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10 The counsel for the Plaintiff also submitted that the Admiralty Rules in Part III of the Bombay High Court (O.S.) Rules, 1980, in many rules has used the expression any property as opposed to simply the ship. The counsel for the Plaintiff submitted that where the rules are intended to restrict the application to ships and not to any other property, the rules have set it out specifically. For example, the counsel submitted that Rule 941 provides that in a suit in rem an application for the arrest of the property proceeded against shall be supported by affidavit and the affidavit shall state the nature of the claim and the nature of the property to be arrested because where it is intended that only ships can be arrested it is specifically mentioned. The use of the word "property" in certain rules means that Gauri Gaekwad 9 NMS-385-2014.doc anything other than a ship can also be arrested. The counsel also submitted that Rule 946 deals with how the warrant of arrest or writ of summons on a arrested property has to be served. The rule provides as to how the service shall be affected on a ship or cargo or freight and if no property other than a ship, cargo or freight could be arrested, the rules would have said so.

13 In my view, even the arrest of the cargo or freight can be only to the limited extent of the amount payable on the cargo or freight to the owner. In common law the freight is deemed earned only upon completion of voyage. Therefore, the owner of the cargo would pay for freight only when the cargo arrives at destination. In a situation where a person who has a claim against the owner of the ship brings an action in rem, he would also apply for and obtain the arrest of the cargo on board so that when the owner of the cargo comes to take delivery of the cargo, he would deposit the freight payable to the credit of the suit. Otherwise the owner of the ship would appropriate the freight. Similarly, if the freight is yet to be paid to the owner of the vessel against whom the claim is made, to that Gauri Gaekwad 11 NMS-385-2014.doc extent the freight could be arrested. Nothing more than that. I gather support on this from 3The Flora. The Court held, "It is beyond all question that the cargo on board a ship which does damage to another ship in collision is in no respect responsible for the damage. It is equally clear that the freight due, the property of the owners of the ship doing the damage is attachable to make good that damage; and, in ordinary cases, the cargo is arrested for the purpose of making the owners of the cargo, who at that time owe the freight to the shipowners, pay into court to answer the damage which the latter are bound to make good. But the cargo is liable to arrest for no other purpose whatever". In the said decision the Court also held that it is only that cargo on which freight is in presenti due that can be proceeded against."

In African Eagle (supra), this Court, while considering the case of 4M.V. Kaletan, observed as under :-

"In this case four questions arose for the consideration of the Court : (i) Was the Writ good, that was to say, could the owners of the freight be sued apart from the owners of the ship or cargo?; (ii) Could a warrant of arrest be issued against freight without a warrant of arrest against the ship and/or the cargo?; (iii) Was the service of the warrant of arrest properly effected?;
(iv) Was the service of the writ properly affected? The first question was kept open. With respect to the second question, the Court held that freight could not be arrested unless it could be said to be the res and the
3. 1866 A & ELR 450
4. 1914 TLR 30 Gauri Gaekwad

12 NMS-385-2014.doc freight collected and paid into the Bank had ceased to be the res. The court further held that freight if it has been earned, the cargo is held so long as it remains unpaid. With respect to the third question, the Court held that freight could not be arrested without arrest of the cargo. With respect to the fourth question, the court held that freight could not be arrested unless there was access to cargo. It is submitted by the Plaintiff herein that in Kaletan, the Court inter alia concluded that (i) a warrant to arrest for freight could not be issued against the freight separate from the ship and cargo or the ship or cargo; and (ii) the warrant could not be issued against freight already paid. As submitted by Defendant No.3 in the case of Kaletan, the English Court has in fact followed the decision in Castlegate and considered the issue of the Court's power to arrest freight. The Court concluded that warrant against freight cannot be issued separate from ship and cargo or ship or cargo. The Court followed the principle laid down in Castlegate and stated that no warrant of arrest for cargo so as to get at freight had ever been granted apart and separate from the warrant for the corpus of the ship. The attachment of the ship was an essential preliminary to the proper exercise by the Court, on the lien on freight. Hence, if there is no entitlement to arrest the ship, no action against her freight can lie."