MUHAMMAD JUNAID GHAFF AR, J.---This is an Admiralty jurisdiction Suit under the Admiralty Jurisdiction of High Courts Ordinance, 1980 ("1980 Ordinance") and through C.M.A. No.96/2018, the Plaintif f seeks arrest of the Vessel i.e. Defendant No.4 (M..T Ocean Pirncess-1) and through C.M.A. No. 98/2018, the Defendant No.4 seeks recalling of Order dated 28.06.2018, whereby , ad-interim orders for arrest of Vessel was passed, and so also directions to the Plaintif fs to get the cargo on board discharged and to enable the V essel to sail.
2. Briefly the facts, as stated are, that Plaintif f in order to procure Bitumen Grade 60/70 entered into negotiations with Defendant No.1 and for that a Sale Purchase Agreement was executed on 12.06.2018. The sale was agreed on US $ 1,290,000/ for 3000 Metric Tons, which was paid by the Plaintif f to Defen dant No. 1 vide Invoice Voucher No.2-18-15 dated 12.06.2018 in Dubai, whereas, in Clause 1.3 of the Agreement it was agreed that the Seller shall provide Bitumen having the specification and technical standards as mentioned therein. Thereafter cargo was loaded vide Bill of Lading dated 06.06.2018 from Jabel Ali U.A.E for its discharge at Port Qasirn, Karachi. It is further stated that on 25.06.2018, the Surveyor namely QUA YSIDE Services Enterprises addressed a Letter to the Master of the Vessel forwarding its copy to the Shipping Agent stating therein that at the time of discharge unusual behavior of the cargo was noticed as when temperature reaches 130 degrees centigrade, it overflows from the Tank due to abnormal formation of bubbles and water presence was suspecte d, whereafter they had shown reluctance in continuation with discharge of cargo due to safety reasons. A similar letter was issued by Defendant No.6 and the Plaintif f then filed this Suit on 27.06.2018 along with application at Serial No. 1 claiming damages to the extent of US$ 190 Million and a Judgment and Decree for the entire amount of Invoice i.e. US$ 1,290,000/-. On 28,06.2018 by way of an ad-interim order , the Vessel in question was arrested; however , for reasons not known, no simultaneous order for its release agains t security was passed. On receiving notice, counter affidavit and written statements have been filed by some of the defendants, whereas, Defendant No.4 has also filed Application at Serial No.2.
3. Learned Counsel for the Plaintif f has contended that the cargo in question was purchased from Defendant No.1, who had purchased the same from Defendant No.2 and as per the agreement in question, the cargo was supposed to meet the technical specifications as agreed upon and admittedly it is not up to such specifications, therefore, Plaintif f has filed instant claim; that as per the terms of the Bill of Lading the Grade of Bitumen was supposed to be 60/70; that initially when cargo was discharged, it was of the agreed specifications, and therefore, clearance was sought and approved without any objectio ns; that the report of SGS clearly reflects defect in the specification of the cargo as water content is available; whereas, as per -the Report of the Surveyor at the time of loading it had no presence of water; that Plaintif f has never objected to the release of the Vessel upon furnishing security of the claim of the Plaintif f; that under Section 3(2)(g) & (h) of the 1980 Ordinance, the claim is maintainable; whereas, the issue as to who is to be successful is a matter of evidence and cannot be decided at this stage of the proceedings; however , a case to the effect that the cargo is damaged has been made out; that the terms and conditions of the Contract of Affreightment have been violated; that Defendants Nos.1 and 2 have colluded and defrauded the Plaintif f by delivering subs tandard product; that notwithstanding this claim, the Defendant No.4 by way of negligence has allowed water contamination as this was a special cargo and utmost care was required to be maintained; that presently out of the 3000 Tons, the Cargo available is 2458.78 M. Tons and the Vessel in question may be released after furnishing security of US $ 1,057,275/-; whereas, Defen dant No.4 ha& already offered security of US$ 6000,000/-approximately , and therefore, no case is made out in opposing this application; that at least two reports are on record, one by H.E.J. Research Institute of Chemistry , Karachi dated 15.9.2018 and other by PERAC Research and Development Foundation dated 27.6.2018 and both of them confirm presence of water; whereas, the original report at Port of Origin had no such presence and so also the agreement also provided that no water should be there; that these Reports warrant allowing the application in question; that Rule 748 of the Sindh Chief Court Rules (0.S) ("SCCR") empowers the Court to exercise its discretion in arrest and release of Vessel, therefore, Defendant No.4 has no justifiable cause to oppose; that presently the only concern of the Plaintif f is that proper security be furnished and Vessel may be allowed to be released as apparently the remaining Product is nothing but useless for the Plaintif f; that a claim in Rem and Personam is simultaneously maintainable under Section 3(2) (g) & (h) of the 1980 Ordinance, read with Section 4(4) thereof, and therefore, the objection of the Defendants is not maintainable; that it is the discretion of the Court under the Admiralty jurisdiction read with Original Side Rules to Order arrest of a Vessel and releasing it upon appropriate security; that C.M.A. No.98/2018 filed by Defendant No.4 regarding the claim and charges incurred by them is without any supporting material and in absence of a proper counter claim, no right accrues to them; that it is for Defendant No.4 to establish that the Vessel was seaworthy or not to carry a special cargo like Bitumen Grade 60/70; that admittedly cargo has been contaminated with water by the Vessel, therefore, claim under the Admiralty Jurisdiction is competent. He has also referred to Carver's Carriage By Sea and Corpus Juris Secundum in relation to effect of unseaworthiness and its definition, The Hague Rules 1968, (Article-III), and Halsbury's Laws of England (Second Edition) for liability of the Ship when it is Chartered, British Shipping Laws, Maritime Liens, Vol.14, for a claim against the Ship which is carrying the cargo, Payne's Carriage of Goods By Sea, Seventh Edition, in respect of the authority of the Master , Maritime Law by Christopher Hill in support of his argument that it is not necessar y to prove the entire claim while seeking arrest of a Vessel, Bill of Lading in International Law and Practice by T.K. Thommen to argue that Bill of Lading is a receipt and acknowledgment of cargo. In support he has further , relied upon the cases reported as Associated Agencies Ltd. and another v. Industrija Masina/T ractora and anothe r (PLD 1983 Karachi 459) and Metal Construction of Greece S.A. (Mekta S.A.). Athens through Attorney v. Owners of the Vessel m. v. Lady Rea (2013 CLD 1829 ).
4. On the other hand, learned Counsel for Defendant No.4 has contended that the case as drafted and pleaded is not a case which could be entertained under the Admiralty Jurisdiction; but is only a claim of damages and recovery under the ordinary civil jurisdiction; that in the plaint, nothing has been stated about the water content at the original Port of loading, nor it is so stated in the Agreement in question; that internationally and as per Product Technical Data Sheet of Shell Bitumen which is an authentic source, there can be water content in Bitumen 60/70 to the extent of a maximum of 0.20%; whereas, in the Reports and tests conduct ed at least twice, the content of water has been found less than this specification, and therefore no case is made out; that Bitumen is stored and transported as well as discharged at a temperature of more than 100 degree centigrade, and therefore, scientifically there is no question, of presence of any water content as at this temperature it is evaporated being more than its boiling point; that the Plaintif f has only arrayed the Master of the Vessel and in absence of the Carrier or Charter Party , the Suit under the Admiralty Jurisdiction is not competent; that Suit is in Rem and Personem, therefore, Vessel cannot be arrested; that the claim as setup is only against the Vessel and being in rem, no relief can be sought against the Carrier or Charter Party; that the Suit is otherwise incompetent in terms of Order XXIX C.P.C. as this has been filed without a Board Resolution; that it is only Clause (h) of the 1980 Ordinance, which could be attracted, but in the given facts, the same also does not apply; that no claim is maintainable on the basis of Bill of Lading, which is to be governed under the Bill of Lading Act, 1856; that Defendant No.4 has no concern with the Agreement between Plaintif f and Defendant No.1; whereas, after accepting part cargo from the same Vessel, it appears to be an admitted position that as a whole the cargo was not contaminated; that the objections of the Surveyor was on the basis of inspection on the Trucks and Lorries in which the cargo was being discharged; that it is unique case, wherein, under the Bill of Lading, the Consignee and the Consignor are same parties; that if there is any claim, it is between and against both of them; that the claim is presumptive in nature and Defendant No.4 has been unnecessarily dragged in this case, as the said claim is not competent under the Admiralty Jurisdiction of this Court; that it is only the Master , who has been arrayed as a Defendant and if the Master is dismissed from service, no claim remain s insofar as the carrier and owner of the Vessel is concerned; that the interim order has been obtained through misrepresentation; whereas, the Vessel is detained since June 2018 and has incurred a very heavy cost at the outer Anchorage for which the Plaintif f is liable and be directed to deposit the amount as security being claimed by Defendant No.4; that the test report relied upon by the Plaintif f originating from loading Port is silent about the water content, and therefore, the presumption is that presence of water content is immaterial; that even otherwise the water content is within the permissible limits; that as per Petroleum Rules, a Vessel carrying any petroleum product before entering the Port premises is supposed to carry out test and only thereafter Customs Authority can only allow berthing and discharge of the same; whereas, in this case though Defendant No.4 is not in possession of any such report, but it must be with the Plaintif f or Defendant No.1 find it has been concealed from the Court, that even otherwise the total cargo on the vessel was approximately 3,992 M.
Tons and according to defendant No.4 more than 1500 Tons has been discharged and accepted and the Bill of Lading in dispute is of 3000 M.Tons; hence the security , if any, without prejudice , can only be demanded for the remaining balance out of these 3000 Tons; that Plaintif f ought to have placed on record test report from the cargo already discharged and accepted, so as to establish that there was no water content in the said cargo, and only then their claim, without prejudice, could have been entertained; that the report of Defendant No.6 has been relied upon to mislead the Court as the said Company was only engaged to measure and ascertain the quantity , and not the quality and specifications, and in support thereof he has referred to their written statement; that as per Nazir's Reports dated 08.08.2018 and 12.09.2018 all along the Plaintif f has shown reluctance in drawing samples for tests and has raised objections, which delayed the matter; that Plaintif f has come with unclean hands, hence not entitled for any relief as prayed for; that it is not a matter which can be decided only through evidence but so also on a tentative assessment of the record available at this stage, including the pleadings and the test reports on record; that through C.M.A. No.106/2018 till its filing, the Defendant 4 has claimed an amou nt of US$ 1.42 Million and as of today , it has exceeded to US $ 2.0 Million and Plaintif f may be directed to provide such security while dismissing their injunction application; that even otherwise, the Plaintif f Company is a non-resident Company having foreign shareholding and they do not have a permanent office in Pakistan, therefore, even otherwise they are liable to furnish security before the Court; that the import otherwise is not legal inasmuch as the entire payment of the import Invoice has been paid in Dubai, and therefore, it is in violation of Chapte r 13.6 of the Foreign Exchange Manual, hence no bona fide case is made out. He has also referred to various test methods of Bitumen by Civil Blog.org and nptcl.ac.in to support of his argument that in all test methods, water content to the extent of 0.20% is available as well as permissible. In support he has further relied upon the cases of Dabinovic (Monaco) S.A.M Authorized Agent of Nfian Naviera-Y Financiera LTDA, San Jose (Costa Rica) v. In. v Pluton 1, Yugoslavian Flag through its Captain and 2 others (1993 MLD 1587 ), Jaffer Brothers (Pvt.) Limited V. M.V. Eurobulker II Presently Berthed at Moorings in Karachi Port to be served through Master (2002 CLD 926), Messrs. Sun Line Agencies Ltd. v. Vessel M. V. "PSILORITIS" and 2 others 1984 CLC 1553 and Alan Ernest Sykes v. James Walker Taylor -Rose [20041 EWCA Civil 299.
5. Learned Counsel for Defendant No.2 has contended that insofar as the present applications are concerned, there is no relief sought as such against this Defendant, and therefore, presently no counter affidavit has been filed; whereas, even otherwise in the entire pleadings there is no case against this Defendant and for that an appropriate application is being filed for deletion of the name; that the agreement in question is silent about water content and its percentage, therefore, presumption would arise that its presence to the permissible extent was agreed upon, hence no case is made out; that the Shipper and the Buyer are same parties, therefore, the relief, if any is to be granted and settled by themselves and not by other Defendants; that burden to establish a prima facie case rests upon the Plaintif f; whereas, on the basis of material placed on record no such case is made out within the parameters of Order XXXIX, Rules 1 and 2 C.P.C.; that the test reports on record clearly provides that water content is even otherwise within the permissible limit;, hence no justification arises for refusing and/or accepting the cargo; that at 100 degrees centigrade, the water boils and evaporates and it is not possible that at the time of discharge which is done at more than 130 degree centigrade, water is present; that almost 1533 M. Tons of cargo has already been offloaded from the said Vessel and accepted as well, whereas, it is liquid cargo in bulk, hence the question and possibility of water content does not arise, and if so, then it must also have been present in the cargo already received, therefore, the Plaintif f is not entitled for any relief.
6. Learned Counsel for Defendant No.6 has contended that initially they were not made a party but the Court on 28.06.2018 joined them as a Defendant; whereas, their primary responsibility was only for the purposes of quantity and not quality , therefore, they are not responsible for any alleged loss of the Plaintif fs.
7. While exercising the right of rebuttal, learned Counsel for the Plaintif f has contended that this is a case of a joint cause i.e. in rem as well as personam and in view of the Judgment of the Hon'ble Supreme Court reported as Yukong Ltd, South Korean Company , Seoul, South Korea v. M.T Eastern Navigator and 2 others (PLD 2001 SC 57), this issue stands resolved; that mere bad drafting or non-joining or proper joining o' a party does not disentitles the Plaintif f from the relief being claimed as it is not fatal to the entire case and would not defeat the cause; that the objection regarding Board Resolution is also immaterial at the injunctive stage and can only be taken up at the evidence and at the trial for which reliance can be placed on the cases of Pakistan National Shipping Corporation v.
AMLV. LE CONG through Agents and 2 others (2009 CLD 234) and N.V. Nutricia v. Messrs Nutricia Foods International (Private) Limited through Chief Executive Director/Secretary and another (2000 CLC 866); that a case of Rem and Personam can go together in view of the Judgment reported as C. V. "Lemon Bay" v. Sadniddin and others (2012 SCAM 1267); that no Charter Party Agreement has been brought on record; whereas, the Carrier s defending this case on behalf of the Vessel and it is only through 'he Master that the Vessel has been arrayed, being an employee / servant. of the carrier , hence the argument regarding non-joining of owner or carrier is meaningless; that damage has been done to the cargo by the vessel, therefore, it is a fit case under the Admiralty jurisdiction; that sampling/testing has been done and water content is present; whereas, in the original agreement there was no mention of any water conte nt, hence the cargo has been contaminated; that claim against Vessel is competently maintainable under 1980 Ordinance read with case reported as Trading Corporation of Pakistan (Pvt.)
Ltd. v . M. V . "AVIONA" and 2 others (2014 CLD 1327 ).
8. 1 have heard all the learned Counsel and perused the record placed before the Court. At the very outset and before proceeding any further , I may record that the plaint as well as pleading of facts in this matter has been done very poorly , and is of no help to this Court while hearing and deciding the listed applications. It appears to the Court that all parties before k have not brought the entire facts, for reasons best known to them. And this observation of the Court is based on the fact that certain very vital and crucial links are apparently missing in the pleadings of all the parties. The disclosure of facts on record does not corroborate with ground realities surfaced during the proceedings and hearings before the Court. Nonetheless, the decision on the listed application(s) is being rendered on the basis of whatever is said in the pleadings as this is what the law requires. The claim as setup in this matter is on two accounts. The plaintif f has filed its claim against its supplier(s), as well as the Vessel i.e. Defendant No.4.
It is the case of the plaintif f that a Sale and Purchase Agreement was entered into with Defendant No.1 for 3000 Tons of Bitumen 60/70 grade and more specifically as mentioned in clause 1.3 of the said agreement dated 12.6.2018. At the same time it is a matter of admitted position that the Vessel in question is or was carrying 3992 M.T. of the said product. This fact has not been disclosed in the entire plaint, nor does the same appears to be the very part of the agreement in question. While arguing the case and on a Court query an effort has been made through a Statement that for some 900 M.T. there was a separate Bill of Lading. How this Bill of Lading came into existence, and why it was not part of the pleadings is not clear . At the same time the stance of Defendant No.4 on this aspect is also vague and silent. It is to be noted that the cargo on Vessel is in bulk and is supposed to be stored commonly in the Tanks, and there isn't a possibility that cargo of two Bills of Lading is stored separately in such a situation. This has been noted for the reason that in case if the Court comes to the conclusion that a case for arrest is made out, then appropriate security is to be asked for, and that can only be ascertained on the basis of the balance cargo for which the Vessel is liable. Another aspect of the matter is also alarming as well as surprising in that the Agreement is dated 12.6.2018; but the Bill of Lading is of 6.6.2018. This is not enough, as again the shipper and consignee are same, wherea s, the case as setup in the plaint is also against Defendants Nos.1 and 2.
An attempt has been made to argue that the name of consignor and consignee is same due to some arrangement at load port. Why this was done and how it could be, is a matter of surprise as well as mystery . The agreement provides that the specification of the cargo should be as per clause 1.3, and apparently , it has no term(s) regarding water content or its presence. The second document which has been relied upon on behalf of the plaintif f is a report of GEO-Chem, Dubai, UAE, dated 4.6.2018, which is a Certificate of Quality , and states that it has been issued at Tehran, Iran, (But the document itself shows its address as of UAE), but nonetheless, it again does not speaks of any water content. This document further reflects that it was issued to the Consignee which is Defendant No.2, perhaps when cargo was being sold or shipped to Defendant No.2, and may be on board vessel it has been sold to the Plaintif f who has been named as the Notify Party . These are very confusing as well as incomplete facts which were required to be so stated before proceeding further as to the merits of the listed applications.
9. However , before proceeding further , there are two objections so raised on behalf of Defendant No.4, which are to be addressed first. The first of these objections is regarding maintainability of the Suit being non-compliant as to Order XXIX of Civil Procedure Code. The learned Counsel for Defendant No.4 has argued that Suit has been filed without a proper Board Resolution and is therefore incompetent. However , at the very outset, I may observe that this is not an issue which ought to be decided at this stage of the proceedings. It is only an application for arrest of Vessel filed under Rule 731 of SCCR, which is being considered by the Court. Whereas it is only an objection without any supporting application to that effect. Nonetheless, even otherwise on examination of the record, it appears that an Authority Letter has been placed before the Court on behalf of Director of the Company , who has also referred to the agreement in question and seeking legal remedy thereof; hence it would not be appropriate to non-suit the Plaintif f at this stage of the proceedings, which can more appropriately be taken up at the trial of the Suit and evidence, and for this reliance may be placed on the case of Pakistan National Shipping Corporation and N. V. Nutricia v. Messrs Nutricia Foods International (Private) Limited (supra). Moreover , the Memorandum and Articles of Association of the Company have been placed on record which reflects that Plaintif f is a two (2)
Directors Company , one authorizing the other; hence, the intentness of this objection is also annihilated to a very large extent.
The other objection, which has been raised on behalf of Defendant No.4 is to the effect that the claim as setup on behalf of the Plaintif f does not fall within the ambit of Sections 3(2) (g) and (h) and Section 4(4) of the 1980 Ordinance; hence liable to be rejected. According to the learned Counsel this provision does not apply inasmuch as firstly , it is only the Master of the Vessel in question, who has been arrayed as a Defendant and the Ship owner or the Charter Party , is not before the Court. Secondly , according to him the dispute is between the Plaintif f and Defendants Nos.1 and 2 regarding quali ty of the goods in question, and therefore, even otherwise it is not a fit case, wherein, Admiralty Jurisdiction of this Court could be invoked for arresting the Vessel i.e. Defendant No.4.
However , it may be appreciated that by now it is settled law that a claim under the Admiralty Jurisdiction, if it falls within the ambit of Section 3(2) (g) & (h) of 1980 Ordinance read with Section 4(4) thereof, (this will he dealt with in detail hereinafier) can be entertained by the Court even in absence of the Ship-owner or the Charter Party in question. It is a matter of record that Defendant No.4 (Master of the Vessel to be precise) has come before the Court to defend the lis, and he has done as an employee of the Ship-owner or Charter Party; hence the stance so taken as to the non-impleadment of the Ship-owner and Charter Party is not convincing but is meaningless. It has rather died and gone with the defence so taken in this Suit. Reliance in this regar d may be placed on the case of Yukong Limited, South Korean Company (Supra), wherein the Hon'ble Supreme Court has been pleased to hold as under;
31. Regarding objection of the petitioner about the respondent United Marine Service S.A. cited as defendant No.2, it is noted that they, being owner were cited as the defendant and this fact alone does not take the suit from the ambit of Admiralty Jurisdiction. In the case reported as The Republic of India v. India Steamship Co. (1997) Weekly Law Reports 818 (827), it was held that, the owners are the real party in a suit in rem, therefore, no objection can be taken for citing said corporation as defendant No.2. The objection of the petitioner is not sustainable in law .
32. Adverting to the contention of the petitioner that the High Court failed to appreciate the dictum laid down in the cases of Messers Ahmed Investment Ltd. and Bangladesh Shipping Corporation, referred to earlier , it is noted that in case of Messers Ahmed Investment Ltd. it was held that a suit filed in rem under Admiralty Jurisdiction will not fail merely on account of joinder of the owner of the vessel as party to the same. In case of Bangladesh Shipping Corporation the view taken on the basis of The Banco's case (1971) 1 AER 524 was that action in rem lies against a ship without making it defendant. The real defendants are described as owner of or persons interested in ship and the writ of arrest may be effected by serving it on ship. It was held that if no appearance is entered by the owner the action remains as an action in rem operating only against the ship and if judgment is passed in favour of the plaintif f, it can be enforced by sale of the ship, but not against the owner personally or any of his property .
Further , it was observed that in consequence of the service if the owner or any person interested in the res, enters appearance and puts up the defence then the person so appearing becomes party to the action and thereby becomes personally liable for whatever may be decreed against him.
10. Coming to the question that whether , the claim as brought before this Court could be entertained under the 1980 Ordinance, it would be advantageous to refer to the provisions of Section 3 (2) (g) & (h) and so also Section 4
(4) of the 1980 Ordinance, which reads as under:- "3. Admiralty Jurisdiction of the High Court;
(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-
(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;
4. Mode of exercise of Admiralty jurisdiction.
(4) In the case of any such claim as in mentioned in clauses (e) to (h) and (j) to (q) of subsection (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 or charterer of, or in possession cr 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."
Perusal of the aforesaid provisions reflec ts that Admiralty Jurisdiction has been conferred on this Court that is to say the jurisdiction to hear and determine the causes, questions or claims arising out of any agreement relating to the carriage of goods in a Ship or to the use or hire 01 the Ship. It is also available in respect of any claim for loss or damage to the goods carried in a Ship. The objection of the learned Counsel for Defendant No.4 that the case of the plaintif f is a claim in personam and not in rem, and therefore, it is not maintainable at least against the Master of the Vessel, is also devoid of any merits. Here in this case no further interpretation of these provisions is warranted inasmuch as it is the same Vessel, which is under arrest, and was required to carry the cargo in question. A Bill of Lading for such purposes is already a matter of admitted fact. Though the claim of the Plaintif f may have been against other Defendants as well, as to the damages being claimed; but at the same time, insofar as the present applications are concerned, the cause of the Plaintif f seeking arrest of the Vessel squarely falls within the Admiralty Jurisdiction of this Court. Moreover , it is also by now settled that a claim in rem and personam is simultaneously maintainable under the Admiralty Jurisdiction of this Court. As stated this is not a matter , wherein, arrest of some other or a Sister Ship having any common ownership or relationship is being sought. It is in fact the very same Vessel, (still loaded with part cargo under the Bill of Lading in question) which is berthed and under arrest at the outer Anchorage at Karachi, therefore, this objection is also overruled. The learned Counsel for Defendant No.4 has made an intrepid effort to argue that this is not a case, wherein, this Court could exercise its Admiralty Jurisdiction so as to pass any orders of arrest of the Vessel, and has also placed reliance on certain documents as well as case law. In my view, and with respect, these decisions are not of any direct relevance in the filets and circumstances of the present case. The issue here is not whether the Vessel is a sister ship of some (other) offending ship. Here, it is contended that the Vessel is itself the offendin g vessel, which is liable to be arrested because the carrier in respect of the contract of affreightment is its owner , and not the time charterer (defendant No.2). As is obvious, the nature of the question that requires resolution is different from that raised in the cited cases . Reliance. may also be placed on the case of C. V. "Lemon Bay" and others (Supra) as relied upon by the learned Counsel, for the Plaintif f, wherein, the following observations are relevant; "6. Since the defendants did not obtain the bank guarantees and released the consignments, the plaintif f did suffer a monetary loss. It, therefore, follows that the plaintif f was entitled to a decree against the defendants. At this juncture, it is important to bear in mind the provisions of section 3(2)(h) of the Admiralty Ordinance which provides that "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 ... (h) any claim arising out of any agreement relating to the carriage of goods in a ship . ." When we examine section 4(4) of the Admiralty Ordinance along with the said statutory provision, it becomes clear that an action in personam can be founded on any agreement such as a bill of lading relating to the carriage of goods in a ship. In addition to the right to bring an action in personam, the admiralty jurisdiction of the Court can also be invoked for an action in rem for the arrest of a sister ship such as La Boheme in the case of Suit No.27 of 1999 and the vessel Swat in the case of Suit No.31 of 1999. The learned appellate Bench in the High Court has held that the plaintiff had not asserted any claim against the sister ship and it was for this reason that the amount decreed by the learned trial Bench was reduced to the extent of the claim related to consignments which were shipped on such sister ships............
"7. After examining the law and considering the arguments advanced on behalf of both sides, we are agreed with learned counsel for the plaintif f that the learned appellate Bench fell in error when it reduced the amounts decreed by the learned trial Bench. Even if it is held that the sister ships had not been impleaded as defendants in the two suits and that ther was no averment in the plaint asserting a claim against the sister ships, the decree in personam could still have been passed against defendants Nos.1 to 3 even if a decree in rem was not permissible against the sister ships in view of section 4(4) of the Admiralty Ordinance. At this learned counsel for the defendants contended that the sister ships had been wrongly and unlawfully arrested in the Suits Nos.27 of 1999 and 31 of 1999 because the said ships were not parties and in the absence of pleadings to establish the relationship between the defendant No. 1 (in each case) and the sister ships these ships could not be burdened with liability for the plaintif fs claim. This argument, however , does not in any manner affect the decree in personam obtained against the defendants Nos.1 to 3 (in each case). The only effect of such a shortcoming would be that the vessels impleaded as defendant No.1 in the two suits may not be liable for losses occasioned by the plaintif f in relation to consignments which were not carried by the said vessels.1 Further it is not in dispute that there is a Bill of Lading for 3000 Metric Tons of Bitum en 60/70, issued by the Master of the Vessel. Now it is settled law that a Bill of Lading is signed by the Ship-owner , or by the Master or other Agent of the Ship-owner . It is an acknowledgement of the receipt of the cargo mentioned therein,. It contains particulars relating to the goods as their quantity , condition as well as identification marks, if the same is in packed condition.
But in any case it is a receipt of goods shipped. This in this matter is not in dispute. The Hague Rules (which admittedly apply on this case) say that a bill of lading is a prima facie evidence of the receipt by the carrier of the goods described therein. This is a conclusive evidence of shipment in the hands of the consignee or the endorsee, as the case may be, as against the Master or any other person signing the same. It is normally signed by the Master on behalf of the carrier or ship-owner and the case of Defendant No.4 is not that no goods were shipped. It is not a question of the Ship-owner or Charter Party that the Master has acted beyond his authority . No such case has been pleaded in the reply . It is settled law that a consignee who is a holder of a Bill of Lading (not in dispute as to the fact that some goods have been shipped), is always under an expectation that he is entitled to proceed against the ship or its owner in the event of loss or damage to his goods. And this is what the case of the plaintif f is; hence, it' falls within section 3(2)(h) of the 1980, Ordinance, and this Court can competently exercise the Admiralty Jurisdiction in ordering the arrest of the Vessel in question. In this case though only the Master has been arrayed as Defendant No.4, but for that it is also to be kept in mind that no other case for impleading the ship-owner or Charterer has been made out in the reply of Defendant No.4. And it is not a matter of any further dispute or deliberation that presumption lies in the authority of the Master to do certain acts. He is generally conferred with powers to issue Bills of Lading and to accept cargo on board, whereas, the person s dealing with him may assume that he is a general agent having authority to bind owners for the purposes and on the terms on which the Vessel is usually employed. The Master is supposed to be the servant of the registered owner of the Vessel, whereas, in cases wherein, the Bill of Lading is signed by the Master acting as a servant of the Ship-owner or the Charter Party , a mere reference made to the Charter Party in the Bill of Lading does not amount to a notice that master is not the owners servant. The Bill of Lading in question has been signed without any qualifie d words, therefore, the holder of such Bill of Lading would be justified to claim the Master or the Ship-owner as the person liable for the contract and the consequences thereto. So at this stage of the proceedings, the argument that in absence of the ship-owner or the Charter party , (of which even otherwise there is no disclosure before the Court), it would be too much to non- suit the plaintif f on this ground alone. In matters like the one in hand, the identification of the carrier/ship-owner or for that matter the Charterer , comes up primarily as a threshold problem of who can be sued on the Bill of Lading by cargo interests. At this stage of the proceedings, the relationship between the parties is unclear for a number of reasons, including the withholding of certain facts, hence, for the present purposes, while dealing with an applications under Rule 731 of the SCCR, this Court will be fully justified in invoking the doctrine that all parties involved in the carriage of cargo are carriers by eliminating the initial skirmishing over the identity of the carrier issue and to allow all to lead evidence permitting the Court at the trial to come to a conclusion by ultimately allocating their responsibility for the dama ge. The burden to this effect, presently is not on the Plaintif f, but on the Ship-owner , Charterer and the Master inter-se. And more importantly , the seaworth iness of the Vessel, is also to be determined on the basis of the Charter Party Agreement, if any, (as it has not been placed on record), and therefore, presently , this Court cannot come to a definite conclusion, as to firstly , the damage, if any, has been caused, and secondly , who is responsible for it, but at the same time, while exercising Admiralty Jurisdiction, and as per settled law, can order for arrest of. Vessel, notwithstanding the niceties and complexities of the arrangement between the contesting parties. It is of pivotal importance to note that the Admiralty Jurisdiction is a jurisdiction to proceed against a Ship, which keeps on sailing in world waters, and coming in and out of the territorial jurisdiction of a particular Court. It is truly said that maritime liens and land liens have little in,common. The action in Rem against a particular Ship is intended to be a procedural device intended to secure appearance of the owner of the Ship and thus to gain personal jurisdiction over it, as normally; such person is always outside the Court jurisdiction, except the Ship owned by it, It is similar to that of foreign attachment. And once the owner is before the Court, then the question is to be determined according to the interests of the parties.
11. After having come to the conclusion that the claim of the Plaintif f is maintainable at least for the present purposes and for deciding the application under Rule 731 of SCCR, it may also be noted that though an order for arrest of the Vessel was passed on 28.06.2018; however , while doing so, and perhaps due to lack of assistance or may be for the reason that part cargo was still on-board, a simultaneous order for its release against furnishing of security as is done normally by the Court was not passed. Subsequently , an application has been filed on behalf of Defendant No.4 bearing C.M.A. No.98/2018 (listed at Serial No.2) on 09.07.20 18. However , even in the said application no such request has been made for seeking release of the Vessel upon furnishing security; but in fact discharge of the entire order has been sought on merits. Thereafter the matter has been pending for one reason or the other , and so also for carrying out laboratory tests through Nazir of this Cour t, and finally on 09.10.2018, the interim order of arresting the Vessel was recalled as the Plaintif f's Counsel had shown his inability to proceed with this matter by taking recourse to reasons which were unconvincing in the peculiar facts of this case. The said Order was challenged by way of Admiralty Appeal No.04/2018, which was decided on 15.10.2018, wherein, the learned Counsel for Defendant No.4/Respondent No.4 for the first time contended that his client was agreeable to furnish such guarantee to the satisfaction of the Court for release of the Vessel. The Appellate Court did not acceded to such request, however , after the matter was remanded to this Court, and was being heard, on 31.10.2018, a statement has been filed at bar by the learned Counsel for Defendant No.4, wherein, it is stated that Defendant No.4 is willing to furnish a P&I Guarantee for the balance cargo i.e. 1467 M. Tons equivalent to US $ 630,810/, In the circumstances for the purposes of the application under Rule 731 ibid, seeking confirmation of the ad-interim order of arrest of the Vessel, I will only confine myself to the actual amount of guarantee, which is to be furnished for the release of the Vessel. It is not in dispute that 1533 M. Tons has been delivered to the Plaintif f and on that cargo no objection has been raised. As discussed earlier that this case is only in respect of 3000 M. Tons covered by the Bill of Lading in question; whereas, the case of the Plaintif f is that out of this 1533 M. Tons, 900 M. Tons pertains to a separate Bill of Lading, which is not in dispute and is not to be counted towards the cargo covered by the Bill of Lading in question through this Suit. However , this does not seems to be a plausible or a reasonable stance on the part of the Plaintif f and I am not impressed with such line of arguments on the ground that before the Court no such pleading or fact has been averred in the entire plaint and it is only through arguments and certain documents placed in Court. that this stance has been taken. Once it is admitted that 1533 M Tons has been delivered and accepted, therefore, it cannot be a situation, wherein, the Plaintif f can be permitted to have the cake and eat it as well. Nowhere, in the plaint the Plaintif f has setup its case that 900 M. Tons was discharged and accepted and it pertains to some other Bill of Lading in which there is no dispute with the defendants. In fact the test report of the origin Port, on which subsequently much reliance has been placed on behalf of the Plaintif f, is also for 3000 M. Tons. This disclosure almost at the conclusion of the arguments of the learned Counsel for the Plaintif f has taken the Court by surprise and is a stunner and a jaw-dropper . This Court is short of words to express its anguish and distress in this regard. How come such a crucial fact is left out from the disclosure in the plaint. The Vessel is same, the cargo is same, the parties are same, and therefore, there appears to be no justifiable reason for not making such disclosure, except that this 900 M. Tons was to be left out, and not to be accounted for towards the quantity delivered by the Vessel in good and acceptable condition. Therefore, in all fairness Defendant No.4 cannot be burdened with the claim of the total cargo left in Vessel and the 900 M. tons already received must not be excluded, but included in the cargo already delivered for calculating the amount of guarantee for release of the Vessel.
12. Insofar as the arguments of learned Counsel for Defendant No.2 to the effect that no prima facie case has been made out and the ingredients of balance of convenience as well as irreparable loss are also lacking, it would suffice to observe that an application for arrest of a Vessel filed in terms of Rule 731 of the SCCR read - with the Admiralty Jurisdiction of this Court, is not an injunction application at par with and under an application of injunction in terms of Order XXXIX, Rules 1 and 2 C.P.C. By now it is settled law that Admiralty Jurisdiction is totally separate and independent from common law jurisdiction or the civil jurisdiction of a Court. As a contrast to common law or civil jurisdiction, by way of arrest of a ship.. it has the consequence of obtaining securi ty in lieu thereof for the claimed amount, and to establish its jurisdiction, even if there is no substantive link betwee n the claim and the jurisdiction, other than the presence of the arrested ship within the jurisdiction of the Court. It is in these peculiar facts and circumstances, as well as the nature of the Admiralty Jurisdiction under the 1980, Ordinance that an application for arrest of a vessel or ship is to be decided by the Court. The parameters for grant of an application under Order XXXIX, Rules 1 and 2, C.P.C. as again st an application under Rule 731 (ibid) are completely different are at variance. A learned Single Judge of this Court in the case reported as Spectre Consulting Limited through Attorney v. MT "Everrich" through Master and others (PLD 2018 Sindh 136) had the occasion to dilate upon this aspect of the matter and following observations are a complete answer to this objection; "16. The plaintif f has failed to establish any probable and persuasive right to grant any injunctive order under Order XXXIX, Rules 1 & 2 read with Section 94 C.P.C. in the variety and diversity of Mareva Injunction nor the plaintif f is entitled to the relief of attachment of cargo shipped to defendant No.5. Seeing as the plaintiff's own statement that they have not moved application under Rule 731 of Sindh Chief Court Rules (0. S) but under Order XXXIX, Rules 1 and 2 C.P.C., I feel like to elucidate that there is a marked distinction in the significances and characteristics of both the provisions, the ormer ma come to rescue in an urgent situation to cause the arrest of vessel moored/anchored within the territorial waters with or without condition of furnishing surety for further things to be decided then whereas in the latter situation some indispensable components and dynamics are to be satisfied such as the phrase prima facie case, balance of convenience and irreparable injury. With reference to my own judgment in the case of Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and others , reported in 2017 MLD 785, the phrase prima facie in its plain langu age signifies a triable case where some substantial question is to be investigated or some serious questions are to be tried and this phrase 'prima facie' need not to be confused with 'prima facie title'. Before granting injunctio n the court is bound to consider probability of the plaintif f succeeding in the suit. All presumptions and ambiguities are taken against the party seeking to obtain temporary injunction. The balance of convenience and inconvenience being in favour of the defendant i.e. greater damage would arise to the defendant by granting the injunction in the event of its turning out afterwards to have been wrongly granted, than to the plaintif f from withholding it, in the event of the legal right proving to be in his favour , the injunction may not be granted. A party seeks the aid of the court by way of injunction must as a rule satisfy the court that the interference is necessary to protect from the species of injury which the court calls irreparab le before the legal right can be established on trial. In the technical sense with the question of granting or withholding preventive equitable aid, an injury is set to be irreparable either because no legal remedy furnishes full compe nsation or adequate redress or owing to the inherent inef fectiveness of such legal remedy ."
13: The upshot of the above discussion is that, for the present purposes, the Plaintif f has made out a case for arrest of Vessel in respect of damage done to the cargo as alleged, whereas, if it is not done, then the claim would be frustrated, as in that case, the Ship-o wner or Charterer , as the case may be, will nor more be available within the territorial jurisdiction of this Court. Accordingly , I am of the view that it is a fit case, whereby , the injunctive order for arrest of the Vessel is to be confirmed; however , since no terms were settled in the said order for furnishing requisite security , both listed applications are disposed of with the following directions;
(i) The Defendant No.4 shall furnishes solvent surety /Bank Guarantee for US $ 630,810/- or its equivalent amount to the satisfaction of the Nazir of this Court.
(ii) On furnishing the solvent surety/Bank Guarantee as above, the arrest orders passed on 28.6.2018, shall deemed to have been recalled, and as a consequence thereof, the Office of this Court shall issue a release order as per rules.
(iii) Upon furnishing of such release order(s), the concerned Port Authorities, shall immediately , allow the Vessel to sail. Trading Corporation of Pakistan (Pvt.) Ltd., v . M.V . "AVIONA" and others 2014 CLD 1327 . 1