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Maritime Law
Over the centuries, the maritime law has developed since the colonial times which are considered as
a wide ranging branch of law. The inception of the maritime law can be traced down to British
legislations on the various aspects such as marine insurance, carriage of goods by sea, ship sale
and building contract, ship financing and ship mortgage etc. Therefore, the admiralty law is a distinct
body which governs the maritime questions and the offenses. It comprises of both the domestic as
well as private international law governing the relationship between the private entities operating the
vessels on the oceans and all the other matters dealing with marine commerce, shipping, sailors,
marine navigation and the transportation of passengers and goods by sea. It also covers the
commercial activities occurring on land which are maritime in character.
With respect to the ship arrests in India, the Admiralty Court Act 1861, the Admiralty Court Act, 1890
and Admiralty Court Act 1891 would be applicable.
CONCEPT OF SHIP ARREST IN INDIA; SHIP AND SISTERSHIP
SHIP AND SISTERSHIP
The word vessel has been substituted by the word ship and is defined and includes any ship or boat
or any other description of vessel used in navigation but not propelled by oars. As per Section 2 of
the Admiralty Court Act, 1861 ship shall include any description of vessel used in navigation not
propelled by Oars. With respect to the Dead Vessel Doctrine, a vessel which is permanently
withdrawn from use for navigational purpose, it shall not be termed as ship because such vessel
cannot be engaged for the trade or commerce activities. Therefore, a ship can be a live ship not a
dead vessel which is kept in the dry dock.
The term sistership can be referred as a ship has the same beneficial owners as the ship in regard
to which the claim arose. The High Court has the jurisdiction to arrest the sistership for securing the
maritime claim. Such admiralty jurisdiction is not only against the offending ship but also against the
sister ship to which the claim arose.
ARREST OF SHIP
The main purpose for the arrest of the ship is to obtain the security for satisfaction of judgment in the
action in rem therefore it is necessary to arrest the ship so as to establish the jurisdiction.
The merchant ship travels from port to port among the different parts of the world carrying goods or
the passengers. The liabilities are occurred in the course of their voyage and are subjected to the
jurisdiction of the foreign states when they enter into the foreign states. Also, they are liable to be
arrested for the enforcement of the maritime claims, or are seized in execution or to the satisfaction
of judgments in the legal actions arising out of collisions, salvage, and loss of life or damage to the
goods. In case if they violate any regulations, safety measures or any other cause, then such ships
are liable to be detained or confiscated by the authorities of the foreign state.
If the plaintiff seeking the claims against the foreign ship has no effective remedy in the cases where
it has sailed away or the owner has neither the property nor any residence within the jurisdiction. In
such circumstances, the plaintiff has the option to detain the ship by obtaining the order of
attachment when there is a fear that the ship is likely to slip out of the jurisdiction without any
security to the plaintiff.
The following are the purposes, when the ship can be arrested:
court of Calcutta, Bombay, madras, Gujarat, Andhra Pradesh and Orissa have the jurisdiction to
entertain the admiralty matters.
Earlier, the Gujarat High Court did not have the power to exercise the Admiralty jurisdiction but with
the passage of time the cases for admiralty actions are filed before the court and for invoking the
jurisdiction, not just vessel should be there but the cause of action (wholly or partly) should also take
place in Gujarat. As decided in the case of Fuji Trading (Singapore) Pte Ltd and in Quantum
Marineworks Singapore Pte Ltd.
An order of the arrest of a ship passed from High Court of Bombay can be executed in any Indian
territorial water. In the appeal filed before the High Court of Bombay, Appeal No. 59 of 2000, the
court held that the admiralty jurisdiction extends throughout the territorial water of India. However the
appeal was filed before the Supreme Court of India regarding the jurisdiction but the Honorable
Court held that such question of territorial jurisdiction did not require any consideration and was left
open.
Whenever the question relating to the obtaining of order or arrest of ship comes, then the Bombay
High Court is preferred because the order passed from the court shall be applicable to the Indian
Territorial Water wherever the ship is found. Such pan India Admiralty Jurisdiction in relation to the
arrest is vest with the Bombay High Court only but the other above mentioned High Court has the
Admiralty Jurisdiction.
When time comes for decision as to which court of India one should approach for obtaining an order
of arrest, Bombay High Court is preferred as order for arrest of a vessel obtained from the Bombay
High Court can be executed anywhere in Indian territorial waters, wherever the vessel is found.
CLAIMS FOR WHICH THE ARREST IS PERMISSIBLE
The Indian courts having the Admiralty Jurisdiction also have the jurisdiction to over the claims and
hear and determine with respect to the claims as mentioned under Article 1 of the International
Convention for the Unification of Certain or under Article 1 of the International Convention on the
Arrests of Ships, Geneva.
As per Brussels Arrest Convention and the Geneva Arrest Convention, the claims for arresting the
ship are as follows:
Any damage caused by the ship in case of collision or by any other activity;
Loss to the life and any personal injury caused with the operation of any ship;
Loss or damage caused to the goods which are carried by the ships;
Compensation with respect to the salvage operations or where the ship carrying the cargo is
threatened to the environment;
Any threat of damage or other damage caused to the environment, coastline or the other
related to the interest;
Loss incurred or likely to be incurred by the third party in relation to the damage or cost or
any other loss;
Any loss Goods or any other equipment or any other services provided to the ship for the
operation, management or any other maintenance;
Dues and charges occurred on the port, canal, dock , harbor or other waterways;
Wages and the other amount and charges due to the master, officers and the other member
in respect to the employment on the ship which includes the cost of other social insurances which is
payable;
Commissions or any other agency fees which are payable in respect of the ship or on the
behalf of the owner or the demise charter;
Dispute arising out of the contract with respect to the sale of the ship.
PROCEDURAL REQUIREMENT FOR THE ARREST OF THE SHIP
A claimant executes the power of Attorney to the person who can act on behalf of the
claimant. Such Power of Attorney should be properly executed, notarized and legalized which is
required to be stamped under the laws of India and has to be shown before the court for the filing of
the plaint.
Notice is required to be given to the Consul General as per the Rules of the High Court
Claimant shall file the plaint along with the undertaking, draft the warrant of the arrest and
the affidavit before the court having the admiralty jurisdiction. All the other attachments and the
documents shall be filed at the time making the application for the arrest.
Such application shall be moved before the Admiralty judge and the order is passed or he
can dictate the separate order for the arrest of a vessel.
AFTER
THE
ARREST
Once the warrant of arrest is issued from the registry and the fee and the other expenses are
deposited, the intimation shall be given to the Marshall or the authorized officer. The officer has the
authority to arrange the substitute in place of the arrested ship and the plaintiff or his advocate shall
provide a conveyance to the ship for the service.The Marshall and the other officers are required to
have the undertaking from the plaintiff to make further deposits towards the expenses as incurred by
him in connection with the custody of the ship under the arrest. They are required to intimate the
custom and harbor authorities of the arrest.
In case the ship is released upon the security being furnished, unless compromised, the suit will
proceed for the trial. There are certain cases, where the ship is not released because of the owners
bankruptcy or the master or the crew may abandon the ship therefore the marshal or the authorized
officers shall protect the ship and the equipments in accordance with the regulations.
CONCLUSION
The ship arrest is generally the quickest way of obtaining the security against the claims or for
recovering the unpaid dues. Such matter is considered to be straightforward and can be arranged at
a reasonable cost but in case of the wrongful arrest the plaintiff has to incur such cost. This is the
most suitable remedy for creditors, like owners who need to repossess the vessel, the suppliers who
have not been paid or the outstanding wages of the crew members. Therefore, such arrests are
relatively inexpensive and easy solution for obtaining the relief globally.