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Petitioner: STAR SHIPPING LINES LTD. VS Respondent: MESSRS EASTERN PAKISTAN COMMERCIAL CORPORATION
P L D 1969 Dacca 696
P L D 1969 Dacca 696
Before Abu Md. Abdulla, J
STAR SHIPPING LINES LTD. AND ANOTHER Plaintiffs
Versus
MESSRS EASTERN PAKISTAN COMMERCIAL CORPORATION AND ANOTHER‑Defendants
Admiralty Suit No. I of 1967, decided on 31st May 1968.
(a) Inland Mechanically Propelled Vessels Act (I of 1917) Article 19 of the Rules for the Prevention of Collision‑Does not apply to Char Bata channel (between Hatiya and Sandip) in East Pakistan.
(b) Damages‑Negligence‑Collision at sea‑Same degree of caution not required of master of ship after collision‑Rule, however, applicable only where collision due to wrongful act of defendant.
(c) Damages‑Collision at sea‑Concept of "constructive total loss"‑Mere flying over wreck and plain water by expert surveying damage‑Not a satisfactory method of assessing loss and declaring vessel to be "constructive total loss".
Nicholls's "Seamanship and Nautical Knowledge" (1950 Edn.), p. 244 and Marsden's "The Laws of Collision at Sea", para. 512 ref.
Dr. Kamal Hossain with H. R. Sharif for Plaintiff No. 1.
K. S. Nabi for Plaintiff No. 2.
Hamidul Huq Chowdhury with A. H. Mirza, K. H. Haque and M. M. Haque for Defendant No. 1.
Mozammal Haque Khan for Defendant No. 2.
Dates of hearing: 10th, 12th, 16th, 17th, 18th, 22nd January, :22nd, 23rd and 26th February 1968.
JUDGMENT
In this suit the plaintiff No. 1 is the Star Shipping Lines Ltd., owners of the Vessel M. V. Star Alnair. Plaintiff No. 2 is the Muslim Insurance Co. Ltd. Defendant No. 1 Messrs Eastern Pakistan Commercial Corporation Ltd. are the owners of Vessel M. V. Mahtab Tareq. Burmah Eastern Ltd. has been made pro forma defendant No. 2.
It is stated by the plaintiffs that the plaintiff No. 1 was the ‑owner of the Vessel M. V. Star Alnair and the Industrial Deve lopment Bank was its mortgagee and the price of the vessel was Rs. 8,00,000. The plaintiff No. 2 was at the relevant time the Insurer of the said Vessel M. V. Star Alnair having issued a Cover Note No. D/M.H.‑13/65 in lieu of which it subsequently issued its policy No. M. H.‑28/65, dated 28‑8‑1965 for Rs. 8,00,000. The defendant No. 1 is described as a Private Limited Company carrying on business of Inland Motor Transport and are the owners of M. V. Mahtab Tareq. Defendant No. 2 is a Public Limited Company carrying on the business of Oil, Petroleum and other materials. The defendant No. 2 had chartered the Vessel M. V. Star Alnair for a period of 18 months commencing from 1st of July 1965. It is stated that M. V. Star Alnair loaded with 17,030 tins (each tins being of 4 gallons) and '960 barrels (each containing 44 gallons of Kerosene oil belonging to Burmah Eastern Ltd.) was proceeding from Chittagong towards Chandpur. At about 5‑25 a. m. on 12th January 1966 M. V. Mahtab Tareq coming from opposite direction collided with the plaintiffs' Vessel when the plaintiffs' Vessel had crossed Port hand buoy of Char Bata in Hatiya River, within Hatia Police Station in the district of Noakhali. It is stated that at the relevant time the master of M. V. Star Alnair noticed one white and one red light of another Vessel later seem to be M. V. Mahtab Tareq from the left side of M. V. Star Alnair. As there was no search light on M. V. Mahtab Tareq, the Master of Star Alnair thought it to be a passing vessel. The Master of M. V. Star Alnair slowed down the speed and sounded a long whistle. As. there was no response from the other vessel, he sounded another long whistle. There was no response from the other vessel this time also. On the contrary, the Master of the Vessel M. V. Star Alnair noticed that A. V. Mahtab Tareq had in on excessive speed come very close to M. V. Star Alnair. Then with a view to avoid collision and to provide wider berth, the Master of' the Star Alnair sounded one short whistle and in fact went right. But the vessel M. V. Mahtab Tareq instead of keeping right sounded two short whistles and changed course to her left which was a gross violation of the rule of navigation. The Master of Star Alnair understood said action M. V. Mahtab Tareq was leading the vessel towards imminent danger, he sounded three whistles and went back, but the vessel Mahtab Tareq in her full speed hit on left side of No. 1 Hatch of Star Alnair by the forward nose of M. V. Mahtab Tareq and due to the impact the vessel M. V. Star Alnair sank within 15 minutes. The crew of the Vessel, Star Alnair, were rescued by the vessel M. V. Mahtab Tareq and they were given lift to Chandpur where the Master of Star Alnair lodged First Information Report with the Chandpur Police Station on 12‑1‑66 at about 20.OOp hours. It is alleged that the collision was caused solely by the reckless and negligent navigation of M. V. Mahtab Tareq by the defendant No. 1 or his servants and/or his agents and/or persons in charge of the said vessel at the material time.
It is further alleged that a preliminary enquiry on the collision was held by the Marine Department of the Provincials Government, which has submitted his report recommending a formal Court of investigation.
It is alleged that the hull and machinery of the vessel: M. V. Star Alnair was insured with the plaintiff No. 2 to the extent of Rs. 8,00,000 and the plaintiff No. 2 has paid the: said sum of Rs. 8 lacs to plaintiff No. 1 and the Industrial Deve lopment Bank of Pakistan who were the joint insurer for the said vessel and the notice of abandonment of the vessel and letters, of subrogation were duly executed in favour of the plaintiff No. 2 and thereby the plaintiff No. 2 became and is entitled to the said vessel and its salvage, and to all interests and rights of the plaintiff No. 1 and the mortgagee of the vessel M. V. Star Alnair.
It is alleged that the vessel Star Alnair could not be salvaged and she was a total loss to the plaintiffs and the entire cargo valued at Rs. 2,08,421 was totally sunk and. lost.
It is alleged that the plaintiff No. 1 claimed to the plaintiff' No. 2 for the loss of cargo. But the plaintiff No. 2 repudiated the claim on the ground that the Insurance Policy did not cover the Cargo and as such the said sum of Rs. 2,08,421 is recoverable from the defendant No. 1.
Thereafter the plaintiff has given a chart of rate of freight which they had contracted with pro forma defendant No. 2 and has calculated that a sum of Rs. 3,06,276 was due to them from defendant No. 1 as loss of earning due to collision.
It is alleged that the plaintiff No. 2 having paid a sum of Rs. 8,00,000 to the plaintiff No. 1 and the Industrial Bank of Pakistan for the said Vessel is entitled to recover Rs. 8,00,000 from the defendant No. 1.
It is alleged that under the circumstances the plaintiff No. 1 under letter No. SSL/Alnair‑/9,/1/66‑30, dated 15th January 1966, lodged claim for compensation for the price of the vessel (Rs. 8,00,000), loss of Cargo and loss of business from the Defen dant No. 1‑ But the defendant No. 1 refused the said claim under letter 4913 dated 15th February 1966.
It is alleged that finally the plaintiff No. 1 by their Advocate's letter dated 5th November 1966 issued notice on the defendant No. 1 to settle the claim of the plaintiff No. 1 within 15 days from the date of receipt of the said notice. But the defendant No. 1 did not reply to the said notice. Hence the suit.
The plaintiffs have valued the suit at Rs. 13,14,697 of which the loss of Cargo was originally claimed as Rs. 2,08,421, the loss of earning Rs. 3,06,276. The total being Rs. 5,14,697. Subsequently by an amendment the figures were reduced. Plaintiff No. 2 has claimed the sum of Rs. 8,00,000 as the price of the vessel. The plaintiffs have further prayed for a declaration that the vessel M. V. Mahtab Tareq was subject to a damage lien and charged with the payment of the decretal amount to the plaintiffs. In the event of the defendant failing to effect payment of the decretal amount to the plaintiffs an order may be passed condemning the Vessel M. V. Mahtab Tareq to be sold and the net proceeds applied towards the payment to the plaintiff.
Only defendant No. 1 has entered appearance. The defendant No. 1 has taken the usual technical objections to the maintainability of the suit on the ground of limitation, estoppel, non joinder and misjoinder. He has also challenged. the jurisdiction of this Court to entertain the suit. After traversing the relevant statements in the plaint in paragraph 13 the defendant states its case as follows:
"This defendant denied each and every statement contained in paragraph 7 of the plaint. In particular it is denied that just after the vessel M. V. Star Alnair had crossed port hand buoy off Char Bata in Hatiya river, the Master of M. V. Star Alnair noticed one white and one red light. It is denied that the Master of M. V. Star Alnair slowed down the speed. It is further denied that he sounded a long whistle as such there was no occasion for any response. It is denied that he sounded another long whistle as such there was not occasion for any response. It is denied that M. V. Mahtab Tareq came close to the Alnair in excessive speed, as such the Master of the vessel M. V. Star Alnair could not have noticed excessive speed on the port of Tareq. It is further denied that Master of M. V. Star Alnair sounded one short whistle as alleged or at all. It is denied that Alnair was right in turning to her right. It is denied that M. V. Mahtab Tareq was wrong in turning to the left. It is further denied that she "changed her course to the left". She turned to the left strictly in accordance with the navigational rules. It is denied that M. V. Mahtab Tareq the guilty of any illegal act as alleged or at all. It is further stated that there was no occasion for the Master of M. V. Star Alnair to `understand' that M. V. Mahtab Tareq had been leading the vessels towards imminent danger. It is denied that the vessel M. V. Mahtab Tareq hit M. V. Star Alnair as alleged or at all. On the other hand the Alnair was on the wrong course and struck Mahtab Tareq in spite of the fact that Mahtab Tareq was going back. It is further denied that the vessel M. V. Star Alnair sank within 15 minutes or at all."
In paragraphs 19 and 20 the defendant further stated their own case.
"The facts are that shortly before 5‑15 a. m. (P. S. T.) on the 12th January 1966, the "Mahtab Tareq" (hereinafter referred to as "Tareq" a steel‑screwed motorship belonging to defendant No. 1 of 498.37 tons gross 179.59 ft. in length, 27.72 ft. in beem and fitted with a single engine of 650 H. P., was near Char Bata a place between Hatiya and Sandip in the Meghna estuary in the course of a voyage from Narain ganj to Chittagong unladened and manned by a crew of 17 hands all told. The deep water channel at that point was over a mile across. The weather was fine and visibility good and the tide was flood running about north‑west of the force of about 3 to 4 knots. The "Tareq" was on a course of 90 east bank megnetic shaping to keep on to the north shore of the deep water channel at a distance of approximately 400 ft. from the shore which was on her portside, and with her engine running full speed ahead was making about 8 knots against the current. The requisition mast‑head light and side lights were duly exhibited and a good look out was kept.
In these circumstances the white and green lights of an in ward bound ship which proved to the "Alnair" were particularly noticed about 1 miles and on the star board bow of the "Tareq". The "Tareq" turned east 80 north and continued to maintain her course keeping to the northern bank of the deep water channel in the expectation that the "Alnair" would pass her safely starboard to starboard. The "Alnair" however without sounding any whistle signal began to close in by swerv ing to her starboard, whereupon the "Tareq" seeing that danger of collision was imminent sounded three short blasts and stopped the engine. No whistle signal was heard from the "Alnair" and she continued to turn to her starboard. The engine of the "Tareq" was then put full speed astern but the "Alnair" still sounding no whistle signal and being over laden with unsecured cargo on her deck and hold and being out of control continued to swing rapidly her starboard and coming with high speed with the force of the current with her, her port‑side struck the helm and starboard bow of the "Tareq". Thereupon the "Alnair" began to spin in a clockwise direction in mid‑channel and the unsecured cargo on deck and in the hold began to roll off tippling the ship. The crew of the "Alnair" hastily abandoned ship and being without a helmsman the "Alnair" spun further and ran a ground on the said Char Bata and capsized about half a mile away from the place of collision near the shore."
The defendants further alleged in paragraph 24 that the "Alnair" did not completely sink. In fact her bow‑stern and deck were above the water and therefore perfectly salvageable for some time but the plaintiff did not make any effort to salvage the ship. It was further stated that for nearly three months the vessel Alnair was lying a ground near the shore on its side but no attempt appears to have been made to salvage her. The rest of written statement is a denial of the claim of the plaintiffs. The issues framed in this case were as follows:
(1) Has this Court jurisdiction to entertain the suit?
(2) Is the Court‑fee sufficient?
(3) Is the suit maintainable in its present form?
(4) Is the suit barred by limitation and/or by the principles of waiver, estoppel and acquiescence?
(5) Is the defendant No. 1 liable to pay any compensation to the plaintiff, if so, to what extent?
(6) Are the plaintiffs entitled to any other relief or reliefs ?
The plaintiff has examined 15 witnesses and defendants have examined 12 witnesses.
P. W. 1. A. M. S. Hassan Bakhtiar has proved the agreement between Burmah Oil Company and Star Shipping Lines Ltd. (Agreement Exh. 1). He has also proved Exh. 2 series. 8 bills which were paid by cheques, marked Exh. 3 series. He has also proved debit notice Exh. 4 series by which the loss of the cargo concerned was adjusted. He has stated that Burmah Oil Company has claimed from Star Shipping Ltd. a sum of Rs. 1,98,332 as damages for the consignment and has stated that the claim was satisfied as per certificate of recovery Exh. 6. In cross‑examination he has stated that he is the Marketting service Assistant of the Burmah Oil Company. He has admitted that he had no personal knowledge of how much cargo was actually loaded in the ship. He has stated that what quantity was to be loaded was decided by the manager one Mahboob Alam who has not been examined. He has no knowledge if any manifest of the goods was prepared. He has admitted that he does not know whether any step was taken by the company to recover the goods and he has further stated that if the goods were being carried by their own carrier it would have been normal for them to recover the goods when the accident took place. He states that he has no knowledge that more than 900 tins of Oil had been recovered by the Sudharampur station of Char Bata. He has proved the letter dated 14th January 1966, addressed to Star Shipping Lines Ltd. by Burmah Eastern Ltd. Exh. A.
P. W. 2 Reazuddin Chowdhury the Assistant Sub‑Inspector of Police Chandpur Police Station. He has proved Exh. 7 and 8, entries made in the diary, one on 12‑1‑66 at 8‑10 p. m. and the other at 10‑30 p. m. on the same date. In cross‑examination he has admitted that he did not make any enquiry as to the place where the vessel was sunk nor did he get any report about tins of Kerosene Oil. He has stated that the place of occurrence was not within their jurisdiction and that it was within Ramgati Police Station and he had no know ledge whether any investigation was made by the Ramgati Police.
P. W. 3 Maniruzzaman was the master of the steamer Alnair at the time of the collision. He is an eye‑witness. He has stated that he was on duty in the early hours of 12th of January 1966. He has said that after leaving the red buoy on his left he made his course towards Char Bata black buoy at 260 degrees keeping the black buoy on his right he started towards and took his course towards red buoy at 295 degrees, keeping red buoy on his left he took turn taking course at 250 degrees towards black buoy in his front when he found one red light and one white light on his left front side. He gave a long whistle for warning. He got no response, then he realised that a steamer was coming in his direction, then he gave another long whistle but got no response to that even, then he slowed down the speed of his steamer by giving another small blast. He turned to his right, then he heard two small whistles coming from his left side. Then he stopped his engine and he gave three short whistles and he went back, then the other steamer struck on his left side. He was then at the steamer wheel in front of hatch No. 1 and hatch No. 2. When the other steamer struck, his steamer heeled over towards the left. After the hit the hatch cover opened. He gave his engine full speed forward and made his best effort to reach the shore but the steamer sank down ; when the steamer capsized one side of it was above water where 7 or 8 persons were on that side and others fell into the water. Then they gave a call to Mahtab Tareq steamer which came to their rescue and took them to Chandpur where the First Information Report was lodged and the company was also informed. He has said that the Motor vessel was carrying 17,000 tins and 960 barrels. He has further said that he was with the tide the force of which was about three to four miles. He has said that at the time of collision his Sukhani, Ali Ahmed, was with him but the said Ali Ahmed is dead. He has explained the function of the red buoy and black buoy. He has stated that when coming from Chittagong the red buoy would remain in the left side and black buoy on the right side and the vessel has to go between the bouys, and they keep about 300 feet off from the buoy. He has then said that when going between the channel he has to keep to the right of the channel according to rule 19 and he had been many times on this channel and had observed this rule. He has said that the ship which is going with the tide has the right of way and the ship which is going against the tide has to stop if necessary. He has said that he had no difficulty to ply the steamer add the ship did not sink because the cargoes moved in the ship. He has said that Mahtab Tareq did not carry any search light. If Mahtab Tareq could move to their right there would not have been the accident. The moving of Mahtab Tareq to the left was not justified by any rule. Mahtab Tareq was in full speed. He has shown the place of accident marked Exh. 10 in the map (Exh. 11) and the place where the Star Alnair sank marked Y in the map. He was taking a course of 250 when the ship was hit. His ship and he was fully equipped as per rules. In cross‑examination he has stated that he lost his certificate in the ship and had not been able to get a copy thereafter. He further admitted that he was kept for one year without any employment. He was then employed as a spare Master. He has further stated that he was also a spare Master on the said voyage and Kabir Ahmed was the permanent Master. He has denied the suggestion that he was not on the bridge at the time of the collision. He has stated that when he took the turn at 250 he saw one red light and one white light on the left front side at approximately 1 or 2 miles. He could not answer how much below east or west Mahtab Tareq would be if he was on 250 course. He has stated that a log book was kept but it was lost with the ship. He has stated that he turned 45 that is from 295 to 250 when he passed the red buoy. He has denied that at any stage he saw the green and white light. He has admitted that up to the time of collision or shortly before that that is 2 or 2 minutes before he had not realised that another steamer was coming and not a country boat. Then he said he gave a long blast because he saw a steamer was advancing ahead of him. The interval between first long blast and the second long blast was about one minute. The interval between the second long blast and the short blast and the turn to right was about two minutes. He has said that after the last blast indicating turning to the right he travelled to 300 to 400 feet from the original course. After the collision he started going towards the shore and went about half a mile or one mile towards the shore and it took him about 2 to 3 minutes. He has admitted that the ship was steady after facing the accident. He has denied that he had said that the ship was making "talamala". He has said that his ship did not turn its course owing to the impact with Mahtab Tareq. He has said that when he had asked the engine room to go dead slow it responded. He has said that after the impact the crew did not rush to the deck for safety. He has admitted that about six persons jumped into the water who were picked up after half an hour or three quarters. He has said that he was standing on the portion of the ship which was above water. 7 or 8 persons were also standing. He has denied that after being struck the steamer started moving clockwise. He has said that the vessel must keep to the right whether the river is small or not. He has said that he went to further right to avoid the collision. He has denied the suggestion that he was actually hugging the red buoy and was taking the shortest distance to the next black buoy. He has denied that Mahtab Tareq was, coming from the north of the channel. He has said that the width of the channel near about the buoy was half a mile. He has said that when he gave short blast within half a minute Mahtap Tareq turned to the right and there was a distance of 100 feet when he gave short blast. When asked that he could have easily saved the collision if he had turned to the left. He: has said why he should turn to the left.
P. W. 4 C. M. Rahman is a Naval Architect and has testified to the fitness of the lost vessel.
P. W. 5 Manzoor Ahmed Choudhury is an employee of the Burmah Eastern Ltd. and he has proved the documents as, between Burmah Eastern Ltd. and Star Shipping Lines. He has said that he saw only a portion of the loading.
P. W. 6 Idris Ahmad is a senior Hydrographer of E. P. I. W. T. A. He has explained the function of the buoy.
P. W. 7 Akhlakur Rahman is the Mercantile Assistant of James Finlay Co. Ltd. and he has proved the original survey report marked Exh. 12. He has stated that one Mr. Bella& came from London and prepared an estimate of the damage which was marked Exh. XX. He has tried to prove letter from. Pakistan Salvage Corporation. In cross‑examination he has said: that he had no knowledge about where the vessel sank and in what condition it was and said that Mr. Gordon could only vouch about the contents of the letter. He has admitted that Mr. Gordon did not investigate and never went to the place of the wreck but he gathered the information from Pakistan Salvage Corporation and also from the owner. He has admitted that Pakistan Salvage Corporation has stated in writing that they were in a position to undertake the salvage of the M. V. Star Alnair and deliver it afloat at Narayanganj, and he has, given the details of the proposed Salvage Work by the Pakistan Salvage Co. and that they had said that they had the necessary, equipment. He has said that he did not recollect why his. Company rejected the offer when referred to the statement in the report that Pakistan Salvage Co. would work on "no cure, no pay" basis. He has said that the decision should come from: the under writer and not from them. When the statements in. the report of Pakistan Salvage Corporation to the effect that there were a few dents only on the lost ship were pointed out, the witness says whatever the report, it is there.
P. W. 8 Syed Abdul Basit is Conservancy and Pilot. Superintendent of E. P. I. W. T. A. He has pointed out in the map the deep channel in question and has said it is‑ a buoyed channel. He has explained that by buoyed channel he mean a channel in which the shallow portions are marked' by buoys and if a vessel goes beyond the buoys it is likely to hit the` shallow passage. The international system is followed and colours of black and red are given to the buoys. When vessel are coming from Chittagong to Chandpur the black Buoys have a to be kept at right and the red buoys on the left. Middle channel is the distance between the two buoys that is the passage between the two buoys and the ships have to keep to the right side of the channel and he has said that rule 19 should be observed. Then he has said that the vessel which is going with the tide has the right of way, that it will maintain its own course 'and speed, and the vessels should pass in the channel left side to left side. He has said that…
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