1. By this order I intend to dispose of the preliminary issues as framed by this Court on 6-10-1987 with consent of the learned counsel for the parties.
2. Facts briefly stated are that a suit was filed by the plaintiff for recovery of US Dollars 377,560.96 equal to Pak Rs.66,07,316.80 against the defendant No. 1 m.v. `Kapton Yusuf Kalkavan'. The suit teas contested and written statement was filed. After framing of issues and recording of some evidence, the plaintiff moved two applications (Civil Miscellaneous No. 194 of 1989 and Civil Miscellaneous No.259 of 1988) praying for certain amendments. These amendments were allowed by the learned Judge of this Court who was trying the suit. However, an appeal was preferred by the defendant before a Division Bench of this Court being Civil, Miscellaneous Admiralty Appeal No. 1 of 1990, challenging the permission to allow amendments. This appeal was heard and disposed of on 10- 10-1991. It was allowed and the miscellaneous applications for amendment were ordered to be dismissed. The plaintiff challenged the said order before the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 37-Q of 1991. Petition for leave was granted and ultimately the appeal was allowed vide order dated 5th of May, 1992. The matter again was sent for trial by this Court.
3. Learned counsel for the parties were heard on the preliminary issues which were framed on 6- 10-1987 and are reproduced hereunder:-- "(1)Whether this Court has jurisdiction to adjudicate upon and entertain the suit?
2. (2)Whether the sale of the defendant No. 1 by the Ministry of Maritime Transport Red Sea Port Authority free from all encumbrance debts and rights prior to its sale in March 1987 wiped the defendant No. 1 clean of the plaintiff's claim?
3. (3)Whether the sale of the defendant No. 1 free from all encumbrance debts by the act of a statutory - body as distinguished from a sale between private parties, can be called in question before this Court in suit?
4. (4)Whether the statutory sale of vessel by the Egyptian Port authorities as per the Egyptian law did not wipe the vessel in suit clean of prior Maritime Liens and encumbrances?
5. Heard Mr. Muhammad Naeem, Advocate assisted by Mr. Muhammad Riaz Ahmad for plaintiffs and M/s. Zahid Alvi and Tariq Hussain, Advocates for the defendants.
4. The basic issue is as regards jurisdiction of this Court. The remaining questions also pertain to the maintainability of the suit as well as jurisdiction of this Court. Therefore, it will be expedient and proper to dispose of all the issues commonly.
5. Regarding determination of first issue the brief and concise facts and 'the background for filing of this suit would be relevant.. The plaintiff is a company engaged in Marine Salvage Service and the defendant No. 2 are the Pakistani purchasers of the defendant No. 1 vessel for scrapping. It is the case of the plaintiffs that vessel in question having run a ground at the southern end of the Red Sea off Port Salif in North Yemen. The Master of the Vessel Capt. Brol Erk requested for immediate help by way of, salvage service and accordingly at his instance the salvage tug Salviceroy sailed from Jibouti on 20th of March, 1986 to render the required services. It arrived on 21-2-1986 and anchored 11 miles off the vessel and offered salvage service to the defendant on the terms of Lloyd's Standard Form Salvage Agreement "LOF-1980". However, a request was made for immediate help and rescue of the 16 members of the crew out of 27 of the defendant No. 1 vessel which the said salvage tug immediately carried out by taking the crew to Port Salif in North Yemen. However, on account of some violation of legal regulations the tug Salviceroy was detained until 9-3-1986 when port clearance was granted to her and she accordingly left the North Yemeni Port and anchored safely at the high sea outside the North Yemeni territorial water awaiting further instructions. Thereafter pursuant to negotiations for salvage services the salvage tug Salviceroy was mobilized to render salvage service and she accordingly came to the casualty position on 22- 3-1986. It is the case of the plaintiff that the Lloyed's Standard Form of Salvage Agreement LOF 1980 was duly executed by the Master and the Salvage operation resumed forthwith. A copy of the said agreement has been attached along with the plaint, as Mark-1. It is further contended that defendant No.1 vessel was refloated successfully with the efforts of the tug Salviceroy and the Salvage Master. Thereafter it was safely anchored and surveyed for possible bull damage and was found fit to carry the entire cargo and accordingly after going through the protracted local procedure the cargo of 6,000 metric tons was reloaded. Thereafter the defendant No.1 vessel was towed and was headed towards Port Suez where she arrived on 24-5-1986 and was anchored safely. The salvage service thus rendered was accordingly terminated at Port Suez on 24-5-1986.
6. The termination letter is also attached. It is further revealed from the facts that the chatterers of the tug Salviceroy namely Cosel Salvage Ltd., assigned all the rights, inter alia, in respect of the LOF 1980 dated 25-3-1986 in favour of (i) Sambawang Holdings PTE Ltd. (ii) Temasek Holdings PTE Ltd.
7. And (iii) Sembawang Salvage (I) PTE Ltd. And the notice of the said assignment was duly given to the owners of the defendant No.1. Thus pursuant to the negotiations with the assignees mentioned earlier, the plaintiff-Company was constituted in the first week of April, 1986 and the said assignees became shareholders in the said plaintiff's company. Thereafter on 5-1-1987 the said assignees formally assigned their rights under the LOF - 1980 to the plaintiffs who are in terms entitled to full remuneration for salvage service so rendered. The case of the plaintiffs is that in terms of LOF-1980 notices were served on the Lloyd's Committee at London for taking security from the cargo interest as well as from the owners of the defendant No.1 in the sum of US $ 1.25 million and US $ 300,000 respectively pending determination of the salvage award. Accordingly the cargo interests furnished security in the sum of US $ 1.25 million but the owners of the defendant No.1 though endeavoured their London Solicitors negotiated for a reduced amount of security but failed to furnish any security whatsoever. So also owners of defendant No.1 vessel failed to meet their financial obligations to Port Suez and on account of their continued defaults and abandonment of the vessel, the defendant No.1 vessel was disposed of by Port Suez authorities in March, 1987. The plaintiffs learnt that the defendant No.2 has imported the vessel i.e. Defendant No.1 which found her way to the Gadding Ship Breaking Yard and reported to have been beached for breaking. The plaintiffs, therefore, requested for the arrest of the vessel so that it be sold for recovery of the plaintiffs dues to the extent of 41% of the .Total cost of the salvage, 59% having been allocated to the cargo interests. Hence the present suit has been filed.
6. With this background it is to be determined whether this Court has jurisdiction to entertain the claim as made in the plaint. Before proceeding further it is worth to mention admiralty jurisdiction of the High Court is determined vide Ordinance XLII of 1980 "Admiralty Jurisdiction of High Courts Ordinance, 1980. Section 3(2)(i) of the said Ordinance reads as under:--
3. Admiralty jurisdiction of the High Court.--(1)... .. ..
8. (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 questions or claims:--
(a) to (h)------------------------
(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 virtue 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."
9. On question of jurisdiction detailed arguments were addressed by the counsel for the parties.
10. Besides both the counsel submitted written notes in support of their respective contentions. In the written notes counsel for the defendant has also relied on the English Merchant Shipping Act, 1894 to which the plaintiff's counsel raised a preliminary objection that since the same has not been raised at the time of arguments, therefore, the Court may not take into consideration application of sections 502 and 503 of the English Merchants Shipping Act, 1894. It was secondly contended that said provisions are otherwise irrelevant as these have no application to the plaintiff's case.
11. The main argument advanced by plaintiff's counsel was that claim in the plaint is for remuneration for the salvage service rendered by them which had been proved before the arbitrator in accordance- with the Salvage Agreement L.O.F, 1980. It was argued that this Court also may pass a decree. The second contention raised was regarding proceedings in Egypt and it was urged that there lies a mark distinction in proceedings in rem directed against the res which in the present case is the defendant ship and proceedings in personam which are directed against the rights and interest of the defendants in the ship as their property. Learned counsel submitted that proceedings in Egypt were directed against previous Turkish owners of the ship and the proceedings we're in personam whereas the, present proceedings are in rem---falling in the exclusive jurisdiction of an Admiralty Court. Learned counsel invited my attention to statement of D.W.2 examined an expert in---Egyptain Law. He inter alia deposed that in connection with the administrative sale of the properties proceedings are directed against the owner of the property and against any claimants if such claim is registered in Egypt. In connection with the sale of the ship the administrative attachment and sale proceedings deal with the right and liability of the owner of the ship. It was thus argued on such facts that proceedings in Egypt are totally unconcerned and irrelevant with the admiralty proceedings of this Court. Learned counsel in this regard referred to Article 55 of the Qanun-e-Shahadat, 1984. Learned counsel also relied on an English decision being 1908 Reports of Cases relating to Maritime Law, Volume X, New Series, page
147. It was thus urged that plaintiff's rights to proceed in rem is an independent cause of action to proceed against the owners of the vessel personally. Learned counsel in this context referred to Thomas on Maritime Liens, paras. 535 and 536.
12. As against the aforementioned arguments, learned counsel for the defendants contended that it is not a suit simpliciter of the claim in the nature of Salvage. According to them by amending the plaint the plaintiffs now have included salvage award as subject-matte, therefore, the suit has lost its original nature and hence there is no provision in the Admiralty Jurisdiction of the High Courts Ordinance, 1980 which may be attracted. In this regard an argument was advanced that plaintiff had approached Court at Egyptian Port and filed their case for recovery of Salvage Services and attached the sale proceeds which represented the res. It was urged, therefore, that the suit was liable to be dismissed. Another argument raised was that on the analogy of sections 502 and 503 of the English Merchant Shipping Act, 1894, the ship owner's liability is limited and confined only to the value of the vessel. But in the instant case value of the vessel is represented in the proceed of the sale deposited by the Port Authorities after deducting their charges. The claim in the suit exceeds the amount of values of sale proceeds at Port of Suez, the suit, therefore, is liable to be dismissed.
13. Yet another argument which was urged by the defendants' counsel was that plaintiff had not come with clean hands and suit has been filed with mala fides. It was argued that fact of filing a suit before Egyptian Court and arbitration proceedings had not been disclosed in the original suit and this plea was added only when the defendants brought this fact to notices of this Court. It was contended that plaintiff has abused the process of law. Reliance was placed on 1985 CLC. 1355 (Karachi). In the aforementioned case after defining the word "action" it was held that the same includes filing of a suit in the Admiralty jurisdiction of the High Court in respect of claims and causes which have been specified in subsection (2) of section 3 of the Ordinance. However, application of section 20 of the Arbitration Act or reference to the arbitration can hardly attract Admiralty jurisdiction specified in section 3(2) of the Ordinance. It was also contended that under the Egyptian Law the right of the Port Authorities is recognised internationally. Learned counsel submitted that under section 38 of the Evidence Act and Article 52 of the Qanun-e-Shahadat, the defendants have proved that the sale of the vessel was legal and valid under the Egyptian Maritime Laws and further that sale was free from all liens and encumbrances. Reliance was placed on PLD 1993 SC 88.
14. In the light of aforementioned arguments this Court has to decide all the issues commonly. In the first instance it is to be noted that Admiralty Jurisdiction of this High Court is determined under Ordinance XLII of 1980 "Admiralty Jurisdiction of High Courts Ordinance, 1980". Section 3(2)(i) of the said Ordinance reads as under:-- Admiralty jurisdiction of the High Court. ---(1)
15. (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 questions or claims:-- ,(a) to (h)--------------- (i)...Any action or claim in the nature of salvage of life from a ship or cargo or any property on board a shop 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 virtue of the application by or under section 12 of the Civil Aviation Ordinance, 1960 (XXXll of 1960) of the law relating to salvage to aircraft and their apparel and cargo."
16. From bare perusal of aforementioned section it becomes abundantly clear that this Court has the jurisdiction to entertain a suit pertaining to remuneration of salvage services or Maritime liens on the salved property. In the instant case the claim of plaintiff relates to remuneration for salvage services of the defendant vessel, therefore, there is left no doubt that this Court has got jurisdiction to adjudicate upon the issue. Besides, the clear position as laid in law, the Honourable Supreme Court has thoroughly elucidated this question in case of Atlantic Steamers Supply Company v. m.v.
17. Titisee and others (PLD 1993 SC 88). After reproducing the relevant provisions of the Ordinance XLII the Honourable Supreme Court observed as under:-- "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.
18. 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.
19. 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 air crafts 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.
20. It may be observed that section 4 deals with the mode of exercise of Admiralty jurisdiction.
21. Subsection (1) thereof provides that subject to the provisions of section 5, the Admiralty jurisdiction of 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, aircraft or property. , It may also be noted that subsection (4) of section 4 lays down that incase of the claim covered by clauses (e). To (h) and (i) to (q) of n 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 charter . Of, or in possession or control of the ship, the Admiralty jurisdiction of the High Court may where the claim give 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: It may also be observed that subsection (5) of section 4 provides riling 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.
22. It may further be 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.
23. 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.
24. 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.
25. 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."
26. Although the facts in the afore quoted case were slightly different inasmuch as it related to the claim in respect of necessaries. Supplied to a ship and claim in respect of construction, repair or equipment of a ship, or dock charges or dues, claim of the plaintiff in the instant case is regarding remuneration for salvage services of the defendant vessel.
27. Learned counsel for defendant in fact while referring to aforementioned judgment of the Honourable Supreme Court laid much stress that this Court has no jurisdiction to entertain the claim but from minute perusal of the judgment it becomes clear that the Honourable Supreme Court held only that the High Courts have treated items covered by clause (i) (m) as the item entitling a supplier to claim maritime lien in order to press into service proviso (2) of subsection (2) of section 3. As far as maritime lien is concerned it is clearly inferred from the said judgment that the High Court has jurisdiction to entertain the same. As such first issue regarding jurisdiction is settled in affirmative.
28. Similarly it was strenuously urged by defendant's counsel that the sale of defendant vessel by the Ministry of Maritime Transport Red Sea Port Authority is free from all encumbrances, debts and rights prior to its sale in March, 1987 and the same had wiped defendant clean of the plaintiff's claim. It was also argued that since the sale was by statutory body as distinguished from the sale of private party, therefore the same cannot be called in question before this Court in suit. It was lastly argued that statutory sale of vessel by Egyptian Port Authorities as per Egyptian law has cleared the defendant of all the charges. In this respect my attention was also drawn to statement of P.W.2 Salah Muhammad El-Said El-Mokhadem an expert in Egyptian law who has been produced to prove the Egyptian' law on the point. He inter alia deposed about the Administrative Attachment and law relating to the same. Referring to Article 1 of the said law, according to the expert the same speaks of powers and procedure of Administrative Attachments applied in respell of recovery of all dues and moneys of the Government, General Authorities and Public Authorities. It lays down the procedure for statutory sales after attachment. The provision of Administrative Attachment and sale also empowers banks in which the Government hold more than 50% shares to apply the provisions of this law for recovery of their dues and claims. Such dues and claims can be satisfied as Government dues byway of Administrative Attachment and statutory sales by the relevant authority to which the amount is due without obtaining a Court judgment. Law No. 308 is a comprehensive law on the subject. After the property is sold, the Government dues are deducted therefrom and the balance is deposited in the treasury of the Court for satisfying the claim of other claimants, if any. The purchaser of the property sold by way of Administrative Attachment and statutory sale receives a title to the property free of all prior liens or encumbrances, if any on the property. The purchaser receives clean and clear title. Even in case of maritime lien the rights are transferred to sale of the proceeds. In case of Salvors lien the right of the Salvor is transferred to the Sale Proceeds in the same rank and categories as the same before. He, however, admitted that the categories are the same as mentioned in Article 2 of the International Convention for Unification of Rules relating to Maritime Liens of 1926 which corresponds to Article 1 of the Egyptian Law No. 35 of 1951... ... .... .... Egypt is not a party to Convention of 1926 but it has adopted the same principles thereof and made it a part of their law. In his statement he further admitted that statutory sale has the same effect as that of a Court sale .... A Salvor who has a Maritime Lien on a vessel can only file a case against the sale proceeds of the vessel once it is sold by way of Administrative Attachment.
29. He cannot bring a case or file a case for arrest of the vessel. In cross-examination he defined the right in rem to mean right attached to the property which is known as privileged right in Egypt.
30. Mr. Naeem contended that in fact all the proceedings mentioned by the defendant were aimed to prove ----- foreign law relating to proceedings in personam and not proceedings in rem. While further elaborating his point he pointed out that a marked distinction exists between proceedings in rem directed against the res and proceedings in personam directed against rights and interest of the defendants in ship as their property. He vehemently urged that proceedings in the Egypt Court were essentially proceedings in persona against the previous Turkish owner, whereas suit here is against res, therefore, these are proceedings in rem within the exclusive jurisdiction of Admiralty Court. This argument was controverted by the defendants' counsel saying that the Egyptian Expert was produced to explain the entire Maritime laws. His statement is relevant under section 38 of the Evidence Act and Article 52 of the Oanun-e-Shahadat wherein it was proved that the sale of the vessel was legal and valid under the Egyptian Maritime Laws, and that the sale was free from all liens and encumbrances. According to learned counsel similar laws are applicable in Pakistan to the Port Authorities to exercise powers for non--payment etc. Reference was made to section 52 of the Karachi Port Trust Ad, 1986. He contended, therefore, that there is no difference under Pakistani system of law and Egyptian Law, therefore, there is no difference between lex for and lex loci. It was further contended that statutory claim does not come within any section of Admiralty Laws. It was, therefore, contended that on sale by Port Authority all maritime liens were extinguished including salvage lien as it is statutory sale under the law of land. My attention was drawn to PLD 1980 Karachi 458. The facts of the said case were regarding the authority of Karachi Port Trust. And its entitlement to have its claim satisfied and referring section 52 of Karachi Port Trust Act, the learned Judge observed that Karachi Port Trust has more than a statutory right of lien. It has also the right to distrait or arrest a vessel for non-payment of tolls, dues, etc. And to sell the same and out of the sale proceeds thereof adjust its dues. The question of priority was also determined. Learned counsel then referred to (1905) 2 KB 817 in which learned Judges agreed that the Harbours Board may cause such vessel to be detained until all such rates have been paid, gives the Board a paramount right to detain a vessel until the dock tonnage rates due in respect of her are paid. This is an express statutory right and the board have nothing to do with any sale of the vessel to any purchaser. This is a matter which only concerns those who are interested in the vessel. It does not concern the Board. It gives a right to the Board to detain the vessel until the dock dues are paid.
31. Similarly following authorities were referred to in this respect:--
(1) 19571 LL.L Rep. Page 151:F,
(2) 19681 LL.L Rep. Page 182
(3) 1932 4 LL.L Rep. Page 309
(4) 1923 AC page 345.
32. This discussion leads us firstly to determine whether Egyptian Law regarding maritime lien of the ship is applicable or not? The answer can be found in the judgment of Hon'ble Supreme Court as reported in PLD 1993 SC 88. It was inter alia observed by the Hon'ble Supreme Court that 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. Besides expert opinion on a foreign law is also a relevant fact and therefore an expert can also be examined. In the instant case the Egyptian Expert (D.W.2) has been examined to prove the lex for'. In the instant case it will be the Egyptian Law which shall hold the field and which was duly proved by the defendant. Next question would arise as to what is the Egyptian Law on the point and whether in the aforementioned law all the encumbrances including Maritime liens were cleaned after statutory sale by the Port Authority.
33. While explaining Law No. 30$, the Egyptian Expert stated that:-- "It is a comprehensive law on the subject. After the property is sold the Government dues are deducted therefrom and the balance is deposited in the treasury of the Court for satisfying the claim of other rhea claimants if any. The purchaser of the property sold by way of Administrative Attachment and Statutory Sales receives a title to the property free of all prior liens or encumbrances, if any on the property. The purchaser receives clean and clear title." .Similarly regarding Salvor's lien, the expert opined as under:-- "In case of a Salvor's lien the right of the Salvor is transferred to the Sale proceeds in the same rank and categories as it was before. By Article 67 the property sold becomes clear and free from all encumbrances. The sale proceeds are deposited in the Court havingjurisdiction, where the property is located. In Suez there is a Court which is known as Primary Suez Court of First Instance. It is competent to deal with cases of Maritime Jurisdiction. A Salvage claimant is entitled to apply the Court where the money is depositedfor satisfaction of his claim ...."
34. Likewise while explaining Law No. 35 of 1951 relating to Maritime Liens and mortgages, the expert stated how the priorities are determined. According to him the rank of priorities are as under:-- (i)Government dues including port dues; (ii)Crew wages (iii)Salvage remuneration; (iv)Contribution to General average, Cargo claims, damages and injuries to passengers and the crew.
35. (v)Contracts done by the Master for continuation of the voyage entered from the Home Port of the Vessels.
36. It is now well established that question whether a particular foreign law is applicable in a particular foreign country is a question of fact. The same must be expressly pleaded and proved like any other issue of fact. The defendants have taken this plea and have examined D.W.2 an Egyptian expert besides the translation of Egyptian Law on the subject. According to Egyptian Law as reproduced hereinabove, property sold becomes clear and free from all encumbrances by virtue of Law No. 308 of 1955 and Article 67 of the said Law. The purchaser of the vessel get the same free from all encumbrances including maritime liens. However, a Salvage claimant is entitled to apply to the Court where money is deposited for satisfaction of his claim. Plaintiffs counsel has, however, invited my attention to the deposition of expert witness wherein he deposed as follows:-- "In connection with the administrative sale of the properties, it is correct that proceedings are directed against the owners of the property and against any claimants his claim if registered in Egypt. In connection with the sale of the ship the administrative attachment and sale proceedings deal with the right and liability of the owner of the ship: In re-examination the expert stated that there is no conflict between law, of 1951 and 1955. However law .Of 1955 has priority over law of 1951. The statement in Exh.P/5 is not correct because there is no law in Egypt which states so ;neither is there Court judgment to this effect.
37. The plaintiff's counsel has relied on an English decision i.e. 1908 Reports of the Cases relating to Maritime Law, Volume X, New Series page 147, in respect of the ship `Optima'. The relevant observations on page, 149 were reproduced as under:-- "There are two kinds of actions which can be maintained; one is,-g personal claim against the owner of property salved for salvage, the other is a claim in rem against the property salved, for salving it. This is the fist time I have ever heard of a claim being made against the proceeds of the sale of the property while in the hands of someone, who sold it unless indeed it was sold while in the hands of the Court. It is perfectly true that in some cases, where the proceedings are in rem against the property, and where that property has been arrested and sold by the Court, the Court,, having the proceeds in its hands and having, by virtue of. The sale, freed the ship from all liens and claims against it in the hands of the purchasers, who take it by virtue of the title confirmed by- the Court, the Court retains those proceeds to answer all claims that may be made against the ship."
38. From reading of this judgment also it becomes clear that where proceedings are in rem against the property, and where that property has been' arrested and sold by the Court, the Court, having the proceeds in its hand and having by virtue of this sale freed the ship from all liens and claims against it in the .Hands of the purchaser who take it by virtue of the title confirmed by the Court. The Court retains those proceeds to answer all claims that can be made against the ship.
39. From all what has been stated above I have no other option but to conclude that according to Egyptian Law, if a ship is arrested by Court and a statutory authority has claim over it, it can attach the ship and sell it under the abovesaid law and then deposit sale proceed in the Court. The statutory sale has the same effect as that of Court sale. Thus according to Egyptian Law a statutory sale has the same effect as that of a sale by Court. This authority, therefore, lends no support to the plaintiff's case. According to Egyptian Law a Salvor who has a Maritime Lien can file a case against the sale proceeds of the vessel once it is sold by way of Administrative Attachment.
40. The contention of the plaintiffs counsel that proceedings in rem against the vessel are distinct from proceedings in personam may be true in English law or law applicable to Commonwealth Countries but according to expert opinion of Egypt D.W.2, statutory sale has got the same effect as of a sale by Court rendering a vessel free from all encumbrances regarding title. Defendant No.2, therefore, has obtained the ship free from all encumbrances and as per Egyptian Law the defendant vessel after sale was free from all encumbrances, debt by the act of statutory body.
41. Issues Nos.2 and 3 are thus answered accordingly. It is held that prior to its sale in March, 1987 the statutory sale has wiped the defendant No. 1 clean of the plaintiffs claim according to Egyptian law and issue No. 4 is answered in negative. However, as per Egyptian law, the plaintiff as a Salvage claimant is entitled to approach the Court where the money is deposited for satisfaction of his claim.
42. In view of the above discussion I have come-to the conclusion that the plaintiff has no legal claim after sale of the defendant ship in March, 1987 and thus the plaint is dismissed with costs throughout. Decree sheet to be prepared, in terms of order.