Vessel Owners' Towing Co. v. Taylor

Mr. Justice Magbudeb delivered the opinion of the Court: 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 as captain does not of itself give him the right to act as attorney for the owner before arbitrators appointed tó 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 on Arbitration and Award, pages 117 and 118 and cases there cited; Bussell on Arb. (6th Ed.) page 176). 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’s Actions and Defenses, 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 et al. v. Whitmore et al. 75 Ill. 24, we said: “The doctrine is well established, that, where an arbitrator proceeds entirely ex pan'te, without giving the party against whom the award is made any notice of the proceeding under the submission, the award is void.” ' We are, therefore, of the opinion that it was the duty of the arbitrators in this case to see to it that all the parties to the submission had" notice of the time' and place of their'meeting. They did not perform this duty. They gave notice to Higgie, the president of the Towing Company, in whose favor the award was rendered. They gave no notice to appellee, the party against whom the award was made, nor did they require Higgle to give appellee such notice. They contented themselves with assuming that appellee knew of the hearing, because the man, who had been captain of his schooner, was present with certain testimony. It is claimed,, however, that it makes no difference whether notice is given by the arbitrators, or by one of the parties, or in some other way, if it be true that there was notice. It is said that “it is the fact of notice, which alone appears to be essential.” (Morse on Arb. and Aw. 118.) Even if this be so, the proof is not clear that appellee had notice from any source. His own testimony is positive and emphatic not only that he was not notified, but that his inquiries failed to elicit any definite information as to the time and place of the meeting of the arbitrators. The testimony of' appellant’s president, who is interested in sustaining the award, has reference to casual remarks, made by him to appellee upon the street and upon the occasion of accidental visits by appellee to the main office of the Towing Company. Higgle does not claim that he gave any formal written notice to Taylor. • Even if the presence before the arbitrators of Murphy, the captain of Taylor’s schooner, could be regarded as the presence there of Taylor himself, it is not clear that Murphy represented Taylor at the taking of all the testimony. Carey, one of the arbitrators, says: “Mr. Murphy was present when some of the testimony was given by the Vessel Owners’ Towing Company; I can’t say how much; I don’t know whether he knew when it was taken.” Again, while the hearing was in progress, Keith, one of the arbitrators, went to Milwaukee, and, during his absence from Chicago, one of the witnesses was examined by Carey, the other arbitrator. Higgle swears, that he asked appellee’s permission to have the witness examined in Keith’s absence, and that appellee consented to it. Appellee denies this in the following words: “Captain Higgie never said anything to me that he wanted to take the testimony of a witness before Captain Carey while Captain Keith was away.” In Wood v. Helme, supra, it appeared that during the examination and hearing, - one of the arbitrators absented himself, and it was held that such absence invalidated the award, on the ground that the arbitrators did not act together. Each party is not only entitled to be present when witnesses or arguments are heard, but each is entitled to have his case submitted to all the arbitrators. (Morse on Arb. and Aw. 151, 152, 117). In Smith v. Smith, 28 Ill. 56, we said: “It is a rule that all the arbitrators must act and act together. They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all." For the reasons here stated, we think the Appellate Court was right in reversing the decree of the Circuit Court and directing that court to enter a decree setting aside the award. The judgment of the Appellate Court is affirmed. Judgment affirmed. Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.