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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, B.P. Colabawalla, JJ.
Altus Uber – Appellant
Versus
Siem offshore Rederi As – Respondent
Commercial Appeal (L) No. 465 of 2018, 86 of 2019; Notice of Motion (L) No. 1392 of 2018, 1089 of 2018, 1137 of 2018; Admiralty Suit (L) No. 20 of 2018; Judges Order No. 107 of 2018
Decided On : 23-07-2019
Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017 – Section 14 – Notice of Motion – Appeal challenges the judgment and order of a single Judge delivered in a Notice of Motion being Commercial Notice of Motion (L) in Commercial Admiralty Suit (L) – By the order under challenge, pronounced single Judge has proceeded to dismiss the Notice of Motion with costs quantified at rupees five lakhs – The appellant before us is the original defendant in the Suit whereas the respondent is the original plaintiff. – They shall be referred to hereafter as plaintiff and defendant. – Held, It is in that context that the observations very heavily relied upon by Mr. Chinoy are made. – However, in paragraph 14, the Honble Supreme Court has held that a demise charterer like RG who is the owner for services stipulated, assumes in large measure the customary rights and liabilities of vessel owners in relation to third persons, who have dealt with him or with the ship, illustratively, repairs and supplies ordered for the vessel, wages of seamen, etc. – It is in that context that the appeal of Sunil Naik was dismissed. – It is clear that on the date when the matter was considered by this Court, the Admiralty Act had not been brought in to effect. – Court is therefore, of the clear opinion that the Motion of the owner of Geowave Commander was allowed, but in distinct factual circumstances. – Therefore, the observations made in this judgment and particularly highlighted, namely, paragraphs 29, 30, 36 to 38 and 41 ought to be viewed in the peculiar factual backdrop. – Sunil B. Naiks case is, therefore, clearly distinguishable. – Court cannot, unmindful of the language of the Admiralty Act, 2017 and the factual conspectus before us, apply these observations. – Therefore, court conclusion is that this decision is distinguishable on facts and also because that when it was delivered the legal scenario was different. – The Honble Supreme Court itself noted that the Conventions held that though the draft of the Admiralty Act, 2017 was in place, the Admiralty Act, 2017 received the assent of President of India and was duly published in the Gazette on the said date, but the date of its coming into force was not notified. – In fact, the Honble Supreme Court says that the dispute before it is a reminder to the Government to bring into force the Act. – Scenario has undergone a change after the Act is indeed brought into effect and the learned single Judge has decided the issue at hand applying the provisions of the Admiralty Act, 2017. – Court must again clarify that the observations and findings in the impugned order as endorsed by us are only tentative and prima facie. – They are recorded for the purpose of disposal of an objection raised to this Courts jurisdiction. – Since the argument was that the allegations set out in the Plaint may be assumed to be true and the appellant as also M/s. Swordfish proceeded on a demurrer, the learned single Judge as also court have dealt with the matter accordingly. – Needless, therefore, to clarify that these prima facie observations and tentative findings will not influence the merits, much less the outcome of the suit. – All contentions as far as merits of the claim are, therefore, kept open. – Appeals Dismissed
JUDGMENT :
S.C. Dharmadhikari, J.
This Appeal [Appeal (L) No. 465 of 2018] challenges the judgment and order of a learned single Judge (K.R. Shriram, J.) delivered in a Notice of Motion being Commercial Notice of Motion (L) No. 1392 of 2018 in Commercial Admiralty Suit (L) No. 20 of 2018.
2. By the order under challenge, pronounced on 25th September, 2018, the learned single Judge has proceeded to dismiss the Notice of Motion with costs quantified at rupees five lakhs. The appellant before us is the original defendant in the Suit whereas the respondent is the original plaintiff. They shall be referred to hereafter as plaintiff and defendant.
3. The plaintiff instituted the Suit in the Admiralty and Vice Admiralty Jurisdiction of this Court. Now, this Suit is numbered as Commercial Admiralty Suit No. 62 of 2018.
4. At the outset, and before we proceed to refer to the allegations in the Plaint, we at once clarify that this Appeal is under section 14 of The Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017 [for short "The Admiralty Act"]. The parties before us have proceeded on the footing that the instant appeal is maintainable. Hence we are not called upon to decide the issue of maintainability or consider any objection of that nature. We have, for the purposes of the present Appeal, proceeded on the basis that the impugned order is capable of being challenged in an appeal under section 14 of the Admiralty Act.
5. Now, we come to the allegations in the Plaint. The plaintiff is a company, incorporated under the laws of Monrovia. It gives its vessels on various kinds of Charterparty, namely, Bareboat, Time and Voyage charters. The defendant is an offshore supply vessel/platform vessel flying the flag of Liberia and presently lying and being at Mumbai i.e. within the territorial waters of India and within the Admiralty jurisdiction of this Court. The defendant is owned by Marine Engineering Diving Services FZC, [for short "MEDS"], a company incorporated under the foreign laws, having its registered office at United Arab Emirates.
6. The Suit is filed, inter alia, for recovery of an amount of US$ 28,889,304/-, which includes charter hire in the sum of US$ 6,797,554/- and claim for capital value of the vessel in the sum of US$ 20,061,750/- together with further interest and costs due to breach of the conditions stipulated in the Bareboat Charterparty dated 13th May, 2015, copy of which is annexed as Annexure A to the Plaint. It is claimed that as owners of a motor vessel Siem Marlin, the plaintiff offered the same on Bareboat Charterparty to Marine Engineering Diving Services FZC for a period of five years with a purchase obligation at the end of five years or a purchase option at the end of the first/second/third/fourth year from the date of delivery. The plaintiff states that the process of chartering Siem Marlin had taken place through a common chartering broker Fathom Offshore Services Limited. The brokers were also involved in correspondence relating to compliance of the Bareboat Chaterparty terms.
7. In paragraph 8, the plaintiff reproduces the relevant clauses of the Charterparty.
8. In paragraph 9, it is alleged that as per the terms of the Bareboat Charterparty, the charterers/the owners of the defendant vessel were required to take delivery of Siem Marlin between 15th and 25th October, 2013. As per the terms and conditions stipulated in the Bareboat Charterparty, fifteen days prior to the delivery of the vessel to the charterers, they were required to furnish bank guarantee for US$ 40,00,000/-. This is to guarantee full performance of the obligations under the charterparty. The bank guarantee was to be furnished between 10th to 15th September, 2015. The charterers/owners of the defendant, in unequivocal terms, represented to the plaintiff that they would be furnishing the requisite performance bank guarantee to
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