- (1.) By this appeal the appellant has assailed judgment and order dated 24th June, 2010 by which the learned Trial Judge in Admiralty Action has disposed of the above mentioned applications. The first application being G.A. 38 of 2009 was taken out by the plaintiff/respondent for interlocutory order of arrest of the vessel and the second one was taken out by the appellant for dismissal of the aforesaid admiralty action, and/or rejection of the plaint and further refund of security furnished in the said suit and for other reliefs. The learned Trial Judge by the impugned order refused to dismiss the suit or to pass any order of rejection of plaint, on the contrary the order of arrest passed earlier has been made confirmed. Before we record contention and rival contention we feel it expedient to record short case made out by the plaintiff: The plaintiff had entered into an agreement with one M/s. Golden World Enterprises Limited of Hong Kong for sale of 28,000 metric tones of iron ore at a price of US $84 per metric ton free on board. The said buyer was to arrange for a vessel to carry the cargo at the port of Haldia. The plaintiff had made everything ready for loading of the said cargo on board the said vessels at the port and hence filed shipping bill for export of 16,500 metric tones of iron ores. It appears that the buyer had an arrangement with the voyage-charterer for carriage of the said cargo by the said vessel. In terms of this arrangement the plaintiff tendered the cargo to the vessels agents at the jetty in Haldia port and in fact loading of cargo commenced on 21st June, 2008. It is alleged by the plaintiff that the vessel's cranes were defective and as such loading of the said cargo could not be completed resulting in only 15 metric tones of the cargo could be loaded. It is further alleged by the plaintiff that the cranes did not have the capacity of lifting grabs with the cargo which was noticed by the Port Authorities and the Master of the vessels was issued a notice by the Port Authority on June 21, 2008. The loading could not be done in view of the fact that grabs of smaller size were made available by it but the vessel's cranes would still not lift the cargo following the second notice was issued by the Authorities on the following day. The plaintiff arranged for his survey to be conducted on the vessel's crane. The Surveyor's report to the effect that cranes were unable to lift as per the safe working load declared by the Master of the vessel's and recommended that the cranes should be repaired without delay. The Port Authorities also suspended loading operations of the vessels. The plaintiff claims that on June 24, 2008, the Master issued an electronic mail message indicating the vessel's readiness to resume loading operation. The owners of the vessels thereafter instructed the Master not to load any further cargo on the pretext that a charter party caused to be entered on behalf of the buyer had been terminated by the charterers Rainbow Sky Shipping Ltd. The voyage-charterer thereafter had served a notice of recording breach of obligation by not loading entire goods. At the time of filing of the suit on July 4, 2008 the plaintiff claimed that it had suffered loss and damages to the extent of Rs. 1,21,49,700/-. This claim was based on account of introduction of export duty by the Indian Government on iron ore and shipping charges. The said export duty would be around Rs. 89,39,700/-. Immediately after institution of suit the plaintiff filed an application for arrest on 4th July, 2008 upon notice to the time-charterer Caveator. At the time of hearing of the said application on 4th July, 2008 the Caveators duly appeared and made submission before the learned Single Judge. On considering the submissions of the plaintiff and the Caveator on 4th July, 2008, an order was passed arresting the said vessel. Thereafter the time-charterer applied on 8th July, 2008 for discharge of the order of arrest. On the said application on 8th July, 2008 an order was passed by the learned Trial Judge for release of the said vessels on furnishing security of 1 crore in cash. Thereafter the security was furnished in terms of the said order and the vessel sailed on July 13, 2008. After the said order dated 4th July, 2008 and 8th July, 2008 were passed and security having been furnished, the application being GA No. 1346 of 2009 had been filed.
(2.) Mr. Tilak Bose, learned senior Counsel appearing for the appellant while highlighting the ground made out in the petition before the learned Trial Judge contends that the suit cannot be maintained going by the statements and averments made in the plaint. There has been no privity of contract in so far as the vessel is concerned and can have no cause of action against the vessel. Admittedly, there is no contractual obligation though the plaintiff has averred that the representation of the Master gives rise to contractual obligation. This alleged representation of the Master intending to create contract does not constitute any cause of action under the law. The defendant/appellant who has provided security is admittedly time-charterer of the vessel who had a contractual obligation with one M/s. Rainbow Sky Shipping Limited the voyage charterer to provide the vessels. The voyage-charterer on the other hand had an obligation to the buyers, M/s. Golden World Enterprises Ltd. to provide the vessel. Even if it is assumed that the appellant has failed to provide the vessel as contracted for, it will only be breach of contract which was undertaken with the voyage-charterer or the buyers and there would be no privity of contract whatsoever with the plaintiff who is the seller. The goods have been sold on FOB basis which means the buyer has to nominate the vessel under the contract of sale. If there is any failure in nomination of the vessel, then it is a breach of contract of sale between the plaintiff seller and the buyer for which the plaintiff can sue the buyer for loss in the sale of goods but this will not give a claim to the plaintiff as against the vessel.
(3.) Mr. Bose relying on the decision of the Supreme Court in the case of Epoch Enterrepoty vs. M.V. Won Fu, 2003 1 SCC 305, submits that the plaintiff will not have cause of action against the vessel since there was no contract entered into between the plaintiff and the owner of the vessel nor any shipment had taken place. In the plaint there is no other case made out hence oral submissions that the case is based on Tort is also not entertainable.;