Re an Arbitration between Keighley, Maxted, and Company and Bryan, Durant, and Company
| Jurisdiction | England & Wales |
| Judgment Date | 30 November 1892 |
| Date | 30 November 1892 |
| Court | Court of Appeal |
Court of Appeal
Lord Esher, M.R., Lopes and Kay, L.JJ.
Re An Arbitration between Keighley, Maxted, and Co. and Bryan, Durant, and Co.
Dinn v. Blake 32 L. T. Rep. N. S. 489 L. Rep. 10 C. P. 388
Mills v. The Bowyers' CompanyENR 3 K. & J. 66
Burnard v. WainwrightUNK 19 L. J. 423, Q. B.
Arbitration Act 1889 (52 & 53 Vict. c. 49), s. 10
Arbitration — Award — Remitting for reconsideration
Burnard v. Wainwright (19 L. J. 423, Q. B.) followed.
268 MARITIME LAW CASES. CT. OF APP.] RE ARBIT., KEIGHLEY, MAXTED, & CO. AND BRYAN, DURANT, & CO. [CT. OF APP. Supreme Court of Judicature COURT OF APPEAL Nov. 21 and 30,1892. (Before Lord Esher, M.R., Lopes and Kay L.JJ.) Re An Arbitration between Keighley, Maxted, and Co. and Bryan, Dubant, and Co. (a) APPEAL FROM THE QUEEN'S bench DIVISION, Arbitration - Awird - Remitting for reconsidera-tion - Grounds for remitting - Discovery of new evidence since the award - Carriage of goods - Arbitration Act 1889 (52 & 53 Vict. c. 49), s. 10. The discovery of new evidence since the award, which the arbitrator -may consider material to the matter in dispute, is a ground upon which the court may properly remit the matters referred to the reconsideration of the arbitrator under sect. 10 of the Arbitration Act 1889. Burnard v. "Wainwright (19 L. J. 423, Q. B.) followed. This was an appeal by Keighley, Maxted, and Co. from an order of the Divisional Court (Mathew and Bruce, JJ.) remitting an award to the appeal committee according to the rules of the London Corn Trade Association. Messrs. Keighley, Maxted, and Co. contracted, in writing, to purchase from Messrs. Bryan, Durant, and Co., 3000 tons of Karachi wheat, more or less, to be delivered to one safe floating port direct in the United Kingdom, or on the Continent between Havre and Hamburg, both included, but Calais and Rouen excluded. Messrs. Ralli and Co. shipped 3800 tons of Karachi wheat on, the steamship Bombay, an.-. Messrs. Bryan and Co. wrote to Messrs. Keighley and Co. informing them that they had appropriated 3000 tons of this wheat to their contract with them. By the terms of th6 charter-party, under which Messrs. Ralli and Co. had chartered the Bombay, the Bombay was to discharge at any safe port in the United Kingdom, except at Sharpness and Bristol Old Dock. Messrs. Keighley and Co. gave notice to Messrs. Bryan and Co. to discharge the 3000 tons of wheat at Sharpness. An arrangement was thereupon made by Messrs. Ralli and Co. with the shipowners by which the charter-party was modified so as to enable the Bombay to discharge at Sharpness, the shipowners reserving the fnll right to claim for all extra expenses, loss, or damage which might be occasioned by reason of the vessel going to Sharpness, and the charterers undertaking to pay the same. This arrangement was indorsed upon the charter-party Messrs. Keighley and Co. refused to accept delivery. By the contract it was provided that All disputes from time to time arising out of this contract . . . shall be referred according to the rules indorsed on this contract, and this stipulation may be made a role of any of the divisions of the High Court. On the back of the contract was indorsed: All disputes arising out of this contract shall be from time to time referred to two arbitrators, one to be chosen by each party in difference, the two arbitrators having power to call in a third in case they shall deem it necessary. The dispute was referred under that rule, and the arbitrators made their award in favour of Messrs. Keighley and Co. upon the ground that the alteration in the charter-party threw fresh liabilities upon the purchasers of the wheat. By the rules indorsed upon the contract it was provided that the award of any two arbitrators in writing (subject only to the right of appeal thereinafter mentioned) should he conclusive and binding upon all disputing parties; that in case either party should be dissatisfied with the award an appeal should lie to the committee of appeal elected for that purpose, and in accordance with the rules and regulations of the London Corn Trade Association; that the committee of appeal should confirm the award unless four of the members appointed to hear such appeal decide to vary the award; and that such committee should consist of five members to hear such appeal. If one of such five members died, &c., before a final award was made, anothei' might be appointed in his place. Messrs. Bryan and Co. appealed to the committee of appeal, who confirmed the award of the arbitrators. Messrs. Bryan and Co. applied to Barnes, J., at chambers, for an order remitting the matter for reconsideration by the appeal committee, upon an affidavit by Mr. Durant, which stated that, since the award of the appeal committee he had discovered that, after the making of the award, the shipowners had written to the charterers saying that by the indorsement upon the charter-party it was not intended that the consignees of the cargo, other than the charterers themselves, should be liable for any of the extra expanses, &c., the charterers being personally liable to the steamer for such extra expenses, the cargo's liability being limited to freight, and that the shipowners' solicitors had written confirming this statement, and that the charterers had replied confirming and accepting such statement. The affidavit also stated that some of the members of the committee of appeal had stated that if such evidence had been before them their decision would have been in favour of Messrs. Bryan and Co. Barnes, J. refused to make the order, but the Divisional Court (Mathew and Bruce, JJ,), on appeal, made an order remitting the matter to the reconsideration of the committee of appeal. The Arbitration Act 1889 (52 & 65 Vict. c. 49) provides: Sect. 10, snb-sect. 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 recon sideration of the arbitrators or umpire. Messrs. Keighley and Co. appealed. -, Cohrn, Q.O. and Carver for the appellants. - The order of the court below was wrong upon two grounds, first, the court had no jurisdiction under sect. 10 of the Arbitration Act 1889 to remit this award, because this was not an arbitration within the measmg of that Act; secondly, the ground upoa which the award was remitted was not a good ground for remitting an award. The "appeal committee" were not arbitrators within the meaning of the Arbitration Act, and therefore the matter cannot be remitted to them. (a) Reported by J. H, Williams, Esq., Barrister-at-Law. MARITIME LAW CASES. 269 CT. OF APP.] RE ARBIT., KEIGHLEY, MAXTED, & CO. AND BRYAN, DURANT, & CO. [CT. OF APP. Even if it could, it cannot now be remitted, because one of the five members who heard and determined this dispute has since died, and the matter cannot be remitted to the same persons who first determined it. The court had no power to remit this award upon the ground upon which they did remit it. The discovery of new evidence since the award is no ground tor remitting the award; it certainly is not unless the arbitrator...
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