Chapter 55

Fifteenth Edition (2024)

Presence of a Ship (Res) at the time of filing of Admiralty Suit

It is not necessary that the vessel should take berth, the vessel can be anywhere in the Indian territorial waters. An order of arrest of a ship can be obtained from the High Court having admiralty jurisdiction and that the ship should be in that state jurisdiction of the High Court.

In admiralty law, the presence of a ship (res) within the jurisdiction of the court is a crucial factor for initiating an admiralty suit and obtaining an order for the arrest of the vessel. The principle that the ship must be within the territorial jurisdiction of the court, typically within Indian territorial waters, is well established. However, it is not required that the vessel be berthed at a port; it can be anywhere within the jurisdictional limits of the High Court with admiralty jurisdiction.

The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, outlines the jurisdiction and procedures for the arrest of ships in India. According to Section 5 of the Act, a High Court may exercise jurisdiction to arrest a vessel for a maritime claim.

Case Law Supporting the Principle
Several landmark cases illustrate the principle that a vessel must be within the jurisdiction of the High Court for an arrest order to be issued:

MV Elisabeth v. Harwan Investment & Trading Pvt. Ltd. (1993) Supp (2) SCC 433:

This landmark judgment by the Supreme Court of India established that Indian High Courts have broad admiralty jurisdiction. It emphasized that admiralty jurisdiction can be exercised as long as the vessel is within the territorial waters of India. The case confirmed that the presence of the ship within the jurisdiction is sufficient to entertain an admiralty suit.
OIL & Natural Gas Corporation Ltd. v. SAIBOS Offshore Ltd. (2005) 6 SCC 454:

This case reiterated the principle that a ship within the jurisdiction of the court, including territorial waters, is sufficient to invoke admiralty jurisdiction. The Supreme Court upheld the arrest of a vessel that was within the Indian territorial waters at the time of filing the suit.
Videsh Sanchar Nigam Ltd. v. MV Kapitan Kud (1996) 7 SCC 127:

The Bombay High Court, in this case, clarified that the vessel does not need to be anchored or berthed at a port. It can be anywhere within the territorial waters of India, and the court can still exercise its admiralty jurisdiction to arrest the ship.
Bharat Petroleum Corporation Ltd. v. MV Melina (1992) 1 BomCR 527:

The Bombay High Court held that the presence of the ship within the territorial waters of India at the time of the application for arrest is sufficient for the court to exercise its jurisdiction. The ship need not be at a specific berth or port.
MV Al Quamar v. Tsavliris Salvage (International) Ltd. (2000) 8 SCC 278:

The Supreme Court upheld the arrest of a ship that was within Indian territorial waters and emphasized that the High Court’s admiralty jurisdiction extends to the territorial limits of the state.
Legal Principles
Territorial Jurisdiction: The High Court with admiralty jurisdiction can issue an arrest order if the vessel is within its territorial waters. This is based on the principle that the court must have control over the res (the ship).
No Requirement for Berthing: It is not necessary for the ship to be berthed or anchored at a port. The vessel can be anywhere within the territorial waters of the state.
Effectiveness of Arrest: The arrest order is effective as long as the vessel is within the jurisdictional limits when the order is executed. If the vessel leaves the jurisdiction before the arrest, the order cannot be enforced.

The presence of a ship within the jurisdiction of a High Court with admiralty jurisdiction in India is sufficient to file an admiralty suit and obtain an order of arrest. The ship does not need to be berthed at a port; it can be anywhere within the territorial waters. This principle is supported by several key judgments from the Supreme Court and various High Courts in India.

In admiralty law, the presence of the vessel or res within the jurisdiction of the court at the time of filing an admiralty suit is a critical requirement. The principle underpinning this requirement is that the res must be within the court's territorial jurisdiction to enable the court to exercise in rem jurisdiction over the vessel and grant an order of arrest. This principle is firmly established under Indian admiralty law and is governed by the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 ("Admiralty Act, 2017") and the Admiralty Rules of the High Courts.

Statutory Framework

Under Section 5 of the Admiralty Act, 2017, a High Court having admiralty jurisdiction is empowered to order the arrest of a vessel to secure a maritime claim. This section provides the procedural framework for invoking the court’s jurisdiction in rem, which operates against the vessel itself as the subject matter of the suit. For the court to exercise such jurisdiction, the ship must be present within the territorial jurisdiction of the court at the time of filing the suit.

The Admiralty Rules of the High Courts further reinforce the necessity of the vessel's presence within the jurisdiction to enable the issuance of an arrest order. However, the Rules and the Admiralty Act do not stipulate that the vessel must be berthed at a port. The presence of the vessel anywhere within the territorial waters of the concerned High Court is sufficient to confer jurisdiction.

Territorial Jurisdiction and the Concept of Presence

The concept of territorial jurisdiction in admiralty law revolves around the ship's physical presence within the waters governed by the High Court. The court’s jurisdiction extends to the state’s territorial waters, typically defined as extending 12 nautical miles from the baseline, as per the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. Consequently, the vessel need not be anchored or berthed at a specific port; it can be located anywhere within these territorial waters.

In the seminal case of MV Elisabeth v. Harwan Investment & Trading Pvt. Ltd. (1993) Supp (2) SCC 433, the Supreme Court of India laid down the principle that the admiralty jurisdiction of the High Courts is broad and extends to any vessel within Indian territorial waters. The Court emphasized that as long as the vessel is within the territorial jurisdiction of the court, the court has the authority to entertain an admiralty suit and issue an order of arrest.

Similarly, in Videsh Sanchar Nigam Ltd. v. MV Kapitan Kud (1996) 7 SCC 127, the Bombay High Court clarified that the vessel’s physical presence within the territorial waters is the primary determinant for jurisdiction. The court held that it is unnecessary for the ship to be anchored at a port; its presence anywhere within the territorial waters is sufficient for the court to exercise its jurisdiction.

Key Case Laws Supporting the Principle

  1. MV Elisabeth v. Harwan Investment & Trading Pvt. Ltd. (1993) Supp (2) SCC 433:

    • The Supreme Court of India in this landmark judgment established that Indian High Courts have broad admiralty jurisdiction over vessels within Indian territorial waters. The court confirmed that the presence of the ship within the jurisdiction is sufficient to entertain an admiralty suit.
  2. OIL & Natural Gas Corporation Ltd. v. SAIBOS Offshore Ltd. (2005) 6 SCC 454:

    • In this case, the Supreme Court reiterated that the presence of a vessel within the jurisdiction of the High Court is sufficient to invoke admiralty jurisdiction. The court upheld the arrest of a vessel that was within Indian territorial waters at the time of filing the suit.
  3. Videsh Sanchar Nigam Ltd. v. MV Kapitan Kud (1996) 7 SCC 127:

    • The Bombay High Court clarified that the vessel need not be berthed at a port. It can be anywhere within the territorial waters of India, and the court can still exercise its admiralty jurisdiction to arrest the ship.
  4. Bharat Petroleum Corporation Ltd. v. MV Melina (1992) 1 BomCR 527:

    • The Bombay High Court held that the presence of the ship within the territorial waters of India at the time of the application for arrest is sufficient for the court to exercise its jurisdiction. The ship need not be at a specific berth or port.
  5. MV Al Quamar v. Tsavliris Salvage (International) Ltd. (2000) 8 SCC 278:

    • The Supreme Court of India upheld the arrest of a ship that was within Indian territorial waters, affirming that the admiralty jurisdiction of the High Court extends to the territorial limits of the state.

These cases collectively establish that as long as the vessel is present within the territorial waters at the time of filing the suit, the High Court can exercise admiralty jurisdiction and order the arrest of the ship.

Effectiveness of Arrest and Execution of Order

The effectiveness of an arrest order hinges on the vessel's continued presence within the jurisdictional limits at the time of executing the order. If the vessel departs the jurisdiction before the arrest order is enforced, the court’s jurisdiction in rem ceases, and the order cannot be executed. This principle underscores the importance of timely action in executing the arrest order to prevent the vessel from leaving the jurisdiction.

In OIL & Natural Gas Corporation Ltd. v. SAIBOS Offshore Ltd. (2005) 6 SCC 454, the Supreme Court emphasized that the arrest order is effective only as long as the vessel remains within the territorial waters. Once the vessel leaves the jurisdiction, the court loses its control over the res, rendering the arrest order unenforceable.

The presence of a vessel within the territorial jurisdiction of the High Court at the time of filing an admiralty suit is a fundamental requirement for the exercise of in rem jurisdiction and the issuance of an arrest order. The ship’s physical location within the territorial waters of India, irrespective of whether it is berthed at a port, is sufficient to confer jurisdiction on the High Court. This principle, supported by the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the Admiralty Rules of the High Courts, and a robust body of case law, ensures that admiralty courts in India have the necessary authority to adjudicate maritime claims and enforce orders of arrest effectively.


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