MUHAMMAD FAISAL KAMAL ALAM, J.--This is an admiralty suit for recovery of US Dollars 117,607.91/- against the Defendants. The facts leading to filing of present proceeding as averred in the plaint are that the Plaintiff is a foreign entity owned by the Government of United Arab Emirates rUAE1 and has / had a flour and animal feed factory at Abu Dhabi.
2. In November, 1990 the Plaintiff imported two consignments accumulative value whereof at that time was US$ 87,439.57 C&F (Cost and Freigift) Abu Dhabi. The consignments were of- A. Sunflower seed extraction: Quantity-9831 bags: Weight 499.5 M. Tons and, B. Oyster Shell meal: Quantity-5280 bags: Weight-263.770M. Tons.
With regard to the above cargo following two Bills of Lading were issued:
(i) No,BD/01/ABD-01, dated 31.12.1990, and,
(ii) No,BD/01/ABD-04, dated 11.01.1991.
1. The aforesaid consignments were shipped on board the Defendant No,1 Vessel M.V 'BOUDAA-1'
(hereinafter referred to as the "Vessel") from the port of Bombay, India, on or about 11.01.1991 by the Shippers, Karimjee Limited of Bombay in pursuance to a contract of carriage for delivery at Abu Dhabi Port. As per the Plaintiff and also mentioned as one of the terms of the afore referred Bills of Lading, the freight was prepared in respect of the above consignments and that is why Defendants Nos.1 and 2 issued two clean Bills of Lading, which are exhibited as Exhibits. 6-P/4 and P/5 (Pages- 49 to 51 of the Evidence file).
4. It is not denied by Defendants that Plaintiff paid the entire price of the cargo to sellers through Letters of Credit, No, 46910/MBA/90 and 46911/MBA/90 both dated 29.10.1990.
5. That during its outer anchorage off Karachi, some dispute arose between Defendants Nos.2 and 3 and other parties, due to which the cargo of Plaintiff, which was to be discharged at Abu Dhabi Port, could not be discharged within the stipulated time. During such litigation between third parties and the present Defendants, the Vessel also got arrested, inter alia, to secure recovery of port disbursements. One of the main causes for bringing the present action was that the Defendant No,3 acting as attorney of Defendant No,2 addressed a letter dated 13.07.1991 (Exhibit 53- A, page 137 of the Evidence File) to the Plaintiff, wherein Defendant No,3 [M/s SHIPKO] acting as agents of Defendants Nos.1 and 2. Refused the delivery of above subject cargo at Abu Dhabi Port and instead called upon the Plaintiff to take delivery of its cargo from Karachi after payment of Carrier's all dues and payments.
6. In paragraph 15 of the amended plaint, the Plaintiff amended the loss occasioned due to transshipment besides pleading other loss and damage a break-up of which is as under:--] Loss due to fall in market value of cargo US$15,000.00 Depreciation in value of cargo due to deterioration of cargo 20% less.US$ 17,487.91 Total loss of 716 bags of Sunflower see extractionUS$ 4,547.00 Loss due to closure of factory due to non- delivery of cargoUS$ 30,000.00 LOSS OCCASIONED DUE TO TRANSSHIPMENT Barge hire 9,000.00 Stevedoring cost for discharging6,000.00 Stevedoring cost for Loading6,000.00 Wharfage 560.00 Communication 600.00 Freight 18,013.00 Agency Charges 1,400.00 Disel, Oil and Repairs 1,000.00 Legal expanses 7,000.00 Clearing Agents 1,000.00 TotalUS$117,607.981
7. The Planitiff further averred that in order to mitigate its losses, latter took a dilivery of its cargo at Karachi, which was later transshipped to the port of his discharge, that is, Abu Dhabi, but the same was done at the costs and risks of Defendants Nos.1 and 2. It would be advantage to reproduce the prayer clause as contained in the amendend plaint as under:-
(a) Direct the Defendent Nos.1 and 2 to immediately arrange to transship the Planitiff's consignment to the port of discharge i.e., Abu Dabi, or
(b) In the alternative direct the Defendent No.1 to deliver Planitiff's consigments to them for onward transshipment to Abu Dhabi at the cost of Defendent Nos.1 and 2.
(c) Grant interest/Mark up at the rate of 15% per annum on the suit amount till payment.
(d) Grant costs of the suit.
(f) Any other or better relief that this Hon'ble Court may deem fit and proper under the circumstances of the case."
8. The Defendents filled their written statement and raised number of preliminary legal objections with regard to maintainability of the instant suit. One of the main stances of the Defendants as averred in their pleading suit. One of the main stances of the Defendants as averred in their pleading is that one Captain Muhammad Yousaf was running the Vessel as "Bare-Boat Charter" from 15.01.1990 and the said Cargo was loaded at Bombay by the agent appointed by said Captian Muhammad Yousaf and, therefore, Defendant No,2 was never involved in accepting or loading the subject cargo or for collection of freight and for any claim of the nature. The Defendants also denied that ful fresh charges were paid to the agent in advance and claimed a subject cargo on board and in this regard Defendants invoked clause-D of the Bill of Lading. The Defendants claimed an amount of US$ 22,920 [US Dollars twenty two thousand, nine hundred and twenty only towards Charterer lien in respect of the Plaintiff's cargo under clause4,2, of the Bill of Lading.
9. From the pleadings of the parties, following cosent issues were framed:-- "1. Whether this Hon'ble Court has jurisdiction in the matter?
2. Whether the suit is maintainable?
3. Whether the Bill of Lading was freight pre-paid?
4. Whether any freight remaining unpaid by Plaintiff and if so to what extent?
5. Who is the Carrier under the contract of carriage?
6. Whether the Carrier was in breach of the contract of carriage by not delivering Plaintiffs cargo to port of discharge mentioned in the Bill of Lading?
7. What losses has the Plaintiff suffered due to non-delivery of cargo at the port of discharge?
8. Whether the Defendant No,2 has the right to exercise any lien on Plaintiffs cargo?
9. Whether the Plaintiff is entitled to sums claimed?
10. What should the decree be?
10. By an order dated 27.01.2000, following additional issue was adopted:-
11. Whether the Defendants are liable to pay the amount claimed in spite of the fact that voyage of the vessel was frustrated?
11. By the consent order dated 21.10.1991 the cargo in question was ordered to be delivered to the Plaintiff or its agent at its costs and expenses. Subsequently, by the order dated 04.05.1993, after hearing the parties at some length, the parties were allowed to file their respective amended pleadings. In the intervening period, the Vessel (Defendant No,1 was sold by the Official Assignee. In the order of 01.02.2000, it was observed that Karachi Port Trust's (the "K.P.T." ) dues were to be paid by the above Vessel, however, the Defendants since disputed the figurers, therefore, it was directed that parties in this behalf may lead evidence.
12. On behalf of Plaintiff, they have produced their sole witness Mr. Khalid Ebrahim, a Sudanese national, who testified as P.W-1, whereas on behalf of the Defendants, their local representative Syed Wasiuddin Ahmed, who claimed to be the attorney of Defendant No,2 the owner of the Vessel (Defendant No,1) so also the Managing Partner of local Firm-the said Defendant No,3 [SHIPK0], adduced evidence as D.W-1.
13. Findings, on the above issues, are as follows:- ISSUES NOS.1 AND 2. AFFIRMA TIVE ISSUES NOS. 3, 4 AND 8. AFFIRMA TIVE, NEGA TIVE, NEGA TIVE RESPECTIVEL Y.
ISSUES NOS.5 AND 6 AS UNDER., AFFIRMA TIVE ISUSES NOS. 7, 9 AND 1 1AS UNDER, AS UNDER AFFIRMA TIVE.
ISSUE NO.10. SUIT IS DECREED.
REASONS ISSUES NOS. 1 AND 2
14. Since these issues are interlinked and go the very root of the case, therefore, the reasons for deciding these issues in Affirmative, are that the present claim of the Plaintiff does fall within the ambit of Section 3(f) and (i) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, that, inter alia, confers an exclusive jurisdiction on this Court for trying causes of the nature. It would be advantageous to reproduce above clauses herein under:-
3. Admiralty Jurisdiction of the High Court. --(1) The Sindh High Court and the High Court of Balochistan shall have and 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.
(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 whose wrongful acts, neglects or defaults, the owners, charterers of persons in possession or 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;
(i) any action or claim in the nature of salvage of life from a ship or cargo or any property [underlining to add emphasis] on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or 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; ISSUES NOS.
3. 4 AND 8:
15. It is a settled principle of law of evidence that undisputed documentary evidence excludes the oral evidence. In the present case the two basic documents, whose authenticity was never in dispute are the above mentioned Bills of Lading; Exhibits 6-P/4 and P/5, which have clearly mentioned on its front page that freight has been prepaid. Even otherwise, on this very issue, the evidence of P.W.1 (Khalid Ibrahim), who was the sole witness of the Plaintiff and came from Abu Dhabi to record his testimony, remained consistent. Conversely, it was D.W.1 (Syed Wasiuddin Ahmed), who in his cross-examination has acknowledged the fact that there is no claim of any party in respect of the subject cargo of Plaintiff. In this regard, he was confronted with his own affidavit, which he filed in another Admiralty Suit No,429 of 1991 filed by some third party against the Vessel (Defendant No,1) and the same has been exhibited as Exh.49, page-111 of the present suit evidence file, containing the entire testimony of said D.W.1. In addition to this, the Defendants never notified to the Board of Karachi Port Trust (KPT) about their claim (if any) in respect of the subject cargo as envisaged by Section 47 of the Karachi Port Trust Act, 1886, and, therefore, defense/ plea of the Defendants about payment of any freight or their assertion that partly freight remained unpaid, and as a consequence of which, Defendant No,2 has a lien over the subject cargo, is meritless. Consequently, Issue No,3 is answered in Affirmative, whereas there is Negative finding on the Issue No,4 and both these issues are decided against the Defendants.
16. In view of the above discussion and particularly after a careful appraisal of the evidence of the parties, it can be concluded that Defendant No,2 has no right to exercise any lien on Plaintiffs cargo. Thus, issue No,8 is replied in Negative and against Defendant No,2.
ISSUES NOS.5 AND 6:
17. After a critical analysis of the evidence and undisputed facts, an inescapable conclusion would be that issue of carrier vis-a-vis present controversy has been agitated to complicate the matter.
From Clause-17 of the above mentioned Bills of Lading (Exhibit 6-P/4 and P/5) it is clear that Defendants Nos.1 and 2 were carriers. In addition to this, the Defendants and their sole attorney, the above named D.W.-1 in paragraph-9 of his affidavit-in-evidence has himself stated that Defendant No,3-SHIPKO took over the Vessel (Defendant No,1) and, therefore, Defendant No,3 also by virtue of this statement on oath has stepped into the shoes of Defendants Nos.1 and 2. In addition to this, the above mentioned correspondence of July 13, 1991 (Exhibit 53-A) from. Defendant No,3, wherein the latter refused to deliver the subject cargo to the Plaintiff at Abu Dhabi, inter alia, by invoking the Clause-12 of the said Bills of Lading, had demanded payments on behalf of the Carrier.
Nevertheless, this controversy can be resolved by following the dictum laid down in a decision cited by K.P.T. And appended with its written synopsis; the reported Judgment of Port Qasim Authority and others v. Official Assignee of Karachi (2007 CLD Page-143). It would be advantageous to reproduce the relevant portion of the above cited Judgment as under:- When an action in rem is resorted to under the Admiralty Jurisdiction of this Court, it.Is in fact an action against property or ship and in case the plaintiff succeeds in its action, then the property or the ship is to be sold towards the satisfaction of the claim. The action in rem under the Admiralty Jurisdiction of this Court is legal proceedings against the corpus of the offending ship. One can get a decree in a proceeding in rem against a ship without suing its owner or any person. The object of such an action is to acquire jurisdiction over the ship as the owner of the vessel might be located overseas over which the Court may not have jurisdiction. By getting a ship arrested, the object which is realized is to keep the ship within the jurisdiction of the Court or in the alternative obtain sufficient security to cover various claims made against the ship."
18. Thus in proceedings of the nature, that is, for an action in rem, a Plaintiff even without participation of the owner of a vessel, if the case (of Plaintiff) otherwise falls within the purview of the above mentioned Admiralty Jurisdiction of High Courts Ordinance, 1980, can succeed in his claim. One of the basic reasons for this is, that if an owner of a vessel is a foreign entity and has no presence in Pakistan, then a genuine claim of a party should not fail or a Plaintiff should not be remediless, merely due to absence of the owner of the vessel or for any other technicality.
19. After a critical evaluation of the entire evidence and taking into the overall conduct of Defendant No,3, which is also reflected in the Order of 8-12-1991, that the said Defendant was even resisting the delivery of subject cargo to Plaintiff, it can be held that contract of carriage was breached by the Defendants, as admittedly the cargo was discharged at Karachi Port, that too, only after the orders of this Court dated 4-03-1992, whereas it is an undisputed position that port of discharge as mentioned on the above Bills of Lading was Abu Dhabi. In this regard the assertion of Plaintiff that it opted to take delivery at Karachi, in order to mitigate its losses, was not challenged by the Defendants. Therefore, Issue No,5 is answered accordingly, whereas, a logical conclusion to this Issue No,6 is an answer in Affirmative.
ISSUES NOS.7, 9 AND ADDITIONAL ISSUE NO.11:
20. The statement of P.W.1 in his evidence, that voyage was never frustrated, could not be shattered by the Defendants while cross-examining the said P.W.-1. The fact that the subject cargo was transhipped from Karachi to Abu Dhabi by Plaintiff by hiring the services of Metco Gulf General Trading, which fact was corroborated by producing in the evidence a copy of the invoice of the said Company for US $ 47,785 (US Dollar Forty Seven Thousand Seven Hundred and Eighty Five only), and the cheque for AED {Dirhams} 109087.79/-; these documents are exhibited as Exhibits P/8 and P/9, which evidence could not be displaced by the Defendants. Besides this, the evidence adduced by the official of K.P.T. Also contains a correspondence dated 24.10.1991 (Exhibit-C/26) by the local affiliate of the above named Company viz. Gulf Maritime Services (Pakistan) (Pvt.) Ltd., wherein K.P.T. Was requested, inter alia, to berth the Vessel (Defendant No,1) at clear berth in order to discharge the subject cargo. This document/correspondence also was never challenged by the Defendants. Consequently, the claim of Plaintiff towards transshipment charge to the tune of US $ 47.785 stands proved. On this very fact the testimony of said P.W.1 (Khalid Ibrahim) could not be disproved by the Defendants Besides this it is an admitted position that subject cargo was actually transshipped from Karachi to Abu Dhabi and obviously for such transshipment the Plaintiff had incurred costs and expenses. Besides, the of transshipment of the subject cargo from Karachi port to Abu Dhabi, coupled with costs and charges paid by the Plaintiff, also falls within the purview of res ipsa loquitur (the thing speaks for itself). The other related claim of the Plaintiff, which after evaluation of evidence, could not be falsified by the Defendants, is the loss suffered by the Plaintiff with regard to 716 bags of sunflowers seeds, as the subject cargo remained stranded at Karachi for more than a year, therefore, to this extent, the Plaintiff is entitled to recover loss as claimed in the sum of US $ 4,547. This finding also results in accepting the claim of the Plaintiff of US $ 1,500 and depreciation in value of cargo to the extent of 20%, causing loss to Plaintiff of US $ 17,487.91.
' However, no evidence with regard to other incidental costs amounting to US $ 2,788 (US Dollar Two Thousand Seven Hundred and Eighty Eight) has been produced and hence, the same is not tenable. Similarly, the Plaintiff could not prove its loss of US $ 30,000 (US Dollar Thirty Thousand) in respect of closure of its factory. Even otherwise, it does not appeal to common sense that the factory owned by Abu Dhabi Government got closed down because it did not receive delivery of subject cargo within the stipulated time. Consequently, this claim of US $ 30,000 (US Dollar Thirty Thousand) and the one mentioned above under the head 'other accidental cost for transshipment of cargo in question are rejected. With regard to the additional Issue No,11 concerning the voyage frustration, it is observed that in this regard the evidence that has come on record from both sides, brings forth the conclusion that frustration of voyage is immaterial in the present circumstances, as far as, the contractual obligation of the Defendants towards Plaintiff is concerned. The defendants cannot be absolved from performance of their part of obligation as it has already been held, inter alia, hereinabove, that entire freight was already paid to Defendants Nos.1 and 2. The Defendants' witness Syed Wasiuddin Ahmed (D.W.-1) has failed to prove the case about any efforts or measures, which Defendants should have taken for delivery/discharge of subject cargo at the Abu Dhabi Port in compliance of their contractual obligations, or, any other act for alleviating the grievances of the Plaintiff. The other important aspect of the case is that the Defendants were also bailee for the subject cargo/goods and in terms of Sections 151, 152 and 161 of the Contract Act, 1872, they are also liable to make good the losses to Plaintiff. In a Judgment handed down by the learned Division Bench of this Court reported in 1991 CLC 1270 (Pakistan through Secretary Communication Islamabad v. M/s. Habib Insurance Company Limited) it was held that Railway Administration acted as bailee while booking goods and was liable to take as much care of the goods which a man of ordinary prudence would have taken and in absence of such duty and care, the Railway Administration was held liable for the losses and destruction of goods. This is another reason to allow the claim of the Plaintiff in the above terms by excluding the component of 'closure of factory'; loss claimed as US $ 30,000 as well as other 'incidental cost' of US $ 2,788. Considering the factors prevailing at that relevant time, it can be held that conditions were not beyond the control of the Defendants, as far as their contractual obligations for delivery of subject cargo to the Plaintiff was concerned. Therefore, Issues Nos.7 and 9 are answered accordingly, whereas, additional Issue No,11 is answered in Affirmative.
ISSUE NO.10:
21. Mr. Azam Khan, the Senior Clerk of K.P.T. filed his affidavit in-evidence along with number of documents in support of their claim, primarily relating to KPT dues against Defendant No,1 from the period 17.03.1991 to 23-10-1992. The claim of the K.P.T. is in the sum of Rs,36,82,468.71 (Rupees Thirty Six Lacs Eighty Two Thousand Four Hundred Sixty Eight and Seventy One Paisas). Mr. Abdul Razzak, Advocate for the K.P.T. has cited the following Judgments in support of his argument that claim of the K.P.T. towards port dues and charges has primacy vis-a-vis other claims, even that of a secured ,creditor.
2007 CLD 143 (2005) 10 Supreme Court Cases Page-284 [Indian Jurisdiction] An unreported Judgment of learned Division Bench of this Court passed in Admiralty Appeal No,05 of 2006 [BOURBON MARITIME (PVT) LIMITED v. M. V. SALAJ AND OTHERS].
22. The prcis of the above case law is not different than what has been argued by the learned counsel for the K.P.T.
23. The upshot of the forgoing is that the suit of Plaintiff is decreed in the sum of US $ 84,819.91/- [US Dollars Eighty Four Thousand Eight Hundred Nineteen and Ninety One Cent] only, along with mark- up at the prevailing market rate from the date of institution of the suit till realization of the amount, against the Defendants jointly and severally.. Since the claim of K.P.T. has priority over other claims in view of settled legal position and in this regard learned counsel representing the Plaintiff also has no objection, thus, after payment of K.P.T. dues, the remaining amount be paid to Plaintiff.
24. As per the latest Reference No,01 of 2015 of learned Official Assignee, a sum of Rs,1,69,99,154/- [One Cror Sixty Nine Lacs Ninety Nine Thousand One Hundred Fifty Four only] was available with him.
Consequently, the Official Assignee is directed to release the amount first towards K.P.T. claim, but, after scrutinizing the same [claim of K.P.T.), whereafter, the remaining amount be paid to Plaintiff towards satisfaction of decree, either, partially or entirely, as the case may be.
25. As far as other two connecting matters viz. Admiralty Suits' Nos.550 of 1991 and 744 of 1992 are concerned, from the perusal of their respective order sheets, it transpired that above Admiralty Suit No,550 of 1991 was dismissed by Judgment dated 10.03.1998 and the Admiralty Suit No,744 of 1992 was dismissed for non-prosecution on 20.11.2002, whereafter it never stood restored.