1989 PLP 588 (CLC)

SALEEM AKHTAR. J:‑The petitioner is a registered association of Marine Engineers of Pakistan. The respondent No.l has been appointed by the respondent No.2 under section 6 of the Merchant Shipping Act 1923. Section 8 of the Act provides for the duties of the Shipping Master, the respondent No.l which inter‑alia includes the superintendence of the engagement and discharge of staff as provided by the Act and also to perform such duties as required under the Act and the Merchant Shipping Acts. On discharge of service of Engineer the Shipping Master is required to issue certificate of discharge. Although section 43 of the Act requires that the form of discharge certificate should specify the period of service and the time and place of discharge the respondent No.l has added two additional columns of (1) ability and (2) general conduct. Such addition is in violation of section 43 and UNO Convention No.22 of 1926 which has been ratified by the Government of Pakistan. It has been alleged that if any adverse entry is made in these additional columns of the Discharge Certificate then it will create difficulties to the Seaman in seeking future employment. The respondent No.l is not required to enter remarks regarding ability and character of a Seaman in the Discharge Certificate. Such certificate if required should be issued separately. In this regard it has been alleged that the respondent No.l in the latest Certificate of Discharge issued by him presently to the Seamen has altered column of ability and general conduct with remarks 'endorsement if desired for'. Even this amendment is in violation of section 43 of the Act. Therefore, it has been prayed that the insertion of column of ability and general conduct in the certificate of discharge is illegal, without lawful authority and is liable to be deleted. The respondent No.l has filed its counter‑affidavit in which it has been pleaded that in pursuance of section 129 of Merchant Shipping Act 1894 the Master of Vessel is required to report on the character and ability of Seaman either on his discharge or on payment of his wages a certificate in a form sanctioned by the Central Government stating (a) the quality of his work and (b) whether the Seaman has fulfilled his obligations under the agreement with the crew. This was further elaborated by circular 3 of 1894 issued by the Merchant Marine Department. The requirements of sections 43 and 43‑A of the Merchant Shipping Act 1923 had been merged by the then Government of India in the circular while providing the form (Port 127) of Continuous Discharge Certificate. Subsequently this form has been replaced by Shipping Office Form No.20 in a book form. The instructions to the Masters in the official log book also make it incumbent upon the Master to report on the character of his crew. In fact the Master is under a legal obligation to sign a report of quality of work of a Seaman discharged from ship. The Continuous Discharge Certificate is the final document for all purposes and is required to contain all the particulars alongwith the details of work performed by him and the report of his conduct and ability as awarded by the Master of the vessel concerned. These entries‑have been required to be made in compliance with the law of the land. The columns of ability and general conduct have been prescribed by the Central Government in exercise of the powers conferred by law and cannot be termed as wrongful inclusion. In case any adverse entry is made by the Master the same is properly investigated under the existing rules and decisions are recorded accordingly. It has been stated that ILO Convention No.22 has been ratified by the Government of Pakistan but the Merchant Shipping Act and circulars have not been amended , by necessary local legislation. The Shipping Officer Form 20 is a replacement in book form of Form No.Port 127 prescribed by Central Government in pursuance of Merchant Marine Department Circular No.3 of 1934. Mr. Makhdoom Ali Khan, the learned counsel for the petitioner has contended that where a Seaman is discharged the respondent No.l is bound to issue two certificates under law (1) the Continuous Discharge Certificate and (2) Certificate relating to ability and character and fulfilment of his obligations: He further contended that this is a practice in the shipping world and even ILO Convention which has been ratified by the. Government of Pakistan provides that certificate of ability should be issued separately from the Continuous Discharge Certificate. Before considering the contentions of the learned counsel for the petitioner it would be proper to reproduce sections 43 and 43‑A of the Merchant Shipping Act as follows:‑ "43(1). The Master shall sign and give to a seaman discharged from his ship in the Provinces and the Capital of the Federation, either on is discharge or on payment of his wages a certificate of his discharge in a form sanctioned by the Central Government specifying the period of his service and the time and place of his discharge. (2) If a Master acts in contravention of this section, he shall for each offence be liable to a fine which may extend to one hundred rupees. (3) The Master shall also upon the discharge of every certificated officer, whose certificate of competency has been delivered to and retained by him return the certificate to the officer, and if, without reasonable cause, he fails to do so, he shall for each offence be liable to a fine which may extend to two hundred rupees. (43)‑A The Master of every ship except home trade ship of a burden not exceeding three hundred tons, shall sign and give to a seaman discharged from his ship in the provinces and Capital of the Federation, either on his discharge or on payment of his wages, a certificate in a form sanctioned by the Central Government stating:‑ (a) the quality of work of the seaman; or (b) whether the seaman has fulfilled his obligations under the agreement with the crew. Section 43 makes it compulsory on the Master to sign and give a certificate of discharge to a seaman when he is discharged or on payment of all his wages. Likewise section 43‑A makes it compulsory on the Master of every ship to issue a certificate at the time of discharge of seaman or on payment of his wages stating the quality of the work of a seaman or whether he has fulfilled his obligations under the agreement. This provision does not apply to home trade ship of a burden not exceeding 300 tons. Contravention of these provisions of law has been made an offence liable to fine. Therefore, A the Master is bound to issue certificate as required by law. The question arises in what form the certificate relating to the discharge, ability and conduct of a seaman may be issued. Sections 43 and 43‑A both provide that the certificate shall be in a form sanctioned by the Federal Government. Therefore, there should be a form specifying the particulars to be mentioned by the Master duly approved by the Federal Government. From the legislative history of both these sections it is clear that at the time when Merchant Shipping Act 1923 was promulgated section 43‑A did not find place in it. However, by the Indian Merchant Shipping (Amendment) Act 1931 section 43‑A was inserted. The respondents have produced copy of circular and several forms of certificate which were issued to a seaman under sections 43 and 43‑A of the Act. First form is the Shipping Office Form No.22 (Port 103). It is a certificate under section

43. Besides this, certificate under section 43‑A was issued in Shipping Form No.21 (Port 102). Previously these certificates were issued separately in these forms in loose sheets. Thereafter the Government of India approved and introduced Form Port 127 known as Continuous Discharge Certificate. In this form the afore-stated forms under sections 43 and 43‑A were consolidated. A reference to this fact is mentioned in the Merchant Marine Department Circular No.3 of 1934 issued from New Delhi, on 6‑2‑1934 which is annexure 'C' to the counter‑affidavit. After partition the certificate under sections 43 and 43‑A in same form i.e. Form Port 127 and its continuation sheet Port 128 as sanctioned and approved by the Central Government of India in 1934 continued to be issued to Seaman. This form contains columns specifying the particulars required to be mentioned by section 43 and section 43‑A. The certificate in this approved form was issued in loose sheet. Recently the Government of Pakistan has converted it into a book form like a passport. It includes all the particulars of the seaman as required by sections 43 and 43‑A. The Continuous Discharge Certificate from its inception was a continuous record of service of Seaman. By merely converting the form into a book form like passport the respondents have not changed or altered the form in which certificate was issued from the year. 1934. It is pertinent to note that since then no one seems to have raised any objection. Even after the creation of Pakistan in 1947 onward there is nothing on record to show that any one had lodged any protest demanding separate certificates under sections 43 and 43‑A. The correspondence filed by the petitioner shows that some objections were raised in the year 1975 but the nature of the objections is not known as the relevant correspondence has not been filed. The petitioner's grievance to strike down the Continuous Discharge Certificate is based on the interpretation of sections 43 and 43‑A. AS observed earlier both these provisions leave the discretion . to the Federal Government to prescribe a form for such certificate B and as the Government has prescribed a Form for the certificate prima facie there does not seem to be any violation of any provision of law. Mr. Makhdoom Ali Khan, the learned counsel for the petitioner has contended that it is violation of the International Convention 22 of 1926, therefore, the practice and even the law should be brought in accord with the International Convention which has been ratified by the Government of Pakistan. He has referred to Article 5 of the Convention Concerning Seamen's Article of Agreement (Convention 22 of 1926) of ILO which reads as follows:‑ "Article 5(1) Every seaman shall be given a document containing a record of his employment on board the vessel. The form of the document, the particulars to be recorded and the manner in which such particulars are to be entered in it shall be determined by national law. (2) The documents shall not contain any statement as to the quality of the seaman's work or as to his wages." This article leaves the determination of the form and particulars in which the certificate is to be issued to the Government. The Government has issued, adopted and approved the form which is in vogue for the last more than 50 years. According to Mr. Makhdoom Ali Khan section 43‑A was inserted as a result of this Convention and,, therefore, the provisions of Article 5 should be enforced. No doubt section 43‑A was enacted after the Convention but it does not refer to the prohibition as required by Article 5 (2) of the Convention. This fact clearly indicates that the legislature did not deem it proper to codify clause 2 of Article 5 which is the sheet anchor of petitioner's case. The learned counsel has referred to Imperial Tobacco of India Ltd. v. The Commissioner of Income Tax P L D 1958 SC 125 where it was observed that "statutes are not to be construed as abrogating International Law unless their language leads to that result Reference was also made to Hanover Fire Insurance Co. v. Maralidhar Banechand P L D 1958 SC 138 where the following passage from Maxwell on Interpretation of Statutes, Tenth Edition P.48 was quoted with approval:‑ "Under the same general presumption that the legislature does not intend to exceed its jurisdiction, every statute is to be so interpreted and applied, as far as its language admits as not to be inconsistent with the comity of nations, or with the established rules of International Law. If, therefore, it designs to effectuate any such object, it must express its intention with irresistible clearness to induce a Court to believe that it entertained it, for if any other construction is possible, it would be adopted to avoid imputing such an intention to the legislature. All general terms must be narrowed in construction to avoid it. But if the statute is unambiguous, its provisions must be followed, even if they are contrary to international law". Reference can be made to following observation in Dicey and Morris on The Conflict of Law, Tenth Edition Vol I at page 9:‑ "If the text of the convention is not incorporated in the statute, is the Court entitled to look at the convention? It was at one time supposed that the Court could only do so if statute was ambiguous and if it referred expressly to the convention. But since 1967 it has become clear that this is not so and that the Court can look at the convention even though it is not expressly referred to in the statute, provided the statute is ambiguous and provided the Court is satisfied by extrinsic evidence that the statute was intended to implement the convention. This is because there is a prima facie presumption that the Parliament does not intend to act in breach of international law including specific treaty obligation, but if the statute is unambiguous it must be given effect, whether it carries out the treaty obligation or not." These observations lay down the well recognised principles of interpretation of statutes. If the application of any statute involves the consideration of any International Law then attempt should be made to interpret the statute in consonance with the International Law. However, if the language. of the statute. is unambiguous and does not permit such an interpretation, the statute shall prevail. Applying these principles to the provisions of sections 43 and 43‑A of the Act we find that the language of section 43‑A completely abrogates Art.5(2) of the Convention. Art. 5(1) provides that every seaman shall be given a document containing his employment onboard the ship, form of which is left to be determined by the National Government. This requirement is already met by the provisions of section

43. Article 5(2) provides that the documents issued under Article 5(1) shall not contain any statement as to the quality of the Seaman's work or wages. Section 43‑A provides that the certificate issued by the Master shall state the quality of the work of the Seaman or whether the Seaman has fulfilled his obligations with the crew. Therefore, section 43‑A enacts completely contrary to what Art.5(2) provides. The provisions of section 43‑A are mandatory and compulsory inasmuch as its violation is an offence. Sections 43 and 43‑A do not require two separate certificates to be issued but leave the form to be prescribed by the Federal Government. Applying the aforestated principles of interpretation we find that the language of section 43‑A is unambiguous and, therefore, effect has to be given to it in preference to the provision of the Convention, no matter it has the effect of abrogating a clause of a treaty. The Convention even after notification does not have the force of law, unless the ratifying state takes steps to give effect to it in its own territory by suitable legislation. The conflict in the present case cannot be resolved D by a harmonious construction, therefore, the respondents are not bound to follow Article 5(2) of the Convention in derogation to the Act. This being the legal position merely by converting the prescribed approved form which has been in operation for more than 50 years in a book form which contains columns regarding ability and character, the respondents have not acted without lawful authority: From the correspondence produced by the petitioner it seems that the Merchant Mercantile Marine Department has promised to look into the problems raised by the petitioners. We, however, expect that the Federal Government shall look into the grievance of the petitioners and the Seaman with a view to provide form of certificate which is internationally accepted, recognised and practised by the shipping world. Mr. Syed Inayat Ali, the learned counsel for the respondents has contended that the petitioners are not an aggrieved party and they have no locus stand to file this petition. As we are disposing of the petition on other grounds we do not feel it necessary to express our opinion on this aspect of the case. The petition is dismissed. A . A . /‑M‑650/ K Petition dismissed