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High Court Of Calcutta
Sujit Kumar Sinha
ELBERT OVERSEAS INC - Appellant
Versus
OWNERS AND PARTIES INTERESTED IN VESSEL M.T.STAKHANOVETS - Respondent
G. A. 4367 Of 1997
Decided On : 03/24/1998
ADMIRALTY JURISDICTION - SOVEREIGN IMMUNITY - ARREST OF VESSEL - TERRITORIAL LIMITS - MARITIME LIEN - INTERNATIONAL CONVENTION RELATING TO THE ARREST OF SEAGOING SHIPS, BRUSSELS, 10TH MAY, 1952 - APPLICABILITY IN INDIA - SECTIONS 86, 112(2) OF THE CODE OF CIVIL PROCEDURE, 1908 - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner, a state undertaking of the Russian Federation, sought to dismiss a suit and vacate an order of arrest of a vessel, "M.T. Stakhanovets", owned by the petitioner. The plaintiff, the owner of a vessel "Pkr Board No. 108 Moskva - Class Helicopter cruiser", had entered into an agreement with the charterer of the petitioner's vessel for towage of the said Tow from Scevastopol, Ukraine to the port of Alang in Gujarat. The plaintiff alleged breach of contract and negligence on the part of the charterer and the crew of the petitioner's vessel, resulting in loss and damage. The petitioner contended that it had sovereign immunity under Section 86 of the Code of Civil Procedure, 1908, and that the Admiralty jurisdiction of the court did not extend to Mumbai or the location where the vessel was arrested.
Finding of the Court:
The court held that Section 86 of the Code of Civil Procedure, 1908, which provides for sovereign immunity, does not apply to Admiralty suits, as per the provisions of Section 112(2) of the Code. The court also held that the Admiralty jurisdiction of the court is unlimited, both with regard to pecuniary and territorial jurisdictions, as per the Colonial Courts of Admiralty (India) Act, 1891. The court further held that the International Convention relating to the Arrest of Seagoing Ships, Brussels, 10th May, 1952, although not adopted by legislation in India, is part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.
Issues: 1. Whether Section 86 of the Code of Civil Procedure, 1908, applies to Admiralty suits. 2. Whether the Admiralty jurisdiction of the court extends to Mumbai and the location where the vessel was arrested. 3. Whether the International Convention relating to the Arrest of Seagoing Ships, Brussels, 10th May, 1952, is applicable in India.
Ratio Decidendi: 1. Section 112(2) of the Code of Civil Procedure, 1908, excludes Admiralty suits from the application of Section 86, which provides for sovereign immunity. 2. The Colonial Courts of Admiralty (India) Act, 1891, confers unlimited pecuniary and territorial jurisdiction on the court in Admiralty matters. 3. The principles incorporated in the International Convention relating to the Arrest of Seagoing Ships, Brussels, 10th May, 1952, are part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.
Final Decision: The court dismissed the petitioner's motion to dismiss the suit and vacate the order of arrest of the vessel. The court also directed the petitioner to deposit the rupee equivalent of the amount claimed by the plaintiff in the suit with the registrar of the court, and upon such deposit, the order of arrest would be vacated.
( 1 ) THIS motion by the JSC SEVRYBA ("the petitioner" for short) is inter alia for dismissal of this suit and for vacation of the order of arrest dated 17th october, 1997 and the consequential orders respectively dated 20th October, 1997 and 23rd October, 1997. By the said order of arrest the vessel "m. T. Stakhanovets" ("the said ship" for short) has been arrested.
( 2 ) THE motion is opposed by the plaintiff and supported by the intervener the Russian federation
( 3 ) IT is necessary to set out briefly the facts leading to the present proceedings.
( 4 ) THE petitioner is a "state undertaking" of the Government of the Russian Federation. It is the case of the petitioner that the said ship is the property of the said foreign State.
( 5 ) THE plaintiff is the owner of the vessel "pkr Board No. 108 Moskva - Class Helicopter cruiser" ("the said Tow" for shor ). The said tow belonged to the Russian Navy prior to its purchase by the plaintiff. The said Tow was to be brought to this country for being broken up as scrap.
( 6 ) BY an agreement dated 20th April, 1997 entered into by and between the plaintiff and the charterer of the said ship the "international Towing service Inc. ", the said charterer agreed to towage of the said Tow from the port of Scevastopol, Ukraine to the port of Alang in the State of Gujarat by the said ship and there deliver the said Tow to the plaintiff in good order and condition. The Bill of lading for the towage of the said Tow was also signed on behalf of the said charterer and made over to the plaintiff as the shipper and the consignee of the same. The copies of the said contract and Bill of Lading are annexures to the plaint.
( 7 ) IT is the case of the plaintiff that it had upto the date of Institution of this suit suffered loss and damage in the sum of US Dollars 409, 509 by reason of the breach by the said charterer of its contract of towage of the said Tow as well as the negligence on the part of the crew of the said ship and that the plaintiff is likely to suffer further loss and damage. Particulars of the breaches committed by the said charterer as well as of the negligence of the crew are set out in the plaint.
( 8 ) IT is not in dispute that the said ship at the material time was plying under a time charterparty agreement entered into by and between the said charterer and the petitioner. It is not the case of the petitioner that its said time charterparty agreement has expired, A copy of the said time charterparty agreement is an annexure to the petition.
( 9 ) IT is further not in dispute that the said ship at the time of its arrest was employed in a commercial venture.
( 10 ) ONE further fact which is relevant is that the said ship was arrested and brought down to the port of Mumbai and it is since then anchored there.
( 11 ) IT is convenient at this stage to refer to the orders passed by this court in its Admiralty jurisdiction on the interlocutory application of the plaintiff in this suit. The first in sequence is the order of arrest of the said ship dated 17th October, 1997. The second order dated 20th October, 1997 is a direction on the coastguards to implement the said earlier order dated 17th October, 1997. The third order dated 23rd October, 1997 restrains the defendants and the crew members of the said ship form interfering with the passage of the said Tow to the Port of Alang.
( 12 ) THE aforesaid orders are still subsisting.
( 13 ) IT will be recalled tthat the said ship is still under a time charterparty agreement between the charterer and the petitioner. I have therefore doubts about the locus standi of the petitioner to maintain the present motion. To my mind, the right of the petitioner if at all can only arise after the expiration of the said agreement. However, the parties proceeded to argue their case on a different basis.
( 14 ) MR. Bachawat appearing on behalf of the petitioner rested his case on two grounds in support of the motion, namel
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