Authored by Vidhi Tiwari and Suman Setty
1. Genesis of Indian Maritime Law
As already stated, the present Maritime Laws prevailing in India had mainly evolved during the colonial times under the influence of English legislations. Statutes such as Admiralty Offences (Colonial) Act, 1849, the Inland Steam-vessels Act, 1917; the Coasting Vessels Act, 1838; the Indian Registration of Ships Act, 1841; the Indian Registration of Ships Act (1841) Amendment Act, 1850; the Indian Ports Act, 1908[1]; the Indian Merchant Shipping Act, 1923; the Merchant Seamen (Litigation) Act, 1946; the Control of Shipping Act, 1947; the Merchant Shipping Laws (Extension to Acceding States and Amendment) Act, 1949, the Territorial Waters Jurisdiction Act, 1878, etc has helped in developing Admiralty and Maritime structure of the country. Further, in addition to the above mentioned Acts, a series of regulations formulated by British legislators during the period of 1823 and 1940 governs certain parts of Indian Shipping industry, which includes salvage, certification of seafarers, ship-owner’s liability, safety and line conventions and others.
In order to determine about disputes, the admiralty jurisdiction of Indian courts began with Letter Patent, 1862.[2] The Colonial Courts of Admiralty (India) Act, 1891 confirmed the required jurisdiction for trial and adjudication of Maritime questions in India. High Courts at Madras, Bombay and Calcutta were vested with the required jurisdiction to decide the matter.[3] Thus in this way through application of Colonial Courts of Admiralty Act, 1890, allied provision of Admiralty Court Act, 1840 and Admiralty Court Act 1861 were also made used for applied for deciding cases in Indian British Courts. The above foreign provisions were made applicable for the sole reason that Indian courts were under rule of British powers.[4]
Even during post independence period in India, jurisdiction of Admiralty Courts of India was still with the Colonial powers however through the case of SCI v. M.V.Elisabeth[5] , it was declared that High Courts of India holds a superior status than any other Courts or laws for deciding matters within India. It was specifically observed that High Courts has unlimited jurisdiction with inherent and plenary powers to decide upon their own jurisdiction. Further it was also held in the case there is any ambiguity with regard to interpretation of any statute or if wordings of any provision is not suffice then in such cases interpretation will be given on the lines of principle of equity, justice and good conscience. Thus after this landmark case, principles of International Convention on Maritime Laws were made applicable in India’s common law. The rationale behind applying international convention was that there was no Indian Statutes in relation to Maritime claims governing Indian court’s jurisdiction. This was a departure from long standing custom of applying Maritime laws British Legislations.
In the year 2005, a major step was adopted by the Government of India for furtherance and development of Maritime Laws in India. The government circulated a draft Bill on Admiralty Law, the said draft was named as Admiralty Act of 2005. The aforesaid bill was floated with the intent to repeal all the pre-existing British legislations which had by now become obsolete and was considered not proper for deciding cases of present times. Further it also aimed to bring into existence a comprehensive law to regulate the claims, jurisdiction, procedure, etc., in admiralty law in India.[6] However, the draft bill was not passed and made into a statute.
II. Admiralty Laws in India
In addition to the above mentioned laws applicable in India for ruling on matters relating to Maritime issues, there exist several other statutes which can be made applicable in India as such legislations also in a way or other effects Maritime matters. Indian Shipping Merchants Act, Indian Carriage of Goods by Sea Act, Indian Bills of Lading Act, Major Port of Trust Act , Marine Insurance Act are few of the several legislations. Also, certain laws in relation to Employment of Labours are also considered relevant for the purpose of Maritime. Though such laws are based on social security measures but since Maritime cases also involves issues relating to seafarers, officers and crew persons, such legislations are considered are relevant. Apart from various legislations, judicial precedents and principles laid down therein are also recognised and made applicable for deciding Maritime cases.
Jurisprudence on Maritime in India started evolving from customs and trade practices of people involved in Maritime trade. Such trade practices were later developed into established legal norms through codification of such practices into various legislations. However, a close analysis of such legislations reveals that there exists serious loopholes and thus it becomes inevitable to critically examine pre and post independence era laws of Maritime and suggests amendments suitably India has numerous ports to enable trade and through those ports it deals with a huge number of cargos per annum. There are many steps being taken by the govt. of India on different levels to enhance the functioning of maritime law. From construction of new ports to introduction of various schemes, the efforts are multidimensional in nature due to which its interaction with law is unavoidable. Hence facilitation for smooth functioning between the various factors is needed.
References:
[1] The Indian Ports Act, 1908 deals with the administration of the ports and the jurisdiction over ships in ports.
[2] See, Clause 32, the Letters Patent, 1862.
[3] Clause 32, ibid, declared the High Courts of Judicature at Madras, Bombay and Fort William in Bengal as Courts of Admiralty or of Vice Admiralty.
[4] S.22 , Supreme Court of Judicature (Consolidation) Act, 1925.
[5] M. V. Elisabeth v. Harwan Investment and Trading Pvt Ltd., AIR 1993 SC 1014: (1993) Supp. 2 SCC
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.
[6] “Admiralty Bill, 2005”, http://www.prsindia.org/billtrack/the-admiralty-bill-2005-160/, [accessed on 4th April 2017].