This Admiralty appeal has been filed under section 7(1) of the Admiralty Jurisdiction of the High Courts Ordinance, 1980 against the order of the learned Single Judge dismissing the appellants application tinder Order VIII, rule 1, C. P. C.
2. The appellants filed a suit against respondent No. 1 for recovery of Rs. 2,45,75,481.30 as damages to their ship Banglar Bani and cargo caused by fire by m. v. Nedon, the respondent No. 1 on 1-8- 1980. The Admiralty Judge after hearing the parties ordered for the arrest of the respondent No. 1 till such time security in the sum of Rs. 50,00,000 was furnished. So far the respondent No. 1 has not furnished the security. The respondent No. 2 claiming to be the owner of the vessel filed the written statement. The appellants objected to the appearance made by respondent No. 2 and filed an application under Order VIII rule 1, C. P. C. Read with section 151, C. P. C. It was averred that the vessel m. v. Nedon is owned by Nedon Navigation Company Limited. Messrs Ruta Azul Maritime Inc., the respondent No. 2 who has filed written statement has not been impleaded in the suit as a defendant and as in the past Master of m. v. Nedon had entered appearance on behalf of the ship, the written state--ment filed by respondent No. 2 could not be accepted on record. It was further averred in the application that without making an application for joining respondent No. 2 as a defendant or without seeking permission of the Court the respondent No. 2 cannot enter appearance and file written state--ment. The appellants prayer was in the following terms :- "In the premises, it is prayed that the Honourable Court may be pleased to order that the written statement filed by Messrs Ruta Azul Mari--time Inc. May not be accepted or record unless an application is made by them for joining them in the suit as defendant and the question of ownership of the defendant vessel is decided."
2-A. The appellants have disputed that the respondent No. 2 is the owner of the ship. On the other hand the respondent No. 2 in its counter-affidavit claims to be the owner of the ship under arrest, having purchased the said ship from its previous owners, namely, Nedon Navigation Company Ltd., through a bill of sale dated 18-6-1980. To establish its claim of ownership the respondent No. 2 filed copy of Bill of sale and certificate of registration with the written statement from this assertion it is clear that according to the respondent No. 2 it had purchased the ship before the incident as the damage is alleged to have been caused by the ship on 1-8-1980. Therefore the transfer of ownership will not defeat the plaintiff's claim.
3. .The objection of the appellants is based on the misconceived practice of filing Admiralty action in rem by describing the ship as a defendant. We have observed that of late such practice has developed is this Court. Before the promulgation of Admiralty Jurisdiction of High Courts Ordinance, 1980, the jurisdiction exercisable by this Court were the same which were formerly exercised by the High Court of Admiralty in England under the Admiralty Court Acts of 1840 and 1861. Now after the enforcement of Admiralty jurisdiction of High Courts Ordinance, 1980 the jurisdiction of Admiralty Courts in both the countries are not only identical but in certain respects this Court has wider jurisdiction. According to the practice in English Courts title of an Admiralty action in rem was described in the following manner ; "In The High Court (Admiralty Division)
Admiralty Action in rem against (The Ship X or as may be describing the res)
The owners of The Ship `Y' or as may be-Plaintiff and The owners of the ship 'X' or as may be describing the res-Defendants."
The writ of arrest or summons was also issued under the same title addressed to the owner of the ship or persons interested in the ship. It was not necessary that the plaintiffs may always be owners of the ship. They may be persons, company, Master or crew, entitled to bring an action in rem and thus the plaintiff's description could suitably be amended. In this context the main point to be noted is the description of the defendant in the pleadings. First description of the res is given to the identify the ship or property and the defendants are described as "Owners of the ship..." without giving the full name and description of the owner. The writ for the arrest of the ship issued by the High Court of Admiralty was intended to cause notice to all the world including the owner and any person interested in the ship. Reference can be made to the case of Ahmad Investments Limited v. m. v. Sunrise IV PLD 1980 Kar. 229 where after considering all the leading English authorities it was observed as follows :- "According to practice in England, the action in rem in the admiralty jurisdiction was commenced with the issuance of writ for the arrest of the vessel which was intended to cause notice to all the world with regard to the claim endorsed upon the (Halsbury's Law of England, 4th Edn.. Vol. I, paras.
360 & 365 at pages 245 & 247). After the service of the writ, the owners of the property proceeded against and all persons directly interested in the cause were then entitled to appear and defend, without filing any affidavit and showing their interest, at all time before the judgment."
Again the principles governing the action in rem were elucidated in the following manner :- "In a suit filed in rem, the prime action lie against the res or the property itself and in the exercise of the said jurisdiction it is left to the Court to exercise the same either by proceedings in rem or by proceedings in personam. The ship after all is an inanimate object and cannot defend itself, and, of necessity, the action is to be defended by the Master, the owner or any person interested in the vessel irrespective of the fact whether they were joined as a party to the suit or not. The plaintiff itself may also mention the name of the owners without formally impleading them as party to the suit."
"The owners of the property proceeded against and all persons directly interested therein. May appear and defend, without filing an affidavit and showing their interest, at any time before judgment. Further, any person not named in the writ may intervene in an Admiralty action in rem and appear on filing an affidavit showing that he is interested in the res under arrest or in the fund in the registry. Such persons are mortgagees, trustees in bankruptcy, underwriters who have accepted abandonment, charterers, persons who have possessory liens, or competing maritime- liens, and generally persons who are plaintiffs in other actions in rem against the same property.
But if the intervention is unnecessary to protect the inter--vener's right he will be refused his costs.
Persons who intervene in order to defend the action cannot set up defences which are not open to the owner of the res."
We hope in future proper practice shall be followed. Regarding the matter historically and legally an action in rem is against a ship without making it as a defendant. The real defendants are described as owner of or persons interested in the ship, and the writ of arrest may be effected by serving it on the ship which may be accepted by the Master, owner or by nailing or pasting it on the Mast or other conspicuous party of the ship. As a conse--quence of such 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. If no appearance is entered the action remains as an A action in rem operating only against the ship arrested and if a 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. If any authority is needed reference can be made to the observations made by Lord Denning M. R. In the case of The Banco (1971) 1 A E R 524.
4. The appellants' objection to the appearance of the respondent No. Is based on misunderstanding of Admiralty practice as discussed above. The appellants by raising objection at a preliminary stage cannot debar the owners or persons interested in the ship from entering appearance and putting up the defence.
The appellants' objection may have been meaningful if the respon--dent No. 2 would have made any claim against the vessel having priority over the appellants' claim. We do not find any allegation of this nature. The learned counsel for the appellant stated that the value of the ship is much less than the claim. In this situation we would have expected the appellant to agree for the respondent No. 2 to defend the action as in that event the respondent No. 2 would be liable to satisfy the entire decree if passed in favour of the appellant. The learned counsel for the appellant contended that at the time of the arrest of the ship the Master had entered appearance anal the name of defendant No. 2 was not disclosed as the owner. Appearance by the Master does not necessarily imply that the respondent No. 2 is not the owner of the ship. When a ship is arrested in a foreign port the Master as agent of necessity of the owner can enter appearance, d.-fend the action g and protect the interest of the ship and the owner. By change of ownership the authority of Master does not cease to exist so long he is in command of the ship and has not been removed.
5. Mr. Kazmi the learned counsel for the appellants submitted that in any event the learned Single Judge should have ordered to try the issue relating to the ownership of the vessel as a preliminary issue. The learned (1) (1971) 1 A E R 524 Single Judge has considered this objection and rightly held that as this issue arises out of the pleadings of the parties the plaintiff would be entitled to get an issue framed on the point when the Court frames the issues in the suit. In the face of the bill of sale and registration certificate in favour of respondent No: 2, at this stage of the proceeding, the trial Court may not embark upon an enquiry relating to the genuineness of the title claimed by respondent No. 2. After the issue have been framed the appellants will be at liberty to file proper application for trial of any issue as preliminary issue but at this stage neither the respondent No. 2 can be debarred from filing written state--ment nor any order for trial of any issue as preliminary issue can be passed.
We, therefore, find no merit in this appeal which is dismissed in limine.