LAW RELATING TO MARITIME WRECKS IN INDIA
LAW RELATING TO MARITIME WRECKS IN INDIA.
With the onset of monsoon shipping casualties have increased
along the Indian coast line. At least a dozen ships have capsized
along the west coast of India this year. Most of them have been
registered either in India or in a flag of convenience country.
These accidents have brought to fore many questions regarding
standards for registration of vessels and the urgent need for
stringent enforcement of such standards. It has also brought to
light the inadequacy of the existing legal provisions in India
pertaining to the responsibility and liability for maritime wrecks
and their removal.
The problems from wrecks are three fold. First, and depending on
its location, a wreck may constitute a hazard to navigation,
potentially endangering other vessels and their crews; second,
and of equal concern, depending on the nature of the cargo, is
the potential for a wreck to cause substantial damage to the
marine and coastal environments; and third, in an age where
goods and services are becoming increasingly expensive, is the
issue of the costs involved in the marking and removal of
hazardous wrecks.
Indian law with respect to wreck is laid down in Part XIII of the
Merchant Shipping Act, 1958 and in the the Indian Ports Act,
1908. Provisions relating to Wrecks in the Merchant Shipping Act
have been substantially borrowed from the English statute with
some minor changes so as to suit the local requirements. The
parent legislation as it now stands in UK deals with the subject
more elaborately as could be seen from Part IX of the English
Merchant Shipping Act, 1995.
Though, Sections 10, 11, 12 and 14 of the Indian Ports Act, 1908
would be relevant while discussing Maritime Wrecks, since the
area of applicability of the said sections is limited to the ‘Port’ or
‘Limits of the Port’, the said Act cannot be effectively used to deal
with wrecks beyond the port limits. Recent events have however
shown that the most of the wrecks actually exist or shipping
casualties occur, within the maritime zones of India outside the
limits of the ports, an area wherein the provisions of the Indian
Ports Act are not applicable.
The International community being convinced of the need for a
uniform set of international rules and procedures to ensure
prompt and effective removal of wrecks and payment of
compensation for the costs incurred for the same, under the
auspices of the International Maritime Organization recently
convened and adopted an international convention on wreck
removal in Nairobi, Kenya. The Nairobi International Convention
on the Removal of Wrecks, 2007, (hereinafter referred to as the
‘Convention’) is expected to fill the vacuum in international
maritime law with respect to wrecks and their removal. The
convention is not yet in force and will be open to signature from
November 2007.
With a long and ecologically fragile coast line bordering
international navigation routes and the recent increase in
shipping causalities, it high time that Indian statutes dealing
wrecks is appropriately amended so as to meet the felt
necessities of the time.
This article critically examines the law relating to wrecks as it
stands now in India and compares the same with the recent
international developments in the field.
The Indian Merchant Shipping Act, 1958 defines ‘wreck’ in an
inclusive manner so as to take in both ‘goods’ and ‘vessels’
[Sec.2 (58)]. The definition from its very wording cannot be
construed as exhaustive as to what constitutes a wreck. But it
mandates that for being treated as a wreck, goods or vessels,
are to be found either in the ‘sea’ or in ‘tidal waters’ or on
‘shores’. The term ‘sea’ has not been defined in the Act and
hence will have to be understood as envisaged in the Indian
Maritime Zones Act. Since the Act does not have extraterritorial
application the same will not be applicable to the wrecks in the
high sea along the Indian Coast. So ‘sea’ has to be understood as
the 12 nautical mile territorial sea measured from the base lines.
The term ‘Tidal waters’ has been defined in the Act to mean any
part of the sea and any part of a river within ebb and flow of the
tide at ordinary spring tides and not being a harbour [Sec.2
(49)]. Interestingly, after having specifically laid down that wreck
has to be either in the ‘sea’ or in ‘tidal waters’ or on ‘shores’ Part
XIII of the Act dealing with wreck and salvage brings in the
concept of ‘Coast’ to denote the territorial limits wherein a wreck
can be situated. ‘Coast’ has been defined in an inclusive manner
to include the coasts of creeks and tidal rivers [Sec.391]. Thus
the territorial limits where a wreck can be located as per the Act
are the ‘sea’ or ‘tidal waters’ or on ‘shores’ or in the ‘Coast’. Use
of these different terms some of which overlap to a certain extent
and some which has been deliberately left ambiguous, creates
confusion as to the exact territorial ambit of the provisions.
Under the Convention, the territorial limits within which the state
can take measures for removal of wreck has been specifically
demarcated and termed as the ‘Convention area’ which takes in
the whole of the Exclusive Economic Zone i.e., 200 nautical miles
from base lines. Such a precise adoption of the area of operation
appears to be beneficial and clears off much confusion created by
synonymous and ambiguous terms. At the same time it is
relevant to note that while the Convention only envisages parts
of the sea or the ocean as areas of operation relevant for
handling wrecks, the Act by mentioning ‘shores’ also takes care
of those wrecks or parts of it that floats and are washed off on to
the land along the coast.
The term ‘goods’ has been left nebulous and the Act has not
attempted to qualify or confine it to maritime property. So it has
to be construed in the wide sense as used in the common
parlance. But as to constitute a wreck under the Act, goods have
to be those that had been cast into the sea which then sinks and
remains under water, or which have been cast or fallen into the
sea and remains floating on the surface, which are sunk in the
sea but are attached to a floating object in order that they may
be found again or those which have been thrown away or
abandoned.
The term ‘vessel’, under the Act includes any ship, boat, sailing
vessel or other description of vessel used in navigation [Sec.2
(55)] which has been abandoned without hope or intention of
recovery. Thus abandonment is a prerequisite for a vessel to be
treated as a wreck. This leaves a question whether a vessel that
is about, or may reasonably be expected, to sink or to strand,
where effective measures to assist the vessel in danger are not
already being taken can be termed as a wreck under the Indian
law. The insistence on total abandonment without even a hope or
intention of recovery clearly shows that a stranded vessel or a
vessel that is reasonably expected to sink cannot be termed as a
Wreck under the Act. This is a conundrum which has serious
practical implications as was recently witnessed in the incident
leading to the capsizing of the vessel MV Maria along the
southern coast of India near port of Cochin close to the
international shipping channel.
The Act after defining Wreck and related concepts proceeds to
elaborate on norms governing the handling of Wreck in Part XIII
which also deals with salvage. This coupling of wreck with
salvage is prima facie understandable in so far as in maritime law
wreck and salvage have always been dealt with and treated as
interrelated concepts and as hence fit to be considered together.
But the problems underlying such clubbing come to the fore on a
deeper appreciation of the provisions of the Act.
Recognizing the fact that wreck is a property of importance which
requires to be dealt with systematically and which by its very
nature tend to remain res nullis in view of the liabilities that
would arise out of the same, the Act provides that the Central
Government may appoint a receiver to receive and take
possession of the wreck and to perform such duties as envisaged
in the Act [Sec.391]. This provision ensures that wreck does not
remain unaccounted for or as res nullis and the mischief arising
there from is handled by an authority specifically constituted for
the said purpose. Apparently for administrative convenience, the
receiver thus appointed has been empowered to delegate his
powers to any person if so required [Sec.391(2)].
From the said provision it is apparent that the receiver of
wreck is an authority appointed for different areas as
specified in the notification and is a regular official and is
not appointed at the time of happening of a maritime
causality or upon the formation of a Wreck. The said
functions are performed by a concerned officer of the
Mercantile Marine Department from the local MMD station.
The Act taking cue from the English legislation mandates that the
Receiver of wreck within whose limits the place is situated shall
upon request from the Master of the vessel stranded or in
distress and upon being acquainted with the circumstances
forthwith proceed to the place and upon arrival shall take
command of the situation and take steps for the preservation of
the vessel, its cargo and equipment and the lives of the persons
on board. For the said purpose he has the right to take command
of all persons present, to assign such duties and such directions
to each person as he thinks fit [Sec.392].
It is relevant to note that a vessel in distress and which has been
taken command of by a receiver is not a ‘Wreck’ in the sense it
has been defined in the Act. Under the Act for a vessel to be a
wreck it has to be abandoned without hope or intention of
recovery. It would be erroneous to say that when a request is
made by a Master of the vessel in distress to a receiver to
intervene and help, the same has to be treated as an
abandonment of the vessel without hope or intention of recovery
and hence a wreck. So there has to be a positive act of
abandonment so as to constitute a wreck and to empower the
receiver to meddle with the same, without which, the service
rendered by the receiver to a vessel in distress at the most could
only be treated as a salvage act, which may or may not entitle
him to claim salvage contribution.
The statute also confers on the receiver certain powers incidental
to and necessary for effective performance of his duties like
power to pass over adjoining land for the purpose of rendering
assistance [Sec.393], power to suppress plunder and disorder by
force [Sec.394], power to investigate into relevant aspects
leading to the wreck like the occasion for wrecking [Sec.396],
power to make immediate sale of wreck [Sec.398], power to
move the Magistrate for issuance of search warrant where wreck
is concealed [Sec.401] etc. elaborations whereof may not be
relevant for the purpose of the this article.
When a foreign vessel is rendered a wreck along the Indian coast
threatening the navigation as well as the coastal environment,
the situation throws up numerous legal issues which the law as it
stands now is ill equipped to deal with. As seen hereinabove,
under the Act so as to constitute a wreck there has to be valid
abandonment. A decision to abandon a vessel by its Master as
the representative of the owner will be a well thought out
decision and after once having abandoned, the owner would be
reluctant to claim the wreck in so far as expenses for removal will
overweigh the value of the received wreck. So the vessel in many
cases will remain unclaimed wreck and if it is a threat the task of
removal might fall on the shoulders of the costal state. Hence the
need for a legal apparatus for compulsory removal of wreck.
The Act mandates that any person finding and taking possession
of a wreck shall as soon as practicable, if he is the owner of the
wreck give notice thereof to the receiver stating the
distinguishing marks and if he is not the owner deliver the same
to the receiver [Sec.395]. The receiver in turn after taking
possession of the wreck should publish a notification containing
the description of the wreck and time and place where it was
found [Sec.397]. Though certain penalties are laid down in the
Act for violating the notice requirement, fine of a paltry sum of
1000 rupees is not adequate to meet the consequences arising
from a wreck or even twice the value of the wreck for that matter
might prove inadequate. [Sec.436 (117 to 120(b)]
With reference to the claims of the owner of the wreck, the
statute mandates that if the owner is able to establish his claim
over the wreck to the satisfaction of the receiver within one year
of the wreck coming into the possession of the receiver, he shall
be entitled to have the wreck or the proceeds thereof delivered
to him upon his paying the salvage and other charges [Sec.399
(1)]. Obviously the receiver’s satisfaction has to be objectively
arrived at after due process of law and complying with the
principles of natural justice.
In the case of a foreign vessel if its wreck or cargos are found on
or near the Indian coast or are brought to any Indian port, in the
absence of the master/owner, the statute mandates that the
consular officer of the country in which the vessel is registered or
the cargo owners belong, shall be deemed to be the agent of the
owner with respect to the custody and disposal of the articles
[Sec.399 (2)]. If the owner of the wreck does not appear and
claim the balance of the proceeds within one year from the date
of sale, the said balance shall become the property of the Central
Government [Sec.399 (3)]. These provisions also fail to address
the larger question of compulsory wreck removal from navigable
waters.
The scope and applicability of the period of limitation laid down in
Sec. 399 was considered by the High Court of Judicature at
Mumbai in State Bank of India v. Official Liquidator [AIR 1995
Bom 219]. It was held by the Hon’ble Court that even though
Sec.399 provides for a period of limitation within which an owner
can set up his claim, since the said provision is conspicuously
absent in Sec. 398, limitation provided in Sec. 399 cannot be
imported into Sec. 398. It was also held that Sec.399 which
applies to the owner of a ship or a wreck cannot be made
applicable to a mortgagee.
Certain acts with respect to wrecks like boarding or attempt to
board a vessel which has been wrecked, stranded or is in distress
without the permission of the Master, detrimentally interfering
with the saving of any vessel in distress or wreck, secrete any
wreck or obliterate any marks thereon or wrongfully carrying
away or remove any part of any wreck have been specifically
prohibited by the statue [Sec.400].
In the English statute, the provisions regarding vessels in
distress has been separately dealt with from the provisions
relating to Wreck. Hence the confusion created by Secs. 2 (55)
and 392 of the Indian Act over what constitutes a Wreck has
been overcome to certain extent. Moreover, Secs. 241 to 244 of
the English Act provided a more clear and specific regime
regarding unclaimed wrecks than the Indian Statue. A provision
akin to Sec. 241 of the English Act which in unequivocal terms
vests all unclaimed wrecks in the Crown is not seen in the Indian
Act.
Recent incidents have shown that Indian law regarding wreck
requires a through appraisal and redrafting. In so far as the
Nairobi International Convention on the Removal of Wrecks, 2007
has been adopted by International Maritime Organization after
detailed discussions, if India decides to have a restatement of its
law relating to wrecks, it would be fruitful to look beyond the
English Act into the provisions of the said Convention.
The Convention on the Removal of Wrecks, 2007 provides a
detailed frame work for dealing with wrecks. The Convention
defines a wreck-related hazard as a “danger or impediment to
navigation” or a condition or threat that “may reasonably be
expected to result in major harmful consequences to the marine
environment, or damage to the coastline or related interests of
one or more states.” Articles in the convention cover:
reporting and locating ships and wrecks - covering the reporting
of casualties to the nearest coastal State; warnings to mariners
and coastal States about the wreck; and action by the coastal
State to locate the ship or wreck;
criteria for determining the hazard posed by wrecks, including
depth of water above the wreck, proximity of shipping routes,
traffic density and frequency, type of traffic and vulnerability of
port facilities. Environmental criteria such as damage likely to
result from the release into the marine environment of cargo or
oil are also included;
measures to facilitate the removal of wrecks, including rights and
obligations to remove hazardous ships and wrecks - which sets
out when the ship owner is responsible for removing the wreck
and when a State may intervene;
liability of the owner for the costs of locating, marking and
removing ships and wrecks - the registered ship owner is
required to maintain compulsory insurance or other financial
security to cover liability under the convention; and
settlement of disputes.
The 2007 Convention thus makes the ship owners financially
liable and require them to take out insurance or provide other
financial security to cover the costs of wreck removal. It provides
States with a right of direct action against insurers. It enables
states parties voluntarily to extend the convention's scope to
their territorial seas. The convention will provide a legal basis for
the states to remove from their exclusive economic zones wrecks
that may pose a hazard to navigation or to marine and coastal
environment.
At a time when incidences of shipping causalities have
considerably decreased across the globe, it is alarming that the
same are on increase along the Indian coast. These points to the
poor implementation of legal norms relating to seaworthiness of
vessels in India. To make matters worse the lacunae in the
Indian law relating to the handling and removal of Wrecks is
permitting the perpetrators of illegality to go scot-free and the
public exchequer is burdened with the task of meeting the huge
expenses for wreck removal.
It is high time that India adopts a new legislation
comprehensively dealing with the handling and disposal of
maritime wrecks or appropriately amends the Indian Merchant
Shipping Act taking note of recent international developments in
the field as also the norms evolved by other maritime nations.
***
(The author can be contacted at
[email protected])
POSTED BY V.M.SYAM KUMAR AT 12:47 PM
LABELS: MARITIME WRECKS
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SYAM KUMAR
COCHIN, KERALA, INDIA
*Advocate, High Court of Kerala, Ernakulam, Cochin. *Faculty Member for Maritime law,
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*Faculty member for Law of the Sea (School of Legal Studies, Cochin University)
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COCHIN/KOCHI- LOCATION MAP
CHINESE FISHING NETS IN KOCHI
Some historians believe ‘Kochi’ was named so by the Chinese. Traders from the court of the
Chinese ruler Kublai Khan, gave Kochi the name of their homeland. The peculiar Chinese fishing
nets found here, the only place outside China where it has been spotted. Still another theory is
that Kochi is derived from the word 'Kaci' meaning 'harbour'. Kochi earned a significant position
on the world trading routes after the world famous port at Muzuris (Cranganore) was destroyed
by massive flooding of the river Periyar in 1340 AD. Records show that Muzuris (Cranganore) was
known to the Arabs and Chinese traders for centuries. After the Muzuris port was destroyed, the
forces of nature created a natural harbour at the nearby city - Kochi. The Arabs, Chinese,
Portuguese, Dutch, and the British helped Kochi emerge as a bustling centre of commercial
activity, connecting the mainland to the rest of the world.
'COTCHIN' AS THE EARLY EUROPEAN TRAVELLERS SAW IT.
PROPOSED CONTAINER TRANSHIPMENT TERMINAL AT COCHIN
HEAD QUARTERS OF COCHIN PORT AUTHORITY-COCHIN PORT
TRUST
VESSEL ENTERING COCHIN PORT
VOLVO OCEAN RACE 2008 TOUCHED KOCHI
Kochi was the only port in the Indian Subcontinent to be touched by the Volvo Ocean Race
RAIBOW BRIDGE- COCHIN-A NIGHT VIEW
BRIDGE IN COCHIN- DESIGN INSPIRED BY CHINESE FISHING NETS
QUEEN MARY DOCKS AT KOCHI
COCHIN HAS AN INTERNATIONAL AIR PORT
A flight takes off from Cochin Air Port
CHINESE FISHING NETS
KOCHI IS THE HQ OF SOUTHERN NAVAL COMMAND OF INDIAN
NAVY.
HIGH COURT OF KERALA, KOCHI - ADMIRALTY COURT
Kerala High Court has inherent Admiralty Jurisdiction to Arresst Vessels within its territorial
Jurisdiction which Includes Kerala Coast and the Lakshadweep Islands
COCHIN PORT
COCHIN PORT LAY OUT
Cochin Port Lay out
COCHIN SHIPYARD
KOCHI BACKWATERS - ANOTHER VIEW
SNAKE BOAT OF KERALA AT COCHIN
Constructed according to specifications taken from the Sthapathya Veda, an ancient treatise for
the building of wooden boats. These boats are about 100 to 138 ft in length, with the rear portion
towering to a height of about 20 ft. and a long tapering front portion. It resembles a snake with its
hood raised. Its hull is built of planks precisely 83 feet in length and six inches wide. Indira
Gandhi Boat Race is a boat race festival celebrated in the last week of December in the backwaters
of Kochi, a town in Kerala, south India. This boat race is one of the most popular vallam Kali
(snake boat race) in Kerala.
SNAKE BOATS OF KERALA
Snake boats lined up for a Race in Cochin
ENTRY TO COCHIN HARBOUR
OUR JEWISH HERITAGE
Interior of Jewish Synagogue at Fort Cochin-Jews came to Kerala and settled as early as 586 BC
for trade. Legend has it that Jews of Cochin came in mass to Cranganore (an ancient port, near
Cochin) after the destruction of the Temple in 70 C.E. A chieftain by the name of Joseph Rabban,
according to local tradition, was granted a principality over the Jews of Cochin by the Chera
Emperor of Kerala, Bhaskara Ravivarman II. Some sources say that the earliest Jews were those
who settled in the Malabar coast during the times of King Solomon of Israel.During the second
exile (586 BC) some of the Jews came and settled in Kerala. They were known as Bene Israel.
Most of them have returned to Israel by twentieth century.
OUR ISLAMIC HERITAGE
Cheraman Juma Masjid is a mosque in Kodungallur near Cochin. Believed to be built in 629 AD
by Malik Ibn Dinar, it is considered as the oldest mosque in India, and the second oldest mosque
in the world to offer Jumu'ah prayers. Constructed during the lifetime of Prophet Muhammad,
the bodies of some of his original followers are said to be buried here.
OUR CHRISTIAN HERITAGE
The Santa Cruz Basilica, a church in Kochi, Kerala built originally by the Portuguese in 1505 and
elevated to a Cathedral by Pope Paul IV in 1558, was spared by the Dutch conquerors who
destroyed many Catholic buildings. Later the British demolished the structure and Bishop Dom
Gomez Vereira commissioned a new building in 1887. Consecrated in 1905, Santa Cruz was
proclaimed a Basilica by the Pope John Paul II in 1984. This magnificent church is a must see
destination for tourists who come to Kochi. While Augustus Caesar (31 BC- 14 AD) was the
Emperor of Rome and Herod the Great (37-4 BC) was King of Judea, ambassadors from Malabar
visited the Emperor Augustus. These ambassadors were called The Wise Men From the East in
the Bible.[7] Even today, the descendants of these Wise Men gather every year at a place in
Kerala. It was to this country Kerala, Thomas the Apostle, one of the disciples of Jesus Christ
arrived in the first century, (believed to be in 52 AD). He landed at Muziris (now known as
Pattanam, near Cochin on the Malabar Coast). During his stay some among the Jews and the
Wise Men became followers of Jesus of Nazareth. They were called Nazranis, meaning “followers
of Jesus of Nazareth.” By twenty-first century they called themselves as Christians.
LAND OF TEMPLES.
A Hindu Temple near Cochin.-Hinduism is often stated to be the "oldest religious tradition" or
"oldest living major tradition." Hinduism is a diverse system of thought with beliefs spanning
monotheism, polytheism, panentheism, pantheism, monism, and atheism. It is formed of diverse
traditions and types and has no single founder. Hinduism is the world's third largest religion after
Christianity and Islam, with approximately a billion adherents, of whom about 905 million live in
India. Kerala is home to Hindu saints and swamis of all castes.
