Indian Maritime Law
Author: Rupa Paul, Amity University, Kolkata.
India has a long history of dealing with the sea and has a distinct tradition of many years of trade and commerce within and beyond its territorial borders. The history of the Indian Ocean dates back to the 3rd millennium BC when many ships sailed from India to and from India. Therefore, although there is no codified law as it exists today, customs and regulations relating to the sea and maritime activities have existed since ancient times. This article analyses Maritime Law in India and the law on ship arrests, including the jurisdiction of ship arrests in India, permissible arguments, and procedural issues. Prior to independence, maritime law in India was governed by the British Government. Coastal Vessels Act, 1838, Inland Steam Vessels Act, 1917, Admiralty Crimes (Colonial) Act, 1849, Indian Registration of Ships Act, 1841, Indian Ports Act, 1908, Shipping Control Act, 1947 with various aspects of the sea in India.
Maritime Law is a set of rules governing maritime and shipping matters. This is also known as Admiralty Law. Many legal lights provided their definition of the term ‘law of the sea’. Some of them are as follows:
Professor Grant Gilmore and Charles L. Black, in their ‘Law of Admiralty’, defines sea or admiralty law as follows:
” Corpus of rules, concepts and legal practices governing some of the central important concerns of the business of transporting goods and passengers by water. ”
Black’s law dictionary defines maritime law as “the law governing maritime trade and navigation, transportation of persons and property and generally maritime affairs; contract, tart and labour compensation claims or on commercial or water.”
In short, Maritime Law is comprehensive and it is the branch of jurisprudence that deals with all matters relating to the sea and ships.
INDIAN COURTS JURISDICTION
Prior to India’s independence, under the Colonial Court of Admiralty Act, 1890, the Bombay, Madras and Calcutta High Courts were the only judicial bodies to settle matters relating to the Admiralty and other courts were dealing with limited issues related to admiralty. Under the Admiralty Courts Act, 1861, the three Presidency Courts have the same powers as the High Court of England.
Section 35 of the Admiralty Courts Act, 1861 relates to the jurisdiction of the Admiralty Court, and reads as follows:
“35. The jurisdiction conferred by this Act on the Admiralty High Court may be exercised by trial in Rem or by trial in person.”
The law relating to the jurisdiction of the Admiralty under Article 372 of the Constitution of India is still applicable today.
Therefore, M.V. Elisabeth v. Harwan Investment and Trading, 1993 AIR SC 1014, the question is whether a court without admiralty jurisdiction can entertain a case involving admiralty. The Supreme Court, in this case, extended the jurisdiction of the Admiralty in India.
OBSERVATIONS BY SUPREME COURT
“The High Courts of India are the highest. They have original and appellate jurisdiction. They have inherent and plenary jurisdictions.
Further, in this case, the International Convention for the Unification of Certain Rules Relating to the 1952 Arrest of Sea-Going Ships (The Arrest Convention) was also applied to India, although it was not ratified.
Similarly, in the case of M.V.C. Success, the Supreme Court held that the principles set forth in the 1999 Geneva Arrest Convention could be applied in India on matters relating to admiralty.
In India, the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act was enacted on August 9, 2017, to consolidate the laws relating to Admiralty. This law was enacted, repealing all the old rules relating to admiralty.
Under Section 3 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, jurisdiction over admiralty matters is vested in the relevant High Courts, and the courts are required to exercise their jurisdiction in the territorial waters.
In addition to the Presidential Courts, the following courts (coastal areas) have jurisdiction to deal with Admiralty matters:
- Gujarat High Court
- Andhra Pradesh High Court
- Orissa High Court
- Kerala High Court
SECTION 4 OF THE ACT
The High Court exercise jurisdiction to hear and decide any question arising out of anything, against any vessel, arising out of any
- A dispute over ownership or ownership of a vessel or any stake therein
- Dispute between ship’s co-owners, ship’s employment or earnings
- A charge of the same nature on a mortgage or ship;
- Damage or damage caused by the operation of a ship
- Life-threatening or personal injury on land or water that is directly related to the operation of a ship
- Damage or damage to any goods
- Agreement on the transportation of goods or passengers on a charter party or other vessel
- Salvage services, if applicable, are special compensation for salvage services relating to a vessel, thereby endangering the damage to its cargo environment.
- The employer has an obligation to pay an individual as an employee, regardless of the provisions of Sections 150 and 151 of the Merchant Shipping Act, 1958 (44 of 1958), whether enforced by the employment contract or by the operation of law (including the operation of the law of any country). Manning and crew related to the ship shall have any claim arising out of the contract.
- Distributed on behalf of the vessel or particular average or normal mean
- Dispute arising from a contract for the sale of a ship
- Shipping insurance premium (including mutual insurance calls), payable on or on behalf of ship owners or charters death
- The commission, brokerage or agency fees payable in respect of the ship or on behalf of the shipowner or Demi charter
- Damage or threat posed by the ship to the environment, coastline or related interests; Measures are taken to prevent, mitigate or eliminate such damage; Compensation for such loss; The costs of reasonable measures for environmental rehabilitation that have been undertaken or are to be undertaken; Loss or damage caused by third parties in connection with such loss; Or loss, costs or damage of a nature similar to those identified in this provision
- The costs or costs of raising, removing, restoring, destroying or destroying a sunken, wrecked, isolated or abandoned vessel, or anything on such vessel, and the costs or costs associated with maintaining an abandoned vessel and its crew; And
- Maritime lien.
THE LEGISLATION IN MARITIME LAW IN INDIA
Before examining the theme of maritime laws in India, it is very pertinent to trace its beginnings in English rules and regulations over the jurisdiction of the Admiralty and to regulate the use of English courts beyond foreign ships. Current maritime laws in India date back to colonial times, for example, the Territorial Waters Jurisdiction Act, 1878, the Admiralty Offenses (Colonial) Act, 1849, and the Coasting Vessels Act, 1838; Inland Steam Vessels Act, 1917; Indian Registration of Ships Act (1841) Amendment Act, 1850; Indian Registration of Ships Act, 1841; Indian Ports Act, 1908; Indian Merchant Shipping Act, 1923; Shipping Control Act, 1947; Merchant Seamen (Litigation) Act, 1946; Merchant Shipping Laws (Extension to the Ascending States and Amendment) Act, 1949, etc.
India has a vast history of dealing with maritime trade and various commercial and non-commercial practices by sea within and beyond the borders of the country. In ancient times, it is mentioned that many traders and merchants were coming to India and vice versa. After independence, the government took the matter seriously and enacted various laws and legislation to maintain healthy, efficient, and continuously evolving trade practices across the sea. There are certain areas where the government and its officials can look into matters relating to the transportation of goods by sea, maritime insurance, ownership and ship registration, ship sales and building contracts, ship financing and offshore trade and shipping. Mortgage, ship demolition, etc. The government should also look at some environmental issues that could increase the rate of pollution caused by marine trade as well as the organisms in it.
The Coasting Vessels Act, 1838 – This Act provides for the registration of fishing vessels and harbour crafts employed on the coasts of Bombay, Saurashtra, and Kutch. Every such vessel employed as aforesaid, fishing-vessel and harbour-craft shall be marked or branded with the name of the place to which she belongs, and also with a number assigned for the same by the officer authorised to make registry as mentioned; Owner to paint name and number–and the owner or owners of such vessel employed as aforesaid, fishing-vessel and harbour-craft shall cause such name and number to be painted in black paint upon a white ground on each quarter of such vessel employed as aforesaid, fishing- vessel and harbour-craft, in English figures and letters, each figure and letter being six inches in length.
Inland Steam Vessels Act, 1917 – Over time, the operation of electric vessels in the inland waters of the country has undergone significant changes, resulting in provisions in the Indian Steam-Vessels Act. 1917, not found adequate to control inland vascular operation. The Government of India has set up a committee under the chairmanship of Shri B. Bhagwati, Member of Parliament, to consider the issues related to the development of inland water transport and to suggest a phased program for the development of this transport system. The Committee made recommendations for the amendment of this Act. Some other legislative changes are also considered necessary in light of practical experience. Accordingly, it is proposed to amend the short title of this Act to the “Inland Vessel Act” and to substitute the expression “steam-character” by the expression “mechanically propelled vessel”. There is now no provision for mortgaging mortgages by owners to obtain financial assistance for the construction or repair of ships.
Admiralty Offences (Colonial) Act, 1849 – Any person in any colony who commits treason, piracy, crime, robbery, murder, conspiracy, or any crime of any kind in nature, on the sea or on any paradise, river, creek, or place where the Admiral or Admirals have authority or jurisdiction, or at sea or a person who has committed any crime in such a paradise, river, creek or place should be brought to any colony for trial, in such a case all the judges, justices of the peace, public prosecutors, jurors, courts, government officials and other persons in such colony and exercise the same jurisdiction. Besides, the authorities have to establish and continue to investigate, attempt, hear, determine and convict such offenses, and, thus, bring the accused person to power, authority, and prosecution, respectively, as above, and you and auxiliary and consequently upon, for such an offense Trial of such person; According to the law of such a colony he may be charged and if such an offense is committed and such a person is charged with committing the same act, they must be held in a row and exercised or established and maintained. Any waters are within the boundaries of such a colony and within the local jurisdiction of the criminal justice courts of such a colony.
Indian Registration of Ships Act, 1841 – (A) The vessel is registered under the British Registered Ship or Indian Registration of Ships Act, 1841, (10 of 1841) or the Indian Registration of Ships Act (1841) Amendment Act, 1850, (1150 of 1850) or 1 [in India] According to any other law in force for, the Conservator is required to prepare a register for inspection by the owner or owner of the ship or anyone who owns her register. The fine may be up to one hundred rupees, and the Conservator may cause the vessel to measure and confirm its tonnage, vessels under the measurement procedure currently prescribed by the regulations to control British measurement, and in such a case the owner or owner of the vessel shall also be liable to pay the costs of the measurement.
Indian Ports Act, 1908 –It should be expanded, saving as it appears from its subject or context – (a) leading to such ports, respectively, to the ports specified in the first schedule, and to parts of the navigable rivers and channels. Act XXII of 1855 (for the control of ports and port-arrears) or the Indian Ports Act, 1875, (12 of 1875) or the Indian Ports Act, 1889; (10 in 1889).
Control of Shipping Act, 1947 – The Ministry of Shipping has proposed to amend the Indian Ports Act, 1908 for which a draft has been prepared. This action is being taken in view of the need to cancel and propose a new rule called Beneficial for obsolete rule and maritime bringing professional approach in the sector and its governments. The detailed draft bill has been uploaded on the Ministry’s website Shipping (www.shipmin.gov.in) for review and comments from various shareholders.
- The international character of maritime law, although heavily indebted to general principles of international law is subject to local laws in India.
- The Indian Ports Act, 1908 deals with the administration of the ports and the jurisdiction over ships in ports.
- Clause 32, ibid, explicitly declared the High Courts of Judicature at Madras, Bombay and Fort William in Bengal as Courts of Admiralty or of Vice Admiralty.
- By S.22 of the Supreme Court of Judicature (Consolidation) Act, 1925, the questions or claims in relation to which the High Courts had admiralty jurisdiction, were listed out, and those were the claims for which a claimant could approach the Admiralty Courts in India for reliefs.
- M. V. Elisabeth v. Harwan Investment and Trading Pvt Ltd., AIR 1993 SC 1014: (1993) Supp. 2 SCC 433. See also, Kamlakar v. The Scindia Steam Navigation Co. Ltd., LX II (B.L.R.) 995 to 1017; Rungta Sons Ltd. v. Owners and Master of Edison, 66 (C.W.N.) 1083; National Co. Ltd. v. M. S. Asia Mariner, 72 G.W.N. 635.