1. This a an admiralty action wherein the plaintiffs who were the local agents of Messrs Ensena Marina Line and Ensena Marina Complania Naveriera inter ells provided and rendered services of stevedoring, discharging/ loading and supplying necessaries to the ocean going vessels m. v.
2. Geena, m. v. Bright Sea. m. v. Maieke, m. v. Confidence, m. v. Ocean Friend, m. v. Maltese-S, m. v.
3. Aze*m and m. v. Bright Star. In this action the plaintiffs have joined m. v. 'Aseem' the ship as defendant 1 and the aforesaid two companies as defendants 2 and 3 and have claimed a total amount of Rs. 7,14,558.11 from the defendants as detailed belowt "m. v. GeenanRe. 1,15,944.47 m. v. MaiekeRe. 18,819.28 m. v. ConfidenceRa. 1,06,016.% m. v. Ocean FriendRe. 5,14,527.55 m. v~ Maltese-S.Re. 1,73,107.39 TotalRs. 9, 28,406.65 Against the aforesaid amount of Re. 9,28,406.65 the plaintiffs have adjusted two amounts of Ra.
4. 38,645.27 and Rs. 1,75,203.27 which were lying in the account of two ships namely m. v. Bright Star and m. v. Aseem respectively to their credit.
5. On the first application on 8-9-1977 my Lord the Chief Justice was pleased to pass an ad interim order restraining the defendants ship m. v. Azrom from leaving the Port of Karachi and his Lordship was further pleased to direct the ship be arrested and attached with notice to the defendants.
6. Defendants 2 to 3 do not appear to have been served. However. Mr. Mansoor Ahmad Khan.
7. Advocate appeared on behalf of m. v. Azeem defendant 1 has filed counter-affidavit of Captain Tomas M. Festina wherein it was inter alto denied that defendant 1 is owned, possessed, managed and operated by defendants 2 and 3 as is alleged by the plaintiffs.
8. However, the first question for my consideration is whether action in rem against defendant 1 is maintainable or not. It is admitted position that nothing is due from m. v. Azeem on account of any 'necessaries' supplied or services rendered to m. v. Azeem defendant 1 or any other account covered by the provisions of sections 6, 7, 8, 9 and 10 of the Admiralty Courts Act, 1861. It is also admitted position that a sum of Re. 1.75,203.27 was lying to the credit of this ship in its account with the plaintiffs which they have adjusted against their claim on account of 'necessaries supplied' to and services of stevedoring, discharging loading, rendered to the five ships mentioned hereinbefore. For an action in rem against a ship in admiralty jurisdiction, it is necessary to allege and prove that services have been rendered or 'necessaries have been supplied to the ship or claim has arisen on grounds covered by the provisions of sections 6, 7, 8, 9 and 10 of the Admiralty Courts Act, 1861, in respect of the property against which action is brought. In the present case the claim has not arisen on account of 'necessaries' supplied or service rendered to 'm. v. Aseem'. Mr. Saloom Akhtar contends that the claim for necessaries supplied and for servioes rendered to other `e ships is maintainable under the Admiralty jurisdiction in an action in re against one of the ships owned by the same owners. Who owned the othe ships to whom the supplies were made. In support of this contention the learned counsel relied upon "The Helmi--h Bjorn" (1). He particularly relied on the following passage which is found at page 395 of the Report: "It has been suggested that the way in which necessaries are associated with salvage and damage implies an intention to give in respect of necessaries the same lien as existed in respect of salvage but the argument is not satisfactory, especially when it is oba.-rved (1) that necessaries are more closely associated with towage, which give no lien, than with salvage or damage, (2) that the 4th section of the same Act gave the Court jurisdiction to decide all questions of salvage damage, wages, bottomry; and that this was so far from creating a lien in favour of a master's wages, though the word 'wages' is closely associated - with claims, protected by maritime liens, that the Legislature subsequently interposed to give a master this lien. Indeed, it is difficult to suppose that. If the Legislature had intended to create a maritime lien, it would not have done so in express words. When, as on two occasions during this reign it has been the case, the Legislature has been minded to create a maritime lien in favour of a master's (1) 5 Asp. ~4ar. Law Cue. 391 wages, it has done so by express words. Thus, by the Statute 7 and 8 vict. c.112, S. 16, it was enacted that all the rights, liens, privileges, and remedies (save such remedies as are against a master himself) which by that Act or by any law, statute, custom or usage, belonged to any seaman not being a mastermariner, in respect to the recovery of his wages, should, in the case of bankruptcy or insolvency of the owner of the ship, also belong and be extended to master mariners in respect to the recovery of wages due to them from the owner of any ship belonging to any of Her Majesty's subjects. And almost precisely similar words, omitting those relating to the bankruptcy or insolvency of the owner, are found in the Merchant Shipping Act, 1854, S. 191. Bat how and In what manner was the new jurisdiction thus given to the Admiralty Court by the Statute of 1840 to be exercised? The answer is, that it must be exercised in the manner familiar to the Courts of Admiralty and to all Courts regulated by the civil law, either by an arrest of the person of the defendant if within the realm, or by the arrest of all personal property of the defendant within the realm whether the ship in questi3n or any other chattel. Or by proceedings against the real property of the defendant within the realm. (Tire Charkieh L. Rep. 4 Ad. Sit Eccl. 59, 91; The Alexander, 1 W. Rob. 294)."
9. However, in this case the question their Loardships were considering was whether the necessaries supplied to a ship which had subsequently,, changed bends could give rise to a maritime lien or not. It is now well settled that it does not under our law. Moreover, the observations made therein are merely obiter.
10. Furthermore. Mr. Salim Akhtar has himself referred to the can of The Beldls (1) wherein a Court of Appeal consisting of Sir Boyd Merriman, P. Scott, L. J., and Swift, J. With reference to 'The Henerich Ejora' observed at page 607 of the report as follows:- "The learned Lord Justice there says in regard to the procedure fn rem. "The arrest need not be of the ship In question. But may be of any property of the defendant within the realm". That observation was however, purely obiter.
11. Apart from unfounded contention of a bottomry bond, which the Court rejected, the only question of law relevant to the decision of the case was whether a maritime lien attaches in English law to be a valid claim for necessaries. That was necessarily the sole issue in that case, since the ship for which the necessaries had been supplied to that of a new owner who had nothing to do with the voyage when necessaries were supplied. If there was a maritime lien, the now owners took subject to the lien; if there was no maritime lien their ship was free and the plaintiff had no right to arrest it in their hands. The opinion of the Court in the Hinrich Bjorn is entitled to great respect but it is not binding on us, and in my view the dictum is erroneous"
12. Therefore, the action to rem against defendant No. 1 appears to b1C misconceived and not maintainable.
13. Mr. Saleem Athtar, Advocate for the plaintiff has stated that the action against defendants 2 and 3 is to personam. Therefore. If action en rem against defendant No. 1 is not maintainable then the provisions of rule 731
(1) 18 Asp. Mar. Law Cas. 598 of the Sind Chief Court Rules (Original Side) would not be attracted for the ship could be arrested only in an action In ram.
14. Now, I have to consider whether the ship could be attached before judgment as the plaintiffs bave also applied under rule 5 of Order XXXVIII of the C. P. C. For attachment of the ship before judgment, for attachment before judgment it is essential that the property sought to be attached must be of defendant Therefore. The question does arise whether defen. Dants 2 and 3 are the owners of the ship m. v. Aaexm as according to Master D of the ship defendants 2 and 3 are not the owners of the ship. Mr. Saleem Akhtar Advocate, in this behalf has referred to me to the cable of plaiotlff'i dated 18-8-1977 addressed to defendants 2 and 3 (Annexure C' to the plaint , to show that defendants 2 and 3 are the owners of the vessel. In this cable the plaintiff had informed defendants 2 and 3 that if their dues were not paid within 24 hours action for arrest of their vessel presently at Karachi would be instituted immediately. However, in reply to this cable Advocate for defendants 2 and 3 denied that m. v. Azeem was owned by defendants 2 and 3. Then Mr. Saleem Akhtar referred to two more documents which the plaintiffs filed along with their affidavit-in-rejoinder in reply to the counter-affidavit filed in connection with the application under Order XB:XIX, rules 1 and 2, C. P. C.
15. This applicati:n is presently not before me for consideration. However, the two letters annexed to this a--davit and relied upon by Mr. Saleem Akhtar are also not of much help to him as the first letter is addressed by defendant 2 to Mr. Selman Naqvi informing him that they bar: decided to appoint him as Deck Cadet on board their ship m. v. Azeem. The statement "we have decided to appoint you as Deck Cadet on our board the ship m. v. Azaem" does not prove that defendants 2 and 3 are the owners of the ship. It could have been used even when defendants were not the owners but only chatterers or agents of the owners. In the second letter defendants 2 and 3 while addressing the plaintiffs have again used the words 'Our vessel m. r. Azeem'. Admittedly the plaintiffs had acted as agents of this ship for sometime and if defendants 2 and 3 were the owners of the vessel they must have got some documents in their possession which would show that they appoint the plaintiffs as the owners of the ship and not in any other capacity. No such document has been g so far produced before me. However, the Issue, 'Whether the defendants 2 and 3 are the owners of the ship or Anew Shipping Corporation are th owners as asserted by the Master of ship is, for the time being, clinched by the production of "the Lloyd Register of Shipping, Supplement and) New Entries to ibe 19-6-77 Register Book', wherein the following entry is made in respect of this ship f "Azeem (in Register as SUN YU Col. 1 Ahmad Call Sign to HOKT Amend Oifli. No. To 6996-SS Amend of Esd Ge Rdr to of Esd Ge Rdr Rt Col. 2 Amend Former name (a) to ex SUN YU-75 ex Pentelis A. Lemos- 70 ex Venezuela-65 Amend Owner(s) to Azeem Shipping Corp S. A. Amend Flag to Panamania Amend Port of Registry of Panama Col. 3 Tonnages now read T. MK gross 4930 not 2873 d--t. 5781 Col. 4 Add BV Col. 6 Amend Ha to 4 Ha (S.1) (12.4 14.7 x 6.4) ER 14.7 11.C s 4) Delete 14W Amend Derrick
(a) to Der 14 (3-5)."
16. This entry clearly shows that Aseem Shipping Corporation are tha owners of the ship. Unless subsequent to the printing the Register which was published on 10-4-1977, the ownership was changed for which presentlv time is no evidence before me.. Besides, defendant 1 ha produced along! with the counter-affidavit three documents in support of bit assertion that Azeem Shipping Corporation are the owners. The first is the Certificate of Registration dated 11-3-1976 which shows that on the date A=eem Shipping Corporation represented to be the owners of the ship m. v.
17. Azeem and that they bad paid the taxes for the ship up to 31x1 December, 1977 and the Certificate of Registration was for the period ending on I at week of December, 1977. The other two documents are the Telecommunication Certificate and Survey Certificate but they relate to the period prior to 1977, so I need not refer them in details. From the Certificate of Registration and the Lloyd Register of shipping, 1 am satisfied that till about the time of publication of the Supplement and New Enteriee to 1976-77 Register Hook of Lloyd Register of Shipping Azeem Shipping Corporation since no contrary evidence has been brought on record as to the change of ownerabip after the aforesaid date, I presume they continue to be the owners of the' ship.
18. Since it has not been established before me satisfaotorily that defendants I and 3 are the owners of defendant 1 the ship m. v. Azeem, it is not possible to order its attachment under Order XXXVIII, rule 5, C. P. C. I therefore vacate the ad interim order dated 8-9-1977 and also release the ship fromt arrest. The Port Authorities may be informed this order. s. A. a.Ad lnterlnt order vacated.