' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 23-10- 1989 passed by a Division Bench of the High Court of Balochistan in Admiralty Appeal No,2 of 1988, filed by the appellants against the judgment/decree dated 13-3-1988 passed by a learned Single Judge of the aforesaid High Court in Admiralty Suit No,1 of 1987, dismissing the same and maintaining the above judgment/decree of the learned Single Judge, whereby the appellants'
Admiralty Suit for the recovery of $ 25,751-36 equivalent to Rs,4,50,640 was dismissed. Leave to appeal was granted to consider the following questions:--
(a) If necessaries are supplied to a vessel in a foreign port the law of place where the supplies are made or necessaries furnished will determine as to whether such supplies give rise to a maritime lien or not inasmuch under the principles of private international law the law of place where the transaction took place will determine the substantive nature of the transaction?
(b) Whether in view of section 38 of the Evidence Act (Article 52 of the Qanun-e-Shahadat) it is necessary to prove foreign law as a point of fact or is it sufficient to prove the same by production of the book published and printed under the authority of the Government of the country?
(c) Whether a maritime lien created against a vessel in a foreign port on account of supply of necessaries according to the lex loci could be enforced against the same vessel in Pakistan under the Admiralty Jurisdiction of High Courts Ordinance, 1980, after the ownership of the verse: had changed?
2. The brief facts are that the appellants filed aforesaid suit for the recovery of the aforementioned amount on the basis of averment that they were carrying on business of making supplies to Steamers at Port Houston, Taxas in U.SA. It was further averred that while respondent No,1, a cargo vessel, was anchored at the aforesaid port on 26-9-1985, the appellants supplied to her the necessaries including provisions and articles/parts and tools which were to be used in her engine, deck and cabin valuing to $ 19,199.90 equivalent to Rs,3,36,000. It was also averred that the above articles supplied by the appellants were duly received, acknowledged and accepted by the persons incharge of the vessel. It was further averred that the amount due on this supply was to be paid within ten days of the delivery and in case of failure, the appellants were entitled to interest at the rate of $ 2 per cent. Per month. It was also averred that at the time when the supplies were made, respondent No,1 was owned by respondent No,2, who sold the same to respondent No3 as per delivery certificate dated 19-11-1986, who in turn sold it to respondents Nos.4 and 5. It was asserted that the latter brought the vessel to Pakistan and beached at Plot No,94 at Gadani Beach under care and control of respondent No,5, who was hastening to break/scrap in order to destroy the res thereof. On the basis of the above averments, the aforesaid suit for the recovery of the above amount, the break-up of which was $ 19,199.90 being the price of the supplies and $ 6,551.46, being the amount of interest uptodate, was filed.
3. The above suit was resisted by respondents Nos. 1, 3 and 4, inasmuch as separate written statements were filed. Respondent No,1 inter alia denied the receipt of the supplies. It was denied that the appellants' claim was a charge on respondent No,1. It was averred that the appellants' claim, if any, did not exist against respondent No,1 or could not be claimed against it even if it was to be assumed that a claim existed as respondent No,1 had changed hands and the ownership thereof did not vest in the previous owners. The other averments were also denied.
' Respondent No,3 in their written statement besides raising preliminary objections as to the maintainability of the suit, denied that respondent No,l was sold/transferred to respondent No,3 by respondent No,2. It was further denied that respondent No,3 sold the vessel to respondents Nos.4 and 5. It was averred that respondent No,4 merely acted as a representative of respondent No,3 at Karachi for the purpose of handing over delivery of respondent No,1 to its purchasers M/s. Pacific Enterprises, to whom the vessel had been sold by respondent No,3.
' Respondent No,4 in their written statement, in addition to raising of the preliminary objections as to the maintainability of the suit, had averred that they merely acted as the representative of respondent No,3 at Karachi for handing over delivery of respondent No,1 to its purchasers M/s. Pacific Enterprises.
4. On the basis of pleadings of the parties, the following issues were framed:--
(i) Whether necessary supplies to the vessel created a maritime lien in favour of the plaintiff warranting enforcement of the same under Admiralty Jurisdiction of High Courts Ordinance, 1980?
(ii) That if the answer of the first question is in the affirmative, whether the said maritime lien can be enforced against the vessel in spite of the fact that the same has changed hands twice before it has been sued?
(iii) Whether factually the plaintiff had supplied the necessaries including provisions and articles/parts, tools which were to be allegedly used in her Engine, Deck and Cabin valuing to $ 19,199.90 equivalent to Rs,3,36,000?
(iv) Whether the plaintiff is entitled to any relief or reliefs?
(v) Whether the defendants are entitled to compensatory cost or any cost?
5. The learned Single Judge, after recording evidence and hearing the learned counsel for the parties, recorded his finding through the aforesaid judgment dated 13-3-1988 on above Issue No,1 in the negative, whereas on Issue No,2, it was concluded that since the finding on above Issue No,1 was recorded in the negative, no finding was required on above Issue No,2. As regards Issue No,3, it was held that the same was not proved, whereas under Issue No,4, it was concluded that the appellants were not entitled to any relief, and under Issue No,5, it was held that respondents Nos.3 to 5 were not entitled to compensatory costs. The learned Single Judge, while recording the above finding in the negative under Issue No,1, held that the appellants failed to prove that sections 971 and 972 of the American Code were applicable to the Port of Houston in America. Against the above judgment/decree, the appellants filed aforementioned Admiralty Appeal, which was dismissed by a Division Bench of the High Court of Balochistan. While dismissing the above appeal, the learned Judges of the Division Bench, held that the appellants were required to plead and prove the foreign law, which they failed to do. It was also held that the appellants had not based their claim on the foreign law as was evident by bare perusal of the plaint, but founded their claim under clauses (e), (1) and (m) of subsection (2) of section 3 of the Admiralty Jurisdiction of High Courts Ordinance, 1980 (Ordinance No,XLII of 1980), hereinafter referred to as the Ordinance.
Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above questions.
6. In support of the above appeal, Mr. Akbar H. Mirza, learned A.S.C. Appearing for the appellants, has urged that both the Courts in spite of having found that factually the appellants made supplies of the above items to respondent No,1, dismissed the suit on technical grounds. It was further urged by him that the appellants were not required to plead law in the plaint. He also submitted that since the evidence was led on the question of foreign law, technical defect of not pleading the foreign law in the plaint, could have been overlooked or, in any case, the necessary amendment could have been granted.
' On the other hand, Mr. Tariq Hussain, learned A.S.C. Appearing for respondents Nos.1, 4 and 5, has contended that if a plaintiff wants to rely upon any foreign law, he is required to plead the same in the plaint as a question of fact and in the absence of any such pleading, he cannot lead any evidence on the same or rely upon the same. He also urged that the question, whether the supplies in question created a maritime lien, is to be determined with reference to the law applicable in the country where an acton is initiated i,e, by lex fori and not by the law where the supplies were made and the contract was concluded i,e, lex loci and as under the provisions of the Ordinance no maritime lien is created in respect of the supplies in question, the appellants' suit against respondent No,1 was incompetent. He has also submitted that, in any case, since the respondent No,1 had changed hands, no action could have been maintained under the provisions of section 4 of the Ordinance.
7. It may be observed that there seems to be consensus of view that question, whether a particular foreign law is applicable in a particular foreign e country, is a question of fact. According to Mr. Akbar H. Mirza, it is not necessary to plead the same expressly in the plaint, whereas Mr. Tariq Hussain's submission was that since it is a material question of fact, it is to be expressly pleaded.
Mr. Akbar Mirza has relied upon the case of A.T.S. Deivanayagam Pillai v. Muthukumarasawmy Pillai (14 IC 560) and the case of Pakistan Insurance Corporation v. British India Steam Navigation Co. Ltd.
And another PLD 1974 Karachi 171. In the former case, a Division Bench of the Madras High Court for the purpose of deciding the question, whether the defendant stood discharged on account of issuance of an insolvency certificate under the Ceylon Insolvency Ordinance by the District Judge of Colombo, referred to the provisions of the Ceylon Insolvency Ordinance, whereas in the latter case, a learned Single Judge of the erstwhile High Court of Sindh and Balochistan, while dealing with a suit in respect of short landing of the goods imported from Germany, referred to German Law on the basis of a Clause in the Bill of Lading.
' On the other hand, Mr. Tariq Hussain has referred to the following passages from the Construction of Statutes by R.T. Crawford and Cheshire on Private International Law, 11th Edition:-- ' Extract from the Construction of Statutes by R.T. Crawford pages 230-231 and (sic): "Foreign laws must be pleaded like any other issuable fact. Nor does the existence of a statute requiring the Court to take judicial note of the pleaded laws of a sister state dispense with the necessity of pleading such foreign statutes... ......... .........
150. Pleading of Construction.--As we will see hereafter, the construction of a statute becomes a part of the statute to the same extent as if originally incorporated in it. Consequently, unless provided otherwise by statute, reliance on a foreign statute as the basis of a cause of action or defence, requires not only a proper pleading of the statute, but also a sufficient pleading of its construction by the Courts of the state of its enactment. It is sufficient, however, to set forth the holdings of the foreign Court, without referring to the titles of the cases, or stating the facts upon which the decisions were founded. And, obviously, the decision of a Court of last resort should always be pleaded rather than that of an intermediate Court ........................
156. Respective spheres of the Court and Jury in regard to Foreign Laws.--We have already seen that foreign statutes must be pleaded and proved like any other issuable fact."
' Extract from the Cheshire on Private International Law, 11th Edition, pp.106-107: "The established rule is that knowlede of foreign law, even of the law obtaining in some other part of the Commonwealth is not to be imputed to an English Judge. Unless the foreign law with which a case may be connected is pleaded by the party relying thereon, then it is assumed that it is the same as English Law. The onus of proving that it is different, and of proving what it is, lies upon the party who pleads the difference. If there is no such plea, or if the difference is not satisfactorily proved, the Court must give a decision according to English law, even though the case may be connected solely with some foreign country. Foreign law is, therefore, treated as a question of fact but it is 'a question of fact on a peculiar kind.' To describe it as one of fact is no doubt apposite, in the sense that the applicable law must be ascertained according to the evidence of witnesses, yet there can be no doubt that what is involved is at bottom a question of law. This has been recognized by the Courts. The rule, for instance, in a purely domestic case is that an appellate Court will disturb a finding of fact by the trial Judge only with the greatest reluctance, but this is not so when the 'fact' that has been found in the Court below is the relevant rule of a foreign legal system. In such a case the role of the appellate Court has been described as follows:-- ' I think it is our duty ... ... To examine the evidence of foreign law which was before the justices and to decide for ourselves whether that evidence justifies the conclusion to which they came."
8. The counsel for the parties have also referred to the case of Aziz Banu v. Muhammad Ibrahim Hussain AIR 1925 Allahabad 720 and the case of Khoday Gangadara Shah v. A. Saminadha Mudali and others AIR 1926 Madras 218. In the above first case, a Division Bench of the Allahabad High Court, while deciding the question which Personal Law was applicable in a case in which the wife was a Shia woman and the husband was a Sunni, observed as follows:-- "Mr. Agha Haider has also tried to rely on the opinion of Maulvi Nasiri Sahib who apparently was examined in this case as an expert witness. In my opinion his evidence does not come within section 40 of the Indian Evidence Act and is inadmissible. The Shiah Law on marriage is the law of the land and is in force in British India. It can by no means be called foreign law; nor such law is a science or art within the meaning of that section. It is the duty of Courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witnesses howsoever learned they may be. It would be dangerous to delegate their duty to witnesses produced by either party.
Foreign law, on the other hand, is a question of fact with which Courts in British India are not supposed to be conversant. Opinions of experts on foreign law are, therefore, allowed to be admitted."
' Whereas in the second case, a learned Single Judge of the Madras High Court, while dealing with the question as to the law relating to contract/partnership applicable in Mysore State which was a Foreign State, observed as follows:- "As regards the first question whether under the law of the Mysore State the suit contract of partnership was illegal and void, it must be observed, to begin with, that the question 'What a foreign law is on a partialar point' is a question of fact and has to be proved by the parties setting it up. No evidence has been adduced before me as to what the law of contracts is with regard to the illegality and unenforceability of contracts which are entered into in violation of rules of law or against public policy. I have reason to believe that the law of contracts in that State is the same as the Indian Contract Act. But this was, however, bound to be established and not be left merely to inference. The 1st defendant on whom the burden of proof lay to establish satisfactorily all matters necessary for enabling the Court to come to the conclusion regarding the illegality of the contract did not give any evidence with regard to it."
9. It may be pertinent at this juncture to refer to Rule 2 of Order VI and Clause (e) of Rule 1 of Order VII of C.P.C. The former inter alia provides that every pleading shall contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, whereas the latter provision of the C.P.C. Lays down that the plaint shall contain the facts constituting the cause of action and when it arose.
10. Since the question, whether a particular foreign law in a particular foreign country is a question of fact, in our view, it is to be pleaded expressly as a material question of fact and as the fact constituting cause of action in terms of the above provisions of the C.P.C. In the absence of any such pleading, it will be open to the Court not to allow a party to lead evidence on the above question and if the evidence on such question is produced, the Court may decline to look into the same as has been held in the case of Messers Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala and others 1968 SCMR 804, the case of Government of West Pakistan (now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 and the case of Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi PLD 1971 Karachi 505 relied upon by Mr.Tariq Hussain.
11. However, it may also be observed that the Court has the power to allow amendment of the pleadings at any stage of the proceedings provided it does not change the complexion of the case and does not cause prejudice to the other party to the proceedings. In the present case, no request for the amendment was made either before the learned Single Judge or before the learned Judges of the Division Bench, though the learned counsel for the contesting respondents objected to the portion of the examination-in-chief of the witness through which the appellants purported to bring on record the foreign law in question on the ground that the same was not pleaded. However, MrAkbar Mirza has referred to the case of Budho and others v. Ghulam Shah PLD 1963 SC 553, in which Kaikaus, J. Held that "when a person makes a statement of a fact in the plaint he is entitled to rely upon that fact in support of the relief which he claims and it is not necessary for him to say in the plaint in so many words that he relies upon it. According to rule 2, Order VI, Civil Procedure Code, 1908, it is not necessary for a plaintiff to state in the pleadings the legal effects which flow from the facts that he alleges. He is bound to state the facts and is confined to a statement of facts".
12. The above observations of Kaikaus, J. Do not advance the case of the appellants as from the perusal of the plaint, it is evident that the foreign law was not pleaded as a question of fact. If it would have been so pleaded, it would not have been necessary for the appellants to have stated that they were claiming relief on the same. We are not inclined to allow amendment of the plaint at this stage in the absence of any application.
13. There seems to be controversy between the parties as to the mode of proof of a foreign law. In this regard, reference may be made to section 38 of the late Evidence Act and the corresponding provisions contained in Article 52 of the Qanun-e-Shahadat. It will suffice to reproduce the latter, which reads as follows:-- "52. Relevancy of statements as to any law contained in law books.-- When the Court has to form an opinion as to a law of any country any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant."
A plain reading of the above Article indicates that a foreign law can be proved by producing a book purporting to be printed or published under the authority of the Government of the country concerned containing a statement of the relevant law. It may also be observed that under Article 59 of the Qanun-e-Shahadat, an expert opinion on a foreign law is a relevant fact and, therefore, an expert can also be examined. It may further be mentioned that in England as is indicated from the above-quoted para. From Cheshire on Private International Law, the foreign law is to be proved through expert evidence.
14. In the present case, the appellants had produced a book under the caption "United States Code, 1982 Edition" published by the Government Printing Office, United States, photostat copy of the relevant portion of which was brought on record. Section 971 contained therein, reads as follows:-- "971. Persons entitled to lien.--Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may We enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel."
' A perusal of the above-quoted section indicates that a maritime lien is created in respect of claim for necessary supplies and repairs etc. Under the above provision. However, the question remains, whether the above section was applicable to the Port of Houston where the supplies were made, as there may be different law relating to maritime lien in different States of U.S.A. As is evident from the judgment in the case of The Milford (166 English Reports 1167), wherein the following observations have been made:- "The main question is, whether the Court ought to apply the lex loci contractus or the lex fori; and if the latter, whether the law of maritime, as administered previous to the changes made therein by statute law, or the law as it now stands under the Merchants Shipping Act. It is impossible not to be struck with the inconvenience which might ensue if the Court is to be governed by the lex loci contractus; in every case in which a foreign seaman or master is sued, the Court would have to enquire into the contract and into the law of the country under which it was made; and the difficulties with respect to the United States of America is very great, for, though the decisions of their Supreme Court may, generally speaking, be binding, yet the laws of their different states vary in their application of maritime law as well as in their municipal regulations;"
15. Before proceeding any further, it may be pertinent to observe that the remedy by way of arrest of a vessel etc. Was available even in medieval times for certain claims but the expression "Maritime Lien" was probably coined in English Law by Sir Jevis while rendering the judgment of the Privy Council in the case of The Bold Buccleuh ((1851) 7, 700 PC 267). There is no universl definition of the above term. The jurists of eminence have differently defined it. Lord Alkin L. J in the case of Tervaet ((1922) 259 CA) defined it as follows: ' of the right by legal proceedings in an appropriate form to have the ship seized by the officers of the Court and made available by sale if not released on bail."
' It may be stated that the proceedings so initiated are called action in rem against res. The word "res" in the legal parlance in context of an admiralty action connotes a limited number of things such as ships and their cargoes and freights.
' We may mention that it has been consistently held by the British Courts that the question, whether a party is entitled to claim a particular remedy, is to be determined with reference to lex fori. In this regard, reference may be made to the following cases:--
(i) De La Vega v. Vianna 109 English Reports 792.
(ii) The Tagus 1903 Probate Division 44.
(iii) The Acrux 1965 Lloyd's List Law Reports 565.
(iv) Bankers Trust International Ltd. v. Todd Shipyards Corporation 1981 AC 221.
' It will suffice to refer to the facts of the above last-referred case and the relevant observations made therein in the majority judgment. The facts were that a British ship, namely, Halcyon Isle was mortgaged to M/s. Bankers Trust International Limited, Singapore, on 27-4-1973. It seems that an American Ship Repairer carried out repairs to the ship in New York in March, 1974. Under the United States Law, they were entitled to maritime lien for the price of the repairs. The ship sailed from New York and reached Singapore. In August, 1974 both the ship repairers and the mortgagees initiated admiralty action in rem against the ship in the High Court of Singapore. In September, 1974, the ship was arrested in Singapore in the mortgagees' action and thereafter in March, 1975, it was sold by order of the Court. The sale proceeds were not sufficient to satisfy all the claims made by the owner's creditors. The ship repairers applied to the High Court for a declaration that they were entitled to a maritime lien for the price of the repairs, whereas the mortgagees applied. For a determination of the priority of payment from theroceeds of the sale. The High Court decided that the ship repairers were not entitled to a maritime lien and that mortgagees' claim was entitled to priority over the aforesaid ship repairers. Upon an appeal filed by the ship repairers, the Court of Appeal reversed the above decision. After that, the matter came up before the Privy Council, which set aside the judgment of the Court of Appeal and restored the original judgment of the High Court by majority view. While rendering the majority judgment,' Lord Diplock made the following observations:-- "But any question as to who is entitled to bring a particular kind of proceeding in an English Court, like questions of priorities in distribution of a fund, is a question of jurisdiction. It too under English rules of conflict of laws falls to be decided by English law as the les fori.
' Their Lordships therefore conclude that, in principle, the question as to the right to proceed in rem against a ship as well as priorities in the distribution between competing claimants of the proceeds of her sale in an action in rem in the High Court of Singapore falls to be determined by the lex fori, as if the events that gave rise to the claim had occurred in Singapore. ............ ............ .......... ... The Millford (1858) Swa. 362; The Tagus 1903 P.4 The Zigurds (1932) P.113 and The Acrux (1965) P.39 are supporting authorities spanning a century, in which the Court has applied English rules as to, the existence and extent of maritime liens and not the differing rules which would have been applicable under the lex caysae..................... The reasoning of all three judgments is consistent only with the characterisation of a maritime lien in English law as involving rights that are procedural or remedial only, and accordingly the question whether a particular class of claim gives rise to a maritime lien or not as being one to be determined by English law as the lex fori. Their Lordships, with great respect, consider that in The Loannis Daskalelis (1974) 1 Lloyd's Rep. 174 the judgments in The Colarado (1923) P.102 were misunderstood by the Supreme Court.... .... ........
' In their Lordships' view the English authorities upon close examination support the principle that, in the application of English rules of conflict laws, maritime claims are classified as giving rise to maritimes liens which are enforceable in actions in rem in English Courts where and only where the events on which the claim is founded would have given rise to a maritime lien in English law, if those events had occurred within the territorial jurisdiction of the English Court."
' However, Mr. Akbar Mirza has relied upon the minority view of Lord Salmon and Lord Scarman, the relevant portion of which reads as follows:-- "In England, the lex fori decides the priority of the rights which exist against a ship, e.g. The rights conferred by a maritime lien taking precedence over the rights of a mortgagee. The question is -- does English law, in circumstances such as these, recognise the maritime lien created by the law of the United States of America, i,e, the lex loci contractus where no such lien exists by its own internal law? In our view the balance of authorities, the comity of nations, private international law and natural justice all answer this question in the affirmative. If this be correct then English law (the lex fori) gives the maritime lien created by the lex loci contractus precedence over the mortgagees' mortgage. If it were otherwise, injustice would prevail. The ship-repairers would be deprived of their maritime lien, valid as it appeared to be throughout the world, and without which they would obviously never have allowed the ship to sail away without paying a dollar for the important repairs upon which the ship-repairers had spent a great deal of time and money and from which the mortgagees obtained substantial advantages."
16. The above majority view seems to be more in consonance with the provisions of the Ordinance in force in Pakistan. In this regard, reference may K be made to sections 3 and 4 of the Ordinance, which read as follows:-- "3. Admiralty jurisdiction of the High Court.--(1) The Sindh High Court and the High Court of Balochistan shall have and exercise, within their respective territorial jurisdiction, Admiralty jurisdiction as is in this Ordinance, provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined.
(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--
(a) any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificate as may be necessary for the operation or navigations of the ship;
(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage done by a ship;
(e) any claim for damage received by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults, the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods, on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship;
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
(i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a port, including any claim arising by virture of the application by or under section 12 of the Civil Aviation Ordinance, 1960 (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo;
(j) any claim in the nature of towage in respect of a ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port;
(k) any claim in the nature of pilotage in respect of a ship or an aircraft; (1) any claim in respect of necessaries supplied to a ship;
(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;
(n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchants Shipping Acts, or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be recovered;
(o) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
(p) any claim arising out of an act which is or is claimed to be a general average act;
(q) any claim arising out of bottom or respondent;
(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise, or for the restoration of a ship or any such goods after seizure, or for droids of Admiralty; together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchants Shipping Act, 1923 (XXI of 1923), any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.
' The jurisdiction of the High Court under clause (b) of subsection (2) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the Court thinks fit.
(4) The reference in clause (i) of subsection (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a, ship or an aircraft or in preserving cargo, apparel or wreck as under any law for the time being in force, are authorised to be made in connection with a ship or an aircraft.
(5) The preceding provisions of this section apply--
(a) in relation to all ships or aircraft, whether Pakistani or not and whether registered or not and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wheresoever arising including; in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land; and
(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charges created under foreign law: ' Provided that nothing in this subsection shall be construed as extending to cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts or the Merchants Shipping Act, 1923 (XXI of 1923).
4. Mode of exercise of Admiralty jurisdiction.--(1) Subject to the provisions of section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam.
(2) The Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (4),
(i) and (r) of subsection (2) of section 3 be invoked by an action in rem against the ship or property in question.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in clauses (e) to (h) and (j) to (q) of subsection
(2) of section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of the ship, the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against--
(a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person; or
(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.
(5) In the case of a claim in the nature of towage or pilotage in respect of an aircraft, the Admiralty jurisdiction of the High Court may be invoked by an action in rem against that aircraft if at the time when the action is brought it is beneficially owned by the person who would be liable on the claim in an action in personam.
(6) In the case of claim in the nature of a maritime lien, other than a claim on a bottom or respondent bond or to the possession of the ship, the Admiralty jurisdiction of the High Court may be invoked by an action in personam against the owners of the property which would have been arrested if the proceedings had been in rem.
(7) Notwithstanding anything in the preceding provision of this section, the Admiralty jurisdiction of the High Court shall not be invoked by an action in rem in the case of any such claim as is mentioned in paragraph (n) of subsection (2) of section 3 unless the claim relates wholly or partly to wages, including any sum allotted out of wages or adjudged by a competent authority under the relevant law to be due by way of wages.
(8) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, aircarft or other property to be sold, the Court shall have jurisdiction to hear and determine any question arising as to the title to, or priorities of claims in, proceeds of sale.
(9) In determining for the purposes of subsections (4) and (5) whether a person would be liable on a claim in an action in personam it shall be assumed that he has his ordinary residence or a place of business within Pakistan."
17. A perusal of the above-quoted section 3 indicates that subsection (1) thereof gives the names of the High Courts which will have Admiralty jurisdiction within their respective territorial jurisdiction. It may further be noticed that subsection (2) enumerates the causes, questions or claims in respect of which the High Courts referred to in subsection (1) shall exercise Admiralty jurisdiction.
' It may also be pointed out that proviso to subsection (2) further describes the jurisdiction of the above High Courts by providing that together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchants Shipping Act, 1923 (XXI of 1923), any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of the Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircarfts in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from the above section. It may further be pointed out that subsections (3) to (5) further explain the Admiralty jurisdiction of the High Courts.
' It may be observed that section 4 deals with the mode of exercise of Admiralty jurisdiction.
Subsection (1) thereof provides that subject to the provisions of section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam, whereas subsection (2) of it lays down that the Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d), (i) and (r) of subsection (2) of section 3 be invoked in rem against the ship or property in question. It may further be stated that subsection (3) of above section 4 provides that, in any case, in which there is maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court can be pressed into service by action in rem against the ship, aircarft or property.
' It may also he noted that subsection (4) of section 4 lays down that in case of the claim covered by clauses (e) to (h) and (j) to (q) of subsection (2) of section 3 being a claim arising in connection with a ship where the person who would be liable on the claim in action in personam was, when the cause of action arose, the owner or charterer of, or in possession or control of the ship, the Admiralty jurisdiction of the High Court may, where the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against--
(a) that ship if at the time when the action is brought, it is beneficially owned as respects majority shares therein by that person; or
(h) any other ship which at the time when the action is brought, is beneficially owned as aforesaid.
' It may also be observed that subsection (5) of section 4 provides filing of an action in rem in the case of a claim in the nature of towage or pilotage in respect of an aircraft provided the same is owned when the action is brought by the person who would be liable on the claim in an action in personam.
' It may further he noticed that subsection (6) of section 4 provides that' in the case of a claim in the nature of a maritime lien other than a claim on a bottomry or respondentia bond or to the possession of the ship, the Admiralty jurisdiction of the High Court may be invoked by an action in personam against the owner of the property which would have been arrested if the proceedings had been in rem.
' It may also be pointed out that subsection (7) provides that notwithstanding anything contained in the preceding provision of the above section, the Admiralty jurisdiction of the High Court shall not be invoked by an action in rem in the case of any such claim as is mentioned in paragraph
(n) of: subsection (2) of section 3 unless the claim relates wholly or partly to wages including the sum allotted out of wages or adjudged by a competent authority under the relevant law to be due by way of wages.
' It may further be pointed out that subsection (8) of section 4 empowers the High Court, while exercising its Admiralty jurisdiction and ordering the sale of any ship, aircraft or property, to hear and determine any question arising as to the title or priorities of claims in the proceeds of sale.
' It may also be noticed-that subsection (9) of section 4 lays down that in determining for the purposes of subsections (4) and (5), the question whether a person would be liable on a claim in an action in personam, it shall be assumed that he has his ordinary residence or a place of business within Pakistan.
18. At this stage, it may be pertinent to point out that the appellants' claim falls within the above- quoted clauses (1) and (m) of subsection (2) of section 3 of the Ordinance, namely, "any claim in respect of necessaries supplied to a ship" and "any claim in respect of the construction, repair or equipment of a ship or dock charges or dues," respectively. None of the above M two clauses has been mentioned in subsections (2), (3), (6) and (7) of section 4. However, they are covered by subsection (4) of section 4 but in order to press into service above subsection (4), it is incumbent to show that the vessel in question at the time of the commencement of the action was beneficially owned as respects majority shares therein by the persons against whom action in personam could have been maintained. In the instant case, it is an admitted position that at the time of filing of the present suit, the vessel was not owned by respondent No,2, who had received the supplies and got the repairs carried out, but respondent No,5 was the owner. In this view of the matter, above subsection (4) is not applicable. It will not be out of context to point out that section 4 of the Ordinance is based on section 3 of the Administration of Justice Act, 1956, which is in force in England. It may be observed that above' clause (a) of subsection (4) of section 4 of the Ordinance has been improved upon inasmuch as in place of the words, "it is beneficially owned as respects all shares", the words "it is beneficially owned as respects majority shares" have been employed. In other words, subsection (4) of section 4 of the Ordinance can be pressed into service even when the person who would be liable on the claim in an action in personam owned majority shares in the ship and not all the shares, which is the requirement of subsection (4) of section 3 of the English Act.
19. We may also observe that the words "or other charge" appearing in subsection (3) of section 4 after the words "a maritime lien" would not cover a case falling under the above clauses (1) and
(m) of subsection (2) of section 3 of the Ordinance. The above words "other charge" have been subject matter of interpretation in the case of Smith's Dock Co. Ltd. v. Owners of the m.v. St. Merriel ((1963) 1 All ER 537), wherein Hewson, J. Of Probate, Divorce and Admiralty Division, has made the following observations:-- "As I read in this context, 'charge' refers to a charge in the nature of a mortgage. I am fortified in this opinion by the wording of section 1(4)(c) of this Act. Such claims are confined to the High Court. I now turn to section 3(3), which provides for similar jurisdiction 'In any case in which there is a maritime lien or other charge on any ship....Of the amount claimed....'. Those clauses of claims are not confined to the High Court. The Admiralty jurisdiction of the Liverpool Court of Passage or any county Court may be invoked subject to the provisions of section 2 of this, Act; but there have been some subsequent Acts which affect the jurisdiction of the county Court.
(2) A maritime lien does not in English law attach to a ship in respect of a claim such as is made in this case, that is, a claim in respect of repairs to a particular ship. Where a maritime lien exists, this subsection gives a right to an action in rem without any restriction as to ownership. The words which have to be considered in this section are, "or other charge on any ship.... Of the amount claimed"; and "other charge" is not 0 defined. But be it noted that the words are not "other claims".
Claims in general are dealt with in subsection (4).
' Counsel for the defendants has submitted that where a statute enlarges the jurisdiction or changes the law it must do so in express terms which must be closely construed, and in support of that submission he referred me to Smith v. Brown ((1871), LR 6 QB 729 at p.733). He also referred me to Leach v. R. ((1912) A.C. 305). Counsel for the plaintiffs did not argue otherwise. I must, therefore, do my best to construe this subsection strictly. "Other charge" obviously is meant to refer to something which, though not within the restricted definition of maritime lien, is, nevertheless, not as wide as 'any claim arising in connection with the ship'."
20. We may observe that Mr. Akbar Mirza, learned counsel for the appellants, is unable to point out that at any point of time in Indo-Pak Sub-Continent, the High Courts have treated the items covered by above clauses (1) and (m) as the items entitling a supplier to claim maritime lien in order to press into service the proviso to subsection (2) of section 3. However, he has invited our attention to the case of Global Shipping Co. (Pvt.) Ltd. v. m.v. Sea Elite' and others 1985 CLC 1569 and the case of Azhar Ahmad Khan and others v. m.v. Ashar and 3 others PLD 1985 Quetta 278, in which inter alia the above sections 3 and 4 have been construed. The above authorities do not touch upon the question which is in issue before us.
21. In the case of Bankers Trust International Ltd. v. Todd Shipyards Corporation (supra), Lord Diplock in his opinion pointed out that during the period that the English Court of Admiralty regarded itself as applying general law of sea, four classes of claims were treated as giving rise to maritime lien on ships, namely:--
(i) Salvage;
(ii) Collision, damage;
(iii) Seaman's wages; and
(iv) Bottamry.
' It has also been pointed out that the above last item is now obsolete but two additional classes of claims have been added in the nineteenth century, i,e,--
(i) master's wages; and
(ii) master's disbursements.
22. The appellants' claim for the above two items does not fall even under any of the above categories, even if we were to assume that the High Courts in Indo-Pak in line with the English Courts were treating the above six items as items entitling the persons concerned to claim maritime lien.
22-A. The upshot of the above discussion is that the above appeal has no merits and, therefore, the same is dismissed. However, there will be no order as to costs.
…and 14 more citing cases