IMPORTANT POINT
The court balanced the interests of the parties by ensuring fair assessment and storage of goods, preservation of the Port's lien, and a fresh auction for the vessel.

JUDGMENT :

Moushumi Bhattacharya, J.

1. This is an application filed by Marintrust Limited, a body formed and constituted under the appropriate laws of Republic of Bangladesh and having its office at Dhaka, who claims to be the Owner of the vessel M.V. Marintrust - 01, which is presently lying within the admiralty jurisdiction of this Court at Syama Prasad Mookerjee Port, Kolkata. The vessel was arrested in an admiralty suit instituted by the plaintiff nos. 1 and 2 for compensation on account of damages suffered by the plaintiffs.

2. The brief facts which led to the Order of Arrest are as follows. The vessel while at its berth in the Kolkata Port had capsized/listed on 23.03.2022 and the containers loaded in the vessel supplied and submerged in the water. The vessel was brought to an upright condition on 15.09.2022 and the cargo was recovered thereafter. The plaintiffs obtained an Order of Arrest on 29.9.2022 from a Co-ordinate Bench. The Co-ordinate Bench also passed an order dated 28.6.2023 for sale of the vessel on applications made by the plaintiffs for sale and appointment of Receiver. Joint Special Officers were appointed for conducting the sale and were also directed to file reports of the bids along with valuations of the vessel on the date as published in the advertisement / notice of sale. The Division Bench refused to interfere with the order directing the sale of the vessel the orders of the Division Bench including of 30.6.2023, 5.7.2023 and 18.7.2023 are part of the records.

3. The Owner of the vessel/defendant no. 1 now seeks an appointment of a Surveyor over the goods contained in the containers and for a direction on the Surveyor to report on the quantum of damage caused to the goods.

4. The basis of the relief sought, as articulated by learned counsel appearing for the Owner, is that the plaintiff’s claim for loss and damages must be mitigated and re-assessed in light of the subsequent salvage of the containers. The plaintiffs and the Port Authorities are represented and learned counsel resist the prayer for appointment of Surveyor without first taking care of attending complications. The primary difficulty, as argued on behalf of the Port, is that the vessel has been lying in a dilapidated condition in the premises of the Port from 29.9.2203 without any attempt made on the part of the Owners to pay the port charges and other incidental charges.

5. Learned counsel appearing for the plaintiffs also argues in favour of immediate sale of vessel and offers suggestions for resolution of the logistics before any steps are taken for removing containers from the precincts of the Port.

6. The submissions made on behalf of the parties highlight the following issues which are required to be considered before passing any orders on the present application.

7. The claim of the Owner is only on the vessel and not on the goods inside the containers. Likewise, the claim of the Port is also limited to the vessel. The claim of the plaintiffs is on account of the loss of goods stored only in some of the containers and not the goods stored in the 165 containers which are presently lying in the Port premises.

(i) Hence, only the plaintiffs can identify the containers in which their goods are stored.

(ii) Since all the goods are Customs duty paid goods and meant for export, the salvaged goods/containers cannot be removed without the consent/no objection of the Customs Authorities.

(iii) The Port does not own a Customs Bonded Warehouse hence any storage charges which may be incurred on the goods being removed to the Customs Bonded Warehouse must be paid by the applicant/Owner. Since the plaintiffs are the Owners only of some of the goods in the containers, all the containers cannot be de-stuffed without notice to the other Owners of the goods.

(iv) De-stuffing of containers from the Port premises to the Customs Bonded Warehouse can only be done after protecting the possessory lien of the Port.

(v) The defendant vessel Owner is a foreigner. Hence