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Nicholas Schinas Vs. Nemazie and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberOriginal Suit No. 20 of 1943
Reported inAIR1952Cal859
ActsContract Act, 1872 - Sections 182 and 230; ; Evidence Act, 1872 - Section 114; ; Merchant Shipping Act,1923 - Sections 4, 28(2), 43, 44(1) and 119
AppellantNicholas Schinas
RespondentNemazie and anr.
Appellant AdvocateN. Barwell, Adv.
Respondent AdvocateB. Das, Adv.
Cases ReferredGirdhar Damodar v. Kassigar Hiragar
- p.b. mukharji, j.1. this is not the legendary maritime saga but is a now odyssy where a modern ulysses has not returned home from his wanderings. it is the story of a greek sailor left derelict at the port of calcutta. he sailed on 27-2-1941, from new york by s. s. eonin under a spanish american master, flying the flag of the republic of panama with that unlucky number of 13 greeks in the crew. s. s. ronin arrived in calcutta on or about the 2nd or 3-6-1941. immediately on his arrival in calcutta he had to be admitted to the presidency general hospital suffering from bronchitis and asthma and there underwent treatment for 22 days. coming out from that hospital he was again in the howrah general hospital for another three weeks.2. he signed this plaint on 10-12-1942, more than one year and.....

P.B. Mukharji, J.

1. This is not the legendary maritime Saga but is a now Odyssy where a modern Ulysses has not returned home from his wanderings. It is the story of a Greek Sailor left derelict at the Port of Calcutta. He sailed on 27-2-1941, from New York by S. S. Eonin under a Spanish American master, flying the flag of the Republic of Panama with that unlucky number of 13 Greeks in the crew. S. S. Ronin arrived in Calcutta on or about the 2nd or 3-6-1941. Immediately on his arrival in Calcutta he had to be admitted to the Presidency General Hospital suffering from bronchitis and asthma and there underwent treatment for 22 days. Coming out from that hospital he was again in the Howrah General Hospital for another three weeks.

2. He signed this plaint on 10-12-1942, more than one year and a half after his arrival in Calcutta. He presented the plaint on 7-1-1943. He sues as a pauper one Nemazie, owner of S. S. Ronin for the sum of ES. 13004 as his salary for 1 year 5 months and 21 days from 10-6-1941 to the 30-11-1942, as the Chief Steward of the ship at 64 per month coming altogether to & 1132 16s. which is said to be the equivalent of Its. 14104 at the rate of 1s. 6d. to the rupee. He gives credit against this sum for the amount of Rs. 1100 admitted to have been received by the plaintiff in driblets from time to time subsequent to 9-6-1941. This is the only subject matter of this suit and the only present controversy between the parties.

3. Before the suit proceeds even to the stage of the written statement by the defendants there follows a strange interlude for over a year and four months. The plaintiff was arrested by the Calcutta Police on 24-1-1943, and despatched via Cochin and Aden to Alexandria, the then seat of the Greek Government in the last War when. Greece was under the occupation of Germany, to answer certain charges which are not relevant for purposes of this suit. The plaintiff was acquitted of all such charges. Then began the plaintiff's return journey to Calcutta. He approached a Greek ship by the name of S. S. Nichostin and signed on as a Galley boy or a cook. His next halt was Aden where he stayed for 5 days. Thereafter he took another ship and sailed away as an Assistant Cook to Souths Africa. From there he was brought back to Egypt and then to Suez where he was disembarked. Prom Suez he says he returned to Calcutta by another ship S. S. Victorious on the 28-5-1944. That is the interlude between 24-1-1943 and 28-5-1944.

4. Enraged by Neptune's disfavours the plaintiff now invoked the Muses of the Law. He turned his attention to the suit which he had filed for relief.

5. This suit which was instituted on 7-1-1943, but had made no progress was now revived by his taking out the writ of summons and serving it upon the defendant Nemazie on the (?) June 1944. He also brought another suit being suit no. 900 of 1944 against defendant Lionel Edwards Ltd. and the Greek Consul for damages for malicious prosecution and false imprisonment which was first dismissed by Edgley J. But the plaintiff appealed and finally obtained relief from the Court of Appeal on 7-7-1948, for the sum of Rs. 7500 as damages.

6. In this suit the plaint was amended on 13-9-1946, by adding Lionel Edwards Ltd. as the second defendant and the two new paras. 3 (a) and 3 (b) to the plaint. The written statements were filed by the two defendants on 3-1-1949, and the additional written statements of the two defendants were filed on 27-2-1950.

7. The suit, as constituted after the amendment, is a claim by the plaintiff for the sum of Rs. 13004 as salary due for 1 year 5 months and 21 days from 10-6-1941 to 30-11-1942 against the defendant 1, Nemazie said to be carrying on business through his agent, the defendant 2, Lionel Edwards Ltd. within jurisdiction and also against the defendant 2, Lionel Edwards Ltd. Both principal and agent are sued at the same time and in the same suit.

8. In my judgment the suit against the defendant 2, Lionel Edwards Ltd. must fail on preliminary grounds. On a contract both principal land agent cannot be sued in the same suit. Section 230, Contract Act, provides that the agent is not personally bound by the contract except in the three cases specified there. The present suit does not come within any one of these exceptions. Secondly, the plaint, even after the amendment, does not plead and disclose any cause of action whatsoever against the defendant 2. Thirdly in my view, the claim, even if any, against the defendant 2, is barred by limitation. The suit, as I have said, made this claim on 7-1-1943. But the defendant 2, was not made a party defendant to the suit until 13-9-1946.

It is provided by Section 22 (l), Limitation Act, that where after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall as regards him be deemed to have been instituted when he was so made a party. On the facts, therefore, in this case the defendant 2, was made a party more than three years after the plaintiff's presentation of his claim in the plaint in this Court. Even taking the most liberal view of the word 'voyage' as the terminus a quo in Article 101, Limitation Act, which prescribes a limitation for three years for seaman's wages from the end of the voyage during which the wages are earned, the claim of the plaintiff is barred. In fairness to Mr. Barwell learned counsel appearing for the plaintiff, it must be said that after the argument on the question that the suit must fail against the defendant 2, on these grounds he did not contest any of these grounds.

9. Without any further reference to any other questions, therefore, this suit against the defendant 2, must on these grounds fail. I, therefore, dismiss this suit as against the defendant 2.

10. I propose now to deal with the plaintiff's claim against the defendant 1, 0Nemazie, sued as the owner of S. S. Ronin carrying on business within the original jurisdiction of this Court through his agents at D-l, Clive Buildings at No. 10, Olive Street, Calcutta.'

11. The oral evidence for the plaintiff in this case is of the plaintiff himself, and for the defendant there is the evidence of one Sukamar Chandra Ghosh in charge of the Crew Department of Lionel Edwards Ltd. There is also an admitted brief of documents and correspondence marked Ex-A in this suit.

12. The issues raised by counsel for the defendants and accepted by the counsel for the plaintiff are set out below:


(1) Was the plaintiff employed by defendant 1, as a Chief Steward of S. S. 'Ronin'? If not, in what capacity was the plaintiff employed?

(2) What were the terms of the plaintiff's employment?

(3) Did the plaintiff sign off on 9-6-1941? Did the plaintiff render any service to the defendant 1, after 9-6-1941?

(4) Is the plaintiff entitled to any salary for any period subsequent to 9-6-1941?

(5) Was the plaintiff paid his salary in full on or about the 28-6-1941, by defendant 2, as agent of defendant 1?

(6) Did the defendant 2, as agent of defendant l, pay Rs. 7,142 to the plaintiff between the 2-6-1941, and 19-6-1943 on account of board, lodging and medical expenses?

(7) Is the suit barred by limitation against defendant 2 ?

(8) Has the plaintiff any cause of action against either of the two defendants?

(9) Is defendants 1 carrying on business through defendant 2 If not, has the Court jurisdiction to entertain this suit against defendant 1 ?

(10) To what reliefs, if any, is the plaintiff entitled ?

13. Issues Nos. 1 & 2: The questions raised in these two issues are related, and I propose to take them together.

14. The contract of service in this case is said to be contained in the ship's Articles. In the original plaint, it was not so pleaded. But in the amended paras. 3 (a) and 3 '(b) of the plaint, the plaintiff pleads that the contract is embodied in the ship's Articles in the Spanish language purporting to be an agreement between the Master of the ship and several persons including the plaintiff. The contract is pleaded to be for voyage commencing at New York on or about 27-2-1941 and thence to India and to end at the same port in the United States of America as might be determined by the Master. The Articles are pleaded to have been executed at the port of New York.

15. The evidence of the plaintiff in this suit has been in support of his pleading in the plaint. The plaintiff, says that being a Greek, he knows 'very little' Spanish in which language the contract was made. It is said to have been explained to him in Greek by the Chief Engineer of the ship who was himself a Greek. It is the plaintiff's evidence that the contract was for one voyage from New York to India and back to New York. In substance it was a voyage contract and not a time contract. It is also his evidence that ho signed on as the Chief Steward of the ship.

16. Neither the original nor even a copy of the Articles or contract has been produced by the plaintiff or by the defendants. The result, therefore, is that the Court is left with secondary evidence of the worst nature. The language of the contract being Spanish which the plaintiff understood 'very little,' his version of it in the evidence in this suit in the Court before mo is at best what remains in his mind of what was explained to him in Greek and in such memory as ho possesses of such explanation. His memory also is most imperfect and inadequate as I will presently show. The defendant, on the other hand, has led no oral evidence whatever on the nature and terms of the contract in this suit. The plea in the written statement is that this was a contract for a period of 6 months, subject to earlier termination in case plaintiff's services were not required, on four day's notice. But none of the defendants has come into the witness-box to support that case made in the written statement.

17. In this context it is required of this Court to find out the terms of the plaintiff's employment. I will assume that if the case put forward by defendant 1 in his written statement were right, evidence would have been produced to support it. As the defendant has not produced the contract or given evidence, I will draw 'the inference which the law allows me to draw that if that contract or evidence was produced it would not have supported the defendant's case specially when the defendant has led no evidence to show that such contract or testimony is. not available and, if so, why not available. His Lordship then discussed the evidence and proceeded:

18-26. On these issues I hold that the contract was one for 6 months from 27-2-1941 expiring on 27-8-1941 and the plaintiff was employed as assistant Steward but was also allowed to act as the Chief Steward for the periods 1 have mentioned, and I answer these issues accordingly.

27. Issue No. 3: The main defence on this issue is of the Pay Rolls. The words 'paid off crew' occurring in these Pay Rolls are said to prove that the plaintiff signed off on 9-6-1941. Defendant 2 also alleged in their letter of 17-10-1941, to the plaintiff's lawyer, Apcar, that the plaintiff signed off on 9-6-1941. It is said that there was no answer to that letter.

28. I am unable to accept this submission on behalf of the defence. 'Paying off' does not mean 'signing off' in Maritime or the Shipping Law. 'Signing off is a technical term meaning discharge of the crew from service. 'Paying off' moans what it says. In my judgment, the use of the words 'paying off' does not mean in this case that the plaintiff was discharged from service altogether.

29. The main reason why I consider that the plaintiff was not discharged from service on 9-6-1941, is that had it been so the defendants would not bo stating in the admitted document p. D. 14 : d. d. 9, dated 27-6-1941, appearing in the admitted brief of documents that us. 50 was paid to the plaintiff as 'advance against wages.' If the plaintiff had been discharged from service according to the pay rolls on 9-6-1941, no advance payment against wages again can be made. This reason also holds good as an answer against the contention of Lionel Edwards Ltd. in their letter of 17-10-1941, alleging that the plaintiff was 'not entitled to any wages after 9-6-1941, the date when he was signed off the vessel's articles.' If he was not entitled to any wages after 9-6-1941, then why show in the document of 27-6-1941, a payment of Rs. 50 to the plaintiff as advance against wages It is not that this was a loose description, because there are other documents in the admitted brief of correspondence showing payments for maintenance where the more careful expression is used 'advance of cash.'

30. I, therefore, hold that the plaintiff did not sign off the vessel's articles on 9-6-1941, in the sense of being discharged from service and I answer this part of the issue in the negative.

31. This will be the appropriate stage to dispose of another argument made at the Bar. Mr. Barwell has relied on certain sections of the Indian Merchant Shipping Act to show that the plaintiff could not be said to have signed off and been discharged on 9-6-1941. In particular he has relied on S. 8(1), s. 43 and s. 119 of the Statute. His submission is that the provisions of these sections in the Statute have not been complied with in this case and unless that is done there can be no valid discharge. He refers even to the practice in Calcutta for discharge of seamen before the Shipping Master or Assistant Master from the evidence of defendants' witness Sukumar Chandra Ghose who spoke on the practice hero in Calcutta, he not being there in the company's service at any relevant time in the suit but having joined much later.

32. In repelling this argument of Mr. Barwell, Mr. Das, counsel for the defendants, has made a two-fold answer; first, that the law in India in the Indian Merchant Shipping Act does not apply to this case at all and secondly, even if it does, its effect is not what Mr. Barwell contends.

33. I am not convinced that Mr. Das' first submission is right. In my opinion the Indian Merchant Shipping Act does apply to this case. I will examine the different reasons that have been put forward by counsel for defendants to show why that law should not be applied.

34. In the first instance, s. 4 of the Act is invoked to say that the Statute does not apply to the ship belonging to a foreign state and employed otherwise than for profit in the public service of that foreign state. There is no evidence that this ship in the suit is such a ship. It is true that it was a ship flying the flag of the Republic of Panama, a foreign state. But that is not enough. It has to be a ship belonging to the foreign state and also employed otherwise than for profit in the public service of that foreign state. If it was such a ship I have no doubt that the defendants who must have the special knowledge under s. 106, Evidence Act would have led evidence on the point. No such evidence has in fact been given.

But the question may be answered on. a short point. Defendant 1 is pleaded to be the owner of the ship, and that fact is admitted in correspondence and counsel for defendant 1. Therefore, the ship does not belong to the foreign state. A ship owned by an individual foreigner cannot be said to belong to the state of which the foreigner is a national or a citizen. Marginal note to the section makes it also clear, not as inducing the construction but as exemplifying the construction which I have arrived at, namely, it refers to public ships. I, therefore, hold that the defendant cannot claim the exemption under s. 4, Indian Merchant Shipping Act which I construe to be applicable only to public ships in the sense of belonging to the foreign state.

35. The second part of the argument of the counsel for defendant 1 on this aspect of the' case is that the Indian law cannot be applied because (1) the contract was executed at New York and (2) it was to be terminated according to the amended plaint at New York. It is on this allegation argued that the law of the New York State should apply to this contract or if the flag of the ship is the law to be applied, then it is the law of the Republic of Panama. In other words, this argument raises a problem in the 'conflict of laws between India, the State of New York and the republic of Panama and presents the traditional contest between lex loci contractus and lex loci solutionis.

36. Lex loci contractus is one of those unlucky notions in jurisprudence which have always blushed unseen. Lord Mansfield, the great builder of Law Merchant, is said to be responsible for the withering criticism of lex loci contractus. In Robson v. Bland, (1760) 2 Burr. 1077, Lord Mansfield pronouncing in favour of applying the English Law to a contract made in Prance observed:

'The parties had a view to the law of England. The law of the place (of contract) can never be the rule where transaction is entered into with an express view to the. law of another country.'

This doctrine of 'view to the law of another country' has considerably modified the application of the rule of lex loci contractus. Nor was Story, the great American jurist, tender to the doctrine of lex loci for he says :

'The general rule is in conformity to the presumed intention of the parties that the contract as to its validity, nature, obligation and interpretation is to be governed by the law of the place of performance.'

Dicey, the well-known English exponent of this-doctrine, notices this gradual emphasis on lex loci solutionis. In Edn. VI of his work on the Conflict of Laws at page 598 Dicey points out that in many cases the proper law of contract may with equal propriety be described as the lex loci solutionis or lex loci contractus but hastens to add that this however is not usually true of those commercial transactions which give rise to the most important and difficult questions of conflict of law.

37. In my judgment there can be no universal principle in the case of seamen's contracts by the test of which it can always be said that either lex loci contractus or lex loci solutionis must prevail in every case. I entirely dissent from any view that suggests such a universal principle of unfailing application to every case. The true approach, it appears to mo, should be guided by consideration of the entire contract in each individual case and examination of its terms and the decision as to which test-lex loci contractus or lex loci solutionis-will apply, should depend on the result of a proper interpretation of such contract. If the interpretation in a particular case be that the explicit or the tacit intention in a particular contract is that the place of contract should govern, then lex loci contractus should be the test to be applied; but if on the other hand, the interpretation be that such intention is that the place of performance should govern, then lex' loci solutionis should be the test to be applied.

To attempt to reduce the diversity of contracts to yield an invariable principle in maritime law is to invite confusion and injustice. For if it may be said in favour of lex loci that this test at any state has the advantage of providing a fixed rule at the time of making the contract so that the contracting parties know from the beginning where they stand and which law governs them, it can equally be said in favour of lex loci solutionis that without it a seaman wrongly landed in a foreign land with no means of repatriation or employment may be left without any effective remedy. Dr. Chesire in Edn. in of his work on Conflict of Laws at pp. 336-37 says that prima facie lex loci solutionis governs the incidents and mode of performance. It is also said that lex loci contractus governs the nature and interpretation of the obligation of the contract. The learned author at p. 337 says that the distinction between obligation and performance must not be blurred.

But nevertheless that distinction in some cases has been difficult to maintain and certainly has given rise to a good deal of legal uncertainty as a reference to the decision of the House of Lords in Mount Albert Borough Council v. Australian Temperance & General Mutual Life, Assurance Society Ltd., (1938) A. C. 224 and the arguments at the Bar made there will at once illustrate. My own view is that there can bo no hard and fast rule. The Court should treat each individual contract on its own merits and on its own terms and then find out what the intentions of parties were, and if they intended the place of contract or the place of performance to govern their relationship on any particular breach. If there is any doubt and if it appears that the point is new or unsettled, then the scales should be used in favour of applying lex fori. Dicey refers to this practical guide. He says in Edn. VI of his Conflict of Laws at p. 598:

'In this, as in other matters, there is traceable in the Courts of every country a more or less unconscious tendency to settle new or undecided point of law in accordance with lex fori.'

38. No words of greater weight were perhaps spoken than those by Bowen, L. J. in Jacobs v. Credit Lyonnasie, (1884) 12 Q. B. D. 589 :

'The stereotyped rules laid down by juridical writers cannot, therefore, be accepted as infallible canons of interpretation in these days when commercial transactions have altered in character and increased in complexity, and there can be no hard and fast rule by which to construe the multiform commercial agreements with which in modern times we have to deal.''

If that was true in 1884 when the learned Lord Justice uttered them, they are truer now in the mid-twentieth century.

39. To my mind the case before me is the most fitting case where lex fori should be applied to the claim for wages. Here in this case the entire articles or the contract is not available. The breach here is non-payment of seaman's wages. The entire breach arose m Calcutta and within the original jurisdiction of this High Court. The seaman is stranded here. Nothing is shown that any other foreign law whether of the State of New York or of the Republic of Panama excuses all such non-payment of wages. Foreign law has to be proved as a fact. The defendants have not proved it here in this case. Above all, there is that benevolent practice of the Court administering maritime law that the benefit of doubt should be given to the seanlan. The fact of his being a foreigner in this case does not deprive him of that benefit. In this context I will, therefore, apply the Indian law in determining the breach and in awarding him his wages, on the well-known principle adverted to by Dicey and to which I have just drawn attention.

40.But this is not the end of the difficulties of Mr. Barwell. The second branch of the argument on behalf of the defendants requires to be considered. That argument is that the breach of the statutory provisions of s. 43 and s. 119, Merchant Shipping Act does not make the termination of service or discharge void. On a careful consideration of this argument I have come to the conclusion that this argument must be upheld as sound. There is undoubtedly a breach of these specific provisions of the statute. Section 43, Merchant Shipping Act, requires that the master shall sign and give to a seaman discharged from his ship in India either on his discharge or on payment of his wages a certificate of his discharge in a form sanctioned by the Central Government specifying the period of his service and the time and place of his discharge.

No certificate was given in this case to the plaintiff. Therefore, there was a breach. But its breach is penalisable only under Subsection (2) of Section 43 of the Statute. That sub-section provides that if the master acts in contravention of this section, he shall for such offence be liable to a fine which may extend to Rs. 100. I am not prepared to read more penalty into this sub-section and hold that' a discharge in breach thereof is also to be void in law. The Statute does not say so. On the contrary it stipulates only a specific penalty of a fine for that particular breach. It does not avoid a discharge in breach of that provision.

Then again under Section 119, Merchant Shipping Act, no seaman or apprentice who was not shipped in India shall be discharged at any port in India without the previous sanction in writing of such officer as the Central Government may appoint in this behalf. Such sanction shall be given or withheld at the discretion of the officer so appointed but whenever it is withheld, the reasons for so withholding it shall be recorded by him in writing. Here again there is undoubtedly breach of this section. But for the same reason, as in the case of section. 43, that does not make the act of termination or discharge void.

In Sub-section (2) of section 119 the Statute provides a specific penalty. It says if any person discharges a seaman in wilful disobedience to the prohibition contained in Subsection (l) he shall be liable to imprisonment for a term which may extend to three months or to a fine which may extend to one thousand rupees or to both. Apart from that penalty I will not read any more penalty into the Statute. The Statute does not say that a discharge in breach of such statutory provision makes the discharge itself invalid.

41. On the second part of this issue, I have no doubt that the plaintiff did not render any service to the first defendant after 9th June 1941. Plaintiff's own evidence here is enough to decide the point. He does not claim to say that he rendered any service after,9th June 1941. (His Lordship considered the evidence and proceeded.)

42-46. Both parts of the third issue are, therefore answered in the negative.

47. Issue 4-This issue involves the determination of the question when the contract for service came to an end in this case.

48. There is no notice of discharge or dismissal to the plaintiff by any of the defendants. Even after the payment on 9th June 1941, there is the document to show that on 27th June 1941 a payment of Rs. 50 to the plaintiff was being made expressly as 'advance against wages.' Therefore even on 27th June 1941, on the defendants' own document the plaintiff continued to earn his wages. This is consistent with my findings that the contract was a time contract for six months from 27th February 1941, to 27th August 1941, because on that basis the contract of service was continuing on 27th June 1941, when Rs. 50 as advance against his wages was paid.

49. A seaman's contract of service has certain peculiarities which arise from the very nature of his employment and the exigencies inherent in the adventure of a voyage. Maritime jurisprudence all over the world has been careful by Statute, customs and usage to protect the rights of seamen in their agreements so that their naturally necessitous position, once on the seas, may not be exploited to their detriment. Such protection covers such varied range as prohibition of unlawful deduction from stipulated wages, expenses of maintenance and of passage home when the services are terminated abroad, medical expenses caused by illness and there is also the immemorial and benevolent practice of the Court administering maritime law that if there is a doubt about the seaman's contract the benefit of that doubt is always given to the seaman. These are law's benevolences to mollify the rigours of maritime adventure. Reference in this context may be made to Eoscoe's Admiralty Practice, Edn. 5, pages 210-15 and such cases as the Imma. colata Goncezione, (1884) 9 P. D. 37, the Nonpareil (1864) Br. and L. 355 and the protective provisions in our Indian Merchant Shipping Act.

50. Mr. Barwell has relied on these peculiarities of the incidents of a seaman's contract to advance the argument that even in a time con-1952 Cal./109 & 110 tract end of the time does not terminate the seaman's right to wages under the contract if the seaman finds himself ashore at a place away from his home or port of original embarkation of the ship. He contends that until repatriation to his home or despatch to the port of embarkation, the seaman continues to earn the wages.

51. I am unable to accept his submission on this point. In my, judgment this argument cannot be sustained on two fundamental reasons. The first is that the rights of a Seaman for maintenance and. repatriation are entirely distinct and separate rights from and are independent of the right to wages. No doubt the maritime law, as I have indicated, allows expenses for maintenance and passage home when the services are terminated abroad. But this suit is not a claim for such maintenance nor for passage home. It is a suit for wages only and for nothing else.

52. The second is that the peculiarities of a seaman's contract although may lead to certain consequences not usually associated with ordinary contracts, nevertheless the ordinary law of contract remains applicable where it is not excluded expressly or impliedly by the Maritime Law. In the House of Lords Lord Atkinson in Horlock v. Beal, (1916) 1 A. C. 486, expounds the law succinctly at pp. 495-96, in the following terms:

'Still his contract is a contract to. render his services for the achievement of the adventure or adventures upon which it is contemplated by both parties to his contract the ship is to embark; and though undoubtedly many provisions of the Merchant Shipping Act are framed to protect sailors from the result of their willing improvidence still there is no reason whatsoever why a rule of law applicable to contracts in general should not bo applied to the contract of seamen, where these latter are not expressly or impliedly excluded from its operation.'

I find myself in respectful agreement with this observation of the learned Lord.

53. Right to maintenance and right to passage home when contract terminates abroad do not, in my judgment, extend the scope of seamen's right to wages. That right to wages depends on the terms of the contract. If it is a voyage con-! tract, then he is entitled to his wages till the end! of the voyage because that is the loss to which he is put by untimely terminating his service. If it is a time contract, he is entitled to the wages till the expiry of the time stipulated in the con-' tract. But here again, end of time or end of voyage is not the only event which can terminate a seaman's right to wages. The ordinary law of contract of service must also operate in the case of a seaman in the sense that there must be continued physical capacity and willingness to render the very service which is the consideration and the basis for his employment.

I see nothing in the Indian Merchant Shipping Act or in Maritime Jurisprudence which excludes the operation of this basic notion of ordinary contract. This principle is also recognised in English Law as will be found on a reference to Eoscoe's Admiralty (5th Edition) pp. 213-14 and 30 Halsbury (Hailsham Edn.) Article 371 at p. 260. I have found as a fact on what I call overwhelming evidence, that the plaintiff was physically unfit to render any service and in fact neither rendered nor offered to render any service whatever.

54.On this basis, however, the plaintiff would not be entitled to any wages from the time when he can be regarded as physically incapable of rendering service. But then I find even after 9-6-1941, advance payment, of wages was actually made to him on 27-6-41, and again there is the fact that no formal notice of discharge or termination was given to the plaintiff. There is also the fact as found by me that the contract of service was a time contract for six months beginning from the 27-2-1941, and expiring on 27-8-1941. Giving due consideration to these various factors and putting the most beneficial construction in favour of the seaman according to the immemorial practice of the Court administering maritime law I must hold that the plaintiff is entitled to his wages subsequent to 9-6-1941, and for a period till 27-8-1941. I, therefore, answer this issue accordingly.

55. The result of this finding is that the plaintiff is entitled to his wages for 3 months 10/11 days at 80 dollars a month-which wil come to 214 dollars altogether. Both the counsel for the plaintiff and the defendants agree for the purpose of calculating the rupee equivalent of the same that one dollar may be taken to be worth Es. 5 as being the agreed exchange ratio. In other words the plaintiff is entitled to a sum of Rs. 1,070 in Indian currency. [His Lordship then considered the evidence on issue no. 5 and answered it in negative. His Lordship then proceeded.

56-58. Issue No. 6.'-This issue relates to the money paid by the defendants for boarding, lodging and medical expenses to the plaintiff. His Lordship after considering the evidence proceeded.

59. I, therefore, hold that approximately the sum of Rs. 7l42 had been paid on account of boarding, lodging and medical expenses of the plaintiff.

60. Issue No. 7-I have already answered this issue and have held that this suit is barred by limitation against the second defendant. On the finding that it is a time contract and the contract expired on 27-8-1941, the suit against the second defendant would in any event be barred in 3 years' time thereafter. No suit was actually on record against the second defendant until 30-9-1946, when the second defendant was added as a defendant to the suit. I therefore, hold that this suit is barred by limitation against the second defendant and answer this issue in the affirmative.

61. Issue No. 8.-As against the second defendant I have already held that the plaintiff has no cause of action. This issue, therefore, is answered in the negative only in so far as the second defendant is concerned.

62. On the basis of the finding to which I have arrived I hold that the plaintiff has a cause of action against the first defendant. That cause of action as pleaded in the plaint is non-payment of wages under the contract of service. I therefore, answer this issue in the affirmative so far as the first defendant is concerned.

63. Issue No. 9.-This issue raises the question of jurisdiction so far as the first defendant, is concerned.

64. The jurisdiction is based on the allegation made in the cause title of the plaint. That allegation is

'Namazie owner of a steamship called S. S. Ronin, carrying on business within the aforesaid jurisdiction, through his agents Lionel Edwards Ltd. at D-l Gilve Building being premises No. 10 Clive St. in the town of Calcutta aforesaid, also within the aforesaid jurisdiction.'

For the purpose of deciding the question of jurisdiction it is also relevant to refer to the fact that the non-payment of wages which is pleaded to be the cause of action arises within the jurisdiction of this Court but it is not expressly pleaded that such cause- of action arises within the jurisdiction of this Court. The evidence, however, proves that it did so arise.

65. I will, however, deal with the question of jurisdiction on the basis whether the first defendant can be said to be 'carrying on business' through his agents, the second defendant, who is admittedly within the jurisdiction of this Court.

66. Clause 12 of the Letters Patent of this High Court uses the words :

'If the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain within such limits.'

It is settled law that the defendant may carry on business either personally or through his agent and even if he does carry on business through his agent, he can be sued within the original jurisdiction of this Court. It is not necessary in that case to 'personally work' for gain. The question of jurisdiction in this case turns on the meaning to be given to the words 'carry on business' in Clause 12 of the Letters Patent. A large number of authorities have been cited at the bar. It is not necessary to examine each and every one of them. As I read such authorities, the conclusion appears to be this: It is always a question of fact whether a person can be said to be carrying on business or not within the meaning of Clause 12 of the Letters Patent. In fact, Lord Morris in Gosivami Shri Girdhariji v. Shri Goberdhanlalji, 21 ind. App. 13 (P. C.) at p. 15 observes:

'The phrase 'carry on business' as has been often said, is a very elastic one, and is almost incapable of definition. The tribunal must in each case look to the particular circumstances.'

Illustrative cases such as those reported in Monindra Chandra v. Ghandy Char an, 24 Cal. W. N. 582 and Annamalai Ghetty v. Murugasa Chetty, 30 Ind. App. 220 (P. C.) have been cited at the bar. The first one related to managing agency agreement with respect to colliery between three different parties and have really little or no analogy whatever with the facts that I have before me. The case in 30 Ind. App. 220 (P. C.) also has little or no bearing on the facts as an illustration. The nearest case is Khimji Chaturbhuj v. Sir Charles Forbes Baronet, 8 Bom. H. C. R. 102. In that case it is held that where an English firm upon the usual terms employs a Bombay firm to act as the English firm's commission agents in Bombay, such English firm does not thereby render itself liable to be sued in the High Court of Bombay as it does not carry on business within the local jurisdiction of such High Court within the meaning of the clause of the Letters Patent.

67. Now, as I have said, cases are of very little assistance in deciding this point which always is a question of fact. The point for decision in this case before mo is whether the first defendant on the facts as disclosed in the correspondence, documents and evidence can be said to be carrying on business within the jurisdiction through his agents, defendant 2. For that purpose it is necessary, in my view, first to examine the pleadings and, secondly, to examine the documents and the evidence.

68. Taking the pleadings first, I have already quoted the pleading in the cause title of the plaint. The written statement of defendant 1 in para. 9 denies that the defendant was a local agent of the plaintiff or that the defendant carried on business within the jurisdiction as alleged or at all. But that is a formal denial. Of more substance is the statement of certain facts which defendant 1 makes in para. 2 of his written statement. According to defendant 1, defendant 2 was in fact his agent in Calcutta prior to December 1941, for the purpose of looking after his ships. Now, looking after a ship will certainly mean and include looking after the crew and the sailors of the ship and would, therefore, include questions of payment of wages to the sailors or the crew.

But then defendant 1 says in the written statement that defendant 2 ceased after December 1941 to be such agent or to have any dealings with the defendant. Then again it is pleaded that from March 1942 defendant 2 attended to the vessels of defendant 1. But that is said to be in pursuance of arrangements or requests made by the defendant's London Managers. Whether it was at the request of the London Managers of the defendant or not, it is an admission that defendant 2 from March 1942, did attend defendant l's vessels as in the capacity of an agent. The work of the agency appears without any doubt from the facts stated in that paragraph of the written statement. In fact, this is the list of the works, on the admission in the written statement, that defendant 2 did for defendant 1:

(1) Payment of plaintiff's salary alleged to be in full on 28-6-1941:

(2) Payment of repatriation expenses, maintenance etc. from 2-6-1941 till 19-1-1943, and there it is said that a sum of Rs. 7,142/- was in fact paid by defendant 2 for plaintiff's board, lodging and medical expenses.

69. On these facts as pleaded by defendant 1 himself, I should have had no hesitation in holding that defendant 1 carried on business through his agent, defendant 2. It is a part of the business. of a ship-owner to arrange for the payment of the sailors of the ship and to arrange for their repatriation or maintenance and in so far as defendant 2 did so for defendant 1, it could only have done so as defendant l's agent. If defendant 2 was carrying on business and agent of defendant 1 to pay the plaintiff's salary on 28-6-1941, it is absurd, to suggest that it was not so when it came to payment of plaintiff's balance of salary under the very same contract.

I do not see how on these facts and on defendant l's own admissions in para. 2 of his written statement it can be said or remotely argued that defendant 1 did not carry on business. A question might have arisen on the basis of distinction between the general agents and particular agents because that authority of the Khimji Ghaturbhuj v. Sir Charles Forbes Baronet, 8 Bom. H. C. R. 102 to which I have drawn attention some kind of a distinction is attempted to be made that a general agent for different companies could not be said to carry on business for such companies, but that will not apply in the case of a particular agent.

But the point is that there is here, in fact, no evidence led by any of the defendants to show whether defendant 1 or defendant 2 did or did not carry on business and even if they did in what circumstances they did. As I read and construe the pleadings in para. 2 of his written statement, I can only come to this conclusion that agency and carrying on business are admitted in spite of the formal denial which is put in para 9 of the written statement after the pleas in para. 2.

70. But quite apart from the pleadings, the correspondence and the documents are, in my view, an eloquent answer to this question. In the letter of 17-10-1941, to which I have already drawn reference and which is the reply of defendant 2 to the plaintiff's lawyer, Apear, actually the words used are 'We as Agents.' The documents exchanged between the police and Messrs. Lionell Edwards Ltd., indicate that it was defendant 2 who was acting as the agent of the first in giving undertaking to the police to repatriate the plaintiff from Calcutta without any further delay.

In fact, in the letter of 9-6-1941 to the police it is defendant 2 which gives the guarantee for the repatriation expenses and where defendant 1 undertook to maintain the plaintiff. It is also in evidence that it was defendant 2 which had been making payments to the plaintiff for his maintenance and also part of plaintiff's wages. The documents appearing in the admitted brief of documents marked exa bear out such payments.

71. On the basis of the facts, therefore, both on the pleadings as well as on the documents, I hold that defendant 1 in this case did carry on business within the meaning of Clause 12 of the Letters Patent. Mr. Das has submitted before me that it must be shown under Clause 12 of the Letters Patent that it was 'at the time of the commencement of the suit' that the defendant must be shown to be carrying on business. Even that, I am afraid, does not help Mr. Das at all. On his own client's pleading in the written statement, he was actually making payment even on 19-1-1943, and this suit was instituted on 7-1-1943. There are other documents and relevant records in the admitted brief of documents which leave no room for doubt in my mind that defendant 1 in this case did carry on business at the time of the institution of the suit through his agent Lionel Edwards Ltd.

72. Mr. Das also raised a question as a second string to his bow on this point that defendant 1 was a foreigner and, therefore, this Court has no jurisdiction. That is, however, not the issue that was raised. I have set out Issue 9 above and the issue of jurisdiction was raised only on the question of fact as to whether defendant 1 'carried on business' through defendant 2. In support of his proposition he referred to the decision in Sirdhar Gurdayal Singh v. The Rajah of Faridkote, 21 Ind. App. 171 (P. C.), where the principle laid down is that no territorial legislation can give jurisdiction which any foreign Court ought to recognize against absent foreigners who owe no allegiance or obedience to the power which so legislates, and the observations made by Earl of Selborne at p. 185.

The other decision on which he relied in Kessowji Damodar v. Khimji Jairam, 12 Bom. 507 where Scott, J. construing Clause 12 of the Letters Patent of the Bombay High Court in similar terms says that the scope and object of Clause 12 of the Letters Patent was to define the jurisdiction of the Municipal Courts of India and it must, therefore, be read in the light of the general principles of municipal jurisdiction, save so far as it expressly derogates from those general principles and that all legislation is prima facie territorial. This decision, however, of Scott, J. was not approved in Girdhar Damodar v. Kassigar Hiragar, 17 Bom. 662.

73. It is, however, unnecessary to decide this question. That is because the question does not arise. The fact whether defendant 1 is a foreigner or not has not been pleaded as a fact and there is no evidence before me to conclude that he is a foreigner.

74. I, therefore, hold that this Court has jurisdiction to entertain this suit against defendant 1.

75. Issue No. 10. - It follows from the findings that I have arrived at in the different issues that the plaintiff shall have judgment for the sum of Rs. 1070/-. The judgment shall carry interest at 6% per annum until payment, and there will be interim interest also at the same rate.

76. I make no special order as, to costs. If the plaintiff had not been a pauper the suit against defendant 2 would have been dismissed with costs and decreed as against defendant 1 with costs. I am of the view that the justice of this case will be met by making no order as to costs.

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