Bombay High Court
Shri Paul Subash Arvind vs M.V. Wen Shan Imon No. 9311804 on 4 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
501-COMAS(L) 229.24 with JO 5.24.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS COMMERCIAL DIVISION
ADMIRALTY & VICE-ADMIRALTY JURISDICTION
COMMERCIAL ADMIRALTY SUIT (L) NO. 229 OF 2024
WITH
JUDGE'S ORDER NO. 5 OF 2024
Shri Paul Subash Arvind ... Plaintiff
Versus
m.v. WEN SHAN (IMO No. 9311804) .... Defendant
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Ram Jay Narayan i/b Bimal Rajasekhar, Advocates for the Plaintiff.
None for the Defendant.
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CORAM : R.I. CHAGLA, J.
DATE : 4TH JANUARY, 2024.
ORDER:
1. The Plaintiff's Advocate has informed me that there is no valid/
active Caveat against Arrest of the Defendant Vessel entered in the
KAVITA
SUSHIL Caveat Warrant Book.
JADHAV
2. The above Judge's Order is moved ex-parte after circulation
was granted to the Plaintiff.
501-COMAS(L) 229.24 with JO 5.24.doc
3. The urgent relief sought for by the Plaintiff in the suit is arrest
of the Defendant Vessel. The Plaintiff is the master of the Defendant
Vessel, currently serving on-board the Defendant Vessel.
4. It is the Plaintiff's contention that it has unpaid crew member
wages for the period served on-board the Defendant Vessel and has
also incurred disbursements for/ on behalf of the Defendant Vessel/
her Owners. On this basis the Plaintiff seeks a judgment and decree
against the Defendant Vessel, and the arrest, sequestration,
condemnation and sale of the Defendant Vessel, for securing and/ or
satisfying its claim of US$ 44,120. The Plaintiff also claims interest
and costs.
5. The Plaintiff's case is that it was retained as the 'Master' of the
Defendant Vessel pursuant to an employment contract dated
08.03.2023. The Plaintiff was entitled to monthly wages of US$
5,000 under this Contract. The Plaintiff was accordingly signed on
the Defendant Vessel as her 'Master' at Incheon, South Korea on
08.03.2023.
6. It is the Plaintiff's case that as of date the Plaintiff is entitled to
wages aggregating US$ 45,000, against which he has received only
501-COMAS(L) 229.24 with JO 5.24.doc
wages aggregating US$ 10,000 (for March and April 2023). Thus,
balance wages receivable by the Plaintiff aggregates US$ 35,000. I
have seen the Statement of Account annexed as Exhibit C to the
Plaint.
7. In addition to the above claim for wages, the Plaintiff has a
claim for reimbursement of disbursements aggregating US$ 1,620,
incurred on account of the Defendant Vessel whilst she was at
Tuticorin.
8. Against the backdrop of the foregoing, the Plaintiff claims US$
35,000 on account of unpaid crew member wages, and US$ 1,620
towards the reimbursement of disbursements incurred by it. The
Plaintiff also claims interest and costs. Lastly, the Plaintiff reserves
liberty to amend its claim given that he is still serving on-board the
Defendant Vessel.
9. 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
Defendant Vessel is made out.
501-COMAS(L) 229.24 with JO 5.24.doc
10. The Plaintiff's claims arises on account of unpaid crew
members wages payable by the Owner of the Defendant Vessel. The
Plaintiff's claim also arises on account of disbursements incurred on
behalf of the Defendant Vessel. The Plaintiff's claims are therefore a
'maritime lien' and 'maritime claim' as contemplated by Sections 4(1)
(o), and 4(1)(p) read with Section 9 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(1) of the Act.
11. In these circumstances, I find that there is a cause of action in
favour of the Plaintiff. I also find that since the 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 would 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
501-COMAS(L) 229.24 with JO 5.24.doc
presently at Mumbai anchorage or wherever she is within the
territorial waters of India until the satisfaction of the Plaintiff's claim.
12. 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. The Judg's Order is signed
separately.
13. The Plaintiff's Advocate undertakes to serve the Warrant of
Arrest on the Defendant Vessel and other concerned Authorities
within a period of six weeks from today. The undertaking is accepted.
14. After service of this order of arrest, if the 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 Defendant
Vessel within 14 days from the date of receiving such
501-COMAS(L) 229.24 with JO 5.24.doc
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 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 expeditious sale of the Defendant Vessel is justified.
15. 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.]
