The plaintiff must establish a prima facie case for the arrest of a vessel under the Admiralty Act, and mere conjecture and surmise are insufficient to support such a claim.

JUDGMENT :

G.S. Patel, J.

1. This order disposes of the original Defendants’ (present Appellants’) Interim Application No.(L) No.11655 of 2022 in the main suit, along with the Commercial Appeal (L) No 18306 of 2022.

2. The reason the Interim Application itself comes before us requires explanation.

3. The Plaintiff, Polygreen International DMCC (“Polygreen”) is a foreign company incorporated in the UAE. It provides salvage services and assistance to ships in distress. It also undertakes emergency oil spill response services.

4. The 1st Defendant, MT Pamboor 2, is a vessel owned by the 2nd Defendant company, Shiny Shipping and Logistics Private Limited (“Shiny Shipping”). MT Pamboor 2 operates possibly as a lighter, or, at any rate, as a barge ferrying cargo to vessels either from other vessels or from land-based installations. MT Pamboor 2 (IMO 9914852) is a registered river sea vessel (type II). The vessel operates only in Indian territorial waters so far; specifically, its present contractual operations are in Mumbai Harbour and within the Mumbai Port Trust and the Jawaharlal Nehru Port Trust limits.

5. Polygreen brought suit on 1st April 2022 and, on the basis of that a case set out in the plaint, to which we will return shortly, obtained an order of arrest against MT Pamboor 2.

6. On 8th April 2022, MT Pamboor 2 and Shiny Shipping filed the captioned Interim Application (L) No. 11655 of 2022 to vacate the order of arrest. It seems that on 20th May 2022, MT Pamboor 2 and Shiny Shipping moved the learned Vacation Judge for ad-interim relief. The specific ad-interim relief sought was that upon MT Pamboor 2 and Shiny Shipping’s undertaking not to move the vessel outside the Indian territorial waters, MT Pamboor 2 should be allowed to continue to perform its contracts and go about its routine business without providing security. This application was opposed. On 6th June 2022, the learned single Judge passed an order, one that is assailed in the present Appeal. By that order, the learned single Judge ordered the Defendants, MT Pamboor 2 and Shiny Shipping, to provide security in the full amount of the claim US$ 1,416,293 either by a deposit or by a bank guarantee of a nationalised bank, the bank guarantee to carry interest at 4.5 % per annum; and then said that upon the Defendants making this deposit, MT Pamboor 2 would be permitted to ply within 12 Nautical Miles within territorial waters “while under arrest”.

7. The Defendants came up in Appeal. The principal ground canvassed, and we think rightly, by Mr Dhond for the Appellants was that the impugned order could not have required both the furnishing of a full security and yet continued the arrest. We believe Mr Dhond is correct. It is much too well settled to admit of any repetition or need for an authority that when a vessel is arrested, that order of arrest can always be vacated upon furnishing full security. Indeed, that is the right of the arrested Defendant vessel, and of its owner. Indeed, the order of arrest itself says as much. Thus, after requiring furnishing a full security, MT Pamboor 2 could not possibly have been ordered to remain “under arrest”. That order was plainly contrary to settled law and would have had to be set aside.

8. Mr. Dhond pointed out that there were other errors in the impugned order including, for instance, a finding that once arrested, even third party cargo on board the vessel would stand arrested or attached.

9. As it happens, we need not examine the Appeal itself or the impugned order in any detail. The reason is that both sides specifically accepted our suggestion that, with their consent, we would withdraw the Defendants’ Interim Application for vacating the order of arrest to ourselves and decide it here rather than requesting an already overburdened learned Single Judge to give the matter priority. That the matter needed priority was, to our minds not in doubt, because, as Mr Dhond pointed out, Shiny Shipping was incurring significant losses on ac