Henry Wellington Wack
The Story of the Congo Free State
New York & London : Putnam 1905

Chapter XXIV : Navigation, Railways, Roads (pp.248-263)

Having regard to those articles of the Berlin General Act which relate to the free navigation of the Congo and it's affluents, the legal status of railways within the Conventional Basin of the Congo becomes a matter of considerable importance, especially in view of the growing controversy as to the proper construction of the Act.
Baron Descamps has ably treated this subject in his New Africa, a volume of exceptional interest at this time. After pointing out that the "freedom of navigation" declared by the Berlin Act must not be confounded with freedom of railway traffic, inasmuch as the latter admits of grants of monopoly and the former does not, this eminent writer on questions of general and special law says :

The idea of considering railways as continuations of watercourses, or as junctions between water-courses, was quite a new one, as was pointed out at the Berlin Conference. The Conference realized the necessity of providing for the logical consequences of such an idea, and therefore it drew up special regulations which are worthy of careful examination.
The general legal standing of railways in the Congo, the essential rights of the authorities as to their construction, their concession, their running powers, their charges, their position as public highways, their administrative and judicial policy are the same as those of railways in other countries.
The Berlin Act, as regards railways destined to provide transport where the Congo and the Niger become unnavigable, made special provision in clauses 16 and 23 on the one hand, and 29 and 33 on the other - the only clauses which are concerned with railways, for certain details of these communications. After declaring that these railways, as means of communication, are considered as auxiliaries of the rivers, the Act dwells on the legal consequences attaching to the introduction of this new idea, this conventional innovation in international relations. The consequences are as follows :
1. The obligation of opening the railways to the traffic of all nations (Art. 16 Par.1), and the inviolability at all times of the lines thus opened to the trade of all nations (Art.25 Par.1).
2. The obligation to refrain from any excessive railway rates, that is to say, "not calculated on the cost of construction, maintenance and management, and on the profit due to the promoters". The Berlin Act states but these general principles, it's object being to give the basis of calculation rather than a detailed solution of the problem, since it does not draw up a schedule of rates with respect to the nature of goods or the scale of the charges.
3. The obligation to observe, in fixing a tariff within these broad limits, "equality of treatment for the strangers and the subjects of the respective territories".
Thus, equality is sure to be observed as regards the tariff, both in the case of subjects and foreigners, and especially so in business which may be called the sphere of private activity, i.e. commerce. Thus also the power of the State to allow exclusive access to the railways, to impose extra or unfair charges, is minimised. The Berlin Act goes so far, but does not pass these limits. Beyond this, it does not affect the sovereign prerogatives of the State as regards it's territory.
According to the usual right of the Powers in all that regards railways, the State can order the establishment of the same, can have them constructed, run them itself, and fix their tariff. It can also, if deemed preferable, authorise a concessionaire to collect the charges on the contemplated line, on condition that he shall undertake the construction and maintain the established tariff.
The Berlin Act respects these fundamental rihts. It offers no opposition against whatever arrangements the State makes with it's concessionaire as regards a schedule of rates with respect to the nature of goods or the scale of the charges. It does not intrude upon the internal organization of the rates, except so far as it circumscribes them within the following limitations : 1, all are free to use the railways; 2, no distinction can be based on the nationality of individuals; 3, and no excessive rates are to be imposed.
Circumstances may render charges in the tariff advisable, and the State may modify the rates periodically. It may also exercise the right of ordering it's concessionaire to make certain modifications and reductions.
This was the course adopted by the Free State in relation to the Congo Railway in it's initial estimates. It also reserved the right of repurchase. This latter reservation, however, it abandoned for a time by Act dated November 12, 1901, which also stipulated in what manner it'd optional power of reducing rates was to be exercised. That power it exercised by imposing a comprehensive system of reduction, and without at the time committing itself to any declaration as to the specific classes of goods on which the rates were to be reduced. It does not concern strangers whether it be exercised in one act or two, and whether the concessionaire acts by special agreement with the State or under general powers. The main consideration is whether the procedure followed for the attainment of the reduction aimed at is in accordance with the Berlin Act. In the present case, the procedure certainly was in accordance with that Act.
From a legal point of view, nothing can be said against the State's reducing railway rates, inasmuch as it was invested with the right of primarily drawing up those rates.
By the same Act of November 12, 1901, the State enjoys certain special conditions of transport for carrying out works of public utility. That right is quite legitimate for the Government, and does not entitle private citizens to demand it's application for their own purposes. The State could have enjoyed these advantages if it had itself built and worked the line. The mere fact of a concession by no means robs the State of all it's rights in this respect. These advantages are justified, for the State has made real sacrifices in ceding a part of it's territory and in abandoning the repurchase clauses. The advantages accruing to the State do not in any way interfere with the equal treatment of individuals stipulated for in Article 16, which says "As regards the rate of these tolls, foreigners and subjects of the respective territories shall be treated on a footing of perfect equality".
No distinction is made on account of nationalities; the only difference made rests on a service of public utility, regardless of nationality. Neither subjects nor foreigners can say that their civil or commercial liberties are endangered.
There are certain authoritative interpretations of the Berlin Act which confirm our view of this question. The German Government, for example, considers no breach of equality the exemption of all dues granted to a German railway concessionaire. Below are two clauses of the Imperial German decree, dated December 1, 1891, and relating to the railway in German East Africa (Usambara line).
"Clause 1. - The Imperial Government shall grant to no other contractor, either individual or corporation, the right of constructing or working a railway line joining the said localities or liable to compete with the line ceded by the present decree or any parts of same".
"Clause 9. - The Imperial Government guarantees to the German East African Railway Company, subject to compliance with the prescribed formalities, an exemption from all taxes on materials, engines, working tools, and all other implements and articles which may be imported into German East Africa for the construction, repair, renewal, and running of the railway".
In drawing up special tariffs with it's concessionaire, it may be asked whether the State can base these rates on the actual working expenses - that is to say, with neither profit nor loss for the concessionaire. From an economic point of view, such a tariff is perfectly justifiable. Transporting operations, per se, cannot be separated from the transactions to which they are related. These transactions must be considered in view of all the surrounding circumstances. In negotiating transport operations, which of themselves entail neither profit nor loss, a contractor is quite justified in calculating on present or probable advantages which may result from the whole of the operation; as, for instance, the opening of new markets and the renunciation to the right of immediate repurchase of the concern. To forbid him to do this would be to spoil his chances and deprive him in many cases of a part of the profit to which he is justly entitled.
Neither can it be argued, in the case of a railway like that of the Congo, that the contractor should require rates superior to his actual expenses, in order to realise an immediate profit. Clause 16 states "that there shall be collected only tolls calculated on the cost of construction, maintenance, and management, and on the profits due to the promoters". To argue in the sense indicated would be against the purport of the clause which aims at forbidding excessive rates, but which in no way interferes with a gradual realisation of average profits by the contractors. To arbitrarily forbid the contractor to make such profits would be to fly in the face of clause 16, inasmuch as it refers to the profits die to the contractor. It is equally fallacious to imagine that because certain merchandise is carried for a time without profit, the rates for certain other merchandise must needs be increased. Finally, it would still have to be shown that the Berlin Act forbids a proper and reasonable equalisation of contractor's charges. But the Berlin Act does not meddle with such arrangements; it does not establish a detailed and proportional schedule of rates. It only says that such charges must not be excessive - that is to say, they must not exceed the comprehensive amount of the necessary expenses and due profits. The Act, moreover, fixes no maximum for such profits, neither does it fix any maximum rates on produce. It's intentions in this respect are shown by it's refusal to define, even by means of a maximum scale, the extent of compensatory rates.

Time was when the native Congolese, lazily living out his torpid life in a land where Nature in her luxuriance yielded him subsistence without the ennobling concommittant of his labour, avoided the great forests, the jungles, and the marshes of Equatorial Africa. He moved about to region of easy access where the land afforded his indolence the greatest pleasure for the least responsibility. Explorers and the early builders of the Congo Free State often experienced great difficulty in preventing the desertion of their native carriers over a trackless course, such, for instance, as Stanley, Wissmann, De Brazza, cut out on their several expeditions. In short, the African Negro regarded his feet with such solicitude that he waited for the white man to show him the thickets and the fastnesses which contained those natural resources - rubber, oil, gum, ivory, nuts - with certain library philosophers and untravelled colonisers assert were the conscious property of the savage who neither knew of, nor cared for, their existence. Industry was not worth while to him who could supply his wants in idleness.
The State, on the other hand, has not only taught the native Congolese the enlightening influence of honest labour, it has set him an example of colonial industry the like of which can not be found in the possessions of any other European Power. It built it's railways where the engineering skill of it's more powerful neighbours predicted failure; it sought the hidden treasure of a vast domain with routes and transport services which, in part, account for prosperity which others observe with manifest envy. Not content with these, it has lately penetrated the forests with wide avenues, hundreds of miles long, upon which to operate an automobile service. On this subject Vice-Governor-General Fuchs says :

The Government has also given attention to the construction of routes for motor cars; two chief routes of this kind are being constructed.
The first in the Uelle between Redjaf and Ibembo. It will be about 1250 kilometres in length, of which, according to the latest information furnished, 400 kilometres are now open to use. Experiments are being made there by means of three steam waggons.
The second starts from Songololo, a station on the railway from Matadi to the pool, and proceeds to Popokabaka on the river Kwango.
Routes destined for transport by waggons are, besides, in course of construction, and in some parts of the territory are sufficiently advanced to permit the transport by oxen, particularly in the Uelle, Katanga, and Manyema. The Mahagi-Irumu route is working for a length of 165 kilometres; eleven large villages are now established along this route, at distances of from 13 to 16 kilometres from each other.

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