EPOCH ENTERREPOTS v. M.V. WON FU

Citation: [2002] SUPP. 3 S.C.R. 507

Court: Supreme Court of India

Bench: U.C. BANERJEE, Y.K. SABHARWAL

Judgment text

EPOCH ENTERREPOTS v. M. V. WON FU OCTOBER 29, 2002 [UMESH C. BANERJEE AND Y. K. SABHARWAL, JJ.

] Maritime Law: Suit for damages against vessel for breach ofcontract-Agreement for transportation of cargo entered with disponent owner of the vessel- Agreement evidenced by Fixture Note-Whether Maritime Lien applicable on the basis of the Fixture Note and whether the Fixture Note by itself would give rise to a right in rem enabling to initiate proceedings under Admiralty Jurisdiction-Held, a claim arising out of an agreement relating to the use and/or hire of the ship although a maritime claim but it is not a Maritime Lien-It is restricted to the events of(a) damage done by a ship; (b) salvage; (c) seamen 's and master's wages; (d) master's wage; (e) master's disbursement; and (/) bottomry-Jn the facts of the case the contract arises de hors a Maritime Lien, no action in rem is possible and hence Admiralty Jurisdiction cannot be invoked-Admiralty Court Act, 1861-Jnternational Convention for Unification ofCertain Rules relating to Maritime Liens and Mortgages, Brussels, 1926-Brussels Arrest (of Seagoing Ships) Convention 1952- Brussels Maritime Liens Convention 1967.

Words and Phrases: Maritime Lien' and 'Disponent '-Meaning ofin the context ofmari. time law. . Appellant/ plaintiff entered into a contract with defendant/ respondent's ship disponent owner to export a cargo. Fixture Note stated ofsuch agree. ment. Since the respondent ship did not carry the cargo, appellant flied suit in rem in the Admiralty Jurisdiction of the High Court for arrest ofthe ship and for recovery of damages for breach of contract by reason of loss and damages suffered and caused by the ship. The suit was contested by the respondent ·ship without disclosing the ownership of the ship. Single Judge of the High Court dismissed the suit on the ground that since no shipment had taken place and as the ship was not involved for the breach of contract by the disponent owner or any other party, Admiralty Jurisdiction of the Court could not be invoked. In appeal, Division Bench of the High Court confirmed the [_ view of the Single Judge and dismissed the appeal.

In appeal to this Court the question for consideration was the applicability of Maritime Lien on the basis of the Fixture Note and alternatively as to whether the Fixture Note by itself would give rise to a right in rem thereby enabling the appellant to initiate proceedings under Admiralty Jurisdiction of the High Court. Dismissing the appeal, the Court HELD: I. I. Admiralty Court Act, 1861, read with the International Convention for Unification of Certain Rules relating to Maritime Liens and Mortgages, Brussels, 1926 read with Brussels Arrest (of Seagoing Ships) Convention 1952 and Brussels Maritime Liens Convention 1967 clearly indicate that a claim arising out of an agreement relating to the use and/or hire of the ship although a maritime claim would not be liable to be classified as maritime Hen. 1518-B, C) 1. 2.

Maritime lien can be said to exist or restricted to in the event of (a) damage done by a ship; (b) salvage; (c) seamen's and master's wages; (d) master's wage; (d) master's disbursement; and (e) bottomry; and in the event a maritime lien exists in the aforesaid five circumstances, a right in rem is said to exist. Othenvise, a right in personam exists for any claim that may arise out of a contract. The limited applicability of such a lien thus well illustrates that not every kind of service or every kind of damage which arises in connection with a ship gives rise to a maritime lien. This is apart from the statutory enactments which may further list out various other forms of maritime claims. 1518-E, F; 519-C, DJ M. V. Elisabeth v. Harwan Investment and Trading Pvt. ltd. Goa, AIR (1993) SC 1014 and M. V. Al Quammar v. Tsavliris Savage (International) ltd. and Ors. , 120001 8 SCC 278, referred to. The Bold Bucc/eugh (1851) 7 Meo P. C. 267; The Tervaete (1922 (P) 259, referred to.

Encyclopedia Britannica; Thomas on Maritime liens; Rippon city (1897) 226, 246, referred to. 2. 1. Even, however, assuming the agreement has in fact been entered into by the disponent owner, unless sufficient evidence is laid that the charter was by demise, whereby the possession and control of the vessel was given to the disponent owner, question of pursuing the cause of action against the vessel would not arise. In the contextual facts, apart from the Fixture Note, no other documentary support is available as to whether ownership arose through a charter by demise and possession and control of the vessel has already been given to the disponent owner. The facts disclose that the disponent was an intending charterer of the vessel from the owner and it is on expectancy of such a contract, the Fixture Note was issued. There was as a matter of fact no charter party or agreement with the charterer and some eventuality in future is stated to be the basis of the cause of action.

The disponent owner was not a demise charterer but it is on the happening ofsuch an event in future that such a Fixture Note has been issued. There is no sufficient evidence available as regards the action in rem making the vessel liable in the contract said to have been entered into, as recorded in the Fixture Note. It is in the nature of a breach of contract and liability of the vessel would not arise. [524-A-El 2. 2. Inasmuch as the claim in the present case arises out ofcontract de hors a maritime lien, no action in rem is permissible, neither a suit in the original jurisdiction of the High Court can be maintained against the vessel. [524-GI Black's Law Dictionary (7th Edition), referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7039 of2002. From the Judgment and Order dated 5. 1. 200 I ofthe Chennai High Court in O. S. A. No. 314 of2000. A. T. M. Sampath, for the Appellant. C. A. Sundaram, Vishwajit Singh, Manu Seshadri and Ms. S. Aiyar, for the Respondent.

The Judgment of the Court was delivered by BANERJEE, J. Leave granted. Issuance of warrant for the arrest of the vessel M. V. WON FU berthed at Madras Port has been the principal controversy before the Madras High Court in its Admiralty Jurisdiction. The plaintiff being the appellant herein instituted a suit for recovery of damages of 11 lakhs for breach of contract with interest at the rate of 24% per annum by reason of loss and damages suffered and caused by breach of contract by the defendant vessel. The factual element we will refer shortly .

here after but presently be it noted that against the refusal to entertain the suit and the consequent dismissal of the same before the learned trial judge, the plaintiff moved the appellate forum in the High Court but having failed to obtain the relief the petition for special leave under Article 136 has been moved before this Court and this Court at the admission stage itself upon issuance of notice and upon the grant of leave as appears herein before proceeded to deal with the issue without much of procedural formalities. Turning attention to a brief reference on to the factual score it appears that the plaintiff being a sole proprietor concern stands involved in the business of export of mines and minerals especially in Feldspar. In the usual course of events plaintiff entered into an agreement with Mis. SAN I.

Mining Company at Taiwan to export Feldspar and to complete the agreement between the parties the plaintiff entered into an agreement with said to be defendant's sh·ip disponent owner, to export the cargo of Feldspar from Tuticorin harbour to Taiwan. The agreement is stated to be evidenced in a fixture note dated 20. I0. 1995. The relevant extract whereof are as below: "It is this day mutually agreed between Taiyo Senpaku Kaisha, Ltd. Tokyo as disponent owners and Epoch Entrrepots. Madras as charterers on the following terms and conditions- - Vessel: XfY WONFU AS DESCRIBED. - Cargo: XIN 8. 000 MI IN IF BLS FELDSPAR UPTO VSLS FULL CAPACHOP - LID Port: ! SB SP Tuticorin India/I-SB I SP TAICHUNG, TAIWAN - Laycan: 25th Oct-5th Nov. 1995 - LID Rate: 1. 200 XT PWDSSEX BIU/1. 500MT PWDSEEX W IUARC - Freight: VSD 25. 00 PWI F!

OST BSS 1/1 - Payment: 100 pe1 frt payable w/I 5 banking days acol S/BLS/L FET-prepaid - Full frt TB deexed earned by ovrs CH is discountless non-returnable whether CGO/VSL Lost or not lost. - CGO TB loaded in unobstructed main hold only - Demurrage: USS 4000. 00/DHD Vis be - Agents Owners Agents be Disponent owners Charterers TAIYO Senpaku Kaisha Ltd. Manager M. Takahashi, Managing EPOCH Entrepots Director Suguna Apartments 12-A, Lloyds Road, Madras 600 014" On the factual matrix the learned Senior Advocate Mr. ATM Sampath rather emphatically contended that the contract stands completed by the signing of the fixture note and the plaintiff has also acted in terms therewith by exporting stock 8400 MT of Feldspar to Taiwan through the defendant's vessel on 26. 10. 1995.

It has been the contention that the defendant's ship has failed to act in terms of the fixture note by reason wherefor the plaintiff has not been able to send the cargo to the purchaser as per the schedule thus exposing the plaintiff to suffer a loss of 11 lakhs by reason of a deliberate act of default to ship the cargo on the vessel. As detailed above the learned single Judge dismissed the suit and recorded inter alia the following: "The plaintiff sought for the claim of arrest of the vessel and for damages. The arrest of the vessel can be sought for only under the Admiralty Jurisdiction. Nothing was performed with regard to loading of cargo in the ship. The plaintiff states that since the contract for export of goods was dropped, the vessel must be arrested. Since no shipment of the cargo has taken place, the Admiralty Jurisdiction of this Court cannot be invoked. The fixture note Ex. Pl is between the plaintiff and Taiyo Senpaku Kaisha Ltd.

No contract has been entered into between the plaintiff and the defendant, the owner of the vessel WON FU. Absolutely there is no disponent to link the defendant with the alleged contract f life or personal injury, loss of or damage to goods and the like. They are liable to be detained or confiscated by the authorities of foreign States for violating their customs, regulations, safety measures, rules of the road, health regulations, and for other causes. The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship trav~elling from port to port stays very briefly in any one port. A plaintiff seeking to .

enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out ofjurisdiction, thus leaving the plaintiff without any security. 48. A ship may be arrested (i) to acquire jurisdiction; or (ii) to obtain security for satisfaction ofthe claim when decreed; or (iii) in execution of a decree. In the first two cases the Court has the discretion to insist upon security being furnished by the plaintiff to compensate the defe9dant in the event of it being found that the arrest was wrongful and was sought and obtained maliciously or in bad faith. The claimant is liable in damages for wrongful arrest.

This practice of insisting upon security being· furnished by the party seeking arrest of the ship is followed in the United States, Japan and other countries. The reason for the rule is that a wrongful arrest can cause irreparable loss and damages to the shipowner; and he should in that event be compensated by the arresting party. (See Arrest of Ships by Hill, Soehring, Hosoi and Helmer, 1985)". 36. In Halsbury' s Laws of England, the nature of action in rem and the nature of action in personam is stated to be as below: 310. Nature of actions in rem and actions in personam. - An action in rem is an action against the ship itself, but the visw that if the owners of the vessel do not enter an appearance to the suit in order to defend their property no personal liability can be established against them has recently been questioned.

It has been stated that, if the defendant enters an appearance, an action in rem becomes, or continues also as, an action in personam; but the Admiralty jurisdiction of the High Court may now in all cases be invoked by an action in personam, although this is subject to certain restrictions in the case of collision and similar cases, except where the defendant submits or agrees to submit to the jurisdiction of the Court. The foundation ofan action in rem is the lien resulting from the personal liability of the owner of the res. Thus an action in rem cannot be brought to recover damages for injury caused to a ship by the malicious act of the master of the defendant's ship, or for damage done at a time when the ship was in the control of third parties by reason of compulsory requisition.

On the other hand, in several cases, ships allowed by their owners to be in the possession and control of charterers have been successfully proceeded against to enforce liens which arose whilst the ships were in control of such third parties. The defendant in an Admiralty action in personam is liable, as in other actions in the High Court, for the full amount of the plaintiffs proved claim. Equally in an action in rem a· defendant who appears is now liable for the full amount of the judgment even though it exceeds the vale of the res or of the bail provided. The right to recovery of damages may however be affected by the right of the defendant to the benefit of statutory provisions relating to limitation of liability. " In M. V. AL Quamar (supra) this Court spoke oftwo attributes ofmaritime lien as noticed herein before.

The International Convention for Unification of Certain Rules relating to Maritime Liens and Mortgages at Brussels in 1967 defined the maritime lien to be as below : a. wages and other sums due to the master, officers and other members ofthe vessel's complement in respect oftheir employment on the vessel; b. port, canal and other waterways and pilotage dues; c. claims against the owner in respect of loss of life or personal injury occurring, whether on Ian~ or on water, in direct connection with the operation of the vessel; d. claims agairist the owner based on tort and not capable of being based on contract, in respect of loss of or damage to property occurring, whether on land or on water in direct connection with the operation of the vessel; e. claims for salvage, wreck removal and contribution in general average.

In~identally, the Admiralty Court Act, 1861, read with the International Convention for Unification of Certain Rules relating to Maritime Liens and Mortgages, Brussels, 1926 read with Brussels Arrest (Of Seagoing Ships) Conventi<? n 1952 and Brussels Maritime Liens Convention 1967 clearly indicate that a cla! m arising out of an agreement relating to the use and/or hire of the ship although a maritime claim would not be liable to be classified as maritime lien. (See in this context Thomas on Maritime Liens). Mr. Sampath, learned Senior Advocate with all the emphasis in his command contended that the breach of the agreement in the facts of the matter under consideration cannot but be ascribed to be a maritime lien, whereas Mr.

Sundaram, learned Senior Advocate appearing for the respondents rather strongly refuted the same and contended that even assuming that there was in fact an agreement in existence between the respondent and the disponent owner, question ofthere being a maritime lien by reason ofthe breach ofsuch an agreement does not and cannot arise. We have in this judgment herein before dealt with the attributes of maritime lien. But simply stated maritime lien can be said to exist or restricted to in the event of (a) damage done by a ship; (b) salvage; (c) seamen's and master's wages; (d) master's disbursement; and (e) bottomry; and in the event a maritime lien exists in the aforesaid five circumstances, a right in rem is said to exist. Otherwise, a right in personam exists for any claim that may arise out of a contract. Mr.

Sampath did place very strong reliance on to the fixture note and contended that the document itself cannot but be termed to be a concluded contract relying upon the maritime lien. Upon reliance thereon, Mr. Sampath contended that the fixture note contains all the particulars and has been issued after the completion of negotiations and upon acceptance of the terms and conditions, by reason whereof the fixture note is final and the same binds not only the parties to the agreement but also the vessel. Incidentally, the fixture note stands issued by the Japanese Company (Taiyo Senpaku Kaisha Ltd. ) through its agent in Malaysia, M/s Oriental Shipping Corporation.

Further on the issue, we find Thomas on Maritime Liens stated it to represent a small cluster of claims which arise either out of services rendered to a maritime res or from damage done to a res and listed five several heads of maritime liens as under : (a) Damage done by a ship (b) Salvage (c) Seamen's wages (d) Master's wages and disbursements (e) Bottomry and Respondentia. The limited applicability of such a lien thus well illustrates that not every kind of service or every kind of damage which arises in connection with a ship give5 rise to a maritime lien. We, however, hasten to add that this is apart from the statutory enactments which may further list out various other forms of maritime claims. In the Ripon City [(1897) P. 226, 246], Gorrel Barnes, J. upon appreciation of this facet of a maritime lien and also, in part, to the surrounding policy considerations observed : ... ".......

Amaritime lien travels with the vessel into whosoever possession it comes, so that an innocent purchaser of a ship may find his property subject to claims which exist prior to the date of his purchase, unless the lien is lost by laches or the cl?. im is one which is barred by the Statutes of Limitation. This rule is stated in The Bold Buccleugh...... to be deduced from the civil law, and, although it may be hard on an innocent purchaser, if it did not exist a person who was owner at the time a lien attached could defeat the lien by transfer if he pleased. " As regards the issue ofrelationship between a maritime lien and personal liability of a res owner, Thomas has the following further to state : "The issue as to the relationship between a maritime lien and the personal liability of a res owner is therefore one which may fall to be answered differently as between individuals maritime liens.

It is clear that the various maritime liens do not, in this regard, display common characteristics. The fact that there exists this disparity may in turn be a symptom of the absence of any clearly defin°ed theoretical framework in the development ofthe law relating to maritime liens. It is also noteworthy that the emphasis on personal liability is most clearly established in relation to the damage and disbursement maritime liens which were the last in point of time to be established. " As regards the merits of the matter presently, Mr. A. T. M. Sampath, commented that the factum ofcontract between the parties was clearly admitted by the agent of the respondent vessel in its counter dated 24. 6. I996 in Application No. 1147of1996. The admission of the Vessel is as follows:- "As per the . contract between the plaintiff and the respondent dated 20. I0. 95 there is absolutely no provision for payment of 24% interest in the case of any delayed shipment".

It is in this context it has been contended that the respondent vessel never disclosed the owner of the vessel in the written statement and reply statement and as a matter of fact till date the respondent vessel did not disclose who is actually contesting the case. For the first time in the cross examination they marked the "Lloyd's Maritime Directory" of the year 1998 and in which the owner of the vessel has been shown as one Pambridge Maritime Inc. , Panama City. Only in the Additional Written Statement for the first time it has been stated that the owner is in Hongkong, but even the name of the owner was not disclosed. The records depict that the respondent vessel filed a power of attorney before the trial court. In which Skarrup ... Management of Hongkong gave power of attorney in favour of one PC Thilak and Venkatachalam. The above said Venkatachalam filed the counter in O. A. No. 1147 of 1996. But P. C.

Thilak the other power of attorney subsequently filed a reply statement, in which he has stated that the admission made by the other power agent is without getting the instruction from the owner and without knowing the fact that they are not the parties to the document but yet the respondent vessel did not disclose as to the owner of the vessel. Further reliance was placed on the decision of this Court in Nagindas p Ramdas v. Dalpatram Ichharam alias Brijram and Ors. , (1974] I SCC 242, wherein this Court in paragraph 27 stated as regards the admissions of pleading the following : . "......... Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof.

They by themselves can be made the foundation of the rights of the . parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence,. are by themselves, not conclusive. They can be shown to be wrong. " In continuation of his submission as regards the fixture note it has been the definite submission of Mr. Sampath that the Japanese Company cannot but be said to be the disponent owner of the vessel M. V. WON FU and, however, thus leads us to the next issue as regards the maintainability of the suit upon an assumption that the latter has been the disponent owner. Black's Law Dictionary (7th Edition) illustrates the meaning of 'dispone' being available in Scot's Law and means to grant or to convey.

It is on this score, Order XLII Rule 2 of the Original Side Rules of the Madras High Court has been referred to, which reads as below : "A suit shall be instituted by a plaint drawn up, subscribed and verified according to the provisions of the code, save that if the suit is in rem, the defendants may, subject to such variations as the circumstances may require, be described as "the owners and parties interested in the vessel" or other property proceeded against instead of by name. " Mr. Sampath contended that the suit is filed under the admiralty jurisdiction in rem in the Original Side of the High Court of Judicature at Madras and not in personam since the respondent vessel as per the fixture note was bound to make itself available in Tuticorin Port and the laycan time was fixed as 25th October-5th November to load 8,000 MTs and the destination was Taiwan. The buyer of the cargo is San-I-Mining, Taiwan.

The appellant informed the same to his buyer immediately after entering of the agreement with Taiyo in Ex. P. 2 dated 26. 10. 1995. Further it has been stated that in order to avoid demurrage, the cargo was transported from the appellant's stockyard to the local clearing and forwarding agent Mis Lotus Marine Shipping Clearing and Forwarding Agent's stockyard near the Port and thus it is a duty incumbent of the Charterer to be ready with the cargo near the stockyard for immediate shipment. It has been contended that once the contract was entered between the parties and the ship is available for shipment of the cargo, it is the bounden duty and obligation under the contract for the. owners and master of the vessel to make available of the ship as agreed in the contract and any breach, if occasioned, would entitle the Charterer to claim damages for the loss. In the present case the ship is within the territorial water of India.

The ship is unloading iron cargo at Madras Port as per appellant's agent's information to the appellant. The appellant informed the same to his buyer in Taiwan in Ex. P2 on 26. 10. 1995. The appellant when waited for the ship to reach the Tuticorin Port to load his cargo, he received the message, the copy of fax message sent to the disponent owner from his agent in Malaysia in Ex. P. 3 dated 27. 10. 1995 stating that the respondent vessel is dropping the business and it contains further infonnation that if the vessel did not perform this contract it would result in serious consequences. Mr. Sampath contended that the appellant immediately filed the suit on 30. 10. 95 under the admiralty jurisdiction in rem and the order of arrest was passed on 1. 11. 1995 and the ship was arrested on 2. 11. 1995. One Skarupp Management, Hongkong entered appearance through its counsel Mis King & Patridg~.

(But no affidavit of'interest was filed as enumerated in the Original Side Rules and this came to the knowledge of the appellant only when the appellant filed a petition to peruse the records at the time of trial. ) To release the vessel; a bank guarantee was given and the ship left the jurisdiction of India upon furnishing ·security for the release. It is on this score very strong emphasis has been laid on the decision of this Court in M V. Elisabeth (supra). Special attention has been drawn to paragraph 44 of the Report in M. V. Elisabeth which reads as below : "The vital significance and distinguishing feature of an admiralty action in rem is that this jurisdiction can be assumed by the coastal authorities in respect of any maritime claim by arrest of the ship, irrespective of the nationality of the ship or that of its owners, or the place of business or domicile or residence of its owners or the place where the cause of action arose wholly or in part. " In para 44 of M. V.

Elisabeth (supra) it has been further observed as follows: ":..... In admiralty the vessel has a juridical personality, an almost corporate capacity, having not only rights but liabilities (sometimes distinct from those of the owner) which may be enforced by process and decree against the vessel, binding upon the world, for admiralty in appropriate cases administers remedies in rem, i. e. against the party personally. " It is submitted that in the present case the respondent vessel entered appearance through its counsel but the affidavit of interest by the owner of the vessel was not filed and the respondent vessel without disclosing its owner contested the case. Again emphasis should be made to the fact that Skarrup ·Management of Hongkong filed a power of attorney in favour of two persons jointly and severally. In the course of the cross-examination of the PW. I for the first time the respondent vessel produced Lloyd's Maritime Directory Ex.

DI and claimed that one Pambridge Maritime Inc. , ofPanama City was the owner in the year 1998. But in the additional written statement filed by the respondent vessel on 30. 7. 1998 in para 2 it has been stated as follows: ( '\ "It is submitted that the aforementioned counter affidavit was filed in reply to the plaintiffs applications for amendment when the Defendant's agents in Chennai did not have complete instructions from the defendant who is at Hongkong. " The additional written statement and the Lloyd"s Maritime Directory are of the same year 1998. But in the additional written statement there is no mentioning that the respondent is at Panama City. The Lloyd's Maritime Directory of the year 2000 did not contain the name of M. V. Won Fu. The book is published every year. Even the author of the book did not guarantee its authenticity. The power of attorney of Skarupp Management after the disposal ofthe O. S. A.

filed a petition seeking the permission ofthe High Court permitting the respondent's counsel to withdraw the amount, for the sole reason that the order of the High Court in C. S. No. 1693 of 1995 is that the money, which is lying in the fixed deposit in the credit of the suit, should be refunded to the respondent vessel. As per the order of the High Court the money can be paid only in favour of Pambridge Maritime Inc. In the application seeking the permission of the Court to permit the respondent's counsel to withdraw the amount once again it has been stated that the owner is in Hongkong. Jhus, the suit is contested without disclosing the ownership of the respondent vessel before the Lower Court as well as before this Court. Thus the suit is stated to be contested in rem and not in personam. Mr. C. A.

Sundaram, Senior Advocate, appearing for the respondent, on the other hand very strongly contended that even assuming that an agreement had come into effect between the owner and the disponent owner, but unless the charter was by demise, whereby the possession and control of the vessel has to be given to the disponent owner, question of enforcing the same in an action in rem and against the res would be rather futile. Incidentally, this aspect ofthe matter, namely, the action in personam and the action in rem has been rather elaborately dealt with in M V. Elisabeth (supra) as also in M. V. AL Quamar (supra). ' 1 Even, however, assuming the agreement has in fact been entered into l ! t \ by the disponent owner, unless sufficient evidence is laid that the charter was by demise, whereby the possession and control of the vessel was given to the disponent owner, question of pursuing the cause of action against the vessel would not arise.

Needless to add that charter parties are ofthree kinds; J (a) Demise Charter; (b) Voyage Charter; and (c) Time Charter. Whereas in ( demise charter, the vessel is given to the charterer who thereafter takes complete control of the vessel including manning the same, in both voyage , charter and time charter, master and crew are engaged by the owner who act ' under owner's instructions but under the charterer's directions. Simply put, voyage charter is making available the vessel for use ofcarriage for a particular voyag~ and the time charter correspondingly is where· the vessel is made available for carriage ofcargo for a fixed period oftime. In the contextual facts, apart from the fixture note, no other documentary support is available as to whether ownership arose through a charter by demise and possession and control of the vessel has already been given to the disponent owner.

The facts disclose that the disponent was an intending charterer of the vessel from the owner and it is on expectancy of such a contract, the fixture note was issued. There was as a matter of fact no charter party or agreement with the ch~rterer and ! ;ome eventuality in future is stated to be the basis of the cause of action. It is on this score we think it expedient to record that even upon assumption of the appellant's case at its highest, no credence can be attached thereto. The disponent owner was not a demise charterer but it is on the happening of such an event in futuro that such a fixture note has been issued. In our view there is no sufficient evidence available as regards the action in rem making the vessel liable in the contract said to have been entered into, as recorded in the fixture note.

It is in the nature of a breach of contract and liability of the vessel would not arise, though however, we are not expressing any opinion as regards the maintainability of an action in personam or its eventual success. Inasmuch as the claim in the present case arises out of contract de hors a maritime lien, no action in rem is permissible, neither a suit in the original jurisdiction of the Madras High Court can be maintained against the vessel. On the wake ofthe aforesaid, this appeal fails and is dismissed, without, however, any prejudice to initiate further action in personam. No costs. K. K. T. Appeal dismissed.