1. The plaintiffs company has filed this suit originally against M.V Anny L for the sum of US Dollars 91.902.81 with interest, costs etc. According to the plaintiffs, their claim was in respect of supply of bunkers to the defendants vessel. It has been further stated in the plaint that the vessel M.V Anny L was previously known as Alexia S, but from 20th December 1995 the ownership of Alexia S was changed from the previous owners Navabet Shipping Limited to Sokena Shipping Limited who were subsequently joined as defendant No. 2 by way of amendment of the plaint.
2. In the written statement the defendants raised different objections to the claim of the plaintiffs. Similarly, objections regarding tenability of the suit were also raised, and therefore, consequently following issues were framed by the Court:—
ISSUES:—
1. Whether the plaintiffs prove that any request for supply of bunkers was received by them from the Master of the Defendant vessel?
2. Whether the plaintiffs prove that they supplied bunkers to the Defendant vessel?
3. Whether the plaintiffs prove that they are entitled to recover the price of any bunkers supplied to the Defendant vessel by third parties?
4. Whether the plaintiffs prove that no part of their claim has been paid?
5. Whether Defendant No. 2 proves that there was a change in the ownership of the vessel after the dates of supply of bunkers to the said vessel?
6. Whether the plaintiffs prove that in respect of their claim they have a maritime lien on the Defendant vessel which survives change of ownership of the Defendant vessel?
7. Whether the Defendants prove that the proper law of the contract for the supply of bunkers is Greek law and/or the law of the Republic of Malta?
8. Whether the Defendants prove that under the proper law applicable to the contract, the Plaintiffs are not entitled to a maritime lien in respect to their claim which survives a change of ownership of the Defendant vessel?
9. Whether Navabet Shipping Ltd., the previous owners of the Defendant vessel and the physical supplier of the bunkers, are proper and/or necessary parties?
10. If yes, whether the suit is liable to be dismissed for non-joinder of a necessary party?
11. Whether the Plaintiffs prove that they are entitled to interest and if so, at what rate and from what date?
12. What order and decree?
3. It appears that thereafter on insistence of the defendants issue No. 6 was agreed to be decided as preliminary issue, and therefore, arguments of the advocates for the plaintiffs and defendants were heard by me on that issues which is as follows:—
Issue No. 6:—
“Whether the plaintiffs prove that in respect of their claim they have a maritime lien on the defendant vessel which survives a change of ownership of the defendant vessel?”
4. It was contended by the counsel for the defendants that so far as claim of the plaintiffs for supply of bunkers is concerned, the same was not and could not be considered as maritime liens, and therefore, this issue is required to be answered in the affirmative consequently resulting in dismissal of the suit.
5. On the other hand it was contended by the counsel for the plaintiffs that this issue has already been covered by the judgment of this Court reported in AIR 1995 Bom 281 (Sigma Coatings BV v. m.v Agios Nikolaos) and reliance was placed by the learned counsel for the plaintiffs on the judgment of the Supreme Court reported in 1993 Supp (2) SCC 433 : AIR 1993 SC 1014 (m.v Elisabeth v. Harwan Investment and Trading Pvt. Ltd., Goa).
6. As against this, it was contended by Mr. Pratap, learned counsel for the defendants that both these judgments of the Supreme Court and this Court are not applicable in the present case as they are neither the ratio decidendi nor obiter dicta, and therefore, are not binding on this Court. Mr. Pratap, the learned counsel for the defendants contended that as to what constitutes maritime lien and what is covered by maritime lien was not an issue open before the Supreme Court in the case of M.V Elisabeth, and therefore, pronouncement of Justice R.M Sahai in paragraph No. 99 of the said judgment cannot be considered as a declaration of law, but has to be considered as a mere passing reference as to what was the position of the English Law. So far as judgment of Justice Dhanuka in Sigma Coatings BV (AIR 1995 Bom 281) is concerned, it was contended by Mr. Pratap that Justice Dhanuka has merely quoted or referred to para 99 of the judgment of the Supreme Court in M.V Elisabeth (1993 Supp (2) SCC 433 : AIR 1993 SC 1014), but since the said judgment of Justice R.M Sahai was not a declaration of law nor the ratio decidendi or obiter dicta, Justice Dhanuka was in error in relying upon the same for the purpose of deciding as to what was maritime lien and what constitutes maritime lien.
7. Further with reference to both the aforesaid judgments of the Supreme Court in M.V Elisabeth (1993 Supp (2) SCC 433 : AIR 1993 SC 1014) and this High Court in Sigma Coatings BV (AIR 1995 Bom 281) Mr. Pratap contended that the judgment of the Supreme Court was delivered on 26-2-1992, but thereafter India became a signatory to the international Convention on Maritime Liens and Mortgages 1993 which were signed at Geneva on 6-5-1993 and in this Convention certain maritime liens have been recognised by the said Convention and since this Convention was signed subsequent to the judgment of the Supreme Court in M.V Elisabeth, the provisions of the said Convention will apply while deciding the present suit and the judgment of the Supreme Court in M.V Elisabeth (this argument was advanced as an alternative argument). So far as judgment of the Supreme Court in M.V Elisabeth (1993 Supp (2) SCC 433 : AIR 1993 SC 1014) is concerned, Mr. Pratap contended that this international Convention on Maritime liens and Mortgages, 1993 was not brought to the notice of Justice Dhanuka, and therefore, judgment of Justice Dhanuka is required to be treated as being given per incuriam i.e given in ignorance of the terms of a statute or of a rule having the force of a statute. Therefore, according to Mr. Pratap, the judgment of Justice Dhanuka is not applicable and is required to be distinguished.
8. Mr. Pratap relied upon the decisions of the Supreme Court reported in (1989) 1 SCC 101 : ((1989) 1 SCC 101 : AIR 1989 SC 38) (Municipal Corporation Of Delhi v. Gurnam Kaur .) and (1991) 4 SCC 139 (State of U.P v. Synthetics and Chemicals Ltd.), (1980) 1 SCC 677 : AIR 1980 SC 1707 (Rajpur Ruda Meha v. State of Gujarat) and also relied upon a decision of Bombay High Court reported in AIR 1955 Kaikhosroo Phirozshaw Doctor…, (Original Petitioner); v. State….*. In the case of Municipal Corporation Of Delhi v. Gurnam Kaur . the Supreme Court has held that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. The Supreme Court has reproduced explanation of the concept of sub silentio by Professor P.J Fitzgerald, editor of the Salmond on Jurisprudence as under:—
“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
Further in paragraph No. 10 of the said judgment, the Supreme Court has observed as under:—
“Quotability as ‘law’ applies to the principle of a case, its ratio decidendi. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative.”
Further in paragraph No. 11 of the said judgment the Supreme Court has held that pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative.
9. According to Mr. Pratap the above facts will clearly show that the question whether the supply of necessaries constitutes maritime lien was not before the Supreme Court. According to Mr. Pratap Justice Dhanuka in his judgment in the case of Sigma Coatings BV v. m.v Agios Nikolaos (AIR 1995 Bom 281) reproduced the observations of Justice Sahai of the apex Court and since according to Mr. Pratap the aforesaid observations of the Supreme Court in Paragraph No. 99 of Justice Sahai do not lay down any law as ratio decidendi or obiter dicta, they be not taken into consideration by this Court.
10. At this stage it is necessary to consider the judgment of the Supreme Court relied upon by Mr. Pratap in support of his contentions. So far as that judgment in the case of M.V Elizabeth (1993 Supp (2) SCC 433 : AIR 1993 SC 1014) is concerned it relates to the observations of the Supreme Court of Justice R.M Sahai in Paragraph No. 98 and according to him having no binding effect on this Court as there is no ratio decidendi or obiter dicta in the said judgment. In the Elizabeth's case the issue before the Supreme Court was one of the jurisdiction i.e Whether the Andhra Pradesh High Court lacked of admiralty jurisdiction on a alleged cause of action concerning carriage of goods from a port in India to a foreign port. Paragraph No. 7 of the said judgment deals with the exact question that was agitated before the said Court, and therefore, it is reproduced as under:—
“Mr. Raju Ramchandran, appearing for the appellants (defendants), raises a fundamental objection as to the assumption of admiralty jurisdiction over a foreign ship in respect of a claim arising in connection with the carriage of goods from an Indian port to a port outside India. The High Court, he says, ordered the arrest of the vessel in purported exercise of its jurisdiction on the admiralty side. The power of the High Court on the admiralty side is, however, contained in and confined to the provisions of the Admiralty Court Act, 1861 (24 & 25 Victoriae, C. 10) made applicable to India by the Colonial Courts of Admiralty act, 1890 (53 & 54 victoriae, c. 27) (which are acts of the british parliament) read with the colonial courts of admiralty (india) act, 1891 (act 16 of 1891) declaring certain Indian Courts of unlimited civil jurisdiction as Colonial Courts of Admiralty and declaring the High Court of Judicature at Madras as one of such Courts. Mr. Ramachandran does not dispute that by reason of the Andhra State Act, 1953, and the States Reorganisation Act, 1956 read with the Government of India Act, 1959 and 1935 and the Constitution of India, the High Court of Andhra Pradesh has, like the High Courts of Madras, Bombay and Calcutta, such admiralty jurisdiction as was granted by the British Statutes referred to above. But that jurisdiction, counsel says, was not wider than what was granted under the British Statutes. The extent of admiralty jurisdiction and the judicial power peculiar to that jurisdiction, as conferred on the Indian High Courts remained frozen as on the date of the Admiralty Court Act, 1861. The wider powers assumed by the British Courts under the subsequent statutes of that country did not enlarge the admiralty jurisdiction of the Indian High Courts. In the absence of any subsequent British or Indian Statute widening the admiralty jurisdiction of the Indian High Courts, the jurisdiction of the Andhra Pradesh High Court over a foreign ship by means of an action in rem does not extend to any matter falling outside the Admiralty Court Act, 1861. The only provision of that Act respecting cargo is what is contained in Section 6 which is confined to goods ‘carried into any port in England or Wales in any ship …..’. Applying that provision to India by reason of the statutes referred to above, the Indian High Court exercising admiralty jurisdiction has no power to deal with any claim concerning outward cargo because Section 6 is confined to inward cargo. The plaintiff's case is founded on certain facts which clearly fall outside the ambit of Section 6 of the Admiralty Court Act, 1861. Consequently, the arrest of the vessel in purported exercise of admiralty jurisdiction in rem, concerning a claim relating to outward cargo, was null and void and of no effect. This argument, supported as it is by considerable scholarly research on the part of counsel, amounts to an invocation to admit incompetence and disability on the part of the Indian Judicial System to render justice for want of legislative grant of power. Counsel is fortified in his submission by certain decisions of Calcutta, Bombay and other High Courts.”
11. In the case of State of U.P v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139, referred to above the Supreme Court has considered the effects of its precedents on the High Courts and other Courts. In paragraph No. 40 of the said judgment Justice Sahai concurring with the judgment delivered by Justice Thommen has defined aforesaid terminology. According to him, ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. In the same paragraph a reliance has been placed by the Supreme Court on the judgment in Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 831, as to the procedure to be followed when conflicting decisions are placed before a Bench; viz. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered a declaration of law. In paragraph No. 41 the part of the judgment in Lancaster Motor Company (London) Ltd. v. Bremith Ltd., 1941 (2) All ER 11, it has been quoted to say that the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. Further, according to the Supreme Court, ‘precedents sub-silentio and without argument are of no moment’. Further it is observed that a decision which is not express and is not founded on reasons nor it proceeds on consideration or issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.
12. Since the aforesaid judgments of the Supreme Court are sufficient for the purpose of deciding the controversy viz. whether the observations of Justice Sahai of the Apex Court in the case of M.V Elizabeth v. Harwan Investment & Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014, regarding legal necessities are applicable in the present case, I do not think it necessary to consider the other judgments relied upon by Mr. Pratap.
13. Admittedly and as reproduced above the Supreme Court in the case of M.V Elizabeth v. Harwan Investment & Trading was concerned with the question of lack of admiralty jurisdiction in any Courts in Andhra Pradesh and about the question raised in paragraph No. 7 of the said judgment which is reproduced above. Questions whether the particular claim against ship is a maritime lien and whether the supply of necessaries constitutes a maritime lien and supply of which material could be considered as supply of necessaries were not the questions before the Supreme Court in the case of M.V Elizabeth v. Harwan Investment & Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014. The observations of Justice Sahai were relied upon regarding supply of necessaries constituting maritime lien are containing in paragraph No. 98 of the said judgment [which have been reproduced by Justice Dhanuka in his judgment in the case of Sigma Coatings BV v. Agios Nikolaos, AIR 1995 Bom 281. The observations of Justice Sahai in paragraph No. 98 are as under:—
“What then was the jurisdiction that the Court of England exercised in 1890? The law of Admiralty was developed by English Courts both as a matter of commercial expediency and due to equity and justice. Originally it was a part of common law jurisdiction, but the difficulty of territorial limitations, constraints of common law and the necessity to protect the rights and interest of its own citizens resulted in growth of maritime lien a concept distinct from common law or equitable lien as it represents a charge on maritime property of a nature unknown alike to the common law or equity. The Privy Council explained it as ‘a claim or privilege upon a thing to be carried into effect by legal process’. Law was shaped by exercise of discretion to what appeared just and proper in the circumstances of the case. Jurisdiction was assumed for injurious act done on high seas and the scope was extended, ‘not only to British subjects but even to aliens’; Maritime law has been exercised all over the world by maritime powers. In England it was part of municipal law but with rise of Britain as empire the law grew and it is this law, that is, ‘Maritime Law that is administered by the Admiralty Court’. From the maritime law sprang the right known as Maritime lien ascribing personality to a ship for purposes of making good loss or damage done by it or its master or owner in tort or contract. In England it grew and was developed in course of which its scope was widened from damage done by a ship to claims of salvor, wages, bottomry, supply of necessaries and even to bills of lading. Its effect was to give the claimant a charge on res from the moment the lien arose which follows the res even if it changed hands. In other words a maritime lien represented a charge on the maritime property. The advantage which accrued to the maritime lienee was that he was provided with a security for his claim up to the Value of the res. The essence of right was to identify the ship as wrongdoer and compel it by the arrest to make good the loss. Although the historical review in England dates back to the 14th Century but its statutory recognition was much later and ‘maritime law came to jurisprudential maturity in the first half of the 19th Century’. And the first statutory recognition of such right came in 1840 when the Admiralty Court Act of 1840 was enacted empowering the Admiralty Court to decide all questions as to the title or ownership of any ship or vessel or the procedure thereof remaining in the territory arising in any cause of possession, salvage, damage, wages or bottomry. By clause (6) of the Act jurisdiction was extended to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel or in the nature of towage or for necessaries supplied to any foreign ship or sea-going vessel and the payment thereof whether such ship or vessel may have been within the body of a country or upon the high seas at the time when the services were rendered or damage received or necessary furnished in respect of such claims. But the most important Act was passed in 1861 which expanded power and jurisdiction of Courts and held the field till it was replaced by Administration of Justice Act, 1920. The importance of the Act lay in introducing the statutory right to arrest the res on an action in rem. section 35 of the 1861 act provided that the jurisdiction by the High Court of Admiralty could be exercised either by proceedings in rem or proceedings in personam. “The essence of the rem in procedure is that ‘res’ itself becomes, as one might say, the defendant, and ultimately the ‘res’ the ship may be arrested by legal process and sold by the Court to meet the plaintiffs claim. The primary object, therefore, of the action in rem is to satisfy the claimant out of the res”. If the 1840 Act was important for providing statutory basis for various types of claims then 1861 Act was a step forward in expanding the jurisdiction to claims of bill of lading. Section 6 of the Act was construed liberally so as to confer jurisdiction and the expression carried into any port was expanded to mean not only when the goods were actually carried but even if they were to be carried. Further the section was interpreted as providing additional remedy for breach of contract. By the Jurisdiction Act of 1873 the Court of Admiralty was merged in High Court of Justice. Result was that it obtained jurisdiction over all maritime cases. Therefore what was covered by enactments could be taken cognizance of in the manner provided in the Act but there was no bar in respect of any cause of action which was otherwise cognizable and arose in Admiralty. section 6 of 1861 act was confined to claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales (to be read as India). But it did not debar any action or any claim by the owner or consignee or assignee of any bill of lading in respect of cargo carried out of the port. Even if there was no provision in 1861 Act, as such, the colonies could not be deprived under 1890 Act from exercising jurisdiction on those matters which were not provided by 1861 Act but could be exercised or were otherwise capable of being exercised by the High Court of England. “The theory was that all matters arising outside the jurisdiction of common law i.e outside the body of a country were inside the jurisdiction of Admiralty’. ‘That this Court had originally cognizance of all transaction civil and criminal, upon the high seas, in which its own subjects were concerned, is no subject or controversy’, to urge, therefore, that the Admiralty Court exercising jurisdiction under 1890 Act could not travel beyond 1861 Act would be going against explicit language of the Statute. Even now, the Admiralty jurisdiction of the High Court of Justice in England is derived ‘partly from statute and partly from the inherent jurisdiction of Admiralty’. Observations of Lord Diplock in Jade (The) that Admiralty jurisdiction was statutory only have to be understood in the context they were made. By 1976 the statutory law on Admiralty had become quite comprehensive. Brother Thommen, J., has dealt with it in detail. Therefore those observations are not helpful in deciding the jurisdiction that was exercised by the High Court in England in 1890.”
Further reading of the aforesaid paragraph and earlier paragraph No. 97 which is not reproduced or paragraph No. 96 it will be clear that the Supreme court was considering the manner in which the Admiralty jurisdiction was applicable in England and how the concept of Admiralty jurisdiction was widened and made applicable. This is, therefore, in the course of general discussion of the scope and applicability of the maritime, the following observations were made in paragraph No. 98:—
“In England it grew and was developed in course of which its scope was widened from damages done by a ship to claims of salvor, wages, bottomry, supply of necessaries and even to bills of lading.”
14. These observations of the Supreme Court have been pressed into service by the counsel for the plaintiffs in order to show that supply of necessaries constitutes maritime lien. Counsel for the plaintiffs also placed reliance upon these parts of the judgment in the case of M.V Elizabeth v. Harwan Investment & Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014, and some part which was reproduced by Justice Dhanuka in the case of Sigma Coatings BV v. M.V Agios Nikolaos, AIR 1995 Bom 281, in support of the plaintiffs' contentions that supply of necessaries constitutes maritime lien. In my humble opinion and with respect, I am unable to agree with this submission. While deciding the issue involved in the case of M.V Elizabeth, the question as to what is maritime lien and whether supply of necessaries constitutes maritime lien was not the question directly or indirectly involved before the Supreme Court. The aforesaid observations were made in the course of tracing history of Admiralty jurisdiction without the question being directly involved, without the parties before Supreme Court being called upon to advance arguments and without considering the pros and cons of this question i.e whether the supply of necessaries constitutes maritime lien, and therefore, the judgment in the case of M.V Elizabeth v. Harwan Investment & Trading cannot be taken as binding precedents. In my humble opinion this part of the judgment that is paragraph No. 98 quoted above is neither the ratio decidendi nor obiter dicta, and therefore, the contention of the counsel for the plaintiffs in that regard cannot be accepted.
15. It appears from the judgment of Justice Dhanuka in the case of Sigma Coatings BV v. M.V Agios Nikolaos (AIR 1995 Bom 281) that the counsel for defendant before him has raised similar objections i.e the observations of Justice R.M Sahai as quoted above in M.V Elizabeth's case (1993 Supp (2) SCC 433 : AIR 1993 SC 1014) do not constitute “Law declared” by the Supreme Court on the subject, Justice Dhanuka in dealing with the objections raised by the counsel for defendant No. 1 on this issue observed and held:—
“Our Supreme Court has expressed its own view on the subject in para 99 of its judgment in Elizabeth's case while discussing the development of admiralty in India and comparing the same with English and American law on the subject. I respectfully take the same view. I am not prepared to hold that any error has crept in judgment of R.M Sahai, J. inadvertently or otherwise while tracing the history of English law on the subject and formulating his learned opinion on the subject in para 93 of his judgment. The view expressed by the Supreme Court on the issue under consideration may not be in conformity with the prevailing decisions of English Courts. With respect, that does not matter. The Apex Court was not bound to take the same narrow view as English Courts have taken in respect of range of claims to which maritime lien extends. This Court is also not so bound. It is just and reasonable that the view expressed by our Supreme Court in the above referred decision be followed by Indian High Courts without any endeavour to narrow it down. According to well known work of Thomas on Maritime Liens (page 13), the claim currently recognised by English Courts on giving rise to maritime liens are:—
(a) Damage done by a ship
(b) Salvage
(c) Seamen's wages
(d) Master's wages and disbursements
(e) Bottomry and respondentia
The last sub-para of para 3 at p. 13 of the said work reads as under:—
“The categories of maritime liens identified above represent the ‘principal’ or proper maritime liens. There exist other maritime liens which arise by implications from various statutory enactments and these are discussed later.”
Our Supreme Court has expressed a view to the effect that the range of claims giving rise to maritime liens is much wider and includes claim for supply of necessaries as to the ship. With respect, I take the same view.”
Justice Dhanuka has further stated:
“In this situation, I would prefer to be guided by the observations of the Supreme Court in preference to the observations made by the House of Lords in the above referred case.”
16. I have already accepted ‘the arguments of Mr. Pratap that the observations of Supreme Court (by Justice R.M Sahai) are neither ratio decidendi nor obiter dicta so far as question of maritime lien is concerned. The acceptance of that part of the judgment of the Supreme Court by Justice Dhanuka in Sigma Coatings BV's case (AIR 1995 Bom 281) cannot be accepted as laying in good law having binding force. However, the judgment of Justice Dhanuka is required to be held as non-applicable to the present case and other ground also.
17. Mr. Pratap has contended in this regard that the judgment of the Supreme Court in M.V Elizabeth's case (1993 Supp (2) SCC 433 : AIR 1993 SC 1014) was delivered on 26-2-1992 and judgment of Justice Dhanuka was delivered on 8-2-1995. However, on 6-5-1993 India became a signatory to the International Convention on Maritime Liens and Mortgages 1993 which was signed at Geneva and in this Convention only some specific maritime liens were recognised and supply of necessaries have not been recognised as maritime liens and hence the judgment of Justice Dhanuka is of no help in the present case. Mr. Pratap was contended that since the International Convention on Maritime Liens and Mortgages 1993 was not brought to the notice of either the Supreme Court or Justice Dhanuka in case of Elizabeth and Sigma Coatings BV respectively, the judgment of Justice Dhanuka in the case of Sigma Coatings BV (AIR 1995 Bom 281) was treated as being given per incuriam i.e given in ignorance of the terms of a statute or of a rule having the force of a statute. Therefore, the judgment of Justice Dhanuka was not applicable to the present case.
18. I find strong force in this argument of Mr. Pratap. He has produced copy of the International Convention on Maritime Liens and Mortgages, 1993 which shows that India was the signatory to this convention and it also shows that the maritime liens have been defined for Art. 4 which do not cover supply of necessaries on maritime liens. Article 4 of the said Convention is reproduced as under:—
“Article 4; Maritime Liens:
1. Each of the following claims against the owner, demise charterer, manager or operator of the vessel shall be secured by a maritime lien on the vessel:
(a) claims for wages and other sums due to the master, officers and other members of the vessel's complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel;
(c) claims for reward for the salvage of the vessel;
(d) claims for port, canal and other waterway dues and pilotage dues;
(e) claims based on port arising out of physical loss or damage caused by the operation of the vessel other than loss of or damage to cargo, containers and passengers' effects carried on the vessel.
2. No maritime lien shall attach to a vessel to secure claims as set out in sub-paragraphs (b) and (e) of paragraph 1 which arise out of or result from:
(a) damage in connection with the carriage of oil or other hazardous or noxious substances by sea for which compensation is payable to the claimants pursuant to international conventions or national law providing for strict liability and compulsory insurance or other means of securing the claims; or
(b) the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or waste.
19. Counsel for the plaintiffs could not contradict Mr. Pratap that India was the signatory to this convention and this convention was binding on India and further that Art. 4 which defines maritime lien has not taken into consideration or has excluded supply of necessaries as maritime. From the judgment of Justice Dhanuka it is clear that even though this convention was signed on 6-5-1993, the same was not brought to the notice of Justice Dhanuka when he has given his judgment in the case of Sigma Coatings BV on 8-2-1995 (reported in AIR 1995 Bom 281). Since this convention is an international convention on maritime liens and mortgages 1993 and since India was the signatory to the same, it is the convention having force of law and since the same was not brought to the notice of Justice Dhanuka when he decided the case of Sigma Coatings BV, the judgment of Justice Dhanuka has to be held as a judgment per incuriam and consequently same cannot be applied. Consequently, it has to be held that neither the judgment of Supreme Court nor the judgment of Justice Dhanuka in Sigma Coatings BV are of any help to the plaintiffs.
20. Since there is no legal support to the contentions of the plaintiffs that supply of necessaries constitutes maritime liens and since the plaintiffs have failed to prove that apart from Art. 4 of the International Convention on Maritime Liens and Mortgages, 1993, something more can be considered by the Court as constituting maritime liens, the issue is required to be answered in the negative and against the plaintiffs. I, therefore, pass the following order on Issue No. 6:—
It is held that the plaintiffs-company has failed to prove that in respect of their claim they have maritime lien on the defendants-vessel.
The remaining part of issue No. 6 i.e whether such maritime lien survives the ownership of defendants-vessel does not survive.
Issue No. 6, therefore, answered against the plaintiffs and in favour of the defendants-vessel.
Certified copy expedited.
Order accordingly.