INTRODUCTION
Maritime law is also known as Admiralty Law. In simple terms, it is a set of rules and regulations that govern matters related to the sea and ships. Admiralty law is a branch of law that deals with the problems and disputes that take place overseas. It deals with matters that include ships, trading and crimes that took place on open water. Under Admiralty Law, the law governing the maritime activities within the domestic framework and the activities that took place on the international water both are covered. Besides, it also deals with matters that include navigation, goods damaged during the transportation by sea, loss to the ship during the transportation by sea, etc. On 21st November 2016, “The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2016”[1] (“The Bill of 2016”) was introduced in Lok Sabha by Mr. Mansukh Mandaviya, Minister of State for Shipping. This Bill seeks to combine the existing laws on civil matters of Admiralty proceedings on maritime claims, Ship arrests, and Admiralty jurisdiction of courts. This Bill overrules laws such as the Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890.[2]
WHAT IS MEANT BY SHIP ARREST?
The Marine admiralty will have the jurisdiction to prevent a ship legally from its movement and trade until the action of the concerned court is decided.[3] So, as a ship travels around different parts of the world by carrying goods or individuals from one port to another, the issues may arise during their voyage and then they are entitled to the foreign state’s jurisdiction while they enter into that foreign state. If a ship violates the rules and regulations, safety measures or any other cause then that ship will be arrested or detained by the concerned authorities of the foreign state.
The main purposes to arrest a ship are:[4]
- In order to acquire the jurisdiction;
- For the execution of a decree;
- To acquire any security in order to get the satisfaction of the claim.
SHIP ARREST UNDER ADMIRALTY BILL, 2016
According to this Bill, the term ‘arrest’ doesn’t only refer to the security taken away from the ship and its owner but a mere seizure of the ship as per the order of the High Court. The term ‘vessel’ was explained in this bill under the provision of Section 2(1)(l),[5] where it also mentioned its synonyms like a ship, boat, sailing vessel, offshore industry mobile unit, hovercraft, floating vessel. Admiralty Jurisdiction can be exercised by the High Courts of Bombay, Calcutta, Madras, Andhra Pradesh, Orissa, Karnataka and Kerala, under the Bill of 2016, where this statute has codified the maritime claims heads for which a ship can be arrested.
Unless a Caveat is filed against an arrest, the arrest application of a ship is made ex parte. The ship will be given an order to be arrested if the court is satisfied at prima-facie and basically, the security will be based on the claimant’s arguments in the case. The court also holds that the ship arrest is not maintainable as the ship could be released in case if an application is made on behalf of the ship. The ship can also be released with provided security in the form of a bank guarantee or cash deposit made within the registry. The High Court is permitted to auction the ship within 45 days from the arrest date, in case if the security is not enhanced. This Bill codifies maritime claims and maritime lien under which ships can be arrested. The claimant can seek ship arrest in another way i.e., through execution of a decree passed by any Superior Court of any reciprocating region of a foreign state. However, the original claim was a maritime claim. Other than the ship arrest there is no separate freezing order.
Under the order of the concerned High Court exercising admiralty jurisdiction as provided under Section 4 of the Admiralty Bill, 2016,[6] there are certain claims provided under the bill based on the ship or vessel arrest. The claims are mostly pecuniary in nature. Therefore, it can be stated that the shipping industry is one of the best contributors to the economy where even the claims under ship arrests will also be only in economic nature. Irrespective of the flag a ship can be arrested in the Indian territorial waters and this is to ensure the uniformity in the law that is enforceable and also treats everyone with equity. Concerning the maritime claims and maritime lien, there is a difference in arresting a ship. As maritime lien continuous to exist on the ship despite the ownership changes, registration or of the flag. If the court gives an order of ship arrest, then it retains jurisdiction to adjudicate the substantive claim unless the arrest order is cancelled as the court being satisfied with the application made on behalf of the shipowner that the arrest is not maintainable. If a valid arbitration agreement exists between the parties, the court would stay the suit in which the security may or may not be retained.
Irrespective of the debtor of the ship, they can arrest a ship. Besides, the ship can also be arrested through its belongs to the government or any foreign state. This ensures that there is no point of injustice while dealing with maritime claims and problems. It is also necessary to be aware of the sister ships as it is mentioned under the bill that a sister ship of the same owner can be arrested but those ships associated with ownership cannot be arrested. Today, India attracts claimants across the world to initiate legal action as India is considered to be one of the best jurisdictions for ship arrests.
Instead of restricting and extending only up to the territorial waters of their respective jurisdictions, the bill could have granted each High Court having Admiralty Jurisdiction to have pan India Jurisdiction. The Bill majorly favours the ship owners and P&I Clubs. So, it is needed to take under its purview, the claimants. The bill needs to be reviewed and reconsidered in order to get justice and fair judgement as there are few serious defects including limitation periods that go against the claimants and crew. It should be brought to the notice of those in favour of the bill that bringing law even after more than 100 years later, a few things were left uncertain, though the bill aims to change the aged laws which are considered as a hindrance ineffective governance.
CONCLUSION
The concept of ship arrests is a big subjective matter which was majorly discussed in the Admiralty Bill, 2016. Every nation must have sea laws in order to avoid disputes, wrongful arrests and mismanagements in waters. Provisions of ship arrests in the Bill has both advantages and disadvantages. Besides, the Bill deals with the claims and procedure of ship arrests. The Bill should be reconsidered as it ensured equality and justice but, in a few provisions, it lacked them.
Author(s) Name: Jetti Vaishnavi (Damodaram Sanjivayya National Law University, Visakhapatnam)
References:
[1] The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2016, Bill No. 258 of 2016.
[2] The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2016 (PRS Legislative Research, 3rd July, 2021), https://prsindia.org/billtrack/the-admiralty-jurisdiction-and-settlement-of-maritime-claims-bill-2016.
[3] Concept of ship arrests in India & maritime law (Helpline Law, 3rd July, 2021) https://www.helplinelaw.com/govt-agencies-and-taxation/CONSAIM/concept-of-ship-arrests-in-india-and-maritime-law.html.
[4] Ibid.
[5] The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2016, § 2(1)(l), No. 258 of 2016.
[6] The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2016, § 4, No. 258 of 2016.
