A brief appraisal of the Indian Maritime System and its laws

India’s geographical position has contributed to it becoming an increasingly important seafaring nation for the world. India has had a glorious maritime history and tradition much before the rise of European maritime powers. Indian ships sailed across many seas for the purpose of carrying on trade mainly with Asia and Middle Eastern countries. Since the advent of British Rule, the development of indigenous shipping industry was discouraged because of preferential treatment given to British shipping. The British navigational laws and maritime jurisdiction was very restrictive, and hence, it hindered the growth and development. Indian shipping industry gradually disintegrated from the High Seas.

The British law was applicable to Indian ships trading in international sea voyages as these ships were required to be registered under U.K. Merchant Shipping Act and therefore, technically they were British Ships although registered in India. The Indian Merchant Shipping Law was vague and imprecise in that time. Between the years 1938 to 1947, the following legislation on merchant shipping were held the field (a) The Bombay Coasting Vessels Act, 1938 (b) The Indian Registration of Ships Act, 1841 (as amended in 1950); and (c) The Indian Merchant Shipping Act, 1923. The first of the three enactments referred to above dealt with regulations of seagoing vessels. The 1841 act embodied in it provisions relating to registration of sailing vessels. Both these enactments had, however, been so modeled as to apply only to small coasters and sailing vessels. The third Act, namely, the Indian Merchant Shipping Act, 1923 was fairly comprehensive. Indian Merchant Shipping Law consolidating the provisions of the earlier two acts was supplemented by passing of the Seamen (Litigation) Act, 1946 and Control of Indian Shipping Act, 1947. This Act had, however, only consolidated the laws on merchant shipping and it did not revise the law and therefore, was found wanting in many respects.

Immediately after the independence, to suit the requirements of a maritime country like India, the Merchant Shipping Act, 1958 was passed by the Indian Parliament. This Act had made good the main deficiency in the earlier laws that they did not provide for registration of what may be termed as Indian Ships. Certain enabling provisions were also incorporated in the Act to accelerate the pace of development of shipping in the post independence period. This Act is divided into 24 parts, each part dealing with specific aspects of merchant shipping like registration of ships , sailing vessels and fishing vessels, National Shipping Board, manning of ships, engagement, discharge and repatriation of seamen and apprentices, safety of passenger and cargo ships, control of Indian ships and ships engaged in the coasting trade, collisions, prevention and control of pollution of the sea by oil from ships, limitation of ship-owner’s liability, civil liability for oil pollution damage etc.

The Merchant Shipping (Amendment) Act, 2014 was passed recently wherein Maritime Labour Standards have been revised along with various other parts of the Merchant Shipping Act, 1958. Numerous Merchant Shipping Rules have been enforced by the Indian Government from time to time since 1960, and the most recent one being The Regulation of Entry Ships into (Ports, Anchorages and Offshore facilities) Rules, 2012. The Indian Carriage of Goods by Sea Act, 1925 [ as amended in the year 2000]; The Multimodal Transportation of Goods Act, 1993 (as amended in December, 2000); The Registration of Multimodal Transport Operators Rules, 1992 & MTD Rules, 1994; The Inland Vessels Act, 1917; The Indian Ports Act, etc have been passed in view of regulating the Indian maritime system.

The admiralty laws of different countries depend on its strategic maritime placement. It is not rooted in the country’s civil law system, although it substantially derives from it. This is because Admiralty laws have been made while considering the international aspect and the undergoing changes within several countries. Every country has a unique universal feature depending on their admiralty laws, and such features have to be given serious deliberations by admiralty courts throughout the world while considering any matter. Admiralty jurisdiction as a concept has been difficult to incorporate on an international basis, but just as important too.

If a suit is filed against a foreign ship which is owned by a foreign country having no business setup in India, it will be liable to be proceeded against on the admiralty side of the High Court and the cause of action will be said to have arisen by reason of a tort or a breach of obligation of carriage of goods from a port in India to a foreign port. In the past, statutory admiralty jurisdiction was held only by the High Courts of Calcutta, Madras and Bombay, however, later on by a judgment of Supreme Court, since the High Courts had Original and Appellate jurisdiction, as well as possessing inherent and plenary powers, the High Court was said to have unlimited jurisdiction, including the jurisdiction to determine their own powers.

After India attained independence, the Indian Parliament has so far not exercised its powers to make laws with respect to Admiralty and thus the three Indian High Courts were to apply Admiralty laws as it was applied by the English Court of Admiralty as defined in the Admiralty Court Act, 1861. The scope and nature of the Admiralty jurisdiction exercised by the High Courts in India have been examined and ascertained in various cases, the significant ones being - Kamlakar v. The Scindia Steam Navigation Co. Ltd; Rungta Sons Ltd. v. Owners and Master of Edison; National Co. Ltd. v. M. S. Asia Mariner.

The judicial sovereignty of this country is manifested in the jurisdiction vested in the High Courts as superior courts. The fact that the High Court continues to enjoy the same jurisdiction as it had immediately before the commencement of the Constitution, as stated in Art. 225, does not mean that a matter which is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt with by the High Court, subject to its own Rules, in exercise of its manifold jurisdiction, which is unless barred, unlimited.

The admiralty jurisdiction of the High Court was further consolidated by the Supreme Court of Judicature (Consolidation) Act, 1925 so as to include various matters such as any claim "for damage done by a ship", and claim 'arising out of an agreement relating to the use or hire of a ship'; or 'relating to the carriage of goods in a ship'; or "in tort in respect of goods carried in a ship".

The admiralty jurisdiction of the High Court was further widened by the Administration of Justice Act, 1956 so as to include not only the claims specified under Section 1(i) of Part I but also any other jurisdiction which either was vested in the High Court of Admiralty immediately before the date of commencement of the Supreme Court of Judicature Act, 1873 (i.e. November 1, 1875) or is conferred by or under an Act which came into operation on or after that date on the High Court as being a court with admiralty jurisdiction and any other jurisdiction connected with ships vested in the High Court apart from this section which is for the time being assigned by rules of court to the Probate, Divorce and Admiralty Division.

Sub-section (4) of Section 1 removed the restriction based on the ownership of the ship. By reason of Clauses (d), (g) and (h) of the said Section the jurisdiction in regard to question or claims specified under Section 1(i) included any claim for loss of or damage to goods carried in a ship, any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.

In the course of time the jurisdiction of the High Courts vested in all the divisions alike. The Indian High Courts after independence exercise the same jurisdiction.