1984 PLP 2265 (CLC)

(2) Whether the suit is maintainable under the Admiralty Jurisdic tion of this Court ? (3) Whether the alleged claim of the plaintiff creates any maritime lien. If not, whether the suit is maintainable against the defen dants 1 and 3. (4) Whether the plaintiff incurred Rs 7,55,178.63 on account of dis bursements made on behalf of defendants Nos. 1 and 4 ? (5) Whether the defendants Nos. 1 and 3 are liable to the plaintiff on account of disbursement made by the plaintiff on behalf of de fendant No. 1 ? (6) Whether the change of ownership of defendant No. 1 debarred the plaintiff from the expenses incurred on defendant No. 1 ? Issues Nos. 2 and 3 ; The Maritime lien has been explained in Halsbury's Laws of England third Edition Vol. 35 at page 781 as under :

"A maritime lien is a claim or privilege upon a maritime res in res pect of service done to it or injury caused by it (a). Such lien does not import or require possession of the res, for it is a claim or privilege on the res to be carried into effect by legal process (b). A maritime lien travels with the res into whosoever possession it may come, even though such res may have been purchased without notice of the lien (c) or may have been seized by the sheriff under a writ of fieri facias issued at the instance of execution creditors (d) a maritime lien is inchoate from the moment the claim or privilege attaches, and when called into effect by the legal process of a proceeding in rem relates back to the period when it first attached (e). The learned counsel for the defendants 1 and 3 has stated that the present suit in the Admiralty jurisdiction of this Court is not maintainable because such suit cannot be entertained under the Admiralty jurisdiction of High Courts Ordinance XLII of 1980 (hereinafter referred to as Ordi nance of 1980). This Ordinance came into force on 2nd September, 1980. The learned counsel for the plaintiff has stated that the plaint was pre sented in this Court on 6th July, 1980 ; whereas the Ordinance was en forced in September, 1980 therefore, the present case would be covered by the Admiralty Act, 1861 (hereinafter referred to as Act of 1861). The Ordinance has repealed Act 1861 and the Courts of Admiralty (Pakistan) Act, 1861 and the Courts of Admiralty. Defendants have stated that as the Ordinance is procedural in nature, therefore, it would apply restros pectively. In my opinion Act of 1861 and the Ordinance of 1980 are not merely procedural ; but these laws create certain rights. Some significant departure has been made in the Ordinance. These laws create the rights of a party to invoke the Admiralty jurisdiction of the Court in certain circumstances. Under the Ordinance an action in rem against the ship has been restricted. Under the Ordinance the claim of the plaintiff by an action is covered by section 3 (2)(o) which provides any claim by a master shipper, charterer, or agent in respect of disbursements made on account, of a ship. Under section 4 (4) of the Ordinance an action in rem can be invoked against the ship if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person who was the owner or charterer of, or in possession or in control of the ship when the cause of action accrued. In the present case admittedly the cause of action in presonam accrued to the plaintiff against defendant No. 4 who was the owner of the defendant No.

1. At the time of institu tion of suit the defendant No. 4 was not the owner of defendant No. 1, therefore, the suit was hit by section 4 (4) (a). The provision is not similar to sections 4 and 5 of the Act 1861. I am, therefore, of the opinion that the present suit would be dealt with under the Act and not, under the Ordinance. The plaintiff has avered that be paid the advances to the owner and supplied provision stores and made repairs. I have to see whether the plaintiff's case is covered by sections 4 and 5 of the Act which reads as under:

"Section 4.-The High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of cause the ship or the pro ceeds thereof are under arrest of the Court. "Section 5.-The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales. The learned counsel for the plaintiff has referred to Daniel Harmer v. William Errington Bell and others (P C 7 M P C 267), 50 L.J.Q.B. 421 and English Reports (Ecclesiastical, Admiralty and Probate Division), Vol. 167 page 283-286 to support his contention that claim or privilege travels with the thing into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attached, and when carried into effect by legal process by a proceeding in rem, relates back to the period when it first attached. On the other hand learned counsel for the defendants has re ferred to 1967 (2) Lloyd's List Law Reports the" Monicas and 178 Lloyd's Law Reports 185. "The Aventicum" in support of his con tention that the claim made by the plaintiff does not create maritime lien in respect of supply. Sections 4 and 5 of the Act, 1861 have been interpreted in the judgment reported in Messrs Diamond Engineering Mechanical, Electrical Marine Engineering Contractors v. m. v. Luctor I and others (P L D 1978 Kar. 837) and the relevant observation reads as under :-- "The fourth section quoted above, does not envisage any maritime lien because it only gives jurisdiction in respect of "any claim for building, equipping or repairing of a ship if at the time of institution of the cause the ship or the proceeds thereof are under arrest of the Court". The essence of jurisdiction, as per above section, is therefore, dependent upon the ship being under arrest of the Court at the time of the institution of the cause, which in this case the ship was not. As the right to proceed under the said section is dependent upon the wholly fortuituous circumstances of the ship being under the arrest of the Court is enough to preclude the idea of a maritime lien, which is a claim attaching to the res from moment the obligation arises and travelling with res into whosesoever possession it may come. The claim with regard to the supplies is covered by the 5th section. A reading of the said section also completely ousts any consideration of maritime lien because it comes into play only when the owner of the ship is not domiciled in Pakistan at the relevant time. Because if there is an owner domiciled in Pakistan then, according to the said section, the Court of Admiralty will have, no jurisdiction in the matter, while the essence of maritime lien is above any contingencies, as the same attaches to the vessel. On the plain reading of sections 4 and 5 of the Act, 1861, it is, therefore, clear that plaintiff's claim of mari time lien is not sustainable under the provisions of the said two sections. In this connection reliance may be placed on a judgment of the Privy Council in the case of the Two Ellens where the pro visions of the aforesaid two sections came to be discussed at length by Lord Justice Mellish, who delivered the judgment of the Court. The reliance is also placed on Halsbary's Laws of England, Vol. 1 at page 232 wherein connection with the extent of jurisdiction of Admiralty Court, it is mentioned :

The supply of goods and materials to and the repair of a ship does not confer a maritime lien. The repairer has, however, a common law possessory lien." Respectfully following this authority. I hold that the present suit is not maintainable against defendants Nos. 1 and

3. The ship has changed hand and now the defendant No. 3 has become the owner of the ship. There is no maritime lien against the ship. The plaintiff cannot claim, any relief against defendants Nos. 1 and

3. The learned counsel for the plaintiff has referred to Capt. Yousuf Kazi and another v. Ss. Phoenix and others (P L D 1978 Kar, 1052). Wherein it has been held that the person who pays for necessaries supplied to a ship, has as against that ship and her owner, as good a claim as the person who actually supplied them, and, further, that he who advances money to the person who thus paid for the purpose of enabling him to pay, stands in the same position as the person to whom the money is advanced. It is further held that maritime action in rem have more often been brought by ship's agent than by any other class of necessaries men ; but in the said authority it has been observed in view of the provisions of section 35 of the Act that a plaintiff could proceed either in rem or in personam ; but they could not proceed both in rem and personam. Therefore, on this score also the suit of the plaintiff is not maintainable. Issue No.

4. The plaintiff in order to prove that he had incurred expenses had produced three witnesses P.W. 1 Fazal Mishin is the Managing Director of the plaintiff. He has stated that the vessel, defendant No. 1 arrived at Karachi in the early by year 1976. The defendant No. 4 is the owner of defendant No.

1. He has also arrived alongwith the ship at Karachi. The defendant No. 4 appointed the plaintiff as agent of the vessel. The plaintiff made payment of Rs. 7,55,168.78 on account of crew, pay ment of K.P.T. Custom duties, supply of provision store and hired launches. The plaintiff also supplied oil to the ship, medical facilities to the crews and repairs of the ship Details of expenditure has been men tioned in Exh. P/1. The plaintiff is a limited Company and the Company maintains its account but the plaintiff has not produced the Accounts Books in order to verify that such expenditure has been incurred. The plaintiff has produced Exhs. A/1 to A/72 issued by various persons for the amounts paid by the plaintiffs A/1, A/2, A/3 and A/4 are bills issued by Shabbir Engineering Works. These bills do not show that the payments had been received. Moreover, D. W. Muhammad Iqbal has deposed that Masood Ali Khan was running business in 3 different concerns. These bills bear the signature of Masood Ali Khan, but Masood Ali has not appeared to prove these documents. These documents were placed on record subject to the objections and as these documents have not been proved as the person who had issued the bills has not been examined and proved the contents of the documents. The documents are excluded from consideration. P. W. Muhammad Iqbal has produced bills Exhs. P/3, P/4, P/5, P/6, P/7, P/8, P/9 and P/10 (A/23, to A/27, A/29 to A/31 respectively) stated to be issued by Murad and Company. The owner was Masood Ali Khan. These, bills also do not establish that the pay ments have been received. The proprietor has signed these bills, but he himself has not appeared as a witness and P.W. has stated that Masood Ali Khan used to maintain the accounts of the firm; but the account book has not been produced. This P. W. has stated that he had left the services of Masood Ali Khan. No reason has been given as to why Masood Ali Khan has not appeared. Therefore, on reliance can be placed even on Exhs. P/3 to P/10. P. W. 3 Fazal Ahmed stated that Shabbir Hussain is his brother and he is doing the ship repairing work and some repairs of defendant No. 1 was done by Shabbir Engineering Works. He produced the bills Exhs. P/11 to P/14 (A/ l A/2, A/3 and A/14) respectively. This witness has stated that these bills bear the signatures of his brother Shabbir Hussain. As stated above these bills do not in dicate that the payments have been received, but this witness has stated that his brother has told him that the payments have been received from the plaintiff. The plaintiff has not produced Shabbir Hussain in order to state that repairs had been done by him and that he had received pay ment. According to this witness Shabbir Hussain has gone to perform Umra ; but no prayer was made by the plaintiff to examine Shabbir Hussain on his return frown Umra. The statement of this witness does not prove that the payments had been received. P. W. 4 Muhammad Rafiq has stated that his father is engaged in launch business. He owns 5/6 launches and he used to take master, ship crew and the provisions supplied to the ship on his launch. He produced the bills Exhs. P/15 to P/20. These are bills issued by Ahmed Moosa Launch contractor. Again these bills do not show that payments had been received by Haji Moosa. Haji Moosa has not appeared as a witness. P.W. 4 has stated that he is admitt ed in the hospital. He has further stated that his Munshi Faizoo pre pared these bills Exhs. P/15 to P/22 (A/41 to A/48, but Faizoo has not been produced, to fact the persons who have the primary knowledge of the transaction have not been produced and some other persons have been produced in their places to identify the signatures and gave same state ments about the transactions. The plaintiff did not produce their Accounts Books to verify the correctness of the plaintiff's claim made in this suit. Out of 72 documents only 22 have been exhibited through P.Ws. 2, 3 and 4 respectively and the other documents have not been ex hibited. They are inadmissible in evidence and there is no proof of the contents of those documents. I, therefore, hold that the plaintiff has fail ed to establish the payments made by him to defendants Nos. 1 and

4. The issues is decided against the plaintiff. Issue No.

5. The defendant's witness D. W. I Mr. Habib has stated that defendant No. 3 has purchased the ship from defendant No. 2 through agreement Exh. D/l. The date of agreement is 22nd May, 1980. The defendant No. 3 had purchased the ship for scrapping of the ship and the ship has been scrapped and they have not received any notice from the plaintiff for the claim made by them. The plaintiff in para. 1 of the plaint has stated that the ship had sailed on 26th May, 1976 from Karachi for Damman Saudi Arabia, where the owner of the ship escaped and the said ship was taken over by the Saudi Government and sold the same to defendant No.

2. In para. 2 of the plaint the plaintiff stated that the defendant No. 2 has sold the defendant No. 1 to the defendant No. 3 for the purpose of scrapping vide their agreement, dated 22nd May, 1980. The learned counsel for the plaintiff has stated that the defendant No. 4 had admitted the claim of the plaintiff against the defendant No. 1, therefore, the -suit is maintainable under the Admiralty jurisdiction. The plaintiff has no claim against defendant No.

3. If the plaintiff succeeds against defendant No. 1 he is entitled to the decree, and if he fails against defendant No. 1 he cannot press his claim against the defendant No.

3. I have already held that the claim of the plaintiff is not maintainable under Admiralty jurisdiction against defendant No.

1. The defendant No. 3 is a purchaser for consideration. He had purchased the defendant No. 1 in 1980 ; but uptil the time the plaintiff has not made any claim against defendant v No.

1. He did not make his claim before the Saudi Government. The vessel has changed hands, therefore, in view of the findings on issues Nos. 2 and 3 the suit is not maintainable against defendant No.

3. Issue No.

6. It is contended by the plaintiff's counsel that no proof has been made that the ownership has been transferred. There is no evidence that how the defendant No. 2 has sold the vessel to defendant No.

4. No bill of sale has been filed. It is also not shown that what are the terms of the sale. . The defendant has produced the memorandum Exh. D/I through which the vessel has been purchased. The plaintiff has himself admitted in para. 2 of the plaint that defendant No. 2 had sold the vessel to the defendant No.

3. In view of admission of the plaintiff it cannot be urged that the ship had not changed hands. The defendant No. 3 was not the owner of the vessel. when the cause of action accrued to the plaintiff in the year 1976. The plaintiff was not vigilant to pursue his cause upto 11th June, 1980 when he presented the plaint in the High Court of Sind. I decide this issue also against the plaintiff. Issue No.

1. The case of action according to the plaintiff himself accrued to him on 13th March, 1976 ; but the suit has been filed on 11th June, 1980, According to Article 61 of the Limitation Act, the period of limitation is 3 years. The learned counsel for the plaintiff has stated that Article 120 would be applicable where the period of limitation is 6 years. In view of the specific provision. Article 120 is not attracted. The learned counsel has stated that under section 13 of the Limitation Act, the time during which the defendant has remained absent from Pakistan would be excluded in computing the period of limitation. The plaintiff has filed the suit against defendant No. 1 and he has impleaded defendant No. 3 as he had purchased the vessel (defendant No. 1). It is stated by the plaintiff that the ship was beached at Karachi on 10th June, 1980. The defendant has not specifically denied this fact, therefore, the period for which the defendant No. 1 was away from Pakistan would be excluded. The suit against defendant No. 1 is within time. The plaintiff has arrayed the defendant No. 3 being purchaser of the vessel : and the plaintiff's learned counsel has frankly conceded that his claim against the defendant No. 3 would arise if the defendant No. 1 has been held responsible for payment, therefore, the suit is within time. In the result the suit of the plaintiff fails which is hereby dismissed, but leave the parties to bear their own costs. M. Y. M. Suit dismissed.