Captain Md. Abdul Hayee Miah and others Vs. M.V. Ocean Pearl and others 2016 (2) LNJ 351

Case No: Admiralty Suit No. 38 of 2012

Judge: A. F. M. Abdur Rahman,

Court: High Court Division,,

Advocate: Mr. Md. Abdul Khaleque,,

Citation: 2016 (2) LNJ 351

Case Year: 2016

Appellant: Captain Md. Abdul Hayee Miah and others

Respondent: M.V. Ocean Pearl and others

Subject: Admiralty Law,

Delivery Date: 2015-12-01

Captain Md. Abdul Hayee Miah and others Vs. M.V. Ocean Pearl and others 2016 (2) LNJ 351
 
HIGH COURT DIVISION
(ADMIRALTY JURISDICTION)
A. F. M. Abdur Rahman, J
 
Judgment on
01.12.2015
  Captain Md. Abdul Hayee Miah, the Master of M.V. OCEAN PEARL, now lying at outer anchorage of Chittagong Port, Chittagong and others
. . . Plaintiff/ Petitioner
-Versus-
M.V. OCEAN PEARL now lying at outer storage of Chittagong Port, Chittagong and others
 ....Defendants-Opposite Parties.

Admiralty Act (XLIII of 2000)
Section 3 (2) (h)
The plaintiffs have initiated this Admiralty proceedings against the defendant No. 1 vessel M.V. OCEAN PEARL and against its owners and interested parties for realization of their unpaid due salary and wages. Therefore this claim of the plaintiffs, subject to prove of their employment in the defendant No. 1 vessel as Master and crew members, comes under the purview of the provision of section 3(2)(h) of the Admiralty Court Act 2000. For the purpose of ascertaining as to employment of a person in a marine vessel, two documents are vital, one being (1) the Agreement for the employment with the owner of the vessel, either directly or through their agent and the other being (2) the continuous discharge certificate (CDC), so far the ‘Seaman’ not the ‘master’ is concerned.            . . . (46 and 51)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Sections 89 and 106
It appears from section 89 of the Bangladesh Merchant Shipping Ordinance 1983 that in lieu of CDC book any similar document may be issued by the Shipping Master to the seaman and further the ‘provision of section 106 of the said acts provides for holding by every seaman’s identity card issued by the government with prescribed particulars to be noted in it. These documents shall prove the lawful employment and discharge of seaman in a marine vessel and through which a liability will be imposed upon the owner of the vessel to pay the wages.         . . . (52)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Section 2(45)
The employment of any Bangladeshi Seaman in any ship or vessel, either Bangladeshi or foreign, is regulated by the provision of Bangladesh Merchant Shipping Ordinance 1983. The persons employed as such are known as ‘Sea man’ which has been defined in section 2(45) of the said ordinance which excluded the ‘Master’ of the vessel.    . . . ( 72)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Section 107
The simple meaning of the aforesaid provision is that no person shall be employed or engaged on board a ship, unless the seamen be issued with a ‘Continuous discharge certificate’ (CDC) book or other similar document by the Government Shipping Master for recording details of his service.  . . . (74)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Section 131
The provision of section 131 of the Merchant Shipping Ordinance, 1983 deals with the issue of entries to be made in ‘continuous discharge certificate’ when the seaman is discharged from the job. . . . (75)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Section 131
The provision section 131 mandates that the discharge of the seaman from the service has to be endorsed in the Continuous Discharge Certificate book by the ‘Master of the vessel’ in order to make the discharge from the job a lawful one.                                       . . . (76)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Sections 8 and 131
From the provisions of section 131 of the Ordinance it appears that every Bangladesh seaman is liable to hold a ‘continuous discharge certificate’ (CDC) book issued by the Government shipping master in the prescribed format, wherein their engagement in any employment in any vessel and his discharge from such vessel must be endorsed by the Master of the vessel. The authority known as ‘Shipping Master’ is engaged by the government under the provision of section 8 of the Bangladesh Merchant Shipping Ordinance, 1983.      . . . (77)

Bangladesh Merchant Shipping Ordinance, (XXVI of 1983)
Sections 131
This e-mail correspondences, exhibit 18 (series) along with the exhibit No. 24(1) and 24(7), may be taken into consideration as reflecting more or less true position of the dues remains unpaid to the plaintiff’s. Therefore it may be believed partly that the plaintiff’s, mentioned therein, are lawfully entitled to their salary and wages upto the amount and date as mentioned therein. Practically this is the actual amount of due salary of the plaintiffs till the plaintiffs have filed the suit on 9.5.2012.  The plaintiffs, if at all entitled to their unpaid due wages and salary, they are entitled to get the same up to the date shown therein in exhibit No. 24(1) 24(7) and 18 (series), when some of them have signed off. The plaintiffs are jointly entitled to a decree for an amount of Tk. 2,04,44,510.35 (two crore four lac forty four thousand five hundred ten and thirty five paisa only) equivalent to US$ 1 @ of 82 per US dollar as their due salary and wages. The plaintiffs are not entitled to any other relief in the instant suit.          . . .(93 and 109)

Mr. Mohammad Abdul Khaleque, Adv.
..... For the plaintiff
None appeared on behalf of the defendants
 
JUDGMENT
A. F. M. Abdur Rahman, J
This is an Admiralty Suit praying for decree for realization of due unpaid salary and wages of these eight plaintiffs, who are sea men, allegedly employed in the vessel MV OECAN PEARL, combinedly amounting to Tk. 5,12,20,794.00 and the suit was admitted for adjudication by this court on 10.05.2012 The suit was initially filed on 09.05.2012 with a combined claim of amount of Tk. 1,50,14,949.00, equivalent to US$ 1,80,903.00 at the exchange rate of Tk. 83.00 per dollar, but the said amount was enhanced to Tk. 5,12,20,794.00  @ Tk. 82.00 per dollar through the amendment of plaint, made on 13.2.2013.
Facts of the plaint case
  1. Plaintiffs are eight in number. It has been claimed in the plaint that the plaintiff No. 1was the master of the defendant No. 1 vessel M.V. OCEAN PEARL, flying the flag of Federation of St. Kitti and Neves, a Caribbean Island and all other seven plaintiffs served the said defendant No. 1 vessel M.V. OCEAN PEARL in different capacity during the period when the vessel was at distressed condition at the outer anchorage of Chittagong Port. All the plaintiffs are Bangladeshi national, who were engaged in the service of the defendant No. 1 vessel M.V. OCEAN PEARL under the contract executed by and between the plaintiffs and the owners of the owing company of the defendant No. 1 vessel. The defendant No. 1 vessel M.V. OCEAN PEARL was lying at the outer anchorage at Chittagong Port, Chittagong in distressed condition also at the time of filing the suit.
  2. There are only 4 (four) principal defendants in the suit and 5 (five) proforma defendants. The identity of the 4 (four) principal defendants have been described as the defendant No. 2, Merchant House in IMC, represented by its agent in Bangladesh Sigma Shipping Lines, having its office at Panama and owned by one Mr. Atul Jain. The defendant No. 3,00 Prayati Shipping Pvt. Limited, having its office at Mumbai, India and owned by one Mr. S. Biswash. The defendant No. 4 is Sigma Shipping Lines, having its office at 91 Agrabad Commercial Area, Chittagong, being the local agent of the defendant No. 2. All the plaintiffs signed the employment contract with the owner of the defendant No. 1 vessel through their representative in Bangladesh, the defendant No. 4, Sigma Shipping Lines. The plaintiffs performed their respective duties in the defendant No. 1, vessel from the date of joining. The plaintiff Nos. 1, 5-8 are on board for nineteen months and the plaintiff Nos. 2-4 have signed off after serving nine months and all of them have not been paid salary for the period of service. The plaintiffs and their family members have been living in miserable condition for long, due to monetary constraint. The plaintiffs sent repeated reminders to the owner and the agent of the defendant No. 1 vessel M.V. OCEAN PEARL, but they did not pay any heed to it and did not pay the outstanding salaries as per the contract of the plaintiffs. Hence the Suit.
  3. The total claim of the plaintiffs against the defendants, up to 30.4.2012, were narrated in paragraph No. 6 of the plaint with a grand total of US$ 180903.00 which was later amended, on 13.2.2013, enhancing the same to the total claim up to 31.1.2013, to a grand total of US$ 403088.00 equivalent to BD Tk. 3,30,53,216.00 @ taka 82 per US$.
  4. Subsequently the plaintiffs again amended the plaint on 23.10.2014, whereupon the paragraph No. 6 was deleted and the new facts as to the enhanced claim of the plaintiffs have been incorporated to the extent that the defendant No. 1 vessel M.V. OCEAN PEARL while discharging its 12,200 MTs. of Fertilizer at the port of Chittagong, suddenly run aground on 8.10.2010 and to avoid a total loss of the said cargo, the said vessel was beached on 14.10.2010 near Patenga, Chittagong Port and the Indian origin master and crew members of the said vessel abandoned the vessel, keeping the vessel in a distressed condition. Thereafter, the plaintiffs were employed as master and crew members respectively, of the defendant No. 1 vessel M.V. OCEAN PEARL by its owners manager, the defendant No. 3, through their agent defendant No. 4, under different written contracts of service on terms and conditions as mentioned in their respective contract of employment. In terms of the said agreement, the plaintiffs have duly joined the vessel in their respective service and had been rendering their respective duties on board in the abandoned and distressed condition of the defendant No. 1 vessel M.V. OCEAN PEARL in order to keep it in safe condition and to protect the vessel from pilferage and looting by the pirates and local hoodlums at the outer anchorage of Chittagong Port.
  5. It has been further stated that the plaintiffs, being the crew members of the defendant No. 1 vessel M.V. OCEAN PEARL, had salvaged, during the period 23.2.2011 to July 2011, a total of 1906 M.Ts. cargo from the defendant No. 1 vessel M.V. OCEAN PEARL, for which they are entitled in law and equity to claim reward as per the provision of section 468(a)(b)(c) of Bangladesh Merchant Shipping Ordinance 1983 and as per Article 12(1) and Article 14(2) of Chapter III of International Convention of Salvage. IMO. 1889.1910 and 1989. The plaintiffs are also entitled in law and equity, as per Maritime Customs and Convention as well to claim risk bonus for having been engaged to work in the distressed and abandoned conditions of the defendant No. 1 vessel M.V. OCEAN PEARL. The plaintiffs have accordingly claimed reward and risk bonuses in their portage bill earlier submitted.  The defendant No. 1 vessel M.V. OCEAN PEARL was severely damaged resulting in its split up in almost two parts, due to the devastating cyclonic storm and tidal boar, which occurred on 12.6.2011. Thereafter, the owner of the defendant No. 1 vessel M.V. OCEAN PEARL, with a view to settle the employment of the plaintiffs, requested the master to send the portage bill up to 14th of June, 2011, showing signed off and serving seaman, so as to enable the owner of the defendant No. 1 vessel M.V. OCEAN PEARL to settle the outstanding salary and wages and dues of the plaintiffs till 14th June, 2011 and as such the plaintiffs were accordingly shown in the portage bill up to 14th June, 2011. But thereafter the plaintiffs were neither paid the outstanding wages, as per the said portage bill of June 2011, nor they were arranged for officially signing off till the dates as mentioned in the Schedule of Claim, as evidenced by their respective CDC. As per the terms of contract of their respective services, the plaintiffs were to be paid their respective monthly wages and all other dues after all necessary deduction therefrom as per the monthly portage bill, prepared and maintained by the concerned official of the defendant No. 1 vessel M.V. OCEAN PEARL in the normal course of the affairs. The plaintiffs are entitled in law and equity to claim and recover their monthly outstanding wages and other dues till the date they have signed off from their respective services and the principle defendants are jointly and severely liable in law and equity to pay the same. A total sum of US$ 6,17,118.00 equivalent to Bd. Tk. 5,12,20,794.00 become due to the plaintiffs as their accumulated outstanding wages and other dues from the principle defendants for their services rendered as seamen on board the defendant No. 1 vessel M.V. OCEAN PEARL.
  6. The particulars of each of the plaintiff Nos. 1-8 in regard to their respective name, rank and dates of joining, signing off, monthly salary, other dues, interest and total outstanding dues due to each of the plaintiffs from the principle defendants are given in the Schedule appended to the plaint, wherein it has been stated that by the terms of the employment contracts the plaintiff’s were entitled to salary in US dollar, payment to be made in equivalent Bangladesh currency. The plaintiff No. 1 is entitled to a total amount of Tk. 2,97,48,196.00 equivalent to US$ 358412.00; the plaintiff No. 2 is entitled to a total amount of Tk. 40,48,325.00, equivalent to US$ 48775.00; the plaintiff No. 3 is entitled to a total amount of Tk. 75,95,662.00, equivalent to US$ 91514.00;  the plaintiff No. 4 is entitled to a total amount of Tk. 29,92,482.00 equivalent to US$ 36054.00. The plaintiff No. 5 is entitled to a total amount of Tk. 20,79,482.00, equivalent to US$ 25054.00; the plaintiff No. 6 is entitled to a total amount of Tk. 11,15,852.00, equivalent to US$ 13444.00; the plaintiff No. 7 is entitled to a total amount of Tk. 16,68,715.00, equivalent to US$ 20105.00 and the plaintiff No. 8 is entitled to a total amount of Tk. 16,91,706.00, equivalent to US$ 20382.00. The total outstanding salary and wages and other dues of all the plaintiffs are US$ 613745.00. The total  outstanding dues in respect of crew food, accommodation and miscellaneous expenses from 01.08.2013 to 30.09.2013 came to an amount of US$ 3373.00 and as such the grand total of the amount to be payable to the plaintiffs comes to US$ 617118.00, equivalent to Bd. Tk. 5,12,20,794.00 @ Tk. 83 per dollar. The plaintiffs are entitled to receive the aforesaid amount from the defendants, who are legally liable to pay the same. But although the plaintiffs repeatedly requested the defendants to settle the outstanding dues of the plaintiffs, but till date the defendants have not settled the legitimate claim of the plaintiffs and it is apparent that the defendants are acting in negligence and unwilling to settle the legitimate claim of the plaintiffs for which the plaintiffs were constrained to file the instant suit.
  7. It has been further stated that the plaintiff No. 1, the Bangladeshi Master of the defendant No. 1 vessel M.V. OCEAN PEARL always worried for the safety of life of his crews and watchmen, who are guarding the vessel against pirates and robbers, as the vessel is in distressed condition. If the Master would abandoned the vessel for the safety of their life, the vessel would have been looted by pirates and robbers by cutting the valuable steel plates of the vessel, by which the environmental pollution may take place.
  8. The plaintiff Nos. 2-4 are entitled to get their continuation of salary as they were not paid their balance as per maritime law during verbal signing off, which is not acted upon in the eye of law. The claim made by the plaintiffs in the instant suit is enforceable under the Admiralty Court Act 2000, since the cause of action of the suit arose lastly on 26.4.2012 and 27.4.2012 when the defendants have failed to abide by their commitment to make payment of the salary of the plaintiffs within due time.
  9. The plaintiff Nos. 2-8 have executed a power of attorney giving authority to the plaintiff No. 1 to sign the plaint verification and swearing affidavit for any application in connection with the instant Admiralty Suit.
         Prayer of the plaintiffs.
  1. Although the other paragraphs of the plaint has been amended but the paragraph No. 12 contained the earlier claim of US$ 1,80,903.00 equivalent to Tk. 1,50,14,949.00 inadvertently. Upon this confused claim of amended plaint, the plaintiffs through the testimony of the P.Ws, now prayed for a decree to be passed for a total sum of US$ 6,17,118.00 equivalent to Bd. Tk. 5,12,20,794.00 against the principle defendants jointly and severally and in favour of the plaintiffs jointly and severally, to be distributed among the plaintiffs in the manner of their respective claim amount, as mentioned in the Schedule of plaint.
         Step taken by the defendants.
  1. Although the suit has been filed against the principle defendant Nos. 1-4 and the said defendants appeared through the learned Advocate Mr. Muhammad Ohiullah and others, through the warrant of attorney dated 18th July, 2012, signed by Sheikh Md. Rafiqul Islam proprietor of the defendant No. 4 Sigma Shipping Lines and filed written objection through the learned Advocate, against the application filed by the plaintiff for sale of the defendant No. 1 vessel M.V. OCEAN PEARL on 20.11.2012, but thereafter one learned Advocate Mr. Mohammad Ali Akanda filed wokalatnama on behalf of defendant Nos. 1-2, being issued with No Objection certificate from ORR, DIGNAM & Co. but subsequently, the suit was not contested either by the said learned Advocate for the defendants or by any other defendants and neither any written statement was filed in the suit at any point of time by these defendants,  nor these defendants contested the suit by adducing any witness or by cross examination of plaintiff’s witnesses.
  2. One learned Advocate Mr. Mahdin Chowdhury, being the constituted attorney of the defendant Nos. 1 and 2, engaged the aforementioned learned Advocate Mr. Mohammed Ali Akand to contest the suit, but although the said learned Advocate also filed a written objection against the confirmation of auction sale of the vessel MV OCEAN PEARL, but never submitted any written statement on behalf of the defendant Nos. 1 and 2 nor examined any witness or cross examined the plaintiff witness and therefore, the suit remain uncontested.
         Issues of the Suit.
  1. Although the defendants, who appeared in the suit did not file written statement and as such the suit is uncontested and heard exparte, nevertheless the issues of the suit is required to be settled on the basis of the plaint. Accordingly this court framed the issue on 8.7.2015 relying on suggested issue of the plaintiff in the following manner;
    1. Whether the admiralty suit is maintainable in its present form?
    2. Whether the plaintiff’s being Master and Crews of the defendant No. 1 vessel have not been paid their salaries and wages?
    3. If so, whether the plaintiffs are entitled to the relief as prayed for?
    4. If so, entitled whether the principal defendants are liable to the plaintiffs as stated in the plaint?  
         Witnesses of the plaintiffs.
  1. On the basis of the issues framed by the court, the plaintiffs have examined as many as 6 (six) witnesses out of which the plaintiff No. 2 examined himself as P.W. 1 and also examined the plaintiff No. 4 as P.W. 2, plaintiff No. 5 as P.W. 3, plaintiff No. 6 as P.W. 4, plaintiff No. 7 as P.W. 5 and the plaintiff No. 8 as P.W.  6.
         Evidence of the plaintiff : PW 1.
  1. The plaintiff No. 1 Captain Md. Abdul Hayee Miah did not depose in this suit on the reason that he became paralyzed and medically unfit and accordingly he executed a power of attorney Exhibit 1, so also the other plaintiff’s executed power of attorney in favour of the plaintiff No. 2 SK. Rafiqul Alam to depose in the suit on his behalf and on behalf of the other plaintiff’s. The plaintiff No. 2 SK Rafiqul Alam examined himself as P.W. 1, which was taken on 01.9.2015, whereupon he has stated that he has received the Exhibit 2, the power of attorney, from the plaintiff No. 1 and also on behalf of other plaintiffs. The plaintiff No. 1 Captain Md. Abdul Hayee Miah was the Master of the vessel who was conducting the suit earlier on the authority of a power of attorney executed by all the plaintiffs. He has filed the original power of attorney dated 9.5.2015, which was marked as Exhibit-1. He has also submitted the power of attorney executed in favour of the master Captain Md. Abdul Hayee Miah, which was marked as Exhibit-2. The captain Md. Abdul Hayee Miah is now paralyzed. He and all the other plaintiffs served the defendant No. 1 vessel M.V. OCEAN PEARL. The owner of the defendant No. 1 vessel appointed the plaintiff in the defendant No. 1 vessel M.V. OCEAN PEARL and this witness submitted the documents of contract dated 2.11.2010 in respect of the plaintiff No. 1 to prove the appointment of the plaintiff No. 1 as Master of the defendant No. 1 vessel M.V. OCEAN PEARL. The plaintiff No. 1 was re-appointed through the re-contract agreement dated 28.2.2011 and the same has been filed to be marked as Exhibit-4. He has also filed the copy of the Continuous Discharge Certificate (CDC) dated 18.4.2012 marked as Exhibit 5. He has filed the copy of employment contract dated 28.10.2010, marked as Exhibit-6 to show appointment of the plaintiff No. 2 in the defendant No. 1 vessel M.V. OCEAN PEARL. He has also filed the CDC book dated 18.10.2010 to be marked as Exhibit-7 in respect of his appointment. He has submitted the employment contract dated 21.10.2010 in support of the service of the plaintiff No. 3, which has been marked as Exhibit-8. He has also submitted Sea Farers Identity documents dated 7.5.2007, which has been marked as Exhibit-9. He has submitted employment contract dated 1.11.2010 in support of the plaintiff No. 4, which has been marked as Exhibit-10. He has also filed the copy of the Sea Farers Identity documents, dated 8.10.2003, marked as Exhibit-11 in support of the employment of the plaintiff No. 4. He has also filed employment contract, dated 26.10.2010, in support of the service of the plaintiff No. 5, which has been marked as Exhibit-12. He has also submitted the copy of Sea Farers Identity documents dated 20.2.2010 which has been marked as Exhibit-13 to show his employment at the defendant No. 1 vessel. He has also submitted the employment contract, dated 24.10.2010, in support of the service of the plaintiff No. 6, which has been marked as Exhibit No. 14. He has submitted employment contract dated 16.12.2010 in support of the service of the plaintiff No. 7, which has been marked as Exhibit-15. He has also submitted Sea Farers Identity documents, dated 13.3.2000, marked as Exhibit-16 to prove the employment of the plaintiff No. 7. He has also submitted employment contract dated 29.10.2010 in support of the service of the plaintiff No. 8, which has been marked as Exhibit-17. He has also submitted copies of e-mails in support of service transaction of the plaintiffs, which has been marked as Exhibit-18(series). He has also submitted copy of the crew list of the defendant No. 1 vessel M.V. OCEAN PEARL dated 30.4.2012, which has been marked as Exhibit-19. He has also submitted three other e-mails dated 20.1.2012, 01.4.2012 and 15.9.2011, which have been marked as Exhibit-20(series). He has also submitted copy of Master’s appointment in service on board dated 30.9.2012, which has been marked as Exhibit-21. He has also submitted copy of letter dated 16.10.2011 by which the BCIC claimed the cargo, which has been marked as Exhibit-22. He has also submitted copy of the portage bill dated 29.2.2012, which has been marked as Exhibit-23 in order to prove the owners acknowledgement as to the due salary of the crew member of the vessel. He has also submitted other portage bill for the month of November, 2010 up to February, 2012, marked as Exhibit-24. He has also submitted copy of cargo statement, dated October, 2010, which has been marked as Exhibit-25. He has also submitted copy of the final portage bill of the Master and crew for the month of September, 2013, which has been marked as Exhibit-26.
  2. The P.W. 1 stated the period of service of the plaintiffs in the vessel M.V. OCEAN PEARL in the manner that the plaintiff No. 1 joined the vessel on 2.11.2010 and signed off on 30.9.2013, the plaintiff No. 2 joined the vessel on 28.10.2010 and signed off 21.7.2011, the plaintiff No. 3 joined the vessel on 21.10.2010 and signed off 14.6.2011, the plaintiff No. 4 joined the vessel on 01.11.2010 and signed off on 14.6.2011, the plaintiff No. 5 joined the vessel on 26.10.2010 and signed off 30.09.2013, the plaintiff No. 6 joined the vessel on 26.10.2010 and signed off 30.9.2013, the plaintiff No. 7 joined the vessel on 16.12.2010 and signed off 30.9.2013 and the plaintiff No. 8 joined the vessel on 29.10.2010 and signed off 30.9.2013.
  3. It has been stated by the P.W. 1 that these plaintiffs are entitled, under the contract of employment, monthly salary, payable within the month for the plaintiff No. 1 @ US$ 7500, for the plaintiff No. 2 @ US$ 3500, for the plaintiff No. 3 @ US$ 6000, for the plaintiff No. 4 @ US$ 2500, for the plaintiff No. 5 @ US$ 500, for the plaintiff No. 6 @ US$ 250, for the plaintiff No. 7 @ US$ 400 and for the plaintiff No. 8 @ US$ 400.
  4. It has been further stated by the P.W. 1 that the defendant No. 1 vessel M.V. OCEAN PEARL was in distressed condition and the plaintiffs served the vessel in such distressed in human condition having no source of utilities and logistics. The plaintiff’s saved the distressed vessel from the pirates and robbers by their utmost sincere care and labour at the risk of their lives and also salvaged 906 M.Ts. cargo and 200 M.Ts. oil. The plaintiffs protected the environmental pollution and the vessel itself. The defendant No. 4 made commitment to pay off the salary and pay off other service benefit at due time but failed. The plaintiffs repeatedly requested for payment of the outstanding wages and salaries. But as the defendants failed, now the plaintiffs pray for decree for payment of outstanding wages, salaries and service benefit. The plaintiffs also prays for a decree for salvage reward, equivalent to four months salary and risk bonus, equivalent to two months salary.
  5. It has been further stated by the P.W 1 that the defendants have paid the expenses of food and lodging up to July 2013 at the rate of Tk. 1,40,000.00 per month on the order of the court. The plaintiff also prays for decree in the instant suit for remaining expenses of food and lodging up to sign off. The vessel M.V. OCEAN PEARL was sold in auction. The plaintiff although procured the order of sell of the defendant No. 1 vessel from this court, yet the plaintiff were not given the cost of the sell of the vessel which they arranged for. The defendants entered appearance in the instant suit, but finally did not contest the suit. The defendants did not deny the service of the plaintiffs in the defendant No. 1 vessel and the liability of them to pay the salary and other service benefit to the plaintiff’s which they have admitted by paying the food, lodging cost and portion of salary. The documents which have been filed by the plaintiffs were all attested documents made by the Master of the defendant No. 1 vessel M.V. OCEAN PEARL. The P.W. 1 prays for decree as prayed for.
None appeared to cross-examine the P.W. 1.
Evidence of P.W. 2:
  1. The plaintiff No. 4, Md.  Kamal Uddin, examined himself as P.W. 2 in the instant suit, who stated in his examination-in-chief that he has served the defendant No. 1 vessel M.V. OCEAN PEARL as electrical engineer. He and other plaintiffs served the vessel along with him. The defendants have not paid full salary and service benefit and expenses of food and lodging. The plaintiff No. 1 joined the vessel on 2.11.2010 and signed off on 30.9.2013, the plaintiff No. 2 joined the vessel on 28.10.2010 and signed off on 21.7.2011, the plaintiff No. 3 joined the vessel on 21.10.2010 and signed off on 14.6.2011, the plaintiff No. 4’ he himself, joined the vessel on 01.11.2010 and signed off on 14.6.2011, the plaintiff No. 5 joined the vessel on 26.10.2010 and signed off on 30.9.2013, the plaintiff No. 6 joined the vessel on 24.10.2010 and signed off on 30.9.2013, the plaintiff No. 7 joined the vessel on 16.12.2010 and signed off on 30.9.2013 and the plaintiff No. 8 joined the vessel on 29.10.2010 and signed off on 30.9.2013.
  2. The P.W. 2 further stated that the basic monthly salary of the plaintiff No. 1 was US$ 7500, the basic monthly salary of the plaintiff No. 2 was US$ 3500, the basic monthly salary of the plaintiff No. 3 was US$ 6000, the basic monthly salary of the plaintiff No. 4 was US$ 2500, basic monthly salary of the plaintiff No. 5 was US$ 500, the basic monthly salary of the plaintiff No. 6 was US$ 250, the basic monthly salary of the plaintiff No. 7 was US$ 400 and the basic monthly salary of the plaintiff No. 8 was US$ 400.
  3. The P.W. 2 further stated that during the service period of him in the defendant No. 1 vessel M.V. OCEAN PEARL, the same was in distressed condition. The plaintiffs saved the distressed vessel from the pirates and robbers and also salvaged the cargo and saved the environmental pollution and the vessel itself. All the plaintiffs boarded the vessel in Chittagong and also signed off in Chittagong. The plaintiff boarded the vessel after the Indian origin crew members left and abandoned the vessel leaving the said vessel in distressed condition. The plaintiff No. 2 prays for decree as prayed for.
None appeared to cross-examine the P.W. 2.
Evidence of P.W. 3:
  1. The plaintiff No. 5 Shah Makhlisur Rahman examined himself as P.W. 3 who has stated that he served the defendant No. 1 vessel M.V. OCEAN PEARL as A.B. of the vessel. All the plaintiffs in this suit served the defendant No. 1 vessel M.V. OCEAN PEARL along with him. The defendants have not paid full salary and service benefit and expenses of food and lodging to the plaintiffs. The plaintiff No. 1 joined the vessel on 2.11.2010 and signed off on 30.9.2013, the plaintiff No. 2 joined the vessel on 28.10.2010 and signed off on 21.7.2011, the plaintiff No. 3 joined the vessel on 21.10.2010 and signed off on 14.6.2011, the plaintiff No. 4 joined the vessel on 01.11.2010 and signed off on 14.6.2011, the plaintiff No. 5 joined the vessel on 26.10.2010 and signed off on 30.9.2013, the plaintiff No. 6 joined the vessel on 24.10.2010 and signed off on 30.9.2013, the plaintiff No. 7 joined the vessel on 16.12.2010 and signed off on 30.9.2013 and the plaintiff No. 8 joined the vessel on 29.10.2010 and signed off on 30.9.2013.
  2. The P.W. 3 further stated that the basic monthly salary of the plaintiff No. 1 was US$ 7500, the basic monthly salary of the plaintiff No. 2 was US$ 3500, the basic monthly salary of the plaintiff No. 3 was US$ 6000, the basic monthly salary of the plaintiff No. 4 was US$ 2500, monthly salary of the plaintiff No. 5 was US$ 500, the basic monthly salary of the plaintiff No. 6 was US$ 250, the basic monthly salary of the plaintiff No. 7 was US$ 400 and the basic monthly salary of the plaintiff No. 8 was US$ 400.
  3. The P.W. 3 further stated that during the service period of him in the defendant No. 1 vessel M.V. OCEAN PEARL, the same was in distressed condition. The plaintiffs saved the distressed vessel from the pirates and robbers and also salvaged the cargo and saved the environmental pollution and the vessel itself. All the plaintiffs boarded the vessel in Chittagong and also signed off in Chittagong. The plaintiff boarded the vessel after the Indian origin crew members left and abandoned the vessel, leaving the said vessel in distressed condition. The plaintiff No. 5 prays for decree as prayed for an amount of Tk. 5,12,20,794.00 equivalent to US$ 61718 @ taka 83 per US dollar along with 18% legal expenses and 20% interest till realization of the decreetal money and also the incidental cost of the auction sale of the vessel M.V. OCEAN PEARL. As the defendant failed to comply their commitment made on 26.4.2012 and 27.4.2012 the plaintiffs filed the instant Admiralty Suit along with other plaintiffs.
None appeared to cross-examine the P.w. 3.
Evidence of P.W. 4:
  1. The plaintiff No. 6 Mohsin Molah examined himself as P.W. 4, who stated in his examination in chief that he along with three plaintiffs have come to depose before this court today. The plaintiff No. 1 Captain Md. Abdul Hayee Miah Miah, is paralyzed and on sick bed and the plaintiff No. 3 is in abroad and he himself served the defendant No. 1 vessel M.V. OCEAN PEARL in the capacity of GP. All the plaintiffs in the suit served the said vessel M.V. OCEAN PEARL along with him. But the defendant did not pay the full salary and service benefit and expenses of food and lodging. The plaintiff No. 1 joined the vessel on 2.11.2010 and signed off on 30.9.2013, the plaintiff No. 2 joined the vessel on 28.10.2010 and signed off on 21.7.2011, the plaintiff No. 3 joined the vessel on 21.10.2010 and signed off on 14.6.2011, the plaintiff No. 4 joined the vessel on 01.11.2010 and signed off on 14.6.2011, the plaintiff No. 5 joined the vessel on 26.10.2010 and signed off on 30.9.2013, the plaintiff No. 6 joined the vessel on 24.10.2010 and signed off on 30.9.2013, the plaintiff No. 7 joined the vessel on 16.12.2010 and signed off on 30.9.2013 and the plaintiff No. 8 joined the vessel on 29.10.2010 and signed off on 30.9.2013.
  2. It has been further stated by the P.W. 4 that the basic monthly salary of the plaintiff No. 1 was US$ 7500, the basic monthly salary of the plaintiff No. 2 was US$ 3500, the basic monthly salary of the plaintiff No. 3 was US$ 6000, the basic monthly salary of the plaintiff No. 4 was US$ 2500, monthly salary of the plaintiff No. 5 was US$ 500, the basic monthly salary of the plaintiff No. 6 was US$ 250, the basic monthly salary of the plaintiff No. 7 was US$ 400 and the basic monthly salary of the plaintiff No. 8 was US$ 400.
  3. The P.W. 4 further stated that during the service period of him in the defendant No. 1 vessel M.V. OCEAN PEARL, the same was in distressed condition. The plaintiffs saved the distressed vessel from the pirates and robbers and also salvaged the cargo and oil and saved the environmental pollution and the vessel itself. All the plaintiffs boarded the vessel in Chittagong and also signed off in Chittagong. The plaintiff boarded the vessel after the Indian origin crew members left and abandoned the vessel, leaving the said vessel in distressed condition. He prays for a decree, as prayed for an amount of Tk. 5,12,20,794.00 equivalent to US$ 61718 @ taka 83 per US dollar along with 18% legal expenses and 20% interest till realization of the decreetal money and also for the incidental cost of the auction sale of the vessel M.V. OCEAN PEARL. Since the defendant failed to comply their commitment made on 26.4.2012 and 27.4.2012 to pay the salary and other benefits for which the plaintiffs filed the instant suit along with other plaintiffs.
None appeared to cross-examine the P.w 4.
Evidence of P.W. 5:
  1. The plaintiff No. 7 Md. Ali Osman examined himself as P.W. 5 who has stated that he along with three plaintiffs have come to depose before this court today. The plaintiff No. 1 Captain Md. Abdul Hayee Miah Miah, is paralyzed and on sick bed and the plaintiff No. 3 is in abroad. He himself served the vessel M.V. OCEAN PEARL in the capacity of GP. All the plaintiffs in the suit served the said vessel M.V. OCEAN PEARL along with him . But the defendant did not pay the full salary and service benefit and expenses of food and lodging. The P.W. 5 further stated that the plaintiff No. 1 joined the vessel on 2.11.2010 and signed off on 30.9.2013, the plaintiff No. 2 joined the vessel on 28.10.2010 and signed off on 21.7.2011, the plaintiff No. 3 joined the vessel on 21.10.2010 and signed off on 14.6.2011, the plaintiff No. 4 joined the vessel on 01.11.2011 and signed off on 14.6.2011, the plaintiff No. 5 joined the vessel on 26.10.2010 and signed off on 30.9.2013, the plaintiff No. 6 joined the vessel on 24.10.2010 and signed off on 30.9.2013, the plaintiff No. 7 joined the vessel on 16.12.2010 and signed off on 30.9.2013 and the plaintiff No. 8 joined the vessel on 29.10.2010 and signed off on 30.9.2013.
  2. It has been further stated by the P.w 5 that the basic monthly salary of the plaintiff No. 1 was US$ 7500, the basic monthly salary of the plaintiff No. 2 was US$ 3500, the basic monthly salary of the plaintiff No. 3 was US$ 6000, the basic monthly salary of the plaintiff No. 4 was US$ 2500, monthly salary of the plaintiff No. 5 was US$ 500, the basic monthly salary of the plaintiff No. 6 was US$ 250, the basic monthly salary of the plaintiff No. 7 was US$ 400 and the basic monthly salary of the plaintiff No. 8 was US$ 400.
  3. The P.W. 5 further stated that during the service period of him in the defendant No. 1 vessel M.V. OCEAN PEARL, the same was in distressed condition. The plaintiffs saved the distress vessel from the pirates and robbers and also salvaged the cargo and oil and saved the environmental pollution and the vessel itself. All the plaintiffs boarded the vessel in Chittagong and also signed off in Chittagong. The plaintiff boarded the vessel after the Indian origin crew members left and abandoned the vessel, keeping the said vessel in distress condition. The P.W. 5 prays for a decree as prayed for an amount of Tk. 5,12,20,794.00 equivalent to US$ 61718 @ taka 83 per US dollar along with 18% legal expenses and 20% interest till realization of the decreetal money and also for the incidental cost of the auction sale of the vessel M.V. OCEAN PEARL. Since the defendant failed to comply their commitment made on 26.4.2012 and 27.4.2012 to pay the salary and other benefits for which the plaintiffs filed the instant suit.
None appeared to cross-examine the P.W. 5.
Evidence of P.W. 6:
  1. The plaintiff No. 8 Shamsuddin examined himself as P.W. 6, who has stated that he along with three plaintiffs have come to depose before this court today. The plaintiff No. 1 Captain Md. Abdul Hayee Miah Miah, is paralyzed and on sick bed. The plaintiff No. 3 is in abroad. He himself served the vessel M.V. OCEAN PEARL in the capacity of M. Man and all other plaintiffs in the suit served the said vessel M.V. OCEAN PEARL along with him. But the defendant did not pay the full salary and service benefit and expenses of food and lodging.
  2. The P.W. 6 stated that the plaintiff No. 1 joined the vessel the vessel on 2.11.2010 and signed off on 30.9.2013, the plaintiff No. 2 joined the vessel on 28.10.2010 and signed off on 21.7.2011, the plaintiff No. 3 joined the vessel on 21.10.2010 and signed off on 14.6.2011, the plaintiff No. 4 joined the vessel on 01.11.2010 and signed off on 14.6.2011, the plaintiff No. 5 joined the vessel on 26.10.2010 and signed off on 30.9.2013, the plaintiff No. 6 joined the vessel on 24.10.2010 and signed off on 30.9.2013, the plaintiff No. 7 has joined the vessel on 16.12.2010 and signed off on 30.9.2013 and the plaintiff No. 8 joined the vessel on 29.10.2010 and signed off on 30.9.2013.
  3. The P.W. 6 further stated that the basic monthly salary of the plaintiff No. 1 was US$ 7500, the basic monthly salary of the plaintiff No. 2 was US$ 3500, the basic monthly salary of the plaintiff No. 3 was US$ 6000, the basic monthly salary of the plaintiff No. 4 was US$ 2500, monthly salary of the plaintiff No. 5 was US$ 500, the basic monthly salary of the plaintiff No. 6 was US$ 250, the basic monthly salary of the plaintiff No. 7 was US$ 400 and the basic monthly salary of the plaintiff No. 8 was US$ 400.
  4. It has been further stated by the P.W. 6 that during the service period of the defendant No. 1 vessel M.V. OCEAN PEARL, the same was in distressed condition. The plaintiffs save the distressed vessel from the pirates and robbers and also salvaged the cargo and oil and save the environmental pollution and the vessel itself. All the plaintiffs boarded the vessel in Chittagong and also signed off in Chittagong. The plaintiff boarded the vessel after the Indian origin crew members left and abandoned the vessel keeping the said vessel in distressed condition. The P.W. 6 prays for a decree as prayed for an amount of Tk. 5,12,20,794.00 equivalent to US$ 61718 @ taka 83 per US dollar along with 18% legal expenses and 20% interest till realization of the decreetal money and also for the incidental cost of the auction sale of the vessel M.V. OCEAN PEARL. Since the defendant failed to comply their commitment made on 26.4.2012 and 27.4.2012 to pay the salary and other benefits for which the plaintiffs filed the instant suit.
None appeared to cross-examine the P.W. 8.
  1. This is all about the evidence and the marking of the exhibits made by the plaintiffs.
Arguments of the plaintiffs:
  1. The learned Advocate Mr. Mohammad Abdul Kahleque, appearing on behalf of the plaintiffs at the very outset has taken this court through the exhibited documents and also the deposition of the P.Ws. and argued that this being a suit heard exparte, the plaintiff did not leave any stone un-turned to prove its case and accordingly it has not only examined six of the plaintiffs in the suit as P.Ws, who have deposed in favour of the averment made in the  plaint, but also established their claim by way of submitting the exhibited documents, which revealed as to the employment of the plaintiff’s in the vessel M.V. OCEAN PEARL during the tenure from the year 2010 up to the whole year 2013, as an when the plaintiffs were employed in the vessel and signed off from the employment. But as the defendants, being the owner of the vessel, have failed to pay the salary and other benefits to the plaintiffs, the plaintiffs were constrained to institute the instant suit, in order to realize the legitimate dues of the plaintiffs.
  2. The learned Advocate Mr. Mohammad Abdul Khaleque next argued that during the pendency of the suit the defendant No. 4 entered appearance and did not deny the legitimate claim of the plaintiffs and upon an order passed by this court, paid the partial lodging and fooding expenses of the plaintiffs, at the rate of Tk. 1,40,000.00 per month, up to July, 2013. But thereafter the defendants stopped paying even the fooding and lodging expenses which thrown the plaintiffs into financial distress condition till they have signed off from the employment of the defendants.
  3. The learned Advocate Mr. Mohammad Abdul Khaleque next argued that actually the plaintiffs were employed by the defendants by way of written employment contract on different date and at that time, the defendant No. 1 vessel M.V. OCEAN PEARL was abandoned by the Indian origin crew members as the vessel was aground near the Chittagong Port with the cargo of the BCIC and the same was at distressed condition due to not only it’s aground condition, but also against the threatening of being looted by the pirates and other local hoodlums and looters who were roaming around the Chittagong Port hunting prey. The plaintiff upon getting their employment by the defendants, boarded the vessel and served in it in a very distressed condition, in order to save the vessel not only from its distressed condition but also from looting by the pirates. Moreover, the plaintiffs have salvaged the cargo for which the cargo claimant BCIC got the cargo due to the salvage operation operated by the plaintiff at their risks of life.
  4. The learned Advocate Mr. Mohammad Abdul Khaleque drawn the attention of this court to the fact that the plaintiffs employment in the vessel M.V. OCEAN PEARL have been started by way of employment contract, executed by the defendant No. 4 as the local agent of the defendant Nos. 1,2 and 3 and there being urgency to man the vessel by new crews, as the earlier Indian origin crew members left the vessel leaving it in distressed condition, the plaintiffs were hurriedly pushed to board the vessel by the employer, without observing the required legal formalities i.e. to endorse their employment in their service identity book, excepting few of the plaintiffs. The said failure on the part of the plaintiffs not being their willful act and being a technical question, is not required to be taken into notice by this court seriously, since the defendants have admitted the employment of the plaintiffs and the plaintiffs have served the vessel during the full tenure with their all ability against every risk and opposition not only from the circumstances, but also from the weather and environment, which will reveal from the e-mails that have been exchanged in between the Master and the owner of the vessel, which have been exhibited in this suit, being exhibit No. 18 (series) and exhibit No. 20 and also from the letter exhibit No.-22 and all other documents that have been exhibited in this suit.
  5. The learned Advocate Mr. Mohammad Abdul Kahleque next argued that the plaintiffs claim have been admitted by the defendants, since the defendant No. 4 entered appearance in this suit and filed the written objection against the prayer for auction sell of the vessel, whereupon the defendants pay the lodging and fooding charge to the plaintiffs, pursuant to the order passed by this court and therefore the service tenure of the plaintiffs not being denied by the defendants, the plaintiffs are entitled to the decree as prayed for.
  6. The learned Advocate Mr. Mohammad Abdul Khaleque finally argued that on the instance of the plaintiffs the vessel M.V. OCEAN PEARL was sold on auction and the same was purchased by local party who took the possession of the vessel long back. Because of the service rendered by the plaintiffs, during their service tenure, by protecting the same from all environmental condition, the plaintiffs are required to be paid by way of decree of this court else, the plaintiffs will faced with an in justice that they are not being paid of their legitimate salary, wages and other dues.
Deliberation of the Court.
  1. This court has heard the evidence adduced by the witnesses and also heard the learned Advocate Mr. Mohammad Abdul Khaleque appearing on behalf of the plaintiffs. This court perused the exhibits meticulously and considered the submissions as advanced by the learned Advocate Mr. Mohammad Abdul Khaleque.
  2. From the trends of the evidence, it appears that issues of the suit are required to be recast and accordingly the issues of this suit are recast as follows;
    1. Is the suit is maintainable in its present form and manner in this Admiralty Court?
    2. Are the plaintiffs were lawfully employed in the defendant No. 1 vessel and discharged their duties on board the defendant No. 1 vessel for certain tenure?
    3. Is there any dues in respect of salary and wages of the plaintiff against the defendants remain unpaid?
    4. Are the plaintiff are entitled to reliefs or relieves as prayed for?
    5. Is there any other or further relief or relieves the plaintiff are entitled to?
Now this court will dispose off the issues in seriatim.
Issue no. 1
  1. The plaintiffs have initiated this Admiralty proceedings against the defendant No. 1 vessel M.V. OCEAN PEARL and against its owners and interested parties for realization of their unpaid due salary and wages. Therefore this claim of the plaintiffs, subject to prove of their employment in the defendant No. 1 vessel as Master and crew members, comes under the purview of the provision of section 3(2)(h) of the Admiralty court Act 2000. Accordingly this court finds that the instant suit is maintainable in its present form and manner. Therefore the issue No. 1 is resolved in favour of the plaintiff’s.
Issue No. 2, 3 and 4.
  1. All these issues are interlinked and as such those are taken together for disposal for the sake of brevity and convenience. 
  2. This suit although heard exparte, since the defendant No. 4, upon entering into the suit filed written objection against the sell of the vessel, did not further appear and contest the suit, nevertheless the plaintiffs have to prove their own case in order to obtain a decree in this suit in respect of their (1) date of appointment (2) discharging duty on board the vessel, (3) non-payment of salary & wages, (4) actual date of their signing off and (5) amount of unpaid salary & wages and their entitlement to reward for salvage etc.
  3. Prior to entering into the factual aspect as to the employment of the plaintiff in the defendant No. 1 vessel, an appraisal is required to be made as to the law regarding employment of persons in the marine vessel which is governed by the provision of Bangladesh Merchant Shipping Ordinance 1983, since admittedly the plaintiffs were employed to a vessel which was stationed within the territorial water of Bangladesh, albeit the same was a vessel not of Bangladesh Registration but of alien country i.e. the Federation of St. Kittisd and Neves of the Caribbean.
  4. The plaintiff No. 1 Captain Md. Abdul Hyee Mia is a ‘master by profession’ and employed as such in the defendant No. 1 vessel. Being a master, the plaintiff No. 1 has special status in the marine employment, since he does not come within the purview of the definition of ‘seaman’. The provision of section 2(45) of the Provision of Merchant Shipping Ordinance 1983 made all the person employed in a vessel to discharge marine job as ‘Seaman’ excepting the ‘master’, ‘pilot’, apprentice employed in the vessel. Section 89 of the Bangladesh Merchant Shipping Ordinance 1983 requires that any person employed or engaged in any job on board a ship must conclude an employment agreement and that all ‘Seaman’ upon such employment will be issued with a document known as “Continuous Discharge Certificate” (CDC) by the Shipping Master, appointed under section 8 of the said act by the government. The provision of sub section (2) of section 8 of the said Act further requires that the details of the service of a seaman be recorded in the CDC book from time to time specially the discharge of the seaman, as requires under the provision of section 131. Such recording of discharge has to be made by the master of the vessel but discharge must be effected in ‘presence’ of the ‘Shipping Master’ of the port.
  5. Therefore it appears that for the purpose of ascertaining as to employment of a person in a marine vessel, two documents are vital, one being (1) the Agreement for the employment with the owner of the vessel, either directly or through their agent and the other being (2) the continuous discharge certificate (CDC), so far the ‘Seaman’ not the ‘master’ is concerned.
  6. It further appears from section 89 of the Bangladesh Merchant Shipping Ordinance 1983 that in lieu of CDC book any similar document may be issued by the Shipping Master to the seaman and further the ‘provision of section 106 of the said acts provides for holding by every seaman’s identity card issued by the government with prescribed particulars to be noted in it. These documents shall prove the lawful employment and discharge of seaman in a marine vessel and through which a liability will be imposed upon the owner of the vessel to pay the wages.
  7. In the light of the aforesaid legal position, we will now examine the claim of the plaintiff in the instant suit as to their employment and entitlements of wages and other monetary benefits. 
  8. The claim of the plaintiffs are for the realization of salary, wages  and other monetary claim due to them, as they have been employed in the vessel M.V. OCEAN PEARL. The circumstances under which the plaintiff were employed in the defendant No. 1 vessel M.V. OCEAN PEARL have been stated by the P.Ws that while at the Chittagong port, the defendant No. 1 vessel became aground and failing to release the vessel from the aground position, the then master and crew members of the defendant vessel M.V. OCEAN PEARL, who were of Indian origin, left and abandoned the vessel in distressed condition. Thereafter, the defendant No. 4, Sigma Shipping Lines, being the local agent of the owner of the vessel M.V. OCEAN PEARL and authorized to appoint Master and crew members appointed the plaintiffs on different dates in the employments of the defendant No. 1 vessel M.V. OCEAN PEARL in different capacity, in its distressed condition. The plaintiffs executed employment agreements with the owner of the vessel through the agent and boarded the vessel from their respective date of employment agreement and served the vessel.
  9. This assertions have not only been well proved by the corroborative evidence/documents filed by the P.Ws as mark exhibit 3, 4, 6, 8, 10, 12, 14, 15 and 17 which were the employment contract but also admitted in the written objection filed by the defendant No. 4 in the instant suit. Although the relevant portion of the written objection was not made exhibit, yet that being the courts document, there is no legal impediment to consider the same for relying upon any admission of the defendant No. 4.
  10. It has been asserted in the plaint and also the PW’s claimed, that the plaintiffs have received the fooding and lodging expenses during the pendency of the instant suit for the period from 1.7.2012 upto 31.07.2012 from the defendant No. 4 on behalf of the owner of the vessel, who paid the said fooding and lodging charge to the plaintiffs at the rate of Tk. 1,40,000.00 per month, as ordered by this court.
  11. Upon perusing the record it appears that the said factual aspect is correct, as appears from the order of this court, dated 5.8.2012 and it further appears from the order dated 5.8.2012 that this court directed the defendant No. 4 to pay Tk. 1,40,000.00 as food and lodging charge for the month of August 2012. Thereafter this court again directed, through the order dated 13.2.2013, defendant No. 4 to pay Tk. 1,40,000.00 per month to the plaintiff till their actual sign off from the employment. These orders were complied off duly by the defendant No. 4 as admitted by the P.W., which indicate that unless the plaintiff’s were in the employment under the owner of the defendant No. 1 vessel, the agent of the owner of the vessel, the defendant No. 4 Sigma Shipping Line would not have pay the fooding and lodging charge. Therefore the service of the plaintiff’s in the defendant No. 1 vessel has been well proved and established. 
  12. The PWs have stated that they have been employed in the defendant No. 1 vessel but at no point of time the plaintiffs received their salary and upon several request the defendants failed to pay the salary and wages to the plaintiffs, for which the plaintiffs are constrained to institute the instant Admiralty Suit in order to realize their legitimate claim of wages and salary along with other monetary claim.
  13. This assertion has compelled the plaintiffs to prove their tenure of employment in the defendant No. 1 vessel, especially the date of joining and the date of signing off from their employment, by way of cogent evidence, since the statement made in the written objection as aforesaid, filed by the defendant No. 4, not being evidence, cannot be taken into consideration for the purpose of proving such facts.
  14. It appears that the plaintiffs have submitted photocopies of their all documents relating to their appointment and discharge at the time of filling the suit on 9.5.2012 and later submitted the same documents at the time of deposition adduced by the PW 1 SK. Rafiqul Islam and marked the same as exhibit. But there appears serious discrepancies in this two sets of documents as to the endorsement and attestation of the appointment and discharge from the employment, which cannot be overlooked by this court. Moreover the PW. 1, exhibited the photocopies of the employment contracts of the plaintiffs, which have been marked as exhibit Nos. 3, 4, 6, 8, 10, 12, 14, 15 and 17. These exhibits being the secondary evidence, the filling PW was liable to explain as to his inability to exhibit the original copy of the documents. But the PW 1 who exhibited these documents did not state anything about the status of the original copies of the employment contracts, although those original copies of the employment contracts must be with the plaintiffs at all point of time.  However this lacuna of non-explaining the reason making the photocopies as exhibit may be leniently viewed in view of the fact that the appointment of the plaintiff have been admitted by the defendant No. 4.
  15. But the mischievous Act done with the exhibited photocopies cannot be ignored these photocopies were attested through seal and signature of the Master of the defendant No. 1 vessel M.V. OCEAN PEARL, the plaintiff No. 1, Captain Md. Abdul Hayee Miah, which has been claimed as true attestation of the said documents in order to file the same in the court to be marked as exhibit in order to prove their employment in the vessel through the said photocopies. But such attestation for some of the plaintiffs, were made not on the original but on the photocopies even much later than the filing of the suit which has been revealed from the meticulous examination of the sets of photocopies filed at the time of filing the suits and the same photocopies made exhibit.
  16. Be that as it may, upon meticulous examinations of these photocopy exhibits, it appears that the plaintiff No. 1 Captain Md. Abdul Hayee Miah was genuinely initially employed on 2.11.2010 in the defendant No. 1 vessel M.V. OCEAN PEARL as Master of the vessel by the defendant No. 4 Sigma Shipping Lines, on behalf of its foreign principle M/S. Prayati Shipping (Pvt.) Limited, the defendant No. 3. Later, by another independent employment contract dated 28th February, 2011 the plaintiff No. 1 Captain Md. Abdul Hayee Miah was re-employed in the service of the defendant No. 1 vessel M.V. OCEAN PEARL as Master of the vessel. In support of the claim such employment of the plaintiff No. 1 as Master of the vessel, the photocopies of the Continuous Discharge Certificate (CDC), being No. C/0/0239 has been filed at the time of filing of the suit on 9.5.2015, but the same did not contain the endorsement of the employment in defendant No. 1 vessel verified by the Govt. Shipping Master at Chittagong, although the said CDC book was issued on 18.04.2012 to be valid up to 17.4.2017, wherein all the previous entries in the earlier CDC book were entered and verified by the Govt. Shipping Master at Chittagong. Such issuance and endorsement of the CDC Book to the master of a vessel although not a requirement of section 89 of the Bangladesh Merchant Shipping Ordinance 1983, yet the masters of the vessel as a practice obtains CDC book in their name. This revealed the fact that the appointment in the employment and discharge of the plaintiff No. 1, captain Abdul Hyee Mia was not endorsed in the CDC Book at the or just after his employment, rather during the pendency of the instant suit. This although indicates that the plaintiff No. 1 had joined the defendant No. 1 vessel on urgent and emergency basis when the Indian origin master and the crew members abandoned and left the vessel, compelling the plaintiff No. 1 to join the duty leaving aside his liability to attend the government shipping office at Chittagong for endorsement in the CDC Book nevertheless such failure shall not make him liable to face the consequence.
  17. Further it appears from the CDC Book, exhibit 5, that the plaintiff No. 1 procured the said CDC Book, being No. 07105, anew on 18.4.2012 when he was unemployed, having left his last job as Master in MV. B Gourab (Banglar Gourab) on 6.10.2010. Later when the photocopy of the said CDC Book has been made exhibit, as exhibit No. 5, the same contained a new page wherefrom it appears that the employment in the defendant No. 1 vessel M.V. OCEAN PEARL has been endorsed by the common seal of the Government shipping office at Chittagong. Moreover, the said Continuous Discharge Certificate (CDC) also contained the endorsement that the Master of the vessel, the plaintiff No. 1 was discharged on 30.09.2012 and the same was endorsed by the signature of the shipping master on 30.9.2013. Therefore, the employment of the Master, the plaintiff No. 1 in the defendant No. 1 vessel is required to be taken to have come to an end on and from 30.09.2012 and not from 30.09.2013. Accordingly the only outcome comes from the scenario that, this court finds that the plaintiff No. 1 was employed in the defendant No. 1 vessel as Master and served the vessel for the tenure commencing from 2.11.2010 upto the period 30.09.2012 for which he was entitled to salary and wages as per the employment contract for these total 330 days i.e. about 11 months. 
  18. It has been further asserted and claimed by the P.W. 1 Sk. Rafiqul Islam that he himself being the plaintiff No. 2 was employed through the employment contract dated 28. 10. 2010 as second officer in the defendant No. 1 vessel M.V. OCEAN PEARL by the defendant No. 4 Sigma Shipping Lines, on behalf of its foreign principle, the defendant No. 5 M/S. Prayati Shipping Lines (Pvt.) Limited and he signed off from the service on 21.07.2012. In order to prove this factual aspect the P.W. 1, on behalf of plaintiff No. 2, exhibited the photocopies of his Continuous Discharge Certificate (CDC), issued by the Shipping master in his name, since he is seaman, wherefrom it appears that the Government Shipping Master at Chittagong endorsed the employment of the defendant No. 2 in the defendant No. 1 vessel M.V. OCEAN PEARL on an from the date 28.10.2010 and therefore the plaintiff No. 2 successfully proved his engagement in employment in the defendant No. 1 vessel on and from 28.10.2010.
  19. But the Column for discharge of the plaintiff No. 2 from the said employment although has been written as 21.7.2012, but the same has been endorsed not on the original copy of the CDC book but on the photocopy of the same. The said endorsement was made by the master of the defendant No. 1 vessel, the plaintiff No. 1 Mr. Md. Abdul Hayee Miah, pursuant to the provision of section 131 of the Bangladesh Shipping Merchant Ordinance 1983, but not on the original CDC book, but on the photocopy of the 2nd sets of photocopies filed for the purpose of making the same exhibit. The said photocopy has been marked as exhibit No. 7. Therefore it appears that the plaintiff No. 2 failed to prove the date of his actual sign off from of the service and accordingly the same is required to be ascertained from other exhibited document.
  20. The plaintiff No. 3, Karimul Hoq claimed that he was employed through exhibit No. 8 dated 21.10.2010 as 2/E (2nd Engineer) in the defendant No. 1 vessel M.V. OCEAN PEARL and he has also exhibited the photocopy of the ‘Sea Farers Identity documents’ (SFI), exhibit No. 9, wherefrom it appears that the plaintiff No. 3 was previously employed in the defendant No. 1 vessel on 21.05.2010 and quitted the job on 03.09.2010 which was duly endorsed in the original copy of the document by the earlier master of the vessel. Thereafter the plaintiff No. 3 again joined the defendant No. 1 vessel on 21.10.2010, wherein the date of his new joining in the employment of the defendant No. 1 vessel was endorsed as 21.10.2010 and the date of quitting the job was endorsed as 14.6.2011. But, although the endorsement of joining the new employment in the defendant No. 1 vessel was made in the original SFI document, as appears from the photocopy, but the endorsement for the quitting the said job in the defendant No. 1 vessel has been made by the Master of the vessel i.e, plaintiff No. 1, not on the original, SFI document but on the photocopy of the same, the 2nd set filed for the purpose of making the same exhibit. Therefore it appears that this plaintiff No. 3 also failed to prove his date of sign off from the employment.
  21. The exhibit No. 10 is the photocopy of the employment contract of the plaintiff No. 4, Md. Kamal Uddin, which shows that the plaintiff No. 4 was employed in the defendant No. 1 vessel M.V. OCEAN PEARL on 1.11.2010 as an Electrician by the defendant No. 4 Sigma Shipping Lines on behalf of the principal defendant No. 3, the owner of the defendant No. 1 vessel, who later as P.W. also exhibited the photocopy of the ‘Sea Farers Identity documents’ (SFI) standing in his name, wherein the date of joining has been endorsed as 1.11.2010 and the date of quitting the job also endorsed as 14.6.2011. But although the date of joining was endorsed in the original copy of the SFI document, but the endorsement as to the quitting the job was made by the plaintiff No. 1 as the Master of the vessel, not on the original document, but on the photocopy, which has been made exhibit No. 10. Therefore it appears that this plaintiff No. 4 has failed to prove his tenure of service.
  22. Exhibit No. 12 being photocopy of the employment contract, shows that the plaintiff No. 5, Shah Makhlisur Rahman was employed on 26. 10. 2010 in the defendant No. 1 vessel M.V. OCEAN PEARL by the defendant No. 4 Sigma Shipping Lines Limited on behalf of the foreign principle M/S. Prayati Shipping (Pvt.) Limited, the defendant No. 3, who has also exhibited the photocopies of ‘Sea Farers Identity document (SFI) being exhibit No. 13, which does not shows any endorsement as to his employment in the defendant No. 1 vessel M.V. OCEAN PEARL or his quitting the employment at any point of time. Therefore the plaintiff no. 5 also failed to prove his appointment in the employment at any point of time or his tenure of service in the defendant No. 1 vessel.
  23. The plaintiff No. 6 Mohsin Mollah claimed that he was employed in the defendant No. 1 vessel M.V. OCEAN PEARL by the defendant No. 4 Sigma Shipping Lines on behalf of its principle M/S. Prayati Shipping Lines (Pvt.) Limited the defendant No. 3 on 24.10. 2010 as a GP, who has only exhibited the photo copy of his employment contract as exhibit No. 14, but he did not exhibit ‘sea fareres Identity document or any such document, to show his joining the employment in the defendant No. 1 vessel and the date of his quitting the employment. Therefore this plaintiff No. 6 also failed to have proved his tenure of service in the defendant No. 1 vessel.
  24. The plaintiff No. 7 Md. Ali Osman also claimed that he was employed in the defendant No. 1 vessel on 16.12.2010, through the employment contract, by the defendant No. 4 Sigma Shipping Lines on behalf of the owner of the defendant No. 1 vessel, the defendant No. 03, photocopy of which has been exhibited as exhibit No. 15. This plaintiff although exhibited the photocopy of ‘Sea Fares identity documents’ (SFI) as exhibit No. 16, but the endorsement made in the Column of date of joining and date of quitting the job contained the endorsement as made on16.12.2010 and 30.9.2013 respectively, which having been made by the plaintiff No. 1 as Master of the vessel, not on the original document but on the photocopy, as exhibited herein. More over a further endorsement in exhibit 16 shows that the validity of the said document expired on 14.12.2011. Therefore this plaintiff No. 7 also failed to prove his employment and service tenure in the defendant No. 1 vessel.
  25. The plaintiff No. 8 Shamsuddin made his employment contract as exhibit No. 17, which has been allegedly executed by the defendant No. 4 Sigma Shipping Lines on behalf of his foreign principle M/S. Prayati Shipping (Pvt.) Limited, defendant No. 03, which shows that the plaintiff No. 8 was employed as M-Man in the defendant No. 1 vessel. But neither any CDC or ‘Sea Farers identity documents’ (SFI) nor any other documents showing his date of joining and the quitting the job in defendant No. 1 vessel have been submitted or exhibited by the plaintiff No. 8. Therefore the alleged employment and the service tenure of this plaintiff No. 8 in the defendant No. 1 vessel has not been proved.
  26. The employment of any Bangladeshi Seaman in any ship or vessel, either Bangladeshi or foreign, is regulated by the provision of Bangladesh Merchant Shipping Ordinance 1983. The persons employed as such are known as ‘Sea man’ which has been defined in section 2(45) of the said ordinance which excluded the ‘Master’ of the vessel.
  27. The employment of the seamen in a foreign vessel within Bangladesh is regulated by the provision Chapter 10 of the Merchant Shipping Ordinance, 1983 and the provision of section 107 of the said ordinance deals with the matter of documents regarding the employment of seaman, which reads as follows;
Merchant Shipping Ordinance, 1983
Section 107(1). Seaman to be in possession of Continuous Discharge Certificate.- (1) No person shall engage any Bangladesh seaman at any port or place in Bangladesh, nor carry to sea from any such port or place any such seaman in any ship, except a coasting ship of less than two hundred tons gross so long as such coasting ship is employed on voyages confined to ports or places within Bangladesh, unless the seamen is in possession of a Continuous Discharge Certificate issued in Bangladesh by a Shipping Master in a form approved by the Director-General of Shipping or such other document as may be prescribed,
(2) if a person engages or carries to see any seaman in contravention of sub-section (1), he shall, for each offence, be punishable with fine which may extend to ten thousand Taka.
  1. The simple meaning of the aforesaid provision is that no person shall be employed or engaged on board a ship, unless the seamen be issued with a ‘Continuous discharge certificate’ (CDC) book or other similar document by the Government Shipping Master for recording details of his service. The sub section (2) of the said section further provides that if any person engages any sea man in any vessel without the seaman having in possession of identity document, he shall be liable to punishment.
  2. The provision of section 131 of the Merchant Shipping Ordinance, 1983 deals with the issue of entries to be made in ‘continuous discharge certificate’ when the seaman is discharged from the job. The provision of the said section runs as follows;
Merchant Shipping Ordinance, 1983
         Section 131.Entries to be made in Continuous Discharge Certificate and return of Certificates of Competency to officers on discharge.-
  1. If a seaman is discharged from a ship in Bangladesh, either on his discharge or on payment of his wages, the master shall enter in the Continuous Discharge Certificate of the seaman, under his signature particulars specifying the period of the seaman’s service and the date and place of this discharge.
  2. The master shall, upon the discharge of every Certificated Officer whose Certificate of Competency has been delivered to and retained by him, return the certificate to the officer.
  3. If a master acts in contravention of sub section (1), or fails, without reasonable cause, to return the Certificate of Competency to the officer concerned as required by sub-section (2), he shall, for each offence, be punishable with fine which may, in the former case, extend to one thousand taka and in the latter to five hundred Taka.
  1. The aforesaid provision mandates that the discharge of the seaman from the service has to be endorsed in the Continuous Discharge Certificate book by the ‘Master of the vessel’ in order to make the discharge from the job a lawful one.
  2. From the aforesaid provisions its appears that every Bangladesh seaman is liable to hold a ‘continuous discharge certificate’ (CDC) book issued by the Government shipping master in the prescribed format, wherein their engagement in any employment in any vessel and his discharge from such vessel must be endorsed by the Master of the vessel. The authority known as ‘Shipping Master’ is engaged by the government under the provision of section 8 of the Bangladesh merchant shipping ordinance 1983.
  3. In the instant case it appears that only the plaintiff No. 1 has been able to prove that his employment has been properly endorsed in the CDC book and although the plaintiff No. 2 proved his endorsement as to the date of joining in the service as has been properly endorsed, but his quitting the employment has not been properly endorsed in his CDC book, meaning thereby that the plaintiff No. 2 failed to prove his date of singing off from the employment.
  4. In the case of other plaintiffs the original ‘Sea Farers identity documents’ did not contain the endorsement as required by law, rather the plaintiff No. 1 unlawfully incorporate the same in the photocopy, in order to enable them to claim so called salary and wages for certain fictitious period in the instant suit.
  5. These admitted unscrupulous acts have been attempted to be justified by the learned Advocate Mr. Mohammad Abdul Khaleque that the vessel being in distressed condition and the situation was a urgent one, the employer Sigma Shipping Lines Limited hurriedly employed and placed the plaintiff on board the vessel, without having endorsed the employment in the CDC book or in the Sea Farers Identity documents, which is nothing but a lacuna not tentamounts to forgery and accordingly the same may be taken through lenient view.
  6. In order to consider this submission we have meticulously examined the entire record of this suit wherefrom it appears that the defendant No. 1 vessel M.V. OCEAN PEARL was aground and the same was ultimately sold by this court at the instance of the plaintiffs in the said aground condition. It has been asserted that the Indian origin Master and the crew members of the said vessel left the vessel in distressed condition, whereupon in order to save the vessel, the owners were required to immediately manned the vessel by any means. This factual situation of the defendant No. 1 vessel has been established by different documents available in the record, especially from the report of the Marshal, who sold the vessel under the order of this court, in it’s aground position. Therefore this court finds that the defendant No. 4 actually hurriedly employed the plaintiffs in the defendant No. 1, vessel M.V. OCEAN PEARL and the plaintiffs practically boarded the vessel in an urgent situation when the vessel was in distressed condition.
  7. In this respect the content of the exhibit No. 18, may be taken into consideration, which reveals that the plaintiff could prove the distressed condition of the vessel at the relevant period, since the captain of the vessel, the plaintiff No. 1, sent the e-mail, exhibit No. 18, to one Mr. Biswash/Mr. Atul Jain wherein he has stated the following state of the vessel;
From: md miah capthai_1971@yahoo.com
Date: Wed, 29 Feb 2012 19:13:53-0800(PST)
To: <biswas @marineindia.net>
Cc: <attaritd @gmail.com>
Subject: 010312 payment of master and crew salary.
Ka: Mr. biswas/Mr. Atul Jain.
Fm: Master mv. Ocean Pearl.
Gd day sair,
I like to draw your kind attention for the following facts for the interest of owner:
AA) I joined mv. Ocean pearl on 2/11/10 during distress conditions of the vessel (vessel was made to aground before my joining to avoid total loss). Former staff in normal conditions from 14/09/10 to 8/10/10 discharged only 3473.45 mtns of cargo including hiring floating crane where spent about usd 100000/= for floating crane. Present master after joining, he managed to discharge 1906 mtns of cargo whose price is about usd 600000/= in distress conditions with great risk of mine and my crew. This is due to my courageous activities, we arranged to discharge without using any floating crane in distress conditions. We managed to save owner usd 600000/- from discharge of 1906 mtns of cargo where nobody should have any doubt. June, 2011 vessel was broken into two pieces due to uneven stress for which we could not discharge any more cargo.
At present vessel has become wreck. It is very easy to take this wreck by port because as per maritime law it is in favour of port. Port can take verdict from Admiralty court after only one day work of admiralty court as maritime law is in favour of port. In this situations you may loss your ownership. Port wanted to take the vessel. This is me who used personal influence over port for which port did not take this valuable wreck. I have good personal influence over port for which port did not take the wreck. I hope so long I am here port will not take this wreck where you will not loss your ownership. So you cannot deny that due to my activities you have saved used 600000/= in addition to valuable wreck from where still you can get good money from the sell of wreck. I am working for the interest of owner and  owner should look after me and my crew where owner should pay our salary. My 17 months running where I received only usd 30441/= which is very less in compare with my balance wages. You have committed for several times to pay our full salary after receiving Hull and machinery insurance is finalized.
Now I request your good self to pay our salary before 15.03.2012 . I may not with your vessel after 15/03/12 may not stay with your vessel after 15.03.12. I may take all salaries from port after handing over my command along with wreck to harbor master of the port where you may loss your ownership for which you may have no right to claim nay money from the port for the wreck. Pls note I am at sea for last 37 years including 25 years command with the owner I never betrayed with any of my owners and hope in future  also shall never betray with my owner if owner look after our interest.
Vdrgrds/master mv. Ocean pearl.
  1. From the aforementioned very circumstances of the defendant No. 1 vessel, M.V. OCEAN PEARL, this court is inclined to believe that the plaintiff’s employment were made hurriedly in the defendant No. 1 vessel M.V. OCEAN PEARL by the defendant No. 4 upon which the plaintiffs boarded the vessel from their respective dates of their employment and as such it may be taken that the plaintiffs could prove their employment in the defendant No. 1 vessel to have been commenced from the date as mentioned in their employment contract being exhibit Nos. 3, 4, 6, 8, 10, 12, 14, 15 and 17.
  2. Now the question comes as to how this court should ascertain the tenure of service of the plaintiffs in the distressed defendant No. 1 vessel M.V. OCEAN PEARL, when their joining the duty on board the vessel was proved?
  3. In order to meet the ends of justice this court has to ascertain such date by any lawful means and accordingly has to travel through the other exhibits as has been made by the plaintiff Nos. 2-8 to find actual date of signing off of these plaintiffs.
  4. The plaintiff No. 1, by the documentary evidence, y proved that he has signed off from the job on 30.09.2012 as was endorsed by the Shipping Master in his CDC book on 30.9.2013. Therefore, the tenure of employment of the plaintiff No. 1 in the defendant No. 1 vessel as a Master of the vessel has been proved as from the date of 2.11.2010 up to 30.9.2012. All the plaintiff in corroborative manner proved the fact that the plaintiff No. 1 is now suffering from paralysis and as such completing bed ridden, for which the plaintiff No. 1 could not depose before this court, although he held a Power of Attorney on behalf of the other plaintiffs. Later, all the plaintiffs including the plaintiff No. 1 executed a Power of Attorney in favour of the plaintiff No. 2 S.K. Rafiqul Alam to depose in the instant suit. Accordingly the plaintiff No. 2 gave evidence in the instant suit, not only on his behalf, but also on behalf of other plaintiff’s, including the plaintiff No. 1, the testimony of which has been further corroborated by other plaintiffs, who also deposed as Pw’s.
  5. It appears that the plaintiff No. 1 being the Master of the defendant No. 1 vessel M.V. OCEAN PEARL was liable under the provision of section 141 of the Merchant Shipping Ordinance 1983 to deliver an account of the wages and salary of the crew members and upon collecting the same from the owners of the vessel to disburse the same among the seamen’s under him. In such order to collect the seamen’s wages and salary, the provision of section 141 of the merchant shipping ordinance 1983 requires the Master of the defendant No. 1 vessel to prepare a role i.e. portage bill of the seaman under him and one copy of the said role is to be submitted inter alia, to the shipping office at Chittagong, since the vessel was at Chittagong. Although the P.W. 1, submitted 17 copies of such portage Bill, starting from the month of November 2010, up to February 2012, which were marked as Exhibit No. 24 (series), but nowhere of these copies contain any mark that the copy of the same were also submitted to the shipping office, Chittagong.
  6. However, from the content of exhibit No. 24 (series) seventeen pages, it appears that the Master of the vessel M.V. OCEAN PEARL, the plaintiff No. 1 captain Md. Abdul Hayee Mia prepared and submitted the seaman’s role and portage bill to the owner of the vessel through the defendant No. 4, from the month of November, 2010, wherefrom the exhibit No. 24(1), which is the seaman’s role for the month of November 2010, shows that there was as many as 16 (sixteen) Seaman working on board the defendant No. 1, vessel out of which 5 (five) Seaman were shown as signed off on different dates including the plaintiff No. 5 Shah Makhlisur Rahman, who has been mentioned as signed off on an from 20.11.2010. Similarly the plaintiff No. 6 Mohsin Mollah was shown as has been signed off on 20.11.2010. The sea man’s role and portage bill for the total month of June, 2011, made in two part, Exhibit No. 24(7) and 24(8) show that all the 10 Seaman of the vessel signed off on 14.06.2011, which also erroneously included, the name of earlier signed off Seaman the plaintiff No. 5, Shah Makhlesur Rahman and plaintiff No. 6 Mohsin Mollah as signing off from 14.06.2011. This exhibit No. 24(1), 24(7) and 24(8) appear to be issued in regular manner and therefore reliance may be imposed upon it for the purpose of ascertaining the correct date of signing off the plaintiff Nos. 2, 3, 4, 5 and 6. Therefore, it appears that this plaintiff Nos. 2, 3, 4, 5 and 6 served the defendant No. 1 vessel M.V. OCEAN PEARL till they signed off on the respective dates, as mentioned in the said portage bills, being exhibit No. 24(1) and 24(7) and 24(8) and during that period these plaintiffs were not paid the following amount shown against their name therein up to point of time, in respect of the due salary and wages which are shown in the following table.
plaintiff name sign off date Due upto sign US$
Sk. Rafiqul Alam 14.06.2011 25,886.00
Karimul Hoq 14.06.20144 45,342.00
Md. Kamal Uddin 14.06.2011 18,167,.00
Shah Makhlisur Rahman 20.11.2010 483.00
Mohsin Mollah 20.11.2010 266.66
 
  1. The other exhibit which we have examined for the purpose of ascertainment of the date of signing off of the other remaining plaintiffs No. 1, 7 & 8 from the employment in the defendants No. 1 vessel, are the copy of the e-mail sent to the owners of the defendants No. 1 vessel. These were the regular correspondence made much earlier than the suit filed. The plaintiff No. 1 sent different e-mails to the defendant No. 3, claiming their wages and salary, a copy of which has been made exhibit as exhibit No. 18 (series) (eight pages), wherefrom it appears that in the e-mail dated 20th February, 2012, exhibit 18 (series) the plaintiff No. 1 stated the unpaid wages and salary of the employed seamen and also the due salary of the signed off seamen which reads as follows;
“From: md miah [mailto: capthai 1971 @yahoo.com]
Sent: Monday, February 20,2012 11:13 PM
To: biswas@marneindia.net
Cc: attarltd@gmail.com
Subject:210212 payment of master and crew salary.
ka: Mr. Biswas/Mr. Atul jain.
fm: master mv. ocean pearl.
gd day sir,
Ref our telcon on 20/02/12 I understood that you may send crew and officers salary except master and 2/E at the end of this month or latest 1st week of March, 12. I surprised and regret to know your ideas. For last 8-10 months you committed several times to pay our full salaries after finalized Hull and machineries insurance. Now hull and machineries insurance is finalized and you are telling that master and 2/E salaries will not be sent. you were continuously assured me for last 8-10 months that your all salaries will be paid after finalized hull and machineries insurance. Now hull and machineries insurance is finalized and you will not pay our salary which indicates your all former commitments are false commitments. Pls note our full salaries on 29th Feb, 2012 will be as per following calculations:
Master………………………usd 89309.0
AB Mokles…………………usd 4267.0
Ab Osman………………….usd 3413.0
GP Mollah…………………usd 2134.0
Motorman Shamsu………usd 3413.0
………………………………………………
………………………………………………
Total……………………..usd 102536.0
Signed off crew:
2/off Rafiqul Alam…………usd 17105.0
2/E Karimul Haque……….usd 29818.0
EI off Kamal……………….usd 13167.0
Cadet Aslam, Nazmul and khalek… usd1556.0
Fitter zafar…………………usd 203.0
……………………………………………
……………………………………………
Gross Total………………usd 164385.0
I request your good self to send all above salaries at the last week of Feb, 2012 or latest 1st week of March 2012. If you do not send our above salaries within above times then we shall understand that you are not interested to maintain good relationship with us anymore. Pls arrange my reliever along with my full salaries within 1st week of march 2012. In order to avoid deterioration of our relationship I hope that you will do fair accordingly vbrgrds/master,mv.ocean pearl. 
  1. The above e-mail contain an amount shown against the name of plaintiff No. 2 Sk. Rafiqul Alam as US$ 17,105.00 while exhibit 24(7) shows his date of signing off as 14.06.2011 and due salary upto that date as US$ 25,886.00 which indicates that the plaintiff No. 2 has been paid with some amount after the issuance of exhibit No. 24(7). In the above e-mail the plaintiff No. 5 shah Makhlisur Rahman and plaintiff No. 6 Mohsin Mollah were erroneously shown as continuing employee, although exhibit No. 24(1) show that they have signed off on 20.11.2010.
  2. This e-mail was replied by the defendant No. 3, wherein the defendant No. 3 has although admitted the genuinity of some of the dues of the crew members, either for those, continuing in the employment or those have signed off, yet expressed his dissatisfaction as to the sign off date of some of the crew members by alerting the plaintiff No. 1 not to make confusion. The content of the reply e-mail, dated 21st February, 2012, sent by the defendant No. 3 is reproduced below for better appreciation;
From: Supriya accounts@marineindia. net
Subject: Re:210212 payment of master and crew salary.
To: “md miah” <capthai_1971 @yahoo.com>
Cc. accounts@marineindia.net
Date: Tuesday, February 21,2012, 5:07 AM
Good day Capt. Miah,
Ref below, Crew salary for on board and s/off is correct, except Cdt-Aslam/ Nazmul & Khalek as per your msg dtd 2/22/12 salary as per below.
Aslam-$ 769
Khalk-$289
Nazmul-$ 399
…………………….
…………………….
Total $ 1457
Pls chk n confirm finally, pls do not create any more confusions,
Thanks n regards
Supriya.
  1. However since the defendant No. 3 admitted that crew salary for on board and sign off are correct, this court is inclined to believe that the dues of the plaintiff No. 5 Shah Makhlisur Rahman and plaintiff No.6 Mohsin Mollah (mentioned in the exhibit No. 18 as AB Mokhles) comes to US$ 4267.00 and US$ 2134.00 respectively. The dues of the plaintiff No. 2 Sk. Rafiqul Alam is reduced to US$ 17105.00 and also that of the plaintiff No. 3 Karimul Hoq reduced to US$ 29818.00 and that of plaintiff No. 4 Md. Kamal Uddin to an amount of US$ 13167.00. 
  2. This e-mail correspondences, exhibit 18(series) along with the exhibit No. 24(1) and 24(7), may be taken into consideration as reflecting more or less true position of the dues remains unpaid to the plaintiff’s. Therefore it may be believed partly that the plaintiff’s, mentioned therein, are lawfully entitled to their salary and wages upto the amount and date as mentioned therein. Practically this is the actual amount of due salary of the plaintiffs till the plaintiffs have filed the suit on 9.5.2012.  The plaintiffs, if at all entitled to their unpaid due wages and salary, they are entitled to get the same up to the date shown therein in exhibit No. 24(1) 24(7) and 18 (series), when some of them have signed off.
  3. Accordingly, admittedly the plaintiff No. 1, Captain Md. Abdul Hayee Miah, is entitled to get only his basic salary up to 30th September 2012 for about 11months at the rate of USD 7,500 per month for an amount of US$ 1,72,993.15 equivalent to BD Taka 1,41,85,436.35 only @ of Tk. 82 per US dollar.
  4. The plaintiff No. 2, Sk. Rafiqul Alam 2/Officer, is entitled to get only his basic salary up to 14th June 2011 at the rate of USD 3,500 per month for an amount of US$ 17105.00 equivalent to BD Taka 14,85,436.35 only @ of Tk. 82 per US dollar.
  5. The Plaintiff No. 3, Karimul Haque 2/E, is entitled to get only his basic salary up to the month of 14th June 2011at the rate of USD 6,000 per month for an amount of US$ 29818.00 equivalent to BD Taka 24,45,076.00 only @ of Tk. 82 per US dollar.
  6. The Plaintiff No. 4, Md. Kamal Uddin E/E, is entitled to get only his basic salary up to the month of 14th June 2011 at the rate of USD 2,500 per month for an amount of US$ 13167.00 equivalent to BD Taka 10,76,694.00 only @ of Tk. 82 per US dollar.
  7. The Plaintiff No. 5, Shah Makhlisur Rahman AB-1, is entitled to get only his basic salary up to the month of November 2010 at the rate of USD 500 per month for an amount of US$ 4267.00 equivalent to BD Taka 3,49,894.00 only @ of Tk. 82 per US dollar.
  8. The Plaintiff No. 6, Md. Mohsin Mollah GP, is entitled to get only his basic salary up to the month of November 2010 at the rate of USD 250 per month for an amount of US$ 2134.00 equivalent to BD Taka 1,74,988.00 only @ of Tk. 82 per US dollar.
  9. The Plaintiff No. 7, Md. Ali Osman AB-2, is entitled to get only his basic salary up to the month of 14th June 2011 at the rate of USD 400 per month for an amount of US$ 3413.00 equivalent to BD Taka 2,79,866.00 only @ of Tk. 82 per US dollar.
  10. The Plaintiff No. 8, Shamsuddin AB, is entitled to get only his basic salary up to the month of 14th June 2011 at the rate of USD 400 per month for an amount of US$ 3413.00 equivalent to BD Taka 2,79,866.00 only @ of Tk. 82 per US dollar.
  11. Therefore, it appears that the Master of the vessel, the plaintiff No. 1 and also the plaintiffs No. 2-8 are entitled to get their due salary and wages, as shown in the following table;
SL Name of the plaintiff Date of joining Date of signing off US$ BD Tk.
1 Plaintiff No. 1
Md. Abdul Hyee Mia
02.11.2010 30.9.2012 1,72,993.15 1,41,85,436.35
2 Plaintiff No. 2
Sk. Rafiqul Islam
28.10.2010,
,
 
14.06.2011
 
17105.00 14,02,610.00
3 Plaintiff No. 3
Karinul Hoque
21.10.2010 14.06.2011 29818.00
 
24,45,076.00
4 Plaintiff No. 4
Kamal Uddin
01.11.2010 14.06.2011 13167.00 10,79,694.00
5 Plaintiff No. 5
Shah Makhlesur Rahman
26.10.2010 20.11.2010 4267.00 3,49,894.00
6 Plaintiff No. 6
Mohsin Mollah
24.10.2010 20.11.2010 2134.00 1,74,988.00
7 Plaintiff No. 7
Md. Ali Osman
16.12.2010 14.06.2011 3413.00 2,79,866.00
8 Plaintiff No. 8
Shamsuddin
29.10.2010 14.06.2011 3413.00 2,79,866.00
Total US$=246310.50; Total Tk.=2,01,97,430.00
 
  1. The plaintiffs No. 2-8 since have proved that they had served the vessel M.V. OCEAN PEARL till they have signed off, admittedly from ascertained date they are entitled to recover the same from the defendants.
  2. The unscrupulous act done by the plaintiff No. 1 as to endorsing the fictitious date of sign off on the photocopies of the CDC/SFID, disentitles all the plaintiff from any relief in this suit, in respect of claimed interest on the decretal amount at the rate of 18%, since forgery vitiates everything including disentitling one from his rights . But that being taken in lenient view by this court, on the consideration that the plaintiff’s really served the vessel, in distressed condition, engaging their labour and merit to save the vessel and thereby to save the owner of the vessel from the liability to compensate the consignee of the cargo, the minimum relief is given by this court in order to strike a balance in between rendering justice and the unscrupulous act of the plaintiffs. Moreover the plaintiff did not and could not prove any extra effort engaged during their employment tenure, save and except their regular duty and as they are not entitled to get any further payment as to reward or anything.
  3. Therefore, the plaintiffs are entitled to their claim to due salary and wages up to the date of signing off from the employment in the defendant No. 1 vessel as is decided by the court and as such the instant suit is required to be decreed to that extent.
Issue No. 5
  1. The plaintiffs have claimed in the plaint as well as the P.Ws stated that they are entitled to 30% additional money in respect of their fooding and lodging. Admiralty the plaintiffs have received fooding and lodging charge upto July 2012 and obtained order from this court on 5.8.2012, 13.2.2013 and 31.7.2013 along with a correction on 16.09.2013 for payment of Tk. 1,40,000.00 per month as fooding and lodging charge tell their actual date of signing off from the employment. This court finds that the plaintiff No. 1 signed off on 30.09.2012 plaintiff No. 2, 3, 7 & 8 signed off on 14.6.2011 and the plaintiff No. 5-6 signed off on 20.11.2010, none of them were either entitled or are further entitled to any fooding and lodging charge. Therefore, the order dated 5.8.2012, 13.2.2013 and 31.7.2013 along with its correction is required to be recalled and accordingly recalled hereby.
  2. But so far the order dated 31.7.2013 is concerned as to payment of Tk. 2,47,080.00 (two lac forty seven thousand eighty) to the plaintiff No. 1 in reimbursement of the cost incurred by him for the purpose of publishing Newspaper publication of auction notices, the same is required to be paid to the plaintiff No. 1 and accordingly the plaintiff No. 1 is also entitled to further decree for an amount of Tk. 2,47,080.00 along with his decreetal amount as given in this judgment. Whether the said amount was contributed by any other plaintiff, is a question amongst themselves and accordingly the same will be required to be resolved by themselves. 
  3. In the result, the instant suit is decreed in modified form.
  4. The plaintiffs are jointly entitled to a decree for an amount of Tk. 2,04,44,510.35 (two crore four lac forty four thousand five hundred ten and thirty five paisa only) equivalent to US$ 1 @ of 82 per US dollar as their due salary and wages. The plaintiffs are not entitled to any other relief in the instant suit.
  5. The decreetal amount will be distributed among the plaintiffs in the following manner;
  6. The plaintiff No. 1 Captain Md. Abdul Hayee Miah is entitled to get BD Taka 1,41,85,436.35 + BD Tk. 2,47,080.00= BD Tk. 1,44,32,516.35 only, plaintiff No. 2, Sk. Rafiqul Alam 2/Officer, is entitled to get BD Taka 14,02,610.00 only, Plaintiff No. 3, Karimul Haque 2/E, is entitled to get BD Taka 24,45,076.00 only, Plaintiff No. 4, Md. Kamal Uddin E/E, is entitled to get BD Taka 10,79,694.00 only, Plaintiff No. 5, Shah Makhlisur Rahman AB-1, is entitled to get BD Taka 3,49,894.00 only, Plaintiff No. 6, Md. Mohsin Mollah GP, is entitled to get BD Taka 1,74,988.00 only, Plaintiff No. 7, Md. Ali Osman AB-2, is entitled to get BD Taka 2,79,866.00 only and Plaintiff No. 8, Shamsuddin AB, is entitled to get BD Taka 2,79,866.00 only.
However, there shall be no order as to costs.
Ed.
 
 

Admiralty Suit No.  38  of 2012