PUBLIC RECORD OFFICE
Reference :-
TILLC.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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to the Company in respect of each section of the railway when the Engineer should have certified such section as being completed and opened for traffic, the other half being granted when the whole of the line should have been equipped and opened; that the railway had been opened continuously to public traffic from the 1st January, 1908; and that the Company understood that, in view of this, the Consulting Engineer (meaning thereby Messrs. Gregory, Eyles and Waring) was prepared to recommend that when the agreed requirements had been carried out, and each section had been passed by the Engineer, the whole of the lands pertaining to such section should be granted. The Company also asked for an assurance that the time required for carrying out the agreed works would be certified by the Consulting Engineer as reasonable within the meaning of the proviso to Clause 8 in the supple- mentary contract dated 11th February, 1908.
9. On the 2nd March, 1910, the Earl of Crewe sanctioned the terms which had been agreed between Messrs. Gregory, Eyles and Waring and the Company with regard to the construction of the railway.
On the 31st March, 1910, the Crown Agents sent the Company a letter of that date, a copy of which is transmitted with these papers, stating that the date fixed by Clause 8 of the 1908 contract for completion and equipment of the railway would be extended by the Engineer to such time as he would consider reasonable to enable the Company to carry out and provide the works and materials mentioned in the schedule to the letter.
The Crown Agents subsequently wrote a letter of the 14th April modifying the terms set out in the said letter of the 31st March, in certain respects not material to be here stated, and on the 25th April, 1910, the Company sent to the Crown Agents a signed and sealed copy of a minute of a Directors' meeting at which a resolution had been passed accepting the terms set out in the Crown Agents' letters of 31st March and 14th April as a settlement of all differences between the Company A copy of this minute is and the Crown Agents arising out of the contracts.
transmitted with these papers.
On the 4th August, 1910, Messrs. Gregory, Eyles and Waring issued a certificate that the first 20 miles of the Shiré Highlands Railway from Chiromo northward had been completed in accordance with the contract requirements, and the Company were thereupon granted transfers of 64,000 acres of the subsidy lands in respect of such section.
On October 4th, 1910, the second section of the railway north of Chiromo, and on January 2nd, 1911, the third section, were certified completed as aforesaid, and grants of land were duly made.
On the 18th October, 1911, the final certificate was given in the following
terms:-
"We hereby certify that the remaining sections of the Shire Highlands Railway from Port Herald to Blantyre have been completed in accordance with the contract requirements.
" (Signed) GREGORY, EYLES AND WARING."
10. In these circumstances it is contended by the Company that the period of five years, within which under Clause 14 of the principal contract the Lake Nyasa extension must be substantially commenced, must be reckoned from the date of the certificate of October 18th, 1911. The arguments by which the Company support this contention will be found in an opinion by Messrs. Ashurst, Morris, Crisp and Company, dated the 9th October, 1913, and a letter dated the 11th November, 1913, from the Company to this Department. Copies of these documents are transmitted herewith. On behalf of the Government it may be argued that the date of com- pletion referred to in Clause 14 is obviously intended to be a different date from the date of the certificate referred to in Clause 42 (d); that it was, as has already been stated, the plain intention of the principal contract that the railway should In this connection, it may be be completed before being opened for public use. observed that Clause 14 of the principal contract refers only to the date of the com- pletion of the railway, while Clause 42 (d) provides for a certificate that the railway has been completed, equipped, and opened for traffic. From these provisions it seems possible to argue that, in spite of the variations introduced by Clause 8 of the 1908 contract in the provisions of the principal contract with regard to completion, the date of completion must, for the purpose of Clause 14 of the principal contract, be fixed at some time not later than the date when the railway was in fact opened for public traffic, viz., some date in the early part of the year 1908. If, however,
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it is held that the provisions of Clause 8 of the 1908 contract have made this view untenable, it may be argued that the date of completion for the purpose of Clause 14 of the principal contract is the date fixed by Clause 8 of the 1908 contract, viz., the 31st of December, 1908. In this connection I am to point out that, although the Crown Agents in their letter of March 31st, 1910, stated that the date fixed by Clause 8 of the 1908 contract for the completion and equipment of the railway would be extended by the Engineer for such time as he should consider reasonable to enable the Company to carry out and provide the agreed works and materials, no certificate under Clause 8 was ever given by the Engineer, and that in point of fact it would not have been proper for the Engineer to have given any certificate implying an admission on his part that the Company's delay, which was in fact caused by the Company's refusal to comply with his requirements in connection with the construction of the railway, had been due to some cause beyond its control: that the contracts make no provision for any general certificate of completion being given by the Engineer for all purposes of the contract; that the certificate contem- plated by Section 42 (d) of the principal agreement has reference only to the grant of subsidy lands, and that the certificate granted on October 18th, 1911, was in fact only granted in order to regularise the grant of the remaining subsidy lands to the Company. In these circumstances it seems to Mr. Harcourt that the time for the completion and equipment of the railway has never been extended under Clause 8 of the 1908 contract beyond the 31st of December, 1908, and that this date must, therefore, be taken to be the date of completion of the railway under Clause 14 of the principal contract.
11. I am to request, therefore, that you will take this letter and its enclosures into consideration, and advise the Secretary of State :-
(a) Upon the questions raised in Section 4 of this letter.
(b) Whether, if the Government decline altogether to allow the Company to construct the Lake Nyasa extension, the Company will have any right of action against the Government, and, if so, whether such action would be for specific performance, or for damages only, and what the measure of damages would be.
(c) Whether, if the Government and the Company are unable to agree terms for the construction of the said extension, the Company would be able to have the terms upon which such construction should be carried out settled by arbitration or, if the Government declined arbi- tration, by the Court.
(d) Whether the Government can refuse to include any provision for a grant of subsidy lands to the Company as part of the consideration for the construction of the extension, or whether such refusal would give the Company any, and what, right of action against the Government.
(e) At what date the first period of five years referred to in Clause 14 of the
principal contract must be taken to commence.
(f) Generally with regard to the position of the Government with reference to
the extension under the contracts.
I am to request that you will consider these questions as though they had to be decided according to English law, and that you will answer each of them inde- pendently, and will not refrain from answering any one of them on the ground that your answer to another renders consideration of the former unnecessary.
I am also to request that you will be good enough to favour the Secretary of State with your opinion at your early convenience, the matter being one of con- siderable urgency.
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REPORT.
I am, &c.,
H. J. READ, for the Under-Secretary of State.
This contract is so obscurely expressed that it may well be doubted whether the parties thereto had any precise view of what it was intended to cover, and we find it impossible to pronounce with certainty upon intentions which they have expressed with so much ambiguity.