1. ' SHABBIR AHMED, J.---The question involved in above appeals are almost common as to the facts and law, it is, therefore, considered proper to deal with together and to dispose them of by this judgment.
2. ' The above appeals have been filed by the appellants against the judgments dated 22-9-2003 passed in Admiralty Suits Nos.27 and 31 of 1999, filed by the respondent No,1 (for short the consignor) against the appellants and respondent No,2 (for short-consignee). By the impugned judgments, the admiralty suits, filed by the consignor, were decreed against the appellants in the sum mentioned in the judgments with mark-up at 12% per annum from the date of institution with costs.
3. ' In order to facilitate consideration of the question involved in these appeals, it is considered convenient to deal with the Appeal No,8 of 2003 and the conclusion arrived on the basis of contentions raised on either side will be applied to both appeals.
4. ' The case of the consignor, sans unnecessary details, is that the consignor, a proprietary concern Messrs Sadruddin and Co., is engaged in the business of import and exports, whereas, appellant No,1 is an Ocean going vessel (for short-vessel), owned/chartered by appellant No,2 (for short-the owner) and the appellant No,3 is the Local Agent of the owner. The consignor exported Potatoes from Karachi to Colombo to the consignee through eight consignments involving four vessels. The details of consignment and vessels are as follows:-- B/L No, & DateVessel Quantity Value in US $ (Subject of Appeal No,8 of 2003)
(a) C550014323 12-4-1999 Lamon Bay 420 Bags Potatoes6860.70
(b) 0550014322 12-4-1999 Lamon Bay 4200 Bags 6860.70 C550014128 22-3-1999 La Boheme 3560 Bags 5286.60 C550014129 22-3-1999 La Boheme 3560 Bags 5286.60 C550014390 19-4-1999 La Boheme 2520 Bags 3742.20 C550014391 19-4-1999 La Boheme 2520 Bags 3742.20 (Subject of Appeal No, 9 of 2003)
(c) KHI/CBO/453016-4-1999 Sinar Padang2525 Bags of Potatoes0.63
(d) KHI/CBO/18602-3-1999 Swat 3300 Bags of Potatoes 4900.50 ' The consignor instructed the owner to release the consignments covered by the aforesaid Bills of Lading to the consignee against Bank Guarantee, though the consignments were shipped on DAP (Documents against payment) basis. The consignor after the shipment through their Bankers sent the shipping documents to the Bankers of the consignee for collection. It was pleaded that the appellant was required to deliver the consignments covered under the aforesaid bills of lading either on surrender of original bills of lading or on furnishing valid Bank Guarantees by the consignee. It was further their case that the consignments referred to above were delivered to the consignee without surrender of original bills of lading and without obtaining bank guarantee. As a consequence thereof, the consignee did not retire the documents pertaining to the said consignments on payment. The shipping documents have since been returned by the collecting bank to the Bankers of the consignor. On account of wilful and deliberate breach of contracts of Affreightment, the consignor suffered loss detailed in para.7 of the plaint, after serving notices, the suits were filed.
5. ' On 18-8-1999, the appellant vessel was arrested, however, on execution of bank guarantee in the suit amount to the satisfaction of the Nazir, the vessel was free to sail. In consequence thereof, two guarantees were furnished by the appellants separately in above suits.
6. ' On notice, the appellants contested the suits through joint written statement, whereby raising the legal as well as factual pleas. On legal plane, the jurisdiction of this Court to entertain the suit was challenged for the reason that the cause of action, if any, has accrued at Colombo, where the alleged bank guarantees were furnished by the consignees.
7. ' On factual plane, their plea was that sealed containers were received as disclosed in the relevant bills of lading for delivery at the Port of Colombo. It was also admitted that the instructions for release of consignment against the bank guarantee but they have denied that the consignments were shipped on D.A.P. Basis. It was their case that due to instructions for release of the consignment against the bank guarantee, it was not required under the law to demand the original bills of lading from the consignees and were bound to act upon the new contract embodied in the letters and to deliver the goods under the bank guarantee as instructed by the respondent. They have also admitted the receipt of the legal notice and maintained that they are not liable for the alleged loss nor the loss falls within the definition of Admiralty Ordinance as such, the suit is liable to be dismissed with costs.
8. ' Out of the pleadings of the parties, the following issues were framed:--
(1) Whether this Honourable Court has no jurisdiction to entertain the suit?
(2) Whether there is no private of contract between the plaintiff and defendant No,3?
(3) Whether the defendants delivered the suit consignments to defendant No,4 without surrender of Bill of Lading and without obtaining Bank Guarantees from defendant No,4 in violation of contracts of affreightment executed between the plaintiff and defendant Nos.1 to 3. If so, to what effect?
(4) Whether on account of breach of contracts of affreightments committed by defendant Nos.1 to 3 the plaintiff suffered any loss/damage. If yes, to what effect?
(5) Whether the defendants are liable to pay/ compensate the plaintiff for the losses sustained by the plaintiff?
(6) What should the decree be?
9. ' The consignor examined himself and was subjected to cross-examination. None was examined on behalf of the appellants except certain documents were placed on record.
10. ' The undisputed facts are that Bank guarantees furnished by the consignee were found fake and the matter was investigated by the relevant authorities at Colombo.
11. ' After hearing the arguments and on consideration of the evidence, the learned Single Judge recorded the following findings:-- ' Issues 1 and 2:---issues dropped on the joint statement' that these issues may be dropped, as unnecessarily framed.
12. ' Issues 3, 4 and 5:---were jointly discussed and were decided against the appellants. As a consequence thereof, the suits were partly decreed in the amount mentioned in the judgments.
13. ' The judgments are subject of the present appeals.
14. ' Learned counsel for the parties were put on notice that the aforesaid appeals would be heard and would be disposed of finally at Katcha Peshi stage and the learned counsel have argued the appeals for final disposal.
15. ' We have heard Mr. R.F. Virjee, learned counsel for the appellants in both appeals and Mr. Abul Inam, learned counsel for the respondents in both appeals.
16. ' Mr. R.F. Virjee, learned counsel for the appellants has raised the following grounds in support of the appeals.
17. ' The first being Forum of convenience, it was argued that in the instant case, the forum convenient would lie at Colombo where lies the cause of action, the consignment was delivered there. The suit filed by the respondent is based on cause of action accrued at Colombo, as such, the Court should have . Stayed the suit and directed the respondent to file the suit in Colombo and in support of his contention, he referred the cases of (1) The Atlantic Star 1973 Vol.2 All ER 175 and (2) Spiliada Maritime Corp. v. Cansulex Ltd. 1986 Vol. 3 All ER 843. In later case, the principle and the factors with regard to the stay of the proceedings on forum of convenience were highlighted by stating that 'in considering whether there was another forum which was more appropriate the Court would look for that forum with which the action had the most real and substantial connection, e.g. In terms of convenience or expense, availability of witnesses, the law governing the relevant transaction, and the places where the parties resided or carried on business. If the Court concluded that there was no other available forum which was more appropriate than the English Court it would normally refuse a stay. If, however, the Court concluded that there was another forum which was prima facie more appropriate the Court would normally grant a stay unless there were circumstances militating against a stay'.
18. We are of the view that the plea of forum of convenience at appellate stage is not available for the reason that such plea for stay was not raised during the trial, once the remedy has not been availed and the trial of the suits concluded. In appeal, such a plea is not available.
19. ' Another ground which has pressed the learned counsel for the appellants was that the Admiralty jurisdiction of the High Court at Karachi was not available to the respondent No,1, for the reasons that cause of action or part thereof has accrued at Colombo, where the consignments were delivered on bank guarantee on instruction of the exporter, which was subsequently found bogus, the matter of bank guarantee, being fake or otherwise has been investigated at Colombo.
20. Precisely, the question is whether on account of accrual of cause of action outside Pakistan, a lis cannot be brought under admiralty jurisdiction of High Court. Such question was considered in Global Shipping Co. (Pvt.) Ltd. v. M.V. Sea Elite and others 1985 CLC 1569. In above case, similar pleas were raised (i) that the Court has no jurisdiction to entertain an action in rem, (ii) nor the cause of action has arisen within the territorial jurisdiction of this Court and the suit cannot be instituted here on first plea, the learned judge said:- "The High Court can exercise Admiralty jurisdiction in respect of question, claim and cases specified in clausel (a) to (r) of subsection (2) Of section 3 of the Ordinance. In all cases the jurisdiction can be invoked by an action in personam subject to the limitation placed by section 5 relating to the claim arising out of collusion and other similar cases specified therein. Section 4 of the Ordinance provides the mode of exercise of Admiralty Jurisdiction. In cases falling under clauses (a) to (i) and (r) of subsection (2.) of section 3 action in rem can be filed against the ship or property in question. Action in rem can also be filed where the claimant has a maritime lien or charge on the ship or other property. Yet in another class of cases falling under clauses (e) to (h) and (j) to (q) the Admiralty Jurisdiction can be invoked by an action in rem against the ship provided the person who would be liable for such claim in an action in person am was, when the cause of action arose, the owner, charterer or in possession and control of the ship and at the time when action is brought that person beneficially owns the majority shares in the ship."
21. ' With regard to the objection that the cause of action having not arisen within the territorial jurisdiction of this Court and the suit cannot be instituted. This plea was addressed as follows:-- "This argument is based on the provisions of Code of Civil Procedure and completely ignores the nature and characteristics of an action in rem which is different from an ordinary civil suit. In exercise of Admiralty Jurisdiction which can be invoked by an action in rem, the Admiralty Court can exercise jurisdiction over all ships whether Pakistani or not, and whether registered or not and wherever the domicile of their owners may be. The Admiralty Court can exercise jurisdiction in respect of all claims, causes and questions specified in clauses (a) to (q) of subsection (2) of section 3 of the Ordinance wherever arising. If the claim is entertainable under the Admiralty Jurisdiction which can be invoked by an action in rem, then irrespective of the fact that the cause of action has arisen within the territorial' jurisdiction of the Court or not and the parties are domiciled in a foreign country, an action in rem can be entertained."
22. Therefore, the plea that this Court has no jurisdiction as no cause of action has accrued within the territorial jurisdiction of this Court is not tenable. Once the claim is enertainable under the Admiralty jurisdiction which can be invoked by an action in rem, then irrespective of the fact that the cause of action has arisen within the territorial jurisdiction of the Court or not, an action in rem can be entertained in Admiralty jurisdiction of this Court.
23. ' Mr. Abul Inam, learned counsel for the respondents supported the judgment by contending that the appellants have not disputed the ownership of the appellant No,2 in respect of the appellant 1.
24. To support this contention, he referred para.1 of the plaint and reply thereof by the appellant, these are as follows:- "1. That the plaintiff carries on the business of import and exports at Karachi under the name and style of his sole proprietary concern Messrs Sadruddin and Co. The defendant No,1 is an Ocean going vessel owned/chartered by defendant No,2 and defendant No,3 is the Local Agent of defendant No,2, whereas, defendant No,4 is the consignee of the goods shipped by the plaintiff on board the defendant No,1"
25. "1. With reference to para.1 of the plaint it is not admitted that the plaintiff is Sole proprietor of Messrs Sadruddin & Co. The plaintiffs are put to strict proof of the same. It is therefore, submitted that the suit is barred under section 69 of the Partnership Act."
26. ' His further submission was that consignment was released on fake bank guarantees, the consignor has not received the payment. The appellants were required to release the consignments against the bills of lading or bank guarantee. They have released the consignments against fake/forged bank guarantees, resulting in loss to the consignor, thus they are liable for the loss suffered by him arising out of the affreightment agreement.
27. ' Mr. Abul Inam, learned counsel for the respondent very candidly contended that the respondent No,1 has based his claim under clause (h) of subsection (2) of section 3. His further contention was that subsection (4) of section 4 of the Ordinance provides that in case of any such claim as is mentioned in clauses (e) to (h) and (j) to (q) of subsection (2) of section 3, the Admiralty jurisdiction can be invoked by an action in rem against the ship provided the person who would be liable for such claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of the ship and at the time when action is brought that person beneficially own the majority of the shares in the ship. He also argued that the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against:--
(a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person; or
(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid: ' The next contention in support of the appeals, raised by the learned counsel for the appellant was that the plea of sister ships has not been pleaded between the offending ships, therefore, suit for action in rem against the appellant No,1 is not maintainable. Elaborating his contention, he pointed out that there were two offending ships in each suit i,e, `Lamon Bay' and `La Boheme' in Suit No,27 of 1999, whereas `Sinar Padang' and 'Swat' in Suit No,31 of 1999. There is nothing in the pleading that above ships are sister ship. The claim against one offending ship can be enforced against another provided both are beneficially owned by appellant No,2. He further pointed out that the respondent has not pleaded that `La Boheme' is also beneficially owned by defendant No,2, in order to bring the action in rem against 'Lamm bay', likewise, the claim against 'Swat' cannot be enforced against 'Sinar Padang' in absence of like pleading. To support this contention, he referred the case of M. V.
28. Sea Success I v. Liverpool and London Steamship Protection and Indemnity Association Ltd. And another AIR 2002 Bombay 151, wherein, inter alia, the following question came for consideration in appeal against the order, whereby the request to reject the plaint on the plea, by appellants for want of cause of action was declined:-- ' What is required to be disclosed by the plaintiff is clear right to sue and failure to do so must necessary entail in rejection of plaint.'
29. ' The plaintiff, therein pleaded that the defendant vessel, 'Sea Success-I' is a sister ship of the two vessel M.V. `Sea Glory' and 'Sea Ranger' in view of the beneficial ownership, management and control of all three vessels having vested in defendant No,2. That the defendant No,2 is liable in personam in respect of the unpaid insurance premium in respect of the two vessels 'Sea Glory' and 'Sea Ranger'. Consequently the plaintiff is entitled to arrest any other vessel in the ownership of defendant No,2, the 1st defendant vessel is owned by defendant No,2 through its 100% subsidiary S.S. Shipping Co. Inc. In the circumstances, the plaintiff submitted that they in entitled to proceed against the defendant vessel in rem and are entitled to an order of arrest, detention and sale of the vessel for recovery of their outstanding dues in respect of insurance premium.
30. ' The basis of the allegations that defendant No,1 vessel Sea Success-I is owned and/or controlled by defendant No,2 was that the defendant No,2 is holding company of the subsidiary company S.S. Shipping Corporation Inc. Monrovia. In other words, the basis on which plaintiffs case rests against the defendant No,1 vessel 'Sea Success I' was that the defendant No,2 by virtue of being the sole and controlling shareholder of S.S. Shipping Corporation Inc. Of Monrovia is the owner of defendant No,1 vessel Sea Success I. The defendant No,1 vessel 'Sea Success I' sister ships of two vessels 'Sea Glory' and 'Sea Ranger' in view of the beneficial ownership, management and control of all three vessels having vested in defendant No,2.
31. ' The question formulated was whether the aforesaid allegations disclose the legal recognizable claim against the defendant No,1 vessel 'Sea Success I'
32. ' It was held that section 25(a) of the Indian Merchant Shipping Act, 1958 provides that property in a ship shall, be divided into ten shares. In maritime law worldwide ownership of a ship is denoted by the concept of the owner of the shares in a ship. The owner of the share cannot be considered owner of the company. Fundamentally each company incorporated in law is a distinct legal entity and mere incorporation of 100% subsidiary company by its parent company cannot lead to the conclusion that the assets of the former belong to and are owned by parent company . The relevant observations are contained in para.55 of the report:- "55. Admittedly the defendant No,1 vessel 'Sea Success I' is not the offending vessel or in other words claim of unpaid insurance premium is not towards the defendant No,1 vessel. The action in rem under Admiralty jurisdiction has been initiated by the plaintiffs against the defendant No,1 vessel Sea Success-I on the basis of allegations or it being a sistership i,e, a ship in the same beneficial ownership as the ships 'Sea Glory' and 'Sea Ranger' in regard to which the claim arose. In case of M.V. Mariner IV (1998) I Mah LJ 751, the Division Bench of this Court held. 'The Admiralty jurisdiction could be invoked not only against the offending ship in question but also against a sistership in regard to which the claim arose', and this legal position is not disputed before us but the question is whether the allegations made in the plaint, particularly paragraphs 1 and 14 which are only relevant paragraphs in that regard by themselves prove that defendant No,1 vessel 'Sea Success-I' is the sistership of the vessels 'Sea Glory' and 'Sea Ranger'. The answer is clearly no as the only pleading in respect of the defendant No,1 vessel 'Sea Success-I' being sistership of ships 'Sea Ranger' and Sea Glory' is that vessel 'Sea Success-I' is owned/controlled by defendant No,2 through its 100% wholly owned subsidiary S.S. Shipping Corporation Inc. Of Monrovia and we have already indicted above that on that basis defendant No,2 cannot be held to be owner of the vessel 'Sea Success-I' since the ownership of a vessel is denoted by the shares in the ship and there is no allegation worth the name in the entire plaint that the defendant No,2 owns the shares in the defendant No, 1 vessel Sea Success-I."
33. ' The appeal was allowed, plaint was rejected for want of cause of action.
34. ' The pivotal question for consideration is whether the action in rem against the vessel 'Lamon Bay' is maintainable in respect of claim against 'La Boheme'. In like manner action in rem against C.V.
35. Sinar Padang' in respect of claim against 'M.V. Swat'. It may be noted that all four vessels are offending ships. The vessel 'C.V. Lamon Bay' carried two consignments, whereas, 'C.V. Sinar Padang' one consignment. They are appellant No,1, whereas, 'La Boheme' carried four consignments, one consignment on 'M.V. Swat'.
36. ' Before proceedings further, it would be proper to refer the provisions of sections 3 and 4 of the Admiralty jurisdiction of High Court Ordinance, 1980. These provisions are:- "3. Admiralty jurisdiction of the High Court.- --(1) The Sindh High Court and the High Court of Balochistan shall have and exercise, within their respective territorial jurisdiction. Admiralty jurisdiction as is in this respective territorial jurisdiction. Admiralty jurisdiction 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, questions or claims:---
(a) ----------------------
(b) ---------------------- (c)
(d) ----------------------
(e) ----------------------
(f) ----------------------
(g) ----------------------
(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.
37. (i)
38. U) (k)
39. (1)
40. (m)
41. (n)
42. (o)
43. (p)
44. (q)
45. (r)
46. (3)
47. (4)
48. (5)
49. (a)
50. (b)
(c) ----------
4. Mode of exercise of Admiralty jurisdiction.---(1) Subject to the provisions of section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam.
(2) The Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d), (1) and (r) of subsection (2) of section 3 be invoked by an action in rem against the ship or property in question.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that ship, aircraft or property.
(4) In the case of such claim as is mentioned in clauses (e) to (h) and (i) to (q) of subsection (2) of section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action: in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of the ship, the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against- "
51. ' A perusal of the above quoted section 3 indicates that subsection (2) thereof enumerates the cause; questions or claims in respect of which the High Court referred to in subsection (1) shall exercise Admiralty jurisdiction.
52. ' The consignor has invoked the Admiralty jurisdiction of this Court by pleading his claim in terms of clause (h) of subsection (2) of section 3 in respect of a claim arising out of an agreement relating to the carriage of goods in a ship.
53. ' The reading of clause (h) of subsection (2) of section 3, quoted above indicates that it covers any claim arising out of an agreement relating to the carriage of goods in a ship or to use or hire of the ship. There can be no dispute that bill of lading is an agreement relating to carriage of goods. If any reference is required, the cases of (1) Compagnie Continentale (France) S.A. v. Pakistan National Shipping Corporation and 2 others PLD 1986 Karachi 447; (2) The Eschershim (1976) 2 Lloyds Law Reports 1; (3) The Antonis P. Lemos (1983) Lloyds Law Reports 310 and (4) Dada Steel Mills (Pvt.)
54. Limited, Karachi v. M.V. I, Van and 2 others PLD 1992 Karachi 444 may be referred. Section 4(3) enables a plaintiff to invoke the Admiralty jurisdiction against the ship in connection with which the claim arise, whether or not at the time when the action is brought, it remains in the same ownership.
55. ' Section 4(4) enables the plaintiff to invoke Admiralty jurisdiction, in respect of any such claim as is mentioned in clauses (e) to (h) and (i) to (q) of subsection (2) of section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam, was, when the cause of action arose, the owner or the charterer of or in possession or in control of the ship, the Admiralty jurisdiction of High Court may, whether the claim gives rise to a maritime lien or the ship or not may be invoked by an action in rem against:--
(a) that ship, at the time when the action is brought it is beneficially owned as respect majority share therein by that person; or
(b) any other ship which at the time when the action is brought is beneficially owned as aforesaid.
56. ' In applying section 4(4) one has to take into consideration the existing facts at the time when cause of action arose in connection with offending ship. In order to invoke the jurisdiction, the plaintiff has to plead that:--
(a) The claim falls in any of the clauses (e) to (h) and (j) to (q) of subsection (2) of section 3 and arises in connection with a ship.
(b) When the cause of action in personam arose.
(c) The person liable in an action in personam at the time when such cause of action arose, was the owner or charterer of or in possession or in control of the offending ship.
(d) The offending ship or any other ship when is sought to be arrested at the time when action is brought is beneficially owned as respect of majority shares by the person liable on the claim in an action in personam.
57. ' The significant expressions in the provisions are beneficially owned as respect majority share'. The person liable for the claim in an action in personam should beneficially own majority shares. On compliance of this condition an action in rem for arrest of a sister vessel can be filed. Lord Denning in I Congreso del parlido [(1981)] 1 All England Law Reports 1092 while considering the effect of section 3(4)(b) of Administration of Justice Act, 1956 (analogous to section 4(4) of the Ordinance with slight difference with regard to the beneficial ownership as respect of the shares. In British Act, the person who would be liable on the claim in an action in personam should beneficially own majority shares, whereas in the Ordinance such person should own majority share) said:-- `In applying section 3(4)(b) you have first to consider the position at the time when the cause of action arose in connection with offending ship. You have then to discover a person who would be liable on the claim in an action in personam. Having discovered him, you have to consider the position at the time when the action is brought. You have then to enquire whether that person at that time beneficially owned any ship (a sister ship) besides the offending ship. If there is such a person, you can invoke the Admiralty jurisdiction of the High Court against that sister ship.'
58. ' The pre-condition for invoking jurisdiction under section 4(4) (a)(b) is that the person who would be liable on the claim in an action in personam was, when the cause of action arose should beneficially own majority shares in the ship only then sister ship can be arrested.
59. ' Reverting to the claim of the consignor, in all eight consignments were shipped on four vessels.
60. They are `Lamon Bay', 'La Boheme', `Sinar Padang' and 'Swat' Two consignments on board `Lamon Bay' four consignments on board 'La Boheme', whereas one consignment each on board. 'Sinar Padang' and 'Swat', were shipped, thus four offending vessels. The appellant No,1 in both appeals are `Lamon Bay' and `Sinar Padang'. They were arrested and on furnishing surety they were allowed to sail. The appellants have not contested their ownership with appellant No,2. Therefore, the consignor can maintain an action in rem against the appellant vessel `Lamon Bay' in respect of the claim arising out of consignment shipped on board the said vessel. Likewise, the action in rem is maintainable against vessel `Sinar Padang' in respect of consignment shipped on that ship. In the Permina (108 I Lloyds Law Report 308) the Court of Appeal of Singapore said:- "The ship that is liable to arrest is that ship which is beyond doubt the ship in connection with which the claim arose."
61. ' The main question for consideration here is whether the consignor's claim in respect of vessels other than `Lamon 'Bay' and `Sinar Padang' (appellant No,1 in both appeals) can be entertained under the Admiralty jurisdiction of this Court. The legal position with regard to interpretation of section 4(4) of the Ordinance is well-settled. A ship which is not connected with the claim arising under clauses (e) to (h) and (j) to (q) of subsection (2) of section 3 can be subjected to an action in rem if it established that when the claim under the aforesaid provisions arose in connection with a ship, the person who would be liable in an action in personam was the owner or charterer of or in possession or in control of that ship and further that when the action is brought the same person is beneficial owner of majority shares in other ship in respect of which lis has been brought. The question in the instant case is whether plaintiff has pleaded that `Lamon Bay' is sister ship of 'La Boheme' and `Sinar Padang' is sister ship of 'Swat'. Reference to paras.1 and 2 of the plaint is necessary. These are:-- "(1) That the plaintiff carries on the business of import and exports at Karachi under the name and style of his sole proprietary concern Messrs Sadruddin and Co. The defendant No,1 is an Ocean going vessel owned/chartered by defendant No,2 and defendant No,3 is the Local Agent of defendant No,2, whereas, defendant No,4 is the consignee of the goods shipped by the plaintiff on board the defendant No, 1.
(2) That in the usual course of business the plaintiff entered into an agreement with defendant No,4 for the Export of Potatoes from Karachi. Accordingly the following four (4) consignments of Potatoes were entrusted/handed over by the plaintiff to defendant No,3 for shipment and delivery to defendant No,4 on board the vessel including defendant No,1 detailed against each consignment" .
62. ' The perusal of paras.1 and 2 would reveal that it is not pleaded that C.V. `Lamon Bay' and 'La Boheme' are sister ship. Likewise, nothing has been stated in the plaint with regard to the M.V. Swat with C.V. `Sinar Padang'. In absence of a plea that the La Boheme is sister ship of C.V. Lamon Bay, the claim with regard to the offending ship La Boheme cannot be enforced in an action in rem against C.V. Lamon Bay. Likewise, the claim against the offending ship M.V. Swat cannot be enforced in an action in rem against C.V. Sinar Padang.
(1) In Appeal No,8 of 2003
(a) C550014323 12-4-1999 Lamon Bay 420 Bags Potatoes6860.70 C550014322 12-4-1999 Lamon By 420 Bags 6860.70 Total US$ 13721.40 equivalent to Pak Rs.7,40,955.60
(ii) In Appeal No, 9 of 2003 KHI/CBO/453016-4-1999 Sinar Padang2525 Bags of Potatoes374'
(c) Equivalent to Pak Rs.2,02,480 ' Learned counsel for the respondents was not in a position to persuade us that in absence of pleadings in terms of section 4(4), the claim in respect of 'La Boheme' can be enforced in an action in rem against `Lamon Bay'. Like wise claim in respect of 'Swat' cannot be enforced in an action in rem against `Sinar Padang'. Therefore, the claim against the offending vessels 'La Boheme' and 'Swat' are not enforceable against the appellant No,
1. Resultantly the respondent consignor claims are reduced to the extent of consignments shipped on vessels `Lamon Bay' and `Sinar Padang', which are as follows:-- ' Resultantly, the appeals are partly allowed with proportionate costs. The decrees are modified in the sum of Rs.7,40,955.60 (in Admn. Suit No,27 of 1999) and Rs.2,02,480 (in Adm. Suit No,31 of 1999) respectively.
63. ' With the above modifications, the appeals stand disposed of.