OJA/115/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL No. 115 of 2008 In ADMIRALTY SUIT No. 4 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= J.S. OCEAN LINES PVT. LTD. - Appellant(s) Versus M.V. A.L. MANSOOR - Opponent(s) ========================================================= Appearance : MR SAURABH SOPARKAR SENIOR ADVOCATE WITH MR ASHWIN SHANKER WITH MS PAURAMI B SHETH for Appellant(s) : 1, MR AMITAVA MAJUMDAR WITH MR RJ OZA for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 30/04/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal arises from the order dated 10th OJA/115/2008 2/7 JUDGMENT April, 2008 made by the learned Single Judge in Admiralty Suit No.4 of 2008 in so far as the interim relief pending the suit has been refused. The appellant - plaintiff claims to be the charterer of the respondent vessel - MV A1 Mansoor-I from one Ashapura Shipping. It is alleged by the plaintiff that contrary to the charter party agreement, the respondent vessel was not allowed to dock at the ports in Iran as the vessel was blacklisted by Iran. In the process, the plaintiff lost its contract for transport of wheat at port in Iran. The plaintiff suffered damage in the sum of US $ 1,30,441.89. The plaintiff has also lodged the claim for damages worth US $ 185000. According to the plaintiff, the hatches were not cleaned free from loose scales / rust and ready in all respects to load cargo. Because of the said breach of contractual obligation, the vessel had been off hired for 10.0868 days. The plaintiff has claimed that on account of the aforesaid damages suffered by the plaintiff, it has a maritime claim against the respondent vessel. At the relevant time, the vessel was docked at Kandla OJA/115/2008 3/7 JUDGMENT port. The plaintiff, therefore, sought an order of arrest against the vessel. The learned Single Judge has by impugned order dated 10th April, 2008 recorded the contentions raised on behalf of the plaintiff. The learned Single Judge was of the opinion that the plaintiff neither had a maritime lien nor a maritime claim against the vessel. In view of the said finding, the learned Single Judge was pleased to refuse interim relief, however, directed that notice to issue upon the defendant. Feeling aggrieved, the plaintiff has preferred the present Appeal. Pending the Appeal, by order dated 11th April, 2008 (Coram: Mr. Y.R.Meena, C.J. and Mr. J.C.Upadhyaya, J.), the Court was pleased to issue arrest warrant against the vessel on condition that the plaintiff shall furnish security to the tune of Rs.10,00,000/-. We are informed that the said sum of Rs.10,00,000/- has been deposited by the plaintiff. OJA/115/2008 4/7 JUDGMENT On returnable date the owner of the vessel - Arab Shipping Company (LLC), Dubai [hereinafter referred to as “the Shipping Company”] has entered appearance and has contested the Appeal. Pursuant to the order dated 17th April, 2008, the Shipping Company has deposited a sum of Rs.1,23,86,000/- equivalent to US $ 309645.33 in the registry and on deposit of the said sum, arrest order issued against the vessel has been vacated. Mr. Soparkar has assailed the impugned order. He has submitted that the plaintiff has made out a right to an action in rem against the vessel. The learned Single Judge ought to have granted interim relief as prayed for. In support of his submissions, he has relied upon the judgment of the Hon'ble Supreme Court in the matter of Videsh Sanchar Nigam Ltd. V/s. M.V.Kapitan Kud & Others [(1996) 7 SCC 127]. He has also relied upon the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO THE ARREST OF SEA-GOING SHIPS, 1952. OJA/115/2008 5/7 JUDGMENT On behalf of the Shipping Company it is urged that the plaintiff has no claim against the vessel. The plaint does not make out either a maritime lien or a maritime claim against the vessel. The claim made by the plaintiff, if any, is against its charterer Ashapura Shipping. The damages suffered by the plaintiff, if any, arises from the breach of the terms of the contract with the Ashapura Shipping. The plaintiff has no claim against the vessel. The said damages cannot be recovered by invoking admiralty jurisdiction of the High Court. The vessel could not have been detained or arrested in exercise of the admiralty jurisdiction of the High Court. In support of there submissions reliance is placed on the judgments of the Hon'ble Supreme Court in the matter of M.V.Elisabeth V/s. Harwan Investment & Trading (P) Ltd. [1993 Supp. (2) SCC 433]; of Epoch Enterrepots V/s. M.V.Won Fu [(2003) 1 SCC 305] and on THE INTERNATIONAL CONVENTION ON ARREST OF SHIPS, 1999. We are of the opinion that in view of the aforesaid developments i.e. the deposit of sum OJA/115/2008 6/7 JUDGMENT equivalent to US $ 309645.33 by the owners of the vessel; the vacation of the arrest order issued against the vessel; and the fact that the notice has been issued in the suit which is pending for hearing before the learned Single Judge, cause of action in the present Appeal shall not survive. The Appeal and the Civil Application are accordingly disposed of. We do not express any opinion on the maintainability of the suit as the suit is pending hearing before the learned Single Judge. Mr. Majumdar has submitted that the shipping company has now arranged for bank guarantee in the sum of Rs.1,23,86,000/-. He requests that the said bank guarantee be accepted in security and the bank draft deposited by the shipping company be handed over to the shipping company. Ms. Sheth has no objection if the bank guarantee is accepted. Registry is directed to accept the bank guarantee offered by the shipping company and to hand over the bank draft No.221845 in the sum of Rs.1,23,86,000/- deposited on 17th April, 2008. Appeal stands disposed of in the above terms. OJA/115/2008 7/7 JUDGMENT (Ms. R.M.Doshit, J.) kdc (K.M.Thaker, J.)