' This is a suit for recovery of Rs,64,639.20.
' The case of the plaintiff is, that he was engaged and appointed as Master of Vessel m.v. Al AIDA, the defendant No,1, through the Shipping Office, Karachi, in November, 1983. Defendant No,3 was joined pursuant to the order of this Court dated 12-10-1986. The basic monthly wages of the plaintiff were U.S. Dollar 1,800. The plaintiff was relieved from vessel at Sharjah (UAE) on 15-4-1984. The plaintiff demanded payment of his wages before being relieved, but the owner's representative offered only 15% of the wages and assured that the balance of the wages would be settled at Karachi. The plaintiff accepted the said offer for the time being as he had no option. On arrival at Karachi, the plaintiff approached the then agents M/s. Ameejee Valleejee & Sons for payment of the balance wages, and also the Shipping Master, Karachi, but without any result. An amount of Rs,64,639.20 is due to the plaintiff, but the defendants have not paid in spite of repeated demands.
Hence the suit.
3. An application for arrest of the ship was made, and it was ordered by this Court on 6-9-1985, that the vessel (defendant No,1) in question be released subject to furnishing bank guarantee of the amount Rs,67,049. Consequently, the defendant. No,1 furnished the bank guarantee. Defendant No,1 did not file any written; statement in spite of a number of adjournments obtained by him, hence he was debarred from filing the written-statement. On 23-4-1986, M/s. Afrah Shipping Company applied for being joined as defendant as it had purchased the said ship on 7th April, 1985, and then sold it to M/s. Muzaffar & Ahmed Company on 23-5-1985, who had scrapped the same. The application was granted by consent. Defendant No,3 filed a written statement in whiCh they have denied the plaintiff's case for want of knowledge. It alleged, that M/s. Al Moqad Shipping Co.
Limited, Dubai, were never owners of the vessel Al Aida. The said vessel was owned by M/s. Asma Enterprises since 1981 but sold the same to defendant No,3 on 7-4-1985. After purchase of the said vessel the defendant No,3 changed its registration from Dubai to Ajman. M/s. Afrah Shipping Company thereafter sold the said vessel to Muzaffar Ahmed and Company on 23-5-1985. At the time of institution of the suit, M/s. Afrah Shipping Company was still in possession of the said vessel and the same was delivered to M/s. Muzzaffar Ahmed & Company on or about 21-7-1985. Presently the said vessel has been scrapped. None of the aforesaid owners have ever appointed M/s. Ameejee Valleejee & Sons as shipping agents of the said vessel. M/s. Al-Qudsia Shipping Agency was never owner of the said vessel, at that time nor they were appointed agents of the said vessel by the aforesaid owners. The plaintiff was never employed by any of the aforesaid owners as Master of the defendant No,1. It was submitted, finally without prejudice that the plaintiff had never filed any claim with the shipping authorities at Dubai or at Ajman, under whose flag, vessel sailed and came to Karachi at the time of institution of this suit.
4. On the pleadings of the parties, the following issues Were framed.
(1) Whether plaintiff served on board the defendant No,1 vessel during the period for which wages are claimed?
(2) Whether the plaintiff is entitled to the wages claimed?
(3) Whether the plaintiff has maritime line on the defendant No,1 vessel for his unpaid wages?
(4) What should the decree he?"
REASONS AND FINDINGS: Issues Nos.1 and 2
1. These issues relate to the service of plaintiff on Board the defendant No,1 and its period. In para 1 of the plaint the plaintiff has stated that he was appointed as Master of the vessel defendant No,1 through the Shipping Officer Karachi in November, 1983. In written statement this para has been denied for want of knowledge. The plaintiff has examined himself as Ex.3 and has stated on oath that in November, 1983 he served the motor vessel called AL-AIDIA. The appointment letter was issued by the agent on the vessel namely Ameeji Waliji & Sons. He has produced the same in original as Ex.3/1. He has further stated that after receiving the said appointment letter he went alongwith the local agent of the shipping company to the Government Shipping Office and signed the articles of agreement in presence of the Shipping Master. He was given a copy thereof by the Shipping Master, which he has produced as Ex.3/2. He then went to Shafjah to join the vessel. He prepared a statement of account of wages for individuals as well as portage bill which includes all the staff wages. He has produced three copies of such bills marked as Exs.3/3 to 3/5. He has further stated that all these three copies bear his signatures. He left the vessel at Sharjah on 22-4-1984. He has produced copy of individual account wages of himself which was preparers in triplicate and one copy was sent to the agent of the vessel which is Ex.3/6. He has further stated that his monthly salary was settled at US Dollars 16,000 and his gross earning when he signed off was US. Dollars 8,079.90. He admits to have received half of this amount at Sharjah for which he had given a receipt. He has also produced the advance sheet as Ex.3/7 which includes his name. He has further stated that the local agent had given him an undertaking that he would get the balance of his wages at Karachi. When he came back to Karachi he contacted the agents but they did not give him the balance amount and kept him on hopes. He signed off the articles of agreement in the Shipping Office on 30-12-1984. The agents issued him a copy of the letter addressed to Shipping Master. He has produced the photo copy marked 'X'. He has stated that he had signed the articles of agreement under protest and made such a note thereon that balance wages were not paid. He has claimed an amount equivalent to U.S. Dollars 4,039.95. In his support the plaintiff had summoned Assistant Shipping Master Fazle Raheem Farooqui whose evidence is Ex.4. The Assistant Shipping Master has stated that in November, 1983 the Shipping Department received a request from M.V.AI Aida for employing the plaintiff by letter from its local agent for signing on the plaintiff which has been produced as Ex.4/1. This letter is purported to have been written by Raza Hussain on behalf of M/s. Ameeji & Waliji & Sons. The witness further goes on to state that the plaintiff had signed on the articles of agreement which he produced as Ex.4/1. The relevant entry is at pages 14/15. This agreement is exhibited and is also signed on behalf of M/sAmeeji Waliji & Sons by Raza Hussain Jaferi, the representative of M/s. Ameeji Waliji & Sons. The witness has further stated that the local agent had then sent letter on signing off which he has produced as Ex.4/3. This letter is also signed by Raza Hussain Jafri on behalf of M/s. Ameeji Waliji & Sons. He has further stated that since the original article of agreement was not brought he got a release form signed by him. He has produced the same as Ex.4/4. This document is also signed by Raza Hussain Jafri on behalf of M/s. Ameeji Waliji & Sons. There is a note that the plaintiff had signed ,this document under protest subject to the settlement of his earned wages as mentioned in his application. Below this note there is illegible signature purporting to be of "Karnai" for Ameeji Waliji & Sons. The next and the last witness of the plaintiff is Raza Hussain Jafri who claims to be the employee of M/s. Ameeji Waliji & Sons Shipping Company. His evidence is Ex.6. He has stated on oath that they have recruited crew for the suit vessel and that they had employed the plaintiff in this case for that purpose. He has stated that they had issued his appointment letter Ex.3/1 and says that it bears his signatures. He also says that after signing on the articles of agreement in the Shipping Office the plaintiff had gone with the ship up to Dubai. He has further stated that the articles of agreement Ex.4/2 also bears his signatures. He goes on to say that on 24-4-1984 the plaintiff reported back after leaving the ship. He signed off under protest on 30-12-1984. On this point the plaintiff has examined Raza Hussain Jafri who states that M/s. Amecji Waliji & Sons are the shipping agents. The above evidence proves that the plaintiff was appointed as Master and had actually served on defendant No,1 during the said period.
2. Mr. Farooq H. Naek, Advocate states that the plaintiff has not proved that he was appointed by the owner of the ship or by the person authorised by him. In para 1 of the plaint the plaintiff has stated that he was engaged as Master of the vessel through Shipping Office, Karachi in November, 1983 while in his evidence he has stated that his appointment letter was issued by agent of the vessel namely Ameeji & Waliji. In his cross-examination he has stated that it was not correct that M/s. A1-Qadissiah were not the owner of the vessel. He has asserted that they were not only the owners but also the local agents. He has denied that Ameeji & Waliji were never the agents of the vessel. He has asserted that they were agents. He has stated that he was not aware that in November, 1983 M/s. Afrah were owners of the vessel and that they continued to remain the owners up to 23-5-1985. Mr. Farooq H. Naek has further submitted that in para 4 of the plaint the plaintiff states that the owner's representative paid him at Sharjah 50% of the wages for the time being which he accepted under protest and assured to pay him the balance at Karachi. The plaintiff has not proved this fact or has he examined the owner's representative who had received his statement of account and signed and sealed the same. He further states that the plaintiff has not led any evidence to show that he flew from Karachi to Sharjah and took over the charge of the ship and then when he was discharged on 15-4-1984 he flew back from Sharjah to Karachi. The plaintiff has stated that he had filed claims which are Exs.3/2 to 3/7 but according to Mr. Farooq H. Naek these are not claims but mere accounts prepared by the plaintiff himself.
3. Mr. Shaiq Usmani states that Al-Muada Shipping Limited Dubai A.E. Were the owners of the vessel at the time when he had filed this suit and not at that time when the plaintiff was engaged or released from the ship and were paid 1/2 of his wages. Moreover, he had filed the suit against the ship itself hence it was immaterial who was its owner at the relevant time. Mr. Farooq has challenged the fact that M/s. Ameeji & Waliji Shipping Company were the local agents of the vessel at Karachi or of the then owners of the vessel between 1981 and 1985. He has referred to the cross- examination of P.W. Raza Hussain Jafri who claims to be in service with M/s. Ameeji & Waliji. He stated that the witness had never produced the telex by which Ameeji & Waliji were appointed as local agents nor has he produced any other document to show that M/s. Ameeji & Waliji were appointed as local agents by the owners of the vessel from 1981 to 1985. Mr. Farooq then referred to the statement of Fazal Rahim Farooqui Shipping Master Ex. 4 and has drawn my attention to the cross-examination of this witness in which he has stated as follows:-- "We do not have any documents concerning the ownership of the vessel in question. I do not have any document which could show that Ameeji Waliji & Sons were the local agents of the vessel at the relevant time. Ameeji Waliji would not have signed the letter of appointment and articles of agreement without being the local agents of the vessel. I do not know in fact whether Ameeji Waliji & Sons were really the local agents of the vessel or not."
' Mr. Farooq H. Naek then stated that the plaintiff was never appointed as Master of the ship nor had he ever worked on the ship nor was he paid 50% or any other part of his wages for working on the ship. The documents produced by him have been concocted by him subsequently with the assistance of Ameeji Waliji & Sons and those employed in the office of the Shipping Master. The arguments of Mr. Farooq are not convincing.
4. Mr. Usmani submitts and rightly so, that even if a crew is shown to have worked on a particular ship he becomes entitled to the wages irrespective of the fact that his appointment was made by a person who was not approved by the local agent of the ship. According to plaintiffs counsel the right to claim wages springs frdm the fact that a person is allowed to work in a particular capacity on the ship. Mr. Shaiq Usmani went on to submit that the entries in the Shipping Department carry with themselves a legal presumption about their correctness and that he has produced the necessary documents which show that the plaintiff was appointed as a Master on the Ship Al Aida and that he had actually worked on the ship which fact is evident from portage bill, Exs.3/3, 3/4 and 3/5.
' The genuineness of these documents is not denied, disputed or challenged by the defendant's counsel. The plaintiff had not given a clean letter of signing off to the defendant but had signed it under protest and had reserved his right to claim balance of his wages.
5. Mr. Farooq H. Naek has submitted that the documents Exs.6/1 and 6/2 produced by him through D.W. Pervez Haroon are the original cancellation of vessel's registration and deletion certificate are both foreign public documents and are by themselves sufficient to prove their authenticity under the provisions of Article 85 (1)(3), Qanoon-e-Shahadat, 1984. By these documents it is proved that from 1-9-1981 the ship was owned by Asma Enterprises Est. Up to 20-3-1985 and that it was registered in the name of Afrah Shipping Company on 16-4-1985 and was deleted from the name of Afrah Shipping Company on 26-5-1985 i,e, it remained in the name of Afrah Shipping Company only with effect from 16-4-1985 upto 26-5-1985 and that thereafter its originals certificate of registry was retained by the Department of Port and Customs of the Amart of Ajman for sale to United Bank Limited of Pakistan account of M/s. Muzafar Ahmed & Company. Since the plaintiff has not worked on the ship and has therefore not earned wages, hence he cannot file this suit.
6. In reply Mr. Shaiq Usmani has rightly submitted that defendant No,3 was required to prove that he had purchased the ship. He has not proved that fact. Section 24 of the Merchant Shipping Act, 1894 reads as under:- "24. A ship or share therein (when disposed of to a person qualified to own a British ship) is transferred by bill of sale which must be in statutory form in first schedule to Act, executed by the transferor in presence of a witness."
The evidence of D.W.1 Pervez Haroon is a full of contradictions and does not help the defendant at all and on the contrary is inconsistent with the case set up by the defendant No,3 in his written statement. Defendant No,3 has not examined the person who according to them was the Master of the ship to say that he and not the plaintiff was the Master of the ship. The statement of account had to be signed by the plaintiff himself as he was the Master of the ship and by nobody else. The plaintiff has examined himself and proved the statement of account. He had handed over those statements of accounts to the agent of the owners and the same are signed and sealed by such agent. This is all the plaintiff was required to do under the law to prove these statements of accounts. Hence findings in the affirmative.
ISSUE No,3
1. Clause (n) of subsection (2) of section 3 of the Admiralty jurisdiction of High Court Ordinance 1980 provides that this Court shall have jurisdiction to hear and determine any claim made by a Master of ship for wages. Subsection (3) of section 4 provides that in any case in which there is a maritime lien on any ship of the amount claimed the admiralty jurisdiction of this Court may be invoked by an action in rem against that ship. Maritime lien is not defined or explained anywhere in this Ordinance and therefore we will have to fall back upon case law. In this connection reference may be usefully made to PLD 1985 Quetta 278 Azhar Ahmed Khan v. m.v. Azhar. Ajmal Mian Chief Justice of that Court (as he then was) has defined maritime lien in this ruling. The relevant passage reads as under:-- "It was vehemently urged by Mr. Abdul Rauf, learned counsel for the defendants that since the Ordinance has repealed and replaced the Admiralty law prevalent prior to the enforcement of it, resort can only be made to the provisions of the Ordinance. It was further urged by him that the Ordinance does not preserve the right of maritime lien and, therefore, the same cannot be pressed into service. In my view, the above contention is devoid of any force. The maritime lien is a well- recognized right. It is too late to urge that in Pakistan this right has been done away because of the enforcement of the Ordinance. In this regard, reference may be made to para. 1204 of Halsbued's Laws of England Third Edition, Volume 35, at page 782, which reads as follows:-- "1204. Maritime liens recognized by English Law.-- The maritime liens recognized by English Law are those in respect of bottomed and respondent bonds, salvage of property seamen's wages and damages."
2. The question of the continuance of maritime lien on the ship irrespective of the change of the ownership had also arisen in the case in that ruling and it was answered as under:-- "The question of the personal liability of a reds owner assumes a significance only in relation to the accrual of a maritime lien. It has no further application and, in particular, does not operate to restrict the right of a maritime lienee to arrest a reds in the hands of a purchaser. In such a case there clearly exists no personal liability on the part of the subsequent purchaser but this fact does not dissolve the right of a maritime Hence.
18. I am, therefore, inclined to hold that subsection (4) of section 4 of the Ordinance is not applicable to the instant case and the above suits are competent even against the defendant No,4, the purchaser of the vessel, as the maritime lien was attached to the vessel and certain portion whereof, admittedly was in existence at the time when the above suits were filed."
3. The English law on the subject is borne out from the decision of P.C. In the case of The Fairport reported in 5 Aspinnel Maritime Law Cases page 62 where it has been held as under:-- "It results from these cases that maritime lien is not indelible, and may be lost by negligence or delay where the rights of third parties may be compromised, hut, where reasonable diligence is used and the proceedings are had in good faith, the lien travels with the thing into whatsoever possession it may come. What constitutes reasonable dilligence must depend upon the particular circumstances of each case."
4. Subsection (1) of section 65 of the Merchant Shipping Act 1923 makes it quite clear that the master of a ship shall have the same rights, liens and remedies for the recovery of his wages as a seaman has under this Act or by any law or custom.
5. In Halsbury's Laws of England III Edition Volume 35 at page 785 it reads as under:--- "1208. Wages. The lien for the wages of the Master and seamen attaches to the ship and freight and every part thereof provided the wages have been earned on board the ship under the ordinary mariner's contract. It does not affect the right to the lien that the Master and crew were engaged by some person who had no right to engage them, so long as they have eared the wages on the ship. This lien is not dependent on the earning of freight, but it does not attach to the ship it cannot attach to the freight, for a lien on freight is consequential to the lien on the ship. The lien for wages travels with the res into whose ever's possession it may come."
6. In the case of The Edwin reported in English Reports Volume 167 page 365/367 it was observed by the Judge Dr. Lushington as follows:-- "That a Master, himself innocent of fraud, but appointed by one in fraudulent possession, can earn no wages, cannot lawfully hire seamen, nor execute a bottomed bond, nor do any other act necessary for the navigation of the vessel, is a proposition for which no authority has been cited; and independent of all authority, it appears to me an unreasonable and unjust proposition and when the argument is pressed; as it has been, to a similar extent with regard to seamen, it almost amounts to an absurdity. It has been the immemorial custom of the Court of Admiralty to look to the service done as the ground of the claim against the ship, and by statute the Master has now the same rights, liens and remedies for the recovery of his wages, which by the Merchant Shipping Act, or by any law or customs, the seaman, not being a Master, has for the recovery of his wages. I think therefore that, independent of contract, the plaintiff acquired a lien upon the ship by the performance of the services.
' This case is distinguishable from the case of stolen goods, in which the purchaser cannot acquire property except by purchase in market overt. It more resembles the case of the lien of an innkeeper for the keep of a horse left in his stable, though the horse may have been stolen. There is, at any rate, a wide distinction between acquiring a maritime lien and obtaining a title to the property."
7. Mr. Farooq has attempted to distinguish the case of the Edwin referred to above by the plaintiff's counsel by stating that in that case the plaintiff had proved that he had worked on the ship and had earned the wages while in the present case the plaintiff has not proved that he had worked on the ship or became entitled to the wages, but his contention has no force in view of findings on issues Nos. 1 and 2.
8. PLD 1985 Quetta page 278 case of m. v. Ashar further shows that a Master is also entitled to wages which he had earned under the same owner though not on board. It was held in the Eros State case by Burmooda Supreme Court that claim for wages earned for the period of vacation and sail and when necessarily the claimants were away from the ship were within the jurisdiction of the Court. The distinction between wages earned on board and wages earned otherwise on board is not relevant for the purpose of this case because the defendants have not taken the defence that the plaintiff had worked for the ship but not on board the ship.
' Under these circumstances I decree plaintiffs suit against defendants Nos.1 and 2 with costs for a sum of Rs, 64,639.20 and direct M/s. Habib Bank Limited, who had furnished bank guarantee, to deposit the said amount in cash with the Nazir of the Court. I further allow interest to the plaintiff at the rate of 10% per annum from the date of the filing of the suit till the recovery of the decretal amount. 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.