' The plaintiff, who was a member of the crew on board the defendant vessel, m. v. PHOENIX, has filed this suit in Admiralty Jurisdiction for the recovery of his wages etc.
2. The case of the plaintiff is that he was employed as a fireman on the vessel at Mumbasa on 24- 9-76, on a monthly salary of 110, as per agreement dated 24-9-1976. The vessel arrived at Karachi on 15-11-1976, when, as a result of some dispute the same could not leave the port. He was not paid any wages and was asked by the master of the vessel to remain on board to watch the cargo and he was assured by the master and also by Captain Zourdos, on behalf of the owners, that he will be fully paid the arrears of wages and other entitlements. He continued in service under great mental stress and abject poverty and was neither paid any wages nor was provided any food and other facilities. An agreement was arrived at between the master of the vessel and the crew members, including the plaintiff, that they would be paid Rs, 60, per day and would cook their meals themselves on the ship. However, as proper subsistence allowance was not paid, the Plaintiff resigned on 31-5-1977. The master of the vessel and Captain Zourdos, who were not able to pay his dues and needed the services of fireman, asked him to work until he was paid his full wages. He was paid subsistence allowance up to 10-1-1978, when the same was stopped without assigning any reason by the owner. The plaintiff made representations to the owner and various other authorities in yin. He remained on board up to 16-3-1978, when he was compelled to leave the vessel due to starvation and unbearable conditions.
' The plaintiff has claimed arrears of wages as due on 24-6-1977 and wages @ .110, per month from 25-6-1977 to 22-7-1978 in all amounting to Rs, 44,360. In addition he has claimed subsistance allowance at the rate of Rs, 0, per day from 11-1-1978 to 22-7-1978, amounting to Rs, 11,400, less Rs, 720, already received, leaving a balance of Rs, 10,680. He has also claimed lodging allowance at the rate of Rs, 60, per day from 15-3-1978 to 22-7-1978, amounting to Rs, 7,720. He has further claimed Rs, 6,600, on account of leave entitlement, Rs, 2,000, on account of bonus and Rs, 4,900, on account of passage money. The total amount thus claimed is Rs, 76,260, with interest on 12% and future wages, subsistence, boarding and lodging allowances etc. From the date of the suit till payment and also the costs of the suit.
3. Captain Zourdos, Managing Director of the Ship Owner Company, filed written-statement refuting the plaintiff's claim. It was alleged that the plaintiff and other crew members had entered into an agreement on 23-12-1976, with Messrs International Shipping Agency, which firm purported to act as Agents of the vessel. According to such agreement, the crew members were to permit the work of loading of the vessel for 2/4 weeks and were to be paid their salary and repatriation expenses from the freight earnings. The employment agreement dated 24-9-1976 was not denied but it was alleged that nothing was payable to the plaintiff on account of salary. It was pleaded that the vessel was rendered unseaworthy and a deed ship and the voyage was cancelled.
However, the plaintiff and another fireman, by the name Jama, had elected to stay on board and agreed to work as watchman on consolidated emoluments of Rs, 60, per day, which included salary food and other expenses. It was denied that the plaintiff was to be paid subsistence allowance at the rate of Rs, 60, per day, as alleged. Such wages were allegedly paid to the plaintiff up to middle of February, 1978, although plaintiff had left the vessel by the end of January, having secured a job elsewhere.
' On the basis of the above pleadings the following consent issues were framed:-
(1) Whether the employment agreement of the plaintiff with the owner of defendant stood terminated and the plaintiff signed off/or paid off, if so from which date and what is its effects?
(2) Whether this Hon'ble Court has no jurisdiction to entertain the suit ?
(3) Whether the suit is not maintainable?
(4) Whether the plaintiff was duly paid his wages till the middle of February, 1978?
(5) Whether the daily payment of Rs, 60, made to the plaintiff upto 10-1-1978 was not by way of subsistence allowance?
(6) Whether the balance due Wages Account (Annex. "D") is a collusive and false document?
(7) To what claim is the plaintiff entitled?
(8) Relief?
4. The plaintiff examined himself and produced two witnesses. Captain Zourdos and one witness was examined on behalf of the defendants. Issues Nos, 2 and 3 were dropped by the learned counsel for the defendants and the remaining issues are discussed hereunder:- ' Issue No, 1:
5. According to the written-statement the employment agreement was abandoned and rendered inoperative as a result of an alleged agreement dated 23-12-1978, which was arrived at between the plaintiff and other members of the crew with Messrs International Shipping Agency. The other plea set up was that the agreement stood terminated because the ship had become unseaworthy and a dead vessel. Captain Zourdos set up yet another plea in his statement that the crew members on the vessel were signed off by Captain Kazi of National Shipping Agency at the request of the crew on 24-1-1977 and the captain incharge had finalized the wages account. He, further stated that the plaintiff had lost his pay account slip and was kept by him on board out of the sympathy because he had no place to go and was employed as a watchmen on daily wages at Rs,
60. He alleged that such wages were also paid to the plaintiff up at 18-1-1978. The plaintiff had since then left the vessel and secured a job with one TROVEL BEL.
' The burden of proving this issue lay with the defendant. The defendant did not produce the alleged agreement dated 23-12-1976, which was purported to have been entered into between the members of the crew and International Shipping Agency, nor anyone on behalf of the said Agency was examined to prove the same. Likewise it was also not proved that the crew members were signed off by Captain Kazi, on 24-1-1977. In the written-statement the defendant specifically made reference to International Shipping Agency as purported Agents of the vessel. If the said company did not act as Agents on behalf of the defendant, it follows that it was not open to the defendant to stand by their action. In any case, no evidence was brought to prove any agreement or arrangement as alleged and, therefore, the termination of the agreement on such account is not proved, In the result it must be held that the plaintiff continued to serve in terms of the employment agreement B for the entire duration of one year as provided thereunder i, e. Up to 23-9-1977. The defendant also failed to prove that the plaintiff was paid off so as to have ceased to have any claim under the agreement. The allegations hat the ship was rendered unseaworthy and dead were also not proved. The issue is, therefore, decided in the negative.
' Issues Nos, 4 and 5:
6. Issues Nos, 4 and 5 are connected and are taken up together.
' According to Captain Zourdos, the plaintiff was paid Rs, 60, per day on account of wages as a watchman on the vessel, having been engaged for the said purpose after 24-1-1977. The defendant has admitted such payment up to 10-1-1978, but it is alleged that such payment was on account of subsistance allowance in addition to the monthly salary of 110, which was payable to him under the agreement. The defendant's evidence in this connection comprises of the statement of Captain Zourdos and one Aslam Jaffery, Manager of Pioneer Shipping Agency Limited. The defendant did not produce any account book or receipts for payments made to the plaintiff. Aslam Jaffery, D. W. 1, admitted that the agreement with regard to payment of wages had been arrived at before his joining of service with 'Pioneer Shipping Agency. He admitted that no payments were made by him to the plaintiff as wages and actually he used to pay money to Captain Zourdos, who signed recepts for the same and made disbursements to crew members himself. His allegation that the payment of Rs, 60, per day was made to the plaintiff on account of wages was based on hearsay.
As against this, the plaintiff has produced oral as well as documentary evidence in support of his claim that the amount of Rs, 60, was paid to him on account of subsistence allowance. He summoned and examined Abdul Jabbar, Principal Officer of Mercantile Marine Department, and the latter produced certain letters and correspondence. He had received complaint from two of the crew members on board to intervene in the matter as they were going hungry and were not provided with any facility. According to him, he sent for Pioneer Shipping Agency, who were the local agents for the defendant vessel, and it was agreed that a sum of Rs, 60, per day per head was to be paid to said crew members as allowances and other facilities. He further deposed that the amount of Rs, 60, was not to be counted towards their wages. He had written a letter dated 2-7- 1971 to the Pioneer Shipping Agency Exh. 6/3 asking them to pay subsistance allowances "at the rate of Rs, 60, per day as previously promised" to the plaintiff. The master of the vessel had replied to the said letter on 4-7-1977, as per Exh. 6/1, in which it was admitted by him that the plaintiff was paid Rs, 300, for 5 days on account of victualling expenses. The master also stated that further payment could not be made because he was unable to locate the plaintiff. According to Exh. 6/6 and 6/7, dated 246-1977 and 2-1-1978, Mr. Abdul Jabbar had informed the Vice Counsul British Consultate General, Karachi that on his instructions the plaintiff was being paid Rs, 60, per day as subsistence allowance by Pioneer Shipping Agency Limited. The Manager of the Pioneer Shipping Agency, D. W. 1 admitted that the was called by Captain Jabbar and was asked to make payment to the plaintiff and Jama. He produced a receipt for payment of Rs, 500, to the plaintiff according to which the amount was paid on account of victualling expenses only for crew and the master. It thus stands proved that the amount of Rs, 60, per day was paid to the plaintiff on account of subsistence allowance to cover for food etc. And the same had nothing to do with regard to his claim for salary in terms of the agreement of employment.
' According to plaintiff he was paid Rs, 60, up to 10-1-1978 while according to the defendant such amount was paid till the middle of February, 1978. The plaintiff stated that he had issued receipts for all the payments which were made to him and it stands to reason, that in the context of strained relationship between the parties, it was unlikely that any payment could have been made on behalf of the defendant without obtaining any receipt from the plaintiff. Such evidence was kept back on behalf of the defendant, and even no account was produced. Accordingly the statement of the plaintiff that he was paid Rs, 60, per day up to 10-1-1978 has gone unrebutted and must be accepted. The issues are decided accordingly.
' Issue No, 6: ' The original of Exh. D was produced as Exh. 5/2 and the plaintiff stated that the same was prepared by Captain Dimitrios. The full name of the said Capt. Transpired to be Captain Dimitrios A.
Vougiouklis. It was alleged by Capt. Zourdos that the said document was forged and was prepared by the plaintiff on the stolen stationery from his Cabin. He further alleged that the plaintiff had also stolen his Revolver but in the same breath he stated that he did not file any complaint because no one listened to him. The initials of Capt. Dimitrios A. Vougiouklis on 5/5 and his signatures on Exh.
6/1 and 672 were not disputed. The plaintiff had also summoned the Log Book of the vessel for the comparison of the signatures. I compared the signatures on Exh. 5/2 with the signatures appearing on Exh. 6/1 and 6/2 and I have no doubt in my mind that the same are of one and the same person, namely Capt. Dimitrios A. Vougiouklis. The defendant did not adduce any evidence to prove that the said document was collusive. In the circumstances, the issue is decided in the negative.
' Issues Nos, 7 & 8: ' The plaintiff's claim is based on his salary account as per Exh. 5/3 and 5/2 dated 24-1-77 and 24- 6-77 respectively. Exh. 5/3 was not disputed and Exh. 5/2 has been held to be a genuine document as per discussion under Issue No,
6. Exh. 5/3 shows arrears of salary up to 24-1-77 as E.
788.85 and the plaintiff is entitled to the same accordingly. The cancellation of the service agreement was not proved on behalf of the defendant. No issue was framed with regard to the vessel having been rendered unseaworthy and the plea set up in his behalf needs no examination.
In the result it is held that the plaintiff is entitled to his salary for the unexpired period of the service agreement. As the salary account as per Exh. 5/2 was finalized up to 24-6-77, the plaintiff is entitled to salary from 25-6-77 to 23-9-77 at the agreed rate of E. 110, per month.
' The plaintiff's claim for future salary after the expiry of the contract period is based on 5/5. Capt.
Zourdos admitted that this certificate was signed by the Master of the vessel but he was not informed about the same. He further alleged that at the relevant time there existed some dispute between him and the Master of the vessel. No evicence was produced to support these allegations.
However, the question still arises whether the Master of the vessel could have extended the service agreement by issuing the certificate in terms of Exh. 5/5. The service agreement Exh. 5/1 was entered into between the Ship-owner Co. And the plaintiff and it was specifically "concluded for a period of a year." The certificate Exh. 5/5 shows that it was issued by the Capt. Under his own authority. Capt. Zourdos was present in Karachi when the certificate was issued and, therefore, it is not possible to hold that the Master of the vessel had any authority to extend the service contract on the same terms and conditions. The plaintiff has not provided any other basis for the calculation of his wages or salary after 23-9-1977. The situation is unfortunate but it cannot be helped. The plaintiff could not prove his claim as per Items C, D and E set out in the plaint. The learned counsel for the defendant conceded that the plaintiff was entitled to repatriation charges claimed at Rs, 4,900. It has been proved that the plaintiff was paid subsistence allowance at the rate of Rs, 60, per day up to 10-1-78 and he had left the vessel on 16-3-78. He is not entitled to any susistence allowance after 16-3-78 when he had left the vessel not such claim-is sustainable on any legal ground. He is therefore entitled to subsistence allowance from 11-1-78 to 15-3-78 only.
' The upshot of the above discussion is that the plaintiff is entitled to a decree as under:- {{TABLE}} ks. Balance of wages due as on 24-6-77. ... 15,760 Salary at . 110, p. m. From 25-6-77 to 23-9-77 (appz. 3 monts) ... 6,600 Subsistence allowance at the rate of Rs, 60, per day from 11-1-78 to 15-3-78 3,840 Repatriation charges ...
4.900 Total: Rs, 31,100 {{TABLE}} ' The suit is decreed for Rs, 31,100, with interest at 13% per annum from the dates of the institution of the suit till payment with costs, and the vessel is ordered to be sold for the satisfaction of the decree.