PLJ 1998 Karachi 233 [Admiralty Jurisdiction]
Present: rana bhagwan das, J. MESSRS ASLO MARINES LIMITED, KARACHI-Plaintiffs.
versus
M.T. MAGDA & another-Defendants Admirality Suit No. 92 of 1977, dismissed on 22.10.1997
. Admiralty Court Act, 1861--
—S. 6--Suit for recovery of damages on account of short landing and delayed landing of consignments--Whether suit maintainable before High Court in its admiralty jurisdiction-Question of-Plaintiffs are neither owners nor consignees of goods or assignees of Bill of Lading as provided in Section-6 of Admiralty Court Act, 1861-From plain reading of language employed in aforesaid provision of law it is evident that notwithstanding enlargement of scope and jurisdiction of Admiralty Courts in England by virtue of amendments brought about in Admiralty Court Act, 1861 and 1891 that jurisdiction could not be exercised by Admiralty courts inPakistan-In case reported as Hayat shipping Agencies Ltd. v. Delta Pioneer, learned Chief Justice after examining scope of section 6 of Admiralty Court Act, 1861 concluded that suit not by owner or consignee or assignee but by charterers is not covered by section 6 of Act J861--Held : Suit in present form is neither maintainable before High Court nor is this Court possessed of jurisdiction to entertain claim at the instance of charterers—Suit fails and is accordingly dismissed.
[Pp. 235 & 237] A, B, C & D
PLD 1970 SC 67, PLD 1978 Kar. 837, 1985 CLC 1355, PLD 1972 Kar. 442 and 1927 AC 906.
Mr. I.H. Zaidi, Advocate for Plaintiff.
Mr. Muhammad Nairn, Advocate for Defendant.
Date of hearing : 22.10.1997.
judgmentShort question in this admiralty suit for recoveiy of Rs. 13,02,728.70 by way of damages on account of short landing and delayed landing of consignments is whether the suit at the behest of the plaintiffs who are charterers is aintainable before this Court in its admiralty jurisdiction.
2. As per plaint vessel M.T. MAGDA was chartered for voyages ondifferent occasions and such vessel sailed from the Ports of Jabel Dhanna(Saudi Arabia) and Rastanura (Kuwait) and landed at the Port of Karachi ondifferent dates between 26.10.1976 to 27.1.1997. Amount claimed in the suit
is based on short delivery of the consignments shipped on such vessel and onaccount of difference of price owing to increase in the market, Total amountclaimed on this account comes to Rs. 13,02,728.70.
3. Written statement filed on behalf of defendants who are vesseland its owners respectively raises a number of factual as well as legalquestions which were reflected in the following issues :
1. Is the suit not maintainable under the Admiraltyjurisdiction of this Hon'ble Court?
2. Have the plaintiffs any right to sue in respect of the claim:for the alleged short landing of goods under various bills oflading?
3.What were the quantities of bulk oil consignments and thevalue thereof at the time of shipment?
4. Was any part of the suit consignments short-landed and ifso to what extent?
5. Have the defendants any liability for the wastage in bulk?
6. What is the extent and value of the loss if any suffered by
the plaintiffs?
I.Was there any breach of the third charter party and if soon whose part?
8. Have the plaintiffs suffered any loss or damages on accountof the alleged breach of charter party and if so what is theextent and value thereof ?
9. Are the plaintiffs entitled to recover any damages onaccount of the breach of charter-party and if so in whatsum?
10. To what relief if any are the plaintiffs entitled?
I1. What should the decree be ?
4. In support of their cases both the parties adduced evidence whichwas recorded on commission.
5. I have had the benefit of hearing the valuable argumentsadvanced on behalf of the learned counsel for the parties on issue No. 1dealing with the maintainability of the suit under the Admiralty jurisdictionof this Court.
6. It is admitted that the plaintiffs are neither the owners nor theconsignees of the goods or assignees of the Bill of Lading as provided insection 6 of the Admiralty Court Act, 1861 which reads as under :--"The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignees or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty of breach of so contract on the part of the owner, master or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recovery twenty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said court."
7. Admittedly the plaintiffs are the charterers of the vessel by virtueof charter-party contracts between the parties. From a plain reading of thelanguage employed in the aforesaid provision of law it is evident thatnotwithstanding the enlargement of scope and jurisdiction of Admiralty Courts in England by virtue of amendments brought about in AdmiraltyCourt Act, 1861 and 1891 that jurisdiction could not be exercised by theAdmiralty Courts in Pakistan. It may also be pertinent to note that the Actsof 1840 and 1861 were repealed by Admiralty jurisdiction of High Courts Ordinance, 1980 with the consequence that the jurisdiction of the Courts inIndo Pak Sub-continent remained unaffected by the amendment introduced in England.
8. Finding him on weak wicket learned counsel for the plaintiffsattempted to argue that section 6 of the Admiralty Court Act, 1861 was
repealed by Administration of Justice Act, 1920 but the argument is devoidof any force as the Colonial Courts in the British era continued to retain thejurisdiction vested in Admiralty Courts conferred under section 6 of theaforesaid Act. Mr. I.H. Zaidi learned counsel for the plaintiffs inspite of morethan reasonable indulgence was unable to cite any provision of law or anyprecedent to the contrary. It is, therefore, only logical, fair and lawful for thiscourt to assume that the jurisdiction vested in this court under the Act 1861cannot be extended to a claim by a charter party. On this sole account thesuit in my view was wrongly entertained which could not be maintained atlaw. Reference to PLD 1970 S.C. 67 is however completely misplaced.
9. As to the jurisdiction of this Court under the Act, 1861, it maysuffice to observe that in 1840 the British Parliament passed the AdmiraltyCourt Act 1840 and later the Admiralty Court Act 1861 in order to extendthe jurisdiction and improve the practice of the High Court of Admiralty ofEngland. Further changes in the Admiralty jurisdiction of the High Courtswere brought about by the Supreme Court of Judicature (Consolidation)Act, 1925 and the latest enactment governing such jurisdiction is theAdministration of Justice Act, 1956, which lasts the areas of jurisdiction ofthe High Court under eighteen paragraphs. The said Act elaborately definedthe Admiralty jurisdiction of the High Court so as amongst other things, togive effect by domestic legislation to two International Conventions inaddition to specifying in detail the questions or claims within Admiraltyjurisdiction, and the Act expressly preserves any other jurisdiction vested inthe High Court of Admiralty immediately prior to commencement of theSupreme Court of Judicature Act, 1873. However, the High Court of Sindhis not concerned with the latter enactments, as the jurisdiction of this HighCourt continues to be governed by the provisions of Admiralty Court Act,
1861 as was made applicable to the Courts of law in British possession byColonial Courts of Admiralty Act 1890. While section 3 of the aforesaid Actstipulated that the Legislature of British Possession could by any Coloniallaw, declare any court of unlimited civil jurisdiction, in that possession to bea Colonial Court of Admiralty and provide for the exercise by such Court ofits jurisdiction under the said Act and limit territorial and otherwise, theextent of such jurisdiction. However, the proviso to section 3 reads as under:-"Provided that any such Colonical law shall not confer any jurisdiction which is not by this Act conferred upon Colonial Court of Admiralty."
10. Aforesaid historical back ground of the Admiralty jurisdiction was considered by S.A. Nusrat-J (as he then was) in Diamond Engineering, Mechanical, Electrical & Marine Engineering Contractors v. M.V. Luctor-I (PLD 1978 Karachi 837) and reiterated by Saleem Akhtar-J (as he then was) in Alexander G. Tsavliris & Sons v. M. V. Rice Traders (1985 CLC 1355). To my mind, this should furnish a complete answer to the contention raised by Mr. I.H. Zaidi that-the suit by a charter party for short landing and damages could be lawfully entertained in the Admiralty jurisdiction of this Court.
11. I am further fortified by judgment rendered by late Tufail Ali A. Rehman, C.J. (as he then was) of this Court in the case reported as Hayat Shipping Agencies Ltd. v. Delta Pioneer (P.L.D. 1972 Karachi 442). Learned Chief Justice after examining the scope of section 6 of Admiralty Court Act, 1861 concluded that suit not by owner or consignee or assignee but by charterers is not covered by section 6 of the Act, 1861. Dealing with the contention of the plaintiffs counsel that in the year, 1925 the jurisdiction of the English Courts of Admiralty was enlarged by the Supreme Court of Judicature (Consolidation) Act, 1925 so as to cover suits of this nature, he held that in view of the verdict by their Lordships of the Privy Council in The Yuri Maru v. The Crown (1927 A.C. 906) 1925 does not serve to increase the jurisdiction of the Colonial Courts and also be held expressly that the jurisdiction already covered did not exclude the jurisdiction in rem to try an action for breach of charter party.
11. Admittedly this Court is bound by a decision of the Privy Council unless a contrary principle of law is enunciated by the Supreme Court of Pakistan. As a necessary corollary, I am clearly of the view that the suit in its present form is neither maintainable before this Court nor is this Court possessed of the jurisdiction to entertain a claim at the instance of charterers. It the result the suit fails and is hereby dismissed with no order as to costs.
(B.T.) Suit Dismissed.
Present: rana bhagwan das, J. MESSRS ASLO MARINES LIMITED, KARACHI-Plaintiffs.
versus
M.T. MAGDA & another-Defendants Admirality Suit No. 92 of 1977, dismissed on 22.10.1997
. Admiralty Court Act, 1861--
—S. 6--Suit for recovery of damages on account of short landing and delayed landing of consignments--Whether suit maintainable before High Court in its admiralty jurisdiction-Question of-Plaintiffs are neither owners nor consignees of goods or assignees of Bill of Lading as provided in Section-6 of Admiralty Court Act, 1861-From plain reading of language employed in aforesaid provision of law it is evident that notwithstanding enlargement of scope and jurisdiction of Admiralty Courts in England by virtue of amendments brought about in Admiralty Court Act, 1861 and 1891 that jurisdiction could not be exercised by Admiralty courts inPakistan-In case reported as Hayat shipping Agencies Ltd. v. Delta Pioneer, learned Chief Justice after examining scope of section 6 of Admiralty Court Act, 1861 concluded that suit not by owner or consignee or assignee but by charterers is not covered by section 6 of Act J861--Held : Suit in present form is neither maintainable before High Court nor is this Court possessed of jurisdiction to entertain claim at the instance of charterers—Suit fails and is accordingly dismissed.
[Pp. 235 & 237] A, B, C & D
PLD 1970 SC 67, PLD 1978 Kar. 837, 1985 CLC 1355, PLD 1972 Kar. 442 and 1927 AC 906.
Mr. I.H. Zaidi, Advocate for Plaintiff.
Mr. Muhammad Nairn, Advocate for Defendant.
Date of hearing : 22.10.1997.
judgmentShort question in this admiralty suit for recoveiy of Rs. 13,02,728.70 by way of damages on account of short landing and delayed landing of consignments is whether the suit at the behest of the plaintiffs who are charterers is aintainable before this Court in its admiralty jurisdiction.
2. As per plaint vessel M.T. MAGDA was chartered for voyages ondifferent occasions and such vessel sailed from the Ports of Jabel Dhanna(Saudi Arabia) and Rastanura (Kuwait) and landed at the Port of Karachi ondifferent dates between 26.10.1976 to 27.1.1997. Amount claimed in the suit
is based on short delivery of the consignments shipped on such vessel and onaccount of difference of price owing to increase in the market, Total amountclaimed on this account comes to Rs. 13,02,728.70.
3. Written statement filed on behalf of defendants who are vesseland its owners respectively raises a number of factual as well as legalquestions which were reflected in the following issues :
1. Is the suit not maintainable under the Admiraltyjurisdiction of this Hon'ble Court?
2. Have the plaintiffs any right to sue in respect of the claim:for the alleged short landing of goods under various bills oflading?
3.What were the quantities of bulk oil consignments and thevalue thereof at the time of shipment?
4. Was any part of the suit consignments short-landed and ifso to what extent?
5. Have the defendants any liability for the wastage in bulk?
6. What is the extent and value of the loss if any suffered by
the plaintiffs?
I.Was there any breach of the third charter party and if soon whose part?
8. Have the plaintiffs suffered any loss or damages on accountof the alleged breach of charter party and if so what is theextent and value thereof ?
9. Are the plaintiffs entitled to recover any damages onaccount of the breach of charter-party and if so in whatsum?
10. To what relief if any are the plaintiffs entitled?
I1. What should the decree be ?
4. In support of their cases both the parties adduced evidence whichwas recorded on commission.
5. I have had the benefit of hearing the valuable argumentsadvanced on behalf of the learned counsel for the parties on issue No. 1dealing with the maintainability of the suit under the Admiralty jurisdictionof this Court.
6. It is admitted that the plaintiffs are neither the owners nor theconsignees of the goods or assignees of the Bill of Lading as provided insection 6 of the Admiralty Court Act, 1861 which reads as under :--"The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignees or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty of breach of so contract on the part of the owner, master or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recovery twenty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said court."
7. Admittedly the plaintiffs are the charterers of the vessel by virtueof charter-party contracts between the parties. From a plain reading of thelanguage employed in the aforesaid provision of law it is evident thatnotwithstanding the enlargement of scope and jurisdiction of Admiralty Courts in England by virtue of amendments brought about in AdmiraltyCourt Act, 1861 and 1891 that jurisdiction could not be exercised by theAdmiralty Courts in Pakistan. It may also be pertinent to note that the Actsof 1840 and 1861 were repealed by Admiralty jurisdiction of High Courts Ordinance, 1980 with the consequence that the jurisdiction of the Courts inIndo Pak Sub-continent remained unaffected by the amendment introduced in England.
8. Finding him on weak wicket learned counsel for the plaintiffsattempted to argue that section 6 of the Admiralty Court Act, 1861 was
repealed by Administration of Justice Act, 1920 but the argument is devoidof any force as the Colonial Courts in the British era continued to retain thejurisdiction vested in Admiralty Courts conferred under section 6 of theaforesaid Act. Mr. I.H. Zaidi learned counsel for the plaintiffs inspite of morethan reasonable indulgence was unable to cite any provision of law or anyprecedent to the contrary. It is, therefore, only logical, fair and lawful for thiscourt to assume that the jurisdiction vested in this court under the Act 1861cannot be extended to a claim by a charter party. On this sole account thesuit in my view was wrongly entertained which could not be maintained atlaw. Reference to PLD 1970 S.C. 67 is however completely misplaced.
9. As to the jurisdiction of this Court under the Act, 1861, it maysuffice to observe that in 1840 the British Parliament passed the AdmiraltyCourt Act 1840 and later the Admiralty Court Act 1861 in order to extendthe jurisdiction and improve the practice of the High Court of Admiralty ofEngland. Further changes in the Admiralty jurisdiction of the High Courtswere brought about by the Supreme Court of Judicature (Consolidation)Act, 1925 and the latest enactment governing such jurisdiction is theAdministration of Justice Act, 1956, which lasts the areas of jurisdiction ofthe High Court under eighteen paragraphs. The said Act elaborately definedthe Admiralty jurisdiction of the High Court so as amongst other things, togive effect by domestic legislation to two International Conventions inaddition to specifying in detail the questions or claims within Admiraltyjurisdiction, and the Act expressly preserves any other jurisdiction vested inthe High Court of Admiralty immediately prior to commencement of theSupreme Court of Judicature Act, 1873. However, the High Court of Sindhis not concerned with the latter enactments, as the jurisdiction of this HighCourt continues to be governed by the provisions of Admiralty Court Act,
1861 as was made applicable to the Courts of law in British possession byColonial Courts of Admiralty Act 1890. While section 3 of the aforesaid Actstipulated that the Legislature of British Possession could by any Coloniallaw, declare any court of unlimited civil jurisdiction, in that possession to bea Colonial Court of Admiralty and provide for the exercise by such Court ofits jurisdiction under the said Act and limit territorial and otherwise, theextent of such jurisdiction. However, the proviso to section 3 reads as under:-"Provided that any such Colonical law shall not confer any jurisdiction which is not by this Act conferred upon Colonial Court of Admiralty."
10. Aforesaid historical back ground of the Admiralty jurisdiction was considered by S.A. Nusrat-J (as he then was) in Diamond Engineering, Mechanical, Electrical & Marine Engineering Contractors v. M.V. Luctor-I (PLD 1978 Karachi 837) and reiterated by Saleem Akhtar-J (as he then was) in Alexander G. Tsavliris & Sons v. M. V. Rice Traders (1985 CLC 1355). To my mind, this should furnish a complete answer to the contention raised by Mr. I.H. Zaidi that-the suit by a charter party for short landing and damages could be lawfully entertained in the Admiralty jurisdiction of this Court.
11. I am further fortified by judgment rendered by late Tufail Ali A. Rehman, C.J. (as he then was) of this Court in the case reported as Hayat Shipping Agencies Ltd. v. Delta Pioneer (P.L.D. 1972 Karachi 442). Learned Chief Justice after examining the scope of section 6 of Admiralty Court Act, 1861 concluded that suit not by owner or consignee or assignee but by charterers is not covered by section 6 of the Act, 1861. Dealing with the contention of the plaintiffs counsel that in the year, 1925 the jurisdiction of the English Courts of Admiralty was enlarged by the Supreme Court of Judicature (Consolidation) Act, 1925 so as to cover suits of this nature, he held that in view of the verdict by their Lordships of the Privy Council in The Yuri Maru v. The Crown (1927 A.C. 906) 1925 does not serve to increase the jurisdiction of the Colonial Courts and also be held expressly that the jurisdiction already covered did not exclude the jurisdiction in rem to try an action for breach of charter party.
11. Admittedly this Court is bound by a decision of the Privy Council unless a contrary principle of law is enunciated by the Supreme Court of Pakistan. As a necessary corollary, I am clearly of the view that the suit in its present form is neither maintainable before this Court nor is this Court possessed of the jurisdiction to entertain a claim at the instance of charterers. It the result the suit fails and is hereby dismissed with no order as to costs.
(B.T.) Suit Dismissed.
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