2009 PLP 1466 (CLD)

FAISAL ARAB, J.

Respondent No.1 filed Admiralty Suit claiming damages against the appellants Nos.1 and 2 and respondents Nos.2 and

3. The appellants Nos. 1 and 2 are owner and agent respectively of the ship M.T. Vega and the respondents Nos.2 and 3 are owner and agent respectively of the ship M.T. Zalea.

2. On 7-5-2005, a contract of employment was executed between respondent No.1 and appellant No.1 through its agent, the appellant No.2. Under this contract, the respondent No.1 was to serve as Chief Officer on board the ship M.T. Vega owned by appellant No.1. It was one of the terms of the employment that respondent No. 1's services were also assignable to any other ship which is owned or managed by appellant No.1 or its associate companies. On the basis of this term in the contract, the respondent No.1 was directed to serve on board the ship, M.T. Zalea owned by respondent No.2. On 18-5-2005, while performing his duties on M.T. Zalea, respondent No.1 suffered face and eye injuries. He was shifted to a hospital in Nigeria for treatment and from there he was repatriated to Pakistan. Respondent No.1 then filed suit against the appellants and respondents Nos.2 and 3 claiming damages on account of the injuries that he sustained on board the ship M.T. Zalea. The appellants were sued as they had assigned the services of respondent No.1 on M.T. Zalea invoking clause 7 of the contract of employment.

3. In the suit, the appellants, in their capacity as defendants, filed application under Order VII, rule 11, C.P.C. and Order I, rule 10, C.P.C. They sought rejection of the plaint on the ground that no cause of action has accrued to respondent No.1 against them. In the alternative, they prayed that their names be struck off from the array of defendants as the claim for damages against them does not fall within the scope of admiralty jurisdiction as provided under Admiralty Jurisdiction of High Courts Ordinance, 1980. Vide order dated 16-2-2007, the learned Single Judge of this Court dismissed the application holding that suit has rightly been filed in the admiralty jurisdiction of this Court. The appellants have impugned this order of the learned Single Judge in this appeal.

4. Learned counsel for the appellants Mr. M. Shaiq Usmani argued that respondent No.1 never served on the Vessel .M.T. Vega and as respondent No.1 sustained injuries while serving on board the ship M.T. Zalea belonging to respondent No.2, no cause of action has accrued to the respondent No.1 against the appellants for claiming damages under the admiralty jurisdiction of this Court. He further submitted that as the respondent No.1 went on to serve respondent No.2 on its ship M.T. Zalea on the basis of the contract executed with appellant No.1, therefore, the appellant No.1, out of sympathy aid on humanitarian grounds, paid for his medical expenses and a further sum was paid during the pendency of the suit, which cover the maximum lawful entitlement of the respondent No.1 under the shipping laws. Mr. Usmani concluded his arguments by submitting that the learned Single Judge ought to have either rejected the plaint for want of cause of action against the appellants as they had no nexus to the claim for damages arising from the injuries that the respondent No.1 suffered while serving on respondent No.2's ship M.T. Zalea or in the alternative, the appellants ought to have been deleted from the array of defendants as the claim against the appellants did not fall within the scope of admiralty jurisdiction and, at best, the suit in the admiralty jurisdiction ought to have been ordered to proceed only against the owners of the Vessel M.T. Zalea.

5. Learned counsel for respondent No.1, Mr. Munir A. Malik on the other hand argued that section 3(2) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 determines the scope of Admiralty jurisdiction and respondent No. l's claim for damages raised in the suit against the appellants falls within the ambit of clause (f) of subsection (2) of section 3 of the said Ordinance. Clause (I) of section 3(2) of the 1980 Ordinance reads as under:-- "(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for which wrongful acts, neglects or defaults, the owners, charterers of persons in possession of control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation', carriage or disembarkation of persons on, in or from the ship".

6. We have examined Clause (f) of subsection (2) of section 3 of the Admiralty Jurisdiction of High Courts Ordinance, 1980 in some detail. This clause can be divided into two types of claims. The first type relates to (a) claims for loss of life or personal injury that is sustained on account of any defect in the ship or her apparel or equipment; and the second part of the claim relates to (b) claims for wrongful act or neglect or default committed during the navigation or-management of the ship or during the carriage and handling of goods and passengers by the owner, charterer, or person in possession or control of the ship or of its master or crew or of any other person for whose wrongful acts, neglects or defaults, the owner, charterer or person in possession or control of a ship could be made responsible.

7. From the above analyses of section 3(2) (f) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, it becomes evident that the persons against whom the second type of claim is to be directed have been clearly described in section 3(2)(f) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, whereas no such description of persons is mentioned in the said provision for the first type of claim i.e. claim for loss of life or personal injury arising from any defect in the ship or her apparel and equipment. The lawmakers may have visualized that it may not always be the case that claim arising from the first type would be directed against persons who could be defined with certainty. There can be persons who may also be made responsible for the loss of life or personal injury resulting from any defect in the ship or its apparel or equipment in addition to the persons described in section 3(2)(0 of the 1980 Ordinance for the second type of claim. An example of such person could be a travel agent who has arranged travel of passengers on a defective ship. He may also be sued for damages for arranging a defective ship along with the owner of the ship if the facts of the case so warrant.

8. In the present case respondent No.1 while serving on M.T. Zalea sustained injuries on 18-5-2005. He was performing duties on M.T. Zalea on the basis of Clause 7 of the employment contract that was entered into between respondent No.1 and the appellants. The contract mandates that the duties of the respondent No. l could be assigned on any other vessel which is owned or managed by appellant No.1 or its associate companies at the sole discretion of appellant No.1. When respondent No.1 went to serve on M.T. Zalea, no separate or independent contract of employment was entered into between respondent No.1 and respondent No.2. It was the contract of employment executed with the appellants that was made basis for assigning duties of respondent No.1 on M.T. Zalea. It was on the basis of this contract that respondent No.1 is claiming damages against the appellants. The success of respondent No. l's claim for damages against the appellants would certainly depend on the evidence that is to be led in the suit. Therefore, in addition to respondents Nos.2 and 3, being the owner and agent respectively of the ship M.T. Zalea, the respondent No.1 was well within his rights to sue the appellants as well. The question whether during the course of his medical treatment, the respondent No.1 was adequately compensated by the appellants would be decided only when evidence is adduced by the parties and the suit is finally decided on merits. As regards trial of the suit in the admiralty jurisdiction, we are of the opinion that it should proceed in the said jurisdiction. Furthermore, if the defendants are ordered to be proceeded in two separate jurisdictions i.e. respondents Nos.2 and 3 to be tried in the admiralty jurisdiction whereas the appellants are tried on the original side of this Court, it would result in multiplicity of the proceedings.

9. We therefore, hold that suit should continue to proceed in the admiralty jurisdiction of this Court. We may however clarify that the determination of jurisdiction at times depends upon determination of certain facts, which in turn are determined after evidence is adduced in a case. Therefore, while finally deciding the suit, it would be open to the trial Court to also decide the question whether: on the basis of contract of employment that was executed between the appellants and respondent No.1, the appellants owed any duty of care to the respondent No.1 or the nature of the claims made against the appellants is too remote to make them liable for damages? It would be open to the trial Court to decide this question after taking into consideration evidence that is recorded in the suit. The determination of the above question may again throw open the question whether the jurisdiction under clause (1) of subsection (2) of section 3 of the Admiralty Jurisdiction of High Courts Ordinance, 1980 was rightly invoked against the appellants. The trial Court shall therefore, be at liberty to frame necessary issues to address all these questions. We find no lawful reason to either reject the plaint or transfer the suit to the original side or drop the appellants as party to the suit.

10. In view of the, above discussion, we are unable to differ from the conclusions drawn by the learned Single Judge in the impugned order. We therefore, dismiss this appeal is limine. H.B.T./A-62/K Appeal dismissed