ADMIRALTY COURT BEST FORUM FOR DECIDING COUNTER CLAIM IN THE SAME CAUSE

ADMIRALTY COURT BEST FORUM FOR DECIDING COUNTER CLAIM IN THE SAME CAUSE <!--[if gte mso 10]> ADMIRALTY COURT BEST FORUM FOR DECIDING COUNTER CLAIM IN THE SAME CAUSE By Adeel Abid, Advocate, Karachi Where in an action in rem the plaintiff fails to establish his case, the Court will not ordinarily order him to pay damages for the arrest of the ship proceeded against, but in case the arrest is an act of mala fides, or an act of such gross negligence as to lead the Court to imply malice, the Court will award damages to the defendant. Wrongful arrest of a ship means a ship arrested in a wrongful manner. It further defines that wrongful arrest of a ship or other res only where the court decides that the arrest was prompted by bad faith (mala fide) or gross negligence. The Admiralty court has always had' jurisdiction to entertain counter claim for damages on account of wrongful and malicious arrest of vessel. Under the Admiralty Jurisdiction of the High Courts Ordinance 1980 there is a saving clause at the end, the relevant parts thereof are reproduced as follows:-- " ..together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts, etc., any other jurisdiction which was vested in the High Court as a court of admiralty immediately before the commencement of the Ordinance or as conferred by or under any other law and any, other jurisdiction connected with ships or air crafts 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". The above saving clause in the Admiralty Ordinance has been substantially copied from the English Administration of Justice Act, 1956 and has been further saved under the English Supreme Court Act 1981, section 20 subsection (1) clause (c). (1) There is therefore no force in the argument that the Admiralty Court cannot entertain a counter claim in case of wrongful arrest because no such item is provided for under section 3(2). Paragraphs 4-029 to 4-032 at pp 136 & 137 of Admiralty Practice by Meeson deal with the subject of counter claims in Admiralty action. Reliance is placed on Halsbury's Laws of England (2). "732. Liability for maliciously procuring arrest. An action lies against one who, maliciously and without reasonable and probable cause, procures, by means of admiralty proceedings, the arrest of a ship, if the ship has been released and the proceedings have terminated in favour of the person aggrieved by the arrest. 733. Damage. In such a case damage is implied by law, and no actual or special damage need be proved, the plaintiff, if he succeeds, being entitled to at least nominal damages. In cases where at least actual damage has been sustained; the Admiralty Division will not, if the facts are properly brought to its knowledge, which may be done by affidavit, put the injured party to the necessity of bringing a fresh action; but will, in the original action, award him damages for the wrongful arrest, usually in the nature of demurrage." Further reliance is placed in the case of Collingrove/The Numida. (3) "It has always been the practice in the Court of Admiralty for the judge to award these damages to the defendant, where upon the trial the facts have shown that he was, entitled to them, without putting him to the necessity of bringing a fresh action for them." The words "or conferred by or under any other law" occurring in the said saving clause under section 3(2) of the Ordinance, 1980 are sufficient to give jurisdiction to the court to entertain counter claim under Order VIII of the C.P.C. which has been made specifically applicable to admiralty cases under Rule 729 of the Admiralty Rules read with Rule 773 thereof, which provides that: "773. The forms used in the Admiralty Division of the Supreme Court of England under the Rules of Supreme Court Act, 1883 shall be followed as nearly as the procedure laid down in the Code, and by these rules and the circumstances of each case will allow". (4) Under the rules "Code means Civil Procedure Code" (5) Under Rule 774 the proceedings in suits ..Not provided for by these rules shall be regulated by the rules and practice of the court in suits brought in it in the exercise of its original civil jurisdiction. (6) It is submitted that on the original side a counter claim has always been entertained in case of wrongful arrest of the vessel under Order VIII of the C.P.C. (7) The leading case on the subject applicable on all fours is to be found in the case of Walter D. Wallet. (8) The following passages from pages 205 and 206 of the report may be considered: "No precedent, as far as I know, can be found in the books of an action at common law for the malicious arrest of a ship by means of Admiralty process. But it appears to me that the onus lies on those who dispute the right to bring such an action of producing authority against it. As Lord Campbell said in Churchill v. Siggers: "To put into force the process of law maliciously and without any reasonable or probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action on the case." Why is the process of law in Admiralty proceedings to be excepted than this principle? It was long ago held that an action on the case would lie for malicious prosecution, ending in imprisonment under the writ de excommunicato capiendo in the spiritual court: Hocking v. Matthews. It can, therefore, hardly be denied that it would have lain for malicious arrest of a person by Admiralty process in the days when Admiralty suits so commenced, just as for malicious arrest on mesne process at common law. But if for arrest of a person by Admiralty process, why not for arrest of a person's property?" "Undoubtedly there may be cases in which there is either mala fides, or that crassa negligentia which implies malice, which would justify a Court of Admiralty giving damages, as in an action brought at common law, damages may be obtained. In the Court of Admiralty the proceedings are, however, more convenient, because, in the action in which the main question is disposed of, damages may be awarded. The judgment proceeds further at page 207: " I cannot think that the measure of damages in the courts of Common Law and that of Admiralty is, in law, different, though possibly the different mode of determining the damages might lead in practice to different results. I know of no authority for any such proposition; in general the measure of damages for tort in the Admiralty and in the Common Law Courts is the same." This case has also been considered in The Kommunar (No.3). (9) At page 31 column 1 of the Report the following passage appears: "In the Walter D. Wallet (1893) page 202 Sir Francis Jeune, P. held that the test for entitlement to damages for wrongful arrest of a vessel at Common Law was substantially that for malicious arrest of a person mainly where there was want of reasonable and probable cause which was equivalent to the Admiralty test of the mala fides or crassa negligentia as in the Evangelimos, supra." Reliance is further placed on a case from the Indian Jurisdiction of The Royal Bird (10) of the judgment is as follows:-- "At the time when the application of the petitioner was being heard as a new motion the plaintiff/respondent furnished security to the extent of Rs.3 lakhs which had been deposited by the plaintiff respondent as per orders of this Court. The said security was furnished to indemnify the petitioner as against the losses, if any, as may have been or are likely to be suffered by the petitioner. The vessel has been detained for about more than 50 days by virtue of the ex parte order obtained by the plaintiff respondent. Since I am of the view that the ex parte order is liable to be vacated as mentioned herein, the petitioner is in my opinion entitled to recover the damages and expenses from the plaintiff as also the said agents who have purported to act in the name of the plaintiff in instituting this suit and in obtaining the ex parte order dated 7th July, 1994. I propose to appoint the official reference of this Court as the Special referee to determine the quantum of loses and damages suffered by the petitioner." The Merchant Shipping Ordinance 2001 provides that: (11) "Liability of Federal Government for costs and damages when ship wrongly detained.--If it appears that there was no reasonable and probable cause, by reason of the condition of the ship or the act or default of the owner or the master, for the provisional detention of a ship, the Federal Government shall be liable to pay the owner of the ship his costs of, and incidental to, the detention and survey of the ship and also compensation for any loss or damage sustained by him by reason of the detention or survey." As to Ken Lucky Judgments.--(12) of the Sindh High Court it is most respectfully stated that these judgments are not binding on the Courts because these are per incurium decisions. The attention of the court was confined to the interpretation of clause (h) of sub-clause (2) of section 3 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980 and arguments were advanced only to demonstrate that the detention of the vessel on account of wrongful arrest was a breach of "an agreement" within the meaning of the said clause 'h' of section 3 (2) of the Ordinance, 1980 and it was in this context that the court was pleased to make an obiter that the damages on account of wrongful detention of a vessel resulted from tort and not from breach of any agreement and as such a claim under tort could be entertained on the original side of the court in an ordinary money suit and not under the Admiralty Jurisdiction. Furthermore, the said two decisions have therefore completely overlooked the saving clause at the end of section 3(2) of the Ordinance, 1980 which was never pointed out to. the court and it is reiterated that the Admiralty Court has always had inherent jurisdiction to grant damages for wrongful arrest of vessels by way of counter claim in the same cause. It may therefore be appreciated that jurisdiction vested in the Admiralty Court to entertain counter claim is largely in accordance with the traditions and admiralty practice and the Admiralty Court is empowered to do justice between the parties instead of driving the owners to file a separate suit. In the case of M. Rafique v. Sultan Bakhsh (13) and another case of Abdul Razzaq v. Collector of Custom (14) the High Court of Sindh observed that per in curium decisions are not binding on any court. Reference: 1. See paragraph 2-157 at p.70 of Admiralty Jurisdiction and Practice by Nigel Meeson, Second Edition. 2. See paragraphs 732 and 733 of Halsbury's Laws of England Vol-25 3rd Edition [3]. 3. 1885 Probate 185 at 160 4. Sindh Chief Court Rules (O.S.) Chapter XXXII, Rule 773 5. Sindh Chief Court Rules (O.S.) Chapter XXXII, Rule 729 6. Sindh Chief Court Rules (OS.) Chapter XXXII, Rule-774 7. See Order VIII of Civil Procedure Code, 1908 8. 1893 Probate 202 rr. pages 205, 206 & 207 9. (1997) 1 Lloyd's Report page 22 rr. page 31. Col. 1 10. AIR 1995 Cal 169 rr. page 183 paragraph 54 11. See S.395 of Merchant Shipping Ordinance 2001 12. PLD 1986 Karachi 447 and 1994 MLD 2178 (DB) 13. 1990 ALD 312 (1) 14. 1995 CLC 1453