JUDGMENT This Notice of Motion is taken out by the Defendants for (a) dismissal of the Suit on the ground that the Plaintiff has no title to sue; (b) return of security provided by Defendant No. 2 on behalf of Defendant No.3 - vessel and (c) in the alternative, claim Nos. 2, 3 and 4 in the Particulars of Claim at Exhibit 'Q' to the Plaint be struck of and the security furnished be accordingly reduced. 2. Heard the learned counsel for the parties. Re: (a) Dismissal of the Suit on ground Plaintiff has not title to sue: 3. It is the case of the Defendants that the Plaintiff cannot maintain this action in view of the provisions of Section 1 of the Bills of Lading Act, 1856 (hereinafter referred to as 'the said Act'). The Defendants' counsel did not argue the ground of exclusive jurisdiction clause raised in the affidavit in support. 4. According to the Defendants, since the Plaintiff had sold the goods to the buyers, endorsed the Suit Bill of Lading and the buyers had taken delivery of the container by surrendering the Bill of Lading, if at all anybody can maintain any action it will only be the endorsee in view of Section 1 of the said Act. The counsel also invited this Court's attention to Exhibit 'A' to the Plaint which is the alleged Sale Contract between the Plaintiff and the buyer of the Cargo and that it provides for payments for the goods to be made by 100% Letter of Credit ('L/C') payable at sight. 5. In reply, it is the Plaintiff's case that he is an unpaid seller. It was submitted that even though Exhibit 'A' to the Plaint provides for 100% payment by Letter of Credit payable at sight, the Plaintiff has not been paid and the property was still with the Shipper. The Plaintiff has also averred in paragraph 13 of the Plaint that the Plaintiff has not been paid Rs. 6,07,746/- the value of the Cargo. It is the Plaintiff's case that in any case, he is the Shipper with whom the Contract of Carriage has been entered into and he could maintain this action. The Plaintiff has also averred in paragraph 13 of the Plaint that the Plaintiff has not been paid Rs. 6,07,746/- the value of the Cargo. It is the Plaintiff's case that in any case, he is the Shipper with whom the Contract of Carriage has been entered into and he could maintain this action. The counsel further submitted that the Plaintiff will be able to prove their case in Trial and at this stage without giving the Plaintiff an opportunity to lead evidence to prove that property was still with the Plaintiff despite endorsing the bill of lading and that they have not been paid, the Plaintiff cannot be non-suited. 6. Section 1 of the said Act, provides as under : “1. Rights under bills of lading to vest in consignee or endorsee.- Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." 7. Two significant features arise out of Section 1 of the said Act. They are (a) that the passing of contractual rights is linked to the transfer of property and (b) that an imposition of contractual liabilities on the consignee or endorsee is linked to, and occurs at the time on, the acquisition by that person of contractual rights. 8. The consequence of the first of these points is that a person who had bought goods from the Shipper would not acquire rights under the Bill of Lading Contract, even though property had at some stage passed to him, or where it had passed to him after and not by "a reason of', such transfer, where property passed independently of the consignment or endorsement. It therefore sometimes would happen that the buyer acquired no contractual rights against the Carrier in consequence of the transfer of the Bill of Lading (The Defini (1990)1 Lloyds Rep 252) 9. It therefore sometimes would happen that the buyer acquired no contractual rights against the Carrier in consequence of the transfer of the Bill of Lading (The Defini (1990)1 Lloyds Rep 252) 9. Therefore, this Section 1 of the said Act, provides for those who, other than the person with whom the contract contained in the bill of lading was made, can sue and be sued as if the contract contained in the bill of lading has been made with that person. Bill of lading is an evidence of contract that has been entered into between a Shipper and the carrier. Section 1 of the said Act only provides that if anyone other than a Shipper has to sue under the bill of lading, such a person should be either a consignee or an endorsee of the bill of lading to whom the property in the goods therein mentioned has passed. It also provides how the property should have passed. It says that the property should have passed "upon or by reason of such consignment or endorsement". 10. Such person to whom the property in the goods has passed upon or by reason of such endorsement shall have transferred to and vested in him all rights of Suit as if the contract contained in the bill of lading had been made with himself. Therefore, the Shipper can certainly maintain an action until the property in the goods has been transferred and vested in the endorsee upon or by reason of such endorsement. Admittedly, the Plaintiff was the Shipper and will be entitled to maintain this action unless the Defendants are able to show that the property in the goods had been transferred and vested in the endorsee upon or by reason of such endorsement. This can be decided only after the Trial and not at this interim stage and hence the Plaintiff cannot be non-suited at this stage. Re : Extent of Security to be constituted till the disposal of the Suit: 11. Mr.Pratap, the senior counsel for the Defendants argued that the Plaintiff cannot maintain this action and even if it is held he can, is not entitled to any security in view of the express disclaimer in the bill of lading :".. Re : Extent of Security to be constituted till the disposal of the Suit: 11. Mr.Pratap, the senior counsel for the Defendants argued that the Plaintiff cannot maintain this action and even if it is held he can, is not entitled to any security in view of the express disclaimer in the bill of lading :".. Perishable Cargo shipped at Shipper's risk, ship not responsible for decay" and this Cargo which was in FCL container was Indian Fresh Banana and was hence perishable and in view of the disclaimer, the Defendants cannot be held liable and hence the Suit should be dismissed and the entire security be returned. 12. Mr.Pratap further submitted that it is the Plaintiff's own case as could be seen from Exhibits 'E' and 'F' to the Plaint that the container arrived at Jeddah, the discharge port, on 17th September 2009 and was moved to the Receiver's cold storage on 23rd September 2009, a clear 7 days later. Therefore, if at all the Cargo of bananas could have got spoiled, it could have happened only after the container was discharged from the vessel and hence the Defendants cannot be liable at all. He also referred to Exhibit L' to the Plaint, the daily temperature log of reefer containers issued by the Defendants' representatives to show that the suit container had maintained a temperature of + 13.50 0C as required to be maintained. The bill of lading provides "Minimum Temp: + 13.5 0C. Maximum Temp : 13.5 0C”. 13. The learned counsel for the Defendants also argued in the alternative that item Nos. 2, 3 and 4 in the Particulars of Claim at Exhibit 'Q' to the Plaint are all indirect and remote damages being claimed. Mr. Pratap submitted that it is the Plaintiff's claim that (a) Item No. 1 in the Particulars of Claim - Rs. 6,07,746/- relates to the alleged value of the Cargo in the container carried under the Suit Bill of Lading, (b) Item No. 2 in the Particulars of Claim - Rs. 11,82,720/-, represented the alleged value of Cargo contained in two other containers which were shipped by the Plaintiff but the buyers refused to pay in view of the damaged Cargo that arrived in the Suit Container, (c) Item No. 3 in the Particulars of Claim Rs. 11,82,720/-, represented the alleged value of Cargo contained in two other containers which were shipped by the Plaintiff but the buyers refused to pay in view of the damaged Cargo that arrived in the Suit Container, (c) Item No. 3 in the Particulars of Claim Rs. 1,72,000/- pertains to packing material of foam and polythene bags that the Plaintiff allegedly had purchased which could not be used due to the cancellation of contract by the buyers of the Cargo and (d) Item No. 4 - Rs.3,32,800/- pertains 6400 corrugated boxes that the Plaintiff allegedly had purchased and which could not be used in view of the cancellation of contract by the buyers of the Cargo. Mr. Pratap also submitted that there is no document covering these item Nos. 2, 3 and 4 of the Particulars of Claim annexed to the Plaint or even in the affidavit-in-reply to the Notice of Motion. Even the first notice that was sent by the Plaintiffs' Advocate which is at Exhibit 'M' to the Plaint mentions that the value of the Cargo was Rs. 6,07,746/- which represents item No.1 in the Particulars of Claim and the Plaintiff had claimed a sum of Rs. 10,00,000/- towards the damages, loss of reputation, interest, costs etc. This was repeated in the second notice from the Advocate dated 20th November 2009 which is at Exhibit 'O' to the Plaint. Therefore, as there is no prima-facie evidence whatsoever and is not reasonably arguable best case and it is hopeless and deserved to fail, the security should be reduced at least by the sum covered under item Nos.(2), (3) and (4) of the Particulars of Claim. Mr. Pratap also contended that in view of Section 73 of the Contract Act, a Carrier would be liable for Claims (2), (3) and (4) consequent to an alleged breach of contract provided the alleged loss was possibly within the knowledge of the parties as being likely to remit and the same could have been for seen at the time of entering into the contract, to wit, the Bill of Lading and the Plaint is totally silent on this aspect and the same is indirect and remote. 14. In response, the Plaintiff's counsel submitted that the Plaintiff will be able to prove his case in the Trial. 14. In response, the Plaintiff's counsel submitted that the Plaintiff will be able to prove his case in the Trial. He further submitted that the Defendants have as could be seen from Exhibit 'K' to the Plaint, refused to provide the temperature printed chart report. He also relied on Exhibit 'H' to the Plaint to state that temperature was not maintained as required. There are issues that will require evidence to be led and cannot be decided at the interim stage. 15. Admiralty law confers upon the claimant a right in-rem to proceed against the ship or Cargo as distinguished from a right in personam to proceed against the owner. The arrest of the ship is regarded as a mere procedure to obtain security to satisfy judgment. It is trite law that the Plaintiff is entitled to security to the extent of the reasonably best arguable case or prima-facie case. It is also well settled that even assuming the Plaintiff is entitled to insist for any security, it cannot be excessive in nature. Excessive demand for security should not be tolerated. The material placed on record should reveal strong prima- facie case in favour of the Plaintiff and only to that extent the security can be asked for. The Suit is for unliquidated damages and the claims made in the Suit have to be supported by documentary evidence and prima-facie established. 16. Standard and well recognized text books on Admiralty law have stated the law to be that excessive security will not be countenanced by a Court. In the George Gordon (1884) P.D. 46, the English Court has held that "parties should not arrest a ship for an exorbitant amount". The Court further held that "such a course the court will never sanction." 17. In the case of MOSCHANTHY (1971) 1 LLR 37 the Court held : "The other matter is this, It seems to me that the power to exact security in support of a claim in rem is a very strong power and it must not be used oppressively. Where there is a genuine dispute or discussion about the appropriate amount of security in a case, the Plaintiff ought to put his cards fairly on the table and explain to the defendant or his solicitors the grounds upon which he claims to exercise this strong power. Where there is a genuine dispute or discussion about the appropriate amount of security in a case, the Plaintiff ought to put his cards fairly on the table and explain to the defendant or his solicitors the grounds upon which he claims to exercise this strong power. In this case I am not satisfied that the Plaintiff or his solicitors did put their cards on the table with regard to amount. Indeed, I felt that they had to be extracted one by one from his Counsel during the hearing of the motion." (emphasis supplied) The Court accepted that to test whether there was a reasonably arguable best case, it would have to consider the Plaintiff's case on both liability as well as amount. The Court in fact went one step further and ordered the reduction of security claimed by the plaintiffs from Stg.45,000/- to Stg.35,000/- on the ground that the claim for loss of profits was a speculative character, involved imponderables and that a large discount should be made for that. 18. In the case of THE CLARABELLE (2002) 2 LLR 479, the Court in paragraph 12 Page 481 quoted MOSCHANTJIY as follows: "as was pointed out by Brandon J. in the Moschanthy decision itself(at p. 46) "It seems to me that the power to exact security in support of a claim in Rem is a very strong power and it must not be used oppressively. It should not be assumed that security at a Rolls Royce level is the inalienable right of a plaintiff simply because the Admiralty jurisdiction has been invoked." (emphasis supplied) In paragraph 28, page 483, the Court observed as follows: The Judge again relied upon an observation of Mr. Justice Brandon in The Moschanthy (see par.(11) viz. that the power to exact security is a very strong: power and must not be used oppressively. Again, with respect, we think a somewhat longer passage from another decision of Mr. Justice Brandon in The Polo II, (1977) 2 Lloyd's Rep. 115 at P.119, is worthy of note. There, speaking of his decision in The Moschanthy, Mr. Justice Brandon said: I took the view that the power of the Court to control security in that way was derived from the inherent jurisdiction of the Court to prevent any abuse of the process of the Court, or the use of court procedure in an oppressive way. There, speaking of his decision in The Moschanthy, Mr. Justice Brandon said: I took the view that the power of the Court to control security in that way was derived from the inherent jurisdiction of the Court to prevent any abuse of the process of the Court, or the use of court procedure in an oppressive way. As I pointed out in the case the power to arrest a ship is a very drastic power. And the power to insist that she shall remain under arrest unless security of a certain amount is given is equally a drastic power and my view, which I expressed in The Moschanthy and which I repeat now, is that that power must not be exercised oppressively, and if it is exercised oppressively then the Court can and should interfere to prevent conduct of that kind. At the same time the Court must make sure that the plaintiff is not left without sufficient security to cover his reasonably best arguable case. (emphasis supplied) 19. In the case of GULF VENTURE (1984) 2 LLR 445, the Court held: "When plaintiffs are entitled to keep a ship under arrest until her owners provide security for their claim, that security must be for such sum of money as represents their reasonably arguable best case, including interest, and their costs of the action. There is plenty of scope for debate as to what sum should be secured in respect of this claim. I do not propose to analyse the evidence : It is incomplete. Such a procedure would be entirely inappropriate on a motion such as this. Although the claim endorsed on the writ is, as I have already said, for a sum in excess of £ 400,000. I was satisfied that the claim will not succeed in full. After some discussion with Counsel, the plaintiffs expressed their willingness to accept security in the sum of £ 300,000. I reached the conclusion that a lesser sum would be adequate and fixed the amount in the round sum of £ 250,000". In the Gulf Venture the Court embarked on an enquiry in relation to the quantum of security claimed by the Plaintiff and in fact in the penultimate and last paragraph, the Judge after holding that he did not propose to analyze the evidence went on to reduce security originally claimed at stg. 4,00,000 and reduced it to stg.2,50,000. 20. In the Gulf Venture the Court embarked on an enquiry in relation to the quantum of security claimed by the Plaintiff and in fact in the penultimate and last paragraph, the Judge after holding that he did not propose to analyze the evidence went on to reduce security originally claimed at stg. 4,00,000 and reduced it to stg.2,50,000. 20. Therefore, the parties cannot arrest a ship for an exorbitant claim and the Court should not sanction such a course even where there is a reasonably arguable best case or a prima-facie. The Court has to consider the Plaintiff's case and after embarking necessary enquiry in that regard, arrive at a proper conclusion on the quantum of security. 21. At the time of obtaining the order of arrest, there was no material or basis for the claim of damages mentioned in item Nos. 2, 3 and 4 of the Particulars of claim at Exhibit 'Q' to the Plaint. No material has been annexed to the Plaint nor even in the reply to the Notice of Motion taken out by the Defendant. Even the affidavit in reply filed on behalf of the Plaintiff contain unsubstantiated statements. Hence, there is no tangible evidence to establish the alleged losses claimed under item Nos. 2, 3 and 4 of the Particulars of Claim which in any event do not appear to be directly connected to the carriage under the Suit Bill of Lading. From the documents annexed to the Plaint, there is nothing prima-facie found to cover the claims at item Nos. 2, 3 and 4 of the Particulars of Claim at Exhibit 'Q' to the Plaint. Therefore, the Plaintiff will be entitled to security only to the extent of Rs. 6,07,746/- which represents item No. 1 in the Particulars of Claim being the alleged value of the Cargo. The Notice of Motion therefore is allowed but only in terms of prayer clause (d). 22. It is further clarified that a reduction in the security or continuing with part security does not mean any opinion/observation has been given on the merits of the case. The Plaintiff is entitled to prove all heads of claim in the trial. Costs of this Notice of Motion be costs in the Suit. 23. 22. It is further clarified that a reduction in the security or continuing with part security does not mean any opinion/observation has been given on the merits of the case. The Plaintiff is entitled to prove all heads of claim in the trial. Costs of this Notice of Motion be costs in the Suit. 23. In view of the above, I pass the following order: (a) Security furnished for release of Defendant No. 3-Vessel be reduced by the amounts mentioned in Item Nos. 2, 3 and 4 of the Particulars of Claim at Exhibit 'Q' to the Plaint. (b) The Defendants to file their written statement within four weeks. No further time will be granted. (c) Affidavit of documents to be filed by the Plaintiff and the Defendants within two weeks thereafter and discovery and inspection to be done within two weeks thereafter. (d) Suit to be listed after eight weeks for 'Direction'. Ordered accordingly.