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 TC No 27 of 1987
From the Judgment and Order dated 2641985 of the Andhra Pradesh High Court in OS Appeal No 2 of 1984
Raju Ramachandran and Jagan Mohan Rao for the Appellants
GL Sanghi SK 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 SLPC 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 25111986
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 OSASR 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 121984 when the vessel MV Elisabeth was lying in the Port of Marmagao on 821984 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 13284 to 19284 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 MV 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 8284 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 means of an action in rem
The vessel was arrested when it entered the Port of Vishakhapatnam on 13484 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 1425000 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 SLPC 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 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 GL 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 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 
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 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 vs Scindia Stream Navigation Co Ltd  Mrs Sahida Ismail vs Petko R Salvejkov  Ors AIR 1973 Bombay 18 Jayaswal Shipping Company vs SS Leelavati  AIR 1954 Calcutta 415 Rungta Sons Pvt Ltd  Anr
vs SS Edison Mariner   Anr 1961 62 66 Calcutta Weekly Notes 1083 and Smt
Reena Padhi vs 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
PB Mukharji J of the Calcutta High Court in Jayaswal Shipping Company vs SS 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 vs Asia Mariner  647 SK Mukherjea J of the Calcutta High Court states  The High Court at Calcutta as a Court of Admiralty is therefore a Court of prescribed jurisdiction
Its jurisdiction is prescribed by clause 26 of the Charter of 1774 and by section 22 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
SK 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 vs Scindia Steam Navigation co Ltd  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 
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 
p200 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 vs The Woron  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 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 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  S7
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 Aden c The District Court of Karachi
1030 Vol
I1 para 307 Halsbury s Statutes of England Vol
I p9 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 vs The Waron 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 section 2 sub s 2 of the Colonial Courts of Admiralty 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 s22 repealed and re enacted by the Supreme Court of Judicature Consolidation Act 1925 imp s22 does not apply to Colonial Courts of Admiralty
Consequently the Exchequer Court of Canada which was established by the Admiralty Act RS Can 1906 c141 as a Colonial Court of Admiralty has not under section 22 sub section
1xii of the above 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 RS 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 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 WS Holdswoth vol 1 pp 558 59
 The Gaetano and Maria 1882 7PD at p 143
 The Gas Floot Whitton N2 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 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 1i 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 ie 1111875 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 1i 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 clauses e g and h respectively of section 202 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 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 equitableincluding 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 43 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
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
 See Halsbury op
4th ed
II para 309
See also Supreme Court Act 1981
 See also the editor s general note on O75
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 DC 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 ie against the property as well as remedies in personam ie against the party personally 
Benedict The Law of American Admiralty 6th ed
I p3
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 5th ed
p29 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  ie 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 vs 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
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 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 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 DC 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  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 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 DCJackson 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 resship 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
ER 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 LC Currie vs MKnight 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 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 DC Jackson Enforcement of Maritime Claims 1985 p9
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 CJ of the Bombay High Court in Bardot  Anr
vs The American Ship Or Vessel Augusta  1873x 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 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 vs State of Maharashtra and Anr
  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 vs SP Shantharaj and Others   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 vs SS Leelavati  AIR 1954 Calcutta 415 Kamalakar Mahadev Bhagat vs Scindia Steam Navigation Co Ltd Bombay  Rungta Sons Private Ltd  Anr
vs SS Edison Mariner   Anr 1961 62 66 Calcutta Weekly Notes 1083 National Co Ltd vs Asia Mariner 1967 68 72 Calcutta Weekly notes 635 Mrs Sahida Ismail vs
Petko R Salvejkov  Ors AIR 1973 Bombay 18 and Smt
Reena Padhi vs 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 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
CJ 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 vs State of Gujarat  Ors JT 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 SP Gupta vs 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 vs M  Faddon  Ors  See Nagendra Singh International Maritime Law Conventions British Shipping Laws Vols
I to IV
1049 1812 11 US 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  the Indian Carriage of Goods by Sea Act 1925 the  and general statutes such as the  the Contract Act 1872 the Evidence Act 1872 the Indian Penal Code 1860 the  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  etcetc
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 and the concerning the administration of the port and the jurisdiction over ships in port the 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 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 of goods by sea from any port in India to any other port whether in India or outside India
The 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 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 315 as follows  315
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 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 ie 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 section 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 foreign ship is dealt with by section 444
section 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  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  Currie vs MKnight and The Jade 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 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 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
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 section 202g
 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 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 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 
That Act as stated earlier confers a right to arrest a vessel in respect of any damage caused by a ship
If that expression 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 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 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 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 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 otherwiseb loss of life or personal injury caused by any ship or occurring in connection with the operation of any shipc salvaged agreement relating to the use or hire of any ship whether by charterparty or otherwisee 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 shipp 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 and other enactments concerning shipping
Procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities SP Gupta vs 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  2Arrest 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 vs M Faddon  Ors
US Supreme Court Reports Cranch 5 9 p 114 133  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 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 Vol4 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 section 1061 315 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 SLPC 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 OSASR 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
RM 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 vs CGMenon  Ors   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 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 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 the 19th Century 
  The Bold Buccleugh 1851 7 Moo
PC267
 The hailey LR2 PC 193
 Halsbury s Laws of England IVth Edn Vol
 Maritime Liens by DR 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 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 ie 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   Halsbury s Laws of England IVth Edn
 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 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
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 of England cannot exercise the jurisdiction
Brother TK 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 2621992 we dismiss the appeal arising from SLPC 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 OSASR No 39789 of 1988
We make no order as to costs
GN Appeal dismissed


Summary:
The West Bengal Registration Service comprised the post of Sub Registrars and other posts above the level of sub Registrars
By a resolution dated May 22 1952 the post of Sub Registrar was directed to be regarded as gazetted wef
1st April 1952
Thereafter by a Notification dated 17th July 1953 the Registration Service was with effect from the date of its constitution ie 30th January 1953 included in the West Bengal State Service
The respondents alleged that notwithstanding the commitment made by the 1953 Notification that they would be accorded all the privileges admissible to officers belonging to State Service their pay scale was not revised equivalent to the minimum pay scale admissible to State Service Officers
Even when pursuant to the recommendations of the Pay Com 898 mittee the pay scales were revised they were placed on a scale which was lower than the minimum scale payable to State Service Employees
Further though the First State Pay Commission recommended a Scale of Rs 425 825 for Sub Registrars yet the recommendation did not find favour with State Government and their pay scale was fixed at Rs 300 600
Also pursuant to the recommendations of the Second State Pay Commission their pay scale was revised to Rs 425 1050 ie scale No 11 although the minimum scale fixed fog the State Service Officers was Rs 660 1600 ie Scale No 17
Feeling aggrieved by the decision of the State Govt
the respondents filed a writ petition in the High Court of Calcutta under Article 226 of the constitution for a mandamus to award scale No 17 of Rs 660 1600 as admissible to State Service Officers 
During the pendency of the writ petition the Third State Pay Commission submitted its report
This Commission also rejected their claim of pay scale of Rs 660 1600 the minimum scale for State service on the ground that their duties and responsibilities did not justify the higher pay scale
By its judgment dated 28th June 1989 a Division Bench of the High Court allowed the writ petition and awarded revised scale No 17 by holding that the Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution in not awarding scale No 17 to the Sub Registrars
The High Court based its decision on the facts that i the post of Sub Registrar was a gazetted post belonging to the State Service ii the first State Pay Commission recommended a higher pay scale which was turned down by Finance and iii the revised educational qualification for Sub Registrar a law degree was the same as required for Munsiffs
Subsequently the respondents filed an application for interim relief seeking permission to exercise option for the corresponding scale No 17 of Rs 2200 4000 equivalent to the old scale of Rs 660 1600 which was allowed by the High Court by its order dated 16th March 1990
They also filed an application seeking clarification of the Court s order dated March 16 1990 and by its order dated 30th March 1990 the High Court permitted the officers belonging to the posts above the level of Sub Registrars to opt for corresponding scales Nos 18 and 19 899 In appeals to this court against the judgment of the High Court dated 28th June 1989 and orders dates 16th and 19th March 1990 it was contended on behalf of the appellant that i the High Court committed a serious error in revising the pay scale of sub Registrars in exercise of its extraordinary jurisdiction under Article 226 of the Constitution because pay fixation was essentially an executive function ordinarily undertaken by an expert body like a Pay Commission whose recommendations are not justiciable ii there being no scheme as Constituted State Service  the employees have been categorised as Group A  B  C  and D  on the basis of evaluation of their work and the recruitment policy
For examination purposes the State Public Service Commission has placed the Sub Registrars in Group D  whereas those in scale No 17 fall in Group A 
Therefore they are not comparable and cannot be placed in same pay scale
On behalf of the respondents it was contended that since after 1981 the qualification of a degree in law as required in the case of Munsiffs was also added to their eligibility criterion they should be equated with Munsiffs in the matter of pay scale
Allowing the appeals and setting aside the orders of the High Court this Court HELD  1
The High Court committed a serious error in law in holding that the Government s action in not granting the scale No 17 to Sub Registrars was violative of Article 14 of the Constitution
915G 2
Equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions etc
But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction
912E F Parbat Kiran Maithani  Ors
vs Union of India  Anr
   State of UP  Ors
vs JP Chaurasia  Ors   cited
Ordinarily a pay structure is evolved keeping in mind several factors eg i method of recruitment ii level at which recruitment is made iii the hierarchy of service in a given cadre iv minimum educa 900 tiontechnical qualifications required v avenues of promotion vi the nature of duties and responsibilities vii the horizontal and verticle relativities with similar jobs viii public dealings ix satisfaction level x employers  capacity to pay etc
These factors have to be kept in view while evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements avenues for promotion etc
Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well
913C E 4
One of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post meaning thereby that the pay scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post
Merely because the Sub Registrars were conferred gazetted status and the Registration Service was included in State Service did not entitle the Sub Registrars to be placed in the higher scale if their duties and responsibilities did not justify the same
By conferment of gazetted status or placement in State Service no qualitative change was brought about in the job performance of the Sub Registrars and their superiors
914E G 41 The High Court failed to evaluate the difference in the nature of duties and responsibilities of a Munsiff and a Sub Registrar
The duties and responsibilities of a Munsiff and a Judicial Magistrate are far more onerous than those of a Sub Registrar
The Sub Registrar s duties are relatively simple namely to receive examine and register the document whereas the duties of a Judicial Officer at the floor level are to hear cases examine witnesses interpret and construe different laws hear oral arguments and deliver reasoned judgments
He has to keep abreast with a host of laws unlike a Sub Registrar who is expected to study only a couple of laws connected with the registration of documents like the Registration Act the Stamp Act etc
The responsibilities of a Judicial Officer are therefore far greater than those of Sub Registrars
Therefore to compare the Sub Registrars with Judicial Magistrates Munsiffs is to compare unequals
It would therefore be wholly arbitrary to place them in the same pay scale
915D g 5
One of the inputs for pay determination is educational requirement for the post
The higher the educational qualification the better 901 would be the quality of service rendered and the end result would in the ultimate be far more satisfactory
That indeed cannot be disputed
But educational qualification is only one of the many factors which has relevance to pay fixation
The complexity of the job to be performed and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale for the job
Prima facie there appears substance in the grievance of the Sub Registrars that while the minimum educational qualification for direct entry into the post has been periodically raised the level of pay scale for the post has not undergone any change whatsoever
916A C 6
The State Government is directed to re examine the question of the appropriate pay scale for Sub Registrars by a speaking order after hearing the representatives of the respondent association
If the State Government decides on the upward revision of the salary of the Sub Registrars it will simultaneously consider the question of upward revision of the pay scales of higher posts in the department
916E F