- (1.) HEARD learned Counsel Shri Devang Nanavati appearing for the Plaintiff. Learned Advocate Shri Devang Nanavati referred to the papers for the background of the facts and the claim made by the Plaintiff as a Port for the purpose of maritime claim and other charges, including Cold Move charges, which resulted in some correspondence, to which the learned Counsel Shri Nanavati has referred. He pointedly referred to the fact that the charges, which the Respondent No.1 Foreign Vessel is under an obligation to pay to the Port Authorities, has not been paid on the ground, which are not allowed under the Merchant Shipping Act. He submitted and referred to the papers referring to CoU (Conditions of Use), which is a contract between the Vessel and the Plaintiff Port and he also referred to the Berthing Policy & Tariff Structure, produced on record and submitted that, as a policy, such charges are levied, which the visiting ship or the Foreign Vessel has to pay, cannot avoid any such payment. However, he pointedly referred to the correspondence and a letter / message produced on page 18 that the payment is avoided on the ground that they are not able to pay unless the bankers advance further loan. Similarly, he has also referred to another correspondence / e -mail, produced at page 24. Therefore, the issue is with regard to the reasonableness of the charges. Learned Counsel Shri Nanavati submitted that it is not open for the Defendant No.1 to raise any such contention, as in fact, they have accepted such charges. He referred to the communication at page 33 dated 20.06.2013, from the Defendant No.4, who is the agent of the Defendant Nos. 1 and 2 and pointedly emphasized:
(2.) ANY payments and dues that may arise after completion of discharge are to be recovered by you from the Owners directly. The ship is available as security for you to take action and to recover your dues.
(3.) LEARNED Counsel Shri Nanavati therefore submitted that it has been specifically stated by their own agent that the action, as may be deemed fit and proper, may be taken for recovery of the charges. Learned Counsel Shri Nanavati has also referred to the aspect with regard to the law application in India to a Foreign Vessel and submitted that the Merchant Shipping Act, 1958 read with the International Conventions made it clear that when the Vessel is within the Indian waters, the territorial jurisdiction will empower the courts in India (High Court). He referred to the judgment and order in case of Shipping Corporation of India Ltd. V. The Master of M V Giurgeni, 1997 2 GLR 1745 and also made the submissions referring to paragraph 13. Similarly, learned Counsel Shri Nanavati also referred to the judgment of the Hon Apex Court M.V.Elisabeth and Others v. Harwan Investment and Trading Pvt Ltd, 1993 Supp2 SCC 433 and referring to paragraph 89, he emphasized: All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law. The power to arrest a foreign vessel, while in the waters of a coastal State, in respect of a maritime claim, wherever arising, is a demonstrable manifestation and an essential attribute of territorial sovereignty.;