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Judgment
Gauri Godse, J
Not on board. Upon mentioning taken on board.
Learned counsel for the plaintiff has tendered draft amendment and seeks leave to amend the plaint in terms of the draft amendment. Leave granted. Amendment to be carried out forthwith.
Heard learned counsel for the plaintiff.
Learned counsel for the plaintiff states that there is no active caveat against the arrest of the first defendant vessel entered in the Caveat Warrant Book. The Caveat Warrant Book was produced before me by the Court Associate and I am informed that there is no valid/active caveat entered against the arrest of the first defendant vessel.
On perusal of the plaint I find that the case of the plaintiff is based upon three bills of lading against the cargo that was shipped on board of the offending vessels i.e . defendant nos. 3 and 4. It is the case of the plaintiff that defendant no. 1 vessel is a motor vessel flying the flag of Panama and the vessel presently is at Mumbai anchorage and expected to call at Bharat Mumbai Container Terminal in the Jawaharlal Nehru Port for its loading/discharge operations within the territorial waters over which this court exercises territorial jurisdiction.
The plaintiff relies upon screen shot of the vessel tracking website of Marine Traffic and the website of defendant no. 2.
It is the case of the plaintiff that defendant no. 2 issued three bills of lading against the cargo that was shipped on the offending vessels. The plaintiff’s case is that the plaintiff is named as a shipper on the bills of lading and the original bills of lading are with the plaintiff. It is contended by the plaintiff that in breach of the settlement agreement the buyer failed to pay the settlement amount to the plaintiff and on the contrary defendant no. 3, Chief Financial Officer for Ivory coast intimated the plaintiff that it had received Euro 134,000 from the buyer. The plaintiff had objected to the same by responding by email. The plaintiff further learnt that the cargo was misdelivered by defendant no. 2 in breach of the terms of bills of lading and settlement agreement dated 3rd February 2023.
The plaintiff’s claim is for the value of the cargo loaded and shipped on board of Defendant No. 3 and Defendant No. 4 Vessels from China to Ivory Coast. The Plaintiff claims that the Defendant no. 2 issued the Bills of Lading for the cargo loaded on Defendant No. 3 and Defendant No. 4 Vessels and the delivery of the cargo was to be made by the Defendant No. 2 against the surrender of the Original Bills of Lading. The Defendant No. 2 has however, mis-delivered the cargo without the receipt of the Original Bills of Lading and caused the Plaintiffs a loss of EUR 783,944 i.e., the value of the cargo shipped on board of the Defendant Nos. 3 and 4 Vessels. The plaintiff claims that even today the original bills of lading are in possession of the plaintiff.
The case of the plaintiff is that the defendant being a carrier of the cargo under the bill of lading was under unconditional obligation to deliver the goods only to the holder of the original bills of lading. However, the defendant no. 2 has mis-delivered the cargo to an entity unknown to the plaintiff.
On the basis of the aforesaid the plaintiff seeks a decree in a sum of EUR 783,944 together with interest on its principal claim @ 18% from the date of filing of the suit as stated in the particulars of claim.
After hearing the submissions made on behalf of the plaintiff and after perusing the pleadings and supporting documents I find that prima facie case for arrest of defendant no. 1 vessel is made out. In the present case the claim of the plaintiff is a Maritime claim arising on account of breach of contract of carriage of cargo and mis-delivery of the cargo by the defendant no. 2. The plaintiff claim is thus a maritime claim as contemplated by Section 4(1)(f), 4(1)(g) and 4(1)(h) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017. The plaintiff thus claims the right to arrest the defendant no. 1 vessel for the aforesaid maritime claim by relying upon Section 5(2) read with Section 5(1) of the Act.
The plaintiff’s case is that the beneficial ownership and control of defendant no. 1 vessel and the offending vessel i.e defendant nos. 3 and 4 are with defendant no. 2 and thus the three vessels are sister vessels.
Thus the plaintiff has a claim against the 1st Defendant Vessel as the 1st Defendant Vessel is the sister Vessel of the offending Vessels (3rd and 4th Defendant Vessels) and is liable for arrest in rem under Section 5(2), Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017.
In view of the evidence placed on record by the plaintiff from the Marine Traffic Website as well as the website of defendant no. 2, I am satisfied that the defendant no. 1 vessel is within the jurisdiction of this court. Thus, in such circumstances I find that there is cause of action in favour of the plaintiff. As stated above the plaintiff has made out a prima facie case. I am also satisfied that the balance of convenience lies in favour of the plaintiff to whom, irreversible prejudice would be caused if the relief sought in the Judges Order is denied.
I have seen the Judges Order and it appears to be in the proper form and with appropriate contents. The undertaking contained in the Judges Order are accepted as an undertaking to this Court. The undertaking shall not stand discharged or released notwithstanding any order permitting the suit to be withdrawn. I therefore make an order in terms of the Judges order in view of the aforesaid facts and circumstances.
The Plaintiff’s Advocate shall serve Warrant of Arrest on the 1st Defendant Vessel and other concerned Authorities within a period of one week from today, failing which the vessel shall stand released from arrest.
All concerned, to act on authenticated copy of this Order.