Maritime Law as a practice area in India

Academia

Maritime Law as a practice area in India

Harsh G Pratap | December 2011

There is a tremendous growth in the maritime sector and India is poised to be one of the biggest players in the market. As a maritime lawyer, there are several openings available. Maritime law is extremely international in its character. It involves taking into consideration international laws and the legal systems of several countries. Read more

From the moment that we wake up every day, we use several products which have become a necessity in our daily life. Right from our toothbrush to our clothes, accessories, cereals, pulses, etc.,– all are our daily requirements. Even though a lot of these products are manufactured and available locally, many come from outside India. Every country is dependent on international trade to either import or export certain products in order to satisfy its requirements. International trade is hence crucial in today’s economy and for our basic needs. This is however not a recent phenomenon and has been the situation for centuries.

All the continents of the world are connected to each other by water i.e. the seas and the oceans. As a result, sea transport has perhaps been the oldest mode of transportation of goods as well as people. Although people now prefer using air as apreferred mode of travel internationally, sea transport is still most commonly used for transporting goods worldwide. For several centuries, people have been using the seas for the purpose of carrying out international trade. Even today, trade is hugely dependent on the seas. Maritime trade has hence been and remains an important part of our survival.

Obviously it is in everyone’s interest to ensure that the goods are safely carried from one place to another. The growth of commercial trade and transportation by sea also resulted in disputes and this is where the legal system to resolve such disputes kicks in. Despite the importance for a proper infrastructure – which includes lawyers and the courts – to help resolve such disputes, it is unfortunate that maritime law is still a branch which is not given its due attention and is not widely chosen by law students.

ON PRACTISING MARITIME LAW IN INDIA

India, with its huge coastal line and numerous major ports, has vast potentials for developing superiority in the international maritime law arena . India is also a flag state and a major trading nation. Therefore, commercial maritime interests of India can be of great importance. A ship voyage can be subject matter of numerous contracts and deals, thereby creating higher chances for disputes, between buyers, sellers, bunkers, ship breakers, and such other stakeholders. Further, disputes may arise with regard to collision, wages and allowances of crew, port obligations, and loss of life or injury to person arising during or in connection with the ship voyage. India is a common law country with an enviable history which can promote itself as a centre for numerous maritime law activities. In this context, legal expertise in maritime affairs gains a whole new importance and perspective. The admiralty side of the judicial system has been inherited from the Anglo-Saxon legal tradition. As such, High Courts which exercise Admiralty jurisdiction are Courts of first instance for the institution of Admiralty Suits, which include the High Courts of Gujarat, Bombay, Karnataka, Kerala, Madras, Andhra Pradesh, Orissa and Calcutta. The High Courts of Bombay and Calcutta exercise Admiralty jurisdiction all over India.

Apart from admiringly cases, disputes between parties can always be taken up by way of Arbitration. The Indian Arbitration Act reflects the Model Law in that it contains few detailed procedural requirements. The parties are free to agree the procedure to be followed by the tribunal. For maritime arbitrations administered by the Indian Council of arbitration, the arbitrators have to comply with the procedure stipulated in the Maritime Arbitration Rules.

Unfortunately, the absence of a complete maritime code currently in force in India is a serious lacuna. No Indian statute defines a maritime claim. India has not adopted the various Brussels Conventions; however, since the provisions of these Conventions are the result of International Unification and development of the maritime laws of the world, they can be regarded as the International common laws and, in the absence of statutory provisions, can be used to aid the courts in filling up the lacunae in the Merchant Shipping Act and other enactments concerning shipping.

As international trade gathers momentum, avenues are opening up fast for making a significant mark in Maritime Law Practice in India. In this regard, advancement of maritime affairs depends on a large extent on the availability of maritime law expertise in the country which is the need of the hour.

Mr. Rahul Dhawan

Lex Chambers, Delhi

There are a wide range of disputes which a maritime lawyer has to deal with. The most common disputes arise out of the carriage of goods by sea. To start with, the party who wants to export the goods will need a vessel to carry the goods from one place to another and there deliver the goods to a third party. There are hence already three parties involved – “the Shipper”, the person who wants to ship the goods; “the Carrier”, the person who carries the goods on the ship; and “the Receiver”, the person who will receive the goods. The shipper and the receiver will have one contract between them. This is commonly the sale contract. The shipper and the carrier will usually have a contract between them for the carriage of the goods. The receiver will not separately have a contract with the carrier but a contract which binds the shipper, the carrier and the receiver as far as the carriage is concerned is required. This is usually covered by a bill of lading. The bill of lading terms and conditions bind the shipper, the carrier and the receiver. Several disputes arise out of a bill of lading such as disputes regarding the personentitled to the goods, the quality and condition of the goods, whether the entire quantity of the goods shipped has been delivered, etc.

Another common dispute which a maritime lawyer faces is charter party disputes. The person who wants to send goods from A to B may want to hire a ship for this purpose. He may either want to hire a ship for a particular period of time or for a particular voyage or several voyages. He may also want to hire a ship and then sub-let the ship to another party. Several disputes arise out of such contractual arrangements. The most common type are whether the ship was seaworthy, whether the ship is entitled to full hire, whether the ship was unnecessarily delayed at any port, etc.

The above are the most common types of disputes and are based in contract. There are however several disputes where no contract is involved. For example, collisions or an oil spill from the ship, sinking or grounding of the ship, spilling of the ship’s fuel into the sea, etc. These incidents have a severe impact on the environment in addition to affecting individual rights. We have seen scenes of birds and fish soaked in oil being washed ashore after an oil spill. Also the rights of third parties whose livelihood depends on the sea can be severely affected due to such incidents. Disputes which arise as a result of above cases are not based in contract but are based in tort. Apart from the direct parties involved, there are also other parties such as third parties who have been affected due to the incident, the hull and machinery insurer and the third party insurer, the port authorities, etc. who are commonly involved in maritime disputes.

Maritime law is extremely international in its character. It involves taking into consideration international laws and the legal systems of several countries. Each country has its own boundaries which extend not only to the land mass but also to its waters. Each country hence has its own maritime boundaries. Any form of international trade will obviously involve two or more countries and hence two or more jurisdictions and systems of law. Any incident occurring in the high seas will also involve international law. Maritime law is hence extremely international in its character. As a maritime lawyer, one has to understand the various systems of law and apply it to the dispute in hand. Maritime law also involves a study of several international conventions which govern the rights and obligations of the various partiesinvolved. There are also conventions which govern the manner of enforcing maritime claims and which govern the arrest of ships and the priority of claims. These conventions are approved by the International Maritime Organisation and to which many countries including India are signatories.

A maritime lawyer will also have to be involved in litigation either in Court or in arbitrations. Whilst the arbitrators have the power to determine the disputes inter se, the parties will have to go to Courts to enforce their claims, apply for arrest ofthe ship, apply for security pending arbitration, etc. Maritime law is one of the few areas of law which involves a good blend of litigation and non-litigation work. A maritime lawyer will be instructed regularly by parties based abroad. The time difference is hence one factor which a maritime lawyer will have to bear with. It is routine for a maritime lawyer to be instructed just when he is ready to leave for the day. Also, a maritime lawyer will have to put in long hours and be up to date with the developments in the law not only locally but also internationally. Whilst there is a struggle period, once you are established, maritime law is very lucrative. As a successful maritime lawyer, there will also be a fair bit of travelling abroad. As a student wanting to study maritime law, whilst there are a few places in India which teach maritime law, one must be prepared to study abroad in order to have a more in depth education in maritime law and also the several international conventions. There is a tremendous growth in the maritime sector and India is poised to be one of the biggest players in the market. As a maritime lawyer, there are several openings available. You can opt for ship finance, ship sale and purchase, cargo claims or environmental claims. You can work as a legal counsel advising on the various maritime issues or in the insurance market. Since maritime law is international in character, you can also work abroad and not just in India.