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Global Panorama – Maritime Trade and Laws

Today, almost every individual is affected due to the chaotic conditions being created out of COVID-19 effects, which is the fact acknowledged by all living on the land, for survival and otherwise. On the other hand, the incidents occurring in navigable sea waters cannot be recognized or realized except by sea professionals or sea workers (men working on the vessels on the sea). In all matters arising from any arrangement, legal duty, or law entitlement to a matter on the sea, whether in domestic or international waters, maritime laws apply to disputes or injuries. Maritime laws are governed by a separate code of rules and regs based on jurisdiction, independent of national laws.

Significance Of Sea Trade

Sea Trade has become the crown jewel of the World Economy, which can be justified by the fact that 90% of world trade is carried out through the international shipping industry. Globalization could not have materialized if it weren’t for maritime transport and specialized shipping technologies. With the expansion of Global Trade, the range of choices has inclined and the standard of living has lifted in most of the regions of the world. Maritime trade has served the consumers as well as the producers, both benefiting from the mutual channel that promotes access to wide-ranging products at decent rates.

In the past few decades, the production and consumption side of sea transportation has shifted significantly. Ship Transportation and maritime ports are at the forefront of globalization, in both cases. The foreign specialism and labor division has been leveraged by maritime transport.

Globalized Sea Trade At Its True Value

Developing nations have taken on a new role in trade geography. Although developing nations have been mere raw material suppliers in the past, today as a group, developing nations have emerged as important exporters and importers of commodities through the sea.

With their maritime imports in a volume exceeding the export, developing countries have reversed the historical situation. Developing nations are increasingly engaged in globalized production and are continuing to expand industrial output and development of infrastructure. More and more imports of crude, iron ore, and intermediate materials are growing and exporting resources and consumer goods manufactured to a higher value. In many of the emerging regions of Asia, the Middle East and Africa, they are also increasing their imports of products, final, and consumer both.

Logistics, like transport, are necessary in order to manufacture and deliver goods globally. We observe an increasing expense of transport within logistics expenditure. It does not mean transport is more costly, instead, it's getting more fuel-intensive and less costly, but shippers buying more transport to avoid having to pay for stock-keeping are affecting the cost. Looking at these cost expansion issues, it would be justifiable to say that Containerization was a realistic initiative.

The demand for containerized trade is also mirrored on the producers’ side of the trade, as multi-use general freight vessels are replaced by container vessels. Containerization greatly improved the efficiency of transport through the unitization of general cargo. Research shows that countries with a better link to the global network of liner shipments report higher volumes of trade and lower costs for trade.

Given that international marine transportation continues to prosper, a line of challenges may come its way directly or otherwise. Cities near the ports may face sustainability issues, increased pollution, and traffic jamming. Ports must be made more sustainable and damage resilient in order to create a survivable environment around the harbor areas.
Globalization works when industries on an international scale benefit from the business.

The maritime sector is one influential territory that facilitates a global impact of transactions made through the sea. Inputs from a variety of nations may be put in one conventional maritime transaction. This means that a ship or a cargo may go through various formalities at different locations and jurisdictions. For example, a Cargo may be designed by India and may be funded by Dubai for one transaction of trade between the two. Evidently, many such formalities vis-à-vis Designing, Funding, Crewing, Ownership, Insurance, Container Transport, and Exportation of the cargo may have taken place at different countries for the same transition in a single trade.

Futuristic Approach To The Concept Of Unmanned Ships At Sea

Trade in maritime continues to grow, bringing advantages for consumers worldwide. Thanks to commercial ships, which carry all kinds of cargo internationally, manned and operated by more than a million seafarers of nearly every nationality. Around 40,000 seafarers had recently been trapped on various sea vessels waiting to come back to the coast during the global shutdown due to the COVID-19 pandemic. These are the times when lives are at stake. The "world on the land" is not aware of many events and disasters occurring at the sea. Seafarers are sometimes deserted at sea; left face financial meltdown as countries' economic conditions change and employment is affected due to policy and conventions additions or amendments.

Assumedly, with casualties happening around and a tense surrounding, most of the seafarers tend to make mistakes while operating crucial navigating systems and techniques. It is recorded that the average cost of Maritime Liability Insurance claims is about 90% of maritime accidents and incidents due to human errors. Indeed it has pressed companies to invest in automation, supported by artificial intelligence and machine learning transformation technologies as the ultimate solution for improving productivity, efficiency and security by reducing human errors.
International Maritime Organization, in its 2018-2023 Strategic Plan, gives a direction regarding the Integration of new and advancing technologies in the regulatory framework which involves the issue of autonomous ships demanded by many companies in 2017. IMO shall take safety and security measures while introducing this concept keeping in mind the environmental sustainability in mind.

Impact of Autonomous Ships:

Waterborne TP describes Autonomous ships as[1],
Next generation modular control systems and communications technology will enable wireless monitoring and control functions both on and off-board. These will include advanced decision support systems to provide a capability to operate ships remotely under semi or fully autonomous control.

Autonomy does not certainly mean No Human Intervention. Of course, the control of the autonomous system has to be taken over by humans at a remote platform. At coast, the controller will rely upon the automatic control functions connecting the images through the satellites and detect problematic situations at sea. Such detection is mainly dependent upon the sensor systems. On the occurrence of a situation controller is supposed to give instructions remotely to the pre-programmed remedy navigator system at the ship. This autonomy, if properly enforced, would reduce the need for human monitoring while retaining a high and well-defined safety standard. Nevertheless, computer sensor systems are a major challenge to identify and operate properly in all related dangerous situations.

The concept of Autonomous Ships is based on certain predictions of benefits;

  • The Efficiency of Ships; costs of operating reduced, newer ship designs
  • Elimination of costs; expense for basic needs for human maintenance including Air conditioning, food supplies, electricity on cargo will be reduced.
  • Advancement in Navigational and communication technologies
  • Lower possibility of Human Errors

Although, in spite of the conceivable benefits, autonomous ships must face an array of challenges before they can achieve authenticity. To start with, Minimum Seafarers Rights would be a hurdle for the idea of autonomous shipping to take a shape of reality.
  • Unemployment issues
  • Coping up; Seafarers learning newer tech
  • Increased Cost of Construction
  • Dependency on Automated Sensor and Prediction System
Nonetheless, to cope up with the hurdles, shipping authorities and the governments must make some reservations for training programs for seafarers learning newer technology and systems to be operated remotely, so they can be employed at the coast as controllers. This way, the unemployment rate will be reduced and expertise provided by these seafarers will be acquired without hindrances.

Impact Of Maritime Traffic On Maritime Giants

Marine ship movements are spread over marine roads which pose obstacles to marine megafauna such as sharks, whales, and sea animals that have these physical attributes that allow them to surface and breathe or bask now and then. Ships produce oil pollution, air pollutants, and gas emissions which lead to ocean chemical reactions contributing to ocean acidification. The ship movement also raises the possibility of bio invasion by ballast water spills, marine mega-fauna crashes, etc.

Shipping impact mitigation is not uniform and can be challenging across all species, but technological progress (like tracking marine movements) with the ships can improve our knowledge about the presence of marine creatures and therefore their potential interactions with species and shipping movements.

For the protection of life at sea, be it human life or marine life, two international conventions have placed by the IMO; SOLAS (Convention for the Safety of Life at Sea) and MARPOL (Convention for the Prevention of Marine Pollution).

Indian Maritime Scenario

India's maritime operations have a long history spanning around five thousand years from the beginning of the civilizations of the Indus Valley. The Golden Age of Indian seafaring remains largely obscure, and the history of the sea is studied and interpreted. The essence and the direction of India's maritime community are thus essential for an understanding.

After independence, the government objectively investigated the subject and enacted a mixture of statutes and laws to ensure that trading activities were secure, successful, and constantly evolving at sea. In order to ensure rules and developments in this field, the Merchant Shipping Act was adopted in 1958. Distinguished by this Act, we had various laws, such as the Coasting Vessels Act of 1838, the Inland Steam Vessels Act of 1917 and other laws and regulations put forward by the British Government.

India's maritime history was not well documented as such. In a broad sense, the law of the sea, both within the Convention and in other agreements, provides the legal order required for monitoring the ever-increasing growth of the sea and of its resources. It is particularly relevant in the Indian Ocean and the South China Sea, where the International legal system is under tremendous stress with conflicting claims of sovereignty and often dysfunctional governments.

Admiralty Jurisdiction

Even after years of having the Indian Constitution, jurisprudence remained vague in many areas as to issues concerning the field of admiralty law, maritime law, transport, and transportation. In light of the observations of the Supreme court in M. Elizabeth and Others v. Harwan Investment and Handling Private Limited (IT 1992 SC 165) the issue of admiralty jurisdiction has been taken up for an in-depth review by the Law Commission suo motu. Indeed, our Courts continued to administer the admiralty authority, in accordance with the statutes passed by the British Parliament and extended to then colonial India.

The law commission observed that it was necessary for Parliament to substitute the British statutes by introducing legislation itself, when dealing with the British Statutes relating to subjects such as merchant shipping, extradition and admiralty jurisdiction, in which Indian legislation did not cover the entire area.

The Supreme Court of India, in M. V. Elisabeth strongly believed that High Court records with unrestricted jurisdiction in India having greater powers to rule on their competence to restore grievances under the principles of justice, equity and good conscience, where unresolved law and judicial intervention are required. The SCI therefore prepared, in place of the obsolete British laws, the principles of an International Convention on Maritime Law as appropriate in the Common Law of India, as there was no Indian law prevailing in the courts' jurisdiction regarding maritime claims.

The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill was introduced in the parliament in 2016. The bill proposed for the High Court to have jurisdiction in matters related to Indian coastal states, to extend their judicial power to territorial waters. It empowers the central government to extend its jurisdiction. Under the previous laws of the colonial era, admiralty matters were heard only by the high courts of Bombay, Calcutta, and Madras. This gave birth to the newest legislation;

The Admiralty Act (Jurisdiction and Settlement of Maritime Claims) 2017 which was enforced in 2018. This statute has been for very long overdue for codifying rules and practices concerning the implementation of maritime claims and liens, as well as ship arrests in India.

The Admiralty Act (Jurisdiction and Settlement of Maritime Claims) 2017 defines Admiralty Jurisdiction under Section 2 (a) as the jurisdiction exercisable by a High Court under Section 3 in respect of maritime claims specified in this Act.

Section 3 of the Act goes,
- [Subject to the provisions of sections 4 and 5], the jurisdiction in respect of all maritime claims under this Act shall vest in the respective High Courts and be exercisable over the waters up to and including the territorial waters of their respective jurisdictions in accordance with the provisions contained in this Act

The proviso to this adds that the Central Government may extend the jurisdiction of the High Court by notification as per the limits defined under Section 2 of the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone, and Other Maritime Zones Act, 1976.

In M.G Forests vs. M.V. Project Workship[2], the admiralty suit was dismissed on the grounds that the vessel was within the territorial jurisdiction of Andhra Pradesh High Court and not Gujarat High Court.

Ship Arrest in relevance to Indian Maritime Laws
Many applications had been pending before the Courts for arresting ships, dumb barges, offshore units, etc. because there was no specific definition of "vessels." This issue was resolved with the introduction of The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

The statute defines the term vessel under section 2 (l) as:
any ship, boat, sailing vessel or other description of vessel used or constructed for use in navigation by water, whether it is propelled or not, and includes a barge, lighter or other floating vessels, a hovercraft, an off-shore industry mobile unit, a vessel that has sunk or is stranded or abandoned and the remains of such a vessel.

The word ship is replaced by the word "vessel" and includes any ship, boat, or other description of the navigation vehicle used. A ship transfers goods or passengers from location to location throughout the world. The liabilities are held during their trip and when they enter foreign countries, they are subject to the rules of the foreign countries.

They are also accountable to be arrested or confiscated in execution or in satisfaction of any judgment arising from collisions, salvage and death or damage to the goods on account of the execution or enforcement of maritime claims. Should any regulation, safety measure, or other cause be violated, such ships may be held or seized by foreign authorities.

According to the interpretation of Section 5 of the Admiralty Act (2017), Ships are arrested or detained for specific purposes, namely;
  • So that the jurisdiction can be determined and maintained
  • So that a decree can be effectively executed
  • So that security for satisfaction of claim decreed is ensured

International Convention in regard with Ship Arrest
The Supreme Court of India implemented decisions in M. v. Elizabeth, however, did not sign and hence did not ratify or enforce either the International Conference on the Arrest of Seagoing Ships which was signed in Brussels on 10 May 1952 and Geneva on 12 March 1999. Specific parts of these conventions were included in the Indian law applicable for conducting maritime claims against foreign ships that are arrested. The Admiralty Act (2017) incorporates most of the articles from the conventions into its act but does not address other grey areas, so it does require an admiralty court.

Procedure for Ship Arrest
Based on appropriate jurisdiction, when a ship is to be arrested, the procedure mentioned below must be sorted:
  • A plaintiff must provide power of an attorney to a competent person to be a claimant on his behalf. Such legal powers, which have to be stamped in compliance with Indian laws and placed before the court while filing a complaint should be executed, notarized, and legalized accordingly.
  • The Consul General shall be informed in conformity with the High Court Rules.
  • Additionally, the Complainant shall file a petition; draft an arrest warrant and a declaration before the admiralty courts. At the time of the request for arrest, all other attachments and papers must be filed.
  • The application shall be brought before the Admiralty judge and the order shall be given or the warrant for the arrest of a vessel may be released separately.

Based on Section 5 of the Act, Arrest can be made if the High Court has reason to believe that:
  • The owner of the ship is liable for the claim in question
  • The demise charterer is liable for the claim in question
  • A claim is based on a mortgage or charge of similar nature on the vessel
  • The claim is in relevance to the possession or ownership of the vessel
  • The claim is secured by maritime lien under section 9, and the owner, demise charterer or manager is liable for the claim.
Ship arrest is the most appropriate solution for creditors globally, such as owners who have to repossess the ship to recover and process the non-payments to suppliers or the outstanding crew members' salaries.

International Organs: Judicial Bodies For International Maritime Affairs

The ICJ and the International Sea Law Tribunal (ITLOS) are two famous international judicial bodies set up through diplomatic means to settle international conflicts. Such agencies are independent and permanent to handle disputes and to give advice. The International Tribunal for the Law of the Sea is primarily responsible for resolving maritime disputes and, according to the Convention. However, ICJ looks after all or most of the dispute settlement matters among state in any regard.

The International Sea Law Tribunal (ITLOS) has been set up by the 1982 United Nations Convention on the Law of the Sea as an independent judicial agency. It has jurisdiction over any dispute concerning the interpretation or implementation of the Convention and any other Agreement that grant jurisdiction on the Tribunal in respect of any particular matters. Disputes relating to the Convention may pertain to maritime zone delimitation, navigation, conservation and conservation of the marine living resources, marine environment protection and conservation, and scientific marine research.

The primary role of the International Court of Justice is to judge sovereign-state conflicts. In cases before the ICJ only States who are parties shall be tried and no State shall be tried before the international court unless it consents to such an action. Written and oral arguments are put forward during proceedings before the Court, and the Court may, when necessary, hear witnesses and appoint expert commissions to investigate and report. In compliance with international law, the ICJ resolves conflicts as enshrined in international treaties. The judgment of the Court is final and appeal is not allowed.

End-Notes:
  1. http://www.unmanned-ship.org/munin/about/the-autonomus-ship/
  2. https://www.casemine.com/judgement/in/56ea8b3c607dba377ff10ce2
Significance Of Sea Trade Globalized Sea Trade At Its True Value Futuristic Approach To The Concept Of Unmanned Ships At Sea Impact Of Maritime Traffic On Maritime Giants Indian Maritime Scenario Admiralty Jurisdiction International Organs: Judicial Bodies For International Maritime Affairs 

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