Document Fragment View

Matching Fragments

1. This Writ Appeal is filed by the petitioner in writ Petition No. 3829/76, against the Judgement of Jeeevan Reddy , J. dismissing that petition. The petitioner is Ednasa Shipping Co., Limited, Hong Kong, represented by their Agents M/s. J. M. Baxi & Co., Bombay.

2. The motor vessel 'Lalinda' belonging to the petitioner arrived at the Vishakaptnam Port on 26th October, 1976. While it was being brought from anchorage to the berth, the two tug lines broke and the ship collided with the jetty. The Port Trust Authorities estimated the damage caused to the jetty at Rs. 16,00,000/-. The Port Trust Authorities called upon the Master of the Ship do deposit that amount failing which they would not permit the ship to sail. While the petitioner contends that the collision took place on account of the negligence of the Port Trust Pilot, who was then in overall command of the ship, the Port Trust Authorities contend that it took place on account of the negligence of the Master of the ship. In this appeal we are not concerned with that question. Some correspondence took place between the parties as to the nature of the Bank Guarantee to be furnished by the petitioner, but they could not arrive at any agreement. It is further stated that on 17th November, 1976, while he said ship was being shifted from Dolphin Jetty to J-3 berth, It collided again with the water barage belonging to the Port Trust, and the Port Trust Authorities demanded a further amount of Rs. 15,000/- by way of damages on that account. The petitioner denied its liability even in respect of this collision. Since the ship was not permitted to sail without furnishing the Bank Guarantee as demanded by the Port Trust Authorities, the petitioner has filed writ petition No. 3829/1976 in this court. It was dismissed. Hence this Appeal.

5. Before we discuss this question we have the state that, as a fact, it is proforma of guarantee prescribed by the Central Government that is being followed in all such cases.

6. Now we will refer to the relevant provisions of the Act and the Regulations. Under S. 116 of the Major Port Trusts Act, if through the negligence of any person having the guidance or command of any vessel. any damage is caused to a jetty, the amount of such damage shall on the application of the Board of recoverable, together with the cost of such recovery by distress and sale under a Magistrate's warrant, of a sufficient portion of the boats, masts, spares, ropes, cables, anchors or stores belonging to such vessel. But, no Magistrate shall issue such a warrant until the Master of the vessel has been duly summoned to appear before him and, if he appears, until he has been heard. No such warrant shall also be issued if the vessel was at the time under the orders of duly authorised employee of the Board and the damage caused was attributable to the order, act or improper omission of such employee. A prima facie reading of that sections shows that an application has to be made to a Magistrate only to recover the amount of damages, but not to determine the amount of damages. It does not show that the Magistrate has to determine the quantum of damages. Section 131 of the same Act provides, that without prejudice to any other action that may be taken under that Act, a Board may recover by suit any rates, damages, expenses, costs or in the case of sale the balance thereof, when the proceeds of sale are insufficient, or any penalties payable to, or recoverable by the Board under this Act or under any regulations made in pursuance thereof. Thus, the section gives a remedy of a suit also to the Board to recover damages. Basing on these two sections, it is argued by the learned counsel for the appellant that the Port Trust can proceed only under these two sections to recover the damages, but it cannot itself determine it and call upon the appellant to furnish the Bank Guarantee with the terms mentioned therein. Here we may note that the Port Trust has not taken any action either under S. 116 or S. 131. Now we will refer to Regulation 42. The Regulations are made under S. 123 of the Major Port Trusts Act. Regulation 42 says, that the Masters and Owners of Vessels shall be held liable for any damage whatsoever that shall have been caused by their vessels or servants to any of the works or property right to detain their vessels in Port until security has been given for the amount of damage caused. This Regulation shows that if damage is caused to any of the works or property of the Board by the Vessels or servants, the Master and Owners of the vessels are liable for that damage. The Board has the right to detain their vessels in the Port until security is given for the amount of damage caused. It implies that the Board can estimate damage and call upon the Master or the Owners of the Vessel to give security for that amount. If he does not give such security, they can detain the vessel in the Port. It cannot be said that it can be invoked only after action is taken either under S. 116 or S. 131 of the Major Port Trusts Act.