LUGA BAY SHIPPING CORPORATION SOUTH INDIA CORPORATION AGENCIES LIMITED Vs. BOARD OF TRUSTEES OF THE PORT OF COCHIN:BOARD OF TRUSTEES OF THE PORT OF COCHIN

JUDGEMENT

(1.) -These two appeals arise from a common judgment of the Division Bench of the High Court of Kerala on a reference made to it by a learned single Judge of that Court. The High Court found itself confronted with the question whether the Cochin Port Trust is entitled, under the Major Port Trusts Act, 1963 (hereinafter referred to as the Major Port Trusts Act) the Indian Port Act, 1908 (hereinafter referred to as the Indian Ports Act) and the Regulations made thereunder, to demand an unconditional cash deposit from the owner of a ship which caused damage to the property of the Port Trust.

(2.) The appellants in Civil Appeal No. 2427/94, South India Corporation (Agencies) Ltd., are the agents of the vessel, M. T. Larnaca. The appellants in Civil Appeal No. 2426/94, M/s Luga Bay Shipping Corporation, are the owners of the said vessel. The respondents are the Board of Trustees of the Port of Cochin (hereinafter referred to as the Port Trust), and its Deputy Conservator. The vessel entered the Port of Cochin on June 6, 1984, and was berthed at Berth No.2. On June 14, 1984, the vessel, while being shifted from Berth No. 2 to the North Tanker Berth, dashed against the northern side of the RCC platform on which the gravity fenders were suspended, causing damage to the platform. Notice of damage to the platform was served on June 20, 1984. The appellants do not dispute that the vessel was berthed in the North Tanker Berth on June 14, 1984. However, they deny that any damage was caused by the vessel to any property of the Port Trust during such berthing. The Port Trust, on the other hand, claims that the damage assessed by the Port Chief Engineer was of Rs. 33.82 lakhs. The second respondent, the Deputy Conservator of Port Trust, requested the local agents of the vessel, by a notice dated June 29, 1984, to deposit that amount. They were also informed that the vessel would be allowed to sail from the Port only after the amount was deposited.

(3.) The Shipping Corporation, the petitioner before the Court, filed a writ petition under Article 226 of the Constitution of India which was registered as Original Petition No. 5822 of 1984. It prayed for calling of the records leading to the issue of notice (Exhibit P.6) dated June 29, 1984 and to quash the same by an appropriate writ; to declare condition No. 6 of the Notification dated January 8, 1980 fixing the scale of rates and statement of conditions for levy of charges by the Port Trust under Sections 48, 49 and 50 of the Major Port Trusts Act ultra vires the Act and the Constitution; to declare Regulations Nos. 3 and 43 of Cochin Port Trust Regulation, 1975 ultra vires the provisions of the Indian Ports Act and the Major Port Trusts Act and to restrain the respondents from enforcing the aforesaid two regulations. We will shortly advert to the impugned provisions of the Notification dated January 8, 1980 and the Cochin Port and Dock Regulation, 1975. The learned single Judge of the High Court referred the case to a Division Bench. The Division Bench posed the question whether the Cochin Port Trust is entitled, under the Major Port Trusts Act, the Indian Ports Act and Regulations made thereunder, to demand an unconditional cash deposit from the owner of the ship which allegedly caused damage to the property of the Port Trust. The Division Bench examined the provisions of Section 116 of the Major Port Trusts Act, and came to the conclusion that, in a situation like the one on hand, the amount of damage must be determined by the Board and that the liability of the Master and owner of the vessel was absolute. Section 116 can be reproduced for ready reference: