In connection with a contract for the sale of goods a dispute had arisen between the parties as to whether a certain appropriation was good or not. The question was referred to arbitration under the clause in the contract, and a special case was stated for the opinion of the Court, in which certain questions were put to the Court, including one whether under the terms of a certain contract there could be appropriation of a cargo shipped on board the ‘C.’ to the buyers at a time when the vessel was wrecked and the cargo had become a total loss. The Court answered those questions in the negative. Thereupon the matter went back, and the arbitrators made an award in which they stated that while they ‘unreservedly accepted the said answers upon the construction of the contract as a matter of law, apart from the custom of the trade,’ they nevertheless found that there was a long-established and well-recognised custom of the trade by which in the circumstances of this contract there was an appropriation of the cargo to the buyers.
Held ( rev. decision of the Court of Appeal) that under a submission to decide disputes arising out of the contract it was competent for the arbitrators to determine the existence of a custom attaching to the particular trade, inasmuch as it was impossible without introducing the custom to decide what were the rights and liabilities under the contract of the respective parties.
Judges:
Earl Loreburn, Lords Atkinson, Parker, Sumner, and Parmoor
Citations:
[1915] UKHL 787, 53 SLR 787
Links:
Jurisdiction:
England and Wales
Contract
Updated: 26 April 2022; Ref: scu.620703