1. ' The plaintiffs filed a suit for recovery of Rs.132,762.55 against m.v. SEA ELITE being the disbursement made for and on behalf of vessel towards port dues, stevedoring charges, cash advance to Master, bunkers, stores and provisions, laundry charges, lubricant oil, launch hire, hotel bills and repairs etc. Alongwith the plaint a statement of account and photo copy of two receipts, two debit notes/invoices, two receipts for supply of bunker, and one letter of Union Bank of Middle East Ltd. have been filed. It may be mentioned here that the plaintiffs are a foreign company having their office in Dubai. The vessel is under a foreign flag of Panama. The entire disbursement and expenses were made at Dubai. On plaintiff's application for arrest of the vessel she was arrested by the following order dated 10-1-1985:- "The application for urgent hearing is granted.
2. ' Notice for 13-1-1985, and in the meantime the vessel in question shall be arrested unless security is furnished in the sum of Rs. 1,35,000 to the satisfaction of the Nazir of this Court or the Collector of Customs Karachi. Intimation of this order shall be given to the Collector of Customs, Karachi as well as the Dock Master of Karachi, Port Trust."
3. ' The defendant entered appearance through her Master who filed a counter-affidavit denying the claim and it was stated that proper reply to averments made in the plaint shall be given at the time of filing the written statement. The jurisdiction of the Court to entertain the suit under the Admiralty or the ordinary jurisdiction was challenged. It was also pleaded that according to the statement of account filed with the plaint if the freight earning lying with the plaintiffs is taken into consideration a sum of Rs. 57,700 is payable to the owners of the vessel. During the course of the hearing the plaintiffs filed all the vouchers and receipts in support of its claim and entries made in the statement of account.
4. ' The admitted position is that the plaintiffs have acted as agent of the vessel at Dubai. From the documents produced by the plaintiffs prima facie it seems that disbursements have been made by him and necessaries have also been supplied to the vessel at Dubai. he quantum and nature of the amount spent can be determined at the time of final hearing.
5. ' Mr. Ahsanali T. Khawaja the learned counsel for the defendant contended that if the receipts and bills submitted alongwith the plaint are taken into consideration, then after adjusting the freight in the hands of the plaintiffs substantial amount will be due to the owners. The entire argument is based on the contention that the entries in the statement of account in respect of which the supporting vouchers have not been filed with the plaint should be ignored and should not be taken into consideration. The plaintiffs have filed almost all the vouchers in their possession and I am not prepared to take a narrow view of the matter by excluding such items of expenses and disbursement in respect of which vouchers had not been filed with the plaint.
6. ' The next contention of the learned counsel for the defendant is that the suit filed by the plaintiffs is an action in personam. In this regard Mr. Shujaat has pointed but that although the name of the owner was mentioned in the title of the plaint and reference has been made in the contents of the plaint, he has deleted its name by scoring out the number only and does not intend to proceed against the owner. According to the learned counsel for the plaintiffs the owner's name and description has been given by way of address of the vessel. Since the plaintiffs do not wish to join the owner as a party, the action should be treated as an action in rem against the vessel only.
7. ' The main contention of the learned counsel for the defendant is that suit under the Admiralty Jurisdiction does not lie. In this regard reference has been made to the provisions of Admiralty Jurisdiction of High Court Ordinance, 1980 hereinafter referred as the Ordinance.. Section 3 subsection (2) categorises the causes, questions or claims in respect of which Admiralty Jurisdiction can be exercised. The relevant provisions for purposes of the present suit are section 3(2)(1) and (o) which are reproduced as follows:- tt(I) any claim in respect of necessaries supplied to the ship.
(o) a claim by a Master shipper, charterer and agent in respect of disbursement made on account of a ship."
8. ' Mr. Ahsanali T. Khawaja has referred to section 4 of the Ordinance and relying on Yousuf Kazi v. S.S. PHONIX PLD 1978 Kar. 1052 contended that action in rem will not lie. In this case the agent had filed a suit in rem under the Admiralty Jurisdiction of this Court against a foreign vessel for recovery of an amount being the balance due from the owner as per disbursement account. It may be mentioned that when that suit was filed the Admiralty Jurisdiction of this Court was governed by the provisions of Admiralty Court Act, 1840 and Admiralty Court Act 1861 and the Admiralty Court had jurisdiction in respect of claim for necessaries supplied to the ship. The agents could not file action in rem in respect of disbursement made on account of the ship as provided by section 3(2)
(o) of the Ordinance. In Yousuf Kazi's case the agents had filed suit in respect of necessaries and disbursements made on account of the ship but many of the items did not fall within the ambit the 'necessaries supplied to the ship'. On the basis of the disbursement account the Court came to the conclusion that the claim relating to necessaries stood satisfied by adjustment from the freight earning in the hands of the agents and therefore the action was not maintainable.
9. ' In the present case at this stage it cannot be determined that the claim of disbursement made by the plaintiffs has been satisfied and adjusted in the freight earning as the amount claimed by the plaintiffs is the balance after adjusting the freight earning. This aspect can be decided after the evidence has been recorded. The legal position under the Ordinance is completely different from what it was under the Act of 1861. Besides the claim for necessaries, the agent can now file action in rem for a claim in respect of disbursement made on account of the ship. It is a matter of common knowledge that all expenses incurred by an agent may not be in respect of necessaries but it may be classified as disbursement made on account of the ship. Such later claim is now recoverable under section 3(2)(o). Therefore on facts and law both Yousuf Kazi's case is distinguishable.
10. ' The contention that the Court has no jurisdiction to entertain action in rem is devoid of any force.
11. The High Court can exercise Admiralty Jurisdiction in respect of question, claim and cases specified in clause (a) to (r) of subsection (2) of section 3 of the Ordinance. In all cases the jurisdiction can be invoked by an action in personam subject to the limitation placed by section 5 relating to the claim arising out of collusion and other similar cases specified therein. Section 4 of the Ordinance provides the mode of exercise of Admiralty Jurisdiction. In cases falling under clauses (a) to (i) and (r) of subsection (2) of section 3 action in rem can be filed against the ship or property in question. Action in rem can also be filed where the claimant has a maritime lien or charge on the ship or other property. Yet in another class of cases falling under clauses (e) to (h) and (j) to (q) the Admiralty Jurisdiction can be invoked by an action in rem against the ship provided the person who would be liable for such claim in an action in personam was, when the cause of action arose, the owner, charterer or in possession and control of the ship and at the time when action is brought that person beneficially owns the majority shares in the ship. In this regard reference can be made to Messrs Sun Line Agencies Ltd. v. Vessel m.v. "PSILORITIS" and 2 others 1984 CLC 1553. It is thus clear that an agent can file an action in rem ink respect of claim for the disbursement made on account of the ship provided the conditions laid down by section 4 of the Ordinance as aforestated are satisfied. It is not the case of the defendant that the plaintiffs are not the agents of the vessel. From the documents filed prima facie it seems that disbursement has been made by the plaintiffs.
12. At the time disbursement was made and when the suit was filed the ship has been under the ownership of Transafe Navigation Co. Inc. who would have been liable for the claim in an action in personam. The Court has therefore jurisdiction to entertain action in rem which is maintainable.
13. ' Another objection of the learned counsel for the defendant is that as the plaintiffs are not carrying on business in Pakistan nor cause of action has arisen within the territorial jurisdiction of this Court, the suit cannot be instituted here. This argument is based on the provisions of Code of Civil Procedure and completely ignores the nature and characteristics of an action in rem which is different from an ordinary civil suit. In exercise of Admiralty Jurisdiction which can be invoked by an action in rem, the Admiralty Court can exercise jurisdiction over all ships whether Pakistani or not, and whether registered or not and wherever the domicile of their owners may be. The Admiralty Court can exercise jurisdiction in respect of all claims, causes and questions specified in clauses
(a) to (q) of subsection (2) of section 3 of the Ordinance wherever arising. If the claim is entertainable under the Admiralty Jurisdiction which can be invoked by an action in rem, then irrespective of the fact that the cause of action has arisen within the territorial jurisdiction of the Court or not and the parties are domiciled in a foreign country, an action in rem can be entertained. In my opinion the Court has jurisdiction to entertain the suit which is maintainable in law. For these reasons by a short order passed on 21-1-1985 I have confirmed the order of arrest of vessel passed earlier and granted the application. 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.