« EelmineJätka »
But where as in Adamson v. Newcastle Steamship Freight Insurance Association,' 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.
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.
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
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.
3 52 & 53 Vict. c. 49.
the parties in respect of a matter within the agreement to refer; and that it was not necessary that the action should be brought in respect of the same matter of difference, if brought in respect of a matter within the agreement to refer.1
Lord Campbell, C.J. said :-"I am of opinion that the rule should be absolute. The enactment is a most salutary one. At one time the Courts seemed to have a great horror of agreements to refer to arbitration, and they have even gone so far as to express a doubt whether an action could be maintained for a breach of it. I do not see why parties should not be at liberty to agree in the manner they think best. They cannot oust the jurisdiction of the Courts where there is a cause of action, but they may come to an agreement that there shall be no cause of action, until there has been a reference to arbitration, as was decided in Avery v. Scott. The enactment in question has for its object to give the parties to such an agreement the full benefit that they might expect to derive from a reference. to arbitration, but that would not be enjoyed if one of the parties could bring an action for a clearly admitted demand, at the same time that he might be liable to another demand of a greater amount arising out of the same contract. I, therefore, think that, although in this case there is no dispute as to the month's freight claimed, yet as there is a bona fide dispute as to the implied warranty of seaworthiness,
Russell v. Pelegrini, 26 L. J. Q. B. 75; 6 E. & B. 1020.
it must have been in the contemplation of the parties to this agreement that a cross demand of that nature should be a matter to be referred, so that it might be seen on which side the balance was. The defendant seems to me to have acted with perfect good faith from the beginning, and there has been no improper delay on his part. His bringing the action cannot be considered for the purpose of delay, as he had no longer the ability to refer within his power. The action by the plaintiff, I think, has been brought, in respect of the matters agreed to be referred.' There was a demand for freight on one side and for damages on the other, and both are within the scope of the agreement in the charter-party, and the action is brought in relation to such matters, and therefore the action should be stayed and the arbitration proceed. The Court has ample power in cases of this kind. Unless they see that the application is made bona fide, and that the party applying has always been ready and willing to refer, and unless the matter is really such as can be considered a fair matter of dispute within the meaning of the parties to the contract, the Court would not interfere. In the present case I think we ought to exercise our jurisdiction and grant the application."
This case was followed in Seligmann v. LeBoutillier,' where by a charter-party between plaintiff (shipowner) and defendant (charterer) it was agreed that "should any dispute arise between the owners and the charterers, the matters in dispute shall be referred
1 L. R. 1 C. P. 681.