The foundation of Indian maritime law was laid at the same time as the codification of British maritime law. Despite some fundamental changes to British maritime law after independence, issues related to jurisdiction and enforcement of maritime claims are addressed under the various colonial laws in force. , Was enacted until 1891.
Compared to other ship maneuvering countries, India’s statutory maritime law introduces various legislation by Indian legislators, including the 2020 Major Port Authority Act, the 2019 Ship Recycling Act, and the 2021 Inland Vessel Act. Is far behind. And Maritime Law 2021.
It is mentioned here that in the absence of legislative action, Indian courts, most importantly, by reading the Indian Navy Law, two arrest treaties of 1952 and 1999, respectively, by judicial intervention. It is appropriate to mention that we had to intervene to fill in some. ..
Supreme Court MV Elizabeth & Orus. versus Harwan Investment Trading Co., Ltd. [1993 Supp (2) SCC 433] When Liverpool and London SP & I Associations Ltd.v. MVSeaSuccess I [(2004) 9 SCC 512] I read two arrest treaties in the Navy jurisdiction of India, respectively, the 1952 and 1999 arrest treaties.
In 1986, a committee led by then-Mumbai’s Director of Shipping, Praveen Singh, reviewed existing maritime law, stating that the court’s jurisdiction over maritime law was outdated, and was under the jurisdiction of Admiralty.
The Commission’s recommendations were accepted and the Admiral Bill was submitted in 1993, 1999, 2005, 2009, and 2012 prior to Parliament. However, it was in 2017 that the jurisdiction and resolution of maritime claims in 2017 was passed by Parliament (“2017 law“).Then see the notice dated 22ndnd In February 2018, the law came into effect on the 1stst April 2018.
Introduction of Indian Maritime Law
The law is divided into four chapters, including 18 sections. There are three important aspects of the law-
- Expansion of court jurisdiction,
- Authorize and resolve shipping claims / disputes,
- The right to arrest or sell a vessel related to a maritime dispute.
Admiralty law works in completely different territories, but it is a special law that gives certain higher courts jurisdiction over maritime law. This is a special law concerning the jurisdiction of the Marine Headquarters, legal proceedings related to ships, arrest, detention, sale of ships, and other related matters.
Priority determination is an issue related to and / or associated with the sale of vessels. However, due to the variety of sources of information, it seems that the law will eventually have certain provisions that require judicial interpretation. Therefore, the preamble can play an important role in assisting judicial interpretation.
Application of Indian Maritime Law
This law applies to all vessels within the jurisdiction of the High Court, that is, within the territorial waters under the jurisdiction of a particular High Court. This is not related to the ship’s registration / flag (including ships with the Indian flag) or the owner’s place of residence. However, this law limits jurisdiction and makes some exceptions within the scope of Admiralty jurisdiction. It is appropriate to note that Section 1 (2) also settled a long-standing judicial dispute. Arrest of an Indian flag ship under the Indian Maritime Law.
Article 3 (1) of the law extends the jurisdiction of the Navy to the High Courts in the coastal states of India and extends to the territorial waters. The Calcutta High Court, Bombay, Madras, Karnataka, Gujarat, Orissa, Kerala, Telangana and Andhra Pradesh’s Hyderabad High Court have been awarded to Admiral Jurisdiction or other High Courts. Central government. From now on, the jurisdiction of various High Courts will be restricted to their respective territorial waters, and it will not be possible to pass the pan-Indian arrest order.
This law provides for the ruling of identified maritime claims and the securing of such maritime claims by the arrest of a vessel in certain circumstances. Article 4 of the law provides a complete list of maritime claims, as well as the 1952 and 1999 arrest treaties. The wording of the law indicates that a vessel can only be arrested for safety with respect to the maritime claims listed in Section 4. Subsection (2) of Section 4 states:While exercising jurisdiction under subsection (1), the High Court may settle unpaid and unsettled accounts between the parties in connection with the vessel.“. This explanation is problematic because it seems to deviate from the established principles of maritime law. It seems to empower the maritime court to rule non-admiralty claims.Unsolved and unstable‘Occurs between the parties, not only in problematic / arrested vessels, but in relation to any vessel.
Arrest and sale of ships
The legal system related to the arrest and sale of vessels is covered in Sections 5-8 of the 2017 Act. In addition to these provisions, the Admiral Regulations of the respective High Courts shall be revealed in dealing with the arrest and sale of vessels in India. Sections 5 and 6 of the 2017 Act provide for how to exercise admiralty jurisdiction. This can take the form of actions in Rem or in Personam. Article 7 of the Act provides for restrictions on individual behavior in certain cases. Section 8 of the 2017 Act deals with the establishment of rights to the sale of vessels.
Article 5 of the Act is designed to provide security against maritime claims, subject to the court’s satisfaction with the anvil of the “reason for belief” test. For the purpose of arresting the vessel in which the complaint occurred, this section must first identify the person responsible for the personality when the cause of action arises.
That person is either the owner, the charterer, or the person who owns or controls the invoiced ship. In addition, Section 5 (2) allows the arrest of sister ships. When Section 5 (2) is read in conjunction with Sections 5 (1) (a) and 5 (1) (b), the High Court orders the arrest of other vessels on behalf of the vessel subject to the maritime claim. It also stipulates that it can be done. It was made.
It is appropriate to note that only one vessel can be arrested and multiple vessels cannot be arrested. If the charterer’s demise vessel is arrested, the other vessel may be the charterer’s own vessel or a chartered vessel. However, sister ships are subject to Article 5 (1).
The 2017 Act abolishes four archaic maritime laws that were applied in India: (a) 1861 Maritime Court Act, (b) 1890 Colonial Maritime Act, and (c) Maritime Colonial Court (India). To do. ) The provisions of the Letters Patent of 1865, as long as it applies to the law, 1891, and (d) the maritime jurisdiction of Bombay, Calcutta, and Madras High Court. These provisions will be redundant with the enactment of this law.
Legislators wanted to present this law as a self-contained codeHowever, some provisions are ambiguous in nature and some have been omitted. Some sections lack clarity and will require judicial intervention in the future.
This law deviates significantly from the widely accepted concept established by the Arrest Treaty. There are certain areas that are left unattended by law.
There are no provisions regarding the release of ships when providing security. There is also no provision for re-arrest / multiple arrests of vessels. Security will be arrested while the arbitration is pending or, in that regard, something about the actual owner of the ship.
Indian maritime law is an outward legislation and is therefore considered to represent the general level of Indian legislation and the level of commercial and legal knowledge of the legislature on international platforms. .. Therefore, it was crucially necessary to enact concise legislation while minimizing the scope and requirements of judicial interpretation and intervention.
However, as mentioned earlier, the law leaves plenty of room for judicial intervention and interpretation. In this regard, the authors authored that in interpreting the 2017 Act, the Maritime Court should ensure a commercially practical and progressive interpretation, i) various international treaties, including the aforementioned arrest treaties, and ii). Humbly submit not to hesitate to import other relevant principles. Classic sources of maritime law as described above.
Even more humbly, a great example of such an approach by the Hombre High Court in Bombay Shem offshore A case in which the Hon’ble Court enforced the principles of arrest and security for arbitration in the context of India, as set forth in Article 7 of the 1999 Arrest Convention.
For more information on this topic and other related topics, see the upcoming book, “Introducing the Law of the Sea in IndiaWritten by Adv. Published by Rahul Rajpurohit and Bloomsbury Publications. The official release of this book is scheduled for the second week of February 2022.
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2017 Indian Maritime Law-Interpretation and Effects
https://www.shippingandfreightresource.com/indian-admiralty-act-2017-interpretation-and-effect/ 2017 Indian Maritime Law-Interpretation and Effects