1989 PLP 2168 (CLC)

The plaintiff has filed this suit for recovery of Rs.68,218.08 as the balance of wages which have not been paid to him for services rendered on vessel m.v. AL‑AIDA, the defendant No.

1. He has claimed that he was appointed as the Chief Engineer of defendant No. 1 through Shipping Office Karachi, in November, 1983 on a basic monthly wage of US $.1,

600. On 15‑4‑1984 the plaintiff and other Pakistani crew members on board defendant No. 1 were discharged from the vessel at Sharja. He was paid only 50% of the wages and the owners representative promised to pay the balance at Karachi. The plaintiff therefore, accepted the amount paid to him and returned back to Karachi. Here he approached their agent M/s. Ameejee Valeejee for payment at Karachi but without any result. The plaintiff has filed the wages account signed by the Master in which the balance amount of US $.4,263.63 equivalent to Rs.68,218.08 is due. When defendant No. 1 arrived at Karachi this suit was filed and she was arrested. At that time Diamond Mubarak Agencies were joined as defendant No. 2 but their name has been deleted. During the pendency of the suit Afrah Shipping Co. filed an application to be joined as defendant No.3. This application was granted. In its written statement defendant No. 3 has pleaded that they are not aware of the engagement of the plaintiff on the vessel nor that the Master had issued any wage account. It has been averred that defendant No. 1 was previously owned by M/s. Asma Enterprises from 1981 which was purchased by defendant No. 3 on 7th April, 1985. Thereafter defendant No. 3 changed her port of registry from Dubai to Ajman. On 23‑5‑1985 defendant No. 3 sold her to Muzaffar Ahmed & Co. It has been claimed that at the time the suit was instituted defendant No. 3 was the owner of the vessel which was delivered to Muzaffar Ahmed & Co. on 21‑7‑1985. None of these owners have appointed M/s. Ameejce Valeejee as their agents for the said vessel. It has been denied that Al‑Qadissiah Shipping Agency Dubai were either the owner or agent of the vessel appointed by the owners. Defendant No. 3 had not employed the plaintiff. On the basis of the pleadings the following issues were framed:‑ (1) Whether the services of the plaintiff were hired against wages, through the shipping office at Karachi to be rendered at defendant No.l? (2) Under what circumstances the plaintiff was compelled to accept fifty per cent (50%) of his wages due at the time of relieving on 15‑4‑1984 at Sharjah? (3) Whether M/s. Afrah Shipping Co., do have any concern with or a necessary and proper party for the purposes of this suit? (4) Whether the plaintiff was employed by the owners of the defendant No.1. (5) Whether the plaintiff has any maritime lien against the defendant No. 1? (6) Whether the plaintiff is entitled to recover the suit amount as his due wages from the defendants? (7) What should the judgment and decree be? ISSUE No.l: In order to establish that the plaintiff was engaged at Karachi as Chief Engineer, he has relied on a letter written jointly by one Javed Riaz, the plaintiff and Muhammad Jamil, to the Shipping Master stating that they were engaged on board the defendant No. 1 and had signed the article of agreement before him. The owners were represented by M/s. Ameejee Valeejee & Sons and complaint was made that the balance wages have not been paid. It seems that the Shipping Master had forwarded this letter to Ameejee Valeejee & Sons. In their reply the employment of the plaintiff is admitted. The learned counsel for the defendant has raised a technical objection that Ex.P/4 was admitted subject to proof and that no one from Ameejee Valeejee has been produced to prove this document. This objection must sustain. However, reliance has been placed on Ex.4/1 which is a statement of account issued by the Master who has put his stamp as Master of the defendant No. 1 with full particulars. This document has been proved. According to it, the employment, the length of service and the amount of wages, paid and the balance amount due has been established. Ex.4/8‑ is a photo copy of Shipping Office Form No. 17 which is to be retained by the Shipping Master. From this document the employment and the discharge of the plaintiff is also established. The learned counsel for the defendant has contended that Master's certificate does not establish employment. A certificate by the Master of the vessel is always accepted as proof of employment, wages and the amount paid and due. Such certificate is issued in the course of employment by the Master who is agent of the owner. He is also the agent necessity and is an authorised and competent person to issue such certificate. If defendant No. 3 wanted to challenge this document on the basis that the Master had not issued it or that the Master was not in employment at the relevant time, then they should have produced the relevant log book, chief officer's log book and other documents which are regularly maintained and kept on board the ship and can easily establish the name of persons employed as Master or Chief Engineer. These documents are always kept on the ship and are in possession of the owner. Defendant No. 3 has not produced these documents. In the absence of such relevant and important' record, which was within the custody of defendants Nos. 1 and 3 and in the absence of any valid explanation for their non‑production, the presumption is that if produced they will be favourable to defendant No.

3. My finding on issue No. 1 is in the affirmative. ISSUE No. 2: Except the evidence of the P.W. 1 there is no evidence on this aspect of the case. The circumstances in which the plaintiff was paid 50% of the wages have been stated by P.W. 1 and the same has not been challenged in the cross examination. Ex.4/1 also proves that balance amount is due. The plaintiff was assured that balance of his wages will be paid at Karachi and was discharged from the vessel. My finding is accordingly. ISSUE No.3: Since defendant No. 3 claims to be the owner of defendant No. 1 they joined the proceedings. In an action in rein the owner is‑not a necessary or proper party. In that event he will not be personally liable and such suit can proceed without joining him. But if he joins the proceeding as a defendant he will be personally liable to satisfy the decree passed against the vessel. As defendant No. 3 joined the proceeding voluntarily as owner of the vessel they will be personally liable to satisfy the decree. ISSUE No.4: he employment of the plaintiff as Chief Engineer on board defendant No. 1 has been proved. It has also been established that he rendered services on board the ship upto 15‑4‑1984. He was relieved and Shipping Office Form 17 was signed by the plaintiff and the Shipping Mastir. It bears an endorsement to the effect that wages were due to the plaintiff. The photo copy of the original will be admissible in evidence. In these circumstances it is proved that the plaintiff was employed to serve on board defendant No. 1 where he remained till his discharge an part of the wages were also paid. His appointment was therefore made by the owner, its agent or Master. ISSUE No.5: The claim in suit is in respect of balance of wages for services rendered on board the vessel, defendant No.

1. The suit has been filed against the vessel invoking Admiralty Jurisdiction under section 3, 2 (n) of Admiralty Jurisdiction of the High Courts Ordinance, 1480. Under section 4(3) of the Ordinance action in rein can be instituted against the ship or property on which maritime lien is claimed by the plaintiff. It has to be seen whether the plaintiff has a maritime lien. Maritime lien is a privileged claim which a claimant exercises over the res in respect of which it arises and can be enforced by legal process. In THE TOLTEN (1946) p.135 Scott, J. characterised it as "one of the first principles of the law of the Sea". Although the principles of maritime lien were applicable to maritime jurisprudence since long but this phrase was first introduced by Sir John Jervis in his judgment in THE BOLD BUCCLEUGH (1851) 7 Moo. P.C.

267. In this judgment maritime lien has been defined as:‑ " to mean a claim or privilege upon a thing to be carried into effect by legal process ...that process to be. a proceeding in rem ....This claim or privilege travels with the thing into whatsoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and, when carried into effect by legal process by a proceeding in rein, relates back to the period when it first attached." In The Two Ellens (1872) L.R. 4 PC 161 it was defined as follows:‑ "A maritime lien must be something which adheres to the ship from the time that the fact happens which gave the maritime Hen, and then continues binding the ship until it is discharged, either by being satisfied or from‑ the laches of the Owner, or in any other way by which, by law, it may be discharged. It commences and there it continues binding on the ship until it comes to an end." A maritime lien is a privileged claim or charge upon maritime property in respect of services rendered to it or damage done to the ship. It accrues the moment cause of action arises and attaches to the property to which cause has accrued. It travels with the property secretly and unconditionally and can be enforced by an action in rem. The maritime property means the ship, cargo and freight irrespective of nationality. The claims which are recognised as giving rise to the maritime lien are seamen wages, master's wages and disbursement, damage done by a ship, salvage and respondentia. Maritime lien for wages and disbursement attaches to the ship and the freight. Maritime lien once attaches to the res is not defeated by its transfer to any other person. It remains attached with the res invisibly and as held in THE BOLD BUCCLEUGH "travels with the thing into whosoever's possession it may come". A purchaser therefore acquires the res subject to maritime lien and he cannot be relieved of it on the ground that he had no notice of this claim. Reference can be made to THE FATHER THAMES (1979) 2 Lloyd Rep 364, THE PALIMAENT BELGE (1880) 5 P.D. 197, THE RIPON CITY (1897) P.226, THE BELADIS (],936) P.51, THE TOLTEN (1946) P.135, THE IGOR (1956) 2 Lloyd's Rep 271, THE BERNY (1977) 2 Lloyd's Rep

533. For enforcement of claim for wages of Seamen action in rem and in personam can be filed. Where action in rem is filed the process of Court is issued against the ship (res) independent of the availability of the owner. Refer to THE BANCO (1971) P.137 and THE ATLANTIC STAR (1974) A.C.

436. The I jurisdiction of Admiralty Court for such action was available statutorily under the Admiralty Court Act, 1840, and Admiralty Court Act, 1861. After their repeal such jurisdiction is available under the Admiralty Jurisdiction of High Courts Ordinance 1980. Under the Ordinance Master and members of the crew of a ship are entitled to file action in rem for their wages. The term 'Member of Crew has not been defined but it is a broad expression which will include all persons who are employed to render service in any capacity to a ship and cannot be restricted to persons associated with the navigation of the ship. It is pertinent to clarify that under section 3 (2) (n) of the Ordinance the wages of members of crew or Master claimed in an action should not necessarily be for services actually rendered on board the ship. If a mariner renders any service appertaining to his duties and responsibilities on board the ship or away from the ship, he is entitled to invoke Admiralty Jurisdiction for his claim for wages. Reference can be made to THE AROSA STAR (1959) Lloyd's Rep. 396 and THE HALCYON SKIES (1977) 1 O.B.14. For his claim for wages the plaintiff has a maritime lien on defendant No. 1 where he was employed as Chief Engineer and balance of wages have not been paid. The maritime lien which attached to the ship (defendant No.l) has traveled with it even after the change of hands from one person to the other. My finding is in the affirmative. ISSUE No.6: In view of the discussion under the foregoing issues my finding is in the affirmative. ISSUE No.7: The plaintiff is entitled to a decree in the sum of Rs.68,218. with interest @ 10% per annum from the date of suit till realisation and cost. The decretal amount shall be satisfied from the security furnished on behalf of defendant No.l. AA./A‑618/K Suit decreed.