Vessel Owners' Towing Co. v. Taylor

• Decision Date: 15 November 1888
• Citation: 18 N.E. 663,126 Ill. 250
• Parties: VESSEL OWNERS' TOWING CO. v. TAYLOR.
• Court: Illinois Supreme Court

126 Ill. 250

18 N.E. 663

VESSEL OWNERS' TOWING CO.

v.TAYLOR.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, First district.

Bill of complaint by Joel V. Taylor to set aside an award rendered upon an agreement entered into between himself, the Vessel Owners' Towing Company, and J. C. Dunbar, to determine the liability for a collision occurring August 19, 1885, between the complainant's schooner Floretta, the tug Union, belonging to the Vessel Owners' Towing Company, and the schooner Robert B. King, of which Dunbar was master. The defendant Dunbar defaulted, and the Vessel Owners' Towing Company pleaded the agreement to arbitrate, and the award rendered thereunder. The circuit court refused to set aside the award. The decree of the circuit court was reversed by the appellate court, and the Vessel Owners' Towing Company appeals.

Schuyler & Kremer, for appellant.

William H. Condon, for appellee.

MAGRUDER, J.

The proof in this case shows that the hearing before the arbitrators was had in the back room of the office of appellant, one of the interested parties. The award, afterwards rendered, relieved appellant of all responsibility for the collision between the vessels. The examination of witnesses appears to have been begun on August 26, 1882, and to have been conducted at different times during several days thereafter. The bill alleges as the main reason for setting aside the award, that the appellee Taylor was not notified of the hearing before the arbitrators, and did not appear before them, or authorize any one to appear for him. It is established beyond question that neither of the two arbitrators who made the award gave the appellee any notice, either written or verbal, of the time when or place where they were to meet to hear evidence. It is also clearly proven that the appellee himself did not appear in person at the hearing. Murphy, who was the captain of appellee's schooner at the time of the collision, was present on one or two occasions before the arbitrators, and introduced some testimony. But appellee denies that Murphy had any authority to represent him in the matter of presenting his claims at the arbitration. The captain of a vessel may be the special agent of the owner in all matters fully embraced in the scope of his appointment, and for all purposes connected with the ordinary employment of the vessel; but his position of captain does not of itself give him the right to act as attorney for the owner before arbitrators appointed to decide upon the question of damages resulting from a collision. Hence the question is directly presented whether the parties to an agreement for submission are entitled to notice of the hearing from the arbitrators themselves. In England the practice has been for the party wishing to go on with the reference to call upon the arbitrator, deliver to him the submission, and request him to appoint a meeting. The arbitrator gives to the party so applying a written appointment, specifying the time and place for the parties and their witnesses to appear, a copy of which appointment the party so receiving it serves upon his opponent. ‘In the United States the duty of giving notice of the time and place of hearing seems to belong to the arbitrators. They have it in charge to see that sufficient notification is made to each party.’ Morse, Arb. 117, 188, and cases there cited; Russ. Arb. (6th Ed.) 179. Unless it was the intention of the parties that the arbitration should proceed without their presence, ‘the arbitrators must give both parties notice of the time and place of meeting, and they have no authority to proceed ex parte.’ 6 Wait, Act. & Def. 522. In Wood v. Helme, 14 R. I. 325, where the submission was silent as to notice, the court said: ‘Without question it was the duty of the arbitrators, under the submission in this case, to give due notice to the parties of the time and place for hearing the cause before proceeding therein.’ In Ingraham v. Whitmore, 75 Ill. 24, we said: ‘The doctrine is well established that, where an arbitrator proceeds entirely ex...