EASTERN STEAM NAVIGATION CO LTD Vs. INDIAN COASTAL NAVIGATION CO LTD

JUDGEMENT

(1.) This application raises an interesting question which has been, if I may say so respectfully, very ably argued on both sides. The applicants are the Indian Coastal Navigation Co. Ltd., the owners of a steamship called the Cossipore . On or about 10 May 1941, they let her on charter to the respondents, the Eastern Steam Navigation Co. Ltd. The charter party provided amongst other things that it was for twelve months of 30 days. Monthly rent was to be paid in advance and if not earned to be returned to the charterers. The charterers were under liability to make certain advances and it was provided that the Captain was to prosecute all voyages with utmost despatch and to render customary assistance with the ship's crew. There were provisions as to demurrage and so on, and it was provided that the steamer was not to be sent on any voyage in case of war before the owners should have been able to cover her full value against war risks and the premiums were to be refunded by the charterers to the owners. Any dispute "arising under" the charter was to be referred to arbitration.

(2.) Early in April 1942 the steamer was in Bombay and she would be, under the charter party, returnable about a month later to her owners in Calcutta. The respondent company was naturally desirous that she should make what was likely to be her last voyage under the charter party in freight, which would pay, rather than in ballast, and they had, apparently, got a cargo for her. But she never started on the voyage at any material time, because it seems, either the crew or the officers or both were unwilling to go to sea (for reasons which can easily be guessed), and subsequently her proceedings were interfered with by the Maritime Department. Whatever that may be, the exact reason for what happened will have to be determined hereafter. Suffice it for the moment to say that, as one might expect, disputes arose between her owners and the charterers, all through the unfortunate detention of the vessel at Bombay. At an early stage in the discussion the following telegram passed between the present applicants and the present respondents. It is dated 22 April, and was apparently received at Bombay on the 26th. Your telegram 21 we are not liable for what you say : we shall hold you liable under charter party till we get delivery from you in Calcutta. Stop. Vessel cannot be oft charter all this seems to be a conspiracy for off charter only. Stop. We are not responsible.

(3.) Reading that on its face and in the light of what had happened, it seems to me that the present applicants were alleging that the attitude of the master and crew of the vessel, who were, properly speaking, the servants of the applicants and were on loan with the vessel to the respondents, was due to a conspiracy between the respondents and the applicants servants (the crew and the master) with the object of getting the vessel off charter, so that the respondents would not have to pay rent for her or, having in fact paid rent in advance for the last month, which the charter party provided for, would be entitled to get it back. I have not the slightest idea and say nothing one way or other as to whether and if so to what extent that charge is well-founded. Without going into unnecessary detail, one finds on 22nd May, when the present applicants referred what they considered the matters in dispute to arbitration, their notice appointing an arbitrator addressed to the respondents, a copy of which was sent to a Captain Pringle the arbitrator they appointed, is headed as follows: Re : S.S. Cossipore, (1) Redelivery of the vessel at Calcutta as provided for in the charter party. (2) Deliberate detention of the vessel at Bombay up to date. (3) Alleged off hire and non-payment of war risk insurance, and (4) Damages for loss of time and freight since 4 May 1942.