Chapter 2

Tenth Edition (2017)

Specific Jurisdiction and Jurisdiction in Admiralty

The Colonial Court of Admiralty Act of 1890 equated the High Courts of Bombay, Calcutta and Madras to the High Courts of England with regard to admiralty jurisdiction. Admiralty jurisdiction in India is governed by Admiralty Courts Act 1861 applied by (English) Colonial Courts of Admiralty Act 1890 and adopted by Colonial Courts of Admiralty (India) Act 1891. This state of affairs continued due to legislative inaction. Further Section 3 of the 1890 Act empowered the Colonial Legislature to enact law to declare any Court of unlimited jurisdiction to be a Colonial Court of Admiralty. As per this provision the Indian Legislature enacted the Colonial Courts of Admiralty established under the 1890 Act at Calcutta, Bombay and Madras. Their powers and jurisdiction were continued in the 1915 and 1935 Government of India Acts. The Admiralty jurisdiction of the High Courts continued even after the promulgation of the Constitution by virtue of Art.372 which provided for the continuance of existing laws. Though the Admiralty jurisdiction was extended to a considerable extent in England, it continued to be the same in India as per the 1861 Act.

Evolution of the admiralty jurisdiction in India can be traced back to the times of British presence in India when the three erstwhile Presidency High Courts i.e Calcutta, Bombay and Madras High Courts were declared to be Colonial Courts of Admiralty having the same jurisdiction in extent and quality as has vested in the High Court of England by the Admiralty Act 1861. The territorial sea as excerpted from the United Nations Convention on the Law of the Sea (UNCLOS) is that the sovereignty of a coastal state extends beyond its land territory and internal waters to an adjacent belt of sea, described as the territorial sea in the UNCLOS (Part II); this sovereignty extends to the air space over the territorial sea as well as its underlying seabed and subsoil; every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles; the normal baseline for measuring the breadth of the territorial sea is the mean low-water line along the coast as marked on large-scale charts officially recognized by the coastal state; the UNCLOS describes specific rules for archipelagic states.

The three Indian Courts of Admiralty i.e. Bombay, Calcutta and Madras were courts of specific jurisdiction (prior to the decision of m.v. Elizabeth) and, if a controversy does not come within their specific jurisdiction, they cannot entertain it and, in that respect, are unlike the courts of residuary jurisdiction such as common law courts or, in India, courts of ordinary original civil jurisdiction. The Admiralty jurisdiction of each of these courts is concurrent and territorially extends over the coast line of India. In the course of time the jurisdiction of the High Courts of Calcutta, Bombay, Madras, Gujarat, Andhra Pradesh and Orissa have entertained Admiralty actions.

The separate High Court for the State of Gujarat was established under section 28 of the Bombay Reorganisation Act of 1960. Gujarat High Court never had Admiralty jurisdiction but in the last few years the Ahmedabad High Court at Gujarat Admiralty actions are filed and in a recent judgment of this court it was held that to invoke Admiralty jurisdiction not only the vessel should be in Gujarat but also cause of action or part cause of action should arise in Gujarat as was decided by the single judge the Honble Mr. Justice Jayant Patel in June 2009 held in Fuji Trading (Singapore) Pte Ltd and in Quantum Marineworks Singapore Pte Ltd.

Admiralty jurisdiction is an essential aspect of judicial sovereignty which under the Constitution and the laws is exercised by the High Court as a superior court of record administering justice in relation to persons and things within its jurisdiction. Power to enforce claims against foreign ships is an essential attribute of admiralty jurisdiction and it is assumed over such ships while they are within the jurisdiction of the High Court by arresting and detaining them.

The Supreme Court in case of M.V. Elisabeth specifically made the Brussels Convention applicable for arrest of ship in exercise of admiralty jurisdiction by the High Court even though the said convention was not ratified by India. Similarly, the Supreme Court in the case of M.V. SEA SUCCESS I specifically made the Brussels Convention applicable for arrest of ship in exercise of admiralty jurisdiction by the High Court even though the said convention was not ratified by India.

One may invoke the admiralty jurisdiction for securing the arbitration as observed by the Full Bench of Bombay High Court in the case of O.J. Ocean Liner LLC v. M.V. Golden Progress & Anr.
 
The Indian Courts possessing Admiralty jurisdiction have jurisdiction over the following claims and to hear and determine any questions with regard thereto the claims as defined under Article 1 of the International Convention for the Unification of Certain Rules relating to the Arrest of Seagoing Ships, Brussels, May 10, 1952 and or under Article 1 of the International Convention on the Arrest of Ships, Geneva, March 12, 1999 as setout herein under:

Article 1 of the Brussels Arrest Convention
(a) damage caused by any ship either in collision or otherwise;
(b) loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship;
(c) salvage;
(d) agreement relating to the use or hire of any ship whether by charterparty or otherwise;
(e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;
(f) loss of or damage to goods including baggage carried in any ship;
(g) general average;
(h) bottomry;
(i) towage;
(j) pilotage;
(k) goods or materials wherever supplied to a ship for her operation or maintenance;
(l) construction, repair or equipment of any ship or dock charges and dues;
(m) wages of Masters, Officers, or crew;
(n) Masters disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or her owner;
(o) disputes as to the title to or ownership of any ship;
(p) disputes between co-owners of any ship as to the ownership, possession employment or earnings of that ship;
(q) the mortgage or hypothecation of any ship.

Article 1 of the Geneva Arrest Convention
(a) loss or damage caused by the operation of the ship;
(b) loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;
(c) 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;
(d) damage or threat of damage caused by the ship to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage; compensation for such damage; costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; and damage, costs, or loss of a similar nature to those identified in this subparagraph (d);
(e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of its crew;
(f) any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;
(g) any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charter party or otherwise;
(h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;
(i) general average;
(j) towage;
(k) pilotage;
(l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;
(m) construction, reconstruction, repair, converting or equipping of the ship;
(n) port, canal, dock, harbour and other waterway dues and charges;
(o) wages and other sums due to the master, officers and other members of the ship's complement in respect of their employment on the ship, including costs of repatriation and social insurance contributions payable on their behalf;
(p) disbursements incurred on behalf of the ship or its owners;
(q) insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the shipowner or demise charterer;
(r) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the shipowner or demise charterer;
(s) any dispute as to ownership or possession of the ship;
(t) any dispute between co-owners of the ship as to the employment or earnings of the ship;
(u) a mortgage or a "hypotheque" or a charge of the same nature on the ship;
(v) any dispute arising out of a contract for the sale of the ship.
 
 
BCAS: 7103-1001
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