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Petitioner: Messrs ALEXANDER G. TSAVLIRIS & SONS VS Respondent: m.v. RICE TRADERS and others
Court Name: Sindh High Court Judge(s): Saleem Akhter Title: Messrs ALEXANDER G. TSAVLIRIS & SONS vs m.v. RICE TRADERS and others Case No.: Suit No.316 of 1984 Date of Judgment:1984-12-17 Reported As: 1985 CLC 1355 Result: Prayer misconceived
Judgment ORDER ' The plaintiffs filed an application under section 20 of the Arbitration Act, 1940 before the Admiralty Jurisdiction of this Court seeking the following reliefs:- (i) Order defendants to file the agreement in Court; (ii) Refer the Matter of Salvage Claim to Committee of Lloyds at London for Arbitration; (iii) Direct defendants to furnish security in the sum of US $250,000 and 75,000, respectively to satisfy plaintiff's maritime lien; (iv) Arrest and detain the vessel and the specified cargo until the required security is furnished; (v) In case of sale of vessel, a sum of US $325,000 be kept as security for satisfaction of plaintiff's maritime lien which has priority over all other claims; (vi) Award costs, interest and any other relief or reliefs that this honourable Court may deem fit and proper in the circumstances of the case. ' The plaintiffs, owners of TUG APLLON under an agreement executed by the Master of m.v. RICE TRADERS, the defendant No.1, in Lloyds Open Standard Form (No Cure No Pay) rendered salvage service to m.v. RICE TRADER which ended on 15-2-1984 when the said vessel (defendant No.1) was delivered to her Master. In terms of clause (4) of the salvage agreement the plaintiffs notified the Committee of Lloyds, London their remuneration for services inclusive of cost, expenses and interest amounting to $250,000 for which amount the defendant No.1 was to give security within 14 days of the termination of salvage service. The defendant No.1 has failed to provide the same so far. The plaintiffs have claimed that the cargo owners of the cargo carried on board m.v. RICE TRADERS under bills of lading Nos.2,3,5 and 7 issued at Moputo are also liable to pay and to give security for their claim as they have maritime lien over the vessel and the cargo as well. Alongwith
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the suit the plaintiffs had filed an application C.M.A. No. 495/84 under section 41 of the Arbitration Act, 1940 praying for the arrest of m.v. RICE TRADERS. On 22nd May, 1984 the plaintiffs also filed another application C.M.A. No.570/84 under section 151 Code of Civil Procedure read with rule 750 of the Sind Chief Court Rules (O.S.) praying that Caveat may be entered against release of the property under bill of lading No.12 or in the alternative order the arrest of the said ship and cargo until security in the sum of Rs.25$ is provided by the owners. On 17-5-1984 notice of application for arrest was issued, but nobody appeared on 24-5-1984 and the ship was arrested. ' The office had raised at the earliest, the objection regarding maintainability of such action in the Admiralty Jurisdiction, but as none of the defendants have appeared and in view of the successive applications filed by the plaintiffs, and the orders passed thereon, it remained undecided. I have heard Mr. Sarwana on maintainability of the application under section 20 of Arbitration Act which has been registered as a suit. The learned counsel has contended that the claim of the plaintiffs attracts Admiralty Jurisdiction of this Court and therefore, the plaintiffs are entitled to file this application. Section 3 subsections (1) and (2) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 hereinafter referred as the Ordinance which confers and defines Jurisdiction and Admiralty causes is reproduced as follows:- 3.Admiralty Jurisdiction of the High Court.--(1) The Sind High Court and the High Court of Baluchistan shall have and exercise, within their respective territorial jurisdiction, Admiralty juris - diction as is in this Ordinance provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined. (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, question or claim-- (a) any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship; (b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship; (c) any claim in respect of mortgage of or charge on a ship or any share therein; (d) any claim for damage done by a ship; (e) any claim for damage received by a ship; (f) any claim for loss of life or personal injury sustained in conse quence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults, the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship; (g) any claim for loss of or damage to goods carried in a ship; (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; (i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a port, including any claim arising by virtue of the application by or under section 12 of the Civil Aviation Ordinance, 1960 (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo; (j) any claim in the nature of towage in respect of a ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port;
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(k) any claim in the nature of pilotage in respect of a ship or an aircraft; (1) any claim in respect of necessaries supplied to a ship; (m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues; (n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be recovered; (o) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship; (p) any claim arising out of an act which is or is claimed to be a general average act; (q) any claim arising out of bottomry or respondentia; (r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section. ' The learned counsel for the plaintiffs has referred to clauses (a) to (r) of section 3 subsection (2) and contended that except in clause (i) in all other clauses the words "any claim" has been used, therefore, the addition of the word 'action' in clause (i) contemplates any proceeding relating to salvage of life or ship and would cover the present proceeding. The learned counsel has referred to Bharat Bank Ltd. and another v. Ruby General Insurance Co. Ltd. AIR 1951 Punjab 97 in which the word 'action' used in an insurance policy has been held to cover an application under section 20 of the Arbitration Act. ' Reference was made to the Halsbury's Laws of England Vol. I Edition III Para. 1 where the word action has been defined as follows:- "An 'action,' according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be 'the legal demand of a right,' or 'the mode of pursuing a right to judgment'. (a) It implies the existence of parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a Court having power to enforce such a right. ' In its wider meaning the term includes both civil and criminal proceedings; it was frequently so used by old writers (b), and the House of Lords has recognized that it is a generic term, ), inclusive, in its proper legal sense, of suits by the Crown, and ) comprehending, in legal phraseology, every suit, whether by a subject, or in the name of the Sovereign, or by the Attorney-General on behalf of the Crown (c). It is, however, generally used in a more restricted or popular sense as denoting a civil action commenced by writ or plaint (d)." ' In my view the word action means any process by which juris diction of the Court is invoked and process of law is set in motion or interrupted. It has a wide meaning and used in a generic sense to include law suit, application, petition or resorting to any proceeding in a Court of Law for enforcement of any right or claim entertainable in law. Having understood the general meaning of the word 'action' it is to be considered in what sense it has been used in the Ordinance. Reference
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can be made to section 2(c) of the Ordinance where the word 'Causes' has been defined as follows:- "Cause includes any cause, suit, action, or other proceedings in the High Court in the exercise of its Admiralty Jurisdiction." ' In section 3(2) (a) to (r) of the Ordinance the causes, questions or claims which fall within the Admiralty Jurisdiction of the High Court have been specified., These clauses specifically define subject-matters in respect of which Admiralty Jurisdiction can be exercised. ' Section 4 of the Ordinance provides the mode of exercise of Admiralty Jurisdiction. It can be invoked by an action in personam or by an action in rent. `'Section 4(2). specifically provides that in cases mentioned in clause 0) Of subsection (2) of section 3 or cases where maritime lien or charge of any amount on any ship is claimed, the Admiralty Jurisdiction may be invoked by action in rem. Again section 5 of the Ordinance provides for entertaining of an action in personam. Section 6 of the Ordinance provides that no action shall be brought before the High Court to enforce a maritime lien unless proceedings therein are commenced within two years. From a review of the provisions of the Ordinance it is clear that proceedings in Admiralty Court can be initiated and the Admiralty Jurisdiction can be invoked by an action which may be in rem or in personam. Therefore, the word 'action' in clause (i) of subsection (2) of section 3 refers to suit, application, petition or any proceeding by which a party invokes the jurisdiction of the Admiralty Court or sets in motion the process of law or intervenes in the proceedings for obtaining relief or making any claim in respect of causes, questions and matters which fall within the Admiralty Jurisdiction of the Court as provided by the Ordinance. ' Under clause (1) the claim should relate to services rendered for salvage of life on ship, cargo on board the ship or the ship itself. It is not necessary that the salvor should render service on the high seas. If such service has been rendered on the high seas or in the D internal waters or territorial waters or in the port, the salvors will be entitled to maintain a claim under the Admiralty Jurisdiction. It is pertinent to keep clearly in mind that a maritime lien can be enforced or executed by Admiralty Court in an action in rem. Where such suits are instituted other lien claimants can intervene to establish their claim and even ask for determination of priorities. Under section 4(8) the Admiralty Court is competent to determine the questions relating to the title to the sale- proceeds and priorities amongst the claimants in appropriating the sale-proceeds. In pending proceedings any maritime claimant can intervene by filing an action. It is to be seen whether an application under section 20 of the Arbitration Act can be made before the Admiralty Jurisdiction of the High Court. Under the statute and practice governing the exercise of Admiralty Jurisdiction it can be invoked by, filing action in personam or action in rem. Such actions, are initiated by filing a suit in the Admiralty Jurisdiction of the.,High Court in respect of subject-matter, claims and causes which have been specified in section 3 sub section (2) of the Ordinance. These provisions do not contemplate initiation of an independent proceeding by filing an application under section 20 of Arbitration Act or for reference to arbitration any matter which may be covered by any of the clauses of sub section (2) of section 3. The proceeding for referring the matter to arbitration is completely different from admiralty action, where the Admiralty Court is called upon to adjudicate upon the claims, causes and questions specified in section 3 of the Ordinance. The only question involved in an application under section 20 is whether the Court should refer the matter to the Arbitrator in terms of the arbitration agreement. This question can hardly attract the Admiralty Jurisdiction specified in section 3 subsection (2) of the Ordinance. ' An application under section 20 of Arbitration Act can be filed before a Court as defined under section 2 sub-clause (c) of the Arbitra tion Act. The word 'Court' has been defined as "Civil Court having Jurisdiction to decide question forming the subject-matter of the reference, if the same had been the subject-matter of the suit". Before vesting jurisdiction in a civil Court it is necessary to
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ascertain whether a suit based on the subject-matter of reference can be entertained by the civil Court. Therefore it is the Civil Court of general jurisdiction which is competent to entertain application under section 20 of Arbitration Act. The Court exercising special jurisdiction cannot be termed as a 'Court' within the meaning of section 2(c) of the Arbitration Act competent to entertain application under section 20. In Mangi Lal Fateram Mahesari and another v. Devicharan Mengellal and another AIR 1949 Nag. 110, it was held that an Insolvency Court is a special Court, and not a civil Court within the meaning of section 2(c). In Sithal Das Khanna v. Srinath Das Khanna and another AIR 1949 All. 360 it was held that the term 'Court' as defined in section 2(c) of Arbitration Act does not include the Revenue Court. In this view of the matter the Court exercising the Admiralty Jurisdiction is not a Court within the meaning of section 2(c) of the Arbitration Act, and therefore, an application under section 20 of the Arbitration Act cannot be filed under the Admiralty Jurisdiction of the High Court. It can be argued that the subject or reference relates to a cause which is entertainable by the Admiralty Court. However, the fact remains that as the Admiralty Court is not a Court, as defined under section 2(a) of the Arbitration Act it has no jurisdiction to entertain such application. ' I would like to further consider whether in view of the Ordinance of 1980 such an application is entertainable, under the Admiralty Jurisdiction of the High Court. The juridiction of the Admiralty Court can -be exercised in respect of causes, claims and questions specified in section 3(2) of the Ordinance and such jurisdiction and relief provided under the Merchant Shipping Act or any other law. The Admiralty Court can exercise such jurisdiction which was vested in the High Court before the promulgation of the Ordinance (1980). If besides the jurisdiction conferred by the Ordinance any other claim, cause or action not provided in the Ordinance could be entertained by the High Court in exercise of the Admiralty Jurisdiction then the same can be entertained even now. 'The question which falls for consideration is whether before the promulgation of the Ordinance of 1980 the Admiralty Court had the jurisdiction to entertain and adjudicate application under section 20 of the Arbitration Act. To get a proper reply one has to assess the historical background of the establishment of the Admiralty Courts and jurisdictions conferred on them from time to time The history of establishment of Admiralty Court goes back to the year 1890 when Colonial Court of Admiralty Act, 1890 (53 and 54 VICT.C.27) was enforced and Colonial Courts of Admiralty were established in India. Such Colonial Courts of Admiralty were vested with jurisdiction over the like places, persons, matters and things as Admiralty Jurisdiction of the High Court in England had at that time. In pursuance of this Act the Colonial Courts of Admiralty (India) Act, 1891 (XVI of 1891) was promulgated and by section 2 following Courts in India were declared to be Colonial Courts of Admiralty:- (1) the High Court of Judicature at Fort William in Bengal; (2) the High Court of Judicature at Madras; (3) the High Court of Judicature at Bombay; (4) the Court of the Recorder of Rangoon; (5) the Court of the Resident at Aden; and (6) the District Court of Karachi. ' It seems that with the passage of time certain amendments were made and Courts at serial Nos.4 and 5 were deleted. In 1949 Admiralty Courts at serial Nos. 1, 2, 3, and 6 existed. By Governor- General Order 4 of 1949 Colonial Court of Admiralty (India) Act, 1891 was amended and word 'India' in the title and section 3 was substituted by Pakistan. In section 2(1) the words "Fort William in Bengal" was substituted by Dacca, and clauses (2) and (3) were omitted. Therefore, there remained two Courts of Admiralty in Pakistan viz. the High Court of Judicature at Dacca and the District Court of Karachi which under the provisions of Sind Courts Act, 1928 was the Chief Court of Sind.
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' By the Colonial Courts of Admiralty (Pakistan) (Amendment) Act, 1953 the Colonial Courts of Admiralty (Pakistan), 1891 was amended and the word Colonial was deleted. For section 2 a new section was substituted declaring the following Courts to be the Courts of Admiralty:- (1) the High Court of East Bengal, (2) the High Court in Lahore, (3) the Chief Court in Sind, (4) the Judicial Commissioners Court in the North-West Frontier Province, (5) the Judicial Commissioner's Court of Baluchistan, (6) the High Court of Judicature for the State of Bhawalpur, and (7) the High Court of. Khairpur State. ' In 1955 by High Court of West Pakistan (Establishment) Order, 1955 High Court of West Pakistan was established and the aforestated Courts at serial Nos. 2 to 7 ceased to exist. The High Court of West Pakistan was vested with all the jurisdiction which the High Court of Judicature at Lahore exercised immediately before its establishment. The Karachi Bench however retained the Original Civil Jurisdiction as provided by section 8 of the Sind Courts Act, 1926. The High Court of West Pakistan therefore exercised the same Admiralty Jurisdiction which the Admiralty Courts were exercising from 1891. It may be mentioned here that by Ordinance No.XIII of 1969 the Colonial Courts of Admiralty Act, 1890 was repealed. On dissolution of West Pakistan by High Court (Establishment) Order, 1970 (P.O. 8 of 1970) apart from the Lahore High Court, the Peshawar High Court, for the Provinces of Sind and Baluchistan the High Court of Bind and Baluchistan was established with its principal seat at Karachi. All these Courts exercised the same jurisdiction, powers and authority including the Admiralty Jurisdiction as the High Court of West Pakistan exercised before 1-7-1970. ' From 1-12-1976 by Baluchistan and Sind (High Court.) Order, 1976 (P.0.6 of 1976) for the Province of Baluchistan, High Court of Baluchistan and for the Province of Sind, High Court of Sind were established. Those High Courts have {{ BLUR PAGES}} the same power, authority, Jurisdiction as the High Court,of Sind and Baluchistan exercised immediately before 1-12-1976. From this historical resume it is clearly established that the High Court of Sind has inherited the same Admiralty Jurisdiction which was exercised by its predecessor Courts. Finally, the Admiralty Jurisdiction of High Courts Ordinance, 1980,(Qrder No. XLII of 1980) was promulgated and the Sind High Court wai'vested with the Admiralty Jurisdiction as provided by the Ordinance. Therefore, presently the Admiralty Jurisdiction of this Court is to,,Ir gltlysrpcd by the provisions Of-the Ordinance. "1336,-:61.4 brts r-38 ' Now reverting ttiltIppbstatotes,goVkrning the Admil4d14! Jurisdiction 4t,islO be noted that 119401itheApeomulgation of the Ordinance of f1`980 ,MeLA4miralty Courts-.-411f,,APIII.00ttettry had the same jurisdictielilvelkiCh High Coupt rAniugeglarorl exercised in the year 28914 urktergthe sAtkt,W.e or otherwisgq,:,lo ttltebyear::1891 there were two statittee'haftiely 114'49,W10tY Court Act1411441tgltagii,4 VICT. C.65) and kdtoittAtit court lytt,1q61 (24 vipx-C,3,104f40 the' year 19259th et:Admireltr Jurisdiction o oa. High cqurt)inDEnglantmweagenlarged buf 48)Ofefsitiotietiplicable to British India therefFe,that could90r, exercised by the CoUrt8tfir PaRttcp 'It is -bektioro point - qTht, pare that itiftke"livti Acii2lof ) epee y the.. of 1980:"Settion -21 of IhaAthirailiyo rt fef 1861 reads aS'follows:- tar;:sn:,_
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"All the powers possessed, la any of, the superior Courts of common law or any judgeJ46Creof, under the Common Law Procedure Act, 1854(d), and otherwise, with regard to references to arbitration, proceedings thereon, and the enforcing of awards of arbitrators, shall be possessed by the judge of the High Court of Admiralty in all causes and matters depending in the said Court, and the registrar of the said Courtr4f,:)1Vdmiralty shall possess as to such mattersthe. same powers as are possessed by the masters' of 'Aire said stiperior Courts of common law in relation theretoi'at8 sti3 By this section in pending jurisdiction to refer to arbitra of the award0i/44814Sitrat Law or the Judge lin (!fet tutedlbY the ArbitrAti n.1? iltati'l4hit such pending proceedilige:':. for referring -the' could' Ws initiiiiecl4dr in taken only in -'o'iieik'!'w This ieads to the'cciii Cabiet 'then on aniiip0 ace+ `the matter ., Id* tlile.q9114 permits 'enficir Collihic'have beet; a before'ifiem and tide I betweenxAhe partie& 'art: any juitieitent, or etit, cite any, where eitii matters. Admiralty Court exercised #TBS xiferlAg matter to ,arbitratiotto lortivovi 70i (Erni, ,C #TBE #TBS !The nature of appricattortprd Vie ?11ar mg}tign.TAyghlSaintiffsii atnee otiEJ ,r1?:.$ ) #TBE #TBS .1.ot Aortiv :Wm rtfi' #TBE #TBS action in rem or action ;90 -personam beforev;-theMdmiraltroCourt to #TBE ion, proceedings thereon and the enforcing 'Ws exercised by the Courts of Common WOO Law Procedure Act of 1854 (substi 1889) or otherwise. It is pertinent to Id be exercised by Admiralty Court in Itidicates that no proceeding or action ition or enforcement ''Of the award diyendently. Such action could be ng before the Admiralty Court. has been filed in the Admiralty party it can stay the proceedings, rev,` frce the award provided In England Admiralty o stay the matters pending n in terms of agreement I have not come across , no rwana has berdb*le to been i uted independent of any {{BLUR PAGES}} merely contemplates a temporary action for the purpose of withholding the security for utilization in execution of any arbitration award that may be made by the Lloyd Committee. Whether proceedings for such a relief can be instituted under the Admiralty Jurisdiction? In view of the observation made above my answer will be in the negative. It can be seen that in action in rem after arrest of vessel the proceeding has been stayed and the matter has been referred to arbitration, a strong view prevails in England that after the stay has been…
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