Notice of Motion No. 767 of 2014 in Admiralty Suit No. 84 of 2013. Case: The State of Maharashtra Vs MV MSC Clementina and Ors.. High Court of Bombay (India)
| Case Number | Notice of Motion No. 767 of 2014 in Admiralty Suit No. 84 of 2013 |
| Counsel | For Appellant: Darius Khambata, Senior Advocate, Amitava Majumdar, Aditya Krishnamaurthy, Josy John, Nihal Shaikh, Naira Jejeebhoy and Vikram Deshmukh i/by Bose & Mitra & Co. and For Respondents: Harsh G. Pratap, Adv. |
| Judges | K. R. Shriram, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rules 11, 11(a), 11(d); Order XIV Rule 2; Section 12; Merchant Shipping Act, 1958 - Sections 3(1), 356(H), 56(1)(B), 356(B)(D) |
| Judgement Date | March 24, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
K. R. Shriram, J.
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On 7.8.2010 a collision took place between m.v.MSC Chitra and m.v.Khalijia-III in the Port & harbour of Mumbai. In the collision, fuel tanks of m.v.MSC Chitra got ruptured and there was spillage of bunker fuel of unknown quantity. Some containers from m.v.MSC Chitra also fell over board. m.v.MSC Chitra thereafter was towed to outside the exclusive economic zone of India where she eventually sank.
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It is not in dispute that there was some spillage from m.v.MSC Chitra. It is not in dispute that containers with dangerous cargo were on board on m.v.MSC Chitra and many such containers, due to the collision, fell over board and were floating or even sank for that matter. When the incident happened, a monsoon ban on fishing was in place. Between April-15th to August 15th every year there is a ban/restriction on fishing activities. Even though the incident happened, admittedly the ban on fishing was not extended. In fact, the fishing activities restarted on 16.8.2010 but the plaintiffs issued an Advisory advising the fishermen to be careful regarding floating containers and also to avoid fishing wherever there was spillage.
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Various co-operative/association of fishermen who fished for a livelihood, in or around Mumbai, at the request of the State Government, in identical fashion have given statements of alleged monetary losses suffered by fishermen, who are their members. The fishermen were actually looking for compensation for economic loss. At the relevant time, the then Chief Minister of State of Maharashtra is reported to have made a statement to the Press wherein he was advising people to refrain from eating fish because the fish sold in the market might have got contaminated or polluted due to the spillage from m.v.MSC Chitra. The fishermen have stated that due to this, people stopped eating fish and they also had to take back the fish from the market.
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The plaintiffs, soon after the incident, appointed a Committee of experts for assessment of loss to fish sellers or compensation to be paid to fishermen. This Committee vide a report dated 20.9.2010 has recommended a sum of Rs. 8.05 crores be paid as compensation to the fishermen and fish sellers who have suffered loss and livelihood due to the spill from m.v. MSC Chitra. On 17.8.2013 this suit came to be lodged. Defendant No. 1 was introduced by way of an amendment on 19.8.2013. The plaintiff is the State of Maharashtra through the Commissioner of Fisheries, Department of Fisheries, Government of Maharashtra, the defendant No. 1 is alleged to be the sister ship of m.v.MSC Chitra, defendant No. 2 is the bareboat/demise charter of defendant No. 1 and m.v. MSC Chitra, defendant No. 3 are the managers of defendant No. 1 and were also the managers of m.v.MSC Chitra. Defendant No. 4 is the registered owner of m.v.MSC Chitra and the defendant No. 5 is the registered co-owner of defendant No. 1. However, it is yet to be decided whether m.v.MSC Chitra was to be blamed for the collision or not.
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This suit has been filed by the plaintiffs due to the damage caused to the environment and consequent loss caused to fishermen who were alleged to be affected by the spillage from m.v. MSC Chitra. The entire foundation of the case is in one sentence in paragraph No. 1 of the plaint where the plaintiffs have averred "The plaintiff have a parens patriae locus standi to initiate the instant proceedings on behalf of the affected fishermen".
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The plaintiffs moved to arrest defendant No. 1 on the basis that defendant No. 4 and defendant No. 5 are only shell companies which owned m.v.MSC Chitra and defendant No. 1 and both these companies are under beneficial ownership of defendant No. 2 who was the bareboat charterer of defendant No. 1 and m.v.MSC chitra and hence, defendant No. 1 is the sister ship of m.v.MSC Chitra.
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By an ex-parte order dated 19.8.2013 the 1st defendant vessel came to be arrested. Upon the defendant No. 2 depositing in this Court a sum of Rs. 8,13,00,000/-, without prejudice to the rights and contentions or the defences of the defendant No. 2 including jurisdiction and limitation, the 1st defendant-vessel by an order dated 20.8.2013 came to be released.
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After furnishing security, the defendant No. 2 has taken out this present Notice of Motion for rejection of the plaint under Order 7 Rule 11(a) and/or (d) of the Code of Civil Procedure 1908 and after vacating/setting aside the order of arrest, return the security of Rs. 8.13 crores and in the alternative, the amount of security be reduced to such amount as this Hon'ble court may deem just and proper.
The case of the applicant stands on 4 limbs. (1) the plaintiff has no locus standi to maintain this action; (2) the plaintiff has not made out a prima-facie or a reasonably best arguable case; (3) defendant No. 1 is not the sister ship of m.v.MSC Chitra and (4) in any event, the claim of the plaintiff is barred by limitation.
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No locus standi
The counsel for the applicants submitted that the Courts have recognized the concept of parens patriae only in very few situations. What is parens patriae is extensively dealt with by the Apex Court in (1990) 1 Supreme Court Cases 613 Charan Lal Sahu v. Union of India. The counsel submitted that parens patriae is the inherent power and authority of the State to provide protection to the person and property of persons who are under some disability and who are not in a position to assert and secure their rights such as minors or people suffering from insanity or other incompetent persons who have no rightful protector. It is submitted that the Government is only within its duty to protect and control persons under disability. Otherwise the Government will have to enact a Legislation like the Bhopal Gas Leak (Processing of Claims) Act 1985 (Bhopal Gas Act) where the Central Government took over the responsibility of fighting litigation on behalf of victims of Bhopal Gas. By enacting the said Act the Government sought to create a locus standi in the Central Government to file suits on behalf of victims and by creating this locus-standi the Central Government became competent to institute judicial proceedings for payment of compensation on behalf of the victims. He submitted that the object of the Statute was itself because of the dimensions of the tragedy covering thousands of people, who would not be able to go to the Courts. It was felt necessary to create the locus standi in the Central Government to start the litigation for payment of compensation in the courts on their behalf. He submitted that if the Government would have had in every case to step in as parens patriae then there was no need to enact the said Act. Therefore, an inference should be drawn that unless there is a Legislation to that effect, the plaintiffs have no locus standi. He also submitted that even when the Statute itself was enacted, the object was because of the sheer dimension of the tragedy and the large number of people affected, most of whom were very poor who are unable to go to the Court. Mr. Pratap submitted that, that is not the case.
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In the alternative, Mr. Pratap submitted that even assuming a claim could be made for environmental damage or this court agrees with the plaintiff that the claim is for environmental damage due to oil pollution, still the plaintiff cannot maintain this action. Mr. Pratap relying upon part 11A of the Merchant Shipping Act, Section 356(1)(B), Section 356(B)(D) and 356 (H), submitted that the action can be maintained only by the Director General of Shipping or the Central Government and not the State Government.
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No prima-facie or reasonably arguable best case
The counsel submitted that the entire case of the plaintiffs is speculative. He submitted that the plaintiffs have placed reliance on the report of a Committee which report has based its findings on various newspaper reports and representations received from certain fishing co-operatives. Based on these representations, the committee has arrived at a figure of Rs. 8.05 crores, the amount claimed in the suit. He also submitted that it is not the plaintiffs' case that the fishermen have suffered any loss because there is no evidence to the effect that they have suffered any loss. It is not the plaintiffs' case also that they are going to recover these monies and distribute the amounts to the fishermen.
It is necessary to note that the plaintiffs, though have stated that the suit was being filed representing the fishermen, the averments in paragraph-20 reads as under:--
"The plaintiff state that the Defendant(s) are jointly and/or severally strictly and/or absolutely liable to compensate the plaintiff for all costs, losses, damages incurred as a result of the pollution caused without any exceptions".
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Mr. Pratap also submitted, in the alternative, that in any event, the monsoon ban on fishing was operative till 15th August and the Shravan month also began and therefore, in any case the fishermen would not have been able to catch fish or sell fish to the extent they wanted to and therefore, there was no loss in fishing activities or loss to the fishermen caused due to the spillage from m.v.MSC Chitra. He also submitted that no fishermen has been identified and nobody is paid off by the Government. He further submitted that the data relied upon by the plaintiffs to arrive at the figure as mentioned in the particulars of claim are not available. Just because there is a pleading of loss, does not entitle the plaintiffs to obtain security or even claim.
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Time bar:--
The suit was lodged on 17.8.2013, i.e., 3 years after the incident which happened on 7.8.2010. He also submitted that the plaint to include defendant No. 1 was amended on 19.8.2013 and therefore, the claims are time barred. He submitted, in the alternative and without prejudice, that at the most the plaintiffs may claim security only for 3 days which, at about Rs. 54 lakhs per day that the plaintiffs...
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