Calcutta High Court
V.K.Udyog Limited vs The Owners & Parties Int. In The Vesses on 4 July, 2008
Author: Patherya
Bench: Patherya
G.A.NO.2123 OF 2008
AS No. 4 of 2008
IN THE HIGH COURT AT CALCUTTA
Admiralty Jurisdiction
ORIGINAL SIDE
V.K.UDYOG LIMITED Plaintiff/Petitioner/Applicant
Versus
THE OWNERS & PARTIES INT. IN THE VESSES Defendant/Respondent
M.V.EUGENIE For Plaintiff/Petitioner : MR.PRATAP CHATTERJEE,SR.ADV.WITH MR.TILAK BOSE,MR.HARSH PRATAP, MR.A.K.DE,ADVS.
For Caveator : MR.GOUTAM CHAKRABORTY, SR.ADV.,MR.K.THAKKER, ADV.
BEFORE:
The Hon'ble JUSTICE PATHERYA Date : 4th July, 2008.
The Court : By this affidavit the plaintiff is seeking arrest of vessel M.V. Eugenie. The case of the plaintiff is that by the agreement dated 2nd April, 2008 the plaintiff agreed to sell iron ore fines (goods) to one Golden World Enterprises Limited, Hong Kong. The said goods were to be despatched from Haldia Port via vessel M.V.Eugenie. The said vessel berthed on 12th June, 2008. The goods were ready for loading on the said vessel but for defective cranes only 15 MTs of the said goods were loaded. Subsequently the said 15 MTs have been off loaded and the vessel is seeking to sail without the loaded goods. Hence this affidavit 2 of arrest has been filed to arrest the vessel M.V. Eugenie as non- loading will cause immense loss to the plaintiff on account of movement of goods and issuance of fresh shipping bills which will attract duty at 15% ad valorem which has come into effect from 13th June, 2008. The caveator has lodged a caveat under Rule 27 of the Admiralty Rules of the Calcutta High Court and under Rule 28 is to give an undertaking to enter appearance and furnish security. Therefore, the caveator be directed to furnish security in the event no order for arrest is passed.
Counsel for the caveator submits that the plaintiff has no maritime claim as postulated by the 1999 Convention. The owner of the vessel M.V.Eugenie is Attar Limited. Vasteast International Transportation Company Limited, the caveator herein is a time charterer. The time charterer has entered into an agreement with Rainbow Sky Shipping Limited who in turn has entered into an agreement with Golden World Enterprise Limited. It is only the buyer who can institute proceedings. From the survey report it will appear that the cranes were satisfactory vis-a-vis the load to be applied as set out in the survey report. Such survey report was made on 22nd June, 2008. The time charter agreements have been cancelled and therefore, there is no obligation on the part of the Master of the vessel to load the vessel. In fact the agreement has also been cancelled by the buyer Golden World Enterprise Limited and therefore, there is no obligation on the part of the time 3 charterer to load the vessel. Despite cancellation an offer was made on 24th June, 2008 to load the vessel upon a concession given. The said opportunity was not availed. The claim set out in paragraph 12 of the affidavit does not amount to a maritime claim. Therefore, for the plaintiff's refusal to resume loading on 24th June, 2008 no orders be passed. The goods which were loaded i.e. 15 MTs have been off-loaded and no objection in this regard was issued by the Customs Authorities on 3rd June, 2008. After complying all formalities the vessel is now ready to sail. It could not sail as the 15 MTs had to be off-loaded after complying with all formalities.
In reply the plaintiff has submitted that the claim is a maritime claim under Sub-Article 1(a) and (g) of Article 1 of the 1999 Convention. Reliance has been placed on (1985) 1 Appeal Cases 711, AIR 1993 SC 1015, AIR 2003 SC 24 and Article 3 of the Indian Carriage of Goods by Sea Act. The damage caused need not arise out of the vessel or agreement but even if it be connected with the vessel or agreement would tantamount to a maritime claim.
Having considered the submissions of the parties the goods could not be loaded on to vessel M.V.Eugenie due to the defective cranes. From the Surveyor's report dated 22nd June, 2008 the capacity was 25 MTs and on such application of load the cranes could not work satisfactorily. It was only when a lesser load was applied that the cranes worked satisfactorily. Therefore, there 4 was default on the part of the vessel to load the goods. This tantamounts to a maritime claim under Article 1 of the 1999 Convention. Therefore, the application is maintainable. Undoubtedly the caveator is a time charterer which entered into an agreement with the buyer. In spite of the Electronic Mail exchanged evidencing cancellation subsequent Electronic Mails have been sent which evidences that such cancellation has been given a go-bye as from the Electronic Mail issued subsequently the plaintiff has been requested to arrange resumption of loading. Although there is an Electronic Mail dated 25th June, 2008 by which the cancellation has been accepted by the time charterer the same is followed by another Electronic Mail dated 26th June, 2008 from Rainbow Sky Shipping Limited to the caveator. The said exchange of Electronic Mails evidences that the parties were still at a negotiating stage. It is only after the letter dated 29th June, 2008 from the Calcutta Port Trust, Haldia Dock Compex questioning the off-loading of 15 MTs of the goods that a request for issuance of no objection has been made by the Advocate of the caveator. Such no objection was issued on 3rd July, 2008. The vessel, therefore, is now ready to sail and the issue that arises for consideration is whether in the facts narrated above it should be allowed to do so. The issue can only be answered in the negative. As the vessel right from the date it entered into the Haldia Port was not ready to load. This was known to the owners of the vessel, 5 the Time Charterer, Rainbow Sky Shipping Ltd. and the Master of the vessel. Steps ought to have been taken to rectify the defects by either repairing the cranes or seeking berth in that section of the Haldia Port where the shore cranes could be used to load the vessel. The said was the responsibility of the owner of the vessel and not having done so, it has not discharged the acts required to be done by it. Therefore, an order of arrest of M.V.Eugenie is directed till 10th July 2008 with liberty to the caveator and/or Rainbow Sky Shipping Ltd to berth the vessel M.V.Eugenie in a working berth where shore cranes are available for loading the ship.
This order has been passed in the presence of the parties and the caveator is directed to communicate this order to the Master of vessel, Port Authorities and the Customs Authorities.
Marshal, Master of the vessel, Port Authorities, Customs Authorities and all parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
( PATHERYA, J.) pa/pkd