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2018 Supreme(Bom) 98
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Global Integrated Bulkers Pte. Ltd. - Appellant
Versus
Cargo of 14,072.337 Mts of Limestone & Others - Respondent
Judge's Order No. 253 of 2017 in Commercial Admiralty Suit (Lodging) No. 665 of 2017
Decided On : 19-01-2018
For the Plaintiff :Ashwin Shanker, Bimal Rajasekhar, Ridhi Nyati, Advocates.
For the Defendant :Krishnaraj Thacker, Prathamesh Kamat, Hussain Dholkawala, Aditi Maheshwari i/b Ganesh & Co., Advocates.
The Admiralty jurisdiction of a High Court can be invoked only in an action in rem against the vessel or in an action in rem against the cargo where the claim against the cargo is secured by a maritime claim.
Headnote:
ADMIRALTY - ARREST OF CARGO - MARITIME CLAIM - CONTRACTUAL LIEN - STATUTORY LIEN - JURISDICTION - OWNERSHIP OF CARGO - BILL OF LADING - INCORPORATION OF CHARTERPARTY - PRIVITY OF CONTRACT - ADMIRALTY COURT ACT, 1861 - MAJOR PORT TRUSTS ACT, 1963 - BILLS OF LADING ACT, 1856 - ARREST CONVENTIONS.
Fact of the Case:
Plaintiff, a disponent owner of a vessel, filed a suit against defendants for payment of demurrage and load port demurrage under a voyage charterparty. Plaintiff also sought arrest of defendant no.1 cargo, discharged at Haldia port, claiming a contractual lien under the charterparty and a statutory lien under the Major Port Trusts Act, 1963. Defendant no.3, the consignee of the cargo, challenged the arrest, arguing that the Admiralty jurisdiction of the court could not be invoked for arrest of cargo, there was no privity of contract between plaintiff and defendant no.3, and the alleged liens were not maritime claims.
Finding of the Court:
The court held that the plaintiff's claim was not a maritime claim and that the plaintiff did not have any maritime lien against the defendant no.1 and the defendant no.3. Therefore, the plaintiff could not invoke the Admiralty jurisdiction of the court. The court further held that the plaintiff could not enforce any contractual lien against the defendant no.3, as there was no privity of contract between them and the plaintiff was not a party to the Bill of Lading. The court also held that the plaintiff could not enforce any statutory lien under the Major Port Trusts Act, 1963, as the plaintiff was neither the master nor the owner of the vessel.
Issues: 1. Whether the plaintiff's claim was a maritime claim and whether the plaintiff had a maritime lien against the defendant no.1 and the defendant no.3? 2. Whether the plaintiff could enforce a contractual lien against the defendant no.3? 3. Whether the plaintiff could enforce a statutory lien under the Major Port Trusts Act, 1963?
Ratio Decidendi: 1. The court held that the plaintiff's claim was not a maritime claim and that the plaintiff did not have any maritime lien against the defendant no.1 and the defendant no.3. The court relied on the following principles: * The Admiralty jurisdiction of a High Court is to hear and determine any question on a maritime claim only against any vessel. * A maritime lien is a right given by maritime law to a person other than the owner of a vessel to detain the vessel and its cargo until a claim is paid. * The plaintiff's claim for demurrage and load port demurrage was not connected with any vessel and therefore could not be considered a maritime claim. * The plaintiff did not have any maritime lien against the defendant no.1 and the defendant no.3 because the plaintiff was not a party to the Bill of Lading and did not have possession of the cargo. 2. The court held that the plaintiff could not enforce a contractual lien against the defendant no.3 because there was no privity of contract between them and the plaintiff was not a party to the Bill of Lading. The court relied on the following principles: * A contractual lien is a right given by contract to a person to retain possession of goods until a debt is paid. * There was no privity of contract between the plaintiff and the defendant no.3 because the plaintiff was not a party to the Bill of Lading. * The plaintiff could not enforce any contractual lien against the defendant no.3 because the plaintiff was not a party to the Bill of Lading. 3. The court held that the plaintiff could not enforce a statutory lien under the Major Port Trusts Act, 1963, because the plaintiff was neither the master nor the owner of the vessel. The court relied on the following principles: * A statutory lien is a right given by statute to a person to detain goods until a debt is paid. * Section 60 of the Major Port Trusts Act, 1963 provides for the exercise of a pre-existing lien by the agent or the ship-owner. * The plaintiff was neither the master nor the owner of the vessel and therefore could not enforce a statutory lien under the Major Port Trusts Act, 1963.
Final Decision: The court dismissed the plaintiff's Judge's Order No.253 of 2017 with costs quantified at Rs.50,000/- to be paid by the plaintiff to the defendant no.3 within two weeks from the date of the order.
1. The plaintiff has filed the Judge's Order No.253 of 2017 inter-alia praying for arrest of the defendant no.1 cargo of 14,072.337 Mts of limestone, discharged from m.v. DONG TANH presently in the port and harbour at Kolkatta, in the State of West Bengal and seeks a further order that in the event of the defendants depositing in this Court the sum of US$ 332,007.76 together with interest on the principal amount of US$ 282,007.76 at the rate of 12% p.a. from the date of institution of the suit till payment / realization, together with poundage or furnishing a security to the satisfaction of the Admiralty Registrar, High Court, Bombay in the sum of US$ 332,007.76 together with interest on the principal amount of US$ 282,007.76 at the rate of 12% p.a. from the date of institution of the suit till payment / realization etc. the said warrant of arrest shall not be executed against the defendant no.1 cargo. The plaintiff has filed commercial admiralty suit against the defendants inter-alia praying for an order and decree to pay to the plaintiff a sum of US$ 332,007.76 together with interest on the principal amount and for arrest of the defendant no.1 cargo. Some of the relevant facts for the purpose of deciding this Judge's Order are as under:
2. It is the claim of the plaintiff that the plaintiff is the disponent owner of the vessel m.v. DONG TANH. Dong Do Marine JSC time chartered the vessel to Dooyang Limited. The said Dooyang Limited time chartered the vessel to Amaranthe Shipping Pte. Ltd. The said Amaranthe Shipping Pte. Ltd. time chartered the vessel to Global Integrated Bulkers Pte. Ltd. (defendant no.1). By a voyage charter-party dated 2nd June, 2017, the plaintiff chartered the vessel m.v. DONG TANH to the defendant no.2 for carriage of the defendant no.1 cargo. It is the case of the plaintiff that the plaintiff instructed the head owner of m.v. DONG TANH to issue the original Bill of Lading No.DP/CEB-001 dated 23rd August, 2017 with the defendant no.2 as the shipper and defendant no.3 as the consignee. The Bill of Lading incorporated all the terms of the charterparty dated 2nd June, 2017 and bound all holders thereof to the terms of the charterparty.
3. It is the case of the plaintiff that on 5th September, 2017, the defendant no.1 cargo was discharged at Haldia port. It is the case of the plaintiff that an amount of US$ 282,007.76 became due and payable to the plaintiff under the said charter-party dated 2nd June, 2017 which amount was initially due from the defendant no.2. The defendant no.3 accepted the Bill of Lading with the knowledge of alleged encumbrance of the plaintiff. On 5th September, 2017, the plaintiff issued a notice of lien upon Haldia port.
4. It is the case of the plaintiff that on 23rd October, 2017, the Kolkatta Port Trust (Haldia Dock Complex) started threatening the plaintiff that it would force the agent to issue delivery order for delivery of cargo. According to the plaintiff, the defendant no.2 has been influencing the port trust to get involved in the contractual matters. On 14th November, 2017, the plaintiff approached this Court for arrest of the defendant no.1 cargo contending that the plaintiff has its contractual lien against the said cargo.
5. Mr.Ashwin Shanker, learned counsel for the plaintiff invited my attention to the Fixture Note (Voyage Charterparty) dated 2nd June, 2017 between the plaintiff and the defendant no.2 and more particularly the terms and conditions mentioned therein. Clause 25 of the said Fixture Note provided that any disputes out of the said Fixture Note was to be referred to arbitration in Singapore according to English Law. Clause 4 of the said document provided about the quantity of limestone in bulk and minimum 20,000 MT. Discharging ports mentioned in the said document was 1SB 1 SP HALDIA, ECI – AAAA. Under the said document, the freight payable was as per charterparty referred therein. Clause 29 of the said Fixture Note provided “Otherwise as per clean ge
