The plaintiffs, who carry on business of Ship repairs, Marine, Mechanical and Electrical Engineers, have brought this suit in Admiralty jurisdiction for the recovery of Rs. 2,20,961 against the defendant No. 1, which is a ship, and its former owner, defendant No. 2. It is averred in the plaint that the plaintiffs had repaired the said ship and supplied some material in the year 1956 on the instructions of defendant No. 5, who were then agents of defendant No. 2. Initially, the plaintiffs had submitted a bill of Rs. 4,08,393 against which a part-payment of Rs. 1,00,000 was wade. However, later the amount of bill is said to have been reduced to Rs. 3,20,961 and the claim now preferred has thus been made after allowing adjustment for the receipted amount. It is also an admitted position that since then the ship has been sold to defendant No. 6, and has been named as 'm. v.
Luctor-11', and she sails under Panaman flag.
2. The ship was ordered to be arrested on 12.1-1978 on plaintiff's application under rule 731 of the Sind Chief Court Rules (O. S.).
3. Mr. Ghulam Husain Ansari, learned counsel for the defendants Nos. 1, 3 and 4, contended that the suit itself was not maintainable in Admiralty jurisdiction since the plaintiffs had no maritime lien on the vessel, which admittedly had changed hands and belonged to defendant No. 6 under a different name. Mr. Hassan lnamullah, learned counsel for the plaintiffs, however, asserted that the plaintiffs had a subsisting maritime lien on the ship and the suit was maintainable. He relied upon an unreported order dated 22-11-1973, passed in Suit No. 444173 by the late Chief Justice of this Court Mr. Justice Tufail A.I A. Rehman.
4. The plaintiffs' case depends entirely upon their having a maritime lien on the ship and if the same is established the change of ownership would be immaterial since the maritime lien is something which adheres to the ship from the time the facts giving rise to such a lien came into existence and then continues binding on the ship until it is discharged.
5. After hearing the learned counsel for the parties and Mr. Noor Mohammad, who appeared as amlcuc curiae, I ordered the release of the ship on 18-1-1978 holding that, for the reasons to be recorded later, no maritime lien attached to the vessel known as "m. v. Luctor-I". The reasons for holding so, are as under :-
6. In order to appreciate the contentions raised by the learned counsel, it is necessary, first to make a brief reference to the background of the Admiralty jurisdiction of this Court, particularly, in view of the fact that certain Judgments of English Courts, arising out of Statutes passed after 1861, were also adverted to by the learned counsel. The Admiralty jurisdiction exercisable by this Court is the same which was formerly exercised by the High Court of Admiralty of England. The Admiralty jurisdiction of the English Court dates back from a Statute of Richard-II, (15) Ric. 2 (1391), which is regarded as the foundation of Admiralty Jurisdiction. In 1840 the British Parliament passed the Admiralty Court Act, 1840 and later the Admiralty Court Act, 1861, in order to extend the jurisdiction and improve the practice of the High Court of Admiralty of England. Farther changes in the Admiralty Jurisdiction of the English Courts were brought about by the Supreme Court of Judicature (Consolidation) Act, 1925 and the latest enact--ment governing such jurisdiction is the Administration of Justice Act, 1956, which lists the areas of jurisdiction of the High Court under eighteen paragraphs. The said Act elaborately defines the Admiralty jurisdiction of the High Court so as, amongst other things, to give effect by domestic legislation to two International Conventions in addition to specifying in detail the questions or claims within Admiralty jurisdiction, and the Act expressly preserves any other jurisdiction vested in the High Court of Admiralty immediately prior to commencement of the Supreme Court of Judicature Act, 1873. However, we are not concerned with the latter , enactments, as the jurisdiction of this High Court continues to be governed by the provisions of the Admiralty Court Act, 1861, as was made applicable to the Courts of law in British possession by the Colonial Courts of Admiralty Act, 1890. Section 2 of the said 1890 Act, laid down that every Court of law in British possession, which was for the time being declared in pursuance of the said Act to be a Court of Admiralty, or which, if no such declaration was enforced in the possession, had originally unlimited civil jurisdiction, shall be a Court of Admiralty with the jurisdiction mentioned in the Act and may for the purpose of that jurisdiction exercise all the power which it possessed for the purpose of its other civil jurisdiction, and such Court, in reference to the jurisdiction conferred by the Act, was referred to as a Colonial Court of Admiralty, Section 3 of the Act also laid down that the Legislature of British Possession could by any colonial law, declare any Court of unlimited civil jurisdiction in that possession to be a Colonial Court of Admiralty, and provide for the exercise by such Court of its jurisdiction under the said Act, and limit territorial and otherwise, the extent of such jurisdiction. The proviso to section 3, which is relevant is as follows :--- -- "Provided that any such Colonial law shall not confer any jurisdiction which is not by this Act conferred upon Colonial Court of Admiralty." "the repeal by the Ordinance of any of the Acts specified in the Schedule shall not affect the operation of such Act, in relation to Pakistan or to persons or things in any way belonging to or connected with Pakistan, in any Country to which the Pakistan (Consequential Provisions Act, 1956)
(4 and 5 Eliz. II Chapter 31) extends."
7. In the first place since reliance was placed on an unreported order passed in Suit No. 444/73, referred to above, it is necessary to examine the same. The relevant observations contained in the order read as under :---- "Now it seems to me that talk about privity of contracts between so artificially defined a person and a human being is to miss the essential difference between an action of persons and an action in rem. The ship is obviously not a human being and for most purposes not a legal personality. It is not for example like a Company, a person having legal entity, but it nevertheless is liable to be proceeded against in this very special jurisdiction, called the Admiralty jurisdiction. There is, therefore, no force in this contention either."
The above order was passed on the defendant's application under Order VII, rule 11, C. P. C. And two-fold contentions were raised in support of the application. Firstly, that the suit, itself, was not maintainable in Admiralty jurisdiction, and secondly that no cause of action accrued to the plaintiff because the repairs had been carried out at the instance of the previous owner of the ship and not the present owner and as such there existed no privity of contract between the plaintiff and the defendant No. 1. It is thus clear that the question of maritime lien was neither raised nor considered and, therefore, the said order cannot be relied upon in support of the proposition now under consideration.
8. As discussed above, the Admiralty jurisdiction of this Court is confined to the provisions contained in Admiralty Court Act, 1861 and the enlargement of the Admiralty jurisdiction of the English Courts has not affected the jurisdiction of this Court. This issue stands resolved by a decision of the B Privy Council in the case of Yuri Maru (1927 A C 906), in which it was held that the)
Supreme Court of Judicature (Consolidation) Act, 1925, did not serve toincrease the jurisdiction of the Colonial Courts. The case, therefore, is to be decided on the basis of the provisions contained in the Act of 1861 only. As the claim pertains to repairs carried out and necessaries supplied to the ship, the relevant sections governing the , case are sections 4 and 5, which are reproduced below :--- "Section 4.---The High Court of admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the Court.
Section 5.----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 twenty pounds 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."
The Fourth section quoted above, does not envisage any maritime lien because it only gives jurisdiction in respect of "any claim for building, equipping or repairing of a ship if at the time of institution of the cause the ship or the proceeds thereof are under arrest of the Court". The essence of jurisdiction, as per above section, is therefore, dependent upon the ship being under arrest of the Court at the time of the institution of the cause, which in this case the ship was not. As the right to proceed under the said section is dependent upon the wholly fortuitous circumstances of the ship being under the arrest of the Court is enough to preclude the idea of a maritime lien, which is a claim attaching to the res from the moment the obligation arises and travelling with res into whosesoever possession it may come. The claim with regard to the supplies is covered by the 5th section. A reading of the said section also completely ousts any consideration of maritime lien because it comes into play only when the owner of the ship is not domiciled in Pakistan at the relevant time. Because if there is an owner domiciled in Pakistan then, according to the said section, the Court of Admiralty will have no jurisdiction in the matter, while the essence of maritime lien is above anal contingencies, as the same attaches to the vessel. On the plain reading of sections 4 and 5 of the Act, 1861, it is, therefore, clear that plaintiffs' claim of maritime lien is not sustainable under the provisions of the said two sections. In this connection reliance may be laced on a judgment of the Privy Council in the case of the Two Ellens (1 Asp. Rep. Of Mar. Cas. 208) where the provisions of the aforesaid two sections came to be discussed at length by Lord Justice Mellish, who delivered the judgment of the Court. The reliance is also placed on Halabury's Laws of England, Vol. I at page 232 where in connection with the extent of jurisdiction of Admiralty Court, it is mentioned that :---- "The supply of goods and materials to and the repair of a ship does not confer a maritime lien. The repairer has, however, a common law possessory lien."
The other aspect of the case is that the ship in question admittedly belongs to defendant No. 6, and has been re-named as "m. v. Luctor-II". In the absence of any lien of the plaintiffs on the ship the defendant No. 6, who is its purchaser, cannot be mulcted with the claim. The learned counsel for the defendants relied upon the case of the Aneroid (3 Asp. Rep. Of Mar. Cas. 418). In the judgment of Sir. R. Phillimore referred to the case of the Two Ellens as being decisive on the question of maritime lien". The said judgment also supports the contention of the learned counsel for the defendants.
9. In the circumstances, it must be held that the plaintiffs have no maritime lien on the defendant No. .1, i.e. "m. v. Luctor-I". The order of arrest of the vessel dated 12-1-1978 has already been discharged by me as per short order dated 12-1-1978.