Cmde Abhay Kumar Singh (Retd) is Research Fellow at the Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi. Click here for detailed profile
On September 21, 2016, the Union Cabinet approved the enactment of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill 2016. The Bill repeals five obsolete British statutes on admiralty jurisdiction in civil matters, namely, (a) Admiralty Court Act, 1840 (b) Admiralty Court Act, 1861, (c) Colonial Courts of Admiralty Act, 1890, (d) Colonial Courts of Admiralty (India) Act, 1891, and (e) the provisions of the Letters Patent, 1865, applicable to the admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts.
The process of drafting a suitable legislation to repeal the existing colonial statute was begun by the Director General of Shipping in 1986, and its urgent need was emphasised by the Supreme Court in its landmark judgement in the case of M.V. Elizabeth & others Vs Harwan Investment Trading Pvt. Ltd. JT in 1992. The maritime industry has been highlighting the need to update India's Admiralty Laws so as to be responsive to the needs of the Industry and ensure that maritime disputes are disposed off expeditiously and effectively. This article outlines the arduous journey of this important maritime legislation.
The Admiralty law governs maritime questions and offenses. It is a body of both domestic law governing maritime activities and private international law governing the relationships between private entities that operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, marine salvaging, shipping, sailors, and the transportation of passengers and goods by sea.
Admiralty Courts date to at least the 1360s during the reign of Edward III of England. The Admiralty court’s jurisdiction historically embraced all crimes and offenses involving English ships or crews that were committed at sea or along the English coast outside the borders of any county. Although it originally dealt only with matters of discipline in the English fleet and with cases of piracy and prizes (ships and goods captured at sea), the court progressively acquired some civil jurisdiction over mercantile and shipping disputes. Due to jurisdictional dispute with the civil and the criminal law courts, the Admiralty court progressively concentrated on marine cases involving shipping, collisions, and salvage. The High Court of Admiralty Act 1859 provided the constitutional and jurisdictional clarity on admiralty law and procedures. The Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890 established Admiralty courts in Bombay, Madras and Calcutta. These colonial statutes, among others, have continued to remain in force by reason of Article 372 of the Constitution of India.
A suit against a foreign ship owned by a foreign company not having a place of residence or business in a coastal state is liable to be proceeded against on the admiralty side of the High Court by an “action in rem” in respect of a cause of action alleged to have arisen by reason of a tort or a breach of obligation arising from the carriage of goods from a port in India to a foreign port. In rem jurisdiction ("power about or against 'the thing'") is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes that property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).
After Independence, Parliament did not exercise powers to make laws with respect to the Admiralty courts. As a result, jurisdictions in respect of admiralty matters remained as defined in the Admiralty Act 1861 and restricted to the High Courts of Bombay, Madras and Calcutta. The High Courts of India’s other littoral states, namely, Gujarat, Karnataka, Kerala, Andhra Pradesh and Orissa, do not possess Admiralty jurisdiction, although there have been instances of the High Courts of Gujarat, Andhra Pradesh and Orissa having entertained Admiralty causes apparently on a perfunctory consideration of the various States Reorganisation Acts enacted by Parliament and presumably without the benefit of a full argument. Along with the vexing issue of ambiguity of jurisdiction, existing admiralty statutes required a relook in order to incorporate contemporary maritime practices and the international legal regime.
In 1986, a committee headed by Praveen Singh, the then Director General of Shipping, Mumbai, reviewed the existing maritime laws and admiralty jurisdiction and recommended that a specific admiralty law be enacted. The Committee observed that existing admiralty jurisdiction of courts is by virtue of the Colonial Admiralty Jurisdiction Act, 1891, which vested the jurisdiction only in the High Courts of Bombay, Calcutta and Madras. Whereas the jurisdiction of these courts had, in fact, extended to the whole of British India, after independence this ceased to be the case. The Praveen Singh Committee opined that the present admiralty jurisdiction of courts was outdated and recommended that a comprehensive legislation defining the scope of admiralty jurisdiction be enacted.
In so far as jurisdictional ambiguity of the littoral state is concerned, the Supreme Court in the case of M.V. Elizabeth & others Vs Harwan Investment Trading Pvt. Ltd. JT 1992 decided that the High Courts are superior courts of record with unlimited jurisdiction and inherent and plenary powers to decide on their own jurisdiction for the purpose of redressing grievances according to the principles of justice, equity and good conscience, where the statute is silent and judicial intervention is necessary. In this context, the Supreme Court observed that there is no reason to think that the jurisdiction of the High Courts have stood frozen and atrophied on the date of the Colonial Courts of Admiralty Act, 1890. Accordingly, in view of there being no Indian Statute governing the Courts’ jurisdiction in regard to maritime claims, the Supreme Court made the principles of International Conventions on Maritime Laws, applicable in India as part of India’s common law. At the same time, it also directed the early enactment of a suitable legislative measure.
Based on the Supreme Court’s directives, Admiralty jurisdiction was examined by the Law Commission of India in 1992. In its 151st report, the Law Commission pointed out that the admiralty jurisdiction, despite the peculiarities of its origin and growth, is a part of the totality of jurisdiction vested in the High Court as a superior court of record and it is not a distinct and separate jurisdiction. The Commission felt that it is not necessary to limit the jurisdiction only to High Courts whose territories have a coastal belt as was recommended earlier by the Praveen Singh Committee. The Commission, therefore, recommended that the admiralty jurisdiction must be conferred upon all High Courts as part of their original jurisdiction, with a provision empowering the extension of this jurisdiction to other Principal civil Courts in case a necessity should arise in future. The commission submitted a draft bill for enactment by the legislative.
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. 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. Its salient features are as follows:-
The Bill confers admiralty jurisdiction on High Courts located in all coastal states and this jurisdiction extends up to the territorial waters.
The jurisdiction is extendable, by a Central Government notification, up to the exclusive economic zone or any other maritime zone of India or islands constituting part of the territory of India.
It applies to every vessel irrespective of place of residence or domicile of owner.
Inland vessels and vessels under construction are excluded from its application, although the Central Government is empowered to make it applicable to these vessels by a notification if necessary.
It does not apply to warships and naval auxiliary vessels used for non-commercial purposes.
The jurisdiction is for adjudicating on a set of maritime claims listed in the Bill.
In order to ensure security against a maritime claim, a vessel can be arrested in certain circumstances.
The liability in respect of selected maritime claims on a vessel passes on to its new owners by way of maritime lien subject to a stipulated time limit.
In respect of aspects on which provisions are not laid down in the Bill, the Civil Procedure Code, 1908 is applicable.
The Government of India has given an impetus for enhancing mercantile trade through its focus on accelerated development of the maritime infrastructure. Along with infrastructure, a holistic review of the enabling legal framework for mercantile trade and maritime practices is also essential. Legislative processes need to be critically reviewed to avoid inordinate delay in the enactment of statutes. The Admiralty Bill 2016 has been in the making for nearly 30 years. This long awaited Admiralty Legislation will finally become an act during the upcoming winter session of Parliament.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.
The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill 2016 – The Long Journey of an Important Maritime Legislation
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On September 21, 2016, the Union Cabinet approved the enactment of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill 2016. The Bill repeals five obsolete British statutes on admiralty jurisdiction in civil matters, namely, (a) Admiralty Court Act, 1840 (b) Admiralty Court Act, 1861, (c) Colonial Courts of Admiralty Act, 1890, (d) Colonial Courts of Admiralty (India) Act, 1891, and (e) the provisions of the Letters Patent, 1865, applicable to the admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts.
The process of drafting a suitable legislation to repeal the existing colonial statute was begun by the Director General of Shipping in 1986, and its urgent need was emphasised by the Supreme Court in its landmark judgement in the case of M.V. Elizabeth & others Vs Harwan Investment Trading Pvt. Ltd. JT in 1992. The maritime industry has been highlighting the need to update India's Admiralty Laws so as to be responsive to the needs of the Industry and ensure that maritime disputes are disposed off expeditiously and effectively. This article outlines the arduous journey of this important maritime legislation.
The Admiralty law governs maritime questions and offenses. It is a body of both domestic law governing maritime activities and private international law governing the relationships between private entities that operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, marine salvaging, shipping, sailors, and the transportation of passengers and goods by sea.
Admiralty Courts date to at least the 1360s during the reign of Edward III of England. The Admiralty court’s jurisdiction historically embraced all crimes and offenses involving English ships or crews that were committed at sea or along the English coast outside the borders of any county. Although it originally dealt only with matters of discipline in the English fleet and with cases of piracy and prizes (ships and goods captured at sea), the court progressively acquired some civil jurisdiction over mercantile and shipping disputes. Due to jurisdictional dispute with the civil and the criminal law courts, the Admiralty court progressively concentrated on marine cases involving shipping, collisions, and salvage. The High Court of Admiralty Act 1859 provided the constitutional and jurisdictional clarity on admiralty law and procedures. The Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890 established Admiralty courts in Bombay, Madras and Calcutta. These colonial statutes, among others, have continued to remain in force by reason of Article 372 of the Constitution of India.
A suit against a foreign ship owned by a foreign company not having a place of residence or business in a coastal state is liable to be proceeded against on the admiralty side of the High Court by an “action in rem” in respect of a cause of action alleged to have arisen by reason of a tort or a breach of obligation arising from the carriage of goods from a port in India to a foreign port. In rem jurisdiction ("power about or against 'the thing'") is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes that property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).
After Independence, Parliament did not exercise powers to make laws with respect to the Admiralty courts. As a result, jurisdictions in respect of admiralty matters remained as defined in the Admiralty Act 1861 and restricted to the High Courts of Bombay, Madras and Calcutta. The High Courts of India’s other littoral states, namely, Gujarat, Karnataka, Kerala, Andhra Pradesh and Orissa, do not possess Admiralty jurisdiction, although there have been instances of the High Courts of Gujarat, Andhra Pradesh and Orissa having entertained Admiralty causes apparently on a perfunctory consideration of the various States Reorganisation Acts enacted by Parliament and presumably without the benefit of a full argument. Along with the vexing issue of ambiguity of jurisdiction, existing admiralty statutes required a relook in order to incorporate contemporary maritime practices and the international legal regime.
In 1986, a committee headed by Praveen Singh, the then Director General of Shipping, Mumbai, reviewed the existing maritime laws and admiralty jurisdiction and recommended that a specific admiralty law be enacted. The Committee observed that existing admiralty jurisdiction of courts is by virtue of the Colonial Admiralty Jurisdiction Act, 1891, which vested the jurisdiction only in the High Courts of Bombay, Calcutta and Madras. Whereas the jurisdiction of these courts had, in fact, extended to the whole of British India, after independence this ceased to be the case. The Praveen Singh Committee opined that the present admiralty jurisdiction of courts was outdated and recommended that a comprehensive legislation defining the scope of admiralty jurisdiction be enacted.
In so far as jurisdictional ambiguity of the littoral state is concerned, the Supreme Court in the case of M.V. Elizabeth & others Vs Harwan Investment Trading Pvt. Ltd. JT 1992 decided that the High Courts are superior courts of record with unlimited jurisdiction and inherent and plenary powers to decide on their own jurisdiction for the purpose of redressing grievances according to the principles of justice, equity and good conscience, where the statute is silent and judicial intervention is necessary. In this context, the Supreme Court observed that there is no reason to think that the jurisdiction of the High Courts have stood frozen and atrophied on the date of the Colonial Courts of Admiralty Act, 1890. Accordingly, in view of there being no Indian Statute governing the Courts’ jurisdiction in regard to maritime claims, the Supreme Court made the principles of International Conventions on Maritime Laws, applicable in India as part of India’s common law. At the same time, it also directed the early enactment of a suitable legislative measure.
Based on the Supreme Court’s directives, Admiralty jurisdiction was examined by the Law Commission of India in 1992. In its 151st report, the Law Commission pointed out that the admiralty jurisdiction, despite the peculiarities of its origin and growth, is a part of the totality of jurisdiction vested in the High Court as a superior court of record and it is not a distinct and separate jurisdiction. The Commission felt that it is not necessary to limit the jurisdiction only to High Courts whose territories have a coastal belt as was recommended earlier by the Praveen Singh Committee. The Commission, therefore, recommended that the admiralty jurisdiction must be conferred upon all High Courts as part of their original jurisdiction, with a provision empowering the extension of this jurisdiction to other Principal civil Courts in case a necessity should arise in future. The commission submitted a draft bill for enactment by the legislative.
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. 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. Its salient features are as follows:-
The Bill confers admiralty jurisdiction on High Courts located in all coastal states and this jurisdiction extends up to the territorial waters.
The jurisdiction is extendable, by a Central Government notification, up to the exclusive economic zone or any other maritime zone of India or islands constituting part of the territory of India.
It applies to every vessel irrespective of place of residence or domicile of owner.
Inland vessels and vessels under construction are excluded from its application, although the Central Government is empowered to make it applicable to these vessels by a notification if necessary.
It does not apply to warships and naval auxiliary vessels used for non-commercial purposes.
The jurisdiction is for adjudicating on a set of maritime claims listed in the Bill.
In order to ensure security against a maritime claim, a vessel can be arrested in certain circumstances.
The liability in respect of selected maritime claims on a vessel passes on to its new owners by way of maritime lien subject to a stipulated time limit.
In respect of aspects on which provisions are not laid down in the Bill, the Civil Procedure Code, 1908 is applicable.
The Government of India has given an impetus for enhancing mercantile trade through its focus on accelerated development of the maritime infrastructure. Along with infrastructure, a holistic review of the enabling legal framework for mercantile trade and maritime practices is also essential. Legislative processes need to be critically reviewed to avoid inordinate delay in the enactment of statutes. The Admiralty Bill 2016 has been in the making for nearly 30 years. This long awaited Admiralty Legislation will finally become an act during the upcoming winter session of Parliament.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.
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