The Admiralty (Jurisdiction and Settlement of Maritime Claims)

Act, 2017

Introduction
To reform the various archaic British laws governing maritime relations
and claims in India was the need in the age of globalised trade and
commerce and this led to the passing of the new law, i.e. The Admiralty
(Jurisdiction and Settlement of Maritime Claims) Act, 2017 is an Act of
parliament of India which came into force on the 1st April, 2018.

Until the enactment of the new Act, the Admiralty Court Act, 1840, the
Admiralty Court Act, 1861, read with the Colonial Courts of Admiralty
Act, 1890, the Colonial Courts of Admiralty (India) Act, 1891 and the
provisions of the Letters Patent, 1865, formed the corpus of admiralty
law which are 126 to 177 years old laws. These have been repealed and
replaced now by the Admiralty Act, 2017.

The Admiralty Act seeks to consolidate the existing laws relating to

admiralty jurisdiction, admiralty proceedings on maritime claims,
maritime lien, arrest, detention, sale of vessels and other connected
matters.

Admiralty law is another name for domestic maritime law and it covers
the maritime questions and offences and the Admiralty Act, 2017
contains 18 Sections and is divided into 04 Chapters.

Applicability
It applies to every vessel in Indian territorial waters irrespective of the
place of residence or domicile of the owner of the vessel.

Inland vessels and vessels under construction that have not been
launched are the exceptions to the applicability of the Act. Further, the
Act doesn’t apply to foreign vessels with a non commercial purpose and
to vessels owned or operated by the government. for any non
commercial purpose.

Admiralty Jurisdiction
Until the enactment of the new Act, the admiralty jurisdiction vested by
the various archaic British laws were on the High Courts of Bombay,
Madras and Calcutta which now with the enactment of the new Act
under Section 3 read with Section 2(1)(e) of the Admiralty Act 2017 also
extends and vests admiralty jurisdiction to High Court of Hyderabad,
Gujarat, Kerala, Orissa, and Karnataka and also, by notification in the
official gazette, the Act allows the central government to extend the
jurisdiction over any other High Court.

Even though each court has admiralty jurisdiction over the territorial
waters of its state there is a lack of clarity as to limits of the territorial
waters of a state. When the Admiralty (Jurisdiction and Settlement of
Maritime Claims) Bill, 2016 was in discussion in the Rajya Sabha, Shri
D. Bandopadhyay, Member of Parliament said on the above matter that
the jurisdiction of the territorial waters needs to be demarcated through
the use of modern technologies such as satellite mapping, geo-special
mapping, etc.

In the landmark case of M. V. Elizabeth & others v. Harwan

Investment Trading Pvt. Ltd. (1992 SCR (1)1003), the Apex Court
decided on jurisdictional uncertainty and ruled that for deciding
matters within India, the High Courts of India hold a superior position
than any other Courts or laws. The Court was also of the opinion that
the High Courts of India have unlimited jurisdiction with inherent and
plenary powers to decide upon their own jurisdiction.

In Kamalakar Mahbadev Bhagat v. Scindia Steamship Navigation

Co. Ltd (AIR 1961 Bom 186, (1960) 62 BOMLR 995), It was held that
a suit for damages by the ship owner against any vessel for collision on
the high seas should be adjudicated by the High Court having
Admiralty Jurisdiction on its Admiralty side, regardless of whether it’s
an Indian vessel or a foreign flag vessel.
In Bai Kashibai & Ors v. Scindia Steamship Navigation Co. Ltd
(AIR [1961] BOM 200, (1960) 62 BOMLR 1017), It was held that a suit
for damages with respect to the loss of life as a result of a collision on
the high seas, whether in rem or personam, falls within the exclusive
jurisdiction of the High Court under its Admiralty jurisdiction.

Maritime Claims
Article 1 of the International Convention on the Arrest of Ships, 1999
set out a list of maritime claims similar to the Admiralty Act, 2017. The
maritime Claims over which admiralty jurisdiction of the High Court
would fall are given under section 4 of the Admiralty Act, 2017 and
includes dispute regarding vessel ownership, possession, mortgage or
any other security created on the vessel, construction, repair of the
vessel, claims regarding the loss of life or personal injury, etc.

The High Court having Admiralty Jurisdiction can order the sale of the
vessel and thereby settle any outstanding account of the parties to the
proceedings. The vessel that would be brought by the purchaser would
be free from all the encumbrances, liens, attachments, etc.

In the case of M.V. Nordlake v. Union of India (2012 (3) Bom CR

510), the Bombay High Court held that the ship owner is liable to
furnish security up to the value of the vessel provided that the value of
the arrested vessel is less than the value of the plaintiff’s claim

Maritime Lien
In Common law, a lien is a right of the creditor to retain the property of
the debtor until the debt is paid.

A privileged claim upon a maritime property or res in respect of services

done to or injury caused by it is a maritime lien. The maritime res can
be the vessel, cargo or freight, etc but not against the owner. If by the
order of the court the vessel is sold then the lien over it won’t exist
anymore. For the period of 1 year, the lien against the owner of the
vessel will continue to exist regardless of change of ownership,
registration or flag.
Section 9 of the Admiralty Act, 2017 lists the categories of maritime
liens and their priorities which are broadly:

1. wages for employment (including repatriation and social insurance

contributions) claim for which extinguishes after two years;
2. loss of life or personal injury claims;
3. reward for salvage services; and
4. port, canal, and other waterways dues, pilotage and statutory
dues.

Jurisdiction over Vessels (Arrest of Vessels) and Persons

Each High Court vested with the admiralty jurisdiction exercises their
power and authority over both vessels within their territorial waters and
persons within their territory. The Act of 2017 specifies the conditions
in which courts can exercise both these types of jurisdiction and is
embodied under Section 5, 6, 7, 8 of the Act.

When it comes to Jurisdiction over a person, the high courts with

the admiralty jurisdiction may exercise their authority against a person
with regards to maritime claims. However, the high courts will not
entertain complaints against a person in certain cases. These include:

1. damage, or loss of life, or personal injury arising out of a collision

between vessels that was caused in India, or
2. non-compliance with the collision regulations of the Merchant
Shipping Act, 1958 by a person who does not reside or carry out
business in India.
Further, if any ongoing case with regards to the same incident is going
on in any court outside India then the high court with the admiralty
jurisdiction in India won’t entertain action against such a person.

When it comes to arrest of a vessel, the high court with the admiralty
jurisdiction may order for the arrest of any vessel within their
jurisdiction for providing security against a maritime claim which is the
subject matter of a court case. They may do so under rationale such
as:
 1. owner of the vessel is liable for the claim,
2. the claim is based on mortgage of the vessel, and
3. the claim relates to ownership of the vessel, etc.
In the case of Liverpool & London SP & I Association Ltd v. MV Sea
Success I ((2004) 9 SCC 512), the Supreme Court held that the
principles laid down in Arrest Convention, 1952 and the Arrest
Convention, 1999 (the “1999 Convention”) would be applicable in India
on the matters concerning Admiralty despite India not being a signatory
to either the Arrest Convention, 1952 or the 1999 Convention.

Conclusion
It is a welcoming change in the Indian Maritime regime that the long-
awaited piece of legislation was finally into force on 1st April, 2018. The
newly enacted Act of 2017 has repealed the various archaic British laws
that were governing maritime relations and claims in India. Also, any
judgment, decree, order passed by the single judge of the high court is
appealable to a division bench of the high court and the central
government shall appoint a list assessors who will assist the judge in
determining rates and claims in admiralty proceedings.

Under the Colonial Courts of Admiralty Act, 1890, only the Chartered
High Courts were vested with admiralty jurisdiction. Under the new Act,
8 High Courts in coastal states could now invoke admiralty jurisdiction
up to the territorial waters of their respective jurisdictions in respect of
maritime claims.

In the light of the passing of the Admiralty Act, 2017, it would be wise
and prudent to re-examine shipping documents to ensure that these
are in conformity with the new law.
Jurisdiction Over Vessels

Prescriptive (or “law-making”) jurisdiction is the authority to make and

apply laws. International law permits a State to exercise varying degrees
of jurisdiction over its flagged vessels, vessels within its ports, and
vessels within its maritime zones (including its internal
waters, territorial sea, contiguous zone, and exclusive economic zone).
These exercises of jurisdiction are derived from principles which are
recognized as customary international law. The exercise of jurisdiction
in each instance is also recognized under the Law of the Sea Convention
(LOSC).

Flag State Jurisdiction

A State may exercise jurisdiction over a vessel that is registered with

the State and flying its flag. This exercise of jurisdiction is based on the
internationally recognized principle that a State may regulate the
conduct of its nationals even when those nationals are acting outside of
the State’s territory. See The Apollon, 22 U.S. (9 Wheat.) 362, 370
(1824)offsite link (“The laws of no nation can justly extend beyond its
own territories, except so far as regards its own citizens.”). Because flag
state jurisdiction depends on the nationality of the vessel, it may be
exercised upon the high seas and within the waters over which a foreign
State exercises jurisdiction.

The granting of nationality to a ship is a matter within the exclusive

jurisdiction of the State concerned. See M/V Saiga (No.2) Case (St.
Vincent and the Grenadines v. Guinea), ITLOS, Judgement of 4 Dec.
1999, Case No. 1offsite link. Therefore, it is up to that State to regulate
by its domestic law the conditions for the grant of nationality. Once a
grant of nationality has been made, a ship may not sail under a
different flag unless it has been sold or the owner changes its
registry. See United States v. Marino-Garcia, 679 F.2d 1373, 1378 n. 3
(11th Cir.1982)offsite link (“A vessel will be deemed stateless where it
sails under the authority of two or more States and uses them
according to convenience.”). Articles 91 and 94 of the LOSC reflect the
exercise of flag state jurisdiction under the Law of the Sea. Article 91(1)
provides that “[s]hips have the nationality of the State whose flag they
are entitled to fly.” Article 94(4) affirms that “[e]very State shall
effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag.” In addition,
Article 92(1) clarifies that flag state jurisdiction is exclusive, unless
jurisdiction is provided for elsewhere in the LOSC, or in another
international treaty.

Port State Jurisdiction

A State may exercise jurisdiction over foreign flagged merchant vessels

within its ports and internal waters. Cunard S.S. Co. v. Mellon, 262
U.S. 100, 124 (1923)offsite link; Benz v. Companie Naviera Hidalgo,
S.A. 353 U.S. 138, 142 (1957);offsite link Spector v. Norwegian Cruise
Line Ltd., 545 U.S. 119, 130-31 (2005)offsite link; United States
Department of State, “Immunity of Uruguayan Oil Tanker Presidente
Rivera” (July 13, 1989). This exercise of jurisdiction derives from the
principle of territoriality, which is recognized as customary
international law. See The Schooner Exchange v. McFaddon, 11 U.S. (7
Cranch) 116, 136 (1812)offsite link (“The jurisdiction of a nation within
its own territory is necessarily exclusive and absolute.”). Territoriality
gives a State exclusive authority to regulate persons within its borders.
The exercise of this type of jurisdiction is dependent on the location of
the conduct. So long as the conduct regulated falls within the territory
of the State, it has jurisdiction. Thus a State may apply its laws to
foreign flagged merchant ships while they are within its ports and
internal waters, which are considered part of its territory. Restatement
(Third) of Foreign Relations Law § 512, comment h (1987).

While port state jurisdiction over foreign commercial ships is recognized

as customary international law, port state jurisdiction does not extend
to vessels owned or operated by a foreign state, except when they are
used for commercial purposes. See The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116 (1812)offsite link; the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2)offsite link. Although
foreign government ships operated for non-commercial purposes are
required to comply with a State’s laws while within its ports and
internal waters, they are immune from inspection, arrest, or seizure by
authorities of nations other than the flag state. See The “Ara Libertad”
Case (Argentina v. Ghana), ITLOS, Order of 12 Dec. 2012, Case No.
20offsite link (holding that “in accordance with general international
law, a warship enjoys immunity, including in internal waters” (¶ 95).)
This is reflected in the Law of the Sea Convention (LOSC) Articles 32,
96, and 236 which provide immunity for government ships exclusively
on non-commercial service.

The LOSC recognizes port state jurisdiction in Articles 25, 218, 219,
and 220. Under Article 25(2) of the LOSC, “[i]n the case of ships
proceeding to internal waters or a call at a port facility outside internal
waters, the coastal State also has the right to take the necessary steps
to prevent any breach of the conditions to which admission of those
ships to internal waters or such a call is subject.” LOSC Article 218(1)
also permits a State to investigate and institute proceedings with
respect to pollution from a vessel when it is voluntarily within a port of
the State.

Coastal State Jurisdiction in Zones of Adjacent Sea

A coastal State’s jurisdiction is different in the several zones of adjacent

sea. See Restatement (Third) of Foreign Relations Law §§ 511-15
(1987). These zones may extend up to 200 nautical miles from the
State’s baseline. See Maritime Zones and Boundaries. A State’s
jurisdiction over the activities of vessels in its zones of adjacent sea
diminishes as the distance from shore increases.

Territorial Sea

A State exercises almost complete sovereignty in its territorial sea,

similar to that which it possesses over its land, internal waters, and
ports. See Restatement (Third) of Foreign Relations Law § 512 (1987).
This exercise of jurisdiction, like port state jurisdiction, is derived from
the international law principle of territoriality, which gives a State
exclusive authority to regulate persons within its borders. See The
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136
(1812)offsite link. Thus a State has jurisdiction over all persons and
vessels in its territorial sea, without regard to the person's nationality or
the vessel's flag. Cunard S.S. Co. v. Mellon, 262 U.S. 100, 124
(1923).offsite link While this includes foreign government ships
operated for non-commercial purposes, a failure of compliance by such
vessels is subject only to diplomatic complaint or to coastal State orders
to leave its territorial sea immediately. In addition, under the doctrine of
hot pursuit a coastal State may stop, inspect, and seize a foreign
merchant vessel attempting to leave its territorial sea when it has good
reason to suspect that the vessel has violated its laws. See Gillam v.
United States, 27 F.2d 296, 298 (4th Cir. 1928)offsite link.

The main limitation on a State’s sovereignty in its territorial sea is the

right of innocent passage for foreign vessels. The right of innocent
passage allows a foreign vessel to transit through the territorial sea of a
coastal State unhindered, so long as its passage is not prejudicial to the
“peace, good order, or security of the coastal State.” See Restatement
(Third) of Foreign Relations Law § 513 (1987). The right of innocent
passage has long been recognized as customary international law. See,
e.g., Corfu Channel case (UK/Albania), I.C.J. Reports 1949 p.28offsite
link; U.S. V. Louisiana, 394 U.S. 11, 22 (1969)offsite link. It prevents a
State from hindering the passage of a foreign vessel through its
territorial sea and from adopting measures to the same
effect. See Restatement (Third) of Foreign Relations Law § 513 Comment
b. (1987). Still, a State may adopt some measures to protect against
passage through its territorial sea that is not innocent, including
regulations relating to navigational safety and the prevention of
pollution. See LOSC Article 21; Restatement (Third) of Foreign Relations
Law § 513(2)(b) (1987).

The LOSC recognizes coastal state sovereignty over the territorial sea in
Article 2(1), which states, “The sovereignty of a coastal State extends,
beyond its land territory and internal waters…to an adjacent belt of sea,
described as the territorial sea.” The LOSC also codifies the right of
innocent passage in Article 17, which affirms that “all States, whether
coastal or land-locked, enjoy the right of innocent through the
territorial sea.” LOSC Articles 18-26, 37-44, and 53 provide the
measures that coastal States may adopt to prevent passage that is not
innocent within their territorial sea.

Additionally, Article 27(2) provides that a foreign ship passing through a

coastal State’s territorial sea after leaving its internal waters is not
accorded the right of innocent passage and may be stopped by the
coastal State. A coastal State’s right of hot pursuit of a foreign
merchant vessel leaving its territorial sea is set forth in LOSC Article
111.

Contiguous Zone

A coastal State has limited authority in its contiguous zone. It may only
apply and enforce specific national laws relating to customs, taxes,
immigration, and sanitation within its contiguous
zone. See Restatement (Third) of Foreign Relations Law § 513
comment f. (The U.S. is of the view that such national laws include
environmental laws. See., e.g., Vice-President Al Gore, "Extension of
Federal Enforcement Zone in U.S. Coastal Waters Will Help Prevent
Violations of Environmental, Customs, or Immigration Laws"(Sept. 2,
1999)). This limited jurisdiction is likely derived from the protective
principle, which is recognized under international law. See United
States v. Zehe, 601 F. Supp. 196 (D. Mass. 1985)offsite link (holding
that under international law, a State can punish criminal acts that
threaten national security or directly obstruct governmental functions
even if committed outside its territory by persons who are not its
citizens). The protective principle provides for jurisdiction over certain
conduct outside of a State’s territory that threatens its
security. See Restatement (Third) of Foreign Relations Law § 402(3).

The right of hot pursuit also permits a coastal State to stop a foreign
merchant vessel attempting to leave its contiguous zone when it has
good reason to suspect that the vessel has violated its laws that apply
within that zone. See Restatement (Third) of Foreign Relations Law §
513 comment g. In addition, because the contiguous zone is a part of
the EEZ, a coastal State has the same sovereign rights in its contiguous
zone as in its EEZ, including the authority to regulate economic
activities (see below).

A coastal State’s limited authority within its contiguous zone is reflected

in Article 33 of the LOSC, which states that within its contiguous zone a
“coastal State may exercise the control necessary to…prevent
infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea.” In addition, LOSC
Article 303(2) protects archaeological and historical objects found
within a State’s contiguous zone by establishing the presumption that
their removal without the State’s approval would violate its laws within
its territorial sea.

Exclusive Economic Zone

A coastal State has sovereign rights to the management of natural

resources and other economic activities within its Exclusive Economic
Zone (EEZ). See Restatement (Third) of Foreign Relations Law § 514. It
does not have sovereignty within its EEZ, so foreign vessels possess the
same non-economic rights within a State’s EEZ as on the high seas.
This type of limited jurisdiction is likely derived from the effects
principle, which is a basis for exercising jurisdiction over an activity
outside of the State, but having a substantial effect within its
territory. See Restatement (Third) of Foreign Relations Law § 402(1)(c).
This basis of jurisdiction is recognized under international law. See The
S.S. Lotus Case (France/Turkey), P.C.I.J. Ser. A, No. 10, p. 4
(1927)offsite link (holding that international law permitted a Turkish
court to exercise jurisdiction over the captain of a French ship, which
had collided with and sank a Turkish ship on the high seas); U.S. v.
F/V Taiyo Maru, 395 F. Supp. 413 (D. Maine 1975)offsite link.

The right of hot pursuit permits a coastal State to stop a foreign

merchant vessel attempting to leave its EEZ when it has good reason to
suspect that the vessel has violated its laws that apply within that
zone. See Restatement (Third) of Foreign Relations Law § 513
comment g. The uninterrupted pursuit may continue on the high seas
and within the EEZs of other states, as long as the pursued vessel does
not enter the territorial sea of another coastal State. See Restatement §
513 comment g.

Article 56 of the LOSC recognizes a coastal State’s sovereign rights for

the purpose of exploring, exploiting, conserving, and managing the
natural resources within its EEZ. A coastal State also has sovereign
rights to engage in other activities, such as the production of energy
from the water, currents, and winds. The rights of other states to non-
economic uses of a coastal State’s EEZ are reflected in Article 58. The
LOSC also provides in Article 246 that a coastal state has the authority
to regulate marine scientific research within its EEZ, but that the state
should normally grant consent for research to be carried out by another
state, unless the research has direct significance for the exploration of
economic resources in the zone. And LOSC Article 210(5) specifies that
dumping in the EEZ may not be carried out with the express prior
approval of the coastal State. “Dumping” is defined in LOSC Article 1(5)
to mean the deliberate disposal of wastes or other matter from vessels
as well as the deliberate disposal of the vessel itself. “Dumping” does
not, however, include the disposal of wastes or other matter incidental
to, or derived from the normal operations of vessels.