Case: Epoch Enterrepots Vs. M.V. WON FU

3. The plaintiff being the appellant herein instituted a suit for recovery of damages of 11 lakhs for breach of contract with interest at the rate of24% per annum by reason of loss and damages suffered and caused by breach of contract by the defendant vessel. The factual element we will refer shortly here after but presently be it noted that against the refusal to entertain the suit and the consequent dismissal of the same before the learned trial judge, the plaintiff moved the appellate forum in the High Court but having failed to obtain the relief the petition for special leave under Article 136 has been moved before this Court and this Court at the admission stage itself upon issuance of notice and upon the grant of leave as appears herein before proceeded to deal with the issue without much of procedural formalities.4. Turning attention to a brief reference on to the factual score it appears that the plaintiff being a sole proprietor concern stands involved in the business of export of mines and minerals especially in Feldspar. In the usual course of events plaintiff entered into an agreement with M/s. SAN I. Mining Company at Taiwan to export Feldspar and to complete the agreement between the parties the plaintiff entered into an agreement with said to be defendants ship disponent owner, to export the cargo of Feldspar from Tuticorin harbour to Taiwan. The agreement is stated to be evidenced in a fixture note date 20.10.1995.

Reasoning: 36. Even, however, assuming the agreement has in fact been entered into by the disponent owner, unless sufficient evidence is laid that the charter was by demise, whereby the possession and control of the vessel was given to the disponent owner, question of pursuing the cause of action against the vessel would not arise. Needless to add that charter parties are of three kinds; (a) Demise Charter; (b) Voyage Charter; and (c) Time Charter. Whereas in demise charter, the vessel is given to the charter who thereafter takes complete control of the vessel including manning the same, in both voyage charter and time charter, master and crew are engaged by the owner who act under owners instructions but under the charterers directions. Simply put, voyage charter is making available the vessel for use of carriage for a particular voyage and the time charter correspondingly is where the vessel is made available for carriage of cargo for a fixed period of time. In the contextual facts, apart from the fixture note, no other documentary support is available as to whether ownership arose through a charter by demise and possession and control of the vessel has already been given to the disponent owner. The facts disclose that the disponent was an intending charterer of the vessel from the owner and it is on expectancy of such a contract, the fixture note was issued. There was as a matter of fact no charter party or agreement with the charterer and some eventuality in future is stated to be the basis of the cause of action. It is on this score we think it expedient to record that even upon assumption of the appellants case at its highest, no credence can be attached thereto. The disponent owner was not a demise charter but it is on the happening of such an event in futuro that such a fixture note has been issued. In out view there is no sufficient evidence available as regards the action in rem making the vessel liable in the contract said to have been entered into, as recorded in the fixture note. It is in the nature of a breach of contract and liability of the vessel would not arise, though however, we are not expressing any opinion as regards the maintainability of an action in personam or its eventual success.37. Inasmuch as the claim in the present case arises out of contract de hors a maritime lien, no action in rem is permissible, neither a suit in the original jurisdiction of the Madras High Court can be maintained against the vessel.