' The plaintiff has filed the suit for the following reliefs:
(a) Order the arrest of the vessel m.v. Justice presently lying afloat at Berth No,1 East Wharf through Harbour Master Karachi Port Trust and Mercantile Marine Department, Government of Pakistan Port and Shipping Wing.
(b) Pass a decree against the defendants jointly and severally favouring the plaintiff in the sum of U.S. $ 246,261.66 plus mark-up/profit at the rate of 20% per annum from the date of the suit till recovery.
(c) Cost of the suit. C.M.A. 1778 of 1996: ' Mr. Muhammad Saleem, learned counsel for the plaintiff, has contended that the plaintiff during the course of the business had disbursed the various amounts on account of vessel m.v. Riha Transporter. The owners of the ship were defendant No,4. The plaintiff being the Shipping Agent had to disburse the amount and pay towards stamp duties, Custom Manifest, necessaries, supplied, repairs carried, whatever accommodation provided to the crew and other necessaries/provisions supplied to the vessel. That the amount so disbursed accumulated to U.S. $. 169,389.46 claiming interest/profit @ 14% per annum which is due and payable on account of disbursement made on behalf of the owner defendant No, The claims of sum of U.S. $ 246,461.66 by way of disbursement made on account of vessel m.v. Riha Transporter owned by the owners defendant No,1 as such the suit comes under the admiralty jurisdiction of this Hon'ble Court. That the plaintiff's company has supplied necessary ration, provision and accommodation as mentioned hereinabove at the instance of the defendant and the claim of the plaintiff falls within the provisions of section 3(o) read with section 4(4)(b) of the Admiralty jurisdiction of this Court. However, documents showing payment at the instance of the defendant has been filed with the plaint. Ad interim orders for the arrest of the vessel were passed on 9-11-1996 wherein it was directed that if security in shape of Bank Guarantee valuing U.S. $ 246,461.66 equivalent Pak. Rs,9,843,678.70 is furnished to the satisfaction of the Nazir of this Court by any of the defendant, the vessel m.v. Justice shall stand released. Mr. Muhammad Saleem learned counsel for the plaintiff, referred Annexure B/1 p.163 a letter from Riha Commodity & Chartering Limited, dated 5-1-1994, intimating that Nadeem Ikramullah committed fraud and they will be in Pakistan for the next few months that m.v. Riha Trade is under arrest in Sri Lanka and m.v. Riha Transporter was sold for scraping in India. That the vessel of which claim is furnished is known as Riha Transporter with defendant No,2, is Benami Company whereas defendant No,4 is the real owner. That Shujauzzaman is not shareholder in the company and the ship has been purchased by the company. That the vessel is owned by defendant No,4 and is bona fide owner and the plaintiff has supplied necessaries etc. That the vessel is being sold by the defendant No,4. The learned counsel has referred photostat copies of the documents P/29 to P/77, P/89, P/95 showing payment subject to market price and owners' approval, signed by the master of the vessel. Mr. Muhammad Saleem referred 1992 CLC 833, PLD 1992 Karachi 444, PLD 1993 SC 88, PLD 1994 SC 894, 1995 MLD 706. Mr. Makhdoom Ali Khan, learned counsel for the defendants, has contended that the claim of the plaintiff is not covered under section 3(2)(o) of the Admiralty Jurisdiction of the High Courts Ordinance, 1980 because any disbursement may by the agent is not maritime lien. That all the claims are for the vessel m.v. Riha Transporter. That the supplies were made for defendant No,4 i,e, m.v. Justice. That no single document has been filed to show that the payments were made, by the plaintiff P/1 page 163 referred hereinabove pertains to Riha Commodity & Chartering Ltd. Who are not defendant in the suit and the letter was not written on their behalf. Mr. Makhdoom Ali Khan has referred paragraphs 8, 9 and 10 of the plaint, that the documents mentioned therein are of July, 1993 and the ownership of the ship at the relevant time was with Regency Trading & Investment Ltd. Nassau-Bahamas. The name of the ship is mentioned Riha Transporter Ex-Cooper. That owners of the vessel are not defendant in the suit. The document at page 535 indicates that owners of the Riha Transporter viz. Regency Trade & Investment Limited sold the vessel to Abbas Ship-breaking and Salvage Ltd., Dharukhana, Bombay 10 India on 15-12-1993. The physical delivery certificate at page 537, English translation at page 539, Certificate of Incorporation in favour of Regency Trade & Investment Ltd. At page 543, Certificate of Incorporation at page 549 issued by Republic of Cyprus in favour of Black Tiger Shipping Company Limited dated 5-11-1993. From the above document it is crystally clear that defendant No,1 was initially named 'Captain P' and was owned by Sea Galaxy Shipping Ltd.
Thereafter, in pursuance of a Memorandum of Agreement of July 30, 1993, it was sold to one Censola Shipping Limited and was renamed m.v. Riha Express. m.v. Riha Express was sold to defendant No,2 and its name was changed to m.v. Justice. That the ship was owned by Regency Trade Investment Ltd. And the ship was subsequently sold to Abbas Ship-breaking & Salvage Ltd.
And was beached, dismantled and sold as scrap and is completely destroyed and no longer exist.
That the plaintiff has also filed suit for same disbursements based on the sank documents in Courts of Egypt where the suit was dismissed, that nothing is due and payable by defendant No,4 to the defendants, directly or on account of defendant No, 1 . The claim of the plaintiff is bogus and false one. That no case under the Admiralty Jurisdiction of the High Courts Ordinance, 1980 is made out. The arrest of the ship is causing gross hardship on the defendant No,1 as the K.P.T. Charges for the berthing are more than Rs,1,00,000 per day. That the suit is hit by the doctrine of res judicata. Mr. Makhdoom Ali Khan cited PLD 1978 Karachi 837, 1984 CLC 2265, PLD 1991 SC 1021, 1991 MLD 148 and PLD 1986 Quetta 54.
' Section 3(2)(o) provides as under: "Any claim by a master, shipper, charaterer or agent in respect of disbursements made on account of a ship."
' Section 4 provides as follows: "Mode of exercise of admiralty jurisdiction:---
(1) Subject to the provision of section 5 the admiralty jurisdiction of the High Courts 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 (D), (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 (I) 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 a claim in the nature of a maritime lien, other than a claim on a bottomary or respondentia bond or to the possession of the ship, the admiralty jurisdiction of the High Court may be invoked by an action in person against the owners of the property which would have been arrested if the proceedings had been in rem.
(7) Notwithstanding anything in the preceding provisions in 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, aircraft 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, the 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."
' Admiralty Jurisdiction and Practice by Nigel Messon, provides: "There is no maritime lien for disbursements incurred by a shipper, charterer or agent.
' The claims which give rise to maritime lien are--
(i) damage done by a ship;
(ii) salvage;
(iii) seamen's wages;
(iv) bottomry and respondentia.
' According to British Shipping Laws, Volume 14, by D.R. Thomas the following claims are recognised as maritime liens:
(a) Damage done by a ship.
(b) Salvage.
(c) Seamen's wages.
(d) Master wages and disbursements. (c) Bottomry and Respondentia. Halsbury's Laws of England, Fourth Edition Reissue provides: "342. Disbursements made by a shipper, charterer. Or agent on account of a ship.--The Admiralty jurisdiction of the High Court includes jurisdiction to hear and determine any claim by a shipper, charterer or agent in respect of disbursements made on account of a ship. Such claims do not confer a maritime lien."
' The authorities referred hereinabove by the learned counsel for the parties are discussed as under:
1. 1992 CLC 833: Messrs Al-Yousuf Baghpati & Co. And another v. m.v.Naran and 3 others.
' In this authority the learned Single Judge of this Court held-- "that the persons who have beneficially owned the shares in the Naran are not the persons who were the owners at the time the cause of action arose."
' On the face of it this authority in my humble opinion is not helpful to the case of the plaintiff.
2. PLD 1992 Karachi 444: Dada Steel Mills (Pvt.) Ltd., Karachi v. m.v. I. Van and 2 others.
' In this authority the learned Single Judge of this Court has observed: "Plaintiffs would be entitled to claim damages due to delayed arrival of ' vessel on account of difference in market price on respective duties viz.. Expected date of arrival and actual date of arrival."
' On the face of it this authority has not -elevancy because the claim of the plaintiff is not for delayed arrival of the ship but it pertains to the amount disbursed' to Riha Transporter which is not defendant herein this matter.
3. PLD 1993 SC 88: Atlantic Steamer's Supply Company v. m.v. Titisee and others.
' Wherein it has been observed: "That there seems to be consensus of view that question, whether a particular foreign law is applicable in a particular foreign country, is a question of fact."
' According to Memorandum of Agreement A/17, it provides provisions for arbitration that the Court shall be subject to law of the country agreed, is place of arbitration viz. President of London Maritime Arbitrators Association.
' Under the circumstances this authority, in my humble opinion is not applicable to the present case.
4. PLD 1994 SC 894: Messrs V.N. Lakhani & Company v. m.v. Lakatoiexpress and 2 others.
' The Supreme Court has observed: "In applying section 4(4) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 one has to take into consideration the existing facts at the time when cause of action arose in connection with the offending ship. In order to invoke the jurisdiction, the plaintiff has to establish that:
(1) The claim falls in any of the clauses as mentioned in clauses (e) to (h) and (j) to (q) of subsection (2) of section 3 and arises in connection with a ship.
(2) When the cause of action for action in personam arose.
(3) The person liable in an action in personam at the time when such cause of action arose, was the owner or charterer of or in possession or in control of the offending ship.
(4) The offending ship or any other ship which is sought to be arrested, at the time action is brought is beneficially owned as respects majority shares by the person liable on the claim in an action in personam."
' With utmost respect at my cammand this authority of the Hon'ble Supreme Court is not helpful to the case of the plaintiff inasmuch as the claim of the plaintiff as suggested does not fall under section (o) of Admiralty Jurisdiction of High Courts Ordinance, 1980 and maritime lien referred hereinabove.
5. 1995 MLD 706: Semco Salvage P.T.E. Limited v. m.v. Kaptan Yusuf Kalkavan Turkish and another.
' Learned D.B. Held as under: "We are not inclined to agree with the learned counsel, because even under the present Law No,35 of 1951 of Egypt, the Maritime lien is attached with the vessel and in terms of Article 6 claim secured by the lien follow the vessel into whatever hands it may pass and such right ceases to exist, when according to Article 7, judicial sate has been affected."
' This authority in my humble opinion is not applicable to the case of the plaintiff inasmuch as the payments allegedly made are not against the present defendant moreover the payment if any made is not covered by the maritime lien, as referred in the earlier part of this order.
' The case-laws cited by Mr: Makhdoom Ali Khan, learned counsel for the defendant are as under:
1. PLD 1978 Karachi 837: Messrs Diamond Engineering, Mechanical, Electrical & Marine Engineering Contractors v. m.v. Luctor-I (m.v. Union Brenda) and 5 others.
' In this authority it has been held: "The supply of goods and materials to and the repair of a ship does not confer a maritime lien. The repairer has, however, a common law possessory lien."
2. 1984 CLC 2265: Oriental Shipping Company Ltd. v. m.v. Monte Cristo and others.
' In this case-law it was held: "Plaintiff not making any claim against ship till purchased by defendant--Vessel changed hands-- Suit for recovery of advance, paid to crews and other charges made by plaintiff, held, not maintainable."
3. PLD 1986 Quetta 54: Aleem Ahmad Ansari and 2 others v. m.v. Ashar and 3 others. In this case- law Ajmal Mian, J. (as his Lordship then was) has observed as under: "A maritime lien is attached to the res and to its every part i,e,, the vessel. It will only extinguish when there is a total destruction of a vessel and not when it is partially destroyed."
' His Lordship further observed: "It is a well-settled principle of law that maritime lien remains intact till the last portion of the vessel is destroyed."
4. PLD 1991 SC 1021: Hong Leong Finance Limited v. m.v. Asian Queen through Nazir of High Court.
' It was held: ' It is undisputed fact that for the claim of their wages, crew members and Master have a maritime lien on the res i,e,, the vessel. It is a right in rem enforceable by action in rem against the res. The concept of maritime lien is not a lien to jurisprudence. Its peculiarities, characteristics, effects and application are universally accepted and have attained jurisprudential maturity."
5. 1991 MLD 148: Messrs Oriental Shipping Co. Ltd., Karachi v. Panaghia Odigitria and 2 others.
' Learned Single Judge of this Court has held: "Ownership of vessel having changed before filing of suit, it became property of new purchaser free from all encumbrances and proceedings in rem for recovery of dues, if any, against previous owners was no longer competent except where there was a maritime lien available, which was not the case in the suit---Suit was thus not competent because ownership of vessel had been changed before the institution of suit and there was no maritime lien."
' The above authorities in my humble view are applicable to the case of the defendant. According to the documents filed by the parties referred hereinabove the ship Riha Transporter was sold away in scrap to Abbas Ship-breaking & Salvage Ltd., Bombay on 15-12-1993.
' I have minutely gone through the material placed with the case. The payments allegedly so made by the plaintiff are not covered by maritime lien as referred and discussed hereinabove. The claim of the plaintiff for disbursement so affected is also not covered by subsection (o) of section 3 of Admiralty Jurisdiction of High Courts Ordinance, 1980. The claim is for Riha Transport which was sold for scrap at Bombay. The supplies were not made to defendant No,4 i,e,, m.v. Justice and no documentary evidence has been produced to show that the payments were effected at the instance of the defendant. The litigation between the parties at the Court in Egypt has been suppressed by the plaintiff. It has been established through the documentary evidence submitted by the defendant that initially defendant No,1 was named 'Captain-P' which was owned by Sea Galaxy Shipping Ltd. And flew Greek flag and was sold to Censola Shipping Ltd. On 30-7-1993 through Memorandum of Agreement and was renamed m.v. Riha Express. Riha Express was sold to defendant No,2 and its name was changed to m.v. Justice. Riha Transporter was registered in and was owned by Regency Trade & Investment Ltd. The ship arrived at Bombay and was berthed on 10-12-1993 and was sold to Abbas Ship-breaking and Salvage Ltd. And was beached, dismantled and sold as scrap. The ship has been completely destroyed and no longer exists. The claim of the plaintiff .Is not covered by the provisions of maritime lien cited, discussed and referred hereinabove. The payments so far made also are not covered by the provisions of maritime lien discussed hereinabove. The cases-law cited by Mr.Muhammad Saleem, learned counsel for the plaintiff, discussed and referred in the earlier part of the order in my humble opinion are not relevant or helpful to the case of the plaintiff whereas the cases-law referred by Mr. Makhdoom Ali Khan, learned counsel for the defendant, are relevant and helpful to the case of the defendant. A bare reading of the provisions of Halsbury's Laws of England, Admiralty Jurisdiction and Practice by Meeson mentioned hereinabove and the provisions of section 3(2)(o) and provisions of section 4(4)(b) of the Admiralty Jurisdiction of the High Courts Ordinance, 1980 fully supports the versions of the defendants. The sum and substance of the above discussion is that the application is without substance and merit which must fail resultantly the same is dismissed. Ad interim order for arrest of the ship dated 9-11-1996 shall stand recalled.
Order accordingly.