An outlook of the Maritime laws in India

0
885
Maritime Law

India has rich history in dealing with sea trade as well as a variety of trading and non-trading practices via sea within and beyond the confines of the country. It was known in a range of historical records that in ancient time, there were several traders and merchants coming to India and going from India as well. Thus, there existed a variety of regulations, rules, and set of laws in this field from time immemorial. Subsequent to Independence, the government looked into the issue critically and enacted a mixture of statutes and laws to maintain a strong, efficient and continuously developing trade practices via sea. The Merchant Shipping Act, 1958 was enacted for assured rules as well as development in this field. Spaced out from this Act, we had diverse laws put forward by the British Government such as the Coasting Vessels Act, 1838, Inland Steam Vessels Act, 1917, as well as a range of other laws and regulations. However, all such laws were not in accordance with the prevailing Indian arrangement of Coastal trade. Thus, the Government implemented various fresh rules and regulations for the improvement of the prevailing set of practices of the coastal trade.

There are definite areas where the Government and its subordinates can look into matters concerning the offshore trade and shipping such as marine insurance, carriage of goods by sea, registration of ships, laws of ownership and ships sale and formulating contracts, ship dismantling, ships financing and mortgage, etc. The Government must also look upon certain environmental issues where an increase in marine business will increase the pace of pollution caused by the sea water as well as to the living creatures in it. Usually, a ship whether in the Indian waters or in the international high seas, all through its voyage is a subject matter of abundant deals and contracts that may produce odds for disputes.

In addition, issues can also for other reasons such as wages and allowances of the crew, collision, obligations to ports and other authorities, or even slaughter of life or individual hurt caused by ship or happening in association with the voyage.[1] Besides, maritime law in India,[2] as somewhere else in the world, is a wide-ranging division of the law, which means, it includes maritime liens, ship financing, carriage of goods by sea; laws of ownership and registration of ships; marine insurance; ship sale and building contracts; ship mortgages; limitation of liability; manning of ships; salvage; the law of collisions; Customs and Port laws; claims and priority of the same; the law of marine pollution, as well as the towage and pilotage. All of these domains are enclosed by numerous legislations in India, which are completely founded on colonial British legislations on the subjects, as made valid in India and as amended by the Indian Parliament from time to time basis.

Before delving into the theme of maritime legislations in India, it is fairly relevant to mark out its beginning in the English rules and regulations on admiralty jurisdiction and the control exercised by the English Courts in excess of foreign ships. The current maritime laws in India have developed from colonial times, such as 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[3] ; the Indian Merchant Shipping Act, 1923; the Control of Shipping Act, 1947; the Merchant Seamen (Litigation) Act, 1946; the Merchant Shipping Laws (Extension to Acceding States and Amendment) Act, 1949 etc.

Adding on to the abovementioned, a sequence of legislative Acts of British Parliament, promulgated between 1823 and 1940, governed a variety of domains of Indian shipping, including ship-owners’ liability, certification of seafarers, salvage, safety and load line conventions. For determining the issues, the admiralty jurisdiction of Indian Courts had a beginning with Letters Patent, 1862 which vested the High Courts of Judicature at Bombay, Madras and Fort William in Bengal with control for adjudication and trial of maritime disputes arising in India[4] , which was however, established by the Colonial Courts of Admiralty (India) Act, 1891.[5] By the Colonial Courts of Admiralty Act, 1890, the requirements of the Admiralty Court Act, 1840, and the Admiralty Court Act, 1861, were made relevant to Courts in British India, as they were Courts of law in British ownership.[6]

Post-independence, the jurisdiction of Admiralty Courts in India were as well limited to the claims as enumerated in the aforementioned British legislations, however, in 1993, the SCI in M. V. Elisabeth[7] firmly opined that High Courts in India are greater Courts of records with limitless jurisdiction with inbuilt and plenary powers to make a decision on their own jurisdiction to restore grievances according to what is professed to be principles of justice, equity and good conscience where law is unspoken and judicial intervention is necessary. Therefore, the SCI prepared the principles of International Convention on Maritime Laws appropriate in India’s common law in the place of the previous age British legislations since there was no Indian law prevailing the Courts’ jurisdiction with reference to the maritime claims. In 2005, the Government of India spread a drafted Bill for an Admiralty Act, 2005, which proposed to revoke all of the aforementioned outdated British legislations to bring into being an inclusive law to control the jurisdiction, claims, procedure, etc in admiralty law in India.[8] Though, it was shot down making the persistence of function of the old age British legislations for the reasons best recognized to the makers of law.

Edited by Dhruval Singh

Approved & Published – Sakshi Raje

Reference

[1] Ibid.

[2] The international character of maritime law, although heavily indebted to general principles of international law is subject to local laws in India.

[3] The Indian Ports Act, 1908 deals with the administration of the ports and the jurisdiction over ships in ports.

[4] See, Clause 32, the Letters Patent, 1862.

[5] Clause 32, ibid, explicitly declared the High Courts of Judicature at Madras, Bombay and Fort William in Bengal as Courts of Admiralty or of Vice Admiralty.

[6] By S.22 of the Supreme Court of Judicature (Consolidation) Act, 1925, the questions or claims in relation to which the High Courts had admiralty jurisdiction, were listed out, and those were the claims for which a claimant could approach the Admiralty Courts in India for reliefs.

[7] M. V. Elisabeth v. Harwan Investment and Trading Pvt Ltd., AIR 1993 SC 1014: (1993) Supp. 2 SCC 433. See also, Kamlakar v. The Scindia Steam Navigation Co. Ltd., LX II (B.L.R.) 995 to 1017; Rungta Sons Ltd. v. Owners and Master of Edison, 66 (C.W.N.) 1083; National Co. Ltd. v. M. S. Asia Mariner, 72 G.W.N. 635.

[8] “Admiralty Bill, 2005”, http://www.prsindia.org/billtrack/the-admiralty-bill-2005-160/, [accessed on 14th January 2013].