NIPPON YUSEN KAISHA Vs. MARIENFELS

JUDGEMENT

(1.) This appeal arises out of an application made by the plaintiffs in Suit No. 2 of 1932 in the Admiralty Jurisdiction of this Court, and the facts which gave rise to that application, shortly stated, are as follows: It appears that, on 16 March 1930, two steamships, namely, the "Marienfels," belonging to the Hansa line, and the "Malacca Maru," belonging to the Nippon Yusen Kaisha, were proceeding down the Hooghly and that, at a point named Pukuria Point, where, it is alleged, that the waters are of a shallow character, a collision took place between the "Marienfels" and the "Malacca Maru." The "Marienfels" was in charge of Mr. King as pilot and the "Malacca Maru" was in charge of another pilot named Mr. Halford. The collision having taken place on 16 March 1930, the "Marienfels" alleged that the "Malacca Maru" was to blame. The "Malacca Maru," on the other hand, alleged that the "Marienfels" was to blame. On 7 May 1930, the owners of the "Malacca Maru" wrote to the owners of the "Marienfels" asking for admission of liability for damages. On 9 May 1930, the "Marienfels" replied denying liability and holding the "Malacca Maru" responsible for damages caused as the result of the collison. On 15 May 1930, the "Malacca Maru" suggested that the parties should go to arbitration. On 24 May 1930, the "Marienfels" stated that their under writers were not prepared to admit liability or to do anything whatsoever until the Marine Court; of Inquiry had been held and had reported. It appears that the Marine Court of Inquiry reported on the matter on 16 November 1930, and it is said that the finding of the Marine Court of Enquiry was not communicated to the parties till some time in June 1931. On 7 July 1931, the "Marienfels" wrote to the "Malacca Maru" putting forward their claim for damages to the "Marienfels" as a result of the collision.

(2.) On 5 August 1931, the "Malacca Maru" wrote to the "Marienfels" stating that the owners of the former did not agree with the findings of the Marine Court Inquiry and suggesting a settlement on the basis that both the vessels were equally to blame and that tooth should pay their own damages. On 10 August "1931 the "Marienfels" wrote to the "Malacca Maru" asking for payment of their claim for damages in full. On 18 August 1931, the "Malacca Maru" refused to admit the claim of the "Marienfels" for damages and renewed their suggestion that, inasmuch as, in their view, both parties were equally to blame, both sides should pay their own damages. On 20 August 1931, the "Marienfels" stated in reply to the last communication of the "Malacca Maru," that they were not prepared to agree to have the matter disposed of on the basis suggested by the "Malacca Maru," that both sides ware to blame and that both aides should pay their own damages and they threatened legal proceedings. On 24 August 1931 the "Malacca Maru" said that they were referring to their underwriters the question raised by the "Marienfels." On 6 November 1931, Dr. Reinhard Reme, representing the re-insurers, wrote to the underwrites of the "Marienfels" offering settlement but, at the same time, stating that, if the Hansa line took legal proceedings, the owners of the "Malacca Maru" would put forward a claim for damages. On 12 November 1931, there was a very important letter from the underwriters of the "Marienfels" to Dr. Reinhard Reme representing the reinsurers of the "Malacca Maru" and it was in these terms: With reference to the above, I herewith confirm, with thanks, receipt of your letter of 6 instant. I note from your letter that the insurers of the "Malacca Maru" did not see their way to accept the offer of compromise made by us. I have informed the Deutsche Dampfschiffa hrts-gesellschaft "Hansa" of this, who have then given instructions to institute legal proceedings in Calcutta immediately. I thought it appropriate to advise you of this.

(3.) It appears that nothing further was done and that, ultimately, on 12 March 1932, a bill in the Admiralty Jurisdiction of this Court was filed by the owners of the "Marienfels," being Admiralty Suit No. 1 of 1932, in which the owners of the "Marienfels" claimad recovery of a sum of Rs. 64,870-1-11 as damages caused to the "Marienfels" by the "Malacca Maru" during the collision in the river Hoogbly on the data referred to above. The writ of summons, we are informed, was served some time about 23 March 1932, and thereafter, on 25 April 1932, a second bill in the Admiralty Jurisdiction of this Court, being Suit No. 2 of 1932, was filed by the owners of the "Malacca Maru," claiming damages to the extent of ?6000 against the owners of the "Marianfels" for damages to their vessel on the occasion of the collision referred to above. The bill was filed, as stated above, on 25 April 1.932, and the answar of the "Marienfels" wa3 filed on 15 June 1932. One of the points taken in the answer of the "Marienfels" was that Suit No. 2 of 1932 filed by the "Malacca Maru" was out of time, having regard to the provisions of Section 8, Maritime Conven--tions Act, 1911 (l and 2 Geo. V. C. 57). The section relied upon by the "Marienfels" runs as follows: No action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered, and an action shall not be maintainable under this Act to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment: Provided that any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of Court, extend any such period to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the Court, or within the territorial waters of the country to which the plaintiff's ship belongs or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.