Bombay High Court
Fugro Geotech India Pvt Ltd vs M V Surya 2 Imo No 8657873 on 16 August, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
501-jol-25687-2024.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
JITENDRA
ORDINARY ORIGINAL CIVIL JURISDICTION
JITENDRA SHANKAR
SHANKAR NIJASURE
NIJASURE Date:
IN ITS COMMERCIAL DIVISION
2024.08.16
17:50:34
+0530
JUDGE'S ORDER (L) NO.25687 OF 2024
IN
COM ADMIRALTY SUIT (L) NO.25662 OF 2024
Furgo Geotech (India) Pvt. Ltd. ...Plaintiff
Versus
m.v. Surya 2 (IMO No.8657873) ...Defendant
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Mr. Ashwin Shanker a/w Ms. Diksha Brahma and Ms. Isha Sawant,
Advocates for the Plaintiff.
None for the Defendant.
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CORAM : R.I. CHAGLA J.
DATE : 16TH AUGUST, 2024.
ORDER :
1. The Plaintiff's Advocate has informed me that there is no valid/ active Caveat against Arrest of the Defendant Vessel entered in the Caveat Warrant Book. The Caveat Warrant Book has also been produced in Court.
2. The above Judge's Order is moved ex-parte after circulation was granted to the Plaintiff.
3. The urgent relief sought for by the Plaintiff in the suit is arrest of the Defendant Vessel.
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4. It is the Plaintiff's contention that the on 06.07.2024 @ 00:22 hours, the Defendant Vessel collided with the Plaintiff's stationery Self-Elevating Platform viz., DB Fugro Krishna bearing No. MOR-IV-0036SEP (the "SEP") causing physical damages to the SEP rendering it non-operational. The Plaintiff submits that the SEP was stationed at MBH-07, Dharamtar Creek, Amba River at Dharamtar Port pursuant to a Service Order for Marine Geotechnical Investigation dated 11.05.2024 between the Plaintiff and JSW Dharamtar Port Pvt. Ltd.
5. The Plaintiff submits that it's SEP- Fugro Krishna was positioned at MBH-07 from 14:20 hours on 05.07.2024. The SEP was stationery with sufficient lights on board in a working condition to conduct operations during and throughout the night. The Plaintiff submits that the Defendant Vessel was moving negligently across the main channel and breached the safe navigation and proper safety lookout requirements within Dharamtar port. The Plaintiff's SEP-Fugro Krishna, was stationary, well illuminated. The Plaintiff's crew noted that the Defendant Vessel was heading straight towards the SEP at high speed and issued emergency warning flashlights to the Defendant vessel. The crew onboard the Plaintiff's SEP was 2/7 ::: Uploaded on - 16/08/2024 ::: Downloaded on - 24/08/2024 05:28:47 ::: 501-jol-25687-2024.doc compelled to abandon the SEP before the Defendant Vessel hit the SEP. The Defendant Vessel hit the Plaintiff's SEP @ 00:22 hours on 06.07.2024. The Defendant Vessel is solely responsible for the collision, and for the damage caused to the Plaintiff's SEP.
6. The Plaintiff submits that in the aftermath of the collision incident the Plaintiff's SEP was rendered damaged, non- operational and had to be urgently salvaged. On 09.07.2024, the SEP- DB Fugro Krishna was partially salvaged by one RR Enterprises, who were appointed by the Defendants. The salvage was removed from the main navigational channel and tied to RR Enterprises jetty. The salvage costs of Rs. 21,00,000/- (Twenty- One Lakhs Only) + GST have not been paid by the Defendants to RR Enterprises. The salvors- RR Enterprises is therefore exercising a lien on the Plaintiff's SEP.
7. Further the Plaintiff submits that the SEP salvage was required to be removed from the jetty and brought to drydock for (a) preventing environmental damage (b) safety of the port and navigational channel (c) to conduct survey and physical inspection to ascertain the damages sustained by the SEP and the repairs required to put the SEP in a working and tradeable 3/7 ::: Uploaded on - 16/08/2024 ::: Downloaded on - 24/08/2024 05:28:47 ::: 501-jol-25687-2024.doc condition. The Plaintiff therefore instructed the salvors- RR Enterprises to remove such SEP salvage and bring her to drydock. The salvors will be paid INR 9,00,000/- (Indian Rupees Nine Lakhs Only) + GST for removing the salvage from jetty and bringing it to drydock.
8. The Plaintiff submits that the SEP has been non-operational from the time of the incident i.e., 06.07.2024 till date - thus, the Service Order between the Plaintiff and JSW for geotechnical investigation has come to an absolute standstill. The Plaintiff does not have any other SEP nor is there any other available SEP in the market with specifications and criteria required to perform the Service Order with JSW.
9. Against the backdrop of the foregoing, the Plaintiff seeks a judgment and decree against the Defendant Vessel, and the arrest, sequestration, condemnation, and sale of the Defendant Vessel, for securing and/ or satisfying its claim of Rs 5,55,35,381/- The Plaintiff also claims interest and costs. The Plaintiff's claim comprises of, inter alia, the value of an imported replacement SEP, estimated loss of business, salvage costs, spares and tools on board the SEP lost at the time of collision etc.
10. I have heard the learned Counsel appearing on behalf of the 4/7 ::: Uploaded on - 16/08/2024 ::: Downloaded on - 24/08/2024 05:28:47 ::: 501-jol-25687-2024.doc Plaintiff and have considered the averments made in the plaint and the documents produced with the Plaint. After going through the Plaint and exhibits, I find that a prima facie case for arrest of the Defendant Vessel is made out.
11. The Plaintiff's claims arises on account of extensive loss and damage on account of the collision incident caused by the negligent operation of the Defendant Vessel. The Plaintiff's claim therefore constitutes loss and damage caused by the operation of the Defendant Vessel. The Plaintiff's claims are therefore a 'maritime claim' as contemplated by, inter alia, Sections 4(1)(d), and 4(1)(w) of the Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017. Further, the Plaintiff's claims are based on tort arising out of loss or damage caused by the operation of the Vessel other than loss or damage to cargo and containers carried on the Vessel. The Plaintiff's claim are therefore a 'maritime lien' as contemplated by Section 2(1)(g) read with section 9(1)(e) of the Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017. The right to arrest the Defendant Vessel for the aforesaid maritime claims and maritime lien is to be found in section 5(1) of the Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017. 5/7 ::: Uploaded on - 16/08/2024 ::: Downloaded on - 24/08/2024 05:28:47 :::
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12. In these circumstances, I find that there is a cause of action in favour of the Plaintiff. I also find that since the Defendant Vessel is presently at Mumbai Port Anchorage, she is within the admiralty jurisdiction of this Court. As stated above, the Plaintiff has made out a prima facie case. I am also satisfied that the balance of convenience lies with the Plaintiff to whom, irreversible prejudice would be caused if the reliefs sought in the Judge's Order are denied. Accordingly, I order and direct the arrest of the Defendant Vessel m.v. SURYA 2 (IMO No. 8657873) along with her hull, tackle, engines, machinery, boats, bunkers, equipment, paraphernalia, and other appurtenances presently at Dharamtar Port, Maharashtra and/ or Mumbai Port Anchorage or wherever she is within the territorial waters of India until the satisfaction of the Plaintiff's claim.
13. I have seen the Judge's Order and it seems to be in the proper form and with the appropriate contents. I accept the undertakings contained in the Judge's Order as undertakings to the Court. I therefore make an order in terms of the Judge's Order in the facts and circumstances of the present case.
14. The Warrant of Arrest is dispensed with.
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15. After service of this order of arrest, if the Defendant Vessel is not released by furnishing security or bail amount or an application for vacating the order of arrest is not filed within 45 days, or the vessel is found abandoned by the person in-charge of her or her owner, or if she is found unmanned, then, in such an event, on a communication being sent by the Plaintiff, the office of the Sheriff of Mumbai shall present a Sheriff's report for auctioning the Defendant Vessel within 14 days from the date of receiving such communication. The Plaintiff is also entitled to file an application for sale of the vessel even prior to the 45 days, if it is apparent that the owner of the Defendant Vessel will not be furnishing security or filing an application for vacating the order of arrest or if the circumstances are such that the sale of the Defendant Vessel is justified.
16. All concerned, including Port and Customs Authorities will act on production of an authenticated copy of this order (signed by the Associate/ Private Secretary of this Court) sent to them by email by the Plaintiff's advocate.
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