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