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High Court Admiralty Appeal No. 1 of 1986, decided on 31st March, 1987.

---Ss.3, 4 & 7--Arrest of vessel--Question as to whether services rendered fall within category of salvage cannot be decided without taking evidence.

---Ss. 3, 4 & 7--Arrest of vessel--Amount of security--Appellant taking plea of complete denial but failing to bring on record any material to indicate that figure claimed by respondent was not realistic--Appellant placed photostat copy of alleged Bill of Sale indicating amount at which vessel was purchased but since the document was not placed before Single Judge, same could not be considered at appeal stage--Question requiring recording of some evidence in order to arrive at a tentative conclusion as to value of vessel at time when services were rendered or benefit derived by appellant and cargo at time of salvage services--View taken by Single Judge that there was no material produced by appellant before him on basis of which he could have tentatively adopted a figure other than figure claimed by respondent for purpose of security amount, held, being in consonance with law was upheld in appeal.

Mustafa Lakhani for Appellant.

S.A. Sarwana for Respondent.

Date of hearing: 31st March, 1987.

-This is an Admiralty Appeal directed against the order dated 14-9-1986, whereby a learned Single Judge of this Court made the order of arrest passed on 4-9-1986 absolute on the condition that the vessel would be released on furnishing of the security to the satisfaction of the Nazir of this Court equivalent to U.S. 75,000. In support of the above appeal Mr. Mustafa Lakhani has urged as follows:-

(1) That the suit was not competent as no power of attorney or the copy thereof was produced by the plaintiff in favour of the alleged attorney.

(2) That the claim of the respondent did not fall within the ambit of a claim covered under section 3(2)(i) read with section 4(2) of the Admiralty Jurisdiction of the High Courts Ordinance, 1980, hereinafter referred to as the Ordinance.

(3) That since the dispute is a subject matter of an arbitration the Court had no jurisdiction.

(4) That the respondent had no cause of action as the appellant was not called upon to furnish security for the alleged claim.

(5) That the amount of the security asked for is unrealistic and exorbitant, keeping in view the original purchase price of the vessel.

2. On the other hand Mr. Sarwana assisted by Mr. Shujat Ali has contended as under:-

(1) That the suit was competently filed as copy of the telex containing the authority to file the suit with an undertaking to file the Power of attorney was filed with the suit.

(2) That the claim of the respondent falls within the ambit of the Ordinance.

(3) That the right of the respondent under the Ordinance to arrest the vessel is not defeated either by an Arbitration clause or by the factum that the matter is referred to the arbitration.

(4) That for invoking the provisions of the Ordinance there is no requirement to serve a notice for asking the security of the claim; and

(5) That the respondent under clauses 4 and 5 of the Salvage Agreement had the right to assess the amount of the claim approximately subject to determination by Lloyds.

3. We have noticed that in the order under appeal the learned Single Judge has not touched upon the effect of non production of the Power of Attorney though while narrating the facts and the objections this finds place. However, we will not. like to express our selves on this aspect as prima facie the respondent has now produced a formal Power of Attorney whereby all the previous acts done by the attorney have been ratified. We may clarify that it will be open to the appellant to agitate this question at the trial of the suit and it will be open to ,the learned Single Judge to decide the above question of competency of the suit in accordance with law.

4. As regards other submissions, it may be pointed out that the appellant had raised- the plea of complete denial in the suit. They had come out with the plea that no service whatsoever was rendered. The learned Single Judge on the basis of the two log books produced by the respondent and by the Master of the appellant vessel and on the basis of the Salvage Agreement tentatively concluded that factually the service was rendered. The question whether the services rendered fall within the category of the Salvage has been rightly kept open by the learned Single Judge in the order under appeal as this question cannot be decided without taking evidence on this aspect.

5. The only question which requires consideration is as to the amount of the security. Apart from the clauses of the Salvagel Agreement referred to by the learned counsel for the respondent, referred to hereinabove it may be pointed out that since the appellant had taken the plea of complete denial, they could not have furnished any figure indicating the approximate amount which the respondent could have claimed as the salvage charges. The learned Single Judge has observed that there was no material produced by the appellant before him on the basis of which he could have tentatively adopted a figures other than the figure claimed by the respondent for the purpose of the security amount. In our view, the approach of the learned Single Judge is in consonance with law. If the figure of the respondent was to be contested by the appellant they should have brought on record some material to indicate that the figure claimed by the respondent was not realistic. Before us the appellants have filed a photostat copy of the alleged Bill of Sale indicating that the vessel was purchased in 1985 for a sum of U.S. 1,05,210. Since this document was not placed before the learned Single Judge we cannot take it into consideration at the appellate stage. In any case, this question also needs recording of some evidence in order to arrive at a tentative conclusion as to the value of the vessel at the time when the services were rendered for the benefit which was derived by the appellant and the cargo at the time of the salvage services.

We do not find any merit in the appeal, therefore, it is dismissed but there will be no order as to costs.

M.Y.H./M-120/K Appeal dismissed.

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