1. ' MUSHIR ALAM, J.---Through this appeal, the appellants have impugned order dated 14-12-2001 passed on C.M.A. No,3273 of 2001 in Admiralty Suit No,38 of 2001 whereby the application under rule 731 of Sindh Chief Court Rules ("SCCR") for the arrest of respondent, Vessel was dismissed.
2. ' It is the case of the appellants that they have purchased the subject consignment of Fertilizer in bulk from M/s. ConAgra Resources Europe Limited, London, U.K. (hereinafter referred to as shippers) on board of the respondent Vessel and Bill of Lading dated 20-9-2001 which according to them was a contract of carriage between the appellants and the shippers was endorsed to them. It is claimed by the appellants that in terms of clauses 47 and 58 of the Charter-party dated 14-9-2001 under which the cargo was being carried was breached inasmuch as the appellant cargo was loaded last from the port of ILYICHEVSK, UKRAINE and through it was agreed to be discharged first at Karachi, Pakistan without there being any enrooted calling and loading but the respondent Vessel not only deviated but also loaded other cargo that caused delay in reaching the port of discharge, causing loss in value and utility of Cargo, as same could not be used for the potato crop. It was claimed that suit arises from a contract of carriage by sea in terms of section 3(2)(h) of the Admiralty Jurisdiction of the High Court's Ordinance, 1980 and as the owner is liable in personam the vessel could be attached to answer the claim in rem.
3. ' On filing of the application, ship was arrested on-16-11-2001 the matter was contested by the owners of the vessel through Master. It was asserted that owners of the vessel have no privacy of the contract with the appellants and the claim if at all is between the voyage charterer i,e, shipper and time charterer under the charter-party between them.
4. ' Upon hearing the parties, learned Single Judge of this Court dismissed the application in view of the fact that the shipper himself was voyage charterer who entered into charter-party with the Spencer & Company the respondent owner and not with the owner of the vessel thereof and since the shipper himself was aware of the terms of the charter-party his case would be governed under the charter party alone and since the appellant is claiming under the shipper he is also bound by the terms of the charter party and not that of the Bill of Lading.
5. ' It was contended by the learned counsel for the appellant that the appellant is endorsee of the Bill of Lading which was signed by the Master of Vessel for and on behalf of the owner, appellant/plaintiff being stranger to any arrangement under the charter party between the shipper and the time charterer cannot be compelled to follow the charterer as against the owner of the vessel. In support of his contention, he cited (i) Carver on Bills of Lading, First Edition 2001, para. 4- 033, (ii) Scrutton on Charter-parties and Bills of Lading, Eighteenth Edition, page 56 and (iii) Lloyd's Law Reports 1991(2), The "Fewia" 1991, Volume 2, page 325.
6. ' As against above, Mr. Naeem Ahmed, learned counsel for the respondent contended that in this case shipper i,e, ConAgra Resources Europe Limited entered into voyage charter with the Spinner Shipping Company who admittedly are the time charterer and the subject consignment of bulk fertilizer was being carried under the terms of said charter-party and in terms of clause 27 of said charter-party the master was authorized to sign the Bill of Lading without prejudice to owners' rights under the charter-party and the dispute between the voyage charterer and time- charterer is subject to arbitration. He further contended that since the time charterer is not the owner of the respondent vessel nor they have any beneficial interest in said vessel action in rem for the arrest of the respondent, vessel is not maintainable. In support of his contention, he has relied upon the cases-law as reported in (i) PLD 1988 Karachi 515, (ii) PLD 1993 SC 88 and (iii) PLD 1994 SC 894.
7. ' We have heard the arguments and perused the record.
8. ' The appellant has invoked the admiralty jurisdiction of this Court under section 3(2)(h) of the Ordinance, which runs as follows:
(2) The admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, questions or claim--
(g) .....
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship; ' Mode of exercise of admiralty jurisdiction either in rem or personam is regulated under section 4 of the Ordinance, 1980 for the purpose of instant preceding section 4(4)(a) of the Ordinance, 1980 is relevant which reads as follows:
4. Mode of exercise of admiralty jurisdiction.---(1) Subject to the provisions of section 5, the admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam.
(4) In the case of any such claim as is mentioned in clauses (e) to (h) and (j) to (q) of subsection
(2) of section 3, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was when the cause of action arose, the owner or charterer of, or in possession or in control of the ship, the Admiralty jurisdiction of the High Court may whether the claim gives rise to a maritime lien on the ship or not be invoked by an action in rem against.
(a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person; or From bare perusal of the above-quoted provision it is clear that the exercise of admiralty jurisdiction in rem could be invoked against the ship or vessel if at the relevant time when action is brought majority shares in the ship are beneficially owned by a person against whom action in personam is maintainable.
9. In this case, the appellants themselves have relied upon the charter-party, which contains terms and conditions of affreightment. In paras.3 and 4 of the plaint, the appellants had rested their claim for damages on the breach of charter-party alone. Contention of Mr. M. Shaiq Usmani, learned counsel for the appellant that since the appellants/plaintiffs are the endorsee of the Bill of Lading duly signed by the Master of Vessel, prima facie, it presupposes a contract between the Master on behalf of the Vessel owner and the appellant, therefore, suit in rem is maintainable against the vessel. The contention seemingly attractive is true where the principal arrangement of affreightment is between the Shippers and Master of vessel without there being any knowledge of intermediatory charter-party. Such proposition is not true in case where the Bill of Lading obtained by sub-charterer from the Master of vessel was issued under time charterer. In the instant case, the shipper who is also voyage or sub-charterer had endorsed the Bill of Lading in favour of the plaintiff/appellant, where the shipper himself is the charterer then the Bill of Lading in hand of the charterer is merely a receipt for goods and such receipts, even if endorsed, as in the present case in favour of the consignee it will not change its complexion and will remain a receipt of a good. In fact the endorsee in such case will step in shoes of the Shipper and will be liable and entitled for all such obligation and rights in relation to affreightment contract as may be available to the shipper who incidentally in this case is also charterer of the vessel.
10. In the entire episode the owner or beneficial owner of the vessel does not come in picture.
11. Generally where the Bill of Lading is signed by the Master, presumption is that bill is owner's bill.
12. Such presumption indeed is rebuttable where it is successfully demonstrated nonetheless admitted by the appellants/plaintiffs that Bill of Lading has been signed by the Master was in fact, on behalf of the charterer it was intended to take effect as the charters Bill, clause 27(a) charter- party relied upon by the appellant reads as follows: "The Master is to sign Bill of Lading as presented without prejudice to the owners' rights under this charter-party."
13. ' In the case of Rewia, where the Bill of Lading was signed by the Master was considered, prima facie owner's bill. Such rule of presumption as stated above is rebuttable and is not attracted in the instant case for the reasons discussed above, as admittedly the plaintiff/appellant himself has relied upon and filed the copy of charter-party which authorizes the Master to sign a Bill of Lading for the charterer. In case where the charterer himself is the shipper as in the present case then as discussed above, such Bill of Lading is reduced merely to a receipt of goods shipped and such receipt when endorsed will only entitle the holder in due course to all rights of the shipper/charterer. By whatever angle the case is attended, one cannot establish any nexus in affreightment contract between the holder of such receipt and the owner of the vessel.
14. Under the circumstances, the conclusion drawn by learned Single Judge that the vessel cannot be attached in an action in rem as the appellants have hailed to show that the Time Charters are the owner or beneficially own majority shares or interest in the respondent vessel itself.
15. ' By our short order dated 21-12-2001, we had dismissed this appeal in limine alongwith the listed applications and these are the reasons for the same.