EXEMPTION QUESTION .
Did The M.T. Co. Violate Its Agreement With The City?
Going Over All The Facts Again.
It will be remembered that shortly after the inauguration of the new council, a letter was sent to it by Mr. B.M. Britton, Q.C., acting on behalf of the Montreal Transportation Company. This letter stated that the Company did not ask for exemption, but that overtures were made to it by the city, and these overtures led to the passing of the bylaw, and the making of an agreement which the company had tried to live to. In view of all the facts Mr. Britton desired to know what the city wanted, the company desiring to avoid a lawsuit if a reasonable settlement could be made. If the city wanted the penalty of $2,000, some $500 other damages and the cancelling of the agreement, nothing further needed to be said because the company would resist the claim. If the company did not want it they should say so.
A special committee was appointed to consider the matter. It was moved by Ald. McKelvey, and consisted of himself, as chairman, Alds. Harty, Bermingham, Clements, J. Wilson, Redden and Gildersleeve. It met some weeks ago but did nothing in the absence of Mr. Britton. Later on nothing was done in the absence of Ald. McKelvey. Last night the adjourned meeting occurred. Alds. Harty and Bermingham were absent, but the majority decided to proceed and take the evidence. Mr. R. Meek, of the Whig, took the evidence in shorthand for the committee and the city.
Making A Beginning.
In opening Ald. McKelvey said the committee was prepared to accept any evidence which Mr. Britton was prepared to present in support or in rebuttal of the evidence, submitted to the committee of 1884.
Mr. Britton said he was prepared to show that the evidence laid before the last committee was wrongly interpreted. He was prepared to have it given anew if desirable.
The chairman was agreeable.
Mr. Clements said he understood that Mr. Lewis - whose statements were regarded as conclusive - was somewhat mistaken in his views, and he did not think the council was anxious to go into a lawsuit if the company had not violated its agreement.
Capt. Lewis - Mr. Lewis was not mistaken, but his evidence has been miscontrued.
Mr. Agnew did not think the committee should be charged with misconstruing the captain's evidence.
Case Standing At Issue.
Mr. Britton said that since the communication had been sent to the council the case, as the lawyers would say, stood at issue. A statement of claim had been put in, also a statement of defence, and anything done before the committee should not prejudice the rights of defendant as they will be contended for in court. The company's contentions were these: (1) That the business referred to in the agreement does not refer to at all to the repairing of barges, but to the transportation of grain, the company having its head office for Ontario here; (2) if it does refer to the repairing of barges it only refers to such work as the company can do within themselves; the company is not bound to give it to anybody else in town. That was the legal construction to be put upon the agreement. But as he said in his letter the Company were anxious to do anything that was fair in order to satisfy the council and committee and avoid a lawsuit.
Mr. McKelvey would not like the city to have a lawsuit and lose it.
Mr. Agnew said that whatever the committee did would not, of course, prejudice the city's case.
Mr. Britton - Certainly not.
Getting At The Evidence.
The evidence taken by the committee of 1884 could not be found, and the committee had to fall back upon a newspaper report. The whole issue hinged upon the question, Could the work done upon the M.T. Co.'s boats at Portsmouth be done in the city?
Capt. Gaskin was called, and asked to give a statement of the whole circumstances. He said that when the committee of 1884 undertook to deal with the case he had just arrived from the west and had not time to prepare himself with facts and figures. In connection with the alleged violation of the agreement four charges were preferred. The first had reference to work done upon the barge Toledo. It was hauled out at Portsmouth on the 19th Dec., 1883. Early in the year he had urged the rebuilding of the barge because Mr. Taylor, Marine Inspector, said that without repairs it was not fit to transport grain any more. The company demurred about her rebuilding because they thought the other work would give them all they could do at their own place. Previous to the Dec. 18th, however, he was informed that he could have the barge rebuilt if he thought better. The barge lay in the slip at the foot of Queen street, and he knew for a fact that the rebuilding could not be done on Lewis' dock, especially during the winter season. He spoke to Mr. Powers, (Marine Railway), and found that he had the steamer Rothesay on the ways. That prevented the work being done in Kingston. Soon after Mr. Peter Mitchell, of the Portsmouth ways, was seen and the matter was referred to him. A bargain on a second visit was made, and to this effect: Mitchell was to get a certain sum of money for hauling out the barge and allowing her to remain on the ways all winter; he was to be paid himself so much per day while the work was going on; he was to be paid for all men employed a commission of 25 cents per day each; and all the materials used in the rebuilding to be found by the company. All the men were engaged by the witness and citizens were preferred; in fact few of those who worked upon the barge belonged to Portsmouth. As soon as possible, too, it was launched and brought to the city to be finished.
Question Of All Questions.
Ald. McKelvey - Was there no possibility of having the work done here?
Capt. Gaskin - None. The barge Cleveland, the tug Frank Perew and the tug D.G. Thompson were on the company's own ways, and all the space at their yard was occupied. The company would certainly not be foolish enough to go to Portsmouth and pay Mr. Mitchell a commission of 25 cents per man per day if the work he superintended upon his ways could be done in the city and at their own yards.
Reaching Charge Number Two.
Ald. McKelvey - What was the next barge?
Capt. Gaskin said the Lancaster.
Ald. McKelvey - Did you see if Capt. Lewis could do the work upon the Toledo?
Capt. Gaskin - It was an utter impossibility for him to do the work upon this barge upon his dock in the winter time. The witness said he could now explain matters which to him appeared a little hazy when before the last committee, because then he had not time to consult his books and papers. The Lancaster was hauled out at Portsmouth on the 3rd Dec., 1884, and launched on the 11th Dec., 1884. On 21st Nov. he ascertained if the work could be done in Kingston. He wrote to Mr. Power about it, but was informed that the ways were occupied by the tug McArthur, and Mr. Leslie (Lesslie ?) would not give way to the M.T. Co. (Mr. Leslie's letter was read to this effect.) The Lancaster had to get a new bottom and he knew for a fact that this new bottom could not be put in her on Lewis' dock.
Ald. Wilson - Was the work done at Portsmouth?
Capt. Gaskin - It was. The bottom and the bilge streaks, which she wanted, could only be given her at Portsmouth.
Ald. McKelvey - Do I understand you to say that the repairs upon the Lancaster could not be done upon Capt. Lewis' dock?
Capt. Gaskin - Yes.
Ald. Wilson - And why not?
Capt. Gaskin - Because the dock was not wide enough to permit of planking being put around the bow and stern. There would only be a few feet between the side of the dock and the barge, and the plank would be sticking out 20 or 25 feet.
Ald. Wilson - How much space would there be between the barge and the dock?
Capt. Gaskin - Oh, 3 or 4 feet.
Ald. Wilson - And you'd actually require 15 ft. or so?
Capt. Lewis - The great trouble would be the forming of ice which could not be avoided with a floating dock.
Capt. Gaskin - The Lewis dock would be all right for caulking, but not for repairing when plank had to be bent.
Mr. Gildersleeve, who only now arrived, asked and was given to understand what had been done by the committee. He then asked for the grounds upon which the exemption had been forfeited and the penalty incurred: what was the clause in the by-law which the company violated?
Mr. Agnew - That is something which should be considered in executive session.
Ald. Gildersleeve would be satisfied if the Solicitor was.
Mr. Britton explained the position and contentions of the company. The evidence taken by the committee of 1884 was again referred to, and the remark made by the chairman that he heard it was in the possession of Ald. Bermingham, and that he claimed it as his personal property. Ald. Gildersleeve said if the notes were taken by Ald. Bermingham privately they were his, but if taken in connection with the case they should be in the possession of the city. Mr. Agnew said he thought the evidence was public property.
Ald. Gildersleeve - Is the evidence now being taken officially?
Ald. McKelvey - It is, and by Mr. Meek.
Ald. Gildersleeve - Upon oath?
Ald. McKelvey - No, just as before.
Capt. Gaskin and Ald. Gildersleeve now had a discussion in regard to the work on the Lancaster, and Gaskin repeated that it could not be performed on Lewis' dock.
(Mr. Mitchell's agreement, already outlined, was read. Mr. Britton also read the letter of Mr. Leslie, according to which he refused to have the tug McArthur make way for the Active.)
Capt. Gaskin, continuing, said that on the 23rd or 24th of November Mr. Power could not do work for the company, and when he refused one job he supposed he would refuse another. The Wheat Bin was the third case. She was hauled out on December 13th, 1884, at Portsmouth, and on the ways which the Lancaster had occupied. Before going to Portsmouth, however, the inside of the barge had been repaired; she had been given a new floor, a new ceiling, a new frame and new kelson, at a cost of $1,200. Witness intended to do more but the advance of the season made him push matters. After being launched she leaked, and he was afraid she would sink. Capt. Lewis
Could Not Do The Work
required on her for these reasons: (1) that the ice would interfere; (2) that the planking for the outside could not be bent on his dock; (3) that the dock was not in operation then. There was no help for it but to go to Portsmouth and put a big gang upon her.
Ald. Gildersleeve - How big a gang?
Ald. Gaskin - As many as could work upon her. The Wheat Bin was launched on Dec. 19th.
Ald. McKelvey - What was the nature of the work upon her?
Capt. Gaskin - Something similar to that put upon the barge Lancaster. Then the Active was hauled out, on Dec. 31st. Capt. Lewis would not and could not handle tugs. Their heft is in one place and they are apt to strain and make a floating dock leak badly.
Ald. McKelvey - Has Capt. Lewis done any docking for you?
Capt. Gaskin said he had, and he (G.) had tried to make arrangements by which more of it could be done. He offered Capt. Lewis 7 cents per ton for work and it had been declined. During 1883, when Mr. Macphie was outside manager of the M.T. Co. at Montreal he tried to have all the repairs possible done there, because they cost less than in Kingston. Witness sought to get dockage rates in Kingston as low as they were in Montreal, and as an inducement to have the repairs done here.
Capt. Lewis Makes A Statement
Capt. W. Lewis said that in Oct. Capt. Gaskin sought to arrange with him for the hauling out of four barges, for caulking and bottoming. He wanted tariff rates, 10 cents per ton, and Capt. Gaskin would not give more than 5 cents per ton. The names of no barges were mentioned. Witness heard no more about them until December, when Ald. Eilbeck entered his shop and asked him if he heard the news. He enquired, What news? Eilbeck said the M.T. Co. were sending their barges to Portsmouth for repairs. Witness said Gaskin had offered him four barges, that they could not agree upon terms, and that the latter had a perfect right to take them where he liked. Next he heard of the matter in the council, where Ald. Eilbeck used his name pretty freely. Witness knew nothing about the company doing work at Portsmouth until he saw it mentioned in the Whig. He was asked to appear before the committee and did so. He supposed the barges which went out of Kingston had been those offered to him. He was asked by the committee if he could do the work. He said he could. After the committee meeting he went to Portsmouth and saw that the work upon the Lancaster - he did not remember the Wheat Bin - he could not do. Besides he commenced to take the machinery down on the morning of the 2nd or 3rd of Dec.
(The letter Capt. Lewis sent to Eilbeck was to the effect that the work done for the M.T. Co. at Portsmouth could have been done at his dock at tariff rates.)
Capt. Lewis said he had in his mind's eye and was always talking about the four barges which he understood to require only some caulking and bottoming.
Ald. McKelvey - Could you have hauled out the Active?
Capt. Lewis - I would not if I could.
Peter Mitchell Tells His Story.
Mr. P. Mitchell, of the Portsmouth dock, referred briefly to his arrangement with Capt. Gaskin in the fall of 1883 to rebuild the Toledo. He got the job because he understood the barge could not be hauled out anywhere else. Gaskin hired the men, sent them and the materials from the city, and paid him a salary and a commission. The work done was such as Capt. Gaskin had described. The rebuilding of the Lancaster was also described by him as Capt. Gaskin had done.
Mr. Britton - Could the work be done on these barges at Lewis' dock?
Mr. Mitchell - No sir; undoubtedly no.
Ald. McKelvey - Are you sure of that?
Mr. Mitchell - It could not be done there.
Capt. Lewis - I think I said so.
Mr. Mitchell referred to the work done upon the barge Wheat Bin, in the launching of which the carriage ran off and cold weather following forced a delay in the work. The Active he pulled out subsequently, and because Capt. Gaskin said he could not have her pulled out anywhere else. When opened up it was found that a good deal had to be done to her.
Ald. McKelvey - Are we to understand that the work on the Toledo, Lancaster, Wheat Bin and Active could not be done on Lewis' dock?
Mr. Mitchell - Yes sir; I am satisfied of that.
Ald. Gildersleeve - Did the Lancaster's repairers live in the city while the work went on?
Mr. Mitchell - Yes sir; excepting the few Portsmouth hands.
Ship carpenters, who could substantiate Mitchell's statement, were present but they were not called.
Capt. S. Fraser's Enlightenment.
Capt. Fraser, who brought the Empire dock to the city, was asked if the work done upon the barges at Portsmouth could have been done on it. He did not think so. The barge had to be put close to one side, while on the other side there was a space of about four feet. This was not sufficient for planking on the bow. He said the barges had to be put to one side of the dock to balance it; if the boat was in the centre of it it would list and nothing could be done.
Mr. Britton - Could the Active or any other steamer like her be repaired on the Empire dock?
Capt. Fraser - The experiment would be dangerous.
Mr. Britton - Why?
Capt. Fraser - Because tugs have a great deal of dead rise, and if the Active listed on the dock she would go through it. Tugs strain floating docks and cause them to leak.
Statement of Mr. Henderson.
Mr. Britton - Mr. P.R. Henderson, inside manager of the M.T. Co., can show that they acted in good faith and did everything on the square.
Mr. Henderson thought it was hardly necessary for him to say anything. Capt. Gaskin, however, deserved great credit for having what work he could done in Kingston. He and the captain had done all they could for the city, and all the company cared for was this - that the cost of the work should not be more than it would cost at Montreal. Both were anxious to fulfill as far as possible the agreement.
Mr. Mitchell added that all the money spent in Portsmouth came back to the city.
Capt. Gaskin showed that the company paid $20 for the dockage of each 20,000 bushel barge at Montreal. Capt. Lewis charged him $39.
The Committee Deliberating.
The members of the M.T. Co. and Mr. Britton withdrew, and the committee deliberated. It was agreed that they could not report to the council on Monday. Their work was to be done well and thoroughly. Then other witnesses were talked of, and as the report of another committee had been attacked it was decided to summon ex-Ald. Eilbeck, and let him defend the course of himself and his colleagues. Mr. Power, whose letter forms the strongest basis of the suit against the committee, will also be present, and the old evidence will be produced. Just before adjourning the solicitor said the company were not relieved of liability upon showing that they could not get their work done in the city. They entered into an agreement which allowed of no conditions, and in law it might be argued that the company should have the facilities to do all they had undertaken when granted the exemption. The chairman confessed that he had not thought of that phase of the case before, neither had the others, and they adjourned still thinking and talking of it. The committee will meet and in all probability finish the case on Tuesday evening next.
p.2 The Death Of A Citizen - Robert Nancollis, 49, worked for Calvin & Breck, and Collinsby Rafting Co.