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TMI Blog2003 (11) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... be held to be intrinsically connected with the operation of a ship. An insurance transaction more often than not have links with more than one country. In a given case for resolution of a complex question the principles of private international law or the conflict of laws may have to be turned to but with a view to determine the same, disputes have to be resolved by reference to the system of law which governs the contract of insurance. The jurisdiction to deal with an action by or against insurers in England and EC Member States except Denmark are now governed by EC Council Regulation No. 44/2001. In other countries, however, the law which is prevailing therein would govern the field. It may be true that some conventions like Brussels and Lugano are no longer relevant in most cases involving EC Member States but they form an important part of the background to the current jurisdictional regime. For defending the limits of the jurisdiction of the case of a particular company the same must, therefore, be governed by the law prevailing therein. The claim may be a maritime claim in a non-contracting country but not in others. The 'Club' in law, therefore, would be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. In our opinion the order refusing to reject the plaint falls in the category of a preliminary judgment and is covered by the second category carved out by this Court. It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 of the Code of civil Procedure. The idea underlying Order 7 Rule 11A is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of civil Procedure, the Courts would interpret the provisions in such a manner so as to save expenses, achieve expedition, avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant. We, therefore, are of the opinion that Letters Patent Appeal was maintainable. Rejection of plaint - The approach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the laws of the United Kingdom. It is a mutual association of ship owners. It offers insurance cover in respect of the vessels entered with it for diverse third party risks associated with the operation and trading of vessels. According to the appellant, no vessel operates without a Protection Indemnity (P I) cover and the same has been made compulsory to allow a ship to enter major ports in India. 2. 'Sea Ranger' and 'Sea Glory' are the sister vessels of the 1st respondent vessel and they are allegedly owned by the 2nd respondent. The first two vessels entered into a contract with the appellant's association for the years 1998-1999 and 1999-2000 but they have not paid the unpaid insurance premium due and payable by the 2nd respondent for various P I risks for which they had been insured. These unpaid insurance calls being necessaries was enforceable within the admiralty jurisdiction of the Bombay High Court. 3. For the arrest of the 1st respondent vessel which came to Mumbai Port within the territorial waters of India, a suit was filed by the club inter alia for the prayers : (a) for a decree against the respondents in the sum of US$1,18,194.89 together w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )Whether the averments made in paragraphs 1 and 14 of the plaint disclose sufficient cause of action for maintaining a suit. 7. The Division Bench while answering the question No. 1 in favour of appellant, answered question Nos. 2 and 3 against it. Appeal No. 226 of 2001 has been filed by the 'club' whereas civil Appeal No. 5666 of 2002 has been filed by the 'vessel'. Submissions: 8. Mr. Bharucha, the learned counsel appearing on behalf of the Vessel would inter alia submit: (i) The amount of arrears of insurance premium alleged to be due to the 1st respondent towards release calls is not a maritime claim entitling the Club to invoke the admiralty jurisdiction of the High Court as such unpaid insurance money does not constitute 'necessaries' within the meaning of Section 5 of the Admiralty Courts Act, 1861. (ii) Sufficiently direct and proximate connection between insurance and the vessel is a prerequisite for bringing an action in rem. Insurance is meant primarily as a means of indemnifying and protecting the vessel owner against the loss of his vessel and/or claims that that may arise as a result of damage or loss caused by the vessel. Although it may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Inc. v. Arwkright Boston Manufacturers Mutual Insurance Co. and Ors. The Sandrina 1985 (1) All ER 129, holding that claim for unpaid insurance has never been recognized as maritime claim under any other head and the Courts of England expressly held the same to have been excluded as such under Article 1 of the Brussels Arrest Convention, 1952. Such a claim, thus, due to unpaid insurance premium would not be a maritime claim also under the head disbursements made on account of a ship . (vii) In the decision of this Court in M.V. Elisabeth [1992]1SCR1003 , it was merely held that the High Courts in India will have an extended jurisdiction under the Admiralty Courts Act, 1861 and the said principle cannot be further extended. (viii) As the maritime jurisdiction of the High Courts in India was derived from the pre-independence statutes and as the High Courts of India exercise the same jurisdiction as that of the courts in England, it must necessarily be held that the interpretation of the word necessaries rendered by the English Courts and which has been followed by other courts except by the American Court should prevail. 9. Mr. Prashant S. Pratap, the learned counsel appearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 are as follows: 3. WHENEVER A VESSEL SHALL BE ARRESTED, ETC., COURT TO HAVE JURISDICTION OVER CLAIMS OF MORTGAGEES: Whenever any ship or vessel shall be under arrest by process issuing from the said High Court of Admiralty, or the proceeds of any ship or vessel having been so arrested shall have been brought into and be in the registry of the said court, in either such case the said court shall have full jurisdiction to take cognizance of all claims and causes of action of any person in respect of any mortgage of such ship or vessel, and to decide any suit instituted by any such person in respect of any such claims or causes of action respectively. 4. COURT TO DECIDE QUESTIONS OF TITLE, ETC.: The said Court of Admiralty shall have jurisdiction to decide all questions as to the title to or ownership of any ship, or vessel, or the proceeds thereof remaining in the registry, arising in any cause of possession, salvage, damage, wages or bottomry, which shall be instituted in the said court after the passing of this Act. 6. THE COURT IN CERTAIN CASES MAY ADJUDICATE, ETC.: The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and earnings of any ship registered at any port in England or Wales, or any share thereof, and may settle all accounts outstanding and unsettled between the parties in relation thereto, and may direct the said ship or any share thereof to be sold, and may make such order in the premises as to it shall seem fit. 12. Section 2 of Colonial Courts of Admiralty Act, 1890 reads thus: 2. Colonial Courts of Admiralty. - (1) Every court of law in a British possession, which is for the time being declared in pursuance of this Act to be a Court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction, exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such Court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty.... (2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Authorities, or Dock or Harbour Authorities under their existing domestic laws or regulations to arrest, detain or otherwise prevent the sailing of vessels within their jurisdiction. HISTORY OF JURISDICTION OF THE HIGH COURT: 16. The jurisdiction of the High Court of Admiralty in England used to be exercised in rem in such matters as from their very nature would give rise to a maritime lien - e.g. collision, salvage, bottomry. The jurisdiction of the High Court of Admiralty in England was, however, extended to cover matters in respect of which there was no maritime lien, i.e., necessaries supplied to a foreign ship. In terms of Section 6 of the Admiralty Act, 1861, the High Court of Admiralty was empowered to assume jurisdiction over foreign ships in respect of claims to cargo carried into any port in England or Wales. By reason of Judicature Act of 1873, the jurisdiction of the High Court of Justice resulted in a fusion: of admiralty law, common law and equity. The limit of the jurisdiction of the Admiralty court in terms of Section 6 of the 1861 Act was discarded by the Administration of Justice Act, 1920 and the jurisdiction of the High Court thereby was extended to (a) any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessaries had not been defined in the Act of 1861. It was given a meaning by judicial pronouncements. 23. It stands accepted that having regard to the legislative and executive policy, England and Wales never considered the arrears of insurance premium as a 'necessary'. The Courts of England further maintained a distinction between a maritime claim and maritime lien. The decisions cited by Mr. Bharucha go to show that the English Courts proceeded on the premise that for the purpose of considering as to whether any necessary has been supplied to a ship or not must have a sufficient and direct connection with the operation of the ship. It held that unpaid insurance premium is not a maritime claim as it is not needed to keep it going. [See Queen v. Judge of the City of London Court (supra), Heinrich Bjorn (supra), The Andre Theodore (supra), The Aifanourious (supra). The English Courts, thus, refused to put a wide construction on that term. 24. A similar view was also adopted by an Australian High Court in Gould v. Cornhill Insurance Co. Ltd. [1 DLR 4th Ed. 183]. 25. In The Riga (1869) L.R. 3 A E 516, it is stated: The definition of the term necessaries given by Lord Tenterden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be drawn between the supply of necessaries and the payment for such supply. 28. Identical view has been taken by a Court of Durban in M.V. Emerald Transporter 1985 2 SALR 448 with reference to the provisions contained in Admiralty Jurisdiction Regulation Act 105 of 1983 wherein it was held that services which are insured solely to the benefit of the ship owner would not be classed as necessaries. The said decision was, however, rendered in the context of ranking of claims against a fund comprising of sale proceeds of the vessel M.V. Emerald Transporter . 29. The House of Lords in The River Rima (supra) considered the provisions of Article 1(1)(k) of the 1952 Brussels Arrest Convention incorporating goods or materials wherever supplied to a ship for her operation or maintenance as a maritime claim. Having regard to the provisions contained in Section 6 of Admiralty Court Act, 1840 and Section 5 of Admiralty Court Act, 1861 it was held: In other words, what is now called a claim in respect of goods or materials supplied to a ship for her operation or maintenance is the equivalent of what used to be called a claim for necessaries , but without the restrictions which formerly applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutes as also interpretive changes took place. The decisions rendered by different courts on marine insurance law even frequently apply to non-marine insurance. With the increase in marine traffic, the insurance law also developed and new varieties of insurance covers came into being. There has been a considerable expansion of the practice of insurance against various forums of legal liabilities which the assured may incur to the third parties. 35. P I mutual insurances cover the liabilities of assured shipowner incurred to third parties. In Modern Admiralty Law by Aleka Mandaraka-Sheppard at page 642, it is stated: P I mutual insurance (P I associations) cover the liabilities of their assured shipowner incurred to third parties, which include cargo claims, pollution liabilities, damage to harbours, piers, etc., and personal injury' or loss of life claims, which are all excluded from the RDC clause. In addition the P I association insures the remaining one-fourth of the assured' liability under the RDC clause. Legal costs in defending such claims are covered as well. 36. The title of a claimant to sue the defendant as regard cargo claim enquiry has been stated in Shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cked if the parties agree to the incorporation of the SCOPIC clause. If the clause is incorporated it then needs to be invoked by salvor. This can be done even if there is no threat to the environment. Invoking the clause completely replaces the right of the salvor to claim under Article 14, even in respect of services performed before the invocation of the clause. The provisions of Articles 14(5) and (6), however, continue to remain effective. Within two days of the clause being invoked, Clause 3 obliges the shipowner to put up security for the salvor's claim under the clause in the amount of US $ 3,000,000. If the shipowner fails to do so, Clause 4 entitles the salvor to withdraw from the SCOPIC clause, provided the security is still outstanding at the date of withdrawal. Clause 5 provides that SCOPIC remuneration is to be calculated by reference to an agreed tariff of rates that are profitable to salvors, calculated by reference to the horsepower of the salvage tug/s employed. It also covers the salvor's out of pocket expenses. An uplift of 25% is applied to both these heads of claim. Clause 6 provides that SCOPIC remuneration is payable only in the event that it exceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. No ship having regard to the ramification in international law can sail without such insurance. Apart from the 1952 Brussels Arrest Convention, the Merchant Shipping (Oil) Pollution Act, 1961 makes insurance compulsory. 41. As would be noticed hereinafter, P I insurance cover to call at major ports in India is new a statutory requirement, CHANGING SCENARIO: 42. The advancement in Taw would be evident from the 1999 Arrest Convention whereby significant changes to the law relating to in rem claims and arrest has been made. Pursuant to Article 14 of the 1999 Arrest Convention, such changes would come into force six months after ratification by the 10th State. 43. The countries which have ratified the Convention are as follows: Algeria, Antigua and Barbuda, Bahamas, Belgium, Belize, Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Costa Rica, Cote d'Ivoire, Croatia, Cuba, Denmark, Djibouti, Dominica, Republic of, Egypt, Fiji, Finland, France, Overseas Territories, Gabon, Germany, Greece, Grenada, Guyana, Guinea, Haiti, Haute-Volta, Holy, Seat, Ireland, Italy, Khmere Republic, Kiribati, Latvia, Luxembourg, Madagascar, Marocco, Mauritania, Mauritius, Nethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s home port is situated in a non-contracting State. 46. Apart from those restrictions resulting from the Convention, all kinds of claims can be secured by an arrest and there is no need to prove a connection with the operation of the vessel. As for example, a guarantee given by the owners for a subsidiary company or other principal debtor is as suitable as a claim resulting from the purchase of the ship or any other goods by the owners. However, in terms of Article 1(k) of the Convention claims for goods or materials supplied to a ship for her operation or maintenance are acknowledged as maritime claims. 47. What was expressly excluded in 1952 convention has been included in 1999 convention. The restrictions imposed under 1952 convention as regard 'Maritime claim' to operation of ship and maintenance thereof have been removed. 48. In Kapila Hingorani v. State of Bihar (2003)IIILLJ31SC this Court observed: Justice Holmes expressed the following view in Missouri v. Holland 252 US 416 (433)3 : When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realise that they have called into life a being the development of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent adopted by the World Conference on Human Rights and Article 18 of the United Nations Covenant on civil and Political Rights, 1966, it was held: It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26.11.1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changing situation. Justice Cardoze said : The law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but the transition is never an easy process . Albert Campus stated : The wheel turns, history changes . Stability and change are the two sides of the same law-coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a gare of chance: with only stability the law is as the still waters in which there is only stagnation and death. In any view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the findings thereon in the New Zealand case (1980) 1 NZLR 104 with the longish narrations as above, depicts our inclination to concur with the same, but since issue is slightly different in the matter under consideration, we, however, leave the issue open, though the two decisions as above cannot be doubted in any way whatsoever and we feel it expedient to record that there exists sufficient reasons and justification in the submission of Mr. Desai as regards the invocation of jurisdiction under Section 44-A of the Code upon reliance on the two decisions of the New Zealand and Australian Courts. 56. No statutory law in India operates in the field. Interpretative changes, if any, must, thus be made having regard to the ever changing global scenario. 57. This Court in M.V. Elisabeth (supra) observed that Indian statutes lag behind any development of international law and further it had not adopted the various conventions but opined that the provisions thereof having been made as a result of international unification and development of the maritime laws of the world should be regarded as the international common law or transnational law rooted in and evolved out of the general pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l experts can facilitate adoption of internationally unified rules by national legislation. It is appropriate that sufficient attention is paid to this aspect of the matter by the authorities concerned. Perhaps the Law Commission of India, endowed as it ought to be with sufficient authority, status and independence, as is the position in England, can render valuable help in this regard. Delay in the adoption of international conventions which are intended to facilitate trade hinders the economic growth of the nation. (Emphasis supplied) 60. M.V. Elisabeth (supra) is an authority for the proposition that the changing global scenario should be kept in mind having regard to the fact that there does not exist any primary act touching the subject and in absence of any domestic legislation to the contrary; if the 1952 Arrest Convention had been applied, although India was not a signatory thereto, there is obviously no reason as to why the 1999 Arrest Convention should not be applied. 61. Application of the 1999 convention in the process of interpretive changes, however, would be subject to : (1) domestic law which may be enacted by the Parliament; and (2) it should be applied only for en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entury back, may be held to be so now. INDIAN STATUTES OPERATING IN THE FIELD: 67. Section 352N of the Indian Merchant Shipping Act, 1958 makes such an insurance compulsory which reads as under: 352-N. Compulsory insurance or other financial guarantee. - (1) The owner of every Indian ship which carries 2000 tons or more oil in bulk as cargo, shall, in respect of such ship, maintain an insurance or other financial security for an amount equivalent to - (a) one hundred and thirty-three Special Drawing Rights for each ton of the ship's tonnage; or (b) fourteen million Special Drawing Rights, whichever is lower. 68. The Inland Vessels Act requires a compulsory third party risk insurance cover and the standard format charter parties mostly have printed clauses making it mandatory for a vessel to have a valid protection and indemnity cover for want of which such vessels are not accepted for charter. 69. Chapter IV of the Inland Vessels Act provides for a compulsory insurance in terms whereof Chapter VIII of the Motor Vehicles Act, 1939 has been incorporated by reference. 70. This Court while considering the question of third party insurance in Motor Vehicles has noticed the developme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amended. AMSA officials have also indicated that if a vessel does not carry any original certificate of Entry they will be satisfied with the provision of a photocopy on the vessel's first visit. However on the second and subsequent visits vessels will be expected to carry an original Certificate of Entry. Please contact the Club if you need further information. Yours faithfully, THOMAS MILLER (BERMUDA) LTD. 73. A circular has also been Issued by the Insurance Association on 26.07.2000 regarding new legislation in U.S.A. (Alaska) which is to the following effect: 26 July 2000 TO ALL MEMBERS Dear Sirs OIL POLLUTION: UNITED STATES NEW LEGISLATION IN ALASKA FOR NON-TANK VESSELS FINANCIAL RESPONSIBILITY REQUIREMENTS: DRAFT REGULATIONS In May 2000 the State of Alaska followed the recent example of California in passing legislation requiring non-tank self-propelled vessels operating in Alaskan waters and exceeding 400 gt to demonstrate proof of financial responsibility for oil spills occurring in Alaskan waters. The effective date of the Financial Responsibility Act is 1, September 2000. Proof of financial responsibility must be established for non-tank vessels operating in Alaskan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's application form is attached. In Section (c), paragraph 1(b), proof of financial responsibility by entry in a P I Club must include a Certificate of Entry and must include all addenda pertaining to the amount and applicability of oil pollution cover and amount of deductibles. Deductibles With respect of deductibles, paragraph 1(c) of the application asks for proof of financial responsibility for any deductible, such as a certificate of deposit, or other financial information. It thus appears that ADEC will require some evidence of financial responsibility for any deductible as is presently required by ADEC's draft regulations. ADEC is presently considering whether to allow an interim application which does not have separate proof of financial responsibility for a deductible. However, at this juncture Owners and operators with insurance deductibles should probably plan to submit separate proof of financial responsibility for any deductible. There are likely to be further developments on this issue and Members will be kept advised. The Managers intend to issue a further circular when these regulations become final. In the meantime, Members may contact Mr. Douglas R Davis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd party liability claims 2) Claims arising out of injury/death etc. 3) Claims arising out of damage to port properties 4) Claims against environmental damage owing to pollution caused by the ship or its personnel 5) Removal of the wreck comprehensively The above details required to be submitted along with Berthing application to Harbour Master (River) Harbour Master (*Port). Sd/- (D.K. Rao) Harbour Master (Port) Copy to: DMD/TMN/FA CAO/Secretary/H.M.(R) 75. Cochin Port Trust had also been contemplating to issue such circular. 76. It may be true that some ports have not issued such circulars but from a bare perusal of the circulars as referred to hereinbefore, it would appear that such insurance cover has been considered to be a service having regard to the cover extended to oil spill, damage to port salvage operation, etc. 77. The circulars issued by the Port Trusts may not be determinative but there cannot be any doubt whatsoever the same would also be a relevant factor. 78. The 'Vessel' is also not correct in its submission that the ports cannot take any direct action against the insurers. The circulars issued are pointers to the fact that development of law in other cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplishment of the voyage. Whatever a prudent owner, if present, would be supposed to have authorized, the master may order, and for such expenditures the vessel will be held responsible. 85. We may further notice that in Modern Admiralty Law by Aleka Mandaraka-Sheppard at page 52, it is stated: However, the decision of the Scottish Court of Session in The Aifanourios, mentioned above, shattered the hopes of P I clubs. It took 19 years for the wheel to turn round and so to include such claims in the list of claims provided by the new Arrest Convention 1999. The new Arrest Convention 1999 has incorporated in the list of maritime claims for insurance premiums and brokerage, including claims by a P I club for unpaid calls. Such claims will qualify for an arrest of a ship to be made once the Convention comes into force, or is enacted by the UK. 86. In Principles of Maritime Law by Susan Hodges and Christopher Hill at page 364 it is stated: Failure to insure the ship: The authorities of Laming v. Seater, The Heather Bell, and Law Guarantee and Trust Society v. Russian Bank for Foreign Trade and others have all confirmed that a failure to insure the security is a matter which would have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al equipment or other well-recognised necessaries . It is also arguable that as oil cannot be lawfully transported without the carrier having the required insurance cover, a contract for the entry of the vessel in a P I Club could fairly be regarded as an agreement closely relating to the carriage of goods in a ship or to the use of a ship . It may be that in any future review of the 1952 Arrest Convention, claims relating to contracts of marine insurance will be included in the list of claims giving the right of arrest and provided the wording is framed appropriately to include club entry it may be that members who do not pay calls may one day find their vessels liable to arrest in this country. 89. The said prophecy has come true. The learned author has also noted the decision in Marazura Navegacion S.A. and Ors. v. Oceanus Mutual Underwriting Association (Bermuda) Ltd. and John Laing (Management) Ltd. [1977] 1 Lloyd's Rep. 283 wherein it has been noticed: Clubs can and do arrest vessels for non-payment of calls in jurisdictions which allow such actions; for example, the United States; 90. In an interesting article the International Convention on Arrest of Ships 1999 by Richa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mework of the entire legal system prevailing at the time of the interpretation (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para 53), and these principles are not limited to the rules of international law applicable at the time the treaty was concluded. 93. In Equilease Corporation v. M.V. Sampson 793 F.2d 598 the Court was considering interpretation of Ship Mortgage Act, 46 providing for right to a federal maritime lien to any person furnishing repairs, supplies, or other necessaries, to any vessel. It was held: Equilease next argues that no maritime lien arises in favor of James because insurance is not a necessary and therefore neither general admiralty law nor the Act provides a maritime lien for unpaid insurance premiums. Equilease relies on Learned and on Grow v. Steel Gas Screw Lorrains K, 310 F.2d 547 (6th Cir. 1962), for this proposition. The Grow court stated in one sentence without elaboration that there is no federal maritime lien for insurance premiums, 310 F.2d at 549, and went on to grant the plaintiff insura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A compulsory insurance regime has come into being and keeping in view the changed situation the definition of the expression necessaries should also undergo a change. 100. The term necessary is a term of art but the same cannot, in our opinion, be used in a limited context of mandatory claims made for goods or services supplied to a particular ship for her physical necessity as opposed to commercial operation and maintenance. Physical necessity and practicality would be a relevant factor for determination of the said question. Taking insurance cover would not only be a commercial prudence but almost a must in the present day context. The third party insurance may not be compulsory in certain jurisdiction but having regard to the present day scenario such an insurance cover must be held to be intrinsically connected with the operation of a ship. 101. One of the relevant factors for arriving at a conclusion as to whether anything would come within the expression necessary or not will inter alia depend upon answer to the question as to whether the prudent owner would provide to enable a ship to perform well the functions for which she has been engaged. If getting the vehicle insured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the availability of a statutory right of action in rem is to enable a claimant to found a jurisdiction and to provide the res as security for the claim. 105. In Cheshire and North's Private International Law, 12th Edition, it is stated At first sight the principle seems almost self-evident. A person who resorts to an English court for the purpose of enforcing a foreign claim cannot expect to occupy a different procedural position from that of a domestic litigant. The field of procedure constitutes perhaps the most technical party of any legal system, and it comprises many rules that would be unintelligible to a foreign judge and certainly unworkable by a machinery designed on different lines. A party to litigation in England must take the law of procedure as he finds it. He cannot by virtue of some rule in his own country enjoy greater advantages than other parties here; neither must he be deprived of any advantages that English law may confer upon a litigant in the particular form of action. To take an old example, an English creditor who sued his debtor in Scotland could not insist on trial by jury, nor, in the converse case, could a Scottish creditor suing in England ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estic legal system. Where, how and when can a maritime claimant most advisedly arrest a ship in pursuit of its claim either in rem or in persona had all along been a complicated question keeping in view the principles of 'lex fori'. 109. As a matter of policy legislation or otherwise England did not want that arrears of insurance premium should be included as a maritime claim, but the same would not imply that in other countries despite the unpaid insurance premium being maritime claim, the same would not be enforced. SUMMARY OF THE DISCUSSIONS: 110. The discussions made hereinbefore lead to the conclusion that having regard to the changing scenario and keeping in tune with the changes in both domestic and international law as also the statutes adopted by several countries, a stand, however, bold, may have to be taken that unpaid insurance premium of P I Club would come within the purview of the expression Necessaries supplied to any ship . Other types of insurance, keeping in view the existing statutes may not amount to a necessary . In any event, such a question, we are not called upon to answer at present. The discussions made hereinbefore under different sub-titles of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made (on or after the first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal. 117. The right of appeal which is provided under Clause 15 of the Letters Patent cannot be said to be restricted. 118. In Subal Paul v. Malina Paul and Anr . [2003]1SCR1092 this Court held: While determining the question as regards Clause 15 of the Letters Patent the court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, Clause 15 of the Letters Patent would be attracted. The Supreme Court in Shah Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant injunction or appoint a receiver would be a judgment within the meaning of Clause 15 of the Letters Patent? The Apex Court answered each of them from a different angle: a) Section 104 of the Code of civil Procedure read with Order 43, Rule 1 expressly authorizes a forum of appeal against orders falling under various clauses of Order 43 Rule 1 to a Larger Bench of a High Court without at all disturbing interference with or overriding the Letters Patent jurisdiction. b) Having regard to the provisions of Section 117 and Order 49 Rule 3 of the Code of civil Procedure which excludes various other provisions from the jurisdiction of the High Court, it does not exclude Order 43 Rule 1 of the CPC. c) There is no inconsistency between Section 104 read with Order 43 Rule 1 and the appeals under Letters Patent, as Letters Patent in any way does not exclude or override the application under Section 104 read with Order 43 Rule 1 which shows that these provisions would not apply in internal appeals within the High Court. In Prataprai N. Kothari v. John Braganza AIR1999SC1666 , even in a suit for possession only not based on title, a letters patent appeal was held to be maintainable. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that an order refusing to reject a plaint is one akin to order amending the plaint would not be a correct proposition of law. 125. The question as to whether the defendant despite such an order refusing to reject a plaint will have a right to show that the case is false would again be of no consequence. The said submission, in our opinion, is based on a wrong premise. 126. An order refusing to grant leave to a defendant to defend the suit would be passed when it is found that the defence is a moonshine. 127. Clause 15 of the Letters Patent is not a special statute. Only in a case where there exists an express prohibition in the matter of maintainability of an intra court appeal, the same may not be held to be maintainable. But in the event there does not exist any such prohibition and if the Order will otherwise be a 'judgment' within the meaning of Clause 15 of the Letters Patent, an appeal shall be maintainable. 128. What would be a judgment is stated in Shah Babulal Khimji (supra) as under: We think, that judgment in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in terms of Order 7 Rule 11 of the Code of civil Procedure. 136. The idea underlying Order 7 Rule 11A is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of civil Procedure, the Courts would interpret the provisions in such a manner so as to save expenses, achieve expedition, avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant. (See Azhar Hussain v. Rajiv Gandhi [1986]2SCR782 at 324-35). 137. In Dhartipakar Aggarwal v. Rajiv Gandhi [1987]3SCR369 , this court held: 9. In K. Kamaraja Nadar v. Kunju Thevar [1959]1SCR583 , the Election Tribunal and the High Court both refused to consider preliminary objections raised by the returned candidate at the initial stage on the ground that the same would be considered at the trial of the election petition. This Court set aside the order and directed that the preliminary objection should be entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection petition at the threshold shall be appealable. This Court observed: 13. Furthermore, Section 86 deals with trial of election petitions, Sub-section (1) whereof is a part of it. Trial has not been defined. In Black's Law Dictionary at page 1348 it is stated: A judicial examination and determination of issues between parties to action, Gulf, C. S.F. Ry. Co. v. Smit, Okl., 270 P.2d 629, 633; whether they be issues of law or of fact, Pulaski v. State, 23 Wis. 2d 138, 126 N.W. 2d 625, 628. A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties whether of law or fact, before a court that has proper jurisdiction . 14. It is, therefore, not necessary that the trial must be a full dressed or a jury trial or a trial which concludes only after taking evidence of a parties in support of their respective cases. 15. Section 116A provides for an appeal. The said provision must be given a liberal and purposive construction. The scope of an appeal should be held to be wider than an application for judicial review or a petition under Article 136 of the Constitution of India. 16. Furthermore, the Representation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MENT ON WHICH PLAINTIFF SUES OR RELIES. (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is. (3) Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory. 146. In the instant case the 'Club' not only annexed certain documents with the plaint but also filed a large number of documents therewith. Those, documents having regard to Order 7 Rule 14 of the Code of civil Procedure are required to be taken into consideration for the purpose of disposal of application und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the Defendant vessel in rem and are entitled to an order of arrest, detention and sale of the vessel for recovery of their outstanding dues in respect of insurance premium as more particularly stated above. The Plaintiff is, therefore, entitled to have the Defendant vessel along with her hull, gear, engines, tackle, machinery, bunkers, plant, apparel, furniture, equipments and all appurtenances thereto condemned and arrested under a warrant of arrest of this Hon'ble Court for realization of the Plaintiff's dues. The Plaintiff is further entitled to have the Defendant vessel sold under the orders and directions of this Hon'ble Court and to have the sale proceeds thereof applied towards the satisfaction of the Plaintiff's claim in the suit. The Plaintiff is entitled to an order of arrest of the Defendant vessel as arrest is the only method of proceeding against the said vessel in rem. The Plaintiff submits that if such an order of arrest is not granted, irreparable harm and injury will be caused to the Plaintiff inasmuch as the Plaintiff's suit will be rendered infructuous. There is no other alternative efficacious remedy available to the Plaintiff. 147. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the plea raised by the appellant that the respondent is not a Scheduled caste. We don't think if the respondent means to say that the petitioner should have stated in the petition that the respondent is not born of Deo Kumari Devi said to be married to Bhagwan Singh in village Adai. If at all these facts would be in the special knowledge of respondent, Bhagwan Singh and Deo Kumari Devi hence not required to be pleaded in the election petition. It is not possible as Well. In this connection, a reference may be made to a decision of this Court in Balwan Singh v. Lakshmi Nrain and Ors . [1960]3SCR91 . This case also relates to election matter and it was held that facts which are in the special knowledge of the other party could not be pleaded by the election petitioner. It was found that particulars of the arrangement of hiring or procuring a vehicle would never be in the knowledge of the petitioner, such facts need not and cannot be pleaded in the petition. 153. In D. Ramachandran v. R.V. Janakiraman and Ors . [1999]1SCR983 , it has been held that the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. 154. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court, however, in its order rejecting the plaint held: We have not gone into the merits of the Defendant No. 1 ship, we clarify, on the basis of any averments made by Defendant No. 1, to the contrary, but we have proceeded to examine the same on the basic of the averments made in the plaint to find out whether, as they stand, prove the Defendant No. 1 vessel Sea Success -I to be sister ship of vessels - Sea Glory and Sea Ranger being beneficially owned by Defendant No. 2. We have already indicated above that the allegations made in the plaint by themselves do not prove factum of Defendant No. 1 Sea Success-I being sister ship of vessels Sea Glory and Sea Ranger in respect of whom the claim has been raised in the suit, we find it difficult to approve the view of the learned Single Judge in this regard. It cannot be overlooked that ship is a valuable commercial chattel and her arrest undeservingly severely prejudices third parties innocently as well as affect the interest of owner, crew member, cargo owner, shipper etc. adversely and, therefore, it is all the more necessary to analyse the plaint meaningfully at the threshold to find out whether it discloses cause of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving legal ownership of the shares in the ship; the directions are to look at the beneficial ownership. Certainly in a case where there is a suggestion of a trusteeship or a nominee holding, there is no doubt that the Court can investigate it. I think that it may well be, without having to resolve the difference of opinion expressed by Mr. Justice Brandon and Mr. Justice Goff in the two cases to which I have referred that the Court has the power and should in some cases look even further. 162. Yet again in The Andrea Ursula [1971] 1 Lloyd's L.R. 145, the Court opined: There is no definition in the Act of the expression beneficially owned as used in Section 3(4). It could mean owned by someone who, whether he is the legal owner or not, is in any case the equitable owner. That would cover both the case of a ship the legal and equitable title to which are in one person, A, and also the case of a ship the legal title to which is in one person, A, but the equitable title to which is in another person, B. In the first case the ship would be beneficially owned by A, and in the second case by B. Trusts of ships, express or implied, are however, rare and the words seem to me to be capa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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