Calcutta High Court
Pacific World Singapore Pte Ltd vs The Owners Parties Interest In The on 13 August, 2013
Author: Harish Tandon
Bench: Harish Tandon
GA No. 2361 of 2013 AS No. 6 of 2013 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (ADMIRALTY) Pacific World Singapore Pte Ltd.
Versus The owners parties interest in the Bunkers on Board the Vessel MV Kibali & Anr.
Before:
The Hon'ble Justice Harish Tandon Date: 13th August 2013 Appearance:
Mr. Anubabh Sinha, Advocate Mr. Sudhakar Basak, Advocate for the petitioner Mr. S. N. Mookherjee, Sr. Advocate Mr. Ratnanko Banerjee, Advocate Mr. Amitava Majumdar, Advocate Mr. S. Malhotra, Advocate Mr. S. Dey, Advocate for the defendant no. 1 The Court: The plaintiff's claim in this Admiralty Suit is arising out of a breach of three time charter executed between the plaintiff and the defendant no.2 in respect of the vessels namely, M.V. Ocean Melody, M.V. Sanko Mercury and M.V. Marie Paul. The order for arrest of vessels M.V. Kibali is sought for by the plaintiff for securing the dues on account of the damages and losses suffered for breach of the aforesaid time charter. The owner of the vessels, the defendant no.1 has appeared and submitted that the vessel was entrusted to the defendant no.2 on the basis of time charter and for the claim of the plaintiff the said defendant cannot be saddled with the damage and loss. It is further submitted that no document has been 2 produced in support of the contention that there is a corresponding liability of the defendant no.2 in the time charter and, therefore, the claims as made in the plaint have not been prima facie proved requiring any order of arrest to be passed in this application.
I have given my anxious consideration on the averments made in the application as well as the document annexed thereto. Apart from an invoice dated 20th March, 2013 and a final Hire statement, there is no corroborative document annexed to the application or plaint evidencing the time charter between the plaintiff and the said defendant no.2.
The learned Advocate appearing for the plaintiff, however, restricts his prayer to the arrest of a bunker and not the vessel itself as according to him the bunker is the vessel of the defendant no.2 which is capable of being arrested in an Admiralty Suit.
A reliance has been placed to an order of this Court in the case of Ray Metal (Asia) PTE Ltd. vs. Owners and Parties Interested in the Bunkers and Iron Ore Fines Lying on Board the Vessel M.V. DD Vigor & Others in support of the contention that the Court can attach the cargo and bunker of the chartered vessel under the Admiralty Rules, 1911. The aforesaid order was passed after recording the satisfaction that there has been a breach of a charter party agreement and an acceptance of liability in principle.3
As I have already indicated, neither time charter agreement nor any document relating to foisting of the liability to pay the loss and damages of breach of any terms and conditions are produced before the Court. The order of arrest of the vessel is passed taking into consideration the principle akin to the injunction. This Court does not find that there has been any attempt on the part of the plaintiff to prima facie satisfy by cogent materials that the vessel should be arrested which admittedly belongs to the defendant no. 1.
Furthermore, there is no agreement between the plaintiff and the defendant no. 1 and therefore, this Court does not find that the order of arrest could be passed at this stage.
The plaintiff is directed to serve the copy of this application upon the defendant no. 2.
The defendants are permitted to file affidavits-in-opposition to the application within three weeks from date; replies thereto, if any, shall be filed within a week thereafter. Let this matter be listed after four weeks.
Urgent certified photocopy of this order, if applied for, be made available to the parties upon compliance with all requisite formalities.
(HARISH TANDON, J.) r.bose/sg2