HAJI MUHAMMAD SURAJ MIA AND ANOTHER Versus OWNERS AND PARTIES INTERESTED IN THE VESSEL M. L. MADINA, THE OWNER BEING HAJI ABUL HAS HEM

1. The plaintiff No. 1 Haji Mohd. Suruj Miah was the owner of vessel M. L. Jalamoni and was carrying on his business of inland Water Transport under the name and style of Pioneer Navigation Co. Plaintiff No. 2 is the New Jubilee Insurance Co. Ltd., and was the insurer of the said vessel M. L. Jalamoni and became an owner of the said vessel by virtue of a note of abandonment by plaintiff No. 1 and the Industrial Development Bank of Pakistan, the mortgagee of the said vessel on 20‑3‑1965 when inconsequent of the full settlement of the loss incurred by plaintiff No. 1. Plaintiff No. 2 is alleged to have given a sum of Rs. 32,000 to plaintiff No. 1. The defendant Haji Abul Hashem is the owner of the vessel M. L. Madina which plaintiff alleged collided with the vessel Jalamoni and sank the vessel Jalamoni which became a total loss and caused the death of 8 persons who were aboard the vessel Jalamoni. The salvage value subsequently recovered with regard to Jalamoni was only Rs. 5,000. The defendant carries on his business of inland water transport under the name and style of Madina Navigation Company. The case of the plaintiff is that on 29‑4‑1964 at or about 7 p. m. M. L. Jalamoni proceeded above 400 yards from Chandpur steamer ghat and as it was entering the river Meghna and turning northwards for that purpose, the vessel M. L. Madina bearing the registration No. M. 1634 bore down towards M. L. Jalamoni at great speed and while the vessel M. L. Jalamoni came to stand‑ still and was almost stationary vessel M. L. Madina rushed headlong on the M. L. Jalamoni on the left side of the forward part of M. L. Jalamoni nearly cutting it into two, as a result of which M. L. Jalamoni capsized. The vessel M. L. Madina thereupon left the place of occurrence at great speed and did not even remain to give assistance to the drowning passengers of M. L. Jalamoni and thereafter it is alleged that the Serang and entire crew of M. L. Madina save and except one Abdul Majid Khalasi, who was arrested, abandoned the vessel at Chandpur steamer ghat and absconded. It was alleged that the collision was caused solely by rash and negligent navigation of M. L. Madina by the defendant and/or his servants and/or his agents and/or persons in charge of the said vessel at the material time. It is alleged in the plaint that a preliminary enquiry was held on the collision by the Special Officer Marine Accidents, Government of East Pakistan, and the said officer had submitted a report to the effect that the officers and Serang of M. L. Madina were wholly responsible for the sinking of M. L. Jalamoni and the death of 8 persons from among those on board, the sunken vessel.

2. The defendant Haji Abul Hashem has challenged the juris diction of this Court stating that it does not extend to the Inland Water Ways of the rivers of the province and has pleaded some other pleas in Bar. The defendants have further denied the statement of facts made in the plaint and has stated that the defendant's vessel M. L. Madina was in the river Meghna in the course of journey from Narayanganj to Chandpur with about 130 passengers. At about 19.00 hours the motor launch M. L. Madina arrived near the bend (Railway "Tack" at the extremity of Railway Lines towards river Meghna) of Chandpur Dakatia river mouth. While M. L. Madina was then in river Meghna about 125 or 150 feet from the corner of the bend and 50/60 feet from the shore and had not entered the Dakatia river negotiating the bend at the left side, she stopped and waited and gave prolonged horn warning the vessels inside the Dakatia river as to whether any vessels inside the Dakatia river was coming out or not. Just a moment after, the Sarang of the M. L. Madina heard three short blasts of a Mail ship named 'Ostrich' which would be going to Goalanda belonging to Pakistan River Steamers Ltd. and which was coming out of the river Dakatia on her backward motion. The defendant further stated that when the said Mail Steamer of P. R. S. came out of the Dakatia river and was turning north putting her head position towards the head of M. L. Madina and her (mail steamer's) bright search light fell upon the head of M. L. Madina covering the entire launch and the aforesaid bend there. The plaintiff's vessel suddenly appeared and came out of the river Dakatia without any whistle or horn although the Mail Steamer had not cleared the course. It is further alleged that M. L. Jalamoni was turning her course to her right hand very quickly and the strong current of the flow tide also gave M. L. Jalamoni a very high speed and thus the said M. L. Jalamoni came close and almost fell on the head of M. L. Madina. The Serang of M. L. Madina at once drove the engine backward in full in order to prevent the collision but Jalamoni fell upon the head of the launch of the defendant with speed within a second and caused the accident and collision. The defendants launch suffered small damage. It is alleged by the defendant that M. L. Jalamoni caused the collision and suffered damage at the hand of their own crews and those aboard. It was further alleged that the vessel Jalamoni was not river worthy and it was a condemned vessel and unfit for service. The said vessels Jalamoni also caused accidents before, due to her own causes and negligence of those on board. The vessel Jalamoni was not manned by any Serang or competent crews and it lacked proper and adequate lights or reversing or stopping gears or warning devices. The vessel Jalamoni was in defective condition. This defendant denied that the collision and damage mentioned in the plaint were caused or contributed by any negligence or carelessness on the part of himself or his servants as alleged or at all.

3. The plaint was admitted, written statement was accepted and the following issues were framed:

(1) Has this Court jurisdiction to hear this suit?

(2) Is the suit maintainable?

(3) Is the suit barred by limitation?

(4) Is the suit bad for non‑joinder and misjoinder of parties?

(5) Do the plaintiffs have any cause of action?

(6) Was the sinking of M. L. Jalamoni caused by negligence and/or breach of statutory duty committed by the defendant or any of his servants or agents or by any person in charge of M. L. Madina ?

(7) Is the vessel M. L. Madina subject to a damage lien in favour of the plaintiffs?

(8) Is the plaintiff entitled to compensation?

(9) Is the plaintiff entitled to the reliefs claimed?

4. Issue No. 1.‑This issue was decided by me on 15th August 1966. For the reasons stated in my said order I have held A that this Court has jurisdiction to entertain the suit. Thereafter the suit was heard and both patties adduced oral and documen tary evidence.

5. P. W. 1 is one Abul Hossain Dhali. He claims to be a passenger in the motor launch Jalamoni on the date of the accident that is on 29‑4‑1964. He says that there were about 100 or 150 passengers in the launch and he was travelling from Puran Bazar to Chandpur and was going to Narayanganj. The launch started from Chandpur at 6‑30 or 6‑45 p.m. He says that after the launch was started it was going towards the west along the river and when it had passed a bend at the mouth of the river Dakatia and turned towards the north the vessel M. L. Madina came and dashed towards it. He came and testified that M. L. Madina struck M. L. Jalamoni on the left side and that Jalamoni was proceeding at medium speed. He has also said that M. L. Madina had no light. Madina did not give any horns and it was running at a very high speed. He further said that Madina after hitting Jalamoni proceeded along the bend and Jalamoni sank immediately. He swam to the other side of the river which was at a distance of about 100 or 150 cubits and that 6/7 persons died in the incident. In cross‑examination he said that after finishing three rakats of faraj prayer he turned salam and then he saw striking of the launch Jalamoni by Madina. As regards the speed he, however, could not give in cross‑examination what he meant by medium speed and he answered the question saying that "what I saw I saw". He has admitted in cross‑examination that there was a Goalundo steamer which was going at that time and that the launch Jalamoni was following the steamer from Dakatia mouth and that the Goalundo steamer was helping by showing its light.

6. P. W. 2 Md. Ismail Gazi has deposed that he was going to Narayanganj by the launch Jalamoni at about 6‑30 or 6‑45 p.m. on 29‑4‑64. There were about 125/150 passengers in the launch and after coming out from Dakatia river the launch entered into the Meghna river and went towards the north. When it turned towards north the collision took place. At that time this witness was saying his prayer along with the others on the roof. Jalamoni was struck about 1/3rd away from the front on the left side. Jalamoni was proceeding according to this witness slowly and it had light and it had sounded its whistle when it had taken the bend, that M. L. Madina was proceeding at a very high speed and it had no light in its front nor did it give any signal. He said normally the vessel should enter the river Dakatia by the southern side of the river. After the launch Jalamoni was hit by Madina there was a tumult and the passengers jumped down into the river and swam away towards the north side but Madina went away towards the east to the ghat, rendering no help to the people who fell into the water. He further stated that some people got killed at the time of the collision. This witness has stated that he gave evidence in the preli minary enquiry. In cross‑examination he stated that it did not start from Puran bazar ghat but it started from station ghat. He stated also that the Goalundo steamer Ostrich had left the ghat before the launch had started and it helped them by putting on its search light. He has denied the suggestion that unless one came up to the river Maghna one could not see anything beyond the bend. He has sated that at the time of the collision he got injury on his left leg and he was taken to the hospital and from there he was taken to the P. S. for deposing before the Magistrate. He denied that he was deposing at the instance of Suruj Mia, owner of the launch. P. W. 3 is captain S. A. Baset. He is not an eye‑witness but he has been examined by the plaintiff as an expert. He obtained his Master certificate from United Kingdom, and at the relevant time he was Conservancy Pilot with I. W. T. A. He has testified that he was familiar with the river near about Chandpur. He has produced a map which was marked Exh. 1 with objection by the defendants. This map has been prepared by the I. W. T. A. and it is in accordance with the Government survey map and it shows the channels of the rivers and I accept it as admissible in evidence. He has stated that he was the Officer‑in‑charge of the launch route when the incident took place. He has shown the red mark in the map which the vessels ought to follow.

7. He has said that vessels leaving Chandpur for Narayanganj should keep to the right side of the channel and the course would be almost due west leaving the launch‑station keeping to the right hand side of the channel, and the vessels should proceed with moderate speed. He has said that in the month of April there would be ebb tide and he has said that according to Rules if a vessel which were leaving Chandpur was showing red light the other vessel approaching should give clearance to the first vessel. He has further stated that the incoming vessel should give clearance firstly and secondly it should show red light to show its left side. Moreover the river is very wide in that place and the incoming vessels should negotiate the out coming vessel and keep to the right. He has said that both the vessels should have sounded their signals and both vessels should have proceeded at a moderate speed, and that fast speed would not be justified. In cross‑examination he has given the details of preparation of the map. He has given also the procedure to be adopted by the masters of the launches which started simultaneously for coming and going at the launch ghat of Chandpur.

8. P. W. 4 is Mr. T. H. Thomas who is a Director of the Company who held the survey. He was engaged by the New Jubilee Insurance Co. Ltd. and after his survey he tendered a report which was marked as Exh. A at the instance of the defendants. He has stated that he assessed the value of the sunken vessel on the basis of the cost of construction of a similar new vessel which he considered about Rs. 85,000 and he has deducted Rs. 20,000 as depreciation. He has stated that the wreck ultimately was salvaged and the offer made for this wreck was Rs. 5,OOOand was made by the owners. He has admitted in cross‑examination that he did not actually do the work of survey but the actual inspection work was done by one Ramzan Ali P. W.

6. He has admitted that the launch was built in 1928 and re‑built in 1958‑59 and its engine's ‑horse power is 215 and there was no advertisement when the wreck was offered for sale. After salvage whether the launch was handed over to the owner or to the Insurance Co. he could not say. P. W. 5 Habibur Rahman is an accountant of the I. W. T. A. He has proved Exhs. 4 and 5. P. W. 6 is Ramzan Ali. He has deposed that he works with Sinclair Murray Pak. Ltd. and he did the survey work. He has stated that he prepared the report after enquiry. In crass‑examination he said that he went three times but in all the three times it was under the water. Then he says that it was twice under water. He could not say who sold the wreck and whether it was sold to Suruj Mia.

9. Defendant's witness No. 1 is Haji Abul Hashem, the owner of the motor launch Madina. He has testified that his launch was properly equipped, according to regulations, and that M. L. Madina was a very old launch and had made several acci dents. With regard to incident of 29th April 1964, he stated that there was an accident and he stated that his launch Madina was standing still when the accident occurred. But this must be taken as no evidence as he was not present at the place of occurrence at that time. In cross‑examination he has given the details about his launch and has proved the certificate of survey and registration, which are marked as Exhs. A and B. He has stated that one Hiron Khan was the Master of the vessel and that the journey from Narayanganj to Chandpur takes 4j hours at the time of low tide and at the time of high tide it takes one hour more. He stated that his vessel started from Narayanganj at 3 p.m. on the date the incident took place. He has said that whatever he said in the written statement he had done on hearing from the Master. D. W. 2 is Master Ali Akbar. He was Master of the Steamer Ostrich. He has been working as master for 37 years and he has got a first class Master licence. He has testified that he was on board on the 29th April 1964, on the same steamer. He has said that he reached at Chandpur at 6 p.m. and departed at 6‑30 p.m. and he was going to Goalundo from Chandpur. He was on the master's bridge and gave three whistles for backing the steamer. While he was backing the steamer one launch which he now understands was Jalamoni was coming towards him. The‑launch Jalamoni came to his front. "As Ostrich was proceeding down the river, Jalamoni was going in my front. It was about 30 feet away. When I had come out from the Tak, Jalamoni had also come". When he was turning to the right Jalamoni had come beyond the Tak and had turned to the right. Madina was standing there on the north of the Tak and when Jalamoni came and fell on Madiria there was a. sound which he heard from his steamer: When he heard‑ the noise he lighted the search light, 2 lights one red and one green was visible. After he saw the red and green lights the launch sank within 7/8 minutes. He said that he saw the red light of Jalamoni and the green light of Madina. When the launch was sinking he saw the sinking, and. put on the search light and blew the whistle and when he gave the danger signal many launches came to the place. He gave the search light and arranged for the rescue but could not actually come to the place of occurrence. He could not go there as many other boats and launches went there. He has stated that he was about 100/150 feet from the mouth of the khal and about 100 feet from the mouth of the river and about 100 feet from the bank of the river. He saw Madina when he was coming out from Dakatia through his search light. He also saw Jalamoni. Madina he believed was standing still. He had said that it is a rule that when a big steamer comes out from the channel the other small steamers cannot enter into the channel. He has said that the width of the river Meghna was there too wide; that at least 20/50 launches can stand and ply. He had not seen any launch on the right side of Madina_ nor on the left side. And the right of Madina was absolutely clear. In cross‑examination he has admitted that he did not know on which direction it was going but Jalamoni had come out of Dakatia river and had turned right. He was backing the steamer at half speed. He has admitted that he was not examined before any enquiry as witness in connection with the accident. He said that he was on the northern‑side of the river Dakatia and on the south of Dakatia it was a Ghara. He has stated that he first saw Jalamoni when it was on his front to the east. On reaching the mouth of the river on his side towards west, and Jalamoni went to the north by turning around the Tak. He has said that he was going at a half speed and Jalamoni was proceeding in full speed because it has less power and of small size. He has said that he was about 200 feet away from the place of occurrence. He has said that he heard the sound, then he looked and then he saw red and green light and it took 4/5 minutes to sink. He has said that he took only five minutes time to turn his search light on the place of occurrence and he said that Madina helped in rescue operation and also picked up people and threw life buoy. He was there for about half an hour and Madina was still there when he came away. He has said that he received letter from his Company to give evidence in this case and that he has not spoken with Haji Abul Hashem nor he has given any evidence in collusion with him.

10. D. W. 3 is Hiron Khan who was the Serang of the launch M. L. Madina on the relevant date. He has deposed that he had started the launch at about 2‑30 p.m. from Narayanganj and reached Chandpur at about 7 p.m. Reaching near the Chandpur Tak he gave a long whistle, and slowed the engine. Then he heard a short whistle from mail steamer which was coming out from Nala then he kept his launch stopped with the idea of getting in after the mail steamer went out. The search light of the mail steamer fell on his launch. He suddenly had see:i that one launch was coming out from Dakatia and was going from his right to his left. Then he gave three small whistles and backed in full stream. Then the Jalamoni launch came with full speed on to his launch and there was a collision with Jalamoni and Madina. He had said that he had given three blasts as that was the signal for backing according to the rules, then the launch Jalamoni had sunk down. He tried to help the passengers of Jalamoni but his own passengers who were according to him about 70/75 persons, discouraged him from helping the passengers on the apprehension that they would face danger. He had given the location of the place where he had stopped at 100 cubits from the bank of the river and it was about 100/125 feet off to the north of the mouth of Dakatia river. He had said that he had his navigation lights on. He had red light, green light and white light and search lights and he had life buoy and fire extinguishers. He has deposed that he had not seen the navigation light of Jalamoni and it had no search light. He could not say whether there was any life buoy of Jalamoni. He had deposed that he came to know later on that there was no Serang on Jalamoni. He had deposed that the river Maghna would be 1 or 1J miles in width at the place of occurrence and there was no obstruction to his right at the time when the accident took place. In reply to the question "who was at fault for the accident." He answered first "common". Then he said it was due to fault of Jala moni. He stated that he had reported about the accident to his owner and that it was high tide time in the river.

11. In cross‑examination after giving the details of the engine and equipment that was in the launch Madina he has said that he gave evidence before the preliminary enquiry. At the time of accident he said that he was holding "Telegram" by the side of the Sukhani. He has said that the accident took place after the magrib prayer. He admitted in cross examination that he gave his test on steam launch and motor launch. He said that there was no change in the ‑tales after he gave his test. He had shown in the map, the position of the river Dakatia and the Tak. Then he said that he did not understand this map. He has said that the width of the Dakatia river where it joins with Meghna is about 4/5 hundred feet. But the channel is small and it is only 100 feet. He said that he had stopped before he had seen the Ostrich when he heard three blasts of whistle from Ostrich. He said that he kept the engine running but the stream of the river was moving towards north from south. He said that in order to avoid the accident he backed and also gave three whistles. He stated that Jalamoni was hit towards 4/5 feet away from head it is further stated that he threw life buoy when he saw people were drowning and that he had 18 life buoys which he had thrown. He has said that he was at the spot for about 15/20 minutes. He did not pull in any life buoy with any person. D. W. 3 in an answer to a further cross‑examination said that he wanted to save the life of the passengers of Jalamoni but he was prevented by the passengers of Madina and as such he took his steamer to the side of the river and after dropping his passenger he came back to the place of occurrence and tried to rescue the passengers of Jalamoni with the aid of searchlight. He said that he did not find any passenger of Jalamoni. Thereafter when the mail steamer left he entered in the Nala and he went to the launch ghat where he said that he was there for about one hour. Thereafter he said that he came to Narayangang in a launch named Matlab to inform the owner of the company instead of coming by Madina because the people were making a row. He has denied that he said in the preliminary enquiry that his certificate of competency was recommended for cancellation to the authority.

12. D. W. 4 is Abdul Latif. He is a Sukhani of the launch Madina. By Sukhani he meant Assistant to the Serang. He has stated that he started the launch at 3 p. m. from Narayanganj and stopped at various places in Meghna and arrived near the Tak at Chandpur. Then he heard 3 short blasts from Dakatia river. At that time suddenly when the launch Jalamoni came in front of the search light of the steamer Ostrich and was about of fall upon their vessel he gave three short whistles. The Seranb tried to save the steamer but he could not and the launch Jalamoni came and fell upon it. It was high tide time the Serang threw 10 life buoys from the launch. He said that they had about 60/70/80 passengers who shouted and demanded that they should be taken to the shore, otherwise this launch might also sink. Then the Serang took them to steamer ghat No. I instead of going to launch ghat and after the passengers were dropped the steamer returned to the place of occurrence again. By focussing the light he examined the place and finding no other passenger drowning there he returned to the launch ghat. Then he left the launch there. The Serang got down from the launch and he also got down from the launch. After one day he came to see his owner. He had explained by "telegraph" he meant apparatus for communicating the driver, who sits near the engine. The steering wheel is called Sukhan and the distance between Sukhan and telegraph is one cubit. In cross‑examination he had admitted that he has no licence as he is a Sukhani. He also said that if one vessel was going against the tide and another vessel comes with the tide that which comes with the tide has the right of way. He has said that Serang gave no order after seeing Jalamoni. He has admitted that up to the time of collision he was holding the Sukhan and that he had kept it straight. He has admitted that according to the rules he was to enter Dakatia river by the right. He has given the position of Ostrich, Madina and Jalamoni at the time of the collision.

13. D. W. 5 is Alep Khan. He claims to be a passenger of the launch Jalamoni. There was rush of passengers. He and other passengers protested to the launch authorities not to take so many passengers but they would not listen to that. Thereafter the launch started. After the start the launch turned round and came against a launch Azmir. Due to strong current it struck against the launch. The men of the launch Azmir pushed the launch straight and directed them to proceed towards west. It was going towards the west. A big steamer was going out and the launch was also going out. The launch approached the big steamer within 20 cubits of that steamer. Then the passengers raised alarm and the big steamer gave whistle. When the launch suddenly turned to the right which ensued considerable rolling causing an apprehension of sinking. Then the launch was given speed towards the north. Thereafter they came before another launch which he subsequently came to learn to be Madina. They were in front of the said launch. when all the passengers raised alarm and in a very short time the launch struck and all the passengers lost their balance. After the blow the launch started sinking and it tock 4/5 minutes to sink down. Then he fell into the water and tried to find out any buoys and he swam across and got on to Patharghata which is 100 cubits off from the place of occurrence. He said that at the time of accident a Sukhani was at the wheel and he did not see any Serang as he did not know the Serang.

14. He has said in his cross‑examination that the impact of the collision took place to the left side of the launch Jalamoni at the front portion at a little distance from the front. He could not say whether Madina vessel was moving. He said that he could not remember whether he gave evidence in the prelimi nary enquiry to the effect that Madina launch was going at a very high speed. He said he did not say anything about launch Azmiri to the officer who was holding enquiry.

15. This is the oral evidence in this case. One fact that stands out is that at the time of accident the mail steamer Ostrich was backing out of the river Dakatia to fall into the river Meghna. Jalamoni was closely following the steamer and was also going out of the river Dakatia. Motor launch Madina was to enter the river Dakatia from Meghna. Although the evidence of the expert witness called by the plaintiff, P. W. 3, is to the. effect that there was ebb tide at that tine, there is consistent evidence that it was really a high tide in Meghna. The high tide flows from the south to north. Therefore M. L. Jalamoni was with the high tide and M. L. Madina would be going against the tide. Another feature which is apparent is that the impact of the two vessels was with great force. Plaintiff's evidence, which has not been challenged, clearly shows that the motor launch Jalamoni was nearly divided into two by the impact. That would mean that both vessels must have been approaching each other at a considerable speed. If M. L. Madina was at stand still on the river Meghna, as is claimed by the defendants, the impact would not have been of such a force. Accepting the evidence that there was high tide and Jalamoni was coming along with the tide when actually it fell upon M. L. Madina it would have carried Madina along with it as there was no evidence whatsoever that Madina had anchored and was standing fixed at the place of the accident. The irresistable conclusion is that M. L. Madina also must have been proceeding at a considerable speed towards south when the accident occurred.

16. Therefore in adjudicating on the question one must start with the fact that both the vessels were travelling at high speed at the time of the collision. Bearing this in mind one has to see which vessel was really in the fault.

17. A peculiar feature of this case is that the plaintiff's having not been able to produce the evidence of their own Sareng or Sukhani. It is to be noted that the owner of the vessel having received his full compensation and having signed the note of abandonment had no further interest in the present proceedings. Plaintiff No. 2 is merely the Insurance Co. and it is quite obvious it will be incapable in its efforts in securing out the witnesses. The hearing of the case had to be adjourned on an application, by the plaintiffs filed in this Court on 8‑12‑6‑1 but they did not find the whereabouts of the relevant witnesses particularly of the Sareng on M. L. Jalamoni. Thereafter another application was filed on 19‑1‑67 stating that the Sukhani Serajul Islam had been served with the summons for deposing in the present suit and that the said witness was brought to Narayanganj by Mr. S. K. Das an officer of plaintiff No. 2 to Mr. Haider Mota's office in Motijheel. Thereafter the said witness had proceeded with Dr. Kamal Hussain the counsel to the High Court premises and he was in contact with him till then but the said witness could not be found after coming down from the car. Dr. Kamal Hossain was talking with one Mr. A. S. Fazli one of the Advocates. The fact remains that the plaintiffs could not get the services of these witnesses whatever be the reason. The Court will have to adjudicate on the issues with the evidence which had been placed before it.

18. It appears from the evidence that both the Sareng and Sukhani of the vessel Jalamoni had fled from the place of occurrence; so had the Sareng and Sukhani of the vessel Madina. But I am concerned primarily in this suit with the determi nation of the cause of the accident and to find out whether either party was to blame. It appears from the evidence that the vessel Jalamoni was coming out of the river Dakatia. Therefore, according to the rules Jalamoni would have to proceed along the right bank of the river Dakatia. The evidence of the Sareng of Ostrich clearly establishes that Jalamoni was pro ceeding along the right bank of the river Dakatia. It must be noted here that from the map Exh. 1 and from the evidence it is clear that the river Dakatia flows from east to west and before it joins Meghna it takes a sharp bend towards south. Therefore a vessel coming out of river Dakatia and wishing to proceed towards the north towards Narayanganj would have to turn right after negotiating the bend. The evidence is clear that the vessel Jalamoni after negotiating the bend had turned right. Now, for a vessel to enter the river Dakatiathe normal procedure should be according to rules to enter along the left shore. The evidence clearly establishes that the vessel Madina had failed to pass the centre of the mouth of river Dakatia. It is clear from the evidence that the vessel Madina was trying to enter the river Dakatia by its right bank. I have already held that both vessels were at a considerable speed when the impact occurred. It is clear to me that the vessel Madina was trying to take a short cut in its attempt to enter the river Dakatia. The defence of the vessel Madina that it was waiting near the bend of the river Dakatia for Ostrich to emerge completely from river Dakatia cannot be accepted. Therefore, it is clear that the vessel Madina was violating the Rules of navigation while it was attempting to enter the river Dakatia. In my opinion, the accident took place while the vessel Jalamoni was negotiating the bend referred to above and was caused by the attempt of vessel Madina to enter the river Dakatia on the wrong side of the channel in violation of the Rules. This conclusion is also borne out by the admitted fact that the vessel Madina had struck the Jalamoni on its left side. If the vessel Jalamoni was on the wrong side of the channel then the vessel Madina would have struck it on its right side. Even on the defendant's case if Jalamoni had fallen upon Madina it would have been struck on its right. Therefore, it is clear to me that the Sareng of M. L. Madina is guilty of wilful violations of the rules and in attempting to enter the river Dakatia by the wrong side had caused the accident. In my opinion, it was the duty of the Sareng of Madina to approach the river Dakatia by its left bank and as such it should have waited on the right side of the channel of Meghna till. Ostrich had completely come out of the river Dakatia. I hold that in his impatience to enter the river Dakatia the Sareng of M. L. Madina did not wait as he should have done for the Ostrich to completely emerge from the river Dakatia and he attempted to enter the river Dakatia on the wrong side of the channel. Therefore, I decide the issues Nos. 5 and 6 in favour of the plaintiffs and hold that the sinking of M. L. Jalamoni was caused by breach of statutory duty committed by the Sareng and Sukhani of the vessel M. L. Madina.

19. Issue No. 2 was not pressed and I hold that the suit is not barred by limitation.

20. Issue No. 3 was not pressed and I hold that the suit is not barred by limitation.

21. Issue No. 4 was also not pressed and I hold that the suit is not bad for non‑joinder of parties.

22. Now I shall take up issue No. 8. Is the plaintiff entitled to compensation.

23. In this connection Mr. Azizul Haque appearing on behalf of the defendant has pointed out in the survey certificate (Exh. 8) of the vessel Jalamoni the following clause "approved to ply for not exceeding 6 hours journey at one time during the day time in the normal whether in the inland water ways as a passenger's motor launch. Valid up to the 6th July 1964".

24. He has therefore, argued that as it is the admitted case of the plaintiffs that the vessel Jalamoni had set out at 7 p. m. from Chandpur Ghat it was in violation of its certificate and as such was not entitled to any damages.

25. Mr. Kama1 Hossain has argued that there is no general Rule of law to the effect that a man cannot sue for any injury suffered by him at a time when he was himself a wrong doer. He has referred to Pollock's Law on Torts, 15th Edition in support of his contention. At page 126 the learned author has said "It does not appear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrongdoer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction and even then it is difficult to find a case when is necessary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time". After review of some of the cases the learned author goes on to state that almost every case that can be put seems to fall just well if not better under the principle that a plaintiff who bas voluntarily exposed himself to a known risk cannot recover. Now it is to be seen, accepting the principles laid down by the learned author, whether the case before me falls into the category indicated by the author. Admittedly the vessel Jalamoni was plying at a time when it was forbidden to do so by its licence. Therefore, it was itself a wrong doer but it is now to be determined whether this unlawful act, that is plying at a time which was categorically forbidden by its licence (therefore by law) can be connected with the harm suffered by it as part of the same transaction. It may be argued on behalf of Jalamoni that the mere fact that it was travelling at a time forbidden by its licence has no connection with the harm caused by the vessel Madina. On the other hand, it may be argued on behalf of the vessel Madina that the accident would not have occurred if Jalamoni had not started from Chandpur after the time of its plying for the, day was over. The question is rather complex and must be solved with reference to other guiding principles. In America the modern tendency has been formulated by the Supreme Court of Massachusetts which has held in the case of Newcomb v. Boston Protective Department ((1888) 146 Mass. 596), that the principle is generally applicable in such cases is that illegal conduct of the plaintiff which contributed directly and approxi mately to the injuries suffered by him is equivalent, as a matter of law to contributory negligence. But this view was not accepted by Pollock. He has characterised it as an unwarrantable extension of the term contributory negligence, founded on a misapprehension of the true meaning and reasons of the doctrine, as if contributory negligence were a sort of positive wrong for which a man is to be punished. The learned author would prefer to put such cases to be governed by the principle, that a plaintiff who has voluntarily exposed himself to a known risk cannot recover. The dis tinction made by the learned author is subtle but nevertheless sound.

26. In England in collision cases on the High ways it has been held that the action of trespass does not lie for injuries received on the High ways. A person run over cannot recover unless the person incharge of the vehicle was guilty of negli gence in its management. In case of damages for accident caused by breach of statutory duties it has been held that one of the most difficult question that arises in fact is whether there is proof that the breach of duty was the cause of the accident. The Courts have considered the point from the view of the suit having been brought by an injured person against the owner of the factory where the accident had taken place who was bound to observe certain statutory duties. In such cases it has been held that the circumstances raised a probability in favour of the plaintiff which the Court may act upon unless it is rebutted by positive evidence. If, however, the damage suffered is not the very thing that the statute is designed to prevent, the onus is undoubtedly on the plaintiff and it may be a heavy one. In our case the breach of the statutory duty is attributed to' the plaintiff, namely the vessel Jalamoni, which had suffered the damage. But can the principle be rightly made applicable to the facts and circumstances of the case? Can it be said that the accident was the result of the violation of the statutory duty. In England prior to the Law Reform (Contributory Negligence) Act, 1945 it was settled law that contributory negligence was a complete defence even in a case of absolute duty. But after the Act the courts have been enabled to apportion the responsibility and to award the plaintiff reduced damages.

27. The question then arises whether this principle of the pro visions of the Act can be applied to marine accidents. In England as already stated the rules as to plaintiff's contributory negligence have now been embodied in a statute. But so far as the Maritime collisions are concerned the provisions of the Law Reforms Act of 1945 were not applicable and the law relating to maritime collisions was embodied in the Maritime Conventions Act of 1911 and the Law Reform (Contributory Negligence) Act .1945 has itself laid down in section 3 (i) that the Rules embodied in the said Act shall not apply to maritime collision, and shall not apply to any claim to which section (1) of the Maritime Convention Act, 1911 applies.

28. The Maritime Convention Act, 1911 in section (!) lays down as follows:‑

29. "1.‑(1) Where by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel is in fault;

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally; and

(b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed; and

(c) nothing in this section shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.

(2) For the purposes of this Act, the expression `freight' includes passage money and hire, and references to damage or loss caused by the fault of a vessel shall be construed as including references to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages."

30. I have already held in my said order dated 15th of August 1966, that on the day that the Court of Admiralty Act (Pakistan) was enacted in 1891 this Court had the same jurisdiction as that of the Court of admiralty on that day in England. But the Maritime Convention Act of 1911, judged from that point of view would not be applicable to the Court of Admi ralty in Pakistan. I am not aware of any legislation of the type of Maritime Convention Act of 1911 passed either by the Indian Legislature or Pakistan Legislature. But I do not see why the same principles should not be followed by this Court. This is a salutary piece of legislation in conformity with the modern tendency of legislation and judicial decisions and I propose to adopt the principle enacted in the said C section (1) of the said Maritime Conventions Act, 1911 as quoted above. Applying the same principle I hold that M. V. Jalamoni was guilty of breach of statutory duty but I cannot hold that the accident was wholly caused by the said breach. By plying at a time forbidden by its license it merely laid itself open to the occurrence of such an accident. But that was not the cause of the accident. The direct cause of the accident was due to the fault of the Master and Sukhani of the vessel Madina. I, there fore, propose to reduce the damages which the vessel Jalamoni can claim by 33 per cent. only.

31. This brings me to the consideration of the quantum of the damages. The plaintiff have claimed a sum of Rs. 73,311 as damages. The break up for the figure is as follows :‑

32. Particulars of Loss

33. Rs.

34. "Value of M. L. Jalamoni" on the date of colli sion i.e. 29‑4‑64

35. 70,000

36. Less recovery from salvage

37. 5,000

38. Total

39. 65,000

40. Interest on the value of the said vessel from

41. 29‑4‑1964 to date @ 6 % per annum

42. 7,800

43. Salvage and survey expenses

44. 511

45. Total

46. 73,311

47. It is in evidence of D. W. 1 that the vessel Jalamoni was purchased by him 15 to 16 years ago for a sum of Rs. 40,000. He put in a new engine about 5 to 6 years ago at the cost of Rs. 26,000. The vessel which was bought second hand 15 to 16 years ago at Rs. 40,000 cannot in my opinion to be valued at Rs. 70,000 even with the change of engine at the cost of Rs. 26,000 5 to 6 years ago. It appears also that the owners insured the vessel for a sum of Rs. 32,000 only on 3rd of March 1963, and the Insurance company paid that amount as full compensation of the claim made by the insurer for total loss. D. W. 1 does not say that he undervalued the vessel for the purpose of insurance. Exh. 10, the insurance Policy, also shows that the Hull Machinery tackle and everything connected therewith of the vessel M. L. Jalamoni was insured and the vessel was warranted insured against total loss only of the vessel. Therefore, it is clear that the vessel was valued at Rs. 32,000 only on the date of the insurance. Deducting the depreciation since the date of insurance, in my opinion, the value of the vessel would be Rs. 30,000 on the date of the accident. The sum of Rs. 5,003 wag admittedly recovered as salvage value of the launch. Therefore the loss to which the plaintiff may claim comes to Rs. 25,C00 only. Interest at 61 per cent. on this amount from 29‑4‑64 to the date of filing of this suit namely 28‑4‑66, as claimed in the plaint comes to Rs. 3,125 only. The total claim therefore comes to Rs. 28,125. Reducing by 33 per cent. the plaintiff becomes entitled to Rs. 19,750 and I accordingly award the same as damages to the plaintiff.

48. The suit is therefore decreed against defendant for the said sum of Rs. 19,750 only for which I declare that the vessel M. L. Madina is subject to a damage lien and is charged with the payment of the decretal amount to the plaintiff No. 2. If the defendant No. 1 does not make the said payment within two months from the date of drawing up of this order the vessel M. L. Madina is to be sold and the net proceeds applied towards payment of the decretal amount to the plaintiff No. 2. I disallow the prayer for interest pendente lite but the decretal amount would bear interest at six per cent. from the date the said period of two months is over till its realisation.

49. In the facts and circumstances of the case I direct the parties to bear their own costs.

50. A. E. Suit decreed.