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24 June 2019
"The safety of the people shall be the highest law" - Marcus Tullius Cicero
India has a long-standing history in dealing with the sea and has had a
distinguished tradition for several years with trade and commerce, both within
the region and beyond its territorial borders. India's maritime history dates back
to 3rd millennium BCE, and since then many ships have sailed from India and,
to India. Therefore, though there was no codified law as the one which exists
today, the customs and regulations concerning sea and maritime activities have
been in existence since time immemorial.
This article analyses the Maritime Law of India and the Law relating to ship
arrests, including the jurisdiction, permissible claims and procedural aspects of
ship arrests in India.
Before Independence, the Law relating to maritime laws in India were governed
under the British government. The Coasting Vessels Act, 1838, Inland Steam
Vessels Act, 1917, Admiralty Offences (Colonial) Act, 1849, Indian Registration
of Ships Act, 1841, Indian Ports Act, 1908, Control of Shipping Act, 1947 are
some of the regulations which deal with various aspects of maritime in India.
In simple words, Maritime Law is a set of rules and regulations which govern the
matters relating to sea and ships. It is also known as admiralty law. Numerous
legal luminaries have provided their definition of the term 'maritime law.' Some
of them are as follows:
Professor Grant Gilmore and Charles L. Black, in their 'Law of Admiralty', define
maritime or Admiralty Law as the following:
''A corpus of rules, concepts and legal practices governing certain centrally
important concerns of the business of carrying goods and passengers by water.''
Black's Law dictionary defines maritime Law as- "the body of law governing
marine commerce and navigation, the carriage at 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."
The definitions, given above covers wide range of activities concerning the sea,
however now with the evolution of Law, the Maritime Law is comprehensive,
and it is that branch of jurisprudence which covers all the matters relating to sea
and ships.
Ship Arrest
Rationality
A ship arrest may be exercised under the authority of a court having admiralty
jurisdiction, for the following reasons:
Loss of life
Loss of property
Salvage
Collision
Execution of a decree
Violation of customs, usages, regulations or norms
Before India gained Independence, under The Colonial Court of Admiralty Act,
1890, the High Court of Bombay, Madras and Calcutta were the only judicial
authorities competent to deal with matters relating to Admiralty. The other courts
of justice were restricted from dealing with issues concerning the Admiralty.
Under the Admiralty Courts Act, 1861, the three presidency courts were vested
with the same powers as that of the High Court of England.
Section 35 of the Admiralty Courts Act, 1861 deals with the jurisdiction of
Admiralty court, and it reads as the following:
"35. The jurisdiction conferred by this Act on the High Court of Admiralty may
be exercised either by proceedings in rem or by proceedings in personam."
The Law relating to Admiralty jurisdiction is relevant even today under Article
372 of the Constitution of India.
"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."
"The High Court in India are superior courts of record. They have original and
appellate jurisdiction. They have inherent and plenary powers. Unless expressly
or impliedly barred, and subject to the appellate or discretionary jurisdiction of
this Court, the High Courts have unlimited jurisdiction, including the jurisdiction
to determine their powers."
Further, in this case, the International Convention for the unification of some
rules regarding Arrest of Sea-going Ships (The Arrest Convention), 1952 was
also made applicable to India, although it was not ratified.
Similarly, In M.V Sea Success case, the Supreme Court held that the principles
laid down in 1999 Geneva Arrest Convention could be applied in India on matters
concerning Admiralty.
Therefore, now the scope of admiralty jurisdiction has been widened, and apart
from the presidency courts, the following courts (coastal regions) have
jurisdiction to deal with admiralty matters:
Permissible Claims
The High Courts' as discussed earlier, has the jurisdiction to entertain claims as
provided under Article 1 of the Arrest Convention, 1952 and Article 1 of the
Geneva Arrest Convention, 1999. Therefore, before the enactment of the
Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the claims
were as provided under the conventions as discussed earlier. However, now the
Law relating to Maritime claim is provided under section 4 of the Admiralty
(Jurisdiction and Settlement of Maritime Claims) Act, 2017.
"The High Court may exercise jurisdiction to hear and determine any question on
a maritime claim, against any vessel, arising out of any
Procedure
The Law relating to the arrest of a vessel in rem is provided under Section 5 of
the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.
Under the section, the High Court may order for the arrest of any vessel within
its jurisdiction, where there is a reason to believe:
Once the claim has been decided, the claimant has to state the detailed facts, along
with the other particulars and must make application for the substantive suit. The
Admiralty suit should specify:
Once an arrest warrant is issued upon a vessel, the owner of the vessel has to
appear and settle the claim or challenge the arrest made. The vessel may be
allowed to sail subject to furnishing of security for the claim. At the default of the
owner, the ship can be sold, and the sale proceeds may be used to settle the claim.
Therefore, the Law relating to ship arrest is now well settled in India. The
admiralty law is an area of development, and it plays an inevitable role in
protecting the citizens as well as ensuring that no organization or individual
violates the Law of the sea.
The content of this article is intended to provide a general guide to the subject
matter. Specialist advice should be sought about your specific circumstances.