ADMIRALTY JURISDICTION AND ARREST OF SHIPS

1
SUBJECT MATTER OF ADMIRALTY JURISDICTION
Admiralty Law and jurisdiction is primarily concerned with the ships and
the sea.
It applies to persons, acts , events or things within the sea and also
those areas of land to the extent they are relevant to the maritime
adventure.
Term Sea or High Sea as used in Admiralty law is different from the
definition of the same term in Public International law ( Law of the Sea).

The term sea here denotes, an area which begins where the tide
touches the shore, whether at low or high water mark and extends all
over the world, to the coast of every country and up every bay, arm of
the sea and river so far as great ships go and it is not necessary to show
that tide reaches the spot , if it is accecible to sea going vessels.
- Francis Xavier Fernandes v. Emperor (AIR 1936 Sind 3)

Extra territoriality of admiralty Jurisdiction

Admiralty jurisdiction has no geographical limitation. (In the wide sense,
ie, in the sense of accrual of rights and duties and cause of action
cognizable in admiralty courts)
Admiralty Courts are still Municipal courts being part of the judicial
organ of the state.
Territoriality of admiralty law enforcement has to be distinguished from
the territoriality of admiralty law itself.
Territoriality of admiralty law enforcement is confined to the territorial
limits of the state itself.
Orders of the admiralty court does not run beyond the state territory.
 Admiralty court can issue warrant of arrest of ship only if the ship is
within the territory or territorial waters of the state. Castrique v. Imrie
(1870)

Within the state if there are more than one admiralty courts, the state
can assign jurisdictional limits to each court.
However, each such court will have admiralty jurisdiction in the wide
sense stated above.
In India, there is no provision limiting the jurisdiction of the admiralty
courts territorially or otherwise. (for further discussion seeP.108-112)

Three conditions for exercise of admiralty jurisdiction

1.Locality test: Whether the cause of action arose on the high seas or land.
2. Subject Matter test: Whether the subject matter is one that is cognizable
under the admiralty jurisdiction.
3. Persons test: Whether the proceedings is not taken against persons who
are by law exempted from the Courts jurisdiction like foreign sovereigns,
foreign public ships engaged in public business etc.

R. V. City of London (1892) (p.68)

On what does the jurisdiction of the Admiralty court depend? It does
not depend merely on the fact that something has taken place in the
high seas. That has happened there is no doubt, a necessary condition
for the jurisdiction of the admiralty court, but there is further question
what is the subject matter of that which has happened in the high seas?
It is not everything which takes place on the high seas which is within
the consideration of the admiralty court. A third consideration is with
regard to whom is the jurisdiction asserted? You have to consider three
things Locality, subject matter of the complaint and the person with
regard to whom the complaint is made. You must consider all these
 things in determining whether the Admiralty Court has jurisdiction..But
is any one of the three matters is wanting, the admiralty court may not
have jurisdiction Given the jurisdiction, whether the action is to be
one in rem or in personam is one of mere procedure.

The Zeta
.but no case was cited to your Lordships in which a prohibition has been
granted to restrain the exercise of jurisdiction by the admiralty court in
relation to a wrong committed on the high seas.
MV Tolten
the limiting rules of common law about venue were unknown in the court of
admiralty; and universality of the world area over which it administered justice
both civil and criminal affords a striking contrast to the restrictive rules of
common law jurisdiction.

Admiralty jurisdiction in India

First Admiralty Court in India was established in Bombay in Nov. 1684
under Charter of 1683.
High Courts of Calcutta , Bombay and Madras were established by the
Letters Patent of 1865.
These High Courts exercised admiralty Jurisdiction as were exercised in
the respective Charters of their predecessor Supreme Courts.

Wordings of the Charter as relevant to Admiralty Jurisdiction are as follows:

And it is our further will and pleasure and we do hereby grant, ordain,
establish and appoint that the said Supreme court of Judicature at..shall
be a court of Admiralty in and for (defined territory).
.Full power and authority to take cognisance of, hear, examine try and
determine all causes civil and maritimeall matters and contracts which in
any manner whatsoever, relate to freight or money due for ships.the
cognisance whereof doth belong to the jurisdiction of the Admiralty, as the
same is used and exercised in that part of Great Britain called England
without the strict formalities of law, considering only the truth of the fact
and the equity of the case.

The law administered in the Admiralty courts in India was the same as the
English admiralty law.
Law stood frozen as under the Charter constituting the Supreme Courts,
whereas the 1840 and 1861 Acts made considerable reforms in England.
Indian Courts refused to apply the reform legislations in England. Eg. The
Asia, American Vessel Augusta etc. (P.58)
Colonial Courts of Admiralty Act, 1890 updated the admiralty law .
Colonial Courts of Admiralty (India) Act, 1891 passed declaring the High
Court at Calcutta , Bombay and Madras as Colonial Courts of Admiralty.
Indian Courts thus became free to apply the provisions of the English
Admiralty Court Act of 1840 and 1861.

Post Independence - Admiralty jurisdiction as till then exercised continued

by virtue of Art 225 (Jurisdiction of existing High Courts shall be the same
as immediately before the commencement of this Constitution) and 372
(Continuance in force of existing laws and their adaptation-all the laws in
force in the territory of India immediately before the commencement of
this Constitution shall continue in force therein until altered or repealed
or amended by a competent Legislature or other competent authority) of
the Constitution of India.

Later British Statutes (Applicable to India) Repeal Act, 1960 repealed

259 statutes, but admiralty jurisdiction remained untouched.
Law in India remained static as on 1891.
In The YuriMaru,The Woron (1927 AC 906) the Privy Council held that
English Statutes (extending the admiralty jurisdiction) passed after the
 Colonial Courts of Admiralty Act, 1890 did not apply to the jurisdiction
of the Colonial Courts of Admiralty in British possessions. The admiralty
jurisdiction of the High Court of England as it existed at the time when
the Act (1890) passed. What shall from time to time be added or
excluded is left for independent legislative determination. (P102-103)
This dictum was accepted in the Judgments of various High Courts in
India. Court refused to apply subsequent British Legislations (eg. SCA
1981). (See generally AIR 1961 BOM 180, AIR 1973 BOM 18, AIR ORR.57,
AIR 1954 CAL 415 etc.)
This position continued till the Supreme court judgment in MV
ELIZABETH V. Harwan Investments Pvt. Ltd. ( AIR 1993 SC 1014)

MV ELIZABETH
Salient Features:
1. Admiralty jurisdiction is part of the totality of jurisdiction vested in the
High Courts of India as superior courts of record.
2. CCAA, 1890 did not incorporate any particular English Statute into Indian
law for the purpose of conferring admiralty jurisdiction. It only
assimilated the competent courts of India to the position of the English
High Courts in the exercise of Admiralty Jurisdiction.
3. Any expansion of Admiralty Jurisdiction of the High Courts in England
was intended likewise to expand the jurisdiction of the Colonial Court of
Admiralty.
4. Admiralty Jurisdiction of Indian High Courts is not confined to sec. 6 of
the ACA 1861.
5. Maritime claims catalogued in SCA 1981 can be entertained by Indian
Admiralty Courts.
6. The maritime claims in the 1952 Brussels Convention are to be regarded
as common law of the sea and trans national law rooted in and evolved
out of the general principles of national law and in the absence of
 specific statutory provisions they can be adopted and adapted by courts
to supplement and complement national statutes on the subject.
7. The Yuri Maru was distinguished. (p 105)

Outstanding issues:
1. Territorial Jurisdiction of Admiralty Courts In India.(p108)
2. Lack of Original Civil Jurisdiction in many of the High Courts unlike the
Chartered High Courts of Calcutta, Bombay and Madras.
3. Definition of Maritime Claims.
4. Scope of applicability of Arrest Conventions.
5. Rules to govern Admiralty Jurisdiction. ( Free Neptune Case (2011 (1)
KLT904)

Few Supreme Court Judgments touching on Admiralty Jurisdiction subsequent

to MV ELIZABETH
1. AIR 1996 SC 516 VIDESH SANCHAR NIGAM V. KAPITAN KUD
2. AIR 1998 SC 2330 WORLD TANKER CARRIER CORP
3. AIR 2000 SC 2826 MV AL QUAMAR
4. AIR 2003 SC 24 WON FU

Claims as enumerated in the Supreme Court Act, 1981.

This Act provides means for the enforcement of maritime claims
against the relevant ship and not the cause of action which must have
arisen.
Sec.20 out lines the extent of courts jurisdiction to entertain such claims
on their merits.
Sec.21 specifies the mode of bringing a maritime claim in the Admiralty
court by commencing a claim either in personam [s. 21 (1)] or in rem
[s.21(2)-(8)]
In England, the Civil Procedure Rules 1998 (CPR- Rule 61) lays down the
procedural rules for the admiralty claims.
 CPR changed the terminology but retained in rem and in personam.
Term action was changed to claim
See generally (P. 8, 25 to 62)

International Convention Relating to the Arrest of Sea-Going Ships, 1952

"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
connexion 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;
(1) 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 agent 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.

(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.

International Convention on the Arrest of Ships, 1999

Article 1
Definitions
For the purposes of this Convention:
1. "Maritime Claim" means a claim arising out of one or more of the
following:
(a) loss or damage caused by the operation of the ship;
(b) loss of life or personal injury occurring, whether on land or on water,
in direct connection with the operation of the ship;
(c) salvage operations or any salvage agreement, including, if
applicable, special compensation relating to salvage operations in
respect of a ship which by itself or its cargo threatened damage to the
environment;
(d) damage or threat of damage caused by the ship to the environment,
coastline or related interests; measures taken to prevent, minimize, or
remove such damage; compensation for such damage; costs of
reasonable measures of reinstatement of the environment actually
undertaken or to be undertaken; loss incurred or likely to be incurred by
third parties in connection with such damage; and damage, costs, or loss
of a similar nature to those identified in this subparagraph (d);
(e) costs or expenses relating to the raising, removal, recovery,
destruction or the rendering harmless of a ship which is sunk, wrecked,
stranded or abandoned, including anything that is or has been on board
such ship, and costs or expenses relating to the preservation of an
abandoned ship and maintenance of its crew;
 (f) any agreement relating to the use or hire of the ship, whether
contained in a charter party or otherwise;
(g) any agreement relating to the carriage of goods or passengers on
board the ship, whether contained in a charter party or otherwise;
(h) loss of or damage to or in connection with goods (including luggage)
carried on board the ship;
(i) general average;
(j) towage;
(k) pilotage;
(l) goods, materials, provisions, bunkers, equipment (including
containers) supplied or services rendered to the ship for its operation,
management, preservation or maintenance;
(m) construction, reconstruction, repair, converting or equipping of the
ship;
(n) port, canal, dock, harbour and other waterway dues and charges;
(o) wages and other sums due to the master, officers and other members
of the ship's complement in respect of their employment on the ship,
including costs of repatriation and social insurance contributions payable
on their behalf;
(p) disbursements incurred on behalf of the ship or its owners;
(q) insurance premiums (including mutual insurance calls) in respect of
the ship, payable by or on behalf of the shipowner or demise charterer;
(r) any commissions, brokerages or agency fees payable in respect of the
ship by or on behalf of the shipowner or demise charterer;
(s) any dispute as to ownership or possession of the ship;
(t) any dispute between co-owners of the ship as to the employment or
earnings of the ship;
(u) a mortgage or a "hypothque" or a charge of the same nature on the
ship;
(v) any dispute arising out of a contract for the sale of the ship.
Principal differences in 1952 and 1999
List of maritime claims expanded.
unpaid insurance premiums
disputes arising from contracts for sale of the ship
wreck removal
port, canal and pilotage dues
unpaid commissions, brokerages and agency fees
damage or threat of damage to the environment
Closed list in 1952, but environmental damages in 1999 list is an open
one.
Option of re- arrest and multiple arrest in 1999 subject to conditions.
(Admiralty Court Rules) Calcutta, Bombay and Madras
Madras Rules:
Madras High Court Rules
ORDER XLII
RULES FOR REGULATING THE PROCEDURE AND PRACTICE IN CASES
BROUGHT BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS
IN THE EXERCISE OF ITS ADMIRALTY JURISDICTION
2. A suit shall be instituted by a plaint drawn up, subscribed and
verifying according to the provisions of the Code save that if the suit is
in rem, the defendants may subject to such variation as the
circumstances may require, be described as "the owners and parties
interested in" the vessel or other property proceeded against instead of
by name.

3. In suits in rem a warrant for the arrest of property may be issued at

the instance either of the plaintiff or of the defendant at any time after
the suit has been instituted, but no warrant of arrest shall be issued
until an affidavit by the party or his agent has been filed, and the
following provisions complied with :
(A) The affidavit shall state the name and description of the party at
 whose instance the warrant is to be issued, the nature of the claim or
counter-claim, the name and nature of the property to be arrested, and
that the claim or counter claim has not been satisfied .
(B) In a suit of wages or of possession, the affidavit shall state the
national character of the vessel proceeded against; and if against a
foreign vessel, that notice of the institution of the suit has been given to
the consul of the State to which the vessel belongs, if there be one
resident in Madras and a copy of the notice shall be annexed to the
affidavit.
(C) In a suit of bottomry, the bottomry bond and if in a foreign language
also a notarial transaction thereof, shall be produced for the inspection
and perusal of the Registrar, and a copy of the bond, or of the
translation thereof, certified to be correct shall be annexed to the
affidavit.
(D) In a suit of distribution of salvage, the affidavit shall state the
amount of salvage money awarded or agreed to be accepted, and the
name and address and description of the party holding the same.

8.In suits in rem, service of summons or warrant against ship, freight or

cargo on board is to be effected by nailing or affixing the original writ or
warrant for a short time on the main mast or on the single mast of the
vessel and by taking off the process leaving a true copy of it nailed or
affixed in its place.

9. If the cargo had been landed or transhipped, service of the writ or

warrant to arrest the cargo and freight shall be effected by placing the
writ of summons or warrant for a short time on the cargo and by on
taking off the process, leaving a true copy upon it.

10. If the cargo be in the custody of a person who will not permit access
to it, service of the writ or warrant may be made upon the custodian.
 11. In a suit in rem, any person not named in the writ may intervene and
appear on filing an affidavit showing that he is interested in the property
under arrest or in the fund in the Registry.

Caveat: 26. The party desiring to prevent the arrest of any property may
cause a Caveat against the issue of a warrant for the arrest thereof to be
entered in the Registry.

27. For this purpose he shall cause to be filed in the Registry a notice,
signed by himself or by his attorney undertaking to enter an
appearance` in any suit that may be instituted against the said property
and to give security in such suit in a sum not exceeding an amount to be
stated in the notice, or to pay such sum into the Registry, and a Caveat
against the issue of a warrant for the arrest of the property shall
thereupon be entered in the register of Admiralty suits.

28. Before issuing a warrant for arrest of the property, the Registrar
shall ascertain whether or not any Caveat has been entered against the
issue of a warrant for the arrest thereof.

29. An attorney instituting a suit against any property in respect of

which a Caveat has been entered in the register of Admiralty Suits shall
forthwith serve a copy of the plaint upon the party on whose behalf the
Caveat has been entered or upon his attorney.

30. Within three days from the service of a copy of the plaint, the party
on whose behalf the Caveat has been entered shall, if the sum in which
the suit has been instituted does not exceed the amount for which he
has undertaken, give security in such sum or pay the same into the
 Registry, or if it exceeds that amount give security in the sum in which
the suit has been instituted or pay the same into the Registry.

31. After the expiration of twelve days from the service of a copy of the
plaint, if the party on whose behalf the Caveat has been entered shall
not have given security in such sum, or paid the same into the Registry,
the Plaintiff's attorney may proceed with the suit by default and have it
heard: Provided that the Court may, on good cause shown and on such
terms as to payment of costs as it may impose, extend the time for
giving security or paying the money into the Registry.

45. A Caveat, whether against the issue of warrant, the release of

property, or the payment of money out of the Registry, shall not remain
in force for more than six months from the day of the date thereof.

Mode of exercise of Admiralty jurisdiction

Admiralty jurisdiction could by claims in rem or in personam.
During the time of conflict between the common law court and the
Admiralty Court, in rem proceedings could be taken out only against the
ship.
This marked the beginning of truly in rem causes which involved
claims concerned with proprietary rights on the ship and maritime liens
and in which the defendant was the ship. (meaning actions in rem in
which the res was the ship itself).
Those maritime claims which did not concern with proprietary rights on
the ship or maritime liens were known as non truly in rem. They are
Statutory rights by way of action in rem. They were the other maritime
claims created under the Admiralty Courts Acts of 1840 and 1861
 A distinction between truly and non truly in rem claims and in rem and
in personam proceedings has always been maintained in the mode of
exercise of jurisdiction.
The truly in rem claims can be brought against the relevant ship without
considerations of who would be liable in personam for the claim, or who
is the beneficial owner of the ship arrested.
This is because, the maritime lien is attached to the ship, the mortgage
is a legal or equitable right in a ship, claims of ownership or possession
of a ship are rights in a ship.

Whereas, when a non truly in rem action is brought against a ship,

considerations of ownership or liability in personam are taken into account.
The origins of Non truly in rem claims:
Statutory rights by way of an action in rem were first created by ACA 1840.
Further rights of the same kind were created by ACA 1861. Later the Judicature
(consolidation) Act, 1925 expanded the list of claims which could be enforced
by an action in rem. This was further extended by Administration of Justice
Act, (AJA) 1956 and finally by the Supreme Court Act, 1981. See observation in
The Monica S (P71).

Triple Functions of the in rem proceedings:

It assists the claimant ,
1. To obtain security for the claim
2. To invoke jurisdiction of English court on the merits of the claim
3. Regarding non truly in rem claims, to have the right in rem crystallized on
the property from the time of issue of the in rem claim form.
(The Civil Procedure rules 1998 CPR provides that a claim in rem is started
by the issue of an in rem claim form as set out in the practice direction)
(P.115)
The crystallization of non-truly in rem claims on the property.
This was established in 1967 by the decision of Brandon J in The Monica
S.(1967)
This is a land mark decision regarding the rights of purchasers of a ship who
may purchase the ship after the issue of the in rem proceedings.
This decision was impacted by the decision in The Indian Grace. (1998)

The Monica S: Cargo owners claimed for damages to the cargo. A writ in
rem was issued. At the time of issue of the writ the ship was named
MONICA SMITH and was owned by S. Before the writ was served, ship
was transferred to T and was re-named MONICA S. The writ was later
amended and was served on T. The new owner T entered in appearance
and sought to set aside the writ. T then sold the ship to another person.
T then claimed that non lien or charge arose against MONICA S. ( p.72)

Brandon J had to decide whether a change in ownership of the ship

occurring after the institution of proceedings but before service of
process or arrest defeated the statutory right of action in rem.
Motion of T was rejected.
Brandon J relied on The Pacific, The Princess Charlottee, The
Troubadour, The Aneroid, The Heinrich Bjorn, The Sara, The Cella, The
Beldis.
He also relied on sec.3 (4) of the AJA 1956- may be invoked by an
action in rem against that ship if at the time the action is brought
(P.75)

The gist of Brandon J judgment is that,

With the institution of suit in rem, a contingent right of security is
created upon the ship which will be brought into effect by the arrest of
the ship, regardless of change of ownership between the issue and the
arrest.
 He preferred to protect maritime claimants because a purchaser would
be able to rely on the contractual indemnity obtained from the seller if
he did not become insolvent by the time it was discovered that the ship
bought was encumbered by maritime liens or other maritime claims
giving cause for arrest of the ship. As far as statutory rights in rem are
concerned, a purchaser can carry out a search in the Admiralty Registry.
(Fn 30 p 75)

Theories on who is the defendant in in rem proceedings

Two Schools.
1. Procedural Theory (in rem is an means of compelling the defendant
liable for the claim to appear in court and defend personally.)p.77
2. Personification theory (action is against the res and it develops from
maritime liens which attach on the ship from the moment of the incident
that gave rise to the claim.)p.77
3. The Procedural Theory gained acceptance among English Judge over
personification theory
4. The Dictator (1892): Owners are personally liable to pay amounts of the
award which exceeding the bail amount. (P.78)
5. The Indian Grace (1993)- Again procedural theory was emphasized when
it was held that the real defendant in the in rem proceedings is the
person interested in the ship who appears in the action to defend the
asset and the claim. (p.80)

Section 443 in The Merchant Shipping Act, 1958

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 the owner of the ship that
has occasioned the damage.

MV Elizabeth on Sec. 443

PARA 14 OF THE JUDGMENT
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 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

Code of Civil Procedure, 1908 and Admiralty Jurisdiction

Sec 4 (1) and Sec.112 (2) of the CPC, 1908 have kept the admiralty law
and jurisdiction in India separate from Ordinary Civil Jurisdiction.
(p. 15).
Sec 4 - Savings
(1) In the absence of any specific provision to the contrary, nothing in
this Code shall be deemed to limit or otherwise affect any special or
local law now in force or any special jurisdiction or power conferred, or
any special form of procedure prescribed, by or under any other law for
the time in force.

PART 7- Sec.112 Savings-

(1) Nothing contained in this Code shall be deemed-
(a) to affect the powers of the Supreme Court under Article 136 or any other
provision of the Constitution, or
(b) to interfere with any rules made by the Supreme Court, and for the time
being in force, for the presentation of appeals to that Court, or their conduct
before that Court.]
(2) Nothing herein contained applies to any matter of criminal or admiralty
or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize
Courts.

PART 9 - Sec. 140-

(1) In any admiralty or vice-admiralty cause of salvage, towage or collision, the
Court, whether it be exercising its original or its appellate jurisdiction, may, if
it thinks fit, and shall upon request of either party to such cause, summon to
its assistance, in such manner as it may direct or as may be prescribed, two
competent assessors; and such assessors shall attend and assist accordingly.
(2) Every such assessor shall receive such fees for his attendance, to be paid by
such of the parties as the Court may direct or as may be prescribed.

MV AL QUAMAR case and applicability of CPC to admiralty proceedings:

MV AL QUAMAR v. Tsavliris Salvage (AIR 2000 SC 2826)
Major Premise in AL QUAMAR All provisions of the CPC except those in
Part VII applies to admiralty jurisdiction.
Minor premise in AL QUAMAR - Section 44A (Execution of decrees passed
by Courts in reciprocating territory.) does not occur in Part 7 of the
Code.
Conclusion in AL QUAMAR Section 44 a of the Code applies to admiralty
jurisdiction.
Reena Pandhi v. Jagdhir (AIR1982 Ori.57)

Bar on exercise of admiralty jurisdiction

1. Bar in cases of foreign state owned ships (sovereign immunity)
2. Bar in cases of proceedings against Government.
3. Bar in cases of arbitration.
 4. Bar in collision cases no in personam action if similar proceedings in
the same cause of action pending in another jurisdiction.

MAREVA INJUNCTIONS
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2
Lloyd's Rep 509
Is an ad interim injunction issued in actions in personam
Purpose of to prevent judgments in favour of the plaintiff being
rendered infructuous by removal of assets of the defendant from the
jurisdiction or by some other dealing with such asset.
The Order is not to seize the property (so is diff from ABJ) but is only to
restrain the owner from dealing with the asset or assets in certain ways.
Referred to in Al Quamar Case by the SC.

Ship Registration
MUSCAT DHOWS CASE
Whereas generally speaking it belongs to every Sovereign to decide to
whom he will accord the right to fly his flag and to prescribe the rules
governing such grants, and whereas therefore the granting of the French flag to
subjects of His Highness the Sultan of Muscat in itself constitutes no attack on
the Independence of the Sultan.

There was a divergence of views as to the significance of the above-

mentioned declaration of 1862 with regard to the concession of the
French flag, and as to the nature of the privileges and immunities
claimed by the subjects of the Sultan. Being unable to reach agreement,
the two Governments decided to submit the questions to arbitration.

In March 1862, the Governments of France and Great Britain signed a

declaration in which they reciprocally agreed to respect the
independence of the Sultan of Muscat.
 A dispute arose between the two countries when France issued papers to
certain subjects of the Sultan authorising them to fly the French flag,
and who then claimed extra-territorial rights in the territorial waters of
the Sultan.
As leaders of an international movement to curtail the slave trade, the
British protested the grant of French flags to Arab dhows (traditional
sailing vessels) whose immunity from search made them valued by the
slave traders.
Although the court found that Frances right to confer its nationality on
the dhows had in fact been restricted by a treaty of 1892, it held that
prior to that date: France was entitled to authorise vessels belonging
to subjects of His Highness the Sultan of Muscat to fly the French flag,
only bound by her own legislation and administrative rules.

Lauritzen v. Larsen

The key issue in this case is whether statutes of the United States should
be applied to this claim of maritime tort.
Larsen, a Danish seaman, while temporarily in New York joined the crew
of the Randa, a ship of Danish flag and registry, owned by petitioner, a
Danish citizen.
Larsen signed ship's articles, written in Danish, providing that the rights
of crew members would be governed by Danish law and by the
employer's contract with the Danish Seamen's Union, of which Larsen
was a member.
He was negligently injured aboard the Randa in the course of
employment, while in Havana harbor.

ISSUE
Should the Danish law apply or should US law apply?
HOLDING
Danish Law should apply.
REASONING
Law of the Flag- Each state under international law may determine for
itself the conditions on which it will grant its nationality to a merchant ship,
thereby accepting responsibility for it and acquiring authority over it.
-Nationality is evidenced to the world by the ships papers and its flag.

Law of the flag supersedes the territorial principle (even for criminal
jurisdiction of personnel of a merchant ship), because it is deemed to be
a part of the territory of that sovereignty (whose flag it flies), and not to
lose that character when in navigable waters within the territorial limits
of another sovereignty.
-All matters of discipline and all things done on board which affected
only the vessel or those belonging to it, and do not involve the peace or
dignity of the country or the ports tranquility, should be left by the
local government to be dealt with by the authorities of the nation to
which the vessel belongs as the laws of that nation or the interests of its
commerce requires.

United Nations Convention on Conditions for Registration of Ships

(Geneva, 7 February 1986)
THE STATES PARTIES TO THIS CONVENTION,
RECOGNIZING the need to promote the orderly expansion of world
shipping as a whole,
RECALLING General Assembly resolution 35/56 of 5 December 1980, the
annex to which contains the International Development Strategy for the
Third United Nations Development Decade, which called, inter alia , in
paragraph 128, for an increase in the participation by developing
countries in world transport of international trade,
 RECALLING also that according to the 1958 Geneva Convention on the
High Seas and the 1982 United Nations Convention on the Law of the Sea
there must exist a genuine link between a ship and a flag State and
conscious of the duties of the flag State to exercise effectively its
jurisdiction and control over ships flying its flag in accordance with the
principle of the genuine link,
BELIEVING that to this end a flag State should have a competent and
adequate national maritime administration,
BELIEVING also that in order to exercise its control function effectively a
flag State should ensure that those who are responsible for the
management and operation of a ship on its register are readily
identifiable and accountable,
BELIEVING further that measures to make persons responsible for ships
more readily identifiable and accountable could assist in the task of
combating maritime fraud,
REAFFIRMING, without prejudice to this Convention, that each State
shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory and for the right to fly its flag,
PROMPTED by the desire among sovereign States to resolve in a spirit of
mutual understanding and co-operation all issues relating to the
conditions for the grant of nationality to, and for the registration of,
ships,
CONSIDERING that nothing in this Convention shall be deemed to
prejudice any provisions in the national laws and regulations of the
Contracting Parties to this Convention, which exceed the provisions
contained herein,
RECOGNIZING the competences of the specialized agencies and other
institutions of the United Nations system as contained in their respective
constitutional instruments, taking into account arrangements which may
have been concluded between the United Nations and the agencies, and
between individual agencies and institutions in specific fields,
 HAVE AGREED as follows:
Article 1
Objectives
For the purpose of ensuring or, as the case may be, strengthening the
genuine link between a State and ships flying its flag, and in order to
exercise effectively its jurisdiction and control over such ships with
regard to identification and accountability of shipowners and operators
as well as with regard to administrative, technical, economic and social
matters, a flag State shall apply the provisions contained in this
Convention.

Article 2
Definitions
For the purposes of this Convention:
"Ship" means any self-propelled sea-going vessel used in international
seaborne trade for the transport of goods, passengers, or both with the
exception of vessels of less than 500 gross registered tons;
"Flag State" means a State whose flag a ship flies and is entitled to fly;
"Owner" or "shipowner" means, unless clearly indicated otherwise, any
natural or juridical person recorded in the register of ships of the State
of registration as an owner of a ship;
"Operator" means the owner or bareboat charterer, or any other natural
or juridical person to whom the responsibilities of the owner or bareboat
charterer have been formally assigned;
"State of registration" means the State in whose register of ships a ship
has been entered;
"Register of ships" means the official register or registers in which
particulars referred to in article 11 of this Convention are recorded;
"National maritime administration" means any State authority or agency
which is established by the State of registration in accordance with its
legislation and which, pursuant to that legislation, is responsible, inter
 alia , for the implementation of international agreements concerning
maritime transport and for the application of rules and standards
concerning ships under its jurisdiction and control;
"Bareboat charter" means a contract for the lease of a ship, for a
stipulated period of time, by virtue of which the lessee has complete
possession and control of the ship, including the right to appoint the
master and crew of the ship, for the duration of the lease;
"Labour-supplying country" means a country which provides seafarers for
service on a ship flying the flag of another country.

Article 4
General provisions
1. Every State, whether coastal or land-locked, has the right to sail ships
flying its flag on the high seas.
2. Ships have the nationality of the State whose flag they are entitled to
fly.
3. Ships shall sail under the flag of one State only.
4. No ships shall be entered in the registers of ships of two or more
States at a time, subject to the provisions of paragraphs 4 and 5 of
article 11 and to article 12.
5. A ship may not change its flag during a voyage or while in a port of
call, save in the case of a real transfer of ownership or change of
registry.

Article 5
National Maritime Administration
1. The flag State shall have a competent and adequate national
maritime administration, which shall be subject to its jurisdiction and
control.
 2. The flag State shall implement applicable international rules and
standards concerning, in particular, the safety of ships and persons on
board and the prevention of pollution of the marine environment.
3. The maritime administration of the flag State shall ensure:
(a) That ships flying the flag of such State comply with its laws and
regulations concerning registration of ships and with applicable
international rules and standards concerning, in particular, the safety of
ships and persons on board and the prevention of pollution of the marine
environment;
(b) That ships flying the flag of such State are periodically surveyed by
its authorized surveyors in order to ensure compliance with applicable
international rules and standards;
(c) That ships flying the flag of such State carry on board documents, in
particular those evidencing the right to fly its flag and other valid
relevant documents, including those required by international
conventions to which the State of registration is a Party;
(d) That the owners of ships flying the flag of such State comply with the
principles of registration of ships in accordance with the laws and
regulations of such State and the provisions of this Convention.

4. The State of registration shall require all the appropriate information

necessary for full identification and accountability concerning ships flying
its flag.
Article 6
Identification and accountability
1. The State of registration shall enter in its register of ships, inter alia ,
information concerning the ship and its owner or owners. Information
concerning the operator, when the operator is not the owner, should be
included in the register of ships or in the official record of operators to
be maintained in the office of the Registrar or be readily accessible to
him, in accordance with the laws and regulations of the State of
 registration. The State of registration shall issue documentation as
evidence of the registration of the ship.
2. The State of registration shall take such measures as are necessary to
ensure that the owner or owners, the operator or operators, or any
other person or persons who can be held accountable for the
management and operation of ships flying its flag can be easily
identified by persons having a legitimate interest in obtaining such
information.

3. Registers of ships should be available to those with a legitimate

interest in obtaining information contained therein, in accordance with
the laws and regulations of the flag State.
4. A State should ensure that ships flying its flag carry documentation
including information about the identity of the owner or owners, the
operator or operators or the person or persons accountable for the
operation of such ships, and make available such information to port
State authorities.
5. Log-books should be kept on all ships and retained for a reasonable
period after the date of the last entry, notwithstanding any change in a
ship's name, and should be available for inspection and copying by
persons having a legitimate interest in obtaining such information, in
accordance with the laws and regulations of the flag State. In the event
of a ship being sold and its registration being changed to another State,
log-books relating to the period before such sale should be retained and
should be available for inspection and copying by persons having a
legitimate interest in obtaining such information, in accordance with the
laws and regulations of the former flag State.

6. A State shall take necessary measures to ensure that ships it enters in

its register of ships have owners or operators who are adequately
identifiable for the purpose of ensuring their full accountability.
 7. A State should ensure that direct contact between owners of ships
flying its flag and its government authorities is not restricted.
Article 7
Participation by nationals in the ownership and/or manning of ships
With respect to the provisions concerning manning and ownership of
ships as contained in paragraphs 1 and 2 of article 8 and paragraphs 1 to
3 of article 9, respectively, and without prejudice to the application of
any other provisions of this Convention, a State of registration has to
comply either with the provisions of paragraphs 1 and 2 of article 8 or
with the provisions of paragraphs 1 to 3 of article 9, but may comply
with both.
Article 8
Ownership of ships
1. Subject to the provisions of article 7, the flag State shall provide in its
laws and regulations for the ownership of ships flying its flag.
2. Subject to the provisions of article 7, in such laws and regulations the
flag State shall include appropriate provisions for participation by that
State or its nationals as owners of ships flying its flag or in the ownership
of such ships and for the level of such participation. These laws and
regulations should be sufficient to permit the flag State to exercise
effectively its jurisdiction and control over ships flying its flag.

Article 9
Manning of ships
1. Subject to the provisions of article 7, a State of registration, when
implementing this Convention, shall observe the principle that a
satisfactory part of the complement consisting of officers and crew of
ships flying its flag be nationals or persons domiciled or lawfully in
permanent residence in that State.
 2. Subject to the provisions of article 7 and in pursuance of the goal set
out in paragraph 1 of this article, and in taking necessary measures to
this end, the State of registration shall have regard to the following:

(a) the availability of qualified seafarers within the State of registration;

(b) multilateral or bilateral agreements or other types of arrangements
valid and enforceable pursuant to the legislation of the State of
registration;
(c) the sound and economically viable operation of its ships.

3. The State of registration should implement the provision of paragraph

1 of this article on a ship, company or fleet basis.
4. The State of registration, in accordance with its laws and regulations,
may allow persons of other nationalities to serve on board ships flying its
flag in accordance with the relevant provisions of this Convention.
5. In pursuance of the goal set out in paragraph 1 of this article, the
State of registration should, in co-operation with shipowners, promote
the education and training of its nationals or persons domiciled or
lawfully in permanent residence within its territory.

6. The State of registration shall ensure:

(a) that the manning of ships flying its flag is of such a level and
competence as to ensure compliance with applicable international rules
and standards, in particular those regarding safety at sea;
(b) that the terms and conditions of employment on board ships flying its
flag are in conformity with applicable international rules and standards;
(c) that adequate legal procedures exist for the settlement of civil
disputes between seafarers employed on ships flying its flag and their
employers;
 (d) that nationals and foreign seafarers have equal access to appropriate
legal processes to secure their contractual rights in their relations with
their employers.

Article 10
Role of flag States in respect of the management of shipowning
companies and ships
1. The State of registration, before entering a ship in its register of
ships, shall ensure that the shipowning company or a subsidiary
shipowning company is established and/or has its principal place of
business within its territory in accordance with its laws and regulations.

2. Where the shipowning company or a subsidiary shipowning company or

the principal place of business of the shipowning company is not
established in the flag State, the latter shall ensure, before entering a
ship in its register of ships, that there is a representative or
management person who shall be a national of the flag State, or be
domiciled therein. Such a representative or management person may be
a natural or juridical person who is duly established or incorporated in
the flag State, as the case may be, in accordance with its laws and
regulations, and duly empowered to act on the shipowner's behalf and
account. In particular, this representative or management person should
be available for any legal process and to meet the shipowner's
responsibilities in accordance with the laws and regulations of the State
of registration.

3. The State of registration should ensure that the person or persons

accountable for the management and operation of a ship flying its flag
are in a position to meet the financial obligations that may arise from
the operation of such a ship to cover risks which are normally insured in
international maritime transportation in respect of damage to third
 parties. To this end the State of registration should ensure that ships
flying its flag are in a position to provide at all times documents
evidencing that an adequate guarantee, such as appropriate insurance or
any other equivalent means, has been arranged. Furthermore, the State
of registration should ensure that an appropriate mechanism, such as a
maritime lien, mutual fund, wage insurance, social security scheme, or
any governmental guarantee provided by an appropriate agency of the
State of the accountable person, whether that person is an owner or
operator, exists to cover wages and related monies owed to seafarers
employed on ships flying its flag in the event of default of payment by
their employers. The State of registration may also provide for any other
appropriate mechanism to that effect in its laws and regulations.

Article 11
Register of ships
1. A State of registration shall establish a register of ships flying its flag,
which register shall be maintained in a manner determined by that State
and in conformity with the relevant provisions of this Convention. Ships
entitled by the laws and regulations of a State to fly its flag shall be
entered in this register in the name of the owner or owners or, where
national laws and regulations so provide, the bareboat charterer.

2. Such register shall, inter alia , record the following:

(a) the name of the ship and the previous name and registry if any;
(b) the place or port of registration or home port and the official number
or mark of identification of the ship;
(c) the international call sign of the ship, if assigned;
(d) the name of the builders, place of build and year of building of the
ship;
(e) the description of the main technical characteristics of the ship;
 (f) the name, address and, as appropriate, the nationality of the owner
or of each of the owners;
and, unless recorded in another public document readily accessible to
the Registrar in the flag State:
(g) the date of deletion or suspension of the previous registration of the
ship;
(h) the name, address and, as appropriate, the nationality of the
bareboat charterer, where national laws and regulations provide for the
registration of ships bareboat chartered-in;
(i) the particulars of any mortgages or other similar charges upon the
ship as stipulated by national laws and regulations.

3. Furthermore, such register should also record:

(a) if there is more than one owner, the proportion of the ship owned by
each;
(b) the name, address and, as appropriate, the nationality of the
operator, when the operator is not the owner or the bareboat charterer.
4. Before entering a ship in its register of ships a State should assure
itself that the previous registration, if any, is deleted.
5. In the case of a ship bareboat chartered-in a State should assure itself
that right to fly the flag of the former flag State is suspended. Such
registration shall be effected on production of evidence, indicating
suspension of previous registration as regards the nationality of the ship
under the former flag State and indicating particulars of any registered
encumbrances.
BARE BOAT CHARTER REGISTRATION
There has been wide spread use of a structure whereby a vessel
registered in one state is permitted to fly the flag of the second state
for a determinate period.
The situation generally arises as a result of a bareboat charterparty
whereby a vessel registered in state A is chartered for a fixed period to
 nationals or corporations of state B who, during the charter period,
operate the vessel under the flag of the latter state.

The essential characteristic of bare boat charter party is that it is a

contract which entirely divests the operation and maintenance of the
vessel into the charge of the charterer.
Statutory definition of bare boat charter party It is a lease or hire of the
ship for a stipulated period of time on terms which give the charterer
the whole possession and control of the ship, involving the right to
appoint the Master and crew.
The Judicial definition of bare boat charter party is that the legal
owner gives the charterer sufficient of the rights of possession and
control which enable the transaction to be regarded as a letting- a lease
or demise, in real property terms The Giuseppe (1998)

During the period of the bare boat charter, the primary registration in
State A is cancelled or suspended at least for certain purposes- but
becomes fully effective once again upon termination of the charter
party.

Article 12
Bareboat charter
1. Subject to the provisions of article 11 and in accordance with its laws
and regulations a State may grant registration and the right to fly its flag
to a ship bareboat chartered-in by a charterer in that State, for the
period of that charter.
2. When shipowners or charterers in States Parties to this Convention
enter into such bareboat charter activities, the conditions of registration
contained in this Convention should be fully complied with.
 3. To achieve the goal of compliance and for the purpose of applying the
requirements of this Convention in the case of a ship so bareboat
chartered-in the charterer will be considered to be the owner. This
Convention, however, does not have the effect of providing for any
ownership rights in the chartered ship other than those stipulated in the
particular bareboat charter contract.
4. A State should ensure that a ship bareboat chartered-in and flying its
flag, pursuant to paragraphs 1 to 3 of this article, will be subject to its
full jurisdiction and control.
5. The State where the bareboat chartered-in ship is registered shall
ensure that the former flag State is notified of the deletion of the
registration of the bareboat chartered ship.

6. All terms and conditions, other than those specified in this article,
relating to the relationship of the parties to a bareboat charter are left
to the contractual disposal of those parties.

Article 13
Joint ventures
1. Contracting Parties to this Convention, in conformity with their
national policies, legislation and the conditions for registration of ships
contained in this Convention, should promote joint ventures between
shipowners of different countries, and should, to this end, adopt
appropriate arrangements, inter alia , by safeguarding the contractual
rights of the parties to joint ventures, to further the establishment of
such joint ventures in order to develop the national shipping industry.
2. Regional and international financial institutions and aid agencies
should be invited to contribute, as appropriate, to the establishment
and/or strengthening of joint ventures in the shipping industry of
developing countries, particularly in the least developed among them.
 Article 14
Measures to protect the interests of labour-supplying countries
1. For the purpose of safeguarding the interests of labour-supplying
countries and of minimizing labour displacement and consequent
economic dislocation, if any, within these countries, particularly
developing countries, as a result of the adoption of this Convention,
urgency should be given to the implementation, inter alia , of the
measures as contained in Resolution 1 annexed to this Convention.
2. In order to create favourable conditions for any contract or
arrangement that may be entered into by shipowners or operators and
the trade unions of seamen or other representative seamen bodies,
bilateral agreements may be concluded between flag States and labour-
supplying countries concerning the employment of seafarers of those
labour-supplying countries.

Article 15
Measures to minimize adverse economic effects
For the purpose of minimizing adverse economic effects that might
occur within developing countries, in the process of adapting and
implementing conditions to meet the requirements established by this
Convention, urgency should be given to the implementation, inter alia ,
of the measures as contained in Resolution 2 annexed to this
Convention.

Annex I
Resolution 1
Measures to protect the interests of labour-supplying countries
The United Nations Conference on Conditions for Registration of Ships,
Having adopted the United Nations Convention on Conditions for
Registration of Ships,
Recommends as follows:-
 1. Labour-supplying countries should regulate the activities of the
agencies within their jurisdiction that supply seafarers for ships flying
the flag of another country in order to ensure that the contractual terms
offered by those agencies will prevent abuses and contribute to the
welfare of seafarers. For the protection of their seafarers, labour-
supplying countries may require, inter alia , suitable security of the type
mentioned in article 10 from the owners or operators of ships employing
such seafarers or from other appropriate bodies;

Annex II
Resolution 2
Measures to minimize adverse economic effects
The United Nations Conference on Conditions for Registration of Ships,
Having adopted the United Nations Convention on Conditions for
Registration of Ships,
Recommends as follows:-
1. The United Nations Conference on Trade and Development, the
United Nations Development Programme and the International Maritime
Organization and other appropriate international bodies should provide,
upon request, technical and financial assistance to those countries which
may be affected by this Convention in order to formulate and implement
modern and effective legislation for the development of their fleet in
accordance with the provisions of this Convention;
2. The International Labour Organisation and other appropriate
international organizations should also provide, upon request, assistance
to those countries for the preparation and implementation of
educational and training programmes for their seafarers as may be
necessary;
Declaration recognising the Right to a Flag of States having no Sea-coast
The Declaration recognising the Right to a Flag of States having no Sea-
coast is a 1921 multilateral treaty which legally recognised that a land
locked states could be a maritime flag state; that is, that a land-locked
state could register ships and sail them on the sea using its own flag.

In the first two decades of the 20th century, there had been uncertainty
as to whether a land-locked state could register maritime ships and
authorise them to sail under its flag: France, the UK, and Prussia had
argued that such a right could not exist because it would place a land-
locked state in the position of being unable to control the behaviour of
ships of bearing its flag because of the state's inability to unreservedly
access ports and the sea. Prior to the war, Switzerland had denied
several requests from merchant ships to fly the Swiss flag.

After the First World War, the creation of several new land-locked
statessuch as Czechoslovakia, Austria, and Hungarycaused the great
powers to reconsider the issue. The Treaty of Versailles had included
provisions by which Germany agreed to allow these land-locked states to
freely transit goods and personnel through German territory to sea ports,
which suggested that such states may also have their own merchant
vessels in such ports. The Declaration was created to reflect the new
consensus.

As of 2013, the Declaration has been ratified by over 50 states and

international law recognises the right of any state to sail ships on the sea
under its own flag. Today, several land-locked states have merchant
vessel fleets, including Austria, Azerbaijan, Bolivia, Ethiopia, Hungary,
Laos, Luxembourg, Mongolia, Moldova, Paraguay, Slovakia, and
Switzerland.
 MERCHANT SHIPPING ACT 1958
PART IV REGISTRATION OF INDIAN SHIPS
Application of Part.
20. This Part applies only to sea-going ships fitted with mechanical
means of propulsion.

Indian ships.
21. Indian ships.
For the purposes of this Act, a ship shall not be deemed to be an Indian
ship unless owned wholly by persons to each of whom 1any of the
following descriptions applies:- (a) a citizen of India; or 1*[(b) a company
or a body established by or under any Central or State Act which has its
principal place of business in India; or (c) a co-operative society which is
registered or deemed to be registered under the Co-operative Societies
Act, 1912 (2 of 1912), or any other law relating to co-operative societies
for the time being in force in any State.

Obligation to register.
22. Obligation to register. (1) Every Indian ship, unless it is a ship which
does not exceed fifteen tons net and is employed solely in navigation on
the coasts of India, shall be registered under this Act.
(2) No ship required by sub-section (1) to be registered shall be
recognised as an Indian ship unless she has been registered under this
Act: Provided that any ship registered at the commencement of this Act
at any port in India under any enactment repealed by this Act, shall be
deemed to have been registered under this Act and shall be recognised
as an Indian ship.
(3) A ship required by this Act to be registered may be detained until the
master of the ship, if so required, produces a certificate of registry in
respect of the ship. 1*[ Explanation.-For the purposes of this section,
"ship" does not include a fishing vessel.] Procedure for registration
Ports of registry
23. Ports of registry. (1) The ports at which registration of ships shall be
made shall be the ports of Bombay, Calcutta and Madras and such other
ports in India as the Central Government may, by notification in the
Official Gazette, declare to be ports of registry under this Act.
(2) The port at which an Indian ship is registered for the time being
under this Act shall be deemed to be her port of registry and the port to
which she belongs.

Registrars of Indian ships.

24. Registrars of Indian ships. At each of the ports of Bombay, Calcutta
and Madras, the principal officer of the Mercantile Marine Department,
and at any other port such authority as the Central Government may, by
notification in the Official Gazette, appoint, shall be the registrar of
Indian ships at that port: 1*[Provided that subject to such order as the
Central Government may issue in this behalf, when the office of
registrar of Indian ships at any port is vacant or the holder of such office
is on leave or is not available, for any reason, at the port to exercise and
discharge the powers, duties and functions of the office, the seniormost
surveyor at that port may act as, and exercise and discharge the powers,
duties and functions of, the registrar of Indian ships at that port.]

Register book.
25. Register book. Every registrar shall keep a book to be called the
register book and entries in that book shall be made in accordance with
the following provisions:- (a) the property in a ship shall be divided into
ten shares; (b) subject to the provisions of this Act with respect to joint
owners or owners by transmission, not more than ten individuals shall be
entitled to be registered at the same time as owners of any one ship;
but this rule shall not affect the beneficial interest of any number of
 persons represented by or claiming under or through any registered
owner or joint owner; (c) a person shall not be entitled to be registered
as owner of a fractional part of a share in a ship; but any number of
persons not exceeding five may be registered as joint owners of a ship or
of any share or shares therein; (d) joint owners shall be considered as
constituting one person and shall not be entitled to dispose in severalty
of any interest in a ship or any share therein in respect of which they are
registered; (e) a company 2*[or a co-operative society] may be
registered as owner by its name.
Application for registry.
26. Application for registry. An application for the registry of an Indian
ship shall be made- (a) in the case of an individual, by the person
requiring to be registered as owner or by his agent; (b) in the case of
more than one individual requiring to be so registered, by some one or
more of the persons so requiring or by his or their agent; and (c) in the
case of a company 3*[or a co-operative society] requiring to be so
registered, by its agent; and the authority of the agent shall be testified
by writing, if appointed by an individual, under the hand of the person
appointing him and, if appointed by a company, 3*[or a co-operative
society] under its common seal.
Survey and measurement of ships before registry.
Survey and measurement of ships before registry. (1) The owner of every
Indian ship in respect of which an application for registry is made shall
cause such ship to be surveyed by a surveyor and the tonnage of the ship
ascertained in the prescribed manner.
(2) The surveyor shall grant a certificate specifying the ship's tonnage
and build and such other particulars descriptive of the identity of the
ship as may be prescribed and the certificate of the surveyor shall be
delivered to the registrar before registry.
Marking of ship.
28. Marking of ship. (1) The owner of an Indian ship who applies for
registry under this Act shall, before registry, cause her to be marked
permanently and conspicuously, in the prescribed manner and to the
satisfaction of the registrar and any ship not so marked may be detained
by the registrar.
(2) Subject to any other provision contained in this Act and to the
provisions of any rules made thereunder, the owner and the master of an
Indian ship shall take all reasonable steps to ensure that the ship
remains marked as required by this section, and the said owner or
master shall not cause or permit any alterations of such marks to be
made except in the event of any of the particulars thereby denoted
being altered in the manner provided in this Act or except to evade
capture by the enemy or by a foreign ship of war in the exercise of some
belligerent right.

Declaration of ownership on registry.

29. Declaration of ownership on registry. A person shall not be registered
as the owner of an Indian ship or of a share therein until he or, in the
case of a company, 1*[or a co-operative society] the person authorised
by this Act to make declarations on its behalf has made and signed a
declaration of ownership in the prescribed form referring to the ship as
described in the certificate of the surveyor and containing the following
particulars:-
(a) a statement whether he is or is not a citizen of India; 2*[or in the
case of a company or a co-operative society, whether the company or
the co-operative society satisfies the requirements specified in clause
(b) or, as the case may be, clause (c) of section 21];
(b) a statement of the time when and the place where the ship was built
or if the ship is built outside India and the time and place of building is
not known, a statement to that effect; and in addition, in the case of a
 ship previously registered outside India, a statement of the name by
which she was so registered;
(c) the name of her master;
(d) the number of shares in the ship in respect of which he or the
company 1*[or the co-operative society], as the case may be, claims to
be registered as owner; and
e) a declaration that the particulars stated are true to the best of his
knowledge and belief. Explanation.--In respect of a ship or share owned
by more than one person, a declaration may be made by such one of
them as may be authorised by them.

Evidence on first registry.

30. Evidence on first registry. On the first registry of an Indian ship, the
following evidence shall be produced in addition to the declaration of
ownership:-- (a) in the case of a ship built in India, a builder's
certificate, that is to say, a certificate signed by the builder of the ship
and containing a true account of the proper denomination and the
tonnage of the ship as estimated by him and the time when and the
place where she was built, and the name of the person, if any, on whose
account the ship was built; and if there has been any sale, the
instrument of sale under which the ship or the share therein has become
vested in the applicant for registry; (b) in the case of a ship built outside
India, the same evidence as in the case of a ship built in India unless the
declarant who makes the declaration of ownership declares that the
time and place of her building are not known to him, or that the
builder's certificate cannot be procured, in which case there shall be
required only the instrument of sale under which the ship or a share
therein has become vested in the applicant for registry.
 Entry of particulars in register book.
31. Entry of particulars in register book. As soon as the requirements of
this Act preliminary to registry have been complied with, the registrar
shall enter in the register book the following particulars in respect of the
ship:-- (a) the name of the ship and the name of the port to which she
belongs; (b) the details contained in the surveyor's certificate; (c) the
particulars respecting her origin stated in the declaration of ownership;
and (d) the name and description of her registered owner or owners,
and, if there are more owners than one, the number of shares owned by
each of them.

Documents to be retained by registrar.

32. Document to be retained by registrar. On the registry of a ship, the
registrar shall retain in his custody the following documents:-- (a) the
surveyor's certificate; (b) the builder's certificate; (c) any instrument of
sale by which the ship was previously sold; (d) all declarations of
ownership.

Power of Central Government to inquire into title of Indian ship to be so

registered.
33. Power of Central Government to inquire into title of Indian
ship to be so registered. (1) Where it appears to the Central Government
that there is any doubt as to the title of any Indian ship to be registered
as an Indian ship, it may direct the registrar of her port of registry to
require evidence to be given to his satisfaction within such time, not
being less than thirty days as the Central Government may fix, that the
ship is entitled to be registered as an Indian ship.
(2) If within such time as may be fixed by the Central Government
under sub-section (1) evidence to the satisfaction of the registrar that
the ship is entitled to be registered as an Indian ship is not given, the
ship shall be liable to forfeiture. Certificate of registry
Grant of certificate of registry.
34. Grant of certificate of registry. On completion of the registry of an
Indian ship, the registrar shall grant a certificate of registry containing
the particulars respecting her as entered in the register book with the
name of her master.
Custody and use of certificate.
35. Custody and use of certificate. (1) The certificate of registry shall be
used only for the lawful navigation of the ship, and shall not be subject
to detention by reason of any title, lien, charge or interest whatever,
had or claimed by any owner, mortgagee or other person to, on or in the
ship.
(2) No person, whether interested in the ship or not, who has in his
possession or under his control the certificate of registry of a ship, shall
refuse or omit without reasonable cause to deliver such certificate on
demand to the person entitled to the custody thereof for the purposes of
the lawful navigation of the ship or to any registrar, customs collector or
other person entitled by law to require such delivery.
(3) Any person refusing or omitting to deliver the certificate as
required by sub-section (2), may, by order, be summoned by 1*["any
Judicial Magistrate of the first class or any Metropolitan Magistrate, as
the case may be,] to appear before him and to be examinedtouching
such refusal; and if the person is proved to have absconded so that the
order of such magistrate cannot be served on him, or if he persists in not
delivering up the certificate, 1*[the said Magistrate] shall certify the
fact, and the same proceedings may then be taken as in the case of a
certificate mislaid, lost or destroyed, or as near thereto as
circumstances permit.
(4) If the master or owner of an Indian ship uses or attempts to use for
her navigation a certificate of registry not legally granted in respect of
 the ship, he shall be guilty of an offence under this sub-section and the
ship shall be liable to forfeiture.

Power to grant new certificate when original certificate is defaced, lost, etc
. 36. Power to grant new certificate when original certificate is
defaced, lost, etc. (1) In the event of the certificate of registry of an
Indian ship being defaced or mutilated, the registrar of her port of
registry may, on the delivery to him of that certificate, grant a new
certificate in lieu of her original certificate.

Endorsement on certificate of change of master.

37. Endorsement on certificate of change of master. Where the master
of an Indian ship is changed, each of the following persons, that is to
say,-- (a) if the change is made in consequence of the removal of the
master by a Marine Board or by a court under this Act, the presiding
officer of the Marine Board or of the court, as the case may be; (b) if the
change occurs from any other cause,-- (i) in India, the registrar or any
other officer authorised by the Central Government in this behalf at the
port where the change occurs; and (ii) outside India, the Indian consular
officer at the port where the change occurs; shall endorse and sign on
the certificate of registry a memorandum of the change; and any
customs collector at any port in India may refuse to permit any person to
do any act there as master of an Indian ship unless his name is inserted
in or endorsed on her certificate of registry as her last appointed
master.

Endorsement on certificate of change of ownership.

38. Endorsement on certificate of change of ownership. (1) Whenever a
change occurs in the registered ownership of an Indian ship, the change
of ownership shall be endorsed on her certificate of registry either by
the registrar of the ship's port of registry or by the registrar of any port
 at which the ship arrives who has been advised of the change by the
registrar of the ship's port of registry.

Provisional certificate for ships becoming Indian ships abroad.

40. Provisional certificate for ships becoming Indian ships
abroad. (1) If at any port outside India a ship becomes entitled to be
registered as an Indian ship, the Indian consular officer there may grant
to her master on his application a provisional certificate containing such
particulars as may be prescribed in relation to the ship and shall forward
a copy of the certificate at the first convenient opportunity to the
Director-General.
(2) Such a provisional certificate shall have the effect of a certificate of
registry until the expiration of six months from its date or until the
arrival of the ship at a port where there is a registrar whichever first
happens, and on either of those events happening shall cease to have
effect.

Temporary pass in lieu of certificate of registry.

41. Temporary pass in lieu of certificate of registry. Where it appears to
the Central Government that by reason of special circumstances it is
desirable that permission should be granted to any Indian ship to pass
without being previously registered from one port to any other port in
India, the Central Government may authorise the registrar of the first-
mentioned port to grant a pass in such form as may be prescribed, and
that pass shall for the time and within the limits therein mentioned have
the same effect as a certificate of registry. 429 Transfers of ships,
shares, etc.

Transfer of ships or shares.

42. Transfer of ships or shares. (1) No person shall transfer or acquire
any Indian ship or any share or interest therein 1*["at any time during
 which the security of India or of any part of the territory thereof is
threatened by war or external aggression and
during which a Proclamation of Emergency issued under clause (1) of
article 352 of the Constitution is in operation] without the previous
approval of the Central Government and any transaction effected in
contravention of this provision shall be void and unenforceable.
(2) The Central Government may, if it considers it necessary or
expedient so to do for the purpose of conserving the tonnage of Indian
shipping, refuse to give its approval to any such transfer or acquisition.
1*[ (2A) No transfer or acquisition of any Indian ship shall be valid unless-
- (a) all wages and other amounts due to seamen in connection with
their employment on that ship have been paid in accordance with the
provisions of this Act; (b) the owner of the ship has given notice of such
transfer or acquisition of the ship to the Director General.]

(3) Subject to the other provisions contained in this section, an Indian

ship or a share therein shall be transferred only by an instrument in
writing.
(4) The instrument shall contain such description of the ship as is
contained in the surveyor's certificate or some other description
sufficient to identify the ship to the satisfaction of the registrar and
shall be in the prescribed form or as near thereto as circumstances
permit and shall be executed by the transferor in the presence of and be
attested by at least two witnesses.

Registry of transfer.
43. Registry of transfer. (1) Every instrument for the transfer of an
Indian ship or of a share therein when duly executed shall be produced
to the registrar of her port of registry, and the registrar shall thereupon
enter in the register book the name of the transferee as owner of the
 ship or share, as the case may be, and shall endorse on the instrument
the fact of that entry having been made with the day and hour thereof.
(2) Every such instrument shall be entered in the register book in the
order of its production to the registrar.

REGISTRATION OF SHIPS & OPEN REGISTRIES

The registration of ships is a time honoured practice.
It began principally as a means of controlling ships entitled to carry
cargoes within the seaborne empires of Europe. In more recent times,
however, it has proved a convenient means of establishing title to the
property in a vessel in other words, who owns it. At the same time,
registration has served to determine which country's law governs the
operation of a ship and the behaviour of those onboard key concepts
which today play an important part in the international law of the sea

Basically, registration confers nationality on a ship and brings it within

the jurisdiction of the law of the flag state.
Further, registration facilitates financial dealings in ships their sale and
purchase and the raising of mortgages and brings back to the owner
responsibility for any liabilities incurred. It does so by evidencing title to
a ship and thus declaring to all the world who owns a particular vessel.

A ship's flag state exercises regulatory control over the vessel and is
required to inspect it regularly, certify the ship's equipment and crew,
and issue safety and pollution prevention documents.
The organization which actually registers the ship is known as its
registry. Registries may be governmental or private agencies.

Factors influencing choice of flag

Economic factors ( eg: tax regime of a country)
Operating costs (eg: freedom to avoid high labour cost)
 Access to capital markets ( eg: preferred ships mortgages, banks may
not be prepared to advance funds to vessels registered in countries with
history of defaults ot where the legal system is slow in enforcement of
lenders secuirty)

Political factors (eg. 1. Ability to trade world wide without restrictions

imposed by the flag state with regard to carrying cargoes to certain
countries against whom embargoes or boycotts have been applied. Like
South Africa, Israel, North Korea, 2. Naval protection offered during Iran-
Iraq conflict and Gulf war- Kuwaiti Tankers were reflagged in US)

Miscellaneous factors ( ability to repair vessels any where in the world

without being tied down to national ship yards, freedom to build vessel
of international standards rather than under the directions of the
national maritime administration, technical expertise afforded by the
flag state in relation to design and construction of newly built vessels)

national registry & open registries

A registry that is open only to ships of its own nation is known as a
traditional or national registry. Registries that are open to foreign-
owned ships are known as open registries, and some of these are
classified as flags of convenience.

Six features common to Flags of Convenience ( UK Report of 1970)the c

1. The country of Registry allows ownership and/or control of its merchant
vessel by non citizens.
2. Access to the registry is easy. A ship may usually be registered at a Consuls
office abroad. Equally important the transfer from the registry at the owners
option is not restricted.
 3. Taxes on the income from the ships are not levied locally or are low.
A registry fee and an annual fee based on tonnage are normally the only
charges made. A guarantee or an acceptable understanding regarding
future freedom from taxation may also be given.
4. The Country of registry is a small power with no national requirement
under any foreseeable circumstances for all the shipping registered bur
receipts from very small charges on a large tonnage may produce a
substantial effect on its national income and balance of payments

5. manning of ships by non nationals is freely permitted.

6. The country of registry has neither the power nor the administrative
machinery effectively to impose any government or international
regulations; nor has the country the wish or the power to control the
companies themselves.

Genuine link
International registers or flags of convenience can also be defined by
reference to the existence or otherwise of a genuine economic link
between the vessel and its country of registration.
The following are relevant while establishing whether a genuine link
exists between a vessel and its country of existence:

1. The merchant fleet contributes to the national economy of the country.

2. The revenues and expenditure of shipping as well as purchase and sales
of vessels are treated in the national balance of payments accounts.
3. The employment of nationals on vessels.
4. The beneficial ownership of the vessel

Features of FOC from a ship owners point of view:

1. The avoidance of tax in the country in which he is established.
 2. Lower crewing cost since the international registry permits an
unrestricted choice of crew and he is not subject to the onerous national
wage scales.
3. Less regulatory control ( but this is diminishing)
4. Anonymity ( the capital of the shipping company can be disguised in
states with few public filing requirements or where bearer shares are
permitted)

Opposition to international registers

1. Safety
2. Labour
3. Economic distortion
4. International security and terrorist risks

Response of traditional maritime nations to open registers- offshore or second

registers
Many traditional maritime states of western Europe realized that the
attempt to abolish flags of convenience altogether is doomed to fail.
offshore or second registers offers many of the advantages of an open
register at the same time retain a link of sorts between beneficial
ownership or management and the national flag.

SOME SECOND REGISTERS

1986- French Government allowed French owned vessels to register in
the Kerguelen Islands ( This concession allowed owners to operate vessel
with only 25% of crew consisting of French nationals).
Norwegian International Ship Register was started in Bergen ( to reduce
high crewing cost for vessels and to avoid negotiating with Norwegian
trade unions.)

Danish International ship register was established in 1988

 Portuguese second register was started in Madeira in 1989.
South Korea, Brazil, US arrangement with Marshall Islands are some
other examples.

Among the top 35 registries, 15 cater almost exclusively for nationals of

their own country. They are Greece, China, the Republic of Korea, India,
Germany, Japan,
Italy, the United States, Malaysia, Turkey, the
Russian Federation, Indonesia, Belgium, the Islamic
Republic of Iran, Taiwan Province of China, and
Thailand. A low participation of foreign-controlled
tonnage may be due to two reasons. First, the countrys
laws may not allow for the use of its national flag if
there is no adequate genuine link between flag and
ownership. Second, although the countrys registry
might in theory be open to foreigners, its tax or
employment regime or other regulations may make the
registry unattractive to foreign ship owners.

Some countries also provide their flag to both their own

nationals and a significant share of foreigners. The
largest such registries are Hong Kong (China) and
Singapore; for both registries, about two thirds of the
registered tonnage are foreign-controlled. In Cyprus,
about nine tenths of registered tonnage is foreign-
controlled. About half of the tonnage that is registered
under the flag of the United Kingdom belongs to foreign