ADMIRALTY JURISDICTION IN INDIA: PRE AND POST ELIZABETH

Author(s): Shyam D. Nandan

Source: Journal of the Indian Law Institute , JANUARY-MARCH 2007, Vol. 49, No. 1
(JANUARY-MARCH 2007), pp. 81-101
Published by: Indian Law Institute

Stable URL: https://www.jstor.org/stable/43952077

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Indian Law Institute is collaborating with JSTOR to digitize, preserve and extend access to
Journal of the Indian Law Institute

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 81

ADMIRALTY JURISDICTION IN INDIA:

PRE AND POST ELIZABETH

SHIPPING AND maritime laws constitute one of the oldest branches

of law known to mankind. Historians have traced its origin to the
Rhodean Sea Laws and the Rules of Oleron1 . Once Britain became the
world's major sea power, the common law countries relied on the
jurisprudence evolved in the courts of England called the Court of the
Lord High Admiral or admiralty courts. Countries like the US today
have thereafter evolved a distinct maritime jurisprudence, which does
not always concur with English law.
The colonial courts were given powers akin to that of the admiralty
courts of England through various English statutes. India, even after
independence continued to adhere to these statutes, oblivious of legal
developments around the globe. However, the decision of the Indian
Supreme Court in the Mę V. Elizabeth 2 case raised several questions
and forced both the shipping community as well as the legislators to
introspect on the plight of maritime law in India.
This paper looks at admiralty laws in India from the perspective of
global trade. Ships, being the primary carriers of goods across the
globe have a vital role to play in international commerce. Those aspects
of admiralty jurisdiction, especially those having a bearing on
international trade, are highlighted. The power enjoyed by national courts
over ships, especially foreign ships, is of great importance. As a growing
power in international trade, India needs to mould the laws relating to
the maritime community, keeping in mind the larger global interest.

Admiralty jurisdiction of Indian courts before Elizabeth

History of admiralty jurisdiction

Admiralty law, as is known today, was developed in the courts of

the Lord Admiral in England, thereby the name. These courts functioned
independent of the common law courts. The courts of the Lord Admiral
were set up initially to deal with piracy on the high seas. But this has
subsequently metamorphosed into a civil jurisdiction (largely) dealing
with a variety of claims. The first statutory recognition of admiralty

1. See, Paulsen, W. Gordon, "A Historical Overview of the Development of

Uniformity in International Maritime Law" 57 Tulane Law Review 1065 (1983).
2. M.V.Elizabeth v. Harwan Investment Co. (1993) Supp 2 SCC 433.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
82 JOURNAL OF THE INDIAN UW INSTITUTE [Vol. 49 : 1

powers is seen in the Admiralty Courts Act of 1840 and

Due to persistent jurisdictional and jurisprudential conflict,
courts were merged with the High Court of England by th
Act, 1875. Today, the admiralty court exists as a division o
Bench.
The admiralty powers of the High Court of England were extended
to the colonial courts of original inherent unlimited civil jurisdiction
through the Colonial Courts of Admiralty Act, 1 890 and specifically to
the three chartered high courts in India through the Colonial Courts of
Admiralty (India) Act, 1891. In England, till 1947, the law developed
through further statutes like the Judicature Act, 1925. None of these
statutory developments were extended explicitly to the colonies including
India. National law generally specifies the kind of claims that can be
tried by a court with admiralty jurisdiction. These claims, called maritime
claims, constitute an extended list in many countries.

Peculiarities of admiralty jurisdiction

Normally legal claims are in personam by nature, i.e., they are

brought by one person against another. But in shipping industry and
particularly in connection with ships engaged in international trade, it is
not easy to trace persons, whether they are owners or charterers.
Ships engaged in international trade are mostly registered in countries
like Greece, Cayman Islands or Panama which offer less stringent
registration norms. This means that many of them are registered in the
name of shell companies or untraceable owners. Even if they can be
traced, bringing an action against them would be difficult owing to
jurisdictional issues and conflict of law dilemmas. The only other action
available is against the property in question, the res, i.e., the ship.
These actions, which constitute a peculiar facet of admiralty jurisdiction,
are called in rem actions.
It is unavoidable that jurisdictional issues crop up here also. To
avoid confusion regarding the jurisdiction of courts with admiralty
powers, national statutes lay down what are known as 'maritime claims'.
The admiralty jurisdiction is restricted to these enlisted claims. 'Maritime
Liens' are those special maritime claims which get preferential treatment
over other claims and are not affected by jurisdictional fetters.3
These claims are enforced against the ship by arresting the ship.
Thus, ship arrest forms the core of an in rem action. There have been
Ship Arrest Conventions, 1952 and 1999 respectively which laid down
circumstances under which a ship can be arrested and the procedural
guidelines to be followed.

3. See infra "Maritime Liens".

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 2007] NOTES AND COMMENTS 83

In rem actions and in personam

These are two defining character

need to be addressed first. In p
legal phenomenon. But the exig
always allow the luxury of being
be made liable. Therefore, in rem
courts to counter this problem. In
res, which is normally the shi
board, bunker and cargo.
The modern in rem claim form
directed against the ship alleged t
doing in cases where it is sought
or in a possessory action agains
ship, whose possession is claime
procedural, the primary purpos
of the defendant. Other secondar
for a claim; and (b) to execute
once the ship is arrested, notic
interested. Anyone who furnishes
to the jurisdiction of the court. O
the action gets converted into an
attendance or furnishes security t
apportioned among claimants.
In civil law countries there is no distinction between in rem actions
and in personam actions. Continental law considers all actions to be in
personam. Here, the ship is treated merely as a part of the property of
the defendant, among others. Maritime law is a part of the general law
in civil law countries and is dealt with by ordinary courts and tribunals.
Similarly, the presence of any property belonging to the defendant
within the territorial jurisdiction confers jurisdiction on the French
court.6 In common law countries, admiralty actions, whether in rem or
in personam , are confined to well-defined maritime claims or maritime
liens and directed against the res (ship, cargo and freight) which are
the subject matter of the dispute. The power to arrest ships is extended
to the arrest of sister-ships also, which are ships in the same beneficial
ownership as the res.1 In civil law countries admiralty actions are
extended to non-maritime claims as well.

4. Christopher Hill, Maritime Law , 89 (2003).

5. See, Elizabeth , supra note 2.
6. See the observation of Lord Diplock in The Jade (1976) 1 All ER 920, 923.
7. Elizabeth, supra note 2 at 463.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
84 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

Admiralty jurisdiction in India and the power to arres

The admiralty jurisdiction exercised by the high cou

before Elizabeth , was governed by the English Admiralty
1861 applied by (English) Colonial Courts of Admiralty
adopted by Colonial Courts of Admiralty (India) Act, 1 89 1
1891).
In India, carriage of goods by sea is governed by the Indian Bills of
Lading Act, 1856; the Indian Carriage of Goods by Sea Act, 1925; the
Merchant Shipping Act, 1958; and general statutes, such as the Marine
Insurance Act, 1963; the Contract Act, 1872; the Evidence Act, 1872;
the Indian Penal Code, 1860; the Transfer of Property Act, 1882; the
Code of Civil Procedure, 1908; the Criminal Procedure Code, 1973; the
Companies Act, 1956 etc as well as the general principles of law such
as the law of tort, public and private international law etc.
There are provisions in various statutes which allow ship arrest.
But all these laws are procedural in nature. The most prominent among
these is section 443 of the Merchant Shipping Act, 1958. This provision
gives power to the high court to arrest a ship for damages caused by
it. A. high court, as defined in section 3(15) of the Act, is one within
the limits of whose appellate jurisdiction -
(a) the port of registry of the vessel is situate; or
( b ) the vessel is for the time being present; or
(c) the cause of action, wholly or in part arises.
The vital significance and the distinguishing feature of an admiralty
action in rem is that this jurisdiction can be assumed by the coastal
authorities in respect of any maritime claim by the arrest of a ship
irrespective of nationality of the ship or that of its owners or the place
where the cause of action wholly or in part arose.8

The power to arrest ships- ' Elizabeth 9 examined

The evolution and development of admiralty jurisdiction in India

can be traced to the decision of the Supreme Court in M. V.Elizabeth v.
Harwan Investment and Trading.9 The ship, MV Elizabeth belonged to
Greek owners and was registered abroad. While carrying goods of the
claimants, it violated orders of the claimants not to take the cargo out
of India and deliver them abroad. The claimants got the ship arrested at
the Vishakhapatnam Port in Andhra Pradesh by the High Court of
Andhra Pradesh, on its return journey. The jurisdiction of the AP High

8. Id. at 459, para 44.

9. Supra note 2.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 2007] NOTES AND COMMENTS 85

Court to arrest the ship was no

court, according to Thommen J
Court was empowered to do so.
The primary issues to be decide
the admiralty jurisdiction could
'out of the country' and (b) whe
admiralty jurisdiction over a for
Admiralty Courts Act, 1861, whi
restricted admiralty jurisdiction t
into a country.
A number of earlier decisions by
admiralty was a jurisdiction distin
the high court had and that the
those given by the Admiralty Cou
Firstly, the court interpreting s
came to the conclusion that the
competent Indian courts of inhere
as colonial courts of admiralty and
the English High Court in the exer
was no incorporation of any Englis
conferment of powers." The admir
Court has expanded over the yea
was also aided by the repeal of the
court said that "it would have been reasonable and rational to attribute
to the Indian High Courts a corresponding growth and expansion of
admiralty jurisdiction during the pre-independence era."12
This meant that that all the powers relating to admiralty enjoyed by
the High Court of England before 1 947 would automatically be bestowed
on the admiralty courts of India. The expansion of admiralty powers of
the English High Court was done through the Administration of Justice
Act, 1920; Supreme Court of Judicature (Consolidation) Act, 1925 and
the Administration of Justice Act, 1928. These enactments had removed
the distinction between inward bound and outward-bound cargo, which
was the contentious issue in this case.
After coming to this conclusion, Thommen J delineated the post-
1947 development of admiralty jurisdiction in England and at the
international level to buttress his earlier arguments. It is this discussion

10. See, Kamalakar Madhav Bhagat v. Scindia Steam navigation Co., AIR 1961
Bom 186; Mrs. Sahida Ismail v. Petko. L. Salvejkov, A!R 1973 Bom 18; Jayaswal
Shipping Co. v. S.S. Leeleavati, AIR 1954 Cal 415; Rungta Sons Pvt Ltd v. S. S.
'Edison Mariner', (196-62) 66 CWN 1083; Smt. Reena Padhi v. Jagdhir, AIR 1982
Orissa 57.
1 1 . Supra note 2 at 45 1 .
12. Id. at 452 para 26.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
86 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

that created a legal quagmire, which has to date not bee

totally. Firstly, he says that the high courts of India are s
of record with inherent and plenary powers, which are con
granted. Unless expressly or impliedly barred, and subject t
or discretionary jurisdiction of the Supreme Court, the
have unlimited jurisdiction, including the jurisdiction to d
own powers. In the case of Raja Soap Factory v. S. P. Sh
Supreme Court had refused to confer on a high court a
which was not specifically vested in it by a statute. In E
court circumvented this argument by saying that Andhra
being a successor to the Madras High Court was "vested
appellate and original jurisdiction, including the admiralty
to order the arrest and detention of the ship."14
It was also ruled that the high court has unrestricted
determine the extent of its powers. Thommen J had wo
from the fragmented statutes of the British legislatur
jurisdiction on the courts in England. In this exercise he ha
the jurisdictional ancestry of British admiralty court, supp
legislative history of various statutes that conferred admiral
to the Indian high courts. The inherent original civil jurisdi
by the three-chartered high courts was granted by the Let
Acts. These jurisdictions have also been saved by articl
Constitution.15 All high courts do not have similar pow
Elizabeth decision imply, that all high courts have admiralty
Or is it restricted to the chartered high courts and their s
it restricted only to the coastal high courts or can all high
the jurisdiction? A barrage of questions for the legal mind
Further, he points out how the UK admiralty law has ev
up to the Supreme Court of Judicature Act of 1981. T
down specifically what are the 'maritime claims' that fa
jurisdiction of an admiralty court.16 In India, no statu
maritime claims explicitly. So, the courts interpret secti
Merchant Shipping Act (MSA) to the widest possible ext
443 lays down the procedural guidelines for a high court w
either of the three criteria laid down in section 3(15) of
detain a foreign ship, which has done 'damage' to proper
to the Indian government or a citizen. Here it was said t
'damage', in the absence of any specific classification i

13. AIR 1965 SC 1449.

14. Per Thommen J supra note 2 at 466.
15. See, P.M. Bakshi, Constitution of India 170 (6th Ed). Also see, M V Al
Quamar Tsavliris Salvage (International) Ltd, AIR 2000 SC 2826
l'ó. Supreme Court of Judicature Act, 1981 s. 20 (2).

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
2007] NOTES AND COMMENTS 87

statute regarding 'maritime claims

of the Carriage of Goods by Sea
should be interpreted broadly to
have been specified in the Ship A
adopted by the U.K. Act of 1981.
interpretation was that the prov
'automatically incorporated' into In
principles of general maritime la
even though India was not a sign
interpreted this to mean that any
of section 3(15) of MSA would h
even inland high courts would ha

Power of high courts to arrest s

It is admitted that the high cour

specified in section 3(15) of MSA,
under section 443 of the same A
extend to even inland high courts,
arisen within their territorial juri
does not necessarily give inland hi
distinction made by Thommen J i
Once a foreign ship is arrested in
a High Court, in exercise of adm
by a statute or inherent in it as
any maritime claim against its
action may have arisen, and whether or not the ship is
subsequently released by the owner, furnishing security,
proceedings must continue against the owner as in any other
suit. The arrest of the vessel while in Indian waters by an
order of the high court concerned , as defined under the Merchant
Shipping Act, 1958, section 3(15) attracts jurisdiction of the
competent court to proceed with the trial, as in the case of any
other suit, as an action against the owner, and any decree
obtained by the plaintiff is executable against any proper owner
available within the jurisdiction.
This passage gives an impression that the admiralty jurisdiction
enjoyed by certain high courts is separate and wider than the power to
detain ships, as enjoyed by the high courts under the Merchant Shipping
Act. Even though all the high courts have the jurisdiction to arrest
ships which have caused 'damage', the matter being essentially of
admiralty nature, has to be tried by a competent court, which is the

17. Supra note 2 at 477, para 92 [Emphasis added].

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
88 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

high court with admiralty jurisdiction. But this brings us

all-important question - which all high courts in India have
jurisdiction?

Laudable effort

Elizabeth , by no stretch of imagination is a perfect judgment

has been both widely criticized as well as lauded. Admittedly there ar
faults in reasoning, but this does not take away Elizabeth 's position a
a judgment that forged the way ahead.
The Elizabeth dictum tells clearly that statutes do not comprise th
whole gamut of admiralty law. Admiralty law is made up of principle
developed in admiralty courts in the UK and later by common l
courts. This was subsequently unified and codified by various
international conventions. Merely because India is not a party to m
of the major international conventions regarding ship arrest and marit
claims, it does not mean that these conventions are not applicable
Indian law. They are part of general maritime law achieving the statu
of customary international law.18
Perhaps the greatest contribution of Elizabeth would be that
urged the legislators to amend their laws and bring them in conform
with international conventions. By giving these conventions the statu
of customary international law, this judgment forced the executive a
the legislature to take notice. Such an interpretation could lead to dir
consequences if it is used by a judge who is callous towards the po
constraints of the executive. This accentuated the need for a national
legislation on admiralty.

Admiralty jurisdiction after Elizabeth

Elizabeth declared that our courts have admiralty jurisdiction to the

extent that they could arrest even foreign ships. But this decision has
thrown up more questions than it has resolved and these need to be
addressed both legislatively and otherwise. Considering the call from
the international trading community for procedural minimalism and
expediency, it was imperative that these questions be answered
immediately. Some issues that cropped up may be discussed.
Maritime claims and maritime liens

Though it was clear that admiralty was a jurisdiction that knew n

boundaries, Thommen J was aware that it had to receive some statut
recognition. After accepting the contention that all high courts c
arrest ships in certain circumstances, it was necessary to identify w

18. Id. at 476.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
2007] NOTES AND COMMENTS 89

were the claims in which admir

jurisdiction as far as adjudication i
to as 'maritime claims'. Section
1981(UK), listed out certain claim
did not specify anything to this ex
Ship Arrest Convention, 1952 als
law, however, is deficient in this.
claims laid down in the English law
virtue of the fact that they are pa
automatically be inducted into our
of specific legislation to the effec
Maritime liens are certain privile
other claims. They attach with the
alive and travels with the res w
arrest these ships despite change i
any jurisdictional constraints. But
observed that the court would not
parties had some nexus with India.
The apex court in the recent deci
Won Fu 21 tried classifying marit
heads:

a. damage done by ship

b. salvage
c. seaman's and master's wages
d. master's disbursement

e. bottomry.
But the issue involved in this case was whether the breach of a
contract in connection with the ship would invite an action in rem . The
court, while refusing to consider it as maritime claim capable of
attracting a maritime lien, opined that in case of ordinary maritime
claims, as opposed to those attracting maritime liens, the only remedy
available is an action in personam. It is submitted that this position is
contrary to the precedents laid down in foreign courts as well as in
international conventions. The 1999 Ship Arrest Convention is one of
the least cited maritime conventions in Indian admiralty decisions.22

19. See, text of footnote 35.

20. World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd., &
Ors. JT 1998 (3) SC 468.
21. (2003) 1 SCC 205.
22. It is not very surprising, as India has not signed most of the international
shipping conventions.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
90 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

But this convention clearly says that maritime claims can b

by way of an in rem action and does not seek to make any
It may be noted that in the very recent decision of Kono
the court has even gone to the extent of saying that the no
of wage, which gives the seamen a maritime lien over the r
violation of article 21 of the Constitution.

The need for change in jurisdiction emphasized

It is pertinent here to refer to the Parveen Singh Committee, which

was constituted way back in 1987 to comment on the pressing issue of
ambiguity regarding admiralty jurisdiction of the Indian high courts.
This committee, which was well represented by various stakeholders in
the shipping industry reemphasized the need to define the jurisdiction
and also to expand it. It also pointed out the need to spell out the
spheres of operation of the power of the admiralty courts to initiate in
rem actions and in personam actions in order to avoid conflict of
jurisdictions. The committee, however, did not subscribe to the view
that all high courts in India should have admiralty jurisdiction. It, in
fact, suggested that the admiralty jurisdiction should be severed from
the high courts and be conferred on separate admiralty courts set up
for the purpose. It felt that these courts would be more technically
equipped to handle shipping and admiralty matters that require more
specialized expertise. This was to have one common national appellate
body, the order of which was only to be appealable to the Supreme
Court.25
The law ministry was not completely satisfied with the
recommendations of this committee. It asked the Law Commission to
prepare another report looking into two specific issues which cropped
up from the previous report. The agenda for the Law Commission was
specific. They were requested to comment on:
1 . The nature and scope of admiralty jurisdiction
2. Admiralty courts in India
The report of the Law Commission (151st Report) came immediately
after the Elizabeth decision and hence the commission had to keep in
mind the mandate of the Supreme Court also. Once it was said by the
Supreme Court that admiralty jurisdiction is part of the inherent unlimited
civil jurisdiction of the high courts, it was difficult to set up separate

23. Art. 2(2) and art. 3 of the International Convention on the Arrest of Ships,
1999.
24. O. Konavalov v. Commisioner of Customs, Appeal (civil) 3877-3878 of
200 1 (SCy (judgment dated 23/03/2006).
25. See, B.C Mitra, The Law of Merchant Shipping in India 32(2000).

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 2007] NOTES AND COMMENTS 91

admiralty courts. Since article 323

not talk about admiralty jurisdic
separate tribunals under the existi
The Law Commission presente
report, which classified 'mariti
cases in which the courts could
were clearly segregated. In order t
not lead to commercial hardships,
discretion to choose between both the actions.

Sister-ship arrest

Another related issue is the arrest of 'sister-ships'. The elusiveness

of ships necessitates that the claimant should have a remedy against
some alternate res in which the defendant has an interest. Since our
legal system is not based on the civil law system, it is not possible to
have an action against any kind of property the defendant may possess.
The power to have an action in rem is thereby restricted to another
'ship' in which the defendant has a 'beneficial ownership'.
In the case of State Trading Corporation v. Govt, of the Peoples
Republic of Bangladesh ,26 the plaintiffs contention was that a particular
ship, MV Pranburi should be arrested as sister-ship to another ship,
MV Yanmit. The first issue was whether the Delhi High Court at all
had the jurisdiction to arrest the ship. The court came to the conclusion
that it could do so under section 443 of the MSA, 1958, provided one
of the three conditions stipulated in section 3(15) of the same Act were
met. The court, not being sure that the cause of action had arisen
within its territorial jurisdiction and also on the plaintiffs failure to
prove that MV Pranburi was indeed the sister-ship, did not arrest the
ship.
But, subsequently, referring extensively to passages from the
Elizabeth decision, the high court, almost abruptly arrived at the
conclusion that the said decision makes it absolutely clear that all the
high courts will have power under section 443 read with section 3(15)
of the Act to arrest and detain offending vessels for causing damage
provided the conditions laid down therein were fulfilled.27
The contentions raised by the defendant, had they been considered
by the court, would have given illuminating insights. The first contention
was that India had not ratified the 1952 Brussels Convention, which
legitimizes sister-ship arrest, and secondly, neither Elizabeth nor the
MSA talked of sister-ship arrest. Here, the court did not bother to go

26. AIR 1997 Del 31.

27. Id. at 43, para 24.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
92 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

into these contentions as it had already come to the conclus

could not arrest MV Pranburi since it was not a sister-
view, it is submitted, left a doubt that inland high cour
arrest sister-ships. It was imperative that this question
been answered by the Delhi High Court. It is clear that the
does not grant any power to arrest a sister-ship. Then the onl
that allows for such an arrest is admiralty. This would have
back to one of the questions thrown up by Elizabeth , i.
high courts have the admiralty jurisdiction let alone the po
sister-ships.

Action in rem and the Admiralty Bill, 2005

The admiralty jurisdiction possessed by the high courts i

been the most complicated issue so far as admiralty law
concerned. It took almost 13 years since Elizabeth for a concrete
legislative activity regarding admiralty law to take place in our country.
The Admiralty Bill, 2005 (tabled before both the Houses of Parliament
in 2006) 29 has tried to solve the issues discussed above. The bill has
been primarily modeled on the Draft Act prepared by the Law
Commission in 1994, although it also takes into consideration various
international developments which have taken place after the Law
Commission Report was published. This bill is to be studied in the light
of the Report of the Rajya Sabha Standing Committee on the same.30

Admiralty jurisdiction of high courts

The first and foremost thing done by the bill is that it repeals all
those primitive statutes which have, over the years hampered the growth
of admiralty law in India.31
The admiralty jurisdiction possessed by the high courts of India
has been the most complicated issue so far as admiralty law in India is

28. Ibid.
29. Hereinafter the bill.
30. Department-Related Parliamentary Standing Committee on Transport, Tourism
& Culture Ninety-Ninth Report on The Admiralty Bill, 2005 (Presented to the
Rajya Sabha On 21st March, 2006) (Laid on the Table of the Lok Sabha on 21st
March, 2006) available at http://rajyasabha.nic.in (hereinafter Standing Committee
Report).
31. The following statutes are proposed to be repealed:
(i) The Admiralty Offences (Colonial) Act, 1849;
(ii) The Admiralty Jurisdiction (India) Act, 1860;
(iii) The Admiralty Court Act 1861;
(iv) The Colonial Courts of Admiralty Act, 1890;
(v) The Colonial Courts of Admiralty (India) Act, 1891; and
(vi) Patent relating to High Courts of Bombay, Calcutta and Madras.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 2007] NOTES AND COMMENTS 93

concerned. Under the bill, the ter

On the other hand, high court h
under the MSA, 1958. Clause-3(1
sub-section (2), the civil jurisdicti
Act shall vest in the High Cour
accordance with the provisions co
assumption is that, ordinarily, if
ports, as per this clause, the high
port can entertain an admiralty
done by a high court under wh
registry of the ship is situated or
The standing committee has con
with 'stakeholders', has asked f
introductory note to the bill mak
all high courts admiralty jurisdict
already said that it is the unlimite
the high court. What this provisio
the power within the MSA defin
of Shipping clarified that the Me
definition of high court in relation t
definition of the high court, it is
in high courts with extension to
of the bill. The admiralty jurisdict
where a court is located but extends to the entire coast of India and
inland waters as parties to maritime disputes are dispersed all ove
India.33
The standing committee does not subscribe to this point of view. It
reiterates the view of the stakeholders that the designated high courts
should be conferred pan-Indian admiralty jurisdiction which would
facilitate the courts to take out writ in rem and warrant of arrest which
can be served or executed anywhere in India.. In a case, where
security/bail has been granted to a ship and the security or bail proves
inadequate after the vessel has sailed, in the absence of pan-Indian
admiralty jurisdiction, the claimant would follow the vessel and filing
an admiralty suit in another high court. This process will lead to
multiplicity of cases. Therefore, the committee felt that there is a
compelling need for certain designated high courts namely, Mumbai,
Ahmedabad, Cochin, Hyderabad, Chennai, Calcutta, Bangalore and
Bhubaneshwar to be conferred with an all-India admiralty jurisdiction.34

32. The Admiralty Bill, 2005, clause 2(C ).

33. Standing Committee Report, para 11.7.2.
34. Id., para 11.7.4.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
94 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

But again, during the course of discussion on clause 3, w

with jurisdiction of high courts, there is further refe
jurisdiction of all the high courts of India to entertain matters o
nature. The suggestion of the standing committee if ac
provide us a scenario which looks like this:
(a) All the high courts falling within the definition
3(15) MSA will have admiralty jurisdiction if the cond
the same section are met.

(b) Apart from this, the coastal states will have a pan-Indian
jurisdiction to entertain admiralty claims irrespective of whether
they satisfy the above criteria or not.

Maritime claims and in rem actions

The bill borrows the definition of maritime claims from the Sup
Court Act of 1981 (UK), with some modifications.35 The bill also cl

35. See Supreme Court Act of 1981(UK), s. 20(2).

Admirality Bill 2005, clause 5(2) of the bill states:
(2) For the purposes of clause (a) of sub-section (1), a court may exercise
jurisdiction to hear and determine any of the following questions or claims, namely: -
(a) any claim to the possession or ownership of a ship or to the ownership of
any share therein including a claim concerning employment or earnings relating to
that ship;
( b ) any question arising between the co-owners of a ship as to its possession,
employment or earnings;
( c ) any claim in respect of a registered mortgage or of charge on a ship or any
share therein;
( d) any claim for the forfeiture or condemnation of a ship or of goods which are
being or have been carried, or have been attempted to be carried, in a ship, or for the
restoration of a ship or any such goods after seizure, or for droits of admiralty;
( e ) any claim for damage caused to a ship during her stay, business or voyage;
(J) any claim for damage caused by a ship including civil liability for damage
caused by oil pollution covered under the Merchant Shipping Act, 1958;
(g) any claim for loss of life or personal injury sustained in consequence of any
defect in a ship or in her apparel or equipment or in its operation, or in consequence
of the wrongful act, neglect or default of -
(i') the owners, charterers or persons in possession or control of a
ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful act,
neglect or default the owner, charterer or person in possession or control of
a ship is responsible, being an act,, neglect or default, in the navigation or
management of the ship, in the loading, carriage or discharge of goods on, in
or from the ship, or in the embarkation, carriage or disembarkation of
persons on, in or from the ship;
(h) any claim for loss of, or damage to, goods carried on board a ship;

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 2007] NOTES AND COMMENTS 95

lays down claims which will give

important for us is the distin
attract in rem actions and those
The maritime liens by their ver
not fieed much clarification. Clau
on the power of the courts to ent
can be summarized thus:

1 . There cannot be an action in rem against Indian ships unless 6

days clear notice is given to the owner of the vessel and he
has failed to furnish security for the vessel.
2. The ship has to be within the territorial waters of India at the
time of institution of in rem proceedings and more specifically,
it has to be as such within the jurisdiction of the high court.37
3. The claim, if it arises out of a breach of contract shall only be
initiated through a proceeding in personam and not through a

(0 any claim arising out of any agreement relating to the carriage of goods in a
ship or to the use or hire of a ship;
(/) any claim in the nature of salvage for services rendered in saving life from a
ship or in preserving the ship, cargo, equipment, apparel or of any other property of
the ship or wreck;
(k) any claim in the nature of towage in respect of a ship;
(/) any claim in the nature of pilotage in respect of a ship;
(m) any claim in respect of goods, materials, bunker or other necessaries supplied
to a ship or any services rendered to a ship for her operation or maintenance.
Explanation. - For the purposes of this clause, the expression "services" with
reference to a claim shall include a claim made towards insurance for such services;
(n) any claim in respect of the construction, repair or equipment of a ship or in
respect of any port dues, fee and other charges to the Port Authorities under the
Indian Ports Act, 1908, as amended from time to time or rates and other charges due
under the Major Port Trusts Act, 1963;
(o) notwithstanding anything contained in the provisions of sections 150 and 151
of the Merchant Shipping Act, 1958, any claim by a master or member of the crew
of a ship for wages including any sum allotted out of wages or adjudged to be due
which may be recoverable as wages;
( p ) any claim by a master, shipper, charterer or agent in respect of disbursements
made on account of a ship;
(q) any claim arising out of an act which is or is claimed to be in the nature of
general average.
Explanation. - For the purposes of this clause, "general average" means any
extraordinary sacrifice or expenditure voluntarily and reasonably made or incurred in
time of peril for the purpose of preserving the ship property imperilled in the
common adventure;
(r) any claim arising out of bottomry.
36. Bill id., clause 13.
37. Bill id., clause 6(2).

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
96 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

proceeding in rem [clause 6 (3) of the bill]. This prov

been specifically added to provide for the decisio
Supreme Court in M.V.Won Fu case. The English
not put a similar constraint. The standing comm
suggested that this sub-clause be moved to clause
regarding jurisdiction in personam) to avoid further c
The standing committee was of the opinion that this
unnecessary fetters on the right of the claimants to institu
action, which is a vital part of admiralty jurisdiction. But th
only suggests that clause 6(3) be suitably amended, whic
should mean that a 'may' presumption be added. This w
discretion to the courts, as is given under clause 7, a part o
sub-clause is to be made.
It is interesting to note that there is not much discussion in th
report on clause 6(2) of the bill, which could have a far reachin
impact. As we have seen, this clause insists that the ship be presen
within the territorial jurisdiction of the court for it to be arrested. Thi
in turn means that inland high courts can only entertain in personam
actions. This provision is very crucial and seems to have been overlooke
by the committee. If the abovementioned inference is true, then th
admiralty jurisdiction that has been granted to all high courts in genera
is only partial. Only the coastal high courts have a 'complete admiralty
jurisdiction'.
The mode of exercising jurisdiction is prescribed under clause 7. 38
The court has the discretion to choose between an action in rem or an
action in personam . Clause 7(1) gives the court the discretion of having
an in personam action if the claim falls within those listed in clauses (a)
to (c) of clause 5(2) or if the claim gives rise to a maritime lien. But
for those claims falling within clause (e) to (r), the court is given th
discretionary power to initiate an in rem action even in case of non
maritime liens, if the person who is liable in personam is the owner or
charterer of the ship at the time when the cause of action arose an
also is the beneficial owner or demise charterer of the ship when th
proceedings are initiated.
This would naturally lead to the question whether this means that
an in rem action is not possible with respect to claims which are not
included here. The provision is similar to section 21(4) of the UK Act
Section 21(2) of the UK Act and clause 7(1) of the bill are also similar
In the UK, it is accepted that for other claims which are not include

38. Even though the clause has a title which reads as 'Jurisdiction in personam
the standing committee has advised that it be renamed as 'mode of exercise of
jurisdiction'. See, 16.15 of the Standing Committee Report.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
 2007] NOTES AND COMMENTS 97

within section 21(4), an in rem a

the in personam link requirement.

Maritime liens

Maritime liens are an essential component of admiralty jurisdiction.

Maritime liens as has been observed are privileged claims which survive
the ownership of a ship and are unfettered by restrictions on in rem
actions. These attach to the res irrespective of the place where the
cause of action arose.
A large tanker may, by negligent navigation, cause damage to
beaches or other ships. It might then be careful enough to keep out of
ports, which could act as 'convenient fora' for its arrest. The ship
might also have changed hands, thereby making matters worse. But
maritime liens, once they attach, do not allow such defenses to the
defendant. 'Forum shopping' is a phrase commonly used and
inextricably linked to action in rem and the availability of maritime
liens. As far as maritime liens are concerned every port is potentially a
legal forum in admiralty. The system, inconvenient though it may be to
some, has overall lent itself to the preservation of justice.40
The bill lays down those claims which will give rise to maritime
liens.41 It can be seen that the bill has added a clause which makes
claims for 'general average' also to be maritime lien. Typically, such
claims are few in number, as they tend to place the holder in a favoured
position in law.42 This is why such liens are restricted to certain
limited categories of claims. As per the provisions of clause 13 of the
bill, maritime liens have a wider scope as it includes claims for general
average and port and canal dues. These added claims are not considered

39. Hill, supra note 4 at 103.

40. Id. at 89.
41. Clause 13 (1) of the bill provides:
Maritime lien shall attach to a ship or its property in respect of the following,
namely:-
(a) claim for salvage of life, ship or its property;
(b) wages and other sums due to the master or members of crew of the ship in
respect of their employment on the ship;
(c) claim for loss of life or personal injury having a direct connection with the
operation of the ship;
(d) claim for contribution to general average
(e) port, canal and other waterway dues and pilotage dues;
(f) claim based on tort arising out of physical loss or damage caused by the
operation of the ship other than the loss or damage to cargo, containers and
passengers' effects carried on the ship, the date of accrual of such maritime lien
being the date on which the operations giving rise to the said claim were performed
42. Para 22.2.6 of Standing Committee Report

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
98 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

as maritime liens either by the International Conventio

Liens and Mortgages, 1993 or by statutes of other com
countries. Hence, the committee is of the view that th
struck off.
Apart from this, the bill, just like the international conventions, has
provided for a priority of claims in which maritime liens receive the
topmost priority. But the standing committee is opposed to any such
classification and it believes that the discretion should be left to the
courts. It is submitted that this is contrary to international practic
Priority of claims helps in securing maritime liens easily. If uniformit
in international practice regarding maritime liens is required then the
priority clause should be accepted.

Sister-ship arrest

Sister-ship arrest is provided for in clause 7(2). A sister-ship is one

which is in the beneficial ownership of the person who would hav
been liable in personam at the time when the cause of action arose (the
relevant person). The major difference between the ship which is
instrument of damage and its sister-ship is that in the latter case only i
the ship is in the beneficial ownership can it be arrested. Merely becaus
the same ship has been demise chartered by the relevant person doe
not make the ship liable to be arrested as sister-ship.

Some observations

( 1 ) It is quite early to make recommendations regarding the substa

provisions of a statute (and that too something which still has
received legislative approval). We have borrowed from the
Act to a large extent. But the provisions have been interpr
considerably by the UK courts. These decisions will defini
have a bearing on the courts of India. This does not mean
our courts should blindly follow these decisions without conside
commercial realities of an emerging trading nation like ours.
(2) Regarding admiralty jurisdiction possessed by high courts,
has always been a debate. In a country like England this might
be a big issue owing to the size of the country. Comme
expediency demands that ships should not be arrested for a
time and never on flimsy grounds. Because of this reason i
imperative that only the coastal high courts have the powe
arrest a ship. The admiralty matter may be heard in personam
any high court but the power to arrest ships should be lim
This is primarily because the shipping community and its vari
stakeholders have their base in the coastal states. Even fore
shipping companies have their agents largely in the coastal stat

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
2007] NOTES AND COMMENTS 99

The claimants in the inland high

who regularly export goods. T
the coastal states. Hence it is not difficult for them to initiate an
in rem action in the coastal high courts.

(3) Maritime liens are another important issue. It has been observed
that standing committee has tried to curb the number of maritime
liens keeping in tune with the decision of the Supreme Court. But
these are claims in which the interests of the various stakeholders
have to be considered. But the Ship Arrest Convention, 1999
leaves it to the member states to determine what they wish to
consider as a maritime lien.43 Maritime liens are one aspect of
admiralty law where the call for uniformity from the international
community and the domestic needs of stakeholders needs to be
kept in mind.
(4) Regarding sister-ship arrest, the 'beneficial ownership' criterion
is very much of common law origin. It is a wider concept when
compared to 'ownership' as can be seen in the 1999 Convention.
This is intended to give the courts wider discretionary powers.
Now, the court can pierce the corporate veil to determine whether
the sister-ship is in the beneficial ownership of the relevant person.
The difficulty in garnering evidence for proving the same has
attracted criticism from authors like Christopher Hill.44
(5) Lastly, the observations of Black J in the famous Halcyon Lines
case45 deserves mention. The general practice in the US admiralty
law was that in cases of collision between ships the general tort
rule that each party should compensate according to his negligence
was applied. The issue before the court was whether this same
rule can be extended to cases of damage caused by ship in non-
collision cases. The US Supreme Court rejected this view. In the
court's opinion this was an issue where the interests of many,
including shippers, carriers, employees etc and could only be
cured through legislation, as only the legislative process is best
equipped to bring about a fair accommodation of the diverse but
related interests of these groups. These people are the stakeholders.
Admiralty law, owing to the fact that it has stakeholders around
the globe, should be statutorily crystallized to a certain extent
after a careful study of these diverse interests. A mere copying of
foreign statutes does not always serve the purpose.46

43. Arrest Convention, 1999, Art. 3(1 )(e).

44. See generally. Hill supra note 4.
45. Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282 (1952).
46. Id. at 287.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
100 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1

Conclusion

It is now accepted the world over that admiralty law is not restricte
within confines of statutory law. It encompasses a wide gamut of laws
and hence must necessarily give space for judicial interpretations. This
is perhaps the primary reason that admiralty courts have traditionally
felt freer than common law courts in exercising their powers.47 Most
modern admiralty statutes give this discretion to the courts and t
Indian bill is no exception. But at the same time issues like priority of
claims, just like distribution of tortious liability in Halcyon Lines case
is not to be left to judicial discretion. This will lead to uncertain
among the international community when searching for a forum.
In rem actions and maritime liens are intrinsic aspects of admiralty
law, which have considerable impact on international trade. Whi
exercising admiralty jurisdiction, the courts are faced with two often
conflicting interests. On the one hand is the interest of the claimant an
on the other hand is the largely utilitarian interest of ensuring t
smooth flow of international commerce. The courts normally try
give a balanced decision not harshly affecting either of the righ
Keeping this harmonization purpose in mind, it goes without saying t
the courts should have considerable discretion to choose between
actions. There would be many a case where an in rem action is wholly
unwarranted. In such a case the court should be in a position to rejec
the application.
This discretion, if wisely used by the high courts - to be very
specific, the coastal high courts - will ensure that legitimate maritime
claims are adequately provided for without hindering the growing
shipping trade in our country. In this backdrop, the Admiralty Bill
2005 requires much more attention and study than it is receiving now.
It should not be allowed to pass silently through legislative corridors.
This bill comes out at a time when the shipping industry in India is
slated for a major boom. Trade at the ports has seen an unprecedented
surge. Foreign shipping lines are planning to invest in India also. Bu
uncertain and pre-historic shipping laws have been a major deterren
for foreign vessels and they try, as far as possible, to avoid out ports.
The scenario is changing and an Admiralty Act would help to bring
lot more certainty and stability to the legal framework. The Parliament
should try to be more sympathetic towards the stakeholders, as the
are the fuel on which this industry really runs. Shipping law
traditionally, is designed to protect the stakeholders, as it is the ris
and interest that they take, that ensures smooth flow of trade. Rigi
legal regimes would dissuade them from coming to Indian ports. At the

47. ibid.

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms
2007] NOTES AND COMMENTS 101

same time, India has more cargo

also stakeholders. The Parliament
earliest, but after a greater deal of

Shyam D. Nan

* LL.M. Scholar, Indian Law Institute,

This content downloaded from

65.0.53.109 on Sat, 29 Oct 2022 07:19:19 UTC
All use subject to https://about.jstor.org/terms