http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 50  

PETITIONER: M.V. ELISABETH AND ORS.

       Vs.

RESPONDENT: HARWAN INVESTMENT AND TRADING PVT. LTD., HANOEKARHOUSE, SWAT

DATE OF JUDGMENT26/02/1992

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SAHAI, R.M. (J)

CITATION:  1993 AIR 1014            1992 SCR  (1)1003  1993 SCC  Supl.  (2) 433 JT 1992 (2)    65  1992 SCALE  (1)490

ACT:     Constitution of India, 1950:     Articles 215, 225 and 226-Admiralty jurisdiction of High Courts-Claims  against  foreign vessel-Cargo  going  out  of India-Action in rem-Inherent jurisdiction-Whether extends to claim  relating inward and outward cargo-Whether extends  to such foreign vessel and the arrest thereof.     Article 372:     Recommendations   of   Law   Commission   relating    to comprehensive  Law  on  courts  of  admiralty-No  subsequent legislation  passed-Continue to be governed by  legislations enacted  for colonies by British Parliament-Urgent need  for legislative action-Stressed.     Andhra State Act, 1953:     Section 30,52-Admiralty jurisdiction of the High  Court- Concept    and   continuance   of-Whether   the    admiralty jurisdiction extends to a foreign vessel in respect of claim relating  to carriage of goods from Indian port  to  foreign port.     Merchant Shipping Act, 1958:     Section 3(15), 443 and 444-Detention of foreign  vessel- ‘Damage’-What is-Whether confined to physical damage or wide enough to include all maritime claims.     Admiralty Court Act, 1861:     Admiralty jurisdiction-Applicability in India-Powers  of admiralty  courts-Whether  frozen  as on  the  date  of  the passing of the Act-Subsequent changes in law-Effect  of-Need for  updating and enacting new legislation keeping  in  view the rights of citizens of Indian Sovereign Republic.                                                        1004     Words & Phrases:     ‘Damage’  occurring  in  Section  443  of  the  Merchant Shipping Act, 1958-Meaning of.

HEADNOTE:     The  appellant  vessel, which was lying in the  port  of Marmagao,  left the port without issuing bills of lading  or other  documents required by the Respondent company for  the goods  shipped by it. On reaching the port  of  destination, despite  the  direction  of the respondent  company  not  to deliver  the goods by reason of the buyer’s failure  to  pay

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 50  

the  agreed price, the appellants handed over the  goods  to the consignee. Since the appellants acted in breach of  duty thereby  committing  conversion of the  goods  entrusted  to them,   the  respondent  instituted  a  suit   against   the appellants invoking the admiralty jurisdiction of the Andhra Pradesh High Court by means of an action in rem. The  vessel was arrested when it entered the port of Vishakapatnam,  and later released on the owner’s furnishing security by way  of Bank guarantee.     In the proceedings before the High Court, the  appellant raised  a preliminary objection as to  jurisdiction  stating that  the  suit against a foreign ship owned  by  a  foreign company  not  having  a place of residence  or  business  in India,  could not proceed on the admiralty side of the  High Court by an action in rem in respect of a cause of action by reason of a tort or a breach of obligation arising from  the carriage  of  goods from an Indian port to a  foreign  port. This  objection was overruled by a Single Judge of the  High court and later confirmed by a Division Bench, against which the present appeal has been preferred.     Finally  the suit was decreed by a Single Judge and  the appeal therefrom is the subject matter of the other   matter before this Court, viz., the Transfer Petition.     On  behalf of the appellants it was contended  that  the power of the High Court on the admiralty  side was  confined to  the  provisions of the Admiralty Court  Act,  1861  made applicable to India by the Colonial Courts of Admiralty Act, 1890 read with the Colonial Courts of Admiralty (India) Act, 1891   declaring   certain   Courts   of   unlimited   civil jurisdiction  as  Colonial  Courts  of  Admiralty,  but   it remained frozen as on the date of Admiralty Court Act, 1861; that the wide powers assumed by the British Courts under the subsequent statutes of that country did not enlarge the                                                        1005 admiralty  jurisdiction  of the High Court  in  India;  that section  6  of  the  Admiralty Court  Act,  1861,  the  only provision relating to cargo, confined itself to inward cargo only, and therefore the case did not fall under the ambit of section  6 of the Act; and that the arrest of the vessel  in purported   exercise  of  admiralty  jurisdiction   in   rem concerning  a claim relating to outward cargo, was null  and void.     On behalf of the respondents it was contended that every person  has  a right to approach the Court of the  land  for appropriate  remedy in respect of claims against  a  foreign ship and its owner, and to deny him that right and to compel him  to pursue remedy in a foreign country according  to  an unfamiliar  system  of  law  and  practice  in  strange  and uncertain   conditions  and  consequently   incurring   high expenses  with all the uncertainties of such a pursuit,  was unjust  and uncalled for; that all major systems of law  the world over recognise the competence of the coastal State  to assume  jurisdiction  over  a  foreign  ship  entering   its waters  in  respect  of  certain  well  recognised   claims, irrespective of where the cause of action arose or where the defendant  has his place of residence or business; that  the reason for such wide jurisdiction being the non-availability of the foreign owner within the local jurisdiction, and  the stay of the foreign ship in the waters of the coastal  State being  necessarily brief, jurisdiction over the ship has  to be  exercised  by its arrest and detention by  means  of  an action  in rem; that the High Court being a court of  record with  unlimited jurisdiction, it was never intended  by  the British  Parliament  that the admiralty power  conferred  on certain  High Courts should remain frozen as on the date  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 50  

the  passing of the Admiralty Court Act, 1861 and  that  the subsequent  changes in the law of Great Britain  should  not widen  the jurisdiction of the Indian High Courts; and  that the colonial statutes should not be so construed as to stand in  the way of the Indian High Courts  exercising  unlimited jurisdiction   except  where  the  jurisdiction  is   barred expressly or by necessary implication.     Dismissing the appeal and returning the Transferred Case to the High Court, this Court,     HELD : (By the court) :     The  High Court of Andhra Pradesh undoubtedly  possesses jurisdiction  over  claims relating to  inward  and  outward cargo. Therefore the High Court rightly assumed jurisdiction by the arrest of the appellant vessel                                                        1006 while it was lying in the port of Vishakhapatnam.     (Per Thommen, J) :     1. The Andhra Pradesh High Court is the successor to the Madras High Court in respect of the territories  transferred from  Madras and included in the State of Andhra  which  was formed  by  the  Andhra  State Act, 1953.  In  the  port  of Vishakhapatnam  the Andhra Pradesh High Court has  thus  the same  jurisdiction  as was vested in the Madras  High  Court prior to the transfer of that territory. [1021D; 1022A]     2.1.  The  fact that the High Court continues  to  enjoy the  same  jurisdiction  as it had  immediately  before  the commencement  of the Constitution, as stated in Article  225 of  the  Constitution does not mean that a matter  which  is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt  with by the High Court, subject to its own Rules,  in exercise of its manifold jurisdiction, which unless  barred, is  unlimited.  To  the extent not barred  expressly  or  by necessary  implication,  the judicial  sovereignty  of  this country is manifested in the jurisdiction vested in the High Courts as superior courts. [1024E,F].     2.2.  It is true that the Colonial statutes continue  to remain in force by reason of Article 372 of the Constitution of  India, but that does not stultify the growth of  law  or blinker  its  vision  or fetter its  arms.  Legislation  has always marched behind time, but it is the duty of the  Court to  expound  and  fashion the law for the  present  and  the future to meet the ends of justice. [1026B,C]     Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd.,  AIR 1961 Bombay 186; Mrs. Sahida Ismail v.  Petko  R. Salvejkov  &  Ors., AIR 1973 Bombay  18;  Jayaswal  Shipping Company  v.  S.S. Leelavati, AIR 1954 Calcutta  415;  Rungta Sons Pvt. Ltd. & Anr. v. S.S. Edison Mariner & Anr., 1961  - 62  (66)  Calcutta Weekly Notes 1983; Smt.  Reena  Padhi  v. Jagdhir,  AIR  1982  Orissa 57; National Co.  Ltd.  v.  Asia Mariner, 72 CWN 635, overruled.     3.  What the Colonial Courts of Admiralty Act, 1890  did was  not to incorporate any particular English Statute  into Indian   law  for  the  purpose  of  conferrring   admiralty jurisdiction,  but  to assimilate the  competent  Courts  in India  to  the  position of the English High  Court  in  the exercise                                                        1007 of admiralty jurisdiction. It would, therefore, appear  that any  expansion of Admiralty jurisdiction of the  High  Court in English was intended likewise to expand the  jurisdiction of  the Colonial Courts of Admiralty. This should have  been regarded as the position with respect to a Colonial Court of unlimited jurisdiction. [1027H; 1028A,B]     The Yuri Maru v. The Woron, [1927] AC 906, referred to.     4.  It was because of the unlimited  civil  jurisdiction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 50  

that  was already vested in the High Courts that  they  were declared to be Colonial Courts of Admiralty having the  same jurisdiction in extent and quality as was vested in the High Court  of  England by virtue of any statute or  custom.  The High Courts were declared to be competent to regulate  their procedure and practice in exercise of admiralty jurisdiction in accordance with the Rules made in that behalf. There  is, therefore, neither reason nor logic in imposing a fetter  on the jurisdiction of these High Courts by limiting it to  the provisions  of an imperial statute of 1861 and freezing  any further  growth of jurisdiction. This is all the  more  true because  the  Admiralty  Court Act, 1861  was  in  substance repealed in England a long time ago. [1029F-H]     Halsbury’s  Laws  of England, 4the Ed. Vol.  1(1),  para 307;  Halsbury’s  Statutes  of  England,  Vol.  1,  para  9, referred to.     5. The wide jurisdiction vested in the English Courts is derived from ancient principles of Maritime Law developed by custom and practice as well as from subsequent statutes many of  which  have  been  incorporated  in  the  provisions  of International  Conventions  unifying the laws  practised  in several maritime countries. [1032E-F]     The  Geetano  and  Maria, (1862) 7  PD;  The  Gas  Float Whitton, N.2 (1896), referred to.     A  History  of  English Law,  Vol.1,5  and  8;  Rescoe’s Admiralty Practice, 5the Ed.; Marsden : Select Pleas of  the Court  of Admiralty, Vol.I & II; Law and Custom of the  Sea, Vol.I  and II; Benedict on admiralty, 6th Ed. (1940)  Vol.I; Gilmore  and Black, Law of Admiralty, (1957); A  History  of English  Law, W.S. Holdsworth, Vol. I, pp. 558-59,  referred to.     6. The provision contained in section 6 of the Admiralty Court  Act, 1861 limiting the jurisdiction of the  Admiralty Court to claims respecting inward cargo was discarded by the Administration of Justice Act, 1920                                                        1008 which  extended  the jurisdiction of the High Court  to  (a) any claim arising out of an agreement relating to the use or hire  of a ship; (b) any claim relating to the  carriage  of goods  in any ship, and (c) any claim in tort in respect  of goods  carried  in any ship. The Act thus  applied  to  both inward and outward cargoes. [1034B,C]     7. The vital significance and the distinguishing feature of an admiralty action in rem is that this jurisdiction  can be  assumed  by the coastal authorities in  respect  of  any maritime  claim by arrest of the ship, irrespective  of  the nationality of the ship or that of its owners, or the  place of  business or domicile or residence of its owners  or  the place  where  the cause of action arose wholly or  in  part. [1038E-F]     The Fehmarn, (1958) I All E.R. 333, referred to.     Halsbury,  op.  cit. 4th Ed. Vol. I(1)  para  309;  D.C. Jackson, Enforcement of Maritime Claims, (1985); Gilmore and Black,  The  Law  of Admiralty, p. 1; The  Law  of  American Admiralty, 6th Ed. Vol. I p.3; Rescoe’s Admiralty  Practice, 5th Ed. p.29, referred to.     8. It is 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.   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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 50  

High  Court. This power of the court to render justice  must necessarily  include the power to make interlocutory  orders for arrest and attachment before judgment. [1046B-D]     The  Bold  Buccleaugh, [1851] 7 Moo. PC 267;  The  Jade, [1976] I All. E.R. 921, 923; Currie v. M. Knight, [1897]  AC 97;  Bardot & Anr. v. The American Ship or  Vessel  Augusta, 1873 (x) Bombay High Court Reports, 110, referred to.     Enforcement  of Maritime Claims, 1985 p.  9;  Halsbury’s Laws  of England, 4th Ed. Vol.I p. 375; Halsbury’s  Laws  of England, Vol.1, para 307; referred to.     9.  The  High  Court in India  are  superior  courts  of record. They have                                                        1009 original and appellate jurisdiction. They have inherent  and plenary  powers. Unless expressly or impliedly  barred,  and subject  to the appellate or discretionary  jurisdiction  of this  Court,  the High Courts have  unlimited  jurisdiction, including  the jurisdiction to determine their  own  powers. [1046D-E]     Naresh Shridhar Mirajkar & Ors. v. State of  Maharashtra JUDGMENT:     Raja Soap Factory and Ors. v. S.P. Shantharaj and  Ors., [1965] 2 SCR 800, distinguished.     Halsbury’s  Laws of England, 4th Ed. Vol.10,  para  713, referred to.     10. In the instant case, the Andhra Pradesh High  Court, as a successor to the Madras High Court, is vested with  all the appellate and original jurisdiction, including admiralty jurisdiction  to order the arrest and detention of  a  ship. [1047A-B]     11. 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 were  derived from  custom  and practice and the principles  developed  by common law and equity as well as by the generally recognised principles  of civil law developed and practised in  Europe. There  is no reason why those principles should also 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. It is time to take a fresh look at  the old precedents. [1047D-H; 1048A]     Delhi  Judicial Service Association, Tis  Hazari  Court, Delhi  v. State of Gujarat & Ors. JT 1991 (3) SC  617;  S.P. Gupta v. Union of India, [1982] 2 SCR 365, relied on.                                                        1010     12.  It  is well recognised in iternational law  that  a merchant ship, though generally governed by the laws of  the flag State, subjects itself to the jurisdiction of a foreign State as it enters its waters. The Geneva Convention on  the Territorial Sea and the Contiguous Zone, 1958 and the Law of the  Sea Convention, 1982 affirm that the sovereignty  of  a State  extends  over its internal  and  territorial  waters. [1048D]     The Schooner Exchange v.M. Faddon & Ors., [1812] 11 U.S.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 50  

(7 Cranch) 114, 143, referred to.     Nagendra Singh, International Maritime Law  Conventions, British  Shipping  Laws;  Benedict,  The  Law  of   American Admiralty, 6th Ed. pp. 121 & 122, referred to.     13.  Coastal States are entitled to assume  jurisdiction in respect of maritime claims against foreign merchant ships lying in their waters. These ships are liable to be arrested and  detained  for the enforcement of maritime  claims.  The courts  of  the  country in which a foreign  ship  has  been arrested  may  determine  the  cases  according  to  merits, provided they are enpowered to do so by the domestic law  of the  country  or  in  any of the  cases  recognised  by  the International Convention relating to the Arrest of  Seagoing Ships,  Brussels,  1952. The maritime claims in  respect  of which  the  power  of arrest is recognised  in  law  include claims  relating  to  damage caused by any  ship  either  in collision or otherwise; claims relating to carriage of goods in  any ship whether by charterparty or otherwise,  loss  of or  damage to goods etc. These principles  of  International law,  as  generally recognised by nations,  leave  no  doubt that, subject to the local laws regulating the competence of courts,  all  foreign  ships lying within the  waters  of  a State,  including waters in ports, harbours, roadsteads  and the   territorial   waters,  subject   themselves   to   the jurisdiction of the local authorities in respect of maritime claims   and  they  are  liable  to  be  arrested  for   the enforcement of such claims. [1049C-F]     14. In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is  no reason why the words ‘damage caused by a ship’ appearing  in section 443 of the Merchant Shipping Act, 1958 should be  so narrowly  construed as to limit them to physical damage  and exclude any other damage arising by reason of the  operation of the vessel in connection with the carriage of goods. The                                                        1011 expression is wide enough to include all maritime  questions or  claims. If goods or other property are lost or  damaged, whether  by  physical  contact or otherwise,  by  reason  of unauthorised  acts or negligent conduct on the part  of  the shipowner  or his agents or servants, wherever the cause  of action  has arisen, or wherever the ship is  registered,  or wherever the owner has his residence or domicile or place of business,  such  a  ship,  at  the  request  of  the  person aggrieved, is liable to be detained when found within Indian jurisdiction  by  recourse to sections 443 and  444  of  the Merchant Shipping Act, 1958 read with the  appropriate rules of   practice  and  procedure  of  the  High  Court.   These procedural  provisions  are  but tools  for  enforcement  of substantive rights which are rooted in general principles of law, apart from statutes, and for the enforcement of which a party   aggrieved  has  a  right  to  invoke  the   inherent jurisdiction of a superior court. [1054G; 1055A-D]     Victoria, 1887 12 PD 105; The Vera Cruz, (1884) 9 PD 96; Currie  v. M.Knight, (1897) AC 97; The Jade, (1976)  1  All. E.R. 920, referred to.     Halsbury’s  Laws of England, 4th Ed. Vol.I(1), para  319 N. 12, referred to.    15. The Merchant Shipping Act empowers the concerned High Court to arrest a ship in respect of a substantive right.  A right conferred by the Indian Carriage of Goods by Sea  Act, 1925  in  respect of outward cargo is one  of  those  rights which can be enforced by arrest and detention of the foreign ship in order to found jurisdiction over the vessel and  its owners, just as it can be done in respect of inward cargo by reason of the substantive rights conferred by the  Admiralty

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 50  

Court  Act, 1861 read with the Colonial Courts of  Admiralty Act,  1890, and other rules of law. The same principle  must hold good for carriage under a charterparty. These and other laws,  such as the law of contract, tort,  crime,  mortgage, marine  insurance,  customs, port operations, etc.  and  the Civil  and Criminal Procedure Codes as well as the  relevant rules  of court regulating procedure and  practice  together constitute  the  body  of substantive  and  procedural  laws governing  claims relating to inward and outward cargo,  and such  claims  are  enforceable  against  foreign  ships   by recourse   to  arrest  and  detention  when   found   within jurisdiction.  Viewed in this light, and by this  reasoning, the Andhra Pradesh High Court, as a successor to the  Madras High Court, does not lack admiralty jurisdiction in  respect of claims to outward cargo. [1056A-D]                                                        1012     16.  The jurisdictional questions concerning  arrest  of foreign  ships enforcement  of claims against the  shipowner as a transporter of goods, which in England are regulated by the  Supreme  Court  Act, 1981, are in  many  respects  left unregulated  by Indian legislation. While the provisions  of various  international  conventions  concerning  arrest   of ships, civil and penal jurisdiction in matters of collision, maritime  liens  and mortgages etc. have  been  incorporated into the municipal laws of many maritime States, India, lags behind  them in adopting these unified rules. By  reason  of this void, doubts about jurisdiction often arise, as in  the present  case,  when  substantive  rights,  such  as   those recognised  by the Carriage of Goods by Sea Act, are  sought to  be  enforced. The remedy lies,  apart  from  enlightened judicial  construction,  in  prompt  legislative  action  to codify and clarify the admiralty laws of this country.  This requires  thorough  research and investigation by a team  of experts  in admiralty law, comparative law, and  public  and private   international law. Any attempt to  codify  without such investigation is bound to be futile. [1056H; 1057A-C]     17.  The  judicial power of this country,  which  is  an aspect of national sovereignty, is vested in the people  and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is  absurd  to  confine  that power  to  the  provisions  of imperial statutes of a bygone age. Access to court which  is an  important  right  vested in every  citizen  implies  the existence  of  the  power of the  Court  to  render  justice according  to  law.  Where statute is  silent  and  judicial intervention   is   required,  Courts  strive   to   redress grievances  according to what is perceived to be  principles of justice, equity and good conscience. [1058E,F]     S.P.  Gupta v. Union of India, [1982] 2 SCR 365,  relied on.     The  Schooner Exchange v. M’Faddon & Ors., U.S.  Supreme Court Reports, Cranch 5-9 P. 114, referred to.     18. All persons and things within the waters of a  State fall  within its jurisdiction unless specifically  curtailed or  regulated  by rules of international law. The  power  to arrest  a  foreign  vessel, while the waters  of  a  coastal State, in respect of a maritime claim, wherever arising,  is a  demonstrable manifestation and an essential attribute  of territorial sovereignty. This power is recognised by several international  conventions.  These conventions  contain  the unified  rules  of law drawn from different  legal  systems. Although many of these conventions have yet to                                                        1013 be  ratified  by  India,  they  embody  principles  of   law recognised  by  the generally of maritime  States,  and  can

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 50  

therefore  be  regarded  as  part  of  our  common  law.   A specialised   body  of  legal  and  technical  experts   can facilitate  adoption  of internationally  unified  rules  by national  legislation.  It is  appropriate  that  sufficient attention  is  paid  to this aspect of  the  matter  by  the concerned authorities. Perhaps the Law Commission of  India, endowed as it ought to be with sufficient authority,  status and  independence as is the position in England, can  render valuable help in this regard. [1059D-H; 1060A]     19.  The jurisdiction of the High Court is  governed  by the Constitution and the laws, and the continuance in  force of  the  existing  laws is not a fetter  but  an  additional source of power. Access to court for redressal of  grievance being  an important right of every person, it  is  essential that the jurisdiction of the court is construed harmoniously and consistently with its vital function in that respect, so that absence of legislation will not jeopardise that  right. [1060C,D]     20. Once a foreign ship is arrested in Indian waters  by an  order  of the High Court, in exercise of  the  admiralty jurisdiction vested in it by statute, 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 furnishing security, proceedings must continue against the owner as in any other suit. [1060G,H]     21.  All  foreign  ships  entering  Indian  waters   are presumed  to know that they fall within the jurisdiction  of this country during their stay here. It cannot be said  that no   High  Court  in  India  was  invested  with   admiralty jurisdiction to order the arrest of the vessel in respect of a cause of action relating to outward cargo because  section 6  of the Admiralty Court Act, 1861 (read with the  Colonial Courts   of  Admiralty  Act,  1890)   conferring   admiralty jurisdiction  on Indian High Courts confined it  to  ‘claims for  damage  to cargo imported’. In the  instant  case,  the appellant-vessel  was  lying in the port  of  Vishakhapatnam when  she  was  arrested in respect of  a  cause  of  action relating  to  cargo.  The  High  Court,  therefore,  rightly assumed  jurisdiction by the arrest of the vessel  while  it was  lying in the port of Vishakhapatnam, as the High  Court possesses  jurisdiction over claims relating to  inward  and outward cargo. [1061B-E]                                                        1014     (PER SAHAI.J. CONCURRING);     1.1.  The  Law of admiralty  progressed  gradually  from ordinary  courts, to courts of Admiralty and  ultimately  to High  Court commencing in commercial expedience, equity  and justice and ending with statutory enactments covering entire field  from collision on ships to cargo even. All  this  was existing when the 1890 Act was enacted. But the statutes  of 1840  and 1861 were not exhaustive and English courts  could take  cognizance  for  various  wrongs  either  in  tort  or contract.  Therefore  when colonial  courts  were  conferred jurisdiction it was not restricted or confined to  statutes, as the power was being conferred on High Courts which  were, then  and  even  now, not only  courts  of  unlimited  civil jurisdiction   but   higher  courts   possessed   of   every jurisdiction which was not expressly or impliedly  conferred on  other courts. The word ‘otherwise’ literally means in  a different way. Effect of its use in the 1890 Act in law, was to  confer not only statutory jurisdiction possessed  of  by English  courts  but all that which was being  exercised  or was  capable  of  being exercised either  under  custom  and practice  or for sake of equity and justice. The  deliberate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 50  

expansion  of power and jurisdiction after existence of  two statutes  for nearly thirty years was founded on  experience and  necessity of arming the courts for every  dispute  that could  arise relating to Admiralty jurisdiction, as the  law on Admiralty was a growing law. Its development could not be striffled  by  its very nature. It was with  this  intention that the Parliament used the word, ‘otherwise’ in 1890  Act. No word in a statute has to be construed as surplusage.  Nor it  can be rendered ineffective or purposeless.  Courts  are required  to  carry  out the legislative  intent  fully  and completely. The two legislations of 1840 and 1861 took  care of those actions which appeared to be settled till then. But they did not close the door for the growth of law. They were enacted   to  ‘improve  the  Admiralty  practice’   as   the jurisdiction  which  were  conferred by  the  statutes  were already being exercised. Action in personam or rem were  not unknown. It was provided statutory base only. Statutes  till 1920  in  England  were  not  creation  of  new  rights  but recognition  of  what was existing by  practice  or  custom. Thus,  the  jurisdiction to entertain a claim  for  tort  or breach of contract by owner or master of ship while carrying cargo outside the port could be exercised or was capable  of being  exercised  in 1890 by the High Court  of  England  if occasion arose. [1066E-H; 1067A-F]     1.2.   The  rationale  of  extending   jurisdiction   in Admiralty  over  cargo  carried  into  the  port  has   been existence of a right in owner or consignee                                                        1015 arising  out of contract or agreement entered  into  between him  and  the  master  or owner of  the  ship.  It  was  the enforcement of the right which was safeguarded by  providing a  remedy  to arrest a ship if the goods were  carried  into any  port.  Same rationale applies to redress the  owner  of bill  of  lading  if the master of the  ship  in  breach  of agreement  entered  into any port committed tort  by  acting against  it in course of outward journey. Such breach  would have been actionable and a suit could be filed in the  court where agreement was entered. Basis of Maritime Law has  been necessity  to  provide remedy for wrong done on  high  seas. Inclusion  or expansion of jurisdiction was in  relation  to any  cause which could have been cognisable  under  ordinary law.  Bottomrey,  salvage, seaman wages or  towage  are  all causes for which action could be brought in court of law but their  enforcement was rendered illusory with  disappearance of  the person beyond territorial waters. To  overcome  this difficulty  jurisdiction  was created making  it  actionable against  person and finally the res itself. What  was  basic was  the existence of cause of action, arising out  of  tort or contract in relation to the master or owner of the  ship. Applying  this  test, the cause of action  arose  in  Indian territory  and if the owner of the ship would have  remained in  this  country a suit for breach of contract  could  have been  filed. Therefore the owner of bill of lading  was  not precluded  from approaching the Admiralty Court for  redress when  the  foreign  ship  which  was  guilty  of  violations appeared in Indian waters. On this construction the colonial courts  could exercise the jurisdiction in respect of  cargo going outside the port in exercise of jurisdiction under the Act of 1890 not on statutes but as the High Court of England could exercise such power. [1067F-H; 1068A-D]     Yuri Maru; 1927 Appeal cases 906, distinguished.     State of Madras v. C.C. Menon & Ors., [1955] 1 SCR  280, referred to.     The Bold Buccleugh, [1851] 7 Moo. P.C. 267; The  Hailey, L.R.  2 PC 193; The Ironsides, 167 English Reports 205;  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 50  

St. Cloud, 167 English Reports 269; The Norway, 167  English Reports  347; The Hercules, 2 Dod. 371; The Jade,  [1976]  1 All Eng. Reports 921, referred to.     Halsbury’s  Laws  of England, 4th Ed. Vol.  1:  Maritime Liens  by  D.R. Thomas; Maritime Law  by  Christopher  Hill; Carter History of English Courts, referred to.     2.  Without  entering  into  any  comparative  study  of jurisdiction of High                                                        1016 court of England and the High Courts in our country, the one basic  difference  that  exists today is  that  the  English Courts derive their creation, constitution and  jurisdiction from Administration of Justice Act or Supreme Court Act  but the  High  Courts in our country are established  under  the Constitution.   Under   it,  Article   225   preserved   the jurisdiction, including inherent jurisdiction, which existed on the date the Constitution came into force and Article 226 enlarged it by making it not only a custodian of fundamental rights  of  a citizen but as repository power to  reach  its arms to do justice. A citizen carrying on business which  is fundamental  right  cannot be rendered helpless  on  premise that  the  jurisdiction of High Courts stood  frozen  either under   statute  of  England  or  any  custom  or   practice prevailing  there  or  the  High  Court  of  England  cannot exercise  the  jurisdiction.  A citizen  of  an  independent republic  cannot be left high and dry. The  construction  of law  has  to be in consonance with sovereignty of  a  state. The apprehension that assumption of such jurisdiction  would be on general attributes of sovereignty is not well founded. This  coupled  with  expansive jurisdiction  that  the  High Courts  enjoyed in relation to admiralty under the 1890  Act preserved  under  Article 225 of the  Constitution  provided justification  for  direction to arrest the  ship,  for  the tortious act done by master or owner of the ship in  respect of  goods  carried  outside the port even if  there  was  no specific   provision  like  Section  6  of  the  1861   Act. Entertaining  a claim arising out of breach of  contract  in relation  to cargo taken out of any Indian port pertains  to jurisdiction. It must arise out of Statute. But the power to direct  arrest of a ship in exercise of the jurisdiction  is one  relating to competency. The High Courts in India  being courts of unlimited jurisdiction, repository of all judicial powers  under the Constitution except what is  excluded  are competent to issue directions for arrest of foreign ship  in exercise  of  statutory jurisdiction or  even  otherwise  to effectuate the exercise of jurisdiction. [1069F-H; 1070A-F]      3.  In  the  instant case, since  the  jurisdiction  to entertain  a suit on tort or contract in relation  to  cargo going  out of the country in a ship is found to exist  under 1890 Act, the High Court of Andhra Pradesh was competent  to direct arrest of the foreign ship when it appeared in Indian waters. [1070F-G]      4.  In respect of Colonial Courts of Admiralty Act  the Law  Commission recommended that the  necessary  substantive provisions  of the English Statute may be incorporated  into the Act so as to make it the                                                   1017 comprehensive  Indian law relating to courts  of  admiralty. Neither  the  law was made up-to-date  and brought  in  line with  international  conventions on maritime law  passed  in 1952  etc.  nor even the salient features of English law  as amended  by  Administration of Justice Act, 1920,  and  1956 were  adopted.  And rights and interests of citizen  of  the independent  sovereign  state  continue to  be  governed  by legislations enacted for colonies by the British Parliament.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 50  

Various  provisions in the 1890 Act have been  rendered  not only anomalous but even derogatory to the sovereignty of the State.   It is hoped that the unfortunate state  of  affairs shall be brought to end at the earliest.  [1062E-G]

&      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 896  of 1992.                           WITH                    T.C. No. 27 of 1987.      From  the  Judgment and Order dated  26.4.1985  of  the Andhra Pradesh High Court in O.S. Appeal No. 2 of 1984.      Raju   Ramachandran  and  Jagan  Mohan  Rao   for   the Appellants.      G.L. Sanghi, S.K. Mehta, Dhruv Mehta, Aman Vachher  and Arvind Verma for the Respondents.      The Judgment of the Court was delivered by      THOMMEN,  J.   We grant leave in SLP(C)  No.  10542  of 1985  which arises from the order of the Division  Bench  of the  Andhra Pradesh High Court affirming the finding of  the learned Single Judge that the respondent’s suit against  the appellants  was  maintainable and that the  High  Court  was competent  to  try  the same in exercise  of  its  admiralty jurisdiction.   The Transferred Case No. 27 of 1987  is  the appeal  filed by defendents 1 and 2 against the judgment  of the  learned Single Judge of the Andhra Pradesh  High  Court decreeing  the  suit.  The case stood  transferred  to  this Court pursuant to this Court’s Order dated 25.11.1986.      By  our  order dated August 28, 1991 we  allowed  Civil Appeal  No. 3392 of 1991 filed by the 3rd defendant  against the  order  of the High Court dismissing  its  petition  for condonation  of delay in presenting O.S.A.S.R. No. 39789  of 1988  in the High Court.  We held that the appeal  filed  by the 3rd defendant had to be heard on the merits particularly on the question of law regarding the liability of the agent.                                                   1018      We shall now deal with the appeal arising from SLP  (C) No.  10542  of 1985 where the only question is  whether  the learned Judges of the High Court have rightly held that  the respondent’s suit was maintainable in respect of a cause  of action alleged to have arisen on or after 1.2.1984 when  the vessel, M.V. Elisabeth, was lying in the Port of   Marmagao; on  8.2.1984 when the vessel left the Port  without  issuing bills of lading or other documents for the goods shipped  as required  by the plaintiff-shipper; and,  subsequently  when the  goods were discharged and handed over to the  consignee at  the port of destination at Ras-Al-Khaimah,  United  Arab Emirates   during  the  period  from  13.2.84  to   19.2.84, notwithstanding  the  direction  of  the  plaintiff  not  to deliver  the goods by reason of the buyer’s failure  to  pay the  agreed price.  The 1st defendant, M.V. Elisabeth, is  a vessel  of  foreign nationality and it is owned by  the  2nd defendant which is a foreign company carrying on business in Greece,  and  the 3rd defendant is stated to  be  the  local agent of the 2nd defendant at Goa.      The Planitiff  is a private limited company having  its registered office in Goa.  The case of the plaintiff is that the defendants acted in "breach of duty" by leaving the port of  Marmagao  on  8.2.84 and delivering  the  goods  to  the consignee  in  breach of the plaintiff’s directions  to  the contrary,   thereby  committing  conversion  of  the   goods entrusted  with  them. The suit was  instituted  in   Andhra Pradesh  High Court invoking its admiralty  jurisdiction  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 50  

means of an action in rem.  The vessel was arrested when  it entered   the  Port  of  Vishakhapatnam  on  13.4.84   after returning  from foreign ports.  On the owner of  the  vessel entering  appearance and providing security by furnishing  a Bank Guarantee under protest in the sum of Rs. 14,25,000 the vessel was released from detention.      The  defendants moved an application in the High  Court raising a preliminary objection to the jurisdiction of  that Court.   They contended that the plaintiff’s suit against  a foreign  ship owned by a foreign company not having a  place of  residence  or  business in India was not  liable  to  be proceeded against on the admiralty side of the High Court by an action in rem in respect of a cause of action alleged  to have  arisen by reason of a tort or a breach  of  obligation arising from the carriage of goods from a port in India to a foreign  port.   They  did not, however,  contend  that  the alleged cause of action not having arisen in Andhra Pradesh, the  suit  ought not to have been filed in  Andhra  Pradesh. Their sole contention on the question of jurisdiction was as regards the lack of admiralty jurisdiction of any court                                                   1019 in Andhra Pradesh or any other State in India to proceed  in rem  against  the  ship  on  the  alleged  cause  of  action concerning  carriage  of  goods from an  Indian  port  to  a foreign  port.  The preliminary objection was  overruled  by the  learned  the  learned Single Judge and  his  order  was confirmed  by  the learned Judges of the Division  Bench  by their  order which is challenged in S.L.P.(C) No.  10542  of 1985.   The suit was finally decreed by the  learned  Single Judge and appeal therefrom is the subject-matter of the case transferred to this Court.      The   crucial  question  for  our   consideration   is, therefore, the dispute about jurisdiction.  If that question were to be answered in favour of the defendants, it would be unnecessary  to  express  any  view on  the  merits  of  the Transferred  Case,  for  the suit itself  would  then  stand dismissed.      Mr.  Raju Ramachandran, appearing  for  the  appellants (defendants),   raises  a fundamental objection  as  to  the assumption of admiralty jurisdiction over a foreign ship  in respect  of a claim arising in connection with the  carriage of  goods from an Indian port to a port outside India.   The High  Court,  he says, ordered the arrest of the  vessel  in purported  exercise  of its  jurisdiction on  the  admiralty side.  The power of the High Court on the admiralty side is, however, contained in and confined to the provisions of  the Admiralty  Court Act, 1861 (24 & 25 Victoriae, Ch. 10)  made applicable to India by the Colonial Courts of Admiralty Act, 1890 (53 & 54 Victoriae) of Admiralty (India) Act, 1891 (Act No. 16 of 1891) declaring certain Indian Courts of unlimited civil  jurisdiction  as  colonial courts  of  admiralty  and declaring  the High Court of Judicature of Madras as one  of such  courts.   Mr. Ramachandran does not  dispute  that  by reason  of  the Andhra State Act, 1953,  and the  State  Re- organisation  Act,  1956 read with the Government  of  India Acts, 1915 and 1935 and the Constitution of India, the  High Court of Andhra Pradesh has, like the High Courts of Madras, Bombay  and  Calcutta, such admiralty  jurisdiction  as  was granted by the British Statutes referred to above.  But  the jurisdiction,  counsel  says, was not wider  than  what  was granted under the British Statutes.  The extent of admiralty jurisdiction  and  the  judicial  power  peculiar  to   that jurisdiction,  as  conferred  on  the  Indian  High  Courts, remained  frozen as on the date of the Admiralty Court  Act, 1861.  The wider powers assumed by the British Courts  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 50  

the subsequent statutes of that country did not enlarge  the admiralty  jurisdiction of the Indian High Courts.   In  the absence of any                                                     1020 subsequent British or Indian statute widening the  admiralty jurisdiction  of the Indian Courts, the jurisdiction of  the Andhra Pradesh High Court over a foreign ship by means of an action in rem does not extend to any matter falling  outside the  Admiralty Court Act, 1861.  The only provision of  that Act respecting cargo is what is contained in Section 6 which is  confined to goods ‘carried into any Port in  England  or Wales in any Ship....’  Applying that provision to India  by reason  of the statutes referred  to above, the Indian  High Court exercising admiralty jurisdiction has no power to deal with any claim concerning outward cargo because Section 6 is confined  to inward cargo.  The plaintiff’s case is  founded on  certain  facts which clearly fall outside the  ambit  of Section  6 of the admiralty Court Act, 1861.   Consequently, the arrest of the vessel in purported exercise of  admiralty jurisdiction in rem, concerning a claim relating to  outward cargo,  was null and void and of no effect.  This  argument, supported as it is by considerable scholarly research on the part   of  counsel,  amounts  to  an  invocation  to   admit incompetence  and  disability  on the  part  of  the  Indian Judicial  System to render justice for want  of  legislative grant  of power.  Counsel is fortified in his submission  by certain decisions of Calcutta, Bombay and other High Courts.      Mr.   G.L.  Sanghi,  appearing  for   the   respondent- plaintiff,  on  the other hand, submits  that  the  impugned judgment of the High Court is sound and correct and requires no  interference by this Court because what the  High  Court has stated is based on a realistic appreciation of the  need for  liberal construction of the statutes so as  to  support assumption  of jurisdiction to render justice where  justice is required to be done rather than resorting to a  technical or  narrow or pedantic construction resulting in a state  of helplessness. Counsel says that every person has a right  to approach  the Court of the land for appropriate  remedy   in respect of claims against a foreign ship and its owner,  and to deny him that right and to compel him to pursue remedy in a  foreign country according to an unfamiliar system of  law and  practice  in  strange  and  uncertain  conditions,  and consequently   incurring   high  expenses   with   all   the uncertainties of such a pursuit, is unjust and uncalled for. All  major  systems  of law the  world  over  recognise  the competence of the coastal State to assume jurisdiction  over a  foreign  ship entering its waters in respect  of  certain well  recognised claims, irrespective of where the cause  of action  arose  or  where  the defendant  has  his  place  of residence or business.  the reason for this wide exercise of jurisdiction  is that the foreign owner being not  available within jurisdiction, and the stay                                                   1021 of the foreign ship in the waters of the coastal State being necessarily  brief,  jurisdiction over the ship  has  to  be exercised by its arrest and detention by means of an  action in  rem.  Counsel submits that the High Court being a  Court of record with unlimited jurisdiction, it was never intended by the British Parliament that the admiralty power conferred on  certain High Courts should remain frozen as on the  date of  the  passing of the Admiralty Court Act,  1861  and  the subsequent  changes in the law of Great Britain  should  not widen  the jurisdiction of the Indian High Courts.   In  any case,  counsel submits, the colonial statutes should not  be so  construed  as  to stand in the way of  the  Indian  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 50  

Courts  exercising unlimited jurisdiction except  where  the jurisdiction is barred expressly of by necessary implication. In the absence of any such bar, the powers of the High Court are  unlimited  and  there is no merit  in  the  preliminary objection to the jurisdiction of the High Court.      The  Andhra Pradesh High Court is the successor to  the Madras High Court in respect of the territories  transferred from  Madras and included in the State of Andhra  which  was formed  by  the  Andhra State Act, 1953 (Act  30  of  1953). Vishakhapatnam is one of the areas so included in the  State of Andhra.   Section 30 of this Act provides:          "30.  Jurisdiction of Andhra High Court - The  High          Court  of  Andhra  shall have, in  respect  of  the          territories  for  the time being  included  in  the          State  of Andhra, all such original, appellate  and          other  jurisdiction  as,  under the  law  in  force          immediately   before   the   prescribed   day,   is          exercisable  in respect of the said territories  or          any part thereof by the High Court at Madras."      The  High Court of Andhra was redesignated as the  High Court  of Andhra Pradesh when the State was so named by  the States  Re-organisation Act, 1956.  Section 52 of  that  Act provides :          "52.  Jurisdiction of High Courts for new States. -          The  High  Court  for a new State  shall  have,  in          respect of any part of the territories included  in          that  new State, all such original,  appellate  and          other  jurisdiction  as,  under the  law  in  force          immediately   before   the   appointed   day,    is          exercisable  in  respect of that part of  the  said          territories   by   any  High  Court   or   Judicial          Commissioner’s Court for an existing State."                                                      1022      In  the port of Vishakhapatnam the Andhra Pradesh  High Court  has thus the same jurisdiction as was vested  in  the Madras  High Court prior to the transfer of that  territory. The  question  is as regards the extent and  nature  of that jurisdiction.      The   powers of the Madras High Court are traceable  to the Admiralty Court Act, 1861 (24 & 25 Victoriae c. 104)  by reason  person of the Letters Patent of 1865 read  with  the Colonial  Courts  of Admiralty Act, 1890  and  the  colonial Courts  of  Admiralty (India) Act, 1891.  By  the  last  two Acts,  the  Madras  High Court was invested  with  the  same admiralty  jurisdiction as was vested in the High  Court  of England.  The Letters Patent of 1865 declared that the  High Court  of Madras would and continue to be a court of  record and  that  it would exercise ordinary,  original  and  civil jurisdiction  within its local limits to try  and  determine suits.  The Government of India Act, 1915 declared that  all the High Courts established by Letters Patent were courts of record  and  had such original  and  appellate  jurisdiction including admiralty jurisdiction as had been vested in  them by  Letters  Patent.   The Government  of  India  Act,  1935 declared that ‘every  High Court shall be a court of record’ and  that its jurisdiction, the law administered by  it  and the powers of the judges were the same as immediately before the  commencement of Part III of that Act (sections 220  and 223).  Article 225 of the Constitution of India declares :          "...the  jurisdiction of, and the law  administered          in,  any  existing High Court, and  the  respective          powers  of  the Judges thereof in relation  to  the          administration  of justice in the Court,  including          any  power to make rules of Court and  to  regulate          the  sittings of the Court and of members   thereof

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 50  

        sitting  alone or in Division Courts, shall be  the          same  as   immediately before the  commencement  of          this constitution :                                      Provided ............."      Article 215 says :         "Every  High Court shall be a court of  record  and          shall have all the powers of such a court including          the power to punish for contempt of itself".      In  a  number of decisions of the Calcutta  and  Bombay High Courts,                                                   1023 the  admiralty jurisdiction of the High Courts in India  has been  historically traced to the Charters of 1774 and  1798, as subsequently expanded and clarified by the Letters  Patent of  1823,  1862 and 1865 read with the Admiralty Court  Act, 1861,  the Colonial Courts of Admiralty Act, 1890,  and  the Colonial Court of Admiralty (India) Act, 1891 and  preserved by section 106 of the Government of India Act, 1915, section 223 of the Government of India Act, 1935 and Article 225  of the Constitution of India.   The pre-constitution enactments have continued to remain in force in India as existing  laws :  See section 18 of the Indian Independence Act, 1947,  and Article  372  of the Constitution of India.   See  Kamalakar Mahadev  Bhagat v. Scindia Stream Navigation Co.  Ltd.,  AIR 1961 Bombay 186; Mrs. Sahida Ismail v. Petko R. Salvejkov  & Ors., AIR 1973 Bombay 18; Jayaswal Shipping Company v. ‘S.S. Leelavati’,  AIR 1954 Calcutta 415; Rungta Sons Pvt. Ltd.  & Anr. v. S.S. ‘Edison Mariner’ & Anr., 1961-62 (66)  Calcutta Weekly  Notes 1083 and Smt.  Reena Padhi v.  ‘Jagdhir’,  AIR 1982  Orissa 57.  The view taken in these decisions is  that the  admiralty jurisdiction of the High Court in India  does not  extend  beyond  the  ambit of  the  provisions  of  the (English)  Admiralty Court Act, 1861.  Further expansion  of the  jurisdiction  of the English High Court  under  various statutes did not expand the jurisdiction of the Indian  High Courts.  This means, no High Court in India has jurisdiction to  order the arrest and 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.      The rationale of these decisions is that the  chartered High Courts in India are Colonial Courts of Admiralty  under Act  16  of  1891 exercising the same  jurisdiction  as  was vested  in the High Court of Admiralty of England under  the Admiralty Court Act, 1861, and the subsequent merger of  the English High Court of Admiralty with the English High  Court of Justice in 1875 and the expansion of jurisdiction of that High  Court  under subsequent statutes did  not  expand  the admiralty  power of the Indian High Court of merge  it  with its  ordinary original civil  jurisdiction.  P.B.  Mukharji, J.  of the Calcutta High Court in Jayaswal Shipping  Company v. ‘S.S. Leelavati’, AIR 1954 Cal. 415, 421, highlights this aspect thus :          "...  Courts of Admiralty are  courts  of  specific          jurisdiction  and  if a controversy does  not  come          within  their  specific jurisdiction,  they  cannot          entertain  it, and in that respect are  unlike  the          courts of residuary jurisdiction such as the Common          Law Courts or                                                      1024          in  India  the Courts of  ordinary  original  civil          jurisdiction."      In National Co. Ltd. v. Asia Mariner, 72 CWN 635,  647, S.K. Mukherjea, J. of the Calcutta High Court states :          "The  High  Court  at   Calcutta  as  a  Court   of          Admiralty  is,  therefore, a  Court  of  prescribed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 50  

        jurisdiction.   Its jurisdiction is  prescribed  by          clause  26  of the Charter of 1774 and  by  section          2(2) of the Colonial Courts of Admiralty Act, 1890.          The jurisdiction has not been extended or  modified          by  any statute.  None of the   subsequent  British          statutes by which the Admiralty Jurisdiction of the          High Court in England has been extended or affected          have been made applicable to India."      The High Court as a Court of Admiralty is thus  treated as  a separate entity exercising a distinct and specific  or prescribed or limited jurisdiction.  This reasoning is based on  the  assumption  that the continuance in  force  of  the Colonial  Courts of admiralty Act, 1890 as an  existing  law carves out a distinct jurisdiction of the High Court limited in  ambit  and  efficacy to what has  been  granted  by  the Admiralty  Court  Act,  1861,  and  that  jurisdiction   has remained   stultified   ever   since.    This    restrictive construction   is,  in  our  view,  not  warranted  by   the provisions  of  the Constitution.  The fact  that  the  High Court  continues  to enjoy the same jurisdiction as  it  had immediately before the commencement of the Constitution,  as stated in Article 225, does not mean that a matter which  is covered by the Admiralty Court Act, 1861 cannot be otherwise dealt  with by he High Court, subject to its own  Rules,  in exercise  of  its manifold jurisdiction,  which  is,  unless barred, unlimited.  To the extent not barred expressly or by necessary  implication,  the judicial  sovereignty  of  this country is manifested in the jurisdiction vested in the High Courts as superior courts.      S.K. Mukherjea, J., however, continues (ibid, para 94):          "The  Admiralty Court Act, 1861, although  repealed          in  part in relation to Enlgand and Wales,  remains          in force in India.  None of the subsequent  English          statutes  relating to Admiralty  jurisdiction  over          cargo claims or contract of carriage have been made          applicable  to the High Courts in India  exercising          jurisdiction in Admiralty."                                                        1025      A  similar  view is echoed  in other decisions  on  the point.   In  Kamalakar  Mahadev  Bhagat,  v.  Scindia  Steam Navigation co. Ltd. AIR 1961 Bombay 186, a learned Judge  of the Bombay High Court stated :          "....It  will thus be seen that the High  Court  of          judicature at Bombay in particular being one of the          Colonial  Courts of Admiralty under Act 16 of  1891          today exercises the same admiralty jurisdiction  as          was  exercised  by the High Court of  Admiralty  in          England  in  1890  when  the  Colonial  Courts   of          Admiralty Act was passed by the British Parliament.          We have, therefore, to examine and ascertain as  to          what  was the scope and nature of  jurisdiction  of          the High Court of Admiralty in England either under          any statute or otherwise in the year 1890, because,          it  would  be  just  that  jurisdiction  which   is          exercisable  by  the High Court  of  Judicature  at          Bombay down to date." (p. 190)      With respect we disagree.  All this is reminiscent of a bygone  age.  The learned Judge failed to take note  of  the fact that in 1890 the Court of Admiralty had ceased to be  a separate and distinct institution.  By the Judicature Act of 1873,  the High Court of Admiralty was merged with the  High Court of Justice.  It is, however, true that the substantive powers in admiralty matters were derived from the  Admiralty Court  Act,  1861, and those powers were not  widened  until 1920.  The learned Judge further observes:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 50  

        "...  In  my opinion, therefore, the  present  suit          falls  within the exclusive Admiralty  jurisdiction          of the High Court and could not have been filed  on          the Ordinary Original Side of the High Court,  much          less in the City Civil Court.  In this view of  the          matter,  I  am  unable  to  agree  with  the   view          expressed  by  the learned Principal Judge  of  the          City  Civil Court that actions in personam used  to          be entertained in the Common Law Courts in  England          in respect of damage done by ship on the high  seas          and that even at present in England it is open to a          suitor to file an action in personam in the  King’s          Bench Division in respect thereof.  In my  opinion,          no such action ever lay in the Common Law Courts of          England,  nor can it ever lie in the Queen’s  Bench          Division  of  the  High Court  of  England  at  the          present time...". (p.200 ibid.)                                                        1026      All  this  observation, as we shall presently  see,  is inconsistent with the true character of the constitution  of the  courts  in  England and the powers  exercised  by  them consequent upon the statutory changes between 1873 and 1981.      It  is  true  that the Colonial  statutes  continue  to remain in force by reason of Article 372 of the Constitution of  India, but that does not stultify the growth of  law  or blinker  its vision  or fetter its  arms.   Legislation  has always marched behing time, but it is the duty of the  Court to  expound  and  fashion the law for the  present  and  the future to meet the ends of justice.      We do not accept the reasoning of the High Court in the decisions  cited  above  on the  question  of  jurisdiction, whatever  be  the  correctness of  their  decisions  on  the peculiar facts of those cases in regard to which we  express no view.  But the narrow view adopted in those decisions  on the  source and ambit of the admiralty jurisdiction  of  the High Courts is, in our opinion not warranted.      Mr. Ramachandran has laid much stress on the section of the  Privy  Council in The Yuri Maru v. The Woron,  1927  AC 906,  which was relied on by the Bombay High Court  in  Mrs. Sahida  Ismail (supra) to come to the conclusion,  which  it did,  as  to  the lack of jurisdiction of  the  Indian  High Courts  to  go  beyond what was permitted  by  the  Colonial Courts of Admiralty Act, 1890.      Before we deal with the decision of the Privy  Council, it  is  important  to notice that  the  Colonial  Courts  of Admiralty  were vested with the same admiralty  jurisdiction which  was  vested  in the High Court  of  England  ‘whether existing  by  virtue of any statute or otherwise’  and  they were  entitled  to exercise the same  jurisdiction  in  like manner and to the same extent as the High Court in  England. We  shall now read the provisions of the Colonial Courts  of Admiralty Act, 1890, so far as they are material.          "2. (1). Colonial Courts of Admiralty - Every Court          of  law in a British possession, which is  for  the          time being declared in pursuance of this Act to  be          a  court  of  Admiralty,  or  which,  if  no   such          declaration  is  in force in  the  possession,  has          therein original unlimited civil jurisdiction, shall          be  a court of Admiralty, with the jurisdiction  is          this Act mentioned, and may for the                                                        1027          purpose  of  that  jurisdiction  exercise  all  the          powers  which it possesses for the purpose  of  its          other   civil  jurisdiction,  and  such  court   in          reference to the jurisdiction conferred by this Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 50  

        is  in this Act referred to as a Colonial Court  of          Admiralty          ............................             (2)  The  jurisdiction of a  Colonial  Court  of          Admiralty shall, subject to the provisions of  this          Act, be over the like places, persons, matters, and          things,  as the Admiralty jurisdiction of the  High          Court in England, whether existing by virtue of any          statute  or  otherwise, and the Colonial  Court  of          Admiralty  may exercise such jurisdiction  in  like          manner  and to as full an extent as the High  Court          in England, and shall have the same regard as  that          Court  to  international  law  and  the  comity  of          nations.              (3)....................................              Provided as follows :             (a)  Any  enactment in an Act  of  the  Imperial          Parliament referring to the Admiralty  jurisdiction          of  the  High Court in England, when applied  to  a          Colonial   Court   of  Admiralty   in   a   British          possession,  shall be read as if the name  of  that          possession were therein substituted for England and          Wales; and ......."                                          (emphasis supplied) These   provision  show  that  the  admiralty   jurisdiction conferred on the Colonial Courts of Admiralty was  identical to  that of the High Court in England.  The Colonial  Courts of   Admiralty  were,  in  relation  to   their   respective territories,  invested  with  the  same  jurisdiction  ’over places,  persons, matters and things" as in the case of  the English  High Court in respect of England and  Wales.   This jurisdiction  was  derived  from  the  statutes  which  then existed  in  England - namely, the Admiralty Court  Acts  of 1840 and 1861, as well as from other sources such as  custom and   practice  as  recognised  by  the  Courts   exercising admiralty  jurisdiction.    This  is clear  from  the  words "whether  existing by virtue of any statute  or  otherwise". The  proviso  makes  the position even  clearer.   What  the Colonial  Courts  of  Admiralty Act, 1890  did  was  not  to incorporate  any particular English Statute into Indian  law for the purpose of conferring admiralty jurisdiction, but to assimilate the competent courts in India to                                                   1028 the  position of the English High Court in the  exercise  of admiralty  jurisdiction.  It would, therefore,  appear  that any expansion of Admiralty jurisdiction of the High Court in England was intended likewise to expand the jurisdiction  of the  Colonial  Court of Admiralty.  This  should  have  been regarded as the position with respect to a Colonial Court of unlimited jurisdiction.           Section 3 of this Act provides :           "(3) - The legislature of a British possession may           by any Colonial law -              (a)  declare   any  court  of  unlimited  civil                   jurisdiction,    whether    original    or                   appellate,  in  that possession  to  be  a                   Colonial Court of Admiralty..."               (b)  confer upon any inferior  or  subordinate                    court in that possession such partial  or                    limited Admiralty jurisdiction under such                    regulations and with such appeal (if any)                    as may seem fit:                        Provided  that any such Colonial  law                    shall  not confer any jurisdiction  which                    is  not  by  this Act  conferred  upon  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 50  

                  Colonial Court of Admiralty." Section  3  thus  draws  a  distinction  between  courts  of unlimited  jurisdiction falling under clause (a) and  courts of  limited  jurisdiction  falling under  clause  (b).   The admiralty  jurisdiction  of the former was wider  than  that which was conferred on the latter.      Section  7  confers  power to make rules  of  court  to regulate  the  procedure and practice of the  court  in  the exercise   of  its  admiralty  jurisdiction.  This   section provides :-          "S.7.  (1)  Rules  of  court  for  regulating   the          procedure  and practice (including fees and  costs)          in a court in a British possession in the  exercise          of the jurisdiction conferred by this Act,  whether          original  or  appellate, may be made  by  the  same          authority and in the same manner as rules  touching          the  practice,  procedure, fees, and costs  in  the          said  court in the exercise of its  ordinary  civil          jurisdiction respectively are made.          ...............................                                                   1029          (2) .............................          (3) Such rules may provide for the exercise of  any          jurisdiction  conferred  by this Act  by  the  full          court,  or  by  any judge or  judges  thereof,  and          subject  to  any rules, where  the  ordinary  civil          jurisdiction  of  the  court can  in  any  case  be          exercised  by  a  single  judge,  any  jurisdiction          conferred  by  this  Act may in the  like  case  be          exercised by a single judge."      By virtue of this provision, admiralty rules were  made for Calcutta and Bombay High Courts.   The Madras High Court adopted admiralty rules by virtue of the powers conferred by the  Letters Patent of the High Court and the Government  of India Act, 1915.      By Act 16 of 1891, certain courts in British India were declared  to  be  Colonial Courts of  Admiralty.   The  High Courts  of Judicature at Fort William in Bengal,  at  Madras and  at Bombay were three of the six Courts declared  to  be Colonial Courts of Admiralty.*  The preamble to this Act, in so declaring, stated :-          "WHEREAS  it is provided by the Colonial Courts  of          Admiralty  Act,  1890, that the  Legislature  of  a          British possession may by any colonial law  declare          any  Court of unlimited civil jurisdiction in  that          possession to be a Colonial Court of Admiralty;          ..................."      It was because of the unlimited civil jurisdiction that was  already  vested  in these High Courts  that  they  were declared to be Colonial Courts of Admiralty having the  same jurisdiction in extent and quality as was vested in the High Court  of England by virtue of any statute or  custom.   The High Courts were declared to be competent to regulate  their procedure and practice in exercise of admiralty jurisdiction in accordance with the Rules made in that behalf.  There is, therefore, neither reason nor logic in imposing a fetter  on the jurisdiction of these High Courts by limiting it to  the provisions  of an imperial statute of 1861 and freezing  any further  growth of jurisdiction.  This is all the more  true because  the  Admiralty  Court Act, 1861  was  in  substance reappealed in England a long time ago. See Halsbury’s Laws of England 4th ed. ---------------------------------------- *    (1)   The  other  Courts are : (a)  The  Court  of  the      Recorder  of Rangoon (b) The Court of the  Resident  at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 50  

    Aden (c) The District Court of Karachi.                                                   1030 Vol.I(1), para 307; Halsbury’s Statutes of England, Vol.  I, p.9      Assuming  that the admiralty powers of the High  Courts in  India  are  limited to what had been  derived  from  the Colonial  Courts  of Admiralty Act, 1890, that  Act,  having equated  certain  Indian High Courts to the  High  Court  of England  in  regard  to  admiralty  jurisdiction,  must   be considered to have conferred on the former  all such  powers which  the latter enjoyed in 1890 and thereafter during  the period  preceding the Indian Independence Act,  1947.   What the  Act  of  1890  did  was,  as  stated  earlier,  not  to incorporate  any  English statute into Indian  law,  but  to equate the admiralty jurisdiction of the Indian High  Courts over  places,  persons, matters and things to  that  of  the English  High Court.  As the admiralty jurisdiction  of  the English   High   Courts  expanded  with  the   progress   of legislation,  and  with the repeal of the earlier  statutes, including in substance the Admiralty Court Acts of 1840  and 1861,  it  would  have  been  reasonable  and  rational   to attribute  to the Indian High Courts a corresponding  growth and  expansion  of admiralty jurisdiction  during  the  pre- independence  era.  But a restrictive view was taken on  the question in the decisions of the High Courts cited above.      There  is no reason why the jurisdiction of the  Indian High  Courts should have been considered to have frozen  and atrophied  on the date of the Colonial Courts  of  Admiralty Act,  1890.   If  this  had  not  been  considered  to  have happened,  and  a liberal construction had been  adopted  by courts,  the admiralty jurisdiction of the High Court  would in  any case have been considered to have progressed  up  to the  level  of the English Administration  of  Justice  Act, 1928,  which  was  the last of a  series  of  enactments  in England  on the subject prior to 1947, and consequently  the Indian High Court would have been treated as a  consolidated court  on the basis of (English) Supreme Court of Judicature (Consolidation)   Act,   1925,  exercising   identical   and unlimited  jurisdiction, and not a distinct or  ‘prescribed’ admiralty   jurisdiction,  limited  and  confined   to   the Admiralty  Court  Act, 1861, as it is now treated to  be  by some  of the High Courts in the decisions cited above.   All this is perhaps the result of the reasoning in the  decision of the Privy Council in The Yuri Maru v. The Waron, 1927  AC 906.      The  Yuri  Maru which arose from Canada  concerned  the jurisdiction  of  the  Exchequer  Court.   The  decision  is summarised in the head note as follows:          "The  effect  of  s. 2, sub-s 2,  of  the  Colonial          Courts of Admiralty                                                        1031          Act,  1890 (Imp.) is to limit the  jurisdiction  of          Colonial Courts of Admiralty established under  the          Act to the Admiralty jurisdiction of the High Court          of  England,  as it existed at the passing  of  the          Act; the extension of the Admiralty jurisdiction of          the  High  Court by the Administration  of  Justice          Act, 1920 (Imp.), s.22, repealed and re-enacted  by          the  Supreme  Court of  Judicature  (Consolidation)          Act, 1925 (imp.), s.22, does not apply to  Colonial          Courts of Admiralty.          Consequently, the Exchequer Court of Canada,  which          was  established by the Admiralty Act  (R.S.  Can.,          1906, c.141) as a Colonial Court of Admiralty,  has          not,  under  s.  22, sub-s. 1(xii),  of  the  above

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 50  

        Imperial Act of 1925, jurisdiction in rem to try an          action for damages for breach of a charterparty.          .................."      The Privy Council thus rejected the contention that the jurisdiction   of  the  Canadian  Court  of  Admiralty   was automatically  extended with the progress of legislation  in England  widening the admiralty jurisdiction of the  English High Court.   Nevertheless, the Privy Council  significantly left it to the Canadian legislature to pass appropriate laws for  widening  the  jurisdiction  of  the  Canadian  Courts. Speaking for the Board, Lord Merrivale concluded :-          "On  the whole, the true intent of the Act  appears          to  their  Lordships to have been to  define  as  a          maximum of jurisdictional authority for the  Courts          to set up thereunder, the Admiralty jurisdiction of          the High Court in England as it existed at the time          when the Act passed.  What shall from time to  time          be  added  or  excluded  is  left  for  independent          legislative determination".      The  Exchequer Court of Canada was established  by  the Admiralty Act R.S. Canada, 1906, c. 141, as a Colonial Court of Admiralty.  It is not clear whether that Court was in its jurisdiction comparable to the Indian High Courts.  Assuming that it was comparable at the relevant time, and whatever be the  relevance of The Yuri Maru (supra) to Courts  like  the Exchequer  Court  of  canada,  we  see  no  reason  why  the jurisdiction of the Indian High Courts, governed as they now are  by  the  Constitution of India, should on  any  way  be subjected to the jurisdictional fetters imposed by the Privy Council in that                                                   1032 decision.  Legal history is good guidance  for  the  future, but to surrender to the former is to lose the latter.      A  short account of the English statutes  on  admiralty jurisdiction  and the power exercised by the English  Courts over  foreign  ships will be helpful  in  understanding  the nature  and  extent  of the admiralty  jurisdiction  of  the Indian  Courts.   We shall, therefore, briefly  discuss  the salient  features  of  the  admiralty  jurisdiction  of  the English Courts.      The  customs  and  practices  of  the  commercial   and maritime  courts and the Law Merchant administered  by  them and  the jurisdiction assumed by the Admiral over ships  and things at sea and the conflict which arose between the Court presided  over by him and the common law and  equity  courts leading  to  curtailment of the powers of  the  Admiral  and ultimately  resulting in consolidation of all the courts  by the Supreme Court of Judicature  Act. 1873 (which came  into force in 1875) are vividly described by eminent Scholars  of English  legal history and maritime law.  See Holdworth’s  A History  of  English  Law,  Volumes I,  5  and  8;  Roscoe’s Admiralty  Practice, 5th ed.; Marsden: Select Pleas  of  the Court of Admiralty, Volumes I and II; Law and Custom of  the SEa,  ibid Volumes I and II; Benedict on Admiralty, 6th  ed. (1940) Vol.  I; Gilmore and Black, Law of Admiralty, 1957.      The  wide jurisdiction vested in the English  Courts is derived from ancient principles of Maritime Law developed by custom and practice as well as from subsequent statutes many of  which have incorporated the provisions of  International Conventions unifying the laws practised in several  maritime countries.   It  is  beyond the scope of  this  judgment  to embark on a survey of maritime history except to notice that both  the Admiralty Court and the Common Law Courts  claimed jurisdiction over cases governed by maritime law.   Although admiralty   Judges   were   often   compelled   to   abandon

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 50  

jurisdiction to the Courts of Common Law in various matters, maritime  cases  involving  hypothecation,  salvages,  torts committed  on the high seas and the like, where  the  Common Law  Courts could not give effective redress, were  left  to the  jurisdiction  of the admiralty Judges.   The  admiralty had, however, ‘fallen into a feeble and neglected  condition and for long its proceedings excited no attention’.  But  in the  Eighteenth  Century, the learning and ability  of  Lord Stowell  ‘raised  the  Court to a position  of  the  highest importance’ (Roscoe’s Admiralty Practice, 5th ed. p. 14).                                                   1033      In  the  words of Holdswoth*, "Modern  legislation  has restored  to the court of Admiralty many of the powers,  and much  of the jurisdiction of which it had been  deprived  in the  seventeenth century. ...But Admiralty law has lost  the international  character  which it once  possessed.   It  is essentially English Law.  "The law which is administered  in the Admiralty Court of England is the English maritime  law. It is not the ordinary municipal law of the country, but  it is the law which the English court Admiralty, either by  Act of Parliament or by reiterated decisions and traditions  and principles,  has  adopted  as the  English  Maritime  law**, ‘Neither  the  laws of the Rhodians, nor of  Oleron,  nor  of Visby, nor of the Hanse towns, are of themselves any part of Admiralty law of England....But they contain many principles and  statements  of marine practice,  which,  together  with principles found in the Digest, and in the French, and other Ordinances, were used by the judges of the English court  of Admiralty, when they were moulding and reducing to form  the principles and practice of their court’.***      The Admiralty Court Act, 1840 was the first of a series of  statutes extending and defining the jurisdiction of  the High  Court of Admiralty in England.  This Act was  followed by  the  Admiralty Court Act, 1861 confering  larger  powers upon  the  High Court of Admiralty.  Section 6 of  this  Act empowered the High Court of Admiralty to assume jurisdiction over  foreign  ships in respect of claims to  cargo  carried into  any port in England or Wales.****  Significantly,  the Act did not apply to outward cargo. ---------------------------------------- *     A History of English Law, W.S. Holdswoth, vol. 1,  pp. 558-59. **    The Gaetano and Maria, (1882) 7PD at p. 143. ***   The Gas Floot Whitton, N:2 (1896) P. at pp. 47. 48." ***** The section reads :          "6.  As to Claims for Damage to Cargo  imported.  -          The High Court of Admiralty shall have Jurisdiction          over  any  Claim  by  the  Owner  or  Consignee  or          Assignee of any Bill of Lading of any Goods carried          into any Port in England or Wales in any Ship.  for          Damage done to the Goods or any Part thereof by the          Negligence  or Misconduct of or for any  Breach  of          Duty  or  Breach  of Contract on the  Part  of  the          Owner.   Master, or Crew of the Ship, unless it  is          shown to the Satisfaction of the Court that at  the          Time  of the Institution of the Cause any Owner  or          Part  Owner of the Ship is domiciled in England  or          Wales : Provided always, that if in any such  Cause          the Plaintiff do not recover Twenty Pounds he shall          not be entitled to any Costs.  Charges, or Expenses          incurred  by  him therein, unless the  Judge  shall          certify that the Cause was a fit one to be tried in          the said Court."                                        (emphasis supplied) See  the  observation  of  Dr.  Lushington  in  the  "Kasan"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 50  

(January  13,  1863)  and in the  "Bahia"  (April  21,  1863 English Report, Vol. 167. p. 268, 298.                                                   1034 Section 7 of the Act, however, conferred jurisdiction on the High  Court of Admiralty "over any claim for damage done  by any  ship".  This Act was followed by the Judicature Act  of 1873,  which came into force in 1875 and which  merged   the High  Court  of  Admiralty with the High  Court  of  Justice resulting  in  a  fusion of admiralty law,  common  law  and equity.   It  is  of interest to  note  that  the  provision contained  in  section 6 of the Admiralty  Court  Act,  1861 limiting  the jurisdiction of the Admiralty Court to  claims respecting inward cargo was discarded by the  Administration of Justice Act, 1920 which extended the jurisdiction of  the High  Court  to (a) any claim arising out  of  an  agreement relating  to  the  use  or hire of a  ship;  (b)  any  claim relating  to the carriage of goods in any ship, and (c)  any claim in tort in respect of goods carried in any ship.   The Act thus applied to both inward and outward cargoes.      The  Admiralty  Court  Act,  1861  and  the  subsequent enactments  were  consolidated  by  the  Supreme  Court   of Judicature   (consolidation)  Act,  1925.    The   admiralty jurisdiction of the English High Court was redefined by this Act to include various matters such as any claim "for damage done  by  a ship"; any claim "arising out of  an   agreement relating to the use or hire of a ship"; or "relating to  the carriage  of  goods in a ship"; or "in tort  in  respect  of goods  carried in a ship".  This jurisdiction was,  however, not  available  if "at the time of the  institution  of  the proceedings  any  owner  or  part  owner  of  the  ship  was domiciled in England"  [See section 22 (1), (iv) and (vii)]. By the Administration of Justice Act, 1928, the jurisdiction vested in the High Court by the Supreme Court of  Judicature (Consolidation)  Act,  1925 was declared to  belong  to  all divisions  of the High Court.  The admiralty Court was  thus empowered to entertain, apart from actions in rem, any claim in personam which could be brought in any other division  of the High Court.      By  the  Administration  of  Justice  Act,  1956,   the admiralty  jurisdiction  of  the  High  Court  was   further widened  and redefined so as to include not only the  claims specified  under section 1(i) of Part I but also "any  other jurisdiction  which either was vested in the High  Court  of Admiralty immediately before the date of the commencement of the Supreme Court of Judicature Act, 1873 (i.e., 1.11.1875), or is conferred by or under an Act which came into operation on  or  after that date on the High Court as being  a  court with  Admiralty  jurisdiction  and  any  other  jurisdiction connected  with ships or aircraft vested in the  High  Court apart from this section which is for the time being assigned by rules of court to the Probate, Divorce and Admiralty                                                   1035 Division".   Sub-Section  (4) of this  section  removed  the restriction  based  on the ownership of the ship.   It  says that  the  jurisdiction applied to all  ships  or  aircraft, "whether  British or not and whether registered or  not  and wherever  the residence or domicile of their owners may  be" and  "in relation to all claims, wheresoever arising".   The jurisdiction in regard to the questions or claims  specified under section 1(i) includes "any claim for damage done by  a ship", "any claim for loss of or damage to goods carried  in a ship", "any claim arising out of any agreement relating to the carriage of goods in a ship or to the  use or hire of  a ship" [See clauses (d), (g) & (h)].      These  claims  are  now  specifically  mentioned  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 50  

clauses  (e), (g) and (h) respectively of section  20(2)  of the  Supreme  Court  Act, 1981,  amongst  other  claims,  as falling under the Admiralty jurisdiction of the High  Court. Part II of this Act is derived substantially from Part I  of the  1956  Act  which  was enacted to  give  effect  to  the Brussels  Convention of 1952 relating to the arrest of  sea- going  ships and the rules concerning civil jurisdiction  in matters of collision (Cmd 8954).      Section  20 of the Supreme Court Act,  1981  enumerates various  questions  and claims falling under  the  admiralty jurisdiction of the English High Court.  Apart from  matters covered by the Merchant Shipping Acts 1894 to 1979 [referred to  in sub-section (3)] and certain other  matters,  various questions  and  claims are enumerated  in  sub-section  (2). They  include:  "any claim for loss of or  damage  to  goods carried  in a ship; any claim arising out of  any  agreement relating to the carriage of goods in a ship or to the use or hire of a ship; any claim for damage received by a ship; and any claim for damage done by a ship.* ----------------------------------------- *     The specific questions and claims enumerated  in  sub-      section  (2)  of section 20 of the Supreme  Court  Act,      1981 are :-      "(a) any claim to the possession or ownership of a ship      or to the ownership of any share therein;      (b)  any  question arising between the co-owners  of  a      ship  as to possession, employment or earnings of  that      ship;     (c) any claim in respect of a mortgage of or charge on a     ship or any share therein;     (d) any claim for damage received by a ship;     (e) any claim for damage done by a ship;     (f)  any  claim  for loss of  life  or  personal  injury     sustained  in consequence of any defect in a ship or  in     her  apparel  or  equipment, or in  consequence  of  the     wrongful act, neglect or default of -                                 footnote contd. on next page                                                     1036      Sub-section  (7) of this section specifically  provides that the admiralty jurisdiction of the High Court extends to "all ships or aircrafts, whether British or not and wherever the residence or domicile of their owners may be, and to all claims wherever arising".  It reads:           Sub-Section (7).  The preceding provisions of this           section apply-           (a) in relation to all ships or aircraft,  whether           British  or  not  and wherever  the  residence  or           domicile of their owners may be;           --------------------------------     (i)  the owners, charterers or persons in possession  or          control of a ship; or     (ii) the master or crew of a ship, or any other  person          for  whose wrongful acts, neglects or defaults  the          owners,  charterers  or persons  in  possession  or          control  of a ship are responsible,          being an act, neglect or default in the  navigation          or  management  of  the  ship,  in   the   loading,          carriage or discharge of goods, on. in or from  the          ship,   or   in  the   embarkation,   carriage   or          disembarkation of persons on, in or from the ship.     (g)  any  claim for loss of or damage to  goods  carried          in a ship;     (h)  any claim arising out of any agreement relating  to          the  carriage of goods in a ship or to the  use  or          hire of a ship;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 50  

   (i)  any claim in the nature of salvage  (including  any          claim  arising by virtue of the application, by  or          under section 51 of the Civil Aviation Act 1949, of          the  law relating to salvage to aircraft and  their          apparel and cargo);     (j)  any claim in the nature of towage in respect  of  a          ship or an aircraft;     (k)  any claim in the nature of pilotage in respect of a          ship or an aircraft;     (l)  any claim in respect of goods or materials supplied          to a ship for her operation or maintenance :     (m)  any claim in respect of the construction, repair or          equipment  of a ship or in respect of dock  charges          or dues;     (n)  any  claim by a master or member of the crew  of  a          ship  for wages (including any sum allotted out  of          wages or adjudged by a superintendent to be due  by          way of wages);     (o)  any claim by a master, shipper, chartered or  agent          in  respect of disbursements made on account  of  a          ship;     (p)  any  claim  arising out of an act which  is  or  is          claimed to be a general average act;     (q)  any claim arising out of bottomry;     (r)  any claim for the forfeiture or condemnation  of  a          ship  or  of  goods which are being  or  have  been          carried, or have been attempted to be carried, in a          ship,  or for the restoration of a ship or any such          goods after seizure, or for droughts of Admiralty."                                                   1037          (b)  in  relation to all claims,  wherever  arising               (including,  in  the case of  cargo  or  wreck               salvage,  claims in respect of cargo or  wreck               found on land); and          (c)  so  far  as  they  relate  to  mortgages   and          charges,  to  all  mortgages  or  charges,  whether          registered   or   not   and   whether   legal    or          equitable,including  mortgages and charges  created          under foreign law:               Provided  that  nothing  in  this  sub-section          shall  be construed as extending the cases in which          money  or property is recoverable under any of  the          provisions  of the Merchant Shipping Acts  1894  to          1979". This  jurisdiction  is wide enough to cover  all  claims  in tort  or contract arising out of any agreement for  carriage of goods by sea.*      The whole jurisdiction of the English High Court is now vested  in  all the divisions alike.  All Divisions  of  the High  Court  and  all the Judges of that  Court  have  equal power,   authority  and  jurisdiction,  although   admiralty actions are assigned to the Queen’s Bench Division and taken up by the Admiralty Court.  **The special requirements of an action in personam, namely, the habitual residence or  place of  business of the defendant or the cause of action  having their nexus with England and Wales or the determination of a connected matter in the English High Court or the submission of the defendant to the jurisdiction of that court, are  not applicable to a proceeding commenced as an admiralty  action in  rem.  See O. 75, rule 4(3) of the Rules of  the  Supreme Court, 1965.***      The Civil Jurisdiction and Judgments Act, 1982  enacted into  English  Law and Scottish Law the  EEC  Convention  on Jurisdiction  and  Enforcement  of Judgments  in  Civil  and Commercial Matters.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 50  

    Describing  the  unified court  structure  in  England, Jackson sums up:           "The  Admiralty  Court  developed   independently,           having its own battle with common law courts  over           jurisdictional boundaries. ------------------------------ *    See the Principle stated in The Fehmam. (1958)  1  All      E.R. 333. **   See Halsbury, op. cit. 4th ed. Vol. I(I) para 309.  See      also Supreme Court Act, 1981. ***  See also the editor’s general note on O.75. rule 5  on      the practice of the English High  Court.                                                   1038          During  the  18th  and  early  19th  centuries   it          influence and power decreased, but through statutes          of  1840  and  1861  the  court  received  a   firm          foundation on which it has built since.  It came in          from  the cold into the general union of courts  in          1873-5  and is now integrated into the High  Court,          being a branch of the Queen’s Bench Division.          .....................................................               Once  under the umbrella of the unified  court          structure,  common  law  and  equitable  principles          became  directly available in the Admiralty  Court.          No   longer  need  claimants  have  to  seek  these          elsewhere   and   no  longer   did   jurisdictional          boundaries necessarily indicate the availability of          substantive rights and remedies."               [D.C. Jackson, Enforcement of Maritime Claims,               (1985) p. 8}      "The  law of admiralty, or maritime law, .... (is  the) corpus of rules, concepts, and legal practices governing ... the  business  of carrying goods and passengers  by  water." (Gilmore  and  Black, The Law of Admiralty, page  (1).   The vital  significance  and the distinguishing  feature  of  an admiralty  action  in rem is that this jurisdiction  can  be assumed  by  the  coastal  authorities  in  respect  of  any maritime  claim by arrest of the ship, irrespective  of  the nationality of the ship or that of its owners, or the  place of  business or domicile or residence of its owners  or  the place where the cause of action arose wholly or in part.      ".....  In  admiralty  the  vessel  has  a   juridicial personality,  an almost corporate capacity, having not  only rights but liabilities (sometimes distinct from those of the owner)  which may be enforced by process and decree  against the   vessel,  binding  upon  all  interested  in  her   and conclusive  upon  the world, for admiralty   in  appropriate cases  administers  remedies  in  rem,  i.e.,  against   the property, as well as remedies in personam, i.e., against the party   personally...".   Benedict,  The  Law  of   American Admiralty, 6th ed. Vol. I p.3.      Admiralty Law confers upon the claimant a right in  rem to proceed against the ship or cargo as distinguished from a right in personam to proceed against the owner.  The  arrest of  the  ship  is regarded as a  mere  procedure  to  obtain security to satisfy judgment.  A successful plaintiff in                                                   1039 an action in rem has a right to recover damages against  the property  of the defendant. ‘The liability of the  shipowner is  not limited to the value of the res primarily  proceeded against  ...  An action .... though originally commenced  in rem,  becomes  a personal action against  a  defendant  upon appearance,  and he becomes liable for the full amount of  a judgment  unless protected by the statutory  provisions  for the limitation of liability’. (Roscoe’s Admiralty  Practice,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 50  

5th ed. p.29)      The  foundation  of  an  action  in  rem,  which  is  a peculiarity  of  the  Anglo-American  law,  arises  from   a maritime  lien or claim imposing a personal  liability  upon the owner of the vessel.  A defendant in an admiralty action in personam is liable for the full amount of the plaintiff’s established  claim.   Likewise,  a  defendant  acknowledging service  in  an action in rem is liable to be  saddled  with full liability even when the amount of the judgment  exceeds the value of the res or of the bail provided.  An action  in rem  lies  in the English High Court in respect  of  matters regulated by the Supreme Court Act, 1981, and in relation to a number of claims the jurisdiction can be invoked not  only against  the offending ship in question but also  against  a ‘sistership’  i.e., a ship in the same beneficial  ownership as the ship in regard to which the claim arose.          "The vessel which commits the aggression is treated          as the offender, as the guilty instrument or  thing          to  which  the  forfeiture  attaches,  without  any          reference whatsoever to the character or conduct of          the owner...."          Per  Justice  Story, The United States v.  The  Big          Malek Adhel, etc., [43 US (2 How.) 210, 233 (1844)]      Merchant  ships of different nationalities travel  from port  to  port  carrying goods or  passengers.   They  incur liabilities  in the course of their voyage and they  subject themselves  to the jurisdiction of foreign States when  they enter  the  waters of those States.  They are liable  to  be arrested  for the enforcement of maritime claims, or  seized in execution or satisfaction of judgments in legal   actions arising out of collisions, salvage, loss of life or personal injury,  loss of or damage to goods and the like.  They  are liable  to be detained or confiscated by the authorities  of foreign  States  for violating  their  customs  regulations, safety measures, rules of the road, health regulations,  and for other causes.  The coastal State may exercise                                                   1040 its  criminal  jurisdiction  on board the  vessel  for   the purpose  of  arrest  or  investigation  in  connection  with certain  serious crimes.  In the course of an  international voyage,  a  vessel thus subjects itself to  the  public  and private  laws of various countries.  A ship travelling  from port  to  port  stays  very briefly  in  any  one  port.   A plaintiff  seeking to enforce his maritime claim  against  a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor  residence within jurisdiction.  The plaintiff may therefore detain the ship  by  obtaining an order of attachment  whenever  it  is feared that the ship is likely to slip out of  jurisdiction, thus leaving the plaintiff without any security.      A ship may be arrested (i) to acquire jurisdiction;  or (ii)  to obtain security for satisfaction of the claim  when decreed;  or (iii) in execution of a decree.  In  the  first two  cases,  the  court has the discretion  to  insist  upon security being furnished by the plaintiff to compensate  the defendant in the event of it being found that the arrest was wrongful  and was sought and obtained maliciously or in  bad faith.   The  claimant  is liable in  damages  for  wrongful arrest.   This  practice of insisting  upon  security  being furnished  by  the  party  seeking arrest  of  the  ship  is followed  in the United States, Japan and  other  countries. The reason for the rule is that a wrongful arrest can  cause irreparable loss and damages to the shipowner; and he should in  that event be compensated by the arresting party.   (See Arrest of Ships by Hill, Soehring, Hosoi and Helmer, 1985).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 50  

    The  attachment by arrest is only  provisional and  its purpose  is merely to detain the ship  until the matter  has been  finally settled by a competent court.  The  attachment of the vessel brings it under the custody of the marshal  or any  other  authorized officer.  Any interference  with  his custody  is  treated  as a contempt of the court  which  has ordered  the arrest.   But the  marshal’s  right  under  the attachment  order  is  not one of possession,  but  only  of custody.  Although the custody of the vessel has passed from the  defendant  to the marshal, all  the  possessory  rights which  previously existed continue to exist,  including  all the  remedies  which are based on possession.   The  warrant usually  contains  a monition to all persons  interested  to appear  before the court on a particular day and show  cause why the property should not be condemned and sold to satisfy the claim of the plaintiff.                                                   1041      The attachment being only a method of safeguarding  the interest of the plaintiff by providing him with a  security, it  is  not  likely to be ordered if the  defendant  or  his lawyer  agrees to "accept service and to put in bail  or  to pay  money  into court in lieu of  bail".   (See  Halsbury’s Laws of England, 4th edn. Vol. 1, p. 375 etc.).      The  service  of  the warrant is  usually  effected  by affixing it on the main mast or single mast of the ship.   A ship  which has been arrested under an order  of  attachment may be released by the court if sufficient bail is put in to cover the claim of the plaintiff as well as the costs of the action.   The sureties are liable for the amount entered  in the bail bond.      If  the ship or cargo under arrest before judgment  has not been released by the defendant by putting in  sufficient bail  and if the property is found deteriorating, the  court has  the  power  to  order the sale of  the  property  after notice has been duly issued to the parties interested.      If  the  plaintiff  has finally obtained  a  decree  of condemnation  and sale of the ship, the court will issue  an order  to the competent officer commanding him to  sell  the property,  in  execution  of the decree, and  to  bring  the proceeds  into  court.  Thereupon the  officer  shall  issue proper  notice and arrange for the sale of the  property  by auction.   The  proceeds  of  the sale  are  paid  into  the registry of the court and shall be disposed of by the  court according to law.      A personal action may be brought against the  defendant if  he  is  either  present in the  country  or  submits  to jurisdiction.   If  the foreign owner of  an  arrested  ship appears  before the court and deposits security as bail  for the  release  of his ship against which proceedings  in  rem have been instituted, he submits himself to jurisdiction.      An action in rem is directed against the ship itself to satisfy the claim of the plaintiff out of the res.  The ship is for this purpose treated as a person.  Such an action may constitute  an  inducement  to the owner to  submit  to  the jurisdiction of the court, thereby making himself liable  to be  proceeded against by the plaintiff in personam.  It  is, however, imperative in an action in rem that the ship should be  within  jurisdiction  at the time  the  proceedings  are started.  A decree of the court in such an action binds  not merely  the parties to the writ but everybody in  the  world who might dispute the plaintiff’s claim.                                                   1042      It is by means of an action in rem that the arrest of a particular  ship is secured by the plaintiff.  He  does  not sue the owner directly and by name; but the owner or any one

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 50  

interested  in the proceedings may appear and  defend.   The writ  is  issued to "owners and parties  interested  in  the property  proceeded  against."    The  proceedings  can   be started  in England or in the United States in respect of  a maritime  lien,  and in England in respect  of  a  statutory right  in rem. A maritime lien is a privileged claim against the  ship or a right to a part of the property in the  ship, and  it  "travels" with the ship.  Because the ship  has  to "pay  for the wrong it has done", it can be compelled to  do so  by  a forced sale.  (See The Bold Buccleaugh,  (1851)  7 Moo.  PC  267).  In addition to maritime liens,  a  ship  is liable to be arrested in England in enforcement of statutory rights in rem (Supreme Court Act, 1981).  If the owner  does not  submit to the jurisdiction and appear before the  court to  put  in bail and release the ship, it is  liable  to  be condemned  and sold to satisfy the claims against her.   If, however,  the owner submits to jurisdiction and obtains  the release  of  the  ship by depositing  security,  he  becomes personally  liable to be proceeded against  in  personam  in execution of the judgment if the amount decreed exceeds  the amount of the bail.  The arrest of the foreign ship by means of an action in rem is thus a means of assuming jurisdiction by the competent court.      The admiralty action in rem, as practised in England or in  the  United  States, is unknown to the  civil  law.   In countries  following  the  civil  law,  all  proceedings are initiated  by  actions in personam.  The  President  of  the Court having competence in the matter has the power to order an  attachment  of  the ship if he  is  convinced  that  the plaintiff is likely to lose his security unless the ship  is detained within jurisdiction.  His hands are not fettered by the technicalities of an action in rem and the scope of  the proceedings  are not limited to maritime liens  or  claims.* According  to  the French law, arrest of a ship  is  allowed even  in respect of non-maritime claims and whether  or  not the  claimant is a secured or unsecured creditor.  A  vessel may  be arrested either for the purpose of   mobilising  the vessel as security (Saisie conservatoire) or in execution of judgment (Saisie Execution) whether or not the claim has any relation  to  the  vessel.  Arrest of  the  vessel  has  the advantage  of  forcing  the owner  to  furnish  security  to guarantee  satisfaction  of any decree that  may  be  passed against him.  On ----------------------------- *     See  D.C.  Jackson, Enforcement  of  Maritime  Claims,       (1985) Appendix 5, p. 437 et seq.                                                        1043 furnishing sufficient security with the Court, he is usually allowed to secure the release of the vessel. Maritime law is part  of  the  general law of France and  other  ‘civil  law countries’  and  is  dealt with by the  ordinary  courts  or tribunals.  The  presence of any property belonging  to  the defendant   within  the  territorial  jurisdiction   confers jurisdiction  on the French Court. (See the  observation  of Lord Diplock in The Jade (1976) 1 All. E.R. 921, 923).     The  real purpose of arrest in both the English and  the 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,  and the vessel is treated as any other property  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 50  

the  owner,  and its very presence  within  jurisdiction  is sufficient   to   clothe   the   competent   tribunal   with jurisdiction  over the owner in respect of any  claim.  (See D.C.Jackson, Enforcement of Maritime Claims, (1985) Appendix 5).  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.     Maritime  law  is as much a part of  the  general  legal system  as any other branch of the law. With the  merger  of the  Admiralty and Common Law Courts in England in 1875  and the fusion of their legal precepts and concepts, this branch of the law, despite its peculiarities about actions in  rem, is  no longer treated as a separate and independent  branch. It is not the exclusive preserve of the English High  Court, for  certain  county courts in that  country  are  specially authorised to exercise this jurisdiction. This is much  more true  of the civil law system where no distinction is  drawn between maritime law and other branches of the law, and they are administered alike by the same courts or tribunals.     It  may  not  be  correct  to  say  that  the  admiralty jurisdiction of the English Courts is dependent entirely  on statutes. It may be true in a very limited sense as  regards the  jurisdiction of the High Court after the merger of  the High  Court of Admiralty with the High Court of  Justice  by the                                                        1044 Supreme Court of Judicature Act, 1873 which came into  force in 1875: See Supreme Court of Judicature (Commencement) Act, 1874.   Even  so,  statutes  are  codifications   of   legal principles  developed by the decisions of Courts  and  those principles  remain  the  life-blood  of  the  statutes.  The observation  of Lord Diplock in The Jade (1976) 1 All.  E.R. 920, on which much reliance is placed by Mr. Ramachandran in support of his arguments, has to be so understood. (See also Halsbury’s Laws of England, Vol. 1, para 307).     Remedy  for enforcement of maritime liens was  available prior  to the introduction of statutes. "Admiralty  law  was derived  from the laws of Oleron, supplemented by the  civil law"  Per Lord Halsbury, L.C; Currie v. M.Knight, [1897]  AC 97.  For a long time the Admiralty Court developed  the  law independently  fighting  its  battles with  the  Common  Law Courts  on  the question of  jurisdictional  boundaries.  By statutory  intervention  the  court  structure  came  to  be unified and substantive rights and remedies became available without   regard  to  jurisdictional  boundaries.   Although statutes now control the field, much of the admiralty law is rooted in judicial decisions and influenced by the impact of civil law, common law and equity. The ancient maritime codes like  the  Rhodian  Sea Law, the Basilika,  the  Assizes  of Jerusalem,  the  Rolls  of Oleron, the Laws  of  Visby,  the Hanseatic  Code,  the Black Book of the  British  Admiralty, Consolato del Mare, and others are, apart from statute, some of the sources from which the law developed in England.  Any attempt  to  confine admiralty or maritime  law  within  the bounds  of statutes is not only unrealistic  but  incorrect. Although  this branch of the law in England is now  governed generally  by  statutes, the law in all its aspects  can  be understood only by viewing it in the context of decisions of courts and the general principles which are common to common law and equity.     Unlike  in  the  "civil  law  countries",  there  is  no maritime code in England containing all aspects of  maritime

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 50  

law. The Merchant Shipping Acts and the Carriage of Goods by Sea   Act   contain   the   substantive   rules,   but   the jurisdictional and other aspects of maritime claims have  to be  traced to numerous other statutes and  sources.  English Maritime Law ‘is still composed of rules having their  roots in  statute,  rules  of  court  and  judicial  doctrine   of Admiralty,  common  law  and  equity’.  (See  D.C.  Jackson, Enforcement  of  Maritime  Claims,  1985,  p.9).  See   also Halsbury, op. cit., Vol. (1), para 307. As Christopher  Hill puts it: "..... Britain is a                                                        1045 common   law  country  and  that  Admiralty  law  has   been superimposed over the years by various statutory  enactments from  time  to time. The right to seize a  vessel  by  legal process  is  therefore partly based on rights  conferred  by general maritime law and partly upon the right to take legal action  of  this nature granted by statute  ....".  Maritime Law, 2nd ed. p. 93.     In tracing the history of admiralty law in India, it  is likewise misleading and incorrect to confine it to statutes. Statutes  have  been  codifications  of  rules  of  law   as developed  by  usage,  practice and  custom.  As  stated  by Westropp, C.J., of the Bombay High Court in Bardot & Anr. v. The  American Ship Or Vessel ‘Augusta’, 1873(x) Bombay  High Court Reports, 110, at p. 113:-          "...If we have jurisdiction to entertain this suit,          it  must be sought for in the general maritime  law          administered     by     Courts     of     Admiralty          ...................................................          ....  we  must hold it to be quite clear  that  the          Statutes  3 & 4 Vict. c. 65 (1840), 24 Vict. c.  10          (1861),  and  26 & 27 Vict. c. 24  (1863),  do  not          increase  or  in any wise affect  our  jurisdiction          either in Admiralty or Vice-Admiralty, and that  if          we have jurisdiction to entertain this cause,  that          jurisdiction  must  be  sought  for  outside  those          Statutes."     Where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise  procedural rules by analogy and expediency.  Actions in  rem,  as  seen above, were resorted to by  courts  as  a device to overcome the difficulty of personal service on the defendant  by compelling him to enter appearance and  accept service  of summons with a view to furnishing  security  for the release of the res; or, in his absence, proceed  against the  res itself, by attributing to it a personality for  the purpose of entering a decree and executing the same by  sale of the res. This is a practical procedural device  developed by   the  courts  with  a  view  to  rendering  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 or the carriage of goods  or  other maritime transactions, or tortious acts, such as  conversion or  negligence occurring in connection with the carriage  of goods.  Where substantive law demands justice for the  party aggrieved,  and the statute has not provided the remedy,  it is the duty of the court to devise                                                        1046 procedure  by drawing analogy from other systems of law  and practice.  To  the courts of the "civil  law  countries"  in Europe and other places, like problems seldom arise, for all persons  and  things  within  their  territories  (including their  waters)  fall within their competence to  deal  with. They  do not have to draw any distinction between an  action

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 50  

in rem and an action in personam.     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 interlocutory  orders for arrest and attachment before judgment.     The  High Court in India are superior courts of  record. They  have  original and appellate jurisdiction.  They  have inherent  and plenary powers. Unless expressly or  impliedly barred,  and  subject  to  the  appellate  or  discretionary jurisdiction  of this Court, the High Courts have  unlimited jurisdiction, including the jurisdiction to determine  their own powers. (See Naresh Shridhar Mirajkar and Ors., v. State of  Maharashtra  and Anr., [1966] 3 SCR 744.  As  stated  in Halsbury’s Laws of England. 4th edition, Vol. 10, para 713 :          "Prima facie, no matter is deemed to be beyond  the          jurisdiction  of  a  superior court  unless  it  is          expressly  shown to be so, while nothing is  within          the jurisdiction of an inferior court unless it  is          expressly shown on the face of the proceedings that          the  particular matter is within the cognizance  of          the particular court."     The  observation of this Court in Raja Soap Factory  and Others v. S.P. Shantharaj and Others, [1965] 2 SCR 800, that section 151 of the Code of Civil Procedure did not confer on the  High  Court  jurisdiction which  was  not  specifically vested  was made in the context of section 105 of the  Trade and  Merchandise  Marks Act (43 of 1958) which  conferred  a specific  jurisdiction in respect of a passing  off  action. That observation is not                                                        1047 relevant to the question regarding the inherent and  plenary jurisdiction  of  the  High Court as  a  superior  court  of record. The Andhra Pradesh High Court, as a successor to the Madras  High  Court, is vested with all  the  appellate  and original  jurisdiction, including admiralty jurisdiction  to order the arrest and detention of a ship.     In decisions such as Jayaswal Shipping Company v.  ‘S.S. Leelavati’, AIR 1954 Calcutta 415; Kamalakar Mahadev  Bhagat v.  Scindia  Steam  Navigation Co. Ltd.,  Bombay,  AIR  1961 Bombay 186; Rungta Sons Private Ltd. & Anr. v. S.S.  ‘Edison Mariner’  & Anr., 1961-62 (66) Calcutta Weekly  Notes  1083; National  Co.  Ltd. v. Asia Mariner, 1967-68  (72)  Calcutta Weekly notes 635; Mrs. Sahida Ismail v.Petko R. Salvejkov  & Ors., AIR 1973 Bombay 18 and Smt. Reena Padhi v.  ‘Jagdhir’, AIR  1982  Orissa  57,  the  High  Courts  took  an   unduly restrictive  view of the courts’ admiralty  jurisdiction  by limiting  it  to what was permitted by the  Admiralty  Court Act,  1861 and the Colonial Courts of Admiralty  Act,  1890. This  was,  in  our  view,  an  unjustified  abdication   of jurisdiction  and  a self-assumed fetter  on  competence  to render justice.     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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 50  

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 recognised 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  also  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. It is                                                        1048 time to take a fresh look at the old precedents.     In this connection we would refer to the recent decision of  this  Court in Delhi Judicial Service  Association,  Tis Hazari Court, Delhi v. State of Gujarat & Ors., JT 1991  (3) SC 617. This Court stated :          ".....The  constitution has assigned a new role  to          the Constitutional Courts to ensure rule of law  in          the  country......  Time has come to have  a  fresh          look  at  the old precedents and to  lay  down  law          with  the changed perceptions keeping in  view  the          provisions of the Constitution......" See  also S.P. Gupta v. Union of India, [1982] 2  SCR,  365, 520-521, 597-598.     It  is  well  recognised in  international  law  that  a merchant ship, though generally governed by the laws of  the flag State, subjects itself to the jurisdiction of a foreign State as it enters its waters. The Geneva Convention on  the Territorial Sea and Contiguous Zone, 1958 and the Law of the Sea Convention, 1982 affirm that the  sovereignty of a State extends over its internal and territorial waters.*     "A  foreign vessel, no matter what flag she flies,  owes temporary and local allegiance to the sovereign of any  port to  which  she  comes.  And the persons  in  such  a  vessel likewise must obey the law and regulations of the port. Such jurisdiction is discretionary. Once a foreign vessel  passes out  of territorial waters, she owes no further duty to  the place which she has left, unless she is ‘hotly persued’. But her conduct on the high seas or in foreign ports may subject her  to  penalties  on returning  on  a  subsequent  visit". (Benedict,  The  Law of American Admiralty,  Sixth  Edition, pages 121 & 122).     In  the  words of Chief Justice Marshal  of  the  United States Supreme Court "it would be obviously inconvenient and dangerous to society and would subject the laws to continual infraction,  and  the  government to  degradation,  if  such (alien) individuals or merchants (trading in ships) did  not owe temporary and local allegiance, and were not amenable to the  jurisdiction of the country." (The Schooner Exchange v. M’ Faddon & Ors., ------------------------------ *   See   Nagendra   Singh,   International   Maritime   Law Conventions, British Shipping Laws, Vols. I to IV.                                                        1049

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 50  

[1812] 11 U.S. (7 Cranch) 114, 143.)     All  foreign  merchant ships and  persons  thereon  fall under the jurisdiction of a coastal State as they enter  its waters.  Subject  to the right of  ‘innocent  passage’,  the coastal  State  is free to exercise jurisdiction  over  such ships in respect of matters the consequence of which  extend beyond  the  ships.  Such ships are  subject  to  the  local jurisdiction in criminal, civil and administrative  matters. This  jurisdiction  is, however, assumed only when,  in  the opinion of the local authorities, the peace or  tranquillity of  the port is disturbed, when strangers to the vessel  are involved  or  when the local authorities  are  appealed  to. Questions  which affect only the internal order and  economy of  the  ship are generally left to the authorities  of  the flag   State.   Coastal  States  are  entitled   to   assume jurisdiction  in respect of maritime claims against  foreign merchant ships lying in their waters. These ships are liable to be arrested and detained for the enforcement of  maritime claims.  The courts of the country in which a  foreign  ship has  been  arrested  may determine the  cases  according  to merits, provided they are empowered to do so by the domestic law of the country or in any of the cases recognised by  the International Convention relating to the Arrest of  Seagoing Ships,  Brussels, 1952.* The maritime claims in  respect  of which  the  power  of arrest is recognised  in  law  include claims  relating  to  damage caused by any  ship  either  in collision or otherwise; claims relating to carriage of goods in any ship whether by charterparty or otherwise, loss of or damage to goods etc. These principles of international  law, as  generally  recognised by nations, leave no  doubt  that, subject  to  the  local laws regulating  the  competence  of courts,  all  foreign  ships lying within the  waters  of  a State, including waters in ports, harbours, roadsteads,  and the   territorial   waters,  subject   themselves   to   the jurisdiction of the local authorities in respect of maritime claims   and  they  are  liable  to  be  arrested  for   the enforcement of such claims.     In  India, carriage of goods by sea is governed  by  the Indian  Bills  of Lading Act, 1856, the Indian  Carriage  of Goods by Sea Act, 1925, the Merchant Shipping Act, 1958, and general  statutes, such as the Marine Insurance  Act,  1963, the  Contract Act, 1872, the Evidence Act, 1872, the  Indian Penal  Code, 1860, the Transfer of Property Act,  1882,  the Civil ----------------------------- *   See   also   the  International  Conventions   for   the Unification of Certain Rules relating to Maritime Liens  and Mortgages of 10th April, 1926 and May 27, 1967.                                                        1050 Procedure Code, 1908, the Criminal Procedure Code, 1973, the Companies  Act,  1956,  etc.etc.  as  well  as  the  general principles  of  law  such as the law  of  tort,  public  and private international law etc. In this connection, reference may also be made to the Indian Ports Act, 1908 and the Major Port  Trusts Act, 1963 concerning the administration of  the port  and the jurisdiction over ships in port,  the  Customs Act,  1962 containing various regulatory measures  affecting ships,  goods and persons in connection with importation  or exportation  of goods, as well as the  provisions  governing employment  of labour. The Indian Bills of Lading Act,  1856 emphasises  the  negotiable and other characteristics  of  a bill  of  lading. The Carriage of Goods by  Sea  Act,  1925, contains  the Hague Rules regulating  the respective  rights and  liabilities  of the parties to a contract  governed  by bills  of lading or similar documents of title for  carriage

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 50  

of  goods by sea "from any port in India to any  other  port whether  in India or outside India". The  Merchant  Shipping Act  embodies rules regarding registration of Indian  ships; transfers   or  mortgages  of  ships  or  shares;   national character  and flag; employment of seamen;  safety,  nuclear ships;   collisions,   accidents  at  sea   and   liability; limitation   of   liability;   navigation;   prevention   of pollution;  investigation and enquiries; wreck and  salvage; coasting  trade; sailing vessels; penalties  and  procedure, etc.  Many of these provisions have been adopted from  rules formulated by various international conventions.     It   is  true  that  Indian  statutes  lag  behind   the development   of   international  law   in   comparison   to contemporaneous  statutes  in  England  and  other  maritime countries.  Although  the Hague Rules are  embodied  in  the Carriage  of  Goods by Sea Act, 1925, India never  became  a party  to  the International Convention  laying  down  those rules  (Internationl  Convention  for  the  Unification   of Certain  Rules of Law relating to Bills of Lading,  Brussels 1924).  The  Carriage  of  Goods by  Sea  Act,  1925  merely followed the (United Kingdom) Carriage of Goods by Sea  Act, 1924.  The United Kingdom repealed the Carriage of Goods  by Sea  Act, 1924 with a view to incorporating the Visby  Rules adopted  by the Brussels Protocol of 1968.  The  Hague-Visby Rules  were accordingly adopted by the Carriage of Goods  by Sea Act, 1971 (United Kingdom). Indian legislation has  not, however,  progressed, notwithstanding the Brussels  Protocol of  1968  adopting  the Visby Rules or  the  United  Nations Convention  on the Carriage of Goods by Sea,  1978  adopting the  Hamburg Rules. The Hamburg Rules prescribe the  minimum liabilities  of  the carrier far more justly  and  equitably than the Hague Rules so as to correct the tilt in the latter in favour                                                        1051 of  the  carriers. The Hamburg Rules are acclaimed to  be  a great improvement on the Hague Rules and far more beneficial from  the point of view of the cargo owners. India has  also not  adopted  the International Convention relating  to  the Arrest  of  Sea-going Ships, Brussels, 1952. Nor  has  India adopted the Brussels Conventions of 1952 on civil and  penal jurisdiction  in  matters  of collision;  nor  the  Brussels Conventions of 1926 and 1967 relating to maritime liens  and mortgages.*  India  seems to be lagging  behind  many  other countries   in   ratifying  and  adopting   the   beneficial provisions  of  various conventions intended  to  facilitate international  trade.  Although these conventions  have  not been adopted by legislation, the principles incorporated  in the  conventions are themselves derived from the common  law of   nations   as   embodying  the   felt   necessities   of international  trade and are as such part of the common  law of  India  and applicable for the  enforcement  of  maritime claims against foreign ships.     The   Merchant  Shipping  Act,  1958  contains   various provisions  to  enforce territorial  jurisdiction.  The  Act being  essentially  regulatory  in  character,  the  various authorities,   tribunals  and  Courts  entrusted  with   the administration   and  enforcement  of  its  provisions   are specifically stated. The High Court is defined under section 3(15) as follows :          "3(15).  ‘High  Court’, in relation  to  a  vessel,          means  the  High Court within the limits  of  whose          appellate jurisdiction -          (a) the port of registry of the vessel is situate;          (b) the vessel is for the time being; or          (c) the cause of action wholly or in part arises;"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 50  

----------------------------     (a)  International Convention relating to the Arrest  of Seagoing Ships, Brussels, 10 May 1952 (IMC);     (b) International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, Brussels, 10 May 1952 (IMC);     (c)  International  Convention for  the  Unification  of Certain  Rules relating to Penal Jurisdiction in Matters  of Collision, Brussels, 10 May 1952 (IMC); and (d) International Conventions for the Unification of Certain Rules  of  Law  relating to  Maritime  Liens  and  Mortgages Brussels,  10  April  1926, and the  Revised  Convention  on Maritime Liens and Mortgages, Brussels, 29 May 1967 (IMC).                                                        1052 Accordingly,  a foreign ship falls within  the  jurisdiction of  the  High Court where the vessel happens to  be  at  the relevant  time - i.e., at the time when the jurisdiction  of the  High  Court is invoked, or, where the cause  of  action wholly or in part arises.     The  detention of a foreign ship is authorised in  terms of sections 443 and 444. In view of their vital significance in  the enforcement of maritime jurisdiction, we shall  read these  two  sections  in  full.  Section  443  defines   the character and scope of the power of detention:          "S.  443.  Power to detain foreign  ship  that  has          occasioned damage. - (1) Whenever any damage has in          any  part  of  the world been  caused  to  property          belonging  to the Government or to any  citizen  of          India  or a company by a ship other than an  Indian          ship and at any time thereafter that ship is  found          within  Indian  jurisdiction, the High  Court  may,          upon the application of any person who alleges that          the damage was caused by the misconduct or want  of          skill  of the master or any member of the  crew  of          the  ship,  issue an order directed to  any  proper          officer  or  other  officer  named  in  the   order          requiring him to detain the ship until such time as          the   owner,  master  or  consignee   thereof   has          satisfied  any  claim in respect of the  damage  or          has given security to the satisfaction of the  High          Court  to  pay all costs and damages  that  may  be          awarded  in  any  legal  proceedings  that  may  be          instituted  in  respect  of  the  damage,  and  any          officer to whom the order is directed shall  detain          the ship accordingly.          (2) Whenever it appears that before an  application          can be made under this section, the ship in respect          of  which the application is to be made  will  have          departed  from India or the territorial  waters  of          India,  any proper officer may detain the ship  for          such  time as to allow the application to  be  made          and  the result thereof to be communicated  to  the          officer detaining the ship, and that officer  shall          not  be liable for any costs or damages in  respect          of the detention unless the same is proved to  have          been made without reasonable grounds.          (3)  In  any legal proceedings in relation  to  any          such  damage aforesaid, the person giving  security          shall be made a defendant and shall for the purpose          of such proceeding be deemed to be                                                        1053          the  owner  of  the ship that  has  occasioned  the          damage."                                          (emphasis supplied)     The  power of enforcement of an order of detention of  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 50  

foreign ship is dealt with by section 444.          "S. 444. Power to enforce detention of ship. -  (1)          Where  under  this  Act a  ship  is  authorised  or          ordered to be detained, any commissioned officer of          the Indian Navy or any port officer, pilot, harbour          master,  conservator of port or  customs  collector          may detain the ship.          (2)  If any ship after detention, or after  service          on the master of any notice of, or order for,  such          detention proceeds to sea before she is released by          competent  authority, the master of the ship  shall          be guilty of an offence under this sub-section.          (3) When a ship so proceeding to sea takes to  sea,          when on board thereof in the execution of his  duty          any  person authorised under this Act to detain  or          survey the ship, the owner, master or agent of such          ship  shall each be liable to pay all expenses  of,          and  incidental to, such person being so  taken  to          sea  and shall also be guilty of an  offence  under          this sub-section.          (4) When any owner, or master or agent is convicted          of an offence under sub-section (3), the convicting          magistrate  may  inquire  into  and  determine  the          amount  payable  on  account of  expenses  by  such          owner,  master or agent under that sub-section  and          may  direct that the same shall be  recovered  from          him  in  the manner provided for  the  recovery  of          fines." These  provisions  relate to detention by reason  of  damage caused  in  any  part  of the world by  a  foreign  ship  to property  belonging  to  the Government of India  or  to  an Indian  citizen or company. The sections are wide  in  terms and  the expression ‘damage’ is not necessarily confined  to physical  damage.  Ordinarily damage is caused  by  physical contact  of the ship, such as in collision. But  damage  can also be caused to property by breach of contract or acts  of commission  or  omission on the part of the carrier  or  his agents or servants by reason of the negligent operation  and management  of  the vessel, as, for example, when  cargo  is damaged by exposure to                                                        1054 weather  or by negligent stowage; or, by the  misconduct  of those in charge of the ship, like when cargo is disposed  of contrary  to the instructions of the owner or by  reason  of theft and other misdeeds. In all these cases, damage  arises by  reason of loss caused by what is done by the ship or  by the breach, negligence of misdeeds of those in charge of the ship. It must however be noticed that the expression ‘damage done  by any ship’ has been construed by the English  Courts as  not  to apply to claims against the  carrying  ship  for damage  done to cargo. In the Victoria 1887 12 PD  105,  the Court  so  construed section 7 of the Admiralty  Court  Act, 1861  (24 Victoriae c. 10)*. It has been held to apply  only to  physical damage done by a ship by reason of  its  coming into contact with something. See The Vera Cruz,  [1884] 9 PD 96; Currie v. M.Knight, [1897] AC 97 and The Jade, [1976]  1 All.  E.R.  920. In view of the specific provisions  of  the English  statutes  of  1920, 1925, 1956  and  1981,  it  was unnecessary   for  the  English  Courts  to   construe   the expression  broadly  so as to include cargo claims  and  the like. The last two enactments contain an exhaustive list  of maritime  claims and questions in regard to which  the  High Court  can exercise jurisdiction over any merchant  ship  by arresting it as it enters the waters of Britain. This power, as   already   noticed,  is  available,  whatever   be   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 50  

nationality  of  the ship or its owner or  the  domicile  or place of residence or business of the owner, or wherever the cause of action has arisen. About the words ‘damage done  by a  ship’ in section 7 of the Admiralty Court Act,  1861  and the decision in The Victoria [1887] 12 PD 105 to the  effect that  the section had no application to claims  against  the carrying ship for damage to cargo, the following observation significantly appears in Halsbury’s Laws of England, 4th ed. Vol. I (1), para 319 N. 12.          "...but  this question is academic in the light  of          the fact that jurisdiction in respect of claims for          damage to cargo carried in a ship is now  expressly          given by the Supreme Court Act 1981 s. 20(2)(g)."     In  the  absence of any statute in India  comparable  to the English statutes on admiralty jurisdiction, there is  no reason why the words ‘damage caused by a ship’ appearing  in section 443 of the Merchant Shipping Act, 1958 should be  so narrowly construed as to limit them to ------------------------------ *   Section  7 reads :     "The  High  Court of Admiralty shall  have  jurisdiction over any Claim for Damage done by any ship."                                                        1055 physical  damage  and exclude any other  damage  arising  by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to  include all maritime questions or claims. If goods or other property are  lost  or  damaged,  whether  by  physical  contact   or otherwise,  by  reason  of unauthorised  acts  or  negligent conduct  on  the  part of the shipowner  or  his  agents  or servants,  wherever  the  cause of  action  has  arisen,  or wherever the  ship is registered, or wherever the owner  has his residence or domicile or place of business, such a ship, at  the  request of the person aggrieved, is  liable  to  be detained  when found within Indian jurisdiction by  recourse to  sections 443 and 444 of the Merchant Shipping Act,  1958 read with the appropriate rules of practice and procedure of the  High Court. These procedural provisions are  but  tools for  enforcement of substantive rights which are  rooted  in general principles of law, apart from statutes, and for  the enforcement  of which a party aggrieved has right to  invoke the inherent jurisdiction of a superior court.     The Indian Carriage of Goods by Sea Act, 1925 applies to carriage  of goods by sea under bills of lading  or  similar documents  of title from a port in India to any  other  port whether  in  or  outside India. (See  section  2).  The  Act imposes certain responsibilities and liabilities and confers certain rights and immunities upon the carrier (see Articles III  &  IV). In respect of a claim relating  to  an  outward cargo, the cargo owner has a right to bring a suit against a shipowner  subject  to the period  of  limitation  specified under   Act,  namely,  one  year  [Article  III  (6)].   The substantive  rights recognised by the statute are  of  equal application to foreign merchant ships as they are to  Indian merchant  ships. The Carriage of Goods by Sea Act does  not, however,  contain any provision for the enforcement  of  the right  by  arresting  the foreign  vessel  found  in  Indian waters.  In  the  absence of  arrest,  no  effective  remedy against a foreign owner may be available to the cargo owner. The  same is the position with regard to claims relating  to cargo  carried  under  a  charterparty.  It  is,  therefore, necessary  that  he  should  have  recourse  to  the  remedy available to him under the Merchant Shipping Act. That  Act, as  stated  earlier, confers a right to arrest a  vessel  in respect of any damage caused by a ship. If that  expression,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 50  

in  the  absence of any other more appropriate  statute,  is understood sufficiently broadly as an enabling provision  to effectively assume jurisdiction over a foreign ship for  the enforcement of a substantive right recognised by law,  there would be no difficulty in finding a remedy for the right the law has conferred on the cargo owner.                                                        1056     The  Merchant Shipping Act empowers the  concerned  High Court to arrest a ship in respect of a substantive right.  A right conferred by the Indian Carriage of Goods by Sea  Act, 1925  in  respect of outward cargo is one  of  those  rights which can be enforced by arrest and detention of the foreign ship in order to found jurisdiction over the vessel and  its owners, just as it can be done in respect of inward cargo by reason of the substantive rights conferred by the  Admiralty Court  Act, 1861 read with the Colonial Courts of  Admiralty Act,  1890, and other rules of law. The same principle  must hold good for carriage under a charterparty. These and other laws,  such as the law of contract, tort,  crime,  mortgage, marine  insurance, customs, port operations, etc.,  and  the Civil  and Criminal Procedure Codes as well as the  relevant rules  of court regulating procedure and  practice  together constitute  the  body  of substantive  and  procedural  laws governing  claims relating to inward and outward cargo,  and such  claims  are  enforceable  against  foreign  ships   by recourse   to  arrest  and  detention  when   found   within jurisdiction. Viewed  in this light, and by this  reasoning, the Andhra Pradesh High Court, as a successor to the  Madras High Court, does not lack admiralty jurisdiction in  respect of claims relating to outward cargo.     The   admiralty  jurisdiction  of  the  High  Court   is dependent  on  the presence of the foreign  ship  in  Indian waters  and  founded  on  the  arrest  of  that  ship.  This jurisdiction  can  be assumed by the concerned  High  Court, whether or not the defendant resides or carries on business, or  the cause of action arose wholly or in part, within  the local  limits  of its jurisdiction. Once a foreign  ship  is arrested within the local limits of the jurisdiction of  the High Court, and the owner of the ship has entered appearance and furnished security to the satisfaction of the High Court for  the release of the ship, the proceedings continue as  a personal action.     The Merchant Shipping Act, 1958 provides a detailed code of  substantive and procedural rules regulating shipping  as an  industry  control  exercised over it  by  the  competent authorities   in  confirmity  with   various   international conventions which have, under the auspices of  International Organisations  such  as  the IMO or  the  ILO,  unified  and developed  various  aspects of  shipping  laws.  Conventions regulating sea traffic, safety of life at sea, employment of seamen,  wages,  hours of work, social  security,  etc.  are cases  in point. Likewise, the substantive rules  concerning transport  of  goods are contained in the  Indian  Bills  of Lading  Act,  1856 and the Indian Carriage of Goods  by  Sea Act,  1925.  But  the  jurisdictional  questions  concerning arrest                                                        1057 of  foreign  ships  for enforcement of  claims  against  the shipowner  as a transporter of goods, which in  England  are regulated  by  the  Supreme  Court Act  1981,  are  in  many respects  left unregulated by Indian legislation. While  the provisions  of various international conventions  concerning arrest of ships, civil and penal jurisdiction in matters  of collision,  maritime  liens  and mortgages  etc.  have  been incorporated  into  the  municipal  laws  of  many  maritime

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 50  

States, India, as stated above, lags behind them in adopting these  unified rules.* By reason of this void, doubts  about jurisdiction  often  arise,  as in the  present  case,  when substantive rights, such as those recognised by the Carriage of  Goods by Sea Act, are sought to be enforced. The  remedy lies,  apart  from  enlightened  judicial  construction,  in prompt   legislative  action  to  codify  and  clarify   the admiralty  laws  of  this country.  This  requires  thorough research and investigation by a team of experts in admiralty law,  comparative law, and public and private  international law.  Any  attempt to codify without such  investigation  is bound to be futile.     No Indian statute defines a maritime claim. The  Supreme Court  Act,  1981  of England  has  catalogued  claims  with reference  to  the  unified rules adopted  by  the  Brussels Convention of 1952 on the Arrest of Seagoing Ships.** -------------------------------- *   See for example, the Brussels Conventions listed above.     See also the Administration of Justice Act, 1956 and the     Supreme Court Act, 1981 incorporating the  international     rules into English law. **  International Convention for the Unification of  Certain     Rules   relating  to  the  Arrest  of  Seagoing   Ships,     Brussels,  May  10, 1952. Article 1 of  this  Convention     reads:     (1) "Maritime Claim" means a claim arising out of one or         more of the following:     (a)  damage  caused by any ship either in  collision  or          otherwise;(b)  loss  of  life  or  personal  injury          caused by any ship or occurring in connection  with          the operation of any ship;(c) salvage;(d) agreement          relating to the use or hire of any ship whether  by          charterparty or otherwise;(e) agreement relating to          the  carriage  of  goods in  any  ship  whether  by          charterparty or otherwise; (f) loss of or damage to          goods  including baggage carried in any  ship;  (g)          general  average;  (h)  bottomry;  (i)  towage  (j)          pilotage; (k) goods or materials wherever  supplied          to  a  ship for her operation or  maintenance;  (l)          construction,  repair or equipment of any  ship  or          dock  charges  and  dues;  (m)  wages  of  Masters,          Officers,  or  crew;  (n)  Master’s  disbursements,          including    disbursements   made   by    shippers,          charterers         or agents on behalf of a ship or          her owner; (o)         disputes as to the title  to          or  ownership  of  any          ship;(p)   disputes          between  co-owners  of any ship as          to  the          ownership,   possession  employment   or   earnings          of that ship; (q) the mortgage or hypothecation  of          any ship.                                 footnote contd. on next page                                                        1058 Although   India  has  not  adopted  the  various   Brussels Conventions*,  the provisions of these Conventions  are  the result  of international unification and development of  the maritime laws of the world, and can, therefore, be  regarded as the international common law or transnational law  rooted in  and  evolved out of the general principles  of  national laws,   which,   in  the  absence  of   specific   statutory provisions,  can  be  adopted  and  adapted  by  courts   to supplement and complement national  statutes on the subject. In the absence of a general maritime code, these  principles aid  the  courts in filling up the lacunae in  the  Merchant Shipping  Act  and  other  enactments  concerning  shipping. "Procedure  is but a handmaiden of justice and the cause  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 50  

justice  can  never  be  allowed  to  be  thwarted  by   any procedural  technicalities." S.P. Gupta v. Union  of  India, [1982] 2 SCR, 365, 520, 521.     It   is   important  to  remember  that   the   Brussels Convention on Arrest of Ships merely restricts or  regulates the  power  of  the coastal States and is  not  intended  to confer power which they did not otherwise have as  sovereign States. ‘Arrest’ to which the convention refers is detention of  a ship to secure a maritime claim, and not seizure of  a ship in execution or satisfaction of judgment.     The  judicial power of this country, which is an  aspect of  national  sovereignty  is vested in the  people  and  is articulated  in the provisions of the Constitution  and  the laws and is exercised by courts empowered to exercise. It is absurd  to confine that power to the provisions of  imperial statutes  of  a  bygone age. Access to  court  which  is  an important   right  vested  in  every  citizen  implies   the existence  of  the  power of the  Court  to  render  justice according  to  law.  Where statute is  silent  and  judicial intervention   is   required,  Courts  strive   to   redress grievances  according to what is perceived to be  principles of justice, equity and good conscience.     In the words of Chief Justice Marshal :- ----------------------------------     (2)"Arrest" means  the detention of a ship  by  judicial process to secure a maritime claim, but does not include the seizure  of  a  ship  in  execution  or  satisfaction  of  a judgment. (3)  "Person" includes individuals, partnerships and  bodies corporate,   Governments,  their  Departments,  and   Public Authorities. (4)  "Claimant" means a person who alleges that  a  maritime claim  exists  in  his favour. See  the  Conventions  listed above.                                                        1059          "The  jurisdiction  of courts is a branch  of  that          which is possessed by the nation as an  independent          sovereign  power.  The jurisdiction of  the  nation          within  its own territory is necessarily  exclusive          and absolute.          It  is susceptible of no limitation not imposed  by          itself....".          The  Schooner  Exchange  v. M’Faddon  &  Ors.  U.S.          Supreme  Court Reports, Cranch 5-9, p. 114, 133  (3          L.ed. 287).     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  administering  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.     All persons and things within the waters of a State fall within  its  jurisdiction unless specifically  curtailed  or regulated by rules of international law. The power to arrest a foreign vessel, while in the waters of a coastal State, in respect of a respect of a maritime claim, wherever  arising, is  a demonstrable manifestation and an essential  attribute of  territorial  sovereignty. This power  is  recognised  by several   international  conventions.*   These   conventions contain the unified rules of law drawn from different  legal systems.  Although many of these conventions have yet to  be ratified by India, they embody principles of law  recognised

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 50  

by  the generality of maritime States, and can therefore  be regarded as part of our common law. The want of ratification of these conventions is apparently not because of any policy disagreement,  as is clear from active and  fruitful  Indian participation  in  the formulation of rules adopted  by  the conventions,  but  perhaps because of  other  circumstances, such  as lack of an adequate and specialised  machinery  for implementation  of the various international conventions  by coordinating  for the purpose the concerned  Departments  of the  Government.  Such  a  specialised  body  of  legal  and technical experts can facilitate adoption of internationally unified  rules  by national legislation. It  is  appropriate that sufficient attention is paid to this aspect of the ---------------------------- *   See the Conventions referred to above. See also Nagendra Singh, International Maritime Conventions, British  Shipping Laws, Vol.4                                                        1060 matter  by  the  concerned  authorities.   Perhaps  the  Law Commission  of  India,  endowed  as  it  ought  to  be  with sufficient  authority,  status and independence, as  is  the position  in  England,  can render  valuable  help  in  this regard.  Delay in the adoption of international  conventions which are intended to facilitate trade hinders the  economic growth of the nation.      The British statute assimilating Indian High Courts  to the  position  of  the  English High  Court  in  respect  of admiralty jurisdiction is an enabling legislation and it  is but  one of the strands of jurisdiction vested in  the  High Court  by  virtue  of the  constitutional  provisions.   The jurisdiction   of  the  High  court  is  governed   by   the Constitution  and the laws, and the continuance in force  of the  existing laws in not a fetter but an additional  source of power.  Access to court for redressal of grievance  being an important right of every person, it is essential that the jurisdiction  of  the courts is construed  harmoniously  and consistently  with  its vital function in that  respect,  so that absence of legislation will not jeopardise that right.      Admiralty  jurisdiction, despite the  peculiarities  of its  origin  and  growth-rooted  as it  is  in  history  and nurtured  by the growing demands of international  trade  is nevertheless  a part of the totality of jurisdiction  vested in  the High Court as a superior court of record, and it  is not  a  distinct and separate jurisdiction as was  once  the position  in England before the unification of courts.   The 1890   and  1891  Acts  specifically   conferred   admiralty jurisdiction  on the Indian High Courts by reason  of  their being courts of unlimited jurisdiction.  These Acts did  not create  any  separate or distinct jurisdiction,  but  merely equated  the  Indian  High Courts to  the  position  of  the England  High Court (united and consolidated as  that  Court has  been since 1875) for the exercise of  admiralty  powers within  the jurisdiction of the former.  The  contrary  view expressed  in  some  of the decisions  of  the  High  Courts referred to earlier is clearly wrong.      Once a foreign ship is arrested in Indian waters by  an order  of  the  High Court, in  exercise  of  the  admiralty jurisdiction vested in it by statute, 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 furnishing security, proceeding must continue  against the  owner as in any other suit.  The arrest of  the  vessel while  in  Indian waters by an order of the  concerned  High Court,  as  defined under the Merchant  Shipping  Act,  1958

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 50  

[section                                                        1061 3(15)]  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  is executable against any property of  the  owner available   within  jurisdiction,  including  the   security furnished by him for release of the vessel.      All  foreign ships entering Indian waters are  presumed to  know  that  they fall within the  jurisdiction  of  this country during their stay here.  The vessel in question  was lying in the Port of Vishakhapatnam when she was arrested in respect  of a cause of action relating to cargo.   The  sole contention  of  the defendants as regards  jurisdiction  was that  no  High Court in India was  invested  with  admiralty jurisdiction to order the arrest of the vessel in respect of a cause of action relating to outward cargo because  section 6  of the Admiralty Court Act, 1861 (read with the  Colonial Courts   of  Admiralty  Act,  1890)   conferring   admiralty jurisdiction  on Indian High Courts confined it  to  ‘claims for  damage  to cargo imported’.  This  contention  for  the reasons  we have stated, has no merits.  The High Court,  in our view, rightly assumed jurisdiction by the arrest of  the vessel while it was lying in the port of Vishakhapatanam.      The High Court of Andhra Pradesh undoubtedly  possesses jurisdiction  over  claims relating to  inward  and  outward cargo.   In the circumstances, the preliminary objection  to the  jurisdiction  of  the Andhra  Pradesh  High  Court  was totally devoid of merits.      Accordingly,  the appeal arising from SLP(C) No.  10542 of  1985  has to be dismissed.  In the light  of  our  order dated  28th August, 1991 allowing the Civil Appeal No.  3392 of 1991 filed by the 3rd defendant against the order of  the High Court dismissing the petition for condonation of  delay in presenting O.S.A.S.R. No. 39789 of 1988, the  Transferred Case No. 27 of 1987 arising from the judgment of the learned Single  judge  decreeing the plaintiff’s suit  and  the  3rd defendant’s appeal have to be heard and disposed of together on  the merits, and the right forum for the purpose will  be the   High   Court  itself.   In  the   circumstances,   the Transferred  Case No. 27 of 1987 has to be returned  to  the High Court.      R.M.  SAHAI, J. Admirality jurisdiction, an  unfamiliar branch   of   jurisprudence,  was  the  object   matter   of illuminating debate in this appeal directed against judgment of  the Andhra Pradesh High Court.  But what was  surprising to hear, even, in 1991 was that the admirality  jurisdiction exercised                                                        1062 by  the High Courts in Indian Republic is still governed  by the  obsolete English Admiralty Courts Act,  1861  (referred hereinafter  as  ‘the Act’) applied  by  (English)  Colonial Courts  of  Admiralty Act, 1890 (in brief  ‘1890  Act’)  and adopted  by Colonial Courts of Admirality (India) Act,  1891 (Act  XVI of 1891).  Yet there appeared no escape  from  it, notwithstanding its unpleasant echo in ears.  The shock  was still greater when it transpired that this state of  affairs is  due to lack of legislative exercise, even, when in  wake of decision of this Court in State of Madras v. C.G.Menon  & Ors.,  [1955]  1  S.C.R.  280,  that  ‘Article  372  of  the Constitution  cannot save this law (Fugitive  Offenders  Act 1881*) because the grouping is repugnant, to the concept  of a sovereign democratic republic.’, the Law Commission in its Fifth  Report on British Statutes applicable to  India  went into detail on scope of Article 372 of the Constitution  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 50  

observed  that  the British statutes  which  were  expressly applicable   to   India  because  India  was   a,   ‘British possession’  are  still supposed to be applicable  to  India without  any change in the context, therefore, it  impressed upon the urgency as far back as 1957 to enact, ’own laws  on the  subject matter of those statutes where it is  necessary to  do so and take legislative action making it  clear  that these  statutes  are no longer applicable   to  India.’   In pursuance of this recommendation exercise was undertaken and (The) British Statutes (Applicable to India) Repeal Act 1960 (Act 57 of 1960) was enacted on 26th December 1960 repealing as many as 259 statutes mentioned in the Schedule.  But  the Admirality  jurisdiction remained untouched.  In respect  of Colonial  Courts of Admiralty Act the recommendation of  the Commission was that, ‘ The necessary substantive  provisions of the English Statute may be incorporated into our Act  XVI of  1891  so  as to make it  the  comprehensive  Indian  law relating  to courts of admirality.’   Unfortunately  nothing was  done.  Neither the law was made up-to-date and  brought in  line  with  international conventions  on  maritime  law passed in 1952 etc. nor even the salient features of English law  as amended by Administration of Justice Act, 1920,  and 1956  were adopted.  And rights and interests of citizen  of the independent sovereign state continued to be governed  by legislations enacted for colonies by the British Parliament. Various  provisions in 1890 Act have been rendered not  only anomalous  but  even derogatory to the  sovereignty  of  the State.   No further need be said except to express the  hope that  the unfortunate state of affairs shall be  brought  to end at the earliest.      Be  that  as it may the intricate  issue  of  Admiralty jurisdiction of the -------------------- Bracket supplied.                                                        1063 Andhra  Pradesh  High  Court a successor of  High  Court  of Madras, to entertain a suit for arrest of a foreign ship for tort committed by the owner or master of ship while carrying cargo  outside  India  has to be decided on the  law  as  it stands.   Entire thrust of attack, against direction by  the High  Court  for arrest of the foreign ship,  was  found  on absence  of  any provision in 1861 Act empowering  the  High Court  to exercise jurisdiction over any claim by the  owner or  consignee of India in respect of bill of lading  of  any goods  carried out of any Indian port in any  foreign  ship. True Sections 5 to 8 and 10 to 11 conferring jurisdiction on High Court of Admiralty do not provide for it.  Section 6 is confined  to,  ‘any  claim  by the  owner  or  consignee  or assignee of any Bill of Lading of any goods carried into any port in England or Wales in any ship (to be read as India by virtue of proviso to sub-section 3 of Section 2 of  Colonial Courts of Admiralty Act 1890*) for damage done to the  goods or  any part thereof by the Negligence or misconduct  of  or any  breach of duty’.  But this Act had on application  till 1890.  Before it the High Court of Madras enjoyed  Admiralty jurisdiction  under  the  Madras  Supreme  Court  Act,  then Letters  Patent  of 1862 and 1865.  Finally it  came  to  be governed  by 1890 Act, enacted, to amend the law  respecting to   exercise   of   Admiralty   jurisdiction   in   British possession.’   It was under sub-section (1) of Section 2  of this  Act  read  with Section 2 of 1891 act  that  the  then Presidency  High  Courts, being courts  of  unlimited  civil jurisdiction, were declared court of Admiralty.  Sub-section (2)  of Section 2 of 1890 Act spelt out the jurisdiction  of Admiralty courts.  It reads as under:-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 50  

        "(2)  The  jurisdiction  of  a  Colonial  Court  of          Admiralty shall, subject to the provisions of  this          Act, be over the like places, persons, matters, and          things,  as the Admiralty jurisdiction of the  High          Court in England, whether existing by virtue of any          statute  or  otherwise, and the Colonial  Court  of          Admiralty  may exercise such jurisdiction  in  like          manner  and to as full an extent as the High  Court          in England, and shall have the same regard as  that          Court  to  international  law  and  the  comity  of          nations." Each  part of the sub-section is inclined towards  expanding jurisdiction.   It  not only declared those over  which  the court could exercise jurisdiction but it also amplified  the manner and extent of exercise of jurisdiction.  It was  made co-extensive  with  the jurisdiction exercised by  the  High Court  in  England.   Use of the  expression,  ‘existing  by virtue of any Statute or ---------------------------------------------- *  Bracket supplied.                                                        1064 otherwise’, widened the operative field extending the  limit and  authority to exercise jurisdiction beyond any  existing statute, to custom practice or in any other manner in  which it   could  be  exercised.   It  was  recognition  of   wide jurisdiction exercised by the High Court of England.      What  then  was  the jurisdiction  that  the  Court  of England  exercised  in  1890  ? The  law  of  Admiralty  was developed  by English courts both as a matter of  commercial expediency and due to equity and justice.  Originally it was a  part  of common law jurisdiction, but the  difficulty  of territorial  limitations, constraints of common law and  the necessity  to  protect the rights and interests of  its  own citizens  resulted  in  growth of maritime  lien  a  concept distinct from common law of equitable lien as it  represents a  charge on maritime property of a nature unknown alike  to the common law or equity.  The Privy Council explained it as ‘a claim or privilege upon a thing to be carried into effect by  legal  process.   *  Law  was  shaped  by  exercise   of discretion   to  what  appeared  just  and  proper  in   the circumstances  of  the case.  Jurisdiction was  assumed  for injurious act done on high seas and the scope was  extended, ‘not  only  to  British subjects but  even  to  aliens.   ** Maritime  law  has  been exercised all  over  the  world  by Maritime powers. In England it was part of Municipal law but with  rise of Britain as empire the law grew and it is  this law,  that  is, ‘Maritime Law that is  administered  by  the Admiralty Court’***.  From the Maritime law sprang the right known  as Maritime lien ascribing personality to a ship  for purposes  of  making good loss or damage done by it  or  its master or owner in tort or contract.  In England it grew and developed  in  course of which its scope  was  widened  from damage done by a ship to claims of salver, wages, Bottomrey, supply  of  necessaries and even to bills  of  lading.   Its effect  was  to give the claimant a charge on res  from  the moment  the  lien  arose which follows the res  even  if  it changed hands.  In other words a maritime lien represented a charge  on  the  maritime  property.   The  advantage  which accured to the maritime lienee was that he was provided with a  security for his claim up to the value of the  res.   The essence  of right was to identify the ship as wrongdoer  and compel it by the arrest to make good the loss.  Although the historical review in England dates back to the 14th  Century but  its statutory recognition was much later and  ‘maritime law  came to jurisprudential maturity in the first  half  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 50  

the 19th Century’.**** ----------------------------------------- *      The Bold Buccleugh, (1851) 7 Moo.P.C.267. **     The hailey, L.R.2 PC 193. ***    Halsbury’s Laws of England, IVth Edn., Vol. 1. ****   Maritime Liens by D.R. Thomas.                                                        1065 And  the first statutory recognition of such right  came  in 1840  when  the  Admiralty Court Act  of  1840  was  enacted empowering the admiralty court to decide all questions as to the  title  or  ownership  of any  ship  or  vessel  or  the procedure thereof remaining in the territory arising in  any cause  of possession, salvage, damage, wages  or  bottomrey. By clause (6) of the Act jurisdiction was extended to decide all  claims and demands whatsoever in the nature of  salvage for  services rendered to or damage received by any ship  or sea  going  vessel  or  in  the  nature  of  towage  or  for necessaries supplied to any foreign ship or sea-going vessel and the payment thereof whether such ship or vessel may have been  within the body of a country or upon the high seas  at the time when the services were rendered or damage  received or  necessary furnished in respect of such claims.  But  the most  important Act was passed in 1861 which expanded  power and  jurisdiction of courts and held the field till  it  was replaced  by  Administration  of  Justice  Act,  1920.   The importance of the Act lay in introducing the statutory right to  arrest the res on an action in rem.  Section 35  of  the 1861 Act provided that the jurisdiction by the High Court of Admiralty could be exercised either by proceedings in rem or proceedings  in  personam.   ‘The  essence  of  the  rem  in procedure  is that ‘res’ itself becomes, as one  might  say, the  defendant,  and ultimately the ‘res’ the  ship  may  be arrested by legal process and sold by the Court to meet  the plaintiff’s  claim.  The primary object, therefore,  of  the action in rem is to satisfy the claimant out of the  ‘res’*. If the 1840 Act was important for providing statutory  basis for various types of claims then 1861 Act was a step forward in  expanding the jurisdiction to claims of bill of  lading. Section 6 of the Act was construed liberally so as to confer jurisdiction and the expression ‘carried into any port  was’ was  expanded to mean not only when the goods were  actually carried but even if they were to be carried.**  Further  the section  was interpreted as providing additional remedy  for breach of contract.***  By the jurisdiction Act of 1873  the court  of  Admiralty was merged in High  Court  of  justice. Result  was that it obtained jurisdiction over all  maritime cases.   Therefore, what was covered by enactments could  be taken  cognisance of in the manner provided in the  Act  but there was no bar in respect of any cause of action which was otherwise cognizable and arose in Admirality.  Section 6  of 1861 Act was confined to claim by the owner or consignee  or assignee of any bill of lading of any goods carried into any port ------------------------------------------ *    Maritime Law by Christopher Hill. **   The Ironsides, 167 English Reports 205, The St.  Cloud, 167 English Report 269, The Norway, 167 English Report 347. ***  The Ironsides, 167 English Reports 205.                                                        1066 in  England or Wales (to be read as India).  But it did  not debar  any action or any claim by the owner or consignee  or assignee  of any bill of lading in respect of cargo  carried out  of  the port.  Even if there was no provision  in  1861 Act, as such, the colonies could not be deprived under  1890 Act from exercising jurisdiction on those matters which were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 50  

not  provided  by 1861 Act but could be  exercised  or  were otherwise  capable of being exercised by the High  Court  of England.   ‘The theory was that all matters arising  outside the  jurisdiction of common law i.e. outside the body  of  a country were inside the jurisdiction of Admiralty’*.   ‘That this  court  had originally cognisance  of  all  transaction civil  and  criminal, upon the high seas, in which  its  own subjects  were concerned, is no subject  of  controversy’**. To  urge,  therefore, that the Admirality  court  exercising jurisdiction under 1890 Act could not travel beyond 1861 Act would  be  going against explicit language of  the  Statute. Even  now, the Admiralty jurisdiction of the High  Court  of Justice  in England derived ‘partly from statute and  partly from    the   inherent   jurisdiction   of    Admiralty’***. Observations of Lord Diplock in the Jade**** that  Admiralty jurisdiction was statutory only have to be understood in the context  they  were  made.  By 1976  the  statutory  law  on Admiralty had become quite comprehensive.  Brother  Thommen, J.,   had  dealt  with  it  in  detail.    Therefore   those observations  are not helpful in deciding  the  jurisdiction that was exercised by the High Court in England in 1890.      From  what has been narrated above it is apparent  that law of Admiralty progressed gradually from ordinary  courts, to  courts  of  Admiralty  and  ultimately  to  High   Court commencing in commercial expediency, equity and justice  and ending with statutory enactments covering entire field  from collision  on  ships to cargo even.  All this  was  existing when  1890  Act was enacted.  But the statutes of  1840  and 1861  were  not  exhaustive and English  courts  could  take cognizance  for various wrongs either in tort  or  contract. Therefore, when colonial courts were conferred  jurisdiction it was not restricted or confined to statutes, as the  power was being conferred on High Courts which were, then and even now,  not  only courts of unlimited civil  jurisdiction  but higher courts possessed of every jurisdiction which was  not expressly or impliedly conferred on other courts.  The --------------------------------------- *    Carter History of English Courts. **   Lord Stowell in ‘The Hercules’ 2 Dod. 371. ***  Halsbury’s Laws of England, IVth Edn. Vol. 1. **** The Jade 1976 (1) All Eng. Reports 921.                                                        1067 word ‘otherwise’ literally means in a different way.  Effect of  its  use  in 1890 Act in law, was  to  confer  not  only statutory  jurisdiction possessed of by English  courts  but all  that which was being exercised or was capable of  being exercised  either under custom and practice or for  sake  of equity  and  justice.   In the Iron  Sides  (supra)  it  was observed  that Act of 1861 was passed not because the  power or  jurisdiction  prior  to  it did not  exist  but  no  one ventured to exercise it.  No such restriction was placed  on exercise of power under 1890 Act.  Rather the Act  permitted exercise  of  it and that too to its fullest  extent.   This deliberate   expansion  of  power  and  jurisdiction   after existence  of  two  statutes for  nearly  thirty  years  was founded on experience and necessity or arming the courts for every  dispute  that  could  arise  relating  to   Admiralty jurisdiction,  as  the law on Admiralty was a  growing  law. Its development could not be stiffled by its very nature. It was  with this intention that the Parliament used the  word, ‘otherwise’  in  1890 Act.  No word in a statute has  to  be construed   as   surplus-age.   Nor  it  can   be   rendered ineffective  or purposeless.  Courts are required  to  carry out  the legislative intent fully and completely.   The  two legislations  of  1840 and 1861 took care of  those  actions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 50  

which  appeared to be settled till then.  But they  did  not close the door for the growth of law.  They were enacted  to ‘improve  the Admiralty practice’ as the jurisdiction  which were conferred by the statutes were already being exercised. Action in personam or rem were not unknown.  It was provided statutory base only.  Statutes till 1920 in England were not creation of new rights but recognition of what was  existing by practice or custom.  It can thus be safely inferred  that the jurisdiction to entertain a claim for tort or breach  of contract  by  owner or master of ship while  carrying  cargo outside the port could be exercised or was capable of  being exercised  in 1890 by the High Court of England if  occasion arose.    The   rationale  of  extending   jurisdiction   in Admirality  over  cargo  carried  into  the  port  has  been existence  of a right in owner or consignee arising  out  of contract or agreement entered between him and the master  or owner  of  the ship.  It was the enforcement  of  the  right which was safeguarded by providing a remedy to arrest a ship if  the  goods were carried into any port.   Same  rationale applies to redress the owner of bill of lading if the master of  the  ship in breach of agreement entered into  any  port committed  tort  by acting against it in course  of  outward journey.  Such breach would have been actionable and a  suit could  be  filed in the court where agreement  was  entered. Basis  of Maritime Law has been necessity to provide  remedy for wrong done on high seas.  Inclusion or expansion of                                                        1068 jurisdiction  was in relation to any cause which could  have been  cognisable  under ordinary law.   Bottomrey,  salvage, seaman wages or towage are all causes for which action could be  brought  in  court  of law  but  their  enforcement  was rendered  illusory with disappearance of the  person  beyond territorial  waters.   To  overcome  this  difficulty   this jurisdiction was created making it actionable against person and  finally  the  res  itself.   What  was  basic  was  the existence  of  cause  of  action, arising  out  of  tort  or contract  in  relation to the master or owner of  the  ship. Applying  this  test  the cause of action  arose  in  Indian territory  and if the owner of the ship would have  remained in  this  country a suit for breach of contract  could  have been  filed.  Therefore the owner of bill of lading was  not precluded  from approaching the Admiralty court for  redress when  the  foreign  ship  which  was  guilty  of  violations appeared  in  Indian  waters.   On  this  construction   the colonial  courts could exercise the jurisdiction in  respect of cargo going outside the port in exercise of  jurisdiction under  Act of 1890 not on statutes but as the High Court  of England  could exercise such power.  Emphasis on absence  of any instance in which English courts assumed jurisdiction in respect  of goods carried out of English port was  searching for  existence of jurisdiction not in law but on  precedent. Test  is not whether the jurisdiction was ever exercised  by English   courts  but  whether  it  was  capable  of   being exercised.  If it could, then colonial courts were empowered to  exercise  it.   Reliance was placed  on  Yuri  Maru*,  a decision because of which the courts in Bombay and  Calcutta got  stuck, and could not see beyond 1861 Act.   Distinction on  facts, apart, the court was primarily concerned  if  the jurisdiction  of  colonial court expanded  or  dimunited  by change of jurisdiction of High Court of England by different enactments  passed from time to time.  Incidentally  it  was also  observed  that  there was conflict for  long  even  in England on advantage of extending the process in rem and  if a port of call could be benefited by existence of a power in all  and sundry to arrest vessels found within  its  limits.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 50  

This  observation  cannot be construed as  determinative  of limited jurisdiction possessed by the courts.  No effort was made  in the decision to adjudicate upon the impact  of  the expression  or  ‘even  otherwise’.   Rather  it  turned   on impossibility  of  automatic extension  of  jurisdiction  of colonial  court  to  exercise power under  the  English  law enacted  subsequently because of the use of word  ‘existing’ in 1890 Act.  Without entering into the controversy if  1890 Act was a legislation by -------------------------------------------------- *    1927 Appeal Cases 906.                                                        1069 reference  or  by incorporation and their  consequences,  on which arguments were addressed in extenso, suffice it to say that  in  absence  of any consideration  of  the  expression ‘otherwise’  this  Court  does not find  any  difficulty  in construing  the  expression as permissive  of  jurisdiction. Legislations  may create a right or  it  may  recognise  one founded  on  custom  or  practice.   Admiralty  statutes  in England  fell in latter category.  In such legislations  the background  of  enactment, the necessity to codify  it,  the propose  sought  to be achieved by it all  become  relevant. Admiralty jurisdiction in England was rooted in remote past. It  developed and expanded with rise and growth  of  Britain and  its recognition as a superior maritime power.  Law  and practice revolved round it.  Right to proceed against  owner of  ship  for  wrongs done on high  seas  was  accepted  and followed.   Statutes of 1840 and 1861  provided  legislative base only.  Viewed in the background of enactment of 1890 it would be too artificial to confine the exercise of power  by the  High Courts in Admiralty to what was contained in  1861 Act.  Even otherwise for deciding the jurisdiction exercised by the High Court in India founded on jurisdiction exercised by  the  High  Court of England it is not  necessary  to  be governed  by  the  decision given by  English  courts.   Law develops by pragmatic approach to problems arising under  an Act  and  not  by abdication or surrender, 1890  Act  is  an unusual  piece of legislation expansive in scope,  wider  in outlook,  opening out the wings of jurisdiction rather  than closing   in.    It’s  authority  and  power   to   exercise jurisdiction  was  linked with power exercised by  the  High Court  in  England, the width of which was not  confined  to statute but went deep into custom, practice, necessity,  and even exigency.      Law  of  1890 apart, can the Indian High  Courts  after 1950  be  denied jurisdiction to arrest a  foreign  ship  to satisfy  the  claim of owner of a bill of lading  for  cargo taken  outside  the  county?   Without  entering  into   any comparative  study of jurisdiction of High Court of  England and the High Courts in our country the one basic  difference that  exists today is that the English courts  derive  their creation, constitution and jurisdiction from  Administration of  Justice Act or Supreme Court Act but the High Courts  in our  country are established under the Constitution.   Under it   Article  225  preserved  the  jurisdiction,   including inherent  jurisdiction,  which  existed  on  the  date   the Constitution came into force and Article 226 enlarged it  by making  it not only a custodian of fundamental rights  of  a citizen but as                                                        1070 repository  of  power to reach its arms to  do  justice.   A citizen  carrying on business which is a  fundamental  right cannot be rendered helpless on premise that the jurisdiction of High Courts stood frozen either under statute of  England or any custom or practice prevailing there or the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 50  

of  England cannot exercise the jurisdiction.  Brother  T.K. Thommen, J., while dealing with right of rem and in personam has  considered  the justification for  conferment  of  such right to a claimant in respect of a merchant ship  traveling from port to port.  Can it be successfully urged today  that such  a ship or its master and owner is immune from tort  or breach  of  contract committed by him in  respect  of  cargo taken out of port.  A citizen of a colonial state may or may not but a citizen of an independent republic cannot be  left high  and  dry.   The  construction of  law  has  to  be  in consonance  with sovereignty of a state.   The  apprehension that  assumption  of such jurisdiction would be  on  general attributes of sovereignty is not well founded.  This coupled with expansive jurisdiction that the High Courts enjoyed  in relation to Admiralty under 1890 Act preserved under Article 225 provided justification for direction to arrest the ship, for the tortious act done by master or owner of the ship  in respect of goods carried outside the port even if there  was no  specific  provision  like Section 6  of  the  1861  Act. Entertaining  a claim arising out of breach of  contract  in relation  to cargo taken out of any Indian port pertains  to jurisdiction.  It must arise out of Statute.  But the  power to  direct arrest of a ship in exercise of the  jurisdiction is  one  relating to competency.  The High  Court  in  India being  courts of unlimited jurisdiction, repository  of  all judicial  power  under  the  Constitution  except  what   is excluded  are  competent to issue directions for  arrest  of foreign  ship in exercise of statutory jurisdiction or  even otherwise to effectuate the exercise of jurisdiction.  Since the jurisdiction to entertain a suit on tort or contract  in relation  to  cargo going out of the country in  a  ship  is found  to  exist  under 1890 Act the High  Court  of  Andhra Pradesh  was competent to direct arrest of the foreign  ship when   it  appeared  in  India  waters.   The  High   Court, therefore,   rightly  negatived  the  objection   to   issue direction to arrest the ship.      Necessity  to add few words to the opinion  of  brother Thommen,  J.,  arose without narrating facts  or  extracting sections  as they have been dealt in detail by him, both  to impress  upon  the  urgency of enacting  up-to-date  law  on Admiralty and to express agreement only on scope of 1890 Act as well as the extensive jurisdiction enjoyed by High Courts after 1950.                                                        1071                            ORDER      For  the  reasons  stated by us  in  our  separate  but concurring judgments dated 26.2.1992, we dismiss the  appeal arising from SLP(C) No. 10542 of 1985.  The Transferred Case No. 27 of 1987 is returned to the Andhra Pradesh High  Court to be heard and disposed of on the merits together with  the 3rd defendant’s appeal O.S.A.S.R. No. 39789 of 1988.      We make no order as to costs. G.N.                                        Appeal dismissed.                                                        1072