Thursday, August 25, 2016

MARINE POLLUTION FROM SHIP WRECKS ALONG INDIAN COAST - NATIONAL GREEN TRIBUNAL OF INDIA RENDERS A HISTORIC JUDGMENT.



(V.M. Syam Kumar, Advocate, High Court of Kerala)
In what could be termed as a magnum opus on the case law relating to marine pollution in India, Justice Swatanter Kumar former judge of the Supreme court of India and the Chairperson of the National Green Tribunal has recently rendered a judgment holding that “No party from any country in the world has the right/privilege to sail an unseaworthy ship to the Contiguous and Exclusive Economic Zone of India and in any event to dump the same in such waters, causing marine pollution, damage or degradation thereof.”
The erudite judgment was the culmination of a litigation initiated by a citizen inter alia seeking to make the Owner of a vessel and its charterer liable for the damage caused to the ecosystem and pay compensation of the loss to ecology and livelihood in accordance with the ‘Polluter Pays Principle’.
M.V. RAK was carrying coal for and on behalf of an Indian Company. The Ship was carrying more than 60054 MT coal in its holds. The Ship contained 290 tonnes of fuel oil and 50 tonnes of diesel. Its voyage was from Indonesia to Dahej. On its voyage to destination, the ship sank approximately 20 Nautical Miles from the coast of South Mumbai. There was an oil spill in August, 2011 which occurred in the Arabian Sea, off the coast of Mumbai due to the sinking of the ship. The spilled oil from the ship spread beyond Mumbai to Raigad District. Traces were noticed particularly between Uttan in Bhayandar and Gorai beach. Continuous trail of oil leak from the ship was observed upto 12 Nautical Miles. A very thick oil slick up to one nautical mile and a thick layer of oil upto two Nautical Miles was also observed. During the first few days, oil was leaking at the rate of 1–2 tonnes per hour and on August 12, 2011 according to the Applicant, the rate of oil spill was 7 to 8 tonnes per day as per the information of the Coast Guard. Press Information Bureau Report and the press release of the MoEF & CC indicated said statistics. It is reiterated that the ship was carrying more than 60000 MT of coal for Adani Enterprises Limited for its thermal power plant at Dahej in Gujarat. As a result of the oil spill, there has been damage to mangroves and marine ecology of the Bombay coast. Various press information and articles were published in the newspapers during August, 2011 and particularly from 8thto 12thAugust, 2011. The impact of the oil spill has been clearly noticed and is visible on the mangroves of Mumbai. The lower portion of mangroves at Bandra had turned dark because of a layer of oil and got destroyed. The Government had also taken the view that the oil seen at Juhu Beach is due to localized events and not due to oil spill, but this was a misconception. Other accidents of oil leak from other ships had also taken place in 2010 near Uran.
In a detailed judgment the Tribunal examined various national and international legal norms on marine pollution including crucial questions on coastal state’s jurisdiction over its adjacent maritime zones and came down heavily on the polluters.
On the facts of the case it was held that “It is not a case of sinking of a ship by accident simpliciter, but it is a case where element of mens rea can be traced from the unfolding of the events that finally led to the sinking of the ship on 4thAugust, 2011. Non-rendering of requisite help/assistance by Respondent no.5 and other persons interested and responsible, to the Master of the Ship, despite the fact that they had complete knowledge about the status of the ship prior to the occurrence of the incident on 4thAugust, 2011. Furthermore, these Respondents did not adhere to the Principle of Due Diligence pre-voyage, for which they had sufficient means and time. The ship had developed mechanical and technical snags at Colombo and Singapore and the Master of the ship had asked for help there during its onward journey. There is nothing on record to show that Respondent no.5 and other Respondents provided timely assistance to the Master of the ship. It is also on record that there were repeated requests for help and for stoppage of the voyage in the meanwhile. During the entire duration, the owners and the other Respondents directed the ship to continue with its voyage, even though one of the pumps and a generator of the Ship had been rendered non-functional. This is really a case where the doctrine of res ipsa loquitor comes completely into play and the events speak for themselves to the extent that it hardly requires any further evidence to establish the element of negligence, carelessness and ill-design for sinking of the ship with the cargo itself.”
The Tribunal further held that the reports on record exhibit the callous attitude of the persons interested in the ship towards its seaworthiness and safe voyage to Dahej in Gujarat.
It was held that the pollution is not limited to an individual or a singular item. It is a problem of multiple sources of pollution, resulting from oil spill, sinking of the ship and its cargo. It will affect the marine environment that includes sea water, quatic life, shore, seabed, mangroves, tourism and public life of the people living at the shore. The adverse impacts were not seen only at a singular point but at multiple beaches as afore-stated.
Pinning down those directly responsible for marine pollution, the Tribunal held that “We have discussed in great detail all concepts of this case and have held that Respondents no.5, 7 and 11 are liable for all the degradation, damage and pollution of marine environment and the consequences of the defaults in not complying with the Conventions and the law in force in the Indian Waters (Contiguous Zone). While Respondent no.6, who had chartered the ship is responsible and liable for damage and pollution resulting from the cargo, for which, despite the fact that years have gone by, it has made no effort either to remove the cargo or even take the minutest preventive or pre-cautionary measures for controlling and preventing pollution of marine environment.”
“The damage caused by pollution, cannot be computed in terms of money with exactitude and precision. This has to be on the basis of some hypothesizing or guess work as is necessary to be applied in such cases. For instance, the damage caused to the aquatic life, mangroves, sea shore and tourism are incapable of being computed exactly in terms of money. The mangroves were destroyed as a consequence of the oil spill. The quantum of leakage of oil during the first few days, was at the rate of 1–2 tonnes per hour and on August 12, 2011 according to the Applicant, the rate of oil spill was 7 to 8 tonnes per day as per the information of the Coast Guard. It shows the massive oil spill from the ship. Thereafter the ship has been lying at the present location (20 Nautical Miles from the baseline of the Mumbai shore). The ship itself has dead weight 63695 with a cargo of 60054 MT and with all other metallic and non-metallic substance such as asbestos, machines, oil, grease and other elements including the coal as cargo of the sunken ship.”
Evoking the ‘Precautionary Principle’ in light of the facts of the present case, the Tribunal held that the Owners and the Charterers  have completely ignored this principle and did not take due precautions at the appropriate time. Even after the accident, none of them have taken any steps to remedy the wrong since they are content with the dumping of the ship along with its cargo in Indian waters as they have not suffered any liability in that regard.”  This is a patent and flagrant violation of the Precautionary Principle. Serious pollution has been caused by the oil spill and by the sinking of the ship and the cargo. The environment as already noticed under the Indian jurisprudence has been given a very wide meaning and practically covers whatever one can think the term may include.
The judgment rendered by Justice Swatanter Kumar is an important milestone in the evolution of marine pollution law in India. Finally Indian legal system has a judgment albeit from a Tribunal, laying down the basic tenets of marine pollution jurisprudence. This judgment will serve as a beacon for further legal decisions on marine pollution.   
The Judgment of the National Green Tribunal can be read here:

Monday, August 8, 2016

Is the Arbitration clause in a Multimodal Transport Document/ Bill of lading binding ?



(V.M. Syam Kumar, Advocate, High Court of Kerala)
The High Court of Kerala has in the judgment dtd. 8th September, 2015 in Caravel Shipping Services Pvt. Ltd. v. Premier Sea Foods Exim Pvt. Ltd. [2015 (4) KLT 1035] held that the existence of an Arbitration clause in a Multimodal Transport Document/ Bill of lading by itself does not entitle the Carrier/ Multimodal Transport Operator to seek a dispute arising from the said contract of carriage to be referred to Arbitration.
The Carrier had the moved the Hon’ble High Court under Art. 227 of the Constitution of India challenging the Order of the Subordinate Judge’s Court, Kochi wherein the prayer for referring the dispute to arbitration under S.8 of the Arbitration and Conciliation Act, 1996 made by the  Multimodal Transport Operator was rejected by the Sub-Judge.
The relevant facts as stated in the judgment of the High Court are as follows:
The plaintiff company had entrusted to the defendant, a carrier, 28,000 kgs. Cargo of frozen sea food, stuffed in a container, and covered by a bill dated 25.10.2008 for delivery at Port - Bandar Abbas, Tehran, Iran. The Cargo was shipped on board from Cochin Port on the same day. On 18th November 2008, it was informed by the office of the defendant that the Cargo container got damaged and part of the Cargo perished. Consequently, the proposed buyer refused to accept the consignment. Alleging that the plaintiff sustained loss due to default of defendant, a claim for USD 53,959.80 with interest was set up, and after issuing a notice, the suit was instituted claiming `26,53,593.00 with 11.5% interest. The defendant appeared and filed I.A. 486/2009 contending that the entrustment of cargo and its transportation were governed by Ext.P3 which was a Multimodal transport document as provided under the Multimodal Transportation of Goods Act, 1993 (herein after referred as the “Multimodal Act”). Clause 25 of the document specifically contemplated settlement of disputes by arbitration and conciliation and the jurisdiction of Civil Courts stood ousted in view of S.26 of Multimodal Act. The plaintiff, in the counter affidavit disputed the above and contended that, Ext.P3 was only a unilateral receipt and was not a Multimodal transport document and there was no consensus ad-idem between the parties to enter into an agreement for arbitration. The court below negatived the contention of the defendant, holding that the Contract of Carriage was not a Multimodal Transport document and that S.26 of the Multimodal Act and the Arbitration Act have no application to the facts of the case. The said Order of the Sub-Judge was challenged before the High Court.
It was contended by the Carrier based on Clause 25 of the Contract of Carriage that the arbitration clause therein operated as a bar in instituting a Civil Suit for enforcement of rights arising there from.
Clause 25 verbatim reads as follows:
“JURISDICTION/ARBITRATION: The contract evidenced by the Bill of Lading shall be governed by the Laws of India, and subject to the exclusive jurisdiction of Court in Chennai only. Dispute/Difference arising out of this contract and/or in connection with the interpretation of any of its clauses shall be settled by arbitration in India in accordance with the Arbitration & Conciliation Act, 1996. The No. Arbitrators shall be three, the Arbitrators shall be commercial persons. The venue for arbitration shall be Chennai.”
It was contended by the carrier that he was a Multimodal Transport Operator as defined under the Multimodal Act, having under taken a Multimodal transportation with the plaintiff evidenced by Ext.P3 Multimodal transport contract.
By virtue of Clause 25 extracted above, plaintiffs are bound by the arbitration clause in the light of S.26 of the Multimodal Act. The plaintiff contented that Ext.P3 was only a receipt evidencing a bill of lading, there was no consensus ad-idem in relation to terms of Ext.P3 and that it did not evidence a Multimodal contract.
It was contended by the Consignor  that a multimodal transport contract should involve undertaking of at least two different modes of transport, which was not involved in this case. The reply of the Carrier was that the factory of the plaintiff was at Alapuzha and empty container was delivered to the consignor, who stuffed it at Alapuzha, transported by road to Cochin Port and thereafter transported by sea, to Port Bandar Abbas by vessel OEL Dubai V029. Admittedly, an empty container was delivered to the consignor, which is also seen endorsed in Ext.P3, against the column of container no. According to Consignor, they themselves stuffed the container with goods. Thereafter, it was inspected by officials of State Live Stock, Marine and Agri products, and thereafter by Lloyds Agency, Kochi and both issued necessary certificates. It was thereafter handed over to Carrier with all records. In para 12 of the plaint, the cause of action is stated to have arisen, when the Consignor entrusted the container to the Carrier for shipment at a place within the jurisdiction of the Kochi court. Court noted that evidently, the Consignor had specifically pleaded that though the container was transported from Alapuzha, only the part of transportation by sea alone was undertaken by Ext.P3. This pleading it was noted was not denied by the Carrier.
As regards the nature of the document, ie., whether it is a Multimodal Transport Document or a Bill of lading, the High Court concluded as follows: “ Ext.P3 shows that the column of Place of Receipt is blank. However, Port of loading is shown as Cochin and place of delivery as Bandar Abbas, Iran.  The entries indicate that Cargo was shipped on board the vessel on 25th October 2008. There is absolutely no reference in Ext.P3 that either the container was entrusted at Alapuzha or that the freight charges included transportation from Alapuzha. Evidently, though the cargo moved both by road and by sea, the contract with defendant was for carriage of goods by sea alone.”
Based on the Multimodal Transportation of Goods Act,1993, the learned Judge reasoned as follows:
“Under S.2(l), to be a Multimodal transport contract, the Multimodal transport operator should undertake to perform or procure the performance of Multimodal transportation. Under S.2(k) Multimodal transportation means carriage of goods, by at least two different modes of transport under a multimodal transport contract from the place of acceptance of goods in India to a place of delivery outside India. A co-joint reading of S.2(k) and 2(l) undoubtedly shows shows that to be a Multimodal contract, the operator should undertake to transport by two modes. In other words, under the contract or by virtue of the contract, the transportation should involve two modes, from a place in India to a place of delivery outside India. The terms “two different modes of transport” found in S.2(k) does not qualify “carriage of goods” but refer to multimodal transport contract. In the instant case, though the goods were transported by two modes, only one part, that is the carriage by sea, alone was covered by Ext.P3. Consequently Ext.P3 cannot be considered as a Multimodal transport contract.”
“It is true that Ext.P3 is captioned as a Multimodal Transport document/Bill of lading. From the nature of the Caption, it could either be a Multimodal transport contract or a bill of lading. However, for the reasons stated above, it could not be treated as a Multimodal transport contract.”
The Court then proceeded to consider the crucial question regarding the binding nature of the Arbitration clause in the contract of carriage.
The Consignor had contended that Ext.P3 did not evidence a binding arbitration agreement. It was argued that it was not signed by the Consignor and that there was no consensus ad-idem to enter into an agreement of arbitration.
This was countered by the carrier contending that that it is not essential that the agreement should be signed by the parties, if the terms of the transaction discloses an intention to refer for arbitration and will be satisfied if the clause of arbitration on an invoice is brought to the notice of other party. It was argued by the learned counsel for the carrier that the entrustment  of the goods subject to the terms and conditions laid in Ext.P3, and by accepting a copy of the Ext.P3, by the Consignor, statutorily constituted the creation of a valid arbitration agreement. It was further contended that under S.7 of the Multimodal Act, a statutory liability is cast on the Multimodal operator to issue the Multimodal agreement to the consignor and by complying with that statutory liability, parties have voluntarily entered into the agreement.
The learned Judge concluded that the existence of an Arbitration clause in a Multimodal Transport Document/ Bill of lading by itself does not entitle the Carrier/ Multimodal Transport Operator to seek a dispute arising from the said contract of carriage to be referred to Arbitration by the following reasoning:  
“S.7 only enables a consignor who has entered into a contract for Multimodal transportation, to issue a multimodal document, at the option of the consignor. This presupposes entering into a contract for multimodal transportation. The term contract used in the definition of “Multimodal transport contract” and “Multimodal transport document” and in other parts of the Multimodal Act has not been specifically defined. Though by S.29 of the Multimodal Act, it shall have overriding effect over all other enactments, not with standing anything contained in any other law, the term contract shall by necessary implication can only have the meaning and content of the term contract as defined under the Indian Contract Act, 1872. Hence all the essentials required for entering in a valid contract will be required for entering into a Multimodal contract. In the case at hand, apart from entering into an agreement relating to the essential terms for transportation of goods by sea and for the payment of freight charges, it does not appear that there was consensus ad-idem for entering into an arbitration agreement. There is nothing to show that Clause 25 was ever brought to the notice of plaintiff. Hence the contention of the defendant does not appear to be sustainable.”
The High Court of Kerala thus held that there was no illegality or irregularity in the application of law, or exercise of jurisdiction by the court below warranting an interference under Article 227 of the Constitution of India and hence dismissed the original petition by the carrier.
 The finding of the Learned Judge based on facts that the document issued by the carrier which evidences only a single mode of transportation will not come within the purview of the Multimodal Transportation of Goods Act,1993 is precisely correct.
However the the reasoning given in the judgment for holding that the arbitration clause in the bill of lading does not bind the parties to the carriage, viz., the Consignor & the Carrier appears to be insufficient and requires closer examination.   
The reasoning given by the learned judge is that the term contract of carriage whether a Bill of lading or a Multimodal Transport Document can by necessary implication only have the meaning and content of the term contract as defined under the Indian Contract Act, 1872. Hence all the essentials required for entering in to a valid contract will be required for entering into a Multimodal contract.
We cannot have a quarrel up till the above part of the reasoning of the learned Judge.
However, subsequent part of the reasoned statement that “In the case at hand, apart from entering into an agreement relating to the essential terms for transportation of goods by sea and for the payment of freight charges, it does not appear that there was consensus ad-idem for entering into an arbitration agreement. There is nothing to show that Clause 25 was ever brought to the notice of plaintiff.” has been made totally overlooking the nature and validity of the clauses on the reverse of the bill of lading especially the Judgment of the Hon’ble Supreme Court in British India Steam Navigation Company v. Shanmughavilas Cashew.
The above judgment throws up very crucial legal questions concerning the binding nature and validity of numerous clauses in the bill of lading vis – a- vis the consensus ad idem requirement under contract law.
If the arbitration clause in the bill of lading lacks consensus ad idem and is not binding, what would be the status of the other clauses in the bill of lading including the Himalaya Clause, New Jason Clause etc.?
Would those terms on the reverse of the bill of lading which are the result of the accumulated experience of the marine carriers though centuries of operation and which have been tested in Hague, Hague-Visby, Hamburg and Rotterdam Rules and approved in statutes like Indian Carriage of Goods by Sea and the Bill of lading Act be negated by a single stroke of purported lack of consensus ad idem?
Does  consensus ad idem requirement have any relevance at all in the case of titular documents like the Bill of lading and Multimodal Transport Document which can be endorsed to third parties conferring on them titular rights over the cargo covered?
What impact would the judgment have when in maritime law we frequently are confronted with the phenomenon of incorporation into a bill of lading the arbitration clause in a charter party  
The above are a few of the questions of legal relevance that arise for consideration in the back drop of the judgment in  Caravel Shipping Services Pvt. Ltd. v. Premier Sea Foods Exim Pvt. Ltd. [2015 (4) KLT 1035].

 **************************************************************************************

Sunday, July 10, 2016

Some suggestions on the Inland Vessels (Prevention and Control of Pollution and protection of Inland Water) Rules, 2016

Efforts to evolve the Rules relating to Prevention and Control of Pollution and protection of Inland Water is a welcome step. 
Since the State of Kerala has a wide network of Inland waters the said Rules are of enormous relevance to the state.
The Kerala Backwaters are a network of interconnected canals, rivers, lakes and inlets, a labyrinthine system formed by more than 900 km of waterways, and sometimes compared to the American Bayou. In the midst of this landscape there are a number of towns and cities, which serve as the starting and end points of backwater cruises. National Waterway 3 from Kollam to Kottapuram, covers a distance of 205 km and runs almost parallel to the coast line of southern Kerala facilitating both cargo movement and backwater tourism. The important rivers from north to south are; Valapattanam river (110 km.), Chaliar (69 km.), Kadalundipuzha (130 km.), Bharathapuzha (209 km.), Chalakudy river (130 km.), Periyar (244 km), Pamba (176 km), Achancoil (128 km.) and Kalladayar (121 km.). Other than these, there are 35 more small rivers and rivulets flowing down from the Ghats. (as per info available on line)
Most of these rivers are navigable up to the midland region, in country crafts. These waters are ecologically fragile and hence the importance of the above Rules need not be overemphasized.
The Rules are enacted as empowered under the Inland Vessel Act, 1917. The Draft Rules envisages measures to prevent and control pollution and to protect inland water.  
On a study of the draft of the Inland Vessels (Prevention and Control of Pollution and protection of Inland Water) Rules, 2016 the following aspects require consideration:
1.   The draft Rules do not take note of the main vessel board pollution sources.
2.   The Rules do not mention the standards of safety to be maintained on board vessels.
3.   No provision is seen incorporated for Control of discharge of oil or oily mixtures from vessel’s machinery.
4.   Most pollution of the inland waters arise out of operational incidents which in turn arise out of failure to follow procedures.  
5.   There has to be a fixation of liability on the Vessel owners/ operators and heavy fines and/or imprisonment for those involved
6.   Mandatory insurance cover for pollution incidents should be considered.
7.   Significant costs should be levied on Vessel owners/ operators in case of pollution acts.
8.   Time bound survey of the vessels and their classification ought to be insisted on for the purpose of ensuring prevention of pollution.
9.   Standard discharge connection ought to be specified in order to enable pipes of reception facilities to be connected with the Vessel's discharge pipeline for residues from machinery bilges and from sludge tanks. Both lines shall be fitted with a standard discharge connection as stipulated.
10.                Rules are silent about Ballast water management.
11.                No vessel shall be permitted to discharge into the inland waters ballast water without filtering the same.
12.                Ballast water which is not a clean ballast shall be discharged only in to reception facilities at Inland ports.
13.                Ballast water filtering equipment must be made available at the Inland port.  
14.                Kitchen and Human waste from the inland vessels should not be discharged directly into the inland waters.
15.                Every vessel above specified capacity shall carry on board a shipboard oil pollution emergency plan approved by the concerned authority.
16.                There ought to be a prohibition of carrying ballast water in any oil fuel tank.
17.                Protection against oil pollution in the event of collision or stranding of vessels ought to be provided.
18.                There has to be specific mention of the safety requirements for the cargo area of the vessel which carry hazardous chemicals and obnoxious substances.
19.                Construction of the said vessels which carry hazardous chemicals and obnoxious substances and the equipment’s require special mention.
20.                The capacity for the reception facilities at Inland Ports ought to be specified.
21.                Reception facilities within special areas like thickly populated areas would be specially mentioned and elaborated upon. 

Attention to the above aspects appears to be necessary to make the Rules complete and to equip it to meet its objective. 

Recent incident of leakage of Liquefied Ammonia Gas (LAG) from a barge transporting LAG to FACT at Champakkara requiring mass evacuation from the locality and sending panic across the city of Kochi has to be an eye opener. Insufficiency of legal norms ought not be a reason for repetition of such incidents. 
                                                                   ***

Sunday, April 26, 2015

My voyage with Indian Grace.



                      (V.M. Syam Kumar, Advocate, High Court of Kerala)
Every branch of law has its own share of land mark judgments. They are important mile stones in the evolution of law. Teachers teach them with emphasis and students study them earnestly. The study of law of tort is thus incomplete without reading Donogue V. Stevenson. Similarly, Constitutional law cannot be taught excluding Marbury v. Madison. Students of Contract law cannot ignore Carllil v. Carbolic Smoke Ball Co. and Company law demands deep acquaintance with Salomon v. A. Salomon & Co. They are cases which are to be chewed, eaten and digested at the law school. Maritime law too has its own fair share of land marks to offer. The House of Lords decision in MV Indian Grace is one among them.
Whatever cult status these legal land marks may have had at the law school, they are soon forgotten when we are out of the law school. The name of the case may still ring a bell, but the specifics may no longer be retained. Practice as a lawyer throws up other important legal norms of contemporary relevance to be remembered and the earlier land marks gradually fade from memory. They have only ‘academic relevance’ now. Further as most of these land marks are antiques from by gone times, they are seldom cited as authority of value since much water might have flown thereafter.  At the best, a passing reference may be made to them in a case of comparable facts or legal issues. That too only before a so called ‘academically inclined judge’, whose creed is fast vanishing.
Never in our wildest dreams do we expect to be part of the said land mark judgments or to get an opportunity to argue them out afresh. Who would expect to get to argue Donoghue V. Stevenson in the court room all over again as a lawyer for one of the parties to the dispute. We presume, and rightly so that the ginger beer consumed by Mrs. Donoghue would have long been digested with or without the snail and the smoke balls that Mrs Louisa Elizabeth Carlill had purchased to cure her aliment of flu would not survive beyond the date of the judgment in Carlill v. Carbolic Smoke Ball Co.
Similarly, while at law school I had like all my class mates expected that MV Indian Grace would have completed her voyage long back and all legal issues involving her cargo of shells and cartridges would have been laid to rest with the House of Lords decision. We presumed that the shells and cartridges carried on board MV Indian Grace for use in the Bofors howitzer guns acquired by Indian armed forces would all have been expended on our enemies at the borders.  Dr. A.M. Varkey our professor at Law school had made each of us read through the MV Indian Grace decision over and over again to impress upon the nuances of admiralty jurisdiction and the vexing issues concerning in rem and in personam actions involved therein. Like the rest, I expected MV Indian Grace to be relevant only for what is contained in the House of Lords decision. I was utterly wrong in presuming so.
By some strange twist of fate, after enrolling as a lawyer I had to be party to the  final legal voyage of MV Indian Grace and was called upon to defend her based on those very same issues and facts about her and her cargo which I had learned by heart at the law school.  
It all started one day with a dusty and shabby case bundle which I saw resting on my table upon my return from the court. I had just shifted my practice to Kochi and had joined the law firm Southern Law Chambers. I had had a prior stint as a junior to the legendary maritime lawyer S. Venkiteswaran in the Admiralty Court of Bombay. After my return I had just started attending the firm’s work and the bundle had been placed on my table at the instructions of the Senior Partner. It carried a note that I shall study the file and be prepared to argue the case as and when it comes up for hearing. It was clear that the green horn from Bombay with a Masters degree in Maritime law and bearing the tag of being the junior to the best maritime lawyer in India was being put to test. I carried the file home for study and slept over. Early morning next day, I proceeded to open it up and the contents revealed a suit filed by Government of India to recover some amounts from a company by the name M/s. India Steam Ship Company purportedly towards damages for the alleged short landing of some military equipment. The suit had been decreed and the defendant shipping company had come up in appeal before the High Court of Kerala challenging the judgment and decree of the Subordinate Judge, Cochin. The plaint disclosed the name of the vessel in which the cargo was carried and owned by the defendant M/s. India Steam Ship Company as MV Indian Grace.
The initial feeling that possessed me on reading the name MV Indian Grace was more that of a cheeky little surprise. What kind of coincidence could it be that there is another vessel bearing the same name as the legendary Indian Grace. I proceeded find out by reading through the dusty and worn out bunch of documents in the bundle. There was nothing in them connecting it to the House of Lords decision in the classic English case of MV Indian Grace. It spoke nothing about action in rem or action in personam and it related only to a simple suit for damages filed in the Subordinate judge’s court of Cochin.  So this could never possibly be the same ship MV Indian Grace about which every student of maritime law across the world is taught.
Later that day, I consulted my colleagues at the firm and asked them about the dirty bundle. All that they knew about it was that it is an old file that had been lying there since years and that the every time the matter came up for hearing, it was being adjourned by the Government Pleader. None of them knew about MV Indian Grace and the strange similarity that the subject vessel in the file bore to the land mark decision.  
As I had by then forgotten the specifics of the House of Lords judgment in MV Indian Grace, I decided to consult Christopher Hill the acclaimed author of “Maritime Law”. What I read left me startled. This is what he had to say on MV Indian Grace:
 “A case on the point is the Indian Grace (1998)1 Lloyd’s Rep. 1 HL. The plaintiff cargo owners brought proceedings against the owners in the Court of Cochin and then brought an action in rem in England. Subsequently judgment was delivered in Cochin. In due course owners submitted to the jurisdiction of the Admiralty Court. The plaintiffs threatened to arrest the vessel and security was provided. The issue was whether the England action in rem was ‘between the same parties or then privies’ within the meaning of sec. 34 as the action in which the plaintiffs obtained judgment in Cochin. When English action in rem was launched no judgment in personam in Cochin had yet been obtained; .....The English action was struck off. The case has been criticised by leading authors.” 
So the bundle in my hand was the appeal from the judgment of the Subordinate Judge’s court Cochin, which had been relied on by the House of Lords to strike off the English action. Issues in MV Indian Grace were thus still alive and kicking. The thrill that I experienced cannot be described in words. Here I had that once in a life time opportunity of pursuing further a case of classic genre. I set to task at once.
I rushed to the only place in the entire State which then had the Lloyd’s Law Reports, the most authoritative law reports on shipping cases from across the common law world, viz., the library of old High Court of Kerala at the Ram Mohan Palace. I knew from my daily visits, the exact place where the Lloyd’s Law Reports were stacked. No one came to that part of the library and the Lloyd’s Law Reports starting from 1918 to date remained neatly stacked in undisturbed slumber since ages. The book rack had by its side a window and one could stack books on its side, sit next to it and read. There was no electric fan over head but the gentle breeze that comes in once in a while through the window made reading there a pleasurable experience. For weeks, I spent all my afternoons perched on that window reading through the reports, ofcourse starting with the House Lords decision in Indian Grace.
The appeal to be argued before the High Court of Kerala though arising out of same facts was different from the legal issues considered by the House of Lords. Factual aspects as brought out during trial at Cochin assumed more relevance in the appeal. Comparing and confirming the factual observations in the judgment of the House Lords with the documents available in my bundle became by favourite enjoyment. The fire on board and the valiant efforts by the Master to put off the fire risking his life were all revealed from the documents. That the fire was not due to the actual fault or privity of the carrier and that the carrier was entitled to rely on the exception in the bill of lading was very evident.
The decision of the House Lords in MV Indian Grace had deeply affected the features of the in rem action till then exercised by English Courts. It was so important a land mark that, authors identified the different phases of legal growth by terming them as period before MV Indian Grace and after MV Indian Grace. Higher courts across the Common law world took note and relied on the decision in MV Indian Grace. Acknowledged experts on Maritime Law like A.M. Sheppard opined in their treatises that the decision was capable of drastically affecting some features of the action in rem followed in England till then. Since the House of Lords had relied on the Judgment of the Subordinate Judges Court Cochin in striking off the English action, the correctness of the said Judgment of the Sub court to be considered by the Kerala High Court in the appeal assumed relevance.
To my excitement the appeal was finally posted for consideration before a division Bench of the High Court of Kerala. After a fair share of adjournments from the part of the Government, the matter was taken up for final hearing and disposal. The senior presiding Judge being a former Civil Lawyer of standing and repute picked up the relevant facts deftly. The appeal was heard for days together. After noons were specifically set apart for exclusive hearing of the appeal. Carriers liability and intricacies of the term “actual fault and privity of the carrier” were considered by the Judges in detail. Scores of reports on the point from Lloyds Law Reports were placed before the bench by both sides. The response from the Bench was encouraging. It appeared that the Bench was convinced about the protections that the carrier and the vessel are entitled to under law. An important Judgment as a sequel to that of the House of Lords was in the immediate offing.
But before the Judgment could be rendered, to my dismay, the appeal was transferred to another Division Bench. We were back to square one. The presiding Judge here was a seasoned lawyer well aware of commercial legal practise. The Bench echoed the views of the earlier bench. Hearing went on for days. It would start off with a quip by the Judge, “Lets sail with Indian Grace.” Both sides argued in detail. Senior lawyer in the rank of Assistant Solicitor General of India appeared and argued for the Government. The Judge gave a peek of his mind by opining that the precedents and facts called for interference with the judgment of the sub-court. After days of lengthy hearing the new Division Bench proceeded to reserve the matter of dictation. We eagerly awaited a judgment capable of reporting across the maritime world from Kerala High Court, one that would be taken note of by English Lawyers and maritime experts. 
But MV Indian Grace was not destined to have a smooth legal journey. Before the date on which the judgment was to be delivered, the case was posted before the Bench by a process called ‘to be spoken to’. It was submitted on behalf of the Government of India that an amendment is proposed to be moved to hike the claim amount which at present was only for the short landed cargo. The Attorney General of India had in view of the failure of the English action, apparently suggested claiming a constructive total loss of the entire cargo and thus to enhance the claim amount from few lakhs to crores of Rupees. The rendering of judgment was thus sought to be adjourned to facilitate the filing of the amendment petition and the same was allowed. I had no reason to feel alarmed as the earlier two division Benches had been convinced of the case and was eager to render a detailed judgment touching upon all aspects of the case.
Within a week the appeal came up before another division bench.  The suggested amendment had not yet been carried and instead of seeking time for pursuing the same, the Government pressed for urgent hearing before the new bench. The hearing of MV Indian Grace thus commenced before the third division bench. Suffice to say that the Bench wound up the hearing within twenty five minutes and proceeded to deliver judgment dismissing the appeal.
Winning the appeal though was a prime objective was not the sole objective.  All through the hearing the single minded and earnest desire was that the judgment from the High Court of Kerala based on the detailed arguments placed by both sides touching on importance question of maritime law and carriage of goods by sea would lead to a judgment that will be a befitting sequel to the decision of the House of Lords in MV Indian Grace. The judgment that was finally rendered ran to less than four pages and carried a sentence to the effect that though numerous foreign decisions were placed before the Bench the same are not felt relevant to be discussed. Thus ended the long journey of MV Indian Grace.
I returned to office carrying the bundle which had now become huge with numerous copies of decisions from Lloyds reports.  I was visited by my senior partner with a comforting smile. He shared with me the wisest advice which I treasure all through the rest of my career. First one was “Never identify personally with the subject matter of your case however interesting it may be.” This was followed by a very practical advise which went like this. “When a case that had been heard at length by a Bench and is expected to be decided in your favour is sought to be adjourned by the opposite side, pray to the court that the same may be noted on file as PART HEARD.” This would have ensured that the matter would again come up only before the same Bench!
I realised that my theoretical knowledge of maritime law and my rummaging through volumes of Lloyds Law reports are no substitute to practical lawyering skills which can be acquired only through years of patient dedicated practise.
 Let me leave you with a sequel to this story. Around ten years after the above experience, at a private function I ran into the same Judge who had heard the MV Indian Grace appeal on its second round. He had since retired and to my surprise very well remembered the quip of sailing with Indian Grace. He told me that he had already dictated a detailed Judgment allowing the appeal filed by MV Indian Grace and same was not typed out and issued since the matter got adjourned.
                                                           ***