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Report No. 151

8.7. Though the proposed draft Bill is explanatory in itself, we however, think it necessary to briefly outline the main features of the proposed legislation. This may be considered in two parts: (i) the court which should exercise admiralty jurisdiction; and (ii) the scope and extent of their jurisdiction. The first of these topics is dealt with in greater detail in the succeeding Chapter 9. We shall here deal with some principal aspects of the second topic.

8.8. A wide range of subjects now fall within the ambit of admiralty jurisdiction, particularly those relating to maritime claims, contracts, torts, etc. There are various aspects touching admiralty jurisdiction in regard to location, persons, aliens, property, vessels, hydroplanes, etc. and certain principles governing tortious liability in admiralty matters which are governed by judicial precedents and which it is unnecessary to spell out in this legislation.

The principal feature of admiralty actions, however, has been a distinction between proceedings in rem and proceedings in personam. Admiralty law confers on a claimant a right in rem to proceed against a ship or cargo as distinguished from a right in personam against the owner. The principal characteristics of these types of action have been elucidated in Elizabeth's case, JT 1992 (2) SC 65 and it is unnecessary to elaborate on the same here. As the Court has pointed out:

"The admiralty action in rem, as practised in England or in the United States, is not followed by many States. In the countries following the civil law, all proceedings are initiated by an action in personam. The Court having competence in the matter has the power to order an attachment of the ship if it is convinced that the plaintiff is likely to lose his security unless the ship is detained within jurisdiction. The hands of the court are not fettered by the technicalities of an action in personam and the scope of the proceedings are not limited to maritime liens or claims.

The real purpose of arrest in both the English and civil law systems is to obtain security as a guarantee for satisfaction of the decree, although arrest in England is the basis of assumption of jurisdiction, unless the owner has submitted to jurisdiction. In any event, once the arrest is made, and the owner has entered appearance, the proceedings continue in personam. All actions in the civil law whether maritime or not-are in personam and arrest of a vessel is permitted even in respect of non-maritime claims. Admiralty actions in England, on the other hand, whether in rem or in personam are confined to well defined maritime liens or claims and directed against the res (ship, cargo and freight) which is the subject-matter of the dispute or any other ship in the same beneficial ownership as the res in question."

In the light of these observations and having regard to the importance, in maritime matters, of an effective remedy against the ship, we have proposed to retain the distinction between an action in rem and an action in personam. But at the same time, the proposed enactment confers discretion to the Court to decide the more appropriate form of action in any particular case at any stage, make appropriate directions and orders and grant necessary relief so as to ensure that technicalities as to the form of action do not defeat the valid claims and rights of parties'1 Supplementary provisions have been included to ensure, inter alia, that the admiralty jurisdiction includes the jurisdiction to entertain a claim for wages in relation to an Indian ship2.

Provisions have been included in respect of the effect of a sale as well as the manner of distribution of the proceeds of the sale of any ship or property and the order of priority of claims in regard thereto3.

Priority has been accorded to the wages and other sums due to the crew on a ship, the wages for a period of six months receiving a higher priority than the balance of the wages so due4. The topic of attachment of maritime liens and their extinguishment has been dealt with5. Also included is a power conferred on the Central Government to make rules governing procedure and practice in the Courts in admiralty matters, including court fees and costs6.

1. Proposed Admiralty Act at Annexure VIII, section 8.

2. Id., section 9.

3. Id., sections 10, 11, 12.

4. Id., section 12(2)(b).

5. Id., section 13.

6. Id., section 19.

8.9. The procedure in admiralty matters will be the same as that in suits and interlocutory applications in civil courts. The Code of Civil Procedure (V of 1908) will, therefore, be applicable, as far as may be to these proceedings. However, having regard to the position that sometimes difficult issues involving technical appraisal may arise, a provision has been made enabling the court to avail the assistance of assessors whenever necessary. A provision for a first appeal and a provision enabling reference to arbitration have also been included in the proposed legislation1.

1. Proposed Admiralty Act at Annexure VIII, sections 15 to 18.

8.10. It is necessary to refer to one more aspect at this juncture. The existing statutes contain certain provisions which need to be noted. The Merchant Shipping Act, 1958 contains a definition of 'High Court' in relation to jurisdiction and also enacts provisions authorising the detention of a foreign ship1. The Indian Carriage of Goods by Sea Act, 1925 contains provisions imposing certain liabilities and responsibilities and conferring certain rights immunities on the carrier.

We have left these provisions untouched as they do not directly impinge on the subject-matter of the draft legislation proposed by this report, and they can be considered when these Acts are taken up for revision. The proposed legislation, however, calls for the repeal of certain existing statutes and a recommendation and provision to this effect have been made2.

1. Sections 3(15), 342 of the Merchant Shipping Act, 1958.

2. Proposed Admiralty Act at Annexure VIII, section 20.

8.11. The above broad outline of the draft legislation proposed will, we hope, facilitate a proper appreciation of the provisions of the draft (Annexure VIII).

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