Indian Kanoon - Search engine for Indian Law

3.3 Pursuant to the said Voyage Charter Party Agreement a total quantity of 53,575 MT Indonesian Steam Coal in Bulk was loaded on the Vessel on 21.10.2018. Consequently Bills of Lading dated 21.10.2018 were issued by the Plaintiff's Agent "PT Wallem Sentosa C/AS/11/2019 IA ORDER Shipping Service" at the load port, in conformity with the Mate's Receipt issued by the Master of the Defendant Vessel. Such Bills of Lading were signed by the plaintiff's agent pursuant to a post facto Letter of Authority dated 23.10.2018, issued by the Master of the Vessel. The Bills of Lading clearly mentioned "Freight payable as per Charter Party dated 12/09/2018". The said Bills of Lading were issued showing one PT Energi Lintas Samudra (representative of Nava Investment PTE LTD of Indonesia) as the shipper with further endorsement "To Order of Habib Bank Zurich (Hong Kong) Ltd, Hong Kong" and showing notified parties as (1) AR. Trading Co Ltd and (2) Torq Commodities Private Limited. The said Bills of Lading issued by plaintiff's Agent, remained in its safe custody, as per the terms of the Charter Party. The Head-

3.7 On 20.11.2018, the plaintiff's agent sent an e-mail to the Head Owners' Agent (Forerunner Shipping Company Limited) and the Master of the Vessel, informing them that old contract between Shipper and Torq Commodities LLC stood cancelled and therefore, earlier load port Bills of Lading would remain cancelled. They were also informed that the details of revised Mates' Receipts and Bills of Lading would be forwarded to them for their approval.

3.8 By way of e-mail dated 22.11.2018, the Head Owner through its Agent (Forerunner Shipping Company Limited) advised plaintiff's Agent to stamp the original Bills of Lading null & void and courier them along with Mates' Receipts to the head owners on the address provided. It is further its case that the Head owner and the Master of vessel maintained a stoic silence regarding the approval of the revised Mate's Receipt and Bill of Lading. While acting in good faith, the Plaintiff cancelled the Bills of Lading and Mates' receipts and sent the same to the Head Owner of the Vessel to re-issue the Mates' Receipts. The plaintiff, subsequently, also sent the revised draft of the Bills of Lading and Mates' Receipts to the Master of the Vessel and the Head Owners for their confirmation. The plaintiff also requested the Master of the Vessel to sign and send the Mate's Receipt, so that plaintiff's Agent could issue the switched Bill of Lading. As stipulated in the Charter Party, the Bill of Lading had to be issued in conformity with the Mate's Receipt only. Therefore, even though the plaintiff's Agent had the Letter of Authority to issue the switched Bill of Lading, the same could not be done in absence of the Mate's Receipt. The plaintiff also C/AS/11/2019 IA ORDER sent various reminders, but, the same was of no consequence. In fact, at one point even the Shipper expressed its displeasure over the delay in signing of the Mate's Receipt by the Master of the Vessel. The Owner and the Master of the Defendant Vessel continued to maintain their silence over the issuance of the switched bill of lading and Mate's Receipt. Meanwhile, the plaintiff learnt from the market through reliable sources that Nava Investment Private Limited acting through PT Energi Lintas Samudra as the Seller/Shipper of the Cargo on account of its disputes with the original buyer had terminated the earlier Sale Purchase Contract with Torq Commodities LLC and had entered into a Re-Sale Contract with Vimal Coal Private Limited.

18.3 Lianyl Shipping, when came to know about the dispute between the shipper-Nava Pvt. Ltd. and the old buyer-Torque Commodities Pvt. Ltd., it requested the plaintiff's agent on 22.11.2018 to send original bills of lading to Lianyl. It was confirmed from the plaintiff's agent that it was still holding the original bills of lading. The agent had also insisted that only on written communication from the principal, i.e. the Plaintiff and the head owner-Best Excellence, the same shall be released. It was also clarified that the cancelled bills of lading should be parted with and accordingly, on 20.11.2018, the plaintiff's agent sent an email to the head owner's agent, i.e. Forerunner Shipping Company Ltd., and the master of the vessel, informing that the old contract between the shipper-Torque Commodities stood cancelled, and therefore, the earlier load port bills of lading would remain cancelled. It C/AS/11/2019 IA ORDER was also informed that the details of revised mate's receipts and the bills of lading shall be forwarded to them for their approval. The Head Owner through its agent advised the agent of the plaintiff to stamp the original bills of lading as the null and void and courier the same along with mate's receipt to the head owner, at the address provided by the head owner. According to the plaintiff, acting in the good faith, the plaintiff cancelled the bills of lading and the mate's receipt and sent the same to the head owner with a hope to get the mate's receipt reissued. It also sent revised bills of lading and the mate's receipt to the master of the vessel and the head owner for its confirmation. A request was made to the master of the vessel to sign and send Mate's receipt so that the plaintiff's agent can issue new switched bills of lading. The charter party agreement stipulated that the bills of lading are to be issued in conformity with the mate's receipt. Therefore, in absence of mate's receipt, the switched bills of lading could not be issued, even if, the plaintiff's agent was having the letter of authority to issue such switched bills of lading. Nothing was done at the end of the head owner or the master of the vessel and they both continued to maintain silence over the issuance of the switched bills and the mate's receipt. It the meantime, it was realized that the Nava Investments Pvt. Ltd. acting through P.T. Energy Lintas Samudra, as the shipper, on account of the dispute with the original buyer had terminated the earlier sale purchase contract with Torque and had entered into a resale contract with the Vimal Coal Pvt. Ltd.. In the meantime, the letter of authority, issued on 23.10.2018, in favour of the P.T. Energy Lintas Samudra Shipping Service had been cancelled by the head owners of the vessel on 20.11.2018.

C/AS/11/2019 IA ORDER 18.6 In this entire chain, Clause 58 between the plaintiff and the Admiral in the Charter Party entered on 12.09.2018 is Prima facie found vital to be referred to. This provides for approval of the head owner for allowing the split bills and the switched bills of lading and such approval is not to be delayed or withheld, unreasonably. Even if, the plaintiff's claims are independent, it will not be possible to hold at this stage that the cancellation of the Letter of Authority on the part of the head owner has absolutely no causal link between the plaintiff's claim and the cancellation of such letter of authority. The averred claim of the less paid hire existed, of course, before the cancellation of the letter of authority. But, there is a specific allegation on the part of the plaintiff that it had made a request to the head owner after, after once the Lianyl intervened and made a request for original bills of lading. The plaintiff's agent had stamped the original bills of lading as null and void and had couriered the same along with mate's receipt to the head owner, at the address, it had given. Thereafter, repeated requests were made on the part of the plaintiff to the head owner and the master of the vessel for the revised mate's receipt and bills of lading which had met with the stoic silence. This had happened on account of the shipper having dispute with the old buyer Torque Commodities and thereafter, the new buyer Vimal Coal had been found by the shipper. The request and the repeated requests made to the master of vessel to supply the mate's receipt was for the switched bills of lading, keeping the issue open. The same was not responded to and eventually the letter of authority had been recalled. Therefore, to say that this has absolutely no connection with the chain of events that took place of cancellation of the charter party, as Lianyl was not paid by the Admiral Shipping and the Admiral Shipping has not been paid by the plaintiff, which had not been paid by Excelzior may not be looked at in isolation.