Viscount Finlay :-

This is an appeal against the refusal of the High Court in Bengal to set aside an award. Two questions arise.

(1) Whether, on the terms of the agreements between the parties, the arbitration was properly held in Calcutta instead of being held in London as on a dispute under a contract for the sale of jute.

(2) Whether the arbitrator was properly appointed as sole arbitrator under the Indian Arbitration Act.

The appellants are merchants and commission agents carrying on business in London, and the respondents are dealers in jute carrying on business in Calcutta. A document dated the 2nd June, 1914, was drawn up defining the "terms and conditions of business" between the respondents and the appellants. The respondents are described therein as the "shippers" and the appellants as the "importers", and the document deals with purchases of jute to be made by the appellants from the respondents and. with agency business to be conducted by the appellants for the respondents. The fifth clause provides that all contracts for the sale of purchase of jute were to be made upon and subject to the terms and conditions as set forth in the usual London Jute Association Contract No. 3 in force for the period of shipment, Clause 12 makes provision for arbitration in the following terms :

"Arbitration. - Any dispute between the Shippers and Importers which may arise upon a contract or contracts for the sale or purchase of jute made upon or subject to the rules of the London Jute Association as mentioned in clause 5 hereof, shall be decided by arbitration according to the rules of the London Jute Association.

Any other dispute between the Shippers and Importers which may arise out of or in connection with this Agreement shall be referred to arbitration in Calcutta in the usual way under the provisions of the Indian Arbitration Act before two arbitrators and their umpire."

The main question in dispute on this appeal is whether the present is a case which fell within the former or within the latter of these provisions for arbitration.

On the 8th July, 1914, the appellants and the respondents entered into a contract of that date for the purchase by the appellants from the respondents, on the terms of the London Jute Association Contract No. 3 of 250 bales of jute for shipment in July to Hamburg, at the price of £ 25 per ton c.i.f., "any dispute arising out of this contract to be settled by arbitration in London as soon as it may arise.'' There were eight other contracts in the same form. The terms of the London Jute Association Contract No. 3 referred to in these contracts provided in paragraph 6 (d) as follows :

"The contract to be considered cancelled for any portion not arriving, owing to loss of vessel or other unavoidable causes, but to be valid for any portion "that may be shipped or transhipped on seller's-account and arrive by any other vessel."

and in paragraph 13 as follows :-

"(a) Any dispute whatever arising out of, or in relation to, this contract or its construction or fulfilment, shall be referred to arbitration in London in accordance with the By-Laws of the London Jute Association."

The shipments under these nine contracts between the appellants and the respondents were made, as to 774 bales by the SS. "Rappenfel," and as to 681 bales by the SS. "Westmark", both German vessels. These vessels sailed from Calcutta on the 1st August, 1914, and drafts were drawn by the respondents upon the appellants for the price of the jute, and the documents were handed to the Eastern Bank, Calcutta. War broke out between England and Germany on the 4th August. The SS. "Rappenfels" was captured by a British cruiser and brought into Calcutta, where the jute was sold by the authorities. The SS. "Westmark" put into a Dutch port in the East Indies. The present case is concerned only with the jute which was on board the SS. "Rappenfels."

On the 2nd September, 1914, the appellants wrote to the respondents a letter with reference to the SS. "Rappenfels