Page:1902 Encyclopædia Britannica - Volume 25 - A-AUS.pdf/612

 I NTERNATIONAL and working during ninety-nine years of a railway agree. The original expedition, whatever its design, construction from Lorenzo Marques, the port of Delagoa Bay, to the frontier appears to have been abandoned, since the two vessels of the Transvaal. It was a term of the concession remained in the port awaiting the event of some negotia- that the Portuguese Government should not construct Railwayy ' tions for their sale to Mexico. In the meanwhile the or allow within the district of Lorenzo Marques any railway from the coast to the Transvaal parallel to the Benjamin Franklin had been chartered by the Royal other M'Murdo line within a distance of sixty miles. It was further British Mail Steamship Company for a voyage to Bar- provided that the concessionaire should have the absolute right badoes and back. She neglected to provide herself before of fixing the charges both for passengers and goods. In furtherstarting with the permit required by the local regulations, ance of his scheme Colonel M'Murdo formed a Portuguese but this company being unable to raise sufficient and was accordingly fired at from one of the Danish company, capital delegated its powers and transferred the bulk of its forts. One shot struck her, but did little injury, and her property to an English company, formed in March 1887 and voyage was only delayed a day. In 1860 Mr Secretary called “The Delagoa Bay and East African Railway (Limited).” Cass brought to the notice of the Danish Government a The last-named company issued shares and bonds which were taken up by Colonel M'Murdo and by English investors. claim by Carlos Butterfield and Company in respect of largely Before the grant of the concession of 1883 an agreement had been the detention of the two ships and of the firing into the made between the South African Republic and Portugal whereby Benjamin Franklin. After protracted negotiations, the the former bound itself, whenever the Delagoa Bay Railway matter was ultimately referred to Sir Edmund Monson, should reach the Transvaal frontier, to continue the line as far then British Minister at Athens. He made his award on as Pretoria. At this period the frontier of the Transvaal had been finally delimited, but the Portuguese officials placed it 22nd January 1890, and decided that both claims were not in their maps at about 80 kilometres from the coast. The unfounded. Portuguese Government agreed that, if this distance was inIn 1888 a Dutch craft, the property of an Amboynese creased, the company which had undertaken to make the railway firm, drifted from her moorings in the Malay archipelago to the frontier should be allowed a reasonable extension of time. 1884 the Portuguese Government promised to the and was carried to the island of Buru, no one On 17th May Government a concession for a steam tramway parallel The “Costa being on board at the time. Shortly after- Transvaal to the projected railway in case the English company failed to Packet.” wards the owners were informed that she had complete the railway by the prescribed date, and also promised been taken possession of by a whaling-vessel that the steam tramway should be used both for passengers and if the Portuguese Government failed to agree with the called the Costa Rica Packet (John Carpenter, a British goods English company as to the through rates to be charged on the subject, being master), then on its way from New South railway. This promise was embodied in a commercial treaty Wales, and that Carpenter had transferred the cargo to negotiated by President Kruger (who made a special visit to his own ship and had sold it at Batchian. A complaint Lisbon for the purpose), and was kept secret from Colonel and the shareholders and creditors of the English was at once lodged against the master before the officials M‘Murdo company. The frontier line of the Transvaal was ultimately at Macassar, and they, considering that a prima facie case drawn through Komati Poort, a point about five miles farther against the master had been made out, issued a warrant from the coast than that shown on the Portuguese maps. The for his arrest. Accordingly, on the arrival of the Packet Portuguese Government thereupon required that the railway Lorenzo Marques should be continued up to the new at Ternate, Carpenter was seized and brought to Macassar from frontier, eight extra months (of which five were in the rainy to be tried-—his ship proceeding to Batavia without him. season) being allowed for the extension. This was an unreasonWhen the facts came to be further inquired into at able term, and was not, and could not be, complied with. At Macassar, it became evident that the wrongful appropria- the end of the eight months the Portuguese Government deColonel M'Murdo’s concession forfeited, and seized the tion, if any such there had been, had taken place on the clared nearly completed railway. high seas, more than three miles from land. The court The Governments of Great Britain and the United States retherefore held, in conformity with the well-known rule, monstrated in the interest of the widow of Colonel M'Murdo and that it had no jurisdiction to interfere, Carpenter being the other creditors of the English company, the British Governanswerable for his acts to the British Government alone. ment going so far as to despatch a gunboat to Delagoa Bay and to back its remonstrance by force. Here in truth was It therefore ordered his discharge. It was now Car- threaten a cisus belli with Portugal, for that country appeared to have penter’s turn to complain. When he was set free the broken its pledges under pressure from, and in deference to the Batavian mail had just left Macassar ; he was consequently political aims of, the South African Republic. Happily pacific forced to remain there over three weeks, and when at last counsels prevailed. An agreement was come to between Great the United States, and Portugal, whereby it was referred he reached Batavia, it was too late to take advantage of Britain, to arbitrators to be named by the Federal Council of Switzerland the whaling season in the southern seas. The Packet to determine the compensation to be paid by Portugal to the being useless except as a whaling-vessel had to be sold at parties interested in the forfeited undertaking, the illegality of Singapore at a loss. Heavy damages were claimed against the proceedings of the Portuguese Government being admitted the form of the reference. The subsequent dates are remarkthe Netherlands Government by all the parties interested, by able. The arbitrators were named in 1890, and in that year and a correspondence ensued between that Government Portugal paid £28,000 on account. The court began to sit at and the British which extended over four years. At Berne in 1892 ; the pleadings closed in 1896. It' was then delength, in May 1895, both Governments signed an arbi- cided to appoint a commission of experts to make local inquiries to report. When the report came in, the sittings were retration treaty by which they agreed to invite a third and and were not concluded until the summer of 1898. The power to nominate a jurist of undoubted reputation who sumed, award (which was unanimous) was published on 29th March 1900. should settle the points in difference. The power chosen It directed Portugal to pay to the Governments of Great Britain was Russia, and the Emperor Nicholas II. nominated, as and the United States within six months from the publication of arbitrator, Professor F. de Martens. He, by his award in the award the sum of £612,500 (in addition to the £28,000 paid 1890), together with interest at 5 per cent, per annum from 1897, declared the Netherlands Government liable to pay in 25th June 1889 down to the time of payment, making a total of £8550, distributed as follows :—£3800 to the owners of nearly £1,000,000 sterling. This sum was to be employed in the Backet) £3150 to Carpenter; £1600 to the remain- compensating the bond-holders and other creditors of the Delagoa ing officers and the crew; each of these amounts to carry Bay Railway Company according to their several priorities, such to be settled by arrangement between the claimants interest at 5 per cent, as from the date of Carpenter’s priorities themselves. The costs of the arbitration were to be borne equally arrest. by the three governments, that is to say, one-third by each. The latest arbitration on illegal seizure is that known as the Delagoa Bay Railway case, of which the facts are Closely akin to international arbitration is the proceeding by Mixed Commission, on which all the parties in as follows :— In December 1883 the Portuguese Government granted to difference are represented. Such commissions have been Colonel M'Murdo, an American citizen, a concession for the most frequently resorted to for settling the indemnities to 562

ARBITRATION,