1. ' MRS. YASMIN ABBASEY, J.--Facts leading to this case are that respondent No,1 entered into a contract with respondents Nos.3, 4 and appellant for supply -of Cotton White And Dyed Fabric Powerloom as per bills of Lading dated 15-7-2003, 7-8-2003 and 14-8-2003. Consignments were shipped at the Board of Appellant's Vessels for their delivery at the port of Bangkok Thailand to the consignee M/s General Country Group Companies respondent No,3.
2. ' It is stated that due io personal reasoning respondent No,3 refused to take delivery of the consignment as such the shipping documents were never transmitted to the consignee and the ownership remained with respondent No,l. After refusal of consignee to take delivery, appellant through his agent respondent No,2 intimated respondent No,1 through E-mail dated 8-5-2004 about the status of shipment and possibility of the consignment to be put to auction. By second E- mail of 10-5-2004 respondent No,1 was informed about the storage charges of the consignment which comes to US$ 225000. On 16-6-2004 respondent No,1 directed the appellant through E-mail to reexport the goods to Pakistan. Record reveals that till instructions given by respondent No,1 could be practically implemented, goods were taken over by the Customs Authorities of Bangkok and were auctioned by Thailand Customs Authorities.
3. ' According to respondent No,1, these auction proceedings were never communicated to him. Later on he came to know that before auctioning the property Bangkok Customs Office had issued a notice on 18-3-2004 to the Manager of appellant for securing guarantee within 15 days otherwise, the goods would be auctioned. It is alleged by respondent No,1 that all these instructions given by Bangkok Customs Authorities in the notice of 18-3-2004 were never communicated to him. Goods were auctioned on 30-6-2004. It is alleged by respondent No,1 that due to the negligent act of appellant, respondents Nos.2 and 4 who had failed to discharge their part of performance in terms of the contract and had also concealed the material information that property has been decided to be auctioned by Bangkok Customs Authorities, respondent No,1 caused heavy financial loss.
4. ' Conversely the case of appellant and rest of the respondents is that there was no contract in between them and the respondent No,1 that in case of refusal to receive the goods by respondent No,3 they were bound to reship the consignment. According to appellant they were merely Slot Charter and in terms of contract they were not under any obligation to re-export the goods on refusal to take delivery by consignee. Thus were not liable to pay the damages and monetary claim of respondent No, 1.
5. ' With this statement of fact, certain applications were placed by both the parties before the learned single Judge for disposal.
6. ' Application under Order VII, Rule 11, C.P.C. Was moved by defendants Nos.2, 4 and 5 now respondents Nos.2, 5 and appellant for rejecting the plaint being barred under sections 4 and 5 of Admiralty Jurisdiction of High Court Ordinance, 1980 that action in rem against the vessel and action in personam against the appellant, respondents Nos.2 and 3 have been improperly joined in one and the same suit and that plaint does not disclose any cause of action. Expressing his view that:-- "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 the 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 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."
7. ' With reference to PLD 1980 Karachi 229 (Ahmed Investment Ltd., v. Sunrise (iv), PLD 1981 Karachi 246 (Bangladesh Shipping Corporation v. Nedon) and PLD 2001 SC 57 Yukong Ltd., South Korea Co. v. (M.T. Eastern Navigation), application under Order VII, Rule 11, C.P.C. Was dismissed, observing that admiralty jurisdiction is exercisable in rem as well as in personam.
8. ' Challenging these observations, it is argued by learned counsel for the petitioner that the very suit filed by respondent No,1 for an act of personam .By ,the appellant being a slot charter is not maintainable in accordance to section 4 of Admiralty Jurisdiction High Court Ordinance, 1980, which provides that in admiralty jurisdiction of High Court in the cases mentioned in clauses (a) to (d), I & R of subsection (2) of section 3 of the Ordinance can be invoked for an action in rem against the ship or property in question. For ready reference section 4 of Ordinance, 1980 is reproduce as under:-- "4. Mode of exercise of Admiralty jurisdiction.--(1) 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.
(2) The Admiralty Jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d),
(i) and (r) of subjection (2) of section 3 be invoked by an action in rem against the ship or property in question.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that ship, aircraft or property.
(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 a maritime lien on the ship or not, be invoked 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 whereas therein by that person; or
(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid."
(5) In the case of a claim in the nature of towage or pilotage in respect of an aircraft, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against the aircraft if at the time when the action is brought it is beneficially owned by the person who could be liable on the claim in an action in personam.
(6) In the case of a claim in the nature of a maritime lien, other than claim on a bottomry or respondentia bond or to the possession of the ship, the Admiralty jurisdiction of the High Court may be invoked by an action in personam against the owners of the property which would have been arrested if the proceedings had been in rem.
(7) Notwithstanding anything in the preceding provisions of this section, the Admiralty jurisdiction of the High Court shall not be invoked by an action in rem in the case of any such claim as 'is mentioned in paragraph (n) of subsection (2) of section 3 unless the claim relates wholly or partly to wages, including any sum allotted out of wages or adjudged by a competent authority under the relevant law to be due by way of wages.
(8) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, aircraft or other property to be sold, the Court shall have jurisdiction to hear and determine any question arising as to the title to, or priorities of claims in, the proceeds of sale.
(9) In determining for the purposes of subsections (4) and (5) whether a person would be liable on a claim in an action in personam it shall be assumed that he has his ordinary residence or a place of business within Pakistan.
9. ' Whereas in the present case appellant only being a slot charterer had accommodated respondent No, l's consignment on the board of ship for its delivery to the port of destination Bangkok, Thailand therefore, he is not liable to pay their claim as alleged against him.
10. ' According to appellant when respondent No,3 failed to receive delivery of goods, he communicated the message to respondent No,1 through E-mail twicely but as respondent No,1 failed to arrive at any decision with respect to the disposal of consignment and as consignment was lying at the board of Bangkok, Thailand for considerable long period therefore, after giving notice of auction on 18-3-2004 it was auctioned by them on 30-6-2004. Thus in such circumstances when appellant is said to have communicated to respondent No,1 through E-mail on 8-5-2003 and 16-3-2004 before auction proceeding, the responsibility of the damages cannot be laid on him, because as per contract executed in between him and the respondent No,1 he was liable only to the extent of delivery of goods at the board of Bangkok, Thailand and if the consignee failed to take delivery of goods he was under no obligations to re-export the goods as there was no such contract in between them. As per terms of Bill of lading placed at Pages 189, 193 and 195 of this file notified party is shown therein as M/s General Coaling Group Co. Ltd., Bangkok, Thailand and the goods were to be discharged at Bangkok, Thailand in terms of this bill of lading.
11. Responsibility of carrier as embodied in Article 3 of Schedule of Carriage of Goods Sea Act, 1925 is to discharge the goods carried. Where and to whom, has been explained in section 6 of the very Act, which says that the discharge of goods means removal of goods into the custody of the person entitled to delivery thereof under the contract of carriage.
12. Bare reading of section provides that discharge of goods does not mean as has been explained by learned counsel for appellant, that to discharge at the board of Bangkok Thailand, but to the person who is entitled to take the delivery. So if, consignee because of his own reason failed to get release the consignment the responsibility of carrier does not end here. It was responsibility of the carrier, if consignee does not come forward to receive delivery of goods to give a proper notice to him and a reasonable time to pick-up the goods. Even if, no diligent response came to him from the consignee, then he should had followed the local port law, custom and regulation for its careful delivery to the customs authorities. All these factors coupled with the fact that whether carrier appellant had informed to respondent No,1 well in time requires evidence, which at this primary stage is not available on record.
13. Slot charter are relatively a recent device of sharing the carrying capacity of ship. In such arrangement two or more operators usually of similar size vessel in a particular geographic trade will agree to share space on another vessel. The attraction of such arrangement is evident, space is utilized more efficiently and operating are reduced while service is expended. Thus when a party agrees to provide a space at the board of his vessel for transportation from the place of discharge to the place of destination then he cannot escape from the liability on breach of contract from a claim in rem and personam against the offending vessel and its beneficial owner who operates it.
14. In PLD 1993 SC 88 (Atlantic Steamer's Supply Company v. M.V. Titisee and others) it is observed that:-- "It will not be out of context to point out that section 4 of the Ordinance is based on section 3 of the Administration of Justice Act, 1956, which is in force in England. It may be observed that above clause (a) of subsection (4) of section 4 of the Ordinance has been improved upon inasmuch as in place of the words, "it is beneficially owned as respects all shares", the words "it is beneficially owned as respects majority shares" have been employed. In other words, subsection (4) of section 4 of the Ordinance can be pressed into service even when the person who would be liable on the claim in an action in personam owned majority shares in the ship and not all the shares, which is the requirement of subsection (4) of section 3 of the English Act."
15. ' In PLD 2001 SC 57 (Yukong Ltd, South Korea Co. v. M.T. Eastern Navigation) reference of a case law reported in Weekly Law Reporters 818 (827) has been made wherein it was held that:-- "A suit filed in rein under Admiralty Jurisdiction will not fail merely on account of joinder of the owner of the vessel as party to the same. In case of Bangladesh Shipping Corporation the view taken on the basis of The Banco's case (1971) 1 AER 524 was that action in rem lies against a ship without making it defendant. The real defendants are described as owners of or persons interested in ship and the writ of arrest may be effected by serving it on ship. It was held that if no appearance is entered by the owner the action remains as an action in rem operating only against the ship and if judgment is passed in favour of the plaintiff, it can be enforced by sale of the ship, but not against the owner personally or any of his property. Further, it was observed that in consequence of the service if the owner or any person interested in the res, enters appearance and puts up the defence then the person so appearing becomes party to the action and thereby becomes personally liable for whatever may be decreed against him."
16. The fact that as per three bills of lading goods were to be discharged on 29-7-2003, 16-8-2003 and 23-8-2003, therefore, appellant who beneficially owned and operated the three vessels namely "Asian Pollux", "Hyundai Sprinter" and "Hyundai Highway", as per contract executed, was responsible to carry the goods and discharge the same at the port of destination i,e,, Bangkok of Thailand as slot charter, a voyage charter is a contract for the carriage of goods on ship. The carrying ship is operated by the owner or disponent owner and appellant having major share in the vessel is responsible for the damage caused to respondent No, 1.
17. ' So far as the other ground urged that the suit filed by respondent No,1 was time barred as it was to be filed within a period of one year when goods ought to be delivered and as the goods were discharged at the board of Bangkok, Thailand and consequence of non-delivery of them by respondent No,3 was communicated to respondent No,1 through E-mail dated 8-5-2003 therefore, the suit filed by him on 9-10-2004 is barred by limitation.
18. ' Whereas the case of respondent No,1 is that as the goods were not delivered to the consignee who was entitled to take delivery of the same nor were re-exported to Pakistan as advised on 16-6-2004 through e-mail and before any settlement could have arrived in between the parties as to the rate of re-export, goods were auctioned on 30-6-2004. The impugned order reveals that before intimating auction proceeding notice of auction was served on 18-3-2004, but that was not communicated to respondent No,1 in such eventuality the view expressed by Mr. Shaiq Usmani, learned amicus curie before learned single Judge that "limitation in instant case would run with effect from 29-6-2004 when the plaintiff /respondent No,1 was informed that the customs authorities have taken a decision to auction the subject consignment" appeals to reason and thus the suit filed on 9-10-2004 is well in time.
19. ' Observation made in 1962 Dacca 31 (Newzealand Insurance Co. Ltd., Chittagong v. M.A. Rouf and others) in this connection will be material to reproduce:-- "This naturally raises a question as to the date from which the period of one year mentioned in Article III, clause 6 should be calculated. In the words of clause 6, the period is "one year after delivery of the goods or the date when the goods should have been delivered." According to clause
(e) of Article I of the rules relating to bills of lading as included in the Schedule to the .Carriage of Goods by Sea Act, 1925, 'Carriage of goons', covers the period from the time when the goods are loaded on to the time when they are discharged from the ship. Thus, a contract of affreightment comes to an end with the discharge of the goods. Therefore, the expression "one year after delivery of the goods or the date when the goods should have been delivered" occurring in Article II, clause (6), really means one year after discharge of the goods or the date when the goods should have been discharged. The word 'discharge' implies complete discharge of all the goods covered by the consignment. Hence, in a case where the goods are completely discharged, the period of one year shall be calculated from the date of discharge of the goods. However, the time for the discharge of the goods is spread over a number of days, the said period shall be calculated from the date of completion of the discharge."
20. Next ground urged by learned counsel for the appellant is that in against to one claim arrest of three vessels is an utter violation of principle of law as admittedly vessels Ilundai Sprinter' and Ilundai Highway' were only slot charter of appellant and being a slot charter they cannot be held liable for the damages caused to the respondent No,1 as his duty is just to provide space to the consigner's consignment at the board of a vessel as a charter.
21. ' The term charterer as defined in 13th Edition Judicial Dictionary of K,J Aiyar means "a person who charters or hires a ship for a voyage for a certain period."
22. ' Admittedly as per bill of lading executed in between appellant and respondent No,1, appellant being owner and having major share in the vessels had contract over there and thus as per contract had transported goods from Karachi to Thailand, at later stage cannot escape himself from the liability that the vessels were not owned by him.
23. ' In book titled as "Admiralty and Maritime Law", Practitioner's Edition, it is defined that:- "Charters are not in themselves subject to Cogsa but bills of lading issued in conjunction with a charter are. As a practical matter, many charter party forms stipulated the applicability of Cogsa or the Charter Act to the relations between owner and charter. Such stipulation is valid and enforceable even without the issuance of a bill of lading. Suits brought for the breach of an obligation under a charter party are generally within the admiralty jurisdiction. As long as the agreement is executory, for inadequate performance the remedy is in personam which allows the plaintiff to go to the State court under the saving clause. If, however, a charter breach creates a maritime lien, the suit is in rem with exclusive admiralty jurisdiction."
24. Undisputed facts are that respondents Nos.5, 6 slot charterer of appellant were arrested for an action in rem. So far as the arrest of "Nord Strand" concerned, it is stated by learned counsel for the appellant that neither the vessel had carried out the consignment nor any charge was alleged against him but as it is beneficially or otherwise owned by appellant and that is sister ship of appellant's vessel who is avoiding service of suit by not entering in the water of Pakistan. "Nord Strand" sister ship who is under time charter of the subsidiary company of which appellant is principal shareholder can be arrested for the action in rem and in personam.
25. ' Learned counsel for the appellant further stressed that the responsibility of carrier was to the extent of discharge of goods and he cannot be liable for re-exporting the same if the consignee refused or because of any other reason failed to take delivery of the goods. No doubt that the responsibility of the carrier was to deliver the goods but that delivery should be in accordance to the law as provided in the Carriage of Goods by Sea Act.
26. ' In view of above discussion, we are of the view that as soon the consignee had not taken the delivery of goods, it was responsibility of the carrier at the first instance to give notice to the consignee. Record is silent that any such notice was given to consignee before or after issuance of notice of auction by the Customs Thailand Authorities. The record reveals that no intimation of auction notice was also given by the carrier to the consignor respondent No,1 in time and it is alleged that because of that negligent act wherein appellant had paid more stress on the settlement of charges of re-export of consignment he totally overlooked to inform respondent No,1 as to the auction notice, causing damages to him.
27. ' Hence under these circumstances order of arrest of respondents Nos.5 and 6 and 'Nord Strand' being a sister ship of the vessel who is beneficially owned by appellant was just and proper.
28. ' In 2005 CLD 133 (C.V. `Lamon Bay' and others v. Sadruddin and others ), it is observed that:- "The significant expressions in the provisions are beneficially owned as respect majority share. The person liable for the claim in an action in personam should beneficially own majority shares. On compliance of this condition an action in rem for arrest of a sister vessel can be filed. Lord Denning in 1 Congreso Del Parlido [(1981) All England Law Reports 1092] while considering the effect of section 3(4) (b) of Administration of Justice Act, 1956 (analogous to section 4(4) of the Ordinance with slight difference with regard to the beneficial ownership as respect of the shares. In British Act, the person who would be liable on the claim in an action in personam should beneficially own majority share, whereas in the Ordinance such person should own majority share) said: `In applying section 3(4) (b) you have first to consider the position at the time when the cause of action arose in connection with offending ship. You have then to discover a person who would be liable on the claim in an action in personam, Having discovered him, you have to consider the position at the time when the action is brought. You have then to enquire whether that person at that time beneficially owned any ship (a sister ship) besides the offending ship. If there is such a person, you can invoke the Admiralty Jurisdiction of the High court against that sister ship'."
29. ' It is further observed in the very above referred judgment that pre-condition for invoking jurisdiction under section 4(4) (a)(b) is that the person who would be liable on the claim in an action in personam was, when the cause of action arose should beneficially own majority shares in the ship only then sister ship can be arrested. In Register of ship for the year 2004-05 appellant has been shown as beneficial owner of 'Nord Strand". So even if, 'Nord Strand' was not a party in carrying the subject goods then still it was under time charter of his subsidiary company, which also owned Assian Pollex.
30. ' With these observations appeal of the appellant is hereby dismissed having no merit