Appellate Division (Civil) :
Syed Mahmud Hossain CJ
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Bene Martime Inc……….Petitioners
vs
Alam Feed Limited and others……..Respondents
Judgment
February 27th, 2018
Admiralty Court Act (XLIII of 2000)
Sections 3 and 4
Jurisdiction of Admiralty Court-The question of declaration of General Average Bond and signing of General Average Guarantee by the plaintiff is out of ambit of the jurisdiction of this Court (the Admiralty Bench of the High Court Division) and falls under the purview of arbitration. …………(6)
Kamal-ul-Alam, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record- For the Petitioner.
Rokunuddin Mahmud, Senior Advocate with M Hafizullah, Senior Advocate and Oliullah, Advocate instructed by Zainul Abedin, Advocate-on-Record-For the Respondents.
Judgment
Md Inunan Ali J : This civil petition for leave to appeal is directed against the order dated 12th day of February, 2018 passed by the Admiralty Bench of the High Court Division in Admiralty Suit No. 5 of 2018 allowing the application filed by the plaintiff to deliver the cargo of 28,200.57 MTs of Soyabean Meal/Extraction.
2. The facts, relevant for disposal of this civil petition for leave to appeal, are that respondent No.1, Aman Feed Limited imported 28,200.57 MTs of Soyabean Meal/Extraction which arrived at Chittagong Port on Board Vessel MV Bene. Respondent No. 1 as the plaintiff filed Admiralty Suit No. 5 of 2018 before the Admiralty Bench of the High Court Division praying for a decree in the sum of taka 18,51,29,195.79 equivalent to US$22,17,116.11. In that admiralty suit, the plaintiff filed an application for direction upon defendant Nos. 1-4 for immediate delivery of 28,200.570 MTs of Soyabean Meal/Extraction from vessel MV Bene which was lying at Chittagong Port.
3. Defendant No.3, owner of Vessel MV Bene (the petitioner herein) appeared in the suit and filed written objection against the application for direction for delivery of the consignment and also filed an application for direction upon the plaintiff to furnish General Average Bond and General Average Guarantee before obtaining the delivery of the cargo. In the meantime, the plaintiff had obtained an order of arrest of defendant No. 1 Vessel on 25-1-2018.
4. By the impugned order dated 12-2-2018, the Admiralty Court allowed the application paying for direction for delivery of the cargo and at the same time rejected the prayer of the petitioner for direction upon the plaintiff to furnish General Average Bond and General Average Guarantee.
5. We heard Mr Kamal-ul-Alam, learned Senior Advocate, appearing for the petitioner and Mr Rokunuddin Mahmud, learned Senior Advocate with Mr M Hafizullah, learned Senior Advocate and Mr Oliullah, learned Advocate appearing for the respondents.
6. We find from the impugned order that the Admiralty Court noted that the question of declaration of General Average Bond and signing of General Average Guarantee by the plaintiff is out of ambit of the jurisdiction of this Court (the Admiralty Bench of the High Court Division) and falls under the purview of arbitration and that this Court lacks jurisdiction to enter into the issue since the same squarely falls within the jurisdiction of the Arbitral Tribunal.
7. We have considered the submission made by the learned Counsel appearing for the parties concerned.
8. The matter of entitlement to General Average Bond and sea-worthiness of the vessel will undoubtedly be decided by the Arbitral Tribunal. We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security.
9. In the facts and circumstances, we are on the view that ends of justice would be sufficiently met if the plaintiff, respondent No.1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 1,80,000 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26-2-2018).
10. On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court.
With the above observations and directions the civil petition for leave to appeal is disposed of.
Syed Mahmud Hossain CJ
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Bene Martime Inc……….Petitioners
vs
Alam Feed Limited and others……..Respondents
Judgment
February 27th, 2018
Admiralty Court Act (XLIII of 2000)
Sections 3 and 4
Jurisdiction of Admiralty Court-The question of declaration of General Average Bond and signing of General Average Guarantee by the plaintiff is out of ambit of the jurisdiction of this Court (the Admiralty Bench of the High Court Division) and falls under the purview of arbitration. …………(6)
Kamal-ul-Alam, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record- For the Petitioner.
Rokunuddin Mahmud, Senior Advocate with M Hafizullah, Senior Advocate and Oliullah, Advocate instructed by Zainul Abedin, Advocate-on-Record-For the Respondents.
Judgment
Md Inunan Ali J : This civil petition for leave to appeal is directed against the order dated 12th day of February, 2018 passed by the Admiralty Bench of the High Court Division in Admiralty Suit No. 5 of 2018 allowing the application filed by the plaintiff to deliver the cargo of 28,200.57 MTs of Soyabean Meal/Extraction.
2. The facts, relevant for disposal of this civil petition for leave to appeal, are that respondent No.1, Aman Feed Limited imported 28,200.57 MTs of Soyabean Meal/Extraction which arrived at Chittagong Port on Board Vessel MV Bene. Respondent No. 1 as the plaintiff filed Admiralty Suit No. 5 of 2018 before the Admiralty Bench of the High Court Division praying for a decree in the sum of taka 18,51,29,195.79 equivalent to US$22,17,116.11. In that admiralty suit, the plaintiff filed an application for direction upon defendant Nos. 1-4 for immediate delivery of 28,200.570 MTs of Soyabean Meal/Extraction from vessel MV Bene which was lying at Chittagong Port.
3. Defendant No.3, owner of Vessel MV Bene (the petitioner herein) appeared in the suit and filed written objection against the application for direction for delivery of the consignment and also filed an application for direction upon the plaintiff to furnish General Average Bond and General Average Guarantee before obtaining the delivery of the cargo. In the meantime, the plaintiff had obtained an order of arrest of defendant No. 1 Vessel on 25-1-2018.
4. By the impugned order dated 12-2-2018, the Admiralty Court allowed the application paying for direction for delivery of the cargo and at the same time rejected the prayer of the petitioner for direction upon the plaintiff to furnish General Average Bond and General Average Guarantee.
5. We heard Mr Kamal-ul-Alam, learned Senior Advocate, appearing for the petitioner and Mr Rokunuddin Mahmud, learned Senior Advocate with Mr M Hafizullah, learned Senior Advocate and Mr Oliullah, learned Advocate appearing for the respondents.
6. We find from the impugned order that the Admiralty Court noted that the question of declaration of General Average Bond and signing of General Average Guarantee by the plaintiff is out of ambit of the jurisdiction of this Court (the Admiralty Bench of the High Court Division) and falls under the purview of arbitration and that this Court lacks jurisdiction to enter into the issue since the same squarely falls within the jurisdiction of the Arbitral Tribunal.
7. We have considered the submission made by the learned Counsel appearing for the parties concerned.
8. The matter of entitlement to General Average Bond and sea-worthiness of the vessel will undoubtedly be decided by the Arbitral Tribunal. We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security.
9. In the facts and circumstances, we are on the view that ends of justice would be sufficiently met if the plaintiff, respondent No.1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 1,80,000 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26-2-2018).
10. On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court.
With the above observations and directions the civil petition for leave to appeal is disposed of.
