JUDGMENT: 1. By the above Suit, the Plaintiff Rushab Ship International LLC seeks arrest, sequestration, condemnation and sale of the bunkers on board Defendant No.2 M. V. African Eagle and arrest and deposit of freight due for transportation of cargo laden on Defendant No. 2 at the port of Mumbai, for securing the Plaintiff's claim in arbitration proceedings for a sum of US $ 816,531.22 and accrued interest of US $ 9684.96 and cost in the sum of US $ 826,216.18 for the present proceedings. The Plaintiff has undertaken to invoke arbitration under the Charterparty Agreement dated 16 th March 2012. In the meanwhile, as the Defendant No.2 vessel has entered the Mumbai Port, the Plaintiff has filed the present action seeking security for the arbitration. 2. A Judges Order being No. 07 of 2013 was moved before this Court on 7th January 2013, when this Court passed an order for arrest of Bunkers on board the Defendant No.2 vessel M.V. African Eagle along with freight due for transportation of cargo laden. The Defendant No.3 has now moved an application to vacate the said order of arrest of Bunkers on board the Defendant No.2 along with the freight due for transportation of cargo laden. 3. Briefly set out, the facts in the matter are as under: 4. According to the Plaintiff, by a Charterparty dated 16th March 2012, the Plaintiff chartered the vessel M.V. Don Raul to Defendant No. 3 i.e. Bulk Ship Management S.E.A., a Company incorporated under the laws of the Republic of Malaysia. Under clause 5 of the said Charterparty, hire charges were payable 15 days in advance. Furthermore, under clause 43, Defendant No. 3 was not entitled to withhold any disputed amounts of hire under any circumstance. 5. According to the Plaintiff, in keeping with the terms of the Charterparty, the Plaintiff regularly raised invoices upon Defendant No.3 and forwarded the same to them. According to the Plaintiff, Defendant No. 3 only paid the first two hire payments in full and thereafter on one pretext or the other failed to pay part or any of the hire charges. Defendant No.3, inter alia, told the Plaintiff that since no payments were forthcoming from the sub-charterers, Defendant No.3 could not pay hire charges until such payments were received by it. Defendant No.3, inter alia, told the Plaintiff that since no payments were forthcoming from the sub-charterers, Defendant No.3 could not pay hire charges until such payments were received by it. According to the Plaintiff, on 30th October 2012, Defendant No. 3, whilst purporting to terminate the Charterparty, sought to settle the matter by offering a paltry sum which was rejected by the Plaintiff on 7th November 2012. Thereafter Defendant No. 3 by their email dated 9th November 2012 claimed that US$ 99,600.93 were due from the Plaintiff to Defendant No.3. 6. The Plaintiff being aggrieved by the failure of Defendant No. 3 to pay hire charges, sent a final notice dated 14 th November 2012 for its claim of US$ 877,199.47 (which was subsequently revised to US$ 816,531). According to the Plaintiff, their claim in the suit is genuine as admittedly the vessel M.V. Don Raul was on charter with the Defendant No. 3 till 17th November 2012. 7. The Plaintiff has undertaken to invoke arbitration under the Charterparty Agreement dated 16th March 2012 and has filed the present suit seeking security for their claim against Defendant No.3. Defendant No.1 in the suit are the Bunkers on board Defendant No.2 and the freight due for transportation of cargo laden on her at the Port of Mumbai. Defendant No. 2 M.V. African Eagle is a foreign sea going vessel flying the flag of the Bahamas. Defendant No.2 is currently within Indian territorial waters, lying at the Port and in the Harbour of Mumbai and therefore within the jurisdiction of this Court. Defendant No.3 Bulk Ship Management S.E.A is a Company incorporated under the laws of Malaysia and operates as a chartering company. Defendant No. 4 is the registered owner of Defendant No.2 vessel and Defendant No.5 is the holding Company of MUR Shipping BV, which is a time charterer of Defendant No. 2. 8. The Plaintiff has in the Plaint stated that the Plaintiff has reason to believe that Defendant No. 3 being a typical chartering entity does not own vessels, directly or indirectly, or cargoes and therefore is unlikely to possess any tangible assets other than (i) cash held in its Bank accounts for the remittance and receipt of expenses inter alia bunker fuel, vessel hire and/or freight and other operating costs; and (ii) Bunkers held on board any vessels it is presently operating on a time charter basis. 9. 9. The Plaintiff has also stated in the plaint that they have obtained a report from Gray Page Intelligence Service Limited (Gray Page), world renowned maritime intelligence experts and they have informed the Plaintiff that Defendant No.3 had recently taken delivery of Defendant No.2 on a single time charter trip. Further enquiry with Mumbai Port Authorities has revealed that Defendant No. 2 vessel is loading a cargo of steel from the Port of Mumbai and is expected to leave for an undisclosed port in East Africa on 7th January 2013. Gray Page also informed the Plaintiff that it has reliably learnt from sources close to Defendant No.2 that there were no plans for Defendant No. 2 to take on bunkers in Mumbai prior to her sailing to East Africa. The Plaintiff has stated in the plaint that in view thereof, the Plaintiff believes that any bunkers on board Defendant No.2 will remain the property of Defendant No.3, as bunkers remaining on board will have been transferred at the time of her delivery to the present charterer. A copy of the report made by Gray Page is also annexed to the plaint. 10. As set out hereinabove, in view of the above facts narrated before the Court on 7th January 2013, this Court passed an order of arrest of Bunkers on board the Defendant No.2 vessel along with the freight due for transportation of cargo laden on Defendant No.2 at the port of Mumbai. Defendant No.3 has now made an application seeking vacation of the order dated 7th January 2013. Though Defendant Nos. 1, 2, 4 and 5 are represented by their Advocates who have contended that a major part of the bunkers on board belongs to Defendant No.4 and not Defendant No.3, they have not taken out any application seeking to set aside the order of this Court dated 7th January 2013. 11. As regards the Bunkers on board, Defendant No.3, without prejudice to its contention that the Bunkers cannot be arrested and/or proceeded against in Admiralty, has submitted that the Plaintiff's case of Defendant No.3 being the owner of the Bunkers on board Defendant No.2, is founded on its own belief and the report of Gray Page. It is submitted that this is double hearsay and cannot be the foundation of a prima facie case for arrest of the bunkers on board Defendant No.2. 12. It is submitted that this is double hearsay and cannot be the foundation of a prima facie case for arrest of the bunkers on board Defendant No.2. 12. Defendant No.3 has submitted that the documents submitted by it, belie the allegations of the Plaintiff and the report of Gray Page. Defendant No.3 has relied on the fixture note/contract of carriage dated 29th December 2012 between Defendant No.3 and MUR Shipping (affiliate of Defendant No.5), the relevant clause of which reads as under: BOD ABT 75/825 MT IFO AND ABT 70/90 MT MDO BOR ABT SAME AS ACTUALLY ON BOARD ON DELIVERY ON DELIVERY, TOGETHER WITH FIRST HIRE PAYMENT, CHRTS TO TAKE OVER AND PAY FOR BUNKERS UPTO BUNKERING PORT AT USD 625 PER MT IFO AND USD 1020 PER MT MDO. CHRTS TO UNKER AT SUCH BUNKERING PORT TO MEET the REDELY QTTIES. OWS ON REDEL TO TAKE OVER AND PAY FOR BUNKERS CHRTRS HAVE ALREADY PAID FOR, AT the SAME PRICES. OWS HAVE RIGHT TO SUPPLY BUNKERS TO THE VSL CONCURRENT TO CHRTRS BUNKER SUPPLY PROVIDED SAME DOES NOT INTERFERE WITH CHRTRS BUNKERING OPERATION AND VSLS CARTO INTAKE. 13. According to the Defendant No.3, it is clear from the contents of the fixture note extracted hereinabove that Defendant No.3 is required to (a) ensure that the quantity of bunkers on board Defendant No.2 is the same at the time of delivery and redelivery; (b) in the first instance, Defendant No. 3 has paid for the bunkers from the delivery port (Kandla) to bunkering port (Fujairah), which is identified in the email dated 30th December 2012; and (c ) to the extent of the freight for bunkers, at the bunkering port and upon Defendant replenishing them, MUR Shipping is to reimburse these bunkers at the same price i.e. US$ 625 per MT IFO and US$ 1020 per MT MDO. Defendant No.3 has therefore submitted that at the highest the Bunkers under its ownership are valued at US$ 69,532 being 83.25 MT IFO and 14 MT MDO. The balance Bunkers continue to be in the ownership of Defendant No.5 as also confirmed by Defendant No.5 in its communication dated 9th January 2013 addressed to the Advocates for the Plaintiffs. 14. Defendant No.3 has therefore submitted that at the highest the Bunkers under its ownership are valued at US$ 69,532 being 83.25 MT IFO and 14 MT MDO. The balance Bunkers continue to be in the ownership of Defendant No.5 as also confirmed by Defendant No.5 in its communication dated 9th January 2013 addressed to the Advocates for the Plaintiffs. 14. It is submitted on behalf of the Defendant No. 3 that the Plaintiff has sought to cast a suspicion on the fixture note/contract of carriage dated 29th December 2012 by alleging that the bunkering port is not identified in the said fixture note and that if Defendant No. 2 were to bunker at Fujairah and make good the bunkers purchased from MUR shipping, it would not be possible for Defendant No.2 to have the quantity of bunkers required to be made available at the port of redelivery i.e. East Africa and that the fixture note gives Defendant No. 3 a free ride from the delivery port to the bunkering port. It is submitted that these allegations are incorrect and unfounded and cannot be raised orally. However, it is submitted that the bunkering port under the Charterparty dated 29 th December 2012 i.e. Fujairah, has been identified on the very next day i.e. under the email dated 30th December 2012. This is prior to the institution of the suit on 7th January 2013 and it is no one's case that this email has been concocted. Therefore, there is no merit in the Plaintiff's contention that the bunkering port is unidentified. 15. It is further submitted on behalf of Defendant No. 3 that at Fujairah, Defendant No.2 is to be bunkered to make good the bunkers acquired from the MUR Shipping and also for further bunkers required for the onward journey from Fujairah to East Africa. Defendant No.2's further voyage from Fujairah to East Africa is to be on the strength of Defendant No. 3's bunkers. It is no one's case that 775 MT is the full capacity of Defendant No.2's tanks holding bunkers and that Defendant No.2 cannot carry more than the above mentioned capacity. There is therefore no merit in the allegation of the Plaintiff that if Defendant No.2 is bunkered at Fujairah, it could never meet the fixture requirement ensuring the same quantity of bunkers at the time of redelivery, as there were on delivery. 16. There is therefore no merit in the allegation of the Plaintiff that if Defendant No.2 is bunkered at Fujairah, it could never meet the fixture requirement ensuring the same quantity of bunkers at the time of redelivery, as there were on delivery. 16. It is also submitted on behalf of Defendant No.3 that the Plaintiff's Advocates who have been in correspondence with Defendant No.5's Advocates, accepted Defendant No.3's interpretation of the fixture note /email dated 29th December 2012, that if the fixture note is accepted then at the highest only bunkers of US$69,032/have vested in Defendant No.3. Further, in affidavits, the Plaintiff has not disputed and/or denied the veracity/genuineness of the email dated 29th December 2012 containing fixture or charter party contract. It is therefore undisputed that the ownership of the balance bunkers on board, vest in Defendant No.5/MUR Shipping and Defendant No. 3 at the highest has acquired bunkers worth US$ 69032/. The Plaintiff therefore has no right to proceed against the balance bunkers. 17. Defendant No.3 has further stated in its Affidavit that out of the bunkers of US$ 69,532 under its ownership, post the journey from Kandla to Mumbai, only 61.40 MT of HO and 10.39 MT of DO, totally valued at US $ 34,692.80 remain. At best, this is all that can be said to be Defendant No.3's property. However, even these have been consumed by Defendant No.2 on a day to day basis. It is therefore submitted on behalf of Defendant No.3 that the order arresting bunkers dated 7th January 2013 be set aside. 18. The Learned Advocate appearing for Defendant Nos.1,2,4 and 5 has submitted that the Plaintiff has admittedly no claim or dispute against the Defendant No.2 vessel or against MUR Shipping BV or any of the Defendants, other than Defendant No.3. Notwithstanding the above, the Plaintiff proceeded on 7th January 2013 to arrest all the bunkers on board the Defendant No.2 vessel on the erroneous basis that the said bunkers belong to Defendant No.3 against whom it has an alleged claim. It is submitted that the majority of the bunkers on board the vessel belong to MUR Shipping BV and not to Defendant No.3. This is clear from the relevant provisions of the fixture note dated 29th December 2012 in respect of the Defendant No.2 vessel. 19. It is submitted on behalf of Defendant Nos. It is submitted that the majority of the bunkers on board the vessel belong to MUR Shipping BV and not to Defendant No.3. This is clear from the relevant provisions of the fixture note dated 29th December 2012 in respect of the Defendant No.2 vessel. 19. It is submitted on behalf of Defendant Nos. 1, 2, 4 and 5 that the terms of the Charterparty between MUR shipping BV and Defendant No.3 are such that the ownership of the majority of the bunkers on board Defendant No.2 remains vested in MUR Shipping BV. The learned Advocate has relied on the correspondence exchanged between the Advocates for Defendant No.2 and MUR Shipping with the Advocates for the Plaintiff and has submitted that though the Advocates for the Plaintiff have disputed the existence of the transaction, they have acknowledged the fact that the effect of the transaction (if it existed) was that the ownership of all bunkers except the bunkers required to take the vessel from delivery port Kandla to bunkering port Fujairah vested in MUR Shipping BV. It is therefore submitted that there is no dispute on the interpretation of the terms of the Charterparty and both the parties are adidem that the transaction, if it exists, has the effect that Defendant No.3's ownership interest is limited to the bunkers required to take the vessel from delivery port Kandla to the bunkering port Fujairah. It is further submitted that the transaction between MUR Shipping BV and Defendant No. 3 is a fixture note, contained in an email communication dated 29 th December 2012 made several days before the arrest and pursuant to which payment via Bank wire transfer of US$ 267,565.13 was made by Defendant No. 3 to MUR shipping BV for hire and for the small quantity of bunkers which were transferred to Defendant No.3. The authenticity of the email is proven as an email communication is not easily forged. It is submitted that there is no reason to prima facie doubt the existence of the transaction and even if there had been any doubt about the transaction, it is noteworthy that the Bank wire transfer was made pursuant to the transaction. It is therefore submitted that the Plaintiff could never have arrested the bunkers thereby warranting the setting aside of the order of arrest dated 7th January 2013. 20. The learned Advocate appearing for Defendant Nos. It is therefore submitted that the Plaintiff could never have arrested the bunkers thereby warranting the setting aside of the order of arrest dated 7th January 2013. 20. The learned Advocate appearing for Defendant Nos. 1, 2, 4 and 5 has relied on the decision in THE BELDIS 1 and has submitted that in the said case the issue was considered as to whether an action in rem would lie against a ship or other property belonging to a person who was a party to the cause of action, but in respect of which cause of action the ship or other property sought to be made liable was in no way involved. It is submitted that the decision in The Heinrich Bjorn on which the Plaintiff relied upon extensively to support its proposition that property other than ships can be arrested even if the cause of action does not relate to that property/ship was overruled by the said case of The Beldis. The dictum delivered in The Heinrich Bjorn case was disapproved and held to be obiter , erroneous and not binding. It is submitted that it was held that the procedure in rem either in the Admiralty Court or in the County Court does not permit the arrest of a ship or other property of a defendant unconnected with the cause of action. The arrest of a sister ship is now permitted by reason of the 1952 and 1999 Arrest of Ships Conventions. However, the position with respect to the arrest of other property not connected to the cause of action still holds sway, as held in The Beldis. It is submitted that in view of the same, the arrest of bunkers (and freight) unconnected with the cause of action is not permissible, especially considering that the bunkers belong to MUR Shipping BV. 21. The learned Advocate appearing for Defendant Nos.1, 2, 4 and 5 has relied on the decision in Galaxia Maritime S.A. v. MINERAINPORTEXPORT 2 wherein it was held by the Court of Appeal that a Plaintiff was not entitled to an injunction which would have the effect of substantially interfering with the business rights of a third party in order to secure the ultimate recovery of debts or damages from the defendant with which the third party was in no way concerned. The injunction granted to the Plaintiffs involved an unwarrantable 2 (1982) 1 W.L.R. 539 interference with the trading activity of the vessel's owners and would be discharged (?). In page 542A, it was held I regard it as absolutely intolerable that the fact that one person has a claim for a debt against another, that third parties should be inconvenienced in this way, not only to affect their freedom of trading but their freedom of action generally speaking. 22. The learned Advocate appearing for Defendant Nos. 1, 2, 4 and 5 has also relied on the decision of 1984 New Zealand case of Gilfoyle Shipping Service Ltd. v. Binosi Pty. Ltd. wherein it was held that if the ship was not allowed to sail because its fuel had been seized, considerable hardship would be caused to the ship's owner. The rights of the third party outweighed the plaintiff's desire to recover what it could of its alleged debt. Further, in the said case, the Court ruled that even if the fuel was taken as belonging to the party against whom the Plaintiff had a claim, the order of arrest would still be vacated. In page 74715, it was held In my view, there would be an intolerable burden on the owners; whilst one has every sympathy for the plaintiff which has given a lot of credit to a defendant which apparently does not intend to pay, that sympathy must be outweighed by the inconvenience to the third party. 23. The learned Advocate appearing for Defendant Nos. 1, 2, 4 and 5 has therefore submitted that the veracity of the Plaintiff's claim is still in doubt and more importantly the bunkers which have been arrested belong to MUR Shipping BV. Even if it is taken that the Plaintiff has a good case and that the bunkers do indeed belong to the 3 rd Defendant, gross inconvenience is being caused to third parties, i.e. 2nd and 4th Defendants and MUR Shipping BV by the arrest undertaken by the Plaintiff in relation to an alleged claim it has against the 3 rd Defendant. The vessel is unnecessarily being kept under arrest, thus interfering with MUR Shipping BV's freedom of trading and action. It is therefore submitted that the arrest should thus be vacated. 24. The Plaintiff has not responded to the Defendants' case qua the bunkers by filing an affidavit. The vessel is unnecessarily being kept under arrest, thus interfering with MUR Shipping BV's freedom of trading and action. It is therefore submitted that the arrest should thus be vacated. 24. The Plaintiff has not responded to the Defendants' case qua the bunkers by filing an affidavit. However, they have made serious allegations across the Bar in response to the case put up by the Defendants qua the bunkers on board Defendant No.2. It is alleged by the Plaintiff that all the bunkers on board Defendant No.2 are liable to be arrested and the submission advanced on behalf of Defendant No.3 that all the bunkers on board are not the property of Defendant No.3 but belong to Defendant No.5 is demonstrably erroneous/false. It is submitted that the normal /usual position in law is that in a Time Charter, bunkers are the property of the charterer. It is submitted that Defendant Nos. 3 and 5 wrongly contended that the normal Charterparty terms were departed from in this case. The Plaintiff strongly challenged the authenticity of the document and contested the same. It is submitted that the Plaintiffs are not provided with the relevant documents. Relying on a copy of the Charterparty dated 11th May 2011 produced by Defendant No.5 in their correspondence exchanged with the Plaintiff, it is submitted on behalf of the Plaintiff that a reading of the said Charterparty shows that the same contemplated that the ownership of bunkers on delivery was transferred to the charterer and the same would be transferred back to the owner on redelivery. However, by the fixture note Defendant Nos. 3 and 5 are claiming a new and novel arrangement for ownership of bunkers which defies all logic and commercial sense. It is submitted that according to the fixture note there is a clear transfer of the ownership of the bunkers during the course of the Charterparty. However, by the fixture note Defendant Nos. 3 and 5 are claiming a new and novel arrangement for ownership of bunkers which defies all logic and commercial sense. It is submitted that according to the fixture note there is a clear transfer of the ownership of the bunkers during the course of the Charterparty. It is submitted that however the Defendant No.3 have in their affidavit wrongly argued that (i) there was 799 MT of HO and 25.71 MT DO on board the vessel on delivery; (ii) Defendant No. 3 was to only pay for value of bunkers to be consumed from delivery port to bunkering port, which would have been repaid to Defendant No.3 by Defendant No. 5 in the second hire statement; (iii) Defendant No. 3 will make its own arrangement for bunkers from bunkering port of Fujairah; (iv) Therefore, Defendant No.3 only paid US$ 69,532 for 88.4 MT HO and 14 MT DO; (v) Defendant No.2 made a voyage from Kandla to Mumbai and as on date of the arrest the quantities on board the vessel were 61.40 MT HO and 10.39 MT DO; and (vi) If at all, only 61.40 MT HO and 10.39 MT DO are liable for arrest. 25. It is submitted that this interpretation is supported by the first hire statement dated 29 th December 2012, the authenticity of which is strongly disputed by the Plaintiff. The Plaintiff has therefore submitted that Defendant Nos. 3 and 5 have acted in complete disregard to accepted practice. According to the Plaintiff, the fixture note contemplated only one bunkering port and it cannot be anywhere other than the one situated at or near the redelivery port i.e. Tulear. It is therefore submitted on behalf of the Plaintiff that the entire interpretation put forward by Defendant Nos. 3 and 5 is totally unbelievable and defies all logic, commercial sense and established practice. Referring to the two more fixture notes relied on by Defendant No.5 during the course of hearing as examples, the Plaintiff has submitted that the two fixture notes cannot be compared with the subject fixture note. From a reading of the said two fixture notes it is clear that depending upon whether the quantity of bunkers at the time of redelivery was less/more than at the time of delivery, the owners/charterers would compensate each other at the rate specified in the clause. From a reading of the said two fixture notes it is clear that depending upon whether the quantity of bunkers at the time of redelivery was less/more than at the time of delivery, the owners/charterers would compensate each other at the rate specified in the clause. In other words, if the quantity of bunkers at the time of redelivery was less than that at the time of delivery, charterers would pay the owners the monetary equivalent thereof at the same rate as the rate specified in the clause. This is nothing more than a manner of accounting for difference in the quantity of bunkers at the beginning/end of the voyage, with the same rate being applicable at both ends. 26. It is therefore submitted on behalf of the Plaintiff that the construction/interpretation sought to put forward by the Defendants qua the said fixture note is mainly a device to defeat the Plaintiff's legitimate claim, and the order dated 7th January 2013 directing arrest of bunkers on board Defendant No. 2 ought not to be set aside as prayed for by the Defendants. 27. I have considered the submissions advanced on behalf of the Plaintiff, Defendant No.3 and Defendant Nos. 1, 2, 4 and 5. It is the Plaintiff's case that they have to recover amongst others the charter hire in respect of the Plaintiff's vessel M.V. Don Raul which was chartered to Defendant No.3 by a Charterparty dated 16th March 2012. According to the Plaintiff, they have made out a strong prima facie case against Defendant No.3 for recovery of their dues and are therefore entitled to inter alia arrest the bunkers on board Defendant No.2 which according to them, belongs to Defendant No.3. According to the Plaintiff, they have made out a strong prima facie case against Defendant No.3 for recovery of their dues and are therefore entitled to inter alia arrest the bunkers on board Defendant No.2 which according to them, belongs to Defendant No.3. According to Defendant No.3, not only do the Plaintiffs not have any prima facie case against them for recovery of any dues as alleged but except for a small portion, the bunkers do not belong to Defendant No.3 and without prejudice to their contention that the bunkers on board Defendant No.2 vessel cannot be arrested and/or proceeded against in Admiralty, for the purpose of the present application, whilst proceeding on the facts of the case, the Defendant No. 3 asserted that the Plaintiff is not entitled to arrest any part of the bunkers, and submitted that if at all the same are to be arrested, the said arrest cannot exceed the bunkers worth US $ 34,692.80 i.e. 61.40 mt of HO and 10.39 mt of DO. 28. Admittedly, the Plaintiffs have raised 9 invoices of which 8 have been forwarded to Defendant No.3. No doubt, Defendant No.3 has always refuted its liability to make any payments to the Plaintiff. As per Clause 5 of the Charterparty, the hiring charges were payable 15 days in advance and under Clause 43 the Defendant No.3 was not entitled to withhold any disputed amounts of hire. This Court therefore proceeds with the present application on the basis that the Plaintiff has made out a prima facie case in support of its claim against Defendant No.3 in respect of the vessel M.V. Don Raul which the Plaintiff chartered to Defendant No.3 by a Charterparty dated 16 th March 2012, though the actual sums due and payable by the Defendant No.3 to the Plaintiff and by the Plaintiff to Defendant No.3 in case of a counter claim filed in arbitration shall be decided by the Arbitral Tribunal. 29. The next question which needs to be decided whilst keeping the issue open, is whether the bunkers can be arrested and/or proceeded against in Admiralty, andwhether the bunkers on Board Defendant No.2 are owned by Defendant No.3?. 29. The next question which needs to be decided whilst keeping the issue open, is whether the bunkers can be arrested and/or proceeded against in Admiralty, andwhether the bunkers on Board Defendant No.2 are owned by Defendant No.3?. As set out hereinabove, the Plaintiff has in the plaint relied on the report of Gray Page and has stated in para 6 of the plaint that they have reason to believe that Defendant No.3 being a typical chartering entity does not own vessels, directly or indirectly, or cargoes and therefore is unlikely to possess any tangible assets other than (I) cash held in its bank accounts for the remittance and receipt of expenses inter alia bunker fuel, vessel hire and/or freight and other operating costs; and (2) Bunkers held on board any vessels it is presently operating on a time charter basis. Even in the report of Gray Page it is stated : it is our belief that any bunkers onboard the AFRICAN EAGLE will remain the property of the timecharterers. As bunkers remaining onboard will have been transferred at the time of her delivery to the present charterer. The entire assertion of the Plaintiff in the plaint that the bunkers on board Defendant No.2 belonged to Defendant No.3 is therefore based only on their belief which is further based on the belief of Gray Page Intelligence report. Again, as set out hereinabove, even after receiving explanation from the Defendants by way of letters along with copies of certain documents, the Plaintiff has not filed any affidavit dealing with the case put forth by the Defendant No. 3 that a substantial part of bunkers belonged to Defendant No.5 and not to Defendant No.3. All the allegations qua the bunkers and the documents on which the Defendant Nos. 3 and 5 have relied upon have been dealt with and disputed by the Plaintiff only through oral submissions made across the Bar. 30. Defendant No.3 has produced the fixture note/contract of carriage dated 29 th December 2012 between Defendant No.3 and Defendant No.5, an affiliate of MUR Shipping BV. Though the relevant clause of the fixture note is reproduced hereinabove, the same is again reproduced for ready reference:. 30. Defendant No.3 has produced the fixture note/contract of carriage dated 29 th December 2012 between Defendant No.3 and Defendant No.5, an affiliate of MUR Shipping BV. Though the relevant clause of the fixture note is reproduced hereinabove, the same is again reproduced for ready reference:. BOD ABT 75/825 MT IFO AND ABT 70/90 MT MDO BOR ABT SAME AS ACTUALLY ON BOARD ON DELIVERY ON DELIVERY, TOGETHER WITH FIRST HIRE PAYMENT, CHRTS TO TAKE OVER AND PAY FOR BUNKERS UPTO BUNKERING PORT AT USD 625 PER MT IFO AND USD 1020 PER MT MDO. CHRTS TO UNKER AT SUCH BUNKERING PORT TO MEET the REDELY QTTIES. OWS ON REDEL TO TAKE OVER AND PAY FOR BUNKERS CHRTRS HAVE ALREADY PAID FOR, AT the SAME PRICES. 31. From the above clause, it is clear that Defendant No.3 is required to ensure that the quantity of bunkers on board Defendant No.2 is the same at the time of delivery and redelivery. Upon delivery, Defendant No.3 is required to pay for bunkers from the delivery port (Kandla) to the bunkering port at USD 625 per MT IFO and USD 1020 per MT MDO. This payment is required to be made under the first hire charge statement. The Plaintiff has strongly asserted that in the said fixture note it is not stated at which bunkering port Defendant No.3 was to bunker Defendant No.2. However, it is clear from the email dated 30th December 2012 that the bunkering port (Fujairah) was identified on the next day of the fixture note/contract dated 29th December 2012 i.e. much before the arrest of Defendant No.2. The first hire statement is also produced before the Court. An email dated 30th December 2012 setting out the value of bunkers from delivery port till bunkering port aggregating to USD 69,532.12 sent by Defendant No.3 is also produced before the Court. Copies of documents showing that MUR Shipping has purchased the bunkers in the first place and the Bank Wire transfer of US $ 267,565.13 from Defendant No.3 to MUR Shipping BV is also perused by the Court. Copies of documents showing that MUR Shipping has purchased the bunkers in the first place and the Bank Wire transfer of US $ 267,565.13 from Defendant No.3 to MUR Shipping BV is also perused by the Court. In view thereof, from the said fixture note/contract of carriage dated 29th December 2012 along with the documents mentioned in this paragraph, it is evident that only the quantity of bunkers required to take the Defendant No.2 vessel from the delivery port (Kandla) to the bunkering port (Fujairah) belonged to Defendant No.3 as per the terms of the Charterparty entered into between Defendant No.3 and MUR shipping BV. Since the fixture note, the hire statement, the bunker statement, the Bank wire transfer and the payment of the amount of Rs. 267,565.13 by Defendant No.3 to MUR Shipping BV are exchanged through emails, that too much prior to the date of arrest of the Defendant No.2 vessel i.e. 7th January 2013, I am satisfied that the said documents are genuine and there is nothing suspicious about the same. 32. I am therefore also of the view that the explanation/interpretation sought to be given by Defendant Nos. 3 and 5 to the fixture note/carriage of contract is correct and I accept the submissions on behalf of Defendant Nos.3 and 5 in regard thereto. As regards the submission advanced on behalf of the Plaintiff that the transaction entered into by and between Defendant No.3 and MUR Shipping BV is in complete disregard to the accepted practice, in my view the contract entered into by and between Defendant No.3 and Defendant No. 5 is a commercial contract and it is for the parties to the contract to decide and agree uponthe terms and incorporate the same in the contract. Once the parties to the contract agree to the terms and execute the contract, the terms of the contract cannot be questioned by any third party. 33. The learned Advocate appearing for Defendant Nos. 1, 2, 4 and 5 on being informed of the arrest of their bunkers immediately communicated to the Plaintiff's Advocates their ownership in the majority of the bunkers and called on the Plaintiff's Advocates to discharge the order of arrest. 33. The learned Advocate appearing for Defendant Nos. 1, 2, 4 and 5 on being informed of the arrest of their bunkers immediately communicated to the Plaintiff's Advocates their ownership in the majority of the bunkers and called on the Plaintiff's Advocates to discharge the order of arrest. A copy of the fixture note dated 29th December 2012 in respect of the Defendant No.2 vessel along with the copy of the first hire statement and the statement setting out the value of the bunkers from the delivery port till bunkering port was also forwarded to the Advocate for the Plaintiff. From the response of the Plaintiff's Advocates, as correctly pointed out by the Learned Advocate appearing for Defendant Nos. 1, 2, 4 and 5, it is clear that though the Plaintiff's Advocates disputed the existence of the transaction, they did not dispute the fact that the effect of the transaction (if it existed) was that the ownership of all bunkers except the bunkers to take the vessel from delivery port Kandla to the bunkering Port Fujairah vested in MUR Shipping BV. By a subsequent letter, the Advocates for Defendant Nos. 1, 2, 4 and 5 also provided copies of various other documents such as evidence of Bank wire transfer of US$ 267,565.13 and the evidence of purchase of bunkers by MUR Shipping BV's related Company MUR Shipping on behalf of MUR Shipping BV. Despite receipt of these documents, the Plaintiff in none of their letters raised any issue on the interpretation of the fixture note and also did not file any affidavit dealing with the said documents. The excuse sought to be given is that inspection of the originals and other documents sought for was not given, which excuse cannot be accepted. Instead, for the first time in the course of the arguments it was submitted that the interpretation advanced by Defendant Nos. 1, 2, 4 and 5 to the fixture note is incorrect which submission advanced on behalf of the Plaintiff has already been rejected above. 34. In the circumstances I am satisfied that the Defendant Nos. 1 to 5 have established that the ownership of all bunkers except the bunkers required to take the Defendant No.2 vessel from delivery port Kandla to bunkering port Fujairah vested in MUR Shipping BV. 34. In the circumstances I am satisfied that the Defendant Nos. 1 to 5 have established that the ownership of all bunkers except the bunkers required to take the Defendant No.2 vessel from delivery port Kandla to bunkering port Fujairah vested in MUR Shipping BV. Defendant No.3 made payment of US$ US$ 69,532 for 88.4 MT HO and 14 MT DO, which quantities were estimated as required for voyage from port of delivery to the port of bunkering. As on the date of order of arrest dated 7th January 2013,the Defendant No.2 vessel made a voyage from Kandla to Mumbai. The quantity of bunkers on board the Defendant No.2 vessel was 61.40 MT HO and 10.39 MT DO. Hence on the date of the order of arrest the value of the bunkers which the Defendant No.3 was entitled to use was US$ 34692.80. The Defendant No.3, without prejudice to their contention that bunkers on board Defendant No. 2 vessel cannot be arrested and/or proceeded against in Admiralty, shall therefore give security only to the extent of US$ 34692.80 being the value of bunkers owned by them on the date of the arrest i.e. 7th January 2013. 35. As regards the arrest of freight, it is submitted on behalf of Defendant No.3 that the order arresting freight on board the vessel Defendant No.2 be vacated as there is no jurisdiction in the Admiralty Court to arrest such freight. It is submitted that there is no statute and/or convention which recognizes the entitlement and/or right to arrest freight (per se). None of the statutes and/or conventions including the Admiralty Courts Act, 1861 (the 1861 Act); Colonial Courts of Admiralty Act, 1891 (the 1891 Act); International Convention Relating to the Arrest of Sea Going Ships (the Brussels Convention); and International Convention on the Arrest of Ships (the Geneva Convention) provide for arrest of freight per se. There is, therefore, no entitlement to so pursue and arrest freight in Admiralty. 36. Without prejudice to the aforestated contentions, it is submitted on behalf of Defendant No.3 that in the absence of privity and/or a right to proceed against the res (the vessel), there is no right in a Plaintiff to proceed against either the ship and/or cargo and seek arrest thereof to bring in freight. 36. Without prejudice to the aforestated contentions, it is submitted on behalf of Defendant No.3 that in the absence of privity and/or a right to proceed against the res (the vessel), there is no right in a Plaintiff to proceed against either the ship and/or cargo and seek arrest thereof to bring in freight. Freight can be brought in only if there is an offence (breach of contract/tort) committed by the vessel and an entitlement to proceed against her. This is because only the offending ship/cargo can be proceeded against and not any other property of the owner. In support of this contention, the Defendant No.3 has relied on the decisions in (a) The Victor 1860 (Lush 72) (Pg. 40, para 76); and (b) The Flora (1866) A & ELR 45 (Pgs. 47 and 48). It is submitted that the legal principle is that freight cannot be independently proceeded against in Admiralty. 37. Relying on the case of David Morgan v. The Cast legate (Pgs. 48, 53 to 55 and 56) and Admiralty Jurisdiction and Practice by Nigel Meason, First Edition (Pages 69 and 70), Defendant No.3 has submitted that it is a settled position of law that (a) the Court of Admiralty has no authority to grant process against freight simplicitor for the purposes for enforcing a maritime claim/lien upon it, save and except as consequential upon and in connection with process against the ship. Hence, if there is no right to proceed against the ship and/or the cargo, there can be none against the freight; (b) Admiralty Court has never recognized the possibility of there being a maritime lien upon freight which is not associated with or founded upon a right to proceed in rem against the ship and/or cargo; (c) no process can issue from the Court having for its sole object the attachment of cargo in order to enforce a maritime lien for freight; and (d) the absolute dependence of a lien or freight upon the liability of the ship to attachment of the same debt. Any claim in respect of freight is parasitic in character and depends upon the entitlement to proceed against the vessel. 38. Any claim in respect of freight is parasitic in character and depends upon the entitlement to proceed against the vessel. 38. It is submitted on behalf of Defendant No.3 that in the case of Kaletan (1914 TLR 30), the English Court has in fact followed the decision in Cast legate and considered the issue of the Court's power to arrest freight. The Court concluded that warrant against freight cannot be issued separate from ship and cargo or ship or cargo. The Court followed the principle laid down in Cast legate and stated that no warrant of arrest for cargo so as to get at freight had ever been granted apart and separate from the warrant for the corpus of the ship. The attachment of the ship was an essential preliminary to the proper exercise by the Court on the lien on freight. 39. It is submitted on behalf of Defendant No.3 that in fact the Bombay High Court (Original Side) Rules, 1980 (the Rules) recognzies this position of the English law. Rule 946 (4) of the said Rules clearly states that services can be effected only upon cargo in respect of which freight is payable or on the ship in which the cargo was carried. Hence, privity and/or a right to proceed against the cargo/ship is an essential prerequisite to arrest freight. 40. It is submitted on behalf of the Defendant No.3 that therefore the legal principle is that (a) freight cannot be independently proceeded against in admiralty; (b) in the absence of entitlement to proceed against the ship and/or cargo, no action and/or process can lie against freight; and (c ) it is in respect of the same debt that the ship can be proceeded that can any lien on freight be exercised. 41. It is submitted that in the instant case it is undisputed that (a) the Plaintiff has no privity against either with Defendant No.2 or the cargo; (b) Plaintiff does not seek any arrest of either Defendant No.2 or the cargo; and (c ) the suit claim is not due and payable in respect of either Defendant No.2, its cargo or the voyage. In this view of the matter, the plaint on its own does not disclose any cause of action and entitlement to proceed against the freight or bunkers of Defendant No.2. There can be no arrest of any alleged sister freight. In this view of the matter, the plaint on its own does not disclose any cause of action and entitlement to proceed against the freight or bunkers of Defendant No.2. There can be no arrest of any alleged sister freight. Such a concept is untenable in law. 42. It is submitted that on the other hand, Defendant No.3 has produced its Charterparty dated 20th December 2012 with the cargo interest JSW Steel Ltd. (JSW). Clause 12 of the rider clauses states that 100% freight is payable within three banking days after completion of loading. The total cargo to be carried under this Charterparty is 12,200 MT +/5%. The Master's report relied upon by the Plaintiff states that as on 7th January 2013 (the date of the arrest), the quantity loaded on board was 10,200 MT. Hence on the Plaintiff's own showing, as on 7th January 2013 loading was incomplete and as such freight was neither due nor payable. It is submitted that on this count also the arrest of freight is bad in law. 43. It is submitted that in paragraph 7 of the Plaint, the Plaintiff has submitted that the Plaintiff is entitled to pursue the same by an action in rem against the bunkers on board Defendant No.2 and the freight to be earned for cargo loaded at Mumbai. It is submitted that the plaint therefore admits that freight is not due and payable. 44. The Learned Senior Advocate appearing for the Plaintiff has submitted that the argument advanced on behalf of Defendant No.3 that this Court does not have jurisdiction to arrest freight and in the alternative does not have jurisdiction to arrest freight which has not been accrued deserves to be rejected. It is submitted that argument advanced on behalf of Defendant No.3 that the arrest of freight, which may or may not accrue, results in arrest of vessel and cargo against which the Plaintiff has no claim and thus prejudices not only the Charterer and the Owner but also the shipper and consignee also deserves to be rejected. It is further submitted on behalf of the Plaintiff that as per Clause 12 of the Charter Party for cargo dated 20 th December 2012, 100 per cent freight is payable within three Banking days after completion of loading. It is submitted that admittedly freight has not yet been paid. It is further submitted on behalf of the Plaintiff that as per Clause 12 of the Charter Party for cargo dated 20 th December 2012, 100 per cent freight is payable within three Banking days after completion of loading. It is submitted that admittedly freight has not yet been paid. It is submitted that freight becomes due immediately on loading and must be paid within three days of loading. It is submitted that during oral arguments it was canvassed that since the loading was completed on 11th January 2012, freight could not be due at the time of arrest i.e. on 7th January 2013. It is submitted that from the port report and the correspondence produced by Defendant No. 3, it is clear that Defendant No. 2 vessel was fully loaded and ready for departure, but for the arrest order dated 7th January 2013. It is submitted that the contention that cargo was loaded only on 11th January 2013 is clearly false. The cargo had been clearly loaded (and freight became due) on 7th January 2013 and the Defendant No.2 vessel was ready in all respects. It is submitted that in any case, in the light of the Defendant No.3's failure to disclose the vital information at an earlier date and the port records, it should be presumed that the vessel was loaded and ready in all respects on 7th January 2013. It is submitted that only freight which is 'due' is sought to be arrested i.e. 'owed, or owing' as distinguished from payable. A debt is often said to be due from a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived (Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.). It is submitted that the Plaintiff has sought to arrest freight which is due but has not been paid. In fact, freight which has already been paid cannot be arrested and this is explicitly recognized by Rule 946 (4). It is submitted that thus, once freight is due and becomes payable it may be arrested. 45. It is further submitted on behalf of the Plaintiff that freight being an intangible property, cannot be arrested without arresting the underlying asset i.e. cargo and/or ship. It is submitted that thus, once freight is due and becomes payable it may be arrested. 45. It is further submitted on behalf of the Plaintiff that freight being an intangible property, cannot be arrested without arresting the underlying asset i.e. cargo and/or ship. Furthermore, Rule 946 (4) of the Bombay High Court (Original Side) Rules clearly contemplate that Where the property is freight, service shall be effected by serving on the cargo in respect of which the freight is payable or on the ship in which the cargo was carried, in the manner hereinabove prescribed in this Rule for service on a cargo or on a ship. Thus, arrest of freight can be caused by service either on the vessel or the cargo. The Plaintiff has proceeded against the cargo to arrest the freight, as provided for in the Bombay High Court (Original Side) Rules. 46. It is further submitted on behalf of the Plaintiff that arrest of freight is permitted under Admiralty jurisdiction. There is no embargo under any of the Admiralty statutes qua arrest of freight. It is submitted that the Admiralty Courts Act, 1861 did not specify the property over which the jurisdiction could be exercised. In the absence of any express words of curtailment, jurisdiction by the Admiralty Court should be assumed to be exercised over any property, so long as the claim in respect of which jurisdiction was invoked, was a maritime claim recognised by the Act of 1861. The category of maritime claims recognised under the Act of 1861 has by reason of subsequent legislative changes, been made more comprehensive. However, there has been no dilution in so far as the property which can be proceeded against is concerned and in so far as maritime claims are concerned. It is submitted that a careful reading of the Act of 1861 clearly indicates that Admiralty jurisdiction could be exercised over property other than a ship. In other words, it is incorrect to assert that admiralty jurisdiction can only be exercised over 'ships'. In support of this contention, the Plaintiff has relied on Sections 2, 18, 23 and 33 of the Act of 1861. It is submitted that Section 2 of the Act of 1861 defines a 'ship' in contrast to 'property' which is undefined. Section 18 of the Act of 1861 clearly recognizes the distinction between the expression 'ship' and 'other property'. In support of this contention, the Plaintiff has relied on Sections 2, 18, 23 and 33 of the Act of 1861. It is submitted that Section 2 of the Act of 1861 defines a 'ship' in contrast to 'property' which is undefined. Section 18 of the Act of 1861 clearly recognizes the distinction between the expression 'ship' and 'other property'. Section 23 of the Act of 1861 recognises that the Admiralty Court would have all powers which were possessed by any of the Superior Courts of common law with regard to arbitration. If a common law court could exercise jurisdiction in respect of property other than ships, in so far as arbitration claims are concerned, then there could be no impediment against an admiralty court doing so. It is submitted that Section 33 empowers the Court to withhold release of any property under arrest. It is therefore clear that arrest is not confined to ships alone, since had that been the legislative intent, the expression 'ship' would have been used in Section 33. 47. It is further submitted on behalf of the Plaintiff that the exercise of the admiralty jurisdiction of the High Court can be traced to its Letters Patent. Relying on Clause 32 of the Letters Patent of 1865 and clause 53 of the Letters Patent of 1823, it is submitted that it is clear that historically from 1823, the admiralty jurisdiction of the High Court was related to the subject matter of the claim and not the property which could be proceeded against. So long as the cause before the High Court pertained to a claim which was recognized as falling within admiralty, jurisdiction could be exercised over any 'property' and the same was not restricted to a ship. 48. The Plaintiff relying on the decision of the Court of Appeal in the case of The Heinrich Bjorn 3 submitted that the Court of Appeal considered the historical development of the admiralty jurisdiction of the English Court and held that the admiralty jurisdiction could be exercised not only against the ship but any property of the Defendant within the realm. 49. 49. Relying on paras 14, 65, 66 and 89 of the decision of the Hon'ble Supreme Court in the case of M.V. Elizabeth 4 , it is submitted on behalf of the Plaintiff that the Hon'ble Supreme Court has considerably widened the jurisdiction of the Indian Admiralty Courts. The Judgment in the case of M.V. Elizabeth (supra) enables the High Courts of Admiralty to do justice by regulating the admiralty jurisdiction in accordance with well established principles of Transnational Maritime Law. The said judgment therefore widens the jurisdiction of the Admiralty Courts from the relatively limited jurisdiction that the High Court exercised under three colonial statutes. It is submitted that in so far as arrest of property other than ships is concerned, even under the less expansive jurisdiction available under the three independent colonial statutes, arrest of property other than ships was permissible. It is submitted that the Supreme Court has observed that whilst the colonial laws remained in force after independence, they should not be an excuse to stultify 3 1885 Law Reports Probate Division Vol. 10 Page 44 4 (1993) 2 SCC 433 the development of law in India. The Supreme Court therefore held that Indian High Courts had powers and the responsibility to develop procedure to do justice and therefore must look to other legal systems, and in particular to the Civil Law countries, to develop analogous procedures. 50. Relying on paragraphs 61 and 65 of the decision of the Hon'ble Supreme Court in the case of Liverpool & London S.P & I 5 , it is submitted on behalf of the Plaintiff that the Supreme Court has urged Indian Courts to look at not only at Civil Law countries, but also American decisions. The Plaintiff has relied on extracts from Arrest, Attachment and Related Maritime Law Procedures by William Tetley (Q.C.) published in 73 Tulane Law Review 1895, 199899, setting arrest procedures in England, Canada, the United States of America and France. The Plaintiff relied on the Division Bench decision of this Court in the case of M.V. Mariner IV 6 wherein the Hon'ble Division Bench relying on the decision in M.V. Elizabeth( supra) in paragraph 29 has held that: It is clear that every person, thing and foreign vessel entering Indian waters comes within the jurisdiction of the High Court of coastal state by the very act of its entering the Indian territorial waters. In such a case if any one has any maritime claim against the owners of offending ship then not only the offending ship but also any other property or ship belonging to such a person within Indian territorial waters, can be attached or arrested by the High Court of the coastal state. (emphasis 5 (2004) 9 SCC 512 6 (1998) 1 MhLJ 751 supplied). 51. It is therefore submitted on behalf of the Plaintiff that the observations of the Hon'ble Supreme Court and the High Court leave no doubt that the shackles of the old colonial laws must be broken and new procedures, in keeping with the requirements of a modern world, must be developed. It is submitted that the Supreme Court urged the High Courts to look beyond English Law to Civil Law countries and Transnational Maritime Law to develop new procedures to render justice. The Supreme Court and this High Court following it has therefore rightly held that the littoral High Courts have unlimited jurisdiction, unless specifically curtailed and the same could be exercised with respect to every person, thing and foreign vessel entering Indian waters. It is therefore submitted that there is no doubt whatsoever that this Court has the jurisdiction over all property entering Indian waters and therefore has the jurisdiction to arrest freight. 52. Referring to the decisions referred to and relied upon by Defendant No.3 i.e. The Victor, The Flora, The Cast legate, the Kaletan and The Beldis, it is submitted as follows: (i) The Victor: It is submitted that this case rather than assisting Defendant No.3 provides that (i) freight may be arrested; (ii) freight is arrested by arrest of cargo; and (iii) cargo may be released by providing security for the value of the freight. (ii) The Flora: It is submitted that it is pertinent to note that in this present case the Court has clearly laid down the procedure for arrest of freight. Freight is arrested by arrest of the cargo so as to make the owners of the cargoes/shippers pay into the court the freight due. Thus, contrary to Defendant No.3's submissions, freight is as a matter of course arrested by the arrest of cargo. Freight is arrested by arrest of the cargo so as to make the owners of the cargoes/shippers pay into the court the freight due. Thus, contrary to Defendant No.3's submissions, freight is as a matter of course arrested by the arrest of cargo. (iii) The Cast legate: It is submitted that the Court after reviewing authorities concluded that the master could not exercise a lien on the ship or the freight because the disbursements were not account of the ship as the payments were due from the charterers. Therefore, this case is wholly irrelevant. (iv) The Kaletan: It is submitted that in the said case, the Court inter alia concluded that (a) a warrant of arrest for freight could not be issued against the freight separate from the ship and cargo or the ship or cargo; and (b) the warrant could not be issued against freight already paid. (v) The Beldis: It is submitted that in the light of the decisions in Elizabeth and M.V. Mariner, this is not good law in India. However, it is pertinent to note that even the said decision admits that in Civil Law, any property of the person within its jurisdiction may be arrested. Further in this decision the Court held that the res need not necessarily be a ship: it may be cargo, or proceeds of a ship and cargo, and arrest of cargo may include arrest of freight. It is submitted that thus even the Beldis recognizes that arrest of freight is possible. 53. It is submitted on behalf of the Plaintiff that all the information in the Grey Page Intelligence Report which forms the basis of the present plaint is accurate and has been admitted as being so in the affidavit. It is further submitted on behalf of the Plaintiff that the balance of convenience is entirely in favour of the Plaintiff. As regards the submission advanced on behalf of Defendant No.5 that because of the arrest, under admiralty jurisdiction, innocent third parties would occasion harm/loss, it is submitted that every order under admiralty jurisdiction of this Court has the potential to affect third parties. However, this being a special jurisdiction, those considerations should not weigh on the mind of the Court. As regards the submission advanced on behalf of Defendant No.5 that because of the arrest, under admiralty jurisdiction, innocent third parties would occasion harm/loss, it is submitted that every order under admiralty jurisdiction of this Court has the potential to affect third parties. However, this being a special jurisdiction, those considerations should not weigh on the mind of the Court. The Plaintiff has therefore submitted that no case whatsoever is made out by the Defendants for vacating the order dated 7th January 2013 and the application for vacating the said order be rejected. 54. I have considered the submissions advanced on behalf of the Plaintiff as well as the Defendants as regards the arrest of freight. What is claimed by the Plaintiff in the matter is arrest of freight without arrest of ship or its cargo. The question to be considered is whether such arrest can be made having regard to (i) general principles of maritime law and/or (ii) the applicable provisions of statutory law. The Plaintiff has not shown or even claimed that there is any statutory law applicable in India which permits such arrest. 55. The Defendants have correctly pointed out that none of the statutes and/or conventions provide for this including the 1861 Act, the 1891 Act and/or the Brussels and Geneva Conventions. The Defendants have also rightly submitted that in the absence of privity and/or a right to proceed against a vessel, there is no right in a Plaintiff/claimant to proceed against either the ship and/or cargo and seek arrest thereof to bring in freight. The decisions in (i) The Victor (supra) and (ii) The Flora (supra), clearly imply that freight can be brought in only if there is an offence (breach of contract/tort) committed by the vessel thereby giving an entitlement to proceed against her. The decisions in David Morgan vs. The Cast legate (supra) and the commentary on Admiralty Jurisdiction and Practice by Nigel Meason, first Edition (pages 69 and 70) and the decision in Kaleton (supra), clearly support the Defendants that (a) the Court of Admiralty has no authority to grant process against freight simplicitor for the purposes of enforcing a maritime claim/lien upon it, save and except as consequential upon and in connection with process against the ship. Hence, if there is no right to proceed against the ship, there can be none against the freight; (b) The Admiralty Court has never recognized the possibility of there being a maritime lien upon freight which is not associated with or founded upon a right to proceed in rem against the ship and/or cargo; ( c) no process having for its sole object the attachment of cargo in order to enforce a maritime lien for freight can issue from the Court. Any claim in respect of freight is parasitic, in character and depends upon the entitlement to proceed against the vessel. 56. The Plaintiff has tried to distinguish the decisions cited by the Defendant No.3 and therefore I proceed to first consider the said decisions and the comments of the Plaintiff thereon. 57. The Victor: In this case a cause of collision was entered against the foreign ship, freight and cargo. A warrant was issued against the ship and freight only. The ship was arrested and the cargo was arrested for the freight. The ship was released upon appearance and bail being given for the owners of the ship. An appearance was thereupon entered for the freight and the freight paid into Court, and the surrogate was prayed to release the cargo. The value of ship and freight being insufficient to satisfy the damage, the Plaintiff prayed the surrogate not to release the cargo. The surrogate referred the question to the Judge who held that the cargo, even if it is the property of the owners of the ship, was not liable for the damage and must be released with costs and damages for the improper detention of it. Paragraph 76 of the said decision is relevant and reproduced hereunder: 76. The first question is, whether the cargo laden on board a ship doing damage, is like the ship itself, liable in this Court for the damage? I believe there is no precedent whatever to support the affirmative of this proposition. I believe that in former times it was not unusual to proceed by arrest of the person in the first instance, but I know of no instance in which the Court has arrested a cargo for the purpose of making good the damage done by the ship in which it was conveyed, and I conceive the reasons against such a course are most powerful. Damage is said to be done by the ship, but this is a mere form of expression; the truth being that it is done by the master or crew employed by the owner of the ship, who is therefore responsible for their conduct. But the master and crew are not the agents nor the servants of the owners of the cargo; upon what principle, then, are the owners of the cargo responsible? Again, nothing could be more inconvenient or more prejudicial to trade, than that the owners of merchandise should be made responsible under such circumstances. The property in goods on board is transferred by bills of lading, and it would most seriously interfere with mercantile transactions, if beyond the peril of the seas the owner of the cargo was exposed to the risk of losing his property by the vessel being improperly navigated, and he were made responsible for the misconduct of the master and the crew, over whom he had no control. I have no hesitation, therefore, in deciding against this general proposition, though I regret the urgency of the case has not given me opportunity for further investigation into the earlier practice of the Court; I mean the practice of the Court before the liability of British shipowners was limited by statute. The second question is, whether, supposing the cargo belongs to the owner of the ship doing the damage, the cargo can be attached to satisfy the decree of the Court against the ship. The only reason that can be suggested for such a proposition is, that, the owner of the ship being responsible for the whole extent of the damage, it is competent for this Court to attach his property wherever found, to levy upon his goods and chattels. But unquestionably the Court has no such power. Such a proceeding would be wholly without precedent. 58. The Plaintiff has submitted that this case rather than assisting Defendant No.3 provides that (I) freight may be arrested; (ii) freight is arrested by arrest of cargo; and (iii) cargo may be released by providing security for the value of the freight. In my view, this decision does not make out any principle of law as suggested by the Plaintiff. The Plaintiff has submitted that this case rather than assisting Defendant No.3 provides that (I) freight may be arrested; (ii) freight is arrested by arrest of cargo; and (iii) cargo may be released by providing security for the value of the freight. In my view, this decision does not make out any principle of law as suggested by the Plaintiff. On the contrary, the decision at para 76 page 40 holds that even if the cargo belonged to the owner of the offending vessel, the same (not being the offending property) cannot be a subject matter of attachment, and such a proceeding would be wholly without precedent. In fact, the Court goes on to hold but unquestionably the Court has no such power. I, therefore, see no merit in the Plaintiff's distinction of this decision. 59. The Flora : This is again a case of collision of a ship where the Court pronounced that Flora was to be solely blamed for the collision in question. The Court thereupon condemned the Flora and her freight and her owners, the Defendants, in damages and costs. The Court held, It is beyond all question that the cargo on board a ship which does damage to another ship in collision is in no respect responsible for the damage. It is equally clear that the freight due, the property of the owners of the ship doing the damage is attachable to make good that damage; and, in ordinary cases, the cargo is arrested for the purpose of making the owners of the cargo, who at that time owe the freight to the shipowners, pay into court to answer the damage which the latter are bound to make good. But the cargo is liable to arrest for no other purpose whatever. In the said decision the Court also held that it is only that cargo on which freight is in presenti due that can be proceeded against. 60. The Plaintiff has submitted that in the case of Flora the Court has clearly laid down the procedure for arrest of freight. Freight is arrested by arrest of the cargo so as to make the owners of the cargo/shippers pay into the Court the freight due. Thus, contrary to Defendant No.3's submissions, freight is as a matter of course arrested by the arrest of cargo. 61. Freight is arrested by arrest of the cargo so as to make the owners of the cargo/shippers pay into the Court the freight due. Thus, contrary to Defendant No.3's submissions, freight is as a matter of course arrested by the arrest of cargo. 61. As submitted by Defendant No.3, the legal principle enunciated in Flora is that freight cannot be pursued unless there is any cause against the offending vessel and/or her Owners (Defendant No.1). In the instant case, admittedly, there is no cause against Defendant No.1, and as such there can be no entitlement to proceed against her freight. In any event, as pointed out by the Defendant No.3, without prejudice to their contention, that the cargo cannot be arrested, the Plaintiff has in the present suit simplicitor sought arrest of bunkers and freight and not cargo. The Plaintiff's attempt to distinguish the said decision is therefore devoid of any merits. 62. The Cast legate: In this case, there was a Charter party which, inter alia, provided that the owners should provide and pay for all the provisions and wages of the Captain, Officers, etc. and maintain her in a thoroughly efficient state and the charterers should provide and pay for all the coals, port charges, piolatage, agencies, commissions and all other charges whatsoever. Thus as per the Charter party, the Charterer was to pay for all the fuel. At Port St. Vincent, coals were necessary for the prosecution of the voyage and at the Master's request the firm of Wilson Sons & Co. Ltd. who had contracted with Douglas Morgan & Co. for the supply of coals, supplied coal to the vessel. Wilson Sons & Co. Ltd. also at the Master's request paid for the necessary port charges. In respect of these necessaries, a bill for £ 313 was drawn by the Master in favour of Wilson Sons & Co. Ltd. upon Douglas H. Morgan & Co. On the homeward voyage, coal was again needed and a similar transaction took place with the same firm in respect of which the Master drew a bill for £ 1078. However, the charterers refused to pay. Wilson Sons & Co. Ltd. then instituted a cause of necessaries in the Local Admiralty Court against the vessel, cargo and freight. On the homeward voyage, coal was again needed and a similar transaction took place with the same firm in respect of which the Master drew a bill for £ 1078. However, the charterers refused to pay. Wilson Sons & Co. Ltd. then instituted a cause of necessaries in the Local Admiralty Court against the vessel, cargo and freight. The Master instituted the present cause of disbursements in the High Court of Admiralty of Ireland against the ship and freight claiming a lien thereon for recovery of the amount of the two bills under the provisions of the Merchant Shipping Act, 1889. The Court observed that the claim of the Plaintiff to a maritime lien rested upon the first Section of the Merchant Shipping Act, 1889 and his case was that these were disbursements and liabilities properly incurred by him on account of the ship, inasmuch as they were incurred for the purpose of procuring coals which were necessary to enable the vessel to prosecute her voyage as a steamer in the adventure in which she was engaged. The Court after reviewing authorities concluded that the master could not exercise a lien on the ship or the freight because the disbursements were not account of the ship as the payments were due from the charterers. 63. It is submitted on behalf of the Plaintiff that the said case has no relevance to the present case and in fact in the Kaleton's case, the observations at page 48 of the decision in Cast legate are rendered as obiter and the case of Cast legate deals with the maritime lien and not maritime claim. As submitted by Defendant No.3, the Plaintiff has while distinguishing the decision in Cast legate overlooked that the ratio of the decision in Cast legate is that unless and until the Plaintiff can establish a maritime lien (which is a specie of maritime claim) there cannot be a lien on the freight. In other words, a maritime claim against the ship is a sine qua non in exercise of Admiralty jurisdiction by the Court. As submitted by Defendant No.3, the Plaintiff's claim being a maritime claim and not a lien in fact Cast legate applies with great rigour. Every maritime lien is also a maritime claim albeit stands on a higher footing. Maritime lien is a specie of a maritime claim having higher rights. As submitted by Defendant No.3, the Plaintiff's claim being a maritime claim and not a lien in fact Cast legate applies with great rigour. Every maritime lien is also a maritime claim albeit stands on a higher footing. Maritime lien is a specie of a maritime claim having higher rights. On the issue that the observations at page 48 of Cast legate are obiter, as submitted by Defendant No.3, a subordinate court cannot hold the observations in Cast legate obiter. As submitted by Defendant No.3, in fact, Kaletan follows Cast legate on principle and the submissions of Defendant No. 3 in this regard find support in Nigel Meesons and John A. Kimbell's commentary on Admiralty Jurisdiction and Practice (First Edition) at pages 69 and 70. 64. The Kaleten: In this case the Plaintiff had instituted proceedings for arrest of freight for a claim of supply of necessaries to the vessel. The vessel had become a wreck, however, some of its cargo was saved and freight with respect to that cargo was paid by agents for the merchant to Messrs. Hoffman and the sum was held in an account in London Country and Westminister Bank. In this case four questions arose for the consideration of the Court : (i) Was the Writ good, that was to say, could the owners of the freight be sued apart from the owners of the ship or cargo?; (ii) Could a warrant of arrest be issued against freight without a warrant of arrest against the ship and/or the cargo?; (iii) Was the service of the warrant of arrest properly effected?; (iv) Was the service of the writ properly affected? The first question was kept open. With respect to the second question, the Court held that freight could not be arrested unless it could be said to be the res and the freight collected and paid into the Bank had ceased to be the res. The court further held that freight if it has been earned, the cargo is held so long as it remains unpaid. With respect to the third question, the Court held that freight could not be arrested without arrest of the cargo. With respect to the fourth question, the court held that freight could not be arrested unless there was access to cargo. With respect to the third question, the Court held that freight could not be arrested without arrest of the cargo. With respect to the fourth question, the court held that freight could not be arrested unless there was access to cargo. It is submitted by the Plaintiff herein that in Kaletan, the Court inter alia concluded that (i) a warrant to arrest for freight could not be issued against the freight separate from the ship and cargo or the ship or cargo; and (ii) the warrant could not be issued against freight already paid. As submitted by Defendant No.3 in the case of Kaletan, the English Court has in fact followed the decision in Cast legate and considered the issue of the Court's power to arrest freight. The Court concluded that warrant against freight cannot be issued separate from ship and cargo or ship or cargo. The Court followed the principle laid down in Cast legate and stated that no warrant of arrest for cargo so as to get at freight had ever been granted apart and separate from the warrant for the corpus of the ship. The attachment of the ship was an essential preliminary to the proper exercise by the Court, on the lien on freight. Hence, if there is no entitlement to arrest the ship, no action against her freight can lie. The distinction therefore sought to be advanced by the Plaintiff qua Kaletan also does not have any merit. 65. The Plaintiff's contention that arrest of freight is permissible under the Admiralty Courts Act, 1861, Admiralty Courts Act, 1890, the Letters Patent, 1823 and the Letters Patent, 1865 also cannot be accepted. None of the said Acts provide for any entitlement to the Plaintiff to arrest the freight. The Plaintiff admittedly not having a maritime claim against the Defendant No.2 vessel fails to cross the threshold entitlement in order to to invoke the admiralty jurisdiction of this Court. Strong reliance on the use of the word 'property' as against the word 'ship' also does not render any assistance to the Plaintiff. As submitted on behalf of Defendant No.3, if taken to its logical end, a maritime claimant would be in a position to invoke the admiralty jurisdiction of this Court even against the personal and/or civil properties of the owners of ships. As submitted on behalf of Defendant No.3, if taken to its logical end, a maritime claimant would be in a position to invoke the admiralty jurisdiction of this Court even against the personal and/or civil properties of the owners of ships. All the statutes relied on by the Plaintiff require a claimant's threshold compliance of having a maritime claim against that particular vessel i.e. Defendant No.2 herein (or its sister ship) to proceed in admiralty. In the present case, this compliance is completely absent. Again neither clause 53 of Letters Patent, 1823 nor Clause 72 of Letters Patent 1865 lay down the parameters of the Admiralty and Vice Admiralty jurisdiction of the Court. Nor do the Letters Patent provide that in the absence of privity, the jurisdiction of the Admiralty and Vice Admiralty Court can be exercised de hors the existence of a maritime claim against that vessel. As submitted on behalf of Defendant No.3, in fact, the Letters Patent is a procedural law to facilitate exercise of jurisdiction in aid of a substantive law. In the absence of a substantive law which entitles arrest of freight, the Plaintiff cannot derive any assistance from the Letters Patent. The submission that admiralty jurisdiction is not relatable to the subject matter of the claim and any property can be proceeded against in admiralty is a futile attempt to expand the substantive law of the Courts of admiralty by reference to provisions of procedural law. As submitted by Defendant No.3, even assuming whilst denying that the words try and determine of cases civil and maritime and all places of contracts, dehors exchanges, policies, assurances, accounts, charter parties, agreements, loading of ships and all matters and contracts which, in any manner whatsoever, relate to freight or money due to shipment hire and let out.. can be read to mean as being related to the nature of claim and not the property to be proceeded against, the same would render no assistance to the case of the Plaintiff because these words still necessitate the existence of a maritime cause and/or claim against that ship. Failing this, the jurisdiction of the Admiralty and Vice Admiralty cannot be invoked. If a technical interpretation of the Plaintiff is to be accepted, then, under the Letters Patent, there is no jurisdiction to arrest vessels. Failing this, the jurisdiction of the Admiralty and Vice Admiralty cannot be invoked. If a technical interpretation of the Plaintiff is to be accepted, then, under the Letters Patent, there is no jurisdiction to arrest vessels. The Defendant No.3 is therefore correct in its submission that such a technical interpretation by the Plaintiff is unreasonable and/or incorrect. All that Letters Patent 1823 and Letters Patent 1865 do, is to confer jurisdiction on the admiralty courts to take cognizance of, examine, try and determine certain types of maritime claims. This does not mean that these claims can be entertained contrary to the limited jurisdiction vested in the Admiralty Court by substantive law (whether enacted or enunciated). I am in agreement with the submission advanced on behalf of Defendant No. 3 that the Plaintiff's reliance on the Letters Patent can lead to absurd results because the Plaintiff states that by virtue of the word 'property' in Letters Patent, any property can be proceeded against in Admiralty. In other words, this is like saying that since, clause 15 of the Letters Patent permits an intra court appeal from the judgment of the single Judge, even what is not a judgment will still become appealable. As regards reliance by the Plaintiff on Rules 941 and 946 of the High Court (Original Side) Rules to assert that any property can be proceeded against in the Admiralty and that freight is a form of property, in fact the High Court (Original Side) Rules, 1980 (the Rules) recognise the position in English Law. Rule 946 (4) clearly states that services can be effected only upon cargo in respect of which freight is payable or on the ship in which the cargo was carried. Hence, privity and/or a right to proceed against the cargo/ship is an essential prerequisite to arrest freight. The Rules are procedural in nature, and per se do not give any right and/or entitlement to proceed against freight. In the absence of a substantive law giving rise to a right and/or entitlement to proceed against freight, the Plaintiff cannot seek refuge under the Rules. The Rules at best provide a mode for service against freight , if the same at all can be a subject matter of arrest. 66. In the absence of a substantive law giving rise to a right and/or entitlement to proceed against freight, the Plaintiff cannot seek refuge under the Rules. The Rules at best provide a mode for service against freight , if the same at all can be a subject matter of arrest. 66. The Plaintiff has submitted that the jurisdiction of the Bombay High Court in Admiralty is plenary; constitutional; and uncircumscribed save and except as may be provided by statute. According to the Plaintiff, this Court therefore in Admiralty would have jurisdiction to proceed against any asset and/or property of the owner of the offending vessel found in the territorial waters and/or jurisdiction of this Court. This argument is premised on three decisions i.e. M.V. Elizabeth (supra), M.V. Mariner (supra) and Liverpool & London S.P. & Association vs. M.V. Sea Success I and another (Sea Success's case). 67. The Plaintiff has relied on Elizabeth's case to contend that all jurisdictional limitation in Admiralty stand ceased; all species of property in India are capable of arrest in Admiralty jurisdiction; and all maritime claims can be enforced against any form of property through this Court's Admiralty jurisdiction. 68. It is submitted on behalf of Defendant No.3 that Elizabeth's case cannot be the basis of the Plaintiff's entitlement to arrest freight. This is because Elizabeth's case did not deal with any entitlement to arrest the freight. In absence thereof, the Plaintiff cannot invoke the ratio of the said decision to urge entitlement to arrest the freight. Elizabeth's case therefore does not operate as a precedent. Relying on the decision in Quinn v. Leathem 7 and Ambica Quarry Works vs. State of Gujarat and others 8 , it is submitted on behalf of Defendant No.3 that it is settled law that a case is only an authority for what it actually decides and not what logically follows from it. In the absence of any substantive law to arrest entitlement (either under the 1860 Act; 1890 Act and/or the arrest conventions of 1952 and 1999), the Plaintiff is not entitled to invoke the ratio in Elizabeth's case to cargo and entitlement to arrest freight. 69. In the absence of any substantive law to arrest entitlement (either under the 1860 Act; 1890 Act and/or the arrest conventions of 1952 and 1999), the Plaintiff is not entitled to invoke the ratio in Elizabeth's case to cargo and entitlement to arrest freight. 69. In my view, the essential argument before the Supreme Court in the case of M.V. Elizabeth was that the extent of the admiralty jurisdiction as conferred on the Indian High Courts remained frozen as on the date of the Admiralty Courts Act, 1861. The wider powers assumed by the British Courts under the subsequent statutes of that Country did not enlarge the Admiralty jurisdiction of the Indian High Courts. This argument was rejected by the Supreme Court. What the Supreme Court held in that case was: 7 (1901) A.C. 495 8 (1987) 1 SCC 213 (I) What the Colonial Courts of Admiralty Act, 1890 did was not to incorporate any particular English Statute (say, the Admiralty Courts Act, 1861) into Indian Law for the purpose of conferring admiralty jurisdiction, but to assimilate the competent Courts in India to the position of the English High Court in exercise of admiralty jurisdiction; (II) Any expansion of the Admiralty jurisdiction of the High Court in England was intended likewise to expand the jurisdiction of the Colonial Court of Admiralty; (III) The wide jurisdiction vested in the English Courts is derived from ancient principles of Maritime Law developed by custom and practice as well as from subsequent statutes many of which have incorporated the provisions of International Conventions unifying laws practiced in several maritime countries. (IV) It is likewise within the competence of the appropriate Indian Courts to deal in accordance with the general principles of maritime law and the applicable provisions of statutory law, with all persons and things found within their jurisdiction; (V) The power of the Courts, in this behalf, is plenary and unlimited unless it is expressly or by necessary implication curtailed. In the absence of such curtailment of jurisdiction, all remedies which are available to the Courts to administer justice are available to a Claimant against a foreign ship and its owner found within the jurisdiction of the High Court concerned. This power of the Court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment. 70. This power of the Court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment. 70. The questions, therefore which must be considered before an arrest can be ordered by an Indian Court are: (I) Is the remedy asked for available to the Court against the person or thing against which it is claimed? (II) If the answer is yes, is there any curtailment or regulation of power of the Court by means of Indian Municipal Law or International Law as applied by Indian Courts? The Plaintiff has not shown or even claimed that there is any statutory law applicable in India. 71. The Plaintiff has placed reliance on the Mariner's case to contend that an admiralty action can lie against any species of property. In Mariner's case, the question which arose for consideration of this Court was whether it had jurisdiction to order arrest of a sister ship in an admiralty suit. It is in answer to this that the Court considering the provisions of the Brussel's convention and Elizabeth's case, concluded that it had the powers to arrest a sister ship on the basis of the common maritime law of India (which would include the Brussel's convention). It is in the light of the above facts, that the observations in paragraphs 27 to 29 are liable to be construed. Paragraphs 27 and 28 consider the entitlement to arrest a sister ship and the reference to every person thing and foreign vessel entering Indian Water in relation to the principles of transnational law and international convention permitting to arrest a sister ship in common ownership. The other property would mean property appurtenant to the vessel such as her hull, tackles, etc. These observations cannot be construed to mean that every specie of property and/or asset of the owner (whether offending or not) is liable to for arrest in admiralty. 72. The Plaintiff has also relied upon paragraphs 97 and 98 of Sea Success's case. It is submitted that the jurisdiction of Indian Courts is not circumscribed by conventions; and is plenary in character and unfettered, save and except as may be circumscribed by statutes. On facts, the Sea Success's case dealt with an issue as to whether the insurance premium constitutes necessaries within the meaning of Section 5 of the 1861 Act, so as to sustain a maritime claim. On facts, the Sea Success's case dealt with an issue as to whether the insurance premium constitutes necessaries within the meaning of Section 5 of the 1861 Act, so as to sustain a maritime claim. This is apparent from the issues crystallized in paragraph 6 (page 524) of the decision. It is in this context and, after considering the 1861 Act and the Geneva Convention, that the Supreme Court held that, under the Geneva Convention, the restrictive interpretation of a maritime claim being limited to operation and maintenance of the ship had been removed. In the Sea Success case, relying upon the principles laid down in Elizabeth's case and applying the provisions of the Brussels and Geneva Conventions, insurance premium was held to be necessaries within the meaning of Section 5 of the 1861 Act and a claim for unpaid insurance premium to be a maritime claim. This decision is of no avail to a claimant like the Plaintiff, who is not in a position to derive sustenance either from the Brussels or the Geneva Conventions and/or from any other law to support its entitlement to arrest freight, much less in the manner sought to be done i.e without privity; without freight being due; and without any entitlement to proceed against the res. In absence of any such entitlement under the conventions and/or international law, it is correctly submitted that there is no entitlement to arrest the freight (much less, in the manner sought to be done by the Plaintiff) and the decision in the Sea Success's case is of no avail to the Plaintiff. 73. I am in agreement with the submissions advanced by Defendant No.3. Even the selected paragraphs relied upon and quoted in the written submissions of the Plaintiff clearly indicate that all that the Supreme Court is saying is that in order to render justice in accordance with substantive laws in cases of maritime liens and claims, the Courts should develop practical procedural devises and that the same is apparent from the following portion of the very same paragraphs relied upon by the Plaintiff of the judgments in M.V.Elizabeth; M.V.Sea Success and M.V. Mariner IV: M.V. Elizabeth. 65...... 65...... This is a practical procedural device developed by the Courts with a view to rendering justice in accordance with substantive law not only in cases of collision and salvage, but also in cases of other maritime liens and claims.... 66. It is likewise within competence of the appropriate Indian Courts to deal, in accordance with the general principles of maritime law and the applicable provisions of statutory law, with all persons and things found within their jurisdiction....: 89. The power to arrest a foreign vessel while in the waters of a coastal State, in respect of a maritime claim, wherever arising is a demonstrable and an essential attribute of territorial sovereignty. M.V. Sea Success 61. It is not correct to contend as has been submitted by Mr. Bharucha that this Court having regard to the decision in M.V. Elizabeth (supra) must follow the law which is currently prevalent in UK and confine itself only to 1952 Arrest Convention into Indian Admiralty Jurisprudence. The question is as to if the 1952 Arrest Convention had been applied keeping in view the changing scenario why not the 1999 Arrest Convention also?... MV Mariner IV 29..... In such a case if anyone has any maritime claim against the owner of the offending ship (emphasis supplied) then not only the offending ship but also any other property or ship belonging to such person within Indian territorial waters, can be attached or arrested by the High Court of the coastal state. Hence, even these paragraphs recognize that the cause of action and/or maritime claim and/or a substantive law right has to accrue against the offending ship. It is only after this threshold requirement is satisfied, that the Courts would have the requisite jurisdiction to entertain the admiralty action. 74. The Plaintiff has relied upon Section 202S (h) of the Supreme Court Act, 1981 (Senior Courts Act) to distinguish paragraphs 69 and 70 of Nigel Meeson's Admiralty Jurisdiction and Practice (First Edition). The Plaintiff has sought to contend that in view of Section 21 of the Supreme Court Act, 1981, the English Courts have a restrictive approach to arrest freight. However, the position under the English Law even prior to the Supreme Court Act, 1981 was the same as is evident from the decision of the English Courts in both the Cast legate and Kaletan. However, the position under the English Law even prior to the Supreme Court Act, 1981 was the same as is evident from the decision of the English Courts in both the Cast legate and Kaletan. There is therefore no justification in the Plaintiff's contention that it is in view of Section 21 of the Supreme Court Act, 1981, that the English Courts have taken a restrictive approach in arresting freight. In fact Section 21 of the Supreme Court Act, 1981, supports the contention of Defendant No.3. This is because, Section 21 of the Supreme Court Act, 1981 clearly necessitates a claim to arise in connection with a ship and it is only if a right against the ship can be founded that any process against freight shall lie. Section 21 of the Supreme Court Act, 1981 is in consonance with the sound principles of law enunciated in the cases of Cast legate and Kaletan. 75. As regards the articles entitled Arrest, Attachment and Related Maritime Law Procedures by William Tetley Q.C. relied upon by the Plaintiff, the Defendant No.3 is correct in his submission that the said article is only a comparative study of the powers of arrest, attachment and related maritime procedures in maritime law in diverse jurisdictions i.e. Canadian, American and English, and states that American Courts have assumed a wider jurisdiction than English and Canadian Courts; Indian Courts have largely followed the English Law, and even this article only describes the position in US law (rule B Procedure). However, this article does not progress the Plaintiff's case any further because, it does not in any manner support the entitlement to proceed against freight dehors of privity and/or entitlement to claim against the vessel Defendant No.2. 76. In the above circumstances I am of the view that an order arresting freight qua the cargo on board Defendant No.2 cannot be passed by this Court. In view of this finding, I have not considered the alternate argument advanced by the Defendant No.3 that freight which is not accrued cannot be arrested. I therefore pass the following order: (i) The Defendant No. 3 shall give security only to the extent of US $ 34692.80 being the value of bunkers owned by them on the date of arrest i.e. 7th January 2013. (ii) The order dated 7th January 2013 directing arrest of freight is vacated. I therefore pass the following order: (i) The Defendant No. 3 shall give security only to the extent of US $ 34692.80 being the value of bunkers owned by them on the date of arrest i.e. 7th January 2013. (ii) The order dated 7th January 2013 directing arrest of freight is vacated. (iii) Upon the Defendant No. 3 furnishing security as set out in clause (i) above, the order of arrest dated 7th January 2013 shall stand vacated and the Defendant No. 1 vessel shall stand released and allowed to sail immediately. (iv) Instrument of release to be dispensed with. (v) The Learned Advocate appearing for Defendant No.3 makes a statement that there is no caveat against release of the vessel. (vi) All parties including the Prothonotary and Sr. Master, High Court, Bombay and the Sheriff of Mumbai to act on an authenticated copy of the order. (vii) All concerned authorities, Port and Customs shall act on fax/email copy of authenticated copy of this order. (viii) Plaintiff to pay poundage to the Sheriff of Mumbai within a period of two weeks from today. (ix) Prayer (b) of the Notice of Motion is not granted since the said prayer is not supported by adequate particulars. However liberty to the Defendants to take out fresh Notice of Motion setting out all necessary particulars and seeking appropriate reliefs in this behalf. 77. Notice of Motion is accordingly disposed of.