R
28744.
PUBLIC RECORD OFFICE
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Reference :-
C.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
15 PUBLIC RECORD OFFICE, LONDON
SIR,
No. 230.
(Federated Malay States.)
LAW OFFICERS тo COLONIAL_OFFICE.
[Pier ut Port Dickson: construction of contract between the Sungei Ujong
Railway Co. and the Government.]
Royal Courts of Justice,
15th August, 1904.
WE were honoured with your commands signified to us by Mr. Graham in his letter of the 30th July last, stating that he was directed by you to lay before us a despatch of the 11th June from the High Commissioner of the Federated Malay States together with certain enclosures therein referred to, and to request us to favour you with our report upon the true construction of the contract between the Government of the Federated Malay States and the Railway Company so far as it related to the railway pier constructed at Port Dickson.
That he was to enclose a copy of an Agreement duted the 28th July, 1888 between the Government of the State of Sungei Ujong and Messrs. Hill and Rathborne, and to explain that the parties to that Agreement were now represented by the High Com- missioner of the Federated Malay States on the one side and the Sungei Ujong Railway Company on the other.
That as would be seen from the correspondence forwarded with the High Com- missioner's despatch, it was not alleged that the actual structure of the pier was now out of repair but that owing to siltage in the harbour one side of the pier was no longer accessible to steamers except at high tide. That there was, therefore, an undoubted diminution in the pier's maximum traffic capacity, but that there was no statement or proof in the papers submitted that there was in fact any actual diminution in the pier's efficiency," ie., such a diminution as would be proved by delay and inconvenience resulting to the public with regard to passenger and goods traffic.
That in this connection he was to draw our attention to clauses 10, 16, 20 and 31 of the Agreement of the 28th July 1888, which regulated the rights of the Government and the liabilities of the Company respectively as regards the pier.
That so long as one side of the pier was open and accessible at all states of the tide and the structure was in good repair and fit for use it would appear impossible to contend that there had been any breach on the part of the Company either of clause 16 or clause
20.
But that there remained the question whether if the pier had in fact suffered some liminution in "efficiency" that diminution was in law sufficient to entitle the Government to resume the whole railway with the pier, rolling stock, plant, &c., under Clause 31, or to claim a deduction on taking over the railway in 1908 under Clause 10 of the Agreement.
That it would be observed that the Agreement laid no express obligation upon either the Government or the Company to dredge the harbour in the vicinity of the pier with a view to keeping the latter "open," but that it might perhaps be contended that there was an implied obligation on this behalf on the part of the Company.
That he was, however, to state that, considering the question generally, you inclined to the view that, notwithstanding the language employed in Clause 31 of the Agreement, a partial failure of the Company to perform their contract by reason of some diminution of the efficiency of the pier would not justify the Government in rescinding the contract and resuming the whole railway and plant under Clause 31, the contract being one of that class the performance of which is said to be "divisible," though if the diminution of efficiency should continue and subsist in 1908, it would entitle the Government to claim a deduction from the purchase money under Clause 10 of the Agreement.
That he was to request us to take his letter and enclosures into our consideration awi to report :-
(1) Whether the Company was under any implied obligation under the Agreement
open ?
or otherwise to dredge in the vicinity of the pier with a view to keeping it
(2) Whether the restricted user of one side of the pier resulting from siltage amounts to a diminution of “efficiency" within the meaning of Clauses 10 and 31, unless it actually
25 Wt 416 ~01 DX S
19053
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