Case: Shipping Corporation Of India Ltd Vs. Mare Shipping Inc

made on behalf of the Charterers to convince us that it was really the duty and responsibility of the Owner of the vessel to check whether the vessel could be safely moored at the SBM in Vadinar, we are unable to convince ourselves that such a duty was that of the Owners of the vessel and not the Charterers which had a choice of all the ports in India for discharge of the cargo, as was subsequently done in Mumbai port. As has been held by the Arbitral Tribunal and subsequently affirmed both by the learned Single Judge and the Division Bench of the Bombay High Court, the responsibility for the failure of the ship to moor at the SBM in Vadinar must lie squarely with the Charterers and the receiver as it was they who had nominated the SBM for the safe mooring of the vessel. The lay time must, therefore, be held to have recommenced after the expiry of six hours from the tendering of the Notice of Readiness upon the vessels arrival at the customary anchorage at Vadinar on 15.12.1999 in keeping with the provisions of Clause 6 of the Charter Party. It was not the case of the Charterers that the failure of the vessel to discharge its cargo at the SBM at Vadinar was for reasons beyond their control. It cannot also be said that the owners of the vessel contributed in any way to such failure since the equipment on board the vessel had been made known to the Charterers when the Charter Party was signed. 46. In the face of the specific conditions indicated in Clause 6 of the Charter Party, the theoretical and/or academic exercise of what constitutes an “arrived ship” loses much of its relevance. The terms of the Charter Party were agreed upon by the parties with their eyes wide open. What is also significant and cuts at the root of the submissions advanced on behalf of the Charterers is that even after the vessel was denied mooring at the SBM for safety reasons on 21.12.1999, no steps were taken on behalf of the Petitioners to either arrange for an alternate safe berthing in Vadinar or to give instructions as to where the cargo was to be discharged. In fact, on behalf of the Respondents/Owners a legal notice was addressed to the Petitioners on 24.12.1999 pointing out that the vessel continued to await discharge incurring demurrage. It is only thereafter that Addendum No.I to the Charter Party was drawn up and signed on 28.12.1999 by the Owners and the Charterers, whereby m.t. Prestige was diverted by the Charterers from Vadinar to a Lighterage point at Mumbai port for discharge and it was specifically agreed that the Charterers would bear all the costs of discharge, including freight charges and the expenses of the daughter vessel, m.t. Maharaja Agrasen. It was also agreed that demurrage would be settled as per the terms of the Charter Party. In our view, the various decisions cited on behalf of the Petitioners/Charterers do not help them in the facts of this case. We do not, therefore, think it necessary to consider all the decisions cited on behalf of the respective parties and those referred to hereinbefore are sufficient for our purpose. The decisions relied upon by the parties lay down certain propositions of law which are well-established and with which there cannot be any disagreement, but for the purposes of this case they are basically academic. 47. Once we have affirmed the finding that m.t. Prestige was an arrived ship on reaching the customary anchorage at Vadinar port and once we have also held that it was the Charterers who having the choice of a safe port, had selected the SBM at Vadinar as the discharge point, the suggestion made on behalf of the Charterers that it was the responsibility of the Owners of the vessel to check whether the ship could be safely moored at the SBM, is untenable. The responsibility of the Owners of the vessel ended with the declaration of the equipment available on board for mooring and berthing for the purpose of discharge of its cargo. Consequently, all the other ancillary issues which arise have to be answered in favour of the Respondents herein. As indicated hereinbefore, the fiasco at Vadinar was occasioned by the fact that no prior checking had been done by the Charterers to ascertain as to whether with the mooring equipment on board the vessel she would be able to moor safely at the SBM for discharge of her cargo. Even the subsequent deviation of the vessel from Vadinar to Mumbai was not on account of any laches on the part of the Owners of the vessel who were awaiting instructions once the vessel had been asked to move away from the SBM. In fact, it took a notice from the Owners of the vessel and a week for the Charterers to galvanize themselves into action, which ultimately resulted in the Addendum No.1 dated 28.12.1999. 48. Read with Clause 6 of the Charter Party, the Addendum dated 28.12.1999 makes it abundantly clear that the Charterers had accepted the responsibility for the failure of the vessel to discharge her cargo at Vadinar and had agreed to bear all the expenses for the delay in diversion of the vessel from Vadinar to Mumbai, including the time spent at Vadinar port and the expenses incurred towards pilotage, tugs and other port expenses. 49. Apart from the above, Clause 4(1) of Part II of the Charter Party specifically provides that extra expenses incurred on account of any change in loading or discharging ports, has to be paid by the Charterers, and any time thereby lost to the vessel shall count as used lay time. We are not inclined to accept Mr. Guptas submission that the aforesaid clause has to be read in the context of Clauses 4(a) and 4(b) which refer to ports other than Indian Ports in a different context. 50.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The concept of an arrived ship in shipping terminology requires that a vessel should reach a destination in a port where she could be safely berthed and thereupon be ready to either discharge or load cargo from and on to the vessel. That is a general concept, but the Charterers and the Owners of the vessel could in the Charter Party agree to a specific destination point within the port area for discharging or loading of cargo. Once the vessel arrived at the said spot and was ready to discharge its cargo, it could be described as anth the authority to issue and tender Notice of Readiness. In the instant case, the nominated port for the arrival of the vessel was Vadinar Port, but the destination point was the SBM where the vessel was to be moored and was to discharge its cargo of crude oil. In fact, in the Charter Party dated 9.11.1999, Clause 6 specifically provided for arrival of the vessel at the port of loading or discharge and cast an obligation upon the Master or his Agent to give the Charterer or his Agent Notice of Readiness in relation to discharge of theMaster of the vessel was under an obligation to give Notice of Readiness on arrival at the customary anchorage at the port of discharge. It is a possibility that since no specific port in the Indian coastline had been mentioned in the Charter Party, the Master of the vessel or his Agent was required to give Notice of Readiness upon the vessel arriving at customary anchorage. It is only after the vessel sailed from Ras Sukheir that the receiver, IOC, nominated Vadinar to be the port of discharge with the specific destination point being the SBM within the port. In giving such Notice of Readiness upon arrival at the customary anchorage at Vadinar, the Master of the Vessel duly complied with the conditions of Clause 6 of the Charter Party and in terms of the aforesaid clause irrespective of whether a berth was available or not, lay time commenced upon the expiry of six hours after receipt of such notice. That the vessel could not be moored at the SBM is a different facet of the story. The Charterers had full knowledge of the equipment on board m.t. Prestige through the questionnaire provided by the Respondents/Owners to the Petitioners/Charterers. It could not be denied that despite having such knowledge the IOC nominated the SBM as the destination point for discharge of the cargo. Obviously, the parties to the Charter Party had not made any attempt to verify as to whether the equipment on board the vessel was sufficient for her to be safely moored at the SBM and to discharge her cargo safely. As it turned out later on, the vessel was not so equipped and could not, therefore, be moored at the SBM and had to be requested to move away therefrom. Although, an attempt has been made on behalf of the Charterers to convince us that it was really the duty and responsibility of the Owner of the vessel to check whether the vessel could be safely moored at the SBM in Vadinar, we are unable to convince ourselves that such a duty was that of the Owners of the vessel and not the Charterers which had a choice of all the ports in India for discharge of the cargo, as was subsequently done in Mumbai port. As has been held by the Arbitral Tribunal and subsequently affirmed both by the learned Single Judge and the Division Bench of the Bombay High Court, the responsibility for the failure of the ship to moor at the SBM in Vadinar must lie squarely with the Charterers and the receiver as it was they who had nominated the SBM for the safe mooring of the vessel. The lay time must, therefore, be held to have recommenced after the expiry of six hours from the tendering of the Notice of Readiness upon the vessels arrival at the customary anchorage at Vadinar on 15.12.1999 in keeping with the provisions of Clause 6 of the Charter Party. It was not the case of the Charterers that the failure of the vessel to discharge its cargo at the SBM at Vadinar was for reasons beyond their control. It cannot also be said that the owners of the vessel contributed in any way to such failure since the equipment on board the vessel had been made known to the Charterers when the Charter Party wasthe face of the specific conditions indicated in Clause 6 of the Charter Party, the theoretical and/or academic exercise of what constitutes anes much of its relevance. The terms of the Charter Party were agreed upon by the parties with their eyes wide open. What is also significant and cuts at the root of the submissions advanced on behalf of the Charterers is that even after the vessel was denied mooring at the SBM for safety reasons on 21.12.1999, no steps were taken on behalf of the Petitioners to either arrange for an alternate safe berthing in Vadinar or to give instructions as to where the cargo was to be discharged. In fact, on behalf of the Respondents/Owners a legal notice was addressed to the Petitioners on 24.12.1999 pointing out that the vessel continued to await discharge incurring demurrage. It is only thereafter that Addendum No.I to the Charter Party was drawn up and signed on 28.12.1999 by the Owners and the Charterers, whereby m.t. Prestige was diverted by the Charterers from Vadinar to a Lighterage point at Mumbai port for discharge and it was specifically agreed that the Charterers would bear all the costs of discharge, including freight charges and the expenses of the daughter vessel, m.t. Maharaja Agrasen. It was also agreed that demurrage would be settled as per the terms of the Charter Party. In our view, the various decisions cited on behalf of the Petitioners/Charterers do not help them in the facts of this case. We do not, therefore, think it necessary to consider all the decisions cited on behalf of the respective parties and those referred to hereinbefore are sufficient for our purpose. The decisions relied upon by the parties lay down certain propositions of law which are well-established and with which there cannot be any disagreement, but for the purposes of this case they are basicallywe have affirmed the finding that m.t. Prestige was an arrived ship on reaching the customary anchorage at Vadinar port and once we have also held that it was the Charterers who having the choice of a safe port, had selected the SBM at Vadinar as the discharge point, the suggestion made on behalf of the Charterers that it was the responsibility of the Owners of the vessel to check whether the ship could be safely moored at the SBM, is untenable. The responsibility of the Owners of the vessel ended with the declaration of the equipment available on board for mooring and berthing for the purpose of discharge of its cargo. Consequently, all the other ancillary issues which arise have to be answered in favour of the Respondents herein. As indicated hereinbefore, the fiasco at Vadinar was occasioned by the fact that no prior checking had been done by the Charterers to ascertain as to whether with the mooring equipment on board the vessel she would be able to moor safely at the SBM for discharge of her cargo. Even the subsequent deviation of the vessel from Vadinar to Mumbai was not on account of any laches on the part of the Owners of the vessel who were awaiting instructions once the vessel had been asked to move away from the SBM. In fact, it took a notice from the Owners of the vessel and a week for the Charterers to galvanize themselves into action, which ultimately resulted in the Addendum No.1 dated 28.12.1999.