Maritime law

This is about the maritime law related to ship vessels

1. MARITIME LAW PRESENTED BY GURURAJ KULKARNI ADVOCATE KALBURAGI KARNATAKA INDIA

2. INTRODUCTION Admiralty:  1. A court that exercises jurisdiction over all maritime contracts, torts, injuries, or offenses . 2. The system of jurisprudence that has grown out of the practice of admiralty courts . 3. Narrowly, the rules governing contract, tort, and workers'-compensation claims arising out of commerce on or over navigable water.

3. The term, admiralty, specifically refers to the British courts in England. Separate courts that traditionally exercised jurisdiction over all regulations and handling of disputes relating to sea navigation and commerce

4. Maritime law:  the body of law governing marine commerce and navigation, the carriage at sea of persons and property, and marine affairs in general; the rules governing contract, tort, and workers'-compensation claims or relating to commerce on or over water. Also termed  admiralty ,  admiralty law ,  sea law .

5. Law of the sea:  the body of international law governing how countries use and control the sea and its resources.

6. Admiralty, or maritime law, is the private law of navigation and shipping and covers inland as well as marine waters . It is the entire body of laws, rules, legal concepts and procedures that relate to the use of marine resources, ocean commerce, and navigation. Maritime law was shaped by the practical needs of those countries bordering the Mediterranean Sea involved in maritime commerce, the roots of which are traced as far back as 900 B.C.

7. The development of the Merchant Shipping Law in India has had a long history of over a century. The first Act on the subject, passed by the British Parliament, was the Lascars Act, 1823 (4 Geo. 4, c.80). This Act, which was partly repealed later, enabled rules to be made by the Indian Legislature to be observed by “Masters and Officers, Owners of ships and vessels trading under the authority of the Act.”

8. There was further legislation enacted by the British Parliament e.g. 3 and 4 Vict . c. 56, under the authority of which the Indian Registration of Ships Act of 1841 was passed in India. Similarly, in 1855, by virtue of a British Act (18 and 19 Vict . c.119), the Indian Sea Passengers Act of 1855 was enacted

9. The Merchant Shipping Act, 1894 (57 & 58 Vict . c. 60) has been the most important Act of the British Parliament relating to Merchant Shipping and this Act has consolidated all the earlier Parliamentary legislation and also defined the application of the British Acts to India and other parts of the British Empire.

10. The basis of the present Indian Law The British laws were basically sound in their technical application and merit and the I.M.S. Act of 1958 rightly takes its inspiration from the following two major sources : A. International Conventions : B. The U.K. law on Merchant Shipping:

11. A. International Conventions : The merchant shipping law deals mainly with technical matters and many of these are regulated by International Conventions like the Safety Pollution, Limitation of Liability, Prevention of Collisions and Loadline Convention, the I.L.O. Conventions, etc.

12. The U.K. law on Merchant Shipping In 1931, the U.K. and the various Dominion Governments entered into the Commonwealth Merchant Shipping Agreement which provided that for various matters like registration, standards of safety, ship’s articles, certificates of officers, ship enquiries, etc., the law throughout the Commonwealth should as far as possible, be uniform. Although India was not a party to this Agreement as she was not a Dominion in 1931, she had adhered to the Commonwealth arrangements to the extent that was possible and desirable.

13. The Indian Legislature has replaced the British statutes by enacting the Merchant Shipping Act, 1958.

14. Power to enforce detention of ship Section 444. (1) Where under this Act a ship is authorised or ordered to be detained, any commissioned officer of the Indian Navy or any port officer. pilot harbour master, conservator of port of customs collector may detain the ship. (2) If any ship after detention, or after service on the master of any notice of, or order for, such detention proceeds to sea before she is released by competent authority, the master of the ship shall be guilty of an offence under this sub-section.

15. (3) When a ship so proceeding to sea takes to sea, when on board thereof in the execution of his duty any person authorised under this Act to detain or survey the ship, the owner, master or agent of such ship shall each be liable to pay all expenses of, and incidental to, such person being so taken to sea and shall also be guilty of an offence under this sub-section

16. (4) When any owner, or master or agent is convicted of an offence under sub-section (3), the convicting magistrate may inquire into and determine the amount payable on account of expenses by such owner, master or agent under that sub-section and may direct that the same shall be recovered from him in the manner provided for the recovery of fines.

17. LAWS APPLICABLE TO MARITIME LAW The various laws of India dealing with transport of goods by sea are: The Merchant Shipping Act, 1958 , The Indian Carriage of Goods by Sea Act, 1925, The Indian Bills of Lading Act, 1856, And general statutes, such as the Marine Insurance Act, 1963, The Evidence Act, 1872, The Code of Civil Procedure, 1908,  T he Contract Act, 1872

18. The Indian Penal Code, 1860, The Criminal Procedure Code, 1973, The Companies Act, 1956 etc. as well as the general principles of law such as the law of torts, public and private international law etc.

19. In India, the Admiralty Jurisdiction is confined only to few courts . Initially the High Courts of Bombay (Mumbai), Madras (Chennai), Calcutta (Kolkata) exercise jurisdiction over maritime matters. Which was later extended to the High Courts of Gujarat ( Ahmedabad ), Andhra Pradesh (Hyderabad), Orissa (Cuttack) and Kerala (Cochin).

20. These courts can make orders with respect to the vessels within the waters of Indian Territory. The power of most of these High Courts is confined only to vessels which can be located within the domestic limit of their territorial waters.  For instance, Madras High Court is empowered to arrest a vessel found in the waters of Tamil Nadu only.

21. The maritime law of India is largely based on the principles of the admiralty jurisdiction of England. The Admiralty jurisdiction of the High Courts at Calcutta, Madras and Bombay were based on the Admiralty jurisdiction of the High Court in England.

22. The Admiralty jurisdiction exercised by the High Courts in the Indian Republic is still governed by the obsolete English Admiralty Courts Act, 1861 applied by (English) Colonial Courts of Admiralty Act, 1890.

23. The two conventions which deal with the arrest of a shipping vessel are the Arrest Convention 1952 and the Arrest Convention 1999.  India is not a signatory to any of these Conventions. 

24. However, the Supreme Court in the case of  M.V. Elizabeth v. Harwan Investment & Trading Pvt. Ltd .  held that since India is a common law country, the International Convention of the Arrest of Seagoing Ships, Brussels, 10 May 1952 can be applied to India to enforce the claims of maritime law against the foreign ships.

25.  Further, in the case of  M.V. Sea Success , the Supreme Court of India laid down that the principles of the 1999 Geneva Arrest Convention were applicable for arresting a ship in India.  Of all the claims listed in the Arrest Conventions 1952 and 1999, the vessel can be arrested for claims relating to damage done by a ship, loss of goods in transit, salvage, master’s wages, disbursements and bottomry irrespective of any change in the ownership of the vessel.

26. In respect of the other claims, if there has been a change in the ownership of the vessel, the claim will fail, and no arrest can be made unless there was a fraud committed with respect to the change of ownership .

27. Documents required for Arrest Procedure. The most important requirement for ship arrest is that the claimant needs to issue a Power of Attorney in favour of local attorneys other that the lawyers instructed who will have the power to sign all the necessary court documents .

28. The Attorney then has to sign a Vakalatnama (Note of appearance) authorising a lawyer to act, appear and plead the case in Court on behalf of the Claimant . The next step is filing a substantive suit.  The Claimant has to state the detailed facts, the nature of the dispute, the particulars of the claim, etc. in such a suit along with all the documents supporting his claim such as the original contract, type of vessel, document regarding payment, etc.

29. This suit essentially represents the substantive portion of the claim. The last part of the suit must contain the prayer of the claimant seeking arrest of the defendant, the sale of the vessel, the amount of compensation.

30. The Plaintiff also needs to pay the court fees depending on the amount of the claim which will differ from court to court.  The plaintiff then has to file an affidavit supporting his plaint, a copy of the order of the judge requiring the arrest of the vessel along with an affidavit, a Warrant of Arrest issued by the court pursuant to the Judge’s order and served upon the vessel and an Undertaking to pay compensation in case of wrongful arrest. 

31. The plaintiff does not need to pay compensation merely because the court had set aside the arrest but only when the Court holds that the arrest was wrongful for instance, if the plaintiff himself was at fault or when the plaintiff acted with bad intention.

32. Further, an application for ex-parte arrest can be made upon plaintiff submitting Certificate from the Admiralty Registrar signifying there is no caveat issued against the arrest of the vessel with the Registry. Also any claim for wages, possession, etc. requires an issuance of notice to the Consulate of the Country in which the vessel is registered.

33. If the plaintiff wishes for an immediate arrest of the vessel, he can apply to the Court for an order of arrest on an urgent basis either on the same day of filing an application or the following day depending on the Court’s discretion.  Generally, the courts make an order on the same day of filing application. 

34. Once the court orders the arrest of the vessel, the judge will sign the order on the basis of which an Arrest Warrant will be issued by the Registry.  The Court Bailiff to serve the Warrant of Arrest upon the vessel which is required to be arrested. 

35. The warrant also has to be served on the customs and the port authorities requiring them not to allow the vessel to sail . The Bailiff after serving the Warrant of Arrest upon the vessel and the port authorities will file an affidavit stating that he has performed his duty.

36. Procedure after arrest After the Arrest Warrant is served upon the vessel, the vessel is then required to appear through its owner and settle the claim or challenge the arrest. If the owner challenges the order of arrest, the owner has two options. Either he can let his vessel sail by furnishing the security for the claim and then contest the arrest, or he can challenge the arrest by keeping the vessel under arrest.

37. In the case of default of owner, the court can make an order for the sale of the vessel and the sale proceeds can thereby be utilised to settle the claims of the Plaintiff . In the case of any surplus, it must be paid back to the owner.

38. Procedures for release of Aressted Ship Property arrested under admiralty jurisdiction by a warrant may be ordered to be released ( i ) at the request of the plaintiff, before an appearance in person or a vakalatnama is filed by the defendant; or  (ii) on the defendant paying into Court the amount claimed in the suit; or (iii) on the defendant giving such security for the amount claimed in the suit as the Court may direct; or (iv) on any other ground that the Court may deem just.

39. The master of an arrested ship can represent the ship in taking steps to have it released. The bank guarantee, unless discharged, will have to continue to remain in force till the suit is finally disposed of and for a period of one year thereafter. It is possible to substitute a bank guarantee for the cash deposit. In the case of a cash deposit it is usual for the court, at the instance of the parties, to invest the amount on an interest-bearing term deposit, pending the disposal of the suit.