This application has been filed to vacate the order for the arrest of the vessels MV X-Press Manaslu and MV X-Press Resolve. The plaintiff carries on a business as a carrier of goods in containers and also acts as a feeder operator. During the course of its business the plaintiff entered into an agreement with the fifth defendant, Sea Consortium Pte Ltd. Under the agreement each party was to contribute two vessels which would be able to operate a twice-weekly service on a 14-day round voyage between the ports of Colombo and Chittagong. The plaintiff deployed two vessels, the MV Banga Bijoy and the MV Banga Banik, and the fifth defendant deployed two vessels, the MV Jaami and the MV X-Press Resolve.

On 27 December 2004 the plaintiff was informed by the fifth defendant that while the MV Jaami was berthing at Colombo on 26 December 2004 it was hit by a tsunami, as a result of which containers laden with cargo dropped into the sea and were washed away. The plaintiff held the fifth defendant responsible for all the consequences, including compensation for the cargo and the containers of the different main line operators. Upon a subsequent application of the plaintiff, the MV X-Press Manaslu and the MV X-Press Resolve were arrested by this Court as security for the plaintiff's claims.

In the application for vacating the order of arrest it was argued that no cause of action has been disclosed against the vessels and their owners, that the arrested vessels are owned by Manaslu Pte Ltd and Ceyspence (Pvt) Ltd respectively, and that no contract of carriage existed between the vessels or their owners and the plaintiff. It was further contended that the alleged loss and damage to the cargo carried by the MV Jaami was as a result of the tsunami, which was an Act of God relieving all parties from liability as carriers.

Held: Application to vacate arrest granted.

The admiralty jurisdiction exercised by this Court has been conferred on it by s 4(4) of the Admiralty Courts Act 2000. There appears to be no decision in this jurisdiction with regard to the question of beneficial ownership of a ship and accordingly guidance is to be sought from decisions in other jurisdictions. Section 4 of the Admiralty Courts Act 2000 appears to be a reproduction of s 3(3) of the Administration of Justice Act 1956 (UK). On the basis of English and Pakistani case law, a charterer does not fall into the category of a person who beneficially owned the ship.

The next question for determination is whether the MV Jaami is liable to the plaintiff for loss of the cargo. The agreement between the parties is subject to the provisions of the Hague Rules. The original Hague Rules was the outcome of an International Conference on Maritime Law held at Brussels in 1923, where a representative body of interested parties including British merchants and shipowners agreed on a body of Rules, henceforth known as the Hague Rules, which were enacted in the UK by the Carriage of Goods by Sea Act 1924. The same law was subsequently enacted verbatim as the Carriage of Goods by Sea Act 1925 (the Act) in British India, and now constitutes part of our law. The rules adopted by the Conference are embodied in the Schedule to the Act and are made applicable, except in so far as the Act provides otherwise, to contracts for the carriage of goods by sea. Section 2 of the Act relates to the application of the Rules and states: 'Subject to the provisions of this Act, the Rules set out in the Schedule (hereinafter referred to as "the Rules") shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Bangladesh to any other port whether in or outside Bangladesh'. Since the bill of lading for shipment of the goods was issued in Bangladesh and the MV Jaami sailed from Chittagong in Bangladesh, the shipment is subject to the provisions of the Carriage of Goods by Sea Act 1925.

Article 4.2 of the Schedule to the Act provides for 'rights and immunities' of a carrier. The Rules relieve the ship owner from liability for loss and damage due to certain specified excepted perils. Article 4.2.d provides that neither the carrier nor the ship shall be liable for loss and damage arising or resulting from Acts of God.

The damage caused to the vessel and to the cargo could not have been prevented by any amount of foresight and care reasonably to be expected from the carrier. No one can deny that the tsunami was an Act of God.