CAP. YOUSUF KAZI AND Another vs S. S. PHOENIX AND 3 Other

1. The plaintiffs who are partners of Messrs International Shipping Agency have brought the suit in rem in the admiralty jurisdiction of this Court against s. s. Phoenix, a ship registered in Greece for recovery of Rs. 4,66,419.67, being the balance amount due from the defendants as per disbursement account. They have also joined its owners which is a Company carrying on business in Greece, the Managing Director of the Company and Pioneer Shipping Agencies Limited which was first appointed by the plaintiffs' firm as sub-agent to handle the ship, as parties to the suit. This takes the action in rem as well as in personam.

2. The case of the plaintiffs briefly stated, is that on 1-7-1976 defendant 2 appointed the plaintiffs' firm as its exclusive shipping agent in Karachi for its ship s. s. Phoenix and for its other vessels.

3. Defendant 3 by letter dated 24-9-1976, addressed to the plaintiffs firm informed them that s. s. Phoenix would reach Karachi by 10th or 12th October 1976 and requested the plaintiffs to represent the ship. The ship arrived at Karachi on 15-11-1976 and according, to the plaintiffs it had a number of problems including that of the crew. It needed bunker oil and repair. Defendants 2 and 3 asked the plaintiffs to handle the ship and for this purpose to engage the services of Stevedores and Ship Chandlers, etc. The plaintiffs it is alleged, that on instructions from defendants 2 and 3 tried their level best to overcome the various problems and called upon defendants 2 and 3 to provide at least 400 tons of bunker oil so that the ship could take Cargo for Kuwait and reach its destination. It is alleged that the said defendants failed to provide the same. On the requests of defendants 2 and 3 the plaintiffs engaged Central Shipwright Contractors to carry out the repairs to the ship. On 23- 11-1976 they required the plaintiffs to ask the Captain to sign off the crew and to debit their tickets and hotel expenses and to keep the ship in good condition and to attend to other requirements of the crew on board. According to the plaintiffs defendants 2'and 3 knew well that the plaintiffs' work as Shipping Agent vis-a-vis the authorities was undertaken by defendant 4 who held the licence.

4. They engaged Messrs Dinsbaw & Company, Stevedores and Dubashes who carried out workof the value of Rs. 1,41,452.71, out of which they paid Rs. 1,00,000 to them and the balance is due from defendants I to 3. The plaintiffs further claim what Central Shipwright Contractors carried out the repairs to the ship of the total amount of Rs. 1,43,550. . The ship chandlers supplied food and necessaries of the value of Rs. 70,796. It is also claimed that Sind Lighterage Company had carried on the loading of the cargo and submitted their bills for Rs. 1,09,61.9. The plaintiffs claim to have paid salaries to the crew and the officers and advances to the Master amounting to Rs. 2,27,887.77.

5. The plaintiffs have claimed several other amounts on account of supply of bunker oil, watchman charges, laundry charges, tally charges, commission, etc. As mentioned in the disburse--ment account reproduced In extenso hereinafter.

6. According to the plaintiffs the total freight received for the cargo loaded on board the ship was a sum of Rs. 7,02,263.72, while the total disburse--ments in respect of the ship were of the total sum of Rs. 11,68,783.39 as per details contained in the Disbursement Statement (Exh. 37/11.6), which are as follows :---- DISBURSEMENTS STATEMENT OF S. S. PHOENIX Rs.

7. Stores and Provision70,796.00 Watchman charges6,570.00 Laundry charges1,039.90 Lubricants and Oil26,223.00 Tally Charges9 000.00 Food Expenses through Chief52,835.19 Steward and other expenses76,542.15 Cash advance to Mastes and other payments to crew2,27,888.77 Stevedoring charges1,41,452.71 Telex charges (Approximate)1;000.00 Medical treatment and expense3,320.00 Bunker 50 tons41,669.00 Bonded Stores5,550.00 Lighter charges1 81 273.00 Repairs1,4 2,461.00 Commission on Import Cargo on U. S. 2 --% (20,000 Approximate)5,000.00 Commission on outward Cargo 5 % on Rs. 7,02,363.7235,118.19 Brokerage 2 % on 7,02,363.7214,047.27 Miscellaneous Expenses35,000.00 Freight Tax 11 % on Rs. 7,02,363.7277,260.00 Pioneer Shipping Agencies Ltd. for s. s. Phoenix on A/c.22,232.40 11,39,783.39 Telex and other expenses payable to Transworld Shipping Corporation Ltd .29,000.00 LESS 11,68,783.39 Freight Receipts7,02,363.72 Balance in our favour 4,66,419.67 It is stated that the plaintiffs made a demand for payment of this amount on the defendants 2 and 3 and requested them to come to Karachi. Defendant 3 arrived in Karachi on 4-2-1977 but failed to meet the difference of Disbursement Account. It is also claimed that defendant 2 wanted the plaintiffs to provide Bunker Oil and pay port dues and on their refusal to do so defendants 2 and 3 terminated their authority and by the letter dated 4-2-1977, appointed defendant 4 as their local agent of the ship. Therefore, the plaintiffs have prayed for judgment and decree against the defendants jointly and severally in the sum of Rs. 4,66,419.67, being the balance amount shown in the Disbursement Statement with costs and interest at 16 per cent per annum from the date of the suit till payment.

8. The defendants 1, 2 and 3 filed their joint written statement pleading that plaintiff 1 had met defendant 3 in Mombassa and had assured that after the ship reached Karachi all the expenses of bunker oil, crew and repairs and other expenses of the ship would be met out of freight earnings.

9. They also pleaded that the suit is not maintainable in the Admiralty jurisdiction of this Court. With regard to the services rendered by the ship chandlers, Stevedores & repairers the defendants expressed their ignorance and denied that Messrs Dinshaw & Company had carried out the work of Rs. 1,41,452.71. They further pleaded that if the plaintiffs have made any payment to the said Messrs Dinshaw & Company they did so at their own risk. They also urged that the amount claimed by the Stevedores was fantastic and at least three times above the normal market rate and the rates charged by them from others. With regard to the claim for repairs they state that the bills were highly inflated and false. As regard the bills of ship chandlers it is stated that the same are highly inflated. Regarding the bills of Sind Lighterage Company it is stated that they are false and fictitious. It is further pleaded that to the best of the information of the defendants no lighterage expenses were incurred on account of the ship. The defendants also denied that the plaintiffs have paid salary to the crew and officers, and made advances to the Master amounting to Rs.

10. 2,27,887.77.

11. As regards the problems relating to vessel at Karachi it is stated that the plaintiffs, instead of attending to these, by their various acts of commission and omission mismanaged the whole affair and later on deliberately created more problems with the ulterior object of harming the interest of the vessel, and finally rendered the vessel unseaworthy, e.g., by losing the anchor of the vessel, damaging the winches and stowing the cargo badly. With regard to the claim of the plaintiffs that they had earned total freight of Rs. 7,02,263.72, the defendants submitted that the freight of the cargo loaded on board the vessel at the prevailing market rate was much more than that shown by the plaintiffs. The defendants further denied that the total disbursement in respect of the vessel amounted to Rs. 11,68,783.39.

12. The said defendants denied that they terminated the appointment of the plaintiffs for the reason that they had refused to meet the expenses of the vessel. They stated that when defendant 3 came to learn that the plaintiffs were not licensed ship agents and that the agency of the vessel was being handled by defendant 4 from the very beginning, they merely confirmed the appointment of defendant 4.

13. As regards the appointment of defendant 4 as sub-agent they denied that they knew defendant 4 was handling the agency of the vessel.

14. Defendant 4 filed its separate written statement claiming that the suit was not maintainable in law and was bad for misjoinder of the parties and that defendant 4 was neither proper nor a necessary party to the suit. It further pleaded that the plaintiffs had never appointed defendant 4 as sub- agent as alleged.

15. The learned counsel for the parties filed the following consent issues which were adopted by the Court.

(1) Whether the suit is not maintainable?

(2) Whether the plaintiffs made representations as alleged and mis--managed the vessel as alleged?

16. (2-A) Whether the plaintiff's have no claim and/or cause of action against defendant No. 4 and the plaint is liable to be rejected under Order VII, rule 11, C. P. C. Against defendant 4?

(3) Whether the plaintiff's are entitled to the sums claimed from the defendants ?

(4) What is the sum collected by the plaintiffs as freight?

(5) What is the effect of plaintiffs not holding a licence under the Customs Act?

(6) What should the decree be?

17. The plaintiffs in support of their case have examined Ahmed Khan P. W. 1 (Exh. 6), Akhtar A.I Khan, P.

18. W. 2 (Exh. 7), Feroz H. Dinshaw, P. W. 3 (Exh. 8), Syed Dastgir, P. W. 4 (Exh. 9), Muhammad Ikramuddin, P. W. 5 (Exh. 10), S. H. Mahmood, P. W. 6 (Exh. 11), Farhat A.I, P. W. 7 (Exh. 12), Hashim Raza, P. W. 8 (Exh.

19. 13). Humayun Abbas, P. W. 9 (Exh. 14), Zakaria, P. W. 10 (Exh. 15), Akbar Anjum Shaikh, P. W. 11 (Exh. 16), Dr. M. Farooqui, P. W. 12 (Exh. 17), Abdul Salam, P. W. 13 (Exh. 18) and Yousuf Amin, P. W. 14 (Exh. 19), besides the plaintiff No. 1 whose evidence is Exh. 37.

20. A large number of documents have also been produced, some of them were brought on record by consent of the parties. On behalf of defendants 1 to 3 only defendant 3 came into the witness-box and his evidence is Exh. 38.

21. Now, before I deal with the issue framed in this case I may state that the suit is liable to be dismissed on the short ground that the evidence produced by the plaintiffs in this case shows that they have not disbursed the total amount of Rs. 11,39,783.39 as alleged but have disbursed only a total sum of Rs. 4,78,057.24 which amount is less than the amount of Rs. 7,02,363.72 which they admittedly had in their hands on account of the freight earnings. The plaintiffs have based their suit on the balance due on disbursement account. The meaning of disbursement as given in the Oxford English Dictionary, 1961 Edition, is "the action or fact of disbursing that which has been disbursed ; money paid out ; expenditure". If the plaintiffs had not paid the full amount as shown in the disbursement statement they had no cause of action for filing the suit. In fact their action of getting the ship arrested even before they had paid the amount appears to be the result of termination of the agency of the plaintiffs by defendants 1 to 3 on 4-2-1978, and therefore mala fide. Further, they have made a large number of claims which are found exaggerated or inflated, besides there being no proof whatsoever, in respect of some of them as I would presently show while dealing with each item separately.

22. Now, I would first take up Issue No. 3 which is whether the plaintiffs are entitled to the sums claimed from the defendants.

23. The first claim is of payment of Rs. 70,796 on account of supplies of stores and provisions made to defendant 1. This amount is made up of three items.

24. The first item is of Rs. 35,991.20 on account of supplies made by Nak Ship Chandlers. The second item is of Rs. 30,900 on account of supplies of provisions made by Foodco Suppliers. The third item is of Rs. 5,099 on account of supplies made by Piraeus Basileous Ship Chandlers.

25. It is admitted by the learned Advocates for the parties that the total amount of these bills comes to Rs. 32,520.80, although the plaintiffs have claimed Rs. 35,991.20 on account of payment to Nak Ship Chandlers. Only Mr. Iqbal Kazi Advocate admitted that the plaintiffs have supported the claim by the bills and the receipts of the total amount of Rs. 32,520.80 only. Mr. A. H. Mirza submitted that these bills are highly inflated and bear rubber stamps of the Master of the Ship, `subject owners approval'. But the defendants have not produced any evidence that the defendants disapproved of the bills at any time. They also did not lead any evidence that these bills are inflated. Mr. Mirza further submitted that the suppliers namely, NAK Ship Chandlers had agreed to reduce their claim by Rs. 11,000 to Rs. 25,000 but he admitted that excepting a bare suggestion made to the witness in his cross-examination to this effect no evidence has been produced by the defendants in this regard. Even defendant 3 who carne in the witness-box did not make any statement with regard to the alleged agreement or with regard to the prices mentioned in the bills (Exhs. 7/z, 7/4 to 7/43). Mr. Iqbal Kazi argued that by suggesting to P. W. 2 that he had agreed to reduce the claim by Rs. 11,000 defendants have impliedly admitted that the supplies made to the ship were of the value of Rs.

26. 36,000. Although I do not accept the suggestion for want of supporting evidence, the suggestion is not totally without basis for no evidence has been produced by the plaintiffs in support of a part of their claim. Not only that the plaintiffs have failed to produce any receipt for part of their claim, i.e. For Rs.3,470.40 but also they have not produced any account books. 1, therefore, hold that the plaintiffs have proved the claim for supplies made by NAK Ship Chandlers to the defendant to the extent of Rs. 32,520.80 only.

(ii) The second amount claimed by the plaintiff is of Rs. 30,900 on account of supplies of provisions made by Foodco Suppliers.

(iii) The third amount claimed by the plaintiffs is a total sum of Rs. 5,099 on account of supplies made by Piraeus Basileous Ship Chandlers and covered by three bills (Exhs. 20, 22 and 23) which were admitted by Mr. Mirza, Advocate for defendants 1 to 3, and which have been brought on record by his consent. Since these bills were admitted by the defendants this claim stands proved.

27. Thus instead of Rs. 70,796, the plaintiffs have proved the claim under the first item for Rs. 68,017.20.

28. The plaintiffs have claimed a sum of Rs. 6,570 on account of watchman charges paid by them. In support of this claim the plaintiffs have produced the bills of Syed & Brothers. These bills were brought on record and marked as Exhs. 29 to 31 by consent of the Advocate for the defendants.

29. However, the objection of Mr. Mirza is that the total amount of the bills comes to Rs. 5,070. He submits that the plaintiffs have not led any evidence whatsoever, for the rest of the amount claimed under this head. Mr. Iqbal Kazi, Advocate agrees that there is no evidence in support of the claim for Rs. 1,500 under this head. Accordingly, the plaintiffs have proved their claim for Rs. 5,070 under this head.

30. The plaintiffs have claimed a sum of Rs. 1,039.90 on account of Laundry Charges paid by them. In support of this claim the plaintiffs have produced four bills (Exhs. 32 to 35) for the total amount of Rs. 1,039.90 which were admitted on behalf of the defendants 1 to 3. Mr. Mirza advanced no arguments regarding this claim. I accordingly, hold that the claim stands proved.

31. Under the head of Lubricants and Oil the plaintiffs have claimed a sum of Rs. 26,223 on account lubricants, oil and charges for barges for transport of oil supplied and provided by Umer Suppliers.

32. In support of this claim, the plaintiffs have examined Zakaria son of Haji Umer whose evidence is Exh.

15. He hat proved five bills Exhs. 15/1 to 1-5/5. The total amount of the four bills (Exhs. 15/1, 15/2, 15/3 and 15/5) comes to Rs. 26,223. If the amount of the bills Exh. 15/5, is added thereto, the total amount of the claim will increase to Rs. 32,163. The objection of Mr. Mirza with regard to the claim for Rs. 5,940 allegedly paid by the plaintiffs to Umer Suppliers vide Exh. 15/4 is that this amount has not been included in the amount claimed in the suit. However, the submission of Mr. Kazi is that notwithstanding the fact that the plaintiffs have not included the amount of this bill in the amount claimed under the above head, the plaintiffs are entitled to it as Zakaria has proved that the barge for carrying the oil supplied by the Premier Oil Company was provided by Umer Suppliers. He further submitted that Abdus Salam son of Hakim of Premier Oil Company in his deposition has stated that the supplies to the ship were arranged through the barge provided by Umer Suppliers, therefore, the claim on account of charges for the supply of barge carrying the supply to the ship stand proved.

33. But the fact remains that the plaintiffs did not include the amount of the bill (Exh. 15/4) in the amount claimed in the suit nor did they apply for amendment of the amount claimed in the suit.

34. Plaintiff No. 1 who came in the witness-box did not give any explanation as to why he did not include this amount in the claim. In these circumstances it would not be fair to defendants 1 to 3 to saddle them with this amount.

35. The plaintiffs, according to the disbursement statement, have claimed a sum of Rs. 9,000 on account of Tally Charges. Feroze H. Dinshaw partner of the, firm Messrs Dinshaw & Company in his evidence (Exh. 8) has produced in his cross-examination 3 Tally Sheets (Exhs. 18/19 to 18/21). The defendant in his cross-examination has produced 8 Tally Sheets collectively marked as (Exh.

36. 38/24) of Sea Lines Corporation, Tally Contractors. However, the plaintiffs have not produced any bills for Tally charges nor Captain Kazi who came in the witness-box has said anything about the payment of the charges to Sea Line Corporation. Defendant in his deposition (Exh. 38) stated that the Tally charges have been inflated to Rs. 3 per ton as the market rate was only Re. 1 per ton.

37. According to the calculation made by the learned counsel for the parties on the basis of the Exhs.

38. 8/19 to 8/21 and Exh. 38/24 the total of the cargo for which the Tally work was done is 3285 tons. Mr. Iqbal Kazi, Advocate argued that the number of packages for which the Tally work was done was 27,648 and therefore, the amount claimed is reasonable but in the absence of any bills and proof of payment to Sea Line Corporation, or any other evidence with regard to the market rate of tallying work I am afraid, if I accept this suggestion to Mr. Iqbal Kazi I would be basing my finding on no evidence but purely on conjectures, more so when defendant 3, who came in the witness-box has made a definite statement that the market rate was rupee one per ton and he has not been cross-examined thereon. It is true that except bare words of defendant 3 there is no other evidence led by him as regards the market rate. However, the burden of proving the claim being on the plaintiffs they should have discharged it, but they failed to do so. I, therefore, bold that the plaintiffs are entitled to Rs. 3,285 on account of Tally Charges.

39. The next item of claim made by the plaintiffs in the disbursement statement (Exh. 37/116) is with regard to Launch Hire Charges. In support of this claim plaintiff No. 1 stated in his deposition that he had hired passenger launch for carrying crew and the officers of the ship from to port basin Keamari and back to the ship and that he made two payments of Rs. 1,060 and Rs. 1,280 to Ahmed Moosa which are supported by two receipts (Exhs. 37/100 and 37/101). The plaintiffs also produced two bills collectively marked as Exh. 36 signed by Ahmed Moosa, Launch Contractor for Rs. 1,060 and Rs. 1,160 which have been admitted by the Advocate for the defendants. These bills bear an endorsement "M. C. B. Chequ. C. M. Q. 6986069, dated 26-11-76 for Rs. 2,340". This endorsement implies that the payment of Rs. 2,340 was made to Ahmed Moosa, Launch Contractor. Mr. A. H.

40. Mirza, Advocate for the defendants while arguing admitted this claim. I, therefore, hold that the claim under the said head stands proved for the full amount.

41. The plaintiffs have claimed in the disbursement statement (Exh. 37/ 116) a total sum of Rs. 23,706.96 on account of payments made to five hotels named below. The break-up of this amount is also shown against the names of the said hotels.

42. Rs.

43. 22,826.96 According to the plaintiffs, these payments were made on account of stay of members of the crew and the two Masters of the vessel.

44. So far as the claim for payment of the amount to Bristol Hotel is concerned the plaintiffs have examined Mr. S. H. Mahmood, Manager of the Hotel (Exh. 11) who deposed that 9 persons mentioned in the deposition had stayed in his hotel from 2211-1976 to 29-11-1976 and Captain Kazi had paid their boarding and lodging charges. In support of the said payment he produced the photostat copy of the Customers Register (Exh. 11/1) duplicate bill for Rs. 7,603.31 (Exh. 11/2) and the receipt dated 29-I1-1976 for Rs. 7,390.76 (Exh. 11/3). Mr. A. H. Mirza, Advocate for the defendants submitted that the plaintiffs have been able to prove their claim only to the extent of Rs. 7,390.76 made to this hotel. There is no other oral or documentary evidence as regards the payment of the rest of the amount of Rs. 217.65. I, therefore, hold that the plaintiffs paid Rs. 7,390.76 to the said Hotel and are entitled to claim the same from the defendants 1 to 3.

45. The plaintiffs have claimed a sum of Rs. 4,445.05 on account of payment made to Hotel National City. In support of this claim the plaintiffs examined Akbar Anjum Shaikh, the Manager of the Hotel.

46. His deposition is Exh.

16. The amount claimed is made up of the following four amounts :----

(i) Rs. 2,127.44 ;

(ii) Rs. 1,443.71 ;

(iii) Rs. 730.12 ; and

(iv) Rs. 143.78.

47. And in support of this claim the witness produced bills and receipts Exhs. 17/1 to 16/40. In the first instance Mr. Mirza admitted the payment of two amounts of Rs. 730.12 and Rs. 143.78 covered by bills (Exhs. 16/37 and 16/38). He however, during the course of arguments further admitted the amount of Rs. 2,127.44 covered by the bill (Exh. 16/1) and the receipt dated 18-1-1977 (Exh. 16/2). The receipt for payment of the amount of Rs. 2,127.44 is in the name of International Shipping Agency, the firm of the plaintiffs. Therefore, it is obvious that the payment of this amount must have been made by the plaintiffs.

48. Now, the only disputed amount is of two bills (Exhs. 16/3 and 16/8) for Rs. 1,443.71. It may be mentioned that the bill Exh. 16/3 includes amount of the bill of Exh. 16/8. These two bills with 33 supporting vouchers Exhs. 16/4 to 16/7 and 16/9 to 16/36 are all in the name of Mr. Magdy Sayeed Alessaf. It is contended by Mr. Mirza that since these bills are in the name of Mr. Magdy Sayeed Alessaf, payment thereof must have been made by him. On the other hand Mr. Iqbal Kazi has argued that although these bills are drawn in the name of Mr. Magdy they show the address of the firm of the plaintiffs as they bear the words "care of International Shipping Agency" as in case of all other bills and he therefore, wishes me to conclude that the payment must have been made by the plaintiffs. He further submitted that since Mr. Magdy was one of the members of the crew and since the crew had no money, the payment must have been made by the plaintiffs. However, it is not possible to draw such a conclusion for where payments were made by the plaintiffs their name is shown as in the case of the two former bills. In any case, the plaintiffs have failed to produce any receipt for the payment of the amounts of the two bills. Further, it is the case of the plaintiffs themselves that they had advanced certain moneys to the members of the crew and they have claimed a sum of Rs. 2,27,888.71 on account of payments made to the other members of the crew.

49. Therefore, in the circumstances it cannot be said conclusively that the crew had no money with them. Moreover, Anjum Shaikh (Exh. 16) in his examination-in-chef had in clear terms, stated that the payment of these bills was made by Mr. Magdy. I, therefore, hold that the plaintiffs have proved payment of Rs. 3,001.74 out of claim of Rs. 4,445.05 on account of payment made to Hotel National City.

50. The plaintiffs have claimed a sum of Rs. 8,346.40 on account of payment made to Hotel Mehran for stay of Mr. Schifito, the Chief Engineer of the ship, his wife Wong Rane, Captain Efsthathion and Captain Constantinos. The plaintiffs have examined Yousuf Amin (P. W. 14) who was P. A. To the Managing Director of Hotel Mehran at the relevant time. His evidence is Exh.

19. He has proved the bills and the supporting vouchers (Exhs. 19/2 to 19/8) in respect of the stay of the Chief Engineer and his wife Wong Jiane for Rs.1,745.70, bills and vouchers (Exhs. 19/13 to 19/16), in respect of Captain Efstbathion for Rs. 757.10 and bills and vouchers (Exhs. 19/19 to 19/47) for Rs. 5,843.35 in respect of Captain Constantionos. He also produced photostat copy of registration card of Wong Bane Exh. 19/9 and photostat copy of registration card of Captain Constantionos (Exh. 19/48). So far as the claim for payment of Rs. 5,843.35 is concerned it is not in dispute. Mr. Mirza has however, disputed the payments of two amounts of Rs. 1,745.70 and Rs. 757.10. His objection is that the first payment has been made on account of stay of "Wong Jiane as the bills show her name but she was not a member of crew and no receipt has been produced for the pay--ment of bill of Rs.

51. 757.10. According to Mr. Mirza it must have been paid by Captain Efsthathion. So far as the objection to the claim of Rs. 1,745.70 is concerned, Mr. Kazi submitted that Yousuf Amin in his evidence has clearly stated that "it is the practice that before customer leaves the Hotel and if he has a guest, he signs the bill. Exh. 19/L was not signed by Wong Jiane but it was signed by his colleague who was staying with him". It is admitted position that Exh. 19/2, the bill and Exh. 19/3 to Exh. 19/8, the supporting vouchers, all have been signed by Schifito, the Chief Engineer. Taking evidence of Yousuf Amin into consideration it is not difficult to come to the conclusion that it was Schifito who was staying with Wong Jiane. It is in evidence that Wong Jiane is the wife of Schifito. Therefore, both must have stayed together in the Hotel. Under the circumstances, it is not possible to hold that the payment was not on account of stay of Schifito. The payment of this amount has been proved by the receipt Exh. 19/50 which is though in the -name of Wong Jiane, clearly refers to the plaintiffs and also gives the name of the ship Phoenix. In the receipt it is also mentioned that the payment has been made by Cheque No. G/B-7676202 drawn on Muslim Commercial Bank Limited by the firm of the plaintiffs Messrs International Shipping Agency.

52. I am therefore, of the opinion that the plaintiffs have' proved that they have paid the amount of this bill.

53. So far as the objection to the bill for Rs. 757.10 is concerned, it is admitted by Mr. Iqbal Kaxi that the plaintiffs have not produced any receipt for the payment of the amount of the bill. He, however, contended that since the plaintiffs had arranged the stay of Captain Efsthathion they are liable for the payment of the bill. He further pointed out that the bill (Exh. 19/10) is addressed to the plaintiffs and shows that the stay of the said person in the Hotel was on ship's account. Mr. Iqbal Kazi has not been able to point out from the evidence of plaintiff No. 1 that he has undertaken to pay the amount of this bill or that he is liable for the same. Thus in the absence of any evidence as to the payment of the bill by the plaintiffs or any evidence that the plaintiffs are personally liable for the payment of the same or that this bill is still outstanding, I hold that the plaintiffs are not entitled to claim the amount of this bill.

54. The amounts paid to Hotel de France and Hotel United are not disputed. Therefore, the plaintiffs are entitled to a total sum of Rs. 20,587.94 as detailed below :-- As regards the claim of Rs. 52,835.90 on account of food expenses there is no oral evidence in support of this claim except the statement of the plaintiffs that the disbursement account is true.

55. There is also no documentary evidence in support of this claim except two entries of Rs. 200 dated 13-1-1977 in (Exh. 37/139) and of Rs. 400 dated 15-1-1977 in (Exh. 37/138) as pointed out by Mr. Iqbal Kazi. In the absence of any supporting evidence I am not prepared to accept the bare words of the plaintiffs that the disbursement statement is true when the defendants' case is that the amounts mentioned therein are exaggerated and inflated and are false. The burden being on the plaintiffs he has failed to discharge the same except for the amount of Rs. 600 as aforesaid. I, therefore, allow the claim to the above extent.

56. The plaintiffs have claimed a sum of Rs. 141,452.71 in the Disbursement Account (Exh. 37/116) on account of Stevedoring charges. The plaintiffs in paragraphs 3 and 4 of the plaint have alleged that they amongst others engaged Messrs Dinshaw & Company Stevedores, who carried out the work of the aforesaid amount out of which they have paid a sum of Rs. 1,00,000 and the balance amount is due from defendants 1 to 3 and is payable to them.

57. The defendants in reply to the above allegations have stated in their written statement that they were not aware what work/services in fact were rendered by the stevedores and other persons mentioned therein. They have further stated that they were not aware if the plaintiffs have paid Rs.

58. 1,00,000 to them and if they did so it was at their own risks. They have further pleaded that a bare reference to the bill would show that the rates charged by them are fantastic and at least three times above the normal rates and the rates charged by them from others and the bill submitted alongwith the plaint is false and fictitious.

59. The plaintiffs in support of this claim examined Feroze H. Dinshaw, the Managing Director of Messrs Dinshaw & Company who produced a number of documents out of which the following documents need notice as according to the learned counsel for the parties they are the only material documents.

(1) Letter of appointment of Messrs Dinshaw & Company dated 27-11-1976 (Exh. 8/1). In this letter the said firm was appointed as stevedores with the hope that they would give best services for quickest possible loading/unloading operations at the most competitive rates.

(2) Letter dated 17-11-1976 (Exh. 8/2) written by Pioneer Shipping Agencies Limited defendant 4, addressed to the Deputy Conservator, Karachi Port Trust informing him of the arrival of s. a. Phoenix and requesting for allotment of a suitable berth.

(3) Bill dated 8-2-1977 (Exh. 8/3) for Rs. 1,41,452.71.

(4) Letter dated 18-11-1976 (Exh. 8/4) written by Messrs Dinshaw & Company addressed to the firm of the plaintiffs, International Shipping Agency, giving the rates for handling cargo ex-vessels under the agency of the plaintiffs.

(5) Receipt bearing Serial No. 26 dated 31-1-1977 (Exh. 8/5) of the Karachi Port Trust acknowledging the receipt of Rs. 4,285 which according to the parties are on account of Cranage charges.

(6) Receipt bearing Serial No. 33 dated 7-1-1977 (Exh. 8/6) issued by the Karachi Port Trust for Rs.

60. 2,609.12 showing the payment of the amount on account of cranage charges.

(7) Bill No. 19/ST dated 6-3-1975 Exh. 8/13) issued by Dinshaw & Company and addressed to Pioneer Shipping Company Limited, for Rs. 69,527.31 for stevedoring in respect of the vessel s. s. Dynamikos arrived on 10-2-75.

(8) Letter dated 21-2-1977 (Exh. 8/17) addressed to Messrs Dinshaw & Company by defendant 3 in which the complaint was made that the stowage of the cargo was not proper and the said firm had charged 3 times the rates compared to prevailing rates, and further stating as follows :---- "Now I refer to your so-called bill to the International Shipping Agency in which you have charged 3 times rates compared to prevailing rates. You will refer your own rates with your principals Pak Ocean and Pioneer Shipping which are on all inclusive basis Rs. 17.58 per ton discharged and Rs.

61. 13.58 per ton for loading less' or course usual adjustments rebates as are usually accepted by you.

62. Moreover you are aware as per established practice at this Port that all charges for working overside from abreast position for discharging or loading is fully recovered from the consignees and Shippers respectively unless relative additional freight is pre-agreed expressly. This practice is by both conference and non-conference line which is to your knowledge as you happen to be leading stevedores in Pakistan."

63. Under these circumstances, your maximum bill for discharging 700 tons and loading app. 2,800 tons Rice and Gen. Cargo on your prevailing rates should be as under;---- Rs.

1. Discharging 700 tons@ 17.5812,306

2. Loading 2,800 tons@ 13.5838,224 50,330

(a) LESS app. 2,300 tons Ripe op FOB payable by Shippers@ 11.00 per ton25,300 Net payable to you25,030

(b) LESS cargo still Balance in Barges more than 400 tons@ 13.58 per ton 5,432 Actual Balance 19,598 As against above figures your Bill for Rs. 1,41,000 is therefore false and baseless to your own knowledge. I sincerely wish, you had kept yourself above such unfruitful tactics.

64. You have fictitiously shown having received Rs. 1,00,000 from so-called Agents International Shipping Agency whose Captain Kazi today first confirmed paying you Rs. 65,000 and then `NIL' which all is partly on Shippers consignees a/c and partly on carriers a/c.

65. Thus you are liable to refund the entire amount as above for freight adjustment account through me or through my Agents Messrs Pioneer Shipping Agencies Limited, Karachi."

(9) Letter dated 22-1-1977 (Exh. 8/18) addressed by Messrs Dinshaw & Company to the Captain/Chief Officer, m. v. Phoenix informing him and requiring confirmation of the order of Captain Yousuf Kazi to load cargo of rice and general cargo on the deck of the vessel.

(10) Letter dated 11-6-1977 (Exh. 1/11) by Messrs Dinshaw & Company addressed to Pak Ocean Shipping Company Limited, enclosing there--with a supplementary bill for the period 11-1-1977 to date.

(11) Letter dated 22-12-1976 (Exh. 8/12) addressed by Messrs Dinshaw & Company to the Managing Director Pak Ocean Shipping Company Limited requesting them to pay Rs. 8 per discharged ton for 16,339 import tons as per list of the vessel mentioned therein and informing them that the final payment and accounts could be only settled after the stevedoring rates were revised due to the increase in stevedoring costs by reason of the D. L. B. Workers Union Agreement which came into effect from 1-7-1976.

66. The plaintiffs in support of the aforesaid claim examined as stated earlier Mr. Feroze Dinshaw who in material respect stated that he was appointed to carry out stevedoring work under the letter dated 27-11-1976 (Exh. 8/1) in respect of the vessel m. v. Phoenix. In respect of this appointment Pioneer Shipping Agencies Limited, had informed the Deputy Conservator through letter dated 17- I1-1976 (Exh. 8/2) as Captain Yousuf Kazi was not the licensed shipping agent and that his firm had carried out the loading and unloading of the cargo and shifted the cargo from hatchets to on board the ship and that he had .Submitted his bill (Exh. 8/3) for Rs. 1,41,452.71 out of which amount he had received Rs. 1,00,000 by three cheques mentioned in the bill and that the rates charged by him in the bill were not exorbitant as they were in accordance with the rates mentioned in (Exh.

67. 8/4). He further stated in his cross-examination that Captain Yousuf Kazi had asked for quotation on phone before he wrote the letter (Exh. 8/1) and that his firm did not submit their quotation of rates for stevedoring to Pioneer Shipping Agency Limited. He explained that Pioneer Shipping Agency did not ask for it. He denied the suggestion that according to the normal prevailing rates at the prelevant time the amount of the bill (Exh. 8/3) could not exceed Rs. 50,000. In answer to a Court's question he stated that he would have agreed to settle his bills at Rs. 1,20,000 as there was no agreement between him and the Master as to the rates.

68. Plaintiff in his deposition (Exh. 37) has stated that he had appointed Messrs Dinshaw & Company as stevedores for the ship and they first discharged the cargo and then loaded fresh cargo on the ship and he paid them Rs. 1,00,000 out of the amount of Rs. 1,41,452. He further stated that the ship discharged 700 tons of general cargo into the barges for trans--portation to wharf which is evidenced by the Tally Sheet (Exh. 8/12) and then 2,502 tons of export cargo was laded on the ship.

69. In his cross examination he admitted that the bills of loading issued in respect of the import cargo as well as export cargo were on Liner Terms and he produced a pro forma of the bill of lading containing the Liner Terms (Exb. 37/148). He has also admitted that he did not obtain any quotation in writing before entrusting the work of stevedoring to Messrs Dinshaw & Company and that after the receipt of the bill (Exh. 8/3) from the firm he did not verify the rates charged by other stevedores for similar work. He also admitted that according to the terms contained in the bill of lading on Liner Terms charges for loading and charges for taking off the cargo from the barges were to be borne by the consignees or shipper and that after the receipt of the cargo he did not ask the consignees or receiver of the cargo to pay these charges. In his cross-examination he denied the suggestion that the normal market stevedoring charges at the relevant time were Rs.

70. 17.50 per ton and that the bills submitted were highly exorbitant and exaggerated. In an answer to the Court's question he stated that the market rate at the relevant time fluctuated between Rs. 22 and Rs. 25 per dead weight ton.

71. On this point the evidence of defendant 3 is that on arrival in Karachi be bad a meeting with Captain Kazi who with regard to the stevedoring charges told him that they were about U. S. $ 2 -- per ton and that he did not mention that there were any labour charges. The witness further stated that the stevedoring charges have been inflated by almost 400 per cent and that the bills of lading were issued on liner terms. According to which the owner of the ship has to pay costs of one operation only namely, the discharge of the cargo from the 'ship outside whereas the plaintiffs have claimed for two operations, i.e. From the ship into the barges and then again from barges on to the wharf and the-rate on which the claim has been made for the discharge of the cargo is 500 per cent inflated. This witness does not appear to have been cross-examined on the aforesaid statement made by him. However, there was a suggestion made to him that he had no meeting with the plaintiff on 4th or 5th February 1977.

72. Messrs Dinshaw & Company in their bill (Exh. 8/3) have claimed a sum of Rs. 39,900 for discharge of 700 tons import cargo into the barges at the rate of Rs. 57 per ton and another amount of Rs.

73. 4,900 for receiving the said cargo into the barges at the rate of Rs. 7 per ton with a further sum of Rs.43,400 for re-discharging the said cargo ex-barges on to the wharf at the rate of Rs. 62 per ton.

74. Thus they have claimed Rs. 126 per ton in all.

75. They have also claimed Rs. 46,580 on account of loading of 2,329 tons of rice on board the vessel, at the rate of Rs. 20 per dead weight ton. They have also claimed a further sum of Rs. 4,888 on account of loading of 173 D. W. T. Equal to 208 metric ton of general cargo at the rate of Rs. 23.50 per metric ton.

76. The quantities of cargo discharged from the vessel or loaded on board the vessel are not in dispute. The charges of Rs. 46,580 and Rs. 4,888 claimed on account of loading of 2,329 tons of rice and 209 m. t. Of general cargo are also not disputed by Mr. A. H. Mirza.

77. However, Mr. A. H. Mirza Advocate has raised two-fold objections to the amount claimed on account of stevedoring charges for 700 tons of cargo discharged from the ship. The first objection is that the rates are highly inflated and the second is that the stevedoring charges have been claimed for two operations, namely, for discharge of the cargo into the barges and from barges on to the wharf, while, in view of the terms of the bill of lading, charges for discharge of the cargo from the barges on to the wharf were to be borne by the consignee or the receiver of the goods. So far as the first objection is concerned, in reply, Mr. Kazi has submitted that the charges are not inflated and in regard to the second objection he bad submitted no such plain plea has been taken in the written statement. He has further submitted that defendant 3 had made no grievance on this account earlier. In support of this submission he referred to defendant 3's letter dated 4-2-1977 (Exh. 7/115) which is addressed to the Pioneer Shipping Agencies Limited, wherein he complained about the misrepresentation made by the plaintiff but wherein he did not make any such complaint. Mr. Kazi referred to letter of the Advocate of defendants 1 to 3 dated 9-2-1977 (Exh. 38/2) wherein also no such objection was raised.

78. Mr. Iqbal Kazi also relied on Siddik Muhammad Shah v. Mst. Saran and another (AIR1930PC57) wherein it was held that no amount of evidence can be looked into upon a plea which eras never put forward.

79. Mr. Feroze Dinshaw P. W. 3 who came in the witness-box produced a letter dated 18-11-1976 (Exh.

80. 8/4) containing the rates and stated that the rates charged by him were in accordance with the rates contained in (Exh. 8/4) thereby impliedly suggesting that the rates mentioned in the bill were agreed rates. However, it will be seen that Messrs Dinshaw & Company were appointed to carry out stevedoring work on 27-11-1976 if they bad sent the letter (Exh. 8/4) to the plaintiffs (Exh. 8/1) that they (Messrs Dinshaw & Company) would charge most competitive rates. They would have rather referred to the letter of Dinshaw & Company (Exh. 8/4). Further, plaintiff I in his cross-examination admitted that before entrusting stevedoring work to Messrs Dinshaw & Company he did not obtain any quotation, therefore, there were no agreed rates and there is no question of paying the bills as claimed by Messrs Dinshaw & Company. The stevedores would therefore, be entitled to charge according to the market rates, Messrs Dinshaw & Company have claimed for discharge of cargo of 700 tons of import cargo a total sum of Rs. 88,200 as detailed below :-- Rs.

81. "(1) Cost of discharging 700 tons Import cargo into barges @ Rs. 57 per ton 39,900.00

(2) Receiving 700 tons Import cargo into barges @ Rs. 7 per ton 4,900.00

(3) Re-discharging 700 tons Import cargo ex-barges into into wharf @ Rs. 62 per ton 43,400.00 It will be seen from the above that they have claimed the charges on account of three operations.

82. The first being discharge of the cargo into the barges at the rate of Rs. 57 per ton, the second receiving cargo into barges at Rs.. 7 per ton and the third for re-discharging the cargo from barges on to the wharf at Rs. 62 per ton, thus claiming Rs. 126 per ton, while according to plaintiff No. 1's own admission the prevailing market rate had fluctuated between Rs. 22 to Rs. 25 per ton which must be for the first operation. Moreover, Messrs Dinshaw & Company in their bills dated 31-5-1977 (Exh.

83. 8/7) addressed to the Pak Ocean Shipping Company Limited, have claimed stevedoring charges for discharge of 3314 F. Tons import cargo at the rate of Rs. 27 per F. Ton from m. v. Stefan Okrezja which had arrived on 18-1-1977 much after the arrival of s. s. Phoenix.

84. I, therefore, find support for the statement made by plaintiff 1 that the stevedoring charges for discharging the imported cargo at the relevant time had fluctuated between Rs. 22 and Rs. 25 per ton. Although in the bill (Exh. 8/3) stevedoring charges for three operations have been claimed but it was in unambiguous terms admitted by plaintiff 1 that in respect of bills of lading on liner terms for import as well as export cargo the consignees or receiver or the shippers of the cargo pay the charges for taking out the same from barges on to the wharf. Further, the stevedores have claimed for three operations while actually there are only two operations namely, receiving the cargo into the barges and discharging the same from barges on the wharf. Therefore, the ship would be liable only for one operation. It has also to be noticed that the stevedors admitted in reply to the Court's question that he would have reduced the bill to Rs.1,20,000. If the charges had been agreed between them and the plaintiffs then where was the question of reducing the bill from Rs. 1,41,452.71 to Rs. 1,20,000. The explanation that he would have reduced the bill because there was no agreement between him and the Master of the ship is quite unsatisfactory for, if the plaintiffs had agreed to pay the charges at the rates mentioned in Exh. 8/4 then the defendants would have been bound to pay the same except in case of fraud or collusion. Significantly the stevedors have claimed in the bill in question Rs. 23.50 per metric ton for export general cargo for loading the same on board the ship. Therefore, relying on the maximum rate of Rs. 25 per ton as admitted by plaintiff I, I find that the amount of stevedoring charges on 700 tons of import cargo will come to Rs. 17,500.

85. So far as the export cargo is concerned there is no dispute and the plaintiffs are entitled to full amount claimed by Messrs Dinshaw & Company. Therefore, the total liability of defendants 1 to 3 on account of stevedoring would be Rs. 68,968. Therefore, if the plaintiffs have paid rupees one lac to the stevedores then excess amount paid by the plaintiffs can--not be considered to be on account of defendants 1 to 3.

86. As regards the objection of Mr. Kazi that no such plea has been raised by defendants 1 to 3 in their written statement and therefore, the Court need not consider it, it would suffice to say that the said defendants have not only in their written statement but also in the correspondence have B repeatedly stated that the charges claimed on various accounts including the one under consideration were highly inflated and/or false. In view of the above plea, the burden of proving that defendants 1 to 3 are liable to pay charges as claimed was squarely on the plaintiffs. With regard to the admission of plaintiff that the liability for payment of hire charges of the barges for second operation when bills of lading were issued on Liner Terms was that of the shippers or consignees or receiving of the cargo, Mr. Kazi has submitted that the admission of plaintiff l was incorrect.

87. I pointedly asked Mr. Kazi if it was so, he could support the submission by referring to any commentary on shipping laws or practice but he was unable to do so.

88. The case cited by the learned counsel is therefore, distinguishable.

89. The plaintiffs have claimed in the disbursement account (Exh. 37/116) at Serial Nos. I 1 and 23 therein two amounts of Rs. 29,000 and Rs. 15,000 on account of telex charges payable to Trans-world Shipping Agencies Limited and Pioneer Shipping Agencies Limited. It is admitted position that the telexes were exchanged between the parties as a number of telexes (Exhs. 37/39 to 37/68 and Exhs.

90. 37/107 to 37/114) have been produced in this case. However, the objection of Mr. Mirza is that the charges are highly inflated and plaintiffs have not produced any bills and receipts in support of the claims and they have not examined any witnesses. It is admitted by Mr. Kazi that the plaintiffs have not led any evidence oral or documentary in support of this claim. He however, submitted that the plaintiffs in paragraph 7 of the plaint have stated that the disbursement account is true and defendants 1 to 3 in their written statements have not specifically denied the claims. It is true that the defendants had not specifically denied these claims in their written statements but they in paragraph 9 in reply to the contents of paragraph 7 of the plaint have denied that the disbursement account is true. In view of this denial it was necessary for the plaintiffs to have produced at least bills for the amounts claimed and receipt for the payments, if any, made on this account. Nonetheless, Captain Zourdos, defendant No. 2 in his deposition has stated that the claim on account of telex charges in the sum of Rs. 29,000 is inflated by almost 100 % as it would be Rs.

91. 15,000. The objection of Mr. Kazi to this statement is that it is conjectural in nature and could not be a correct estimate. It may be so but in the absence of any definite evidence this is the only piece of evidence on which I can rely, otherwise, I would myself be entering into the realm of conjectures. It is to be noted that Mr. Iqbal Kazi has not been able to point any cross-examination of the witness on this point. I have already pointed out that even the bill for the amount of Rs. 29,000 allegedly payable to Transworld Shipping Agencies Limited has not been produced. No details are given regarding other expenses. The plaintiffs have not produced any bills, receipts or Voucher on account thereof and even no evidence has been led. I, therefore, hold that the plaintiffs have been able to establish their claim to the extent of Rs. 15,000 only on admission of defendants out of the amount of Rs. 29,000.

92. As regards the claim for Rs. 15,000 allegedly paid to Pioneer Shipping Agencies Limited, Mr. Iqbal Kazi argued that Captain Zourdos while denying the liability of Rs. 29,000 and admitting the liability to the extent of Rs. 15,000 on account of telex charges, has not denied the claim of Rs. 15,000. But this omission on his part would not make the plaintiffs entitled to the full amount of Rs. 15,000 as they have produced receipt dated 22-1-1977 (Exh. 37/158) for Rs. 8,000 only and have failed to produce any other receipt or evidence for the rest of the amount.

93. The plaintiffs in the disbursement statement (Exh. 37/116) has claimed a sum of Rs. 3,320 spent by them on the medical treatment of the members of the crew of the ship. The plaintiffs in support of this claim examined Dr. M. Farooqui, P. W. 12, whose evidence is Exh.

17. He stated that he had examined the crew of the ship Phoenix when they visited him during the period commencing from 26-1-1976 to 27-1-1977 and had submitted three bills (Exhs. 17/2 to 17/4) for a total amount of Rs.

94. 3,200. He further stated that he had submitted another bill (Exh. 17/5) for the charges on account of bill of Saeed Clinic in the sum of Rs.

120. He also stated that he had received the amount of the four bills.

95. The bills (Exhs. 17/2 to 17/4) contain the details of the charges and the name of the persons who were treated by Dr. Farooqui. It is not denied that the persons whose names are mentioned in the bills (Exhs. 17/2 to 17/4) were the members of the crew. However, the objection of Mr. Mirza was that the charges mentioned in the bills were highly exaggerated. He relied on another bill (Exh. 37/146) of Dr. Farooqui which shows that Dr. Farooqui had charged Rs. 5 from another member of the crew who had gone to him for treatment. Mr. Mirza drawing support from this bill argued that Dr. Farooqui's normal charges were Rs. 15 per visit per patient but this bill was not put to the doctor when he came in the witness-box and in the absence of his explanation it cannot be said under what circumstances he had charged Rs. 15 from one of the members of the crew. Moreover, the doctor had made a definite statement that he had received the payment of the bills. Therefore, it is difficult to hold otherwise particularly, in the absence of any suggestion to the doctor that the payment received by him was not wholly on account of treatment of the members of the crew.

96. Nonetheless, the objection of Mr. Mirza with regard to the claim of Rs. 120 covered by the bill (Exh.

97. 17/5) has some substance in it as the bill is not in respect of Phoenix and nor does it show the name of any members of the crew and there is no evidence whatsoever, with regard to the claim that some members of the crew were treated at Saeed Clinic. Mr. Iqbal Kazi. Advocate has not been able to point out that names mentioned in the bill of Saeed Clinic (Exh. 17/5) were members of the crew of the slip He however, relied on the statement of plaintiff that (Exhs. 17/2 & 17/5) were the bills for the treatment of the members of the crew. But the evidence of plaintiff 1 does not help him in this regard as he did not state specifically that two persons mentioned in (Exh. 17/5) were the members of the crew of the ship. There is no other evidence on record in this regard. I may also record another objection of Mr. Mirza with regard to the charges made by Dr. Farooqui which was that for 30 visits of the members of the crew the doctor charged Rs. 100 per visit and in respect of 4 visits he charged only Rs. 50 per visit and he therefore, argued that charges of the doctor are inflated at least to the extent of 100 per cent. In respect of 30 visits but Dr. Farooqui in his evidence explained that charges of Rs. 100 per visit included medicines and injunctions.

98. I, therefore hold that the plaintiffs have established their claim for Rs. 3,200 only.

99. The plaintiffs have claimed a sum of Rs. 4.1,669 on account of supply of 50 tons of bunker oil which is Item No. 13 in the statement of disbursement (Exh. 37/116) and another sum of Rs. 22,232 which is Item No. 22 in the disbursement statement. On account of payment made to Pioneer Shipping Agencies Limited on account of 24 tons bunker oil supplied by Premier Oil Company Limited to the ship. Besides, Mr. Iqbal Kazi has claimed another sum of Rs. 42,644 which has not been included in the disbursement statement (Exh. 37/116) or in the amount claimed in the suit but which, according to Mr. Iqbal Kazi, was paid by the plaintiffs to Pioneer Shipping Agencies Limited, on account of 50 tons of bunker oil supplied by Premier Oil Company Limited to the ship. So far as the claim for Rs.

100. 41,669 on- account of 50 tons of bunker oil supplied by Pakistan Burmah-Shell Limited to the ship is concerned, the supply of the bunker oil to the ship was ultimately admitted by defendants 1 to 3.

101. However, Pakistan Burmah-Shell Limited have filed a suit, being Suit No. 193177 in this Court in its Admiralty Jurisdiction for recovery of Rs. 39,734 on account of 50 tons of bunker oil supplied to the ship. Pakistan Burmah-Shell have joined in the suit the firm of the plaintiffs and all the defendants to this suit as parties to that suit. Plaintiff 1 in his cross-examination in this suit has submitted that 50 tons of bunker oil was supplied by Pakistan Burmah-Shell Limited to the ship and that payment has not been made and Pakistan Burmah-Shell Limited, have filed a suit to which I have referred to above. Plaintiffs have claimed for 50 tons of bunker oil Rs. 4,069 while Pakistan Burmah-Shell Limited have claimed from the firm of the plaintiffs and other defendants in their suit Rs. 39,734 on account of 50 tons of bunker oil supplied by them and on account of other charges. Plaintiff 1 explained in his cross---examination that the difference reflects cartage and other charges. From the evidences and other circumstances, it is clear that the plaintiffs have not so far paid this amount to Pakistan Burmah-Shell Limited. Since the defendants have admitted this claim, I allow the same.

102. Now, I take up the claim made at the stage of arguments by Mr. Kazi that the price of 75 tons of bunker oil supplied by Premier Oil Company to the ship was made by the plaintiffs to Pioneer Shipping Agencies Limited, in the two sums of Rs. 42,744 and Rs. 22,232.40, the first amount presumably, being for 50 tons of bunker oil and the second amount being for supply of 25 tons of bunker oil. The objection of Mr. Mirza, learned counsel for defendants 1 to 3 is that no claim whatsoever, for Rs. 42,744 has been made in the disbursement account and there are no pleadings with regard to this claim and therefore for this reason alone it cannot be allowed. So far as the claim of Rs. 22,232.40 is concerned, the objection of Mr. Mirza as well as Mr. A. G. Siddiqui, the learned counsel for defendant 5 is that the plaintiffs have failed to prove that they made payment of this amount to Pioneer Shipping Agencies Limited. Mr. Kazi admitted that the plaintiffs have not produced any receipt of Pioneer Shipping Agencies Limited for the two payments nor did plaintiff 1 state in his evidence how the payment was made whether it was made by cheques or in cash. No payment by cheque has been alleged or proved. I asked Mr. Kazi to point out from the pages of the cash book (Exhs. 37/117 to 37/141) produced by the plaintiffs whether these payments are shown therein. He frankly admitted that they have not been shown therein. Therefore, even the account book of the plaintiffs does not show payment of these amounts to Pioneer Shipping Agencies Limited. He, however, submitted that payment of 75 tons of bunker oil to be supplied by Premier Company to the ship was to be made from abroad as required by the Foreign Exchange Regulations, but the plaintiffs made these payments to Pioneer Shipping Agencies Limited out of books to avoid the consequence of the breach of the Foreign Exchange Regulations. He argued that unless the defendants or any of them had come forward to claim that they or he had made these payments the statement of plaintiff 1 that he made the payments on account of bunker oil of 75 tons should be accepted and for the same reason it was not possible to have receipt of these payments from Pioneer Shipping Agencies Limited. However, Abdus Salam, P. W. 13 in his deposition (Exh. 18) has in unambiguous terms stated that the payment for 12,000 gallons of oil which is equivalent to 50 tons of oil was received in foreign currency except Rs. 475 which was received in Pakistan Currency for the charges incurred locally. In the cross---examination he admitted that it is the normal practice that supplies to foreign ships are made on receipt of payment from abroad from the owners or the charterers of the ship and the same practice was followed in this case.

103. From the evidence of the plaintiffs' ownwitness, therefore, it is clear that the payments were received from abroad for the total quantity of 75 tons of bunker oil supplied by Premier Oil Company Limited, through the agency of Pioneer Shipping Agencies Ltd., to the ship. It is not the case of the plaintiffs that they had made arrangement for the payment of the foreign exchange from the abroad. The plaintiffs' case is that they had made arrangement through Pioneer Shipping Agencies Limited but they have not examined any person from Pioneer Shipping Agencies Limited nor have they come forward to support the claim of plaintiffs. Further it has not been so pleaded in the plaint, therefore, in the absence of any pleadings and satisfactory evidence I cannot allow the claim for Rs. 42,744. Further, if plaintiffs could include the amount of Rs. 22,232 in the disbursement statement on account of alleged payment made to Pioneer Shipping Agencies for the supply of 25 tons of bunker I see no reason why they could not include the amount of Rs. 42,744 in the disbursement statement and in the suit amount. Admittedly the payment for 75 tons of bunker supplied to the ship by the Premier Oil Company Limited, was made in foreign exchange from abroad. If the plaintiffs had claimed in the plaint that they arranged for this payment through Pioneer Shipping Agencies Limited, the defendants 2 and 3 would have given their reply to the claim. Moreover, no amount of evidence in respect of a claim which is not pleaded can be looked into. As regards the claim of Rs. 22,232, it is not possible to accept this claim also in the absence of any evidence except the bare statement of the plaintiffs, particularly when no entry for this amount has been made in the cash book as admitted by Mr. Iqbal Kazi.

104. Therefore, under items Nos. 13 and 22, the plaintiffs are entitled to Rs. 41,669.

105. The plaintiffs have claimed a sum of Rs. 5,500 on account of Bonded Stoves in disbursement account (Exh. 37/116) but they have not led any evidence oral or documentary in support of this claim. Even the plaintiff has not said a word specifically about this claim in his evidence.

106. Accordingly, I find that the plaintiffs have failed to prove this claim.

107. The plaintiffs have claimed a sum of Rs. 1,81,273 under Disbursement Account (Exh. 37/116) on account of the lighterage work carried out by the Sind Lighterage Company.

108. There are endorsements on Exhs. 19/2, 10/3 and 10/4 showing payment of Rs. 40,000, Rs. 5,000 and Rs. 20,000 respectively by cheques whose numbers arc not mentioned. The witness Muhammad Ikramuddin stated that he had received a total sum of Rs. 65,000 from the plaintiffs out of the total amount of Rs. 1,81,273. He further stated that he had submitted bills for detention of barges for 22 days loaded with rice. He admitted that the charges include the wages of the labourers who carried the loading of cargo into the barges and then on to the ship in respect of export cargo. He has also stated that he charged Rs. 27,000 on account of labour charges. He admitted in his cross- examination that he had not supervised the work personally and could not say whether 700 tons cargo could be carried in two barges. He admitted that the stevedores received the cargo from the ship into the barges and unloaded the same on the wharf at their expenses. He denied the suggestions that 3 barges were not required for carrying the cargo from the ship to the warf and that the bill Exh. 10/1 is exaggerated and inflated. He has admitted that his firm had charged Rs.

109. 45,193 on account of labour charges for handling the cargo in the barges but he had incurred expenses of Rs. 31,771 as he has produced vouchers for that amount (Exh. 10/9 to Exh. 10/46). He, however, denied the suggestion that the vouchers were bogus. He admitted that he had no memorandum or record in respect of Exh. 10/3. He also admitted that there was no written agreement between his firm and the plaintiffs as to the rates to be charged for lighterage work but explained that he had oral agreement with the plaintiff. He denied the suggestion made in cross- examination that he had agreed to reduce his bills by Rs. 80,000 in a meeting attended in the office of Mr. Wasiuddin where Capt. Zourdos and Mr. Siddiq were present and the agreement was reached in their presence. He also denied the suggestions that the charges were exaggerated and were prepared in collusion with Capt. Kazi. He denied the further suggestions that the charges for hiring barges are usually paid by the shippers or the consignee.

110. On this point the evidence of the plaintiffs is that "I see (Exhs. 10/1 to 10/4). These are bills of lighterage work carried on by Sind Lighterage Company. The total amount of these bills comes to Rs. 1,81,273. These charges are in respect of cargo discharged from the vessel as well as cargo loaded on board the vessel. According to the terms of the bill of lading on liner terms, contained in (Exh. 37/148) these charges were to be borne by the consignees or the suppliers. It is incorrect that the cargo booked for export was on F. O. B. Terms. It was on liner terms. I have made a total payment of Rs. 65,000 to Sind Lighterage Company as against their total claim of Rs. 1,81,273. I did not obtain any authorisation from the Master of the ship or from the owners for these payments."

111. From the above admission it is clear that the charges for lighterage work were to be borne by the consignees or the receivers of the import cargo and the shippers of the export cargo and that the plaintiffs had not obtained any authorisation from the owners for making payment of Rs. 65,000 to the Sind Lighterage Company. It was argued by Mr. Iqbal Qazi that the admission of the plaintiffs is incorrect because he had denied the suggestion that the cargo booked for export was on F. O. B.

112. Terms and therefore, the admission of the plaintiffs that when a bill of lading is issued on finer terms the liability to pay the lighterage charges is that of the shipper or the consignee is inconsistent and therefore must be incorrect. If the plaintiff had made an incorrect statement he was given further opportunity by the learned counsel for the defendants to correct himself as when he asked from plaintiff 1 whether he had collected the charges from the shippers he simply said that he had not. Even at that stage he did not correct himself if he had earlier made an incorrect statement. In any case, it was open to the plaintiffs to lead evidence to show that when a bill of lading is issued on liner terms the liability to pay lighterage charges is that of the ship or its owners but no such evidence has been led. As already pointed out by me while dealing with the question of liability on account of stevedoring I had pointedly asked Mr. Iqbal Kazi to refer to any commentary on shipping practice or shipping laws but he was unable to do so.

113. The plaintiffs have in the disbursement statement (Exh. 37/116) claimed a sum of Rs. 1,42,461 on account of repairs to the ship carried out by Central Shipwright Contractors. In support of this claim the plaintiffs examined Ahmed Khan, P. W. 1 whose evidence is Exh.

6. He is the partner of the firm which carried out the repairs. The amount of Rs. 1,42,461 is the total of the four bills as detailed below :-

(i) Bill No. 12/77 dated 31-1-1977 for Rs. 1,32,461 (Exh. 6/2) on account of repairs.

(ii) Bill No. 12-A/77 dated 7-2-1977 for its. 1,051 (Exh. 6/4) on account of supply of motor oil, cylinder oil, cotton vest, purpose grease and handling charges.

(iii) Bill No. 12-11/77 dated 7-2-1977 for Rs. 10,038 (Exh. 6/5) for disturbance and wastage of the labour for 21 days due to crew mutiny and strike of board the vessel on three different times at the rate of Rs. 478 per day.

(iv) Bill No. 12-C/77 dated 7-2-1977 for Rs. 1,704.30 (Exh. 6/10) on account of supplies of Buraheen Gas, Safety Lamps, Battery Cells, etc. It may however, be noted that the total of the above-mentioned four bills comes to Rs. 1,45,254.30.

114. It appears that the amount of two bills of Rs. 1,051 and Rs. 1,704.30 (Exhs. 6/4 and 6/10) were not included in the original claim.

115. Although the defendants seriously dispute the claim for a number of items of repairs allegedly carried out by Central Shipwright Contractors as according to them the entries in the log book show repairs only to boilers, auxiliary machinery, cleaning of the boilers, feed pipe, winches, and main gear, but, in my view, the question stands completely answered by the certificate dated 21-1- 1977 (Exh. 6/3) which was admittedly issued by the Chief Engineer of the Ship namely, Schifitto (Exh.

116. 6/3) and by the letter of the Chief Engineer dated 21-2-1977 addressed to defendant No. 3 wherein he stated that the repairs as per list were carried out for which he had already signed. This obviously, has reference to the certificate (Exh. 6/3). Mr. A. H. Mirza's objection to the certificate however, is that it has not been signed by the master of the ship but this objection has no force as Mr. Mirza admits that there is evidence that the repairs were carried out under the supervision of Chief Engineer.

117. However, there is serious dispute with regard to the amount claimed on account of repairs. It is admitted position that there is no agreement written or otherwise as to the rates which the repairers are entitled to charge. It is in evidence of Ahmad Khan, P. W. 1 that he purchased various articles such as nuts and bolts for total amount of Rs. 33,814.64 as detailed in the statement (Exh.

118. 6/11) which is supported by cash memos and vouchers (Exhs. 6/11/1 to 6/11/113). It is also in evidence of the said witness that his total cost of repairs which included labour charges was Rs. 64,000. He almost stated that the charges mentioned by them in (Exh. 6/12), I e. The bill for Rs. 1,32,461 are on their own basis and the basis is :--- "On actual costs we charged 200 % overhead which covered our maintenance of the machinery, office maintenance, office rent, workshop maintenance and the salary of the staff employed in the office."

119. Plaintiff No. 1 has stated, that the plaintiffs had engaged Central Shipwright Contractors for carr5ring out repairs to the ship which were carried out on the recommendation of ship surveyors, namely n. v. Class and that the repairs work was carried out under the supervision of the Chief Engineer who had acknowledged the same in the certificate (Exh. 6/3). He further stated that the total amount for various supplies payable to Shipwright Contractors was Rs. 1,45,254.04 out of which he had paid them Rs. 15,000 only and the balance was still payable to them. According to the defendants the charges for repairs should not exceed Rs. 40,000. Regarding this claim Capt.

120. Zourdos in his evidence (Exh. 38) has stated that he went into the engine room and found that some items out of the items mentioned in the list (Exh. 6/12) were actually carried out while other items of repairs mentioned therein were not carried out anal that the Chief Engineer knew little English and he did not know what is written in (Exh. 6/3) and that the value of the repairs carried out to the ship were about 3,800 U. S. Dollars in the International market while it is cheaper in Karachi and it should be less. The Chief Engineer in his letter (Exh. 38/4) also while admitting that repairs as per list (Exh. 6/3) were carried out has estimated the value of the same at 3,800 U. S. Dollars. However, it is not possible to accept the evidence of Capt. Zourdos that certain items of repairs mentioned in (Exh. 6/3) were not carried out and the Chief Engineer signed the same without knowing its contents as he had no knowledge of English for the simple reason that in the letter (Exh. 38/4) he has clearly accepted that repairs as per list (Exh. 6/3) were carried out. As regards the value of repairs there is a vast difference. According to the plaintiffs and Central Shipwright Contractors it was of Rs. 1,32,461 while according to the defendants it was only of Rs.

121. 38,000.

122. Mr. Mirza submitted that the value of the repairs could not exceed in any case Rs. 40,000 as S. Kassamali & Co. Were prepared to carry out the same for that amount as mentioned in their letter dated 7-12-1976 (Exh. 38/5). But Kassamali & Company have not been examined in support of this stand.

123. However, in the absence of any agreement as to charges for the repairs, the contractors are entitled only reasonable charges. What will be reasonable charges depends on various factors.

124. However, I need not go into them as any finding on this question will not be binding on the contractors as they are not a party to the suit either as co-plaintiffs or as defendants. The admitted position is that the repairs have been carried out to the ship and it is the liability of the ship or its owners. The plaintiffs have paid only Rs. 15,000 out of the amount claimed by the Contractors.

125. Therefore, whatever amount the contractors are entitled has to be decided between them and defendants 1 to 3 or is to be adjudicated in the suit between them. The plaintiffs can claim only Rs.

126. 15,000 in this suit for this amount cannot be disputed as, in any case, admittedly the liability of the ship exceeds this amount. Mr. Lqbal Kazi submits that if the plaintiffs are allowed only Rs. 15,000 under this head they will be entitled to indemnity from Defendants 1 to 3 for any claim which may be made by the contractors on this account.

127. Now, I would deal with the claims contained in (Exhs. 6/4, 6/5 and 6/10). So far as the claim Rs. 1,051 is concerned no documentary evidence in support of the alleged supplies has been produced. It is difficult to accept the statement of P. W. 1 with regard to supply covered by this bill in the absence of any order signed by the master of the ship or any writing acknowledging the delivery of the articles mentioned in the bill, more so when the amount of this bill was not originally included in the claim. Moreover, the plaintiffs have not made payment of the bill and any finding given with regard to this bill would not be conclusive in the absence of the contractors.

128. As regards the claim of Rs. 10,038 contained in (Exh. 6/5) there is no evidence that there was disturbance and wastage of labour for 21 days. However the Log Book produced by the Capt.

129. Zourdos and the relevant entries contained in (Exh. 38/17) show that there were stoppage of work for three days on 20-12-1976, 21-12-1976 and 23-12-1976. There is no other evidence in support of the claim that the work was stopped for 21 days or any labourer or workman was kept idle on account of mutiny on board the ship. Mr. Iqbal Kazi pointed out to the agreement between the plaintiffs and the members of the crew dated 23-12-1976 (Exh. 37/144) whereby the parties to the agreement agreed that they would keep calm on board the ship and would allow calm operation of cargo work and engine repairing. But this agreement does not state or prove that the repair work was stopped for 21 days or that any labourer or workmen employed was kept without any work for all those days. Further, it has not been stated as to how many people were employed and how much each of them was paid. In any case, no conclusive finding can be given in the absence of the contractors.

130. Admittedly the plaintiffs have not paid the amount of this bill. Even if they had paid the question would have remained to be decided whether the payment was proper.

131. As regards the claim covered by the bill (Exh. 6/10) for Rs. 1,704 it is supported by three certificates (Exhs. 6/6 to 6/8) issued by the Chief Engineer certifying the receipt of articles mentioned therein.

132. The submission of Mr. A. H. Mirza with regard to these certificates is that some blank forms signed by the Chief Engineer were left with the plaintiffs and they have utilized the same as after the writing in all the three certificate there is a perpendicular line in-between the writing and the signatures. However, this submission lacks foundation. Firstly, there is no evidence that any blank forms signed by the Chief Engineer were left with the plaintiffs. Even if it was so there is no explanation as to why such forms were signed in blank. Therefore, the supplies to the ship covered by this bill have been proved. Admittedly no payment for this bill has been made by the plaintiffs.

133. Therefore, they are not entitled to claim the same.

134. The plaintiffs have claimed a sum of Rs. 35,000 on account of miscellaneous expenses. In support of this claim they have however, filed only a bill of Kassamali & Co. For Rs. 3,497 (Exh. 24) on account of wages and overtime paid to labourers and serang. This bill was brought on record as the same was admitted by the learned Advocate for defendants 1 to 3. Mr. Kazi however agrees that there is no other oral or documentary evidence in support of the miscellaneous expenses other than those mentioned in Exh.

24. However, Mr. Kazi contends that there could not be any receipt for miscellaneous ex--penses and some miscellaneous expenses must have been incurred in the handling of the vessel which brought 700 tons of import cargo and on which more than 2,500 ton export cargo was loaded. I would have allowed this claim, if Mr. Kazi could have shown some entries in the account (Exh. 37/117) but he has not been able to point out any entries showing any payment on account of miscellaneous expenses. I, therefore, hold that the plaintiffs have proved their claim under this head only to the extent of Rs. 6,497.

135. The plaintiffs have claimed in the disbursement statement (Exh. 37/116) a sum of Rs. 2,27,888.77 on account of cash advances to Master and other payments to crew. The details of the claim are as follows :---

(1) Payments to the Master and the members of the crewRs. under (Exbs. 37/4 to 37/15) 79,040.00.

(2) Payments to the Master and the crew under (Exhs. 37/16 to 37/21) 28,800.00.

(3) Payments to Pakistani crew and as well as Foreign crew under (Exhs. 37/22 to 37/38) 8,262.00.

(4) Payments made to the crew on account of wages under (Fxhs. 37/71 to 37/83) 98,222.80.

(5) Payments of wages to local crew under (Exhs. 37/84 to 37 91)5450.00.

(6) Payment made to Salma Ragab and Capt. Tisaras under (Exhs. 37/103 to 37/105) 2,075.00.

(7) Repatriation expenses of the crew claimed under (Exhs. 12/1 and 13/1) 67,560.00.

136. It will be seen that plaintiffs have now claimed a total sum of Rs. 2,89,409.80 on account of the above.

137. Now, taking up the first item for Rs. 79,040. Mr. Mirza admits the claim to the extent of Its. 9,040. His stand is that in the receipt (Exh. 37/5) dated 20th November, 1976 the figure of Rs. 3,000 has been changed to Rs. 73,000 by inserting the figure of 7 in-between the words Rs. And 3. He has supported his stand by pointing out that in the telex dated 26-11-1976 (Exh. 39), the plaintiffs have stated that they had already given Rs. 9,040 to the crew and the Master upto that date and sought advice from Capt. Zourdos, defendant 3, whether they should give some money to the crew if he felt giving more money. In this telex plaintiff has further stated that "Greek Crew was then in the hotel and according to the Master-Phoenix their tickets were adjusted in salary". The argument of Mr. Mirza is that if the plaintiff had given a sum of Rs. 73,000 to the Master under (Exh. 37/5) then in the telex dated 26-11-1976 he would have mentioned the total amount of Rs. 79,040 as the receipt (Exh. 37/5) is dated 20-11-1976 and remaining amount of Rs. 9,040 was paid under (Exh. 37/4 and Exbs. 37/6 to 37/15) between 22nd November and 26th November, 1976. In reply Mr. Iqbal Kazi submitted that there is no allegation that any voucher of Rs. 3,000 was signed by the Master and there is no evidence that the figure of 7 in (Exh. 37/5) has been interpolated. He further submitted that there is no evidence that any space was left blank in-between the words Rs. And the figure of 3 in (Exh.

138. 37/5). He further argued that the Master would not have signed the receipt if there was any blank space between the word Rs. And the figure of 3C00 for he would know that any insertion therein would increase his liability and consequently of the owners of the vessel. Mr. Mirza further argued that Master was in need of more money as is evident from the telex dated 23-11-1976 (Exh.37/112) sent by the plaintiffs to defendant No. 3 where it is mentioned that "Master Phoenix wants Rs. 50,000 Pakistan pls. Confirm".

139. On this point the plaintiff has stated in his cross-examination as follows;---- "I see my telex dated 26-11-1976 addressed to defendant No 2. It correctly states 'I have already given Rs. 9,040 to crew and Master upto today.' I see (Exhs. 37/4 to 37/ 15). These vouchers bear the dates between 22nd November and 26th November, 1976. The total amount of these vouchers comes to Rs. 79,040. It is incorrect that the figure of 'T has been added before figure of '3,000' in (Exh. 37/5). But it is correct that figure of '7' the total of all the vouchers would come to Rs. 9,040."

140. Defendant No. 3 who came in the witness-Box stated that according to his correspondence the amount claimed to have been paid to the Master of ship was incorrect. The amount given to Master was Rs. 3,000 but the figure of 7 was added before the figure of 3,000 to make it Rs. 73,000.

141. No money was paid to the crew. Mr. Iqbal Kazi submitted that the witness has not produced any correspondence in this regard and the witness was not here at the relevant time, therefore, he could not know that the Master had received only Rs. 3,000 and not Rs. 73,000.

142. It is significant that the amount of Rs. 73,000 is written in the receipt only in figures and not in words, therefore, the possibility of inserting the figure of '7' by changing the amount of '3,000' into '73000' cannot be easily ruled out. If the plaintiffs had paid the Master under' Exh. 37/5 a sum of Rs. 73,000 on 20-11-1976 and not Rs. 3,000 then they would have mentioned in the telex (Exh. 39) the amount of Rs. 79,040 on 26-11-1976 which was sent to defendant 2 and not Rs. 9,040 as the amounts paid between 26-11-1976 are included in the figures of Rs. 9.040. Mr. Iqbal Kazi's argument that there is no allegation that any voucher of Rs. 3,000 was signed by the Master of the ship that could be changed into Rs. 73,000 is fallacious as if the amount of Rs. 3,000 was not given on 20-I1-1976 then in the telex the amount mentioned should have been either Rs. 6,010 or Rs. 79,040. If the payment of Rs. 73,000 on 20-11-1976 was in addition to Rs.9,040 then there should have been an independent receipt for Rs. 3,000. Therefore, it is obvious that the receipt of Rs. 3,000, has been converted into Rs.

143. 73,000. The argument that the Master of the ship would not have signed the receipt if there was any blank space is also without any substance for if there was some blank space in the receipt between the word Rs. And the figure 3,000 still any one would have signed the receipt in good faith believing that there would be no forgery. Moreover, I pointedly asked Mr. Iqbal Kazi to show from the Cash Book, the photostat copies of the relevant pages whereof are available on record marked as Exhs. 37/ 117 to 37/ 141 and entry regard to the payment of Rs. 73,000, but he was unable to do so.

144. Now, I will take up the next item of the claim under this head, which is for Rs. 28,800 covered by Exhs.

145. 37/16 to 37/21. This amount is made up of six amounts, out of which four amounts totalling Rs. 15,800 covered by Exhs. 37/16 to 37/18, and 37/21 are not in dispute. Mr. Mirza has disputed only two amounts of Rs. 3,000 and Rs. 10,000 covered by Exhs. 37/19 and 37/20. The argument of Mr. Mirza is that the alleged signatures of the Master of the ship on the receipts (Exhs. 37/19 and 37/20) do not tally with the signatures of the Master on Exhs. 37/16 and 37/5. A suggestion was made to plaintiff in his cross-examination that these signatures were forged. However, admittedly there is no evidence on record that the signatures on the aforesaid documents are forged. On comparison I find the signatures on Exhs. 37/19 and 20 are identical with the signatures on Exhs. 37/16 or Exh.

5. Therefore, the total amount claimed under Exhs. 37/16 to Exh. 37/21 stands proved.

146. The next items for consideration are the amount of Rs. 8,262 covered by Exhs. 37/22 to 37/38, Rs.

147. 5,450 covered by Exh. 37/84 to 37/91, and Rs. 2,075 covered by Exhs.37/103 to 37/105. These amounts are not disputed by Mr. Mirza at the time of arguments. Accordingly, claim for these amounts totalling Rs. 1,5787 also stands proved. .

148. Now, I would take up the claim for Rs. 98,222.80 covered by Exhs. 37/71 to 37/83. In support of these payments plaintiff stated that he was instructed by the Master to make payments to the members of the crew and provide for their repatriation for their home countries. He produced two writings marked (Exhs. 37/69 and 37/70) which are statements showing the amounts due to the crew on account of their wages on the dates mentioned therein. These two writings, it is claimed bear the signatures of the Master of the ship. He further stated that he had made payment to the members of the crew of the ship and he produced 13 receipts marked (Exhs. 37/71 to 37/83) which were exhibited subject to proof. He further deposed that these receipts had been signed by the Master of the ship. He further identified the signatures of the Master on these documents. The details of these receipts are as follows;---

(i) Exh. 37/77.For Rs. 12,688.50.

(ii) Exh. 37/78.For Rs. 3,322.80.

(iii) Exh. 37/80. (two for Rs. 10,099.10. Signatures but both in carbon)

(iv) Exh. 37/82.For Rs.3,308.40,

(v) Exh. 37/83.For Rs. 4,750.20. 34,169.00

(vi) Exh. 37/72.For Rs. 21,654.90.

(vii) Exh. 37/74.For Rs. 3,188.60.

(viii) Exh. 37/76.For Rs. 4,825.20.

(ix) Exh. 37/79.For Rs. 3,916.70.

(x) Exh. 37/81.For Rs. 9,959.20. 43,544.60

(xi) Exh. 37/71.For Rs.5,378.30.

(xii) Exh. 37/73.For Rs. 12,594.00.

(xiii) Exh. 37/75.For Rs. 2,536.90. 20,509.20.

149. It may be proper to mention at this stage that there was an agreement between the plaintiffs and the members of the crew (Exh. 37/144) whereunder the agents had agreed to pay to the crew their full salary as well as their repatriation on completion of discharging and loading of cargo on board the vessel. This is an admitted document as the duplicate of this has been produced by defendants 1 to 3 which is Exh. 37/145.

150. Defendant No. 3, however, denied that any payment was made to any members of the crew. The submission of Mr. Mirza in respect of the documents under which the payments were allegedly made is that they are simpliciter statements of account and not the receipts. He further submits that some of the documents have, not at all been signed by the persons who have been allegedly paid these amounts while the two signatures on the other statements differ. He also submitted that in respect of those statements which have not been signed or on which the signatures in ink differ from the signatures in carbon ink, the claim should not be allowed. Therefore, it is necessary to find out on which statements the signatures tally and on which statements the signatures do not tally and which statements have not been signed at all.

151. Accordingly these statements or receipts can be divided into three groups. The first group would include statements (Exhs. 37/77, 37/78, 37/80, 37/82 and 37/83) for the total amount of Rs. 24,169.

152. According to Mr. Mirza these documents bear signatures only in carbon copy and do not bear second signature.

153. The contention of Mr. Mirza is that it is the case of the plaintiffs that they bad obtained signatures on the documents when payments were being made and therefore if there are no second signatures on certain statements, then the plaintiffs must have not paid those amounts, to the persons concerned. On the other hand, Mr. Iqbal Kazi submitted that the payments were made at the time when the statements were prepared and signed by the crew and the Master and not afterwards and that no suggestion was made to plaintiff 1 in his cross-examination that no payments were made to the crew in respect of those receipts on which the second signatures do not appear. Mr. Iqbal Kazi fortified his arguments by reference to (Exh. 37/69) which is the statement of account prepared by the Master for the purpose of the payment of the wages to the crew upto 31-12-1976 and the same amounts have been shown in the statements or receipts.

154. However, to me the matter appears to be simple. If payments were made at the time when statements were prepared there where was the necessity of obtaining two signatures, one signature on each statement was sufficient but if it was considered necessary to obtain two signatures, presumably one for correctness of the statement and the other as and by way of acknowledgment of having received the money then there is no explanation why second signature was not obtained on some of the statements. In the absence of a satisfactory explanation and other evidence in support of the payment, I am inclined to hold that the plaintiffs have failed to prove payments under the statements (Exhs. 37/77, 37/78, 37/80, 37/82-83). I, therefore, disallow the amount of Rs. 34,169.

155. So far as the amount covered by the statements/receipts of the other two groups are concerned with the exception of the two amounts of Rs. 21,654 and Rs. 3,188,60 covered by (Exhs. 3/72 and 74), I allow the rest of the claim as in my opinion the two signatures other 3 statements are identical.

156. Plaintiffs are entitled to Rs. 18,701.10.

157. So far as the claim under (Exhs. 37/71, 73 and 75) for Rs. 20,509.20 is concerned it is not in dispute. I accordingly allow this claim. In the result the plaintiffs are entitled to a total sum of Rs. 39,210.30 on account of payments made to the crew.

158. The plaintiffs have claimed a sum of Rs. 67,566 on account of expenses incurred by the plaintiffs on repatriation of the members of the crew. Out of the aforesaid amount, a sum of Rs. 33,360 was paid to Mackinnon's Travels on account of air tickets. In support of this claim the plaintiffs examined Hashim Raza, Assistant Manager, Mackinnon's Travels, P. W. 8 (Exh. 13) who proved the certificate dated 14-3-1977 (Exh. 13/1) certifying that 12 members of the crew of s. s. Phoenix named therein were repatriated at the request of the plaintiffs and the representative of the International Shipping agency made the payment for the tickets issued to the persons named in the certificate. This witness was not cross-examined and it is not disputed by Mr. Mirza at the Bar that the persons named in the certificate were members of the crew, therefore, the claim to the above extent stands proved. The plaintiffs have claimed that they have paid another sum of Rs. 34,000, to American Express for repatriation of 2 members of the crew of s. s. Phoenix. In support of this claim the plaintiffs examined S. Farhat A.I, P. W. 7 (Exh. 12) who was the Assistant Manager, Operations of American Express at the relevant time. He deposed that 9 members of the crew of s. s. Phoenix were flown to Athens by Japan Air Lines through the tickets provided by or at the request of the International Shipping Agency. He produced the certificate issued by his office (Exh. 12/1) showing that 9 members of the crew of s. s. Phoenix were booked by American Express on JAL flight on 29th November 1976 and that they have been repatriated from Pakistan. He admitted having received the payment of the tickets but in cross-examination he was unable to say as to who had made payment for the tickets issued to the crew.

159. The plaintiffs had claimed in the Disbursement Statement (Exh. 37/116) a sum of Rs. 77,260 on account of tax on the freight earnings This claim is based on two bills of defendant 4. The first bill is dated 7-2-1977 (Exh. 39) for Rs. 77,000 which amount was further increased by defendant 4 in its subsequent bill dated 7-3-1977 (Exh. 37/153). It is common ground that the amount claimed by defendant 4 has not been paid by the plaintiffs either to them or to the Income-tax Department.

160. Therefore, on this short ground alone the plaintiff are not entitled to claim this amount. However, Mr. Iqbal Kazi, Advocate contended that under section 18 (38) of the Income-tax Act, 1922 (hereinafter called the Act) the plaintiffs are entitled to deduct from freight earnings on export cargo at the time of payment income-tax at the maximum rate and super-tax at the rate applicable to a company as the defendants 1 to 3 are non-residents in Pakistan. He further contends that under section 40(2) and section 42(1) the liability of local agent to pay the tax on behalf of non-resident continues. Accordingly, he submitted that the plaintiffs are entitled to deduct the amount of Rs.

161. 82,500 from the amount of Rs. 7,02,263.72, being the amount of freight received. However, in my opinion, this provision would not be attracted to the present case for the simple reason that special provisions for levy and collection of taxes have been made in sections 44-A and 44-B of the Act which are contained in Chapter V-A of the Act. These special provisions will prevail over the general provisions for in section 44-A, it is provided that the provisions of Chapter V-A shall, notwithstanding anything contained in the other provisions of the Act, apply for the purpose of the levy and recovery of tax in the case of any person who resides out of Pakistan and carries on business in Pakistan in any year as the owner or charterer of a ship (such person is referred to in the Chapter as the principal) unless the Income-tax Officer is satisfied that there is an agent of such principal from whom the tax could be recoverable in the following year under the provisions of this Act. It is further provided in subsection (1) of section 44-B of the Act that before the departure from any port in Pakistan of any ship in respect of which the provisions of Chapter V-A apply, the master of the ship shall prepare and furnish to the Income-tax Officer a return of the full amount paid or payable to the principal, or to any person on his behalf, on account of inter alia, the carriage of goods shipped at that port since the last arrival of the ship thereat. Subsection (2) of section 44-B of the Act provides that on receipt of the return, the Income-tax Officer shall assess the amount referred to in subsection (t) and one-sixth of the amount so assessed shall be deemed to be the amount of the profits and gains accruing to the principal on account of the carriage of gods, etc. Shipped at the port. Under subsection (3), section 44-B of the Act it is further provided that the Income-tax Officer shall determine the sum payable as tax thereon at the rate for the time being applicable to the total income of a company and such sum shall be payable by the master of the ship, and a port---clearance shall not be granted to the ship until the Customs-Collector, or other officer duly authorised to grant the same, is satisfied that the tax has been duly paid.

162. It will therefore be seen that the liability to file return of full amount payable to defendant 2 and for payment of tax on freight earning is that of the master and no port clearance can be granted to the ship unless the Customs-Collector or other officer duly authorised to grant the same, is satisfied that the tax has been duly paid. The plaintiffs do not come in the picture unless they have gone to the Income-tax Officer and have satisfied him that tax could be recovered from them which is not the case of the plaintiffs. It would further be seen that the provisions of sections 44-A and 44-B of the Act override the provisions of section 18(3-B) of the Act. Therefore, in my opinion the plaintiffs are not entitled to the amount claimed by them on this account. I may, however mention that it was submitted by Mr. A. H. Mirza, that no tax on freight earning would be payable in this case as the cargo had beep discharged by the ship under the order of the Martial Law Authorities. In this regard he pointed out the evidence of defendant 1 who has stated that "the claim for payment of export tax on export cargo is misconceived as export cargo loaded on the vessel was unloaded subsequently by Martial Law Authorities".

163. Be that as it may the plaintiffs for the aforesaid/reasons are not entitled to claim this amount.

164. The next item of claim made by the plaintiffs is on account of commission on import cargo. The plaintiffs have claimed in the disbursement statement (Exh. 37/116) a sum of Rs. 5,000 at the rate of 2 -- % on the amount of freight on the imported cargo which they calculated in U. S. Dollars 20,000, I.e. Rs. 2,00,000. Mr. Iqbal Kazi has submitted that in paragraph 7 of the plaint, the plaintiffs have specifically asserted that what is stated in the disbursement account is true and there is no specific denial of this averment in the written statement. However, in paragraph 9 of the written statement which is in reply to paragraph 7 of the plaint, the defendants 1 to 3 have stated that it is denied that the defendants are liable to pay Rs. 4,66,490 and they have further denied that the disbursement account is true. Therefore, the submission that there is no specific denial is not correct.

165. It is admitted position that there is no agreement in writing as to the rate of commission which the plaintiffs were or are entitled to charge. Plaintiff No. 1 in his deposition, as admitted at the Bar, has not said a word about alleged agreement on the rate of commission. However, defendant 3, Capt.

166. Zourdos in his deposition has stated that the amount claimed on account of commission in respect of the imported cargo is inflated to 250% as the normal commission is 1 per cent.

167. Accordingly plaintiff is entitled to Rs. 2,000 under this claim.

168. The plaintiffs have claimed a sum of Rs. 35,118.19 on account of commission at the rate of 5 % on Rs.

169. 7,02,363.72 which is the amount of freight said to have been earned on the export cargo. Plaintiff has not said in his deposition a word regarding the agreement as to the rate. However, Capt.

170. Zourdos has stated "in respect of export cargo the amount of commission is claimed at the rate of 5 % instead of 2 --per cent. And he is not entitled at the rate of 2 --% as according to the plaintiff he had no export earning". However the submission of Mr. Kazi is that Pioneer Shipping Agency have claimed from the plaintiff in their bill dated 7-2-1977 (Exh. 37/153) commission at the rate of 2 -- % on U. S. Dollars 20,000 and at 5 % on Rs. 7,50,000 which is the amount of freight earned on export cargo. Plaintiffs have not paid any amount to Pioneer Shipping Agencies Limited. They have not alleged or proved any agreement with Pioneer Shipping Agencies Limited as to the rate. There is also no evidence that the rate at which the commission has been claimed by Pioneer Shipping Agencies is the normal rate as an agent is entitled to charge commission on export cargo.

171. However, since defendant 3 has admitted that the plaintiffs are entitled to 2 --% commission on export cargo, I allow the same. Accordingly, the plaintiffs are entitled to Rs. 19,559.

172. The plaintiffs have claimed a sum of Rs. 14,047.27 in disbursement account (Exh. 37/116) on account of brokerage on freight. However, except the bare statement made in the disbursement statement there is no oral or documentary evidence in support of this claim. No broker to whom this commission was paid or was payable has been named or examined in support of this claim. No bill or receipt has been produced in support of the claim or payment. Mr. Iqbal Kazi has also not been able to point out any entry in the cash disbursement sheets (Exhs. 37/117 to 37/141)). I therefore, cannot allow this claim.

173. The over all picture that merges is that the plaintiffs have established their claim under various heads as follows :-- 1234 Sr.AmountLiabilityAmount Paid No.Item.Claimedand/or proved Rs.Rs.Rs.

1. Stores and70,79668,017.80.46,811.10. provisions

2. Watchman6,5705,070.005,070.00. charges.

3. Laundary1,039.901,039.901,039.90 charges

4. Lubricants26,22326,22326,223 & Oil

5. Tally9,0003,2853,285 Charges Charges Expenses

8. Food52,835.19600.00600.00 Expenses

9. Stevedoring13,94,52.1768,968.00 Expenses

10. Telex15,0008,0008,000.000 Charges

11. Telex and29,00015,00015,000 (Presumably paid) other expen--ses payable to Transshipping Corp. Ltd.

12. Medical3,3203,2003,200.00 Treatment 13.Bounded5,500NilNil stores

14. Lighterage18,1273Nil65,000.00 charges

15. Repairs14,2,461Not deter-15,000.00 mined

16. Misc. Exp.35,0003,4973,497

17. Cash advan-2,27,8881,60,403.301,60,403.50 ced to Master and other mem--bers of the crew

18. Freight77,260NilNil tax

19. Bunker Oil41,669.0041.669.00Nil

20. Pioneer22,232.40NilNil shipping to s. s. Phoenix

21. Commission5,000.002,0002,000 on import cargo

22. Commission19,55939,118Nil on Export

23. Brokerage14,047.27NilNil 11,51,171.934,49,459.9447,80,57.24 Since I have not determined the value of the repair works done by Central Shipwright Contractors for the reasons stated earlier, Mr. Iqbal Kazi, learned counsel for the plaintiffs pleaded that in such an event plaintiff would be entitled to indemnity for the amount which may be found due to Central Shipwright Contractors. The plea of Mr. Iqbal Kazi is not valid for more than one reason. Firstly, the suit is based for recovery of the balance due on disbursement account and not on a claim for indemnity. Secondly, the liability has not been determined as yet. A person is entitled to maintain a suit for indemnification only either on payment of the amount to the promiser or at least when the liability is determined but not before. In any case, I have found that the plaintiffs have been able to establish the liability of defendant 2 only to the extent of Rs. 4,49,459.90. Therefore, even if the whole amount of Rs. 1,42,461 is taken to be the liability of defendant 2 and the same is added to the aforesaid amount, still the total amount would be far less than the amount of Rs. 7,02,363.72.

174. Therefore, the question of indemnity does not arise.

175. Issue No. 4.-Now, I will take a issue No. 4. The plaintiffs in the Disbursement Statement (Exh. 37/ 116) have shown the total receipts of Rs. 7,02,363.72 on account of freight earning. The plaintiffs have not produced any record or the accounts books showing how many bills of lading were issued by him and how much freight was earned. Plaintiff 1 in cross-examination bad first admitted that he did maintain the register containing the particulars of freight earnings and also disbursement register showing the disbursement of the freight earnings. With regard to Cash/ Petty Register for the period commencing from 1-7-1976 to 30-10-1976, he however, expressed his ignorance and stated that tire Accountant knew about it. On 14-12-1976, when he was further cross-examined he had undertaken to produce the freight earnings register on the next date. On 10-1-1978, he stated that he had found that the freight earnings register was not maintained and denied the suggestion that the freight earnings register was maintained but he was deliberately suppressing it. He also denied the suggestion that he had issued 57 bills of lading. He, however, admitted .That he had issued 57 bills of lading. He expressed his ignorance 'as to the amount of freight collected on 57 bills of lading issued by him. He, however, conjectured that the amount collected might be Rs. 50,000 to Rs.

176. 60,000, more than the amount shown by him in the statement of accounts namely, Rs. 7,02,263.72.

177. He, however, admitted that the amount of Rs. 7,02,263.72 was earned by him by way of freight on 16 bills of lading. He expressed his inability to produce the copies of the remaining 41 bills of lading issued by him as they were not available in office for the reason that he had allegedly banded over those copies to the shippers who had reshipped their goods on other ships due to the alleged long delay of the vessel. In his cross-examination he stated that he did not know who were the shippers.

178. He further stated that he had refunded the freight received on the export cargo to the shippers in respect of 41 bills of lading alongwith the office copies of the bills of lading. He stated that he had refunded the sum of Rs. 70,000 to the Union Enterprises for many bills of lading and another sum of Rs. 3,744 to Messrs Subhani Associate for one bill of lading. This he stated on the basis of the counterfoils of the cheques. He denied the suggestion that he had not shown the correct amount of freight earnings in (Exh. 37/116).

179. Captain Zourdos in his deposition (Exh. 38) stated that in his estimate the plaintiffs earned about Rs. 25,00,000 from the bills of lading issued on behalf of defendant 2 and further stated that the plaintiffs although did not inform him about the total amount of freight collected by him but plaintiff 1 gave him the impression that after meeting all the expenses out of the freight earnings a sum of U. S. Dollars 20,000 to U. S. Dollars 25,000 shall be left by way of surplus. No other evidence was produced by the parties. From the evidence of plaintiff 1 and defendant 3, I have come to the conclusion that the plaintiffs have purposely suppressed the register of freight earnings accounts books which, as admitted by him, the plaintiffs were maintaining. He has even suppressed the office copies of the bills of lading as it is unbelievable that the plaintiffs would have returned the office copies of the bills of lading. Since the plaintiffs have brought this suit on balance due on account and have failed to produce and suppressed the freight earnings register and relevant accounts books, I have no alternative but to presume that if they had produced the same they would have supported the statement of Captain Zourdos that the plaintiffs had given an impression that there would be a surplus of about Rs. 2,00,000 to Rs. 2,50,000. It was also not possible for the defendants' to produce any evidence and summon any shipper as a witness as the plaintiffs did not disclose even the names of the shippers. Plaintiffs have also not produced any ledger. Plaintiff 1 has only produced relevant pages of cash book. Mr. Iqbal Kazi has not been able to state from the entries in the cash book what was the total amount of freight earned. I am therefore, of the opinion that the plaintiffs must have earned more by way of freight than the total amount of expenditure incurred by them on the supplies of stores, repairs, payment of wages to the crew, advances to master of the vessel and other members of the crew etc. Detailed in the Disbursement Statement. Therefore, the suit must fail on this account alone.

180. Now, I would take up issues 2 and 5 together. It is the admitted position that the plaintiffs do not hold a licence under section 207 of the Customs Act, 1969, which provides that no person shall act as an agent for the transaction of any business relating to the entrance or departure of an conveyance or the import or export of goods or baggage at any custom station unless such person holds a licence granted in this behalf in accordance with the rules. It was precisely for this reason that the plaintiffs engaged defendant 4 for rte aforesaid purpose as it holds such a licence.

181. It is also clear from the evidence led by the parties that defendant 2 would not have appointed the plaintiffs as their agents if they had disclosed that the were not licensed agents. As regards the allegation that the plaintiffs mismanaged the ship, there is sufficient evidence to hold so. The plaintiffs engaged stevedores, lighterage contractors and repairer without obtaining quotations and in advance settling the rates. However, I need not go into full evidence on this point as it is not necessary to give any findings on this part of the issue for defendants 1 to 3 have not made any counterclaim in this suit and the exercise would be without any material advantage or disadvantage to any party to the suit.

182. Issue No. 2-A.-It is admitted position that the plaintiffs had appointed defendant 4 as their sub- agent and they acted as such till 4th February 1977, as it is in the evidence of Capt. Zourdos that he came on 2nd February 1977, and learnt that the plaintiffs were not licensed shipping agents and appointed defendant 4 as agents of the ship for it held the licence required under section 207 of the Customs Act, 1969. So far as defendant 4 is concerned it incurred no liability whatsoever, towards the plaintiffs. On the contrary the plaintiff's claimed to have incurred liabilities towards defendant 4 on account of telex expenses which claim I have already deal B with. In my opinion plaintiffs bad no cause whatsoever, against defendant 4 upto 4-2-1977 as it acted as sub-agents of the plaintiffs and on or after 4th February 1978, defendant 4 had acted as direct agents of the plaintiffs. I am therefore, of the opinion that the plaintiffs have had no claim or cause of action against defendant 4. In such an event that suit is liable to be dismissed against the defendant 4 with costs and it is not permissible to partly reject the plaint.

183. Issue No. l.---Now, I would take up issue No. 1 with regard to the maintainability of the suit, although on my findings on issue No. 3 which must result in the dismissal of the suit, it is not necessary to decide this issue. Since, however, the learned counsel for the parties have argued this issue at some length and have referred to a number of cases, it would be proper that I should deal with it, though briefly.

184. The contention of the learned counsel for the defendants Was that the plaintiff's claim was not in reality a claim for 'necessaries' within the meaning of section 5 of the Admiralty Courts Act, 1861 (hereinafter called the Act) but merely a claim for the balance of an ordinary mercantile account and as such it does not lie in the admiralty jurisdiction of this Court either in rem or in personam.

185. On the other hand the contention of the learned counsel for the plaintiffs is that it is essentially a suit for 'necessaries' supplied to the ship and is maintainable under section 5 of the Act which reads as follows :--- "The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the Port to which the ship belongs, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recover 20 he shall not be entitled to any costs, charges or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said Court."

186. It is an admitted position that the ship does not belong to the Port of Karachi and the owners of the ship are not domiciled in Pakistan. Therefore, the questions for consideration to attract the admiralty jurisdiction of this Court are, whether the claim is for 'necessaries' supplied to the ship and whether an agent can maintain an action for the balance on account which I have reproduced in extenso at page 4 of this judgment. What are 'necessaries' within the meaning of section 5 of the Act the test has been laid down by the Privy Council in Foong Taj & Co. v.

187. Buchhesister do Co. (1908 A C 458) at page 466 wherein it was held as under :---- "Necessaries, within the meaning of the Act of 1861, are such things as the owner of a vessel, as a prudent man, would have ordered, had be been present at the time they were ordered, as being fit and proper for the service on which the vessel was engaged."

188. For this test their Lordships of the Privy Council referred to Webster v. Seekamp ((1821) 4 B & Ald.

189. 352) and The Riga (LR3A&E516). It will also be useful, if the observations by Abbott, C. J., in Webster v.

190. Seekamp is reproduced; "The general rule is that the master may bind his owners for necessary repairs done, or supplies provided, for the ship. It was contended that this liability of the owners was confined to what was absolutely necessary. I think that rule too narrow, for it would be extremely difficult to decide, and often impossible in many cases, what is absolutely necessary. If, however, the jury are to inquire only what is necessary, there is no better rule to ascertain that, than by considering what a prudent man, if present, would do under circum--stances in which the agent, in his absence, is called upon to act. I am of opinion that whatever is fit and proper for the service on which a vessel is engaged whatever the owner of that vessel as a prudent man would have ordered, if present at the time, comes within the meaning of the term 'necessary' as applied to those repairs done or things provided for the ship by order of the master for which the owners are liable."

191. Keeping the above test in mind and various cases, when I examine the various items in the Disbursement Account (Exh. 37/116), I find that stores and provisions (see The Comtesse de Fregeville ((1953)1 WLR34) ; Webster v. Seekamp, Lubricant Oil and Furnace Oil (See. The D'vore (Lush. 332) Freight Tax and Brokerage (if those had been paid) are necessaries. I further find that the stevedoring, lighterage, tally charges, wages to the crew and advance payments to the master under certain conditions would also fall within the term 'necessaries' but repatriation charges, telexes, commission on import cargo, hotel bills, launch hire charges would not come within the term 'necessary'.

192. Therefore, from the above examination of the Disbursement Account it is clear that the claim is not based wholly on account of 'necessaries' but is a mixed account of necessaries and other expenses.

193. Now, I would consider whether an agent can maintain an action in Admiralty for moneys advanced for procuring necessaries or balance on an account where moneys are advanced for necessaries and adjustments are given on account of freight earned.

194. It is well settled law that moneys advanced for the procuring of necessaries stand on the same footing as necessaries supplied. (See TheRiga ; I may also refer to The Hainrich.Bjorn (1921 L R 241).

195. Reference may also be made to Sir Gorall Barnes' decision in the Andre' Theodore ((1904) 10 Asp. M L C 91), Tire Anna ((1876) 1 P D 253), Tae Marianne ((1891) P D 180) and, finally, Foong Taj Buchheister where it is said; "It cannot be questioned that the cases of the Rio Tinto ((1884) 9 A C 356) and the Heinrich Bjorn amongst others, establish that the person who pays for necessaries supplied to a ship has, as against that ship and her owners, as good a claim as the person who actually supplied them, and, further, that he who advances money to the person who thus pays, for the purpose of enabling him to pay, stands in the same position as the person to whom the money is advanced.

196. I may also refer to the weighty observations of Hill, J., at pages 242 and 244 in The Mogileff (1921) "If therefore the plaintiffs had been invited to find the moneys they found for the purpose for which they found them, there could be no question, and, indeed it is not disputed that the plaintiffs could have sued the defendants by a writ in rem served upon Mogileff, and by arrest could have made the ship security for any judgment they might recover in such an action."

197. "In recent times, much more than in Dr. Lushington's day, the most usual way for necessaries to be supplied to a ship elsewhere than in the home port is upon the credit of the ship's agent, acting either upon general instructions or upon specific authority of the owner. Such method of supply has taken the place of bottomry, greatly to the advantage of ship owners. The agents of foreign owners are ready to pledge their credit for necessaries because they know that they can secure re- payment from the owner not only by proceedings in personam but also by proceedings in rem. In modern times actions in rem in this Court for necessaries have more often been brought by ship's agents than by any other class of necessaries men. Instances of claims by agents of the owner are to be found in the following :---- "The Afina van Linge (1859) Swa. 514; The Soblomsten 1866) L R 1 A & E 293; Messrs Donner's claim; The Underwriter (1868) 1 Asp. M L O 127; The Panthea (1871) 1 Asp M L O 133; The Riga L R 3 A & E 516; The Anna. 1 P D 253 ; The Heinrich Bjorn 10 P D 44 and Foong Taj v. Buchhesister 1908 A C 458."

198. Finally, the question whether an agent can sue its principal under the admiralty jurisdiction of the Court on account for necessaries even where he has given credit for the sums received by him on account of principal or to the credit of the ship stands concluded by the judgment of the Privy Council in Foong Taj v. Buchheister wherein it was observed by their Lordships at page 469 of the report, "There is nothing in the Act of 1861 to prevent an agent from suing for necessaries under section 5, nor is the any rule or principle of law that an agent loses his right so to sue if in the account he furnishes to his principal for those necessaries he gives credit for sums received. In the case of The Underwriter the governing considera--petition on which the judgment of Phillimore, J., in favour of the plaintiff turned was this-that there, as here, the suit was instituted, "not to recover any particular or selected item of a general account, but the whole of the sum expended upon this particular occasion in payment of the necessaries required by the exigencies of the ship and without which she could not have continued her voyage". Therefore, it will be seen that a suit on account for necessaries after adjustment of sums received on account of principal or the ship is maintainable.

199. I may, however refer to another judgment of the Privy Council in The Twentje. In this case the facts were that the plaintiffs were the a gents in England of the owners of the ship which traded between London and Holland; they collected freights and paid express and rendered voyage accounts.

200. These accounts included items for coals on six different voyages between June 20 and August 4, 1854. In the Privy Council arming the judgment of Dr. Lushington in the West Friesland which was the former name of the Twentje, it was held that the plaintiffs had no claim fn rem in respect of the coals, because in respect of those items they had been satisfied by payment in account. They were attempting to sue in rem for a general balance of account when the necessaries items in the accounts had already been satisfied by payment.

201. There are two more cases in which the accounts were rejected and they are El Salto (25 T L R 99) and in the Underwriter (1 Asp. M L C 127) wherein Sir R. Phillimore quotes Dr. Lushington and says;--- "If the evidence had established that this suit was brought to recover the balance of an account, or in order to obtain a general balance of accounts, I should hold that I was bound by the decision of the Privy Council in the Twentje which was an appeal from the decision in The West Friesiand) (Swa.

202. 454 ; 13 Moo. P C 185) and by the decision of my predecessor in The Comtesse de Fregedille (Lush.

203. 329, 332, 333) to hold that this Court had no jurisdiction to entertain the suit."

204. The examination of the above authorities shows that the rule that an agent can sue in rem on account of necessaries after giving adjustment of sums received on account of the principal is not absolute. There are factor which may have to be considered such as special contract or special relationship between the principal and the agent, course of dealings and the state of accounts between them. On the facts of this case I have found that nothing is due to the plaintiffs on accounts. If however, the plaintiff had taken out of the account items of necessaries and sued in rem in respect of those items the rule laid down by their Lordships of the Privy Council in The Twentje would have been attractable for the sums spent by the plaintiffs on necessaries were adjusted from the income from freight and the plaintiffs non-suited.

205. There is another serious objection to this suit. The plaintiffs have brought this suit not only against the ship in rem but also against its owner in personam and such a course is not open to the plaintiffs in view of the P provisions of section 35 of the Act under which the plaintiffs could proceed either in rem or in personam but they could not proceed both in rem and in personam.

206. Before I part with this case, I must record my appreciation of the assistance rendered in this case by the learned counsel for the parties.