1 arbp99-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.99 OF 2008 Rawmin Mining & Industries Pvt. Ltd. ....Petitioner V/s. Essar Shipping Ltd. ....Respondent Mr.Sunip Sen i/b M/s.Bose & Mitra & Co. for the Petitioner. Mr.Prashant Pratap i/b Manoj R. Khatri for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 7TH OCTOBER, 2010. P.C. :- 1. The petition has been filed under section 34 of the Arbitration and Conciliation Act, 1996 to set-aside the award made by the arbitral tribunal comprising of three arbitrators. 2. Admittedly, each of the arbitrators is an expert in the shipping industry. There is no dispute that they are aware of the manner in which the transactions such as those entered into between the parties are made and implemented. 3. The parties had entered into a Time Charter Party agreement. The date of the delivery of the vessel and the date of the return thereof was not in dispute. The parties made various claims against each other. The arbitral tribunal awarded a sum of Rs.92,489/- in favor of the petitioner and a sum of Rs.12,21,926/- in favour of the respondent. The net amount awarded in favour of the respondent was therefore Rs.11,29,437/- together 2 arbp99-08 with interest thereon at 10% from 8.8.2003 till payment. 4. Mr.Sen, the learned counsel appearing on behalf of the petitioner submitted that the award was contrary to the terms and conditions of the Charter Party, the relevant evidence viz. logs were not produced in evidence by the respondent and that the findings were based on no evidence. Mr.Sen submitted that the findings of the arbitral tribunal that the vessel continued to load in rough weather and rainy season was based on no evidence. He further submitted that the logs maintained by the master and the respondent were crucial evidence in this regard and the respondent had failed to produce the same despite requests. 5. The submission is not well founded. It is important to note that in the pleadings despite the respondent having raised the contentions which were upheld by the arbitral tribunal, the petitioner never raised any grievance regarding non-production of the logs. It is only after the respondent concluded its arguments, that the request was made. In these circumstances, I am unable to fault the conclusion of the arbitral tribunal that there was no substance in this contention. The arbitral tribunal noted that the petitioner had been furnished the copies of the deck and engine logs abstract as well as complete copies of the deck and engine logs. The arbitral tribunal accepted the respondent’s case that the original were not traceable. 6. Mr.Sen submitted that the log books which were furnished during the arbitration proceedings were illegible. 7. Even assuming that the log books were not legible, it would 3 arbp99-08 make no difference in the facts and circumstances of the present case. As noted by the arbitral tribunal, the petitioner had at no stage impugned the authenticity of the documents and raised this plea only after the respondent’s arguments had concluded. Prejudice on this account was also not established. Had the log books been crucial to the case or had the same been capable of establishing the petitioner’s case and destroying the respondent’s case, the petitioner would certainly have made a demand for the same earlier and contended that the extracts were not furnished to prove its case. It is difficult to interfere with the finding of the arbitral tribunal even if it did not comprise of experts in the field of shipping. 8. Mr.Sen submitted that the award is contrary to the terms of the Charter Party. The submission was based on the fact that the grabs had under performed. The Charter Party represented that the vessel was fitted with grabs of 9 CBM. The arbital tribunal observed that there was no warranty in the Charter Party that the vessel will achieve a certain minimum loading rate. Even assuming this to be an erroneous basis for excusing the under performance of the grabs, it is important to note that the arbitral tribunal also proceeded to consider the case on the basis that there was such a warranty. Even proceeding on this basis, the arbitral tribunal held in favour of the respondent in view of its finding that the weather conditions were not conducive to performing at optimum capacity. Despite the weather conditions and the rain the petitioner, obviously to minimize the Charter hire insisted on the vessel continuing to load the cargo. There were adverse consequences as a result thereof. After 4 arbp99-08 analyzing the evidence, the arbitral tribunal found that the reasons for the vessel taking longer to discharge included caked and lumpy cargo and delay in placement of hoppers and trucks. Due to the rain, the cargo came out in a caked condition which made it difficult for the grabs to function normally. 9. The above are all questions of facts which are entirely within the jurisdiction of the arbitral tribunal. There is no warrant for interference with the same. 10. Mr.Sen challenged the arbitral tribunal not having granted the petitioner credit for the entire period of the deviation of the vessel to Khor Fakkan instead of at Fujaira for bunkering. 11. The grievance in this regard could only in fact be raised by the respondent and not by the petitioner. As noted in the award, Khor Fakkan is only an adjoining port Fujaira. Under clause 56 of the Charter Party, the respondent was entitled to bunker at any ports or route at its cost. The respondent was entitled to six hours of free bunkering time at Fujaira. There is nothing to indicate that by bunkering at the adjoining port of Khor Fakkan, the petitioner suffered any loss in this regard. Despite the same, the arbitral tribunal granted the petitioner a deduction of four hours from the hire period corresponding to a credit of Rs.69,367/-. The respondent however has not challenged the award. The petitioner has suffered no loss as a result thereof. The challenge to the award in this basis is unsustainable. 12. Similarly the challenge to the award making the petitioner liable for 50% of the costs of replacing the broken mooring ropes is 5 arbp99-08 unsustainable. 13. Once the findings in the award which are dealt with earlier are upheld, it is the petitioner who would be responsible for the costs of the broken mooring ropes. This is obviously for the reason that the same was due to the petitioner insisting on the material being loaded even during bad weather. The arbitral tribunal has in fact given the petitioner credit for 50% merely on the basis of a letter addressed by the common broker to the petitioner to pay only 50% of the costs of the ropes. Thus here again, it is the respondent who can have a grievance and not the petitioner. 14. In the circumstances, the arbitration petition is dismissed. The petitioner shall pay the costs of this petition fixed at Rs.5000/- on or before 30.11.2010.