Appellate Division :
(Civil)
Surendra Kumar
Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Judgment
August 25th, 2015
Kyung Hae Maritime
Co. Ltd ………..Appellant
vs
BF Glory (Ex-Kunai)
and others ………….
…………………Respondents
Admiralty Court Act (XLIII of 2000)
Sections 3(2), 4 and 5
Subject to the provision of section 5, the admiralty jurisdiction of the High Court Division may in all cases be exercised in personam. Sub-section (2) of section 4 provides that in relation to claims mentioned in clauses (ka) to (ga) and (da) of sub-section (2) of section 3 of Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship or property in question. . ….. (17)
Admiralty Court Act (XLIII of 2000) Section 4(3)
Sub-section (3) of section 4 provides that where the amount claimed relates to any ship, aircraft or any other property over which there is maritime lien or other charge, the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship, or property in question…… (17)
Admiralty Court Act (XLIII of 2000)
Section 4(3)
Sub-section (3) of section 4 provides that where the amount claimed relates to any ship, aircraft or any other property over which there is maritime lien or other charge, the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against that hip, aircraft or property.
There was no contract between the plaintiff and defendant even then the plaintiff can sue the ship and the owner of the ship in an action in rem for realization of its dues in respect of wages of the crew.
Appellant is entitled to recover ‘his claim in respect of clause-(dha) of sub-section (2) of section 3 according to the provision of sub-section (6) of section 4 of the Admiralty Court Act for realization of the wages of the crew. The claim of the appellant, however, does not come within the purview of subsection (2), sub-section (3) and clause (a) of sub-section (4) of section 4 of the Admiralty Court Act.
…… (22 & 23)
Commercial Act of Korea
Article 520(2)(3)
Company is in existence which has the authority to proceed with this appeal.
The appellant filed an additional paper-book dated 23-8-2015 stating that although the company was dissolved in December, 2014, subsequently, the same was reinstated by resolution of the shareholders on 13th July, 2015 under article 520 (2) (3) of the Commercial Act of Korea. In support of its contention, the appellant filed the minutes of the Extraordinary General Meeting of its shareholders which is supported by a notarial certificate dated 30-7-2015. . ….. (24)
Ahsnnul Kabir, Advocate, instructed by Giasuddin Ahmed, Advocate-on-Record-For the Appellant.
SR Khoslhnabish, Advocate-on-Record-For the Respondents.
Judgment
Syed Mahmud Hossain J : This appeal, by leave, is directed against the judgment and order dated 4-5-2011 passed by the High Court Division in Admiralty Suit No. 19 of 2009 decreeing the suit against defendant No.2, Kysco Shipping Co. Ltd. and dismissing the same against defendant Nos.1, 3, and 4.
2. The facts relevant for the purpose of disposal of this appeal, in a nutshell, are:
The plaintiff company in course of its business as Ship Manager and Ship Managing Agent made a ship management agreement with defendant No.2, the disponer owner/charterer regarding the Vessel MV Kunai (now renamed as MV BF Glory, i.e. defendant No.1 Vessel) for the purpose of Marine Operation, supply of bunkers, marine insurance, claims for seamen’s wages, and for repair and new building of the vessel. Accordingly, the plaintiff Company supplied crew as per crew list to defendant No. 1 Vessel for which it was stipulated in the said Ship Management Agreement that the owners would remit the monthly management fee including seamen’s wages to the Bank Account of the Manager by telegraphic transfer. The plaintiff also supplied bunkers to defendant No. 1 Vessel through Lubricants delivery receipt dated 19-10-2008 at the port of Masan in Republic of Korea.
3. The plaintiff also supplied necessaries to defendant No.1 Vessel on 14-10-2008 and also on other dates at the owners/master disbursement. The plaintiff also completed electrical works to defendant No.1 Vessel through POS Electric Company and supplied necessary Electrical items as per list dated 23-10-2008 for the period of 7-10-2008 to 23-10-2008. The plaintiff also made services as per service report to defendant No.1 Vessel by the order of the disponer owner/charterer, defendant No.2, which commenced on 30-9-2008 and further on 16-10-2008 and completed on 23-10-2008. The plaintiff submitted the statement of account to defendant No.2 on different dates, that is, on 31-10-2008 for US $ 663211.33, on 30-11-2008 for US $ 88102.26, on 31-12-2008 for US $150728.52, on 31-1-2009 for US $ 149636.02, on 28-2-2009 for US $ 71829.51, on 31-3-2009 for US $ 49569.98 and on 30-4-2009 for US $ 44187.24 totaling an amount of US $ 15,90,442.76. Although the plaintiff appellant supplied the statement of account to the defendant for payment, the defendant did not settle the plaintiff’s claim for which the plaintiff appellant is constrained to file the admiralty suit finding the Vessel within the territorial jurisdiction of this Court.
4. It has been asserted in the plaint that the owner of defendant No.1 Vessel intends to quit the contract with the charterer, defendant No.2 as the charterer; has not paid charter hire for more than three months. The owner ,defendant No.3, asked the charterer defendant No.2, to re-deliver the vessel. As defendant No. 2, that is, the charterer is about to go into bankruptcy, the plaintiff has no other alterative but to institute the instant suit in Bangladesh for the recovery of its legitimate dues.
5. The High Court Division was pleased to admit the suit and also passed an order for arrest of defendant No.1 vessel. Defendant No. 1 and 3 appeared in the suit and furnished the bank guarantee to the extent of US $ 15,90,442.76. The High Court Division subsequently released the Vessel by order dated 1-7-2009 by accepting such bank guarantee. The bank guarantee is still lying in the custody of the Marshall of this Court.
6. Defendant Nos. 1 and 3 contested the suit by filing written statements denying all the material statements of the plaint. Though in their written statements defendant/respondent Nos. 1 & 3 asserted that if there was any supply of crew members, spare parts, repairing works, supply of bunkers and any other service done to the Vessel the same would be business transactions between the plaintiff and defendant No. 2 and, therefore, the owner of the vessel is not responsible for such service. The plaintiff may realize his . alleged claim of US $ 15,90,442.76 from defendant No.2 in personam and since defendant No.2 is bankrupt nothing may be realized from defendant No.2. Defendant No.3 is not at all liable to the plaintiff.
7. After hearing the suit, the High Court Division decreed the suit as liquidated debt only against defendant No.2 and dismissed the suit against defendant Nos. I, 3 & 4 holding that the plaintiff can only proceed against defendant No.2 as an action in personam not as an action in rem against defendant Nos. 1 and 3.
8. Feeling aggrieved by and dissatisfied with judgment and order dated 4-5-2011 passed by’ the High Court Division, the plaintiff as the leave-petitioner moved this Division by filing Civil Petition for Leave to Appeal No.514 of 2012, in which, leave was granted on 27-11-2014 resulting in Civil Appeal No.1 of 2015.
9. Mr Ahsanul Kabir, learned Advocate, appearing on behalf of the appellant, submits that the High Court Division committed error of law in not holding that sections 4(2) and 4(3) of the Admiralty Court Act, 2000 provide that supply of bunker, necessaries and costs of repairs create maritime lien upon the Vessel for which an action in rem is maintainable against defendant No.1, Vessel, and as such, the impugned judgment should be set aside. He further submits that the High Court Division misread clause(a) of sub-section (4) of section 4 of the Admiralty Court Act,2000 and most erroneously came to the finding that the plaintiff’s claim is squarely against defendant No.2, the Charterer, and as such, the impugned judgment should be set aside.
He also submits that the plaintiff’s claim is also enforceable as an action in rem under sections 3(2)(da) and 4(4) of the Admiralty Court Act, 2000 and, as such, the High Court Division erred in law in holding that defendant No.2 was not the real owner and rather disponer owner particularly under the lease agreement and also failed to appreciate that defendant No.2 is the beneficial owner of the Vessel by virtue of the lease agreement and that the plaintiff is not entitled to initiate an action in rem against defendant No.1 Vessel.
10. Mr SR Khoshnabish, learned Advocate on-Record, appearing on behalf of the respondents, submits that the High Court Division was fully justified in decreeing the suit against defendant No.2 and as such, no interference is called for. He further submits that defendant No.3 has been dissolved and as such, if any decree is passed against defendant No.3 the same cannot be executed.
11. We have considered the submissions of the learned Advocates of both the sides, perused the impugned judgment and the materials on record.
12. Before entering into the merit of the appeal, it is necessary to go through the grounds, on which, leave was granted. The grounds are quoted below:
“The High Court Division erred in law in not holding that sections 4(2) and 4(3) of the Admiralty Court Act, 2000 provide that supply of bunker, necessaries and cost of repairs create maritime lien upon the vessel for which an action in rem is maintainable against defendant No. I, vessel.
The High Court Division misread sections 4(1) and 4(3) of the Admiralty Court Act, 2000 and most erroneously came to the finding that the plaintiff’s claim is squarely against the defendant No.2 the Charterer. From a plain reading of section 3(2)(da) of the Admiralty Court Act, 2000, which widens the previous jurisdiction, the plaintiff is entitled to recover its just and lawful claim by initiating the proceeding as an action in rem against defendant No. 1 Vessel under section 4(2) of the same Act.
The supply was made on the credit of the vessel, and hence any disclaimer as to the creation of Maritime claim of the ship and/ or limiting the authority of the ship’s officers signing the receipts to bind the Vessel and owners, is null and void, as the claim has been made out in terms of conventions and also the bunkers and other necessaries were supplied on the faith and credit of the vessel.
Thus it is clear from perusal of all exhibits in the instant suit and in pursuance of the requisition made, the supply was effected. The High Court Division ought to have held that the bunker and other necessaries have been supplied on the faith and credit of the Vessel and, therefore, a lien on the Vessel is thereby created.
The High Court Division erred in law in not holding that defendant No. 2 Charterer is a beneficial owner in respect of all shares during the existence of lease period and the plaintiff is entitled to bring the proceeding as an action in rem under section 4(4)(Ka) of the Admiralty Court Act, 2000 against defendant No.1 Vessel and its owner defendant No.3 who furnished the
Bank Guarantee as security for the plaintiff’s claim.
The plaintiff’s claim is also enforceable as an action in rem under sections 3(2)(Da) and 4(2) of the Admiralty Court Act, 2000, and as such the High Court Division committed an error of law in holding that defendant No .. 2 is not the real owner and rather the disponer owner particularly under the lease agreement and also failed to appreciate that defendant No.2 is the beneficial owner of the Vessel by virtue of lease agreement and the plaintiff is entitled to proceed in an action in rem against defendant No.1 Vessel.”
13. In order to address the grounds of the leave granting order and the submissions of the learned Advocates of both the sides, it is necessary to go through the relevant provision of the Admiralty Court Act, 2000. The relevant provisions of the Admiralty Court Act, 2000 are quoted below:
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(?) ??????? ??? ?? ???????? ?? ???? ????? ???????? ?? ??????? ????????????? ????? ?? ????? ????? ? ???????? ???????? ????????? ??? ????????????? ??????? ??????-????????? ???? ?????????? ????????? ??? ???? ;
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………………
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……………………..
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(?) ??-???? (?) (?) -?? ???????? ????? (???????) ?????? ???? ????? ?????? ???? ??? ????? ???? ????? ?? ????? ???? ??????????? ????, ??? ????? ?? ??????? ???????, ??????? ?? ?????????? ????????? ???? ??????? ????? ????? ??????????? ?????
(?) ?? ????? ?????????? ????????? ??????????? ???????? ???????? ????, ????
(?) ??? ????? ?? ??????? ???????? ??? ????????? ??? ?? ?? ???, ???????? ??? ?? ?? ??? ??? ???? ??????? ???????? ?? ?????? ????? ??????? ????? ?? ???;
………………………
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(?) ???? ? ?? ??-???? (?) ?? ??? (?) ???? (?) ??? (?) – ?? ???????? ????? ???????? ????????? ????? ?????? ???????? ??????? ????????? ??????? ????????? ????? ?? ????????? ???????? ?????? ?? ??? ?? ??????? ?????? ??? ??????
(?) ??? ??????? ???? ??? ??? ?????, ????? ?? ???? ??? ???????? ????????? ?? ????? ??? ????????? ??????????? (???????? ????) ?? ??????? ????? ????, ???? ???? ???? ?????, ?????, ?? ????????? ???????? ????????? ????? ?????? ???????? ??????? ????????? ??????? ?????? ?? ??? ?? ??????? ?????? ??? ??????
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(?) ??? ????? ???? ?????? ??? ???? ??????? ??? ??????? ??? ???? ???????? ?????? (??????????) ????????? ???? ; ??
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(5) …………………..
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14. The question to be resolved in the appeal is whether the plaintiff can file an admiralty suit in rem for realization for price of bunker, necessaries, wages of crew and the cost of the repairs and also ship management fees.
15. The High Court Division decreed the suit against defendant No.2 and dismissed it against defendant Nos.1 and 3. The High Court Division came to a finding that defendant No.2 was not admittedly the real owner and rather the disponent owner, particularly under a lease agreement and that the debt incurred by it could not create a lien upon the properties not owned by it.
The High Court Division further found that the Vessel MV BF Glory being the property of real owner, M/s. Dossan Capital Co. Limited (defendant No.3), could not be liable for the debt created by the lease user of the Vessel, liability of which always remained with the said company Mis. Kysco Shipping Co. Ltd. (defendant No.2).
The High Court Division held that the maritime claim of the plaintiff in respect of price of bunkers, necessaries and cost of repairs of the vessel could not create maritime lien upon the Vessel MV BF Glory and as such, could not be realized in Admiralty Jurisdiction through an action in rem and therefore, the claim of the plaintiff against the res as an action in rem could neither be maintainable against the Vessel itself nor against the real owner of the Vessel M/s. Doosan Capital Co. Limited (defendant No.3).
16. The High Court Division also held the plaintiff rendered service in favour of Kysco Shipping Lines Ltd.(defendant No.2) under the ship management agreement and supplied bunkers, necessaries to the Vessel and also rendered services in respect of the repair of the Vessel under the authority of defendant No.2 and therefore, defendant No.2 was liable to pay price due to the plaintiff. The High Court Division was of the view that the admiralty suit was maintainable as an action in personam against defendant No.2.
17. sub-section (1) of Section 4 of Admiralty Court Act, 2000 provides that subject to the provision of Section 5, the admiralty jurisdiction of the High Court Division may in all cases be exercised in personam. Sub-section (2) of Section 4 provides that in relation to claims mentioned in clauses(ka) to (ga) and (da) of sub-section(2) of Section 3 of Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship or property in question.
(To be continued)
18. Sub-section (3) of Section 4 provides that where the amount claimed relates to any ship, aircraft or any other property over which there is maritime lien or other charge, the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against that ship, aircraft or property.
19. Sub-section (4) of Section 4 provides that in relation to claims as mentioned in clauses-(Ga) to (Tha) of sub-section (2) of Section 3 relating to any ship, the person who would be liable for the claim in an action in personam was, when the cause of action arose, as the owner or charterer of, or person in possession or in control of, the ship, whether the claim gives rise to a maritime lien on the ship or not an action in rem can be brought in the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty against the following ships, namely, (a) if at the time when action is brought, the person has beneficial ownership over all the shares of the ship; or (b) if at the time when action is brought, any other ship is under the beneficial ownership of the said person.
20. sub-section (6) of Section 4 of the Admiralty Court Act provides that notwithstanding anything contained in the preceding clauses of the section, an action in rem shall not be brought in the admiralty jurisdiction of the High Court Division as the Court of Admiralty for any claim mentioned in clause(dha) of subsection(2) of section 3 unless the claim relates wholly or partly to wages.
21. Clause-(Tha) of sub-section(2) of Section 3 provides for any claim in respect of the goods or materials supplied to a ship for her operation or maintenance. Clause-(Da) of subsection (2) of Section 3 provides for any claim in respect of construction, repair or equipment of a ship or dock charges or dues. Clause-(Dha) of sub-section (2) of Section 3 provides for any claim for wages of a master or member of the crew of a ship or any claim for any money or property recoverable as wages of master or member of the crew under the Merchant Shipping Ordinance,1983.
22. Having gone through Section 4 of the Admiralty Court Act, in general, and clauses(Tha), (Da) and (Dha) of sub-section (2) of section 3 and sub-section (6) of section 4 thereof, in particular, we find that the appellant is entitled to recover his claim in respect of clause-(dha) of sub-section (2) of Section 3 according to the provision of sub-section(6) of section 4 of the Admiralty Court Act for realization of the wages of the crew. The claim of the appellant, however, does not come within the purview of sub-section (2), sub-section (3) and clause (a) of sub-section (4) of section 4 of the Admiralty Court Act.
23. Therefore, the plaintiff is entitled to bring a proceeding as an action in rem under Section 4(6) of the Admiralty Court Act, 2000 for realization of wages of the crews as mentiored in clause (dha) of sub-section (2) of section 3 against defendant No. I, the Vessel and its owner, defendant No.3, although the plaintiff-appellant has not entered into any contract with defendant No.3. It is of course true that there was no contract between the plaintiff-appellant and defendant-respondent No.3 even then the plaintiff-appellant can sue the ship (defendant respondent No.1) and the owner of the ship (defendant-respondent No.3) in an action in rem for realization of its dues in respect of
wages of the crews above according to section 4 (6) of the Admiralty Act, 2000.
24. Respondent Nos. l and 2 filed an additional paper-book stating that the plaintiff-appellant company, Kyung Hae Maritime Co. Ltd., had been dissolved in December, 2014. In support of their contention, the respondents filed an electronic copy of the plaintiff company, Kyung Hae Maritime Co. Ltd’s Corporate Registry Certificate as well as its English translation. The appellant filed an additional paperbook dated 23-8-2015 stating that although the company was dissolved in December, 2014, subsequently, the same was reinstated by resolution of the share holders on 13th July, 2015 under article 520(2)(3) of the Commercial Act of Korea. In support of its contention, the appellant filed the minutes of the Extraordinary General Meeting of its share holders which is supported by a notarial certificate dated 30-7-2015. Therefore, we are of the view that the company is in existence which has the authority to proceed with this appeal.
25. The plaintiff-appellant is entitled to recover the amount spent on account of wages of the crew. The amount spent for the payment of wages of crew is as follows:
Wages of the crew US $ 3,35,585.69 (at the relevant time US$l=Taka 69.35)
26. The detailed calculation of the amount spent by the plaintiff-appellant on the head of wages of crew appears to be correct.
27. In the light of the findings, we find substance in this appeal. Accordingly, the Admiralty Suit is decreed in part for US. $ 3,35,585.69 (at the relevant time 1 US $ equivalent to Taka 69.35) against defendant Nos. 1, 2 and 3.
Accordingly, the appeal is allowed in part.
There is no order as to costs.
(Civil)
Surendra Kumar
Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Judgment
August 25th, 2015
Kyung Hae Maritime
Co. Ltd ………..Appellant
vs
BF Glory (Ex-Kunai)
and others ………….
…………………Respondents
Admiralty Court Act (XLIII of 2000)
Sections 3(2), 4 and 5
Subject to the provision of section 5, the admiralty jurisdiction of the High Court Division may in all cases be exercised in personam. Sub-section (2) of section 4 provides that in relation to claims mentioned in clauses (ka) to (ga) and (da) of sub-section (2) of section 3 of Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship or property in question. . ….. (17)
Admiralty Court Act (XLIII of 2000) Section 4(3)
Sub-section (3) of section 4 provides that where the amount claimed relates to any ship, aircraft or any other property over which there is maritime lien or other charge, the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship, or property in question…… (17)
Admiralty Court Act (XLIII of 2000)
Section 4(3)
Sub-section (3) of section 4 provides that where the amount claimed relates to any ship, aircraft or any other property over which there is maritime lien or other charge, the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against that hip, aircraft or property.
There was no contract between the plaintiff and defendant even then the plaintiff can sue the ship and the owner of the ship in an action in rem for realization of its dues in respect of wages of the crew.
Appellant is entitled to recover ‘his claim in respect of clause-(dha) of sub-section (2) of section 3 according to the provision of sub-section (6) of section 4 of the Admiralty Court Act for realization of the wages of the crew. The claim of the appellant, however, does not come within the purview of subsection (2), sub-section (3) and clause (a) of sub-section (4) of section 4 of the Admiralty Court Act.
…… (22 & 23)
Commercial Act of Korea
Article 520(2)(3)
Company is in existence which has the authority to proceed with this appeal.
The appellant filed an additional paper-book dated 23-8-2015 stating that although the company was dissolved in December, 2014, subsequently, the same was reinstated by resolution of the shareholders on 13th July, 2015 under article 520 (2) (3) of the Commercial Act of Korea. In support of its contention, the appellant filed the minutes of the Extraordinary General Meeting of its shareholders which is supported by a notarial certificate dated 30-7-2015. . ….. (24)
Ahsnnul Kabir, Advocate, instructed by Giasuddin Ahmed, Advocate-on-Record-For the Appellant.
SR Khoslhnabish, Advocate-on-Record-For the Respondents.
Judgment
Syed Mahmud Hossain J : This appeal, by leave, is directed against the judgment and order dated 4-5-2011 passed by the High Court Division in Admiralty Suit No. 19 of 2009 decreeing the suit against defendant No.2, Kysco Shipping Co. Ltd. and dismissing the same against defendant Nos.1, 3, and 4.
2. The facts relevant for the purpose of disposal of this appeal, in a nutshell, are:
The plaintiff company in course of its business as Ship Manager and Ship Managing Agent made a ship management agreement with defendant No.2, the disponer owner/charterer regarding the Vessel MV Kunai (now renamed as MV BF Glory, i.e. defendant No.1 Vessel) for the purpose of Marine Operation, supply of bunkers, marine insurance, claims for seamen’s wages, and for repair and new building of the vessel. Accordingly, the plaintiff Company supplied crew as per crew list to defendant No. 1 Vessel for which it was stipulated in the said Ship Management Agreement that the owners would remit the monthly management fee including seamen’s wages to the Bank Account of the Manager by telegraphic transfer. The plaintiff also supplied bunkers to defendant No. 1 Vessel through Lubricants delivery receipt dated 19-10-2008 at the port of Masan in Republic of Korea.
3. The plaintiff also supplied necessaries to defendant No.1 Vessel on 14-10-2008 and also on other dates at the owners/master disbursement. The plaintiff also completed electrical works to defendant No.1 Vessel through POS Electric Company and supplied necessary Electrical items as per list dated 23-10-2008 for the period of 7-10-2008 to 23-10-2008. The plaintiff also made services as per service report to defendant No.1 Vessel by the order of the disponer owner/charterer, defendant No.2, which commenced on 30-9-2008 and further on 16-10-2008 and completed on 23-10-2008. The plaintiff submitted the statement of account to defendant No.2 on different dates, that is, on 31-10-2008 for US $ 663211.33, on 30-11-2008 for US $ 88102.26, on 31-12-2008 for US $150728.52, on 31-1-2009 for US $ 149636.02, on 28-2-2009 for US $ 71829.51, on 31-3-2009 for US $ 49569.98 and on 30-4-2009 for US $ 44187.24 totaling an amount of US $ 15,90,442.76. Although the plaintiff appellant supplied the statement of account to the defendant for payment, the defendant did not settle the plaintiff’s claim for which the plaintiff appellant is constrained to file the admiralty suit finding the Vessel within the territorial jurisdiction of this Court.
4. It has been asserted in the plaint that the owner of defendant No.1 Vessel intends to quit the contract with the charterer, defendant No.2 as the charterer; has not paid charter hire for more than three months. The owner ,defendant No.3, asked the charterer defendant No.2, to re-deliver the vessel. As defendant No. 2, that is, the charterer is about to go into bankruptcy, the plaintiff has no other alterative but to institute the instant suit in Bangladesh for the recovery of its legitimate dues.
5. The High Court Division was pleased to admit the suit and also passed an order for arrest of defendant No.1 vessel. Defendant No. 1 and 3 appeared in the suit and furnished the bank guarantee to the extent of US $ 15,90,442.76. The High Court Division subsequently released the Vessel by order dated 1-7-2009 by accepting such bank guarantee. The bank guarantee is still lying in the custody of the Marshall of this Court.
6. Defendant Nos. 1 and 3 contested the suit by filing written statements denying all the material statements of the plaint. Though in their written statements defendant/respondent Nos. 1 & 3 asserted that if there was any supply of crew members, spare parts, repairing works, supply of bunkers and any other service done to the Vessel the same would be business transactions between the plaintiff and defendant No. 2 and, therefore, the owner of the vessel is not responsible for such service. The plaintiff may realize his . alleged claim of US $ 15,90,442.76 from defendant No.2 in personam and since defendant No.2 is bankrupt nothing may be realized from defendant No.2. Defendant No.3 is not at all liable to the plaintiff.
7. After hearing the suit, the High Court Division decreed the suit as liquidated debt only against defendant No.2 and dismissed the suit against defendant Nos. I, 3 & 4 holding that the plaintiff can only proceed against defendant No.2 as an action in personam not as an action in rem against defendant Nos. 1 and 3.
8. Feeling aggrieved by and dissatisfied with judgment and order dated 4-5-2011 passed by’ the High Court Division, the plaintiff as the leave-petitioner moved this Division by filing Civil Petition for Leave to Appeal No.514 of 2012, in which, leave was granted on 27-11-2014 resulting in Civil Appeal No.1 of 2015.
9. Mr Ahsanul Kabir, learned Advocate, appearing on behalf of the appellant, submits that the High Court Division committed error of law in not holding that sections 4(2) and 4(3) of the Admiralty Court Act, 2000 provide that supply of bunker, necessaries and costs of repairs create maritime lien upon the Vessel for which an action in rem is maintainable against defendant No.1, Vessel, and as such, the impugned judgment should be set aside. He further submits that the High Court Division misread clause(a) of sub-section (4) of section 4 of the Admiralty Court Act,2000 and most erroneously came to the finding that the plaintiff’s claim is squarely against defendant No.2, the Charterer, and as such, the impugned judgment should be set aside.
He also submits that the plaintiff’s claim is also enforceable as an action in rem under sections 3(2)(da) and 4(4) of the Admiralty Court Act, 2000 and, as such, the High Court Division erred in law in holding that defendant No.2 was not the real owner and rather disponer owner particularly under the lease agreement and also failed to appreciate that defendant No.2 is the beneficial owner of the Vessel by virtue of the lease agreement and that the plaintiff is not entitled to initiate an action in rem against defendant No.1 Vessel.
10. Mr SR Khoshnabish, learned Advocate on-Record, appearing on behalf of the respondents, submits that the High Court Division was fully justified in decreeing the suit against defendant No.2 and as such, no interference is called for. He further submits that defendant No.3 has been dissolved and as such, if any decree is passed against defendant No.3 the same cannot be executed.
11. We have considered the submissions of the learned Advocates of both the sides, perused the impugned judgment and the materials on record.
12. Before entering into the merit of the appeal, it is necessary to go through the grounds, on which, leave was granted. The grounds are quoted below:
“The High Court Division erred in law in not holding that sections 4(2) and 4(3) of the Admiralty Court Act, 2000 provide that supply of bunker, necessaries and cost of repairs create maritime lien upon the vessel for which an action in rem is maintainable against defendant No. I, vessel.
The High Court Division misread sections 4(1) and 4(3) of the Admiralty Court Act, 2000 and most erroneously came to the finding that the plaintiff’s claim is squarely against the defendant No.2 the Charterer. From a plain reading of section 3(2)(da) of the Admiralty Court Act, 2000, which widens the previous jurisdiction, the plaintiff is entitled to recover its just and lawful claim by initiating the proceeding as an action in rem against defendant No. 1 Vessel under section 4(2) of the same Act.
The supply was made on the credit of the vessel, and hence any disclaimer as to the creation of Maritime claim of the ship and/ or limiting the authority of the ship’s officers signing the receipts to bind the Vessel and owners, is null and void, as the claim has been made out in terms of conventions and also the bunkers and other necessaries were supplied on the faith and credit of the vessel.
Thus it is clear from perusal of all exhibits in the instant suit and in pursuance of the requisition made, the supply was effected. The High Court Division ought to have held that the bunker and other necessaries have been supplied on the faith and credit of the Vessel and, therefore, a lien on the Vessel is thereby created.
The High Court Division erred in law in not holding that defendant No. 2 Charterer is a beneficial owner in respect of all shares during the existence of lease period and the plaintiff is entitled to bring the proceeding as an action in rem under section 4(4)(Ka) of the Admiralty Court Act, 2000 against defendant No.1 Vessel and its owner defendant No.3 who furnished the
Bank Guarantee as security for the plaintiff’s claim.
The plaintiff’s claim is also enforceable as an action in rem under sections 3(2)(Da) and 4(2) of the Admiralty Court Act, 2000, and as such the High Court Division committed an error of law in holding that defendant No .. 2 is not the real owner and rather the disponer owner particularly under the lease agreement and also failed to appreciate that defendant No.2 is the beneficial owner of the Vessel by virtue of lease agreement and the plaintiff is entitled to proceed in an action in rem against defendant No.1 Vessel.”
13. In order to address the grounds of the leave granting order and the submissions of the learned Advocates of both the sides, it is necessary to go through the relevant provision of the Admiralty Court Act, 2000. The relevant provisions of the Admiralty Court Act, 2000 are quoted below:
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……………………..
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(?) ??? ??????? ????????, ??-???? (?) (?) ?? ???? ????????? ???????, ??????? ????? ???????? ????? ????? ??? ????????? ??????? ??????? ???, ????? ?? ???? ????? ?????? ???? ??????? ?????? ??? ????? ?????? ??????? ??? ??? ?????? ???? ??? ??????? ?????? ???? ??????? ??????????? ???????
(?) ??-???? (?) (?) -?? ???????? ????? (???????) ?????? ???? ????? ?????? ???? ??? ????? ???? ????? ?? ????? ???? ??????????? ????, ??? ????? ?? ??????? ???????, ??????? ?? ?????????? ????????? ???? ??????? ????? ????? ??????????? ?????
(?) ?? ????? ?????????? ????????? ??????????? ???????? ???????? ????, ????
(?) ??? ????? ?? ??????? ???????? ??? ????????? ??? ?? ?? ???, ???????? ??? ?? ?? ??? ??? ???? ??????? ???????? ?? ?????? ????? ??????? ????? ?? ???;
………………………
?? ????????? ??????? ???????? ??????? ??????? ???????? ?????? — (?) ???? ? ?? ????? ????????, ???????? ??????? ????????? ??????? ??? ????????, ?????? ?? ???????? ?? ??????? ?????? ??? ?????
(?) ???? ? ?? ??-???? (?) ?? ??? (?) ???? (?) ??? (?) – ?? ???????? ????? ???????? ????????? ????? ?????? ???????? ??????? ????????? ??????? ????????? ????? ?? ????????? ???????? ?????? ?? ??? ?? ??????? ?????? ??? ??????
(?) ??? ??????? ???? ??? ??? ?????, ????? ?? ???? ??? ???????? ????????? ?? ????? ??? ????????? ??????????? (???????? ????) ?? ??????? ????? ????, ???? ???? ???? ?????, ?????, ?? ????????? ???????? ????????? ????? ?????? ???????? ??????? ????????? ??????? ?????? ?? ??? ?? ??????? ?????? ??? ??????
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14. The question to be resolved in the appeal is whether the plaintiff can file an admiralty suit in rem for realization for price of bunker, necessaries, wages of crew and the cost of the repairs and also ship management fees.
15. The High Court Division decreed the suit against defendant No.2 and dismissed it against defendant Nos.1 and 3. The High Court Division came to a finding that defendant No.2 was not admittedly the real owner and rather the disponent owner, particularly under a lease agreement and that the debt incurred by it could not create a lien upon the properties not owned by it.
The High Court Division further found that the Vessel MV BF Glory being the property of real owner, M/s. Dossan Capital Co. Limited (defendant No.3), could not be liable for the debt created by the lease user of the Vessel, liability of which always remained with the said company Mis. Kysco Shipping Co. Ltd. (defendant No.2).
The High Court Division held that the maritime claim of the plaintiff in respect of price of bunkers, necessaries and cost of repairs of the vessel could not create maritime lien upon the Vessel MV BF Glory and as such, could not be realized in Admiralty Jurisdiction through an action in rem and therefore, the claim of the plaintiff against the res as an action in rem could neither be maintainable against the Vessel itself nor against the real owner of the Vessel M/s. Doosan Capital Co. Limited (defendant No.3).
16. The High Court Division also held the plaintiff rendered service in favour of Kysco Shipping Lines Ltd.(defendant No.2) under the ship management agreement and supplied bunkers, necessaries to the Vessel and also rendered services in respect of the repair of the Vessel under the authority of defendant No.2 and therefore, defendant No.2 was liable to pay price due to the plaintiff. The High Court Division was of the view that the admiralty suit was maintainable as an action in personam against defendant No.2.
17. sub-section (1) of Section 4 of Admiralty Court Act, 2000 provides that subject to the provision of Section 5, the admiralty jurisdiction of the High Court Division may in all cases be exercised in personam. Sub-section (2) of Section 4 provides that in relation to claims mentioned in clauses(ka) to (ga) and (da) of sub-section(2) of Section 3 of Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against the ship or property in question.
(To be continued)
18. Sub-section (3) of Section 4 provides that where the amount claimed relates to any ship, aircraft or any other property over which there is maritime lien or other charge, the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through an action in rem against that ship, aircraft or property.
19. Sub-section (4) of Section 4 provides that in relation to claims as mentioned in clauses-(Ga) to (Tha) of sub-section (2) of Section 3 relating to any ship, the person who would be liable for the claim in an action in personam was, when the cause of action arose, as the owner or charterer of, or person in possession or in control of, the ship, whether the claim gives rise to a maritime lien on the ship or not an action in rem can be brought in the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty against the following ships, namely, (a) if at the time when action is brought, the person has beneficial ownership over all the shares of the ship; or (b) if at the time when action is brought, any other ship is under the beneficial ownership of the said person.
20. sub-section (6) of Section 4 of the Admiralty Court Act provides that notwithstanding anything contained in the preceding clauses of the section, an action in rem shall not be brought in the admiralty jurisdiction of the High Court Division as the Court of Admiralty for any claim mentioned in clause(dha) of subsection(2) of section 3 unless the claim relates wholly or partly to wages.
21. Clause-(Tha) of sub-section(2) of Section 3 provides for any claim in respect of the goods or materials supplied to a ship for her operation or maintenance. Clause-(Da) of subsection (2) of Section 3 provides for any claim in respect of construction, repair or equipment of a ship or dock charges or dues. Clause-(Dha) of sub-section (2) of Section 3 provides for any claim for wages of a master or member of the crew of a ship or any claim for any money or property recoverable as wages of master or member of the crew under the Merchant Shipping Ordinance,1983.
22. Having gone through Section 4 of the Admiralty Court Act, in general, and clauses(Tha), (Da) and (Dha) of sub-section (2) of section 3 and sub-section (6) of section 4 thereof, in particular, we find that the appellant is entitled to recover his claim in respect of clause-(dha) of sub-section (2) of Section 3 according to the provision of sub-section(6) of section 4 of the Admiralty Court Act for realization of the wages of the crew. The claim of the appellant, however, does not come within the purview of sub-section (2), sub-section (3) and clause (a) of sub-section (4) of section 4 of the Admiralty Court Act.
23. Therefore, the plaintiff is entitled to bring a proceeding as an action in rem under Section 4(6) of the Admiralty Court Act, 2000 for realization of wages of the crews as mentiored in clause (dha) of sub-section (2) of section 3 against defendant No. I, the Vessel and its owner, defendant No.3, although the plaintiff-appellant has not entered into any contract with defendant No.3. It is of course true that there was no contract between the plaintiff-appellant and defendant-respondent No.3 even then the plaintiff-appellant can sue the ship (defendant respondent No.1) and the owner of the ship (defendant-respondent No.3) in an action in rem for realization of its dues in respect of
wages of the crews above according to section 4 (6) of the Admiralty Act, 2000.
24. Respondent Nos. l and 2 filed an additional paper-book stating that the plaintiff-appellant company, Kyung Hae Maritime Co. Ltd., had been dissolved in December, 2014. In support of their contention, the respondents filed an electronic copy of the plaintiff company, Kyung Hae Maritime Co. Ltd’s Corporate Registry Certificate as well as its English translation. The appellant filed an additional paperbook dated 23-8-2015 stating that although the company was dissolved in December, 2014, subsequently, the same was reinstated by resolution of the share holders on 13th July, 2015 under article 520(2)(3) of the Commercial Act of Korea. In support of its contention, the appellant filed the minutes of the Extraordinary General Meeting of its share holders which is supported by a notarial certificate dated 30-7-2015. Therefore, we are of the view that the company is in existence which has the authority to proceed with this appeal.
25. The plaintiff-appellant is entitled to recover the amount spent on account of wages of the crew. The amount spent for the payment of wages of crew is as follows:
Wages of the crew US $ 3,35,585.69 (at the relevant time US$l=Taka 69.35)
26. The detailed calculation of the amount spent by the plaintiff-appellant on the head of wages of crew appears to be correct.
27. In the light of the findings, we find substance in this appeal. Accordingly, the Admiralty Suit is decreed in part for US. $ 3,35,585.69 (at the relevant time 1 US $ equivalent to Taka 69.35) against defendant Nos. 1, 2 and 3.
Accordingly, the appeal is allowed in part.
There is no order as to costs.
