Calcutta High Court
Ekon Shipping And Trading Pte Ltd vs The Owners And Parties Interested In The ... on 7 August, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
ORDER SHEET OCD 1 & ODSL 1
IA No.GA-COM 1 of 2025
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
EKON SHIPPING AND TRADING PTE LTD.
VS
THE OWNERS AND PARTIES INTERESTED IN THE VESSEL "M. V. CATIVERA"
IMO NUMBER 9172105 AND ANR.
With
IA No.GA-COM 2 of 2025
AS COM NO. 2 of 2025
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
EKON SHIPPING AND TRADING PTE LTD.
VS
THE OWNERS AND PARTIES INTERESTED IN THE VESSEL "M. V. CATIVERA"
IMO NUMBER 9172105 AND ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 7TH August, 2025.
Appearance :
Mr. S.N. Mookerjee, Sr. Adv.
Ms. Sonal Shah, Adv.
Mr. Kushagra Shah, Adv.
Ms. Rittwika Banerjee, Adv.
Mr. Viraj Gupta, Adv
for the plaintiff/respondent
Mr. Krishnaraj Thaker, Sr. Adv, Ms. Sreenita Ghosh, Adv, Ms. Sneha Sighania, Adv, 2 Ms. Shabana Khatun, Adv, for the defendant No. 1 Re: IA No. GA-COM/1/2025 The Court : The above two applications are taken up together for hearing.
G.A. (Com) 1 of 2025 is an application for arrest of the vessel M. V. CATIVERA having IMO no. 9172105 (hereinafter referred to as the said vessel) wherein by an order dated 2 nd August, 2025, the said vessel was directed to be arrested.
G.A. COM 2 of 2025 is an application by the defendant no. 2 for vacating of the order dated 2nd August, 2025. On behalf of defendant no.1, it is submitted that arrest of a vessel can take place in terms of the provisions of Section 5 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (hereinafter referred to as the 2017 Act). Referring to Section 5(1) (a), (b) and (e). It is submitted by the defendant no. 1 that the defendant no. 2 is neither the owner or disponent owner nor the demise charterer or manager or operator of the vessel. The maritime claim, if any of the plaintiff also does not qualify as a Maritime lien under Section 9 of the 2017 Act to bring its case under Section 5(1)(e) It is submitted by the defendant no. 1 by referring to page 20 and 22 of G.A. 1 of 2025 that the registered owner of the said vessel is M. V. CATIVERA Shipping Co. S.A and there is no dispute thereto. The insurance document annexed at page 34 and 41 of G.A. 1 of 2025 is next 3 relied upon to show that CATIVERA Shipping Co. S.A. is assured against the said vessel under the insurance document from 7 th May, 2025 to 7th May, 2026.
The defendant no. 1 then refers to page 53 to submit that even in the agreement between the plaintiff and the defendant no. 2 it is clearly stated that the head owners is CATIVERA Shipping Co. S.A.. The defendant no. 2 has been defined in the said document dated 17 th May, 2025 to be Time Charterer Owners. The defendant no. 1 then refers to the pleadings in paragraphs 5, 30, 33, 34 of the affidavit in arrest to submit that it is admitted by the plaintiff that the CATIVERA Shipping Co. S.A. is the owner of the said vessel. The statements in the affidavit of arrest makes it clear according to defendant no. 1 that the defendant no. 2 who has chartered the vessel has taken the operational responsibilities and commercial control of the vessel and is managing its day to day affairs, effectively acting as the operator without owning it. This statements according to the defendant no. 1 is contrary to records. It is also alleged that the defendant no. 2 selects the ports, decides the route, and has full operational control over the vessel for a duration of contract and is paying the full cost, port charges cargo handling costs, commissions and a daily hire fee. The allegation of operational control according to defendant no. 2 is contrary to the records. 4
According to the defendant no. 1, it is also alleged by the plaintiff that defendant no. 2 has the trappings of the owner till the time the charter between the defendant no. 2 and the original owner operates.
It is further submitted by the defendant no. 1 and 2 that on a conjoint reading of paragraph 33 and 34 of the affidavit of arrest, it will appear that the said vessel according to the plaintiff is liable to be arrested under Section 5(1) (a) as the defendant no. 2 is a time charter owner which disponent owner of the said vessel. The assertion is also not the correct proposition of law particularly in the facts of the case.
The defendant no. 1 further submits that so far as the case made out by the plaintiff for arrest of the vessel under Section 5(1) (a) of the 2017 Act is concerned, the same is scaled down by its own admission that the said vessel at the time when the alleged maritime claim arose was owned by CATIVERA Shipping Co. S.A. So far as the claim of the defendant no. 2 as demise charter is concerned, the defendant no. 1 says that the same is also not correct in view of the ratio laid down by the Hon'ble Supreme Court in 2003 1 SCC 305 [Epoch Enterrepots v. M.V. Won Fu,] by referring to paragraph 36, it is submitted that in a demise charter, the vessel is given to the charter as a bare boat who thereafter takes complete control of the vessel including manning the same, in both voyage charter and time charter, master and crew are engaged by the owner to act under the owners instructions but under the charter's direction. In the instant case, the 5 vessel is owned by CATIVERA Shipping Co. S.A. The master and the crew are engaged by the owner and they act under the owners instruction and such defendant no. 2 does not qualify as a demise charter.
The defendant no. 1 then refers to a judgment reported in (2018) 5 SCC 505 [Sunil B. Naik v. Geowave Commander] and submits that even if the period of the charter agreement is for a considerable long period of time like three years in the said case, the charterer does not become a demise charter unless it fulfills the other requirements as held in [Epoch Enterrepots] (supra). The defendant no. 2, therefore, does not qualify as demise charter to seek arrest of the said vessel under the provisions of Section 5 (1) (b). The defendant no. 1 also submits that in view of the findings in [Epoch Enterrepots] (supra) and Sunil B. Naik (supra) as also according to the definition in Dictionary of Shipping Terms (6th edition), the defendant no. 2 is not a disponent owner as claimed by the plaintiff and as such does not come within Section 5(1)
(a). The defendant no. 1 then refers to page 11 of G.A. 2 of 2025 to demonstrate that the ship was wrongfully arrested at the instance of the plaintiff while it had been cleared for onward journey to Kakinada from Haldia. The defendant no. 2 at the end refers to the Time Charter agreement between M. V. CATIVERA Shipping Co. S.A. and defendant no. 2 annexed at pages 17 to 27 of G.A. 2 of 2025 by referring to clause 15, 48, 51, 52, 98, 99, 105, 107, 115 and 116, 239, 240 and 241 to 6 submit that on a conjoint reading of the said terms it is crystal clear that the said document is a simple Time Charter Agreement as per the New York Produce Form and its terms clearly demonstrate that the conditions of making the defendant no. 2 a demise charter or disponent owner or a bare boat charter are not fulfilled. On the contrary that it is only a Time Charter is apparent.
The said vessel thereof is not liable to an action in rem under Section 5 of the 2017 Act on the basis of the statements made in the affidavit in arrest. The defendant no. 1, therefore, says that the order of arrest dated 2nd August, 2025 should be vacated and the defendant no. 2 should be directed to put in actual security in respect of the undertaking as directed by the said order since it is a copy from Singapore and may not be having any asset within the jurisdiction of this Court. On behalf of the plaintiff, it is submitted that the plaintiff upon having made out a prima facie case, was favoured with an order of arrest. The under taking as directed to be given by the order dated 2 nd August, 2025 has been complied with. There has been no change in situation from 2nd August, 2025 when the said vessel was arrested and as such no question of vacating the order dated 2 nd August, 2025 does not arise. In reply to the contention of the defendant no. 1, the plaintiff by referring to clause 15, 48, 99, 105, 106 and 107 submits that on a holistic reading of the said agreement, it will be evident that the same is a demise charter agreement and as such, the plaintiff as a demise 7 charter was entitled to seek an order of arrest and is further entitled to retain such order of arrest after having obtained the same. The provisions of Section 5 (1) and (b) of the 2017 Act permits passing of such order at the instance of the plaintiff particularly when the maritime claim of the plaintiff has not been disputed by the defendant no. 1. The plaintiff says that it is not the nomenclature but the substance of the agreement characterizes it. The terms of the agreement is, therefore, required to be looked into as a whole. Referring to Sunil B. Naik (supra) the plaintiff says that the Supreme Court has categorically held that the substance of the agreement is to be considered and not is nomenclature. The defendant no. 2 says that on a reading of the entire agreement between CATIVERA Shipping Co. S.A. and defendant no. 2, it is absolutely clear that the defendant no. 2 is either a demise charter or a disponent owner of the said vessel. The plaintiff, therefore, submit that the vacating the application being G.A. 2 of 2025 should be dismissed while the order of arrest should be suitably extended and the application being G.A. 1 of 2025 be heard on affidavits.
After hearing the parties and considering the materials on record, I find that the agreement between CATIVERA Shipping Co. S.A. and defendant no. 2 is for a period of 90 to 105 days which includes +/- five days. The agreement was entered into on 12 th February, 2025 and the maximum tenure of the same being 120 days, the said agreement comes to an end in the middle of June, 2025. Even if the maximum period is 8 taken to be 120 days, then also the agreement has come to an end in the middle of June, 2025. The agreement between the plaintiff and the defendant no. 2 is dated 17th June, 2025 and had come into effect from June, 2025. The arrest has taken place on 2 nd August, 2025. As on 2nd August, 2025, the defendant no. 2 was neither the demise charter nor disponent owner or the owner of the said vessel even if the statements made in the affidavit of arrest are taken to be true and correct without admitting the same.
The maritime claim therefore, could not have arisen prior to 17 th June, 2025 or 19th June, 2025. By that time, the agreement dated 12 th February, 2025 between CATIVERA Shipping Co. S.A. and defendant no. 2 had come to an end by efflux of time. There is no document on record or has been produced to show that the Time Charter Agreement between defendant no. 1 and 2 was or had got extended. Assuming without admitting that the defendant no. 2 is either a demise charter or a disponent owner then also on the date of arrest, the defendant no. 2 was not a demise charter or a disponent owner. The said vessel therefore could not have been arrested at the instance of the defendant no. 2 on 2nd August, 2025. That apart and in any event from the judgment cited by defendant no. 1 it is amply clear that the tenure of the agreement does not make the charterer a demise charter unless the conditions for being so are fulfilled. I find that on a holistic reading of the agreement 9 dated 12th February, 2025, the defendant no. 2 cannot be said to be a demise charterer or disponent owner at the stage.
In the aforesaid facts and circumstances, the order of arrest dated 2nd August, 2025 is vacated and/or discharged. The said vessel is permitted to and will be free to sail out of Haldia port to its onward journey to any other port unless it becomes otherwise liable for being arrested. I am, however, not inclined to order for actual security being put in by the plaintiff as it has already filed it's undertaking. Let Affidavits be filed in G.A. 1 and G.A. 2 of 2025.
Affidavits in opposition by 24th August. Affidavit-in-reply, if any, by 22nd September. Let the two applications appear in the monthly list of November, 2025 (ARINDAM MUKHERJEE, J.) pa