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2013 Supreme(Mad) 3308
High Court of Judicature at Madras
R. SUDHAKAR, J.
Demyanenko, Volodymy & Others
Versus
R1, K. Shajahan Proprietor M/s. Sabah Ship Suppliers, Chennai & Another
Application No.3541, 2999, 2436, 1874, 2438 & 2201 to 2204 of 2013 in C.S.No.222 of 2013
Decided On: 18-09-2013
Headnote:
The Court considered the issue of payment of wages to the crew of a vessel that had been arrested and sold. The Court held that the crew's claim for wages was a maritime lien and had priority over other claims, including the claim of a ship repair company that had provided services to the vessel. The Court also held that the crew was entitled to payment of their wages in full, including compensation and repatriation expenses.
Fact of the Case:
The crew of a vessel that had been arrested and sold filed a petition with the Court seeking payment of their wages. The crew claimed that their wages were a maritime lien and had priority over other claims against the vessel. A ship repair company that had provided services to the vessel also filed a claim, arguing that its claim was a maritime lien and had priority over the crew's claim.
Finding of the Court:
The Court held that the crew's claim for wages was a maritime lien and had priority over other claims, including the claim of the ship repair company. The Court also held that the crew was entitled to payment of their wages in full, including compensation and repatriation expenses.
Issues: 1. Whether the crew's claim for wages was a maritime lien. 2. Whether the crew's claim for wages had priority over other claims against the vessel. 3. Whether the crew was entitled to payment of their wages in full, including compensation and repatriation expenses.
Ratio Decidendi: 1. The Court held that the crew's claim for wages was a maritime lien based on the following: * Article 4(1)(a) of the International Convention of Maritime Liens and Mortgages, 1993, which provides that claims for wages and other sums due to the master, officers, and other members of the vessel's complement in respect of their employment on the vessel are secured by a maritime lien on the vessel. * The general maritime law, which recognizes that seamen have a maritime lien for wages. 2. The Court held that the crew's claim for wages had priority over other claims against the vessel based on the following: * Article 5 of the International Convention of Maritime Liens and Mortgages, 1993, which provides that maritime liens set out in Article 4 shall take priority over registered mortgages, "hypothèques", and charges, and no other claim shall take priority over such maritime liens. * The general maritime law, which recognizes that seamen's wages have a high priority. 3. The Court held that the crew was entitled to payment of their wages in full, including compensation and repatriation expenses, based on the following: * The crew's claim for wages was a maritime lien and had priority over other claims against the vessel. * The crew had suffered a lot of mental and physical agony due to the delay in payment of their wages. * The State should always be fair and reasonable in settling the lawful claims of its citizens.
Final Decision: The Court ordered the Advocate Commissioner to disburse the wages of the Master and crew, including compensation, to the tune of Rs.2,25,54,057/- (Two Crores Twenty Five Lakhs Fifty Four Thousand and Fifty Seven only). The Court also ordered the Advocate Commissioner to pay the repatriation charges/expenses for the crew and the boarding and lodging charges for the crew till departure on settlement of their wages. The Court further ordered the Advocate Commissioner to issue a cheque in favour of M/s.Sembmarine Kakinada Limited for a sum of Rs.1,99,932.75 (Rupees One Lakh Ninety Nine Thousand Nine Hundred and Thirty Two and Paise Seventy Five only) towards difference in cost payable for electricity charges incurred by the Vessel post arrest. The Court dismissed A.No.2203 of 2013 as infructuous and directed that all other applications be posted on 25.9.2013 for passing further orders.
R. Sudhakar, J.
1. The crew, 27 in all, filed A.No.3541 of 2013 under Order XIV Rule 8 and Order XLII Rule 38 of the Original Side Rules to direct the Advocate Commissioner to pay the wages of the crew as per Annexure 'A' and Annexure 'B' aggregating to USD 4,79,346.48 equivalent to INR 2,87,60,788.80 (excluding compensation) out of the sale proceeds on obtaining suitable permission from the Reserve Bank of India for payment in Foreign Exchange and also for obtaining Air Tickets for the repatriation of the crew.
CLAIM OF PLAINTIFF – K.SHAJAHAN FOR SHIP CHANDLER SERVICES
REP. BY MR.T.S.BASKAR, LEARNED COUNSEL
2. The plaintiff in this case is a Ship Chandler and it has filed the suit for recovery of money amounting to Rs.54,65,190.50, towards the cost of the goods supplied to the Vessel – M.T.Chemical Arrow (for brevity, "the Vessel"). The Vessel was carrying cargo of Caustic Soda Lye and was stranded in the Port of Kakinada. One of the main reasons for the Vessel being stranded in the Kakinada Port was that the engine of the Vessel developed serious problems. The plaintiff moved A.No.1597 of 2013 for arrest of the Vessel and this Court, by order dated 4.4.2013, ordered arrest of the Vessel.
CLAIM OF CREW (27 IN ALL) FOR WAGES
REP. BY MR.S.VASUDEVAN, LEARNED COUNSEL
(Applicant in A.Nos.1874, 2436 and 3541 of 2013)
3.1. On 15.4.2013, the present applicants, namely Demyanenko Volodymyr, who is the Captain of the Vessel, and 20 others, filed A.Nos.1812 and 1813 of 2013 seeking intervention and arrest of the Vessel respectively. By order dated 15.4.2013, A.No.1812 of 2013 seeking intervention was allowed and the order of arrest was extended to A.No.1813 of 2013. In the meantime, since the Vessel had developed serious snag and its power generating capacity was affected, the crew filed A.No.1814 of 2013 seeking a direction not to disconnect the power supply to the Vessel. By order dated 16.4.2013, the Court ordered that the power supply to the Vessel should not be disconnected.
3.2. The crew also filed A.No.1874 of 2013 to declare and determine the amount due and payable to them at USD 435643.64 (US Dollar Four Hundred and Thirty Five Thousand Six Hundred and Forty Three and Cents Sixty Four only) calculated up to 10.4.2013 and to direct the owners of the Vessel to pay the future wages till the date of their actual signing off from the defendant Vessel as per their respective contracts of employment together with their repatriation costs to their respective home towns. The said application is pending consideration.
3.3. The crew of the Vessel filed A.No.2170 of 2013 for sale of the Vessel and since the defendant/Owners of the Vessel did not object to the same, the Court, on 9.5.2013, invited sealed tenders for the sale of the Vessel.
3.4. In the meanwhile, some of the crew left the Vessel and A.No.2434 of 2013 was moved by the replaced crew, six in all, to intervene and that was ordered on 18.6.2013 and the order of arrest was extended to these applicants by order dated 18.6.2013 in A.No.2435 of 2013. These six crew filed A.No.2436 of 2013 to declare and determine the amount due and payable to them at USD 90976.65 (US Dollars Ninety Thousand Nine Hundred and Seventy Six and Cents Sixty Five only) calculated up to 31.5.2013 and to direct the owners of the Vessel to pay the future wages till the date of their actual signing off together with their repatriation costs to their respective home towns.
CLAIM OF DCW LIMITED FOR BREACH OF CONTRACT BY OWNERS OF THE VESSEL
REP. BY MR.S.VASUDEVAN, LEARNED COUNSEL
(Applicant in A.No.2438 of 2013)
4.1. The Vessel was carrying cargo, which is perishable in nature, and at the behest of M/s.Dharangadhara Chemical Works Limited (DCW Limited), the owner of the goods, discharge of the cargo was ordered on 22.4.2013 in Application No.1873 of 2013, after their application in A.No.1872 of 2013 for intervention was allowed on 17.4.2013. The said DCW Limited have made a plea for arrest of
