This post is written by Pragya Yadav, a third-year law student at IIMT, IP University, Delhi.
WHAT IS MARITIME LAW?
Maritime Law is the body of law which deals with matters relating to shipping and other nautical matter which includes offences which are committed on open waters. Maritime Law is also known as Admiralty Law.
Most of the developed Nations follow their own separate rules of Maritime Law and also have an independent jurisdiction from other national laws. The United Nations [UN] has issued various conventions which are enforced by the navies and coastal guards. Maritime law deals with the insurance claims on ships; civil disputes between shipowners, seamen and passengers and; matters relating to piracy as well.
Maritime also governs over matters relating to registration, license, and inspection procedures for ships, insurance, shipping contracts and the carriage of goods and passengers.
HISTORY OF MARITIME LAW IN INDIA
India has a rich history of trading as well as non-trading practices on the sea within the country boundaries as well as beyond it. So, there have been a variety of rules and regulations relating to the sea over a period of time. Before Independence, the government has enacted several statutes and laws to maintain efficient trading practices on the sea. For instance, the Merchant Shipping Act, 1958 which was enacted for the development of sea trading practices. Apart from this act, there were several other laws which were put forward by the British Government such as Coasting Vessels Act, 1838; Inland Steam Vessels Act, 1917 and many more. However, as these laws were not in accordance with the existing arrangement of Coastal Trade, the government enacted fresh rules and regulations for the improvement of the coastal trade practices.
India has evolved a great deal from the colonial times in the field of Maritime Law. The laws which have been enacted since then include the Territorial Waters Jurisdiction Act, 1878, the Admiralty Offences (Colonial) Act, 1849, the Coasting Vessels Act, 1838; the Inland Steam vessels Act, 1917; the Indian Registration of Ships Act (1841) Amendment Act, 1850; the Indian Registration of Ships Act, 1841; the Indian Ports Act, 1908; the Indian Merchant Shipping Act, 1923; the Control of Shipping Act, 1947; the Merchant Seamen (Litigation) Act, 1946; the Merchant Shipping Laws (Extension to the Acceding States and Amendment) Act, 1949 etc.
The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017
The Admiralty Act, 2017 has replaced several archaic laws enacted by the British Government relating to the Admiralty Jurisdiction of the Indian High Courts.
The Admiralty Act is applicable to all boats and ships (except for the inland vessels and vessels which are under construction) in the India Territorial waters. It also applies to the vessels that have sunken and stranded.
- JURISDICTION OF INDIAN COURTS
Under the archaic laws of The Colonial Court Admiralty Act, 1890, only the High Courts of Bombay, Madras and Calcutta were given the authority to deal with the matter relating to Admiralty issues.
However, the Supreme Court in the case of M.V Elisabeth v. Harwan Investment and Trading widened the scope of Admiralty jurisdiction in India. The Court held “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 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 other are, apart from Statutes, 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 court further observed “the High Courts 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.”
The Admiralty (jurisdiction and settlement of maritime claims) Act, 2017 was enacted on 9th August 2017, which repealed all the outdated laws relating to the Admiralty Law, which extended the Jurisdiction to decide over matters relating to Admiralty Law to Gujarat, Andhra Pradesh, Orissa and Kerala High Courts.
- SHIP ARRESTS
Ship Arrest is a process by which a ship is prohibited from trading until the issues relating to the said ship are decided. It is an exclusive jurisdiction which is given to an Admiralty Court to prohibit a ship from moving in order to secure the maritime claim.
Before the enactment of the Admiralty Act, 2017, the maritime claims were provided under Article 1 of the Arrest Convention, 1952 and Article 1 of the Geneva Arrest Convention, 1999. Now, the provision relating to Maritime claims is provided under Section 4 of the Admiralty Act, 2017.
According to Section 4 of the Admiralty Act “the High Court may exercise jurisdiction to hear and determine any question on a maritime claim, against any vessel, arising out of any
- Dispute regarding the possession or ownership of a vessel or the ownership of any share therein;
- Dispute between the co-owners of a vessel as to the employment or earning of the vessel;
- Mortgage or a charge of the same nature on a vessel;
- Loss or damage caused by the operation of a vessel;
- Loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of a vessel;
- Loss or damage to or in connection with any goods;
- Agreement relating to the carriage of good or passengers on board a vessel, whether contained in a charter party or otherwise;
- salvage services, including, if applicable, special compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment;
- goods, materials, perishable or non-perishable provisions, bunker fuel, equipment (including containers), supplied or services rendered to the vessel for its operation, management, preservation or maintenance including any fee payable or leviable;
- construction, reconstruction, repair, converting or equipping of the vessel;
- dues in connection with any port, harbour, canal, dock or light tolls, other tolls, waterway or any charges of similar kind chargeable under any law for the time being in force;
- claim by a master or member of the crew of a vessel or their heirs and dependents for wages or any sum due out of wages or adjudged to be due which may be recoverable as wages or cost of repatriation or social insurance contribution payable on their behalf or any amount an employer is under an obligation to pay to a person as an employee;
- disbursements incurred on behalf of the vessel or its owners;
- particular average or general average;
- dispute arising out of a contract for the sale of the vessel;
- insurance premium (including mutual insurance calls) in respect of the vessel, payable by or on behalf of the vessel owners or demise charterers;
- commission, brokerage or agency fees payable in respect of the vessel by or on behalf of the vessel owner or demise charterer;
- damage or threat of damage caused by the vessel to the environment, coastline or related interests; measures taken to prevent, minimise, or remove such damage; compensation for such damage; costs of reasonable measures;
- Loss incurred or likely to be incurred by third parties in connection with such damage; or any other damage, costs, or loss of a similar nature to those identified in this clause;
- costs or expenses relating to raising, removal, recovery, destruction or the rendering harmless of a vessel which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such vessel, and costs or expenses relating to the preservation of an abandoned vessel and maintenance of its crew;
- maritime lien.
Once an arrest warrant is issued, the owner of the ship or the vessel has to appear before the court and either settle the claim or challenge the arrest. In the case of default on the behalf of the owner, the court may order the ship or the vessel to be sold and the proceeds of the sale will be used to settle the claim.
- Julia Kagan, Maritime Law, Investopedia, https://www.investopedia.com/terms/m/maritime-law.asp
- An outlook of the Maritime laws in India, Law Times Journal, http://lawtimesjournal.in/an-outlook-of-the-maritime-laws-in-india/
- Ship Arrests Under India Shipping Law, https://www.stalawfirm.com/en/blogs/view/ship-arrests-and-indian-maritime-law.html?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration