' The Nazir has made a reference dated 29-10-1987, in Execution Application No,118 of 1987, stating that the decree in A. Suit No,482 of 1984 (hereinafter referred to as Suit A) in execution application appears to be not a claim for wages and, therefore, he has sought clarification whether he should make payment. It was also suggested that a notice of the reference to the Advocate for plaintiffs in A, Suit No,649 of 1984 (hereinafter referred to as Suit B) may be issued. Whereas in A. Suits Nos. 607 of 1984 and 608 of 1984 (hereinafter referred to as Suits C and D respectively) the question involved is, as to whether the plaintiffs in Suits C and D have preferential rights over the plaintiffs in Suits A and B.
2. It may be stated that a number of suits were filed against the vessel, named, "F.T. PARIVASH".
While the suits were pending the vessel was sold and out of the sale proceeds a number of decrees have already been satisfied. The plaintiffs in suit A obtained a decree in respect of an agreement loaning out the services of an engineer to the owner of the vessel, whereas the plaintiffs in suit B obtained a decree as the mortgagee of the vessel. The plaintiffs in suits B and C have obtained decrees inter alia for supplies.
3. I have heard Mr. Muhammad Nairn, learned counsel for the plaintiffs in Suit A, Mr. Sharaf Faridi, the learned counsel for the plaintiffs in Suit. B, and Mr. Osman Ghani Rashid, learned counsel for the plaintiffs in Suits C and D.
4. Mr. Muhammad Naim, learned counsel for the plaintiffs in Suit A urged as follows:-
(1) That since the plaintiffs in Suit B had the knowledge of the pendency of Suit A and as they had not become a party to Suit A to oppose it being proceeded as an admiralty suit for wages of a crew, they cannot at this stage appear and oppose the payment of the decretal amount to the plaintiffs.
(2) Even otherwise Suit A was for wages in terms of section 3(2)(n) of the Admiralty Jurisdiction of the High Courts Ordinance, 1980, (hereinafter referred to as the Ordinance).
5. On the other hand Mr. Sharaf Faridi, the learned counsel for the plaintiffs in Suit B has contended that the plaintiff in the above suit were not obliged to become a party to Suit A and that they are entitled to oppose the payment of the decretal amount tot plaintiffs in Suit A as the question of priority in terms of section (n) of the Ordinance is to be determined by the Court when a dispute arises.
6. Mr. Muhammad Naim in furtherance of his above first contention has referred to Paragraph 310 of the British' Shipping Laws (Admiralty Practice), Vol. I, 3rd Edition, and also Paragraph 375 of the Halsbury's Laws of England, Fourth Edition which read as follows:- "Paragraph 310.--Order 75, rule 17, makes the following provisions with regard to intervenors; 17.(1) Where property against which an action in rem is brought is under arrest or money representing the proceeds of sale of that property is in Court. a person who has an interest in that property or money but who is not a defendant to the action may, with the leave of the Court, intervene in the action.
(2) An application for the grant of leave under this rule must be made ex parte by affidavit showing the interest of the applicant in the property against which the action is brought or in the money in Court.
(1) A person to whom leave is granted to intervene in an action must enter an appearance therein in the registry or, if the action is proceeding in a district registry, that registry, within the period specified in the order granting leave; and Order XII, rules 1 to 4, shall, with the necessary modifications, apply in relation to the entry of appearance by an intervenor as if he were a defendant named in the writ.
(2) The Court may order that a person to whom it grants leave to intervene in an action shall, within such period as may be specified in the order, serve on every other party to the action such pleading as may be so specified."
HALSBURY: "375.--Persons who may appeal --The owners of the property proceeded against and all persons directly interested therein may appear and defend, without filing an affidavit and showing their interest, at any time before judgment. Further, any person not named in the writ may intervene in an Admiralty action in rem and appear by leave of the Court, obtained on application by affidavit showing that he is interested in the res under arrest or in the fund in the registry. Examples of persons having an interest are mortgagees, trustees in bankruptcy, underwriters who have accepted abandonment, charterers, persons who have possessory liens, or competing maritime liens, and generally persons who are plaintiffs in other actions in rem against the same property. If, however, the intervention is unnecessary to protect the intervener's rights he will be refused his costs. Persons who intervene in order to defend the action cannot set up defences which are not open to the owner of the res."
7. In my view the above Practice and the Paragraphs from the Halsbury's Laws of England do not make it obligatory for a third person to become party to an admiralty action, but it gives an option.
In other words the above practice is an enabling practice, which entitles a person having a claim against a subject-matter of an admiralty action to become a party to such action. It does not provide any consequence for not becoming a party to it. I am also inclined to hold that the above- quoted paras have no relevance to the present case. In the instant case it is not the case of the plaintiffs in Suit A that the plaintiffs in Suit B were not prosecuting their claim in their suit. Even if I were to hold that under the above British Practice, it is mandatory to become a party, it would not make any difference as it will not cover a case where a plaintiff prosecutes his own suit for a maritime claim. If I were to accept the above contention of Mr. Muhammad Naim, it will lead to absurd result, for example there are one hundred admiralty suits against a particular vessel for different claims, if Mr. Muhammad Naim's contention is to be accepted as correct, it means that all the hundred plaintiffs should become party to each of the aforesaid 100 suits. In the instant case all the suits were proceeded before the same Court and probably more or less, at the same time. I may also observe that under subsection (2) (n) of section 3 of the Ordinance a High Court has to determine the question of priority of claim in respect of the sale proceeds, of the vessel if A there is a dispute as to the entitlement inter se between different decree-holders. In my view anybody having a maritime decree can come forward and say that he has preferential claim over the other decree-holders and the Court is obliged to decide the question.
7-A. As regards Mr. Naim's second submission that the claim in Suit A was for wages in terms of subsection (2) (n) of section 3 of the Ordinance, it may be observed that he has referred to Paragraphs 312, 314, 320 and 321 from the British Shipping Laws, Vol. 4, Maritime Liens. By THOMAS; relevant portion of each of the above paragraphs reads as follows: "Paragraph 312.--.................. The upshot is that the maritime lien for wages is co-extensive with the Court's jurisdiction and therefore exists in relation to claims arising out of both ordinary and special contracts, whether or not the wages were earned on board the ship.".
' Paragraph 314.-- The jurisdiction of the Admiralty Court to entertain a claim by a master for wages has throughout been entirely statutory in origin and is currently provided for in the Administration of Justice Act, 1956, S.1(1)(o) whereby the. Court has jurisdiction to determine; 11 .................... Any claim by a master of a ship for wages and any claim by or in respect of a master.....Of a. Ship for any money or property which, under any of the provisions of the Merchant Shipping Acts, 1894 to 1979 is recoverable as wages or in the court and in the manner in which wages may be recovered."
"Paragraph 320.-- These citations make it plain that benefits which accrue to a mariner, other than wages in the strict sense, by virtue of his employment, are to be considered as wages for the purposes of Admiralty jurisdiction. Such benefits, in so far as they are "a profit or advantage" arising from employment as a mariner, may also be fairly considered as emoluments."
"Paragraph 321.--The upshot of the 'policy of the Admiralty has been a recognition of a large number of benefits and allowances which flow under a contract of employment, and which have tended to increase in number with changing conditions of employment and welfare, as wages.
These include conditional payments; victualling allowances provided for under the contract of employment; profit sharing payments; vacational pay, sick pay and overtime payments; employees and employer pension fund contributions; national health insurance contributions; social benefit contributions; provident fund contributions; income tax; trade union dues; legal expenses. e:g. Stamp duty, related to any head of claim."
8. Mr. Muhammad Naim has also referred to the case of HALCYON SKIES reported in The Law Reports 1977 Q.B.D page 14, wherein BRANDON, J., held: "that the plaintiff's claim for the employer's contribution towards pension fund which was also contributed by the employee was covered by the term 'wages'.
9. From the above-quoted observations and the case cited above, it seems that the modern view obtaining in England is to give liberal interpretation to the term "wages" as to extend admiralty jurisdiction for the benefit of seamen. In the cases referred to in the above quoted passages and the case cited the plaintiff was a seaman or a member of crew, but not a third person. In the instant case it is an admitted position as per averments in the plaint of Suit A the plaintiff had loaned out services of one of their Engineer C.W. SCHEENLOOP to the owner of the vessel under a contract, which provided that the former was to receive certain payment directly from the owner of the (vessel and a sum of U.S. $.2,000 per month was, to be paid to the plaintiff as consideration for loaning out the services of the aforesaid Engineer. It is not indicated how much amount out of the above U.S. $.2,000 per month was to be paid to the said engineer and how much amount was to be retained by the plaintiff as consideration. It is true that the Suit A proceeded on .The assumption that it was a maritime claim for wages but when the question of priority is to be determined inter se between the various decree-holders, the Court is obliged to examine the nature of claim in each of the suits. An uncontested decree passed in Suit A cannot be binding on the plaintiffs of Suite B, when they were not a party to Suit A and vice versa.
10. Mr. Muhammad Naim has also referred to the case of THE SIND PROVINCIAL CO-OPERATIVE WHOLESALE SOCIETY LTD. v. ABDU WEAVERS CO-OPERATIVE SOCIETY AND OTHERS -reported in PLD 1960 (W.P.) Kar. 946 in order to contend that the executing Court's jurisdiction is confined to the question of jurisdiction and the questions which were decided in the judgment and which stand merged into the decree cannot be re-opened. The above case has no application to the instant case in view of section 3(2)(n) of the Ordinance, which enjoins the High Court to decide the question of priority.
11. On the other hand Mr. Sharaf Faridi has referred to the two definitions of the word "wages" given in the following dictionaries.
"THE MARINE ENCYCLOPAEDIC DICTIONARY" BY ERIC SULLIVAN, Second Edition, page 453: "WAGES: ' A remuneration for services or work rendered by individuals or earnings derived from work done.
Wages are paid according to agreements."
"BLACK'S LAW DICTIONARY, Revised Fourth Edition Page 1751: MARITIME LAW: "The compensation allowed to seamen for their services on board a vessel during a voyage."
10. On the basis of the above definitions, it has been contended by Mr. Sharaf Faridi, the learned counsel for the plaintiffs in Suit, that a third person's claim on account of services of a seaman cannot be included in the definition of term "wages" . In my view if a seaman is entitled to receive any amount or benefit which can be translated into money on account of his services as a seaman, it will be covered by the definition of wages and can be the subject-matter of an admiralty suit under the Ordinance but the plaintiff in the suit should be either the seaman himself or his authorised agent. Mr. Sharaf Faridi has also referred to the case of TWAHA v. THE MASTER m.v.
"ASIAN QUEEN" and 2 .Others PLD 1982 Kar. 749 in order to show how the question of priority in respect of claims of the sale proceeds of a vessel is to be determined. In the above case NAIMUDDIN, J. (as his Lordship then was) while dealing with the question of priority held "that the priorities are, firstly, the decrees on account of wages, secondly, decrees on account of Master's wages and disbursement if any, thirdly, decrees on mortgages, fourthly, decrees for necessaries and repairs and lastly ordinary decrees.
11. Since in Suit A the decree prima facie is not for wages by a seaman or by his authorised agent on his behalf, the plaintiff cannot have priority over the plaintiff in Suit B, on the other hand the latter as the mortgagee of the vessel will have priority.
12. As regards the decrees in Suits C and D, it may be observed that a perusal of the two plaints of the two suits indicates that the claims related to supplies of necessaries etc. And, therefore, their decrees come after the decree of the plaintiff in Suit B in priority.