Twelveth Edition (2019)

Table of Contents

   
PART I - JURISDICTION IN ADMIRALTY  
CHAPTER 1
 

History and Admiralty Jurisdiction of the High Courts

OPEN

Early History of the High Courts; Historical Development; Statutory Jurisdiction; Jurisdiction; Colonial Courts of Admiralty; The 1861 Act was discarded by the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 on August 9, 2017 that came in force on April 1, 2018.

 
CHAPTER 2
 

Admiralty Courts in India

OPEN

The jurisdiction of the High Courts of Bombay, Calcutta, Madras, Gujarat, Andhra Pradesh, Telangana, Karnataka, Kerala, and Odisha have Admiralty actions.

 
CHAPTER 3
 

Specific Jurisdiction and Jurisdiction in Admiralty

OPEN

The three Indian Courts of Admiralty i.e. Bombay, Calcutta and Madras were courts of specific jurisdiction. The statutory admiralty framework of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 have replaced the old act of 1861 and is now in force from April 1, 2018, the principles of 1952 Brussels Arrest Convention and 1999 Geneva Arrest Convention have been incorporated in the new act of 2017. The jurisdiction of the High Courts of Bombay, Calcutta, Madras, Gujarat, Andhra Pradesh, Telangana, Karnataka, Kerala, and Odisha have Admiralty actions.

 
CHAPTER 4
 

Exercise of the Admiralty Jurisdiction

OPEN

Section 5 and 6 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 sets out the mode of exercise of the admiralty jurisdiction, which may take the form of action in rem or action in personam. Admiralty jurisdiction is statutory, with specific heads of subject matter. It entertains both claims in rem and claims in personam.

 
CHAPTER 5
 

In Rem and Personam Actions

OPEN

Section 5 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 sets out action in rem. Section 6 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 sets out action in personam. Section 6 Subject to section 7, the High Court may exercise admiralty jurisdiction by action in personam in respect of any maritime claim referred to in clauses (a) to (w) of sub-section (1) of section 4.

 
CHAPTER 6
 

Order of Priority of Maritime Claims

OPEN

Section 10 (1) and (2) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 sets out the order of priority of maritime claims. The order of maritime claims determining the inter se priority in an admiralty proceeding shall be a claim on the vessel where there is a maritime lien; registered mortgages and charges of same nature on the vessel; all other claims.

 
CHAPTER 7
 

Maritime Claims and Analysis

OPEN

Section 4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 sets out a list of maritime claims in respect whereof, the High Courts can exercise their Admiralty Jurisdiction. The lists of maritime claims are similar to the maritime claims defined under the International Convention in relation to the Arrest of Sea-Going Ships 1952, Brussels and the International Convention on the Arrest of Ships, 1999, Geneva.

 
CHAPTER 8
 

Maritime Lien and Analysis

OPEN

A maritime lien is a species of charge that attaches to property and follows the property – most commonly a ship – to secure certain types of claims. It is inchoate from the time of the events giving rise to it, attaching to the ship, travelling with the ship into anyone’s possession even a bona fide purchaser for value without notice, except a purchaser at an admiralty court sale and perfected by legal process. Only a limited class of maritime liens are recognised under section 9 (1) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. Maritime lien means a maritime claim as recognised under section 4 (1) (w) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 against the owner, demise charterer, manager or operator of the vessel referred to in clauses (a) to (e) of sub-section (1) of section 9, which shall continue to exist under sub-section (2) of that section.

 
CHAPTER 9
 

Title, Possession, Ownership, Employment or Earnings of a Ship

OPEN

The jurisdiction of the Admiralty Court in regard to possession and co-ownership is exercised for a fourfold purpose; to place claimants in possession of a ship; or of the earnings of a ship to which they may be entitled; while protecting the interests of one or more co-owners as against others, to enable a ship to be employed; to examine accounts between co-owners, and to apportion the earnings after such examination. Section 4 (1) (a) and (b) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject maritime claims.

 
CHAPTER 10
 

Mortgage or a Charge

OPEN

By a mortgage the mortgagee acquires a right to the ownership of a vessel in a certain event, namely, on default of payment of principal and interest, since it is a transfer of all the mortgagor's interest by way of security for the payment of a loan. Mortgagee by reason of his mortgage shall not be deemed to be the owner of the ship, the mortgagor remains the dominus of the ship with regard to everything connected with its employment until the moment arrives when the mortgagee takes possession. The mortgagor therefore does not cease to be the owner of such mortgaged ship except so far as may be necessary for making it available as a security for the mortgage debt. From this it necessarily follows that a mortgagee cannot bring an action of restraint as if he were a co-owner. Section 4 (1) (c) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject maritime claims.

 
CHAPTER 11
 

Loss or Damage done by any Ship

OPEN

The claimant must establish that the ship has, done the damage (whether by collision or otherwise) to invoke admiralty jurisdiction over any claim for damage done and some authority must be shown that the damage as caused in the present case entitles the parties to proceed in rem. Damage done by a Ship means the damage done by any negligent act or behaviour of those in charge of the ship and a maritime lien arises. Section 4 (1) (d) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject maritime claims.

 
CHAPTER 12
 

Loss of Life or Personal Injury

OPEN

A seafarer or its family member (in case of seafarers death) can initiate legal action by filing an admiralty suit in the High Court having admiralty jurisdiction and obtain an order of arrest of the offending ship or sister ship owned by the offending ship and claim compensation, when the ship is in Indian territorial waters. Section 4 (1) (e) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject in maritime claims and under section 9 (1) (b) as a maritime lien shall have priority for loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of a vessel.

 
CHAPTER 13
 

Loss or Damage to or in connection with any Goods

OPEN

Section 4 (1) (f) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject maritime claims, loss or damage to or in connection with any goods. Ship is liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of loss or damage to or in connection with any goods. Loss of or damage to goods indicate that the scope of this head of claim is loss of or damage to cargo.

 
CHAPTER 14
 

Claims relating to Cargo or Passenger on board and Contract of Affreightment

OPEN

The Admiralty jurisdiction of the High Court in respect of cargo claims, passenger on board and contracts of affreightment is statutory. Section 4 (1) (f) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject maritime claims, agreement relating to the carriage of goods or passengers on board a vessel, whether contained in a charter party or otherwise.

 
CHAPTER 15
 

Use or Hire of any Ship

OPEN

Agreement relating to the use or hire of any ship whether by charter party or otherwise, unpaid dues for any use or hire of a ship, admiralty action will lie. Section 4 (1) (h) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above maritime claims pertaining to agreement relating to the use or hire of the vessel, whether contained in a charter party or otherwise.

 
CHAPTER 16
 

Salvage

OPEN

Salvor has a maritime lien on the salvaged property. A successful salvage claim requires three proofs: marine peril; voluntary service rendered when not required as an existing duty or from a special contract; and success in whole or in part, or contribution to the success of the operation. Salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment. Section 4 (1) (i) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with salvage services, including, if applicable, special compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment.

 
CHAPTER 17
 

Towage

OPEN

A Towage service may be described as the employment of one vessel to expedite the voyage of another, when nothing more is required than accelerating her progress. Section 4 (1) (j) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with towage.

 
CHAPTER 18
 

Pilotage

OPEN

The remuneration of pilots, being in the nature of wages, must be touched on. By maritime law the Admiralty Court would entertain claims by them for payment of sums due, whether in an action in rem or in personam. A pilot may proceed either in rem or in personam for the authorised pilotage dues to which he may be entitled. Section 4 (1) (k) of Section 4 (1) (j) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with towage.

 
CHAPTER 19
 

Supplies or Services rendered to any Ship

OPEN

Section 4 (1) (l) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject maritime claims, goods, materials, perishable or non-perishable provisions, bunker fuel, equipment (including containers), supplied or services rendered to the vessel for its operation, management, preservation or maintenance including any fee payable or leviable.

 
CHAPTER 20
 

Construction, Repair or Equipment of any Ship

OPEN

A classification certificate has been held to be equipment and so a claim by a classification society for their charges in connection with issuing such a certificate. Claims under this head do not give rise to a maritime lien, but a repairer has a possessory lien at common law. A ship can be arrested under admiralty jurisdiction for any outstanding dues under Section 4 (1) (m) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 which deals with construction, reconstruction, repair, converting or equipping of the vessel.

 
CHAPTER 21
 

Port, Harbour, Canal, Dock, Tolls, Waterway Charges and Dues

OPEN

A ship can be arrested under admiralty jurisdiction for any outstanding dues under Section 4 (1) (n) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 which deals with dues in connection with any port, harbour, canal, dock or light tolls, other tolls, waterway or any charges of similar kind chargeable under any law for the time being in force.

 
CHAPTER 22
 

Wages

OPEN

A seaman to whom wages are due has a right of action against the owner, the crew may bring an action in the Admiralty court either in personam against the owner, or in rem against the ship. Section 4 (1) (o) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject claim by a master or member of the crew of a vessel or their heirs and dependents for wages or any sum due out of wages or adjudged to be due which may be recoverable as wages or cost of repatriation or social insurance contribution payable on their behalf or any amount an employer is under an obligation to pay to a person as an employee, whether the obligation arose out of a contract of employment or by operation of a law (including operation of a law of any country) for the time being in force, and includes any claim arising under a manning and crew agreement relating to a vessel, notwithstanding anything contained in the provisions of sections 150 and 151 of the Merchant Shipping Act, 1958.

 
CHAPTER 23
 

Disbursements

OPEN

A ship can be arrested under admiralty jurisdiction for any outstanding dues under Section 4 (1) (p) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 which deals with disbursements incurred on behalf of the vessel or its owners. Disbursements by the master on account of the ship can be recovered in a suit for wages. The terms disbursements includes all proper expenditure made by the master on the ship and must generally be explained by reference to what disbursements has been incurred for the ship.

 
CHAPTER 24
 

General Average or Average

OPEN

The lien on cargo for general average charges can be exercised only by the shipowner in possession of the goods and, where necessary, it is his duty to other cargo owners to protect their interests by retaining possession of any goods in respect of which a contribution in general average is outstanding. However, owing to the difficulty of assessing the amount of such contributions and the time required for general average adjustment, it is not usual for shipowners to avail themselves of the right of lien in these circumstances. The customary procedure is for the goods to be delivered in exchange for the security afforded by a general average bond, a general average deposit, or both. Section 4 (1) (q) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject claim on average or general average.

 
CHAPTER 25
 

Dispute under Contract for the Sale of Vessel

OPEN

Section 4 (1) (r) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject claim on dispute arising out of a contract for the sale of the vessel. A contract for sale of the vessel would include vessel for further trading or a vessel for demolition or a scrap.

 
CHAPTER 26
 

Insurance Premium

OPEN

Insurance Premium is within the closed list for ship arrest. Section 4 (1) (s) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject claim on insurance premium (including mutual insurance calls) in respect of the vessel, payable by or on behalf of the vessel owners or demise charterers.

 
CHAPTER 27
 

Commission, Brokerage or Agency Fees

OPEN

Any unpaid commission, brokerage or agency fees by the vessel owner or demise charterer of the vessel are within the close list of maritime claim and the claimant can arrest a ship for recovery. Section 4 (1) (s) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject claim on commission, brokerage or agency fees payable in respect of the vessel by or on behalf of the vessel owner or demise charterer.

 
CHAPTER 28
 

Damage or Threat to Environment

OPEN

Section 4 (1) (u) of the Admiralty Act (2017) deals with the above subject claim on damage or threat of damage caused by the vessel to the environment, coastline or related interests; measures taken to prevent, minimise, or remove such damage; compensation for such damage; costs of reasonable measures for the restoration of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; or any other damage, costs, or loss of a similar nature to those identified in this clause. Parts X-B, X-C and XI-A of the Merchant Shipping Act deal with the prevention and containment of pollution of the sea by oil. India follows the International Convention on Civil Liability for Oil Pollution Damage, 1992 (as amended).

 
CHAPTER 29
 

Environment; Cost or Expenses relating to Wrecked, Stranded, Abandoned and Sunken Ship

OPEN

Section 4 (1) (v) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 deals with the above subject claim on costs or expenses relating to raising, removal, recovery, destruction or the rendering harmless of a vessel which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such vessel, and costs or expenses relating to the preservation of an abandoned vessel and maintenance of its crew.

 
CHAPTER 30
 

Forfeitures

OPEN

A ship is liable to be forfeited under section 33, 35, 68 and 69 (Part V) of the Merchant Shipping Act 1958

 
CHAPTER 31
 

Publicly Owned Ship and Foreign State Owned

OPEN

The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 shall not apply to a warship, naval auxiliary or other vessel owned or operated by the Central or a State Government and used for any non-commercial purpose, and, shall also not apply to a foreign vessel which is used for any non-commercial purpose as may be notified by the Central Government. A vessel owned by Government owned companies are within the purview of the act. If the ship belongs to Government of Foreign State, in that event consent of the Central Government in India would be required to proceed against the vessel and its owners.

 
CHAPTER 32
 

Arrest and Buyers Rights in Auction

OPEN

Section 2 (1) (c) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 defines ‘arrest’ and it means detention or restriction for removal of a vessel by order of a High Court to secure a maritime claim including seizure of a vessel in execution or satisfaction of a judgment or order. On the sale of a vessel under this Act by the High Court in exercise of its admiralty jurisdiction, the vessel shall vest in the purchaser free from all encumbrances, liens, attachments, registered mortgages and charges of the same nature on the vessel.

 
CHAPTER 33
 

Ship and Sisterships

OPEN

Section 2 (1) (l) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 defines ‘vessel’ and it includes 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 vessel, 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. A vessel shall not be deemed to be a vessel for the purposes of this clause, when it is broken up to such an extent that it cannot be put into use for navigation, as certified by a surveyor.“Sister-Ship” is a ship which is under the same beneficial ownership or in simple terms, owned in majority by the same owner or class of owners. More importantly, apart from arresting an offending ship in order to secure a maritime claim, a claimant may also arrest a sister ship of the offending ship in order to secure his claim.

 
CHAPTER 34
 

Claimants Undertaking

OPEN

The claimant filing admiralty suit in the High Court having admiralty jurisdiction have to file an undertaking along with the suit in an affidavit form mainly for protection of owner, demise charterer, manager or operator or crew of vessel arrested under Section 11 (1) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

 
PART II - SHIP ARREST, RELEASE & ADMIRALTY PRACTICE  
CHAPTER 35
 

Arrest of Ship

OPEN

The main purpose of arrest is to obtain security for satisfaction of judgment in the action in rem and it is necessary to arrest the ship in order to establish jurisdiction. A ship may be arrested to acquire jurisdiction; or  to obtain security for satisfaction of the claim when decreed; or in execution of a decree
 

 
CHAPTER 36
 

International Convention for Arrest of Ships

OPEN

India is not a signatory to the Brussel and Geneva conventions, the principles incorporated in the conventions became applicable for the enforcement of maritime claims against foreign ships as is held by the Supreme Court of India. Section 4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 sets out a list of maritime claims in respect whereof, the High Courts can exercise their Admiralty Jurisdiction. The lists of maritime claims are similar to the maritime claims defined under the International Convention in relation to the Arrest of Sea-Going Ships 1952, Brussels and the International Convention on the Arrest of Ships, 1999, Geneva.
 

 
CHAPTER 37
 

Caveat Against Arrest

OPEN

Any person desiring to prevent the arrest of any property shall file in the registry a praecipe, signed by himself or his Advocate, who may be acting for him, requesting that a caveat be entered against the arrest of the said property and undertaking to enter an appearance in person or a vakalatnama (appearance) in any suit that may be instituted against the said property and to give security in such suit in a sum not exceeding the amount to be stated in the praecipe or to pay such sum into the registry. A caveat against the issue of a warrant for the arrest of the said property shall thereupon be entered in a book to be kept in the registry, called the “Caveat Warrant Book”. A caveat against arrest is valid for 90 days. Successive caveats may be entered upon expiry.

 
CHAPTER 38
 

Execution of arrest warrant

OPEN

The Sheriff of Mumbai or the Admiral Marshal or his substitute may execute a warrant of arrest on the ship. Freight cannot be arrested separate from the ship or cargo, and so freight which has already been paid to the ship owners by the consignees cannot be arrested. Where, however, a claim is brought against ship and freight, the court may order that the Sheriff of Mumbai or the Admiral Marshal should sell the cargo under arrest and pay the freight from the proceeds of sale. If the warrant of arrest is dispensed with the port, custom and other authorities act upon not allowing the vessel to sail outward from its jurisdiction

 
CHAPTER 39
 

Sheriff or the Marshal

OPEN

Sheriff or the Marshal or other officer including administrative assistants such as Bailiffs or other subordinate officers who shall assist in carrying out their duties to execute the process of the Court including serving order of arrest or executing arrest warrants on ships; taking all appropriate steps to retain safe custody of, and to preserve, a ship under arrest, including removing from the ship, cargo that is under arrest; removing cargo from a ship that is under arrest; and moving the ship that is under arrest; arranging for the release of a ship pursuant to an Order of Court or instrument of Release; arranging for the valuation and sale of a ship pursuant to an Order of Court; filing a return of the sale, and an account of the sale and documents in support of the account for taxation; arranging for the payment of the proceeds of the sale of a ship into the Court.

 
CHAPTER 40
 

Property (Ship) under arrest and its effect

OPEN

The effect of arrest is that it constitutes the ship or other property as security in the hands of the court for the claim in the action and this security cannot be defeated by the subsequent insolvency of the owner of the arrested property

 
CHAPTER 41
 

Arrest of a ship does not include cargo

OPEN

If a ship is ordered to be arrested while she is in the course of discharging her cargo, the Sheriff or the Marshal will not stop the discharge operations except when the claim form is in respect of a claim for salvage and the cargo is to be arrested. Normally, when an order of arrest of ship is obtained it is only the ship and its appurtenances are arrested but does not include the cargo unless there is an order from the court for arrest of the cargo also

 
CHAPTER 42
 

Arrest of cargo does not include ship

OPEN

If cargo on board the ship is ordered to be arrested, the Sheriff or the Marshal will arrest the cargo. Without intervening in the claim in which the cargo has been arrested the ship owners or the vessel interest can request the Sheriff or the Marshal to take the appropriate steps to enable the ship to be discharged, the Sheriff or Marshal will make an application to the court for appropriate relief.

 
CHAPTER 43
 

Caveat against Release and Payment

OPEN

Any person desiring to prevent the release of any property under arrest shall file in the registry a praecipe, signed by himself or his Advocate, who may be acting for him, requesting that a caveat be entered against the release of the said property. A caveat against the release of the said property shall thereupon be entered in a book to be kept in the registry, called the “Caveat Release Book”. Any person desiring to prevent the payment out of court of any money in court representing the proceeds of sale of any property shall file in the registry a praecipe, signed by himself or his Advocate who may be acting for him, requesting that a caveat be entered against payment out of Court of the said proceeds of sale. A caveat against the payment out of Court of such sale proceeds shall thereupon be entered in a book to be kept in the registry, called the “Caveat Payment Book.”.
 

 
CHAPTER 44
 

Arrested ship affecting port operation

OPEN

Should the arrest of a ship in a port cause considerable and continued disruption to the operation of the port, the port authorities may remove the ship to a safe berth or in such other place as he think appropriate within its jurisdiction and not allowing the ship to sail away and keeping her under arrest
 

 
CHAPTER 45
 

Possessory Lien

OPEN

Possessory liens are usually asserted by shipyards who have not been paid for repairs to vessels. This is a self-help remedy long recognised by the courts. Shipyards exercising possessory lien are entitled to detain the vessel without having to arrest the vessel. On occasions, parties exercising possessory lien may need to arrest the vessel in order to obtain the assistance of the court to sell the vessel, as a right to exercise possessory lien does not carry the right to sell the vessel.
 

 
CHAPTER 46
 

Security for Release of a Ship

OPEN

Security for the claim in the suit is furnished by means of a cash deposit in the registry or a bank guarantee for the amount stated in the warrant of arrest
 

 
CHAPTER 47
 

Release of Arrested Property (Ship)

OPEN

In cases where the arrested ship is released on security being furnished for the plaintiff's claim, the suit, unless compromised, will proceed to trial and judgment in the normal course. Following its arrest, the ship is usually released from arrest after security has been provided by the ship owner or any interested parties for the claim. The security may be in the form of a bail bond, a payment of money into court, a bank guarantee or a letter of undertaking (LOU) from the ship owner's protection and indemnity club (P.& I. Club)
 

 
CHAPTER 48
 

Wrongful Arrest

OPEN

The cases involving wrongful arrest are rare and there isnt a single decided case in India and to succeed in a claim for wrongful arrest, the owners must demonstrate that there is either mala fides (bad faith) or crassa negligentia (gross negligence) which implies malice
 

 
CHAPTER 49
 

Applicable Law

OPEN

The applicable law for ship arrest is the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.
 

 
CHAPTER 50
 

Admiralty Suit and Pleadings

OPEN
Plaint, Judges Order, Undertaking, Warrant of Arrest etc
 
 
CHAPTER 51
 

Application for Arrest

OPEN

The Admiralty Rules of the High Courts having Admiralty Jurisdiction require that a suit shall be instituted by a plaint drawn up, subscribed and verified according to the provisions of the Civil Procedure Code 1908
 

 
CHAPTER 52
 

Order of Arrest and Warrant of Arrest

OPEN

The Admiralty Judge may pass a separate order arresting the ship and also sign the Judges Order for arrest of the ship. Warrant of Arrest are sometimes dispenses with by the Judge
 

 
CHAPTER 53
 

Admiralty Rules

OPEN

The Admiralty Rules of the High Courts provide that the rules and practice of the court in the matter of suits and proceedings on the original side of the court shall, if not inconsistent with the said Rules, apply to suits and proceedings on the Admiralty side of the court
 

 
CHAPTER 54
 

Procedure for Ship Arrest

OPEN
This Chapter explains the complete procedure for ship arrest from inception such as execution of power of attorney, taking search in the registry, notice to consul general, filing of plaint, undertaking, judges order or interim application, warrant of arrest, making an urgent application for order of arrest, urgent application for obtaining order of arrest is moved before the Admiralty Judge
 
 
CHAPTER 55
 

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

OPEN

Court can acquire jurisdiction if the writ or if the warrant of arrest is executed on the ship when it arrives within the territorial jurisdiction of this Court. An order of arrest of a ship can be obtained from the High Court having admiralty jurisdiction and that the ship should be in that state jurisdiction of the High Court at the time of filing of the suit.
 

 
CHAPTER 56
 

Indian Flag Ship

OPEN

Ship flying Indian flag can be arrested by invoking admiralty jurisdiction
 

 
CHAPTER 57
 

Mareva Injunction

OPEN

There is no provision in the law of India for Mareva injunction
 

 
CHAPTER 58
 

Attachment before Judgment

OPEN

"Attachment" before judgment of a ship, as of any other property, is available in all the Indian courts of ordinary civil jurisdiction having jurisdiction over the subject-matter of the claim for most kinds of claims, which would include claim for charter hire or stevedoring services or supplies
 

 
CHAPTER 59
 

Arresting Ship to obtain Security for Arbitral Award or Court Judgment

OPEN

A ship may be arrested for the purpose of obtaining security notwithstanding that, by virtue of a jurisdiction clause or arbitration clause

 
CHAPTER 60
 

Effect of Arbitration Clause on Arrest

OPEN

Arbitration clause in the Charter Party Agreement or Bill of Lading are given effect to.
 

 
CHAPTER 61
 

Arbitration

OPEN

Claimant has no right to arrest a ship in respect of a dispute arising under a contract, which contains an arbitration clause
 

 
CHAPTER 62
 

Lay Time

OPEN

The time during which a ship is lying, for the purpose of loading or discharging is Laytime, as distinct from moving with the object of carrying her cargo from one place to another
 

 
CHAPTER 63
 

Claims Payable in Foreign Currency

OPEN

A sum of money expressed in a foreign currency can legitimately be claimed by the plaintiff and decreed by the court
 

 
CHAPTER 64
 

Interest

OPEN

The question of interest on a claim in an Admiralty suit is dealt with in accordance with the provisions of Section 34 of the Code of Civil Procedure, 1908
 

 
CHAPTER 65
 

Limitation Periods, Time Bar

OPEN

The (Indian) Limitation Act 1963 applies to all claims within the Admiralty jurisdiction of the High Courts. The Act provides a three-year limitation period for actions for damage, wages, necessaries, salvage, and towage. In case of claims for loss or damage to cargo brought under bills of lading incorporating the Hague Rules, the one year period under rule 6 of Article III, providing for an extinguishments of the cause of action, itself may apply
 

 
CHAPTER 66
 

Security for Costs and Damages

OPEN

Security for costs and damages is not a condition for the arrest, but while applying for the arrest an undertaking is required to be given in writing to pay such sum by way of damages as the court may award compensation in the event of a party affected sustains prejudice by the arrest
 

 
CHAPTER 67
 

Counter Security

OPEN

The High court having admiralty jurisdiction has discretionary power to pass order for counter security if required
 

 
CHAPTER 68
 

Costs

OPEN

The court has the discretionary power to accept or reject the costs
 

 
CHAPTER 69
 

Writ of Summons

OPEN

A writ of summons on the vessel may not be required if warrant of arrest is properly served on the vessel
 

 
CHAPTER 70
 

Carrier's Identity

OPEN

Identification of the carrier may be problematic where goods are carried on a chartered vessel and the bill of lading is in the hands of a shipper or receiver who is not himself party to the charterparty
 

 
CHAPTER 71
 

Crew on Board after Arrest of Ship

OPEN

The Sheriff or the Marshal owes no duty to the crew on board as such. The relationship of the Sheriff or the Marshal to the crew will depend upon the circumstances as they affect the discharge of the Sheriff or the Marshal’s duty to retain custody of, and to preserve the ship
 

 
CHAPTER 72
 

Claims relating to Cargo

OPEN

The Admiralty jurisdiction of the High Court in respect of cargo claims and contracts of affreightment is statutory. Section 4 (1) (d), (f), (g), (i) and (q) of the Admiralty Act (2017) deals with the above subject maritime claims. The High Court has Admiralty jurisdiction over any claim arising out of loss or damage caused by the operation of a vessel; loss or damage to or in connection with any goods; agreement relating to the carriage of goods or passengers on board a vessel, whether contained in a charter party or otherwise; salvage services, including, if applicable, special compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment; particular average or general average.
 

 
CHAPTER 73
 

Claims for Unpaid Bunker Dues

OPEN

Unpaid dues of Bunker Suppliers are supplies secured by a maritime claim under section 4 (1)(l) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. Bunker fuel is technically any type of fuel oil used aboard ships. It gets its name from the containers on ships and in ports that it is stored in, called bunkers. Unpaid dues of Bunker Suppliers are secured by a maritime claim and/or a right to arrest the vessel in rem to which the bunkers were supplied or her sister ship.
 

 
CHAPTER 74
 

Collision Actions

OPEN

The maritime claim in respect of which the power of arrest is recognised in law includes section 4 (1) (d) of the Admiralty Act (2017) deals with loss or damage caused by the operation of a vessel. There is a provision under section 443 and 445 of the Merchant Shipping Act to detain ship that has occasioned damage also Part X deals with collisions, accidents at sea and liability.
 

 
CHAPTER 75
 

Restrictions to invoke Admiralty Jurisdiction

OPEN

There are restrictions to invoke Admiralty Jurisdiction on issues such as arbitration, publicly owned ship, ship owned by government of foreign state, collision
 

 
CHAPTER 76
 

Appeals

OPEN

Any party aggrieved by the order passed by the single judge of the trial court have an option to file an appeal before the division bench in the same High Court and any order passed by the appeal court of the High Court the aggrieved party may file an Special Leave Petition in the Supreme Court of India

 
CHAPTER 77
 

Execution of Foreign Decree

OPEN

A Person who has obtained a decree from a court in a foreign country can approach an Indian court for enforcement of the said decree under the Civil Procedure Code, 1908
 

 
CHAPTER 78
 

Beaching of a Ship for Demolition

OPEN

A vessel shall not be deemed to be a vessel, when it is broken up to such an extent that it cannot be put into use for navigation, as certified by a surveyor, is no longer considered as a ship and therefore Admiralty action cannot be initiated. The ship is no longer within the definition of a ship, the nature and category of the res is entirely altered, the court is without jurisdiction as there is no res, the ship has literally ceased to exist from the definition of a ship. A action in rem cannot be maintained in such situation.
 

 
CHAPTER 79
 

Indian Territorial Waters for Ship Arrest

OPEN

Section 2 (k) of the Admiralty Act (2017) defines “territorial waters” that shall have the same meaning as assigned to it in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (80 of 1976).
 

 
CHAPTER 80
 

One Ship Company

OPEN

It has long been the practice in the shipping business to arrange for several ships which are financed by a common source and managed or operated as a fleet, to be registered in the names of separate companies whose only asset is the particular ship registered in its name
 

 
CHAPTER 81
 

State-Wise Ship Arrest

OPEN

An order of arrest of a ship passed by the High Court having admiralty jurisdiction can be executed in that State having High Court that passed the order of arrest.
 

 
CHAPTER 82
 

Piercing the Corporate Veil

OPEN

Corporate veil can be lifted to establish beneficial ownership for the purpose of arresting a sister vessel-ship but should be supported with evidence

 
CHAPTER 83
 

Enforced Sale of the Ship

OPEN

In any action a court has power to order the sale of property which is perishable, likely to deteriorate or in relation to which there is good reason for sale
 

 
CHAPTER 84
 

Appraisement and Judicial Sale

OPEN

Appraisement is the official valuation of the ship by a court appointed valuer in order to prevent the ship from being sold at too low a price
 

 
CHAPTER 85
 

Condition of Sale

OPEN

The sale is free and clear of all maritime or other liens and encumbrances
 

 
CHAPTER 86
 

Sheriffs Poundage

OPEN

Poundage is payable at 1 per cent of the amount received by the plaintiff in full or part satisfaction of a judgment or, in the event of the claim being satisfied, compromised or settled outside court, upon the amount of such satisfaction, compromise or settlement
 

 
CHAPTER 87
 

Detaining vessel under Merchant Shipping Act

OPEN

Ship can be detained under section 443, 444 of the Merchant Shipping Act
 

 
CHAPTER 88
 

Indian Ships, Registration

OPEN

A ship entitled to fly the flag of a country needs to be registered in that country. The object of registration is to ensure that persons who are entitled to the privilege and protection of the Indian flag get them
 

 
   
PART III - NOTES & SUMMARY  
NOTES & SUMMARY 1
 

Rearrest and Multiple Arrest

OPEN

If a ship has been arrested and released there is no reason why it should not be rearrested for a valid claim. The High Court may also order arrest of any other vessel for the purpose of providing security against a maritime claim, in lieu of the vessel against which a maritime claim has been made under this Act, subject to the provisions of sub-section (1) Provided that no vessel shall be arrested under this sub-section in respect of a maritime claim under clause (a) of sub-section (1) of section 4.
 

 
NOTES & SUMMARY 2
 

Jurisdiction after the ship has sailed

OPEN

If Admiralty action is initiated by filing a suit and an order of arrest is obtained and the ship sails out before the order of arrest is effected, the ship may be arrested if she returns back under the general rule of perpetuatio jurisdictionis.

 
NOTES & SUMMARY 3
 

Jurisdiction before the arrival of the ship

OPEN

At the time when the Admiralty suit is filed in the court the ship must already be within Indian territorial waters or jurisdiction of that state. The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding.

 
NOTES & SUMMARY 4
 

Trading of a ship under arrest

OPEN

The decision whether further trading of the ship should be permitted or not is left to the discretion of the court. Some admiralty judges are of the view that trading of an arrested ship tantamount to diluting the order of arrest and the purpose of arrest is defeated. A ship is arrested by the Sheriff or the Marshal acting as an officer of the court. The ship comes into the custody, but not the possession, of the Sheriff or the Marshal.

 
NOTES & SUMMARY 5
 

Recognition and Enforcement of Judgments

OPEN

Arrest means detention or restriction for removal of a vessel by order of a High Court to secure a maritime claim including seizure of a vessel in execution or satisfaction of a judgment or order. A ship can be arrested for recognition and enforcement of judgments or order.

 
NOTES & SUMMARY 6
 

Same Cause of Action and between the same parties

OPEN

If proceedings involving the same parties and same cause action are already initiated elsewhere when proceedings are commenced before it unless the jurisdiction of the other court is not established, the Admiralty court will dismiss the suit.

 
NOTES & SUMMARY 7
 

Forum Non-Conveniens

OPEN

Forum non-conveniens is a common law doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a matter of civil procedure, courts must decide whether and in what circumstances they will accept jurisdiction over parties and subject matter when a lawsuit begins.

 
NOTES & SUMMARY 8
 

Foreign government ship

OPEN

The property of a foreign government not in use or intended for use for commercial purpose cannot be arrested in an action in rem. The government may consent to the use of such process. If the ship belongs to Government of Foreign State, in that event consent of the Central Government in India would be required to proceed against the vessel and its owners.

 
NOTES & SUMMARY 9
 

Ship for demolition

OPEN

Section 2 (1) (l) of the Admiralty Act (2017) defines vessel which includes 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 vessel, 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. Explanation.—A vessel shall not be deemed to be a vessel for the purposes of this clause, when it is broken up to such an extent that it cannot be put into use for navigation, as certified by a surveyor. The ship is no longer within the definition of a ship, the nature and category of the res is entirely altered, the court is without jurisdiction as there is no res, the ship has literally ceased to exist from the definition of a ship. A action in rem cannot be maintained in such situation.

 
NOTES & SUMMARY 10
 

Indian courts having admiralty jurisdiction

OPEN

The three Indian Courts of Admiralty i.e. Bombay, Calcutta and Madras were courts of specific jurisdiction. In the course of time the jurisdiction of the High Courts of Calcutta, Bombay, Madras, Gujarat, Andhra Pradesh and Orissa have entertained Admiralty actions. Under the Admiralty Act (2017), the jurisdiction of the High Courts of Bombay, Calcutta, Madras, Gujarat, Hyderabad Telangana, Karnataka, Kerala, and Odisha have Admiralty actions.

 
NOTES & SUMMARY 11
 

Recognition and Enforcement of Arbitral Awards

OPEN

Once an award is found to be enforceable it may be enforced like a decree of that court. Arrest means detention or restriction for removal of a vessel by order of a High Court to secure a maritime claim including seizure of a vessel in execution or satisfaction of a judgment or order. A ship can be arrested for recognition and enforcement of judgments or order.

 
NOTES & SUMMARY 12
 

Beneficial Owner

OPEN

Beneficial owner means, one recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust.- also termed equitable owner. Beneficial owner refers to the natural person(s) who ultimately owns or controls a customer and/or the person on whose behalf a transaction is being conducted. It also incorporates those persons who exercise ultimate effective control over a legal person or arrangement. The defining characteristic of the beneficial owner of an asset is that he holds a degree of control over the asset that allows him to benefit from it. Whether he is the legal owner (that is, holds legal title to it) is irrelevant. The essence of beneficial ownership is precisely not ownership in the ordinary sense of the word—but rather control. Control and legal title often will lie in the same hands.

 
NOTES & SUMMARY 13
 

Stopping the judicial sale of a ship

OPEN

Prior to the sale of a ship having been concluded by the Sheriff of Mumbai or the Marshal if the claimants claim is satisfied, the sale will not proceed if a written notice is given to this effect.

 
NOTES & SUMMARY 14
 

Sale proceeds of the property or ship, sold by court

OPEN

On order for valuation and sale of the property or ship is passed by the court, the terms and conditions for sale of the ship is thereafter finalised by the Sheriff or the Marshal in consultation with the parties. The ship is sold as per terms and conditions. On ship being sold to the highest bidder, the Sheriff or the Marshal shall receive the full sale price from the buyer as per schedule and terms setout by the Sheriff or the Marshal. This sale proceeds is invested by the Sheriff or the Marshal in a nominated bank account and is later transferred to the designated bank account of the High Court in the said Admiralty suit whereby the ship is sold

 
NOTES & SUMMARY 15
 

Tramp ship

OPEN

Tramp ship is a ship engaged in the tramp trade is one which does not have a fixed schedule or published ports of call. As opposed to freight liners, tramp ships trade on the spot market with no fixed schedule or itinerary/ports-of-call

 
NOTES & SUMMARY 16
 

Seafarer's rights on unpaid wages

OPEN

Crew employed on the ship are mainly based on their appointment letter or the contract and their rights depends on the terms and conditions stipulated therein. Seafarer's has a right to invoke admiralty action and arrest a ship for unpaid wages, moreso, the crew claims have priority over other claims.

 

NOTES & SUMMARY 17
 

Is India a better forum for Ship Arrest?

OPEN

Admiralty jurisdiction can be invoked for any of the claims as setout in section 4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 by filing a suit in the High Court in India having admiralty jurisdiction and obtaining an order of arrest of a ship. Admiralty suit can be filed when the ship is in Indian territorial waters being 12 nautical miles from the shore.

 

NOTES & SUMMARY 18
 

Charter Parties

OPEN OPEN

A charter party is a highly standardized written document that provides the contractual arrangements for one party (the charterer) to hire the carrying capacity of a vessel, either in whole or in part, owned by another party. Generally, charter parties are subject to the rules and requirements of contract law. Charter party forms are used worldwide, and many of them have been drafted to take into consideration the specific needs of particular trades. Other charter parties are more general in form and are not adapted to a specific trade.

 

   
PART IV - RULES, CONVENTIONS, ACTS, ORDERS, LANDMARK CASES, GLOSSARY AND MISCELLANEOUS  
APPENDIX 1
 

Bombay High Court Rules

OPEN

Rules for regulating the procedure and practice in cases brought before the Bombay High Court under Admiralty jurisdiction

 
APPENDIX 2
 

Madras High Court Rules

OPEN

Rules for regulating the procedure and practice in cases brought before the High Court of Judicature at Madras exercising Admiralty jurisdiction

 
APPENDIX 3
 

The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017

OPEN

The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam

 
APPENDIX 4
 

Admiralty Court Act, 1861

OPEN

Repealed. The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam

 
APPENDIX 5
 

Admiralty Court Act, 1890

OPEN

Repealed. An Act to amend the law respecting the exercise of Admiralty Jurisdiction

 
APPENDIX 6
 

Admiralty Court Act, 1891

OPEN

Repealed. An Act to declare certain Courts in [India] to be Colonial Courts of Admiralty

 
APPENDIX 7
 

The Major Port Trust Act, 1963

OPEN

An Act to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith

 
APPENDIX 8
 

The Indian Ports Act, 1908

OPEN

An Act to consolidate the enactments relating to Ports and Port-charges

 
APPENDIX 9
 

The Indian Bills of Lading Act, 1856

OPEN

An Act to amend the Law relating to Bills of Lading

 
APPENDIX 10
 

The York-Antwerp Rules, 2004

OPEN

The York-Antwerp Rules, 2004 recognises two main type of allowances, 'common safety allowances' and 'common benefit allowances'

 
APPENDIX 11
 

The Multi Modal Transportation of Goods Act, 1993

OPEN

An Act to provide for the regulation of the multimodal transportation of goods, from any place in India to a place outside India, on the basis of a multimodal transport contract and for matters connected therewith or incidental thereto

 
APPENDIX 12
 

The Indian Carriage of Goods by Sea Act, 1925

OPEN

An Act to amend the law with respect to the carriage of goods by sea

 
APPENDIX 13
 

The Merchant Shipping Act, 1958

OPEN

An Act to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board and a Shipping Development Fund, to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping

 
APPENDIX 14
 

Brussels Convention on Arrest of Ships

OPEN

Having recognised the desirability of determining by agreement certain uniform rules of law relating to the arrest of seagoing ships, have decided to conclude Brussels Convention on Arrest of Ship. The applicable law for ship arrest is the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

 
APPENDIX 15
 

Geneva Convention on Arrest of Ships

OPEN

The States Parties to this Convention, Recognizing the desirability of facilitating the harmonious and orderly development of world seaborne trade, Convinced of the necessity for a legal instrument establishing international uniformity in the field of arrest of ships which takes account of recent developments in related fields, The applicable law for ship arrest is the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

 
APPENDIX 16
 

Shipping Glossary

OPEN

Alphabetically arranged list of often difficult or specialised shipping words with their definition

 
APPENDIX 17
 

Frequently Asked Questions (FAQs) on Ship Arrest or Release

OPEN

Frequently asked question on Ship Arrest in India and Admiralty Laws of India

 
BCAS: 7103-1032 admiraltypractice.com