INDIAN MARITIME LAW vis-à-vis INTERNATIONAL MARITIME LAWS- AN OUTLINE

INDIAN MARITIME LAW vis-à-vis INTERNATIONAL MARITIME LAWS- AN OUTLINE

Author: Vallabhi Rastogi, Content Writer, UFLS.

Introduction

India is a country that is surrounded by water on three sides. Being rich in diversity and raw materials, many foreigners like Mohammad Ghori, Mahmud of Ghazni, the Arabs invaded and looted India. All these invasions were possible through the sea and water routes since air transport was not in the picture then. Even the Portuguese landed in India through the sea route in 1498 AD. The maritime laws of India regulate these sea routes that fall within the territorial waters of India. The Admiralty law is a means to resolve disputes related to the sea, the ships/vessels, the trade carried through it, etc., that found its minute traces under several different legislations. The shipping laws in India trace their origin back to the times when India was under the British reign. Many laws were implemented by the British to regulate the shipping industry of India and most importantly prevent other nations from making India their colony.

Shipping norms and usages existed even before the British Dominion; however, since they were not codified, those regulations held no merit and proved to be ineffective and futile. Presently, the foremost legislation that regulates the shipping laws in India along with other supplementary provisions is the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. Not only this, but India is also a party to several international maritime laws and conventions that have helped a great deal in maintaining the international order with regards to the territorial water boundaries.

Genesis and Evolution

While being under the British dominion, India was subject to numerous maritime laws that administered matters related to the sea. Therefore, the basis of the maritime laws in India is found in the British legal system; however, these laws underwent several amendments and modifications over the years. The British introduced the Coasting Vessels Act, 1838, Admiralty Courts Act, 1840 and the Indian Registration of Ships Act (1841) Amendment Act, 1850, in quick succession. Simultaneously, the British implemented the Admiralty Courts Act, 1861, Letters Patent Act, 1865, Territorial Waters Jurisdiction Act, 1878, Colonial Courts of Admiralty Act, 1890, Indian Ports Act, 1908, Inland Steam Vessels Act, 1917, Indian Merchant Shipping Act, 1923, Merchant Seamen (Litigation) Act, 1946, Control of Shipping Act, 1947 and the Merchant Shipping Laws (Extension to the Acceding States and Amendment) Act, 1949. Some of these legislations were different with regards to their provisions, interpretation, subject matter, and spirit, while some were a better and enhanced version of their previous counterpart.

These legislations were brought into effect by the British to ensure that the legal framework with regards to marine affairs was comprehensive and all-inclusive in India, leaving no gaps for any anomalies and incongruities. Even after independence, most of these acts continued to exist and regulate shipping affairs. The Admiralty Courts Act, 1861 was prevalent for a long-time, post-independence, until the Government of India brought new legislation altogether into effect known as the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. This act, which came into force in April 2018, is a consolidation of the provisions relating to maritime insurance claims, arrest, contract of sale, pilotage, proceedings, and most significantly admiralty jurisdiction. This act has replaced many of the outdated shipping laws that created chaos and complexity in this contemporary world.

This domestic admiralty law has been enforced to prevent and conflicts over the sea given the competitive and advanced world and the recent influx of multinational entities into a profit-maximizing economy like India.

Jurisdiction

The Royal Charter had vested the admiralty jurisdiction in the three Presidency Courts of British dominated India. The Presidency Towns of Madras, Calcutta, and Bombay was conferred with the power of dealing with admiralty issues, having both appellate and original jurisdiction. These presidency courts in India were declared as the Colonial Courts of Admiralty giving them equal jurisdiction in extent and quality as that of the High Court of England. In other words, these Colonial Courts of Admiralty were equated and conferred with the same authority as that of the English High Court with regards to the maritime laws. The powers of jurisdiction vested with these Admiralty Courts continued to exist even post-independence u/a 372[1] of the newly promulgated Constitution of India. “These Admiralty Courts assumed jurisdiction under the presence of the impugned 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. A vessel is usually arrested by the court to retain jurisdiction. State-owned ships were immune from arrest under the Act of 1861.” [2]

In the most significant judgment of M. V. Elisabeth and Anr. v. Harwan Investment & Trading Co. and Anr.[3], dealing with admiralty matters, the Hon’ble Supreme Court ruled that the jurisdiction of the High Courts in India is ‘unlimited’ and that they have ‘inherent and plenary powers to decide on admiralty issues to provide the remedy to the grievances and admiralty claims based on equity, justice and good conscience in ambiguous situations – unless expressly or impliedly barred. High Courts being the superior courts of record will have the power to determine even on their jurisdiction with regards to affairs relating to admiralty.’ This ruling indicated that the High Court held a much higher and absolute position than any other court or tribunal except the Supreme Court.

Other significant judgments that have simplified and clarified the complexities in the domestic maritime law are the Kamlakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd.[4], Mrs Sahida Ismail v. Petko R. Salvejkov & Orrs.[5], Rungta Sons Pvt. Ltd. 7 Anr. v. S. S. Edison Mariner & Anr.[6] And Bai Kashibai & Ors. v. Scindia Steam Navigation Co. Ltd.[7] Most of these rulings have highlighted that suit for damages by the shipowner against any vessel for collision or concerning the loss of life due to collision would be the exclusive admiralty jurisdiction of the respective High Courts irrespective of whether the vessel was registered in foreign or in India. The jurisdiction of the admiralty dispute for a particular High Court was decided based on the state within whose territorial waters the impugned ship was arrested. For instance, if the ship was arrested within the territorial waters of Kerala then, Kerala High Court will have the admiralty jurisdiction.

The High Courts exercising admiralty jurisdiction[8] are presently being regulated by the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, thereby replacing the old Admiralty Courts Acts passed over a series of years. However, after the enforcement of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, an Indian vessel/ship can also now be arrested for enforcement or recovery of a maritime claim.[9]

Basic Procedure under Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017

As per Section 3 of the act above and the ruling of M. V. Elisabeth and Anr, V. Harwan Investment & Trading Co. and Anr., the admiralty jurisdiction are entrusted with the High Court in India. The High Court while exercising admiralty jurisdiction has the power to determine cases dealing with ownership/co-ownership and possession, loss of life or property, carriage of goods, outstanding dues, mortgage, lien, charges, contract of sale, pilotage, salvage services, insurance claims, brokerage, damage, etc.[10]

To file a suit before the Admiralty Court for ship arrest to recover a claim which is a right in rem, the claimant has to ensure that the impugned ship is within the territorial waters of India including the 12 nautical miles from the shore. The High Court of a particular state will only have admiralty jurisdiction by the existence of the impugned ship in its territorial waters. The High Court can issue an order/warrant for an arrest to ‘provide security against a maritime claim’[11] which is served to the defendant by the Marshall either going onboard the ship or pasting it on the ship’s mast. Until the matter in question is settled or security is paid against the claim, the High Court can issue an order to prevent and refrain the ship to sail and exit into the international waters. This process which is known as ship arrest can be ordered when there is an infringement of regulations or norms, dispute due to collision, salvage, loss of life or property, or for the execution of a decree.[12]

The substantive suit cannot be filed before the High Court having admiralty jurisdiction if the ship is not within the territorial waters of India or has sailed beyond it. Moreover, if the High Court releases an order after the impugned ship has sailed into the international waters, the arrest cannot be made until the impugned ship returns to the Indian territorial waters. The ship in question can be either of India or foreign, either registered or not, and can belong to any person notwithstanding his place of residence or domicile. However, this shall not apply to any ship that is in the process of construction and hasn’t been set to sail or a vessel for a non-commercial purpose or a warship/naval ship owned or operated by the Government.

Once the warrant is issued, the defendant can either settle the claim or challenge it. However, the High Court can order for the sale of the arrested ship if the defendant defaults in settling the claim or has abandoned it within 45 days which may be extended to a further 30 days with proper justifications before the court.  However, during this entire process of settling the claim, the defendant can release the arrested/detained ship from the Marshall by paying him security.

International Laws

The international waters have been subject to the ‘freedom-of-the-seas’ doctrine that was instituted in the 17th century to ‘restrict a nation’s right and jurisdiction over the oceans and seas and leave the rest of the water bodies free without any ownership of any nations.’[13] The International maritime law is based on balancing the Law of Freedom of the High Seas and Law of Sovereignty of Nations. ‘The United Nations has created an International Maritime Organization that has prepared many international conventions governing international maritime safety and environmental issues.’[14]

The United Nations Law Of The Sea Convention (UNCLOS) has been a phenomenal step in putting forward the statement above. It had put forth some essential regulations like setting the territorial sea boundaries at 12 miles offshore, creating conflict resolving mechanisms, and establishing the freedom-of-navigation rights that have contributed to a great extent in maintaining international order. Therefore, UNCLOS has stated that any sea areas beyond the 12 nautical miles from the shore of the nations would be considered as international waters.[15]

Several other conventions have also been responsible for the regulations and guidelines over the sea. These include the International Convention for the Safety of Life at Sea, 1974, International Convention for the Prevention of Pollution from Ships, 1973, International Regulations for Preventing Collisions at Sea, 1972, Convention on Limitation Liability for Maritime Claims, 1976, etc. Not all nations are parties to all the maritime conventions, but the United States of America and the European Union are signatories to most of them.

  • AUSTRALIA

The maritime law in Australia forms a stringent and rigorous regulatory framework that is well suited according to its geographical location. Being surrounded by water on all its sides, the shipping laws constitute a significant part of the Australian Legal System. The principal legislation that dominates the shipping affairs in the Australian Commonwealth is the Admiralty Act, 1988, the Navigation Act, 2012, and the Marine Safety (Domestic Commercial Vessel) National Law Act, 2012.

Being divided into six states and two territories, the Admiralty Act, 1988 (Cth) confers the admiralty jurisdiction with the Supreme Courts in the case of the states and to the Federal Courts in case of territories. Appeals are taken to the Court of Appeal or the Full bench of the Federal Court. High Courts are the senior appellate courts. “They decide cases relating to proprietary and general maritime claims along with any damage caused to a ship.”[16] It authorizes both action in rem (against a ship/vessel) and action in personam (against a person). Even the Australian Courts can issue orders only for those ships that are within the Australian territorial water boundary and have not entered into the international waters. Once the ship is arrested, it can be released by providing security. All ships notwithstanding the place of residence or domicile of their owners can be arrested. With refined and all-inclusive laws, Australia has been quite successful in dealing with maritime affairs.

  • CHINA

‘China plays an increasingly pivotal role in the global shipping industry. It is home to seven of the world’s ten busiest ports by cargo tonnage, with Shanghai consistently topping the list.’[17]

The maritime jurisdiction vests with the maritime courts established explicitly for determining matters related to the Chinese territorial waters. The disputes are decided by the maritime courts in China that are majorly regulated by the Maritime Special Procedure Code, 1993 and the Supreme Court’s Provisions on Issues concerning Ship Arrest and Auction. China has recently been wanting to increase its area of influence over the sea to initiate new projects and especially considering the disputes related to the South China Sea. For this purpose, China introduced the One Belt, One Road (OBOR) under which included 21st Century Maritime Silk Road that increases its connectivity. OBOR is meant to increase the role of the Chinese Maritime Courts in the international maritime dispute resolution. Other than this, the ‘Supreme People’s Court of China has extended its maritime jurisdiction to cover all seas under the country’s sovereign control to bolster its control over the disputed South China Sea.’ [18] This has given the Supreme Court of China, which is its highest judicial body, the control over admiralty affairs. This initiative has been done to make China one of the immense maritime powers.

China had also defied and rejected an order of the international tribunal. These claims by China are evidently beyond the UNCLOS regulations. China has also allowed its judicial bodies to intervene in the rights guaranteed to foreign nationals under international law. With regards to this, many nations had criticized China for violating international maritime regulation and infringing the Land of the Sea. However, China substantiated itself by contending that the concept was not intended to repealing it but merely a measure to promote trade and development projects.

  • UNITED STATES OF AMERICA (U.S.)

The Admiralty law in the U.S. also traces its origin from the British legal system since America was also a colony of the British during the latter’s expansion policy. The laws, judicial proceedings, and most of the legal system related to shipping was similar to that of India. Initially, America had separate admiralty courts that were independent of the courts of law and equity.[19] The admiralty courts had legal proceedings without the presence of the jury. However, eventually, Federal District Courts were given the admiralty jurisdiction. These courts determined as to what all could be included in the admiralty matters. Their jurisdiction is limited only to admiralty affairs and does not extend to non-marine matters.[20]

Presently, the exclusive Admiralty jurisdiction in the U.S. is conferred to the Federal Courts by the Judiciary Act, 1789 and under Article III, § 2[21]. ‘The U.S. Federal Courts and State Courts exercise concurrent jurisdiction over most maritime and admiralty claims. This was included in the savings to suitors clause.’[22] However, an interesting fact about the U.S. Admiralty is that the ‘flag attached to the ship determines the source of the law.’[23] The flag and the ship must have a rational and legitimate nexus between them. The admiralty jurisdiction has expanded from just American tidal waters to any waters navigable within the United States for interstate or foreign commerce.[24] In 1966, Federal Rules of Civil Procedure engulfed in it the independent admiralty rules but the Supplemental Admiral Rules would override in case of any inconsistency.

Both being originated from the English marine law, the U.S. and the Indian admiralty law have many similarities. However, the U.S. being a developed country, is at a much different pace when dealing and coping with admiralty issues.

Conclusion

Being surrounded by water on its three sides, a developing country like India must have a robust domestic maritime law. With the continuous inflow of transnational companies in India and increasing trade and commerce activities, the admiralty law needs to be bolstered and brought to such a level that leaves no gaps and loopholes for misuse or violation. A robust maritime legal framework will also help in maintaining international order and peaceful, friendly relations with other nations across the globe.

The shipping laws have been evolving with time. The recently introduced Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 has served a vital role in repealing the age-old British laws that were not only insufficient but also redundant. The perplexities and absurdities existing in those archaic colonial laws have been tried to be replaced with this new legislation. With this novel act, the Government of India has ironed out many of the existing wrinkles concerning international maritime law. India, being a party to many international maritime legislation and conventions, has been equated and brought at par with many economies across the world.

However, given the short duration in which it has existed, it has not been tested to its full potential. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 has been significant progress in strengthening the admiralty law that forms a significant part of the Indian legal system. Any major uncertainties and anomalies have not come much to light.

The coming years would be essential to assess and evaluate the progress of this domestic maritime law in comparison with the international ones. The main objective of this act would be to refine the admiralty provisions further to mitigate the irregularities and alleviate the loopholes, thereby boosting the Indian legal system. It would be interesting to know how the proposed, as well as existing reforms, play out in the forthcoming years.


· Third Year B.A.LL.B student at Symbiosis Law School, Noida (SIU)

[1] Constitution of India (1949) art. 372- Continuance in force of existing laws and their adaptation.

[2] Dr. Shrikant P. Hathi & Binita Hathi, Ship Arrest in India and Admiralty Laws of India (13th ed. 2020).

[3] 1992 SCR (1) 1003.

[4] AIR 1961 Bombay 186.

[5] AIR 1973 Bombay 18.

[6] 1961-62 (66) Calcutta Weekly Notes 1983.

[7] AIR 1961 Bombay 200.

[8] Section 3 of Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 – Subject to the provisions of section 4 and section 5, the jurisdiction in respect of all maritime claims under this Act shall vest in the respective High Courts and be exercisable over the waters up to and including the territorial waters of their respective jurisdictions in accordance with the provisions contained in this Act:

Provided that the Central Government may, by notification, extend the jurisdiction of the High Court up to the limit as defined in section 2 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.

[9] India- Admiralty (Jurisdiction & Settlement of Maritime Claims) Act, 2017. https://www.ukpandi.com/news-and-resources/articles/2018/legal-article-india–admiralty-jurisdiction–settlement-of-maritime-claims-act-2017/

[10] Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. No. 22, Acts of Parliament, 2017. Sec 4.

[11] Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. No. 22, Acts of Parliament, 2017. Sec 5.

[12] Ship Arrests And Indian Maritime Law, MONDAQ Ltd. (2019). https://www.mondaq.com/india/marine-shipping/817974/ship-arrests-and-indian-maritime-law

[13] https://www.un.org/en/sections/issues-depth/oceans-and-law-sea/

[14] https://www.justia.com/admiralty/

[15] United Nations Law Of The Sea Convention. Art.2 & Art. 3.

[16] https://www.fedcourt.gov.au/law-and-practice/national-practice-areas/admiralty/jurisdiction.

[17] Commercial Overview of the Shipping Industry- China, Shipping Law Review (7th ed. 2020)

[18] Supreme Court Jurisdiction to Cover All Seas Under its Control: China, THE TRIBUNE. (2020).

[19]Admiralty: An Overview, Corn. LII.  https://www.law.cornell.edu/wex/admiralty

[20] 28 USC § 1333 (1).

[21] U.S. CONST. art. III, § 2.

[22] Supra note 14.

[23] Supra note 16.

[24] Supra note 14.

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