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PUBLIC RECORD OFFICE

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15 PUBLIC RECORD OFFICE, LONDON

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Report-

That we think that if any attempts should be made to base the claim of the Company against the Government on contract on the ground suggested in the opinion of Counsel communicated by the Company to the Government, on the facts so far as they at present appear any such claim would in all probability fail."

►

We have not before us the Contract between the Company and the Contractor for the construction of the line. As far as we can gather from the Reports and Pro- ceedings in the Arbitration which are before us, the claim of the Contractor against the Company other than for extras ordered, with which the Government have nothing to do, seems to have been rested on breach of contract, and the allegation of collusion between the officials of the Company and the officials of the Transvaal Government in delaying the progress of the works was really advanced to meet the contention of the Company, that the delay was the result of the action of the officials of the Transvaal Government for which the Contract did not make the Company responsible. The case for the Contractor seems also to have been supported by the allegation that even if there was not actual collusion with the officials of the South African Republic the delays complained of would never have taken place but for the incom- petence of the local Board and Resident Engineer of the Company, and support is given to this allegation by the very definite admissions by Mr. Secretan in his evidence before the Arbitrators (see Proceedings Bundle H).

The Arbitrators appear to have decided against the Company on one or both of these two grounds, actual collusion, of incompetence of the representatives of the Company.

If there was actual collusion it appears to be obvious that the Company could not have recovered over against the Government of the late South African Republic and cannot now recover against His Majesty's Government as the successor in title of the South African Republic. The breach of contract on which they would have to rest their case would be one to which, according to the evidence before the Arbi- trators, the Company were themselves parties, and no action can be maintained by one who has been himself a party to the matters complained of.

If the incompetence of the local representatives of the Company was part of the efficient cause of the delays, it is not easy to see how they could render the Company liable for a result to which they had themselves contributed, but in the absence of more definite information as to what could Be proved, we cannot speak so positively on this point.

(2.) Yes.

(3.) The nature of the defence put forward by the Government should be as indicated in Answer 1. Any other grounds of defence can be considered when the claim is advanced.

If the claim should be based on tort to any extent it will of course be objected to as bad in law.

(4.) The Government should resist arbitration. The point is in our opinion quite unsuitable for decision in this way.

(5.) We think that the Government should repudiate all liability. We would suggest that all the papers, including a copy of the Contract between the Company and the Contractors which is not before us, should be laid before the Attorney-General. for the Transvaal Colony, as the case may to some extent depend upon the law of the Transvaal as distinguished from that of England.

As at present advised we do not see our way to agree with the ground taken up in the last sentence in the opinion of the Acting Attorney-General of the Transvaal, which is set out in Mr. Tennant's Minute of 20th December 1902 (Enclosure 1 to High Commissioner's despatch, 29th December, 1902.)

The Right Honourable Joseph Chamberlain, M.P.,

&c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

&c.,

• Colonial Office Note. The sentence is "If the Company founds its claim upon a breachi of the terms of the Concession by the servants of the Government and argues that the damage arose from a breach of contract, I would point out that there is no analogy between a contract entered into by the Government in the same way and with the same object as a private individual enters into a contract, say for supplies, and an agreement such us this Concession inten led to safeguard public interests."

12961/06

No. 180A. (GENERAL.)

LAW OFFICERS to BOARD OF TRADE.

COLONIAL Lights.

MERCHANT SHIPPING Äct, 1894.

Merchant Shipping (Mercantile Marine Fund) Act, 1898.

Further Case for the Opinion of the Law Officers and Mr. Sutton.

Herewith are sent the papers previously laid before Counsel, with copy of their Opinion* thereon.

A difficulty is apprehended in the carrying out of the course suggested by the Law Officers, having regard to the fact that under Section 5 of the Act of 1898 the incidence of levying light dues was altered from a payment in respect of the lights which a ship passed or from which it derives benefit to a light due levied on the basis of a tonnage rate without reference to any particular light being passed; and having regard to the provisions of Section 671 (1) of the Act of 1894, the question arises :-

(1) Whether, in the collection of Colonial light dues in the United Kingdom a light due based upon the passing of a particular light can be levied, or whether, having regard to the provisions of Section 5 of the Act of 1898 above referred to, the tonnage rate must be held to cover light dues which may be leviable in the United Kingdom in respect of any Colonial light? and

(2) Whether, if the answer to the previous question be in the affirmative, notwithstanding the fact that Colonial light dues if levied in the United Kingdom must be levied on the system of a tonnage rate, Colonial light dues which may in future be levied in a British possession as distinct from the United Kingdom and which have been fixed in accordance with the provisions of Section 670 by Order- in-Council, coupled with the passing of the necessary Act or Ordinance provided by Sub-section 2 of that section, can be levied in the possession in respect of the passing of any particular light, notwithstanding that if the light dues were levied in the United Kingdom they would have to be levied in accordance with the tonnage rate?

The Law Officers and Mr. Sutton, are requested to advise upon these further points accordingly.

Opinion.

We have again examined the provisions of the Act of 1894 as bearing upon the construction of the Act of 1898.

It appears to us that under the Act of 1894 Colonial lighthouses could be provided only on the security of dues to be levied in respect of these particular lighthouses, and in spite of the generality of the language used in the Act of 1898 we do not think it would be read as effecting so great a revolution as to render the General Lighthouse Fund liable for the expense of erecting new Colonial lighthouses. The language of the Act of 1898 is certainly very ambiguous, but upon the whole we see reason to dissent from our former opinion, and think that in all probability the Act in spite of the generality of its language would not be construed so as to work so great a change.

We are therefore of opinion that new lighthouses, buoys, or beacons near the coast of British possessions should be constructed, maintained, or improved only as before the Act of 1898.

This opinion appears to render unnecessary specific answers to the questions put in the supplementary case.

Royal Courts of Justice,

February 27, 1903.

See No. 144A.

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R. B. FINLAY. EDWARD CARSON. HENRY SUTTON,