In this blogpost, Haridya Iyengar, Student, Jindal Global Law School, Haryana writes about  the status of Syrian refugees in Lebanon, Jordan, Egypt and Turkey.

The Syrian civil war has caused nearly 4.4 million Syrians to leave their country. The Syrian refugee crisis has brought tremendous challenges to the region. This paper tries to map out one of the most important aspects of the crisis, the legal status of the Syrian refugees. It will be taking into consideration four countries in particular – Lebanon, Jordan, Egypt and Turkey.

Relevant International Statutes

Before looking at the status of the Syrian refugees in other countries, it is important to get an overview of the statutes which help determine their status. There two major statutes when determining the status of the refugee – The 1951 Convention Relating to the Status of Refugees and The 1967 Protocol Relating to the Status of Refugees.

1951 Convention Relating to the Status of Refugees

All countries party to the 1951 convention relating to the status of refugees must agree to three obligations. First, the prohibition against returning an asylum seeker to his or her country if it would cause harm to their life or freedom. Second, the host country must provide administrative assistance, assessment of status and identification papers to refugees. Third, the host country must provide the refugees a wage-earning employment.

1967 Protocol Relating to the Status of Refugees

The 1967 protocol relating to the status of refugees broadens the definition of the term refugee by removing geographical limitations. It further includes victims of events disturbing public order in the term.

Status of Refugees in Lebanon

The number of Syrian refugees in Lebanon exceeds over 1.8 million as of January 2015[1]. A little over a quarter of Lebanon population consists of Syrian refugees. This has had a bad impact on the Lebanon population due to competing rights and problems with the economic rate.

Policies Governing the Status of Syrian Refugees

Lebanon is not part of the 1951 Refugee Convention or the 1967 Protocol, therefore; there is no law governing the country. The rights and status of the refugees will be governed by the impromptu policies made during the start of the crisis. Its refugee laws are based on its Memorandum of Understanding with the UNHCR, which states that refugees from Syria may not remain permanently but, must be resettled.

Since, Lebanon does not have any domestic legal framework guiding the government on the treatment of refugees there is no distinction between refugees and immigrants. Therefore, they are governed by the Law Regulating the Entry, Stay, and Exit from Lebanon passed in 1962. This law keeps open borders for the refugees. However, the government has recently revoked the policy for Palestinian refugees. Syrian nationalist refugees are given free residence for a year after which, they must pay a fee of $200 to continue their stay in Lebanon[2].

It must also be noted that there is a lot of discrimination between Palestinian refugees from Syria and Syrian nationalists in Lebanon. The list of challenges faced by the Palestinian refugees from Syria are long and overwhelming. They live in overcrowded camps and have to deal with social exclusion and isolation.

Food, shelter, Education and Livelihood

While Lebanon law has no social protection for non-citizens, the Covenant on Economic, Social and Cultural Rights binds the Lebanese government to provide social protection. However, the government of Lebanon is reluctant to implement these policies due to the tight labour market, overcrowding and lack of funds.

Status of Refugees in Jordan

There has been an open border policy for Syrian refugees since the start of the crisis. This policy enables Syrian refugees to enter without visas. However, the financial restraint, political tension and infrastructure limitation have affected the traditionally welcome attitude towards Syrians. The number of Syrian refugees in Jordan is over 1 million as of December 2015[3].

Policies Governing Status of Refugees in Jordan

The government of Jordan signed the Memorandum of Understanding with the UNHCR on 1998. This agreement binds the government of Jordan to ensure refugees the right to work, access to court and freedom from overstay fines and departure fees.

Refugees after a successful application, are issued a UNHCR card, which acts as a proof of registration and a ration card which entitles them to food in refugee camps. However, the living conditions in Jordan are so bad that many refugees have opted to go back to Syria.

Employment, Shelter, Food and Healthcare

While the MOU states that all refugees must be given the right to work, however, the government of Jordan due to its lack of resources does not issue a work permit to refugees. This forces refugees to seek alternate means of employment such as child labour and survival sex[4].

Jordanian health care and education policies for refugees provide for equal access to that of nationals in many respects. Jordanian schools have started offering second shifts for Syrian children.However, few children stay in school due to the problem of child labour.
The MOI card grants access to government health service for all Syrians refugees in urban areas. The UN and affiliated organisations take care of health service in camps. Several NGOs provide service for non-registered refugees all over the country as well[5].

Status of Refugees in Egypt

Egypt has opened its doors to many Middle Eastern and African refugees over the years. However, the recent economic depression and transition to a new government have made it difficult to keep an open border to Syrian refugees. Furthermore, the overpopulation and underemployment have prompted the Egyptian government to limit the rights of refugees. As of December 2015, approximately 250,000 Syrian refugees have been given asylum in Egypt.

Policies Governing the Status of Refugees in Egypt

Egypt’s asylum procedures are governed by the Memorandum of Understanding between Egypt and UNHCR, which was executed in 1954. It has also accepted both the 1951 convention and 1964 protocol.
On entry, Syrian refugees have to register with the UNHCR to receive a yellow card which indicates that an individual is awaiting residency in Egypt. After which refugees must submit a registration application form to the Immigration Department of the Ministry of the Interior’s Residence Unit for a residence permit[6].

Shelter, Employment, Education and Healthcare

According to UNHCR housing is the most significant protection gap for Syrian refugees in Egypt. While UNHCR has assessed 80,000 housing need cases only, 40,000 of those cases have received financial assistance. However in several areas, Salafi and other faith-based organisation have provided additional housing assistance.
Legal employment of refugees does not seem to be a feasible option. However, reports indicate that refugees are finding work illegally which leads to them being severely underpaid[7].
While the Egyptian government has allowed Syrian refugees access to public school, the cost and transportation issues deter Syrian refugee children. In response to these problems, the UNHCR has established an Education Working Group, its partners and the Ministry of Egypt meet to discuss potential education solution for Syrian Refugees.
Healthcare is limited to the capacity of public healthcare facilities and hospital to provide effective services to Syrian refugees. The WHO is trying to remedy this limitation by increasing its presence in Cairo, Giza, Alexandria, and Damietta.

Status of Refugees in Turkey

As of December 2015, the UNHCR has estimated over 1.8 million Syrian refugees in Turkey. The Turkish government has responded to the Syrian crisis with tremendous generosity. It has spent approximately half billion dollars on healthcare, education, employment and shelter of the refugees.

Policies Governing the Status of Refugees in Turkey

Turkey has accepted the 1951 convention and 1967 protocol relating to the status of refugees. However, Turkey retained the geographical limitation which was removed by the 1967 protocol. Therefore, only refugees from Europe may seek asylum in Turkey.
Turkey passed the Council of Ministers Directive in April 2012. This directive ensures refugees from Europe temporary asylum. It also passed the 2013 Law on Foreigners and International Protection, which gives substantive humanitarian protection to asylum seekers.
Syrians living in camps are free to return to Syria if they desire but, must undergo counselling prior departure and demonstrate that their decision to return was not made due to coercion.

Shelter, Education, Healthcare and Employment

The government of Turkey has provided shelter in over 22 refugee camps and in urban areas across the country[8]. Many Syrian refugee also live in collective shelters, mosques, wedding halls and barns[9]. Refugees can be permitted to petition the government to be housed in a city where they could show they had a family member.
Education while provided within the camps have very few students attending because of the language barrier.
Individual who have registered with the AFAD get free health care in Turkey.
While Syrians do not have formal access to the labour market, the Turkish government has turned a blind eye to informal participation in the workforce[10].

Conclusion

The huge refugee flow from Syria must be shared by more countries. It is important that the global community help contributes towards the improvement of refugee, immigrant and humanitarian policy and law building. A worldwide effort can help prevent the Syrian refugee crisis from turning into a humanitarian disaster.

[1] http://www.unhcr.org/pages/49e486676.html

[2] https://www.bu.edu/law/central/jd/programs/clinics/international-human-rights/documents/FINALFullReport.pdf

[3] http://www.unhcr.org/pages/49e486566.html

[4] Needs, Vulnerabilities and Capacities, 2014 REFUGEE RESPONSE PLAN, available at http://www.unhcr.org/syriarrp6/docs/syria-rrp6-jordan-response-plan.pdf.

[5] UNHCR, 2014 UNHCR Country Operations Profile – Jordan, available at http://www.unhcr.org/cgibin/texis/vtx/page?page=49e486566&submit=GO [2014 Country Profile – Jordan]

[6] UNHCR JOINT ASSESSMENT FOR SYRIAN REFUGEES IN EGYPT 8 (2012), available at https://data.unhcr.org/syrianrefugees/download.php?id=1219.

[7] https://www.bu.edu/law/central/jd/programs/clinics/international-human-rights/documents/FINALFullReport.pdf

[8] Republic of Turkey Prime Ministry Disaster and Emergency Management Presidency [AFAD], Syrian Refugees in Turkey, 2013: Field Survey Results, A Preliminary Remarks

[9] https://www.bu.edu/law/central/jd/programs/clinics/international-human-rights/documents/FINALFullReport.pdf

[10] https://www.bu.edu/law/central/jd/programs/clinics/international-human-rights/documents/FINALFullReport.pdf

In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal, writes about who can file a PIL and the procedure to file a PIL

Introduction

PIL stands for “Public Interest Litigation”. In plain language, it means, litigation filed in a court of law for the protection of “Public Interest”. A PIL can be filed for various matters, some of which are pollution, terrorism, road safety, or any such matters which are concerned with public at large.

Who Can File A Public Interest Litigation

In general, a case can be filed by the aggrieved party i.e. the victim, or any such person who has an interest related to the dispute. But there is no such requirement for filing a Public Interest Litigation. Any person can file a Public Interest Litigation.

This is one of the primary advantages of a PIL, the person filing a PIL need not show that he has an interest in that particular case. In legal terms, the person who is filing such petition does not need to exhibit a ‘locus standi’ in the case or the fact that one has suffered or is likely to suffer legal injury. Thus, a person can approach the court on behalf of others even though he is not the one who is aggrieved in any sense.

One such example is filing an application of ‘habeas corpus’ because the person for whom such application is made is missing and hence cannot be filed by him, so his relatives file such an application. Though habeas corpus is a writ, the principle of locus standi can be very well understood by this example.

During the phase, when the principles of PIL were being settled, the Supreme Court in the case of Hussainara Khatoon v. Home Secretary, State of Bihar[1], laid down four distinct principles of PIL in India. These principles are as follows:

• a petition need not be filed by the person whose own legal rights are at issue and can be brought before the court by any public-spirited citizen,
• the person who is filing the petition need not have personal knowledge of the case details, and he can support his contentions by referring to excerpts like those of newspaper articles,
• both legal principles and relief can be used in the preliminary stage of the litigation, and
• the scope of litigation can be expanded beyond what was stated in the original petition if during the progress of the case facts indicate greater injustice

PROCEDURE TO FILE A PIL

A PIL is filed in the same manner as a writ petition is filed.[2] Proceedings, in PIL commence and carry on in the same manner, as other cases.[3]

Any of these courts can be approached for filing the petition in the interests of the public or for public welfare[4]:

• Supreme Court under Art.32 of the Constitution of India;
• High Court under Art.226 of the Constitution of India; and
• The Court of Magistrate under Sec.133 of Cr. P.C.

While filing a PIL under the jurisdiction of High Court, two (2) copies of the petition have to be filed, however if a person wants to file a PIL under the jurisdiction of Supreme Court, he has to file five(5) sets of petitions. [5]

The courts must, however, ensure that the petitioner is acting in good faith (bona fide), and not for his personal gain, private profit or political or other indirect considerations.[6]

The present position regarding filing PILs by letters is that the concerned courts can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a petition application by the court. The court would be justified in doing so only in the following cases[7]–

• When the letter is being addressed by an aggrieved person; or
• Addressed by any public spirited individual; or
• Addressed by a social action group for enforcement of the constitutional or the legal rights of a person or a group or class or persons who cannot approach the court for redressal, amounting to any physical, social or financial disability.

There are situations where the victim does not have the necessary resources to commence litigation or he cannot move to the court as his right to freedom has been concealed or encroached upon. The court can suo moto take cognizance of such cases and can commence the proceedings thereon.

Court Fees– A fee of Rs. 50, per respondent, has to be affixed on the petition.[8]

Conclusion

PIL is one of the very important steps taken by the judiciary, as it helps the individual to ask for the intervention of judiciary even in cases where the petitioner doesn’t have any personal interest in the outcome of the case, but it is for the sake of benefit of other individuals or a group or class of individuals, who themselves cannot approach the court owing to various disabilities, that he has filed such a petition. It also helps in maintaining the equilibrium between all the branches, as enunciated by the constitution, and directs them to function properly as and when needed.

[1] (1980) 1 SCC 98

[2] See http://www.advocatekhoj.com/library/lawareas/publicinterestlitigation/procedure.php?Title=Public%20Interest%20%20%20Litigation&STitle=Procedure%20to%20File%20a%20Public%20Interest%20Litigation

[3]See http://www.advocatekhoj.com/library/lawareas/publicinterestlitigation/procedure.php?Title=Public%20Interest%20%20%20Litigation&STitle=Procedure%20to%20File%20a%20Public%20Interest%20Litigation

[4] See http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

[5] Supreme Court guidelines, available at http://supremecourtofindia.nic.in/circular/guidelines/pilguidelines.pdf

[6] Ibid

[7] S. Kaushik, Know all about Public Interest Litigation (PIL), available at http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

[8] Supra 2

In this blogpost, Vernita Jain, Student, National Law Institute University, Bhopal  crticially analysis law relating to  hostile witnesses in India

A person is said to be hostile when he is  “very unfriendly or aggressive and ready to argue or fight”. The term ‘hostile witness’ is not defined anywhere in Indian Law.

During a trial, when the prosecution council calls a person to witness in his favor and such person when called upon does not confirm to his previous statement which was collected during the investigation is called a hostile witness.

The common law describes a person as a hostile witness when the person is not desirous of telling the truth in favor of the party that called him.

A hostile witness testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination. Only the judge has the right to declare a person as hostile on the request of the examiner.

The concept of hostile witness first arose in the case of, Sat Pal v Delhi Administration[1], Supreme Court here gave the meaning to the term ‘hostile witnesses’.

STEPS TAKEN FOR HOSTILE WITNESS

Attorneys have a trust on the witness they are calling that, they would testify in favour of the party. But sometimes a witness may turn hostile and demolish advocate’s purpose. However, in such a case the attorney can request the judge to declare the witness as a hostile witness. Then he could cross- examine the witness to get a testimony more favourable to his case. In practice, when the Attorney gets the court judge’s approval for treating a witness as a hostile witness, he could usually enjoy great freedom as how to question the witness. Hence, while giving evidence, if the witness tends to be opposed to the calling  party, it is generally open to being condemned as his conduct is highly reprehensible and irresponsible.

Thus, where the witness is suspected of being adverse to the calling party, The Attorney who is calling him to testify could use the method of cross-examination in order to reveal the witnesses complicity too. Interestingly, the witness could turn to hostility either in the prosecution or defense. The prosecution witnesses turn hostile, especially during the cross-examination.  Conviction of the guilty person in a criminal case develops the devotion and sincerity among the public. But nowadays most criminal cases are at risk of turning hostile.

Relevant Legal Provisions

Section 154 of the Indian Evidence Act States: The court may, in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

A close scrutiny of sec 154 will bring following points into picture:-

1. The provision permits only those questions that can be asked during a cross-examination.
2. The law nowhere mentions the need to declare the witness as “ hostile” before the provision can be evoked.
3. The request to declare a person as a hostile can be invoked only when the examining party feels that the statement presently spoken or the testimony given by the witness would be against his duty to speak the truth.

It can be thus inferred that, unlike common law system, there is no distinction between a ‘hostile witness’ or ‘adverse witness’ for the purpose of cross-examining. All that the law seeks to elicit hidden facts for the sole purpose of determining the truth.

Section 193 of Indian Penal Code,1860:- talks about the person who  intentionally gives false evidence in any stage of a judicial proceeding. This provision states that any person doing such would be liable for punishment with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation 1 : A trial before a Court-martial is a judicial proceeding.

Explanation 2: An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding though that investigation may not take place before a Court of Justice.

Section 196 of Indian Penal Code, 1860: talks about the person who corruptly uses or attempts to use as genuine or true evidence which he is aware of being  false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.

Section 199 of Indian Penal Code, 1860 :- if a person who is bound by the law to receive any evidence, makes a false statement, which he knows to be false in nature and that such a statement touches upon any material point in the case, should be punishable in the same manner as if he gave false evidence.

In India, the law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice.

Evidentiary value of the statements:

The Indian law says that just because a person has turned hostile, that doesn’t mean that whole of his statement should be turned down.[2]” In State of U.P. V.Ramesh Prasad Mishra and anr.,[3]

“It is the law that the statement of the hostile witness to be taken as the evidence would not be totally rejected just because the person has moved away from his duty to speak the truth , or that he has not spoken in the favor of the prosecution. However, in such a case, the court can scrutinize the statement of the witness and can reject only the part that is inconsistent with the case or arguments of the prosecution  ”.

The Jessica Lal case

Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi)[4]

The biggest case that involved the hostile witness was the case of the Jessica Lal’s murder. In this case, the total of 80 witnesses had turned hostile.

FACTS

In this case, Jessica Lal was a model working in an unlicensed bar at Delhi. By midnight, the bar ran out of liquor, and Jessica Lal refused to serve Manu Sharma, who was with a group of three friends. Sharma then produced a pistol and fired it twice: the first bullet hit the ceiling and the second hit Jessica in the head and killed her.

After eluding police for a few days, with the assistance of accomplices, Khanna and Gill were arrested on 4 May and Sharma on 6 May. The murder weapon ware not recovered and was thought to have been passed on to a friend who had been visiting from the US and who may subsequently have returned there.

A person named Munshi was the key witness in the case. During the reading of the First Information Report, he said that “the  statement that he gave to the police was recorded in Hindi while he had narrated the whole story in English.” Munshi in his previous statement said that he saw total 2 guns on the night of the murder. He however, turned from his statement and latter told that he just saw two gentlemen at the bar counter and nothing about the gun.

JUDICIAL DECISION

In the year 2006, the trial court based on the statements of the hostile witnesses, acquitted Sharma. This decision of the trial court was followed by a huge uproar throughout the country. The appeal regarding this decision of the trial court was accepted which was based on the evidence already taken by the lower court.

Sharma was punished with a sentence of life imprisonment and a fine. The other accused, Yadav and Gill, were fined and given four years’ rigorous imprisonment. A plea for Sharma to be sentenced to death was rejected on the grounds that the murder, although intentional, was not premeditated and Sharma was not considered to be a threat to the society.

BEST BAKERY CASE,[5]

Best Bakery trial is one of the best example that one can be given regarding miscarriage of justice. In this case, the powerful and rich accussed forced the witnesses to turn hostile. The witness failed to identify the accused so the prosecution failed to prove that charges. Later, one of the witnesses who had turned hostile accepted that she had turned hostile under threat and fear for her life.

BMW HIT AND RUN CASE,

A boy named Sanjeev Nanda was alleged to have run his BMW over sleeping pavement dwellers in Delhi. Three people died on the spot and other received serious injuries. In this case, again a large number of the witnesses were bought by the powerful accused and Monoj Mallick, who was the lone survivor told the court that he was hit by a truck. The key witness, Hari Shankar, refused to identify the BMW, and another witness absconded. In fact, none of the witnesses supported the prosecution. The accused were acquitted.

Reasons for people turning hostile:

There might be many reasons for a witness to turn hostile. Some of the important reasons are:

• The absence of Witness Protection.
• Prolonged trials.
• Easy bail of the rich accused.
• The absence of adequate facilities of the court to the witnesses.
• Usage of the money and power by the accused.
• Threat by the accused.
• Other factors like, fear of police or legal system, political fear, etc.[6]

SUGGESTIONS

Delayed trials along with prolonged investigations are the main reasons for the accused to make a witness hostile. So in the cases in which there is a possibility that the witness can turn hostile, speedy trial should be practiced. There is a need for stringent laws as, the leniency of the judicial system help the witnesses to easily turn hostile. The criminality of “buying” witnesses by rich and powerful can be handled only by the presence of strict laws. In order to curb the situation like Jessica Lal’s case, it is very important that the court, to protect the witness should:

• Hold in-camera trials.
• Keep identity of the witness secret.
• Make arrangement to ensure the protection of witness.
• The court should make provisions to compensate the witness for the amount that he incurred to come to court and testify.
• Attention should be paid to the comfort and dignity of the witness.[7]

[1] 1976 Cri.L.J. 295: A.I.R. 1976 S.C. 294.

[2] Syed Akbar V. State of Karnataka 1980 (1) S.C.C. 30, Rabindra Kumar Dey V. State Of 1976(4)S.C.C.

[3] 7 (1996) 10 S.C.C. 360

[4] 2001 Cri.L.J. 2404.

[5]  (2004) 4 SCC 158 20

[6] http://www.grkarelawlibrary.yolasite.com/resources/SYLLM-CRM-I-Halima.pdf.

[7] “Problem of hostile witness” by Mamta Chaterjee. http://www.legalservicesindia.com/article/article/hostile-witnesses-and-efficacy-of-law-1692-1.html

In this blogpost, Harsha Jeswani, Student, National Law Institute University, Bhopal writes about the procedure for ship arrest in India.

Introduction

Admiralty law which is often referred as Maritime law is a branch of law which deals with the issues and disputes that arise overseas. It deals with matters involving ships, shipping or crimes occurring on open water. The law governing maritime activities within the domestic framework and the activities taking place in international waters are both covered under maritime law. It deals with matters involving navigation, loss to the vessel during transit, damage to goods transported by sea, etc.

Every country has its own legislation governing maritime matters. The various laws of India dealing with transport of goods by sea are the Merchant Shipping Act, 1958, the Indian Carriage of Goods by Sea Act, 1925, the Indian Bills of Lading Act, 1856, ,  and general statutes, such as the Marine Insurance Act, 1963, the Evidence Act, 1872, the Code of Civil Procedure, 1908,  the Contract Act, 1872, the Indian Penal Code, 1860, , the Criminal Procedure Code, 1973, the Companies Act, 1956 etc. as well as the general principles of law such as the law of torts, public and private international law etc.

In addition to the above, other issues within the purview of this law are the interpretation of shipping contracts, the rights and obligations of the parties, and the provision for damages in case of loss suffered by a party due to any breach committed by a contracting party.

Preface

In past few years, there has been an increase in the cases involving maritime disputes and the most common relief sought in such cases is the party seeking arrest of the ship. Ship arrest is a procedure developed by the courts to render justice in accordance with substantive law not only in cases of collision and salvage but also in cases of other maritime liens and claims arising by reason of breach of contract for the hire of vessels and carriage of goods or other maritime transactions such as conversion or negligence occurring in connection with the carriage of goods. Indian courts particularly consider the Arrest Convention of 1952 and the Arrest Convention of 1999 for the purpose of seeking arrest of the vessel.  The procedure governing such arrest is quite complex and time-consuming. However, an immediate arrest of the vessel can be made in emergency cases.

The article purports to explain procedure which needs to be complied with for obtaining the arrest of the vessel. Although the procedure is cumbersome, it is relatively quick to obtain an arrest in urgent cases.

Broadly speaking, the following are the most important points which any Claimant wishing to arrest a vessel in India must keep in mind:

Which Court to approach

In India, the Admiralty Jurisdiction is confined only to few courts. Initially the High Courts of Bombay (Mumbai), Madras (Chennai), and Calcutta (Kolkata) exercise jurisdiction over maritime matters which was later extended to the High Courts of Gujarat (Ahmedabad), Andhra Pradesh (Hyderabad), Orissa (Cuttack) and Kerala (Cochin). These courts can make orders with respect to the vessels within the waters of Indian Territory. The power of most of these High Courts is confined only to vessels which can be located within the domestic limit of their territorial waters.  For instance, Madras High Court is empowered to arrest a vessel found in the waters of Tamil Nadu only.

The High Courts of Calcutta and Bombay, on the other hand, have no such restriction over their admiralty jurisdiction and can make an order for arrest a vessel found anywhere in Indian territorial waters and not just to vessels in their respective state territorial waters. In others words, the Bombay High Court can exercise admiralty jurisdiction over a vessel in Calcutta irrespective of the place of location. This difference makes Mumbai and Kolkata a preferred Court over others since they can arrest vessels irrespective of its location provided  if the vessel is within Indian territorial waters.

Jurisdiction to arrest over following Claims:

The maritime law of India is largely based on the principles of the admiralty jurisdiction of England. The Admiralty jurisdiction of the High Courts at Calcutta, Madras and Bombay were based on the Admiralty jurisdiction of the High Court in England. The Admiralty jurisdiction exercised by the High Courts in the Indian Republic is still governed by the obsolete English Admiralty Courts Act, 1861 applied by (English) Colonial Courts of Admiralty Act, 1890. Even though there have been subsequent legislations providing for admiralty jurisdiction of certain Courts in India, most of these have been adopted from England. A list of claims for which a vessel can be arrested is provided under the Admiralty Courts Act, 1840 and Admiralty Courts Act, 1861, provide.

The two conventions which deal with the arrest of a shipping vessel are the Arrest Convention 1952 and the Arrest Convention 1999. India is not a signatory to any of these Conventions. However, the Supreme Court in the case of M.V. Elizabeth v. Harwan Investment & Trading Pvt. Ltd.[1] held that since India is a common law country, the International Convention of the Arrest of Seagoing Ships, Brussels, 10 May 1952 can be applied to India to enforce the claims of maritime law against the foreign ships. Further, in the case of M.V. Sea Success[2], the Supreme Court of India laid down that the principles of the 1999 Geneva Arrest Convention were applicable for arresting a ship in India. It was observed by the court that the principles set out in these Conventions are in compliance with the domestic law of India and therefore by this decision, the Apex Court has widened the scope of the jurisdiction of Indian Courts.

Of all the claims listed in the Arrest Conventions 1952 and 1999, the vessel can be arrested for claims relating to damage done by a ship, loss of goods in transit, salvage, master’s wages, disbursements and bottomry irrespective of any change in the ownership of the vessel. In respect of the other claims, if there has been a change in the ownership of the vessel, the claim will fail, and no arrest can be made unless there was a fraud committed with respect to the change of ownership.

Documents required

 The most important requirement for ship arrest is that the claimant needs to issue a Power of Attorney in favour of local attorneys other that the lawyers instructed who will have the power to sign all the necessary court documents. The Attorney then has to sign a Vakalatnama (Note of appearance) authorising a lawyer to act, appear and plead the case in Court on behalf of the Claimant.

The next step is filing a substantive suit. The Claimant has to state the detailed facts, the nature of the dispute, the particulars of the claim, etc. in such a suit along with all the documents supporting his claim such as the original contract, type of vessel, document regarding payment, etc.  This suit essentially represents the substantive portion of the claim. The last part of the suit must contain the prayer of the claimant seeking arrest of the defendant, the sale of the vessel, the amount of compensation.

The Plaintiff also needs to pay the court fees depending on the amount of the claim which will differ from court to court. The plaintiff then has to file an affidavit supporting his plaint, a copy of the order of the judge requiring the arrest of the vessel along with an affidavit, a Warrant of Arrest issued by the court pursuant to the Judge’s order and served upon the vessel and an Undertaking to pay compensation in case of wrongful arrest. The plaintiff does not need to pay compensation merely because the court had set aside the arrest but only when the Court holds that the arrest was wrongful for instance, if the plaintiff himself was at fault or when the plaintiff acted with bad intention.

Further, an application for ex-parte arrest can be made upon plaintiff submitting Certificate from the Admiralty Registrar signifying there is no caveat issued against the arrest of the vessel with the Registry. Also any claim for wages, possession, etc. requires an issuance of notice to the Consulate of the Country in which the vessel is registered.

Other requirements to be complied with:

Normally, all the above formalities take 2-3 days. However, if the plaintiff wishes for an immediate arrest of the vessel, he can apply to the Court for an order of arrest on an urgent basis either on the same day of filing an application or the following day depending on the Court’s discretion. Generally, the courts make an order on the same day of filing application. Once the court orders the arrest of the vessel, the judge will sign the order on the basis of which an Arrest Warrant will be issued by the Registry. The Sheriff will then order the Court Bailiff to serve the Warrant of Arrest upon the vessel which is required to be arrested. The warrant also has to be served on the customs and the port authorities requiring them not to allow the vessel to sail. The Bailiff after serving the Warrant of Arrest upon the vessel and the port authorities will file an affidavit stating that he has performed his duty.

Procedure after arrest:

After the Arrest Warrant is served upon the vessel, the vessel is then required to appear through its owner and settle the claim or challenge the arrest. If the owner challenges the order of arrest, the owner has two options. Either he can let his vessel sail by furnishing the security for the claim and then contest the arrest, or he can challenge the arrest by keeping the vessel under arrest. Generally, the former is preferred since in such case; the vessel is allowed to sail and thus can be employed for gain. In the case of default of owner, the court can make an order for the sale of the vessel and the sale proceeds can thereby be utilised to settle the claims of the Plaintiff. In the case of any surplus, it must be paid back to the owner.

Conclusion:

Thus, it can be said that despite all such formalities, the procedure for arresting a vessel in India is quite quick as no counter security needs to be furnished and the Undertaking by the plaintiff can be invoked only in cases of wrongful arrest. This makes India a friendly arrest jurisdiction. Further, it can be said that in most cases the admiralty jurisdiction of Bombay High Court is invoked as it has jurisdiction over vessels present anywhere within the Indian territorial waters.

[1] AIR 1993 SC 1014

[2] 9 SC 218

In this blogpost, Shivam Anand, Student, DSNLU, Vizag writes about the liability of the insurance company and oil marketing companies in case of LPG accidents, interim reliefs and the procedure to claim the compensation.

INTRODUCTION

Every now and then in the news, we hear of LPG accidents taking away several lives and affecting many. According to a report of Oil Marketing companies comprising Indian Oil, Bharat Petroleum and Hindustan Petroleum, there were more than 140 million LPG users in India in 2010. LPG accident had become rampant and the worst part being that even after the applicability of “Public Liability Insurance Policy” to safeguard the interest of the third party or customers who become a victim of such accidents, many customers are unaware of such Insurance policies. Though the state government declares compensation for the victims, but the question is about the liability of the Oil companies who are the reason behind such accidents and liable to make up for it.

Now under Public Liability Policy (NON-INDUSTRIAL RISK) which is policy no. 0217002715P101332273 there are 3 Oil Marketing Companies insured by UNITED INDIA INSURANCE CO. LTD which are

• M/S.INDIAN OIL CORPORATION LIMITED
• M/S. BHARAT PETROLEUM CORPORATION LIMITED
• M/S. HINDUSTAN PETROLEUM CORPORATION LIMITED

The period of Insurance is renewed every year and the present period of insurance is from 00:00 hrs of 2^nd of May 2015 to the midnight of 1^st of May 2016

Under the policy clause 9.15 it has been provided that no claim shall be payable under this policy until and unless the liability to pay claim is established against the insured in the Indian court.

Under Section 1 of this Public Policy consists legal liability of the insurance company

• With respect to this section, the insurance company will indemnify the insured e., Oil Marketing Companies under this policy against their legal liability to pay compensation including the claimant cost fees and expenses in accordance with Indian law in the case of the accidental bodily injury to any person.
• It also protects in case of accidental damage to property happening during the period of insurance.

Exception:

1. It does not consider the person who is engaged in and upon the service of the insured at the time of occurrence giving rise to such injury and not a person claiming against the insured under any workmen’s compensation act.
2. It does not cover property belonging to or in the custody of the insured or under the control of the insured or any person who has been working for the insured if the damage result directly from such work.

In these exceptional cases the insured company won’t be liable to pay as it happens during the period of employment which is covered under already available compensation act.

SECTION 2

It covers personal accident cover to third party and damage to the registered premises of the authorised customer

• If any person sustains bodily injury solely and directly caused by usage of LPG cylinder during policy period resulting in death or disablement as stated in the prescribed policy document of Insurance company, then the company shall pay to the person or his/her assignee or legal personal representative the sum or sums accordingly as

1. If injury shall within 12 calendar months be direct and sole cause of death of the insured person, then total sum stated in schedule
2. If within 12 month of occurrence of such injury causes total and irrecoverable loss of sight of both eyes or of actual loss by physical separation of 2 entire hands or 2 entire feet or loss of use of hand or one foot then the total sum insured in the schedule

• In the case of total and irrecoverable loss of sight of one eye or of actual loss by physical separation of one entire hand or of one entire foot then 50% of the sum stated in the schedule has to be provided. The same is applicable in the case of total and irrecoverable loss of use of a hand or foot without physical separation in which 50% of the insured sum has to be provided.

1. In case, the injury causes immediate permanently totally and absolutely disable the injured person from engaging in any employment or occupation of any description then a lump sum which is equal to 100% of the sum insured is to be provided.

MEDICAL EXPENSES

The amount of actual medical expenses incurred which shall not exceed Rs. 1,00,000 per person and Rs. 15,00,000 per event including any exceptions.

EXCEPTIONS UNDER WHICH THE INSURANCE COMPANY LIABILITY CEASES:-

• The company is not liable in case the compensation under more than one of provided clauses in respect of the same period of disablement is sought.
• Any other payment after a claim under either of the provided clauses has become payable.
• Payment of compensation in respect of death injury or disablement of the insured person from intentional self-injury or suicide or attempt to suicide or under the influence of liquor/drugs.
• It is also not applicable in case of any breach of the law with criminal intent

LIMIT OF LIABILITY IS

1. 50,00,000 per event
2. and Rs. 10,00,000 per person

CIRCUMSTANCE UNDER WHICH IF ACCIDENT OCCURS THEN LIABLE TO BE COMPENSATED:-

• In the case of filled LPG cylinders was being carried out of the bottling plant.
• In case, the filled LPG cylinders were in transit in the hands of approved transporters.
• In the case of LPG cylinders stored in the distributors
• In a case filled LPG cylinder was in transit from distributors premises to registered customer’s premises.
• In a case filled LPG cylinders was lying in registered customer’s premises.
• In case, empty or filled cylinders are being carried back to bottling plants.
• In the case of arising out of the use of LPG supplied by insured in reticulated system community kitchens other applications like geysers, lightning generator sets and irrigation pumps.
• In case cylinder was being connected to LPG installations and disconnected from LPG installation
• LPG used in Educational Institutions, research laboratories, government or municipal hospitals, mid-day meal schemes, social welfare institutions being run for child welfare, social welfare institutions.
• Restaurants, hotels, private hospitals or clinics poultry farms, grain drain, brick kilns, and ceramic industry using LPG.

Persons purchasing 5kg LPG cylinders under FTL scheme from LPG DISTRIBUTORS/RETAIL OUTLETS /KIRANA STORES ARE NOT INCLUDED IN THE POLICY.

IMMEDIATE RELIEF

In the case of occurrence of an accident requiring hospitalization of the victim, insurance will authorise relief of Rs. 25000 on confirmation of liability and production of “immediate relief certificate”  by authorized representative of insured. It can be settled in final settlement of the claim.

Insured has to bear a compulsory excess of Rs. 10000 for any one accident under Section I, this is applicable to death and bodily injury and also to property damage.

So this was all about the contents of the insurance policy signed between United Insurance Company Ltd. and Oil Marketing Companies comprising of the three insured company.In addition, to this if one goes through the website of these Oil companies then we will find that other than this comprehensive policy all LPG distributors have a different third party insurance policy to cover the interest of the consumers in case of any unfortunate events.

PROCEDURE TO CLAIM COMPENSATION

• In the case of any accident involving consumer’s installation, he/she has to inform the distributor of the gas company immediately. The distributor will inform the gas company and the insurance company at once.
• Whenever an accident is reported, the concerned Office in the nearby area of the oil company investigates the cause of the accident and if the accident is found to be LPG accident, the local office of the Insurance Company is notified by the concerned distributor / Area Office and then subsequently lodges a claim with the concerned Insurance Company.
• Customers are not required to apply to Insurance Company or to contact them directly.
• Customers are required to submit to the Oil Company the originals of Death Certificate(s) and Post Mortem report(s) /Coroners report/Inquest report, as applicable, in case of deaths and original Medical Bills, Doctors’ Prescriptions in original supporting the purchase of the medicines, Discharge Card in original and any other documents related to the hospitalization in case of injuries.
• In the case of property damage at customers’ registered premises, the Insurance Company will appoint their Surveyor to assess the loss and after assessing the loss will inform the insurance company about the claim on the damaged property.
• Claims are settled based on the merit of each case. The concerned Insurance Company takes a decision regarding settlement of the claim as per the provisions of Insurance Policies.

One should ensure all material like lighter and gas pipe should be ISI marked to claim successfully.

CONCLUSION

Thus, in the above article one can understand the basic pre-requisites and procedure to claim compensation in case of any LPG accidents. All the Oil Marketing Companies can’t make people aware of the existence of such insurance policies made for the benefit of protecting the rights of the consumer who become a victim of such unfortunate accident. They keep on paying a huge premium to the insurance companies which at the end of the day is of no use. So in case, some unfortunate event occurs in future, and one should realize their right and claim them.

Join us for a webinar with Shriya Maini, Advocate, Supreme Court of India (currently working with United Nations) on “Opportunities for Indian students in Public International Law” (Saturday, 16th January) between 4 – 5 PM IST. The webinar is organised by iPleaders  as a part of the NUJS Diploma course in Entrepreneurship, Administrative and Business law (http://startup.nujs.edu).

The webinar is accessible to all on the link  https://plus.google.com/events/csi6b5hvbfn8g0fnc3l7d2npl04a

About the webinar

As an interdisciplinary academic field, Pubic International Law attracts students interested in cross-border issues ranging from international business to armed conflicts and human rights. While International organizations and nonprofits may offer interesting options for an international lawyer, there are law firms and corporate counsels who too are willing to offer jobs at entry level positions to interested Indian students. She is here to take you through a quick tour of all the available options and share some meaty do’s and don’ts, gained out of sheer personal experience as far as seeking employment in the field of International law goes!