This article is written by Diksha Paliwal, a practising advocate at the High Court of Indore and a student of LLM (Constitutional Law). The article gives a brief concept of maritime law, followed by a discussion about its history and evolution. The article further sheds light on critical international regulations in the field of maritime law and noteworthy concepts of maritime law in India.
This article has been published by Sneha Mahawar.
Table of Contents
Maritime law is the branch of law that contains a set of rules and regulations relating to nautical matters. ‘Maritime’ or ‘Admiralty’ laws are the rules and regulations that govern the disputes that arise while working on the sea. These laws govern nautical matters or any other incidences happening in open water.
The evolution of maritime law dates back hundreds of years. During those times trade between nations was widely done through sea transport. Gradually, it became a crucial branch of law. Furthermore, expanding the scope of this field of law became increasingly necessary to protect arbitrary claims by countries over the sea, which is otherwise a common resource for all of mankind.
The scope of maritime laws is very broad and includes a wide spectrum of matters. The article talks about the history and evolution of maritime laws. It further discusses important aspects of maritime law, along with several important conventions of International maritime laws. The later part of the article discusses maritime laws in the Indian context, historical development, evolution, and current maritime laws.
What is maritime law
In common parlance, maritime law is the body of laws that regulate nautical matters such as matters pertaining to delivery delays, lost packages, cargo damage, and other disputes that may arise while shipping like damages to the ship, collision, accidents, and injury to the crew. Maritime laws deal with a country’s laws that regulate matters of the sea, whereas, public laws relating to the same matters come under the purview of the Law of Sea. These laws are a complex structure of various national laws and treaties of an international nature. These maritime laws have evolved drastically with the changing times.
It is the fundamental principles, laws, conventions, and treaties that administer maritime businesses and other nautical matters like shipping or offences occurring on open water. It consists of laws, rules, and regulations to handle the disputes that arise in navigable waters and protect the persons or organisations who work on navigable waters, as well as passengers aboard vessels.
Maritime laws are greatly influenced by international customs and practices, which is very obvious due to the subject matter and field of this law. These laws deal with a wide range of affairs and activities of the sea along with matters of navigable waters, including navigation, shipping, other marine affairs, ships, sailors, travelling of passengers through the sea, etc. Ordinarily, these laws are regulated by national legislation, but they are shaped by international influences, especially international conventions and treaties. The rationale behind this, as stated above, is that shipping and other such activities are bound to involve international relations.
Generally speaking, maritime laws apply to seawater only. The shipping activities carried out in interior waterways are regulated by other laws and rules. However, there are certain countries where the scope of maritime law also includes the matter of internal waterways. For instance, in Scandinavian countries, these laws also apply to shipping activities that have taken place in all the water bodies, be they lakes, rivers, or canals.
Difference between admiralty, maritime laws and law of the sea
Although the two terms ‘admiralty law’ and ‘maritime law’ are used interchangeably, they both differ from each other significantly.
The word ‘admiralty’ has limited jurisdiction over a narrow class of maritime matters, as per the procedure laid down in civil law. Admiralty pertains to rem and admiralty law is restricted to the law that is administered in courts. To put it simply, it encapsulates the matters of torts and contracts of the high seas. The latter term, i.e., ‘maritime’ exercises jurisdiction over all the issues arising on water or relating to the traffic of sea. This has a wider scope than admiralty.
Maritime law means the legal rules and concepts relating to the business of carrying goods and passengers by water. On the contrary, admiralty law is considered a branch of jurisprudence that pertains to maritime matters of civil and criminal nature. Also, it envisages a court or a tribunal administering maritime law through its separate and peculiar procedures.
Maritime law deals with private shipping issues and is generally referred to as the national legislation of the country, whereas the law of the sea is a branch of public international law. The law of the sea governs how individual countries are obligated to behave in maritime environments. The law of the sea is related to maritime movement and conduct, which is applicable internationally. Thus, these laws are a matter of international affairs.
History and evolution of maritime laws
The present-time maritime laws are naturally the product of an outgrowth of the evolution in this branch. The continuous commercial dealings between the nations that were actively involved in the navigation of seas are one of the reasons behind this evolution. The history of these laws dates back almost three thousand years. Let’s get a proper understanding of the history and evolution of maritime laws.
Transportation of goods between countries, i.e., import and export, is an inseparable part of international trade. These activities constitute a crucial part of ancient trade channels. Similarly, rules and regulations governing these sea transport activities, be they of goods or passengers, have been in existence since around the 1st millennium BC.
The Rhodian Sea Laws
Back in the early days, the Egyptians, Phoenicians, and Greeks were the ones who were most actively involved in trading, in the Mediterranean Sea, and thus, most ancient maritime customs are said to be derived from their customs. The earliest laws or codes about maritime go back to the island of Rhodes, which were in turn influenced by Roman law. The ‘Rhodian Sea Laws’ are claimed to be the oldest laws in the field of maritime. Several records claim that these laws date back to 900 B.C. However, these came to be widely recognised around the period of 500 to 300 B.C. Primarily, these laws were formulated to provide predictable treatment to merchants and their vessels. As per the excerpts found in the ancient archives, the power to dictate the terms and conditions of trade vested majorly in the hands of Rhodes.
The decline of Greece and the simultaneous rise of the Roman Empire were said to have affected the influence of the Rhodian Sea Laws, yet it cannot be said that these laws completely lost their popularity. These laws were predominantly in existence in the Mediterranean Sea for almost one thousand years, although slight changes were witnessed after the rise of the Roman Empire. In the case of contradiction between the Romans and Rhodian laws, it was observed that the Rhodians used to decide the matter. However, the Romans made it crystal clear that the decision made by the Rhodian laws must not be in contravention of the Roman laws.
Interference of the Romans
The Rhodian laws were later on levelled up by the Romans, to meet the changing scenario. A great enlargement was witnessed in the customary maritime laws, where the Romans extended the applicability of Roman laws and principles to the existing Rhodian laws. The main enhancement was in the revival of trade and commerce pursuant to the growth of Italian Republics and cities along the Rhine and the Baltic Sea. Special tribunals were also set up in the Mediterranean port to resolve the disputes arising among the seafarers. This was a major development in the branch of maritime law, since after this the judgments given by the tribunals were recorded, which in turn led to the codification of various customary rules. The three important codes that were found in Roman law were the ‘Consolato del Mare’ of Barcelona (cities of the Mediterranean), the ‘Laws of Oleron’ (France and England), and the ‘Laws of Wisby’ (free cities of the Hanseatic League on the Baltic). Parts of these were later formulated into European laws.
Consulate Of the sea
Among the above three mentioned codes, the ‘Consolato del Mare’ often referred to as ‘Regulation of the Sea’ or the ‘Consulate of the Sea’, is said to be the oldest of these codes, and was prepared in Barcelona. This code was said to be a compilation of almost all the matters pertaining to maritime. Some of these subject matters are disputes regarding ownership of vessels, duties of captains and masters, the duties of seamen, and matters relating to their wages, etc. In earlier times the maritime laws were not formulated by the territorial sovereigns rather it was the customary laws prevailing at the time. It was only after the rise of modern nations, that the territorial sovereigns started formulating maritime laws.
Early European codes
Over time, trade commerce in the Mediterranean region expanded northward and westward, which led to the development of sea codes in the northern European ports. The most recognised and important medieval sea codes among these were – the ‘Laws of Wisby’ (a Baltic port), the ‘Laws of Hansa Towns’ (a Germanic league), and the ‘Laws of Oleron’ (a French island). The oldest code, i.e., the ‘Consolato del Mare’ is said to be the inspirational code, which helped in the making of these above-mentioned codes. These three codes are often termed the ‘three arches’ based on which future maritime laws and regulations were developed. After the ‘Consolato del Mare’, the ‘Laws of Oleron’ are said to be the second most important laws in the regime of maritime laws.
The most standardised laws of maritime in the earlier period are said to have been developed in the areas belonging to what is now known as the Continental legal tradition. These developments proved to be a major part of the formulation of the early admiralty law of England, which is the origin of the common law legal tradition and is also one of the richest maritime states with rich traditions in shipping.
It is important to note that the admiralty doctrines of Europe were carried to the USA, which is also an active shipping nation. These doctrines were carried to the USA through the English admiralty law, which was in turn influenced by the ‘three arches’ of sea codes.
Evolution of maritime laws
In the early time, maritime laws were mainly found to be uniform. The reason is that these laws needed to be like the ones which benefit the whole community, and not just a few individuals carrying out naval activities. This uniformity in laws also proved to be a hindrance to the growth of nationalism concerning the sea. Uniformity in the laws in the field of maritime eliminated problems related to unpredictability and conflict of laws. This idea of maintaining uniformity was first instigated by the combined efforts of lawyers and commercial men, who founded the Comite Maritime International (CMI) and the National Maritime Law Associations. This concept continues to grow under the aegis of the Intergovernmental Maritime Organisation (IMO) and other United Nations-affiliated organisations.
The International Maritime Committee (CMI) was founded in the year 1897, with the view of maintaining uniformity in the national legislation pertaining to maritime matters. The Hague Rules (International Convention on Bill of Lading), the Visby Amendments (amending the Hague Rules), and the Salvage Convention are some of the conventions drafted by the CMI. The International Maritime Organisation of United Nations Organisations (UNO) has now taken over many of the functions of CMI.
Even the IMO supports the existence of uniformity in maritime laws to avoid conflicts among various jurisdictions. Many countries have incorporated the views of IMO in their national legislation by adhering to the principles formulated by it. However, a lot is yet to be achieved; the countries have still not attained the desired uniformity in maritime laws.
The present maritime laws are the product of numerous ancient doctrines along with the new laws, both national as well as international. Marine insurance, general average, salvage, the welfare of seamen, and the ancient concept of ‘maintenance and cure’. These are some early concepts of maritime that are still in existence, and someway or the other a part of current maritime laws. The consistent nature of the basic dangers of seafaring is the prime reason behind the continuous use of some principles. However, other marine activities like naval architecture, cargo handling, and many more have changed significantly. Hence, the ancient laws needed to be changed as per the evolving scenario; this is the reason that the current laws are a unique blend of the ancient principles as well as the new laws. Some ancient laws were abolished and some remain intact.
History of Maritime laws in India
The history of maritime laws in India goes back to more than hundreds of years. Though we did not have a codified maritime law, due to a rich marine history of trading in and outside India, there existed some rules and regulations to govern maritime matters. It is evident from several historical documents that a large number of merchants and traders came to India in the early times to carry on trade in numerous fields. Thus, several laws, rules, and regulations were enacted for the smooth functioning of marine trading. Just like the other countries, maritime law in India has also witnessed a fair amount of development in recent years. In the early time, the jurisdiction of maritime laws in India vested with the Britishers.
Components of maritime law
Maritime laws are regarded as a complete system of law, which includes both public and private matters, substantive and procedural laws, national and international legislations, and having its own courts and jurisdictions.
A maritime lien is one of the most crucial aspects of maritime laws. A maritime lien is considered a maritime privilege in civil law. It is one of the finest and most noticeable peculiarities of maritime laws. A maritime lien is a claim against a vessel that can be imposed or executed through the seizure of a particular thing or relevant property. This provision was brought into existence to provide credit to the ships freely, and simultaneously ensure that the ship owners do not escape their debts without making the payment as a way of furnishing security. The maritime lien provides a right to property in deference to services offered to it or in case of any injury caused by the property. This right exists as a matter of law, irrespective of any change in ownership. To avail of this claim, retaining the possession of the vessel by the creditor is not a requisite condition.
A maritime lien is often called the ‘barnacle’ attached to a ship’s hull, because a maritime lien concerning a particular ship, travels with that ship, even if there has been a change in ownership.
The International Convention on Maritime Liens and Mortgages 1993, in Article 4, defines the concept of a maritime lien, which enumerates the list of claims that could be enforced to secure a maritime lien on the vessel. It can be made against the owner, demise charterer, manager or operator of the vessel. This lien provides the right to a person to necessitate the sale of a ship, which is done to propitiate the debt owed to him/her on account of such a vessel. A delay in the enforcement of maritime lien would result in losing the privilege of claiming the right. It is also important to note here that a complete obliteration of a vessel will result in extinguishing the right of a maritime lien. Also, there is no such necessary condition that the claimant should register the maritime lien.
The right of maritime lien not only arises on the commission of a maritime tort, like, negligent collision or personal injury, but it also arises in the case of infringement of maritime contracts, general average contributions, and salvage services.
Some important judgments
Let’s discuss some judgments of different international courts as well as Indian courts to understand the concept of a maritime lien.
The High Court of the Solomon Islands, in the case of Wahono v. The Ship MV Yung Yu No 606 (2001), held that in common law, the claims pertaining to maritime lien can also attach to freight or cargo, which in turn includes the catch of fishing vessels as well.
In the case of Maruwa Shokai (Guam) Inc v. Pyung Hwa 31 and ors. (1993), the Supreme Court of the Federated States of Micronesia held that the claim in respect of maritime lien includes transhipment costs as well, as ‘necessaries’. To clarify this concept the Court went on to say that the term ‘necessaries’ includes ‘things reasonably needed in the business of vessels or ships.’
In the case of the State of Goa v. Sale Proceeds of the Vessel MT Pratibha Bheema (2018), a vessel was anchored at the Panaji Port. It was, later on, found that the vessel developed a technical snag. Due to the bad weather conditions, the plaintiff, i.e., the State of Goa, towed the vessel to Mormugao Port. In the meantime, the vessel was sold while it was anchored to the port. It is to be noted that at the time of sale, the vessel was in an area controlled by the plaintiff. Owing to this fact, the plaintiff demanded some charges from the sale proceeds. The issue before the court was to determine whether the claim made by the plaintiff was secured by a maritime lien. The Court had to determine whether this claim comes under the purview of Article 1(l) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships, 1952 and Article 1(n) of the International Convention on the Arrest of Ships, 1999. The Court held that being a signatory to the conventions mentioned above, the plaintiff’s claim falls under the category of a maritime lien.
In the case of Bank One Louisiana N.A. v. M/V Mr Dean (2002), the Court dealt with the issue that when a maritime lien for breach of charter arises. The court stated that a maritime lien is the basis of the proceeding in rem. It is a process to perfect a right, which is elementary from the moment the lien attaches. The court thus held that a maritime lien attaches at the beginning of a charter.
Shipping charters are the contracts governing this transportation of goods by ships carried out either by the charter parties or by bills of lading.
Types of shipping charters
The term ‘charter party’ mainly contains three crucial types of contracts about the use of vessels owned and controlled by others. These three charters are demise charter, time charter and voyage.
In a ‘demise’ charter, also known as a ‘bareboat’ charter, the possession of the vessel is handed over to the charterer by the ship owner, who in turn performs the rest of the activities. The charterer, after the delivery of possession, employs the crew and manages them, arranges the necessary repairs and supplies, and all the other general functions, just like the ship owner would have carried out.
The second category of the charter is the ‘time’ charter. Under this charter, a crew and a master are employed by the shipowner, and the charterer is only authorised to direct the movements of vessels. Herein, the charterer is also authorised to determine the cargoes to be carried out during the charterer period. The charterer under this charter has very limited authority.
The third category of the charter is the ‘voyage’ charter. It is a contract of carriage or affreightment. Under this charter, it is a customary norm that the master or his agent issue a bill of lading to the shipper, and the voyage charter remains a governing contract of carriage. The bills of lading only serve the purpose of receipt and a document of title to the goods. Ordinarily, the voyage charters deal with the carriage of full cargoes on one or a series of voyages. However, in certain cases, the charterer is only allowed to use a particular portion of the carrying capacity of a vessel. In such exceptional cases, the contract is termed a ‘space’ charter.
Limitation of liability
A very distinctive feature provided under the maritime laws is the option where the ship owners or certain other persons have the choice of limiting their liability, in some exceptional cases of tort and contract claims.
In some countries, the extent of the limit is decided based on the value of the vessel and the earnings of the voyage where it met with the casualty. However, claims for personal injury and wrongful death are excluded from this method of deciding the limitation. On the contrary, some countries have ratified the Brussels limitation of liability convention of 1957 or where new domestic legislation has been enacted, the limit is set as £28, or its equivalent, and this limit is in turn multiplied by the adjusted net tonnage of the vessel, irrespective of the actual value of the vessel. The necessary condition for availing of this privilege must be free from privity or knowledge. Simply put, the person asserting this must be free from any actual fault or privity. The term ‘actual fault’ connotes that the person who is availing the privilege of this principle is entitled to limit his liability, only up to an extent of his crew’s negligence, i.e., the shipowner should not be negligent on his part.
The shipowner will be set free from liability up to an extent, where negligence has been done on the part of the master or crew. The shipowner cannot be released from liability if the casualty has been caused because of his own negligence or that of his managerial personnel.
The responsibility for collision damage under maritime law is based on the foundation of the fault principle. It states that a colliding vessel will not be held accountable for damaging another ship or any fixed object like a bridge, wharf, etc. unless the reason behind the collision was insufficiency or deficiency in the colliding vessel. It will also be held accountable if there has been negligence or a willful act on the part of the navigators. Ordinarily, the onus of proof lies with the moving vessel.
Under the purview of the doctrine of salvage, the aliens to the maritime ventures who save the maritime property from any casualty from the dangers of open water, are entitled to be provided with an award. This is to acknowledge their efforts and thereby entitle them to a maritime lien on the rescued property. Several factors are taken into account while considering or fixing the amount that is to be given to the person who salvaged the property. Some of these factors are; efforts put in by the rescuer, skills and energy displayed, the value of the vessel, cargo or any other property salvaged, the risks that the salvager faced while rescuing, the degree of danger, etc.
Under the doctrine of general average, the term ‘average’ connotes a loss sustained by a vessel or its cargo. In a situation where one part of a maritime venture is sacrificed to save the other segments, the average in such cases is termed as ‘general.’ This doctrine is still widely accepted. However, some instances were recorded when demands were made to abolish it.
Marine insurance is an essential feature offered by maritime laws. In layman’s language, marine insurance encapsulates all the damages caused to the goods during transit. The insurance policy extends to exposed goods kept offshore or onshore, marine liability, hull, or casualty. It is very essential for the import or export trade proceedings. The oldest form of insurance is marine insurance.
Different concepts under maritime law
Ship registration is a procedure that lays out the documentation of a ship’s nationality. Registration of a ship is done to establish a ship’s nationality and further govern shipping. It links the particular ship to a state, and by doing so, a state gets the right to protect that ship in the eyes of international law.
Once a ship gets its nationality documented, it allows the ship to travel internationally wherever the citizens of that particular nation want to travel. Every ship must be registered in a particular country. A ship follows the laws of the country where it is registered.
A ‘flag state’ is the term given to the country in which the ship is registered. The flag state of the ship has complete regulatory control over the vessel. Also, for countries that are a signatory to international agreements, it becomes necessary that the flag state inspects the vessels regularly and gives certification to the ships and their crew members. The flag state also issues certificates regarding safety and environmental protection. The ‘registry’ is the organisation authorised to register the ships and certifies the ship for compliance. The nature of the registry, i.e., private, governmental, or a hybrid of two depends on the national legislation of the country. In some cases, the government authorises the third agency to carry out the process of registration of the ships.
The term ‘ship arrest’ is associated with the admiralty procedure of civil law, in which a warrant of arrest is imposed on the ship. In maritime law, there is a provision that provides for restraining the movement of a ship or trading via a ship, till the time further directions are issued by the concerned court. This is a process where the vessel or ship is detained by following a judicial procedure to secure a judicial claim. However, it is important to note that this ship arrest does not order the seizure of a ship in execution or gratification of a judgment.
A warrant of arrest for a ship can be done for several reasons. The authority delegated to do this work can arrest the ship after complying with the legal procedure laid down by maritime law. This warrant includes an investigation of the ship as well. The investigation for a ship can be done from crimes and other instances like collisions, salvage, loss of Life, personal injury, loss of property, violation of customs, regulations, road norms, health norms or safety regulations, and execution of a decree.
The term ‘recreational boat’ means a ship or boat of every description that is used or is capable of being used for transportation, including lifeboats, transient boats, liveaboard boats and any other types of boats. The industry involved in recreational boating witnesses hundreds and thousands of casualties and injuries every year. It is important to note that these ships are ordinarily used for noncommercial purposes. However, the same rules that apply to commercial boats apply to non-commercial boats as well. In cases of infringements of navigation rules or maritime laws by these non-commercial boaters, they have to face legal consequences as enumerated in the concerned maritime laws. Collisions, allusions, and grounding at speed are some common incidents that may have a disastrous effect on those who are aboard these ships.
These incidents are governed by maritime laws, apart from certain exceptions known as ‘seasoned maritime incidents.’ The injury claim in these cases is subject to comparative fault, which means that the fault is assigned to all the parties involved. For example, in cases of pleasure craft collisions, all the operators and vessels are said to be involved. However, to prove the non-involvement, the party needs to gather supporting evidence in the early stages. Some common mistakes that recreational boaters witness are; failing to yield to traffic, improperly overtaking other vessels, blind turn issues, speeding, throwing excessive wake, inadequate navigational lights, docking accidents, and lack of training.
Transit passage rights
Transit passage is a concept in the law of the sea that provides for the free movement of a vessel or aircraft, thereby providing them with the freedom of navigation or overflight to follow a smooth, continuous and expeditious transit of a strait between one part of high seas or exclusive economic zones to another.
However, there exists an exception to this right of transit passage, which states that when the strait is formed between an island of a state bordering the strait and its mainland, and if there exists a seaward of the island, the right of transit in such cases shall not apply.
Every military and commercial ship possesses an unhindered right of transit passage through channels that are used for international navigation in a normal mode of operation without adjoining notices or consent of states. The term ‘normal mode of operation’ in relation to surface ships and submarines means that the surface ship may move in a manner consistent with vessel security and the submarines may transit submerged. The adjoining states shall not suspend the vessel for any unnecessary reason including military exercises. Also, the states must not adopt such laws or regulations that hinder or hamper the right of transit passage.
Protection of the marine environment
Pollution in the sea bodies has been an issue for the past several decades, owing to which the international communities have formulated various rules and regulations to deal with this problem. Various treaties and conventions have been enumerated by international communities and organisations to curb the issue of the marine population. Even the United Nations Conventions have formulated certain norms and rules in the law of the Sea like the International Convention for the Prevention of Pollution from Ships, etc for the same. It lays down duties and obligations on the signatory countries to protect and preserve the marine environment. Maritime laws consist of several provisions that provide for the protection of the marine environment. The United Nations Convention on the Law of the Sea (UNCLOS 1982) is one of the most important treaties in the field of marine laws which includes laws for the protection of the environment along with placing an obligation on all nations to work in the field of protection of the marine environment.
International maritime law
The laws that govern international waters are known as international maritime law. It consists of several treaties, conventions, and a body of laws that are made to regulate maritime organisations and nautical issues. International maritime law regulates matters concerning the process of carrying goods through sea, protection and maintenance of vessels, registration of ships, marine insurance, damage to ships, etc.
Fundamental principles governing the Law of the Sea
The Law of the Sea is a branch of international public law governing the matters of the sea, thereby maintaining peace and public order in the open waters. Let’s discuss the fundamental principles concerning this branch of international law.
The three fundamental principles governing the Law of the Sea are:
Principle of freedom
Since the inception of the laws concerning the sea, the concept of freedom of the sea has been in existence, be it expressed or implied. It mainly connotes that a country has limited national rights and jurisdiction over an ocean. The concept of freedom in utilising the sea was first incorporated by the Queen of England. The motive behind the principle of freedom is to ensure free use of the ocean, thus granting freedom of various activities like navigation, overflight, laying submarine cables and pipelines, etc.
Principle of sovereignty
The concept of sovereignty in sea laws was enumerated to safeguard coastal states’ interests. It provides that the states into offshore spaces and some maritime zones can exercise a certain amount of special jurisdiction and some exclusive rights. The parts of the sea over which a nation has control and possesses certain exclusive rights and jurisdiction, then that part of the sea falls under the territory of that nation. Put simply, the principle of sovereignty provides for territorial jurisdiction overseas concerning a coastal state.
The common heritage of mankind
This principle of the common heritage of mankind emerged as a converse of the principle of sovereignty. This principle marked its presence against the traditional concepts of the Law of the Sea. This principle considers mankind as a whole and states that the sea belongs to none. It is based on the notion that man is the pivotal actor in the laws concerning the sea, thus, bringing individuals into the concept of the Law of the Sea.
International conventions on maritime law
In order to establish maritime laws and ensure better enforcement and regulation of these laws, the United Nations (UN) established an organisation titled ‘International Maritime Organisation’. The organisation was formed by the UN as a specialised agency that has been conferred with the responsibility for managing the safety and security of shipping, along with preventing marine pollution that is caused by the ships. In the light of fulfilling the duties conferred upon the organisation, the IMO has created various conventions. The establishment of IMO in 1948 has played a crucial role in the reformation of several important marine policies all over the globe.
The foremost important conventions brought upon by the IMO and United Nations are;
United Nations Convention on the Law of the Sea
The year 1982 marked the emergence of the United Nations Convention on the Law of the Sea. The law is a comprehensive regime of law that deals with the regulations pertaining to the world’s oceans and seas, thereby establishing law and order. It further lays down rules regulating the usage of ocean resources. The Law of the Sea is a compilation of traditional laws which deals with the uses of oceans and several new legal notions and regime which talks about the current issues and matters concerning maritime matters. Also, the law provides a legal framework to further develop several areas of the Law of the Sea. It is an international agreement in which several countries of the world are signatories, which enumerated several guidelines for conducting business via sea, the marine environment framework and also the management of marine natural resources.
Safety of Life at Sea (SOLAS) Convention
The ‘Safety of Life at Sea’ Convention is considered to be one of the most important conventions in the field of Maritime. In the marine industry, the most crucial concern is the safety of crew members and board members on the vessel. In light of this, the above-mentioned convention was enacted. The convention lays down minimum safety requirements that need to be met in relation to the construction, equipment, and maintenance of the ship. The code consists of 14 chapters which lay down various safety standards to be followed. However, the convention does not apply to all ships. The convention applies only to vessels travelling in international waters, provided it does not include warships, cargo ships of less than 500 GT, non-propelled ships, wooden ships, non-commercial pleasure yachts, and fishing vessels. Hence the above-mentioned list of vessels will not be held accountable for not following the rules and regulations enumerated in the SOLAS convention.
Maritime Labor Convention (MLC)
The minimum standards for seafarers who are working on a ship are set up by the Maritime Labour Convention. It is an internationally recognised convention, that enumerates uniformly the regulations and guidelines to be followed while setting minimal standards for several things like contracts of employment, pay, manning levels, hours of rest, leave entitlement, repatriation, compensation for ship loss or foundering, and career and skills development. As per the provisions of this convention, the seafarers before working on a ship should be trained first, to avoid future problems that may come the way of seafarers due to the lack of knowledge. The convention also ensures other hospitality facilities for seafarers. The convention also lays down certain norms for undergoing regular risk assessments. It is important to note that the convention does not apply to inland waters.
Standards of Training, Certification, and Watchkeeping (STCW) for Seafarers Convention
The convention that lays down the minimum qualification standards for the seafarers or the crew members and the personnel on board a ship is known as the ‘Standards of Training, Certification and Watchkeeping for Seafarers Convention’.The convention provides for the training of seafarers, following which a certificate is issued by an approved source. It is important to note that this convention also applies to non-party states when the ships are visiting the states which are party to the convention. This convention applies to all ships that are greater than 24 metres.
The International metersConvention for the Prevention of Pollution from Ships (MARPOL)
This convention was formulated to deal with the issue of marine pollution that is caused by ships. This convention enumerates various codes and regulations for the protection of the environment from the pollution caused by ships. The convention includes pollution prevention from a routine operation or accidental perspective. It also lays down the discharge and cleaning process that is to be done for a ship on a regular basis. The convention also provides for regulation for setting standards of stowing, handling, and transfer of hazardous cargo.
Convention on the International Regulations for Preventing Collisions at Sea, 1972
This convention was adopted in the year 1972, thereby repealing the Collision Regulations of 1960. It is considered one of the most important conventions since it gave recognition to traffic separation schemes, which included various provisions like determining a particular speed limit, the conduct of vessels, other provisions for the risk of collision, etc. The enactment of this convention made it crystal clear that observance of all traffic schemes shall be made mandatory.
International Convention on Tonnage Measurement of Ships
This convention was formulated to introduce uniformity in the tonnage measurement system. It was enacted in 1969 and came into force in July 1982. Before this convention, several methods were in existence for the calculation of tonnage of the merchant ships. Gross and net tonnages are the two calculations included under this convention, both of which are calculated independently.
International Convention on Maritime Search and Rescue (SAR)
This convention was adopted in the year 1979 and came into force in 1985. It was adopted with a view to inculcate a uniform search and rescue plan, hence irrespective of the fact of the place of incident, the rescue team will immediately contact the SAR organisation. Thus, the incorporation of a separate SAR organisation will facilitate a smooth resolution of the casualties caused by accidents.
International Convention for Safe Containers
The convention for safe containers was adopted in 1972 and came into force in 1977. It was witnessed that there was a rapid increase in the use of freight containers in the delivery of goods by sea, along with the development of special container ships. Hence, the IMO, in cooperation with the Economic Commission for Europe, came up with the draft of this convention. The convention aims to address two important issues, namely, a high level of safety of human life by incorporating some test procedures and requirements for the containers, and secondly, smooth facilitation of containers on an international level, by providing uniform safety regulations.
International Convention Civil Liability for Oil Pollution Damage
This convention was adopted with a view to provide a better amount of compensation to the people who suffer due to the oil pollution caused by the oil-carrying ships. The convention places the liability for payment of compensation to the deceased on the shipowner whose ship caused the pollution.
Several other conventions have been formulated by International Maritime Organisations and are readily available on the website of IMO.
Maritime law in India
Prior to independence, several laws and rules were enacted to ensure safe and efficient maritime trading. Some of the post-independence laws that were enacted by the British in the field of maritime law are the Inland Steam Vessels Act, 1917; the Coasting Vessels Act, 1838; the Indian Ports Act, 1908; the Indian Merchant Shipping Act, 1923; the Merchant Seamen (Litigation) Act, 1946; the Control of Shipping Act, 1947; the Merchant Shipping Laws (Extension to the Acceding States and Amendment) Act, 1949; etc. These laws were mainly in the fields of salvage, certification of seafarers, ship liability, owner’s safety, line conventions, etc. However, these laws were not in harmony with the current needs of the maritime, and hence most of the above laws are no longer in existence, yet these laws have somehow helped in shaping the current maritime laws.
In the pre-independence period, 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 held that ordinarily, the High Courts of India hold superiority over any other courts in India in case of maritime matters. The High Courts of India have unrestricted jurisdiction over maritime matters. Thus, their decision was final and binding.
India has enacted the Admiralty (Jurisdiction and Settlement of Maritime Act), 2017 as the national legislation for governing maritime matters.
Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017: an overview
Enactment of the Act
The Law Commission in its 151st Report recommended various amendments and suggestions in the field of maritime laws. Based on these recommendations, a Bill was introduced in the Lok Sabha in the year 2005. However, the bill was not passed at that time. Later, in the year 2016, the Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill was introduced in the Lok Sabha, which received the assent of both houses. Finally, the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 was enacted, which later came into force in April 2018.
The enactment of the 2017 Act resulted in the abolishment of the Admiralty Courts Act of 1861, the Colonial Courts of Admiralty Act of 1890 and provisions of the Letters Patent Act of 1861 which related to matters of admiralty. The Act of 2017 is retrospective in nature; thus, all the pending adjudications pertaining to admiralty matters would be adjudicated under this Act. As per the provisions of the Act, it empowers the High Court of Karnataka, Gujarat, Orissa, Kerala, and Hyderabad (for Telangana and Andhra Pradesh) or any other High Court as per the notification published by the Central Government to decide the matters concerning maritime claims.
The Act aims to consolidate current laws on civil matters of admiralty jurisdiction of courts, proceedings concerning maritime claims, arrest of ships, and all other matters in relation to this. The title of the Act itself clarifies the objective of enacting the statute. The Act attempts to consolidate all the laws concerning admiralty jurisdiction and other legal proceedings in relation to the vessels, along with ship arrest, detention, sale, and other connected matters.
The Act applies to all the vessel owners, i.e., irrespective of the fact of the domicile of the owner. However, the Act does not apply to those vessels that are still under construction and have not been launched yet. The warship, naval auxiliary or other vessels which are owned and used by the Central or State Government or which are used for non-commercial purposes are also some other exceptions to the applicability of the Act. Also, a foreign ship that is used for non-commercial purposes as per any notification by the Central Government falls under the exceptional category. Section 4 of the Act provides a list of the matters that fall under the jurisdiction of maritime claims against any vessel. Section 5 provides for the provision of in rem proceedings against the vessel, wherein the vessel itself is considered a wrongdoer. It further empowers the High Court to make a ship arrest within the jurisdiction of the Court. The Court then directs the parties to furnish security against a maritime claim.
M.V. Elisabeth And Ors vs. Harwan Investment And Trading (1993)
Facts of the case
The appellant, M.V. Elisabeth, in the present case left his ship in the Marmagao in India, without issuing any bills of lading or any other required documents required by the respondent for the goods carried by it. After reaching the port, it was found that the appellant had misdelivered the goods, contrary to the respondent’s directions.
Being aggrieved by this, the respondent instituted an action in rem, in the High Court of Andhra Pradesh. The vessel was arrested at the Visakhapatnam Port and was later released after furnishing security as per the court order.
Later on, the appellant disputed that the Andhra Pradesh High Court does not have jurisdiction over the vessel. This contention of the appellant was rejected by the Division Bench of the High Court, against which the appellant moved an appeal before the Supreme Court.
- Whether Indian High Courts possess admiralty jurisdiction against a foreign ship, whose owner is not a resident of India or does not have a business in India.
- Whether the High Courts of India have the power to arrest the vessel once it enters Indian waters for legal proceedings.
The Supreme Court dismissed the appeal on the ground that the trial court possesses jurisdiction over this matter and further directed the case to be returned to the High Court. It further stated that the Andhra Pradesh High Court undoubtedly possesses admiralty jurisdiction claims relating to inward and outward cargo movements. Hence, the court quoted that it did nothing wrong by ordering the arrest of the vessel from the port of Visakhapatnam, as the Court had jurisdiction to order an arrest of the ship.
British India Steam Navigation Co Ltd vs. Shanmughavilas Cashew Industries (1990)
Facts of the case
In the present case, Shanmughavilas Cashew Industries, i.e., respondent no. 1 purchased 350 tons of raw cashew nuts from East Africa. The cashew nuts were shipped in the vessel SS Steliosm chartered by the appellant, a company incorporated in England. The vessel was chartered by the contract of affreightment, as evidenced by 3 bills of lading issued in favour of the shipper for 3 loads of cashew nuts. However, it was found that out of 4,445 bags, only 3,712 bags of cashews were delivered in Cochin. The respondent, aggrieved by this, sued the appellant and demanded damages for the short delivery. The trial Judge and the High Court ruled in favour of the respondent. Followed by this, the appellant moved an appeal before the Apex Court.
Whether the consignee or an endorsee is bound by the terms of the charter party terms incorporated into the bill of lading even if he is unaware of those terms.
The Apex Court allowed the appellant’s contention, thereby setting aside the judgment of the High Court of Kerala. The court further remanded the case back to the trial court, stating that the parties should be given a fair amount of opportunity. The court went on to say that the consignee or an endorsee is bound by the terms of the charter party and other terms of the contract enumerated in the bills of lading, even if the consignee or endorsee is not aware of the terms.
Owners And Parties Interested In The Vessel M.V. Polaris Galaxy vs. Banque Cantonale De Geneve (2022)
Facts of the case
In the present case, the Commercial Appellate Division of the High Court of Madras allowed the commercial appeal filed by the respondent in respect of an admiralty suit. The appellant, Galaxy Marine Service Ltd., a registered owner of the ship executed a charter party with Profitable Wealth Inc. (PW), which is further managed by Wirana Shipping Corp Pte Ltd., a Singapore company. The charterer further sub-chartered the vessel to Gulf Petroleum for carrying marine oil. Gulf Petroleum entered into a contract with Indian Oil Corporation, which was to be loaded at Kandla Port for discharge at Fujairah.
The Gulf Petroleum asked the respondent, Banque Cantole De Geneve, to finance the purchase of the oil. Later, PW issued a letter of indemnity to the appellant, and GP in turn issued a counter-indemnity to PW. The respondent further honoured the indemnity credit and paid Indian Oil Corporation. After some time, it came up before the appellants that they were cheated by the GP. Owing to this fact, the respondent asked the owner of the vessel to not discharge the ship. However, it was found that the ship was already discharged, and because of this, the respondent filed a misdelivery claim before the Madras High Court (Commercial Division Bench). The Commercial Division directed the arrest of the ship. A summary judgment was demanded by the respondent. Gradually, security was furnished, and the vessel was released. However, the court demanded that since GP is a necessary party, he should be made a party to the suit. Thereafter, an appeal was filed in the Commercial Appellate Division of the High Court (Division Bench), by the respondent. The Court allowed the appeal. Being aggrieved by this, the appellant moved before the Apex Court.
Whether an appeal lies before the Commercial Appellate Division of the High Court against an order passed by the Single Bench Commercial Division of the same High Court for the addition of a party, in an Admiralty Suit.
The Apex Court dismissed the appeal and held that an appeal before the Division Bench of the Commercial Appellate Division is not maintainable. An appeal cannot lie against the order passed by the Single Bench Commercial Appellate Division of the same High Court.
The maritime industry is one of the most important industries for the economic development of any country. Hence, it is of prime importance to have uniform and stable laws to regulate and govern these matters.
Frequently Asked Questions (FAQs)
Which regulatory authority governs shipping in India?
Shipping in India is centrally regulated and governed by the Ministry of Shipping (MoS). The Ministry of Shipping has formed a semi-autonomous body, i.e., a statutory body, called the Directorate General of Shipping, commonly referred to as “DG Shipping.” The authority has been granted powers through the Indian Merchant Shipping Act, 1958 (MSA). The Act deals with all the matters pertaining to shipping policies, legislation, and the implementation of international conventions.
In India, the admiralty suits are brought before which court?
In India, admiralty suits come under the jurisdiction of the High Court of the coastal state where the matter arose. As per the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, a High Court can only exercise jurisdiction over a vessel which falls under their coastal waters.
Which Convention codified the basic principles of nationality and registration pertaining to a ship for the first time?
The 1958 Geneva Convention was the first formal code that established the principles of the flag state and ship registration in international maritime law. In the convention, it was stated that the vessel should possess the nationality of the state to which it belongs upon registration.
- Michael J. Daly, Louis R. Koerner Jr., Anne L. Kulesa, Joseph F. Kulesa and Laurie Sands, Recent developments in Admiralty and Maritime law, Vol. 45, No. 2 (2010), pp. 119-147.
- George C. Potter, The Sources, Growth and Development of the Law Maritime, Vol. 11, No. 3 (Jan. 1902), pp. 143-152.
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