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PART I - JURISDICTION IN
ADMIRALTY
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CHAPTER
1
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History and Admiralty Jurisdiction of the High
Courts
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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.
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CHAPTER
2
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Admiralty Courts in India
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The jurisdiction of the High Courts of
Bombay, Calcutta, Madras, Gujarat, Andhra
Pradesh, Telangana, Karnataka, Kerala, and Odisha have Admiralty
actions.
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CHAPTER
3
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Specific Jurisdiction and Jurisdiction in Admiralty
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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.
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CHAPTER
4
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Exercise of the Admiralty Jurisdiction
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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.
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CHAPTER
5
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In Rem and Personam Actions
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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.
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CHAPTER
6
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Order of Priority of Maritime Claims
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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.
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CHAPTER
7
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Maritime Claims and Analysis
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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.
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CHAPTER
8
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Maritime Lien and Analysis
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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.
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CHAPTER
9
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Title, Possession, Ownership, Employment or
Earnings of a Ship
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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.
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CHAPTER
10
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Mortgage or a Charge
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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.
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CHAPTER
11
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Loss or Damage done by any Ship
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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.
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CHAPTER
12
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Loss of Life or Personal Injury
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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.
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CHAPTER
13
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Loss or Damage to or in connection with any Goods
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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.
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CHAPTER
14
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Claims relating to Cargo or Passenger on board and Contract of Affreightment
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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.
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CHAPTER
15
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Use or Hire of any Ship
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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.
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CHAPTER
16
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Salvage
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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.
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CHAPTER
17
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Towage
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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.
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CHAPTER
18
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Pilotage
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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.
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CHAPTER
19
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Supplies or Services rendered to
any Ship
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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.
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CHAPTER
20
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Construction, Repair or Equipment of any Ship
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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.
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CHAPTER
21
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Port, Harbour, Canal, Dock, Tolls, Waterway Charges
and Dues
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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.
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CHAPTER
22
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Wages
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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.
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CHAPTER
23
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Disbursements
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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.
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CHAPTER
24
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General Average or Average
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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.
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CHAPTER
25
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Dispute under Contract for the Sale of Vessel
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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.
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CHAPTER
26
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Insurance Premium
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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.
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CHAPTER
27
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Commission, Brokerage or Agency Fees
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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.
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CHAPTER
28
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Damage or Threat to Environment
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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).
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CHAPTER
29
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Environment; Cost or Expenses relating to
Wrecked, Stranded, Abandoned and Sunken Ship
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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.
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CHAPTER
30
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Forfeitures
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A ship is liable to be forfeited under section
33, 35, 68 and 69 (Part V) of the Merchant
Shipping Act 1958
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CHAPTER
31
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Publicly Owned Ship and Foreign State Owned
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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.
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CHAPTER
32
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Arrest and Buyers Rights in Auction
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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.
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CHAPTER
33
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Ship and Sisterships
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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.
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CHAPTER
34
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Claimants Undertaking
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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.
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PART II - SHIP ARREST, RELEASE
& ADMIRALTY PRACTICE
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CHAPTER
35
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Arrest of Ship
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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
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CHAPTER
36
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International Convention for Arrest of Ships
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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.
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CHAPTER
37
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Caveat Against Arrest
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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.
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CHAPTER
38
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Execution of arrest warrant
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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
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CHAPTER
39
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Sheriff or the Marshal
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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.
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CHAPTER
40
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Property (Ship) under arrest and its effect
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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
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CHAPTER
41
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Arrest of a ship does not include cargo
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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
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CHAPTER
42
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Arrest of cargo does not include ship
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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.
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CHAPTER
43
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Caveat against Release and Payment
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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.”.
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CHAPTER
44
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Arrested ship affecting port operation
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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
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CHAPTER
45
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Possessory Lien
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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.
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CHAPTER
46
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Security for Release of a Ship
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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
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CHAPTER
47
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Release of Arrested Property (Ship)
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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)
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CHAPTER
48
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Wrongful Arrest
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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
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CHAPTER
49
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Applicable Law
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The applicable law for ship arrest is the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.
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CHAPTER
50
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Admiralty Suit and Pleadings
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Plaint, Judges Order, Undertaking, Warrant of Arrest etc
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CHAPTER
51
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Application for Arrest
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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
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CHAPTER
52
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Order of Arrest and Warrant of Arrest
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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
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CHAPTER
53
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Admiralty Rules
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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
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CHAPTER
54
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Procedure for Ship Arrest
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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
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CHAPTER
55
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Presence of a Ship (Res) at the time of filing
of Admiralty Suit
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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.
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CHAPTER
56
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Indian Flag Ship
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Ship flying Indian flag can be arrested by
invoking admiralty jurisdiction
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CHAPTER
57
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Mareva Injunction
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There is no provision in the law of India for
Mareva injunction
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CHAPTER
58
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Attachment before Judgment
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"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
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CHAPTER
59
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Arresting Ship to obtain Security for Arbitral
Award or Court Judgment
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A ship may be arrested for the purpose of
obtaining security notwithstanding that, by
virtue of a jurisdiction clause or arbitration
clause
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CHAPTER
60
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Effect of Arbitration Clause on Arrest
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Arbitration clause in the Charter Party
Agreement or Bill of Lading are given effect
to.
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CHAPTER
61
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Arbitration
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Claimant has no right to arrest
a ship in respect of a dispute arising under a
contract, which contains an arbitration
clause
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CHAPTER
62
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Lay Time
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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
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CHAPTER
63
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Claims Payable in Foreign Currency
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A sum of money expressed in a foreign currency
can legitimately be claimed by the plaintiff
and decreed by the court
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CHAPTER
64
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Interest
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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
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CHAPTER
65
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Limitation Periods, Time Bar
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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
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CHAPTER
66
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Security for Costs and Damages
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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
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CHAPTER
67
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Counter Security
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The High court having admiralty jurisdiction
has discretionary power to pass order for
counter security if required
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CHAPTER
68
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Costs
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The court has the discretionary power to accept
or reject the costs
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CHAPTER
69
|
|
Writ of Summons
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A writ of summons on the vessel may not be
required if warrant of arrest is properly
served on the vessel
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CHAPTER
70
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|
Carrier's Identity
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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
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CHAPTER
71
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|
Crew on Board after Arrest of Ship
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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
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CHAPTER
72
|
|
Claims relating to Cargo
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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.
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CHAPTER
73
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|
Claims for Unpaid Bunker Dues
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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.
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CHAPTER
74
|
|
Collision Actions
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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.
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CHAPTER
75
|
|
Restrictions to invoke Admiralty Jurisdiction
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There are restrictions to invoke Admiralty
Jurisdiction on issues such as arbitration,
publicly owned ship, ship owned by government
of foreign state, collision
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CHAPTER
76
|
|
Appeals
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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
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CHAPTER
77
|
|
Execution of Foreign Decree
|
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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
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CHAPTER
78
|
|
Beaching of a Ship for Demolition
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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.
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CHAPTER
79
|
|
Indian Territorial Waters for Ship Arrest
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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).
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CHAPTER
80
|
|
One Ship Company
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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
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CHAPTER
81
|
|
State-Wise Ship Arrest
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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.
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CHAPTER
82
|
|
Piercing the Corporate Veil
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Corporate veil can be lifted to establish
beneficial ownership for the purpose of
arresting a sister vessel-ship but should be
supported with evidence
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CHAPTER
83
|
|
Enforced Sale of the Ship
|
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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
|
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CHAPTER
84
|
|
Appraisement and Judicial Sale
|
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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
|
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CHAPTER
85
|
|
Condition of Sale
|
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The sale is free and clear of all maritime or
other liens and encumbrances
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CHAPTER
86
|
|
Sheriffs Poundage
|
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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
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CHAPTER
87
|
|
Detaining vessel under Merchant Shipping Act
|
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Ship can be detained under section 443, 444 of
the Merchant Shipping Act
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|
CHAPTER
88
|
|
Indian Ships, Registration
|
[OPEN]
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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
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|
|
|
PART III - NOTES &
SUMMARY
|
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NOTES & SUMMARY
1
|
|
Rearrest and Multiple Arrest
|
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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.
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NOTES & SUMMARY
2
|
|
Jurisdiction after the ship has sailed
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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.
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NOTES & SUMMARY
3
|
|
Jurisdiction before the arrival of the ship
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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.
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NOTES & SUMMARY
4
|
|
Trading of a ship under arrest
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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.
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NOTES & SUMMARY
5
|
|
Recognition and Enforcement of Judgments
|
[OPEN]
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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.
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NOTES & SUMMARY
6
|
|
Same Cause of Action and between the same
parties
|
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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.
|
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NOTES & SUMMARY
7
|
|
Forum Non-Conveniens
|
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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.
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NOTES & SUMMARY
8
|
|
Foreign government ship
|
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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.
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NOTES & SUMMARY
9
|
|
Ship for demolition
|
[OPEN]
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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.
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NOTES & SUMMARY
10
|
|
Indian courts having admiralty jurisdiction
|
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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.
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NOTES & SUMMARY
11
|
|
Recognition and Enforcement of Arbitral
Awards
|
[OPEN]
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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.
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NOTES & SUMMARY
12
|
|
Beneficial Owner
|
[OPEN]
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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.
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NOTES & SUMMARY
13
|
|
Stopping the judicial sale of a ship
|
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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.
|
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NOTES & SUMMARY
14
|
|
Sale proceeds of the property or ship, sold
by court
|
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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
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NOTES & SUMMARY
15
|
|
Tramp ship
|
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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
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NOTES & SUMMARY
16
|
|
Seafarer's rights on unpaid wages
|
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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.
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NOTES & SUMMARY
17
|
|
Is India a better forum for Ship Arrest?
|
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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.
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NOTES & SUMMARY
18
|
|
Charter Parties
|
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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.
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PART IV - RULES, CONVENTIONS,
ACTS, ORDERS, LANDMARK CASES, GLOSSARY AND
MISCELLANEOUS
|
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APPENDIX
1
|
|
Bombay High Court Rules
|
[OPEN]
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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]
[PDF]
|
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]
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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]
[PDF]
|
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
|
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APPENDIX
5
|
|
Admiralty Court Act, 1890
|
[OPEN]
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Repealed. An Act to amend the law respecting the exercise
of Admiralty Jurisdiction
|
|
APPENDIX
6
|
|
Admiralty Court Act, 1891
|
[OPEN]
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|
Repealed. An Act to declare certain Courts in [India] to
be Colonial Courts of Admiralty
|
|
APPENDIX
7
|
|
The Major Port Trust Act, 1963
|
[OPEN]
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|
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]
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|
An Act to consolidate the enactments relating
to Ports and Port-charges
|
|
APPENDIX
9
|
|
The Indian Bills of Lading Act, 1856
|
[OPEN]
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|
An Act to amend the Law relating to Bills of
Lading
|
|
APPENDIX
10
|
|
The York-Antwerp Rules, 2004
|
[OPEN]
[PDF]
|
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]
[PDF]
|
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]
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|
An Act to amend the law with respect to the
carriage of goods by sea
|
|
APPENDIX
13
|
|
The Merchant Shipping Act, 1958
|
[OPEN]
[PDF]
|
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]
[PDF]
|
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]
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|
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]
[PDF]
|
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]
[PDF]
|
Frequently asked question on Ship Arrest in India and Admiralty Laws of India
|
|