BERNER SHIPPING INC Vs. KALA RAMCHANDRAN

JUDGEMENT

(1.) PLAINTIFF No. 1 is a company incorporated under the laws of Liberia and were the owners of the vessel m. v. "cardigliera", flying the Panama Flag which hereinafter shall be referred to as "the vessel". On 13th November, 1996 the vessel sailed out from the port at Durban, South Africa for Cape Town in South Africa. The vessel sank off the coast of Durban, South Africa on 13th November, 1996 with all hands on board, which included officers and crew members. The plaintiff No. 2 as Agent had entered into an Agreement with the deceased either at Mumbai or Delhi. Defendants are being sued as claimants to the estate of the deceased and/or their legal heirs. The suit by the plaintiffs is in a nature of limitation suit seeking to limit the liability of the owner of the vessel and also for injunction to restrain the defendants herein from pursuing the suit filed in London under Case No. 1998/folio No. 1339 in the High Court of Justice, Queens Bench Division, Commercial Court, London, England. Various other reliefs have also been prayed for which have been set out in the plaint.

(2.) BY the present Notice of Motion, the plaintiffs have prayed for an injunction to restrain the defendants herein either by themselves and/or by or through any other person or parties from filing and/or continuing the London proceedings pending the hearing and final disposal of the suit. Affidavit in support of the Notice of Motion has been filed by one Chandrahas Dattatray Phansekar as Constituted Attorney of the 1st plaintiff and Bombay Office Manager of 2nd plaintiff. It is contended on behalf of the plaintiffs that the parents of the deceased Electrical Officer Manuel J. Fernandes, defendant Nos. 27 and 28 have filed a suit before this Court being Admiralty Suit No. 56 of 1999, arising out of the death of their son on account of sinking of the vessel. Similarly, the parents of one Brian H. Gracias have filed a suit in a local Court in Goa being Inventario Proceedings No. 43 of 1997. The first wife of the Bosun, M. I. A. Maulana has filed a suit in the City Civil Court in Mumbai. It is contended that they apprehend other suits will be filed by the cargo owners and others and the liability of the plaintiffs will exceed Rs. 1,74,85,550/ -. It is contended that by virtue of Part X-A of the Merchant Shipping Act, 1958 the plaintiffs are entitled to maintain this suit limiting their liability for claims/damages arising out of the sinking of the vessel on 13th November, 1996. It is also contended that they are entitled to have a limitation fund constituted by this Court to determine the different claims of various claimants including the abovenamed defendants. It is further contended that the employment contracts with the officers and crew members were all entered into in India (Bombay and Delhi) within the Admiralty and Vice-Admiralty Jurisdiction of this Court. The said contracts were intended to be and are subject to and governed by the laws of India. The natural forum for these claims would be this Court. The defendants are not entitled to and cannot be permitted to go forum shipping. The proceedings in London, it is contended, are one such attempt and in these circumstances the plaintiffs are entitled to the injunction as prayed for. The employment contracts, it is contended are subject to and governed by the laws of India. The defendants who are claiming as legal heirs/nominees/next-of-kin reside and/or are gainfully employed in India, within the Admiralty and Vice Admiralty Jurisdiction of this Court. In these circumstances, it is this Court that would have the jurisdiction to hear and decide the present suit. It is further contended that the vessel at all material time as also when it sailed from the port of Durban was fit and seaworthy in all respects. The vessel sank on account of Vis Majeure/force Majeure and the occurrence that is the sinking of the vessel giving rise to the purported claims have not arisen on account of any fault or privity or negligence of the plaintiffs herein. It is alleged that the legal heirs of the deceased seamen/officers apart from claiming compensation in terms of the Agreement are also claiming damages on the ground that the vessel was not fit and unseaworthy at the time it sank on 13th November, 1996 off Durban, South Africa. The proceedings in London have been filed through one Deirdre Fitzpatrick. Locus standi of the aforesaid Deirdre Fitzpatrick is questioned. The letters of administration obtained by the aforesaid Deirdre Fitzpatrick are disputed. It is pointed out that the High Court of Justice, Queens Bench Division, Commercial Court, London has no jurisdiction over the plaintiffs therein, as they do not reside within the jurisdiction of that Court. No part of the cause of action has arisen therein. None of the defendants reside and/or are gainfully employed there. The plaintiffs also do not reside within the jurisdiction of that Court. The proceedings in London are to harass the plaintiffs. It is further contended that the defendants have made false, dishonest, fraudulent and malicious allegations regarding Indian Courts and the Indian Judicial System in the London proceedings. The paragraphs purporting to that effect are reproduced in paragraph 11 of the affidavit. In these circumstances, it is contended that the injunction as prayed for be granted.

(3.) ON behalf of the defendants one Jonathan Chaimovic, an Assistant Solicitor in the firm of Clyde and Co. , instructed by the plaintiffs in the London suit namely International Transport Workers Federation ("the ITF") has filed an affidavit. It is contended that the affidavit is filed for the limited purpose of contesting the jurisdiction of this Court to entertain and try the suit and/or to oppose the grant of any relief sought for in the Notice of Motion. The action in England, it is contended, has been commenced on behalf of the defendants as the vessel sank on account of over loading of the main deck with granite blocks causing the deck to buckle and/or collapse and water to Enter No. 1 hold. (There was no doubt that the vessel was designed to take water on deck and given the sea conditions, that she would have taken water on deck during the subject voyage without endangering the safety of the ship or the crew) and the collapse of the ships structure due to corrosion related structural weakness and massive consequent structural failure. (In addition, further water ingress into holds could have occurred due to defective hatch covers ). Reference is thereafter made to the preliminary investigations carried out by the South African Department of Transport. Affidavit sets out the steps taken to find out the cause of the sinking by actually undertaking dives over a period of four days. It is averred that Capt. Turner based on the dives carried out in March, 1998, informed that the cause of sinking could not have been a freak wave. In para 15, it is set out that it is highly appropriate that the matter be dealt with by the English High Court of Justice in the English proceedings commenced and known to the plaintiffs herein. The grounds listed for continuation of proceedings in England are :-