IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 OP.No. 4951 of 2003(M) ------------------------------- PETITIONER(S): ------------------ 1. SEA CONSORTIUM PVT. LTD. 11, DUXTON HILL, SINGAPORE 089595, REPRESENTED BY THEIR LOCAL AGENTS FORBES GOKAK LIMITED, PATVOLK DIVISION, POST BOX NO. 556, INDIRA GANDHI ROAD, KOCHI-3 2. FORBES GOKAK LIMITED, PATVOLK DIVISION, POST BOX NO.556, INDIRA GANDHI ROAD, KOCHI-3 BY ADV. MR.K.P.VIJAYAN MS. ROSY GEORGE MS.C.B.SUMA DEVI MS.SURESH SAMUEL MS.V.M.SYAM KUMAR RESPONDENT(S): ---------------- 1. COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAM, COCHIN PORT TRUST, COCHIN-9 2. THE CHAIRMAN, COCHIN PORT TRUST, COCHIN-9 3. THE TRAFFIC MANAGER, COCHIN PORT TRUST, COCHIN-9 4. THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER, COCHIN PORT TRUST, COCHIN-9 MR. E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR MS.PRIYA MAHESH MS.PRIYA MANJOORAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 4951 of 2003 ORDER ON C.M.P.NO.8851 OF 2003 IN O.P.NO.4951OF 2003 CLOSED. 8.4.2009 SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF LETTER DTD 12.7.2000 FROM THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXT.P2: COPY OF LETTER DTD 7.11.2001 FROM THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXT.P3: COPY OF LETTER DTD 17.1.2002 FROM THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXT.P4: COPY OF LETTER DTD 26.11.2002 FROM THE 2ND PETITIONER TO TH 2ND RESPONDENT. EXT.P5: COPY OF LETTER DATED 14.1.2003 FROM THE 3RD RESPONDENT TO THE PETITIONERS. RESPONDENTS' EXHIBITS EXT.R1(a): COPY OF MINUTES OF THE PORT USERS MEETING HELD ON 31ST JANUARY, 2001 AT THE CONFERENCE HALL OF COCHIN PORT TRUST. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.4951 OF 2003 ---------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT The petitioners are the owner and agent of a foreign ship which arrived in the Port of Cochin in July 2000. It was a container vessel. It berthed in ‘Q-9 berth’ of the Cochin Port. The time required for unloading was nine shifts. While the unloading was in progress, the gantry crane of the Cochin Port Trust got damaged, as a result of which the unloading could not be continued. As a result of the time taken for repairing the crane, the ship had to remain berthed for a total of 17 shifts before the unloading could be completed. According to the petitioners, for the extra time taken for unloading on account of the damage to the gantry crane also, the respondents charged then berth charges amounting to Rs.1,24,000/-, which was deducted from the running account of the 2nd petitioner. Since the delay and consequent extra time taken for unloading was solely on account of the damage to the crane, the petitioners requested for refund of the additional berthing charges, which O.P.No.4951/03 2 was rejected by the respondents by Ext.P5 letter. Ext.P5 is under challenge before me. 2. The contention of the petitioners is that but for the damage to the crane maintained by the respondents, the ship would have completed the unloading in nine shifts and left the port and therefore the petitioners cannot be saddled with the liability to pay the berthing charges for the balance eight shifts. The petitioners, therefore, seek the following reliefs: “(a) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P5; (b) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to refund the berth hire charges for the 8 shifts, amounting to Rs.1,24,091-52 wrongly debited to the account of the 2nd petitioner for the period when M.V. “X-PRESS JAYA” on its voyage 604 in July 2000 remained idle for non-allocation of gantry crane for the vessel by the 1st respondent and its officers, along with interest thereon @ 12% p.a. w.e.f. 1st August 2000 till payment”. 3. A counter affidavit has been filed, in which the contention taken by the respondents is that since berthing charges are statutory, the same have to be paid to the statutory authority, who has statutorily fixed berthing charges and the Cochin Port Trust is a collecting agent. A further contention is that berthing charges cannot be mixed O.P.No.4951/03 3 with crane charges. Berthing charges are payable as long as the ship uses the berth and crane charges are payable for the period during which the crane is used by the ship. No crane charges have been recovered from the petitioners when the crane was not used. According to the respondents, for the period during which admittedly the ship was berthed in the Port, berthing charges are statutorily payable regardless of whether the continued berthing was on account of reasons not attributable to them. The respondents would therefore contend that the petitioners are not entitled to refund of the berthing charges as claimed by them. 4. I have considered the rival contentions in detail. 5. In the counter affidavit filed by the respondents in paragraph 6 it is specifically stated thus: “In so far as the instant case is concerned, it is submitted that the vessel X-Press Jaya (hereinafter referred to as the Vessel), berthed in Cochin Port Trust on 05-07-2000, and sailed away on 11-07-2000. The Vessel berthed at Berth Q9. At the time of berthing, the crane was available for use and unloading of the containers on the Vessel commenced. However, after 8 containers were unloaded, the crane developed some problems and could not longer be operated. Thus, it was that on account of the breakdown of the crane there was delay in unloading the Vessel. Thus, it is submitted that the crane allotted to the Vessel unfortunately broke down while in use, and thus the Vessel had to idle in O.P.No.4951/03 4 Cochin Port Trust for an additional 8 shifts”. In paragraph 10 it is stated thus: “10. ………………… It is submitted that the cranes and the other machinery which are in constant use, occasionally breakdown. Immediate steps are thereafter taken by these respondents to rectify the defects so as to ensure that there is minimum wastage of time and money both by the petitioners and others similarly situated as well as the Cochin Port Trust. It is further submitted that these respondents charge all amounts strictly as per the Scale of Rates and the petitioners and others similarly situated cannot have any grievance in respect thereof. It is submitted by these respondents that in so far as the Vessel is concerned, the unloading of its containers commenced soon after berthing. However, unfortunately, the crane in use for the unloading of the containers broke down after 8 containers were unloaded. In as much as there is no practice of withdrawing a crane in use on one vessel for use on another vessel, the unloading of the containers from the Vessel was stalled for 8 shifts. It merits reiteration that the idling of the vessel for 8 shifts was solely on account of the unfortunate breakdown of the crane in use and not on account of any negligence or delays on the part of these respondents” That being so, it is categorically admitted that the delay of 8 shifts in the matter of unloading containers from the petitioners’ ship was wholely on account of damage to the crane. In such circumstances, I am unable to countenance the contentions of the respondents that since the berthing and crane charges are separate, simply because the crane was O.P.No.4951/03 5 non-functional berthing charges cannot be reduced. It is the duty of the Cochin Port Trust to keep the cranes in a good working condition. When the additional shifts necessary for unloading was solely on account of damage to the crane, naturally the continued berthing should also be attributed to the breakdown of the crane. When the breakdown of the crane is clearly admitted as also the additional shifts used up for completing the unloading, I do not think that the respondents can escape from the liability to give proportionate reduction of berthing charges. Therefore, I am satisfied that the petitioners are entitled to refund of the berthing charges collected from them for the additional eight shifts as admitted in the counter affidavit. Accordingly, the original petition is allowed directing the respondents to refund to the petitioner the additional berthing charges at the rates applicable in July 2000 for the additional eight shifts used by the petitioners for unloading cargo. S. SIRI JAGAN, JUDGE Acd O.P.No.4951/03 6