Topic : Concept of Admiralty Jurisdiction in India

Rakshita Data1

Abstract

“Under the admiralty jurisdiction there are certain concepts such as action in rem, arrest of a
ship, maritime lien etc. which had developed over several centuries due to the exigencies of the
sea trade. The transitory nature of ships which always are in a state of motion required the
development of these unique concepts so that some degree of control could be exercised to
enforce claims against the ships. This is because ships during the course of their voyages create
rights and incur liabilities, but the ownerships of these ships are transient and unknown.
Therefore, it would be very difficult to trace the true owner of a ship and lodge claim against
owner.”

“The purpose of this paper is to trace the historical development of admiralty jurisdiction, the
jurisdictional concepts such as the in rem jurisdiction, the maritime lien and the arrest of ship, the
efforts in India to codify admiralty jurisdiction by the introduction of the Admiralty Bill, 2005,
and the current status of the Indian law which requires immediate reform.”

Introduction

“The importance of maritime trade in an increasingly globalized world has spurred the Indian
government to action over the last few years, to reform the various archaic laws governing
maritime relations and claims in India. One of the new laws that has been introduced as part of
this reform process is the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act,
2017. This Act has been enacted and received the assent of the President, but has yet to be
brought into force”.

“The Admiralty Jurisdiction Act seeks to consolidate the laws relating to admiralty jurisdiction
(the jurisdiction to deal with maritime claims), legal proceedings in connection with vessels,
their arrest, detention and sale and other connected matters”.

1
Student, B.B.A. LL.B.(Hons.), 4th Year, NMIMS School of Law, Mumbai
Historical Development of Admiralty Jurisdiction in India

 The admiralty jurisdiction of Indian courts started with the Letters Patent which conferred
admiralty jurisdiction on the Chartered High Courts of Calcutta, Bombay and Madras. Clause
32 of the Letters Patent of 1865 stated that the Letters Patent Court “shall have and exercise
all such civil and maritime jurisdiction as may now be exercised by the said High Court as
admiralty or vice-admiralty”.2
 “Subsequently, this jurisdiction was enlarged for colonial courts by the Colonial Courts of
Admiralty Act, 18903, which was extended to India by the Colonial Courts of Admiralty
(India) Act, 18914. Thus by the latter Act the Chartered High Courts in India were vested
with the admiralty jurisdiction which was enjoyed by the High Court of England”.5
 “This position continued under the Government of India Act, 1915. Section 106 6 of the said
Act specifically provided that all the High Courts established by the Letters Patent were
courts of record and had such original and appellate jurisdiction, including admiralty
jurisdiction.”
 “Section 223 of the Government of India Act, 1935 also stated that the High Courts shall
have the powers and jurisdiction that they had enjoyed before. After independence and the
coming into force of the Constitution of India the admiralty jurisdiction was protected by
Article 225 which stated as follows”:

“The jurisdiction of and the law administered in any existing High Court, and the respective
powers of the judges thereof in relation to the administration of justice in the Courts,
including the power to make rules of Court and to regulate the sittings of the Court and of the
members thereof sitting alone or in Division Courts, shall be the same as immediately before
the commencement of this Constitution.”

 Then the admiralty jurisdiction after the advent of the Constitution of India has been
summarized by the Supreme Court in M.V. Elisabeth v Harwan Investments and Trading

2
151st Report on Admiralty Jurisdiction in India, Law Commission of India, 1994
3
Colonial Courts of Admiralty Act, 1890 (Repealed)
4
Colonial Courts of Admiralty (India) Act, 1891 (Repealed)
5
Ibid.
6
Government of India Act, 1915 (Repealed)
 Ltd.7, which acted as the law of the land, and the admiralty and maritime matters were settled
under the said precedent.
 “Thereafter, admiralty jurisdiction was examined by the Law Commission of India in 1992.
The Ministry of Shipping initiated the process of drafting the Admiralty Bill in accordance
with the Law Commission’s recommendations. A draft bill was planned to be introduced in
Parliament in 1998. However, it could not be achieved due to the very short duration of the
first Vajpayee-led government”.8
 “Finally, the bill was introduced in Parliament in May 2005. The bill was referred to a
Standing Committee which submitted its report in March 2006. The bill was revised and
circulated as Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill 2009 for
consultation. However, due to the dissolution of 14th Lok Sabha, the bill lapsed. The bill
went through a further process of revision through inter-ministerial consultation during the
15th Lok Sabha. Due to apprehensions about some provisions of the Admiralty Bill 2009,
extensive consultations with shipping and trade associations were undertaken.” Finally, 24
years after necessity of a responsive legislation for maritime dispute resolution was voiced,
the Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill 2016 has been approved
by the cabinet.9
 “The new Admiralty Jurisdiction Act expressly vests admiralty jurisdiction in the High
Courts of all the coastal states in India, i.e., the Calcutta High Court, the Bombay High Court,
the Madras High Court, the Karnataka High Court, the Gujarat High Court, the Orissa High
Court, the Kerala High Court and the Hyderabad High Court.” Each court has jurisdiction
over waters up to (and including) its territorial sea waters. “The Act also permits the Central
Government to vest admiralty jurisdiction in other High Courts, and extend the jurisdiction of
the High Courts, by notification. Every new High Court that has acquired admiralty
jurisdiction under the Admiralty Jurisdiction Act will now need to frame its own rules for the
exercise of this jurisdiction10.”

7
(1993) Supp. 2 SCC 433
8
Shyam Nandan, Admiralty Jurisdiction in India: Pre and Post Elizabeth, Journal of the Indian Law Institute
Vol. 49, No. 1 (JANUARY-MARCH 2007), pp. 81-101, https://www.jstor.org/stable/43952077?read-now=1&seq=1
9
The Admiralty (Jurisdiction And Settlement Of Maritime Claims) Bill, 2016, Legislative Note Lok Sabha,
No.10/LN/Ref./January/2017
10
Ibid.
Jurisdictional Concepts

“Jurisdiction is part of the sovereignty of courts in a country. Jurisdiction is exercised by a court

either in personam or in rem. In personam jurisdiction is exercised over the person who is
present within the jurisdiction of the court. In personam jurisdiction can be either territorial or
pecuniary or subject matter. In rem jurisdiction is exercised over a res or a property which is
present within the jurisdiction of the court. Here instead of a living person the res or property is
treated as a person and jurisdiction is exercised by the court. The res is the defendant in the
case11.”

Action in Rem and Personam with Respect to Arrest of Ships

“In rem jurisdiction is a unique feature of admiralty jurisdiction. In rem jurisdiction is

commenced before an admiralty court by initiating an action in rem. It is a peculiar concept
known only to Anglo-Saxon law. In this case jurisdiction is assumed by court by the arrest of a
ship in respect of any ‘maritime claim’ irrespective of the place of registration of the ship or the
nationality, place of business, domicile, or residence of its owner or the place where the cause of
action arose.” Thus this concept is markedly different from Sections 15 to 20 CPC12 where the
jurisdiction of a court depends on the place of residence or business of the defendant, the place
where the subject matter of the dispute is located or the place where the cause of action has taken
place. “Action in rem can also be commenced against a sister ship in a claim. The foundation of
action in rem is the maritime lien. Arrest of a ship in pursuance of an action in rem is to be
distinguished from other kinds of arrests of ships. Action in rem is different from the arrest of a
ship in execution of a decree obtained against the owner of the ship. In the former case the ship is
treated as a person having rights and liabilities, which are sometimes distinct from the owner. Its
liabilities are enforced by process and decree against the vessel. The judgment against the ship is
binding upon all persons interested in her and conclusive upon the world13.”

“But with the advent of new Bill, Courts with admiralty jurisdiction exercise their authority over
both vessels within their territorial waters (jurisdiction in rem) and persons within their territory
11
Admiralty, RL Datta & Co., http://www.rldco.co.in/admiralty.php
12
Code of Civil procedure, 1908
13
Dr. Omana George, Admiralty Jurisdiction and Ship Arrest in India, International Journal of Current Research
Vol. 7, Issue, 07, pp.18034-18037, July, 2015
(jurisdiction in personam). The Admiralty Jurisdiction Act specifies the circumstances in which
courts can exercise both these types of jurisdiction. The Act also sets out certain procedures to be
followed on the arrest or sale of vessels.” The Act provides that any vessel ordered to be arrested
or any proceeds of a vessel on sale under this Act will be held as security against any claim
pending the final outcome of the admiralty proceeding. “Further, a claimant seeking the arrest of
a vessel may be required to furnish an unconditional undertaking on the terms determined by the
High Court to secure the defendant from any loss or damage that may result due to such arrest
(for example, if the arrest is wrongful or unjustified). The Act also provides that the High Court
ordering the sale of a vessel can determine any questions relating to the title to the proceeds of
the sale.”14

International Convention on Law of the Sea

“All foreign Merchant Ships and persons fall under the jurisdiction of the Coastal State as they
enter its waters subject to the rights of innocent passage. The Coastal State is free to exercise
jurisdiction over these ships. Such ships are subject to the local jurisdiction in criminal and
administrative matters. The Coastal States are also entitled to exercise jurisdiction in respect of
maritime claims against foreign merchant ships lying in their waters. These ships are liable to be
arrested and detained for the enforcement of maritime claims. The Courts of the Country in
which a foreign ship had been arrested may determine the case according to merits provided they
are empowered to so as per the domestic law or according to the Arrest Conventions of 1952 and
199915.”

Maritime Liens
“A maritime lien is a special type of maritime claim that continues to exist over a ship or vessel
despite any change of ownership, registration or flag. The Admiralty Jurisdiction Act lists which
claims will result in a maritime lien over a vessel and describes the order of priority to be given
to maritime claims where multiple such claims are made16.”

14
Supra Note 12.
15
International Convention for the unification of certain Rules Relating to the arrest of sea going ships 1952
16
Hariani & Co., The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, Manupatra, Feb. 2018,
http://www.manupatrafast.in/NewsletterArchives/listing/Hariani/2018/Feb/The%20Admiralty%20(Jurisdiction
%20and%20Settlement%20of%20Maritime%20Claims)%20Act,%202017.pdf
“Existence of a maritime lien is the foundation for initiating an action in rem for the arrest of a
ship under the admiralty jurisdiction. Like any other lien, a maritime lien is also a claim or
privilege upon a thing to be carried into effect by legal process. However, the distinction
between a common law lien and the maritime lien is that in the case of maritime lien, the process
is by way of proceedings in rem.” The claim or privilege travels with the thing into whosesoever
possession it may come and it is inchoate from the moment the claim or privilege attaches.
“When carried into effect by legal process by proceedings in rem, the maritime lien relates back
to the period when it got attached first. Thus the two key aspects of the maritime lien are that it is
a right to a part of the property in res and that it is a privileged claim upon a ship in respect of
services rendered to or injury caused by the ship.”

“Traditionally, only five types of claims alone are treated as maritime liens. They are (i) Damage
done by a ship, (b) Salvage, (c) Seaman or Master’s wages, (d) Master’s disbursement and (e)
Bottomry. The Supreme Court has also accepted these five types of claims as only constituting
maritime liens in Epoch Enterrepots v MV Won Fu 17.” However, subsequent efforts on
unification of the law on maritime liens lead to International Conventions, which have widened
the scope of maritime liens by adding more heads of claims under maritime liens. “These
Conventions are the International Convention for Unification of Certain Rules Relating to
Maritime Liens and Mortgages at Brussels, 1926, The Revised International Convention for
Unification of Certain Rules Relating to Maritime Liens and Mortgages at Brussels, 1967, and
the Geneva Convention on Maritime Liens and Mortgages, 199318.”

Conclusion

“The Admiralty Jurisdiction Act is a much-awaited piece of legislation. It clarifies the admiralty
jurisdiction of Indian courts and codifies in a single statute much of what was previously only
stated in court judgments. Once the Act is brought into force, it will be a welcome reference
point for courts dealing with admiralty matters. In light of the changes brought in by the Act, it
would be prudent to revisit shipping documents including bills of lading, service contracts,
charter party agreements, contracts of affreightment, documents related to the provision of
services at various ports, etc. to ensure that these are in conformity with the new law.”

17
(2003) 1 SCC 305
18
Padmanabhan Krishnan, Admiralty Maritime Law of India – a Preview and Review, Researchgate, Vol. II.