This suit was brought under s 3(2) of the Admiralty Jurisdiction of High Courts Ordinance 1980 (the Ordinance). The plaintiff applied for the arrest of the first defendant vessel. The plaintiff argued that its claim against the vessel and its owner arose from a bill of lading, which is a claim in respect of a contract of carriage of goods under s 3(2)(h) of the Ordinance. Hence, the arrest of the vessel was fully justified. A contract of carriage has been defined in art 1.b of the Schedule to the Carriage of Goods by Sea Act 1925 (COGSA). The contract of carriage applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by sea, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charterparty, from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.

The first-third defendants argued that the first defendant vessel was chartered on a time charter to the fourth defendant by the shipowner/second defendant. The leasing of the vessel to the fourth defendant did not make the latter the beneficial owner of the first defendant vessel. The charterer, be it time charterer or charterer by demise, was excluded from the category of persons who beneficially own majority shares in the ship sought to be arrested. The vessel could not be attached in an action in rem, as the plaintiff had failed to show that the time charterer was the owner, or beneficially owned majority shares in, or interest in the defendant vessel itself. The first-third defendants relied on VN Lakhani & Co v MV Lakatoi Express PLD 1994 SC 894 (CMI576); Arshad Corp (Pvt) Ltd v The Ship Maersk Astro PLD 1988 Kar 515; Jaffer Brothers (Pvt) Ltd v MV Eurobulker II 2002 CLD 926 (CMI1660); and Sun Line Agencies Ltd v MV 'Psiloritis' 1984 CLC 1553. They further argued that they enjoyed a contractual lien over the vessel's cargo.

The fourth defendant stated that it did not submit to the jurisdiction of this Court, but that its appearance was limited to the extent of assisting the Court regarding the release of its seized property, ie 2,630 mt of LPG, laden on board the first defendant vessel. For other claims, the plaintiff was obliged to resort to the applicable law and jurisdiction, which is English law, and either the Dubai International Financial Centre (DIFC) Courts of the UAE and/or arbitration in the UK, as per the terms of the relevant charterparty, bills of lading, and sale and purchase contract.

Held: The proceedings are disposed of in the following terms:

1. The fourth defendant is directed to furnish solvent surety/a bank guarantee amounting to AED 5,332,325 or the equivalent amount in PKR to the satisfaction of the Nazir of this Court.
2. On furnishing the surety/bank guarantee as directed, the arrest orders shall deem to have been recalled. Consequently, the Port Authorities may allow the first defendant vessel to sail.
3. The dispute with regard to the monetary issues, if any, pending between the second and fourth defendants is already the subject-matter of arbitration proceedings in London, so for this reason alone nothing is to be decided here for their claim in this suit, but recourse may be made by them in accordance with the agreement (the charterparty) containing the arbitration clause vis-à-vis choice of law and forum selection.
4. On filing written statements by all the defendants, the Court Office shall fix this suit for settlement of issues. The parties may also apply for the appointment of a Commissioner to record evidence for an early disposal of this lawsuit.

Recently, in Spectre Consulting Ltd v MT 'Everrich 6' PLD 2018 Sindh 136, the niceties and exactitudes of an action in rem and action in personam were discussed. A significant peculiarity of an action in rem is that the plaintiff is allowed to commence the proceeding by going after a specific piece of property, the ship, or the cargo, or certain other associated property. It is not a proceeding against any one person or another, nor does it deal with this or that person's title to the thing (res), but is a legal device employed for satisfying, under conditions of seafaring life and exigencies of international maritime transactions, the claim of a person who has suffered damage or injury. The proceeding commences by issuing the process on the ship and taking steps to arrest it, so that it may not move out of the jurisdiction. The distinguishing feature of the action in rem has always been the ability of the maritime claim to proceed against the ship directly, which was regarded as the defendant, the ship being personified. Whereas the action in personam in admiralty jurisdiction, which is of the same nature as an ordinary common law action, commences by summons served on a defendant which is a person, natural or juridical, and not a thing (res). If the technical object of the suit is to establish a claim against some particular person, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam, although it may concern the right to or possession of a tangible thing. An action in personam is an ordinary action, as in the common law courts. The judgment of the court is a personal one in the nature of a command or prohibition against the unsuccessful party. The action may be initiated either as action in rem or as action in personam, depending on the conditions specified in admiralty law for each form of action. These forms of actions are not mutually exclusive; if conditions for both forms of actions are satisfied, a plaintiff may take recourse to either of them or both of them, as it may find expedient.