2. Introductory Concepts
• Actions in Rem
• Actions in Personam
• Not mutually exclusive
• In action in personam it is assumed that an action
in rem is pending, so that all rights were tacitly
reserved.
• Action in Rem – can directly proceed against the
property
• Juridical Personality of the Ship
3. • Action in rem developed by maritime lien since
ancient time and action in rem by statute.
• Maritime Lien – is a claim or privilege upon a
maritime res in respect of services done to or
injury caused by it.
• Maritime res can be the ship, cargo or other thing
associated with the ship
• Unlike a line at common law, maritime lien does
not require possession of the res, for there is a
specific legal process called action in rem.
4. • m.v. Kapitan Kud , the Supreme Court has inter alia held
that to enable a claimant to seek and get a vessel arrested
in respect of any maritime claim, all that he has to do is to
make out a prima facie case, and the arrest of the vessel
shall be granted. At the time of the application for arrest,
the Court will not go into the evidence in the matter and/or
the probability of the Plaintiff succeeding in the Suit.
• The writ is issued to the "owner and parties interested in
the property proceeded against.“
• Arrest of Ships – What are the circumstances?
• Indemnity and Security Assurance
• Limitation of Liability Suit
5. Changes
• Earlier, concurrent Jurisdiction of HCs of Bombay, Madras and
Calcutta – Extented to AP, Gujarat and Kerala (State Waters)
• MV Elisabeth and Ors. Harman Investment and Trading Corporation
• LCI 151st Report -1994
• Now – all Coastal States’ HC over State Waters including Karnataka,
Telangana and Odisha.
• Section 3 with 2 (1) (e)
• Central Government can extend over any other HC by notification in
the official gazette.
• irrespective of the place of residence or domicile of the Owner.
• Criticism: delimiting state TWs
6. List of Cases that lead to the
Development
• Jayaswal Shipping Company v S.S. Leelavati
• National Co Ltd. Vs. Asia Mariner
• Kamalakar Bhaga v. Scindia Steam Shipping
Navigation Co Ltd
• Issues: Dispute arising out of charter parties
• Outbound carriage by vessels
7. Elisabeth Case
• The m.v.Elisabeth, the foreign vessel in this case, left
the Port of Marmagoa without issuing bills of lading or
other documents for the goods shipped. The shipper
instituted a suit in the High Court of Andhra Pradesh,
invoking its admiralty jurisdiction, by means of an
action in rem. Pursuant to this, the vessel was arrested
when it entered the Port of Visakhapatnam
• Objection to Jurisdiction
• Dismissed objections
• Took help from IL and development of admiralty laws
in different countries all over the world.
8. The Admiralty (Jurisdiction and Settlement of
Maritime Claims) Act, 2017
• Introduced in Lok Sabha in Nov 21, 2016
• Passed March 10, 2017
• Rajya Sabha – july 24, 2017
• Enforcement from April 1, 2018
• Repealed Admiralty Court Act, 1861, the Colonial
Courts of Admiralty Act, 1890 and the Provisions
of the Letters Patent, 1865
• In consonance with International Conventions for
Arrest of Ships, 1952 and 1999 as well as the
International Convention on Maritime Liens, 1993
9. • Applicability of the Act
• Definition of Vessel – Section 2 (1) (l)
• “to include any ship, boat, sailing vessel or other description of vessel
used or constructed for use in navigation by water, whether it is propelled
or not, and includes a barge, lighter or other floating vessel, a hovercraft,
an off-shore industry mobile unit, a vessel that has sunk or is stranded or
abandoned and the remains of such a vessel”
• Excluding broken vessel – cannot be used for
navigation
• Section 4 – Maritime Claims under Admiralty
Jurisdiction – wider than International Conventions
10. • Article 1 of International Convention on the Arrest of
Ships, 1999
• Additional claims: They are claims related to port or
harbor dues, canal, dock or light tolls, waterway
charges and such like; particular average claims; claims
by master or crew or their heirs/ dependents for
wages, cost of repatriation or social insurance
contributions; insurance premiums, mutual insurance
calls; commission/ brokerage agency fees payable by
vessel owner or demise charterer; environment
damage claims or threat thereof; and wreck removal
claims.
11. Arrest of Vessel in Rem (section 5)
• Sister ship only after Clause 1 is satisfied.
• The enforcement of the Maritime Claims by an action in
rem has been narrowed down under the Admiralty Act.
Arrest of vessels owned by Time Charterers and Voyage
charterers in respect of Maritime claims against them is
conspicuously absent from the new Act; i.e. Article 3 (2) of
the 1999 Arrest Convention, does not find a place in the
Admiralty Act; which gives rise to issues in this behalf and
in relation to enforcements of maritime claims against
time/voyage charterers in India.
• What is demise charter, time charter and voyage charter?
13. Maritime Lien
• Section 2 (1) (g)
• Section 9 – Priority
• Period of Limitation
• Priority of Maritime Claims – Section 10
14. Section 11
• counter security either at the time of arrest or
to continue an arrest
• the arrest is held to be wrongful or unjustified
or excessive security has been demanded, or
provided
• Earlier Written undertaking
15. • The High Court is empowered to auction and
sell a vessel that has been abandoned by the
owner within 45 days of such arrest or
abandonment, which may be extended by a
further period of 30 days for reasons to be
recorded by the court in writing.
16. Criticisms
• No rules
• Retrospective Application – Section 17 (2) –
Dumb barge, offshore units
