THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN CS.No.931 of 2003
1. K.I.R.DE Silva
2. W.M.T.S.Weerabahu
3. P.M.Rajapakse
4. D.D.W.Sudath
5. J.Sithambarapillai
6. W.A.C.Kumara
7. A.R.P.W.Ranawalage
8. S.J.W.W.V.Lekamalage
9. S.C.Mallawaarachchie 10.D.B.K.H.Kehal Ella 11.I.A.S.W.Gunarathna 12.N.H.P.Abeywaardena 13.J.H.R.Jayakody 14.R.M.Hettarachchi Plaintiffs Vs Owners and parties interested in the Vessel M.V.Essco Horizon represented by its Master, Now lying at the port of Chennai Defendant Prayer:- This Civil Suit is filed under Order VII Rule 1 of CPC read with Order II Rule 1 of the Original Side Rules for the reliefs as stated therein.
For Plaintiffs : Mr.Vasudevan For Defendant : Mr.Ranganatha Reddy JUDGEMENT The Plaintiffs, 14 crew and Officers on board the vessel, M.V.ESSCO http://www.judis.nic.iHn ORIZON, lying at the Port of Chennai, represented by their Power of Attorney Agent, M.Arunachalam, had filed the suit under Order XLII Rule III of the Original Side Rules, Madras High Court, seeking a judgement and decree against the defendant, Owners and Parties, interested in the Vessel, M.V.ESSCO HORIZON, represented by their Master, for a sum of US$56,873.77, equivalent to Rs.26,44,631/- together with wages, all allowances and repatriation charges till the last date of discharge with interest @ 24 % from the date of the plaint till the date of realization and for arrest and sale of the vessel in as is where is condition and to adjust the sale proceeds against the suit claim with interests and costs and for costs of the suit.
2. The suit was filed on 15.12.2003 when the said vessel was lying in the Port of Chennai. In the plaint, it had been stated that the vessel was flying a Panamian Flag and was owned by Essco Maritime, Lambarki Street, Piraeus, Greece. It had been further stated that the plaintiffs, crew and officers were Srilankan Nationals. They filed the suit claiming arrears of wages. They had given the details of their employment and the wages due to each one of them. On 11.12.2003, the plaintiffs had approached the International Transport Workers Federation for their assistance in recovery of wages. They then gave a complaint to the Shipping Master of the Mercantile Marine Department on 12.12.2003. However the defendants failed to pay the wages. The suit was filed seeking the reliefs stated above.
3. At the time the suit was moved, this Court had ordered arrest of the vessel. The defendant was then represented by M/s.King and Partridge, Advocates, who filed A.No.5413 of 2003 and this Court passed an order permitting the vessel to sail on their executing a Bank Guarantee to the http://www.judis.nic.in satisfaction of the 1st Assistant Registrar (Original Side), (INR 12,60,000/-), and the wages of the plaintiffs. The Bank Guarantee was executed and the wages were settled to an extent of US $ 32,485.27. Subsequently, M/s.King and Partridge, Advocates had filed A.No.605 of 2005, seeking revocation of their vakalath filed on behalf of the defendants. On perusal of the averments therein, this Court had observed that they had spent money for execution of the Bank Guarantee and for meeting the additional expenditure. They had not been paid their professional fees also. This Court had directed that the Assistant Registrar (Original Side) must invoke the Bank Guarantee and the amount to be kept to the credit of the suit until further orders.
4. Subsequently, the plaintiff was invited to lead evidence to substantiate their claim. Accordingly, the Power of Attorney of the plaintiffs, M.Arunachalam had filed his proof affidavit and marked Ex.P1 to Ex.P28 documents. The documents included the Crew Agreements and the Monthly Earning Accounts of each one of the plaintiffs with the defendant and also a copy of the letter dated 11.12.2003 to the International Transport Workers Federation and a copy of the complaint dated 12.12.2003 to the Shipping Master, Chennai Port Trust. The witness was not cross examined by the defendant.
5. This court heard Mr.S.Vasudevan, the learned counsel for the plaintiffs and Mr.Ranganatha Reddy for M/s.King & Partridge, Advocates for the defendant.
6. A Memo of Calculation for compensation amount payable to the crew was filed by the learned counsel for the plaintiff. The following details had http://www.judis.nic.in been tabulated as under:-
Thus, the total amount payable to the plaintiffs come to Rs.6,14,678/-.
7. In 2006 (4) SCC 620, O. Konavalov –vs- Commander, Coast Guard Region, and others, the Honourable Supreme Court had an occasion to deal with confiscation of a vessel by the Government vis-à-vis the pre-existing rights of the crewmen. The Honourable Supreme Court held that “absolute character of vesting following confiscation is absolute only against persons having a proprietary or ownership right in the ship or goods” It was further held that “such vesting denotes a suspension or abeyance of such rights till confiscation is lifted in accordance with law. Such vesting does not extend to extinction of maritime liens, particularly those for seaman’s wages.”
Withholding of wages even when the ship has been confiscated by the http://www.judis.nic.iGn overnment has been deprecated by the Supreme Court. In the instant case, without any rhyme or reason, the wages/compensation payable to the plaintiffs, who are all admittedly crew and officers of the vessel, M.V. ESSCO HORIZON, has been withheld, and hence, I have no hesitation in holding that the plaintiffs are entitled to the reliefs sought for.
8. The Merchant Shipping Act, 1958 has laid down exhaustive provisions for seamen’s wages. The Act itself recognizes that recovery of wages shall not be subject even to attachment. It is seen from the pleadings and documents filed that the plaintiffs had, in vain, on 11.12.2003, approached the International Transport Workers Federation for their assistance in recovery of wages. They then gave a complaint to the Shipping Master of the Mercantile Marine Department on 12.12.2003. However, the defendants failed to pay the wages. I hold that the plaintiffs, who are all admittedly crew and officers of the vessel, M.V. ESSCO HORIZON, have proved their claim.
9. The learned counsel for the defendants also filed a memo enclosing a certificate issued by the Joint Registrar (Original Side) that there was an amount of Rs.13,60,000/- to the credit of C.S.No. 931 of 2003 as Court Deposit, which bears no interest.
10. In view of the earlier order passed by this Court in A.No.605 of 2005, dated 02.09.2009, the suit can be decreed to the extent of the amount lying to the credit of the suit, namely Rs.13,60,000/- (Rupees thirteen lakhs sixty thousand only). Further, as directed earlier in the same order, the counsel for the defendant had filed a memo stating that a sum of Rs.7,45,322/- is due to them. However, Rs.6,14,678/- is due to the plaintiffs, who are all admittedly crew and officers of the vessel, M.V. ESSCO HORIZON.
http://www.judis.nic.in C.V.KARTHIKEYAN, J.
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11. In such circumstances, in accordance with the provision of Order VII Rule 7 of CPC, whereby the Court may grant the relief which it thinks fit and just, this civil suit is decreed on the following terms, however without costs:-
i. The suit is decreed to the extent of Rs.13,60,000/- (Rupees thirteen lakhs sixty thousand only), which is the amount lying to the credit of this suit, CS.No.931 of 2003.
ii. Out of the said sum, Rs.6,80,000/- (Rupees six lakhs eighty thousand only) may be paid by cheque in the name of the counsel for the defendant, as directed in A.No.605 of 2005, by order dated 02.09.2009 on proper acknowledgement.
iii. The balance Rs.6,80,000/- (Rupees six lakhs eighty thousand only) may be paid by cheque in the name of the counsel for the plaintiff, on proper acknowledgement, and who shall also give an undertaking that they shall disburse a sum of Rs.6,14,678/- (Rupees six lakhs fourteen thousand six hundred and seventy eight only) to the power of attorney, of the plaintiffs, M. Arunachalam, for further distribution to the plaintiffs, who are all admittedly crew and officers of the vessel, M.V. ESSCO HORIZON, in accordance with the tabular column mentioned above, and retain the balance towards costs of the litigation.
Index:Yes/No Web:Yes/No Srcm 06.09.2017 Pre-Delivery Judgement in CS.No.931 of 2003 http://www.judis.nic.in