These cases were heard by a Division Bench of this Court in detail. Both the learned Judges who heard the matter delivered separate judgments and in view of the difference of opinion expressed by the Bench, the matter is placed before me for opinion by the Chief Justice under section 23 of the Travancore-Cochin High Court Act read with section 9 of the Kerala High Court Act. Both the learned Judges in their separate judgments dismissed Writ petition No.10591 of 2002 in limine and O.P.No.19116 of 2002 without prejudice to the contentions of the petitioner and to seek relief before the appropriate court. I am not considering that part of the judgment. Therefore, what is left is only the writ Appeal No.2990 of 2002. Before stating the difference of opinion expressed by the two learned Judges, the facts of the case which are not in dispute are summarized in a nutshell.

2. Al Ahli Bank of Kuwait (KSC), petitioner in W.P.(C) No.27758 of 2002, is the appellant herein. It filed the writ petition invoking admirality jurisdiction of this Court under Merchant Shipping Act, 1958 and article 226 of the Constitution of India to quash the proceedings of the Judicial Magistrate of the first class. Ernakulam in M.C.No.11 of 2002 and related petitions and to enforce its claim as a mortgagee and to sell the vessel to foreclose legal maritime claims. Jurisdiction of the Magistrate to entertain the maritime claims of respondents 3 to 13, master and Crew of the vessel, was also questioned. The vessel M.T. Arabian victory was owned by the second respondent company. Last cargo carried in that vessel was discharged on 6-5-2002 at Port Jebel Ali and it was advised to drop anchor at Out of Port Limit (OPL) Dubai (Highseas, International Waters). According to the Master of the Ship during the stay at OPL Dubai, there was no supply of stores, spares, provisions, fresh water, bunkers etc. The air-conditioning unit of the vessel was not operational.

The crew members were also not paid their wages for the last several months. The crew remained in the anchorage for about 50 days and during those 50 days, the crew was left to look after themselves without supply of any essential and basic requirements from the owner or agents. In spite of repeated reminders by fax, the owners never did anything. They remained in the vessel at OPL (Highseas) at 46 degree centigrade as the A/C unit was not functioning without proper food. They also requested the Mission to Seafarers. A non-Governmental organization at Dubai and Managing Director of Dubai Ports and Marine Police, Dubai for help on humanitarian grounds. They were not allowed to land at Dubai. According to the Master of the ship, the second respondent company threatened the Master and crew. Even though Mission to Seafarers provided some vessel bunkers and basic essential supplies, the entries in the log book show that the crew members started falling sick due to dehydration, sunburns etc. In order to save the lives of the crew as they were in distress the ship set sail to the Port of Mumbai. Since the Port authorities at Mumbai did not permit entry for the ship, it was taken to Cochin Port. Master by Ext. R1 (1) message dated 1-7-2002 requested the Chairman of the Cochin Port Trust seeking permission to enter the Port and also requesting to provide medical assistance, fresh water and food to him and to the crew members. By the time, owners of the ship informed the authorities of Mumbai Port that the ship was hi jacked by the Master and crew. The said message was conveyed to the cochin Port Trust. Pursuant to the said intimation, the Coast Guard inspected the vessel and submitted Ext.R1. (j) report before the Chairman of the Cochin Port Trust. The report said that nothing suspicious was found in the vessel. It is further stated that the general health of the crew was not good and they require medical attention. The habitability condition of the vessel was pathetic. The vessel was running out of provisions, bunkering and there was not fresh water on board and salary was not paid to the crew and no logistic support was given to them as can be seen from Ext.R1 (j). By the directions of this Court in O.P.No.18339 of 2002 filed by a representative of ITF the above vessel was allowed to berth at Cochin Port and the vessel entered and berthed at the Cochin Port on 4-7-2002. Messers Hina Shipping and Clearing (Cochin) Private Limited was appointed as the agent of the vessel by the Master and the said agency was providing bunkers and other basic provisions to the vessel. Even after the above, the owner of the ship did not make any arrangements to take care of the crew or the vessel.

3. The Master and Crew approached the Judicial First Class Magistrates Court at Ernakulam for wages under section 145 of the Merchand Shipping Act. 1958. Section 145 of theis as follows:

"145. Summary proceedings for wages:- (1) a seaman or apprentice or a person duly authorised on his behalf may, as soon as any wages due to him become payable, apply to any Judicial magistrate of the first class or any Metropolitan Magistrate, as the case may be, exercising jurisdiction in or near the place at which his service has terminated or at which he has been discharged or at which any person upon whom the claim is made is or resides, and such Magistrate shall try the case in a summary way and the order made by much Magistrate in the matter shall be final.

(2) An application under sub-section (1) may also be made by any officer authorised by the Central Government in this behalf by general or special order."

The owner of the ship questioned the maintainability of the claim petition by filing M.C.No.11 of 2002. The Magistrates Court held that there is jurisdiction. R.P.No.62 of 2002 was filed before the District Court. Ernakulam. The order was set aside and the matter was remanded for fresh disposal. Rs. Three lakhs was remitted towards payment of wages. The Magistrates Court held that the Magistrates Court has jurisdiction to decide the claim petition under section 145 to the and claim petition filed by the Master and crew are maintainable. Thereafter, owner of the vessel, second respondent, did not challenge the same and O.P.No.27758 of 2002 was filed by the bank, on 26-9-2002 praying to quash the proceedings before the Magistrates Court on the ground that the Magistrate has no jurisdiction in entertaining the claim. Further proceedings of the Magistrate was stayed. The learned single Judge by judgment dated 28-11-2002 held that the Magistrate has got jurisdiction to determine the same and bank did not give sufficient materials to determine the claim of mortgage. On 11-12-2002, claim petitions were allowed by the Magistrates Court on the day when the writ appeal came for the first time for admission. Aggrieved by the same, the Bank filed this appeal. Owner of the ship did not challenge the order of the Magistrate or judgment of single Judge. When writ appeal was posted for final hearing after more than two years from passing of the order after hearing the observations of the Court, order of the Magistrates Court was challenged by the owner of the ship which was dismissed in limine by both Judges.

4. Appellant is a banking corporation with its head officer at Kuwait and principal place of business at Dubai. The bank has granted loans to Gulf Oil Company WLL, the second respondent which owns and operates ships in UAE including M.T. Arabian Victory. The appellant Bank has granted loan facility to the second respondent to the extent of US $ 10,250,000.00. Among other ships, the vessel M.T. Arabian Victory was also given additional security and an amount of Us $ 8,000,000 was specifically secured against the vessel M.T. Arabian Victory. Mortgage was registered. Ext.P1 is the mortgage deed. It was registered with the international Merchant Marine Registry of Belize under Merchant Ships Act, 1989. The appellant bank by its letter dated 5-12-2001 called upon the second respondent to pay a sum of US $ 12,090,576.49 as on 4-12-2001 in view of Ext.P1 mortgage as the amount was not paid and the appellant bank claimed that it has got a superior right for taking possession and selling the vessel. According to the appellant, the vessel has entered and anchored in the Port of Jebel Ali, UAE on 6-5-2002 and Master and crew unauthorisedly left the Jebel Ali Port on 7-5-2002 and took the vessel to Indian Coast. Even though Mumbai and Cochin Ports declined to berth the vessel as a shipping vessel, O.P.No.18339 of 2002 filed by a representative of ITF before stating that the ship is in distress and an order was passed on 4-7-2002 directing the port authorities to allow the ship to berth at the Cochin Port. Appellant filed C.M.P.No.111 of 2003 before this Court for release of the vessel or to dispose of the vessel after ascertaining the damages caused to the vessel by the Master and crew on appraising its value by appointing a competent marine surveyor. Since the vessel is already within the jurisdiction of this Court, in C.M.P.No.111 of 2003 filed by the appellant, this Court by order dated 11-2-2003 appointed two advocate commissioners alongwith a licensed surveyor to appraise and estimate the value of the value of the vessel and to prepare in inventory. The advocate commissioners took possession of the ship from the Master on 17-2-2003. As per the orders of this Court, a total amount of Rs.Six laksh was deposited by the bank for meeting the expenses for the sale of the vessel. This Court by consent of parties an order to sell the vessel and one M/s. Raj Shipping Agencies Limited, Mumbai offered an amount of Rs.1,80,00,000/-= which was accepted by this Court. Cochin Port Trust claimed port dues, pilotage, berth hire charges alongwith salestax and penal interest. Salestax payable on the sale of the vessel was remitted to the Department through the advocate commissioners. The bank also did not object to the payment of salary and allowances to the master and crew of the vessel till 6-5-2002. Respondents 3 to 13 filed a statement claiming arrears of salary and allowances to the tune of Rs.32,06,880/= as on 6-5-2002.

5. a Division Bench of this Court passed an order on 1-8-2003 which is as follows:

"(i) Respondents 3 to 13 shall be paid Rs.32,06,880/- (Rupees Thirty two lakhs six thousand eight hundred and eighty only), the Rupee equivalent to U.S. Dollars 71,264/- mentioned in the statement dated 5-7-2003 of their counsel;

(ii) Captain Sayed Razak (Master of the Ship) shall be paid a sum of Rs.12 lakhs;

(iii) Respondent No.14 in the writ appeal (Cochin Port Trust) shall be paid a sum of Rs.125 lakhs; and

(iv) Advocate Commissioners Shri Koshy George and Shri George Thomas Mevada shall be paid a sum of Rs.35,000/- each."

The amount which was deposited before the District Court was transferred to this court and the balance amount of Rs.1,27,07,660/- is in court deposit. Master and crew of the ship sought a direction for disbursement of the entire amount due to them as ordered by the Magistrate. The Magistrates Court ordered payment of Rs.1,41,142 lakhs in dollars. Even though the bank has no objection in paying the wages and other benefits till 6-5-2002, according to the bank, thereafter, since the master and the crew had taken the vessel unauthorisedly to the Indian Coast, it amounts to barratry. The ship was hijacked and brought to the Indian territorial waters which was unauthorized, fraudulent and a criminal act and, therefore, master and crew are liable and responsible for all consequential liabilities, demurrage etc. it is the contention of the second respondent, owner of the ship that there was no basis for the allegation that there was no proper supply of fresh water, medical assistance, communication facilities for crew and air conditioning and the vessel was not in distress, but, the master and crew had hijacked the vessel from UAE to India and they have forfeited their right to claim wages. It is also stated that against Rs.32,06,880/- claimed as wages upto 6-5-2002, total amount payable as on 31-5-2002 is only Rs.21,47,040/- and an excess amount has to be recovered from the employees. It is further submitted that as per Ext.P1 agreement, only the Courts of Emirates of UAE have jurisdiction to adjudicate the claim of the bank in enforcing the mortgage. Further, instead of filing writ petitioner, the appellant bank ought to have filed claims before the Sub Court having jurisdiction and after paying court fees. Since court fee was not paid, they cannot enforce the mortgage. It is also submitted that a settlement was arrived at by the appellant and the second respondent on 10-7-2002 by Annexure R2 (2) by which the bank has agreed to receive from the second respondent a sum of US $ 3,000,000 in full and final settlement of all claims on the basis of the agreement. The bank has already filed a suit No.3 of 2003 against the second respondent and another before the Ajman First Instance Court on the terms of the mortgage and it was dismissed on 19-02-2005. Counsel for the 17th respondent submitted that it was effected supplies to the ship and an amount of US $ 73,786.00 is due to the 17th respondent and it should be paid to them and it has got a comprehensive maritime lien. Counsel for the Crew submitted that they are entitled to the claim for wages till the ship was sold and they were discharged. Both Judges were of the opinion that the writ petition of the bank cannot be dismissed for want of jurisdiction as the High Court has got admirality jurisdiction in view of the decision of the Supreme Court in M.V. Elisabeth v. harwan Investment and Trading (1993 Supp (2) SCC 433). Whether bank can enforce its mortgage claim through Indian Court was a different question.

6. Honble Mr. Justice Radhakrishnan was of the opinion that the master and crew of the vessel has committed the offence of barratry when they moved the vessel from the place of anchorage on 7-5-2002, but, they are entitled to payment of salary till 6-5-2002. There is no dispute regarding entitlement of salary upto 6-5-2002. According to His Lordship, from 7-5-2002 onwards, they are not entitled to any salary as they highjacked the vessel and committed the offence of barratry. Even though the vessel was allowed to be berthed on distress, they are not entitled to salary thereafter and Judicial First Class Magistrate, Ernakulam has no jurisdiction to award wages under section 145 of the Merchand Shipping Act. His Lordship also held that the Bank of Kuwait is entitled to invoke the admirality jurisdiction of this Court as the vessel was berthed at Cochin Port and the following reliefs were granted:

"(i) We hold that the orders passed by the Judicial First Class Magistrate, Ernakulam in M.C.Nos.11 and 21 of 2002 and connected cases are without jurisdiction. Hence, all the consequential orders passed by the Magistrate Court are non est in law and are declared void.

(ii) Respondents 3 to 13 are not entitled to enforce any maritime claims over the vessel M.T. Arabian Victory since they have committed the criminal act of barratry and their attempt was nothing but forum shopping.

(iii) The Bank is justified in invoking the jurisdiction of this court and is therefore entitled to receive the amount in deposit after satisfying the claim of the Cochin Port Trust and also releasing the amount deposited by the second respondent.

(iv) The amount already paid to respondents 3 to 13 and the Master of the ship be retained by them subject to the right of the second respondent to initiate appropriate legal proceedings, if there is any excess payment.

(v) the second respondent is entitled to get back the amount of Rs.3,50,151/= deposited by them which was transferred to this court from the District Court, Ernakulam.

(vi) Cochin Port Trust is entitled to get Rs.7,35,241/- with interest at the rate of 9% from 24-6-2005 till payment.

(vii) 17th respondent is not entitled to get any relief from this court and they have to move the appropriate court in U.A.E.

(viii) Parties will bear their respective costs."

7. Honble Mr. Justice Balakrishnan Nair was of the opinion that the master of the ship was fully justified in bringing the vessel to Cochin as it was a vessel in distress and the master and crew are entitled to wages. They have not committed any barratry. There was no fraudulent conduct from the part of the master or deliberate intention to harm the appellant. The appellant bank has no knowledge of the dealings between the owner of the vessel and its employees. The second respondent employer has abandoned his defence against the master and crew even if they have committed barratry, it is condoned and the it was allowed the vessel to continued care and control of them and if the employer does not have any complaint against the conduct of the employees, third parties cannot complain against them and, therefore, the bank, in any event, cannot contend that there was barratry and, hence, the Magistrates court has no jurisdiction to order payment of salary under section 145 of the Merchant Shipping Act. It was also found that the order of the Magistrate has become final against the employer as it needs no interference. Since there was no valid challenge to the order of the Magistrate by the employer employees are entitled to get wages from 6-5-2002 to 31-12-2002 as held by the Magistrate. They did not get any order for wages from the magistrates Court for the period 1-1-2003 to 17-2-2003. After 17-2-2003 the ship was arrested and the Commissioners were appointed by the court to preserve and sell the vessel. The crew were acting under the orders of the Court under the commissioners and they are entitled to salary from 17-2-2003 to June, 2003, the date of sale. If the crew did not look after the ship it would have been completely damaged. In the above circumstances, the following reliefs were granted by the Honble Mr. Justice Balakrishnan Nair:

"The Master and the crew shall be paid from the balance sale consideration, wages from 7-5-2002 to 31-12-2002, at the admitted rates and also from 17-2-2003 till the date, the vessel was handed over to the purchaser at the same rates. Among the crew, the 5th respondent was signed off on 25-12-2002. So he is entitled to get only the wages ordered by the learned Magistrate and that too, after deducting one weeks wages from 25-12-2002 to 31-12-2002"

The Court also ordered that:

"The Cochin Port is entitled to get Rs.7,35,241/- with 9% interest from 24-5-2005. The Registry shall release the said amount within one month. The agency, which provided service to the ship, while it was berthed at Cochin Port, is entitled to get the amount due to it. An amount of Rs.12 laksh has already been released through the Master of the ship to the said agency. The said agency may approach the competent civil court to establish the amount due to it and may move for attachment of the amount of sale proceeds, lying with this Court, to the extent, the 17th respondent relates to the supply of materials to the ships of the 2nd respondent in the U.A.E. For enforcing the said claim, the said respondent has to move the competent court in the U.A.E. So, the claim of the 17th respondent raised before this Court, is rejected without prejudice to its contentions and its right to move the appropriate court in the U.A.E. for appropriate reliefs,"

The Court further ordered that:

"The appellant Bank is entitled to get Rs.Six lakhs deposited by it before this Court. The 2nd respondent is entitled to get Rs.3,50,151/- deposited on its behalf before the District court, Ernakulam, which was later, transferred to this Court. The said amounts shall be released to them within three months, by the Registry."

With regard to the balance amount, it was ordered as follows:

"....that the balance amount should be kept in deposit with this Court, till the final resolution of the dispute between the appellant and the 2nd respondent, pending before the Court/s in the U.A.E. The balance sale consideration, after defraying the above said amounts, shall be deposited in the treasury of the Government of Kerala, in the S.B. account, so that it will fetch some interest. The said amount, after retraining any amount attached by any competent civil court, shall be released to the successful party before the U.A.E. court/s. When any motion is received for the released of the balance amount, the same shall be placed for orders before the bench."

8. A reading of both judgment and reasoning would show that major dispute is regarding the contention of the Bank that the appellants are not entitled to claim wages through Magistrates court under section 145 of the Merchant Shipping Act and the entire amount after paying the wages upto 7-5-2002 should be released to them towards the mortgage. Mortgage claim can be enforced through jurisdictional court as per the provisions of mortgage deed. I agree with the observation of Mr. Justice Balakrishnan Nair that the question whether the crew committed barratry and whether their further travel was unauthorized or whether they are entitled to wages can be questioned by the employer, second respondent herein. The second respondent did not challenge the order of the magistrates court in time. In fact, even after getting a copy of the judgment in the writ petition, they did not file a writ appeal questioning the findings of the learned single judge. It is not a case whether the second respondent company filed vakalat under protest and then participated in the proceedings and then resisted the claim at the time of execution. The decision of the Supreme Court in World Tanker Carrier Corporation v. SNP Shipping Services Private Limited ((1998) 5 SCC 310 [LQ/SC/1998/477] ) is of no help to the second respondent. The jurisdiction of the Magistrates court in granting wages after 6-5-2002 was specifically contested by filing a C.M.P. Original order was challenged before the District Court. After remand, it was not seriously contested and that part was adjudicated and an order was passed by the Magistrates Court. It is not like mere filing a vakalat under protest. After getting an adjudicated order on the matter of question of jurisdiction, they cannot contest the same in collateral proceedings that the Magistrate has got no jurisdiction. They ought to have challenged the order of the Magistrate. As rightly held by the Mr. Justice Balakrishnan Nair the above finding of the Magistrate that there was no barratry and they are fully justified in voyaging the vessel as it was a ship in distress etc. became final and, therefore, jurisdiction of the Magistrate cannot be questioned by the employer. The bank is only an mortgagee. It cannot have a better claim than the owner. The learned counsel for the second respondent also cited the decision of the Supreme Court in Sarwan Kumar and another v. Madan lal Aggarwal ((2003) 4 SCC 147 [LQ/SC/2003/192] ). In that case, even though an exparte decree was passed by the civil court taking the view that the tenant after termination of tenancy by service of notice under section 106 of the Transfer of Property Act became a statutory tenant and his death tenancy came to an end. Because of the decision of the Supreme Court in Gian Devi Anand v. Jeevan Kumar ((1985) 2 SCC 683 [LQ/SC/1985/163 ;] ">((1985) 2 SCC 683 [LQ/SC/1985/163 ;] [LQ/SC/1985/163 ;] ) declaring that commercial tenancy is heritable and the ejectment decree passed by the civil court is without jurisdiction, the Apex Court held that the question of jurisdiction can be taken at the execution stage. Here, there is no such declaration by a higher competent court regarding the jurisdiction of the Magistrates court. The jurisdiction of the Magistrate in passing orders under section 145 in granting wages for the period after 6-5-2002 was questioned and decided against the employer and it has become final. Judgment of the learned single Judge was also not challenged by the second respondent by filing a writ appeal. Hence the above judgments are binding on the second respondent. Since the owner of the ship, the employer, cannot contend that there was barratry and Magistrate has no jurisdiction to order wages, the mortgagee also cannot contend that the position regarding lack of jurisdiction or entitlement of wages of employees especially when there is no evidence of collusion within owner or crew. In fact, their relationship were not cordial at all. Even otherwise, employees were discharged only on sale of the ship. Master and crew cannot abandon the ship in Highseas and they were on duty till they were discharged.

9. Now, we will consider the question whether the bank has got superior claim in view of the mortgage. Article 4 of the international Convention for the Unification of Certain relating to Maritime Liens and Mortgages framed at Brussels on 27th May, 1967 shows that wages are secured by maritime liens on the vessel. Clauses (1) (i) and (ii) of Article 4 read as follows:

"(i) wages and other sums due to the master, officers and other members of the vessels complement in respect of their employment on the vessel;

(ii) port, canal and other waterway dues and pilotage dues;"

Article 5 reads as follows:

"1. The maritime liens set out in Article 4 shall take priority over registered mortgages and "hypotheques", and no other claim shall take priority over such maritime liens or over mortgages and "hypotheques" which comply with the requirements of Article 1, except as provided in Article 6 (2).

2. The maritime liens set out in Article 4 shall rank in the order listed, provided however that maritime liens securing claims for salvage, wreck removal and contribution in general average shall take priority over all other maritime liens which have attached to the vessel prior to the time when the operations giving rise to the said liens were performed.

3. The maritime liens set out in each of sub-paragraphs (i), (ii), (iii) and (iv) of paragraph (1) of Article 4 shall rank pari passu as between themselves.

4. The maritime liens set out in sub-paragraph (v) of paragraph (1) of Article 4 shall rank in the inverse order of the time when the claims secured thereby accrued. Claims for contribution in general average shall be deemed to have accrued on the date on which the general average act was performed; claims for salvage shall be deemed to have accrued on the date on which the salvage operation was terminated."

Article 6 provides that all authorised claims will come only after satisfying the maritime liens. Therefore, wages payable by the employer, that is, second respondent owner of the ship, to the master and crew has got maritime lien and, therefore, their claim has got preference over the claim of mortgagee. No suit was filed by the appellant bank in India for enforcement of the mortgage after payment of court fee. Such a suit can be filed only in Court of U.A.E. as per Ext.P1 mortgage deed. Further, they have filed suit in U.A.E. jurisdictional court as per the terms of the agreement and since that was dismissed, according to the bank, they have filed an appeal. It is also submitted that there was Ext.R2 (2) agreement between that agreement is binding or whether terms of the agreement are violated by any of the parties etc. have to be decided in that suit. In the above circumstances, balance amount after satisfying the claims allowed cannot be given to the appellant bank and, therefore, it has to be deposited here in the Treasury and the balance amount can be withdrawn depending upon the finding of the jurisdictional court. Therefore, appropriate reliefs were granted by Justice Balakrishnan Nair.

I am of the opinion that the judgment delivered by Mr. Justice Balakrishnan Nair and reliefs granted therein can be accepted as the order of the Court.