Bangladesh Inland Water Transport Corporation (Appellant )
Vs.
Al-Falah Shipping Lines Ltd. and others (Respondents)
Supreme Court
Appellate Division
(Civil)
JUSTICE
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Bimalendu Bikash Roy Choudhury
Judgment dated May 8, 1999.
The Courts of Admiralty Act, 1861
The Inland Shipping Ordinance, 1976, Section 52
Section 52 of the Shipping Ordinance, 1976 gives special powers to the Marine Court notwithstanding anything contained in the Code of Criminal Procedure to try any case under Chapter IV for Shipping casualties. The Marine Court exercises its jurisdiction as a criminal court and it can award compensation. An order of the Marine Court to pay compensation shall have the effect of a Civil Court decree and sub-section (3) of section 52 speaks that it is recoverable as if it is a decree of a Civil Court. There is nothing in the Shipping Ordinance, 1976 specifically barring the jurisdiction of Admiralty Court to entertain any claim for damages done by any ship……..(9)
Cases Referred to-
Bangladesh Inland Water Transport Corporation vs. Nazma Transport Company 45 DLR 152; Falha Shipping Lines Ltd and another vs. Bangladesh Inland Water Transport Corporation and others 42 DLR 289; Haji Mohammad Suruj Miah vs. Haji Abul Hashem 20 DLR.
Lawyers Involved:
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate — For the Appellant.
Dr. M Zahir, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record—For Respondents.
Civil Appeal No. 23 of 1994.
JUDGEMENT
Latifur Rahman J.- This appeal by leave by Bangladesh Inland Water Transport Corporation- defendant No. 1 is from the Judgment and decree dated 10-11-91 passed by the High Court Division in Admiralty Suit No.6 of 1986 partly decreeing the plaintiff-respondent’s suit for Taka 1,58,19,963.30 against all the defendants including the appellant with costs.
2. The vessel MV Al-Falah-1, plaintiff No. 2 was owned by plaintiff No. 1 Al-Falah Shipping Lines Ltd., a public limited company. The vessel was carrying 800 metric tons of wheat in bulk belonging to the Government of Bangladesh from Chittagong to Narayanganj on 25-1-85. Defendant No. 1-appellants Oil Tanker T-1059 (T-4-175) was coming from the opposite side towards Chandpur from Narayanganj. The plaintiffs alleged that at about 2-00/3-00 PM the appellants Oil Tanker suddenly changed its course and wrongly hit MV Al-Falah- 1 on the port side and split the cargo hold No. 2 resulting in the sinking of MV Al Falah- 1 with full load of wheat near Balakir Char in Gazaria Upazila. The plaintiff’s case was that the accident took place solely due to the negligence on the part of the appellant’s employees, namely, defendant No.3 who was the master of the vessel and defendant No. 4 who was the second master. The incident was reported to the Officer-in-Charge. Gazaria PS on 26-1-85 who after investigation submitted an FIR under sections 280/427 of the Penal Code against the defendants. The Mercantile Marine Safety Department also investigated into the accident and by a report dated 10-12-85 found the defendants guilty of negligent and rash driving of their oil tanker. The plaintiffs claimed a total amount of Taka 2,01,62,716.70 against the defendants.
3. The defendants in their written statement blamed the vessed MV A1-Falah- 1 for the accident stating that the latter was being navigated from Gazipur to the place of collision without any master and that the accident took place because the vessel MV Al-Falah 1 suddenly changed her course in spite of the defendant’s tanker blowing short whistles after controlling its speed. The defendants returned to Narayanganj and filed a GD Entry on the same day. The Oil Tanker also sustained extensive damage to the extent of Taka 24,389.97. The defendants lodged a counter-claim for a sum of Taka 1,28,235.37.
4. After discussing the oral and documentary evidence of both sides the learned Admiralty Judge found PWs 6 and 7 to be independent and disinterested eye-witnesses to the occurrence and relying upon their testimony held that the oil tanker was responsible for the accident and, as such, the defendants are liable for the damage. He also held that although in Marine Court Case instituted under the Inland Shipping Ordinance, 1976 a Magistrate, 1st Class, Dhaka by Judgment and order dated 4-7-88 found that the prosecution failed to prove the case beyond reasonable doubt against the defendant-appellant and its second master for the accident in question, the said Judgment will not have any bearing in the present case. The learned Admiralty Judge found from Ext.25 series that the market value of the vessel MV Al-Falah-1 at Taka 80,10,000.00 was proved and from Ext. 26 the price of 800 metric tons of wheat of Taka 66,53,384.30 and salvage operation costs at Taka 11,56,570.00 were also proved. He accepted these claims, but found that the plaintiffs have not been able to prove their claim in respect of items Nos. 4, 5 and 6 in the plaint, namely, average net revenue loss, salary and food charge of the staff of the vessel and salary of the staff for ten days and therefore disallowed the same. As for the defendant’s counter-claim he found that the defendants totally failed to prove and establish the same. The suit was therefore decreed in part for an amount of Taka 1,58,19,963,30 on contest against the defendants with costs but without interest.
5. Leave was granted to consider the submission of the learned Advocate for the defendant-appellant that the Admiralty Court has no jurisdiction to entertain a claim of compensation for accident taking place in Inland Waters and for any claim of compensation for accident in Inland waters the plaintiff can recover compensation from the civil Court. Leave was also granted to consider the submission of the learned Advocate for the appellant that the plaintiff failed to produce any cogent and reliable evidence that the market value of the vessel was Taka 80,10,000.00 and Exhibit 25 series in fact do not prove the market value of the vessel at all. Regarding the price of 800 metric tons of wheat, the learned Advocate submits that admittedly the wheat belongs to the Government of Bangladesh and there is no finding that there was either a total or partial loss of the wheat and as a matter of fact there is no finding that the plaintiffs are entitled to the price of wheat which belongs to the Government. With regard to the salvage operation costs, the learned Advocate submits that an amount of Taka 11,56,579 was decreed against the salvage expenses without any proof that the said amount was actually incurred by the plaintiff for the salvage operation. In other words, the learned Advocate of the appellant submits that the learned Admiralty Judge fixed the quantum of compensations in all these three heads without there being any basis or tangible evidence on record.
6. Dr. Rafiqur Rahman, learned Advocate appearing for the defendant-appellant submits that the suit is not maintainable in the Admiralty Jurisdiction as the accident took place in Inland waters and the Inland Shipping Ordinance, 1976 provides not only for trial of offences, but section 52 of the Ordinance gives special powers to the Marine Court to pay compensation not exceeding taka one lac for loss of life, injury to person and property and in case of damage to any other vessel and the same being realisable as a decree of civil Court. He also refers to the case of Bangladesh Inland Water Transport Corporation vs. Nazma Transport Company reported in 45 DLR 152, wherein the Admiralty Judge held that an award of compensation by Marine Court is as good as a decree passed by a civil Court and, as such, present Admiralty suit is totally misconceived.
7. With regard to the jurisdiction of the Admiralty Court to entertain the claim of compensation for the accident, it is found that a preliminary issue was framed in this case by another learned Admiralty Judge and on hearing the parties it was held by the Admiralty Judge on 31-8-89 that the Admiralty Court had jurisdiction to entertain the claim. Subsequently in the suit, other issues were decided on merit by the present learned Admiralty Judge of the High Court Division. The preliminary point with regard to the jurisdiction of the Admiralty Court in the present case, Falha Shipping Lines Ltd and another vs. Bangladesh Inland Water Transport Corporation and others reported in 42 DLR 289. In that decision, the learned Judge after an elaborate consideration of various cases in the Admiralty jurisdiction held in paragraph 18 of the said reported decision as follows:
“It is thus seen that the Court of Admiralty in England had always exercised jurisdiction over inland waters with respect to any cause of action arising out of or in relation to any vessel in any waters within the body of the country and on high seas but not between vessel propelled by oars. A cause of action arising out of tort has never been excluded or taken away from the jurisdiction of the High Court, either by the provisions of the Inland Mechanically Propelled Vessel Act, 1917 or by Ordinance, 1976.”
8. Dr. M Zahir, learned Advocate, on the other hand, appearing for the plaintiff-respondent has referred before us a passage from ‘Admiralty Jurisdiction and Practice’ written by Meeson from where he has shown that historically, the High Court of Admiralty exercised jurisdiction over claims for towage on the high seas and not within the body of country and this jurisdiction was extended by section 6 of the Admiralty Court Act, 1840 to claims within the body of a country. Dr Zahir also referred before us a passage from Roscosis Admiralty Practices, 5th Edition at pages 2-3 which narrates the genesis of the Admiralty jurisdiction in England. He has referred from the passage that in mediaeval times was there a Lord High Admiral, but also Admirals for different portions of the seas around the British Islands, where these officers necessarily possessed disciplinary powers over vessels under their command and in that sense they were Sea Magistrates. They had to determine dispute in regard to the capture at sea of enemy property. By a natural evolution they also became Arbitrators in Maritime disputes. The learned Advocate submits that by gradual evolution as has been found in the Admiralty Court Act, 1861, this concept of exercising Admiralty jurisdiction from the high seas to inland water have been gradually extended. Section 7 of Admiralty Court Act, 1861 lays down that the High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship. In the present case, the jurisdiction issue was decided in the case of Al-Falha Shipping Lines Ltd and another vs. Bangladesh Inland Water Transport Corporation and others reported in 42 DLR 289 wherein the learned Admiralty Judge at paragraph 16 also held as follows-
“From the above, it is, therefore, clear that the Court of Admiralty of this Court would have the same jurisdiction as that of the Court of Admiralty in England and as a matter of fact that Court of Admiralty in England never admitted to have made any distinction between collisions within the body of the country and collision on the high seas.”
9. To meet the argument of Dr. Rafiqur Rahman it may be stated that section 52 of the Shipping Ordinance, 1976 gives special powers to the Marine Court notwithstanding anything contained in the Code of Criminal Procedure to try any case under Chapter IV for Shipping casualties. The Marine Court exercises its jurisdiction as a criminal court and it can award compensation. An order to pay compensation shall have the effect of a civil Court decree and sub-section, 3 of section 52 only speaks that it is recoverable as if it is a decree of a civil Court. There is nothing beyond that. There is also nothing in the Shipping Ordinance, 1976 specifically barring the jurisdiction of Admiralty Court to entertain any claim for damages done by any ship. The decision of Bangladesh Inland Water Transport Corporation vs. Nazma Transport Company reported in 45 DLR 152 as cited by the learned Advocate for the appellant is not an authority for deciding the Admiralty jurisdiction. 10. In the case of Haji Mohammad Suruj Miah and another vs. Owners and parties interested in the Vessel Ml Madina, the owner being Haji Abul Hashem reported in 20 DLR 342 as far back as in 1967 it was held that the Admiralty Court had jurisdiction to hear and determine Marine accident for damages over Inland Water Ways in the province which is similar to that of the Court of Admiralty in England.
11. Thus we have no doubt in holding that the Admiralty Court has jurisdiction to entertain the suit and the suit is thus maintainable.
12. Now, turning to the merit of the case we find that major portion of the Judgment deals with consideration of the oral evidence and the Judgment of the Marine Court, Ext. B which are not every relevant for our purpose. In paragraph 8 of the plaint, the plaintiff has prayed for compensations from the defendant on different heads. The learned Admiralty Judge on the basis of Ext. 25 series (Evidence of the employees of the plaintiff’s vessel adduced in Marine Court) decided the price of Vessel Al-Falah-1. the price of 800 Metric tons of wheat was decided on the basis of Exhibit 26 and also decided the costs of salvage operation though no sufficient documents were filed before the Admiralty Court.
13. It remains to be seen whether on proper consideration of the evidence on record the quantum of damages have been ascertained in the present case and the decree is sustainable in law and fact.
14. The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiff’s vessel) who appeared before the Magistrate, 1st Class, Maritime Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act, that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Taka 80,10,000.00 is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. It is on record that the Vessel met with the accident with the Oil Tanker of the defendant. The defendant was responsible for the accident and the vessel of the plaintiff is alleged to have sustained a total loss and the vessel could not be salvaged. In the facts and circumstances of the case, we think that the suit should be remanded to the Admiralty Court to decide only with regard to the market value of the Vessel, Al Falah- 1 and for doing that the parties should be allowed to adduce further oral and documentary evidence.
15. With regard to the price of 800 Metric Tons of wheat, it is found from the materials on record that the wheat belongs to the Government of Bangladesh and the plaintiff’s vessel was carrying the same under a contract as a bailee and hence the plaintiff is entitled to the price of 800 Metric Tons of wheat which belongs to the Government. The price of wheat is in fact payable by the plaintiff-bailee to the bailer-Government of Bangladesh. In the meanwhile, from the papers filed in this Court by Dr. M Zahir it appears that the Government of Bangladesh as plaintiff filed Money Suit No. 48 of 1994 in the Court of 3rd Commercial and Artha Rin Adalat, Chittagong against the plaintiff-respondent for the recovery of the price of 800 Metric Tons of wheat which was lost due to the accident. In that suit the government of Bangladesh as plaintiff has got a decree against the present plaintiff-respondent for an amount of Taka 66.39.572.70. This amount is recoverable by the Government of Bangladesh against the plaintiff-respondent on account of the price of 800 Metric Tons of wheat. In partial modification of the decree passed by the Admiralty Court, an amount of Taka 66, 39,572.70 is decreed in favour of the plaintiff-respondent against the defendant-appellant.
16. With regard to the salvage operation costs for Al-Falah-1, the plaintiff has claimed Taka 11, 56,579.00 in the plaint. But unfortunately, in the Judgment of the High Court Division there is no mention of any oral or documentary evidence with regard to the cost incurred in salvage operation. Dr. M Zahir in the additional paper book filed in this Court has submitted correspondences with the plaintiff and BIWTA which was engaged for the salvage of A1-Falah-1. From the documents as filed by Dr. M Zahir it appears that the plaintiff had paid by cheque Taka 5, 19,860.60 paisa to BIWTA and as advance had also paid Taka 2, 60,000.00 to the said Authority (Ext. 18) as cost of salvage operation. Thus, the plaintiff had already paid Taka 7,79,860.00 for the salvage operation. Hence, the plaintiff is entitled to the cost of salvage operation as per Item No. 3 of the plaint to the extent of Taka 7, 79,860.00 only and the suit is accordingly, so decreed. The Admiralty Courts decree of Taka 11, 56,590.00 on this item is modified.
17. Accordingly, the plaintiff is entitled to a decree of Taka 74,19,432.70 paisa only on account of price of 900 Metric Tons of wheat and actual costs incurred on salvage operation plaintiff- respondent will, however, satisfy the decree of Money Suit No. 48 of 1994 of the Court of 3rd Commercial Court and Artha Rin Adalat, Chittagong to the extent of Tab 66,39,572.70 upon realisation of the decretal amount from the appellant. The suit is further remanded to the Admiralty Court only to determine the value of the vessel, Al-Falah-1 and pass a decree in favour of the plaintiff upon such determination, taking further evidence from parties.
In the result, the appeal is disposed of in the above terms without any order as to cost.
Ed.
Source : 51 DLR (AD) (1999) 71