Patherya, J. - (1.) IN an admiralty suit for sums on account of damage and loss an interim application has been filed for arrest of vessel M.V. Devi Glory-1.
(2.) THE case of the petitioner is that its vessel M.V S.B Queen was anchored at Chittagong on and from 17th May, 2010 for discharging of cargo. Such discharge commenced from 19th May, 2010. On 29th May, 2010 vessel M.V. Devi Glory-1 collided with M.V. Cebu Star. THE chain of the said two vessels got entangled and hit M.V. S.B Queen. This resulted in damage to the vessel of the petitioner for which damage claim the admiralty suit has been filed and arrest is sought of the vessel M.V. Devi Glory-1. From the Radiolog of the Chittagong Port Authorities, it will be clear that the said two vessels had lost control of the engine and fallen on the petitioners vessel. THE statement of Chittagong Port Authorities on which the owners of the vessel seek to rely is dated 3rd November, 2010 whereas the Radiolog relied on by the petitioner is contemporaneous to the date of collision. On 2nd November, 2010 certain particulars were sought by the advocate of the owners and reply was given on the same day. THE said document lays emphasis on reporting of the incident to the principal officer and as no such report was made with the authorities concerned the claim of damages cannot be substantiated. THE said document is a suspect document and ought not to be relied upon. In fact on 15th June, 2010 intimation of damage along with the note of protest was forwarded to the principal officer, Mercantile Marine Department. The same was also received by the Authorities. From the statement of collision damage to the petitioners vessel by M.V. Devi Glory-1 approaching the vessel of the owners by dragging anchors is evident. This will also be evident from the note of protest of M.V. Cebu Star dated 30th May, 2010. At the time of survey the representative of the defendant was present. Therefore, the damage caused to the vessel of the plaintiff cannot be disputed. Accordingly, on the basis of the Arrest convention of 1952 the petitioner is entitled to confirmation of the order of arrest which has been passed on 14th September, 2010 and has been continued. Reliance is placed on AIR 1996 SC 516; AIR 1999 Cal. 64; 1912 Appeal Cases 634; (1955) 1 LLR 376 and 1892 Probate & Admiralty Cases 179. Even if exceptional precaution was taken to prevent dragging it was not possible to prevent dragging as the engines could not be started. By a letter dated 1st June, 2010 a request was made to provide tug boats to free the anchor and anchor chains from the propeller.
(3.) OPPOSING the said application the owners of vessel M.V. Devi Glory-1 submits that no case has been made out by the petitioner in its affidavit of arrest. The case made out is that the vessel M.V. Devi Glory-1 and M.V. Cebu Star were entangled with each other and the said two vessels approached the petitioners vessel at rapid speed. No specific case of the defendants vessel colliding with the petitioners vessel has been made out. Therefore, no case of damages caused to the defendants vessel has been prima facie made out to warrant of arrest. It is only on 5th July, 2010 the note of protest by the master was forwarded to the authorities. Two notes of protest were filed by the petitioners one exclusively against the defendants vessel and the second against both the vessels of the defendant and M.V. Cebu Star. The statement of facts which was forwarded on 5th July, 2010 defers from that which was submitted on 2nd June, 2010. No damage is evidenced in the statement dated 2nd June, 2010 and all tanks were found in normal condition. The reason for damage defers in the statements annexed to the notarised certificate dated 5th July, 2010 and the attested statement dated 2nd June, 2010. Under Section 415(1)(a) of the Merchant Shipping Ordinance, 1983 a shipping casualty is deemed to occur when a ship is materially damaged and notice in this regard is given to the principal officer. On receipt of such shipping casualty under Section 416 of the Merchant Shipping Ordnance, 1983 a preliminary enquiry is to be held with regard to the said casualty. In the instant case, there has been no compliance with Section 415(1)(a) or Section 416. Reliance is placed on 1871 LLyods Law Report 212. As anchorage in the Chittagong Port area is in loose soil, therefore, dragging of anchors when the wind is strong is normal. The existence of strong current and dragging of anchors will also be evident from the note of protest filed by M.V. Cebu Star. Nowhere has it been pleaded that it was not an inevitable accident. In fact the particulars of collision do not evidence the aforesaid. There was an omission on the part of the master to avoid collision and the collision occurred due to laches on the part of the master of the petitioners vessel. As held in AIR 1994 SC 853, as the owner has come to Court with unclean hands the order of arrest be vacated. In reply, counsel for the petitioner submits that siltation being the cause of dragging of anchor is not evidenced. On the principle that the petitioners engine ought to have been ready the defendants vessel also should have been operational.;