sheltered anchorage, go ashore and enjoy the scenery and wildlife: you don't have to part with half a big one for the privilege.

Looking south from Wiay to the hills of South Uist - photo credit Dr Julian Paren
Stalking (deer hunting), woodcock shooting and trout fishing are also headlined and it's true that, if you want to kill its wildlife, as opposed to just observe it, then you have to own the island. But considering the brochure admits there's merely "often the chance of seeing" red deer and woodcock, then the field sports opportunities of Wiay are likely be what estate agents are wont to describe as "challenging" (namely, theoretically possible but not very rewarding).

Photo credit - Dr Julian Paren
The biggest selling point is that planning permission (p/p) exists to renovate the old croft house on Wiay (pictured above: according to the brochure, the house was occupied until 1942). Strictly speaking, p/p for the renovation (see the plans below) was granted in 2008, this has now lapsed and Bell Ingram have applied to renew it. Significantly, the lapsed 2008 p/p seems to have included a condition that the renovated house could only ever be used as a holiday house and never as a permanent residence (that emerges from the Daily Mail article, not from the sale brochure.)

For a house on an island like Wiay, I'd want a porch to hang up wet water-proofs and wellies in!
You can see the application to renew the p/p here. It's worth reading the second document listed there "Reasoned Justification" (again, sorry I don't know how to link directly to a pdf). Prepared by Bell Ingram, this seems to have been a planning brief lodged in connection with the 2008 planning application. It may be out of date in some respects - for example, it notes that its owners "regularly inhabit" Wiay whereas the Daily Mail article notes that Mrs Chettle and her children "rarely visit" the island which is why she's decided to sell it.

Landing on Wiay - photo credit Graham Hewitt
Having been tangentially involved in this myself in a previous life, I'm always amused how properties are differently spun according to who you're trying to impress - the media, planners or prospective purchasers. Thus, for example, the planning brief notes that the owners bought Wiay "for purposes of amenity and conservation" while the Daily Mail quotes Mrs Chettle describing the purchase as a "romantic whim". And the planning brief describes the island as a "sanctuary" for indigenous species while the sale brochure majors on the opportunities for field sports: a shooting tenant "assists with conservation", the planning brief notes, by helping control mink, woodcock and snipe - I never knew woodcock and snipe were a pest of the order of mink requiring to be controlled but perhaps that just shows my ignorance.

OS 1959 1 inch map, Sheet 23 "South Uist"
The practical limitations on use of a place like Wiay are such that ownership is largely a negative role: there's not much you can do yourself but you can prevent anyone else building a house on it (or a windfarm, or a super-quarry or a nuclear re-processing plant come to that). So, yes, to that extent, the island is "private". But are there any third party or public interests to threaten this exclusivity on Wiay?

The sale brochure tells us there was a farming tenant until 2003 but there is now vacant possession. That being so, it's curious the application to renew the planning permission for the cottage confirms that it has been intimated to no fewer than three agricultural tenants, one a gentleman living in neighbouring Benbecula, another a director of Bell Ingram and the third a lady living in London. If I were doing due diligence on behalf of a purchaser of Wiay, I'd want to know what was going on there. And, in particular, that none of these three (particularly the Benbecula chap, obviously) could be a crofter. That's because a crofting tenant would have a statutory right to buy his freehold at 15 times the fair agricultural rent fixed by the Land Court. Such a rent is likely to be substantially less than £35 per acre. (£35 x 970 acres x 15 = £500k). In fact the fair crofting rent of Wiay would be nearer 35 pence per acre than 35 pounds!

The abandoned house on Wiay as seen on Bing maps
Doubtless there's an innocuous explanation for this plurality of agricultural tenants but even if none of them are crofters, the possibility exists that Wiay is what's known in crofting parlance as a "vacant" croft: one currently without a tenant. This is likely (though by no means conclusive) from the fact the aerial photography (above) suggests an abandoned smallholding. The sale brochure refers to a history of farming with residents in the house on the island until 1942 ("1950s" according to the planning brief). It's no stretch of the imagination in the Western Isles that a resident family worked a croft on Wiay as late as the 1940s or 50s before giving up the struggle, abandoning their tenancy and leaving the island. Indeed, the clue's in the name of the "crofter's cottage" mentioned in the sale brochure and planning application. (There's another example of that dichotomy - the word "croft" is a gift to marketing, the media and sucking up to planning committees but absolute poison in legal, administrative and commercial terms.)

The fact that Wiay might be a croft  matters because the owner of a croft - even one abandoned by its last tenant as long ago as the 1940s - has statutory duties enforceable by the Crofting Commission (CC). These duties are to live within 32km (20 miles) of the croft, cultivate it or put it to an alternative "purposeful use" approved by the CC and not to neglect it. Living in the south of England and dropping in from time to time for a bit of life-style conservation doesn't count.

If the CC considers the statutory duties of a croft are not being complied with by the owner, it has the power to compel it to be re-let - in perpetuity and at a rent nowhere near an economic rate of return on £500k - to someone who will comply with them. That's not as far fetched as it sounds: families have recently taken on crofts on virgin sites with no houses on the island of Rum, for example (read the story of one of them here).

If nobody wanted to take on the croft of Wiay (which unlike Rum doesn't have a car ferry to the mainland!) and manage it in compliance with the statutory duties, the Crofting Commission might consider granting a "decrofting direction" to remove it from the crofting law regime altogether. But the CC - who are more hawkish about their remit nowadays than they were 30 years ago - are very sparing with decrofting directions: they don't like to see land lost to crofting without a very compelling reason. (It's possible Wiay has already been decrofted but, if so, I would have expected that to be mentioned in the sale brochure.)

Aerial image from Bing Maps
All things considered, then, if you genuinely want to move to the Outer Hebrides to take on an off-shore smallholding (and can convince the Crofting Commission of your credibility), then bid for Wiay what it's worth to you. But unless the vendors can prove the island has never been a croft (a difficult negative to prove in the Western Isles), or that it was but has been decrofted, it is most emphatically not the sort of thing you'd want to shell out six figures on for a "romantic whim". I suspect it's just as well Mrs Chettle told the Daily Mail "I don't really mind if it doesn't sell."

Tuesday, April 30, 2013

A bit of ferry law

There's a nice book coming out today, "Scotland's Turntable Ferries" by Rob Beale and John Hendy:-

The cover photo shows the only remaining turntable ferry, the MV Glenachulish at the Glenelg side of her regular route, the Kylerhea Ferry
I heartily commend the book and what I think is so great about it is that, for the first time, all the knowledge on this subject has been gathered together in one volume. It deserves its place on any British coastal shipping enthusiast's bookshelf as an important work of reference and - as it's nicely written - as a good read as well.

This blog gets a mention in the bibliography which is very kind of Rob and John considering I'm not sure what I did to merit that beyond contribute a couple of images from my postcard collection. Anyway, I thought I'd take the opportunity to contribute here a bit of ferry law.

Strome Ferry on an 1850 Admiralty Chart

Rather like the right to fish for salmon, the right to run a ferry across a stretch of water (salt or fresh) belongs to the Crown. The Crown could (and very often did) grant that right in relation to a particular crossing out to one of its subjects. It often did this in conjuction with a grant of the land on one or both sides of the ferry. The Crown also frequently granted rights of ferry to be shared between the owners of the land on each side. It could also (though less commonly) grant the right of ferry to a third party who did not own any land on either side. Another variation on the theme was that a right of ferry previously granted by the Crown to the owner of one or both sides could be sold on to a third party who did not own land on either side. But the historic connection with land explains why rights of ferry were granted and transferred in the same way as land, by title deeds registered in the Register of Sasines (pronounced SAY-zeens: the register of deeds effecting land transactions in Scotland established in 1617). The owner(s) of the rights was obliged to operate the ferry at reasonable fares and usually achieved this by leasing the rights to someone who would operate the ferry and provide the boats. The rent payable would often take the form of a royalty of so much per passenger, horse, cart etc. carried.

Kyle of Lochalsh, 1990

Now this is all very dry and esoteric - does it have any practical relevance? Well it certainly did in April 1923 when the London, Midland and Scottish Railway Company (LMSR), as the owners of the railway to Kyle of Lochalsh and of the ferry rights across to Kyleakin, sued one Lachlan MacDonald, of "South of Obbe, Kyleakin", in the Sheriff Court at Portree for an interdict (Scottish law equivalent of an injunction) to prevent him:-

"from conveying passengers for hire by boat over the stretch of water between the village of Kyleakin in the parish of Strath and county of Inverness and the village known as Kyle of Lochalsh in the parish of Lochalsh and county of Ross and Cromarty, and bounded on the east and west by imaginary lines drawn between Castle Moil, Kyleakin, and the Railway Pier on the mainland, and between the King's Arms Hotel, Kyleakin, and a point on the mainland half a mile west of the Road Ferry Pier [sic] respectively, being the limits of the pursuers' [the plaintiffs' - i.e. the LMSR] right of ferry, or in any way interfering with the pursuers in the possession of their said right of ferry. …"

In layman's language, the LMSR claimed that, as the owners of the ferry rights across Kyle Akin, they were entitled to an interdict against Lachlan MacDonald preventing him from trespassing on these rights.

The limits of the interdict claimed by the LMSR in red with the line followed by the ferry right up until replaced by the Skye Bridge (on the right) in yellow.
In 1923, there were not yet any car ferries at Kyle and the ferry fleet consisted of two motor launches of about 30 feet length, the Kyle and the Skye. The Kyle was equipped with a fixed platform athwartships onto which a single car could be driven and there was also a small barge which could take a car and be towed across by one of the launches:-

Photo credit Sandy Stevenson
This not very sophisticated operation was leased by the LMSR to one John Clark, described in the court procedings as "motor engineer, Kyleakin". Unusually, the boats employed at Kyleakin belonged to the LMSR as landlord and owner of the ferry rights rather than Mr Clark as tenant and operator. Anyway, it was no doubt he who prodded his landlord, the railway company, into taking legal action against Lachlan Macdonald who was alleged to be running a motor boat across the Kyle in competition.

The following facts were also adduced by the LMSR in support of their claim: The Highland Railway Act 1893, which authorised the Highland Railway Company (merged with various other railway companies to form the LMSR in 1923) to build the line from Stromeferry to Kyle of Lochalsh, had also authorised the HR to purchase the ferry rights over Kyle Akin to Skye. This it had done, the transaction being completed by two deeds of conveyance, both duly registered in the Register of Sasines: one was by the curator bonis [administrator] for Lord Macdonald of inter alia "the right of ferry appertaining to the lands of Kyleakin" and the other by Sir Kenneth James Matheson, Bt., of Lochalsh on the mainland side. It thus appeared that, prior to its acquisition by the HR, the ferry over Kyle Akin was an example of one owned jointly by the landowners on either side.

Kyle Akin in 1854 before the railway reached Kyle. The inn marked at Kyleakin on the south side is the King's Arms claimed by the LMSR as the south westmost limit of their ferry rights. Admiralty Chart
The sheriff-substitute at Portree granted the LMSR an interim interdict and set the case down for trial. But the railway company wasn't satisfied with this - it considered that, as the defences to the action stated by Lachlan Macdonald were so totally untenable, it was entitled to an immediate permanent interdict without being put to the expense of an unnecessary trial. So the LMSR appealed to the sheriff in Inverness. He upheld the decision of his subsititute (deputy) in Portree whereupon the railway company appealed again to the Court of Session in Edinburgh.

Kyleakin in the 1920s - the motor launch Kyle with its thwartships platform for carrying a car is moored on the left.

Three judges heard the appeal, their role being to decide whether Macdonald had tabled legally stateable defences. His argument was twofold: (1) the LMSR had produced title deeds from Lord Macdonald and Matheson of Lochalsh but no evidence that these titles ultimately emanated from the Crown; and (2) a rather vaguely formulated defence to the effect that, irrespective of the niceties of their deeds, the LMSR's title to the ferry in any event did not exclude members of the public setting up rival services. The latter defence was in respect that Macdonald alleged that various third parties at various times over many years had, as a matter of fact, run ferry services over the Kyle - something the LMSR dismissed as "poaching by local boatmen at irregular intervals during the summer season".

Looking from Kyleakin across to Kyle of Lochalsh in the late 1920s

The Court of Session disposed of Macdonald's first defence in short order: where disputes over property are concerned, it's a well established principle of Scottish law that you're not allowed to pick holes in your opponent's title unless you yourself are claiming to have a better title. Here, Macdonald wasn't putting forward any kind of title to the ferry rights of Kyle Akin at all.

As regards Macdonald's second defence, the court dismissed this on the grounds that it was an absurdity - the suggestion that the LMSR had a title to the ferry but that didn't preclude third parties offering rival services is like saying you own your house but any Tom, Dick or Harry is nonetheless entitled to live there. And, if, as Macdonald alleged, Toms, Dicks and Harrys had from time to time offered rival services, then the fact the railway company hadn't taken action against them in the past didn't preclude them from doing so now.

Kyleakin around 1960 - note the ferry flies the yellow with red lion rampant houseflag of the Caledonian Steam Packet Company

As a law student in the early 1980s, I recall the case of LMSR v Macdonald being cited as an example of the law of trespass (rather than ferry rights) in action. Apart from busting the myth of there being no law of trespass in Scotland (of course there is!), I remember thinking how interesting there should have been a court case about a ferry I'd been across. (And while we're on the subject of ferries meeting education, I also remember once at primary school (circa. 1970) everyone in class had to come prepared with a place they'd been to to mark on a map of Scotland - my contribution was Kyleakin.) 

Anyway, having thus vindicated their legal rights in court, the subsequent history of the Kyle Akin ferry rights is that, in 1935, the LMSR leased them to MacBraynes for an annual rent of £150 plus a third of the net revenue. MacBraynes gave up the lease in 1945 whereupon the LMSR delegated operation of the ferry to its shipping subsidiary, the Caledonian Steam Packet Company Ltd. That remained the arrangement until the CSP Co. merged with MacBraynes in 1973 to form Caledonian MacBrayne who ran the ferry until 1995 when it was superseded by the Skye Bridge.

Loading the final generation of car ferry at Kyleakin in 1990

The question of ferry rights came back to the fore in the 1960s in the context of by-passing the Strome Ferry. The rights across Loch Carron were owned by the operators of the ferry, the Cumming family, and the question arose whether building a road round the loch would amount to an infringement of their rights just as surely as building a bridge over the narrows would? That's a very nice point of law to which I would not like to conjecture an answer but I would have expected Ross & Cromarty County Council to have resolved the issue by seeking statutory powers to buy out the ferry rights (compulsorily if necessary) in the same way as if they were a piece of land required for the construction of the road itself.

This time, I don't know the chapter and verse of the outcome but I do remember the issue raising its head on one of the many previous occasions when the road round Loch Carron was closed by a landslide. I recall reading in the West Highland Free Press about the possibility of the Council reinstating a temporary ferry service at Strome but it being pointed out on behalf of the Cumming family that they, as the owners of the ferry rights (albeit dormant for 30 or so years), were the only people entitled to carry anyone across the loch. (Or to put it another way, the Cummings would be expecting their palms to be crossed with silver by the Council for the privilege of opening a temporary ferry.) On that occasion the road was re-opened before the expedient of a temporary ferry was resorted to. I don't remember the issue raising its head when the ferry was famously reopened in early 2012 - perhaps the current generation of Cummings have forgotten about their latent rights or just judged it impolitic to intervene.

The Cummings' MV Strome Castle at Stromeferry in the early 60s
In the last 50 years or so, many new ferry routes (mostly car ferries) have been inaugurated where none existed before. But if it's the case that the right to operate a ferry anywhere belongs to the Crown unless/until that right for a particular crossing is granted to a subject, why did the Crown never object each time MacBraynes/the CSP/Calmac opened a new car ferry route in the 60s and 70s?

Perhaps as these operators were state owned, the notion of applying for a Crown Charter was seen as robbing Peter to pay Paul (although that argument wouldn't apply to the routes opened by Western Ferries). Or perhaps the whole subject of ferry rights was just too obscure for anyone seriously to bother about.

1964 - the first ever timetable for MacBraynes' new Craignure car ferry service 

As recently as the last month, Calmac announced a new route, Ardrossan to Campbeltown. And it's worth remembering that the body which holds residual Crown rights such as ferry rights is the Crown Estate. In the last 20-30 years, it has become very hawkish in exploiting its rights - think fish farms and moorings associations paying rent for their little patch of the sea bed (another asset of the Crown). The next big thing for the Crown Estate is offshore renewables (wind, tide). The CE does not show any favours to public bodies such as harbour trusts and I'm sure CMAL (the state owned company which owns most of the piers Calmac operates to) will have budgeted for the pound of flesh which has to go to the CE for the seabed footprint of its proposed new terminal at Brodick.

Bear in mind also that the Crown Estate is not devolved - even as regards its Scottish assets, the revenues go to London and it answers to Westminster. Therefore, might someone at the CE be blowing the dust off old legal case reports prior to dropping Calmac a line - much as I imagine someone at the LMSR did to Lachlan Macdonald in 1923?

Well, if I were instructed as senior counsel for the defender (Scottish legal term for "defendant") in Crown Estate Commissioners v Caledonian MacBrayne, there may be a crumb of comfort in the Kyle Akin case back in 1924.

One of the Court of Session judges, Lord Sands, gave a minority dissenting judgement putting a different spin on the law of ferry rights thus: instead of it being the case that the Crown owns the right to ferry people across all water between all points unless/until it grants that right out at specific crossings, the position is in fact that anyone can run a ferry between any two points unless/until the Crown grants someone a monopoly at a specific location. (Lord Sands conjectured that might have been the defence Lachlan Macdonald was attempting to propone against the LMSR but, as his counsel had not specifically articulated it in his pleadings, his case still fell to be dismissed.) If that is the law, it's hard to imagine, politically, the Crown Estate intervening to award a monopoly between Ardrossan and Campbeltown to anyone but Calmac. But whether "the Sands dictum" or the conventional view is the correct statement of the law of ferry rights, I don't know. I doubt if we'll ever find out either.

Strome Ferry