Gujarat High Court
Transbulk International Shipping Llc vs Arcelor Mittal Nippon Steel India Ltd on 18 June, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/IAAP/95/2021 ORDER DATED: 18/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 95 of 2021
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TRANSBULK INTERNATIONAL SHIPPING LLC
Versus
ACELOR MITTAL NIPPON STEEL INDIA LTD
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Appearance:
MS PAURAMI B. SHETH(841) WITH MR ASHWIN SHANKER, MS RIDHI
NYATI & MS SHWETA SADANANDAN for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 18/06/2021
ORAL ORDER
This petition was posted yesterday and following order came to be passed by the Court.
"Leave to amend name of the respondent in the title of the petition from "M/s. Acelor Mittal Nippon Steel India Limited" to "M/s. Arcelor Mittal Nippon Steel India Limited". Amendment shall be carried out forthwith.
This petition under Section 9 of the Arbitration and Conciliation Act, 1996 wherein the prayer is to attach the cargo on-board the vessel.
However, it could not be stated with certainty that the vessel from which the cargo is to be unloaded is within the territorial jurisdiction of this Court or has reached Hazira.
In that view, put up on 18th June, 2021."
1.1 Today, learned advocate Ms.Paurami Sheth for the petitioner stated that Vessel containing cargo is within the territorial limits of this Court, having reached the Port at Hazira, Gujarat.
1.2 Heard learned advocate Ms.Paurami Sheth for the petitioner.
Page 1 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021C/IAAP/95/2021 ORDER DATED: 18/06/2021
2. This petition is filed invoking provision of Section 9 of the Arbitration and Conciliation Act, 1996 seeking certain interim measures in respect of the proposed arbitration.
2.1 The prayers read as under.
(a) direct attachment of 44,000 Mts of iron ore pellets to be discharged from the vessel mv MANA (IMO No.9748849) from 16th June, 2021 presently at Hazira Port and further direct for the status quo, preservation, interim custody or sale of the said Cargo pending the issuance of the arbitration Award/order;
(b) direct the respondent to furnish security in favour of the petitioner for the sum of USD 327,151.74 along with interest @ 5.33% per annum from the date of this petition till payment/realisation-pending the issuance of the arbitration Award;
(c) grant ex-parte ad-interim reliefs in terms of prayers (a) and (b) above.
3. The petitioner is a ship owning company. It is its case that it entered into a Charter Party Agreement dated 04th March, 2021 with respondent for charter of vessel MV Riva Wind, for carriage of 40,000 MTs +/- 10% (In charterers option) and 50,000 Mts +/- 10% of Limestone or Dolomite from a Port at UAE to Hazira, India. The Charter Party Agreement, copy of which is produced on record of the petition, contains certain clauses relating to Load Rate, Discharge Rate, Nor Tendering and Turn Time, Freight Rate, Freight Payment, Demurrage etc. Clause 17 in the said Charter Party Agreement is an arbitration clause, reading as under.
"17. GENERAL AVERAGE & ARBITRATION CLAUSE Page 2 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021 C/IAAP/95/2021 ORDER DATED: 18/06/2021 GENERAL AVERAGE SHALL BE SETTLED IN LONDON IN ACCORDANCE WITH YORK ANTWERP RULES 2004 AND ANY SUBSEQUENT AMENDMENT THEREOF ARBITRATION IN LONDON IN ACCORDANCE WITH LMAA TERMS TO APPLY, THE ARBITRATORS SHALL BE COMMERCIAL MEN ENGLISH LAW TO APPLY SHOULD THE VESSEL PUT INTO ANY PORT OR PORTSLEAKY OR WITH DAMAGE, THE CAPTAIN OR OWNERS SHALL WITHOUT DELAY INFORM THE CHRTRS THEREOF. CAPTAIN TO EMAIL IN CASE OF PUTTING IN ANY WHERE."
3.1 The petitioner claims from the respondent the total amount of USD 327,151.74 with interest in relation to freight and demurrage. The case of the petitioner regarding its claim is thus,
(a) The vessel arrived at the load port Mina Saqr and tendered NOR on 23.02.2021 at 0600 hrs. 52,850 MTs of Cargo came to be loaded on the Vessel. At the Loadport, from the permissible laytime of 3.5233 days, the Respondent used only 1.6458 days for completion of the loading operations. As result, the Respondent earned Despatch @ USD USD 9,250 per day, amounting to USD 17,366.88 (time saved 1.8775 days);
(b) On 26.02.2021, the petitioner raised a Freight Invoice dated 26.02.2021 for a sum of USD 502,405.31. As per Clause 10, 100% freight was payable within 2 days of raising invoice and releasing the bills of lading. On 03.03.2021, the Respondent remitted a sum of USD 502,345.31 towards the freight leaving a balance of USD 60;
(c) The Vessel arrived at the discharge port Hazira and tendered NOR on 03.03.2021 at 0100 hrs. As per aforesaid Clause 7 of the Charter Party, the allowed laytime for discharge was 3.3678 days. The respondent however, completed the Page 3 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021 C/IAAP/95/2021 ORDER DATED: 18/06/2021 discharge in 17.4750 days, thereby exceeding the laytime by 14.1072 days. The respondent thus, is liable to pay demurrage @ USD 18,500 per day amounting to USD 260,983.20.
3.2 The petitioner has annexed copies of Load Port Statement of Facts and Laytime calculations. The copy of the freight invoice and the bills of lading are also annexed in support of the above facts.
3.3 It is thus stated that final freight bill dated 23rd March, 2021 along with Load Port and Discharge Port Laytime calculations was emailed to the respondent. The respondent, acting through its brokers, responded on 09th April, 2021 and confirmed that Load Port and Discharge Port calculations were in order. The above emails of the petitioner dated 23rd March, 2021 and response from the respondent dated 09th April, 2021 are produced.
3.4 It appears that by email dated 14 th April, 2021 the respondent sought for revision in the calculations. It is the case of the petitioner that since once the respondent had confirmed the calculations, it was surprising that revision was requested subsequently. After correspondence, however, it appears that the petitioner confirmed the respondent's revised Load Port Laytime calculations and issued revised final freight invoice dated 23rd March, 2021 for a sum of USD 237,151.74 towards freight and demurrage. This bill is also annexed.
3.5 It is the case that despite reminders for Page 4 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021 C/IAAP/95/2021 ORDER DATED: 18/06/2021 payment, no payment was made by the respondent nor the respondent responded. As per Clause 12, payment was to be made within 60 days of the discharge. The discharge was completed on 21st March, 2021, there the payment was required to be made, as per the case of the petitioner, by 20th May, 2021.
3.6 On 26th May, 2021 the respondent was called upon the respondent to clear the dues under the Charter Party Agreement latest by 02nd June, 2021. On 01st June, 2021 the respondent sated through its brokers that dues are submitted to accounts and will be cleared by 11th June, 2021. It appears that one more reminder was sent by the petitioner to clear the dues, but in vain. It was conveyed to the respondent that unless the payment is made, petitioner is intended to invoke the arbitration.
4. The petitioner has submitted that the above dues are required to be cleared from the respondent. It is pleaded that respondent is owner of cargo of 44,000 MTs of Iron Ore Pellets which is to be discharged from Vessel mv MANA (IMO No.9748849) from 16th June, 2021 at Hazira Port. For dues claimed as above, in the present petition, the petitioner has sought to attach the said cargo as security towards petitioner's claim in the arbitration.
4.1 It may be stated that the total claim of the petitioner as mentioned in prayer clause also includes the cost to the tune of USD 90,000 towards arbitration and arbitrator's fees and legal expenses.
Page 5 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021C/IAAP/95/2021 ORDER DATED: 18/06/2021 4.2 Section 9 of the Arbitration and Conciliation Act, 1996 deals with interim measures which may be ordered by the Court for protective measures during the arbitration proceedings or before the commencement of the arbitration proceedings. It provides that the Court may pass direction for interim measures and protection in respect of the matters including to secure amounts in dispute in the arbitration as per Section 9(1)(ii)(b). Under clause
(e) which is wider, such other interim measures as may be deemed just and convenient by the Court could be passed.
4.3 Relying on the above provision, learned advocate for the petitioner submitted that the scope of Section 9 of the Arbitration Act is wide and the Court has discretion to grant a range of interim measures for protection of the rights of the parties in the arbitration. Such measures for protection as may appear to the Court to be just and convenient, could be granted, it was submitted.
5. The facts highlighted above prima facie suggest that the petitioner has claim against the respondent under the aforementioned Charter Party Agreement in respect of the balance freight and demurrage. Learned advocate for the petitioner made a statement that cargo which is to be attached is presently lying at Hazira Port, Gujarat and therefore, this Court has jurisdiction.
6. Notice to the respondent, returnable on 01 st Page 6 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021 C/IAAP/95/2021 ORDER DATED: 18/06/2021 July, 2021.
7. By way of ad-interim relief it is directed that status quo shall be maintained in respect of 44,000 MTs +/- 10% of Cargo Limestone and/or Dolomite to be discharged from Vessel mv MANA (IMO No.9748849) at Hazira Port. It is further directed that the said cargo shall not be dealt with in any manner.
8. It will be open for the respondent to approach this Court even prior to the returnable date in respect of the order passed as above.
9. Registry shall serve copy of this order to the Port Authorities at Hazira Port for implementation of this order on the email addresses [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], operations- [email protected], [email protected], as provided by learned advocate for the petitioner, today itself.
10. The petitioner is permitted to serve the copy of this order through the mode of email to the respondent.
(N.V.ANJARIA, J) ANUP Page 7 of 7 Downloaded on : Sat Jun 19 03:17:25 IST 2021