1999 PLP 996 (CLC)

(1) Whether the plaintiff has served the defendant vessel till 7th March, 1997, when the plaintiff signed off the Articles before the shipping master or he left the ship on 6th October, 1995? (2) Whether the plaintiff is entitled for the wages till 7th March, 1997 when he signed off the Articles or till 6th October, 1995 when he left the ship? (3) Whether the plaintiff left the ship on 6th October, 1995 of his own accord and did not perform any duty thereafter? The plaintiff examined himself and the defendant examined an Attorney for the defendant. My findings on the above issues are as under Issues Nos. 1. 2‑and

3. It is an admitted position that the plaintiff has received his wages up to 6‑10‑1995, which according to the defendant No.6 is a date on which the plaintiff left the vessel. However, the plaintiff had initially claimed wages till 11‑6‑1996 because that is the date when the other Pakistani crew members had signed off from the vessel. Nevertheless, the plaintiff had always claimed his wages right to the day that he signed off from the Articles of Agreement, which according to him is 7‑3‑1997. In so far as the defendant No.6 is concerned, who are the only contesting defendant, they are on record as having admitted their liability for the wages of the plaintiff up to 13‑3‑1996, which is the date of the order in Admiralty Suit No.123 of 1996 on which the vessel was directed to be sold by the Court. The plaintiff has in his evidence emphasised the fact that he was on board the vessel till 11‑6‑1996 but he signed off the Articles on 7‑3‑1997. In so far as the defendant No.6 is concerned through their witness they have tried to show that in fact the plaintiff was a deserter and he was never on board the vessel after the date of 6‑10‑1995. The evidence on behalf of the defendant No.6 was led by an Attorney who had no personal knowledge of the happenings on board the vessel and hence his evidence cannot be given any credence whatsoever. The fact that the defendant No.6 has already admitted their liability for the wages of the plaintiff up to 13‑3‑1996, the date of the Court order for selling of the vessel, would indicate that their assertion with regard to date of 6‑10‑1995 is of no consequence. The question that is now posed is; what is the date till when the plaintiff is entitled to claim his wages? This question' is not free of ambiguity and there is no set method laid down in this regard for calculation of wages of a Pakistani seaman who serves on board foreign owned vessels. Under section 30(1), Merchant Shipping Act, 1923 a seaman who is engaged to serve on a vessel that is registered in a foreign country has to sign the Articles of Agreement at the shipping office. Consequently, it would appear that a seaman's wages would commence from the date of signing on the Articles of Agreement but this is so because, as a rule the moment a seaman signs on the Articles of Agreement, he is usually flown abroad to join the foreign owned vessel. The difficulty arises when the seaman is repatriated from abroad either upon expiry of his contract or for some other reason. The question then is as to when his time of service on board the vessel ends. Does the period of service end when he physically leaves the vessel or does it end when he arrives at the place of his engagement i.e. Karachi or does it end when he actually appears before the Shipping Master to sign off from the Articles of Agreement? Here it is necessary to mention that a seaman is unable to seek employment on board any vessel unless he signs off from the Articles of Agreement kept at the shipping office. It would be simple to conclude that a seaman's time of service would end when he signs off the Articles of Agreement at the Shipping Office but then if this were so a seaman could manipulate not to sign off the Articles of Agreement under one pretext or the other and thus, continue to be regarded in service and hence entitled to claim wages much beyond the period that was originally intended. Consequently, it is necessary that there must be some nexus between the date on which a seaman's actual period of service on board the vessel ends and his final discharge from service at the port of engagement upon signing off from Article of Agreement. Usually the local agents try to sign off a seaman within a few days of his discharge from vessel but in cases where a seaman is repatriated from abroad or where the vessel, though at Karachi, is abandoned or stranded then a seaman finds it convenient to continue to avoid signing off from the Articles of Agreement so he can claim wages for the additional period. Here, there is yet another aspect which needs to be considered, that is some times in ease of a foreign owned vessel a seaman deliberately and justifiably does not sin off from the Articles if his wages have not been paid in full. I feel it is necessary to mention that this provision regarding signing on and signing off from Articles of Agreement at the shipping office was introduced to the Merchant Navy because of the unfair and exploitative practices that prevailed in the engagement of seaman in the early 20th Century in England. It is obvious that much water has flown under the bridge since then and the seaman, today are considerably more protected than they were ever before. In fact there is now an international body called International Trade Federation (I.T.F.), which goes to any length to protect the interests of the seaman. Indeed it is now the ship owner who often needs protection from somewhat overzealous I.T.F. Thus, to avoid any confusion about the period for which a seaman is entitled to wages it is necessary to determine as to what will be the date when the seaman would no longer be entitled to wages in respect of his service on board a vessel. It is obvious that there has to be a nexus between the service on board a vessel and the wages that accrue therefrom. At the same time due consideration has to be given to the fact that a seaman may not necessarily be able to sign off from the Articles of Agreement immediately upon his being discharged from the vessel concerned. I, therefore, feel that a reasonable period should be fixed for the purpose of signing off from the Articles of Agreement after a seaman leaves a vessel. To determine as to what will be such reasonable period one has to consider what does signing off entail. All that is required for signing off is that local agent of vessel takes an appointment with the Shipping Master, pays all the dues of the seaman and then arranges his presence before the Shipping Master to formally sign off from the Articles. All this could take three to seven days depending upon whether the seaman has been repatriated from abroad or is being discharged from a vessel at Karachi. Consequently, I hold that for a seaman serving in a vessel owned by a foreign national i.e. a foreign flag vessel, the reasonable period for signing off from the Articles of Agreement at the shipping office will be a maximum of one week from the time of his arrival from abroad at the port of engagement. This would mean that even if a seaman does not physically sign off from the Articles of Agreement he will only be entitled to wages up to one week after arrival from abroad after being discharged from the vessel in which he was serving. On the contrary when a seaman is discharged from a vessel in Pakistan then such period will be reduced to a maximum of three days. These periods fixed apply only when the seaman is not signed off due to any reason whatsoever. There is nothing to prevent a ship owner from arranging the signing off earlier than the period laid down above. These periods will also apply even if the seaman's wages have not been paid in full. In such an event the seaman can reserve his right to claim wages by signing Form 17 and pursue other remedies for recovery of his balance wages. In the instant ease, there is some doubt as to when the plaintiff left the vessel or in other words when did he cease being on board the vessel as a member of the crew. There is nothing to show on record that the plaintiff left the vessel on 6‑10‑1995 nor has any evidence been led to this effect but the fact remains that the vessel was directed to be sold pursuant to the Court Order. dated 13‑3‑1996 in Admiralty Suit No.123 of 1996. However, the vessel was actually sold vide Court order, dated 9‑5‑1996 in Admiralty Suit No. 123 of 1996 by the Official Assignee of the Court. It would, thus, mean that on 9‑5‑1996 the vessel changed hands and the purchaser of the vessel become its new owner. It was then up to the new owner whether to retain the crew .previously serving on board or not to retain them. No evidence has been brought by the plaintiff on record to show that any new agreement was entered into between the plaintiff and the new owner. Consequently, for all practical purposes the plaintiff ceased to be a member of the crew of defendant No. l vessel on 9‑5‑1996 and according to the principle laid own above by me he should have been signed off the Articles of Agreement at the shipping office latest on 12‑5‑1996 i.e. after three days, considering that he had been discharged from the vessel at Karachi. A perusal of the Articles of Agreement which was filed in Court by the Shipping Master at Court's direction would show that the plaintiff was signed off from the Articles of Agreement on 11‑6‑1996 but their is considerable overwriting where the date 11‑6‑1996 is written. It is significant that under the signatures of the Shipping Master against this entry appears the, date 7‑3‑1997, presumably the date of signing by the shipping master. It would, therefore, appear that the initial date which has been overwritten was in all probability was 7‑3‑1997 and that the Shipping Master changed the date to bring it in conformity with the signing off date of the other two crew members of the same vessel mentioned on the same page in the Articles of Agreement. Be that as it may, in view of the fact that I have already held that the signing off date for B the plaintiff from the Articles of Agreement could not be extended beyond three days after 9‑5‑1996, that is the date he ceased to be a member of crew of defendant No. l vessel, I find that the plaintiff would be entitled to his wages up 16 to 12‑5‑1996 as per his contract with the owners of the defendant No. l vessel. Before parting with this case I feel it is necessary to take notice of the fact that in this suit a number of parties have been impleaded as defendants which include the vessel owners, the vessel's local legal agent the crewing agent and the shipping master, besides the mortgagee. It has now become usual practice whereby a plaintiff filing an admiralty suit includes a number of defendants in the plaint when the suit i5 in fact not maintainable against most of the defendants under the provisions of section 3(2) of the Admiralty Jurisdiction of High Court Ordinance, 1980 (hereinafter referred to as the Admiralty Jurisdiction Ordinance). In spite of the fact that it has been held in various authorities that these provisions are to be strictly construed, the prevalence of this practice in the admiralty jurisdiction is, in my view, reprehensible. In an admiralty suit in rem the plaintiff has to only implead the vessel through its owner. If the name of the owner of vessel is not known just the word "owner" would suffice. The vessel being an inanimate object cannot itself be made a party to the suit without the word "through it owner" being mentioned in the title to the plaint. Since such a suit is in rem it avails against all the world and no other party need be impleaded. Upon warrants of arrest being served upon the vessel anybody can appear in Court on behalf of the vessel and furnish security for the plaintiffs claim and obtain its release. In Admiralty law there is no restriction on any one furnishing security and defending plaintiff's claim. Indeed it is a cardinal principle of Admiralty law that the appearance of a party to defend a vessel makes the said party liable for the full claim of the plaintiff even if it exceeds the value of the vessel but if none appears to defend the vessel then regardless of the amount of the claim in suit the vessel's owner would be liable only to the extent of the value of the vessel. Other parties may be impleaded as defendants only if an admiralty action in personam is maintainable against them under the provision of section 3(2) of Admiralty Jurisdiction Ordinance. It is necessary that the above rule propounded by me is strictly followed because apart from the legal difficulties that arise when other parties are included against whom a claim under Admiralty jurisdiction does not lie, there are also some administrative difficulties. That is to say that notices have to be served on various defendants on the very day when the arrest of the vessel is sought, which is burdensome and time consuming. In view of the above discourse I hold that since the plaintiff has already received his wages up to 6‑10‑1995 he is now only entitled to his wages from 7‑10‑1995 till 12‑5‑1996 and this amount after due calculation as per his service contract is to be paid to the plaintiff from the amount held in the Court in respect of the sale proceeds of the vessel. If the balance sale proceeds lying in Court has been invested then pro rata up to date accrued interest due on amounts payable to plaintiff is also to be paid to him. This suit is directed in the above terms. No separate orders are necessary for effecting payment as per above decree. ' A copy of this judgment is to be sent to Director (Port and Shipping) Ministry of Communication, Government of Pakistan for dissemination of relevant excerpts from it to various concerned departments, in particular the Shipping Master, Government of Pakistan. H.B.T./S‑193/K Order accordingly.