' MUHAMMAD TASNIM, J.---Plaintiff has filed this suit under section 3(2) of the Admiralty Jurisdiction of the High Court's Ordinance 1980 against defendant No,1, Vessel, defendant No,2 owner of the Vessel, defendant No,3 "Time Charter" and defendant No,4 being fuel agent, with the following prayers:--
(i) To deciare that the piaintiff is entitied to recover the totai ciaim outstanding/dues of US $ 363,062 against suppiy of Bunker/Marine Fuei and direct the defendants' above named to make payment thereof to the piaintiff.
(ii) To direct the defendants to make payment of US$363,062 pius markup / interest/ damages / compensation @ US $ 15% quarteriy over the totai amount, inciuding compound interest untii the realization of the amount.
(iii) To issue warrant of arrest of the defendant No,1, which may oniy be aiiowed to ieave the port oniy on furnishing security to the extent of the amount ciaimed in suit, and if no security is furnished, the defendant No,1 be soid and the decretai amount be paid to the piaintiff out of saie proceeds of the defendant No,1 as weii from other assets of defendants Nos.2, 3 and 4.
(iv) Cost of suit may aiso be awarded to the piaintiff.
(v) Any other reiief which this Hon'bie Court may deem fit and proper in the circumstances of the case.
2. Brief facts of the case' for the disposal of this application are that the plaintiff is a sole proprietorship concerned and supplying Bunker/Marine Fuel to Vessel. It is claimed that in May, 2011 plaintiff supplied 300 M.T. Bunker to defendant No,1 Vessel at Karachi Port. It is the case of the plaintiff that Bunker was supplied to defendant No,1 Vessel which was acknowledged by the master of the Vessel and invoice was accordingly sent which was also acknowledged but payment was not made to the plaintiff by the defendants; in the circumstances present suit was filed. Along with the suit an application under Rule 731 of the Sindh Chief Court Rules for arrest of Vessel being C.M.A.
No,277 of 2011 was also filed. The aforesaid application was taken up in Court on 19-11-2011 and the Court while issuing notice to the Defendants for 24-11-2011 ordered that defendant Vessel shall remain arrested subject to furnishing of guarantee or surety to the satisfaction of the Nazir of this Court in the sum of at US $ 195,832 or equivalent. The Port Authorities were directed not to allow the Vessel to sail from Karachi Port without permission of this Court.
"
3. After service of the notice counter affidavit on behalf of defendants Nos.1 and 2 was filed, admitting therein supply of Bunker to defendant No,1 Vessel on 2-6-2011, however, it is stated that though Bunker was supplied to defehdant No,1 Vessel but order for such supply was not made by defendant No,2 who is its registered owners. It was further stated that at the relevant time defendant No,1 Vessel was under Time Charter" to defendant No,3 and the responsibility for the supply of Bunker to the Vessel as per "Charter Party" as well as the custom the shipping trade was that of defendant No,3 the Time Charterer. It was further stated in the counter affidavit that since defendant No,3 was Time Charterer at the relevant time it was liable for making payment for the Bunkers supplied under "Charter Party" as well as under custom of shipping trade and not the defendant No,2 the registered owner of the Vessel. It was further stated that plaintiff had no claim in personam as against defendant No,2 the registered owners, consequently the plaintiff shall have no action in rem as against the defendant No,1 Vessel and the Vessel could not have been sought to be arrested under the provisions of Admiralty Jurisdiction of High Courts Ordinance, 1980.
4. Learned counsel for the plaintiff has submitted that the plaintiff had supplied the Bunkers to defendant No,1 Vessel at the request of defendant No,4 and such supply of Bunkers was acknowledged by the master of the ship. According to learned counsel for the plaintiff when payment for such Bunkers was not made by the defendants, the ship was rightly arrested till the payment is made to the plaintiff. Learned counsel submitted that since Bunkers were supplied to defendant No,1 Vessel the owner of such Vessel is liable to pay the dues of the plaintiff, inspite of the fact that at the relevant time Vessel was on charter to defendant No,3. In support of his contention learned counsel placed reliance on the case of Messrs GLOBAL VENTURE LTD. v. M.V. RIO G. And 2 others (2001 YLR 1115) and submitted that earlier order dated 19-11-2011 regarding the arrest of Vessel be confirmed.
5. Mr. Shaiq Usmani learned counsel for the defendants Nos.1 and 2 has submitted that under the law unless the plaintiff has a claim in personam against the owners of the Vessel, the claim in rem against the Vessel cannot be maintained. Learned counsel further submitted that at the relevant time defendant No,1 Vessel was on "Time Charter" with defendant No,3 and as per terms of the "Charter Party" defendant No,3 was liable to pay Bunker charges. Learned counsel for defendants Nos.1 and 2 placed reliance on meaning of "Time Charter" as mentioned in Marine Encyclopedic Dictionary 2nd Edition, which provides as under:-- "Time Charter (1) The hiring of a ship from a shipowner for a period of time. Under this type of contract, the shipowner piaces his ship, with crew and equipment, at the disposai of the charterer, for which the charterer pays hire money, charterer decides the type and quantity of cargo to be carried and the ports of ioading and discharging. He is responsible for supplying the ship with Bunkers and for the payment of cargo handling operations, port charges, pilorage, towage and ship's agency. The technical operation and navigation of the ship remain the responsibility of the shipowner. A ship hired in this way is said to be on Time Charter. (2)
Abbreviation for Time Charter party."
' Mr. Shaiq Usmani learned counsel for defendants Nos.1 and 2 also placed reliance on the following cases:--
(a) Unreportgd order passed in Admiralty Suit No,21 of 2006 dated 13-11-2006.
(b) Messrs SUN LINE AGENCIES LTD v. VESSEL M.V. "PSILORITIS' and 2 others (1984 CLC 1553)
(c) Messrs V.N. Lakhani and Company v. M.V. LAKATOI EXPRESS and 2 others (PLD 1994 SC 894),
(d) Messrs AL-YOUSUF BAGHPATI and Co. And another v. M.V. NARAN and 3 others (1992 CLC 833).
(e) Medway Drydock and Engineering Company Ltd. [p. The Andrea Ursula (1971) 1 Lloyd's Law Reports 145.
6. I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar.
7. From the perusal of plaint it appears that plaintiff has shown the Vessel as defendant No,1, owner of the Vessel as defendant No,2, Time Charter" as defendant No,3 and fuel agent as defendant No,4.
No doubt it is an admitted position that Bunkers were supplied to defendant No,1 Vessel at the request of defendant No,4 and the same were acknowledged by the master of the Vessel and as per plaintiffs claim payment for such Bunkers were not made by the defendants Nos.3 and 4. Along with the counter affidavit the defendants Nos.1 and 2 have filed a certificate of MALTA REGISTRY showing the ownership of defendant No,1 by defendant No,2 as also copy of "Charter Party" dated 9-11-2010 between the owners of the ship and defendant No,3. With regard to Bunker the charter party provides the following clause:-- "BUNKERS"
"Charterer to take over all Bunkers on delivery (qty. To be advised any pay owners actual cost as per owners last Bunker invoice. Owners to take over all Bunkers on Redelivery qty to be about the same as on delivery. Price on redelivery to be as per charterers last invoice. Charterers to pay for Bunkers on delivery together with first full hire payment.
' To owners. Charterers aiways to suppiy Bunkers at aii times in accordance with MARPOL ruie 6 and its future subsequent amendments. Charterers to be aliowed to deduct the estimated.
' Cost of Bunkers onboard at time of redelivery from final hire payment subject to advising owners such estimation and receiving their approval which shall not be unreasonably withheld.
' In view of above it is an admitted position that at the relevant time when Bunkers were supplied to defendant No,1 Vessel it was under the control of charterer the defendant It is also an admitted position that defendant No, 2 did not make any order for supply of Bunkers to defendant No,1 Vessel but the same was supplied at the request of defendant Provisions of section 4(4) of Admiralty Jurisdiction of High Courts Ordinance 1980 have been dealt with by a learned Single Judge of this Court in the case of SUN LINE AGENCIES LTD. (supra) wherein the learned Single Judge (as he then was) while considering the provisions of section 4(4) of the Ordinance has held as under:- "In the light of the above discussed English cases I have carefuily considered the provisions of section 4(4) of Ordinance XLII of 1980 and I am of the view that before an action in rem against a ship is instituted under the aforesaid provision of iaw, it must be shown that (i) the claim in the suit fails in any one of the categories of cases mentioned in ciauses (e) to (h) and (j) to (q) of subsection (2) of section 3 of the Ordinance;
(ii) the claim arises in respect of a ship; and on the date of accruai of cause of action the person who wouid be liable in an action in personam was either the owner or charterer or in possession or in controi of the ship. If aii the above mentioned three conditions are shown to exist, then such a ciaim is aiso enforceabie in an action in rem against that ship or any other ciaim is also enforceable in an action in rem against that ship or any other ship beneficially owned as respect the majority shares therein by that person on the date of fiiing of the claim in rem irrespective of the fact whether the claim gives rise to a maritime iien on the ship or not under the Admiralty jurisdiction of this Court. A Time Charterer on a charterer by demise, however, in my opinion, do not fall in .The category of a person as they only beneficially possess the ship for the time being subject to the validity of the charter party agreement and by that reason they do not acquire any right of ownership in the majority shares of that ship. In the case before me it is an admitted position that defendant No,2 is only the Time Charterer of the ship 'Psiloritis", as is evidence from the copy of charter party agreement filed with the counter affidavit of master of ship. In fact the case was argued by the learned counsel for the plaintiff on this basis before me.
The ownership of the ship is claimed by Filo Shipping Maritime S.A. (Liberia) in 100%. It has not been shown that the ciaim of ownership of ship made in the counter affidavit is false or illusory.
From the averment in plaint it is quite clear that the only person who would be liable for the claim in suit is an action in personam is defendant No,2. It is not the case of Plaintiff that if an action in personam is brought against the real owner ' of ship, he would be liable for the claim in the suit.
' I am therefore, of the view that no action in rem is maintainable against defendant No,1 in the circumstances and accordingly vacate the order of arrest passed on 19th January, 1984, there wiii however, be no order as to costs, in the circumstances of the case."
' Similarly in the case of A/S Dan-Bunkering Limited v. M.V. SALAM in Admiralty Suit No,21 of 2006 another learned Single Judge (as he then was) while dealing with an application under Rule 731 of Sindh Chief Court Rules in somewhat similar circumstances has held as under:-- "I have gone through all these documents and observed that admittedly claim was firstly raised against the charterer. Notwithstanding the fact the names of the owner and Vessel have also been mentioned in the invoice, but aii the documents shows that the charterer was the person who ordered for suppiies and goods were deiivered on board. The section 4(4) of the Ordinance provide the guide iine as to how an action in rem can be enforced against a ship. The said section being necessary is quoted beiow.
4. In the case of any such claim as is mentioned in clauses (e) to (h) and (i) to (q) of subsection
(2) of section 3, being a claim arising in connection with a ship, where the person who wouid be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer or, 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 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.
' The section is specific and provides, that the action in personam can only be converted in rem when it fulfils, the requirement of subsection (4-a) which requirement is missing in this case, therefore, ship cannot be arrested. Both the learned counsei has relied upon 1994 SCMR 894 besides other authorities, therefore, relevant portion of that citation is worth noting and reproduced below.
5. The key words in the provision are beneficially owned as respects majority shares. The person liable for the claim in an action in personam should beneficially own majority shares. It is on compliance with this condition that action in rem for arrest of a sister Vessei can be fiied. Lord Denning in I Gongreso dei Partido (1981) 1 All Engiand Law Reports 1092 at 1099), while considering the effect of section 3(4Xb) of Administration of Justice Act 1956 of Britain which is similar to section 4(4) of the Ordinance, with a difference so far the beneficial ownership as respect of the shares is concerned, as would be pointed out later, observed as follows:- "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 the offending ship. You have then to discover a person who would be liabie on the ciaim 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 inquire whether that person at that time beneficially owned any other 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."
' All the documents are admittedly to the extent that the supplies have been made to the charterer and not to the owner nor the ship was owned beneficially by the charterer when the supplies were made rather it was owned by defendant No,2, as evident by the certificate of Jordanian ship Registry, according to which 100% share are owned by the defendant No,2 while.
Plaintiff was in the knowledge that the ship was with the charterer and invoices were also raised against it. Therefore, this application is dismissed."
8. In the case of Messrs V.N. Lakhani and Company (supra), the honourable Supreme Court of Pakistan while dealing with section 4(4) of Admiralty Jurisdiction of High Court Ordinance 1980 held as under:-- "In our view the learned Judges have taken correct view by excluding the charterer, be it Time Charterer or charterer by demise, from the Category of persons who beneficially own majority shares in the ship sought to be arrested. The precondition for invoking jurisdiction under section 4(4Xa)(b) is that the person who would be liable to the claim in an action in personam was, when the cause of action arose, should beneficiaiiy own majority shares in the ship only then sister ship can be arrested. If we take the view that the words "beneficiaily shares' will be completely redundant. The ownership of majority shares may be beneficiai or iegai is a condition precedent for invoking the jurisdiction. It is a weii-settied principle of interpretation of statute that each and every word of a statute has to be given its meaning and no part of a statute can be treated as redundant or surpius. It, therefore, seems, clear that the legisiature intended to give an effective meaning to the words `as respects majority shares' which can only be attributed to the owners. The petition is dismissed."
9. In view of above settled legal position it can safely be concluded that in the present case subject Bunkers were supplied by the plaintiff to the charterer at the request of defendant No,4. It is also apparent that Bunkers were not supplied at the request of the owner of the Vessel the defendant No,2. It is an admitted position that defendants Nos.3 and 4 were not the owners of the Vessel.
Under the terms of "Charter Party" the charterer was under obligation to make payment of the subject Bunkers to the Plaintiff and not defendants Nos. I and 2. As pointed out above that defendant No,1 Vessel was owned by defendant No,2 as is evident from the perusal of certificate of MALTA REGISTRY which shows that defendant No,1 is solely owned by Defendant No,2. It is also an admitted position that plaintiff had the knowledge that the ship was on "Time Charter" with defendant No,3. The plaintiff has failed to make out any case in personam against the owner of Vessel i,e, defendant No,2, the claim in rem against defendant No, I Vessel could not be maintained in the circumstances of the case. Accordingly no case against defendants Nos.1 and 2 is made out.
The application under disposal is liable to be dismissed. Consequently the application in hand is hereby dismissed and the order dated 19-11-2011 is hereby recalled. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.