directorate general of shipping ““““ floor stakeholders on 04.12.12 in the directorate...
TRANSCRIPT
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On DGS Website
भारत सरकार / / / / GOVERNMENT OF INDIA
पोत प�रवहन मंऽालय / / / / MINISTRY OF SHIPPING
नौवहन महािनदेशालय / DIRECTORATE GENERAL OF SHIPPING
““““�बटा �ब��डंग””””, 9 वी मं�जल //// ““““BETA BUILDING”, 9th FLOOR
आय-िथंक टे' नो कॅ) पस / I-THINK TECHO CAMPUS
टेलीफोनटेलीफोनटेलीफोनटेलीफोन/TelTelTelTel ::::91919191----22222222----25752040Ð43 कांजुर माग5 (ईः ट)/KANJUR MARG (EAST), फै' स/Fax:91919191----22222222----25752029257520292575202925752029////35353535
ई-मेल/ E-mail: [email protected] मुंबई-400 042/MUMBAI–400 042 वेब//// Web: : : : www.dgshipping.gov.in
F.No.MSL-11(9) 99 - VII Dated: 18.08.2014
Notice inviting comments from the stakeholders concerned
The Directorate is considering a proposal for an enactment of the Admiralty (Jurisdiction
and Settlement of Maritime Claims) Bill which consolidates and amends the laws relating to the
Admiralty Jurisdiction of Courts, legal proceedings in connection with vessels, their arrest,
detention, sale and matters connected therewith or incidental thereto.
The said draft Bill [first working draft dated 09.02.12] has already been discussed with
the stakeholders on 04.12.12 in the Directorate General of Shipping, GOI. However, recently
the Ministry of Law & Justice, GOI, has prescribed a new pre-legislative consultation policy to be
followed while making legislations by the respective Departments/Ministries.
Accordingly, in order to meet the said requirement an explanatory note along with the
proposed draft Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, is placed here
on the official website of the Directorate [www.dgshipping.gov.in] for valuable comments /
suggestion of all stake holders concerned, on the proposed draft Bill.
The comments may kindly be sent to the Directorate at the earliest or latest by
18.09.2014 to the following e-mail IDs;
[email protected] & [email protected].
Yours faithfully,
(Ash Mohomad)
Assistant Director General of Shipping (MSL)
To
All the stake holders concerned through DGS Website.
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Explanatory Note
1.0 Introduction:
1.1 The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2012 is proposed to be
a comprehensive legislation on Admiralty Law of India, which intended to covers all the claims
against the ship owner or the ship.
1.2 The enactment of this proposed Admiralty Bill will help to codify and clarify the admiralty
laws of the country in accordance with the observations of the Supreme Court in the case of
M.V. Elizabeth & Others Vs Harwan Investment & Trading Pvt. Ltd. JT 1992 (2) SC 65. The
Admiralty Bill once enacted will also repeal the outdated and obsolete laws made during the
British period on admiralty jurisdiction.
2.0 Background and Scope:
2.1 The Supreme Court in the case of M.V. Elizabeth & Others Vs Harwan Investment &Trading
Pvt. Ltd. JT 1992(2) S.C. 65, while stressing on the need to codify and clarify the admiralty laws
of the country had observed that:
“Admiralty jurisdiction, an unfamiliar branch of jurisprudence, was the subject of illuminating
debate in this appeal directed against judgment of the Andhra Pradesh High Court. But what
was surprising to hear, even in 1991, that the admiralty jurisdiction by the High Courts in Indian
Republic is still governed by the obsolete Acts of 1861, 1890 & 1891. Yet there appeared no
escape from it, not withstanding 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. Various provisions in
1890, Act have been rendered not only anomalous but even derogatory to the sovereignty of
the state. Nothing further need be said except the hope that the unfortunate state of affairs
shall be bought to an end at the earliest.”
2.2 Pursuant to the above directions of the Hon. Supreme Court the whole question of
admiralty jurisdiction was examined by the Law Commission of India. Based on the
recommendations of the Law Commission of India the Admiralty Bill, 2005 was drafted.
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Thereafter the Admiralty Bill was revised and the Admiralty (Jurisdiction & Settlement of
Maritime Claims) Bill, 2009 was circulated to various Ministries. However due to the dissolution
of the 14th
Lok Sabha, the said Admiralty Bill was lapsed.
2.3 Later on, a revised draft Note for the Cabinet enclosing inter alia the revised draft Admiralty
(Jurisdiction & Settlement of Maritime Claims) Bill, 2009 with required explanation for changes
made was again referred to the Legislative Department. Finally the Legislative Department of
the Ministry of Law sent the First Working Draft of the Admiralty (Jurisdiction & Settlement of
Maritime Claims) Bill, 2012 along with the Draft Cabinet Note to the Ministry of Shipping which
was sent to the Directorate General of Shipping. This revised draft Admiralty Bill, 2012
incorporates the recommendations of the Parliamentary Standing committee and extensive
consultations with other Departments /stakeholders. This draft Bill [first working draft dated
09.02.12] was discussed with the stakeholders on 04.12.12 in the Directorate General of
Shipping, GOI & corrected/revised version was sent to the Ministry of Shipping on 14.01.13.
Later on a revised version of explanation to section 2 (1) (j) of the proposed bill [as written in
the enclosed draft Bill] was also sent to the Ministry of Shipping on 04.07.13.
2.4 The extent of the proposed draft Admiralty (Jurisdiction and Settlement of Maritime Claims)
Bill, 2012 relates to the jurisdiction of courts, legal proceedings in connection with the vessels,
their arrest, detention and sale and matters connected therewith or incidental to shipping.
3.0 Features of the proposed draft Admiralty (Jurisdiction & Settlement of Maritime Claims) Bill:
3.1 The proposed draft Admiralty Bill seeks to consolidate and amend the existing laws relating
to admiralty jurisdiction, vests civil jurisdiction with High Courts in admiralty cases and lastly
lays down the scope of admiralty jurisdiction in India.
3.2 The Bill also seeks to repeal the (a) the Admiralty Court Act, 1840 (b) Admiralty Offences
(Colonial) Act, 1849, (c) Admiralty Jurisdiction (India) Act, 1860, (d) Admiralty Court Act, 1861,
(e) Colonial Courts of Admiralty Act, 1890, (f) Colonial Courts of Admiralty (India) Act, 1891, and
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(g) the provisions of the Letters Patent, 1865 applicable to the admiralty jurisdiction of the
Bombay, Calcutta and Madras High Courts.
3.3 In addition, the Admiralty Bill also specifies when the court can proceed in personam (i.e.
against a person rather than property for enforcing a liability) and when admiralty jurisdiction
can be invoked by an action in rem (i.e., against the ship or property rather than a person).
3.4 The Admiralty Bill also clearly specifies the order of priority in settling claims in admiralty
proceedings when a ship is sold in an action in rem. It also lays down the principles that shall
apply while determining the priority of claims.
3.5 Lastly, the proposed Admiralty Bill lays down provisions relating to maritime lien. The ship
or its property can be used to settle claims for compensation for services rendered while saving
life or the ship, wages due to master or crew of the ship, claim for loss of life or injury due to
operation of ship, pilotage dues, port, canal or other waterway dues, claim arising out of
physical damage caused by ship. However, it cannot be used to settle claims arising out of
damage in connection with carriage of oil or other hazardous or noxious substances or
radioactive matter etc.
4.0 Pre-legislative Consultative Policy:
4.1. The Ministry of Law & Justice, GOI vide its D.O. letter No. 11 (35)/2013-L1 dated 05.02.14
has prescribed a pre-legislative consultation policy to be followed while making legislation.
Although the said draft Bill has already been discussed with the stakeholders on 04.12.12 in the
Directorate General of Shipping, GOI. However, in order to meet the new procedure prescribed
by the Ministry of Law,GOI, the draft Bill is placed on the official website of the DG Shipping,
GOI [www.dgshipping.gov.in] for minimum 30 days for the comments of the stakeholders.
5.0 Proposed draft Admiralty (Jurisdiction & Settlement of Maritime Claims) Bill:
5.1 The proposed draft Bill under consideration is placed below for comments of the
stakeholders:
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First working Draft
[Legislative Department]
9th
February, 2012
[Revised proposed draft Bill, based on the discussions held in the meeting with
stakeholders 04.12.12]
THE ADMIRALTY (JURISDICTION AND SETTLEMENT
OF MARITIME CLAIMS) BILL, 2012
A
BILL
to consolidate and amend the law relating to the admiralty jurisdiction of
courts, legal proceedings in connection with vessels, their arrest, detention and sale and matters connected therewith or incidental thereto;
BE it enacted by Parliament in the Sixty-third Year of the Republic of India
as follows:-
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Admiralty (Jurisdiction &
Settlement of Maritime Claims) Act, 2012.
(2) It shall come into force on such date as the Central
Government may, by notification in the Official Gazette, appoint.
Short title and
commencement
2. (1) In this Act, unless the context otherwise requires, -
(a) “admiralty jurisdiction” means jurisdiction exercised by a
court on any matter referred to in section 5;
(b) “admiralty proceeding” means any proceeding pending
before a court, exercising admiralty jurisdiction, on or after the
commencement of this Act;
(c) “charge” means any due with reference to port or pilotage,
Definitions
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but does not include any charges in respect of light dues,
lighthouses, buoys or beacons;
(d) “court” means the High Court or any other court exercising
admiralty jurisdiction under section 3;
15 of 1908
15 of 1908
44 of 1958
(e) “goods” means any property including live animals,
containers, pallets or such other articles of transport or packaging
supplied by the consignor, irrespective of the fact whether such
property is to be carried on or under the deck;
(f) “High Court” in relation to Admiralty proceedings, means
any of the High Court of Calcutta, High Court of Bombay, High
Court of Madras, High Court of Karnataka at Bangalore, High Court
of Gujarat at Ahmedabad, High of Orissa at Cuttack, High Court of
Kerala at Cochin and High Court of Andhra Pradesh at Hyderabad
in India;
(g) “inland waters” includes all waters that are in fact
navigable, irrespective of whether they are affected by tides or are
land-locked or open or contain salt or fresh waters, and any part of
the sea adjacent to the coast of India notified by the Central
Government to be inland waters for the purposes of this Act;
(g) “limits of the port” shall have the meaning assigned to this
expression in the Indian Ports Act, 1908;
(h) “maritime lien” means the maritime lien specified in section
13;
(i) “port” shall have the meaning assigned to it in the Indian
Ports Act, 1908;
(j) “vessel’ includes any ship, boat, sailing vessel or other
description of vessel used in navigation.
[Explanation: Save and except the claims of the Master,
Officer and other Members of the Vessel’s complement, in respect of
their employment or arising out of direct connection with the
operation of the vessel, during the course of their employment,
including, but not limited to claims by such Master, Officer and
other Members of the Vessel’s complement for wages, cost of
repatriation, social insurance, contributions, loss of life or personal
injury and disbursements, a vessel ceases to be a vessel for the
purpose of a court exercising its admiralty jurisdiction on such
vessel, once, (a) permission for beaching for the purpose of
breaking and/or demolition of the said vessel has been obtained
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from the relevant authority, (b) Bill of Entry for home consumption
for the purpose of breaking and/or demolition of the said vessel has
been filed, and (c) total duty assessed by the Customs authorities
for an import of the said vessel for breaking and/or demolition has
been paid to the Custom’s authorities.”
(2) The words and expressions used herein but not defined and
defined in the Merchant Shipping Act, 1958 shall have the meanings
respectively assigned to them in that Act.
CHAPTER II
JURISDICTION OF COURTS
[definition of
exclusive
economic
zone may be
required]
3. (1) Subject to the provisions of sub-section (2), the civil
jurisdiction in respect of all claims under this Act shall vest in the
High Court and be exercisable over the waters upto and including
the territorial waters and inland waters of their respective
jurisdiction and Exclusive Economic Zone of India be in accordance
with the provisions contained in this Chapter.
(2) If at any time, the High Court is of the opinion that the
number of cases filed under this Act is unduly large, it may, by
notification in the Official Gazette, confer admiralty jurisdiction in
such matters, wholly or to the extent it considers necessary, on such
of the principal civil courts of the State as may be specified in the
notification.
(3) Any notification referred to in sub-section (2) may also contain
such supplemental, incidental and consequential provisions as the
High Court may deem necessary.
Jurisdiction of
courts
4. The Supreme Court may on application of any party, transfer, at
any stage, any admiralty proceeding from one High Court to any
other High Court and the latter High Court shall proceed to try, hear
and determine the matter from the stage at which it stood at the time
of transfer.
Provided that no such proceeding shall be transferred unless
parties to the proceeding have been given an opportunity of being
heard in the matter.
Transfer of
proceedings by
Supreme Court
5. (1) The court shall have jurisdiction-
(a) to hear and determine any of the questions and claims by or
against vessel mentioned in sub-section (2);
(b) in relation to any of the proceedings mentioned in section 7;
Admiralty
jurisdiction
(2) For the purpose of clause (a) of sub-section (1), a court may
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44 of 1958
exercise jurisdiction to hear and determine any of the following
questions or maritime claims, namely:-
(a) any claim to the possession or ownership of a vessel or to
the ownership of any share therein;
(b) any question arising between the co-owners of a vessel as
to its possession, employment, operation or earnings of that vessel;
(c) any claim in respect of a registered mortgage or of charge
on a vessel or any share therein;
(d) any claim for damage caused to a vessel during her stay, or
voyage;
(e) any claim for damage caused by a vessel including civil
liability for damage caused by pollution covered under the
Merchant Shipping Act, 1958;
(f) any claim for loss of life or personal injury sustained in
consequence of any defect in a vessel or in her apparel or
equipment or in its operation, or in its operation, or in consequence
of the wrongful act, neglect or default of-
(i) the owners, charterers or persons in possession or
control of a vessel; or
(ii) the master or crew of a vessel, or any other person for
whose wrongful act, neglect or default—the owner, charterer
or person in possession or control of a vessel is responsible,
being an act, neglect or default, in the navigation or
management of the vessel, in the loading, carriage or
discharge of goods on, in or from the vessel, or in the
embarkation, carriage or disembarkation of persons on, in or
from the vessel;
(g) any claim for loss of or damage to goods carried on board a
vessel;
(h) any claim arising out of any agreement relating to the
carriage of goods and passengers on board in a the vessel or to
the use or hire of a the vessel whether contained in a charter party
or otherwise;
(i) any claim in respect of services rendered for salvage in
saving life from a vessel or in preserving the vessel, cargo,
equipment, apparel or of any other property of the vessel or wreck;
(j) any claim in the nature of towage, pilotage in respect of a
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44 of 1958
vessel;
(k) any claim in respect of goods, materials, provisions, bunker,
insurance premiums or other necessaries supplied to a vessel or
any services rendered to a vessel for her operation or maintenance;
(l) any claim in respect of-
(i) the construction of a vessel;
(ii) the alteration, repair or equipping of a vessel,
(iii) any liability for any port, harbour, canal or light tolls,
charges, dues, tolls, charges or dues of similar kind in relation
to a vessel;
(m) notwithstanding anything contained in the provisions of
sections 150 and 151 of the Merchant Shipping Act, 1958, any
claim by a master or member of the crew of a vessel or their heirs
and dependants for wages or any sum allotted out of
wages or adjudged to be due which may be recoverable as
wages or cost of repatriation or social insurance contribution
payable on their behalf or any amount an employer is under an
obligation to pay to a person as an employee,
whether the obligation arose out of a contract of
employment or by operation of a law (including operation of a law
of any country) for the time being in force, and includes any
claim arising under a manning and crew agreement,
relating to a vessel;
(n) any claim by a master, shipper, charterer or agent in respect
of disbursements made on account of a vessel;
(o) any claim arising out of an act which is or is claimed to be in
the nature of general average;
Explanation- For the purposes of this clause, “general average”
means any extraordinary sacrifice or expenditure voluntarily and
reasonably made or incurred in time of peril for the purpose of
preserving the vessel or property imperiled in the common
adventure;
(p) any claim arising out of bottomry. Any dispute arising out of
a contract for the sale of the vessel.
(3) While exercising jurisdiction under clause (b) of sub-section
(2), the court may settle any account outstanding and unsettled
between the parties in relation to a vessel, and direct that the vessel,
or any share thereof, shall be sold, or make such other order as the
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court thinks fit.
(4) The provisions of this section shall apply to–
(a) in relation to all vessels whether Indian or not irrespective
of the residence or domicile of owners thereof;
(b) in relation to all maritime claims, wherever arising
(including, in the case of cargo or wreck salvage, claims in
respect of cargo or wreck found on land); and
(c) all registered mortgages or charges, whether legal or
equitable, including mortgages and charges created under any
foreign law.
6. (1) The admiralty jurisdiction of the court shall not be invoked
by an action in rem by arrest of a vessel, in the case of a vessel
registered in India as an Indian vessel, unless four two clear working
days’ notice in writing is served upon the registered owner or the
master of the vessel intended to be proceeded against, stating the
cause of action and the quantum of claim and the date and time or
application of the court for arrest and calling upon the owner or
master to provide security for the claim to the satisfaction of the
admiralty court in lieu of the arrest and where such a security is
provided, the court shall entertain the action without arresting the
vessel and shall order the arrest of the vessel only in the event of
failure to provide such security. (it should be ensured here that the
four days cannot be used for action with illegal intention to beat the
system)
(2) Notwithstanding anything contained in this Act or any other
law for the time being in force, the admiralty jurisdiction of the High
Court shall not be invoked by action in rem unless the vessel against
which the proceedings have been commenced is within the territorial
or inland waters of India at the time of commencement of the
proceedings and as such is within the jurisdiction of that High Court;
Provided that no such vessel shall be arrested unless there is
failure to provide security.
Conditions in
respect of
Indian Vessels
and vessels
presence for
invoking
admiralty
jurisdiction in
rem.
[here it may
be personam] 7. (1) The jurisdiction of the court may be invoked by an action in
rem in the cases,-
(i) referred to in clauses (a) to (c), (e) and (p) of sub-section
(2) of section 5; or
(ii) of maritime lien or charge on any vessel or its property
including bunker.
Mode of
exercise of
admiralty
Jurisdiction
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(2) In the case of any such claim as is mentioned in clauses (d),
and (f) to (o) of sub-section (2) of section 5, where–
(a) the claim arises in connection with a vessel; and
(b) the person who would be liable on a claim in an action in
personam (hereinafter referred to as the ‘the relevant person’)
was, when the cause of action arose, the beneficial owner, or
charterer of, or in possession, or in control of the vessel,
admiralty jurisdiction may be invoked (whether or not the claim gives
rise to a maritime lien on that vessel) by an action in rem against,-
(i) that vessel, if at the time when the action is brought the
relevant person is either the beneficial owner of that ship as in
respects all the shares in it or the charterer of it under a charterer
by demise; or
(ii) any other vessel of which, at the time when the action is
brought, the relevant person is the beneficial owner as in respects
all the shares in it.
(3) Where, in the exercise of its admiralty jurisdiction, the court
orders any vessel or other property to be sold, the court shall have
jurisdiction to hear and determine any question arising as to title to
the proceeds of sale.
8. (a) A court may in the exercise of its admiralty jurisdiction
order the arrest of any vessel for the purpose of providing security for
a claim which is or may be the subject of an arbitration or any
proceedings contemplated, pending or proceeding, either in India or
elsewhere, and whether or not it is subject to the law of India, if the
person seeking the arrest has a claim enforceable by an action in
personam against the owner of the vessel concerned or an action in
rem against such vessel or which would be so enforceable but for any
such arbitration or proceedings.
(b) Any vessels so arrested or any security for, or the proceeds of,
any such vessel shall be held as security for any such claim or
pending the outcome of any such arbitration or proceedings.
(c) Unless the court orders otherwise any vessel so arrested shall
be deemed to be vessel arrested in an action in terms of this act.
89 (1) This section applies to any claim for damage or loss of life or
personal injury arising out of-
(i) a collision between vessels; or
Restrictions on
entertainment
of actions in
personam in
collision and
other similar
cases.
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(ii) the carrying out of or omission to carry out, a manoeuvre
in the case of one or more vessels; or
(iii) non-compliance, on the part of one or more vessels, with
the collision regulations.
(2) While exercising admiralty jurisdiction, a court shall not
entertain any action in personam against any defendant unless-
(a) such defendant, at the time of commencement of the
action, actually and voluntarily resides or carries on business
or personally works for gain in India;
Provided that an action may be entertained in any case,
where there are more defendants than one if the defendant
who does not actually and voluntarily reside or carry on
business or personally work for gain in India is made a party
to such action either with the leave of the court, or each of
such defendants acquiesces in, such institution; or
(b) the cause of action, wholly or in part, arises in India,
including inland waters of India or within the limits of a port
of India;
(3) A court shall not entertain any action in personam against
any defendant-
(a) if an action arising out of the same incident or series of
incidents is pending in a court or has been heard and
determined by such court or
(b) if a vessel is beneficially owned or chartered by demise
by the defendant and such vessel has been arrested and
proceedings are pending in respect thereof.
(4) The court shall not entertain any action in personam to
enforce a claim to which this section applies until any proceedings
previously brought by the plaintiff in any court outside India against
the same defendant in respect of the same incident or series of
incidents have been discontinued or have otherwise come to an end.
(5) The provisions of sub-sections (2), (3) and (4) shall apply to counter-claims (except counter-claims in proceedings arising out of the same incident or series of incidents) as they apply to actions, and a reference to the plaintiff and the defendant for this purpose shall be construed as reference to the plaintiff in the counter-claim and the defendant in the counter-claim respectively.
(6) The provisions of sub-sections (2), (3) and (4) shall not apply
to any action or counter-claim if the defendant submits or agrees to
submit the jurisdiction of the court.
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(7) Subject to the provisions of sub-section (4), the court shall
have jurisdiction to entertain an action in personam to enforce a claim
to which this section applies whenever any of the conditions
specified, in clauses (a) and (b) of sub-sections (2) and (3), are
satisfied and where applicable, the rules of the court relating to the
service of process outside the jurisdiction shall apply.
910. Notwithstanding anything contained in section 5, it shall be
open to the court in its discretion, at any stage of the proceedings to
treat proceedings in rem or in personam, either in whole or in part,
and to grant such reliefs and make such directions and orders
(including amendments to the pleadings) as it may consider
appropriate and just.
Directions by
Court.
101. On the sale of a ship by the court in exercise of its admiralty
jurisdiction, the vessel shall vest in the purchaser free from all
encumbrances.
Vesting of
rights on sale
of vessels
11. (1) In an action in rem, where the court has ordered the
property proceeded against to be sold-
(a) a notice in the manner provided in sub-section (2) shall
be given by the court; and
(b) any party which obtains a decree or order against the said
property may claim such reliefs as are provided in sub-section (3).
(2) For the purposes of clause (a) of sub-section (1), a notice
shall be given in one international and one national newspaper as the
court may specify containing following particulars, namely:-
(a) number of the action;
(b) names of the parties to an action;
(c) gross sale proceeds; and
(d) the order of priority of the claim to the sale proceeds.
(3) Any party referred to in clause (b) of sub-section (1) may
apply to the court by a notice of motion for an order determining the
order of priority of the claims against the proceeds of the sale of the
property.
(4) The court shall determine order of priority of the claim to
the sale proceeds on expiration of period of ninety days from the
publication of notice under sub-section (2):
Distribution of
sale proceeds
Page 14 of 21
Provided that any party having a claim to the property or the
proceeds of sale thereof may apply to the court before the expiry of
period of ninety days for leave to intervene and prove claims by
filing an action before it or by filing a suit before any other
appropriate court before the expiration of that period.
(5) The court may extend period of ninety days on the
application of any party which has instituted proceedings before any
other court as provided in sub-section (4) or before the court of
competent jurisdiction in India for obtaining a decree against the
property or proceeds of sale and the said court shall not disburse the
sale proceeds or determine priority until thirty days after the disposal
of the said suit or action and any appeal therefrom.
(6) Notwithstanding the provisions contained in sub-section
(3) above, the court may determine priority among the parties and
direct payment out of the sale proceeds on an application by any
party which has obtained a decree or order against the vessel or its
property if the court is of the opinion that the claim of the applicant is
entitled to priority over the claim in respect of which a suit or action
has been instituted.
Provided that the court shall give an opportunity of hearing
to all parties which may have made claims and filed suit or action
against the property or sale proceeds within the specified period of
ninety days or such other period which may be extended by the court
before determining priority and directing disbursement out of the sale
proceeds.
12.-(1) Where in an action in rem against a vessel the court has
ordered the vessel to be sold, any party who has obtained or obtains
judgment against the vessel or proceeds of sale of the vessel may-
a) in a case where the order for sale contains the further order
referred to in paragraph (2), after the expiration after period specified
in the order under paragraph (2) (a);
or
b) in any other case, after obtaining judgment,
apply to the Court by summons for an order determining the order of
priority of the claims against the proceeds of sale of the vessel.
(2) Where in an action in rem against a vessel the court orders the
vessel to be sold, it may further order-
(a) that the order of priority of the claims against the proceeds of sale
of the vessel shall not be determined until after the expiration of 90
days, or of such other period as the court may specify, beginning with
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the day on which the proceeds of sale are paid into court;
(b) that any party to the action or to any other action in rem against
the vessel or the proceeds of sale thereof may apply to the court in the
action to which he is a party to extend the period specified in the
order;
(c) that within 7 days after the date of payment into court of the
proceeds of sale the sheriff shall send for publication in the Gazette
and such newspaper or publication, if any, as the court may direct, a
notice complying with paragraph (3).
(3) the notice referred to in paragraph (2) (c) must state –
(a) that the vessel (naming her) has been sold by order of the court in
an action in rem, identifying the action;
(b) that the gross proceeds of the sale, specifying the amount thereof,
have been paid into court;
(c) that the order of priority of the claims against the said proceeds
will not be determine until after the expiration of the period
(specifying it) specified in the order for sale; and
(d) that any person with a claim against the vessel or the proceeds of
sale thereof, on which he intends to proceed to judgment should do so
before the expiration of that period.
(4) The Sheriff must lodge in the Registry a copy of each newspaper
or publication in which the notice referred to in paragraph (2) (c)
appeared.
(5) The expenses incurred by the Sheriff in complying with an order
of the court under this Rule shall be included in his expenses relating
to the sale of the vessel.
(6) The court shall determine order priority of the claim to the sale
proceeds on expiration of period of ninety days from the publication
of notice under sub-section (3):
Provided that any party having a claim to the property or the proceeds
of sale thereof may apply to the court before the expiry of period of
ninety days for leave to intervene and prove claims by filing an action
before it or by filing a suit before any other appropriate court before
the expiration of that period.
(7) The court may extend period of ninety days on the application of
any party which has instituted proceedings before any other court as
provided in sub-section (4) or before the court of competent
Page 16 of 21
jurisdiction in India for obtaining a decree against the property or
proceeds of sale and the said court shall not disburse the sale
proceeds or determine priority until thirty days after the disposal of
the said suit or action and any appeal therefrom.
(8) Notwithstanding the provisions contain in sub-section (3) above,
the court may determine priority among the parties and direct
payment out of the sale proceeds on an application by any party
which has obtained a decree or order against the vessel or its property
if the court is of the opinion that the claim of the applicant is entitled
to priority over the claim in respect of which a suit or action has been
instituted.
Provided that the court shall give an opportunity of hearing to all
parties which may have made claims and filed suit or action against
the property or sale proceeds within the specified period of ninety
days or such other period which may be extended by the court before
determining priority and directing disbursement out of the sale
proceeds.
123. (1) The order of claims determining inter se priority in an
admiralty proceeding shall be as follows:-
(a) a claim on any vessel or its property including bunker
where there is a maritime lien and action is proceeded against
ship or its property;
(b) mortgages and charges on a vessel or its property where
an action is proceeded against vessel or its property;
(c) all other claims.
(2) The priority among the claims inter se with respect of
clause (a) of sub-section (1) shall be as follows:-
(a) claims for wages of crew member of the salvaged ship,
and claims for salvage of life, vessel or its property provided that
salvage of life shall take priority over other salvages;
(b) wages and other sums due to the master or members of
crew of the vessel in respect of their employment on the ship;
(c) (i) claims in respect of loss of life or personal injury
having a direct connection with the operation of the vessel or
in and out of his course of employment;
(ii) claims for contribution for general average;
(iii) claims based on tort arising out of physical damage
Order of
priority of
claims.
Page 17 of 21
caused by the operation of the vessel other than loss or
damage to cargo containers and passengers’ effects carried
on the vessel;
(iv) claims out of bottomry;
(d) port, canal and other waterway dues and pilotage dues.
(3) The following principles shall apply in determining the
priority of claims inter se –
a) prior claims shall exclude subsequent ones;
b) if there are more claims than one in any category of priority,
they shall rank pari passu;
c) claims for various salvages shall rank in inverse order of time
when the claims secured thereto accrue;
d) claims for salvage, and wages and claims in the nature of
general average shall take priority over all other claims
mentioned in clause (c) of sub-section (2) notwithstanding the
fact that the claims arose earlier.
143. (1) Each of the following claims against the owner, demise
charterer, manager or operator of the vessel shall be secured by a
maritime lien on the vessel, namely:-
(a) claims for wages and other sums due to the master,
officers and other members of the vessel’s complement in
respect of their employment on the vessel, including costs of
repatriation and social insurance contributions payable on their
behalf;
(b) claims in respect of loss of life or personal injury
occurring, whether on land or on water, in direct connection with
the operation of the vessel;
(c) claims for reward for the salvage of the vessel;
(d) claims for port, canal, and other waterway dues and
pilotage dues;
(e) claims based on tort arising out of physical loss or
damage caused by the operation of the vessel other than loss or
damage to cargo, containers and passengers’ effect carried on the
vessel;
(2) No maritime lien shall attach to a vessel to secure a claim
Maritime lien
Page 18 of 21
which arises out of or results from-
(a) damage in connection with the carriage of oil or other
hazardous or noxious substances by sea for which
compensation is payable to the claimants pursuant to an
international convention providing for strict liability,
compulsory insurance or any other means of securing such
claim;
(b) the radio-active properties or a combination of radio-
active properties with toxic, explosive or other hazardous
properties or nuclear fuel or radio-active products or waste.
(3) The maritime liens set out in sub-section (1) shall be
extinguished after expiry of a period of one year unless, prior to the expiry of such arrest or seizure leading to a forced sale.
(4) The period of one-year referred to in sub-section (3) shall
commence-
(a) in relation to the maritime lien under clause (a) of sub-section (1), upon the claimant’s discharge from the vessel;
(b) in relation to the maritime liens under clauses (b) to (e) of
sub-section (1), when the claims secured thereby arise. and shall not be subject to suspension or interruption:
Provided that time shall not run during the period that the
arrest or seizure of the vessel is not permitted by law.
Explanation.-‘Nothing in this Section shall prevent or bar
any claimant’ from initiating any action in personam where such
claim is not otherwise barred by the Limitation Act 1963.
?
14. (1) In all actions under this Act, the nationality of the vessel
proceeded against shall be stated in the plaint, and if the vessel is a
foreign vessel, notice or institution of the suit shall be given to the
Consulate of the State to which the vessel belongs.
(2) A statement of service of such notice or a statement that
there is no such Consulate in the City, shall be made in the affidavit
in support of any application for arrest of the vessel.
(3) If a notice is served on the Consulate, a copy of the said
notice shall be annexed to the affidavit.
(4) For the purposes this section, it shall be sufficient
service of notice if it is served on a Consul or any other officer in the
Consulate.
Procedure in
respect of
foreign ships.
Page 19 of 21
1545. (1) The Court may, as a condition of arrest of a vessel, or
for permitting an arrest already effected to be maintained, impose
upon the claimant who seeks to arrest or who has procured the arrest
of the vessel an obligation to provide such security and upon such
terms as may determine, for any loss or damage which may be
incurred by the defendant as a result of the arrest, and for which the
claimant may be found liable, including but not restricted to the
following, namely:-
(a) the arrest having been wrongful or unjustified; or
(b) excessive security having been demanded and provided.
(2) Where pursuant to sub-section (1), the security has been
provided, the person providing such security may at any time apply to
the Court to have the security reduced (increased), modified or
cancelled.
Protection of
owner, demise
charterer,
manager or
operator of
ships arrested.
CHAPTER III
PROCEDURE AND APPEALS
5 of 1908.
1656. (1) The provisions of the Code of Civil Procedure, 1908
shall apply in all the proceedings before the court in so far as they are
not inconsistent with or contrary to the provisions of this Act or the
rules made there under.
(2) The admiralty court shall have all the powers of a civil
court in dealing with any application before it and of passing such
interim and other orders as it may consider necessary and appropriate
to protect the interests of the parties before it.
Code of Civil
Procedure to
apply.
5 of 1908
1767. (1) In pursuance of the provisions of section 140 of the
Code of Civil Procedure, 1908, the Central Government shall appoint
and publish in the Official Gazette a list of assessors with such
qualifications or experience in admiralty and maritime matters as may
be prescribed.
(2) The appointment of assessors shall not be construed as a
bar to the examination of expert witnesses by any of the parties in any
admiralty proceeding.
(3) The Central Government may prescribe the qualifications
for assessors, the nature of duties to be performed by them and the
fees to be paid, to them and other ancillary and incidental matters.
Assistance of
assessors.
Page 20 of 21
18. Notwithstanding anything contained in the provisions of any
other law, it shall be open to the High Court in admiralty proceedings
to refer, with the written consent of the parties, the entire dispute
before it or such questions of law or fact raised thereby as the court
may consider necessary, to arbitration and dispose of the dispute or
the questions, as the case may be, in conformity with the award
unless modified by the court for reasons to be recorded in writing.
Reference to
arbitration
19. An appeal shall lie from any judgement, decree or final order
or interim order of a Single Judge of the High Court or any other
court exercising admiralty jurisdiction under this Chapter to a
Division Bench of the High Court.
Appeal.
CHAPTER IV
MISCELLANEOUS
20. (1) The Central Government may, by notification in the
Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of
the foregoing power, the Central Government may regulate by rules,
the practice and procedure of admiralty jurisdiction under this Act
including fees, costs and expenses in such proceedings.
(3) Until rules are made under sub-section (2) by the Central
Government, the existing rules governing the exercise of admiralty
jurisdiction in the High Courts shall be applicable.
(4) Every rule made, or notification issued, under this Act
shall be laid as soon as may be after the rule is made or notification
issued before each House of Parliament, while it is in session for a
total period of thirty days comprised in one session or in two or more
successive sessions and if, before the expiry of the session
immediately following the session or the successive sessions
aforesaid both Houses agree in making any modification in the rule or
notification or both Houses agree that the rule or notification should
not be made or issued, that rule or notification shall thereafter have
effect, only in such modified from or be of no effect, as the case may
be, so however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under
that rule or notification.
Power to make
rules.
12 & 13 Vict.
c.96.
23 & 24 Vict.
c.88.
21. (1) The following enactments are hereby repealed-
(a) the Admiralty Court Act, 1840;
(b) the Admiralty Offences (Colonial) Act, 1849;
(c) the Admiralty Offences Jurisdiction (India) Act, 1860;
Repeal and
savings.
Page 21 of 21
24 & 25 Vict.
c.10.
16 of 1891
(d) the Admiralty Court Act, 1861;
(e) the Colonial Courts of Admiralty Act, 1890
(f) the Colonial Courts of Admiralty (India) Act, 1891
(g) the provisions of Letters Patents, 1865 in so far they
apply to the Admiralty Jurisdiction of the Bombay, Calcutta
and Madras High Courts.
(2) Notwithstanding anything contained in of any other law
for the time being in force, High Courts shall not exercise any
jurisdiction in Admiralty save and except as provided under this Act
and all admiralty jurisdiction hence-before enjoined on the High
Courts are hereby repealed.
(3) Notwithstanding the repeal under sub-section (1) or sub-
section (2)-
(a) anything done or any action taken, under the provision
of the repealed enactments, shall in so far as such thing or
action is not inconsistent with the provisions of this Act, be
deemed to have been done or taken under the corresponding
provisions of the Act as if the said provisions were in force
when such thing was done or such action was taken and shall
continue to be in force accordingly until superseded by
anything done or any action taken under this Act or rules
made thereunder;
(b) any rule, regulation, by-law made or order or notice
issued under the repealed enactments, shall so far as it is not
inconsistent with the provisions of this Act or rules made
thereunder be deemed to have been done or taken under the
corresponding of this Act.
22. (1) If any difficulty arises in giving effect to the provisions
of this Act, the Central Government may, by order published in the
Official Gazette, make such provisions, not inconsistent with the
provisions of this Act as may appear to it to be necessary for
removing the difficulty.
Provided that no such order shall be made after the expiry of a
period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon
as may be after it is made before each House of Parliament.
----------------------------------
Power to
remove
difficulties.