Order On 31.8.1991, the vessel M.V. DIGNITY was arrested pursuant to an order passed by this court in this suit at the instance of the plaintiff. The vessel was released subject to the Jordan Shipping S.A. (referred to as the applicant) furnishing a bank guarantee for Rs.22,48,003.06 in favour of the Registrar (O.S.) of this Court. The guarantee was duly furnished. The applicant now claims that the suit should be dismissed and the bank guarantee should be discharged. 2. The suit has been filed by way of an action in rem in this Court's Admiralty Jurisdiction. The plaintiff's claim in the suit is on account of the price of bunkers supplied by the plaintiff between 2-5-90 and 19-9-90 to Neptune Shipping Co. Ltd. as agents of the shipowners. The applicant claims that it had purchased the vessel on 21-11-90 from the original owner of the vessel namely Branjo Shipping S.A. It is stated that the plaintiff had been put on notice of this change of ownership of the vessel as far back as on 16.01.91, when in answer to a demand from the plaintiff for payment of its claim the applicant's agent had stated that the vessel had been sold since the date of the supply in question. 3. It is stated that the plaintiff's claim in this suit was for monies payable in respect of necessaries and that the plaintiff had proceeded to arrest the ship on the basis that by supplying necessaries, the vessel had become subject to a maritime lien. It is submitted that the supply of necessaries did not result in the creation of any maritime lien in respect of the vessel. Reliance has been placed on the following decisions in this context: LAWS & OTHERS & SMITH: THE "RIO TINTO" reported in (1884) 9 AC 356; SHELL OIL CO vs. THE SHIP "LASTRIGONI" reported in (1974) 3 ALR 399; MOHAMMED SALEH BEHBEHANI & CO. vs. BHOJA TRADER reported in (1983) 2 CLJ 334; The "ANEROID" (1877-78) II P.D. 189 and a passage in THOMAS on MARITIME LIENS at pages 13 and 17. It is then submitted that the change of ownership of the vessel resulted in the loss of the plaintiff's right to arrest the vessel and to realise its claim from its sale. 4. It is then submitted that the change of ownership of the vessel resulted in the loss of the plaintiff's right to arrest the vessel and to realise its claim from its sale. 4. It is then submitted that the suit as framed was defective as the plaintiff had not identified the person against whom it sought to realise its claim. The applicant finally submitted that in any event the bank guarantee should be discharged as the plaintiff had deliberately suppressed from this court that there had been a change of ownership in the vessel at the time of obtaining the warrant of arrest on 31.8.91. 5. On behalf of the respondent it has been submitted that there was no dispute that the claim of the plaintiff being based on supply of necessaries would be enforceable against the owner/charter of the ship and not directly against the ship itself except if the owner/charter continued to retain an interest in the ship. It is stated that in fact there had been no change of ownership of the vessel. It is argued that the documents which had been relied upon by the applicant did not establish a sale. There was neither any bill of sale nor any proof of payment of consideration. 6. The plaintiff further submitted that the supply of necessaries had been made to Neptun Shipping Co. Ltd. (hereinafter referred to as 'Neptun') the bare boat charters of the vessel. The original owners of the vessel had entered into a bare boat charter for four years. The period of the charter would expire only on 11th March 1994. The applicant had therefore, purchased the vessel subject to the bare boat charter in favour of Neptun and there was no evidence to the contrary. It is submitted that a bare boat charter is for all intents and purposes the owner of the vessel. It is contended that the plaintiff could enforce this right to receive payment from Neptun in enforcement of statutory right of action in rem under s. 5 of the Admiralty Courts Act 1861. Reliance has been placed on the HEINRICH BJORN (1885) 10 P. 44=(1886) 11 AC 270; The "MONICA S" (1967) 2 LLR 113; "THE ZAFIRO" reported in (1959) 1 LLR 259; THE HOPPER NO. 66 reported in Maritime Laws Cases 492; SCRUTTON ON CHARTER PARTIES (19th Edn.) page 47; and WILFORD ON TIME CHARTERS. 7. Reliance has been placed on the HEINRICH BJORN (1885) 10 P. 44=(1886) 11 AC 270; The "MONICA S" (1967) 2 LLR 113; "THE ZAFIRO" reported in (1959) 1 LLR 259; THE HOPPER NO. 66 reported in Maritime Laws Cases 492; SCRUTTON ON CHARTER PARTIES (19th Edn.) page 47; and WILFORD ON TIME CHARTERS. 7. It is submitted that in any event, the issue as to the change of ownership could not be taken to be an admitted fact as was the case in almost all the decisions relied upon by the applicant. The matter, therefore, could not be decided by way of demurrer, but should be left to be tried along with the suit. 8. Before considering the relative merits of the contentions raised, it IS necessary to point out that the plaintiff has come forward with two distinct and contrary cases at different stages of the proceeding. 9. In the plaint the case is that the plaintiff had supplied bunkers "at the request of the vessel and/or the agent" namely Neptun. There is no question of the vessel making any request for supply, of bunkers. The only reasonable construction on this pleading would be that the owners of the ship had asked the plaintiff to supply the bunkers. Presumably the plaintiff meant that Neptun was the agent of the owners of the ship. The supply of the oil was made in 1990. The owners of the ship in 1990 was Branjo Shipping Co SA. It is stated that the supplies were made 3n the credit of the vessel (vide para 11 of the plaint). The intention behind this averment is clearly a pleading of a lien on the vessel itself. There is no mention of a change of ownership of the vessel between the date of supply and the date of the institution of the suit in the plaint. 10. The plaintiff's rather abstruse pleading in the plaint has been clarified in its affidavit in opposition to the present application. The plaintiff has in its affidavit in opposition denied that the ship was at the relevant time under the control of Neptun. It has been stated that Neptun was acting on behalf of the erstwhile owners as the agent of the disclosed principal namely, Branjo Shipping Co. S.A. when the contract for sale and delivery of bunkers was entered into between Neptun and the plaintiff. It has been stated that Neptun was acting on behalf of the erstwhile owners as the agent of the disclosed principal namely, Branjo Shipping Co. S.A. when the contract for sale and delivery of bunkers was entered into between Neptun and the plaintiff. Referring to its claim in the plaint, the plaintiff has stated in its affidavit "all the disclosed documents would go to show that Neptun Shipping Co. Ltd., had acted merely as agent of the ship owners and/or the disclosed agent and not in any other capacity as alleged or at all." 11. It has been repeatedly averred that the claim of the plaintiff in the suit was in enforcement of a maritime lien and that the applicant had purchased the vessel subject to such maritime lien. All allegations to the contrary have been denied. 12. In the affidavit in opposition the fact of sale has been admitted by the plaintiff but the sale has been impugned as being fraudulent. 13. At the hearing the plaintiff has jettisioned the case by it whether in the plaint or in its affidavit in opposition and has claimed that the supply was made to Neptun as the bare boat charterer and consequently the owner of the ship within the meaning of section 5 of the Admiralty Court Act, 1861. At the hearing also the plaintiff did not dispute that it had received an intimation in early 1991 of the change of ownership of the vessel but it was contended that the sale was no sale at all on the ground of improper documentation. No argument was advanced on the grounds of fraud as taken in the affidavit in opposition. 14. In my view the plaintiff cannot be permitted to jettision the case made out in the plaint and affidavit in opposition at the hearing. The court will have to determine the issues raised by the applicant on the case made out in the plaint itself. 15. And the case made out in the plaint is simply a case of enforcement of a maritime lien by reason of necessaries supplied. 16. It has been established by a wealth of decisions that the supply of necessaries does not create a maritime lien. Indeed the point was conceded by the counsel for the plaintiff at the hearing. 15. And the case made out in the plaint is simply a case of enforcement of a maritime lien by reason of necessaries supplied. 16. It has been established by a wealth of decisions that the supply of necessaries does not create a maritime lien. Indeed the point was conceded by the counsel for the plaintiff at the hearing. It is only necessary to refer to two authorities on the point to emphasize the fact that this Court does not base its conclusion on the concession of the plaintiff's counsel but on the authorities cited. 17. It is not disputed that the jurisdiction of this court is governed by the Admiralty Court Act 1861 (Imp). Section 5 of the 1861 Act provides: "5. The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recover twenty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court." 18. In the case of Laws and others and Smith: the "Rio Tinto": 9 PD 356, the plaintiff had supplied necessaries to the vessel. The Trial Court held that the necessaries were supplied on the credit of the vessel and that the plaintiff had a right to a maritime lien and that, therefore, in spite of the fact that the vessel had been transferred subsequent to the supply of necessaries, the ship was liable. Sir James Hannen who delivered the opinion of the Privy Council held that the phrase "the court shall have jurisdiction" simply gave the Court jurisdiction but did not create any lien. A distinction was drawn between a provision for proceedings by arrest of the ship and the express creation of a lien. The Court held: "The Admiralty Court Act, 1861 (24 Vict. c. 10) and the decisions upon it must next be considered. A distinction was drawn between a provision for proceedings by arrest of the ship and the express creation of a lien. The Court held: "The Admiralty Court Act, 1861 (24 Vict. c. 10) and the decisions upon it must next be considered. By the 5th section it is enacted that the High Court shall have jurisdiction over a claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court that, at the time of the institution of the cause, any owner or part owner of the ship is domiciled in England or Wales. The words 'the High Court of Admiralty shall have jurisdiction, 'mean only what they purport to say, neither more nor less, that is, that the court shall take judicial cognizance of the cases provided for. The conclusion [is] that there is nothing from which it can be inferred that by the use of the words "the court shall have jurisdiction" the Legislature intended to create a maritime lien with respect necessaries supplied within the possession." 19. In Shell Oil Co. vs. The Ship "Lastrigoni" 3 ALR 399 the plaintiff had filed a suit for enforcement of the claim on the ground of bunkers provided by the plaintiff under a contract between the plaintiff and the agents of the time charterer. The contract provided that the sale and delivery of inter alia necessaries would be made on the faith and credit of the vessel. The arguments before the Court were that the supply of fuel itself created maritime lien to which the ship was subject and which could be enforced by an action in rem in Admiralty. The second was that, in the circumstances, an action in rem lay notwithstanding the absence of any contractual liability on the part of the owners to pay for the bunkers supplied and that this was so by virtue of section 6 of the Admiralty Court Act 1840 (Imp), and section 5 of the Admiralty Court Act 1861 (Imp), either with or without the aid of cl. 6.4 of the Bunker Fuel Oil Contract. 6.4 of the Bunker Fuel Oil Contract. Menzies, J. held: "The matter was, I think, put at rest by the decision of the Privy Council in the Rio Tinto (1884) 9 APP Cas 356, by which it was decided that no maritime lien attaches to a ship in respect of coals or other necessaries supplied to it." 20. The Court also held that the phrase "for necessaries supplied to a ship" meant supply for the owner. Where the supplies had been made to a time charterer and not to the owner the phrase did not apply and the Court had no jurisdiction to try the suit in its Admiralty jurisdiction. 21. Therefore, that apart of the case of the plaintiff by which a maritime lien has been claimed on the vessel cannot be sustained. 22. This does not mean that the Court cannot entertain the claim of a necessaries mean. Such a claim may be entertained under section 5 of the 1861 Act as an action to secure a debt out of the property of the debtor. This proceeds on the assumption that the debtor is the owner of the property or res out of the sale proceeds of which the claimant wishes the claim to be satisfied. The right of the necessaries mean under section 5 of the 1861 Act is what is known as a statutory right of action in rem. 23. Whereas a maritime lien attaches to the res and travels with it and may be enforced against a subsequent purchaser of the res, a statutory right of action in rem is defeated by a change of ownership. This latter principle follows from the nature of the right described in the preceding paragraph. 24. This view of the law is supported by a catena of decisions. 25. The decision in "the Aneroid II PD 189 was on a demurrer to a statement of claim. The claim of the plaintiff was an action of necessaries in rem. Prior to the institution of the suit the vessel had been transferred to the' defendant. The defendant had knowledge and notice of the plaintiff's claim. The Court found for the demurrer on the ground that the plaintiff had no lien on the ship. The ownership of the ship having been transferred, it was held that the plaintiff was not entitled to be paid out of the res. The defendant had knowledge and notice of the plaintiff's claim. The Court found for the demurrer on the ground that the plaintiff had no lien on the ship. The ownership of the ship having been transferred, it was held that the plaintiff was not entitled to be paid out of the res. The court also held that the fact that the defendant, being the transferee had notice of the plaintiff's claim prior to the purchase could not create a lien. 26. In the Heinrich Bjorn X PD 44 an action was brought in rem by a plaintiff for supply for necessaries. It was not disputed that before the action was brought the part owner of the ship (which was a company) went into liquidation and the owners' interest in the ship had been sold to the defendants. The Court of Appeal held that the plaintiff only had a right against the property of the person who owed the debt for necessaries. This right could not be enforced against the ship which no longer belonged to the debtor. The Court of Appeal also negatived the contention the defendants had purchased the vessel with the notice of the plaintiff's claim and that a lien was created by such notice, on the ship. The decision of the Court of Appeal was affirmed by the House of Lords in appeal in C.J. Northcote and the Owners of the Henrich Bjorn XI PD 270. Lord Bramwell clearly brought out the distinction between the jurisdiction to entertain a claim for necessaries and a maritime lien. It was made clear that the jurisdiction granted to determine the demand did not mean that a lien was created in respect of such demand. It may be noted that the House of Lords also approved the decision in the "Rio Tinto" (supra) and entirely adopted the reasoning in that case and held that it convincingly decided that there was no maritime lien for necessaries. 27. As far as this Court is concerned in the case of Mohammed Saleh Behbehani and Co. vs. Owners and parties interested in the vessel M.V. "Motis" also known as "Broja Trader": 1981 (2) CLJ 129; D.K. Sen J. (as His Lordship then was) had to consider a claim by a plaintiff for damages on account of breach of a charterparty and for the price for the supply of necessaries. The Vessel was arrested. vs. Owners and parties interested in the vessel M.V. "Motis" also known as "Broja Trader": 1981 (2) CLJ 129; D.K. Sen J. (as His Lordship then was) had to consider a claim by a plaintiff for damages on account of breach of a charterparty and for the price for the supply of necessaries. The Vessel was arrested. On the application of persons claiming to be transferees of the vessel for release of the vessel the Court held that the case of the plaintiff arising out of breach of charter party could not be pursued in the Admiralty jurisdiction of the Court. With regard to the claim on account of necessaries, it was held that in view of the change of ownership of the vessel prior to the institution of the suit, the plaintiff had no lien over the ship. However, the subsequent owners being willing to furnish security for the amount claimed by the plaintiff by reason of supply of diesel oil to the vessel which was found in the vessel when the same was purchased, the Court directed the release of the vessel subject to the furnishing of such security. Incidentally, the Court held that even if a vessel is arrested by the Court in its admiralty jurisdiction the same could be directed to be released subsequently even without the furnishing of any security. 28. The decision of D.K. Sen J. was affirmed in appeal by the Division Bench of this Court [Mohammed Saleh Behbehani & Company vs. Bhoja Trader: 1983 (2) CLJ 334]. 29. The decisions cited by the plaintiff do not assist it. In the case of "The Zafiro" the owner of the ship was a company. Pursuant to a creditor's resolution that the company be wound up, a liquidator was appointed over the assets of the company. Prior to the resolution being passed the necessaries man had filed an action for enforcing its claim against the ship. The Court held that the action in rem of the plaintiff in that case was very much in existence and was the owner of the ship. 30. In the case of the "Monica S" (supra) the only question to which the Court addressed itself was whether the statutory lien created by an action in rem arose when the writ was issued or when the arrest of the vessel was in fact made. 30. In the case of the "Monica S" (supra) the only question to which the Court addressed itself was whether the statutory lien created by an action in rem arose when the writ was issued or when the arrest of the vessel was in fact made. In that case the transfer of the ship had been made after the writ had been issued but before the arrest was effected. The Court held that this transfer was not sufficient to defeat the action of the plaintiff. It was not in dispute in that case that the transfer of a ship prior to the institution of the suit would defeat the plaintiff's claim. 31. As already noted Henrich Bjorn (supra) relied upon by the plaintiff is an authority for the proposition that the claim of a necessaries man cannot be enforced against the vessel either by way of a maritime lien or after its transfer to a third party. 32. The supply of the bunkers in this case was in 1990 when the ship was owned by Branjo Shipping S.A. The plaintiff's claim both in the plaint and affidavit in opposition is that the supply had been made to Branjo through its agent Neptun. 33. In the plaint no challenge has been thrown to the change of ownership of the vessel subsequent to the supply and prior to the institution of the suit even though the plaintiff admittedly had been put on notice of the sale at least 8 months prior to the filing of the suit. 34. As the sale had also not been challenged in the affidavit in opposition and it was only at the hearing that the plaintiff questioned the sale, I gave the applicant an opportunity to produce any other document it could, to establish the transfer of the ownership of the vessel. Purusant to such leave, the applicant produced a xeroxed copy of the Bill of Sale and Acceptance of Sale dated 3rd December 1990 duly notarised in London by a Notary Public, as well as a Certificate of Registration granted by the Panama Merchant Marine Registry dated 12th April 1991. Purusant to such leave, the applicant produced a xeroxed copy of the Bill of Sale and Acceptance of Sale dated 3rd December 1990 duly notarised in London by a Notary Public, as well as a Certificate of Registration granted by the Panama Merchant Marine Registry dated 12th April 1991. The first document, which has been described as "the most vital document" by the plaintiff in its written notes of arguments, shows that Branjo Shipping S.A. sold the vessel for two million two hundred thousand U.S. Dollars to Jordan Shepping S.A. free from liens, debts, maritime claims or any incumbrances. The second document shows that the registration of the ship has been effected in favour of the applicant. Copies of the documents were filed before this court by the applicant with notice to and after serving copies on the plaintiff. Therefore even assuming that the Court were minded to allow the plaintiff or raise a plea inconsistent with its case as made out in the plaint and affidavit in opposition, (which it is not), in my view, sufficient documentation has been produced by the applicant to prove that the transfer of the vessel prior to the institution of the suit had in fact taken place. 35. The new case in the affidavit in opposition with regard to the sale is unacceptable. The fact of sale is admitted in the affidavit but it is stated that the sale is vitiated by fraud. 36. In my view, the particulars of fraud even if established would not amount to anything of the kind. The first ground is that the sale was fraudulent as it had taken place without notifying or making provision for payment to the plaintiff. As the supply of necessaries had not created a maritime lien and did not attach to the ship there was no need, when transferring the vessel, to provide for any personal claim that a third party may have against the original owner. 37. The second ground of fraud relates to the fact that the affairs of the vessel both before and after the purchase were being managed by M/s. Commercial Leasing/Trading S.A. and that one Mr. Halsted of M/s. Commercial Leasing/Trading Company was aware of the sale of bunkers to the ship and that the sale had been resorted to defeat the right of the plaintiff. Halsted of M/s. Commercial Leasing/Trading Company was aware of the sale of bunkers to the ship and that the sale had been resorted to defeat the right of the plaintiff. The mere fact that the 'affairs of the ship' may have been managed both for the erstwhile and the present owners by the same concern cannot give rise to an inference, even prima facie, of fraud. As for defeating the right of the plaintiff there is no averment that the applicant had any notices of the plaintiff's claim. Furthermore in both "The Aneroid" (supra) and 'The Heinrich Bjorn" (supra) the Courts held that the right of a subsequent purchaser of the vessel even with notice of such a claim was not affected, nor was any right, legal or equitable, created by such notice in relation to the vessel. 38. The last ground of fraud appears to be wholly frivolous. The ground is reproduced verbatim. “The sale and purchase of the said vessel by one Panamaniam Co. in favour of another Panamaniam Co. is fitted (sic) with deception............” 39. There is no principle either in logic or authority that sales by one Panamaniam Company to another are necessarily fraudulent transactions. 40. In any event, the plaintiff admittedly knew about the sale in January, 1991 but it has not challenged the sale in the plaint and cannot be permitted to do so only in answer to the applicant's application. Additionally, this application was made in December, 1991. More than a year has passed. No steps have even been taken by the plaintiff to amend the plaint challenging the sale till today. 41. The challenge to the sale itself at the hearing cannot be permitted for the reasons already stated. 42. The plaintiff has also made an elaborate argument to contend that Neptun was the bare boat charterer and therefore the ostensible owner of the ship. This was neither the case in the affidavit in opposition nor in the plaint. The plaintiff has urged the Court to ignore the affidavit on the ground that it proceeded on a misstatement of the law. Unfortunately, the statements in the affidavit are not mere submissions of law but averments of fact. This was neither the case in the affidavit in opposition nor in the plaint. The plaintiff has urged the Court to ignore the affidavit on the ground that it proceeded on a misstatement of the law. Unfortunately, the statements in the affidavit are not mere submissions of law but averments of fact. These include repeated assertions that Neptun was the agent of the owner, and that the supply had been made to Neptun who received it as the agent of its disclosed principal, namely, Branjo Shipping S.A., the erstwhile owner. It is thus not necessary to enter into a wholly academic discussion whether a bare boat charterer is the owner of the ship, or the further question whether the supply of necessaries to a bare boat charterer would create a right in the supplier which could be enforced by way of an action against the ship or whether the bare boat charter could be said to have been terminated in the facts of this case. 43. Therefore, on the basis of the authorities, it must be held that the sale of the vessel to the applicant subsequent to the supplies made by the plaintiff and much prior to the institution of suit has defeated the right of the plaintiff to seek to recover its claim against the erstwhile owners of the vessel from the vessel itself. 44. The result is that the plaintiff had no right to have the vessel arrested when it did. The application must therefore be allowed. 45. There is another reason why this application must be allowed. The order of arrest was obtained on the submission that the plaintiff had a maritime lien on the ship. This is clear from the order dated 31.8.91. This case has now been abandoned by the plaintiff. In addition the plaintiff had suppressed a very material fact from this Court at the time of obtaining the order of arrest, viz., the fact of the sale of the vessel prior to the institution of the suit. 46. That the plaintiff knew of the sale is admitted. There is no explanation why the fact of change of ownership of the vessel was not referred to in the plaint or drawn to the Court's attention when the order of arrest was obtained. 46. That the plaintiff knew of the sale is admitted. There is no explanation why the fact of change of ownership of the vessel was not referred to in the plaint or drawn to the Court's attention when the order of arrest was obtained. Clearly it was a material fact particularly when the plaintiff, at the hearing at least, contended that it was not claiming a maritime lien, but a right in personam enforceable by an actino in rem. That the person against whom the right was claimed was no longer the owner of the vessel was certainly a very relevant fact to determine whether the plaintiff could enforce such right against the res. 47. The suit has been filed as an action in rem and cannot survive for the reasons stated, against the vessel. The claim, if any, of the plaintiff is a right in personam against the erstwhile owners of the vessel. 48. Accordingly the suit is dismissed and the Bank Guarantee furnished by the applicant is directed to be released and discharged. The plaintiff will pay the applicant the costs of this application assessed at 60 G.Ms. Prayer for stay of this judgment is made which is granted for a period of two weeks from to day. Let xerox copy of this judgment be given to the partner upon their undertaking to apply for the certified copy of the judgment and on payment of normal charges. Suit dismissed; Bank Guarantee furnished directed to be released and discharged; the plaintiff to pay cost of the application assessed at 60 G.Ms.