AL AHLI BANK OF KUWAIT Vs. ARABIAN VICTORY

JUDGEMENT

(1.) These cases were heard by a Division Bench of this Court in detail. Both the learned Judges who heard the matter delivered separate judgments and in view of the difference of opinion expressed by the Bench, the matter is placed before me for opinion by the Chief Justice under Section 23 of the Travancore-Cochin High Court Act read with Section 9 of the Kerala High Court Act. Both the learned Judges in their separate judgments dismissed Writ Petition No. 10591 of 2002 in limine and O.P. No. 19116 of 2002 without prejudice to the contentions of the petitioner and to seek relief before the appropriate court. I am not considering that part of the judgment. Therefore, what is left is only the Writ Appeal No. 2990 of 2002. Before stating the difference of opinion expressed by the two learned Judges, the facts of the case which are not in dispute are summarised in a nutshell.

(2.) Al Ahli Bank of Kuwait (KSC) petitioner in W.P.(C)No. 27758of 2002, is the appellant herein. It filed the writ petition invoking admirality jurisdiction of this Court under Merchant Shipping Act, 1958 and Article 226 of the Constitution of India to quash the proceedings of the Judicial Magistrate of the First Class, Ernakulam in M.C. No. 11 of 2002 and related petitions and to enforce its claim as a mortgagee and to sell the vessel to foreclose legal maritime claims. Jurisdiction of the Magistrate to entertain the maritime claims of respondents 3 to 13, Master and Crew of the vessel, was also questioned. The vessel M.T. Arabian Victory was owned by the second respondent company. Last cargo carried in that vessel was discharged on 6-5-2002 at Port Jebel Ali and it was advised to drop anchor at Out of Port Limit (OPL) Dubai (Highseas, International Waters). According to the Master of the Ship during the stay at OPL Dubai, there was no supply of stores, spares, provisions, fresh water, bunkers etc. The air conditioning unit of the vessel was not operational. The crew members were also not paid their wages for the last several months. The crew remained in the anchorage for about 50 days and during those 50 days, the crew was left to look after themselves without supply of any essential and basic requirements from the owner or agents. In spite of repeated reminders by fax, the owners never did anything. They remained in the vessel at OPL (Highseas) at 46 degree centigrade as the A/C unit was not functioning without proper food. They also requested the Mission to Seafarers, a non-Governmental organisation at Dubai and Managing Director of Dubai Ports and Marine Police, Dubai for help on humanitarian grounds. They were not allowed to land at Dubai. According to the Master of the ship, the second respondent company threatened the Master and Crew. Even though Mission to Seafarers provided some vessel hunkers and basic essential supplies, the entries in the log book show that the crew members started falling sick due to dehydration, sunburns etc. In order to save the lives of the crew as they were in distress the ship set sail to the Port of Mumbai. Since the Port authorities at Mumbai did not permit entry for the ship, it was taken to Cochin Port. Master by Ext. R-l (1) message dated 1-7-2002 requested the Chairman of the Cochin Port Trust seeking permission to enter the Port and also requesting to provide medical assistance, fresh water and food to him and to the crew members. By the time, owners of the ship informed the authorities of Mumbai Port that the ship was hijacked by the Master and Crew. The said message was conveyed to the Cochin Port Trust. Pursuant to the said intimation, the Coast Guard inspected the vessel and submitted Ext. R-1(j) report before the Chairman of the Cochin Port Trust. The report said that nothing suspicious was found in the vessel. It is further stated that the general health of the crew was not good and they require medical attention. The habitability condition of the vessel was pathetic. The vessel was running out of provisions, bunkering and there was no fresh water on board and salary was not paid to the crew and no logistic support was given to them as can be seen from Ext. R-l (j). By the directions of this Court in O.P. No. 18339 of 2002 filed by a representative of ITF the above vessel was allowed to berth at Cochin Port and the vessel entered and berthed at the Cochin Port on 4-7-2002. Messers Hina Shipping and Clearing (Cochin) Private Limited was appointed as the agent of the vessel by the Master and the said agency was providing bunkers and other basic provisions to the vessel. Even after the above, the owner of the ship did not make any arrangements to take care of the crew or the vessel.

(3.) The Master and Crew approached the Judicial First Class Magistrate's Court at Ernakulam for wages under Section 145 of the Merchant Shipping Act, 1958. Section 145 of the Act is as follows: