CO885-(15-16) — Page 560

PUBLIC RECORD OFFICE

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C.O.8

.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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the transfer to a foreign Company of the railways which are the essential and principal means of British Administration in the territories concerned. According to Lord Crewe's reading of Article 6 of the Charter, there is involved in that Article the further condition that all the essential machinery of administration shall be British in character, and the railways therefore as part of such machinery must conform to that condition. The proposed Order in Council does no more than prohibit expressly what is already prohibited by implication according to the reasonable and necessary construction of the Charter.

5. The same argument applies to the third point. In Lord Crewe's opinion the condition as to British character has always been inherent in the constitution of the Railway Companies, and the debenture holders therefore have no ground for complaint if a restriction with regard to the property which has always implicitly existed is made explicit by the proposed Order in Council.

6. With regard to (4) Lord Crewe thinks that His Majesty's Government can give full effect to the objects of the Charter as above described without having recourse to the power of expropriation and such power does not commend itself to him as being appropriate or useful in the circumstances.

7. As regards (5) Lord Crewe thinks it unnecessary to make any reference to the Nyasaland Protectorate, as the question of legislation to prevent the transfer to foreign control of any railway within the boundaries of that Protectorate presents no difficulties.

8. I am to enclose a draft of the Order in Council in the form in which it is proposeil to issue it.

B. F. Hawksley, Esq.

I am, &c.,

W. S. R. S. T. E.

12215.

No. 11-4.

(SOUTH AFRICA.)

[Rhodesia Railways: interpretation of Clauses 27 and 28 of the Agreement of 3rd August, 1894, as to the free carriage of mails.]

MY LORD,

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, 5th April, 1909. WE were honoured with Your Lordship's commands signified to us in Mr. H. W. Just's letter of the 26th February last, stating that he was directed by Your Lordship to forward to us for our consideration the correspondence noted in the margin relative to the intention of the Rhodesia Railways, Limited, to charge for the conveyance of mails over H.Cr.. the Vryburg-Palapye section of the railway from the 9th September last, the date from No. 198. which the annual subsidy payable to the Company by the Government of the Bechuana 1906. land Protectorate under the Agreement 3rd August, 1894, ceased.

18th Oct..

To H. Cr.,

,, 1906.

H. Cr.,

That the question of the liability of the Rhodesia Railways Company for the continu- tel. 6th ance of the free carriage of mails on the railway appeared to Your Lordship to turn on the Nov., 1906, interpretation of the words "at all times" in clauses 27 and 28 of the Agreement. That To H. Cr., the Company maintained that the words signified "at all times during the continuance of No. 535. the subsidy," but that Your Lordship had been unable to find in the terms of the Agree- 10th Nov., ment itself any support for such an interpretation. That the expression “at all times occurred also in clauses 13 and 49, and that in each case the context made it clear that no No. 773. restriction was intended to be placed upon its natural meaning. That, moreover, it would 28th Sept. be observed that, when in clause 4o it was desired to qualify its meaning in the sense that 1908. the Company now wished to give to the words in clauses 27 and 28, it was thought neces To H. Cr., sary to add the words "during the continuance of this contract.” That, in fact, it would tel. appear that the expression was used primarily by way of contrust to the phrase " from time Rhodesia to time" (cf., e.g., clauses 2, 13, 25, 26, 29, 31).. That when the framers of the contract

Railways, desired to provide for an obligation terminating with the subsidy they would seem to have Limited, done so in terms (cf., eg., clause 49 (c))" from time to time only while the subsidy is 14th Jan., payable." That it appeared, therefore, to follow that they would have adopted the same 1909. course in clauses 27 and 28 had it been intended that the obligation imposed in those Contract. clauses should depend upon the subsidy, and be terminable with it. That Your Lordship 3rd Aug., was further of opinion that, the terms of the contract being clear, the evidence contained C. 7154. in the prior negotiations could not be admitted as a guide to its construction.

That Mr. Just was to request us to take the papers into our consideration and to report

(1) What was the proper interpretation of the words “at all times" in clauses 27 and 28 of the Agreement?

(2) Generally upon the matter.

We have taken the papers into our consideration, and, in obedience to Your Lord- ships' commands, have the honour to

Report-

1. That in our opinion the effect of clauses 27 and 28 of the Agreement is to impose upon the Railway Company a duty to perform the services therein defined, during the continuance of the contractual obligation of the Company to keep open and work the railway irrespective of the duration of the subsidy.

2. Although the construction of the Agreement is cleur, it does not seem to be drafted and completed in conformity with the antecedent negotiations so far as they are contained in the correspondence set forth in the document [C. 7154], According to that correspondence, both parties appear to have intended that the free carriage of mails should ccase at the expiration of the subsidy, and, unless the later negotiations with Messrs. Hollams & Company disclose any change of intention, we think that the Company has some claim to equitable consideration at the hands of the Government on the ground that the final form of the Agreement, whereby the free carriage of the mails was made to continue beyond the period of the subsidy, may have been due to mistake.

(18048-2.) Wt. 96—–382. 25. 1,08. D & 8.

22nd Oct.

1894.

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