' Pursuant to a decree passed in this admiralty suit brought by the plaintiff in rem against m. v.
'Taber? Which was arrested by the order dated 13-3-1979, the vessel was sold by Nazir of this Court for Rs, 4,00,000.
' The Karachi Port Trust claimed a statutory lien on the vessel for port dues. Howev er, subject to determination of their rights to payment of their dues in priority to other claims, they allowed the vessel to be sold.
' The Karachi Port Trust has now claimed a sum of Rs, 1,14,936.80 out of the sale proceeds lying in the Court in priority to the decrees passed in other admiralty suits against the vessel.
' The Karachi Port Trust has claimed dues on account' of port charges and mooring fees from 14-3- 1979 when the vessel was arrested at Rs, 38.40 per day amounting to Rs, 17,336.80 and from 21-8- 1979 to 20-10-1979 at the rate of Rs, 1,600 per day amounting to Rs, 97,600, making a total of Rs, 1,14,936.80.
' Besides this suit, 16 other suits were filed against the vessel in rem, 15 of them were by the Master and Crews for their wages and one was by the Local Agent for 'necessaries' supplied to the vessel.
Decrees in all these suits were passed for the amounts mentioned below : {{TABLE}}
1. Adm. Suit No, 211/79 Rs, 45,627.50
2. " " " 237/79 Rs, 10,656.50
3. " " 238/79 Rs, 10,345.21
4. " " 239/79 Rs, 14,591.87 " " 240/79 Rs, 10,345.11 " " PP 338/79 Rs, 67,560.00 " " " 340/79 Rs, 29,999.46 ,, PP 339/79 Rs, 14,056,74 " " ., 341/79 Rs, 2,129.11 " " 816/79 Rs, 30,227.50 PP 817/79 Rs, 23,948.50 ,, ,, 818/79 Rs, 33,105.60 PP 819/79 Rs, 04,571.00 PI Pt 820/79 Rs, 11,400.00 " " 823/79 Rs, 07,984.00 " " 915/79 Rs, 09,118.00 PP PO 614/79 Rs, 15,096.98 Total Rs, 3,41,563.08. {{TABLE}} ' Out of the above amount a sum of Rs, 2,10,111.50 as stated by the Nazir in the Reference dated 23- 2-1980, has already been paid to the decree-holders and a sum of Rs, 4,000 has been paid- to the Nazir as his fee leaving a balance of Rs, 1,89,888.50 out of the sale proceeds of Rs, 4,00,000 while the total claims remaining to be satisfied yet on account of decrees for wages are of Rs, 1,20,354.60 and on account of decree for 'necessaries' is Rs, 15,096.80. The Karachi Port Trust's claim is for Rs, 1,14,936.80. It is, therefore, obvious that all these claims cannot be satisfied in full out of the amount available with the Nazir of this Court.
' I have heard Mr. Aftab Ahmed Alvi Advocate for the decree-holders in all the suits and Mr. Nasir Aslam Zahid Advocate for the Karachi Port Trust.
' The points which require determination are :-
(1) Whether the Karachi Port Trust is entitled to priority on account of mooring charges or Port due over the claim under the decrees passed in favour of the Master and Crews and the decree passed on account of "necessaries" supplied to the vessel ?
(ii) Whether the claim by the Karachi Port Trust on account of mooring charges at the rate of Rs, 1,600 per day from 21-8-1979 to 20-10-1979 is according to law ?
' Mr. Aftab Ahmed Alvi contends that the Karachi Port Trust is not entitled to priority over the claims for wages by the Crew members and the Master in the circumstances of this case and that, in any case, he contends, the Karachi Port Trust is not entitled to claim mooring charges at the rate of Rs, 1600 per day from 21-8-1979 to 20-10-1979.
' In support of the first contention he submitted that the vessel was arrested on 14-3-1979, and it was sold on 20-7-1979 but delivery could not be given to or taken by the buyer for various reasons (which need not be stated here) until 6-10-1979 when it was delivered on buyer's agreeing to pay the port dues arising subsequent to 20-10-1979 and therefore he argued it was not due to any default on the part of the vessel that she remained mooring in the port for all this period but it was due to Court's order. He, therefore submitted that in the circumstances of this case the Karachi Port Trust is not entitled to priority over the wages claim. He supported this submission by relying on the following paragraph from Halsbury's Laws of England, Third Edition, Volume 35, page 788 :- "It would seem that the determination of the priority of liens over one another rests on no rigid application of any rules but on the principle that equity shall be done to the parties in the circumstances of each particular case."
' In support of the second contention Mr. Aftab Ahmed Alvi submitted that before the enhancement of mooring charges by the Notification No, S. R.
0. 48 (K. E.)/79 : dated 21-8-1979, the Karachi Part Trust was levying mooring charges at the rate of Rs, 38.40 per day and after that date the Karachi Port Trust has claimed mooring charges at the rate of Rs, 1,600 per day but they could not claim more than Rs, 800 per day, for under the revised rates mooring charges for the first four months are Rs, 0.25 per N. R. T. Or part thereof per day subject to a minimum of Rs, 800 per day or part thereof and thereafter they are to be charged at Rs, 1,600 per day.
' In order to appreciate the first contention of Mr. Aftab Ahmed Alvi it is necessary to first pose a question and find its answer. The question is what is the nature of the claim of the Karachi Port Trust.
' The answer is found in section 52 of the Karachi Port Trust Act, 1886 whereunder the Board of Trustees of the Karachi Port Trust has a right to distrain or arrest a vessel if the Master of the vessel neglects or refuses to pay any tolls, dues, rates, charges or penalties which become payable under the Act or any bye-laws made in pursuance thereof, and form non-payment of such tolls, dues, rates, Charges or penalties or costs of the distress or arrest or keeping of the vessel within the time mentioned in this section, to sell the same, and to satisfy the claim out of the sale proceeds.
' Here I may reproduce the provisions of section 52 in extenso and also the provisions of section 53 thereof.
"52.-If the master of any vessel in respect of which any tolls, dues, rates, charges or penalties shall be payable under this Act, or any bye-laws made in pursuance hereof refuses or neglects to pay the same or any part thereof on demand, it shall be lawful for the Board to distrain or arrest of their own authority such vessel and the tackle, apparel or furniture belonging thereto, or any part thereof and detain the same until the amount so due shall be paid.
' And, in case' any part of the said rates or penalties, or of the costs of the distress or arrest or of the keeping of the same, shall remain unpaid for the space of fifteen days next after any such distress or arrest shall have been so made, the Board may cause the vessel, or other thing so distrained or arrested to be sold, and with the proceeds of such sale may satisfy, such tolls, dues, rates, charges or penalties and costs of sale remaining. Unpaid rendering the surplus, if any, to the Master of such vessel on demand."
"53.-If the Bord shall give to the officer of Government, whose duty it is to grant the port clearance of any vessel, a notice stating that an amount therein specified is due in respect of tolls, dues, rates, charges or penalties chargeable under this Act, or any bye-laws or orders made in pursuance hereof, against such vessel or the owner or master of such vessel, in respect thereof such officer shall not grant such port clearance until the amount so chargeable shall have been paid."
' It will therefore, be seen that the Karachi Port Trust has more than a statutory right of lien. It has also the right to distrain or arrest a vessel for non-payment of tolls, dues, etc. And to sell the same and out of the sale proceeds thereof adjust its dues.
' The exercise of statutory power of sale by the Karachi Port Trust for reimbursement of tolls, dues, in view of the above-quoted provisions is, therefore not within the ambit of priorities. I am fortified in my view by the following statement, contained in paragraph 1573 of the British Shipping Laws, Volume I, 1964 Edition : "(1) The exercise of a statutory power of sale for the reimbursement of a harbour or dock authority, e. g., under the Harbours, Docks and Fiers Clauses Act, 1847, or the authority's own Act if it contains suitable provisions, is not within the ambit of priorities".
' This right was fully recognized by the Courts in England where more or the less a similar provision existed in sections 248 and 253 of the Mersey Dock Acts Consolidation Act, 1858.
' In this regard Mr. Nasir Aslam Zahid has relied on a case of the Court of Appeal in England namely, "The Emilie Million (1). In this case the facts ware that the Emilie Milian arrived at the port of Liverpool and entered the appellants dock, and she thereby became liable to pay to the appellants dock tonnage rates. At the time when the ship entered the dock wages were due from the owners of the Emilie Million to the master and crew, who had a maritime lien on the ship in respect thereof. While the ship was in dock an action in rem was brought in the Court of Passage of the City of Liverspool (Admiralty Jurisdiction) by the master and crew for the enforecement of their maritime lien. The Master and crew recovered judgment in that action, and, while the ship was under arrest under a warrant from the Court, an order was made for her sale by
(1) (1905) 2 K B 817 auction by the marshal of the Court. Attempt to sell by auction having failed, she was sold by private treaty for 250 L. At this time dock tonnage rates in respect of the ship were due to the appellants, who had the right under section 253 of the Mersey Dock Acts Consolidation Act, 1858, to detain her until all such rates were paid. A summons was accordingly taken out in the Court of Passage directed to, among others, the appellants calling upon them to show cause why the sale of, the Emilie Million by private treaty for 250 L should not be sanctioned by the Court, and why the lien of the appellants for their charges should not be transferred from the Emilie Million to the fund when in Court. The appellants appeared on the summons and opposed the latter part of the application. The learned Judge made an order of which the part material to the appeal was : "That the sale of the ship the Emilie Million be confirmed and that the vessel be delivered to the purchaser free froth all claims and demands against her on payment of the purchase money into Court less the auctioneer's "charges". That the marshal's account be taxed and paid out of the money when in Court. That any right of the Mersey Docks and Harbour Board to payment of their charges in priority to other claimants. Which they may be entitled to under their Acts of Parliament be preserved as against the fund in Court."
' On appeal it was observed by Collins M. R : "It seems to me to be quite clear upon the express wording of sections 248 and 253 of the Mersey Dock Acts Consolidation Act, 1858, that the Mersey Docks and Harbour Board have right to detain a vessel until all dock tonnage rates and harbour rates payable in respect of such vessel have been paid. The order made by the learned Judge of the Court of passage seems to ignore that right so clearly given by the Act, because it orders vessel to be delivered to the purchaser free from all claims and demands against her, and it purports to preserve to the Board as against the fund in Court any right which their Acts may give them to payment of their charges in priority to other claimants. The board have no such prior right or charge. The only protection which section 253 gives them is the right to detain the vessel until the dock dues are paid, and nobody can, against the will of the board, undo or annul that statutory provision. With respect, the order of the learned Judge seems to me to have been misconceived, and it must be set aside."
' To this reasoning Lord Romer and Lord Mathew agreed, though adding their separate notes.
' I may also refer to a decision of the House of Lords in Mersey Docks and Harbour Board v. Hay and others 'The Countess' (1) in which the case of the 'Emilie Million' was noticed with approval by Lords Birkenhead and Atkinson.
' Lord Birkenhead observed at hage 165 of the report:- "The appellants appealed on the ground that the statute enabled them to detain the vessel until the rates, and charges were paid and that no other person, either purchaser or holder of a maritime lien, had any greater right than the owners. It was held that the contention was well- founded. Collins, M. R. Said : "The only protection which section 253 gives is the right to detain the vessel until the dock dues are
(1) 16 AMLC 161 paid., and nobody can, against the will of the Board, undo or and that statutory provisions. So far as this case is material, it is an authority entirely in favour of the appellants."
' Lord Atkinson observed at page 171 of the report as follows : "It shows that the statutory right of the board to detain the ship until the dock dues are paid, similar to that of the board in the present case, ,is paramount to all maritime liens. By parity of reasoning the statutory right of the Board to detain a vessel until the amount of the damage done by her is paid or deposited would take precedence of all other liens or charges upon the vessel ; and, to use the words of the then Master of the Rolls, "nobody can annul or undo that statutory provision without the consent of the board with the claims of all the other claimants is practically to annul and undo it, without the consent of the board. What the board is claiming is not a charge upon the ship or her value ; it is the right to detain the ship herself until the damage done to the property of the board is paid for. If the 44681. Represents, and is, the substitute for the ship., as I think it is, the board is entitled, in my view, to hold it."
' I, therefore, hold that the Karachi Port Trust is entitled to have cliam satisfied before other claims are considered.
' As regards the passage from Halsbury's Laws of England relied upon by Mr. Aftab Ahmad Alavi, Advocate it would suffice to say in view of the' provisions of section 52 of the K. P. T. Act and two decisions of Court of Appeal and the House of Lords referred to above the question of priority does not arise in the present case, and even if it is accepted for the sake of arguments, that it does, even then the seamen's lien is postponed to the dues of harbour. I may refer to the same paragraph from Halsbury's Law of England, on which reliance is placed by Mr. Aftab Ahmed Alavi. It is stated therein :- "As to the general order of priority, after payment of the marshal's charges and expenses, the right of a dock and harbour authority, exercising its powers under the provisions of the Harbours, Docks.
And Piers Clauses Act, 1847 (10 and 11 Vict. c. Or to take possession of and sell a wreck in respect of conservancy charges (The Sea Spray, (1907) P. 133, : 10 Asp. M. L. C.
462. In the veritas (1901) P. 304, 9 Asp. M. L. C.
237. It seems to have been admitted that the right was paramount and good against all the world including the holders of maritime liens") Overrides All Maritimes Liens" (*Underlining is mine for emphasis)
' I may also refer to paragraph 1220 from the same Volume which reads : "The Seamen's lien is postponed to (*underlining is mine for emphasis) a damage lien (The Benares (1850), 7 ,Notes of Cases, Supp.
1. The Linda Flor (1857), Sw.
309. The Elin (1883), 8 (D. 39 ; 5 Asp. M. L. C. 120 ; on appeal, 8 P. D. 129 C. A. 5 Asp. M. L. C. 122), to salvage rendered after the wages earned Sabina (1842), 7 Jr. 182 (and see apparently the same case reported as the Selina (1842) 2 Notes of Cases 18) : The Gustaf (1862) Lush.
506. The priority of wages earned subsequent to a salvage service does not seam to have been determined. In The Mons. (1932) P. 109, 18 A. S. P. M. L. C. 311, the order of priority was expressly stated to be in accordance with an admission by the salvors), to a ship wright's [Here in italics] lien from the time he had possession (The Gustaf (1882), Lush 506, The Immacolata Concezione (1882), P. P. D. 37, 5 A,p. M. L. C. 208, The Tergeste, (1902) P. 26 ; 9 Asp. M. L. C. 356) barbaur dues (*underlining is mine for emphasis).
' The Emilie Million, (1905) 2 K B 817., C. A.
1.0 Asp. M. L. C. 162 (a dock company which is authorised to detain a ship until the rates are paid can do so notwithstanding that there are maritime liens on the ship before she entered the dock) ; Mersey Docks and Harbour Board v. Hay, the Countess, (1923) A C 345, H L 16 Asp. M. L. C. 161 and see p. 788, ante) of damage to dock or harbour works (The Veritas, (1901) P. 304 ; 9 Asp. M. L. C.
237. Mersey Docks and Harbour Board v. Hay the Countess (1923) A. C. 345 H. L. 16 Asp. M. L. C. 161), or conservancy charge obstructions (The Sea Spray (1907) P. 133, 10 Asp. M. L. C. 462)."
' Therefore, according to Lord Halsbury also the seamens lien is postposed to the harbour dues.
' Now, I would take up the second contention of Mr. Aftab Ahmed Alavi Advocate. I have already referred to the relevant provisions of the notification a perusal whereof shows that under the amended rules mooring charges for the first 4 months are to be levied at the rate of Rs, 800 per day and thereafter, at the rate of Rs, 1,600 per day. The submission of Mr. Aftab Ahmed Alavi is that the Karachi Port Trust Authority is claiming charges at the rate of Rs, 1,600 per day right from very first day the notification came into effect and if this claim is upheld it would amount to giving retrospective effect to this notification which is not permissible under the law. In support of the contention Mr. Aftab Ahmed Alavi relied upon a number of cases of the Supreme Court and various High Courts and I need not go into them for it is settled that under the rule-making powers, in the absence of some power in the statute, an authority which exercises delegated powers, cannot affect vested rights or create new obligations or liabilities retrospectively.
' However, Mr. Nasir Aslam Zahid submits that the notification is not being applied retrospectively.
' Therefore, the question that falls for consideration is whether the notification is being applied retrospectively or not.
' Now, if the Karachi Port Trust claims mooring charges for the first 4 months from the date of notification at the rate of Rs, 800 and thereafter at - the rate of Rs, 1,600 per day than it cannot be said that the notification is being applied retrospectively but if charges areclaimed at the rate of Rs, 1,600 per day from the date of notification then of course, in my opinion, the notification is given effect to retrospectively for the mooring period prior to the date of notification is taken into consideration for the purposes of levying higher charges, which under the settled law cannot be done. It may I be stated that before the date of notification mooring charges were being levied at Rs, 38.40 per day and the Karachi Port Trust has in fact upto the date of notification has claimed charges at Rs, 38.40. Therefore, it is clear that although the Karachi Port Trust is not claiming higher charges prior to the date of notification but by not calculating such charges for the period from 21- 8-1979 to 20-10-1979 which all falls within first four months at the D rate of Rs, 800 per day it in effect is giving to the notification retrospective operation.
' There is yet another aspect of the matter. The notification does not make any clear provision for such case as one under consideration. It is retried that if the language of any provision of statute clearly imposes a tax or confers the power of imposing a tax that provision must be given its proper effect. But where two possible meanings could be given to the provisions of a statute, that which is more favourable to the subject ought to be accepted. If any authority is needed reference may be had to a Division Bench decision of this Court in Messrs Star Vacuum Bettle Manufacturing Co. Ltd., v. Collector of Central Excise and Land Customs, Karachi, and 2 others (1). Therefore, for the period which falls within the first four months of the notification the charges can be claimed only at the rate of Rs, 800 per day.
' Now, therefore, if the notification is applied prospectively then the Karachi Port Trust will be entitled to mooring charges for the period falling within the first 4 months from 21-8-1979, the date of notification at the rate of Rs, 800 per day. In this view of the matter, I am of the opinion, that the Karachi Port Trust is entitled to mooring charges under the notification at Rs, 800 per day from 21- 8-1979. It is agreed that if charges are calculated accordingly the total claim of the Karachi Port Trust unto 20-10-1979 will come to Rs, 66,136.80.
' Now, therefore, after deducting this amount of Rs, 66,136.80 for payment to the Karachi Port Trust balance amount of 1,23,751.70 will be available, which may be paid to satisfy the decrees passed on account of wages of the members of crew and the master and thereafter, in satisfying the decree in Suit No, 614 of 1970, which is a decree passed on account of the claim for "necessaries" supplied provided there is no other claim decrees or objections or caveat, and in accordance with law, and after the period of appeal expires.