Maritime law constitutes the body of legal principles and regulations governing various aspects of nautical affairs, encompassing issues such as delivery delays, lost packages, cargo damage, ship damages, collisions, accidents, and crew injuries that may arise during maritime transportation. This legal framework pertains to a nation’s jurisdiction over sea-related matters, while public laws concerning these issues fall under the Law of the Sea. Maritime law is a complex amalgamation of national statutes and international treaties.
At its core, maritime law comprises fundamental principles, conventions, and treaties that oversee maritime businesses and related activities, including shipping and offenses occurring on open waters. It encompasses a comprehensive set of laws, rules, and regulations designed to address disputes arising in navigable waters and safeguard the interests of individuals, organizations, and passengers involved in maritime endeavors. This legal domain extends its jurisdiction to a wide array of maritime affairs, including navigation, shipping, marine activities, vessels, sailors, and passenger travel by sea. It is essential to note that maritime laws are generally applicable to open seawater, with distinct regulations governing shipping activities in inland waterways. However, in some jurisdictions, the scope of maritime law may also encompass matters concerning internal waterways.
Background
The term ‘admiralty’ holds a limited jurisdiction, mainly focused on a specific category of maritime matters, following the prescribed procedures found in civil law. Maritime law, on the other hand, encompasses the legal principles and concepts pertaining to the transportation of goods and passengers via water routes. It predominantly addresses private shipping-related concerns and is commonly regarded as a nation’s domestic legislation. Conversely, the Law of the Sea is a facet of public international law governing the behavioral obligations of individual countries within maritime settings. This legal domain is concerned with regulating international maritime activities and conduct.
Historical Context
The movement of goods across national borders, encompassing both imports and exports, stands as an integral component of international commerce. These activities hold a significant historical presence, forming vital components of age-old trade routes. Similarly, regulations and guidelines governing maritime transportation, whether involving commodities or passengers, have been in existence since approximately the 1st millennium BC.
- The Rhodian Sea Laws
The earliest known maritime laws or codes trace their origins to the island of Rhodes, which were notably influenced by Roman legal principles. Referred to as the ‘Rhodian Sea Laws,’ these are regarded as among the most ancient regulations within the realm of maritime law. Although some records suggest an origin dating as far back as 900 B.C., widespread recognition of these laws occurred around 500 to 300 B.C. primarily; the intent behind formulating these laws was to establish a consistent framework for the treatment of merchants and their vessels.
Historical archives indicate that the authority to dictate the terms and conditions of trade predominantly resided with Rhodes. The decline of Greece and the concurrent ascent of the Roman Empire had an impact on the prominence of the Rhodian Sea Laws, although they did not entirely lose their relevance. In instances of conflict between Roman and Rhodian laws, it was observed that the Rhodians often adjudicated the matter. However, the Romans explicitly stipulated that the decisions rendered by the Rhodian laws should not run counter to Roman legal principles.
- Consulate Of the sea
The ‘Regulation of the Sea,’ also known as the ‘Consulate of the Sea,’ is regarded as the oldest among these codes and was compiled in Barcelona. This code encompassed a comprehensive range of maritime matters, including disputes related to vessel ownership, the responsibilities of captains and shipmasters, seamen’s duties, and issues concerning their wages, among others. In earlier historical periods, maritime laws were not codified by territorial sovereigns but rather relied on prevailing customary laws.
The development of standardized maritime laws during earlier times is attributed primarily to regions now falling under the Continental legal tradition. These advancements played a significant role in shaping early admiralty law in England, which forms the foundation of the common law legal tradition. England, renowned for its maritime traditions and shipping industry, drew from these influences to establish a rich legacy in maritime jurisprudence.
History of Maritime laws in India
The maritime legal history of India spans centuries, characterized by a lack of codified laws but a rich tradition of maritime trade . Ancient records highlight extensive merchant and trade activity within and beyond India, leading to the development of regulations to facilitate maritime commerce. Like other nations, India has witnessed the evolution of its maritime laws over time. Initially, British colonial authorities held jurisdiction over maritime legal matters in India.
Components of maritime law
- Maritime lien
A maritime lien is a legal claim in civil law that is considered a privilege in the maritime context. It represents a right against a vessel and can be enforced by seizing specific property related to that vessel. This lien is established in recognition of services rendered to the vessel or in cases of harm caused by it. Importantly, this right exists by law and persists even if the vessel changes ownership. The International Convention on Maritime Liens and Mortgages of 1993, in Article 4, defines maritime liens and lists the types of claims that can lead to the establishment of such liens, which can be made against various parties involved with the vessel, including the owner, demise charterer, manager, or operator. It’s not necessary for the claimant to register the maritime lien.
Maritime liens can arise not only from maritime torts, such as negligent collisions or personal injuries, but also from breaches of maritime contracts, contributions to general averages, and salvage services. In the case of Bank One Louisiana N.A. v. M/V Mr. Dean (2002)[1], the court addressed when a maritime lien arises for a breach of charter. The court emphasized that a maritime lien is the foundation of an in rem proceeding, a process that confirms a right existing from the moment the lien attaches. Consequently, the court ruled that a maritime lien attaches from the outset of a charter.
Different concepts under maritime law
- Ship registration
Ship registration is a formal process that involves documenting a ship’s nationality. This procedure is essential to establish the ship’s identity in terms of nationality and to regulate maritime activities. Ship registration effectively associates a specific vessel with a particular state, granting that state the authority to safeguard the ship’s interests under international legal norms. In summary, ship registration is the means by which a ship’s nationality is recorded, enabling a state to protect the vessel’s rights within the framework of international law.
- Flag state
The term “flag state” refers to the nation where a ship is officially registered. The flag state holds full regulatory authority over the vessel. Moreover, for countries that have ratified international agreements, it is a requirement for the flag state to conduct regular inspections of the ships and issue certifications for both the vessels and their crew members.
- Ship arrest
The concept of “ship arrest” pertains to a legal process within the admiralty procedure of civil law, involving the issuance of a warrant to detain a ship. Maritime law includes a provision that allows for the temporary restriction of a ship’s movement or its use in trade until the relevant court issues further instructions. In essence, ship arrest is a legal procedure used in admiralty law to temporarily immobilize a vessel until the court issues further directives.
- Recreational boating
A “recreational boat” refers to any type of watercraft, including lifeboats, transient boats, liveaboard boats, and others, used or capable of being used for transportation. The recreational boating industry experiences a significant number of annual casualties and injuries. It’s crucial to emphasize that these vessels are typically for personal, non-commercial use. However, the regulations applicable to commercial boats also apply to non-commercial ones.
- Transit passage rights
Transit passage, in maritime law, grants vessels and aircraft the unrestricted freedom to navigate or fly through a strait, facilitating seamless and efficient transit from one section of high seas or exclusive economic zones to another.
- Protection of the marine environment
Pollution in oceans has been a longstanding issue, prompting international communities to establish regulations. United Nations Conventions, such as the International Convention for the Prevention of Pollution from Ships, set guidelines. These conventions impose responsibilities on signatory nations to safeguard and conserve marine environments. Maritime laws encompass provisions for marine environment protection. The United Nations Convention on the Law of the Sea (UNCLOS 1982) is a pivotal treaty, mandating nations to collaborate in safeguarding marine environments.
The Law of the Sea is guided by three core principles:
1. Principle of Freedom: Since the early days of maritime law, the notion of sea freedom has existed, whether explicitly or implicitly. It signifies that nations have limited national rights and jurisdiction over the oceans. This concept of freedom, initially introduced by the Queen of England, aims to ensure unrestricted use of the ocean, allowing for activities like navigation, overflight, and the laying of submarine cables and pipelines.
2. Principle of Sovereignty: The concept of sovereignty in maritime laws was established to protect the interests of coastal states. It asserts that states can exercise specific jurisdiction and exclusive rights in offshore areas and certain maritime zones. When a nation controls and possesses exclusive rights over a part of the sea, that portion is considered the territory of that nation. In essence, the principle of sovereignty governs territorial jurisdiction beyond a coastal state’s borders.
3. The Common Heritage of Mankind: This principle emerged as a counterpoint to the principle of sovereignty and challenged traditional concepts of maritime law. It posits that the sea is a shared resource belonging to all of humanity. It emphasizes that mankind collectively holds a stake in the laws governing the sea, thus integrating individuals into the framework of the Law of the Sea.
Maritime law in India
India has a rich history of maritime trade both domestically and internationally, with numerous laws and regulations governing this sector. Before independence, the British enacted several laws like the Inland Steam Vessels Act, Coasting Vessels Act, Indian Ports Act, Merchant Shipping Act, and others to ensure safe and efficient maritime trading. Although many of these laws are no longer in effect, they have influenced the current maritime legal framework.
Pre-independence, admiralty jurisdiction was vested in the courts of Madras, Bombay, and Calcutta. In the case of M.V. Elisabeth And Ors v. Harwan Investment And Trading (1993), it was established that High Courts in India have supremacy in maritime matters, holding unrestricted jurisdiction.
India introduced the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, as the national legislation governing maritime affairs. The Law Commission’s 151st Report recommended amendments to maritime laws, leading to the introduction of the Admiralty Bill in 2005, which later passed as the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, coming into force in April 2018.
This Act repealed the Admiralty Courts Act of 1861, the Colonial Courts of Admiralty Act of 1890, and relevant provisions of the Letters Patent Act of 1861. It applies retrospectively to all pending adjudications related to admiralty matters. The Act empowers specific High Courts, including Karnataka, Gujarat, Orissa, Kerala, and Hyderabad (for Telangana and Andhra Pradesh), or any other High Court designated by the Central Government, to handle maritime claims.
Scope
The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, seeks to unify and streamline existing laws pertaining to admiralty jurisdiction in courts, legal proceedings related to maritime claims, ship arrests, detentions, sales, and associated matters. The Act’s title clearly reflects its purpose, which is to consolidate and regulate various legal aspects concerning vessels and maritime activities.
Application
The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, is applicable to all vessel owners, regardless of their domicile, with exceptions. It does not apply to vessels under construction or those not yet launched. Additionally, it excludes warships, naval auxiliaries, government-owned vessels, and foreign ships used for non-commercial purposes as per government notifications.
Section 4 of the Act outlines matters falling under the jurisdiction of maritime claims against any vessel, while Section 5 enables in rem proceedings against the vessel itself, treating it as the wrongdoer. This section empowers the High Court to arrest the ship within its jurisdiction and requires parties to provide security against maritime claims.
Landmark judgments
M.V. Elisabeth And Ors vs. Harwan Investment And Trading (1993)[2]
In this case involving the appellant, M.V. Elisabeth, the vessel was left in Marmagao, India, without the necessary bills of lading and documentation for its cargo, resulting in a misdelivery against the respondent’s instructions. Subsequently, the respondent initiated an in rem legal action in the High Court of Andhra Pradesh, leading to the arrest of the vessel at Visakhapatnam Port. A dispute arose when the appellant contested the jurisdiction of the Andhra Pradesh High Court over the foreign vessel. This dispute culminated in an appeal before the Supreme Court.
The central issues centered around whether Indian High Courts could exercise admiralty jurisdiction over a foreign ship when its owner had no residence or business interests in India and whether Indian High Courts had the authority to arrest a vessel once it entered Indian waters for legal proceedings. The Supreme Court, in its judgment, dismissed the appeal and upheld the jurisdiction of the trial court, directing the case back to the High Court. It clarified that the Andhra Pradesh High Court did possess admiralty jurisdiction concerning cargo movements to and from India, justifying the arrest of the ship at Visakhapatnam Port within its territorial jurisdiction.
British India Steam Navigation Co Ltd vs. Shanmughavilas Cashew Industries (1990)[3]
In this notable case, the Supreme Court firmly established that the jurisdiction of Indian Courts is applicable within territorial waters. The court emphasized that the Indian Parliament lacks the authority to enact legislation concerning foreign vessels and foreigners on the high seas. It was decisively ruled that no Indian statute can curtail the rights or impose responsibilities on a foreign vessel or foreign individuals until the said foreign vessel enters Indian territorial waters, thus subjecting itself to Indian territorial jurisdiction..
Owners And Parties Interested In The Vessel M.V. Polaris Galaxy vs. Banque Cantonale De Geneve (2022)[4]
In this case, the Commercial Appellate Division of the High Court of Madras ruled in favor of the respondent in an admiralty suit. The appellant, Galaxy Marine Service Ltd., owned a registered ship that had entered into a charter party with Profitable Wealth Inc. (PW), managed by Wirana Shipping Corp Pte Ltd, a Singaporean company. PW sub-chartered the vessel to Gulf Petroleum for transporting marine oil, and Gulf Petroleum had a contract with Indian Oil Corporation for loading and unloading.
Seeking financing, Gulf Petroleum turned to the respondent, Banque Cantole De Geneve, which honored the indemnity credit and paid Indian Oil Corporation. Later, fraudulent activities by GP prompted the respondent to request the ship’s owner not to discharge the vessel, but it had already been discharged. The respondent filed a misdelivery claim in the Madras High Court’s Commercial Division, leading to the ship’s arrest and a summary judgment. While security was provided and the vessel released, the court required GP to be included as a necessary party to the suit.
The central issue was whether an appeal could be made to the Commercial Appellate Division of the High Court against an order by the Single Bench Commercial Division of the same High Court, specifically regarding the addition of a party in an Admiralty Suit. The Supreme Court dismissed the appeal, ruling that an appeal to the Division Bench of the Commercial Appellate Division was not permissible against an order issued by the Single Bench Commercial Division of the same High Court.
Research Foundation for Science vs. The Union of India[5]
In this particular legal case, the court made a significant ruling in response to the growing issue of numerous foreign ships entering India solely for the purpose of shipbreaking, a practice that posed substantial health hazards. Consequently, the court issued a mandate directing not only the state government but also other pertinent authorities, including the state Maritime Board, to establish and enforce regulations governing the admission of ships into India when their primary intent is shipbreaking. This landmark decision aimed to address the environmental and health concerns associated with such activities and ensure their proper management and oversight.
Conclusion
Maritime laws play a pivotal role in a nation’s economic development, particularly in the context of India’s growing maritime trade sector. As this sector continues to expand, it becomes increasingly crucial for India to establish comprehensive regulations regarding vessel seaworthiness. These regulations are essential for enabling smooth import and export activities through sea routes and bolstering India’s position as a regional and global maritime trade hub, ultimately contributing to economic growth.
Additionally, addressing the challenge of foreign shipbreaking within India is of paramount importance. Stringent regulations covering safety, environmental protection, and labor conditions must be implemented to ensure the sustainability of the shipbreaking industry while upholding environmental commitments and worker well-being.
In summary, maritime law is a dynamic field that plays a vital role in India’s economic development. By enacting and enforcing regulations related to vessel seaworthiness and foreign shipbreaking, India can fully harness the potential of its maritime sector, leading to economic growth and environmental sustainability.
[1] Bank One Louisiana N.A. v. M/V Mr. Dean (2002), United States Court of Appeals for the Fifth Circuit, 293 F.3d 830, 831 (5th Cir. 2002)
[2] M.V. Elisabeth And Ors vs. Harwan Investment And Trading,1993,Supreme Court of India, AIR 1993 SC 1014
[3] British India Steam Navigation Co Ltd vs. Shanmughavilas Cashew Industries ,1990,Supreme Court of India, 3 SCC 481
[4] M.V. Polaris Galaxy vs. Banque Cantonale De Geneve ,2022,Supreme Court of India.2022 LiveLaw (SC)793
[5] Research Foundation for Science vs. The Union of India,2005,Supreme Court of India, (2005) 10 SCC 510
Author: Bibisarah Shaikh
Juris Centre 