INSTITUTE OF LAW, NIRMA UNIVERSITY

LEGAL RESEARCH AND WRITING

2BL331

ASSIGNMENT: ARTICLE WRITING

TITLE- MARITIME LAWS IN INDIA: ANALYSIS OF THEIR EFFICACY

NO. OF WORDS- 3569 WORDS

SUBMITTED TO: SUBMITTED BY:

MR. SURENDRA KUMAR UNNATI JAIN
(18BBL055)
 MARITIME LAWS IN INDIA: ANALYSIS OF THEIR EFFICACY

ABSTRACT

In India, due to the undefined jurisdiction of the nations over the waters, exploitation of the
various legislations and provisions governing the marine transactions has been a recurrent
phenomenon. Although there existed some pre-colonial legislations governing the transactions
of the seas, there is a need to amend them to correct the confusion created because of them or
there is an inevitable need to form new strict maritime and admiralty laws and rules to facilitate
the maritime transactions. In light of the problems above stated, the researcher would first
analyze the various laws and legislations that govern the maritime sector and find out the
loopholes that restrict the smooth functioning of the sector and would suggest relevant
measures that may be necessary for the improvement of the sector.

STATEMENT OF PROBLEM

India, as an emerging economic superpower, enjoys a rich maritime heritage in trade and
commerce and its associated law is deeply rooted in historical antiquity. While in contemporary
times, Indian jurisprudence is entitled to a high degree of recognition in common law areas, in
maritime law, India has yet to secure a strong position in the international regime. In the earlier
times, India did not have its statues to govern its national or international trade through the sea
but there was some pre-colonial legislation that governed the same. Till the date, there still
exists some legislation of the British colonial times that regulate and manage the admiralty
jurisdiction of Indian Courts. There is a dire need to be suitably amended to correct the
anomalies that have been created due to those in the legal sector. Also, with various
amendments and reforms that have come after the independence of the country, lack
somewhere to control the whole maritime sector efficiently and effectively. The legal sector in
this field remains confused. Thus, there persists a direct need to circumvent the old ways and
adopt new methods to counter the ever-evolving scenarios of our Admiralty and Maritime
sector.

RESEARCH METHODOLOGY

The success of any research including legal research depends to a great extent on a good
knowledge of certain basic principles and methods used to carry out the task. The present
research aims to explore and analyze the various statues and provisions that manage and govern
the maritime trade being carried in India within and outside its territory. It is very important to
find out whether the existing provisions are self-sufficient effective to regulate the maritime
sector with the view that the country earns a huge chunk of its revenue by the maritime sector.
This research is doctrinal research dealing with data collected from primary sources like for
e.g. International Conventions, Recommendations, Treaties, etc. Also, some recognized
sources such as commentaries by legal luminaries, Articles from Journals, articles from
websites on the internet, book reviews, newspapers, periodicals, etc., have been minutely
referred by the researcher.

INTRODUCTION

India, being surrounded by around 7500 km of water and coastlines, it has a responsibility to
bestow justice where it’s jurisdiction in the water lies. It has an indigenous maritime history
since before Independence. It deals in various trading and non- trading practices through the
water within and beyond the boundaries of the nation. The nation covers almost ninety percent
of the nation’s trade volume dealt in seas. The sea has always a domain without any rules or
laws governing it. It is a difficult task to keep it policed due to its undefined boundaries, unlike
the air and land. But, looking at the present scenario, where huge investments are being poured
in the maritime sector, there needs to be a nation well- equipped with the laws and rules that
help manage the growing challenges arising in the maritime sector. Maritime laws are the laws
that include both the domestic and international private laws that govern the transactions
happening in the sea between the private entities. It is a law that includes various transactions
happening on the ship like ship financing, carriage of goods and passengers by the sea, laws
regarding the ownership of the seas, sale and building contracts, liability laws, the laws of
collision, custom and the port laws, etc. these various laws come under the ambit of certain
legislation. Generally, a ship during its voyage is a subject matter to many disputes. Moreover,
these disputes may arise due to collision between the ships, or due to contracts, or loss of life
and property during the voyage, etc. Thus, numerous legislations under the law of the sea
govern such transactions and establish a smooth flow of the maritime industry.

ORIGIN OF INDIAN MARITIME LAW

The genesis of the present maritime laws in India lies in the acts such as the Territorial Waters
Jurisdiction Act, 1878, the Admiralty Offences (Colonial) Act, 1849, the Coasting Vessels Act,
1838; the Inland Steam vessels Act, 1917; the Indian Registration of Ships Act (1841)
Amendment Act , the Colonial Courts of Admiralty Act,1890 etc. All the acts belonged to the
British colonial era. Later, to determine the various issues arising in the maritime sector, Letters
Patent,1862 was drafted to provide powers of adjudicating the disputes arising out of maritime
transactions in India. Later, the Colonial Courts of Admiralty Act, 1890 was passed by the
British Parliament which in turn led to the establishment of the Colonial Courts of Admiralty
(India) Act,18911. The act provided the jurisdiction to the three High Courts, the High Court
of Bombay, Madras and Fort Williams of Bengal to handle the disputes arising in the territory
of India in the maritime sector. This court gave the powers to the High Courts to be the courts
of Admiralty and was given all the powers and autonomy as was enjoyed by any Admiralty
court of British India, England. But the Indian courts were still restricted to claim the things
provided under the above-mentioned British laws.

In the case of Enrica Lexie2, confusion regarding the jurisdiction led to a spat between India
and Italy. The rattle between two governments eventually could not be easily solved and
eventually the formation of a special court to try the matter as the matter got more confusing.
It could be presumed that the legal system was not prepared to handle such a case under its
laws. Although Enrica Lexie was the first case of this type arising in the country, having a look
at the existing laws relating to marine and seas, and the earlier and anarchical colonial statutes
stresses a need to make amendments and reform such maritime laws.

Post- independence, in 1993 with the arrival of the decision of the case of M. V. Elizabeth3, it
was held that the High courts have inherent powers to choose their jurisdiction and provide
justice and equity in the cases where the statute is silent and some judicial interference is
required. Therefore, the High courts were made the courts with unlimited jurisdiction post the
Elizabeth judgment. Later, a bill was passed in the parliament in the year 2005 to pass the
Admiralty Act,2005 to control and manage all the maritime transactions, jurisdiction, etc. under
its purview and repeal all the pre-existing British colonial laws. Although, it was summarily
rejected.

1
The Colonial Courts of Admiralty (India) Act,1891, No. 13, Acts of Parliament, 1891
2
Republic of Italy v Union of India (2013) 4 S.C.C 721
3
M.V. Elisabeth And Ors vs Harwan Investment and Trading Pvt. Ltd. 1993 AIR 1014, 1992 SCR (1)1003
AN ANALYSIS OF THE EXISTING MARITIME LAWS-

I. MERCHANT SHIPPING ACT, 1958 (MSA)-

The Merchant Shipping Act 4was brought into effect immediately after the independence
in the year 1958 to foster and maintain the marine waters where the trade was being carried
on. The coming into force of this statute led to the repealing of the previous statues in toto.

The MSA accommodates itself with various provisions such as one regarding the
registration of the Indian ships, which was not included under any of the earlier laws.
Moreover, the act has been divided into twenty-four parts, each part where deals with
certain specific provisions relating to the shipping. Furthermore, the MSA also contains
under its purview the provisions for safety and load line, it also fixes liability in the cases
of collisions and accidents that occur on the sea, and liability for causing pollution of the
sea. The provisions of the act limit the liability protect the owner of the ship against larger
claims that exceed the actual value of the ship or the cargo, and other miscellaneous
provisions which makes it easy to carry on the shipping or marine practices forward.

Although it seems that this act has a broad range covering all the aspects of maritime
shipping, there still are problems with its applicability. Some provisions of this act have
been strictly carried on from the older laws and are outdated in comparison with the laws
of the other countries. Thus, the applicability of the act is questioned.

In the case of Shanmughavilas Cashew Industries5 it was stated by the Hon’ble SC that a
statute would extend territorially all over the country and also to the territorial waters and
places where the intention to that effect is seen. Thus, the parliament of Indian does not
have the power to extend its jurisdiction to the foreign vessels or ships on the high seas.
Further, it was concluded that the Indian statues, such as the MSA are ineffective and
unworthy concerning the foreign property or persons out of its jurisdiction.

Similarly, in the case of Sabeeha Faikage and Ors. Vs Union of India6, where ten people
mysteriously disappeared from the ship belonging to Saint Vincent and Grenadines, the SC
held that the there are certain loopholes in the MSA which needs to be considered by the

4
The Merchant Shipping Act,1958, No. 44, Acts of Parliament,1958(India)
5
British India Steam Navigation Co. v. Shanmughavilas Cashew Industries (1990) 3 S.C.C 481, 1990 SCR (1)
884
6
Sabeeha Faikage and Others v. Union of India and Others, (2013) 1 S.C.C 262
 concerned authorities and actions needs to be taken to amend the provisions and rules stated
in the act.

In the case of the Research Foundation for Science v. the Union of India7, the facts were
that many foreign countries came to India only to dismantle their ships. This, in turn, caused
various health hazards to the people surrounding that area as it led to the emission of various
dreadful and dangerous chemicals. The case gained mass public attention because the
government of India regulated the entry of ships purely for ship breaking. The court in the
said case stated that it is up to the state government and the other concerned authorities to
allow or disallow the entry of any ship in the territory. Thus, there was no positive remark
given by the court to eliminate the problem of pollution. It is found pertinent to suggest that
adequate procedures for maintaining the ships must be taken care of so that it increases sea
trade and commerce inside the country and other countries too.

Concluding and analyzing the MSA, it has been found that the omissions and loopholes in
the act must be taken care of through new amendments and reforms and steps must be
further taken to ensure smooth and efficient applicability of the act.

II. THE INDIAN CARRIAGE OF GOODS BY SEA ACT, 1925(COGSA)8-

The carriage of goods by sea from the port of India to any other port in India or outside
India under the bill of lading or any other similar document is governed by COGSA. The
act has come into being by the suggestions of the International Conference on Maritime
Law, 1922. This act governs the rights and responsibilities of the parties such as cargo
shippers and ship- owners in matters relating to marine shipments.

Furthermore, the act imposes certain duties and liabilities of the carriage of goods that
carries goods in the marine water from the Indian port. These duties and liabilities are
defined to protect both the parties from incurring any loss arising out of the obligations to
each other. Also, it can be noted that the substantive rights and liabilities defined under
COGSA apply both to foreign and Indian jurisdiction, unlike the MSA,1958. Under Article
III of the act, all the rights and liabilities have been mentioned comprehensively, one being
that the carriage or the ship will be free from all the liabilities for any damage caused until

7
Research Foundation for Science Technology and Natural Resource Policy vs Union of India And Others
(2005) 10 S.C.C 510
8
The Indian Carriage of Goods by Sea Act, 1925, No. 26, Acts of Parliament,1925
 unless a suit is brought within a limited period of a year after the delivery of the goods so
made.

Upon the following clause, the case of the East and West Steamship v. S. K. Ramalingam
Chattier9 is based. In the following case, the SC held that this clause does not only limit
the rights of the party at loss but also extinguishes its rights of the plaintiff to go beyond
the loss- maker to recover for the loss. Thus, this clause was held unproductive.

It can be thus said that the provisions of the COGSA need an amendment to ensure the
proper and smooth carriage of goods in waters from India to elsewhere. This would also
lead to the protection of rights and liabilities of the parties in a better way and to an extent
reduce the level of crime that has grown in the high seas.

III. MARITIME ZONES OF INDIA (REGULATION OF FISHERY BY FOREIGN

VESSELS) ACT, 198110

The act regulates the fishing in territorial waters of India by the foreign vessels and the
matters relating to this. The MZIA has been enacted to protect the Indian territorial waters
and especially the economic zones from losing their marine resources and stopping its
exploitation by any Indian or foreign national. The act restricts any foreign national to carry
on the activity of fishing in the Indian waters until unless a license regarding the same has
been granted by the Government of India under the MZIA.

Further, various chapters and provisions under the act are given to describe the procedure
regarding the issuance and application of the license. Moreover, the Act also empowers
police officials of the concerned coastal states to take action against such activities
happening. Thus, the scope of controlling such activities that lead to the exploitation of
marine living resources is controlled on a wider scope. The punishments defined under the
act does not only include confiscation or capturing of the vessel but also a fine up to fifteen
lakh rupees and imprisonment up to 3 years.

While the Act controls poaching in the seas and other things, there are certainly other
activities such as unauthorized use of a vessel lying on the offshores, unauthorized security

9
The East and West Steamship Company, George Town, Madras v. S. K. Ramalingam Chettiar. (And
Connected Appeal) A.I.R 1960 S.C. 1058.
10
Maritime Zones of India (Regulation of Fishery by Foreign Vessels) Act, 1981, No. 42, Acts of Parliament,
1981.
concerned problems that could create a loss to India, etc., that are not covered under MZIA
or any other act or provision. Instead of these provisions, it could be analyzed that fishing
has increased tremendously and thus the MZIA needs to be further made prone to
amendments to as to make it more effective and make people adhere to it strictly.

The biggest drawback that seems to have been present is that there is legislation to prevent
the activity of fishing by the foreign vessels but not by the Indian vessels and ships. This
might be considered as the biggest grey area of this law as there will still be the practice of
fishing prevailing in the seas. Thus, there is a vital need to establish a law or a provision
prohibiting this nefarious activity of fishing.

IV. MULTIMODAL TRANSPORTATION OF GOODS ACT, 1993-

The MTG Act came in the year 1993 as a result of the growing advancement in the
technology relating to the transport of the goods from India to elsewhere. The aim behind
setting up of the act was to eradicate and reduce the hindrances in the movement of goods
in the water and also improvising the transport system to enhance the movement of goods
by the way of reduction of costs.

Moreover, the Act has also amended the Carriage of Goods by Sea Act, 1925. The important
changes brought about by the Multimodal Transportation of Goods Act, 1993 are e.g., a) it
provides for parties to agree on the extension of the one year period to bring suit for cargo
claims; b) it has increased the per package limitation to bring the Carriage of Goods by Sea
Act, 1925 in line with the Hamburg Rules.

The MTG act recognizes all the modes of transports that are done under a single transport
document and also fixes the liability of the operator to the cargo or shipowner. To get the
multimodal transport registered by the competent authority, it is a tedious and lengthy task
to accomplish. Certain criterions must be satisfied to get the transporter registered to transfer
the goods. Furthermore, the MTG act also provides for a jurisdiction clause that defines the
jurisdiction under which the action can be initiated against the transporter.

It can be however seen that the MTG act too has many loopholes. Due to the various means
of transport present, the process of litigation becomes a cumbersome and lengthy one for
the transport operators and other parties as they do not have experience or knowledge
dealing in the same subjects. Hence, this creates a monopolistic trade environment, letting
 the big players litigate and dissuading the small players to do so. Hence, institutions of suits
should be limited to the procedures set out strictly under the Code of Civil Procedure to
avoid any ambiguity.

Furthermore, due to the increasing use of multimodal transport operators in the shipping
arena, the companies have started to outsource the logistics requirements to a third party
which is thus not included under the purview of the MTG Act. Hence, it is suggested that a
productive amendment must be passed to ensure an effective flow of both raw and finished
goods all over the world.

V. TERRITORIAL WATERS, CONTINENTAL SHELF, EXCLUSIVE ECONOMIC

ZONES AND MARITIME ZONES ACT, 1976

The TWCS Act came into effect in the year 1976 by the suggestions of the United Nations
Convention on the Law of the Sea, Geneva. This act specified and confirmed that the land,
resources beyond the territorial waters of India are the exclusive property of India and it has
jurisdiction over it. This Act also clearly defined the Indian and foreign boundaries and set
up a firm jurisdiction of the nation. Its aim was to prevent the exploitation of natural
resources present under the territorial waters of India and hence preserve and conserve it
within its maritime zones. The act mainly prescribes the limits of the territorial waters, the
continental shelf and the Exclusive economic zones belonging to the jurisdiction of India.

The Act overtly provides that whoever contravenes any provisions of the Act or of any
notification thereunder is, without prejudice to other action which may be taken against such
person under any other provision of the Act or of any other enactment, be punishable with
imprisonment which may extend to three years or with fine, or with both.11The punishment
acts as a deterrent to not contravene the provisions of the act, but the act necessitates
amendment. The government must sanction beforehand the criminals are prosecuted for the
offense without providing a time-line within which the approval is granted or rejected, thus
making the procedure easy. Also, through various cases it is made evident that Indian legal
system is not prepared for certain events for e.g. the Enrica Lexie case, the Italian diplomats
were keen on citing provisions of United Nations Convention on Law of the Sea, 1982 to

11
S. 11, Territorial Waters, Continental Shelf, Exclusive Economic Zones and Maritimes Zones Act, 1976
 counter Indian laws and our demand for a trial in India. It is also unfortunate, that India has
also not adopted some significant International Conventions like the Geneva Convention on
the Arrest of Ships, 1999, thereby leaving our courts with no option but to rely on the
colonial statutes of previous centuries.12 Further changes necessary will not only form the
backbone to effective implementation of maritime security in India but also help to curb
terrorism in the country as the Indian navy and coast guard, along with the coastal police
force will then have the power to search and seize vessels, without prior approval of the
Government.

Maritime law has gone through different times passing from the earlier time to the modern
ones. Various amendments and changes took place since the time they have been codified
and adopted from the early British statues such as the Colonial Courts of Admiralty
Act,1890, etc. The Indian legal system needs to take reform and adopt new laws to have a
stand of its own.

CONCLUSION

Indian economy is booming up with the maritime sector as it forms 4/5 parts of the nation’s
total GDP. The Maritime and Admiralty laws the govern the trade and commerce in the
territorial waters are of heavy importance as they regulate that important element of the
economy wherein the nation earns most of this income and revenue and is the most advanced
as compared to the other nations. In the current document, various statues relating to

maritime law have been analyzed such as MSA, COGSA, MZIA, TWCS, etc. it has been
found that none statute has perfect applicability and certainty and thus has many grey areas
and loopholes. To cope up with and reform the statues, the Admiralty Bill, 2005 was
introduced in the Parliament which was seen as a way of reunification of all solutions to
India’s Maritime Law Dilemma. But unfortunately, it was summarily rejected and no further
chance of reintroducing can be seen. The aim of the bill was to redress the problem relating
to admiralty jurisdiction of ,vesting of civil jurisdiction in respect of various maritime claims
in high courts, power of the supreme court to transfer any proceedings from one high court
to another, power of the high court to confer admiralty jurisdiction in consultation with the
Chief Justice of India on any civil court of the state, legal proceedings in connection with

12
Jithin Paul Varghese, Reforming Maritime Laws in India, (Nov. 17, 2019 8:00 PM)
http://www.mindtext.org/view/132/Reforming_Maritime_Laws_in_India/
ships, their arrest, detention, sale and other related matters. But this bill was not easily
accepted by the society and hence, faced too many rejections and oppositions alleging it to
be a regressive piece of the Indian legal system.

Thus, to enhance and effectuate the amendments and reforms in the maritime sector, the
consensus is needed. This would to see that the enormous potential of the country’s shipping
industry and the safety and control of its maritime seas and lanes are taken care of.

Furthermore, various steps are also being taken by the government of India to cope up with
such problems and enhance the smooth and effective functioning of the maritime sector
through various laws. From the construction of new ports to the introduction of various
schemes, the efforts are multidimensional due to which the interference of the law is
unavoidable. Thus, there is also a need to facilitate the smooth coordination and functioning
of the various factors that help in the management of the maritime laws.
BIBLIOGRAPHY

E- BOOKS-

1. MARITIME LAW AND ADMIRALTY JURISDICTION: HISTORICAL

EVOLUTION AND EMERGING TRENDS -by Proshanto K. Mukherjee

ARTICLE/ JOURNAL ARTICLE

1. CODIFYING MARITIME LAWS IN INDIA – by Jithin Paul Varghese

http://www.mindtext.org/view/88/Codifying_Maritime_Laws_in_India

2. REFORMING MARITIME LAWS IN INDIA- by Jithin Paul Varghese

http://www.mindtext.org/view/132/Reforming_Maritime_Laws_in_India/

3. ADMIRALTY LAW IN INDIA-A HISTORICAL PERSPECTIVE- by Nishaan Shetty