MUSHIR ALAM, J.--- CMA No. 6724/2003: Listed application under Order 1, Rule, 10, CPC, seeks deletion of the name of the defendant No. 1 i.e. KPT from the array of defendants in the plaint, on the ground inter alia; that no notice in terms of Section 87 of the KPT Act, 1886, has been served. Said application was fixed for order, Mr. Agha Faquir Muhammad, appearing for plaintiff, waives notice.
He contends that the bar in terms of Section 87 of the KPT Act is not attracted in the instant case as the plaintiffs have claimed relief against the apprehended and proposed act and not against the past acts or deed. He [ placed reliance on Abdul Rahim Khan v. The Trustees of the Port of Karachi (1988 CLC 2119). Mr. Shaiq Usmani learned counsel for the defendant does not dispute the legal position. He has also referred to Messrs Saleem Impex v. Central Board of Revenue through Chairman, Government of Pakistan, Islamabad and 2 others (1999 M LD 1728). He however, contends that in prayer No. 1, plaintiff has sought damages for the pat act done or purported to have been done by the KPT., such relief is hit by Section 87 of the Act. Agha Faquir Muhammad concedes to such statement. He states that, in view of such legal position, he does not press prayer No 1 as against the defendant No. 2, KPT for the time being. He further submits, such was regard other relief are concerned is maintainable against the defendant No. 2. In this view of the matter, Mr. Shaiq Usmani, submit that, if such relief of damages were dropped against KPT then, the suit would be competent. In view of the fact that plaintiff does not press relief No. 1 as against the. Defendant No. 2, KPT being hit by Section 87 of KPT Act, application is not pressed and is accordingly disposed of.
CMA No. 6083/2003 through the listed application, under Section 151, CPC read with Section 53, KPT Act, 1886 plaintiff seeks direction against the defendant No. 2 KPT to issue Port Clearance to the plaintiff's vessel M.T. Sea Angel, detained by the defendant No. .2 KPT. Counter-affidavit and affidavit-in-rejoinder, were been exchanged.
2. It was contended by Agha Faqir Muhammad, learned counsel for the plaintiff that, vessel M.T.
Tasman Spirit, carrying heavy quantity of oil, was grounded at the shore and in the waters of Pakistan on 27.7.2003. In order to rescue and salvage the vessel as well as the oil, the owners of the M.T. Tasman Spirit, the defendant No. 1, time charted various vessels from different ship-owners, including the plaintiff. Plaintiff's vessel "M.T. Sea Angel" was chartered/hired on 24.8.2003 for lighting the grounded vessel on 24.8.2003; work of lighting was completed on 9.9.2003. After completion of the job and expiry of the time charter, "Sea Angle" was to be redelivered to the plaintiff. According to the learned counsel, it was the responsibility of the defendant No. 1 to pay the port dues and other port charges for the plaintiff's vessel during the Charter-party, since such dues were not paid' by the defendant No. 1. The Captain of the "M.T. Sea Angel" under compulsion paid sum of over Rs.1 million. It is stated that amount paid by the plaintiff is in excess of the allegedly liability of the "M.T.
Sea Angel". He contends that plaintiffs vessels cannot be detained for the liability of any other vessel, detention of the plaintiff's vessel is without just cause. Plaintiff has suffered and is suffering heavy losses and incurring expenses on account of illegal detention and non-issuance of Port Clearance Certificate. According to Agha Faqir Muhammad, defendant No. 2 is obliged to issue Port Clearance to the plaintiff, as no amount is due and payable by the plaintiff. He, without prejudice, submits that, in case any dues are found payable, plaintiff is prepared to furnish Bank Guaranty in the sum of Rs. 1 million with the Nazir of this Court to secure the interest of defendant No. 2 if any.
3. Mr. Shaiq Usman, learned counsel appearing for the defendant No. 2 opposes the application. He contends that substantial amount is outstanding against the plaintiff, defendant No. 1 and other vessels that were hired by defendant No. 1, for the salvage operation. Mr. Usmani, further explained that, the defendant No. 1 Charter/hired number of vessels including the plaintiff's vessel "Sea Angel" 'to undertake lightening and salvage operation in respect of grounded vessel, through a local shipping agent that is M.M. Marine Service (Pvt.) Ltd., who were not made party to the proceedings.
According to him, Shipping Agent is obliged to clear and pay all the port dues and charges incurred by the KPT in providing salvage and other allied facilities and services for the grounded vessel M.T. Tasman Spirit. According to him, in case Port dues and other allied charges are not paid by or on behalf of any vessel under the same Shipping Agent then Port Clearance Certificate is not issued to other vessel under the same, Shipping Agent.. He further urged that, Port Clearance is not issued by the KPT but by the Custom Authority in terms of Sections 52 to 53 of the Customs Act. It contended that Shipping Agent as per practice in vogue, deposit "Late Past Deposit Account"
(LPDA). Shipping Agents are required to keep such account toping in order to meet the recurring liabilities. Whenever dues and charges are payable as regard any vessel under the agency of the Shipping Agent LPDA Account of the agent is debited. He, urged that over Rs.643,149,905.46 are due and payable on account of services rendered in the rescue and salvage operation of the grounded vessel "M.T. Tasman Spirit" owned by the defendant No 1 as detailed in the, bill annexed to the rejoinder and affidavit. He contends unless such charges and dues are paid defendant No. 1 is not oblige to issue "No Demand Clearance". He contends that, though the defendant is not obliged to apportion the amount due and payable, however, as a special case, if the plaintiff furnish Bank Guaranty to the extent of 1/5 of the above amount such certificate may be issued.
4. Agha Faquir Muhammad, learned counsel for the plaintiff, exercising right of rebuttal, contends, that Shipping Agent, is not the agent either of the vessel nor of the owner for the purposes of port dues or charges whatsoever. According to him the liability to pay such, port dues and charges are on the owner, or the Captain of the vessel. He further urged that in terms of subsection (5) of Section 2 of the KPT Act, Shipping Agent is not included within the definition of Master. According to him, in terms of Section 34 read with Sections 36, 38, 39 and 43 of the Port Act, 1908 liability to pay Port dues and charges squarely rest on the owner or the Captain of the. Particular vessel. He further urged that, Shipping Agent is agent for the benefit of the goods or cargo owner under the Customs Act, for a limited purposes and not otherwise. He contends that a Shipping Agent cannot contract or bind the vessel or her owner for the port dues/charges or liability of another vessel or her owner. According to him the duties of the Shipping Agent, are detailed in Section 55 of the Customs Act, which do not cast any obligation or duty on shipping agents as regards port dues or charges. In support of his contention he has relied upon Alliance Insurance Co. v. Burjourjee and Co. (PLD 1977 Kar. 765). He has drawn my attention to letter of defendant No. 2, dated 17.9.2003 demanding charges due against "M.T. Tasman Spirit" from its Shipping Agent, M.M. Marine Service (Pvt..) Ltd., in the sum of Rs.650,000,000. He has drawn my attention to page three of the bill annexed to the affidavit-inrejoinder, to show that amount due and payable on account of "M.T. Sea Angle" is only Rs. 660,484.81. The entry at serial No. 7 of page three of the Bill reads as follows:- D-Conservator--13-Sep-3" Rs. 660,484.81--Sea Angel--28 Aug to 8 Sep. 2003, including tugs, pilots launches.
Above entry was pointed out to demonstrate that, specified amount are claimed against the plaintiffs vessel "M.T. Sea Angel" even head of account under which amount due is claimed as mentioned. Likewise dues and charges payable by each vessel under different head is specifically mentioned against each vessel. He therefore, contends liability or dues of the plaintiff's vessel are specified. Plaintiff cannot be burden with the liability Of any other vessel owned or hired by the defendant No. 1. He therefore, contend that , once the plaintiffs have paid the port dues and charges on account of its vessel "M.T. Sea Angel" defendant No. 2 is not justified in withholding Port Clearance. In response to offer of Mr. Usmani, to furnish Bank guarantee for 1/5th of the total bill, for the issuance of requisite certificate. Agha Faqir, submit that the total value of the plaintiff's vessel is far below the 1/5th amount of the bill, which according to him is highly inflated. He without prejudice, however, submits that in case any dues or charges are legitimately found due and payable on account of "M.T. Sea Angel" the plaintiff is prepared to furnish Bank guarantee in the sum of Rs.. 1 million. He urged that if the M.T. Sea Angel" is not allowed to sail plaintiff, will be seriously prejudice and suffer further loss and would also be exposed to litigation and claims for failure to fulfil its forward commitments.
5. Mr. Taha appearing for defendant No. 1 referred to documents attached to his counter-affidavit to demonstrate that, defendant No. 1 have paid all port dues and charges for the vessels charted/hired for the salvage operation to the defendant No. 2. The detention of all such salvage vessels is illegal and without any just cause. According to him, such detention is engineered with male fide intention. Mr. Shaiq Usmani, objected to the documents being referred to by Mr. Taha on the ground that, the copy of the counter-affidavit was never supplied to him, Mr. Taha contends that, he reserves his rights to refer to such document, when other applications are taken-up for hearing. He undertook to supply counter-affidavit to Mr. Usmani. For the time being, he urged to rely on the documents and affidavit-in-rejoinder filed by the plaintiff. He referred to the letter of KPT dated 17.9.2003 filed alongwith the affidavit-in-rejoinder, to show that major charges and dues were claimed against "M.T. Tasman Spirit" dues and charges as against various vessels charted by the defendant No. 1 are very nominal, same are mentioned against each such. Vessel. According to him, more then the amount due against each charted vessel has been paid, as is evident from Annexure 'E' to the plaint. He, therefore, supports the application of the plaintiff.
6. Heard the arguments and perused the record.
7. Facts as could be deciphered from the pleadings of the parties, appears to be that, the defendant No. 1 charted five vessels including the plaintiff's vessel "M.T. Sea Angel" for salvage of the Cargo as well as "M.T. Tasman Spirit" grounded in the waters of Pakistan.
8. Contention. Of Mr. Shaiq Usmani, that liability of one vessel under the agency of same agent would be the liability of all other vessels engaged the attention of this Court. In order to appreciate the arguments of all the learned counsel on this score, it will be beneficial to browse the provisions of KPT Act, 1886, Port Act, 1908 and so also the provisions of the Customs Act, 1969.
Section 52 of the KM- Act, reads as follows:- "52. If the master of any vessel in respect of which any tolls, dues, rates, charges or penalties shall be payable under this Act, or any bye-laws made in pursuance hereof refuses or neglects to pay the same or any part thereof on demand, it shall,' be lawful for the Board to distrain or arrest of their own authority such vessel, and the tackle, apparel or furniture belonging thereto, or any part thereof and detain the same until the amount so due shall be paid.
And in case any part of the said rates or penalties, or of the costs of the distress or arrest or of the keeping of the same, shall remain unpaid for the space of fifteen days next after any such distress or arrest shall have been so made, the Board may cause the vessel, or other thing so distrained or arrested, to be sold, and with the proceeds of such sale may satisfy, such tolls, dues, rates, charges or penalties and costs of sale remaining unpaid, rendering the surplus, if any, to the master of such vessel on demand.
Above provision fixes the liability to. Pay any tools, rates, charges or penalty on the master of any vessel. In case same are not paid, the Board of Port Trustee may cause the vessel so distrained or arrested and sold to satisfy the outstanding tolls, dues, rates, charges, penalties.
9. The duty of the Board is defined under Section 53 of the KPT Act, which reads as follows:- 53.-- If the Board shall .Give the other officer of Government, whose duty is to grant the port- clearance of any vessel, a notice, stating that an amount therein specified is due in respect of tolls, dues, rates, charges or penalties chargeable under this Act, or any bye-laws or orders made in pursuance hereof, against such vessel or the owner or master of such vessel in respect thereof, such officer shall not grant such officer shall not grant such port-clearance until the amount so chargeable shall have been paid.
From the bare perusal of the above, provisions of KPT Act, it is apparent that, the dues and charges are to be specified in respect of a particular vessel. The liability to pay all dues and charges is on the master or. Owner of the vessel, without payment or securing payment of such dues and charges, port clearance may not to be granted.
10. Under Section 52 of the K.P.T. Act, 1886 the conservator could only detained a vessel till such time port dues are not paid by any particular vessel. From the record it appears that a sum of Rs.1,005,000.00 were paid and deposited in LPD Account against the due of "M.T. Sea Angel" as is apparent from Annexure 'E' to the plaint.
11. Relevant provisions of the Ports Act, 1908 reads as follows:- "Section 38.-- The person to whom any dues, fees or other charges authorised to be taken by or under this Act are paid shall be grant to the person paying the same a proper voucher in writing under his hands, describing the name of his office, the port or place at which the dues, fees or other charges are paid and the name of the name, tonnage and other proper description of the vessel in respect of which the payment is made.
Section 39.-- (11.-- Within twenty-four hours after the arrival within the limits of any port subject to this Act, of any vessel liable to the payment of port-dues under this Act, the master of the vessel shall report her arrival to the conservator of the port.
(2) A master failing without lawful excuse to make such report within the time aforesaid shall for every such offence bee-punishable with fine which may extend to one hundred rupees.
(3) Nothing, in this section applies to tug-steamers, ferry steamers or river steamers playing to any form any of the ports subject to this Act.
Section 40.-- If any vessel liable to the payment of port-dues is in any such port without proper marks on the stem and stern posts thereof for denoting her draught, the conservator may cause the same to be ascertained by means of the operation of hooking, and the master of the vessel shall be liable to pay the expenses of the operation.
Section 42.-- If the master of any vessel in respect of which any port-dues, fees or other charges are payable under this Act, refuses or neglects to pay the same on demand, the authority appointed to receive such port-dues, fees or other charges may distrain or arrest the vessel, and the tackle, apparel and furniture belonging thereto or any part therefore, and detain the same until the amount due is paid; and in case any part of the port-dues, fees or other charges or of the costs of the distress or arrest or of the keeping of the vessel or other thing distrained or arrested, remains unpaid for the space of five days next after any such distress or arrest, may cause the vessel or other thing distrained or arrested to be sold and with the proceeds of such sale may satisfy the port-dues, fees or other charges and the costs including the costs of sale remaining unpaid, and shall render the surplus, if any, to the master of the vessel upon demand.
Section 43.-- The Officer of [the Government] whose duty it is to grant a port-clearance for any vessel shall not grant such clearance-- (al until her owner or master, or some other person, HAS PAID OR SECURED to the satisfaction of such officer the amount of all port-dues fees and other charges, and bf all fines, penalties and expenses to which the vessel or her owner or master is liable under this Act.
Under the Port Act, 1908 Sections 39, 40, 42 and 43 as reproduced above are relevant, again, the liability to pay port dues is on master of vessel. Consequence for not payment of the port dues, are provided for in terms of Sections 44 and 45 thereof, master is punishable under Section 45 with fine which may extend five time the amount of the sum due.
12. Provisions relating to the shipping agents in relation to the vessel under Section 55 of the Customs Act reads as follows:- 55.-- Power to refuse part-clearance to vessels or permission for departure to other conveyance.-- " (1) The appropriate officer may refuse to give port-clearance to a vessel or permission for departure to any other conveyance until".
(a) the provisions of Section 53 or Section 54, as the case may be, have been complied with;
(b) all station or port dues and other charges and penalties payable in respect of such vessel, or by the owner or master thereof, or in respect of such other conveyance by the owner or person- incharge thereof and all taxes, duties and other dues payable in respect of any goods loaded therein, have been duly paid, or their payment secured by such guarantee or by such deposit at such rate, as such officer directs;
(c) where any export goods have been loaded without payment or securing payment as aforesaid of all taxes, duties and other dues payable in respect thereof or in contravention of any provision of this Act or the rules or of any other law for the time being in force relating to export of goods--
(i) such goods have been unloaded; or
(ii) where the appropriate officer is satisfied that it not practicable to unload such goods; the person-in-charge or h is duly authorised agent has given an undertaking, secured by such guarantee or deposit of such amount as the appropriate officer may direct, for bringing back the goods of Pakistan;
(d) The agent, if any delivers to the appropriate officer a declaration in writing to the effect that he will be liable for any penalty imposed under clause-24 of the Table under sub-section (1) of Section 156 and furnishes security for the discharge of the same;
(e) The agent, if any, delivers to the appropriate officer a declaration in writing to the effect that such agent is answerable for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in the import cargo in respect of such goods.
(2) An agent delivering a declaration under clause (d) of sub-section (1) shall be liable to all penalties which might be imposed on the person-in-charge of such conveyance under clause-24 of the Table under sub-section (1) of Section 156 and an agent delivering a declaration under clause (e) of sub-section (1) shall be bound to discharge all claims referred to in such declaration.
From the bare perusal of the scheme of relevant provisions of the, KPT Act, Ports Act and Customs Act, referred to above, it is apparent that the port dues or other charges leviable are squarely the responsibility of the master or owner of the vessel. Under the Port Act, Port dues and charges could be paid (Section 38) or secured (Section 43(1)) by any person. Even under the Customs Act, Section 55, as reproduced above, Port clearance, is subject to the payment or securing such payment by such guarantee or by such deposit at such rate, as such officer directs, is on the master or owner of the vessel. The liability of the shipping Agent, in terms of the Customs Act, is confined to the extent of short landing or delivery of goods or cargo. Such Liability is for the benefit of the cargo owners and not for the port-dues and charges. The liability of the Shipping Agent is only in respect for damages or short delivery, only when the owner of goods is able to establish the same. The liability is assumed by the Shipping Agent pursuant to a declaration. Which he is bound to deliver to the Customs Authorities in, terms of Section 55(1)(e) read with sub-section (2) of the Customs Act.
13. In terms of Section 21 of the Port Act, it is the master who is liable for the consequences if any ballast, rubbish or such other things or so discharges any oil or water mixed with oil. It is the master of the vessel from which the same is so cast, thrown or discharge is liable to be punished and expenses are recoverable from the master for removing the same.
None of the Acts, referred to above, define Shipping Agent. Under the Port Act, reference is made to persons paying the dues. It is only under the Customs Act, reference is made to Shipping Agents.
The Shipping Agent under the Customs Act is made answerable for the discharge of all claims for damages or short delivery that may be established by the owner of the goods. In none of the three Acts, referred to above, Shipping Agent is made answerable or liable to face the consequence or to bear the liability of ports-dues or charges. In the case reported in PLD 1977 Kar. 765, this Court had occasion to examine the liability of Shipping Agents as defined under the Customs House Agents (Licensing) Rules. It was held as:- An examination of the aforesaid provisions of the Act and the Rules, clearly spell out the statutory obligations and scope of the authority of a shipping agent. It is quite obvious that such agent is responsible for performing specified duties and discharging specified obligations, for which he is personally liable under the Statute, whatever may be his rights for contribution or compensation against the principal. But in carrying on generally the business of a particular principal by exercise discretion as an agent doing business on behalf of his principal. The shipping agent provides his services to all and sundry who may chose tb avail the services, so that he does not act for a single principal but does his own business in his own name for his client.
Liability of shipping agent was also considered in Premier Insurance Co. v. Mackinnon Mackenzie and Co. (2002 PCTLR (Kar) 1104). It was held that liability of Shipping Agent only crystallises and become coextensive once such liability is established through Court of law or admitted by the owner (of vessel).
14. A shipping agent, may in course of his business represent the interest of various vessels or owners or principle, in doing so he is acting as general agent. By representing several Principles (i e.
Vessels or owners of vessel), it does not mean that his acts deed carried out for one principal is binding on other principal or the liability of one principal could be foisted or thrusted upon other principal represented by same agent.
15. Shipping Agent, as referred to by Mr. Shaiq Usmani, in terms of the Customs Act is provided for under Section 207 and 208 of the Custom's Act. Responsibility of such agent is only confined for the obligation and performance of specified duties for which he is personally liable under the Customs Act alone. Liability of Shipping Agent, under Section 55(d) and sub-section (2) of Customs Act, as discussed above is confines to the claim of short landing of the cargo carried on board by the vessel or the liability for any penalty imposed under Clause-24 of the table under sub-section (1) of Section 156 of the Custom's Act.
16. As discussed above, in none of the Statute or Acts referred to above no where the shipping agent is made liable to pay the port-dues.
17. No material was brought on record to .Show or to demonstrate that plaintiff No. 1 or her Agent M.M. Marine Services (Pvt.) Ltd. Under took to discharge the liabilities of any other vessel under its agency.
18. Contention of Mr. Usmani, that as per practice in vogue, the Shipping agent is liable to pay port- dues of all the vessels under its agency, such wide proposition in absence of any evidence cannot be acceded to. Even otherwise, practice or custom will give way to specific provisions of relevant statute discussed above. As discussed above in the context of the Port Act and KPT Act, Shipping Agents may act as a general agent, for various principals or the vessels to facilitate the dealing with Port, authority arid other State functionaries, as a matter of convenience. As such Shipping Agent, in a local environment is more conversant with the prevalent laws, practice and procedure of any local area. The liability .Of the Sipping Agent may be extended to the extent it is spelled out from the agency agreement of imposed by any statutory provision.
19. From the scheme of the all Statutes/Acts referred to above, it can safely be deduce that each vessel, through master or owner is liable to discharge and pay port-dues and charges. Liability of one vessel or principal cannot be enforced against the Shipping Agent unless of course such agent undertook or is bound by some declaration as is assumed under Section 55(d) of the Customs Act.
Even if a shipping agent undertake byway of declaration, to pay port-dues or assumes such liability then too, such undertaking or assumption of liability will not extent to the liability or responsibility of another principal or vessel under its agency.
20. I have examined the bill issued by the KPT dated 17.9.2003 placed on record alongwith the affidavit-in-rejoinder filed by the plaintiff. The covering letter, shows that the "detailed statement of charges due against M.T. Tasman Spirit". The break-up of the amount claimed against various head shows that major portion of the amount relates to the services rendered either in the shape of hiring of appliances, KPT manpower, material supplied, medical services,. Rendered to M.T.
Tasman Spirit. Port dues and other charges in respect of five vessels are detailed separately. Dues and charges shown against plaintiff's vessel M.T. Sea Angel (wef. 28.8.2003 to 8.9.2003) are shown to be only Rs.660,484.81. Such dues include tug pilot and launches.
21. In view of the above discussion amount claimed against M.T. Tasman Spirit and or other charted/hired vessel cannot be foisted upon the plaintiff's vessel "M.T. Sea Angel".
22. From the discussion made above, I am of the view that shipping agent of various vessels is not responsible for payment of the dues of the vessel unless it is otherwise undertaken by such agent.
In any case, even it is presumed that agent undertook to pay dues of on behalf of any particular principal or vessel, such undertaking on behalf of one Principal or vessel cannot be enforced against another Principal or vessel owned by different person. Any other vessel may be arrested, under the Admiralty jurisdiction of this Court only when it is prima facie shown that other vessel is also beneficially owned by the same owner against whom a maritime lien exist, no such plea was raised nor it is shown that M.T. Sea Angel is beneficially owned by the owners of M.T. Tasman Spirit.
23. ,Plaintiffs have made out a prima facie good case for the release of its vessel. The defendant No. 2 is accordingly directed to issue No. Demand Certificate, to enable the plaintiff to furnish the same to the Custom Authorities in terms of Section 55(1)(b) for obtaining port clearing. However, as offered by the plaintiff and subject to, furnishing of security by way of Bank guarantee in the sum of Rs. One million with the Nazir of this Court. Immediately on furnish such Bank guarantee the defendant No. 2 (KPT) shall issue the requisite certificate to the plaintiff in respect of "M.T. Sea Angel".
24. It is however, made clear that the charges for the Bank Guarantee which the plaintiff are called upon to furnish, initially shall be born by the plaintiff, liability and cost of furnishing such Bank Guarantee are however,. Subject to the final determination of the dues or liability if any of the plaintiff and would be counted for towards cost of the suit, if any awarded. Application; in terms of the above stand disposed of. .