1. ' The plaintiff has filed suit for recovery of US $3,088.25 equivalent to Rs,43,242.50 being the balance of wages due from the defendant. The plaintiff was employed as Master on a monthly salary of US $2,160 with effect from 24-7-1983. According to the plaintiff he continued in service till 28th November, 1983 and a sum of US $9,476 was due as wages and other emoluments against which US $6,387.75 were paid on 4-1-1984 leaving a balance of US $3,088.75. The plaintiff filed this admiralty suit and got the defendant arrested which was released on furnishing a bank guarantee.
2. The owners of the defendant vessel entered appearance and filed their written statement. They denied that wages and dues are payable up to 28-11-1983. According to them the wages were due up to 18-10-1983 when in terms of the contract full and final settlement was effected between the parties and payment amounting to US $6,387.75 equivalent to Rs,86,106.78 was paid on 4-1-1984.
3. The plaintiff's employment and terms of contract have not been denied but the period of employment from 19-10-1983 to 28-11-1983 has been denied. On the basis of pleadings following issues were framed:
(1) Whether the plaintiff was employed on defendant's vessel with effect from 24-7-1983 till 29-11- 1983 and if so on what terms and conditions.
(2) Whether the defendant has already paid the earned wages to the plaintiff and nothing is due to him as alleged in the written statement.
(3) To what relief the plaintiff is entitled.
4. ' The parties have led evidence and by consent, the evidence recorded in Suit No, 707 of 1984 has been read as evidence in this suit (No,708/84) and vice versa.
5. ' ISSUE NO, 1.-- So far employment is concerned there is no dispute that the plaintiff was employed as Master on 24-7-1983 under a contract Exh.5/1. The terms and conditions of the employment are set out in this document which are not disputed. From this admitted document it is fully established that the plaintiff was appointed Master on 24-7-1983 on monthly salary of US $2,160.
6. The owners had agreed to pay wages in full at the end of every month, wages were to be remitted in full direct to Diamond Mubarak and Company Karachi in Pakistan currency and the same were to be deposited in the respective account of the plaintiff. The plaintiff was to be on a probationary period for three months during which the owners had reserved their right to discharge the plaintiff without previous notice and to repatriate him on company's expenses. The employment was for five months and for earlier termination 15 days' notice in writing was necessary on either side. The only disputed question is whether the plaintiff remained in employment from 19-10-1983 to 29-11- 1983 because there is no dispute in respect of employment from 24-7-1983 to 18-10-1983. The plaintiff claims employment up to 29-11-1983 but the defendant claims that he remained in employment only up to 18-10-1983. There is no dispute that the plaintiff was repatriated on 29-11- 1983. According to the plaintiff up to the date of repatriation he remained on board the ship and was in service. But the defendant's contention is that the plaintiff was discharged on 18-10-1983 when his account was settled but as payment had not been made he remained on board the ship as a guest and during this period he did not perform any duty. In support of this plea the learned counsel for the defendant has referred to statement of account of wages Exh.5/4 which is signed by the plaintiff. This statement of account is for the period commencing from 24-7-1983 to 18-10- 1983 and the balance due up to that date was US $6,672. The learned counsel for the defendant has also referred to Exh.5/2 which is a receipt signed by the plaintiff on 3-1-1984 acknowledging the payment amounting to US $6,387.75 equivalent to Rs,86,106.87 being the payment of wages "in full settlement". According to the defendant this document clearly proves that the plaintiff has accepted the amount in full and final settlement of his claim for wages, and therefore, his employment could not be extended beyond 18-10-1983. On the other hand the plaintiff has relied on a certificate Exh.5/3 issued by the owners of the defendant certifying that the plaintiff has served on board M.V.F. HAMOOR from 24-7-1983 to 29-11-1983. The learned counsel for the defendant has relied on Exhs.5/2 and 5/4 and contended that both the documents read together clearly establish that the plaintiff has worked up to 18-10-1983 and on 3-1-1983 accepted the payment in full settlement. Mr. Hamid Hussain the learned counsel for the plaintiff has contended that the statement of account Exh.5/4 was only up to 18-10-1983 and the receipt was executed in respect of payment received in pursuance of that statement of account. According to the learned counsel the receipt does not reflect the settlement of the entire claim up to 29-11-1983. Mr. Hassan Inamullah the learned counsel for the defendant has also referred to Exh.4/4 produced in Suit No, 707 of 1984 a letter dated 5-6-1984 in which the plaintiff has made his claim for balance wages from 19-10-1983 to 29-11-1983. From this letter the learned counsel for the defendant wants to infer that the plaintiff was no longer on duty from 18-10-1983 and from the date till his departure on 29- 11-1983 he remained on board without performing any duty. It is significant to note that this letter has not been replied by the defendant. The claim that the plaintiff, was kept on board up to 29-11- 1983 on the promise to pay the wages up to departure i.e, 29-11-1983 has not been denied. The entire letter has to be read as a whole and no inference can be drawn by referring to a certain statement out of its context. From this letter it is established that the plaintiff was to be repatriated on 18-10-1983 and all dues were to be paid till that date, but as it was not paid he remained on board A up to 29-10-1983 and was repatriated on 29-11-1983 on the condition that the wages up to 29-11-1983 will be paid. In this letter the plaintiff has clearly stated that the owners had promised to pay up to 29-11-1983 and to sign statement of account in Hotel at Tehran from where he was to fly to Karachi, but they did not turn up and he had to come to Karachi with wages remaining unpaid. If this statement was incorrect the defendant's owners should have replied denying the same.
7. The defendant does not state that at any stage a discharge letter or certificate had been issued to the plaintiff. The letter dated 5-6-1984 does not mention that the plaintiff had been discharged on 18-10-1983. The defendants have not produced any letter to show that the plaintiff's service was terminated on 18-10-1983 or he was discharged on that date. Nor there is any evidence to show that the discharge if any was made before the shipping Master or any officer of the Iranian Government, or any authorized officer of the Pakistan Embassy. It is an admitted position that so far the plaintiff has not been signed off. The defendant has not even produced the log book of the vessel to show that the plaintiff had been signed off or discharged on 18-10-1983.
8. ' The fact that the plaintiff has executed a receipt Exh.5/2 on 3-1-1984 for US $6,387.75 equivalent to Rs,86,106.87 being payment of wages in "full settlement" does not establish that the plaintiff has waived his claim from 19-10-1983 to 29-10-1983 or that the settlement was in respect of the entire wages up to 29-11-1983. According to the defendant's witness (D.W.1) the receipt was obtained in respect of statement of account of wages which related for the period from 24-7-1983 to 18-10- 1983. Therefore, it cannot be contended that by accepting the amount shown in the receipt, the plaintiff has accepted and finally settled his wages up to 29-11-1983. It is, pertinent to note that the Master of a ship shall, so far as the case permits, have the same liens and remedies for the recovery of his wages as a seaman has under any law. Under the Merchant Shipping Act, if the wages have accrued to a Seaman, by an agreement he cannot be deprived of any remedy for its recovery and such an agreement is void and the amount due is recoverable. Therefore, the plea of waiver or settlement is of no avail to the defendant. There is an additional factor which establishes that the plaintiff was in service up to 29-11-1983. Exh.5/3 is the certificate issued by the defendant's owner in which it has been stated that Capt. I.T. Mukadam served on board H.M.V. Hamoor as Master from 24-7-1983 to 28-11-1983. This clear statement of the defendant's owner proves the length of plaintiff's employment. D.W.2 has explained that it was a certificate. I am unable to follow this explanation. As the certificate has been signed by D.W.2 and contains a statement that the plaintiff remained in employment up to 28-11-1983 and there being no allegation that it was obtained by fraud, it conclusively establishes that the plaintiff served as a Master up to 28-11-1983.
9. The defendant could have established plaintiff's period of service from the log book of the vessel which is maintained on board the ship. This document would be in possession of the defendant's owner or on board the vessel, but they have not cared to even produce it to establish the length of service of the plaintiff. From the non-production of the authentic document which in the normal course should have been in possession of the defendant or her owner, adverse inference has to be drawn. My finding on this issue is that the plaintiff remained in employment from 24-7-1983 to 28- 11-1983. There is no dispute about the terms and conditions as contained in the contract of employment.
10. ' ISSUE NO, 2.-- The plaintiff has been paid wages up to 18-10-1983 thereafter no wages have been paid. In this regard the defendant has pleaded that in view of the receipt executed by the plaintiff on 3-10-1984 the entire wage account stands settled. According to the defendant final settlement was effected between the parties on 18-10-1983 and payment in full was made on 4-1-1984. As discussed in issue No,1 this payment was made in pursuance of the statement of account which was only for the period ending 18-10-1983. This statement of account does not relate to the wages beyond that period and by receipt Exh.5/2 relied upon by the defendant neither the right to claim wages from 19-10-1983 to 28-11-1983 is waived nor fully settled. The stand taken by the defendant on this aspect of the case is contradictory. In the written statement it has been pleaded that in view of the receipt Exh.512 there was a final settlement. D.W.1 has stated that although the plaintiff was on board up to 28-11-1983 wages from 19-10-1983 to 28-11-1983 were not paid because he had agreed with the owners that if the wages up to 18-10-1983 are paid he would not claim that amount. This according to the witness was verbally agreed. According to D.W.2 although the contract was terminated on 18-10-1983 as remittance was not made, the plaintiff stayed on board up to 28-11-1983 as guest. He has further stated that from 18-10-1983 till 29-11-1983 there was no further settlement between the parties. If the statement of P.W.1 is accepted then it clearly implies that wages from 19-10-1983 to 29-11-1983 were due but under an agreement the plaintiff has waived it. This has not been pleaded by the defendant. So far the statement of D.W.2 is concerned he admits that the plaintiff remained on board, but did not perform any duty. In view of the discussion under issue No,1 the plaintiff has proved that he is entitled to wages up to 29-11-1983 i.e, the date of his repatriation.
11. ' Mr. Hassan Inamullah the learned counsel has contended that after accepting wages on 3-1-1984, the plaintiff remained silent for a long period, therefore, it should be assumed that he had accepted the settlement. This contention is contrary to the facts on record. It has been established that the plaintiff has been making claim and visiting the office of the defendant's agents and also the office of the Shipping Master. If the plaintiff would have accepted the payment in full settlement he would not have perused the matter further. In any event while making claim before Shipping Master and the defendant's agent, the plaintiff wrote to the owners on 14-5-1984 and 5-6-1984, giving detail-of his claim. The defendant's owner did not reply. From these facts it cannot be inferred that the plaintiff had made full settlement of hi entire claim. My finding is in the negative.
12. ' ISSUE NO,
3. As there is no dispute about the rate of wages, in view of finding on the preceding issues, the suit is decreed for Rs, 43,242.50.