' This is a suit for recovery of Rs,1,01,822.09. Case of the plaintiff Company is that it had acted as the local Shipping Agent of Defendant No, 1, vessel `Panaghia Odigitria'. The vessel had reached Karachi in August, 1974. At the request of the Master of the vessel the plaintiff company supplied between 5-8-1974 and 15-10-1974 in respect of the ship, provisions and incurred other expenses classified as under:-
(1) Travelling expenses of the crew;
(2) Charges of the watchmen;
(3) Free medical expenses of the crew;
(4) Telex and cable charges;
(5) Advances to the Master of the ship;
(6) Custom light dues; and
(7) Port dues.
' The plaintiff received a sum of Rs,1,38,590.30 against the total amount of disbursement, while a balance of Rs,94,322.08 is still due. Apart from that the plaintiff is also entitled to Agency Fee of Rs,5,000. He made further disbursement of Rs,2,500 and was, therefore, entitled to a grand total of Rs,1,01,822.08. The Master of the vessel had promised to make payment before the ship sailed out of Karachi, but failed to do so. Defendant No, 2 is the previous owner, white Defendant No, 3 is the subsequent purchaser of the vessel i.e, Defendant No,
1. The vessel was ordered to be arrested and subsequently released on furnishing bank guarantee.
2. The suit was contested by Defendants Nos. 1 and 3. Defendant No, 2 is ex parte. Defendants' case in brief is that the vessel was previously owned by Pantocrator Compania Aseguratora Y Financieria SA.' Defendant No, 2 were acting as general brokers of the owner in U.K. And not the owners of the vessel. Defendant No, 3 purchased the said vessel free from all liens, charges etc. By opening L.C. On 19-8-1974 and the delivery of the vessel was given on 23-8-1974. Defendant No, 3 never appointed the plaintiff as their agent or of the vessel, nor authorised them to act on behalf of the vessel. From 23-8-1974 the vessel ceased to be a foreign flag vessel and was owned by Defendant No,
3. It was meant to be scrapped. From 23-8-1974 the Master and crew, who were on board, ceased to be the Master and crew of Defendant No, 1 and they were not employed by Defendant No,
3. It was also denied that the plaintiff incurred the expenses or supplied provisions shown above or that the same constituted necessities to the ship or were required for prosecuting the voyage. Legal pleas as to the non-maintainability of the suit and absence of jurisdiction were also taken.
3. On the pleadings of parties the following issues were framed:-
(1) Whether the suit is not maintainable under the Admiralty jurisdiction of this Hon'ble Court?
(2) Whether defendant No, 2 was at any time the owner of defendant No, 1?
(3) Whether Rs,94,000 and Rs,2,500 were spent and incurred by the plaintiffs towards necessities for the ship?
(4) Whether the plaintiffs were authorised to incur and spend the aforestated amounts by the defendants?
(5) Whether the plaintiffs are entitled to recover Rs,5000 towards agency charges? If so can a decree be passed for the said amount in these proceedings?
(6) Whether the defendant No, 3 have purchased the defendant No, 1? If so, can defendants Nos. 1 and 3 be held liable for the claim of the plaintiffs?
(7) What should the decree be?
4. The plaintiff examined its Manager Habibur Rehman, who has stated that he had made payments and supplied provisions as was indicated in the bills and vouchers, photostats of which he has produced as follows:-
(1) Eleven bills relating to telex charges as Exts. 5/1 to 5/11 for total amount of Rs,16,015.73.
(2) Ext. 5/12 dated 13-8-1974 for Port dues for Rs,999.01.
(3) Ext. 5/13, cash receipt for payment of custom light dues dated 6-8-1974 for Rs,739.50.
(4) Exts. 5/14 to 5/19. Payment receipts in respect of launch hire charges for Rs,16,465.
(5) Exts. 5/10 to 5/22. Medical Bills for Rs,402.
(6) Ext. 5/23, Travelling bill of plaintiff for Rs,1,414.
(7) Exts. 5/24 to 5/29, Receipts for payment of crew wages total Rs,9,680.
(8) Exts. 5/30 to 5/47, Receipts for hotel charges for stay of crew members for Ifs.?
(9) Exts. 5/48 to 5/55, Bills for supply of provisions by ship chaudlers signed by Master, Rs,10,117.04.
(10) Exts. 5/56 to 5/57 for survey charges of Rs,500.
(11) Exts. 5/58 to 5/62, Miscellaneous expenses vouchers, Rs,1,909.
(12) Ext. 5/63 charges for watchmen, Rs,2,000.
5. The defendants have examined Muhammad Aslam, partner of Defendant No, 3 and have produced the following documents:-
(1) Pro forma Invoice. Exh. 6/1.
(2) Import licence. Exh. 6/2.
(3) Letter of the Bank Exh. 6/3.
(4) Letter of Indemnification by previous owner. Exh. 6/4.
6. My findings on these issues for reasons therefor are as under: ' ISSUES NO, 1 to 7.
Since all these issues are inter connected, I propose to discuss all of them together. The burden to prove that the plaintiff incurred the expenses as detailed in the plaint and supplied the material shown therein was on the plaintiff himself, as the Defendants had denied the same. The original bills and vouchers have not been produced. Instead, the photo copies of bills and vouchers were produced. The Plaintiff's witness Habib-urRehman has alleged that the original documents were handed over to his Advocate Mr. KA. Ghani who produced only photostat copies thereof in the Court, whereas the originals were not produced. The plaintiff has neither alleged that these documents were lost by his Advocate, nor has he examined him or his clerk. He has also not claimed that these originals were produced in the Court and lost by any clerk. Thus it would appear that there is no satisfactory evidence of the loss of the originals. The Defendants had denied/challenged the photostat copies produced by the plaintiff. As such these photostat copies cannot be relied upon. Mr. Muhammad Nasim had objected to the production of these documents on the ground that no case had been made out for secondary evidence. The documents were admitted subject to objection, which was to be decided later on. I am of the clear view that the objection is well-founded and that the photostat copies of the receipts and vouchers are not admissible in the evidence. The person, who had signed these receipts and vouchers, has not been examined. P.W. Habib-ur-Rehman has admitted that he has not signed any one of these documents. These documents are alleged to have been signed either by the contractor or Director of the Company and neither of them has been examined. The witness has, no doubt, stated that these documents were signed by Dr. S.M. Khan Sarwaruddin, Nasiruddin and Fazal Miskeen in his presence and the payments were also made in his presence, but in the same breath he has admitted that he cannot identify their signatures. The evidence of Habib-ur-Rehman on the point has not impressed me, The persons, who had primary knowledge of the transaction, have not been produced. Instead a person has been produced, who claimed to identify the signatures and gave a general unimpressive statement about the payments. The plaintiff did not produce their account books to verify correctness of their claim in the suit. Only the Photostat copies have been produced which are inadmissible in evidence. There is no proof of the contents of the documents. I, therefore, hold that the plaintiff has failed to establish the payments made by him to the Defendants.
' The vessel was delivered to defendant No, 3, who were the local purchaser of the vessel, defendant No, 1 for scrapping. The document Exh. 5/64 with which the plaintiff's witness I labib-ur- Rehman was confronted by the defendant is a receipt dated 23-8-1974. The witness has not denied that it is signed by the Master of the ship. He has given evasive reply. First of all he says that he cannot say that it was signed by the Master of the ship or not. Then he says that he did not remember the signature of the Master of the ship. The Defendant's witness Muhammad Aslam has proved the receipt by his evidence on oath. Besides he has produced pro forma Invoice Exh. 6/1, Import licence Exh. 6/2, Letter for opening of L.C. Ex. 6/3 and Letter of Indemnification by the previous owner Exh. 6/4. From all this evidence, it is proved that the vessel, Defendant No,1 was transferred and delivered by the previous owner to Defendant No, 3 as early as 23-8-1974. This suit has been filed on 15-10-1974, which is subsequent to the date of the transfer and delivery of the ship by the previous owner to Defendant No,
3. After the vessel was delivered as shown above, the previous Master and the entire crew signed off. Defendant No, 3 engaged the services of new Master, namely Capt. Faddoo for moving the vessel to Gadani Ship Breaking Yard as stated by Muhammad Aslam in his affidavit. In admiralty, suit in rem is competent for recovery of claim for necessities and other disbursements made by the agents only so long as ownership of the vessel has not been changed. Since the ownership of this vessel had changed before the filing of the suit, it became property of new purchaser i.e, Defendant No, 3 free from all encumbrances and proceedings in rem for recovery of the dues, if any, against the previous owners were no longer competent, except where there was a Maritime lien available which was not the case in this suit.
Plaintiff's counsel has himself admitted that no claim for supply of necessaries which is not a Maritime lien can be enforced against a vessel if its ownership changes before the filing of the suit.
Reliance was placed by the Defendants' counsel on the case of Oriental Shipping Company Ltd. v.
M.V. Monte-Cristo (1984 CLC 2265). The suit in the ruling was incidentally filed by the same plaintiff, who were represented by the same Advocate in the High Court of Balochistan. It was dismissed and the following observation was made:- "Respectfully following this authority I hold that the present suit is not maintainable against the defendants Nos. 1 and 3. The ship has changed hands and now the defendant No, 3 has become the owner of the ship. There is no maritime lien against the ship. The plaintiff cannot claim any relief against the defendants Nos. 1 and 3."
The above ruling is identical and applies with full force to the facts of the case. The entire expenses detailed in the plaint relate to the transactions allegedly made by the plaintiff on account of previous owner only and not on account of defendant No,
3. Travelling expenses, medical expenses and hotel expenses claimed by the plaintiff subsequent to 23-8-1974 relate to the previous Master and the Crew of the vessel, who were signed off on 23-8-1974 and for whom Defendants had assumed no further liability. The hotel expenses of Rs,64,000 were incurred prior to repatriation of the crew for which the defendants cannot be held responsible. Hence the suit is not maintainable against Defendants Nos. 1 and 3. I, therefore, do not find any merits in this suit and dismiss the same with costs.