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Report No. 151

10.5. The Commission has earlier pointed out that once a foreign ship is arrested in Indian waters by an order, the High Court, in exercise of the admiralty jurisdiction vested in it by statue, or inherent in it as a court of record, in respect of any maritime claim against its owner, wherever the cause of action may have arisen, and whether or not the ship is subsequently released by the owner on furnishing security, proceedings must continue against the owners as in any other suit.

The arrest of the vessel while in Indian waters by an order of the concerned High Court attracts the jurisdiction of the competent court to proceed with the trial as in the case of any other suit, as an action against the owner, and any decree obtained by the plaintiff should be executable against any property of the owner available within its jurisdiction, including the security furnished by him for release of the vessel.

However, as discussed earlier, it is recommended that the question whether any action should be instituted or permitted to continue in rem or in personam should be left to the concerned High Court which will examine each case on its merits and take appropriate action in the interests of justice. This aspect and other recommendations as to the nature and extent of court's jurisdiction in admiralty matters have been discussed in detail in Chapter 9.

10.6. Reference has been made earlier in the report to a question of delay in courts focussed by the Parveen Singh Committee. This has been dealt with in detail earlier in Chapter 9. As a further step to counter the problems of delay, we recommend the incorporation of a provision for arbitration in proceedings in admiralty matters which, we .expect, will prove effective in the atmosphere currently prevalent everywhere reflecting a tendency to settle disputes by arbitration in preference to litigation. Another special feature of the proposed legislation is a provision on the line of section 140 of the Code of Civil Procedure enabling the Court to avail of the assistance of assessors in technical matters.

10.7. In the light of the discussions contained in earlier Chapters of this report, it is also recommended-

(i) that the wide range of subjects now definitely within Indian Admiralty Jurisdiction, particularly those relating to maritime crimes, contracts, torts, etc. should continue with the admiralty courts;

(ii) that the Indian Admiralty Courts extend the jurisdiction to all waters that are infect navigable regardless of whether they are influenced by the tide or landlocked or open, or salt or fresh;

(iii) that the Indian Admiralty Jurisdiction extend to all ships on the High Seas (except sovereign ships) and over injurious acts done on the High Seas if any Indian element is involved.

10.8. A draft legislation, incorporating the above recommendations and suggestions, is annexed to the Report. In preparing this draft, due regard has been taken of the various provisions contained in the draft Admiralty Act of India proposed by the Parveen Singh Committee as well as the relevant provisions of the British Statute on the subject viz., Supreme Court Act, 1981. No elaborate discussion of the various provisions of the draft legislation is, however, entered upon here as the draft enactment only embodies the conclusions earlier discussed in detail in this report.

10.9. It is necessary to point out that in case the draft legislation proposed is accepted and enacted, certain existing legislations on the subject would become redundant. It is, therefore, recommended that the following Acts should be repealed:

1. Admiralty Offences (Colonial) Act, 1849;

2. Admiralty Jurisdiction (India) Act, 1860;

3. Admiralty Court Act, 1861;

4. Colonial Courts of Admiralty (India) Act, 1891;

5. Clauses pertaining to admiralty jurisdiction in the Letters Patent relating to the High Courts of Bombay, Calcutta & Madras. A provision to this effect has been included in the draft legislation.

10.10. Substantially speaking, our major recommendations are two in number:

(i) a legislation dealing with the courts to exercise jurisdiction on admiralty powers and the nature and extent of their jurisdiction on the lines embodied in Annexure VIII to this Report be enacted; and

(ii) a Committee of high departmental officials be set up to review the process of implementation of international conventions, protocols and agreements and expedite the same.

Both these reforms are long overdue, and their urgency has also been emphasized by the Supreme Court in Elizabeth's case, JT 1992 (2) SC 65. We hope the government shall give top priority to this Report and take expeditions action in pursuance thereof.

Justice K.N. Singh, Chairman.

Justice S. Ranganathan, Member.

Prof. D.N. Sandanshiv, Member.

P.M. Bakshi, Member (Part-time).

M. Marcus, Member (Part-time).

Ch. Prabhakara Rao, Member-secretary.

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