Admiralty jurisdiction and ship arrest in India

The Admiralty Law in India is still governed by the obsolete Admiralty Court Act 1861 applied by (English) Colonial Courts of Admiralty Act 1890 and adopted by Colonial Courts of Admiralty (India) Act 1891. The 1861 Act continued to be in force even after the commencement of the Indian Constitution in 1950 because of Act 372 of the Constitution which provided for continuance of existing laws. The Indian Parliament also failed to enact a domestic law relating to Admiralty law. As per the 1861 Act the High Courts of Bombay, Calcutta and Madras were vested with Admiralty jurisdiction. They were equated with the High Court of England with respect to unlimited jurisdiction. Admiralty jurisdiction had been exercised by the Court in England under the Admiralty Act 1840 through action in rem or in personam. The defendants’ vessel can be arrested by an action in rem in respect of a maritime claim. The action in rem has its foundation in maritime lien under which the claimant though an order of the court arrest the vessel. The purpose of action in rem is to compel the appearance of the ship owner. The three High Courts in India continued this practice. In M.V.Elizabeth V.Harwan Investments Co. Pvt. Ltd (AIR 1993 1014) the Supreme Court declared that the Courts need not be bound by the obsolete 1861 which was in fact repealed in India and all the High Courts in India are vested with admiralty jurisdictions. The Court gave relief to the claimant by applying the provisions of International Convention on Law of the sea, 1982, International convention on arrest of sea going ships 1952, sections 443 & 444 of Merchant shipping Act 1958.