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1981 Supreme(Cal) 154
IN THE HIGH COURT AT CALCUTTA
Dipak Kumar Sen, J.
Mohamed Saleh Behbebari & Co., also known as Md. Saleh Behbehari - Plaintiff
Versus
Owners and Parties interested in the Vessel M. V. "Notis" also known as "Broja Trader" - Defendants
Decided On: May 4, 1981
J. N. Roy, Tapas Banerjee and C. R. Dutt, For Plaintiff
Jahar Goho, For Defendants
A statutory lien arising from an action in rem could not be of avail against a subsisting charge on the ship and could not override the claims of a bona fide purchaser for value in the meantime.
Headnote:
ADMIRALTY JURISDICTION - MARITIME LIEN - STATUTORY LIEN - CHANGE OF OWNERSHIP - ARREST OF VESSEL - RELEASE OF VESSEL - SECURITY - PRACTICE AND PROCEDURE - ADMIRALTY RULES - CODE OF CIVIL PROCEDURE, SECTION 151.
Fact of the Case:
Mohamed Saleh Behbehari & Co. filed a suit in the Admiralty Jurisdiction of the Calcutta High Court against the Owners and Parties interested in the Vessel M. V. NOTIS also known as the "Broja Trader" claiming damages for breach of a Time Charter Party Agreement.
Finding of the Court:
1. The Admiralty Jurisdiction of the Calcutta High Court was limited and a dispute arising out of a Charter Party agreement could not be entertained by the Court in its Admiralty Jurisdiction. 2. The plaintiff's claim was not one which would give rise to any of the recognized maritime liens. 3. A statutory lien arising from an action in rem could not be of avail against a subsisting charge on the ship and could not override the claims of a bona fide purchaser for value in the meantime. 4. A change of ownership of the Vessel prior to the institution of the suit meant that the plaintiff's lien, if any, could not affect or override the rights of the present Owners.
Issues: 1. Whether the Admiralty Jurisdiction of the Calcutta High Court extended to disputes arising out of a Charter Party agreement? 2. Whether the plaintiff had a maritime lien or a statutory lien that could attach to the Vessel? 3. Whether the change of ownership of the Vessel prior to the institution of the suit affected the plaintiff's right to arrest and detain the Vessel?
Ratio Decidendi: 1. The Admiralty Jurisdiction of the Calcutta High Court was limited to matters specified in Clause 26 of the Charter of 1774 and as modified by subsequent legislation, including the Colonial Courts of Admiralty Act, 1890. The jurisdiction was identical to that exercised by the Courts of Admiralty in England in 1891. 2. The plaintiff's claim for breach of a Charter Party did not give rise to any of the recognized maritime liens, such as bottomry, respondentia bonds, salvage, seamen's wages, or damages caused by a ship. The plaintiff could not claim a statutory lien because such a lien could not override the claims of a bona fide purchaser for value. 3. The change of ownership of the Vessel prior to the institution of the suit meant that the plaintiff's lien, if any, could not affect or override the rights of the present Owners.
Final Decision: The Court modified the ad-interim order of arrest and directed the release of the Vessel upon the present Owners furnishing security covering an amount of U.S. $ 4450 in equivalent Indian currency. The Court held that it had the inherent jurisdiction to modify, reduce the amount of security, and also to waive it altogether.
On or about the 25th April, 1981 Mohamed Saleh Behbehari & Co. incorporated under the Jaws of the State of Kuwait instituted this suit against the Owners and Parties interested in the Vessel M. V. NOTIS also known as the "Broja Trader" (hereinafter referred to as the Vessel) in the Admiralty Jurisdiction of this Court claiming, inter alia, the following reliefs:
(a) Judgment against the Vessel and each of her tackle, apparel and furniture for the sum of Rs. 15,47,688.24 P.
(b) Arrest of and/or an order of appraisement of the Vessel and her tackle, apparel and furniture.
(c) Sale of the Vessel and payment of the proceeds thereof to the plaintiff in protanto satisfaction of its claim.
(d) Interim interest and interest on judgment at 18 % per annum.
(e) Costs.
2. The cause of action of the plaintiff in short is as follows:
By and under a Time Charter dated the 19th January, 1981 the plaintiff hired the Vessel alleged to be a Greek Vessel flying Greek flag for reward for crriage of goods from Korea to Kuwait via Calcutta and Madras on stipulated terms and conditions.
3. It is alleged that in breach of the Charter-Party Agreement and the terms and conditions thereof the Vessel failed to sail on the stipulated date and could not maintain the stipulated speed of 12 knots per hour. Further and in breach of the said conditions the Vessel had a defective windlass, her Cargo Ships safety Equipment Certificate expired on the 23rd November, 1980 and her Ship Safety Radio Telegraph Certificate expired on the 23rd January, 1981.
4. As a result of the aforesaid the Vessel sailed from Korea after 37 hours of delay and it took 4 days and 14 hours extra by reason of her lack of speed for the Vessel to reach her destination. There was further delay of a day on account of her defective windlass and after having reached Calcutta the Vessel could not leave the Port in the absence of essential certificates.
5. The plaintiff alleges that as a result of the aforesaid the plaintiff had to incur extra hire charges and charges for extra consumption of diesel and fuel oil, resulting in loss and damages to the plaintiff assessed at U. S. $ 1,90,602 equivalent to Rs. 15,24,816/-.
6. The plaintiff alleges further that the defendants were also guilty of misrepresentations, wrongful acts and fraudulent suppression of material facts, some particulars whereof have been set out in the plaint.
7. The plaintiff's claim for the said sum of U.S. $ 1,90,602 is made up of the following items :-
(a) Hire charges for 37 hours US $ 6,000
(b) Extra diesel oil consumed during the said US $ 975
1½ days
(c) Loss of hiring charges paid to defendants US $ 18,332
for four days and fourteen hours on account of
the Vessel's less speed.
(d) Costs of extra diesel oil and fuel oil US $ 38,460
consumed during the said 4 days and 14 hours
(e) Hiring charge paid to defendants for one US $ 4,000
day's delay in arriving at the Port of Calcutta
due to defective equipment namely "windlass"
(f) Extra expenditure being the costs of the US $ 650
diesel oil consumed by the Vessel for the said
one day's delay
(g) Cost of diesel oil supplied to the Vessel at US $ 6,450
Calcutta for its outward journey to Madras
which did not take place.
(h) Loss of freight on 380 tons of cargo which US $ 10,735
could not be loaded in the Vessel due to wrongful
mis-presentation of the defendants as to the
capacity of the said Vessel.
(i) Loss of profit due to the wrongful failure of US $ 1,05,000
the Vessel to sail from Calcutta to Madras and
from Madras to Kuwait
Total US $ 1,90,000
8. The plaintiff claims the said sum by way of compensation for loss and damages suffered on account of breach of the agreement of Charter Party by the defendants or alternatively as compensation for loss and damages suffered for the wrongful acts, misrepresentation, fraudulent suppression of facts and/or conversion and/or detention of the plaintiff's goods viz. diesel oil supplied to the Vessel at Cal
