CO129-497 - Public Offices - 1926 — Page 355

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this charter

1919, when a dispute first arose,

no longer existed. The dispute was not one, of which it could be predicated that it was one arising under "this charter," since that had terminated by frustration a year before. An arbitration clause is not a phoenix, that can be raised again by one of the parties from the dead ashes of its former self. By its very terms, as well as by the fact that it was only one part of the indivisible charter, it had come to an end also, and it is unnecessary to consider in what terms, if any, a clause might have been framed which would have saved the clause alive in the event of the frustration of the adventure and the charter. It may be noted that in practically all the numerous cases of frustration of charters by requisitioning during recent years, the charter must have contained an arbitration clause, yet no point of this kind has apparently been raised on any ordinary form of charter. The cases in general afford little support to the idea that any form of clause would survive the contract as a whole (see Grey v. Tolme, 31 T.L.R. at p. 138, and In re Hohenzollern Co., 54. L.T.R. at p. 597, and conversely Kennedy v. Barrow in C.A. reported in Hudson on Building Contracts (ii. 415).

Sundry special authorities were cited in this connection, but they do not carry matters any further. They are either cases of repudiation and rescission, or of approbation and reprobation, or of continuing obligations under a contract still in being. In the Johannesburg case, it was admitted on the pleadings that the contract had been repudiated and the matters in dispute arose out of this, but at 1909, Sess. Cas. H.L. p. 53, the Lord Chancellor is reported as saying: "If the cause of action be that there has been a repudiation or breaking of the contract, in the sense that the contract has been frustrated by the breach, then it would not be within the arbitration clause." Whatever exactly this sentence Con- means, at any rate it does not help the appellants now. versely in Sanderson v. Armour (1922, Sess. Cas. H.L.[117), though repudiation of the contract by the defenders was pleaded by the pursuers and the case had, of course, to be dealt with on the footing that this would be duly proved it was denied, and the defenders relied on the arbitration clause and were held entitled to it. A mere allegation that they had thrown the contract up could not deprive them of the right to have the dispute dealt with by the tribunal constituted by it. In Scott v. Del Sel (1923, Sess. Cas. H.L. 38) Lord Cave, L.C., expressly laid aside the question of frustration, since by virtue of its terms the contract continued in existence even in the events which had happened. As for the case of Jureidini (1915, A.C. p. 499), insurers pleaded the absence of an award as to quantum only as a fatal non-full- ment of a condition to the right to sue on a policy. As they had themselves repudiated the claim in toto, it was held that they could not insist on the absence of an award. It is a case of approbation and reprobation (see Macaura's case, 1925, A.C. at p. 631).

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Their Lordships' conclusion is that the arbitrator acted without jurisdiction and that the action on his award ought to have failed, and they will humbly advise His Majesty that the two judgments below should be set aside and that judgment in the action should be entered for the appellants, with costs here and below.