Report No. 151
4.6. As observed earlier, the question relating to the extent of admiralty jurisdiction came up for consideration after the promulgation of the Constitution before the Calcutta and the Bombay High Courts. Though the admiralty jurisdiction has been extended to a considerable extent in England by the laws made by the British Parliament but since these laws could not be made applicable to India the admiralty jurisdiction of the High Courts continued to remain the same as conferred on them by 1891 Act.
The Calcutta High Court dismissed a suit for a claim for necessaries supplied in the port at Calcutta to a ship registered in Madras and the owner of which was domiciled in India on the ground that since the owner of the ship had domiciled in the country, the supplier could seek his remedy by the ordinary process of law in the ordinary civil courts.
While considering the extent of the admiralty jurisdiction of the Calcutta High Court. Justice Mukherjee held that in view of the Admiralty Court Act, 1861, the jurisdiction of the Calcutta High Court was limited1. The Calcutta High Court in an earlier case of Madras Steam Navigation Company Ltd. v. Shalimar Works Ltd., AIR 1915 Cal 681, had interpreted the extent of admiralty jurisdiction, in a restrictive manner by referring to clause 2(3)(a) of the Colonial Courts of Admiralty Act, 1890.
1. Thyaswal Shipping Co. v. S.S. Leelawati, AIR 1954 Cal 413.
4.7. The Bombay High Court1 discussed the scope, nature and extent of admiralty jurisdiction of that court with particular reference to the torts committed on the high seas. The Court after a detailed consideration of the admiralty law in England and India held that the High Court of Bombay enjoyed the same admiralty jurisdiction after the promulgation of the Constitution, as enjoyed by it earlier as the High Courts of Admiralty Jurisdiction in England had exclusive jurisdiction in regard to certain matters.
Again in Kashi Bai v. S.S. Navigation, AIR 1961 Born 200, Justice Shah considered the origin and continuity of the admiralty jurisdiction of the Bombay High Court. The learned Judge held that a suit for damages in rem in respect of loss of life as a result of collision on the high seas fell within the exclusive jurisdiction of admiralty side of the High Court.
1. Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd., AIR 1961 Born 186.
4.8. The views of the Calcutta, Bombay and Madras High Courts were followed later by the same High Courts1 as well as by other High Courts2. No doubt, in these decisions the existence and continuance of admiralty jurisdiction of the chartered High Courts was not disputed in respect of certain dispute, but with regard to extent of jurisdiction of the High Courts in India there was considerable doubt.
The view taken in the Calcutta and Bombay decisions indicated that the admiralty jurisdiction of the High Courts in India did not exist beyond the ambit of the English Act of 1861 and that the expansion of the jurisdiction of admiralty courts in England by later British statutes did not have a similar effect of expanding the jurisdiction of the Indian High Courts. Consequently, no High Court in India acting in admiralty jurisdiction could order arrest or detention of a foreign ship in an action in rem in respect of a cause of action relating to outward cargo, as distinguished from inward cargo.
1. Sahida Ismail v. Pekto R. Salvej Kov, AIR 1973 Born 18, and Rungta Sons P. Ltd. v. S.S. Edison Mariner, (1961-62) 66 CWN 1083.
2. Reena Padhi v. Jagdhir, AIR 1982 Ori 57.
4.9. The restrictive interpretation made by the High Courts limited the admiralty jurisdiction in India. Fortunately, this question was considered in detail by the Supreme Court in the case of M.K. Elizabeth v. Harzvan Investment & Trading Co., JT 1992 (2) SC 65.
The Apex Court examined the various Acts in detail and thereupon it upheld the admiralty jurisdiction of the Indian High Courts. In the case before the Supreme Court, the plaintiff with its registered office at Goa, had filed a suit for action in rem invoking the admiralty jurisdiction of the Andhra Pradesh High Court against the defendants' ship and its owner on the ground that the defendant had acted in "breach of duty" by leaving the port without issuing bills of lading or other documents for the goods shipped as required by the plaintiff shipper and further in discharging the goods and delivering them to the consignee inspite of the directions of the plaintiff not to do so as the price had not been paid.
The defendant raised preliminary objection on the ground that the plaintiffs suit against foreign ship owned by a foreign company not having a place of residence or business in India was not liable to be proceeded against in the admiralty jurisdiction of the High Court by an action in rem in respect of a cause of action having arisen in tort or for a breach of obligation arising from the carriage of goods from a port in India to a foreign port. The High Court rejected the objection and the Supreme Court in appeal upheld the High Court's decision. Thommen, J. dealing with the extent of admiralty jurisdiction spoke thus:
"It is likewise within the competence of the appropriate Indian Courts to deal, in accordance with the general principles of maritime law and the applicable provisions of statutory law, with all persons and things found within their jurisdiction. The power of the court is plenary and unlimited unless it is expressly or by necessary implication curtailed. Absent such curtailment of jurisdiction, all remedies which are available to the courts to administer justice are available to a claimant against a foreign ship and its owner found within the jurisdiction of the concerned High Court. This power of the court to render justice must necessarily include the power to make inter-locutory orders for arrest and attachment before judgment."1
1. JT 1992 (2) SC 94.
Referring to Admiralty Act of 1890, the learned Judge observed:
"In equating the admiralty jurisdiction of the Indian High Court to that of the English High Court, the Colonial Court of Admiralty Act, 1890 significantly refers to the admiralty jurisdiction of the High Court in England whether existing by virtue of any statute or otherwise. This is an enabling statute and not a statute of limitation of power. It aids, and does not fetter, the growth of jurisdiction.
There is no reason why the words "Statute or otherwise" should be so construed as to exclude the various sources from which the admiralty jurisdiction in England developed. Apart from statutes the powers of that Court, as seen above, were derived from custom and practice and the principles developed by common law and equity as well as by the generally recognized principles of civil law developed and practised in Europe.
There is no reason, as rightly stated by Westropp. C.J. of the Bombay High Court in Bardot, (supra), why the expression statute or otherwise should be so construed as to exclude all these vast areas of legal principles which enriched and strengthened the maritime laws of England. Likewise, there is no reason why those principles should not be drawn upon to enrich and strengthen the jurisprudence of this country, even if the jurisdiction of our courts were to be by compulsions of history, considered to be curtailed and dovetailed to the colonial past a proposition which is neither correct nor consistent with our status as a sovereign republic."1
In upholding the admiralty jurisdiction of the High Courts in India on the ground of their being superior courts and enjoying unlimited jurisdiction under the Constitution, Thommen, J. placed strong reliance on a decision of the U.S. Supreme Court in The Schooner Exchange v. M'Faddon, U.S. Supreme Court Reports, Cranch 5-9, p. 114, 133 (3 L. Edn. 287) and observed:
"Admiralty Jurisdiction is an essential aspect of judicial sovereignty which under the Constitution and the laws is exercised by the High Court as a superior court of record administered justice in relation to persons and things within its jurisdiction. Power to enforce claims against foreign ships is an essential attribute of admiralty jurisdiction and it is assumed over such ships while they are within the jurisdiction of the High Court by arresting and detaining them."
1. Id., at p. 95.
4.10. Before the Supreme Court an important question was raised as to whether the Andhra Pradesh High Court, not being a chartered High Court had jurisdiction in admiralty matters. The Supreme Court held that since the Andhra Pradesh High Court was successor to the Madras High Court, it had the admiralty jurisdiction. But the question whether other High Courts of India which are non-chartered High Courts have also the admiralty jurisdiction was not decided expressly although the observations made by the Supreme Court make it amply clear that the High Court being superior Court of record constituted by the Constitution has unlimited civil and appellate jurisdiction subject to statutory restrictions if any.
The Court further ruled that the High Courts in India after the promulgation of the Constitution have Admiralty Jurisdiction uninhibited by the limitation of High Courts power in England under the 1861 Act. In this view there is need to codify the law conferring power on all High Courts to exercise admiralty jurisdiction. The mode, manner and procedure for exercise of power under their jurisdiction has to be laid down by law bearing in mind the international practice and conventions. The details of the proposed legislation will be considered in the subsequent Chapters.