The Gazette 1976

J U NE/J U LY

GAZETTE

1976

(ii) where the guest (or someone on his behalf) wished to offer the property for deposit with the proprietor but, through the default of the proprietor or his servant, was unable to do so. Section 7(2) of the 1963 Act provides that the limitation of liability by notice does not apply to a motor vehicle. Thus, a hotel proprietor is not permitted to limit his liability (i n the manner described above) under Section 6 for damage to, or loss or destruction of, a guest's motor vehicle. The effect of section 7 was explained in the Senate as follows: "The question was raised in the Dail whether the new amount of £100 (in place of £30 under the Inn- keepers Liability Act, 1863), is appropriate to the changing circumstances of modern times. There is no question but that the value of money has fallen by more than that in the past hundred years, but at the same time the principle, I think, is correct and the principle is maintained in the Bill. The exact amount is of secon- dary importance. It is only the liability of the hotel proprietor as insurer which is limited to one hundred pounds. It is quite clear that Section 7, therefore, means that only his liability as insurer in the strict sense of the term is limited to one hundred pounds by the Section." 19 Rights of the hotel proprietor In return for the onerous liabilities he must bear a hotel proprietor is given two remedies under the 1963 Act. Section 8 provides that in certain circumstances a hotel proprietor has a lien over a guest's property and a right of sale of such property. 1. Lien A hotel proprietor has a lien upon property for a debt due by a guest for sleeping accommodation, food or drink until the debt is paid. There are three points in relation to the hotel proprietor's lien which should be noted in particular. First, the lien extends to property which does not belong to the guest. 20 Thus, goods on hire or hire- purchase which are brought to the hotel by the guest are covered by the lien. There is authority in England for the view that even stolen property may be claimed by a hotel proprietor under h's right of lien. 21 Secondly, it is immaterial whether the guest is an "overnight guest" or not. The right of lien still applies. A hotel proprietor can exercise his lien over the pro- perty of a guest who for example, merely has a meal at the hotel. However, the hotel proprietor would not be strictly liable for damage to the property of such a guest under Section 6. Thirdly, it is expressly stated in Section 2(2) of the English Hotel Proprietors Act 1956 that there is no right of lien on motor vehicles or any property left in such motor vehicles. There is no similar provision in the Irish Act and therefore it can be presumed that here the lien extends to motor vehicles and the contents therein. The scope of the hotel proprietor's lien in Ireland is wide indeed. 2. The statutory, power of sale If the debt remains unsatisfied for at least six weeks the hotel proprietor may sell by public auction any property to which his lien extends. He may deduct the amount of the debt as well as the costs and expenses of sale from the proceeds of sale and then he must pay the surplus to the guest. In England under Section 1 of the Innkeepers Act

1878, the sale by public auction must be advertised, at least one month before it takes place, in one London and one country newspaper. There is no requirement in the Irish Act that the sale must be advertised. A purchaser of goods from a hotel proprietor who exercises his right of sale at a public auction gets a good title. Section 21 (2)(b) of the Sale of Goods Act 1893 ensures the validity of this "statutory power of sale" and the rule nemo dat quod non habet does not Even if an Irish Court on considering the point follows Marsh v. Police Commissioner and McGee 2i and holds that the hotel proprietor's lien upon property brought to the hotel by a guest extends to stolen pro- perty, it would seem that the true owner would not thereby be prevented from suing in conversion the pur- chaser of the stolen goods which were sold by the hotel proprietor under the power of sale in the 1963 Act. According to Crossley Vaines there seems to be no reason why the power conferred by the Innkeepers Act 1878 (similar to the power in the 1963 Act) should differ from similar enactments and cure inherent de- fects in title. 22 It is evident that much preparation went into the drafting of the Hotel Proprietors Bill 1962. The Act itself is the result of quite a lengthy debate in the Houses of the Oireachtas for such a short piece of legislation. The Legislature were "trying to preserve a proper balance between the rights of the hotel guest and the obligations to be placed on hotel pro- prietors". 23 It is arguable whether they have succeeded in arriving at a fair compromise. However, it cannot be denied that the Act is a fine example of legislative drafting in simple terms. Jur. (1957) 5-6, at p. 5. 2. No. 7 of 1963. The Act came into operation on 1st May 1963. 3. V. T. H. Delany, The Hotel Proprietors Act 1963 (1962- 63), 28-29, Ir. Jur. 19-20, at p. 19. 4. T e x t: European Treaty Series, no. 41; 2 European Con- ventions and Agreements (1961-1970), 75-82. Entered into force on 15th February 1967. 5. Hotel Proprietors Act, 1963, Section 13. The repealed legislation is 14 and 15 Chas. 2(Ir.) c. 3.; Innkeepers' Lia- bility Act, 1863; Innkeepers Act, 1878. 6. Then Mr. Charles Haughey. 7. C. Haughey, Minister for Justice, 56 Seanad Debates, c.290 (20th February 1963). 8. Ibid. 9. Hotel Proprietors Act 1963, Section 12. 10. C. Haughey, 198 Dail Debates, c. 842 (6th December 1962). 11. The original authority for this principle is Calye's Case (1584) 8 Co. Rep. 32a. where it was stated that "if the guest be beaten in the inn, the innkeeper shall not answer for it" 12. Bryan M. E. McMahon, Reform of Law of Occupiers' Liability in Ireland incorporating a study entitled: Occupiers' Liability in Ireland. Survey and Proposals for Reform (Dublin The Stationery Office), p. 28. 13. C. Haughey, 56 Seanad Debates, c. 291 (20th February 1963). 14. Hotel Proprietors Act, 1963, Section 6(5) 18. It is provided in Section 7(l)(b) of the Hotel Proprietors Act, 1963, that the hotel proprietor or his servant may require that the property deposited for safe custody be put in a container fastened or sealed by the depositor. 19. Professor O'Brien, 56 Seanad Debates c 298 (20th Feb- ruary 1963). ' v 20. See Hotel Proprietors Act 1963 Section 8(1) 21. Ma rsh v. Police Commissioner and McGee (1944) 9 All E.R. 39. \ / - 22. Crossley Vaines, Personal Property, 5th edition, p. 207. 23. C. Haughey, 56 Seanad Debates, c. 359 (6th March 1963). 83 1. Anon., Innkeepers Liability: The Need for Reform, 23Ir. 15. Ibid., Section 1(2). 16. Ibid., Section 11. 17. Ibid., Section 9.