This lawsuit was brought under the Admiralty Jurisdiction of High Courts Ordinance 1980 (the Ordinance). The plaintiff claimed USD 874,161 from the third defendant, with a request for directions that the LPG cargo on the first defendant vessel not be discharged until adequate security for the plaintiff's claim was furnished to the satisfaction of the Nazir of this Court. The plaintiff was a UK company engaged in the LPG business. The first defendant vessel carried the cargo of LPG to Port Qasim. The second defendant was the shipowner and the third defendant was the charterer of the vessel. The plaintiff entered into a contract on 2 June 2017 with the third defendant to purchase 7,000-8,200 mt of LPG to ship on a CFR basis to Aden, Yemen, within 30-35 days. The plaintiff made an advance payment of USD 874, 161 to the third defendant. The outstanding amount was to be paid upon issuance of a Notice of Readiness (NOR) at the discharge port. The plaintiffs found out that instead of arranging for the cargo to be shipped to Aden, Yemen, the third defendant planned to carry it to a Pakistani port and sell it.

The plaintiff argued that under 3(2)(h) of the Ordinance, the phrase 'any agreement' was wide enough to include even a contract of carriage which was not between the parties to the suit; that is to say, all that was required was that the claim should arise from a contract of carriage. In this case, the Everrich 6 was the particular ship under a charterparty between the second and third defendants, and examination of the charterparty would show that the plaintiff's cargo was to be carried to Yemen. The plaintiff's claim arose from the breach of this contract of carriage. The plaintiff further argued that this was not a suit in rem at all, but rather a suit in personam for the recovery of the deposit paid to the third defendant. The plaintiffs had not sought the arrest of the vessel. Further, the plaintiff was entitled to an injunction under s 94, CPC, which was similar to a Mareva injunction, and hence the restraint of the vessel from sailing from Karachi was fully within the ambit of the law.

The first and second defendants argued that the plaintiff's suit did not fall under the Ordinance. Reliance on s 3(2)(h) of the Ordinance by the plaintiff was irrelevant. The suit did not disclose any cause of action against the first or second defendants, and should therefore be struck off. The interim order, dated 31 August 2017, amounted to the 'arrest' of the vessel, which relief could only be availed by the plaintiff in an action in rem, and not in an action in personam. Section 3(2)(h) of the Ordinance clearly stated that the claim should arise out of an agreement relating to the carriage of goods. The plaintiff had not produced or even alleged that any agreement, eg a bill of lading, was issued in favour of the plaintiff, or that the first or second defendants had breached any of their obligations under a bill of lading. The first bill of lading was issued naming the third defendant (the charterer) as the consignee. There was no agreement for carriage between the plaintiff and the first and second defendants.

The third and fifth defendants argued that the plaintiff could not possibly have any in personam claim against the defendants.

Held: The plaintiff's interlocutory applications for injunctions are dismissed.

In essence, this is a dispute between the plaintiff and the third defendant regarding an alleged breach of a contract for sale and purchase of LPG, signed on 2 June 2017. The plaintiff filed this suit under the admiralty jurisdiction, and pleaded that the first defendant vessel was under the charter of the third defendant; thus, the lawsuit fell under s 3(2)(h) of the Ordinance. The plaintiff has now conceded that it has not set up this suit for an action in rem, but rather for an action in personam, which is permissible under s 4(1) of the Ordinance. It is further alleged that the plaintiff has not pursued the arrest of the vessel. The plaintiff has filed two interlocutory applications, with the prayer that the first-third defendants be restrained from discharging the cargo on the vessel, and that the vessel itself be restrained from leaving the territorial waters of Pakistan until there is a decision in this suit, or upon furnishing adequate security for plaintiff's claim.

Although the nomenclature of the application is not that of ship arrest, making a request for restraining the vessel not to sail is analogous and consonant to the virtual effect of its arrest, for which the plaintiff has strived in this case. Under s 3 of the Ordinance, this Court has been conferred jurisdiction to determine the relevant maritime cases, questions or claims. It is clear from the letter of the law that the admiralty jurisdiction of the High Court may also be invoked by an action in personam, but this is subject to the provisions of s 5. Section 5 deals with the jurisdiction in personam of courts in collision and other similar cases.

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.

The plaintiff cannot claim that the vessel's presence within the territorial waters of Pakistan, or the contractual obligations arising between the parties in respect of the contract in question, can be strictly construed within the parameters of s 3(2)(h) of the Ordinance. The dominance and peripheries of this provision are not unbridled and emancipated, so that any person may bring in any claim against the other. No doubt the words 'any agreement' have to be given a wide meaning, but this cannot be stretched or overextended in every case. Rather, it is contingent and dependent upon the individual circumstances of each case to bring the case within the jurisdiction. The plaintiff has failed to establish any probable and persuasive right to grant any injunctive order under O XXXIX, rr 1 and 2, read with s 94 CPC, in the nature of a Mareva injunction, nor is the plaintiff entitled to the relief of attachment of cargo. Ship arrest may come to the rescue in an urgent situation to cause the arrest of a vessel moored/anchored within the territorial waters, with or without the condition of furnishing surety, for further things to be decided thereafter; whereas in the case of an injunction, some indispensable components and dynamics are to be satisfied, such as establishing a prima facie case, the balance of convenience, and irreparable injury.