' The defendant No, 1 has filed this application for return of the plaint as the cause against the defendant No, 1 shown in the plaint cannot be entertained under the admiralty jurisdiction. The plaintiff is a charterer of m. v. Ken Lucky under a charter-party agreement, dated 22-5-1984. The plaintiff time-chartered the vessel to defendant No, 2 under an agreement, dated 24-8-1984 and the defendant No, 3 sub-time chartered the said vessel to defendant No,
2. The defendant No, 2 sub-voyage chartered the said vessel to defendant No, 1 for carriage of fertilizers from Tampa Florida to Karachi. Under clause 18 of the charter-party agreement, dated 24-8-1984 the plaintiff is entitled to claim lien upon all cargoes freight, and sub-freight for the amount due under the charter-party agreement. The defendant No, 2 paid part of the hire charges to the plaintiff and failed to pay two instalments each amounting to U. S. $ 1,14,075. The plaintiff as respondent owner of the vessel exercising its right under the charter-party served a notice on the defendant No, 1 claiming lien on all chargees, freights, sub-freights and or amounts due to it. It is alleged that the defendant No, 1 has received U. S. $ 98,759.07 as sub-freight for carriage of fertilizer upon which the plaintiff has exercised its lien and is entitled to recover from it. After receipt of notice, dated 19-10- 1984 the defendant No, I filed an action in rem being Admiralty Suit No, 750 of 1984 in this Court for recovery of its claim of Rs, 1365,763.25 equivalent to US. $ 91,673.64 against defendant No, 2 and got m.v. KEN LUCKY' arrested on 21-11-1984. The order of arrest was recalled on 26-11-1984. The plaintiff claims that due to illegal arrest of the vessel, it has suffered loss of U. S. $ 91,559 which the defendant No, 1 is liable to compensate. Under an order of the Court the defendant No, 1 has deposited U. S. $ 98,759. 07 with the Nazir of this Court on 26-11-1984.
' From the pleading it is clear that the plaintiff has filed action in rem for recovery of U. S. S 98,759.97 deposited in Court by defendant No:1 for adjustment toward hire charges due from the defendant No, 3 in respect of which lien was exercised when it was lying in the hands of the defendant No, 1.
The other claim of U. S. $ 91,559 is in respect of damages suffered by the plaintiff due to the detention of vessel under an admiralty action by the defendant No,
1. So far the defendant No, 1 has not flied any written statement.
2. Mr. Usmani the learned counsel for the defendant No, I has contended that the claim in suit against defendant No, 1 is not entertainable under the Admiralty Jurisdiction of this Court. Under section 3, subsection (2) of the Admiralty Jurisdiction of the High Court Ordinance nance No, XIII of 1980) the causes, questions, or claims in respect of which Admiralty Jurisdiction is exercised by the High Court have been clearly specified and enumerated. Section 3, subsection (2) (h) of the Ordinance is attracted to the plaintiff's claim in suit. It reads as follows: Section.
3.
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.
(h) any claim arising out of any agreement relating to the carriage of goods by a ship or to the use or hire of a ship.'
' Mr. Sarwana has relied on Sui Gas Tranymisyion Co. Ltd. v. Tn. v. `Goods Herald' and 3 others (1). Mr Usmani contended that a claim in torts is not covered by section 3 (2) (h) and further that to attract this provision the claim should arise out of any agreement relating to the carriage of goods by ship or to the use of hire of a ship and such agreement should be between
(1) 1983 CLC 886 the parties to the suit. In support of his contention he has relied on the following judgments:-
(1) The Eschersheim (1976) 2 Lloyds Law Reports 1.
(2) The Antonis P. Lemos (1983) 2 Lloyds Law Reports 310.
' The contention raised by the learned counsel for the parties requires interpretation of section 3 (2)
(h) of the Ordinance. It is identical to section 1(1) (h) of Administration of Justice Act, 1956 and section 20 (2)(h) of the Supreme Court Act, 1981 of U. K.
3. In The Eschersheim a claim was made for negligence in performance of salvage agreement. In this case two plaintiffs namely ship-owners and cargo-owners had made respective claims under the admiralty jurisdiction which at that time in England was governed by the Administration of Justice Act 1956 which is identical to Ordinance XIII of 1980. In this case salvage agreement was entered into by the Master of Erkowit on behalf of cargo-owners as well as the shipowners with the salvors. These salvors towed Erkowit. Before reaching the entrance of the port the salvors beached the vessel outside the port where it remained exposed to weather. The salvors attempted to patch Erkowit with canvas and wood. But the patches proved inflective and vessel was broken up by waves and cargo was swept away. The ship-owners and cargo-owners claimed damages for negligent performance of the agreement. On behalf of the salvoes it was argued that restricted meaning should be given to the term 'agreement made in relation to the use or hire of any ship' and plaintiff must be a party to the agreement in order to show that the claim 'arises out of agreement'. After dealing with the historical background of the Admiralty Jurisdiction this plea was repelled and it was observed that see no reason in that context for not giving to them their ordinary wide meaning. It was held that salvage agreement constituted an 'agreement for the use of a ship'.
It was further' held that the 'claim of both ship-owners and cargo-owners falls within paragraph 'H' section 1(1) as they are claims in connection with the `Rotesand' and that they are enforceable under section 1 (1) (h) by an action in rem against the Rotesand or any of her sistership. In this judgment except the statement of fact that the parties to the suit were parties to the agreement no clear observation has been made that the parties to the action should be parties to the agreement.
4. In The Antonis P. Lemon (1) the owners of the ship sought to set aside the writ in rem and warrant of arrest on the ground that the claim in the action is outside the admiralty jurisdiction of the High Court. There the Container tank Corporation claiming to be the desponent owners of the ship Antonis P. Lemos agreed to hire the ship to Sammisa Co. Ltd. As Charters. By a charter-party Sammeise Co. Ltd. Agreed to let the ship to Samick Lines Co. Ltd. For one time chartered trip. The ship-loaded cargo at Houston for carriage to Alexandria. On arrival at Alexandria the draught of the ship exceeded 32 ft. And she was unable to berth until she had reduced her draught by discharging some of her cargo into lighters. That operation caused delay and extra expenses to the plaintiff in respect of which it claimed damage. The plaintiffs claimed that the damage was caused dae to the negligence of the master for which the defendants are liable. There was no contract between the plaintiff and Sammise Co. Ltd. The defendants. The plaintiffs claim was solely on negligence. The question came up for consideration whether the claim was covered by the
(1) (1976) 2 Lloyds Law Rep. 310 term 'claim arising out of any agreement relating to the carriage of goods in ship or to the use or thire of a ship'. Relying on The Es,hersneim it was observed as follows 'It was argued on behalf of the plaintiffs, that although the relationship between the piantiffs and the defendants is not a contractual one, the relationship of preximity which gave rise to the duty of care arose by reason of a series of contracts, one of which was the charter-party by which the plaintiffs chartered the ship. In my judgment a claim in negligence arising in such circumstances is not a claim which arises out of any agreeme t relating to the hire of a ship. To come within that paragraph the claim must have its origin in an agreement between the plaintiffs and the defendants.'
5. With respect, I am unable to agree with this interpretation of para. (h). It is well-settled that ordinary and natural meaning has to be given to para. (h). It describes the nature of claim in respect of which admiraltaction can be filed under it. The claim should arise from any agreement.
And such agreement should relate to carriage of goods in a ship or the use or hire of the ship: Section 3 (2) (h) does not specifically provide that the agreement out of which claim arises should be between the partie to the suit. By giving this meaning restriction will be placed on the word `any agreement' limiting it between the parties to the suit. There may be cases where under an agreement for carriage of goods by ship or to the use or hire of the ship both the parties may agree that the freight or charter hire be paid to a third party. In such a case if the third party is not paid, will his claim not arises out of an agreement for carriage of goods by ship or to the use of hire of the ship? Should he be deprived filing an admiralty action because he is not a party to the agreement? This would be putting limitation and doing violence to the ordinary, plain and natural meaning of para. (h). The words 'any agreement' have to be given a wide meaning and it cannot be limited to the agreement between the parties to the suit. Section 3 (2)(h) places limitation on the nature and subject-matter of the agreement but not on the parties claiming under the agreement. The judgment of Sheen, J. Was challenged before Court of Appeal which reversed it.
Reference can be made to The Antonis P. Lemos (1) where Court of Appeal held that if a claim arose out of agreement relating to carriage of goods in a ship or to the use of hire of a ship then although such agreement was not made between the parties to the action, the claim was] covered by section 20 (2) (h). This judgment was challenged before the House of Lords which affirmed the judgment of the Court of Appeal. Reference can be made to The Antonis P. Lemos' case (2) where it was held that: 'Thirdly, section 20 (2) (h) of the 1980 Act contained no words which, either expressly or by necessary implication, restricted the agreement referred to in it to agreements made directly between the two parties c to an action. Fourthly, there was no good reason, in the absence to the contrary, for importing into section 30 (2) (h) restrictive words having that effect'.
' In this judgment The St. Elefterio Schwarz & Co. (Grain) Ltd. v. St. Elefterio ex-Arion (owners) (3) and The Semmar (4) were distinguished. The Antonis P. Lemos was affirmed.
(1) (1984) 2 All E R 353 (2) (1985) 1 All E R 695
(3) (1957) 2 All E R 874 (4) (1983) 1 Lloyd's Rep. 295 ' The contention of Mr. Usmani, therefore, has no force.
5. The learned counsel for the defendant No, 1 has contended that the claim for damages for detention of the ship is a claim purely in tort and cannot be entertained under section 3 (2) (h) of the Ordinance. There can be no cavil that in the present suit the claim for damages does not arise from any agreement. According to Mr. Sarwana it arises from the charter-party agreement or sub- charter. The claim for damages for detention has no nexus with any contract. A claim in tort can be subject-matter admiralty jurisdiction provided it arises out of or is connected with an agreement relating to carriage of goods by ship or hire or use of the ship. Reference can be made to Sui Gas Transmission Co. Ltd. v. m. v. Good Herald and The Antonis P. Lemos. The plaintiff's claim for U. S. $ 91,558 being the damage suffered by it due to allegal detention of the vessel is a claim in tort and does not arise out of any contract for carriage o goods by sea or use of hire of the vessel. Such claim cannot be entertained under the admiralty jurisdiction. So far the other claim of U. S. $ 98,759.07 is concerned it arises out of contract for use and hire of the ship. In these circumstances, the suit against defendant No, 1 cannot be dismissed.
' The application is dismissed.