Gulzar Ahmed, J--By this appeal, the appellant has challenged the order dated 6-11-2010, passed by a learned single Judge in Admiralty Suit No. 12 of 2010, by which the application seeking arrest of the Respondent No. 1 ship was dismissed as not maintainable.
2. The facts as argued by learned counsel are that the appellant has entered into an agreement for sale of its ship M.T. Kadriah-I with the Respondents Nos. 2 and 3. The said agreement of sale apparently did not materialize for non-compliance of obligations by the Respondents Nos. 2 and 3, pursuant to which the appellant entered into an agreement for sale of the said ship with another party. While the appellant claims to have sold the said ship to another party, Respondents Nos. 2 and 3 are alleged to have given notice of caution regarding their claim over the said ship. Learned counsel has contended that appellant has suffered loss on account of default of Respondents Nos.
2 and 3 and in this respect has filed its claim for damages in the Court in London and that claim of appellant being covered by the provisions of Section 4(4)(b) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, the respondent ship is liable to be arrested and in support of his submission has relied upon the case of M.V. Elisabeth and others v. Harwan Investment and Trading (Pvt.) Ltd. (1993 Supp (2) Supreme Court Caess 433) and Atlantic Steamer's Supply Company v. M.V. Titisee and others (PLD 1993 SC 88).
3. We have considered the submission made by learned counsel and have gone through the record of the case.
4. The provisions of sections 3 and 4 of the Admiralty. Jurisdiction of High Courts Ordinance, 1980 (the Ordinance) are as follows:-- "3. Admiralty Jurisdiction of the High Court.-- (1)The Sindh High Court and the High Court of Baluchistan shall have the exercise, within their respective territorial jurisdiction, Admiralty jurisdiction as is in this Ordinance, provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined.
(2) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, questions or claims--
(a) Any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship;
(b) any question arising 'between the co-owners of a ship as to possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage done by a ship;
(e) any claim for damage received by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for which wrongful acts, neglects or defaults, the owners, charterers of persons in possession of control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship; (g)any claim for loss of or damage to goods carried in a ship; (h)any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship; (i)any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters of internal waters or in a port, including any claim arising by virtue of the application by or under Section 12 of the Civil Aviation Ordinance, 1960, (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo; (j)any claim in the nature of towage in respect of ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port;
(k) any claim in the nature of pilotage in respect of a ship or an aircraft;
(1) any claim in respect of necessaries supplied to a ship; (m)any claim in respect of the construction, repair or equipment of a ship or dock charges or dues; (n)any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be 'recovered; (o)any claim by a master, shipper, charterer or agent in respect of disbursement made on account of a ship; (p)any claim arising out of an act which is or is claimed to be a general average act; (q)any claim arising out of bottomry or respondentia; (r)any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise, or for the restoration of a ship or any such goods after seizure, or for Doritos of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which has vested in the High Courts as a Court of Admiralty immediately before the commencement of this Ordinance, or is conferred by or under any law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.
(3) The jurisdiction of the High Court under clause (b) of subsection (2) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the Court thinks fit.
(4)The reference in clause (i) of sub-section (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel of wreck as, under any law for the time being in force, are authorised to be made in connection with a ship or an aircraft.
(5)The preceding provisions of this section apply:-- (a)in relation to all ships or aircraft, whether Pakistani or not and whether registered or not and whether the residence or domicile or their owners may be; (b)in relation to all claims, wheresoever arising including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land; and (c)so far as they relate to mortgages and charges, to all mortgages and charges created under the foreign law: Provided that nothing in this sub-section shall be construed as extending to cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923).
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 sub-section (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 sub-section
(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 of 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 shares 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 the 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 that aircraft if at the time when the action is brought it is beneficially owned by the person who would 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 a 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 sub-section (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 claim in, the proceeds of sale.
(9)In determining for the purposes of sub-sections (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 or business within Pakistan.
5. From reading of above provisions it is apparent that provision regarding invoking an action in rem against a ship are laid down in Section 3(2) of the Ordinance, and its various sub-clauses, which all deal with question of ownership, mortgage, damage done, damage received, loss of life, personal injury, damage to goods, claim arising out of agreement relating to carriage of goods, salvage of life and property, towage, supplies, construction, repairs, claim of master and crew, disbursement, general average, claim arising out of bottomry or respondent; forfeiture or condemnation of goods etc: which all have to do with a delinquent or defaulting ship and in this respect an action against res is permissible in law.
6. In the case of Messrs V.N. Lakhani and Company v. M.V. Lakatoi Express and 2 others (PLD 1994 SC 894) while dealing with application of Section 4(4) of the Ordinance, the Hon'ble Supreme Court has observed as follows:-- "In applying Section 4(4) one has to take into consideration the existing facts at the time when cause of action arose in connection with the offending ship. In order to invoke the jurisdiction, the plaintiff has to establish that:-- (1)the claim falls in any of the clauses as mentioned in clauses (e) to (h) and (j) to (q) of sub- section (2) of Section 3 and arises in connection with a ship (2)when the cause of action for action in personam arose.
(3)the person liable in an action in personam at the time when such cause of action arose, was the owner or charterer of or in possession or in control of the offending ship.
(4)the offending ship or any other ship which is sought to be arrested, at the time action is brought is beneficially owned as respects majority shares by the person liable on the claim in an action in personam."
7. In the present case the claim of appellant does not arise out of any of the conditions provided in Section 3 (2) of the Ordinance, as the appellant has no claim of a nature provided in Section 3(2) of the Ordinance, upon or against any of the ship that may be owned or possessed by Respondents Nos. 2 and 3. The claim of the appellant is that it has suffered damages on account of agreement made by it for selling of its ship 1\4,T. Kadriah-I to Respondents Nos. 2 and 3, who have failed in their obligations resulting in selling of said ship by the appellant to some other party. Such damages apparently are not covered by the provisions of Section 3(2) of the Ordinance, and cannot, in our view, be enforced in rem against Respondent No. 1 ship, said to be owned by Respondents Nos. 2 and 3.
8. After hearing the learned counsel by a short order passed on 13-11-2010, the appeal was dismissed, above are the reasons for the same.