P L D 1986 Quetta 54 (PLP)

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85. Section 3(4) and maritime liens .‑In section 3(4) it is expressly provided that the subsection is applicable ; whether the claim gives rise to a maritime lien on the ship or not ? Notwithstanding this reference section 3(3) continues to be the principal jurisdictional provision with regard to maritime liens. The significance of the reference to maritime liens in section 3(4) is to make it clear that an alternative action in rent against a 'sister ship' is equally applicable to claims in the nature of maritime liens. Where an incumbranced ship is, therefore, not readily available a maritime lienee may alternatively proceed in rent against another ship in the same beneficial ownership Section 3(4) does not work any change in the nature of a maritime lien nor does it extend the concept of a maritime lien. The alternative right in rent is in the nature of a statutory right of action in rent and the availability of 06 right is dependent on the provisions of section 3(4) being satisfied." Reference may also be made to relevant observation from para. 14 of the above book, which reads as follows :‑ "The question of the personal liability of a res owner assumes a significance only in relation to the accrual of a maritime lien. I It has no further application and, in particular, does not operate to restrict the right of a maritime lienee to arrest a res in the hands of a purchaser. In such a case there clearly exists no personal liability on the part of the subsequent purchaser but this fact does not dissolve the right of a maritime lienee."

18. I am, therefore, inclined to hold that subsection (4) of section of the Ordinance is not applicable to the instant case and the above suits are competent even against the defendant No. 4, the purchaser of the vessel as the maritime lien was attached to the vessel and certain portion whereof, admittedly, was in existence at the time when the above suits were filed. It was also contended by Mr. Abdul Rauf, learned counsel for the defendants that maritime lien can be claimed in respect of wages earned on board the vessel and not in respect of wages which might have been earned while not on board. He has referred to para. 308 of the above British Shipping Laws 1980 Edition, Volume 14, which reads as follows :‑ '`

308. Wages to be earned on Board tire ship.‑‑A significant feature of the legislation prior to the Administration of Justice Act, 1956 was the consistent requirement that the wages be `earned on board the ship' The original jurisdiction as it existed prior to 1861 was probably also so restricted. Although the phrase had the inherent capacity, if viewed narrowly and precisely, to restrict severely the jurisdiction of the Court it was never allowed to achieve such an undesirable result. Both under the original and statutory jurisdic tion the phrase was Construed broadly and liberally so as to include not only services rendered actually on board the vessel but any other services which appertained to the duties and responsibilities of a mariner, even though those services were performed away from the ship. In The Arosa Star, it was held by the Bermuda Supreme Court that notwithstanding the terms of section 10 of the Admiralty Court Act, 1861 claims for wages earned during periods of vacation and sick leave, and when necessarily the claimants were away from the ship, were within the jurisdiction of the Court. The phrase `earned on board the ship' is omitted from the current statutory jurisdiction of the Court. Given the. breadth of the former construction it is doubtful if this represents any subtantial extension of the Court's jurisdiction."

19. The above‑quoted passage clearly indicates that the British Administration of Justice Act, 1956 which has been re‑enacted by the Ordinance, has done away with the requirement that the maritime lien can only be claimed in respect of wages earned on board the vessel. The above contention is, therefore devoid of any force.

20. My answer to issue No. 1 is in the negative, whereas, to issue No. 2 is in the affirmative.

21. Issue No. 3.‑Before taking up the merits of the above issue, it may be observed that the defendants in their written statements have averred that they have given adjustment to tile plaintiff's wages in the suit, namely, Suit No. 498 of 1984 filed by the defendant No. 2 in the High Court of Sind against the plaintiff's for the recovery of damages arising out of breach of duties on the part of the plaintiffs. This point was :got urged by Mr. Abdul Rauf, learned counsel for the defendants) during the arguments. However. it will suffice to observe that in the absence of any judgment of a competent Court of law as to the right off defendant No. 2 to claim any damages from the plaintiff's, the plaintiff's suits cannot be defeated.

22. There are certain common points in all the three suits which may be taken up first :‑ (i) All the plaintiff's have claimed shorthand wages on the ground that one of the Officers w,. short on board for certain period during which they had performed the short officer's duties, and hence, they are entitled to share the wages with the Master of the vessel which would have been paid to the short officer. The reliance has been placed by the learned counsel for the plaintiffs on Exh. P; 12 to Suit File No. 3 of 1984, which has been signed by the four officers on board the vessel and received by the Master of the vessel. The above document reads as follows "The Master, 5th July, 1984 m. v. Asbar. at Sea. Dear Sir, Subject : Second Engineer's Shorthand Wages On repeated verbal requests to you for our shorthand wages there has been an absolute silence from you and the owner, and you have also made no effort from your side to ensure that we get our right, neither have you put it in the postage bill nor confirmed it by giving us in writing that we have been working shorthand since this date. Mr. Mashkoor Hussain 2/Engineer left this vessel at Singapore on the 22nd of March, 11984 and since then we the undersigned have been looking after his job successfully, without any compensation, and the company has placed no replacement for him ever since he left, though now it is almost 4 months. We would request you to please put in our accounts his basic salary (i.e.) 1,280 US dollars for this period dividing equally or by whatever proportion the shipping office rules say. We the undersigned feel that it is now very long and time to ask ourselves, as we will be leaving the vessel at Karachi, where the vessel proceeds now. We are sure that the statement above is true to the best of our know ledge, if otherwise please put it in the remarks with detail. ‑ Yours sincerely, A. A. ‑Ansari Chief Engineer, Received and will make Muhammad Asghar 3rd Engineer. company pay their due Shahid. ll. Khan 4th Engineer. shorthand wages. Have Oves Ahmed 4th Engineer. already informed com pany. (Sd ) Master 5‑7‑1984" In support of the above claim, the plaintiffs have not examined the Master of the vessel, nor the learned counsel for the plaintiffs was able to cite any terms of the contract on record or any provision of law upon which the above claim is founded, nor practice has been pleaded and proved.

23. In my view, a plaintiff in his claim can. only succeed, if it is founded on a term of the contract or on a provision of law or on a proved custom. Since the learned counsel for plaintiffs could not support his claim on either of the above three basis, I cannot decree their claim in this regard. It may be stated that the above item was not reflected in the salary hilt prepared by the Master of the vessel which have been filed by the plaintiffs in the above suits. (ii) The plaintiffs in the above suits have converted U. S. dollar into Pakistani rupee at the rate of Rs. 14.28. The question, therefore, which requires consideration is, as to whether the plaintiffs are untitled to convert the U.S. Dollar into Pakistani rupee at the above rate or at some other rate of exchange Mr. Shaiq Usmani, learned counsel for the plaintiffs has referred to para. 263 from the Halsbury's Laws of England, Third edition. Volume 35, page 170, in which, it has been stated that payment of wages in other than the prevailing currency stated in any agreement with a seaman must be at the rate of exchange prevailing at the time and the place of payment. On the other hand, Mr. Abdul Rauf, learned counsel for the defen dants has referred to Exh. D/2 in suit File No, 3 of 1984 which is a letter, dated 29th June. 1983 addressed to the Master of the vessel by the defendant No. 2, which reads as follows :‑ "The Master m. v. Ashar At Karachi Road. Date : 29‑6‑1983. Dear Sir, It has been noted that all the advances in foreign ports are calculated at the rate of Pakistani Rs. 12.5329 equivalent to one U. S. dollar. The above rate is a buying rate of Pakistani rupees from U. S. dolar this rate applies only to those whose wages are in U. S. D. Crew members whose wages are in, Pakistani rupee whenever they are given foreign exchange in foreign port, the selling rate of U. S. dolars should apply to them, which. is always higher than the buying rate. For your guidance we are giving you the following exchange rates which you should use in converting the currencies. Selling rate of the U. S. dollar Buying rate of U. S. dollars Pak. Rs. 12.87 Pak Rs. 12..5329 Due to the floating currency exchange rates, of U. S. dollar we will intimate you the future changes accordingly. Thanking you. Universal Maritime Corporation S. A. (Sd.) Syed Shakil‑ur‑Rehman.. Copy to :‑The Accounts Department. Mr. Muhammad Iqbal." The plaintiffs have not produced any evidence before me either t prove the above rate of Rs. 14.28 pre U. S. dollar, or any other rate of foreign exchange prevalent on the relevant dates. In the abs; nee of any such evidence on record, the rate of exchange given in the above‑quoted letter, which was acted upon, 1,v the parties during the currency of the employment agreement, will held the ground. I am, therefore, of the view that the plaintiffs are entitled to convert U. S. dollar into Pak rupee for the purpose of the above suits at the rate of Rs. 12.5329 per U, S. dollar 25 Though reference to the leave wages has been made in the plaints of all the above three suits. but Mr. Shaiq Usmani, learner( counsel for the plaintiffs has submitted that he would press this claim only in Suit No. 2 of 1984. I will, therefore, take up this claim while dealing with the above issue No. 3 in relation to the above suit.

26. My findings as to the entitlement of each of the plaintiffs to the terms of a decree, are as follows :‑

27. Suit No. 2 of 1984 Before taking up the question of wages, it may be pertinent to take up the question of leave wages. In the present case, the plaintiff was employed on 29th September, 1983. He completed his probationary period on 28th March, 1984. There seems to be no specific clause in the above contract document on the point of leave wages. but reference has been made in sub‑para. (5) of para. 3 of the contract document. Reliance has been placed by the learned counsel for the plaintiffs on Exh. D/1 in Suit‑File No. 3 of 1984 which reads as follows :‑‑ "12th November, 1983. The Shipping Master, Government Shipping Office. Karachi. Re : m. v. Ashar at Chittagong. Dear Sir, Kindly arrange the sign on the following officers on the article of m. v. Ashar at Chittagong. Name Rank. C. D. C. No. Salary (1) Mr. Aleem Ahmed Ansari. Add. Ch. Eng. K/O/2935 US $ 1,280 (2) Mr Muhammad Anwar R/Officer. K/O/2325 US $ 600 Excluding leave wages 20 % which will be only paid on completion of one year, service contract with our principals Messrs Universal Maritime Corporation S. A. Panama. Assuring you of our closest cooperation at all times, we remain. Sincerely yours, Consolidated Shipping Limited. (Sd.) As Agents only to, Lubna Lines Limited." It has been contended that under sub‑para. (2), ‑it has been provided that on completion of one year service contract, the employee would b‑. entitled to 20% of the wages as leave wages In this case, the plaintiff has claimed U. S. dollars 2,049.31 as leave wages. It is an admitted position that before the completion of one year period, the plaintiff was discharged from the service i. e. he was employed as stated hereinabove on 29th September, and was discharged from the duties on board the vessel upon arrival of the vessel at Karachi on 25th July, 1984. It has been urged by‑ Mr. Shaiq Usmani, learned counsel for the plaintiffs that since the plaintiff was not signed off by the defendant No. f, it would be' deemed that the plaintiff remained in service. I am unable to accept they above contention. There is no evidence on record to prove that without signing off the Articles of Agreement, the plaintiff could not have taken another job.

28. As regards the wages, the plaintiff has claimed wages upto 24th September. 1984 amounting to. U._ S. 8 4,

992. In may view, at the most the plaintiff can claim fifteen days salary in lieu of the notice of fifteen days, whereby, his services could have been ‑terminated by the defendant No.

2. The above fifteen days notice period was to expire on or about 9th August, 1984 after the arrival of the vessel and hence on year of service was factually not completed by the plaintiff as to entitle him to claim leave wages on the basis of the above‑quoted letter.

29. As stated hereinabove, the plaintiff was entitled to salary o fifteen days in lieu of the notice and hence is entitled to salary upto 9th August, 1984. In this regard, reference may be made to Exh. P. 2 of the above suit file which indicates that upto 30th June, 1984 the balance payable to the plaintiff was U. S. $ 2,387.02. In addition to this, the plaintiff is entitled to the salary for the period from 1st July, 1984 to 9th August, 1984 at the rate of U. S. $ 760 per month, which comes to U. S. $ 980.64. The total of the above two sum comes to U. S. $ 3,367.66. The above total amount of U. S. S 3,367.66 is to be converted into Pakistan rupees at the rate of Rs. 12.5329 per U. S. dollar, which comes to Rs. 42,206.546.

30. Mr. Shaiq Usmani, learned counsel for the plaintiffs has conceded that the defendant No. 2 is entitled to a deduction of U. S. 3 6.97 which comes to Rs. 87.354 at the above rate of exchange. I would there fore. deduct the above amount from the above total sum of Rs. 42,206.546.

31. I accordingly decree the suit to the extent of Rs. 42,119.192 as prayed for with proportionate cost and interest at the rate of 9 7. from the date of filing of the above suit till the date of payment of the amount.

32. Before parting with the above discussion, it may be observe that Mr. Abdul Rauf, learned counsel for the defendants has contended that the plaintiff' as Second Officer and had officiated as First Officer only during the period from 3rd March, 1984 to 29th May, 1984 and, therefore, he was entitled to salary at the rate of U. S. dollar 760 during the above period' only and not for any subsequent period. There is no such express plea in the written statement. Furthermore, wage account prepared by the Master of the Vessel Ellis. P/2, 3, 4, and 5, have been prepared at the rate of U. S. S 760 per month which were not challenged by the defendants at any time prior to the above suit. The above wage accounts are prepared by the ‑Master of the Vessel in terms of section 44 of the Merchant Stripping Act, 1923 and, therefore, are binding on the defendants particularly, in the absence of any express plea or evidence on record.

33. Suit No. 3 of 1984. In this suit, the plaintiff' has claimed wages upto 29th September. 1984 amounting to U. S. $ 7,814.58. The plaintiff (while narrating the facts of the above suit), a, stated hereinabove, had resigned on 15th May, 1934 by tendering two months notice which was to expire on 14th July, 1984, but since the plaintiff was on board the vessel, which arrived at Karachi port on 25th July. 1984, he was discharged from the duties on the above date His services stood terminated on 25th July, 1984. As stated in connection with the above Suit No. 2 of 1984 that the plaintiff had failed to produce any evidence to prove that he could not take another Job on account of the fact that his service contract was not signed off by the defendants, in my view, he is entitled to salary upto 25th July, 1984. Exh. P/11, the final wage account ‑prepared by the Master of the Vessel upto the period expiring on 25th July, 1984 indicates that the plaintiff was entitled to U. S. $ 3,014.59. In addition to that U. S; $ 1,000 remitted by the defendant No. 2 through a cheque during the currency of the employment agreement. was dishonoured which is reflected in Exb. P/15. The plaintiff is, therefore, entitled to the above sum of U. S. dollars 1 ,000, thus making a total of U. S.. dollars 4,014.59. Converted at the rate of Rs. 12.5329 per U. S. dollars, this comes to Rs. 50,314.455.

34. I, therefore, decree the above suit in the sum of Rs. 50,314.455 as prayed for with proportionate cost and interest at the rate of 9% from the date of filing of the above suit till the payment of the amount.

35. Suit No. 4 of 1984.‑‑The plaintiff was appointed as Chief Officer on 23rd May, 1984. He joined the vessel at Mogadiscio on 28th May, 1964. He resigned on 12th July, 1984 by tendering one month notice as he was by then not confirmed. He was discharged from duties upon the arrival of the vessel at Karachi on 25th July, 1984. He has claimed salary up to 24th September, 1984 for the period commencing from 23rd May, 1984. It has been contended by Mr. Abdul Rauf, learned counsel for the defendants that the plaintiff is entitled to the salary from the date of joining of the vessel, namely, from 28th May, 1984 and not from 23rd May, 1984 in view of the terms of the appointment reflected in Exh. D/1 which is a letter, addressed by the defendant No. 2 to the Master of the Vessel for the appointment of the above plaintiff', which indicates that he was entitled to the salary from the date of joining of the Vessel. On the other hand, Mr. Shaiq Usmani, learned counsel for the plaintiff has referred to section 55 of the Merchant Shipping Act, 1923 which provides that a seaman's right to wages and provisions shall be taken to begin either at the time at which he commences work or at the time specified in the agreement of his commencement of work or presence on board whichever first happens. In the instant case, the tune specified in the employment letter is the date of joining the vessel and factually, the plaintiff joined the vessel on 28th May, 1984 and, therefore, even by virtue of above section 55 the plaintiff can claim wages from the date of joining the vessel. Exh. P/3 indicates that factually, the wage account prepared by the Master of the Vessel and accepted by the plaintiff by signing it, was prepared from the date of 28th May, 1984. In view of the above documentary evidence, the plaintiff has no basis for claiming from a date earlier than 28th May, 1984. The question which remains for consideration is as to the date upto which. the plaintiff is entitled to the wages. As stated, hereinabove:, the plaintiff had resigned on 12th July, 1984 by the tendering one month notice. He was discharged from the duties upon the arrival of the vessel on 25th July, 1984. In my view, a the most, the plaintiff can claim wages upto the date of expiry of notice which was 11th August, 1984. It may be stated that Exh. P/4 is the wage account prepared by the Master of the Vessel unto the period expiring on 30th June. 1984 indicating that a balance of U. S. $ 550.79 was payable. In addition to that, the plaintiff is entitled to the period from 1st July, 1984 upto 11th August, 1984 at the rate of 1,040 U. S. dollars per month. which comes to U. S. $ 1,409.03. The total of the above items comes to U. S. $ 1,959.82 converted into Pakistani rupees at the above exchange rate of Rs. 12.5329 per U. S. dollar, which comes to Rs. 24, 562.228.

36. I would accordingly decree the suit as prayed for in tile sum of Rs. 24,562.228 with proportionate cost and interest at the rate of 9% from the date of filing of the suit till the payment of the amount.

37. Before parting with the above discussion, it may be observed that the defendants Nos. 2 and 3 in their written statements Have deducted a number of items from the wages, on which, no evidence was led. Even at the bar, they were not urged except item of fare in Suit No. 4 of 1984, but this was not pressed. Even otherwibe, in the absence of any evidence contrary to the wage account prepared under section 44 of the Merchant S Shipping Act, 1923 by the Master of the Vessel, no deduction could have been made in presence of express prohibition provided under section 4 of the aforesaid Act, which provides that deduction from the wages of seaman shall not be allowed unless it is included in the account delivered in pursuance of this Act except in respect of a matter happening after the delivery. A. A. Suits decreed.