Calcutta High Court
Tarsons Products Limited vs The Owners And Parties Interested In The ... on 2 May, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
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ORDER SHEET OD-6
IA No.GA-COM 1 of 2025
IN
AS-COM 1 of 2025
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
TARSONS PRODUCTS LIMITED
VS
THE OWNERS AND PARTIES INTERESTED IN THE VESSEL MV SOL
PROGRESS ( IMO NO: 9322865) AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 2nd May, 2025.
Appearance :
Mr. Krishnaraj Thaker, Sr. Adv.
Mrs. Sreenita Ghoshdastidar, Adv.
Ms. Sneha Singhania, Adv.
Ms. Rishita Sarkar, Adv.
for the plaintiff.
Mr. S .N. Mookerjee, Sr. Adv.
Mr. Shaunak Mitra, Adv.
Mr. Subhrajyoti Mukherjee, Adv.
Mr. Ashutosh Tiwari, Adv.
Mr. Souvik Kundu, Adv.
Mr. Abir Debnath, Adv.
. . . for defendant no.1.
The Court : The defendant no.1 is represented.
The plaintiff files two supplementary affidavits which are taken on
record.
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The plaintiff in the presence of the defendant no.1 seeks arrest of
the vessel being MV SOL PROGRESS (IMO NO. 9322865) on the ground
that the goods entrusted to the defendant no.1 for being carried from
Colombo to Kolkata were damaged and as such the defendant no.1 is
liable for the loss and damages caused thereto which gives rise to a
maritime claim under Section 4(f) of the Admiralty (Jurisdiction and
Settlement of Maritime Claims) Act, 2017 (hereinafter referred to as the
2017 Act).
The defendant no.1 objects to the same on the ground that it is not
liable for any maritime claim as contended by the plaintiff.
Before going into the detailed arguments advanced by the plaintiff
and the defendant no.1, the facts as alleged by the plaintiff are set out
hereunder:
1.The plaintiff placed an order for certain equipments (hereinafter referred to as the said goods) on Waldorf Technik GmbH being part of Hahn Automation Group Engen GmbH, Germany (hereinafter referred to as the Shipper).
2. The plaintiff entered into an agreement with the defendant no.4 for carriage of the said goods from Hamburg to Kolkata.
3. The said goods after a pre-shipment survey were packed in 12 wooden boxes and were made over to the defendant no.4 who on receipt thereof issued a clear bill of lading.
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4. The said goods so packed were carried from Hamburg to Abu Dhabi Terminal, Khalifa Port by the vessel MV EUGEN MAERSK (IMO 9321550). The goods from Abu Dhabi Terminal, Khalifa Port was carried to Jebel Ali Terminal by MV MARCHEN MAERSK (IMO 9632143). The goods from Jebel Ali Terminal was transported to Colombo by MV MAERSK BALTIMORE (IMO 9313917). All these vessels were owned by the defendant no. 2.
5. The goods were ultimately carried from Colombo to Kolkata Port by MV SOL PROGRESS (IMO No. 9322865) being the defendant no. 1 vessel.
The plaintiff says that it is not required to prove damages to have been caused to the goods by the negligence of the defendant no.1 when the goods remained in the custody of the said defendant for being transported once it is shown that the same were received in damaged condition. The plaintiff says that once it is found that the goods were damaged and the goods were in the custody of the defendantno.1 it is for the defendant no.1 to demonstrate that the same did not occur while the goods were in their custody. The plaintiff also says that the burden of proof in such a situation to demonstrate that the defendant no.1 is not liable for such damages rests on the said defendant. The plaintiff in support of its contention has relied upon the following judgments :
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1. AIR 1957 Cal 190 (Indian Trade and General Insurance Co. Ltd.
Vs. Union of India)
2. (1987) 2 LLOYD'S Law Reports 392 (Mitsui & Co. Ltd. And Another V. Flota Mercante Grancolombiana S. A. The Ciudad de Pasto, The Ciudad de Neiva)
3. (1989) 1 ALL ER 951 (Mitsui & Co. Ltd. And Another V. Flota Mercante Grancolombiana SA The Ciudad de Pasto, The Ciudad de Neiva)
4. (1999) 1 LLOYD'S Law Reports 176 (Oceanfocus Shipping Ltd. Vs. Hyundai Merchant Marine Co. Ltd.)
5. (1987) 2 LLOYD'S Law Reports 621 (THE "RUBEN MARTINEZ VILLENA")
6. (2018) UK SC 61 (Volcafe Ltd. and Others V. Compania Sud Americana De Vapores SA)
7. (1996) 7 SCC 127 (Videsh Sanchar Nigam Ltd.-Versus-M.V. Kapitan Kud And Others).
The plaintiff also relies on a Co-ordinate Bench judgment in Patanjali Foods Limited Vs. The Owners and Parties Interested in the Vessel MT PhILIPPA GLADYS IMO NO 9500352 delivered on 30 th September, 2024.
Relying on these judgments the plaintiff says that the law on this subject is very clear as will appear from the ratio laid down in the judgments cited above. The plaintiff is not required to establish the fact 5 that the goods were actually damaged while it was being carried from Colombo to Kolkata by the said vessel (defendant no.1). Only assertion will be sufficient for arrest of the vessel. Unless it is found that the maritime action which is one in the nature of rem should not be stayed because the ground on which the same is founded appears to be hopeless beyond doubt. The plaintiff's claim does not suffer from hopeless and as a consequence thereof is entitled to arrest of the said vessel as a measure of security of its claim.
The plaintiff also says that it had paid huge sum of money to procure the goods for being utilized in its laboratory. Due to non- installation of the machinery the plaintiff is suffering loss on day to day basis. Some of the goods were found to be deeply rusted when two of the wooden boxes wherein the same was packed were opened in the factory of the plaintiff in the presence of its shipper. The boxes in which the goods were packed and dispatched were found wet from outside at the time of taking delivery and on being opened accumulation of water accumulated inside the said boxes came up. Once this fact is established the plaintiff is entitled to arrest the vessel.
The maritime claim of the plaintiff therefore cannot be termed to be hopeless for which the arrest of the said vessel can be refused.
The plaintiff also submits that it is not required to go to trial to establish that damages had occurred while the goods were in custody of the defendant no.1. Once the goods are damaged, it is a conjoint liability 6 of the defendant nos.1, 2 and 3. It is for the defendants to apportion the damages caused to the goods to which the plaintiff is no way concerned or connected. The plaintiff shows from the pre-shipment survey report that the goods were packed and made over by its shipper to the defendant no.4 in good condition. Assuming without admitting that the goods while in transit got damaged not while the same was in custody of the defendant no.1 but while in transit in the vessels of defendant no.2, then also the defendant no.1 is not absolved of its liability. The plaintiff therefore is entitled to realize its maritime claim from the defendant no.1 and as part of security is also entitled to an order of arrest of the said vessel. The plaintiff therefore says that the said vessel should be arrested and not allowed to sail away from Kolkata since it is scheduled to sail out on 3rd May, 2025.
On behalf of defendant no.1 it is submitted that the plaintiff has asserted of a maritime claim said to have been arisen against the defendant no.1 in tort as there is admittedly no privity of contract between the plaintiff and the defendant no.1. The defendant no.1 further says that it is for the plaintiff to fix the liability as to the damage to the goods either on defendant no.1 or defendant no.2 since the goods were transported through the vessel belonging to the said defendants. The plaintiff has gone for a speculative hunt. Initially on finding the goods said to be in damaged condition the plaintiff called upon the defendant no.2 and 4 holding them liable by issuing a letter on 31 st July, 7 2024 when the wooden boxes were opened on 21 st May, 2024 and the component inside the same were according to the plaintiff found with deep rust. Water was allegedly found inside the two boxes but the report does not specify whether it is saline water or otherwise. In the said letter, the plaintiff has alleged that "due to accidental entry of ingress water during transit" the goods were damaged. If the entry of water into the wooden boxes wherein the goods were packed was accidental then there is no question of neglect on the part of the vessel and its owners. The another letter containing identical language was also served on defendant no.2 on 31st July, 2024. Much after that the notice in identical language was issued to the defendant no.1 on 4 th April, 2025. Thus about a year from the detection of alleged damage to the goods, the defendant no.1 was notified. The defendant no.1 is a common carrier and it is to only demonstrate that reasonable care to the goods were taken while the same was in its custody. The wooden boxes which were made over to the defendant no.1 during transit were delivered to the plaintiff in intact condition. It was not possible for the Master of the vessel to check what were the components inside or its condition the wooden boxes and its physical condition could only be verified. On a physical verification, the boxes were found to be in good condition while the same were made to the defendant no.1 during transit and as such, the defendant no.1 had issued its bill of lading. A copy whereof is placed before the Court and is taken on record.
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By referring to the bill of lading it is submitted by the defendant no.1 that the goods were in packed condition received by the said defendant and was also delivered to the plaintiff in same condition and as such no liability for loss and damages can be affixed on the said defendant no.1.
Relying upon the joint inspection report held between the plaintiff and its shipper it is further submitted by defendant no.1 that the goods said to be packed in wooden boxes were in the custody of the defendant no.1 for transportation for a few days immediately prior to the same being delivered. The boxes on being opened on 21 st May, 2024 it was found that the components of the machine contained therein had deep rust marks. Deep rust on the components cannot happen in few days when the goods were in the custody of the defendant no.1 immediately prior to its delivered.
Referring to the pre-shipment survey it is submitted by the defendant that the surveyor at the time of conducting the survey found three wooden boxes had already loaded in the vessel at Hamburg. The surveyor had no occasion to look into the components said to have been packed inside the wooden boxes and as such it cannot also be said that the goods were inside the wooden boxes made over to the defendant no.4 by the plaintiff's shipper in good condition.
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The defendant no.1 also says that the said vessel is feeder vessel which regularly conduct voyage between Colombo and Kolkata to carry the goods and as such there is no question of the vessel being removed from the jurisdiction of this Court. The voyage chart placed by the defendant no.1 before the Court is taken on record. The balance of convenience and inconvenience is, therefore, in favour of the defendant no.1 and against the plaintiff.
It was also submitted by the defendant no.1 that there is no dispute as to the legal proposition laid down in the judgments cited by the plaintiff but it does not apply to the facts of the instant case as stated by the plaintiff. Moreover, there is at the highest an allegation of tortious liability against the defendant no.1, but the same is unascertained and as such the question of hopelessness in its claim also does not fall for consideration at this stage.
The defendant no.1, therefore, says that the injunction granted on 1st May, 2025 should be vacated.
Responding to the arguments advanced by the defendant no.1, the plaintiff has cited two judgments.
Relying upon the judgment reported in (2022) 7 SCC 203 (Sanjay Gupta & Others-Versus-State of Uttar Pradesh), it is submitted that when an accident is shown to have occurred and the cause of the accident is parimarily within the knowledge of the defendant, the mere 10 facts that the cause of accident is unknown does not prevent from the plaintiff to recover damages, if proper inference can be drawn from the circumstances which are known.
The plaintiff says that the use of the word "accidentally" in the notice dated 4th April, 2025 to the defendant no.1, therefore, cannot be contended to be not a negligent conduct of the defendant no.1 when the goods were in the custody of the defendant no.1 and shippage of water into the boxes have taken place.
Relying upon the judgment reported in (2021) Vol.2 Lloyd's Law Reports 36 (Noble Chartering Inc-Versus-Priminds Shipping Hong Kong Co. Ltd.), it is submitted that the bill of lading with the words "as to the apparent order and condition of the cargo" refers to its external condition as would be apparent on reasonable examination. The cargo were carried on in wooden boxes. The wooden boxes were wet and on being opened were found to contain water inside which is the cause for deep rust of the components. The bill of lading issued by the defendant no.1 is a "clean bill of lading" without any endorsement that the goods were received in damaged condition. Once boxes were found to be wet from outside it prima facie demonstrates that the Master of the said vessel did not take reasonable care to protect the goods which were made over to the defendant no.1 in good condition and order by defendant no.2. The defendant no.1, therefore, is liable and will remain to be liable 11 for negligent conduct and as such, the plaintiff is entitled to the security from the defendant no.1. As a measure of such security to enforce a maritime claim, the plaintiff is entitled to arrest of the vessel.
Responding to the two judgments cited subsequently by the plaintiff, the defendant no.1 says that it is only physical verification and reasonable care which is required to be demonstrated. On physical verification the boxes were made over to the defendant no.1 in intact condition and were also delivered in intact condition to the plaintiff. The Master of the said vessel has taken reasonable care which is evident from the fact that the boxes were not broken when it was made over to the plaintiff. The defendant no.1, therefore, renews its prayer to vacate the order of injunction.
After hearing the parties and considering the materials on record as also the judgments cited at the Bar, I find that the judgments relied upon by the plaintiff are mostly rendered after the trial. The evidence or materials were already there which has been scrutinized either by the Arbitrator or any competent court and findings were given. These findings were considered either by the House of Lords or by the UK Supreme Court or the Supreme Court of India and this High Court. At this stage when the grant or refusal of interim measure is being considered, I find that the ratio laid down in the said judgments will become applicable once the materials are before the court. This Court 12 will be in a better position to appreciate the evidence and consider the ratio laid down in the judgments cited by the plaintiff in the context of the fact and materials disclosed. The claim of the plaintiff as made in the instant case can, therefore, be better appreciated after the defendants disclose their respective stand on affidavit.
So far as the proposition of law laid down in the judgments cited by the plaintiff are concerned, there can be no dispute but its applicability at this stage is not attracted.
The fact remains that the plaintiff had received the cargo from its shipper when the same was made over to the defendant no.4 as will appear from the pre-shipment survey packed in twelve wooden boxes. The contents or the components said to have been packed in the said twelve wooden boxes were neither inspected during the pre-shipment survey nor before the same were packed and made over to the transporter (defendant no.4). The defendant no.4, therefore, had issued the bill of lading giving description of the goods as informed to them by the plaintiff's shipper. The defendant no. 4, therefore, had received twelve wooden boxes in intact and good condition. The delivery of the goods appears to be made by the defendant no.1 are twelve wooden boxes in intact condition. The defendant no.1, therefore, received the twelve wooden boxes and had delivered the same to the plaintiff. There is no corroborate document from the plaintiff's side informing that the wooden 13 boxes were received in damaged condition or in wet condition as has been subsequently alleged. The earliest letter is of 4 th April, 2025 when the boxes were admittedly opened on 24 th May, 2024.
It is also not clear at this stage that the wooden boxes delivered by the defendant no.1 to the plaintiff were in wet condition or that they were damaged when the same were delivered by the defendant no.1 to the plaintiff. On the contrary the boxes were made over to the plaintiff in intact condition. The plaintiff, therefore, has not been able to discharge its primary obligation that the goods were damaged while it was in the custody of the defendant no.1. In absence of any clear demonstration at least prima facie through documents does not persuade this Court to hold the defendant no.1 liable for an enforceable maritime claim for which the plaintiff is entitled to a security in the form of arrest of the vessel only on the basis of legal presumption. Moreover, on a reading of the documents disclosed it is apparent that the plaintiff became aware of the alleged damage to its goods on 24 th May, 2024. The plaintiff had issued notices on 31st July, 2024 to the defendant no. 2 and 4 but did not take any step against either of the said defendants within a reasonable period of time from the issuance of the notice. The notice to the defendant no.1 is a more recent one dated 4 th April, 2025. There has been delay in filing the suit as the right to sue accrued in favour of the plaintiff for the first time at least in May, 2024. The said vessel as will appear from the voyage details placed before the Court by the defendant 14 no.1, clearly shows that the said vessel had come to Kolkata Port several times subsequent to 24th May, 2024. The plaintiff did not take any step as against the defendant no.1 till April, 2025. There has been as such long delay in approaching the Court as against the defendant no.1. The plaintiff, therefore, is not entitled to a security in the form of arrest of the vessel at this stage.
The matter requires to be heard out on affidavits.
Affidavit in opposition be filed by 10 th June, 2025. Affidavit in Reply thereto, if any, be filed by 27 th June, 2025.
Let this matter appear in the monthly list of July, 2025. The order of injunction granted on 1st May, 2025 stands discharged and/or vacated.
(ARINDAM MUKHERJEE, J.) Sb/pa/snn