1980 PLP 80 (CLC)

The defendant has not filed any written statement The plaintiff" has produced a statement of clause 2 of the Contract of Employment (Exh. 4) which reads as follows:- The period of service hereunder shall be six months duration commencing from the date of engagement subject to a probationary period of three months. He has two fold objections as regards the claim for wages. The first objection is that the plaintiff is entitled only up to 14-3-1978 when his contract for service expired. The second objection is that in any case he is no entitled to Wages beyond the date of shit. I, therefore frame the following issues :-- (1) UP to what point of time, the plaintiff, is entitled to his-wages ? (2) Whether he is entitled to shorthand allowance and leave pay ? The learned Advocates for the parties agree to and admit tile following facts:- That the plaintiff has not yet signed off the ship and he is still workings on the ship. The Master state that he is working is the capacity of second engineer from the very beginning. This statement is not disputed by Mr. S. A. Sarwana, Advocate or any other Advocate. The Master further states that he has retained wages dated 31st August, 1978 signed by the Master of the defendant. The 11Rasr-r is Present and admits his signatures on the statement which is brought on record marked as Exh.

3. Mr. S. A. Sarwana Advocate has filet: a Caveat and-r rule 7 5.5 of the Sind Chief Court Rules (O. S.) read was Order I, rule and sec tion 151, C. F. C. Tae Caveator is the mortgage of the vessel m. v. Asian Queen and has obtained a dccre4 in Adm. Suit No. 23/78 and desires to be heard in this case on the ground that the claim made in the suit is exaggerated and is contrary to the provisions of tits employment contract. Mr. S, A. Sarwand lies produced a photostat copy of the contract of employment dated 14-9-1977 which is by consent, brought on record marked as Exh.

4. Mr. Sarwana has not filed any objections alongwith the Caveat stating as to which items of the claim the Caveator has objections and what are the grounds of objections but he at the bar states that the Caveator has objections to the following claims: (1) Wages up to the date of actual payment of the decretal total amount. (2) Claim for shorthand for performing the duties of fourth engineer. (3) Leave pay. Mr. S. A. Sarwana relies on the provisions the Plaintiff on the vessel because without him the vessel's working would have been affected. Mr. S. A. Sarwana does not accept this statement but says that it is not necessary to formally record evidence of the Master of the vessel on this point because he has no evidence readily available to rebut the statement of the Master. Subject to the above statement the learned Advocates for the parties state that they do not wish to lead any evidence. It is not disputed that the salary of the plaintiff is Singapore Dollar 1,400 per month. It is also not disputed that he has not been paid any amount on account of salary frown 15th September, 1977. The question is whether he is entitled to salary up to 14th March, 1978 when his contract of employment expired as mentioned in Exh. 4 or he is entitled to wages upto this date. The submission of Mr. Sarwana is that the plaintiff is entitled to wages upto 14t.h Match, 1978 when his contract of employment expired because thereafter the ship has been lying idle in the port. He supports his submission by referring to Elleman Lines Limited v. Murray & White Star Line of Royal anal United States Mail Steamers Oceanic Steam Navigation Company Limited v. Comerford. ((1931)

1. R A C P 126) In this case two separate appeals were filed from a decision of Court of Appeal affirming the decision of Lord Merrivale in two actions separately brought by two seamen against two ship owners. Both the cases raised a question under Merchant Shipping (International Labour Conventions) Act, 1925 as to Seaman's right to wages after his services bad been terminated by the wreck or loss of the vessel on which he had been employed. In the first appeal the respondent was employed as quarter master and able bodied seaman on the ship Croxteth Mall owned by the first appellant. the ship eves wrecked on 27th February, 1929. The respondent bought an action against the appellant claiming two months wages from the date of the wreck, although the respondent's seaman's services under his agreement of employment would in the normal course have terminated on 10th March, 1919 and the appellant had offered to pay wages up to that' date and bad declined to pay further wages. In the second appeal the respondent was employee, .gin the W Star Liner Celtic as a regrigerating greaser and seaman. The Celtic wrecked on 10th December, 1928. The respondent brought a similar action against the appellants. The respondent's services would in the normal course have terminated on I1th December, 1928 and the appellants had repudiated any liability for wages after that date. Construing the provisions of section 1 of Merchant Shipping (International Labour Conventions) Act, 1925 it was held that each seaman was entitled to two months wages from the date of the wreck of his ship. On the basis of this case it was submitted by &f. Sarwana that the case is an authority for the proposition that a seaman is entitled to wages upto the date of expiry of his contract of employment, unless the law gives him right beyond that date but this case, in my opinion, is quite distinguishable for the simple reasons that in the present case the employment was not terminated by wreck of the vessel or otherwise and that the Master of the vessel in the case before me stated that he had retained the service of the plaintiff beyond the period of the contract as the same was necessary to maintain the ship. It is not disputed or denied before me that Master had no authority to employ the plaintiff for further period. It is also admitted that the plaintiff was not signed off the ship. In fact the case cited by Mr. Sarwana shows that a seaman can be entitled to wages even after the expiry of his contract of employment if he is given such right under some statutes. However, the question whether the plaintiff is entitled to wages upto the filing of the suit or upto the date of passing the decree or upto the date of payment as prayed in the suit remains to be decided. Mr. Baqar Hussain, Advocate does not press the prayer for payment of wages upto the date of payment but rests plaintiff's claim upto the date of decree. The contention of Mr. Sarwana however, is that the plaintiff is entitled to wages up to the date of the suit and he can bring a separate action for the subsequent period. The answer can be easily found in the Fair port ((1966) 2 A11 E R 1026) where wages were allowed up to the date of the judgment. It may be convenient to reproduce the relevant observation which appear ed at page 1035 of the report :-- "The rule that claims in an action can be made only in respect of causes of action that have accrued at the commencement of the action is. I think, a rule of practice rather than a rule of law. It is subject to exceptions. Mesne profits and interest are two that occur to me. In none of the Admiralty cases to which I have referred is it suggested that this rule is a ground for disallowing a claim for wages and, indeed, it seems to me that the reasoning in The Carolina and in The James v. Elwell is inconsistent with it. The strongest reason for considering that the rule is not applicable in connexion with seaman's action in rem against a ship is that it is -well established that claims for visticum can be made covering expenses incurred after the date of the writ. The Raffaelluccia and The Bridge water are two old authorities to this effect, and N Hewson, J's, judgment in this very case included the expenses of the Plaintiffs, repatriation which obviously had not been incurred at the date of the writ. I see no reason why a different rule should apply in relation to the wages. 1, therefore, allow the appeal." Now, the next point for consideration is whether plaintiff is entitled to shorthand and leave pay. As regards the question whether the plaintiff is entitled to shorthand allowance for performing part of the duties of fourth engineer, the learned Advocates for the parties agree that he may be allowed shorthand allowance up to the end of September, 1977 in the sum of 175 Singapore Dollars. As regards the objection to the leave pay the submission of Mr. S. A. Sarwana is that since the ship is lying idle, the plaintiff is deemed to be on leave and therefore he should not be allowed leave pay. This submission is not well founded because it is not denied and it can not be denied that the ship is being maintained even though it is lying idle in the port. In the result this suit is decreed for Rs. 1,01,494,00 equal to Singapore Dollars 23,880.96 which includes the amount of wages, shorthand allowance up to the date of decree and a sum of Rs. 743.75 equal S. $ 175 on account of leave pay. The amount of Rs. 101,494.08 has been calculated by the learned counsel in accordance with the above findings. The plaintiff will also be entitled to costs of the suit. The plaintiff undertakes to pay deficit court-fee within 15 days or at the time of payment by the Nazir from the sale proceeds of the vessel. M. A. K Order accordingly.