2013 PLP 1533 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal with the leave of the Court has arisen out of the judgment dated 21-4-2008 whereby a Division Bench of the High Court of Sindh at Karachi dismissed the appeal filed by the appellant.

2. Brief facts of the case as narrated in para 2 of the impugned judgment read as under:-- "Messrs Surridge and Beecheno a legal firm of advocates and solicitors were engaged by Yukong Limited for pleading Admiralty Suit No. 686 of 1995 on October 5, 1995, the vessel of the respondent No. 1 was arrested for recovery of US $ 1,269,686.52 on account of cost of Bunkers supplied to sister vessels at Singapore and Fujerah in U.A.E. Eventually, decree in rem against the vessels in favour of Yukong Limited, was passed against which respondent No. 3 has preferred Admiralty Appeal No.1 of 2003 which is still pending adjudication. In the year, 1996 respondent No.3 filed Mortgage Suit No.123 of 1996 in the Admiralty jurisdiction for recovery of US Dollars 17,971,691,

99. After consideration of both the suits vessel was directed to be auctioned in the sum of US $ 2.5 Million sale was confirmed on 9-5-1996. The learned single Judge passed a mortgage decree on the basis of the admission of liability by the respondent No.4 in Admiralty Suit No.123 of 1996 and in part satisfaction of the decree the respondent No.3 viz., the CIT Group/Capital Equipment Financing Inc. its part payment of US$ 2,395,000 out of sale proceeds of the vessel lying with Official Assignee".

3. Points raised and noted at the time of granting leave read as under:-- "(a) Is the Admiralty Court in Pakistan vested with the power to grant relief to Advocates for recovery of their Professional Fee for service rendered to a client, who fails or avoids to pay the same. (b) Whether the petitioners, who statedly performed their professional duties to advance the cause of their clients (S.K. Corporation) formerly Yukong Limited) can be regarded as 'Salvor' when the claim of their clients stood satisfied from the sale proceeds of the vessels. (c) Whether the petitioners, a Law Firm, by its efforts preserved maritime property and therefore can claim the amount of professional fee. (d) Whether the petitioners' Firm under the circumstances can claim the bills of their professional fee, which were unilaterally submitted and unverified".

4. Learned counsel appearing on behalf of the appellant contended that when the services rendered by the appellant not only salvaged the vessel but also preserved the interest of their clients, they are entitled to a charge thereon and that it being a salvage right can well be enforced under section 3 of Admiralty Jurisdiction of the High Courts Ordinance, 1980. Such right, learned counsel added, not only merits enforcement but preference over all the other claims. The learned counsel to strengthen his arguments referred to the cases of "Kuttikrishna Memon. v. Cochin Mercantiles Ltd." (1962) (32) Company Cases 378, "Bulley. v. Bulley" (1878) 8 Chapter D 479) and "Greer v. Young" (1883) 24 Chapter D. 545). Section 69 of the Solicitor Act, 1932, the learned counsel continued, which is in paramateria with section 28 of the Solicitor Act, 1860 also recognizes the enforceability of such right in the Admiralty Jurisdiction of the High Court, and that the forum below as well as the High Court, by failing to appreciate this legal aspect of the case failed to exercise jurisdiction vested.

5. Learned counsel appearing on behalf of the respondents by referring to last nine lines of paragraph 22 of the judgment rendered in the case of "Yukong Ltd. South Korean Company, Seoul, South Korea v. M. T. Eastern Navigator and 2 others" (PLD 2001 Supreme Court 57), contended that the vessel in this case was already arrested pursuant to the order dated 5-10-1995 of the High Court, therefore, nothing could be said to have been done by the appellant to salvage the vessel or preserve the property, so as to entitle it to any charge. If at all, the learned counsel added, the appellant has rendered any service at a stage when the vessel was out of danger that will not give rise to a salvage right which could be enforced in the Admiralty Jurisdiction of the High Court, therefore, the impugned judgment which is based on correct interpretation of law is not open to any exception.

6. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.

7. What is the nature of the services rendered by the appellant; whether the services rendered by it could be said to have salvaged the vessel and whether such services could create a charge which is capable of being enforced in the Admiralty jurisdiction of the High Court ?

8. The record reveals that the vessel stood arrested before the appellant stepped in the arena. It was no more in a state of danger, when the appellant instituted a suit on behalf of its clients. The appellant in this context cannot be treated as salvor nor can it be said to have recovered or preserved something in a time of danger, by its labour or work. If at a later stage, it after having been employed by its clients has preserved and protected their interest, it cannot be termed as salvor by any attribute so as to entitle it to a charge in the nature of salvage right. The learned counsel for the appellants heavily relied on the cases of "Kuttikrishna Memon v. Cochin Mercantiles Ltd." (1962) (32) Company Cases 378), "Bulley v. Bulley" (1878) 8 Chapter D 79) and "Greer v. Young" (1883) 24 Chapter D. 545) but these cases, when read with discerning mind, seem to have been based on section 28 of the Solicitors Act, 1860 which not only recognized the Solicitor's charge in the nature of salvage right, but also conferred jurisdiction on the Court trying such lis, to enforce such right. Such right, according to the learned counsel, was also recognized and such jurisdiction was also conferred on such Court by section 69 of the Solicitor Act, 1932 which is by all means in paramateria with section 28 of the Solicitor Act, 1860. But this, too, would be of little help to the appellant as the Acts recognizing such right and conferring such jurisdiction on the Court to enforce such right are not in force in this country, given that the services rendered by the appellant, in any way, proved instrumental in recovering or preserving the interest of its client. Mere reference to section 69 of the Solicitor Act, 1932, even if it is assumed for a while to be in force in this country, would not entitle the appellant to a salvage right, if it had any, when at no stage of the proceedings, the Court trying the lis declared that the services rendered by the appellant proved instrumental in recovering or preserving the property. In the absence of such declaration, which is sine qua non in terms of section 69 of the Act for the enforcement of such right, the appellant cannot on its own done the attire of a salvor and ask for the enforcement of such right.

9. Yes, the High Court exercising Admiralty Jurisdiction can exercise any other jurisdiction, in view of the provision contained in section 3 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980, which was vested in it as a Court of Admiralty or conferred by or under any other law connected with the ships or aircraft in respect of things done at sea which as by tradition or custom of the sea been exercised by a Court of Admiralty apart from the provision mentioned above, but in no case, it can exercise a jurisdiction which has not been conferred on it, in terms of Article 175 of the Constitution of the Islamic Republic of Pakistan. The view taken by the High Court, against this backdrop, appears to have been based on correct perception of law and facts. We, therefore, do not feel persuaded to interfere therewith.

10. For the reasons discussed above, this appeal being without merit is dismissed. MWA/S-21/SC Appeal dismissed.