Eleventh Edition (2018)

Preface

The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 was brought in force on April 1, 2018 repealing the obsolete Admiralty Courts Act of 1861. The jurisdiction with respect to maritime claims under the act vest with the respective High Courts and extends up to the territorial waters of their respective jurisdictions. The act also provides for central government extending their jurisdiction. The jurisdiction of the High Courts of Bombay, Calcutta, Madras, Gujarat, Hyderabad (for Andhra Pradesh and Telangana), Karnataka, Kerala, and Odisha have Admiralty actions. We are of the view that all High Courts having admiralty jurisdiction should be given Pan-India jurisdiction instead of restricting to State territorial waters of the respective High Courts. A ship sailing arrives to a port for a short period for loading and discharge of a cargo and then sails out for its onward destination either in India or outside India it is near impossible for the claimant to file an action for several reasons thereby frustrating the claimants claim. The new act is already working against the claimants because, the party initiating the suit invokes the Jurisdiction of the High court within whose territorial waters, the vessel is, which leaves the claimant vulnerable when the vessel sails out. If the vessel sails out to another port in India, it falls under the territorial Jurisdiction of another High Court and fresh proceedings to obtain an order of arrest or release will have to be initiated and the court fees will have to be deposited again without getting a refund from the previous court. More so, an order of withdrawal of the suit will have to be obtained so that fresh action can be initiated in that other state where the vessel has sailed and with paucity of time, instructing another law firm or a lawyer in that state and preparation for filing of the admiralty suit the vessel will move out of that state by the time an order of arrest is obtained. This frustrates the claimants claim and virtually make it impossible to initiate any legal action in India or file any admiralty suits.

A claimant who wishes to arrest a vessel for his genuine claim in the jurisdiction of a specific High Court would not be able to arrest the same vessel in the Jurisdiction of another High Court unless he has withdrawn his application in the previous jurisdiction, should the vessel leave the initial port before the Claimant has obtained the arrest order from the first High Court. In this way the vessel owner can dodge the claimant and escape arrest/liability and it is not possible for the claimant to chase the vessel.

Prior to the new Act, India was considered as one of the best jurisdiction for ship arrest work and had attracted claimants globally to initiate legal action in India. The admiralty jurisdiction of the High Court is dependent on the presence of the foreign ship in Indian waters and founded on the arrest of that ship. This jurisdiction can be assumed by the concerned High Court, whether or not the defendant resides or carries on business, or the cause of action arose wholly or in part, within the local limits of its jurisdiction.

The Act could have ideally granted that each of the High courts having admiralty jurisdiction should be given pan India jurisdiction instead of restricting and extending only up to the territorial waters of their respective jurisdictions. This act inclines more in the favor of ship owners and P&I Clubs protecting the vessel interest and making it almost impossible for the vessel to be arrested in Indian waters and ought to have taken under its purview, the claimants and petitioners.

Also, according to section 9, subsection (1) & (2), The limitation period has decreased from 3 years to 1 year in the case of maritime lien specified in sub-section (1) shall continue to exist on the vessel notwithstanding any change of ownership or of registration or of flag and shall be extinguished after expiry of a period of one year unless, prior to the expiry of such period, the vessel has been arrested or seized and such arrest or seizure has led to a forced sale by the High Court. The limitation period has decreased from 3 years to 2 years in the case of a claim under clause (a) of sub- section (1), the period shall be two years from the date on which the wage, sum, cost of repatriation or social insurance contribution, falls due or becomes payable. Needless to say that this works against the claimants and crew members because it restricts their chance to obtain justice and redress their grievance or get reimbursed for their loss.

Otherwise, the Act would be a great advancement to the maritime regime and jurisprudence in India.

Although the focal points of Ship Arrest in India and Admiralty Laws of India are admiralty laws and procedures, this eleventh edition book contains the entire gamut of admiralty edicts including ship arrest and substantive admiralty law prevalent in India, several new chapters are also introduced including procedures, summary and notes.

Ship Arrest in India was accessible for private use only is now available for free to all also sharing the content database of Maritime Practice in India. The online edition includes a research engine wherefrom you can search for reported or unreported Indian Admiralty court orders or judgments, articles. This book is about a subject that has been lurking in the scourges of darkness of Indian maritime history for many decades. It provides an in-depth insight into Indian Admiralty law and procedures, thus placing maritime and admiralty practice at the threshold of the legal fraternity.

This book is a compact, integrated guide to admiralty law and procedure in India. The primary purpose of this book is to better enlighten shipping and industry related professionals to take prompt and decisive decisions. We seek to clarify what the law requires, allow and prohibit, not to comment on how well it does so or whether what it should. We hope that this publication will contribute towards the realistic assessment and debate of the surrounding issues.

The book does not indulge exhaustively in any topic neither does it predicts any outcome of any particular case nor can it be considered as a substitute for competent legal counsel. Although we believe that the entire text is accurate at the time of publication, if it does not already fall short of this standard, it surely will with the passage of time.

This book is the first of its kind on admiralty laws published in India. Utility of the book with respect to a second central aim, to advance general understanding about the regulation of admiralty laws in India, is less apt to erode.


Shrikant Hathi (Dr) and Binita Hathi (Mrs)
Mumbai, India, July 15, 2018
 
BCAS: 7103-1001
admiraltypractice.com