Judgment :- Patherya J. In an admiralty suit for sums on account of damage and loss an interim application has been filed for arrest of vessel M.V. Devi Glory-1. The case of the petitioner is that its vessel M.V S.B Queen was anchored at Chittagong on and from 17th May, 2010 for discharging of cargo. Such discharge commenced from 19th May, 2010. On 29th May, 2010 vessel M.V. Devi Glory-1 collided with M.V. Cebu Star. The chain of the said two vessels got entangled and hit M.V. S.B Queen. This resulted in damage to the vessel of the petitioner for which damage claim the admiralty suit has been filed and arrest is sought of the vessel M.V. Devi Glory-1. From the Radiolog of the Chittagong Port Authorities, it will be clear that the said two vessels had lost control of the engine and fallen on the petitioner’s vessel. The statement of Chittagong Port Authorities on which the owners of the vessel seek to rely is dated 3rd November, 2010 whereas the Radiolog relied on by the petitioner is contemporaneous to the date of collision. On 2nd November, 2010 certain particulars were sought by the advocate of the owners and reply was given on the same day. The said document lays emphasis on reporting of the incident to the principal officer and as no such report was made with the authorities concerned the claim of damages cannot be substantiated. The said document is a suspect document and ought not to be relied upon. In fact on 15th June, 2010 intimation of damage along with the note of protest was forwarded to the principal officer, Mercantile Marine Department. The same was also received by the Authorities. From the statement of collision damage to the petitioner’s vessel by M.V. Devi Glory-1 approaching the vessel of the owners by dragging anchors is evident. This will also be evident from the note of protest of M.V. Cebu Star dated 30th May, 2010. At the time of survey the representative of the defendant was present. Therefore, the damage caused to the vessel of the plaintiff cannot be disputed. Accordingly, on the basis of the Arrest convention of 1952 the petitioner is entitled to confirmation of the order of arrest which has been passed on 14th September, 2010 and has been continued. Reliance is placed on AIR 1996 SC 516 ; AIR 1999 Cal. Therefore, the damage caused to the vessel of the plaintiff cannot be disputed. Accordingly, on the basis of the Arrest convention of 1952 the petitioner is entitled to confirmation of the order of arrest which has been passed on 14th September, 2010 and has been continued. Reliance is placed on AIR 1996 SC 516 ; AIR 1999 Cal. 64 ; 1912 Appeal Cases 634; (1955) 1 LLR 376 and 1892 Probate & Admiralty Cases 179. Even if exceptional precaution was taken to prevent dragging it was not possible to prevent dragging as the engines could not be started. By a letter dated 1st June, 2010 a request was made to provide tug boats to free the anchor and anchor chains from the propeller. Opposing the said application the owners of vessel M.V. Devi Glory-1 submits that no case has been made out by the petitioner in its affidavit of arrest. The case made out is that the vessel M.V. Devi Glory-1 and M.V. Cebu Star were entangled with each other and the said two vessels approached the petitioner’s vessel at rapid speed. No specific case of the defendant’s vessel colliding with the petitioner’s vessel has been made out. Therefore, no case of damages caused to the defendant’s vessel has been prima facie made out to warrant of arrest. It is only on 5th July, 2010 the note of protest by the master was forwarded to the authorities. Two notes of protest were filed by the petitioners – one exclusively against the defendant’s vessel and the second against both the vessels of the defendant and M.V. Cebu Star. The statement of facts which was forwarded on 5th July, 2010 defers from that which was submitted on 2nd June, 2010. No damage is evidenced in the statement dated 2nd June, 2010 and all tanks were found in normal condition. The reason for damage defers in the statements annexed to the notarised certificate dated 5th July, 2010 and the attested statement dated 2nd June, 2010. Under Section 415(1)(a) of the Merchant Shipping Ordinance, 1983 a shipping casualty is deemed to occur when a ship is materially damaged and notice in this regard is given to the principal officer. On receipt of such shipping casualty under Section 416 of the Merchant Shipping Ordnance, 1983 a preliminary enquiry is to be held with regard to the said casualty. On receipt of such shipping casualty under Section 416 of the Merchant Shipping Ordnance, 1983 a preliminary enquiry is to be held with regard to the said casualty. In the instant case, there has been no compliance with Section 415(1)(a) or Section 416. Reliance is placed on 1871 LLyods Law Report 212. As anchorage in the Chittagong Port area is in loose soil, therefore, dragging of anchors when the wind is strong is normal. The existence of strong current and dragging of anchors will also be evident from the note of protest filed by M.V. Cebu Star. Nowhere has it been pleaded that it was not an “inevitable accident”. In fact the particulars of collision do not evidence the aforesaid. There was an omission on the part of the master to avoid collision and the collision occurred due to laches on the part of the master of the petitioner’s vessel. As held in AIR 1994 SC 853 , as the owner has come to Court with unclean hands the order of arrest be vacated. In reply, counsel for the petitioner submits that siltation being the cause of dragging of anchor is not evidenced. On the principle that the petitioner’s engine ought to have been ready the defendant’s vessel also should have been operational. Having considered the submission of the parties, it appears that damage caused to the petitioner’s vessel is undisputed. At the time of survey on 31st May, 2010 the representatives of the owner and also the representatives of M.V. Cebu Star were present and the damage was inspected in their presence. Therefore, the only issue to be considered is whether such damage could have been avoided and if not whether the defendant can be made liable and thereby its vessel arrested. M.V. Devi Glory-1 dragged anchor and collided with M.V. Cebu Star. As the anchor chains of both the said vessels got entangled the said two vessels collided with the vessel of the petitioner. The collision occurred on 30th May, 2010 at 00.45 hrs. A note of protest dated 30th May, 2010 along with the Master’s Statement of Facts of Collision has been notarized on 5th July, 2010. This Note of Protest of 30th May, 2010 along with the Master’s Statement of Facts of Collision attested on 2nd June, 2010 was sent by the petitioner to its agent. A note of protest dated 30th May, 2010 along with the Master’s Statement of Facts of Collision has been notarized on 5th July, 2010. This Note of Protest of 30th May, 2010 along with the Master’s Statement of Facts of Collision attested on 2nd June, 2010 was sent by the petitioner to its agent. On a comparison of the two sets of statements of facts it appears that the facts set out in the Statement enclosed with the Notarized Certificate of 5th July, 2010 is more detailed than that attested on 2nd June, 2010. From a reading of the Statement of 2nd June, 2010 it will appear that discharge of cargo was discontinued only at 00.40 hrs while the statement appended to the July Certificate shows that cargo discharge was stopped at 00.15 hrs. Similarly, at 00.19 hrs. Cebu Star’s captain was contacted over Radio Ch/65A with a request to full A’hed Eng when he replied “Can’t using Eng Devi Glory-I collided and crossed Her’s Bow already.” This is missing from the statement attested on 2nd June, 2010. The Statement of Facts attested on 2nd June, 2010 is more contemporaneous to the incident, therefore, prima facie the facts stated therein ought to be accepted at this stage and on an analysis of the said Statement of Facts the collision was not one that was inevitable. Nowhere has it been pleaded that the time was insufficient to prevent collision or that the collision was inevitable. The burden of “inevitable accident” is to be discharged by the plaintiff and from a reading of the particulars of the defendant’s negligent and wrongful acts, nowhere has “inevitable accident” been pleaded. No notice issued under Section 415 of the Bangladesh Maritime Laws has been produced and no inquiry has been held under Section 416 of the said Laws. Section 415(4) of the said Laws imposes penalty for non-filing of Notice. No such penal action has also been taken. The letter of 1st June, 2010 to the Marine Department, Chittagong is a request to supply Tugs for towing the vessel to Singapore. The Note of Protest attested on 2nd June, 2010 is directed against both M.V. Devi Glory-I and M.V. Cebu Star while that annexed to the notarized certificate is directed against only M.V. Devi Glory-I. In spite of the aforesaid it cannot be concluded that the plaintiff’s case is hopeless beyond doubt. The Note of Protest attested on 2nd June, 2010 is directed against both M.V. Devi Glory-I and M.V. Cebu Star while that annexed to the notarized certificate is directed against only M.V. Devi Glory-I. In spite of the aforesaid it cannot be concluded that the plaintiff’s case is hopeless beyond doubt. There is every possibility of documents being produced and evidence being given at the Trial which may warrant a decree being passed in favour of the petitioner. Therefore, the Order of Arrest is modified and the defendant directed to furnish security for Rs.2 crores, in such form as is acceptable to the petitioner and subject to the satisfaction of the Registrar-in-Insolvency, High Court, Calcutta and upon such deposit M.V. Devi Glory-I be released from Arrest. Another reason for passing this order is that the defendant is a foreign company and its vessels may not enter the territorial waters of India. In the event, a decree is passed, the same will be rendered infructuous and only a paper decree. The laws of the land in which the defendant’s vessel is registered may also not make execution of decree possible. In view of the aforesaid, G.A 2965 of 2010 and G.A 3608 of 2010 are disposed of.