THE
ADMIRALTY (JURISDICTION AND SETTLEMENT OF MARITIME CLAIMS) BILL, 2012 – A
CRITIQUE.
[By
V.M.Syam Kumar LL.M.]
The
Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2012 has been
placed in public domain inviting comments from concerned stake holders. The
Bill after passing through due legislative process could become the law
applicable across India. It is a much awaited statute having tremendous
practical relevance to the maritime community and is hoped to stream line,
confine and structure the Admiralty Jurisdiction at present haphazardly
exercised by the various High Courts in Indian States. Let us examine it
closely.
Comments on Chapter I of the Bill
Definition
of Charge
Sec. 2 (1)
(c) of the Bill defines ‘Charge’ as any due with reference to ‘port
or pilotage’ but does not include any charge in respect to light dues,
light houses, buoys or beacons. Thus Charge has been defined to take in port or
pilotage dues alone. The term ‘Charge’ when used in relation to Admiralty
jurisdiction and maritime claims is a term that has wider ramifications. The
Bill admits the same in Sec. 5 (2) (c) wherein it is stated that any claim in
respect of a registered mortgage or of ‘charge on a vessel’
(emphasis supplied) is a maritime claim. [See also Sec. 7 (1) (ii)]. In view of
the same, the blanket definition of charge in Sec. 2 (1) (c) limiting it as
port or pilotage dues could create confusion and issues of interpretation when
a court proceeds to consider a ‘maritime claim’ arising from a ‘charge’ over a
vessel. Definition of charge in Sec. 2 (1) (c) ought not whittle down the
import of the term ‘charge’ used in Sec. 5 (2) (c). A clarification to this
effect ought to be incorporated in the Bill.
Definition
of Goods
Sec. 2 (1)
(e) of the Bill defines Goods in terms of property supplied by consignor
(emphasis supplied). This definition could have an inter play with Sec. 5 (1)
(h) which inter alia states that maritime claim includes any claim arising out
of any agreement relating to the carriage of goods on board the vessel (emphasis
supplied). The agreement referred to therein could mean any form of
contract of affreightment including Bills of lading or charter parties. The
term supplied by consignor used in Sec. 2 (1) (e) of the Bill to
qualify the term goods is unnecessary and capable of creating myriads of legal
issues, especially if it is an action based on a bill of lading which is a document
capable of passing title on to the holder. Hence it is prudent to leave the
definition of goods simple by deleting the terms supplied by consignor.
Definition
of High Court
Sec. 2 (1)
(f) of the Bill defines High Court. Eight high courts from among the various
High Courts in India have been chosen to be conferred with Admiralty
Jurisdiction. Though very practical and purposive, the said selection
contradicts the dictum laid by the Supreme Court of India in MV ELIZABETH that
Admiralty Jurisdiction is a facet of the inherent jurisdiction that exists in
all High Courts in India by virtue of their being high courts of record. The
decision to overlook the dictum of the Hon’ble Supreme Court clothing all High
Courts of India with admiralty Jurisdiction would require a better legal
reasoning than the simple practical explanation that the eight chosen ones are
the only littoral High Courts in India, thereby meaning that they are situated
in states which have a coast line and sea ports. Admiralty jurisdiction should
extend to all navigable waters and hence the question of confining it to states
with coast line lacks reasonableness.
Definition
of Port
Sec. 2 (1)
(c) of the Bill defines Port as having the meaning assigned to it in the Indian
Port Act, 1908. It is not clear as why the more broader and apt definition of
Port as defined in the Major Port Trusts Act, 1963 was not adopted. The
definition of Port in Sec. 2 (q) of the Major Port Trusts Act, 1963 reads as
follows: "port" means any major port to which this Act
applies within such limits as may, from time to time, be defined by the Central
Government for the purposes of this Act by notification in the Official
Gazette, and, until a notification is so issued, within such limits as may have
been defined by the Central Government under the provisions of the Indian Ports
Act” The said definition appears to be inclusive and apt as it speaks of
the Indian Ports Act definition also. The definition of Port Approaches in the
Major Port Trusts Act, 1963 ought to have engaged the attention of the
drafters.
Definition
of Vessel.
‘Vessel’ has been defined (in sec. 2 (1) (j) of the Bill)
to include, ‘any ship, boat, sailing vessel or other description of vessel
used in navigation’. This definition which has apparently been borrowed
from elsewhere does not suit the contemporary realities in India.
It marks a
departure from the Draft Admiralty Act, 1990 and the Admiralty Bill of 2005 by
substituting the term ‘Vessel’, instead of ‘Ship’ which had been used therein.
Admiralty
jurisdiction has always been concerned with sea going ships was never intended
to be exercised or need be exercised in relation to a ‘boat’. Boat has
been defined in various statutes which are mostly creations of State
legislatures. Exercising Admiralty jurisdiction over boats would create myriads
of problems both administrative and judicial as boats are covered by separate
statutes in India. Further bringing in ‘sailing vessels’ as a subject
matter over which admiralty jurisdiction will be exercised is also surprising.
A ‘sailing vessel’ is a vessel which has a sail and thus uses wind as
its means of propulsion. Such vessels have become redundant with the inception
of vessels fitted with mechanical means of propulsion. The Merchant Shipping
Act, 1958 in Sec. 3 (45) specifically exempts sailing vessels from the
definition of ‘Ship’. Such exclusion existed in the Admiralty Bill of 2005.
Hence the bringing in of ‘sailing vessel’ into the Admiralty realm is
un-necessary. The definition, further proceeds to include ‘any vessel used
in navigation’, within the description of the term ‘Vessel’ and this
could take in a yacht, catamaran, dhow, country crafts and any other water
craft used for navigation. The term ‘navigation’ has not been defined so
there is nothing to suggest that it means navigation through the sea. This open
ended definition of ‘Vessel’ could lead to situations where Admiralty
Jurisdiction is invoked in areas where it was never intended to be invoked,
like with respect to myriad of disputes involving boats and fishing vessels. It
is desirable to define ‘Vessel’ with precision rather than nebulously. The
definition of ‘vessel’ should be one limiting it to sea going ships fitted with
mechanical means of propulsion.
It is ideal
to use the term ‘Ship’ instead of ‘Vessel’ not only because its apt and proper
but also since most of the shipping statutes like Merchant Shipping Act, 1958
uses the term ‘Ship’ and not ‘Vessel’.
Further,
there exists a strong case for further confining admiralty jurisdiction on to
one category of such sea going ships viz., to foreign flag ships alone and for
exempting ships registered in India from such arrests. I propose to deal with
this larger question while discussing Sec. 6 of the Bill which makes specific
reference to the same.
Explanation
to 2 (1) (j): Exemption of ‘Vessels’ brought in for breaking.
The
Explanation appended to 2 (1) (j) regarding vessels that are brought in for
breaking and demolition ceasing to be ‘vessels’ thus taking them out of purview
of admiralty jurisdiction (except with respect to some specified claims), might
bring solace to the ship breaking industry, at a time when Indian Supreme Court
is clamping down on heavily on the highly polluting ship breaking processes and
yards in India through decisions like the ones involving vessels Exxon Waldez,
Clemenceau etc. But for a person who has a genuine maritime claim or maritime
lien against a vessel which ought to be invoked before she is broken down, the
criterion fixed in the Bill will be detrimental. Hence it is doubtful whether
the provision strikes a fair balance, reasonably expected of a statute.
It has been
found in practise that Vessels which are subject matter of dispute or over
which maritime liens still attaches are brought to the ship breaking yards in
India, without the knowledge of the claimant or one of the disputing parties.
For instance a foreign flag vessel was berthed for breaking in the ship
breaking yard situated along Kerala coast run by a Government of Kerala
Undertaking (ship breaking operations of which has recently been clamped down
as being highly polluting and illegally operated) even without the contesting
owner of the vessel being aware of the same. By the time the contesting owner
obtained an Arrest Order invoking Admiralty Jurisdiction of the Kerala High
Court, steps towards breaking had already been initiated surreptitiously in
connivance with the yard. Such instances and the privilege afforded by law to a
‘maritime lien’ require that the Explanation appended to the definition of
Vessel to be closely scrutinised.
As per the
Explanation, except for employment claims, the vessel will be devoid of its
character as a ‘Vessel’, merely upon happening of three requirements/conditions
enumerated viz., (1) permission for beaching for the purpose of demolition
being obtained from the ‘relevant authority’, (2) upon bill of entry for
home consumption for the purpose of breaking ‘been filed’ and (3) upon
duty as assessed being paid to the Customs.
The above
stated requirements/conditions as stated in the Bill lacks clarity and
could be used by unscrupulous interests to bypass and deny genuine maritime
liens and claims. Upon happening of any said requirements/conditions
(which can very easily and unilaterally be complied with) the Admiralty
Jurisdiction of the High Court over the Vessel is taken away. This
effectively prevents genuine claimants and persons who have maritime lien
against the vessel from realising and enforcing their maritime claim/ maritime
lien against a vessel before she is broken down as they have no control over
the performance of the above three conditions.
Admiralty
Jurisdiction, which the Supreme Court of India termed as an inherent original
jurisdiction possessed only by higher courts of record ought not be easily
declined or taken away by such an explanation especially when it comes to the
enforcement of maritime liens.
Wreck and
Admiralty jurisdiction
Bill does
not define wreck though there is reference to it in Sec. 5 (2) (i). Wrecks
abound along the Indian coast. Law relating to Wrecks in India is archaic and
requires updating in lines with the Nairobi International Convention on the
Removal of Wrecks, 2007. It is understood that step in the said direction are
presently underway. There has to be clarity regarding the status of wreck and
its subjection to the Admiralty Jurisdiction since maritime claims could abound
in relation to wrecks. The Bill in its present form does not take care of this
crucial aspect.
Comments
on Chapter II of the Bill.
Sec.3 (1) of
the Bill deals with the crucial aspect of jurisdiction of admiralty courts.
The relevant ingredients
thereof are as follows:
(1) Jurisdiction envisaged is only civil
jurisdiction.
(2) Such jurisdiction is
vested only on the High Courts.
(3) It is exercisable
over the waters up to and including the territorial waters
(4) The High Court’s
shall exercise it within their respective jurisdictional limits.
(5) It shall be
exercised in accordance with the provisions of the Chapter II.
The area of operation
stated therein viz., over the waters up to and including the territorial waters
and the confining of the jurisdiction of each High Court to such areas falling
within its on territorial limits assumes importance.
Inland waters which
found mention in earlier drafts have been taken away. But the present
definition since it extends up to the territorial waters, it could be said to
include inland waters, internal waters and territorial sea up to12 nautical
miles as defined in the Act of 1976 pertaining to Maritime Zones of India.
However, what is the relevance of the words “over waters” used therein? Does it
mean the jurisdiction is exercisable only over waters? What about a claim
arising with respect to a vessel that has been dry docked for repairs? Does the
deletion of the words “over waters” make any difference in effect of the
provision? Apparently it does not.
Further is
the aspect of limiting the jurisdiction of the High
Courts to their respective jurisdictional limits. This is a direct concern for the chartered High Courts of Bombay, Calcutta and
Madras which have been hitherto exercising a pan India admiralty jurisdictions
as laid down in the Charter and the colonial courts of Admiralty Act, 1891.
Even other High Courts like High Court of Kerala which started exercising
admiralty jurisdiction subsequent to Elizabeth
have been exercising a pan India admiralty jurisdiction. What effect would Sec.
2 (1) (f) and Sec. 3 (1) of the Bill have on the exercise of admiralty
jurisdiction by the said courts? Have the drafters of the Bill taken note of
the proceedings and report of the Standing Committee of the Parliament on
Admiralty Bill 2005 which suggested a pan India jurisdiction for all admiralty
courts? The said observations still hold good and there is strong legal
reasoning for providing pan Indian jurisdiction for admiralty courts especially
since admiralty jurisdiction is universal and is not concerned with the
question of nexus between the cause of action and the forum.
Deviations in Sec 5 from the 1981 UK Act.
Sec. 5 that
deals with Admiralty jurisdiction is the most relevant provision in the Bill. Secs. 5 (1) & (2) thereof
are by and large in line with the provisions contained in the erstwhile Supreme
Court Act, 1981 of UK however, with some startling deviations.
Since the law has to
suit the situations prevailing in India, and we need not by tied down by
English statutes, changes if necessary in the said respect are to be welcomed.
However, such changes should be brought in after considering their effect on
other provisions in the bill and beyond.
The deviations are
apparently incorporated based on the suggestions made by the trade unions and
other stake holders to the relevant provision of similar import contained in
the Admiralty Bill, 2005. Though there is no need to retain the very same
structure and provisions as exists in the 1981 UK Act, whenever deletions,
additions, interpolations etc. are made, the same require some reasoning and
justification. Some of the deviations appear to be unilateral and capable of
great mischief, if permitted to remain in the Bill. It seen from the
Proceedings and Report of the Standing Committee of the Parliament on the
Admiralty Bill, 2005 that the suggestion of the Department of Shipping to
verbatim follow the similar provisions of the UK Act was turned down as un-
acceptable and directed re-consideration and revision. (see para 14.4.14 of the
Proceedings and Report of the Standing Committee of the Parliament on the
Admiralty Bill, 2005). However this is not a licence to pick and choose the
changes to the provisions or mechanically carry out changes. To further
complicate things, typos abound in this part of the Bill. In view of the above,
there is a real need to read down Sec. 5 in its entirety.
Some deviations from the
1981 UK Act, which appear crucial, alone are examined here.
Sec. 5 (1) (a) states
that the court shall jurisdiction to hear any questions and claims “by or against vessel” mentioned
in sub section (2). The highlighted words therein are of concern since they
effectively limit the scope of admiralty jurisdiction exercised by the Court.
Sec. 5 (1) (b) states that the court shall jurisdiction in relation to any of
the proceedings mentioned in section 7. Other than these two, no other form of
exercise of admiralty Jurisdiction is envisaged. This stifles the admiralty
jurisdiction and limits its scope compared to what previously existed. Admiralty jurisdiction historically is a
jurisdiction very wide in scope and much beyond the purview of the maritime
claims as enumerated in the Bill. Hence at least to keep the wide sweep of
Admiralty jurisdiction intact it is necessary to incorporate a clause to effect
retention of Admiralty Jurisdiction hitherto vested in the High Court and any
jurisdiction connected to ships which may in the future be assigned to the
admiralty court. As regards the words “by or
against vessel” used in Sec. 5 (1) (a),
the same is a surprising addition. Historically, an in rem action under Admiralty Jurisdiction is available not only by
or against a vessel. It is available against both ship and cargo. By virtue of that addition, the whole array
of questions and claims borrowed from the Act of 1981 (UK) stands stifled and
limited to “any questions and claims by or against vessel.”
Deviations generally are
further noted in Sec. 5 (2) (b), (c), (e), (f), (f) (ii), (g), (h) (i), (j),
(k), (l) (ii), (l) (iii), (m), (o) and (p).
Arrest of a ship would
be an exceptional remedy and ought to be invoked sparingly and in extraordinary
compelling circumstances. Otherwise freedom of navigation will be at peril.
Looking at the deviations made, the bill appears to proceed on the opposite
basis.
In Sec. 5 (2) (b) the
word “operation” has been included. The term “employment” already present in
the said provision makes inclusion of the word “Operation” unnecessary. Though
some fine nuances and differences could be pointed out, the question is whether
the additions of such word was in any manner necessary as regards the questions
arising between co owners.
Sec. 5 (2) (c) of the
Bill added the word “registered” before mortgage thus making it necessary that
the jurisdiction under sec. 5 to hear any claim in respect of mortgage is
qualified only to registered mortgages. Though under Merchant Shipping Act,
1958 speaks of registered mortgages, claims leading to an admiralty action
could arise with respect to unregistered mortgages also. That unregistered
mortgages could lead to uncertainty is not a reason sufficient to limit the
scope of claim in respect of mortgage. Since admiralty jurisdiction envisages a
detailed trial on such points, uncertainty, if any, will be duly clarified in
the said process.
In Sec. 5 (2) (d) the
words “during her stay or voyage” has
been included to qualify any claim for damage caused to a vessel. The
said words “during her stay or
voyage” lacks clarity. Further the term “a
vessel” means any vessel. So a claim against a vessel for the damage caused
by her to another vessel falls within the ambit of this clause. To qualify it
with the words “during her stay or
voyage” only complicates the otherwise clear provision.
In
Sec. 5 (2) (e) the words “including civil
liability for damage caused by pollution covered under the Merchant Shipping
Act, 1958” has been included after the words “any claim for damage caused by a vessel”. This addition in the
light of Part XB of the Merchant Shipping Act, 1958 which deals with Civil
Liability for Pollution Damage will open up jurisdictional and other issues. For
instance, Part XB envisages applicability extending up to Exclusive Economic
Zone whereas the Bill envisages admiralty jurisdiction only up to and within
Territorial waters.
The
change effected in 5 (2) (m) appears totally unnecessary in view of the
specific provisions including Sec. 445 in the Merchant Shipping Act, 1958. This has to be viewed in the light of the
deletion of Sec. 20 (7) of the Act of 1981 (UK) and especially its proviso
which was one of very wide import. The change brought in by the above deletions
overturns the relevant proposition (proviso to Sec. 20 (7)), that too for no
valid reason whatsoever.
In Sec.
5 (4) (c) the insistence of ‘registered’ mortgages is unnecessary for the reason
explained herein above while discussing Sec. 5 (2).
Sec.
6 and Arrest of Indian Flag vessels
Sec. 6 of the Bill
provides for some procedural formalities before an admiralty arrest can be made
of a vessel registered in India by an in
rem action. The said formalities are apparently incorporated to protect
Indian flag vessels from being arrested in
rem.
Two clear working
days notice as stipulated therein is not by itself going to afford any
substantial protection to the owner of the Indian flag vessel. The reasoning for providing only two clear
working days in the Bill for the six clear days as had been stated in Sec. 6
(1) of the Admiralty Bill, 2005 is difficult to appreciate.
Though the definition
of ‘inland waters’ is seen deleted as
redundant, the term inland waters is seen stated in Sec. 6 (2) of the Bill. Here
again the pan India jurisdiction hitherto exercised by the Admiralty courts are
seen taken away.
It has been
consistently held by the High Courts in various cases that arrest of an Indian
flag vessel is never envisaged under Admiralty Jurisdiction. The judicial
reasoning found in the said judgments is sound and legally well founded.
Moreover, there exists no practical reason as to why an Indian flag vessel has
to be arrested in rem exercising admiralty
jurisdiction.
The purpose of an
admiralty arrest also has to be borne in mind while making discussing this
aspect. The principal objective of arresting a vessel in rem is to ensure that sufficient security is obtained from the
owner of the vessel or person interested in the same so that the claimant, if
successful in his claim, has a corpus to proceed against and realise the fruits
of the decree. In the case of a foreign vessel, since the vessel could be the
only property available in India to the foreign owner, before she sails out of
Indian jurisdiction (probably to never return), sufficient security has to be
obtained. Such a scenario of imminency and lack of assets in India to proceed against
does not arise in the case of an Indian ship.
Indian flag vessel is
a vessel registered in India as envisaged under the Merchant Shipping Act,
1958. The said Act specifically provides in Sec 21 the qualifications for being
an ‘Indian Ship’. A bare perusal of the said provisions will reveal that stringent
requirements intended to ensure that the genuine link (read financial link)
governing the commercial functions of the ship remains in India. This along
with other stringent provisions regarding Registration of ships differentiates
India from a flag of convenience country. Hence every claimant who has a
maritime claim against an Indian ship has enough avenues to secure his claim,
thus making arrest of the vessel un-necessary.
Further the civil
remedies of attachment before Judgment under the Code of Civil Procedure, 1908
is equally available against an Indian owner and his assets including the
relevant ship or sister ships. Scope for arresting an Indian Vessel would only
lead to misuse of the arrest in unscrupulous hands. Arrests of Indian flag
vessels will serve no purpose other than to cajole and coerce Indian ship
owners to settle the claim. Hence arrest
of an Indian ship is totally irrelevant and unnecessary as laid down by the
High Court Judgments. (See judgments of Kerala High Court in GENERAL ENGINEERING
v. MV ARABIAN SEA and Calcutta High Court in PORTO MAINA MARITIME V. OWNERS MV GATI
MAJESTIC For a contra view please see Judgment of the Bombay High Court
reported in CROWN
MARITIME CO. (I) LTD. VS BARGE SALINA II AND ORS.)
Need
for excluding Government ships
As it stands now the Bill
does not contain a provision excluding action in rem against Government and vessels owned by the Government.
Recently two vessels owned by the President of India and plying between
Lakshadweep Islands and the mainland were attempted to be arrested by a local
shipping yard for a paltry sum alleged to be outstanding from the Company
Managing the operations of the said vessels. Plying of the said vessels which
are the crucial link between the Islands and the mainland were attempted to be
stalled. Arrest motion was declined by the High Court of Kerala inter alia
holding that admiralty jurisdiction was not attracted with respect to vessel
owned by the President and the plaint was directed to be returned to the
parties to be produced before the appropriate civil court. (See judgments of
Kerala High Court in GENERAL ENGINEERING v. MV ARABIAN SEA)
The Admiralty norms
in England and other common law countries contain specific provisions excepting
crown vessels and government vessels. Vessels owned by the Government are
properties of high public importance. There exists no need to obtain security
from the Government by arresting a vessel owned by the Government as there
exist no risk of the Government running away from a decree. Though
internationally, some there is a trend to differentiate and categorise
separately Government ships used for commercial purposes and other Government ships,
in Indian context there is no scope for even such differentiation. It is hence
desirable to have a ‘Saving’ clause
in following line:
Nothing in this Act shall authorise proceedings in
rem in respect of any claim against the Government, or the arrest, detention or
sale of —
(a) any ship of which, the ownership or beneficial
interest is vested in the Government either Union or State; or
(b) any cargo or other property
belonging to the Government.
Sec.
21 and Repealing of earlier statutes
Repealing earlier
statues, mechanically without providing an effective, if not better
alternative, could lead to serious legal lacunae. Though repealing redundant
statues cannot be found fault with, statutes for which adequate substitutes
have not been provided in the Bill ought not to be repealed. The Bill shows
some instances of mechanical repealing. Among the statutes that the Bill seeks
to repeal are included, the Admiralty Offences (Colonial) Act, 1849. The said
statute dating to the British Raj, defines admiralty offences and provides for
trial for admiralty offences in colonies. It inter alia speaks of piracy on the sea and is incidentally the only
statute in India which speaks of Piracy. The handiness of the said statute was
evident in the trial of pirates involved in ALONDRA
RAINBOW. There is no provision in the Bill akin to the provisions in the
said statute. However, the said statute finds mention in the list of those to
be repealed by the Bill.
It would be imprudent
to repeal a statute like the Admiralty Offences (Colonial) Act, 1849 without
providing the legal system with an equal or better substitute to the same.
Though SUA, 2002 does exist, the same falls within a different realm.
Admiralty
jurisdiction historically is a jurisdiction very wide in scope and much beyond
the purview of the maritime claims as enumerated in the Bill. The present Bill
is bound to have a stifling effect on the wide admiralty jurisdiction hitherto
exercised by the Courts in India. Hence at least to keep the wide sweep of
Admiralty jurisdiction intact it is necessary to incorporate a clause to effect
retention of Admiralty Jurisdiction hitherto vested in the High Court which
could be as follows: “any other Admiralty
jurisdiction which had immediately before the commencement of the Bill (Act) by
virtue of the Admiralty Court Act, 1840, Admiralty Court Act, 1861, or the
Colonial Courts of Admiralty Act, 1890 or the Colonial Courts of Admiralty
(India) Act, (XVI of 1891 or otherwise.”
Conclusion
The Admiralty
(Jurisdiction and Settlement of Maritime Claims) Bill, 2012 proposes to deal
will all facets of admiralty jurisdiction as exercisable by the High Courts in
India. However it speaks of only the jurisdiction over ships to deal with
enumerated maritime claims and the procedure to adopted in the said respect.
Though the Bill aspires to be a complete code regarding Admiralty Jurisdiction in
India, it falls short of the said objective.
The exact scope and ambit of admiralty
jurisdiction including its contours and four corners have never been clearly
demarcated even in England. Since the Bill attempts to lay down the admiralty
jurisdiction in straight jacket and confine and structure the exercise of such
jurisdiction, much more caution (even with regard to its title) ought to have
been exhibited. The present structure of the Bill is thoroughly confusing,
vague and cumbersome. Strangely, no cue appears to have been taken by the
drafters from the earlier drafts on the same subject. The Law Commission of
India had along with its Report annexed a draft Admiralty Act of 1990. Though
it needs to be updated, the said draft was a good starting point for the Bill
as the scheme of arrangement followed in the said draft appears to be more
conducive and friendly than the scheme followed by the Bill of 2012. Even the
simpler version followed by the Act of
1981 (UK) on the same subject is not seen taken note of.
The main drawn back
of the Bill is that it haphazardly borrows from various similar statutes in
other countries and puts them together without taking note of the felt
necessities of the time and place where it is to operate. Secondly, it does not
take note of the Judgments rendered on Admiralty Jurisdiction by the Hon’ble
Supreme Court of India and various Indian High Courts subsequent to MV ELIZABETH case which clearly show the
path that a statute ought to take and the concerns that it should address.
Thirdly, it overlooks International Conventions and norms which have a direct bearing
on the subject of Admiralty Jurisdiction and thus lacks an international
overview, which a maritime statute of its nature cannot afford to ignore.
Admiralty is admitted
to be an unfamiliar branch of jurisprudence even in England. The Indian Law
commission has opined that the same is the situation in India. It is hence
highly desirable that before throwing in concepts like in rem and in personam and
maritime lien, general average, salvage, charter etc. into judicial arena and thus
making parties and judges grapple with their true meaning, the statute should
at least lay down the broad contours.
Among the many
reasons stated (in the explanatory note appended to the Bill) for the creation
of such an enactment is the observation of the Hon’ble Supreme Court of India
in MV ELIZABETH v. Harwan Investments Pvt. Ltd. (AIR 1993
SC 1014) that the “unfortunate state of
affairs” existing due to lack of legislative exercise in the arena of
admiralty law shall be brought to an end at the earliest. If the Bill as it
stands now proceeds to become a statute, the lamentation of the regarding the ‘unfortunate state of affairs’ would
only get louder and desperate.
The Bill as it stands
now is a hotchpotch of provisions taken from various sources, which when put
together innocently creates a cumulative confusion which will be further
confounded when courts proceeds to apply it to specified factual situations. From
the amount of typos, it appears that the Bill has been drafted in a very cursory
manner. Editing has been slipshod, totally lacking the kind of earnestness
which is to be employed and exhibited before thrusting the Bill into public
domain seeking comments from stake holders.
Law is a purposive
enterprise. We needn’t have an Admiralty Act just for the sake of having one. Guess
we will be better off without an Act in the lines of the present Bill, which would
only add on to our woes.
However, there is a
silver lining in the Bill that a lawyer will seldom miss to note.
Decades back, upon
being shown the draft of the Indian Constitution, Judge Felix Frankfurter of
the United States Supreme Court is said to have opined that lawyers in India
are in for a heyday once it is put in place. The phenomenal possibilities of
similar nature that the Admiralty (Jurisdiction and Settlement of Maritime
Claims) Bill, 2012 offers to maritime lawyers, if it becomes an Act, cannot be
lost sight of !
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