Ship Arrest in India

History and Admiralty jurisdiction of the High Courts
The historical development of admiralty jurisdiction and procedure is of practical as well as theoretical interest, since opinions in admiralty cases frequently refer to the historical background in reaching conclusions on the questions at issue. The special jurisdiction of admiralty has a maritime purpose, different from the common law. It is not exclusively rooted in the civil law system, although it includes substantial derivations therefrom. It has a strong international aspect, but may undergo independent changes in the several countries. Certain features exist in all countries that have an admiralty law, and such international features are given serious consideration by admiralty courts. By the end of the seventeenth century, the admiralty jurisdiction in England had been restricted until it was not as extensive as in the other European maritime countries, due to a long controversy in which the common law courts, with the aid of Parliament, had succeeded in limiting the jurisdiction of admiralty to the high seas, and excluding its jurisdiction from transactions arising on waters within the body of a country.

A suit against a foreign ship owned by a foreign company not having a place of residence or business in India 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. Courts’ admiralty jurisdiction is not limited to what was permitted by the Admiralty Court, 1861 and the Colonial Courts of Admiralty Act, 1890. Prior to the decision of m.v Elisabeth-v- Harwan Investment & Trading Pvt Ltd., Goa , the courts exercising Admiralty Jurisdiction statutorily in India were the three High Courts at Calcutta, Madras and Bombay. The High Courts of the other littoral states of India, viz. Gujarat, Karnataka, Kerala, Andhra Pradesh and Orissa, do not possess Admiralty juris-diction, albeit 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 the Indian Parliament and presumably without the benefit of full argument. But after the decision of 1993 Supreme Court m.v Elisabeth-v- Harwan Investment & Trading Pvt Ltd., Goa, interpreting under A.225 the High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers.

The Admiralty jurisdiction of the High Courts at Calcutta, Madras and Bombay were the same as the Admiralty jurisdiction of the High Court in England at the time of the enactment by the British Parliament of the Colonial Courts of Admiralty Act 1890¹ and is, under subsection (2) of the said Act, and subject to the provisions thereof, over the like places, persons, matters and things as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise and exercised in the like manner and to as full an extent as the High Court in England having the same regard as that court to international law and the comity of nations. The subsequent extension of the Admiralty jurisdiction of the High Court in England by statutes passed after that date by the British Parliament, the Administration of Justice Act 1920,² re-enacted by the Supreme Court of Judicature (Consolidation) Act, 1925,³ is not shared by the said three High Courts. After India attained independence, the Indian Parliament has so far not exercised it powers to make laws with respect to Admiralty and thus the three Indian High Courts were to apply Admiralty laws as it was applied by the English Court of Admiralty as defined in the Admiralty Court Act, 1861.⁴ The scope and nature of the Admiralty jurisdiction exercised by the High Courts in India have been examined and ascertained in Kamlakar v. The Scindia Steam Navigation Co. Ltd.⁵; Rungta Sons Ltd. v. Owners and Master of Edison⁶; National Co. Ltd. v. M. S. Asia Mariner.⁷ ; m.v Elisabeth-v- Harwan Investment & Trading Pvt Ltd., Goa ^7a

The fact that the High Court continues to enjoy the same jurisdiction as it had immediately before the commencement of the Constitution, as stated in Art. 225, does not mean that a matter which is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt with by the High Court, subject to its own Rules, in excersise of its manifold jurisdiction, which is unless barred, unlimited. To the extent not barred expressly or by necessary implication, the judicial sovereignty of this country is manifested in the jurisdiction vested in the High Courts as superior courts. It is true that the Colonial statutes continue to remain in force by reason of Art. 372 of the Constitution of India, but that does not stultify the growth of law or blinker its vision or fetter its arms. Legislation has always marched behind time, but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of justice.

It was because of the unlimited civil jurisdiction that was already vested in these High Courts that they were declared to be Colonial Courts of Admiralty having the same jurisdiction in extent and quality as was vested in the High Court of England by virtue of any statute or custom. The High Courts were declared to be competent to regulate their procedure and practice in exercise of admiralty jurisdiction in accordance with the Rules made in that behalf. There is, therefore, neither reason nor logic in imposing a fetter on the jurisdiction of those High Courts by limiting it to the provisions of an imperial statute of 1861 and freezing any further growth of jurisdiction. This is all the more true because the Admiralty Court Act, 1861 was in substance repealed in England a long time ago.

Assuming that the admiralty powers of the High Courts in India are limited to what had been derived from the Colonial Courts of Admiralty Act, 1890, that Act, having equated certain Indian High Courts to the High Court of England in regard to admiralty jurisdiction, must be considered to have conferred on the former all such powers which the latter enjoyed in 1890 and thereafter during the period preceding the Indian Independence Act, 1947. What the Act of 1890 did was not to incorporate any English statute into Indian law, but to equate the admiralty jurisdiction of the Indian High Courts over places, persons, matters and things to that of the English High Court. There is no reason to think that the jurisdiction of the Indian High Courts have stood frozen and atrophied on the date of the Colonial Courts of Admiralty Act, 1890.

The Admiralty jurisdiction excercised by the the High Courts in Indian Republic is still governed by the obsolete English Admiralty Courts Act, 1861 applied by (English) Colonial Courts of Admiralty Act, 1890 and adopted by Colonial Courts of Admiralty (India) Act, 1891 (Act XVI of 1891). Yet there appears no escape from it, notwithstanding its unpleasant echo in ears. The shock is still greater when it transpired that this state of affairs is due to lack of legislative exercise.

Viewed in the background of enactment of 1890 it would be too artificial to confine the exercise of power by the High Courts in Admiralty to what was contained in 1861 Act. Even otherwise for deciding the jurisdiction exercised by the High Court in India founded on jurisdiction exercised by the High Court of England it is not necessary to be governed by the decision given by English Courts. Law develops by pragmatic approach to problems arising under an Act and not by abdication or surrender, 1890 Act is an unsual piece of legislation expansive in scope, wider in outlook, opening out the wings of jurisdiction rather than closing in. Its authority and power to exercised by the High Court in England, the width of which was not confined to statute but went deep into custom, practice, necessity and even exigency.

Law of 1890 apart, can the Indian High Courts after 1950 be denied jurisdiction to arrest a foreign ship to satisfy the claim of owner of a bill of lading for cargo taken outside the country ? Without entering into any comparative study of jurisdiction of High Court of England and the High Courts in our country the one basic difference that exists today is that the English Courts derive their creation, constitution and jurisdiction from Administration of Justice Act or Supreme Court Act but the High Courts in our country are established under the Constitution. Under its Art. 225 enlarged preserved the jurisdiction, including inherent jurisdiction, which existed on the date the Constitution came into force and Art. 226 enlarged it by making it not only a custodian of fundamental rights of a citizen but a repository of power to reach its arms to do justice. A citizen carrying on business which is a fundamental right cannot be rendered helpless on premise that the jurisdiction of High Courts stood frozen either under statute of England or any custom or practice prevailing there or the High Court of England cannot exercise the jurisdiction.

Ship and Sisterships
The word "vessel" was substituted for "ship"^7b and is defined as including "any ship or boat, or any other description of vessel used in navigation," whilst "ship" includes any description of vessel used in navigation not propelled by oars. This latter definition does not exclude things not specified, so that it will include any vessel used in navigation not habitually propelled by oars, and will include a hopper barge not navigable without external assistance^7cwhere it was held that a hopper barge with rudder and navigating lights but without means of propulsion , has been held to be a "ship". By the Judicature (Consolidation) Act, 1925, the expression "ship" is defined as including any description of vessel used in navigation not propelled by oars, and the statutory jurisdiction of the High Court over salvage claims for services rendered to a ship would therefore appear to be confined to services rendered to vessels not propelled by oars. The Admiralty Court Act, 1861 defines "Ship" under section 2 of the act:- "Ship" shall include any description of vessel used in navigation not propelled by Oars.

In Steedman –v- Scofield^7d [1992] 2 Lloyd’s Rep .163 (Sheen J.) Mr. Justice Sheen said "To my mind the word "boat" conveys the concept of a structure, whether it be made of wood, steel or fibreglass, which by reason of its concave shape provides buoyancy for the carriage of persons or goods. Thus a lifeboat differs from a liferaft in that the boat derives its buoyancy from its shape, whereas a raft obtains its buoyancy from some method of utilizing air receptacles.". "a vessel is usually a hollow receptacle for carrying goods or people. In common parlance "vessel" is a word used to refer to craft larger than rowing boats and it includes every description of watercraft used or capable of being used as a means of transportation on water."

In Steedman v- Scofield Mr. Justice Sheen considered what was meant by the phrase "used in navigation" and he said "Navigation is the nautical art or science of conducting a ship from one place to another. The navigator must be able to determine the ship’s position and to determine the future course or courses to be steered to reach the intended destination. The word "navigation" is also used to describe the action of navigating or ordered movement of ships on water. Hence "navigable waters" means waters on which ships can be navigated. To my mind the phrase "used in navigation" conveys the concept of transporting persons or property by water to an intended destination. A fishing vessel may go to sea and return to the harbour from which she sailed, but that vessel will nevertheless be navigated to her fishing grounds and back again. "Navgation" is not synonymous with movement on water. Navigation is planned or ordered movement from one place to another."

Under the so called "Dead vessel’ doctrine, a vessel permanently withdrawn from use for navigational purposes is not a vessel, in terms of admiralty jurisdiction. But a vessel is not a "dead vessel" merely because it is not actively engaged in trade or commerce, where arrangements have been made to alter it to fit it for an intended maritime service. And a ship may be a "live ship," not a "dead vessel," when it is in dry dock.

An action in rem lies in the English High Court in respect of matters regulated by the Supreme Court Act, 1981, and in relation to a number of claims the jurisdiction can be invoked not only against the offending ship in question but also against a "sistership" i.e., a ship in the same beneficial ownership as the ship in regard to which the claim arose.

In an unreported judgment m.v. Mariner IV -v- Videsh Sanchar Nigam Limited decided in 15th December 1997 by the appeal court of the Bombay High Court observed that "In view of the decision of the in m. v. Elizabeth, we are of the clear view that the High Court does have jurisdiction to arrest a "sister ship" for securing any maritime claim.".

International Convention for Arrest of Ships
India did not sign and consequently did not ratify or promulgate either the International Convention Relating to the Arrest of Seagoing Ships or the International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, both signed at Brussels on 10 May 1952, and an action in rem may only be invoked against the ship which is the subject of the controversy or in respect of which the claim arose and not against any other ship ("sister ship"), even though owned by the same owner who would be personally liable in an action in personam.

A foreign vessel, no matter what flag she flies, owes temporary and local allegiance to the sovereign of any port to which she comes. And the persons in such a vessel likewise must obey the laws and regulations of the port. Such jurisdiction is discretionary. Once a foreign vessel passes out of territorial waters, she owes no further duty to the place which she has left, unless she is hotly pursued. But her conduct on the high seas or in foreign ports may subject her to penalties on returning on a subsequent visit.

In the words of Chief Justice Marshal of the United States Supreme Court "it would be obviously inconvenient and dangerous to society and would subject the laws to continual infraction, and the government to degradation, if such (alien) individuals or merchants (trading in ships) did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country."^7e

All foreign merchant ships and persons thereon fall under the jurisdiction of a coastal State as they enter its waters. Subject to the right of "innocent passage", the coastal State is free to exercise jurisdiction over such ships in respect of matters the consequences of which extend beyond the ships. Such ships are subject to the local jurisdiction in criminal, civil and administrative matters. This jurisdiction is, however, assumed only when, in the opinion of the local authorities, the peace or tranquillity of the port is disturbed, when strangers to the vessel are involved or when the local authorities are appealed to. Questions which affect only the internal order and economy of the ship are generally left to the authorities of the flag State. Coastal States are entitled to assume jurisdiction in respect of maritime claims against foreign merchant ships lying in their waters. There ships are liable to be arrested and detained for the enforcement of maritime claims. The courts of the country in which a foreign ship has been arrested may determine the cases according to merits, provided they are empowered to do so by the domestic law of the country or in any of the cases recognised by the International Convention relating to the Arrest of Seagoing Ships, Brussels, 1952. The maritime claims in respect of which the power of arrest is recognised in law include claims relating to damage caused by any ship either in collision or otherwise; claims relating to carriage of goods in any ship whether by charterparty or otherwise, loss of or damage to goods etc. These principles of international law, as generally recognised by nations, leave no doubt that, subject to the local laws regulating the competence of courts, all foreign ships lying within the waters of a State, including waters in ports, harbour, roadsteads, and the territorial waters, subject themselves to the jurisdiction of the local authorities in respect of maritime claims and they are liable to be arrested for the enforcement of such claims.

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. In this connection, reference may also be made to the Indian Ports Act, 1908 and the Major Port Trusts Act, 1963 concerning the administration of the port and the jurisdiction over ships in port, the Customs Act, 1962 containing various regulatory measures affecting ships, goods and persons in connection with importation or exportation of goods, as well as the provisions governing employment of labour. The Indian Bills of Lading Act, 1856 emphasis the negotiable and other characteristics of a bill of lading. The Carriage of Goods by Sea Act, 1925, contains the Hague Rules regulating the respective rights and liabilities of the parties to a contract governed by bills of lading or similar documents of title for carriage of goods by sea "from any port in India to any other port whether in India or outside India". The Merchant Shipping Act embodies rules regarding registration of Indian ships; transfers or mortgages of ships or shares; national character and flag; employment of seamen; safety, nuclear ships; collisions; accidents at sea and liability; limitation of liability; navigation; prevention of pollution; investigation and enquiries; wreck and salvage; coasting trade; sailing vessels; penalities and procedure, etc. Many of these provisions have been adopted from rules formulated by various international conventions.

It is true that Indian statutes lag behind the development of international law in comparision to contemporaneous statutes in England and other maritime countries. Although the Hague Rules are embodied in the Carriage of Goods by Sea Act, 1925, India never became a party to the International Convention laying down those rules (International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, Brussels 1924). The Carriage of Goods of Sea Act, 1925 merely followed the (United Kingdom) Carriage of Goods by Sea Act, 1924. The United Kingdom repealed the Carriage of Goods by Sea Act, 1924 with a view to incorporating the Visby Rules adopted by the Brussels Protocal of 1968. The Hague-Visby Rules were accordingly adopted by the Carriage of Goods by Sea Act, 1971 (United Kingdom). Indian Legislation has not, however, progressed, notwithstanding the Brussels Protocol of 1968 adopting the Visby Rules or the United Nations Convention on the Carriage of Goods by Sea, 1978 adopting the Hamburg Rules. The Hamburg Rules prescribe the minimum liabilities of the carrier far more justly and equitably than the Hague Rules so as to correct the tilt in the latter in favour of the carriers. The Hamburg Rules are acclaimed to be a great improvement on the Hague Rules and far more beneficial from the point of view of the cargo owners. India has also not adopted the International Convention relating to the Arrest of Sea-going Ships, Brussels, 1952. Nor has India adopted the Brussels Conventions of 1952 on civil and penal jurisdiction in matters of collision; nor the Brussels Conventions of 1926 and 1967 relating to maritime liens and mortgages. India seems to be lagging behind many other countries in ratifying and adopting the beneficial provisions of various conventions intended to facilitate international trade. Although these conventions have not been adopted by legislation, the principles incorporated in the conventions are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.

It is important to remember that the Brussels Convention on Arrest of Ships merely restricts or regulates the power of the coastal States and is not intended to confer power which they did not otherwise have as sovereign States. "Arrest" to which the convention refers is detention of a ship to secure a maritime claim, and not seizure of a ship in execution or satisfaction of judgment.

All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law. The power to arrest a foreign vessel, while in the waters of a coastal State, in respect of a maritime claim, wherever arising, is a demonstrable manifestation and an essential attribute of territorial sovereignty. This power is recognised by several international conventions. These conventions contain the unified rules of law drawn from different legal systems. Although many of these conventions have yet to be ratified by India, they embody principles of law recognised by the generality of maritime States, and can therefore be regarded as part of our common law.

The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.

Mareva injunction

There being no provision in the law of India equivalent to section 45 of the Supreme Court of Judicature (Consolidation) Act 1925, a Mareva injunction, to the extent that it may be regarded as an alternative, albeit far narrower in concept, form of proceeding to an action in rem in order to make a ship lying within the jurisdiction available as prejudgment security, is not allowed yet in the Indian Courts in the exercise of their Admiralty Jurisdiction but is not available of their ordinary original civil jurisdiction.

"Attachment" before judgment

"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, provided the court is convinced on affidavit or otherwise that the ship is the only asset of the defendant within the jurisdiction and is about to be disposed of or removed out of the limits of the court’s jurisdiction with intent to defeat, obstruct or delay the execution of any decree that may be passed against the defendant.

Specific jurisdiction

The three Indian Courts of Admiralty were courts of specific jurisdiction (prior to the decision of m.v. Elizabeth) and, if a controversy does not come within their specific jurisdiction, they cannot entertain it and, in that respect, are unlike the courts of residuary jurisdiction such as common law courts or, in India, courts of ordinary original civil jurisdiction.⁸ The Admiralty jurisdiction of each of these courts is concurrent and territorially extends over the coast line of India.

Jurisdiction in Admiralty

The Indian Courts possessing Admiralty jurisdiction have jurisdiction over the following claims and to hear and determine any questions with regard thereto.

(a) Any claim for the building, equipping or repairing of any ship

"(a) Any claim for the building, equipping or repairing of any ship if at the time of the institution of the action the ship or the proceeds thereof are under arrest of the court."⁹

Where the facts pleaded in the plaint read with the particulars set forth in the annexures conclusively show that the repairs done and material supplied were prima facie "necessaries", the action will fall within the purview of section 5 (see (b), infra) of the Act and not section 4.¹⁰

(b) Any claim for necessaries supplied to any ship

"(b) Any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs and on the high seas unless it is shown to the satisfaction of the court that at the time of the institution of the action any owner or part-owner of the ship is domiciled in India."¹¹

(c) Any claim by the owner or consignee or assignee of any bill of lading of any goods for damage

"(c) 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, unless it is shown to the satisfaction of the court that at the time of the institution of the action any owner or part-owner of the ship is domiciled in India."¹²

This section has been construed liberally by the Indian High Courts which have held that, in order to attract the jurisdiction, it is not necessary that the goods should be imported into India or that their carriage should be for delivery in India. It is sufficient if the goods are carried into an Indian port and there is a breach of duty or contract on the part of the master or owner of the ship.¹³ An unpaid vendor exercising his right of stoppage in transit can call upon the master of the ship to deliver the goods and refusal on the part of the latter would constitute a breach of duty so as to attract the jurisdiction.¹⁴

The section has been held to apply not only to cases of damage, actual or constructive, done to the goods in the strict sense but also to cases of non-delivery or delay in delivery. Unless damage, actual or constructive, is done to the goods or in other words, unless the goods carried or to be carried are affected in some manner, the section can have no application. A cause of action based on false statements or misstatements made in a bill of lading is not a cause of action founded on a breach of contract of carriage or breach of duty in relation to carriage within the meaning of the section. "Carriage of goods", in the context of the section, means carriage of goods actually shipped and not hypothetical goods which ought to have been shipped but were never shipped. There can be no breach of contract of carriage or breach of duty in relation to carriage within the meaning of the section before the goods are delivered to the carrier.

The object of the section is not to provide a remedy for something done which is not connected with carriage or delivery of actual goods; a claim for issuing an antedated bill of lading or a false bill of lading, or a bill of lading in contravention of the Hague Rules is a claim arising out of a bill of lading but is not a claim within the scope of the section because, without anything more, such a claim is not in respect of damage done to the goods nor does it relate to the goods carried by the ship¹⁵; a claim based on the wrongful exercise of lien on cargo by a shipowner is an Admiralty cause within this section.¹⁶

(d) Any claim for damage done by any ship

"(d) Any claim for damage done by any ship."¹⁷

The High Court on its Admiralty side has exclusive jurisdiction in respect of damage caused by a ship to property on the high seas¹⁸; a suit for damages for loss of life or personal injuries as a result of a collision on the high seas falls within the section by virtue of the Maritime Conventions Act, 1911.¹⁹ Quaere: The Maritime Conventions Act, 1911, in so far as it extended to and operated as part of the law of India, was repealed by Section 46(2) of the Merchant Shipping Act, 1958, with effect from 1 January, 1961²⁰ and whether from such date such a claim for damages, for loss of life or personal injuries will fall within the section may require to be considered.

(e) Any claim for damage received by any ship or sea-going vessel

"(e) Any claim for damage received by any ship or sea-going vessel whether such a ship or vessel may have been in India or upon the high seas when the damage was received."²¹

(f) Any claim for the possession or ownership of a ship

"(f) any claim for the possession or ownership of a ship or to the owner-ship of any share therein."²²

(g) Any claim in the nature of salvage services

"(g) Any claim in the nature of salvage services rendered to a ship, whether such ship or vessel may have been within India or the high seas at the time when its services were rendered in respect of which the claim is made."²³

Section 402 of the (Indian) Merchant Shipping Act 1958 provided as follows :

"(1) Where services are rendered :-

(a) wholly or in part within the territorial waters of India in saving life from any vessel or elsewhere in saving life from a vessel registered in India; or

(b) in assisting a vessel or saving the cargo or equipment of a vessel which is wrecked, stranded or in distress at any place on or near the coats of India; or

(c) by any person other than the receiver of wreck in saving any wreck; there shall be payable to the salvor by the owner of the vessel cargo, equipment or wreck, a reasonable sum for salvage having regard to all the circumstances of the case.

(2) Salvage in respect of the preservation of life when payable by the owner of the vessel shall be payable in priority to all other claims for salvage.

(3) Where salvage services are rendered by or on behalf of the Government or by a vessel of the Indian Navy or the commander or crew of any such vessel, the Government, the commander or the crew, as the case may be, shall be entitled to salvage and shall have the same rights and remedies in respect of those services as any other salvor.

(4) Any dispute arising concerning the amount due under this section shall be determined upon application made by either of the disputing parties -

(a) to a Judicial Magistrate of the first class or Metropolitan Magistrate as the case may be where the amount claimed does not exceed ten thousand rupees; or

(b) to the High Court, where the amount claimed exceeds ten thousand rupees.

(5) Where there is any dispute as to the persons who are entitled to the salvage amount under this section, the Judicial Magistrate of the first class or the Metropolitan Magistrate or the High Court as the case may be shall decide the dispute and if there are more persons than one entitled to such amount, such Magistrate or the High Court shall apportion the amount thereof among such persons.

(6) The costs of and incidental to all proceedings before a Judicial Magistrate of the first class or Metropolitan Magistrate or the High Court under this section shall be in the discretion of such Magistrate or the High Court, and such Magistrate or the High Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purpose aforesaid."

The section, it will be seen, provides that any dispute as to salvage shall be determined by a magistrate where the amount does not exceed Rs.10,000 and by the High Court where the amount exceeds that sum. For the purpose of the said Act the term "High Court" has been defined by section 3(15) of the said Act in a relation to a vessel to mean the High Court 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; or

(c) the cause of action wholly or in part arises.

One effect of the said section is that all the High Courts of littoral states will have jurisdiction to entertain a cause relating to salvage and not just the High Courts having Admiralty Jurisdiction. That part it is arguable that the Admiralty Jurisdiction exercised by the High Courts in relation to such a cause has been replaced and substituted by or must yield to the special jurisdiction conferred by the Act and that consequently a suit on such a cause is not maintainable in the Admiralty jurisdiction of the High Courts.

(h) Any claim by a master or crew for wages, etc.

"(h) Any claim by a master or crew for wages or for any money or property which under any statutory provisions is recoverable as such."²⁴

(i) Any claim by a master in respect of disbursements

"(i) Any claim by a master in respect of disbursements made on account of a ship."²⁵

(j) Any claim arising out of bottomry

"(j) Any claim arising out of bottomry."

To the best of the writer’s knowledge, the last case of bottomry in the Bombay High Court, relating to the m.v. Kali Elpis was in or about 1967 and this part of the Admiralty jurisdiction can be regarded as obsolete in practice.

(k) Any claim in the nature of towage

"(k) any claim in the nature of towage supplied to any foreign ship or sea-going vessel whether such ship or vessel may have been within India or upon the high seas at the time services were rendered in respect of which the claim is made."²⁶

(l) A claim and cause of action in respect of any mortgage

"(l) Whenever any ship shall be under arrest by the court or the proceeds of any ship having been so arrested shall have been brought into and be in the registry of the said court a claim and cause of action of any person in respect of any mortgage of such ship."²⁷

(m) Any claim in respect of any registered mortgage

"(m) Any claim in respect of any mortgage duly registered according to the provisions of the (Indian) Merchant Shipping Act, 1958, whether the ship or the proceeds thereof be under arrest of the Court or not."²⁸

The reader is referred to section 51 of the Merchant Shipping Act 1958, regarding the rights of a registered mortgagee of a ship, which is as follows :

"(1) A registered mortgagee of a ship or share shall be entitled to recover the amount due under the mortgage in the High Court, and when passing a decree or thereafter the High Court may direct that the mortgaged ship or share be sold in execution of the decree.

(2) Subject to the provisions of Sub-s. (1), no such mortgagee shall merely by virtue of the mortgage be entitled to sell or otherwise dispose of the mortgaged ship or share."

The "High Court" referred to in the section by definition in the Act means the High Court within the limits of whose appellate jurisdiction (a) the port or registry of the ship is situate; or (b) the ship is for the time being; or (c) the cause of action wholly or in part arises. The High Court need not be one having Admiralty jurisdiction and the sale of the ship which the High Court may direct to be sold will not extinguish all claims to or liens on the ship so as to give the purchaser a free and clear title to the ship.

(n) Claims Relating to Cargo and contracts of Affreightment

(o) Forfeitures

·  · Maritime liens
For the claims under subparagraphs (a) (b) (c) (f) (k) (l) and (m) of paragraph above there is no maritime lien but only a right in rem. For those under (d) (e) (g) (h) (i) and (j) there is maritime lien. Though this point has not come up for consideration, under Indian rules of conflict of laws, a foreign maritime lien may not be recognised and enforced as such by the Indian courts even though the proper law of the claim accords it a maritime lien status, e.g. a preferred ship’s mortgage, necessaries, repairs, supplies, towage, use of drydock, etc., under United States law.

In the case of the owner’s bankruptcy before arresting the ship, a claimant who has no maritime lien may require to ascertain and consider the claims having maritime liens such as for wages, damage, salvage, etc., or for mortgage, ranking in priority over his claim which may take away the entire sale proceeds with little or no surplus left. Often, the arrest or even a threat to arrest a ship, already loaded with a perishable cargo or of a time-chartered ship or one having a charter commitment, has the effect of inducing the owners to settle a claim though not maintainable in Admiralty. However, in the case of a claim clearly outside their Admiralty jurisdiction, the chances are that the courts will reject in limine an application for arrest.

Arrest and Release of Ship
Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the course of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are 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 of or damage to goods and the like. They are liable to be detained or confiscated by the authorities of foreign States for violating their customs, regulations, safely measures, rules of the road, health regulations, and for other causes. The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship travelling from port to port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the plaintiff without any security.

A ship may be arrested (i) to acquire jurisdiction; or (ii) to obtain security for satisfaction of the claim when decreed; or (iii) in execution of a decree. In the first two cases, the court has the discretion to insist upon security being furnished by the plaintiff to compensate the defendant in the event of it being found that the arrest was wrongful and was sought and obtained maliciously or in bad faith. The claimant is liable in damages for wrongful arrest. The practice of insisting upon security being furnished by the party seeking arrest of the ship is followed in the United States, Japan and other countries. The reason for the rule is that a wrongful arrest can cause irreparable loss and damages to the shipowner; and he should in that event be compensated by the arresting party.

The attachment by arrest is only provisional and its purpose is merely to detain the ship until the matter has been finally settled by a competent court. The attachment of the vessel brings it under the custody of the marshal or any other authorised officer. Any inference with his custody is treated as a contempt of the court which has ordered the arrest. But the Marshal’s right under the attachment order is not one of possession, but only of custody. Although the custody of the vessel has passed from the defendant to the marshal/sheriff, all the possessory rights which previously existed continue to exist, including all the remedies which are based on possession. The warrant usually contains admonition to all persons interested to appear before the court on a particular day and show cause why the property should not be condemned and sold to satisfy the claim of the plaintiff.

The attachment being only a method of safeguarding the interest of the plaintiff by providing him with a security, it is not likely to be ordered if the defendant or his lawyer agrees to "accept service and to put in bail or to pay money into court in lieu of bail".

The service of warrant is usually effected by affixing it on the main mast or single mast of the ship. A ship which has been arrested under an order of attachment may be released by the court if sufficient bail is put in to cover the claim of the plaintiff as well as the costs of the action. The sureties are liable for the amount entered in the bail bond.

If the ship or cargo under arrest before judgment has not been released by the defendant by putting in sufficient bail, and if the property is found deteriorating, the court has the power to order the sale of the property after notice has been duly issued to the parties interested.

If the plaintiff has finally obtained a decree of condemnation and sale of the ship, the court will issue an order to the competent officer commanding him to sell the property, in execution of the decree, and to bring the proceeds into court. Thereupon the officer shall issue proper notice and arrange for the sale of the property by auction. The proceeds of the sale are paid into the registry of the court and they shall be disposed of by the court according to law.

A personal action may be brought against the defendant if he is either present in the country or submits to jurisdiction. If the foreign owner of an arrested ship appears before the court and deposits security as bail for the release of his ship against which proceedings in rem have been instituted, he submits himself to jurisdiction.

An action in rem is directed against the ship itself to satisfy the claim of the plaintiff out of the res. The ship is for this purpose treated as a person . Such an action may constitute an inducement to the owner to submit to the jurisdiction of the court, thereby making himself liable to be proceeded against by the plaintiff in personam. It is however, imperative in an action in rem that the ship should be within jurisdiction at the time the proceedings are started. A decree of the court in such an action binds not merely the parties to the writ but everybody in the world who might dispute the plaintiff’s claim.

It is by means of an action in rem that the arrest of a particular ship is secured by the plaintiff. He does not sue the owner directly and by name; but the owner or any one interested in the proceedings may appear and defend. The writ is issued to "owner and parties interested in the property proceeded against." The proceedings can be started in England or in the United States in respect of a maritime lien, and in England in respect of a statutory right in rem. A maritime lien is a privileged claim against the ship or a right to a part of the property in the ship, and it "travels" with the ship. Because the ship has to "pay for the wrong it has done", it can be compelled to do so by a forced sale. In addition to maritime liens, a ship is liable to be arrested in England in enforcement of statutory rights in rem (Supreme Court Act, 1981). If the owner does not submit to the jurisdiction and appear before the court to put in bail and release the ship, it is liable to be condemned and sold to satisfy the claims against her. If, however, the owner submits to jurisdiction and obtains the release of the ship by depositing security, he becomes personally liable to be proceeded against in personam in execution of the judgment if the amount decreed exceeds the amount of the bail. The arrest of the foreign ship by means of an action in rem is thus a means of assuming jurisdiction by the competent court.

The admiralty action in rem, as practised in England or in the United States, is unknown to the civil law. In countries following the civil law, all proceedings are initiated by actions in personam. The President of the Court having competence in the matter has the power to order an attachment of the ship if he is convinced that the plaintiff is likely to lose his security unless the ship detained within jurisdiction. His hands are not fettered by the technicalities of an action in rem and the scope of the proceedings are not limited to maritime liens or claims. According to the French law, arrest of a ship is allowed even in respect of non-maritime claims and whether or not the claimant is a secured or unsecured creditor. A vessel may be arrested either for the purpose of immobilising the vessel as security (Saisie Conservatoire) or in execution of judgment (Saisie Execution) whether or not the claim has any relation to the vessel. Arrest of the vessel has the advantage of forcing the owner to furnish security to guarantee satisfaction of any decree that may be passed against him. On furnishing sufficient security with the Court, he is usually allowed to secure the release of the vessel. Maritime law is part of the general law of France and other "civil law countries", and is dealt with by the ordinary courts or tribunals. The presence of any property belonging to the defendant within the territorial jurisdiction confers jurisdiction on the French Court.

The real purpose of arrest in both the English and the Civil Law systems is to obtain security as a guarantee for satisfaction of the decree, although arrest in England is the basis of assumption of jurisdiction, unless the owner has submitted to jurisdiction. In any event, once the arrest is made and the owner has entered appearance, the proceedings continue in personam. All actions in the civil law- whether maritime or not- are in personam, and arrest of a vessel is permitted even in respect of non-maritime claims, and the vessel is treated as any other property of the owner, and its very presence within jurisdiction is sufficient to clothe the competent tribunal with jurisdiction over the owner in respect of any claim. Admiralty actions in England, on the other hand, whether in rem or in personam, are confined to well defined maritime liens or claims and directed against the res (ship, cargo and freight) which is the subject-matter of the dispute or any other ship in the same beneficial ownerships as the res in question.

Where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise procedural rules by analogy and expediency. Action in rem, as seen above, were resorted to by courts as a devise to overcome the difficulty of personal service on the defendant by compelling him to enter appearance and accept service of summons with a view to furnishing security for the release of the res; or, in his absence, proceed against the res itself , by attributing to it a personality for the purpose of entering a decree and executing the same by sale of the res. This is a practical procedural device developed by the courts with a view to rendering justice in accordance with substantive law not only in cases of collision and salvage, but also in cases of other maritime liens and claims arising by reason of breach of contract for the hire of vessels or the carriage of goods or other maritime transactions, or tortious acts, such as conversion or negligence occuring in connection with the carriage of goods. Where substantive law demands justice for the party aggrieved, and the statute has not provided the remedy, it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice. To the courts of the "civil law countries" in Europe and other places, like problems seldom arise, for all persons and things within their territories (including their waters) fall within their competence to deal with. They do not have to draw any distinction between an action in rem and an action in personam.

It is likewise within the competence of the appropriate Indian Courts to deal, in accordance with the general principles of maritime law and the applicable provisions of statutory law, with all persons and things found within their jurisdiction. The power of the court is plenary and unlimited unless it is expressely or by necessary implication curtailed. Absent such curtailment of jurisdiction, all remedies which are available to the courts to administer justice are available to a claimant against a foreign ship and its owner found within the jurisdiction of the concerned High Court. This power of the court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment.

The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of ths Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own power.

Merchant Shipping Act 1958, s. 443,444
The Merchant Shipping Act, 1958 contains various provisions to enforce territorial jurisdiction. The Act being essentially regulatory in character, the various authorities, tribunals and Courts entrusted with the administration and enforcement of its provisions are specifically stated. The High Court is defined under S.3(15) as follows:

"3(15). "High Court", in relation to a vessel, means the High Court within the limits of whose appellate jurisdiction-

a.                                

b.                              the port of registry of the vessel is situate;

c.                               the vessel is for the time being; or

d.                              the cause of action wholly or in part arises;"

·  ·  Accordingly, a foreign ship falls within the jurisdiction of the High Court where the vessel happens to be at the relevant time i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of action wholly or in part arises.

The detention of a foreign ship is authorised in terms of Ss. 443 and 444. In view of their vital significance in the enforcement of maritime jurisdiction, we shall read these two sections in full. Section 443 defines the character and scope of the power of detention:

"S.443. Power to detain foreign ship that has occasioned damage-

(1) Whenever any damage has in any part of the world been caused to property belonging to the Government or to any citizen of India or a company by a ship other than an Indian Ship and at any time thereafter that ship is found within Indian jurisdiction, the High Court may, upon the application of any person who alleges that the damage was caused by the misconduct or want of skill of the master or any member of the crew of the ship, issue an order directed to any proper officer or other officer named in the order requiring him to detain the ship until such time as the owner, master or consignee thereof has satisfied any claim in respect of the damage or has given security to the satisfaction of the High Court to pay all costs and damages that may be awarded in any legal proceedings that may be instituted in respect of the damage, and any officer to whom the order is directed shall detain the ship accordingly.

(2) Whenever it appears that before an application can be made under this section, the ship in respect of which the application is to be made will have departed from India or the territorial waters of India, any proper officer may detain the ship for such time as to allow the application to be made and the result thereof to be communicated to the officer detaining the ship, and that officer shall not be liable for any costs or damages in respect of the detention unless the same is proved to have been made without reasonable grounds.

(3) In any legal proceedings in relation to any such damage aforesaid, the person giving security shall be made a defendant and shall for the purpose of such proceedings be deemed to be the owner of the ship that has occasioned the damage."

The power of enforcement of an order of detention of a foreign ship is dealt with by S.444.

"S.444. Power to enforce detention of ship.

1.                               

2.      Where under this Act a ship is authorised or ordered to be detained, any commissioned officer of the Indian Navy or any port officer, pilot, harbour master, conservation of port or customs collector may detain the ship.

3.     If any ship after detention, or after service on the master of any notice of, or order for, such detention proceeds to sea before she is released by competent authority, the master of the ship shall be guilty of an offence under this sub-section.

4.      When a ship so proceeding to sea takes to sea, when on board thereof in the execution of his duty any person authorised under this Act to detain or survey the ship, the owner, master or agent of such ship shall each be liable to pay all expenses of, and incidential to, such person being so taken to sea and shall also be guilty of an offence under this sub-section.

5.     When any owner, or master or agent is convicted of an offence under sub-sec (3), the convicting Magistrate may inquire into and determine the amount payable on account of expenses by such owner, master or agent under that sub-section and may direct that the same shall be recovered from him in the manner provided for the recovery of fines."

·  ·  These provisions relate to detention by reason of damage caused in any part of the world by a foreign ship to property belonging to the Government of India or to an Indian citizen or company. The sections are wide in terms and the expansion "damage" is not necessarily confined to physical damage. Ordinarily damage is caused by physical damage. Ordinarily damage is caused by physical contact of the ship; such as in collision. But damage can also be caused to property by breach of contract or acts of commission or omission on the part of the carrier or his agents or servants by reason of the negligent operation and management of the vessel, as, for example, when cargo is damaged by exposure to weather or by negligent stowage; or, by the misconduct of those in charge of the ship, like when cargo is disposed of contary to the instructions of the owner or by reason of theft and other misdeeds. In all these cases, damage arises by reason of loss caused by what is done by the ship or by the breach, negligence or misdeeds of those in charge of the ship. It must however be noticed that the expression "damage done by any ship" has been construed by the English Courts as not to apply to claims against the carrying ship for damage done to cargo. In the Victoria, (1887) 12 PD 105, the Court so construed, "S.7 of the Admiralty Court Act, 1861 (24 Victoriaec.10)- The High Court of Admiralty shall have jurisdiction over any Claim for Damage done by any ship". It has been held to apply only to physical damage done by a ship by reason of its coming into contact with something. See The Vera Cruz, (1884) 9 PD 96; Currie –v- M. Knight, (1897) AC 97 and the Jade, (1976) 1 All ER 920. In view of the specific provisions of the English statutes of 1920, 1925, 1956 and 1981, it was unnecessary for the English Courts to construe the expression broadly so as to include cargo claims and the like. The last two enactments contain an exhaustive list of maritime claims and questions in regard to which the High Court can exercise jurisdiction over any merchant ship by arresting it as it enters the waters of Britain. The power, as already noticed, is available, whatever be the nationality of the ship or its owner or the domicile or place of residence or business of the owner, or wherever the cause of action has arisen. About the words "damage done by a ship" in S.7 of the Admiralty Court Act, 1861 and the decision in the Victoria (1887) 12 PD 105 to the effect that the section had no application to claims against the carrying ship for damage to cargo, the following observation significantly appears in Halsbury’s laws of England, 4^th ed. Vol.I (i), para 319 No. 12.

"…..but this question is academic in the light of the fact that jurisdiction in respect of claims for damage to cargo carried in a ship is now expressly given by the Supreme Court Act, 1981, S. 20(2)(g)".

In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is no reason why the words "damage caused by a ship" appearing in S.443 of the Merchant Shipping Act, 1958 should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to include all maritime questions or claims. If goods or other property are lost or damaged, whether by physical contact or otherwise, by reason of unauthorised acts or negligent conduct on the part of the shipowner or his agents or servants, wherever the cause of action has arisen, or wherever the ship is registered, or wherever the owner has his residence or domicile or place of business, such a ship, at the request of the person aggrieved, is liable to be detained when found within Indian jurisdiction by recourse to Ss. 443 and 444 of the Merchant Shipping Act, 1958 read with the appropriate rules of practice and procedure of the High Court. These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law, apart from statutes, and for the enforcement of which a party aggrieved has a right to invoke the inherent jurisdiction of a superior court.

The Indian Carriage of Goods by Sea Act, 1925 applies to carriage of goods by sea under bills of lading or similar documents of title from a port in India to any other port whether in or outside India. The Act imposes certain responsibilities and liabilities and confers certain rights and immunities upon the carrier (Arts. III & IV). In respect of a claim relating to an outward cargo, the cargo owner has a right to bring a suit against a shipowner subject to the period of limitation specified under the Act, namely one year (Art.III (6)). The substantial rights recognised by the statute are of equal application to foreign merchant ships as they are to to Indian merchant ships. The Carriage of Goods by Sea Act does not, however, contain any provision for the enforcement of the right by arresting the foreign vessel found in Indian waters. In the absence of arrest, no effective remedy against a foreign owner may be available to the cargo owner. The same is the position with regard to claims relating to cargo carried under a charterparty. It is, therefore, necessary that he should have recourse to the remedy available to him under the Merchant Shipping Act. That Act, as stated earlier, confers a right to arrest a vessel in respect of any damage caused by a ship. If that expression, in the absence of any other more appropriate statute, is understood sufficiently broadly as an enabling provision to effectively assume jurisdiction over a foreign ship for the enforcement of a substantive right recognised by law, there would be no difficulty in finding a remedy for the right the law has conferred on the cargo owner.

The Merchant Shipping Act empowers the concerned High Court to arrest a ship in respect of a substantive right. A right conferred by the Indian Carriage of Goods by Sea Act, 1925 in respect of outward cargo is one of those rights which can be enforced by arrest and detention of the foreign ship in order to found jurisdiction over the vessel and its owners, just as it can be done in respect of inward cargo by reason of the substantive rights conferred by the Admiralty Court Act, 1861 read with the Colonial Courts of Admiralty Act, 1890, and other rules of law. The same principle must hold good for cariage under a charterparty. These and other laws, such as the law of contract, tort, crime, mortgage, marine insurance, customs, port operations, etc., and the Civil and Criminal Procedure Codes as well as the relevant rules of court regulating procedure and practice together constitute the body of substantive and procedural laws governing claims relating to inward and outward cargo, and such claims are enforceable against foreign ships by recourse to arrest and detention when found within jurisdiction . Viewed in this light, and by this reasoning, the Andhra Pradesh High Court, as a successor to the Madras High Court, does not lack admiralty jurisdiction in respect of claims relating to outward cargo.

The admiralty jurisdiction of the High Court is dependent on the presence of the foreign ship in Indian waters and founded on the arrest of that ship. This jurisdiction can be assumed by the concerned High Court, whether or not the defendant resides or carries on business, or the cause of action arose wholly or in part, within the local limits of its jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of the High Court, and the owner of the ship has entered appearance and furnished security to the satisfaction of the High Court for the release of the ship, the proceedings continue as a personal action.

The Merchant Shipping Act, 1958 provides a detailed Code of substantive and procedural rules regulating shipping as an industry and the control exercised over it by the competent authorities in confirmity with various international conventions which have, under the auspices of International Organisations such as the IMO or the ILO, unified and developed various aspects of shipping laws. Conventions regulating sea traffic, safety of life at sea, employment of seamen, wages, hours of work, social security, etc. are cases in point. Likewise, the substantive rules concerning transport of goods are contained in the Indian Bills of Lading Act, 1856 and the Indian Carriage of Goods Act, 1925. But the jurisdictional questions concerning arrest of foreign ships for enforcement of claims against the shipowner as a transporter of goods, which in England are regulated by the Supreme Court Act, 1981, are in many respects left unregulated by Indian legislation. While the provisions of various international conventions concerning arrest of ships, civil and penal jurisdiction in matters of collision, maritime liens and mortgage etc. have been incorporated into the municipal laws of many maritime States, India, as stated above, lags behind them in adopting these unified rules. By reason of this void, doubts about jurisdiction often arise, as in the present case, when substantive rights, such as those recognised by the Carriage of Goods by Sea Act, are sought to be enforced. The remedy lies, apart from enlightened judicial construction, in prompt legislative action to codify and clarify the admiralty laws of this country. This requires thorough research and investigation by a team of experts in admiralty law, comparative law, and public and private international law. Any attempt to codify without such investigation is bound to be futile.

No Indian statute defines a maritime claim. The Supreme Court Act, 1981 of England has catalogued maritime claims with reference to the unified rules adopted by the Brussels Convention of 1952 on the Arrest of Seagoing Ships. Although India has not adopted the various Brussels Conventions, the provisions of these Conventions are the result of international unification and development of the maritime laws of the world, and can, therefore, be regarded as the international common law or transnational law rooted in and evolved out of the general principles of national laws, which, in the absence of specific statutory provisions, can be adopted and adapted by courts to supplement and complement national statutes on the subject. In the absence of a general maritime code, these principles aid the Courts in filling up the lacunae in the Merchant Shipping Act and other enactments concerning shipping. "Procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities."

There have been a few occasions in Bombay of the provisions for temporary detention of a foreign ship under subsection (2) of the said section having been availed of and the shipowners having quickly settled the claim. However, the reason why attention is drawn to the section here is because the term "High Court" therein in relation to a vessel is defined by the Act to mean the High Court within the limits of whose appellate jurisdiction the vessel is for the time being. This would have the effect of conferring on the High Courts of the littoral states of India jurisdiction in respect of claims covered by the said section. As already stated, the provisions of the section as a whole have not been widely invoked perhaps because the existence of that section is the said Act may have been missed by those connected with maritime litigation.

Advisability of litigation
A maritime claimant, before deciding to sue in Admiralty in India, would do well to consider whether it would be advisable to embark upon the litigation at all. In the case of claims under contractual documents, such as bills of lading or charter-parties which contain a provision for their settlement by arbitration, and the New York Convention applies, the court under the provisions of Arbitration and Conciliation Act 1996, giving effect to the said Convention, shall on application made, on behalf of the owner of the ship sued in rem and arrested, after entering appearance but before taking any step in the suit, stay the suit. There have, however, been no cases of the said Act having been invoked in an action in rem and therefore it is not possible to state definitively in such a case that the court staying the suit will also supersede the warrant of arrest and order the release of the arrested ship or the bail or security which may have been given for its release from the arrest. If it did the plaintiff would be left with no security for his claim.

Priorities
The question of priorities is another factor to be considered before instituting the action for arrest. The Indian courts will decide questions of priority on the same principles as the Admiralty Court in England and a contractual claimant, e.g. with a low priority, may not be benefited by suing or arresting the ship in India if there be prior claimants who will take away the whole of the sale proceeds of the ship. However, if an appearance were to be entered and bail or security for his claim given and the ship released and it sails away before it is arrested by other claimants, his arrest will not be in vain.

In respect of claims arising out of collision or salvage or towage and if the vessel sued is entered with a P. & I. Club, it is usual to obtain from the shipowner an agreement to submit to the Admiralty jurisdiction of the High Court in England, along with an undertaking to give bail or other security and, as the claim will involve a consideration of the technicalities of navigation of ships, the claimant may find it advantageous to accede to such an agreement and undertaking and withdraw. It may however be noted that under section 140 of the Code of Civil Procedure, 1908 in any Admiralty cause of salvage, towage or collision, the court whether it is exercising its original or its appellate jurisdiction may, if it thinks fit, and shall upon request of either party to such cause, summon to its assistance two competent assessors who shall attend the hearing and assist the court.

Applicable Law
As stated above, the three High Courts at Calcutta, Madras and Bombay were invested with the same Admiralty jurisdiction (now other High Courts also having Admiralty Jurisdiction) as was invested in the Court of Admiralty in England in the year 1890 and, as will be observed from the cases cited supra, they have referred to, relied on and have been guided by the decisions of the England Court for not only ascertaining the Admiralty jurisdiction and practice of the High Court in England in the year 1980 but also on questions of interpretation of the various sections of the Admiralty Court Act 1840 and the Admiralty Court Act 1861, supra, of the British Parliament which, it will have been observed, continue to be the law of India notwithstanding their repeal in England. The said decisions will continue to be relevant as will also the opinions contained in such maritime law classics as William & Bruce’s Jurisdiction and Practice of the English Courts of Admiralty: Actions and Appeals; Roscoe’s The High Court of Admiralty; Abbot’s Law Relating to Merchant Ships and Sea-men; Halsbury’s Laws of England (2nd edn.), Vol. I; as also Admiralty Practice by McGuffie, Fugeman & Gray (Vol. 1; British Shipping Laws).

Though not binding on them, the dicta in some of the recent English cases in Admiralty and in some of the countries of the Common wealth, principally Australia and Canada, may be relied upon as authorities of high persuasive value in deciding a point of practice though not to add to the Admiralty causes presently taken cognisance of.

Time Bar
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, towage. In the 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 extinguishment of the cause of action, itself may apply. The limitation period under the Limitation Act 1963 is absolute and cannot be extended by agreement nor can the court enlarge the same. The Act does contain provisions for extension of time, exclusion of time for filing suit in certain cases, acknowledgement of liability and/or payment on account before expiry of the initial limitation period, so as to afford a fresh limitation period, and the Act may be referred to for ascertaining the operation of the said provisions.

There is no provision in the Act equivalent to section 8 of the repealed Maritime Conventions Act 1911, supra, and in view of the precise limitation periods specified in the Limitation Act, 1963, the doctrine of laches may not prevail.

Procedure
The procedure for commencing an action on a claim in the Admiralty jurisdiction of the three High Courts is totally unlike that which prevailed in England in the year 1890, or which now prevails in England and in many other countries, and is an ordinary procedure. 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. The plaint must be signed and verified by the plaintiff, if he be at individual, in the case of a firm by any one of its partners and if a corporation by a director, the secretary or other principal officer.

In the case of a foreign plaintiff it may be necessary for it to grant a power of attorney to a person, usually, at the place where the action is to be instituted, authorising that person to institute the action with incidental powers to sign and verify all pleadings, petitions, applications etc. A foreign firm is not recognised in India and in this case all its partners will have to be nominated as the plaintiffs and must execute the power of attorney. A power of attorney in a Common-wealth country may be executed before and authenticated by a notary public. In the case of other countries it is advisable that the signature of the notary public is legalised by an Indian consular officer. Alternatively, the power of attorney may be executed before an Indian consular officer under the provisions of section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.

The aforesaid requirement of signing and verification of the plaint has often operated to the disadvantage of foreign maritime claimants by making a quia timet action for arrest before departure of the ship impossible.

Security for costs and damages
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 as compensation in the event of a party affected sustaining prejudice by the arrest. There is, however, little risk of being condemned to pay damages to the owners of an arrested ship, even if the claim fails unless the arrest was manifestly a gross abuse of the court’s process which was instituted with malafide intention.

Admiralty Rules
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. The Rules also provide that the forms used in the Admiralty Division of the Supreme Court of England under the Rules of that court for the time being in force may be followed with such variations as the circumstances of each case may require.

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 followed by the words "together with its engines, boats, gear, tackle, apparel furniture and papers and everything belonging to it whether on board or ashore", and a statement as to its location. Some draftsmen include in the title "The Owners and other parties interested in the first defendant ship" as the second defendants. If the claim is under a contractual document, it is usual for a copy thereof and, if it be in a language other than English, a translation thereof to be annexed to the plaint as an exhibit and, in the case of a claim for repairs or necessaries, copies of the unpaid bills (In case of urgency, courts allow application for arrest on fax copy of the Power of Attorney/Letter of Authority; on Lodging number of the Suit; and also on clear photocopies of the documents). The court may at any time require that they be produced for its scrutiny when applying for arrest.

The Admiralty Rules of the High Courts require that in a suit for wages or for possession against a foreign ship, notice of the institution of the suit be given to the consul of the state to which the ship belongs, if there be one resident at those places and a copy of the notice be annexed to the affidavit leading to the warrant. The Rules of the High Court at Bombay require that such notice shall be given in a suit for necessaries also and that, if there is no such consul resident in Bombay, a statement of that fact be made in the affidavit leading to the warrant. The Rules of the High Courts relevant to filing of the various caveats are substantially similar.

Whereas the Rules of the High Courts require that before issuing the warrant of arrest the registrar of the court shall ascertain whether or not any caveat warrant has been entered, rule 941 of the Bombay Rules, inter alia, requires that a Certificate of the Prothonotary & Senior Master (i.e. the Admiralty Registrar of the Court), certifying that search has been made in the Caveat Warrant Book and that no caveat has been filed, be annexed to the affidavit leading to the warrant.

The Rules of all High Courts having Admiralty Jurisdiction require that the affidavit leading to the warrant shall state the nature of the claim in the suit and that it has not been satisfied.

The Rules of the Calcutta and Madras courts also require that in a suit for bottomry a copy of the bottomry bond and, if in a foreign language, also a copy of a notarial translation thereof certified to be correct shall be annexed to the affidavit and the original bond and the notarial translation thereof shall be produced for the inspection and perusal of the court’s registrar.

Application for arrest
Unless a caveat against issue of a warrant for arrest has been entered, an application for arrest of a ship proceeded against may be applied for at any time after instituting the suit and, in a situation where the departure of the ship from the port is imminent, may be entertained even before the registry has scrutinised and admitted the plaint to the court’s file.

The judge in chambers before whom the application is made may, in any case, allow the warrant of arrest to issue, though the affidavit leading to the warrant or the plaint may not contain all the required particulars and, in a suit for wages, may also waive the service of the notice to the consul of the state to which the ship belongs.

The application for arrest is normally moved ex parte. However, some judges in their anxiety to prevent a wrongful arrest are inclined to direct that the application be moved after notice to the master of the ship and there have been rare instances of a master, on getting wind of the proceedings, clandestinely weighing anchor and slipping out. The giving of such a notice is, however, often useful in that it may produce a speedy settlement of the claim out of court of the furnishing of security or payment of money into court, alongwith an undertaking by an advocate appointed for the defendant ship to accept service and will thus save the plaintiff the poundage payable to the Sheriff, as to which see infra.

Pleadings

Judge’s order for arrest
The Judge’s order for the arrest of the ship will direct that the ship be arrested at any hour of the day or night, including Sundays and holidays, and that it may not be arrested if payment of the sum stated in the order, comprising the amount of the claim in the suit and the ad valorem court fee and the sheriff’s poundage, is paid on behalf of the ship or satisfactory security for the claim is furnished.

Warrant for Arrest
The warrant for arrest when issued by the Court’s registry will be served by the bailiff of the Marshal of Calcutta and by the bailiff of the Sheriff of Mumbai(Bombay) or Chennai (Madras) or his substitute who is required to effect the service by affixing (i.e. attaching and not just holding in position by hand) the original warrant of arrest for a short time (the duration should be about 10 to 15 minutes) on any mast of the ship or on the outside of any suitable part of the ship’s superstructure, then removing the original and leaving a duplicate thereof affixed in its place. (This mode of service is enjoined in the case of service of the writ of summons, see infra, on the ship.) There have been occasions where persons entrusted with the service are not competently instructed as to the mode of the service, which is of particular importance in a suit in rem, and, indeed, there have been instances where service has been effected on the master or a mate by delivering the duplicate of the warrant to him and obtaining his acknowledgment on the original. This would constitute bad service as would service on any other person on board the ship - The Marie Constance.²⁹ There have been no instances of the arrest having been impugned on account of bad service.

There is no provision made in the Rules for effecting service on a ship lying at a port other than that in whose registry the writ has been issued, viz, Calcutta, Madras or Bombay, through the Collector of Customs at such other port. This lacuna puts the plaintiff to the expense of taking the marshal’s/sheriff’s substitute to that port to arrest the ship and there is also the possibility of the ship sailing away before service can be accomplished. To avoid this possibility it is advisable that the registry should be requested by a praecipe (after obtaining order from the Court to that effect) to give telegraphic/facsimile intimation to the Port Conservator and to the Commissioner of Customs at the particular port of the issue of the warrant for arrest of the ship and instruct that officer not to grant port clearance to the ship, pending arrival of the warrant of arrest.

Whereas the Admiralty Rules require that the warrant shall be returned within a stipulated period from the service thereof.

The Calcutta and Madras Rules provide that, after expiration of 12 days from the return of the warrant for arrest, if no appearance shall have been entered in the suit the advocate for the plaintiff may cause the suit to be set down for hearing and also provide that, if when the suit comes up before the court, the judge is satisfied that the plaintiff’s claim is well founded he may pronounce for the claim and may order the ship to be sold with or without previous notice and the proceeds of the sale paid into the registry or make such order in the premises as he shall think just. The warrant of arrest issued by the said two High Courts is in its form citatory, calling upon the owners and all parties interested in the ship to appear before the court and is deemed sufficient notice to all to whom it may concern of the suit. It, however, does not require them to file a written statement to the suit.

Writ of Summons - Mumbai Rules
There was a similar provision in the Bombay Rules. This has been omitted in the new Rules which came into effect from 1 January 1980 and the warrant of arrest now being issued by the court does not contain a citation to the owners and other parties interested in the ship. The Bombay Rules currently applicable enjoin the service of the writ of summons on the ship in the same manner as the warrant of arrest. The writ of summons is in the same form as applicable to suits filed in the ordinary original civil jurisdiction of the High Court with such variations as the circumstances of the case may require. The prescribed form requires the filing of an appearance and a written statement of the defence to the suit and delivery of a copy thereof to the plaintiffs within 12 weeks from the service thereof. Unless otherwise directed, the returnable date of the writ of summons is 16 weeks after the date of filing of the suit and on that date the suit will be placed before the judge in chambers for directions. If on that date no appearance has been filed, the judge may order the suit to be set down on the board to be proceeded with as undefended.

This difference in the Bombay Rules is liable to put a plaintiff, particularly in a suit for wages, who has arrested a ship for his claim, to inconvenience and hardship as it precludes him from having the suit set down on board for judgment for default of appearance before the returnable date. To overcome this problem, in the writer’s view, a direction will have to be obtained from the judge ordering the arrest, for variation of the form of the writ of summons by abridging the time for entry of appearance to 12 days of the service thereof and fixing the returnable date to say two weeks after such service.

When the warrant of arrest is citatory in form as under the Calcutta and Madras Rules, it may not be necessary for a separate writ of summons to be served on the ship. (It has been so held by the Bombay High Court when the Bombay Rules were similar to the Calcutta and Madras Court Rules.³⁰ Nevertheless, in the writer’s view it is advisable to ensure that the Writ of Summons is issued by the registry and served at the same time as the warrant of arrest.

The Rules of all the three courts provide that in a suit in rem no service of the warrant of arrest shall be required when the advocate for the defendant ship agrees to accept service and to give security or to pay money into court.

Security
In the case of arrest of a trading ship which is ready to sail from the port, it is not only usual but considered to be the prudent thing to do for security to be furnished to the extent fixed by the court, together with the sheriff’s poundage, and to sail away the ship and thereby avoid detention loss, unless there is a caveat release outstanding in the Caveat Release Book in which case notice will have to issue to the caveator. It is not necessary that the filing of the appearance or the giving of security shall be under protest as to the Court’s jurisdiction to receive and try the suit and the entry of an appearance and giving of security will not amount to submission to the court’s jurisdiction.³¹

The objection to the jurisdiction of the court to entertain the suit can be raised on behalf of the defendant by way of a notice of motion, supported by an affidavit, praying for an order that the warrant of arrest issued by the court be superseded and set aside and the amount of the bail or guarantee furnished on behalf of the defendant be released, and there is no necessity to deliver a written statement traversing the jurisdiction unless the validity of the objection to jurisdiction depended upon the proof of controversial facts.³² In cases where the arrested ship is likely to remain at the port for a few days, the notice of motion for superseding the warrant of arrest may be heard as a matter of urgency.

In cases where the amount of the security directed to be furnished is excessive, an application on notice of motion may be made for its reduction either before or after the security is furnished.

Effecting the arrest
The marshal/sheriff will not act until he has received the warrant of arrest issued from the registry and a deposit towards his fees and expenses and, as there is invariably some delay before the warrant of arrest is issued from the office of the registry and reaches the office of the marshal/sheriff, it is convenient to intimate to the marshal/sheriff, as soon as the judge’s order for arrest is signed, information as to where the ship is to be found which will enable him to arrange for his substitute, who will effect the arrest, to be readily available to proceed to the ship as soon as the warrant of arrest is lodged in his office. The plaintiff or his advocate will have to provide a conveyance to the ship for the person entrusted with the service and, if the ship happens to be at an anchorage berth, a launch to enable him to go on board.

The marshal/sheriff, before he proceeds to effect the arrest will require an initial deposit of a sum (in Bombay it is Rs.500) towards such expenses as may be incurred by him in connection with the custody and care of the ship while under arrest; he will also require a personal undertaking from the plaintiff’s advocate to make further deposits towards such expenses as and when required. Before giving such an undertaking, the plaintiff’s advocate should ensure that he himself is placed in sufficient funds by his client who may not be resident within the jurisdiction. The plaintiff will have a first charge in respect of the said expenses on the sale proceeds of the ship. In the event of the prompt release of the ship, on giving of security for the claim in suit, there will be no expenses incurred by the marshal/sheriff on its custody and the whole of the deposit placed with him will fall to be refunded to the plaintiff or his advocate.

After arresting the ship the marshal/sheriff will issue intimations in writing to the customs and harbour authorities of the arrest, enjoining them against the grant of customs and port clearance to the ship until they have received further intimations from him that the arrest has been lifted. It is advisable for the plaintiff’s advocate to ensure that such intimations reach the said authorities expeditiously.

Security for the claim in suit
Security for the claim in 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. The bank guarantee is required to be from a nationalised bank or a foreign bank carrying on business in India and having an office at Calcutta, Madras or Bombay where the warrant of arrest is issued. The bank giving the guarantee will itself require an acceptable counter-guarantee from a bank abroad before it will furnish its guarantee to the court.

The courts are not acquainted with P. & I. clubs and a P. & I. club guarantee is not accepted. However, a plaintiff is free to accept a letter of indemnity issued by a P. & I. club. The master of an arrested ship can represent the ship in taking steps to have it released. The bank guarantee, unless discharged, will have to continue to remain in force till the suit is finally disposed of and for a period of one year thereafter. It is possible to substitute a bank guarantee for the cash deposit. In the case of a cash deposit it is usual for the court, at the instance of the parties, to invest the amount on an interest-bearing term deposit, pending the disposal of the suit.

Release of ship
In cases where the arrested ship is released on security being furnished for the plaintiff’s claim, the suit, unless compromised, will proceed to a trial and judgment in the normal course.

Problems are, however, encountered in those cases where the ship is not released, usually because of the owner’s bankruptcy and the master and crew have also abandoned the ship. The marshal/sheriff who has the custody and care of the ship is expected to take steps involving expenses for protecting the ship and its equipment; he has to provide a skeleton crew in accordance with the requirements of the port regulations in order to maintain an anchor watch and to tend to the lights to be exhibited between sunset and sunrise in compliance with the Collision Regulations; and to keep the ship up to full sea-going standards, entailing over and inspection of machinery and watchmen to prevent thefts of valuable equipment and fittings.

The marshal’s/sheriff’s office does not have either the personnel or the wherewithal to undertake these measures in order to prevent undue deterioration and reduction of the ship’s value. The arresting party will be called upon to provide the marshal/sheriff with funds to meet the expenses involved and, in the event of failure to do so, the marshal/sheriff will report the matter to the court and apply for directions with respect to the ship. On the report coming up for consideration after notice to the arresting party and interveners, if any, the court may order that the arrested ship be released.

In such a situation, it is usual for any other party who was an intervener in the suit, especially a mortgagee with a high ranking priority, to volunteer to provide the marshal/sheriff with funds to engage a caretaker, usually a firm of marine surveyors, to undertake the said measures. The court may be moved to make the appropriate order appointing the caretaker and directing that the expenses incurred shall be a first charge on the proceeds of sale of the ship to be paid out first out of the sale proceeds to the party advancing them, regardless of the priority ranking of its claim and irrespective of the result of its own suit. The advocate of the arresting plaintiff and/or intervener advancing the funds should ensure that this provision is specifically included in the order.

Enforced Sale of the Ship
Under the Admiralty Rules of the three High courts, the sale of ship whether pendente lite or after adjudication on the plaintiff’s suit, has to be carried out by the marshal/sheriff, just like a sale of movable property in an ordinary civil suit. There is no provision for a reserve price and there is no provision for appraisement as in English Admiralty practice. Nevertheless, the courts, in order to prevent the ship being sold at a price a great deal less than its real value, from recent times have invariably ordered that the ship be appraised at its real value by a ship’s valuer and sold at not less than the appraised value thereof unless the court, on the marshal’s/sheriff’s application, orders it to be sold for a lesser price when the bidding does not reach up to the appraised value.

The sale is normally by public auction after publication of the notice of sale in such newspapers as the court may direct. There have been no known instances of sales by private treaty, though there is nothing in the Rules preventing such a sale.

Claims payable in foreign currency
In those cases where there are several claims payable in a foreign currency, usually United States dollars, the court may accede to a request in that behalf and order that the sale be restricted to persons who are able to bid for the ship in free foreign currency and that, in the event that there is no bid in free foreign currency equivalent to the appraised value, the ship be sold for Indian rupees. In order not to expose the claimants in foreign currencies to the hazards of fluctuations in the rate of exchange between the time from the filing of their suits and the payment out of their claims after adjudication, the court may be persuaded to direct that the sale proceeds in foreign currency, subject to prior approval of the Reserve Bank of India, be held by the registry in the same currency without conversion into Indian rupees. The Bombay High Court has so directed in the cases of The East Hampton,³³ The St. Nicolas,³⁴ and in both cases the Reserve Bank of India accorded approval to the sale proceeds, when received in the registry, being held in United States dollars without being converted into Indian rupees. The writer has mentioned the two cases within his experience which serve as precedents, as the Reserve Bank of India has not acted consistently in the matter of according such approval. In the cases of ships sold for Indian rupees, foreign claimants have experienced inexorable difficulty and delay in obtaining exchange control permission for repatriation out of India of the amounts recovered by them and wages claimants, especially, have had to suffer great hardship and privation.

Conditions of sale
Under the terms and conditions of the sale, the successful bidder is required to pay a percentage, usually 15 per cent, of the purchase price forthwith and the balance of the price within a period fixed in the conditions of sale, usually 15 days from the date of the sale. The payment is to be made by means of bankers’ draft or a certified cheque. Under the Rules, the sale is subject to sanction of the court. The sale is free and clear of all maritime or other liens and encumbrances.

Interest
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, which provides as follows :-

"(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:

Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I - In this sub-section, ‘nationalised bank’ means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).

Explanation II - For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.

(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie."

Judgment
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. The Plaintiff or his advocate on record of the suit who receives direct any installment or other sum ordered to be paid by the judgment debtor in full or part satisfaction of a judgment or order is obliged to file a praecipe in the marshal/sheriff’s office informing him of the payment made. The advocate on record shall be responsible for filing such praecipe if the payment has been made through his office or he is informed of it by his client.

Priority
As already mentioned, the Indian Courts will decide questions of priority on the same principles as the Admiralty Courts in England and the reader is referred to Chapter 39 and paras 1574 et seq. of Admiralty Practice by McGuffie, Fugeman and Gray (Vol. I, British Shipping Laws).

1. 53 & 54 Vict. c.2
2. 10 & 11 Geo. 5, c. 81
3. 15 & 16 Geo. 5, c. 49
4. 24 & 25 Vict. c. 10
5. LX II Bombay Law Reporter (B.L.R.) 995 to 1017
6. 66 Calcutta Weekly Notes (C.W.N.) 1083
7. 72 G.W.N. 635
7a. m.v Elisabeth-v- Harwan Investment & Trading Pvt Ltd., Goa, 1993 SC,1014
7b. Cf. Sect. 458 of the repealed M.S. Act, 1854, and sect. 546 of the M.S. Act, 1894; Maritime Conventions Act, 1911 (1&2 Geo.5, c.57)
7c. The Mac (1882), 7 P.D.126
7d. Steedman –v- Scofield^7d [1992] 2 Lloyd’s Rep .163
7e. [The Schooner Exchange –v- M. Faddon, (1812) 11 US (7 Cranch) 114, 144.)
8. Jayaswal Shipping Co. v. S. S. Leelawati, All India Reporter (A.I.R.) 1954, Calcutta 415
9. Section 4 of the Admiralty Court Act, 1861, supra
10. (1975) 79 G.W.N. 194
11. Section 4 of the Admiralty Court Act 1840 (3 & 4 Vict. c. 65) and Section 5 of the Admiralty Court Act, 1861, supra
12. Section 6 of the Admiralty Court Act, 1861, supra
13. Rungta Sons Ltd. v. Master and Onwers of Edison, Supra; Sahida Ismail v/sPetko R. Salvejkow, 1971, LXXIV B.L.R. 514.
14. Rungta Sons Ltd., v/s Master and Owners of Edison, supra.
15. National Co. Ltd. vs. M. S. Asia Mariner, supra
16. Bombay Flour Mills Co. Ltd. v/s Aarvak 1904, VI B.L.R. 466
17. Section 7 of the Admiralty Court Act 1861, supra
18. Kamalakar v. Scindia etc., supra
19. 1 & 2 Geo.5, c. 57; Bai Kashibai Eknath v. Scindia etc., LXII B.L.R. 1017
20. See Notification No.S. O. 312 dated 17 December 1960-Gazette of India, 1960,Pt II, see 3(ii), p. 3766.
21. Section 6 of the Admiralty Court Act 1840, supra
22. Section 4 of the Admiralty Court Act 1840, supra and Section 8 of the AdmiraltyCourt Act 1861, supra
23. Section 6 of the Admiralty Court Act 1840, supra
24. Section 10 of the Admiralty Court Act 1861, supra
25. Section 10 of the Admiralty Court Act 1861, supra
26. Section 6 of the Admiralty Court Act 1840, supra
27. Section 3 of the Admiralty Court Act 1840, supra
28. Section 6 of the Admiralty Court Act 1861, supra
29. (1877) 3 Asp. M.L.C. 505.
30. Freeman v. S. S. Calanda and Capt. Tanovsky, XXIV B.L.R. 1167
31. Rungta Sons Ltd. v/s Owners and Master of Edison, supra
32. Sahida Ismail v. Petko R. Salvejkov, LXXIV B.L.R. 514 at 516.
33. Supra
34. Admiralty Suit No.74 of 1981

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In a recent judgment m.v. Umang dated 2.12.1999 passed by the single judge of the Bombay High Court, that admiralty jurisdiction should be invoked in the state of the country where the vessel is found. The operative part of this judgment is stayed by the appeal court until final hearing. The Bombay High Court has passed several orders thereafter granting arrest of a ship when vessel are lying in another state of the country.

The full text of the judgment m.v. Umang or an update of the appeal can be obtained from the author at no extra cost. You may also contact the author for any query concerning ship arrest in India on  : binitahathi@lawyers.com  / Print This Article