Express Global Logistics Pvt. Ltd vs Mv Wen Shan Imo 9311804
2023 Latest Caselaw 8378 Bom

                                                         501-comasl-22603-2023.doc

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION
              IN ITS ADMIRALTY AND VICE-ADMIRALTY JURISDICTION
               COMMERCIAL ADMIRALTY SUIT (L) NO.22603 OF 2023
                                           WITH
                                JUDGE'S ORDER NO.40 OF 2023
                                            AND
                      INTERIM APPLICATION (L) NO.22612 OF 2023

       Express Global Logistics Pvt. Ltd.                     ...Plaintiff

               Versus

       m.v. Wen Shah (IMO No.9311804) & Ors.                  ...Defendants
                                  ----------
       Vishal Sheth a/w Rishi Murarka and Ram Jay Narayan, Advocates for
       the Plaintiff.
       None for the Defendant.
                                          ----------

                                          CORAM : R.I. CHAGLA J.
                                          DATE  : 18 AUGUST 2023.
       ORDER :

1. The Plaintiff's Advocate has informed me that there is no

valid/ active Caveat against Arrest of the 1 st Defendant Vessel entered

in the Caveat Warrant Book.

2. The above Judge's Order is moved ex-parte after

circulation was granted to the Plaintiff.

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3. The urgent relief sought for by the Plaintiff in the suit is

arrest of the 1st Defendant Vessel. Along with the suit the Plaintiff

has filed an Interim Application seeking urgent orders for discharge

of the cargo presently on board the 1st Defendant Vessel.

4. It is the Plaintiff's contention that it incurred

disbursements for/ on behalf of the 1st Defendant Vessel/ her Owners.

It is also the Plaintiff's contention that the 1 st Defendant Vessel is

unseaworthy and is unable to undertake the voyage from Mumbai to

Constanta, Romania. On this basis the Plaintiff seeks a judgment and

decree against the Defendants jointly and/ or severally, and the

arrest, sequestration, condemnation and sale of the 1st Defendant

Vessel, for securing and/ or satisfying its claim of US$ 73,255 and

₹ 65,50,000. The Plaintiff also claims interest and costs.

5. The Plaintiff's case is that it chartered the 1 st Defendant

Vessel by way of a fixture note dated 10.07.2023 for carriage of

Transformers & Accessories ("Cargo") belonging to Siemens India

Ltd. from Mumbai, India to Constanta, Romania. The Plaintiff states

that the Cargo is valued at approximately ₹ 40 crores and is urgently

required for a power project in Romania.

501-comasl-22603-2023.doc

6. The 1st Defendant Vessel arrived at Mumbai on/ about

14.07.2023. Loading of the Cargo was completed on 27.07.2023.

However, the 1st Defendant Vessel has been unable to commence the

voyage because pursuant to an order passed on 19.07.2023, Port

State Control (PSC) found her to be unseaworthy. The Plaintiff

alleges that the order of 19.07.2023 was not disclosed to it until after

the Cargo was loaded on board the 1st Defendant Vessel.

7. The Plaintiff also alleges that whilst the Cargo was being

loaded on board the 1 st Defendant Vessel the Owners of the 1 st

Defendant Vessel asked the Plaintiff to make certain disbursements

on behalf of the 1st Defendant Vessel because they were short of

funds. The Owners of the 1st Defendant Vessel confirmed that once

such disbursements are made, the 1st Defendant Vessel will

commence her voyage to Romania. Based on such representations,

the Plaintiff disbursed amounts aggregating US$ 73,255 for/ on

behalf of the 1st Defendant Vessel.

8. The Plaintiff claims that contrary to representations

made by Owners of the 1st Defendant Vessel, the 1st Defendant Vessel

remains under PSC detention till date. Further, the Defendants are

501-comasl-22603-2023.doc

unable to provide any clarity as to when (or if at all) the 1 st

Defendant Vessel will be able to commence the voyage to Romania.

In these circumstances, on 17.08.2023 the Plaintiff was constrained

by notice to terminate the contract of carriage and demand return of

the cargo on board the 1st Defendant Vessel so that it can arrange to

have the Cargo shipped by a substitute vessel. The Defendants have

not responded to the Plaintiff's notice of 17.08.2023.

9. Against the backdrop of the foregoing, the Plaintiff

claims reimbursement of disbursements incurred by it to the extent of

US$ 73,255. The Plaintiff also claims ₹ 65,50,000 towards losses/

expenses it expects to incur to off-load and store the cargo, pending

arrangement of a substitute vessel. Lastly, the Plaintiff reserves liberty

to amend its claim after it arranges a substitute vessel since it will

then be in a position to accurately quantify its losses.

10. Along with the suit, the Plaintiff has filed an

Interim Application seeking urgent orders against the 1 st Defendant

Vessel/ her owners and crew and the 2nd Defendants directing them

to berth the 1st Defendant Vessel and discharge the Cargo into the

Plaintiff's custody. The Plaintiff has also sought orders and directions

501-comasl-22603-2023.doc

against the port, customs and other concerned authorities, directing

them to allow the 1st Defendant Vessel to berth and discharge the

Cargo into the Plaintiff's custody.

11. I have heard the learned Counsel appearing on

behalf of the Plaintiff and have considered the averments made in the

plaint and the documents produced with the Plaint. On going

through the Plaint and exhibits, I find that a prima facie case for

arrest of the 1st Defendant Vessel is made out.

12. The Plaintiff's claims arises on account of

unseaworthiness of the 1st Defendant Vessel due to which the 1st

Defendant Vessel is unable to perform the voyage from Mumbai to

Constanta. The Plaintiff's claim also arises on account of

disbursements incurred on behalf of the 1st Defendant Vessel. The

Plaintiff's claims are therefore 'maritime claims' as contemplated by

Sections 4(1)(g), 4(1)(h), 4(1)(l), 4(1)(n) and 4(1)(p) of the

Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017.

The right to arrest the Defendant vessel for the aforesaid maritime

claims is to be found in section 5(2) read with section 5(1) of the

Act.

501-comasl-22603-2023.doc

13. In these circumstances, I find that there is a cause

of action in favour of the Plaintiff. I also find that since the 1 st

Defendant Vessel is at Mumbai anchorage she is within the admiralty

jurisdiction of this Court. As stated above, the Plaintiff has made out

a prima facie case. I am also satisfied that the balance of convenience

lies with the Plaintiff to whom, irreversible prejudice will be caused if

the reliefs sought in the Judge's Order are denied. Accordingly, I

order and direct the arrest of the Defendant Vessel m.v. WEN SHAN

(IMO No. 9311804), along with her hull, tackle, engines, machinery,

boats, bunkers, equipment, paraphernalia and other appurtenances

presently at anchorage at the Port of Mumbai or wherever she is

within the territorial waters of India until the satisfaction of the

Plaintiff's claim.

14. I have seen the Judge's Order and it seems to be in

the proper form and with the appropriate contents. I accept the

undertakings contained in the Judge's Order as undertakings to the

Court. I therefore make an order in terms of the Judge's Order in the

facts and circumstances of the present case.

15. The Plaintiff's Advocate undertakes to serve

Warrant of Arrest on the 1st Defendant's Vessel and other concerned

501-comasl-22603-2023.doc

Authorities within a period of six weeks from today. The undertaking

is accepted.

16. After service of this order of arrest, if the 1 st

Defendant Vessel is not released by furnishing security or bail amount

or an application for vacating the order of arrest is not filed within 45

days, or the vessel is found abandoned by the person in-charge of her

or her owner, or if she is found unmanned, then, in such an event, on

a communication being sent by the Plaintiff, the office of the Sheriff

of Mumbai shall present a Sheriff's report for auctioning the 1 st

Defendant Vessel within 14 days from the date of receiving such

communication. The Plaintiff is also entitled to file an application for

sale of the vessel even prior to the 45 days, if it is apparent that the

owner of the 1st Defendant Vessel will not be furnishing security or

filing an application for vacating the order of arrest or if the

circumstances are such that the sale of the 1 st Defendant Vessel is

justified.

17. In so far as the Interim Application is concerned,

considering the 1st Defendant Vessel is declared as unseaworthy by

the PSC, I find that the Plaintiff has made out a case for immediate

discharge of the Cargo. Accordingly, I allow the interim application

501-comasl-22603-2023.doc

in terms of prayer clauses (a.) & (b.) and direct the 1 st Defendant

Vessel/ her owners, operators and crew to forthwith berth the 1 st

Defendant Vessel and discharge the Cargo belonging to Siemens India

into the Plaintiff's custody and/ or into the custody of the party

nominated by the Plaintiff. I also direct the port, customs and all

other authorities to forthwith allow the 1 st Defendant Vessel to take

berth and discharge the Cargo into the Plaintiff's custody and/ or

into the custody of the party nominated by the Plaintiff. I clarify that

if any costs are to be incurred for berthing the 1 st Defendant Vessel

and discharging the Cargo the same may be borne by the Plaintiff at

the first instance, with liberty to the Plaintiff to claim them by

adopting appropriate proceedings.

18. All concerned, including Port and Customs

Authorities will act on production of an authenticated copy of this

order (signed by the Associate/ Private Secretary of this Court) sent

to them by email by the Plaintiff's advocate.

[ R.I. CHAGLA J. ]