Case: Captain Subash Kumar Vs. Principal Officer, Mercantile Marinedepartment, Madras

2. The appellant Captain Subash Kumar was Master of the Merchant ship M. V. Eamaco owned by Eamaco Shipping Co. (P) Ltd. Singapore, hereinafter called the the ship. On August 12, 1986 the ship went into distress due to the vessels Hold Nos. 2 and 3 taking in water, the pumping operations being insufficient and though initially the appellant sent radio message for help he failed to launch the life boats and life crafts and to abandon the ship to enable M. V. Shoun World to pick them up and due to the failure of motor life boats and life crafts, when the ship sank, only 11 out of 28 persons were rescued resulting in loss of life to the remaining persons. At about 18.25 hrs. that day Madras Radio, which was the communication centre between the land and seafaring ships, informed the office of the Principal Officer, Mercantile Marine Department, Madras, District Madras, hereinafter called as Principal Officer that an urgent message had been received by the said radio from the appellant and from that communication it was clear that the ship under the command of the appellant was posted at position 11 degrees 08 minutes North, 83 degrees 41 minutes East on 12th at 11.30 Greenwich Mean Time. The said message further indicated that the vessels Hold Nos. 2 and 3 were taking in water and the pumping out operation was not sufficient and it called the assistance from all ships in the vicinity. At 20.28 hrs. the Madras Radio again contacted the Principal Officer and said that the radio had received SOS message (distress message) and he took necessary steps3. The Principal Officer filed a complaint in court of 14th Metropolitan Magistrate, Egmore, Madras 8 against the appellant for initiation of an inquiry proceedings under Section 363 of the Merchant Shipping Act, 1958 (Central Act 44 of 1958), hereinafter called the Act, complaining about the negligence of the appellant while he was the Master of the ship as aforesaid; and that at that time he was residing at Laxmi Niwas, 41, Marshal Road, Egmore, Madras 8 and further stating that the shipping casualty had occurred due to sheer negligence and gross incompetence on the part of the appellant in commanding the ship and the crew; and that the very fact that the life boats and life floats were not used and not even lowered so as to make use of that indicated that the appellant had not even thought about that which a Captain of the ship should have done, resulting in loss of the ship, the cargo and valuable lives of the sailors who had at no time doubted about the competency of the Master or revolted against him. The complaint accordingly said that the Magistrates Court by the provisions of Section 363 had got powers to make inquiry into the charges of incompetence or of misconduct of the appellant therein. It also said that the inquiry might be commenced in accordance with the provisions of the Act so as to cancel the certificate of competency of the Master, namely the appellant, which had been granted by the Central Government; and that cancellation might be recommended under the Act after holding the aforesaid inquiry. The complaint also said that the appellant rendered himself liable to be proceeded against under the provisions of Part XII of the Act which envisaged various modes of investigation and inquiry; and under Section 363 the court had powers to make an inquiry into the charges of incompetency or misconduct of the appellant4. On March 25, 1988, the appellant received a notice stating that the inquiry proceedings were instituted against him before the 14th Metropolitan Magistrate under Section 363 of the Act. The appellant thereupon filed Cri. M.P. No. 2717 of 1988 in the High Court under Section 482 of the CrPC stating that the proceedings were by an abuse of process of the court and the court had no jurisdiction to proceed with the complaint against the appellant when there was no negligence on his part. It was also stated that the fact that the appellant was a holder of a Master certificate issued by the Director General of Shipping, Calcutta would not attract the provisions of the Act inasmuch as the ship was a foreign ship and the Master certificate had been issued by a foreign country and the casualty had occurred in the high seas nearly 232 nautical miles away from India and being in open sea the ship was subject to the jurisdiction and also to the protection of the State under whose maritime flag it sailed. The appellant was, it was further stated, to be in command of the ship by virtue of the certificate issued by the Panamanian Government, the flag of the ship was of Panama and, therefore, the provisions of the Act would not at all apply, much less its Section 363. In other words the proceedings were allegedly intended to harass the appellant without jurisdiction and it amounted to an abuse of process of court5. The learned Single Judge who heard the petition rejected the contention that in view of the language of Section 2 of the Act it would not be applicable and that it would not be a shipping casualty as defined in Section 358 of the Act, and held that the Act was applicable in the instant case and the action of the petitioner amounted to sheer negligence and called for investigation and inquiry under the Act. Hence this appeal

Court's reasoning:
10. In the instant case the ship was not registered in India and was not required by this Act to be so registered.The concepts of territorial waters, continental shelf and exclusive economic zone are different concepts and the proclamation of exclusive economic zone to the limit of 200 nautical miles into the sea from the shore baseline would in no way extend the limit of territorial waters which extends to 12 nautical miles measured from the appropriate baseline. The submission that territorial waters extends to the limit of 200 nautical miles by virtue of notification extending exclusive economic zone to 200 nautical miles has, therefore, to be rejected. Admittedly the ship (M. V. Eamaco) at the time of the casualty was at a place beyond the territorial waters of India and even the exclusive economic zone of India. If this be the position, the ship would not be covered by the provisions of Section 2 of the Act and consequently the provisions of the Act would not apply to the instant casualty17. Taking the second question it is obvious that the Act itself having not been applicable Part XII being a part of the Act will also not be applicable. This part deals with investigations and inquiries and contains Sections 357 to 389. Section 357 defines "coasts" to include the coasts of creeks and tidal rivers.From the above provisions it appears that Section 359 envisages the officers referred to in sub-section (2) of Section 358, receiving the information that a shipping casualty has occurred and reporting in writing the information to the Central Government and his proceeding to make a preliminary inquiry into the casualty and sending a report thereof to the Central Government or such other authority as may be appointed by it in that behalf. Under Section 360 the officer, whether he has made a preliminary inquiry or not, may, and, where the Central Government so directs, shall make an application to the court empowered under Section 361 requesting it to make a formal investigation into any shipping casualty and the court shall thereupon make such investigation. Thus the officer himself may or when directed by the Central Government shall make an application to the court requesting it to make a formal investigation into any shipping casualty. Section 361 empowers the court to make a formal investigation under Part XII. A Judicial Magistrate of the First Class specially empowered in this behalf by the Central Government and a Metropolitan Magistrate shall have jurisdiction to make formal investigation into any shipping casualty under Part XII. What has to be noted in this section is that the court on an application of the officer makes a formal investigation into shipping casualties and not a preliminary inquiry which could have been done by the officer referred to in sub-section (2) of Section 358, and under Section 359 send a report to the Central Government. Section 360 also envisages making of application to court by the officer whether he had made preliminary inquiry or not, requesting it to make formal investigation into any shipping casualty. Thus under Section 361 what is being envisaged is a formal investigation into a shipping casualty and not a preliminary inquiry. Section 362 deals with only formal investigation and says that while making such investigation into a shipping casualty the court may inquire into any charge of incompetency or misconduct arising, in the course of the investigation, against any master, mate or engineer, as well as into any charge of a wrongful act or default on his part causing the shipping casualty. Under sub-section (2) a statement of the case has to be furnished to the master, mate or engineer. Section 362 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty. Section 363(1) envisages the Central Government, when it has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, (b) if he holds a certificate under the law of any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship, and the transmitting of the statement of the case to any court having jurisdiction under Section 361 where it may be convenient for the parties and witnesses to attend, and the Central Government may direct that court to make an inquiry into that charge. Under clause (a) the Central Government may exercise the power if the master, mate or engineer holds a certificate under the Act, in any case. Thus under this section the Central Government must have reason to believe that there are grounds for charging any master etc. with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, in case of a master of a foreign ship who holds a certificate under the Act "in any case". It also envisages the transmitting the statement of the case to any court having a jurisdiction under Section 361. The question is what would be the meaning of the words "in any case". Would it mean any case of shipping casualty, or it would mean any case irrespective of shipping casualty. In other words, under the above provisions if the appellant was the master of the ship and the casualty was outside the territorial waters of India and ship involved was of foreign ship would the expression "in any case" cover the instant case ? If the preceding sections of Part XII dealt with only shipping casualty, will it be permissible to interpret the words "in any case" irrespective of shipping casualty and anywhere outside the territorial waters of India and whoever is the owner of the vessel ? Will not the ejusdem generis rule apply ? Again when the Act itself is not applicable to a case, can these words be given a meaning beyond the applicability of the Act ? Verba secundum materiam subjectam intelligi nemo est qui nesciat. There is one who does not know that words are to be understood according to their subject matter. The subject matter of Part XII is investigations and inquiries into shipping casualty. Would "in any case" then mean in any case of shipping casualty ? We have read the other relevant provisions of the Act. Nemo aliquam partem recti intelligere potest, antequam totum interum atque interum parlegerit. No one can properly understand any part of a statue till he has read through the whole again and again. We find the Part VI of the Act deals with certificates of officers, namely, masters, mates andWe enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the answer is in the negative. We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have beenThe High Court found as fact that the appellant had two certificates issued under Section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively. The High Court correctly observed that Section 363 enables the Central Government to transmit a case to the court which has jurisdiction under Section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigations into shipping casualties but the High Court failed to notice that the complainant himself had no power under Section 363. High Court has not considered the extent of applicability of the Act and whether all ingredients required under Section 363 were satisfied in the impugned complaint