P L D 1979 Karachi 789 (PLP)

Dear Sirs, Reference to your letter dated 17th February 1977. I request in your kind honour that you had supplied 50.73 tons Fuel Oil to s. s. Phoenix. For your kind information we had already discussed this matter with Mr. Haque in presence of CAPT. ZOURDOS who is the owner of the vessel presently in Karachi, who promised to make your payments. Regarding your payments and other liabilities of s. s. PHOENIX the matter already is in HIGH COURT as the vessel has been arrested by us against outstanding dues. We will always be co‑operative. Thanking you. Yours Truly, for INTERNATIONAL SHIPPING AGENCY. (Sd.) Capt. Yousuf Kazi. Yes, but Mr. Kazi and the owner both promised me to deposit U. S. dollars in N. & Grindlays Bank which they did not. (Sd.) 28‑2‑7." The defendants had examined Capt. D. N. Zourdos, defendant 2 on their behalf who stated that if the plaintiffs prove that they had supplied the furnace oil he would accept the same but the proof should come from the Customs documents and he explained why he visited Mr. Haq of Burmah Shell and denied that he made any promise to pay 50 tons of furnace oil. The supply of 50.73 M. Tons furnace oil to the ship stands proved by the evidence of Mr. Humayun Abbas P. W. 1 (Exh. 3), bunker certificate (Exh. 3/2) and the delivery receipt (Exh. 3/3) which bear the signatures of the Chief Engineer of the ship. I need not discuss the evidence as to the supply of the furnance oil in more details as after going through the Log Book of the ship, Mr. A. H. Mirza learned counsel for defendants, 1, 2 and 4 admitted that there is entry with regard to the supply of the furnace oil in question and therefore the said defendants no more dispute the supply. He however, submitted that the supplies were made at the instance of defendant 3 Captain Yousuf Kazi who along with his partner has filed Suit 105 of 1977 in this Court for recovery of the dues which includes a sum of Rs. 41,669. on account of supplies of furnace oil in question. It is the case of the plaintiffs themselves as stated in paragraph 3 of the plaint that defendant 3 requested the plaintiffs to supply furnace oil to defendant band it was he who had made the promise to the plaintiffs that defendants would pay the price of the furnance oil. This statement again finds support from the evidence of Mr. Hummayun Abbas, P. W. 2 (Exh. 3), who is the Superintendent of the plaintiffs in their Keamari Installations who stated that Capt. Yousuf Kazi requested him to supply to the ship furnace oil. He further admitted that Captain Yousuf Kazi represented himself to be the local agent of the ship. To a Court's question he stated that he did not know on whose credit the supply was made. Mr. Hummayun Abbas also stated that the original invoice of which (Exh. 4/1) is the photostat copy was sent to Capt. Yousaf Kazi and is addressed to the International Shipping Agency, Karachi. Subsequently, the plaintiffs had written a letter dated 17‑2‑1977 (Exh. 5/1) to Capt. Yousuf Kazi stating that at his request_ and on his promise that he would arrange to pay them through their bankers Messrs Chartered Bank, Karachi an amount of U. S. X3,930, they had supplied on 7‑1‑1977 50.73 M. Tons furnace oil to s. s. Phoenix and requesting him to pay the same within 3 days. Copy of this letter was also endorsed to Capt. Zourdos. In reply to this letter defendant 3 wrote letter dated 22‑2‑1977 (Exh. 4/2) which has been reproduced in extenso herein above. From the averments made in the plaint, and from the evidence of Mr. Hummayun Abbas P. W. I (Exh. 3) and the invoice (Exh. 4/1) and the letter of the plaintiffs dated 17‑2‑1977 (Exb. 5/1) it is clear that the supply of the furnace oil was made at the request of Capt. Yousuf Kazi defendant 3, and on his personal credit and the plaintiffs looked to him for the payment of their dues and the names of the owners of the vessel, defen dants 2 and 4 do not appear therein. I, therefore, hold that the furnace oil was supplied at the request of Capt. Yousuf Kazi defendant No. 3 and on his personal credit. It is admitted that the furnace oil was not supplied at the request of the Master of the vessel. However, I may mention that it is not inn dispute that prima facie the furnace oil comes within expression "necessaries" used in section 5 of the Admiralty Courts Act, 1861. However, if any precedent is needed reference may be had to the D'Vora Socony Bunker Oil Co. Ltd. v. Owners of s. s. D'Vora of Haifa ((1952) 2 All E L R 1127) wherein claim for supply of fuel oil at Algiers to a ship registered at Haifa was held to be a claim for "necessaries supplied" to a ship within the meaning of section 22 (1)(a)(vii) of the Supreme Court of Judicature (Consolidation) Act, 1925. I may also refer to the West Friesland (1859 Swabey 454) wherein "Coals" were held to be "necessaries". Since Coals and furnace oil serve the same purpose in a ship, there is no difficulty in holding that the furnace oil comes within the meaning of expression "necessaries" used in section 5 of the Admiralty Courts Act, 1861. Mr. Noor Muhammad Advocate has however, strenuously argued that since the invoice was drawn in foreign currency the plaintiffs looked for payment to the owners. However, no such inference can be drawn in the presence of positive evidence that the furnace oil was supplied by the plaintiffs at the request of Capt. Yousf Kazi and on his credit as otherwise they would not have drawn (Exh. 4/4) in the name of his firm, "the International Shipping Agency". It is correct that in the invoice in the column bearing the heading `the names of the owners/agent, the name of Pioneer Shipping Agencies Ltd., is mentioned, but that does in any manner advance the argument of Mr. Noor Muhammad as even in this column the names of defendants 2 and 4 are not mentioned. I, therefore, hold that the furnace oil was supplied on the credit of defendant

3. Mr. Noor Muhammad further argued that if the furnace oil was not supplied on the credit of the owners defendant 2 would not have promised to pay the dues as the note of Mr. S. Azharul Haq on (Exh. 4/2) shows that both Mr. Yousuf Kazi and Capt. Zourdos had promised to deposit U. S. Dollars in the National & Grindlays Bank when they met him. However, defendant 2 in his deposition has explained why and in what circumstances he rust Mr. S. Azharul Haq. His explanation is that he had gone to make enquiries from Mr. S. Azharul Haq whether the plaintiffs could supply 200 tons of bunker oil which the ship needed for sailing abroad. He, however, explains that the conversation between Capt. Yousuf Kazi and Mr. Azharul Haq was in Urdu which language he does not know. He, however, admitted that Mr. Azharul Haq had asked him whether he had money to pay for 200 tons of bunker oil and he had told that he was expecting U. S. $780,000 on account of freight out of which the supplies could be paid for. Nevertheless, he expressly denied that he over made such a promise to pay for 50 tons of bunker oil. Therefore, there being only word against word, it is not proved that defendant 2 or 4 made any promise to pay the dues to the plaintiffs. It was admitted by Humayun Abbas in cross‑examination that before supplies were made to foreign ship advices were received from abroad and payment was made in foreign exchange in advance. He further admitted that in the present case the plaintiffs did not receive advice (nomination) from abroad nor did they receive any payment in foreign exchange. From the above admission it clear that the plaintiffs did not look to the owners of the ship for payment and did not supply the furnace oil upon the credit of the owners. Even otherwise, they would have not done so in view of the provisions of the Foreign Exchange Regulations which prohibit entering into contract or agreement which would directly or indirectly evade or avoid in any way the operation of any provision of the Act or of any rule, direction or order made therein and giving any credit to a person not resident in Pakistan. I, therefore, come to irresistible conclusion that the supply was made only upon the credit of defendant

5. I have already found that the furnace oil supplied to the ship comes within the expression or term `necessaries'. 'Necessaries' supplied to a ship are prima facie presumed to have been supplied on the credit of the g ship but such presumption can be rebutted. In support of the above proposition, I may refer to the following passage in the judgment of the Privy Council in Foong Tai & Co. v. Budhdeister & Co. (1908 A C 458) which appears at page 469 of the report :‑ "But on an examination of the authorities to which their Lordships have been referred, and especially of the cases of The Twentje (1859) 13 Meo. P C 185 and The Underwriter 1 Asp. 127 it will be found that what they really decide is this‑that, as necessaries supplied to a shop were prima facie presumed to have been supplied on the credit of the ship, and not solely on the personal credit of her owners The Perla 1 Swq. 230 the form in which accounts are rendered by an agent, who has supplied or paid for necessaries, to his principal is evidence to rebut that prima facie presumption and show that the agent looked for payment to the principal alone." This case has been followed in the Owners of the Steam Ship Helwa Maru v. Bird & Co. (A I R 1923 Rang. 163) of the report :‑ "Necessaries supplied to a ship are of course prima facie presumed to have been supplied on the credit of the ship but there is a . passage in the judgment of their Lordships of the Privy Council in the case of Foong Tai v. Buchheister 1908 A C 458 which shows that presumption can be rebutted . . . . ." This presumption in this case stands rebutted as I have already found that the furnace oil was supplied upon the credit of defendant 3. 1n the modern days it is normal practice to supply necessaries to a foreign ship which has the local agent on the credit of such agent acting either upon the general instructions or upon the specific authority of the owners. I may here refer to the following passage of Hill, J., in the Modileff (1,921 P. 136) which appears at page 244 of the report; "It is clear that the mere fact that the plaintiff is an‑ agent of the owner does not deprive him 'of a right to sue in rein. The sections contain no such limitation. As Dr. Lushington as long ago as 1859 said in The West Friesland 1859 Swa. 454 : There is nothing in the Act to exclude agents from suing, and nothing in the relation itself, apart from positive law . . . . In recent times, much more than in Dr. Lushington's day, the most usual way for necessaries to be supplied to a shop elsewhere than in the home port is upon the credit of the ship's agent, acting either upon general instructions or upon specific authority of the owner. Such method of supply has taken the place of bottomry, greatly to the advantage of ship owners. The agents of foreign owners are ready to pledge their credit for necessaries because they know that they can secure re‑payment from the owner not only by proceedings in persona but also by proceedings in rein. In modern times actions in rein in this Court for necessaries have more often been brought by ship's agents than by any other class of necessaries men." Now, what remains for consideration is the effect of supplies made upon the credit of defendant

3. It is well settled that there is no maritime lien for necessaries supplied to a shop (See : Foong Tai & Co. v. Buchheister & Co., Heinrich Bjorn & Co. ((1886) A C 270) and the plaintiffs have brought this suit in rein which is obvious from the fact that along with the plaint they filed an application under rule 731 of the Sind Chief Court Rules (O. S.) for arrest of the ship and otained a warrant which was executed. This could be done only in action in rein for rule 731 (ibid) provides as follows; "When a suit is instituted in rein, any party may, on filing an affidavit, obtain from the Court a warrant for the arrest of the property, proceeded against." Since I have found that the supplies have been made on the credit of defendant 3, the suit in rein in not maintainable. However, Mr. Noor Muhammad learned counsel for the plaintiffs contended that the plaintiff's action is not only in rein but also in personam as is obvious from the fact that they have joined the owners and local agents as parties to the suit. But it is not permissible in an action on necessaries in admiralty jurisdiction to proceed both in rein and in personam, in view of the provisions of section 35 of the Act. It may be useful to reproduce the said provisions "The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rein or by proceedings in personam." Since I have already found that the plaintiffs have supplied the furnace oil upon the credit of defendant 3, the local agent the claim in rein is not maintainable. Since I have already found that action against defendant 1 in rein is not maintainable and since supply was not made upon the credit of the owners therefore, suit against defendants 2 and 4 is also not maintainable. In the result I dismiss the suit against them and vacate the order of arrest of the ship. She will be released in this case. As far as defendant 3 is concerned since I have found that the supply was made upon the credit of defendant 3 and since I have allowed the claim made by defendant 3 in their suit, being Suit No. 105 of 1977, in respect of the said supply, it would have been just and proper to treat the suit as ordinary suit had an application to that effect been made, but no such application was made in spite of clear indication. I, therefore, dismiss the suit against defendant 3 also but with no order as to costs. So far defendant 5 is concerned it has been joined without any cause therefore, suit against it is dismissed with costs. M. A. K. Suit dismissed.