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PART I - JURISDICTION IN
ADMIRALTY |
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CHAPTER 1
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History and Admiralty Jurisdiction of the High
Courts
|
OPEN |
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Early History of the High Courts; Historical
Development; Statutory Jurisdiction; Jurisdiction; Colonial Courts of
Admiralty |
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CHAPTER 2
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Specific Jurisdiction and Jurisdiction in Admiralty
|
OPEN |
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The three Indian Courts of Admiralty i.e. Bombay,
Calcutta and Madras were courts of specific jurisdiction. In the course of
time the jurisdiction of the High Courts of Calcutta, Bombay, Madras,
Gujarat, Andhra Pradesh and Orissa have entertained Admiralty actions |
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CHAPTER 3
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Building, Equipping or Repairing of any Ship
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OPEN |
| The claimant can approach the court for arrest of a
ship for unpaid dues towards carrying out repair work on ship, ship building
or equipping |
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CHAPTER 4
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Necessaries Supplied or Services rendered to any Ship
|
OPEN |
| If it is conclusively shown that necessaries supplied
or services rendered to any ship are prima facie 'necessaries' and are
within the category of necessaries within the scope and ambit of section 5
of Admiralty Courts Act, 1861, admiralty action will lie |
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CHAPTER 5
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Bill of Lading of any Goods for Damage
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OPEN |
| Any claim by the owner or consignee or assignee of any
bill of lading of any goods carried into any port in India in any ship for
damage done to the goods or any part thereof by the negligence or misconduct
of, or for any breach of duty or breach of contract on the part of, the
owner, master or crew of the ship, admiralty action will lie |
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CHAPTER 6
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Loss or Damage done by any Ship
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OPEN |
| The claimant must establish that the ship has, done the
damage (whether by collision or otherwise) to invoke admiralty jurisdiction
over any claim for damage |
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CHAPTER 7
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|
Damage received by any Ship or Sea-Going Vessel
|
OPEN |
| Damage received by any ship or sea-going vessel whether
such ship or vessel may have been within Indian waters or upon high seas at
the time when the damage was received |
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CHAPTER 8
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|
Title, Possession, Ownership, Employment or Earnings of a Ship
|
OPEN |
| Article 1 of the Brussel Arrest Convention and also of
the Geneva Arrest Convention deals with the above subject maritime claim
although the conventions has not been adopted by legislation, the principles
incorporated are applicable as per Supreme Court of India judgments to
invoke admiralty jurisdiction for ship arrest in India read with Admiralty
Court Act, 1861 |
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CHAPTER 9
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|
Salvage
|
OPEN |
| Salvor has a maritime lien on the salvaged property. A
successful salvage claim requires three proofs: marine peril; voluntary
service rendered when not required as an existing duty or from a special
contract; and success in whole or in part, or contribution to the success of
the operation |
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CHAPTER 10
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Wages
|
OPEN |
| A seaman to whom wages are due has a right of action
against the owner, the crew may bring an action in the Admiralty court
either in personam against the owner, or in rem against the ship but he
cannot recover wages beyond the day on which the suit is filed and if he
fails to obtain relief by one process, the other remains open to him |
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CHAPTER 11
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Disbursements
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OPEN |
| Disbursements by the master on account of the ship can
be recovered in a suit for wages. The terms disbursements includes all
proper expenditure made by the master on the ship and must generally be
explained by reference to what are necessaries for ship |
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CHAPTER 12
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Bottomry & Respondentia
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OPEN |
| Bottomry is a contract in the nature of a mortgage by
which money is borrowed to be applied to the necessities of a ship |
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CHAPTER 13
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Towage
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OPEN |
| The High Court has admiralty jurisdiction to hear and
determine any claim in the nature of towage |
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CHAPTER 14
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Mortgage or Hypothecation
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OPEN |
| By a mortgage the mortgagee acquires a right to the
ownership of a vessel in a certain event, namely, on default of payment of
principal and interest, since it is a transfer of all the mortgagor's
interest by way of security for the payment of a loan |
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CHAPTER 15
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Claims relating to Cargo and Contract of
Affreightment
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OPEN |
| The High Court has Admiralty jurisdiction over any
claim arising out of an agreement relating to the use or hire of a ship; or
relating to the carriage of goods in a ship; or tort in respect of goods
carried in a ship |
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CHAPTER 16
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Forfeitures
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OPEN |
| A ship is liable to be forfeited under section 33, 35,
68 and 69 (Part V) of the Merchant Shipping Act 1958 |
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CHAPTER 17
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Loss of Life or Personal Injury
|
OPEN |
| Ship is liable to be arrested for the enforcement of
maritime claims, or seized in execution or satisfaction of judgments in
legal actions arising out of collisions, salvage, loss of life or personal
injury, loss or damages to goods and the like |
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CHAPTER 18
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Use or Hire of any Ship
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OPEN |
| Unpaid dues for any use or hire of a ship, admiralty
action will lie |
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CHAPTER 19
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Carriage of Goods or Passengers in any Ship
|
OPEN |
| Under the arrest conventions and the principles as
adopted by the Supreme Court of India, admiralty action can be invoked |
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CHAPTER 20
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General Average
|
OPEN |
| The lien on cargo for general average charges can be
exercised only by the shipowner in possession of the goods and, where
necessary. it is his duty to other cargo owners to protect their interests
by retaining possession of any goods in respect of which a contribution in
G/A is outstanding |
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CHAPTER 21
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Pilotage
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OPEN |
| A pilot may proceed either in rem or in personam for
the authorised pilotage dues to which he may be entitled |
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CHAPTER 22
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Construction, Repair or Equipment of any Ship
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OPEN |
| Construction, Repair or Equipment of any Ship are
maritime claim |
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CHAPTER 23
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|
Dock, Port, Canal, Harbour, Waterway Charges and
Dues
|
OPEN |
| Unpaid Charges and Dues in relation to Waterway, Dock,
Port, Canal and Harbour are maritime claims |
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CHAPTER 24
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|
Cost or Expenses relating to Wrecked, Stranded,
Abandoned and Sunken Ship
|
OPEN |
| Maritime claims includes cost or expenses relating to
wrecked, stranded, abandoned and sunken ship |
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CHAPTER 25
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Cost or Expenses relating to the Preservation of
Abandoned Ship and Maintenance of its Crew
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OPEN |
| Maritime claims includes cost or expenses relating to
the preservation of abandoned ship and maintenance of its crew |
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CHAPTER 26
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Insurance Premium
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OPEN |
| Insurance Premium are within the category of
'necessaries' |
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CHAPTER 27
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Commission, Brokerage or Agency Fees
|
OPEN |
| Under the Geneva arrest convention and the principles
as adopted by the Supreme Court of India, admiralty action can be invoked |
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CHAPTER 28
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Sale of a Ship
|
OPEN |
| The sale of a ship pending the suit is normally by
public auction after publication of the notice of sale in such newspapers as
the court may direct |
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CHAPTER 29
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Limitation of Liability
|
OPEN |
| Part X of the Indian Merchant Shipping Act, 1958 deals
with Limitation of Liability |
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CHAPTER 30
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|
Publicly Owned Ships
|
OPEN |
| Action in rem against the Government of India in
respect of claims against the Government or arrest, detention or sale of
ships or cargo or other property belonging to the Government unless notice
under section 80 (1) of the Code of Civil Procedure is complied with |
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CHAPTER 31
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|
Effect of Admiralty Action in Rem on Insolvency of
Ship Owner
|
OPEN |
| Ship of a insolvent ship owner can be arrested, the
ship owner will be replaced with the liquidator in place and stead of the
ship owner |
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CHAPTER 32
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|
Oil Pollution
|
OPEN |
| Early History of the High Courts; Historical
Development; Statutory Jurisdiction; Jurisdiction; Colonial Courts of
Admiralty |
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CHAPTER 33
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|
Solicitors' Lien
|
OPEN |
| Early History of the High Courts; Historical
Development; Statutory Jurisdiction; Jurisdiction; Colonial Courts of
Admiralty |
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|
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PART II - ADMIRALTY
PRACTICE |
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CHAPTER 34
|
|
International Convention for Arrest of Ships
|
OPEN |
Although the Brussel and Geneva conventions has not
been adopted by legislation, the principles incorporated in the conventions
are applicable for the enforcement of maritime claims against foreign ships
as is held by the Supreme Court of India
|
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CHAPTER 35
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In Rem and Personam Actions
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OPEN |
| An action in rem is directed towards a ship rather than
against a person which is an in personam or personal action |
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CHAPTER 36
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Ship and Sisterships
|
OPEN |
| The word "vessel" was substituted for "ship" The ships
are deemed to be sisterships if they are in the same ownership when all the
shares are owned by the same person or persons |
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CHAPTER 37
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Arrest
|
OPEN |
| The main purpose of arrest is to obtain security for
satisfaction of judgment in the action in rem and it is necessary to arrest
the ship in order to establish jurisdiction |
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CHAPTER 38
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Release
|
OPEN |
| In cases where the arrested ship is released on
security being furnished for the plaintiff's claim, the suit, unless
compromised, will proceed to trial and judgment in the normal course |
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CHAPTER 39
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|
Maritime Claim
|
OPEN |
| Article 1 (1) of the Brussels and Geneva International
Conventions on Arrest of Ships defines 'Maritime Claim' |
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CHAPTER 40
|
|
Maritime Lien
|
OPEN |
| Only a limited class of maritime liens are recognised |
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CHAPTER 41
|
|
Possessory Lien
|
OPEN |
| Possessory liens are recognised as self-help remedies |
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CHAPTER 42
|
|
Mareva Injunction
|
OPEN |
| There is no provision in the law of India for Mareva
injunction |
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CHAPTER 43
|
|
Attachment before Judgment
|
OPEN |
| "Attachment" before judgment of a ship, as of any other
property, is available in all the Indian courts of ordinary civil
jurisdiction having jurisdiction over the subject-matter of the claim for
most kinds of claims, which would include claim for charter hire or
stevedoring services or necessaries supplied |
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CHAPTER 44
|
|
Lay Time
|
OPEN |
| The time during which a ship is lying, for the purpose
of loading or discharging is Laytime, as distinct from moving with the
object of carrying her cargo from one place to another |
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CHAPTER 45
|
|
Effect of Arbitration Clause on Arrest
|
OPEN |
| Arbitration clause in the Charter Party Agreement or
Bill of Lading are given effect to |
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CHAPTER 46
|
|
Arbitration
|
OPEN |
| Merchant or the claimant has no right to arrest a ship
in respect of a dispute arising under a contract, which contains an
arbitration clause |
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CHAPTER 47
|
|
Merchant Shipping Act 1958, s.443, 444
|
OPEN |
| Section 433 and 434 of the Merchant Shipping Act deals
with detention of foreign ship that has occasioned damage and the power to
enforce detention of ship |
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CHAPTER 48
|
|
Claims Payable in Foreign Currency
|
OPEN |
| A sum of money expressed in a foreign currency can
legitimately be claimed by the plaintiff and decreed by the court |
|
CHAPTER 49
|
|
Interest
|
OPEN |
| The question of interest on a claim in an Admiralty
suit is dealt with in accordance with the provisions of Section 34 of the
Code of Civil Procedure, 1908 |
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CHAPTER 50
|
|
Priorities
|
OPEN |
| The Indian courts will decide questions of priority on
the same principles as the Admiralty Court in England and a contractual
claimant |
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CHAPTER 51
|
|
Applicable Law
|
OPEN |
| The applicable laws for ship arrest are the Admiralty
Court Act, 1861, Admiralty Court Act, 1890 and Admiralty Court Act 1891 |
|
CHAPTER 52
|
|
Limitation Periods, Time Bar
|
OPEN |
| The (Indian) Limitation Act 1963 applies to all claims
within the Admiralty jurisdiction of the High Courts. The Act provides a
three-year limitation period for actions for damage, wages, necessaries,
salvage, and towage. In case of claims for loss or damage to cargo brought
under bills of lading incorporating the Hague Rules, the one year period
under rule 6 of Article III, providing for an extinguishments of the cause
of action, itself may apply |
|
CHAPTER 53
|
|
Security for Costs and Damages
|
OPEN |
| Security for costs and damages is not a condition for
the arrest, but while applying for the arrest an undertaking is required to
be given in writing to pay such sum by way of damages as the court may award
compensation in the event of a party affected sustains prejudice by the
arrest |
|
CHAPTER 54
|
|
Wrongful Arrest
|
OPEN |
| The cases involving wrongful arrest are rare and there
isnt a single decided case in India and to succeed in a claim for wrongful
arrest, the owners must demonstrate that there is either mala fides (bad
faith) or crassa negligentia (gross negligence) which implies malice |
|
CHAPTER 55
|
|
Admiralty Rules
|
OPEN |
| The Admiralty Rules of the High Courts provide that the
rules and practice of the court in the matter of suits and proceedings on
the original side of the court shall, if not inconsistent with the said
Rules, apply to suits and proceedings on the Admiralty side of the court |
|
CHAPTER 56
|
|
Admiralty Suit and Pleadings
|
OPEN |
| Plaint, Judges Order, Undertaking etc |
|
CHAPTER 57
|
|
Counter Security
|
OPEN |
| The High court having admiralty jurisdiction has
discretionary power to pass order for counter security if required |
|
CHAPTER 58
|
|
Application for Arrest
|
OPEN |
| The Admiralty Rules of the High Courts having Admiralty
Jurisdiction require that a suit shall be instituted by a plaint drawn up,
subscribed and verified according to the provisions of the Civil Procedure
Code 1908 |
|
CHAPTER 59
|
|
Order of Arrest and Warrant of Arrest
|
OPEN |
|
The Admiralty Judge may pass a separate order arresting the ship and
also sign the Judges Order for arrest of the ship. Warrant of Arrest are
sometimes dispenses with by the Judge
|
|
CHAPTER 60
|
|
Writ of Summons
|
OPEN |
| A writ of summons on the vessel may not be required if
warrant of arrest is properly served on the vessel |
|
CHAPTER 61
|
|
Service, Effecting the Arrest
|
OPEN |
| If the court has passed an order of arrest of the ship
dispensing the Warrant of Arrest, in such event the Sheriff/marshal will
issue a letter and the same along with copy of the order is served on the
ship and other concerned authorities |
|
CHAPTER 62
|
|
Arrest of Ship
|
OPEN |
| A ship may be arrested to acquire jurisdiction; or
to obtain security for satisfaction of the claim when decreed; or in
execution of a decree |
|
CHAPTER 63
|
|
Release from Arrest
|
OPEN |
| Following its arrest, the ship is usually released from
arrest after security has been provided by the ship owner or any interested
parties for the claim. The security may be in the form of a bail bond, a
payment of money into court, a bank guarantee or a letter of undertaking
(LOU) from the ship owner's protection and indemnity club (P.& I. Club) |
|
CHAPTER 64
|
|
Security for Release of a Ship
|
OPEN |
| Security for the claim in the suit is furnished by
means of a cash deposit in the registry or a bank guarantee for the amount
stated in the warrant of arrest |
|
CHAPTER 65
|
|
Enforced Sale of the Ship
|
OPEN |
| In any action a court has power to order the sale of
property which is perishable, likely to deteriorate or in relation to which
there is good reason for sale |
|
CHAPTER 66
|
|
Appraisement and Judicial Sale
|
OPEN |
| Appraisement is the official valuation of the ship by a
court appointed valuer in order to prevent the ship from being sold at too
low a price |
|
CHAPTER 67
|
|
Condition of Sale
|
OPEN |
| The sale is free and clear of all maritime or other
liens and encumbrances |
|
CHAPTER 68
|
|
Sheriffs Poundage
|
OPEN |
| Poundage is payable at 1 per cent of the amount
received by the plaintiff in full or part satisfaction of a judgment or, in
the event of the claim being satisfied, compromised or settled outside
court, upon the amount of such satisfaction, compromise or settlement |
|
CHAPTER 69
|
|
Costs
|
OPEN |
| The court has the discretionary power to accept or
reject the costs |
|
CHAPTER 70
|
|
Restrictions to invoke Admiralty Jurisdiction
|
OPEN |
| There are restrictions to invoke Admiralty Jurisdiction
on issues such as arbitration, publicly owned ship, ship owned by government
of foreign state, collision |
|
CHAPTER 71
|
|
Appeals
|
OPEN |
| Any party aggrieved by the order passed by the single
judge of the trial court have an option to file an appeal before the
division bench in the same High Court and any order passed by the appeal
court of the High Court the aggrieved party may file an Special Leave
Petition in the Supreme Court of India |
|
CHAPTER 72
|
|
Execution of Foreign Decree
|
OPEN |
| A Person who has obtained a decree from a court in a
foreign country can approach an Indian court for enforcement of the said
decree under the Civil Procedure Code, 1908 |
|
CHAPTER 73
|
|
Parties and Pleadings
|
OPEN |
| In the title of the plaint in a suit in rem, after the
name of the ship which is sued, its nationality is usually stated |
|
CHAPTER 74
|
|
Procedure for Ship Arrest
|
OPEN |
| Urgent application for obtaining order of arrest is
moved before the Admiralty Judge |
|
CHAPTER 75
|
|
Presence of a Ship (Res) at the time of filing of
Admiralty Suit
|
OPEN |
| Court can acquire jurisdiction if the writ or if the
warrant of arrest is executed on the ship when it arrives within the
territorial jurisdiction of this Court |
|
CHAPTER 76
|
|
Beaching of a Ship for Demolition
|
OPEN |
| Once a ship’s Bill of Entry is filed for demolition the
ship is no longer considered as a ship and therefore Admiralty action cannot
be initiated |
|
CHAPTER 77
|
|
Indian Flag Ship
|
OPEN |
| Ship flying Indian flag can be arrested by invoking
admiralty jurisdiction |
|
CHAPTER 78
|
|
Detaining vessel under Merchant Shipping Act
|
OPEN |
| Ship can be detained under section 443, 444 of the
Merchant Shipping Act |
|
CHAPTER 79
|
|
Indian Territorial Waters for Ship Arrest
|
OPEN |
| The limit of the territorial waters is the line every
point of which is at a distance of twelve nautical miles from the nearest
point of the appropriate baseline |
|
CHAPTER 80
|
|
One Ship Company
|
OPEN |
| It has long been the practice in the shipping business
to arrange for several ships which are financed by a common source and
managed or operated as a fleet, to be registered in the names of separate
companies whose only asset is the particular ship registered in its name |
|
CHAPTER 81
|
|
Effect of Ship Arrest
|
OPEN |
| The effect of arrest is that it constitutes the ship or
other property as security in the hands of the court for the claim in the
action and this security cannot be defeated by the subsequent insolvency of
the owner of the arrested property |
|
CHAPTER 82
|
|
Carrier's Identity
|
OPEN |
| Identification of the carrier may be problematic where
goods are carried on a chartered vessel and the bill of lading is in the
hands of a shipper or receiver who is not himself party to the charterparty |
|
CHAPTER 83
|
|
Indian Ships, Registration
|
OPEN |
| A ship entitled to fly the flag of a country needs to
be registered in that country. The object of registration is to ensure that
persons who are entitled to the privilege and protection of the Indian flag
get them |
|
CHAPTER 84
|
|
Crew on Board after Arrest of Ship
|
OPEN |
| The Sheriff or the Marshal owes no duty to the crew on
board as such. The relationship of the Sheriff or the Marshal to the crew
will depend upon the circumstances as they affect the discharge of the
Sheriff or the Marshal’s duty to retain custody of, and to preserve the ship |
|
CHAPTER
85
|
|
Necessaries, a Maritime Claim
|
OPEN |
| "Necessaries" is defined under section 5 of the
Admiralty Courts Act, 1861 |
|
CHAPTER 86
|
|
Claims relating to Cargo
|
OPEN |
| Admiralty jurisdiction can be invoked over any claim
relating to Cargo |
|
CHAPTER 87
|
|
Claims for Unpaid Bunker Dues
|
OPEN |
| Unpaid dues of Bunker Suppliers are secured by a
maritime claim and or a right to arrest the ship in rem to which the bunkers
were supplied or her sister ship |
|
CHAPTER 88
|
|
Collision Actions
|
OPEN |
| The maritime claims in respect of which the power of
arrest is recognised in law includes claims relating to damage caused by any
ship either in collision or otherwise |
|
CHAPTER 89
|
|
Pan India Ship Arrest
|
OPEN |
| An order of arrest of a ship can be obtained from the
Bombay High Court and executed on a ship anywhere in Indian waters |
|
CHAPTER 90
|
|
Piercing the Corporate Veil
|
OPEN |
| Bombay High Court in appeal allowed lifting the
corporate veil to establish beneficial ownership for the purpose of
arresting a sister vessel-ship even when there is no fraud element |
|
CHAPTER 91
|
|
Arresting Ship to obtain Security for Arbitral Award
or Court Judgment
|
OPEN |
| A ship may be arrested for the purpose of obtaining
security notwithstanding that, by virtue of a jurisdiction clause or
arbitration clause |
|
CHAPTER 92
|
|
Foreign State Owned and Publicly Owned Vessel
|
OPEN |
| If the ship belongs to Government of Foreign State, in
that event consent of the Central Government in India would be required to
proceed against the vessel and its owners |
|
CHAPTER 93
|
|
Frequently Asked Questions on Ship Arrest
|
OPEN |
| Frequently asked question on Ship Arrest in India and
Admiralty Laws of India |
|
|
|
|
|
PART III - RULES,
CONVENTIONS, ACTS, ORDERS, LANDMARK CASES, GLOSSARY AND MISCELLANEOUS |
|
APPENDIX 1
|
|
Bombay High Court Rules
|
OPEN |
| Rules for regulating the procedure and practice in
cases brought before the Bombay High Court under Admiralty jurisdiction |
|
APPENDIX 2
|
|
Madras High Court Rules
|
OPEN |
| Rules for regulating the procedure and practice in
cases brought before the High Court of Judicature at Madras exercising
Admiralty jurisdiction |
|
APPENDIX 3
|
|
Admiralty Court Act, 1861
|
OPEN |
| The jurisdiction conferred by this Act on the High
Court of Admiralty may be exercised either by proceedings in rem or by
proceedings in personam |
|
APPENDIX 4
|
|
Admiralty Court Act, 1890
|
OPEN |
| An Act to amend the law respecting the exercise of
Admiralty Jurisdiction |
|
APPENDIX 5
|
|
Admiralty Court Act, 1891
|
OPEN |
| An Act to declare certain Courts in [India] to be
Colonial Courts of Admiralty |
|
APPENDIX 6
|
|
The Major Port Trust Act, 1963
|
OPEN |
| An Act to make provision for the constitution of port
authorities for certain major ports in India and to vest the administration,
control and management of such ports in such authorities and for matters
connected therewith |
|
APPENDIX 7
|
|
The Indian Ports Act, 1908
|
OPEN |
| An Act to consolidate the enactments relating to Ports
and Port-charges |
|
APPENDIX 8
|
|
The Indian Bills of Lading Act, 1856
|
OPEN |
| An Act to amend the Law relating to Bills of Lading |
|
APPENDIX 9
|
|
The York-Antwerp Rules, 2004
|
OPEN |
| The York-Antwerp Rules, 2004 recognises two main type
of allowances, 'common safety allowances' and 'common benefit allowances' |
|
APPENDIX 10
|
|
The Multi Modal Transportation of Goods Act, 1993
|
OPEN |
| An Act to provide for the regulation of the multimodal
transportation of goods, from any place in India to a place outside India,
on the basis of a multimodal transport contract and for matters connected
therewith or incidental thereto |
|
APPENDIX 11
|
|
The Indian Carriage of Goods by Sea Act, 1925
|
OPEN |
| An Act to amend the law with respect to the carriage of
goods by sea |
|
APPENDIX 12
|
|
The Merchant Shipping Act, 1958
|
OPEN |
| An Act to foster the development and ensure the
efficient maintenance of an Indian mercantile marine in a manner best suited
to serve the national interests and for that purpose to establish a National
Shipping Board and a Shipping Development Fund, to provide for the
registration of Indian ships and generally to amend and consolidate the law
relating to merchant shipping |
|
APPENDIX 13
|
|
Brussels Convention on Arrest of Ships
|
OPEN |
| Having recognised the desirability of determining by
agreement certain uniform rules of law relating to the arrest of seagoing
ships, have decided to conclude Brussels Convention on Arrest of Ship |
|
APPENDIX 14
|
|
Geneva Convention on Arrest of Ships
|
OPEN |
| The States Parties to this Convention, Recognizing the
desirability of facilitating the harmonious and orderly development of world
seaborne trade, Convinced of the necessity for a legal instrument
establishing international uniformity in the field of arrest of ships which
takes account of recent developments in related fields, |
|
APPENDIX 15
|
|
Shipping Glossary
|
OPEN |
| Alphabetically arranged list of often difficult or
specialised shipping words with their definition |
|
APPENDIX 16
|
|
Landmark Admiralty Cases
|
OPEN |
| Landmark court decision on admiralty laws in India
mainly on ship arrest |
|
