CHRISOMAR CORPORATION v. MJR STEELS PRIVATE LIMITED & ANR.
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- Court
- Supreme Court of India
- Decided
- Bench
- R. F. NARIMAN and SANJAY KISHAN KAUL
- Citation
- [2017] 14 S.C.R. 17
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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
Contract Act, I872 - ss.62, 63 - Applicability of.:.. Vessel in question owned by one Third Element Enterprises, a Cyprus company :-- Appellant-plaintiff supplied bunkers and other necessaries to the vessel and raised invoices which were not paid bv Third Element - Admiralty suit filed by appellant praying for arrest of the vessel - Vessel arrested - Subsequently, howeve1; appellant did not proceed with the matter as the parties had reached .an out of court settlement/agreement dtd. I 8. I .2000 - But, since no payment was made to the appellant, the vessel was re-arrested on 2.5.2000 - Respondent no.I filed written statement in the suit claiming that it had purchased the vessel through successive transfer of title in the vessel hence, no cause of action survived against Third Element, the original owner - Single Judge of High Court held that the plaintiffs were entitled to recover their dues- Division E Bench reversed the order - Whether on the day of arrest respondent no.I was the owner of the vessel and hence, appellant's claim against the original owner, Third Element on the date of institution of the suit would not lie -Also, whether in view of s. 62 there was a novation of the original agreement as the settlement dtd. I 8.1.2000 was acted upon and therefore, the original agreement under which payment was due to the appellant need not be performed -
Held
For a contract that is altered in material particulars, to fall u/s.62 the alieration must go to the very root of the original contract and change its essential character, so that the modified contrac;t must be read as doing away with the original contract - However, in the present case, the second agreement/settlement dealt with one leg of the original transaction, i.e. the leg ofpayment which was not made, while keeping the original transaction alive- Settlement read as a whole does not amount to novation of the original agreement - s. 63 would apply to the facts of the present case - Further, respondent H 17
A no. I failed to prove that there was a change of ownership of the vessel in its favour on the date of arrest i.e. on 2.5.2000 - Judgment of High Court is set aside and the decree of trial court is restored - Constitution of India - Art. 372 - The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 - s.2(1)(/), (g) and ss. 4, B 5, 6, 9, 12, 17 - Brussels Convention of 1952- Art. l (k) - International Convention of Maritime Lien and Mortgages, 1993- Arts.4, 8- Brussels Convention relating to the Arrest of Sea-Going Ships, 1992- International Convention on the Arrest of Ships, 1999- Art.3(J)(a) - Letters Patents of 1823, 1862 and 1865 - Admiralty Court Acts, 1840 and 1861 - Colonial Courts of Admiralty Act, C 1890 - Colonial Courts of Admiralty (India) Act,1891- Supreme Court of Judicature (Consolidation) Act, 1925 -Administration of Justice Act of 1956 - Supreme Court Act of 1981. Admiralty law - Maritime claim and Maritime lien - Difference between - Plea of appellant that the necessaries supplied by it to the vessel in question were not only maritime claim but also maritime lien on the vessel -
Held
Important materials wherever supplied to a ship for her operation/maintenance would fall within the definition of a maritime claim - A maritime lien, on the other hand, attaches to the property of the vessel whenever the cause of action arises, and travels with the vessel and subsists whenever and wherever the action may be commenced - A claim for necessaries supplied to a vessel does not become a maritime lien which attaches to the vessel - Brussels Convention of 1952 - Art.I (k). Admiralty law - Of India and England - History of - Discussed.
Catchwords
Admiralty law - Maritime claim - When can be asserted -
Held
A maritime claim can be asserted only at the time the arrest of the vessel is effected and not at the time of the institution of the suit - International Convention on the Arrest of Ships, 1999 -Art.3(l)(a). G Allowing the appeal, the Court HELD: 1.1 Admiralty law in England, as was held by Lord Halsbury in Currie v. M'Knight, is derived from the laws ofOleron and other ancient maritime codes like the Rhodian Sea Law, the Basilika, the Assizes of Jerusalem, the Baltic Laws of Wisbuy and the Hanseatic Code. In England, the common law courts could
Reporter's headnote (continued) and case details
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(Civil Appeal No. 1930 of2008)
pp. 18–19
LIMITED & ANR.
not give effective redress to cases which arose in admiralty, which were then left to the jurisdiction of specialist admiralty Judges. By the 18'& Century, the admiralty jurisdiction had fallen into "a feeble and neglected condition, and for long its proceedings excited no attention". The Admiralty Court Act, 1840 was the first of a series of statutes extending and defining the jurisdiction of the High Court of Admiralty in England. This was followed by the 1861 Admiralty Court Act and various subsequent enactments which were consolidated by the Supreme Court of Judicature (Consolidation) Act, 1925. By the Administration of Justice Act of 1956, the admiralty jurisdiction of the High Court was further widened and the Supreme Court Act of 1981 now defines what the admiralty jurisdiction of the High Court in England is. [Para 11) (34-B-D] Currie v. M'Knight 1897 AC 97 - referred to. 1.2 Insofar as our law is concerned, the admiralty law of the chartered High Courts has historically been traced to the · D charters of 1774 and 1798 as subsequently extended and clarified by the Letters Patents of 1823, 1862 and 1865. The Admiralty Court Act, 1840 and 1861, and the Colonial Courts of Admiralty Act, 1890 and 1891 essentially stated what the admiralty law in this country is, and these enactments continued as existing laws under Article 372 of the Constitution of India. The Republic of India has finally woken up to the need for updating its admiralty law. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 has been made by Parliament and has received the assent of the President on 9.8.2017, though it has not yet been brought into force. In this Act, "maritime claim" is defined in Section 2(1)(t) as being a claim referred. to in Section 4 and a "maritime lien" is defined in sub-section (g) of 2(1). [Paras 12, . 13) (34-E-F; 36~C-D]
1.3 Under Section 5 of the 2017 Act, the High Court may order for the arrest of a vessel which is within its jurisdiction for ·G the purpose of providing security against a maritime claim. Under Section 6 of the said Act, the High Court may also exercise admiralty jurisdiction by an order in personam in respect of the maritime claims referred to in Section 4. Section 9 of the Act sets out the inter se priority of maritime liens, but in so doing H
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A also informs that they are restricted to five subject matters only. Section 12 states that the Code of Civil Procedure is to apply in all proceedings before the High Court insofar as it is not inconsistent or contrary to the provisions of the Act. By Section 17, the Admiralty Court Acts of 1840 and 1861 and the Colonial B Courts of Admiralty Acts of 1890 and 1891 stand repealed. Also, the Letters Patent of 1865, insofar as it applies to the admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts, also stands repealed. An admiralty action in the courts of India commences against a vessel to enforce what is called a "maritime claim". Though India is not a signatory to the Brussels C Convention of 1952, a long list of maritime claims is given in Article 1 thereof. Sub-clause (k) of Article 1 states that important materials wherever supplied to a ship for her operation or maintenance would fall within the definition of a maritime claim. A maritime lien, on the other hand, attaches to the property of the vessel whenever the cause of action arises, and travels with the vessel and subsists whenever and wherever the action may be commenced. [Paras 14-16) [39-B; 40-F-H; 41-AJ 1.4 The International Convention on Maritime Lien and Mortgages, 1993 defines maritime liens in Article 4. Article 8 states the characteristics of such liens. It is clear that in our country at least claims for necessaries, though maritime claims, do not raise a maritime lien. [Paras 21-23)[48-B-C, E-F; 47-C-D) Bailey Petroleum Company v. Owners and parties interested in the vessel M. V. Dignity (Decision of Calcutta High Court) (1993) 2 CHN 208 - approved. F 2.1 The next important aspect that was argued was that the ownership of the vessel to enforce a maritime claim has to be seen at the stage of institution of the suit and not at the stage of arrest. The general rule in our country as to what crystallises on the date of a suit is reflected in Rameshwar case. However, Article G 3(l)(a), International Convention on the Arrest of Ships, 1999 which is in two parts states- First, arrest is only permissible of any ship if a maritime claim is asserted against the person who owned the ship at a time when the maritime claim arose for which the owner is liable, and second, that the same ship owner should H be the owner of the ship when the arrest is effected. India is not
'CHRISOMAR CORPORATION v. MJR STEELS PRIVATE 21 LIMITED & ANR.
a signatory to the aforesaid Convention, yet following M.V. A Elisabeth case, this Convention becomes part of our national law and must, therefore, be followed by this Court. Thus, Article 3(l)(a) sets the controversy at rest because a maritime claim can be asserted only at the time the arrest is effected and not .at the time of the institution of the suit. It is, therefore, clear that the B relevant date on which ownership of the vessel is to be determined is the date of arrest and not the date of institution of the suit.[Paras 26, 28) [53-B; 55-A-C] Rameshwar and Others v. Jot Ram and others [1976] 1 SCR 847 - relied on. c M V. Elisabeth and Others v. Harwan Investment and Trading Private Limited (1993) Suppl. 2 SCC 433 : [1992] 1 SCR 1003 - relied on. Monica S.(1967) 2 Lloyd's Rep. 113 ; Re, Aro Cop Limited 1980 1 All ER 1067- held inapplicable. D 2.2 On facts, a perusal of the agreement would show that so far as the appellant was concerned, performance was over- namely that a certain quantity of bunkers had in accordance with the original agreement been supplied. .Indeed this is expressly recited in the later agreement. It is only performance under the original agreement that was lacking from the side of the owner of the vessel, namely Third Element Enterprises. The very first clause of the agreement shows that the ship owners confirm that they owe to the appellant the original amount of the bunkers plus interest plus legal costs, which amounts are parasitic on the original invoice amount of US$ 94,611.25, and need. to be recovered in order to put the appellant in the same position as if the original contract had been performed by Third Element Enterprises. The agreement then goes on to state that since the vessel was being chartered for a voyage from Bangkok and would earn freight, the part of the freight amounting to the original in.voice amount plus interest plus legal costs would be paid directly by the charterers of the vessel to the bank account of the appellants. It is the appellant's case that Section 63 of the Contract Act is attracted to the facts of the present case whereas it is the respondent's case that Section 62 is so atti:acted, the result being that the original agreement is substituted by a fresh H
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A · agreement. The respondent's case is that Section 62 applies, since the original contract has been "altered". This being the case, the original contract need not be performed. It is clear that where parties to a contract agree to substitute a completely different contract for the first, or to rescind a contract, the performance under the original contract and/or rescinded contract comes to an end. When parties to a contract "alter" a contract, the ciuestion that has to be answered is as to whether the original contract is altered in such a manner that performance under it is at an end. [Paras 29, 31-~3) [55-D-G; 56-C-E] 2.3 In order that a contract that is altered in material particulars fall under Section 62, it must be clear that the alteration must go to the very root of the original contract and change its essential character, so that the modified contract must be read as doing away with the original contract. On the other hand, Section 63 of the Contract Act would clearly apply to the facts of the present case. Illustration "c" to Section 63 is apposite. The said illustration makes it clear that a promisee may accept satisfaction from a third party which then discharges the promisor from further performance of the original contract. [Paras 35-37) [57-E, F-C, HJ E 2.4 In the present case the original contract was performed only by one party to the contract and not by the other, the second agreement was entered into so that the promisee (i.e. the appellant herein) may accept, instead of the original performance of the agreement, any satisfaction which it thinks fit. Thus, the agreement deals with one leg of the original transaction, the leg of payment which has not yet been made while keeping the original transa.ction alive. The other clauses of the agreement buttress this conclusion. Under clause 4, the ship owner would not sell the vessel prior to the satisfaction of the aforesaid claim. And, above all, under clause (6), if for any reason the said payment is not made, the appellant would be entitled to take all appropriate legal steps, which included arrest of the vessel, for recovery of the said amount. Even by clause (8), the original agreement was kept alive. In the event that the ship was unable to proceed to Bangkok, the appellant maintained its rights of recovery against the shipowner and the vessel. If the original agreement had H
CHRISOMAR CORPORATION v. MJR STEELS PRIVATE . 23 LIMITED & ANR.
disappeared by novatio, there was no question of taking A appropriate steps to arrest the vessel which was owned by the ship owner who was the promisee and who had not yet performed his part of the contract. A guarantee clause contained in clauses 7 an.d 8 was again only an additional string to the bow of payment.· The fact that exclusive jurisdiction was given to the courts at B Piraeus, Greece has to be read with clause 6 of the agreement. Obviously, arrest of the vessel for recovering the af(lresaid amount in case payment was not made could be at any port, and not merely at Piraeus. For all these reasons, the aforesaid agreement read as a whole does not amount to a novatio of the original agreement, but was in fact entered into keeping the C· original agreement alive in order to ensure that payment under the original agreement was made to the appellants. In fact, the agreement dated 18.1.2000 was not a settlement of the original claim at a lesser amount. It was only a means of enforcing the payment leg of the original transaction through a thifd party 0 charterer. Consequent upon the vessel not sailing to Bangkok or the third party charterer failing to make payment, the original obligation of the appellant continued, and was enforceable by the arrest of the vessel. (Para 40] [59-C-H; 60-A-B] 2.5 It is settled law that an agreement such as the agreement dated 18.1.2000 is not to be construed legalistically E but is to be construed as ordinary businessmen would construe it. Reading the agreement through the prism of a businessman's eye, it is clear that all that the agreement does is to reinforce the original agreement by seeing that the payment under the said agreement is made. Therefore, the view taken by the Division F a Bench that there is novatio of the original agreement in the fact circumstance of the present case is not acceptable. It is important to remember that when Section 63 of the Contract Act is to be applied, the High Courts in India have cautioned that, being a wide departure from English law, the Section alone should be enforced according to its terms and not in accordance with English G law. (Paras 40, 42 and 44] (60-B; 61-D; 62-A-B) Satya Jain and Others v. Anis Ahmed Rushdie and others (2013) 8 SCC 131 : [2013) 3 SCR 319 - relied on. New Standard Bank, Ltd. v. Probodh Chandra H
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A Chakravarty AIR 1942 Cal 87; Anandram Mangturam v. Bholaram Tanumal AIR 1946 Born 1 - approved. Hi/las v. Arcos [1932) All ER 494 - referred to.
3. Even if the passage in Halsbury, cited by respondents, is to be applied, it is obvious that the settlement terms spoken of B must be made for good consideration, which is absent under Section 63. Also, for such settlement to constitute a new and independent agreement, it must put an end to the proceeding which is thereby spent and exhausted; and it is for this reason that the original cause of action is superseded altogether. On c the facts of the present case by the order dated 25.1.2000, the application in Suit No.1 of 2000 alone was dismissed for non- prosecution, only interim orders were vacated and it was stated that "the vessel shall cease to be under arrest as of now." It is clear, therefore, that in accordance with the agreement dated 18.1.2000, the proceedings were riot put an end to. Neither was D the original cause of action superseded. The moment there is a breach of the settlement agreement, the appellants would be entitled to take appropriate legal steps against the ship owner, including the arrest of the vessel, which can only be if the original contract still subs.ists. [Para 46) [62-G-H; 63-A-B]
E 4. On the facts of the present case, the very sum due under the original contract continued to be due and payable under the settlement agreement. The fact that interest and legal costs were added would not amount in itself to superseding the original contract, as these relate to payments under the original contract F and put the promisee in the same position as if the contract had originally been performed. The original agreement was also not superseded but was only sought to be enforced, the manner of performance being different. This being the case, the High Court's conclusion that there was a novatio of the original agreement on the facts of the present case is incorrect. [Para 50) [64-B-D) G 5.1 Whether, on the date of arrest i.e. 2.5.2000, respondent no. l happened to be the owner of the vessel, as was found by the impugned judgment. The High Court strongly relied upon an oral admission of PWl to the effect that respondent no.1 had become the owner of the vessel sometime in April 2000. On H
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LIMITED & ANR.
going through the deposition of Mr. Stephen Livanos, it is clear A that no such admission was ever made. The answers to questions 257 to 262 would clearly show that the witness's statement that respondent no.I was the end buyer of the vessel was equivocal at best, and was obviously hearsay as the answer to question 260 states that a lawyer in Greece had at some point of time told Mr. B Livanos what happened with the vessel. To therefore conclude from this oral evidence that the vessel had changed hands in April, 2000 does not take the respondent's case very far. However, the High Court also relied upon a notarized bill of sale dated 14.4.2000, the notice of readiness of 15.4.2000, which was accepted by the respondent at 11.00 A.M, and was followed by the delivery of possession of the vessel at 2.00 P.M. What is important to note is that the signatory to the physical delivery certificate was on behalf of Pennon Shipping Corporation, which was only an agent of Third Element Enterprises, and not an agent of Fairsteel. The High Court then went on to state that payment under the Letter of Credit was also made on 26.4.2000 and since this would show that the property in the vessel was transferred in April, 2000, no cause of action would survive against the new O'\Yner of the vessel namely respondent no.I. The High Court also went on to state that the transfers pleaded in the written statement of respondent no.I, namely from Third Element E Enterprises to Eastern Wealth Investment Limited and thereafter to Fairsteel Corporation Limited after which Fairsteel sold and transferred the vessel to respondent no.I, had not been proved by respondent no.I, but that this did not affect the respondent's c.ase. A bill of sale dated 27.4.2000 has been shown by which Third Element Enterprises effected the first of these four sales to Eastern Wealth Investment Limited, only on 27.4.2000. This sale has for its consideration "one US Dollar and/or other valuable consideration" casting grave doubts about its efficacy in law. Be . that as it may, since this sale is the first sale in the chain of sales made ultimately to respondent no.I, it is obvious that the sale made by Fairsteelto respondent no.I could only have been after this date. It is necessary to prove and explain each back to back sale from which respondent no.I ultimately derives its title, in accordance with its pleading in the written statement filed by it. As has correctly been held by the High Court, there is no proof H
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A of any of these back to back sales, and in point of fact the very first sale from the original owner has taken place in favour of Eastern Wealth after the High Court has found that the vessel has been sold by Fairsteel to respondent no.1, which goes contrary to the pleaded case of respondent no.1 itself. [Paras 52-54) [64-. B D-F; 65-A-F] 5.2 With regard to the High Court finding that full payment had been made under the Letter of Credit on 26.4.2000, the respondent's own suit that was filed by it against Fairsteel on 9.5.2000 shows that no such payment had been made by the date of the filing of the said suit. Thus, it is clear that the High Court was not correct in its view that it was proved by respondent no.1 that sale had taken place in April, 2000 by Fairsteel Corporation to respondent no.1 by which respondent no.1 became the owner of the vessel. It is clear, therefore, that respondent no. 1 has failed to prove that there was a change of ownership of the vessel in its favour on the date of arrest i.e. on 2.5.2000. [Paras 55, 57) (66-C; 67-A-Bl The Di/mun Fu/mar (Decision of Singapore High Court) (2003) SGHC 270 - distinguished. Saba International Shipping and Project Investment E Private Limited v. Owners and parties interested in the Vessel M V. Brave Eagle, previously known as M V. Lima-I and Others (Decision of Calcutta High Court) (2002) 2 CHN 280; Juggilal Kamlapat v. N. V. Internationale Crediet-En-Handels Vereeninging 'Rotter-dam', AIR 1955 Cal 65- approved. F Epoch Enterrepots v. M V. Won Fu (2003) 1 SCC 305 : (2002) 3 Suppl. SCR 507 ; M V. Al Quamar v. Tsavliris Salvage (International) Ltd. and Others (2000) 8 SCC 278 : (2000) 2 Suppl. SCR 440 ; Chand Godha v. Mir Nawab Himayatalikhan Azamjah, (1963) 2 SCR 168 - G relied on. The Bold Buccleugh (1852) 7 Moo PCC 267 - referred to. Roscoe s Admiralty Practice, 51h Edn. at Page 14 - referred to. H
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LIMITED & ANR.
Case Law Reference A [1992) 1 SCR 1003 relied on Para 17 [2002) 3 Suppl. SCR 507 relied on Para 17 [2000) 2 Suppl. SCR 440 relied on Para 17 (1993) 2 CHN 208 approved Para 19 (2002) ·2 CHN 280 approved Para 20 B . [1976) 1 SCR 847 referred to Para26 AIR 1955 Cal 65 approved Para 34 [1963) 2 SCR 168 . relied on Para 38 [2013) 3 SCR 319 relied on Para 41 AIR 1942 Cal 87 approved Para 44 AIR 1946 Born 1 approved Para45 c CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1930 of2008. From the Judgment and Order dated 13 .09 .2006 of the High Court at Calcutta in APD No. 244 of2005 arising out of Admiralty Suit No. 1 of2000. D Shyam Divan, Sr. Adv., Shatadru Chakraborty, Ms. Surbhi Anand, Ms. Harshita Verma, Ms. Sonia Dube (for Mis. Victor Moses & Associates), Advs. for the Appellant. Ratnanko Banerji, Sr. Adv., Amitava Majumdar, Ms. Damayanti, Sen, Siddhartha Dave, Ms. Jemtiben A. 0, Senthil Jagadeesan, Ashok E Mathur, Ad vs. for the Respondents.
Judgment
The Judgment of the Court was delivered by R. F. NARIMAN, J. 1. The present appeal raises several interestfug questions which arise in admiralty law. The vessel, M.V; Nikolaos-S, was owned by one Third Element Enteiprises, a Cyprus F company, and was flying the flag ofthe Republic of Cyprus. The plaintiff in the admiralty suit, who is the appellant before us, supplied bunkers and other necessaries to the said vessel at the port of Durban on terms and conditions agreed between the parties in November, 1999. According to the plaintiff, the bunkers were received by the master of the vessel G and services were rendered to the vessel as acknowledged by the master. The plaintiff raised invoices on 26.11.1999 for US$ 94,611.25 which have not yet been paid.
2. When the vessel docked in the port ofHaldia, the plaintiff filed admiralty suit No.1 of 2000 in the Calcutta High Court praying for an H
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A arrest of the vessel because, according to the plaintiff, the necessaries supplied to the vessel would not only amount to a maritime claim but would also be a maritime lien on the vessel. By an order dated 6.1.2000, the vessel was so arrested but nobody came forward for release of the vessel at that point of time. It is only on 25.1.2000 that learned counsel B appearing on behalf of the plaintiff approached the learned admiralty Judge expressing the plaintiff's intention not to proceed with the application for arrest as, according to him, the parties had reached an out ofcourt settlement. The order passed on 25.1.2000 reads as follows:- "The Court by an order dated January 6, 2000 directed that the vessel known as M.V.Nikolaos - S was to be arrested. On the c returnable date no one appeared on behalf of the respondents. The directions for affidavits had been given on January l 0, 2000. Today when the matter was called on for hearing, counsel appearing for the petitioner submitted that an out of court settlement has been reached between the parties and the D petitioner was not inclined to proceed with the matter any further. For these reasons, this application is dismissed for non prosecution. All interim orders are vacated. The vessel shall cease to be under arrest as of now."
E 3. It is important at this stage to advert to the agreement that was entered into on 18.1.2000. Since both sides have argued extensively on the aforesaid agreement, it is necessary to set it out completely. The said agreement reads as follows:- "AGREEMENT GUARANTEE F In·Piraeus and at the offices of "LALLIS OUTSINOS ANAGNOSTOPOULOS" Lawyers Maritime Consultants of 100, Kololotroni Street, Piraeus, this Tuesday the 18'11 January 2000, by and between: A. CHRISOMAR CORPORATION, a company duly G established and operating under the laws of Liberia, maintaining an office in Greece (5 Solomou Str. Kifissia) (hereinafter called Chrisomar), duly represented, for the purpose of this agreement by its authorized lawyer Mr. Dimitrios Voutsinos, H
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LIMITED & ANR. [R. F. NARIMAN, J.]
B. THIRD ELEMENT ENTERPRISES LTD, a company duly established and operating under the laws of Cyprus (hereinafter called "THE SHIPOWNERS"), duly represented for the purpose of this agreement by the President of the Board of Directors, Mr. Sotirios Soulkas, who also declared that he has the necessary authorization and capacity to bind the company to this agreement by his sole signature. c. Sotirios Soukas, of 145 Filonos Str, Piraeus, the following were stated and agreed. WHEREAS c
Footnotes
2. Chrisomar has sold and delivered to the vessel in the port of Durban a certain quantity of bunkers, on or about 26th D November, 1999, Chrisomar has issued its invoice no. 99232/ 15.12.1999 for the amount ofUSD 94,611.25, payable on 261h November, 1999 (Copy of the invoice is attached herewith as app. I).
3. The owners have failed to pay the amount of the above E invoice by the 26 1h November 1999 and consequently, Chrisomar arrested the vessel in the port of Haldia, India for security of the above claim. THE PARTIES AGREE AS FOLLOWS F
1. The shipowners hereby confirm that they owe to Chrisomar USD 104,688.60, analysed as follows: USD 94,611.25 for the invoice amount + USD 2, 177.3 5 for interest accrued + USD 7,900.00 for legal costs.
2. The shipowners, through their President Mr. Sotirios Soukas, represent to Chrisomar that (a) their vessel is due to be G chartered out for a voyage from Bangkok, Thailand to ports of West Africa as against a freight of about USD 35. 00 per metric ton of cargo; (b) that if Chrisomar releases their vessel from the above arrest shall be able to proceed to H
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A Bangkok for loading and to perform the intended charter voyage; (c) that the shipowners as soon as their vessel is released from its arrest by Chrisomar shall include in their recap and charter party with the intended charterers of their vessel a clause that part of the freight amounting to USD 104,668.60 shall be paid directly by the charterers to B Chrisomar's bank account as follows: ANZ GRINDLAYS BANK 21,AktiMiaouli, 18535 Piraeus Swift: GRNDGRAA, c AIC No. 815142 USD 40632 In favour ofChrisomar Corp.
3. The above recap shall be faxed by the shipowners to Chrisomar one ( l) working day after its conclusion. D
4. The shipowners will not sell their vessel prior to the satisfaction ofChrisomar's above claim and shall provide Chrisomar with a report by fax of the movements of their vessel every five (5) days.
5. The above payment shall be made in full and final settlement E of Chrisomar's above claim per capital and costs.
6. If, for any reason the above amount is not paid to Chrisomar within ten ( l 0) working days after the ships sailing from the port of loading Bangkok or, the shipowners are in breach of any of the representations and obligations set out in paras F 2, 3 and 4 above then Chrisomar will be entitled to take all the appropriate legal steps including the arrest of the vessel for recovering the above amount or any higher one which they may be entitled to.
7. Sotirios Soukas hereby guarantees to Chrisomar and in G favour of the shipowner the due payment of the above amount, working the right of division and exclusion i.e. he adlnits that he will pay amounts due to Chrisomar without the latter having first to enforce its claim against the shipowners and their vessel. H
- ' CHRISOMAR CORPORATION v. MJR STEELS PRIVATE '31 LTh,1ITED & ANR. [R. F. NARIMAN, J.]
8. If the vessel is lost, for any reason or if the mortgagee bank or any other claimant arrests the vessel before reaching Bangkok and as a result, the shipowners are unable to proceed for loading to Bangkok, and thus execute the above stated charter voyage, the above obligations of the guarantor shall cease to exist but Chrisomar will maintain its rights of recovery only against the shipowners and the vessel but not against the guarantor.
9. This agreement is subject to Greek law and the exclusive jurisdiction of the Piraeus Courts."
4. It appears that nothing in the meanwhile happened. At no point c of time did the vessel sail for the port of Bangkok - it remained continuously in Haldia. It is only on 2.5.2000 that the vessel was re- arrested. The Court recorded that no payment had yet been made and that the claim of the plaintiff continued to remain unsatisfied. It is this re-arrest that is the bone of contention between the parties in the present matter. D
5. A written statement was filed on behalf ofrespondent no.1, MJR Steels, an Indian company who allegedly purchased the vessel from one Fairsteel Corporation, Singapore. Apparently, an agreement was entered into between Fairsteel and respondent no.1 on 21.1.2000. The written statement filed by respondent no. 1 alleged: · E "The said vessel was originally owned by The Third Element Enterprises Shipping Ltd. Third Element Enterprises Shipping Ltd. sold and transferred the said vessel to. Eastern Wealth Investment Ltd. Eastern Wealth Investment Ltd. sold and transferred the said vessel to Fairsteel Corporation. Fairsteel F Corporation sold and transferred the said vessel to this defendant. This defendant acquired the right, title or interest in respect of the said vessel from the said Fairsteel Corporation."
6. The learned single Judge by his judgment and order dated 28.4.2005 listed as many as seven issm;s and adverted to the fact that G three witnesses were called on behalf of the plaintiffs, who not only deposed and were cross-examined, but also produced various documents. The defendants, however, did not produce any witness but tendered as their evidence six exhibits which were produced only through the plaintiff's witnesses. H
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A 7. According to the learned single Judge, the order of 25 .1.2000 made it clear that suit No. l of 2000 was kept alive and remained alive on the date of the re-arrest, namely, 2.5.2000. All that was done by the order dated 2.5.2000 was to recall the order dated 25.1.2000, and when that was done, the original order of arrest was automatically revived. This being the case, it is clear that the plaintiffs were entitled to recover their dues. The learned single Judge further went on to hold that respondent no.l's claim that ownership had changed and that they had become owners of the vessel in April, 2000, was not conclusively proved. The single Judge referred, among other documents, to a suit filed by respondent no.l against Fairsteel Corporation on 9.5.2000 in which respondent no. I prayed for a decree for rescission of the agreement for sale dated 21.1.2000, as also for cancellation of the said agreement, and perpetual injunction restraining Fairsteel from claiming any money under the Letter of Credit furnished by respondent no. l. It recorded that the said suit was dismissed for non-prosecution on 12.10.2004, and from the averments made in the said suit, it was clear that there was no concluded sale in favour of respondent no. I.
8. An app~l to the Division Bench by respondent no. I however succeeded. By the impugned judgment dated 13. 9.2006, it was held that the plaintiff's first witness admitted the fact that the vessel's ownership changed hands and that on the date of re-arrest, i.e. 2.5 .2000, it was respondent no.1 who was the owner. It also examined various documents to arrive at the conclusion that the vessel physically changed hands on 15 .4.2000 and payments under the Letter of Credit were made pursuant to the agreement dated 21.1.2000 on 26.4.2000. The Division Bench further went on to hold that though the allegation as regards the successive transfers of title had not been proved by the defendant, the said fact would make no difference. It also went on to hold that there could be a good title by estoppel. The Division Bench further went on to apply Section 62 of the Indian Contract Act, 1872 to the out of court settlement dated 18.1.2000 and stated that as there was a novatio of the original agreement in law, the original cause of action pleaded in admiralty Suit G No. l of2000 no longer subsisted. Therefore, the claim made in the suit was held to have been abandoned when the settlement dated 18.1.2000 was acted upon.· In this view of the case, the Division Bench reversed the single Judge's decision and held that the suit was liable to be dismissed on all these grounds. H
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LIMITED & ANR. [R. F. NARIMAN, J.] - ,.,_' ..
9. Shri Shyam Divan, learned senior counsel appearing on behalf A of the appellants, has argued before us that the agreement dated 18.1.2000 would not amount to a novatio of the original agreement. According to him, the original agreement continued and was in fact enforced by the second order of arrest dated 2.5.2000. According to him, the right that was vested in the appellant on 5.1.2000, i.e. the date of the institution o'f B the suit, is alone material, and it is on that date, and not the date of arrest on 2.5.2000, that th~ ownership of the vessel has to be seen. For this purpose, he cited certain English precedents. He also cited an American judgment to buttress his submission that the present was a case not merely of a maritime claim but also of a maritime lien in that necessaries supplied to the vessel would amount to a maritime lien. According to C him, in any event, on facts, the Division Bench was completely wrong in arriving at a conclusion that there was a concluded sale in April, 2000 in favour of respondent no.1 inasmuch as several documents produced by the plaintiff's witnesses would show that no such sale had, in fact,. taken place. D 10.. Shrl Banerjee, learned senior counsel appearing on behalf of the respondents, has countered each of these submissions. According to Shri Banerjee, the Division Bench is absolutely correct. The present is the case of enforcement of a maritime claim, but there is no maritime lien in law for necessaries supplied to the vessel. This being the case, it is important to know who the owner of the vessel is on the date of E arrest, i.e. on 2.5.2000. If the owner is respondent no. l; then a claim for necessaries against the original owner, Third Element, on the date of institution ofthe suit would not lie against the respondent on the date of . arrest. According to learned counsel, English authorities cited by Shri Divan would not apply to the present case as in England there is a F completely different procedure for arresting a vessel. A writ of summons ,··.· is issued under Order 53 of the U.K. Civil Procedure Code for service outside the jurisdiction of the court which is kept alive for a period of six months. Further, according to learned counse~ Section 62 of the Contract Act is squarely attracted inasmuch as the settlement dated 18.1.2000 completely replaced the original agreement as a result of which the G original cause of action pleaded in the suit has disappeared. Le.arned counsel also painstakingly took us through various documents to show that the sale of the ve_ssel to respondent no. l had indeed taken place in April, 2000 and that, therefore, on the date ofarrest, i.e. 2.5.2000, since H
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A his client was the owner of the vessel, the amounts could not be recovered from respondent no.1.
11. Admiralty law in England, as was held by Lord Halsbury in Currie v. M'Knight 1897 AC 97, is derived from the laws of Oleron 1 and other ancient maritime codes like the Rhodian Sea Law, the Basil ika, B the Assizes of Jernsalem, the Baltic Laws ofWisbuy and the Hanseatic Code. In England, the common law courts could not give effective redress to cases which arose in admiralty, which were then left to the jurisdiction of specialist admiralty Judges. By the l81h Century, the admiralty jurisdiction had fallen into "a feeble and neglected condition, and for long its proceedings excited no attention" 2• The Admiralty Court Act, 1840 C was the first of a series of statutes extending and defining the jurisdiction of the High Court of Admiralty in England. This was followed by the 1861 Admiralty Court Act and various subsequent enactments which were consolidated by the Supreme Court of Judicature (Consolidation) Act, 1925. By the Administration of Justice Act of 1956, the admiralty D jurisdiction of the High Court was further widened and the Supreme Court Act of 1981 now defines what the admiralty jurisdiction of the High Court in England is. 12.Insofar as our iaw is concerned, the admiralty law of the chartered High Courts has historically been traced to the charters of E 1774 and 1798 as subsequently extended and clarified by the Letters Patents of 1823, 1862 and 1865. The Admiralty Court Act, 1840 and 1861, and the Colonial Courts ofAdmiralty Act, 1890 and 1891 essentially stated what the admiralty law in this country is, and these enactments continued as existing laws under Article 372 of the Constitution oflndia. Some of the relevant provisions of these Acts are set out hereinbelow:- F "Admiralty Court Act, 1840
6. The court in certain cases may adjudicate, etc.-The High Court of Admiralty shall have jurisdiction to decide all claims ' The rolls ofOleron are associated with the island ofOleron, off the coast of Western G France, which was the site of an ancient maritime court associated with a seaman's guild of the Atlantic. In England, they were promulgated by Eleanor of Aquitaine, wifo of Henry 11, as vice-regent for her son King Richard I, while the latter was fighting the Saracens on the Third Crusade. King Henry VIII later published these rolls as, "The judgment of the sea, of Masters, of Mariners and Merchants, and all their doings". They are expressly included in the compilation of English admiralty law, the "Black Book of the Admiralty". H 2 See, Roscoe's Admiralty Practice, 5" edn. at Pg. 14.
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LIMITED & ANR. [R. F. NARIMAN, J.]
and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or seagoing vessel or in the nature of towage, or for necessaries supplied to any foreign ship or seagoing vessel, and to enforce the payment · thereof, whether such ship or vessel may have been within the body of a country, or upon the high seas, at the time when the services were rend\:red or damage received, or necessaries furnished, in respect of which such claim is made. Admiralty Court Act, 1861
5. As to claims/or necessaries.-The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part-owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recover twenty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court. Colonial Courts of Admiralty Act, 1890 E 2·. Colonial Courts ofAdmiralty.-(!) Every court of law in a British possession, which is for the time being declared in pursuance of this Act to be a Court ofAdmiralty, or which, if no such declaration is in force in the possession, has there.in original unlimited civil jurisdiction, shall be a Court ofAdmiralty, with the F jurisdiction in this Act mentioned, and may for the purpose of that juri~diction, exercise all the powers which it poss·esses for the purpose of its other civil jurisdiction and such Court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty.... G (2) The jurisdiction of a Colonial Court ofAdmiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise and the Colonial Court ofAdmiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in H
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A England, and shall have the same regard as that Court to international law and the comity of nations. . P'
Colonial Courts of Admiralty (India) Act, 1891
2. Appointment of Colonial Courts of Admiralty.-The following courts ofunlimited civil jurisdiction are hereby declared ir to be Colonial Courts ofAdmiralty, namely: (J) the High Court of Jtidicature at Fort William in Bengal, (2) the High Court of Judicature at Madras, and ''J:
(3) the High Court of Jtidicature at Bombay." C . · · 13. The Republic of Indi~ hiis finally woken up to the need for up'Clating its admiralty law. TheAdtUrralty (Jurisdiction and Settlement of · Maritime Claims) Act, 2017 has been made by Parliament and has · re~~ived the assent of the President' on 9.8.2017, though it has not yet j}~en brought into force. In this· Act, "maritime claim" is defined in ,. D ·• .S¢cticin 2( I )(f) as being a claim referred to in Section 4 and a "maritime · · lien'' is defined in sub-section (g) of2(1) as follows:
._. · J'2. Definitions . . . .... ···. : , >(l)In this Act,__:_ ' \
· ·;: 0. " (g) "maritime lien" means a· maritime claim against the owner, · ·· · , , ·,demise charterer, manager or operator of the vessel referred to ·.•· iil clauses (a) to (e) ofsub~se.ction (I) of section 9, which shall . . cdntinue to exist under sub-s~c~icin (2) of that section;" Se~ti~ri4·r~ads ~s follows: . ·.: :· · '·. ·. "4.M,aritime Claim ·.,, . .;. i(t)The High Court mayex~tcise jurisdiction to hear and a detertr1ine any question on rnaiitime claim, against any vessel, . arising out ofany- . .. . (a) dI~puti: regarding the poss~ssion or ownership of a vessel or the ownership of any share therein; . (bf dispute between the c~~.owners ofa vessel as to the · employmenfor.earnings of the vessel; .. (c) mortg~ge or acharge of the sa~e nature on a vessel; (d) loss or damage caused by the operation of a vessel; H
'? <]!-WSO.M/..R CORPORATION,v. fyt'~(STE;ELS PJlNATE 37 ' LIMITED & ANR. [R, F. NARI.MAN, J.] .. ....... ,.: ---- :• . -
, (e) loss oflife or personal injury occiirring whetheron land or on A water, in direct connection with the operation of a vessel; (t) loss or damage to or in connection with any goods; .. ... (g) agreement relating to the carriage of goods or passengers on . .' . , . board a vessel, whether contained in a charter party or otherwise; ' B (h) agreement relating to the use or hire of the vessel, whether contained in a charter party or otherwise; · (i) salvage services, including, ifapp!icable, sp~bial compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment; c . ~t: (j)towage; f'.... -.'1 ; (kl pilotage;. • ' 1 · (1) .goods, materials, perishable cir non-perishable provisions1·.. bunker fuel, equipment (including containers), supplied or services.-· D rendered to the vessel fo'r its operation, management, preservation or maintenance including any fee payable or leviable; (m) construction, reconstruction, repair, converting or equipping of the vessel; ,.,,, · (n) dues in connection with any port, harbour, canal, dock orlight E •.1J> · tolls, other tolls, Waterway or any charges of similar kind 1;,,,;, chargeable under any law for the tinie being in force; (o) claim by a master or member of the crew of a vessel or their heirs and dependents for wages or any sum due out of wages or adjudged to be due which may be recoverable as wages or cost F ., .-fl .. . ofrepatriation or social insurance contribution payable on their lJ : . . . . . ' • - .
. . . . behal( or. any amount .. ·'.. ·f-':",'''' __ .· '"·,~·~..-,,,,,::.,,:10.>.·..,~.,- an employer .··."'•, ., is under' an obligation .,.,_'•:··_.~ :i.·:·.·i._.~,- ... . '' to pay > •..• ·;,·::to~ perso11 as an emplciyee, whether the obligation arose out of ' . ' a: ~cmtract .(;f employment or by operation of a law (including '' '' ' operation of a law ofany countl'Y) for the time being in force, and includes any claim arising under a manning and crew G :; 1 · · • agreement relating to a vessel, notwithstanding anything contained in the provisions ofsections 150 and 151 of the Merchant Shipping Act, 1958; (p) disbursements incurred on behalfof the vessel or its owners; H
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A (q) particular average or general average; (r) dispute arising out of a contract for the sale of the vessel; (s) insurance premium (including mutual insurance calls) in respect of the vessel, payable by or on behalf of the vessel owners or demise charterers; B (t) commission, brokerage or agency fees payable in respect of the vessel by or on behalf of the vessel owner or demise charterer; (u) damage or threat of damage caused by the vessel to the environment, coastline or related interests; measures taken to c prevent, minimise, or remove such damage; compensation for such damage; costs of reasonable measures for the restoration of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; or any other damage, costs, or loss of a similar nature to those identified in this clause; D (v) costs or expenses relating to raising, removal, recovery, destruction or the rendering harmless of a vessel which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such vessel, and costs or expenses relating to the preservation of an abandoned vessel and maintenance of its E crew; and (w) maritime lien. Explanation.-For the purposes of clause (q), the expressions "particular average" and "general average" shall have the same meanings as assigned to them in sub-section (I) of section 64 F and sub-section (2) of section 66 respectively of the Marine Insurance Act, 1963. (2) While exercising jurisdiction under sub-section (I), the High Court may settle any account outstanding and unsettled between the parties in relation to a vessel, and direct that the vessel, or G any share thereof, shall be sold, or make such other order as it may think fit (3) Where the High Court orders any vessel to be sold, it may hear and determine any question arising as to the title to the proceeds of the sale. H
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LIMITED & ANR. [R. F. NARIMAN, J.]
(4) Any vessel ordered to be arrested or any proceeds of a vessel A on sale under this Act shall be held as security against any claim pending final outcome of the admiralty proceeding."
14. Under Section 5 of the Act, the High Court may order for the arrest of a vessel which is within its jilrisdiction for the· purpose of providing security against a maritime claim. Under Section 6 of the said B Act, the High Court may also exercise admiralty jurisdiction by an order . · in personam in respect of the maritime claims referred to in Section 4. Section 9 of the Act sets out the inter se priority of maritime liens, but in so doing also informs us that they are restricted to five subject matters only. Section 9 reads as follows: c "Sec. 9 Inter se priority on maritime lien ( 1) Every maritime lien shall have. the following order of inter se priority, namely:- (a) claims for wages and other sums due to the master, officers and other members of the vessel's complement in respect of D their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf; (b) claims in respect ofloss oflife or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel; E. _.(c) claims for reward for salvage services including special compensation relating thereto; (d) claims for port, canal, and other waterway dues and pilotage dues and any other statutory dues related to the vessel; F (e) claims based on tort arising out of loss or damage caused by the operation of the vessel other than loss or damage to cargo and containers carried on the vessel. (2) The maritime lien specified in sub-section (1) shall continue to exist on the vessel notwithstanding any change of ownership G or of registration or of flag and shall be extinguished after expiry of a period of one year unless, prior to the expiry of such period, the vessel has been arrested or seized and such arrest or seizure has led to a forced sale by th_e High Court:
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A Provided that for a claim under clause (a) of sub-section ( l ), the period shall be two years from the dat.e on which the wage, sum, cost of repatriation or social insurance contribution, falls due or becomes payable. (3) The maritime lien referred to in this section shall commenct}- B (a) in relation to the maritime lien under clause (a) of sub-section ( 1), upon the claimant's discharge from the vessel; (b) in relation to the maritime liens under clauses (b) to (e) of sub-section ( 1), when the claim arises, c and shall run continuously without any suspension or interruption: Provided that the period during which the vessel was under arrest or seizure shall be excluded. -(4) No maritime lien shall attach to a vessel to secure a claim which arises out of or results from- D (a) damage in connection with the carriage of oil or other hazardous or noxious substances by sea for which compensation is payable to the claimants pursuant to any law for the time being in force; (b) the radioactive properties or a combination of radioactive E properties with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or waste." IS.Section 12 states that the Code of Civil Procedure is to apply in all proceedings before the High Court insofar as it is not inconsistent or contrary to the provisions of the Act. By Section 17, the Admiralty F Court Acts of 1840 and 1861 and the Colonial Courts of Admiralty Acts of 1890 and 1891 stand repealed. Also, the Letters Patent of 1865, insofar as it applies to the admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts, also stands repealed.
16. An admiralty action in the courts of India commences against G a vessel to enforce what is called a "maritime claim". Though India is not a signatory to the Brussels Convention of 1952, a long list of maritime claims is given in Article 1 thereof. Suffice it to say that sub-clause (k) of Article 1 states that important materials wherever supplied to a ship for her operation or maintenance would fall within the definition of a H maritime claim. Amaritime lien, on the other hand, attaches to the property
CHRISOMAR CORPORATIQN.v. MJRSTEELS PRl\'A'.I'E. 41 LIMITED & ANR. [R. F. NARIMAN, J.] .· of the vessel whenever the cause of action arise~, ~nd travels with the A . vessel and subsists whenever and wherever the action may be commenced. In The Bold Buccleugh, (1852) 7 Moo PCC 267, Sir John Jervis defined maritime lien as follows:- > "[A) maritime lien is well defined ... to mean a claimorprivilege upon a thing to be carried into effect by legal process . . . that B prcicess to be a proceeding in rem .... This claim or privilege travels with the·thing into whosesoeverpossession it may come. It is inchoate from the rnoment the claim or privilege attaches, and, when carried into effect by legal process by a proceeding in. rem, relates ·back to the period when it first attached." c
17. This judgment was referred to in M. V. Elisabeth and others v. Harwan Investment and Trading Private Limited, 1993 Supp. (2) SCC 433 at 462, paragraph 56 and Epoch Enterrepots v. M.V. Won Fu (2003) l SCC305 at3ll,paragraph 13. lnM.V.AIQuamarv. Tsavliris Salvage (International) Ltd. and others, (2000) 8 SCC 278 at 301, the Supreme Court observed as follows:- D "33. Be it noted that there are two attributes to maritime lien: (a) a right to a part of the property in the res; and (b) a privileged claim upon a ship, aircraft or other maritime property in respect of services rendered to, or injury. caused by that property. Maritime lien thus attaches to the property in the event the cause E of action arises and remains attached. It is, however, inchoate and very little positive in value unless it is enforced by an action. It is a right which springs from general maritime law and is based· on the concept as if the ship itself has caused the harm, loss or damage to others or to their property and thus must itself1'1ake p good that loss. (See in this context Maritime Law byChristopher Hill,2rid Edn.)." . ..··:lg;' 'only a s~l1'ri~t;'~; ~f ~l~ihis give ris~ 't6 iri~rltime liens as ' .... ' was noted in M'.V. Won Fu (supra). Paragraph 19 of the saidjudgment states as follows:- G "19. We have in this judgment·hereinbefore dealt with the · attributes of maritime lien. But simply stated, maritime lien can be said to exist or restricted to in the event of (a) damage done by a ship; (b) salvage; (c),seamen's and master's wages; (d) master's disbursement; and (e) bottomry; and in the eyent a H
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