' AJMAL J.---This is an appeal against an order dated 15-5-1986 passed by a learned Single Judge in Admiralty Suit No,1/85. The operative portion of the order is contained in para. 6, which read as follows:--- "(6) The learned counsel for the defendant No,1 has contended that the claim for damage for detention of the ship is a claim purely in tort and cannot be entertained under section 3(2)(h) of the Ordinance. There can be no cavil that in the present suit the claim for damages does not arise from any agreement. According to Mr. Sarwana it arises from the charter party agreement or sub- charter. The claim for damage for detention has no nexus with any contract. A claim in tort can be subject-matter of Admiralty jurisdiction provided it arises out of or is connected with an agreement relating to carriage of goods by ship or hire or use of the ship." Reference can be made to Sui Gas Transmission Co. Ltd. v. m.v. 'Good Herald' (1983 CLC 886) and The Antonia P. Lemes (1985) 1 All ER
695. The plaintiffs claim for US $ 91558 being the damage suffered by it due, to alleged illegal detention of the vessel is a claim in tort and does not arise out of any contract for carriage of goods by sea or use or hire of the vessel. Such claim cannot be entertained under the Admiralty jurisdiction."
2. The appellant is being aggrieved by the observation of the learned Single Judge made in the above-quoted para. To the effect that "the plaintiff's claim for US $ 91558 being the ,damage suffered by it due to alleged illegal detention of the vessel is a claim in tort and does not arise out of any contract for carriage of goods by sea or use or hire of the vessel. Such claim cannot be entertained under the Admiralty jurisdiction".
3. The brief facts leading to the filing of the above appeal are that the vessel named Ken Lucky (hereinafter referred to as the Vessel) was obtained by the appellant under Charter-Party Agreement dated 25-2-1984. The appellant in turn time chartered the vessel to respondent No,3, who in turn sub-time-chartered the vessel to respondent No,2. The latter sub-voyage chartered the vessel to respondent No,1 for carriage of a quantity of fertilizer from Tampa, Florida USA to Karachi.
It is the case of the appellant that since respondent No,3 had failed to pay two installments of their charges amounting to US $ 1,14,075 falling due on 2-10-1984 and 17-10-1984, they in exercise of their right under clause 18 of the Charter-party Agreement served a notice dated 19-10-1984 on all cargoes, freights sub-freights and/or amount due or received for and on behalf of the said vessel.
It is also the case of the appellant that respondent No,1 received a sum of US $ 98,759.07 as sub- freight of the fertilizer cargo carried from Tampa, Florida to Karachi, but despite of the service of the notice respondent No,1 instead of paying the above sub-freights after filing Admiralty Suit No,750/84 illegally detained the vessel by obtaining the order of arrest of the vessel. The appellant thereafter filed aforesaid suit for the recovery of the above amount of sub-freight, namely, US $ 98,759.07 and damages for the US $ 91,559. Upon the service of the summon of the suit, respondent No,1 filed aforesaid application under Order 7, rule 10, C.P.C., upon which the order under appeal was passed. The appellant being aggrieved by the above order has filed the above appeal.
4. In support of the above appeal Mr. SA. Sarwana, learned counsel for the appellant, has vehemently urged that the above-quoted observation of the learned Single Judge on the question of maintainability of the claim for damages under Admiralty Jurisdiction while dismissing respondent. No,1's aforesaid application under Order 7, rule 10, C.P.C., is not in consonance with law as a suit for damages in tort under Admiralty jurisdiction is maintainable. In furtherance of the above submission he has referred to the following cases:
(i) The Antonis P Lemos (1984) 2 All ER 353, in which Court of Appeal of England held that, the question, whether the agreement must be between plaintiff and defendant cannot be decided without reference to the agreement. It was also held that in terms of section 20(2)(h) of the Supreme Court Act, 1981, it is necessary for the plaintiff to establish merely that his claim arises out of an agreement of the relevant kind i,e, an agreement relating to the carriage of goods in a ship or to the use or hire of a ship and that it is irrelevant that the agreement in question may not be an agreement between the plaintiff and the defendant.
' The above judgment was affirmed by the House of Lords in the case of the Antonis P Lemos reported in (1985) 1 All ER 695.
(ii) The Moschanthy (1971) 1 Llpyd's Law Reports 37, in which a learned Single Judge of Admiralty Division of the English High Court, held that action in rem in contract and in detinus claiming damages for detention of cargo can be maintained. Schwarz & Co. (Grain) Ltd. v. St. Elefterio (Owners). In the above case a learned Single Judge of the Admiralty Division of the English High Court while construing section 1(1)(h) of the Act, 1956 and corresponding clause of Supreme Court Judicature (Consolidation) Act, 1925, has held that the words were wide enough to cover claims, whether in contract or in tort arising out of any agreement relating to the carriage of goods in a vessel.
5. He has also referred to the following passage from Scrutton on Charter Parties, 8th Edition, page 307, which read as follows:--- "Damages for detention (where demurrage is not provided for) become payable either:
(1) On the expiration of the specified lay-days, if any, as above; or
(2) On the expiration of a reasonable time for loading or unloading when no lay-days are specified; or
(3) On the expiration of the fixed number of days for which demurrage has been stipulated.
' A charter may also be liable for damages for detention of the ship during the voyage caused by his shipping cargo that involves such detention.
' He may also be liable for damages- for detention of the ship if by his breach of contract he delays her in the course of the voyage, e.g. By failure, at a port of call for orders, to give orders in due time, or by his delay in presenting bills of leading for signature."
6. The first above two cases have no application to the point in issue as the learned Single Judge has held that the appellant's suit was competent against the respondent though there was no agreement between the appellant and the said respondent. The other two cases cited and the passage from the Scrutton On Charter Parties indicate that a suit under the Admiralty jurisdiction can be filed for claim, whether it is founded on contract or in tort, if the same arises out of any agreement relating to the carriage of goods. There cannot be any cavil with the above proposition.
If the appellant's claim in tory, would have arisen out of the Charter-Party Agreement, the admiralty suit in respect of the same would have been competent.
7. The allegations in the plaint are that the respondent No,1 by filing the aforesaid suit and upon obtaining the arrest of the vessel through the Court order illegally detained the vessel and thereby caused damages on account of illegal detention. It may be advantageous to reproduce para. 10 of the plaint which read as follows:--- "10. In the submission of the plaintiff, the plaintiff suffered losses in terms of money during the period of illegal arrest and illegal detention from 23-11-1984 to 29-11-1984 detailed as under:--- ' Details of Loss {{TABLE}} Details of Loss Vessel completed discharge at 1430 on22-11-84 Vessel's sailing arrange for23-11-84 Vessel detained on23-11-84 Vessel released/sailed on29-11-84 Fuels $141.20 Hire paid to owners 6-0-27 (6.01944 days @ $ 3450 per day = $ 20,767.08 830.68 $ 19,836.40 Bunders Consumed 7.17 MT Fuel @ $ 200 per MT= $1,434.00 6.8 MT Diesel $ 300 per MT= $ 2, 040.00 $ 3,474.00 Additional Port dues and costs: (Provisional) $15,000.00 Lost Charter Profit T/C RE-LET 24-8-84-REDLY 3 days after D.O.P. Karachi (Effective 0824 26-11-84) 3 days at DIR 7800.00 per day.
Less: 3, 3/3 per cent. 7800 per day= $ 23,400.00 Less: 2-1/2% Commission585.00 = $ 22,815.00 T/C RE-LET 23-11-84-DELY D.O.P. Karachi (0.852 29-11-1984).
6.0.28 (6.019444 days @ 4200 per day.= $ 25,281.67 Less: 3 3/4 per cent. Commission.$ 948.06 $24,333.61 Legal Fees $6,000.00 $ 91,559.00 {{TABLE}} ' The plaintiff has, thus, suffered a loss of US $ 91,559 on account of illegal detention of the said vessel "Ken Lucky" for which the defendant No,1 is liable to compensate the defendant No,1 is liable to compensate the plaintiff."
8. The alleged cause of action mentioned in the above-quoted para. Does not arise out of any agreement relating to the carriage of goods by a ship or the use or hire of a ship, in terms of clause
(h) of section 2 of the Admiralty Jurisdiction of High Courts Ordinance, 1980 but it is founded upon the allegation that respondent No,1 by obtaining an illegal detention order from the Court in the aforesaid suit filed by them caused the losses specified in the above-quoted para. To the appellant. The above cause of action, therefore, is solely based on an alleged cause of action in tort independent of the Charter-Party Agreement. The order under appeal, therefore, does not contain any observation which is contrary to the law.
9. The appeal has no merits and, therefore, it is dismissed with no order as to costs.
' These are the reasons in pursuance of a short order of even date.