Universal Cargo Carriers Corporation v Citati (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,THE LORD CHIEF JUSTICE,LORD JUSTICE PARKER,MR. JUSTICE LLOYD-JACOB |
| Judgment Date | 17 June 1958 |
| Neutral Citation | [1958] EWCA Civ J0617-1 |
| Judgment citation (vLex) | [1957] EWCA Civ J0725-2 |
| Court | Court of Appeal |
| Date | 17 June 1958 |
[1957] EWCA Civ J0725-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Parker And
Lord Justice Ormerod
In the Matter of the Arsitration Act, 1950 and
In the Matter of an Arbitration
Mr A. A. MCCATTA, (C., and Mr MICHAEL KERR (instructed by Kossrs Holman, Fonwick & Willan) appeared on behalf of the Appellant (Charterer)
Mr ASHTON ROSKILL, C.C., and Mr H.V.BRANDON (instructed by Hessrs Constant & Concetant) appeared on behalf of the Respondents (Owners).
LORD JUSTICE HODSONS I will ask Lord Justice Parker to deliver the first Judgment
LORD JUSTICE PARKER This is the respondent's appeal from an order of Mr Justice Devlin who, in the course of hearing argument on a Special Case stated by an arbitrator, acceded to an application made on behalf of the claimants, and remitted the case for the finding of a particular fact.
The appeal raises a short though somewhat difficult point as to whether the learned Judge exercised his discretion properly in all the circumstances of the case In order to understand the point, it is necessary to state a few of the facts. The claimants are shipowners who, by a charterparty dated 30th June 1951, chartered a vessel to the respondent. The vessel was to proceed to Basrah and there load a cargo of 6,000 tons of scrap iron for carriage to Buenos Aires at U.S. 28 per ton freight The vessel arrived at Basrah on the 12th July, and there being no cargo ready, she remained at the buoys. The laydays presumably began to run from that date and would have expirod on the 21st July.
On the 17th July, after the vessel had been at the buoys for some five days, the cargo was still not available; and on the next day (the 18th July) the claimants threw up the charter and re-chartered the vessel to other charterers at a lower rate of freight. On the 23rd July the vessol sailed for Bombay to load under the new charter. On the 24th July the respondent obtained an injunction in New York against the claimants, but on the 27th July that was discharged by consent; and the claimants, without prejudice to their rights, granted the respondent an option (to be exercised before midnight on 15/l6th August 1951) to Charter a substitute vessel from the claimants on the same terms. No cargo, however, became available, and the option was never exercised.
Thereafter arbitration proceedings commenced, the claimants claiming their loss, represented by the difference in freight, and the respondent counterclalmlng for repayment of the advance freight which he had paid. The point in Issue, of course, was whether the claimants were entitled on the 18th July to throw up tho Charter as they did.
On the 22nd March 1956, the arbitrator stated an interim award (questions of liability only being dealt with) in the form of a Spocial Case. In paragraph 35 the arbitrator said this: "In so far as it be a question of fact I find and In so far as It bo a question of law I hold that tho respondent ovlncod an intention not to perform the chartorparty and committed an anticipatory breach of the chartorparty which the claimants were ontitlod to treat and accept and did treat and accept as a repudiation of the chartorparty by rochartoring the vossol on 18th July 1951".I nood not road the roat of the paragraph. In paragraph 36 of tho Award the arbitrator left the quostion of law to the Court In this form:"The question of law which the claimants requostod me to stato for the decision of this Honourablo Court, and which I accordingly horoby state for such decision, is whether upon the facte found and upon the true construction of the chartorparty tho claimants were ontltlod on 18th July 1951 to troat the chartorparty as discharged by the rospondont's broach and to claim damagos accordingly".
The Special Caso was duly set down for argumont, and was heard by Mr Justice Dovlin in February of this year. The hearing lasted seven days, and many difficult and interesting questions were debated. For reasons which it is unnecessary to go into on this appeal, the learned Judge exproasod the opinion that on the findings of the arbitrator the claimants had not shown that by tho 18th July 1951 the rospondont had by hia conduct ovincod an intontlon not to porforra the chartorparty.
The claimants, howovor, took a further point, namely, that on the 18th July the respondent was not raady and willing to porform the charterparty within such time as would not frustrate the vonturo. This point, be it observed, had nothing to do with evincing an Intention, but was directed to impossibility in fact. This, of course, depended on the actual position, whether known to the rospondent or not, as it oxistod before, on or after the 18th July. Questions thoroupon arose as to whether there were sufficient findings by the arbitrator on this point, and as to the power of the Court to draw inferences.
The claimants contended that the findings as a wholo whether expross findings, or findings in the course of the narrative - amountod to a finding in their favour, or, at any rate, wore such as to lead to an irresistible inforence in their favour. The learned Judge, howovor, took a view against them, expressing the opinion that on the case as it stood the claimants had failed to make out their case. Accordingly, while not abandoning his contentions, but only to safeguard his position, Mr Roskill for the claimants applied on the sixth day of the argument for the caso to be remitted for a further finding. on this point.
This, of course, involved an application to extend the time, since the six weeks allowod by Order 64, Rule 14, had long since expirod. The application was strongly resisted, but ultimately the learned Judge remitted the case, giving the cvlaimants all the costs to date, and unless otherwise directed, any further costsw in the arbitration incurrod by oither party by reason of the order for remission. The order was made orally on the 22nd February 1957. It was perfected on the 13th March, and for this purpose the relevant part of the Order is as follows: ": And it is further ordered that the said Award be remitted to the Arbitrator for him firstly to answer the following question namely whether the respondent was on the m18th day of July 1951 willing and able to perform the charterparty within such time as would not have frustrated the commercial object of the adventuro and aecondly to reconsider it he should think fit so much of the said Award as relatos to costs".
On the 12th March 1957 the learned Judge delivered a resorved opinion on his view of the law its application to the case. I say that he delivered an "opinion" since, except in relation to the application to romit, it could not be a Judgment until the further finding had been made. So far as this appeal is concornod, both parties procooded on the assumption that the views exprossed by the Judge in his reserved opinion were right and I think that we should do the same. Important qaostions wilo ariso for dotormaintaion if and when there is a substantive appeal questions as to whother the facts are sufficiently found in the claimants' favour; whether the Court has power to draw inferences of fact; and whether the seope of the decision in ( Hudson Bay Company v. Domings volume 10, Lloyds List Roports page 476) has the restrictod application put upon it by the loarned Judge, and many other mattgers. I refrain from exprossing any view upon them. The sole question here is wheter, on the assumption that the Judgo's views are correct, it was a proper exercise of his discretion to remit the case.
In deciding whether to remit a case, the Court, as I see it, is faced with two conflicting principles. On the one hand an Award in the form of Special Case is intended to be and should be regarded as final subject only to the point of law raised. So far as the facts aro concerned. It should bo regarded as ontiroly final. It is for the partios before the arbitrator to stato the question or questions of law which they dosiro to be left to the Court; and while it is for the arbitrator to stato the facts, it is for the parties to onsuro that, so far as possiblo, the relevant facts are found. In this connoction I need refer only to the two cases decided by the same loarned Judge rfeforred to in Russell at page 183, namely, ( Nello Simoni v. A/S &c . Straum 1949) volume 83 Lloyd List Reports.page 157, and ( Sinason-Teicher Inter-American Grain Corporation v. Oilcakes and Oilseeds Trading Company 1984) volume 2 All England Law Reports, page 497 at page 503. The parties can, of course, state to the arbitrator the facts on which they disine findings; and if he fails to make them they have the six weeks under the Order in which to peruse the Award, and, if they think it necessary, to apply for romission. Once the relevant facts are found, the parties can arguo such of the points of law loft to the decision of the Court as are open to them on these findings. A rigid application, however, of this principle would involve that in no case would it be open for the Court on the hearing of the Special Case, either of its own volition or on the application of party, to remit the case for further Finding.
On the other hand, there is the principle that the Court before which the case comes for argument must be able to do justice between the parties, and should not be hampored by findings which on its view of the law are insufficient, Boaring in mind the impossibility of drawing a hard and fast line between fact and law, the Court may often find itself faced with difficulty. In this connoction I would refer to apassago in the Judgment of Lord wright (Master of the Rolls) in Bonline Steamers Limited v. Compagnie optorg of Saigon reported in 42 Commorcial Case at page 295, the passage in...
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