Insights into Indian Maritime Law and History
Explore the rich history of maritime law in India from ancient times to the present era with significant events, developments, and legislation highlighted. Learn about key figures, trade routes, and the evolution of the shipping industry in the Indian maritime landscape.
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Presentation Transcript
Sr. Adv. V J Mathew Co-President Indian Maritime Law Association www.vjmathew.com
History of Maritime Law in India Concept of Bill of Lading in India Concept of Charter Party in India Concept of Arbitration and Jurisdiction clause Judicial Interpretation Novel legislation for regulating carriage documents for effective arbitration and jurisdiction thereon Indian Position Conclusion www.vjmathew.com
VEDIC TIMES TO CONTEMPORARY ERA- A BRIEF OUTLOOK www.vjmathew.com
3 Millenium BC Indus valley inhabitants maritime trading in Mesopotamia Augustus period- 120 ships were set on sail from Myos Hormos to India Evidence for Harrapan s bulk shipping and special woods to Sumeria World s first dock at Lothal- 2400 BC Pole stars and constellation markings for smooth navigation www.vjmathew.com
First attempt to organize Navy in India- Megasthenes (350-290 BC) Portugal four vessels- Vasco Da Gama- Cape of Good Hope- 1497- Calicut via Indian Ocean 1598- Dutch Convoy- 600,000 pounds spices and other Indian Products. 17th Century- Baba Makhan-trade in sea route to Gulf and Meditteranian region. www.vjmathew.com
Contemporary era- 1947- 33 ships and 538 officers to secure coastline (x>4660 miles +1280 islands) 6th April 1948 Industrial policy of mixed economy 24th March 1950- Eastern Shipping Corporation- First shipping Corp. of India. Second 5 Year Plan to build a fleet of tankers to meet wet cargo requirements www.vjmathew.com
1968- Shipping Corp. of India 1995-96- 24% of trade by Indian ships Development of Containerization and multi modal transport Uruguay round discussion on maritime trade and development of shipping industry Merchant Shipping Act 1958 + Admiralty Courts Act 1861 www.vjmathew.com
1991- Liberalization policy- WTO- Transport services COGSA 1925- gives Hague Rules force of law of law in India Admiralty Bill 2005 and 2012- jurisdiction of High Courts www.vjmathew.com
BILL OF LADING AND CHARTER PARTY - NUTSHELL ANALYSIS www.vjmathew.com
Written document signed by the ship owner acknowledgement of receipt of goods- condition and undertaking to deliver at destination E&B Steamship Co v. Bhagojee Sommul [AIR 1961 Mad 442]- Bill as document of title and pass by mere assignment and constructive delivery www.vjmathew.com
Amoco Oil Co v. Parpada Shipping Co Ltd- Burden of proof with regard to short delivery is on the claimant Bill of Lading as Negotiable Instrument Home Insurance Co v. Ramanath & Co.[AIR 1955 Mad 602]- Bill as evidence in putting goods on board and delivery at destination Great India Trading Co v. Angus Co Ltd [AIR 1983Cal 408]- Bill of lading as Prima facie evidence www.vjmathew.com
Document of contract wherein the ship is booked for exclusive use or voyage or for certain time. Union of India v. Gosalia Shipping Pvt Ltd Categorized CP as time charter party, Voyage Charter Party, Berth/Port Charter Party & Time Charter Party General clauses under bill and charter party issued in India www.vjmathew.com
SHORT DELIVERY MARITIME LIEN DEMURRAGE ALL THAT CIRCUMSTANCES UPHELD BY THE COURT AS A MARITIME DISPUTE FACTORS RECOGNISED BY CONVENTIONS SIGNED OR RATIFIED BY INDIA www.vjmathew.com
MUNICIPAL JUDICIAL PROCEEDING ARBITRATION ALTERNATE DISPUTE RESOLUTION ORDINARY PROCESS OF LAW PROBABILITY OF CONFLICT OF LAW AND LAND OF PROCEEDING IS QUITE HIGH MORE FLEXIBLE DUE TO ELEMENT OF CONSENSUS B/W CONTRACTING PARTIES TIME CONSUMING AS PER NATURE OF INDIAN JUDICIAL PROCESSING SYSTEM SPEEDY RESOLUTION OF DISPUTE AND DEVELOPMENT FRIENDLY www.vjmathew.com
ARBITRATION v/s. JUDICIAL PROCEEDING www.vjmathew.com
JUDICIAL INTERPRETATION www.vjmathew.com
Arbitration clause in Bill of Lading/ Charter Party Agro Company of Canada Ltd. v. Richmond Shipping Ltd [ 1973 I Lloyd s Rep. 392]- Centrocon arbitration clause was incorporated- recognised by India. Tradax Export S A v. Italcarbo Societa di Navigazione Court has to determine the effect of incorporation of Centrocon clause into a time charter on NYPE form www.vjmathew.com
Khardah Co Ltd v. Raymon & Co. Pvt Ltd [AIR 1962 SC 1810]- When the contract itself is illegal and void then the arbitrators so appointed are incompetent to decide and the court with competent jurisdiction shall decide. V. O. Tractoroexport Moscow v. Tarapore Co & Anr [1969 SCC (3) 562]- Suit instituted in violation of arbitration clause in the contract is not maintainable and injunction cannot be made out www.vjmathew.com
FCI v. Thakur Shipping Co & Anr.[AIR 1975 SC 469]- Stay of suit under s.34 of the 1996 not be invoked wherein there is a total grievance of appellant in the advent of invocation of the same. British India Steam Navigation v. Shanmughavilas Cashew Industries & Anr.[1990 SCC (3) 481]- Indian carriage of goods are applicable only if the port of loading is in India and therefore interpretation of arbitration clauses under the said Act cannot be applied. www.vjmathew.com
Owners & Parties Interested in MV Baltic Confidence v. STCI[2001 (45) ALR 178]- The scope as to determination of a dispute within the purview of the arbitration clause shall be made either by the competent court or by the arbitrators Shakti Bhog Foods v. Kola Shipping Ltd[ AIR 2009 SC 12]- Court refers to arbitration except when agreement is null and void. www.vjmathew.com
A DETAILED ANALYSIS www.vjmathew.com
Invocation of arbitral reference in multiple and multi party agreements intrinsically interlinked causes of action, where performance of ancillary agreement is substantially dependent upon effective execution of effective agreement www.vjmathew.com
ISSUES What is the scope of s.45 of the Arbitration Act 1996? Whether in a case where multiple agreements are signed between different parties and where some contain an arbitration clause and others don t and further and the parties are not identically common in proceedings before the court and the arbitration agreement a reference of dispute as a whole or in part can be made to the arbitral tribunal more particularly where the parties to an action are claiming under or through a party to arbitration agreement. www.vjmathew.com
Whether bifurcation or splitting of parties or causes of action would be permissible in the absence of any specific provision for the same in the 1996 Act www.vjmathew.com
RATIO DECIDENDI When the court satisfies the agreement is enforceable and is not null and void then it is obligatory upon the court to make reference to arbitration www.vjmathew.com
EARMARKED PORTION OF JUDGEMENT Discretion of the court has to be exercised in the exceptional, limiting, befitting and cases of necessity and very cautiously. Prayer for arbitration can be made by signatories and non signatories if the pre requisites under Ss.44 and 45 of the 1996 Act is complied. www.vjmathew.com
EARMARKED PORTION OF JUDGEMENT (Conti..) S.45 override the provisions of CPC The term person claiming through or under shall be construed liberally so as to settle disputes other that by judicial proceedings. www.vjmathew.com
Immediate independence period arbitration was not allowed as the norms were too stringent to undergo ordinary judicial process for minor as well as major issues. Alternate dispute resolution was not entertained. Globalization Era- Market liberalized but the practicalities of same was done in a slow pace considering the pop corn terror during colonial rule. www.vjmathew.com
S.89 of the Arbitration Act upholding Alternate Dispute Mechanism includes Arbitration as a mechanism Arbitration Act 1940 took over by Arbitration Act 1996 2002- Arbitration as a major key and weapon to settle international disputes 2008- Courts jurisdiction to conduct ordinary judicial process only when the agreement is void 2012- Obligatory on courts to direct for Arbitration www.vjmathew.com
MY VIEW www.vjmathew.com
Considering the circumstances present in the developing country India, the stand taken by its legislature and Judiciary is in the right way. Widening interpretation of present provisions ingrained in the Municipal Acts- already made Need of novel legislation requires only after successful completion of this transition period and channeling the next step to develop itself www.vjmathew.com
