1. FAISAL ARAB, J---This judgment disposes of six suits that were filed under the Admiralty jurisdiction of this Court. In all these six suits, the plaintiffs have raised their respective claims against the ship "M.V. Salaj" which was arrested and then sold through Official Assignee on 12-1- 2000 for a sum of Rs.17,700,786.00. The buyer paid the entire sale consideration to the Official assignee on 25-1-2000 and took delivery of the ship on 1-2-2000. The sale proceeds of the ship were then invested by Official Assignee in profit bearing government securities till such time the claims in the six suits an finally decided. Suit No.1254 of 1997 (Tramp Oil Marine Ltd. v. M.V. Salaj) is for a claim of US $ 22,535.72 for the price of bunkers supplied to the ship. Suit No.1292 of 1997 (Haji Muhammad Yunus v. M.V. Salaj) is for recovery of Rs.3,344,890 on account of damage said to have been caused to the consignment of sugar during its discharge from the ship. Suit No.1293 of 1997 (Reliance Exports Ltd. v. M.V. Salaj) is for recovery of Rs.4,012,990 also on account of damage said to have been caused to the consignment of sugar during its discharge from the ship. Suit No.14 of 1998 (Bourbon Maritime (Pvt.) Ltd. v. M.V. Salaj and others) is for a claim of Rs.14,694,821 for the cost of bunkers and others provisions supplied to the ship by its agent. Suit No.35 of 1999 (Messrs Shipshape (Pvt.) Ltd. v. M.V. Salaj and others) is for recovery of Rs.2,907,848.70. In this suit, the plaintiff as protecting agent was entrusted with the responsibility of supplying provisions, fresh water and bunkers to the ship as well as for paying salaries to the ship's crew and arranging their repatriation to their respective countries. Suit No.7 of 2000 (Port Qasim Authority v. Official Assignee of Karachi) was filed by port authorities towards its claim of port dues and charges to the tune of Rs.19,512,422.00.
2. Mr. Arif Khan, learned counsel for the Port Qasim Authority at the very outset submitted that under the Admiralty Jurisdiction of this Court, the claim for port dues and charges is to be given preference over all other claims and since the claim of Port Qasim Authority is for Rs.19,512,422.00 which is more than the amount realized from the sale of the ship, nothing would be left for distribution to the other claimants even if they establish their respective claims against the ship and the entire recovered amount would go to Port Qasim Authority.
3. On the other hand Mr. Khalid Rehaman, learned counsel for plaintiff in Suit No.1254 of 1997 has raised following objections to the Port Qasim Authority's plea of preferential treatment to its claim:- -
(a) The suit filed by the Port Qasim Authority was not for the arrest of the ship and therefore its suit cannot be treated as a suit filed under Admiralty Jurisdiction of this Court. Hence Port Qasim Authority's claim does not enjoy any priority over the claims of other claimant.
(b) Port Qasim Authority's claim is not covered by any of the clauses of section 3(2) of the Admiralty Jurisdiction of High Court Ordinance, 1980.
(c) Port Qasim being statutory authority under Port Qasim Authority Act, 1973, is provided alternate remedy of filing a suit under section 23 of the Port Qasim Authority Act, 1973 and having left with such remedy, any decree that is passed in this suit is to be treated as an ordinary decree enjoying no priority over other claims.
(d) Under Sale "B" of S.R.O. No.04(KE)/2005, dated 12th May, 2005 mooring charges are to be charged at the rate of US $ 0.04 per GRT per day whereas Port Qasim Authority has charged mooring charges at the rate of US $ 0.08 per day and therefore its claim towards mooring charges is to be reduced by 50%.
(e) The vessel was sold on 12-1-2000 and therefore, port dues or other charges after the said date are to be borne by the new purchaser yet Port Qasim has claimed mooring charges for 457 days i.e. From 1-11-1998 to 31-1-2000. Therefore, mooring charges from 12-1-2000 onwards are liable to be recovered from new purchaser of the ship.
4. (0 The Port Qasim Authority has not provided details of expenses of Rs.487,578.000 which it allocated to cover extra charges or contingencies and therefore- this amount is also to be deleted from its claim. All the counsel for the claimants in Suits Nos. 1292 of 1997, 1293 of 1997, 14 of 1998 and 35 of 1999 have adopted the above referred objections raised by Mr. Khalid Rehman Advocate. I shall therefore take up Suit No.7 of 2000 first. It is to be first examined whether Port Qasim Authority's claim is entitled to any preferential treatment under the Admiralty Jurisdiction when admittedly the Port Qasim Authority in its suit has not sought arrest of the ship. Mr. Khalid Rehman, Advocate argued that in order to bring Port Qasim's suit under the Admiralty Jurisdiction of this court, it was necessary that Port Qasim should have sought arrest of the ship. The learned counsel maintained that as such relief has not been sought, it lost its right to claim priority over other claims, if at all such right was available to it. He therefore, submitted that this Court may not give preferential treatment to Port Qasim's claim over the claims raised by the other claimants who are seeking recovery of money for supply of bunkers, necessaries, crew salaries, compensation and damage caused to the cargo, all of which come under the Admiralty jurisdiction of this Court.
5. When an action in rem is resorted to under the Admiralty Jurisdiction of this Court, it is in fact an action against property or ship and in case the plaintiff succeeds in its action, then the property or the ship is to be sold towards the satisfaction of the claim. The action in rem under the Admiralty Jurisdiction of this Court is legal proceedings against the corpus of the offending ship. One can get a decree in a proceeding in rem against a ship without suing its owner or any person. The object of such an action is to acquire jurisdiction over the ship as the owner of the vessel might be located overseas over which the Court may not have jurisdiction. By getting a ship arrested, the object which is realized is to keep the ship within the jurisdiction of the Court or in the alternative obtain sufficient security to cover various claims made against the ship. There can be a situation where before a ship is arrested, some other claimant has already in some other proceeding obtained writ of arrest of the ship. In such a situation, a claimant is not required to obtain fresh orders of arrest.
6. All that a claimant is required is to file suit for settlement of its claim from the sale proceeds of the ship, if such claim is established in evidence. Thus the arrest of a ship is only an interim measure, which may or may not be sought in suits filed under the Admiralty Jurisdiction of this Court, depending upon the circumstances. Thus, absence of the plea for arrest of a ship does not take out a suit from the ambit of the Admiralty Jurisdiction of this Court if the claim otherwise falls under any of the clauses mention in section 3(2) of the Admiralty Jurisdiction of High Court Ordinance, 1980. The fact that arrest of ship is not a condition precedent for bringing a suit within the Admiralty Jurisdiction of this Court is evident from rule 731 of Sindh Chief Court Rules which reads as follows:-- "731. When a suit is instituted in rem, any party may, on filing an affidavit, obtain from the Court a warrant for the arrest of the property proceeded against."
7. The use of the word "any party may" in rule, 731 of Sindh Chief Court Rules make it evident that in proceedings initiated in rem, the relief of arrest of property e.g. Ship may or may not be sought.
8. Thus the relief of seeking arrest of a ship is optional. It is only an interim measure taken to secure a claim covered under section 3(2) of the Admiralty Jurisdiction of High Court Ordinance, 1980.
9. In the present case by the time Port Qasim Authority filed its suit, the ship was already arrested and ordered to b sold in Suit No.35 of 1999 and therefore the question of again seeking its arrest to secure the claim did not arise. Thus it is amply clear that once it is established that a claim is covered under section 3(2) of the Admiralty Ordinance then it is for the plaintiff to opt for the relief of arrest of the ship in order to secure its claim. In case the claim is secured on account of ship's arrest in some other proceedings or ship's owner has already provided security then there is no need to seek another order for the arrest of the ship. In the case of Yukong Ltd. v. M.T. Eastern Navigator reported in PLD 2001 SC 57 paragraphs 22 to 29 of the judgment it was held in as follows:--
(22) The main point agitated by the petitioner is that subject Suit No.123 of 1996 is not an Admiralty Suit due to non-mention of word 'arrest' in the plaint for the exercise of Admiralty Jurisdiction by the High Court under Admiralty Ordinance No. XLII of 1980. It is noted that arrest is only obtained for security purposes. When security is furnished, the vessel is released. Learned Single Judge has held that subject suit as framed was properly instituted and was maintainable under Admiralty Jurisdiction. There is no legal requirement either in the English law or in Pakistani law to make prayer for arrest of the ship in the body of the plaint. In this particular case, the arrest of the ship was sought, as provided through an application under Sindh Chief Court Rules. The Court in fact had ordered notice and summon to be served on the master of the vessel. In C.M.A. No. 244 of 1996 the summons were duly served upon him. Since the prayer of auction of the vessel was granted, no adverse inference could be drawn against the respondent No.3. It is noted that the vessel was arrested in pursuance to order of the High Court,. Dated 5-10-1995. Such order was first passed in one of the Suits No.678 of 1995 and then Yukong's Suit No.686 of 1995 and thereafter, in other 5 suits mentioned earlier. It being so, arrest sixth time was not necessary at all nor was required for the purposes of obtaining security. As appears from the circumstances, the manager/ operator of the vessel, namely, Adriatic Company had abandoned it and the suits were not defended. Besides, the bill of sale was made in Suit No.123 of 1996 and not n Suit No.686 of 1995.
(23) Mr. Qamar Abbas, learned counsel for the respondent, referred to para.66, volume 14 of British Shipping (1980) which reads as under:-- "actual arrest of a res has ceased to be in the majority of E instances, the distinctive feature of an action in rein.'
(24) He also referred to para.232, Volume, 1, of British Shipping Laws (1964) which reads as under:- "arrest however, is not necessary in all cases. Indeed, in the majority of actions in rem no arrest occurs."
(25) Learned counsel also referred to an English case (1988) Lloyds Law Reports Volume 2, 454
(455) "The Deichland", which reads as follows:-- "....Service of a writ on the vessel was all that was necessary to give the Court jurisdiction over that vessel. A judgment in rem against the vessel could thereafter be entered, whether or not the vessel was arrested...."
(26) In another English case cited by him (1989) Volume I Lloyds Law Report 388 (392) "Frecia Del Nord", in the following was laid down:- "........... The Court was seized of an action in rem from the moment, whichever was earlier, of service of the writ "or" arrest of a ship. It was further stated that "an action in rem may be commenced....When the ship against which proceedings are to be brought is already under arrest and in the custody of the admiralty Marshall..."
(27) He also referred to famous case of "Monica S" reported as (1967 Vol. 2 Lloyds Law Reports 113), wherein the following was held:- "arrest was not necessary to found jurisdiction in an action in rem, service of the writ on the res being sufficient."
(28) On the point of second arrest, he referred to an English case of Frecia Del Nord (1989) Vol. I Lloyds Law Reports 388 (at page 392) which lays down the principle that "second arrest is unnecessary".
10. In the earlier case (1980) of in re: ARO Co. Ltd., (1980) Ch. 196, the Court of appeal had held that "recurrent arrests should be avoided".
29. The Admiralty Jurisdiction of the High Court is to hear and determine the causes, questions or claim enumerated in clauses (a) to (r) of subsection (2) of section 3 of the Ordinance. It includes any claim in respect of a mortgage or a charge on ship or any share therein. The suit, therefore, is covered by clause (c) subsection (2) of section 3 and subsection (2) of section 4 of the Ordinance. The mortgage is the base of subject suit and word mortgage has repeatedly been used in the plaint of the suit i.e. In its heading and also in paras.2, 8, 11, 16, 19 and 20 and in the prayer Clauses Nos. 1 and 2. Title body of the suit also states "Admiralty Jurisdiction". The title of the suit also states that these are proceedings in rem against the ship M.T. Eastern Navigator". In prayer clauses, there is a prayer for auction and auction took place on the request of the respondent No.3/plaintiff. Accordingly, we hold that Suit No.123 of 1996 falls within the Admiralty jurisdiction of the High Court and the respondent No.3 holds priority over the claim of the petitioner.
11. From the elaborate discussion in the above cited Supreme Court case, it is clearly established that it matters not that the relief for arrest of the ship has been sought and that a suit for a claim for port dues holds priority over all other claims. As to the objection that no clause of section 3(2) of the Ordinance covers Port Qasim's claim so as to permit it to invoke admiralty jurisdiction of this Court under the Admiralty Ordinance, suffice is to state that Port Qasim Authority's claim falls under clause (m) of subsection (2) of section 3 read with subsection (4) of section 4 of the Ordinance, 1980.
12. The question whether claim towards port dues and charges enjoy priority over all other claims was answered in the case of Muhammad Bashir Butt v. M.V. Taheri reported in PLD 1980 Karachi 458 and regurgitated in the case of Tawaha v. The Master M.V. Asian Queen reported in PLD 1982 Karachi 749. In these two cases this Court after examining the history of admiralty jurisdiction held that port authority is entitled to have its claim satisfied before other claims are considered. I see no reason to differ with such findings of this Court in the above two cases. Thus Port Qasim Authority's claim being a claim towards port dues and charges, the same is to be given preferential treatment over and above the rest of the claims made in the remaining five suits also filed under admiralty jurisdiction of this Court.
13. With regard to the objection that Port Qasim being statutory authority under Port Qasim Authority Act, 1973, has been provided alternate remedy to file suit under section 23 of the Port Qasim Authority Act, 1973 and therefore its suit is to be treated as an ordinary decree, it is necessary to examine section 23 of the Act which reads as follows:-- ."Alternative remedy by suit.---Notwithstanding anything contained in sections 15 to 22 the Board may recover by suit any tolls, dues, rates, charges, damages, expenses, costs, or in case of sale the balance thereof, when the proceeds of sale are insufficient or any penalties or fines payable to or recoverable by the Board under this act or under any bye-laws made thereunder."
14. I may just say that section 23 simply empowers the Board of Port Qasim Authority to recover its dues and charges by filing a suit. Suit filed under the Admiralty Jurisdiction of this Court is in fact invocation of section 23 as for some reason the Authority in the ordinary course had failed to recover its dues directly from the ship or its owners and suit was the only alternate remedy left with the port authority. Therefore, nothing turns on such objection. As to the merits of each item of Port Qasim Authority's claim, I find that out of 24 different items of claim list the other contesting claimants have disputed only six items, which are collectively valued at Rs.10,370,508. These six disputed items are narrated as follows:-- Sr. No. PARTICULARS Amount 1 Shifting expenses after vessel was sent to mooring, as per para. 11 above.
15. 864,971 2 Mooring charges for serial No.19 @ US $ 0.04 per GRT per day.972,352 3 Mooring charges for serial No.20. @ US $ 0.04 per GRT as per day.488,348 4 Mooring charges for serial No.23. @ US $ 0.04 per GRT per day.1,970,647 5 Mooring charges for serial No.24. @ US $ 0.04 per GRT per clay. (437 days)5,586,611 6 Margin amount to cover extra charges/contingencies487,578 Total: 10,370, 508 Of the six disputed items, four disputed items at Serial Nos.2 to 5 of the above table (Items Nos.19, 20, 23 and 24 of the claim list.) pertain to the rate charged and period applied for mooring charges.
16. The total amount towards the claim of mooring charges under all four items comes to Rs.9,017,959.00. As to the first objection of excessive rate applied for mooring charges, Mr. Khalid Rehman Advocate has argued that Port Qasim Authority has charged mooring charges at the rate of US 0.08 per GTR per day whereas the prescribed rate provided in paragraph No.4 to 6 of S.R.O.
17. No.64 (KE)/2005, dated 12-5-2005 is only US 0.04 per GR per day and therefore he submitted that mooring charges claimed at the rate of US $ 0.08 per GTR per day under above discussed four items have to be halved. Mr. Arif Khan, learned counsel for Port Qasim Authority on the other hand has submitted that at the relevant time S.R.O. No.72(KE)/96, dated 2-5-1996 was applicable and not S.R.O. 64 (KE)/2005, dated 12-5-2005 which is evident from the date of notification itself. With regard to the 1996 notification also, he explained that though Scale "C" of section IV of S.R.O.
18. 72(KE)/96, dated 2-5-1996 provides for mooring charges at the rate of US $ 0.04 per GTR per day, however in Note No.6 to Scale "C" of the said S.R.O. It is clearly mentioned that vessel occupying moorings for more than four months shall be charged double the rate prescribed for mooring in case four months have elapsed when the ship was first moored. From the claim list it is evident that Port Qasim Authorities have initially charged mooring at the rate of US $ 0.04 per GTR per day for 157 days as is evident from Items Nos.10 and 16 of the Claim List and only thereafter mooring charge at the rate of US $ 0.08 per GR per day have been charged. Thus no illegality was committed while computing mooring charges at the enhanced rate of US $ 0.08 which too was applied only after the expiry of 157 days, i.e. Much after the expiry of the initial 120 days as stipulated in Note No.6 of Scale "C" of section IV of S.R.O. No.72 (KE)/96, dated 28-7-1996. Thus no exception could be taken to the computation of mooring charges under the above four items mentioned in the table i.e. Under Items Nos.19, 20, 23 and 24 of the claim list. The other objection was that vessel was sold on 12-1- 2000, yet Port Qasim Authority claimed mooring charges uptill 31-1-2000 i.e. Beyond the date of sale of the ship to the new buyer. In this regard Official Assignee was asked to provide the dates of sale and delivery of the ship. He submitted that ship was sold on 12-1-2000, buyer paid the sale consideration on 25-1-2000 and thereafter ship was delivered to the buyer on 1-2-2000. Thus the procedure for completing the sale transaction took only 19 days. As the liability of buyer to pay mooring charges commences only after he is handed over the delivery of the ship, the same are to be charged only upon 31-1-2000. Just because sale was confirmed in favour of the new purchaser on 12-1-2000 does not mean that new purchaser is to be burdened with mooring, charges from such date. Thus mooring charges are to be computed only uptill 31-1-2000 which has exactly been done in the present case. The Port Qasim Authority is therefore, entitled to claim mooring charges right uptill 31-1-2000 i.e. Before delivery of the was ship handed over to new purchaser. The last objection raised by the other claimant was that Port Qasim Authority has not provided details of the expenses of Rs.487,578.00 which it allocated to cover extra charges or contingencies and therefore this amount is also to be deleted from its claim. There is substance in this objection. A claim bereft of any detail or any lawful basis is liable to be outrightly rejected. The very fact that this claim of Port Qasim Authority is described as contingencies which mean that such an expense has not yet been incurred but is only a provision for future expenses that may or may not be incurred by Port Authority. Thus this claim being based only on apprehension or future expectancy, this entire claim of Rs.487,578.00 is rejected. Resultantly, the claim of Port Qasim Authority is to be reduced by Rs.487,578.00. Thus the total claim of Rs.19,512,422.00 stands reduced to Rs.18,159,873.
19. I shall now proceed to examine the claims raised in the remaining five suits. In Suit No.1254 of 1997 marine bunker fuel oil was supplied to the ship at Colombo, Srilanka on 5-5-1997 valued at US $ 21,565.72. In support of this claim bills and invoices countersigned by the Chief Engineer of the ship have been filed. No doubt has been created as to the authenticity of the documentary evidence produced by the plaintiff. Thus the plaintiff has established its claim to the extent of US $ 21,565.72 which at that time was equivalent to Rs.862,628.80. The Suit No.1254 of 1997 is therefore decreed in a sum of Rs.862,628.80.
20. In Suit 1292 of 1997, the plaintiff in June, 1997 imported sugar from abroad that was shipped on board the vessel. In the survey report, dated 14-7-1997 is was disclosed that heavy as well as moderate to slight damage was caused to 2850 bags of sugar as they became wet. Of these 2850 bags 1295 related to plaintiffs consignment. The plaintiff claimed damage to sugar to the tune of Rs.1,244,890 as well as general damages to the extent of Rs.2,100,000.00. In all a total claim of Rs.3,344,890.00 was raised against the ship. In the evidence it has come that damaged consignment was insured with Adamjee Insurance Company and the survey of the consignment to examine damage was conducted in presence of representative of insurance company. As the damage was examined in the presence of the representative of the insurance company, the plaintiff may have lodged it claim with the insurance company, yet it avoided to disclose what amount was recovered from insurance company. If the claim was not lodged at all, as has been pleaded by the plaintiff then it ought to have been lodged in order to mitigate the losses. The plaintiff also failed to disclose the price at which the damaged goods were sold. In such circumstances, the plaintiff is not entitled to claim damages. The Suit No.1292 of 1997 is, therefore, dismissed. Similar is the position in Suit No.1293 of 1997. The facts are identical with that of Suit No.1292 of 1997. Even the witness is the same. It appears that plaintiff in Suit No.1292 of 1997 is sister concern of the plaintiff in Suit No.1293 of 1997. The statements made by the witness in his cross- examination are identical to the statements made in Suit No.1292 of 1997. On the basis of evidence that has come on record the plaintiff is not entitled to claim damages. The Suit No.1293 of 1997 is therefore also dismissed. In Suit No.14 of 1998 the plaintiff claims Rs.14,694,821 against the vessel on account of port dues, charges and water supplied to the ship. In support of his claim the plaintiff has filed bills, receipt and invoices signed by the Chief Engineer of the ship. No doubt has been created as to the authenticity of the documentary evidence produced by the plaintiff. I- However claims made in Items Nos.1 to 3, 9, 10, 21, 22, 26 and 27 being not covered by section 3(2) of the Admiralty Ordinance are rejected. Thus the plaintiff has established its claim to the extent of Rs.9,065,871 only. The Suit No.14 of 1998 is therefore decreed in the sum of Rs.9,065,871.
21. In Suit No.35 of 1999 the plaintiff claims Rs.2,907,848.70 against the vessel on account of port dues, charges and water supplied to the ship. In support of his claim the plaintiff has filed bills, receipt and invoices signed by the Chief Engineer of the ship. No doubt has been created as to the authenticity of the documentary evidence produced by the plaintiff. Thus the plaintiff has established its claim to the extent of Rs.2,907,848.70. The Suit No.35 of 1999 is therefore, decreed in a sum of Rs.2,907,848.70.
22. From the above discussion it is evident that though the claimants in Suits Nos.1254 of 1997, 14 of 1998 and 35 of 1999 have also established their respective claims against the ship to the extent stated above, however, as the Port Qasim Authority's has succeeded in establishing its claim to the extent of Rs. 18,159,873.00, which claim is more than the recovered amount and as this claim is to be preferred over the claims of the rest of the claimants, no amount shall he left to satisfy the decrees passed in Suits Nos.1254 of 1997, 14 of 1998 and 35 of 1999.
23. In the circumstances, Suit No.7 of 2000 is decreed in a sum of Rs. 18,159,873.00. The decretal amount being more than Rs.17,700,786.00 realized from the sale of the ship M.V. "Salaj" and as the Port Qasim Authority's claim enjoy priority over other claims made in five connected suits i.e. Suits Nos.1254 of 1997, 1292 of 1997, 1293 of 1997, 14 of 1998 and 35 of 1999. The Official Assignee is directed to release entire amount of Rs.17,700,786.00 along with accrued profit earned thereon in favour of Port Qasim Authority.
24. All six suits stand disposed of in the above terms.