Power for parties in certain cases to supply vacancy.

Powers of arbitrator.

Witnesses may be summoned by subpoena.

Power to

enlarge time for making award.

show that it was intended, that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy :

any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator.

If the appointment is not made within seven clear days after the service of the notice, the Court or a Judge may, on application by the party who gave the notice, appoint an arbitrator, umpire, or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.

6. Where a submission provides that the reference shall be to two arbitrators, one to be appointed by each party, then, unless the submission expresses a contrary intention—

(a.) If either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place;

(b.) If, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both partics as if he had been appointed by consent:

Provided that the Court or a Judge may set aside any appointment made in pursuance of this section.

7. The arbitrators or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power—

(a.) To administer oaths to or take the affirmations of the parties and witnesses appearing; and

(b.) To state an award as to the whole or part thereof in the form of a special case for the opinion of the Court; and

(c.) To correct in an award any clerical mistake or error arising from any accidental slip or omission.

8. Any party to a submission may sue out a writ of subpoena ad testificandum, or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action.

9. The time for making an award may from time to time be enlarged by order of the Court or a Judge, whether the time for making the award has expired or not.

10. (1)-In all cases of reference to arbitration the Court or a Judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.

(2.) Where an award is remitted, the arbitrators or umpire shall, unless the order otherwise directs, make their award within three months after the date of the order.

Power to

remit award.

11. (1)—Where an arbitrator or umpire has misconducted him- Power to set self, the Court may remove him.

(2.) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside.

aside award.

12. An award on a submission may, by leave of the Court or a Enforcing Judge, be enforced in the same manner as a judgment or order to award. the same effect.

compel

attendance of

18. (1) The Court or a Judge may order that a writ of subpoena Power to ad testificandum or of subpoena duces tecum shall issue to compel the attendance before an official or special referee, or before any arbitrator or umpire, of a witness wherever he may be within the United Kingdom.

witness in any part of the United Kingdom, and to order habeas corpus to issue.

case pending

(2.) The Court or a Judge may also order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before an official or special referee, or before any arbitrator or umpire. 19. Any referee, arbitrator, or umpire may at any stage of the Statement of proceedings under reference, and shall, if so directed by the Court or a Judge, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference. 20. Any order made under this Act may be made on such terms Costs. as to costs, or otherwise, as the authority making the order thinks just.

arbitration.

22. Any person who wilfully and corruptly gives false evidence Penalty for before any referee, arbitrator, or umpire, shall be guilty of perjury, perjury. as if the evidence had been given in open Court, and may be dealt with, prosecuted, and punished accordingly.

references

24. This Act shall apply to every arbitration under any Act Application of passed before or after the commencement of this Act as if the arbi- Act to tration were pursuant to a submission, except in so far as this Act under is inconsistent with the Act regulating the arbitration or with any statutory rules or procedure authorised or recognised by that Act.

powers.

27. In this Act, unless the contrary intention appears,-" Sub- Definitions. mission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein

or not.

Schedule.

PROVISIONS TO BE IMPLIED IN SUBMISSIONS.

a. If no other mode of reference is provided, the reference shall be to a single arbitrator.

b. If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award.

c. The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time, enlarge the time for making the award.

d. If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire, a notice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators.

e. The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award.

f. The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively, which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require.

g. The witnesses on the reference shall, if the arbitrators or umpire thinks fit, be examined on oath or affirmation.

h. The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively.

i. The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client.

PART III.

EXCEPTIONS.

exceptions

A DOUBT Sometimes arises as to when during the When the agreed voyage the ordinary exceptions of perils begin to apply. Do they relate only to that part of it in operate. which the ship is carrying the charterer's goods? Or do they also cover risks which frustrate or delay the voyage before the goods are taken on board? Say, in going to the port of loading, and during the loading there.

Where such and such perils are to be "always excepted," the shipowner seems to be relieved from liability for any failure to perform his contract, if caused by those perils, whenever they may have occurred. But where the clause runs "during the voyage always excepted," as it frequently does, there may be an ambiguity in the word "voyage."

If the vessel is to proceed to a different port from that at which she is lying, and load there, the voyage thither is considered to be part of the chartered voyage, even though the vessel be allowed by the charter to take, and in fact takes, a cargo outwards for other merchants; and although in doing so she proceeds first to another port, out of the route to the loading port.1

1 Hudson v. Hill, 43 L. J. C. P. 273.

In Donaldson v. Little,1 the vessel was to load a cargo at Barrow for Glasgow, and was warranted to arrive at Glasgow "not later than October 14th, unforeseen circumstances excepted." She sailed from Glasgow on October 11th, with an outward cargo for Dublin, in time under ordinary circumstances to have got back to Barrow, loaded there, and returned to Glasgow by the 14th. But bad weather prevented her reaching Barrow till the 16th, and again from reaching Glasgow till the 26th: Held, that there had been no breach of the warranty.

And if the vessel is prevented, or delayed in getting to the loading port; or if the loading is prevented, or a loss occurs during the loading, at that port, by a peril excepted "during the voyage," the exception applies.

So, again, where the vessel is lying at her port of loading, if she has to move from the place at which she is lying to a loading berth, the "voyage" to which the exceptions relate commences as soon as she breaks ground to go to that berth.*

But it seems that the exceptions do not apply to matters which may happen before the ship has entered upon the voyage dealt with by the charterparty. So that if she were disabled by perils of the sea while still completing a voyage, on which

1 10 Sess. Ca. (4th) 413.

2 Harrison v. Garthorne, 26 L. T. 508.

3 Bruce v. Nicolopulo, 24 L. J. Ex. 321; The Carron Park, L. R. 15 P. D. 203; Nottebohn v. Richter, L. R. 18 Q. B. D. 63.

Barker v. M'Andrew, 34 L. J. C. P. 191.

Harrison v. Garthorne, 26 L. T. 508.