(From previous issue) :
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.
(Concluded)
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.
(Concluded)
