The above suit has come up for hearing of the above application filed under rule 731 of-,the Sind Chief Court Rules (O. S.). The facts leading to the filing of the above suit are that the plaintiffs filed the above Admiralty Suit against the vessel named s. s. Nedon (hereinafter referred to as the vessel) for the recovery of Rs. 2,45,75,481/30 on the ground that on board of the plaintiffs' vessel, namely, m. v. Banglar Basni (hereinafter referred to as the damaged vessel) fire had taken place on 1-8-80 at 09.20 hours when from the damaged vessel the cargo in No. 2 twin deck and No. 3 twin deck and fore--part No. 4 lower hold was in the process of being unloaded. It has been averred that at about 9-20 hours, it was sighted by one of the crew members of the damaged vessel on duty that all of a sudden sparks from the funnel of the vessel errupted and blown towards No. 4 hold of the plaintiffs' vessel like lightning the sparks came in contract with the jute bales causing fire and suddenly the jute bales burnt into flames. It has been further averred that prior to the above incident the plaintiffs through a letter dated 27-7-80 protested the master of the vessel regarding the possibility of the funnel sparking if the defendants'. Vessel was toremain alongside with the damaged vessel. It has also been averred that on 30-7-80 at about 20-00 hours, when the labourers were on board for resuming the discharge of the cargo from the damaged vessel and that hatches were opened by the Second Officer of the plaintiff, at that time, he saw sparks emitting from the funnel of the vessel. Thereupon, the master of the damaged vessel strongly protested the vessel's master, who assured that no spark would henceforth escape from the vessel funnel and that after such assurance the work of discharging the cargo had commenced on 1-8-10 when the above fire had taken place. The cargo on board consisted of raw jute, jute yarn, gunnies.
The break-up of the plaintiffs' above claim is as follows:
(i) Damage suffered in respect of the cargo equivalent to --7,50,000Rs. 1,75,53,905
(ii) Damage suffered in respect of the vessel equivalent to -- 2,00,000 P.s. 46,81,044/30
(iii) Loss of profit equivalent to -- 1,00,000Rs. 23,40,522/10.
The above suit was filed on 7-8-80, when it was placed for chamber orders before the learned Senior Judge during the summer vacation. On the basis of the averments contained in the plaint, the above application and the affidavit, the vessel was arrested.
2. The defendant after service of the warrant of arrest of the vessel has put in appearance and has filed counter-affidavit ?.To the application, wherein inter alia the following pleas have been raised:
(i) That as the vessel was neither under repair nor any welding work was being carried on, the question of emission of sparks from the plaintiffs' vessel did not arise.
(ii) That sparks could not have been seen in the day time and, therefore, the plaintiffs' allegation that the sparks were seen on 30-7-80 at 20-00 hours and again on 1-8-80 at 0920 hours is false.
(iii) That a spark as such rises as spark but by the time., it touches down the surface, it becomes ash and, therefore, the question of causing fire by the spark does not arise.
(iv) That in any case no fire to jute goods can be caused by spark immediately, when it comes in contract with the jute good's. .
(v) That the vessel m. v. 'Ocean Endeavour' belonging to Pakistan National Shipping Corporation was berthed near the damaged vessel and the repair and welding works were being carried out and, there--fore, possibility of sparks emanating from the other vessel cannot be ruled out.
(vi) That the fire has been caused due to the negligence of the master of the plaintiffs' vessel, who could have immediately closed the hatches and. Released C. O. 2 system which could have immediately extinguish--ed the fire.
(vii) That the direction of the wind was about 210 degrees on 1-8-80 and even if the spark would have emitted from the funnel of the vessel, it could not have entered into the hatch No. 4 of the damaged vessel.
(viii) That the fire had occurred on account of throwing of lighted cigarette by some crew members or the labourers on board the damaged ship.
3. The plaintiffs have filed a rejoinder to the above counter-affidavit, wherein they have denied the various averments made by the defendant in the aforesaid counter-affidavit. It has been averred that m. v. Ocean Endeavour was at Berth No. 1 abreast of a Chinese ship, while the damaged vessel was at No. 2 berth. It has also been denied that the fire was caused by throwing cigarette by some crew member or the labourer on board the damaged ship. It has also been denied that there was any negligence on the part of the master and the members of the damaged vessel. It has been averred that the employment of C. O. 2 system in the circumstances would not have been practicable as the batches were open and in the case of No. 4 hold, the most of the cargo had been discharged leaving a large void space, which was not conductive to the use of the above system.
4. (a) It has been urged by Mr. Kazmi, learned counsel for the plaintiffs that the plaintiffs have a prima facie case for the confirmation of the above order of arrest.
(6) Whereas Mr. Sharaf Faridi learned counsel for the defendant con--tended that the plaintiffs have no prima jacle case inter alia for the following reasons:-
(i) That the suit is not competent as the damage was not caused by the vessel either directly or indirectly during the navigation.
(ii) That since the suit claim relates to tort, the suit cannot proceed in the absence of the owner.
(iii) That the suit is premature in view of the declaration by the plaintiffs of the general average claiming contributions from cargo owners, in respect of the damaged vessel.
(iv) That in any case the plaintiffs are not competent to maintain the suit for the cost of cargo.
(v) That the suit suffers from the lack of basic particulars in spite of lapse of more than 2 months since the incident.
(vi) That the claim is excessive and that no fault or privity is alleged against the ship-owners, but merely negligence on the part of the master of the vessel has been alleged and therefore, the liability of the defendant will be at the most at the rate of 8-- per ton of the tonnage of the vessel.
(vii) That as the Colonial Courts Admiralty Act, 1890, has been repealed by the British Statutes (Application to Pakistan Repeal Ordinance), 1969. Rules 735 to 775 of the Original Side of the Sind Chief Court Rules stand repealed and, therefore, rule 731 (O. S.) cannot be pressed into service.
(c) The plaintiffs in order to show a prima J'acie case have relied upon the following documents:
(i) Plaintiffs' damaged vessel's master's letter 27-7-80 addressed to the defendant's vessels master pointing out that the plaintiffs' vessel was carrying jute cargo, which was in the process of discharge and that the defendant's vessel's funnel was sucking and there was every possibility of sparks escaping from the defendant's vessel's funnel coming into the holds of the plaintiffs' damaged vessel having jute cargo. Which might result in serious fire (Annexure A to the plaint).
(ii) Plaintiffs' master's letter dated 1-8-80 addressed to the defendant's vessel's master written at 11.15 hours stating therein, that the plaintiffs hold the defendant responsible for the fire, which was caused due to the sparks emitting from the defendant's vessel's funnel (Annexure A-I to the plaint).
(iii) A news item appearing in English daily newspaper Dawn dated 3-8-80 inter alia stating therein, that the sources suspect that the fire might have been caused by the sparks emanating from the funnel of the Greek Ship i. e. the vessel berthed in abreast position of the plaintiffs' vessel (Annexure 'B' to the plaint).
(iv) The survey report dated 4-8-80 issued by Messrs Oceanic surveyors, containing the detail of the cargo and the reason for the fire as disclosed by the master and the members of the crew on board the damaged vessel (Annexure C to the plaint).
(v) Declaration made by the master of the damaged vessel dated 5-8-80 stating, therein the reason for the fire, namely, escape of sparks from the vessel's funnel (Annexure D to the plaint).
(vi) The photostat copy of the true copy of the Mate's log book entry dated 1-8-80 giving the aforesaid reason for the fire (Annexure E to the plaint).
(vii) Photostat copies of the entries dated 27-7-80, 30-7-80, 1-8-80 of the plaintiffs' damaged vessel's official log book, whereas entry dated 27-7-80 states that the master of the damaged vessel has served a notice on the master of the vessel on 25th and on today by seeing emission of funnel sparks, whereas entry dated 30-7-80 states that at about 20-0) hours when hatches were opened to resume cargo work, the Second Officer on duty sighted huge quantity of funnel spark from the vessel coming out, whereupon he informed the master of the damaged vessel and the unloading of the cargo was suspended. Furthermore, entry dated 1-8-80 narrates the aforesaid reason for the occurrence of the fire (Annexure E to the plaint).
(viii) News item appearing in Urdu Jang dated 2-8-80 containing identical news items as appeared in the aforesaid English daily newspaper Dawn (Annexure G to the plaint).
(lx) Statement containing the detail of the cargo (Annexure H to the plaint).
(x) Alleged Ist statement made by Mohsin A.I the Master of the plaintiffs' damaged vessel (Annexure A-1 to the plaintiffs' affidavit dated 23-9-80).
(xi) Another survey report dated 22-9-80 issued by Messrs Oceanic Surveyors (The above survey report has been produced on 27-9-80).
(xii) An affidavit of one Mr. .Colinn Papwrith dated 10-8-80 being an alleged senior Marine Surveyor of the firm Messrs Perfect Lambert & Co., London stating therein that the jute goods are of such nature that they instantly combustible when coming in contact with sparks such as those from a ship's funnel.
(xiii) A copy of the telex (filed along With their application dated 18-8-80).
(xix) A copy of Shipping Intelligence's report issued by the Karachi Port Trust for some of the dates between 3-1-80 and 9-8-80, pages 2 to, 8 (filed along with the plaintiffs' counter-affidavit dated 8- 9-80), showing the arrivals and departures of the various vessels from the Port of Karachi.
(xv) A copy of the minutes of the meeting held between the represen--tatives of Bangla Desh Government and the Government of Pakistan dated 10-8-80 (p. 9).
(d) Whereas the defendants have produced the following documents in order to show that the plaintiffs have no prima facie case:
(i) A photostat ,copy of the Shipping Intelligence's report dated 2-8-80, issued by the Karachi Port Trust showing the arrival of the vessel m. v. Ocean Endeavour (Annexure D to the counter-affidavit).
(ti) The vessel . Master's reply dated 1-8-80 to the damaged vessel's master's aforesaid letter dated 1-8-80 (B-1 to the counter-affidavit).
(iii) The, vessel. Master's reply dated 5-8-80 to the damaged vessel Master's aforesaid letter dated 1-8-80 (Annexure D-2 to the counter-- affidavit).
(iv) A sketch showing the location of the two vessels in question (Anqexure Pr3).
(v) A photostat copy of the survey report dated 10-8-80 issued by Messrs Marine Consultants (filed by the aforesaid defendant alongwith their statement dated 11-8-80 for submitting the above report).
(vi) A copy of the inquiry report in respect of the fire in question prepared by 'the Deputy Conservator, Karachi Port Trust under sec--petition 247 of the Merchant Shipping Act, 1923, stating therein, that the fire had not been caused on account of any spark emanating from the vessel's funnel and that it might have been caused from the burning of match or cigarette having been negligently thrown into the holds containing jute and jute goods by the stevedore labourers working or because of sabotage. (The above survey report was filed by the defendant through their application dated 4-9-80 presented on 7-9-80). The copy of the above report is appended with the copies of the statements of 14 witnesses recorded by the Inquiry, i. e. Master and members of the crew of the vessel and of the damaged vessel and also of the dock-labourers working on board for unloading the cargo.
5. (a) It has been urged by Mr. Kazmi, the learned counsel for the plaintiffs that in view of the documents produced by the plaintiffs, it cannot be urged that the plaintiffs have no prima facie case against the defendant or that the same is an afterthought. In this regard the reliance has been placed on the plaintiffs' vessel's master's aforesaid letter dated 27-7-80 pointing out to the defendant's plaster that the vessel's funnel was sucking and that there was possibility of sparks emanating from the funnel resulting into fire: Whereas it has been urged by the learned counsel for the defendant that the plaintiffs have no prima facie case and that this Court in order to ascertain as to whether there is prima facie case or not should examine the documents on record.
It may be pertinent to observe that the defendants have denied the correctness of the two survey reports produced by the plaintiffs and also the correctness of the entries of the Mate's log book and the vessel's log book referred to hereinabove, whereas the plaintiffs have denied the correctness of the survey report produced by the defendant and also the correctness of the inquiry report etc. Prepared by the Deputy Conservator. It has been contended by the learned counsel for the plaintiffs that the above alleged inquiry report cannot be relied upon as the same has been prepared by a K. P. T's. Official, against whom the plaintiffs' had served a notice for the claim arising out of the -above fire on account of their negligence in bringing in the vessel in abreast position alongside the damaged vessel in spite of the protest by the plaintiffs.
(b) The question which requires consideration is as to whether the plaintiffs have made out a prima facie case in order to maintain the order of arrest. According to Mr. Kazmi the instant suit is an admiralty suit against the vessel and the relief of arrest of a vessel in admiralty matters is a normal relief recognised in Maritime Law through the world and that this Court is to see as to whether the plaintiffs will have a case against the defendants in case they succeed in proving the averments of the plaint. Whereas it was urged by Mr. Sharaf Faridi that the principles applicable for determining an application under Order XXXVIII, C. P. C. For attachment before judgment ox under Order XXXIX, rules 1 and 2, C. P. C. For an ad interim injunction are also applicable to an application for arrest of a vessel in an admiralty suit, and that this Court will have to examine the documents brought on record.
(c) Mr. Kazmi has relied upon the case of The Myrto (1) and the case of the vessel named The Lisboa decided recently by the Court of Appeal of England comprising of Lord Justice Denning, Lord Justice Waller and Lord Justice Dunn in the case of Mike Trading & Transport Ltd. v. Roman Pagnan & Petro Pagnan (2), the case of Hayat Shipping Agencies Ltd., Karachi v. Delta Pioneer and others (3), the case of Messrs Ameejee Yalleejee & Sons v. m. v. Azeem and 2 others (4), the case of Messrs Diamond Engineering Mechanical Electrical & Marine Engineering Contractors v. m. v.
Luctor-I (m. v. Union Brenda) and S others (5), the case of Captain Yousuf Kazi and another v. s. s. Phoenix and 3 others (6), the case of Pakistan Burmah Shell Ltd. v. s. s. Phoenix and 4 others (7).
Whereas Mr. Faridi has relied upon the aforesaid case of 1972 Karachi 442, the case of Messrs Karachi Gas Co. Ltd. v. Messrs Fancy Foundation (8) the case of Messrs Ahmed Investment Ltd., Karachi v. m. v. Sunrise (IV) and another (9).
(d) (i) Reverting to the case of the 'Myrto', it may be observed that the mortgagees of the vessel, which was arrested, brought an application for the release of the vessel. While rejecting the above application, it was observed by Brandon, J. That:- "an order for the release of the ship made in interlocutory proceedings before the trial was a drastic one which should only be made in a clear case, and the present one was not such a case."
(ii) Referring to the aforesaid case relating to the vessel Lisboa, it was held by the Court of Appeal that:- "By the maritime law of the world the power of arrest should be and was available to a creditor exercising it in good faith in respect of a maritime claim wherever the ship was situated, even though the merits of the dispute had to be decided by a Court in another country. Simple justice demanded that the arrest should be upheld and maintained, unless and until security was provided for the release of the vessel."
The Court of Appeal declined to release the ship and the order of Justice Mocatta for arresting the vessel was maintained.
(1) 2 Lloyd's L R 243 (2) Llord's M. L. N. L. Dated 7-8-80
(3) PLD 1972 Kar. 442 (4) PLD 1978 Ka,. 467
(5) PLD 1978 Kar. 837(6) PLD 1978 Kar. 1052
(7) PLD 1979 Kar. 789(8) PLD 1977 Kar. 191
(iii) Reverting to 1972, Karachi case, it may be stated that the suit was filed by the charterers. The order of arrest was recallee upon hearing a preliminary objection raised by the defendant vessel that the claim of the plaintiff was not covered under section 6 of the Admiralty Courts Act, 1861, It was held by the Court that section 6 of the above Act conferred jurisdiction in respect of any claim by the owner, consignee or assignee of any bill of lading of any goods carried into the relevant ports but does not cover a claim of a charterer. Since it was held that prima facie the suit was not competent, the order of arrest was recalled.
(iv) Reverting to the case of m. v. Azeem (1978 Karachi 467), it may be stated that in the above case the order of arrest was recalled upon coming to the .Conclusion that the claim of the suit did not arise on account of necessaries supplied or the services rendered to the above vessel and, therefore, the action in rein against the defendant vessel was not competent.
(v) Whereas in the case of m. v. Luctor-I .It was held that Admiralty jurisdiction of the Sind High Court, is derived from the provisions of Admiralty Act, 1961, and that any enlargement or extension of admiralty jurisdiction of the Birtish Courts by subsequent enactments, does not affect the jurisdiction of the High Court of Sind. In the above case .The order of arrest was recalled on the ground that the plaintiffs had failed to prove that they had any maritime lien over the defendant's vessel in terms of the various sections of the Admiralty Courts Act, 1961. .
(iv) Reverting to the case of Capt. Yousuf v. s. s. Phoenix it may be stated that in the above case upon the trial of the suit, the same was dismissed on the ground that the evidence produced by the plaintiff did not show that they had disbursed the total amount as alleged, but in fact they had disbursed only less than half of such amount and such disbursement was less than the amount in the plaintiffs' hands on account of the freight.
(vii) Whereas in the case of Phognix, it was held that if the supplies have been made on the credit of the agent, suit in rein against the vessel in respect thereof was not competent. The contention that the suit was in rein as well as in personam was negatived and it was held that an action on necessaries in admiralty jurisdiction proceeding both in rein and in personam is not maintainable.
(viii) Reverting to 1977 Karachi case, it may be stated that the above case related to a suit for specific performance of a sale of immovable property, while considering the question of granting an ad interim injunction it was observed that the question of injunction cannot be approached with any hard and fast rule like mathematical formula and that being equitable and discretionary reliefs, each case is to re decided in the light of its own facts and circumstances and that the Court while deciding will take into considera--petition admitted documents placed before -it, though such assessm ent is of tentative nature and not binding on the Court trying the suit.
(ix) Whereas in the above 1980 Karachi case, it was held that by virtue of section 35 of the Admiralty Act, 1561, the admiralty jurisdiction can be exercised in rein as well as in person name.
The above case dissented from the earlier case of Karachi referred to hereinabove relating to s. s. Phoenix in which it was held that an admiralty action cannot be maintained in rein as well as in personam.
(e) In order to enforce the above contention that the principles applicable to an application under Order XXXVIII or XXXIX, C. P. C. For an order of attachment before judgment or for an ad interim injunction are also applicable to an application for arrest of a vessel in an admiralty suit, Mr. Faridi has invited my attention to rule 729 of the Sind Chief Court Rules (O. S.) which has referred to the C.
P. C. And also to his contention noticed hereinabove, namely, that on account of the repeal of Colonial Courts Admiralty Act, 1890, the aforesaid rule 731 cannot be pressed into service. In my view the repeal of the above Act has not done away with the power of this Court to order the arrest of a vessel in pursuance of an application. In my view under admiralty jurisdiction, the power of arrest of a vessel is inherent, ancillary, ,4 incidental and necessary for exercising the admiralty jurisdiction effectively = and completely. The above power has been exercised by this Court for such a long period that it is not open to agitate that in the absence of rule 731 of the Sind Chief Court's Rules (O. S.) this power cannot be exercised by this Court. In my view, it is not necessary to go into the question as to whether on account of the repeal of the Colonial Courts Admiralty Act, 1890, the aforesaid Sind Chief Court Rules stand repealed or not.
(f ) Reverting to the question, as to whether the general principles applicable to case of an attachment before judgment or in respect of an ad interim injunction can be pressed into service, while considering an application for arrest of a vessel under rule 731 of the Sind Chief Court Rules (O. S.) or under inherent power, it may be pertinent to mention that an admiralty suit is a suit of special type. It is against the res i. e. the vessel. In my view it cannot be equated with an ordinary suit, in which an application under Order XXXVIII or XXXIX, C. P. C. May be moved. Therefore, the principles applicable in deciding an application for attachment before judgment B or for granting an ad interim injunction cannot be made strictly applicable, to an application for arrest of a vessel in an admiralty suit. It may be noticed' that in the above-cited Karachi cases, in which the orders of arrest were recalled, the Court had come to the conclusion that the claims were not triable as admiralty actions. Whereas the above English cited cases indicate that the relief of arrest of a vessel is a normal relief which is granted in an admiralty suit except in those cases, in which the Court comes to the conclusion that the claims in actions, cannot be tried as admiralty actions or that claim is bogus on the face of it. Furthermore, generally an admiralty suit ?s a suit against a vessel, if the vessel is allowed to leave the limits of the Court's jurisdiction without a security, the suit loses ;its utility. It maynot be possible to execute the decree if any passed, as by time the suit will be finalized the vessel may sink or she may be purchased by a bona fide purchaser without notice.
6. (a) Keeping in view the principles enunicated hereinabove, it may be pertinent to examine the respective contentions of the learned counsel for the parties on the question of prima facie case.
Mr. Sharaf Faridi, learned counsel for the defendants in support of his contention that the plaintiffs have no prima facie case has relied upon the following documents:-
(i) The Inquiry Report prepared by the Deputy Conservator K. P. T. Under section 246 of the Merchant Shipping Act, 1923.
(ii) The statements of the following witnesses recorded by the Inquiry Officer, the copies of which are appended to the copy of the above Inquiry Report as stated hereinabove.
(i) Captain M. A. Qudoos, Master of the damaged vessel.
(ii) Mr. Nevillee Syril Coelho, The Chief Officer of the damaged vessel.
(iii) Mubarak, (iv) Ismail and (v) Ahmad Soomar.
The above three persons were working as Dock Labourers in the hold in question for unloading the cargo.
6, last para. Which reads as follows:-- "And as such we have an opinion that there are fairly good reasons to believe that the sparks might emitted with the huge volume of smoke at about 0900 hours on Ist August, 1980, and could have fell into No. 4 Lower hold of Banglar Baani due to prevailing wind direction and velocity and the Raw Jute in the for'd part in square of hatch, could have caught fire instantly as Jute being highly combustible cargo."
It has been vehemently urged Mr. Sharaf Faridi that since the above Inquiry Report was prepared by the Deputy Conservator, in pursuance of the provisions of the Merchant Shipping Act, 1923, the same along with the statements of the witnesses recorded by the Inquiry Officer can be looked into by this Court for the purpose of determining, as to whether the plaintiffs have a prima facie case.
On the other hand it has been urged by Mr. Kazmi, the learned counsel for the plaintiffs that the plaintiffs have denied the correctness of the above report and the statements. It was further urged by Kazmi that since the plaintiffs have served a notice on the K. P. T. For the claim in question before the submission of the report by the Deputy Conservator K. P. T. The above report is biased and cannot be relied upon. Mr. Sharaf Faridi has referred to sections 245 to 248 of the Merchant Shipping Act, 1923, and also to section 80 of the Evidence Act, whereas Mr. Kazmi has relied upon the case of Star Sea Transport Corporation v. Slater Laughton 8c Collarbone (The Camilla M) (1), and the case of Indian Airlines Corpora--petition v. S. M. Madhori Chowdhuri and others (2).
(b) It is true that by virtue of the provisions of section 246 of the Merchant Shipping Act, the Deputy Conservator of the K. P. T. Was competent to hold a preliminary inquiry and to enquire into the reason of the fire, but the report is to be proved formally at the trial of the above suit. In my view at this stage without formal proof of the report I cannot hold that the conclusions arrived at by the Inquiry Officer are correct. If I were to accept the conclusions of the Inquiry Officer at this stage it would amount to non-suiting of the plaintiffs. As pointed out hereinabove in para. 4 c) according to the finding of the Inquiry Officer the fire had not taken place on account of the sparks from the funnel of the vessel, but had taken place for the other two reasons referred to hereinabove. It is true that neither the Master of the plaintiffs' damaged vessel nor its Chief Officer has stated before the Inquiry Officer that they had seen the sparks coming out from the funnel of the vessel. It is also correct that the aforesaid Dock Labourers whose statements have been referred to by Mr. Sharaf Faridi have allegedly stated before the Inquiry Officer that they were working in the hold in question of the damaged vessel and that they had not seen any "Chingari". In my view the statements recorded by the Inquiry Officer without the cross--examination of the above witnesses before this Court by the parties cannot be looked into. It may be observed that the parties were not provided any D opportunity by the Inquiry Officer to cross-examine the said witnesses. Furthermore, since copies of the alleged statements have been appended to the copy of the Inquiry Report, and as the original of the Inquiry Report or the originals of the above of witnesses' statements have been brought on record of the above suit, section 80 of the Evidence Act cannot be pressed into service.
The above section provides that whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence or any part of the evidence, given by a witness in a judicial proceedings or before any Officer autborised by law to take such evidence or any statement or confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, or by any such Officer as aforesaid, the Court shall presume that the document is genuine and that any statement as to the circumstances under which it was taken, purporting to be made by the persons signing it are true, and that such evidence, statement or confession was duly taken. It is clear that in order to invoke the above provisions of the Evidence Act the originals of the documents purporting to be a record or a memorandum of evidence, purport--ing to be signed by a Judge or Magistrate or by any Officer authorised to record such statements should be available on record. The statements of the witnesses recorded in any other proceedings may be put to the witnesses before a Court in cross- examination by virtue of section 145 of the Evidence Act in case they make inconsistent statements to their previous statements. But in my view the statements of the witnesses recorded by an Inquiry Officer while holding a preliminary Inquiry cannot be used as substantive piece of evidence for the purpose of deciding the above suit or the application. The above statements may become relevant under the circumstances mentioned in section 33 of the Evidence Act or the same may be proved to corroborate the testimony of the witnesses at the trial of the above suit under section 157 of the Evidence Act.
(1) 1979 Lloyd's M & C L 246(2) AIR 1965 Cal. 252
(c) (i) In the above case of the Star Sea Transport Corporation, it was held by a U. S. District. Court of Canal Zone (Balboa Division) that "the evidence of the Board of Local Inspectors as to the circumstances surrounding the extent in issue were admissible, they were not as alleged by the defendants, conclusive as to the facts."
(ii) Whereas in the above 1965 Calcutta case it was held by a Division Bench of the Calcutta High Court that the Inquiry conducted under section 7 of the Aircraft Act, 1934, read with rule 75 of the Indian Aircraft Rules is not a private inquiry and that the same is a relevant fact under section 5 of the Evidence Act because it has bearing on the question of the existence or non-existence of every fact in issue and such other facts, which are regarded as relevant under the Evidence Act and that the report is also a fact which speaks of the occasion, cause or facts in issue under section 7 of the Evidence Act and that this is also admissible as a fact under section 9 of the Evidence Act. It was further held that, the above report was duly proved at the trial of the suit but the evidence tendered before the Court of inquiry is not necessarily evidence before the High Court unless these questions and answers to the witnesses were put, who deposed at the trial. It was also held that the report after having been proved has not become evidence under sections 2 and 3 of the Commercial Evidence Act, 1939.
(iii) It will suffice to observe that the above two cases support the view which, I am inclined to take tentatively i. e. The above inquiry report and the statements recorded by the Inquiry Officer cannot be looked into by this E Court at this stage unless the inquiry report in formally proved and the statements recorded by the Inquiry Officer are not brought on record and proved under section 33 and/or section 157 of the Evidence Act referred to hereinabove.
(d) It was also urged by Mr. Sharaf Faridi that according to the aforesaid plaintiffs' survey report dated 22nd September, 1980, the -sparks from the funnel of the vessel could have fell into No. 4 lower hold of the damaged vessel due to the wind direction and velocity, and the raw jute in the forward part in square of hedge could have caught fire instantly as jute being highly combustile cargo, and, therefore, the fire could not have started at the place; where it was allegedly started, namely, in No. 4 lower hold on Port side near the ship side. prima facie case.
(e) It has been averred by the plaintiffs that the instant case is a case in which the owner of the vessel in question owns only one vessel. It has also been averred that the vessel in question has allegedly changed hand in the month of July; 1980, while the vessel was abreast along side the damaged vessel. It has been urged by the learned counsel for the plaintiffs that if the order of arrest will be recalled without any security, the plaintiffs' suit will be defeated as it is a suit against the vessel and not against its owner, and that once the vessel goes out of the jurisdiction of this Court without furnishing any security, no effective decree can be passed. It will suffice to observe that in admiralty case if the suit claim falls within the compass of admiralty jurisdic--petition, the relief of arrest of the vessel sued for is granted normally a F enunciated in the above two English Cases unless the claim in suit does not fall within the ambit of admiralty jurisdiction or the Court comes to the conclusion that the plaintiffs' claim is bogus on the face of it and is not bona fide.
7. (a) Reverting to Mr. Sharaf Faridi's contention that this Court cannot entertain the above suit under its admiralty jurisdiction as the claim does not fall within the ambit of section 7 of the Admiralty Courts Act, 1861, it may be observed that Mr. Sharaf Faridi has invited my attention to the fact that the alleged losses on account of fire had not occasioned on account of any collision of the vessel or has not been caused by the vessel, In this regard he has referred to the case of The Vera Cruz (1), at page 270 and also at page 386, the case of The Theta (2), the case of Currie v.
Machnight (3), and the case of "Telena" (4). On the other hand Mr. Kazmi in reply to the above contention has urged that the above cases relied upon by the learned counsel for the defendants relates to Maritime Lien only and not to any other type of claim triable as an admiralty action. It was further submitted by him that the plaintiffs' suit is not solely based on the right of Maritime Lien.
It was also urged by him that in the case of The Vagon Mound, referred to in Carver Carriage by Sea, X11 Edition, Volume II, in para. 1424 at page 1202, the Privy Council lately has taken a contrary view to the above-cited cases.
(b) Reverting to the case of "The Vera Cruz", it may be observed that the action was brought in rem against the owner of the above vessel and her freight and cargo by the wife of one William Steward to recover damages under Lord Campbell's Act for the loss of lives of her husband and son, who were drowned in consequence of a collision between the above vessel and a British vessel, the above vessel was arrested at Liverpool in July, 1883. The counsel for the defendant contended that the admiralty division had no jurisdiction to entertain the action but Butt, J. Held that it was competent in view of certain rulings binding on his Lordship. The above order/judgment was set aside by the Court of Appeal and it was held that section 7 of the Admiralty Act, 1861, providing that the Court "shall have jurisdiction over any claim for damage done by any ship" did not cover the aforesaid claim as the damage was not caused by the vessel. The above judgment of the Court of Appeal was upheld by the House of Lords by the judgment reported at page 386 of the above 5 Aspinall's Reports of Maritime Cases.
(c) With reference to the case of "The Theta" it may be stated that one William Yule, Chief Engineer of a steamship named "Faithful" on the port of Liverpool brought an action against the owner of the aforesaid vessel "Theta" to recover damages for injuries sustained by him through falling down on hold of the above vessel Theta, while trying to cross, he got on the board of the said vessel, which was lying close to his vessel. It was held by Bruce, J. That the above claim did not fall within the ambit of section 7 of the Admiralty Court Jurisdiction Act, as the damage was not caused by the vessel. The learned Judge observed that "the ship cannot be said to be the active instrument of the damage done."
'(d) With reference to the case of Currie v. Machnight, it may be stated that the facts were that an action was brought to establish a Maritime Lien against the ship "Dunlossit" by reason of damage sustained by another vessel on account of cutting of the cables of- a third vessel named "Easdale" by the crew of the aforesaid ship "Dunlossit". It was held that the act done was done in order to enable the ship "Dunlossit" to start, but it does not make it an act of the aforesaid ship as it could not be construed as a fault of the vessel. In this view of the matter, it was held that the plaintiff could not claim Maritime Lien and the action was not sustainable under section 7 of the Admiralty Court Act.
(1)5ARMC270 (2)7AR MC480
(3) A R M C 193(4) IL R 1929 Cal. 404
(e) Reverting to the case of `Telena' of the Calcutta High Court, it may be stated that the above vessel discharged a large quantity of oil, which floating on the deck water became ignited resulting .In considerable damage to another steamship named "Croydon". While considering the question, as to whether the above damage would be said to have been done by a ship Harington, J. Held that the fire was not the direct act of the vessel "Telena" and that the plaintiff cannot claim Maritime Lien.
6. In regard of the above-cited cases referred to hereinabove in paras. 7(b) to (e), it will suffice to observe that prima facie the above cases related to the enforcement of the right of Maritime Lien, whereas the instant snit is not solely based on Maritime Lien. It may be pertinent to refer to para. 20 of the plaint which reads as follows; "That the suit is in rem and the defendant is liable to compensate the plaintiff for all the losses caused to the cargo and the plaintiff's vessel. Without prejudice to aforesaid, the plaintiff has also a Maritime Lien on the defendant."
A perusal of the above-quoted para. Indicates that the plaintiffs have not solely based their claim on Maritime Lien. It has not been disputed by Mr. Sharaf Faridi that the Admiralty Court Act, 1861 not only covers the case of Maritime Lien but also other cases. Furthermore, the instant case is distinguishable from the above-cited and discussed English cases in--asmuch as in the instant case the sparks were allegedly escaped from the funnel of the vessel which allegedly directly caused fire.
(g) Reverting to case of the Vagon Mound referred to in the Carver Carriage by Sea Act, mentioned hereinabove, it may be stated that the facts were that oil on water having overflowed by the carelessness of the ship's engineer was set alight causing damage to a wharf and two other vessels. It was held that the ship-owners were liable in negligence. It may be observed that there is no discussion on the question as to whether the above loss can be said to have been caused by the ship, and, therefore, it cannot be urged that a contrary view to the above-cited and discussed cases has been taken by the Privy Council.
8. (a) Reverting to Mr. Sharaf Faridi's contention that as the case is based on a tort and that in order to fix liability on the vessell, the Court will have to fix liability of the owner of the same and that as the owners are not parties to the above suit, no judgment can be passed, it may be observed that Mr. Sharaf Faridi has relied upon the case of "The Parlement Begle" 4ARMC234In the above case the owner of the vessel named Darling instituted action in Admiralty Division in England, against the above vessel, a writ was served but no appearance was made. Consequently, judgment with costs was entered for the plaintiff: After that a warrant of arrest was issued. The Attorney-General filed an information and protest to the effect that the afore--said action in admiralty was not competent as the vessel belonged to a foreign sovereign, namely "His Majesty The King of Balgium". The above objection was overruled by a learned Single Judge of the Admiralty Division. However, on appeal the above objection was accepted and judgment was set aside. It was held that a suit in rem, though preliminary proceeded against the ship,, or res, is indirectly a process compelling the appearance of the owner to ' defend his property, and, therefore, an admiralty suit where the ship of res is the property of a foreign sovereign State against whom action will not lie by reason of International Law or the Comity of Nations, is not competent. In my view the facts of the above case have no application to the instant case inasmuch as the defendants' ship does not belong to any foreign sovereign or foreign State, who is exempted from being sued in Pakistan. . The ratio decidendi of the above English case seems to be that what cannot be done directly, cannot be done indirectly.
(b) It may be pertinent to observe that an admiralty suit against a vessel alone, is a suit in hem against the vessel, in which the owner of the vessel is not personally liable in execution of a decree passed against the vessel. ,In my view an action in hem against a vessel is distinct from the personal liability of the owner for all intents and purposes. In this regard reference may be made to the relevant portion of the aforesaid cited case of Karachi 1980, namely, Messrs Ahmad Investment Limited v. m. v. Sunrise, wherein Nusrat, J. Made following observations :- "The admiralty jurisdiction exercisable by this Court is the same which was formerly exercised by the High Court of Admiralty in England. Ac--cording to practice in England, the action in hem in the admiralty juris--diction 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 writ (Halsbury's Laws of England, 4 Edn. Vol. 1, paras. 360 & 365 at pages 245 and 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 any time before judgment. Further, even a person not named in the writ could intervene in an admiralty action in hem and appear by leave of the Court (Halsbury's Laws of England, 5th Edn., Vol. ), para. 375). In the case of the Banco (1) Lord Denning M. R. Observed as under .
When a plaintiff brings an action in hem the jurisdiction is invoked when the writ of arrest is executed. The reason is because it is an action in rem against the very thing itself, and does not take effect until the thing is arrested."
(c) It may also be pertinent to refer to the well-known book on Private International Law by Cheshire VIth Edition at pages 109 and 110, the relevant portion reads as follows;
(ii) Actions in hem: hem was one brought in order to vindicate a jus in hem, i.e. a right such as ownership available against all persons, but the only action inem known to English law is that which lies in an Admi-- ralty Court, against a particular res, namely a ship or some other res, such as Cargo, associated with the ship. To take one instance, the rule has long been, that a maritime lien attaches to and remains enforceable against a ship that collides with and injures another. Such a lien `is a priviledge claim upon a vessel in respect of service done to it or injury caused by it, to be carried into effect by legal process. It is a right acquired by one over a thing belonging to another a 'jus inth re aliena.' That the ship is the defendant in and brought to enforce the lien is underlined by the legal process available to the plaintiff. After obtaining the issue of a summons in hem, he may procure a warrant for the arrest of the ship which is then affixed by the Admiralty Marshal to the main mast, being later replaced by a true copy.
'The action is in hem, that being, as I understand the term, a proceeding against a ship or other chattel in which the plaintiff seeks either to have the res. Adjudged to him in property or possession, or to have it sold under the authority of the Court, and the proceeds, or part thereof, adjudged to him in satisfaction of his pecuniary claims.'
If a sale is ordered, the judgment operates in hem in the sense that it divests the property in the ship from the owners and confers an absolute title upon the purchaser, good against all persons; "In this form of action, then there can be no doubt what constitutes jurisdiction ratione personae.
The person is the ship, and therefore it is essential that it should be 'so situated as to be within the lawful control of the State under the authority of which the Court sit'. In a word, the Court is competent to entertain the action if the ship lies within the territorial waters of England."
(d) I am, therefore, tentatively of the view that the plaintiffs' suit cannot be held to be incompetent because of non joinder of the owner of the vessel. .
9. It was also urged by Mr. Sharaf Faridi that the present defendant is not liable as in para. 'C' at page 2, the plaintiffs in their objections to the aforesaid Deputy Conservator's Inquiry Report has averred that the K. P. T, is liable for the reason that the vessel was brought along side the damaged vessel under their order, and also because it has also been averred that the K. P. T. Shall be impleaded as one of the defendants to the suit. At this stage it will suffice to observe that the above averment in the objections to the Inquiry Report cannot in any way modify or vary the averments of the plaint. The plaint of the suit as it stands today discloses an alleged cause of action against the vessel alone and not against the K. P. T. And, therefore, till the time the plaint is amended in accordance with law, I cannot hold that the plaintiff's shall have no cause of action against the present defendants upon impleading of the K. P. T. As a party to the suit. However, it will be open to- the defendant to move appropriation if such occasion arises and if so advised.
10. (a) Reverting to the question as to amount of security which should be asked as a condition for releasing the vessel, it may again be observed that the suit is for a sum of Rs. 2,45,75,481.30. As the plaintiffs at the most can demand the security of the value of the arrested vessel and not for the entire suit amount, by my order dated 6-10-1980. I directed the parties to file affidavits alongwith the supporting documents to disclose the value of the arrested vessel. The defendants have filed an affidavit stating therein that the vessel was sold while at the Karachi Port on 18-7-1980, for U. S. $ 3,30,000 equivalent to about Pakistani Rs. 34,58,000 and that whereas according to the prevailing rate for scraped vessells, namely, U. S. $. 170 per L. D. T., the value of the vessel as scraped vesses comes to Rs. 35,01,966 because gross tonnage of the defendant's vessel is Rs. 3,709.97, its not registered tonnage is 2,1.59, and whereas its dead weight is 4,855 tons, and its L. D. T. Is 2,085.
Whereas the plaintiffs have filed two valuation certificates, namely, Lloyd's Agents, Messrs Mackinnon Mackenzie & Company of Pakistan Limited's certificate dated 8-10-1980 certifying the valua--petition within region of U. S. $ 5,50,000 to U. S. $. 6,00,000 equivalent to about Rs. 55,00,000 to Rs. 60,00,000. f2). The Valuation Certificate dated 8-10-1980 issued by Messrs Oceanic Surveyors stating approximate value as around U. S. $ 0.6. Millions to 0.65 Millions equivalent to about Rs.
60,00,000 to Rs. 65,00,000.
(b) However, it was urged by Mr. Sharaf Faridi, that the security can only be ordered for -- 29,672 equivalent to Rs. 6,82,456 for the reason that the fire had taken place without the fault and privity of the owner of the vessel and, therefore, section 503 of the Marchant Shipping Act, 1894 shall come into play, which restricts the liability of the owner in case of occurrence of loss without their actual fault or privity in respect of losses of, or damage to vessel, goods, merchandize or other things to the extent of $ 8 for each ton of their ship's tonnage. Section 503(2)(a) of the above Act explains the tonnage as gross tonnage without deducting. Of engine room as registered. His further submission was that the registered tonnage of the vessel in question is 3,709 and if the above tonnage is to be multiplied with 8, the figure given hereinabove would be reflected. Since I have already tentatively held that the instant suit is a suit against the res (i.e. against the vessel) and is not against the owner, in my tentative view the provisions of section 303 of the above Act cannot be pressed into service.
11. It was also urged by Mr. Sharaf Faridi that in spite of the expiry of more than two months from the date of the incident in question the plain--tiffs have not furnished full particulars of the loss as according to the aver--ments in the plaint the figures are subject to variation after the survey of the loss. It is true that there is no survey report on record to indicate the actual alleged loss suffered on account of the above fire because of damage to the vessel or to the cargo. Mr. Kazmi has referred to the Telex dated 4-8-1980, addressed to the plaintiff's agents in Pakistan namely, P.N.S.C.
From Messrs Richard Hogg International London, which only indicates that the plaintiffs have been asked to take security to the extent of 40 % of the CIF values from the consignees of the cargo for the general average claimed by the plaintiffs from the consignees. The above Telex does not provide the required particulars. Since the plaintiffs have claimed definite amount in the plaint, at this stage I cannot hold as to whether they will be able to substantiate their claim. As there are discrepancies in the figures of the valuation of the vessel furnished by the- parties and as the above figures are 'approximate, in my view it will be just and proper to ask for a security of round figure of Rs. 50 lacs.
12. Mr. Sharaf Faridi, learned counsel for the defendants has also made a passing reference to his contention that in view of the fact that plaintiffs have claimed general average from the consignees of the cargo, they cannot claim the loss in respect of the cargo from the defendant, but no full-fledged arguments were advanced on the above aspect. In any case, it will be an issue at the trial of the above suit. Since the alleged loss on account of the alleged damage to the vessel and the alleged loss of profit claimed in the suit come to more than Rs. 50 lacs for which I am ordering for furnishing of security, the above contention would have no effect on the amount of the pro--posed security.
0. Mr. Sharaf Faridi has orally prayed for that the plaintiffs may also be directed to furnish security for the loss of earning on account of the arrest of the vessel on the basis of the daily earning of the said vessel mentioned by the Lloyd's Agent in their aforesaid valuation certificate dated 8-I0-1980.
Since no counter-claim of the defendant at present is pending before this Court, in my view it would not be proper to order security for a claim, which is not pending before this Court. However, it will be open to the defendant to move appropriate application for the aforesaid relief in case the defendant files a counter-claim.
14. In view of the above discussion I order that the vessel in question shall remain under arrest till the time the defendant furnishes security to the satisfaction of the Nazir of his Court to the extent of Rs. 50 lacs (Rupees fifty lacs).
The learned counsel for the parties have submitted that both the parties are ready to proceed with the suit after completing the preliminaries within four weeks. I would, therefore, order that the office may put up the matter before my Lord the Chief Justice for seeking order for placing the above case before any learned Single Judge sitting single, as I am on the Bench and it will not be possible to finalize the above case expeditiously. The order may also be solicited as to the period within which the above suit is to be fixed for regular hearing.