Bangladesh Inland Water Transport Corporation (Appellant)
M/s. Seres Shipping Incorporated & ors. (Respondent)
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
JUDGEMENT June 13, 1983.
No action to enforce any claim or lien against a vessel or her owners in respect of any damage or loss caused to another vessel shall lie two years after the date of arising of the cause of action…………(18)
Cases Referred to-
M.L. Madina vs. M.L. Jalamoni, 30 DLR 149; Arraiz 16 Asp MLC 451; P.L.M. 8; Kashmir 16 Asp MLC 81.
Shah Mohammad Sharif, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on Record—For the appellant (In all the appeals.)
M. S. Zoha Chowdhury, Advocate-on-Record —For the Respondents Nos. 1 & 2 (In all the appeals.)
M. Hafizullah, Advocate instructed by Md. Aftab Hossain Advocate-on-Record—For Respondent No. 3.
Ex-parte—For the Respondent No. 4 (In all the appeals.)
Civil Appeal No. 113 to 116 of 1983.
(From the Judgment and order dated 21-1-1982 passed by the High Court Division, in Admiralty suit No. 2,3,4 and 5 of 1980.)
Fazle Munim CJ.- These appeals arise from the judgments passed in Admiralty Suit Nos. 2,3,4 and 5 of 1980 on January 21, 1982.
2. These suits, four in number, were instituted by the plaintiff-appellant, Bangladesh Inland Water Transport Corporation, for compensation against the defendant-respondents on account of losses sustained by the appellant for causing damage to some of its vessels, by the defendants vessels, namely, M.V. MINI LARK, M.V. MINI LANCE, M.V. LUCK and M.V. MINI LIGHT.
3. In Admiralty Suit No. 2 of 1980 which was filed on February 11, 1980, facts as stated in the plaint show that the vessels, M.V. AFRA and Barage FARIDA belonging to the appellant were at safe anchor near Gokechar, Narayanganj. At about 8-30 hours on January 23, 1976. M.V. MINI LARK collided with them and caused heavy damage. The collision was due to the carelessness and negligence of the crew of M.V. MINI LARK. For losses suffered by the appellant, which were shown in schedules ‘A’ and ‘B’ of the plaint the appellant claimed Tk. 2,43,955/- against the respondents.
4. Admiralty Suit No. 3 of 1980 which was instituted on February 11, 1980 the appellant claimed a decree for Tk, 1,27,100/-for causing damage to its vessel, C-1060, by M.V. LIGHT which dashed against the vessel when it was lying at safe anchor at Silo-Jetty, Chittagong at 10-30 hours on February 11, 1975. The carelessness and negligence of the master and crew of the defendant’s vessel caused the accident.
5. Admiralty Suit No. 4 of 1980, which was instituted on February 20, 1980 show that the appellant’s tanker, T-1050, was lying at safe anchor at Jamuna Oil Co. Jetty, Chittagong and at about 15-30 hours on June 22, 1975 defendants’ vessels MINI LUCK hit the vessel, thereby causing heavy damage to the tanker. For the carelessness and negligence of the master and crew of the defendants’ vessels the damage was caused to the tanker and the appellant, therefore claimed Tk. 1,42,223.31 paisa for the loss.
6. In Admiralty Suit No. 5 of 1980 which was filed on February 22, 1980 the appellant claimed a decree for Tk. 52.000/- for causing damage to the appellant’s vessel MV Oil tanker, T—1052. The damage to the vessel was caused at 07-55 hours on December 17, 1975 when the defendant’s vessel M.V. MINI LUCK dashed against it. As in the aforesaid suits, causes of the accident were attributed to the carelessness and negligence of the master and crew of the M.V. MINI LUCK.
7. In all the suits, respondent No. 1 were the owners of the vessels, namely, M.V. Mini Lark, M.V. Mini Lance, M.V. Mini Luck and M.V. Mini Light which are operating in Bangladesh. Respondent No. 2 is the agent of respondent No. 1 in Bangladesh and respondent No. 3 is the agent of Protective and Indemnity Club. Respondent No. 4, namely, Principal Officer, Mercantile Marine Department, Chittagong is the Controlling Authority of the plaintiff-appellant. Defendant-respondent No. 3 filed an application under Order 1, Rule 10 of the Code of Civil Procedure for striking out its name. Defendant-respondent No. 2 filed an application under Order 7, Rule 11 for rejection of the plaint on the ground of limitation.
8. These applications were heard analogously by the Admiralty Court which allowed the application filed by respondent No. 2 on the finding that the plaint is barred under section 8 of the Maritime Convention Act, 1911. Application filed by the respondent No. 3 for striking out its name was however, not allowed.
9. Leave was granted to consider whether, in view of prolonged negotiations for amicable settlement of the dispute between the parties, and the conduct of the respondent Nos. 2 and 3 by giving assurances for amicable settlement of the dispute and offering of some compensation, the time limit fixed under section 8 of the Maritime Convention Act, 1911 to bring an action in court can be considered, whether the question of limitation being a mixed question of law and fact, can be decided without entering into evidence and hearing the suit on merit and plaint can be rejected under Order 7, rule 11 of the Civil Procedure Code, whether in the absence of any Rules of the Government for filing any formal application for extension of time beyond two years under section 8 of the Maritime Convention Act, 1911, the party is required to file any application for extension of time, whether on the face of the statement made in the plaint explaining the delay in bringing an action in Court, a party is required to file any application for extension of time within the scope of section 8 of the Maritime Contention Act, 1911, and whether the case involves the interpretation of section 8 of the Maritime Convention Act, 1911.
10. Civil Appeal Nos. 113, 114, 115 and 116 of 1982 arise from Admiralty Suit Nos. 2, 3, 4 and 5 of 1980 respectively. As the points involved for our consideration in these appeals are the same, they were heard analogously and this judgment will govern all the appeals.
11. It appears that on March 18, 1977 an agreement as Chartered Party Agreement was entered into between the Government of Bangladesh and defendant-respondent No. 1. Under this agreement the aforesaid vessels belonging to defendant No. 1 started operation in Bangladesh. A clause in the agreement provided that the owners of the vessels were to give a guarantee to defendant-respondent No. 3 in case of any incident which may occur due to the operation of the vessels. After the incidents caused damage to appellant’s vessels a meeting was held in their office where an agreement was reached that the damages caused by the different vessels would be settled according to clause 42 of the Chartered Party Agreement and defendant No. 1 would furnish a Bank guarantee through defendant No. 2. On March 25, 1976 a Bank guarantee was accordingly furnished by defendant No. 3 in favour of defendant No. 4 to pay any amount in respect of incidents to the appellant’s vessels. On March 23, 1977 the guarantee was extended upto March 24, 1978.
12. On the failure of the defendant-respondents to satisfy the claims of the plaintiff-appellant, the latter served a legal notice on 30.1.77/1.2.77 (for meeting the claims).
On March 12, 1977 defendant No. 5 informed the appellant that defendant No. 1 was ready to settle the claims and to start negotiations and offered Tk. 15000/- for satisfaction of claims made in Suit No. 2 of 1980. Appellant, however, refused to accept the aforesaid sum and asked for starting negotiations by their latter dated July 2, 1977. On July 19, 1977 the appellant was informed that the owners and underwriters of the vessels expressed their willingness to reach an amicable settlement in the matter. On two different dates, namely, May 17, 1978 and January 31, 1979 appellant wrote to defendant No. 2 for amicably settling the matter. On March 30, 1979 defendant No. 2 informed the appellant that they were no longer the agent of defendant No. 1, they should start negotiations with defendant No. 3 who acted on behalf of the owners of the vessels. Appellant accordingly wrote to defendant No. 3 for taking necessary action towards settlement of the claims without further delay but they expressed their regret to do so on the ground that they were not the agents for the vessels at the relevant time. Further correspondence was carried on between the appellant and respondent No. 3 in this matter but ultimately on June 13, 1979 respondent No. 3 repudiated the appellant’s claims on the ground of limitation. After hearing the parties the Admiralty Court allowed the application of defendant No. 2 for rejection of the plaint on the ground that it was barred under section 8 of Maritime Convention Act, 1911, but the Court did not allow the application of respondent No. 3 for striking out.
13. Mr. Shah Mohammad Sharif, Counsel for the appellant, submitted that there was protracted correspondence and meetings between the appellant and the Representatives of respondent No. 2 over the settlement of the claims for compensation for the losses incurred by the appellant and that their claims were never repudiated on the ground of limitation by respondent No. 2. On the other hand the appellant was offered some amounts though not in payment of full compensation and was assured of an amicable settlement on the ground of negotiations. Due to these offers and assurances the appellant was misled and as a consequence they did not take up the matter before an appropriate forum. Respondent No. 2 cannot, therefore, succeed on the ground of limitation.
14. Mr. Sharif also submitted that the period of two years prescribed by section 8 of the Maritime Convention Act, 1911 within which a proceeding is to be commenced can be extended further by the Court in accordance with the Rules of the Court. Under the Admiralty jurisdiction there are no Rules for filing any formal application for extension of time beyond two years. In these circumstances the Court, if satisfied by the statements made in the plaint can extend the period beyond two years even without a formal application.
15. For deciding this point, it would be necessary to consider the provisions of section 8 of the Maritime Convention Act, 1911. It runs as follows:
“8. No action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another Vessel, her charge or freight, or any property on board her, or damage for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel whether such vessel be wholly or partly in fault, or in respect of any salvage services, unless proceeding therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered, and an action shall not be maintainable under this Act to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment:
Provided that any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of Court, extend any such period, to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendants’ vessel within the jurisdiction of the Court, or within the jurisdiction of the Court or within the territorial waters of the country to which the plaintiff’s ship belongs or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.”
16. No dispute has been raised as to the applicability of the Maritime Convention Act and the aforesaid provisions therein. Whatever objection might have been expressed as to its applicability to the facts of the present case has been negatived by the Admiralty Court. There is no reason to differ with its findings that ”the applicability of the Maritime Convention Act, 1911 in the Admiralty jurisdiction of the Court cannot be questioned in view of this Court’s decision in M.L. Madina vs. M.L. Jalamoni, 30 DLR 149. The Court also did not object against its discretion to extend time beyond two years mentioned in the aforesaid section, even though no rules have yet been made under the Maritime Convention Act. The Court found that “from words of the proviso it is clear that the Court has discretion to extend time in any action to which section 8 applied” vide, the Arraiz 16 Asp MLC 451. Where the Court should extend time beyond the period of two years mentioned in section 8, the Court relying upon two cases, namely, the case of the P.L.M. 8 and in the Kashmir 16 Asp MLC 81 refused to extend time. In the former case the plaintiff’s application to grant an extension of time was refused on the ground that the plaintiff had ample opportunities of commencing the proceedings against the owners of the vessels which was to blame for the collision within two years of the collision. It was observed that “to let the vessels off would work an injustice because the blame was found to rest with her but it would equally work an injustice if the defendants were deprived of the legal right of the limitation which they got”. In the Kashmir 16 Asp MLC 81 the plaintiff was ignorant that she had a claim, even then the Court refused to grant an extension of time.
17. In the instant case it is not clear why the appellant was waiting to bring the action even though the period of limitation was known to it any why it was allowed to run out. Not only the period of limitation was allowed to run out, the Bank guarantee was also allowed to expire, though the original period of the guarantee was extended upto 24th March, 1978. It appears that there was no agreement between the parties that the defendant would be bound to satisfy the claims outside the period of limitation. It is also not understood why the appellant did not move even when defendant No. 1 informed the appellant on March 30, 1979 that they had ceased to act as the agent of respondent No. 1 and respondent No. 3 informed the appellant that the Bank guarantee had already expired and the appellant’s claim had become barred by limitation. The Admiralty Court was rightly dismayed at the callous indifference of the appellant in not bringing an action within time and at its futile, attempt to persuade the defendants to meet its claims through letters and personal persuasion. The Court also noted with surprise that the appellant did not even make any application before it for granting an extension of time beyond two years and that it did not take advantage of the opportunity to file such an application during the hearing of the suit which extended beyond a day.
18. Mr. Sharif, Counsel for the appellant, could not advance any new grounds for condoning the lapses in bringing an action within period of limitation nor could he give us any reason why the respondents should be deprived of their legal right based thereon. His attempt to get any interpretation of section 8 of the Act which will be favorable to the appellant must fail for the simple reason that the words used therein are, indeed, very clear. It says that no action to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel; her cargo or freight etc. is maintainable unless proceedings therein are commenced within two years from the date when the damage or loss etc. was caused. His reference to the words used in the proviso is also of no avail because it confers power on the Court to extend two year period of limitation in accordance with Rules of Government to such extent and on such conditions as it thinks fit. There were no Rules of Government covering the present case. Apart from the absence of any necessity to extend the time beyond the period of limitation, there has been no application before the Court explaining the reason for its inability to do so. So far as the need for giving reasonable opportunity of arresting the defendants’ vessel within the jurisdiction of the Court was concerned, no such question arose in the present case which necessitates the extension of time.
In the circumstances stated above, all the appeals are dismissed without any order as to costs.
Source : 36 DLR (AD) (1984) 82