Madras High Court
In Both Applications vs Mr.Nicholas John Richardson on 19 October, 2024
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
2024:MHC:3596
A.Nos.2275 & 2276 of 2023 in
C.S(Comm Div)Nos.109 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order Reserved on 06.09.2024
Order Pronounced on 19.10.2024
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
A.Nos.2275 & 2276 of 2023 in
C.S(Comm.Div)No.109 of 2022
In both applications:
The Shipping Corporation of India Limited,
Shipping House,
245, Madame Cama Road,
Mumbai, Maharashtra – 400 021
Represented by its
Regional Deputy General Manager. ... Applicant
-vs-
Mr.Nicholas John Richardson ... Respondent
Prayer in A.No.2275 of 2023: Judge's Summons filed under Order
XIV Rule 8 of Madras High Court Original Side Rules Read with
Order VII Rule II of Civil Procedure Code to reject the plaint in
C.S(Comm.Div)No.109 of 2022.
1/29
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A.Nos.2275 & 2276 of 2023 in
C.S(Comm Div)Nos.109 of 2022
Prayer in A.No.2276 of 2023 Judge's Summons filed under Order XIV
Rule 8 of Madras High Court Original Side Rules Read with Clause
12 of the Letters Patent Act 1862 Read with Section 151 of Civil
Procedure Code to revoke the leave to sue granted against the
defendant in A.No.2098 of 2022 in C.S.(Comm.Div) No.109 of 2022.
In both applications:
For Applicant : Mr.Joy Thattil Ittoop
Mr.Bijish B Tom
For Respondent : Mr.K.Krishnaswamy
for Mr.S.Vasudevan
COMMON ORDER
After obtaining leave to sue in Application No.2098 of 2022, by
order dated 07.06.2022, the suit was filed as an admiralty action in
personam to recover damages from the defendant for the collision
allegedly caused by the defendant. The sole defendant was served
suit summons on 01.07.2022. By these applications, the defendant
seeks rejection of the plaint and revocation of leave to sue,
respectively.
Counsel and their contentions
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2. Oral arguments on behalf of the applicant were advanced by
Mr.Joy Thattil Ittoop and on behalf of the respondent by Mr.
K.Krishnaswamy.
3. Learned counsel for the applicant/defendant submitted that
the alleged collision occurred on 30.01.2018 about 23 nautical miles
into the sea off the Kanyakumari coast. By referring to Section 3 of
the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act,
2017 (the Admiralty Act), he submitted that the Court's jurisdiction is
exercisable in respect of maritime claims only over the waters up to
the limits of the territorial waters of their respective jurisdictions.
Since the collision occurred beyond the territorial waters, he
contended that leave is liable to be revoked. As regards actions in
personam under Section 7 of the Admiralty Act, learned counsel
contended that such actions would only lie where the defendant
actually and voluntarily resides or carries on business. By pointing
out that the defendant carries on business in Mumbai in the State of
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Maharashtra, learned counsel contended that the action is not
maintainable before this Court.
4. Learned counsel next contended that the plaintiff failed to
exhaust pre-institution mediation in terms of Section 12A of the
Commercial Courts Act, 2015 (the Commercial Courts Act) and,
therefore, the plaint is liable to be rejected in terms of the law laid
down by the Hon'ble Supreme Court in Patil Automation Private
Limited and others v. Rakheja Engineers Private Limited, (2022) 10 SCC 1
(Patil Automation).
5. In response to these contentions, learned counsel for the
respondent/plaintiff submitted that the cause of action arose within
the jurisdiction of this Court. Learned counsel submitted that the
plaintiff's boat, NELSON – I, sunk on account of collision with the
defendant's ship, MV SCI MUMBAI, which was operated in a rash
and negligent manner. Learned counsel also submitted that the radar
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images available with the Directorate General of Shipping establish
that the collision was caused by the defendant. According to learned
counsel, such loss is liable to be compensated by the defendant, as the
owner of the ship, in terms of the Merchant Shipping Act, 1958 (the
Merchant Shipping Act) and the Merchant Shipping (Prevention of
Collisions at Sea) Rules, 1975.
6. Learned counsel further submitted that the plaintiff's claim
qualifies as a maritime claim under the Admiralty Act and that it is
maintainable as an action in personam under Sections 6 and 7 thereof.
As regards the exercise of jurisdiction under Section 7 of the
Admiralty Act, learned counsel submitted that an action in personam
is maintainable as long as the cause of action arises, wholly or partly,
within India or the defendant voluntarily resides or carries on
business or personally works for gain in India. By referring to the
Senior Courts Act, 1981 (the Senior Courts Act), learned counsel
submitted that Section 7 is inspired by the UK statute and that it
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departs from the International Convention on Certain Rules
concerning Civil Jurisdiction in matters of Collision, 1952
(International Collision Convention). By comparing and contrasting
Article 1 of the International Collision Convention, which limits
jurisdiction to the Court where the defendant has its habitual
residence or place of business or the Court of the place where the
arrest was effected, with Section 22(2) of the Senior Courts Act,
learned counsel submitted that Section 7 is substantially similar to the
Senior Courts Act. Learned counsel also referred to the judgment of
the Hon'ble Supreme Court in M.V.Elisabeth and others v. Harwan
Investment and Trading Pvt. Ltd. 1993 Supp (2) SCC 433 (M.V.
Elisabeth), which was pronounced prior to the enactment of the
Admiralty Act, to contend that the genesis, evolution and basis for
the exercise of admiralty jurisdiction was discussed elaborately
therein in that context.
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7. Learned counsel then submitted that the cause of action did
not end with the collision and extended to events subsequent thereto,
such as the lodging of the police complaint, the estimation of loss
suffered by the plaintiff, etc. Since a part of the cause of action arose
within the jurisdiction of India and, in particular, within the
jurisdiction of this Court, he submitted that leave is not liable to be
revoked.
8. As regards the alleged non compliance with Section 12A of
the Commercial Courts Act, by referring to Patil Automation, learned
counsel submitted that the Supreme Court fixed 20.08.2022 as the cut
off date for the application of Section 12A. Since the suit was
presented on 28.02.2022, learned counsel submitted that the plaint is
not liable to be rejected with reference to Patil Automation.
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Discussion, analysis and conclusions
9. The record discloses that the plaint was presented on
28.02.2022, re-presented on 26.04.2022 and admitted on 14.06.2022. In
Patil Automation, the Supreme Court declared that Section 12A of the
Commercial Courts Act is mandatory and that the plaint is liable to
be rejected if the suit is instituted in contravention of Section 12A.
However, the Court made such declaration effective from 20.08. 2022.
Since the suit was admittedly presented and even admitted prior to
20.08.2022, the plaint is not liable to be rejected on the ground of
contravention of Section 12A. Because the contravention of Section
12A is the only basis on which A.No.2275 of 2023 was filed, such
application is liable to be rejected.
10. Turning to the application to revoke leave, such application
was filed on the ground that an action in personam is not maintainable
before this Court under the Admiralty Act. The expression
“admiralty jurisdiction” is defined in Section 2(1)(a) of the Admiralty
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Act as under:
“(a)”admiralty jurisdiction” means the jurisdiction
exercisable by a High Court under section 3, in respect of
maritime claims specified under this Act”
Section 3, in turn, confers admiralty jurisdiction on the respective
High Courts in respect of all maritime claims by prescribing as under:
“3. Admiralty jurisdiction.—Subject to the
provisions of sections 4 and 5, the jurisdiction in respect
of all maritime claims under this Act shall vest in the
respective High Courts and be exercisable over the
waters up to and including the territorial waters of
their respective jurisdictions in accordance with the
provisions contained in this Act:
Provided that the Central Government may, by
notification, extend the jurisdiction of the High Court up
to the limit as defined in section 2 of the Territorial
Waters, Continental Shelf, Exclusive Economic Zone and
Other Maritime Zones Act, 1976 (80 of 1976). “
(emphasis added)
As is evident from the text of Section 3, admiralty jurisdiction is
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exercisable over waters up to the limits of the territorial waters. The
words “respective High Courts” and “up to and including the
territorial waters of their respective jurisdictions”, which are
emphasised in bold font above, underscore that this jurisdiction is
vested in specific High Court(s).
11. The expression “territorial waters” is defined in Section
2(1)(k) of the Admiralty Act as having the same meaning assigned to
it in the Territorial Waters, Continental Shelf, Exclusive Economic
Zone and Other Maritime Zones Act, 1976 (Act 80 of 1976). Under
Section 3(2) of Act 80 of 1976, “the limit of the territorial waters is the
line every point of which is at a distance of twelve nautical miles
from the nearest point of the appropriate baseline.” Thus, admiralty
jurisdiction is exercisable over waters up to 12 nautical miles into the
sea. This leads to the question as to which High Court would have
jurisdiction and whether the Admiralty Act contains any provisions
to identify the jurisdictional High Court. The expression “High
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Court” is defined in Section 2(1)(e) of the Admiralty Act as under:
“(e) “High Court”, in relation to an admiralty
proceeding, means any of the High Court of Calcutta,
High Court of Bombay, High Court of Madras, High
Court of Karnataka, High Court of Gujarat, High Court of
Orissa, High Court of Kerala, High Court of Judicature at
Hyderabad for the State of Telangana and the State of
Andhra Pradesh or any other High Court, as may be
notified by the Central Government for the purposes of
this Act; “
The above provision defines High Court in relation to an admiralty
proceeding by mentioning specific High Courts, each of which
exercises jurisdiction over territories or States with a coast, whereas
other High Courts exercising jurisdiction over landlocked territories
or States are not mentioned. The definition does not, however,
contain any indication as to which of the named High Courts would
have jurisdiction over a particular dispute or the basis for identifying
such High Court.
12. The text of Section 3 also discloses that the exercise of
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admiralty jurisdiction under Section 3 is subject to the provisions of
Sections 4 and 5. Section 4 enables the exercise of jurisdiction by the
High Court to hear and determine any question on a maritime claim
against any vessel, provided such maritime claim arises out of
matters specified in clauses (a) to (w) of sub-section (1) of Section 4.
Since Section 4 enables the exercise of jurisdiction to determine
maritime claims against any vessel, i.e. thing or rem, in contrast to
person, it is clear that Section 4 is directed at actions in rem. Section 5,
which deals with arrest of a vessel, reads, in relevant part, as under:
“5. Arrest of vessel in rem -(1) The High Court may order
arrest of any vessel which is within its jurisdiction
for the purpose of providing security against a maritime
claim which is the subject of an admiralty proceeding....”
(emphasis added)
Thus, Section 4 does not contain an express prescription with regard
to the jurisdictional High Court for an action in rem but the nature of
jurisdiction indicates that it should be the High Court with
jurisdiction over the vessel. Section 5, by contrast, uses the phrase
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“the High Court may order arrest of any vessel which is within its
jurisdiction” for the purpose of securing a maritime claim, thereby
making it abundantly clear that jurisdiction to arrest can be exercised
only if the vessel concerned is within the High Court's jurisdiction.
Against this statutory backdrop, it is instructive to turn to
M.V.Elisabeth for guidance on the basis for exercising admiralty
jurisdiction.
13. In M.V.Elisabeth, after tracing the history of admiralty law,
while holding that the admiralty jurisdiction of the High Court of
Andhra Pradesh extended to outward cargo, the Supreme Court held
as under in paragraphs 55 and 89 (in relevant part):
“55. 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,
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however, imperative in an action in rem that the ship
should be within jurisdiction at the time 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.”
89. 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 maritime claim, wherever arising, is a
demonstrable manifestation and an essential attribute of
territorial sovereignty....”
Sections 4 and 5 of the Admiralty Act read in the light of M.V.
Elisabeth lead to the conclusion that an admiralty action in rem is
maintainable in the High Court having jurisdiction over the vessel at
the time of commencement of such action irrespective of the place
where the cause of action for the maritime claim arose and
irrespective of the place of residence or business or place of
incorporation of the defendant(s). Because this is an action in
personam, it is necessary to consider the basis for the exercise of
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admiralty jurisdiction by a High Court in such matters.
14. Section 6 of the Admiralty Act deals with the exercise of
admiralty jurisdiction in personam and the said provision is as under:
“6. Admiralty jurisdiction in personam.—
Subject to section 7, the High Court may exercise
admiralty jurisdiction by action in personam in respect of
any maritime claim referred to in clauses (a) to (w) of
sub-section (1) of section 4. “
The language of Section 6 indicates that exercise of admiralty
jurisdiction in personam is subject to Section 7 and extends to any
maritime claim referred to in clauses (a) to (w) of sub-section (1) of
Section 4. The matters enumerated in clauses (a) to (w) of sub-section
(1) of Section 4 include loss or damage caused by the operation of a
vessel. Therefore, on a conjoint reading of Sections 3, 4 & 6, a claim
arising out of or relating to loss or damage caused by the operation of
a vessel, such as the claim in this suit, may be maintained as an action
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in personam provided it satisfies the requirements of Section 7.
15. Section 7 reads as follows:
“7. Restrictions on actions in personam in
certain cases.—(1) Where any maritime claim arising in
respect of a damage or loss of life or personal injury
arising out of any—
(i) collision between vessels,
(ii) the carrying out of or omission to carry out, a
manoeuvre in the case of one or more vessels,
(iii) non-compliance, on the part of one or more
vessels, with the collision regulations made in pursuance
of section 285 of the Merchant Shipping Act, 1958 (44 of
1958),
the High Court shall not entertain any action under this
section against any defendant unless—
(a) the cause of action, wholly or in part, arises in
India; or
(b) the defendant, at the time of commencement of
the action by the High Court, actually and voluntarily
resides or carries on business or personally works for gain
in India:
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Provided that an action may be entertained in a
case, where there are more defendants than one and where
one of the defendants who does not actually and
voluntarily reside or carry on business or personally work
for gain in India is made a party to such action either with
the leave of the court, or each of the defendants acquiesces
in such action.
(2) The High Court shall not entertain any action
in personam to enforce a claim to which this section
applies until any proceedings previously brought by the
plaintiff in any court outside India against the same
defendant in respect of the same incident or series of
incidents have been discontinued or have otherwise come
to an end.
(3) The provisions of sub-section (2) shall apply to
counter-claims as they apply to actions except
counter-claims in proceedings arising out of the same
incident or series of incidents.
(4) A reference to the plaintiff and the defendant for
the purpose of sub-section (3) shall be construed as
reference to the plaintiff in the counter-claim and the
defendant in the counter-claim respectively.
(5) The provisions of sub-sections (2) and (3) shall
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not apply to any action or counter-claim if the defendant
submits or agrees to submit to the jurisdiction of the High
Court.
(6) Subject to the provisions of sub-section (2), the
High Court shall have jurisdiction to entertain an action
in personam to enforce a claim to which this section
applies whenever any of the conditions specified, in
clauses (a) and (b) of sub-section (1) is satisfied and any
law for the time being in force relating to the service of
process outside the jurisdiction shall apply.”
16. Three aspects should be noticed in Section 7. First, the
heading is “restrictions on actions in personam in certain cases”.
Although a heading does not control the meaning of a statutory
provision, it is indicative that the provision is intended to impose
restrictions with regard to certain types of action in personam. Sub-
section (1) of Section 7 makes it clear that these restrictions are
limited to maritime claims in respect of damage or loss of life or
personal injury arising out of: collision between vessels; the carrying
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out of or failure to carry out a manoeuvre in relation to one or more
vessels; or non-compliance with the collision regulations made under
Section 285 of the Merchant Shipping Act by one or more vessels.
When read with Section 6, the conclusion that follows is that the
restrictions in Section 7 do not apply to other types of maritime claim
in personam. Secondly, as regards an action in personam that falls
within the scope of Section 7, a restriction is imposed that “ the High
Court shall not entertain any action under this section against any
defendant unless the cause of action arises, wholly or partly, in India
or the defendant, at the time of commencement of the action,
voluntarily resides or carries on business or personally works for
gain in India. Thirdly, sub-section (2) of Section 7 imposes a further
restriction that the High Court should not entertain an action in
personam, if it falls within the scope of Section 7, unless any other
proceedings previously brought by the plaintiff in any Court outside
India against the same defendant in respect of the same incident or
series of incidents have been discontinued or have otherwise come to
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an end. The implications of Section 7 on the exercise of admiralty
jurisdiction in personam fall for consideration next.
17. As noticed in the preceding paragraph, the object of Section
7 is not to expand the basis for exercising admiralty jurisdiction in
personam in cases falling under Section 7, but rather to impose
restrictions in relation thereto. When viewed from that perspective, it
becomes clear that clauses (a) and (b) of sub-section (1) of Section 7
are not intended to confer jurisdiction on any High Court, as defined
in Section 2(1)(e), if the cause of action arose, wholly or partly, in
India or if the defendant resided or carried on business or personally
worked for gain in India at the time of commencement of the action.
Instead, clauses (a) and (b) are intended to act as additional pre-
requisites or conditions for the exercise of jurisdiction if relating to a
maritime claim in personam falling within the scope of Section 7.
These restrictions may be better appreciated in contradistinction to
the exercise of admiralty jurisdiction in rem subject to the relevant
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vessel being within jurisdiction irrespective of the place of residence,
business or incorporation of the defendant and irrespective of cause
of action. Because Section 7 deals with in personam maritime claims
relating to vessel collisions or movement, it is clearly conceivable that
these may be vessels registered outside India and owned by a foreign
person/entity. While in rem admiralty jurisdiction may be exercised
even in such situations if the vessel enters the territory over which
the High Court concerned exercises jurisdiction, in my view, the
additional requirements in clauses (a) and (b) of Section 7(1) were
introduced to preclude the exercise of in personam admiralty
jurisdiction merely based on location of vessel. The question as to
which High Court has jurisdiction in respect of in personam maritime
claims, especially those falling under Section 7, remains open and
warrants examination.
18. Section 2(2) of the Admiralty Act deals with words and
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expressions not defined therein by making the definitions in the
Merchant Shipping Act applicable thereto. Section 2(2) is as under:
“2(2)The words and expressions used herein but not
defined and defined in the Merchant Shipping Act, 1958
(44 of 1958) shall have the meanings respectively assigned
to them in that Act.”
As noticed earlier, Section 2(1)(e) of the Admiralty Act defines the
expression “High Court” in relation to an admiralty proceeding by
naming specific High Courts, but does not define or prescribe criteria
for identifying the jurisdictional High Court. Section 3(15) of the
Merchant Shipping Act defines the jurisdictional High Court as
under:
“3(15) “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; or
(b) the vessel is for the time being; or
(c) the cause of action wholly or in part arises;”
Since this definition is with reference to a vessel, its applicability to
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an action in personam is contentious. Therefore, the exercise of
admiralty jurisdiction in personam has to be decided primarily with
reference to the Letters Patent, where applicable, such as in this case,
and also by examining whether the additional pre-requisites of
Section 7 of the Admiralty Act are satisfied. I turn to this aspect next.
19. The Amended Letters Patent, 1865 confers civil admiralty
jurisdiction on this Court under clause 32 as follows:
“32. Civil – And we do further ordain that the said High
Court of Judicature at Madras shall have and exercise all
such civil and maritime jurisdiction as may now be
exercised by the said High Court as a Court of Admiralty
or of Vice-Admiralty, and also such jurisdiction for the
trial and adjudication of prize causes and other maritime
questions arising in India, as may now be exercised by the
said High Court.”
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As is evident from the discussion in M.V.Elisabeth, admiralty
jurisdiction was being exercised by High Courts in India much prior
to the enactment of the Admiralty Act, including with reference to
both the Colonial Courts of Admiralty (India) Act, 1891 (enacted
pursuant to the Colonial Courts of Admiralty Act, 1890) and the
Letters Patent. Such jurisdiction was exercised by a particular High
Court if the vessel or cause of action fell within its appellate
jurisdiction.
20. In Seawaves Shipping Services v. Adriatic Tankers Shipping
Co./MANU/TN/1108/1995, while dismissing an appeal against the
rejection of an application before this Court for arrest and sale of a
vessel at the Port of Kandla, Gujarat State, the Division Bench of this
Court considered whether this Court could exercise admiralty
jurisdiction over a vessel which is lying outside the limits of its
appellate jurisdiction. After referring to and extracting from
M.V.Elisabeth, this Court concluded that admiralty jurisdiction could
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not be exercised. Paragraph 11 of the said judgment is set out below:
“11. The Act did not alter in any manner the
territorial jurisdiction of the Admiralty Courts in
India. By Act XVI of 1891, the High Court of
Madras was declared to be a Court of Admiralty
along with High Courts of Bombay and Fort
William in Bengal. There was no subsequent
legislation either by the British Parliament or by
Indian Legislature enhancing the territorial limits
of the High Courts at Madras, Bombay and
Calcutta in their Admiralty Jurisdiction. With
reference to the subjects and causes, the scope of
the jurisdiction has been as wide as that of the
High Court of England. But with reference to
territorial limits it can by no stretch of
imagination be said that all the three High Courts
had and have concurrent jurisdiction over the
entirety of Indian Territorial waters. If that
contention is accepted it will lead to uncertainty
and conflict of decisions. With reference to the
same incident, one suit may be filed in Bombay
and another suit in Madras. Law in a civilized
country has to necessarily prescribe a definite
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forum. Otherwise, questions relating to Forum
non Convenience will often arise and transfer of
proceedings from one High Court to another will
be sought.
In reaching the above conclusion, the Division Bench of this Court
derived support from Section 3(15) of the Admiralty Shipping Act. It
remains to be seen whether the cause of action for this suit arose
within the limits of its appellate jurisdiction.
21. Before filing the suit, the plaintiff lodged a complaint at the
Colachel Marine Police Station, Tamil Nadu. Such complaint was
registered as First Information Report No.6 of 2018 (the FIR). Apart
from the above, the plaintiff has not brought an action in any Court
outside India against the defendant in respect of this incident.
Therefore, the restriction under sub-section (2) of Section 7 does not
apply.
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22. As regards the requirements of clause 32 of the Letters
Patent read with clauses (a) or (b) of sub-section (1) of Section 7, in
paragraphs 36 to 43 of the plaint, the plaintiff has asserted that the
cause of action has arisen partly within the jurisdiction of this Court
in as much as the plaintiff's boat, TN12MFB111, was registered in
Thoothukudi; FIR No.6 of 2018 was registered by the Sub-Inspector
of Police, Marine Police Station, Colachel, Tamil Nadu; the District
Collector, Thoothukudi called for an inquiry report from the Director,
Fisheries Department, Thoothukudi; the loss was estimated in
Thoothukudi District; and notices were issued by the plaintiff's
lawyer to the defendant from within the jurisdiction of this Court.
The material documents prima facie appear to support these
assertions.
23. When these facts and circumstances are considered
cumulatively, I conclude that a part of the cause of action arose in
Tamil Nadu. The additional requirements of clauses (a) and (b) of
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sub-section (1) of Section 7 of the Admiralty Act, i.e. that the cause of
action should arise, wholly or partly, within India or the defendant
should voluntarily reside or carry on business or personally work for
gain in India are satisfied because the defendant and owner of the
vessel alleged to be the cause of collision is an entity with its
registered office in Mumbai, Maharashtra, India. Consequently, no
case is made out to revoke leave.
24. For reasons set out above, both these applications are
dismissed without any order as to costs.
19.10.2024
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
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SENTHILKUMAR RAMAMOORTHY J.
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Pre-delivery order in
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19.10.2024
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