Saturday, December 1, 2007
LAW RELATING TO MARITIME WRECKS IN INDIA.
(V.M. Syam Kumar B.A.L., LL.M. (Maritime law), Cochin, 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. Provisions therein 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.
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; andsettlement 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 firstname.lastname@example.org)