Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: BANGLADESH SHIPPING CORPORATION, DACCA-,Plaintiff VS Respondent: S. S. "NENDN"
Court Name: Sindh High Court Judge(s): Ajmal Mian Title: BANGLADESH SHIPPING CORPORATION, DACCA-,Plaintiff vs S. S. "NENDN" Case No.: C. M. A. No. 2377 of 1980 Date of Judgment:1980-10-17 Reported As: PLD 1981 Karachi 419 Result: Order accordingly
Judgment ORDER The above suit has come up for hearing of the above application filed under rule 731 of-,the Sind Chief Court Rules (O. S.). The facts leading to the filing of the above suit are that the plaintiffs filed the above Admiralty Suit against the vessel named s. s. Nedon (hereinafter referred to as the vessel) for the recovery of Rs. 2,45,75,481/30 on the ground that on board of the plaintiffs' vessel, namely, m. v. Banglar Basni (hereinafter referred to as the damaged vessel) fire had taken place on 1-8-80 at 09.20 hours when from the damaged vessel the cargo in No. 2 twin deck and No. 3 twin deck and fore--part No. 4 lower hold was in the process of being unloaded. It has been averred that at about 9-20 hours, it was sighted by one of the crew members of the damaged vessel on duty that all of a sudden sparks from the funnel of the vessel errupted and blown towards No. 4 hold of the plaintiffs' vessel like lightning the sparks came in contract with the jute bales causing fire and suddenly the jute bales burnt into flames. It has been further averred that prior to the above incident the plaintiffs through a letter dated 27-7-80 protested the master of the vessel regarding the possibility of the funnel sparking if the defendants'. Vessel was toremain alongside with the damaged vessel. It has also been averred that on 30-7-80 at about 20-00 hours, when the labourers were on board for resuming the discharge of the cargo from the damaged vessel and that hatches were opened by the Second Officer of the plaintiff, at that time, he saw sparks emitting from the funnel of the vessel. Thereupon, the master of the damaged vessel strongly protested the vessel's master, who assured that no spark would henceforth escape from the vessel funnel and that after such assurance the work of discharging the cargo had commenced on 1-8-10 when the above fire had taken place. The cargo on board consisted of raw jute, jute yarn, gunnies. The break-up of the plaintiffs' above claim is as follows:
---
## Page 2
(i) Damage suffered in respect of the cargo equivalent to --7,50,000Rs. 1,75,53,905 (ii) Damage suffered in respect of the vessel equivalent to -- 2,00,000 P.s. 46,81,044/30 (iii) Loss of profit equivalent to -- 1,00,000Rs. 23,40,522/10. The above suit was filed on 7-8-80, when it was placed for chamber orders before the learned Senior Judge during the summer vacation. On the basis of the averments contained in the plaint, the above application and the affidavit, the vessel was arrested. 2. The defendant after service of the warrant of arrest of the vessel has put in appearance and has filed counter-affidavit ?.To the application, wherein inter alia the following pleas have been raised: (i) That as the vessel was neither under repair nor any welding work was being carried on, the question of emission of sparks from the plaintiffs' vessel did not arise. (ii) That sparks could not have been seen in the day time and, therefore, the plaintiffs' allegation that the sparks were seen on 30-7-80 at 20-00 hours and again on 1-8-80 at 0920 hours is false. (iii) That a spark as such rises as spark but by the time., it touches down the surface, it becomes ash and, therefore, the question of causing fire by the spark does not arise. (iv) That in any case no fire to jute goods can be caused by spark immediately, when it comes in contract with the jute good's. . (v) That the vessel m. v. 'Ocean Endeavour' belonging to Pakistan National Shipping Corporation was berthed near the damaged vessel and the repair and welding works were being carried out and, there--fore, possibility of sparks emanating from the other vessel cannot be ruled out. (vi) That the fire has been caused due to the negligence of the master of the plaintiffs' vessel, who could have immediately closed the hatches and. Released C. O. 2 system which could have immediately extinguish--ed the fire. (vii) That the direction of the wind was about 210 degrees on 1-8-80 and even if the spark would have emitted from the funnel of the vessel, it could not have entered into the hatch No. 4 of the damaged vessel. (viii) That the fire had occurred on account of throwing of lighted cigarette by some crew members or the labourers on board the damaged ship. 3. The plaintiffs have filed a rejoinder to the above counter-affidavit, wherein they have denied the various averments made by the defendant in the aforesaid counter-affidavit. It has been averred that m. v. Ocean Endeavour was at Berth No. 1 abreast of a Chinese ship, while the damaged vessel was at No. 2 berth. It has also been denied that the fire was caused by throwing cigarette by some crew member or the labourer on board the damaged ship. It has also been denied that there was any negligence on the part of the master and the members of the damaged vessel. It has been averred that the employment of C. O. 2 system in the circumstances would not have been practicable as the batches were open and in the case of No. 4 hold, the most of the cargo had been discharged leaving a large void space, which was not conductive to the use of the above system. 4. (a) It has been urged by Mr. Kazmi, learned counsel for the plaintiffs that the plaintiffs have a prima facie case for the confirmation of the above order of arrest. (6) Whereas Mr. Sharaf Faridi learned counsel for the defendant con--tended that the plaintiffs have no prima jacle case inter alia for the following reasons:- (i) That the suit is not competent as the damage was not caused by the vessel either directly or indirectly during the navigation. (ii) That since the suit claim relates to tort, the suit cannot proceed in the absence of the owner.
---
## Page 3
(iii) That the suit is premature in view of the declaration by the plaintiffs of the general average claiming contributions from cargo owners, in respect of the damaged vessel. (iv) That in any case the plaintiffs are not competent to maintain the suit for the cost of cargo. (v) That the suit suffers from the lack of basic particulars in spite of lapse of more than 2 months since the incident. (vi) That the claim is excessive and that no fault or privity is alleged against the ship-owners, but merely negligence on the part of the master of the vessel has been alleged and therefore, the liability of the defendant will be at the most at the rate of 8-- per ton of the tonnage of the vessel. (vii) That as the Colonial Courts Admiralty Act, 1890, has been repealed by the British Statutes (Application to Pakistan Repeal Ordinance), 1969. Rules 735 to 775 of the Original Side of the Sind Chief Court Rules stand repealed and, therefore, rule 731 (O. S.) cannot be pressed into service. (c) The plaintiffs in order to show a prima J'acie case have relied upon the following documents: (i) Plaintiffs' damaged vessel's master's letter 27-7-80 addressed to the defendant's vessels master pointing out that the plaintiffs' vessel was carrying jute cargo, which was in the process of discharge and that the defendant's vessel's funnel was sucking and there was every possibility of sparks escaping from the defendant's vessel's funnel coming into the holds of the plaintiffs' damaged vessel having jute cargo. Which might result in serious fire (Annexure A to the plaint). (ii) Plaintiffs' master's letter dated 1-8-80 addressed to the defendant's vessel's master written at 11.15 hours stating therein, that the plaintiffs hold the defendant responsible for the fire, which was caused due to the sparks emitting from the defendant's vessel's funnel (Annexure A-I to the plaint). (iii) A news item appearing in English daily newspaper Dawn dated 3-8-80 inter alia stating therein, that the sources suspect that the fire might have been caused by the sparks emanating from the funnel of the Greek Ship i. e. the vessel berthed in abreast position of the plaintiffs' vessel (Annexure 'B' to the plaint). (iv) The survey report dated 4-8-80 issued by Messrs Oceanic surveyors, containing the detail of the cargo and the reason for the fire as disclosed by the master and the members of the crew on board the damaged vessel (Annexure C to the plaint). (v) Declaration made by the master of the damaged vessel dated 5-8-80 stating, therein the reason for the fire, namely, escape of sparks from the vessel's funnel (Annexure D to the plaint). (vi) The photostat copy of the true copy of the Mate's log book entry dated 1-8-80 giving the aforesaid reason for the fire (Annexure E to the plaint). (vii) Photostat copies of the entries dated 27-7-80, 30-7-80, 1-8-80 of the plaintiffs' damaged vessel's official log book, whereas entry dated 27-7-80 states that the master of the damaged vessel has served a notice on the master of the vessel on 25th and on today by seeing emission of funnel sparks, whereas entry dated 30-7-80 states that at about 20-0) hours when hatches were opened to resume cargo work, the Second Officer on duty sighted huge quantity of funnel spark from the vessel coming out, whereupon he informed the master of the damaged vessel and the unloading of the cargo was suspended. Furthermore, entry dated 1-8-80 narrates the aforesaid reason for the occurrence of the fire (Annexure E to the plaint). (viii) News item appearing in Urdu Jang dated 2-8-80 containing identical news items as appeared in the aforesaid English daily newspaper Dawn (Annexure G to the plaint). (lx) Statement containing the detail of the cargo (Annexure H to the plaint). (x) Alleged Ist statement made by Mohsin A.I the Master of the plaintiffs' damaged vessel (Annexure A-1 to the plaintiffs' affidavit dated 23-9-80). (xi) Another survey report dated 22-9-80 issued by Messrs Oceanic Surveyors (The above survey report has been produced on 27-9-80). (xii) An affidavit of one Mr. .Colinn Papwrith dated 10-8-80 being an alleged senior Marine Surveyor of the firm Messrs Perfect Lambert & Co., London stating therein that the jute goods are of such
---
## Page 4
nature that they instantly combustible when coming in contact with sparks such as those from a ship's funnel. (xiii) A copy of the telex (filed along With their application dated 18-8-80). (xix) A copy of Shipping Intelligence's report issued by the Karachi Port Trust for some of the dates between 3-1-80 and 9-8-80, pages 2 to, 8 (filed along with the plaintiffs' counter-affidavit dated 8- 9-80), showing the arrivals and departures of the various vessels from the Port of Karachi. (xv) A copy of the minutes of the meeting held between the represen--tatives of Bangla Desh Government and the Government of Pakistan dated 10-8-80 (p. 9). (d) Whereas the defendants have produced the following documents in order to show that the plaintiffs have no prima facie case: (i) A photostat ,copy of the Shipping Intelligence's report dated 2-8-80, issued by the Karachi Port Trust showing the arrival of the vessel m. v. Ocean Endeavour (Annexure D to the counter-affidavit). (ti) The vessel . Master's reply dated 1-8-80 to the damaged vessel's master's aforesaid letter dated 1-8-80 (B-1 to the counter-affidavit). (iii) The, vessel. Master's reply dated 5-8-80 to the damaged vessel Master's aforesaid letter dated 1-8-80 (Annexure D-2 to the counter-- affidavit). (iv) A sketch showing the location of the two vessels in question (Anqexure Pr3). (v) A photostat copy of the survey report dated 10-8-80 issued by Messrs Marine Consultants (filed by the aforesaid defendant alongwith their statement dated 11-8-80 for submitting the above report). (vi) A copy of the inquiry report in respect of the fire in question prepared by 'the Deputy Conservator, Karachi Port Trust under sec--petition 247 of the Merchant Shipping Act, 1923, stating therein, that the fire had not been caused on account of any spark emanating from the vessel's funnel and that it might have been caused from the burning of match or cigarette having been negligently thrown into the holds containing jute and jute goods by the stevedore labourers working or because of sabotage. (The above survey report was filed by the defendant through their application dated 4-9-80 presented on 7-9-80). The copy of the above report is appended with the copies of the statements of 14 witnesses recorded by the Inquiry, i. e. Master and members of the crew of the vessel and of the damaged vessel and also of the dock-labourers working on board for unloading the cargo. 5. (a) It has been urged by Mr. Kazmi, the learned counsel for the plaintiffs that in view of the documents produced by the plaintiffs, it cannot be urged that the plaintiffs have no prima facie case against the defendant or that the same is an afterthought. In this regard the reliance has been placed on the plaintiffs' vessel's master's aforesaid letter dated 27-7-80 pointing out to the defendant's plaster that the vessel's funnel was sucking and that there was possibility of sparks emanating from the funnel resulting into fire: Whereas it has been urged by the learned counsel for the defendant that the plaintiffs have no prima facie case and that this Court in order to ascertain as to whether there is prima facie case or not should examine the documents on record. It may be pertinent to observe that the defendants have denied the correctness of the two survey reports produced by the plaintiffs and also the correctness of the entries of the Mate's log book and the vessel's log book referred to hereinabove, whereas the plaintiffs have denied the correctness of the survey report produced by the defendant and also the correctness of the inquiry report etc. Prepared by the Deputy Conservator. It has been contended by the learned counsel for the plaintiffs that the above alleged inquiry report cannot be relied upon as the same has been prepared by a K. P. T's. Official, against whom the plaintiffs' had served a notice for the claim arising out of the -above fire on account of their negligence in bringing in the vessel in abreast position alongside the damaged vessel in spite of the protest by the plaintiffs.
---
## Page 5
(b) The question which requires consideration is as to whether the plaintiffs have made out a prima facie case in order to maintain the order of arrest. According to Mr. Kazmi the instant suit is an admiralty suit against the vessel and the relief of arrest of a vessel in admiralty matters is a normal relief recognised in Maritime Law through the world and that this Court is to see as to whether the plaintiffs will have a case against the defendants in case they succeed in proving the averments of the plaint. Whereas it was urged by Mr. Sharaf Faridi that the principles applicable for determining an application under Order XXXVIII, C. P. C. For attachment before judgment ox under Order XXXIX, rules 1 and 2, C. P. C. For an ad interim injunction are also applicable to an application for arrest of a vessel in an admiralty suit, and that this Court will have to examine the documents brought on record. (c) Mr. Kazmi has relied upon the case of The Myrto (1) and the case of the vessel named The Lisboa decided recently by the Court of Appeal of England comprising of Lord Justice Denning, Lord Justice Waller and Lord Justice Dunn in the case of Mike Trading & Transport Ltd. v. Roman Pagnan & Petro Pagnan (2), the case of Hayat Shipping Agencies Ltd., Karachi v. Delta Pioneer and others (3), the case of Messrs Ameejee Yalleejee & Sons v. m. v. Azeem and 2 others (4), the case of Messrs Diamond Engineering Mechanical Electrical & Marine Engineering Contractors v. m. v. Luctor-I (m. v. Union Brenda) and S others (5), the case of Captain Yousuf Kazi and another v. s. s. Phoenix and 3 others (6), the case of Pakistan Burmah Shell Ltd. v. s. s. Phoenix and 4 others (7). Whereas Mr. Faridi has relied upon the aforesaid case of 1972 Karachi 442, the case of Messrs Karachi Gas Co. Ltd. v. Messrs Fancy Foundation (8) the case of Messrs Ahmed Investment Ltd., Karachi v. m. v. Sunrise (IV) and another (9). (d) (i) Reverting to the case of the 'Myrto', it may be observed that the mortgagees of the vessel, which was arrested, brought an application for the release of the vessel. While rejecting the above application, it was observed by Brandon, J. That:- "an order for the release of the ship made in interlocutory proceedings before the trial was a drastic one which should only be made in a clear case, and the present one was not such a case." (ii) Referring to the aforesaid case relating to the vessel Lisboa, it was held by the Court of Appeal that:- "By the maritime law of the world the power of arrest should be and was available to a creditor exercising it in good faith in respect of a maritime claim wherever the ship was situated, even though the merits of the dispute had to be decided by a Court in another country. Simple justice demanded that the arrest should be upheld and maintained, unless and until security was provided for the release of the vessel." The Court of Appeal declined to release the ship and the order of Justice Mocatta for arresting the vessel was maintained. (1) 2 Lloyd's L R 243 (2) Llord's M. L. N. L. Dated 7-8-80 (3) PLD 1972 Kar. 442 (4) PLD 1978 Ka,. 467 (5) PLD 1978 Kar. 837(6) PLD 1978 Kar. 1052 (7) PLD 1979 Kar. 789(8) PLD 1977 Kar. 191 (9) PLD 1980 Kar. 229 (iii) Reverting to 1972, Karachi case, it may be stated that the suit was filed by the charterers. The order of arrest was recallee upon hearing a preliminary objection raised by the defendant vessel that the claim of the plaintiff was not covered under section 6 of the Admiralty Courts Act, 1861, It was held by the Court that section 6 of the above Act conferred jurisdiction in respect of any claim by the owner, consignee or assignee of any bill of lading of any goods carried into the relevant ports but does not cover a claim of a charterer. Since it was held that prima facie the suit was not competent, the order of arrest was recalled.
---
## Page 6
(iv) Reverting to the case of m. v. Azeem (1978 Karachi 467), it may be stated that in the above case the order of arrest was recalled upon coming to the .Conclusion that the claim of the suit did not arise on account of necessaries supplied or the services rendered to the above vessel and, therefore, the action in rein against the defendant vessel was not competent. (v) Whereas in the case of m. v. Luctor-I .It was held that Admiralty jurisdiction of the Sind High Court, is derived from the provisions of Admiralty Act, 1961, and that any enlargement or extension of admiralty jurisdiction of the Birtish Courts by subsequent enactments, does not affect the jurisdiction of the High Court of Sind. In the above case .The order of arrest was recalled on the ground that the plaintiffs had failed to prove that they had any maritime lien over the defendant's vessel in terms of the various sections of the Admiralty Courts Act, 1961. . (iv) Reverting to the case of Capt. Yousuf v. s. s. Phoenix it may be stated that in the above case upon the trial of the suit, the same was dismissed on the ground that the evidence produced by the plaintiff did not show that they had disbursed the total amount as alleged, but in fact they had disbursed only less than half of such amount and such disbursement was less than the amount in the plaintiffs' hands on account of the freight. (vii) Whereas in the case of Phognix, it was held that if the supplies have been made on the credit of the agent, suit in rein against the vessel in respect thereof was not competent. The contention that the suit was in rein as well as in personam was negatived and it was held that an action on necessaries in admiralty jurisdiction proceeding both in rein and in personam is not maintainable. (viii) Reverting to 1977 Karachi case, it may be stated that the above case related to a suit for specific performance of a sale of immovable property, while considering the question of granting an ad interim injunction it was observed that the question of injunction cannot be approached with any hard and fast rule like mathematical formula and that being equitable and discretionary reliefs, each case is to re decided in the light of its own facts and circumstances and that the Court while deciding will take into considera--petition admitted documents placed before -it, though such assessm ent is of tentative nature and not binding on the Court trying the suit. (ix) Whereas in the above 1980 Karachi case, it was held that by virtue of section 35 of the Admiralty Act, 1561, the admiralty jurisdiction can be exercised in rein as well as in person name. The above case dissented from the earlier case of Karachi referred to hereinabove relating to s. s. Phoenix in which it was held that an admiralty action cannot be maintained in rein as well as in personam. (e) In order to enforce the above contention that the principles applicable to an application under Order XXXVIII or XXXIX, C. P. C. For an order of attachment before judgment or for an ad interim injunction are also applicable to an application for arrest of a vessel in an admiralty suit, Mr. Faridi has invited my attention to rule 729 of the Sind Chief Court Rules (O. S.) which has referred to the C. P. C. And also to his contention noticed hereinabove, namely, that on account of the repeal of Colonial Courts Admiralty Act, 1890, the aforesaid rule 731 cannot be pressed into service. In my view the repeal of the above Act has not done away with the power of this Court to order the arrest of a vessel in pursuance of an application. In my view under admiralty jurisdiction, the power of arrest of a vessel is inherent, ancillary, ,4 incidental and necessary for exercising the admiralty jurisdiction effectively = and completely. The above power has been exercised by this Court for such a long period that it is not open to agitate that in the absence of rule 731 of the Sind Chief Court's Rules (O. S.) this power cannot be exercised by this Court. In my view, it is not necessary to go into the question as to whether on account of the repeal of the Colonial Courts Admiralty Act, 1890, the aforesaid Sind Chief Court Rules stand repealed or not. (f ) Reverting to the question, as to whether the general principles applicable to case of an attachment before judgment or in respect of an ad interim injunction can be pressed into service, while considering an application for arrest of a vessel under rule 731 of the Sind Chief Court Rules
---
## Page 7
(O. S.) or under inherent power, it may be pertinent to mention that an admiralty suit is a suit of special type. It is against the res i. e. the vessel. In my view it cannot be equated with an ordinary suit, in which an application under Order XXXVIII or XXXIX, C. P. C. May be moved. Therefore, the principles applicable in deciding an application for attachment before judgment B or for granting an ad interim injunction cannot be made strictly applicable, to an application for arrest of a vessel in an admiralty suit. It may be noticed' that in the above-cited Karachi cases, in which the orders of arrest were recalled, the Court had come to the conclusion that the claims were not triable as admiralty actions. Whereas the above English cited cases indicate that the relief of arrest of a vessel is a normal relief which is granted in an admiralty suit except in those cases, in which the Court comes to the conclusion that the claims in actions, cannot be tried as admiralty actions or that claim is bogus on the face of it. Furthermore, generally an admiralty suit ?s a suit against a vessel, if the vessel is allowed to leave the limits of the Court's jurisdiction without a security, the suit loses ;its utility. It maynot be possible to execute the decree if any passed, as by time the suit will be finalized the vessel may sink or she may be purchased by a bona fide purchaser without notice. 6. (a) Keeping in view the principles enunicated hereinabove, it may be pertinent to examine the respective contentions of the learned counsel for the parties on the question of prima facie case. Mr. Sharaf Faridi, learned counsel for the defendants in support of his contention that the plaintiffs have no prima facie case has relied upon the following documents:- (i) The Inquiry Report prepared by the Deputy Conservator K. P. T. Under section 246 of the Merchant Shipping Act, 1923. (ii) The statements of the following witnesses recorded by the Inquiry Officer, the copies of which are appended to the copy of the above Inquiry Report as stated hereinabove. (i) Captain M. A. Qudoos, Master of the damaged vessel. (ii) Mr. Nevillee Syril Coelho, The Chief Officer of the damaged vessel. (iii) Mubarak, (iv) Ismail and (v) Ahmad Soomar. The above three persons were working as Dock…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.