Bombay High Court
Geowave Commander vs Geowave Commander on 17 April, 2013
Author: S. J. Kathawalla
Bench: S. J. Kathawalla
KPP 1 NMSL 617/2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY & VICE ADMIRALTY JURISDICTION
NOTICE OF MOTION (L) NO. 617 OF 2013
IN
ADMIRALTY SUIT (L) NO. 230 OF 2013
GEOWAVE COMMANDER ... Applicant
In the matter between:
Yusuf Abdul Gani, Sole Proprietor of
Jumbo Offshore Enterprises ... Plaintiff
vs.
GEOWAVE COMMANDER ....Defendant
Mr. V. K. Ramabhadran for the Plaintiff.
Mr. P.S. Pratap, Senior Advocate, along with Mr. Ashwin Sinha, instructed by Ms.
T.R. Agarwal for the Defendant/Applicant in support.
CORAM : S. J. KATHAWALLA, J.
Judgment reserved on : 25
March, 2013
th
Judgment pronounced on: 17 April, 2013
th
JUDGMENT:
1. The above Notice of Motion is taken out by the Applicant/Original Defendant
- GEOWAVE COMMANDER ("GC") for vacating ex parte order of its arrest dated 15th March 2013.
2. The Applicant/Defendant has pointed out that the Plaintiff's specific case in the Plaint is that they have a claim against Reflect Geophysical Pte. Ltd. ("Reflect") for unpaid charter hire under a Charterparty dated 1 st October 2012 concerning the Plaintiff's vessel Orion Laxmi ("OL") which was chartered to Reflect as time ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 2 NMSL 617/2013 charterer and further Reflect is the owner of the Defendant Vessel - GC and consequently the Plaintiff alleged that it is entitled to arrest the Defendant Vessel -
GC. According to the Defendant, the entire claim of the Plaintiff rests on the allegation that the Defendant vessel is owned by Reflect which is incorrect. The Defendant vessel is owned by Master and Commander AS, Norway, a Company incorporated under the Laws of Norway and not Reflect. It is submitted that the Plaintiff admittedly has no claim against Master and Commander AS and is not entitled to arrest the Defendant vessel. The Defendant vessel was chartered by its owner, Master and Commander AS to Reflect under a Bareboat Charterparty dated 29th June 2012 for a period of three years at a charter hire rate of US $ 14,090.00 per day. According to the Applicant/Original Defendant, there are several blatantly false, misleading and incorrect statements made in the Plaint, in particular that the Plaintiff corresponded with the owners of the Defendant vessel and that Mr. Mathew is the CEO of the Owners (Paragraph 8); that the Defendants were obliged to pay charter hire; that the Defendants confirmed that the Plaintiff could take legal action (Paragraph 9); that the Defendants failed and neglected to pay the Plaintiff's invoices (Paragraph 10); that the Defendant vessel failed to pay charter hire (Paragraph 11). It is therefore submitted in the application that the Plaintiff has no right of arrest of the Defendant vessel GC which is not owned by Reflect but only chartered by them as stated above.
3. Mr. Pratap, the Learned Senior Advocate appearing for the Applicant/Defendant has submitted that the specific case with which the Plaintiff ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 3 NMSL 617/2013 has approached this Court as set out in the Plaint is that Reflect is the owner of the Defendant vessel (Paragraph 3); Defendant vessel failed to pay charter hire to the Plaintiff (Paragraphs 10 and 11) and Plaintiff's claim is a maritime claim against the Defendant vessel (Paragraph 11). It is submitted that each of these statements is false to the knowledge of the Plaintiff with a view to mislead this Court into granting an ex parte order of arrest dated 15 th March 2013 of the Defendant vessel GC. It is submitted that Reflect is not the owner of the Defendant vessel GC which is owned by Master and Commander AS, Norway. It is Reflect who has failed to pay charter hire to the Plaintiff under charterparty dated 1 st October 2012 for the vessel OL and not the Defendant vessel GC. The Plaintiff's maritime claim is therefore against Reflect and arises under a charterparty between the Plaintiff and Reflect for charter of the vessel OL. It is not a maritime claim against the Defendant vessel. Mr. Pratap submitted that on this ground alone, the ex parte order of arrest is liable to be and should be vacated without considering the merits as the Plaintiff has come to Court with a false case and made false, incorrect and misleading statements in the plaint and has no right to be heard.
4. Mr. Pratap has further submitted that the Plaintiff has falsely stated in paragraphs 3 to 10 of the Plaint that the owners of the Defendant vessel have admitted liability in respect of the Plaintiff's claim. This is incorrect since liability has been admitted by Reflect as is apparent from the correspondence and invoices annexed to the plaint and Reflect is not the owner of the Defendant vessel.
According to Mr. Pratap, once this is accepted, the order of arrest must be vacated.
::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 4 NMSL 617/20135. Mr. Pratap has submitted that in order to ascertain whether in an action in rem filed in the Admiralty jurisdiction of this Court, the Plaintiff is entitled to an order of arrest of the Defendant vessel, the following needs to be established:
(a) The Plaintiff has a maritime claim;
(b) The vessel in respect of which the Plaintiff has a maritime claim;
(c) The party liable in personam in respect of the maritime claim; and
(d) The party liable in personam is the owner of the vessel sought to be arrested.
6. Mr. Pratap has submitted that as stated in the judgment in the case of m.v.
Elizabeth1 in paragraph 84, no Indian statute defines a maritime claim. It is for this reason that the Court looks at the Arrest Convention which lists various maritime claims for which a vessel can be arrested. Following the judgment in m.v.
Sea Success2 and the Full Bench Judgment of this Court in Golden Progress3, the 1999 Arrest Convention is followed in matters of arrest of ships. The Plaintiff has alleged in paragraph 11 of the Plaint that his claim is for use and hire of the vessel.
The claim of the Plaintiff is therefore a maritime claim under Article 1 (f) of the 1999 Convention ("any agreement relating to the use and hire of the ship whether contained in a charterparty or otherwise").
7. As regards the issue as to the vessel in respect of which the Plaintiff has a maritime claim, Mr. Pratap submits that the Plaintiff's maritime claim is for use or 1 AIR 1993 SC 1014 2 (2004) 9 SCC 512 3 (2007) 2 BCR 1 ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 5 NMSL 617/2013 hire of the vessel OL because the Plaintiff had chartered OL to Reflect under a time charterparty dated 1st October 2012 which is an agreement relating to the use or hire of the ship. Thus the Plaintiff has a maritime claim in respect of the ship OL.
Mr. Pratap submits that as the Plaintiff's claim is for use and hire of the vessel under a charterparty dated 1st October 2012 with Reflect as the Time Charterer, the party liable in personam for the charter hire claimed by the Plaintiff in the suit is Reflect. However, since Reflect is not the owner of the vessel GC which is sought to be arrested and which is indeed arrested, the party liable in personam is not the owner of the vessel sought to be arrested.
8. Mr. Pratap submits that Article 3 of the 1999 Convention sets out the conditions to be satisfied for exercise of a right of arrest and identifies the ship which is liable to be arrested. Since the ship which is sought to be arrested is not the ship in respect of which the Plaintiff has a maritime claim (the maritime claim being in respect of OL), the relevant provision is Article 3 (2). Under Article 3 (2), arrest is permissible of any other ship ( e.g. GC) which, at the time of the arrest is owned by the person who is liable for the maritime claim (Reflect) and who was, when the claim arose, the owner of the ship in respect of which the maritime claim arose (i.e. of OL) or the demise charterer, time charterer or voyage charterer of that ship (i.e. of OL). The requirement is therefore two fold viz. (a) The person liable for the maritime claim ( Reflect) must be the owner of the arrested ship (GC); and
(b) must also be the owner or demise charterer or time charterer or voyage charterer of the ship (OL) in respect of which the maritime claim arose. Although ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 6 NMSL 617/2013 Reflect is the time charterer of OL, Reflect is not the owner of the ship GC. Having failed the threshold test, the arrest of GC is not permissible and the order of arrest is required to be vacated. Mr. Pratap has submitted that these conditions for the exercise of the power of arrest have been correctly analysed by this Court in the case of Polestar Maritime Ltd. vs. m.v. QI LIN MEN & Ors. (Admiralty Suit (L) No. 3547 of 2008). This judgment was confirmed by the Division Bench in Appeal by order dated 6th January 2010 and the Special Leave Petition was dismissed by order dated 23rd January 2013. Mr. Pratap therefore submits that the Plaintiff is aware that the arrest of the Defendant vessel is not permissible in law which is why the Plaintiff has falsely stated in paragraph 3 of the Plaint that the owner of the vessel GC is Reflect because only if Reflect is the owner of GC, then the arrest of GC is permissible. Mr. Pratap has further submitted that the Plaintiff has deliberately refrained from stating the precise provisions under which the Plaintiff is entitled to an order of arrest of the Defendant vessel. Mr. Pratap therefore submitted that the entire plaint has been prepared with intent to mislead and deceive the Court and the ex parte order has been obtained on the basis of several false and misleading statements made in the Plaint. Not only should the ex parte order be vacated but the Plaintiff should also be ordered and directed to compensate the Defendant for wrongful arrest and also pay exemplary costs.
9. Mr. Ramabhadran, the learned Advocate appearing for the Plaintiff has submitted that Reflect being a bareboat charterer is a de facto owner of the vessel GC. He submitted that though the Defendant No. 2 has relied on a fabricated notice ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 7 NMSL 617/2013 of termination dated 4th March 2013 issued by the Owners of the Defendant vessel to Reflect stating that they would be entitled to withdraw the vessel from the services of the charterers and terminate the charter, the Defendant has proceeded with the matter by stating that the notice of termination dated 4 th March, 2013 is not implemented. Mr. Ramabhadran has submitted that the Defendant has alleged that the Plaintiff has not disclosed in the plaint the applicable provisions of law under which the arrest was sought. He submitted that the Plaintiff is not required to plead law. Even if the Plaintiff has made a reference to any incorrect provision or statute in his pleadings, the Court is entitled to apply the correct law and grant relief to the Plaintiff. He submitted that this Court under the Colonial Court of Admiralty Act, 1890 read with the Colonial Courts of Admiralty (India) Act, 1891 read with Section 22 (1) (a) (xii) of the Supreme Court of Judicature (Consolidation) Act, 1925, is empowered to arrest the Defendant vessel. In support of his submission, Mr. Ramabhadran relied upon the judgment of the Apex Court in the case of m.v. Elizabeth and others4 more particularly paragraphs 20, 26, 27 and 36 of the said judgment. In support of his submission that the Plaintiff's claim is under 'use or hire of a ship', which is a maritime claim and the bareboat charterer (Reflect) is the de facto owner, Mr. Ramabhadran has relied on an unreported judgment dated 25th July, 1996 of a learned single Judge of this Court (Coram: R.V. Vaidyanatha, J.) in Notice of Motion No. 1826 of 1996 in Admiralty Suit No. 59 of 1996. Mr. Ramabhadran submitted that the said judgment is applicable to the present case on all fours.
4 (1993) Supp (2) SCC 433 ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 8 NMSL 617/2013
10. Again, in support of his contention that the Plaintiff's vessel OL which was agreed to be chartered as a support vessel to GC and the Plaintiff has a maritime claim against GC for non-payment of hire under the charter party, Mr. Ramabhadran has relied on the decision of the Court of Appeal in the case of "Eschersheim"5 .
11. Mr. Ramabhadran has also submitted that in order to arrest the defendant vessel for a claim under 'use or hire', the Plaintiff need not have privity of contract with the registered owners. In support of his contention, Mr. Ramabhadran relied on the following two decisions of the learned Judges of this Court viz.:
(a) Unreported judgment dated 17th September 2010 of S.J.Vazifdar, J. in Asia Break Bulk (Singapore) Pvt. Ltd. vs. m.v. Easy Prosperity and others;
(b) Unreported judgment dated 19th October 2011 of S.C. Dharmadhikari, J. in Sinoroches Enterprises Co. Ltd. vs. m.v. Xin Xian An & Ors. wherein reliance has been placed upon the judgment of House of Lords in the case of The Antonis P. Lemos6 .
Mr. Ramabhadran has submitted that in all the aforesaid cases, the Plaintiff's contract was not with the registered owners but with a third party who in turn had a contract with the registered owners. The judgment of the learned Single Judge of this Court (S.C. Dharmadhikari, J.) has been upheld by the Division Bench of this Court reported in 2012 (2) Bom. C.R. 724. The Appeal filed by the registered owners before the Hon'ble Supreme Court of India was also dismissed. 5 (1976) Vol. 1 Page 81) 6 (1985) Vol. 1 Lloyds Law Report Page 283 ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 9 NMSL 617/2013
12. Mr. Ramabhadran has further submitted that even if the Plaintiff has only an arguable case, the order of arrest of the Defendant vessel has to be sustained. In support of his contention he has relied on the decision of the Supreme Court of India in the case of Videsh Sanchar Nigam Limited vs. m.v. Kapitan Kud & Others 7 wherein in paragraph 14 the Hon'ble Supreme Court quoted with approval the decision of the English case in the case of Moschanthy and held thus: "If it is not beyond doubt but on the contrary Plaintiffs has an arguable, even though difficult, case even in law the action would be allowed to proceed to trial".
13. Mr. Ramabhadran further submitted that the application of the registered owners though is an application for vacating the order of arrest is in fact an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 seeking dismissal of the suit on the ground that the Plaintiff has no sustainable cause of action in law. Relying on the judgment of this Court in the case of Crescent Petroleum Ltd. vs. m.v. Monchegorsk and another, in Notice of Motion No. 2317 of 1999 in Admiralty Suit No. 45 of 1996, he submitted that this Court has held that even if there is a misstatement which did not in any way cause prejudice to the Defendants the order of arrest would not be vacated and Plaintiff would not be non-suited at the interlocutory stage. Mr. Ramabhadran submitted that Reflect are indeed de facto owners as held by this Court in the case of m.v. Neuvik. He submitted that assuming without admitting that there was an error on the part of the Plaintiff, such error had no bearing on the frame of the suit inasmuch as the fact 7 (1996) 7 SCC 127 ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 10 NMSL 617/2013 remains that Plaintiff's vessel was chartered as a supply vessel to the Defendant vessel and it is immaterial whether such contract was entered with the registered owners or otherwise. Mr. Ramabhadran also submitted that the application for vacating the order of arrest ought to have been made by Reflect, the de facto owners of GC and not the registered owners of GC. Mr. Ramabhadran submitted that the unreported judgment of this Court in the case of Polestar Maritime Ltd.
(supra) relied upon by the Defendant has no application whatsoever in regard to a claim under 'use or hire of a ship' in which the Defendant vessel is directly involved. Mr. Ramabhadran therefore submitted that the application taken out by the Defendant be dismissed.
14. Mr. Pratap, the Learned Senior Advocate appearing for the Defendant, in rejoinder pointed out that in the oral submissions also the Plaintiff was not forthcoming about the source of his right of arrest and an attempt was made to say that arrest was permissible under the English Supreme Court of Judicature Act, 1925 relying on the judgment of a Learned Single Judge of this Court dated 25 th July 1996 in the unreported case of Flotec Maritime vs. Neuvick. Apart from the fact that if reliance is placed on foreign law it must be specifically pleaded and proved and it is not even pleaded, the said Act has been repealed in England by virtue of the Supreme Court Act, 1981. Consequently, the source of the Plaintiff's alleged right of arrest, assuming it ever was, does not exist. In any event, the said judgment is not relevant because in that case the Plaintiff arrested the very same vessel in respect of which it had a maritime claim because the Plaintiff had chartered the ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 11 NMSL 617/2013 arrested vessel from Neuvick Shipping Co. and the Plaintiff's claim consequently was a claim arising out of the use and hire of the arrested ship. Mr. Pratap has submitted that none of the judgments relied upon by the Plaintiff are relevant to the present case. Mr. Pratap submitted that the Plaintiff in his oral submissions has made a feeble attempt to say that although Reflect is not the owner of the Defendant vessel, Reflect is the demise charterer under a bareboat charterparty and consequently a de facto owner. Apart from the fact that this is not the case in the Plaint and the order of arrest has not been obtained on the basis that Reflect is deemed to be the de facto owner of the ship, Article 3 (2) of the Arrest Convention itself refers to the owner of the ship, the demise charterer of the ship, the time charterer of the ship and the voyage charterer of the ship. Thus the owner and the demise charterer cannot be one and the same as both terms appear in the same Article 3 (2) and have to be given different meanings. Ultimately a demise charterer is only a charterer of the ship and does not have ownership rights and the vessel reverts back to the owner at the end of the charter period. This is expressly provided in the bareboat charter itself in clause 15 (re-delivery).
15. Mr. Pratap has also submitted that reliance on the judgment in the case of Eschersheim8 is also misplaced. He submitted that none of the judgments referred to by the Plaintiff are relevant and are shown only with a view to confuse the issue which is a pure question of law as to whether the Plaintiff has a right to arrest the defendant vessel. The fact remains that the arrest of the vessel is wrongful and 8 (1976) 1 Lloyds Law Reports 81 ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 12 NMSL 617/2013 should be vacated and compensation and costs awarded. Mr. Pratap has further submitted that the Defendant has come to know after the hearing on 21 st March 2013 that on 15th March 2013 a notification was published in the Singapore Gazette that an application has been made by Reflect to the Singapore Court for placing the Company under judicial management. This means that Reflect is on the verge of bankruptcy and the owners of the Defendant vessel who have a claim against Reflect in excess of US $ 436,790.00 for unpaid charter hire are unlikely to be paid. It can never be that the Defendant who also has a claim for unpaid charter hire against Reflect can claim this from the Plaintiff. This is patently absurd and defies logic, law and common sense. Applying this criterion, it would mean that the Defendant can seek recovery from the Plaintiff and arrest the Plaintiff's vessel chartered by Reflect for recovery of their dues. This shows the total absurdity of the Plaintiff's submissions. Mr. Pratap has therefore submitted that the order of arrest of the Defendant vessel be vacated and compensation and costs be awarded.
16. Mr. Ramabhadran in sur-rejoinder repeated and reiterated his submissions and disputed the submissions advanced by Mr. Pratap. He submitted that the registered owners have not provided to the Plaintiff any papers and proceedings leading to the purported notice allegedly published in the Government Gazette at the instance of Reflect and the Plaintiff is therefore unable to deal with the same.
He submitted that the contract between Reflect and ONGC is subsisting and is in force. This further establishes that the purported notification in the official Gazette in Singapore of placing Reflect under judicial management has no bearing ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 13 NMSL 617/2013 whatsoever. In any event, Reflect has not come before this Court to vacate the order of arrest. He submitted that the Plaintiff has a maritime claim against the Defendant vessel and it is immaterial whether Reflect has been placed under judicial management as allegedly claimed by the registered owners. It is therefore submitted that the application taken out by the Defendant be dismissed.
17. I have considered the submissions advanced on behalf of the parties and also the case laws cited by them.
18. The question that arises for determination of the Court in the instant case is whether the Plaintiff has a maritime claim against the Defendant vessel GC. The Plaintiff sure has a maritime claim, for his claim is in respect of use or hire of a ship.
But as submitted by Mr. Pratap, the maritime claim of the Plaintiff is in respect of use or hire of the ship OL. The question therefore is does the Plaintiff thereby have a claim against the Defendant vessel GC. The party against whom the Plaintiff has a claim in personam is Reflect, who had chartered the vessel OL from the Plaintiff (owner of OL). It is equally clear that by reason of this maritime claim, the Plaintiff could arrest any other vessel which is owned by Reflect and which is within the jurisdiction of the Admiralty Court. But the vessel GC sought to be arrested is not owned by, but is taken on a bareboat charter by Reflect . Therefore the Plaintiff, in the first place must show a provision of statue or principle of admiralty law which allows the Plaintiff to make claim for such arrest.
19. The Plaintiff argues that such arrest is permissible under the Colonial Courts ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 14 NMSL 617/2013 of Admiralty Act, 1890 read with Colonial Courts of Admiralty (India)( Act, 1891 read with Section 22 (1) (a) (xii) of the Supreme Court of Judicature Act, 1925.
The relevant provision quoted i.e. Section 22 (1) (a) (xii) of the 1925 Act recognizes the jurisdiction of the Court to hear or determine 'any claim' 'arising out of an agreement relating to the use or hire of a ship'. That only shows this Court has jurisdiction over the maritime claim which the Plaintiff has against Reflect, and not whether such maritime claim exists against any vessel chartered by Reflect (GC in the instant case) or whether the Court has power to order arrest of any particular vessel.
20. The Plaintiff next relies on the judgment of the Supreme Court in m.v.
Elizabeth (supra). The portions of that judgment quoted (paras 12 to 18, 20, 26, 37, 35 to 38) show that (i) the Indian High Courts have all powers which the High Court of England enjoyed in regard to Admiralty jurisdiction in 1890 and thereafter during the period preceding the Indian Independence Act, 1947; and (ii) under such powers the High Court of England had jurisdiction over any claim 'arising out of an agreement relating to the use or hire of a ship'. This again does not take the matter any further. It is one thing to say that the Court has jurisdiction over a claim arising out of an agreement relating to the use or hire of a ship (OL) and quite another to say that under such jurisdiction another vessel (GC) could be arrested by the Court.
21. The Plaintiff next contends that the person against whom the Plaintiff has a claim namely Reflect, is a de facto owner of the vessel GC being a bareboat ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 15 NMSL 617/2013 charterer of GC. The Plaintiff relies on the unreported judgment of Mr. Justice Vaidyanatha in m.v. Neuvik. In that case, the owner of the vessel had entered into charterparty agreement (bareboat charter) with Neuvik Shipping and Neuvik Shipping in turn entered into sub-charter agreement with the Plaintiff for use of the Defendant ship. There was a claim for damages against the Plaintiff by a third party (G.A. International) in relation to transport of cargo by the Defendant ship. The Plaintiff in turn filed a suit against the Defendant ship and applied for its arrest. The owner of the Defendant ship contested this application. The main controversy in that suit revolved around, whether the Admiralty Court has jurisdiction over a claim arising out of an agreement relating to the 'use or hire of a ship' between a bareboat charterer of the ship and the Plaintiff (as opposed to an agreement between the owner of the ship and the Plaintiff). The Court (Per Vaidyanatha, J.) held that an agreement between the bareboat charterer and the Plaintiff for hire of a ship is an agreement relating to 'use or hire of a ship' and the Admiralty Court would have jurisdiction in respect of it. In that context, the Court considered the position of a bareboat charterer vis-à-vis a ship. The Court held that a bareboat charterer or a demise charterer was virtually in the position of a de facto owner of the ship, the essence of such charter being relinquishment of 'command, possession and control' of the vessel in favour of the charterer. This judgment has nothing to do with the facts of the present case. Here, the vessel GC is sought to be arrested on the basis that it is on a bareboat charter with the person against whom the Plaintiff has a claim in respect of another vessel OL. A stray observation that bareboat charterer is in the position of a de facto owner of the chartered vessel when it comes to ::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 16 NMSL 617/2013 entering into an agreement for 'use or hire' of the chartered vessel on a sub-charter cannot lead to a conclusion that the chartered vessel with such bareboat charterer can be arrested for a claim against him on the basis of such de facto ownership.
22. It is not the case of the Plaintiff anywhere in his pleadings that Reflect is the de facto owner of the ship sought to be arrested. Secondly, the Arrest Convention itself (Article 3 (2) thereof) treats owner, demise charterer, and voyage charterer of a ship separately (not equating owner with demise charter). The position of the owner is different from the demise charterer when it comes to arrest of a vessel owned or chartered, as explained by this Court in the case of m.v. Qi Lin Men (per Karnik, J.) where it was held in paragraph 12 by the learned Judge:
"In my view under Article 3 (2) a ship can be arrested in respect of the maritime claim arising against another ship in the following circumstances:
(i) The former (arrested ship) and the latter (in respect of which the maritime claim exists) is owned by the same owner; or
(ii) The latter (in respect of which maritime claim exists) was taken on a demise charter, time charter or a voyage charter by the owner of the former ship which is sought to be arrested"
23. The Arrest Convention, thus allows arrest of a ship for maritime claims against the owner or charterer (demise, time or voyage charterer) of another ship but in either case the ship to be arrested must be of the ownership of such owner or charterer (of such another ship), as the case may be.
::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 17 NMSL 617/201324. The next judgment relied upon by the Plaintiff is the judgment of the Court of Appeal in the case of Eschersheim. In that case, the Defendant's tug Rotesand was engaged for salvage of the ship Erkowit and its cargo. In the course of salvage operations, damage was caused to the ship Erkowit and its cargo. The ship owners of Erkowit proceeded again Jade, a sister ship of Rotesand and the cargo owners proceeded against Eschersheim, another sister ship of Rotesand. The question was, whether such a claim arose out of any agreement relating to use or hire of a ship. It was held that engagement of Rotesand for salvage operations was an agreement for use of the ship, as understood by business men. This judgment is of no assistance to the Plaintiff in this case. Nobody questions here whether the agreement in the instant case is an agreement for use of a ship, namely, OL. It admittedly is such an agreement. But at the same time, it cannot be suggested that the agreement is for use of vessel GC by reason of the ship OL being chartered as a support vessel to vessel GC.
25. The unreported judgments of Vazifdar, J. and Dharmadhikari, J. relied upon by the Plaintiff also do not support the Plaintiff's case. In both cases, the Plaintiff's contract was not with registered owners of the ship, but with third parties who in turn had a contract with the registered owners. It was held in these cases that for a claim in respect of 'use or hire' of a ship, there need not be privity of contract with the registered owner. In both cases, the vessel sought to be arrested was the same vessel which was chartered by the Plaintiff.
::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 18 NMSL 617/201326. In the premises, the Plaintiff has not made out any case for arrest of GC.
There is no principle or authority for the proposition that a maritime claim for unpaid charter hire in respect of vessel A against the hirer thereof can be enforced by arresting vessel B which is on a bareboat charter with the hirer of the former vessel viz. vessel A. In view thereof, the following order is passed:
(i) The ex-parte order of arrest dated 15 th March 2013 against the Defendant vessel GEOWAVE COMMANDER (GC) stands vacated and the Defendant vessel stands released from arrest and is allowed to sail immediately, subject to orders passed in Admiralty Suit (L) No. 319 of 2013;
(ii) Instrument of release to be dispensed with.
(iii) The Learned Senior Advocate appearing for the Defendant makes a statement that there is no caveat against release of the vessel;
(iv) All parties including the Prothonotary and Senior Master, High Court, Bombay and the Sheriff of Bombay to act on an authenticated copy of the order.
(v) All concerned authorities, Port and Customs shall act on a fax/e-mail copy of authenticated copy of this order;
(vi) Plaintiff to pay poundage to the Sheriff of Bombay within a period of two weeks from today;
(vii) Prayer (b) of the Notice of Motion is not granted since the said prayer is not supported by adequate particulars. However, liberty to the Defendant to take out fresh Notice of Motion setting out all necessary particulars and seeking appropriate reliefs in this behalf.::: Downloaded on - 09/06/2013 19:50:48 ::: KPP 19 NMSL 617/2013
(viii) The allegations pertaining to the document dated 4 th March 2013 being fabricated are not decided at this stage as the same is not relevant for deciding the aforestated legal issue. However, the Plaintiff is at liberty to take out an independent application seeking appropriate reliefs in that regard.
28. The Notice of Motion is accordingly disposed of.
(S. J. KATHAWALLA, J.) ::: Downloaded on - 09/06/2013 19:50:48 :::