P L D 1981 Karachi 246 (PLP)

"In The High Court (Admiralty Division) Admiralty Action in rem against (The Ship X or as may be describing the res) The owners of The Ship `Y' or as may be‑Plaintiff and The owners of the ship 'X' or as may be describing the res‑Defendants." The writ of arrest or summons was also issued under the same title addressed to the owner of the ship or persons interested in the ship. It was not necessary that the plaintiffs may always be owners of the ship. They may be persons, company, Master or crew, entitled to bring an action in rem and thus the plaintiff's description could suitably be amended. In this context the main point to be noted is the description of the defendant in the pleadings. First description of the res is given to the identify the ship or property and the defendants are described as "Owners of the ship..." without giving the full name and description of the owner. The writ for the arrest of the ship issued by the High Court of Admiralty was intended to cause notice to all the world including the owner and any person interested in the ship. Reference can be made to the case of Ahmad Investments Limited v. m. v. Sunrise IV P L D 1980 Kar. 229 where after considering all the leading English authorities it was observed as follows :‑ "According to practice in England, the action in rem in the admiralty jurisdiction was commenced with the issuance of writ for the arrest of the vessel which was intended to cause notice to all the world with regard to the claim endorsed upon the (Halsbury's Law of England, 4th Edn.. Vol. I, paras. 360 & 365 at pages 245 & 247). After the service of the writ, the owners of the property proceeded against and all persons directly interested in the cause were then entitled to appear and defend, without filing any affidavit and showing their interest, at all time before the judgment." Again the principles governing the action in rem were elucidated in the following manner :‑ "In a suit filed in rem, the prime action lie against the res or the property itself and in the exercise of the said jurisdiction it is left to the Court to exercise the same either by proceedings in rem or by proceedings in personam. The ship after all is an inanimate object and cannot defend itself, and, of necessity, the action is to be defended by the Master, the owner or any person interested in the vessel irrespective of the fact whether they were joined as a party to the suit or not. The plaintiff itself may also mention the name of the owners without formally impleading them as party to the suit." In this context it would not be out of place to reproduce the following passage from Halsbury's Laws of England, Vol I (3rd Edn., page 80). "The owners of the property proceeded against and all persons directly interested therein. may appear and defend, without filing an affidavit and showing their interest, at any time before judgment. Further, any person not named in the writ may intervene in an Admiralty action in rem and appear on filing an affidavit showing that he is interested in the res under arrest or in the fund in the registry. Such persons are mortgagees, trustees in bankruptcy, underwriters who have accepted abandonment, charterers, persons who have possessory liens, or competing maritime‑ liens, and generally persons who are plaintiffs in other actions in rem against the same property. But if the intervention is unnecessary to protect the inter vener's right he will be refused his costs. Persons who intervene in order to defend the action cannot set up defences which are not open to the owner of the res." We hope in future proper practice shall be followed. Regarding the matter historically and legally an action in rem is against a ship without making it as a defendant. The real defendants are described as owner of or persons interested in the ship, and the writ of arrest may be effected by serving it on the ship which may be accepted by the Master, owner or by nailing or pasting it on the Mast or other conspicuous party of the ship. As a conse quence of such service if the owner or any person interested in the res enters appearance and puts up the defence then the person so appearing becomes party to the action and thereby becomes personally liable for whatever may be decreed against him. If no appearance is entered the action remains as an A action in rem operating only against the ship arrested and if a judgment is passed in favour of the plaintiff it can be enforced by sale of the ship but not against the owner personally or any of his property. If any authority is needed reference can be made to the observations made by Lord Denning M. R. in the case of The Banco (1971) 1 A E R 524.

4. The appellants' objection to the appearance of the respondent No. is based on misunderstanding of Admiralty practice as discussed above. The appellants by raising objection at a preliminary stage cannot debar the owners or persons interested in the ship from entering appearance and putting up the defence.

5. Mr. Kazmi the learned counsel for the appellants submitted that in any event the learned Single Judge should have ordered to try the issue relating to the ownership of the vessel as a preliminary issue. The learned (1) (1971) 1 A E R 524 Single Judge has considered this objection and rightly held that as this issue arises out of the pleadings of the parties the plaintiff would be entitled to get an issue framed on the point when the Court frames the issues in the suit. In the face of the bill of sale and registration certificate in favour of respondent No: 2, at this stage of the proceeding, the trial Court may not embark upon an enquiry relating to the genuineness of the title claimed by respondent No.

2. After the issue have been framed the appellants will be at liberty to file proper application for trial of any issue as preliminary issue but at this stage neither the respondent No. 2 can be debarred from filing written state ment nor any order for trial of any issue as preliminary issue can be passed. We, therefore, find no merit in this appeal which is dismissed in limine. Appeal dismissed.