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1981 Supreme(Ori) 106
High Court Of Orissa
P. K. Mohanti And B. N. Misra, JJ.
REENA PADHI - Appellant
Versus
OWNERS AND PARTIES, INTERESTED, IN THE MOTOR VESSEL - Respondent
Admiralty Suit 1 Of 1980
Decided On : 10/21/1981
GOVIND DAS, KARUNAKAR JENA, PRADYUMNA KUMAR MOHANTY, SAMARESHWAR MOHANTY
Headnote:
ADMIRALTY JURISDICTION - MAINTAINABILITY OF SUIT - ACTION IN PERSONAM - JURISDICTION OF HIGH COURT - SECTION 7 OF THE ADMIRALTY COURT ACT, 1861 - FATAL ACCIDENTS ACT, 1855 - COURT FEES - APPLICABILITY OF CALCUTTA HIGH COURT ADMIRALTY RULES, 1912.
Fact of the Case:
The suit was filed in the Admiralty jurisdiction of the Orissa High Court by the widow and minor children of a marine engineer who died due to an explosion on board a ship while it was docked at a Japanese port. The defendants were the owners and parties interested in the ship. The plaintiffs claimed damages for the loss of their husband and father, alleging that the explosion was caused by the negligence of the defendants. The defendants objected to the maintainability of the suit, contending that the High Court did not have jurisdiction to entertain the claim as the cause of action arose in foreign territorial waters and the defendants did not reside or carry on business within the jurisdiction of the Court.
Finding of the Court:
The High Court held that it did not have jurisdiction to entertain the suit. The Court noted that the Admiralty jurisdiction of the Orissa High Court was derived from the Orissa High Court Order, 1948, which did not confer concurrent jurisdiction on all High Courts in India to entertain causes of action arising in the high seas or foreign territorial waters. The Court also held that the defendants could not be proceeded against in an action in personam in the Admiralty jurisdiction of the High Court in view of the provisions contained in Clause 28 of the Charter dated 26th March, 1774, which limited the jurisdiction of the Court to certain categories of persons, which did not include the defendants. The Court further held that Section 20 of the Code of Civil Procedure barred the jurisdiction of the Court to entertain the suit as the defendants did not reside or carry on business within the local limits of the jurisdiction of the Court. The Court also held that the Calcutta High Court Admiralty Rules, 1912 were not applicable to regulate the procedure and practice in cases instituted in the Admiralty jurisdiction of the Orissa High Court.
Issues: 1. Whether the High Court had jurisdiction to entertain the suit in view of the fact that the cause of action arose in foreign territorial waters and the defendants did not reside or carry on business within the jurisdiction of the Court? 2. Whether the defendants could be proceeded against in an action in personam in the Admiralty jurisdiction of the High Court? 3. Whether Section 20 of the Code of Civil Procedure barred the jurisdiction of the Court to entertain the suit? 4. Whether the Calcutta High Court Admiralty Rules, 1912 were applicable to regulate the procedure and practice in cases instituted in the Admiralty jurisdiction of the Orissa High Court?
Ratio Decidendi: 1. The Admiralty jurisdiction of the Orissa High Court was derived from the Orissa High Court Order, 1948, which did not confer concurrent jurisdiction on all High Courts in India to entertain causes of action arising in the high seas or foreign territorial waters. 2. The defendants could not be proceeded against in an action in personam in the Admiralty jurisdiction of the High Court in view of the provisions contained in Clause 28 of the Charter dated 26th March, 1774, which limited the jurisdiction of the Court to certain categories of persons, which did not include the defendants. 3. Section 20 of the Code of Civil Procedure barred the jurisdiction of the Court to entertain the suit as the defendants did not reside or carry on business within the local limits of the jurisdiction of the Court. 4. The Calcutta High Court Admiralty Rules, 1912 were not applicable to regulate the procedure and practice in cases instituted in the Admiralty jurisdiction of the Orissa High Court.
Final Decision: The suit was dismissed for want of jurisdiction.
B. N. MISRA, J.
( 1 ) THIS is the first suit filed in the Admiralty jurisdiction of this Court. Reena Padhi, widow of the late Rabindranath Padhi, is plaintiff No. 1 Rinku plaintiff No. 2 and Rajat plaintiff No. 3 are respectively the minor daughter and son of plaintiff No. 1 and the late Rabindranath Padhi. Minor plaintiffs 2 and 3 are represented in the suit by their mother plaintiff No. 1 who has filed an affidavit that her interest is not adverse to that of her minor daughter and son. The owners and parties interested in the ship "jagdhir" are described as defendant No. 1 and Messrs Great Eastern Shipping Company, Limited having their registered office at Mercantile Bank Building, 60 Mahatma Gandhi Road, Bombay are defendant No. 2. In the plaint both 'action in rem' and 'action in personam' are combined and pleaded against the defendants. However, Mr. S. Mohanty, learned counsel for the plaintiffs, submitted to the Court that for the present he was not pressing for an action in rem. Therefore, the present claim is an action in personam. The defendants have entered ap-pearance and filed objection to the maintainability of the suit It was decided that the question of maintainability of the present suit in the Admiralty jurisdiction of this Court should be first considered as a preliminary issue. Plaintiffs and defendants have been heard on this preliminary issue and the present order is confined to the question of maintainability of the present action in personam.
( 2 ) FACTS necessary for a proper determination of the question of maintainability are noted hereunder. The late Rabindranath Padhi, husband of plaintiff No. 1 and father of plaintiffs 2 and 3, graduated as a Marine Engineer and joined service under defendant No. 2 OP the 28th October, 1967 as the Fifth Engineer. In June, 1973, Rabindranath had risen to the position of a Chief Engineer and at the time of his death his total annual emoluments from service were Rs. 78,040. 00 being his basic wages and allowances as per details given in Schedule 'a' appended to the plaint. As per the terms and conditions of his service Rabindranath would have retired from service at the age of 60 years, but there were reasonable prospects of his continuing in service even beyond that age. Out of his aforesaid earnings Rs. 3,600/-per annum was being spent by him for himself. Had he lived, Rabindranath would have spared the balance amount as assets to his family, namely, the plaintiff, Rabindranath was the sole earning member of the family. He was of good health and was expected to live UD to the age of 85 years. On 12th May, 1978. Rabindranath took over charge as the Chief Engineer of the ship 'm. V. Jagdhir' at Kandla port in the State of Guiarat, India- The ship started its voyage on or about the 2nd June, 1978 and thereafter called at Haladia and Paradip. After loading was over in these ports, the ship sailed to the Japanese port of Sakai with a halt for a few hours at Singapore. The ship was dry-docked at the port of Osaka in Japan and after some repairs on shore it moved to the port of Mizushima in Japan for loading of cargo. It is alleged that from the beginning of the voyage the ship was not seaworthy in all respects and in particular the air-conditioning equipment had serious defects exposing the engineers and engine crew to a high degree of risk to their lives. These defects were present while the ship was at Mizushima. Defendant No. 2 had failed to exercise due diligence and care to make the ship seaworthy in all respects before commencement of the voyage. Since long before the voyage the air-conditioning equipment in the vessel had been deliberately or negligently kept in a state of disrepair, thereby endangering the lives of the crew. Defendant No. 2 had taken no steps to remove the defects either before the voyage or during the voyage. On the 20th of July, 1978, while the ship was at Mizushjma port and Rabindranath was working in the room housing the air-conditioning eq
