Maritime law

By

Shakshi Goyal

Email: [email protected]

Mobile: +91 7585080313

 INDEX

S.NO CONTENTS PAGE NO.

1 Cover Page 1
2 Index 2
3 Introduction 3
3 Chapter 1- Overview of Aviation Sector 4-5
4 Chapter 2- Governance Structure 5
5 Chapter 3- Regulatory Framework 5
6 Chapter 4- Stakeholders in Aviation Sector and Challenges 6
7 Chapter 5- Dispute Resolution 6
8 Chapter 6- Consumer’s Perspective- Know your Rights 7
9 Chapter 7- Notable Developments and Trends 7
10 Chapter 8- Proposed Investments and project 7-8
11 Chapter 9- Issues facing the Aviation Sector 8
12 Chapter 10- Impact of Covid-19 on Aviation Sector and suggestions to 9
ease the stress on the sector
13 Conclusion 12

INTRODUCTION
 Maritime Law is a set of rules and regulations which govern the matters relating to sea and
ships. It is also known as admiralty law. Numerous legal luminaries have provided their
definition of the term 'maritime law.' Some of them are as follows: Professor Grant Gilmore and
Charles L. Black, in their 'Law of Admiralty', define maritime or Admiralty Law as the
following:

''A corpus of rules, concepts and legal practices governing certain centrally important concerns
of the business of carrying goods and passengers by water.''

Black's Law dictionary defines maritime Law as- "the body of law governing marine commerce
and navigation, the carriage at of persons and property, and marine affairs in general; the rules
governing contract, tort and workers' compensation claims or relating to commerce on or over
water."

The definitions, given above covers wide range of activities concerning the sea, however now
with the evolution of Law, the Maritime Law is comprehensive, and it is that branch of jurisprudence
which covers all the matters relating to sea and ships.

1. Ship Arrest
Ship arrest is a process by in which a ship is prevented from trading or moving until the matter in question is decided.
It is an exclusive jurisdiction that is granted to an admiralty court to detain a vessel to secure a maritime claim.

Article 2 of the International Convention Relating to the Arrest of Sea-Going Ships, 1952 defines the term arrest as
the following:

"(2) "Arrest" means the detention of a ship by judicial process to secure a maritime claim, but does not include the
seizure of a ship in execution or satisfaction of a judgment."

3. Rationality
A ship arrest may be exercised under the authority of a court having admiralty jurisdiction, for the following reasons:

 Loss of life
 Loss of property
 Salvage
 Collision
 Execution of a decree
 Violation of customs, usages, regulations or norms

4.  urisdiction of Indian Courts

Before India gained Independence, under The Colonial Court of Admiralty Act, 1890, the High Court of Bombay,
Madras and Calcutta were the only judicial authorities competent to deal with matters relating to Admiralty. The other
courts of justice were restricted from dealing with issues concerning the Admiralty. Under the Admiralty Courts Act,
1861, the three presidency courts were vested with the same powers as that of the High Court of England.

Section 35 of the Admiralty Courts Act, 1861 deals with the jurisdiction of Admiralty court, and it reads as the
following:

"35. The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in
rem or by proceedings in personam."

The Law relating to Admiralty jurisdiction is relevant even today under Article 372 of the Constitution of India.

Therefore, in M.V. Elisabeth vs Harwan Investment and Trading, 1993 AIR SC 1014, the question was whether a
court having no admiralty jurisdiction could entertain a case relating to Admiralty. The Supreme Court, in this case,
widened the scope of admiralty jurisdiction in India

5. The Court held:

"Although statutes now control the field, much of the admiralty law is rooted in judicial decisions and influenced by the
impact of Civil Law, Common Law, and equity. The ancient maritime codes like the Rhodian Sea Law, the Basilika,
the Assizes of Jerusalem, the Rolls of Oleron, the Laws of Visby, the Hanseatic Code, the Black Book of the British
Admiralty, Consolato del Mare, and others are, apart from statute, some of the sources from which the Law
developed in England. Any attempt to confine Admiralty or maritime Law within the bounds of statutes is not only
unrealistic but incorrect."

The Supreme Court made the following observation:

"The High Court in India are superior courts of record. They have original and appellate jurisdiction. They have
inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary
jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their
powers."

Further, in this case, the International Convention for the unification of some rules regarding Arrest of Sea-going
Ships (The Arrest Convention), 1952 was also made applicable to India, although it was not ratified.

Similarly, In M.V Sea Success case, the Supreme Court held that the principles laid down in 1999 Geneva Arrest
Convention could be applied in India on matters concerning Admiralty.

In India, The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 was enacted on 9 August 2017 to
consolidate the laws relating to Admiralty. The Act implemented, repeals all the outdated provisions relating to
Admiralty.

As per Section 3 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the jurisdiction
concerning admiralty matters shall be vested in the respective High Courts, and the courts shall exercise their
authority within the territorial waters of their jurisdiction.

Therefore, now the scope of admiralty jurisdiction has been widened, and apart from the presidency courts, the
following courts (coastal regions) have jurisdiction to deal with admiralty matters:
  High Court of Gujarat
 High Court of Andhra Pradesh
 High Court of Orissa
 High Court of Kerala

Permissible Claims

The High Courts' as discussed earlier, has the jurisdiction to entertain claims as provided under Article 1 of the Arrest
Convention, 1952 and Article 1 of the Geneva Arrest Convention, 1999. Therefore, before the enactment of the
Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the claims were as provided under the
conventions as discussed earlier. However, now the Law relating to Maritime claim is provided under section 4 of the
Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

11. Procedure
The Law relating to the arrest of a vessel in rem is provided under Section 5 of the Admiralty (Jurisdiction and
Settlement of Maritime Claims) Act, 2017.

Under the section, the High Court may order for the arrest of any vessel within its jurisdiction, where there is a reason
to believe:

 The owner of the vessel is liable for the claim, or

 The demise charterer of the vessel is liable for the claim, or
 The claim is based on a mortgage or similar charge, or
 The claim relates to possession or ownership, or
 The claim is against the owner, demise charterer, manager or operator of the vessel.

Once the claim has been decided, the claimant has to state the detailed facts, along with the other particulars and
must make application for the substantive suit. The Admiralty suit should specify:

 The name of the claimant

 The name of the vessel
 Flag of the Vessel
 Details of the owner of the ship
 Facts relating to the dispute
 Grounds and
 Prayer

Once an arrest warrant is issued upon a vessel, the owner of the vessel has to appear and settle the claim or
challenge the arrest made. The vessel may be allowed to sail subject to furnishing of security for the claim. At the
default of the owner, the ship can be sold, and the sale proceeds may be used to settle the claim.

Therefore, the Law relating to ship arrest is now well settled in India. The admiralty law is an area of development,
and it plays an inevitable role in protecting the citizens as well as ensuring that no organization or individual violates
the Law of the sea.

CONCLUSION

In my opinion, the Act is not gender-neutral but it is definitely not gender biased, as the Act was
passed to mitigate the bias that already existed in the society towards the female gender.
Article 14 of the Indian Constitution allows for reasonable classification on the basis
of intelligible differentia (difference capable of being understood), provided a nexus is established
between the differentia and the object sought to be achieved from such a classification. When it
comes to sexual harassment cases, women are more prone to such critical incidents and the object
is to provide a quick access to justice. Hence, the Act exclusively protects women. A lot of
organizations fail to understand the rationale behind the Act and in order to stand out they end up
publishing a gender-neutral POSH policy that provides protection to the male and LGBTQ
employees as well. Even though it is a very progressive step in itself, it is vital to not overlook the
legal implications of such an approach.

Even though the Act is in force since 2013, the awareness regarding consequences of sexual
harassment and its redressal against the same is limited. The effective implementation of POSH
Act not only requires creating an environment where women can speak up about their grievances