HRC Shipping Ltd. Vs. MV Lady Fatima and others, 2009, 38 CLC (AD)

Wednesday, 18 November 2009 13:03

Written by Md. Ershadul Karim

Supreme Court

Appellate Division

(Civil)

Present:

Md. Fazlul Karim J

Md. Joynul Abedin J

SAN Mominur Rahman J

HRC Shipping Ltd.....................................Petitioner

Vs.

MV Lady Fatima and others....................Respondents

Judgment

March 9, 2009.

Lawyers Involved:

AJ Mohammad Ali, Senior Advocate with Syed Mahmudul Ahsan, instructed by A.K.M Shahidul Huq, Advocate-on-Record—For the Petitioner.

M Hafizullah, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For Respondent Nos.1-2 and 25.

Dr. M Zahir, Senior Advocate instructed by Syed Mahbubur Rahman, Advocate-on-Record—For Respondent No. 5.

None represented—Respondent Nos. 3, 4 and 6-19.

Civil Petition for Leave to Appeal No.1368 of 2007.

(From the judgment and order dated the 14th day of August, 2007 passed by the High Court Division in Admiralty Suit No.11 of 2007)

Judgment

Md. Fazlul Karim J.- This Petition for Leave to Appeal is directed against the judgment and order dated 14-8-2007 passed by the High Court Division in Admiralty Suit No, 11 of 2007 allowing application for vacating the order of arrest of the vessels 'MV Dali' and 'MV Lady Fatima' dated 10-7-2007 passed by the High Court Division and for release of the vessels 'MV Dali' and 'MV Lady Fatima'.

2. The facts of the case, in short, are that the petitioner as the plaintiff filed an application for arrest of 'MV Lady Fatima' and 'MV Dali' berthed at Chittagong Port, Chittagong before the High Court Division contending that the plaintiff is a company incorporated in Bangladesh under the Companies Act, 1994 and is the owner of a number of seagoing vessels and carriers carrying on business as carrier of goods in containers by sea including laden and empty containers and also acts as a feeder operator. The defendant Nos.1 and 2 are 'MV Lady Fatima' and 'MV Dali' berthed at Chittagong Port, Chittagong represented by the deponent owner, the defendant No.5, having office in Singapore and represented in Bangladesh through their agent above named. The defendant Nos. 3 and 4 are the Masters of the vessels 'MV Lady Fatima' and 'MV Dali' berthed at Chittagong Port, Chittagong. The defendant No.6 is the despondent owner of the vessels 'MV Jaami' V-731 which was grounded at Colombo Port on 26-12-2004 laden with the cargo of the plaintiff represented in Bangladesh by the declared local agent Messrs Everest Shipping Agencies Limited, 58, Agrabad CA Chittagong. The defendant No. 7 is the owner of the vessels 'MV Jaami' V-731 which was grounded at Colombo Port on 26-12-2004 laden with the cargo of the plaintiff. The defendant Nos. 8-14 are the Main Line Operators on whose behalf the plaintiff has loaded the cargo on board the vessels 'MV Jaami' V-731 which was grounded at Colombo Port on 26-12-2004 laden with the cargo of the plaintiff. The defendant No. 15 is the owner of and the party interested in 'MV Dali' and 'MV Lady Fatima' now both berthed at Chittagong. The pro-forma defendant Nos. 16 to 19 has been impleaded in the suit to give effect to the order of the Court from time to time in connection with the suit. The plaintiff during the course of business entered into a purported slot charter agreement with the defendant No.5 on 24-2-2004 whereby it was agreed that each party's containers would be carried, both the empty and laden, on Chittagong-Colombo-Chittagong route per vessels as mentioned in the purported MoA and, according to the purported Memorandum of Agreement (MoA), each party would procure and maintain liability insurance for their respective vessel for delay, loss, damages for delay or miss delivery or non-delivery of cargo for which either party would be responsible with a 1st Class or reputed P & 1 Club. Both parties guaranteed to maintain such insurance coverage or a reputable P &1 club guarantee for the duration of the said agreement. The defendant No.5 did not obtain any liability insurance for the vessel 'MV Jaami' as stipulated under Clause 9 of the alleged slot charter party agreement and, as such, the defendant No.5 perpetrated blatant fraud on the plaintiff which made the alleged slot charter party agreement void ab initio. Furthermore, the vessel 'MV Jaami' was not in a seaworthy condition upon commencement of her voyage from Chittagong to Colombo as evidenced by the Survey Report No. CMB/ 90009 dated 8-2-2005 carried out by FE Hard-castle and Co Pte Ltd. Had the vessel 'MV Jaami' been seaworthy at the commencement of the said voyage from Chittagong there would not have been any possibility of damage to the containerised cargo even after she faced the Tsunami on 26-12-2004. The defendant No. 5 suppressed the fact of the unseaworthiness of the said vessel 'MV Jaami' deliberately and fraudulently when the parties entered into the alleged slot charter agreement. In course of the performance of the alleged slot charter party agreement the plaintiff shipped 53 containers laden with the cargo of the defendant Nos. 8-14, who are the main line operators. The plaintiff accordingly, received the cargo from the main line operators, the defendant Nos. 8-14, and shipped the 53 containers containing export cargo against the Sea Consortium Pte. Ltd Singapore, BL No. Jaami V-731 CCO1 dated 21-12-2004, upon payment of the freight on account of different main line operators, the defendant Nos. 8-14, onto 'MV Jaami' V-731 in the allotted slot to the plaintiff and the vessels sailed from Chittagong on 21-12-2004. The plaintiff also issued Bills of lading in favour of the main line operators the defendant Nos. 8-14, for delivery of the cargo loaded in 53 containers for discharge of the same at Colombo, Sri Lanka. The vessels 'MV Jaami' arrived off the Port of Colombo on 26-12-2004. During the vessel's approach near the entrance to the breakwater at approximately 9-55 AM on 26-12-2004, a sudden surge of water with strong turbulence and force entered the inner harbour from the direction of the sea as a result of the Tsunami. Consequently, the bow of the vessel hit the wall of the port control tower, resulting in considerable damage being caused to the vessel. The vessel's bulbous bow also hit the South Asia Gateway Terminal (SAGT) pier corner causing serious damage to bulbous bow and corner of the SAGT pier. The vessels then grounded in the inner harbour but within the limit of the port of Colombo. On or about 8-2-2005 the vessel was provided a safe berth to discharge its cargo.

3. The respondent Nos. 1, 2 and 15 purportedly filed an application for vacating the order of arrest of the vessels 'MV Dali' and 'MV Lady Fatima' dated 10-7-2007 passed by the High Court Division for releasing of the vessels 'MV Dali' and 'MV Lady Fatima'. The respondent No. 5 purportedly filed a written objection against the application for arrest of vessels 'MV Lady Fatima' and 'MV Dali'. The petitioner filed an affidavit-in-reply against the written objection on behalf of the respondent No. 5, company by its purported agent wherein it was stated that the affidavit has been affirmed purportedly by the Senior General Manager of Sea Consortium Limited, describing itself as the agent of the defendant No. 5. It appears that the said purported agent of the defendant No.5, company has failed to annex any written authority from its alleged principal as well as other material documents as prescribed by the Customs Act, Foreign Exchange Regulation Act and other relevant laws to prove the locus standi of the purported agent of the defendant No. 5, company. In the facts and circumstances as stated hereinabove the purported agent has no locus standi to affirm the affidavit on behalf of the respondent No. 5 company as its agent; hence the instant written objection purportedly filed on behalf of the defendant No. 5 is liable to be rejected in I inline. The petitioner filed written objection against the application for vacating the order of arrest of the vessels dated 10-7-2007 and for the release of the said vessels wherein it was stated that the release of the 'MV Dali' and 'MV Lady Fatima' is not at all maintainable and, as such, liable to be rejected summarily.

4. Mr. AJ Mohammad Ali, learned Counsel, appearing for the petitioner, submitted that the High Court Division erred in law and on facts in allowing the application made on behalf of the respondent Nos. 1, 2 and 15 for vacating the order of arrest of the said vessels and for the release of the said vessels; that the High Court Division on a misreading of the materials on record and the relevant provisions of law came to the finding that the purported agents of the'respondent Nos. 1, 2, 5 and 15 had the locus standi to represent the aforementioned respondent Nos. 1, 2, 5 and 15. The learned Counsel further submitted that the High Court Division on a misreading of the Order VII, rule 1, CPC came to the finding that the plaintiff was barred by estoppel from raising the issue of locus standi of the respondent Nos. 1, 2, 5 and 15 in view of the statements made in the cause title of the plaint in the Admiralty Suit No.11 of 1007.

5. It appears from the record that the High Court Division at the earlier instance of vacating the order of arrest in Admiralty Suit No.278 of 2005 had addressed some issues, it is the view of the High Court Division that issues in the facts and circumstances of the matter at hand substantiate the defendants' claim as to the error evident in the order of arrest dated 10-7-2007. It further appears that under the provisions in Article III, rule 6 of the schedule to the COGBSA that the carrier and the ship shall stand discharged from all liability in respect of loss or damage unless a suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered.

6. It appears from the impugned judgment and order that the suit is barred by limitation on assumption on consideration of the provision of Act IV, rule 2 of the schedule it was held on material that "Neither the carrier nor the ship shall be responsible for loss or damage causing or resulting from act of God." Reference in this regard may be made to the case of Nugunt vs Smith (1876), 1 CPD 423 wherein it was held that "loss arising from and occasioned by the agency of nature which cannot be guarded against by the ordinary exertions of human skill and prudence so as to prevent its effects" as well the provision of section 2 of the COGBSA that "subject to the provisions of this Act, the rules set out in the schedule shall have effect in relation to and in connection with carriage of goods by sea in ships carrying goods from any port in (Bangladesh) to any other port whether in or outside (Bangladesh)."

7. The High Court Division also considered the time within which the suit has to be properly filed with reference to Act II, rule 6 of the schedule to the COGBSA stating clearly that unless a suit is filed within one year after the delivery of the goods or the date when the goods should have been delivered, the carrier and the ship shall stand discharged from all liability in respect of loss or damage.

8. Accordingly, the High Court Division held that the order of arrest dated 10-7-2007 in respect of vessel 'MV Lady Fatima' and 'MV Dali' was not sustainable in law.

9. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioner.

Accordingly, the petition is dismissed.

Ed.

This Case is also Reported in: 14 BLC (AD) (2009)115.