Calcutta High Court
Andaman Seafoods Pvt. Ltd vs The Owners & Parties Interested In The on 2 July, 2008
Author: Patherya
Bench: Patherya
ORDER SHEET G.A.No. 2090 of 2008 G.A.No. 2007 of 2008 A.S.No. 3 of 2008 IN THE HIGH COURT AT CALCUTTA Admiralty Jurisdiction ORIGINAL SIDE ANDAMAN SEAFOODS PVT. LTD.
-Versus-
THE OWNERS & PARTIES INTERESTED IN THE VESSEL APPEN ANITA & ORS.
Mr. Tilak Bose, Adv. Mr. A. Dey, Adv.
For the applicant.
Mr. Ratnanko Banerjee, Adv. Ms. Lopita banerjee, Adv.
For the plaintiff. Before:
The Hon'ble Justice PATHERYA.
Date: July 2, 2008.
The Court: This is an application filed by the owner of vessel M.V. Appen Anita for vacating the order dated 27th June, 2008 and subsequent orders passed.
The case of the owners of vessel M.V. Appen Anita is that the affidavit for arrest of vessel M.V. Appen Anita was affirmed on 25th June, 2008 and the order was passed on 27th June, 2008. The said order dated 27th June, 2008 has been passed on the premise that vessel M.V. Appen Anita is a sister vessel of M.V. Tiger Power against whom the plaintiff has a claim. In fact, on 25th June, 2008 vessel M.V. Tiger Power was in the waters of the Calcutta Port and between 26th June and 28th June, 2008 it was at the port of Haldia. Therefore, it was within the territorial 2 waters of India and steps should have been taken to arrest vessel M.V. Tiger Power and not vessel M.V. Appen Anita. The said two vessels are in no way connected with each other as the owners of both vessels M.V. Appen Anita and M.V. Tiger Power are separate and distinct. Both the vessels have been registered at different places, namely, Germany and Cyprus and in no way are connected with each other. Therefore, the premise on which the said orders were sought are non-existent. The action of the plaintiff is mala fide as will be exhibited from steps taken to arrest vessel M.V. Appen Anita and not vessel M.V. Tiger Power which was in the waters of Calcutta at the time when the order was passed.
By virtue of the order passed, the owner is to suffer damages as the charterers have refused to pay the hire charges of the said vessel as will be borne from the electronic mail dated 30th June, 2008. The pleadings in paragraph 33 of the affidavit of arrest is also not correct as vessel M.V. Tiger Power was well within the jurisdiction of this Court on 27th June, 2008. In the event, the order of arrest is continued the plaintiff be put on terms and provisions for security as per Article 6 Sub-article 1 of the 1999 Convention, be made. Therefore, the order dated 27th June, 2008 and subsequent orders passed be vacated or in the alternative, provisions for security be made.
Counsel for the plaintiff submits that there is no dispute that a claim subsists between itself and the owners of vessel M.V. Tiger Power. It was of the belief that vessel M.V. Appen Anita and vessel M.V. Tiger Power were sister vessels and 3 it is only on that premise that the affidavit of arrest was filed and orders sought. From the documents produced in Court today, it does appear that the registered owners of the said two vessels are different. It was not aware that vessel M.V. Tiger Power was berthed in the waters of the Calcutta Port on 27th June, 2008. M.V. Appen Anita is connected with the said consignment as the consignment has been loaded on this vessel and despatched to Calcutta. Therefore, the orders sought were justified.
Having considered the submissions of the parties, the premise on which the order dated 27th June, 2008 and subsequent orders were passed no longer exists as documents have been produced to evidence that the registered owners of the said vessels are distinct, separate and independent. Neither of the said two vessels are connected with each other. The said two vessels are feeder vessels and are constantly arriving in the waters of the Calcutta port. In fact, on 27th June, 2008 when the order was passed, from the Shipping Times published by Exim India, it appears that vessel M.V. Tiger Power was berthed in the Haldia Port. Therefore, there was no reason for the plaintiff not to proceed against vessel M.V. Tiger Power and to insist on arrest of vessel M.V. Appen Anita. For the said reasons the order of arrest dated 27th June, 2008 and subsequent orders passed are vacated.
The application for arrest being G.A.No.2007 of 2008 stands dismissed and G.A.No.2090 of 2008 is disposed of. The 4 allegations made in the applications are not admitted as no affidavit-in-opposition has been filed.
Marshall is directed to communicate to the Master of vessel M.V. Appen Anita, Kolkata Port and Customs Authorities that the order dated 27th June, 2008 and the subsequent orders passed have been vacated.
The document of registration of vessel M.V. Tiger Power be kept on record.
Marshall, Master of vessel M.V. Appen Anita, Calcutta Port Trust, Customs Authorities and all parties to act on a xerox signed copy of this order on the usual undertaking.
(Patherya, J) A/s.