The appellant, SOCAR Turkey Petrol Enerji Dagitim San Ve Tic AS (SOCAR), supplied the MV Amoy Fortune with bunkers upon the request of Force Twins Shipping (Force) on 3 October 2016. At that time the ship was time chartered to Transatlantica Commodities SA (Transatlantica).

Force regularly approached SOCAR to supply bunkers to various vessels. For vessels undertaking cabotage voyages, Force requested that SOCAR invoice it directly. In the case of vessels engaged in international voyages, Force requested that SOCAR invoice Sentex LDX (Sentex), an offshore company owned by Force.

Following the supply of bunkers to the ship, SOCAR issued an invoice to Sentex for USD 283,800.00 plus interest. The invoice was not paid and SOCAR arrested the ship on 16 March 2017. The ship was released after the shipowner’s P&I club provided security in the amount of USD 309,994.31 in the form of a letter of undertaking.

On 3 May 2017, the owner of the ship applied for the security to be returned on the grounds that SOCAR had no maritime claim against the ship and its owner. It contended the following. First, there was no privity of contract between it and SOCAR. Second, there was no personal liability on the part of the owner of the ship, which was essential for an action in rem. Third, there was neither a maritime lien nor a maritime claim against the ship and its owners. Fourth, SOCAR knew that cl 2 of the charterparty provided that the supply of bunkers was for the charterer’s expense. Fifth, the bunkering statement, signed by SOCAR, said that no claim or lien 'shall be raised therefrom against the charterers or owners'.

The judge granted the motion and ordered the release of the security. SOCAR appealed.

Held: Appeal allowed.

The court may reject a claim if it finds that it contains no cause of action. 'No cause of action' must be narrowly construed. The court’s power will only be used in exceptional circumstances where the court is sure the plaintiff has no arguable case.

Prima facie, necessaries supplied to a ship are presumed to be supplied on the credit of the ship. This presumption can be rebutted (Foong Tai v Burchester [1908] AC 458). The respondents are allowed to rebut this presumption by relying on cl 2 of the charterparty which provides that 'the charterer shall provide and pay for all the fuel except otherwise provided'. However, these are matters to be decided on evidence and not at an interlocutory stage.

The following claims give rise to a maritime lien at common law: damage done by a ship, salvage, seamen’s wages, master’s wages and disbursements, bottomry and respondentia. A maritime lien is defined in the International Convention on Maritime Lien and Mortgages 1993 (MLM 1993) in art 4.1.a-e in similar terms. The supply of bunkers does not give rise to a maritime lien.

A maritime claim is not defined by Indian statute. However, the Supreme Court will follow the provisions of the Supreme Court Act 1981 (UK) where maritime claims are listed on the basis of the Arrest Convention 1952. Article 1.k includes as a maritime claim, 'goods or materials whether supplied to a ship for her operation or maintenance'. In MV Elisabeth (MANU/SC/0685/1993) (CMI883) the Supreme Court held that the provisions of the Arrest Conventions should be regarded as part of international common law and that the provisions 'supplement' and 'complement' the maritime law of India and fill the gaps in the Merchant Shipping Act.

The supply of bunker oil falls within the category of necessaries supplied to a ship. As SOCAR did not receive payment for the supply of the bunker oil, it has a maritime claim against the ship. While the defendant asserts there was no privity of contract between it and SOCAR, it is not possible to form a conclusive conclusion on this issue at an interlocutory stage of proceedings. It can only be dealt with after leading evidence.

The impugned order is set aside. The observations in this judgment are prima facie in nature and shall not affect the final adjudication of the issues in the suit.