COMMISSIONERS FOR PORT OF CALCUTTA Vs. BHUBANESWAR PRASAD

JUDGEMENT

(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 26 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 3 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 19 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/s. 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/s. 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.