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to" &c. The owner having brought an action for freight, and the charterer having preferred a cross claim for damages for the captain's refusal to ship a reasonable amount of cargo, and for general disobedience of orders, and being willing to refer all matters to arbitration :-Held, that it was a case for the interference of the Court under the 11th section of the Common Law Procedure Act, 1851. Where an application was made for a stay of proceedings on the ground that the charter-party upon which the action is brought contains a stipulation that "if any difference should arise between the parties either in principle or detail," the same shall be referred to arbitration, it is no answer that the difference is one of law, as to the construction of the charter-party.1
A clause in a charter-party for the reference of disputes arising under it does not authorise the reference of disputes arising under the bill of lading, though the words "all other terms and conditions as per charter-party" are stamped on and form part of the bill of lading.2
Submissions to arbitration of matters the value whereof exceeds 51. must be stamped with a six penny agreement stamp, which may be denoted by an adhesive stamp,3 which is to be cancelled by the person first executing the agreement by writing on or across the stamp his name or initials, or the name or initials of his firm, together with the true date
1 Randegger v. Holmes, L. R. 1 C. P. 679.
2 Hamilton v. Mackie, 5 Times L. R. 677.
354 & 55 Vic. c. 39.
of his so writing, or otherwise effectively cancels the stamp and renders the same incapable of being used for any other instrument or for any postal purpose, and any neglect on the part of the person required to cancel the stamp to do so will subject him to a penalty of 101.
In India the submission to arbitration must be on impressed paper of the value of eight annas.1
The arbitrator is generally the final judge of law and fact. In order for an arbitrator to ascertain what are his powers and duties, he must look in cach case to the submission which confers the one and imposes the other, and gather therefrom the intention of the parties, and this intention he should be careful to carry out, and the safest course for the arbitrator to adopt is to endeavour to arrive at his conclusions upon the same rules and principles which would have actuated the tribunal for which he is substituted in coming to a decision.
Where the submission prescribes no time for the reference to begin, the authority of the arbitrator commences from the time of the agreement to refer being entered into, and he may make his award on the same day on which the submission is executed." But when there are several parties to a deed of submission, and the consideration to each to execute
I. L. C. Act 1 of 1879, Sched. 1, Art. 5 (c.)
Morgan v. Mather, 2 Ves. 17; Dick v. Milligan, 2 Ves. 23.
Hooper v. Balfour, 62 L. T. 646; Convela v. Volkart, 4 Times L. R. 209,
Anon. Latch. 14.
it is the accession of all the parties to the reference, the authority of the arbitrator does not commence until all have executed it; and even though the submission be several as well as joint, he has no power to decide on a separate matter in difference between two of those who have signed it, when there are others who have not executed it.1
As soon as the award is made the authority of the arbitrator having once been completely exercised according to the terms of the reference, is at an end. He is not at liberty, after executing the award, to exercise a fresh judgment on the case, or generally to alter the award in any particular. If he does so in fact, the alteration will be merely nugatory, and the award as originally written, will stand good; but by the Arbitration Act, 1889, s. 7 (c) in references on "submissions" made out of Court, he may correct in his award any clerical mistake or error arising from any accidental slip or omission.
It usually lies entirely with the arbitrator to appoint the time and place of meeting for proceeding in the reference, and it is the duty of the parties to attend to his appointment. In general, soon after the submission is made, the party who wishes to go on with the reference will call upon the arbitrator to deliver to him the submission and request him to appoint a meeting. It is usual to try to arrange some day by agreement that is convenient for all
1 Antrim v. Chace, 15 East. 208.
2 Brooke v. Mitchell, 6 M. & W. 473; Henfree v. Bromley, 6 East. 309; Trew v. Burton, 1 C. & M. 533.
3 Fetherstone v. Cooper, 9 Ves. 67.
parties; but if such an arrangement cannot be made and it be necessary for the arbitrator to make the appointment, he generally gives to the party applying for it a written appointment, specifying the time and place at which the parties and their witnesses are to appear. The arbitrator ought not to fix on too early a day, considering that he must give the parties time to get up their proofs and collect their witnesses; nor, when either party is anxious to press on the case, ought he on light grounds to appoint a distant day, for delay in the decision often causes serious inconvenience to the party entitled to recover, and may amount even to practical injustice.1
The party obtaining the written appointment should serve a copy of it on his opponent without delay, or at least within a reasonable time before the day of meeting.
The arbitrator may revoke the appointment he has given if he shall think fit. If from any cause either party find that he will not be able or that it will be very inconvenient for him to attend at the specified time, he should give timely notice of it both to his opponent and to the arbitrator; and the latter will in his discretion either insist on his attendance or put off the meeting and appoint another day.2
It is the duty of a party who intends to employ counsel in the reference to give notice of his inten
1 Russell on Arb., 7th Ed. 172.
Eastham v. Tyler, 2 Bail C. R. 136.
tion to his opponent previous to the meeting, in order that the latter may, if he please, provide himself with the like assistance. On an occasion where no such notice had been given, and one side appeared by counsel, and the other side complained of the want of notice, and begged for a postponement in consequence with a view to instruct counsel on his part, and the arbitrator refused to put off the meeting, the Court held, that in refusing the request he had not performed his duty of acting fairly between the parties, and consequently annulled the award.1
The arbitrator should hear all the evidence material to the question which the parties choose to lay before him as on a trial before a jury. It has been said that he may exercise some discretion as to the quantity of evidence he will hear, but declining to receive evidence on any matter is under ordinary circumstances, a delicate step to take, for the refusal to receive proof where proof is necessary is fatal to the award.3
The umpire when called upon to act, is in general invested with the same powers as the arbitrators, and bound by the same rules, and has to perform the same duties. He must pursue the same regular course with respect to the conduct of the case as arbitrator. He must examine such witnesses as the parties choose to produce, and as to such points as they choose to raise although the same witnesses