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Bombay High Court
U.M. Salgaocar And Bros vs M.V. Priyamvadan And Anr on 17 July, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:11097
adms 31 of 1995.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
ADMIRALTY SUIT NO.31 OF 1995
V.M.Salgaocar and Bro. Ltd.,
a Company registered under the
Companies Act, 1956 and having
its Registered Office at Salgaocar
House, Francisco Luis Gomes Road,
Vasco Da Gama, Goa - 403 802 .... Plaintiff
versus
1. M.V.Priyamvada, Motor Vessel
flying the Indian flag and
registered at the port of Bombay.
2. V.S.Dempo 1&Co. Ltd., Dempo
House, Panaji, Goa, Owners of
and all other persons interested
in the Vessel M.V.Priyamvada ... Defendants
Mr. Amrut M. Vernekar, for Plaintiff.
Mr. Sunip K. Sen with Mr. Udaybhanu Singh, Mr. Zain A.K. Najam-Es-Sani
i/by R.A.K. Najam-Es-Sani, for Defendants.
CORAM : N.J.JAMADAR, J.
RESERVED ON : 10 JANUARY 2025
PRONOUNCED ON : 17 JULY 2025
JUDGMENT :
1. This suit is instituted for the arrest of M.V.Priyamvada – Defendant No.1
Vessel, sale thereof and the application of the sale proceeds towards the
satisfaction of the claim of damages towards the loss suffered by the Plaintiff
on account of the damage to the Plaintiff’s Vessel – M.V.Sanjeevani due to
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collision by M.V.Priyamvada – Defendant No.1 Vessel.
2. The material averments in the plaint run as under :
2.1 The Plaintiff is a company registered under the Companies Act, 1956.
The Plaintiff owned a motorised Vessel M.V.Sanjeevani, which had been
rebuilt and converted into a trans-shipper. M.V.Sanjeevani flied the Indian flag
and was registered at the Port of Bombay. It was classed as an Oreloader
(Harbour Service) with NKK class notation NS/MNS.
2.2 M.V.Priyamvada – Defendant No.1 Vessel is a motor vessel flying the
Indian Flag, and was registered at the Port of Bombay. M.V.Priyamvada was
classed for coastal service with I.R.S. Class notation SUL/IY. Defendant No.2
was the owner of M.V.Priyamvada – Defendant No.1 Vessel.
2.3 M.V.Sanjeevani was afloat and securely anchored at her usual and
customary anchorage position at 264 decree * 1.28 Nautical Miles with
respect to Breakwater Light House since June 1993 at the Port of Mormugao,
Goa. The said vesel was refloated on 17 May 1994.
2.4 On 5 June 1994, M.V.Sanjeevani was riding anchor at the said position
and awaiting allotment of berth by the Mormugao Port Authority for carrying
out repairs. The Plaintiff avers, at the relevant time, the officers, crew and
complement onboard M.V.Sanjeevani were in excess of the minimum
mandatory requirement for a laid up ship.
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2.5 M.V.Priyamvada (D1) was operational during the entire shipping season
from September 1993 to May 1994 and was anchored about 0.18 Nautical
miles ahead of M.V.Sanjeevani at the position allotted by the Port Authorities.
The Plaintiff has annexed a rough sketch indicating the relevant positions of
the two vessels relating to the Breakwater Light House as of 5 June 1994.
2.6 On 5 June 1994, there were reports that a storm was expected. Officers
and crew of M.V.Sanjeevani were in a state of watch and alert. At around
16.50 hrs., the Master of M.V.Sanjeevani noticed a drop in the barometric
pressure to 991 milli bars indicating the onset of cyclonic conditions. There
was heavy westerly squall with wind force 5/6 accompanied by heavy rain and
considerable swell. The vessels closest to M.V.Sanjeevani were
M.V.Priyamvada – Defendant No.1 Vessel, at a distance of about 0.18
Nautical miles in the forward direction, and a Russian fishing trawler ‘Zweda
Chermoroya’ at a distance of about 0.13 Nautical miles on the port quarter.
2.7 Around 17.00 hrs., the Plaintiff asserts, the lookouts/watch keeping staff
stationed on M.V.Sanjeevani noticed that M.V.Priyamvada (D1) was dragging
her anchor and drifting with no control and no engines working, on a collision
course steadily towards M.V.Sanjeevani. An effort to contact M.V.Priyamvada
(D1) on VHF did not materalise. Warning was, thus, relayed through a sister
trans-shipper M.V.Gosalia Prospect. Yet, M.V.Priyamvada (D1) continued to
drag her anchor and uncontrollably drift without any engine movement on a
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collision course with M.V.Sanjeevani.
2.8 At about 15.10 hrs., M.V.Sanjeevani gave 5 short and 1 long warning
blasts on the air whistle. Yet, M.V.Priyamvada (D1) continued to approach
M.V.Sanjeevani on her port side, and, in the process, rode over and fouled the
anchor chain of M.V.Sanjeevani, and, thereby dislodged M.V.Sanjeevani’s
anchor which was deeply and securely embedded over the last one year.
2.9 The Plaintiff avers, the Master of M.V.Sanjeevani took steps to soften
the impact and contacted the bridge of M.V.Priyamvada (D1). To the shock
and surprise of the Master of M.V.Sanjeevani in the said cyclonic condition,
M.V.Priyamvada (D1) had neither its Master nor the first mate on board, but
was being commanded by Mr. Kiran, a raw and inexperienced second mate,
who was apparently overwhelmed by the situation and appeared immobilized
by complete panic. The Master and the first mate had both gone ashore. The
Master of M.V.Sanjeevani tried to reason with the second mate of
M.V.Priyamvada (D1). However, the latter was in a state of abject panic and
confusion. He was complying with the instructions received from his Master
and/or Chief Officer from shore.
2.10 As M.V.Priyamvada (D1) could not be controlled, around 17.15 hrs.,
M.V.Priyamvada (D1) started impacting heavily on the port side shell of
M.V.Sanjeevani, thereby causing severe and extensive damage to the ship
side plating, boat davits, life boat, bulwarks on bridge and Captain’s deck,
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etc., of M.V.Sanjeevani. M.V.Priyamvada (D1) continued to impact due to
rolling alongside and make heavy contacts with M.V.Sanjeevani for more than
10 minutes, without her engines even being operational. It was only at 17.25
hrs., M.V.Priyamvada (D1) succeeded in starting her engine and weighed in
her anchor and slowly began to move astern. In the process,
M.V.Priyamvada (D1) fouled the rudder of M.V. Sanjeevani while crossing the
stern of M.V.Sanjeevani. Stern lights of M.V.Sanjeevani were also destroyed.
2.11 The Plaintiff avers, due to inept and inexperienced manoeuvering,
M.V.Priyamvada (D1) caused M.V.Sanjeevani to drift. Eventually, M.V.
Sanjeevani reached shallow waters about 0.8 Nautical miles east of her
originally secured anchored position. M.V.Sanjeevani was left entirely at the
mercy of cyclonic weather in shallow waters with her rudder and propeller
fouled and damaged and her anchor wrenched loose. M.V.Sanjeevani finally
grounded at a location of 234 degree centigrade * 2.1 Nautical miles with
respect to the Breakwater Light House.
2.12 On account of the aforesaid collision, M.V. Sanjeevani suffered severe
damage. Evidently, the structural strength of M.V.Sanjeevani and its ability to
undertake an ocean / sea voyage has been critically, if not irreparably,
impaired.
2.13 The Plaintiff asserts that it was the negligence on the part of
M.V.Priyamvada (D1) and its handlers, which caused damage to M.V.
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Sanjeevani. The absence of the Master or Chief Officer onboard, as
warranted by Mormugao Port Trust Regulations, failure to take timely action to
prevent the uncontrolled drifting of M.V.Priyamvada (D1), collision with
M.V.Sanjeevani and lack of good seamanship and elementary principles of
navigation were pleaded as circumstances which would justify an inference of
negligence.
2.14 The Plaintiff, thus, asserts, the collision and the resultant grounding of
M.V.Sanjeevani were occasioned entirely due to the negligence, neglect,
default and wrongful acts of commission and omission on the part of
M.V.Priyamvada (D1) and the persons manning her and those in ownership
and control of M.V.Priyamvada (D1).
2.15 After adverting to the correspondence that had ensued between the
Plaintiff and Defendant No.2 and the difficulties in then ascertaining the exact
loss, it was averred that the Plaintiff was assessing loss/damage suffered on
replacement value basis, less scrap value of M.V.Sanjeevani that might be
realised. Thus, a suit for arrest of M.V.Priyamvada (D1), sale thereof and the
application of the sale proceeds towards the damages of Rs.13,33,70,000/-
together with interest thereon, or such amount as may be determined by the
Court and the consequential and incidental reliefs.
3. Defendant Nos.1 and 2 resisted the suit by filing the Written Statement
and a Counter Claim. At the outset, the Defendants contended that, on 5
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June 1994, M.V.Priyamvada (D1) was lying securely anchored in sheltered
area at inner anchorage of Marmugao Port. M.V.Sanjeevani was also
anchored at inner anchorage in the Marmugao Port. The relative position of
the two vessels was sought to be demonstrated by placing on record rough
sketch (Exh.1) annexed to the Written Statement.
3.1 On 5 June 1994, the Complement of deck officers on M.V.Priyamvada
(D1) was as per standard manning rules and practices and included a Master,
Chief Officer and 2nd Officer. On that day, in the forenoon, after the storm
single was taken down and it was declared that no adverse weather was
expected, the Master and the Chief Officer had gone ashore.
3.2 The Defendants contend, all of a sudden at about 17.00 hrs., the storm
hit the Port without warning. One vessel which was berthed in port parted her
moorings and became a danger to the berth. Various other vessels dragged
their anchors. More than five other vessels were affected by the
unprecedented cyclonic weather and drifted and grounded in Marmugao Port
anchorage.
3.3 The Defendants deny that the Second Officer was not competent to
man MV Priyamvada (D1) and that the engines of MV Priyamvada (D1) were
not ready. In fact, the engine of MV Priyamvada was ready by 17.10 hrs., and
were responding to bridge orders.
3.4 The Defendants contend, on account of the fault of MV Sanjeevani the
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collision occurred. First and foremost, MV Sanjeevani’s VHF was not
functioning at all. The facility of VHF was dis-functional and the Defendants
could not establish communication with MV Sanjeevani. The Defendants
contend, MV Priyamvada (D1) had taken all actions and precautions that
were possible under the circumstances then prevailing i.e. by giving extra
shackle, by her engine movements and by giving helm. Despite precautions,
MV Priyamvada (D1), her bridge brushed past the swung out life-boat, davit of
MV Sanjeevani, which was protuding over her port shipside. No evasive
action whatsoever was taken by MV Sanjeevani. MV Priyamvada (D1)
cleared MV Sanjeevani without any further contact whatsoever and anchored
beyond MV Sanjeevani. No damage was caused to MV Sanjeevani as a
consequence of the said contact because the vessels had made soft brushing
contact only.
3.5 It is contended that at 18.27 hrs., MV Sanjeevani without any warning
started to close-in on MV Priyamvada (D1) uncontrollably and collided with
MV Priyamvada (D1) on her port bow causing damage to both the vessels.
MV Sanjeevani had neither used her engines, nor her second anchor to arrest
her uncontrolled drift. Nor MV Sanjeevani had taken any other preventive
action whatsoever to avert the collision with MV Priyamvada (D1).
3.6 The Defendants categorically contend, collision took place due to total
lack of action, communication and response on the part of MV Sanjeevani,
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which was out of control, and in spite of the preventive actions taken by MV
Priyamvada (D1). After the impact, according to the Defendants, MV
Sanjeevani continued to drift further and had another collision with Zvedda
Chorna Morya and finally ran aground.
3.7 It further transpired that MV Sanjeevani had run aground on two
instances. M.V.Sanjeevani was in a state of disrepair, had ruptured and had
been aground since July 1993. M.V.Sanjeevani had been refloated by
salvors on or about 17 May 1994 i.e. after 10 months of the grounding.
M.V.Sanjeevani was refloated and kept afloat by bolting temporary patches
over the leaking shipsides and pumping out water. M.V.Sanjeevani’s
propulation machinery, including the main engines, was not in operational
condition. The engines of M.V.Sanjeevani were not in readiness and/or could
not be used and/or were not used throughout the incidents, on 5 June 1994.
The Plaintiffs has falsely asserted that the engines of M.V.Sanjeevani were
functioning.
3.8 The Defendants contend, M.V.Sanjeevani’s communication system/
VHF was not properly working. In substance, M.V.Sanjeevani had become
danger to the vessels around her. It had only Deck Officer as an Officer in-
charge.
3.9 Enlisting the alleged acts of omission and commission on the part of
M.V.Sanjeevani, the Defendants contend, it was the Plaintiff who was
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responsible for the collision and the resultant damage/loss caused thereby.
Therefore, the Defendants have filed a Counter Claim seeking damages to
the tune of Rs.10,95,330/- in accordance with the particulars of the Counter
Claim (Exh.4), consisting of cost of damages to the hull and cost of
replacement of damaged anchor chain.
3.10 The Defendants have also contended that without prejudice to the
aforesaid contentions, the Defendants were entitled to limit their liability in
accordance with the provisions of the Merchant’s Shipping Act, 1958 to the
tune of Rs.58,43,811.20.
3.11 In any event, according to the Defendants, there was no personal privity
or fault of Defendant No.2.
3.12 Defendants have, thus, sought a decree in the sum of Rs.10,95,330/-
against the Plaintiff and a declaration that the Defendant No.2 is entitled to
limit its liability to a sum of Rs.58,43,811.20 in respect of all the claims of
whatsoever nature arising out of and in relation to the collision between
M.V.Sanjeevani and M.V.Priyamvada (D1), on or about 5 June 1994.
4. The Plaintiff has filed written statement to the Counter Claim
controverting the contentions of the Defendants that the collision was on
account of the fault on the part of M.V.Sanjeevani. All the averments in the
Counter Claim which are adverse to the interest of the Plaintiff have been
denied.
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ISSUES:
5. In the wake of the aforesaid pleadings, by an order dated 28th March
2001, the learned Single Judge has framed the issues. By a further order
dated 14th August 2002, issue No.11 was recast. The issues are extracted
below with my findings against each of them for the reasons to follow :
Issue Issues Findings Nos.
1 Whether the Plaintiffs prove that the positions of the 2 In the affirmative
vessels M.V. Sanjeevani AND PRIYAMVADA at the times
material to the suit were as shown in Exhibit A to the
Plaint?
2 Whether the defendants prove that the respective positions In the negative
of the 2 vessels were at the times material to the suit as
shown in the sketch Exhibit 1 to their Written Statement?
3 Whether the Plaintiffs prove that the MV Sanjeevani was In the affirmative
refloated on 17/5/1994 after she had grounded in
June/July, 1993 and was afloat at her usual anchorage
position that she was on 5/6/1994 as alleged?
4 Whether the Plaintiffs prove:
a) That the condition of the MV Sanjeevani on 5/6/1994
such as not to have been a danger to vessels in her vicinity
in that –
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(1) her engines were adequately and effectively operative: Not to the extent
of controlling the
dragging vessel
(2) her main engines were on stand by at the material times
as stated in the plaint: Inconsequential
as engines were
never used
(3) She was not a dead ship at the material times:
In the affirmative
subject to the
condition of MV
Sanjeevani which
bears upon the
Plaintiff’s claim.
(4) her VHF and her communication system was in
effectively working order and condition and she could be In the negative.
contactable in any state of emergency.
b) that there was no failure on the part of the MV
Sanjeevani in alerting ships in her vicinity as to her true In the affirmative
condition and her inadequacies/deficiencies.
c) that there was no failure on the part of the MV
Sanjeevani in taking appropriate or any preventive or Partly in the
evasive steps to aver the contacts with the Priyamvada. affirmative
d) that the MV Sanjeevani did take all or any of the steps
to avoid the contacts or any precautionary measures, as Partly in the
stated in their plant. affirmative
e) that the MV Sanjeevani was manned with staff as
mentioned in paragraph 3(i) of the plaint and/or that she In the affirmative
was adequately manned as per the prescribed laws, rules
and applicable laws.
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f) that there was otherwise no failure or negligence on the
part of the MV Sanjeevani and/or the Plaintiffs in relation to In the negative
the 2 accidents and subsequent thereto.
5 Whether the Plaintiffs prove that the Defendants failed or
were negligent in :
a) not providing Master or Chief Officer on board as In the affirmative
required by the relevant Port regulations as alleged.
b) not taking timely action by starting engines, weighing in In the affirmative
achor and/or keeping safe distance, so as to prevent
uncontrolled drifting of the Priyamvada as alleged?
c) failing to take proper evasive steps to avoid the In the affirmative
contracts.
d) adopting wrong measures which contributed to the In the affirmative
accidents, (and if) what wrong measures.
e) failing to comply with the international regulations In the affirmative
relating to collisions, as alleged and if so which regulation
or regulations?
f) causing the accidents, damage, dislodging of anchor, Partly in the
fouling of rudder, resultant drift of the MV Sanjeevani and affirmative
her ultimate grounding as alleged.
6 Whether the Defendants prove that the accidents which In the negative
occurred on 5/6/1994 was caused due to unexpected
cyclonic storm striking the Port and harbour of Mormugoa
at 17.00 hours on 5/6/1994 and due to force majeure.
7 Whether the Plaintiffs prove that if so, what damage was Partly in the
caused to the MV Sanjeevani as a result of the 2 affirmative, to the
extent of
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accidents? compensation of
Rs.6 Crores with
50% contributory
neglience.
8 Whether the Defendants prove the damage caused to Not pressed
Priyamvada as a result of the 2 accidents?
9 Whether the Plaintiffs prove the efforts which they allege In the negative
were taken by them to refloat or salvage the MV
Sanjeevani as stated in their plaint, the costs and expenses
therefor?
10 In the event of the Defendants being held liable to blame In the negative
for the 2 accidents on 5/6/1994 or any of them, and for the
resultant damage arising there from, whether the
Defendants are entitled to limit their liability in terms of
Section 252 B of the Merchant Shipping Act?
11 Whether the 2nd Defendant prove that the occurrences of In the negative
collision of the vessel m.v. “PRIYAMVADA” with m.v. “MV
Sanjeevani” on 5.6.1994 giving rise to the claim against
them did not result from their actual fault and privity in
relation to the limitation of liability?
12 Do the Defendants prove that on the date of the accident, In the negative
the m.v. Priyamvada was manned by a fully certified crew
compliment described in paragraph 1(b) of the Written
Statement?
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13 Do the Defendants prove that weather conditions In the negative
mentioned in paragraph 1(e) of the Written Statement? for the purpose of
proof of Act of
God
14 Do the Defendants prove that various other vessels In the negative
dragged anchor and that 5 vessels were affected by the for the purpose of
unprecedented cyclonic weather as mentioned in para: (e) proof of Act of
of the Written Statement? God
15 Do the Defendants prove that they took the steps In the negative
mentioned in paragraphs 1(g) and (h)?
16 Do the Defendants prove that the VHF on the MV In the affirmative
Sanjeevani was not working as alleged in para 1(h) of the
Written Statement.
17 Do the Defendants prove that they took all possible actions In the negative
and precautions as stated in para 1(i) (j) and (k) of the
Written Statement.
18 Do the Defendants prove the allegations mentioned in para In the negative,
1(m) (n), (o) and (p) of the Written Statement? save and except
the condition of
MV Sanjeevani
19 Do the Defendants prove that the Plaintiffs are responsible In the negative
for the resultant collusion as set out in para 1(q) of the
Written Statement?
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EVIDENCE :
6. In order to substantiate their claim, the plaintiffs have examined four
witnesses, namely; Mr. Anil V. Salgoacar (PW1), who tendered his affidavit in
lieu of examination, but passed away before he could be cross-examined, Mr.
Mukesh Saglani (PW2), an officer of “SMIL”, Mr. Satish Seth (PW3), the
former Captain of M.V.Sanjeevani, and Mr. Anthony Brian D’Souza (PW4), the
electrical officer, who was on board the vessel M.V. Sanjeevani at the time of
the alleged collision.
7. In the rebuttal, the defendants have examined five witnesses, namely;
Narayan M. Prabhu Shelkar (DW1), Mr. Waman Mangesh Gaitonde (DW2),
Mr. Vijay Hiralal Kiran (DW3), the second officer, who was at the helm of the
vessel MV Priyamvada (D1) at the time of the alleged collision, Dr. Jalal
Basheer (DW4), the surveyor, and Captain Bruno D’Souza (DW5). The parties
have also tendered a number of documents in order to substantiate their rival
claims.
8. At the conclusion of the trial, I have heard Mr. Amrut Vernekar, the
learned Counsel for the plaintiff and Mr. Sunip Sen, the learned Senior
Advocate for the defendant, at length, in the presence of Captain Sudhir
Naphade and Captain V. K. Gupta, the Assessors appointed by the Court. The
Court has the benefit of the opinion of the Assessors.
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9. To begin with, it is necessary to note that the assessors have apprised
the Court that the evidence led by the parties does not fully equip the Court to
determine the precise nature of the collision between the vessels and the
liability for the same. Captain Sudhir Naphade highlighted the fact that, under
the Merchant Shipping Act, 1958, the Port Authority is empowered to conduct
inquiries into the navigation incident involving the vessels. The Port Authority
has not discharged its functions fully as the Deputy Conservator of Ports has
not prepared the Inquiry Report. Thus, the Court does not have the benefit of
statutory technical evidence, apportioning the causes of navigation incident.
10. Capt. V.J.Gupta has highlighted the insufficiency of the evidence by
apprising the Court that out of nine witnesses examined by the parties, only
two witnesses, namely, Mr. Anthony Brian D’Souza (PW4), the Electrical
Officer of MV Sanjeevani, and Mr. Vijay Hiralal Kiran (DW3), the Second
Officer of Priyamvada, were on board their respective ships at the material
time, and had first hand knowledge of the navigation incident. Even their
evidence, in the opinion of Captain V.J.Gupta, does not throw light on all the
technical and navigational aspects which bear upon the determination of the
liability. Thirdly, the absence of log books / written record navigation chart in
use by the vessels was also highlighted. In addition, the absence of
metrological data and contemporaneous photographs showing the contact
damage to the vessels hulls further deprived the Court of the relevant material
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to base its findings.
11. The Court proposes to evaluate the evidence on record keeping in view
the aforesaid aspects highlighted by the assessors and make an endeavour
to decide the issues that arise for determination.
12. To start with, the Court finds it appropriate to note few uncontroverted
facts. Firstly, there is not much controversy over the fact that the Port had
lowered the storm signal on the day of the incident. Secondly, the Master and
First Officer of Priyamvada were ashore at the material time. Thirdly, Mr. Vijay
Hiralal Kiran (DW3) was the Second Mate and took on the responsibility to
navigate Priyamvada. Fourthly, the engines of MV Sanjeevani were never
used, though there is serious controversy as to whether the engines of MV
Sanjeevani were adequately and effectively operative. Lastly, the fact that MV
Sanjeevani could not be salvaged as vessel, is rather indubitable.
Broad submissions :
13. Before evaluating the evidence qua each of the issues, it may be
apposite to note in brief the broad submissions canvassed on behalf of the
parties.
14. Mr. Vernekar would urge that the challenge to the locus of the plaintiff to
pursue the claim for damages for the loss of the vessel MV Sanjeevani, does
not deserve to be entertained as the defendant had opposed the prayer of
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impleadment of Salgaocar Mining Industries Pvt. Ltd as a plaintiff in place and
stead of the plaintiff, contending that the Plaintiff had, at best, a mere right to
sue, which cannot be transferred. Thereupon, by an order dated 8 th July,
2002 in Chamber Summons No.714/2002, the said chamber summons came
to be dismissed. The defendant, thus, cannot now be permitted to take a
summersault and urge that the plaintiff having divested its interest in MV MV
Sanjeevani, cannot maintain an action for damages.
15. Mr. Vernekar would strenuously urge that the evidence on record firmly
establishes that MV Sanjeevani suffered a total loss on account of the
collision for which MV Priyamvada (D1) was solely responsible. The sequence
of events clearly indicates that MV Priyamvada (D1) dragged MV MV
Sanjeevani by dislodging its anchor, damaged its stern gear and eventually
MV Sanjeevani was grounded in shallow waters. The collision occurred as
MV Priyamvada (D1) was not manned as per the Safe Manning Rules and the
command of MV Priyamvada (D1) was left with Mr. Vijay Kiran (DW3), a
novice and inexperienced Second Officer, who was neither authorized to take
such command nor capable of handling the vessel in such a critical situation.
16. Mr. Vernekar laid particular emphasis on the fact that the Master and
First Mate of MV Priyamvada (D1) were not on board the vessel when the
squall struck. There was no other navigating officer on board MV Priyamvada
(D1). In the absence of a proper complement of officers on board MV
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Priyamvada (D1), in accordance with the Safe Manning Rules, the vessel was
rendered unseaworthy. In the exigency of the situation Mr. Vijay Kiran (DW3)
could not take requisite action to aver the collision.
17. In contrast, Mr. Vernekar would urge, MV Sanjeevani had the
complement in excess of the safe manning requirements. All the requisite
steps to avert the collision were taken by the Master of the vessel. Referring
to the actions taken to avert the collision, Mr. Vernekar made an endeavour to
draw home the point that in the given situation MV Sanjeevani could not have
used its engine. Therefore, the thrust of the defence that MV Sanjeevani was
a dead vessel and a navigational hazard does not deserve countenance.
18. A painstaking effort was made by Mr. Vernekar to draw home the point
that the timeline of the occurrence clearly demonstrates that the defendants
have made an effort to improve their version to suit their convenience. The
various explanations sought to be offered on behalf of the Defendants with
regard to the occurrence, proved self contradictory, and, thus, rendered the
sequence of events, as propounded by plaintiff, preponderantly probable.
19. On the aspect of the quantum of damages, Mr. Vernekar would urge,
given the circumstances of the case and especially the grounding of MV
Sanjeevani in the shallow waters with extensive damage, rendering it beyond
salvage, the replacement value of the vessel would be the correct measure of
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damages. In the alternative, the insured value of the vessel would be the
measure of damages. Mr. Vernekar would urge the fact that the plaintiff could
not demonstrate with precision the actual loss suffered by the plaintiff does
not detract materially from the plaintiffs’ claim as, in any event, even in the
absence of proof of actual loss, the plaintiff is entitled to a reasonable
compensation. In the facts and circumstances of the case, the compensation
claimed by the plaintiff cannot be said to be unreasonable, excessive and
exorbitant, submitted Mr. Vernekar.
20. In opposition to this, Mr. Sen would submit that the suit for damages by
the plaintiff is wholly misconceived as it is the case of the plaintiff that it had
not suffered any loss and, in fact, “SMIL” had suffered the loss. At best, in
accordance with the consent terms in the suit to which the plaintiff was a
party, the plaintiff was to transfer MV Sanjeevani to “SMIL” at written down
value. No effort was made on behalf of the plaintiff to establish what was the
written down value. Therefore, the suit for damages on the premise that injury
was caused to the plaintiff is clearly untenable.
21. Mr. Sen would submit that the fact that the Master and First Mate of MV
Priyamvada (D1) were not on board at the time of the alleged collision cannot,
by itself, be the foundation of the liability. If the plaintiff failed to establish the
causative relationship between their absence and the alleged collision,
attributable to the negligence on the part of the officers, who manned MV
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Priyamvada (D1), the mere absence of Master and the chief officer cannot be
made the foundation of the claim for damages.
22. Mr. Sen urged with a degree of vehemence that the evidence on record
would indicate that MV Sanjeevani was a dead vessel. It was designated as
a navigational hazard. Referring to the historical facts regarding the prior
grounding, brief refloating and again laying up of MV Sanjeevani, Mr. Sen
would urge that the said vessel was not at all seaworthy. The inability to use
its engine by MV Sanjeevani throughout the period the squall lasted,
according to Mr. Sen, inexorably indicates that the MV Sanjeevani was a dead
vessel.
23. A strenuous effort was made by Mr. Sen to draw home the point that
there was no collision between MV Sanjeevani and MV Priyamvada (D1) in
the fashion sought to be projected on behalf of the plaintiff. Constructing the
sequence of events, Mr. Sen would urge the theory of MV Priyamvada (D1)
having run over and fouled the anchor of MV Sanjeevani was not borne out by
the material on record. In fact, the case that MV Priyamvada (D1) had fouled
and dislodged the anchor of MV Sanjeevani was not at all pleaded by the
plaintiff.
24. Mr. Sen would urge the principle of vis major governs the case at hand.
Incontrovertibly the storm signal was lowered by the Port Authority. Nobody
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expected the whether to take such ferocious shape, in a short period of time.
Many a vessels had dislodged their anchors. The situation was such that
nobody could have foreseen the event that unfolded or resisted those events
by any amount of care and skill.
25. On the aspect of damages, Mr. Sen reiterated that, the loss to the
plaintiff, at best, was the written down value of the vessel, which was not
brought on the record of the Court. Taking the Court through the
correspondence and the surveyor’s report, Mr. Sen would urge MV
Sanjeevani was incapable of refloating. Thus, the plaintiff cannot claim
replacement value. Insured value cannot be the measure of damages. In
these circumstances, the plaintiff is not entitled to any compensation.
26. The controversy between the parties essentially revolves around the
question as to whether there was collision between MV Sanjeevani and MV
Priyamvada and, if yes, what was the nature of the collision and, who was at
fault, or for that matter, who could have averted the collision.
Objection as to admissibility of evidence:
27. Before proceeding to appreciate the evidence, the issue of admissibility
of the evidence of Mr. Anil V. Salgoacar (PW1), who passed away before he
could be cross-examined and the submissions made by late Capt. J D’Silva
before the Conservator of Ports in the enquiry under Section 359 of the
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Merchant Shipping Act 1958 and otherwise in the wake of the navigation
incident deserve to be appreciated. By an order dated 14 th August 2002, this
Court directed the parties shall file their Affidavits in lieu of examination-in-
chief before the Commissioner. Pursuant to the said order, Mr. Anil V.
Salgoacar (PW1) filed the Affidavit in lieu of examination-in-chief before the
Commissioner. The documents were marked as Exhibits P/1 to P/93. The
Defendant raised objections to the acceptance of the Affidavit and the
documents. Subject to those objections, the Affidavit was accepted and the
documents were marked.
28. Mr. Sen, as the Commissioner records, declined to cross-examine (Anil
(P.W.1) as the Defendant had filed a Notice of Motion for the dismissal of the
Suit. The said Notice of Motion came to be dismissed by an Order dated 23 rd
January 2004. As Mr. Anil V. Salgoacar (PW1) passed away, he could not
cross-examined.
29. Mr. Vernekar would urge that the Defendant having declined to cross-
examine Mr. Anil V. Salgoacar (PW-1) and the documents having been
marked in evidence, the evidence of Mr. Anil V. Salgoacar (PW-1) deserves to
be accepted. Reliance was placed on the judgment of the Supreme Court in
the case of Sarwan Singh Vs State of Punjab1, wherein the Supreme Court
held that, it is rule of essential justice that whenever the opponent has
1 AIR 2002 SCC 3652.
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declined to avail himself of the opportunity to put his case in cross-
examination it must follow that the evidence tendered on that issue ought to
be accepted. The observations of the Calcutta High Court in the case of AEG
Carapier Vs AY Derderian2, on which also reliance was placed by Mr.
Vernekar, were approved by the Supreme Court.
30. There can be no quarrel with the aforesaid proposition. However, it may
not govern the facts of the case at hand with equal force. It could be urged
that the Defendant did not cross-examine, Mr. Anil V. Salgoacar (PW-1), on
that day, for a justifiable reason as they had filed a Notice of Motion.
31. The decision of a learned Single Judge of this Court in the case of
Banganga Cooperative Housing Society Ltd & Ors Vs Vasanti Gajanan
Nerukar & Ors,3 however, appears to govern the facts of the case at hand.
The situation which may arise where a witness dies after his examination-in-
chief is recorded and he could be cross-examined, was considered by the
learned Single Judge as under:
32. “First, where the witness is no longer physically
available, i.e., he has expired between the time of filing of
his Evidence Affidavit and the time for cross-
examination.8 The law in this regard is, I believe, well-
settled, and it is simply this: that where the testimony is
incomplete by reason of death or incapacity of the witness
2 AIR 1961 Calcutta 359.
3 2015 (5) Bom CR 813.
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before cross-examination, the evidence, admissible when
given, does not cease to be so merely on account of that
intervening factual circumstance. What probative or
evidentiary value is to be attached to this evidence is
another matter, and turns on the circumstances of each
case. A court may seek independent corroboration of that
evidence. It may accept it, albeit cautiously, and that is no
infirmity per se in the final decision. This was the view of
Mr. Justice H.R. Khanna as a learned single Judge of the
Delhi High Court in Krishnan Dayal Vs Chandu Ram
(1969 I.L.R. 1090) and I am in most respectful
agreement with that view.”
33. I am persuaded to respectfully follow and adopt the aforesaid
approach, in the matter of evidence of Mr. Anil V. Salgoacar (PW-1).
34. It would be contextually relevant to note that by an order dated 6 th
December 2023, this Court passed an order as regards the marking of the
documents, after hearing the parties on the aspect of admissibility of the
documents marked by the Court Commissioner.
35. As regards the reports submitted by late Captain J. D’Silva, and the
statements made before the Deputy Conservator of Ports, in the enquiry
under Section 359 of the Merchant Shipping Act, 1958, reliance placed by Mr.
Vernekar on the provisions contained in Section 33 of the Indian Evidence
Act, does not appear to be correct.
36. For the applicability of Section 33 of the Indian Evidence Act, all the
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three conditions must be satisfied. In the case of Sashi Jena And Ors Vs
Khadal Swain & Anr,4 the Supreme Court after extracting the provisions
contained in Section 33 of the Indian Evidence Act, enunciated the pre-
requisite for its applicability as under:
37. “8. From a bare perusal of the aforesaid
provision, it would appear that evidence given by a
witness in a judicial proceeding or before any person
authorized to take it is admissible for the purpose of
proving in a subsequent judicial proceeding or in a later
stage of the same judicial proceeding, the truth of the
facts which it states in its evidence given in earlier
judicial proceeding or earlier stage of the same judicial
proceeding, but under proviso there are three pre-
requisites for making the said evidence admissible in
subsequent proceeding or later stage of the same
proceeding and they are (i) that the earlier proceeding
was between the same parties; (ii) that the adverse party
in the first proceeding had the right and opportunity to
cross examine; and (iii) that the questions in issue in
both the proceedings were substantially the same, and in
the absence of any of the three pre-requisites afore-
stated, Section 33 of the Act would not be attracted. This
Court had occasion to consider this question in the case
of V.M. Mathew Vs V.S.Sharma & Ors (1995) 6 SCC 122,
in which it was laid down that in view of the second
proviso, evidence of a witness in a previous proceeding
4 (2004) 4 SCC 236.
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would be admissible under Section 33 of the Act only if
the adverse party in the first proceeding had the right
and opportunity to cross examine the witness.”
(emphasis supplied)
38. Nonetheless, reports submitted and statements ubmissions made by
late Captain J D’Silva, cannot be said to bereft of any evidentiary value.
Those statements would be admissible under Section 32 (2) of the Indian
Evidence Act, as the said statements were made by late Captial J D’Silva in
the ordinarily course of business and in-discharge of his professional duty as
the captain of MVSanjeevani, in the wake of the navigation incident. Those
statements made in proximity to the incident also have an element of
spontaneity and veracity.
ISSUE NOS. 1 AND 2 :
39. These issues primarily deal with the position of the vessels prior to the
alleged collision. The significance of these issues lies in the the relevance of
prelude to the occurrence, to the extent it bears upon the probabilities of the
case, and also in the correct appreciation of the evidence adduced by the
parties in regard to the collision between the vessels. The Plaintiff asserted
that the original anchored position of both the vessels on 5th June 1994,
before the alleged collision was as shown in Exhibit “A” to the Plaint, an
enlarged copy of which came to be produced at Exhibit “P1/80”. The Plaintiff
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asserts that MV Sanjeevani was at 264 degree * 1.28 Nautical Miles with
respect to breakwater Light house whereas the Defendant vessel was about
0.18 Nautical Miles ahead of MV Sanjeevani towards the west of the
breakwater.
40. On the contrary, the Defendants contend that MV Sanjeevani and MV
Priyamvada, at the material times, were in the positions as shown in the
sketch (Exhibit “I”) to the Written Statement.
41. Mr. Sen would urge that, the chart Exhibit “A” appended to the Plaint
was not proved in evidence on behalf of the Plaintiff. The enlarged chart
Exhibit “P/80” which was sought to be tendered in evidence of PW-1 is
materially distinct from the chart Exhibit “A” appended to the Plaint. Even
otherwise, since PW-1 could not be offered for cross-examination, and had no
personal knowledge of the incident, the said enlarged chart (Exhibit “P/80”)
has also also not been proved in evidence.
42. It is necessary to note that the averments in the Plaint, as regards the
relative position of the vessels, as on the day of occurrence, went
uncontroverted. In the Written Statement filed on behalf of the Defendants,
they chose not to deal with, much less specifically deny, the assertion of the
Plaintiff that the position of the respective vessels was as pleaded in
paragraph 3(c) of the plaint, with reference to the breakwater lighthouse
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43. Apart from non denial, in the pleadings, the contemporaneous
documents pressed into service by the Plaintiff, substantiate the claim of the
Plaintiff with regard to the position of two vessels. In the communication
dated 14th June 1994, (PW-1/81), addressed on behalf of the Plaintiff in
response to the letter dated 8th June 1994 of the Defendant No.1, the Plaintiff
has categorically stated the exact position of the two vessels relative to
breakwater lighthouse, while lodging a claim for damage and loss caused by
MV Priyamvada to MV Sanjeevani. It does not appear that in the reply to the
said communication, vide letter dated 24th June 1994 (Exhibit PW-1/24″), the
Defendants controverted the said claim of the Plaintiff in regard to the relative
position of vessels. Even in the surveyor’s Report dated 30 th June 1994,
(Exhibit “D-5/39”) (Tata Tea Limited ), the surveyor records that they were
informed by the Master of the MV Priyamvad that she had anchored in the
Inner Anchorage in position, Latitude 15° 24′ 88 N Longitude 43c 48′ 63E,
bearing 2780 x 1.06 miles from breakwater of Mormugao Harbour. Moreover,
the claim of Mukesh Saglani (PW2), as regards the relative position of the
vessels went unimpeached.
44. In the backdrop of the aforesaid material, especially the non-denial of
the claim of the Plaintiff, as regards the relative position of the vessels prior to
the occurrence, the objection on behalf of the Defendants that the Plaintiff
failed to establish the relative position of the vessels prior to the occurrence,
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does not hold any water.
45. Conversely, the Defendants made no endeavour to establish that MV
Priyamvada and MV Sanjeevani, at the material times were at the position as
shown in the sketch (Exhibit “I”). Neither an effort was made to establish the
said fact by leading evidence or by eliciting admissions in the cross-
examination of the Plaintiff’s witness.
46. Resultantly, I am inclined to answer Issue No.1 in the affirmative and
Issue No.2 in the negative.
Issue No.3 :
47. This issue also carries significance from the point of view of the
condition of MV Sanjeevani. Incontrovertibly, MV Sanjeevani was grounded
since June/July 1993 and the Port Authority was insisting on the Plaintiff to
take measures to refloat MV Sanjeevani. The Plaintiffs claimed that MV
Sanjeevani was refloated on 17th May 1994. To substantiate this claim, the
Plaintiff relied upon the communication addressed on behalf of the Plaintiff to
the Deputy Conservator, MPT, on 25th May 1994. In the said letter (Exhibit
“PW-1/52”), SMIL, informed the Deputy Conservator, MPT that MV
Sanjeevani was successfully floated on 17 th May 1994 at about 13.30 hours
by de-blasting water and since then MV Sanjeevani was freely floating at the
same location duly held by an anchor with adequate flotation margin.
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48. At this stage, it may not be necessary to delve into the submissions as
regards the condition of the vessel, evincible from the said communication,
banked upon by the Defendants. The said aspect can be considered while
determining the issue revolving around the condition of the vessel of MV
Sanjeevani. The communication dated 25th May 1994 (Exhibit “PW-1/52”)
constitutes a contemporaneous record which lends support to the claim of the
Plaintiff that MV Sanjeevani was refloated.
49. It would be necessary to note that the claim of the Plaintiff in regard to
the refloating of MV Sanjeevani was not specifically controverted on behalf of
the Defendants. In contrast, in the Written Statement, it was contended that
MV Sanjeevani had been refloated by salvors engaged by the Plaintiff on or
before 17th May 1994. The Defendants made an endeavour to lay emphasis
on the condition of, and the circumstances in which, MV Sanjeevani was
refloated to bolster up its defence that MV Sanjeevani was a dead vessel.
The factum of refloating of MV Sanjeevani on 17 th May 1994 was, however,
not seriously disputed.
50. The further claim of the Plaintiff that MV Sanjeevani was refloated at
the location which was her usual anchorage position was, however, stoutly
contested on behalf of the Defendants. An effort was made on behalf of the
Defendants to draw home the point that the position where MV Sanjeevani
was floated, was not an anchorage allotted to MV Sanjeevani. The mere fact
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that MV Sanjeevani was grounded at the same location does not imply that
the said location was an anchorage position allotted by the Port.
51. Whether the location where MV Sanjeevani was refloated was the
usual place of anchorage of MV Sanjeevani does not carry much
significance. The Plaintiff’s claim that the said location was MV Sanjeevani’s
usual anchorage position stems from its intent to establish that the anchor of
MV Sanjeevani had been embedded in seabed and thus MV Sanjeevani
firmly and securely held the same position. This claim of the Plaintiff warrants
consideration while determining the core questions in controversy. Subject to
the aforesaid consideration, I am inclined to answer Issue No.3 in the
affirmative.
Issue No.4(a)(1) :
52. In view of the uncontroverted position that the engines of MV
Sanjeevani were never used to control and navigate MV Sanjeevani at the
material times and an effort was made on behalf of the Plaintiff to offer
explanation as to why, in the given circumstances, engines could not have
been used (purportedly to avoid greater damage), the consideration as
regards the functionality of engines of MV Sanjeevani becomes confined to
the seaworthy condition of MV Sanjeevani and the alleged inability of MV
Sanjeevani to avert collision.
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53. Reliance was placed by the Plaintiff on the communication dated 25
May 1994 (Exh PW-1/52) to the Deputy Conservator of MPT to show that MV
Sanjeevani was refloated and was in a position to move to the vacant berth by
its own power and with the assistance of tugs. In addition, Captain Satish
Seth (PW3) and Mr. Anthony Brian D’Souza (PW4) deposed that when
surveyor of the Marine Mercantile Department had inspected the Vessel, the
engines of MV Sanjeevani were in full working condition.
54. Banking upon the letter dated 3 June 1994 (Exh.D-1/3) addressed by
the Deputy Conservator of MPT to SMIL, wherein it was recorded that when
the representative of Marine Department inspected MV Sanjeevani on 3 rd
June 1993, it was found that the Vessel’s VHF was not in working condition
and could not contact or be contacted by the signal station, it was submitted
that MV Sanjeevani was otherwise operational as no remarks as to the
engines being not in operation was made in the said report.
55. Mr. Sen strenuously submitted that there is a world of difference
between the term engines were “fully operational” and “adequately and
effectively operative”. The real test would be whether the engines of MV
Sanjeevani were in such condition as to use those engines to control and
navigate the vessel. Taking the Court through the manner in which Satish
Seth (PW3) and Mr. Anthony Brian D’Souza (PW4) fared in the cross-
examination, Mr. Sen urged that the witnesses have not stated the truth. Mr.
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Satish Seth (PW3), though claimed that, he was present on the vessel when
the first engine trial was done after the refloating, yet, he blamed his memory
to state whether the engine movement was entered in any log. Likewise, to a
pointed question as to where the vessel logs were kept after the navigation
incident, Mr. Satish Seth (PW3) feigned ignorance. Mr. Anthony Brian
D’Souza (PW4) boldly asserted that the engine control were entered into log
by either the Chief Engineer or any other person in the engine room.
However, the logs were not placed on record.
56. It would be contextually relevant to note that in the preliminary enquiry
before the Deputy Conservator of Ports, Mr. Bhagwat Kumar, Chief Engineer
of MV Sanjeevani replied that after the vessel was refloated, the main engines
were tried out once for short duration only. Upon being called upon to
produce record to the said effect, the Chief Engineer replied that though the
engine was turned on, on one occasion after refloating the vessel, the said
fact was not recorded in the official engine log.
57. It is also imperative to note that the Master of the Vessel informed the
Deputy Conservator of the Port in the said inquiry that he was not sure
whether the fuel on the vessel was sufficient to turn on the engines for at least
an hour.
58. If all the aforesaid factors are considered, in conjunction with the
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indubitable fact that the engines of MV Sanjeevani were not used at the
material times, either to avert the collision or to take MV Sanjeevani to safe
position after the collision till it was grounded, an inference become
inescapable that the engines of MV Sanjeevani were not adequately and
effectively operative to the extent of controlling the dragging vessel.
59. I am, therefore, inclined to answer Issue No.4(a)(1) accordingly.
Issue No.4(a)(2) :
60. It is the case of the Plaintiff that the Captain of MV Sanjeevani, after
noticing squally weather approaching at about 17.00 hrs., put on the radar
and gave orders to keep the engine on standby. The said claim was sought to
be substantiated by relying upon the testimony of Mr. Anthony Brian D’Souza
(PW4), who deposed that the Captain had given such orders to get the engine
standby.
61. In the light of the fact that, eventually the engines of MV Saneevani
were never used, the controversy as regards the engines of MV Sanjeevani
having been put on standby, pales in significance. The engines were to be
put on standby for the ultimate use of the engines to control and navigate MV
Sanjeevani. Thus, the determination of this issue would bear upon the
general condition of MV Sanjeevani and whether sound navigational practices
were resorted to by the Captain of MV Sanjeevani in the wake of the storm
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situation. Even if the case of the Plaintiff is construed rather generously
discounting the element of opportunity to Mr. Anthony Brian D’Souza (PW4),
who deposed about the time at which the engines came on standby, yet the
aspect as to whether the engines were on standby before the first impact
between MV Sanjeevani and Priyamvada, appears debatable.
62. The statement of Captain of MV Sanjeevani in the preliminary inquiry,
indicates that at about 17.00 hrs., he gave orders to keep the engines
standby. During the period 17.20 hrs. to 17.25 hrs., MV Priyamvada came
bodily alongside on port side of MV Sanjeevani and touched MV Sanjeevani
along the entire length. At about 17.25 hrs., MV Priyamvada moved out and
continued picking up anchor at the same time, coming close to port bow of
MV Sanjeevani and running over MV Sanjeevani’s port anchor and thereby
loosening of the hold of MV Sanjeevani’s anchor. It thus appears that before
the first impact, the engines of MV Sanjeevani were not on standby. As noted
above, this fact, in a sense, becomes inconsequential as the engines of MV
Sanjeevani were eventually never used.
63. I am, therefore, inclined to answer Issue No.4(a)(2) accordingly.
Issue No.4(a)(3) :
64. Mr. Sen urged with a degree of vehemence that MV Sanjeevani was a
dead ship. It was grounded for over 10 months at the same position. Its
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engine was not operational. It could not move by its own power. In the plaint
itself there was a clear and categorical admission that the MV Sanjeevani was
in a disabled state and its disability was known to all. Mr. Sen invited the
attention of the Court to the provisions contained in “Safety of Life at Sea
Convention” incorporated in the Merchant Shipping Act, 1958 to bolster up the
submission that in view of indisputable expiry of all important safety
certificates, MV Sanjeevani was but a dead ship.
65. In opposition to this, Mr. Vernekar would urge MV Sanjeevani had more
than requisite complement of crew and personnel on board. It was manned
according the Rules and circulars of MPT. At the material time MV
Sanjeevani’s engine was operational and on stand by. Thus, by no stretch of
imagination, could it be urged that MV Sanjeevani was a dead ship.
66. In paragraph 3(a) of the plaint it was averred that MV Sanjeevani was a
permanent and securely anchored fixture at the same location for about a
year. And her location, position and temporary disability was known to all
concerned. Whether the disability, referred to above, in the context of history
of grounding and condition of MV Sanjeevani was of such nature as to render
MV Sanjeevani a vessel which could not move on its own, warrants
consideration.
67. The fact that MV Sanjeevani was manned in accordance with Safe
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Manning Rules cannot be a complete answer to the aforesaid question. That
would, at best, be one of the facets of seaworthiness of MV Sanjeevani. The
attendant circumstances preceding the re-floating of MV Sanjeevani also
become relevant. By a communication dated 13th July, 1993 (PW-1/9), Deputy
Conservator, MPT, had put SMIL to notice that due to development of cracks
and grounding of MV Sanjeevani, she was bound to create navigational
hazard and endanger other ships anchored in the vicinity. In the
communication dated 19th August, 1993 (P-1/11) it was reiterated that MV
Sanjeevani was posing navigational hazard and endangered the safety of the
other vessels anchored in the vicinity.
68. The communication dated 25th May, 1994 addressed to the Deputy
Conservator, MPT, by SMIL also throws light on the condition of MV
Sanjeevani. While informing that MV Sanjeevani has been successfully
refloated, MPT was further apprised that some leakages were noticed and
temporary repairs were carried out and were being attended to by constantly
pumping out leakage water. The Port Trust was also requested to provide
assistance by allocating a vacant berth for bringing the vessel alongside by its
own power and with the assistance of the tugs for carrying out further repair
work to stop leakages arising from the temporary repairs done for floating the
vessel.
69. Section 3(37) of the Merchant Shipping Act, 1958 defines, ” “Safety
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Convention” as the International Convention for the Safety of Life at Sea
signed in London on 1st November, 1974 as amended from time to time.
Under Section 2(38), “safety convention certificate” means, inter alia;
“……
(v) a cargo ship safety equipment certificate,
(vi) a qualified cargo ship safety equipment certificate,
(vii) a cargo ship safety radio telegraphy certificate,
(viii) a cargo ship safety radio telephony certificate.
……..”
70. It would be contextually relevant to note that Mr. Mukesh Saglani (PW2)
conceded in the cross-examination that except certificate of Indian Registry
and Certificate of Classification, no other certificate was valid as of 5 th June,
1994. This admission gives heft to the submission of Mr. Sen that as of the
date of the collision MV Sanjeevani has not had valid important Safety
Convention Certificates.
71. These factors, if considered in juxtaposition with the grounding of the
vessel for over 10 months before it was refloated few weeks prior to the
navigation incident, in which MV Sanjeevani’s engine was never used, render
the claim of the plaintiff that MV Sanjeevani was fully operational rather
difficult to accede to. It is true that a definitive finding that MV Sanjeevani was
a dead ship may not be justifiably recorded. However, the condition in which
MV Sanjeevani was found at the material times bears upon the determination
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of the core issues. Thus, subject to the condition of MV Sanjeevani, Issue No.
4(a)(3) is answered in the affirmative.
Issue Nos. 4(a)(4) and 16:
72. As noted above, on 3rd June, 1994 MPT had informed SMIL that the
general inspection revealed that ship’s VHF was not in working condition and
could not contact or be contacted by signal station. The said condition of VHF
was in contravention of the harbour notice dated 2 nd June, 1994 (D1/3). SMIL
was advised to immediately keep a working VHF set with international
frequencies on board.
73. Mr. Vernekar would submit that the aforesaid letter was replied on 4 th
June, 1994 apprising the port, inter alia, that a hired VHF set was on board
the vessel.
74. The fact there was problem in VHF of MV Sanjeevani was
acknowledged by the Captain in his statement in the preliminary inquiry by
MPT. Thus, unable to get response from MV Priyamvada and the Port on
VHF the Captain claimed to have called Gosalia Prospect, another vessel. It
transpired that MV Sanjeevani was not receiving the replies on VHF. Anthony
D’Souza (PW4) also conceded in the cross-examination that MV
Sanjeevani’s, VHF was not functioning properly. It had problems. He went on
to concede that MV Priyamvada may not have been able to contact MV
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Sanjeevani on VHF.
75. The endeavour of Mr. Vernekar to wriggle out of the situation by
banking upon the reply to the letter of MPT dated 3rd June, 1994, appears
futile. The said reply (Exhibit-P1/81) was addressed on 14 th June, 1994, as is
evident from the date it bears and also the acknowledgment by MPT. Thus,
the claim that MV Sanjeevani had arranged to place on board a hired VHF set
to restore both way communications and a functional VHF was on board the
vessel on the day of the incident simply does not deserve countenance. In
fact, the said communication contains a clear and explicit admission that the
receiving on the VHF set became nonfunctional and messages could only be
transmitted by the vessel to the Port Signal Station and, thus, as an interim
arrangement Port Signal Station was requested to transmit all messages to
MV Sanjeevani via MV Gosalia Prospect. An inference is inescapable that the
VHF was nonfunctional at the material times. I am, therefore, inclined to
answer issue No.4(a)(4) in the negative and Issue No. 16 in the affirmative.
Issue No.4(b) :
76. The assessors, particularly Mr. V. K. Gupta, advised the Court that it
appeared that the equipments on MV Sanjeevani were ill-maintained and
inadequate. Apart from VHF, MV Sanjeevani did not even have a pair of
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binocular on board as conceded by the Captain before the Deputy
Conservator, MPT, that he had not seen the signal as he do not have
binoculars on board. These equipments were absolutely essential to keep a
proper look out.
77. Though the material on record indicates that there were certain
inadequacies and deficiencies, yet the fact that on 3 rd June, 1994 the vessel
was inspected by the Port Authorities and MV Sanjeevani was advised to
have a operational VHF and requisite man power in accordance with the safe
manning practices, indicates that as of the date of the incident, the Port did
not consider MV Sanjeevani to be a navigational hazard. This has to be seen
in the context of the claim of MV Sanjeevni that it had successfully refloated
and the said fact was informed to the Port Authority. Resultantly, it cannot be
said that the situation was such that a duty was cast on MV Sanjeevani to
alert ships in her vicinity as to her true condition and her
inadequacy/deficiencies. Consequently, it cannot be said that there was
failure or breach of duty on the part of MV Sanjeevani on the said count.
Hence Issue No. 4(b) is answered in the affirmative.
Issue No.4(e) :
78. In the plaint (paragraph 3(a)) the plaintiff has tabulated the minimum
immediate mandatory man power as per MPT requirement, and actual
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available man power then on board MV Sanjeevani. The evidence of Mr.
Satish Seth (PW3) and Mr. Anthony Brian D’Souza (PW4) that the personnel
on board MV MV Sanjeevani, as of 5 th June, 1994, were in excess of the
minimum mandatory requirement prescribed by MPT, could not be impeached
during the course of cross-examination. Thus, issue No.4(e) is required to be
answered in the affirmative.
Issue Nos.5(a) and 12 : (Not providing Master or Chief Officer on
board Priyamvada)
79. The fact that at the material time both the Master and Chief Officer of
Priyamvada were ashore and were not on board Priyamvada, is indubitable.
The parties were at issue as to what the consequences emanate from the
absence of Master or Chief Officer not being on board Priyamvada when the
navigation incident occurred.
80. Mr. Sen made a valiant effort to draw home the point that despite
absence of Master or Chief Officer on board Priyamvada, the liability for the
collision cannot be fastened on Priyamvada on the said count alone. A two
pronged submission was sought to be canvassed. First, there is a world of
difference between the vessel not being adequately manned by the owners
and the vessel being adequately manned, yet, at some point of time, few
personnel not being on board. Since the Defendant No.1 had provided crew
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in excess of the manning requirements, the mere fact that, at the material
time, the Master and Chief Officer were not on board, cannot be a ground to
fasten the liability on the Defendants. An effort was made to urge that the
action of the Master and Chief Officer in disembarking from the ship was
contrary to the instructions of the Defendants, and, therefore, the Defendants
cannot be held liable.
81. Second, the Plaintiff was enjoined to prove that there was negligence
on the part of the crew members at the helm of the Priyamvada, which
contributed to the collision. In the absence thereof, the fact that the Master
and Chief Officer were not on board Priyamvada, cannot be the basis to
sustain the liability of the Defendants.
82. The first submission of Mr. Sen deserves to be noted to be repelled.
The submission looses sight of the devastating impact of the absence of
Master or Chief Officer on board Priyamvada in its safe navigation, especially
in a critical storm situation. There are clear and categorical admissions on the
part of Narayan M. Prabhu Shelkar (DW1) that, Mr. Vijay Kiran (DW3) and his
experience did not make him eligible and competent to take command of
Priyamvada as per the safe manning rules. Nor the certificate of competency
of Vijay Kiran (DW3) was acceptable to MPT to allow him to take command of
the Vessel. It was further conceded that the presence of Master, Additional
Master / Chief Officer would have made difference in preventing Priyamvada’s
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drift and its collision / impact with MV Sanjeevani. It was further conceded
that proper complement was not on board on the deck side of Priyamvada.
83. Mr. Vijay Kiran (DW3) was candid enough to concede that the
certificate of competency he possessed did not allow him to have
independent command of the vessel without Master or Chief Officer. What
exacerbates the situation is the categorical admission by Mr. Vijay Kiran
(DW3) that, prior to the date of occurrence, he had never taken independent
command of any vessel for navigation, maneuvering or shifting.
84. The explanation sought to be offered on behalf of the Defendants that
the Master or Chief Officer went ashore as the storm signal was lowered,
does not merit acceptance. Both the assessors were in unison that the
Master and Chief Officer could not have left Priyamvada under the control of
the Second Mate. The assessors reckoned that the hauling down of storm
signal is an insufficient justification for the Master and other senior Officers to
have left the ship, especially during the monsoon climatic conditions.
85. Nor the endeavour on behalf of the Defendants to salvage the position
by asserting that Vijay Kiran (DW3), was taking instructions from the Master
via VHF provides a satisfactory explanation. Mr. Vijay Kiran (DW3), who had
never independently navigated, maneuvered or shifted the ship taking
instructions via VHF from the Master, who had no benefit of “on the scene
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appraisal of the situation” could hardly be a satisfactory substitute for the
personal presence of the Master on board the ship.
86. The second limb of the submission of Mr. Sen that the Plaintiffs must,
nonetheless, establish the negligence on the part of the crew on board
Priyamvada at the time of the navigation incident appears attractive at the first
blush. However, the submission crumbles traceless if considered through the
enormity of the situation caused by the squall with an uncertified navigation
personnel at the helm of Priyamvada.
87. The aspects of bad maneuvering, navigational errors and alleged
incompetence of Vijay Kiran (DW3) which contributed to the navigation
incident would be considered a little latter. Subject to the said consideration,
I am inclined to hold that the Defendants failed or were negligent in not
providing Master or Chief Officer on board Priyamvada at the material time.
Resultantly, issue No.5(a) is answered in the affirmative, and issue No.12 in
the negative.
Issue Nos.4(c), (d), (f) and Issue Nos.5(b), (c), (d), (e) and (f), Issue
Nos.15, 17 and 18 :
88. All these issues pertain to the navigation incident and the version of the
Plaintiff and the counter version of the Defendants as regards the manner of
the collision, the causes therefor, action or inaction on the part of the vessels,
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which allegedly contributed to the navigation incident and the resultant
damage to the respective vessels. In the backdrop of the incident, the
evidence adduced by the parties and the material on record, it may not be
possible to determine these issues independently and in water-tight
compartments. The evidence overlaps. The finding on one issue may bear
upon the finding on another, and, even obviate the finding on the
corresponding issue(s). Moreover, the Court would be required to take into
account the opinion of the assessors in the matter of the appraisal of
navigation incident, causes therefor and the apportionment of the liability for
the same. Since the assessors have also advised the Court and submitted
their written opinion with regard to the navigation incident as a whole, I deem
it proper to determine all these issues by common reasoning.
89. In order to appreciate the manner in which the navigation incident
occurred, as a starting point, reference to the contemporaneous notes /
correspondence by the Master / person in charge of the vessels becomes
necessary. In the note of protest document (Exh.PW-1/83) lodged by MV
Sanjeevani’s Captain on 6 June 1994, late Capt. D’Silva reported the incident,
as under :
“At around 1725 hrs. M.V.Priyamvada apparently had her
engine working, moved ahead and picked up her anchor
while crossing our bows and making another physicalSSP 48/98
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contact at the stem causing further damage at around 17.45
hrs. While continuing her forward movement across our
bow M.V.Priyamvada heavily ran over MV Sanjeevani’s
anchor chain cable thereby causing likely damage to the
chain. Thereafter, I noticed that M.V.Priyamvada suddenly
started moving aft of M.V.MV Sanjeevani and in the process
crossed our stern, made heavy physical contract and
damaged MV Sanjeevani’s stern light at 18.10 hrs.
Subsequently, I noticed that M.V.Priyamvada continued to
drag her anchor and fouled MV Sanjeevani’s rudder with
M.V.Priyamvada’s anchor chain, even though
M.V.Priyamvada was found to be using her engine.”
90. In the communication of even date to the Shipping Manager of SMIL
(PW-1/56), Capt. D’Silva narrated the navigation incident, as under :
“By 1715 Hrs. M.V. Priyam Vada was alongside us on the
port side and bodily touched along our whole length. She
remained alongside till 1725 Hrs. whilst she was getting her
main engines ready. When alongside, she severely damaged
our boat davits and boat, bullworks on bridge and captain’s
deck, part of loader arm, a pilot lader and caused a number
of holes in way of No.3 Wing Tank (Port), No.2 Wing Tank
(Port) and No.1 Wing Tank (Port). Further damages are yet
to be ascertained.
By 1725 Hrs. M.V. Priyam Vada had her engines ready and
picked up her anchor and moved ahead crossing our bows
and touching the nose of our vessel causing damage at 1745
hrs. She also ran over our anchor cable probably causing
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damage or loss of anchor. Thereafter, Priyam Vada moved
Aft. Of us and crossed our stern and at 1810 Hrs. touched
our stern and damaged our stern light.
M.V.Priyam Vada had fouled her anchor chain with our
raddar propeller and was found using engines etc., in the
process damaging our stern light.
At 1800 hrs. when I took a fix and realized the Priyam Vada
had bodily dragged us to a position nearly 0.8 miles Aft. Of
our original position and had loosened the hold of our anchor
so our vessel started dragging. The second anchor was
dropped at 1810 Hrs. to about 2 shackles but the vessel kept
dragging till it grounded in its present position, which is
break-water 2.15 miles by 234.”
91. In the report of accident dated 6 June 1994 (page 1261, a part of
Exh.D-5/39), Vijay Kiran (DW3), the Second Officer of Priyamvada, narrates
the incident, as under :
“We were anchored in posn. From Bk. Water 278 0 x 1.06′
At 1630 hrs. I observed whether deteriorating and wind
picking up. I went forward to check the cable, at 1645 hrs.
I paid out one shackle to make it 6 shackles in water as a
safety measure. At 1700 hrs the weather worsened. We
decided to make the engines ready. I found we were
dragging on slowly to MV Sanjeevani, which was on our
stbd. Qtrs. 1710 hrs. comm’d heaving anchor, strg. tried
out. S.B.B. was given and the vessel was dragging on to
MV Sanjeevani and we had come very close to soften theSSP 50/98
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contact. I used engine at the same time. 1720 hrs. we
made contact. Our (S) side to (P) side of Sanjeevaji. The
vessel was still dragging and (S) quarter made contact with
MV Sanjeevani’s (P) life boat which was swung out. I gave
D slow ahead and tried to soften the blow and get my bows
in, so that my stern moves away from MV Sanjeevani.
Upto this time, MV Sanjeevani did not make any moves
being on one anchor and cold ship (without engines). Also
MV Sanjeevani was not responding to VHF calls.
At 1722 hrs., the anchor was aweigh. I tried to keep clear
of MV Sanjeevani by using my engines. At 1720 hrs., I
gave full astern and fully cleared my vessel from MV
Sanjeevani and dropped my P anchor. At 1739 hrs. my
Master contracted me on VHF from fishing vessel Matsya
Shakti and was throughout in touch guiding me. As I found
more strain was coming on the chain. I dropped 2 nd anchor
i.e. (S) anchor @ 1756 hrs. and I was maintaining my posn.
With help of engines. At 1827 hrs. I found suddenly MV
Sanjeevani was dragging her anchor and coming on to us
speedily. I gave my engine and helm to avoid the heavy
contact and soften the impact. But MV Sanjeevani made
contact with our (P) bow with her (S) bow and damaged
our rollers and bullwark on (P) side and then safely moved
astern of my vessel.”
92. If the reports of the Captain of MV Sanjeevani and Mr. Vijay Kiran
(DW3) are compared and contrasted, an element of unanimity is discernible
upto to the point of the first contact. By and large, the officers at the
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command of the respective vessels are in unison that at 17.00 hrs, weather
worsened. There is, indeed, dispute with regard to the action taken by the
crew on board the respective vessels and the exact time at which those
actions were taken. However, late Captain D’Silva and Mr. Vijay Kiran (DW3)
reported that there was first contact between Priyamvada and MV Sanjeevani
around 17.20 hrs. For Captain D’Silva, by 17.15 hrs., Priyamvada was
alongside MV Sanjeevani on the port side and bodily touched along the whole
length of MV Sanjeevani. Priyamvada was along side MV Sanjeevani till
17.25 hrs. For Mr. Vijay Kiran (DW3), at 17.20 hrs., Priyamvada made
contact with its starboard side to the port side of MV Sanjeevani.
93. In the light of the aforesaid sequence of events upto to the first contact,
if the report of accident (Exh.D-5/39) is perused, the following facts emerge :
(1) at 17.00 hrs., Mr. Vijay Kiran (DW3) realized that Priyamvada was
dragging on slowly towards MV Sanjeevani;
(2) at about 17.10 hrs., Mr. Vijay Kiran (DW3) commanded heaving
anchor;
(3) Priyamvada was dragging on to MV Sanjeevani;
(4) Priyamvada came very close to MV Sanjeevani and to soften the
contact, Mr. Vijay Kiran (DW3) claimed to have used the engines, before the
first contact, (this is a major point of controversy);
(5) Even after the first contact, Priyamvada was still dragging and its
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starboard quarter came in contact with MV Sanjeevani’s port side lifeboat.
(6) Mr. Vijay Kiran (DW3) claimed to have given command of dead
slow ahead and tried to soften the blow and got MV Priyamvada’s bows in so
that its stern moved away from MV Sanjeevani.
(7) Upto that time, according to Mr. Vijay Kiran (DW3), MV
Sanjeevani did not make any move being on one anchor and a cold ship
(without engines) and MV Sanjeevani was not responding to VHF calls.
94. Mr. Vernekar and Mr. Sen made a painstaking effort to demonstrate as
to how the counter version propounded by Defendants and the Plaintiff,
respectively, is incorrect. Referring to the timeline and the normal time
required to perform the tasks deposed to by the witnesses, an endeavour was
made to demonstrate that counter version of the rival party is improbable. A
large part of the cross-examination of the witnesses of the rival party was also
directed to disprove the counter version. However, in my considered view, an
elaborate reference to the facts as elicited in the cross-examination of the
witnesses is not warranted.
95. From the accident report of Mr. Vijay Kiran (DW3) and the evidence on
record, few facts indubitably emerge. First and foremost, after the weather
worsened, Priyamvada dragged its anchor. Dragging commenced at about
17.00 hrs. It was realized that Priyamvada was dragging on MV Sanjeevani
which was on the starboard side of Priyamvada. This shows that Mr. Vijay
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Kiran (DW3) was fully cognizant of the presence of MV Sanjeevani and the
imminent danger of Priyamvada colliding with MV Sanjeevani. Thirdly, there
was an interval of about 20 to 25 minutes since the time Priyamvada started
dragging its anchor to the first contact with MV Sanjeevani. Fourthly,
Priyamvada continued to drag its anchor even after the first contact.
96. As noted above, there is a serious controversy over the second contact
and the third contact which the Defendants alleged. Before appreciating the
evidence and the position which emerges, it may be necessary to note few
provisions of the Merchant Shipping (Prevention of Collisions at Sea) Rules,
1975, framed by the Central Government in exercise of the powers conferred
by sub-section (1) of Section 285 of the Merchant Shipping Act, 1948. Rule 3
of the Regulations, inter alia, defines ‘vessel not under command’ and
‘underway’, as under :
“(f) The term “vessel not under command” means a vessel
which through some exceptional circumstances is unable to
manoeuvre as required by these Rules and is therefore
unable to keep out of the way of other vessel.”
(i) The word “underway” means that a vessel is not at
anchor, or made fast to the shore, or a ground.”
97. Rule 5 provides for Look-out, as under :
“Every vessel shall at all times maintain a proper look-out by
sight and hearing as well as by all available means
appropriate in the prevailing circumstances and conditions soSSP 54/98
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as to make a full appraisal of the situation and of the risk of
collision.”
98. Rule 7 incorporates the duties as to the assessment of risk of collision.
It reads as under :
“Risk of Collision :
(a) Every vessel shall use all available means appropriate to
the prevailing circumstances and conditions to determine if risk
of collision exists. If there is any doubt such risk shall be
deemed to exist.
(b) Proper use shall be made of radar equipment if fitted and
operational, including long-range scanning to obtain early
warning of risk of collision and radar plotting or equivalent
systematic observation of detected objects.
(c) Assumption shall not be made on the basis of scanty
information, especially scanty radar information.
(d) In determining if risk of collision exists the following
considerations shall be among those taken into account :
(i) such risk shall be deemed to exist if the
compass bearing of an approaching vessel does not
appreciably change;
(ii) such risk may sometime exist even when on
appreciable bearing change is evident, particularly when
approaching a very large vessel or a tower when approaching a
vessel at close range.”
99. Rule 8 deals with actions to avoid collision. It reads as under :
“Action to avoid collision –
(a) Any action taken to avoid collision shall, if the
circumstances of the case admit, be positive, made in ampleSSP 55/98
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time and with due regard to the observance of good
seamanship.
(b) Any alteration of course and/or speed to avoid collision
shall, if the circumstances of the case admit, be large enough
to be readily apparent to another vessel observing visually or
by radar; a succession of small alterations of course and/or
speed should be avoided.
(c) If there is sufficient sea room, alteration of course along
may be the most effective action to avoid a close-quarters
situation provided that it is made in good time, is substantial
and does not result in another close-quarters situation.
(d) Action taken to avoid collision with another vessel shall
be such as to result in passing at a safe distance. The
effectiveness of the action shall be carefully checked until the
other vessel is finally past and clear.
(e) If necessary to avoid collision or allow more time to
assess the situation, a vessel shall slacken her speed or take
all way off by stopping or reversing her means of propulsion.”
100. If the evidence on record is appraised in the light of the aforesaid
Prevention of Collision Regulations, the assessment of the assessors,
especially that of Capt. Gupta, that both the vessels did not maintain proper
look-out appears justifiable. As noted above, Priyamvada was not manned in
accordance with the Safe Manning Rules at the material time. The Master
and the Chief Officer were ashore. Mr. Vijay Kiran (DW3) was the only
navigating officer on board. It would not have been possible for Mr. Vijay
Kiran (DW3) to maintain continuous alert watches from the bridge and ensure
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that the vessel was maintaining her position and be aware of other ships and
traffic in the vicinity at all times. MV Sanjeevani, though had a Master, yet it
appeared that there was no other navigating officer. MV Sanjeevani’s
equipments were ill-maintained and inadequate. Poor look-out for want of the
navigational officers and equipments, is by and large, attributable to both the
vessels.
101. Since Priyamvada first dragged her anchor, it may be appropriate to
evaluate the acts and omissions on the part of the crew on board Priyamvada
with a view to avoid collision, keeping in view the duties expected of the
dragging vessel. Firstly and prominently, the very act of leaving Priyamvada
under the command of an uncertified and inexperienced navigating officer
was in itself fraught with grave and imminent risk. Secondly, the evidence on
record indicates that, being the only navigating officer, Mr. Vijay Kiran (DW3),
was not in a position to maintain 24/7 watches from the bridge and when the
weather deteriorated he was in the Chart room (Q.No.108). It also appeared
that Mr. Vijay Kiran (DW3) failed to detect the dragging of Priyamvada early
enough to take effective preventive action. Thirdly, the claim of Mr. Vijay Kiran
(DW3) that the Master of the Vessel was in constant touch with him, and he
was taking instructions from the Master via VHF indicates that, on the one
hand, Mr. Vijay Kiran (DW3) did not possess the skill and experience to
handle the critical situation, and, on the other hand, the instructions by the
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Master via VHF, if acted upon, were again fraught with the risk of assessment
of the situation not being based on first hand knowledge. Fourthly, that
though Mr. Vijay Kiran (DW3) noticed change in weather at 16.30 hrs., he
ordered payout of one shackle of chain at 16.45 hrs. only. Fifthly, Mr. Vijay
Kiran (DW3) decided to get engines ready only after the weather worsened at
17.00 hrs.
102. One gets an impression that timely action was not taken by Mr. Vijay
Kiran (DW3) even after noticing the worsening weather. Delay in use of
engines of Priyamvada also assumes critical significance. Even if the claim of
Mr. Vijay Kiran (DW3) that the engines were ready at 17.10 hrs., is taken at
par, discounting objections on behalf of the Plaintiff that the evidence on
record suggest that the engines could not have been ready before 17.30 hrs.,
and well after the first contract, yet, it is imperative to note that, Mr. Vijay Kiran
(DW3) claimed to have put the engines on ‘dead slow ahead’ at 17.20 hours
only. At best, this could have been done only moments before the collision
as the evidence on record suggest that Priyamvada had the first contact with
MV Sanjeevani around 17.20 hrs., if not at 17.15 hrs.
103. It would be contextually relevant to note that Dr. Jalal Basheer (DW4),
surveyor examined by the Defendants, conceded in the cross-examination
that the engines of Priyamvada were started after the first impact. Mr.
Basheer (DW4) went on to concede that Priyamvada had not heaved its
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anchor and the anchor was fully down till the impact of Priyamvada with MV
Sanjeevani.
104. In the light of the aforesaid sequence of events and evidence, the delay
in use of the engines when Mr. Vijay Kiran (DW3) realized that Priyamvada
was dragging at 17.00 hrs., till the first impact, even though the engines were
allegedly ready at 17.10 hrs., is rather inexplicable. Pertinently, as extracted
above, Mr. Vijay Kiran (DW3) had realized that Priyamvada was dragging on
MV Sanjeevani, and, yet, till the first impact, the engines of Priyamvada were
not used. The assessors advised the Court that Priyamvada should have
used its engines at an earlier point of time and with its highest power, with
appropriate helm, to increase the distance between the ships and to ease the
strain on the anchor chain and prevent further dragging. Failure to pay out
more shackles on the port anchor and drop the second anchor, despite the
stated Standing Instructions of the Master to drop the second anchor, also
manifested inefficient seamanship and manoeuvering.
105. During the course of the cross-examination, Mr. Vijay Kiran (DW3)
attempted to offer an explanation that he considered it inadvisable to drop the
second anchor as the port anchor had already been dragging and had lost
grip, and, thus, he did not comply with the Standing Instructions to drop the
second anchor. The assessors informed the Court that the said explanation
is hollow.
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106. At this juncture, it would be necessary to note that Mr. Vijay Kiran
(DW3) conceded in the cross-examination in unequivocal terms that
Priyamvada was able to clear off MV Sanjeevani only after 9-10 minutes by
giving astern movement of Priyamvada’s engine. This admission implies that
for 10 minutes, Priyamvada was along side MV Sanjeevani, while both the
vessels were rolling / pitching against each other. This admission also gives
credence to the report of Capt. D’Silva that at 17.25 hrs., Priyamvada
apparently had her engines working, moved away and took up her anchor
while crossing MV Sanjeevani’s bow and making another physical contact at
the stern causing further damage at around 17.45 hrs.
107. Mr. Gupta, the Assessor, has also highlighted the poor intra-ship
communication between the bridge and engine room and bridge and fore-
castle of Priyamvada. This assessment is based on the evidence which
indicates that Mr. Vijay Kiran (DW3) was required to personally go back and
forth the bridge and fore-castle to communicate with other crew members,
and, to handover walkie-talkies. This poor intra-ship communication
prevented Mr. Vijay Kiran (DW3) from being on the bridge and making full
appraisal of the situation and take charge of the vessel and the requisite
action to avoid the collision.
108. Both the Assessors were in unison on the point that Priyamvada, under
the command of Mr. Vijay Kiran (DW3), an inexperienced Second Mate,
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exhibited complacence, incompetent seamanship and navigational skills.
This Court is persuaded to agree with the assessment of the assessors.
109. This propels me to the evaluation of the acts and omissions on the part
of MV Sanjeevani towards her duty to avert the collision. It is pertinent to note
that Mr. Vijay Kiran (DW3) has reported that MV Sanjeevani was holding on to
its anchor till after the first contact and disengagement of Priyamvada from
MV Sanjeevani by use of former’s engine. Mr. Vijay Kiran (DW3) also
reported that MV Sanjeevani did not make any move upto that point. In fact, it
is the case of Defendants that MV Sanjeevani was a dead vessel, unable to
manoeuver on its own. MV Sanjeevani was also not responding to the VHF
calls.
110. On the aspect of deficiency in look-out, MV Sanjeevani appeared to be
ill-equipped. The evidence has revealed that the vessel’s compass was
unreliable; MV Sanjeevani did not have any binocular on board; MV
Sanjeevani’s VHF could only transmit, but not receive the messages. As
noted above, a feeble attempt was made to account for the non-availability of
VHF by offering an explanation that the hired VHF was installed, which was
demonstrably incorrect, and by asserting that the communication was
established via a sister ship; which was also found far from satisfactory.
What materially impairs the case of MV Sanjeevani is the failure to use the
engines throughout the storm and till it came to be grounded. Though the
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Plaintiffs asserted, and also adduced evidence that the engines were on
standby at 16.50 hrs., at no point of time, the engines were used.
111. An endeavour was made to drag home the point that the engines were
not used to avert greater damage. It defies comprehension that as to what
greater damage the Master of MV Sanjeevani professed to avoid while there
was an imminent danger of collision by Priyamvada and grounding of the
vessel after it continued to drift for over two hours post impact. The
evidentiary value of the statement recorded by the Deputy Conservator of
Port in an inquiry under Section 359 of the Act, 1958, may be debated.
However, the statement of Capt. D’Silva that he was not sure as to whether
there was sufficient quantity of fuel to operate the main engine, at least for an
hour, detracts materially from the case of the Plaintiffs that the engines of MV
Sanjeevani were not used to avert greater damage.
112. The Plaintiffs claimed, Captain of MV Sanjeevani noticed that
Priyamvada was dragging on MV Sanjeevani. The collision was imminent.
No preventive action apart from giving long and short whistles and putting
fenders was apparently taken to avert the collision. The assessors advised
the Court that the crew on board MV Sanjeevani could have slipped the MV
Sanjeevani’s own anchor chain and cleared out of the area since her engines
were said to have been on standby since 16.50 hrs. The explanation sought
to be offered that MV Sanjeevani would have taken a long time to lift the
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anchor as it chains had a lot of kinks and the anchor had embedded into mud,
because MV Sanjeevani had been anchored in the same position for over 10
months, in the opinion of the assessors, does not constitute a valid ground for
the masterly inaction by the Master of the Vessel. Having approached the
Court with a case that MV Sanjeevani had maintained a vigilant look-out and
noticed Priyamvada dragging on it around 15.00 hrs., MV Sanjeevani could
have taken appropriate preventive action.
113. The thrust of the submission of Mr. Vernekar was that Priyamvada
fouled the anchor chain of MV Sanjeevani, and, thus, anchor got uprooted
and MV Sanjeevani drifted. The Court must record that not only there is a
serious dispute between the parties with regard to the case of Priyamvada
fouling the anchor chain of MV Sanjeevani, but also Captain Naphade and
Captain Gupta, the assessors, differed in their assessment on this point. In
the assessment of Captain Naphade, the second physical contact of
Priyamvada and its bottom hull hitting hard MV Sanjeevani’s taut anchor cable
underneath, undoubtedly transmitted MV Sanjeevani’s cable – vibrations to
MV Sanjeevani’s anchor at sea-bed. This led to MV Sanjeevani’s anchor
becoming free of mud / sea bed.
114. Mr. Gupta disagreed and offered explanation as to why in his opinion
Priyamvada’s anchor did not foul the anchor chain of MV Sanjeevani.
115. In the view of this Court a definitive finding on this contentious issue is
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not absolutely warranted for the determination of the controversy. There is
adequate material on record to indicate that there were in the least two
contacts between Priyamvada and MV Sanjeevani. First contact lasted for
about 10 minutes. In a cyclonic weather condition, a squall with wind blowing
at high speed and MV Sanjeevani being on its sole anchor, the cause of the
uprooting of the anchor, in a sense, becomes secondary. There was a
definite cause and effect relationship between the thuds of Priyamvada on MV
Sanjeevani and the dislodging of MV Sanjeevani’s anchor from the sea bed.
116. The aforesaid being the position as regards the acts and omissions on
the part of Priyamvada and MV Sanjeevani, in avoiding the collision, the
blame is required to be apportioned. The matter cannot be determined
without appreciating the prime cause of the first impact. Indisputably,
Priyamvada dragged its anchor and drifted. Mere dragging of anchor, in the
then prevailing weather conditions, may not, by itself, sustain the weight of the
entire liability. However, it is the acts and omissions thereafter, till the first
impact, that assume significance in ascertaining the cause of the collision and
fastening the liability.
117. In the case of the Velox (Supra), a case of dragging collision, both
Velox and Viking Monarch were at anchor. The Plaintiff alleged that the crew
on board the Velox was negligent, as they failed to keep good look-out, failed
to keep the Velox under proper or any control; improperly caused or allowed
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her to collide with the Viking Monarch; failed to take any adequate engine
and/or helm action to keep her clear of the Viking Monarch. The Defendant
raised defence of inevitable accident. In that context, the Court held that the
Velox ought not to have dragged her anchor in the first instance and if
appropriate precaution be taken, she could have avoided the dragging and
even if it could be said that the Velox was not to blame for dragging her
anchor in the first instance, the Velox ought to have been much quicker to use
her engine to arrest the dragging.
118. The decision emphasises the duty of the dragging vessel to arrest
further dragging by taking timely preventive action including slipping of
second anchor and use of engine and helm action.
119. In the case of Exeter City V/s. Sea Serpent5 there was a collision
involving three vessels. The Court held that, first of all Sea Serpent dragged.
That was prima facie evidence of negligence. In that case, a submission was
canvassed on behalf of Sea Serpent which had dragged on Exeter City that
noticing Sea Serpent dragging towards Exeter City, the latter did nothing until
Sea Serpent was close to her and that she ought at an earlier stage by
engines and helm, to have given herself a sheer away. The Court found the
submission untenable as sheering away during the whole gale and strong tide
was fraught with risk. Thus, the entire blame was attributable to Sea Serpent.
5 Lloyd’s List Law Reports 423
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120. The aforesaid decision, strongly pressed into service by Mr. Vernekar,
may not govern the facts of the case with equal force. In the case at hand,
there is material to indicate that MV Sanjeevani’s anchor was uprooted about
17.45 hrs. MV Sanjeevani drifted for over two hours before it came to be
grounded in shallow waters. Inaction on the part of MV Sanjeevani to use the
engines even after its port anchor was dislodged and it had started to drift, is
the critical distinguishing factor.
121. In the case of Gerda Toft6, again a collision caused by dragging of an
anchor, the Admiralty Division held that it may be that a seaman cannot help
his anchor dragging in certain circumstances, but what he can do, and what
he has a duty to do, is to keep a good look-out and take prompt measures to
stop the dragging if and when it does occur. The failure of the Gerda Toft to
take timely measures, in that case, was was due to bad look-out. As both the
officers were in the chartroom at the material time, and the only look out was
that of the extremely ineffective seaman who remained on deck, the Court
ruled Gerda Toft was to blame, not so much for dragging her anchor, as for
the fact that during a substantial period of time, she failed to take action to
stop dragging her anchor.
122. The aforesaid decision underscores the principle that even if some
allowance is to be granted to a vessel that drags her anchor, the liability for
6 Lloyd’s List Law Reports 249
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the damage caused to another vessel on which the first vessel drags on, and
collides with, would turn upon the actions taken to avert further dragging and
eventual collision. Both the absence of the requisite action as expected, in
the circumstances of the given case, to arrest further dragging and the
timeliness of such action, become relevant. If it could be demonstrated that
the crew on board the dragging vessel either failed to take requisite action or
took action belatedly, the liability cannot be contested. The Defendants
claimed that after the impact with MV Sanjeevani, Priyamvada could safely re-
anchor. If that was the case, there was no reason for Priyamvada to take
preventive action, (which it took later on to safely re-anchor) before it colluded
with MV Sanjeevani. The Defendants failed to comply with the Merchant
Shipping (Prevention of Collisions at Sea) Rules, 1975.
123. Ordinarily, it is not an answer that the vessel on which the first vessel
drags on should have taken action to avoid the collision. A number of
variables come into play when evasive action is expected of the second
vessel. The distance, the time, the visibility and the situation in which the
second vessel is anchored, all assume importance.
124. In the case at hand, the Plaintiffs are required to account for the
inaction not from the point of view of averting collision, but arresting
subsequent drifting of MV Sanjeevani. It is the case of the Plaintiffs that for
over two hours after MV Sanjeevani dragged its anchor, it drifted and
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ultimately grounded in shallow waters. There is hardly any explanation for
not using the engines of MV Sanjeevani to arrest further drifting of MV
Sanjeevani and take control thereof.
125. At this stage, the condition in which MV Sanjeevani was then found
becomes relevant. Indisputably, MV Sanjeevani was grounded for over 10
months at the same position before it was refloated prior to few weeks of the
occurrence in question. The engines of MV Sanjeevani were allegedly tested
only once and that too for a brief period, after it was refloated. Captain of MV
Sanjeevani reported that he was not sure as to whether MV Sanjeevani had
sufficient fuel to run the main engine for at least one hour, and, whether MV
Sanjeevani was under Class. The letters addressed on behalf of SMIL to the
Port Authority on 13 May 1994 (Exh.P-3/112A) and 25 May 1994 (PW-1/52)
revealed the then condition of MV Sanjeevani. In the letter dated 13 May
1994, as regards the future plan, it was categorically stated that MV
Sanjeevani was beyond economical repairs, and, thus, it had to be taken to a
ship breaking yard for scrapping. In the letter dated 25 May 1994 also, there
is a reference to leakages and constant pumping out of leakage water and the
requirement of tugs for bringing the vessel to a vacant berth for carrying out
further repairs to stop leakages.
126. If the aforesaid condition of MV Sanjeevani is appraised in the light of
how ill-equipped MV Sanjeevani was, including the absence of adequate fuel,
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an inference becomes justifiable that the grounding of MV Sanjeevani
resulting in a total constructive loss cannot be wholly attributed to
Priyamvada. Therefore, issue Nos.4(c) and (d) are required to be answered
partly in the affirmative. Issue No. 4(f) deserved to be answered in the
negative. Issue Nos.5(b), (c), (d) and (e) are answered in the affirmative and
Issue No. 5(f) partly in the affirmative. Issue Nos.15 and 17 are required to be
answered in the negative. Issue No.18 is also required to be answered in the
negative, save and except the condition of MV Sanjeevani, which bears upon
the determination of the quantum of damages.
Issue Nos.8 and 19 :
127. In view of the findings on the aforesaid issues, the Defendants failed to
establish that the Plaintiffs are responsible for the collision and are liable for
damages and loss caused to the Defendants. Suffice to note that, in support
of the claim that Priyamvada had re-anchored, and, thereafter, MV Sanjeevani
dragged her anchor and colluded with Priyamvada, and, thereby caused
damage to its anchor chain, the Defendants have not led satisfactory
evidence. In fact, during the course of the final arguments, Mr. Sen fairly
submitted that the Defendants do not press the Counter Claim on account of
the same having become insignificant. Thus, Issue No. 8 stood not pressed,
and Issue No.19 is answered in the negative.
Issue Nos.6, 13 and 14 – Act of God / Inevitable accident :
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128. Mr. Sen submitted that the totality of the circumstances would lead to
an inexorable inference that the dragging was the result of ‘vis major’. It was
submitted that the vessels in question were not the only vessels which drifted
in the exceptional cyclonic condition. Several ships dragged anchor in that
squall. Reliance was placed on the report of Dr. Jalal Basheer (DW4) to show
that, apart from MV Sanjeevani and Priyamvada, five more vessels had
drifted and/or grounded due to cyclonic weather. Since storm signal was
lowered four hours before the storm in question struck, the Defendants were
entitled to believe that there was no possibility of any storm. Therefore, there
was no reasonable possibility of anticipation of the storm, urged Mr. Sen.
129. Mr. Sen further submitted that, it is an admitted position that the
weather conditions were exceptional at the material time. Therefore, the
Defendants cannot be held liable for the Act of God, or, at best, inevitable
accident. To buttress these submissions, Mr. Sen placed a very strong
reliance on the judgments of the Supreme Court in the cases of Vohra
Sadikbhai Rajakbhai and Ors. V/s. State of Gujarat and Ors. 7 and State of
Uttar Pradesh and Ors. V/s. Mcdowell and Company Ltd.8
130. Mr. Vernekar joined the issue by advancing a submission that the
reliance on behalf of the Defendants on the aforesaid pronouncements is
completely misconceived. If the aforesaid judgments are read in their correct
7 (2016) 12 SCC 1
8 (2022) 6 SCC 223
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perspective, they support the case of the Plaintiffs. Mr. Vernekar would urge,
the Master and the owner of Priyamvada were expected to anticipate that
there was reasonable possibility of such occurrence during the monsoon,
especially when the storm signal was hoisted on immediate preceding three
days at the port. It was submitted that every unexpected wind and storm
does not insulate the tort feasor from the liability if there was reasonable
possibility of anticipation.
131. Mr. Vernekar would further urge that the defence of inevitable accident
also does not hold any ground. Since the collision was primarily on account
of the absence of the Master on board Priyamvada and the navigation of
Priyamvada by Mr. Vijay Kiran (DW3), an inexperienced and incompetent
Second Mate, by no stretch of imagination, could it be urged that the collision
was inevitable, despite reasonable care and caution and skill expected of the
Master of Priyamvada in the given circumstances.
132. In P. Ramanatha Aiyar Advanced Law Lexicon, the Act of God is
described, as under :
“Act of God (Vis Major) : an overwhelming, unpreventable
event caused exclusively by forces of nature, such as an
earthquake, flood, or torando. The definition has been
statutorily broadened to include all natural phenomena that
are exceptional, inevitable, and irresistible, the effects of
which could not be prevented or avoided by the exercise of
due care or foresight. 42 USCA & 9601(1). – Also termed actSSP 71/98
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th
of nature: act of Providence (Black, 7 Edn., 1999).
The expression ‘act of God’ signifies the operation of
natural force free from human intervention, such as lightning.
It may be thought to include such unexpected occurrences of
nature as severe gale, snowstorms, hurricanes, cyclones and
tidal-bures and the like. But every unexpected wind and
storm does not operate as an excuse from liability, if there is
a reasonable possibility of anticipating their happening. An
act of God provides no excuse, unless it is so unexpected
that no reasonable human foresight could be presumed to
anticipate the occurrence, having regard to the conditions of
time and place known to be prevailing at.”
133. In the case of The Divisional Controller, KSRTC V/s. Mahadeva
Shetty9, the Supreme Court enunciated that The expression “Act of God”
signifies the operation of natural forces free from human intervention, such as
lightening, storm etc. It may include such unexpected occurrences of nature
as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like.
134. In Vohra Sadikbhai Rajakbhai and Ors. (supra), the Supreme Court
after referring to the rule of strict liability recognized in Rylands V/s.
Fletcher10, expounded the juridical connotation of ‘act of God’ as under :
“22. There are two exceptions to the aforesaid rule of strict liability,
which were recognized in Rylands v. Fletcher itself, viz.:
(a) where it can be shown that the escape was owing to the plaintiff’s
default, or9 (2003) 7 SCC 197
10 (1868) LR 3 HL 330SSP 72/98
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(b) the escape was the consequence of vis major or the act of God.
An act of God is that which is a direct, violent, sudden and irresistible
act of nature as could not, by any amount of ability, have been
foreseen, or if foreseen, could not by any amount of human care and
skill have been resisted. Generally, those acts which are occasioned
by the elementary forces of nature, unconnected with the agency of
man or other cause will come under the category of acts of God.
Examples are: storm, tempest, lightning, extraordinary fall of rain,
extraordinary high tide, extraordinary severe frost, or a tidal bore
which sweeps a ship in mid-water. What is important here is that it is
not necessary that it should be unique or that it should happen for the
first time. It is enough that it is extraordinary and such as could not
reasonably be anticipated. We would like to discuss a few cases
having bearing on this issue with which we are confronted in the
instant appeal.
135. In the case of Mcdowell and Company Ltd. (supra), after adverting to
a number of precedents, including the decisions in the cases of The
Divisional Controller, KSRTC V/s. Mahadeva Shetty (supra) and Vohra
Sadikbhai Rajakbhai and Ors. (supra), the Supreme Court reiterated the
legal position as regards the defence of ‘Act of God’. In addition, the
Supreme Court also considered the scope of ‘inevitable accident’ as a ground
of exception to the liability. It was enunciated that the question to be posed in
cases where the defence of inevitable accident is taken is, whether the
avoidance of accident would have required the degree of care, exceeding the
standard demanded by law, and if the Defendant despite having attended on
all such normal and reasonable requirements could not have prevented the
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accident in question.
136. In the case at hand, as noted above, there is inexplicable failure on the
part of the Defendants in leaving the vessel under the command of the person
who was neither qualified nor experienced to navigate the vessel, even in
normal circumstances, let apart the storm situation. Secondly, there are
admissions to the effect that the presence of Master and Chief Officer on the
Vessel at the material time, would have made a significant difference. Thirdly,
as noted above, Mr. Vijay Kiran (DW3) was, in a sense, overawed by the turn
of events, and did not take requisite action which was expected in the given
circumstances, as the assessors have advised the Court. Therefore, the mere
fact that the storm signal was lowered would not be a justification to keep
aside the guard as Priyamvada was duty bound to maintain proper lookout
and take action to avert the impending collision.
137. In any event, the broad submission that the exceptional climatic
condition and storm situation constituted an act of God cannot be readily
accepted. Whether by resorting to the care and skill expected of a seaman, in
the given circumstances, the dragging of Priyamvada and the collision with
MV Sanjeevani, even after Priyamvada dragged its anchor could have been
averted, is the question.
138. As noted above, the assessors have advised the Court that Mr. Vijay
Kiran (DW3) did not initiate measures which were expected of the skilled
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Captain in the given situation. In this context, reliance placed by Mr. Vernekar
on the judgment in the case of The Velox11 appears well founded. In the said
case, involving dragging of the Velox and its resultant collision with Viking
Monarch, the defence of inevitable accident was raised. Repelling the said
defence of inevitable accident, the Court held that, even if it could be said that
the Velox was not to blame for dragging her anchors in the first instance,
nevertheless the situation called for a look-out of the utmost vigilance. In
pursuance of her duty in that respect, the Velox ought to have been quick to
appreciate that she was dragging, and, having discovered that she was
dragging, she ought to have been quick to take steps to arrest her dragging,
although the measures demanded by the situation may be regarded as
exceptional, nevertheless they were no more than those required of a seaman
of ordinary care and skill, having regard to the exceptional weather conditions
prevailing.
139. In the face of the material on record, especially the acts and omissions
on the part of Mr. Vijay Kiran (DW3) and the crew on board Priyamvada and
the inexplicable absence of the Master and Chief Officer, the defences based
on the exceptions of act of God and inevitable accident, are not worthy of
acceptance. I am, therefore, not inclined to accede to the submission of Mr.
Sen that the navigation incident was either the result of vis major or amounted
11 (1955) Vol. 1 376
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to an inevitable accident. Issue No. 6 is thus answered in the negative. Issue
Nos. 13 and 14 are also answered in the negative for the purpose of proof of
Act of God.
Issue Nos.10 and 11 – Limitation of Liability :
140. Mr. Sen would submit that, in any view of the matter, the Defendant
No.2 is entitled to limit its liability in view of the provisions contained in Section
352-A of the Merchant Shipping Act, 1958. Amplifying the submission, Mr.
Sen would urge, in the matter of limitation of liability, which is a well
recognized feature of admiralty law, the pivotal issue would be, whether the
navigation incident occurred on account of actual fault or privity of Defendant
No.2. There is no pleading on the aspect of actual fault or privity of the owners
of Priyamvada. Moreover, the Defendants have led evidence to demonstrate
that the owners of Priyamvada had given a clear and categorical instructions
to maintain manpower according to the Safe Manning Rules. The fact that the
Master and Chief Officer disembarked from the ship contrary to the Standing
Instructions would not be sufficient to fasten actual fault or privity to the owner
of Priyamvada. Therefore, Defendant No.2 is entitled to limit its liability. It
was submitted that the tonnage and statutory rate to determine the limit of the
liability have not been disputed by the Plaintiffs, and, thus, there is no
impediment in limiting the liability of Defendant No.2.
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141. In contrast to this, Mr. Vernekar submitted with tenacity that no case to
invoke the provisions contained in Section 352-A of the Act, 1958 has been
made out. Since the navigation incident occurred prior to 1 February 2003,
Mr. Vernekar would urge, the unamended provisions of Section 352-A of the
Act, 1958, would govern the case at hand. That being the position, according
to Mr. Vernekar, the Defendants would be entitled to make the claim to limit
the liability only if they prove that the navigation incident resulting in the loss
to the Plaintiffs was without actual fault or privity of Defendant No.2.
142. It was submitted that the Defendant No.2 has miserably failed to
discharge the onus of proving that the occurrence giving rise to the claim has
not resulted from his actual fault or privity. No evidence as such was led to
discharge the said onus. Even otherwise, Defendant No.2 did not resort to
the procedure prescribed for setting up of limitation fund under Section 352-C
of the Act, 1958. Thus, the issue Nos.10 and 11 deserve to be answered in
the negative, submitted Mr.Vernekar.
143. The limitation of liability is indeed a well recognized concept in the
admiralty jurisdiction. The avowed purpose of limitation of liability is to protect
the owner of the Vessel against large claims far exceeding the value of the
ship and cargo which can be made against the Vessel and the owner all over
the world in case the Vessel is involved in an occurrence causing damage to
cargo, another vessel or loss of any other property or life or personal injury. It
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is in the nature of a ‘defensive’ action.
144. In the case of World Tanker Carrier Corporation V/s. SNP Shipping
Services Pvt. Ltd. and Ors.12, the Supreme Court expounded the nature of
limitation action in the context of the challenge to the jurisdiction of the
Bombay High Court in entertaining such action. The observations in
paragraph Nos.16 and 17 read as under :
“16. The right of an owner to bring a limitation action is
governed by Part X-A of the Merchant Shipping Act, 1958.
The whole purpose of limitation of liability is to protect an
owner against large claims, far exceeding the value of the
ship and cargo, which can be made against him all over the
world in case his ship meets with an accident causing
damage to cargo, to another vessel or loss of personal life or
personal injury. A limitation action, though it is normally filed
in the admiralty jurisdiction of a court, is somewhat different
from an ordinary admiralty action which normally begins with
the arrest of the defaulting vessel. The vessel itself, through
its master is a party in the admiralty suit, and the plaintiff
must have claims provable in admiralty against the vessel. In
the case of an action for limitation of liability, it is the personal
right of the owner of the vessel to file a limitation action or to
use it as a defence to an action against him for liability. it is a
“defensive” action against claims in admiralty filed by various
claimants against the owner of the vessel and the vessel. A
limitation action need not be files in the same forum as a
liability action. But it must be a forum having jurisdiction to
12 (1998) 5 SCC 310
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limit the extent of such claims and whose decree in the form
of a limitation fund will bind all the claimants.
17. In the case of Volvox Hollandia 13, the English Court
describing the natures of a limitation action observed that the
purpose of limitation proceedings is, of course, to obtain a
decree in ram against all claimants for a single sum limited to
the amount of a limitation fund. Referring to the Brussels
Convention of 1957, the court referred to Article 4 which
provides that the Rules relating to the constitution and
distribution of the limitation fund, if any, and all Rules of
Procedure shall be governed by the national law of the State
in which the fund is constituted.”
145. Brief legislative history and development of law in regard to the
limitation of the liability may be apt. Being the signatory to the Brussels
Limitation Convention of 1957, the precursor of the Convention of 1976, India
introduced Part XA to provide for limitation of liability by Act 25 of 1970. Part
XA suffered significant amendments under the Amendment Act 63 of 2002,
which came into force with effect from 1 February 2003. Before the said
amendment, Section 352A of the Merchant Shipping Act, 1958 provided for an
exception to the right to limit the liability by providing that the owner of a sea
going vessel may limit his liability in respect of the claims arising from named
occurrences unless the occurrence giving rise to the claim resulted from the
actual fault or privity of the owner. It was also provided under sub-section (2)
of Section 352A that the burden of proving that the occurrence did not result
13 (1988) 2 Lloyds’ LR 361
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from his actual fault or privity shall be on the owner. Post amendment of
2002, italicised portion does not find place in sub-section (1) of Section 352A
and sub-section (2), (in the aforesaid terms) stands deleted.
146. Article 4 of the Convention, 1976, reads as under :
Article 4 – Conduct barring limitation
“A person liable shall not be entitled to limit his liability if it is
proved that the loss resulted from his personal act or omission,
committed with the intent to cause such loss, or recklessly and
with knowledge that such loss would probably result.”
147. The distinction in the matter of the nature of fault on the part of the
owner and on whom the onus lay, under the Convention 1976 and the
unamended provisions of Act, 1958, is of critical salience. The Convention of
1976 while providing for conduct barring limitation or breaking of limitation
cast a very high degree of proof, to deprive a person liable of the right to limit
the liability. Under the unamended Act of 1958, a person liable would be
deprived of the right to limit the liability, if the occurrence giving rise to the
claim resulted from the actual fault or privity of the owner. In contrast, the
Convention of 1976 incorporates a higher degree of culpability, by providing
that the loss ought to result from personal act or omission, committed with
intent to cause such loss, or recklessly and with knowledge that such loss
would probably result. The latter part of Article 4 of the Convention touching
upon the mental element or recklessness bordering on wantonness coupled
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with knowledge, in effect casts an almost impossible onus to prove to the
contrary. Secondly, the onus is on the claimant who opposes the limitation of
liability.
148. Keeping in view the aforesaid rationale behind the principle of limitation
of liability and the distinction in Part IX post 2002 amendment, re-adverting to
the facts of the case at hand, a cumulative consideration adverted to above,
hardly justifies an inference that the Defendant No.2 succeeded in
discharging the onus to prove that the occurrence giving rise to the claim did
not result from the actual fault or privity of Defendant No.2.
149. The submission that there was Standing Instructions to maintain
requisite complement on board Priyamvada and the Master and Chief Officer
disembarked from Priyamvada in violation of the Standing Instructions, and,
therefore, the Defendant No.2 cannot be held liable does not commend itself.
It is the duty of the owner, operator or Manager of the Vessel to scrupulously
observe the Safe Manning Rules. In the event of a navigation incident
resulting in damage to person or property, on account of ex-facie negligence
or dereliction on the part of the employees, the owner cannot be permitted to
wriggle out of the situation by asserting that the loss has not resulted from his
actual fault or privity. In any event, the Defendants have failed to adduce
satisfactory evidence to discharge the said onus.
150. In the light of the aforesaid consideration, I find substance in the
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submission of Mr. Vernekar that the Defendants failed to establish that they
were entitled to limit their liability. The omission on the part of the Defendants
to seek constitution of limitation fund cannot be brushed aside as immaterial
or inconsequential. In the wake of the correspondence that ensued,
immediately after the occurrence, calling upon the Defendants to remedy the
situation, if the Defendants intended to limit their liability, they ought to have
initiated appropriate proceedings for setting up of the limitation fund, as
envisaged under Section 352-C of the Act, 1958. A bald submission that the
Defendants are entitled to limit their liability without any concrete steps to get
the liability limited, cannot be an answer to the claim for damages for the
collision. I am, therefore, persuaded to answer issue Nos.10 and 11 in the
negative.
Issue Nos. 7 and 9 – Damages
151. The very entitlement of the Plaintiff to claim damages was questioned
by Mr. Sen on the ground that the Plaintiff has not suffered any injury. MV
Sanjeevani was to be transferred to SMIL at written down value. The vessel
was, in fact, transferred to SMIL. Thus, the Plaintiff did not suffer any loss, as
such. Mr. Sen would urge that, Mr. Mukesh Saglani (PW2), also conceded
that it was SMIL who suffered the loss, if at all. In these circumstances, the
order passed in CHS No.714 of 2002 which decided who can sue, having
been allowed to attain finality, the claim for damages at the instance of the
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Plaintiff is not tenable.
152. The aforesaid submission was countered by Mr. Vernekar asserting
that, the Defendants had resisted the impleadment of SMIL on the ground that
SMIL was not entitled to sue. The Defendants, thus, cannot be permitted to
now urge that the Plaintiff had not suffered the loss. The transfer of MV
Sanjeevani to SMIL was for a consideration. It would, thus, be preposterous
to urge that the Plaintiff did not suffer any loss.
153. As noted above, by an order dated 8 July 2002, CHS No.714 of 2002
taken out by SMIL for permission to be brought on record in the place and
stead of the Plaintiff, came to be rejected. The said Chamber Summons was
strongly opposed by the Defendants by specifically relying upon the
provisions contained in clause (c) of Section 6 of the Transfer of Property Act,
1882, on the ground that what the Plaintiff had was a mere right to sue and
that cannot be transferred. The said submission found favour with this Court
and the prayer to substitute SMIL as the Plaintiff came to be rejected.
154. It is imperative to note that even the prayer of SMIL to implead it as co-
plaintiff alongwith the Plaintiff also came to be rejected by this Court. Indeed,
the said order attained finality. However, in my considered view, the
Defendants cannot be permitted to approbate and reprobate. On the date of
the navigation incident, the Plaintiff was the owner of MV Sanjeevani. The
Plaintiff pursued the claim for damages even before the institution of the suit.
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It was pursuant to the order dated 29 March 1996 in Company Application
No.2-S of 1996 in Company Petition No.1 of 1983, the wreck of MV
Sanjeevani came to be transferred to SMIL. Moreover, from the perusal of
the Consent Terms, to which the Plaintiff and SMIL were the parties, it
becomes evident that the liability of the Plaintiff to sell MV Sanjeevani to SMIL
at the written down value was contingent upon the personal guarantees of
Respondent Nos.3 and 4 therein having been duly discharged as stipulated in
the said Consent Terms.
155. It appears that the transfer of MV Sanjeevani by the Plaintiff to SMIL
was a part of the comprehensive settlement between the parties. In that view
of the matter, it would be impermissible to urge that the Plaintiff did not suffer
any loss, especially when the impleadment of SMIL was resisted tooth and
nail. What rights SMIL would have in the damages which may be awarded to
the Plaintiff is an altogether different matter and can be determined in the
event a dispute arises between the Plaintiff and SMIL. Therefore, the
challenge to the entitlement of the Plaintiff to seek damages does not carry
much substance.
156. What should be the measure of quantum of damages ? As a matter of
first principle, the same principle governs the assessment of damages in
collision action in the Admiralty jurisdiction as that which governs the action
for destruction or conversion of a property. The damages which flow
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reasonably and naturally from the wrongful act resulting in loss of the vessel,
are recoverable. Undoubtedly, the principle of remoteness of damages
deserves due application.
157. In the case of Owners of Dredger Liesbosch V/s. Owners of
Steamship Edison14 on which reliance was placed by Mr. Vernekar to
support the submission that the Plaintiff is entitled to, in the least, the insured
value of the vessel, elaborately deals with the measure of damages in an
admiralty action for damages for the loss of the vessel in the collision. In the
said case, the Respondent’s steamship had fouled the moorings of the
Appellant’s dredger Liesbosch and did not free them until steamship had
carried Liesbosch into open sea, where the latter sank and became total loss.
Liesbosch was insured for 5520l.
158. In the backdrop of the aforesaid facts, the Privy Council enunciated that
when the Vessel is lost by collision due to the sole negligence of the
wrongdoing vessel the owners of the former vessel are entitled to what is
called restitutio in integrum, which means they should recover such a sum as
will replace them, so far as can be done by compensation in money, in the
same position as if the loss had not been inflicted on them, subject to the
rules of law as to remoteness of damage.
159. The Privy Council exposited the measure of damages and the factors to
14 1993 A.C. 449
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be taken into account, in the following words :
“…….The true rule seems to be that the measure of
damages in such cases is the value of the ship to her owner
as a going concern at the time and place of the loss. In
assessing that value regard must naturally be had to her
pending engagements, either profitable or the reverse. The
rule, however, obviously requires some care in its application;
the figure of damage is to represent the capitalized value of
the vessel as a profit-earning machine not in the abstract but
in view of the actual circumstances. ……… The assessment
of the value of such a vessel at the time of loss, with her
engagements, may seem to present an extremely
complicated and speculative problem. But different
considerations apply to the simple case of a ship sunk by
collision when free of all engagements, either being laid up in
port or being a seeking ship in ballast, though intended for
employment, if it can be obtained, under charter or otherwise.
In such a case the fair measure of damage will be simply the
market value, on which will be calculated interest at and from
the date of loss, to compensate for delay in paying for the
loss.” (emphasis supplied)
160. Mr. Vernekar advanced a three-fold submission. Firstly, the measure of
damages should be the replacement value of MV Sanjeevani. That would be
the most fair measure of damages. Mr. Vernekar urged that the claim for
damages as specified in the Particulars of Claim (Exh. M to the plaint), which
takes into account the cost of the acquisition of the Vessel of the same age,
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condition and class, as MV Sanjeevani, after giving credit for the depreciationand the scrap value of the wreck of MV Sanjeevani i.e. Rs.2 Crores, has not
been specifically disputed.
161. Moreover, the testimony of Mr. Anil V. Salgoacar (PW1) and Mr.
Mukesh Saglani (PW2), who deposed in support of the claim for replacement
value of MV Sanjeevani went unimpeached. Secondly, if the Court does not
consider replacement value as the fair measure of damages, the insured
value of MV Sanjeevani i.e. Rs.9,50,00,000/-, as is evident from the Insurance
Policy (Exh.P-1/86) issued by the Oriental Insurance Company Limited,
constitutes the value of MV Sanjeevani.
162. Thirdly, at any rate, Mr. Vernekar would urge, once the liability of the
Defendants is established, and even if the Plaintiff fails to prove the actual
loss, the Plaintiff is entitled to reasonable compensation. To this end, a very
strong reliance was placed by Mr. Vernekar on the judgment of the Supreme
Court in the case of Vohra Sadikbhai Rajakbhai and Ors. (supra).
163. Per contra, Mr. Sen submitted that the Plaintiff is not entitled to
damages at all. MV Sanjeevani, as is evident, drifted and, eventually,
grounded for the sole reason that MV Sanjeevani could not be brought under
control by use of engines. Had engines of MV Sanjeevani been used, like
Priyamvada, there was no reason for MV Sanjeevani not being brought under
control as in the same storm situation and alleged shallow waters,
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Priyamvada was brought under control. Mr. Sen would, thus, urge theprinciple of remoteness of damages needs to be kept in view. By no stretch
of imagination, according to Mr. Sen, the alleged collision can be attributed as
the sole cause for the grounding of MV Sanjeevani. At best, the Defendants
could foresee some physical damage to MV Sanjeevani in the event of
contact. However, the total constructive loss of MV Sanjeevani was never
within the contemplation of the parties as the damage likely to be suffered by
MV Sanjeevani on account of the collision.
164. Mr. Sen would further urge that, under no circumstances, the Plaintiff
can claim the replacement value of the vessel. Taking the Court through the
condition of MV Sanjeevani, as emerged from the documents emanating from
the Plaintiff, Mr. Sen would urge that much before the collision and after the
alleged refloating of the vessel, the Plaintiff had claimed that MV Sanjeeani
was beyond the economic repairs and was to be scrapped and MV
Sanjeevani was indeed scrapped. The Plaintiff has not alleged or proved any
loss on account of scrapping of MV Sanjeeani.
165. Secondly, the Plaintiff was to transfer MV Sanjeevani to SMIL at a
written down value. What was the written down value of MV Sanjeevani was
not brought on record. Nor is it the claim of the Plaintiff that it suffered loss on
account of the transfer of MV Sanjeevani as a wreck.
166. Mr. Sen further submitted that the material on record indicates that MV
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Sanjeevani was, in fact, a dead ship and navigational hazard. Mr.Sangnani(PW2) who was examined to prove the replacement value of MV Sanjeevani,
had neither any personal knowledge nor professed to prove the replacement
value.
167. Reliance on the decision in the case of Owners of Dredger Liesbosch
(supra) for claiming insured value of the vessel as the damages is also wholly
misplaced, urged Mr. Sen. The decision in Owners of Dredger Liesbosch
(supra), in terms, holds that the market price of the vessel was to be
determined on the basis of the market price of a comparable dredger
(involved in the said case). In the case at hand, Mr. Sen would submit, there
is no material to show as to what was the value of MV Sanjeevani as of the
date of the navigation incident. On the contrary, the material on record shows
that MV Sanjeevani was nothing but a dead ship.
168. Mr. Sen further submitted that even reliance on the judgment of the
Supreme Court in the case of Vohra Sadikbhai Rajakbhai and Ors. (supra)
is not well founded. Reasonable damages can be awarded if it is impossible
to prove the damages. In the case at hand, the Plaintiff was in a position to
adduce evidence to establish the exact damage suffered by MV Sanjeevani
and the compensation awardable for the same. However, the Plaintiff failed to
lead such evidence. The surveyors’ reports tendered in the evidence of Anil
V. Salgoacar (PW1) are of no assistance to the Plaintiff as those reports were
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not proved in evidence by examining the concerned surveyors. In this view ofthe matter, the Plaintiff is not entitled to recover even the reasonable
compensation having failed to prove the damage to MV Sanjeevani,
submitted Mr. Sen.
169. In the particulars of claim (Exh. M), the Plaintiff has assessed the cost
of a new trans-shipper like MV Sanjeevani at Rs.43,82,00,000/- and after
accounting for depreciation at 35% of the cost of the replacement, the Plaintiff
claimed to have suffered loss of Rs.15,33,70,000/-. Out of the said amount,
the scrap value of Rs.2,00,00,000/- has been deducted. The claim is, thus,
quantified at Rs.13,33,70,000/-. In its very nature, the depreciated value of
the cost of replacement of the vessel is rooted in facts and hinges upon the
condition of MV Sanjeevani as of the date of the navigation incident.
170. At this stage, the Court need not again delve in detail as to the
condition of MV Sanjeevani as of the date of the navigation incident, as while
determining issue Nos.4 and 16, this Court has recorded findings which touch
upon the condition of MV Sanjeevani. It would be suffice to refer to two
documents, which throw light on the estimation of the Plaintiff itself as regards
the condition of MV Sanjeevani. First, the communication dated 13 May
1994 (Exh.PW-3/112A), whereby SMIL gave plan of action to MPT regarding
refloating of MV Sanjeevani. As regards the future plans, SMIL categorically
informed the Port that MV Sanjeevani was beyond economic repairs. MV
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Sanjeevani was to be taken to a ship breaking yard for scrapping outside theport. In the follow-up communication dated 25 May 1994 (Exh PW-1/52), it
was further informed that the temporary repairs were carried out to MV
Sanjeevani to arrest the leakages and leakage water was being constantly
pumped out. Request for allotment of a vacant berth was made to carry out
further repairs to stop leakages arising from the temporary repairs for floating
the vessel. Secondly, it could not be controverted that under the Consent
Terms, the Plaintiff had agreed to sell MV Sanjeevani to SMIL at a written
down value.
171. In the face of these documents, endeavour on the part of the Plaintiff to
bank upon the communication by the Port dated 3 June 1994 pertaining to the
inspection of MV Sanjeevani that, only VHF was not in working condition, to
buttress its case that MV Sanjeevani was otherwise, fully operational, does
not commend itself. The said communication cannot be considered as a
certification for the total seaworthiness of MV Sanjeevani. Moreover, having
informed the Port that MV Sanjeevani was beyond economic repairs and it
was required to be broken and scrapped, and, also having agreed to transfer
the vessel at a written down value, the Plaintiff cannot be permitted to urge
that the measure of damages ought to be the replacement value of MV
Sanjeevani. The claim presupposes that MV Sanjeevani was in a seaworthy
condition.
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172. This claim is also required to be tested in the backdrop of the fact that
MV Sanjeevani was grounded for over 10 months before it was refloated. The
condition of MV Sanjeevani, which was in a grounded state for over 10
months, must have deteriorated. It is true, the evidence on record does not
equip the Court to arrive at a definite conclusion regarding the condition of MV
Sanjeevani as of the date of the navigation incident. In the light of the
aforesaid consideration, reflecting upon the condition of MV Sanjeevani, the
claim for replacement value is far from reality.
173. The endeavour of Mr. Vernekar to persuade the Court to award the
insured value of the vessel does not find support in the decision of Privy
Council in the case of Owners of Dredger of Liesbosch (supra). Mr. Sen
was justified in submitting that, in fact, the Privy Council has held that the cost
at which the Vessel was initially purchased or the insured value of the vessel
is not the barometer on which the value of the sunken / lost vessel is to be
determined. For the sake of more clarity, it would be apposite to extract the
relevant observations of the Privy Council in the said judgment :
“…..What Scrutton L.J. in fact awards as the value of the
dredger to the appellants at the time and place of loss is
9177l., which was what was paid for the Adria in
September 1930, but, as the Lord Justice points out, that
fact is not evidence of the market value of the Liesbosch
in November, 1928, when the Liesbosch was lost, any
more than is the cost to them of the Liesbosch when theySSP 92/98
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bought her, or the amount for which she was insured.”
(emphasis supplied)
174. The insured value cannot be an indication of the true value of the
Vessel at the time of the navigation incident. A variety of factors may bear
upon the insurer determining the insured value of the vessel. At best, that
would be the matter of contract between the insurer and insured and would
not bind the third parties.
175. Mr. Vernekar submitted that the Plaintiff has adduced adequate
evidence to show the damage caused to MS Sanjeevani in the collision.
Reliance was placed on the Survey Reports of Ericson and Richards dated 11
June 1994 (Exh.PW-1/82), dated 17 August 1994 (Exh.PW-1/85), Under
Water Survey Report of EMGE Diving (Exh.PW-1/88), further Survey Report
of EMGE Diving dated 18 April 1995 (Exh.PW-1/90), the letter dated 15
November 1995 from Kaniksha Salvage (Exh.PW-1/92) to the effect that MV
Sanjeevani cannot be salvaged and has to be broken in situ and parts
removed and the Wreck Removal Agreement dated 29 January 1996 with
Kaniksha Salvage (Exh.PW-1/93).
176. All these documents were tendered in evidence along with the Affidavit
in lieu of examination-in-chief of Anil V. Salgoacar (PW1). Even if maximum
latitude is given to the admissibility of the evidence of Anil V. Salgoacar
(PW1), discounting the fact that he was not available for cross-examination,
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yet the aforesaid documents could not have been proved in evidence by Anil
V. Salgoacar (PW1). Mere tendering of the Survey Reports and the opinion of
the Salvors, without examining the Surveyors and Salvors as witnesses, is of
no significance. If the Plaintiff intended to prove the Survey Reports to show
the damage, or for that matter, the condition of the Vessel as of the date of the
navigation incident, the Plaintiff must have examined the Surveyors and
Salvors as witnesses to substantiate their assessment of the Vessel, as
documented in the aforesaid reports. I am, therefore, inclined to hold that the
aforesaid documents, though marked, do not command evidentiary value.
Issue No. 9 is thus answered in the negative.
177. This takes me to the last limb of the submission of Mr. Vernekar that at
any rate, the Plaintiff is entitled to reasonable compensation, even if the
Plaintiff fails to prove the value of the vessel as of the date of the navigation
incident.
178. In the light of the aforesaid consideration and the view this Court is
persuaded to take, the negligence and wrongful acts on the part of
Priyamvada have been proved. However, this Court is not inclined to accept
the claim of the Plaintiff that the negligence or wrongful act on the part of
Priyamvada was the sole cause for the total constructive loss of MV
Sanjeevani. As noted above, there were acts and omissions on the part of
the Master of MV Sanjeevani as well, especially after MV Sanjeevani started
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dragging its anchor, after Priyamvada collided with MV Sanjeevani. The
assessors have also advised the Court that there were acts or omissions on
the part of both the Vessels, which contributed to the eventual grounding of
MV Sanjeevani.
179. In the totality of the circumstances, this Court considers it appropriate to
apportion the blame in equal measure. Thus, there was a contributory
negligence on the part of MV Sanjeevani as well, to the extent of 50%.
180. In the case of Vohra Sadikbhai Rajakbhai and Ors. V/s. State of
Gujarat and Ors. (surpa), wherein the Appellants therein had suffered
damage, including the loss of 1500 boar trees, on account of flooding of their
fields due to release of water from the dam, the Supreme Court held that no
doubt, the Appellants had not led any evidence to show the actual cost of
each tree, in order to arrive at the precise quantum of damages. However,
even in the absence of such an evidence showing the exact loss suffered, the
Appellants would still be entitled to reasonable compensation once the factum
of suffering loss has been proved. Where a wrong has been committed, the
wrongdoer must suffer from the impossibility of accurately ascertaining the
amount of damages. Likewise, a party claiming compensation must give best
evidence to prove the damages.
181. Mr. Sen would urge that the Plaintiff failed to lead best evidence, and,
therefore, is not entitled to even reasonable compensation. I find it difficult to
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accede to this submission. There is evidence to indicate that Priyamvada
dragged its anchor and collided with MV Sanjeevani. On account of heavy
thuds, MV Sanjeevani suffered damage. Eventually, the imact resulted in MV
Sanjeevani’s anchor being uprooted and the resultant grounding of MV
Sanjeevani in shallow waters. To urge that the failure on the part of the
Plaintiff to establish the condition of MV Sanjeevani as of the date of
occurrence and the damage suffered by MV Sanjeevani and, therefore, it is
not entitled to any compensation would be taking an unrealistic view of the
matter.
182. What should be the reasonable compensation ? It is the case of the
Plaintiff that MV Sanjeevani was required to be scrapped as wreck. It had
received Rs.2 Crores as scrap value of the said wreck. There is also material
to show that the Plaintiff itself had claimed much before the navigation
incident that MV Sanjeevani was beyond economic repairs and was required
to be broken and sold as scrap. These factors coupled with the condition of
MV Sanjeevani, adverted to above, persuades the Court to hold that the
measure of compensation would be the value which MV Sanjeevani could
have fetched after being broken and sold as scrap as of the date of the
navigation incident. As the report of Inspection dated 3 June 1994 indicated
that MV Sanjeevani was indeed refloated and the wreck of MV Sanjeevani
was sold as scrap after two years of the navigation incident, in my considered
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view, the scrap value of MV Sanjeevani as of 5 June 1994 would be required
to be assessed at triple the scrap value obtained by the Plaintiff i.e. Rs.6
Crores (2 Crores X 3). Out of the said amount, a sum of Rs.3 Crores would
be required to be deducted towards 50% negligence apportionable to MV
Sanjeevani. Out of the balance amount of Rs.3 Crores, the Plaintiff claimed
to have received Rs.2 Crores as scrap value of MV Sanjeevani. The
Defendants would, thus, be liable to pay balance amount of Rs.1 Crore to the
Plaintiff towards the compensation.
183. The conspectus of aforesaid consideration is that the suit deserves to
be partly decreed and the Counter Claim dismissed.
184. Hence, the following order :
ORDER
(i) The Suit stands partly decreed with
proportionate costs i.e. 50%.
(ii) Counter Claim stands dismissed with
costs.
(iii) The Defendants do pay a sum of
Rs.1,00,00,000/- (Rupees One Crore only) to
the Plaintiff along with simple interest @ 9%
p.a., from the date of the institution of the suit till
payment or realization.
SSP 97/98 adms 31 of 1995.doc (iv) The assessors opinions be sealed and kept along with the judgment and shall form part of the record to be preserved permanently. (v) Decree be drawn accordingly. ( N.J.JAMADAR, J. ) SSP 98/98 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 17/07/2025 23:43:01
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