1. In view of the order proposed to be passed, at serial No.4 (on C.M. A. No.534 of 2004) defendant No.5 is granted eight weeks time as requested for filing the written statement.
2. Adjourned to 7-12-2004.
3. (C.M. A. No.5541 of 2004) this is an application under Order I, rule 10(2), C.P.C. filed by the defendant No.9, Messrs Central Insurance Company Limited, and a consortium leader, who were joined at the motion of plaintiff as pro forma defendant. It was alleged that the defendant No.9 were paying certain amount to the owners of the vessel 'Tasman Spirit' in satisfaction of claim of consignee of cargo on board the vessel. Plaintiff claimed that they were entitled to the amount. It was contended by Mr. Hassan Akber, learned counsel that defendant No.9 is neither a necessary nor proper party, the dispute is between the plaintiff and other defendants. According to him, claim if any, of the plaintiff is fully secured against the guarantee furnished by the defendant No.9. It was contended that the amount was paid directly to the salvagers and not to the owners of the vessels as alleged. According to him controversy between the plaintiff and defendant No.9 if at all is limited to the extent whether this amount was paid directly to the salvagers or to the owners of the vessel.
2. Therefore, defendant No.9 cannot be dragged in the prolonged dispute and likely appeals between the plaintiff and the contesting defendants that may take years all together before it is finally settled. He therefore, urged that if preliminary issue is framed and decided on the short controversy that sprung between the plaintiff and defendant No.9, he would be satisfied. Mr. Shaiq Usmani, appearing for the plaintiff has no objection to such proposal.
3. Under circumstances and by consent of all the parties following issue is framed:
(i) Whether a sum of US $4,122,881.99 or any part thereof has been paid to the owner of the "Tasman Spirit" or to the salvagers, if so, what amount?
(ii) Whether the defendant No.9 Insurance Company is liable to pay any amount to the plaintiff? If so, what amount?
(iii) What should the order be.
4. By consent above preliminary issue to be decided at an early date and the plaintiff may lead evidence to prove its claim as against the defendant No.9. In rebuttal the defendant No.9 may also lead their evidence.
5. List of witnesses and documents to be filed by the plaintiff and defendant No.9 within two weeks.
6. By consent Mr. Justice (R) Zahid Qurban Alvi is appointed as Commissioner to record evidence on this preliminary issue. Fee of the Commissioner initially to be paid by the defendant No.9, to be adjusted towards cost if any. Fee to be settled by the learned Commissioner. Evidence to be completed preferably within a period of two months. Office is directed to issue intimation to the learned Commission without delay.
7. Application disposed of.
4. By consent C.M. A. No.534 of 2004, under Order I, rule 10, C.P.C. filed by the Master of the vessel M.V. 'Tasman Spirit' the defendant No.5 was also taken up.
8. In this suit for damages filed by the Trustees of Port Karachi, listed application, seeking striking off name has been by the master of the vessel.
9. Mr. Muhammad Naeem, learned counsel for the defendant No.5 raised threefold arguments. Firstly that the Master of the vessel is agent of the owner (principal) and in presence of defendant No.2, the principal, Master cannot be held liable for the claim in suit. Secondly, Master of the vessel, if at all, is liable only if the vessel or her servants cause damage to the property of the Port, according to him since no loss or damage to the property of port was caused. According to him, it is the seawater that was polluted and the plaintiff cannot claim any title to sea or its water, therefore, master could not be held liable. Lastly, it was contended, the wreck of the vessel was sold for Rs.100 million, which amount has since been deposited with, and invested by, the Official Assignee under direction of this Court, and can be adjusted towards the claim against the Master, if any.
10. As against this M r. Shaiq Usmani learned counsel for the plaintiff controverted the contentions of Mr. Naeem. It was contended that the liability of the master of vessel is not only for the damage to the port property its servant but is also liable for the cost of removal of the wreck. Mr. Usmani, further contended that damages suffered by the plaintiff are detailed in para.26 of the plaint. Direct damages to the extent of Rs.12,890 million are claimed in addition to other indirect and consequential losses. According to him the wreck/vessel was sold for Rs.100 million only, which amount is far less than the actual claim. Mr. Usmani, further contends that the master of the vessel is otherwise jointly and severally liable in terms of section 89 of the KPT Act.
11. Mr. Kamal Asfar and Mr. Nadeem Azhar Siddiqui. learned D.A.-G. for P.N.S.C. adopts the arguments of Mr. Usmani.
12. I have heard the arguments and perused the record. Adverting to the first contention of Mr. Naeem, that in presence of owner (Principal) of the vessel, master (agent) cannot be held responsible. The argument seems to be resting on the general rule of law that Principal is liab I for the act of his agent.
13. Responsibility to bear the damage to the Port or its servants, consequences of sinking or grounding of vessel in the port limits or approaches and liability to pay penalty for misdeclaration, are imposed under section 89 of the K.P.T. Act, 1886 on the master, agent and owner of the vessel.
14. Section 89 ibid, runs as follows:-- Section 89. Responsibilities of Master etc.--The Master, Agent and owner of a vessel shall, severally and jointly, be responsible for:--
(a) any damage caused to the property and servants of the port, whether within Port's limit or in the approaches, by their vessel or servants and such vessel shall be detained till such time the costs of the damage as determined by the Board are paid;
(b) any misdeclaration of particulars of a vessel and for disobeying the parameters specified for handing of vessels in Karachi Harbour and shall be liable to a penalty not exceeding five hundred thousand rupees to be imposed by the Chairman or Deputy Conservator; and
(c) the sinking or grounding of any vessel or causing damage to any other vessel in the Port limits or approaches and for removal of the vessel at their own risk and cost failing which the Board may salvage or remove such vessel out of the Port's limit and the cost of such removal shall be recoverable from the sale proceeds of such vessels.
15. Section 89 of the K.P.T. Act, imposes statutory responsibility jointly and severally on the master, agent and owner of the defaulting vessel for, (a) Any damage caused to the property and servants of the Port, whether within Port's limit or in the approaches. (b) Any misdeclaration of particulars of a vessel and for disobeying the parameters specified for handing of vessels in Karachi Harbour. (c)
16. Damage to any other vessel in the Port limits or approaches caused on account of the sinking or grounding of any vessel.
17. Defaulting vessel could also be detained till such time the costs of the damage as may be determined by the Board are paid. Master, agent and owner are also responsible for removal of the vessel at their own risk and cost failing which the Board may salvage or remove such vessel out of the Port's limit and the cost of such removal shall be recoverable from the sale proceeds of such vessel(s).
18. The responsibility of the master, agent and the owner of the vessel under section 89 of the K.P.T. Act, is joint and several. Statutory responsibility to answer the claim and reimburse the damage caused to the third party imposed by law section 89 ibid on the owner, agent and master is individual as well as co-extensive.
19. The word 'responsibility' as used in section 89 of the Karachi Port Trust Act is not defined in the Act.
20. 'Responsibility and responsible' has been defined in Black's Law Dictionary Sixth Edition (1990) at page 1312 as follows:-- "Responsibility": The state of being answerable for an obligation, and includes judgments, skill, ability and capacity. (McFarland v. George, Mo. App. 316 S.W. 2d 662,671.) The obligation to answer for an act done, and to repair or otherwise make restitution for any injury may have caused. See also liability, responsible.
21. Responsible: Liable; legally accountable or answerable. Able to pay a sum for which he is or may become liable or to discharge an obligation, which he may be under.
22. From the definition of the word responsibility, it seems that it is synonymous to 'liability'. Phrase "severally and jointly be responsible" as used in section 89, means that the owner, master and agent of the vessel are individually and collectively responsible to the third party for the wrongful act of the vessel or its servant. The liability to be legally answerable for an act done, and to repair or otherwise make restitution for any injury that may have been caused by the defaulting vessel or her servant, is statutory and not contractual. It is an obligation imposed by law, neither of three can seek exoneration from the responsibility to answer and satisfy the lawful claim of the Port for the damages arising out of wrongful act of the defaulting vessel. Therefore in view of said legal position as discussed above contention of Mr. Naeem, that in presence of owner of the vessel, master of the vessel cannot be held responsible, cannot be C sustained. Attending to other contention of Mr. Naeem, that no damage to the property of the Port has been caused, and any pollution to the seawater cannot be claimed. It was further contended that sale proceed of the vessel/wreck of the vessel in the sum of Rs.100 million lying deposited with the Official Assignee could be set off against such loss if any, therefore, presence of the defendant No 9 is not necessary.
23. To examine such contention plaint was examined. It appears that the plaintiff has claimed damages on various heads of accounts as detailed in para.26 of the plaint. Under head number one, damages are claimed on account of (i) Off shore cleaning, (ii) Beach cleaning, (iii) Removal of polluted sediments and other material from back water, (iv) Disposal of dredging spoil and lastly
(v) Damages to marine structure, cleaning and repair of marine structure of the port and removal of polluted stone pitching. Under last sub-head a sum of Rs.500 million has been claimed.
24. As held above, the master of the vessel is jointly and severally liable for any damage caused to the property and servants of the Port or any other vessel within the port limits or its approaches. There can be no dispute as regards the claim of damages contained in the last sub-head (v) reproduced above, is squarely covered by clause (a) of section 89 ibid. As regards claim as against other sub-heads (i) to (iv) are concerned same are subject to detailed examination, before it could conclusively be held to be damages caused to the property of the Port. Claim under the sub-head (v) is Rs.500 million. Amount that has been realized by the official assignee from the sale of shipwreck is only Rs.100 million. Therefore, contention of Mr. Naeem, that Rs.100 million could be set off against the claim of damages cannot be sustained, as the amount realized is far below than the claim of damages even under the last mentioned head.
25. In view of the foregoing legal position Master is proper and necessary party for determination of the controversy in suit. He cannot be exonerated from the statutory liability created under section 89 of the Act.
26. Under circumstances, the application is dismissed. Defendant No.5 is however, granted eight weeks time as requested for filing' the written statement. Application stands disposed off.