For Admiralty lawyers who have engaged in practice in the Federal Courts in the United States, the contrast between the pre-trial discovery procedures available to litigants in the Federal Courts and the nearly complete lack of such procedures in charter arbitrations comes as a substantial shock.

The lack of formal, systematic discovery in the arbitration process raises the question whether the arbitration of charter disputes can more often than not achieve substantial justice between the parties.

Practice in the Federal Courts is distinguished by discovery rules permitting full and complete discovery of an opponent’s case in advance of trial. The purpose of discovery is to afford the fullest possible knowledge of the issues and facts before a case is tried. See Hickman v. Taylor, 329 U.S. 495. The discovery procedures are designed to provide the means by which all facts and issues have been brought out into the open by the time a case proceeds to trial, so that each party may be able to prepare his case and have a fair opportunity to meet all contentions that will be raised in the course of the proceeding. In short, the party that prevails should succeed on the merits, and not by surprise.

On the other hand, the traditional purpose of the arbitration procedure has been the avoidance of extended, complex procedures with attendant expeditious, inexpensive (when compared with litigation) disposal of commercial disputes. Wilko v. Swan, 346 U.S. 427, 431 (1952).

But most importantly, the purpose of arbitration, just as litigation, is to resolve disputes justly and equitably.

Now that maritime arbitration panels are hearing and deciding numerous disputes involving substantial sums, it is submitted that the time has come to improve the discovery procedures available in the arbitration process for the purpose of transforming the arbitration process into a system in which surprise and its consequent advantages are eliminated.

The purpose of this article is to explore the methods of obtaining evidence presently available in the maritime arbitration process and to propose a revision of those procedures to permit the adequate pre-hearing discovery necessary to avoid surprise.

It is instructive to look briefly at the discovery procedures routinely available to counsel conducting proceedings in the Federal Courts for discovery.