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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 docaments 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.
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
110 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.
she was engaged at the time of chartering, the shipowner would not be excused.
If the ship is to be loaded at the place where she is lying, it does not appear to be settled whether the "voyage" may begin before she has commenced her transit, in such a sense that the exceptions may relate to risks during, or prior to, the loading.1
Where the exceptions relate to the whole of the charter-party, a failure of the shipowner to start for the loading port by an agreed date will be excused, if it was caused by an excepted peril." And so, also, of a failure to arrive by an agreed date.3
But this does not affect the right of the charterer, if any, to cancel the contract, in consequence of such a failure. That right remains; whether it arose under an express clause giving the charterer an option to cancel, should the ship not sail or not arrive, by an agreed date, or only by implication, from a stipulation that she should sail, or should arrive, before a given date.
It has been said that the clause of exceptions in the charter-party is introduced "for the benefit of the master, not of the merchant," and in Blight v. Page,' Lord Kenyon held that the charterer was not
1 Crow v. Falk, 15 L. J. Q. B. 183; Bruce v. Nicolopulo, 24 L. J. Ex. 321; Barker v. M'Andrew, 34 L. J. C. P. 191; The Carron Park, L. R. 15 P. D. 203; Valente v. Gibbs, 28 L. J. C. P. 229; The Accomac, L. R. 15 P. D. 208. 2 Crookewit v. Fletcher, 26 L. J. Ex. 153, 159.
3 Harrison v. Garthorne, 26 L. T. 508.
Smith v. Dart, L. R. 14 Q. B. D. 105.
5 Crookewit v. Fletcher, 26 L. J. Ex. 153.
6 Touteng v. Hubbard, 3 B. & P. 298.
73 B. & P. 295m.
excused from providing a cargo where that had been prevented by a prohibition of the Russian Government, though the charter excepted restraints of princes and rulers during the voyage.
Perhaps, however, this depends upon the manner in which the clause is introduced. Where the contract is in the form of separate covenants, and the shipowner's covenant alone contains the exception clause, the construction that he only is to have the benefit of it seems necessary; and is well supported by authority. But where the charter-party is in the ordinary form of a mutual agreement, with the exception clause after the several clauses that relate to the voyage to the port of loading, the loading there, and the voyage to and delivery at the port of discharge (and not specially referring to any one of these,) it would seem that the exceptions are as applicable to the charterer's part, of loading and unloading, as they are to the shipowner's part of bringing the ship to the ports of loading and discharge, and safely delivering.
It is now a frequent practice to express that the ordinary risks are "mutually excepted;" and in such a case, at any rate, the exceptions protect the charterer as well as the shipowner."
In construing in a charter-party the exceptions to the shipowner's liability, the rule is to be remembered, that where the words leave the intention in doubt, they are to be construed against the person
1 Sjoerds v. Luscombe, 16 East. 201; Storer v. Gordon, 3 M. & S. 308. 2 Bruce v. Nicolopulo, 24 L. J. Ex. 321; Carver p. 155 et seq.