CO885-(15-16) — Page 656

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PUBLIC RECORD OFFICE

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Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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the contract so far as regards the Lake Nyasa extension if the construction thereof shall in the opinion of the Engineer not have been substantially commenced within five years of the date of the completion of the railway in accordance with the contract between Chiromo and Blantyre; and to Section 42 (d), which provides that one-half of the subsidy lands to be granted in respect of each section of the railway shall be granted to the Company as and when the Engineer shall have certified that such section has been completed, equipped, and opened for traffic in accordance with the contract, and the other half of the said lands shall be granted to the Company when the Engineer shall have certified that the whole of the Chiromo-Blantyre Railway has been so completed, equipped, and opened.

It appears to Mr. Harcourt from the provisions of these clauses and of Clauses 9, 13 and 28 of the contract that the intention of the contract was that the Chiromo Blantyre line should be completed and equipped throughout its length before being opened in its entirety for public traffic, and that if the contract stood alone, the reference in Clause 14 to the completion of the railway in accordance with the contract between Chiromo and Blantyre would have to be construed as indicating a date prior to the opening of the line in its entirety for public traffic. This course of procedure was not, however, observed, the order of events having in fact been as hereinafter described.

6. Shortly after the execution of the principal contract the Company experienced difficulties with regard to the navigation of the Shiré River, upon which Chiromo is situated, and in the spring of 1903 they began to build a tem- porary line from Port Herald, lower down the river, to Chiromo. In the middle of that year the Company asked for permission to construct a permanent line between these points, and, after some negotiations, permission was eventually given in a letter from the Colonial Office to the Chairman of the Company, dated February 11th, 1905. In this letter (a copy of which accompanies these papers) it was laid down that the new concession should be treated as an extension of the existing contract, and it was expressly provided that the whole railway, including the extension. must be completed within the five years allowed by the contract.

Various difficulties arose between the Company and the Government with regard to the construction of the line, the Company refusing to comply with certain requirements of the Engineers appointed by the Government to act for the purposes of the contract, but the Company proceeded with the construction of the 'Port Herald-Blantyre Railway as a whole, and the line was used to some extent for passenger as well as goods traffic to the rail-head as early as March, 1906, the Secre- fary of State being of opinion that he had no power under the contract to prevent such a user.

On January 1st, 1908, the agent in the Protectorate of Messrs. Gregory, Eyles and Waring, who had been appointed by the Government to act as Engineer for the purposes of the contract in pursuance of Clause 1 (f) thereof, certified that the railway had not been constructed, completed, and equipped in accordance with the terms of the contract at the date of the expiration of the contract time, i.e., 31st December. 1907; and on the 11th February, 1908, there was executed a supple- mentary contract which had been the subject of long negotiations between the Company and the Government, providing for the construction of the Port Herald- Chiromo line in accordance with the terms of the Colonial Office letter of Febru- ary 11th, 1905, and for an-extension of the time for completion mentioned in the original contract.

7 By this supplementary contract (hereinafter called the 1908 contract "), which was expressed to be made between the same parties as the principal contract. except that the Crown Agents were therein described as acting for and on behalf the Government "), of the Nyasaland Protectorate (thereinafter referred to as and was declared to be supplemental to the principal contract, the Government granted the Company the right to construct and work, by way of extension of the railway authorised by the principal contract, a line of railway between the points thereinafter mentioned as the points of commencement and determination of the extension railway thereinafter described.

By Clause 1 of the 1908 contract it was provided that in the 1908 contract, and also in the principal contract where the context so admitted (by way of substi- tution for the definition contained in the principal contract), the expression "the railway" should be taken to mean and include the extension railway as well as the original railway, and the expression "the Government" should mean the Government of the Nyasaland Protectorate.

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By Clause 2 of the 1908 contract provision was made for the construction, com- pletion, and equipment by the Company of the extension railway from Port Herald to Chiromo.

By Clause 3 of the 1908 contract it was provided that the extension railway should be constructed, and, subject to the provisions of Clause 8 thereof, completed and equipped in accordance with the principal contract and the 1908 contract so from years that it should be open to public traffic on or before the expiration of five the date of the principal contract.

By Clause 4 of the 1908 contract it was provided that, subject to anything therein expressly declared or necessarily implied to the contrary, the whole of the covenants, provisions, stipulations and clauses of the principal contract should be deemed to be incorporated in the 1908 contract, and to apply to the extension rail- way as well as to the original railway, and that accordingly the 1908 contract and the principal contract should be construed together and should operate and have effect as if the railway between Chiromo and Blantyre authorised by the principal contract had originally included the extension railway and had been a railway between Port Herald and Blantyre, and any references in the principal contract to the railway between Chiromo and Blantyre should be read and operate as if referring to the railway between Port Herald and Blantyre.

By Clause 7 of the 1908 contract provision was made for granting subsidy lands in respect of the extension railway, and it was provided that no part of the subsidy lands should be granted to the Company until the Engineer should have certified that the railway had been opened for traffic and completed and equipped in accordance with the principal contract and the 1908 contract, and unless the railway should be so opened, completed, and equipped the Company should not be entitled to the grant of any such lands.

By Clause 8 it was provided that, if the railway should be sufficiently completed and equipped so that it could be opened for public traffic on or before the 30th of June, 1908, and should thereafter be kept open and worked as therein mentioned.. at least one mixed train for the conveyance of passengers and goods being run in each direction in every seven days from the date of opening for public traffic, then the time for completion and equipment of the railway should be extended until the expiration of six years from the date of the principal contract. Provided that, if the Company should be delayed by some cause which in the opinion of the Engineer should have been beyond its control, such further time should be allowed as the Engineer should certify to be reasonable.

8. The Company began to carry out a weekly service in accordance with Clause 8 of the 1908 contract early in the year 1908, but difficulties continued to arise between the Government and the Company with regard to the construction of the line. On December 22nd, 1908, the Company asked for a certificate from the Engineer, under Clauses 7 and 8 of the 1908 contract, that the original (Chiromo- Blantyre) and extension (Chiromo-Port Herald) railways had been duly opened for traffic, completed, and equipped in accordance with the contracts before Decem- ber 31st, 1908. On the 8th of January, 1909, the local Government informed the Company that the Government Engineer (meaning thereby the Agent in the Pro- tectorate of Messrs. Gregory, Eyles and Waring) had reported that the line had not been completed and equipped up to standard in accordance with the terms of the contracts, and stated that it was proposed to leave general questions arising under the contract to be settled in London between the Colonial Office and the Com- pany, but that in the meantime, provided some system were adopted which would satisfy the Government Engineer that the line could be used as a temporary measure without danger to the public, the Governor was willing to allow temporary use to be continued pending such decision as might be arrived at in England regarding contract questions.

In the same month temporary arrangements were agreed between the local Government and the Company to secure the safety of passenger traffic, and negotia- tions were thereupon begun in London between the Company, on the one hand, and the Crown Agents, Messrs. Gregory, Eyles and Waring, and this Department, on the other, an arrangement eventually being reached as to the works to be executed by the Company at the beginning of 1910.

On the 3rd February, 1910, the Company wrote to Messrs. Gregory, Eyles and Waring with reference to the agreement arrived at, pointing out that under Clause 9 of the original contract the railway was to be considered as divided into sections of 20 miles, and under Clause 42 (d) one-half of the subsidy lands was to be granted