1985 PLP 1355 (CLC)

The plaintiffs filed an application under section 20 of the Arbitration Act, 1940 before the Admiralty Jurisdiction of this Court seeking the following reliefs:- (i) Order defendants to file the agreement in Court; (ii) Refer the Matter of Salvage Claim to Committee of Lloyds at London for Arbitration; (iii) Direct defendants to furnish security in the sum of US $250,000 and 75,000, respectively to satisfy plaintiff's maritime lien; (iv) Arrest and detain the vessel and the specified cargo until the required security is furnished; (v) In case of sale of vessel, a sum of US $325,000 be kept as security for satisfaction of plaintiff's maritime lien which has priority over all other claims; (vi) Award costs, interest and any other relief or reliefs that this honourable Court may deem fit and proper in the circumstances of the case. The plaintiffs, owners of TUG APLLON under an agreement executed by the Master of m.v. RICE TRADERS, the defendant No.1, in Lloyds Open Standard Form (No Cure No Pay) rendered salvage service to m.v. RICE TRADER which ended on 15-2-1984 when the said vessel (defendant No.1) was delivered to her Master. In terms of clause (4) of the salvage agreement the plaintiffs notified the Committee of Lloyds, London their remuneration for services inclusive of cost, expenses and interest amounting to $250,000 for which amount the defendant No.1 was to give security within 14 days of the termination of salvage service. The defendant No.1 has failed to provide the same so far. The plaintiffs have claimed that the cargo owners of the cargo carried on board m.v. RICE TRADERS under bills of lading Nos.2,3,5 and 7 issued at Moputo are also liable to pay and to give security for their claim as they have maritime lien over the vessel and the cargo as well. Alongwith the suit the plaintiffs had filed an application C.M.A. No. 495/84 under section 41 of the Arbitration Act, 1940 praying for the arrest of m.v. RICE TRADERS. On 22nd May, 1984 the plaintiffs also filed another application C.M.A. No.570/84 under section 151 Code of Civil Procedure read with rule 750 of the Sind Chief Court Rules (O.S.) praying that Caveat may be entered against release of the property under bill of lading No.12 or in the alternative order the arrest of the said ship and cargo until security in the sum of Rs.25$ is provided by the owners. On 17-5-1984 notice of application for arrest was issued, but nobody appeared on 24-5-1984 and the ship was arrested. The office had raised at the earliest, the objection regarding maintainability of such action in the Admiralty Jurisdiction, but as none of the defendants have appeared and in view of the successive applications filed by the plaintiffs, and the orders passed thereon, it remained undecided. I have heard Mr. Sarwana on maintainability of the application under section 20 of Arbitration Act which has been registered as a suit. The learned counsel has contended that the claim of the plaintiffs attracts Admiralty Jurisdiction of this Court and therefore, the plaintiffs are entitled to file this application. Section 3 subsections (1) and (2) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 hereinafter referred as the Ordinance which confers and defines Jurisdiction and Admiralty causes is reproduced as follows:-

3. Admiralty Jurisdiction of the High Court. (1) The Sind High Court and the High Court of Baluchistan shall have and exercise, within their respective territorial jurisdiction, Admiralty juris diction as is in this Ordinance provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined. (2) The Admiralty Jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, question or claim (a) any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship; (b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship; (c) any claim in respect of mortgage of or charge on a ship or any share therein; (d) any claim for damage done by a ship; (e) any claim for damage received by a ship; (f) any claim for loss of life or personal injury sustained in conse quence 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 whose wrongful acts, neglects or defaults, the owners, charterers or persons in possession or 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; (g) any claim for loss of or damage to goods carried in a ship; (h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship; (i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a port, including any claim arising by virtue of the application by or under section 12 of the Civil Aviation Ordinance, 1960 (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo; (j) any claim in the nature of towage in respect of a ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port; (k) any claim in the nature of pilotage in respect of a ship or an aircraft; (1) any claim in respect of necessaries supplied to a ship; (m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues; (n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be recovered; (o) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship; (p) any claim arising out of an act which is or is claimed to be a general average act; (q) any claim arising out of bottomry or respondentia; (r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section. The learned counsel for the plaintiffs has referred to clauses (a) to (r) of section 3 subsection (2) and contended that except in clause (i) in all other clauses the words "any claim" has been used, therefore, the addition of the word 'action' in clause (i) contemplates any proceeding relating to salvage of life or ship and would cover the present proceeding. The learned counsel has referred to Bharat Bank Ltd. and another v. Ruby General Insurance Co. Ltd. A I R 1951 Punjab 97 in which the word 'action' used in an insurance policy has been held to cover an application under section 20 of the Arbitration Act. Reference was made to the Halsbury's Laws of England Vol. I Edition III Para. 1 where the word action has been defined as follows:- "An 'action,' according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be 'the legal demand of a right,' or 'the mode of pursuing a right to judgment'. (a) It implies the existence of parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a Court having power to enforce such a right. In its wider meaning the term includes both civil and criminal proceedings; it was frequently so used by old writers (b), and the House of Lords has recognized that it is a generic term, ), inclusive, in its proper legal sense, of suits by the Crown, and ) comprehending, in legal phraseology, every suit, whether by a subject, or in the name of the Sovereign, or by the Attorney-General on behalf of the Crown (c). It is, however, generally used in a more restricted or popular sense as denoting a civil action commenced by writ or plaint (d)." In my view the word action means any process by which juris diction of the Court is invoked and process of law is set in motion or interrupted. It has a wide meaning and used in a generic sense to include law suit, application, petition or resorting to any proceeding in a Court of Law for enforcement of any right or claim entertainable in law. Having understood the general meaning of the word 'action' it is to be considered in what sense it has been used in the Ordinance. Reference can be made to section 2(c) of the Ordinance where the word 'Causes' has been defined as follows:- "Cause includes any cause, suit, action, or other proceedings in the High Court in the exercise of its Admiralty Jurisdiction." In section 3(2) (a) to (r) of the Ordinance the causes, questions or claims which fall within the Admiralty Jurisdiction of the High Court have been specified., These clauses specifically define subject-matters in respect of which Admiralty Jurisdiction can be exercised. Section 4 of the Ordinance provides the mode of exercise of Admiralty Jurisdiction. It can be invoked by an action in personam or by an action in rent. `'Section 4(2). specifically provides that in cases mentioned in clause 0) Of subsection (2) of section 3 or cases where maritime lien or charge of any amount on any ship is claimed, the Admiralty Jurisdiction may be invoked by action in rem. Again section 5 of the Ordinance provides for entertaining of an action in personam. Section 6 of the Ordinance provides that no action shall be brought before the High Court to enforce a maritime lien unless proceedings therein are commenced within two years. From a review of the provisions of the Ordinance it is clear that proceedings in Admiralty Court can be initiated and the Admiralty Jurisdiction can be invoked by an action which may be in rem or in personam. Therefore, the word 'action' in clause (i) of subsection (2) of section 3 refers to suit, application, petition or any proceeding by which a party invokes the jurisdiction of the Admiralty Court or sets in motion the process of law or intervenes in the proceedings for obtaining relief or making any claim in respect of causes, questions and matters which fall within the Admiralty Jurisdiction of the Court as provided by the Ordinance. Under clause (1) the claim should relate to services rendered for salvage of life on ship, cargo on board the ship or the ship itself. It is not necessary that the salvor should render service on the high seas. If such service has been rendered on the high seas or in the D internal waters or territorial waters or in the port, the salvors will be entitled to maintain a claim under the Admiralty Jurisdiction. It is pertinent to keep clearly in mind that a maritime lien can be enforced or executed by Admiralty Court in an action in rem. Where such suits are instituted other lien claimants can intervene to establish their claim and even ask for determination of priorities. Under section 4(8) the Admiralty Court is competent to determine the questions relating to the title to the sale-proceeds and priorities amongst the claimants in appropriating the sale-proceeds. In pending proceedings any maritime claimant can intervene by filing an action. It is to be seen whether an application under section 20 of the Arbitration Act can be made before the Admiralty Jurisdiction of the High Court. Under the statute and practice governing the exercise of Admiralty Jurisdiction it can be invoked by, filing action in personam or action in rem. Such actions, are initiated by filing a suit in the Admiralty Jurisdiction of the.,High Court in respect of subject-matter, claims and causes which have been specified in section 3 sub section (2) of the Ordinance. These provisions do not contemplate initiation of an independent proceeding by filing an application under section 20 of Arbitration Act or for reference to arbitration any matter which may be covered by any of the clauses of sub section (2) of section

3. The proceeding for referring the matter to arbitration is completely different from admiralty action, where the Admiralty Court is called upon to adjudicate upon the claims, causes and questions specified in section 3 of the Ordinance. The only question involved in an application under section 20 is whether the Court should refer the matter to the Arbitrator in terms of the arbitration agreement. This question can hardly attract the Admiralty Jurisdiction specified in section 3 subsection (2) of the Ordinance. An application under section 20 of Arbitration Act can be filed before a Court as defined under section 2 sub-clause (c) of the Arbitra tion Act. The word 'Court' has been defined as "Civil Court having Jurisdiction to decide question forming the subject-matter of the reference, if the same had been the subject-matter of the suit". Before vesting jurisdiction in a civil Court it is necessary to ascertain whether a suit based on the subject-matter of reference can be entertained by the civil Court. Therefore it is the Civil Court of general jurisdiction which is competent to entertain application under section 20 of Arbitration Act. The Court exercising special jurisdiction cannot be termed as a 'Court' within the meaning of section 2(c) of the Arbitration Act competent to entertain application under section

20. In Mangi Lal Fateram Mahesari and another v. Devicharan Mengellal and another A I R 1949 Nag. 110, it was held that an Insolvency Court is a special Court, and not a civil Court within the meaning of section 2(c). In Sithal Das Khanna v. Srinath Das Khanna and another A I R 1949 All. 360 it was held that the term 'Court' as defined in section 2(c) of Arbitration Act does not include the Revenue Court. In this view of the matter the Court exercising the Admiralty Jurisdiction is not a Court within the meaning of section 2(c) of the Arbitration Act, and therefore, an application under section 20 of the Arbitration Act cannot be filed under the Admiralty Jurisdiction of the High Court. It can be argued that the subject or reference relates to a cause which is entertainable by the Admiralty Court. However, the fact remains that as the Admiralty Court is not a Court, as defined under section 2(a) of the Arbitration Act it has no jurisdiction to entertain such application. I would like to further consider whether in view of the Ordinance of 1980 such an application is entertainable, under the Admiralty Jurisdiction of the High Court. The juridiction of the Admiralty Court can -be exercised in respect of causes, claims and questions specified in section 3(2) of the Ordinance and such jurisdiction and relief provided under the Merchant Shipping Act or any other law. The Admiralty Court can exercise such jurisdiction which was vested in the High Court before the promulgation of the Ordinance (1980). If besides the jurisdiction conferred by the Ordinance any other claim, cause or action not provided in the Ordinance could be entertained by the High Court in exercise of the Admiralty Jurisdiction then the same can be entertained even now. The question which falls for consideration is whether before the promulgation of the Ordinance of 1980 the Admiralty Court had the jurisdiction to entertain and adjudicate application under section 20 of the Arbitration Act. To get a proper reply one has to assess the historical background of the establishment of the Admiralty Courts and jurisdictions conferred on them from time to time The history of establishment of Admiralty Court goes back to the year 1890 when Colonial Court of Admiralty Act, 1890 (53 and 54 VICT.C.27) was enforced and Colonial Courts of Admiralty were established in India. Such Colonial Courts of Admiralty were vested with jurisdiction over the like places, persons, matters and things as Admiralty Jurisdiction of the High Court in England had at that time. In pursuance of this Act the Colonial Courts of Admiralty (India) Act, 1891 (XVI of 1891) was promulgated and by section 2 following Courts in India were declared to be Colonial Courts of Admiralty:- (1) the High Court of Judicature at Fort William in Bengal; (2) the High Court of Judicature at Madras; (3) the High Court of Judicature at Bombay; (4) the Court of the Recorder of Rangoon; (5) the Court of the Resident at Aden; and (6) the District Court of Karachi. It seems that with the passage of time certain amendments were made and Courts at serial Nos.4 and 5 were deleted. In 1949 Admiralty Courts at serial Nos. 1, 2, 3, and 6 existed. By Governor-General Order 4 of 1949 Colonial Court of Admiralty (India) Act, 1891 was amended and word 'India' in the title and section 3 was substituted by Pakistan. In section 2(1) the words "Fort William in Bengal" was substituted by Dacca, and clauses (2) and (3) were omitted. Therefore, there remained two Courts of Admiralty in Pakistan viz. the High Court of Judicature at Dacca and the District Court of Karachi which under the provisions of Sind Courts Act, 1928 was the Chief Court of Sind. By the Colonial Courts of Admiralty (Pakistan) (Amendment) Act, 1953 the Colonial Courts of Admiralty (Pakistan), 1891 was amended and the word Colonial was deleted. For section 2 a new section was substituted declaring the following Courts to be the Courts of Admiralty:- (1) the High Court of East Bengal, (2) the High Court in Lahore, (3) the Chief Court in Sind, (4) the Judicial Commissioners Court in the North-West Frontier Province, (5) the Judicial Commissioner's Court of Baluchistan, (6) the High Court of Judicature for the State of Bhawalpur, and (7) the High Court of. Khairpur State. In 1955 by High Court of West Pakistan (Establishment) Order, 1955 High Court of West Pakistan was established and the aforestated Courts at serial Nos. 2 to 7 ceased to exist. The High Court of West Pakistan was vested with all the jurisdiction which the High Court of Judicature at Lahore exercised immediately before its establishment. The Karachi Bench however retained the Original Civil Jurisdiction as provided by section 8 of the Sind Courts Act, 1926. The High Court of West Pakistan therefore exercised the same Admiralty Jurisdiction which the Admiralty Courts were exercising from 1891. It may be mentioned here that by Ordinance No.XIII of 1969 the Colonial Courts of Admiralty Act, 1890 was repealed. On dissolution of West Pakistan by High Court (Establishment) Order, 1970 (P.O. 8 of 1970) apart from the Lahore High Court, the Peshawar High Court, for the Provinces of Sind and Baluchistan the High Court of Bind and Baluchistan was established with its principal seat at Karachi. All these Courts exercised the same jurisdiction, powers and authority including the Admiralty Jurisdiction as the High Court of West Pakistan exercised before 1-7-1970. From 1-12-1976 by Baluchistan and Sind (High Court.) Order, 1976 (P.0.6 of 1976) for the Province of Baluchistan, High Court of Baluchistan and for the Province of Sind, High Court of Sind were established. Those High Courts have the same power, authority, Jurisdiction as the High Court of Sind and Baluchistan exercised immediately before 1-12-1976. From this historical resume it is clearly established that the High Court of Sind has inherited the same Admiralty Jurisdiction which was exercised by its predecessor Courts. Finally, the Admiralty Jurisdiction of High Courts Ordinance, 1980 (Order No. XLII of 1980) was promulgated and the Sind High Court was vested with the Admiralty Jurisdiction as provided by the Ordinance. Therefore, presently the Admiralty Jurisdiction of this Court is to be governed by the provisions of-the Ordinance. Now reverting to the statutes governing the Admiralty Jurisdiction it is to be noted that upto the promulgation of the Ordinance of 1980 the Admiralty Courts in our country had the same jurisdiction which the High Court in England exercised in the year 1891, under the statutes or otherwise. In the year 1891 there were two statutes namely Admiralty Court Act, 1840 (3 and 4 VICT. C. 65) and Admiralty Court Act, 1861 (24 VICT-C.10). In the year 1925 the Admiralty Jurisdiction of the High Court in England was enlarged but it was not applicable to British India therefore that jurisdiction could not be exercised by the Admiralty Court in Pakistan. It is pertinent to point out here that these two Acts of 1840 and 1861 were repealed by the Ordinance of 1980. Section 23 of the Admiralty Court Act, 1861 reads as follows:- "All the powers possessed by any of the superior Courts of common law or any judge thereof, under the Common Law Procedure Act, 1854(d), and otherwise, with regard to references to arbitration, proceedings thereon, and the enforcing of awards of arbitrators, shall be possessed by the judge of the High Court of Admiralty in all causes and matters depending in the said Court, and the registrar of the said Court of Admiralty shall possess as to such matters the same powers as are possessed by the masters of the said superior Courts of common law in relation thereto." By this section in pending matters the Admiralty Court exercised jurisdiction to refer to arbitration, proceedings thereon and the enforcing of the awards of arbitrators as exercised by the Courts of Common Law or the Judge under the Common Law Procedure Act of 1854 (substi tuted by the Arbitration Act, 1889) or otherwise. It is pertinent to note that such jurisdiction could be exercised by Admiralty Court in pending proceedings. This clearly indicates that no proceeding or action for referring the matter to arbitration or enforcement of the award could be initiated or instituted independently. Such action could be taken only in cases which were pending before the Admiralty Court. This leads to the conclusion that if a suit has been filed in the Admiralty Court then on an application by any party it can stay the proceedings, refer the matter to arbitration, and even enforce the award provided the law permits enforcement of such an award. In England Admiralty Courts have been exercising the jurisdiction to stay the matters pending before them and refer the matter to arbitration in terms of agreement between the parties or refuse such stay but I have not come across any judgment, or any proceedings, nor Mr. Sarwana has been able to cite any, where a proceeding has been instituted independent of any action in rem or action in personam before the Admiralty Court to refer the matter to arbitration. The nature of application, and the relief sought by the plaintiffs merely contemplates a temporary action for the purpose of withholding the security for utilization in execution of any arbitration award that may be made by the Lloyd Committee. Whether proceedings for such a relief can be instituted under the Admiralty Jurisdiction? In view of the observation made above my answer will be in the negative. It can be seen that in action in rem after arrest of vessel the proceeding has been stayed and the matter has been referred to arbitration, a strong view prevails in England that after the stay has been granted, the ship should be released, security should be discharged and it cannot be kept for the enforcement of the award that may be made by the arbitrator. In the GAP BON (1967) I Lioyds Rep 543 the Charterer began an action in rem against the owners of a French ship in respect of a claim arising out of a Charter-party which contained a London Arbitration clause. The ship was arrested but the owners obtained its release from arrest on furnishing bail bond "purported to secure payment not only of any judgment in the action but also of any award in the arbitration proceeding. The Charterer who had obtained writ of arrest did not serve a Statement of claim in the action, and the owner applied that unless statement of claim is filed within a date specified by the order the action should be dismissed. This prayer was refused and it was ordered that the summons shall stand adjourned till the arbitration proceedings were continued with due diligence. In appeal this order was set aside and the Charterer was ordered to serve the statement of claim within 21 days failing which the action should stand dismissed and the bail bond in the action should be cancelled. It was observed as follows:- "The plaintiffs' case on the appeal, as I understood it, was this. They wish to have what I hope I have not unfairly described as the best of, both worlds; they desire to keep the action alive while not proceeding with it for the sole purpose of keeping the security which they have obtained, but they wish to have their claim determined by arbitration in accordance with the arbitration use, in the charter-party. For those reasons they seek to support the order made by the District Registrar which keeps the action alive while relieving them their duty to prosecute In my view the plaintiffs' approach to this matter is based on a Misconception. In my view, when An action in, rem is brought the Security thereby obtained is security in respect of any judgement which may be given by the Court after hearing and determining the claim. The security so obtained also covers the payment of any sum which may become due under an agreement whereby the action is .settled. But the security so obtained is not in view available for the purpose of ensuring payment of the judgment of some other Court or for the purpose of ensuring payment of the award of an arbitration tribunal. It seems to me that this is' IV necessary inference from the terms of the Administration of Justice Act, 1956, which gives the Court power to entertain proceedings in rem. It is to be inferred from that the object of the process in rem is to provide security for a plaintiff in respect of any judgment which he may obtain as a result of the hearing and determination of a claim. That is the purpose of the proceeding in rem and, subject to the point I made, that it covers also payment of a sum due under a settlement in an action, it is the sole purpose of such process. It seems to me that in the present case the plaintiffs have sought to invoke the Admiralty Jurisdiction of the Court in rem for a wholly different purpose, or at any rate seek now to maintain that process for a wholly different purpose. That different purpose is not security for the payment of a judgment of the Court or security for the payment of a sum due under the settlement of an action in the Court, but security for the payment of an award in an arbitration conducted pursuant to clause (33) of the charter-party. In my view the Admiralty Court has no jurisdiction to arrest ship or to keep ships under arrest for that purpose; it only has jurisdiction to arrest ships and keep ships under arrest for the purpose of providing security for a judgment of the Court. Bail in an Admiralty action in rem represents the res, and it follows, in my view, that the Admiralty Court has no jurisdiction to require bail as a condition of release, or to maintain that bail, for the collateral purpose to which I have referred." In the ELEFTHERIA 1969 2 AER 841 the English Cargo Owners began an action in rem against the owners of Greek ship for damages to goods carried under a bill of lading which provided that all disputes shall be decided in Greece and according to Greek Law. The owners obtained release of the ship and applied for stay offering to accept as a condition of stay that the security already given or other equivalent security should be available to satisfy any judgment of a Greek Court. This offer was accepted and action was stayed. In the ATLANTIC STAR 1973 2 AER 175 a Dutch ship collided in fog with two moored barges in the port of Antwerp. The Belgian barge owner brought an action against Dutch owners in Belgian Court. The Dutch barge owner began an action in rem against Dutch ship owners in the Admiralty Court in England. Dutch ship owners provided security to avoid arrest and applied for stay of the English action which was termed as oppresive and vexatious. They offered equivalent security to satisfy the judgment of Belgiam Court. The stay was refused and in appeal this order was confirmed. In a further appeal the House of Lords granted the stay mainly on the consideration that the defendants were willing to provide alternate security. In the GOLDEN TRADER the law as laid down by various judgments has been summed up as follows:- "I think that the effect of these authorities can be summarised in this way. The first three oases, The Anthenee (1922) II Lloyd LR 6 Forests Romana SA v. Georges Mabro (Owners) (1940) 86 Lloyd LR 139 and The Fehmarn (1958) 1 All ER 333, (1958) I WLR 159, while not deciding that the retention method is not available in English Law, nevertheless suggest strongly that it is not. The fourth case, The Cap Bon (1987) I Lloyd's Rep 543 decides expressly that this method is not available. The last two cases, the Eleftheria (1989) 2 All ER 641, (1970) P. 94 and The Atlantic Star (1973) 2 All ER 19, (1973) 2 WLR 795; show that, where a stay is discretionary, as it is in all oases under consideration except protocol arbitration oases, the alternative security is method may, if the Court thinks fit, properly be used." In the GOLDEN TRADER (1974) 2 AER 888 it was observed:- "The starting point, if The Cap Bon (1987) I Lloyd's Rep 543-is right, is that the Court can only retain the security to satisfy a judgment or a compromise in the action itself. It follows that, if the Court stays the action, so that there will, In all probability at least, be no judgment or compromise in the action to be satisfied, it must then release the security. Putting it shortly, if there is a stay, there must, as a necessary consequence, be a release. In cases where the grant of a stay is discretionary, the Court can refuse a stay unless alternative scurity is provided." The principle relevant for the present suit which emerges from these authorities is that no proceeding can be filed merely for arrest of the vessel without filing any suit or action for enforcement or adjudi cation of any of the claims, causes and question specified in section 3(2) of the Ordinance. The proceedings in Admiralty Court are initiated by filing an action in rem i.e. suit in rem or action in personam. Where a ship is arrested in such action and security is furnished for release of the ship or security is furnished to prevent the arrest, it cannot be retained for satisfaction of the award. However, if the Court imposes a condition that stay shall be granted on furnishing equivalent security for satisfaction of the award or the owner offers such a security then while granting stay of action the Court may retain the security so furnished till the award is enforced. This is possible only where a suit has been filed before the Admiralty Court. Mr. Sarwana contended that if application for stay of the suit can be entertained and decided by the Admiralty Court, the application under section 20 of the Arbitration Act can also be entertained. The analogy drawn by the learned counsel overlooks the material difference that application under section 34 is filed in a pending suit and is not filed independent of the suit; whereas application under section 20 is an independent action initiated by such application. Therefore, the Admiralty Court will not entertain such action which is not specified in section 3(2) of the Ordinance. It was also contended that proceeding under section 20 is a suit and, therefore, if the agreement relates to maritime lien such suit can be filed in the Admiralty Court. Suffice to say that application under section 20 is registered as a suit and mere registration does not convert it into a suit. There is marked difference in proceeding in suit and in application under section 20 of the Arbitration Act. A suit is instituted by presenting a plaint and not an application. Proper court-fee is paid on the plaint but court-fee payable on application is paid on the applica tion under Section

20. Furthermore section 69(1) of the Partnership Act applies to suit but does not apply to application filed under section

20. In proceeding under section .20 the Court has to decide whether the agreement should be ordered to be filed and the parties be directed to refer the dispute to arbitration as provided by the agreement. The subject-matter of the agreement and the claims arising from it are neither considered nor investigated for seeking such relief. In application under section 20 none of the claims, causes, and actions attracting the Jurisdiction of the Admiralty Court are involved. In such circumstances how can application under section 20 be filed under the Admiralty Jurisdiction of this Court. The plaintiff while filing the application under section 20 had filed an application under section 41 of the Arbitration Act read with section 151, C.P.C. Such an application for arrest of the vessel is not maintainable. Firstly, an application for arrest of the ship can be filed in an Admiralty Suit, Secondly, section 4 of the Ordinance prescribes mode of exercise of Admiralty Jurisdiction which may be invoked by an action in rem or action in'personam and in such proceedings the writ of arrest of ship or property can be issued. Action is rem is a peculiar proceeding instituted against a res, and is unknown to the Ordinary Civil Jurisdiction of the Court. The order for arrest of the ship was passed in these proceedings perhaps under misconception as the defendants had failed to appear and it was linked with other Admiralty suits relating to the same ship filed by other claimants. It is an admitted position that in terms of salvage agreement the plaintiff had served a notice on the committee of Lloyds. Mr.Sarwana has stated that the respondent No.1 has not furnished security and the arbitrator is proceeding with the arbitration. In such circumstances when the arbitrator has commenced proceeding the prayer for direction to the defendants to file the arbitration agreement has become infructuous and is misconcieved even in jurisdiction where such application is maintainable. Even otherwise the reliefs at serial Nos.(iii), (iv) and (v) reproduced earlier cannot be granted under section

20. As the application under section 20 of the Arbitration Act filed by the plaintiffs is not maintainable under the Admiralty Jurisdiction, two weeks time is allowed to the plaintiffs to take such necessary steps as they may deem fit, after which the matter will be placed for further orders on 2-1-1985. M.Y.H. Prayer misconceived.