Critical Analysis of Arrest of Ships Under Admiralty Bill, 2016
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This Blog is written by Arpana Komal from Central University of South Bihar, Gaya. Edited by Ravikiran Shukre.
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INTRODUCTION:
In India, presently the law governing the admiralty jurisdiction of courts and related aspects of maritime law is too outmoded. The High Court’s jurisdiction to entertain maritime disputes results in letter patents. [1] British established the legal system on this subject, and in India, there is no local legislation dealing with the same. [2] The only statue that exists “The Colonial Courts of Admiralty (India) Act,1891,” and it is subordinate legislation under the section of an English enactment as “The Colonial Courts of Admiralty Act,1890.” [3] For quite a long time there has been no development within this area of law. Even the Hon’ble Supreme Court has noted the need to update the legislation related to admiralty jurisdiction and maritime law [4] and similar recommendations to have updated the statues have also been recognized by the law commission of India. [5] With the same objective, a bill was introduced in the parliament in 2005, however, it lapsed. [6] Again in 2016 another Bill- The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill,2016 [7] has been introduced and was passed.
The bill objective is to equalize and make uniform many aspects of law, together with conferring admiralty jurisdiction to many high courts, [8] coping with maritime claims [9] and liens [10] and also the order of their priorities [11], and providing for the procedure of proceedings among many alternative things. This article would critically analyze the provisions related to the arrest of ships within the Admiralty Bill,2016. The concept of the arrest of ships has been discussed in this article. It shall then analyze provisions within the bill with relation to the arrest of ships and then compare it concisely with the prevailing law of nation and position in other countries. This article seeks to know whether or not the bill had brought uniformity within the laws, or whether there are still gaps left out despite an update to legislation coming over a century later.
ARREST OF SHIPS:
Before moving on to research the provisions of the bill with regard to the arrest of ships, it’s necessary to concisely look at what it means to arrest a ship. It shall be helpful to consider an illustration. Suppose someone suffered from some wrongdoing and currently moves the court against the shipowner. The court orders the shipowner to pay to the party bound of a total of cash for the wrongdoing caused, however, the shipowner refuses to pay. The party will now move the court for attachment to the ship owner’s property. But, what if the shipowner has already disposed of the assets? The decree would be of no worth.
Thus, as associate degree interim lives to secure the position of an applicant, the arrest of ships comes in. The applicant will approach the court and invoke it’s in rem jurisdiction to get an order for the arrest of the ship. it’s a mechanism to shield the interests of the applicant and to confirm that justice isn’t defeated by merely taking the ship out of the court’s jurisdiction. If the shipowner fails to comply with the orders of the court, the ship is also sold to satisfy the judgment debt. the concept is analogous thereto of a freeing injunction (or Mareva Injunction, as it is usually called) arose out of English case, The Mareva. [12] However, this article deals solely with the arrest of ships.
POSITIONS PROPOSED IN THE BILL:
The Bill’s objective is to ascertain a legal framework to consolidate the prevailing laws about admiralty jurisdiction of courts, admiralty proceedings on maritime claims, the arrest of vessels, and connected problems and additionally aims to interchange archaic laws that are clogging economical governance. This bill extensively discusses the arrest of ships and alternative connected matters. It seems that adequate attention has been given since the definitions, powers, protections, etc., have all been expressly and properly ordered down. Section 2(1)(c) defines arrest as “detention or restriction for removal of the vessel by order of a court to secure a maritime claim together with the seizure of a vessel in execution or satisfaction of a judgment or order.” it’s attention-grabbing to notice that “arrest” has not been restricted to removal for security against a claim solely, however, has been expressly created to incorporate seizure for execution proceedings or alternative orders also. whereas even otherwise the courts would have dominated that ‘arrest’ includes such seizure implicitly, this ensures that there remains no ambiguity.
Section 5 deals with the arrest of the vessel in rem. It states:
• The High Court may order the arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that-
- The person who owned the vessel at the time when the maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is effected; or
- The demise character of the vessel at the time when the maritime claim arose is liable for the claim and is the demise character or the owner of the vessel when the arrest is effected; or
- The claim is based on a mortgage or a charge of the similar nature on the vessel; or
- The claim relates to the ownership or possession of the vessel; or
- The claim is against the owner, demise character, manager, or operator of the vessel and is secured by a maritime lien as provided in section 9.
• The High Court may also order the arrest of any other vessel for the purpose of providing security against a maritime claim, in lieu of the vessel against which a maritime claim has been made under this Act, subject to the provisions of sub-section (1):
Provided that no vessel shall be arrested under this subsection in respect of a maritime claim under clause (a) of sub-section (1) of section 4.
To simplify, a ship could also be ordered to be arrested if there are claims against the owner, claims concerning ownership, or claims secured by maritime liens, and these claims easily fall under the qualifications listed under article 3(1) of the 1999 Arrest convention as claims against the owner of the ship; claims against the demise character of the ship; claims based upon mortgage; claims regarding ownership; claim against the owner, charterer or operator based on the maritime lien.
Sub-section (2) is interesting, which confers on the high courts the ability to order the arrest of associated and sister ships. However, it’s to be noted that there are not any safeguards or limits to the present power of the tribunal. In fact, the sub-section doesn’t use the word associated ships or sister ships. whereas this part might even be construed keeping in mind the legislative intention to mean that solely associated and sister ships could also be in remission, it yet leaves ambiguity and area for potential judicial interpretation. There could also be an instance of courts using this provision to arrest ships not related to the owner of the claim, and also the issue. the sole restriction on this sub-section is with relevance claims underneath section 4(1)(a), i.e., a dispute relating to possession of a vessel. This restriction is simply logical since only the ship the possession of that is controversial has to be in remission for the judgment to be with success enforced. Further, this is often in consonance with international law. [13]
The bill also provides for the protection of owner, operator, and many more, from misuse of arrest provision by a party. Section 11 provides that the high court may ask a claimant to provide that the high court may ask a claimant to provide an undertaking to pay damages or to pay security for any damage that the defendant may suffer due to arrest. It gives a non-exhaustive list of two cases in which such security or undertaking may be demanded by the court:
1. The arrest having been wrongful or unjustified; or
2. Excessive security having been demanded and provided. [14]
Therefore, the bill explicitly lays down the principles of admiralty law to codify and ensure consistency and certainty.
It appears thus that in itself, with respect to the arrest of ships, the bill is sufficient and complete in laying down the provisions and providing certainty. However, as pointed out above, some points of ambiguity still remain over which it could be improved.
COMPARISON WITH OTHER LEGAL SYSTEM & INTERNATIONAL LAW:
To understand the bill properly and to adequately analyze its position with relevancy state of affairs in up to date law, we have a tendency to shall currently concisely examine the provisions beneath the law of the nation and in different legal systems.
Under this bill, the court might demand security for the arrest of a ship. In Germany, Sweden, Finland, and European country among others, security may be a necessary demand (unless exceptional conditions exist) [15]. On the opposite hand, in several jurisdictions resembling France, Italy, Portugal, China, Hong Kong, Denmark, among others, the protection is at the discretion of the court [16]. According to 1999 Arrest Convention [17], the discretion lies with the court to order security for the defense of the homeowners.
The ‘sister ships’ provision mentioned antecedently, as per the 1952 Convention [18], the ‘sister ship’ rule doesn’t apply in cases of claims of the mortgage. it’s fascinating to notice that no such restriction exists within the Admiralty Bill.
According to the 1999 convention [19], the arrest of ships might solely be created in respect of a maritime claim. It seems that the Admiralty Bill is in conformity with this provision since Section five solely permits arrests of maritime claims.
It seems that largely, the bill will take into thought and derive from the law of states. As an associate example, the title and contents of Section eleven are quite virtually just like the title and contents of Article 6 of the 1999 Conventions. Similarly, similitude in phrases and language exists inside the Admiralty Bill and international conventions. However, a few of pointers from these conventions, etc. are unnoticed, although the intention behind doing or the explanation for doing therefore remains unclear.
CONCLUSION:
The Admiralty Bill pulls the framework for settlements of Maritime claim forward to an excellent extent; however, it’s still appearing that there still exists space for a few enhancements. Despite the fact that India isn’t a signatory to the preceding international conventions, it’s however stirred towards uniformity. The Bill presents a significant overhaul by codifying and laying down principles. But, as discussed in this article, even delivering a law over a hundred years later, a couple of things are still left ambiguous or unnoticed fully. However, the bill is a great advancement to the maritime regime and jurisprudence in India.
REFERENCES:
2] Maritime Jurisdiction and Admiralty Law in India, Samareshwar Mahanty (New Delhi: Universal Law publishing co., 2009) pg. 52.
3] Maritime Jurisdiction and Admiralty Law in India, Samareshwar Mahanty (New Delhi: Universal Law publishing co., 2009) pg. 52.
4] M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., [AIR (1993) SC 1014].
5] Law Commission of India, 151st Report.
6] The Admiralty Bill, 2005 (Bill 68 of 2015).
7] Bill 258 of 2016.
8] Section 2 (1)(e).
9] Section 4.
10] Section 2(1)(g).
11] Section 9 and Section 10.
13] Article 3(2), International Convention on Arrest of Ships, 1999, Article 3(1) read with Article 1(1), International Convention Relating to the Arrest of Sea-Going Ships, Brussels,1952.
14] Section 11.
15] Berlingieri on Arrest of Ships: A commentary on the 1952 and 1999 Arrest Conventions, Franceso Berlingieri (informa, 2011) pg.388.
16] Berlingieri on Arrest of Ships: A commentary on the 1952 and 1999 Arrest Conventions, Franceso Berlingieri (informa, 2011) pg.388.
17] Article 6, International Conventions on Arrest of Ships, 1999.
19] Article 2, International Convention on Arrest of Ships,1999.