Admiralty Suit
Admiralty Suit legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Plaintiff sought recovery of USD 874,161/- against charterer of vessel in question and order restraining the vessel from discharge of cargo till adequate surety was furnished
Validity
Dominance and peripheries of S.3(2)(h) of Admiralty Jurisdiction of High Courts Ordinance, 1980, were not unbridled and emancipated so that any person could bring any claim against the other
Word 'any agreement' had to be given a wide meaning but the same could not be stretched nor overextended in every case but it was contingent and depending upon circumstances of each case independently so as to bring case within the jurisdiction
Plaintiff failed to establish any probable and persuasive right to grant any injunctive order under O.XXXIX, Rr. 1 & 2, C.P.C. read with S. 94, C.P.C. in the variety and diversity of Mareva Injunction nor plaintiff was entitled to the relief of attachment of cargo shipped to defendant
Plaintiff did not move application under R.731 of Sindh Chief Court Rules (O.S.) but under O.XXXIX, Rr.1 & 2, C.P.C.; there was a marked distinction in significance and characteristics of both the provisions, the former could come to rescue in an urgent situation to cause arrest of vessel moored / anchored within territorial waters with or without condition of furnishing surety for further things to be decided then whereas in the latter situation some indispensable components and dynamics were to be satisfied such as the phrases "prima facie case, balance of convenience and irreparable injury"
Interim injunction was declined in circumstances.
Plaintiff filed Admiralty suit under S.3 of Admiralty Jurisdiction of High Courts Ordinance, 1980 against defendant-Vessel for recovery of dues and expenses, which plaintiff had incurred on behalf of the Vessel, including payment of dues to defendant-Port Authority
Defendant-Port Authority also filed Admiralty suit for recovery of its Port charges-High Court decreed both the suits, however, claim of defendant-Port Authority was held to have preference over the claims of other decree holders including plaintiff
Defendant-Vessel, having already been arrested under suit filed by other claimants, was put to auction, but amount realized from sale was less than the decretal amount of suits in question; and since, defendant had priority over the other claimants, the entire amount of sale along with profits earned therefrom, was released in its favour
Plaintiff contended that the suit filed by defendant did not fall within Admiralty Jurisdiction of High Court, as S.3(2) (m) of Admiralty Jurisdiction of High Courts Ordinance, 1980 did not cover the 'Port charges', as the same was in respect of dock charges and equipment, which were brought for construction or repair of ship and not in respect of ships which were normally birthed or anchored within the port area, and that defendant should have invoked either provisions of Port Qasim Authority Act, 1973 or original civil jurisdiction of High Court for detaining and attachment of the Vessel, and that only principal amount, out of the amount realized from sale of the Vessel, was to be paid to defendant, and profits earned on such amount should have been distributed amongst the other claimants including plaintiff
Defendant's plea that plaintiff could not challenge judgment and decree passed in its favour, as plaintiff was not aggrieved by the same, and that, being Port Authority, its claim fell within Admiralty Jurisdiction of High Court
Validity
Section 3(2) (m) of Admiralty Jurisdiction of High Courts Ordinance, 1980 covered the claim of Port Authority in respect of birthing of ship and provision of other facilities
Word 'or' in between 'ship' and 'dock charges' was to be read disjunctively (that was 'any claim in respect of dock charges or dues') and not conjunctively
Section 3(2)(m) of Admiralty Jurisdiction of High Courts Ordinance, 1980 started with 'any claim', which was in respect of either 'construction of a ship', 'repair of a ship' and 'equipment of a ship' and then 'any claim in respect of dock charges or dues'
Defendant's claim fell within Admiralty Jurisdiction as provided in S.3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980, and objection of plaintiff in that regard was misconceived
Plaintiff could not agitate the decree issued in favour of defendant, as plaintiff itself was in possession of decree in its favour and could only agitate rejection or reduction of its entire claim by High Court and not with regard to what had been allowed to others
Under S.21 of Port Qasim Authority Act, 1973, defendant, to recover its lawful dues and demands, could arrest and sell the Vessel on its own and proceeds of such sale might have been utilized for its specified claim
Such authority and power was a lien under Port Qasim Authority Act, 1973
Section 23 of Port Qasim Authority Act, 1973 was an alternative to said powers exercisable under S.21 of the Act
Under S.23 of the Act, defendant had paramount right, which had overridden claims of all other creditors or decree holders including secured creditors
Vessel in question, having been sold by Official Assignee of High Court, such sale and release of the vessel could not have been executed without consent of defendant
Defendant (Port Authority) could exercise its authority under S.21 or 23 of Port Qasim Authority Act, 1973 for recovery of its dues and port charges, in situations where the vessel arrived at port and did not pay its charges; however, no such power needed to be exercised, as the vessel had already been arrested by order of High Court passed under other suits
Vessel in question could not have been sold or delivered to auctioneer purchaser without first settling the dues of defendant
Defendant, after confirmation of sale by the Official Assignee, had refused to release the vessel before settlement of its dues, and the vessel allowed the sailing after show cause notice was issued to Chairman of the Port Authority
Port Authority had, therefore, exercised its right in terms of Port Qasim Authority Act, 1973
Vessel in question was already under arrest, defendant was, therefore, not required, nor that would be appropriate, to detain the same or invoke ordinary civil jurisdiction of High Court under S.9, C.P.C.
Impugned judgment and decree was, therefore, unexceptionable and did not warrant any interference by High Court
Appeal was dismissed in circumstances.
Application for stay of proceedings in an admiralty suit was filed by the defendant under S.4 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011
Contention of the defendant was that in the light of arbitration agreement between the parties, the proceedings of the suit could be stayed in terms of S.4 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011
Held, that arbitration agreement, in the present case, was incapable of being performed for the reason that the defendant had already initiated proceedings at the ICSID and it had therefore, itself created a situation where recourse to the arbitration clause between the parties would not be possible or feasible and therefore, the arbitration agreement was incapable of being performed
Present suit, therefore could not and ought not to be stayed under S.4 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; however, there appeared to be nothing in the New York Convention to suggest that the reason why the arbitration agreement was incapable of being performed must be of a permanent or irremediable nature and may well be temporary or remediable
High Court observed that if the reason or situation rendering the arbitration agreement incapable of being performed existed when the application for stay of proceedings under S.4 came up for hearing before the court, then such application was to be dismissed, but if subsequently the situation changed and the reason ceases to exist (e.g., the impediment was removed), no reason existed why the defendant could not renew the application if the proceedings were still pending
In the present case, if the ICSID proceedings failed or were abandoned, then defendant would be able to renew its application under S.4 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011
High Court further observed, however, that any such application, if filed, would be dealt with on its own merits and subject to the rights of the plaintiff and in the light of the circumstances then prevailing
Application for stay of proceedings of the Admiralty Suit, was dismissed, accordingly.
Precondition for invoking jurisdiction under S.4(4)(a)(b) of the Ordinance is that the person who would be liable on the claim in an action in personam, when the cause of action arose should beneficially own majority shares in the ship
Bald statement in the pleadings that the ship in question was the sister ship of offending ship or the inference that the ship was a sister ship for the reasons mentioned which were not sustainable was not sufficient to disclose a cause of action
Principles.
Principles.
Plaintiff had invited attention of the court to commercial invoices, bill of ladings, survey report, dry certificate after discharging, joint dip statement and letters of Chief Officers to the Master of Ship and contended that from the perusal of the documents shown it would be seen that invoices and bill of ladings show the manifested consignment and survey report revealed the short landing; that apart from survey reports short landings were further confirmed from the letters titled as "discrepancy bill of lading and ship quantity" addressed to the Master of the vessel by Chief Officer of the vessel and that short landing was also established from the perusal of joint dip statement
Defendants had not denied the genuineness of the documents produced
Held, plaintiff prima facie, had made out a case for confirmation of earlier order of arrest of the vessel
Actual quantum of loss was yet to be established by the plaintiff by leading evidence but at the present stage tentative assessment of the record suggested that plaintiff had made out a case of confirmation of orders of arrest
High Court observed that if the arrested vessel was allowed to leave the limits of the court's jurisdiction without a security, the suit shall loose its utility and may not be possible to execute the decree if any passed, as by time the suit will be finalized the vessel may sink or she may be purchased by a bona fide purchaser without notice
Applications for arrest of the vessel were allowed and the interim order passed in the suit was confirmed.
Suit was maintainable.
Bald statement in pleadings or inference that ship in question was sister ship for reasons not legally sustainable would not be sufficient to disclose a cause of action.
Defendant being owner and having major shares in chartered vessel had control over there, thus as per contract had transported goods thereby to port of destination
Arrest of sister ship of vessel, which was beneficially owned by defendant was just and proper
Defendant, who beneficially owned and operated such three vessels as per contract was responsible to carry goods and discharge same at port of destination
Defendant, thus, at later stage, could not escape itself from liability that vessels were not owned by it
Limitation in such case would run with effect from 29-6-2004, when plaintiff was informed that Customs Authorities had taken decision to auction suit consignment
Suit filed on 9-10-2004 was well in time.
Liability of slot charter stated.
Consignment, at the port of destination having been refused by the consignee and lying unattended, defendants on justified reasons, had shifted the consignment to another Port but there was no data to disclose, the date on which shifting was effected
Such factual position did not affect the plaintiff as at his request the defendants were even ready to transship the consignment from the Port of destination to another Port of different country but the plaintiff failed to agree to the terms and conditions on the ground that charges were exorbitant-Plaintiff however, could arrange other ship for transshipment of the consignment, which he failed
Excuse that defendants were charging demurrage/storage charges were also not of any help as at one time, the defendants agreed to charge lesser amount, but since there was no settlement on the controversies, therefore, the defendants started asking for total charge
Such factual position did not affect the merits of the case and defendants were not liable for any loss.
Plaintiff itself had shown, through its correspondence that it was fully aware about the fate of the consignment lying unattended, in the absence of receiver so it tried to shift the same to some other Port of another country but failed, nor it could prove any alleged buyer at the port where the consignment was lying unattended
Defendants had stated that the consignment was in good condition under original seal as was loaded from the Port of Shipment and nothing in rebuttal had been brought by the plaintiff
Ship/owners of Ship were not liable for anything in circumstances.
Ship owners/charters had claimed demurrage/ storage charges but the plaintiff had not been able to establish that they were on higher side
Shifting of the consignment from Port of destination to another Port by the defendants was basically due to fault of the plaintiff as its buyer backed out, otherwise all the incidents would not have happened and since the root cause lay with the plaintiff, therefore the claim of demurrage/storage charges did not give cause of action to the plaintiff
Defendants, though at one stage, for the purpose of settlement of issue waived demurrage/storage charges, but in the absence of any receiver for the consignment at the Port of destination they again started asking the same
From dual stana of the defendants regarding their defence that there was no buyer and secondly the consignment was shifted to other Port erroneously it was obvious that they had failed to give relevant dates
Defendants, in circumstances, were not entitled to claim demurrage/storage charges.
Record showed that consignee of the goods, had backed out from the contract, as firstly, there were discrepancies in the documents of Shipment which was evident from the letter of the plaintiffs Bank to the plaintiff itself and secondly there was nobody at the port of destination to receive the consignment, when the same landed nor there was any communication from the consignee that it was effected by non-availability of the consignment of the Port
Consignment, in such circumstances, remained unattended and almost abandoned
Consignee having backed out there was liability on the part of defendants.
Forfeiture of security amount deposited by successful bidder in first auction for his failure to lift auctioned goods completely
Re-auction of remaining goods and acceptance of bid offered by second bidder at the rate lower than that offered by successful bidder in first auction
Application by successful bidder in first auction offering higher rate than that offered by second bidder in re-auction
Validity
Re-auction had been held under orders of the Court and under supervision of Official Assignee and after completion of highest bid
Valuable right had been created in favour of second bidder after acceptance of his bid in re-auction, which could not be snatched leniently
Successful bidder in first auction had not lifted whole quantity of goods on pretext of decrease in its prices in open market and had chosen to get his security forfeited instead of lifting auctioned goods
Such attitude and behaviour of successful bidder had disentitled him to make subsequent higher offer and its acceptance
High Court refused to accept subsequent high offer of successful bidder in first auction and dismissed his application in circumstances.
Request of appellant to treat Infra-Court appeal filed mistakenly as appeal under S.7 of Admiralty Jurisdiction of High Courts Ordinance, 1980
Validity
Intra-Court appeal had been filed in time
Such request of appellant would not prejudice case of remaining parties
Division Bench of High Court converted Intra-Court appeal into appeal under S.7 of the Ordinance, 1980.
Liability of slot charter stated.
Failure of carrier to re-export goods to Pakistan as advised on 16-6-2004 by plaintiff-Auction of goods by customs authorities on Port of destination on 30-6-2004
Filing of suit by plaintiff on 9-10-2004
Validity
Notice of auction was served on 18-3-2004, but same was not communicated to plaintiff
Limitation in such case would run with effect from 29-6-2004, when plaintiff was informed that customs authorities had taken decision to auction suit consignment
Suit filed on 9-10-2004 was well in time.
Ingredients of the offence had been proved by the prosecution in all material particulars and repayment of the amount in Punchayat by the accused had proved the prosecution case
Conviction of accused was consequently upheld
Case was an old one and the accused who had faced the inquiry and had undergone the rigours of the trial had also paid some amount to the complainant
Sentence of three years' R.I. awarded to accused was reduced to 2-1/2 years' R.I. in circumstances.
If a vessel is arrested by a competent Court and if the same is illegally removed from its jurisdiction and a sale transaction is entered into illegally, it does not make the purchaser a necessary or proper party to the admiralty suit, if the bona fides of such sale transaction is doubtful on the face of it.
Effect-Defendants were debarred by Court from defending suit due to their failure to appear in Court either to contest suit or to furnish any security in respect of claim of plaintiff in spite of various opportunities granted to them
Plaintiff proved his claim by filing his affidavit in proof thereof
Plaintiffs suit was decreed as prayed for in circumstances.
"Admiralty Suit", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/14167
Precedents & Case Laws citing "Admiralty Suit"
1988 C L C 2417
Messrs COMPASS TRADING CORPORATION Ltd.‑‑Plaintiff Versus MANTA LINE INSC. and 2 others‑‑Defendants
Court: KarachiP L D 1989 Karachi 65
INHAM REFRIGERATION b.v. — Plaintiff Versus The OWNERS OF "F.T.PARIVASH" and "TRANSOCEAN HOLDINGS LTD." — Defendants
Court: ---S. 4(4)--Admiralty jurisdiction--Term 'Wages'--Meaning, scope and import of--Where a seaman was entitled to receive any amount or benefit which could be translated into money on account of his services as a seaman, same would be covered by the definition of 'wages' and could be the subject-matter of an Admiralty suit under Ordinance XLII of 1980--Plaintiff, however, in such suit should be either the seaman himself or his authorised agent--Where in suit 'A' the decree prima facie was not for wages by a seaman or by his authorised agent on his behalf, such plaintiff could not have priority over the plaintiff in suit 'B'--Decrees in other suit relating to supplies of necessaries etc. would come after the decree of plaintiff in suit 'B' in priority, the latter being mortgagee of the vessel--Priority in other cases would be, firstly, the decrees on account of wages, secondly, decrees on account of Master's wages and disbursement if any, thirdly, decree on mortgages, fourthly. necessaries and repairs and lastly ordinary decrees.--Words and phrases.1999 C L C 996
SIKANDAR‑‑‑Petitioner Versus M.T. EASTERN NAVIGATER and others‑‑‑Respondents
Court: KarachiP L D 1981 Karachi 419
Before Ajmal Mian, J Versus s. s. "NENDN"‑Defendant
Court: Read with Evidence Act (I of 1872), Ss. 33, 80 & 157‑Admiralty suit Preliminary inquiry‑Staternents of witnesses recorded by Inquiry officer----Held, cannot be used us as substantive evidence unless formally proved and brought on record.‑Evidence.P L D 2000 Karachi 258
JEHANZEB AZIZ DAR — Plaintiff Versus Messrs MAERSK LINE and others — Defendants
Court: High CourtP L D 2000 Supreme Court 57
YUKONG LTD. SOUTH KOREAN COMPANY, SEOUL, SOUTH KOREA‑‑‑Petitioner Versus M.T. EASTERN NAVIGATOR and 2 others‑‑‑Respondents
Court:2010 M L D 1047
Messrs NEW JUBLIEE INSURANCE CO. LTD. — Plaintiff Versus Messrs SHENZHOU SHIPPING LTD. and 3 others — Defendants
Court: Karachi1993 S C M R 812
M/s. ARFAH SHIPPING CO: ‑‑Appellant Versus M/s. KUWAIT FLOUR MILLS CO. and 2 others‑‑‑Respondents
Court: Supreme Court of Pakistan1986 C L C 2626
Messrs ALEXANDER G. TSAVLIRIS & SONS‑‑Plaintiffs Versus M.V. RICE TRADERS and another‑‑Defendants
Court: KarachiP L D 2002 Supreme Court 509
(PVT.) LIMITED. and 2 others — Petitioners Versus Messrs PING TAN FISHERY COMPANY and 5 others — Respondents
Court: High Court