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2014 DIGILAW 983 (BOM)

Georim Oil Corporation v. M. V. Flag Mersinidi

2014-04-16

K.R.SHRIRAM

body2014
Judgment 1. This is an application taken out by defendant no. 3 who is the owner of the first defendant vessel-m.v. Flag Mersinidi (the said vessel) to set aside/vacate the order of arrest of the said vessel which was passed on 18.09.2012 and consequently for return of the bank guarantee furnished as security towards the plaintiff's claim. 2. The plaintiff's claim is for money due under a contract for the supply of bunkers to the said vessel at Tianjin, China. It is the case of the plaintiff that they had supplied a quantity of 448.800 mt of marine fuel-(MF)-380 to the said vessel. The plaintiff's claim is for US$ 3,08,774/- being the costs of the bunker supplied plus US$ 20,000/-being costs towards present proceeding in India. The plaintiff obtained the order of arrest relying upon Article 3 of the International Convention on Arrest of Ships, 1999 (1999 Convention) which provides as under:- Article 3 : Exercise of right of arrest: (1) “Arrest is permissible of any ship in respect of which a maritime claim is asserted if: ...(emphasis supplied) 3. The admitted position as averred in the plaint is that one J.H.Shipping Company Ltd., i.e., defendant no.2, who was the time charterer of the said vessel, on or about 10.08.2012 made a request to the plaintiff to provide them with a quotation for supply of bunkers to the said vessel at Tianjin, China. The 2nd defendant also provided the quantity and the specification of the bunkers to be supplied. The bunkers' specifications were provided as under: NOTE : BUNKER SPECS AS PER C/P : ISO 8217/2010 (E) – for IFO : RMG 380 with max Viscocity 380 CST at 50 degrees celcius. (emphasis supplied) 4. By an email dated 13.08.2012, the plaintiff confirmed to 2nd defendant that they will supply 450 MT of MF-380 at US$ 688 per MT and the supplier will be one Sinopec. The said email which is a confirmation between the plaintiff and defendant no.2 provides as under: “A. All suppliers are made under the our supply terms and conditions (2005 Edition) unless otherwise agreed in writing, which can be found on reverse side of our invoice and www.georimoil.com. The said email which is a confirmation between the plaintiff and defendant no.2 provides as under: “A. All suppliers are made under the our supply terms and conditions (2005 Edition) unless otherwise agreed in writing, which can be found on reverse side of our invoice and www.georimoil.com. B. Deliveries of marine fuels hereunder are delivered not only on the credit of the owner/charterer/master/the buyer, but also on the credit of the supplied vessel herself and the amount due shall become a maritime lien against the vessel immediately upon each delivery with signature of vessel's representatives made upon bunker delivery receipt of the physical supplier at loading port without any restriction of law at flag-nation and/or any charter party between owner and charterers. 5. The defendant no.3 admittedly is not a party to this confirmation. The applicable provisions in the general terms and conditions of sale and delivery (2005 Edition) which is the plaintiff's general terms and conditions read as under: …... 1.2 “Buyer” means the vessel supplied and jointly and severally her Master, Owners, Managers/Operators, Disponent Owners, Time charterers, Bare-boat Charterers and Charterers or any party requesting offers or quotations for or ordering Bunkers and/or Services and any party on whose behalf the said offers, quotations, orders and subsequent agreements or contract have been made. ….. 4.6 Bunkers are delivered under this contract not only on the credit of Buyer but also on the credit of vessel receiving delivery or the Bunker and it is agreed and buyer warrants that Seller has the right to assert and enforce a lien against the receiving vessel to the amount of the Bunkers provided plus without limitation, any other expenses related to enforcement of the lien. Buyer is presumed to have authority to bind vessel with a maritime lien. Disclaimer stamps placed by vessel on bunker receipt will have no effect and do not waive Seller's lien. …. 5.2 If the party requesting Bunkers are not the Owners or Bare boat charters of the vessel, the Seller shall have the right to insist as precondition of sale that a payment guarantee is provided by the Owner or Bare boat charterer. The Seller have the right to cancel any agreements with the Buyer at any time, if such payment, guarantee is not received upon request thereof from the Seller to Owner or Bare boat charterer. ….. 14 Governing law and Jurisdiction 14.1. The Seller have the right to cancel any agreements with the Buyer at any time, if such payment, guarantee is not received upon request thereof from the Seller to Owner or Bare boat charterer. ….. 14 Governing law and Jurisdiction 14.1. The provisions hereof shall be governed by the laws of United State of America and the parties agree to irrevocably submit to the exclusive jurisdiction of the United States of America Court and the court of any State wherein the receiving vessel (or any of her sister vessel) for the time being, may be found. 14.2 If any term or provision or any part thereof in these conditions shall be held to be illegal and unenforceable under any enactment or rule of law, such term or provision or part thereof shall, to that extent, be deemed not to form part of these conditions and the enforceability of the remainder of these conditions shall not be affected thereby. 14.3 The Seller reserves the right, as its sole discretion, to revise and amend the Terms and Conditions herein from time to time and without giving any notice. 14.4 The present contract shall be binding between Seller and any Buyer of bunker oil, unless anything to the contrary has been agreed to in writing, anyway provided however that Seller can substantiate that one copy of said contract has been forwarded to the joint contractor. 6. There is no averment in the plaint to show that the plaintiff had forwarded the contract to the defendant no. 3 (cl. 14.4 above). Mr.Dhond expressly agreed that there is no evidence that the plaintiff had forwarded the contract to the defendant no.3. Mr.Dhond also confirmed that the plaintiff neither sought nor did the defendant no.3 give any guarantee that they would pay for the price of the bunker (cl. 5.2 above). It is, of course also the plaintiff's case, that the said vessel was on time charter of defendant no.2 and it was defendant no.2 who had contracted to purchase the bunkers. In this case, the claim arises in connection with the supply of bunkers to the vessel. It is common knowledge that under a time charter whilst on hire, the charterer shall provide and pay for all the fuel. Mr.Dhond, counsel for the plaintiff also agreed with this. 7. In this case, the claim arises in connection with the supply of bunkers to the vessel. It is common knowledge that under a time charter whilst on hire, the charterer shall provide and pay for all the fuel. Mr.Dhond, counsel for the plaintiff also agreed with this. 7. On 13-08-2012 Sinopec supplied bunker to the said vessel at Tianjin, China as ordered by defendant no.2. The master of the said vessel acknowledged receipt by signing the bunker delivery receipt. At the same time, and admittedly so, the master has also put a stamp on the bunker delivery receipt as under: “The bunkers receipt of which are hereby acknowledged are accepted solely for the account of charterers of m/v Flag Mersinidi and not for the account of said vessel of her owners and accordingly no lien or other claim against said vessel or her owners can arise here from.” Therefore, the master had made it clear that the bunkers were accepted solely for the account of defendant no.2 and not for the account of the said vessel or defendant no.3. It was also made clear that no lien or other claim against the said vessel or her owners can arise due to the supply. 8. After delivery, invoice was also raised by the plaintiff on defendant no.2 and a reminder was also sent to defendant no.2 on 12.09.2012. When defendant no.2 did not pay, the plaintiff sent a message to the agents of defendant no.3 as “............Dear person in charge of m.v. Flag Mersinidi” where it was admitted that the vessel was on charter to defendant no.2 and the supply was made to the account of defendant no.2. The defendant no.2, despite that reminder, failed to pay and hence the owners of the said vessel have to pay. It is rather clear from this message that the Plaintiff is demanding payment from defendant no.3 only because defendant no.2 was not paying. Golden Union Shipping Co. S.A., the agents of defendant no.3 by their email dated 14-09-2012 denied liability and made it clear that the plaintiff should look to defendant no.2 for payment. On 18-09-2012, the suit was lodged and order of arrest of said vessel was obtained. The said vessel was released upon the defendant no.3 furnishing security on without prejudice basis. 9. S.A., the agents of defendant no.3 by their email dated 14-09-2012 denied liability and made it clear that the plaintiff should look to defendant no.2 for payment. On 18-09-2012, the suit was lodged and order of arrest of said vessel was obtained. The said vessel was released upon the defendant no.3 furnishing security on without prejudice basis. 9. Thereafter, the defendant no.3 filed a suit in Seoul Central District Court, 46th Civil Division, South Korea against the plaintiff. The suit primarily was to decide two issues, (a) whether the defendant no.3 had an obligation to the plaintiff for the payment of US$ 308,778.40/-(same amount as claimed in this suit) in respect of the bunker which had been supplied on 13.08.2012, which is the subject matter of this suit? And (b) whether the plaintiff in this suit being the defendant in the proceeding at Korea can claim maritime lien against the said vessel? The Court in Korea by a reasoned judgment delivered on 05-07-2013 held after hearing both the parties that the defendant no.3 (plaintiff in the proceeding at Korea) had no obligation to pay US$ 308,774.00/- to the plaintiff (defendant in the proceeding at Korea) in respect of the bunkers which has been supplied. 10. On the issue of maritime lien, the Court did not go into it. The Court felt, in the present proceedings the plaintiff has proceeded on the basis that they have a maritime lien against the said vessel and therefore this Court will decide that issue. The Plaintiff in the present suit which is a company incorporated in Korea and has its office in Seoul, Korea has not challenged the ruling of the court in Korea and hence that has attained finality. 11. The plaintiff's counsel argued that under section 13 of the Code of Civil Procedure (the Code), the judgment of the District Court in Korea is not conclusive. The reason being they fall under exceptions provided in Section 13(c) and (f) of the Code. The plaintiff's case is that the judgment of the District Court in Korea is (a) not founded on correct view of International law, (b) refuses to recognise applicable law of India and (c) sustains a claim founded on breach of law in force in India. The plaintiff's case is that the judgment of the District Court in Korea is (a) not founded on correct view of International law, (b) refuses to recognise applicable law of India and (c) sustains a claim founded on breach of law in force in India. In my opinion, which I will elaborate later, these are unsustainable arguments and the judgment of the District Court of Korea is conclusive inasmuch as defendant no.3 is not liable in personam to the plaintiff. Now what remains is whether the plaintiff has a maritime lien against the said vessel or not? 12. The plaintiff's claim is made in two parts : (a) the owner of the said vessel namely defendant no.1 is liable in personam and (b) in any event, the plaintiff has a maritime lien over the said vessel. 13. As regards 1st part, i.e., defendant no.3 is liable in personam, the Court in Korea has held that the defendant is not liable in personam. Therefore, it is not necessary to go into the various issues as to whether the general terms and conditions of the bunker supply contract is binding on defendant no.3 or not or whether the endorsement made by the master on the bunker delivery receipt disclaiming the owner’s or vessel’s liability is binding or not unless I come to a conclusion that the judgment delivered by the District Court in Korea falls under any of the exceptions provided under Section 13 of the Code and hence not conclusive. 14. Now let us consider whether the judgment delivered by the District Court in Korea is conclusive or not for the purpose of the present suit based on the submissions made by the counsel for the plaintiff: (a) Not founded on correct view of International law:- The counsel for the Plaintiff submitted that (i) the South Korean Court erred in applying South Korea law to the contract as the law of USA governs the supply contract and (ii) applying settled rules/tests of conflict of laws/private international law, Korean Law could never apply to the contract. In applying the same, the Korean Court judgment has violated Section 13 (c) because it is based on an incorrect view of international law. There is nothing in the affidavit in reply or in sur-rejoinder to show what is international law and that is applicable to the contract. In applying the same, the Korean Court judgment has violated Section 13 (c) because it is based on an incorrect view of international law. There is nothing in the affidavit in reply or in sur-rejoinder to show what is international law and that is applicable to the contract. Even the judgment delivered by the District Court in Korea does not say which international law was pleaded. Even assuming that US law is the international law, there is nothing to show that US law was even argued before the Court in Korea. The plaintiff which is a Korean Corporation participated in the proceedings as the defendant and after the judgment was delivered has not challenged the judgment of the Court in Korea and that has become binding on the plaintiff. Both the plaintiff and defendant no.2 are companies based in Korea. (b) Refusal to recognise applicable law of India and (c) Sustains a claim founded on breach of law in force in India: The defendant no.3 had filed a suit in Korea against the plaintiff for a declaration that they were not personally liable to the plaintiff. The Court in Korea held that the defendant no.3 was not personally liable to the plaintiff. The Court arrived at that conclusion because the Court held that the defendant no.3 was not bound by the contract as the consent of defendant no.3 which is the basic requirement of law was missing. The District Court in Korea also dealt with the principles of unjust enrichment. The Court has held that if goods were delivered to a third party in pursuance of a contract to so deliver, the third party cannot made liable on the contract. The District Court in Korea held “therefore, the person who provided the services under the contract cannot claim unjust enrichment against the third party who has benefited from it. 15. It also appears from the judgment of the Court in Korea that the plaintiff had argued that “the sale was on terms similar to a pledge and whether the vessel has been pledged”. The Court held “however, the person who has pledged his property to secure other’s obligation has no obligation to make payment of debts, thus, the defendants' allegations are groundless and thus dismissed”. The Court held “however, the person who has pledged his property to secure other’s obligation has no obligation to make payment of debts, thus, the defendants' allegations are groundless and thus dismissed”. Therefore, the Court held that even if there was such a pledge, a third party pledger takes no personal liability for the underlying debt which means he does not guarantee the payment but only pledges the vessel and therefore not personally liable. 16. Mr.Dhond, counsel for the plaintiff submitted that the Court in Korea has wrongly understood the proceedings before this Court. The Court in Korea has held that the present proceedings are only with respect to a maritime lien on the defendant no.1 vessel and whether the plaintiff is entitled to exercise maritime lien in the defendant no. 1 vessel and not on the issue of who is the debtor of the supplied bunkers. He further submitted that this is a clear misunderstanding and misstatement of the proceedings before this Court. The plaintiff has pleaded in the plaint that both defendant no.2 and defendant no.3 are jointly liable to the plaintiff and in addition to their personal liability the plaintiff has a maritime lien on the defendant vessel. If the judgment of the Court in Korea is carefully considered, it will be seen that the Court in Korea considered the claim before it, on merits, after rejecting the preliminary defence of the defendant to the suit (plaintiff herein) that this Court was seized of an identical suit which was prior in point of time (described as “international double suit”). This rejection was on the erroneous assumption that this suit was restricted to a 'maritime lien'. It is pursuant to a complete and total mis-appreciation and mis-conception of this suit and the Laws of India, that the Court in Korea proceeded further. The judgment of the Court in Korea is therefore violative of Section 13(c) because in analyzing the Indian proceedings, Indian Law is applicable. 17. I disagree with these submissions inasmuch as it can be at the most construed as a purported misreading of the plaint as to the ambit thereof that the suit herein is only relating to the maritime lien and does not dealt with personal liability. This cannot by any stretch of imagination be construed as misreading of Indian law. 17. I disagree with these submissions inasmuch as it can be at the most construed as a purported misreading of the plaint as to the ambit thereof that the suit herein is only relating to the maritime lien and does not dealt with personal liability. This cannot by any stretch of imagination be construed as misreading of Indian law. Moreover, even the relief sought in the plaint is only against the vessel, i.e., in rem and there is no prayer in personam against the owners. In fact in this suit there is not even a prayer for decree against the defendants. The plaintiff has proceeded on the basis that its right arise even without the personal liability of the owner. 18. Mr.Dhond also argued that the Court in Korea failed to consider the US law. There is nothing in the judgment of the Court in Korea to show that the US law was even argued. This cannot be in any case a ground under Section 13 of the Code because Section 13 comes to play only in case the International Law or Indian Law where it is applicable and certainly US Law is not International Law. 19. In the course of arguments Mr.Dhond also submitted that the matter of pledge is incorrectly considered by the Court in Korea. Though it is not a ground available under Section 13 of the Code, in my view, the Court in Korea has correctly come to the conclusion on this point. Moreover, the entire case of the plaintiff is that US law is applicable and the contract is governed under the US law. Mr.Dhondalso submitted that the said judgment does not take into account Section 70 of the Contract Act and, therefore, found on a breach of Indian law. There is nothing to show that the plaintiff argued Section 70 of the Contract Act in the Korean proceedings. In any case, the Court has considered the issue of unjust enrichment or goods delivered in credit sale and has held if goods were delivered to a third party in pursuance of a contract to so deliver the third party cannot made liable on the contract. Further in my view, Section 70 is not applicable at all in the present facts and circumstances of the case because the plaintiff has not supplied bunker to the said vessel by mistake. Further in my view, Section 70 is not applicable at all in the present facts and circumstances of the case because the plaintiff has not supplied bunker to the said vessel by mistake. Under Section 70 a non-contracting third party beneficiary cannot made liable under the contract. 20. In the circumstances, in my opinion, the judgment delivered by the District Court in Korea is conclusive and attained finality. The defendant no.3 is not liable in personam to the plaintiff. 21. MARITIME LIEN : At the outset, Mr.Dhond very fairly agreed that in India, the law does not recognise claim for supply of bunkers or claim for necessaries can have a maritime lien. Mr.Dhond's submission was that the bunker supply contract provides that the provisions thereof shall be governed by the law of United States of America and under clause 14.4, it is provided that the contract shall be binding between the seller and any Buyer........ and the buyer includes master, owner of the vessel through which bunker was supplied and hence the defendant no. 3 was bound by it. 22. Mr. Dhond further submitted that the transaction in issue was admittedly for supply of bunkers which were supplied to and received by the vessel. Because the vessel received the bunkers, and under Maritime Law a ship has an independent juridical personality independent from its owners, a subsequent disclaimer by the Master of the vessel is of no avail. According to Mr.Dhond, the moment the supply is effected, a contract between the plaintiff and the said vessel sprang into existence. Mr.Dhond submits that whether the disclaimer endorsed by the vessel or the pre-emptive avoidance of such a disclaimer described by the plaintiff should prevail can only be decided at the trial. As the plaintiff has in its terms and conditions mentioned about US Law as the applicable law and the defendant no. 2 has accepted the same, the US Law must be enforced. As there is privity with the vessel, the owners namely defendant no. 3 cannot argue there is no privity and hence US Law is validly incorporated and applicable. 23. I totally disagree with Mr.Dhond. A vessel cannot enter into any contract with anybody. Only an owner or person authorised by the owner can enter into a contract and bind the vessel. In law a vessel may be looked at as an independent juridical personality. 23. I totally disagree with Mr.Dhond. A vessel cannot enter into any contract with anybody. Only an owner or person authorised by the owner can enter into a contract and bind the vessel. In law a vessel may be looked at as an independent juridical personality. But to say that there is privity of contract with the vessel but not with the owners is stretching it too far and is incorrect. An action in remagainst a vessel can be maintained only if there is an underlying obligation of the owner and an action in personamis maintainable against the owner. The contract is between the plaintiff and defendant no. 2. Copy of the contract has not, admittedly, been even sent to the owner. There is not even an averment that the owner, defendant no. 3, has held out that they will be bound by the terms and conditions of the contract that has been entered into between the plaintiff and defendant no. 2. Therefore, it can never be accepted that U.S. Law is applicable vis-a-vis, the plaintiff and defendant no. 3. 24. Mr.Dhond submitted that under law as applicable in America, a person providing necessaries to a vessel on the order of the owner or a person authorised by the owner has a maritime lien on the vessel and the persons who are presumed to have authority includes the officer or agent appointed by a charterer. Therefore, the plaintiff has a maritime lien against the said vessel. He also submitted that under the US law, the maritime lien arises without personal liability of the owner. All these are immaterial because the underlying contract was not with the owner and US Law is not applicable vis-a-vis, the plaintiff and defendant no.3. 25. Nevertheless, US Law is contrary to what is held by the Apex Court in the matter of Epoch Enterreports Vs. m.v. Won Fu ( AIR 2003 SC 24 ) where the Apex Court had held that maritime lien requires personal liability of the owners. That is the same position in Canada as well and in England and Wales. If this Court has to apply foreign law, the plaintiff has to first plead that (a) there is a contract between the plaintiff and defendant no.3 and (b) he must plead that US law applies. This has to be pleaded as a fact since they are contrary to Indian Law. If this Court has to apply foreign law, the plaintiff has to first plead that (a) there is a contract between the plaintiff and defendant no.3 and (b) he must plead that US law applies. This has to be pleaded as a fact since they are contrary to Indian Law. There is no such pleading in the plaint. 26. An almost identical situation was considered by the Canadian Court of Appeals in the matter of World Fuel Services Corporation Vs. The Ship “Nordems” (CanLII-2011 FCA 73 (CanLII) delivered on 25.02.2011. In that case, the Court came to a conclusion that when the supplier knows that the ship was on charter, the supplier ought to take steps to ascertain whether the charterer (defendant no.2 herein) had the authority from the owner (defendant no.3 herein) to contract on their behalf or to bind their ship. The Court made that remark because the general terms and conditions in that matter like in the present case had recognized the possibility that the bunkers may have been ordered by and on account of the charterer who had no authority to bind the ship and/or owners. In this case also, the terms and conditions in clause 5.2 provided that if the party requesting for bunkers are not the owners or Bare boat charterers of the vessel, the seller shall have the right to insist as precondition of sale that a payment guarantee is provided by the owner or bare boat charterer and the seller had the right to cancel any agreement with the buyer at any time, if such payment guarantee is not received upon request thereof from seller to owner or bare boat charterer. The admitted position is no such request was made to the owner. 27. The Canadian Court also remarked that had the supplier followed the general provisions of its contract by insisting from the owner to guarantee payment which in other words before extending credit, the supplier would either have been paid or would not have delivered the bunkers at all. In this case, as the plaintiff knew that the defendant no.2 was only the charterer, it was not difficult for the plaintiff to expect that the defendant no.2 may not have any authority to bind the defendant no. 3. 28. In this case, as the plaintiff knew that the defendant no.2 was only the charterer, it was not difficult for the plaintiff to expect that the defendant no.2 may not have any authority to bind the defendant no. 3. 28. Mr.Dhond argued that the general terms and conditions of sale and delivery provided that the buyer is presumed to have the authority to bind the vessel and the owner and the disclaimer stamp placed by the master on the bunker receipt will have no effect to waive seller's lien and hence the plaintiff would claim maritime lien over the said vessel because under US law which is applicable to the contract there is maritime lien for supply of necessaries. The Canadian judgment of the Ship Nordems (Supra) and the English Judgment in The “Yuta Bondarovskaya” ([1998] Vol.2 LLR 357) give no weightage to the choice of law made in third party's contract. 29. The said vessel flies the flag of Greece. The 2nd defendant who ordered for bunkers is a Korean Corporation. The plaintiff on whom the order for supply of bunkers was made is a Korean Corporation. The supply was made in China by a Chinese company. There is no connection whatsoever with US law. 30. It is quite clear that the plaintiff and defendant no.2 had previous dealings. It is evidenced from Exh. 'H' to the plaint that the plaintiff is requesting defendant no.2 to make payment not only for the bunker supplied to the said vessel but also for two other vessels m.v. Marine Starts and m.v. Hyderabad. Under clause 5 of the general terms and conditions of sale, the plaintiff had reserved its rights to insist as precondition of sale that a payment guarantee is provided by the owner. Such payment guarantee would be necessary only if the plaintiff was not satisfied with the credit worthiness of defendant no.2 who placed the order. Mr.Dhond submitted that it was a right the plaintiff had reserved and had an option to exercise that right or not and nothing much turns out of the plaintiff not exercising the right. 31. The admitted position is the said vessel was on time charter to defendant no.2. It is universal knowledge that in a time charter, the bunker is supplied by the charterer. Mr.Dhond had also agreed to this. 31. The admitted position is the said vessel was on time charter to defendant no.2. It is universal knowledge that in a time charter, the bunker is supplied by the charterer. Mr.Dhond had also agreed to this. Ordinarily, it is the charterer who provides and pays for the vessel's bunkers whilst the vessel is on hire. It is for that reason, the plaintiff had inserted the clauses like 4.6, 5 and 1.2 in the general terms and conditions. In my view the plaintiff was satisfied with the credit worthiness of defendant no. 2 and hence did not ask for any guarantee from the owner/defendant no. 3, more so due to its earlier dealings with defendant no. 2. Otherwise, either the owner would have guaranteed payment or the plaintiff would not have supplied. If it had proceeded on the basis that the sale was on the credit of the vessel and guarantees a creation of lien on the vessel for the value of the bunkers delivered, the owners have also objected through the master by putting a rubber stamp to the delivery receipt. The rubber stamp expressly provides that the bunkers are accepted exclusively for account of charterers and not for the account of the said vessel or her owner and no lien or other claim against the vessel or her owner can arise therefrom. When the owner made it very clear that he is not going to pay for the bunker and the vessel is also not liable which is contrary to the representation made by the defendant no.2 that he had authority to bind the vessel with a maritime lien, the plaintiff ought to have protested. There is not even a shred of evidence to support that the plaintiff protested. The plaintiff has only submitted that their insertion in the contract for supply should prevail. Therefore, the only option the plaintiff had is to go against defendant no.2 for misrepresentation. 32. It is very clear from the Canadian judgment (supra) that an owner can be held liable only if the owners holds out to the supplier that the time charterer has been empowered to bind the credit of the owner or the said vessel. In my view that will be the position even under Indian Law. 32. It is very clear from the Canadian judgment (supra) that an owner can be held liable only if the owners holds out to the supplier that the time charterer has been empowered to bind the credit of the owner or the said vessel. In my view that will be the position even under Indian Law. Nothing prevented the supplier/plaintiff to enquire with the owner, when he admittedly knew that the supply was being made at the request of the time charterer, as to whether the time charter had authority to bind the ship or the owner. 33. In this case, there is not even an averment that the plaintiff made any attempt to contact the shipowner, i.e., defendant no.3 so as to ascertain whether the defendant no.2 is authorised to purchase bunkers on their behalf. In view thereof, the only inference that could be drawn is that the plaintiff did not make such an attempt particularly because it had the option to do so under clause 5.2 of its printed terms and conditions or if it did, it did not want to show. There is not even an averment in the plaint that the defendant no.3 by its conduct or behaviour let the plaintiff indeed think that defendant no.2 was authorised by them to purchase bunkers on their behalf. 34. It is also of significance that the plaintiff dealt at all times with the defendant no.2 only. The invoice for the supply of bunkers though addressed to the said vessel and/or owner/operator, C/o defendant no.2 was sent only to defendant no.2 and not to defendant no.3. If the plaintiff had presumed that the defendant no.2 had really authority to bind defendant no.3 an/or the vessel, the invoice would at least have the name of defendant no.3. In fact, there has been no contact between the plaintiff and defendant no.3 until the email of 13.09.2012 was sent to Golden Union Shipping Co. SA at Greece almost a month after the supply was made. In fact, even that was sent after the demand by email of 12.09.2012 was sent to defendant no.2 in which demand was not only for supply made to the said vessel but also for the supply to two other vessels was included. SA at Greece almost a month after the supply was made. In fact, even that was sent after the demand by email of 12.09.2012 was sent to defendant no.2 in which demand was not only for supply made to the said vessel but also for the supply to two other vessels was included. Therefore, the plaintiff for the first time contacted defendant no.3 only at the time when the plaintiff began to seriously consider a possible arrest of the ship by which time the plaintiff knew that defendant no.2 would not likely be able to satisfy the claim. Hence for the first time demand was made on defendant no.3 on 13.09.2012 and the suit was filed and order of arrest obtained on 18.09.2012. In my opinion there is nothing to show and in any case it is not even the case of the plaintiff, owners by its conduct or behaviour held out to the plaintiff that it would be responsible for the bunkers or the contracting party had its authority to bind them. 35. Since there is no contract between defendant no.3 and the plaintiff and defendant no.3 have not by their action or conduct misled the plaintiff into believing that defendant no.2 was authorised to act on their behalf, the choice of law provision namely clause 14.1 in the general terms and conditions of sale and delivery note entered into between the plaintiff and defendant no.2 should not be given any weightage. 36. The defendant no.3 is not liable in personam since the judgment of the District Court of South Korea is conclusive on the said issue. The said Korean Court has accepted the contentions that the defendant no.3 is not liable for the plaintiff's claim. The US law will not apply between the plaintiff and defendant no.3 for reasons mentioned above. In any event necessary pleadings are not there in the plaint that the Court must proceed on the basis of US law or Maritime law in US is the same as in India. 37. In the circumstances, this Court cannot apply US Law and hold that the plaintiff has a maritime lien on the said vessel. The notice of motion is disposed of in terms of prayer clauses (a) and (b), with costs. The plaintiff is directed to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) as costs to defendant no.3 within two weeks from today. The notice of motion is disposed of in terms of prayer clauses (a) and (b), with costs. The plaintiff is directed to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) as costs to defendant no.3 within two weeks from today. 38. The Prothonotary and Senior Master is directed to return the security within two week from today.