Calcutta High Court
Glencore Grain India Pvt. Ltd vs The Owners And Parties Interested In The ... on 20 July, 2016
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2095 of 2016
With
AS No.3 of 2016
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
ORIGINAL SIDE
GLENCORE GRAIN INDIA PVT. LTD.
Versus
THE OWNERS AND PARTIES INTERESTED IN THE VESSEL M.T. FENG HAI 21
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 20th July, 2016.
Appearance:
Mr. Ratnanko Banerjee, Sr. Adv.
Mr. Lokenath Chatterjee, Adv.
Mr. Swarajit Dey, Adv.
Mr. Indradeep Basu, Adv.
...for the plaintiff
Mr. Partha Basu, Adv.
Mr. S. Ghose, Adv.
Mr. S. Prasad, Adv.
Mr. P. Bose, Adv.
...for the defendant
The Court : The plaintiff entered into a contract on 5th May, 2016 with one
Glencore Singapore Pte. Ltd. for purchase of 1500 mt. of RBD Palm Olein (edible grade)
in bulk. On 6th May, 2016 the Seller nominated the vessel MT Feng Hai 21 for carriage
of the goods under the contract with shipment period of 1st to 31st May, 2016. Thereafter
the price of the goods was finalized at USD 715 per MT. The plaintiff contends that the
entire voyage could not take more than seven days. The seller shipped an aggregate
quantity of 1500 MT. of RBD palm olein in terms of the contract. The defendant is the
carrier. The original Bills of Lading are in possession of the agent of the vessel for
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obtaining delivery. The seller raised a commercial invoice on 6th May, 2016 on the
plaintiff for a sum of USD 1072500/- (equivalent to Rs.72001650/-). All the six several
Bills of Lading have been endorsed in favour of the plaintiff on 6th May, 2016 and the
plaintiff is the holder in due course.
On 12th May, 2016 a purported Notice of readiness was tendered on behalf of the
said vessel by the agents, Sea Port Services Pvt. Ltd. alleging, inter alia, that the said
vessel arrived at Sandheads (within the territorial limits of Budge Budge) on 11th May,
2016. The plaintiff petitioner contends that the said notice of readiness is invalid and
has not been accepted by the plaintiff. Subsequently, the agent informed by an email
dated 12h May, 2016 that the said vessel was expected to berth at Budge Budge Jetty on
20th May, 2016. The said vessel did not berth at Budge Budge Jetty on 20th May, 2016.
The plaintiff made enquiries with the said agent about the delay in the arrival of the said
vessel. The plaintiff was informed that the said vessel was suffered a breakdown of her
main engine turbo charger on 19th May, 2016 and was undergoing repairs. The plaintiff
made enquiries from time to time about the arrival of the said vessel but was informed
that she was undergoing repairs of the main engine turbo charger and would berth
shortly. After more than a month, on 23rd June, 2016, the said agent sent an email
forwarding an email received from the Master of the vessel purporting to declare General
Average. The plaintiff contends that the alleged breakdown of the main engine of the
turbo charger of the said vessel was a result of a breach of duty by the defendant to
exercise due diligent to make the said vessel seaworthy before and at the beginning of
the voyage.
The defendant alleged that the defendant had incurred expenses for repairs of the
main engine turbo charger and demanded for general average contribution as a
condition precedent for release of the cargo. The defendant has refused to discharge
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and/or delivery of the cargo of the plaintiff carried under the said bills of lading if the
plaintiff fails to furnish a General Average Bond in the form provided by the General
Average Adjuster appointed by the defendant. The plaintiff contends that the expenses
alleged to have been incurred by the defendant for repairs of the main engine turbo
charger are routine expenses which have been incurred in the normal course of events of
operating the said vessel. In any event, the alleged expenses have been incurred solely
due to failure on the part of the defendant to exercise due diligence to make the said
vessel seaworthy.
It appears that the plaintiff is the holder in due course of the bill of lading and is
entitled to delivery of the said cargo. The defendant due to engine breakdown which
occurred at the anchorage was unable to deliver the said cargo to the plaintiff. The said
vessel is now docked at NSD, Docks Kolkata. The plaintiff apprehends that in the event
the said vessel is allowed to leave the shore after repairing without delivery of the cargo,
the plaintiff would suffer irreparable loss and prejudice.
The ship is already under arrest in terms of the order dated 8th July, 2016
instituted by another consignee, namely, Purti Vanaspati Pvt. Ltd. In that proceeding, I
have permitted the consignee to execute the General Average Bond after going through
the Charter Party Agreement or the document evidencing the Charter Party without
prejudice. The vessel under arrest was permitted to sell to Budge Budge and discharged
the cargo of the other consignees, namely, W.E. COX and W.K. Webster and/or their
nominees or successors in interest. Subject to furnishing the bond, the respondent was
directed to deliver the cargo to the plaintiff. Similar directions are also passed in this proceeding.
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Affidavit-in-opposition shall be filed within nine days from date. Reply thereto, if any, shall be filed within three days thereafter. The matter shall appear along with GA No.2053 of 2016 and GA No.2070 of 2016 on 2nd August, 2016.
(SOUMEN SEN, J.) B.Pal