COMPAGNIE COMMERCIALE DE TRANSPORTATION DE VAPEUR.
Ross et aZ.v.CoMPAGNIE COMMERCIALE DE TRANSPORTATION DE VAPEUR;
(Circuit Cov,rt. JiJ. D. Louilliana. Februarv"l6, 1891.)
A charter-party provided that any question arising between the owners or the master and cbarterersshoU;1d'be referred to the: arbitratlbn, committee of the,New Orleans Maritime Association, "or, at the master's option, to ,,:wo arbitratQrs," chosen in a manner therein set forth. HeW, that, on the master'il refusal to elect 110 arbitrllltJ0q. (lOuld be had; the only remedy for , case bemg Buit fat damages for ,breach ot W subml.t, or 8ult unon their cause 'of action. ' " \ .,. "
TO SUBMIT'"-ARBJTRATION. " ,
. .,.·. "
'1!h.os. J. Serwm.es, for defe;ndant.
.". ;,.' , Horiurf, for
'Btiiri;GS, This cause is on trial before the court, 'a jury having been waived. A question has cQme up8i$ to the validity, and binding force ,of All' award by arbHrl!-tors, and the attorneys by agreement tOJpe lury, The.;pe.rEngland" a,charter-plu1y with reference to the La Gaule, bytheJterrns of which the steam-ship was, among, other things, ta.load or take. on her cargo at New Orleans. The charter-party contained this provision: ' .' '. , i,'J "
arise previous to sailing of loadmg by which the owners or the master and charterers become at vanance as to theiI:respectiverights and 'd tItles;· the satne shall; I there referred' to the arbitration of. New, OrlEjal}8 ()r. at master'8optlOn, to two appointe(} by, tpe maste.r, and the other by the charterers or 'their age'rits. In case of disagreement, tlIesetwo arbitrators shall choose an umpire, who shall, decide. It is agreedtllatthe committee of the maritime assoCiation or the arbitrll.torsa'ndtheii'umpire shall have the . power 'of amicable compounders, andtbeir decision shall be binding on both parties, andwitbout appeal." , t' .
While tbevessel was 'loading, a. question did' arise. The plaintiffs 'addressed: to the defendant's agents in New Orleans the following notes: ., ,.. . "NEWQRLE4NS;14th April,1885. "Messrs. S. V. FomariS & Co., Agents Ole. Ootnm.erciale-GENTLiHEN:
We beg to notify you that we cl;dm an arui'tration, as provided in the,charter of S. S; La Gaule,on points in dispute. ' . .' , ,
tion provided for in. the cbarter of yO,ur.vessl:Il to de<;ide the :qu6liticim same nowin please us yOll allowed you of selecting atl arbitrati(m: committee outside that of the'm,aHtime Ass'u. . Hespectfully,·"·' . [Signed]
NEW ORLEANS. 14th Aprll"l885. "Oapt. Renaland, B. S. L(L Gaule-DE4n. 8m: Allj we claim the,arbitra-
FEDERAL REPORTER, vol. 45.
To which the defendant returned the following reply: NEW ORLEANS, April 15th, 1885. "C. "To Mess. Ross, & Co., E. V.-GENTLEMEN: Referring to your letter of the 14th inst., we beg to say that we decline your offer for the proposed arbitration. Yours, resp'y, [Signed], "S. V. FORNARIS & Co." The committee of· the maritime association addressed the defendant the following note: "D. NEW ORLEANS, April 18th, 1885. "Messrs. 8. V. Pomaris & Co., Agts. 8. 8. La 9aule-GENT'N: I beg to inform you that the committee on arbitration of this association, to whom is the matter in dispute, per charter of said steamer with Ross, Keen &, Co., will take consider.ation of this case on Monday next, 20th lnst., at 12 o'clock noon, when the' Clommittee will be pleased to hear the evtdenceofs,uch witntlsses as you may produce. I am, dear sirs, "Yours, respect'y, [Sjgned] . "L. LA COMBE, Sec't'y." To whichthe'defendant replied as follows: "E. NEW ORLEANS, April 18th, 1885. "To the N. O. Maritlme.Association, . In answer to your communication of this date, we beg to refer you to our letter mider date 15th inst., addressed to Messrs. Ross, Keen & Co., which reads as follows: 'Referring to your letter of the 14th lnst., we beg to say that we decline your offer for the proposed arbitration. ' "Yours, respect'y, [Signed] , "S. V. FORNARIS & Co., Agts." The committee of themllritime association, as arbitrators, after notice proceeded with the arbitration parte, and made an award. Upon this award, as well as upon claims involved in other matters, this .suit is brought. ' · " It is to be observed that by the terms of the agreement of submission the master (the defendant) was to have an option betweell two boards of arbitrators, viz., the arbitration committee ()f the New Orleans Maritime two ar1?itrllt()rS,-one appointed by each party. This option the defendant never exercised. He was asked by the plaintiff to flo it,but he simply declined all arbitration. There is no provision in the agreement to submit which in such a state of things gave the plainrigl1t to elect these tw()b,oards. The plaintiff could not put into operation the procedure bya.rbitrators until the defendant had elected, or had signified he waived his right to elect. He never did elect, and never signified any intention of waiver. Under such a state of facts, after the defendant's refusal to participate in arbitration proceedings, therernedy of the plaintiff was a suit for damages' for a breach of the agreement to submit, or a stiitup()u his calise. of· action, as if there had, been nQ agreement to arbitrate. '. There could be no award binding ripon the defendant. My opinion, therefore, is that the award is not binq.,ing upon the defendant.
CARR V. :nUll:.
CARR ". :FIFE
(Cfrtmft Court, D. Washington, W. D. February 28,1891.)
Where the jurisdiction of a circuit court is challenged on the ground that the record does not show the value of the property in controversy to exceed $2,000, that particular point being made for tbe first time after a final hearing and decree, the prl>perty being in fact of sufficient value, the court will n()t deny its jurisdiction, but will allow the omission in the record to be supplied by the filing nunc pro tunc of a proper affidavit. (8IIZlabu8 btl the Oourt.)
AMOUNT-AMENDMENT OIl' RECORD.
In Equity. Motion to remand. ThomCUJ Carroll and John Arthur, for plaintiff. qal'If-Bh,a Par8lm8' for defendants.
HA;NFORP,;;f. The plaintiff has heretofore moved to remand this cause to thlj) superioJ,' court of Pierce county, on the ground that it is not a case
withip jurisdiction of this court. That motion was, after full argumeAt, and the reasons therefor are given in my opinion upon the merits,now on file. 44 Fed. Rep. 713. And now, after the final hearing and in the case, the: plaintiff has filed a second motion to remand, for the the record does not show affirmatively that the value of the property in controversy is sufficient to bring the case within the risdicti.qn of court,-a point not suggested by the first motion. It is that the value is 'not in fact sufficient. On the contrary, is, and was at the time ,the: suit was commenced, worth many tim.es $2;000, amt that fll,.ct h!1s often been melltioned and urged upon the at,. tention of the court by counsel on both sides; but it is said that there is an omission in the record of any showing as to the value. The motion to remand will have to be denied. It cannot be remanded-that is, sent back-to the superior court of Pierce county, for the reason that it did not come by removal from that court. I have already decided that the superior court never acquired jurisdiction of this case, and of course it cannot be remanded to the territorial court in which it was begun, for that court has ceased to be. Besides, there is no lack of jurisdiction in this court; there is only an omission in the record of a fact essential to the JurisdictiCln; and the proper thing to do is ,not to destroy any rights. but to supply the omission, and in denying the motion I will makeandorder allowing that to be done. On the day the hearing commenced it was definitely admitted by counsel that the land was of sufficient value, and it was agreed that an affidavit showing the value should be filed, and be considered as then filed, and on that understanding the trial was proceeded with. The failure to actually place the affidavit on file has been through inadvertence; therefore, I will order thaI. ,the proper affidavit, wh.en made and be fi,led nunc prQ a8 of the first day 'of the tnal,:and that the motlOn to remand· be de;.u,ed v.45F,1;1oA---14 '