LOCAL LAWS VS. INTERNATIONAL MARITIME LAWS
Author: Rama Gandhi, NMIMS School Of Law
ABSTRACT:
This article discusses the relationship between International maritime law and local maritime law from legislative and judicial perspectives. It explains the relationship through India’s implementation of international maritime conventions. The article concludes that the relationship has a well-developed pattern based on legislative structures and judicial processes. With strong historical roots and traditions, the relationship is motivated by international comity and has firm grounding in international and domestic public policy in support of international uniformity to facilitate international commerce.
Local maritime law has a unique heritage underscored by commercial necessity.[1] The consequence is a relationship between international law and domestic law in a maritime setting that appears to be less problematic than the relationship between international law and other areas of domestic law. 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.
It is a distinct body of law that governs maritime questions and offenses. It is a body of both domestic laws governing maritime activities, and private international law governing the relationships between private entities that operate vessels on the oceans. Maritime law governs private maritime questions, disputes, or offenses and other nautical matters.In most developed countries, the maritime law follows a separate code and is an independent jurisdiction from national laws.The IMO ensures that existing international maritime conventions are kept up to date and develops new agreements when the need arises.[2]
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.[3] Maritime law governs many of the insurance claims relating to ships and cargo; civil matters between shipowners, seamen, and passengers; and piracy.
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 man-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.Before Independence, the Law relating to maritime laws in India were governed under the British government.[4] 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.
The High Courts of Judicature at Madras, Bombay and Fort William in Bengal, were declared as Courts of Admiralty or of Vice Admiralty, and vested with jurisdiction for trial and adjudication of maritime questions arising in India, which was confirmed by the Colonial Courts of Admiralty (India) Act, 1891.The Supreme Court of India is the highest Court in India and its decisions are binding upon all courts and tribunals in India.Accordingly, in view of there being no Indian Statute governing the Courts’ jurisdiction in regard to maritime claims, the Supreme Court made the principles of International Conventions on Maritime laws, applicable in India as part of India’s common law.Apart from these legislations, there are judgements of various courts in India, which has laid down general principles of maritime law as is recognized and practiced in India.[5]
Maritime laws are mostly international, and the jurisdiction can be somewhat murky at times. Whether you are the victim of a crime or suffer an injury at sea, you may wonder who is responsible and how maritime laws are enforced.However, in the field of maritime law, India is yet to secure a position ofsuperiority in the international arena.As a port state India is obviously interested in asserting its port state jurisdictionunder international law and effectuating it through port state control of visitingships. India is also a flag state and a major trading nation. Therefore, commercialmaritime interests of India are equally important, and in this regard the role ofprivate maritime law is self-evident.
Prior to the mid-1970s, most international conventions concerning maritime trade and commerce originated in a private organization of maritime lawyers known as the Comité Maritime International (International Maritime Committee or CMI). Founded in 1897, the CMI was responsible for the drafting of numerous international conventions including the Hague Rules (International Convention on Bills of Lading), the Vis by Amendments(amending the Hague Rules), the Salvage Convention and many others. While the CMI continues to function in an advisory capacity, many of its functions have been taken over by the International Maritime Organization, which was established by the United Nations in 1958 but did not become truly effective until about 1974.Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not,and wherever the residence or domicile or their owners may be.[6] A vessel is usually arrested by the court to retain jurisdiction. State-owned vessels are usually immune from arrest.
Reference
[1]THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW, Vol. 1 1-2 (1994).
[2]https://www.investopedia.com/terms/m/maritime-law.asp
[3]https://www.un.org/en/sections/issues-depth/oceans-and-law-sea/
[4] Ministry of Law and Justice, The Bar Council of India Rules, Part – IV, available at http://lawmin.nic.in/la/subord/bcipart4.htm
[5]https://www.britannica.com/topic/maritime-law
[6]http://www.pfri.uniri.hr/bopri/documents/02_MaritimeLaw.pdf
La Senatus Scriptors 