Kerala HC orders conditional arrest of MSC Polo II sister ship of MSC Elsa 3

Kochi: The Kerala High Court on Wednesday issued a conditional order of arrest of Liberian-flagged vessel MSC Polo II till its parent company deposits Rs 73.49 lakh towards a maritime claim for loss of cargo due to the sinking of MSC Elsa 3 off the Kerala coast.

Justice M A Abdul Hakhim delivered this order in a plea filed by a Kerala-based cashew company -- Sans Cashew India Pvt Ltd -- which has alleged that containers with its cargo were lost at sea when the MSC Elsa 3 sank between May 24-25.

The cashew company has claimed in its admiralty suit that the ship sank "due to its mechanical, technical defects or failure on account of lack of proper care and the unseaworthiness of the vessel, and/or due to improper stowage of the containers in the vessel on account of crew incompetence".

An admiralty suit is a plea filed with regard to maritime claims. The company claimed that both MSC Elsa 3 and MSC Polo II were sister vessels and owned by MSC Mediterranean Shipping Co SA.

It has claimed Rs 73,49,596 towards loss of its cargo. It also filed an interim application seeking the arrest of MSC Polo II till the amount it seeks or a security in respect of that is deposited in the court.

The shipping company urged the court not to issue an order of conditional arrest as it was going to submit the security for the amount before noon. It also claimed that the vessel -- MSC Polo II -- was located 14 nautical miles from the port and hence, beyond the jurisdiction of the court.

Rejecting the contentions, the court said no harm would be caused to the shipping company if a conditional arrest is ordered till the furnishing of the security.

The court also said that if the vessel was within the limits of the Adani Vizhinjam Port Pvt Ltd, as claimed by the cashew company, then it had to enforce the arrest of the ship.

"In view of the averments in the plaint and the documents produced therein and also the affidavit filed in support of the application, I am satisfied that an arguable maritime claim is made out by the applicant (cashew company) warranting a conditional order of arrest of the subject vessel," the court said.

"In view of the said facts, I am of the view that no harm would be caused by passing a conditional order of arrest till the furnishing of the security," Justice Hakhim said.

The court also ordered that Adani Vizhinjam Port Pvt Ltd "shall execute the warrant and effect the arrest, seizure and detention" of the vessel "along with its hull, tackle, engines, machinery, boards, bunkers, equipment, peripherals and other appurtenances".

"It is made clear that the warrant of arrest would be withdrawn and the conditional order of arrest would automatically be vacated once the amount is deposited or security is furnished by the 1st respondent in this court," Justice Hakhim said.

The court also issued notice to the owners of the MSC Polo II seeking their stand on the admiralty suit by July 21.

The MSC Elsa 3 had sunk approximately 14.6 nautical miles off Thottappally coast in Kerala's Alappuzha district while carrying 640 containers, including 13 with hazardous cargo and 12 containing calcium carbide.

It was also loaded with 84.44 metric tonnes of diesel and 367.1 metric tonnes of furnace oil, according to the Ministry of Defence.

The vessel sank with oil still trapped inside.

On June 11, Kerala Police registered a case of rash navigation against the ship's owner, master, and crew.

An FIR registered by the Fort Kochi Coastal Police Station states that the owners, master, and crew handled the vessel--which was carrying combustible and explosive cargo dangerous to human life and property--in a negligent manner, leading to its sinking.