India has a rich maritime history spanning several decades. India had trade relations with various countries even before the British Rule. The goods were usually traded in large ships that used to sail across various international waters. After the arrival of the British in India, the existing maritime industry in India experienced a setback. Under the British Law, Indian Ships were required to be registered under the U.K Merchant Shipping Act that took away all the control from Indians. With the advent of time and advancement in political power, India has experienced commendable growth in the Maritime Sector. It has Maritime boundaries with countries like Thailand, Maldives, Sri Lanka, Indonesia, Myanmar and the adjoining country Bangladesh. India has one of the most organized shipping fleets in the world with over 90% of the total trade being done by sea routes. [1]
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Development
The existing maritime laws in India are a modification of the laws drafted in the colonial time i.e. the Admiralty Offences (Colonial) Act of 1849, the Inland Steaming Vessels Act, 1917; the Coasting Vessels Act of 1838; the Indian Registration of Ships Act (1841) Amendment Act, 1850; the Indian Registration of Ships Act of 1841; the Indian Ports Act of 1908 to name a few. In addition, several legislations were promulgated by the British Parliament between 1823 to 1940, which were regarded as the authority to govern various aspects of Indian shipping which included liability of a ship owner, salvage, seafarers’ certifications, safety and load line conventions.
The admiralty jurisdiction of the Indian Courts was introduced with the Letters Patent Act of 1862, which gave jurisdiction to the High Courts of Madras Bombay and Fort William in Bengal for the trial and adjudication of maritime issues in India.
Even after attaining independence, the authority of the Indian Admiralty Courts was limited to the claims described in the British legislation mentioned above, however in 1993, the Hon’ble Supreme Court of India in the case of M. v. Elisabeth[2] stated that in cases where a particular statute remains silent and judicial intervention is required, the High Courts have the plenary powers to decide the jurisdiction based on the principles of natural justice, equity and good conscience. Since there was no Indian Statute governing the Courts’ jurisdiction in regard to maritime claims, the principles of International Convention on Maritime Laws were accepted by India in place of the British legislations. A new bill for an Admiralty Act, 2005, was circulated by the Government of India in 2005, which was enacted to repeal the outdated British laws and bring in an exhaustive Indian law governing claims, jurisdiction, procedure and conflicts arising from maritime activities. The bill however, never obtained the approval of the President of India till date.
History
Carriage of Goods by Sea Act, 1925
The Carriage of Goods by Sea Act (CGSA) was passed as a result of the Brussels Convention. It is based on the recommendations of the International Maritime Law Conference, which took place in Brussels in 1922. The conference drafted a Draft Convention to be ratified by the world’s leading maritime nations. The main purpose of this Convention was to ensure the uniformity of the laws on the rights and responsibilities of carriers by sea and the laws on lading charges.[3] It regulates the carriage of goods by sea from a port of India to any other port in or outside India. The agreement of carrying such goods from a port to another is known as the “Contract of Affreightment” and is generally concluded between the Shipowner and the Shipper. The CGSA extends to the carriage by sea of goods pursuant to lading bills from a port in India to any other port in or outside India. It also imposes on the carrier of the goods several duties.
https://effectivelaws.com/rights-liabilities-of-buyer-and-seller/
These duties are-
-Duty to make sure that the ship is fit to venture into the sea and is equipped with all the necessary equipment at the beginning of the voyage[4],
-Ensure that the goods are properly loaded and discharged at the appropriate destination[5], and
-The carrier or the master agent of the carrier shall, on demand, be duty bound to issue a bill of lading to the shipper after receiving the goods.
Article III of the CGSA, 1925 further states the rules regarding the carrier’s liabilities of the goods. These are-
- Damage resulting from the unseaworthiness of a ship shall not make the owner of the ship responsible unless such damage results from the failure of the owner of the ship to perform the prescribed duties.
- The shipper shall not be liable without an act of negligence or neglect of the shipper for any loss or damage caused by the carrier or the ship.
- The carrier shall not be accountable for any loss or harm that arises from the following- failure or inability of the in charge of the carrier to navigate and maintain the ship; loss from fire except if it is caused by the fault or privacy of the carrier; risk and accidents in the sea or other navigable waters; an act of God; war; public enemies; arrest of princes; strikes or lockouts; disturbances or disturbances.[6]
- The carrier shall not be made liable for any harm caused to goods exceeding £ 100 or equivalent, unless the shipper has stated the quality and value of such goods and included them in the lading bill.[7]
- A carrier is free to surrender all or any of its rights in full or in part and to raise its obligations and liabilities, provided that such surrender or raise is included in the lading bill given to the shipper.[8]
- The carrier and the ship shall be excluded from all responsibility for loss or injury unless a suit is brought within one year of the goods being shipped or the date on which the goods were to be shipped.
Merchant Shipping Act, 1958
It is a comprehensive Act laying down various provisions on the establishment of a National Shipping Board, Indian shipping administration, ship registration procedures, ownership of Indian vessels, certification processes, etc. It is divided into various parts. Part I deals with preliminary elements like title and commencement. Part II mentions the establishment. Power and function of the National Shipping Board. Part III deals with the establishment of a mercantile marine Department and shipping offices etc. Part IV, V and VI talks about registration of ships and shipping officers and the establishment of Development committees. Part IX of the Act mentions the various provisions relating to safety. Some of the provisions in Part XI further deals with the avoidance of sea pollution by discharging oil mixtures. The Central Government’s powers, as well as the regulations relating to salvage and wrecking, the appointment of examiners and penalties for breach of the procedures specified are also set out in the Act.
Further in the landmark case of British India Stream Navigation Co. v. Shanmughavilas Cashew Industries[9], the Hon’ble Supreme Court of India observed that, a law usually applies territorially, across the nation and to the territorial waters, unless specified otherwise. The Indian Parliament is not empowered to legislate on foreign vessels and foreigners on the high seas within them. Our legislative provisions, expressed in general terms, shall not deprive foreign vessels or their owners of their rights unless they provide that they are to be covered by a foreign vessel entering the Indian port or territorial waters. Therefore, Indian laws are ineffective against foreign property outside its control. Section 2(2) of the Indian Merchants Shipping Act also covers this principle.
Admiralty Jurisdiction
Admiralty Jurisdiction is covered under Section 2 of the IPC[10]. It refers to the authority of the courts to deal with, and the procedures for dealing with, maritime claims. It includes the arrest of ships, the assessment of priority and liability claims, and so on. In order to allow the plaintiff to approach the Admiralty Court for the arrest of the vessel of the defendant in respect of a maritime allegation, one has to bring a substantive suit before the Admiralty Court concerned, while the vessel was within the territorial limits. Admiralty Jurisdiction is exercised in the following cases-
- Offences committed by Indian ships on the high seas;
- Offences committed on foreign ships within Indian territorial waters
The owner of the vessel must approach the court for court proceedings following the capture of the vessel, and the case will then be resolved. Maritime laws are not static and continue to adapt themselves and revamp their mechanisms according to the evolving needs of seaside trading practices.
Conclusion
In the field of development, laws related to maritime and laws regulating trade and trade by water play an important role, as they are one of the main areas in which our country generates its income for economic development purposes.[11] The reality remains, however, that there are no specific rules on the maintenance of vessels, primarily those used for the trade and export of products to other parts of the world. One major example is that of Alang port in Gujarat. It is the largest ship breaking yard in the world. There has been a sharp increase in the number of threats posed by the ship breaking yard to the marine environment and labourers working there with the growth in the yard’s popularity around the world. India has very ineffective marine environmental conservation policies, unlike other nations, which have contributed to irreversible damage to the surrounding flora and fauna. Several magnificent coral reefs near the Indian coast have been totally ruined and Haywire has lost the marine life of the affected area.[12]. The State Maritime Boards must provide an appropriate management system for the repair and breaking of ships in order to ensure that the level of fitness of the ships remains unchanged and that appropriate procedures for the repair of the ships are in place to result in an increase in sea trade and trade within the country and outside the country.
References
[1] “Codifying Maritime Laws in India”, available at: http://www.mindtext.org/view/88/Codifying_Maritime_Laws_in_India/ (last accessed on 11th January, 2013).
[2] AIR 1993 SC 1014.
[3] Ibid.
[4] The Carriage of Goods by Sea Act (Act no. 26 of 1925),art.3.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] (1990) 3 SCC 481.
[10] The Indian Penal Code (Act no. 45 of 1860), s.2.
[11] Shipping Industry & Ports in India, available at: https://www.ibef.org/industry/ports-india-shipping.aspx (last visited on Oct 21, 2020).
[12] Raunek, “Alang, Gujarat: The World’s Biggest Ship Breaking Yard & A Dangerous Environmental Time Bomb” Marine Insight, Dec 24, 2019, available at: https://www.marineinsight.com/environment/alang-gujarat-the-world%E2%80%99s-biggest-ship-breaking-yard-a-dangerous-environmental-time-bomb/ .
BY PRITHA LAHIRI | INSTITUTE OF LAW, NIRMA UNIVERSITY