SNIPPETS

NEWS, ANALYSIS & VIEWS

JUNE 2013

Kerala High Court in a Writ Petition orders detention of ship in West Africa in a dispute between private parties for unpaid dues.
Kerala High Court in India has ordered detention of a ship lying in West Africa in a Writ Petition which in my view is not practical and just a paper order as foreign authorities are not bound by any order passed by court outside that country and it is also noted that in Kerala High Court rightly or wrongly Writ Petitions are filed these days to detain Indian flag ships as interim measures and this route is sought, as Kerala High Court is not vested with Admiralty jurisdiction, and this could be the reason in finding an innovative idea as an alternative route by filing of Writ Petition in the Kerala High Court and obtaining order of detention of a ship in a Writ Petition rightly or wrongly. The only Courts statutorily empowered to exercise admiralty jurisdiction in India are certain designated High Courts who derive their power pursuant to the Letters Patent, these are principally the High Courts of Bombay, Madras, and Calcutta and pursuant to the States Reorganisation Act, the High Court of Ahmedabad, Andhra Pradesh are also included as Admiralty Courts. Kerala High Court is not included as court with Admiralty jurisdiction therefore there is not a single order of arrest of a ship under admiralty jurisdiction till date passed by the Kerala High Court.
Recently I came across news published at Business Line dated February 26, 2013, Kochi edition that Kerala High Court in a Writ Petition had directed the Director of Ports, Port of Teema, to arrest and detain the vessel under safe-custody till the owners of the vessel furnish a security for Rs 60 lakh before the Registrar of the Kerala High Court. This Writ Petition is filed by Tradex Shipping Pvt Ltd, a company engaged for ship management for the vessel. The petitioner has been rendering ship management services to the vessel and on account of an outstanding amount of Rs 60 lakh, the company has raised a maritime claim and obtained an directive order against the vessel m.v. BMC Genesis at West Africa. Questions a. When vessel m.v. BMC Genesis is anchored at West African territorial waters is it possible to execute the order passed by Kerala High Court in a Writ Petition detaining the vessel in West Africa?
. 1. News appearing at http://www.thehindubusinessline.com/industry-and-economy/logistics/keralacourt-orders-arrest-of-ship-in-w-africa/article4456070.ece 2. Code of Civil Procedure, 1908 at http://legalapproach.net/legal.php?nid=739 3. What is a Writ Petition at http://commonlaw-sandeep.blogspot.in/2009/04/how-to-file-writ-petitionor-pil-writ.html

Answer.a. Foreign authorities are not bound by the order passed by a court outside that country. Authorities at West Africa being Director of Ports, Port of Teema are not bound by any order of Indian court, therefore the vessel in all probabilities cannot be detained at West Africa. In practical sense the order passed by Kerala Court cannot be executed in West Africa and is merely a paper order. The Writ Petition filed by Tradex Shipping Company Pvt Ltd is pending and only an interim order may have been passed by the Court. At common law, a court can grant interim relief only where this is needed to protect an applicant's rights until final judgment is given in proceedings before that court. This means there are two requirements for such relief, There must be an underlying substantive cause of action that can be decided in the proceedings. The court must have jurisdiction to grant final relief against the defendant. This raises difficult issues where the defendant is overseas. Courts have therefore been unwilling to grant interim relief in support of proceedings in a foreign court. Interim orders are only available with any certainty within the jurisdiction in which the substantive claim is to be heard. A party would need to begin substantive proceedings in the other jurisdiction (In the given case West Africa) if they wanted to obtain interim relief there even if it is not the appropriate place to decide the matter. The correct forum would have been to seek relief from court at West Africa where the vessel is presently rather than obtaining paper order which foreign authorities are not bound by the order of Kerala High Court. The Petitioner ought to have been advised rightly and would have been in a better position had the court in West Africa given relief to the Petitioner. Unnecessary cost, inconvenience and delay results from such duplicate proceedings. The Petitioner may have to withdraw the Writ Petition in India if a separate proceeding is to be initiated at West Africa. Courts may object to forum shopping for several reasons. It would offend the sense of justice, if the fair resolution of a case should hinge on technical differences from one jurisdiction to the next. It is also to be noted that the Writ Petition is pending and is therefore subjudice also copy of the order is not available at Kerala High Court website therefore the Advocate for the Petitioner ought not to have given a press release or commented prejudicing the case and could be a contempt of court and damaging clients case. The Registrar of the Kerala High Court may send the certified copy of the interim order for detention of the vessel m.v. BMC Genesis but the authorities are not bound by the said interim order. b. Was this action possible under Admiralty jurisdiction? Answer.b. Admiralty action cannot be filed in the Indian High Court having Admiralty jurisdiction when vessel is not in Indian territorial waters. In the given case Admiralty court cannot pass any order directing a foreign authority to arrest or detain a ship outside India. Kerala High Court in India has ordered detention of a ship lying in West Africa in a Writ Petition which in my view is not practical and just a paper order as foreign authorities are not bound by any order passed by court outside that country and it is also noted that in Kerala High Court rightly or wrongly Writ Petitions are filed these days to detain Indian flag ships as interim measures and this route is sought, as Kerala High Court is not vested with Admiralty jurisdiction, and this could be the reason in finding an innovative idea as an alternative route by filing of Writ Petition in
. 1. News appearing at http://www.thehindubusinessline.com/industry-and-economy/logistics/keralacourt-orders-arrest-of-ship-in-w-africa/article4456070.ece 2. Code of Civil Procedure, 1908 at http://legalapproach.net/legal.php?nid=739 3. What is a Writ Petition at http://commonlaw-sandeep.blogspot.in/2009/04/how-to-file-writ-petitionor-pil-writ.html

the Kerala High Court and obtaining order of detention of a ship in a Writ Petition rightly or wrongly. The only Courts statutorily empowered to exercise admiralty jurisdiction in India are certain designated High Courts who derive their power pursuant to the Letters Patent, these are principally the High Courts of Bombay, Madras, and Calcutta and pursuant to the States Reorganisation Act, the High Court of Ahmedabad, Andhra Pradesh are also included as Admiralty Courts. Kerala High Court is not included as court with Admiralty jurisdiction therefore there is not a single order of arrest of a ship under admiralty jurisdiction till date passed by the Kerala High Court. Kerala High Court website has listed all jurisdictions available to all the High Courts in India and appears to be software generated by default and would not indicate that this High Court is vested with Admiralty jurisdiction c. Can Indian court under a Writ Petition pass an order directing a vessel to be detained in West Africa? Will the position be the same if the ship involved is an Indian flag vessel and registered in India. Answer.c. The vessel m.v. BMC Genesis is an Indian flag vessel (IMO number 9381938/ Call Sign AUQH) and her registered owner as per registry search is Bharat Marines Co India a company with its registered address at Care of Tradex Shipping Co Pvt Ltd (Tradex India), 24, Bagavantham Street, Thygaravanagar, Chennai, 600017, India while the Petitioner is Tradex Shipping Co Pvt Ltd. The Respondent in the Writ Petition is Lakshadweep Development Corporation Ltd. The disputing parties are private parties for unpaid dues by the vessel owner to the ship management company. One needs to understand when a Writ Petition can be filed. The Constitution broadly provides for five kinds of "prerogative" writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition. 1. The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. 2. The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court. 3. The writ of certiorari is issued to a lower court directing that the record of a case be sent to the higher court for review, together with all supporting files, evidence and documents. 4. The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties. 5. The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court questions the authority by which the person supports his or her claim. A Writ Petition is normally not maintainable against a private entity, since writs are generally filed against public authorities or organs exercising public functions.

. 1. News appearing at http://www.thehindubusinessline.com/industry-and-economy/logistics/keralacourt-orders-arrest-of-ship-in-w-africa/article4456070.ece 2. Code of Civil Procedure, 1908 at http://legalapproach.net/legal.php?nid=739 3. What is a Writ Petition at http://commonlaw-sandeep.blogspot.in/2009/04/how-to-file-writ-petitionor-pil-writ.html

In Binny Limited and Anr. v. V. Sadasivan and Ors., the Supreme Court has held that a writ petition under Article 226 of the Constitution is normally issued against public authorities but could also be issued against private authorities when they were discharging public functions. In the Indian legal system a Writ Petition is filed in the High Courts and the Supreme Court under Article 226 and Article 32 of the Indian Constitution. A Writ Petition filed in a civil dispute, with regard to, for instance, property, is also called a Writ Petition (Civil) or a Civil Writ Petition in the cause title. The prerogative writs issued by Courts in India are habeas corpus, certiorari, mandamus, prohibition and Quo Warranto. Other factors that needs to be considered for injunction or restraining order in a civil action is the cause of action under Code of Civil Procedure, 1908. Section 20 of the code reads as Suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction. (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Rightly or wrongly the order is passed by the Kerala High Court against the ship lying at West Africa (answered on the basis of the news report as order in the Writ Petition is not found on the official website of Kerala High Court and the Petition is pending and not disposed off, as of date). The correct forum would have been to seek relief from court at West Africa rather than obtaining paper order which foreign authorities are not bound by the order of Kerala High Court. The Petitioner ought to have been advised rightly and would have been in a better position had the court in West Africa given relief to the Petitioner. d. Can you generally obtain an order of detention from the Indian court of a ship flying foreign flag or Indian flag in a Writ Petition whether cause of action has arisen in India or not? Answer.d. No. You cannot in a Writ Petition in disputes between private parties for unpaid dues (see answer c for when can a Writ Petition be filed) but under Admiralty jurisdiction a ship can be arrested no matter where the cause of action has arisen, the ship should be in Indian waters or should arrive Indian waters within reasonable time. Kerala High Court is not vested with Admiralty jurisdiction and there is not a single order of arrest of a ship under admiralty jurisdiction till date passed by the Kerala High Court and this could be the reason filing of Writ Petition in the Kerala High Court and obtaining order of detention in a Writ Petition rightly or wrongly.

. 1. News appearing at http://www.thehindubusinessline.com/industry-and-economy/logistics/keralacourt-orders-arrest-of-ship-in-w-africa/article4456070.ece 2. Code of Civil Procedure, 1908 at http://legalapproach.net/legal.php?nid=739 3. What is a Writ Petition at http://commonlaw-sandeep.blogspot.in/2009/04/how-to-file-writ-petitionor-pil-writ.html

The correct forum would have been to seek relief from court at West Africa where the vessel is presently rather than obtaining paper order which foreign authorities are not bound by the order of Kerala High Court. The Petitioner ought to have been advised rightly and would have been in a better position had the court in West Africa given relief to the Petitioner. Unnecessary cost, inconvenience and delay results from such duplicate proceedings. The Petitioner may have to withdraw the Writ Petition in India if a separate proceeding is to be initiated at West Africa. Courts may object to forum shopping for several reasons. It would offend the sense of justice, if the fair resolution of a case should hinge on technical differences from one jurisdiction to the next. e. Is there any order of arrest of a ship passed by Kerala High Court under Admiralty jurisdiction? Does Kerala High Court have Admiralty jurisdiction? Answer.e. No. There is not a single order of arrest of a ship under admiralty jurisdiction till date passed by the Kerala High Court and this could be the reason in finding an innovative idea as an alternative route by filing of Writ Petition in the Kerala High Court and obtaining order of detention in a Writ Petition rightly or wrongly. The only Courts statutorily empowered to exercise admiralty jurisdiction in India are certain designated High Courts who derive their power pursuant to the Letters Patent, these are principally the High Courts of Bombay, Madras, and Calcutta and pursuant to the States Reorganisation Act, the High Court of Ahmedabad, Andhra Pradesh are also included as Admiralty Courts. Kerala High Court is not included as court with Admiralty jurisdiction therefore there is not a single order of arrest of a ship under admiralty jurisdiction till date passed by the Kerala High Court. Kerala High Court website has listed all jurisdictions available to all the High Courts in India and appears to be software generated by default and would not indicate that this High Court is vested with Admiralty jurisdiction

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Ms. Allen Liao Kowloon, Hongkong Law & Freelance Journalist International and Comparative Law; International Trade, Transportation & Shipping; Cross Border Disputes Interned and worked as Legal associate in China, South Korea, India and United Kingdom allen.liao@toke.com

. 1. News appearing at http://www.thehindubusinessline.com/industry-and-economy/logistics/keralacourt-orders-arrest-of-ship-in-w-africa/article4456070.ece 2. Code of Civil Procedure, 1908 at http://legalapproach.net/legal.php?nid=739 3. What is a Writ Petition at http://commonlaw-sandeep.blogspot.in/2009/04/how-to-file-writ-petitionor-pil-writ.html