PUBLIC RECORD OFFICE
سلانس
Reference:-
C.O. .885
2
the ships belonging to it even outside its territorial jurisdiction, insomuch that many writers treat a ship as an "allonge" of the country to which it belongs as, in fact, foreign ships are treated when within French ports. In my view it is not the natural meaning, and would be a highly inconvenient meaning juridically and in a business sense to attribute to these Conventions, if it were held that when within Cypriot waters they were governed by His Majesty, and when in the open sea, or in other waters, were governed by the Sultan. I think they are to be governed everywhere by His Majesty.
But the conclusion which I have stated is subject to two qualifications:
(1) The Sultan still remains the Sovereign of Cyprus and the Cypriots, though he has assigned to the British Crown in substance all the powers of Government appertaining to his position. But while exercising those powers the British Crown could not, without giving just cause of offence, assume the emblems of sovereignty. The flag is the principal of such emblems, and I do not think it would be within the spirit at least of the Conventions to prescribe the use of the British flag withi or without a distinguishing ledge. If a flag is needed other than the Turkish flag I cannot say as a matter of law that some neutral kind of ensign could not be used. If the Porte is Really this is a matter for arrangement with the Porte. obstinate, some special flag not possessing any national significance would be defens- ible, if it is worth while to make the change.
(2) Whatever arrangements may have been, or may be, made between Great Britain and Turkey, foreign Powers are still entitled to say they look to the Sovereign of the island for redress, and will treat its inhabitants as enemies, when at war with that Sovereign, if the point is to be settled by logic or indeed by the only precedent I am aware of. During the Crimean War it was decided that a Corfiot ship was not to be treated as a belligerent ship when Great Britain was at war.
That was while
Corfu was under the British Protectorate, and used as a place of arms by the British Government with a garrison and a harbour for the British fleet. At the same time I think that a Prize Court, fairly constituted, would not in these days There has been allow Cypriot ships to be taken as prize if Turkey were at war. a great development of Protectorates, and a change in the way they are regarded since 1854, as, I think, Mr. Hall points out in his book upon the Foreign Juris- diction of the British Crown. I believe that, if the case arose, both Prize Courts and disinterested Foreign Governments would treat Cypriot shipping as being, for purposes of capture, British shipping, or at all events not as being Turkish ship- ping, because in substance, though it may be otherwise in theory, Cyprus and the responsibility for its administration has passed to British hands. And if it be true, as I think it is, that the regulation of Cypriot ships outside Cypriot waters rests with Great Britain, it seems to follow that the duty of protection is in the same quarter. On the whole I am satisfied that a Prize Court ought so to hold, and Foreign Powers ought to act, on that footing. What they will do, should the question ever arise, will probably depend upon what they regard as their own interests if at the time they have an interest to serve.
I desire merely to add that a Cypriot vessel obviously cannot be placed on a British register as a British ship because she is not a British ship.
On the whole matter, I prefer the opinion of Sir R. Finlay and Sir E. Carson* together with that of the present Law Officerst rather than that of the Law Officers in 1879. But I have thought it better to give my reasons as Lord Halsbury held otherwise.
LOREBURN.
• No. 142 in Vol. VI.
t No. 48.
No. 196A in Vol. III.
1837
No. 92.
(EAST AFRICA PROTECTORATE.)
LAW OFFICERS to COLONIAL OFFICE.
[Questions connected with a lease of land, &c., at Magarii to the East Africa Syndicate, Limited.]
Royal Courts of Justice, MY LORD,
January 15, 1908. We were honoured with your Lordship's commands, signified to us in Mr. Antrobus's letter of the 15th November last, stating that ho was directed by your Lordship to transmit to us, for our consideration, the accompanying papers on the subject of a lease of land, &c., at Magardi in the East Africa Protectorate to the East Africa Syndicate, Limited.
That it would be seen that on the 15th of August, 1904, the Commissioner of the East Africa Protectorate granted to the East Africa Syndicate a lease for 21 years of certain land formerly covered by water and containing a deposit of carbonate of soda with power to work and carry away soda and other minerals and precious stones in consideration of the payment of a royalty of 5 per cent. on the net profits. That it would further be seen that, before the execution of the lease, but after the terms of it had been agreed upon, the Secretary of State for Foreign Affairs endeavoured to induce the Syndicate to agree to the insertion of clauses providing for a covenant to work the deposits and to pay a small head rent. That the Syndicate, however, demurred to the insertion of such a clause and merely gave a general assurance that "if at any time the Board come to the conclusion that the deposit cannot be successfully worked and that the project must therefore be abandoned, my Board will surrender the lease.”
That since the execution of the lease little or nothing had been done by the syndicate to develop the property, and that, as the deposits were believed to be of great extent and value, Mr. "Antrobus was to ask us to take the papers into our consideration and advise:-
(a) Whether the words of the last clause of the lease contained an implied covenant to develop the property?
(b) Whether the assurance given in the Syndicate's letter of the 3rd of August, 1904, afforded any grounds for cancelling the lease in the event of the Syndicate not proceeding to work the property within a reasonable time; and, if so, what tine would be reasonable?
(c) Whether the Crown Lands Ordinance, No. 21 of 1902, applied to this lease (notwithstanding the words of Section 3 which might appear to exclude a lease for working minerals from the scope of the Ordinance), and, if so, whether the working of the soda deposits could be enforced under Section 14 (e) and Section 18. which provided that a covenant "to use and develop the natural resources of the find leased with all reasonable speed, having regard to all the circumstances of the case," should be implied in all leases under the Ordinance, except where the consent was expressly varied or excepted, and that the lessor might re-enter in the event of a breach of such implied consent?
(d) Generally.
We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to
Repart―
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
That-
(a) We think not.
(b) We think not.
(c) We think that the Ordinance in question does not apply to this lease.
(d) The question raised in the case must be decided by the law of the East Africa Protectorate and it may be that the Courts of that Protectorate would take
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