V.M. Salgaocar and Bro. Ltd. v. M.V. Priyamvada and V.S. Dempo 1&Co. Ltd.

1 Whether the Plaintiffs prove that the positions of the 2 vessels M.V. Sanjeevani AND PRIYAMVADA at the times material to the suit were as shown in Exhibit A to the Plaint? In the affirmative

2 Whether the defendants prove that the respective positions of the 2 vessels were at the times material to the suit as shown in the sketch Exhibit 1 to their Written Statement? In the negative

3 Whether the Plaintiffs prove that the MV Sanjeevani was refloated on 17/5/1994 after she had grounded in June/July, 1993 and was afloat at her usual anchorage position that she was on 5/6/1994 as alleged?

4 Whether the Plaintiffs prove: a) That the condition of the MV Sanjeevani on 5/6/1994 such as not to have been a danger to vessels in her vicinity in that – (1) her engines were adequately and effectively operative: (2) her main engines were on stand by at the material times as stated in the plaint: (3) She was not a dead ship at the material times: (4) her VHF and her communication system was in effectively working order and condition and she could be contactable in any state of emergency. b) that there was no failure on the part of the MV Sanjeevani in alerting ships in her vicinity as to her true condition and her inadequacies/deficiencies. c) that there was no failure on the part of the MV Sanjeevani in taking appropriate or any preventive or evasive steps to aver the contacts with the Priyamvada. d) that the MV Sanjeevani did take all or any of the steps to avoid the contacts or any precautionary measures, as stated in their plant. e) that the MV Sanjeevani was manned with staff as mentioned in paragraph 3(i) of the plaint and/or that she was adequately manned as per the prescribed laws, rules and applicable laws. Not to the extent of controlling the dragging vessel Inconsequential as engines were never used subject to the condition of MV Sanjeevani which bears upon the Plaintiff’s claim. In the negative. Partly in the affirmative f) that there was otherwise no failure or negligence on the part of the MV Sanjeevani and/or the Plaintiffs in relation to the 2 accidents and subsequent thereto.

5 Whether the Plaintiffs prove that the Defendants failed or were negligent in: a) not providing Master or Chief Officer on board as required by the relevant Port regulations as alleged. b) not taking timely action by starting engines, weighing in achor and/or keeping safe distance, so as to prevent uncontrolled drifting of the Priyamvada as alleged? c) failing to take proper evasive steps to avoid the contracts. d) adopting wrong measures which contributed to the accidents, (and if) what wrong measures. e) failing to comply with the international regulations relating to collisions, as alleged and if so which regulation or regulations? f) causing the accidents, damage, dislodging of anchor, fouling of rudder, resultant drift of the MV Sanjeevani and her ultimate grounding as alleged.

6 Whether the Defendants prove that the accidents which occurred on 5/6/1994 was caused due to unexpected cyclonic storm striking the Port and harbour of Mormugoa at 17.00 hours on 5/6/1994 and due to force majeure.

7 Whether the Plaintiffs prove that if so, what damage was caused to the MV Sanjeevani as a result of the 2 affirmative, to the extent of accidents? compensation of Rs.[6] Crores with 50% contributory neglience.

9 Whether the Plaintiffs prove the efforts which they allege were taken by them to refloat or salvage the MV Sanjeevani as stated in their plaint, the costs and expenses therefor?

10 In the event of the Defendants being held liable to blame for the 2 accidents on 5/6/1994 or any of them, and for the resultant damage arising there from, whether the Defendants are entitled to limit their liability in terms of Section 252 B of the Merchant Shipping Act?

11 Whether the 2nd Defendant prove that the occurrences of collision of the vessel m.v. “PRIYAMVADA” with m.v. “MV Sanjeevani” on 5.6.1994 giving rise to the claim against them did not result from their actual fault and privity in relation to the limitation of liability?

12 Do the Defendants prove that on the date of the accident, the m.v. Priyamvada was manned by a fully certified crew compliment described in paragraph 1(b) of the Written Statement?

13 Do the Defendants prove that weather conditions mentioned in paragraph 1(e) of the Written Statement? for the purpose of proof of Act of God 14 Do the Defendants prove that various other vessels dragged anchor and that 5 vessels were affected by the unprecedented cyclonic weather as mentioned in para: (e) of the Written Statement? for the purpose of proof of Act of God 15 Do the Defendants prove that they took the steps mentioned in paragraphs 1(g) and (h)?

16 Do the Defendants prove that the VHF on the MV Sanjeevani was not working as alleged in para 1(h) of the Written Statement.

17 Do the Defendants prove that they took all possible actions and precautions as stated in para 1(i) (j) and (k) of the Written Statement.

18 Do the Defendants prove the allegations mentioned in para 1(m) (n), (o) and (p) of the Written Statement? In the negative, save and except the condition of MV Sanjeevani

19 Do the Defendants prove that the Plaintiffs are responsible for the resultant collusion as set out in para 1(q) of the Written Statement? EVIDENCE:

6. In order to substantiate their claim, the plaintiffs have examined four witnesses, namely; Mr. Anil V. Salgoacar (PW[1]), who tendered his affidavit in lieu of examination, but passed away before he could be cross-examined, Mr. Mukesh Saglani (PW[2]), an officer of “SMIL”, Mr. Satish Seth (PW[3]), the former Captain of M.V.Sanjeevani, and Mr. Anthony Brian D’Souza (PW[4]), the electrical officer, who was on board the vessel M.V. Sanjeevani at the time of the alleged collision.

7. In the rebuttal, the defendants have examined five witnesses, namely; Narayan M. Prabhu Shelkar (DW[1]), Mr. Waman Mangesh Gaitonde (DW[2]), Mr. Vijay Hiralal Kiran (DW[3]), the second officer, who was at the helm of the vessel MV Priyamvada (D[1]) at the time of the alleged collision, Dr. Jalal Basheer (DW[4]), the surveyor, and Captain Bruno D’Souza (DW[5]). The parties have also tendered a number of documents in order to substantiate their rival claims.

8. At the conclusion of the trial, I have heard Mr. Amrut Vernekar, the learned Counsel for the plaintiff and Mr. Sunip Sen, the learned Senior Advocate for the defendant, at length, in the presence of Captain Sudhir Naphade and Captain V. K. Gupta, the Assessors appointed by the Court. The Court has the benefit of the opinion of the Assessors.

9. To begin with, it is necessary to note that the assessors have apprised the Court that the evidence led by the parties does not fully equip the Court to determine the precise nature of the collision between the vessels and the liability for the same. Captain Sudhir Naphade highlighted the fact that, under the Merchant Shipping Act, 1958, the Port Authority is empowered to conduct inquiries into the navigation incident involving the vessels. The Port Authority has not discharged its functions fully as the Deputy Conservator of Ports has not prepared the Inquiry Report. Thus, the Court does not have the benefit of statutory technical evidence, apportioning the causes of navigation incident.

10. Capt. V.J.Gupta has highlighted the insufficiency of the evidence by apprising the Court that out of nine witnesses examined by the parties, only two witnesses, namely, Mr. Anthony Brian D’Souza (PW[4]), the Electrical Officer of MV Sanjeevani, and Mr. Vijay Hiralal Kiran (DW[3]), the Second Officer of Priyamvada, were on board their respective ships at the material time, and had first hand knowledge of the navigation incident. Even their evidence, in the opinion of Captain V.J.Gupta, does not throw light on all the technical and navigational aspects which bear upon the determination of the liability. Thirdly, the absence of log books / written record navigation chart in use by the vessels was also highlighted. In addition, the absence of metrological data and contemporaneous photographs showing the contact damage to the vessels hulls further deprived the Court of the relevant material to base its findings.

11. The Court proposes to evaluate the evidence on record keeping in view the aforesaid aspects highlighted by the assessors and make an endeavour to decide the issues that arise for determination.

12. To start with, the Court finds it appropriate to note few uncontroverted facts. Firstly, there is not much controversy over the fact that the Port had lowered the storm signal on the day of the incident. Secondly, the Master and First Officer of Priyamvada were ashore at the material time. Thirdly, Mr. Vijay Hiralal Kiran (DW[3]) was the Second Mate and took on the responsibility to navigate Priyamvada. Fourthly, the engines of MV Sanjeevani were never used, though there is serious controversy as to whether the engines of MV Sanjeevani were adequately and effectively operative. Lastly, the fact that MV Sanjeevani could not be salvaged as vessel, is rather indubitable. Broad submissions:

13. Before evaluating the evidence qua each of the issues, it may be apposite to note in brief the broad submissions canvassed on behalf of the parties.

14. Mr. Vernekar would urge that the challenge to the locus of the plaintiff to pursue the claim for damages for the loss of the vessel MV Sanjeevani, does not deserve to be entertained as the defendant had opposed the prayer of impleadment of Salgaocar Mining Industries Pvt. Ltd as a plaintiff in place and stead of the plaintiff, contending that the Plaintiff had, at best, a mere right to sue, which cannot be transferred. Thereupon, by an order dated 8th July, 2002 in Chamber Summons No.714/2002, the said chamber summons came to be dismissed. The defendant, thus, cannot now be permitted to take a summersault and urge that the plaintiff having divested its interest in MV MV Sanjeevani, cannot maintain an action for damages.

15. Mr. Vernekar would strenuously urge that the evidence on record firmly establishes that MV Sanjeevani suffered a total loss on account of the collision for which MV Priyamvada (D[1]) was solely responsible. The sequence of events clearly indicates that MV Priyamvada (D[1]) dragged MV MV Sanjeevani by dislodging its anchor, damaged its stern gear and eventually MV Sanjeevani was grounded in shallow waters. The collision occurred as MV Priyamvada (D[1]) was not manned as per the Safe Manning Rules and the command of MV Priyamvada (D[1]) was left with Mr. Vijay Kiran (DW[3]), a novice and inexperienced Second Officer, who was neither authorized to take such command nor capable of handling the vessel in such a critical situation.

16. Mr. Vernekar laid particular emphasis on the fact that the Master and First Mate of MV Priyamvada (D[1]) were not on board the vessel when the squall struck. There was no other navigating officer on board MV Priyamvada (D[1]). In the absence of a proper complement of officers on board MV Priyamvada (D[1]), in accordance with the Safe Manning Rules, the vessel was rendered unseaworthy. In the exigency of the situation Mr. Vijay Kiran (DW[3]) could not take requisite action to aver the collision.

17. In contrast, Mr. Vernekar would urge, MV Sanjeevani had the complement in excess of the safe manning requirements. All the requisite steps to avert the collision were taken by the Master of the vessel. Referring to the actions taken to avert the collision, Mr. Vernekar made an endeavour to draw home the point that in the given situation MV Sanjeevani could not have used its engine. Therefore, the thrust of the defence that MV Sanjeevani was a dead vessel and a navigational hazard does not deserve countenance.

18. A painstaking effort was made by Mr. Vernekar to draw home the point that the timeline of the occurrence clearly demonstrates that the defendants have made an effort to improve their version to suit their convenience. The various explanations sought to be offered on behalf of the Defendants with regard to the occurrence, proved self contradictory, and, thus, rendered the sequence of events, as propounded by plaintiff, preponderantly probable.

19. On the aspect of the quantum of damages, Mr. Vernekar would urge, given the circumstances of the case and especially the grounding of MV Sanjeevani in the shallow waters with extensive damage, rendering it beyond salvage, the replacement value of the vessel would be the correct measure of damages. In the alternative, the insured value of the vessel would be the measure of damages. Mr. Vernekar would urge the fact that the plaintiff could not demonstrate with precision the actual loss suffered by the plaintiff does not detract materially from the plaintiffs’ claim as, in any event, even in the absence of proof of actual loss, the plaintiff is entitled to a reasonable compensation. In the facts and circumstances of the case, the compensation claimed by the plaintiff cannot be said to be unreasonable, excessive and exorbitant, submitted Mr. Vernekar.

20. In opposition to this, Mr. Sen would submit that the suit for damages by the plaintiff is wholly misconceived as it is the case of the plaintiff that it had not suffered any loss and, in fact, “SMIL” had suffered the loss. At best, in accordance with the consent terms in the suit to which the plaintiff was a party, the plaintiff was to transfer MV Sanjeevani to “SMIL” at written down value. No effort was made on behalf of the plaintiff to establish what was the written down value. Therefore, the suit for damages on the premise that injury was caused to the plaintiff is clearly untenable.

21. Mr. Sen would submit that the fact that the Master and First Mate of MV Priyamvada (D[1]) were not on board at the time of the alleged collision cannot, by itself, be the foundation of the liability. If the plaintiff failed to establish the causative relationship between their absence and the alleged collision, attributable to the negligence on the part of the officers, who manned MV Priyamvada (D[1]), the mere absence of Master and the chief officer cannot be made the foundation of the claim for damages.

22. Mr. Sen urged with a degree of vehemence that the evidence on record would indicate that MV Sanjeevani was a dead vessel. It was designated as a navigational hazard. Referring to the historical facts regarding the prior grounding, brief refloating and again laying up of MV Sanjeevani, Mr. Sen would urge that the said vessel was not at all seaworthy. The inability to use its engine by MV Sanjeevani throughout the period the squall lasted, according to Mr. Sen, inexorably indicates that the MV Sanjeevani was a dead vessel.

23. A strenuous effort was made by Mr. Sen to draw home the point that there was no collision between MV Sanjeevani and MV Priyamvada (D[1]) in the fashion sought to be projected on behalf of the plaintiff. Constructing the sequence of events, Mr. Sen would urge the theory of MV Priyamvada (D[1]) having run over and fouled the anchor of MV Sanjeevani was not borne out by the material on record. In fact, the case that MV Priyamvada (D[1]) had fouled and dislodged the anchor of MV Sanjeevani was not at all pleaded by the plaintiff.

24. Mr. Sen would urge the principle of vis major governs the case at hand. Incontrovertibly the storm signal was lowered by the Port Authority. Nobody expected the whether to take such ferocious shape, in a short period of time. Many a vessels had dislodged their anchors. The situation was such that nobody could have foreseen the event that unfolded or resisted those events by any amount of care and skill.

25. On the aspect of damages, Mr. Sen reiterated that, the loss to the plaintiff, at best, was the written down value of the vessel, which was not brought on the record of the Court. Taking the Court through the correspondence and the surveyor’s report, Mr. Sen would urge MV Sanjeevani was incapable of refloating. Thus, the plaintiff cannot claim replacement value. Insured value cannot be the measure of damages. In these circumstances, the plaintiff is not entitled to any compensation.

26. The controversy between the parties essentially revolves around the question as to whether there was collision between MV Sanjeevani and MV Priyamvada and, if yes, what was the nature of the collision and, who was at fault, or for that matter, who could have averted the collision. Objection as to admissibility of evidence:

27. Before proceeding to appreciate the evidence, the issue of admissibility of the evidence of Mr. Anil V. Salgoacar (PW[1]), who passed away before he could be cross-examined and the submissions made by late Capt. J D’Silva before the Conservator of Ports in the enquiry under Section 359 of the Merchant Shipping Act 1958 and otherwise in the wake of the navigation incident deserve to be appreciated. By an order dated 14th August 2002, this Court directed the parties shall file their Affidavits in lieu of examination-inchief before the Commissioner. Pursuant to the said order, Mr. Anil V. Salgoacar (PW[1]) filed the Affidavit in lieu of examination-in-chief before the Commissioner. The documents were marked as Exhibits P/1 to P/93. The Defendant raised objections to the acceptance of the Affidavit and the documents. Subject to those objections, the Affidavit was accepted and the documents were marked.

28. Mr. Sen, as the Commissioner records, declined to cross-examine (Anil (P.W.1) as the Defendant had filed a Notice of Motion for the dismissal of the Suit. The said Notice of Motion came to be dismissed by an Order dated 23rd January 2004. As Mr. Anil V. Salgoacar (PW[1]) passed away, he could not cross-examined.

29. Mr. Vernekar would urge that the Defendant having declined to crossexamine Mr. Anil V. Salgoacar (PW-1) and the documents having been marked in evidence, the evidence of Mr. Anil V. Salgoacar (PW-1) deserves to be accepted. Reliance was placed on the judgment of the Supreme Court in the case of Sarwan Singh Vs State of Punjab[1], wherein the Supreme Court held that, it is rule of essential justice that whenever the opponent has 1 AIR 2002 SCC 3652. declined to avail himself of the opportunity to put his case in crossexamination it must follow that the evidence tendered on that issue ought to be accepted. The observations of the Calcutta High Court in the case of AEG Carapier Vs AY Derderian[2], on which also reliance was placed by Mr. Vernekar, were approved by the Supreme Court.

30. There can be no quarrel with the aforesaid proposition. However, it may not govern the facts of the case at hand with equal force. It could be urged that the Defendant did not cross-examine, Mr. Anil V. Salgoacar (PW-1), on that day, for a justifiable reason as they had filed a Notice of Motion.

31. The decision of a learned Single Judge of this Court in the case of Banganga Cooperative Housing Society Ltd & Ors Vs Vasanti Gajanan Nerukar & Ors,[3] however, appears to govern the facts of the case at hand. The situation which may arise where a witness dies after his examination-inchief is recorded and he could be cross-examined, was considered by the learned Single Judge as under:

32. “First, where the witness is no longer physically available, i.e., he has expired between the time of filing of his Evidence Affidavit and the time for crossexamination.[8] The law in this regard is, I believe, wellsettled, and it is simply this: that where the testimony is incomplete by reason of death or incapacity of the witness 2 AIR 1961 Calcutta 359. 3 2015 (5) Bom CR 813. before cross-examination, the evidence, admissible when given, does not cease to be so merely on account of that intervening factual circumstance. What probative or evidentiary value is to be attached to this evidence is another matter, and turns on the circumstances of each case. A court may seek independent corroboration of that evidence. It may accept it, albeit cautiously, and that is no infirmity per se in the final decision. This was the view of Mr. Justice H.R. Khanna as a learned single Judge of the Delhi High Court in Krishnan Dayal Vs Chandu Ram (1969 I.L.R. 1090) and I am in most respectful agreement with that view.”

33. I am persuaded to respectfully follow and adopt the aforesaid approach, in the matter of evidence of Mr. Anil V. Salgoacar (PW-1).

34. It would be contextually relevant to note that by an order dated 6th December 2023, this Court passed an order as regards the marking of the documents, after hearing the parties on the aspect of admissibility of the documents marked by the Court Commissioner.

35. As regards the reports submitted by late Captain J. D’Silva, and the statements made before the Deputy Conservator of Ports, in the enquiry under Section 359 of the Merchant Shipping Act, 1958, reliance placed by Mr. Vernekar on the provisions contained in Section 33 of the Indian Evidence Act, does not appear to be correct.

36. For the applicability of Section 33 of the Indian Evidence Act, all the three conditions must be satisfied. In the case of Sashi Jena And Ors Vs Khadal Swain & Anr,[4] the Supreme Court after extracting the provisions contained in Section 33 of the Indian Evidence Act, enunciated the prerequisite for its applicability as under:

37. “8. From a bare perusal of the aforesaid provision, it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three prerequisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (iii) that the questions in issue in both the proceedings were substantially the same, and in the absence of any of the three pre-requisites aforestated, Section 33 of the Act would not be attracted. This Court had occasion to consider this question in the case of V.M. Mathew Vs V.S.Sharma & Ors (1995) 6 SCC 122, in which it was laid down that in view of the second proviso, evidence of a witness in a previous proceeding would be admissible under Section 33 of the Act only if the adverse party in the first proceeding had the right and opportunity to cross examine the witness.” (emphasis supplied)

38. Nonetheless, reports submitted and statements ubmissions made by late Captain J D’Silva, cannot be said to bereft of any evidentiary value. Those statements would be admissible under Section 32 (2) of the Indian Evidence Act, as the said statements were made by late Captial J D’Silva in the ordinarily course of business and in-discharge of his professional duty as the captain of MVSanjeevani, in the wake of the navigation incident. Those statements made in proximity to the incident also have an element of spontaneity and veracity.

ISSUE NOS. 1 AND 2:

39. These issues primarily deal with the position of the vessels prior to the alleged collision. The significance of these issues lies in the the relevance of prelude to the occurrence, to the extent it bears upon the probabilities of the case, and also in the correct appreciation of the evidence adduced by the parties in regard to the collision between the vessels. The Plaintiff asserted that the original anchored position of both the vessels on 5th June 1994, before the alleged collision was as shown in Exhibit “A” to the Plaint, an enlarged copy of which came to be produced at Exhibit “P1/80”. The Plaintiff asserts that MV Sanjeevani was at 264 degree * 1.28 Nautical Miles with respect to breakwater Light house whereas the Defendant vessel was about

0.18 Nautical Miles ahead of MV Sanjeevani towards the west of the breakwater.

40. On the contrary, the Defendants contend that MV Sanjeevani and MV Priyamvada, at the material times, were in the positions as shown in the sketch (Exhibit “I”) to the Written Statement.

41. Mr. Sen would urge that, the chart Exhibit “A” appended to the Plaint was not proved in evidence on behalf of the Plaintiff. The enlarged chart Exhibit “P/80” which was sought to be tendered in evidence of PW-1 is materially distinct from the chart Exhibit “A” appended to the Plaint. Even otherwise, since PW-1 could not be offered for cross-examination, and had no personal knowledge of the incident, the said enlarged chart (Exhibit “P/80”) has also also not been proved in evidence.

42. It is necessary to note that the averments in the Plaint, as regards the relative position of the vessels, as on the day of occurrence, went uncontroverted. In the Written Statement filed on behalf of the Defendants, they chose not to deal with, much less specifically deny, the assertion of the Plaintiff that the position of the respective vessels was as pleaded in paragraph 3(c) of the plaint, with reference to the breakwater lighthouse

43. Apart from non denial, in the pleadings, the contemporaneous documents pressed into service by the Plaintiff, substantiate the claim of the Plaintiff with regard to the position of two vessels. In the communication dated 14th June 1994, (PW-1/81), addressed on behalf of the Plaintiff in response to the letter dated 8th June 1994 of the Defendant No.1, the Plaintiff has categorically stated the exact position of the two vessels relative to breakwater lighthouse, while lodging a claim for damage and loss caused by MV Priyamvada to MV Sanjeevani. It does not appear that in the reply to the said communication, vide letter dated 24th June 1994 (Exhibit PW-1/24”), the Defendants controverted the said claim of the Plaintiff in regard to the relative position of vessels. Even in the surveyor’s Report dated 30th June 1994, (Exhibit “D-5/39”) (Tata Tea Limited ), the surveyor records that they were informed by the Master of the MV Priyamvad that she had anchored in the Inner Anchorage in position, Latitude 15° 24’ 88 N Longitude 43c 48’ 63E, bearing 2780 x 1.06 miles from breakwater of Mormugao Harbour. Moreover, the claim of Mukesh Saglani (PW[2]), as regards the relative position of the vessels went unimpeached.

44. In the backdrop of the aforesaid material, especially the non-denial of the claim of the Plaintiff, as regards the relative position of the vessels prior to the occurrence, the objection on behalf of the Defendants that the Plaintiff failed to establish the relative position of the vessels prior to the occurrence, does not hold any water.

45. Conversely, the Defendants made no endeavour to establish that MV Priyamvada and MV Sanjeevani, at the material times were at the position as shown in the sketch (Exhibit “I”). Neither an effort was made to establish the said fact by leading evidence or by eliciting admissions in the crossexamination of the Plaintiff’s witness.

46. Resultantly, I am inclined to answer Issue No.1 in the affirmative and Issue No.2 in the negative.

47. This issue also carries significance from the point of view of the condition of MV Sanjeevani. Incontrovertibly, MV Sanjeevani was grounded since June/July 1993 and the Port Authority was insisting on the Plaintiff to take measures to refloat MV Sanjeevani. The Plaintiffs claimed that MV Sanjeevani was refloated on 17th May 1994. To substantiate this claim, the Plaintiff relied upon the communication addressed on behalf of the Plaintiff to the Deputy Conservator, MPT, on 25th May 1994. In the said letter (Exhibit “PW-1/52”), SMIL, informed the Deputy Conservator, MPT that MV Sanjeevani was successfully floated on 17th May 1994 at about 13.30 hours by de-blasting water and since then MV Sanjeevani was freely floating at the same location duly held by an anchor with adequate flotation margin.

48. At this stage, it may not be necessary to delve into the submissions as regards the condition of the vessel, evincible from the said communication, banked upon by the Defendants. The said aspect can be considered while determining the issue revolving around the condition of the vessel of MV Sanjeevani. The communication dated 25th May 1994 (Exhibit “PW-1/52”) constitutes a contemporaneous record which lends support to the claim of the Plaintiff that MV Sanjeevani was refloated.

49. It would be necessary to note that the claim of the Plaintiff in regard to the refloating of MV Sanjeevani was not specifically controverted on behalf of the Defendants. In contrast, in the Written Statement, it was contended that MV Sanjeevani had been refloated by salvors engaged by the Plaintiff on or before 17th May 1994. The Defendants made an endeavour to lay emphasis on the condition of, and the circumstances in which, MV Sanjeevani was refloated to bolster up its defence that MV Sanjeevani was a dead vessel. The factum of refloating of MV Sanjeevani on 17th May 1994 was, however, not seriously disputed.

50. The further claim of the Plaintiff that MV Sanjeevani was refloated at the location which was her usual anchorage position was, however, stoutly contested on behalf of the Defendants. An effort was made on behalf of the Defendants to draw home the point that the position where MV Sanjeevani was floated, was not an anchorage allotted to MV Sanjeevani. The mere fact that MV Sanjeevani was grounded at the same location does not imply that the said location was an anchorage position allotted by the Port.

51. Whether the location where MV Sanjeevani was refloated was the usual place of anchorage of MV Sanjeevani does not carry much significance. The Plaintiff’s claim that the said location was MV Sanjeevani’s usual anchorage position stems from its intent to establish that the anchor of MV Sanjeevani had been embedded in seabed and thus MV Sanjeevani firmly and securely held the same position. This claim of the Plaintiff warrants consideration while determining the core questions in controversy. Subject to the aforesaid consideration, I am inclined to answer Issue No.3 in the affirmative.

52. In view of the uncontroverted position that the engines of MV Sanjeevani were never used to control and navigate MV Sanjeevani at the material times and an effort was made on behalf of the Plaintiff to offer explanation as to why, in the given circumstances, engines could not have been used (purportedly to avoid greater damage), the consideration as regards the functionality of engines of MV Sanjeevani becomes confined to the seaworthy condition of MV Sanjeevani and the alleged inability of MV Sanjeevani to avert collision.

53. Reliance was placed by the Plaintiff on the communication dated 25 May 1994 (Exh PW-1/52) to the Deputy Conservator of MPT to show that MV Sanjeevani was refloated and was in a position to move to the vacant berth by its own power and with the assistance of tugs. In addition, Captain Satish Seth (PW[3]) and Mr. Anthony Brian D’Souza (PW[4]) deposed that when surveyor of the Marine Mercantile Department had inspected the Vessel, the engines of MV Sanjeevani were in full working condition.

54. Banking upon the letter dated 3 June 1994 (Exh.D-1/3) addressed by the Deputy Conservator of MPT to SMIL, wherein it was recorded that when the representative of Marine Department inspected MV Sanjeevani on 3rd June 1993, it was found that the Vessel’s VHF was not in working condition and could not contact or be contacted by the signal station, it was submitted that MV Sanjeevani was otherwise operational as no remarks as to the engines being not in operation was made in the said report.

55. Mr. Sen strenuously submitted that there is a world of difference between the term engines were “fully operational” and “adequately and effectively operative”. The real test would be whether the engines of MV Sanjeevani were in such condition as to use those engines to control and navigate the vessel. Taking the Court through the manner in which Satish Seth (PW[3]) and Mr. Anthony Brian D’Souza (PW[4]) fared in the crossexamination, Mr. Sen urged that the witnesses have not stated the truth. Mr. Satish Seth (PW[3]), though claimed that, he was present on the vessel when the first engine trial was done after the refloating, yet, he blamed his memory to state whether the engine movement was entered in any log. Likewise, to a pointed question as to where the vessel logs were kept after the navigation incident, Mr. Satish Seth (PW[3]) feigned ignorance. Mr. Anthony Brian D’Souza (PW[4]) boldly asserted that the engine control were entered into log by either the Chief Engineer or any other person in the engine room. However, the logs were not placed on record.

56. It would be contextually relevant to note that in the preliminary enquiry before the Deputy Conservator of Ports, Mr. Bhagwat Kumar, Chief Engineer of MV Sanjeevani replied that after the vessel was refloated, the main engines were tried out once for short duration only. Upon being called upon to produce record to the said effect, the Chief Engineer replied that though the engine was turned on, on one occasion after refloating the vessel, the said fact was not recorded in the official engine log.

57. It is also imperative to note that the Master of the Vessel informed the Deputy Conservator of the Port in the said inquiry that he was not sure whether the fuel on the vessel was sufficient to turn on the engines for at least an hour.

58. If all the aforesaid factors are considered, in conjunction with the indubitable fact that the engines of MV Sanjeevani were not used at the material times, either to avert the collision or to take MV Sanjeevani to safe position after the collision till it was grounded, an inference become inescapable that the engines of MV Sanjeevani were not adequately and effectively operative to the extent of controlling the dragging vessel.

59. I am, therefore, inclined to answer Issue No.4(a)(1) accordingly.

60. It is the case of the Plaintiff that the Captain of MV Sanjeevani, after noticing squally weather approaching at about 17.00 hrs., put on the radar and gave orders to keep the engine on standby. The said claim was sought to be substantiated by relying upon the testimony of Mr. Anthony Brian D’Souza (PW[4]), who deposed that the Captain had given such orders to get the engine standby.

61. In the light of the fact that, eventually the engines of MV Saneevani were never used, the controversy as regards the engines of MV Sanjeevani having been put on standby, pales in significance. The engines were to be put on standby for the ultimate use of the engines to control and navigate MV Sanjeevani. Thus, the determination of this issue would bear upon the general condition of MV Sanjeevani and whether sound navigational practices were resorted to by the Captain of MV Sanjeevani in the wake of the storm situation. Even if the case of the Plaintiff is construed rather generously discounting the element of opportunity to Mr. Anthony Brian D’Souza (PW[4]), who deposed about the time at which the engines came on standby, yet the aspect as to whether the engines were on standby before the first impact between MV Sanjeevani and Priyamvada, appears debatable.

62. The statement of Captain of MV Sanjeevani in the preliminary inquiry, indicates that at about 17.00 hrs., he gave orders to keep the engines standby. During the period 17.20 hrs. to 17.25 hrs., MV Priyamvada came bodily alongside on port side of MV Sanjeevani and touched MV Sanjeevani along the entire length. At about 17.25 hrs., MV Priyamvada moved out and continued picking up anchor at the same time, coming close to port bow of MV Sanjeevani and running over MV Sanjeevani’s port anchor and thereby loosening of the hold of MV Sanjeevani’s anchor. It thus appears that before the first impact, the engines of MV Sanjeevani were not on standby. As noted above, this fact, in a sense, becomes inconsequential as the engines of MV Sanjeevani were eventually never used.

63. I am, therefore, inclined to answer Issue No.4(a)(2) accordingly.

64. Mr. Sen urged with a degree of vehemence that MV Sanjeevani was a dead ship. It was grounded for over 10 months at the same position. Its engine was not operational. It could not move by its own power. In the plaint itself there was a clear and categorical admission that the MV Sanjeevani was in a disabled state and its disability was known to all. Mr. Sen invited the attention of the Court to the provisions contained in “Safety of Life at Sea Convention” incorporated in the Merchant Shipping Act, 1958 to bolster up the submission that in view of indisputable expiry of all important safety certificates, MV Sanjeevani was but a dead ship.

65. In opposition to this, Mr. Vernekar would urge MV Sanjeevani had more than requisite complement of crew and personnel on board. It was manned according the Rules and circulars of MPT. At the material time MV Sanjeevani’s engine was operational and on stand by. Thus, by no stretch of imagination, could it be urged that MV Sanjeevani was a dead ship.

66. In paragraph 3(a) of the plaint it was averred that MV Sanjeevani was a permanent and securely anchored fixture at the same location for about a year. And her location, position and temporary disability was known to all concerned. Whether the disability, referred to above, in the context of history of grounding and condition of MV Sanjeevani was of such nature as to render MV Sanjeevani a vessel which could not move on its own, warrants consideration.

67. The fact that MV Sanjeevani was manned in accordance with Safe Manning Rules cannot be a complete answer to the aforesaid question. That would, at best, be one of the facets of seaworthiness of MV Sanjeevani. The attendant circumstances preceding the re-floating of MV Sanjeevani also become relevant. By a communication dated 13th July, 1993 (PW-1/9), Deputy Conservator, MPT, had put SMIL to notice that due to development of cracks and grounding of MV Sanjeevani, she was bound to create navigational hazard and endanger other ships anchored in the vicinity. In the communication dated 19th August, 1993 (P-1/11) it was reiterated that MV Sanjeevani was posing navigational hazard and endangered the safety of the other vessels anchored in the vicinity.

68. The communication dated 25th May, 1994 addressed to the Deputy Conservator, MPT, by SMIL also throws light on the condition of MV Sanjeevani. While informing that MV Sanjeevani has been successfully refloated, MPT was further apprised that some leakages were noticed and temporary repairs were carried out and were being attended to by constantly pumping out leakage water. The Port Trust was also requested to provide assistance by allocating a vacant berth for bringing the vessel alongside by its own power and with the assistance of the tugs for carrying out further repair work to stop leakages arising from the temporary repairs done for floating the vessel.

69. Section 3(37) of the Merchant Shipping Act, 1958 defines, “"Safety Convention" as the International Convention for the Safety of Life at Sea signed in London on 1st November, 1974 as amended from time to time. Under Section 2(38), “safety convention certificate” means, inter alia; “…...

(v) a cargo ship safety equipment certificate,

(vi) a qualified cargo ship safety equipment certificate,

(vii) a cargo ship safety radio telegraphy certificate,

(viii) a cargo ship safety radio telephony certificate. ……..”

70. It would be contextually relevant to note that Mr. Mukesh Saglani (PW[2]) conceded in the cross-examination that except certificate of Indian Registry and Certificate of Classification, no other certificate was valid as of 5th June,

1994. This admission gives heft to the submission of Mr. Sen that as of the date of the collision MV Sanjeevani has not had valid important Safety Convention Certificates.

71. These factors, if considered in juxtaposition with the grounding of the vessel for over 10 months before it was refloated few weeks prior to the navigation incident, in which MV Sanjeevani’s engine was never used, render the claim of the plaintiff that MV Sanjeevani was fully operational rather difficult to accede to. It is true that a definitive finding that MV Sanjeevani was a dead ship may not be justifiably recorded. However, the condition in which MV Sanjeevani was found at the material times bears upon the determination of the core issues. Thus, subject to the condition of MV Sanjeevani, Issue NO. 4(a)(3) is answered in the affirmative. Issue Nos. 4(a)(4) and 16:

72. As noted above, on 3rd June, 1994 MPT had informed SMIL that the general inspection revealed that ship’s VHF was not in working condition and could not contact or be contacted by signal station. The said condition of VHF was in contravention of the harbour notice dated 2nd June, 1994 (D1/3). SMIL was advised to immediately keep a working VHF set with international frequencies on board.

73. Mr. Vernekar would submit that the aforesaid letter was replied on 4th June, 1994 apprising the port, inter alia, that a hired VHF set was on board the vessel.

74. The fact there was problem in VHF of MV Sanjeevani was acknowledged by the Captain in his statement in the preliminary inquiry by MPT. Thus, unable to get response from MV Priyamvada and the Port on VHF the Captain claimed to have called Gosalia Prospect, another vessel. It transpired that MV Sanjeevani was not receiving the replies on VHF. Anthony D’Souza (PW[4]) also conceded in the cross-examination that MV Sanjeevani’s, VHF was not functioning properly. It had problems. He went on to concede that MV Priyamvada may not have been able to contact MV Sanjeevani on VHF.

75. The endeavour of Mr. Vernekar to wriggle out of the situation by banking upon the reply to the letter of MPT dated 3rd June, 1994, appears futile. The said reply (Exhibit-P1/81) was addressed on 14th June, 1994, as is evident from the date it bears and also the acknowledgment by MPT. Thus, the claim that MV Sanjeevani had arranged to place on board a hired VHF set to restore both way communications and a functional VHF was on board the vessel on the day of the incident simply does not deserve countenance. In fact, the said communication contains a clear and explicit admission that the receiving on the VHF set became nonfunctional and messages could only be transmitted by the vessel to the Port Signal Station and, thus, as an interim arrangement Port Signal Station was requested to transmit all messages to MV Sanjeevani via MV Gosalia Prospect. An inference is inescapable that the VHF was nonfunctional at the material times. I am, therefore, inclined to answer issue No.4(a)(4) in the negative and Issue No. 16 in the affirmative.

76. The assessors, particularly Mr. V. K. Gupta, advised the Court that it appeared that the equipments on MV Sanjeevani were ill-maintained and inadequate. Apart from VHF, MV Sanjeevani did not even have a pair of binocular on board as conceded by the Captain before the Deputy Conservator, MPT, that he had not seen the signal as he do not have binoculars on board. These equipments were absolutely essential to keep a proper look out.

77. Though the material on record indicates that there were certain inadequacies and deficiencies, yet the fact that on 3rd June, 1994 the vessel was inspected by the Port Authorities and MV Sanjeevani was advised to have a operational VHF and requisite man power in accordance with the safe manning practices, indicates that as of the date of the incident, the Port did not consider MV Sanjeevani to be a navigational hazard. This has to be seen in the context of the claim of MV Sanjeevni that it had successfully refloated and the said fact was informed to the Port Authority. Resultantly, it cannot be said that the situation was such that a duty was cast on MV Sanjeevani to alert ships in her vicinity as to her true condition and her inadequacy/deficiencies. Consequently, it cannot be said that there was failure or breach of duty on the part of MV Sanjeevani on the said count. Hence Issue No. 4(b) is answered in the affirmative.

78. In the plaint (paragraph 3(a)) the plaintiff has tabulated the minimum immediate mandatory man power as per MPT requirement, and actual available man power then on board MV Sanjeevani. The evidence of Mr. Satish Seth (PW[3]) and Mr. Anthony Brian D’Souza (PW[4]) that the personnel on board MV MV Sanjeevani, as of 5th June, 1994, were in excess of the minimum mandatory requirement prescribed by MPT, could not be impeached during the course of cross-examination. Thus, issue No.4(e) is required to be answered in the affirmative. Issue Nos.5(a) and 12: (Not providing Master or Chief Officer on board Priyamvada)

79. The fact that at the material time both the Master and Chief Officer of Priyamvada were ashore and were not on board Priyamvada, is indubitable. The parties were at issue as to what the consequences emanate from the absence of Master or Chief Officer not being on board Priyamvada when the navigation incident occurred.

80. Mr. Sen made a valiant effort to draw home the point that despite absence of Master or Chief Officer on board Priyamvada, the liability for the collision cannot be fastened on Priyamvada on the said count alone. A two pronged submission was sought to be canvassed. First, there is a world of difference between the vessel not being adequately manned by the owners and the vessel being adequately manned, yet, at some point of time, few personnel not being on board. Since the Defendant No.1 had provided crew in excess of the manning requirements, the mere fact that, at the material time, the Master and Chief Officer were not on board, cannot be a ground to fasten the liability on the Defendants. An effort was made to urge that the action of the Master and Chief Officer in disembarking from the ship was contrary to the instructions of the Defendants, and, therefore, the Defendants cannot be held liable.

81. Second, the Plaintiff was enjoined to prove that there was negligence on the part of the crew members at the helm of the Priyamvada, which contributed to the collision. In the absence thereof, the fact that the Master and Chief Officer were not on board Priyamvada, cannot be the basis to sustain the liability of the Defendants.

82. The first submission of Mr. Sen deserves to be noted to be repelled. The submission looses sight of the devastating impact of the absence of Master or Chief Officer on board Priyamvada in its safe navigation, especially in a critical storm situation. There are clear and categorical admissions on the part of Narayan M. Prabhu Shelkar (DW[1]) that, Mr. Vijay Kiran (DW[3]) and his experience did not make him eligible and competent to take command of Priyamvada as per the safe manning rules. Nor the certificate of competency of Vijay Kiran (DW[3]) was acceptable to MPT to allow him to take command of the Vessel. It was further conceded that the presence of Master, Additional Master / Chief Officer would have made difference in preventing Priyamvada’s drift and its collision / impact with MV Sanjeevani. It was further conceded that proper complement was not on board on the deck side of Priyamvada.

83. Mr. Vijay Kiran (DW[3]) was candid enough to concede that the certificate of competency he possessed did not allow him to have independent command of the vessel without Master or Chief Officer. What exacerbates the situation is the categorical admission by Mr. Vijay Kiran (DW[3]) that, prior to the date of occurrence, he had never taken independent command of any vessel for navigation, maneuvering or shifting.

84. The explanation sought to be offered on behalf of the Defendants that the Master or Chief Officer went ashore as the storm signal was lowered, does not merit acceptance. Both the assessors were in unison that the Master and Chief Officer could not have left Priyamvada under the control of the Second Mate. The assessors reckoned that the hauling down of storm signal is an insufficient justification for the Master and other senior Officers to have left the ship, especially during the monsoon climatic conditions.

85. Nor the endeavour on behalf of the Defendants to salvage the position by asserting that Vijay Kiran (DW[3]), was taking instructions from the Master via VHF provides a satisfactory explanation. Mr. Vijay Kiran (DW[3]), who had never independently navigated, maneuvered or shifted the ship taking instructions via VHF from the Master, who had no benefit of “on the scene appraisal of the situation” could hardly be a satisfactory substitute for the personal presence of the Master on board the ship.

86. The second limb of the submission of Mr. Sen that the Plaintiffs must, nonetheless, establish the negligence on the part of the crew on board Priyamvada at the time of the navigation incident appears attractive at the first blush. However, the submission crumbles traceless if considered through the enormity of the situation caused by the squall with an uncertified navigation personnel at the helm of Priyamvada.

87. The aspects of bad maneuvering, navigational errors and alleged incompetence of Vijay Kiran (DW[3]) which contributed to the navigation incident would be considered a little latter. Subject to the said consideration, I am inclined to hold that the Defendants failed or were negligent in not providing Master or Chief Officer on board Priyamvada at the material time. Resultantly, issue No.5(a) is answered in the affirmative, and issue No.12 in the negative. Issue Nos.4(c), (d), (f) and Issue Nos.5(b), (c), (d), (e) and (f), Issue Nos.15, 17 and 18:

88. All these issues pertain to the navigation incident and the version of the Plaintiff and the counter version of the Defendants as regards the manner of the collision, the causes therefor, action or inaction on the part of the vessels, which allegedly contributed to the navigation incident and the resultant damage to the respective vessels. In the backdrop of the incident, the evidence adduced by the parties and the material on record, it may not be possible to determine these issues independently and in water-tight compartments. The evidence overlaps. The finding on one issue may bear upon the finding on another, and, even obviate the finding on the corresponding issue(s). Moreover, the Court would be required to take into account the opinion of the assessors in the matter of the appraisal of navigation incident, causes therefor and the apportionment of the liability for the same. Since the assessors have also advised the Court and submitted their written opinion with regard to the navigation incident as a whole, I deem it proper to determine all these issues by common reasoning.

89. In order to appreciate the manner in which the navigation incident occurred, as a starting point, reference to the contemporaneous notes / correspondence by the Master / person in charge of the vessels becomes necessary. In the note of protest document (Exh.PW-1/83) lodged by MV Sanjeevani’s Captain on 6 June 1994, late Capt. D’Silva reported the incident, as under: “At around 1725 hrs. M.V.Priyamvada apparently had her engine working, moved ahead and picked up her anchor while crossing our bows and making another physical contact at the stem causing further damage at around 17.45 hrs. While continuing her forward movement across our bow M.V.Priyamvada heavily ran over MV Sanjeevani’s anchor chain cable thereby causing likely damage to the chain. Thereafter, I noticed that M.V.Priyamvada suddenly started moving aft of M.V.MV Sanjeevani and in the process crossed our stern, made heavy physical contract and damaged MV Sanjeevani’s stern light at 18.10 hrs. Subsequently, I noticed that M.V.Priyamvada continued to drag her anchor and fouled MV Sanjeevani’s rudder with M.V.Priyamvada’s anchor chain, even though M.V.Priyamvada was found to be using her engine.”

90. In the communication of even date to the Shipping Manager of SMIL (PW-1/56), Capt. D’Silva narrated the navigation incident, as under: “By 1715 Hrs. M.V. Priyam Vada was alongside us on the port side and bodily touched along our whole length. She remained alongside till 1725 Hrs. whilst she was getting her main engines ready. When alongside, she severely damaged our boat davits and boat, bullworks on bridge and captain’s deck, part of loader arm, a pilot lader and caused a number of holes in way of No.3 Wing Tank (Port), No.2 Wing Tank (Port) and No.1 Wing Tank (Port). Further damages are yet to be ascertained. By 1725 Hrs. M.V. Priyam Vada had her engines ready and picked up her anchor and moved ahead crossing our bows and touching the nose of our vessel causing damage at 1745 hrs. She also ran over our anchor cable probably causing damage or loss of anchor. Thereafter, Priyam Vada moved Aft. Of us and crossed our stern and at 1810 Hrs. touched our stern and damaged our stern light. M.V.Priyam Vada had fouled her anchor chain with our raddar propeller and was found using engines etc., in the process damaging our stern light. At 1800 hrs. when I took a fix and realized the Priyam Vada had bodily dragged us to a position nearly 0.[8] miles Aft. Of our original position and had loosened the hold of our anchor so our vessel started dragging. The second anchor was dropped at 1810 Hrs. to about 2 shackles but the vessel kept dragging till it grounded in its present position, which is break-water 2.15 miles by 234.”

91. In the report of accident dated 6 June 1994 (page 1261, a part of Exh.D-5/39), Vijay Kiran (DW[3]), the Second Officer of Priyamvada, narrates the incident, as under: “We were anchored in posn. From Bk. Water 2780 x 1.06’ At 1630 hrs. I observed whether deteriorating and wind picking up. I went forward to check the cable, at 1645 hrs. I paid out one shackle to make it 6 shackles in water as a safety measure. At 1700 hrs the weather worsened. We decided to make the engines ready. I found we were dragging on slowly to MV Sanjeevani, which was on our stbd. Qtrs. 1710 hrs. comm’d heaving anchor, strg. tried out. S.B.B. was given and the vessel was dragging on to MV Sanjeevani and we had come very close to soften the contact. I used engine at the same time. 1720 hrs. we made contact. Our (S) side to (P) side of Sanjeevaji. The vessel was still dragging and (S) quarter made contact with MV Sanjeevani’s (P) life boat which was swung out. I gave D slow ahead and tried to soften the blow and get my bows in, so that my stern moves away from MV Sanjeevani. Upto this time, MV Sanjeevani did not make any moves being on one anchor and cold ship (without engines). Also MV Sanjeevani was not responding to VHF calls. At 1722 hrs., the anchor was aweigh. I tried to keep clear of MV Sanjeevani by using my engines. At 1720 hrs., I gave full astern and fully cleared my vessel from MV Sanjeevani and dropped my P anchor. At 1739 hrs. my Master contracted me on VHF from fishing vessel Matsya Shakti and was throughout in touch guiding me. As I found more strain was coming on the chain. I dropped 2nd anchor i.e. (S) anchor @ 1756 hrs. and I was maintaining my posn. With help of engines. At 1827 hrs. I found suddenly MV Sanjeevani was dragging her anchor and coming on to us speedily. I gave my engine and helm to avoid the heavy contact and soften the impact. But MV Sanjeevani made contact with our (P) bow with her (S) bow and damaged our rollers and bullwark on (P) side and then safely moved astern of my vessel.”

92. If the reports of the Captain of MV Sanjeevani and Mr. Vijay Kiran (DW[3]) are compared and contrasted, an element of unanimity is discernible upto to the point of the first contact. By and large, the officers at the command of the respective vessels are in unison that at 17.00 hrs, weather worsened. There is, indeed, dispute with regard to the action taken by the crew on board the respective vessels and the exact time at which those actions were taken. However, late Captain D’Silva and Mr. Vijay Kiran (DW[3]) reported that there was first contact between Priyamvada and MV Sanjeevani around 17.20 hrs. For Captain D’Silva, by 17.15 hrs., Priyamvada was alongside MV Sanjeevani on the port side and bodily touched along the whole length of MV Sanjeevani. Priyamvada was along side MV Sanjeevani till

17.25 hrs. For Mr. Vijay Kiran (DW[3]), at 17.20 hrs., Priyamvada made contact with its starboard side to the port side of MV Sanjeevani.

93. In the light of the aforesaid sequence of events upto to the first contact, if the report of accident (Exh.D-5/39) is perused, the following facts emerge: (1) at 17.00 hrs., Mr. Vijay Kiran (DW[3]) realized that Priyamvada was dragging on slowly towards MV Sanjeevani; (2) at about 17.10 hrs., Mr. Vijay Kiran (DW[3]) commanded heaving anchor; (3) Priyamvada was dragging on to MV Sanjeevani; (4) Priyamvada came very close to MV Sanjeevani and to soften the contact, Mr. Vijay Kiran (DW[3]) claimed to have used the engines, before the first contact, (this is a major point of controversy); (5) Even after the first contact, Priyamvada was still dragging and its starboard quarter came in contact with MV Sanjeevani’s port side lifeboat. (6) Mr. Vijay Kiran (DW[3]) claimed to have given command of dead slow ahead and tried to soften the blow and got MV Priyamvada’s bows in so that its stern moved away from MV Sanjeevani. (7) Upto that time, according to Mr. Vijay Kiran (DW[3]), MV Sanjeevani did not make any move being on one anchor and a cold ship (without engines) and MV Sanjeevani was not responding to VHF calls.

94. Mr. Vernekar and Mr. Sen made a painstaking effort to demonstrate as to how the counter version propounded by Defendants and the Plaintiff, respectively, is incorrect. Referring to the timeline and the normal time required to perform the tasks deposed to by the witnesses, an endeavour was made to demonstrate that counter version of the rival party is improbable. A large part of the cross-examination of the witnesses of the rival party was also directed to disprove the counter version. However, in my considered view, an elaborate reference to the facts as elicited in the cross-examination of the witnesses is not warranted.

95. From the accident report of Mr. Vijay Kiran (DW[3]) and the evidence on record, few facts indubitably emerge. First and foremost, after the weather worsened, Priyamvada dragged its anchor. Dragging commenced at about

17.00 hrs. It was realized that Priyamvada was dragging on MV Sanjeevani which was on the starboard side of Priyamvada. This shows that Mr. Vijay Kiran (DW[3]) was fully cognizant of the presence of MV Sanjeevani and the imminent danger of Priyamvada colliding with MV Sanjeevani. Thirdly, there was an interval of about 20 to 25 minutes since the time Priyamvada started dragging its anchor to the first contact with MV Sanjeevani. Fourthly, Priyamvada continued to drag its anchor even after the first contact.

96. As noted above, there is a serious controversy over the second contact and the third contact which the Defendants alleged. Before appreciating the evidence and the position which emerges, it may be necessary to note few provisions of the Merchant Shipping (Prevention of Collisions at Sea) Rules, 1975, framed by the Central Government in exercise of the powers conferred by sub-section (1) of Section 285 of the Merchant Shipping Act, 1948. Rule 3 of the Regulations, inter alia, defines ‘vessel not under command’ and ‘underway’, as under: “(f) The term “vessel not under command” means a vessel which through some exceptional circumstances is unable to manoeuvre as required by these Rules and is therefore unable to keep out of the way of other vessel.”

(i) The word “underway” means that a vessel is not at anchor, or made fast to the shore, or a ground.”

97. Rule 5 provides for Look-out, as under: “Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”

98. Rule 7 incorporates the duties as to the assessment of risk of collision. It reads as under: “Risk of Collision: (a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist. (b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.

(c) Assumption shall not be made on the basis of scanty information, especially scanty radar information.

(d) In determining if risk of collision exists the following considerations shall be among those taken into account:

(i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change;

(ii) such risk may sometime exist even when on appreciable bearing change is evident, particularly when approaching a very large vessel or a tower when approaching a vessel at close range.”

99. Rule 8 deals with actions to avoid collision. It reads as under: “Action to avoid collision - (a) Any action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship. (b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

(c) If there is sufficient sea room, alteration of course along may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.

(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear. (e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.”

100. If the evidence on record is appraised in the light of the aforesaid Prevention of Collision Regulations, the assessment of the assessors, especially that of Capt. Gupta, that both the vessels did not maintain proper look-out appears justifiable. As noted above, Priyamvada was not manned in accordance with the Safe Manning Rules at the material time. The Master and the Chief Officer were ashore. Mr. Vijay Kiran (DW[3]) was the only navigating officer on board. It would not have been possible for Mr. Vijay Kiran (DW[3]) to maintain continuous alert watches from the bridge and ensure that the vessel was maintaining her position and be aware of other ships and traffic in the vicinity at all times. MV Sanjeevani, though had a Master, yet it appeared that there was no other navigating officer. MV Sanjeevani’s equipments were ill-maintained and inadequate. Poor look-out for want of the navigational officers and equipments, is by and large, attributable to both the vessels.

101. Since Priyamvada first dragged her anchor, it may be appropriate to evaluate the acts and omissions on the part of the crew on board Priyamvada with a view to avoid collision, keeping in view the duties expected of the dragging vessel. Firstly and prominently, the very act of leaving Priyamvada under the command of an uncertified and inexperienced navigating officer was in itself fraught with grave and imminent risk. Secondly, the evidence on record indicates that, being the only navigating officer, Mr. Vijay Kiran (DW[3]), was not in a position to maintain 24/7 watches from the bridge and when the weather deteriorated he was in the Chart room (Q.No.108). It also appeared that Mr. Vijay Kiran (DW[3]) failed to detect the dragging of Priyamvada early enough to take effective preventive action. Thirdly, the claim of Mr. Vijay Kiran (DW[3]) that the Master of the Vessel was in constant touch with him, and he was taking instructions from the Master via VHF indicates that, on the one hand, Mr. Vijay Kiran (DW[3]) did not possess the skill and experience to handle the critical situation, and, on the other hand, the instructions by the Master via VHF, if acted upon, were again fraught with the risk of assessment of the situation not being based on first hand knowledge. Fourthly, that though Mr. Vijay Kiran (DW[3]) noticed change in weather at 16.30 hrs., he ordered payout of one shackle of chain at 16.45 hrs. only. Fifthly, Mr. Vijay Kiran (DW[3]) decided to get engines ready only after the weather worsened at

17.00 hrs.

102. One gets an impression that timely action was not taken by Mr. Vijay Kiran (DW[3]) even after noticing the worsening weather. Delay in use of engines of Priyamvada also assumes critical significance. Even if the claim of Mr. Vijay Kiran (DW[3]) that the engines were ready at 17.10 hrs., is taken at par, discounting objections on behalf of the Plaintiff that the evidence on record suggest that the engines could not have been ready before 17.30 hrs., and well after the first contract, yet, it is imperative to note that, Mr. Vijay Kiran (DW[3]) claimed to have put the engines on ‘dead slow ahead’ at 17.20 hours only. At best, this could have been done only moments before the collision as the evidence on record suggest that Priyamvada had the first contact with MV Sanjeevani around 17.20 hrs., if not at 17.15 hrs.

103. It would be contextually relevant to note that Dr. Jalal Basheer (DW[4]), surveyor examined by the Defendants, conceded in the cross-examination that the engines of Priyamvada were started after the first impact. Mr. Basheer (DW[4]) went on to concede that Priyamvada had not heaved its anchor and the anchor was fully down till the impact of Priyamvada with MV Sanjeevani.

104. In the light of the aforesaid sequence of events and evidence, the delay in use of the engines when Mr. Vijay Kiran (DW[3]) realized that Priyamvada was dragging at 17.00 hrs., till the first impact, even though the engines were allegedly ready at 17.10 hrs., is rather inexplicable. Pertinently, as extracted above, Mr. Vijay Kiran (DW[3]) had realized that Priyamvada was dragging on MV Sanjeevani, and, yet, till the first impact, the engines of Priyamvada were not used. The assessors advised the Court that Priyamvada should have used its engines at an earlier point of time and with its highest power, with appropriate helm, to increase the distance between the ships and to ease the strain on the anchor chain and prevent further dragging. Failure to pay out more shackles on the port anchor and drop the second anchor, despite the stated Standing Instructions of the Master to drop the second anchor, also manifested inefficient seamanship and manoeuvering.

105. During the course of the cross-examination, Mr. Vijay Kiran (DW[3]) attempted to offer an explanation that he considered it inadvisable to drop the second anchor as the port anchor had already been dragging and had lost grip, and, thus, he did not comply with the Standing Instructions to drop the second anchor. The assessors informed the Court that the said explanation is hollow.

106. At this juncture, it would be necessary to note that Mr. Vijay Kiran (DW[3]) conceded in the cross-examination in unequivocal terms that Priyamvada was able to clear off MV Sanjeevani only after 9-10 minutes by giving astern movement of Priyamvada’s engine. This admission implies that for 10 minutes, Priyamvada was along side MV Sanjeevani, while both the vessels were rolling / pitching against each other. This admission also gives credence to the report of Capt. D’Silva that at 17.25 hrs., Priyamvada apparently had her engines working, moved away and took up her anchor while crossing MV Sanjeevani’s bow and making another physical contact at the stern causing further damage at around 17.45 hrs.

107. Mr. Gupta, the Assessor, has also highlighted the poor intra-ship communication between the bridge and engine room and bridge and forecastle of Priyamvada. This assessment is based on the evidence which indicates that Mr. Vijay Kiran (DW[3]) was required to personally go back and forth the bridge and fore-castle to communicate with other crew members, and, to handover walkie-talkies. This poor intra-ship communication prevented Mr. Vijay Kiran (DW[3]) from being on the bridge and making full appraisal of the situation and take charge of the vessel and the requisite action to avoid the collision.

108. Both the Assessors were in unison on the point that Priyamvada, under the command of Mr. Vijay Kiran (DW[3]), an inexperienced Second Mate, exhibited complacence, incompetent seamanship and navigational skills. This Court is persuaded to agree with the assessment of the assessors.

109. This propels me to the evaluation of the acts and omissions on the part of MV Sanjeevani towards her duty to avert the collision. It is pertinent to note that Mr. Vijay Kiran (DW[3]) has reported that MV Sanjeevani was holding on to its anchor till after the first contact and disengagement of Priyamvada from MV Sanjeevani by use of former’s engine. Mr. Vijay Kiran (DW[3]) also reported that MV Sanjeevani did not make any move upto that point. In fact, it is the case of Defendants that MV Sanjeevani was a dead vessel, unable to manoeuver on its own. MV Sanjeevani was also not responding to the VHF calls.

110. On the aspect of deficiency in look-out, MV Sanjeevani appeared to be ill-equipped. The evidence has revealed that the vessel’s compass was unreliable; MV Sanjeevani did not have any binocular on board; MV Sanjeevani’s VHF could only transmit, but not receive the messages. As noted above, a feeble attempt was made to account for the non-availability of VHF by offering an explanation that the hired VHF was installed, which was demonstrably incorrect, and by asserting that the communication was established via a sister ship; which was also found far from satisfactory. What materially impairs the case of MV Sanjeevani is the failure to use the engines throughout the storm and till it came to be grounded. Though the Plaintiffs asserted, and also adduced evidence that the engines were on standby at 16.50 hrs., at no point of time, the engines were used.

111. An endeavour was made to drag home the point that the engines were not used to avert greater damage. It defies comprehension that as to what greater damage the Master of MV Sanjeevani professed to avoid while there was an imminent danger of collision by Priyamvada and grounding of the vessel after it continued to drift for over two hours post impact. The evidentiary value of the statement recorded by the Deputy Conservator of Port in an inquiry under Section 359 of the Act, 1958, may be debated. However, the statement of Capt. D’Silva that he was not sure as to whether there was sufficient quantity of fuel to operate the main engine, at least for an hour, detracts materially from the case of the Plaintiffs that the engines of MV Sanjeevani were not used to avert greater damage.

112. The Plaintiffs claimed, Captain of MV Sanjeevani noticed that Priyamvada was dragging on MV Sanjeevani. The collision was imminent. No preventive action apart from giving long and short whistles and putting fenders was apparently taken to avert the collision. The assessors advised the Court that the crew on board MV Sanjeevani could have slipped the MV Sanjeevani’s own anchor chain and cleared out of the area since her engines were said to have been on standby since 16.50 hrs. The explanation sought to be offered that MV Sanjeevani would have taken a long time to lift the anchor as it chains had a lot of kinks and the anchor had embedded into mud, because MV Sanjeevani had been anchored in the same position for over 10 months, in the opinion of the assessors, does not constitute a valid ground for the masterly inaction by the Master of the Vessel. Having approached the Court with a case that MV Sanjeevani had maintained a vigilant look-out and noticed Priyamvada dragging on it around 15.00 hrs., MV Sanjeevani could have taken appropriate preventive action.

113. The thrust of the submission of Mr. Vernekar was that Priyamvada fouled the anchor chain of MV Sanjeevani, and, thus, anchor got uprooted and MV Sanjeevani drifted. The Court must record that not only there is a serious dispute between the parties with regard to the case of Priyamvada fouling the anchor chain of MV Sanjeevani, but also Captain Naphade and Captain Gupta, the assessors, differed in their assessment on this point. In the assessment of Captain Naphade, the second physical contact of Priyamvada and its bottom hull hitting hard MV Sanjeevani’s taut anchor cable underneath, undoubtedly transmitted MV Sanjeevani’s cable – vibrations to MV Sanjeevani’s anchor at sea-bed. This led to MV Sanjeevani’s anchor becoming free of mud / sea bed.

114. Mr. Gupta disagreed and offered explanation as to why in his opinion Priyamvada’s anchor did not foul the anchor chain of MV Sanjeevani.

115. In the view of this Court a definitive finding on this contentious issue is not absolutely warranted for the determination of the controversy. There is adequate material on record to indicate that there were in the least two contacts between Priyamvada and MV Sanjeevani. First contact lasted for about 10 minutes. In a cyclonic weather condition, a squall with wind blowing at high speed and MV Sanjeevani being on its sole anchor, the cause of the uprooting of the anchor, in a sense, becomes secondary. There was a definite cause and effect relationship between the thuds of Priyamvada on MV Sanjeevani and the dislodging of MV Sanjeevani’s anchor from the sea bed.

116. The aforesaid being the position as regards the acts and omissions on the part of Priyamvada and MV Sanjeevani, in avoiding the collision, the blame is required to be apportioned. The matter cannot be determined without appreciating the prime cause of the first impact. Indisputably, Priyamvada dragged its anchor and drifted. Mere dragging of anchor, in the then prevailing weather conditions, may not, by itself, sustain the weight of the entire liability. However, it is the acts and omissions thereafter, till the first impact, that assume significance in ascertaining the cause of the collision and fastening the liability.

117. In the case of the Velox (Supra), a case of dragging collision, both Velox and Viking Monarch were at anchor. The Plaintiff alleged that the crew on board the Velox was negligent, as they failed to keep good look-out, failed to keep the Velox under proper or any control; improperly caused or allowed her to collide with the Viking Monarch; failed to take any adequate engine and/or helm action to keep her clear of the Viking Monarch. The Defendant raised defence of inevitable accident. In that context, the Court held that the Velox ought not to have dragged her anchor in the first instance and if appropriate precaution be taken, she could have avoided the dragging and even if it could be said that the Velox was not to blame for dragging her anchor in the first instance, the Velox ought to have been much quicker to use her engine to arrest the dragging.

118. The decision emphasises the duty of the dragging vessel to arrest further dragging by taking timely preventive action including slipping of second anchor and use of engine and helm action.

119. In the case of Exeter City V/s. Sea Serpent[5] there was a collision involving three vessels. The Court held that, first of all Sea Serpent dragged. That was prima facie evidence of negligence. In that case, a submission was canvassed on behalf of Sea Serpent which had dragged on Exeter City that noticing Sea Serpent dragging towards Exeter City, the latter did nothing until Sea Serpent was close to her and that she ought at an earlier stage by engines and helm, to have given herself a sheer away. The Court found the submission untenable as sheering away during the whole gale and strong tide was fraught with risk. Thus, the entire blame was attributable to Sea Serpent.

120. The aforesaid decision, strongly pressed into service by Mr. Vernekar, may not govern the facts of the case with equal force. In the case at hand, there is material to indicate that MV Sanjeevani’s anchor was uprooted about

17.45 hrs. MV Sanjeevani drifted for over two hours before it came to be grounded in shallow waters. Inaction on the part of MV Sanjeevani to use the engines even after its port anchor was dislodged and it had started to drift, is the critical distinguishing factor.

121. In the case of Gerda Toft[6], again a collision caused by dragging of an anchor, the Admiralty Division held that it may be that a seaman cannot help his anchor dragging in certain circumstances, but what he can do, and what he has a duty to do, is to keep a good look-out and take prompt measures to stop the dragging if and when it does occur. The failure of the Gerda Toft to take timely measures, in that case, was was due to bad look-out. As both the officers were in the chartroom at the material time, and the only look out was that of the extremely ineffective seaman who remained on deck, the Court ruled Gerda Toft was to blame, not so much for dragging her anchor, as for the fact that during a substantial period of time, she failed to take action to stop dragging her anchor.

122. The aforesaid decision underscores the principle that even if some allowance is to be granted to a vessel that drags her anchor, the liability for

6 Lloyd’s List Law Reports 249 the damage caused to another vessel on which the first vessel drags on, and collides with, would turn upon the actions taken to avert further dragging and eventual collision. Both the absence of the requisite action as expected, in the circumstances of the given case, to arrest further dragging and the timeliness of such action, become relevant. If it could be demonstrated that the crew on board the dragging vessel either failed to take requisite action or took action belatedly, the liability cannot be contested. The Defendants claimed that after the impact with MV Sanjeevani, Priyamvada could safely reanchor. If that was the case, there was no reason for Priyamvada to take preventive action, (which it took later on to safely re-anchor) before it colluded with MV Sanjeevani. The Defendants failed to comply with the Merchant Shipping (Prevention of Collisions at Sea) Rules, 1975.

123. Ordinarily, it is not an answer that the vessel on which the first vessel drags on should have taken action to avoid the collision. A number of variables come into play when evasive action is expected of the second vessel. The distance, the time, the visibility and the situation in which the second vessel is anchored, all assume importance.

124. In the case at hand, the Plaintiffs are required to account for the inaction not from the point of view of averting collision, but arresting subsequent drifting of MV Sanjeevani. It is the case of the Plaintiffs that for over two hours after MV Sanjeevani dragged its anchor, it drifted and ultimately grounded in shallow waters. There is hardly any explanation for not using the engines of MV Sanjeevani to arrest further drifting of MV Sanjeevani and take control thereof.

125. At this stage, the condition in which MV Sanjeevani was then found becomes relevant. Indisputably, MV Sanjeevani was grounded for over 10 months at the same position before it was refloated prior to few weeks of the occurrence in question. The engines of MV Sanjeevani were allegedly tested only once and that too for a brief period, after it was refloated. Captain of MV Sanjeevani reported that he was not sure as to whether MV Sanjeevani had sufficient fuel to run the main engine for at least one hour, and, whether MV Sanjeevani was under Class. The letters addressed on behalf of SMIL to the Port Authority on 13 May 1994 (Exh.P-3/112A) and 25 May 1994 (PW-1/52) revealed the then condition of MV Sanjeevani. In the letter dated 13 May 1994, as regards the future plan, it was categorically stated that MV Sanjeevani was beyond economical repairs, and, thus, it had to be taken to a ship breaking yard for scrapping. In the letter dated 25 May 1994 also, there is a reference to leakages and constant pumping out of leakage water and the requirement of tugs for bringing the vessel to a vacant berth for carrying out further repairs to stop leakages.

126. If the aforesaid condition of MV Sanjeevani is appraised in the light of how ill-equipped MV Sanjeevani was, including the absence of adequate fuel, an inference becomes justifiable that the grounding of MV Sanjeevani resulting in a total constructive loss cannot be wholly attributed to Priyamvada. Therefore, issue Nos.4(c) and (d) are required to be answered partly in the affirmative. Issue No. 4(f) deserved to be answered in the negative. Issue Nos.5(b), (c), (d) and (e) are answered in the affirmative and Issue No. 5(f) partly in the affirmative. Issue Nos.15 and 17 are required to be answered in the negative. Issue No.18 is also required to be answered in the negative, save and except the condition of MV Sanjeevani, which bears upon the determination of the quantum of damages. Issue Nos.[8] and 19:

127. In view of the findings on the aforesaid issues, the Defendants failed to establish that the Plaintiffs are responsible for the collision and are liable for damages and loss caused to the Defendants. Suffice to note that, in support of the claim that Priyamvada had re-anchored, and, thereafter, MV Sanjeevani dragged her anchor and colluded with Priyamvada, and, thereby caused damage to its anchor chain, the Defendants have not led satisfactory evidence. In fact, during the course of the final arguments, Mr. Sen fairly submitted that the Defendants do not press the Counter Claim on account of the same having become insignificant. Thus, Issue No. 8 stood not pressed, and Issue No.19 is answered in the negative. Issue Nos.6, 13 and 14 - Act of God / Inevitable accident:

128. Mr. Sen submitted that the totality of the circumstances would lead to an inexorable inference that the dragging was the result of ‘vis major’. It was submitted that the vessels in question were not the only vessels which drifted in the exceptional cyclonic condition. Several ships dragged anchor in that squall. Reliance was placed on the report of Dr. Jalal Basheer (DW[4]) to show that, apart from MV Sanjeevani and Priyamvada, five more vessels had drifted and/or grounded due to cyclonic weather. Since storm signal was lowered four hours before the storm in question struck, the Defendants were entitled to believe that there was no possibility of any storm. Therefore, there was no reasonable possibility of anticipation of the storm, urged Mr. Sen.

129. Mr. Sen further submitted that, it is an admitted position that the weather conditions were exceptional at the material time. Therefore, the Defendants cannot be held liable for the Act of God, or, at best, inevitable accident. To buttress these submissions, Mr. Sen placed a very strong reliance on the judgments of the Supreme Court in the cases of Vohra Sadikbhai Rajakbhai and Ors. V/s. State of Gujarat and Ors.[7] and State of Uttar Pradesh and Ors. V/s. Mcdowell and Company Ltd.[8]

130. Mr. Vernekar joined the issue by advancing a submission that the reliance on behalf of the Defendants on the aforesaid pronouncements is completely misconceived. If the aforesaid judgments are read in their correct perspective, they support the case of the Plaintiffs. Mr. Vernekar would urge, the Master and the owner of Priyamvada were expected to anticipate that there was reasonable possibility of such occurrence during the monsoon, especially when the storm signal was hoisted on immediate preceding three days at the port. It was submitted that every unexpected wind and storm does not insulate the tort feasor from the liability if there was reasonable possibility of anticipation.

131. Mr. Vernekar would further urge that the defence of inevitable accident also does not hold any ground. Since the collision was primarily on account of the absence of the Master on board Priyamvada and the navigation of Priyamvada by Mr. Vijay Kiran (DW[3]), an inexperienced and incompetent Second Mate, by no stretch of imagination, could it be urged that the collision was inevitable, despite reasonable care and caution and skill expected of the Master of Priyamvada in the given circumstances.

132. In P. Ramanatha Aiyar Advanced Law Lexicon, the Act of God is described, as under: “Act of God (Vis Major): an overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood, or torando. The definition has been statutorily broadened to include all natural phenomena that are exceptional, inevitable, and irresistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight. 42 USCA & 9601(1). - Also termed act of nature: act of Providence (Black, 7th Edn., 1999). The expression ‘act of God’ signifies the operation of natural force free from human intervention, such as lightning. It may be thought to include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones and tidal-bures and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse, unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing at.”

133. In the case of The Divisional Controller, KSRTC V/s. Mahadeva Shetty[9], the Supreme Court enunciated that The expression "Act of God" signifies the operation of natural forces free from human intervention, such as lightening, storm etc. It may include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like.

134. In Vohra Sadikbhai Rajakbhai and Ors. (supra), the Supreme Court after referring to the rule of strict liability recognized in Rylands V/s. Fletcher10, expounded the juridical connotation of ‘act of God’ as under:

145. Brief legislative history and development of law in regard to the limitation of the liability may be apt. Being the signatory to the Brussels Limitation Convention of 1957, the precursor of the Convention of 1976, India introduced Part XA to provide for limitation of liability by Act 25 of 1970. Part XA suffered significant amendments under the Amendment Act 63 of 2002, which came into force with effect from 1 February 2003. Before the said amendment, Section 352A of the Merchant Shipping Act, 1958 provided for an exception to the right to limit the liability by providing that the owner of a sea going vessel may limit his liability in respect of the claims arising from named occurrences unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner. It was also provided under sub-section (2) of Section 352A that the burden of proving that the occurrence did not result 13 (1988) 2 Lloyds’ LR 361 from his actual fault or privity shall be on the owner. Post amendment of 2002, italicised portion does not find place in sub-section (1) of Section 352A and sub-section (2), (in the aforesaid terms) stands deleted.

146. Article 4 of the Convention, 1976, reads as under: Article 4 – Conduct barring limitation “A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.”

147. The distinction in the matter of the nature of fault on the part of the owner and on whom the onus lay, under the Convention 1976 and the unamended provisions of Act, 1958, is of critical salience. The Convention of 1976 while providing for conduct barring limitation or breaking of limitation cast a very high degree of proof, to deprive a person liable of the right to limit the liability. Under the unamended Act of 1958, a person liable would be deprived of the right to limit the liability, if the occurrence giving rise to the claim resulted from the actual fault or privity of the owner. In contrast, the Convention of 1976 incorporates a higher degree of culpability, by providing that the loss ought to result from personal act or omission, committed with intent to cause such loss, or recklessly and with knowledge that such loss would probably result. The latter part of Article 4 of the Convention touching upon the mental element or recklessness bordering on wantonness coupled with knowledge, in effect casts an almost impossible onus to prove to the contrary. Secondly, the onus is on the claimant who opposes the limitation of liability.

148. Keeping in view the aforesaid rationale behind the principle of limitation of liability and the distinction in Part IX post 2002 amendment, re-adverting to the facts of the case at hand, a cumulative consideration adverted to above, hardly justifies an inference that the Defendant No.2 succeeded in discharging the onus to prove that the occurrence giving rise to the claim did not result from the actual fault or privity of Defendant No.2.

149. The submission that there was Standing Instructions to maintain requisite complement on board Priyamvada and the Master and Chief Officer disembarked from Priyamvada in violation of the Standing Instructions, and, therefore, the Defendant No.2 cannot be held liable does not commend itself. It is the duty of the owner, operator or Manager of the Vessel to scrupulously observe the Safe Manning Rules. In the event of a navigation incident resulting in damage to person or property, on account of ex-facie negligence or dereliction on the part of the employees, the owner cannot be permitted to wriggle out of the situation by asserting that the loss has not resulted from his actual fault or privity. In any event, the Defendants have failed to adduce satisfactory evidence to discharge the said onus.

150. In the light of the aforesaid consideration, I find substance in the submission of Mr. Vernekar that the Defendants failed to establish that they were entitled to limit their liability. The omission on the part of the Defendants to seek constitution of limitation fund cannot be brushed aside as immaterial or inconsequential. In the wake of the correspondence that ensued, immediately after the occurrence, calling upon the Defendants to remedy the situation, if the Defendants intended to limit their liability, they ought to have initiated appropriate proceedings for setting up of the limitation fund, as envisaged under Section 352-C of the Act, 1958. A bald submission that the Defendants are entitled to limit their liability without any concrete steps to get the liability limited, cannot be an answer to the claim for damages for the collision. I am, therefore, persuaded to answer issue Nos.10 and 11 in the negative. Issue Nos. 7 and 9 – Damages

151. The very entitlement of the Plaintiff to claim damages was questioned by Mr. Sen on the ground that the Plaintiff has not suffered any injury. MV Sanjeevani was to be transferred to SMIL at written down value. The vessel was, in fact, transferred to SMIL. Thus, the Plaintiff did not suffer any loss, as such. Mr. Sen would urge that, Mr. Mukesh Saglani (PW[2]), also conceded that it was SMIL who suffered the loss, if at all. In these circumstances, the order passed in CHS No.714 of 2002 which decided who can sue, having been allowed to attain finality, the claim for damages at the instance of the Plaintiff is not tenable.

152. The aforesaid submission was countered by Mr. Vernekar asserting that, the Defendants had resisted the impleadment of SMIL on the ground that SMIL was not entitled to sue. The Defendants, thus, cannot be permitted to now urge that the Plaintiff had not suffered the loss. The transfer of MV Sanjeevani to SMIL was for a consideration. It would, thus, be preposterous to urge that the Plaintiff did not suffer any loss.

153. As noted above, by an order dated 8 July 2002, CHS No.714 of 2002 taken out by SMIL for permission to be brought on record in the place and stead of the Plaintiff, came to be rejected. The said Chamber Summons was strongly opposed by the Defendants by specifically relying upon the provisions contained in clause (c) of Section 6 of the Transfer of Property Act, 1882, on the ground that what the Plaintiff had was a mere right to sue and that cannot be transferred. The said submission found favour with this Court and the prayer to substitute SMIL as the Plaintiff came to be rejected.

154. It is imperative to note that even the prayer of SMIL to implead it as coplaintiff alongwith the Plaintiff also came to be rejected by this Court. Indeed, the said order attained finality. However, in my considered view, the Defendants cannot be permitted to approbate and reprobate. On the date of the navigation incident, the Plaintiff was the owner of MV Sanjeevani. The Plaintiff pursued the claim for damages even before the institution of the suit. It was pursuant to the order dated 29 March 1996 in Company Application No.2-S of 1996 in Company Petition No.1 of 1983, the wreck of MV Sanjeevani came to be transferred to SMIL. Moreover, from the perusal of the Consent Terms, to which the Plaintiff and SMIL were the parties, it becomes evident that the liability of the Plaintiff to sell MV Sanjeevani to SMIL at the written down value was contingent upon the personal guarantees of Respondent Nos.[3] and 4 therein having been duly discharged as stipulated in the said Consent Terms.

155. It appears that the transfer of MV Sanjeevani by the Plaintiff to SMIL was a part of the comprehensive settlement between the parties. In that view of the matter, it would be impermissible to urge that the Plaintiff did not suffer any loss, especially when the impleadment of SMIL was resisted tooth and nail. What rights SMIL would have in the damages which may be awarded to the Plaintiff is an altogether different matter and can be determined in the event a dispute arises between the Plaintiff and SMIL. Therefore, the challenge to the entitlement of the Plaintiff to seek damages does not carry much substance.

156. What should be the measure of quantum of damages ? As a matter of first principle, the same principle governs the assessment of damages in collision action in the Admiralty jurisdiction as that which governs the action for destruction or conversion of a property. The damages which flow reasonably and naturally from the wrongful act resulting in loss of the vessel, are recoverable. Undoubtedly, the principle of remoteness of damages deserves due application.

157. In the case of Owners of Dredger Liesbosch V/s. Owners of on which reliance was placed by Mr. Vernekar to support the submission that the Plaintiff is entitled to, in the least, the insured value of the vessel, elaborately deals with the measure of damages in an admiralty action for damages for the loss of the vessel in the collision. In the said case, the Respondent’s steamship had fouled the moorings of the Appellant’s dredger Liesbosch and did not free them until steamship had carried Liesbosch into open sea, where the latter sank and became total loss. Liesbosch was insured for 5520l.

158. In the backdrop of the aforesaid facts, the Privy Council enunciated that when the Vessel is lost by collision due to the sole negligence of the wrongdoing vessel the owners of the former vessel are entitled to what is called restitutio in integrum, which means they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage.

159. The Privy Council exposited the measure of damages and the factors to 14 1993 A.C. 449 be taken into account, in the following words: “…….The true rule seems to be that the measure of damages in such cases is the value of the ship to her owner as a going concern at the time and place of the loss. In assessing that value regard must naturally be had to her pending engagements, either profitable or the reverse. The rule, however, obviously requires some care in its application; the figure of damage is to represent the capitalized value of the vessel as a profit-earning machine not in the abstract but in view of the actual circumstances. ……… The assessment of the value of such a vessel at the time of loss, with her engagements, may seem to present an extremely complicated and speculative problem. But different considerations apply to the simple case of a ship sunk by collision when free of all engagements, either being laid up in port or being a seeking ship in ballast, though intended for employment, if it can be obtained, under charter or otherwise. In such a case the fair measure of damage will be simply the market value, on which will be calculated interest at and from the date of loss, to compensate for delay in paying for the loss.” (emphasis supplied)

160. Mr. Vernekar advanced a three-fold submission. Firstly, the measure of damages should be the replacement value of MV Sanjeevani. That would be the most fair measure of damages. Mr. Vernekar urged that the claim for damages as specified in the Particulars of Claim (Exh. M to the plaint), which takes into account the cost of the acquisition of the Vessel of the same age, condition and class, as MV Sanjeevani, after giving credit for the depreciation and the scrap value of the wreck of MV Sanjeevani i.e. Rs.[2] Crores, has not been specifically disputed.

161. Moreover, the testimony of Mr. Anil V. Salgoacar (PW[1]) and Mr. Mukesh Saglani (PW[2]), who deposed in support of the claim for replacement value of MV Sanjeevani went unimpeached. Secondly, if the Court does not consider replacement value as the fair measure of damages, the insured value of MV Sanjeevani i.e. Rs.9,50,00,000/-, as is evident from the Insurance Policy (Exh.P-1/86) issued by the Oriental Insurance Company Limited, constitutes the value of MV Sanjeevani.

162. Thirdly, at any rate, Mr. Vernekar would urge, once the liability of the Defendants is established, and even if the Plaintiff fails to prove the actual loss, the Plaintiff is entitled to reasonable compensation. To this end, a very strong reliance was placed by Mr. Vernekar on the judgment of the Supreme Court in the case of Vohra Sadikbhai Rajakbhai and Ors. (supra).

163. Per contra, Mr. Sen submitted that the Plaintiff is not entitled to damages at all. MV Sanjeevani, as is evident, drifted and, eventually, grounded for the sole reason that MV Sanjeevani could not be brought under control by use of engines. Had engines of MV Sanjeevani been used, like Priyamvada, there was no reason for MV Sanjeevani not being brought under control as in the same storm situation and alleged shallow waters, Priyamvada was brought under control. Mr. Sen would, thus, urge the principle of remoteness of damages needs to be kept in view. By no stretch of imagination, according to Mr. Sen, the alleged collision can be attributed as the sole cause for the grounding of MV Sanjeevani. At best, the Defendants could foresee some physical damage to MV Sanjeevani in the event of contact. However, the total constructive loss of MV Sanjeevani was never within the contemplation of the parties as the damage likely to be suffered by MV Sanjeevani on account of the collision.

164. Mr. Sen would further urge that, under no circumstances, the Plaintiff can claim the replacement value of the vessel. Taking the Court through the condition of MV Sanjeevani, as emerged from the documents emanating from the Plaintiff, Mr. Sen would urge that much before the collision and after the alleged refloating of the vessel, the Plaintiff had claimed that MV Sanjeeani was beyond the economic repairs and was to be scrapped and MV Sanjeevani was indeed scrapped. The Plaintiff has not alleged or proved any loss on account of scrapping of MV Sanjeeani.

165. Secondly, the Plaintiff was to transfer MV Sanjeevani to SMIL at a written down value. What was the written down value of MV Sanjeevani was not brought on record. Nor is it the claim of the Plaintiff that it suffered loss on account of the transfer of MV Sanjeevani as a wreck.

166. Mr. Sen further submitted that the material on record indicates that MV Sanjeevani was, in fact, a dead ship and navigational hazard. Mr.Sangnani (PW[2]) who was examined to prove the replacement value of MV Sanjeevani, had neither any personal knowledge nor professed to prove the replacement value.

167. Reliance on the decision in the case of Owners of Dredger Liesbosch (supra) for claiming insured value of the vessel as the damages is also wholly misplaced, urged Mr. Sen. The decision in Owners of Dredger Liesbosch (supra), in terms, holds that the market price of the vessel was to be determined on the basis of the market price of a comparable dredger (involved in the said case). In the case at hand, Mr. Sen would submit, there is no material to show as to what was the value of MV Sanjeevani as of the date of the navigation incident. On the contrary, the material on record shows that MV Sanjeevani was nothing but a dead ship.

168. Mr. Sen further submitted that even reliance on the judgment of the Supreme Court in the case of Vohra Sadikbhai Rajakbhai and Ors. (supra) is not well founded. Reasonable damages can be awarded if it is impossible to prove the damages. In the case at hand, the Plaintiff was in a position to adduce evidence to establish the exact damage suffered by MV Sanjeevani and the compensation awardable for the same. However, the Plaintiff failed to lead such evidence. The surveyors’ reports tendered in the evidence of Anil

V. Salgoacar (PW[1]) are of no assistance to the Plaintiff as those reports were not proved in evidence by examining the concerned surveyors. In this view of the matter, the Plaintiff is not entitled to recover even the reasonable compensation having failed to prove the damage to MV Sanjeevani, submitted Mr. Sen.

169. In the particulars of claim (Exh. M), the Plaintiff has assessed the cost of a new trans-shipper like MV Sanjeevani at Rs.43,82,00,000/- and after accounting for depreciation at 35% of the cost of the replacement, the Plaintiff claimed to have suffered loss of Rs.15,33,70,000/-. Out of the said amount, the scrap value of Rs.2,00,00,000/- has been deducted. The claim is, thus, quantified at Rs.13,33,70,000/-. In its very nature, the depreciated value of the cost of replacement of the vessel is rooted in facts and hinges upon the condition of MV Sanjeevani as of the date of the navigation incident.

170. At this stage, the Court need not again delve in detail as to the condition of MV Sanjeevani as of the date of the navigation incident, as while determining issue Nos.[4] and 16, this Court has recorded findings which touch upon the condition of MV Sanjeevani. It would be suffice to refer to two documents, which throw light on the estimation of the Plaintiff itself as regards the condition of MV Sanjeevani. First, the communication dated 13 May 1994 (Exh.PW-3/112A), whereby SMIL gave plan of action to MPT regarding refloating of MV Sanjeevani. As regards the future plans, SMIL categorically informed the Port that MV Sanjeevani was beyond economic repairs. MV Sanjeevani was to be taken to a ship breaking yard for scrapping outside the port. In the follow-up communication dated 25 May 1994 (Exh PW-1/52), it was further informed that the temporary repairs were carried out to MV Sanjeevani to arrest the leakages and leakage water was being constantly pumped out. Request for allotment of a vacant berth was made to carry out further repairs to stop leakages arising from the temporary repairs for floating the vessel. Secondly, it could not be controverted that under the Consent Terms, the Plaintiff had agreed to sell MV Sanjeevani to SMIL at a written down value.

171. In the face of these documents, endeavour on the part of the Plaintiff to bank upon the communication by the Port dated 3 June 1994 pertaining to the inspection of MV Sanjeevani that, only VHF was not in working condition, to buttress its case that MV Sanjeevani was otherwise, fully operational, does not commend itself. The said communication cannot be considered as a certification for the total seaworthiness of MV Sanjeevani. Moreover, having informed the Port that MV Sanjeevani was beyond economic repairs and it was required to be broken and scrapped, and, also having agreed to transfer the vessel at a written down value, the Plaintiff cannot be permitted to urge that the measure of damages ought to be the replacement value of MV Sanjeevani. The claim presupposes that MV Sanjeevani was in a seaworthy condition.

172. This claim is also required to be tested in the backdrop of the fact that MV Sanjeevani was grounded for over 10 months before it was refloated. The condition of MV Sanjeevani, which was in a grounded state for over 10 months, must have deteriorated. It is true, the evidence on record does not equip the Court to arrive at a definite conclusion regarding the condition of MV Sanjeevani as of the date of the navigation incident. In the light of the aforesaid consideration, reflecting upon the condition of MV Sanjeevani, the claim for replacement value is far from reality.

173. The endeavour of Mr. Vernekar to persuade the Court to award the insured value of the vessel does not find support in the decision of Privy Council in the case of Owners of Dredger of Liesbosch (supra). Mr. Sen was justified in submitting that, in fact, the Privy Council has held that the cost at which the Vessel was initially purchased or the insured value of the vessel is not the barometer on which the value of the sunken / lost vessel is to be determined. For the sake of more clarity, it would be apposite to extract the relevant observations of the Privy Council in the said judgment: “…..What Scrutton L.J. in fact awards as the value of the dredger to the appellants at the time and place of loss is 9177l., which was what was paid for the Adria in September 1930, but, as the Lord Justice points out, that fact is not evidence of the market value of the Liesbosch in November, 1928, when the Liesbosch was lost, any more than is the cost to them of the Liesbosch when they bought her, or the amount for which she was insured.” (emphasis supplied)

174. The insured value cannot be an indication of the true value of the Vessel at the time of the navigation incident. A variety of factors may bear upon the insurer determining the insured value of the vessel. At best, that would be the matter of contract between the insurer and insured and would not bind the third parties.

175. Mr. Vernekar submitted that the Plaintiff has adduced adequate evidence to show the damage caused to MS Sanjeevani in the collision. Reliance was placed on the Survey Reports of Ericson and Richards dated 11 June 1994 (Exh.PW-1/82), dated 17 August 1994 (Exh.PW-1/85), Under Water Survey Report of EMGE Diving (Exh.PW-1/88), further Survey Report of EMGE Diving dated 18 April 1995 (Exh.PW-1/90), the letter dated 15 November 1995 from Kaniksha Salvage (Exh.PW-1/92) to the effect that MV Sanjeevani cannot be salvaged and has to be broken in situ and parts removed and the Wreck Removal Agreement dated 29 January 1996 with

176. All these documents were tendered in evidence along with the Affidavit in lieu of examination-in-chief of Anil V. Salgoacar (PW[1]). Even if maximum latitude is given to the admissibility of the evidence of Anil V. Salgoacar (PW[1]), discounting the fact that he was not available for cross-examination, yet the aforesaid documents could not have been proved in evidence by Anil

V. Salgoacar (PW[1]). Mere tendering of the Survey Reports and the opinion of the Salvors, without examining the Surveyors and Salvors as witnesses, is of no significance. If the Plaintiff intended to prove the Survey Reports to show the damage, or for that matter, the condition of the Vessel as of the date of the navigation incident, the Plaintiff must have examined the Surveyors and Salvors as witnesses to substantiate their assessment of the Vessel, as documented in the aforesaid reports. I am, therefore, inclined to hold that the aforesaid documents, though marked, do not command evidentiary value. Issue No. 9 is thus answered in the negative.

177. This takes me to the last limb of the submission of Mr. Vernekar that at any rate, the Plaintiff is entitled to reasonable compensation, even if the Plaintiff fails to prove the value of the vessel as of the date of the navigation incident.

178. In the light of the aforesaid consideration and the view this Court is persuaded to take, the negligence and wrongful acts on the part of Priyamvada have been proved. However, this Court is not inclined to accept the claim of the Plaintiff that the negligence or wrongful act on the part of Priyamvada was the sole cause for the total constructive loss of MV Sanjeevani. As noted above, there were acts and omissions on the part of the Master of MV Sanjeevani as well, especially after MV Sanjeevani started dragging its anchor, after Priyamvada collided with MV Sanjeevani. The assessors have also advised the Court that there were acts or omissions on the part of both the Vessels, which contributed to the eventual grounding of MV Sanjeevani.

179. In the totality of the circumstances, this Court considers it appropriate to apportion the blame in equal measure. Thus, there was a contributory negligence on the part of MV Sanjeevani as well, to the extent of 50%.

180. In the case of Vohra Sadikbhai Rajakbhai and Ors. V/s. State of Gujarat and Ors. (surpa), wherein the Appellants therein had suffered damage, including the loss of 1500 boar trees, on account of flooding of their fields due to release of water from the dam, the Supreme Court held that no doubt, the Appellants had not led any evidence to show the actual cost of each tree, in order to arrive at the precise quantum of damages. However, even in the absence of such an evidence showing the exact loss suffered, the Appellants would still be entitled to reasonable compensation once the factum of suffering loss has been proved. Where a wrong has been committed, the wrongdoer must suffer from the impossibility of accurately ascertaining the amount of damages. Likewise, a party claiming compensation must give best evidence to prove the damages.

181. Mr. Sen would urge that the Plaintiff failed to lead best evidence, and, therefore, is not entitled to even reasonable compensation. I find it difficult to accede to this submission. There is evidence to indicate that Priyamvada dragged its anchor and collided with MV Sanjeevani. On account of heavy thuds, MV Sanjeevani suffered damage. Eventually, the imact resulted in MV Sanjeevani’s anchor being uprooted and the resultant grounding of MV Sanjeevani in shallow waters. To urge that the failure on the part of the Plaintiff to establish the condition of MV Sanjeevani as of the date of occurrence and the damage suffered by MV Sanjeevani and, therefore, it is not entitled to any compensation would be taking an unrealistic view of the matter.

182. What should be the reasonable compensation ? It is the case of the Plaintiff that MV Sanjeevani was required to be scrapped as wreck. It had received Rs.[2] Crores as scrap value of the said wreck. There is also material to show that the Plaintiff itself had claimed much before the navigation incident that MV Sanjeevani was beyond economic repairs and was required to be broken and sold as scrap. These factors coupled with the condition of MV Sanjeevani, adverted to above, persuades the Court to hold that the measure of compensation would be the value which MV Sanjeevani could have fetched after being broken and sold as scrap as of the date of the navigation incident. As the report of Inspection dated 3 June 1994 indicated that MV Sanjeevani was indeed refloated and the wreck of MV Sanjeevani was sold as scrap after two years of the navigation incident, in my considered view, the scrap value of MV Sanjeevani as of 5 June 1994 would be required to be assessed at triple the scrap value obtained by the Plaintiff i.e. Rs.[6] Crores (2 Crores X 3). Out of the said amount, a sum of Rs.[3] Crores would be required to be deducted towards 50% negligence apportionable to MV Sanjeevani. Out of the balance amount of Rs.[3] Crores, the Plaintiff claimed to have received Rs.[2] Crores as scrap value of MV Sanjeevani. The Defendants would, thus, be liable to pay balance amount of Rs.[1] Crore to the Plaintiff towards the compensation.

183. The conspectus of aforesaid consideration is that the suit deserves to be partly decreed and the Counter Claim dismissed.

184. Hence, the following order: ORDER

(i) The Suit stands partly decreed with proportionate costs i.e. 50%.

(ii) Counter Claim stands dismissed with costs.

(iii) The Defendants do pay a sum of

Rs.1,00,00,000/- (Rupees One Crore only) to the Plaintiff along with simple interest @ 9% p.a., from the date of the institution of the suit till payment or realization.

(iv) The assessors opinions be sealed and kept along with the judgment and shall form part of the record to be preserved permanently.

(v) Decree be drawn accordingly.