Full Judgment Text
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PETITIONER:
M.V. ELISABETH AND ORS.
Vs.
RESPONDENT:
HARWAN INVESTMENT AND TRADING PVT. LTD., HANOEKARHOUSE, SWAT
DATE OF JUDGMENT26/02/1992
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SAHAI, R.M. (J)
CITATION:
1993 AIR 1014 1992 SCR (1)1003
1993 SCC Supl. (2) 433 JT 1992 (2) 65
1992 SCALE (1)490
ACT:
Constitution of India, 1950:
Articles 215, 225 and 226-Admiralty jurisdiction of High
Courts-Claims against foreign vessel-Cargo going out of
India-Action in rem-Inherent jurisdiction-Whether extends to
claim relating inward and outward cargo-Whether extends to
such foreign vessel and the arrest thereof.
Article 372:
Recommendations of Law Commission relating to
comprehensive Law on courts of admiralty-No subsequent
legislation passed-Continue to be governed by legislations
enacted for colonies by British Parliament-Urgent need for
legislative action-Stressed.
Andhra State Act, 1953:
Section 30,52-Admiralty jurisdiction of the High Court-
Concept and continuance of-Whether the admiralty
jurisdiction extends to a foreign vessel in respect of claim
relating to carriage of goods from Indian port to foreign
port.
Merchant Shipping Act, 1958:
Section 3(15), 443 and 444-Detention of foreign vessel-
‘Damage’-What is-Whether confined to physical damage or wide
enough to include all maritime claims.
Admiralty Court Act, 1861:
Admiralty jurisdiction-Applicability in India-Powers of
admiralty courts-Whether frozen as on the date of the
passing of the Act-Subsequent changes in law-Effect of-Need
for updating and enacting new legislation keeping in view
the rights of citizens of Indian Sovereign Republic.
1004
Words & Phrases:
‘Damage’ occurring in Section 443 of the Merchant
Shipping Act, 1958-Meaning of.
HEADNOTE:
The appellant vessel, which was lying in the port of
Marmagao, left the port without issuing bills of lading or
other documents required by the Respondent company for the
goods shipped by it. On reaching the port of destination,
despite the direction of the respondent company not to
deliver the goods by reason of the buyer’s failure to pay
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the agreed price, the appellants handed over the goods to
the consignee. Since the appellants acted in breach of duty
thereby committing conversion of the goods entrusted to
them, the respondent instituted a suit against the
appellants invoking the admiralty jurisdiction of the Andhra
Pradesh High Court by means of an action in rem. The vessel
was arrested when it entered the port of Vishakapatnam, and
later released on the owner’s furnishing security by way of
Bank guarantee.
In the proceedings before the High Court, the appellant
raised a preliminary objection as to jurisdiction stating
that the suit against a foreign ship owned by a foreign
company not having a place of residence or business in
India, could not proceed on the admiralty side of the High
Court by an action in rem in respect of a cause of action by
reason of a tort or a breach of obligation arising from the
carriage of goods from an Indian port to a foreign port.
This objection was overruled by a Single Judge of the High
court and later confirmed by a Division Bench, against which
the present appeal has been preferred.
Finally the suit was decreed by a Single Judge and the
appeal therefrom is the subject matter of the other matter
before this Court, viz., the Transfer Petition.
On behalf of the appellants it was contended that the
power of the High Court on the admiralty side was confined
to the provisions of the Admiralty Court Act, 1861 made
applicable to India by the Colonial Courts of Admiralty Act,
1890 read with the Colonial Courts of Admiralty (India) Act,
1891 declaring certain Courts of unlimited civil
jurisdiction as Colonial Courts of Admiralty, but it
remained frozen as on the date of Admiralty Court Act, 1861;
that the wide powers assumed by the British Courts under the
subsequent statutes of that country did not enlarge the
1005
admiralty jurisdiction of the High Court in India; that
section 6 of the Admiralty Court Act, 1861, the only
provision relating to cargo, confined itself to inward cargo
only, and therefore the case did not fall under the ambit of
section 6 of the Act; and that the arrest of the vessel in
purported exercise of admiralty jurisdiction in rem
concerning a claim relating to outward cargo, was null and
void.
On behalf of the respondents it was contended that every
person has a right to approach the Court of the land for
appropriate remedy in respect of claims against a foreign
ship and its owner, and to deny him that right and to compel
him to pursue remedy in a foreign country according to an
unfamiliar system of law and practice in strange and
uncertain conditions and consequently incurring high
expenses with all the uncertainties of such a pursuit, was
unjust and uncalled for; that all major systems of law the
world over recognise the competence of the coastal State to
assume jurisdiction over a foreign ship entering its
waters in respect of certain well recognised claims,
irrespective of where the cause of action arose or where the
defendant has his place of residence or business; that the
reason for such wide jurisdiction being the non-availability
of the foreign owner within the local jurisdiction, and the
stay of the foreign ship in the waters of the coastal State
being necessarily brief, jurisdiction over the ship has to
be exercised by its arrest and detention by means of an
action in rem; that the High Court being a court of record
with unlimited jurisdiction, it was never intended by the
British Parliament that the admiralty power conferred on
certain High Courts should remain frozen as on the date of
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the passing of the Admiralty Court Act, 1861 and that the
subsequent changes in the law of Great Britain should not
widen the jurisdiction of the Indian High Courts; and that
the colonial statutes should not be so construed as to stand
in the way of the Indian High Courts exercising unlimited
jurisdiction except where the jurisdiction is barred
expressly or by necessary implication.
Dismissing the appeal and returning the Transferred Case
to the High Court, this Court,
HELD : (By the court) :
The High Court of Andhra Pradesh undoubtedly possesses
jurisdiction over claims relating to inward and outward
cargo. Therefore the High Court rightly assumed jurisdiction
by the arrest of the appellant vessel
1006
while it was lying in the port of Vishakhapatnam.
(Per Thommen, J) :
1. The Andhra Pradesh High Court is the successor to the
Madras High Court in respect of the territories transferred
from Madras and included in the State of Andhra which was
formed by the Andhra State Act, 1953. In the port of
Vishakhapatnam the Andhra Pradesh High Court has thus the
same jurisdiction as was vested in the Madras High Court
prior to the transfer of that territory. [1021D; 1022A]
2.1. 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 Article 225
of the Constitution 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 unless barred,
is unlimited. To the extent not barred expressly or by
necessary implication, the judicial sovereignty of this
country is manifested in the jurisdiction vested in the High
Courts as superior courts. [1024E,F].
2.2. It is true that the Colonial statutes continue to
remain in force by reason of Article 372 of the Constitution
of India, but that does not stultify the growth of law or
blinker its vision or fetter its arms. Legislation has
always marched behind time, but it is the duty of the Court
to expound and fashion the law for the present and the
future to meet the ends of justice. [1026B,C]
Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co.
Ltd., AIR 1961 Bombay 186; Mrs. Sahida Ismail v. Petko R.
Salvejkov & Ors., AIR 1973 Bombay 18; Jayaswal Shipping
Company v. S.S. Leelavati, AIR 1954 Calcutta 415; Rungta
Sons Pvt. Ltd. & Anr. v. S.S. Edison Mariner & Anr., 1961 -
62 (66) Calcutta Weekly Notes 1983; Smt. Reena Padhi v.
Jagdhir, AIR 1982 Orissa 57; National Co. Ltd. v. Asia
Mariner, 72 CWN 635, overruled.
3. What the Colonial Courts of Admiralty Act, 1890 did
was not to incorporate any particular English Statute into
Indian law for the purpose of conferrring admiralty
jurisdiction, but to assimilate the competent Courts in
India to the position of the English High Court in the
exercise
1007
of admiralty jurisdiction. It would, therefore, appear that
any expansion of Admiralty jurisdiction of the High Court
in English was intended likewise to expand the jurisdiction
of the Colonial Courts of Admiralty. This should have been
regarded as the position with respect to a Colonial Court of
unlimited jurisdiction. [1027H; 1028A,B]
The Yuri Maru v. The Woron, [1927] AC 906, referred to.
4. It was because of the unlimited civil jurisdiction
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that was already vested in the High Courts that they were
declared to be Colonial Courts of Admiralty having the same
jurisdiction in extent and quality as was vested in the High
Court of England by virtue of any statute or custom. The
High Courts were declared to be competent to regulate their
procedure and practice in exercise of admiralty jurisdiction
in accordance with the Rules made in that behalf. There is,
therefore, neither reason nor logic in imposing a fetter on
the jurisdiction of these High Courts by limiting it to the
provisions of an imperial statute of 1861 and freezing any
further growth of jurisdiction. This is all the more true
because the Admiralty Court Act, 1861 was in substance
repealed in England a long time ago. [1029F-H]
Halsbury’s Laws of England, 4the Ed. Vol. 1(1), para
307; Halsbury’s Statutes of England, Vol. 1, para 9,
referred to.
5. The wide jurisdiction vested in the English Courts is
derived from ancient principles of Maritime Law developed by
custom and practice as well as from subsequent statutes many
of which have been incorporated in the provisions of
International Conventions unifying the laws practised in
several maritime countries. [1032E-F]
The Geetano and Maria, (1862) 7 PD; The Gas Float
Whitton, N.2 (1896), referred to.
A History of English Law, Vol.1,5 and 8; Rescoe’s
Admiralty Practice, 5the Ed.; Marsden : Select Pleas of the
Court of Admiralty, Vol.I & II; Law and Custom of the Sea,
Vol.I and II; Benedict on admiralty, 6th Ed. (1940) Vol.I;
Gilmore and Black, Law of Admiralty, (1957); A History of
English Law, W.S. Holdsworth, Vol. I, pp. 558-59, referred
to.
6. The provision contained in section 6 of the Admiralty
Court Act, 1861 limiting the jurisdiction of the Admiralty
Court to claims respecting inward cargo was discarded by the
Administration of Justice Act, 1920
1008
which extended the jurisdiction of the High Court to (a)
any claim arising out of an agreement relating to the use or
hire of a ship; (b) any claim relating to the carriage of
goods in any ship, and (c) any claim in tort in respect of
goods carried in any ship. The Act thus applied to both
inward and outward cargoes. [1034B,C]
7. The vital significance and the distinguishing feature
of an admiralty action in rem is that this jurisdiction can
be assumed by the coastal authorities in respect of any
maritime claim by arrest of the ship, irrespective of the
nationality of the ship or that of its owners, or the place
of business or domicile or residence of its owners or the
place where the cause of action arose wholly or in part.
[1038E-F]
The Fehmarn, (1958) I All E.R. 333, referred to.
Halsbury, op. cit. 4th Ed. Vol. I(1) para 309; D.C.
Jackson, Enforcement of Maritime Claims, (1985); Gilmore and
Black, The Law of Admiralty, p. 1; The Law of American
Admiralty, 6th Ed. Vol. I p.3; Rescoe’s Admiralty Practice,
5th Ed. p.29, referred to.
8. It is within the competence of the appropriate Indian
Courts to deal, in accordance with the general principles of
maritime law and the applicable provisions of statutory law,
with all persons and things found within their jurisdiction.
The power of the court is plenary and unlimited unless it is
expressly or by necessary implication curtailed. All
remedies which are available to the courts to administer
justice are available to a claimant against a foreign ship
and its owner found within the jurisdiction of the concerned
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High Court. This power of the court to render justice must
necessarily include the power to make interlocutory orders
for arrest and attachment before judgment. [1046B-D]
The Bold Buccleaugh, [1851] 7 Moo. PC 267; The Jade,
[1976] I All. E.R. 921, 923; Currie v. M. Knight, [1897] AC
97; Bardot & Anr. v. The American Ship or Vessel Augusta,
1873 (x) Bombay High Court Reports, 110, referred to.
Enforcement of Maritime Claims, 1985 p. 9; Halsbury’s
Laws of England, 4th Ed. Vol.I p. 375; Halsbury’s Laws of
England, Vol.1, para 307; referred to.
9. The High Court in India are superior courts of
record. They have
1009
original and appellate jurisdiction. They have inherent and
plenary powers. Unless expressly or impliedly barred, and
subject to the appellate or discretionary jurisdiction of
this Court, the High Courts have unlimited jurisdiction,
including the jurisdiction to determine their own powers.
[1046D-E]
Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra
JUDGMENT:
Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors.,
[1965] 2 SCR 800, distinguished.
Halsbury’s Laws of England, 4th Ed. Vol.10, para 713,
referred to.
10. In the instant case, the Andhra Pradesh High Court,
as a successor to the Madras High Court, is vested with all
the appellate and original jurisdiction, including admiralty
jurisdiction to order the arrest and detention of a ship.
[1047A-B]
11. In equating the admiralty jurisdiction of the Indian
High Court to that of the English High Court, the Colonial
Court of Admiralty Act, 1890 significantly refers to the
admiralty jurisdiction of the High Court in England ‘whether
existing by virtue of any statute or otherwise’. This is an
enabling statute, and not a statute of limitation of power.
It aids, and does not fetter, the growth of jurisdiction.
There is no reason why the words ‘statute or otherwise’
should be so construed as to exclude the various sources
from which the admiralty jurisdiction in England developed.
Apart from statutes, the powers of that Court were derived
from custom and practice and the principles developed by
common law and equity as well as by the generally recognised
principles of civil law developed and practised in Europe.
There is no reason why those principles should also not be
drawn upon to enrich and strengthen the jurisprudence of
this country, even if the jurisdiction of our courts were to
be, by compulsions of history, considered to be curtailed
and dovetailed to the colonial past - a proposition which is
neither correct nor consistent with our status as a
sovereign republic. It is time to take a fresh look at the
old precedents. [1047D-H; 1048A]
Delhi Judicial Service Association, Tis Hazari Court,
Delhi v. State of Gujarat & Ors. JT 1991 (3) SC 617; S.P.
Gupta v. Union of India, [1982] 2 SCR 365, relied on.
1010
12. It is well recognised in iternational law that a
merchant ship, though generally governed by the laws of the
flag State, subjects itself to the jurisdiction of a foreign
State as it enters its waters. The Geneva Convention on the
Territorial Sea and the Contiguous Zone, 1958 and the Law of
the Sea Convention, 1982 affirm that the sovereignty of a
State extends over its internal and territorial waters.
[1048D]
The Schooner Exchange v.M. Faddon & Ors., [1812] 11 U.S.
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(7 Cranch) 114, 143, referred to.
Nagendra Singh, International Maritime Law Conventions,
British Shipping Laws; Benedict, The Law of American
Admiralty, 6th Ed. pp. 121 & 122, referred to.
13. Coastal States are entitled to assume jurisdiction
in respect of maritime claims against foreign merchant ships
lying in their waters. These ships are liable to be arrested
and detained for the enforcement of maritime claims. The
courts of the country in which a foreign ship has been
arrested may determine the cases according to merits,
provided they are enpowered to do so by the domestic law of
the country or in any of the cases recognised by the
International Convention relating to the Arrest of Seagoing
Ships, Brussels, 1952. The maritime claims in respect of
which the power of arrest is recognised in law include
claims relating to damage caused by any ship either in
collision or otherwise; claims relating to carriage of goods
in any ship whether by charterparty or otherwise, loss of
or damage to goods etc. These principles of International
law, as generally recognised by nations, leave no doubt
that, subject to the local laws regulating the competence of
courts, all foreign ships lying within the waters of a
State, including waters in ports, harbours, roadsteads and
the territorial waters, subject themselves to the
jurisdiction of the local authorities in respect of maritime
claims and they are liable to be arrested for the
enforcement of such claims. [1049C-F]
14. In the absence of any statute in India comparable to
the English statutes on admiralty jurisdiction, there is no
reason why the words ‘damage caused by a ship’ appearing in
section 443 of the Merchant Shipping Act, 1958 should be so
narrowly construed as to limit them to physical damage and
exclude any other damage arising by reason of the operation
of the vessel in connection with the carriage of goods. The
1011
expression is wide enough to include all maritime questions
or claims. If goods or other property are lost or damaged,
whether by physical contact or otherwise, by reason of
unauthorised acts or negligent conduct on the part of the
shipowner or his agents or servants, wherever the cause of
action has arisen, or wherever the ship is registered, or
wherever the owner has his residence or domicile or place of
business, such a ship, at the request of the person
aggrieved, is liable to be detained when found within Indian
jurisdiction by recourse to sections 443 and 444 of the
Merchant Shipping Act, 1958 read with the appropriate rules
of practice and procedure of the High Court. These
procedural provisions are but tools for enforcement of
substantive rights which are rooted in general principles of
law, apart from statutes, and for the enforcement of which a
party aggrieved has a right to invoke the inherent
jurisdiction of a superior court. [1054G; 1055A-D]
Victoria, 1887 12 PD 105; The Vera Cruz, (1884) 9 PD 96;
Currie v. M.Knight, (1897) AC 97; The Jade, (1976) 1 All.
E.R. 920, referred to.
Halsbury’s Laws of England, 4th Ed. Vol.I(1), para 319
N. 12, referred to.
15. The Merchant Shipping Act empowers the concerned High
Court to arrest a ship in respect of a substantive right. A
right conferred by the Indian Carriage of Goods by Sea Act,
1925 in respect of outward cargo is one of those rights
which can be enforced by arrest and detention of the foreign
ship in order to found jurisdiction over the vessel and its
owners, just as it can be done in respect of inward cargo by
reason of the substantive rights conferred by the Admiralty
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Court Act, 1861 read with the Colonial Courts of Admiralty
Act, 1890, and other rules of law. The same principle must
hold good for carriage under a charterparty. These and other
laws, such as the law of contract, tort, crime, mortgage,
marine insurance, customs, port operations, etc. and the
Civil and Criminal Procedure Codes as well as the relevant
rules of court regulating procedure and practice together
constitute the body of substantive and procedural laws
governing claims relating to inward and outward cargo, and
such claims are enforceable against foreign ships by
recourse to arrest and detention when found within
jurisdiction. Viewed in this light, and by this reasoning,
the Andhra Pradesh High Court, as a successor to the Madras
High Court, does not lack admiralty jurisdiction in respect
of claims to outward cargo. [1056A-D]
1012
16. The jurisdictional questions concerning arrest of
foreign ships enforcement of claims against the shipowner
as a transporter of goods, which in England are regulated by
the Supreme Court Act, 1981, are in many respects left
unregulated by Indian legislation. While the provisions of
various international conventions concerning arrest of
ships, civil and penal jurisdiction in matters of collision,
maritime liens and mortgages etc. have been incorporated
into the municipal laws of many maritime States, India, lags
behind them in adopting these unified rules. By reason of
this void, doubts about jurisdiction often arise, as in the
present case, when substantive rights, such as those
recognised by the Carriage of Goods by Sea Act, are sought
to be enforced. The remedy lies, apart from enlightened
judicial construction, in prompt legislative action to
codify and clarify the admiralty laws of this country. This
requires thorough research and investigation by a team of
experts in admiralty law, comparative law, and public and
private international law. Any attempt to codify without
such investigation is bound to be futile. [1056H; 1057A-C]
17. The judicial power of this country, which is an
aspect of national sovereignty, is vested in the people and
is articulated in the provisions of the Constitution and the
laws and is exercised by courts empowered to exercise it. It
is absurd to confine that power to the provisions of
imperial statutes of a bygone age. Access to court which is
an important right vested in every citizen implies the
existence of the power of the Court to render justice
according to law. Where statute is silent and judicial
intervention is required, Courts strive to redress
grievances according to what is perceived to be principles
of justice, equity and good conscience. [1058E,F]
S.P. Gupta v. Union of India, [1982] 2 SCR 365, relied
on.
The Schooner Exchange v. M’Faddon & Ors., U.S. Supreme
Court Reports, Cranch 5-9 P. 114, referred to.
18. All persons and things within the waters of a State
fall within its jurisdiction unless specifically curtailed
or regulated by rules of international law. The power to
arrest a foreign vessel, while the waters of a coastal
State, in respect of a maritime claim, wherever arising, is
a demonstrable manifestation and an essential attribute of
territorial sovereignty. This power is recognised by several
international conventions. These conventions contain the
unified rules of law drawn from different legal systems.
Although many of these conventions have yet to
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be ratified by India, they embody principles of law
recognised by the generally of maritime States, and can
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therefore be regarded as part of our common law. A
specialised body of legal and technical experts can
facilitate adoption of internationally unified rules by
national legislation. It is appropriate that sufficient
attention is paid to this aspect of the matter by the
concerned authorities. Perhaps the Law Commission of India,
endowed as it ought to be with sufficient authority, status
and independence as is the position in England, can render
valuable help in this regard. [1059D-H; 1060A]
19. The jurisdiction of the High Court is governed by
the Constitution and the laws, and the continuance in force
of the existing laws is not a fetter but an additional
source of power. Access to court for redressal of grievance
being an important right of every person, it is essential
that the jurisdiction of the court is construed harmoniously
and consistently with its vital function in that respect, so
that absence of legislation will not jeopardise that right.
[1060C,D]
20. Once a foreign ship is arrested in Indian waters by
an order of the High Court, in exercise of the admiralty
jurisdiction vested in it by statute, or inherent in it as a
court of record, in respect of any maritime claim against
its owner, wherever the cause of action may have arisen, and
whether or not the ship is subsequently released by the
owner furnishing security, proceedings must continue against
the owner as in any other suit. [1060G,H]
21. All foreign ships entering Indian waters are
presumed to know that they fall within the jurisdiction of
this country during their stay here. It cannot be said that
no High Court in India was invested with admiralty
jurisdiction to order the arrest of the vessel in respect of
a cause of action relating to outward cargo because section
6 of the Admiralty Court Act, 1861 (read with the Colonial
Courts of Admiralty Act, 1890) conferring admiralty
jurisdiction on Indian High Courts confined it to ‘claims
for damage to cargo imported’. In the instant case, the
appellant-vessel was lying in the port of Vishakhapatnam
when she was arrested in respect of a cause of action
relating to cargo. The High Court, therefore, rightly
assumed jurisdiction by the arrest of the vessel while it
was lying in the port of Vishakhapatnam, as the High Court
possesses jurisdiction over claims relating to inward and
outward cargo. [1061B-E]
1014
(PER SAHAI.J. CONCURRING);
1.1. The Law of admiralty progressed gradually from
ordinary courts, to courts of Admiralty and ultimately to
High Court commencing in commercial expedience, equity and
justice and ending with statutory enactments covering entire
field from collision on ships to cargo even. All this was
existing when the 1890 Act was enacted. But the statutes of
1840 and 1861 were not exhaustive and English courts could
take cognizance for various wrongs either in tort or
contract. Therefore when colonial courts were conferred
jurisdiction it was not restricted or confined to statutes,
as the power was being conferred on High Courts which were,
then and even now, not only courts of unlimited civil
jurisdiction but higher courts possessed of every
jurisdiction which was not expressly or impliedly conferred
on other courts. The word ‘otherwise’ literally means in a
different way. Effect of its use in the 1890 Act in law, was
to confer not only statutory jurisdiction possessed of by
English courts but all that which was being exercised or
was capable of being exercised either under custom and
practice or for sake of equity and justice. The deliberate
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expansion of power and jurisdiction after existence of two
statutes for nearly thirty years was founded on experience
and necessity of arming the courts for every dispute that
could arise relating to Admiralty jurisdiction, as the law
on Admiralty was a growing law. Its development could not be
striffled by its very nature. It was with this intention
that the Parliament used the word, ‘otherwise’ in 1890 Act.
No word in a statute has to be construed as surplusage. Nor
it can be rendered ineffective or purposeless. Courts are
required to carry out the legislative intent fully and
completely. The two legislations of 1840 and 1861 took care
of those actions which appeared to be settled till then. But
they did not close the door for the growth of law. They were
enacted to ‘improve the Admiralty practice’ as the
jurisdiction which were conferred by the statutes were
already being exercised. Action in personam or rem were not
unknown. It was provided statutory base only. Statutes till
1920 in England were not creation of new rights but
recognition of what was existing by practice or custom.
Thus, the jurisdiction to entertain a claim for tort or
breach of contract by owner or master of ship while carrying
cargo outside the port could be exercised or was capable of
being exercised in 1890 by the High Court of England if
occasion arose. [1066E-H; 1067A-F]
1.2. The rationale of extending jurisdiction in
Admiralty over cargo carried into the port has been
existence of a right in owner or consignee
1015
arising out of contract or agreement entered into between
him and the master or owner of the ship. It was the
enforcement of the right which was safeguarded by providing
a remedy to arrest a ship if the goods were carried into
any port. Same rationale applies to redress the owner of
bill of lading if the master of the ship in breach of
agreement entered into any port committed tort by acting
against it in course of outward journey. Such breach would
have been actionable and a suit could be filed in the court
where agreement was entered. Basis of Maritime Law has been
necessity to provide remedy for wrong done on high seas.
Inclusion or expansion of jurisdiction was in relation to
any cause which could have been cognisable under ordinary
law. Bottomrey, salvage, seaman wages or towage are all
causes for which action could be brought in court of law but
their enforcement was rendered illusory with disappearance
of the person beyond territorial waters. To overcome this
difficulty jurisdiction was created making it actionable
against person and finally the res itself. What was basic
was the existence of cause of action, arising out of tort
or contract in relation to the master or owner of the ship.
Applying this test, the cause of action arose in Indian
territory and if the owner of the ship would have remained
in this country a suit for breach of contract could have
been filed. Therefore the owner of bill of lading was not
precluded from approaching the Admiralty Court for redress
when the foreign ship which was guilty of violations
appeared in Indian waters. On this construction the colonial
courts could exercise the jurisdiction in respect of cargo
going outside the port in exercise of jurisdiction under the
Act of 1890 not on statutes but as the High Court of England
could exercise such power. [1067F-H; 1068A-D]
Yuri Maru; 1927 Appeal cases 906, distinguished.
State of Madras v. C.C. Menon & Ors., [1955] 1 SCR 280,
referred to.
The Bold Buccleugh, [1851] 7 Moo. P.C. 267; The Hailey,
L.R. 2 PC 193; The Ironsides, 167 English Reports 205; The
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St. Cloud, 167 English Reports 269; The Norway, 167 English
Reports 347; The Hercules, 2 Dod. 371; The Jade, [1976] 1
All Eng. Reports 921, referred to.
Halsbury’s Laws of England, 4th Ed. Vol. 1: Maritime
Liens by D.R. Thomas; Maritime Law by Christopher Hill;
Carter History of English Courts, referred to.
2. Without entering into any comparative study of
jurisdiction of High
1016
court of England and the High Courts in our country, the one
basic difference that exists today is that the English
Courts derive their creation, constitution and jurisdiction
from Administration of Justice Act or Supreme Court Act but
the High Courts in our country are established under the
Constitution. Under it, Article 225 preserved the
jurisdiction, including inherent jurisdiction, which existed
on the date the Constitution came into force and Article 226
enlarged it by making it not only a custodian of fundamental
rights of a citizen but as repository power to reach its
arms to do justice. A citizen carrying on business which is
fundamental right cannot be rendered helpless on premise
that the jurisdiction of High Courts stood frozen either
under statute of England or any custom or practice
prevailing there or the High Court of England cannot
exercise the jurisdiction. A citizen of an independent
republic cannot be left high and dry. The construction of
law has to be in consonance with sovereignty of a state.
The apprehension that assumption of such jurisdiction would
be on general attributes of sovereignty is not well founded.
This coupled with expansive jurisdiction that the High
Courts enjoyed in relation to admiralty under the 1890 Act
preserved under Article 225 of the Constitution provided
justification for direction to arrest the ship, for the
tortious act done by master or owner of the ship in respect
of goods carried outside the port even if there was no
specific provision like Section 6 of the 1861 Act.
Entertaining a claim arising out of breach of contract in
relation to cargo taken out of any Indian port pertains to
jurisdiction. It must arise out of Statute. But the power to
direct arrest of a ship in exercise of the jurisdiction is
one relating to competency. The High Courts in India being
courts of unlimited jurisdiction, repository of all judicial
powers under the Constitution except what is excluded are
competent to issue directions for arrest of foreign ship in
exercise of statutory jurisdiction or even otherwise to
effectuate the exercise of jurisdiction. [1069F-H; 1070A-F]
3. In the instant case, since the jurisdiction to
entertain a suit on tort or contract in relation to cargo
going out of the country in a ship is found to exist under
1890 Act, the High Court of Andhra Pradesh was competent to
direct arrest of the foreign ship when it appeared in Indian
waters. [1070F-G]
4. In respect of Colonial Courts of Admiralty Act the
Law Commission recommended that the necessary substantive
provisions of the English Statute may be incorporated into
the Act so as to make it the
1017
comprehensive Indian law relating to courts of admiralty.
Neither the law was made up-to-date and brought in line
with international conventions on maritime law passed in
1952 etc. nor even the salient features of English law as
amended by Administration of Justice Act, 1920, and 1956
were adopted. And rights and interests of citizen of the
independent sovereign state continue to be governed by
legislations enacted for colonies by the British Parliament.
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Various provisions in the 1890 Act have been rendered not
only anomalous but even derogatory to the sovereignty of the
State. It is hoped that the unfortunate state of affairs
shall be brought to end at the earliest. [1062E-G]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 896 of
1992.
WITH
T.C. No. 27 of 1987.
From the Judgment and Order dated 26.4.1985 of the
Andhra Pradesh High Court in O.S. Appeal No. 2 of 1984.
Raju Ramachandran and Jagan Mohan Rao for the
Appellants.
G.L. Sanghi, S.K. Mehta, Dhruv Mehta, Aman Vachher and
Arvind Verma for the Respondents.
The Judgment of the Court was delivered by
THOMMEN, J. We grant leave in SLP(C) No. 10542 of
1985 which arises from the order of the Division Bench of
the Andhra Pradesh High Court affirming the finding of the
learned Single Judge that the respondent’s suit against the
appellants was maintainable and that the High Court was
competent to try the same in exercise of its admiralty
jurisdiction. The Transferred Case No. 27 of 1987 is the
appeal filed by defendents 1 and 2 against the judgment of
the learned Single Judge of the Andhra Pradesh High Court
decreeing the suit. The case stood transferred to this
Court pursuant to this Court’s Order dated 25.11.1986.
By our order dated August 28, 1991 we allowed Civil
Appeal No. 3392 of 1991 filed by the 3rd defendant against
the order of the High Court dismissing its petition for
condonation of delay in presenting O.S.A.S.R. No. 39789 of
1988 in the High Court. We held that the appeal filed by
the 3rd defendant had to be heard on the merits particularly
on the question of law regarding the liability of the agent.
1018
We shall now deal with the appeal arising from SLP (C)
No. 10542 of 1985 where the only question is whether the
learned Judges of the High Court have rightly held that the
respondent’s suit was maintainable in respect of a cause of
action alleged to have arisen on or after 1.2.1984 when the
vessel, M.V. Elisabeth, was lying in the Port of Marmagao;
on 8.2.1984 when the vessel left the Port without issuing
bills of lading or other documents for the goods shipped as
required by the plaintiff-shipper; and, subsequently when
the goods were discharged and handed over to the consignee
at the port of destination at Ras-Al-Khaimah, United Arab
Emirates during the period from 13.2.84 to 19.2.84,
notwithstanding the direction of the plaintiff not to
deliver the goods by reason of the buyer’s failure to pay
the agreed price. The 1st defendant, M.V. Elisabeth, is a
vessel of foreign nationality and it is owned by the 2nd
defendant which is a foreign company carrying on business in
Greece, and the 3rd defendant is stated to be the local
agent of the 2nd defendant at Goa.
The Planitiff is a private limited company having its
registered office in Goa. The case of the plaintiff is that
the defendants acted in "breach of duty" by leaving the port
of Marmagao on 8.2.84 and delivering the goods to the
consignee in breach of the plaintiff’s directions to the
contrary, thereby committing conversion of the goods
entrusted with them. The suit was instituted in Andhra
Pradesh High Court invoking its admiralty jurisdiction by
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means of an action in rem. The vessel was arrested when it
entered the Port of Vishakhapatnam on 13.4.84 after
returning from foreign ports. On the owner of the vessel
entering appearance and providing security by furnishing a
Bank Guarantee under protest in the sum of Rs. 14,25,000 the
vessel was released from detention.
The defendants moved an application in the High Court
raising a preliminary objection to the jurisdiction of that
Court. They contended that the plaintiff’s suit against a
foreign ship owned by a foreign company not having a place
of residence or business in India was not liable to be
proceeded against on the admiralty side of the High Court by
an action in rem in respect of a cause of action alleged to
have arisen by reason of a tort or a breach of obligation
arising from the carriage of goods from a port in India to a
foreign port. They did not, however, contend that the
alleged cause of action not having arisen in Andhra Pradesh,
the suit ought not to have been filed in Andhra Pradesh.
Their sole contention on the question of jurisdiction was as
regards the lack of admiralty jurisdiction of any court
1019
in Andhra Pradesh or any other State in India to proceed in
rem against the ship on the alleged cause of action
concerning carriage of goods from an Indian port to a
foreign port. The preliminary objection was overruled by
the learned the learned Single Judge and his order was
confirmed by the learned Judges of the Division Bench by
their order which is challenged in S.L.P.(C) No. 10542 of
1985. The suit was finally decreed by the learned Single
Judge and appeal therefrom is the subject-matter of the case
transferred to this Court.
The crucial question for our consideration is,
therefore, the dispute about jurisdiction. If that question
were to be answered in favour of the defendants, it would be
unnecessary to express any view on the merits of the
Transferred Case, for the suit itself would then stand
dismissed.
Mr. Raju Ramachandran, appearing for the appellants
(defendants), raises a fundamental objection as to the
assumption of admiralty jurisdiction over a foreign ship in
respect of a claim arising in connection with the carriage
of goods from an Indian port to a port outside India. The
High Court, he says, ordered the arrest of the vessel in
purported exercise of its jurisdiction on the admiralty
side. The power of the High Court on the admiralty side is,
however, contained in and confined to the provisions of the
Admiralty Court Act, 1861 (24 & 25 Victoriae, Ch. 10) made
applicable to India by the Colonial Courts of Admiralty Act,
1890 (53 & 54 Victoriae) of Admiralty (India) Act, 1891 (Act
No. 16 of 1891) declaring certain Indian Courts of unlimited
civil jurisdiction as colonial courts of admiralty and
declaring the High Court of Judicature of Madras as one of
such courts. Mr. Ramachandran does not dispute that by
reason of the Andhra State Act, 1953, and the State Re-
organisation Act, 1956 read with the Government of India
Acts, 1915 and 1935 and the Constitution of India, the High
Court of Andhra Pradesh has, like the High Courts of Madras,
Bombay and Calcutta, such admiralty jurisdiction as was
granted by the British Statutes referred to above. But the
jurisdiction, counsel says, was not wider than what was
granted under the British Statutes. The extent of admiralty
jurisdiction and the judicial power peculiar to that
jurisdiction, as conferred on the Indian High Courts,
remained frozen as on the date of the Admiralty Court Act,
1861. The wider powers assumed by the British Courts under
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the subsequent statutes of that country did not enlarge the
admiralty jurisdiction of the Indian High Courts. In the
absence of any
1020
subsequent British or Indian statute widening the admiralty
jurisdiction of the Indian Courts, the jurisdiction of the
Andhra Pradesh High Court over a foreign ship by means of an
action in rem does not extend to any matter falling outside
the Admiralty Court Act, 1861. The only provision of that
Act respecting cargo is what is contained in Section 6 which
is confined to goods ‘carried into any Port in England or
Wales in any Ship....’ Applying that provision to India by
reason of the statutes referred to above, the Indian High
Court exercising admiralty jurisdiction has no power to deal
with any claim concerning outward cargo because Section 6 is
confined to inward cargo. The plaintiff’s case is founded
on certain facts which clearly fall outside the ambit of
Section 6 of the admiralty Court Act, 1861. Consequently,
the arrest of the vessel in purported exercise of admiralty
jurisdiction in rem, concerning a claim relating to outward
cargo, was null and void and of no effect. This argument,
supported as it is by considerable scholarly research on the
part of counsel, amounts to an invocation to admit
incompetence and disability on the part of the Indian
Judicial System to render justice for want of legislative
grant of power. Counsel is fortified in his submission by
certain decisions of Calcutta, Bombay and other High Courts.
Mr. G.L. Sanghi, appearing for the respondent-
plaintiff, on the other hand, submits that the impugned
judgment of the High Court is sound and correct and requires
no interference by this Court because what the High Court
has stated is based on a realistic appreciation of the need
for liberal construction of the statutes so as to support
assumption of jurisdiction to render justice where justice
is required to be done rather than resorting to a technical
or narrow or pedantic construction resulting in a state of
helplessness. Counsel says that every person has a right to
approach the Court of the land for appropriate remedy in
respect of claims against a foreign ship and its owner, and
to deny him that right and to compel him to pursue remedy in
a foreign country according to an unfamiliar system of law
and practice in strange and uncertain conditions, and
consequently incurring high expenses with all the
uncertainties of such a pursuit, is unjust and uncalled for.
All major systems of law the world over recognise the
competence of the coastal State to assume jurisdiction over
a foreign ship entering its waters in respect of certain
well recognised claims, irrespective of where the cause of
action arose or where the defendant has his place of
residence or business. the reason for this wide exercise of
jurisdiction is that the foreign owner being not available
within jurisdiction, and the stay
1021
of the foreign ship in the waters of the coastal State being
necessarily brief, jurisdiction over the ship has to be
exercised by its arrest and detention by means of an action
in rem. Counsel submits that the High Court being a Court
of record with unlimited jurisdiction, it was never intended
by the British Parliament that the admiralty power conferred
on certain High Courts should remain frozen as on the date
of the passing of the Admiralty Court Act, 1861 and the
subsequent changes in the law of Great Britain should not
widen the jurisdiction of the Indian High Courts. In any
case, counsel submits, the colonial statutes should not be
so construed as to stand in the way of the Indian High
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Courts exercising unlimited jurisdiction except where the
jurisdiction is barred expressly of by necessary implication.
In the absence of any such bar, the powers of the High Court
are unlimited and there is no merit in the preliminary
objection to the jurisdiction of the High Court.
The Andhra Pradesh High Court is the successor to the
Madras High Court in respect of the territories transferred
from Madras and included in the State of Andhra which was
formed by the Andhra State Act, 1953 (Act 30 of 1953).
Vishakhapatnam is one of the areas so included in the State
of Andhra. Section 30 of this Act provides:
"30. Jurisdiction of Andhra High Court - The High
Court of Andhra shall have, in respect of the
territories for the time being included in the
State of Andhra, all such original, appellate and
other jurisdiction as, under the law in force
immediately before the prescribed day, is
exercisable in respect of the said territories or
any part thereof by the High Court at Madras."
The High Court of Andhra was redesignated as the High
Court of Andhra Pradesh when the State was so named by the
States Re-organisation Act, 1956. Section 52 of that Act
provides :
"52. Jurisdiction of High Courts for new States. -
The High Court for a new State shall have, in
respect of any part of the territories included in
that new State, all such original, appellate and
other jurisdiction as, under the law in force
immediately before the appointed day, is
exercisable in respect of that part of the said
territories by any High Court or Judicial
Commissioner’s Court for an existing State."
1022
In the port of Vishakhapatnam the Andhra Pradesh High
Court has thus the same jurisdiction as was vested in the
Madras High Court prior to the transfer of that territory.
The question is as regards the extent and nature of that
jurisdiction.
The powers of the Madras High Court are traceable to
the Admiralty Court Act, 1861 (24 & 25 Victoriae c. 104) by
reason person of the Letters Patent of 1865 read with the
Colonial Courts of Admiralty Act, 1890 and the colonial
Courts of Admiralty (India) Act, 1891. By the last two
Acts, the Madras High Court was invested with the same
admiralty jurisdiction as was vested in the High Court of
England. The Letters Patent of 1865 declared that the High
Court of Madras would and continue to be a court of record
and that it would exercise ordinary, original and civil
jurisdiction within its local limits to try and determine
suits. The Government of India Act, 1915 declared that all
the High Courts established by Letters Patent were courts of
record and had such original and appellate jurisdiction
including admiralty jurisdiction as had been vested in them
by Letters Patent. The Government of India Act, 1935
declared that ‘every High Court shall be a court of record’
and that its jurisdiction, the law administered by it and
the powers of the judges were the same as immediately before
the commencement of Part III of that Act (sections 220 and
223). Article 225 of the Constitution of India declares :
"...the jurisdiction of, and the law administered
in, any existing High Court, and the respective
powers of the Judges thereof in relation to the
administration of justice in the Court, including
any power to make rules of Court and to regulate
the sittings of the Court and of members thereof
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sitting alone or in Division Courts, shall be the
same as immediately before the commencement of
this constitution :
Provided ............."
Article 215 says :
"Every High Court shall be a court of record and
shall have all the powers of such a court including
the power to punish for contempt of itself".
In a number of decisions of the Calcutta and Bombay
High Courts,
1023
the admiralty jurisdiction of the High Courts in India has
been historically traced to the Charters of 1774 and 1798,
as subsequently expanded and clarified by the Letters Patent
of 1823, 1862 and 1865 read with the Admiralty Court Act,
1861, the Colonial Courts of Admiralty Act, 1890, and the
Colonial Court of Admiralty (India) Act, 1891 and preserved
by section 106 of the Government of India Act, 1915, section
223 of the Government of India Act, 1935 and Article 225 of
the Constitution of India. The pre-constitution enactments
have continued to remain in force in India as existing laws
: See section 18 of the Indian Independence Act, 1947, and
Article 372 of the Constitution of India. See Kamalakar
Mahadev Bhagat v. Scindia Stream Navigation Co. Ltd., AIR
1961 Bombay 186; Mrs. Sahida Ismail v. Petko R. Salvejkov &
Ors., AIR 1973 Bombay 18; Jayaswal Shipping Company v. ‘S.S.
Leelavati’, AIR 1954 Calcutta 415; Rungta Sons Pvt. Ltd. &
Anr. v. S.S. ‘Edison Mariner’ & Anr., 1961-62 (66) Calcutta
Weekly Notes 1083 and Smt. Reena Padhi v. ‘Jagdhir’, AIR
1982 Orissa 57. The view taken in these decisions is that
the admiralty jurisdiction of the High Court in India does
not extend beyond the ambit of the provisions of the
(English) Admiralty Court Act, 1861. Further expansion of
the jurisdiction of the English High Court under various
statutes did not expand the jurisdiction of the Indian High
Courts. This means, no High Court in India has jurisdiction
to order the arrest and detention of a foreign ship in an
action in rem in respect of a cause of action relating to
outward cargo, as distinguished from inward cargo.
The rationale of these decisions is that the chartered
High Courts in India are Colonial Courts of Admiralty under
Act 16 of 1891 exercising the same jurisdiction as was
vested in the High Court of Admiralty of England under the
Admiralty Court Act, 1861, and the subsequent merger of the
English High Court of Admiralty with the English High Court
of Justice in 1875 and the expansion of jurisdiction of that
High Court under subsequent statutes did not expand the
admiralty power of the Indian High Court of merge it with
its ordinary original civil jurisdiction. P.B. Mukharji,
J. of the Calcutta High Court in Jayaswal Shipping Company
v. ‘S.S. Leelavati’, AIR 1954 Cal. 415, 421, highlights this
aspect thus :
"... Courts of Admiralty are courts of specific
jurisdiction and if a controversy does not come
within their specific jurisdiction, they cannot
entertain it, and in that respect are unlike the
courts of residuary jurisdiction such as the Common
Law Courts or
1024
in India the Courts of ordinary original civil
jurisdiction."
In National Co. Ltd. v. Asia Mariner, 72 CWN 635, 647,
S.K. Mukherjea, J. of the Calcutta High Court states :
"The High Court at Calcutta as a Court of
Admiralty is, therefore, a Court of prescribed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 50
jurisdiction. Its jurisdiction is prescribed by
clause 26 of the Charter of 1774 and by section
2(2) of the Colonial Courts of Admiralty Act, 1890.
The jurisdiction has not been extended or modified
by any statute. None of the subsequent British
statutes by which the Admiralty Jurisdiction of the
High Court in England has been extended or affected
have been made applicable to India."
The High Court as a Court of Admiralty is thus treated
as a separate entity exercising a distinct and specific or
prescribed or limited jurisdiction. This reasoning is based
on the assumption that the continuance in force of the
Colonial Courts of admiralty Act, 1890 as an existing law
carves out a distinct jurisdiction of the High Court limited
in ambit and efficacy to what has been granted by the
Admiralty Court Act, 1861, and that jurisdiction has
remained stultified ever since. This restrictive
construction is, in our view, not warranted by the
provisions of the Constitution. 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 Article 225, does not mean that a matter which is
covered by the Admiralty Court Act, 1861 cannot be otherwise
dealt with by he High Court, subject to its own Rules, in
exercise of its manifold jurisdiction, which is, unless
barred, unlimited. To the extent not barred expressly or by
necessary implication, the judicial sovereignty of this
country is manifested in the jurisdiction vested in the High
Courts as superior courts.
S.K. Mukherjea, J., however, continues (ibid, para 94):
"The Admiralty Court Act, 1861, although repealed
in part in relation to Enlgand and Wales, remains
in force in India. None of the subsequent English
statutes relating to Admiralty jurisdiction over
cargo claims or contract of carriage have been made
applicable to the High Courts in India exercising
jurisdiction in Admiralty."
1025
A similar view is echoed in other decisions on the
point. In Kamalakar Mahadev Bhagat, v. Scindia Steam
Navigation co. Ltd. AIR 1961 Bombay 186, a learned Judge of
the Bombay High Court stated :
"....It will thus be seen that the High Court of
judicature at Bombay in particular being one of the
Colonial Courts of Admiralty under Act 16 of 1891
today exercises the same admiralty jurisdiction as
was exercised by the High Court of Admiralty in
England in 1890 when the Colonial Courts of
Admiralty Act was passed by the British Parliament.
We have, therefore, to examine and ascertain as to
what was the scope and nature of jurisdiction of
the High Court of Admiralty in England either under
any statute or otherwise in the year 1890, because,
it would be just that jurisdiction which is
exercisable by the High Court of Judicature at
Bombay down to date." (p. 190)
With respect we disagree. All this is reminiscent of a
bygone age. The learned Judge failed to take note of the
fact that in 1890 the Court of Admiralty had ceased to be a
separate and distinct institution. By the Judicature Act of
1873, the High Court of Admiralty was merged with the High
Court of Justice. It is, however, true that the substantive
powers in admiralty matters were derived from the Admiralty
Court Act, 1861, and those powers were not widened until
1920. The learned Judge further observes:
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"... In my opinion, therefore, the present suit
falls within the exclusive Admiralty jurisdiction
of the High Court and could not have been filed on
the Ordinary Original Side of the High Court, much
less in the City Civil Court. In this view of the
matter, I am unable to agree with the view
expressed by the learned Principal Judge of the
City Civil Court that actions in personam used to
be entertained in the Common Law Courts in England
in respect of damage done by ship on the high seas
and that even at present in England it is open to a
suitor to file an action in personam in the King’s
Bench Division in respect thereof. In my opinion,
no such action ever lay in the Common Law Courts of
England, nor can it ever lie in the Queen’s Bench
Division of the High Court of England at the
present time...". (p.200 ibid.)
1026
All this observation, as we shall presently see, is
inconsistent with the true character of the constitution of
the courts in England and the powers exercised by them
consequent upon the statutory changes between 1873 and 1981.
It is true that the Colonial statutes continue to
remain in force by reason of Article 372 of the Constitution
of India, but that does not stultify the growth of law or
blinker its vision or fetter its arms. Legislation has
always marched behing time, but it is the duty of the Court
to expound and fashion the law for the present and the
future to meet the ends of justice.
We do not accept the reasoning of the High Court in the
decisions cited above on the question of jurisdiction,
whatever be the correctness of their decisions on the
peculiar facts of those cases in regard to which we express
no view. But the narrow view adopted in those decisions on
the source and ambit of the admiralty jurisdiction of the
High Courts is, in our opinion not warranted.
Mr. Ramachandran has laid much stress on the section of
the Privy Council in The Yuri Maru v. The Woron, 1927 AC
906, which was relied on by the Bombay High Court in Mrs.
Sahida Ismail (supra) to come to the conclusion, which it
did, as to the lack of jurisdiction of the Indian High
Courts to go beyond what was permitted by the Colonial
Courts of Admiralty Act, 1890.
Before we deal with the decision of the Privy Council,
it is important to notice that the Colonial Courts of
Admiralty were vested with the same admiralty jurisdiction
which was vested in the High Court of England ‘whether
existing by virtue of any statute or otherwise’ and they
were entitled to exercise the same jurisdiction in like
manner and to the same extent as the High Court in England.
We shall now read the provisions of the Colonial Courts of
Admiralty Act, 1890, so far as they are material.
"2. (1). Colonial Courts of Admiralty - Every Court
of law in a British possession, which is for the
time being declared in pursuance of this Act to be
a court of Admiralty, or which, if no such
declaration is in force in the possession, has
therein original unlimited civil jurisdiction, shall
be a court of Admiralty, with the jurisdiction is
this Act mentioned, and may for the
1027
purpose of that jurisdiction exercise all the
powers which it possesses for the purpose of its
other civil jurisdiction, and such court in
reference to the jurisdiction conferred by this Act
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is in this Act referred to as a Colonial Court of
Admiralty
............................
(2) The jurisdiction of a Colonial Court of
Admiralty shall, subject to the provisions of this
Act, be over the like places, persons, matters, and
things, as the Admiralty jurisdiction of the High
Court in England, whether existing by virtue of any
statute or otherwise, and the Colonial Court of
Admiralty may exercise such jurisdiction in like
manner and to as full an extent as the High Court
in England, and shall have the same regard as that
Court to international law and the comity of
nations.
(3)....................................
Provided as follows :
(a) Any enactment in an Act of the Imperial
Parliament referring to the Admiralty jurisdiction
of the High Court in England, when applied to a
Colonial Court of Admiralty in a British
possession, shall be read as if the name of that
possession were therein substituted for England and
Wales; and ......."
(emphasis supplied)
These provision show that the admiralty jurisdiction
conferred on the Colonial Courts of Admiralty was identical
to that of the High Court in England. The Colonial Courts
of Admiralty were, in relation to their respective
territories, invested with the same jurisdiction ’over
places, persons, matters and things" as in the case of the
English High Court in respect of England and Wales. This
jurisdiction was derived from the statutes which then
existed in England - namely, the Admiralty Court Acts of
1840 and 1861, as well as from other sources such as custom
and practice as recognised by the Courts exercising
admiralty jurisdiction. This is clear from the words
"whether existing by virtue of any statute or otherwise".
The proviso makes the position even clearer. What the
Colonial Courts of Admiralty Act, 1890 did was not to
incorporate any particular English Statute into Indian law
for the purpose of conferring admiralty jurisdiction, but to
assimilate the competent courts in India to
1028
the position of the English High Court in the exercise of
admiralty jurisdiction. It would, therefore, appear that
any expansion of Admiralty jurisdiction of the High Court in
England was intended likewise to expand the jurisdiction of
the Colonial Court of Admiralty. This should have been
regarded as the position with respect to a Colonial Court of
unlimited jurisdiction.
Section 3 of this Act provides :
"(3) - The legislature of a British possession may
by any Colonial law -
(a) declare any court of unlimited civil
jurisdiction, whether original or
appellate, in that possession to be a
Colonial Court of Admiralty..."
(b) confer upon any inferior or subordinate
court in that possession such partial or
limited Admiralty jurisdiction under such
regulations and with such appeal (if any)
as may seem fit:
Provided that any such Colonial law
shall not confer any jurisdiction which
is not by this Act conferred upon a
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Colonial Court of Admiralty."
Section 3 thus draws a distinction between courts of
unlimited jurisdiction falling under clause (a) and courts
of limited jurisdiction falling under clause (b). The
admiralty jurisdiction of the former was wider than that
which was conferred on the latter.
Section 7 confers power to make rules of court to
regulate the procedure and practice of the court in the
exercise of its admiralty jurisdiction. This section
provides :-
"S.7. (1) Rules of court for regulating the
procedure and practice (including fees and costs)
in a court in a British possession in the exercise
of the jurisdiction conferred by this Act, whether
original or appellate, may be made by the same
authority and in the same manner as rules touching
the practice, procedure, fees, and costs in the
said court in the exercise of its ordinary civil
jurisdiction respectively are made.
...............................
1029
(2) .............................
(3) Such rules may provide for the exercise of any
jurisdiction conferred by this Act by the full
court, or by any judge or judges thereof, and
subject to any rules, where the ordinary civil
jurisdiction of the court can in any case be
exercised by a single judge, any jurisdiction
conferred by this Act may in the like case be
exercised by a single judge."
By virtue of this provision, admiralty rules were made
for Calcutta and Bombay High Courts. The Madras High Court
adopted admiralty rules by virtue of the powers conferred by
the Letters Patent of the High Court and the Government of
India Act, 1915.
By Act 16 of 1891, certain courts in British India were
declared to be Colonial Courts of Admiralty. The High
Courts of Judicature at Fort William in Bengal, at Madras
and at Bombay were three of the six Courts declared to be
Colonial Courts of Admiralty.* The preamble to this Act, in
so declaring, stated :-
"WHEREAS it is provided by the Colonial Courts of
Admiralty Act, 1890, that the Legislature of a
British possession may by any colonial law declare
any Court of unlimited civil jurisdiction in that
possession to be a Colonial Court of Admiralty;
..................."
It was because of the unlimited civil jurisdiction that
was already vested in these High Courts that they were
declared to be Colonial Courts of Admiralty having the same
jurisdiction in extent and quality as was vested in the High
Court of England by virtue of any statute or custom. The
High Courts were declared to be competent to regulate their
procedure and practice in exercise of admiralty jurisdiction
in accordance with the Rules made in that behalf. There is,
therefore, neither reason nor logic in imposing a fetter on
the jurisdiction of these High Courts by limiting it to the
provisions of an imperial statute of 1861 and freezing any
further growth of jurisdiction. This is all the more true
because the Admiralty Court Act, 1861 was in substance
reappealed in England a long time ago. See Halsbury’s Laws of
England 4th ed.
----------------------------------------
* (1) The other Courts are : (a) The Court of the
Recorder of Rangoon (b) The Court of the Resident at
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Aden (c) The District Court of Karachi.
1030
Vol.I(1), para 307; Halsbury’s Statutes of England, Vol. I,
p.9
Assuming that the admiralty powers of the High Courts
in India are limited to what had been derived from the
Colonial Courts of Admiralty Act, 1890, that Act, having
equated certain Indian High Courts to the High Court of
England in regard to admiralty jurisdiction, must be
considered to have conferred on the former all such powers
which the latter enjoyed in 1890 and thereafter during the
period preceding the Indian Independence Act, 1947. What
the Act of 1890 did was, as stated earlier, not to
incorporate any English statute into Indian law, but to
equate the admiralty jurisdiction of the Indian High Courts
over places, persons, matters and things to that of the
English High Court. As the admiralty jurisdiction of the
English High Courts expanded with the progress of
legislation, and with the repeal of the earlier statutes,
including in substance the Admiralty Court Acts of 1840 and
1861, it would have been reasonable and rational to
attribute to the Indian High Courts a corresponding growth
and expansion of admiralty jurisdiction during the pre-
independence era. But a restrictive view was taken on the
question in the decisions of the High Courts cited above.
There is no reason why the jurisdiction of the Indian
High Courts should have been considered to have frozen and
atrophied on the date of the Colonial Courts of Admiralty
Act, 1890. If this had not been considered to have
happened, and a liberal construction had been adopted by
courts, the admiralty jurisdiction of the High Court would
in any case have been considered to have progressed up to
the level of the English Administration of Justice Act,
1928, which was the last of a series of enactments in
England on the subject prior to 1947, and consequently the
Indian High Court would have been treated as a consolidated
court on the basis of (English) Supreme Court of Judicature
(Consolidation) Act, 1925, exercising identical and
unlimited jurisdiction, and not a distinct or ‘prescribed’
admiralty jurisdiction, limited and confined to the
Admiralty Court Act, 1861, as it is now treated to be by
some of the High Courts in the decisions cited above. All
this is perhaps the result of the reasoning in the decision
of the Privy Council in The Yuri Maru v. The Waron, 1927 AC
906.
The Yuri Maru which arose from Canada concerned the
jurisdiction of the Exchequer Court. The decision is
summarised in the head note as follows:
"The effect of s. 2, sub-s 2, of the Colonial
Courts of Admiralty
1031
Act, 1890 (Imp.) is to limit the jurisdiction of
Colonial Courts of Admiralty established under the
Act to the Admiralty jurisdiction of the High Court
of England, as it existed at the passing of the
Act; the extension of the Admiralty jurisdiction of
the High Court by the Administration of Justice
Act, 1920 (Imp.), s.22, repealed and re-enacted by
the Supreme Court of Judicature (Consolidation)
Act, 1925 (imp.), s.22, does not apply to Colonial
Courts of Admiralty.
Consequently, the Exchequer Court of Canada, which
was established by the Admiralty Act (R.S. Can.,
1906, c.141) as a Colonial Court of Admiralty, has
not, under s. 22, sub-s. 1(xii), of the above
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Imperial Act of 1925, jurisdiction in rem to try an
action for damages for breach of a charterparty.
.................."
The Privy Council thus rejected the contention that the
jurisdiction of the Canadian Court of Admiralty was
automatically extended with the progress of legislation in
England widening the admiralty jurisdiction of the English
High Court. Nevertheless, the Privy Council significantly
left it to the Canadian legislature to pass appropriate laws
for widening the jurisdiction of the Canadian Courts.
Speaking for the Board, Lord Merrivale concluded :-
"On the whole, the true intent of the Act appears
to their Lordships to have been to define as a
maximum of jurisdictional authority for the Courts
to set up thereunder, the Admiralty jurisdiction of
the High Court in England as it existed at the time
when the Act passed. What shall from time to time
be added or excluded is left for independent
legislative determination".
The Exchequer Court of Canada was established by the
Admiralty Act R.S. Canada, 1906, c. 141, as a Colonial Court
of Admiralty. It is not clear whether that Court was in its
jurisdiction comparable to the Indian High Courts. Assuming
that it was comparable at the relevant time, and whatever be
the relevance of The Yuri Maru (supra) to Courts like the
Exchequer Court of canada, we see no reason why the
jurisdiction of the Indian High Courts, governed as they now
are by the Constitution of India, should on any way be
subjected to the jurisdictional fetters imposed by the Privy
Council in that
1032
decision. Legal history is good guidance for the future,
but to surrender to the former is to lose the latter.
A short account of the English statutes on admiralty
jurisdiction and the power exercised by the English Courts
over foreign ships will be helpful in understanding the
nature and extent of the admiralty jurisdiction of the
Indian Courts. We shall, therefore, briefly discuss the
salient features of the admiralty jurisdiction of the
English Courts.
The customs and practices of the commercial and
maritime courts and the Law Merchant administered by them
and the jurisdiction assumed by the Admiral over ships and
things at sea and the conflict which arose between the Court
presided over by him and the common law and equity courts
leading to curtailment of the powers of the Admiral and
ultimately resulting in consolidation of all the courts by
the Supreme Court of Judicature Act. 1873 (which came into
force in 1875) are vividly described by eminent Scholars of
English legal history and maritime law. See Holdworth’s A
History of English Law, Volumes I, 5 and 8; Roscoe’s
Admiralty Practice, 5th ed.; Marsden: Select Pleas of the
Court of Admiralty, Volumes I and II; Law and Custom of the
SEa, ibid Volumes I and II; Benedict on Admiralty, 6th ed.
(1940) Vol. I; Gilmore and Black, Law of Admiralty, 1957.
The wide jurisdiction vested in the English Courts is
derived from ancient principles of Maritime Law developed by
custom and practice as well as from subsequent statutes many
of which have incorporated the provisions of International
Conventions unifying the laws practised in several maritime
countries. It is beyond the scope of this judgment to
embark on a survey of maritime history except to notice that
both the Admiralty Court and the Common Law Courts claimed
jurisdiction over cases governed by maritime law. Although
admiralty Judges were often compelled to abandon
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jurisdiction to the Courts of Common Law in various matters,
maritime cases involving hypothecation, salvages, torts
committed on the high seas and the like, where the Common
Law Courts could not give effective redress, were left to
the jurisdiction of the admiralty Judges. The admiralty
had, however, ‘fallen into a feeble and neglected condition
and for long its proceedings excited no attention’. But in
the Eighteenth Century, the learning and ability of Lord
Stowell ‘raised the Court to a position of the highest
importance’ (Roscoe’s Admiralty Practice, 5th ed. p. 14).
1033
In the words of Holdswoth*, "Modern legislation has
restored to the court of Admiralty many of the powers, and
much of the jurisdiction of which it had been deprived in
the seventeenth century. ...But Admiralty law has lost the
international character which it once possessed. It is
essentially English Law. "The law which is administered in
the Admiralty Court of England is the English maritime law.
It is not the ordinary municipal law of the country, but it
is the law which the English court Admiralty, either by Act
of Parliament or by reiterated decisions and traditions and
principles, has adopted as the English Maritime law,
‘Neither the laws of the Rhodians, nor of Oleron, nor of
Visby, nor of the Hanse towns, are of themselves any part of
Admiralty law of England....But they contain many principles
and statements of marine practice, which, together with
principles found in the Digest, and in the French, and other
Ordinances, were used by the judges of the English court of
Admiralty, when they were moulding and reducing to form the
principles and practice of their court’.*
The Admiralty Court Act, 1840 was the first of a series
of statutes extending and defining the jurisdiction of the
High Court of Admiralty in England. This Act was followed
by the Admiralty Court Act, 1861 confering larger powers
upon the High Court of Admiralty. Section 6 of this Act
empowered the High Court of Admiralty to assume jurisdiction
over foreign ships in respect of claims to cargo carried
into any port in England or Wales. Significantly, the
Act did not apply to outward cargo.
----------------------------------------
* A History of English Law, W.S. Holdswoth, vol. 1, pp.
558-59.
The Gaetano and Maria, (1882) 7PD at p. 143.
* The Gas Floot Whitton, N:2 (1896) P. at pp. 47. 48."
* The section reads :
"6. As to Claims for Damage to Cargo imported. -
The High Court of Admiralty shall have Jurisdiction
over any Claim by the Owner or Consignee or
Assignee of any Bill of Lading of any Goods carried
into any Port in England or Wales in any Ship. for
Damage done to the Goods or any Part thereof by the
Negligence or Misconduct of or for any Breach of
Duty or Breach of Contract on the Part of the
Owner. Master, or Crew of the Ship, unless it is
shown to the Satisfaction of the Court that at the
Time of the Institution of the Cause any Owner or
Part Owner of the Ship is domiciled in England or
Wales : Provided always, that if in any such Cause
the Plaintiff do not recover Twenty Pounds he shall
not be entitled to any Costs. Charges, or Expenses
incurred by him therein, unless the Judge shall
certify that the Cause was a fit one to be tried in
the said Court."
(emphasis supplied)
See the observation of Dr. Lushington in the "Kasan"
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(January 13, 1863) and in the "Bahia" (April 21, 1863
English Report, Vol. 167. p. 268, 298.
1034
Section 7 of the Act, however, conferred jurisdiction on the
High Court of Admiralty "over any claim for damage done by
any ship". This Act was followed by the Judicature Act of
1873, which came into force in 1875 and which merged the
High Court of Admiralty with the High Court of Justice
resulting in a fusion of admiralty law, common law and
equity. It is of interest to note that the provision
contained in section 6 of the Admiralty Court Act, 1861
limiting the jurisdiction of the Admiralty Court to claims
respecting inward cargo was discarded by the Administration
of Justice Act, 1920 which extended the jurisdiction of the
High Court to (a) any claim arising out of an agreement
relating to the use or hire of a ship; (b) any claim
relating to the carriage of goods in any ship, and (c) any
claim in tort in respect of goods carried in any ship. The
Act thus applied to both inward and outward cargoes.
The Admiralty Court Act, 1861 and the subsequent
enactments were consolidated by the Supreme Court of
Judicature (consolidation) Act, 1925. The admiralty
jurisdiction of the English High Court was redefined by this
Act to include various matters such as any claim "for damage
done by a ship"; any 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". This jurisdiction was, however,
not available if "at the time of the institution of the
proceedings any owner or part owner of the ship was
domiciled in England" [See section 22 (1), (iv) and (vii)].
By the Administration of Justice Act, 1928, the jurisdiction
vested in the High Court by the Supreme Court of Judicature
(Consolidation) Act, 1925 was declared to belong to all
divisions of the High Court. The admiralty Court was thus
empowered to entertain, apart from actions in rem, any claim
in personam which could be brought in any other division of
the High Court.
By the Administration of Justice Act, 1956, the
admiralty jurisdiction of the High Court was further
widened and redefined 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 the commencement of
the Supreme Court of Judicature Act, 1873 (i.e., 1.11.1875),
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 or aircraft 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
1035
Division". Sub-Section (4) of this section removed the
restriction based on the ownership of the ship. It says
that the jurisdiction applied to all ships or aircraft,
"whether British or not and whether registered or not and
wherever the residence or domicile of their owners may be"
and "in relation to all claims, wheresoever arising". The
jurisdiction in regard to the questions or claims specified
under section 1(i) includes "any claim for damage done by a
ship", "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" [See clauses (d), (g) & (h)].
These claims are now specifically mentioned under
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clauses (e), (g) and (h) respectively of section 20(2) of
the Supreme Court Act, 1981, amongst other claims, as
falling under the Admiralty jurisdiction of the High Court.
Part II of this Act is derived substantially from Part I of
the 1956 Act which was enacted to give effect to the
Brussels Convention of 1952 relating to the arrest of sea-
going ships and the rules concerning civil jurisdiction in
matters of collision (Cmd 8954).
Section 20 of the Supreme Court Act, 1981 enumerates
various questions and claims falling under the admiralty
jurisdiction of the English High Court. Apart from matters
covered by the Merchant Shipping Acts 1894 to 1979 [referred
to in sub-section (3)] and certain other matters, various
questions and claims are enumerated in sub-section (2).
They include: "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; any claim for damage received by a ship; and
any claim for damage done by a ship.*
-----------------------------------------
* The specific questions and claims enumerated in sub-
section (2) of section 20 of the Supreme Court Act,
1981 are :-
"(a) any claim to the possession or ownership of a ship
or to the ownership of any share therein;
(b) any question arising between the co-owners of a
ship as to possession, employment or earnings of that
ship;
(c) any claim in respect of a mortgage of or charge on a
ship or any share therein;
(d) any claim for damage received by a ship;
(e) any claim for damage done by a ship;
(f) any claim for loss of life or personal injury
sustained in consequence of any defect in a ship or in
her apparel or equipment, or in consequence of the
wrongful act, neglect or default of -
footnote contd. on next page
1036
Sub-section (7) of this section specifically provides
that the admiralty jurisdiction of the High Court extends to
"all ships or aircrafts, whether British or not and wherever
the residence or domicile of their owners may be, and to all
claims wherever arising". It reads:
Sub-Section (7). The preceding provisions of this
section apply-
(a) in relation to all ships or aircraft, whether
British or not and wherever the residence or
domicile of their owners may be;
--------------------------------
(i) the owners, charterers or persons in possession or
control of a ship; or
(ii) the master or crew of a ship, or any other person
for whose wrongful acts, neglects or defaults the
owners, charterers or persons in possession or
control of a ship are responsible,
being an act, neglect or default in the navigation
or management of the ship, in the loading,
carriage or discharge of goods, on. in or from the
ship, or in the embarkation, carriage or
disembarkation of persons on, in or from the ship.
(g) any claim for loss of or damage to goods carried
in a ship;
(h) 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;
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(i) any claim in the nature of salvage (including any
claim arising by virtue of the application, by or
under section 51 of the Civil Aviation Act 1949, of
the law relating to salvage to aircraft and their
apparel and cargo);
(j) any claim in the nature of towage in respect of a
ship or an aircraft;
(k) any claim in the nature of pilotage in respect of a
ship or an aircraft;
(l) any claim in respect of goods or materials supplied
to a ship for her operation or maintenance :
(m) any claim in respect of the construction, repair or
equipment of a ship or in respect of dock charges
or dues;
(n) any claim by a master or member of the crew of a
ship for wages (including any sum allotted out of
wages or adjudged by a superintendent to be due by
way of wages);
(o) any claim by a master, shipper, chartered or agent
in respect of disbursements made on account of a
ship;
(p) any claim arising out of an act which is or is
claimed to be a general average act;
(q) any claim arising out of bottomry;
(r) any claim for the forfeiture or condemnation of a
ship or of goods which are being or have been
carried, or have been attempted to be carried, in a
ship, or for the restoration of a ship or any such
goods after seizure, or for droughts of Admiralty."
1037
(b) in relation to all claims, wherever arising
(including, in the case of cargo or wreck
salvage, claims in respect of cargo or wreck
found on land); and
(c) so far as they relate to mortgages and
charges, to all mortgages or charges, whether
registered or not and whether legal or
equitable,including mortgages and charges created
under foreign law:
Provided that nothing in this sub-section
shall be construed as extending the cases in which
money or property is recoverable under any of the
provisions of the Merchant Shipping Acts 1894 to
1979".
This jurisdiction is wide enough to cover all claims in
tort or contract arising out of any agreement for carriage
of goods by sea.*
The whole jurisdiction of the English High Court is now
vested in all the divisions alike. All Divisions of the
High Court and all the Judges of that Court have equal
power, authority and jurisdiction, although admiralty
actions are assigned to the Queen’s Bench Division and taken
up by the Admiralty Court. The special requirements of an
action in personam, namely, the habitual residence or place
of business of the defendant or the cause of action having
their nexus with England and Wales or the determination of a
connected matter in the English High Court or the submission
of the defendant to the jurisdiction of that court, are not
applicable to a proceeding commenced as an admiralty action
in rem. See O. 75, rule 4(3) of the Rules of the Supreme
Court, 1965.*
The Civil Jurisdiction and Judgments Act, 1982 enacted
into English Law and Scottish Law the EEC Convention on
Jurisdiction and Enforcement of Judgments in Civil and
Commercial Matters.
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Describing the unified court structure in England,
Jackson sums up:
"The Admiralty Court developed independently,
having its own battle with common law courts over
jurisdictional boundaries.
------------------------------
* See the Principle stated in The Fehmam. (1958) 1 All
E.R. 333.
See Halsbury, op. cit. 4th ed. Vol. I(I) para 309. See
also Supreme Court Act, 1981.
* See also the editor’s general note on O.75. rule 5 on
the practice of the English High Court.
1038
During the 18th and early 19th centuries it
influence and power decreased, but through statutes
of 1840 and 1861 the court received a firm
foundation on which it has built since. It came in
from the cold into the general union of courts in
1873-5 and is now integrated into the High Court,
being a branch of the Queen’s Bench Division.
.....................................................
Once under the umbrella of the unified court
structure, common law and equitable principles
became directly available in the Admiralty Court.
No longer need claimants have to seek these
elsewhere and no longer did jurisdictional
boundaries necessarily indicate the availability of
substantive rights and remedies."
[D.C. Jackson, Enforcement of Maritime Claims,
(1985) p. 8}
"The law of admiralty, or maritime law, .... (is the)
corpus of rules, concepts, and legal practices governing ...
the business of carrying goods and passengers by water."
(Gilmore and Black, The Law of Admiralty, page (1). The
vital significance and the distinguishing feature of an
admiralty action in rem is that this jurisdiction can be
assumed by the coastal authorities in respect of any
maritime claim by arrest of the ship, irrespective of the
nationality of the ship or that of its owners, or the place
of business or domicile or residence of its owners or the
place where the cause of action arose wholly or in part.
"..... In admiralty the vessel has a juridicial
personality, an almost corporate capacity, having not only
rights but liabilities (sometimes distinct from those of the
owner) which may be enforced by process and decree against
the vessel, binding upon all interested in her and
conclusive upon the world, for admiralty in appropriate
cases administers remedies in rem, i.e., against the
property, as well as remedies in personam, i.e., against the
party personally...". Benedict, The Law of American
Admiralty, 6th ed. Vol. I p.3.
Admiralty Law confers upon the claimant a right in rem
to proceed against the ship or cargo as distinguished from a
right in personam to proceed against the owner. The arrest
of the ship is regarded as a mere procedure to obtain
security to satisfy judgment. A successful plaintiff in
1039
an action in rem has a right to recover damages against the
property of the defendant. ‘The liability of the shipowner
is not limited to the value of the res primarily proceeded
against ... An action .... though originally commenced in
rem, becomes a personal action against a defendant upon
appearance, and he becomes liable for the full amount of a
judgment unless protected by the statutory provisions for
the limitation of liability’. (Roscoe’s Admiralty Practice,
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5th ed. p.29)
The foundation of an action in rem, which is a
peculiarity of the Anglo-American law, arises from a
maritime lien or claim imposing a personal liability upon
the owner of the vessel. A defendant in an admiralty action
in personam is liable for the full amount of the plaintiff’s
established claim. Likewise, a defendant acknowledging
service in an action in rem is liable to be saddled with
full liability even when the amount of the judgment exceeds
the value of the res or of the bail provided. An action in
rem lies in the English High Court in respect of matters
regulated by the Supreme Court Act, 1981, and in relation to
a number of claims the jurisdiction can be invoked not only
against the offending ship in question but also against a
‘sistership’ i.e., a ship in the same beneficial ownership
as the ship in regard to which the claim arose.
"The vessel which commits the aggression is treated
as the offender, as the guilty instrument or thing
to which the forfeiture attaches, without any
reference whatsoever to the character or conduct of
the owner...."
Per Justice Story, The United States v. The Big
Malek Adhel, etc., [43 US (2 How.) 210, 233 (1844)]
Merchant ships of different nationalities travel from
port to port carrying goods or passengers. They incur
liabilities in the course of their voyage and they subject
themselves to the jurisdiction of foreign States when they
enter the waters of those States. They are liable to be
arrested for the enforcement of maritime claims, or seized
in execution or satisfaction of judgments in legal actions
arising out of collisions, salvage, loss of life or personal
injury, loss of or damage to goods and the like. They are
liable to be detained or confiscated by the authorities of
foreign States for violating their customs regulations,
safety measures, rules of the road, health regulations, and
for other causes. The coastal State may exercise
1040
its criminal jurisdiction on board the vessel for the
purpose of arrest or investigation in connection with
certain serious crimes. In the course of an international
voyage, a vessel thus subjects itself to the public and
private laws of various countries. A ship travelling from
port to port stays very briefly in any one port. A
plaintiff seeking to enforce his maritime claim against a
foreign ship has no effective remedy once it has sailed away
and if the foreign owner has neither property nor residence
within jurisdiction. The plaintiff may therefore detain the
ship by obtaining an order of attachment whenever it is
feared that the ship is likely to slip out of jurisdiction,
thus leaving the plaintiff without any security.
A ship may be arrested (i) to acquire jurisdiction; or
(ii) to obtain security for satisfaction of the claim when
decreed; or (iii) in execution of a decree. In the first
two cases, the court has the discretion to insist upon
security being furnished by the plaintiff to compensate the
defendant in the event of it being found that the arrest was
wrongful and was sought and obtained maliciously or in bad
faith. The claimant is liable in damages for wrongful
arrest. This practice of insisting upon security being
furnished by the party seeking arrest of the ship is
followed in the United States, Japan and other countries.
The reason for the rule is that a wrongful arrest can cause
irreparable loss and damages to the shipowner; and he should
in that event be compensated by the arresting party. (See
Arrest of Ships by Hill, Soehring, Hosoi and Helmer, 1985).
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The attachment by arrest is only provisional and its
purpose is merely to detain the ship until the matter has
been finally settled by a competent court. The attachment
of the vessel brings it under the custody of the marshal or
any other authorized officer. Any interference with his
custody is treated as a contempt of the court which has
ordered the arrest. But the marshal’s right under the
attachment order is not one of possession, but only of
custody. Although the custody of the vessel has passed from
the defendant to the marshal, all the possessory rights
which previously existed continue to exist, including all
the remedies which are based on possession. The warrant
usually contains a monition to all persons interested to
appear before the court on a particular day and show cause
why the property should not be condemned and sold to satisfy
the claim of the plaintiff.
1041
The attachment being only a method of safeguarding the
interest of the plaintiff by providing him with a security,
it is not likely to be ordered if the defendant or his
lawyer agrees to "accept service and to put in bail or to
pay money into court in lieu of bail". (See Halsbury’s
Laws of England, 4th edn. Vol. 1, p. 375 etc.).
The service of the warrant is usually effected by
affixing it on the main mast or single mast of the ship. A
ship which has been arrested under an order of attachment
may be released by the court if sufficient bail is put in to
cover the claim of the plaintiff as well as the costs of the
action. The sureties are liable for the amount entered in
the bail bond.
If the ship or cargo under arrest before judgment has
not been released by the defendant by putting in sufficient
bail and if the property is found deteriorating, the court
has the power to order the sale of the property after
notice has been duly issued to the parties interested.
If the plaintiff has finally obtained a decree of
condemnation and sale of the ship, the court will issue an
order to the competent officer commanding him to sell the
property, in execution of the decree, and to bring the
proceeds into court. Thereupon the officer shall issue
proper notice and arrange for the sale of the property by
auction. The proceeds of the sale are paid into the
registry of the court and shall be disposed of by the court
according to law.
A personal action may be brought against the defendant
if he is either present in the country or submits to
jurisdiction. If the foreign owner of an arrested ship
appears before the court and deposits security as bail for
the release of his ship against which proceedings in rem
have been instituted, he submits himself to jurisdiction.
An action in rem is directed against the ship itself to
satisfy the claim of the plaintiff out of the res. The ship
is for this purpose treated as a person. Such an action may
constitute an inducement to the owner to submit to the
jurisdiction of the court, thereby making himself liable to
be proceeded against by the plaintiff in personam. It is,
however, imperative in an action in rem that the ship should
be within jurisdiction at the time the proceedings are
started. A decree of the court in such an action binds not
merely the parties to the writ but everybody in the world
who might dispute the plaintiff’s claim.
1042
It is by means of an action in rem that the arrest of a
particular ship is secured by the plaintiff. He does not
sue the owner directly and by name; but the owner or any one
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interested in the proceedings may appear and defend. The
writ is issued to "owners and parties interested in the
property proceeded against." The proceedings can be
started in England or in the United States in respect of a
maritime lien, and in England in respect of a statutory
right in rem. A maritime lien is a privileged claim against
the ship or a right to a part of the property in the ship,
and it "travels" with the ship. Because the ship has to
"pay for the wrong it has done", it can be compelled to do
so by a forced sale. (See The Bold Buccleaugh, (1851) 7
Moo. PC 267). In addition to maritime liens, a ship is
liable to be arrested in England in enforcement of statutory
rights in rem (Supreme Court Act, 1981). If the owner does
not submit to the jurisdiction and appear before the court
to put in bail and release the ship, it is liable to be
condemned and sold to satisfy the claims against her. If,
however, the owner submits to jurisdiction and obtains the
release of the ship by depositing security, he becomes
personally liable to be proceeded against in personam in
execution of the judgment if the amount decreed exceeds the
amount of the bail. The arrest of the foreign ship by means
of an action in rem is thus a means of assuming jurisdiction
by the competent court.
The admiralty action in rem, as practised in England or
in the United States, is unknown to the civil law. In
countries following the civil law, all proceedings are
initiated by actions in personam. The President of the
Court having competence in the matter has the power to order
an attachment of the ship if he is convinced that the
plaintiff is likely to lose his security unless the ship is
detained within jurisdiction. His hands are not fettered by
the technicalities of an action in rem and the scope of the
proceedings are not limited to maritime liens or claims.*
According to the French law, arrest of a ship is allowed
even in respect of non-maritime claims and whether or not
the claimant is a secured or unsecured creditor. A vessel
may be arrested either for the purpose of mobilising the
vessel as security (Saisie conservatoire) or in execution of
judgment (Saisie Execution) whether or not the claim has any
relation to the vessel. Arrest of the vessel has the
advantage of forcing the owner to furnish security to
guarantee satisfaction of any decree that may be passed
against him. On
-----------------------------
* See D.C. Jackson, Enforcement of Maritime Claims,
(1985) Appendix 5, p. 437 et seq.
1043
furnishing sufficient security with the Court, he is usually
allowed to secure the release of the vessel. Maritime law is
part of the general law of France and other ‘civil law
countries’ and is dealt with by the ordinary courts or
tribunals. The presence of any property belonging to the
defendant within the territorial jurisdiction confers
jurisdiction on the French Court. (See the observation of
Lord Diplock in The Jade (1976) 1 All. E.R. 921, 923).
The real purpose of arrest in both the English and the
Civil Law systems is to obtain security as a guarantee for
satisfaction of the decree, although arrest in England is
the basis of assumption of jurisdiction, unless the owner
has submitted to jurisdiction. In any event, once the arrest
is made and the owner has entered appearance, the
proceedings continue in personam. All actions in the civil
law - whether maritime or not - are in personam, and arrest
of a vessel is permitted even in respect of non-maritime
claims, and the vessel is treated as any other property of
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the owner, and its very presence within jurisdiction is
sufficient to clothe the competent tribunal with
jurisdiction over the owner in respect of any claim. (See
D.C.Jackson, Enforcement of Maritime Claims, (1985) Appendix
5). Admiralty actions in England, on the other hand,
whether in rem or in personam, are confined to well defined
maritime liens or claims and directed against the res(ship,
cargo and freight) which is the subject-matter of the
dispute or any other ship in the same beneficial ownership
as the res in question.
Maritime law is as much a part of the general legal
system as any other branch of the law. With the merger of
the Admiralty and Common Law Courts in England in 1875 and
the fusion of their legal precepts and concepts, this branch
of the law, despite its peculiarities about actions in rem,
is no longer treated as a separate and independent branch.
It is not the exclusive preserve of the English High Court,
for certain county courts in that country are specially
authorised to exercise this jurisdiction. This is much more
true of the civil law system where no distinction is drawn
between maritime law and other branches of the law, and they
are administered alike by the same courts or tribunals.
It may not be correct to say that the admiralty
jurisdiction of the English Courts is dependent entirely on
statutes. It may be true in a very limited sense as regards
the jurisdiction of the High Court after the merger of the
High Court of Admiralty with the High Court of Justice by
the
1044
Supreme Court of Judicature Act, 1873 which came into force
in 1875: See Supreme Court of Judicature (Commencement) Act,
1874. Even so, statutes are codifications of legal
principles developed by the decisions of Courts and those
principles remain the life-blood of the statutes. The
observation of Lord Diplock in The Jade (1976) 1 All. E.R.
920, on which much reliance is placed by Mr. Ramachandran in
support of his arguments, has to be so understood. (See also
Halsbury’s Laws of England, Vol. 1, para 307).
Remedy for enforcement of maritime liens was available
prior to the introduction of statutes. "Admiralty law was
derived from the laws of Oleron, supplemented by the civil
law" Per Lord Halsbury, L.C; Currie v. M.Knight, [1897] AC
97. For a long time the Admiralty Court developed the law
independently fighting its battles with the Common Law
Courts on the question of jurisdictional boundaries. By
statutory intervention the court structure came to be
unified and substantive rights and remedies became available
without regard to jurisdictional boundaries. Although
statutes now control the field, much of the admiralty law is
rooted in judicial decisions and influenced by the impact of
civil law, common law and equity. The ancient maritime codes
like the Rhodian Sea Law, the Basilika, the Assizes of
Jerusalem, the Rolls of Oleron, the Laws of Visby, the
Hanseatic Code, the Black Book of the British Admiralty,
Consolato del Mare, and others are, apart from statute, some
of the sources from which the law developed in England. Any
attempt to confine admiralty or maritime law within the
bounds of statutes is not only unrealistic but incorrect.
Although this branch of the law in England is now governed
generally by statutes, the law in all its aspects can be
understood only by viewing it in the context of decisions of
courts and the general principles which are common to common
law and equity.
Unlike in the "civil law countries", there is no
maritime code in England containing all aspects of maritime
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law. The Merchant Shipping Acts and the Carriage of Goods by
Sea Act contain the substantive rules, but the
jurisdictional and other aspects of maritime claims have to
be traced to numerous other statutes and sources. English
Maritime Law ‘is still composed of rules having their roots
in statute, rules of court and judicial doctrine of
Admiralty, common law and equity’. (See D.C. Jackson,
Enforcement of Maritime Claims, 1985, p.9). See also
Halsbury, op. cit., Vol. (1), para 307. As Christopher Hill
puts it: "..... Britain is a
1045
common law country and that Admiralty law has been
superimposed over the years by various statutory enactments
from time to time. The right to seize a vessel by legal
process is therefore partly based on rights conferred by
general maritime law and partly upon the right to take legal
action of this nature granted by statute ....". Maritime
Law, 2nd ed. p. 93.
In tracing the history of admiralty law in India, it is
likewise misleading and incorrect to confine it to statutes.
Statutes have been codifications of rules of law as
developed by usage, practice and custom. As stated by
Westropp, C.J., of the Bombay High Court in Bardot & Anr. v.
The American Ship Or Vessel ‘Augusta’, 1873(x) Bombay High
Court Reports, 110, at p. 113:-
"...If we have jurisdiction to entertain this suit,
it must be sought for in the general maritime law
administered by Courts of Admiralty
...................................................
.... we must hold it to be quite clear that the
Statutes 3 & 4 Vict. c. 65 (1840), 24 Vict. c. 10
(1861), and 26 & 27 Vict. c. 24 (1863), do not
increase or in any wise affect our jurisdiction
either in Admiralty or Vice-Admiralty, and that if
we have jurisdiction to entertain this cause, that
jurisdiction must be sought for outside those
Statutes."
Where statutes are silent and remedy has to be sought by
recourse to basic principles, it is the duty of the court to
devise procedural rules by analogy and expediency. Actions
in rem, as seen above, were resorted to by courts as a
device to overcome the difficulty of personal service on the
defendant by compelling him to enter appearance and accept
service of summons with a view to furnishing security for
the release of the res; or, in his absence, proceed against
the res itself, by attributing to it a personality for the
purpose of entering a decree and executing the same by sale
of the res. This is a practical procedural device developed
by the courts with a view to rendering justice in
accordance with substantive law not only in cases of
collision and salvage, but also in cases of other maritime
liens and claims arising by reason of breach of contract
for the hire of vessels or the carriage of goods or other
maritime transactions, or tortious acts, such as conversion
or negligence occurring in connection with the carriage of
goods. Where substantive law demands justice for the party
aggrieved, and the statute has not provided the remedy, it
is the duty of the court to devise
1046
procedure by drawing analogy from other systems of law and
practice. To the courts of the "civil law countries" in
Europe and other places, like problems seldom arise, for all
persons and things within their territories (including
their waters) fall within their competence to deal with.
They do not have to draw any distinction between an action
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in rem and an action in personam.
It is likewise within the competence of the appropriate
Indian Courts to deal, in accordance with the general
principles of maritime law and the applicable provisions of
statutory law with all persons and things found within their
jurisdiction. The power of the court is plenary and
unlimited unless it is expressly or by necessary implication
curtailed. Absent such curtailment of jurisdiction, all
remedies which are available to the courts to administer
justice are available to a claimant against a foreign ship
and its owner found within the jurisdiction of the concerned
High Court. This power of the court to render justice must
necessarily include the power to make interlocutory orders
for arrest and attachment before judgment.
The High Court in India are superior courts of record.
They have original and appellate jurisdiction. They have
inherent and plenary powers. Unless expressly or impliedly
barred, and subject to the appellate or discretionary
jurisdiction of this Court, the High Courts have unlimited
jurisdiction, including the jurisdiction to determine their
own powers. (See Naresh Shridhar Mirajkar and Ors., v. State
of Maharashtra and Anr., [1966] 3 SCR 744. As stated in
Halsbury’s Laws of England. 4th edition, Vol. 10, para 713 :
"Prima facie, no matter is deemed to be beyond the
jurisdiction of a superior court unless it is
expressly shown to be so, while nothing is within
the jurisdiction of an inferior court unless it is
expressly shown on the face of the proceedings that
the particular matter is within the cognizance of
the particular court."
The observation of this Court in Raja Soap Factory and
Others v. S.P. Shantharaj and Others, [1965] 2 SCR 800, that
section 151 of the Code of Civil Procedure did not confer on
the High Court jurisdiction which was not specifically
vested was made in the context of section 105 of the Trade
and Merchandise Marks Act (43 of 1958) which conferred a
specific jurisdiction in respect of a passing off action.
That observation is not
1047
relevant to the question regarding the inherent and plenary
jurisdiction of the High Court as a superior court of
record. The Andhra Pradesh High Court, as a successor to the
Madras High Court, is vested with all the appellate and
original jurisdiction, including admiralty jurisdiction to
order the arrest and detention of a ship.
In decisions such as Jayaswal Shipping Company v. ‘S.S.
Leelavati’, AIR 1954 Calcutta 415; Kamalakar Mahadev Bhagat
v. Scindia Steam Navigation Co. Ltd., Bombay, AIR 1961
Bombay 186; Rungta Sons Private Ltd. & Anr. v. S.S. ‘Edison
Mariner’ & Anr., 1961-62 (66) Calcutta Weekly Notes 1083;
National Co. Ltd. v. Asia Mariner, 1967-68 (72) Calcutta
Weekly notes 635; Mrs. Sahida Ismail v.Petko R. Salvejkov &
Ors., AIR 1973 Bombay 18 and Smt. Reena Padhi v. ‘Jagdhir’,
AIR 1982 Orissa 57, the High Courts took an unduly
restrictive view of the courts’ admiralty jurisdiction by
limiting it to what was permitted by the Admiralty Court
Act, 1861 and the Colonial Courts of Admiralty Act, 1890.
This was, in our view, an unjustified abdication of
jurisdiction and a self-assumed fetter on competence to
render justice.
In equating the admiralty jurisdiction of the Indian
High Court to that of the English High Court, the Colonial
Court of Admiralty Act, 1890 significantly refers to the
admiralty jurisdiction of the High Court in England ‘whether
existing by virtue of any statute or otherwise’. This is an
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enabling statute, and not a statute of limitation of power.
It aids, and does not fetter, the growth of jurisdiction.
There is no reason why the words ‘statute or otherwise’
should be so construed as to exclude the various sources
from which the admiralty jurisdiction in England developed.
Apart from statutes, the powers of that Court, as seen
above, were derived from custom and practice and the
principles developed by common law and equity as well as by
the generally recognised principles of civil law developed
and practised in Europe. There is no reason, as rightly
stated by Westropp. C.J. of the Bombay High Court in Bardot
(supra), why the expression ‘statute or otherwise’ should be
so construed as to exclude all these vast areas of legal
principles which enriched and strengthened the maritime laws
of England. Likewise, there is no reason why those
principles should also not be drawn upon to enrich and
strengthen the jurisprudence of this country, even if the
jurisdiction of our courts were to be, by compulsions of
history, considered to be curtailed and dovetailed to the
colonial past - a proposition which is neither correct nor
consistent with our status as a sovereign republic. It is
1048
time to take a fresh look at the old precedents.
In this connection we would refer to the recent decision
of this Court in Delhi Judicial Service Association, Tis
Hazari Court, Delhi v. State of Gujarat & Ors., JT 1991 (3)
SC 617. This Court stated :
".....The constitution has assigned a new role to
the Constitutional Courts to ensure rule of law in
the country...... Time has come to have a fresh
look at the old precedents and to lay down law
with the changed perceptions keeping in view the
provisions of the Constitution......"
See also S.P. Gupta v. Union of India, [1982] 2 SCR, 365,
520-521, 597-598.
It is well recognised in international law that a
merchant ship, though generally governed by the laws of the
flag State, subjects itself to the jurisdiction of a foreign
State as it enters its waters. The Geneva Convention on the
Territorial Sea and Contiguous Zone, 1958 and the Law of the
Sea Convention, 1982 affirm that the sovereignty of a State
extends over its internal and territorial waters.*
"A foreign vessel, no matter what flag she flies, owes
temporary and local allegiance to the sovereign of any port
to which she comes. And the persons in such a vessel
likewise must obey the law and regulations of the port. Such
jurisdiction is discretionary. Once a foreign vessel passes
out of territorial waters, she owes no further duty to the
place which she has left, unless she is ‘hotly persued’. But
her conduct on the high seas or in foreign ports may subject
her to penalties on returning on a subsequent visit".
(Benedict, The Law of American Admiralty, Sixth Edition,
pages 121 & 122).
In the words of Chief Justice Marshal of the United
States Supreme Court "it would be obviously inconvenient and
dangerous to society and would subject the laws to continual
infraction, and the government to degradation, if such
(alien) individuals or merchants (trading in ships) did not
owe temporary and local allegiance, and were not amenable to
the jurisdiction of the country." (The Schooner Exchange v.
M’ Faddon & Ors.,
------------------------------
* See Nagendra Singh, International Maritime Law
Conventions, British Shipping Laws, Vols. I to IV.
1049
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[1812] 11 U.S. (7 Cranch) 114, 143.)
All foreign merchant ships and persons thereon fall
under the jurisdiction of a coastal State as they enter its
waters. Subject to the right of ‘innocent passage’, the
coastal State is free to exercise jurisdiction over such
ships in respect of matters the consequence of which extend
beyond the ships. Such ships are subject to the local
jurisdiction in criminal, civil and administrative matters.
This jurisdiction is, however, assumed only when, in the
opinion of the local authorities, the peace or tranquillity
of the port is disturbed, when strangers to the vessel are
involved or when the local authorities are appealed to.
Questions which affect only the internal order and economy
of the ship are generally left to the authorities of the
flag State. Coastal States are entitled to assume
jurisdiction in respect of maritime claims against foreign
merchant ships lying in their waters. These ships are liable
to be arrested and detained for the enforcement of maritime
claims. The courts of the country in which a foreign ship
has been arrested may determine the cases according to
merits, provided they are empowered to do so by the domestic
law of the country or in any of the cases recognised by the
International Convention relating to the Arrest of Seagoing
Ships, Brussels, 1952.* The maritime claims in respect of
which the power of arrest is recognised in law include
claims relating to damage caused by any ship either in
collision or otherwise; claims relating to carriage of goods
in any ship whether by charterparty or otherwise, loss of or
damage to goods etc. These principles of international law,
as generally recognised by nations, leave no doubt that,
subject to the local laws regulating the competence of
courts, all foreign ships lying within the waters of a
State, including waters in ports, harbours, roadsteads, and
the territorial waters, subject themselves to the
jurisdiction of the local authorities in respect of maritime
claims and they are liable to be arrested for the
enforcement of such claims.
In India, carriage of goods by sea is governed by the
Indian Bills of Lading Act, 1856, the Indian Carriage of
Goods by Sea Act, 1925, the Merchant Shipping Act, 1958, and
general statutes, such as the Marine Insurance Act, 1963,
the Contract Act, 1872, the Evidence Act, 1872, the Indian
Penal Code, 1860, the Transfer of Property Act, 1882, the
Civil
-----------------------------
* See also the International Conventions for the
Unification of Certain Rules relating to Maritime Liens and
Mortgages of 10th April, 1926 and May 27, 1967.
1050
Procedure Code, 1908, the Criminal Procedure Code, 1973, the
Companies Act, 1956, etc.etc. as well as the general
principles of law such as the law of tort, public and
private international law etc. In this connection, reference
may also be made to the Indian Ports Act, 1908 and the Major
Port Trusts Act, 1963 concerning the administration of the
port and the jurisdiction over ships in port, the Customs
Act, 1962 containing various regulatory measures affecting
ships, goods and persons in connection with importation or
exportation of goods, as well as the provisions governing
employment of labour. The Indian Bills of Lading Act, 1856
emphasises the negotiable and other characteristics of a
bill of lading. The Carriage of Goods by Sea Act, 1925,
contains the Hague Rules regulating the respective rights
and liabilities of the parties to a contract governed by
bills of lading or similar documents of title for carriage
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of goods by sea "from any port in India to any other port
whether in India or outside India". The Merchant Shipping
Act embodies rules regarding registration of Indian ships;
transfers or mortgages of ships or shares; national
character and flag; employment of seamen; safety, nuclear
ships; collisions, accidents at sea and liability;
limitation of liability; navigation; prevention of
pollution; investigation and enquiries; wreck and salvage;
coasting trade; sailing vessels; penalties and procedure,
etc. Many of these provisions have been adopted from rules
formulated by various international conventions.
It is true that Indian statutes lag behind the
development of international law in comparison to
contemporaneous statutes in England and other maritime
countries. Although the Hague Rules are embodied in the
Carriage of Goods by Sea Act, 1925, India never became a
party to the International Convention laying down those
rules (Internationl Convention for the Unification of
Certain Rules of Law relating to Bills of Lading, Brussels
1924). The Carriage of Goods by Sea Act, 1925 merely
followed the (United Kingdom) Carriage of Goods by Sea Act,
1924. The United Kingdom repealed the Carriage of Goods by
Sea Act, 1924 with a view to incorporating the Visby Rules
adopted by the Brussels Protocol of 1968. The Hague-Visby
Rules were accordingly adopted by the Carriage of Goods by
Sea Act, 1971 (United Kingdom). Indian legislation has not,
however, progressed, notwithstanding the Brussels Protocol
of 1968 adopting the Visby Rules or the United Nations
Convention on the Carriage of Goods by Sea, 1978 adopting
the Hamburg Rules. The Hamburg Rules prescribe the minimum
liabilities of the carrier far more justly and equitably
than the Hague Rules so as to correct the tilt in the latter
in favour
1051
of the carriers. The Hamburg Rules are acclaimed to be a
great improvement on the Hague Rules and far more beneficial
from the point of view of the cargo owners. India has also
not adopted the International Convention relating to the
Arrest of Sea-going Ships, Brussels, 1952. Nor has India
adopted the Brussels Conventions of 1952 on civil and penal
jurisdiction in matters of collision; nor the Brussels
Conventions of 1926 and 1967 relating to maritime liens and
mortgages.* India seems to be lagging behind many other
countries in ratifying and adopting the beneficial
provisions of various conventions intended to facilitate
international trade. Although these conventions have not
been adopted by legislation, the principles incorporated in
the conventions are themselves derived from the common law
of nations as embodying the felt necessities of
international trade and are as such part of the common law
of India and applicable for the enforcement of maritime
claims against foreign ships.
The Merchant Shipping Act, 1958 contains various
provisions to enforce territorial jurisdiction. The Act
being essentially regulatory in character, the various
authorities, tribunals and Courts entrusted with the
administration and enforcement of its provisions are
specifically stated. The High Court is defined under section
3(15) as follows :
"3(15). ‘High Court’, in relation to a vessel,
means the High Court within the limits of whose
appellate jurisdiction -
(a) the port of registry of the vessel is situate;
(b) the vessel is for the time being; or
(c) the cause of action wholly or in part arises;"
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----------------------------
(a) International Convention relating to the Arrest of
Seagoing Ships, Brussels, 10 May 1952 (IMC);
(b) International Convention on Certain Rules concerning
Civil Jurisdiction in Matters of Collision, Brussels, 10 May
1952 (IMC);
(c) International Convention for the Unification of
Certain Rules relating to Penal Jurisdiction in Matters of
Collision, Brussels, 10 May 1952 (IMC); and
(d) International Conventions for the Unification of Certain
Rules of Law relating to Maritime Liens and Mortgages
Brussels, 10 April 1926, and the Revised Convention on
Maritime Liens and Mortgages, Brussels, 29 May 1967 (IMC).
1052
Accordingly, a foreign ship falls within the jurisdiction
of the High Court where the vessel happens to be at the
relevant time - i.e., at the time when the jurisdiction of
the High Court is invoked, or, where the cause of action
wholly or in part arises.
The detention of a foreign ship is authorised in terms
of sections 443 and 444. In view of their vital significance
in the enforcement of maritime jurisdiction, we shall read
these two sections in full. Section 443 defines the
character and scope of the power of detention:
"S. 443. Power to detain foreign ship that has
occasioned damage. - (1) Whenever any damage has in
any part of the world been caused to property
belonging to the Government or to any citizen of
India or a company by a ship other than an Indian
ship and at any time thereafter that ship is found
within Indian jurisdiction, the High Court may,
upon the application of any person who alleges that
the damage was caused by the misconduct or want of
skill of the master or any member of the crew of
the ship, issue an order directed to any proper
officer or other officer named in the order
requiring him to detain the ship until such time as
the owner, master or consignee thereof has
satisfied any claim in respect of the damage or
has given security to the satisfaction of the High
Court to pay all costs and damages that may be
awarded in any legal proceedings that may be
instituted in respect of the damage, and any
officer to whom the order is directed shall detain
the ship accordingly.
(2) Whenever it appears that before an application
can be made under this section, the ship in respect
of which the application is to be made will have
departed from India or the territorial waters of
India, any proper officer may detain the ship for
such time as to allow the application to be made
and the result thereof to be communicated to the
officer detaining the ship, and that officer shall
not be liable for any costs or damages in respect
of the detention unless the same is proved to have
been made without reasonable grounds.
(3) In any legal proceedings in relation to any
such damage aforesaid, the person giving security
shall be made a defendant and shall for the purpose
of such proceeding be deemed to be
1053
the owner of the ship that has occasioned the
damage."
(emphasis supplied)
The power of enforcement of an order of detention of a
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foreign ship is dealt with by section 444.
"S. 444. Power to enforce detention of ship. - (1)
Where under this Act a ship is authorised or
ordered to be detained, any commissioned officer of
the Indian Navy or any port officer, pilot, harbour
master, conservator of port or customs collector
may detain the ship.
(2) If any ship after detention, or after service
on the master of any notice of, or order for, such
detention proceeds to sea before she is released by
competent authority, the master of the ship shall
be guilty of an offence under this sub-section.
(3) When a ship so proceeding to sea takes to sea,
when on board thereof in the execution of his duty
any person authorised under this Act to detain or
survey the ship, the owner, master or agent of such
ship shall each be liable to pay all expenses of,
and incidental to, such person being so taken to
sea and shall also be guilty of an offence under
this sub-section.
(4) When any owner, or master or agent is convicted
of an offence under sub-section (3), the convicting
magistrate may inquire into and determine the
amount payable on account of expenses by such
owner, master or agent under that sub-section and
may direct that the same shall be recovered from
him in the manner provided for the recovery of
fines."
These provisions relate to detention by reason of damage
caused in any part of the world by a foreign ship to
property belonging to the Government of India or to an
Indian citizen or company. The sections are wide in terms
and the expression ‘damage’ is not necessarily confined to
physical damage. Ordinarily damage is caused by physical
contact of the ship, such as in collision. But damage can
also be caused to property by breach of contract or acts of
commission or omission on the part of the carrier or his
agents or servants by reason of the negligent operation and
management of the vessel, as, for example, when cargo is
damaged by exposure to
1054
weather or by negligent stowage; or, by the misconduct of
those in charge of the ship, like when cargo is disposed of
contrary to the instructions of the owner or by reason of
theft and other misdeeds. In all these cases, damage arises
by reason of loss caused by what is done by the ship or by
the breach, negligence of misdeeds of those in charge of the
ship. It must however be noticed that the expression ‘damage
done by any ship’ has been construed by the English Courts
as not to apply to claims against the carrying ship for
damage done to cargo. In the Victoria 1887 12 PD 105, the
Court so construed section 7 of the Admiralty Court Act,
1861 (24 Victoriae c. 10)*. It has been held to apply only
to physical damage done by a ship by reason of its coming
into contact with something. See The Vera Cruz, [1884] 9 PD
96; Currie v. M.Knight, [1897] AC 97 and The Jade, [1976] 1
All. E.R. 920. In view of the specific provisions of the
English statutes of 1920, 1925, 1956 and 1981, it was
unnecessary for the English Courts to construe the
expression broadly so as to include cargo claims and the
like. The last two enactments contain an exhaustive list of
maritime claims and questions in regard to which the High
Court can exercise jurisdiction over any merchant ship by
arresting it as it enters the waters of Britain. This power,
as already noticed, is available, whatever be the
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nationality of the ship or its owner or the domicile or
place of residence or business of the owner, or wherever the
cause of action has arisen. About the words ‘damage done by
a ship’ in section 7 of the Admiralty Court Act, 1861 and
the decision in The Victoria [1887] 12 PD 105 to the effect
that the section had no application to claims against the
carrying ship for damage to cargo, the following observation
significantly appears in Halsbury’s Laws of England, 4th ed.
Vol. I (1), para 319 N. 12.
"...but this question is academic in the light of
the fact that jurisdiction in respect of claims for
damage to cargo carried in a ship is now expressly
given by the Supreme Court Act 1981 s. 20(2)(g)."
In the absence of any statute in India comparable to
the English statutes on admiralty jurisdiction, there is no
reason why the words ‘damage caused by a ship’ appearing in
section 443 of the Merchant Shipping Act, 1958 should be so
narrowly construed as to limit them to
------------------------------
* Section 7 reads :
"The High Court of Admiralty shall have jurisdiction
over any Claim for Damage done by any ship."
1055
physical damage and exclude any other damage arising by
reason of the operation of the vessel in connection with the
carriage of goods. The expression is wide enough to include
all maritime questions or claims. If goods or other property
are lost or damaged, whether by physical contact or
otherwise, by reason of unauthorised acts or negligent
conduct on the part of the shipowner or his agents or
servants, wherever the cause of action has arisen, or
wherever the ship is registered, or wherever the owner has
his residence or domicile or place of business, such a ship,
at the request of the person aggrieved, is liable to be
detained when found within Indian jurisdiction by recourse
to sections 443 and 444 of the Merchant Shipping Act, 1958
read with the appropriate rules of practice and procedure of
the High Court. These procedural provisions are but tools
for enforcement of substantive rights which are rooted in
general principles of law, apart from statutes, and for the
enforcement of which a party aggrieved has right to invoke
the inherent jurisdiction of a superior court.
The Indian Carriage of Goods by Sea Act, 1925 applies to
carriage of goods by sea under bills of lading or similar
documents of title from a port in India to any other port
whether in or outside India. (See section 2). The Act
imposes certain responsibilities and liabilities and confers
certain rights and immunities upon the carrier (see Articles
III & IV). In respect of a claim relating to an outward
cargo, the cargo owner has a right to bring a suit against a
shipowner subject to the period of limitation specified
under Act, namely, one year [Article III (6)]. The
substantive rights recognised by the statute are of equal
application to foreign merchant ships as they are to Indian
merchant ships. The Carriage of Goods by Sea Act does not,
however, contain any provision for the enforcement of the
right by arresting the foreign vessel found in Indian
waters. In the absence of arrest, no effective remedy
against a foreign owner may be available to the cargo owner.
The same is the position with regard to claims relating to
cargo carried under a charterparty. It is, therefore,
necessary that he should have recourse to the remedy
available to him under the Merchant Shipping Act. That Act,
as stated earlier, confers a right to arrest a vessel in
respect of any damage caused by a ship. If that expression,
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in the absence of any other more appropriate statute, is
understood sufficiently broadly as an enabling provision to
effectively assume jurisdiction over a foreign ship for the
enforcement of a substantive right recognised by law, there
would be no difficulty in finding a remedy for the right the
law has conferred on the cargo owner.
1056
The Merchant Shipping Act empowers the concerned High
Court to arrest a ship in respect of a substantive right. A
right conferred by the Indian Carriage of Goods by Sea Act,
1925 in respect of outward cargo is one of those rights
which can be enforced by arrest and detention of the foreign
ship in order to found jurisdiction over the vessel and its
owners, just as it can be done in respect of inward cargo by
reason of the substantive rights conferred by the Admiralty
Court Act, 1861 read with the Colonial Courts of Admiralty
Act, 1890, and other rules of law. The same principle must
hold good for carriage under a charterparty. These and other
laws, such as the law of contract, tort, crime, mortgage,
marine insurance, customs, port operations, etc., and the
Civil and Criminal Procedure Codes as well as the relevant
rules of court regulating procedure and practice together
constitute the body of substantive and procedural laws
governing claims relating to inward and outward cargo, and
such claims are enforceable against foreign ships by
recourse to arrest and detention when found within
jurisdiction. Viewed in this light, and by this reasoning,
the Andhra Pradesh High Court, as a successor to the Madras
High Court, does not lack admiralty jurisdiction in respect
of claims relating to outward cargo.
The admiralty jurisdiction of the High Court is
dependent on the presence of the foreign ship in Indian
waters and founded on the arrest of that ship. This
jurisdiction can be assumed by the concerned High Court,
whether or not the defendant resides or carries on business,
or the cause of action arose wholly or in part, within the
local limits of its jurisdiction. Once a foreign ship is
arrested within the local limits of the jurisdiction of the
High Court, and the owner of the ship has entered appearance
and furnished security to the satisfaction of the High Court
for the release of the ship, the proceedings continue as a
personal action.
The Merchant Shipping Act, 1958 provides a detailed code
of substantive and procedural rules regulating shipping as
an industry control exercised over it by the competent
authorities in confirmity with various international
conventions which have, under the auspices of International
Organisations such as the IMO or the ILO, unified and
developed various aspects of shipping laws. Conventions
regulating sea traffic, safety of life at sea, employment of
seamen, wages, hours of work, social security, etc. are
cases in point. Likewise, the substantive rules concerning
transport of goods are contained in the Indian Bills of
Lading Act, 1856 and the Indian Carriage of Goods by Sea
Act, 1925. But the jurisdictional questions concerning
arrest
1057
of foreign ships for enforcement of claims against the
shipowner as a transporter of goods, which in England are
regulated by the Supreme Court Act 1981, are in many
respects left unregulated by Indian legislation. While the
provisions of various international conventions concerning
arrest of ships, civil and penal jurisdiction in matters of
collision, maritime liens and mortgages etc. have been
incorporated into the municipal laws of many maritime
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States, India, as stated above, lags behind them in adopting
these unified rules.* By reason of this void, doubts about
jurisdiction often arise, as in the present case, when
substantive rights, such as those recognised by the Carriage
of Goods by Sea Act, are sought to be enforced. The remedy
lies, apart from enlightened judicial construction, in
prompt legislative action to codify and clarify the
admiralty laws of this country. This requires thorough
research and investigation by a team of experts in admiralty
law, comparative law, and public and private international
law. Any attempt to codify without such investigation is
bound to be futile.
No Indian statute defines a maritime claim. The Supreme
Court Act, 1981 of England has catalogued claims with
reference to the unified rules adopted by the Brussels
Convention of 1952 on the Arrest of Seagoing Ships.
--------------------------------
* See for example, the Brussels Conventions listed above.
See also the Administration of Justice Act, 1956 and the
Supreme Court Act, 1981 incorporating the international
rules into English law.
International Convention for the Unification of Certain
Rules relating to the Arrest of Seagoing Ships,
Brussels, May 10, 1952. Article 1 of this Convention
reads:
(1) "Maritime Claim" means a claim arising out of one or
more of the following:
(a) damage caused by any ship either in collision or
otherwise;(b) loss of life or personal injury
caused by any ship or occurring in connection with
the operation of any ship;(c) salvage;(d) agreement
relating to the use or hire of any ship whether by
charterparty or otherwise;(e) agreement relating to
the carriage of goods in any ship whether by
charterparty or otherwise; (f) loss of or damage to
goods including baggage carried in any ship; (g)
general average; (h) bottomry; (i) towage (j)
pilotage; (k) goods or materials wherever supplied
to a ship for her operation or maintenance; (l)
construction, repair or equipment of any ship or
dock charges and dues; (m) wages of Masters,
Officers, or crew; (n) Master’s disbursements,
including disbursements made by shippers,
charterers or agents on behalf of a ship or
her owner; (o) disputes as to the title to
or ownership of any ship;(p) disputes
between co-owners of any ship as to the
ownership, possession employment or earnings
of that ship; (q) the mortgage or hypothecation of
any ship.
footnote contd. on next page
1058
Although India has not adopted the various Brussels
Conventions*, the provisions of these Conventions are the
result of international unification and development of the
maritime laws of the world, and can, therefore, be regarded
as the international common law or transnational law rooted
in and evolved out of the general principles of national
laws, which, in the absence of specific statutory
provisions, can be adopted and adapted by courts to
supplement and complement national statutes on the subject.
In the absence of a general maritime code, these principles
aid the courts in filling up the lacunae in the Merchant
Shipping Act and other enactments concerning shipping.
"Procedure is but a handmaiden of justice and the cause of
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justice can never be allowed to be thwarted by any
procedural technicalities." S.P. Gupta v. Union of India,
[1982] 2 SCR, 365, 520, 521.
It is important to remember that the Brussels
Convention on Arrest of Ships merely restricts or regulates
the power of the coastal States and is not intended to
confer power which they did not otherwise have as sovereign
States. ‘Arrest’ to which the convention refers is detention
of a ship to secure a maritime claim, and not seizure of a
ship in execution or satisfaction of judgment.
The judicial power of this country, which is an aspect
of national sovereignty is vested in the people and is
articulated in the provisions of the Constitution and the
laws and is exercised by courts empowered to exercise. It is
absurd to confine that power to the provisions of imperial
statutes of a bygone age. Access to court which is an
important right vested in every citizen implies the
existence of the power of the Court to render justice
according to law. Where statute is silent and judicial
intervention is required, Courts strive to redress
grievances according to what is perceived to be principles
of justice, equity and good conscience.
In the words of Chief Justice Marshal :-
----------------------------------
(2)"Arrest" means the detention of a ship by judicial
process to secure a maritime claim, but does not include the
seizure of a ship in execution or satisfaction of a
judgment.
(3) "Person" includes individuals, partnerships and bodies
corporate, Governments, their Departments, and Public
Authorities.
(4) "Claimant" means a person who alleges that a maritime
claim exists in his favour.
See the Conventions listed above.
1059
"The jurisdiction of courts is a branch of that
which is possessed by the nation as an independent
sovereign power. The jurisdiction of the nation
within its own territory is necessarily exclusive
and absolute.
It is susceptible of no limitation not imposed by
itself....".
The Schooner Exchange v. M’Faddon & Ors. U.S.
Supreme Court Reports, Cranch 5-9, p. 114, 133 (3
L.ed. 287).
Admiralty jurisdiction is an essential aspect of
judicial sovereignty which under the Constitution and the
laws is exercised by the High Court as a superior court of
record administering justice in relation to persons and
things within its jurisdiction. Power to enforce claims
against foreign ships is an essential attribute of
admiralty jurisdiction and it is assumed over such ships
while they are within the jurisdiction of the High Court by
arresting and detaining them.
All persons and things within the waters of a State fall
within its jurisdiction unless specifically curtailed or
regulated by rules of international law. The power to arrest
a foreign vessel, while in the waters of a coastal State, in
respect of a respect of a maritime claim, wherever arising,
is a demonstrable manifestation and an essential attribute
of territorial sovereignty. This power is recognised by
several international conventions.* These conventions
contain the unified rules of law drawn from different legal
systems. Although many of these conventions have yet to be
ratified by India, they embody principles of law recognised
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by the generality of maritime States, and can therefore be
regarded as part of our common law. The want of ratification
of these conventions is apparently not because of any policy
disagreement, as is clear from active and fruitful Indian
participation in the formulation of rules adopted by the
conventions, but perhaps because of other circumstances,
such as lack of an adequate and specialised machinery for
implementation of the various international conventions by
coordinating for the purpose the concerned Departments of
the Government. Such a specialised body of legal and
technical experts can facilitate adoption of internationally
unified rules by national legislation. It is appropriate
that sufficient attention is paid to this aspect of the
----------------------------
* See the Conventions referred to above. See also Nagendra
Singh, International Maritime Conventions, British Shipping
Laws, Vol.4
1060
matter by the concerned authorities. Perhaps the Law
Commission of India, endowed as it ought to be with
sufficient authority, status and independence, as is the
position in England, can render valuable help in this
regard. Delay in the adoption of international conventions
which are intended to facilitate trade hinders the economic
growth of the nation.
The British statute assimilating Indian High Courts to
the position of the English High Court in respect of
admiralty jurisdiction is an enabling legislation and it is
but one of the strands of jurisdiction vested in the High
Court by virtue of the constitutional provisions. The
jurisdiction of the High court is governed by the
Constitution and the laws, and the continuance in force of
the existing laws in not a fetter but an additional source
of power. Access to court for redressal of grievance being
an important right of every person, it is essential that the
jurisdiction of the courts is construed harmoniously and
consistently with its vital function in that respect, so
that absence of legislation will not jeopardise that right.
Admiralty jurisdiction, despite the peculiarities of
its origin and growth-rooted as it is in history and
nurtured by the growing demands of international trade is
nevertheless a part of the totality of jurisdiction vested
in the High Court as a superior court of record, and it is
not a distinct and separate jurisdiction as was once the
position in England before the unification of courts. The
1890 and 1891 Acts specifically conferred admiralty
jurisdiction on the Indian High Courts by reason of their
being courts of unlimited jurisdiction. These Acts did not
create any separate or distinct jurisdiction, but merely
equated the Indian High Courts to the position of the
England High Court (united and consolidated as that Court
has been since 1875) for the exercise of admiralty powers
within the jurisdiction of the former. The contrary view
expressed in some of the decisions of the High Courts
referred to earlier is clearly wrong.
Once a foreign ship is arrested in Indian waters by an
order of the High Court, in exercise of the admiralty
jurisdiction vested in it by statute, or inherent in it as a
court of record, in respect of any maritime claim against
its owner, wherever the cause of action may have arisen, and
whether or not the ship is subsequently released by the
owner furnishing security, proceeding must continue against
the owner as in any other suit. The arrest of the vessel
while in Indian waters by an order of the concerned High
Court, as defined under the Merchant Shipping Act, 1958
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[section
1061
3(15)] attracts the jurisdiction of the competent court to
proceed with the trial, as in the case of any other suit, as
an action against the owner, and any decree obtained by the
plaintiff is executable against any property of the owner
available within jurisdiction, including the security
furnished by him for release of the vessel.
All foreign ships entering Indian waters are presumed
to know that they fall within the jurisdiction of this
country during their stay here. The vessel in question was
lying in the Port of Vishakhapatnam when she was arrested in
respect of a cause of action relating to cargo. The sole
contention of the defendants as regards jurisdiction was
that no High Court in India was invested with admiralty
jurisdiction to order the arrest of the vessel in respect of
a cause of action relating to outward cargo because section
6 of the Admiralty Court Act, 1861 (read with the Colonial
Courts of Admiralty Act, 1890) conferring admiralty
jurisdiction on Indian High Courts confined it to ‘claims
for damage to cargo imported’. This contention for the
reasons we have stated, has no merits. The High Court, in
our view, rightly assumed jurisdiction by the arrest of the
vessel while it was lying in the port of Vishakhapatanam.
The High Court of Andhra Pradesh undoubtedly possesses
jurisdiction over claims relating to inward and outward
cargo. In the circumstances, the preliminary objection to
the jurisdiction of the Andhra Pradesh High Court was
totally devoid of merits.
Accordingly, the appeal arising from SLP(C) No. 10542
of 1985 has to be dismissed. In the light of our order
dated 28th August, 1991 allowing the Civil Appeal No. 3392
of 1991 filed by the 3rd defendant against the order of the
High Court dismissing the petition for condonation of delay
in presenting O.S.A.S.R. No. 39789 of 1988, the Transferred
Case No. 27 of 1987 arising from the judgment of the learned
Single judge decreeing the plaintiff’s suit and the 3rd
defendant’s appeal have to be heard and disposed of together
on the merits, and the right forum for the purpose will be
the High Court itself. In the circumstances, the
Transferred Case No. 27 of 1987 has to be returned to the
High Court.
R.M. SAHAI, J. Admirality jurisdiction, an unfamiliar
branch of jurisprudence, was the object matter of
illuminating debate in this appeal directed against judgment
of the Andhra Pradesh High Court. But what was surprising
to hear, even, in 1991 was that the admirality jurisdiction
exercised
1062
by the High Courts in Indian Republic is still governed by
the obsolete English Admiralty Courts Act, 1861 (referred
hereinafter as ‘the Act’) applied by (English) Colonial
Courts of Admiralty Act, 1890 (in brief ‘1890 Act’) and
adopted by Colonial Courts of Admirality (India) Act, 1891
(Act XVI of 1891). Yet there appeared no escape from it,
notwithstanding its unpleasant echo in ears. The shock was
still greater when it transpired that this state of affairs
is due to lack of legislative exercise, even, when in wake
of decision of this Court in State of Madras v. C.G.Menon &
Ors., [1955] 1 S.C.R. 280, that ‘Article 372 of the
Constitution cannot save this law (Fugitive Offenders Act
1881*) because the grouping is repugnant, to the concept of
a sovereign democratic republic.’, the Law Commission in its
Fifth Report on British Statutes applicable to India went
into detail on scope of Article 372 of the Constitution and
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observed that the British statutes which were expressly
applicable to India because India was a, ‘British
possession’ are still supposed to be applicable to India
without any change in the context, therefore, it impressed
upon the urgency as far back as 1957 to enact, ’own laws on
the subject matter of those statutes where it is necessary
to do so and take legislative action making it clear that
these statutes are no longer applicable to India.’ In
pursuance of this recommendation exercise was undertaken and
(The) British Statutes (Applicable to India) Repeal Act 1960
(Act 57 of 1960) was enacted on 26th December 1960 repealing
as many as 259 statutes mentioned in the Schedule. But the
Admirality jurisdiction remained untouched. In respect of
Colonial Courts of Admiralty Act the recommendation of the
Commission was that, ‘ The necessary substantive provisions
of the English Statute may be incorporated into our Act XVI
of 1891 so as to make it the comprehensive Indian law
relating to courts of admirality.’ Unfortunately nothing
was done. Neither the law was made up-to-date and brought
in line with international conventions on maritime law
passed in 1952 etc. nor even the salient features of English
law as amended by Administration of Justice Act, 1920, and
1956 were adopted. And rights and interests of citizen of
the independent sovereign state continued to be governed by
legislations enacted for colonies by the British Parliament.
Various provisions in 1890 Act have been rendered not only
anomalous but even derogatory to the sovereignty of the
State. No further need be said except to express the hope
that the unfortunate state of affairs shall be brought to
end at the earliest.
Be that as it may the intricate issue of Admiralty
jurisdiction of the
--------------------
Bracket supplied.
1063
Andhra Pradesh High Court a successor of High Court of
Madras, to entertain a suit for arrest of a foreign ship for
tort committed by the owner or master of ship while carrying
cargo outside India has to be decided on the law as it
stands. Entire thrust of attack, against direction by the
High Court for arrest of the foreign ship, was found on
absence of any provision in 1861 Act empowering the High
Court to exercise jurisdiction over any claim by the owner
or consignee of India in respect of bill of lading of any
goods carried out of any Indian port in any foreign ship.
True Sections 5 to 8 and 10 to 11 conferring jurisdiction on
High Court of Admiralty do not provide for it. Section 6 is
confined to, ‘any claim by the owner or consignee or
assignee of any Bill of Lading of any goods carried into any
port in England or Wales in any ship (to be read as India by
virtue of proviso to sub-section 3 of Section 2 of Colonial
Courts of Admiralty Act 1890*) for damage done to the goods
or any part thereof by the Negligence or misconduct of or
any breach of duty’. But this Act had on application till
1890. Before it the High Court of Madras enjoyed Admiralty
jurisdiction under the Madras Supreme Court Act, then
Letters Patent of 1862 and 1865. Finally it came to be
governed by 1890 Act, enacted, to amend the law respecting
to exercise of Admiralty jurisdiction in British
possession.’ It was under sub-section (1) of Section 2 of
this Act read with Section 2 of 1891 act that the then
Presidency High Courts, being courts of unlimited civil
jurisdiction, were declared court of Admiralty. Sub-section
(2) of Section 2 of 1890 Act spelt out the jurisdiction of
Admiralty courts. It reads as under:-
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"(2) The jurisdiction of a Colonial Court of
Admiralty shall, subject to the provisions of this
Act, be over the like places, persons, matters, and
things, as the Admiralty jurisdiction of the High
Court in England, whether existing by virtue of any
statute or otherwise, and the Colonial Court of
Admiralty may exercise such jurisdiction in like
manner and to as full an extent as the High Court
in England, and shall have the same regard as that
Court to international law and the comity of
nations."
Each part of the sub-section is inclined towards expanding
jurisdiction. It not only declared those over which the
court could exercise jurisdiction but it also amplified the
manner and extent of exercise of jurisdiction. It was made
co-extensive with the jurisdiction exercised by the High
Court in England. Use of the expression, ‘existing by
virtue of any Statute or
----------------------------------------------
* Bracket supplied.
1064
otherwise’, widened the operative field extending the limit
and authority to exercise jurisdiction beyond any existing
statute, to custom practice or in any other manner in which
it could be exercised. It was recognition of wide
jurisdiction exercised by the High Court of England.
What then was the jurisdiction that the Court of
England exercised in 1890 ? The law of Admiralty was
developed by English courts both as a matter of commercial
expediency and due to equity and justice. Originally it was
a part of common law jurisdiction, but the difficulty of
territorial limitations, constraints of common law and the
necessity to protect the rights and interests of its own
citizens resulted in growth of maritime lien a concept
distinct from common law of equitable lien as it represents
a charge on maritime property of a nature unknown alike to
the common law or equity. The Privy Council explained it as
‘a claim or privilege upon a thing to be carried into effect
by legal process. * Law was shaped by exercise of
discretion to what appeared just and proper in the
circumstances of the case. Jurisdiction was assumed for
injurious act done on high seas and the scope was extended,
‘not only to British subjects but even to aliens.
Maritime law has been exercised all over the world by
Maritime powers. In England it was part of Municipal law but
with rise of Britain as empire the law grew and it is this
law, that is, ‘Maritime Law that is administered by the
Admiralty Court’*. From the Maritime law sprang the right
known as Maritime lien ascribing personality to a ship for
purposes of making good loss or damage done by it or its
master or owner in tort or contract. In England it grew and
developed in course of which its scope was widened from
damage done by a ship to claims of salver, wages, Bottomrey,
supply of necessaries and even to bills of lading. Its
effect was to give the claimant a charge on res from the
moment the lien arose which follows the res even if it
changed hands. In other words a maritime lien represented a
charge on the maritime property. The advantage which
accured to the maritime lienee was that he was provided with
a security for his claim up to the value of the res. The
essence of right was to identify the ship as wrongdoer and
compel it by the arrest to make good the loss. Although the
historical review in England dates back to the 14th Century
but its statutory recognition was much later and ‘maritime
law came to jurisprudential maturity in the first half of
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the 19th Century’.
-----------------------------------------
* The Bold Buccleugh, (1851) 7 Moo.P.C.267.
The hailey, L.R.2 PC 193.
* Halsbury’s Laws of England, IVth Edn., Vol. 1.
Maritime Liens by D.R. Thomas.
1065
And the first statutory recognition of such right came in
1840 when the Admiralty Court Act of 1840 was enacted
empowering the admiralty court to decide all questions as to
the title or ownership of any ship or vessel or the
procedure thereof remaining in the territory arising in any
cause of possession, salvage, damage, wages or bottomrey.
By clause (6) of the Act jurisdiction was extended to decide
all claims and demands whatsoever in the nature of salvage
for services rendered to or damage received by any ship or
sea going vessel or in the nature of towage or for
necessaries supplied to any foreign ship or sea-going vessel
and the payment thereof whether such ship or vessel may have
been within the body of a country or upon the high seas at
the time when the services were rendered or damage received
or necessary furnished in respect of such claims. But the
most important Act was passed in 1861 which expanded power
and jurisdiction of courts and held the field till it was
replaced by Administration of Justice Act, 1920. The
importance of the Act lay in introducing the statutory right
to arrest the res on an action in rem. Section 35 of the
1861 Act provided that the jurisdiction by the High Court of
Admiralty could be exercised either by proceedings in rem or
proceedings in personam. ‘The essence of the rem in
procedure is that ‘res’ itself becomes, as one might say,
the defendant, and ultimately the ‘res’ the ship may be
arrested by legal process and sold by the Court to meet the
plaintiff’s claim. The primary object, therefore, of the
action in rem is to satisfy the claimant out of the ‘res’*.
If the 1840 Act was important for providing statutory basis
for various types of claims then 1861 Act was a step forward
in expanding the jurisdiction to claims of bill of lading.
Section 6 of the Act was construed liberally so as to confer
jurisdiction and the expression ‘carried into any port was’
was expanded to mean not only when the goods were actually
carried but even if they were to be carried. Further the
section was interpreted as providing additional remedy for
breach of contract.* By the jurisdiction Act of 1873 the
court of Admiralty was merged in High Court of justice.
Result was that it obtained jurisdiction over all maritime
cases. Therefore, what was covered by enactments could be
taken cognisance of in the manner provided in the Act but
there was no bar in respect of any cause of action which was
otherwise cognizable and arose in Admirality. Section 6 of
1861 Act was confined to claim by the owner or consignee or
assignee of any bill of lading of any goods carried into any
port
------------------------------------------
* Maritime Law by Christopher Hill.
The Ironsides, 167 English Reports 205, The St. Cloud,
167 English Report 269, The Norway, 167 English Report 347.
* The Ironsides, 167 English Reports 205.
1066
in England or Wales (to be read as India). But it did not
debar any action or any claim by the owner or consignee or
assignee of any bill of lading in respect of cargo carried
out of the port. Even if there was no provision in 1861
Act, as such, the colonies could not be deprived under 1890
Act from exercising jurisdiction on those matters which were
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not provided by 1861 Act but could be exercised or were
otherwise capable of being exercised by the High Court of
England. ‘The theory was that all matters arising outside
the jurisdiction of common law i.e. outside the body of a
country were inside the jurisdiction of Admiralty’*. ‘That
this court had originally cognisance of all transaction
civil and criminal, upon the high seas, in which its own
subjects were concerned, is no subject of controversy’.
To urge, therefore, that the Admirality court exercising
jurisdiction under 1890 Act could not travel beyond 1861 Act
would be going against explicit language of the Statute.
Even now, the Admiralty jurisdiction of the High Court of
Justice in England derived ‘partly from statute and partly
from the inherent jurisdiction of Admiralty’*.
Observations of Lord Diplock in the Jade that Admiralty
jurisdiction was statutory only have to be understood in the
context they were made. By 1976 the statutory law on
Admiralty had become quite comprehensive. Brother Thommen,
J., had dealt with it in detail. Therefore those
observations are not helpful in deciding the jurisdiction
that was exercised by the High Court in England in 1890.
From what has been narrated above it is apparent that
law of Admiralty progressed gradually from ordinary courts,
to courts of Admiralty and ultimately to High Court
commencing in commercial expediency, equity and justice and
ending with statutory enactments covering entire field from
collision on ships to cargo even. All this was existing
when 1890 Act was enacted. But the statutes of 1840 and
1861 were not exhaustive and English courts could take
cognizance for various wrongs either in tort or contract.
Therefore, when colonial courts were conferred jurisdiction
it was not restricted or confined to statutes, as the power
was being conferred on High Courts which were, then and even
now, not only courts of unlimited civil jurisdiction but
higher courts possessed of every jurisdiction which was not
expressly or impliedly conferred on other courts. The
---------------------------------------
* Carter History of English Courts.
Lord Stowell in ‘The Hercules’ 2 Dod. 371.
* Halsbury’s Laws of England, IVth Edn. Vol. 1.
The Jade 1976 (1) All Eng. Reports 921.
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word ‘otherwise’ literally means in a different way. Effect
of its use in 1890 Act in law, was to confer not only
statutory jurisdiction possessed of by English courts but
all that which was being exercised or was capable of being
exercised either under custom and practice or for sake of
equity and justice. In the Iron Sides (supra) it was
observed that Act of 1861 was passed not because the power
or jurisdiction prior to it did not exist but no one
ventured to exercise it. No such restriction was placed on
exercise of power under 1890 Act. Rather the Act permitted
exercise of it and that too to its fullest extent. This
deliberate expansion of power and jurisdiction after
existence of two statutes for nearly thirty years was
founded on experience and necessity or arming the courts for
every dispute that could arise relating to Admiralty
jurisdiction, as the law on Admiralty was a growing law.
Its development could not be stiffled by its very nature. It
was with this intention that the Parliament used the word,
‘otherwise’ in 1890 Act. No word in a statute has to be
construed as surplus-age. Nor it can be rendered
ineffective or purposeless. Courts are required to carry
out the legislative intent fully and completely. The two
legislations of 1840 and 1861 took care of those actions
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which appeared to be settled till then. But they did not
close the door for the growth of law. They were enacted to
‘improve the Admiralty practice’ as the jurisdiction which
were conferred by the statutes were already being exercised.
Action in personam or rem were not unknown. It was provided
statutory base only. Statutes till 1920 in England were not
creation of new rights but recognition of what was existing
by practice or custom. It can thus be safely inferred that
the jurisdiction to entertain a claim for tort or breach of
contract by owner or master of ship while carrying cargo
outside the port could be exercised or was capable of being
exercised in 1890 by the High Court of England if occasion
arose. The rationale of extending jurisdiction in
Admirality over cargo carried into the port has been
existence of a right in owner or consignee arising out of
contract or agreement entered between him and the master or
owner of the ship. It was the enforcement of the right
which was safeguarded by providing a remedy to arrest a ship
if the goods were carried into any port. Same rationale
applies to redress the owner of bill of lading if the master
of the ship in breach of agreement entered into any port
committed tort by acting against it in course of outward
journey. Such breach would have been actionable and a suit
could be filed in the court where agreement was entered.
Basis of Maritime Law has been necessity to provide remedy
for wrong done on high seas. Inclusion or expansion of
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jurisdiction was in relation to any cause which could have
been cognisable under ordinary law. Bottomrey, salvage,
seaman wages or towage are all causes for which action could
be brought in court of law but their enforcement was
rendered illusory with disappearance of the person beyond
territorial waters. To overcome this difficulty this
jurisdiction was created making it actionable against person
and finally the res itself. What was basic was the
existence of cause of action, arising out of tort or
contract in relation to the master or owner of the ship.
Applying this test the cause of action arose in Indian
territory and if the owner of the ship would have remained
in this country a suit for breach of contract could have
been filed. Therefore the owner of bill of lading was not
precluded from approaching the Admiralty court for redress
when the foreign ship which was guilty of violations
appeared in Indian waters. On this construction the
colonial courts could exercise the jurisdiction in respect
of cargo going outside the port in exercise of jurisdiction
under Act of 1890 not on statutes but as the High Court of
England could exercise such power. Emphasis on absence of
any instance in which English courts assumed jurisdiction in
respect of goods carried out of English port was searching
for existence of jurisdiction not in law but on precedent.
Test is not whether the jurisdiction was ever exercised by
English courts but whether it was capable of being
exercised. If it could, then colonial courts were empowered
to exercise it. Reliance was placed on Yuri Maru*, a
decision because of which the courts in Bombay and Calcutta
got stuck, and could not see beyond 1861 Act. Distinction
on facts, apart, the court was primarily concerned if the
jurisdiction of colonial court expanded or dimunited by
change of jurisdiction of High Court of England by different
enactments passed from time to time. Incidentally it was
also observed that there was conflict for long even in
England on advantage of extending the process in rem and if
a port of call could be benefited by existence of a power in
all and sundry to arrest vessels found within its limits.
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This observation cannot be construed as determinative of
limited jurisdiction possessed by the courts. No effort was
made in the decision to adjudicate upon the impact of the
expression or ‘even otherwise’. Rather it turned on
impossibility of automatic extension of jurisdiction of
colonial court to exercise power under the English law
enacted subsequently because of the use of word ‘existing’
in 1890 Act. Without entering into the controversy if 1890
Act was a legislation by
--------------------------------------------------
* 1927 Appeal Cases 906.
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reference or by incorporation and their consequences, on
which arguments were addressed in extenso, suffice it to say
that in absence of any consideration of the expression
‘otherwise’ this Court does not find any difficulty in
construing the expression as permissive of jurisdiction.
Legislations may create a right or it may recognise one
founded on custom or practice. Admiralty statutes in
England fell in latter category. In such legislations the
background of enactment, the necessity to codify it, the
propose sought to be achieved by it all become relevant.
Admiralty jurisdiction in England was rooted in remote past.
It developed and expanded with rise and growth of Britain
and its recognition as a superior maritime power. Law and
practice revolved round it. Right to proceed against owner
of ship for wrongs done on high seas was accepted and
followed. Statutes of 1840 and 1861 provided legislative
base only. Viewed in the background of enactment of 1890 it
would be too artificial to confine the exercise of power by
the High Courts in Admiralty to what was contained in 1861
Act. Even otherwise for deciding the jurisdiction exercised
by the High Court in India founded on jurisdiction exercised
by the High Court of England it is not necessary to be
governed by the decision given by English courts. Law
develops by pragmatic approach to problems arising under an
Act and not by abdication or surrender, 1890 Act is an
unusual piece of legislation expansive in scope, wider in
outlook, opening out the wings of jurisdiction rather than
closing in. It’s authority and power to exercise
jurisdiction was linked with power exercised by the High
Court in England, the width of which was not confined to
statute but went deep into custom, practice, necessity, and
even exigency.
Law of 1890 apart, can the Indian High Courts after
1950 be denied jurisdiction to arrest a foreign ship to
satisfy the claim of owner of a bill of lading for cargo
taken outside the county? Without entering into any
comparative study of jurisdiction of High Court of England
and the High Courts in our country the one basic difference
that exists today is that the English courts derive their
creation, constitution and jurisdiction from Administration
of Justice Act or Supreme Court Act but the High Courts in
our country are established under the Constitution. Under
it Article 225 preserved the jurisdiction, including
inherent jurisdiction, which existed on the date the
Constitution came into force and Article 226 enlarged it by
making it not only a custodian of fundamental rights of a
citizen but as
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repository of power to reach its arms to do justice. A
citizen carrying on business which is a fundamental right
cannot be rendered helpless on premise that the jurisdiction
of High Courts stood frozen either under statute of England
or any custom or practice prevailing there or the High Court
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of England cannot exercise the jurisdiction. Brother T.K.
Thommen, J., while dealing with right of rem and in personam
has considered the justification for conferment of such
right to a claimant in respect of a merchant ship traveling
from port to port. Can it be successfully urged today that
such a ship or its master and owner is immune from tort or
breach of contract committed by him in respect of cargo
taken out of port. A citizen of a colonial state may or may
not but a citizen of an independent republic cannot be left
high and dry. The construction of law has to be in
consonance with sovereignty of a state. The apprehension
that assumption of such jurisdiction would be on general
attributes of sovereignty is not well founded. This coupled
with expansive jurisdiction that the High Courts enjoyed in
relation to Admiralty under 1890 Act preserved under Article
225 provided justification for direction to arrest the ship,
for the tortious act done by master or owner of the ship in
respect of goods carried outside the port even if there was
no specific provision like Section 6 of the 1861 Act.
Entertaining a claim arising out of breach of contract in
relation to cargo taken out of any Indian port pertains to
jurisdiction. It must arise out of Statute. But the power
to direct arrest of a ship in exercise of the jurisdiction
is one relating to competency. The High Court in India
being courts of unlimited jurisdiction, repository of all
judicial power under the Constitution except what is
excluded are competent to issue directions for arrest of
foreign ship in exercise of statutory jurisdiction or even
otherwise to effectuate the exercise of jurisdiction. Since
the jurisdiction to entertain a suit on tort or contract in
relation to cargo going out of the country in a ship is
found to exist under 1890 Act the High Court of Andhra
Pradesh was competent to direct arrest of the foreign ship
when it appeared in India waters. The High Court,
therefore, rightly negatived the objection to issue
direction to arrest the ship.
Necessity to add few words to the opinion of brother
Thommen, J., arose without narrating facts or extracting
sections as they have been dealt in detail by him, both to
impress upon the urgency of enacting up-to-date law on
Admiralty and to express agreement only on scope of 1890 Act
as well as the extensive jurisdiction enjoyed by High Courts
after 1950.
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ORDER
For the reasons stated by us in our separate but
concurring judgments dated 26.2.1992, we dismiss the appeal
arising from SLP(C) No. 10542 of 1985. The Transferred Case
No. 27 of 1987 is returned to the Andhra Pradesh High Court
to be heard and disposed of on the merits together with the
3rd defendant’s appeal O.S.A.S.R. No. 39789 of 1988.
We make no order as to costs.
G.N. Appeal dismissed.
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