Whether a Ship can be restrained under Order 39 Rule 1 as to not to sail off without invoking the Admiralty Jurisdiction of the High Court ? Is civil Court Jurisdiction barred ?
5 Replies
ramanuj17 Dec 2009, 01:12
i believe some courts in the south, including kerala HC has no admiralty jurisdiction and uses civil remedy to arrest ships. although i am not too sure.
AnonymousLLB23 Dec 2009, 16:52
The Civil Court jurisdiction is not barred to the extent that under its Admiralty Jurisdiction the High Court of Judicature can direct that the ship be dis-allowed to sail (arrested) under the given circumstances. Such an order can be given only by the courts having admiralty jurisdiction, viz., Madras High Court and the Bombay High Court. In Mumbai such orders have to be routed through the office of the Sheriff of Mumbai. The Admiralty Jurisdiction is normally not construed to be criminal proceedings since the issues are of bilateral nature.
AnonymousLLB28 Jan 2010, 21:54
What Tomar says is not entirely correct. Technically it is possible to detain (I am not using the word “Arrest”- which has a different meaning, relevant to what Tomar was putting foreward) a ship under Order 39. However, most shipping proceedings are instituted to bring the erring ship owner to submit to the jurisdiction of the local court. Therefore, in an admiralty action most often, the suit is brought against the ship itself.
AnonymousLLB28 Jan 2010, 21:59
This is called invoking the admiralty jurisdiction or the in rem jurisdiction of a court, which is limited to certain courts in India. However, if you are relying on the CPC then you are invoking the in personam jurisdiction. Where, the opposite party is a real or juristic person unlike an admiralty action where the opposite party is the ship. Ship arrest is used as a mechanism to detain the ship. This will force the shipowner (in most cases represented by his insurer/P&I Club) to submit to the jurisdiction of the court by depositing the necessary security.
If the ship owner chooses not to submit himself to the jurisdiction then the court is free to sell the ship, and such a sale will extinguish all prior claims on the ship.
All this will not be possible if Order 39 is invoked.
AnonymousLLB28 Jan 2010, 22:01
So answer to the question would be yes but subject to limitations.
5 Replies
i believe some courts in the south, including kerala HC has no admiralty jurisdiction and uses civil remedy to arrest ships. although i am not too sure.
The Civil Court jurisdiction is not barred to the extent that under its Admiralty Jurisdiction the High Court of Judicature can direct that the ship be dis-allowed to sail (arrested) under the given circumstances. Such an order can be given only by the courts having admiralty jurisdiction, viz., Madras High Court and the Bombay High Court. In Mumbai such orders have to be routed through the office of the Sheriff of Mumbai. The Admiralty Jurisdiction is normally not construed to be criminal proceedings since the issues are of bilateral nature.
What Tomar says is not entirely correct. Technically it is possible to detain (I am not using the word “Arrest”- which has a different meaning, relevant to what Tomar was putting foreward) a ship under Order 39. However, most shipping proceedings are instituted to bring the erring ship owner to submit to the jurisdiction of the local court. Therefore, in an admiralty action most often, the suit is brought against the ship itself.
This is called invoking the admiralty jurisdiction or the in rem jurisdiction of a court, which is limited to certain courts in India. However, if you are relying on the CPC then you are invoking the in personam jurisdiction. Where, the opposite party is a real or juristic person unlike an admiralty action where the opposite party is the ship. Ship arrest is used as a mechanism to detain the ship. This will force the shipowner (in most cases represented by his insurer/P&I Club) to submit to the jurisdiction of the court by depositing the necessary security.
If the ship owner chooses not to submit himself to the jurisdiction then the court is free to sell the ship, and such a sale will extinguish all prior claims on the ship.
All this will not be possible if Order 39 is invoked.
So answer to the question would be yes but subject to limitations.