Author: Roopa S., Sri Sharada School of law
Email id; [email protected]
Abstract
The Admiralty/Maritime Law is a specific branch of law that governs disputes and offences related to sailing on the sea or trading on the sea. It comprises both domestic laws governing maritime activities and private international law. It regulates relationships between private entities which operate ships/vessels on the oceans, such as maritime trade and other nautical aspects. This article discusses the Admiralty Law as a concept, and talks about its development and jurisdiction. It analyses the new act of Admiralty that was introduced in 2017 and its future in India.
Introduction
Maritime domain is crucial for India’s security, stability, economic well-being and sustainable developmental needs. There are two geographical factors that puts the Indian maritime sector at an advantageous position – the vast coastline spanning 7500 km; the two strategically located islands- Lakshadweep, and Andaman and Nicobar Islands (ANI) along major shipping highways.
Admiralty law is another name for domestic maritime law. Maritime law is private in nature. Its public law counterpart is known as the Law of the Sea. The terms ‘admiralty’ and ‘maritime’ are often used interchangeably but earlier this was not the case earlier.
In simple words it is, “a set of rules and regulations which govern the matters relating to sea and ships.”
Black’s Law dictionary defines maritime Law as, “the body of law governing marine commerce and navigation, the carriage at sea of persons and property, and marine affairs in general; the rules governing contract, tort and workers’ compensation claims or relating to commerce on or over water.”
The above definitions cover a wide range of maritime-related practices, but now with the advancement of law, the maritime law is comprehensive, and it encompasses all the matters relating to sea and ships. These laws cover a variety of cases including contracts, disputes, torts, injuries, and other offenses that take place on any navigable water incidents of navigation (collision, salvage/towage); marine insurance (marine policy, insurable interest, indemnity); marine pollution (liability claims, public law regime, environment protection and natural resource conservation) etc.
The Law of the Sea, on the other hand, lays down general principles related to maritime zones, rules of mining, exploitation of natural resources, dispute settlement (boundary dispute, dispute related to resource allocation/ exploitation), piracy, jurisdictional claims, issues in hot-pursuit etc.
Admiralty Jurisdiction in India
Admiralty Jurisdiction can be defined as the jurisdiction that confers power on courts to try offences that are committed on high seas.
The Admiralty Act seeks to consolidate the existing laws relating to admiralty jurisdiction, admiralty proceedings on maritime claims, maritime lien, arrest, detention, sale of vessels and other connected matters.
Tracing back to History and development of admiralty law
In the 19th century, the British Maritime trade had grown tremendously, some acts passed by the British Parliament increased the jurisdiction of the High Court of Admiralty in England. However, to bring uniformity between the jurisdictions of the High Court of Admiralty in England and various British colonies, the British Parliament enacted Colonial Courts of Admiralty Act of 1890, which empowered the Indian legislatures to declare certain courts in India as colonial courts in admiralty.
These courts had the same jurisdiction as the English courts. Therefore, the Colonial Courts of Indian Admiralty Act was passed in 1891, by which the High Courts of Calcutta, Madras and Bombay were declared as courts of Admiralty.
With this, the High Court of Bombay emerged as a court with jurisdiction in admiralty matters in India. Various other high courts of India were subsequently given such kind of jurisdiction. When India became independent, such laws continued under Article 372 (Continuance in force of existing laws and their adaptation).
Admiralty (Jurisdiction and settlement of maritime claims) Act, 2017
Until the enactment of the new Act, the admiralty jurisdiction vested by the various archaic British laws were in the High Courts of Bombay, Madras and Calcutta. With the enactment of the new Act under Section 3 read with Section 2(1)(e) of the Admiralty Act 2017, this extends and vests admiralty jurisdiction to the High Court of Hyderabad, Gujarat, Kerala, Orissa, and Karnataka. With the notification in the official gazette, the Act allows the central government to extend the jurisdiction over any other High Court.
“The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017” includes 18 sections divided into four chapters. The purpose of this act is for legal proceedings in connection with vessels, their arrest, detention, sale, maritime claim and maritime lien, among others.
An order of “Bombay High Court” can be executed anywhere in Indian territorial waters. The case is not the same in Gujarat, Madras, Calcutta, Andhra Pradesh and Orissa High Courts, where they have admiralty jurisdiction over their state territorial waters only.
Application of the Indian Admiralty Act
The Act applies to every vessel within the jurisdiction of the High Court i.e. within the territorial waters under the jurisdiction of the particular High Court. However, the Act limits the jurisdiction and creates some exceptions to the extent of admiralty jurisdiction. It is pertinent to note that Section 1 (2) has also settled a long-standing judicial debate viz. arrest of Indian flagged vessels under Indian admiralty law.
Jurisdiction
No Pan-India arrest order can be passed as the jurisdiction of the various High Courts has been restricted to their respective territorial waters.
Maritime Claims
The Act provides for adjudication of identified maritime claims and securing such maritime claims with the arrest of vessels in certain circumstances. Section 4 of the Act provides an exhaustive list of maritime claims, similar to the 1952 and 1999 arrest conventions. A vessel can only be arrested for security with respect to maritime claims listed out in section 4. The sub-section (2) of section 4 states that “While exercising jurisdiction under sub-section (1), the High Court may settle any account outstanding and unsettled between the parties in relation to a vessel”. This explanation is problematic as it seems to depart from established principles of admiralty law, though it seems to empower admiralty courts to adjudicate upon non-maritime claims ‘outstanding and unsettled’ between the parties, arising in relation to any vessel and not just the offending/arrested vessel.
Ship Arrest and Sale of the Vessel
In sections 5 to 8 of the 2017 Act, the legal regime relating to ship arrest and sale is addressed. Along with these provisions, the Admiralty rules of the respective High Courts will also be in the picture while dealing with the ship arrest and sale in India. Section 5 and 6 of the 2017 Act will be the mode of exercise of the admiralty jurisdiction. This could take the form of action in rem or action in personam. Section 7 of the Act sets out the restrictions on actions in personam in certain cases. Section 8 of the 2017 Act deals with the vesting of rights on the sale of vessels.
Section 5 of the Act has been framed for the purpose of providing security against a maritime claim subject to satisfaction of the Court on the anvil of the “reason to believe” test. For the purpose of arresting the ship in connection with which the claim arose, the section requires that the arresting claimant must identify first the relevant person who would be liable in personam when the cause of action arose.
That person can be either the owner, or the demise charterer, or the person could be the one in possession or control of the ship due to which the claim arose. Further, Section 5(2) permits sister-ship arrests. Section 5(2), if read with section 5 (1)(a) and 5(1) (b), mentions that the High Court could order the arrest of any other vessel in lieu of the vessel against which a maritime claim has been made.
It is pertinent to note that only one vessel can be arrested and not multiple vessels. In case of a demise charterer ship arrest, the other ship could be a demise charterer’s own ship or demise chartered vessel. But, what constitutes a sister-ship would be subject to Section 5(1).
Consolidated Act
The 2017 Act revokes the four outdated admiralty laws which were applicable in India.
(a) The Admiralty Court Act, 1861, (b) The Colonial Courts of Admiralty Act, 1890, (c) The Colonial Courts of Admiralty (India) Act, 1891, and (d) The provisions of the Letters Patent, 1865.
So far, it is applied to the admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts. With the enactment of the new legislation, the older provisions would become obsolete.
Although the legislators wanted to present this Act as a self-contained code, some provisions are ambiguous in nature and have some omissions. Some sections do not have clarity and will require judicial intervention in the future.
There was a critical need for enactment of a brief statute, with negligible scope and necessity for judicial interpretation and intervention.
The Act does hold potential for judicial intervention and interpretation. The Admiralty courts while interpreting the 2017 Act, and working to ensure a commercially practical and progressive measure, should not hesitate from bringing on valid principles of i) various international conventions including the aforementioned Arrest Conventions and ii) the other classical sources of admiralty law as mentioned above.
Conclusion
Many aspects contribute to the development of a strong, sustainable maritime sector in India. Some of the major initiatives taken by the government to promote shipping in India are blue economy for economic sustainability and development.
SAGARMALA for modernisation of the existing port infrastructure and building productive ports along the Indian coastline.
Though the importance of the maritime domain has been appreciated, this is not enough to make India a maritime power. Currently, ocean and maritime issues are dealt with by multiple ministries and departments with different priorities. The government must ensure that India’s entrepreneurial spirit is encouraged by fostering and creating a suitable environment in a fair, regulatory framework and timely financial incentive to compete globally.
The centre–state interaction in the maritime domain should work in the spirit of cooperative federalism towards achieving outcomes. A comprehensive government approach towards developing a Blue Economy will require a deep understanding of the maritime domain.
References:
1. The Admiralty Act, 2017 (February 08, 2020, 09:04 AM IST), http://www.manupatrafast.in/NewsletterArchives/listing/Hariani/2018/Feb/The% 20Admiralty%20(Jurisdiction%20and%20Settlement%20of%20Maritime%20Claims) %20Act,%202017.pdf
2. The Admiralty Act, 2017 (February 08, 2020, 11:08 AM IST), https://www.inhousecommunity.com/wp-content/uploads/2018/07/Clasis16-7-18The-Admiralty-Jurisdiction-and-Settlement-of-Maritime-Claims-Act-2017….pdf
3. India: Maritime Lien In India (February 09, 2020, 12:04 AM IST), https://www.mondaq.com/india/Transport/208090/Maritime-Lien-In-India
4. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2016 (February 08, 2020, 1:54 PM IST), https://www.prsindia.org/billtrack/admiralty-jurisdiction-and-settlement-maritime-claims-bill-2016
7. https://www.forbesindia.com/blog/life/indian-maritime-sector-on-the-cusp-of-revolution/
8https://indiafoundation.in/articles-and-commentaries/indias-maritime-economy-driving-indias-growth/
9. https://www.shippingandfreightresource.com/indian-admiralty-act-2017-interpretation-and-effect/
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