BEN LINE STEAMERS, LTD. v. COMPAGNIE OPTORG, OF SAIGON.

(1937) 57 Ll.L.Rep. 194

COURT OF APPEAL.

Before Lord Wright (Master of the Rolls), Lord Justice Romer and Lord Justice Scott

Charter-party - Discharging expenses - Stevedoring charges-Vessel chartered for carriage of rice and maize from Saigon to Havre and Dunkirk-Dispute as to stevedoring rates payable by owners - "Charterers' agents to nominate stevedore at loading port and discharge ports, provided rates charged are not higher than captain can get the work done by other good stevedores" -Stevedores nominated by charterers- Stevedoring contract previously entered into between owners and J. & H. whereby J. & H. agreed to discharge owners' steamers at Havre and Dunkirk at a rate in fact less than that charged by charterers' nominees-Discharge effected by charterers' nominees under protest by owners-Contention by owners that they were entitled to refund of charges in excess of those provided by contract with J. & H.- Whether contract rate applicable - Award in favour of charterers-Case stated - Question for the opinion of Court: Whether owners were entitled to recover sums claimed-Decision of learned Judge that charterers were not entitled to employ their stevedores if owners could get stevedoring done at cheaper rate-Case remitted to arbitrator for the purpose, if necessary, of taking further evidence and finding whether the owners could in fact have got the work done at Havre and Dunkirk at the particular time at a cheaper rate than that charged by the charterers' nominees-Appeal-Decision of C.A. that if the facts which it was desired to prove were facts which the parties desiring to prove them had at the time of the arbitration reasonable opportunity of putting before the tribunal, they ought not to be allowed afterwards to have the case remitted to the arbitrator to find facts upon fresh evidence which was available at the time of the hearing of the arbitration, and that therefore the case must be remitted to the learned Judge for a decision without such further evidence-Onus of showing lower stevedoring rates - Whether on shipowners or charterers- Decision of learned Judge in favour of owners-Appeal. Arbitration-Fresh evidence-Remitting of award - Observations of C.A. upon scope of learned Judge's discretionary power to remit under Sect. 10 of the Arbitration Act, 1889.