Full Judgment
Banerjee, J.
1. Leave granted.
2. Issuance of warrant for the arrest of the vessel M.V. WON FU berthedat Madras Port has been the principal controversy before the Madras HighCourt in its Admiralty Jurisdiction.
3. The plaintiff being the appellant herein instituted a suit for recovery ofdamages of 11 lakhs for breach of contract with interest at the rate of 24%per annum by reason of loss and damages suffered and caused by breach ofcontract by the defendant vessel. The factual element we will refer shortlyhere after but presently be it noted that against the refusal to entertain thesuit and the consequent dismissal of the same before the learned trial judge,the plaintiff moved the appellant forum in the High Court but having failedto obtain the relief the petition for special leave under Article 136 has beenmoved before this Court and this Court at the admission stage itself uponissuance 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 appearsthat the plaintiff being a sole proprietor concern stands involved in thebusiness of export of mines and minerals especially in Feldspar. In the usualcourse of events plaintiff entered into an agreement with M/s. SAN I.Mining Company at Taiwan to export Feldspar and to complete theagreement between the parties the plaintiff entered into an agreement withsaid to be defendant's ship deponent owner, to export the cargo of Feldsparfrom Tuticorin harbour to Taiwan. The agreement is stated to be evidencedin a fixture note dated 20.10.1995. The relevant extract whereof are as below:
'It is this day mutually agreed between TaiyoSenpaku Kaisha, Ltd. Tokyo as deponent owners andEpoch Entrrepots. Madras as charterers on the followingterms and conditions -Vessel: XY WONFU AS DESCRIBED.-Cargo: XIN 8.000 MI IN IF BLS FELDSPARUPTO VSLS FULL CAPA CHOP-L/D Port: 2SB SP Tuticorin India/1-SB 1 SPTAICHUNG, TAIWAN-lay can: 25th Oct-5th Nov.1995-L/D Rate: 1.200 XT PWDSSEX BIU/1.500MTPWDSEEX W IUARC-Freight: VSD 25.00 PWI FIOST BSS 1/1-Payment: 100 pet frt payable w/I 5 banking days acolS/BLS/LFET--period-Full frt TB dewed earned by over CH is discountlessnon-returnable whether CGO/VSL Lost or not lost.-CGO TB loaded in unobstructed main hold only-Demurrage: USS 4000.00/DHD Vis be-Agents Owners Agents be..............deponent owners Charterers TAIYO Sempaku Kaisha Ltd. ManagerM. Takahashi. Managing EPOCH EntrepotsDirector Suguna Apartments12-A, Lloyds Road,Madras-600 014'
5. On the factual matrix the learned Senior Advocate Mr. ATM Sampathrather emphatically contended that the contract stands completed by thesigning of the fixture note and the plaintiff has also acted in terms therewithby exporting stock 8400 MT of Feldspar to Taiwan through the defendant'svessel on 25.10.1995. It has been the contention that the defendant's shiphas failed to act in terms of the fixture note by reason where for the plaintiffhas not been able to send the cargo to the purchaser as per the schedule thusexposing the plaintiff to suffer a loss of 11 lakhs by reason of a deliberateact of default to ship the cargo on the vessel.
6. As detailed above the learned single Judge dismissed the suit andrecorded inter alia the following:
'The plaintiff sought for the claim of arrest of thevessel and for damages. The arrest of the vessel can besought for only under the Admiralty Jurisdiction.Nothing was performed with regard to loading of cargoin the ship. The plaintiff states that since the contract forexport of goods was dropped, the vessel must be arrested.Since no shipment of the cargo has taken place, theAdmiralty Jurisdiction of this Court cannot be invoked.The fixture note Ex.P1 is between the plaintiff and TaiyoSenpaku Kaisha Ltd. No contract has been entered intobetween the plaintiff and the defendant, the owner of thevessel WON FU. Absolutely there is no deponent to linkthe defendant with the alleged contract and that there wasa concluded contract between the plaintiff and thedefendant. In the absence of any specific evidence toprove that there was a contract between the plaintiff andthe defendant. I am quite unable to accept the case of theplaintiff. I hold that there is no privity of contractbetween the plaintiff and defendant. If at all there wasbreach of contract, the plaintiff has to seek their remedyunder the proper forum for breach of contract. Since noshipment had taken place and as the ship is not involvedfor the breach of contract by the deponent owner or anyother party the Admiralty Jurisdiction of this Courtcannot be involved and arrest of vessel cannot be soughtfor. The facts and circumstances of the case do not comeunder the Admiralty Jurisdiction of this Court. Further,the suit is also not filed against the proper party. Thename of the owner of this ship is not mentioned in theshort cause title. It is not clear from the plaint as toagainst whom the plaintiff sought the relief. The suit hasnot been properly framed.'
7. It is this conclusion and the finding of the learned Single Judge standsaccepted by the Division Bench without however much elucidation on thesame and as such we refrain ourselves from recording herein any furthersave that the appeal by the plaintiff stands rejected and the present appealbefore this Court by reason therefore.
8. Without however going to the issue of privity of contract which hasbeen one of the basic reasons for the learned single judge to come to theconclusion, be it noted that the suit has been framed for the arrest of thevessel MV WON FU in the Admiralty Jurisdiction of the High Court atMadras. At this juncture however a brief historical perspective of theAdmiralty Jurisdiction in the country may be adverted. The three erstwhilePresidency High Courts (in common and popular parlance Chartered HighCourt), namely, Calcutta, Bombay and Madras were having the LettersPatent for the conferment of the ordinary original civil jurisdiction and byreason of the provisions contained therein read with the Admiralty CourtAct, 1861 and subsequent enactment of Colonial Courts of Admiralty Act,(SIC) and Colonial Courts of Admiralty (India) Act.
9. The High Courts of these three Presidency towns were conferred withthe same jurisdiction as was vested in the High Court of England and theHigh Courts were declared to be otherwise competent to regulate theirprocedure and practice as would be deemed necessary corresponding to theIndian perspective in exercise of the admiralty jurisdiction by way of rules(SIC) in that regard. There is no manner of doubt that there existed or isexisting an fetter in regard to the exercise of admiralty jurisdiction in so faras the three High Courts at Calcutta, Bombay and Madras are concerned.
10. It is in this context observations of this Court M.V. Elisabeth v. Harwan Investments and Trading Pvt. Ltd., Goa : [1992]1SCR1003 : [1992]1SCR1003 seemto be of some assistance. This Court in paragraph 26 of the report observed:
'Assuming that the admiralty powers of the HighCourts in India are limited to what had been derived fromthe Colonial Courts of Admiralty Act, 1890, that Act,having equated certain Indian High Courts to the HighCourt of England in regard to admiralty jurisdiction, mustbe considered to have conferred on the former all suchpowers which the latter enjoyed in 1890 and thereafterduring the period preceding the Indian Independence Act,1947 what the Act of 1890 did was, as stated earlier notto incorporate any English statute into Indian law, but toequate the admiralty jurisdiction of the Indian HighCourts over places, persons, matters and things to that ofthe English High Court. As the Admiralty jurisdiction ofthe English High Courts expanded with the progress oflegislation and with the repeal of the earlier statues,including in substance the Admiralty Court Acts of 1840and 1861, it would have been reasonable and rational toattribute to the Indian High Courts a correspondinggrowth and expansion of admiralty jurisdiction during thepre-independence era. But a restrictive view was takenon the question in the decision of the High Courts citedabove.'
11. Turning attention on to the appeal presently before us the cardinalissue arise for consideration stands out to be the applicability of the concept(SIC) Maritime Lien on the basis of the fixture note as above stated andalternatively as to whether the fixture note by itself would give rise to a rightin rem thereby enabling the plaintiff to initiate proceedings under AdmiraltyJurisdiction of the High Court at Madras.
12. Before embarking on to the discussions apropos above, certainnotions as regards the constituents of Maritime Liens ought to be noticed:the Encyclopedia Britannica has the following to state as regards MaritimeLien and the same reads as below:
'Maritime liens: although admiralty actions arefrequently brought in personam, against individual orcorporate defendants only, the most distinctive feature ofadmiralty practice is the proceeding in rem, againstmaritime property, that is, a vessel, a cargo, or 'freight',which in shipping means the compensation to which acarrier is entitled for the carriage of cargo.
Under American maritime law the ship ispersonified to the extent that it may sometimes be heldresponsible under no liability. The classic example ofpersonification is the 'compulsory pilot age' case. SomeState statutes impose a penalty on a ship owner whosevessel fails to take a pilot when entering or leaving thewaters of the State. Since the pilotage is thuscompulsory, the pilot's negligence is not imputed to theship owner. Nevertheless, the vessel itself is chargedwith the pilot's fault and in immediately impressed withan inchoate maritime lien that is enforceable in Court.
Maritime liens can arise not only when thepersonified ship is charged with a maritime tort such as anegligent collision or time tort, such as a negligentcollision or personal injury, but also for salvage services,for general average contributions and for breach ofcertain maritime contracts.'
13. Incidentally, be it noted that this concept of maritime lien did comefor judicial scrutiny before the Courts often and it is Sir John Jervis whoprobably for the first time in The Bold Buccleugh1851 (7) Moo P.C. 267defined the maritime lien as below:
'...a maritime lien is well defined ..... to mean a claim orprivilege upon a time to be carried into effect by legal process.... that process to be a proceeding in rem .... This claim orprivilege travels with the thing into whosoever possession itmay come. It is inchoate from the moment the claim orprivilege attaches, and, when carried into effect by legalprocess by a proceeding in rem, relates back to the period whenit first attached.'
14. While the definition provided by Sir John Jervis, as above, standsaccepted in various other decisions of the English Courts, the definition byAtkin L.J. in The Ternate(1922 (P) 259) became subject matter of criticismby reason of its failure to distinguish a maritime lien and its maritime rightof action in rem. Atkin L.J., however, in The Ternate defined the maritimelien as below:
'..... of the right by legal proceedings in an appropriate form tohave the ship seized by the officers of the Court and madeavailable by sale if not released on bail.'
15. In M.V. Al Quamar v. Tsavliris Salvage (International) Ltd. and Ors. : AIR 2000 SC2826 : AIR 2000 SC2826 this Court upon reference toElisabeth's case (supra) has the following to state as regards the attributes ofmaritime lien. This court observed in paragraphs 33 to 36 as below:
33. Be it noted that there are two attributes to maritimelien: (a) a right to a part of the property in the res; and (b)a privileged claim upon a ship, aircraft or other maritimeproperty in respect of services rendered to, or injury causedby that property. Maritime lien thus attaches to theproperty in the event the cause of action arises and remainsattached. It is, however, inchoate and very little positivein value unless it is enforced by an action. It is a right whichsprings from general maritime law and is based on theconcept as if the ship itself has caused the harm, loss ordamage to others or to their property and thus must itselfmake good that loss. (See in this context 'Maritime Law' byChristopher Hill, 2nd Edn.)
34. As regards the concept of proceedings in rem andproceeding in personam, it should be understood asactions being related to the same subject-matter and arealternative methods pertaining to the same claim and canstand side by side.
35. In this context, reference may also be made to theobservations of this Court in M.V. Elisabeth's case, : [1992]1SCR1003 : [1992]1SCR1003 (supra), as stated below:-
'47. Merchant ships of different nationalitiestravel from port to port carrying goods orpassengers. They incur liabilities in the courseof their voyage and they subject themselves tothe jurisdiction of foreign States when they enterthe waters of those States. They are liable to bearrested for the enforcement of maritime claims,or seized in execution or satisfaction ofjudgments in legal actions arising out ofcollisions, salvage, loss of life or personalinjury, loss of or damage to goods and the like.They are liable to be detained or confiscated bythe authorities of foreign States for violatingtheir customs, regulations, safety measures, rulesof the road, health regulations, and for othercauses. The coastal State may exercise itscriminal jurisdiction on board the vessel for thepurpose of arrest or investigation in connectionwith certain serious crimes. In the course of aninternational voyage, a vessel thus subjects itselfto the public and private laws of variouscountries. A ship travelling from port to portstays very briefly in any one port. A plaintiffseeking to enforce his maritime claim against aforeign ship has no effective remedy once it hassailed away and if the foreign owner has neitherproperty or residence within jurisdiction. Theplaintiff may therefore detain the ship byobtaining an order of attachment whenever it isfeared that the ship is likely to slip out ofjurisdiction, thus leaving the plaintiff withoutany security.
48. A ship may be arrested (i) to acquirejurisdiction; or (ii) to obtain security forsatisfaction of the claim when decreed; or (iii) inexecution of a decree. In the first two cases theCourt has the discretion to insist upon securitybeing furnished by the plaintiff to compensatethe defendant in the event of it being found thatthe arrest was wrongful and was sought andobtained maliciously or in bad faith. Theclaimant is liable in damages for wrongfularrest. This practice of insisting upon securitybeing furnished by the party seeking arrest of theship is followed in the United States, Japan andother countries. The reason for the rule is that awrongful arrest can cause irreparable loss anddamages to the shipowner, and he should in thatevent be compensated by the arresting party.(See Arrest of Ships by Hill, Soehring, Hosoiand Helmer, 1985)'.
36. In Halsbury's Laws of England, the nature ofaction in rem and the nature of action in personam isstated to be as below:
310. Nature of actions in rem and actions inpersonam. -- An action in rem is an actionagainst the ship itself, but the view that if theowners of the vessel do not enter an appearanceto the suit in order to defend their property nopersonal liability can be established against themhas recently been questioned. It has been statedthat, if the defendant enters an appearance, anaction in rem becomes, or continues also as, anaction in personam; but the Admiraltyjurisdiction of the High Court may now in allcases be invoked by an action in personam,although this is subject to certain restrictions inthe case of collision and similar cases, exceptwhere the defendant submits or agrees to submitto the jurisdiction of the Court.
The foundation of an action in rem is thelien resulting from the personal liability of theowner of the res. Thus an action in rem cannotbe brought to recover damages for injury causedto a ship by the malicious act of the master ofthe defendant's ship, or for damage done at atime when the ship was in the control of thirdparties by reason of compulsory requisition. Onthe other hand, in several cases, ship allowedby their owners to be in the possession andcontrol of charterers have been successfullyproceeded against to enforce liens which arosewhilst the ships were in control of such thirdparties.
The defendant in an Admiralty action inpersonam is liable, as in other actions in theHigh Court, for the full amount of the plaintiff'sproved claim. Equally in an action in rem adefendant who appears is now liable for the fullamount of the judgment even though it exceedsthe vale of the res or of the bail provided. Theright to recovery of damages may however beaffected by the right of the defendant to thebenefit of statutory provisions relating tolimitation of liability.'
16. In M.V. AL Quamar (supra) this Court spoke of two attributes ofmaritime lien as noticed herein before. The International Convention forUnification of Certain Rules relating to Maritime Liens and Mortgages atBrussels in 1967 defined the maritime lien to be as below:
a. wages and other sums due to the master, officers and othermembers of the vessel's complement in respect of theiremployment on the vessel;
b. port, canal and other waterways and pilotage dues;
c. claims against the owner in respect of loss of life or personalinjury occurring, whether on land or on water, in directconnection with the operation of the vessel;
d. claims against the owner based on tort and not capable of beingbased on contract, in respect of loss of or damage to propertyoccurring, whether on land or on water in direct connectionwith the operation of the vessel;
e. claims for salvage, wreck removal and contribution in generalaverage.
17. Incidentally, the Admiralty Court Act, 1861, read with theInternational Convention for Unification of Certain Rules relating toMaritime Liens and Mortgages, Brussels, 1926 read with Brussels Arrest (OfSeagoing Ships) Convention 1952 and Brussels Maritime Liens Convention1967 clearly indicate that a claim arising out of an agreement relating to theuse and/or hire of the ship although a maritime claim would not be liable tobe classified as maritime lien. (See in this context Thomas on MaritimeLiens).
18. Mr. Sampath, learned Senior Advocate with all the emphasis in hiscommand contended that the breach of the agreement in the facts of thematter under consideration cannot but be ascribed to be a maritime lien,whereas Mr. Sundaram, learned Senior Advocate appearing for therespondents rather strongly refuted the same and contended that evenassuming that there was in fact an agreement in existence between therespondent and the deponent owner, question of there being a maritime lienby reason of the breach of such an agreement does not and cannot arise.
19. We have in this judgment herein before dealt with the attributes ofmaritime lien. But simply stated maritime lien can be said to exist orrestricted to in the event of (a) damage done by a ship; (b) salvage; (c)seamen's and master' swages; (d) master's disbursement; and (e) Buttery;and in the event a maritime lien exists in the aforesaid five circumstances, aright in rem is said to exist. Otherwise, a right in personam exists for anyclaim that may arise out of a contract.
20. Mr. Sampath did place very strong reliance on to the fixture note andcontended that the document itself cannot but be termed to be a concludedcontract relying upon the maritime lien. Upon reliance thereon, Mr.Sampath contended that the fixture note contains all the particulars and hasbeen issued after the completion of negotiations and upon acceptance of theterms and conditions, by reason whereof the fixture note is final and thesame binds not only the parties to the agreement but also the vessel.Incidentally, the fixture note stands issued by the Japanese Company (TaiyoSenpaku Kaisha Ltd.) through its agent in Malaysia, M/s. Oriental ShippingCorporation.
21. Further on the issue, we find Thomas on Maritime Liens stated it torepresent a small cluster of claims which arise either out of services renderedto a maritime res or from damage done to a res and listed five several headsof maritime liens as under:
(a) Damage done by a ship
(b) Salvage
(c) Seamen's wages
(d) Master's wages and disbursements
(e) Buttery and Respondent
22. The limited applicability of such a lien thus well illustrate that notevery kind of service or every kind of damage which arises in connectionwith a ship gives rise to a maritime lien. We, however, hasten to add thatthis is apart from the statutory enactments which may further list out variousother forms of maritime claims. In the Ripon City (1897) P. 226, 246,Goral Barnes, J. upon appreciation of this facet of a maritime lien and also,in part, to the surrounding policy considerations observed:
'... A maritime lien travels with the vessel intowhosoever possession it comes, so that an innocent purchaserof a ship may find his property subject to claims which existprior to the date of his purchase, unless the lien is lost by lachesor the claim is one which is barred by the Statutes ofLimitation. This rule is stated in The Bold Buccleugh ...to bededuced from the civil law, and, although it may be hard on aninnocent purchaser, if it did not exist a person who was ownerat the time a line attached could defeat the lien by transfer if hepleased.'
23. As regards the issue of relationship between a maritime lien andpersonal liability of a res owner, Thomas has the following further to state:
'The issue as to the relationship between a maritime lineand the personal liability of a res owner is therefore one whichmay fall to be answered differently as between individualsmaritime liens. It is clear that the various maritime liens donot, in this regard, display common characteristics. The factthat there exists this disparity may in turn be a symptom of theabsence of any clearly defined theoretical framework in thedevelopment of the law relating to maritime liens. It is alsonote-worthy that the emphasis on personal liability is mostclearly established in relation to the damage and disbursementmaritime liens which were the last in point of time to beestablished.'
24. As regards the merits of the matter presently, Mr. A.T.M. Sampath,commented that the factum of contract between the parties was clearlyadmitted by the agent of the respondent vessel in its counter dated 24.6.1996in Application No. 1147 of 1996. The admission of the Vessel is asfollows:-
'As per the contract between the plaintiff and therespondent dated 20.10.95 there is absolutely no provision forpayment of 24% interest in the case of any delayed shipment.'
25. It is in this context it has been contended that the respondent vesselnever disclosed the owner of the vessel in the written statement and replystatement and as a matter of fact till date the respondent vessel did notdisclose who is actually contesting the case. For the first time in the crossexamination they marked the 'Lloyd's Maritime Directory' of the year 1998and in which the owner of the vessel has been shown as one Pam bridgeMaritime Inc., Panama City. Only in the Additional Written Statement forthe first time it has been stated that the owner is in Hongkong, but even thename of the owner was not disclosed. The records depict that the respondentvessel filed a power of attorney before the trial court. In which SkarrupManagement of Hongkong gave power of attorney in favour of one PCThilak and Venkatachalam. The above said Venkatachalam filed the counterin O.A. No. 1147 of 1996. But P.C. Thilak the other power of attorneysubsequently filed a reply statement, in which he has stated that theadmission made by the other power agent is without getting the instructionfrom the owner and without knowing the fact that they are not the parties tothe document but yet the respondent vessel did not disclose as to the ownerof the vessel.
26. Further reliance was placed on the decision of this Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Ors. : [1974]2SCR544 ,wherein this Court in paragraph 27 stated as regards the admission ofpleading the following:
'...Admission in pleadings or judicial admissions,admissible under Section 58 of the Evidence Act, made by theparties or their agents at or before the hearing of the case, standon a higher footing than evidentiary admissions. The formerclass of admissions are fully binding on the party that makesthem and constitute a waiver of proof. They by themselves canbe made the foundation of the rights of the parties. On theother hand evidentiary admissions which are receivable at thetrial as evidence, are by themselves, not conclusive. They canbe shown to be wrong.'
27. In continuation of his submission as regards the fixture note it hasbeen the definite submission of Mr. Sampath that the Japanese Companycannot but be said to be the deponent owner of the vessel M.V. WON FUand, however, thus leads us to the next issue as regards the maintainability ofthe suit upon an assumption that the latter has been the deponent owner.Black's Law Dictionary (7th Edition) illustrates the meaning of 'dispone'being available in Scot's Law and means to grant or to convey. It is on thisscore, Order XLII Rule 2 of the Original Side Rules of the Madras HighCourt has been referred to, which reads as below:
'A suit shall be instituted by a plaint drawn up,subscribed and verified according to the provisions of the code,save that if the suit is in rem, the defendants may, subject tosuch variations as the circumstances may require, be describedas 'the owners and parties interested in the vessel' or otherproperty proceeded against instead of by name.'
28. Mr. Sampath contended that the suit is filed under the admiraltyjurisdiction in rem in the Original Side of the High Court of Judicature atMadras and not in personam since the respondent vessel as per the fixturenote was bound to make itself available in Tuticorin Port and the lay can timewas fixed as 25th October-5th November to load 8,000 MTs and thedestination was Taiwan. The buyer of the cargo is San-I-Mining, Taiwan.The appellant informed the same to his buyer immediately after entering ofthe agreement with Taiyo in Ex.P.2 dated 26.10.1995. Further it has beenstated that in order to avoid demurrage, the cargo was transported from theappellant's stockyard to the local clearing and forwarding agent M/s. LotusMarine Shipping Clearing and Forwarding Agent's stockyard near the Portand thus it is a duty incumbent of the Charterer to be ready with the cargonear the stockyard for immediate shipment. It has been contended that oncethe contract was entered between the parties and the ship is available forshipment of the cargo, it is the bounden duty and obligation under thecontract for the owners and master of the vessel to make available of theship as agreed in the contract and any breach, if occasioned, would entitlethe Charterer to claim damages for the loss. In the present case the ship iswithin the territorial water of India. The ship is unloading iron cargo atMadras Port as per appellant's agent's information to the appellant. Theappellant informed the same to his buyer in Taiwan in Ex.P2 on 26.10.1995.The appellant when waited for the ship to reach the Tuticorin Port to load hiscargo, he received the message, the copy of fax message sent to thedeponent owner from his agent in Malaysia in Ex.P.3 dated 27.10.1995stating that the respondent vessel is dropping the business and it containsfurther information that if the vessel did not perform this contract it wouldresult in serious consequences.
29. Mr. Sampath contended that the appellant immediately filed the suiton 30.10.95 under the admiralty jurisdiction in rem and the order of arrestwas passed on 1.11.1995 and the ship was arrested on 2.11.1995. OneSkarupp Management, Hongkong entered appearance through its counselM/s King & Patridge. (But no affidavit of interest was filed as enumeratedin the Original Side Rules and this came to the knowledge of the appellantonly when the appellant filed a petition to peruse the records at the time oftrial.) To release the vessel, a bank guarantee was given and the ship leftthe jurisdiction of India upon furnishing security for the release.
30. It is on this score very strong emphasis has been laid don the decisionof this Court in M.V. Elisabeth (supra). Special attention has been drawto paragraph 44 of the Report in M.V. Elisabeth which reads as follows:
'The vital significance and distinguishing feature of anadmiralty action in rem is that this jurisdiction can be assumedby the coastal authorities in respect of any maritime claim byarrest of the ship, irrespective of the nationality of the ship orthat of its owners, or the place of business or domicile orresidence of its owners or the place where the cause of actionarose wholly or in part.'
31. In para 44 of M.V. Elisabeth (supra) it has been further observedfollows:
'.... In admiralty the vessel has a juridical personality,an almost corporate capacity, having not only rights butliabilities (sometimes distinct from those of the owner) whichmay be enforced by process and decree against the vessel,binding upon the world, for admiralty in appropriate casesadministers remedies in rem, i.e. against the partypersonally....'
32. It is submitted that in the present case the respondent vessel enteredappearance through its counsel but the affidavit of interest by the owner ofthe vessel was not filed and the respondent vessel without disclosing itsowner contested the case. Again emphasis should be made to the fact thatSkarrup Management of Hongkong filed a power of attorney in favour oftwo persons jointly and severally. In the course of the cross-examination ofthe PW.1 for the first time the respondent vessel produced Lloyd's MaritimeDirectory Ex.D1 and claimed that one Pam bridge Maritime Inc., of PanamaCity was the owner in the year 1998. But in the additional writtenstatement filed by the respondent vessel on 30.7.1998 in para 2 it has beenstated as follows:
'It is submitted that the aforementioned counter affidavitwas filed in reply to the plaintiff's applications for amendmentwhen the Defendant's agent in Chennai did not have completeinstructions from the defendant who is at Hongkong.'
33. The additional written statement and the Lloyd's Maritime Directoryare of the same year 1998. But in the additional written statement there isno mentioning that the respondent is at Panama City. The Lloyd's MaritimeDirectory of the year 2000 did not contain the name of M.V. Won Fu. Thebook is published every year. Even the author of the book did not guaranteeits authenticity.
34. The power of attorney of Skarupp Management after the disposal ofthe O.S.A. filed a petition seeking the permission of the High Courtpermitting the respondent's counsel to withdraw the amount, for the solereason that the order of the High Court in C.S. No. 1693 of 1995 is that themoney, which is lying in the fixed deposit in the credit of the suit, should berefunded to the respondent vessel. As per the order of the High Court themoney can be paid only in favour of Pam bridge Maritime Inc. In theapplication seeking the permission of the Court to permit the respondent'scounsel to withdraw the amount once again it has been stated that the owneris in Hongkong. Thus, the suit is contested without disclosing the ownershipof the respondent vessel before the Lower Court as well as before this Court.Thus the suit is stated to be contested in rem and in personam.
35. Mr. C.A. Sundaram, Senior Advocate, appearing for the respondent,on the other hand very strongly contended that even assuming that anagreement had come into effect between the owner and the deponent owner,but unless the charter was by demise, whereby the possession and control ofthe vessel has to be given to the deponent owner, question of enforcing thesame is an action in rem and against the res would be rather futile.Incidentally, this aspect of the matter, namely, the action in personam andthe action in rem has been rather elaborately dealt with in M.V. Elisabeth(supra) as also in M.V. AL Quamar (supra).
36. Even, however, assuming the agreement has in fact been entered intoby the deponent owner, unless sufficient evidence is laid that the charterwas by demise, whereby the possession and control of the vessel was givento the deponent owner, question of pursuing the cause of action against thevessel would not arise. Needless to add that charter parties are of threekinds; (a) Demise Charter; (b) Voyage Charter; and (c) Time Charter.Whereas in demise charter the vessel is given to the charterer who thereaftertakes complete control of the vessel including manning the same, in bothvoyage charter and time charter, master and crew are engaged by the ownerwho act under owner's instructions but under the charterer's directions.Simply put, voyage charter is making available the vessel for use of carriagefor a particular voyage and the time charter correspondingly is where thevessel is made available for carriage of cargo for a fixed period of time. Inthe contextual facts, apart from the fixture note, no other documentarysupport is available as to whether ownership arose through a charter bydemise and possession and control of the vessel has already been given tothe deponent owner. The facts disclose that the deponent was an intendingcharterer of the vessel from the owner and it is on expectancy of such acontract, the fixture note was issued. There was as a matter of fact nocharter party or agreement with the charterer and some eventuality in futureis stated to be the basis of the cause of action. It is on this score we think itexpedient to record that even upon assumption of the appellant's case at itshighest, no credence can be attached thereto. The deponent owner was not ademise charterer but it is on the happening of such an event in future thatsuch a fixture note has been issued. In our view there is no sufficientevidence available as regards the action in rem making the vessel liable inthe 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 notarise, though however, we are not expressing any opinion as regards themaintainability of an action in personam or its eventual success.
37. Inasmuch as the claim in the present case arises out of contract dehors a maritime lien, no action in rem is permissible, neither a suit in theoriginal jurisdiction of the Madras High Court can be maintained against thevessel.
38. On the wake of the aforesaid, this appeal fails and is dismissed,without, however, any prejudice to initiate further action in personam. Nocosts.