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Hogarth Shipping Co. Ltd. Vs. Mitsui Bussan Kaisha Ltd. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata
Decided On
Reported inAIR1925Cal922
AppellantHogarth Shipping Co. Ltd.
RespondentMitsui Bussan Kaisha Ltd.
Cases ReferredSee Doleman v. Ossett Corporation
Excerpt:
- .....null and void and that the said award may be set aside and cancelled and that the respondents the hogarth shipping co. ltd. should pay to the petitioners the costs of and incidental to this application.2. the facts are as follows :-on the 1st february, 1924, samuel crawford hogarth, hugh hogarth, barclay hogarth and john baird henderson, carrying on business in co-partnership as shipowners under the name, style and firm of h. hogarth at no. 24, st. enoch square. in glasgow, instituted a suit in this court being suit no. 358 of 1924, against the mitsui bussan kaisha, limited praying for the recovery of a sum of rs. 10,333-5-4 as damages for detention of a certain vessel named ' baron jedburgh ' and of a further sum of rs. 31,666-10-8 as demurrage. the said suit was based on a charter.....
Judgment:

C.C. Ghose, J.

1. This is an application on behalf of the defendants Messrs. Mitsui Bussan Kaisha, Limited, for an order that id may be declared that an award made on the 11th March, 1925 by Messrs. A.O. Brown and L. Edwards, arbitrators, is null and void and that the said award may be set aside and cancelled and that the respondents the Hogarth Shipping Co. Ltd. should pay to the petitioners the costs of and incidental to this application.

2. The facts are as follows :-On the 1st February, 1924, Samuel Crawford Hogarth, Hugh Hogarth, Barclay Hogarth and John Baird Henderson, carrying on business in co-partnership as shipowners under the name, style and firm of H. Hogarth at No. 24, St. Enoch Square. in Glasgow, instituted a suit in this Court being suit No. 358 of 1924, against the Mitsui Bussan Kaisha, Limited praying for the recovery of a sum of Rs. 10,333-5-4 as damages for detention of a certain vessel named ' Baron Jedburgh ' and of a further sum of Rs. 31,666-10-8 as demurrage. The said suit was based on a charter party dated the 26th November 1930, and made between Messrs. Graham and Co. as agents for the owners of a vessel, the name of which was not then declared, and the defendant company. In the said charter party, the name of the owner was also not disclosed. The agreement was that a first class steamer to carry 6,500 tons cargo, 10 per cent more or less, should receive on board at Calcutta at such dock, place or wharf as the charterers might direct, from the said charterers or their order, a full and complete cargo of coal bulk, and being so loaded, should with such cargo proceed with all possible despatch under steam to Colombo and should there deliver the said cargo. By said charter party the defendant company agreed to ship or cause to be shipped the said cargo and also agreed that the said cargo would be shipped at Calcutta and despatched to the port of destination within 18 weather working days (Sundays and holidays excepted), such lay days not to count until the said steamer should be in berth as ordered by shippers, provided that the usual 24 hours' notice of readiness had previously been given by the Master or Agents, the said steamer having been duly entered at the Custom House, but not before 1st February, 1921 unless with the said charterer's consent, and the steamer being ready. The name of the vessel (Baron Jedburgh) was declared at a later date. The defendants after the institution of the said suit applied under the provisions of Section 19 of the Indian Arbitration Act for an order for stay of proceedings in the suit, inasmuch as the charter party contained an arbitration clause. This application was opposed by the then plaintiffs, but an order was made on the 8th April, 1924, by this Court staying all proceedings in the said suit. The matter then went to arbitration. In the course of the proceedings before the arbitrators, it transpired that the owners of the vessel 'Baron Jedburgh' which, as stated above, had been declared in term? of the charter party, were the Hogarth Shipping Co., Ltd. and not Messrs. H. Hogarth and Sons, who were the plaintiffs on record in the suit. The discovery came about in thi9 manner. On the 25th September, 1924, Messrs. Orr Dignam and Co., the attorneys for the defendant company, informed Messrs. Pugh and Co., the attorneys for the plaintiffs by a letter bearing that date, that they bad inspected the register of the said S.S. ' Baron Jedburgh,' which was then in the port of Calcutta, and that such register showed that the owners of the said vessel ware the Hogarth Shipping Co., Ltd. The said charter party was expressed to be made between Messrs. Graham and Co. as agents for the owners of the good steamer called a first class steamer etc. and the defendant Company as charterers and it was at first believed that H. Hogarth and Sons were the owners of the vessel. On the said discovery being made, it became necessary to consider the position and on or about the 8th January, 1925 an application was made to this Court on behalf of the original plaintiffs for an order that the real owners of the vessel, the Hogarth Shipping Co., Ltd. be either added as co-plaintiffs or be substituted as plaintiffs in the place of the plaintiffs above-named and that the Cause title and register of the suit may be amended accordingly. Upon the said application being made, the following order was made on the 14th of January, 1925: ' It is ordered that the said plaint and the register of the suit be amended by striking out from the cause title hereof the names and descriptions of the plaintiffs and substituting in lieu thereof the following words ' Hogarth Shipping Co. Ltd., a company registered under the English Companies Acts and having its registered office in Glasgow in Scotland and by making such other amendments in the body of the plaint as may be necessary in consequence of the aforesaid amendment'. At the time the said order was made, learned Counsel for the applicants made it quite dear that the applicants wanted the order at their own risk as to questions of limitation and otherwise. Thereafter the defendant company treating the suit as being a new one with new plaintiffs and being desirous of having the questions raised determined by the Court, tendered a written statement which was ordered to be filed subject to all just exceptions. This was on the 28th January 1925. Thereafter the arbitration proceedings went on and at the meeting of the arbitrators held on the 30th January, 1926, the defendant company's solicitors questioned the jurisdiction of the arbitrators in view of the events which had happened. The arbitrators, however, decided to proceed with the arbitration and they made their award on the 14th March, 1925.

3. It is now contended on behalf of the defendant company that the said award is bad, inasmuch as there had been no stay of proceedings in the suit in which the Hogarth Shipping Co., Ltd. were the plaintiffs and as no arbitrators had been appointed to decide any dispute between the present parties to the suit and, secondly, that assuming that the arbitrators had been validly appointed, the award is bad owing to the pendency of this suit [See Doleman v. Ossett Corporation [1912] 3 K.B. 257] and thirdly, that there was no legal evidence before the arbitrators upon which they could have made the award.

4. Now, id appears to me on an examination of the entire record of this suit that owing to a bona fide mistake the names of the partners in the firm of H. Hogarth and Sons had been inserted as the plaintiffs, whereas the real plaintiffs ought to have been the Hogarth Shipping Co., Ltd. (See in this connection the affidavit of D. H. Wilmer dated the 8th January 1925), and that it is because of this mistake that the Court was induced to make the order of the 14th January, 1925 referred be above. The result therefore was that after the order of the 14th January 1925, the Hogarth Shipping Company, Ltd. were, subject to questions of limitation, to be treated as if they had been described as plaintiffs in this suit from the very start. If I am right in this conclusion, it follows that the Hogarth Shipping Co., Ltd. were entitled to take advantage of and proceed under the order of the 8th April, 1924 (See The Duke of Buckuch [1892] P. 201] The cause of action arose under the charter party dated the 26th November 1920 in which the names of the real owners were not mentioned and though the names of the partners in the firm of H. Hogarth and Sons who, I am informed, were the agents were originally by mistake put on the record as plaintiffs, the real owners of the vessel ' Baron Jedburgh ' were still the real plaintiffs. It follows also that looking into the substance of the thing and having regard to the events which had happened, the arbitration clause could only have reference to a dispute between the real owners of the vessel,' Baron Jedburgh ' and She defendants (the existence of be dispute is beyond question on the; materials before me) and that it is this dispute that Messrs. Brown and Edwards. had been appointed to decide. In this view of the matter, I must hold against the applicants and find that the said arbitration proceedings were rightly continued after the order, of the 8th January, 1925, and that the award cannot be attacked on the first two grounds referred to above. As regards the third ground, it appear; on the evidence that the arbitrators were asked to award damages at the demurrage rate and that there was no evidence on behalf of the charterers to show that the demurrage rate should not be; adopted for the assessment of damages for detection. The third ground taken also fails and the result therefore is that the application must be dismissed. There will, however, in the peculiar circumstances of the case, be no order for costs.


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