A S M SHIPPING LTD Vs. LYUBARETS VIKTOR

JUDGEMENT

(1.) ON various dates, the vessel in question (the same vessel) came to be arrested under orders of arrest of this Court, originally at the instance of the plaintiffs in the suit and subsequently at the instance of the crew members, who were allowed to intervene. The vessel, under orders of arrest of this Court, was detained in the Port of tuticorin. By filing Application Nos. 627 to 630/2004, the order passed exparte arresting the vessel, was sought to be rescinded by the operator in India for the vessel in question. Considering the urgency shown, the vessel, which was in the tuticorin Port at that time pursuant to the orders of arrest, was allowed to leave the Tuticorin Port on its onward journey to the Port of visakapattanam for unloading the cargo already loaded in it at Tuticorin, with a further direction that the vessel, on reaching the port at visakapattanam, would continue to remain arrested under orders of this Court by order dated february 17,2004. Thus, the vessel continues to be detained in the port of Visakapattanam under orders of arrest passed by this Court as referred to earlier. Mr. S. Vasudevan learned counsel appears for the plaintiffs in the suit and for the other crew members and Mr. S. R. Raghunathan learned counsel appears for the operator in India for the vessel in question, each arguing to continue the order of arrest and to vacate the order of arrest respectively.

(2.) MR. S. R. Raghunathan learned counsel appearing for the operator in India for the vessel does not dispute the fact that wages still remain to be paid in respect of some of the crews and that whatever wages that remains due to any of the parties to the suit or to the intervenors, it would be paid at the time each one of them is signed off. He drew my attention to an averment to that effect in the affidavit of sanjay Dasmunshy sworn to by him on february 28, 2004 and filed in the proceeding. The vessel remains arrested, as already stated, on the ground that wages payable to the plaintiffs and other crew members, who were allowed, to intervene, have not been paid. Inasmuch as there is no dispute that wages is still due atleast in respect of some crew members, who are on record before this Court, there is no question of releasing the vessel from the order of arrest at this stage. Mr. S. R. Raghunathan learned counsel would submit that this Court may be in a position to pass an order directing the release of the arrest order, on payment of the entire wages payable to the parties to the proceedings and filing proof for the same. In my opinion, it appears to be an unworkable order. The parties are before this court. Payment of wages and receipt of the same should be brought to the notice of this court by the party paying and the party receiving it. Once that stands established, this court may be in a position to release the vessel from the order of arrest.

(3.) HOWEVER, the matter does not appear to end there. Mr. S. Vasudevan learned counsel appearing for the plaintiffs and other crews would state that besides the entitlement of wages, the parties to the proceedings namely, the plaintiffs in the suit and other crew members, who were allowed to intervene, are also entitled to payment of compensation. Compensation is yet to be paid. Therefore, release of the vessel from the order of arrest, on payment of wages alone, would be out of question, unless the owner of the vessel pays the compensation amount also to the parties to the proceedings. For this purpose, the learned counsel relies upon Section 143 of the merchant Shipping Act, 1958. This claim for compensation is stoutly opposed by the learned counsel appearing for the vessel operating agent in India, by stating that even as on date, the cause of action to claim compensation has not arisen to any of the plaintiffs or to the crews. His submission is that, so long as there is no order of discharge of either the plaintiffs or the other crew members, Section 143 of the merchant Shipping Act (hereinafter referred to as the Act) would not be attracted at all.