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Before Ajmal Mian, Actg. C J
ALEEM AHMAD ANSARI AND 2 OTHERS‑Plaintiff
versus
M. v. ASHAR AND 3 OTHERS ‑Respondents
Admiralty Suit No. 3 of 1984, decided on 17th August, 1985.
‑‑ S. 3 (2) (n) ‑ Evidence ‑ Unchallenged testimony of witness Effect‑ Filing of suit and obtaining order of arrest of vessel- Testimony of witness that 2/3rd of vessel was scrapped, not challen ged by plaintiff either by filing counter‑affidavits or through cross- examination of defendant's witness ‑Presumption, held, would be that 2/3rd of vessel was dismantled at time of filing of such suits. (Evidence].
‑‑ Ss. 2 (k) & 8 (1)‑General Clauses Act (X of 1897), S. 3 (56)‑ Word "ship", definition of‑"Ship includes any description of vessel used in navigation"‑Every floating structure in water, held, could not be considered ship or vessel‑To bring such floating structure within ambit of definition of ship, requirement would be that floating structure has to be navigable. ‑[Words and phrases].
Ghulam Nabi v. Khuda Bux and 2 others P L D 1984 Kar. 245 ; Polpen Shipping Company Limited v. Commercial Union Assurance Company Limited I K B (1942) 161 ; Canada v. The Cum 5erland Railway and Coal Company (1910) House of Lords (P C) 208 ; Wells and another (Paupers) v. The Owners of the Gas Float Whitton No. 2 (1897) A C 337 and The Craighall 1910 C A (Probate Division) 207 ref.
‑‑ S. 3 (2)‑Delisting of vessel‑Effect‑Such delisting from Registry of country of flag, held, would not alter character of vessel or render same as non‑navigable‑Dismantling of 2/3rd of vessel, however, would render such vessel as non‑navigable‑Suits against such ships would be competent, if plaintiff had maritime lien over vessel.
‑ Ss. 3 (2) & (4)‑"Maritime lien," right of‑Jurisdiction of High Court‑Maritime lien being. a well‑recognized right not extinguished by enforcement of Ordinance XLII of 1980‑ Such lien preserved intact by statute‑High Court, held, was empowered to exercise admiralty jurisdiction to same extent as was exercised by High Court before commencement of Ordinance XLII of 1980 ‑Statute, however, has conferred express jurisdiction over High Court to enforce mari time lien.
Halshury's Laws of England, Third Edn,, Vol. 35, p. 782 ref.
‑‑ S. 3 (2) & (4)‑"Maritime lien", right of‑Such right, held, is attached to res and to every part of vessel and would extinguish when there was total destruction of vessel and not when same was partially destroyed.
Lady Durham, 3 Hagg, 195 ; Neptune' 1 Hagg A. R. 238 ; Neptune' 1 Hagg, 236 and British Shipping Laws, Vol. 14, 1980 Edn. By D. R. Thomas ref.
‑‑ Ss. 3 (2) & 4(4)‑Action in rem, maintainability of‑Action in rem, held, could be maintained against person who would be liable on claim for action in personam when cause of action arose‑‑‑To enforce such action, however, at time action was brought, vessel should be beneficially owned in respect of majority shares by that person‑Right to sue in rem was in addition to right of maritime lien.
Messrs .Sun Line Agencies Limited v. Vessel m. v. Psiloritis and 2 others 1984 C L C 1553 and Global Snipping Co. (Pvt.) Limited v. m. v. Sea Elite and others 1985 C L C 1569 ref.
‑‑ S. 4 (4)‑Purchaser of vessel, liability of‑Suit against purchaser of vessel, held, was competent as maritime lien was attached to vessel, certain portion whereof was in existence at time suits were filed.
‑‑ S. 3 (2)‑Claim of maritime lien, nature of‑Requirement that maritime lien could only be claimed in respect of wages earned on board the vessel, having been omitted by Ordinance XL‑11 of 1980, plaintiff, held, had maritime lien on vessel.
‑‑ S. 3 (2)‑Civil Procedure Code (V of 1908), O. VIII, r. 6 Written statement referring to suit filed by defendants against plain tiff for claim of damages‑Defendants alleging that in referred suit they had made adjustment of plaintiff's claim of wages‑In absence of any judgment of competent Court of law as to right of defendants to claim damages from plaintiff, suit filed by plaintiff for claim of wages, held, could not be defeated.
‑‑ S. 3 (2)‑Claim of shorthand wages‑Plaintiff not examining master of vessel nor citing any terms of contract on record or any provision of law upon which such claim was founded‑Salary bills prepared by master of vessel and filed by plaintiff not reflecting short hand claim made by plaintiffs‑Failure of plaintiffs to examine master of vessel, citing any terms of contract or any provision of law, held, would disentitle plaintiff to claim shorthand wages.
‑‑ S. 3 (2)‑Rate of foreign exchange‑Determination of‑In absence of evidence about rate of foreign exchange at relevant time, rate of exchange mentioned in letter from master of vessel to plaintiff's which had also been acted upon by parties during currency of employment agreement, held, would hold ground.
‑‑ S. 3(2)‑Articles of agreement, non‑signing off‑Effect‑In absence of evidence on record to prove that without signing off Articles of agreement, plaintiff could not have taken another job, plaintiff, held, could not be deemed to be in defendant's services.
‑ S. 3 (2)‑Claim of wages‑Plaintiff, held, could claim fifteen days' salary in lieu of notice of fifteen days, whereby services of such plaintiff could have been terminated by defendant‑Plaintiff having not completed one year service, held, was not entitled to claim leave wages on basis of letter of appointment.
‑‑‑ S. 3 (2)‑Merchant Shipping Act (XXI of 1923), S. 44‑Claim of wages‑Lower cadre officer officiating as higher cadre officer Claim of wages as higher cadre officer during specified time‑Such plea not taken in written statement‑Wage account prepared by master of vessel not challenged by plaintiff prior to suit ‑Such wage account prepared by master of vessel, held, was binding on plaintiff in absence of any express plea or evidence on record.
M. Shaiq Usman for Appellants.
Abdul Rauf and Shakeel Ahmad for Respondents.
Dates of hearing : 3rd and 10th August, 1985.
By this judgment I intend to dispose of the above three suits as they involve some common points of law. The brief facts leading to the filing of the above suits are as follows
1. Admiralty Suit No. 2 of 1984.‑The plaintiff was appointed as Second Officer by the defendant No. 3 on behalf of defendant No. 2 on board the vessel, defendant No. 1, which was flying flag of Honour as and was named as "m. v. Ashar" (hereinafter referred to as the Vessel') on 29th September, 1983 at U. S. dollars 600 per month being the basic wages. As per averment in the plaint, the plaintiff was also entitled to the accumulated leave wages at the rate of U. S. dollars 150 per month upon completion of one year. The above wages were increased to U. S. dollars 760 w. e. f. 3rd March, 1984. Consequently, :he leave wages were to increase proportionately i. e. U. S. dollars 190 per month in place of U. S. dollars 150 per month. At the request of the plaintiff, the defendants Nos. 2 and 3 remitted two payments of U. S. dollars 800 and 1,000 to a Bank in Pakistan, nominated by the plaintiff. It has also been averred that till the joining of a Chief Officer, staff of the vessel was deficient by one certificated Officer thereby entitling the plaintiff and other officers on board to shorthand wages which as per averment of the plaint, the plain tiff's share comes to U. S. dollars 586.66. It has also been averred that upon arrival of the vessel at Karachi, the plaintiff was asked to relinquish his duties on the vessel and to report to the defendant No. 3's office for formalities of signing off from the Articles of agreement. It has been further averred that the defendants Nos. 2 and 3 did not pay the balance of wages and other dues and also did not sign off from the Articles of agree ment. The plaintiff has, therefore, filed the above suit on 24th September, 1984. Alongwith the above suit, he also filed an application for the arrest of the vessel which was then beached at Gandani for dis mantling. The order of arrest was made on 25th September, 1984. The plaintiff in the suit has claimed the above items totalling U. S. dollars 7,578.07 equivalent to Rs. 1,08,214.83 converted at the rate of Rs. 14.28 per U. S. dollar.
2. Upon the service of the arrest order the defendant No. 4, the pur chaser of the vessel, furnished Bank Guarantee of the suit amount and got the vessel released with the object to continue dismantling process of the vessel which was going on when the arrest order was made. The defendants Nos. 2 and 3 filed a joint written statement, whereas, the defendant No. 4 filed a separate written statement. However, in both the written statements, mostly common pleas have been raised. It has been averred that the vessel was sold by the defendant No. 2 as a scrap to defendant No. 4 free of all liens, encumbrances and liabilities by a legal bill of sale duly notarised by Pakistan Embassy in United Kingdom and that the defendant No. 4 has paid all customs duties and taxes. It has been further averred that the vessel was out of charge of custom posses sion on or about 26th August, 19134. It has also been averred that the vessel having been delisted and deleted from the record of post Registry is no more a vessel. It has been further averred that on the date of service of notice of the arrest and of the suit, nearly 2/3rd of the vessel had been scraped. It has also been asserted that under the Admiralty Jurisdiction of High Court Ordinance, 1980 (hereinafter referred to as the Ordinance'), ship includes any description of the vessel used in navigation and that upon scrapping nearly 2/3rd of the vessel and delisting of the same, the same could not be used for navigation. It has also been averred that the defendant No. 2 has filed Suit No. 498/84 in the High Court of Sind against the above plaintiff and the plaintiffs in the other two connected suits for the losses occasioned by the above plaintiffs on account of their breach of duties etc. and that the amount due to the above plaintiff has been adjusted by the above defendant in his claim in the aforesaid Suit No. 498/84. It has further been averred that the plaintiff had obtained the order of arrest by suppression of facts and by making gross misrepresen tation which resulted in stoppage of scrapping work for more than six days causing loss for over Rs. 2,25,000. It has also been averred that the defendant No. 2 was claiming the above amount, but factually, no counter claim was filed, nor any court‑fee was paid.
3. Admiralty Suit No. 3 of 1984.‑The plaintiff was appointed as Additional Chief Engineer on 13th November, 1983 by the defendant No. 3 on behalf of defendant No. 2 on board the vessel, the defendant No. 1 at U. S., 1,280 per month basic wages and 320 leave wages upon completion of one year. The plaintiff proceeded to join the said vessel on 15th November, 1984 at the Port of Chittagong as it was anchored there. The plaintiff was promoted to the rank of Chief Engineer on 1st January, 1984. Consequently, his salary was increased to U. S. 1,440 p m. and as per averment in the plaint, the leave wages were increased to U. S. 360 per month. The plaintiff completed the probationary period on 14th May, 1984. At the request of the plaintiff, six payments amounting to Rs. 62,664 were remitted to a Bank in Pakistan, named by him at the rate of one U. S. dollar equivalent to Rs. 12.5329. It has been averred that the cheque for the 7th remittance amounting to U. S. S 1,000 was dishonoured. The plaintiff resigned from service on 15th May, 1984 by serving two months notice in terms of the service agreement. The plaintiff upon the arrival of the vessel at Karachi Port was relieved of his duties but as per averment of the plaintiff, he was neither paid his dues, nor the defendants signed him off from the Articles of Agreement. Consequently, the plaintiff has filed the above suit on 24th September, 1984 for U. S. 5 7,816.58 equivalent to Rs. 1,15,619.16 converted at the rate of Rs. 14.28 per U. S. dollar. The plaintiff also filed an application for arrest of the vessel and obtained an order of arrest of the vessel on 25th September, 1984.
4. In the above suit also, the defendants Nos. 2 and 3 have filed a joint written statement, whereas, the defendant No. 4 has filed a separate written statement. They have raised identical pleas which they have pleaded in the above earlier Suit No. 2 of 1984. The defendant No. 4 in this suit also furnished a Bank Guarantee of the suit amount for obtaining release of the vessel.
5. Admiralty Suit No. 4 of 1984.‑The plaintiff was appointed as Chief Officer on 23rd May, 1984 by the defendant No. 3 on behalf of defendant No. 2 on board the vessel, the defendant No. 1 and he signed the Articles of Agreement. The plaintiff proceeded to join the said Vessel on 28th May, 1984 at the Port of Mogadiscio upon making of the arrangement by the defendant No. 3. He was employed at U. S. 1,040 per month as his wages. The plaintiff resigned from service on 12th July, 1984 by giving one month notice as per terms of the service contract. The plaintiff was relieved of his duties upon the arrival of the Vessel at the part of Karachi on 25th July, 1984. It has been averred that the defendants have neither signed off the plaintiff from the Articles of Agreement, nor paid his dues. He has, , therefore, filed the above suit for the recovery of U. S. 3,240.80 equivalent to Rs. 46,278.62 conver ted at the above rate of one U. S. dollar equivalent to Rs. 14.28.
6. In this suit also, the plaintiff had obtained an order of arrest of the vessel on 25th September, 1984. The defendants Nos. 2 and 3 have filed a joint written statement averring therein the pleas already referred to hereinabove. The defendant No. 4 in this suit also, furnished a Bank Guarantee for obtaining the release of the vessel, which was in the process of dismantling at Gadani Beach.
7. On the basis of the pleas of the parties on 8th December, 1984 as many as fifteen issues were framed in Suits Nos. 2 of 1984 and 3 of 1984 and ten issues in Suit No. 4 of 1984. However, on 3rd August, 1985, by consent of the learned counsel for the parties, I re‑framed the following three issues: ‑
(i) Whether the suit is not covered under the provisions of Admiralty jurisdiction of tile High Courts Ordinance, 1980
(ii) Whether the plaintiff had any maritime lien on the suit vessel for his alleged claim
(iii) What amount, if any, the plaintiff is entitled
8. It may be observed that in support of the suits, each of the plain tiffs examined himself, whereas, the defendant No. 4 examined one witness, namely, Farooq son of Ibraheem.
9. I would take up issues in seriatim as given hereinabove.
Issue No. 1 And Issue No. 2.‑In support of the above issue, it was vehemently urged by Mr. Abdul Rauf, learned counsel for the defendants that the suits are not covered under the provisions of Admiralty Juris diction of the High Court Ordinance, 1980 as at the time of filing of the above suits, the vessel was no longer a ship within the purview of clause (k) of section 2 of the Ordinance, which provides that ship includes any description of vessel used in navigation It has been further urged by him that, admittedly, at the time of filing of the above suits, the vessel was already delisted and 2/3rd of the vessel was already dismantled and, therefore, by no stretch of imagination, the above vessel can be said to be capable of being navigable. He has referred to para. 6 of affidavit of Muhammad Farooq son of Ibraheem dated 30th September, 1984 filed in response to the arrest order of the vessel, para. 12 (ii) of defendant No. 4's written statement and the statement of the defendant s above witness Muhammad Farooq, to point out that the averment contained in the above documents and the statement of the witness to the effect that 2/3rd of the vessel was already scrapped and that this averment has not been challenged by the plaintiffs either by filing any counter‑affidavit or in the cross. examination of the defendant's above witness. He has, therefore, submitted that the above fact is deemed to have been admitted by the plaintiffs. To reinforce the above submission, he has referred to the case of Ghulam Nabi v. Khuda Bux and 2 others (P L D 1984 Kar. 245) (Sukkur Bench), in which, a D. B. of the Sind High Court, to ‑ which I was a party, held that if the respondents failed to deny the averments made by the petitioner, in his affidavit on Oath, the same are presumed to be true. The factum that the vessel was in the process of dismantling when the above suits were filed and the order of arrest was obtained, was not even contested by 1A the learned counsel for the plaintiffs before me. It is, therefore to be f presumed that 2/3rd of the vessel was dismantled at the time of filing of the above suits.
10. Mr. Abdul Rauf, learned counsel for the defendants has referred to the following cases in furtherance of his above submission that since the vessel ceased to be navigable, it was no longer a ship within the ambit of above clause (k) of section 2 of the Ordinance :‑
(i) Polpen Shipping Company Limited v. Commercial Union Assurance Company Limited 1 K B (1942) 161, in which, the question before a learned Single Judge of the Kings Bench was, whether a flying boat was a ship or vessel within the meaning of insurance policy under which the plaintiff was claiming on account of collision between the vessel and the above flying boat. It was held that a ship or a vessel is a hollow structure intended to be used in navigation, that is, to do its real work on the seas or other waters and capable of free and ordered movement thereon from one place to another. It was further held that flying boat did not fit in within the definition of ship and vessel and, therefore, there was no collision between the two vessels in terms of the insurance policy.
(ii) The St. John Pilot Commissioners and the Attorney‑General for the Dominion of Canada v. The Cumberland Railway and Coal Company' (1910) House of Lords (P. C.) 208. In the above case, the respondent's vessels (about 440 tons each) built for the purpose of carrying coal and carrying sails so as to be able to run before the wind, but not so as to be safely navigated in the ordinary way as sailing vessels, and were towed by a steam tug in and out of the port of St. John. The respondents filed an action for the recovery of pilotage dues paid by them under the Pilotage Act. It was held that the respondents were not entitled to the refund as they were not exempted under section 59 of the said Act as their vessels were not ships propelled wholly or in part by steam.
(iii) Wells and another (Paupers) v. The owners of the Gas Float Whitton No. 2 (1897) A. C. 337, in which, the question before the House of Lords was, whether a Gas Float shaped like a boat (neither intended nor fitted to be navigated and it was moored in tidal waters to give light to Vessels and went adrift in a storm), was a ship, subject of a claim for salvage within the Admiralty jurisdiction. It was held that the jurisdiction of the admiralty over salvage does not extend to all property exposed to perils of the sea and used to assist navi gation and that the aforesaid Gas Float was not a vessel/ship navigable.
(iv) The Craighall 1910 C. A. (Probate Division) 207. In the above case, the owners of a landing stage in the river Mersey brought an action against the defendants, owners of a steamship, to recover the amount of damage sustained by them in consequence of the fact that their landing stage was hit by the defendant's steamship. The question before the Court of appeal of England was, whether the landing stage was a vessel within the meaning of Rules of the Supreme Court, 1883, Order XIX, rule 28, as to warrant maintenance of action under the Admiralty jurisdiction. It was held, that in order to attract the above Order XIX, rule 28, there must be two vessels in collision and that the landing stage was not a vessel and, therefore, the action was not competent.
11. It may be stated that the Ordinance is more or less reproduction of the British Administration of Justice Act, 1956 with certain additions and modifications, in which, in subsection (1) of section 8, the word ship' has been defined in identical language as has been employed in clause (k) of section 2 of the Ordinance i. e. ship includes any description of vessel used in navigation'. It may also be pointed out that tin clause (56) of section 3 of the General Clauses Act, 1897, the word vessel' has been defined as vessel shall include any ship or boat or any other description of vessel used in navigation'.
12. From the definition of the word ship' given in the Ordinance in the B British Administration of Justice Act, 1956, definition of the 'vessel' given in the General Clauses Act, 1897 and from the above‑cited cases, it is evident that every floating structure in the water cannot be considered as a ship or vessel, but in order to bring a floating structure within the ambit of the, definition of the ship in the Ordinance or the aforesaid Act, or within they purview of clause (56) of section 3 of the General Clauses Act, it is necessary that the floating structure should be navigable. In other words, the floating structure should be capable of encountering perils of sea and should have characteristic of a vessel.
It may be observed that simpliciter delisting of a vessel from the Registry of the country of which, it flies the flag, would not alter the C character of the vessel and would not render it in practical terms non navigable, but dismantling of 2/3rd of a vessel would render it non‑' navigable. In the instant case, as the vessel was already dismantled about 2/3rd at the time of filing of the above suits, the contention of Mr. Abdul Rauf, learned counsel for the defendants, that the vessel ceased to be navigable within the purview of clause (k) of section 2 of the Ordinance, is not devoid of force. However, this does not necessarily lead to the con clusion that the above suits under the Admiralty jurisdiction in terms of the Ordinance are not competent. If the plaintiffs had maritime lien over the, vessel, the above suits are competent.
This leads us to above issue No. 2. I will answer issue No. 1 along with issue No. 2 and after dealing with the other contentions raised by Mr. Abdul Rauf, Advocate in relation to the maintainability of the suits.
13. It was vehemently urged by Mr. Abdul Rauf, learned counsel for the defendants that since the Ordinance has repealed and replaced the admiralty law prevalent prior to the enforcement of it, resort can only be made to the provisions of the Ordinance. It was further urged b) him that the Ordinance does not preserve the right of maritime lien and, there fore, the same cannot be pressed into service. In my view, the above contention is devoid of any force. The maritime lien is a well‑recognized o right. It is too late to urge that in Pakistan this right has been done away because of the enforcement of the Ordinance. In this regard, refer ence may be made to para. 1.204 of Halsbury's Laws of England, Third Edition, Volume‑35, at page 782, which reads as follows :‑
"1204. Maritime liens recognized by English law.‑The maritime liens recognized by English law are those in respect of bottomry and res pondentia bonds, salvage of property, seamen's wages and damage. A maritime lien has been held not to exist in respect of towage or necessaries. It is doubtful whether or not a maritime lien exists in respect of pilotage dues.
Rights and remedies, similar to those enjoyed by the holder of a maritime lien and enforced in similar manner, have been created by statutory provision. These include a right to life salvage in certain circumstances though the salvors of life have not themselves salvaged any property; certain claims in respect of matters which though not wages may be recovered in the same manner in which seamen's wages may be recovered ; claims in respect of the wages, disbursements and liabilities of the master of a ship; claims in respect of damage to land caused by persons rendering services to a vessel wrecked, stranded or in distress; claims in respect of the fees and expenses of a receiver of wreck; and claims in respect of expenses of a local authority incurred on account of the burial or destruction of the carcase of any animal or carcase thrown or washed from any vessel ."
The Ordinance has expressly preserved the admiralty jurisdiction of the High Court which it was exercising immediately before the commencement of this Ordinance, or which is conferred by or under any law arid any ocher jurisdiction connected with the ships or aircrafts in respect of things done E at sea which has by tradition or custom of the sea been exercised by a Court of admiralty jurisdiction. In this regard, reference may be made to the proviso to subsection (2) of section 3 of the Ordinance, which reads as follows :‑
"Together with any other jurisdiction for the grants of such reliefs as are provided under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923) any other jurisdiction which was vested in the High Court as a Court of admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law or any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section."
14. It cannot be denied that the Admiralty Courts (i.e. the High Courts of Sind and Baluchistan), in Pakistan prior to the enforcement of the Ordinance were exercising admiralty jurisdiction in order to enforce the maritime lien and, therefore, by virtue of the above proviso, the above jurisdiction remained intact apart from the express jurisdiction conferred on the High Courts under the Ordinance by subsection (3) of section 4 of the Ordinance, which provides that admiralty jurisdiction can be exercised, in any case, in which, there is a maritime lien.
15. Then it was contended by Mr. Abdul Rauf, learned counsel for the defendants that since 2/3rd of the vessel was dismantled, the plaintiffs lost maritime lien as the vessel ceased to be a vessel in terms of the Ordi nance. The above contention is contrary to the concept of a lien. A maritime lien is attached to the res and to its every part i.e. the vessel. It will only extinguish when there is a total destruction of a vessel and not when it is partially destroyed. Mr. Shaiq Usmani, learned counsel for the plaintiffs has referred to the following cases :‑
"(i) Lady Durham, 3 Hagg, 195, in which, inter alia, it was held that the policy of the law requires that a seaman should not insure his wages; he must take the risk of the ship and stand by her at every hazard; he has a lien on the ship to the last plank, and on the freight which is appurtenant to the ship; and .. if any portion of the ship be saved, the mariner to that extent has a lien on the thing for wages. It was so held in the 'Neptune' 1 Hagg A R 238, so in a divided voyage, where there has been a delivery of cargo at different ports, and freights earned at those different ports, wages would be due pro rata, though the ship should be lost before she came to her final port of discharge; such was the case of the 'Juliana'."
(ii) Neptune 1 Hagg 236. In the above case also the following obser vations were made :‑
"On all views of the relative justice between the parties and of the public policy and convenience, there can be no doubt that the rule of wages has the advantage upon the clearest grounds, but take it upon the most naked principles of law applying to it, the contract covers the whole ship, one part as well as another, and no one part more than another, with the mariner's lien. A part separated by a storm is not disengaged by that accident from that lien."
Mr. Abdul Rauf, learned counsel for the defendants has referred to the British Shipping Laws, Volume 14, 1980 Edn., by D. R. Thomas, in which, in para. 88, the proposition of law propounded in the above two‑cited cases has been reiterated. It may be advantageous to reproduce hereinbelow the relevant observation which read as follows :‑
"88. Existence of a res a condition precedent.‑Given the nature of an action in rem it logically follows that the existence of a res is a condition precedent to the availability of such a form of action. With the loss or destruction of the res so also is lost any right in rem. In such circumstances a plaintiff may only avail himself of an action in personam.
Whereas the total loss or destruction of a res is decisive, no such con sequence necessarily follows upon only a partial loss or damage. To the extent that a maritime lien attaches to each and every part of a res so also an action in rem may issue against any surviving part ."
16. I am, therefore, of the view that by now it is a well‑settled princi ple of law that maritime lien remains intact till the last portion of the vessel is destroyed.
17. It was further contended by Mr. Abdul Rauf, Advocate that in any case, the suits are not competent against the defendant No. 4 under the Admiralty jurisdiction as the requirements of subsection (4) of section 4 of the Ordinance have not been fulfilled. In order to appreciate the above contention, it may be pertinent to reproduce subsection (3) and subsection (4) of section 4 of the Ordinance. which reads as follows :‑
"(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in clauses (e) to (h) and (j) to (q) of subsection (2) of section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of the ship, the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against‑
(a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person ; or
(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid."
It may be noticed that under subsection (3), it has been expressly pro vided that in any case in which there is a maritime lien, the Admiralty Juris diction of the High Court may be invoked by an action in rem against that ship, aircraft or property, whereas, subsection (4) of section 4 provides that in the case of any such claim as is mentioned in clauses (e) to (h) and ( j) to (q) of subsection (2) of section 3 being a claim arising in connection H with the ship, action in rem can be maintained against the person who would be liable on the claim in an action in personam when the cause of action arose provided that the ship at the time when the action is brought, is beneficially owned in respect majority shares therein by that person or against any other ship which, at the time when the action is brought, is beneficially owned as aforesaid. To put it precisely, the contention of Mr. Abdul Rauf was that since the defendant No. 4 could not have been sued in personam in respect of the plaintiffs wages at the time when the cause of action accrued as admittedly, they did not own the vessel or the majority share in terms of clause (a), the above suits against the defendant No. 4 are incompetent. Reliance has been placed on the case of Messrs Sun Line Agencies Limited v. Vessel m. v. Fisiloritis and 2 others (1984 C L C 1553) in which the facts were that an Agent who had rendered services to the vessels owned by a foreign company, sought the enforcement of his claim against a vessel which was chartered by the aforesaid foreign company on a time charter and was not owned. In other words, at no point of time, the vessel which was sought to be arrested, was encumbered with the maritime lien in respect of the plaintiff's claim or was owned by the aforesaid company. The learned Single Judge after referring to subsection (4) of section 4 of the Ordinance, held that since the owner of the chartered vessel could not have been sued in personam, the suit under Admiralty jurisdiction against the said vessel was not competent. In my view, the above case has no application to the present case, as admittedly, there was no right of maritime lien against the vessel which was sought to be arrested. In the present case, the plaintiffs had maritime lien in respect of their wages against the defendant No. 1, the vessel, which was at the time of filing of the above suits admittedly in possession of the defendant No. 4, who secured release of the vessel upon furnishing Bank Guarantees.
It may also be pointed out that above subsection (4) of section 4 of the Ordinance clearly excludes the case of maritime line by referring to whether claim gives rise to a maritime lien on the ship or not. In other words, the right to sue in rent by virtue of subsection (4) of section 4 of the Ordinance, is in addition to the right of maritime lien. The above Karachi case has been considered in a recent case decided by another learned Single Judge of Sind , High Court, namely, Global Shipping Co. (Pvt.) Limited v. m. v. Sea Elite' and others (P L D 1984 Kar. 245). In the above case, it has been pointed out that action in rent to maintain a maritime lien is independent of the above provision of subsection (4) of section 4 of the Ordinance. It may be advantageous to reproduce hereinbelow the relevant observation :‑
"The contention that the Court has no jurisdiction to entertain action in rent' is devoid of any force. The High Court can exercise Admiralty jurisdiction in respect of question, claim and cases specified in clauses (a) to (r) of subsection (2) of section 3 of the Ordinance. In all cases the jurisdiction can be invoked by an action in personam subject to the limitation placed by section 5 relating to the claim arising out of collusion and other similar cases specified therein. Section 4 of the Ordinance provides the mode of exercise or Admiralty jurisdiction. In cases falling under clauses (a) to (i) and (r) of subsection (2) of section 3 action in rent can be filed against the ship or property in question. Action in rent can also be filed where the claimant has a maritime lien or charge on the ship or other property. Yet in another class of cases falling under cruses (e) to (h) and (j) to (g), the Admiralty jurisdiction can be invoked by an action in rent against the ship provided the person who would be liable for such claim in an action in personam was, when the cause of action arose, the owner, charterer or in possession and control of the ship and at the time when action is brought that person beneficially owns the majority shares in the ship. In this regard reference can be made to Messrs Sun Line Agencies Ltd. v. Vessel m. v. Psiloritis and 2 others 1984 C L C 1553. It is thus clear that an agent can file an action in rent in respect of claim for the disbursement made on account of the ship provided the condi tions laid down by section 4 of the Ordinance as aforesaid are satisfied. It is not the case of ti::: defendant that the plaintiffs are not the agent of the vessel From the documents filed prima facie it seems thai disbursement has been made by the plaintiffs. At the time disbursement was made and when the suit was filed the ship has been under the ownership of Transafe Navigation Company Corporation Inc, who would have been liable for the claim in an action in personam. The Court has therefore jurisdiction to entertain action in rent which is maintainable,
In this regard reference may also be made to the relevant observation given in paras. 65 and 85 of the well‑known book British Shipping Laws. 1980 Edition, Volume 14, which read as follows :‑
"65. The adoption of the proceduralist thesis has resulted in the action in rent acquiring a significant quasi‑personal flavour. It has also had a 'profound influence on the development of law. None theless the thesis has its limitations and would appear to be inapplicable to rights in rent which accrue under maritime liens which arise independently of personal liability on the part of a res owner ."
"85. Section 3(4) and maritime liens .‑In section 3(4) it is expressly provided that the subsection is applicable ; whether the claim gives rise to a maritime lien on the ship or not Notwithstanding this reference section 3(3) continues to be the principal jurisdictional provision with regard to maritime liens. The significance of the reference to maritime liens in section 3(4) is to make it clear that an alternative action in rent against a 'sister ship' is equally applicable to claims in the nature of maritime liens. Where an incumbranced ship is, therefore, not readily available a maritime lienee may alternatively proceed in rent against another ship in the same beneficial ownership Section 3(4) does not work any change in the nature of a maritime lien nor does it extend the concept of a maritime lien. The alternative right in rent is in the nature of a statutory right of action in rent and the availability of 06 right is dependent on the provisions of section 3(4) being satisfied."
Reference may also be made to relevant observation from para. 14 of the above book, which reads as follows :‑
"The question of the personal liability of a res owner assumes a significance only in relation to the accrual of a maritime lien. I It has no further application and, in particular, does not operate to restrict the right of a maritime lienee to arrest a res in the hands of a purchaser. In such a case there clearly exists no personal liability on the part of the subsequent purchaser but this fact does not dissolve the right of a maritime lienee."
18. I am, therefore, inclined to hold that subsection (4) of section of the Ordinance is not applicable to the instant case and the above suits are competent even against the defendant No. 4, the purchaser of the vessel as the maritime lien was attached to the vessel and certain portion whereof, admittedly, was in existence at the time when the above suits were filed.
It was also contended by Mr. Abdul Rauf, learned counsel for the defendants that maritime lien can be claimed in respect of wages earned on board the vessel and not in respect of wages which might have been earned while not on board. He has referred to para. 308 of the above British Shipping Laws 1980 Edition, Volume 14, which reads as follows :‑
' 308. Wages to be earned on Board tire ship.‑‑A significant feature of the legislation prior to the Administration of Justice Act, 1956 was the consistent requirement that the wages be earned on board the ship' The original jurisdiction as it existed prior to 1861 was probably also so restricted. Although the phrase had the inherent capacity, if viewed narrowly and precisely, to restrict severely the jurisdiction of the Court it was never allowed to achieve such an undesirable result. Both under the original and statutory jurisdic tion the phrase was Construed broadly and liberally so as to include not only services rendered actually on board the vessel but any other services which appertained to the duties and responsibilities of a mariner, even though those services were performed away from the ship. In The Arosa Star, it was held by the Bermuda Supreme Court that notwithstanding the terms of section 10 of the Admiralty Court Act, 1861 claims for wages earned during periods of vacation and sick leave, and when necessarily the claimants were away from the ship, were within the jurisdiction of the Court.
The phrase earned on board the ship' is omitted from the current statutory jurisdiction of the Court. Given the. breadth of the former construction it is doubtful if this represents any subtantial extension of the Court's jurisdiction."
19. The above‑quoted passage clearly indicates that the British Administration of Justice Act, 1956 which has been re‑enacted by the Ordinance, has done away with the requirement that the maritime lien can only be claimed in respect of wages earned on board the vessel. The above contention is, therefore devoid of any force.
20. My answer to issue No. 1 is in the negative, whereas, to issue No. 2 is in the affirmative.
21. Issue No. 3.‑Before taking up the merits of the above issue, it may be observed that the defendants in their written statements have averred that they have given adjustment to tile plaintiff's wages in the suit, namely, Suit No. 498 of 1984 filed by the defendant No. 2 in the High Court of Sind against the plaintiff's for the recovery of damages arising out of breach of duties on the part of the plaintiffs. This point was :got urged by Mr. Abdul Rauf, learned counsel for the defendants) during the arguments. However. it will suffice to observe that in the absence of any judgment of a competent Court of law as to the right off defendant No. 2 to claim any damages from the plaintiff's, the plaintiff's suits cannot be defeated.
22. There are certain common points in all the three suits which may be taken up first :‑
(i) All the plaintiff's have claimed shorthand wages on the ground that one of the Officers w,. short on board for certain period during which they had performed the short officer's duties, and hence, they are entitled to share the wages with the Master of the vessel which would have been paid to the short officer. The reliance has been placed by the learned counsel for the plaintiffs on Exh. P; 12 to Suit File No. 3 of 1984, which has been signed by the four officers on board the vessel and received by the Master of the vessel. The above document reads as follows
"The Master, 5th July, 1984
m. v. Asbar. at Sea.
Dear Sir,
Subject : Second Engineer's Shorthand Wages
On repeated verbal requests to you for our shorthand wages there has been an absolute silence from you and the owner, and you have also made no effort from your side to ensure that we get our right, neither have you put it in the postage bill nor confirmed it by giving us in writing that we have been working shorthand since this date.
Mr. Mashkoor Hussain 2/Engineer left this vessel at Singapore on the 22nd of March, 11984 and since then we the undersigned have been looking after his job successfully, without any compensation, and the company has placed no replacement for him ever since he left, though now it is almost 4 months.
We would request you to please put in our accounts his basic salary (i.e.) 1,280 US dollars for this period dividing equally or by whatever proportion the shipping office rules say. We the undersigned feel that it is now very long and time to ask ourselves, as we will be leaving the vessel at Karachi, where the vessel proceeds now. We are sure that the statement above is true to the best of our know ledge, if otherwise please put it in the remarks with detail. ‑
Yours sincerely,
A. A. ‑Ansari Chief Engineer, Received and will make
Muhammad Asghar 3rd Engineer. company pay their due
Shahid. ll. Khan 4th Engineer. shorthand wages. Have
Oves Ahmed 4th Engineer. already informed com
pany.
(Sd )
Master
5‑7‑1984"
In support of the above claim, the plaintiffs have not examined the Master of the vessel, nor the learned counsel for the plaintiffs was able to cite any terms of the contract on record or any provision of law upon which the above claim is founded, nor practice has been pleaded and proved.
23. In my view, a plaintiff in his claim can. only succeed, if it is founded on a term of the contract or on a provision of law or on a proved custom. Since the learned counsel for plaintiffs could not support his claim on either of the above three basis, I cannot decree their claim in this regard. It may be stated that the above item was not reflected in the salary hilt prepared by the Master of the vessel which have been filed by the plaintiffs in the above suits.
(ii) The plaintiffs in the above suits have converted U. S. dollar into Pakistani rupee at the rate of Rs. 14.28. The question, therefore, which requires consideration is, as to whether the plaintiffs are untitled to convert the U.S. Dollar into Pakistani rupee at the above rate or at some other rate of exchange Mr. Shaiq Usmani, learned counsel for the plaintiffs has referred to para. 263 from the Halsbury's Laws of England, Third edition. Volume 35, page 170, in which, it has been stated that payment of wages in other than the prevailing currency stated in any agreement with a seaman must be at the rate of exchange prevailing at the time and the place of payment.
On the other hand, Mr. Abdul Rauf, learned counsel for the defen dants has referred to Exh. D/2 in suit File No, 3 of 1984 which is a letter, dated 29th June. 1983 addressed to the Master of the vessel by the defendant No. 2, which reads as follows :‑
"The Master
m. v. Ashar
At Karachi Road. Date : 29‑6‑1983.
Dear Sir,
It has been noted that all the advances in foreign ports are calculated at the rate of Pakistani Rs. 12.5329 equivalent to one U. S. dollar.
The above rate is a buying rate of Pakistani rupees from U. S. dolar this rate applies only to those whose wages are in U. S. D.
Crew members whose wages are in, Pakistani rupee whenever they are given foreign exchange in foreign port, the selling rate of U. S. dolars should apply to them, which. is always higher than the buying rate.
For your guidance we are giving you the following exchange rates which you should use in converting the currencies.
Selling rate of the U. S. dollar Buying rate of U. S. dollars
Pak. Rs. 12.87 Pak Rs. 12..5329
Due to the floating currency exchange rates, of U. S. dollar we will intimate you the future changes accordingly.
Thanking you.
Universal Maritime Corporation S. A.
(Sd.)
Syed Shakil‑ur‑Rehman..
Copy to :‑The Accounts Department.
Mr. Muhammad Iqbal."
The plaintiffs have not produced any evidence before me either t prove the above rate of Rs. 14.28 pre U. S. dollar, or any other rate of foreign exchange prevalent on the relevant dates. In the abs; nee of any such evidence on record, the rate of exchange given in the above‑quoted letter, which was acted upon, 1,v the parties during the currency of the employment agreement, will held the ground.
I am, therefore, of the view that the plaintiffs are entitled to convert U. S. dollar into Pak rupee for the purpose of the above suits at the rate of Rs. 12.5329 per U, S. dollar
25 Though reference to the leave wages has been made in the plaints of all the above three suits. but Mr. Shaiq Usmani, learner( counsel for the plaintiffs has submitted that he would press this claim only in Suit No. 2 of 1984. I will, therefore, take up this claim while dealing with the above issue No. 3 in relation to the above suit.
26. My findings as to the entitlement of each of the plaintiffs to the terms of a decree, are as follows :‑
27. Suit No. 2 of 1984
Before taking up the question of wages, it may be pertinent to take up the question of leave wages. In the present case, the plaintiff was employed on 29th September, 1983. He completed his probationary period on 28th March, 1984. There seems to be no specific clause in the above contract document on the point of leave wages. but reference has been made in sub‑para. (5) of para. 3 of the contract document. Reliance has been placed by the learned counsel for the plaintiffs on Exh. D/1 in Suit‑File No. 3 of 1984 which reads as follows :‑‑
"12th November, 1983.
The Shipping Master,
Government Shipping Office.
Karachi.
Re : m. v. Ashar at Chittagong.
Dear Sir,
Kindly arrange the sign on the following officers on the article of m. v. Ashar at Chittagong.
Name Rank. C. D. C. No. Salary
(1) Mr. Aleem Ahmed
Ansari. Add. Ch. Eng. K/O/2935 US 1,280
(2) Mr Muhammad Anwar
R/Officer. K/O/2325 US 600
Excluding leave wages 20 % which will be only paid on completion of one year, service contract with our principals Messrs Universal Maritime Corporation S. A. Panama.
Assuring you of our closest cooperation at all times, we remain.
Sincerely yours,
Consolidated Shipping Limited.
(Sd.)
As Agents only to,
Lubna Lines Limited."
It has been contended that under sub‑para. (2), ‑it has been provided that on completion of one year service contract, the employee would b‑. entitled to 20% of the wages as leave wages In this case, the plaintiff has claimed U. S. dollars 2,049.31 as leave wages. It is an admitted position that before the completion of one year period, the plaintiff was discharged from the service i. e. he was employed as stated hereinabove on 29th September, and was discharged from the duties on board the vessel upon arrival of the vessel at Karachi on 25th July, 1984. It has been urged by‑ Mr. Shaiq Usmani, learned counsel for the plaintiffs that since the plaintiff was not signed off by the defendant No. f, it would be' deemed that the plaintiff remained in service. I am unable to accept they above contention. There is no evidence on record to prove that without signing off the Articles of Agreement, the plaintiff could not have taken another job.
28. As regards the wages, the plaintiff has claimed wages upto 24th September. 1984 amounting to. U._ S. 8 4,992. In may view, at the most the plaintiff can claim fifteen days salary in lieu of the notice of fifteen days, whereby, his services could have been ‑terminated by the defendant No. 2. The above fifteen days notice period was to expire on or about 9th August, 1984 after the arrival of the vessel and hence on year of service was factually not completed by the plaintiff as to entitle him to claim leave wages on the basis of the above‑quoted letter.
29. As stated hereinabove, the plaintiff was entitled to salary o fifteen days in lieu of the notice and hence is entitled to salary upto 9th August, 1984. In this regard, reference may be made to Exh. P. 2 of the above suit file which indicates that upto 30th June, 1984 the balance payable to the plaintiff was U. S. 2,387.02. In addition to this, the plaintiff is entitled to the salary for the period from 1st July, 1984 to 9th August, 1984 at the rate of U. S. 760 per month, which comes to U. S. 980.64. The total of the above two sum comes to U. S. 3,367.66. The above total amount of U. S. S 3,367.66 is to be converted into Pakistan rupees at the rate of Rs. 12.5329 per U. S. dollar, which comes to Rs. 42,206.546.
30. Mr. Shaiq Usmani, learned counsel for the plaintiffs has conceded that the defendant No. 2 is entitled to a deduction of U. S. 3 6.97 which comes to Rs. 87.354 at the above rate of exchange. I would there fore. deduct the above amount from the above total sum of Rs. 42,206.546.
31. I accordingly decree the suit to the extent of Rs. 42,119.192 as prayed for with proportionate cost and interest at the rate of 9 7. from the date of filing of the above suit till the date of payment of the amount.
32. Before parting with the above discussion, it may be observe that Mr. Abdul Rauf, learned counsel for the defendants has contended that the plaintiff' as Second Officer and had officiated as First Officer only during the period from 3rd March, 1984 to 29th May, 1984 and, therefore, he was entitled to salary at the rate of U. S. dollar 760 during the above period' only and not for any subsequent period. There is no such express plea in the written statement. Furthermore, wage account prepared by the Master of the Vessel Ellis. P/2, 3, 4, and 5, have been prepared at the rate of U. S. S 760 per month which were not challenged by the defendants at any time prior to the above suit. The above wage accounts are prepared by the ‑Master of the Vessel in terms of section 44 of the Merchant Stripping Act, 1923 and, therefore, are binding on the defendants particularly, in the absence of any express plea or evidence on record.
33. Suit No. 3 of 1984.
In this suit, the plaintiff' has claimed wages upto 29th September. 1984 amounting to U. S. 7,814.58. The plaintiff (while narrating the facts of the above suit), a, stated hereinabove, had resigned on 15th May, 1934 by tendering two months notice which was to expire on 14th July, 1984, but since the plaintiff was on board the vessel, which arrived at Karachi port on 25th July. 1984, he was discharged from the duties on the above date His services stood terminated on 25th July, 1984. As stated in connection with the above Suit No. 2 of 1984 that the plaintiff had failed to produce any evidence to prove that he could not take another Job on account of the fact that his service contract was not signed off by the defendants, in my view, he is entitled to salary upto 25th July, 1984. Exh. P/11, the final wage account ‑prepared by the Master of the Vessel upto the period expiring on 25th July, 1984 indicates that the plaintiff was entitled to U. S. 3,014.59. In addition to that U. S; 1,000 remitted by the defendant No. 2 through a cheque during the currency of the employment agreement. was dishonoured which is reflected in Exb. P/15. The plaintiff is, therefore, entitled to the above sum of U. S. dollars 1 ,000, thus making a total of U. S.. dollars 4,014.59. Converted at the rate of Rs. 12.5329 per U. S. dollars, this comes to Rs. 50,314.455.
34. I, therefore, decree the above suit in the sum of Rs. 50,314.455 as prayed for with proportionate cost and interest at the rate of 9% from the date of filing of the above suit till the payment of the amount.
35. Suit No. 4 of 1984.‑‑The plaintiff was appointed as Chief Officer on 23rd May, 1984. He joined the vessel at Mogadiscio on 28th May, 1964. He resigned on 12th July, 1984 by tendering one month notice as he was by then not confirmed. He was discharged from duties upon the arrival of the vessel at Karachi on 25th July, 1984. He has claimed salary up to 24th September, 1984 for the period commencing from 23rd May, 1984. It has been contended by Mr. Abdul Rauf, learned counsel for the defendants that the plaintiff is entitled to the salary from the date of joining of the vessel, namely, from 28th May, 1984 and not from 23rd May, 1984 in view of the terms of the appointment reflected in Exh. D/1 which is a letter, addressed by the defendant No. 2 to the Master of the Vessel for the appointment of the above plaintiff', which indicates that he was entitled to the salary from the date of joining of the Vessel.
On the other hand, Mr. Shaiq Usmani, learned counsel for the plaintiff has referred to section 55 of the Merchant Shipping Act, 1923 which provides that a seaman's right to wages and provisions shall be taken to begin either at the time at which he commences work or at the time specified in the agreement of his commencement of work or presence on board whichever first happens. In the instant case, the tune specified in the employment letter is the date of joining the vessel and factually, the plaintiff joined the vessel on 28th May, 1984 and, therefore, even by virtue of above section 55 the plaintiff can claim wages from the date of joining the vessel. Exh. P/3 indicates that factually, the wage account prepared by the Master of the Vessel and accepted by the plaintiff by signing it, was prepared from the date of 28th May, 1984. In view of the above documentary evidence, the plaintiff has no basis for claiming from a date earlier than 28th May, 1984. The question which remains for consideration is as to the date upto which. the plaintiff is entitled to the wages. As stated, hereinabove:, the plaintiff had resigned on 12th July, 1984 by the tendering one month notice. He was discharged from the duties upon the arrival of the vessel on 25th July, 1984. In my view, a the most, the plaintiff can claim wages upto the date of expiry of notice which was 11th August, 1984. It may be stated that Exh. P/4 is the wage account prepared by the Master of the Vessel unto the period expiring on 30th June. 1984 indicating that a balance of U. S. 550.79 was payable. In addition to that, the plaintiff is entitled to the period from 1st July, 1984 upto 11th August, 1984 at the rate of 1,040 U. S. dollars per month. which comes to U. S. 1,409.03. The total of the above items comes to U. S. 1,959.82 converted into Pakistani rupees at the above exchange rate of Rs. 12.5329 per U. S. dollar, which comes to Rs. 24, 562.228.
36. I would accordingly decree the suit as prayed for in tile sum of Rs. 24,562.228 with proportionate cost and interest at the rate of 9% from the date of filing of the suit till the payment of the amount.
37. Before parting with the above discussion, it may be observed that the defendants Nos. 2 and 3 in their written statements Have deducted a number of items from the wages, on which, no evidence was led. Even at the bar, they were not urged except item of fare in Suit No. 4 of 1984, but this was not pressed. Even otherwibe, in the absence of any evidence contrary to the wage account prepared under section 44 of the Merchant S Shipping Act, 1923 by the Master of the Vessel, no deduction could have been made in presence of express prohibition provided under section 4 of the aforesaid Act, which provides that deduction from the wages of seaman shall not be allowed unless it is included in the account delivered in pursuance of this Act except in respect of a matter happening after the delivery.
A. A. Suits decreed.
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