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3.1 On 5 June 1994, the Complement of deck officers on M.V.Priyamvada (D1) was as per standard manning rules and practices and included a Master, Chief Officer and 2nd Officer. On that day, in the forenoon, after the storm single was taken down and it was declared that no adverse weather was expected, the Master and the Chief Officer had gone ashore. 3.2 The Defendants contend, all of a sudden at about 17.00 hrs., the storm hit the Port without warning. One vessel which was berthed in port parted her moorings and became a danger to the berth. Various other vessels dragged their anchors. More than five other vessels were affected by the unprecedented cyclonic weather and drifted and grounded in Marmugao Port anchorage.

83. Mr. Vijay Kiran (DW3) was candid enough to concede that the certificate of competency he possessed did not allow him to have independent command of the vessel without Master or Chief Officer. What exacerbates the situation is the categorical admission by Mr. Vijay Kiran (DW3) that, prior to the date of occurrence, he had never taken independent command of any vessel for navigation, maneuvering or shifting.

84. The explanation sought to be offered on behalf of the Defendants that the Master or Chief Officer went ashore as the storm signal was lowered, does not merit acceptance. Both the assessors were in unison that the Master and Chief Officer could not have left Priyamvada under the control of the Second Mate. The assessors reckoned that the hauling down of storm signal is an insufficient justification for the Master and other senior Officers to have left the ship, especially during the monsoon climatic conditions.

Issue Nos.6, 13 and 14 - Act of God / Inevitable accident :

adms 31 of 1995.doc

128. Mr. Sen submitted that the totality of the circumstances would lead to an inexorable inference that the dragging was the result of 'vis major'. It was submitted that the vessels in question were not the only vessels which drifted in the exceptional cyclonic condition. Several ships dragged anchor in that squall. Reliance was placed on the report of Dr. Jalal Basheer (DW4) to show that, apart from MV Sanjeevani and Priyamvada, five more vessels had drifted and/or grounded due to cyclonic weather. Since storm signal was lowered four hours before the storm in question struck, the Defendants were entitled to believe that there was no possibility of any storm. Therefore, there was no reasonable possibility of anticipation of the storm, urged Mr. Sen.

130. Mr. Vernekar joined the issue by advancing a submission that the reliance on behalf of the Defendants on the aforesaid pronouncements is completely misconceived. If the aforesaid judgments are read in their correct 7 (2016) 12 SCC 1 8 (2022) 6 SCC 223 adms 31 of 1995.doc perspective, they support the case of the Plaintiffs. Mr. Vernekar would urge, the Master and the owner of Priyamvada were expected to anticipate that there was reasonable possibility of such occurrence during the monsoon, especially when the storm signal was hoisted on immediate preceding three days at the port. It was submitted that every unexpected wind and storm does not insulate the tort feasor from the liability if there was reasonable possibility of anticipation.