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Commissioners for Port of Calcutta Vs. Bhubaneswar Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal111
AppellantCommissioners for Port of Calcutta
RespondentBhubaneswar Prasad and anr.
Cases ReferredWeeks v. Rose
Excerpt:
- .....section, this part shall, unless there is anything repugnant in the subject or context, apply to british ships and to the owners, masters and crew thereof as follows : . . . . (c). the provisions relating to the rights of seamen in respect of wages, to the return of distressed seamen, to the provision and health of seamen, to the power of seamen to make complaints, to the protection of seamen from imposition and to discipline shall apply to seagoing ships registered in british india, while such ships are in british india.6. if these provisions should apply to the case of opposite party no. 2, then, since the tugs in question are not sea-going ships, section 62 which is a provision relating to the rights of seamen in respect of wages would not apply. the indian merchant shipping act.....
Judgment:
ORDER

S.K. Ghose, J.

1. The petitioners in this Rule are the Commissioners for the Port of Calcutta and the Rule relates to an application under Section 25, Provincial Small Cause Court Act. The circumstances are these : Opposite party No. 1 obtained an ex parte decree against opposite party No. 2 in the Court of Small Causes at Sealdah for Rs. 70-9-0. On 26th September 1936 the decree was put into execution in the said Court and the decree-holder prayed for recovery by attachment of the wages of the judgment-debtor he being a Mistri on S.S. Thistle at Dock No. 11 of the Calcutta Port Commissioners and drawing a salary of Rs. 75 a month. In accordance with the prayer, the salary of opposite party no. 2 was attached and the attachment was notified by the Court to the petitioners under whom the opposite party no. 2 was then employed as a driver on a tug vessel called the Pilot. It is stated by the petitioners that both s.s. Thistle and the vessel Pilot are used in navigation and propelled by steam and not exclusively by oars. The petitioners informed the Court that the wages of opposite party no. 2 could not be attached as he was a seaman under the Indian Merchant Shipping Act (Act 21 of 1923 I. C.) and also referred to Section 2 (8) and Section 62 (1) (a) of the said Act, in the correspondence that followed. Opposite party no. 2 filed a petition in the execution case stating that he is a seaman under Section 2 (8), Merchant Shipping Act, and as such his wages are not attachable. On 3rd April 1937, the Court rejected the petition of the opposite party no. 2 holding that his salary is not exempted from attachment. Thereafter by a letter dated 19th April 1937 the said Court directed the petitioners to send the attached sum to the Court. Against that direction, the present Rule is obtained.

2. It is stated in the application that the question as to whether the said opposite party no. 2 is a seaman and whether the wages of a seaman are attachable under the said Indian Merchant Shipping Act is of great importance to the petitioners and an authoritative decision would be to the benefit of all parties concerned. The petitioners also stated that having regard to the provisions of Section 62 (d), Merchant Shipping Act, the order of attachment and the direction to pay into Court have put the petitioners in a precarious and anomalous position. For the opposite party, decree-holder, it is contended in this Court that the petitioners have no locus standi to make this application as they were no parties to the decree. But the petitioners have already received a direction from the lower Court in, accordance with the provisions of Order 21, Rule 48, Civil P.C. and under Sub-rule (3), the petitioners would be held liable for any sum paid in contravention of the direction. Therefore it cannot be said that the petitioners have no grievance and it must be held that they have locus standi to make the application. The real point is whether under Section 62 (1) (a) and (d) the wages of opposite party no. 2 are liable to attachment. It is contended for the petitioners that opposite party no. 2 is a seaman as defined in Section 2 (8) of the Act. The question is whether the tug Pilot can answer to the word ship' as used in this definition. Both words 'ship' and 'vessel' are defined in the General Clauses Act and this definition corresponds to the definition of those words occurring in the English Merchant Shipping Act of 1894. The question seems to turn upon whether the tug vessels can be said to be used for the purpose of navigation. It is stated in the counter-affidavit which is not challenged that the tug vessels Thistle and Pilot are not steamships nor do they ever go to sea; they only tow ships within the Kidderpore Dockyard by means of a rope whenever any ship enters the said port either for repairs or for loading and unloading. It has been contended by the learned advocate for opposite party no. 1 that to satisfy the essentials of navigation, the ship must be seagoing and must carry merchandise. I have been taken through the definition of the word navigation in Murray's Oxford Dictionary and Webster's Dictionary. All that I need say here is that the word is rather loosely used to mean a number of things. More sure guidance is afforded by two oases to which my attention has been drawn. The first is the case in The Queen v. Mayor of Southport, Morris (1893) 1 Q B D 359. In that case, a launch was used for the purpose of carrying passengers on pleasure trips round an artificial lake half a mile long by 180 yards wide, without having any duplicate of a Board of Trade Certificate put up in her. It was held that the launch, while so used on a sheet of water of that size, was not a vessel used in navigation. Lord Coleridge C. J. remarked:

Navigation is a term which in common par-lance would never be used in connexion with a sheet of water half a mile long. The Attorney-General has asked where we are to draw the line. The answer is that it is not necessary to draw it at any precise point. It is enough for us to say-that the present case is on the right side of any reasonable line that could be drawn.

3. This decision was carefully considered and distinguished in Weeks v. Rose (1913) 2 K B 229. In that case a motor boat was used for carrying more than 12 passengers from Exeter along the river Exe., for half a mile and for a further mile along a canal to the first lock, returning thence to Exeter. Below that look, the canal continued for two miles, through other locks, to the estuary of the river, and it was used by seagoing ships for the purpose of going to and from Exeter. It was held that the motor boat was a vessel used in navigation. Channell J. pointed out that in the previous case there the judgment proceeded entirely upon the view of the Court as to the place where the alleged navigation was. In the second case the length of the water on which the launches plied was only about a mile and a half and the canal was in a sense an enclosed piece of water. But the learned Judge went on to remark:

There is a lock which communicates with a further out which goes on to another lock, and then there is a sea look, through which vessels can go out to sea or can come in from the sea... There is navigation there, and it is a place for navigation and being a place for navigation it is not the less navigation by this launch than by any other craft; the launch is navigating.

4. Lord Coleridge J. remarked:

If ships coming to and from the sea were clearly navigating these waters, the fact that these particular vessels in question did not proceed to sea does not prevent these waters being navigated by them as they would be by ships going to and from the sea.

5. In the present case, having regard to the conditions of the river Ganges, I consider that the decision in Weeks v. Rose (1913) 2 K B 229 cited above is applicable. In that view the two tugs are vessels used in navigation and therefore they come under the definition of ship. The next point is whether the provisions of Section 5(2)(c) are applicable. The relevant part of Sub-section 2 runs as follows:

Save as hereinbefore provided in this section, this part shall, unless there is anything repugnant in the subject or context, apply to British ships and to the owners, masters and crew thereof as follows : . . . . (c). The provisions relating to the rights of seamen in respect of wages, to the return of distressed seamen, to the provision and health of seamen, to the power of seamen to make complaints, to the protection of seamen from imposition and to discipline shall apply to seagoing ships registered in British India, while such ships are in British India.

6. If these provisions should apply to the case of opposite party no. 2, then, since the tugs in question are not sea-going ships, Section 62 which is a provision relating to the rights of seamen in respect of wages would not apply. The Indian Merchant Shipping Act comes very rarely before this Court and so I gave to the learned advocates time to consider the position. My attention has been drawn to the pro-visions of the English Merchant Shipping Act of 1894. By Rule 91 of that Act, Part 1 of that Act shall apply to the whole of His Majesty's Dominions and to all places where His Majesty has jurisdiction. In Part 2 of the Act there is Section 163 which corresponds to the provisions of Section 62 of the Indian Act except that the words 'to the sea service' occur after the words 'seamen or apprentice' in the opening clause of Sub-section (1) of S.163 in the English Act. By Section 261 (d) of the English Act the provisions of Part 2 relating to the rights of seamen in respect of wages, etc. do not apply where the ship is within the jurisdiction of the Government of the British possession in which the ship is registered. Section 264 provides for the application of Part 2 by the Legislature of the British possession. It is pointed out by the learned advocate for the petitioners that the necessary provisions are supplied by Section 5 of the Indian Act. The two tugs in question in this case answer to the description of British ships as defined in Section 1 (d) read with Section 4 (d) of the English Act. It is also pointed out that the provisions of Section 5 (2) of the Indian Act do not exhaust the provisions of Part 2 of that Act. Therefore it is contended that the application of the section is not meant to be restrictive, that is to say that besides British ships mentioned in Sub-section (2), other ships may also be hit by the provisions of Part 2, But once it is found that the two tugs in question are British ships, then they must be governed by the provisions of Section 5 (2) (c) of the Indian Act in so far as the present matter is concerned and Part 2 will not apply unless they are sea-going ships registered in British India. It is not disputed that the two tugs are not sea going ships though registered in British India. That being so, the provisions relating to the rights of seamen in respect of wages do not apply to the case of the judgment-debtor opposite party no, 2. The direction of the Small Cause Court relating to the attachment of the wages must be complied with and the rule will stand discharged. There will be no order as to costs.


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