Hodgkinson v Fernie and Another
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1857 |
| Date | 25 November 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 712
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 27 L. J. C. P. 66; 6 W. R. 181. Adopted, Dinn v. Blake, 1875, L. R. 10 C. P. 389; Landauer v. Asser, [1905] 2 K. B. 187. Approved, British Westinghouse Electric and Manufacturing Company v. Underground Electric Railway Company of London, [1912] 3 K. B. 139; [1912] A. C. 686.
HODGKINSON V. FERNIE 3 C. B. (N. S.) 189. [189] hodgkinson v. feknie and another. Nov. 25th, 1857. [S. C. 27 L. J. C. P. 66; 6 W. E. 181. Adopted, Dinn v. Make, 1875, L. R. 10 C. P. 389; Landauer v. Asser, [1905] 2 K. B. 187. Approved, British JVestinghouse Electric and Manufacturing Company v. Underground Electric Railway Company of London, [1912] 3 K. B. 139; [1912] A. C. 686.] The decision of an arbitrator, whether a lawyer or a layman, is binding on the parties both in matters of law and in matters of fact, unless there has been fraud or corruption on his part, or there be some mistake of law apparent on the face of the award, or of some paper accompanying and forming part of the award.-Thus, where a verdict was taken for the plaintiff, subject to the award of an arbitrator, as to the amount of damages, and his award included an amount of damages which (it was assumed) the plaintiff was not legally entitled to in the action,-the court refused to interfere.-And, held, that it was not a case for remitting the matter back to the arbitrator for re-consideration, by virtue of the 8th section of the Common Law Procedure Act, 1854 (17 & 18 Viet. c. 125),-that clause being intended only to apply to cases where before the act such a course might have been adopted under the provision in the submission or order of reference usually known as "Mr. Eichards's clause." This was an action to recover damages by reason of the plaintiff's ship " Sultana " having been run down by the defendants' ship "Courier." The declaration stated " that the defendants, by their servants, so negligently and unskilfully navigated and managed a ship of the defendants called the "Courier," then being navigated and managed by their servants, that the said ship struck and came into collision with the plaintiffs ship the " Sultana," by which the said last-mentioned ship was greatly and permanently damaged, and the plaintiff was put to and incurred great expense in repairing her, and was deprived of the use of her a long time, and thereby lost great profits which he would otherwise have made by her." The cause came on for trial before Cockburn, C. J., at the sittings in London after Michaelmas Term, 1856, when a verdict was taken for the plaintiff for the damages laid in the declaration, costs 40s., subject to a reference, as to the amount for which the verdict should finally stand, to Mr. Eichards, the average-stater; with a proviso, that, in the event of any application to the court upon the subject of the order, the reference, or the award or certificate, the court might (if it should think fit) refer back -to the arbitrator the whole or any part of the matter of the order, or the award or certificate, upon such terms and with such directions as the court should think proper. The arbitrator by his award ordered that the verdict should stand for [190] 7131. 8s. 2d., which included a sum of 4961. 6s. 8d. which the arbitrator allowed in respect of a deduction of 7101. 14s. 5d. which the commissioners of the Admiralty had made from what the plaintiff would have been entitled to for the hire of the vessel, for the period of her detention while under repair at Constantinople (a). This deduction was made under the following proviso in the charterparty:- "Provided always, and it is hereby agreed and declared, that, if at any time or times hereafter, it shall be made to appear to the said commissioners for the time being that any loss of time, breach of orders, or neglect of duty by the said master or other person having charge of the said ship, hath happened during the aforesaid service, or that, from any deficiency of men, want of provisions or stores, or any defect or cause whatsoever, the said ship became incapable to perform the service contracted for, then and in every such case it shall and may be lawful to and for the said commissioners for the time being to make such abatement, by way of mulct out of the hire and freight of the said vessel, as they shall adjudge fit and reasonable; and that a similar mulct may also be imposed for every deficiency of complement which shall be satisfactorily proved to have taken place, anything herein contained to the contrary thereof notwithstanding: And it is further agreed, on the part of Her Majesty, that, if the said ship shall happen to be burnt, sunk, or taken by the enemy during the aforesaid service, and it shall be made to appear to the satisfaction of the said commissioners for the (a) These repairs had been rendered necessary in part by a collision with another vessel called the "Kangaroo." 3 C. B. (N. S.) 191. HODGtKINSON V. FERNIE 713 time being that the same did not proceed through any fault, neglect, or otherwise in the master or the ship's company, and that they made the utmost [191] defence they were able, the value of her shall be paid for by Her Majesty according to the valuation made thereof on declaration by officers of the said commissioners, reasonable wear and tear first deducted." , By the charterparty, which bore date the 22nd of March, 1854, it was also, amongst other things, provided "that the said ship shall be strong, firm, tight, staunch, and substantial both above water and beneath, and in every respect seaworthy during the time she shall be employed under this charterparty;" and that the owners " shall be allowed and paid for the hire and freight of the said ship at the rate of 32s. 5d. per ton per calendar month for the number of tons above mentioned, during such time as the said ship shall be continued in Her Majesty's employ, and shall duly perform the service for which she is hereby engaged." Quain, on a former day in this term, obtained a rule calling upon the plaintiff to shew cause "why the award or certificate on the assessment of damages by the arbitrator should not be set aside, or referred back to the arbitrator, or why the damages so assessed by him should not be reduced by the sum of 4951. 6s. 8d., on the ground that the same was not recoverable as legal damages, and had been improperly allowed by him as a part of the said damages." He submitted that the damage in question was not a damage that could be recovered on the declaration as framed, the deduction having been improperly made by the commissioners of the Admiralty, and improperly submitted to by the plaintiff: and he adverted to the opinion thrown out by Pollock, C. B,, in Greenland v. Chaplin, 5 Exch. 243, 248, where that learned judge says,-" I am desirous that it may be understood that I entertain considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under [192] any circumstances arise, and in respect...
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