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Ekon Shipping And Trading Pte Ltd vs The Owners And Parties Interested In The ... on 7 August, 2025
cites
Section 9 in The Admiralty (Jurisdiction And Settlement Of Maritime Claims) Act, 2017 [Entire Act]
Epoch Enterrepots vs M.V. Won Fu on 29 October, 2002
The defendant no. 1 also submits that in
view of the findings in [Epoch Enterrepots] (supra) and Sunil B. Naik
(supra) as also according to the definition in Dictionary of Shipping
Terms (6th edition), the defendant no. 2 is not a disponent owner as
claimed by the plaintiff and as such does not come within Section 5(1)
Sunil B. Naik vs Geowave Commander on 9 March, 2018
The said vessel thereof is not liable to an action in rem under
Section 5 of the 2017 Act on the basis of the statements made in the
affidavit in arrest. The defendant no. 1, therefore, says that the order of
arrest dated 2nd August, 2025 should be vacated and the defendant no. 2
should be directed to put in actual security in respect of the undertaking
as directed by the said order since it is a copy from Singapore and may
not be having any asset within the jurisdiction of this Court.
On behalf of the plaintiff, it is submitted that the plaintiff upon
having made out a prima facie case, was favoured with an order of arrest.
The under taking as directed to be given by the order dated 2 nd August,
2025 has been complied with. There has been no change in situation
from 2nd August, 2025 when the said vessel was arrested and as such no
question of vacating the order dated 2 nd August, 2025 does not arise.
In reply to the contention of the defendant no. 1, the plaintiff by
referring to clause 15, 48, 99, 105, 106 and 107 submits that on a
holistic reading of the said agreement, it will be evident that the same is
a demise charter agreement and as such, the plaintiff as a demise
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charter was entitled to seek an order of arrest and is further entitled to
retain such order of arrest after having obtained the same. The
provisions of Section 5 (1) and (b) of the 2017 Act permits passing of
such order at the instance of the plaintiff particularly when the maritime
claim of the plaintiff has not been disputed by the defendant no. 1. The
plaintiff says that it is not the nomenclature but the substance of the
agreement characterizes it. The terms of the agreement is, therefore,
required to be looked into as a whole. Referring to Sunil B. Naik (supra)
the plaintiff says that the Supreme Court has categorically held that the
substance of the agreement is to be considered and not is nomenclature.
The defendant no. 2 says that on a reading of the entire agreement
between CATIVERA Shipping Co. S.A. and defendant no. 2, it is
absolutely clear that the defendant no. 2 is either a demise charter or a
disponent owner of the said vessel. The plaintiff, therefore, submit that
the vacating the application being G.A. 2 of 2025 should be dismissed
while the order of arrest should be suitably extended and the application
being G.A. 1 of 2025 be heard on affidavits.
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