MARITIME LAW ASSIGNMENT

NAME- ROBIN SINGH BISHT

COURSE – B.A.LL.B
ROLL NO- A-89
8TH SEMESTER
TOPICS
1- CONCEPTS OF MARITIME LAW
2- ARREST OF SHIP AND THE
BRUSSELS CONVENTION OF
ARREST OF SHIPS
3- BILL OF LADING

Question-1 Concept of maritime law

DEFINITION
Maritime law, also known as admiralty law, is a body of laws, conventions, and
treaties that govern private maritime business and other nautical matters, such
as shipping or offenses occurring on open water. International rules, governing
the use of the oceans and seas, are known as the Law of the Sea.

Understanding Maritime Law

In most developed nations, maritime law follows a separate code and is an
independent jurisdiction from national laws. The United Nations (UN), through
the International Maritime Organization (IMO), has issued numerous
conventions that can be enforced by the navies and coast guards of countries
that have signed the treaty outlining these rules. Maritime law governs many
of the insurance claims relating to ships and cargo; civil matters between
shipowners, seamen, and passengers; and piracy.

Additionally, maritime law regulates registration, license, and inspection

procedures for ships and shipping contracts; maritime insurance; and the
carriage of goods and passengers. The IMO (established in 1948 as the Inter-
Governmental Maritime Consultative Organization, and coming into force in
1958) is responsible for ensuring that existing international maritime
conventions are kept up to date, as well as developing new agreements as and
when the need arises.

Today, there are dozens of conventions regulating all aspects of maritime

commerce and transport. The IMO names three conventions as its core:

The International Convention for the Safety of Life at Sea

The International Convention for the Prevention of Pollution from Ships

The International Convention on Standards of Training, Certification, and

Watchkeeping for Seafarers

International Maritime Organization (IMO)

The International Maritime Organization is an international organization
mandated to regulate and govern maritime affairs at global level. Its main task
is to facilitate international agreements on issues of relevance, regulate
maritime affairs and provide the technical expertise on important subject
areas. The official website of IMO provides the following information about the
scope of its function: 

The majority of conventions adopted under the auspices of IMO or for which
the Organization is otherwise responsible, fall into three main categories. The
first group is concerned with maritime safety; the second with the prevention
of marine pollution; and the third with liability and compensation, especially in
relation to damage caused by pollution. Outside these major groupings are a
number of other conventions dealing with facilitation, tonnage measurement,
unlawful acts against shipping and salvage, etc.

Why should one study Maritime Law? 

There are many reasons why one should choose to study Maritime Law:

History of Civilizational Interactions – maritime commerce paved way for one

of the first civilizational interactions (Vasco da Gama, Christopher
Columbus, John Selden, Hugo Grotius etc.) 

Interdisciplinary Understanding – exposes one to the geographical world of

sea-routes, mechanics of ship-functioning, history of human trade and
suffering etc. 

Maritime Trade and Commerce – maritime commerce remains one of most

prominent forms of international trade [trade in Indian spices since centuries,
RP Anand, Origin and Development of the Law of the Sea (Martinus Nijhoff,
1963),

Prospects of Growth – the bulk of commercial transaction through sea holds

great economic potential (90% of world’s trade happens through sea route –
see here).

Never a Dull Moment – sea offers an open space; and who wishes to look the
other way!
Learning Maritime Law also has an emotional appeal – an appreciation for sea-
life which is hardly experienced by most of the world’s population; the joy of
adventure being on/surrounded by the ship; openness of thought and
expression being exposed to the world of endless opportunities

Concept of maritime law

-Maritime law is the private law of navigation and shipping.

-It is a special set of rules governing contract, tort (such as personal injury), and
workers -compensation claims arising from injuries sustained on or over
navigable water.

-This can include incidents that occur on inland waters or at sea. Maritime law
regulates such things as shipping, navigation, recreational boating, towing,
and commerce on both domestic and international waters.

-This includes natural seas, lakes, and waterways as well as man-made

navigable waters such as canals.

-Maritime law also includeS :-

A-body of laws

B-conventions

C-treaties
QUESTION-2 ARREST OF SHIP AND THE
BRUSSELS CONVENTION OF ARREST OF
SHIPS
Introduction
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 BC, 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. 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 Was 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.

Meaning
Ship arrest is a process by in which a ship is prevented from trading or moving
until the matter in question is decided. It is an exclusive jurisdiction that is
granted to an admiralty court to detain a vessel to secure a maritime claim.

Article 2 of the International Convention Relating to the Arrest of Sea-Going

Ships, 1952 defines the term arrest as the following:-

Arrest means the detention of a ship by judicial process to secure a maritime

claim, but does not include the seizure of a ship in execution or satisfaction of
a judgment.

Concept of ship arrest

Ship arrest is a process by in which a ship is prevented from trading or moving
until the matter in question is decided. It is an exclusive jurisdiction that is
granted
to an admiralty court to detain a vessel to secure a maritime claim.Arrest of a
vessel is part of the process by which an Admiralty Court gains jurisdiction over
the subject matter of a law suit. These lawsuits are known as "in rem" actions
meaning that the action is again a thing" rather than a person.

Procedure of ship arrest

-Any domestic of foreign ship may be arrested in the jurisdiction of

the authority of a Court or an appropriate judicial authority in respect of any
maritime claim only and essentially no other claim.

-In its esteemed a claimant may ask for a ship arrest for a particular claim.

-A ship within the same jurisdictions cannot be arrested more than once by the
same claimant.

-The Admiralty jurisdiction is exercised by the Coastal States in India under the
Colonial Courts of Admiralty (India) Act, 1891. The Arrest Convention, 1952 as
well as Arrest Convention, 1999 would be considered for the purpose of
ascertaining whether a particular claim is a maritime claim. 

-Application for arrest of the ship is made ex-parte unless a third party has filed
a Caveat against the arrest. 

 -The ship would be released from arrest when security in the form of Bank
Guarantee or cash deposit is made with the Registry. Ship could also be
released from arrest if, on an application made on behalf of the ship, the Court
holds that the arrest is not maintainable.

-If security is not furnished, the Claimant is entitled to take steps to sell the
ship. The Court would order the sale of the vessel through public auction after
the ship is valued by a professional surveyor.
-Once the ship is sold, the sale proceeds are deposited in Court. If the sale
proceeds are insufficient to satisfy the claim of all the Claimants, the Court
would decide the priorities in which the sale proceeds would be distributed. 

-The Statutory dues would have the first priority followed by Wages of the

crew and Master, Salvage, Mortgage and all other claims would thereafter
rank pari passu

Case law
(M.V.Elizabeth & Ors. v/s. Harwan Investment and Trading Pvt. Ltd.

Supreme Court held that the Admiralty jurisdiction of the High Court would be
considered to have been progressed at least upto the level of (English)
Supreme Court of Judicature (Consolidation) Act, 1925 which was the last of
the series of enactment in England on the subject prior to the year 1947
when India became independent.  

The Supreme Court further took cognizance of the Arrest Convention, 1952

and held that such Convention itself has been enacted based on the felt
necessities of the International trade and therefore made it applicable in India
for the enforcement of maritime claims against foreign ships.

Significance of Brussels convention

-The Brussels convention of 1952 relating to arrest of sea-going vessels has
become a popular international instrument in the second part of the present
century but to some such amount of popularity was unpredictable at the time
convention was adopted.

-It is more than apparent that there is a wide gap between the pratical
performance of the convention and the expectations that were raised at the
time it was made.

-The Arrest convention has particularly shown that an international

instruments providing for the detention of ships in parts before they may leave
such ports.
CONCLUSION

Our country ratified the 1952 Convention. During ratification, it used the right
to enter a reservation not to apply the provisions of the Convention, but its
own right when it comes to disputes about ownership of the ship. It was then
understandable considering the so-called state (public) ownership of ships in
that period. However, that reason is not valid any more. In the remaining part,
the Convention was ratified without reservations, which included its
implementation as a whole, with no additional changes or modifications. The
right to arrest the ship is incorporated in our law and is still in the Law on
Maritime and Inland Navigation, which represents a positive piece of
legislation in Montenegro. Although Montenegro, following its independence,
started creating a new maritime legal framework in a way that certain areas of
the Law on Maritime and Inland Navigation are to be separated and regulated
by special laws, a new legislation in this matter has not been adopted yet. In
addition, we believe that, although Montenegro has not ratified the 1999
Convention, it would be useful to take into account and to accept a solution
which that Convention provides as the protection of ship owners from
excessive claims of creditors during the arrest of ships
QUESTION-3 BILL OF LADING
Meaning of bill of lading
Bill of lading is defined as a printed or written statement of the cost for the
goods or services delivered or to be delivered. The term “ lade” means to put
the cargo onto a ship or other form of goods carrier. Thus, a bill of lading in
shipping is a record of the traded goods which have been received on board. It
is a document that establishes an agreement between a shipper and a
company for the transportation of goods. Transportation Company (carrier)
issues these records to the shipper. A bill of lading indicates a particular carrier
through which the goods have been placed to their final destination and the
conditions for transporting the shipment to its final destination. Land, ocean
and air are the means used for bills of lading.

A bill of lading, therefore, is a very important issue when making shipments to

move the cargo or freight from one point to the other. On one hand, it is a
contract between a carrier and shipper for the transportation of goods and on
the other hand, it serves as a receipt issued by a carrier to the shipper. Hence,
the bill of lading is considered a legal document which provides all the vital
details to the shipper and the carrier to conveniently process the freight
shipment through different maritime countries and invoice it correctly.

The Importance of Bills of Lading

The carrier need not require all originals to be submitted before delivery. It is
therefore essential that the exporter retains control over the full set of the
originals until payment is effected or a bill of exchange is accepted or some
other assurance for payment has been made to him.

A bill of lading, therefore, is a very important issue when making shipments to

move the cargo or freight from one point to the other. On one hand, it is a
contract between a carrier and shipper for the transportation of goods and on
the other hand, it serves as a receipt issued by a carrier to the shipper.
Hence, the bill of lading is considered a legal document which provides all the
vital details to the shipper and the carrier to conveniently process the freight
shipment through different maritime countries and invoice it correctly.

Purpose of Bill of Lading

The bill of lading document is meant to act as a transport document enacting
as the evidence of the contract of carriage of the goods.  A negotiable bill of
lading has the following legal qualities:

It acts as a piece of evidence for the carriage contract containing the terms and
condition under which the goods transportation will be carried out

It represents as a receipt which endorses that the carrier has received the
cargo as per the contract and the goods are received in good condition.

It is a document of title, permitting the sale of goods in transit and the raising
of financial credit.

Most of the local and international system does not consider a bill of lading as
a document of title. It provides the right for the delivery to be made to the
possessor

Types of Bill of Lading

The bill of lading can be classified on the basis of “how it is executed” and
“Method of operation”-

On the basis of execution:

1. Straight bill of lading reveals that the goods are consigned to a specified

person and it is not negotiable free from existing equities. It means any
endorsee acquires no better rights than those held by the endorser. This type
of bill is also known as a non-negotiable bill of lading, and from the banker’s
point of view, this type of bill of lading is not safe. This type of bill is
prominently used for military cargo.

2. Open bill of lading – This is a negotiable bill of lading where the name of
Consignee can be changed with consignees’ signature and thus transferred.
This can be transferred multiple times. Switch bill of lading is a type of open bill
of lading.

3. Bearer bill of lading - is a bill that states that delivery shall be made to
whosoever holds the bill. Such bill may be created explicitly or it is an order bill
that fails to nominate the consignee whether in its original form or through an
endorsement in blank. A bearer bill can be negotiated by physical delivery.
They are used for bulk cargo that is turned over in small amounts.

4. Order bill of lading is the bill uses express words to make the bill negotiable.
This means that delivery is to be made to the further order of the consignee
using words such as “delivery to A Ltd. or to order or assigns. The cargo is only
delivered to the bonafide holder of the bill of lading, and it has to be verified
by an agent who issues delivery order and the verified bill of lading. The order
bill of lading:

–    is the most modern type bill which is widely used all over the world

–    ensures the safety of delivery of cargo to a bonafide holder of B/L

–    Since the ship visits several foreign ports where the language, practice,
procedures may be different the master might be inconvenienced during the
delivery of the cargo. People might fraudulently collect the cargo.

–    To overcome this difficulty and avoid future cargo claims and litigations, the
consignee or the holder is required to surrender the bill of lading to the ship’s
agent at the discharge port who will verify the genuineness of the bill of lading.
When satisfied the agent will issue a delivery order and the verified bill of
lading. Now any person can collect the cargo from the ship by surrendering the
bill of lading and the delivery note to the ship.

As the bill of lading is made to “to order” of the consignee, it is a negotiable

instrument of title. This means that the ownership of the bill of lading can be
transferred from one person to another by authorising signature and delivery
of the bill of lading.

All goods which have not been paid in advance and are shipped under “To
order” of the bill of lading can be categorised into two types:
To Order, Blank Endorsed: not consigned to any named party but ‘To Order’ of
the consignor, with the intended – consignee’s name given under ‘notify
party.’ The consignor must stamp and sign (endorse) this B/L so that its title
can be transferred.

To Order, Bank: consigned to a bank with the intended consignee’s name

given under ‘notify party.’ The bank endorses the B/L to the intended
consignee against payment of (or a pledge to pay) the amount of the
accompanying bill of exchange. ‘To Order’ B/Ls are used commonly in the letter
of credit transactions and may be bought, sold, or traded, or used as security
for borrowing money from banks or other lenders.

Contents of Bill of Lading:

The bill of lading comprises of the following details:

-The complete name and official address of the receiver and the shipper.

-The Purchase orders or special reference/ invoice numbers which helps the
shipper and the consignee to release the goods for pickup or accepted at
delivery

-The date of the pickup which acts as a reference to track the freight

-The details of the item including the number of unit being shipper, weight and
dimension of the product, along with the nature of the cargo being carried, i.e.
dangerous goods etc.

-If the goods are hazardous, Department of Transportation hazardous material

designation is tagged, and it is cited on the bill to follow special rules and
requirements when shipping

-The details of the packaging used such as crates, palates, cartons, pills, drums
etc.

-Any special notes or instruction for the carrier

Concept of Bill of lading

-The bill of lading is a required document to move a freight shipment. The bill
of lading (BOL) works as a receipt of freight services, a contract between a
freight carrier and shipper and a document of title. 

-The bill of lading is a legally binding document providing the driver and the
carrier all the details needed to process the freight shipment and invoice it
correctly.

Function of Bill of Lading

-Making the carrier responsible for goods

-An individual wishing to ship a consignment of goods overseas approaches

a shipping line by reserving space on the vessel.
- This may be done directly or through an agent.

-The carrier then instructs the place and time of delivery of the goods and the
individual is then issued with a receipt indicating the type and quantity of the
goods and the condition in which the carrier’s agent received them.
 
-Then, the carrier is responsible for the goods.

-The shipper , meanwhile, gets a copy of the carrier’s bill of lading form. He will
enter details regarding the type, quantity of goods shipped together with any
relevant marks, the port of destination and the name of the consignee. 

-The carrier’s agent will check the cargo details against the tallies at eh time of
loading and will acknowledge them.

- The freight will be calculated and then the bill will be signed and will be given
to the shipper.
 
-The shipper may then directly dispatch the bill to the consignee or through a
bank in the case of international sales contract by documentary credit.
-The consignee may decide to sell the goods while in transit then he may
indorse
the bill in favour of the purchaser. 

-Eventually the consignee or indorsee will surrender the bill at the port of

discharge in return for delivery of the goods.

Bill of lading as a receipt

-When the bill of lading in the hands of the shipper, it becomes a receipt
for the quantity of goods received, the condition of goods received and leading
marks.
 
-However, the evidentiary value of the bills in all these cases is not the same in
all case and it depends upon the circumstances of the case such as whether
the bill falls within the Carriage of Goods by Sea Act 1971 or not.

Bill of lading as Contract of Carriage

-The contract between the carrier and the shipper is already created before
issuing the bill of lading when the cargo is loaded on the ship. This is done to
safeguard the shipper in case the cargo is damaged before loading it on board
the vessel and to help the shipper in the claim process. For the carrier and the
consignee, the bill of lading will act as the actual contract of carriage.

-The popularly used conventions and rules which covers the contract of
carriage for carrying goods by sea: