The adjustment of a general average at the port of discharge, according to the law prevailing there, is binding upon the shipowner and the merchant, as they must be taken to have assented to adjustment being made at the usual and proper place, and, as a consequence, according to the law of that place.'

This rule only applies where the voyage is completed by the ship arriving with her cargo at the port of destination; when this happens to be a foreign port, the general average loss is adjusted there according to the law and usage of the country to which such foreign port belongs; and the adjustment so made is called a foreign adjustment."

If owing to sea peril, the voyage is broken up, and the ship and cargo part company at some intermediate point, a different rule is applicable.3

A shipowner who has a lien upon cargo in respect of a general average contribution, may insist upon payment in money from the consignee, and is not bound to take security before delivery of the goods; but the consignee, if the shipowner has demanded payment before delivery of the goods, must either pay the amount demanded, or at his own risk tender the right amount of his contribution; and to ascertain this he is entitled to proper information from the shipowner as to the value of the ship or other consignments. Where no question of tender is

1 Lloyd v. Guibert, L.R. 1 Q.B. 126; Arnould on M.I., 6th Ed. Vol. 2, 910, 2 Arnould on M. I. 6th Ed. Vol. 2, 910.

3 Lowndes on G. A., 4th Ed., 251,

Cancelling clause.

raised, but the shipowner insists upon security being given, the question is whether the terms imposed are reasonable.1

Where the clause that average is to be adjusted according to the York-Antwerp Rules, 1890, is inserted in the charter-party, any adjustment of general average affecting the goods mentioned in the bill of lading, would under this contract have to be made in accordance with these rules.

But where there are several consignees and several bills of lading, some of which do not contain the above clause, then as regards the goods covered by the latter, the adjustment will be made in conformity with the law of Great Britain, whilst those goods covered by the clause will be governed by the York-Antwerp Rules.

The cancelling clause in the charter-party that "the charterers have the option of cancelling, should the vessel not arrive at her first loading port, and be ready to load within a specified number of days," makes the contract voidable at the option of the charterer upon the non-performance of what amounts to a condition precedent, and whether there has been a breach of this condition which would justify the charterer in exercising the option given him of cancelling the contract, must depend upon a consideration of the several clauses in the charterparty, and the facts and circumstances attending each particular case.2

Huth v. Lamport, L. R. 16 Q. B. D. 442, 735; 55 L. J. Q. B. 239. 2 Smith v. Dart, 54 L. J. Q. B. 121.

But where as in Adamson v. Newcastle Steamship Freight Insurance Association,1 the charter-party stipulated that if the ship did not arrive at the port of loading by the 30th June, the charter was to be cancelled, no option is left to the charterer, and the contract upon the non-fulfilment of the condition is cancelled under the agreement.

Charter-parties frequently contain clauses similar Arbitration. to the following in reference to arbitration :-" Any dispute to be decided by arbitrators, one to be appointed by captain or owner, and another by charterers, the arbitrators to nominate a third, and the decision of the majority to be binding on both parties. And it is further agreed that the submission hereby made, shall be made a rule of Her Majesty's High Court of Justice upon the application of either party."

This clause enables parties to obtain a speedy and inexpensive adjustment of the numerous claims and disputes and difficult questions which frequently arise touching the construction of one or other of the clauses and conditions of the charter-party, by a submission of the points in dispute to the arbitration of practical men, who it is not unnatural to conjecture will adjudicate on the matters more satisfactorily than by recourse being had to tedious litigation.

Matters may be referred to arbitration in any manner that expresses the agreement of the parties to be bound by the decision of the person named

148 L. J. Q. B. 670.

and chosen to determine the matters in controversy. This person is styled the arbitrator, and the agreement conferring on the arbitrator his binding authority, is termed the submission.1

Under the Arbitration Act, 1889,2 section 27, a submission is defined as "a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not." formal submission, either verbal or written, is necessary.

No

Like other contracts when in writing, the submission must be duly executed; and where the accession of all parties to the reference is the consideration to each to execute the submission, it is not valid as to some who have executed it until all have done so, even although it purposes to refer all matters in difference between them or any two of them.3

It often happens that matters in difference are agreed to be referred to two arbitrators, one to be appointed by each party; in such case it is important to call attention to the fact that the appointment will not be considered complete until it has been notified to the other side; therefore, if it be one of the terms of the agreement that a party is to appoint an arbitrator by a certain day, it will be too late, though he nominate his arbitrator on the day, if he neglect to inform his opponent of the nomination till the day after.* If a party is bound

1 Bac. Ab. Arb. B. & D.

4

252 & 53, Vict. c. 49.

Outram v. Chase, 15 East. 209.

Tew v. Harris, 11 Q. B. 7; Thomas v. Fredericks, 10 Q. B. 775.

to appoint an arbitrator he performs his agreement by making the appointment, though the arbitrator will not act.1

2

Section 11 of the Common Law Procedure Act, 1854, which related to arbitration has now been repealed by the Arbitration Act, 1889; the decisions. on the terms of the former section will in most cases be applicable to the new section. Thus, where a charter-party between the plaintiff, on behalf of the shipowner and the defendant as charterer, stipulated for the payment of a certain sum per ton per month for the hire of the vessel, and further that any difference of opinion between the parties either in principle or detail should be referred to arbitration. The plaintiff brought an action for the sum which appeared to be clearly due from the defendant for the hire of the vessel. The defendant resisted payment, on the ground of a bona fide cross claim to damages for a breach of the charter-party, by reason of the unseaworthiness of the vessel at the time she was placed at the defendants' disposal under the charter-party. The defendant had always been ready and willing to refer the matter to arbitration, but the plaintiff had refused to do so, and insisted on his right to recover the claim for the hire of the vessel :-Held, that the defendant was entitled to stay the proceedings in the action under the 11th section of the Common Law Procedure Act, 1854, there being a bona fide difference of opinion between

1 Cooper v. Shuttleworth, 25 L. J. Ex. 114.

2 17 & 18 Vict. c. 125.

352 & 53 Vict. c. 49.