A PRIMER ON MARITIME LAWS IN INDIA

INTRODUCTION

Maritime laws are also known as Admiralty Laws. They comprise of rules and regulations governing matters in relation to marine commerce, navigation, marine affairs, carriage of people, property and certain directives governing contracts, torts and compensation of worker’s claims either concerning commerce on or over water.[1] Maritime trading has been prevalent in India since time immemorial both within and outside the extent of its oceanic boundaries. Subsequently, to supervise the flow of carriage of goods via the sea route, ensure protection and proper maintenance of trading ships, regulate the registration and marine insurance, essential legislations have been promulgated. The multifarious arena of maritime laws includes key topics such as admiralty laws (acquisitions and transfer of interest in ships, ship mortgages, collisions), marine insurance laws, marine pollution (environment protection, public law regime) and so on. Maritime laws are private in nature whereas its counterpart known as ‘The law of the sea’ comes under the ambit of public law and formulates general principles apropos to the maritime zones, claims pertaining to jurisdiction, settlement of disputes, regulations concerning mining and utilization of natural resources.

A HISTORICAL GLANCE AT MARITIME LAWS

Trading through high seas has prevailed for centuries and several historical records claim testimony to the fact that in ancient and medieval times, various merchants led voyages to India to exchange raw materials and products in order to boost their trading businesses. Later, the British East India Company shipped large amounts of spices and also established three presidencies where great maritime centers could be developed. Moreover, the colonial government implemented various laws namely the Inland Steam Vessels Act, 1917, the Indian Ports Act, 1908, the Control of Shipping Act, 1947 and so on. However, in the post-independence era, the Indian government resorted to improvising the existing coastal practices to ensure safe and productive maritime trade by enacting myriads of new rules and ordinances. Even after independence, the jurisdiction granted to admiralty courts in India stayed largely with colonial powers and only post the landmark judgement of M.V.Elisabeth v. Harwan Investment and Trading Pvt. Ltd.[2], Indian high courts were granted unrestricted jurisdiction and principles of the International Convention on Maritime laws were recognized to govern maritime claims.[3]

CONVENTIONS UNDER THE AUSPICES OF THE INTERNATIONAL MARITIME ORGANISATION

Shipping is an international enterprise and can work efficiently with the help of basic regulations and standards which are agreed, adopted and implemented internationally. International Maritime Organization is one such forum that creates a framework stipulating regulations for the shipping enterprise and is a globally reckoned standard-setting authority ensuring safety, security and proper environmental conduct of international shipping. It covers all aspects concerning international shipping like the design of ships, construction, operation of vessels and promotes sustainable shipping along with sound maritime development. Being the United Nations specialized agency, its objectives are structured in tandem with the UN SDG’s.[4]India has been a member of IMO since 1959. Several conventions have been adopted by the IMO to which India is a signatory. Some of them are listed as follows[5]

  • International Convention for the Safety of Life at Sea 1974 (as amended SOLAS, 1974).
  • International Convention on Tonnage Measurement of Ships, 1969
  • Convention on Facilitation of International Maritime Traffic 1965 (as amended FAL,1965)
  • Special Trade Passenger Ships Agreement, 1971
  • International Convention on Standards of Training Certification and Watch-keeping for seafarers, 1978
  • International Convention on Salvage,1989

LANDMARK JUDGEMENTS

Some landmark verdicts in the sphere of maritime laws are as follows-

  • British India Steam Navigation Co. v. Shanmugavilas Cashew Industries-[6] The verdict by the Apex court stated that the jurisdiction of Indian Courts only extended to the territorial waters and no Indian legislation can deprive the foreign ships or foreigners of their rights until they enter the specified Indian territorial waters.
  • The republic of Italy v. Union of India[7]– Also known as the Enrica Lexie’s case, the supreme court primarily set aside the judgement delivered by the Kerala High Court stating that it did not have any jurisdiction to handle issues including the investigation pertaining to the Italian marines. The apex court further ordered the formation of a special court to conduct the case proceedings.
  • V. Sea Success I v. Liverpool and London Steamship[8]– the Supreme Court held that the application of principles laid down in the 1999 Geneva Arrest Convention to India is valid on matters regarding Admiralty.
SHIP ARRESTS – JURISDICTION AND PROCEDURE

Ship arrests refer to a process through which a ship is restricted from indulging in trade or moving till the time the matter in question is adjudicated. The admiralty courts are granted exclusive jurisdiction to order for a vessel’s detention in order to secure a maritime claim. There are several grounds based on which ship arrest is ordered such as loss of life, collision, execution of a decree, salvage and so on.[9]

  • Jurisdiction of Indian Courts- Earlier, the Admiralty Courts Act, 1861[10] vested powers to deal with matters concerning admiralty to the three presidency courts[11]. However, in V. Elisabeth v. Harwan Investment and Trading (1993)[12], the Supreme Court expanded the scope of admiralty jurisdiction in India. It further observed that the high courts are courts of record having both original and appellate jurisdiction. Moreover, unless it is expressly or impliedly barred or subject to appellate or discretionary jurisdiction of the court, high courts to a large extent have unlimited jurisdiction including the capability to determine their powers. As a result, presently, the extent of jurisdiction has been widened and the High courts of Gujarat, Andhra Pradesh, Orissa and Kerala are the courts (coastal regions) empowered to handle admiralty matters.
  • Procedure- The law regarding a vessel’s arrest in rem is laid under section 5 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. Herein, as stipulated by the section, the high court can order for a vessel’s arrest within its specified jurisdiction on certain mandated grounds namely that the demise charterer of vessel holds liability for the claim or claim is regarding ownership, possession or owner of vessel holds liability for the claim and so on. Once the warrant for arrest is issued, the vessel’s owner can either settle the claim or challenge the arrest. Post furnishing the security for the claim, the vessel is allowed to sail.[13]
CONCLUSION: PROSPECTIVE OF MARITIME LAW IN INDIA

The Indian Ocean is on the verge of becoming a dominant global geostrategic and economic power and the marine sector can serve as a strong pillar of the blue economy by boosting its prospects. A pioneering effort by the Federation of Indian Chambers of Commerce involves the report titled ‘Blue Economy Vision 2025: Harnessing Business Potential for India Inc and International Partners’. Moreover, the idea behind the draft national maritime policy emphasizes the metamorphosis of India from a brown to a blue economy and further suggests the framing of comprehensive maritime security. To cull out the gist, maritime laws are inextricably connected with the country’s development and multifaceted contours of India’s strategy towards [14]maritime security can further be reckoned by perusing through the key aspects of the Indian Naval Strategic Publication titled ‘Ensuring Secure Seas: Indian Maritime Security Strategy’(October 2015)[15] and by way of enactment of stringent regulations.[16]

Author(s) Name: Jasleen Bedi (University School of Law and Legal studies, GGSIPU)

References:

[1] STA Law firm, ‘ India: Ship arrests and Indian Maritime Law’ (Mondaq, 24 June 2019) < https://www.mondaq.com/india/marine-shipping/817974/ship-arrests-and-indian-maritime-law> accessed 22 December 2021

[2] M.V. Elisabeth v Harwan Investment [1993] SC, [1993] AIR 1014

[3] Sanchit Meena, ‘Maritime Laws in India’ (Lex Forti, 30 September 2021) <https://lexforti.com/legal-news/maritime-laws-in-india/> accessed 23 December 2021

[4] International Maritime Organisation < https://www.imo.org/en/About/Pages/Default.aspx> accessed 21 December 2021

[5] Directorate General of Shipping(International Legislation)< https://www.dgshipping.gov.in/Content/PageUrl.aspx?page_name=ShipManualChap10>  accessed 21 December 2021

[6] 1990 SCC (3) 481

[7] Abhinav Mishra, ‘Enrica Lexie’s Case- India v Italy’(Christ University Law Journal 2017) <
https://journals.christuniversity.in/index.php/culj/article/download/1917/1589/3647> accessed 21 December 2021

[8] M.V. “Sea Success I” vs Liverpool And London Steamship, 5 November, 2001<https://indiankanoon.org/doc/368194/> accessed 22 December 2021

[9] STA Law firm, ‘ India: Ship arrests and Indian Maritime Law’ (Mondaq, 24 June 2019) < https://www.mondaq.com/india/marine-shipping/817974/ship-arrests-and-indian-maritime-law> accessed 22 December 2021

[10]Admiralty Courts Act,1861

[11] Under section 9 of the Act, each High Court had “all such powers and authority for and in relation to the administration of justice” including original and appellate jurisdiction over civil, criminal, admiralty, vice-admiralty, testamentary, intestate, and matrimonial matters. These high courts were established in three presidency states.

[12] M.V. Elisabeth v Harwan Investment [1993] SC, [1993] AIR 1014

[13] The Admiralty (Jurisdiction and settlement of maritime claims) Act,2017

[14] FICCI, ‘Blue Economy Vision 2025: Harnessing Business Potential for India Inc and International Partners’, <https://ficci.in/spdocument/20896/Blue-Economy-Vision-2025.pdf > accessed 23 December, 2021

[15]Indian Navy, ‘Ensuring Secure Seas: Indian Maritime Security Strategy’ October 2015, < https://www.indiannavy.nic.in/sites/default/files/Indian_Maritime_Security_Strategy_Document_25Jan16.pdf> accessed 23 December, 2021

[16] Diva Rai, ‘Maritime Law’ (2020).

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