Admiralty is an ancient legal system being derived from the customs of the early Egyptians, Phoenicians and Greeks, who carried an extensive commerce in the Mediterranean Sea. Nowadays, there are many maritime activities purporting to vessels on the oceans. In order to govern the matters relative to marine navigation, commerce, sailors, shipping, transportation of passengers and goods by sea, a need was felt to establish a discreet body of law which would look into the questions and transgression under different jurisdictions. In some jurisdictions, shipping law or maritime law is notionally subdivided into its “wet” and “dry” components. This is particularly the case in England and Wales where the ‘wet’ elements are typically bundled under the caption “admiralty law” and the “dry elements” comprise the commercial maritime law. Today, Maritime Law covers both domestic and international law based upon the relationships between private entities operating ships on the high seas. The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a state. The high seas beingopen to all nations, no state may validly subject any part of them to its sovereignty. The maritime law consists of comprehensive rules and principles derived from custom, judicial decisions, legislative enactments and international treaties.
Maritime Courts have been established by many countries of the world. Contemporary maritime law is a mixture of ancient doctrines and new laws both national and international. Among the traditional principles of admiralty still in use are — marine insurance, general average and salvage. The first Geneva Conference of the United Nations on the Law of the Sea in 1958 marked the beginning of the first phase. It resulted in four Conventions on: the territorial sea and the contiguous zone; the continental shelf; the high seas; fisheries and the protection of the living resources of the high seas. In India, we still follow many Victorian-era British statutes vis-à-vis the Admiralty Court Act, 1861. Post-Independence, the Parliament never exercised its’ powers to make Maritime Laws. Eventually, the Colonial statutes still continue to remain in force by reason of Article 372 of the Constitution of India but do not stultify the growth of law and expound it to meet the ends of justice. The courts’ presumption is based upon the presence of a vessel in its territorial jurisdiction irrespective of the fact that whether or not the vessel is domestic and / or registered. India is traditionally a maritime nation and has a rich maritime heritage. History documents trade links of India had with other nations of the world from the ages of Harappan civilization with a long coast from the State of West Bengal on the East to State of Gujarat on the West. Today, our country moves 95% of its traded goods by volume to the rest of the world. Ports & Shipping form the integral part of the maritime sector and contribute greatly to the economic growth of the country. After Atomic Energy and Space, the oceans are India’s next “techno-strategic frontier”. In recognition to this, India made commendable progress indeveloping institutional framework for ocean management since 1978. The Department of Ocean Development (DOD) was established in July, 1981 with the aim of creating deeper understanding of the oceanic regime of the Northern and Central Indian Ocean and also development of technology and technological aids for harnessing of resources and understanding of various physical, chemical and biological processes.
Amongst opportunities offered to young lawyers in emerging legal practice areas, Maritime Law has been long overlooked. Maritime Law is both interesting and challenging. Unlike Corporate Law and Capital Market being flavours in legal market practice areas, Maritime Law a law relating to, shipping, trade and transport offers global opportunities to lawyers. Though India is the third largest shipping nation, its’ Indian Maritime Legal Bar is small as compared to other maritime centres like London, Singapore, Hong Kong and New York. Maritime law covers issues like piracy, collusion of ships, mis-delivery of cargo, non-payment of seamen’s wages or bunkers supplied, shipbuilding contract, hijacking of vessels with cargo etc. With the increasing global trade and offshore Oil and Gas exploration, Maritime Law is an ever expanding law. With containerization of cargo, more sophisticated vessels such as Reefer vessels, car carriers; ultra-deep oil drilling rigs etc., Maritime Law acquires different dimensions. Though Maritime Law in India is based on earlier English statues namely the Admiralty Courts Act, 1840 read with the 1861 Act, Indian Courts since the landmark 1993 decision of the Supreme Court of m.v. “Elizabeth” has developed extensive judge-made case law keeping in mind the observation of its author Justice Thommen, who observed “It is true that Indian statues lag behind the development of international law in comparison to contemporaneous statutes in England and other maritime countries.” Making reference to various international conventions he summed up “Although these conventions have not been adopted by legislation, the principles incorporated in the conventions are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.” As Maritime Law is driven by judge-made law, legal research in International Maritime Jurisprudence and ingenious judicious thinking will enable every able lawyer to master the subject and succeed as a specialist and be part of the Global Maritime legal fraternity.
In today’s maritime world, it is highly essential for sea-going marine engineers to have a good working knowledge of Maritime Law. A marine engineer should be exposed to the legislation and OHS aspects concerning ship-board operation need to comply with various regulations and the price one has to pay for opting to do otherwise. If one understands the importance and significance of the regulations, then it becomes easier to undertake and discharge one’s responsibilities more effectively. It would pay to ask some vital questions to one-self like: How can I contribute better to implement the SOLAS (Safety of Life at Sea) regulations? What more could I contribute to MARPOL (Marine Pollution) in my capacity as an experienced Marine Engineer?
“Charity begins at home”. Safe and good ship-board practices should begin on board the vessel. Responsible Chief Engineers and Masters on board vessels have a greater role to play. This may be in the form of weekly meetings or brain storming sessions to address relevant legal and OHS aspects of Maritime Operations. Obtaining feedback at these forums is very vital. This is the only way by means of which we could improve safe working on board our vessels. The feedback should follow an action plan. Review your action plan after certain duration of interval. At this stage, we could categorize our results into two main streams, “What worked well” and “What needs improvement”. The “What worked well” could be good for many to follow suit. This may be in the form of articles in the shipping companies’ monthly magazines. Primarily, this entails some incentives in the form of a price for the best article of the month which dealt with safe working practices.
There is a need for all ship owners and ship managers to work more closely with IMO and be good contributors. One would fully appreciate that for any shipping business the bottom line is profit. But this should not absolve our duties and responsibilities to the maritime world. Let us all make earnest and dedicated efforts to assist our ship staff to do things better. Let us help them be good contributors to IMO.
Maritime Law also known as Admiralty Law deals with certain universal features that exist in all countries having admiralty law and such international features are given serious consideration by admiralty courts. There may be a suit against a foreign ship owned by a foreign company not having a place of residence or business in India is liable to be proceeded against on the admiralty side of the High Court by an action in rem in respect of the cause of action alleged to have arisen by reason of a tort or a breach of obligation arising from the carriage of goods from a port in India to a foreign port. The basis of the in rem proceeding is the maritime lien. Upon the occurrence of certain events or the non-fulfillment of obligations arising out of a contract or condition, maritime law gives the aggrieved party a right defined as a property interest in the vessel or other tangible thing involved in the amount of the accrued liability. The ratification and adoption of the United Nations Convention on the Law of the Sea by an overwhelming majority of nations, including India and more so by the industrialized nations, established a new international order on the oceans. This should contribute to the sustainable use of oceans for the future good of nations and to unravel mysteries of mother nature. This marks the beginning for all nations to put concerted efforts and trust in the UN system, to solve problems related to harmonious living of mankind and for peaceful use of the natural resources.
One major step by the Government of India towards maritime law consciousness and enthusiasm was the setting up of The Indian Maritime University at Chennai. The university has been established as a Central University by theGovernment of India under an Act of Parliament, namely, the Indian Maritime University Act, 2008 and brought into force on 14th November, 2008 and notified in the Gazette of India. The University will integrate into its fold the existing seven maritime academic institutions, namely, National Maritime Academy – Chennai, T. S. Chanakya – Mumbai, LalBahadurShastri College of Advanced Maritime Studies & Research – Mumbai, Marine Engineering Research Institute – Mumbai, Marine Engineering Research Institute – Kolkata, Indian Institute of Port Management – Kolkata and National Ship Design & Research Centre – Visakhapatnam. The academic programs comprise of Modular and ISPS courses approved by the Directorate General of Shipping, competency courses, engineering courses and endorsement courses. It is important to recognize the immense potential for developing the legal side of the maritime sector in India which can lead to a promising career path for maritime law aspirants. This virtually unlimited potential is realizable through sound university education in public and private Maritime Law.
The role of the government holds the key to the enhancement of maritime law education in India and would include the development of strategic objectives and formulation of rational policy to effectuate the same. The various components of the broad-based private maritime sector especially the shipping industry too could play an integral part to inculcate interest in the educated youth of our country
Time and again universal human rights are expressed and guaranteed by law including general principles, customary international law and treaties. The worldwide principle of human rights has been the cornerstone of international human rights law. The inception of international human rights law lays down obligations of governments to act or refrain from certain acts to regulate promotion and protection of human rights and fundamental freedom of the individuals regardless of their political, economic and cultural systems. Human rights entail such interrelated, interdependent and indivisible rights irrespective of nationality, sex, colour and religion.
The Universal Declaration on Human Rights in 1948 has been restated in international human rights conventions, declarations and resolutions. The National Human Rights Commission of India, observed the Human Rights Day on 10th December, 2010 in New Delhi which marks adoption and proclamation of the Universal Declaration of Human Rights (UDHR) in 1948 by the General Assembly of the United Nations. The overall notion of all human rights is indivisible whether civil or political. The philosophy of human rights addresses questions about the existence, nature, justification and legal status of human rights. The strong claims made on behalf of human rights frequently provoke skeptical doubts and countering philosophical defenses. Reflection on these doubts and the responses that can be made to them has become a sub-field of political and legal philosophy with a substantial literature. Today, there are fundamentaldifferences between the existing human rights and the natural rights of the past. In the middle ages and later the renaissance, the decline in power of the church led society to place more of an emphasis on the individual, which in turn caused the shift away from feudal and monarchist societies, letting individual expression flourish.
In India, the professionalizing of the non-governmental sector has had an impact on finding public space for certain issues and in making work on the issues sustainable. Child labour, AIDSrelated work, the area of devolution, aiding women’s participation in panchayat institutions, and battling violence against women have found support and sustainability in funding infrastructure development and support. These have existed alongside civil liberties groups and initiatives, grassroots campaigns, the development struggle which has the Narmada BachaoAndolan at its helm or the fish-workers’ forum that has combated the encroachments by the large-scale and capital-intensive into the livelihoods of traditional fishing communities. The National Human Rights Commission of India being an autonomous statutory body was established under the provisions of The Protection of Human Rights Act, 1993 (TPHRA) on October 12, 1993 aimed at constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights andfor matters connected therewith or incidental thereto. The Commission has a wide mandate including civil and political rights, economic, social and cultural rights and group rights. The Supreme Court has also asked the Commission to monitor programmes relating to Child and Bonded Labour, the functioning of the Ranchi Institute of Neuro-Psychiatric and Allied Sciences, the Institute of Health and Hospital, Agra and the functioning of the Agra Protective Home.
It is a matter of great concern that the constituency for human rights in India, as in most parts of the world is extremely small. This, despite the fact that, during our freedom struggle, Mahatma Gandhi succeeded in a large measure in forging a sense of shared humanity and shared destiny cutting across caste, community, class, gender, region and religious divides. Gandhi created an atmosphere whereby a significant section of the wealthy and elite groups began to use their influence and clout not just for their own narrow interests but in favor of the marginalized and exploited groups. In today’s India, that sense of shared destiny has seriously eroded. For example, it is not uncommon to hear upper class urbanites refer to the poor with utter contempt as though they belong to a lower species. Expressions such as “Yeh log baat se nahinsamjhate, laat se hi maantehain” (these people do not respond to verbal persuasion, they only respond to kicks) are given vent without a trace of embarrassment to justify all kinds of high handed actions against the poor. The hard working poor who provide us all kinds of services are seen as a drag on our society to be wished out of sight after they have done their job. For example, when there is a slum clearance operation in cities, the urban elite applauds the administration for taking tough action against “illegal encroachers” conveniently forgetting that the domestic help, gardeners, cleaners and drivers they hire; the tailors, plumbers, carpenters, street vendors, whose services they use on a regular basis at abysmally low wage rates, all reside in these slums.
This “us” and “they” divide and the mindset to treat the basic survival needs of the poor with utter disdain is the primary reason why the task of defending human rights has become the monopoly of small NGO’s most of who are largely dependent on western donor agencies and the international networks floated by them. The lack of deep social roots of human rights NGO’s, their inability to touch the hearts of their own communities and neighborhoods, their dependence on foreign grants and media networks to influence the government, limits their ability to make human rights a widespread social concern.
It is vital to bridge the rich vs. poor, urban vs. rural, upper caste vs. lower caste, men vs. women divide in order to inculcate a culture of deep respect for human rights of all, including those we consider our enemies.
There have been a number of incidents which showcased the subdued violation of human rights. In India, fake encounters or extra-judicial killings by the police or the security forces better known as “encounter killings”, meaning that the killing occurred during an armed encounter between the police or security forces and the victim. The killing by the state forces has often been declared to be defensive, cases of attempted murder and other related offences are registered against the victims and the cases closed without further investigation, since, criminal cases come to an end upon the death of the accused. Despite being “unnatural deaths” and the victim having being killed, no investigation ensues to determine whether the death was in fact in an actual encounter or whether the use and the extent of use of force were justified. This is an acknowledged strategy of the state for eliminating certain kinds of opposition to the state and the established order. Another example is that of common practice to pick up people for questioning, and not record their presence in the police station till the police is ready to presentthem before a magistrate – a way of thwarting the constitutional requirement that every person taken into custody be produced before a magistrate within 24 hours. Apart from the illegality of such detention, it also makes difficult proving torture in custody during the period of illegal, unrecorded, detention. The National Human Rights Commission’s recent stand on 17,305 children who allegedly went missing in Delhi between 2008 and 2010 and out of which 2,336 are yet to be traced. The Central Bureau of Investigation had unearthed a nexus of organized crime involving over 800 gangs. This clearly shows that how the Commission takes suomotu cognizance towards the serious issue of violation of human rights of children and negligence on the part of the State to provide protection to them and while setting accountability issued notices to the Ministry of Home Affairs and the Government of Delhi. It has been rightly said by Mahatma Gandhi that, “It has always been a mystery to me how men can feel themselves honoured by the humiliation of their fellow-beings.”
The National Human Rights Commission has evolved, put in position and founded a system whereby talented students, both from India and abroad, pursuing graduate and post-graduate studies in Law, Political Science, Sociology and Criminology are accepted for internship. There are eminent universities / institutes vis-à-vis JamiaMiliaIslamia, Indira Gandhi National Open University and Indian Law Institute based in NewDelhi which offer degree, certificate and diploma courses on Human Rights.
The internationalizing of human rights has had a range of effects. International pressure, both from governments and from organisations leading to the government establishing the NHRC. The connection between human rights, trade and the “social clause” has resulted in wariness. This threat of intervention in the arena of human rights with the possibility of sanction has been one overt cause for hostility to international instruments which deal with human rights standards and conduct. The Torture Convention, the Optional Protocol to the Geneva Convention, reservation while ratifying the CEDAW (Committee on the Elimination of Discrimination against Women) and the non-consideration of signing the statute for the establishment of the International Criminal Court. Human rights and development activists have begun to reach international – particularly UN – organisations to represent their cause, and use them to demand accountability from the state. This is true with the report presented to the Human Rights Committee, under the CEDAW, for instance. The preparing of alternative country reports has also been a process of comparing state and non-state priorities.
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