- (1.) The time-charterer of the vessel, who had furnished security to enable M.V. Eugenie to leave these shores, has applied for dismissal of the admiralty action on the principal ground that the plaintiff has no cause of action against the owners of the vessel and the plaint discloses none. Three ancillary grounds of challenge have also been maintained that need to be noticed after the basic facts are recorded.
(2.) The petitioning time-charterer, Vasteast International Pte Ltd of Singapore, entered into a voyage-charter with Rainbow Sky Shipping Ltd for carrying the voyage-charterer 's cargo of 26,000 mt of iron ore fines from either Haldia or Paradip to the discharge ports specified in the charterparty. The plaintiff had entered into an agreement with Golden World Enterprise Ltd of Hong Kong for sale of 28,000 mt of iron ore at a price of US $ 84 per mt free on board. The Hong Kong buyer of the plaintiff 's goods was to arrange for a vessel to receive the cargo at the port of Haldia. The plaintiff had the cargo documents processed and filed the shipping bill for export of 16,500 mt of iron ore fines to be loaded on the vessel. It appears that the buyer had an arrangement with the voyage-charterer for the buyer 's cargo to be taken on board the vessel.
(3.) It is the plaintiff 's case that it tendered the cargo to the vessel 's agents at the relevant jetty in Haldia port and loading commenced on June 21, 2008. The plaintiff 's affidavit of arrest claims that the vessel 's cranes were defective and unable to load the cargo resulting in only 15 mt of the cargo being taken on board. The application says that the vessel 's cranes were not capable of lifting the grabs with the cargo which was noticed by the port authorities and the master of the vessel was issued a notice by the port authorities on June 21, 2008. The plaintiff says that grabs of smaller size were made available by it but the vessel 's cranes could still not lift the cargo following which a second notice was issued by the port authorities on the following day. The plaintiff arranged for a survey to be conducted of the vessel 's cranes. The surveyor filed a report to the effect that the cranes were unable to lift as per the safe working load declared by the master of the vessel and recommended that the cranes be repaired with the delay therefor being to the account of the vessel. The port authorities also suspended loading operations on the vessel. The plaintiff claims that on June 24, 2008 the master issued an electronic mail message indicating the vessel 's readiness to resume loading operations on the basis of a revised stowage plan. The plaintiff asserts that it then suggested that the vessel choose another berth where shore cranes could supplement the vessel 's cranes and aid in the loading process. Such suggestion was apparently made by the plaintiff on June 25, 2008. It is the plaintiff 's version that the owners of the vessel thereafter instructed the master to not load any further cargo as the voyage-charter entered into by Rainbow at the behest of the buyer had apparently been terminated by the voyage-charterer. The documents that are on record reveal that the voyagecharterer had put the petitioning time-charterer on notice of breach on June 21, 2008 since the vessel 's cranes were unable to perform as per their declared capacity. The notice signed off with the assertion that the voyage-charter stood determined. It does not appear that the termination was immediately accepted by the time-charterer whereupon the voyage-charterer urged the master to repair the cranes following which on June 24, 2008 the master prepared a revised stowage plan and made it available to the plaintiff through the vessel 's local agents. At the time that the admiralty action was instituted on July 4, 2008, the plaintiff claimed that it had suffered loss and damage to the extent of Rs.1,21,49,700/-. The primary basis of the claim was on account of the introduction of export duty by the Indian government on iron ore and shipping charges. The plaintiff claimed that it would incur a liability of Rs.89,39,700/- on account of the export duty.;