Tribunal: High Court of Bombay.

Date of the decision: March 8, 2023.

Appellant / Original Defendant No. 3: Angsley Investments Ltd. (hereinafter referred to as “Angsley”).

Original plaintiff: Jupiter Denizcilik Tasimacilik Mumessillik San Ve Ticaret Ltd Sirketi (hereinafter referred to as “Jupiter”). Jupiter is a Turkish company that supplies bunkers to various vessels.

Original Defendant No. 1: M/V Lima II.

Original Defendant No. 2: Lima Denizcilik Ve Tic Ltd. Sti. (hereinafter referred to as “Lima”).

Claim: This appeal arises from the judgment where the trial court ruled in favor of Jupiter – a Turkish company that supplied bunkers to M/V Lima II but did not receive payment from Lima, the owner of M/V Lima II. After an unsuccessful attempt to arrest M/V Lima II, Jupiter sought an injunction against M/V Lima I, alleging that it was owned by Lima. The admiralty court issued an injunction against M/V Lima I. Later, the trial court ruled in favor of Jupiter. Angsley, which purchased M/V Lima I, appealed.

Factual history

Between October 9, 2000, and March 13, 2001, Jupiter supplied bunkers to M/V Lima II.

Lima, the owner of M/V Lima II, failed to make payment under the contract with Jupiter.

In 2001, Jupiter filed a suit, moving to arrest M/V Lima II which was at the Port of Kandla (India).

On May 17, 2001, the order of arrest was issued against M/V Lima II. M/V Lima II, however, left the Port of Kandla without being arrested.

Later, Jupiter got information that M/V Lima I was at the Port of Calcutta (India). Jupiter alleged that M/V Lima I was owned by the same owner as M/V Lima II (i.e., Lima). Jupiter sought an injunction against M/V Lima I at the admiralty court.

On August 14, 2001, the admiralty court issued an injunction that prohibited M/V Lima I to leave the Port of Calcutta.

On October 31, 2001, the aforementioned injunction was lifted. This is because Angsley – which purchased M/V Lima I from Mercury Shipholding Inc. (Mercury) of London, which, in its turn, purchased M/V Lima I from Lima¹ – furnished security. As a result, M/V Lima I was allowed to sail.

Angsley joined the proceeding initiated by Jupiter as a defendant based on its application.

On November 8, 2006, the trial court ruled in favor of Jupiter.

On December 8, 2006, this appeal was filed by Angsley. This is because Angsley sold M/V Lima I, and the new buyer had asked Angsley to have M/V Lima I released from various legal proceedings.

Issues

(a) Whether the suit is tenable against Lima.

(b) Whether the suit is tenable against M/V Lima I.

(c) Whether Jupiter is entitled to a decree against defendants for the sum of USD 100,798.00 with interest at 30% per annum (i.e., the amount due under the bunker supply contract).

(d) Whether the supply of bunkers constitutes the supply of necessaries and whether the same constitutes a maritime claim or a maritime lien.

Rulings & Rationale

(a) An in personam action against Lima is not tenable (and there can be no decree against Lima), as Lima is a foreign party who neither resides nor carries out business within the jurisdiction of this Court. Moreover, Lima has chosen not to enter appearance before this Court. Accordingly, the suit filed by Jupiter continues to be an action in rem against M/V Lima II.

(b) The suit is not tenable against M/V Lima I. Since M/V Lima I was not a party to the suit, she could not have been made a party to Jupiter’s Notice of Motion seeking an injunction against M/V Lima I. “A party cannot be added simply as a party to a Notice of Motion without being a party to the suit.” Moreover, Jupiter could not have obtained an injunction against M/V Lima I as an in personam action like an injunction. Injunction is not maintainable against a vessel. Only an action in rem can be maintained against a vessel. Accordingly, the suit filed by Jupiter continues to be an action in rem against M/V Lima II.

“What [Jupiter] attempted to do in the present case was to move a hybrid action, i.e., in rem action against M/V Lima II and an in personam action (by way of an injunction) against M/V Lima I and that also without joining M/V Lima I as party defendant in the suit. It is now settled that such hybrid writ conjoining an action in rem and an action in personam is disapproved”.

(c) No decree could be granted against Angsley. This is because no decree was ever sought against Angsley by Jupiter. Jupiter seeks a decree against in rem against M/V Lima II and in personam against Lima. Accordingly, the term “defendants” will not include Angsley.

(d) The supply of bunkers constitutes the supply of necessaries. The supply of bunkers constitutes a maritime claim. A maritime lien can only be enforced against the vessel in respect of which it arose. Accordingly, Jupiter cannot enforce a maritime lien against M/V Lima I.

Based on the foregoing, Jupiter cannot get a decree against M/V Lima I. ■

Notes