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Introduction

The Hundred and Fifty First Law Commission Report on Admiralty Law highlighted the need for
legislative action in this area. It recommended that British Statutes, i.e. Admiralty Jurisdiction
(India) Act 1860 and the Colonial Courts of Admiralty Act, 1890, and 3 other related British
statutes should be repealed by a Indian law reiterating the First Law Commission Report.

The Admiralty Bill 2005 was introduced in the Lok Sabha on 11th May 2005. The bill is aimed
to develop Indias Admiralty laws to meet the commercial demands and bridge the gap between
commercial realities and legislative requirements. Sadly, the Bill was allowed to lapse and was
not re-introduced.

Presently, the lacunae in the British statutes are being remedied by judicial Precedents and
International Conventions. Thus, it is important to analyse if the Bill is comprehensive enough to
fill the gap taking into consideration the precedents and Conventions.

Critical Analysis of The Salient features of the Bill

[A]First, the long title elucidates the purposes of the Bill as to consolidate and amend the Law
relating to [A] Admiralty Jurisdiction of Courts [B] legal proceedings in connection with ships,
their arrests, detention, and sale and other matters. Statement of objects and reasons reiterates the
recommendation in MV Elizabeth & Others v. Harwan Investment and trading Private
Limited[1][MV Elizabeth] for a codification of Admiralty law.

[B]Second,the Clause 3 of Bill confers the original admiralty jurisdiction on all the High Courts
along with a provision for the extension of this jurisdiction to other Principal Civil Courts in case
the number of cases before the High Court is unduly large.

It can be observed that Clause 5 brings in an element of clarity by defining the scope of the
admiralty jurisdiction.

The proposed Bill appears to be old wine in a new glass. Administration of Admiralty
jurisdiction is governed by British statutes. Sadly, the law is not comprehensively developed so
as to accommodate the changes adopted in the current British statutes and general practices of
Maritime law around the world.

In MV Elizabeth, Thommen J, in Para 97 has reiterated the well accepted legal proposition in
the English Legal system that customs still govern Admiralty law, thus providing wide
jurisdiction.

Although statutes now control the field, much of the admiralty law is rooted in judicial decisions
and influenced by the impact of civil law, common law and equity. The ancient maritime codes
like the Rhodian Sea Law, the Basilika, the Assizes of Jerusalem, the Rolls of Oleron, the Laws
of Visby, the Hanseatic Code, the Black Book of the British Admiralty, Consolato del Mare, and
others are, apart from statute, some of the sources from which the law developed in England.
Any attempt to confine admiralty or maritime law within the bounds of statutes is not only
unrealistic but incorrect. Although this branch of the law in England is now governed generally
by statutes, the law in all its aspects can be understood only by viewing it in the context of
decisions of courts and the general principles which are common to common law and equity.

Cl.5 is based on the Supreme Court Act of 1981 in UK, which is comprehensive and imbibes the
principles developed through judicial decisions and International conventions.

However, there is a need for regular revision of the clause by taking into account the global
changes and the Local maritime conditions.

[C] Third, Clause 6 deals with action in rem while clauses 7 & 8 relate to the action in
personam. Thus, the present Bill proposes to remove the limitation under Sec.35 of the
Admiralty Courts Act 1860, which did not provide the cases when a particular action can be
initiated[2].The main drawback of Section 35 of the Admiralty Courts Act 1860 was that exercise
of actions in rem precluded action in personem, which affected effective remedy due to the low
value of the Ship.

This lacuna was identified and cured in Britain as early as 1975. It can be seen that before 1975
in Unites States, American Maritime law provided for both action in rem and conservatory
attachment. Law permitted any property of the debtor (including ships) to be seized and detained
under judicial authority pending judgment[3] [saisie consevatoire (attachment)]. Lord Denning
in his judgement in Mareva Compania Naviera S.A. v. International Bulkcarriers [The Mareva
injunction] provided for freezing of defendants assets to ensure effective remedy.Though, the
Mareva Injunction had its own limitations, yet the British maritime law has gone further by
adopting the Brussels Convention on arrest 1952. In1999, it adopted Geneva Convention on
arrest of sister ships. This provides a framework to ensure effective remedy in the English arena.
Both the arrest conventions tried to bridge the gap between saisie consevatoire (attachment)
and the common law concept of arrest in rem [ Action is against the res- Ship is treated as a
person].

It can be observed that the clauses are still ambiguous in the proposed Bill. They seem to hint
that in cases where action in personem is to be initiated actions in rem cannot be initiated. The
99th Report by Committee of Transport, tourism, highlighted that this might be misused by
foreign ship owners to avoid jurisdiction. The report also asserted that the provisions are an
incomplete implementation of the current British laws. Furthermore, actions in personem may be
instituted in civil courts, thus rendering quick disposal of matter difficult.
[D] Fourth, Clause 11 entails the procedure of distribution of sale proceeds and Clause 12 deals
with the order of priority of claims.

On bare perusal of Clause 12 it becomes clear that order of priority for settling claims provides
priority of Maritime Lien over Mortgage. This clause is a fine example of codification of the
universally recognised principle. Art. 5.1 of the International Convention on Maritime Leins and
Mortgages, 1993, to which India is a signatory, declares that maritime liens set out in Article 4
shall take priority over all claims. Earlier, judicial pronouncements were dependent solely on
customs and practices to determine order of priority. Thus, codification of the same would ensure
stability and consistency.

In Interaccess Marine Bunkering Ltd v. K.M. Alluddin[4] , V. Ramasubramanian J of the Madras


High Court, in an excellent treatment of the subject had a determined the following on order of
priority