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(2) That the "Richmond," on the said 24th August, was not a vessel
lying within the district of the said Port Sanitary Authority within the
meaning of Article III. of an Order of the Local Government Board dated
25th March, 1892, and made under Section 112 of the said Public Health
(London) Act, 1891.
(3) That if, by reason of such Order of the Local Government Board,
the said Section 24 of the Public Health (London) Act, 1891, was
applicable to a vessel used as the said steam tug was being used on the
said 24th August, 1903, then the proceedings under such section should
have been taken against the master of the said vessel, and not against the
Appellant.
(4) That proceedings in respect to smoke from vessels plying on the
River Thames can only be taken under the provisions of Section 23 of the
Public Health (London) Act, 1891.
The case was adjourned until the 9th October last, when the Lord Mayor
convicted the defendant and fined him One Pound and One Guinea costs.
From this conviction he appealed, the Lord Mayor stating a case for the
decision of the High Court.
The Appellant further contended that the funnel of a steam tug was not a
chimney within the meaning of Section 24 ; and further, that he required the
Magistrate to specify the works to be executed to prevent any recurrence of
the nuisance, which the Lord Mayor was of opinion he was not bound so
to specify. Judgment in the appeal was given while this Report was in the
press, and is appended.*
*The Lord Chief Justice, in giving judgment,said that the Magistrate's decision was right,though
the point had admitted of argument. On first reading the section one might think that it was intended
to apply to chimneys on land. But when one looked at the object of the legislation and at certain
expressions in Section 24 of the Act, he thought that any such construction would be too narrow.
So far as the first part of the section was concerned, it was essentially a " black smoke " section.
Section 23 (3) dealt specifically with steam engines and furnaces on steamers, and provided that
they should be constructed so as to consume the smoke. These sections showed that there were
special provisions with regard to the construction of furnaces and engines on steamers, and the
non-negligent user of them. But it was to be observed that there was a corresponding provision
in regard to furnaces on land, namely, Section 23 (1), and there was a corresponding provision in
regard to non-negligent user. Section 24 was a " nuisance " section, and it was not without
importance that it immediately followed Section 23. If the words could be fairly applied to a
chimney on board a steamship, there was no reason why they should not be so applied ; for unless
the words " any chimney (not being the chimney of a private dwelling-house) " showed that a
steamship could not be included, the object of the legislation would be avoided by not so applying them.
There might be cases where the black smoke would come from a chimney which would, in ordinary
language, be called a funnel. But he did not think that any argument could be based on the fact
that the word " chimney " was used, for " funnel " was only the technical name for a particular
kind of chimney. He did not see why the emission of black smoke from the funnels of vessels on
the Thames should not be prevented as well as from chimneys on land. Section 24 was not
sufficient to enable the Court to hold that the funnel of a steamship was not a chimney. As to
the other point, the order was not bad because it did not specify any works to be executed
(although the defendant asked that they should be specified), for there were no works that could
be executed.
Mr. Justice Kennedy, in agreeing, said that the question was whether Section 24 (b) included the
funnel of a tug. Usually" chimney " was a word applicable to the passage through which smoke
passed from a fire in a building, and technically it was not a proper term to describe those passages
on a steamboat which were used to convey the smoke from the furnaces to the outer air. But he
saw nothing to prevent " chimney " being used in what he might call its natural sense, namely, a
passage by which smoke from a fire was carried away upwards. Otherwise there would be no
" black smoke " section with regard to a description of thing that might send out smoke in
quantities enough to create a nuisance.
Mr. Justice Channell delivered judgment to the same effect.
The appeal was accordingly dismissed.