A Division Bench of the Kerala High Court has dismissed a writ appeal filed by the Cochin Port Trust against a single judge order to release two dredgers hired by Jaisu Shipping to carry out capital dredging operations in the port's channel.
The Bench comprising Mr Justice V. K. Mohanan and Mr Justice C. T. Ravikumar held that the two dredgers do not belong to Jaisu Shipping.
In the absence of any specific clause in the contract saddling Jaisu Shipping with the liability to retain all the goods brought to the site for execution of work, the appellant (Kochi port) cannot be heard to contend that Jaisu Shipping is under a contractual obligation to retain the two dredgers – Kamal XXXV and Kamal XXXVI – at the site, the court said.
Writ appeal
The board of trustees of the port had submitted in the writ appeal that circumstances arising out of the failure on the part of Jaisu Shipping to execute the work in terms of contract created a situation compelling the port to terminate the contract. On the termination of the contract, Jaisu Shipping was under contractual obligation to retain at the site all the goods brought for the purpose of executing the work and the port is entitled to utilise such goods for completing the work, either on its own or through any such entity.
The London-based Clashmore Holdings, the charterer of the dredgers, who is also the first respondent in the writ appeal, submitted that the two dredgers had been underdetention of the port since April 1, following the failure of Jaisu Shipping to complete the capital dredging works. They were engaged by Jaisu Shipping to execute certain works based on the contract agreement with the port.
Huge loss
The company further submitted that it was incurring huge expenditure and loss since the dredgers arelying idle and the crew are on board and there is huge demand for their vessels in other parts of the world. The dispute between the port and Jaisu Shipping has to be resolved between them and that cannot be a reason to detain the two dredgers.
The Port Trust and Jaisu Shipping had entered into a contract for capital dredging of approach channel and ICTT berth basin to provide a draught of 14.5 metres on December 15, 2008. However, Jaisu Shipping could not execute the work completely within the period of contract despite being granted extension.