Appeal against Single Judge's order refusing to reject a civil plaint for recovery of bunker fuel dues. Court held this is a triable issue regarding cause of action and liability, not suitable for rejection stage. Appeal dismissed.
Appeal against order rejecting application to dismiss plaint dismissed. Suit remains for trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 03.09.2018
JUDGMENT PRONOUNCED ON : 24.10.2018
CORAM
THE HONOURABLE Mr.JUSTICE M.SATHYANARAYANAN and THE HONOURABLE Mr.JUSTICE N.SESHASAYEE
O.S.A.No.256 of 2016
Owners and Parties interested in the Vessel TINA, a vessel flying at Liberian flag together with Her hull, tackle engines, machinery, paraphernalia and all her appurtenant on board presently lying and being at Kamarajar Port Ltd., Ennore, Tamil Nadu, India Through its owner and all persons claiming to be interested in the Vessel and is represented by its Master
.. Appellant/Defendant Vs.
STX Corporation STX Namsan Tower 98, Huam-ro (Namdaemunnuo 5-ga), Jung-gu Seoul, Korea – 100 803 Represented by its Authorised Signatory Mr.S.Senthil .. Respondent/Plaintiff
Prayer : Original Side Appeal filed under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of the amended Letter Patent 1865, praying to set aside the order dated 04.10.2016 passed by the learned Judge in Appln.No.3024 of 2016 in C.S.No.133 of 2016 and the appeal be allowed.
JUDGMENT
[ Judgment of the Court delivered by N.SESHASAYEE, J.]
The order now under challenge is the one dated 04.10.2016 in A.No.3024 of 2016 in C.S.No.133 of 2016, by which the learned Single Judge had dismissed an application filed by the appellant/defendant for rejecting the plaint.
said Charter Party, in unambiguous terms has provided, that the Charterer (S.W.Shipping Company) was responsible for payment of bunker supplied to the Vessel. Therefore, the owner of the vessel cannot be held liable. Indeed, Vide its email dated 24.09.2015, the Charterers of the Vessel itself had intimated the defendant/owner of the Vessel about the physical supply of the bunker by the bunker supplier (the plaintiff). Therefore, the supply of bunker was contracted by the Charterer and bunker too was supplied only when the vessel was with the Charterer. Therefore, the owner of the ship cannot be fastened with any liability.
● Secondly, the nature of the claim is only a maritime claim and not a maritime lien. Therefore, the charterer of the vessel cannot bind the owner of the Vessel for the payment towards bunker supplied. Further, the mere signature of the captain of the ship in the bunker delivery receipt will not amount to an acknowledgment of liability but a mere acknowledgment of the fact that bunker has been supplied. Indeed, the plaintiff had issued a notice dated 30.11.2015 to the owner of the vessel and its Managers claiming the value of the bunker supply with interest, and Vide its reply dated 01.12.2015, the same was denied. This fact has been deliberately suppressed in the plaint.
These documents categorically indicate that the bunker was supplied by the respondent, when the vessel was under a charter party with the charterer, and in terms of the Charter party only the charterer is liable for the supply of fuel, and hence the claim is misaddressed and it ought to be made only to the charterer of the vessel. Necessarily, there is no cause of action against the appellant and the next logical step is to reject the plaint for non disclosure of cause of action against the appellant. For fortifying his argument, the learned counsel placed reliance on Sunil B.Naik Vs. Geowave Commander, ( in Civil Appeal Nos.2617 & 2618 of 2018 arising out of SLP (Civil) Nos.18845 & 18899 of 2013 before the Hon'ble Supreme Court of India) [MANU/SC/0230/2018] ; Gulf Petrochem Energy Pvt. Ltd., and Ors. Vs. M.T.Valor and Ors.(Notice of Motion (L) Nos.581 & 805 of 2015 in Admiralty Suit (L) No.94 and 240 of 2015 before the High Court of Bombay) [MANU/MH/0624/2015]; M.V.Flag Mersinidi A foreign flag vessel and Southport Spirit SA and Georim Oil Corporation Vs. M.V.Flag Mersinidi, J.H.Shipping Company Limited and South Spirit SA (Notice of Motion No.763 of 2013 in Admiralty Suit No.8 of 2013 before the High Court of Bombay) [MANU/MH/0440/2014], the judgment of the High Court of Gujarat at Ahmedabad in Admirality Suit No.20 of 2009 in Link Oil Trading Ltd. Vs. M.V.ST Peter (Formerly Named ST Luke) and Raj Shipping Agencies Vs. M.V.”Bunga Mas Tiga” and Anr. (Notice
of Motion No.81 of 2001 in Admirality Suit No.17 of 2000 before the High Court of Bombay) [MANU/MH/0332/2001], and the one delivered by the Federal Court of Appeal, Delivered at Ottawa, Ontario on Feb.25, 2011 in World Fuel Services Corporation and The Ship “NORDEMS” and The Owners and All Others Interested in the Ship “NORDEMS” and REEDEREI “NORD” KLAUS E.OLDENDORFF GMBH and PARTENREEDEREI ms “NORDEMS” and PARKROAD CORPORATION [2011 FCA 73];
● The Charter party is a bilateral agreement between the owner of the vessel and the charterer, and the respondent, the supplier of bunker, is not a party to it. Therefore, that which can bind the charterer will not bind the respondent.
● The confirmation-mail of the respondent, the buyer of the bunker is mentioned as 'M.V.Tina/and/or master and/or Owners and the charterer of the ship was included to them lastly. In other words, the respondent's intentions are clear that it intended to bind the vessel and its owner and not just the charterer. And, in the 'Remarks Column' therein, it is again indicated in positive terms that “all sales are on credit of vessel. Buyer is presumed to have authority to bind vessel with a maritime lien...”
Therefore, from the stand point of the respondent, it has continuously and consistently believed that its contract for the supply of bunker was intend to bind the vessel and necessarily its owner, and at no time did it indicate that it had any intentions to exempt the owner of the vessel either before the contract or after the said contract. When the cause of action is thus proved to exist to maintain a suit against the owner of the vessel, the same cannot be short circuited by seeking rejection of plaint. Reliance was placed on the judgments in M.V.Sea Renown and Another Vs. Energy Net Limited [(2003) JX Gujarat 278]; Mayar (H.K.) Ltd., and Others Vs. Owners and Parties, Vessel M.V.Fortune Express and Others [(2006) 3 SCC 100)]; Liverpool & London S.P. & I Association Ltd., Vs. M.V.Sea Success I and Another [(2004) 9 SCC 512]; Videsh Sanchar Nigam
Limited Vs. M.V.Kapitan Kud and Others [1996 7 SCC 127 = CDJ 1995 SC 1221]; G.M.Shipping Co. Ltd. Vs. Glander International Bunkering Pte. Ltd., [ 2015 JX (GUJ) 1476 = 2015 (0) AIJ-GJ 234605]; Chemoil Adani Private Limited Vs. M.V.Hansa Sonderburg and Others [2010 (112) BLR 2056 = CDJ 2010 BHC 694]; Alexandros Dryron S.A.
Vs. Owners and Parties interested in the Vessel M.V.PRAPIT [AIR 1998 CALCUTTA 142].
9.1 Considerable arguments were heard on what the law is and how the court have declared it in several authorities that both the sides have relied on generously. However, the need to delve into the authorities and to test their application to the controversy before this court is restricted by the scope of this appeal, its nature and quality put on display. The core issue is, should the plaint be rejected.
9.2 Uncountable are the number of authorities that declare in unequivocal terms that the basic and perhaps the only test for holding if the plaint is to be rejected on grounds of non disclosure of a cause for instituting the action is to read the plaint in plain terms, and to gather its meaning without resorting to any exercise in interpretation or strained construction. If the plaint passes this test, then the suit cannot be rejected. On the contrary, the moment a plaint is required to be appreciated for the alleged non disclosure of cause of action on the basis of perceived intention of the parties to be gathered by construction of any documents then the suit ought to go for trial. More so in this case where documents relied on by the both sides are though substantially the same, yet the arguments on them differed on the point as to what they convey. This is essentially a material for trial and the issues involved cannot be quick-fixed on random inferences. This is the very conclusion that the learned Single Judge has arrived at.
To conclude, this Court does not find any merit in the appeal and the same is dismissed. No costs.
Sd/-
Assistant Registrar(CS IX)
//True Copy//
Sub Assistant Registrar
To
The Sub Assistant Registrar,
Original Side,
High Court, Madras.
+1cc to Mr.P.Gridharan, Advocate Sr.72727
+1cc to Mr.S.Raghunathan, Advocate Sr.72974
O.S.A.No.256 of 2016
nmi[co]
srg 17/12/2018
3 issues framed by the court
Whether the plaint for recovery of bunker fuel costs against ship owners was non-maintainable due to lack of cause of action.
Whether the appeal against the dismissal of the application to reject the plaint should be allowed on the pleadings.
Whether the charter party agreement exempts the ship owner from liability to a third-party bunker supplier.
Colour shows how this judgement treated each authority
Sunil B.Naik Vs. Geowave CommanderReferred¶31
Sunil B.Naik Vs. Geowave Commander, ( in Civil Appeal Nos.2617 & 2618 of 2018 arising out of SLP (Civil) Nos.18845 & 18899 of 2013 before the Hon'ble Supreme Co
Gulf Petrochem Energy Pvt. Ltd. and Ors. Vs. M.T.Valor and Ors.Referred¶31
Gulf Petrochem Energy Pvt. Ltd., and Ors. Vs. M.T.Valor and Ors. [MANU/MH/0624/2015]
M.V.Flag Mersinidi and Another Vs. Southport Spirit SA and Ors.Referred¶31
M.V.Flag Mersinidi A foreign flag vessel and Southport Spirit SA and Georim Oil Corporation Vs. M.V.Flag Mersinidi [MANU/MH/0440/2014]
Link Oil Trading Ltd. Vs. M.V.ST PeterReferred¶31
Link Oil Trading Ltd. Vs. M.V.ST Peter [MANU/MH/0332/2001]
World Fuel Services Corporation and OthersReferred¶31
World Fuel Services Corporation and The Ship NORDEMS [2011 FCA 73]
M.V.Sea Renown and Another Vs. Energy Net LimitedReferred¶38
M.V.Sea Renown and Another Vs. Energy Net Limited [(2003) JX Gujarat 278]
Mayar (H.K.) Ltd. and Others Vs. Owners and OthersReferred¶38
Mayar (H.K.) Ltd., and Others Vs. Owners and Parties, Vessel M.V.Fortune Express and Others [(2006) 3 SCC 100] · Who else cites this
Liverpool & London S.P. & I Association Ltd. Vs. M.V.Sea Success I and AnotherReferred¶38
Liverpool & London S.P. & I Association Ltd., Vs. M.V.Sea Success I and Another [(2004) 9 SCC 512] · Who else cites this
Videsh Sanchar Nigam Limited Vs. M.V.Kapitan Kud and Ors.Referred¶38
Videsh Sanchar Nigam Limited Vs. M.V.Kapitan Kud and Others [1996 7 SCC 127 = CDJ 1995 SC 1221] · Who else cites this
G.M.Shipping Co. Ltd. Vs. Glander International Bunkering Pte. Ltd.Referred¶38
G.M.Shipping Co. Ltd. Vs. Glander International Bunkering Pte. Ltd., [ 2015 JX (GUJ) 1476 = 2015 (0) AIJ-GJ 234605]
Chemoil Adani Private Limited Vs. M.V.Hansa Sonderburg and Ors.Referred¶38
Chemoil Adani Private Limited Vs. M.V.Hansa Sonderburg and Others [2010 (112) BLR 2056 = CDJ 2010 BHC 694]
Alexandros Dryron S.A. Vs. Owners and OthersReferred¶38
Alexandros Dryron S.A. Vs. Owners and Parties interested in the Vessel M.V.PRAPIT [AIR 1998 CALCUTTA 142] · Who else cites this
2 provisions across 2 enactments
Owners and Parties interested in the Vessel TINA
STX Corporation
N.SECHASAYEE
M.SATHYANARAYANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
