4160.
K
PUBLIC RECORD OFFICE
|| 2 3]
سلسليبيا
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
MY LORD,
No. 5.
(SOUTH AFRICA.)
LAW OFFICERS TO FOREIGN OFFICE.
Royal Courts of Justice,
January 15, 1900.
We were honoured with your Lordship's commands signified in Mr. Bertie's letter of the 8th instant stating that he was directed by your Lordship to transmit to us the papers noted on the accompanying list relating to consignments of railway material landed at East London, and originally destined for the Netherlands South African, and for the Ermelo lines, both of which were in the South African Republic.
That the
That it was believed that the Ermelo line was in process of construction. Netherlands Railway ran from Komatipoort, the Junction with the line from Delagoa Bay, to Pretoria and Johannesburg.
That the circumstances in which our advice was sought were briefly as follows :- That soon after hostilities had been begun against Her Majesty by the South African Republic and the Orange Free State, the authorities of the Cape Colony detained goods found within their jurisdiction and destined for private persons or Corporations in the enemy's territory.
That a Note of the 6th November last (Document A), from Baron van Goltstein, the Netherlands Minister at this Court, called attention to the material belonging to the Netherlands South African, and to the Ermelo, Railway Companies which was to be carried by the British ship Zulu " from Amsterdan to Delagoa Bay. That he understood that British ships had been prohibited from landing goods for South Africa anywhere except at British Ports; but as French and German vessels were free to land their cargoes any where he trusted that the "Zulu" would be allowed to land the railway material at Delagoa Bay as originally intended,
That your Lordship's reply (November 9th, Document B), to this communication was to the effect that intercourse between Her Majesty's dominions and the enemy's territory was unlawful during the war.
That Baron van Goltstein then pointed out (November 11th, Document C), that there was no question of intercourse with the enemy's territory, and that the Netherlands Company was ready to consign its material to the British Consul at Lorenzo Marques to be held by him for such period as Her Britannic Majesty's Government should object to it being sent on to the Transvaal.
That this arrangement was accepted by Her Majesty's Government under certain additional conditions by the Note of the 25th of November last (Document D); that the same Note stated that the arrangement might also be extended to the material of the Ermelo Company if that Company so wished.
That the necessary instructions were at once telegraphed to the High Commissioner and to Her Majesty's Consul at Lorenzo Marques, but only so far as regarded the property of the Netherlands Company,
That Baron van Goltstein's Note of the 2nd December (Document E), stated that the Ermelo Company likewise accepted the arrangement.
That Her Majesty's Government shortly afterwards learned (telegram in Colonial Office letter of December 4th, Document F), that the Netherlands Railway had been taken over by the Government of the South African Republic as far back as the 29th of September; that the line was therefore practically a Government line at the time the original application was made to Her Majesty's Government by Baron van Goltstein's Note of the 6th November.
That Baron van Goltstein was then informed (Note to him of December 13th, Docu- ment (), that the taking over of the Netherlands Railway by the enemy's Government materially affected the position of the question.
That there had meanwhile been delay in informing the authorities in the Cape Colony that the arrangement in the Note of the 25th of November to Baron van Goltstein applied also to the material shipped for the Ermelo Company, that when the "Zulu" put into East London the authorities treated the Ermelo Company's material as they were then treating private property destined for the enemy's territory when found in British ships in British waters, ie, they ordered it to be taken out of the ship and detained.
1860-27-2/1900 Wt 439 D & S 5
Page 720Page 721
PUBLIC RECORD OFFICE
Reference :-
I ༢「། ། :། mmimmim C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
That the material for the Netherlands line and that for the Ermelo Railway were stowed with a view of being landed together at Lorenzo Marques; that it was therefore impossible to remove the Ermelo material and leave that for the Netherlands line; and that the "Agents" preferred that the consignments for the Netherlands Railway should also be landed at East London. (See communication of the 13th December from Colonial Office, Document H).
That it might at this point be noted that the owner of the Zulu” had stated verbally at the Foreign Office that it was the ship's agent who had consented to both cou- signments being landed, and that he did so to prevent the detention of the ship.
That in those circumstances it was proposed to Baron van Goltstein (Note of December 14th Document I), that the goods, as at Lorenzo Marques or at East London, should remain at the latter port, unless the owners they must in any case be detained either were disposed to sell them to Her Majesty's Government.,
That it might be stated that there were several horse boxes and a locomotive among the material belonging to the Netherlands Campany, and that the authorities of the Cape Colony would be glad to obtain this rolling stock (Colonial Office, December 4th, Document F).
That Baron van Goltstein had now stated by his Note of the 26th ultimo (Document J), that the Netherlands' Company wished its material to be sent forward to Delagoa Bay, and that as regarded that material the arrangement set forth in the Note of the 25th November was therefore still in force.
That Baron van Goltstein's Note stated that the railway had not been “ceded" to the Government of the Transvaal; that the latter had availed itself of an Article in the Com- pany's concession to seize (pour s'emparer de), during the war, the right of working the line.
That the French translation of the Article referred to used the words The Govern- ment can
dispose of the railway" ("peut fer"); the original Dutch had the same meaning, that, namely, of disposing of” the disposer du chemin de working of the line.
Finally, Mr. Bertie requested that we would take the papers into our consideration and favour your Lordship with our opinion as to,
1. Whether having regard to all the circumstances of the case Her Majesty's Govern- ment are under an obligation to carry out, as regards the material originally destined for the Netherlands line, the arrangement set forth in the Note of the 25th November to Baron van Goltstein and to allow the goods to go forward to Lorenzo Marques under the condition therein stated.
2. What course they can properly adopt in the matter if they are not under the obligation mentioned in question 1.
any
Mr. Bertie was also to add that your Lordship would be glad at the same time to be favoured with observations which we might have to offer on the case generally.
In obedience to your Lordship's commands we have taken the papers into our con- sideration and have the honour to
Report-
That in our opinion Her Majesty's Government are under an obligation, as regards the material originally destined for the Netherlands line, to carry out the arrangement set forth in the Note of the 25th November to Baron van Goltstein and to allow the goods to go forward to Lorenzo Marques under the conditions there stated.
After it was known that control of the Netherlands South African Railway Company had been assumed by the Transvaal Government, Her Majesty's Government by the Despatch of 13th December, 1899, confirmed that arrangement as regards the goods now in question, while stating that they could not continue it as regards other goods. Her Majesty's Government are therefore in our opinion bound to carry out the arrange-
ment.
Care will of course be taken to ensure that the goods in fact remain at Delagoa Bay under the control of the British Consul, as it would appear that if they pass into the hands of the Netherlands Company there is every probability that they will be used for the pur- pose of facilitating military operations.
The Marquess of Salisbury, K.G.,
&c.,
&c.,
&c.
We have, &c..
RICHARD E. WEBSTER. ROBERT B. FINLAY.
2174.
SIB,
of 1896.
No. 6.
(BRITISH GUIANĂ.)
LAW OFFICERS TO COLONIAL OFFICE.
We were honoured with your commands signified in Mr. C. P. Lucas's letter of the 11th instant, stating that he was directed by you to transmit to us the enclosel letters and other documents noted in the margin with reference to certain questions which had arisen in connection with the extension of the Demerara Railway in British Galana.
That that extension was at present in course of construction by the Demerara Railway Company which was incorporate- by Ordinance 2 of 1846, in accordance with the accompanying Contract, date the 31st day of January, 1896, and confirmed by Ordinance No. 8 of 1896, which had been subsequently amended by Ordinances 10 of 1897 and 16 of 1899. That it would be seen that the two last-named Ordinances intro- duced certain amendments into the Contract, the most important of which, from the point of view of the reference to us, were the amendments made by sections 3, 4 and 11 (B) of Ordinance 16 of 1899, affecting clauses 4 and 47 of the Contract, by extending the time for its fulfilment, and for the compulsory purchase of lands by the Company, from three to three and a half years from July 22nd, 1896, the date of the passing of Ordinance 8.
That that extension of the terms of the Contract was the result of an intimation received by you from the Governor of the Colony in his despatch of the 17th January, 1899, to the effect that it was certain that the works would not be completed by the 22nd July of that year. Solicitors who, after taking Counsel's opinion, advised that the Government had an implied That that despatch was referred by the Crown Agents to their power under clause 30 of the Contract to extend the time for the completion of the new railways; and that they need not take possession of the works under clause 31 at any rate until after the expiration of the extended time allowed for their completion. That they based that opinion upon the opening words of clause 31, which stated that the powers of the Government were "in addition to and without prejudice to the last pre- ceding and all other clauses" of the Contract, such express reference being considered by them to make the subsequent provisions of clause 31 subject to the power of the Govern- ment to allow further time under clause 30. That they concluded their report by advising the Crown Agents to negotiate with the Company for the passing of an amending Ordinance for the following purposes, viz. :
Royal Courts of Justice, January 18th, 1900,
(a.) To extend the time for the completion of the new railways by six months, and
to give power to grant further extensions;
(b) To enable the Company to pay interest out of capital for a further period
of six months
;
(c.) To amend clauses 30 and 31 of the Contract so as to avoid any possible questions in the future. That on that advice, Ordinance 16 of 1899 was passed carrying out the first two of the above recommendations, except that no power was taken to grant any further extension after the six months should have clapsed. That the third recom- mendation was unfortunately neglected, and clauses 30 and 31 of the Contract remained in their original shape.
That on the 4th instant the Company addressed a letter to the Crown Agents formally notifying them that the Company was unable to carry out and complete its contract. That in that letter they stated that in view of the heavy liabilities in which the further prosecution of the undertaking would involve them, they saw no alternative but to at once stop all further expenditure thereon, with the result that the case would have arisen requiring recourse to clause 31 of the Contract. That a copy of that letter
was sent to you by the Crown Agents on the 6th instant, and that in their covering letter they made certain suggestions as to the course which should be adopted in view of the contingency which had arisen and which had been for some months foreseen.
That on the 8th instant the Company wrote again to the Crown Agents announcing that as they had received no reply to their letter of the 4th instant they felt that they had no alternative but to cable out giving instructions to their representatives in the Colony t
4671-25-171900 Wt 139 D&S