Public Business. - Road Transport Bill, 1933—Report.

I move amendment 1 :—

Section 2. After paragraph (c), page 3, to insert a new paragraph as follows:—

(d) the carriage of goods in the ordinary course of his business as a furniture remover by any person or the successor in title of any person who has been habitually carrying on business as a furniture remover.

The object of the amendment is to secure that people who have been engaged for a lifetime or longer in a certain line of business will not have difficulties thrown in their way in the carrying on of that business. The amendment deals with a specialised type of business, namely that of furniture removers. I have in mind certain firms that have been engaged in this business for a considerable period. It is feared that they will be severely handicapped under the provisions of the Bill unless they are protected in the way that the amendment seeks. The amendment is intended to apply only to people who are engaged solely in the business of a furniture remover. I do not intend it to apply to people who remove furniture and carry on other classes of business at the same time. For example, the firms that I have in mind remove furniture from Dublin to Cork, to Galway, to Donegal or in fact, to any place that they are engaged to take it. They have been accustomed to do that for years. Unless the amendment is accepted these firms, as I understand it, will be obliged under the provisions of the Bill to apply for a licence to enable them to trade between Dublin and Cork, Belfast, and any other centre.

At present these people never know from one week to another in what part of the country they will be carrying on their business. Unless the Bill is amended in the direction I am seeking, a great hardship will be inflicted on these firms carrying on this specialised type of business. I am sure the Minister is well aware of the type of firm that I have in mind, and I hope he will agree that some effort ought to be made by a special provision not to handicap them unduly.

I second.

I do not see why there should be any definite distinction drawn between people who engage in the carriage of furniture for reward and those who engage in the carriage of any other commodity. The Senator who moved the amendment is not quite clear, I think, as to what the effect of the Bill will be in relation to such persons. Those who engage in the business of carrying furniture in exempted areas will, of course, be in no different position in the future to what they are at present. They will be able to carry on their business without a licence and without being under any added restriction or form of control. Those who engage in the business of carrying furniture outside the exempted areas for longer distances than those included in any of the exempted areas, will be entitled to get a licence for that purpose. That licence will authorise them to carry furniture in any district. There will be no obligation on them to get a separate licence for separate routes, or to apply for a licence every time they get an order to carry furniture between any two places. They can set out in their application for the licence the parts of the Saorstát, or the whole of the Saorstát if they so choose, in which they intend to carry on business, and they will automatically get a licence for that purpose if they are qualified to get it under the Bill: that is, if they have been regularly engaged in the business heretofore. In so far as their business extends outside the exempted areas, they are, of course, under the terms of the Bill, liable to acquisition by the railway company.

I do not think it is desirable that we should amend the Bill in that respect because I am aware that the railway company are desirous of getting this class of business. If they so desire they can either arrange to acquire the business voluntarily or apply for an order for the compulsory transfer of the licence. Such an application would have to be considered very carefully, but if it were decided, in the general interests, that it was desirable the business should be treated the same as any other road merchandise road carrying business and a transfer was made, the firm would be compensated for any pecuniary loss involved. There is, of course, the possibility that they may not be disturbed in the business at all; that the railway company may decided not to acquire them or apply for the compulsory transfer of the licence, in which case they will be subject in future to no restrictions except those which they voluntarily undertake, or to which they were subject heretofore. I, therefore, think that the amendment should not be inserted in the Bill. It would introduce considerable complications and open the way to similar applications in respect of other persons doing a specialised carrying trade. I am satisfied that there is no real ground for a distinction as between one such class and another.

I do not want to do anything that would leave a loophole in the Bill, but I think the Minister will admit that a hardship will be inflicted on these people under the Bill as it stands. As I have already pointed out they are doing a specialised business. They were in that business long before mechanical transport came on the roads. Some very old firms are engaged in it. They will have to apply now for a general licence to allow them to go over the whole country and, I understand, they can get that.

Or to any part of the country that they themselves choose.

The provisions in the Bill dealing with exempted areas are of no use to these people. Their business takes them all over the country. They will remove a person's furniture from Dublin to Donegal or vice-versa. These old firms are not in the position of other people who have stolen traffic from the railways. They always did this type of work. The Bill has my support so far as it deals with people who have been stealing traffic from the railways at uneconomic rates. I do not dispute the fact that on some occasions the railways do handle furniture removals, but the people I am speaking for have been solely engaged in furniture removal by road. As the Minister is not prepared to accept the amendment I do not propose putting it to a division. At the same time I think these people should get special consideration, and that some effort should be made to meet them.

Amendment, by leave, withdrawn.

Amendment 2 is complementary to amendment 5 and it might be desirable to discuss both together.

Cathaoirleach

Government amendments 2 and 5 will be taken together.

2. Section 2. To delete lines 13-17 inclusive, page 4, including the words inserted in line 16 by the Seanad in Committee.

5. New section. Before Section 3 to insert a new section as follows:—

3.—(1) Any person who claims that he is a person who carried on an existing merchandise road transport business, within the meaning of this section, or that he is the successor in title to a person who carried on an existing merchandise road transport business may, not later than one month after the date of the passing of this Act, apply to the Minister for the grant of a certificate under this section.

(2) Every application under this section shall be in writing and shall state fully the facts upon which the applicant claims that he or his predecessor in title is a person who carried on an existing merchandise road transport business.

(3) Where any application is made to the Minister under and in accordance with this section, the Minister shall, if, but only if, he is satisfied that the applicant or his predecessor in title is a person who carried on an existing merchandise road transport business, issue a certificate to the applicant accordingly, and any person to whom a certificate is issued under this section and no other person shall be an existing carrier for the purposes of this Act.

(4) A person shall for the purposes of this section be a person who carried on an existing merchandise road transport business, if he was carrying on such existing merchandise road transport business at the date of the passing of this Act and such business was during the whole of the period necessary to constitute it an existing merchandise road transport business carried on either by such person or successively by persons from or through whom such person claims to be entitled to such business and by such person.

(5) For the purposes of this section the following provisions shall have effect, that is to say:—

(a) each of the following shall be an existing merchandise road transport business, that is to say:

(i) any merchandise road transport business which was commenced after the 1st day of July, 1932, and before the 8th day of February, 1933, and was carried on in the manner required by this sub-section during the whole of the period beginning on the date of such commencement and ending on the date of the passing of this Act,

(ii) a merchandise road transport business which was carried on in the manner required by this sub-section during the whole of the period beginning on the 1st day of July, 1932, and ending on the date of the passing of this Act,

(b) a merchandise road transport business shall not be deemed to have been carried on in the manner required by this sub-section during any period unless during such period such business was,

(i) having regard to its nature, carried on with reasonable continuity, and

(ii) carried on with mechanically propelled vehicles duly licensed in Saorstát Eireann under Section 13 of the Finance Act, 1920, as amended by subsequent enactments.

On the Committee Stage there was a discussion concerning the definition of "existing carrier." An amendment was moved by Senator O'Farrell in that connection. It was desired that the definition should be restricted, first, only to include those who have been carrying on a road merchandise carrying business during the whole period set out in the Bill, and, secondly, that it should be clear that only bona fide carriers would be covered by it, while at the same time I expressed the view, which was assented to by a number of Senators, that it was desirable to protect those engaged in a seasonal trade. Since the discussion in Committee I have given this further consideration. Amendment 5 on the Order Paper meets, I think, all the points which were raised. It provides that a person who claims to be an existing carrier can apply to the Minister for a certificate to that effect. That will give the opportunity of examining the circumstances of the business. If it is clear that the business is a bona fide one and that the person is, in fact, engaged in the road merchandise carrying business he will get the certificate. The amendment requires that the business should have been carried on during the period from 1st July until the date of the passing of the Act or, alternatively, if it were started subsequent to the 1st July that it was carried on continuously from the date it commenced to the date of the passing of the Act. The amendment also requires that the business should have been carried on with “reasonable continuity” having regard to its nature. The insertion of the words “having regard to its nature” gives an opportunity for dealing with the cases of those who may have been engaged in a seasonal trade. If the persons engaged in that seasonal trade carried it on with “reasonable continuity” then they will become qualified for a certificate, and consequently to get a licence. It also includes the other provision, agreed to in Committee, that the vehicles should have been licensed in the Saorstát. The procedure, therefore, if this amendment is accepted will be that a person who is engaged in this business will have to apply to the Minister for a certificate to that effect.

The Minister, in awarding a certificate, will have to have regard to these facts: Was the business carried on during a period; was it carried on with reasonable continuity, having regard to its nature, and was the person engaged in the business in a bona fide manner? If so, the certificate is issued and the person who gets the certificate becomes entitled to a licence under the Bill. It is, shall I say, a somewhat elaborate procedure to deal with the point raised but it is necessary in order to ensure that all the safeguards that are thought to be necessary should be provided and to enable the Bill to be operated in a manner which would ensure that a licence is given to everybody entitled to it—to everybody continuously engaged in the business and refused to those not so engaged in business.

Would not the ordinary legal definition of common carrier cover pretty well what the Minister wants?

None of those at present engaged in the road merchandise carrying business are, I think, common carriers in the legal sense at all. The description of common carrier has now a very definite legal significance and I do not think that there is anybody engaged in the road business who would describe himself as such or who would accept that definition if it were applied to him. Even the railway company, for a certain class of merchandise, is not a common carrier and, therefore, I think we have to get some description of our own—those persons who were engaged in the business of carrying merchandise for reward with reasonable continuity over a period, having regard to the nature of the business.

A common carrier, as the Seanad will understand, is bound by some definite obligations. In the first place, he is, so far as we can discover, bound to particular routes. When this Bill was introduced, we had a section in it which set out that anybody who gets a licence for the carriage of merchandise would be a common carrier but we had to take that section out because, so far as we were able to discover and to get legal advice on the point, the common carrier status attaches only to routes. Heretofore, it was applied only to railway companies in certain cases or it could be applied to those who were running fixed services between two points along a defined route. We could not apply that definition obviously to merchandise services which went anywhere over an area and, consequently, we had to take the section out and to put in another which imposed on these people such of the common carrier's liabilities as we wanted to impose upon them.

So far as I can see, these amendments of the Minister meet very satisfactorily the point I raised in my amendments on Committee Stage and the point embodied in the two amendments in my name on this stage of the Bill. I think the Bill is much the better for the insertion of these amendments because, for the first time, it lays down a pretty clear definition for the information of the Minister as to what is an existing carrier. Previously, it was exceedingly vague and open to many serious abuses. The chances of abuses creeping in now are considerably reduced and, from every point of view, I think the Bill will be the better for these amendments. Consequently, I do not propose to move the two amendments in my name.

Amendment 2 agreed to.
Amendments 3 and 4, by leave, withdrawn.
Amendment No. 5 put and agreed to.

Cathaoirleach

Government amendment No. 6:—

Section 50, sub-section (2). Before the word "send" in line 14 to insert the words "at any time (other than during the period commencing at the expiration of one year after the date of the passing of this Act and ending at the expiration of three years after the said date)."

This amendment is an attempt to meet the point raised by Senator Douglas on Committee Stage. He referred to the fact that certain persons, who were engaged in the business of carrying passengers by road, were contending that, if they applied for a compulsory transfer of their licence to an authorised company and such compulsory transfer was refused, they should then be protected against compulsory transfer on the initiative of the authorised company at a later period. I indicated that there might be considerable difficulty in accepting that amendment on general grounds of policy. I mentioned that it was not impossible that, on the date of the passing of the Act, we might get a number of applications from persons operating omnibus services, say, in the City of Dublin for the compulsory transfer of their licences to the Tramway Company and it would be our policy to refuse the applications and to tell these people to talk it over with the Tramway Company and endeavour to get agreed terms of acquisition but that if, later, it was found that no agreement were possible or that difficulty had arisen, we might be inclined to go back on the applications and make orders for compulsory transfers. At the same time I felt, and I indicated here, that there was some force in the contention of these omnibus operators and a point to be met and the manner in which it is proposed to meet it is that set out in the amendment.

It provides that, after one year has elapsed from the date of the passing of the Act, there shall be what I shall call a close season for omnibus operators, that is, that during the following two years, the compulsory transfer provisions will not operate. In other words, any licensed operator on his own behalf or an authorised company in relation to such operator may apply for compulsory transfer of the business at any time for a period of 12 months after the passing of the Act, but, for the two years following, the compulsory transfer provisions will not operate at all, so that, if a person has applied for a licence or if such an application has been refused during the initial 12 months, that person will be secured against compulsory acquisition for three years. I think that is the farthest we can go to meet the point made by Senator Douglas on Committee Stage. It is, in any event, something which should be done because, undoubtedly, there would be hardship on these licensed operators if they had themselves applied to have their licence transferred and the application was refused, and if they did not know the date on which an application might arise from another party, which would be accepted. They are now secured against that possibility arising for this two year period. At the end of that period, we trust that the position will have so regularised itself that the question of the transfer of licences will not arise at all.

Will it secure them against an application being made by the railway company?

Yes, it secures them against an application by anybody for the two years' close season after the initial year has elapsed.

Amendment put and agreed to.
Amendment 7 not moved.

I move amendment 8:—

Section 53. To delete in line 47 the word "direct."

The House will remember that, on an amendment in a somewhat different form and over which I could not stand, I raised this point on Committee Stage. The position really narrows itself down to this, that the Minister has set out in a number of speeches what he conceives would be the kind of compensation which a company which is taken over would receive under this Act. A number of the companies which think that they may possibly be taken over have been advised that the phrase "direct consequence" would limit the compensation which they could obtain to a very much narrower point than was set out by the Minister. I am not a lawyer and I am not going to attempt to argue the legal side of it. I do not know if the Minister made a promise but I asked him if he would consider the point further before Report and, in particular, with regard to the amending of the word "direct" and, possibly, it would be better if I left the matter at that for the moment and heard the Minister's views instead of taking up the time of the House with a long argument for the amendment.

I gave this matter consideration and it seems to me that, if we admit the principle of compensation for indirect loss, we are opening the door much wider than we can possibly foresee in cases of this kind. The ordinary provision in all legislation dealing with compensation for various reasons is compensation for direct loss arising out of the terms of the legislation, and I think it would be very doubtful wisdom to depart from that principle on this occasion. I can visualise a variety of claims that might be made by some person whose licence has been transferred on the basis of indirect loss. A person might be operating a licensed omnibus service and, at the same time, running a garage business and he might be in a position to allege that the loss of the omnibus service had produced a certain loss in custom to the garage business, in so far as it was no longer the centre of activity in relation to the omnibus services it had been previously, and that he should be compensated for any falling off in the turnover of the garage business. Conceivably, also, a person might allege that an omnibus service conducted by him and which terminated outside the door of a drapery establishment he was also conducting in a particular town, was of special value to that drapery business and that the termination of the omnibus service would mean a loss of trade to the business and that, consequently, there was indirect loss also.

These seem to be rather imaginative cases, but, at the same time, once we admit indirect loss at all, we do not know where we are going. That has been our experience in relation to other Acts. In all these matters there are, of course, border line cases. One cannot be quite definite that a particular loss was a direct consequence or an indirect consequence of action taken under the authority of the statute but it is necessary to draw the line some where and, heretofore, the principle has always been to draw the line at the point of direct loss. If the loss is, in any sense, indirect, compensation is not payable. It makes, of course, the task of the arbitrator a lot simpler and is, I think, in essence, quite fair, because what the amount of indirect loss might be is very hard to determine. I think, however, that the Senator might have in mind the difficulty that would arise where a licensed operator claimed that, even though an omnibus service was running, at the moment at a loss and had always been running at a loss or at only a very small profit, his future prospects were better, and that the present loss or small profit might be turned into a large profit in the future and that, consequently, the termination of the service or the passage of it into other hands would mean a loss the value of which could not possibly be estimated to the former owner.

I do not anticipate that many such cases will arise but, if they do arise, I think we have to take the attitude that it is impossible to foresee the future and that the estimates of future profit which might be made must, in any event, be so speculative as to be of no value. Conceivably, services in respect of which that argument could be advanced could become entirely unprofitable in the future, even though a person, examining its prospects at the time, might be of opinion that future profit was probable, because of some development taking place in the area or some change in the public taste or something of that kind which would render the service entirely unnecessary and unremunerative. In these circumstances, I think it would be most undesirable, because of all the uncertainty that would be created, that we should delete this word "direct" or open the way for the making of claims for indirect loss. I think that it is much more desirable that we should be clear and precise in our instructions to the arbitrator. I do not think that we will, in fact, do any injustice if those whose licences are transferred are compensated for the direct loss they suffer through the transfer of the licences. I may say that any fears entertained on this head are probably unfounded, because it will certainly be the policy behind the operation of the Act to require that, wherever possible, the transfer of licences take place by voluntary arrangement. In such circumstances, a person selling a licence could advance any argument or make any points he wished to the other party. The question of compulsory transfer and recourse to the arbitrator will only arise where public policy makes such compulsory acquisition necessary and application for that purpose is received. I have no reason to think that, except in a few isolated cases, we will be unable to get the general policy of the Act carried into effect by voluntary arrangement because the existence of these powers will, in the last resort, be a very direct inducement to all parties to effect voluntary arrangements, in the first instance, wherever possible. I think that the Senator would be unwise to press his amendment because, like myself, he cannot possibly foresee the nature of the claims likely to arise. We might find that we had, in fact, taken action which would impose considerable injustice upon the authorised companies to the undue benefit of other parties, instead of removing the possibility of injustice to the present independent operators. I think that we avoid the possibility of injustice in the definition here. It may be that some persons will feel that the future prospects of the services should be taken into account but, under any circumstances, and particularly in relation to a business of this kind, future prospects must be so uncertain that it would be almost impossible to take them into account or assess their value in cash.

There is eightpence of a tariff on petrol at present. If that tariff were removed, some of these garages which are hovering between loss and profit might be able to make a profit. Would the arbitrator be entitled to take into account the possibility of some Government in the future taking that eightpence off?

Cathaoirleach

That question is too problematical for me to answer.

Under this section, the owners of the services transferred will, I think, get the ordinary, legal compensation. They will get nothing extra on account of compulsory acquisition. Up to the present, when a man's property was being taken from him compulsorily, it was considered right to use the words "full compensation." In one of the Railway Acts there was a specific percentage added to the price of the land or property taken so as to compensate in some degree for the exercise of compulsion. Here, the owners of the services transferred will, under the section, get the ordinary, legal measure of compensation. They will get that compensation by virtue of the words "and the measure of such compensation shall be the pecuniary loss and expense, if any, which such first-mentioned person sustains or incurs or will sustain or incur by reason of such Order and which is the direct consequence of such Order." When I read that section, I thought that the word "direct" had some effect in limiting or cutting down the amount of compensation to which a person would be entitled. Speaking for myself, I should rather it was not in the section but, on looking into some cases to-day, I found that, used in a context such as this, the word "direct" has really no meaning at all, because the law will allow the legal measure of compensation which would follow from the enforcement of the order. That same legal measure would be given if the word "consequence" were used without the word "direct."

In the case of arbitration, would there be any legal assessor?

There will be many cases of doubt and difficulty in the administration of this Act and the probability is that the opinion of the court will be required. I think that there is an amendment down to provide for that.

That was objected to by the Minister the last time.

I do not think that the jurisdiction of the court is ousted by this Bill. Upon the construction which has been put upon similar phrases in the courts in Great Britain and, I think, in this country, the amount of compensation is not, in fact, increased or limited by the use of the word "direct." The measure of compensation will be the legal measure of compensation. Matters which are not the reasonable and necessary consequence of the act done will not be taken into account. The word "direct" has now been substituted for the more cumbrous locution that obtained in other times. This word serves as a substitute for "damages necessarily or reasonably sustained." It seems to be a rather useful word. The Minister thinks it is necessary to have it in the section so as to warn off excessive claims. It may warn off excessive claims but I do not think that it will alter the legal measure of compensation. If Senator Douglas is of the same opinion, perhaps he will not press this amendment. I should not like it to be thought by the owners of services to be transferred that the word "direct" as used in this section, limits their rights in any way. That being so, it is really immaterial whether the word is in or out.

I do not suppose that there is very much use in pressing this amendment in view of the attitude taken up by the Minister, though he has not altogether convinced me. I am sorry he is not here at the moment because I should like to draw his attention to the attitude taken up by himself when in opposition on the same point in connection with the Town Tenants Bill. He moved then to have the word "direct" omitted because, he said, it would narrow down the section, and it was possible it might be so interpreted that the compensation decided upon in cases which would come before the court would be less than the Minister appeared to think. That is exactly the position in which I am at present. But Deputy Lemass was sufficiently eloquent to persuade the then Minister that he was right, with the result that the Minister at a later stage moved to omit the word "direct." I have not the eloquence of the present Minister and I am not able to convince him. It is a point in which I am not personally much interested. My only concern is to see that there will not be any feeling of bad faith in connection with this matter. There is a very general fear, based on certain legal arguments, that the word "direct" will prevent persons getting the measure of compensation which the Minister has set out and which has been generally accepted as being on a fair basis. I am sorry the Minister was not here when Senator Comyn was speaking. Having listened to his speech, I do not think that I know very much more than I did because, at one stage, he said the word "direct" meant nothing, and at another stage, he said he would be better pleased if it were not there.

Personally, I should be better pleased if it were not there.

The Senator went on to say that compensation would be determined according to the legal standard and that nothing in this Act would operate to prevent the right of the court ultimately deciding this point. If that is true, there is no great reason for uneasiness on the part of the people concerned. I am not at all clear, however, that that is the position, and I doubt if there is anything in the nature of an appeal permissible from the decision of the arbitrator. In view of the attitude of the Minister, I am not going to press this amendment.

There is, of course, no appeal from the amount of compensation assessed by the arbitrator, but anybody can go to the courts for an interpretation of the phrases used.

Amendment, by leave, withdrawn.

Cathaoirleach

Amendment 9— Government amendment:—

Section 56 (being the new section inserted by the Seanad in Committee). To delete sub-section (2) and to substitute the following new sub-section therefor:—

(2) Where

(a) a transfer order or a reduction order in relation to a merchandise (existing carrier's) licence is made on the application of an authorised (merchandise carrying) company, or a transfer order in relation to a passenger licence is made on the application of an authorised (passenger carrying) company, and

(b) an arbitrator in arbitration before him for fixing the compensation payable under this Part of this Act in respect of such order to the licensee under such licence does not award compensation

such arbitrator may, if he so thinks fit, award to such licensee such sum as he thinks reasonable to cover the expenses of such licensee in relation to such arbitration, and any sum so awarded shall be payable by the company upon whose application such order was made.

The sole purpose of this amendment is to provide, where a person applies for the transfer of his licence to an authorised company and the arbitrator determines that no compensation should, in fact, be paid as no pecuniary loss is involved, that, although the costs may be given at the discretion of the arbitrator, the authorised company should pay the fee of the arbitrator. The main reason why we think it necessary to make this provision is that there is much more chance, under these circumstances, of getting the costs from the authorised company than there would be of getting them from the person who lost his licence and whose service was of so little value that there was no compensation to be paid in respect of it. We think that the arbitrator should get his fee in any case.

Amendment agreed to.
Amendment 10 not moved.

Cathaoirleach

Government amendment 11:—

Section 58. To delete in lines 20-21 the words "by the person liable under this Part of this Act to pay such compensation" and to substitute therefor the words "by, in case such arbitrator awards compensation, the person liable under this Part of this Act to pay such compensation or, in case such arbitrator does not award compensation, the person who, if compensation had been awarded in such arbitration, would have been liable under this Part of this Act to pay such compensation."

This is really consequential on amendment 9.

Amendment agreed to.
Amendment 12 not moved.
Final Stage ordered for Wednesday, 7th June.