"التحكيم في قضية مراكب الداو الشراعية في مسقط. محكمة التحكيم الدائمة في لاهاي. السماح برفع الأعلام الفرنسية على مراكب الداو الشراعية في مسقط. القضية بالنيابة عن الحكومة البريطانية". [و‎‎٧‎٠] (٢٠٨/١٥٢)

The foots of the oase are as follows: A British Indian subject applied to the Court of His
Highness the Sultan's Delegated Jurisdiction for a summons for debt against Juma-bin-Mubarak,
and it having been proved to the satisfaction of the Judge that the debtor intended to leave the
jurisdiction of the Court, a warrant was issued for his arrest. On the receipt of your letter of the
Gth instant, I had informed the Judge that Juma might claim to be under French protection, and
the case was, for this reason, heard as soon as possible. When Juma was brought before the
Court he was asked on what grounds he claimed French protection, and replied: u I am a Siiri
Arab, but my wife lives in Comoro ; I therefore claim French protection, as 1 have often stayed
there. At present, my wife and I live in Arabia." As neither the man's own statement nor the
fact that he was the captain of a dhow sailing under French colours was considered by the Judge
to be a sufficient reason for his withdrawal from His Highness the Sultan's jurisdiction, Juma was
ordered to give guarantee for the payment of his debt, and, on his refusing to do so, was ordered
to be detained in custody until such security was forthcoming. On the 9tli instant a satisfactory
guarantee was given, and the man was at once released.
You state in your letter of the 7th instant that 1 had verbally informed you that, even if I
had considered Juma-bin-Mubarak to be a French-protected subject, I could not have interfered
with the Judge's action in the matter if the latter were of a different opinion v Allow me to
observe that you have not quite correctly quoted my words. 1 said that, although, under the
circumstances, I should endeavour to convince the Judge that the man Avas not in effect under
his jurisdiction, and although I was convinced that he would pay great attention i:o my repre
sentations, I could not actually deprive the Court of a function which is inherent in all Courts,
namely, that of determining whether a particular person or thing is or is not within its jurisdiction.
But I added that, although on these grounds I could not technically assume responsibility lor
whatever action the Judge might take, I was strongly of opinion that the judicial proceedings in
the particular case under discussion had been absolutely correct, and was luliy prepared to
support them.
The only ground on which you claim Juma-bin-Mubarak as a French-protected person is
that he is the captain of a dhow sailing under the French flau', and you state that " it has always
been admitted that the crews of dhows, captain and men, sailing under French colours, are under
French protection."
This statement I cannot for a moment accept. You support it in a private letter to
Mr. Vice-Consul Kestell-Cornish by saying that you have found in the archives of your Consulate
letters from Sir A. Harainge, myself, and others, introducing to the Consul for France Indians
who had claims to advance against the personnel of French dhows; it is quite possible that the
individuals against whom these claims were made were considered on other grounds to be under
French protection at Zanzibar, or, if that was not the case, that the information on which the
introductions were given was false; but, however that may be, I am convinced that no person
employed on a dhow sailing under the French flag has, for that reason alone, been regarded by
any Representative of the Protecting Power as under French jurisdiction within the territories of
His Highness the Sultan. It is, of course, provided by the Brussels Act that the crews of native
vessels shall, as regards their engagement and discharge and some other matters, be under the
direction of the Consular authorities of the Powers under whose flags the vessels sail, but 1 am
not aware of any engagement to which the Sultan of Zanzibar is a party under which persons
so employed can withdraw themselves in civil or criminal matters from the jurisdiction to which
they would otherwise, when in Zanzibar, have been subject.
It appears from the evidence given in the case that the money claimed from Jnma-bin-
Mubarak was employed by him in the purchase of a dhow of which he is the master, and that
he is, therefore, the owner, as well as the captain, of a vessel which sails under the French
flag.
By Article XXXII of the General Act of the Brussels Conference, to which the French
Republic is a party, it is provided that authority to fly the flag of one of the Signatory Powers
shall only be granted to a native vessel the fitter-out or owner of which is either a subject of or
a person protected by the Power in question. I shall be much obliged if you will be so good as
to inform me upon what grounds a native of Siir, in Arabia, has been granted the right for sailing
under the French thig.
I have, &c.
(Signed) BASIL S. CAVE.
(No. 3.)
M. Guy to Mr. Cave.
Consulat de France h Zanzibar,
M. le Gerant, le 15 Septembre, 1902,
EN reponse a votre lettre de ce jour, sur les quelques points qu'elle souleve je serais heureux
de vous faire admettre—
1. Que Ton ne pent (officiellement) laisser a un fonctionnaire de I'ordre judiciaire la
competence de decider si une personne est sous sa juridiction ou non. C'est line question,
purement administrative, du ressort des autorites administratives. On pent dire que le pouvoir
administratif limite et defmit le pouvoir judiciaire. On entame differemment une action devant
eux ; ^ on recourt differemment centre leurs decisions. Alors qu'on pent faire revenir
rAdministrateur sur les siennes, en tout 6tat de cause, on agit envers le Juge an debut.