Bombay High Court
The Director General Of Shipping vs Sale Proceeds Of The Vessel And Anr on 24 August, 2016
Bench: S.J. Kathawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY & VICE ADMIRALTY JURISDICTION
ADMIRALTY SUIT NO. 43 OF 2014.
The Director General of Shipping having its address )
at 9th Floor Beta Building,.i-Think Techno Campus, )
Kanjurmarg (East), Mumbai - 400 042 )... Plaintiff
VERSUS
1. SALE PROCEEDS OF THE VESSEL m.v.Kamal
XXIX lying deposited with the Admiralty Registrar,
)
)
High Court Bombay owned by Jaisu Shipping )
Company Pvt. Ltd., India
2. JAISU SHIPPING COMPANY PVT LTD. having )
their H.O. at Kewalramani House, Dinshaw Building )
Road, Kandla Port, Gujarat, 370 210AND B- 1, )
Common Wealth 181, Madame Cama Road, )
Opposite Air India Building, Mumbai 400 020 )...Defendants
Mr. Amitava Majumdar a/w. Arjun Mital i/b. Bose & Mitra & Co. for the
Plaintiff
None for the Defendant.
CORAM: S.J. KATHAWALLA, J.
DATE: 24TH AUGUST 2016.
ORAL JUDGMENT:
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1. The present suit has been filed by the Plaintiff for the recovery of the
outstanding Seamen's Welfare Fees payable for the Seamen engaged on the
vessel to the Plaintiff along with the payment of the detention fees for the Port
State Control inspection carried out by the Plaintiff and a decree for the
payment of the sum of Rs. 36,250/- and 8,35,000/- as Welfare fees and
detention fees respectively, to the Plaintiff against the vessel m.v. Kamal
XXIX.
2. The said Vessel came to be sold as per the order passed by this Court in
Admiralty Suit No. 22 of 2014 dated 27th August 2013 as the owners of the
said vessel, Jaisu Shipping Company Pvt. Ltd (Defendant No. 2) were unable
to pay the wages of the crew members because of its financially unstable state.
The sale proceeds representing the said vessel are lying deposited with
3.
the Admiralty Registrar of this Hon'ble Court.
4. The Plaintiff is a statutory authority constituted under the Merchant
Shipping Act, 1958 dealing with all aspects of merchant shipping in India. The
Defendant No. 1 represents sale proceeds of the vessel m.v. Kamal XXXIII, a
registered Indian Flagged Vessel under the Merchant Shipping Act, 1958 and
was owned by Jaisu Shipping Company Pvt. Ltd., i.e. Defendant No. 2.
5. The Defendant No.2 has never entered appearance or taken any steps
for the release of the Defendant No.1 Vessel. There are no other Defendants to
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the present suit and no Written Statement has been filed against the Plaintiff's
claim. Accordingly the matter is to proceed ex parte.
6. The Plaintiff claims that the Plaintiff as a statutory authority levies
annual fees on all owners of Indian vessels under the Merchant Shipping
(Levy of Seamen's Welfare Fee) Rules, 1974 amended from time to time for the
seamen engaged by the respective Owner for the purpose of providing
amenities to seamen and for the welfare of said seamen.
7.
It is further stated that the Defendant no. 2 has failed to pay the
requisite annual fees under the said Rules for the period from the year 2006
till the date the said Vessel was sold by this Hon'ble Court on 27th August
2013. The Plaintiff has a claim for the outstanding annual fees under the said
Rules for each of the seamen engaged by the Owner on the said Vessel at the
rate of Rupees 250 /- per year until 29th August 2011 and thereafter at the
revised fee of Rupees 500/- from 30th August 2011 till the date of sale of the
Vessel.
8. It is further stated that save for the period of 2012-13, the Defendant
No.2 failed to file the Articles of Agreement giving any information about the
actual number of seamen employed on the Vessel for the relevant period has
had to base the calculations for the fees for the years 2006-2012 on the basis
of the number of seaman to be carried on board as per the Minimum Safe
Manning Document issued by the Mercantile Marine Department on 28th
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July 2006 for the said Vessel which specifies the minimum crew required for
the safe manning of that ship.
9. It is further stated that the under its obligations under Section 334 and
336 of the Merchant Shipping Act,1958, to ensure that no unseaworthy Indian
ship is send to sea, the Plaintiff carried out a flag state inspection on 9th
August 2012, pursuant to which the Vessel was detained by a detention order
issued by the Plaintiff on 14th August 2012 for various deficiencies as set out
in that Detention Order. Accordingly it is stated that the owners, Defendant
No.2 were to pay Detention Fees as per the Annexure to the DG Shipping
Circular No. 13 of 2010, which amounts to a fee of Rs. 8,35,000/- and the
Defendant No.2 has not paid the same till date in spite of reminder notices
sent by the Plaintiff. The Plaintiff has setoff the said detention fees against a
sum of Rs. 2,46,711/- which was lying to the credit of the Plaintiff so that the
balance outstanding is Rs. 5,88,298/-
10. The outstanding Seaman Welfare fees and the Detention Fees for flag
state inspection due from the Defendant No. 2 forming the Plaintiff's claim in
the present suit amounts to a total of Rs. 6,24,548/- along with interest @ 18%
per annum.
11. The Plaintiff has led the evidence of two witnesses, Mr. Ajay Kumar
Singh, the Shipping Master of the Marine Mercantile Department to establish
its claim in respect of the outstanding Seaman's welfare fees and Capt. Abdul
Azad, Nautical Surveyor at the Marine Mercantile Department in respect of
the claim for detention fees. The Plaintiff filed Affidavits of Examination-in-
Chief of Mr. Ajay Kumar Singh dated 28th July 2015 and Capt Abdul Azad
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dated 28th July 2015. The following documents were marked as Exhibits by
this Court:
i. Exhibit P1: Copy of the Merchant Shipping (Levy of Seamen's Welfare Fee)
Rules, 1974
ii. Exhibit P2: Copy of revised rules of the Merchant Shipping (Levy of
Seamen's Welfare Fee) of the year 2004
iii. Exhibit P3: Copy of revised rules of the Merchant Shipping ( Levy of
Seamen's Welfare Fee) of the year 2011
iv. Exhibit P4: Copy of the Minimum Safe Manning Document issued on 28
July 2006
v. Exhibit P5: Detention Order dated 14th August, 2012
vi. Exhibit P6: Copy of the DG Shipping Circular No.13 of 2010
vii. Exhibit P7: Notice issued for the Detention Fees dated 17th September, 2012
viii. Exhibit P8: Reminder letter dated 29th October, 2012
ix. Exhibit P9: Reminder Letter dated 2nd November 2012
x. Exhibit P10: Particulars of Claim
12. The witnesses in the Affidavits of Examination-in-Chief of the Plaintiff
has affirmed the truth and correctness of the documents filed in the Affidavit
of Documents which have been taken on record and marked.
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13. I have perused the affidavit in evidence in lieu of Examination in Chief
of the Plaintiff and the documents marked as Exhibits P1 to P9. These
documents prove the Plaintiff's claim.
14. The Plaintiff is entitled to maintain an action in rem for the recovery of
the unpaid annual Seaman's welfare fees and Detention Fees. I find that the
Plaintiff' has a claim for recovery of the unpaid annual Seaman's welfare fees
is payable from the sale proceeds of the said Vessel and it entitled to claim of
Rs. 6,24,548/- along with interest @ 18% per annum.
15. On the basis of the pleadings, the following issues came to be framed by
the Court and are answered as follows:
Sr.No. ISSUES ANSWERS
1. Whether the Plaintiff proves that the Plaintiff is entitled to Affirmative
maintain this action against the Defendants and this Court has
jurisdiction to decide the same in the admiralty jurisdiction?
2. Whether the Plaintiff proves that the dues as claimed by the Affirmative
Plaintiff are statutory dues?
3. Whether the Plaintiff proves that the Plaintiff is entitled to a Affirmative.
decree in the sum of Rs.6,24,548/- together with interest @
18% p.a. from the date of the suit until payment/realisation?
4. What decree? What order? As above
16. The Prothonotary & Senior Master of this Court is directed to make
over of the sum held by the Prothonotary & Senior Master to the credit of the
suit to the Advocate for the Plaintiff in satisfaction of the decretal amount.
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17. The suit is accordingly disposed of.
(S.J. KATHAWALLA, J.)
