LexVIDESH SANCHAR NIGAM LTD. versus M. V. KAPITAN KUD AND ORS.
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A VIDESH SANCHAR NIGAM LTD. v. M. V. KAPITAN KUD AND ORS. NOVEMBER 10, 1995 B [K. RAMASWAMY AND B.N. KIRPAL, JJ.] Merchant Shipping Act, 195~Section 9(1)-Rules on Admiralty Juris- diction framed by Bombay High Court-Rules 941 and 954-Admiralty jwis- diction-Admiralty suit-Claim of 28 crores-Damage to International C Cabl~Rep01t of Cable repairing ship that damage done due to anchor- ing-Strong evidence that respondent vessel was within vicinity of damaged cabl~Ship is a foreign ship-Strong triable case to exercise admiralty jwis- diction-Order releasing vessel on deposit of 10 crores-Ship shall remain aTTested until conditions specified to be complied with. D On July 21, 1995, the International Cable which extended on sea- route from Singapore to France having branches at Bombay experienced a break and the fault was got identified by the appellant plaintiff at a distance of about 18.3 Kms. from its office at Bombay. The appellant requisitioned the services of Coast Guard Authorities. The report of the E Cable repairing ship showed that damage was done due to anchoring. It was reported that a vessel was found anchored there. The Coast Guard also found that no other vessel was found in the vicinity. The Coast Guard contacted the vessel and confirmed the position/mark coordinates as determined by the helicopter from the vessel itself. The appellant laid the F Admiralty Suit against the respondent vessel claiming damages of about Rs. 28 crores. The appellants had taken Notice of Motion for arrest of the vessel and the vessel was arrested and detained. The vessel made an application for its release from arrest after more than a month. Trial Judge having Admiralty Jurisdiction dismissed the Motion and released the vessel. In appeal, the Division Bench directed the assessors notified by G the Government of India exercising its power u/s 9(1) of Merchant Ship- ping Act, 1958, to give their estimate of the anchoring position and probab- ly involvement of the first respondent in the breakage of the cable. The assessors on the basis of the material available and the affidavit filed by the Captain of the vessel, accepting the statement of the Captain, opined H that the distance between the position of 3rd July and 29th July ap- 76 - ... VIDESH SANCHAR NIGAM LTD. v. M.V. KAPITAN KUD 77 proximately was 7.50 nautical miles, that the reason for the shifting was A strong winds then blowing from Southward and the vessel anchored was not able to hold the ship in her position and the vessel was either con· tinuoosly or intermittently drifting in northerly direction; that the vessel should have dropped anchor, in the designated anchorage which was about 5 miles clear and northward from the subject communication cable; that B the possibility of the vessel having shifted her position after mishap completely could not be ruled out; that merchant vessels do not customari- ly anchor in the vicinity of the prohibited positions, that Coast Guard authorities were not able to locate any other vessel within 3 nautical miles of the respondent-vessel. They concluded that the subject cable had been damaged by the anchor of an ocean going vessel being the 1st Respondent C vessel was very high. When the correctness of the report was disputed the Division Bench appointed two Commissioners who were nautical advisors to assess the anchoring position and probably involvement of the respon- dent vessel. Neither the advocate nor the solicitors were present at the time of inspection of the vessel. The Commissioner's report being in favour of D the vessel, the Division Bench after considering the material held that the claim of the appellant was vexatious but triable and no adverse inference was drawn for the inordinate delay of more than a month in providing access to the log book of the ship etc. There being strong evidence to show that at the relevant time the respondent vessel was within the Ticinity of the damaged cable, the Division Bench declined to interfere on the ground E thatthe Captain of the vessel filed an undertaking that the vessel belonged to the Black Sea Shipping Company which was wholly owned by the Ukrainian Government and that in the event of the suit being decreed they would honour the decree, was accepted by the Court. This appeal by special leave had been filed against the order passed by the Division Bench of the F High Court. The appellant contended that the Commissioner
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