Claims relating to Cargo and Contract of Affreightment
- The Admiralty jurisdiction of the High Court in respect of cargo
claims and contracts of affreightment is statutory. The High Court has
Admiralty jurisdiction over any claim arising out of an agreement relating
to the use or hire of a ship; or relating to the carriage of goods in a
ship; or tort in respect of goods carried in a ship, unless it is shown to
the Court that at the time of the institution of the proceedings any owner
or any part owner of the ship was domiciled in India; Jurisdiction in
relation to the carriage of goods was first acquired by the Admiralty
Court under the Admiralty Court Act, 1861. The Act of 1861 gave
jurisdiction to the Court over claims by the owner, consignee or assignee
of the bill of lading of any goods carried by a ship into any port in
India for damage caused by negligence or for any breach of contract or
breach of duty, unless at the institution of the cause the owner or part
owner of the ship was domiciled in India. The jurisdiction which the Court
now exercises has thus been extended to include claims which,
notwithstanding the liberal interpretation which the Act of 1861 received
could not have been entertained under the earlier statute. Under the Act
of 1861 the right to bring an Admiralty action was limited to owners of
cargo, but now there appears to be no reason why a ship-owner, provided
that he is not domiciled in India, should not bring an Admiralty action
against cargo owners, although the latter are domiciled in India; The only
express limitation upon this exercise of jurisdiction in rem in claims
relating to the carriage of goods is now the proviso that no owner or part
owner of the ship shall on the institution of the suit be domiciled in
India. Under the Act of 1861 it was held that "owner" meant the owner at
the time when the cause of action arose, and that the word "domiciled" is
to be understood in its strict legal sense. It was also held that the
claim must be in respect of goods actually shipped on board the vessel
which is made subject to proceedings in rem. Proceedings in rem can only
be instituted against the ship in which such goods have actually been
carried. Upon the same principle it would seem that a claim relating to
the use or hire of any ship is only capable of being enforced against the
ship to which such agreement relates. The language of the section does
not, however, expressly impose any such limitation, but leaves a plaintiff
free to enforce in proceedings in rem a claim relating to an agreement for
the hire of a ship, or carriage of goods in a ship, against a ship other
than that to which the agreement relates or in which the goods were
carried, belonging to the same owner.
The jurisdiction is, however, no longer confined to claims relating to
goods "carried into any port in India in any ship", to include claims in
respect of any breach of contract for the use or hire of a ship. The right
to proceed is no longer confined to the owner, consignee or assignee of
the bill of lading and therefore it would seem that the limitation of the
jurisdiction to claims where actual damage to goods has been sustained, or
a breach of contract taken place in relation to them, which the Courts
held to be a consequence of the restriction under the Act of 1861 of the
right to sue to parties interested in the goods.
A claim in personam by cargo owners against the owners of the carrying
ship who were domiciled in India are not within the jurisdiction of the
Admiralty Court. Any action in personam may now be brought in the
Admiralty Court. The jurisdiction in actions in rem has not, however, been
affected in respect of cargo claims or relating to the use or hire of a
ship. There is, therefore, no jurisdiction to entertain an action in rem
in which the owner of the ship, whether plaintiff or defendant, is
domiciled in India. The remedy applies to foreign ships as well as to
Indian ships, its objects being to give a practicable remedy, where
formerly in the great majority of cases there was no available process in
consequence of the shipowner being out of the jurisdiction. "Many foreign
ships" "came into this country, and did not deliver the goods
according to the bill of lading. The owners and consignees of cargo then
suffered great loss, and had no practicable remedy; for though the
shipowner, if in India, might have been sued for breach of contract, in
the very great majority of cases that remedy was wholly unavailable. It
appears, too, that in some cases, if not nearly in all, the owner of a
Indian ship carrying cargo to a foreign country was liable to have his
ship there seized for any breach of his contract as carrier.
As remedy depends upon the place where the owner of the ship is domiciled
at the time of the institution of the suit, it is clear that it was not
intended that a plaintiff having a claim under the section should have a
maritime lien; for a maritime lien accrues from the instant of the
circumstances creating it, and not from the date of the intervention of
the Court. The claim of the plaintiff in cases of damage to cargo or
breaches of contract therefore accrues only upon the institution of the
suit, and is subject to claims subsisting on the ship at the time of the
institution of the suit.
- BCAS: 2102-1013
-
admiraltypractice.com
