' The controversy that has come up in this case as a result of an order passed by me on an application moved by the plaintiff being C.M.A. 549 of 2001, under section 152 read with section 15, C.P.C. Whereby, following orders without notice to the defendants were passed on 9-3-2001: "This is an application under section 152 read with section 151, C.P.C. Vide order, dated 3-3-2001, the plaintiffs were directed to furnish security to the tune of US. Dollar 4,32,400 against the claim of detention charges.
' It is contended by learned counsel for the plaintiff that the vessel is one and the same and both the suits i.e, Suit No,2 of 2001 (Haji Muhammad Youns v. M.V. Victor Kurnatovskiy and another) and Suit No,3 of 2001 (Haji Muhammad Younus v. M.V. Victor Kurnatovskiy and others) if the security in the above referred sum is furnished by both the plaintiffs in two suits separately it will amount to duplication of the same security. Such detention charges if at all are ordered to be paid, the same would be payable by both the plaintiffs in equal proportion. The contention appears to be justified.
Therefore, the order, dated 3-3-2001 stands modified only to the extent of furnishing security in the above referred amount by both the plaintiff jointly.
' The listed application stands disposed of in view of the above terms"
2. When the plaintiff approached the Nazir of this Court to furnish security, the defendants resisted such efforts and promptly made the application for the recall of the above order, giving rise to present controversy. Brief resume of the background will be necessary to appreciate the respective continuous of both the parties.
3. Suit was filed under the Admiralty Jurisdiction of this Courts, by the plaintiff, ho is consignee/holder of bill of lading, in respect of a consignment of 8000 metric tons of Indian White Sugar on board M.V. Victor Kurnatovskiy (defendant No,1)
' It was alleged in the plaint that the said consignment is not being delivered despite letter of indemnity (LOI) and bill of lading (B/L). Claim for damages with the permission of the Court, in the sum of Rs,2,55,000 U.S. $ by way of amendment was also made.
4. At the motion of the plaintiff the vessel was arrested on 22-1-2001 and subjected to guarantee in the sum of U.S. $ 5,31,000 (value of consignment) in event it desire to leave to alternately to discharge the cargo before leaving.
5. The defendants resisted the suit, and so also filed a counter-claim on account of part dues, berthaqe, mooring, tugs, Pilotage, Shifting in the sum of Rs,56.124 U.S. $ and detention charges at the rate of U.S. $ 6,500 per day &oh, 16-11-2000 till 15-2-2001 totaling to U.S $ 4,59,124.
6. In the back drop of the above factual position both parties moved application i.e, by the plaintiff for the arrest of the vessel subject to furnishing of surety in the sum of their claim and likewise by the defendant for the detention of the cargo claiming possessory lien for unpaid freight.
7. This Court vide order, dated 3-3-2001 allowed delivery of the subject consignment subject to furnishing security sum of U.S. $ 4,32,300 to secure the claim of unpaid freight (demurrage or detention charges) besides U.S. $ 56,124 on account of other charges. Likewise interest of the plaintiff was secured by subjecting the defendants to furnish security in the sum of U.S $ 2,55,000 on account of alleged losses sustained by the plaintiff for the delay in discharge of cargo.
8. On application having been made (C.M.A. No,549/2001) the orders reproduced above in the earlier part was made, as it was claimed that the detention charges are payable jointly and severally by the consignees and not by the individual consignee, as it would amount to duplication of security.
9. As stated above, the defendant took serious objection to such an ex parte order, which according to them is prejudicial to their rights and interest. According to M/s. A.H. Akber Mirza, and Agha Faquir Muhammad, Advocates the defendants are made to suffer on account of default of the plaintiff.
10. Notice of the application was ordered counter-affidavit has been filed. Both the learned counsel was directed to address the Court as to the purport and import of the terms demurrage and detention with reference to maritime law. I must record my deep appreciation for the valuable assistance rendered by all the learned counsel in this regard.
11. Mr. Agha Faquir Muhammad learned clothes for the defendant contended that each party and consignee is separately liable for the claim of demurrage as well as detention charges. According to him demurrage is in the nature of damages and penalty which charter/owner for the vessel is entitled in case the delay is caused by the consignee or the holder of bill lading. He further emphasised that the demurrage and detention are one and the same. As the liability of the demurrage and detention is not joint but each consignee is liable separately and independently in terms of the charter party, it is to be paid accordingly. He supports order dated 2-3-2001 recorded earlier.
12. In support of his contentions that each consignee/holder to Bill of Lading is liable separately he has referred to cases of Straker v. Kidd & Co. 1878 Queen's Bench Division. Vol. III. Jesson v. Solly (June 29, 1811), Leer v. Yates, Cowell, Gorst Feb 1811. In contra Mr. Shaiq Usmani learned counsel for the plaintiff contended that the claim of the defendants if at all is restricted to "detention charges" in the written statement. According to him detention is payable only once and if payable then liability( of the consignee or holder Bill of Lading is joint. It was further contended that the defendants cannot be allowed to read benefit out of such detention claim in entirety, against each of the consignee the cargo, it was asserted that order modifying to the extent of joint surety, is just and proper. In support of his contention he has placed reliance on the case of Compania Naviera Azuero, S.A. v. British Oil & Cake Mills, Ltd. And others, a decision of Queen's Bench Division (Commercial Court) Llayed's List of Law Reports (1957) Vol-I) page 312, and so "Law of Demurrage by Hugo Tibrge" in support of his contention.
13. Cases of such nature are not frequent, controversy of the kind arises seldom more particularly in this part of world where the commerce by see is facing great slum. It was contended by the learned counsel for the defendants that after expiry of the period of lay days demurrage becomes payable as stipulated in the bill of lading or charter party as the case may be and the detention are payable on account of berthage in loading or discharging the cargo beyond the demurrage period. According to the learned counsel for the plaintiff detention is payable but once and is payable jointly and by all the consignee pro-rata, in order to address the controversy I deem appropriate to explore the meanings of the technical terminology being employed in their respective favour by each of the party.
14. The term 'Lay Day' or Laytime is defined in the Black's Law Dictionary as: "In the law of shipping, days allowed without penalty to charter party for loading and unloading the cargo."
15. And the definition as contended in the Marine Time Encyclopaedic Dictionary (3rd Edition, 1992) by Eric Sulivan, it has been defined to mean; "Laytime: Time allowed by the ship owner to the voyage charter or bill of lading holder in which to load and/or discharge the cargo. It is expressed as a number of days or hours or as a number of tons per day. There is normally a provision in the charter party for the commencement of laytime, which is often at a certain hour after notice of readiness has been tendered by the master, a provision for periods when laytime does not count, for instance during bad weather, week-ends or holidays and a provision for laytime being exceeded, when demurrage or damages for detention become payable, or no being fully used, when dispatch money may be payable".
' And the word demurrage as understood in the maritime, is defined in the Black's Law Dictionary to means: "in maritime law, the sum which is fixed by the contract of carriage or which is allowed, as remuneration to the owner of a ship for the detention of vessel beyond the number of days allowed by the charter party for loading and unloading or for sailing also the detention of vessel by the freighter beyond such time Demurrage is extended freight and is the amount payable for delays by receiver in loading or unloading cargo.
' It is stipulated damages for detention."
' Demurrage, as per Marine Encyclopedic Dictionary, means: "Amount of money paid to the ship owner by the charters, shipper or receiver, as the case may be, for failing to complete loading and/or discharging within the time allowed in the voyage charter party. The rate of demurrage, normally an amount per day or part of a day, is agreed in the charter party. Some charters specify that, after a certain period of demurrage, either additionally demurrage or damages for detention become payable. When demurrage becomes payable, it is said of a ship that she is on demurrage. Once a ship is on demurrage, no deductions are made for excepted periods, such as week-ends, in the calculation of the demurrage charges; hence it is said once on demurrage, always on demurrage.
' Definition of detention contained in the Marine Encyclopedic Dictionary reads as under: "Claim by the carrier, q.v. Of a ship as in liquidated damages against the charter, q.v. Or receiver of the cargo after a period of the demurrage, q.v. Expires, also to keep in custody by law."
15. Now adverting to the merits of the case. The defendants in their counter-claim has made claim in the following terms: ' Para. No,24. That the plaintiff is also liable to pay detention charges for detaining the vessel at the rate of US $ 6,500 per day as per clause 24 of the Charter Party Clause.
' Para. No,25. That the defendant vessel thus makes the following counter-claims from the plaintiff. {{TABLE}}
(i) Port Dues US $ 3,179 Berthage (51 days 28,179 16-11-2000 to 5-1-2001)
(iii) Mooring (38 days 13,131 6-1-2001 to 12-2-2001)
Tugs 2,238 Pilotage 2,073 Shifting (03 times) 6,506 Extra Pilotage/Boat 800 56,124 Detention charges 4,03,000 @ US $ 6,500 per day From 16-11-2000 till 15-2-2001 Total US $ 4,59,124 {{TABLE}} ' That the detention charges continue to increase @ US $ 6,500 per day tills such time the cargo is discharged and the defendant vessel sails."
16. Mr. Shaiq Usmani, learned counsel for the plaintiff by referring to the above claim laid much emphasis on the words "Detention" used in paragraph reproduced above (sic) that the claim of the 'defendant is restricted to the 'detention' only, and same cannot now, be allowed to extend to 'demurrage' which according to him have difference connotation in the maritime law. Learned counsel for the defendant points out that indeed two terms are different in their meaning but in principal both are referred to an amount payable on account of the delay caused by the consignee or holder of Bill of Lading either, in the loading or discharge of the cargo, he has drawn my attention to clause 7 of the Charter party referred in para. 24 of the counter-claim as reproduced above, runs as follows.
' Demurrage, rate, (loading and discharging) U.S $ 4, 700 p.d.p.r. (per day or pro rata). (clause-7).
Demurrage in this particular case is expressed in clause 7 of the Charter party as follows.
10 (ten) running days demurrage at rate stated in box 18 per day or pro rata for any part of the day, payable day by day to be allowed. Merchants altogether at the ports of loading or discharging. It was further pointed out that the clause 24 being a rider clause of the Charter party which reads as under: "All time lost due to non-readiness of cargo and/or cargo documents at loading respectively discharging port (s) to count as detention and to be charged at the rate of US $ 6,500 per day pro rata. Owners have the right to claim demurrage and/or detention directly against Shippers/Receivers and/or cargo interests."
' Followed by rider clause No,24 which reads as under: "All time lost due to non-readiness of cargo and/or cargo documents at loading respectively discharging ports to count as detention and to be charged at the rate of US. $ 6,500 per day pro rata. Owners have the right to detention directly against the shipper/receiver and/or cargo interests."
17. After referring the above he has drawn my attention to the contract of sale, dated 6-11-2000, executed between the who is also voyage charter in the instant case and the present contract which provided for the discharging condition, reads as under: ' Discharging Conditions: "The seller shall deliver free of freight in vessel's hold to the buyer at a safe place of discharge at port of detention. The sugar shall be discharged at a rate of 1.000 metric tons per whether working day of 24 consecutive hours, Saturday afternoons, Sundays and official public holidays excluded even if used. Demurrage and dispatch shall be for the account of buyer at charter party rate, maximum US. $ 6000/3000 despatch being half demurrage rate. All cost at discharge port to be for the buyers account. The relevant charter party is to form an integral part of this contract."
18. Above terms and conditions were pointed out to highlight that as per terms and conditions the plaintiffs are not only liable for the demurrage as contracted under the sale contract and detention charges are payable for the breach, on account of failure to take deliver within layday or even within the demurrage period. As stipulated' in various documents referred to above. Mr. Shiaq Usmani. However, contended that no notice of readiness was given which is a precondition to trigger the demurrage charges. Such contention is refuted by the defendants, who claims to have given such notice. Controversy being not relevant at the moment will be decided at the trial.
' In Jesson (Supra) in a claim for demurrage initiated by the Captain of vessel. It was held if a consignee accept goods under a bill of lading at the bottom of which is memorandum that ship is to be cleared in 16 days, 8 per day demurrage to be paid after that time, the master, upon delivery of the goods may recover demurrage against the consignee. It was held by Mansfield, C.J. That if consignee will take the goods he adopts that contract".
' Heath, J. Held in the case reported as Jesson (Supra), that it is clear that plaintiff is entitled to demurrage, either from the consignor or consignee. Demurrage is only an extended eight, and the consignee by adopting this bill of lading, makes himself liable to demurrage as well as to freight.
19. In the case of LEER (supra) it was held. In a case' where bill of lading allowed 20 laydays and stipulated for 4 and per day demurrage, after words same of the consignees who chose to have their goods bonded and same were stacked under most, their goods could not be delivered despite demand, till the upper tiers were cleared. It was held that each of the consignee were liable on general count or demurrage". Learned counsel for the plaintiff Mr. Shaiq Usmani, contended that the above cases are distinguishable and much water has flown, he contended law of antiquities have no more relevance. In support he has relied on Queen's Bench Decision reported as Compania Naviera Azuero (supra). It relates to a claim for demurrage against the endorsee of 14 bill of lading in respect of bulk cargo of grain. In a detailed judgment it was observed at page 322 of the reported case" that though each bill of lading specify particular quantity of grain, but they do not identify any such quantity as a separate parcel, because the grain, as appears on the face of this bill of lading was: "stowed in bulk all over and the holder of bill of landing, when he receives it is entitled to receive it out of the general bulk cargo showed all over the specified amount which is set out in his bill of lading; but it is not a segregated quantity. It is merely a specified quantity to be delivered to him out of an undivided bulk."
"It was further observed at page 324" that seems to me to treat the receiver as all one body to pay demurrage or receive dispatch money and there is nothing to suggest separate group of receiver for the two ports."
20. Laydays, demurrage and detention, though in fact, refers to identifiable waiting period, for the vessel to load or discharge cargo, following one after the other, yet each period different implication. First, being stipulated period, without any charges. Second again stipulated/contracted period but, carryin, stipulated charges referred to as "demurrage lastly, being in breach of contract, entailing damages akin to section 73 of the Contract Act, call as "detention charges" demurrage and detention charges o are payable by the defaulting party.
21. In the instant suit, prima facie, under Charter party, dated 10-11-2000 laytime for discharging cargo is specified in Box No,16(b) as 1000 MT P.W.W.D SHEX EIV (Per Weather Working day, Sunday Holidays excepted) and as per sale contract, dated 6th November, 2000 plaintiff contracted to pay under "discharging conditions" as reproduced in para. 17 above and, 10 (ten) running demurrage days are stipulated under the Charter party at the rate of 6,500 per day pro rata and so also liability as to detention is against cargo interest in terms of clauses 7 and 24 thereof as reproduced in para.16 above.
22. Though plaintiff disputes as the import of terms and conditions of Charter party, dated 10-11- 2000 to which above reproduced terms relate and emphasised that plaintiff is bound by Charter party, dated 6-9-2000, wherein, no such liability is fixed on the plaintiff. At this juncture it is not possible to conclusively decide -under which of the Charterparty the parties would be liable. Such issues can only sorted out at final trial.
23. The case of Compania Noveira Azuero. S.A. (Supra) do not support the contention of the plaintiff's counsel as the consignment related to bulk cargo which was treated as one lot.
24. If there are more than one bill of lading and independent sale contract proceeding the same, together with charter party, each stipulating for fixed number of laydays, fixed demurrage and so also detention charges then tentatively I am persuaded to follow the cases cited as Straker. Lesson and Leer (supra) referred by the counsel for the defendants and I am not persuaded by the contention of the learned counsel for the plaintiff that liability is joint and not several. Merely stating that judgments cited by the defendants are of antiquity will not lessen their value unless it is shown that there has been some transformation or change in law. No reasons or arguments to ignore such judgment were advanced. It will, however, be open to plaintiff to challenge the wisdom and obiter of said citation at the time of final arguments with some supporting material.
25. In view of the foregoing discussion orders, dated 9-3-2001 are recalled each of the plaintiff to furnish security separately, in terms of order, dated 2-3-2001.
26. I may, however, observe that liability as to the demurrage and detention of any, will be decided at the time of final adjudication, observation made above are only tentative and will not affect or prejudice the claim of either of the party on merits.
' C.M.As. Nos.606 and 608 of 2001 stand disposed of in view of the above terms.