Gujarat High Court Case Information System
Print
AS/9/2006 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
ADMIRALITY
SUIT No. 9 of
2006
=========================================================
MUNDRA
PORT AND SPECIAL ECONOMIC ZONE LTD. - Plaintiff(s)
Versus
M.V.
BAHIA BLANCA & 2 - Defendant(s)
=========================================================
Appearance
:
M/S
TRIVEDI & GUPTA for
Plaintiff(s) : 1,
MR VK BHATT for Defendant(s) : 1,
None for
Defendant(s) : 2,
MR NAVIN K PAHWA for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 14/12/2010
ORAL
ORDER
Draft
issues have been submitted by the counsel for defendant No.1.
Counsel for the plaintiff stated that the plaintiff agrees to
framing of such issues since they cover all issues arising in the
suit. Accordingly, following issues are raised :
Whether
the Plaintiff proves that the collision which occurred on
11.10.2006 was solely and entirely due to the negligence of the
first Defendant vessel/her servants/her officers and her crew
members and/or the negligence and failure of her owners and
persons interested in the first Defendant vessel and/or due to
the acts and omission and/or commission of the servants, officers
and crew of the first Defendant vessel and/or the negligence and
failure of owners and all persons interested in the first Defendant
vessel as alleged in para 6 of the plaint ?
Whether
the plaintiff proves that as a direct and immediate consequence of
the said collision, the plaintiffs have suffered grave and heavy
loss and damages which as per their preliminary assessment come to
the tune of about Rs.672 lacs as alleged in para 6 of the plaint ?
Whether
the plaintiff proves that apart from the physical loss and damage,
the plaintiffs have also suffered and will continue to suffer for
more time loss in view of the disruption of its activities,
disruption of the material supplies, claims from contractors, due to
delay/disruption in the work, increase in costs, demurrage which
are not included/taken into account, at the stage of the filing of
the suit as alleged in para 6 of the plaint ?
Whether
the plaintiff proves that their alleged claims for compensation
constitute a maritime lien on the first Defendant vessel and/or the
plaintiff are entitled to enforce their alleged maritime lien in
rem as alleged in para 8 of the plaint ?
Whether
the plaintiff proves that they are entitled to include an amount of
Rs.528 lacs (Rs.300 lacs + Rs.180 lacs + Rs.48 lacs being 10% of
Rs.480 lacs) in the plaintiff’s alleged claim of Rs.672 lacs as
contended by the plaintiff in para 4 of the plaint and as expressly
confirmed by the third Defendant in para 4 and 5 (erroneously
numbered as para 8 and 4) in the third Defendants written statement
when the third Defendants themselves have not filed any suit or
other legal proceedings to recover their alleged loss from the
first Defendant vessel and/or her owners and the same amount of
Rs.528 lacs is not the plaintiff’s claim at all but the alleged
claim of the third Defendant ?
Whether
the Defendants prove that the incident on 11.10.2006 which resulted
in the damage to the first Defendant vessel as well as to the
plaintiff’s property and their said contractor’s property was not on
account of any fault, lapse, failure or negligence on the part of
the first Defendant vessel and/or her master and/or her owners
and/or their agents or servants as alleged in para 3 of the first
Defendant’s written statement/counter-claim ?
Whether
the Defendants prove that the incident on 11.10.2006 which resulted
in the contact between the first Defendant vessel and the
plaintiff’s property and their said contractor’s property was on
account of error of judgment, inexperience, inefficiency
incompetence, failure and negligence on the part of the plaintiff’s
pilot and the fact that the plaintiff’s pilot was ill-equipped at
the time of the piloting of the vessel as well as due to negligence
of the plaintiffs for causing vessels to navigate too close to the
plaintiff’s construction works and that the pilot being an employee
of the plaintiff, the plaintiff are vicariously liable to make good
the loss and/or damage suffered by the first Defendant vessel and
for the first Defendant’s counter-claim as alleged in paras 4, 5
and 6 of the first Defendant’s written statement/counter claim ?
Whether
the Defendants prove that the first defendant vessel was too close
to the allotted discharge berth by the plaintiff and that the first
Defendant vessel subsequently made contact with the berth and that
subsequent to the contact, she was pushed further against the berth
and construction site meaning that the tidal currents prevailing
were setting the vessel westward on to the berth and the
construction area and that the predicted time of tide by the
pilot/the plaintiff was erroneous and that this fact is
corroborated by the information provided by the plaintiff’s own
pilot who confirmed that the tide had, indeed, changed by the time
the vessel got to the trimming basin and that this is another
important factor causing the said incident on 11.10.2006 for which
the first Defendant vessel/her owners are not at all liable and/or
responsible as alleged in para 7 of the first defendant’s written
statement/counter claim ?
Whether
the Defendants prove that the incident on 11.10.2006 causing damage
to the first Defendant vessel and to the property of the plaintiff
and to the contractor’s property also occurred on account of the
fact that the Port of Mundra was not safe at the time of berthing
the vessel as alleged in para 8 of the first Defendant’s written
statement/counter claim ?
Whether
the plaintiff proves that they are entitled to any decree or
reliefs against the first Defendant vessel and/or her Owners as
prayed for in the plaint ?
Whether
the first defendant vessel/her owners prove that the plaintiff
unlawfully obtained an order for the arrest of the first Defendant
vessel from this Hon’ble Court as alleged in para 23 of the
counter-claim of Wealth Line Inc. the Owners of the first Defendant
vessel ?
Whether
the Defendants prove that they are entitled to recover by way of
their counter-claim from the plaintiffs a sum of US$ 3,89,764.44 as
averred in para 2 of the first Defendant’s written statement and in
the counter-claim filed in the suit by Wealth Line Inc. as the
owners of the first Defendant vessel?
What
orders or reliefs, if any ?
The
parties shall file their documents within three weeks with copies to
the other side who may admit the documents to the extent they are to
be admitted.
For
further proceedings, S.O. to 18.01.2011.
(Akil
Kureshi, J.)
(vjn)
Top
