The supply of necessaries does not create a maritime lien and a change of ownership of the vessel results in the loss of the plaintiff's right to arrest the vessel.

On 31.8.1991, the vessel M.V. DIGNITY was arrested pursuant to an order passed by this court in this suit at the instance of the plaintiff. The vessel was released subject to the Jordan Shipping S.A. (referred to as the applicant) furnishing a bank guarantee for Rs.22,48,003.06 in favour of the Registrar (O.S.) of this Court. The guarantee was duly furnished. The applicant now claims that the suit should be dismissed and the bank guarantee should be discharged.

2. The suit has been filed by way of an action in rem in this Court's Admiralty Jurisdiction. The plaintiff's claim in the suit is on account of the price of bunkers supplied by the plaintiff between 2-5-90 and 19-9-90 to Neptune Shipping Co. Ltd. as agents of the shipowners. The applicant claims that it had purchased the vessel on 21-11-90 from the original owner of the vessel namely Branjo Shipping S.A. It is stated that the plaintiff had been put on notice of this change of ownership of the vessel as far back as on 16.01.91, when in answer to a demand from the plaintiff for payment of its claim the applicant's agent had stated that the vessel had been sold since the date of the supply in question.

3. It is stated that the plaintiff's claim in this suit was for monies payable in respect of necessaries and that the plaintiff had proceeded to arrest the ship on the basis that by supplying necessaries, the vessel had become subject to a maritime lien. It is submitted that the supply of necessaries did not result in the creation of any maritime lien in respect of the vessel. Reliance has been placed on the following decisions in this context: LAWS & OTHERS & SMITH: THE "RIO TINTO" reported in (1884) 9 AC 356; SHELL OIL CO vs. THE SHIP "LASTRIGONI" reported in (1974) 3 ALR 399; MOHAMMED SALEH BEHBEHANI & CO. vs. BHOJA TRADER reported in (1983) 2 CLJ 334; The "ANEROID" (1877-78) II P.D. 189 and a passage in THOMAS on MARITIME LIENS at pages 13 and 17. It is then submitted that the change of ownership of the vessel resulted in the loss of the plaintiff's right to arrest the vessel and to realise its claim from its sale.

4. It is then submitted that the suit as framed was defective as the plaintiff had not identified the person against whom it sought to realise its claim. The applicant finally submitted that in any event the bank guarantee should be discharged as the plaintiff had deliberately suppressed from this court that there had been a change of ownership in the vessel at the time of obtaining the warrant of arrest on 31.8.91.

5. On behalf of the respondent it has been submitted that there was no dispute that the claim of the plaintiff being based on supply of necessaries would be enforceable against the owner/charter of the ship and not directly against the ship itself except if the owner/charter continued to retain an interest in the ship. It is stated that in fact there had been no change of ownership of the vessel. It is argued that the documents which had been relied upon by the applicant did not establish a sale. There was neither any bill of sale nor any proof of payment of consideration.

6. The plaintiff further submitted that the supply of necessaries had been made to Neptun Shipping Co. Ltd. (hereinafter referred to as 'Neptun') the bare boat charters of the vessel. The original owners of the vessel had entered into a bare boat charter for four years. The period of the charter would expire only on 11th March 1994. The applicant had therefore, purchased the vessel subject to the bare boat charter in favour of Neptun and there was no evidence to the contrary. It is submitted that a bare boat charter is for all intents and purposes the owner of the vessel. It is contended that the plaintiff could enforce this right to receive payment from Neptun in enforcement of statutory right of action in rem under s. 5 of the Admiralty Courts Act 1861. Reliance has been placed on the HEINRICH BJORN (1885) 10 P. 44=(1886) 11 AC 270; The "MONICA S" (1967) 2 LLR 113; "THE ZAFIRO