1. MUSHIR ALAM, J.---Plaintiff, through defendant No.4 Messrs NYK, shipped three consignments comprised of 238 bales, 148 bales, and 194 bales respectively on board the vessel M.V. Asian Pollux, the defendant No.1, Hyundai Sprinter the defendant No.2, and Hyundai Highway, the defendant No.3 to be discharged and delivered at the Port of Bangkok, Thailand.
2. Plaintiff claims that the defendant No.4 is the owner of the vessels named above. The defendant No.5 James Finlay Ltd. Being their agent issued three bills of lading dated 15th July, 2003, 7th August, 2003 and 14th August, 2003 respectively. The defendant No.6 the consignee for its own reasons refused to take the delivery of the consignment, thus shipping documents were never transmitted to the consignee. The ownership of the goods remained with the plaintiff. Negotiation with subsequent buyer also failed, therefore, the plaintiff through defendant No.5 conveyed the defendant No.4 to arrange the re-export the goods back to Pakistan.It is the case of the plaintiff that the defendant No.6, the agent for the owner/vessel, through e-mail dated 8-5-2003 informed the status of the consignment. However, through another e-mail informed about the storage charges of US$ 25,000 plaintiff instructed the defendant No.4 to re-export the consignment back to Pakistan through e-mail dated 16-6-2004 and in reply the defendant No.4 informed that they are working on charges for re-export.
3. It however, appears that the goods were auctioned by the Thai Customs Authorities. Plaintiff claimed that they were never informed regarding auction of the consignment by the Thai Customs.
4. Plaintiff on their own learnt that the Bangkok Custom Office issued a Notice dated 18-5-2004 to the Manger of the defendant No.4 for securing guarantee within 15 days otherwise the goods would be auctioned, which information, it is the case of the plaintiff, was never conveyed to them. The goods were auctioned on 30-6-2004, it was urged that if at all this is the date to reckon the limitation, when it became known that the defendant failed to deliver the goods. It is further the ctse of the plaintiff that the defendants 1, 4 and 5 neglected in discharge of its obligations and duties firstly defendant committed breach of contract to re-export the consignment back to Pakistan; secondly concealed material information and facts that led to the auction of the consignment, thereby causing loss to the plaintiff. Contesting defendants in rebuttal denied any liability under the contract of affreightment. It was urged, that on discharge of the cargo at the Thai Port, the contract of affreightment stood accomplished. It was denied that any concluded contract to re-ship the subject consignment back to Pakistan was ever made. Defendant No.4 asserted that they are neither the owner as to the majority shares in any of the vessels, nor the charterer as claimed by the plaintiff. It was the case of the defendant No.4 that, they are merely the 'slot charterer' and as such not liable to the plaintiff for action in rem. Contesting defendants seriously raised the plea of limitation and bar of jurisdiction. In the given backdrop and in the order of priority I would like to take up C.M.A. 2270 of 2004 under Order VII, rule 11, C.P.C., premised on the ground inter alia firstly that, the admiralty suit is barred by time and also under the provisions of sections 4 and 5 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980. Secondly, the action in rem against the vessels and action in personam against the defendants Nos.4, 5 and 6 have been improperly joined in the one and same suit. Thirdly, no cause of action accrued against the defendant No.4.
5. Adverting to the first objection as to limitation, it was contended by Mr. Naeem Ahmed learned counsel for the defendants that the cargo was discharged on 29-7-2003, 16-8-2003 and 23-8- 2003 at the port of discharge, suit has been filed on 9-10-2004. According to him, the limitation is one year from the date of discharge therefore, the suit on the face of it is barred by time. In support of his contention, he has relied upon Article III, Clause-6 para-3 of Carriage of Goods by Sea Act 1925 (hereinafter abbreviated as COGSA), It was urged that the limitation would run from the day when the cargo was discharged. It was further urged that delivery of the cargo to the port trust, is as good as delivery to the person entitled to receive the cargo may it be consignee, assignee or the owner of the goods as the case may be. Mr. Naeem further contends that similar period of limitation is provided under Article 31 of Limitation Act. He prayed for the rejection of plaint on this ground alone As against this Mr. Mujahid learned counsel for the plaintiff, while refuting the contention raised urged that the limitation in case of affreightment commence from the date of failure to deliver the cargo and not merely from the date of alleged discharge. He further urged that the suit is not founded merely on the ground of failure to deliver the subject cargo alone but also on the ground that the defendant committed breach of a contract for re-shipment of the subject consignment back to Pakistan. He has referred to pages 63, 67, 69, 70, 73 and 77 and took me through various correspondences through e-mail and fax, constituting concluded contract of affreightment, which was breached. The defendants failed to reexport the subject consignment back to Pakistan therefore, liable for the loss that has occasioned on account of auction by the Customs Authorities at Bangkok and such damages could be recovered within one year and compensation for non-delivery or delay in delivering the goods. Limitation of one year would run when the goods ought to be delivered. In the instant case, according to Mr. Mujahid, the goods were neither delivered at the port of discharge nor, re- exported to Pakistan; it is a continuing wrong, therefore, the limitation has not yet begun to run. Mr. Shaiq Usmani learned amicus curiae contended that in the instant suit there are three different causes of action as the consignments were contracted to be carried under three bills of lading through three different vessels the defendants Nos. 1, 2 and 3 on different dates. According to him the present case is governed under the COGSA, which lays the responsibility on the carrier to deliver the cargo to the rightful person, and unless it is shown that the cargo was delivered to the rightful person the liability is not discharged, he further urged that the carrier includes charterer. In support of his contention reliance is placed on Abdul Jalil Chowdhury v. Muhammadi Steamship Co. PLD 1961 SC 340; British India Steam Navigation Co. v. Abdul Razzak-Abdul Kadir PLD 1967 SC 68 and Dutsche Dampschiffaharts-Gesellschaft PLD 1975 Kar.
819. He is of the view that clause-6 of Article III of the Carriage of Goods by Sea Act, 1925 (COGSA) would be attracted. Mr. Usmani is also of the view that the limitation in instant case would run with effect from 29-6-2004 when the plaintiff was informed that the customs authority have taken a decision to auction the subject consignment, therefore, the suit is within time. As noted above, plaintiff booked three different consignments, through defendant No.4, on three different vessels, the defendants Nos.1, 2 and 3 and three different Bills of Ladings were issued. In order to appreciate contentions of all the learned counsel Article III clause-6 para-3 of Carriage of Goods by Sea Act 1925 (COGSA) governing limitation may be reproduced, which runs as follows:-- "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." (Underlined and bold to add emphasis). to answer objection as to limitation on above referred provision I could no better than refer to the interpretation placed by Justice B.Z. Kaikaus, on the referred provision, speaking for the Full Bench in the leading case on the subject Abdul Jalil Chowdhury v. Muhammadi Steamship Co. PLD 1961 SC 340 at page 344 it was observed as follows:-- "In accordance with this clause, a suit is to be filed within a year of the "date when the goods should have been delivered". These words obviously have reference to the time when it was the obligation of the carrier, in accordance with the terms of the contract to deliver the goods, and this time has to be determined in accordance with the provisions of the Contract Act. A contract for A the carriage of goods being only a contract is subject to provisions of the Contract Act except to which there may exist, some special provision. In accordance with the Contract Act, every contract has to be performed on the date, which has been agreed by the parties and in the absence of such a date within a reasonable time. In the case of carriage of goods by sea, if there be in the contract a date fixed for delivery, that would be the terminus a qua for limitation. If on the other hand, there is no date fixed reasonable time would have to be ascertained, and that would depend upon particular circumstances of a case. However, the matter does not end there. The time for performance of a contract is liable to be extended by the promise as provided in section 63 of the Contract Act, section 63 runs:-- "Every promise may dispense with or remit wholly or in part the performance of the promisee made to him, or may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit".
6. This section does not say that the consent of the promisor is also needed for extension, but that is obviously essential for if the promisor was not prepared to give the performance at all any extension would be meaning less. However, the consent need not be expressed and may be implied. Similarly, the extension by the promisee too may be only implied. The section will apply to a case where there is originally a date fixed for performance as also to a case where no date has been fixed and A the contract is to be performed within a reasonable time. Therefore, in all cases of carriage of goods by sea the terminus a qua for limitation will be effected if the promisee agrees to have performance at a date later than that originally fixed or later than that which constitute a reasonable time. At the same time, it not even not necessary that this extension of time by the promisee should take place before the expiry of the date on which the contract was to be performed. For the utmost that could be urged in a case where there is extension after the expiry of the original period would be that that there was a fresh agreement rather than an extension and a fresh agreement for delivery would have no less effect than extension. If such fresh agreement be valid and binding it would give rise to a fresh cause of action and there would be a fresh terminus a qua for limitation when the carrier failed to perform the fresh agreement. There is no law, which forbid fresh agreement as to time of performance in case of carriage of goods by sea and therefore, such an agreement would be binding and would constitute a new basis for calculation of period of limitation. Principles enunciated above were reiterated in Central Insurance Co. Ltd. v.
7. Chitagong Steamship Corporation Ltd. PLD 1963 SC 633.
8. Examining the case in hand, admittedly the bills of lading in original were with the plaintiff as the contract with the named consignee was rescinded. Cargo was never delivered it was in the defendant's warehouse.
9. Correspondence, email has come on record as late as up to June 28, 2004, which shows that the delivery was not made and amidst re-shipment negotiations the Notice of auction was issued dated 18-3-2004, yet the defendants did not inform the plaintiff of the auction proceedings. The goods were eventually auctioned on 30-6-2004, (page 125 of the file), which fact the plaintiff learnt later. On 2nd July, 2004 the defendant No.6 informed the auction of the goods (page 83 of the file).
10. There is force in the contention of learned counsel for the plaintiff that the defendant until last minute continued to represent that they are making arrangement and efforts to re-export the goods to Pakistan. There is allegation of fraud, committed by the one of the employees of the consignee, who, it is alleged was mixed up with the auction purchase of the subject goods.
11. Therefore, prima fade, at the best, date of auction could be taken as reckoning date to compute limitation of one year on which date the defendant could be said to have failed to deliver. Another aspect of the case as vehemently urged and pleaded was that there was a fresh contract of carriage and the defendants were arranging for re-shipment, when the goods were auctioned. The suit is also founded on the ground of breach of contract for affreightment, correspondence placed on record prima fade, tend to support the contentions of the plaintiff, in the light of above discussion, if not express, implied contract is clearly in sight. Suit was filed on 9-10-2004; suit is prima facie within time. Adverting to another contention that the admiralty claim is not maintainable as the defendant No.4 is neither the owner nor charter of the vessel. It is however, not disputed that the defendant No.4 claimed to slot charter. Learned counsel for the plaintiff has relied upon case from the English jurisdiction-Mediterranean Shipping Company SA v. Owners of Ship "TYCHI" [1999] EWCA CIV 1150 = (1999) 2, Lloyd's Report 11. To urge that, slot charter is included in the definition of charterer. Mr. Muhammad Naeem, initially disputed such position, latter conceded. In Tychi case (supra) The Court of appeal held that slot charter comes within the ambit of charterer as used in section 21 of the Supreme Court Act 1981 though the word used was charter by demise it was held as follows:-- "Mr. Kendrick submits that in the light of reasoning The Span Terza and Laemthong, there is no reason to construe the word "charterer" as if it meant demise charterer. If the draftsman had meant to confine the expression "charterer" to one type of charterer; namely the demise charterer, there is no reason why he should not have done so.
12. Charterers have for many years ordinarily included demise charterers, time charterers and voyage charterers, among others. Whether or not the expression "charterer" includes slot charterer, it naturally includes a time charterer or voyage charterer. I accept that submission."
13. It was further held "In all circumstances I would hold that the expression the charterer of the ship can include a slot charter and that a slot charter can properly be described as the charterer of the ship."
14. In instant case the admiralty jurisdiction under section 4 of the "Admiralty Jurisdiction of the High Courts Ordinance, 1980" could be invoked by action in rem, against the offending ship or against the sister ship. Claim in personam lies where the person who would be liable on the claim was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, subsection (4) it is provided as follows:-- "(4) In the case of any such claim as is mentioned in clauses (e) to (h) and (j) 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 maritime lien on the ship or not be invoked by an action in rem against:---
(a) that ship, if at that time when the action is brought it is beneficially owned as respects- majority shares therein by that person.
15. (b any other ship, which at the relevant time when the action is brought is beneficially owned as aforesaid. Term charter has varied shades of meaning, term charterer includes voyage charterer, time charterer, sub-charterer, demise charterer, there is no reason why the slot charterer be excluded. In subsection (4) referred to above, words used are 'when a person who would be liable on the claim in action in personam was when the cause of action arose the owner or charterer of or in possession and control of the ship. The word charterer is not qualified, unlike English Act therefore, no restricted meaning could be assigned to it. The term charterer clearly includes slot charterer, A slot charterer is liable for all the consequences for the contract of carriage of goods as any charterer could be. What slot charter actually means? Slot charter is in fact lease or hire of a space or cell on board of a vessel, for storage of goods and cargo. Through slot charter, the owner or the charterer lets out or sublets and allocates space/cell or more popularly known as a slot on board a vessel to more than one sub-charterer. It is defined in "A-Z Dictionary of Export, Trade and Shipping Terms, (http: /www. Exportbureau. Com) as follows: -- Slot charter A voyage charter whereby the shipowner agrees to place a certain number of container slots (TEU and / or EFU) at the charterer's disposal. Similar meaning is quoted in the "Maritime and Shipping Dictionary, 2006 Edition, by AGA Faquir Muhammad at page 547.
16. Thus, no doubt is left in mind that slot charter cannot escape the liability to answer the claim in rem against the very offending vessel or against any other ship which at the time when the action is brought is either under charterer's ownership or is a sister ship. The jurisdiction in rem is invoked, against offending vessel, when one proceeds in rem, the purpose is to draw out the owner or charterer, or any person who claims to be interested or in possession or in control of the offending vessel. In such event, the person having any interest in the offending vessel has two options either to come out and defend the entire claim or abstain. However, if such person chooses to abstain, then the liability is limited to the extent to the vessel otherwise not. The position in English and in Pakistan law is different. In English law action in rem and personam cannot be clubbed together. In Ahmed Investment Ltd. v. Sunrise IV PLD 1980 Kar. 229, in the context of section 35, of the Admiralty Court Act, as then applicable, held that the admiralty jurisdiction is exercisable in rem as well as in personam. Such position was affirmed in Bangladesh Shipping Corporation v. Nedon PLD Kar. 246 and finally in the case of Yukong Ltd. South Korea Co. v. M.T. Eastern Navigation PLD 2001 SC 57 our Supreme Court has finally endorsed the above position and objection as to joinder of owners in action in rem against the vessel was repelled by the Supreme Court. As noted in the cited cases in Pakistan, position on the subject is settled, any discussion would be nothing but an attempt to reinvent the wheel. In the light of above objection as to joinder of vessels as well as the owner/charterer raised by the learned counsel for the contesting defendant is not sustainable.
17. C.M.A. No.2270 of 2004 under Order VII, rule 11, C.P.C. Is dismissed.
18. C.M.A. No.215 of 2005 under Order I Rule, 10 C.P.C. And Order VI, Rule 17, C.P.C. Seeks joinder of vessel "Nord Strand", "Sinar Bintan", "Young Liberty". It is claimed that the first mentioned vessel is owned, operated and controlled by he defendant No.4, being sister ship, therefore, liable to be arrested. As regards second and third named vessels, it is alleged that said vessel in fact were used for transshipment of, the consignments Nos.1, 2 and 3 respectively. In my opinion, under the contract of affreightment, transshipment was permissible therefore, proposed vessel at serial Nos.2 and 3 cannot be held liable for the mischief, if any of the defendant No.4. However, since it is alleged that the proposed vessel at serial No.1 is beneficially owned, operated and chartered by the defendant No.4, therefore could be joined as sister ship of offending vessel i.e. Defendant No.
1. The application to the extent of "Nord Strand" is granted let the amended title be filed.
19. C.M.As. Nos.2233 and 2269 of 2004 both under rule 731 of the Sindh Chief Court Rules (O.S) seeking arrest of Vessel "Hyundai Sprinter" and "Hundai Highway", the defendants Nos.2 and 3 vessels respectively. There is no dispute that the defendants Nos.2 and 3 were under slot charter of the defendant No.4. As held above the slot charter is equally liable as a charterer. Accordingly, I have no hesitation to confirm the order of arrest made on 3-11-2004 and 10-11-2004 respectively. C.M.A.
20. No.2293 of 2004 under rule 731 of the Sindh Chief Court Rules (O.S) seeking arrest of vessel "Nord Strand". It was contended that the defendant No.1 vessel, Asian Pollex, one of the offending vessel, is not entering into waters of Pakistan and is avoiding service. It is urged that the "Nord Strand" is beneficially and or otherwise owned and operated by the defendant No.4 and is otherwise sister ship is liable to answer the claim of damages for breach of contract of affreightment. Defendant No.5 has denied that the Nord Strand is sister ship of the defendant No.1 vessel. It is however, claimed that subject vessel is under time charter of a subsidiary company of which the defendant No.4 is the principal share holder. Plaintiffs have placed on record relevant extract of the Register of Ships for the year 2004-2005 showing the claim of ownership of defendant No.5. It was asserted that merely placing name of the vessel in Morad Shipping News will not make the subject vessel liable to answer the claim against the defendant No.4 and or defendant No. 1.
21. Since it is only the vessel namely "Nord Strand" is shown to be owned by the defendant No.4 and in terms of Ordinance 1980 claim of sister ship is maintainable to the extent of vessel Nord Strand.
22. Nothing was brought on record to show connection of the defendant No.4 with the other vessels, therefore, no order is being made against them. It will however, be open to the plaintiff to establish connection, interest of the defendant No.4 with the subject vessels at trial. In such event, the defendant No.4 will otherwise be liable in personam. Prima facie, plaintiff has been able to show that the defendant No.4 has interest or presently in control of the subject vessel. Accordingly, order dated 13-11-2004 is confirmed. However, at trial the parties would be at liberty to establish conclusively their respective stance. C.M.A. 2293 of 2004, stands disposed off. Through C.M.A. No.103 of 2005 under section 151, C.P.C. Defendant No.4 seeks directions against the plaintiff to effect service on defendant No.1 directly. It was contended by the learned counsel for the defendant No.4 that they are not the owner of the vessel therefore, they cannot take the service and be answerable for the vessel. It may be observed that through C.M.A. 2293 of 2004 vessel Nord Strand, has been arrested being sister ship for the defendant No.1 and also added as a party (C.M.A. 215 of 2004), and even otherwise the defendant No.4 are sued in personam, are already contesting the claim being slot charterer. Under circumstances, let the notice be served on the defendant through substituted mode by way of publication. C.M.A. No.172 of 2005 under Rule 743 Sindh Chief Court Rules (OS), moved by the defendant No.4 seeking directions against the plaintiff to furnish security to satisfy the counter-claim of the defendants for the loss and alleged wrongful arrest of the vessels defendants Nos.2 and 3 and Nord Strand. It was stated by the learned counsel Mr. Naeem that defendants have been burdened with surety for the ill founded claim of the plaintiff. It is stated that the defendants have legitimate claim for damages in the sum of US $ 712,796 as detailed in the counter-claim. It is urged that unless the plaintiff is also put to terms, defendants shall be seriously prejudiced. In contra, learned counsel for the plaintiff contended that the defendants vessels were rightly arrested, defendant No.4 if not the owner has admitted to be the slot charterer and is principally liable in personam. It is true that for wrongful arrest damages could be claimed. Is also true that the plaintiffs are based in Pakistan and have assets and property in Pakistan. There, is no allegation against the plaintiff that they intend or disposing off any assets or property. In absence of such allegation, no attachment could be made. However, interest of the defendant as raised in the counter claim, could be sufficiently secured by directing the plaintiff to file list of assets and property in Pakistan. Any time defendant makes a ground for attachment appropriate order may always be obtained. Let such list be filed before the next date.
23. Application disposed of.