1. AMANULLAH KHAN, C.J.;---By invoking the admiralty jurisdiction of this Court, instant suit has been filed by plaintiff, for recovery of US$:9,759,415.54 and enforcement of foreign judgment against defendant No.1 in rem and against defendants 2 to 5 in personam. Succinctly the facts as disclosed in the plaint are that, plaintiff is a Liberian Company engaged in various activities in different fields of international trade and commerce, including shipping and maritime industry in general. For carrying out the obligations of transportation, the defendant No.1-Vessel was being used for carrying the goods from one port to another, on the basis of which, she was earning the freight.
2. According to the plaintiff, the defendant No.2, is the current owner of the Vessel whereas defendant No.3 is the (Miner owner at the relevant time when cause of action accrued in the year, 2003. The defendant No.4 is the current Manager of the Vessel while the defendant No.5 was the former Manager. It was averred that, in the year, 1993, the plaintiff was approached by another company i.e. Navigational Satellites Chartering Limited (in short "NSC") for representing the plaintiff in the maritime activities. In lieu of such, request, the NSC was appointed as plaintiffs Agent for carrying out maritime operations. During association with NSC the two long term partners of plaintiffs namely Empressa Cubana Importadfora de Products Quimicos ("Quininport") and Empressa Cubana de Alinentos (Alimimport') to cooperate with defendant No.5, a Cuban State Company in the name and style of `Naviera Poseidon'. It is the case of,plaintiff that since 1993 and until termination of relationship between the plaintiff and NSC in 2003, the plaintiff undertook various projects of maritime when NSC requested him to co-operate with defendant No.5, which resulted in giving various projects to defendant No.5, but during course of transportation it transpired that, due to various acts of omissions of defendant No.5, the plaintiff encountered significant problems and losses and secondly its reputation as a charterer was seriously damaged ensuing to extensive legal costs, incurred by plaintiff, which have not been recovered till to date and due to negligent act of defendant No.5, the excellent relation of the plaintiff with the Cuban State Companies was destroyed, leading to serious financial losses and also forced it to incur huge legal expenses. It has been further averred in the plaint, that in the year, 2000, NSC proposed to the plaintiff regarding transportation of two cargoes from Tunisia to Cuba i.e. The first involved the charter being Quimirnport for 6000 tons of cargo and second involved the charterer being Alimimport for 4000 tons of cargo and for the said voyages, the defendant No.5, was meant to provide a vessel i.e. "MN. Shannon" to carry the said two cargoes.
3. However, the plaintiff performed his part of obligation despite encountering the threats of defendant No.5, for reducing the rates, and at the end of voyage. The defendant No.5, owed an amount of US$114,835.70 and despite several promises for settlement, the defendant No.5 never paid the same. Thereafter the defendant No.5, after the initiation of NSC entered into an agreement with the plaintiff, which was finally concluded, wherein it was agreed that the defendant No.5, would provide the Vessel controlled by it to NSC on a- voyage basis according to fixtures set by the plaintiff, and the outstanding amount would be paid in instalments of US$ 50,000 per voyage until the debt is fully paid. In lieu of this Agreement, the Vessel M.V. Lilac Island (now renamed as M.V.
4. Aldona) was chartered pursuant to charterparty dated 7-2-2002. It is the case of plaintiff that, right from the beginning of this charterparty, the defendant No.1 was not in a position to pay disbursements (port dues, agency fees etc.) in Tunisia being the last port of discharge, nor was it in a position to pay for spare parts, bunkers and supplies needed to enable the Vessel's performance and seaworthiness. These problems continued when charterparty dated 10-5-2002, was arrived, on the basis of which second Vessel M.V. Lotus was chartered. The Vessel M.V. Lilac Island proceeded for the agreed voyages and arrived at the post of Conakry, however, the said vessel was arrested with cargo on board by Adecon Shipping Inc. (is short "Adecon") of Ontario Canada, on the basis of judgment dated 10-12-2003, as the vessel has to deliver one more cargo, pursuant to new agreement, which commenced while the Vessel was discharging at the port of Conakry. The plaintiff in the meanwhile approached the Cuban Ministry of Transport, but no reply was received from Cuba and during this time, the plaintiff learnt that the Court of Conakry had ordered auction of Vessel M.V. Lilac Island in relating to the claim of Adecon. Thus realizing that the Res i.e. Vessel was incapable of performing its contractual obligation and having no option but to secure its claim, the plaintiff initiated legal action in Guinea originally against. Panamaianian companies being owners of two Vessesl i.e. Battersea Maritime Company (defendant No.3) and Wadena Shipping Co. As well as defendant No.5).
5. Thus the Court of Conakry after carefully examining the case, issued Orders Nos. 15 of 26-3-2003 and 17 of 2-4-2003, in favour of plaintiff, awarding total sum of US$:2,446,976.56 which were served upon all concerned parties. Thereafter realizing that the defendant No.5 was not serious in paying the amount, the plaintiff by abundant caution presented a further petition in the First Court of Conakry, with a claim against the other relevant companies. In the first instance the Court of Conakry confirmed the award of US$ 2,446,976.56 against the relevant Companies jointly and severally. The appeals were filed in the matter against the order dated 14-4-2003, which were dismissed in term of Judgment No.56 of 26-6-2003. In the meanwhile the defendant No.3, fraudulently. Succeeded in releasing the Vessel by taking the document of M.V. Lilac Island and allowed the vessel to sail from Conakry. In such circumstances, the plaintiff filed another petition before the First Court of Conakry, which resulted in issuance of Orders Nos.80 of 4-6-2003 and 123 of 5-6-2003, thereby ordering the defendant No.5 and Adecon to bring back the Vessel failing which they would be liable to a penalty of 5,000,000 Guinea Francs per day until the Vessel returned. Due to pressure of the Court orders, the Vessel returned to Conakry port. It is the case of plaintiff that despite various orders passed by the Court of Conakry, the claim of plaintiff was not satisfied and fictitiously the name of M.V. Lilac Island was altered to M.V. Aldona and was somehow brought and beached at Gadani Port. With these averments and for the satisfaction of total claim of US$:9,759,415.54 instant 'suit has been brought under the Admiralty Jurisdiction of this Court, bestowed by Admiralty Jurisdiction of High Courts Ordinance 1980 (hereinafter referred as "the Ordinance of 1980"). The prayer clause of the suit reads as under:-- "The plaintiff therefore, prays that this Honourable Court may be pleased:--
(1) to pass judgment and decree against the defendants Nos.l, 3 and 3 jointly and severally for US$ 9,759,425.54;
(2) to grant mark-up/interest at the rate of 30 per cent per annum from the date of the Suit till realization;
(3) to issue a Warrant of Arrest and/or orders for attachment of the defendant No.1 which is presently berthed at Gadani for the purpose of scrapping/ breaking, which exercise may be restrained till such time as the defendants furnish security either through cash payment or through a bank draft or guarantee in US Dollars of an International Bank doing the business of banking in Pakistan to the extent of the amount claimed in the suit along with amount of costs/mark-up and if the security is not furnished, the defendant No.1, may be ordered to be sold and the claimed amount paid out of the sale proceeds and the balance if any, to be paid by the defendants Nos.3 and 5 jointly and severally;
(4) to grant costs of the suit; and
(5) to grant such further and other reliefs or any other relief which this Honourable Court may deem fit, necessary and proper in the circumstances of the case."
6. On 1 - 11-2006, the suit came-up for hearing when on an application (being C.M.A. No.945 of 2006), filed by plaintiff showing apprehension that the Vessel might be scrapped and the judgments of the Conakry Court will be frustrated; status quo order was passed directing the defendants not to scrap the Vessel.
7. After passing of the order, Mideast Shipping and Trading Ltd. Who is the Vendor of the ship, requested for impleading them as party and filed reply to C.M.A. No.945 of 2006. They were allowed to plead their case vide order dated 14-11-2006. In response to the notices, the defendant No.1, also filed counter affidavit/reply to application for arrest of Vessel.
8. Both defendant No.1, and the Vendor contested the suit on legal and factual plane. I have heard Mr. Agha Faqir Muhammad, learned counsel for the plaintiff, Mr., Muhammad Naeem, learned counsel for Intervenor/Vendor and Mr. Ishrat Alvi, learned counsel for defendant No. 1.
9. Learned counsel Mr. Muhammad Naeem, argued that plaintiff in the aid of admiralty jurisdiction of this Court, is seeking implementation of Foreign Judgments, passed by the Courts, acting in the hierarchy of civil and commercial jurisdiction, against the defendant No.1, in rem and against defendants Nos.2 to 5 in personam. Learned counsel while elaborating his contention argued that, suit in itself does not disclose that it is for enforcement of Foreign Judgments and the prayer clause indicates that claim of plaintiff is solely for the recovery of US$:9,759,425.54, which proves that the suit is simpliciter for recovery of money and if the plaintiff is seeking relief against the Vessel in rem, then he has no right to seek any relief against defendants 2 to 5 in personam. Learned counsel strenuously reiterated that enforcement of judgments which is being sought, in fact had not been passed by the Admiralty Court of Conakry and on the basis of judgments passed by a Court of Conakry functioning in the hierarchy of Civil and Commercial jurisdiction, the plaintiff is trying to bring his case within the admiralty jurisdiction of this Court, thus this Court had no jurisdiction to entertain the suit. Learned counsel empathically argued that, this Court under the Admiralty jurisdiction cannot enforce the judgments in personam as the Judgments in rem purported to be enforced is against the Res. i.e. Vessel and above all the ship is no more 'navigable', as it has not been berthed but it has been 'beached' at Gaddani and process of scrap has already started and now it cannot be said to be a 'Vessel' in terms of the Ordinance of 1980.
10. Agha Faqir Muhammad, learned counsel in reply stated that: he only seeks relief against the Vessel in rem and does not press the relief against the defendants Nos.2 to 5 in personam. Adverting to the argument of learned counsel that, prayer clause of suit' does not disclose that, suit is for enforcement of Foreign Judgments; in this behalf, reference may be made to the prayer clause, reproduced hereinabove. It may be seen that plaintiff is not pressing relief claimed in prayer clauses (1) and (2), and is only pressing prayer clause (3), wherein relief has been sought for issuance of Warrant of Arrest and attachment of the Vessel (defendant No.1), but there is nothing to suggest that said relief is being sought, pursuant to enforcement of judgments passed by the Admiralty Court of Conakry. In this behalf, reference may be made to para.32 of the plaint, which reads as follows:- "That the suit is maintainable in rem against defendant No.1 and the plaintiff is entitled in law to arrest/attach the defendant No.1, under the Admiralty Jurisdiction of High Courts Ordinance, 1980 ("1980 Ordinance") since, inter alia, the plaintiff has a 'charge' over the Vessel. That if the amount due is not paid then the defendant No.1, is to be sold and the outstanding amount is to be paid out of the same proceeds of defendant No.1 and this Honourable Court has jurisdiction in the matter as the Vessel is presently berthed within the jurisdiction of this Honourable Court."
11. The contention of Mr. Muhammad Naeem, learned counsel has substance that, plaintiff only wants to bring his case under the Admiralty jurisdiction of this Court, on the basis of judgments passed by the First Instance Court of Conakry and the Appeal Court of Conakry, under the hierarchy of civil and commercial jurisdiction. I have minutely gone through the judgments passed by the first Instance Court of Conakry and the appeal Court of Conakry. A bare perusal of the same transpires that, said Courts have not passed judgment as Admiralty Courts, but it appears that the judgments were passed by ordinary civil Courts, against the Companies and not the Vessel, by taking into account the provisions of United Act of 10th April, 1998 and various articles of Financial and Administrative Civil Procedure Code. In such circumstances, the case of plaintiff thus, would not fall within the admiralty jurisdiction of this Court, as laid down in section 3 of the Ordinance of 1980, which reads as under:--
3. (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 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) any claim to the possession or ownership of a ship or to the ownership of any share 'therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship;
(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage done by a ship;
(e) any claim for damage receive by a ship; (0 any claim for loss .Of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charters or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults, the owners, charterers or persons in possession or control of a ship are responsible being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge or goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship.
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or shire of a ship;
(i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a port, including any claim arising by virtue of the application by or under section 12 of the Civil Aviation Ordinance, 1960, of the law relating to salvage to aircraft and their apparel and cargo;
(j) any claim in the nature of towage in respect of a ship or an aircraft whether services were rendered on the high sea or within territorial waters or internal waters or in port;
(k) any claim in the nature of pilotage in respect of a ship or an aircraft;
(I) any claim in respect of necessaries supplied to a ship;
(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;
(n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or members of the crew of a ship for any money or property which, under any of the provisions of Merchant Shipping Acts or the Merchant Shipping Act, 1923, is recoverable as wages or in the Court and in the manner in which wages may be recovered; any claim by a master, shipper, charterer or agent in respect of disbursement made on account of a ship; any claim arising out of an act which is or is claimed to be a general average act;
(q) any claim arising out of bottomry or respondentia;
(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise or for the restoration of a ship or any such goods after seizure or for droits of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided, under the Merchant Shipping Acts or the Merchant Shipping Act, 1923, any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.
(3) The jurisdiction of the High Courts under clause (b) of subsection (2) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, Of any share thereof, shall be sold, and to make such other order as the Court thinks fit.
(4) The reference in clause (i) of subsection (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo apparel or wreck as, under any law for the time being in force, are authorized to be made in connection with a ship or an aircraft.
(5) The preceding provisions of this section apply:--
(a) in relation to all ships or aircraft, whether Pakistani or not and whether registered or hot and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wheresoever arising including in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land; and
(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charge created under foreign law: Provided that nothing in this subsection shall be construed as extending the cases in which money or property is recoverable under any provisions of the Merchant Shipping Act or the Merchant Shipping Act, 1923."
12. The plaintiff has utterly failed to show that the judgments were passed by Admiralty Courts.
13. Reference may be made to the, judgment of Probate Division "The City of Mecca (1879 C.275), wherein while setting aside the judgment/decree of Sir Phillimore of the Admiralty Court, Jessel, M.R.
14. Of Appellate Court held as under:-- "It appears to us clear that this judgment is a personal judgment in a personal action. Then it may be said what is there to argue? The argument presented to us by the respondents is this-First of all it is alleged that the action in Portugal was an action for enforcing a maritime lien; secondly, that whatever the terms of the judgment might be, it was a judgment for enforcing a maritime lien and a judgment in rem, and that being so, it was a judgment binding the vessel in the courts of every civilized country under the international law. But if find the simple answer is that it is not an action or proceeding to enforce a maritime lien-nothing of the kind appears on the proceedings. There is no suggestion from beginning to end that the ship is liable; there is no declaration that the ship is liable, and it does not appear on the proceedings that the ship was even within the jurisdiction at the time the action was commenced against the owners. An action for enforcing a maritime lien may no doubt be commenced without an actual arrest of ship, but there is no suggestion that they intended anything of the kind, and in fact, the law does not allow it. An action against a ship, as it is called, is not allowed by the law of Portugal. You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you your judgment against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgment is against the ship. In the present case the judgment does not affect the ship at all, unless the ship should afterwards come within the jurisdiction of the Portuguese Court, and then it can be made a proceeding by which you can afterwards arrest the ship and get it condemned.
15. In the same judgment, while concurring with 'the view, Mr. Baggallay, L.J., held as under:-- "For reasons that have been assigned by the Master of the Rolls, which it is unnecessary for me to repeat, it appears to me that there is no question but that the proceedings in the Tribunal of Commerce in Portugal were entirely personal proceedings--proceedings in personam. No doubt proceedings of a different character were commenced in the Civil Tribunal of Portugal-those proceedings preceded the judgment of the Tribunal of Commerce. In this first instance in the Civil Tribunal an embargo was obtained by the plaintiffs in the present action to arrest the ship, and the ship was only released by giving security. But those proceedings were made the subject of an appeal in the Supreme Court of Lisbon, and ultimately the decision of the Court of first instance was reversed, and on the two grounds to which reference has already been made, the one that it was not within the ordinary jurisdiction of the Tribunal of Commerce to grant an embargo, unless it were established that the ship was to blame, so far differing from proceedings in the English Court of Admiralty, in which, where the matter is in doubt, the ship may be arrested and security given if, it is allowed to go, but in Portugal it is not the law while there is a doubt. That was one ground. The second ground for discharging the embargo, I must confess, appears to be one more difficult to understand. Whatever might be the effect of that particular reason which can be only well understood by an examination of the particular article of the Code to which reference has been made; one thing is clear, that there was proceedings that could have been taken in the Civil Tribunal in Lisbon, by which the arrest of the ship could be obtained, and this would be a proceeding in rem according to my view."
16. Thus on this plane the suit merits dismissal. Agha Faqir Muhammad, learned Advocate, argued that Maritime lien being a right in rem would be enforceable in rem against the rem, the said lien being a charge on the res and travels with it even in the hands of a bona fide purchaser with notice.
17. Conversely Mr. Muhammad Naeem, Advocate strenuously argued that, aforesaid principle is not applicable to the instant case. The learned counsel contended that, under the Admiralty law the Crew Members and Master of the ship have a maritime lien over the res i.e. The vessel but in this case, undisputedly the plaintiff is neither the owner of the vessel nor a Crew member. Besides at time, when the orders were passed, the owner did not own the vessel and the same was purchased later on free from any encumbrance. It may be observed here that the Crew and the Master of the Vessel have a maritime lien over the vessel which right can be enforced against the res the Vessel in admiralty jurisdiction. It is a right in rem and can be enforced by action in rem against the res. In this regard reference may be made to PLD 1991 SC 120 "Hong Leong Fiunance Limited v. MV Asian Queen through Nazir High Court". In the case in hand admittedly the plaintiff is neither a Member of the Crew nor the Master of the ship, thus the aforestated principle does not apply to his case. Coming to the argument of Mr. Muhammad Naeem learned counsel for the vendor that when the initial cause of action accrued to the plaintiff the defendant No.1 was owned by the present Vendor.
18. It may be mentioned here that if a suit under section 4(4) of the Ordinance is brought for an action in personam, the plaintiff has to show that, when cause of action B in personam accrued, person liable, at the time was the owner of the res i.e. The vessel. In the case in hand, admittedly when initially the cause of action accrued to the plaintiff, the Vessel was not owned by the present owner i.e. Commercial Metals. The ship was purchased from its previous owner i.e. The Vendor Messrs Mid East and Trading Limited of Navis. It may be mentioned here that the ship admittedly was registered in Panama and though the judgment of first Court Conakry was passed in the year, 2003, but there is nothing on record to suggest that the Registration Office at Panama was informed about the Attachment and judgment against the Vessel. Moroever, the Vessel was purchased through a valid agreement and a non-encumbrance certificate was also issued. Thus it can be safely concluded that, Purchaser had no knowledge about the proceedings against the res.
19. As such, the judgment could '. Be enforced against the purchaser. Reference may be made to Himayat Ahmad v. Khalid Khan 1991 M LD 148. And (Atlantic Steamer's Supply Co. v. m.s. Titisee) PLD 1993 SC 88. In the former, it has been observed as under:-- "In admiralty, suit in rem is competent for recovery of claim for necessities and other disbursement made by the. Agents only so long as ownership of the vessel has not been changed. Since the ownership of this vessel had changed before the filing of the suit, it became property of new purchaser i.e. Defendant No.3, free from all encumbrances and proceedings in rem' for recovery of the dues, if any, against the previous owners were no longer competent, except where there was a maritime lien available which was not the case in this suit.
20. Plaintiff's counsel has himself admitted that no claim for supply of necessaries which is not a Maritime lien can be enforced against a vessel if its ownership changes before the filing of the suit.
21. Reliance was placed by the defendant's counsel on the case of Oriental Shipping Company Ltd. v.
22. M.V. Monto-Crisdo 1984 CLC 2265."
23. Whereas in the later case-law it has been held as under:-- "It may observed that section 4 deals with the mode of exercise of Admiralty jurisdiction. Sub- section (I) thereof provides that 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, whereas subsection (2) of it lays down that the Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d) (i) and (R) of subsection (2) of section 3 be invoked in rem against the ship or property in question. It may further be stated that subsection (3) of above section 4 provides that, in any case, in which there is maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court can be pressed into service by action in rem against the ship, aircraft or property.
24. "It may also be noted that subsection (4) of section 4 lays down that in case of the claim covered by clauses (e) to (h) and 0) 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 action in personam was, when the cause of action arose, the owner of charterer of, or in possession or control of the Admiralty jurisdiction of the High Court, may, where the claim gives rise to a maritime lien on the ship or not, be involved 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 persons; or
(b) any other 'ship which at the time when the action is brought, is beneficially owned as aforesaid."
25. Coming to the next contention of learned counsel that the ship has not been berthed, as such, being not 'navigable' cannot be termed a 'Vessel'. To determine, the said point, it would be advantageous to refer to the definition of 'berth', which means, the place allocated to the Trading Vessel which comes and leaves for loading and unloading goods. In the case in hand, the Vessel has been 'beached at Gaddani and it was argued at length that Admiralty Court can only issue arrest warrants of Vessel, if it is navigable. For reference, the meaning of words navigable' ship' and 'Vessel' as defined in Blacks Law Dictionary, are reproduced herein-below:- "Navigable. Capable of being navigated. ---That may be navigated or passed over in ships or vessels. Natcher v. City of Bowling Green 264 Ky 584, 95 S.W. 2d 355, 259. But the term is often particularly at common law, understood in a more restricted sense viz subject to the ebb and flow of the tide. Lusher v. Reynolds, 153 Or. 625, 56, P.2d 1158: 1162.
26. Ship. A vessel of any kind employed in navigation. In a more restrained and more technical sense, a three-masted vessel navigated with sails. U.S. v. Kelly, 4 Wash. C.C. 528, F. Cas No.15,516."
27. Vessel. A ship, brig, sloop, or others craft used in navigation. The word in its broadest sense is more comprehensive than 'ship'.
28. Any structure which is made to float upon the water, for purpose of commerce or war, whether impelled by wind, steam, or oards. Chaffe v. Ludeling 27 La. Ann.
607. Any structure, especially a hollow one, made to float upon the water for purpose of navigation; a craft or navigation of the water, often, specifically, one larger than a common raw boat; as, a war vessel: a passenger vessel. City of Tampa v. Tampa Shipbuilding and Engineering Co. 136 Fla. 216, 186 So. 411, 412; Massm an Const. Co. V. Bassett, D.C. Mo., 30 F. Supp. 813, 815."
29. Learned counsel argued that the ship is no more 'Vessel' as it has been beached at Gaddani for scrap. Reference was made to the report of Bailiff, who served the notices of the Court, wherein it was stated on solemn affirmation that, pursuant to the order dated 4-11-2006, notices were taken in order to get them served upon the representative of defendant No.1, Mr. Saeed Mian and ship on Plot No.45 Gaddani was beached and there ship M.V Aldona was shown to him and it was found that already 25% of the ship was dismantled and scrapped. Thus taking into consideration the above definitions, in the light of this report, the ship could not be said to be a 'Vessel', as it is no more navigable. In this regard reference may be made to AIR 1999 Bombay 193, wherein following observations have been made:--
11. From all these discussions regarding res and action in rem it is clear that when the plaintiff files for an action in rem and arrest of vessel, he must prima fade prove that res was in existence on the date of its arrest.. If the defence denies the existence of res and contends that res was demolished, the burden is still on the plaintiff to prove that on the date of 'arrest the res was in fact in existence and not demolished to such an extend so as to get converted into goods."
30. Mr. Muhammad Naeem learned counsel also raised the question of limitation, by contending that, since the judgments were passed in the year, .2003 therefore, in view of section 6 of the Ordinance of 1980, the plaintiff was to file suit within a period of two years, whereas admittedly the same has been filed after a period of two years. Since the suit has been found not entertainable in the hierarchy of admiralty jurisdiction, for the enforcement of foreign judgments passed by the ordinary Courts and further the ship is no more 'vessel' therefore, it is not necessary to go into the question of limitation. In view of the over all discussion, the suit is dismissed, for want of jurisdiction, with no order as to costs. Office to draw the decree sheet and thereafter the file be consigned to record.