Holding

The Andhra Pradesh High Court has jurisdiction over both inward and outward cargo claims and validly exercised admiralty jurisdiction by arresting the foreign vessel.

Summary

The plaintiff, a Goan shipping company, sued the owners of the foreign vessel M.V. Elisabeth for conversion of cargo after the ship left Marmagao without the required bills of lading and delivered the goods abroad against the plaintiff's instructions. The Andhra Pradesh High Court arrested the vessel in Vishakhapatnam under its admiralty jurisdiction and the trial court upheld the suit. The appellants challenged the High Court's jurisdiction, arguing that colonial statutes limited admiralty jurisdiction to inward cargo and that the Admiralty Court Act, 1861 could not be extended to outward cargo claims. The Supreme Court held that the High Court, as a successor to the Madras High Court, possesses unlimited jurisdiction, including over outward cargo, and that the Colonial Courts of Admiralty Act, 1890 enables the High Court to exercise the same jurisdiction as the English High Court, irrespective of later statutory developments. Consequently, the arrest of the vessel was valid and the High Court correctly exercised its admiralty jurisdiction. The appeal was dismissed and the case was remitted to the High Court for disposal.

Issues considered

The scope of admiralty jurisdiction of Indian High Courts under the Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890, especially whether it extends to claims relating to outward cargo.
Whether the arrest of a foreign vessel in Indian waters for enforcement of a claim arising from carriage of goods to a foreign port is permissible under the Merchant Shipping Act, 1958.
The interpretation of "damage" in Section 443 of the Merchant Shipping Act, 1958 – whether it includes contractual breaches and non‑physical loss of cargo.
Whether colonial statutes freeze the High Court's admiralty powers at the date of the 1861 Act or allow them to evolve with English law.
The applicability of Article 225 of the Constitution and Article 372 in preserving or expanding High Court jurisdiction.

Legislation cited

Administration of Justice Act, 1920s. Section 22
Admiralty Court Act, 1861s. Section 6
Andhra State Act, 1953s. Section 30
Bills of Lading Act, 1856
Carriage of Goods by Sea Act, 1925s. Section 2
Colonial Courts of Admiralty Act, 1890
Colonial Courts of Admiralty (India) Act, 1891
Constitution of Indias. Article 215, s. Article 225, s. Article 372
Merchant Shipping Act, 1958s. Section 3(15), s. Section 443, s. Section 444
States Reorganisation Act, 1956s. Section 52
Supreme Court Act, 1981 (England)s. Section 20

Subjects

admiralty jurisdictionaction in remforeign vesseloutward cargoMerchant Shipping ActConstitution of IndiaArticle 225colonial statutesship arrestmaritime law

Judgment

M.V. ELISABETH AND ORS.· A
v.
HARWAN INVESTMENT AND TRADING PVT. LTD., HANOEKAR
--\ HOUSE, SWATONTAPETH, VASCO-DE-GAMA, GOA

FEBRUARY 26, 1992

- [DR. T.K. THOMMEN AND R.M. SAHA!, JJ.J

Constinition of India, 1950:
B

Anicles 215, 225 and 226-Admiralty jurisdiction of High Coun;~ C
Claims agai11st foreign vessel--Cargo going out of I11dia-Action i11 rem-In-
herent jurisdiction--Whether exte11ds to claim relating i11ward and outward
cargo-Whether extends to such foreign vessel a11d the amst thereof

Anic/e 372:

Reconunendations of Law Con1111ission relating to coniprehensive Law D
011 couns of admiralty-No subseque/11 legislation passed-Co11tinue to be
govemed by legislations e11acted for colonies by British Par/iame11t -{}rgellt
11eed for legislative action-Stressed.
,,
Andhra State Act, 1953:
E
Sections 30, 5rAdmiralty jurisdictio11 of the High Cout1-Concept
a11d continua11ce of-Whether the admiralty jurisdiction exte11ds to a foreign
vessel i11 respect of claim relati11g to carriage of goods from Indian pan to
foreign pan.
F
Merchant Shipping Act, 1958 :
y
Sections 3(15), 443 and 444-Detention of foreign vessel--'Damage'--
What is-Whether confined to physical damage or wide enough to include all
niaritinze clainis.
G
Admiralty Coun Act, 1861:

Admiralty jurisdiction-Applicability in India-Powers of admiralty
couns--Whether frozen as on the date of the passing of the Act-Subsequent
changes in law-Effect of-Need for updating a11d enacting new legislation
keeping in view the rights of citizens of f!ldian Sovereign Republic. H
1003
"

1004 SUPREME COURT REPORTS [1992) 1 S.C.R.

A Words & Phrases :

'Damage' occuning in Section 443 of the Merchant Shipping Act,
1958-Meaning of

The appellant vessel, which was lying in the port of Marmagao, left
B the port without issuing bills of lading or other documents as required by
the Respondent company for the goods shipped by it. On reaching the
port of destination, despite the_ direction of the respondent company not
to deliver the goods by reason of the buyer's failure to pay the agreed price,
the appellants handed over the goods to the consignee. Since the appel·
C lants acted in breach of duty thereby committing conversion of the goods
entrusted to them, the respondent instituted a suit against the appellants
invoking the admiralty jurisdiction of the Andhra Pradesh High Court by
means of an action in rem. The vessel was arrested when it entered the
port of Vishakapatnam, ·and later released on the owner's furnishing
security by way of Bank guardntee.
D
In the proceedings before the High Court, the appellant raised a
preliminary objection as to jurisdiction stating that the suit against a
foreign ship owned by a foreign company not having a place of residence
or business in India, could not proceed on the admiralty side of the High
Court by an action in rem in respect of a cause of action by reason of a
E
tort or a breach of obligation arising from the carriage of goods from an
Indian port to a foreign port. This objection was overruled by a Single
Judge of the High Court and later confirmed by a Division Bench, against
which the present appeal has been preferred.

F Finally the suit was decreed by a Single Judge and the appeal
therefrom is the subject matter of the other matter before this Court, viz.,
the Transfer Petition.

On behalf of the appellants it was contended that the power of the
High Court on the admiralty side was confined to the provisions of the
G Admiralty Court Act, 1861 made applicable to India by the Colonial Courts
of Admiralty Act, 1890 read with the Colonial Courts of Admiralty (India)
Act, 1891 declaring certain Courts of unlimited civil jurisdiction as
Colonial Courts of Admiralty, but it remained frozen as on the date of
Admiralty Court Act, 1861; that the wide powers assumed by the British
H Courts under the subsequent statutes of that country did not enlarge the
ELISABETH v. HARWAN INVESTMENT 1005
'--{
admiralty jurisdiction of the High Court in India; that section 6 of the A
Admiralty Court Act, 1861, the only provision relating to cargo, confined
itself to inward cargo only, and therefore the case did not fall under the
ambit of section 6 of the Act; and that the arrest of the vessel in purported
exercise of admiralty jurisdiction ill rem concerning a claim relating to
outward cargo, was null and void.
B
On behalf of the respondents it was contended that every person
has a right to approach the Court of the land for appropriate remedy in
respect of claims against a foreign ship and its owne~, and to deny him
that right and to compel him to pursue remedy in a foreign country
according to an unfamiliar system of law and practice in strange and C
uncertain conditions and consequently incurring high expenses with all the
uncertainties of such a pursuit, was unjust and uncalled for; that all major
systems of law the world over recognise the competence of the coastal State
to assume jurisdiction over a foreign ship entering its waters in respect of
certain well recognised claims, irrespective of where the cause of action D
arose or where the defendant has his place of residence or business; that
the reason for such wide jurisdiction being the non-availability of the
foreign owner within the local jurisdiction, and the stay of the foreign ship
in the waters of the coastal State being necessarily brief, jurisdiction over
the ship has to be exercised by its arrest and detention by means of an
action ill rem; that the High Court being a court of record with unlimited E
jurisdiction, it 'fas never intended by the British Parliament that the
admiralty power conferred on certain High Courts should remain frozen
as on the date of the passing of the Admiralty Court Act, 1861 and that
the subsequent changes in the law of Great Britain should not widen the
jurisdiction of the Indian High Courts; and that the colo.nial statutes
Y should not be so construed as to stand in the way of the Indian High F
Courts exercising unlimited jurisdiction except where the jurisdiction is
barred expressly or by necessary implication.

Dismissing the appeal and returning the Transferred Case to the
High Court, this Court, G
HELD : (By the court) :

The High Court of Andhra Pradesh undoubtedly possesses jurisdic·
-,. lion over claims relating to inward and outward cargo. Therefore the High
Court rightly assumed jurisdiction by the arrest of the appellant vessel H
1006 SUPREME COURT REPORTS [1992] 1 S.C.R.

A while it was lying in the port of Vishakhapatnam.
I
(Per nwmmen, !) :

I. The Andhra Pradesh High Court is the successor to the Madras
High Court in respect of the territories transferred from Madras and
B included in the State of Andhra which was formed by the Andhra State
Act, 1953. In the port ofVishakhapatnam the Andhra Pradesh High Court
has thus the same jurisdiction as was vested in the Madras High Court
prior to the trdnsfer of that territory. [10210; 1022A]

C 2.1. The fact that the High Court continues to enjoy the same
jurisdiction as it had immediately before the commencement of the Con-
stitution, as stated in Article 225 of the Constitution does not mean that
a matter which is covered by the Admiralty Court Act, 1861 cannot be
otherwise dealt with by the High Court, subject to its own Rules, in exercise
of its manifold jurisdiction, which unless barred, is unlimited. To the
D extent not barred expressly or by necessary implication, the judicial
sovereignity of this country is manifested in the jurisdiction vested in the
High Courts as superior courts. [1024E, F].

2.2. It is true that the Colonial statutes continue to remain in force
by reason of Article 372 of the Constitution of India, but that does not
E
stultify the growth of law or blinker its vision or fetter its arms. Legisla-
tion has always marched behind time, but it is the duty of the Court to
expound and fashion the' law for the present and the future to meet the
ends of justice. [1026B, CJ

F Kama/akar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd.,
AIR 1961 Bombay 186; Mrs. Sahida Ismail v. Petko R. Sa/vejkov & Ors., AIR
1973 Bombay 18; Jayaswa/ Slzipping Company v. S.S.Leelavati, AIR 1954
Calcutta 415; Rzmgta Sons Pvt. Ltd. & Anr. v. S.S. Edison Mariner & Anr.,
1961 - 62 (66) Calcutta Weekly Notes 1983; Smt. Reena Padlzi v. Jagdlzir,
G AIR 1982 Orissa 57; National Co. Ltd. v. Asia Mariner, 72 CWN 635,
overruled.

3. What the Colonial Courts of Admiralty Act, 1890 did was not to
incorporate any part!cular English Statute into Indian law for the purpose
of conferring admiralty jurisdiction, but to assimilate the competent
H Courts in India to the position of the English High Court in the exercise '
ELISABETH v. HARWAN INVESTMENT 1007

of admiralty jurisdiction. It would, therefore, appear that any expansion A
of Admiralty jurisdiction of the High Court in England ·was intended
likewise to expand the jurisdiction of the Colonial Courts of Admiralty.
This should have been regarded as the position with respect to a Colonial
Court of unlimited jurisdiction. [1027H; 1028A, BJ

The Yuri Marn v. The Woron, [1927) AC 906, referred to. B

4. It was because of the unlimited civil jurisdiction that was already
vested in the Jfigh Courts that they were declared to be Colonial Courts of
Admiralty having the same jurisdiction in extent and quality as was vested in
the High Court of England by virtue of any statute or custom. The High
Courts were declared to be competent to regulate their procedure and prac- .
c
!ice in exercise of admiralty jurisdiction in accordance with the Rules made
in that behalf. There is, therefore, neither reason nor logic in imposing a
fetter on the jurisdiction of these High Courts by limiting it to the provisions
of an imperial statute of 1861 and freezing any further growth ofjurisdiction.
This is all the more true because the Admiralty Court Act, 1861 was in D
substance repealed in England a longtime ago. [1029F-H]

Halsburv's Laws of England, 4th Ed. Vol. I (!), para 307; Halsbury's
Stat11tes of England, Vol. 1, para 9, referred to.

5. The wide jurisdiction vested in the English Courts is derived from E
ancient principles of Maritime Law developed by custom and practice as
well as from subsequent statutes many of which have been incorporated in
the provisions of International Conventions unifying the laws practised in
several maritime countries. [1032E-F]

The Geetano and Maria, (1862) 7 PD; The Gas Float Whitton, N.2 F
,.
(1896), referred to.

A History of English Law, Vol. 1, 5 and 8; Rescoe's Admiralty Practice,
5th Ed.; Marsden : Select Pleas. of the Court of Admiralty, Vol. I & II; Law
and Custom of the Sea, Vol. I & II; Benedict on Admiralty, 6th Ed. (1940) G
Vol. I; Gilmore and Black; Law of Admiralty, (1957); A History of English
Law, W.S.Holdsworth, Vol. I, pp. 558-59, referred to.

6. The provision contained in section 6 of the Admiralty Court Act,
1861 limiting the jurisdiction of the Admiralty Court to claims respecting
, inward cargo was discarded by the Administration of Justice Act, 1920 H
1008 SUPREME COURT REPORTS [1992] 1 S.C.R.

A which extended the jurisdiction of the High Court to (a) any claim arising 'r'
out or an agreement relating to the use or hire of a ship; (b) any claim
relating to the carriage of goods in any ship, and (c) any claim in tort In
respect of goods carried in any ship. The Act thus applied to both inward
and outward cargoes. [1034B, CJ

B 7. The vital significance and the distinguishing feature of an
admiralty action in rem is that this jurisdiction can be assumed by the
coastal authorities in respect of any maritime claim by arrest of the ship,
irrespective of the nationality of the ship or that of its owners, or the place
of business or domicile or residence or its owners .or the place where the
C cause of action arose wholly or in part. [1038E-F]

The Fehmam, (1958) I All E.R. 333, referred to.

. lialsb11ry, op. cit. 4th Ed. Vol. I (l)para 309; D.C. Jackson, Enforce-
ment of Maritime Claims, (1985); Gilmore and Black, The Law ofAdmiral-
D ty, p. l; T71e Law of America/I Admiralty, 6th Ed. Vol. I p.3; Rescoe's
Admiralty Practice, 5th Ed. p. 29, referred to.

8. It is within the competence or the appropriate Indian Courts to
deal, In accordance with the general principles or maritime law and the
applicable provisions of statutory law, with all persons and things found
E within their jurisdiction. The power of the court Is plenary and unlimited
unless it Is expressly or by necessary implication curtailed. All remedies
which are available to the courts to administer justice are available to a
claimant against a foreign ship and its owner found within the jurisdiction
of the concerned High Court. This power of the court to render justice
r must necessarily include the power to make interlocutory orders for arrest
and attachment before judgment. [1046B-D]

T7te Bold Buccleaugh, [1851) 7 Moo. PC 267; T71e Jade, (1976) I All.
E.R. 921, 923; Cunie v. M.Knigl1t, (1897) AC 97; Bardot & Anr. v. T71e
America/I Ship or Vessel Augusta, 1873 (x) Bombay High Court Reports,
G 110, referred to.

Enforcement of Maritime Claims, 1985 p. 9; Halsbury's Laws of
England, 4th Ed. Vol. I p. 375; Halsbury's Laws of E11gland, Vol. I, para
307; referred to.

H 9. The High Courts in India are superior courts of record. They have
ELISABETH v. HAR WAN INVESTMENT 1009

original and appellate jurisdiction. They have inherent and plenary powers. A
Unless expressly or impliedly barred, and subject to the appellate or discre-
tionary jurisdiction of this Court, the High Courts have unlimited jurisdic-
tion, including the jurisdiction to determine their own powers. [1046D-E]

Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr.,
(1966] 3 SCR 744, relied on. B

Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., [1965] 2 SCR
800, distinguished.

Halsbury's Laws of England, 4th Ed. Vol. 10, para 713, referred to. C

10. In the instant case, the Andhra Pradesh High Court, as a
successor to the Madras High Court, is vested with all the appellate and
original jurisdiction, including admiralty jurisdiction to order the arrest
and detention of a ship. [1047 A-BJ
D
11. In equating the admiralty jurisdiction of the Indian High Court
to that of the English High Court, the Colonial Court of Admiralty Act,
1890 significantly refers to the admiralty jurisdiction of the High Court in
Engl.and 'whether existing by virtue of any statute or otherwise'. This is
an enabling statute, and not a statute of limitation of power. It aids, and E
does not fetter, the growth of jurisdiction. There is no reason why the
words 'statute or otherwise' should be so construed as to exclude the
various sources from which the admiralty jurisdiction in England
developed. Apart from statutes, the powers of that Court were derived
from custom and practice and the principles developed by common law
and equity as well as by the generally recognised principles of civil law F
developed and practised in Europe. There is no reason why those prin·
ciples should also not be drawn upon to enrich and strengthen the
,jurisprudence of this country, even if' the jurisdiction or our courts were
to be, by compulsions of history, considered to be curtailed and dovetailed
to the colonial past - a proposition which is neither correct nor consistent G
with our status as a sovereign republic. It is time to take a fresh look at
the old precedents. [10470-H; 1048A]

Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat & Ors. JT 1991 (3) SC 617; S.P. Gupta v. Union of India, (1982) 2
r SCR 365, relied on. H
1010 SUPREME COURT REPORTS (1992] l S.C.R.

A 12. It is well recognised in international law that a merchant ship,
though generally governed by the laws of the flag State, subjects itself to
the jurisdiction of a foreign State as it enters its waters. The Geneva
Convention on the Territorial Sea and the Contiguous Zone, 1958 and the
Law of the Sea Convention, 1982 affirm that the sovereignty of a State
extends over its internal and territorial waters. (10480)
B
The Schooner Exchange v. M. Faddon & Ors., (1812) 11 U.S. (7
Cranch) 114, 143, referred to.

Nagendra Singh, /ntemationa/ Maritime Law Conrentions, British
C Shipping Laws; Benedict, Tile Law of American Admiralty, 6th Ed. pp. 121
& 122, referred to.

13. Coastal States are entitled to assume jurisdiction in respect of
maritime claims against foreign merchant ships lying in their waters.
These ships are liable to be arrested and detained for the enforcement of
D maritime claims. The courts of the country in which a foreign ship has
been arrested may determine the cases according to merits, provided they
are empowered to do so by the domestic law of the country or in any of the
cases recognised by the International Convention relating to the Arrest of
Seagoing Ships, Brussels, 1952. The maritime claims in respect of which
E the power of arrest is recognised in law include claims relating to damage
caused by any ship either in collision or otherwise; claims relating to
carriage of goods in any ship whether by charterparty or otherwise, loss
of or damage to goods etc. These principles of international law, as
generally recognised by nations, leave no doubt that, subject to the local
F laws regulating the competence of courts, all foreign ships lying within the
waters of a State, including waters in ports, harbours, roadsteads and the
territorial w-.iters, subject themselves to the jurisdiction of the local
authorities in respect of maritime claims and they are liable to be arrested
for the enforcement of such claims. [1049C-F]

G 14. In the absence of any statute in India comparable to the English
statutes on admiralty jurisdiction, there is no reason why the words
'damage caused by a ship' appearing in section 443 of the Merchant
Shipping Act, 1958 should be so narrowly construed as to limit them to
physical damage and exclude any other damage arising by reason of the
H operation of the vessel in connection with the l'llrriage of goods. The
ELISABETH v. IIARWAN INVESTMENT 1011

-. expression is wide enough to include all maritime questions or claims. If A
goods or other property are lost or damaged, whether by physical contact
or otherwise, by rellson of unauthorised acts or negligent conduct on the
part of the shipowner or his agents or servants, wherever the cause of
action has arisen, or wherever the ship is registered, or wherever the owner
has his residence or domicile or place of business, such a ship, at the
request of the person aggrieved, is liable to be detained when found within
B
Indian jurisdiction by recourse to sections 443 and 444 of the Merchant
Shipping Act, 1958 read with the appropriate rules of practice and proce-
dure of the High Court. These procedural provisions are but tools for
enforcement of substantive rights which are rooted in general principles
of law, apart from statutes, and for the enforcement of which a party c
aggrieved has a right to invoke the inherent jurisdiction of a superior
court. [1054G; 1055A-D]

Victoria, 1887 12 PD l(}S; The Vera Cntz, (1884) 9 PD 96; Cume v. M.
Kniglrt, (1897) AC 97; 77ie Jade, (1976) 1 All. E.R. 9?0, referred to.
D
Ha/sbll!y's Laws of E11g/a11d, 4th Ed. Vol. 1(1), para 319 N. 12,
referred to.

15. The Merchant Shipping Act empowers the concerned High Court
to arrest a ship in respect of a substantive right. A right conferred by the E
Indian Carriage of' Goods by Sea Act, 1925 in respect ofoutwardcargo is one
of those rights which can be enforced by arrest and detention or the foreign
ship in order to found jurisdiction over the vessel and its owners, Just as it
can be done in respect of inward cargo by reason of the substantive rights
conferred by the Admiralty Court Act, 1861 read with the Colonial Courts or F
Admiralty Act, 1890, and other rules of law. The same principle must hold
good for carriage under a charterparty. These and other laws, such as the
law or contract, tort, crime, mortgage, marine insurance, customs, port
operations, etc. and the Civil and Criminal Procedure Codes as well as the
relevant rules <if court regulating procedure and practice together constitute
the body of substantive and procedural laws governing claims relating to G
inward and outward cargo, and such claims are enforceable against foreign
ships by recourse to arrest and detention when found within jurisdiction.
Viewed in this light, and by this reasoning, the Andhrd Pradesh High Court,
as a successor to the Madras High Court, does not lack admiralty jurisdic-
tion in respect of claims relating to outward cargo. [1056A-D] H
1012 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 16. The jurisdictional questions concerning arrest of foreign ships
for enforcement of claims against the shipowner as a transporter of goods,
which in England are regulated by the Supreme Court Act, 1981, are in
many respects left unregulated by Indian legislation. While the provisions
of various international conventions concerning arrest of ships, civil and
penal jurisdiction in matters of collision, maritime liens and mortgages
B etc. have been incorporated into the municipal laws of many maritime
States, India, lags behind them in adopting these unified rules. By reason
of this void, doubts about jurisdiction often arise, as in the present case,
when substantive rights, such as those recognised by the Carriage of Goods
by Sea Act, are sought to be enforced. The remedy lies, apart from
c enlightened judicial construction, in prompt legislative action to codify
and clarify the admiralty laws of this country. This requires thorough
research and investigation by a team of experts in admiralty law, compara-
tive law, and public and private international law. Any attempt to codify
without such investigation is bound to be futile. [1056H; 1057A-C)
D 17. The judicial power of this country, which is an aspect of national
sovereignty, is vested In the people and is articulated in the provisions of the
Constitution and the laws and is exercised by courts empowered to exercise
it. It is absurd to confine that power to the provisions of imperial statutes of
a bygone age. Access to court which is an important right vested in every
E citizen implies the existence of the power of the Court to render justice
according to law. Where statute is silent arid judicial inte..Vention is re-
quired, Courts strive to redress grievances according to what is perceived to
be principles ofjustice, equity and good conscience. [1058E, F]

S.P.Gupta v. U11io11 of India, [1982) 2 SCR 365, relied on.
F
Tire Schooner Exchange v. M'Faddon & Ors.. U.S. Supreme Court
Reports, Cranch 5-9 P. 114, referred to.

18. All persons and things within the waters of a State fall within its
jurisdiction unless specifically curtailed or regulated by rules of interna-
G tional law. The power to arrest a foreign vessel, while in the waters of a
coastal State, in respect of a maritime claim, wherever arising, is a
demonstrable manil'estation and an essential attribute of territorial
sovereignty. This power is recognised by several international conven-
tions. These conventions contain the unified rules of law drawn from
H different legal systems. Although many of these conventions have yet to
ELISABETII "· HARWAN INVESTMENT 1013
, ·-
be ratified by India, they embody principles of law recognisell by the A
generality of maritime States, and can therefore be regarded as part of our
common law. A specialised body of legal and technical experts can
facilitate adoption of internationally unified rules by national legislation.
It is appropriate that sufficient attention is paid to this aspect of the
matter by the concerned authorities. Perhaps the Law Commission of
India, endowed as it ought to be with sufficient authority, status and B
independence, as is the position in England, can render valuable help in
this regard. [1059 D-H; 1060AJ

19. The jurisdiction of the High Court is governed by the Constitu·
·lion and the laws, and the continuance in force of the existing laws is not C
a fetter but ari additional source of power. Access to court for redressal
of grievance being an important right of every person, it is essential that
the jurisdiction of the courts is construed harmoniously and consistently
with its vital function in that respect, so that absence of legislation \\ill not
jeopardise that right. [1060C, DJ D

20. Once a foreign ship is arrested in Indian waters by an order of the
High Court, in exercise of the admiralty jurisdiction vested in ii by statute, or
inherent in It as a court of record, in respect of any maritime claim against
its owner, wherever the cause of action may have arisen, and whether or not
the ship is subsequently released by the owner furnishing security, proceed· E
logs must continue against the owner as in any other suit. [1060G, HJ

21. All foreign ships entering Indian waters are presumed to know
that they fall within the jurisdiction of this country during their stay here. .F
It cannot be said that no High Court in India was il>Vested with admiralty
jurisdiction to order the arrest or the vessel in respect of a cause of action
relating to outward cargo because section 6 of the Admiralty Court Act,
1861 (read with the Colonial Courts of Admiralty Act, 1890) conferring
admiralty jurisdiction on Indian High Courts confined it to 'claims for
damage to cargo imported'. In the instant case, the appellant-vessel was G
lying in the port of Vishakapatnam when she was arrested in respect of a
cause of action relating to cargo. The High Court, therefore, rightly
assumed jurisdiction by the arrest of the vessel while it was lying in the
port of Vishakapatnam, as the High Court possesses jurisdiction over
claims relating to Inward and outward cargo. [10618-EJ H
1014 SUPREME COURT REPORTS [1992] 1 S.C.R.

A (PER SAHA!. J. CONCURRING); r
1.1. The Law of Admiralty progressed gradually from ordinary
courts, to courts or Admiralty and ultimately to High Court commencing
in commercial expedience, equity and justice and ending with statutory
enactments covering entire field from collision on ships to cargo even. All
B this was existing when the 1890 Act was enacted. But the statutes or 1840
and 1861 were not exhaustive and English courts could take cognizance
for various \\Tongs either in tort or contract. Therefore when colonial
courts were conferred jurisdiction it was not restricted or confined to
statutes, as the power was being conferred on High Courts which were, ;c
C then and even now, not only courts of unlimited civil jurisdiction but
higher courts possessed or every jurisdiction which was not expressly
or impliedly conferred on other courts. The word 'otherwise' literally
means in a different way. Effect or its use in the 1890 Act in law, was
to confer not only statutory jurisdiction possessed or by English courts
but all that which was being exercised or was capable of being exercised
D either under custom and practice or for sake or equity and justice. The
deliberate expansion of power and jurisdiction after existence of two
statutes for nearly thirty years was founded on experience and necessity
or arming the courts for every dispute that could arise relating to Ad-
miralty jurisdiction, as the law on Admiralty was a growing law. Its
E development could not be stiffied by its very nature. It was with this.
intention that the Parliament used the word, 'otherwise' in 1890 Act. No
word in a statute has to be construed as surplusage. Nor it can be rendered
ineffective or purposeless. Courts are required to carry out the legislative
intent fully and completely. The two legislations of 1840 and 1861 took
care of those actions which appeared to be settled till then. But they did
F not close the door for the· growth of law. They were enacted to 'improve
the Admiralty practice' as the jurisdiction which were conferred by the
statutes were already being exercised. Action in persona111 or rein were not
unknown. It was provided statutory base only. Statutes till 1920 in England
were not creation of ne'v rights but recognition of what was existing by
G practice or custom. Thus, the jurisdiction to entertain a claim for tort or
breach of contract by owner or master of ship while carrying cargo outside
the port could be exercised or was capable of being exercised in 1890 by
the High Court of England if occasion·arose. [1066E-H; 1067A-F)

1.2. The rationale of extending jurisdiction in Admiralty over cargo
H carried into the port has been the existence of a right in owner or consignee
ELISABETH v. HARWAN INVESTMENT 1015
,
arising out or contract or agreement entered into between him and the A
master or owner or the ship. It was the enforcement or the right which was
sareguarded by providing a remedy to arrest a ship ff the goods were carried
into any port. Same rationale applies to redress the owner or bill of lading
if the master of the ship in breach of agreement entered into any port
committed tort by acting against it in course of outward journey. Such
breach would have been actionable and a suit could be filed in the court
B
where agreement was entered. Basis of Maritime Law has been necessity to
provide remedy for wrong done on high seas. Inclusion or expansion of
jurisdiction was in relation to any cause which could have been cognisable
• under ordinary law. Bottomrey, salvage, seaman wages or towage are all
causes for which action could be brought in court of law but their enforce- C
men! was rendered illusory with disappearance of the person beyond ter-
ritorial waters. To overcome this dilliculty jurisdiction was created making
it actionable against person and finally the res itself. What was basic was
the existence of cause of action, arising out of tort or contract in relation to
the master or owner of the ship. Applying this test, the cause of action arose D
in Indian territory and if the owner of the ship would have remained in this
country a suit for breach of contract could have been filed. Therefore the
owner of bill of lading was not precluded from approaching the Admiralty
Court for redress when the foreign ship which was guilty ·Of violations
appeared in Indian waters. On this construction the colonial courts could
exercise the jurisdiction in respect of cargo going outside the port in exercise E
of jurisdiction under the Act of 1890 not on statutes but as the High Court
of England could exercise such power. [1067F-H; 1068A-D)

Yuri Mani; 1927 Appeal cases 906, distinguished.

State of Madras v. CC.Menon & Ors., [1955) I SCR 280, referred to. F

The Bold Buccleugh. (1851] 7 Moo. P.C. 267: The Hailey, L.R. 2 PC
193; The Ironsides, 167 English Reports 205; T11e St. Cloud, 167 English
Reports 269; Tlze Nonvay, 167 English Reports 347; The Hercules, 2 Dod.
371; Tlie Jade, [1976] I All Eng. Reports 921, referred to.
G
Halsbury's Laws of England, 4th Ed., Vol. I: Maritime Liens by
• D.R.Thomas; Maritime Law by Christopher Hill; Carter History of English
Courts, referred to.

r 2. Without entering into any comparative study ofjurisdiction of High H
1016 SUPREME COURT REPORTS [1992] 1 S.C.R.

A court of England and the High Courts in our country, the one basic dif-
f~rence that exists today is that the English Courts derive their creation,
constitution and jurisdiction from Administration of Justice Act or
Supreme Court Act but the High Courts in our country are established
under the Constitution. Under it, Article 225 preserved the jurisdiction,
including inherent jurisdiction, which existed on the date the Constitution
B
came into force and Article 226 enlarged it by making it not only a custodian
of fundamental rights ofa citizen but as repository of power to reach its arms
to do justice. A citizen carrying on business which is fundamental right
cannot be rendered helpless on premise that the jurisdiction of High Courts
stood frozen either under statute of England or any custom or practice
c prevailing there or the High Court of England cannot exercise the jurisdic-
tion. A citizen of an independent republic cannot be left high and dry. The
construction of law has to be in consonance with sovereignty of a state. The
apprehension that assumption of such jurisdiction would be on general
attributes of sovereignty is not well founded. This coupled with expansive
D jurisdiction that the High Courts enjoyed in relation to Admiralty under the
1890 Act preserved under Article 225 of the Constitution provided justifica-
tion for direction to arrest the ship, for the tortious act done by master or
owner of the ship in respect of goods carried outside the port even if there was
no specific provision like Section 6 ol' the 1861 Act. Entertaining a claim
arising out of breach of contract in relation to cargo taken out of any Indian
E port pertains to jurisdiction. It must arise out of Statute. But the power to
direct arrest of a ship in exercise of .the jursidiction is one relating to
competency. The High .Courts in India being courts of unlimited jurisdic-
tion, repository of all judicial powers under the Constitution except what is
excluded are competent to issue directions for arrest of foreign ship in
F exercise of statutory jurisdiction or even otherwise to effectuate the exercise
of jurisdiction. [l069F-H; 1070A-F)

3. In the instant case, since the jurisdiction to entertain a suit on
tort or contract in relation to cargo going out of the country in a ship is
found to exist under 1890 Act, the High Court of Andhra Pradesh was
..
G competent to direct arrest of the foreign ship when it appeared in Indian
waters. [1070F-G]

4. In respect of Colonial Courts of Admiralty Act the Law Commis-
sion recommended that the necessary substantive provisions of the
H English Statute may be incorporated into the Act so as to make it the
ELISABETH"· HAR WAN INVESTMENT [THOMMEN, J.] 1017

comprehensive Indian law relating to courts of admiralty. Neither the law A
was made up-to- date and brought in line with international conventions
on maritime law passed in 1952 etc. nor even the salient features of
English law as amended by Administration of Justice Act, 1920, and 1956
were adopted. And rights and interests of citizen of the independent
sovereign state continue lo be governed by legislations enacted for colonies
by the British Parliament. Various provisions in the 1890 Act have been
B
rendered not only a_nomalous but even derogatory to the sovereignty of the
State. It is hoped that the unfortunate state of affairs shall be brought to
end at the earliest. [1062E-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 896of1992.. C
WITH
T.C. No. 27 of 1987,

From the Judgment and Order dated 26.4.1985 of the Andhra
Pradesh High Court in 0.S. Appeal No. 2 of 1984. D
Raju Ramachandran and Jagan Mohan Rao for the Appellants.
G.L. Sanghi, S.K. Mehta, Dhruv Mehta, Aman Vachher and Arvind
Verma for the Respondents.

The Judgment of the Court was delivered by E
TH OMMEN, J. We grant leave in SLP(C) No. 10542 of 1985 which
arises from the order of the Division Bench of the Andhra Pradesh High
Court affirming the finding of the learned Single Judge that the
respondent's suit against the appellants was maintainable and that the High
Court was competent to try the same in exercise of its admiralty jurisdic- F
r lion. The Transferred Case No. 27 of 1987 is the appeal filed by defen-
dants 1 and 2 against the judgment of the learned Single Judge of the
Andhra Pradesh High Court decreeing the suit. The case stood trans-
ferred to this Court pursuant to this Court's Order dated 25.11.1986.

By our Order dated August 28, 1991 we allowed Civil Appeal No.
G
3392 of 1991 filed by the 3rd defendant against the order of the High Court
dismissing its petition for condonation of delay in presenting O.S.A.S.R.
No. 39789 of 1988 in the High Court. We held that the appeal filed by the
3rd defendant had to be heard on the merits particularly on the question
r of law regarding the liability of the agent. H
1018 SUPREME COURT REPORTS [1992] 1 S.C.R.

A We shall now deal with the appeal arising from SLP (C) No. 10542
of 1985 where the only question is whether the learned Judges of the l:ligh
Court have rightly held that the respondent's suit was maintainable in
respect'of a cause of action alleged to have arisen on or after 1.2.1984 when
the vessel, M.V. Elisabeth, was lying in the Port of Marmagao;·on 8.2.1984
when the vessel left the Port without issuing bills of lading or other
B
documents for the goods shipped as required by the plaintiff-shipper; and,
subsequently when the goods were discharged and handed over to the
consignee at the p~rt of destination at Ras-Al-Khaimah, United Arab
Emirates during the period from 13.2.84 to 19.2.84, notwithstanding the
direction of the plaintiff not to deliver the goods by reason of the buyer's
c failure to pay the agreed price. The 1st defendant, M. V. Elisabeth, is a
vessel of foreign nationality and it is owned by the 2nd defendant which is
a foreign company carrying on business in Greece, and the 3rd defendant
is stated to be the local agent of the 2nd defendant at Goa.

The Plaintiff is a private limited company having its registered office
D
in Goa. The case of the plaintiff is that the defendants acted in "breach
of duty" by leaving the port of Marmagao on 8.2.84 and delivering the goods
to the consignee in. breach of the plaintiffs directions to the contrary,
thereby committing conversion of the goods entrusted with them. The suit
was instituted in Andhra Pradesh High Court invoking its admiralty juris-
E diction by means of an action in reni. The vessel was arrested when it
entered the Port of Vishakhapatnam on 13.4.84 after returning from foreign
ports. On the owner of the vessel entering appearance and providing
security by furnishing a Bank Guarantee under protest in the sum of Rs.
14,25,000 the vessel was released from detention.
F
The defendants moved an application in the High Court raising a -1
preliminary objection to the jurisdiction of that Court. They contended •
that the plaintiffs suit against a foreign ship owned by a foreign company
not having a place of residence or business in India was not liable to be ~
proceeded against on the admiralty side of the High Court by an action in
G rem in respect of a 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. They did not, however, contend that the alleged
cause of action not having arisen in Andhra Pradesh. the suit ought not to
have been filed in Andhra Pradesh. Their sole contention on the question
H of jurisdiction was as regards the lack of admiralty jurisdiction of any court ·1
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.) 1019

in' Andhra Pradesh or any other State in India to proceed in rem against. A
the ship on th.e alleged cause of action concerning carriage of goods from
an Indian port to a foreign port. The preliminary objection was overruled
by the learned Single Ju.dge and his order was confirmed by the learned
Judges of the Division Bench by their order which is challenged in
S.L.P.(C) No.10542 of 1985. The suit was finally decreed by I he learned . B
Single Judge and appeal therefrom is the subject-matter of the case· trans-
ferred to this Court.

The crucial question for our consideration is, thcrcfo.rc, the dispul.c
about jurisdiction. If that question were to be answered in favour of the
defendants, it would be unnecessary to express any \1cw on the merits of · C
·the Tmnsferred Case, for the.· suit itself would then stand dismissed.

Mr. Raju Ramachandran, appearing for the appellants (defendants),
raises a fundamental objection as to the assumption of admiralty jurisdic-
tion over a ·foreign ship in respect of a claim ·arising in connection with the D
carriage of,goods from an Indian port to a .p\lTt outside lnd.ia. The High
. Court, h_c says, oidered the arrest ci( the vCssel in purported_ exercise of
its jurisdiction Qn. the admiralty. side. The power of the High Court on the
admiralty side. is, 'however, ~on.tainC<:f i_n ..an<l-confincd to .th_e provisions of .
the Admiralty Court Act, 1861 (24 & 25 Vict<iriac, Ch. lO) made applicahk ·
to India by .the Colonial Courts of Admiralty Act; 1890 (53 & 54 Victoriac) E
(which·are Acts of the British Parliament) read with the Colonial Courts
of Admiralty. (India) ·Act, 1891 (Act No. 16 of 1891) declaring cfrtain
·Indian Cllurls of unlimiied civil jurisdiction as colonial. courts-of admiralty
and. declaring· the !iigh .Court of ·Judit:ature at" Madras as ~ne of. such
.courts. Mr: Ramachandran does not .dispute that by reason ofthe Andhra F
)
State Act, 1953, and the States Re-organisation Act, 1956 read· with the
, Governm~nt of India.Act\, 1915 and 19J:j and the .Constitution of India,
the High Co~rt of Andhra Pradegh. has, like .tlie High Courts of Madras, ·
Bombay and Calcutta, such admiralty jurisdicti<m as .was granied hy the
. British Slatut>s referred to above. But that jurisdiction, counsel says, was
ncit wide~ than what was $ranted ~ilder the British Statutes. The exte~t of .G.
admiraliy jurisdiction. and the judicial power peculiar-to .t!iat jurisdiction,
as conferred on . the Indian
. High Courts, remained
~ ·. frozen
. as on. the date ·
of the Admiralty Court Act, 1861. T.he wider powers assumed· by the ....
..Britisb Courts under the subsequent statutes of that country did not enlarge .·
.the ac\miralty jurbdiction of the Indian High Courts. -.In the absence of any . H
1020 SUPREME COURT REPORTS (1992] 1 S.C.R.

A subsequent British or Indian statute widening the admiralty jurisdiction of
the Indian High Courts, the jurisdiction of the Andhra Pradesh High Court
over a foreign ship by means of an action in rem does not extend to any
matter falling outside the Admiralty Court Act, 1861. The only provision
of that Act respecting cargo is what is contained in Section 6 which is
confined to goods 'carried into any Port in England or Wales m any
B
Ship .... .' Applying that provision to India by reason of the statutes referred
to above, the Indian High Court exercising admiralty jurisdiction has no
power to deal with any claim concerning outward cargo because Section 6
is confined to inward cargo. The plaintiffs case is founded on certain facts
which clearly fall outside the ambit of Section 6 of the Admiralty Court
c Act, 1861. Consequently , the arrest of the vessel in purported excrdse
of admiralty jurisdiction in reni, concerning. a claim relating to out\vard
cargo, was null and void and of no effect. This argument, supported as it
is by considerable scholarly research on the part of counsel, amounts to an
invocation to admit incompetence and disability on the part of the Indian
D .Judicial System to render justice for want of legislative grant of power.
Counsel is fortified in his submission by certain decisions of Calcutta,
Bomb.ay and other High Courts.

Mr. G.L. Sanghi, appearing for the respondent-plaintiff, on the other
hand, submits that the impugned judgment of the High Court is sound and
E correct and requires no interference by this Court because what the High
Court has stated is based on a realistic appreciation of the need for liberal
construction of the statutes so as to support assumption of jurisdiction to
render justice where justice is required to be done rather than resorting to
a technical or narrow or pedantic construction resulting in a state of
F helplessness. Counsel says that every person has a right to approach the
Court of the land for appropriate remedy in. respect of claims against a 1
foreign ship and its owner, and to deny him that right and to compel him
to pursue remedy in a foreign country according to an unfamiliar system
of law and practice in strange and uncertain conditions, and consequently
incurring high expenses with all the uncertainties of such a pursuit, is unjust
G and uncalled for. All major systems of law the world over recognise the
competence of the coastal State to assume jurisdiction over a foreign ship
entering its waters in respect of certain well recqgnised claims, irrespective
of where the cause of action arose or where the defendant has his place of
residence or business. The reason for this ~de t·xt·rcise of jurisdiction is
H that the foreign owner being not available within iµrisdiction, and the stay 'I'
ELISABETH v. HARWAN INVESTMENT [THOMMl:N, !.] 1021
.J

of the foreign ship in the waters of the coastal Slate being necessarily brief, A
jurisdiction over the ship has lo be exercised by its arrest and detention by
means of an action in rem. Counsel submits that the High Court being a
Court of record with unlimited jurisdiction, it was never intended by the
British Parliament that the admiralty power conferred on certain High
Courts should remain frozen as on the date of the passing of the· Admirall y
Court Act, 1861 and the subsequent changes in the law of Great Britain
B
should not widen the jurisdiction of the Indian High Courts. In any case,
counsel submits, the colonial statutes should not he so construed as lo
stand in the way of the Indian High Courts exercising unlimited jurisdiction
-... cXcept where the jurisdiction is harrcd expressly \11 tiy necessary implica-
tion. In the absence of any such bar, the powers of the High Court arc C
unlimited and there is no merit in the preliminary objection to the juris-
diction of the High Court.

The Andhra Pradesh High Court is the successor to the Madras High
Court in respect of the territories transferred from Madras and included
in the State of Andhra which was formed by the Andhra Stale Act, 1953 D
(Act 30 of 1953). Vishakhapatnam is one , ' the areas so included in the
State of Andhra. Section 30 of this Act provides :

"30. Jurisdiction of Andhra Hi[:h Court -The High Court of
Andhra shall have, in respect of the territories for the time E
being included in the State of Andhra, all such original, appel-
late and other jurisdiction as, under the law in force in1medi-
atcly before the prescribed day, is exercisable in respect of the
said territories or any part thereof by the High Court at
Madras."
F
> The High Court of Andhra was redesignated as the High Court of
Andhra Pradesh when the State was so named by the States Re-organisa-
tion Act, 1956. Section 52 of that Act provides :

"52. Jurisdiction of High Courts for new States. - The High Court
for a new State shall have, m respect of any part of the G
territories included in that new State, all such original, appellate
and other jurisdiction as, under the law in force immediately
before the appointed day, is exercisable in respect of tha •art
of the said territories by any High Court or Judicial
r Commissioner's Court for an existing ~late.'' H
10!2 SUPREME COURT REPORTS [1992] 1 S.C.R.

A In the port of Vishakhapatnam the Andhra Pradesh High Court has
thus the same jurisdiction as was vested in the Madras High Court prior
tn the transfer of that territory. '!The question is as regards the extent and
·nal ure of that jurisdiction.

The powers of the Madras High Court are traceable to the Admiralty
B Court Act, rn61 (24 & 25 Victoriae c. 104) by reason of the Letters Patent
of IX<i5 read with the Colonial Courts of Admiralty Act, 1890 and the
Colonial Courts of Admiralty (India) Act, 1891. By the last two Acts, the
Madras High Court was invest.ed with the-same admiralty jurisdiction as
was vest<:d in the High Court of England. The Letters Patent of 1865 f
C declared Lhal·lhc High Court of Madras would and continue to be a court
of n:cord and that it would exercise ordinary, original and civil jurisdiction
within its local limits lo try and determine suits. The Government of India
Acl, 1915 declared that alrthc High Courts established by Letters Patent
were courts of record and had such original ·and appellate jurisdiction
D including admiralty jurisdiction as had been vested in them by Letters
. Patent. The Government of India Act, 1935 declared that 'every High
Court shall be a court of record' and that its jurisdiction, the law ad-
ministered by it and the powers of the judges were the same as immediately.
before the commc~ccment. of.Pari Ill of that Act .(sections 220 and 223).
Article 225. of the ~onstitution of India declares:
E
"... the jurisdiction of, and the law administe,rcd in, any existing
High Court, and the respective .powers o.f the Judges thereof
in relation to the administration of justice in the Court, includ, .
.ing any polver to make rules of (:ourt and to regulate the sittings
of ·the Court and of members thereof sining alone o; in Division
F Courts, shall be the same as immediately before the co~men
cement pf this Constitution : ·

Provided ............... :............. •

G ·. Article 215 says :

"Every High Court shall be a .court of record and shall have all
the power:s of such a ~ourt including the powcno punish for
contempt of itself."

H In a number of decisions of the Calcutta and Bombay High Couhs,
ELISABETH v. HARWAN INVES1MENT [THOMMEN, J.] 1023

the admiralty jurisdiction of the High Courts in India has been historically A
traced to the Charters of 1774 and 1798, as subsequently expanded and
clarified by the Letters Patent of 1823, 1862 and 1865 read with the
Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890,
and the Colonial Court of Admiralty (India) Act, 1891 and preserved by
section 106 of the Government of India Act, 1915, section 223 of the B
Government of India Act, 1935 and Article 225 of the Constitution of India.
The pre-Constitution enactments have continued to remain in force in
India as existing laws : See section 18 of the Indian Independence Act,
1947, and Article 372 of the Constitution of India. See Kamalakar
Mahader Bhagat v. Sci11dia Steam Navigation Co. Ltd., AIR 1961 Bombay
186; Mrs. Sahida Ismail v. Petko R. Salvejkov & Ors., AIR 1973 Bombay 18; C
Jayaswa/ Shipping Company v. 'S.S. Leelarati', AIR 1954 Calcutta 415;
Rzmgta Sons Pvt. Ltd. & Anr. v. S.S. 'Edison Mari11er' & A11r., 1961-62 {66)
Calcutta Weekly Notes 1083 and Smt. Reena Pad/ii v. 'Jagdhir', AIR 1982
Orissa 57. The view taken in these decisions is that the admiralty jurisdic-
tion of the High Court in India does not extend beyond the ambit of the D
provisions of the (English) Admiralty Court Act, l861. Further expansion
of the jurisdiction of the English High Court under various statutes did not
expand the jurisdiction of the Indian High Courts. This means, no High
Court in India has jurisdiction to order the arrest and detention of a foreign
ship in an action in rent in respect of a cause of action relating to outward
cargo, as distinguished f:om inward cargo. E

The rationale of these decisions is that the chartered High Courts in
India are Colonial Courts of Admiralty.under Act 16 of 1891 exercising the
same jurisdiction as was vested in the High Court of Admiralty in England
under the Admiralty Court Act, 1861, and the subsequent merger of the F
>· English High Court of Admiralty with the English High Court of Justice
in 1875 and the expansion of jurisdiction of that High Court under sub-
sequent statutes did .not expand lhe admiralty power of the Indian High
Court or merge it with its ordinary original civil jurisdiction. P.B. Mukhar-
ji, J. of the Calcutta High Court in Jayaswa/ Shipping Compa11y v. 'S.S.
Lee/avati', AIR 1954 Cal. 415, 421, highlights this aspect thus : G

"... Courts of Admiralty are courts of specific jurisdiction and if
a controversy does not come within their specific jurisdiction,
they cannot entertain it, and in that respect are unlike the courts
r of residuary jurisdiction such as the Common Law Courts or H
1024 SUPREME COURT REPORTS /1992] 1 S.C.R.

A in India the Courts of ordinary original civil jurisdiction."

In National Co. Ltd. v. Asia Mariner, 72 CWN 635, 647, S.K. Muk-
herjea, J. of the Calcutta High Court states :

'·
"The High Court at Calcutta as a Court of Admiralty is, there-
B fore, a Court of prescribed jurisdiction. Its jurisdiction is
prescribed by clause 26 of the Charter of 1774 and by section
2(2) of the Colonial Courts of Admiralty Act, 1890. The
jurisdiction has not been extended or modified by any statute.
1
None of the subsequent British statutes by which the Admiralty
c Jurisdiction of the High Court in England has been extended
or affected have been made applicable to India."

The High Court as a Court of Admiralty is thus treated as " separate
entity exercising a distinct and specific or prescribed or limited jurisdiction.
D This reasoning is based on the assumption that the continuance in force of
the Colonial Courts of Admiralty Act, 1890 as an existing law carves out a
distinct jurisdiction of the High Court limited in ambit and efficacy to what
has been granted by the Admiralty Court Act, 1861, and that jurisdiction
has remained stultified ever since. This restrictive construction is, in our
view, not warranted by the provisions of the Constitution. The fact that
E the High Court continues to enjoy the same jurisdiction as it had immedi-
ately before the commencement of the Constitution, as stated in Article
225, does not mean that a matter which is covered by the Admiralty Court
Act, 1861 cannot be otherwise dealt with by the High Court, subject to its
own Rules, in exercise of its manifold jurisdiction, which is, unless barred,
F unlimited. To the extent not barred expressly o~ by necessary im_plication,
the judicial sovereignity of this country is manifested in the jurisdiction
,
(

vested in the High Courts as superior courts.

S.K. Mukherjea, J., however, continues (ibid, para 94) :

G "The Admiralty Court Act, 1861, although repealed in part in
· relation to Englanq,,.nd Wales, remains in force in India. None
of the subsequent English statutes relating to Admiralty juris-
diction over cargo claims or contract of carriage have been
made applicable to the High Courts in India exercising juris-
H diction in Adm.iralty.n
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.] 1025
.,
A similar view is echoed in other decisions on the point. In A
Kama/akar Mahadev Bhagat v. Scindia Steam Navigation co. Ltd., AIR
')
1961 Bombay 186, a learned Judge of the Bombay Higb Court stated :

"......It will thus be seen that the Higb Court of judicature at
Bombay in particular being one of the Colonial Courts of B
Admiralty under . Act 16 of 1891 today exercises the same
admiralty jurisdiction as was exercised by the High Court of
Admiralty in England in 1890 when the Colonial Courts of
Admiralty Act was passed by the British Parliament. We have,
therefore, to examine and ascertain as to what was the scope
and nature of jurisdiction of the 'High Court of Admiralty in C
England either under any statute or otherwise in the year 1890,
because,' it would be just that jurisdiction which is exercisable
by the High Court of Judicature at Bombay down to date." (p.
190)
D
With respect we disagree. All this is reminiscent of a bygone age. The
learned Judge failed to take note of the fact that in 1890 the Court of Ad-
miralty had ceased to be a separate and distinct institution. By the Judicature
Act of 1873, the Higb Court of Admiralty was merged with the High Court
of Justice. It is, however, true that the substantive powers in admiralty mat-
ters were derived from the Admiralty Court Act, 1861, and those powers E
were not widened until 1920. The learned Judge further observes:

".... In my opinion, therefore, the present suit falls within the
exclusive Admiralty jurisdiction of the High Court and could
not have been filed on the Ordinary Original Side of the High F
Court, much less in ·the City Civil Court. In this view of the
matter, I am unable to agree with the view expressed by the
learned Principal Judge of the City Civil Court that actions in
personam used to be entertained in the Common Law Courts
in England in respect of damage done by a ship on the high
seas and that even at present in England it is open to a suitor G
to file an action in personam in the King's Bench Division in
respect thereof. In my opinion, no such action ever lay in the
Common Law Courts of England, nor can it ever lie in the
Queen's Bench Division of the High Court of England at the
T present time.:.~". (p.200 ibid.) H
1026 SUPREME COURT REPORTS [1992] i S.C.R.

A All this observation, as we shall presently see, is inconsistent with the !
true character of the constitution of the courts in England and the powers
exercised by them consequent upon the statutory changes between 1873
and 1981.

It is true that the Colonial statutes continue to remain in force by
B reason of Article 372 of the Constitution of India, but that does not stultify
the growth of law or blinker its vision or fetter its arms.· Legislation has
always marched behind time, but it is the duty of the Court to expound
and fashion the law for the present and the future to meet the ends of.
justice.
c We do not accept the reasoning of the High Courts in the decisions
cited above on the question of jurisdiction, whatever be the correctness of
their decisions on the peculiar facts of those cases in regard to which we
express no view. But the narrow view adopted in those decisions on the
source and ambit of the admiralty jurisdiction of the High Courts is, in our
D opinion, not warranted.

Mr. Ramachandran has laid much stress on the decision of the Privy
Council in .lhe Yuri Mdrn v. 17te Woron, 1927 AC 906, which was relied
on by the Bombay High Court in Mrs. Sahida Ismail (supra) to come to
the conclusion, which it did, as to the lack of jurisdiction of the Indian
E
High Courts to go beyond what was permiited by the Colonial Courts of
Admiralty Act, 1890.

Before we deal with the decision of the Privy Council, it is important
to notice that the Colonial Courts of Admiralty were vested with the.same
F admiralty jurisdiction which was vested in the High Court of England
'whether existing by virtue of any statute or otherwise' and they were i
entitled to exercise the same jurisdiction in like manner and to the same '
extent as the High Court in England. We shall now read the· provisions of
the Colonial Courts of Admiralty Act, 1890, so far as they are· material.

G "2. (1). Colonial Courts of Admiralty - Every Court of law in
a British possession, which is for the time being declared in
pursuance of this Act to be a -court of Admiralty, or which, if
no such declaration is in force in the possession, has therein
original unlimited civil jurisdiction, shall be a court of Admiral-
H ty, with the jurisdiction in this Act mentioned, and may for the
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.] 1027

purpose of that jurisdiction exercise all the powers which it A
possesses for the purpose of its other civil jurisdiction, and such
court in reference to the jurisdiction conferred by this Act is
in this Act referred to as a Colonial Court of Admiralty

(2) The jurisdiction of a Colonial Court of Admiralty shall, B
subject to the provisions of this Act, be over the like places,
persons, matters, and things, as the Admiralty jurisdiction of the
·High Court in England, whether exisiting by virtue of any statute
or otherwise, and the Colonial Court of Admiralty may exercise
such jurisdiction in like manner and to as full an e,rtent as the C
High Court in England, and shall have the same regard as that
Court to international law and the comity of nations.

(3) ..................................................................................

Provided as follows : D

(a) Any enactment in an Act of the Imperial Parliament
referring to the Admiralty jurisdiction of the High. Court in
England, when applied to a Colonial Court of Admiralty iri a
British possession, shall be read as if the name of that. posses-
sion were therein substituted for England and Wales; and ......." E
(emphasis supplied)

These provisions show that the admiralty jurisdiction conferred on the
Colonial Courts of Admiralty was identical to that of the High Court in
England. The Colonial Courts of Admiralty were, in relation to their F
respective territories, invested with the same jurisdiction "over places,
persons, matters and things" as in the case of the English High Cotfrt in
respect of England and Wales. This jurisdiction was derived from the
statutes which then existed in England - namely, the Admiralty· Court .
Acts of 1840 and 1861, as well as from other sources such as custom and
practice as recognised by ihe Courts exercising admiralty jurisdiction. This G
is clear from the words "whether existing by virtue of any statute or
otherwise~. The proviso makes the position even clearer. What the
Colonial Courts of Admiralty Act, 1890 did wa~ not to incorporate any
particular English Statute into Indian law for the purpose of ,,conferring
admiralty jurisdiction, but to assimilate the competent courts in India to H
1028 SUPREME COURT REPORTS [1992] 1 S.C.R.

A the position of the English High Court in the exercise of admiralty
jurisdiction. It would, therefore, appear that any expansion of Admiralty
• jurisdiction of the High Court in England was intended likewise to expand
the jurisdiction of the. Colonial Court of Admiralty. This should have been
regarded as the position with respect to a Colonial Court of unlimited
jurisdiction.
B
Section 3 of this Act provides :

'(3) ·- The legislature of a British possession may by any
Colonial law -

c (a) declare any court of unlimited civil jurisdiction, whether
original or appellate, in that possession to be a Colonial
Court of Admiralty.... "

(b) confer upon any inferior or subordinate co.urt in. that
possession such partial or limited Admiralty jurisdiction •
D under such regulations and with such appeal (if any) as
may seem fit:

Provided that any such Colonial law shall not confer
any jurisdiction which is not by this Act conferred upon
E a C11Ionial Court of Admiralty." ·
Section 3 thus draws a distinction between courts of unlimited jurisdiction
falling under clause· (a) and courts of limited jurisdiction falling under
clause (b). The admiralty jurisdiction of the former was wider than that
which was conferred on the latter.
F Section 7 roofers power to \Dake rules of ·court to regulate the
procedure and practice of the court in the exercise of its admiralty juris-
dictiore This section provides·:-
'S.7. (1) Rules of court for regulating the procedure and prac-
ctice (including fees and costs) in a court in a British possession
G in the exercise of the jurisdiction conferred by this Act, whether
original or appell~te, may be made by the same authority and
in the same manner as rules touching the practice, procedure,
fees, and costs in the said court in the exercise of its ordinary
civil jurisdiction respectively are made. -

H
ELISABETH"· HAR WAN INVESTMENT [THOMMEN, J.] 1029
i
(2, A

{3) Such rules may provide for the exercise of any jurisdiction
conferred by this Act hy the full court, or by any judge or judges
thereof, and subject to any rules, where the ordinary civil
jurisdiction of the court can in any case be exercised by a single
judge, any jurisdiction conferred by this Act may in th·e like B
case be exercised by a single judge.".

By virtue of this provision, admiralty rules were made for Calcutta
and Bombay High Courts. The Madras High Court adopted admiralty
rules by virtue of the powers conferred by the Letters Patent of the High C
Court and the Government of India Act, 1915.

By Act 16 of 1891, certain courts in British India were declared to
be Colonial Courts of Admiralty. Tlll' High Courts of Judicature at Fort
William in Bengal, at Madras 'and at Bombay were three of the six Courts
declared to be Colonial Courts of Admiralty.* The preamble to this Act, D
in so declaring, stated:-

"WHEREAS it is provided by the Colonial Courts of Admiral-
ty Act, 1890, that the Legislature of a British possession may
by any colonial law declare· any Court of unlimited civil juris- E
diction in that possession to be a Colonial Court of Admiralty;

It was because ofthe unlimited civil jurisdiction that was already vested
in these High Courts that they were declared to be Colonial Courts of Ad- F
• miralty having the same jurisdiction in extent and quality as was vested.in the
High Court of England by virute of any statute or custom. The High Courts
were declared to be competent to regulate their pr,ocedure and praotice in
exercise of admiralty jurisdiction in accordance with the Rules made in that
behalf. There is, therefore, neither reason nor logic in imposing a fetter on G
the jurisdiction of these High Courts by limiting it to the provisions of an
imperial statute of 1861 and freezing any further growth of jurisdiction. This
is all the more true because the Admiralty Court Act, 1861 was in substance
repealed in England a long time ago. See Ha/sbury's Laws ofEngland 4th ed.
(1) The other Courts are: (a) The Court of the Recorder of Rangoon (b) The Court of
the Resident at Aden (c) The District Court of Karachi .• H
1030 SUPREME COURT REPORTS [1992) 1 S.C.R.

A Vol. l(l), para 307; Ha/sbury's Statutes of E11gla11d, Vol. I, p.9.

Assuming that the admiralty powers of the High Courts in India are
limited .to what had been derived from the Colonial Courts of Admiralty Act,
1890, that Act, having equated certain Indian High Courts to the 1-!igh Court
of England in regard to admiralty jurisdiction, must be considered to have ·-,
B conferred on the former all such powers which the latter enjoyed in 1890 and
thereafter during the period preceding the Indian Independence Act, 1947.
What the Act of 1890 did was, as stated earlier, not to incorporate any English
statute into Indian Jaw, but to equate the admiralty jurisdiction of the Indian
High Courts over places, persons, matters and things to that of the English
c High Court. As the admiralty jurisdiction of the English High Courts ex-
panded with the progress of legislation, and with the repeal of the earlier
statutes, including in substance the Admiralty Court Acts of 1840 and 1861,
it would have been reasonable and rational to attribute to the Indian High
Courts a corresponding growth and expansion of admiralty jurisdiction
during the pre-independence era. But a restrictive view was taken on the
D question in the decisions of the High Courts cited above.

There is no reason why the jurisdiction of the Indian High Courts
should have been considered to have frozen and atrophied on the date of the
Colonial Courts of Admiralty Act, 1890. If this had not been considered to
E have happened, and a liberal construction had been adopted by courts, the
admiralty jurisdiction of the High Court would in any case have been con-
sidered to have progressed up to the level of the English Administration of
Justice Act, 1928, which was the last of a series of enactments in England on
the subject prior to 1947, and consequently the Indian High Court would
have been treated as ·a consolidated court on the basis of the (English)
F Supreme Court of Judicature (Consolidation) Act, 1925, exercising identical ;
and unlimited jurisdiction, and not a distinct or 'prescribed' admiralty juris-
. diction, limited and confined to the Admiralty Court Act, 1861, as it is now
treated to be by some of the High Courts in the decisions cited above. All
this is perhaps the result of the reasoning in the decision of the Privy Council
G in 77ze Yuri Maru v. The War01~ 1927 AC 906.

The Yuri Maru· which arose from Canada concerned the jurisdiction
of the Exchequer Court. The decision is summarised in the head note as
follows:

H "The effect of s. 2, sub-s. 2, of the Colonial Courts of Admiralty
ELISABETH"· HAR WAN INVESTMENT [THOMMEN, J.] 1031

i
Act, 1890 {Imp.) is to limit the jurisdiction of Colonial Courts A
of Admiralty established under the Act to the Admiralty juris-
diction of the High Court of England, as it existed at the passing
of the Act; the extension of the Admiralty judsdiction qf the
High Court by the Administration of Justi\:e Act, 1920 {Imp.),
s. 22, repealed and re-enacted by the Supreme Court of J udica-
ture (Consolidation) Act; 1925 (Imp.), s. 22, does not apply to
B.
Colonial Courts of Admiralty.

. Consequently, the Exchequer Court of .Canada, which was
i' establishc,\ by the ·Admiralty Act (R.S. Can., 1906, c.141) as a
Colonial Court of Admiralty; has not, under s: 22, sub-s. l(xii.),. C
of the above Imperial. Act of 1925, jurisdiction i11 rem to try an
action for damages for breach of a charterparty.

·The Privy Council. thus rejected the contention that the jurisdiction D
of the Canadian Court of Admiralty was automatically extended .with the
progress of k:gislation in England widening the admiralty jurisdiCtionQf the
English High Court. Nevertheless, the Privy Council significantly left it to
the Canadian .legislature.'fo pass aPJ>ropriate laws (or widening the juris-
. diction of the Canadian Courts. Speaking for the.Board;Lord Merrivalc
.E
· concluded :- ·

"Qn the whole; the true intent of the Act appears to their
Lordships to have been to define. as a maximum.of jurisdK;tional
authority for the Courts to set up thereunder, the Admiralty .
jurisdiction of the High Couri in England as it existed at the time F
when the Act passed. · What shall from tim~. to time be added or
excluded is left for independent legislative determination".

· The Exchequer Couri ofCanada wa.' established by the Admiralty Act
R.S. ·c.anada, 1906. 141, as a Colonial C~urt of Admiralty. It is not clear
whether. that Court was in its jurisdiction comparable to the Indian. High G
Courts. ·Assuming tlfat it was comparable at the rdevant time, and whatever.
be the relevance of 77re Yi1ri Mani (supra). to C!l1lrts like the Exchequer Court
of i:anada, we sec no reason why the jurisdiction of the Indian High Courts,·
govcn1~d as they now arc hy the Constitution l)f India, ~h(luld in any way he

r subjctted l_o the jurisdictional r~ucrs in1poscJ by th..:: Pri\Y Council in fh;.1r H
1032 SUPREME COURT REPORT~ [1992] 1 S.C.R.

A decision. Legal history is good guidance for the future, but to surrender to
the former is to lose the latter.

A short account of the English statutes on admiralty jurisdiction and
the power exercised by the English Courts over foreign ships will be helpful
in understanding the nature and cxl<'nt of the admiralty jurisdiction of the
B Indian Courts. We shall, therefore, briefly discuss the salient features of
the admiralty jurisdiction of the English Courts.

The customs and practices of the commercial and maritime courts and
the Law Merchant administered by them and the jurisdiction assumed by the
c Admiral over ships and things at sea and the conflict which arose between
the Court presided ewer by him and the common law and equity courts
leading to curtailment of'the powers of the Admiral and ultimately resulting
in consolidation of all the courts by the Supreme Cour: of Judicature Act,
1873 (which came into force in 1875) arc vividly described by eminent
Scholars of English legal history and maritime law. Sec Holdsworth's A
D
History of English Law, Volumes I, 5 and 8; Roscoe'sAdmira/ty Practice, 5th
ed.; Marsden: Select Pleas of the ('ourt of Ad111iralty, Volumes I and II; La}\;'
and Custom of the Sea, ibid Volumes I and II; Benedict on Admiralty, 6th ed. <
{1940) Vol. I; Gilmore and Black, Law of Admiralty, 1957.

E The wide jurisdiction vested in the English Courts is derived from
ancient principles of Maritime Law developed by custom and practice as
well as from subsequent statutes many of which have incorporated the
provisions of International Conventions unifying the laws practised 10
several maritime countries. It is beyond the scope of this judgment to
F embark on a survey of maritime history except to notice that both the
Admiralty Court anda the Common Law Courts claimed jurisdiction over 1
cases governed by maritime law. Although adn1iralty Judges were. often
compelled to abandon jurisdiction l<> the Courts of Common Law in
various matters, maritin1c cases involving hypothccation~ salvage, torts com-
mitted on the high seas and the like, where the Common Law Courts could
G not give effective redress, were left to the jurisdiction of the admiralty
Judges. The admiralty had, however, 'fallen into a fe'cblc and neglected
condition and for long its proceedings excited no attention'. But in the
Eighteenth Century, the learning and ability of Lord Stowell 'raised the
Court t~ a position of the highest importance' (Roscoe's Adnziralty Practice,
H 5th ed. p. 14). ,
ELISABETH v. HAR WAN !NYE> IMENT [THOMMEN, J.] 1033

Jn the words of Holdsworth*, "Modern legislation has restored to the A
court of Admiralty many of the powers, and much of the jurisdiction of which
it had been deprived in the seventeenth century. .... But Admiralty law has
lost the international character which it once possessed. It is essentially
English Law. 'The law which is ad°ministered in the Ad;,,iralty Court of
England is the English maritime law. It is not the ordinary municipal law of
B·
the country, but it is the law which the English court Admiralty, either by Act
of Parliament or by reiterated decisions and traditions and principles, has
adopted as the English Maritime law'**, 'Neither the laws of the Rhodians,
nor of Olcron, nor of Visby, nor of the Hanse towns, are of themselves any
"J'·· part of the Admiralty law of England .... But they contain many principles and
statements of marine practice, which, together with principles found in the c
Digest, and in the French, and other Ordinances, were used by the judges of
the English court of Admiralty, when they were moulding and reducing to
form the principles and practice of their court'.***

The Admiralty Court Act, 1840 was the first of a series of statutes
D
extending and defining the jurisdiction of the High Court of Adnw ally in
England. This Act was followed by the Admiralty Court Act, 1861 confer-
ring larger powers upon the High Court of Admiralty. Section 6 of this
Act empowered the High Court of Admiralty to assume jurisdiction over
foreign ships in respect of claims to cargo carried into any port in England E
or Wales.**** Significantly, the Act did not apply to outward cargo.

.. A Hi!uory of Engl.ish Law, W.S. Holdsworth. \'OI. I. pp. 558-59.
The Gaetano and Maria, (1882) 7 PD at p. 143 .
.. ... The Gas Float H11iuon, N: 2 (1896) P. at pp . .t7. 48."
**** The section reads: F
' "6. As co Clailns /-Jr Datnage to Ca1gn i1nponed. - The High Court of Admir..dty shall
have Jurisdiction over any Claim by the O\.vner or Consignee or Assignee of any Bil!
of Lading of any Goods ca!Ticd i11io any Pon in England or Wales in any Ship. for
Damage done lo the Goods or any Part thereof by the Negligence or ~isconduct of
or for any Breach of Duty or Breach Of ContraCt on lhe Part of the Ch.11cr. \,faster. or
Crew of the Ship. unless it is shown to the Satisfaction of the Court that at the Time G
of the Institution of the Cause any Owner or Pa11 Owner of the Ship is domiciled in
England or Wales : Provided always. that if in any such Cause the Plaintiff do not
recover Twenty Pounds he shall not be entitled to any Costs. Charges. or Expenses
incurred by him therein. unless the Judge shall certif}' that the Cause was a fit one to
be tried in the said Court." (emphasis supplied)
Sec the observation of Dr. Lushington in the "Kasan~ (January 13. 1863) a:nd in the "Bahia~
r (April 21. 1863) English Report. Vol. 167. p. 268. 298. H
1034 SUPREME COURT REPORTS · (1992) 1 S.C.R.

A Section 7 of the Act, however, conferred jurisdiction on the High Court of
Admiralty "over any. claim for damage done ·by any ship". This Act was
followed by the Judicature Act of 1873, which came into force in 1875 and
which merged the High Court of Admiralty with the High Court of Justice
·resulting in a fusion of admiralty law, common law and equity. It is of
interest to note that. the provision contained in section 6 of the Admiralty
B C.ourt Act, 1861 limiting the jurisdiction of the Admiralty Court to claims
respecting inward cargo was discarded by the Administration of Justice
Act, 1920 which extended the jurisdiction of the High Court to (a) any
claim arising out of an agreement relating to the use or hire~of a ship; (b)
any claim relating to the carriage of goods in any ship, and (c) any claim
c in tort in respect. of goods carried. in any ship. The Act thus applie~ to
both inward. and outward cargoes.

The Admiralty Court Act, 1861 and the subsequent ·enactments were
consolidated by the Supreme Court of Judicature {Consolidation) Act, 1925.
D The admiralty Jurisdiction of the English High Court was redefined by this
Act to include various matters such as any claim 'for damage done by a ship";
any claim "arising out of an agreement relating to the use or hire of a ship";
or "relating to the carriage of goods in a ship"; or ''in tort in respect of goods
carried in a ship". This jurisdiction wa>, however, not available if"at the time
of the institutior of the proceedings any owner or:part owner of the.ship was .
.E domiciled in England" [See section 22 (1), (iv) and (vii)!. By the Administ(a·
tion of Justice Act, 1928, the jurisdiqian vested in, the High epurt by the
.Supreme Court of Judi.cature (Consolidation} Act, 1925· was4eclared to
belong·to ·au divisions of the High Court, The Admiralty Court was thus
empowered to entertain, apart from actions i11 rem., any claim. in perso;,µ111
F . which could be brought in any other. division ofthe High Court.
f
By the Admini~ration of Justice Act, 1956, the admiralty jurisdictio~
of the High Court was further widened and redefined so as io include not Ol}ly
the claims specified under section l(i) of Part ~·but also "any oth.er jurisdic- ...
tion which either was vestcd·in th.e High .Court of Admiralty immediately·
G before the daie of the commencement cif the Supreme Court of Judicature
Act, 1873 (i.e., i.11-.1875), or is conferred by or under an Act which came into
operation on or after that date on the High Cou'ft as being a court with
·.Admiralty jurisdiction and any other jurisdiction connected with ships or
aircraft vested in the High Court apart from this section which is f9r the time .
H being assigned by rules of ct1urt to the Probate, Divmcc ,and Admiralty
,.
ELISABETH v. HARWAN INVES1MENT (THOMMEN, J.] 1035

Division". Sub-section (4) of this section removed the restriction based on A
the ownership of the ship. It says that the jurisdiction applied to all ships or
aircraft, "whether British or not and whether registered or not and wherever
the residence or domicile of their owners may be" and "in relation to all
claims, wheresoever arising". The jurisdiction in regard to the questions or
claims specified under section l(i) includes "any claim for damage done by a
ship", "any claim for loss of or damage to goods carried in a ship", "any claim
B
arising out of any agreement relating to the carriage of goods in a ship or to
the use or hire of a ship" [See clauses ( d), (g) & (h) ].

! These claims are now specifically mentioned under clauses (e), (g)
and (h) respectively of section 20(2) of the Supreme Cotirt Act, 1981, c
amongst other claims, as falling under the .Admiralty jurisdiction of the
High Court. Part II of this Act is derived substantially from Part I of the
1956 Act which was enacted to give effect to the Brussels Convention of
1952 relating to the arrest of sea-going ships and the rules concerning civil
jurisdiction in matters of collision (Cmd 8954).
D
Section 20 of the Supreme Court Act, 1981 enumerates various ques~
tions and claims falling under the admiralty jurisdiction of the English High
Court. Apart from matters covered by the Merchant Shipping Acts 1894 to
1979 [referred to in sub-section (3) J and certain other matters, various ques-
lions and claims are enumerated in sub-section (2). They include: "any claim E
for loss of or damage to goods carried in a ship; any claim arising out of any
agreement relating to the carriage of goods in a ship or to the use or hire of
a ship; any claim for damage received by a ship; and any claim for damage
done by a ship.•
The specific questions and claims enumerated in sub-section (2) or section 20 of the F
Supreme Court Act, 1981 are:-
"(a) any claim to the possession or ownership of a ship or to the ownership of any
share therein;
(b) any question arising between the co-owners of a ship as to possession, employment
or earnings of that ship;
G
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage received by a ship;
(e) any claim for damage done by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any defect
in a ship or in her app·arel or equipment, or in consequence of the wrongful act,
~
neglect or default of· footnote contd. on next page H
}

•
1036 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Sub-section (7) of this section specifically provides that the admiralty r
jurisdiction of the High Court extends to "all ships or aircrafts, whether
British or not and wherever the residence or domicile of their owners may
be, and to all claims wherever arising". It reads:

"Sub-Section (7). The preceding provisions of this section
B
apply-

(a) in relation to all ships or aircraft, whether British or not
and wherever the residence or domicile of their owners· may be;

c (i) the owners, charterers or persons in possession or control of a ship; or

(ii) the master or crew of a ship. or any other person for whose wrpngful acts,
neglects or defaults the owners, charterers or pl'rsons 1n possession or control of
a ship are responsible,
being an act. neglect or default in the navigauon or management of the ship, in
the loading, carriage or discharge of good~ on. in or from the ship, or in the
D embarkation~ carriage or disembarkation of pe™'ns on, in or from the ship.

(g) any claim for loss of or damage to goods carried in a ship:

(h) any claim arising out of any agreement relating to the carriage of goods in a ship
or to the use or hire of a ship;

(i) any claim in the nature of salvage (including any claim arising by virtue of the
application. by or undersection51 of the Civil Aviation Act 1949, of the law relating
E to salvage to aircraft and their-apparel and cargo);

(j) any claim i9 the nature of towage in respect., of a ship or an aircraft;
(k) any claim in the nature of pilotage in respect of a ship or an aircraft;

(!) any Claim in respect of goods or materials. supplied to a ship for her operation or
maintenace:
F ( m) any claim in respect of the construction, repair or equipment of a ship or in respect
of dock charges or dues:

(n) any claim by a master or member of the crew of a ship for wages (including any
sum allotted out of wages or adjudged by a superintendent to be due by way of
wages);

(o) any claim by a master. shipper, charterer or agent in respect of disbursements
G made on account of a ship;

(p) any claim arising out of an act which is or is claimed to be a general average act;

(q) any claim arising out of bottomry:

(r) any claim for the forfcitun: or condemnation of a ship or of goods which are being
or have been carried. or have been attempted to be carried, in a ship. or for the
H restoration of a ship or any such goods after seizure. or for droits of Admiralty.'' .,.
•
ELISABETH v. HAR WAN INVES1MENT [THOMMEN, J.J 1037
•
(b) in relation to all claims, wherever arising (including, in the A
case of cargo or wreck salvage, claims in respect of cargo
or wreck found on land); and

{c) so far as they relate to mortgages and charges, to all
mortgages or charges, whether registered or not and
whether legal or equitable, including mortgages and charges B
created under foreign law:

Provided that nothing in this sub-section shall be construed
as extending the cases in which money or property is
recoverable under any of the provisions of the Merchant Ship- C
ping Acts 1894 to 1979".
This jurisdiction is wide enough to cover all claims in tort or contract
arising out of any agreement for carriage of goods by sea.•

The whole jurisdiction of the English High Court is now vested in all D
the divisions alike. All Divisions of the High Court and all the Judges of that
Court have equal power, authority and jurisdiction, although admiralty ac-
tions are assigned to the Queen's Bench Division and taken up by the Ad-
miralty Court.** The special requirements of an action in personam, namely,
the habitual residence or place of business of the defendant or the cause of
action having their nexus with England and Wales or the determination of a E
connected matter in the English High Court or the submission of the defen-
dant to the jurisdiction of that court, are not applicable to a proceeding
commenced as an admiralty action in rem. See 0. 75, rule 4(3) of the Rules
of the Supreme Court, 1965.* • •

The Civil Jurisdiction and Judgments Act, 1982 enacted into English
F
Law and Scottish Law the EEC Convention on Jurisdiction and Enforce-
ment of Judgments in' Civil and Commercial Matters.

Describing the unified court structure in England, Jackson sums up:
G
"The Admiralty Court developed independently, having its own
battle with common law courts over jurisdictional boundaries.

.. See the Principle stated in The Fehmam. (1958) I All E.R. 333.
See Halsbury. op. cit. 4th ed. Vol. l(I} para 309. See also Supreme Court Act. 1981.
• ** See also the editor's general note on 0.75. rule5 on the practice of the English High Court. H
1038 SUPREME COURT REPORTS [1992] 1 S.C.R.
'
A During the 18th and early 19th centuries its influence and
power decreased, but through statutes of 1840 and 1861 the
court received a firm foundation on which it has built since. It
came in from the cold into the general union of courts in 1873-5
and is now integrated into the High Court, being a branch of
the Queen's Bench Division.
B

Once under the umbrella of the unified court structure,
common law and equitable principles became directly available -1
c in the Admiralty Court. No longer need claimants have to seek
these elsewhere and no longer did jurisdictional boundaries
necessarily indicate the availability of substantive rights and
1
remedies ' •

[D.C. Jackson, Enforcement of Maritime Claims, (1985) p. BJ
D
'The law of admiralty, or maritime law, .... (is the) corpus of rules,
concepts, and legal practices governing .... the business of carrying goods
and passengers by water." (Gilmore and Black, The Law of Admiralty, '
page (1). The vital significance and the distinguishing feature of an ad-
miralty action 1i1 rem is that this jurisdiction can be assumed by the coastal
E
authorities in respect of any maritime claim by arrest of the ship, irrespec-
tive of the nationality of the ship or that of its owners, or the place of
business or domicile or residence ·of its owners or the place where the
cause of action arose wholly or in part.

F "........ In admiralty the vessel has a juridicial personality, an almost
corporate capacity, having not only rights but liabilities (sometimes distinct
from those of the own et) which may be enforced by process and decree
against the vessel, binding upon all interested in her and conclusive upon the
world, for admiralty in appropriate cases administers remedies in rem, i.e.,
G against the property, as well as remedies in personam, i.e., against the party
personally ... ". Benedict, 171e Law of American Admiralty, 6th ed. Vol.I p.3.

Admiralty Law confers upon the claimant a right in rem to proceed
against the ship or cargo as distinguished from a right in persanam to
proceed against the owner. The arrest of the ship is regarded as a mere
H procedure to obtain security to satisfy judgment. A successful plaintiff in i
ELISABETII v. HAR WAN INVESTMENT [TIIOMMEN, J.] 1039

an action in rem has a right to recover damages against the property of the A
defendant. 'The liability of the shipowner is not limited to the value of the
res primarily proceeded against ... An action .... though originally com-
menced in rem, becomes a personal action against a defendant upon
appearance, and he becomes liable for the full amount of a judgment
unless protected by the statutory provisions for the limitation of liability'.
(Roscoe's Admiralty Practice, 5th ed. p. 29)
B

The foundation of an action in rem, which is a peculiarity of the
Anglo-American law, arises from a maritime lien or claim imposing a
personal liability upon the owner of the vessel. A defendant in an admiral-
ty action in personam ~ liable for the full amount of the plaintiffs estab- C
lished claim. Likewise, a defendant acknowledging service in an action in
rem is liable to be saddled with full liability even when the amount of the
judgment exceeds the value of the res or of the bail provided. An action
in rem lies in the English High Court in respect of matters regulated by
the Supreme Court Act, 1981, and in relation to a number of claims the
jurisdiction can be invoked not only against the offending ship in question D
but also against a 'sistership' i.e., a ship in the same beneficial ownership
as the ship in regard to which the clain1 arose.

"The vessel which commits the aggression is treated as the
offender, as the guilty instrument or thing to which the forfei- E
ture attaches, without any reference whatsoever to the charac-
ter or conduct of the owner. ... ".

Per Justice Story, The United States v. The Big Malek Adhe/,
etc., [43 US (2 How.) 210, 233 (1844)]
F
Merchant ships of different nationalities travel from port to port
carrying goods or passengers. They incur liabilities in the course of their
voyage and they subject themselves to the jurisdiction of foreign· States
when they enter the waters of those States. They are liable to be arrested
for the enforcement of maritime claims, or seized in execution or satisfac- G
tion of judgements in legal actions arising out of collisions, salvage, loss of
- life or personal injury, loss of or damage to goods and the like. They are
liable to be det~ined or confiscated by the authorities of foreign States for
violating their customs regulations, safety measures, rules of the road,
health regulations, and for other causes. The coastal State may exercise H
1040 SUPREME COURT REPORTS (1992] 1 S.C.R.

~ its criminal jurisdiction on board the vessel for the purpose of arrest or
investigation in connection with certain serious crimes. In the course of an
international voyage, a vessel thus subjects itself to the public and private
laws of various countries. A ship travelling from port to port stays very
briefly in any one port. A plaintiff seeking to enforce his maritime claim
B against a foreign ship has no effective remedy once it has sailed away and
if the foreign owner has neither property nor residence within jurisdiction;
The plaintiff may therefore detain the ship by obtaining an order of
attachment whenever it is feared that the ship is likely to slip out of
jurisdiction, thus leaving the plaintiff without any security.

c A ship may be arrested (i) to acquire jurisdiction; or (ii) to obtain
security for satisfaction of the claim when decreed; or (iii) in execution of
a decree. In the first two cases, the court has the discretion to insist upon
security being furnished by the plaintiff to compensate the defendant in the.
event of it being found that the arrest was wrongful and was sought and
D obtained maliciously or in bad faith. The daimant is liable in damages for
wrongful arrest. This practice of insisting upon security being furnished by
the party seeking arrest of the ship is followed in the United States, Japan
(
and other countries. The reason for the rule is that a wrongful arrest can
cause irreparable loss and damages to the shipowner; and he should in that
E event be compensated by the arresting party. (See A"est of Ships by Hill,
Soehring, Hosoi and Helmer, 19&5).

The attachment by arrest is only provisional and its purpose is merely
to detain the ship until the matter has been finally ·settled by a competent
F court. The attachment of the vessel brings it under the custody of the
marshal or any other authorized officer. Any interference with his custody 7
is treated as a contempt of the court which has ordered the arrest. But
the marshal's right under the attachment order is not one of possession,
but only of custody. Although the custody of the vessel has passed from
G the defendant to the marshal, all the possessory rights which previously
existed continue to exist, including all the remedies which are based on
possession. The warrant usually contains a monition to all persons inter-
ested to appear before the court on a particular day and show cause why
the property should not be condemned and sold to satisfy the claim of the
H plaintiff.
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.] 1041

The attachment being only a method of safeguarding the interest of A
the plaintiff by providing him with a security, it is not likely to be ordered
if the defendant or his laywer agrees to "accept service and to put in bail
or to pay money into .court in lieu of bail". (See Halsbury's Laws of
England, 4th edn. Vol.1, p. 375 etc.).

The service of the warrant is usually effected by affixing it on the B
main mast or single mast of the ship. A ship which has been arrested under
an order of attachment may be released by the court if sufficient bail is put
in to cover the claim of the plaintiff as well as the costs of the action. The
sureties are liable for the amount entered in the bail bond.
c
If the ship or cargo under arrest before judgment has not been
released by the defendant by putting in sufficient bail, and if the property
is found deteriorating, the court has the power to order the sale of the
property after notice has been duly issued to the parties interested.

If the plaintiff has finally obtained a decree of condemnation and sale D
of the ship, the court will issue an order to the competent officer com-
manding him to sell the property, in execution of the decree, and to bring
the proceeds into court. Thereupon the officer shall issue proper notice
and arrange for the sale of the property by auction. The proceeds of the
sale are paid into the registry of the court and they shall be disposed of by E
the court according to law.

A personal action may be brought against the defendant if he is
either present in the country or submits to jurisdiction. If the foreign
owner of an arrested ship appears before the court and deposits security
"° as bail for the release of his ship against which proceedings in rem have F
.been instituted, he submits himself to jurisdiction.

An action in rem is directed against the ship itself to satisfy the claim
of the plaintiff out of the res. The ship is for this purpose treated as a
person. Such an action may constitute an inducement to the owner to
submit to the jurisdiction of the court, thereby making himself liable to be G
prni;eeded against by the plaintiff in personam. It is, however, ·imperative
in an action in rem that the ship should be within jurisdiction at the time
the proceedings are started. A decree of the court in such an action binds
not merely the parties to the writ but everybody in the world who might
dispute the plaintiffs claim. H
1042 SUPREME COURT REPORTS [1992] 1 S.C.R.
r
A It is by means of an action in rem that the arrest of a particular ship
is secured by the plaintiff. He does not sue the owner directly and by
name; but the owner or any one interested in the proceedings may appear
and defend. The writ is issued to "owners and parties interested in the
property proceeded against." The proceedings can be started in England
or in the United States in respect of a maritime lien, and in England in
B
respect of a· statutory right in rem. A maritime lien is a pri\1leged claim
against the ship or a right to a part of the property in the ship, and it
"travels" with the ship. Because the ship has to "pay for the wrong it has
done", it can be compelled to do so by a forced sale. (See The Bold
Buccleaugh, (1851) 7 Moo. PC 267). In addition to maritime liens, a ship
C is liable to be arrested in England in enforcement of statutory rights in rem
(Supreme Court Act, 1981). If the owner does not submit to the jurisdic-
tion and appear before the court to put in bail and release the ship, it is
liable to be condemned· and sold to satisfy the claims against her. If,
however, the owner submits to jurisdiction and obtains the release of the
D ship by depositing security, he becomes personally liable to be proceeded
against in personam in execution of the judgment if the amount decreed
exceeds the amount of the bail. The arrest of the foreign ship by means
of an action ill rem is thus a means of ass11ming jurisdiction by the
competent court.

E The admiralty action in rem, as practised in England or in the United
States, is unknown to. the civil law. In countries following the civil _law, all
· proceedings are initiated by actions ill persollam. The President of the
Court having competence in the matter has the power to order an attach-
ment of the ship if he is convinced that the plaintiff is likely to lose his
F security unless the ship is detained within jurisdiction. His hands are not
fettered by the technicalities of an action in rem and the scope of the
proceedings are not limited to maritime liens or claims.* According to the
French law, arrest of a ship is allowed even in respect of non-maritime
claims and whether or not the claimant is a secured or unsecured creditor.
G A vessel may be arrested either for the purpose of immobilising the vessel
as security (Saisie Collservatoire) or in execution of judgment (Saisie
Execution) whether or not the claim has any relation to the vessel. Arr.est
of the vessel has the advantage of forcing.the owner to furnish se~urity to
guarantee satisfaction of any decree that may be passed against him. On
Sec D.C. Jackson. Enforcement of Maritime Claims, (1985) Appendix 5. p. 437 et seq.
H
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.] 1043

furnishing sufficient security with the Court, he is usually allowed to secure A
the release of the vessel. Maritime law is part of the general law of France
and other 'civil la}" countries' and is dealt with by the ordinary courts or
tribunals. The presence of any property belonging to the defendant within
the territorial jurisdiction confers jurisdiction on the French Court. (See
the observation of Lord Diplock in The Jade {1976) 1 All. E:R. 921, 923).
B
The real purpose of arrest in both the English and the Civil Law
systems is to obtain ~ecurity as a guarantee for satisfaction of the decree,
although arrest in England is the basis of assumption of jurisdiction, unless
the owner has submitted to jurisdiction. In any event, once the arrest is
made and the owner has entered appearance, the proceedings continue in C
personam. All actions in the civil law-whether maritime or not-are in
. personam, and arrest of a vessel is permitted even in respect of non-
maritime claims, and the vessel is treated as any other property of the
owner, and its very presence within jurisdiction is sufficient to clothe the
competent tribunal with jurisdiction over the owner in respect of any claim. D
(See D.C.Jackson, Enforcement of Maritime Claims, (1985) Appendil< 5).
Admiralty actions in England, on the other hand,· whether in rein or in.
personam, are confined to well defined maritime liens or claims and
directed against the res {ship, cargo and freight) which is the subject-matter
of the dispute or any other ship in the same beneficial ownership as the res
in question. E
I
Maritime law is as much a part of the general legal system as any
other branch of the law. With the merger of the Admiralty and Common
Law Courts in England in 1875 and the fusion of their legal precepts and
concepts, this branch of the law, despite its peculiarities about actions in F
rem, is no longer treated as a separate and independent branch. It is not
the exclusive preserve of the English High Court, f~r certain county courts
in that country are specially authorised to exercise this jurisdiction. This
is much more true of the civil law system where no distinction is drawn
between maritime law and other branches of the law, and they are ad-
ministered alike by the same courts or tribunals. G

It may not be correct to say that the admiralty jurisdiction of the,
English Courts is dependent entirely on statutes. It may be true in a very
limited sense as ~egards the jurisdiction of the High Court after the merger
of the High Court of Admiralty with the High Court of Justice by the H
1044 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Supreme Court of Judicature Act, 1873 which came into force in 1875: See
Supreme Court of Judicature (Commencement) Act, 1874. Even so,
statutes are codifications of legal principles developed by the decisions of
Courts and those principles remain the life-blood of the statutes. The
observation of Lord Diplock in Tlze Jade (1976) 1 All. E.R. 920, on which
B much reliance is placed by Mr. Ramachandran in support of his argu-
ments, has to be so understood. (See also Halsbury's laws of England,
Vol. 1, para 307).

Remedy for enforcement of maritime liens was available prior to the
introduction of statutes. "Admiralty law was derived from the laws of
C Oleron, supplemented by the civil law" Per Lord Halsbury, L.C; Currie v.
M.Knight, [1897] A~ 97. For a lon:g time the Admiralty Court developed
the law independently fighting its battles with the Common Law Courts on
the question of jurisdictional boundaries. By statutory intervention the
court structure came to be unified and substantive rights and remedies
D became available without regard to jurisdictional boundaries. Although
statutes now control the field, much of the admiralty law is rooted in
judicial decisions and influenced by the impact of civil law, common law
I
and equity. The ancient maritime codes like the Rhodian Sea Law, the
Basilika, the Assizes of Jerusalem, the Rolls of Oleron, the Laws of Visby,
the Hanseatic Code, the Black Book of the British Admiralty, Consolato
E del Mare, and others are, apart from statutes, some of the sources from
which the law developed in England. Any attempt to confine admiralty or
maritime law within the bounds of statutes is not only unrealistic but
incorrect. Although this branch of the law in England is now governed
generally by statutes, the law in all its aspects can be understood only by
F viewing it in the context of decisions of courts and the general principles
which are common to common law and equity.

Unlike in the civil law countries", there ts no maritime code in
11

England containing all aspects of maritime law. The Merchant Shipping
Acts and the Carriage of Goods by Sea Act contain the substantive rules,
G but the jurisdictional and other aspects of maritime claims have lo be
traced to numerous other statutes and sources. English Maritime Law 'is
still composed of rules having their roots in statute, rules of court and
judicial doctrine of Admiralty, common law and equity'. (See D.C. Jack-
son, Enforcemem of Maritime Claims, 1985, p.9). See also Halsbury, op.
H cit., Vol. (1), para 307. As Christopher Hill puts it: "..... Britain is a
·ELISABETH v. HARWAN INVESTMENT [THOMMEN, J.] 1045
l
common law country and that f'\dmiralty law has been superimposed over A
the years by various statutory enactments from time to time. The right to
seize a vessel by legal process is therefore partly based on rights conferred
by general maritime law and partly upon the right to take legal action of
this nature granted by statute .... ". Maritime Law, 2nd ed. p. 93.

In tracing the history of admiralty law in India, it is likewise mislead- B
ing and incorrect to confine it to statutes. Statutes have been codifications
of rules of law as developed by usage, practice and custom. As stated by
Westropp, CJ., of the Bombay High Court in Bardo! & Anr. v. T11e
American Ship Or Vessel 'Augusta; 1873 (x) Bombay High Court Reports,
110, at p. 113:- c
"... If we have jurisdiction to entertain this suit, it must be sought
for in the general maritime law administered by Courts of
Admiralty ............................................................... ,......................... ..
...: .. we must hold it to be quite clear that the Statutes 3 & 4 D
VicL c. 65 (1840), 24 Viet. c. 10 (1861), and 26 & 27 Viet. c.
24 (1863), do not increase or in any wise affect our jurisdiction
either in Admiralty or Vice-Admiralty, and that if we have
· jurisdiction to entertain this cause, that jurisdiction must be
sought for outside those Statutes."
E
Where statutes are silent arid remedy has to be sought by recourse
to basic principles, it is the duty of the court to devise procedural rules by
analogy and expediency. Actions in rem, as seen above, were resorted to
by courts as a device to overcome the difficulty of personal service on the
defendant by compelling him to enter appearance and accept service of F
summons with a view to furnishing security for the release of the res; or, in
his absence, pro~eed against the res itself, by attributing to it a personality
for the purpose of entering a decree and executing the same by sale of the
res. This is a practical procedural device developed by the courts with a
view to rendering justice in accordance with substantive law not only in
cases of collision and salvage, 'but also in cases of either maritime liens and G
claims arising by reason of breach of contract for the hire of vessels or the
carriage of goods or other maritime transactions, or tertious acts, such as
conversion or negligence occurring in connection with the carriage of
goods. Where substantive law demands justice for the party aggrieved, and
the statute has not provided the remedy; it is the duty of the court to devise H
1046 SUPREME COURT REPORTS (1992) 1 S.C.R.

A procedure by drawing analogy from other systems of law and practice. To r
the courts of the "civil law countries" in Europe and other places, like
problems seldom arise, for all persons and things within their territories
(including their waters) fall within their competence to deal with. They do
not have to draw any distinction between an action in rem and an action
in personam.
B
It is likewise withip the competence of the appropriate Indian Courts
to deal, in accordance with the general principles of maritime law and the
applicable provisions of statutory law, with all.persons and things found
within their jurisdiction. The power of the court is plenary and unlimited
i
C unless it is expressly or by necessary implication curtailed. Absent such
curtailment of jurisdiction, all remedies which are available to the courts
to administer justice are available to a claimant against a foreign ship and
its owner found within the jurisdiction of the concerned High Court. This
power of the court to render justice must necessarily include the power to
make interlocutory orders for arrest and attachment before judgment.
D
The High Courts in India are superior courts of record .. They have
original and appellate jurisdiction. They have inherent and plenary
powers. Unless expressly or impliedly barred, and subject to the appellate
or discretionary jurisdiction of this Court, the High Courts have unlimited
E jurisdiction, including the jurisdiction to determine their own powers. (See
Naresh Shridhar Mirajkar and Ors., v. State of Maharashtra and Anr., [1966]
3 SCR 744. As stated in Ha/sbury's Laws of England. 4th edition, Vol. 10,
para 713 :

"Prima facie, no matter is deemed to be beyond the jurisdiction
F of a superior court unless it is expressly shown to be so, while
nothing is within the jurisdiction of an inferior court unless it ·1
is expressly shown on the face of the proceedings that the
particular matter is within the cognizance of the particular
court.'1

G The observation of this Court in Raja Soap Factory and Others v. S.P.
Shantharaj and. Others, [1965] 2 SCR 800, that section 151 of the Code of
Civil Procedure did not confer on the High Court jurisdiction which was
not specifically vested was made in the context of section 105 of the Trade
and Merchandise Marks Act ( 43 of 1958) which conferred a specific
H jurisdiction in respect of a passin~ off action. That observation is not
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.] 1047

relevant to the question regarding the inherent and plenary jurisdiction of A
the High Court as a superior court of record. The Andhra Pradesh High
Court, as a successor to the Madras High Court, is vested with all the
appellate and original jurisdiction, including admiralty jurisdiction to order
the arrest and detention of a ship.

In decisions such as Jayaswal Shipping Company v. 'S.S. Leelavati',
B
AIR 1954 Calcutta 415; Kamalakar Mahadev Bhagat v. Scindia Steam
Navigation Co. Ltd., Bombay, AIR 1961 BIJmbay 186; Rungta Sons Private
Ltd. & Anr. v S.S. 'Edison Mariner' & Anr., 1961-62 (66) Calcutta Weekly
Notes 1083; National Co. Ltd. v. Asia Mariner, 1967-68 (72) Calcutta
Weekly Notes 635; Mrs. Sahida Ismail v. Petko R. Salvejkov & Ors., AIR C
1973 Bombay 18 and Smt. Reena Padhi v. 'Jagdhir', AIR 1982 Orissa 57,
the High Courts took an unduly restrictive view of the courts' admiralty
jurisdiction by limiting it to what was permitted by the Admiralty Court
Act, 1861 and the Colonial Courts of Admiralty Act, 1890. This was, in
our view , an unjustified abdication of jurisdiction and a self-assumed fetter D
on competence to render justice.

In equating the admiralty jurisdiction of the Indian High Court to that
of the English High Court, the Colonial Court of Admiralty Act, 1890 sig-
nificantly refers to the admiralty jurisdiction of the High Court in England
'whether existing by virtue of any statute or otherwise'. This is an enabling E
statute, and not a statute of limitation of power. It aids, and does not fetter,
the growth of jurisdiction. There is no reason why the words 'statute or
otherwise' should be so construed as to exclude the various sources from
which the admiralty jurisdiction in England developed. Apart from statutes,
the powers of that Court, as seen above, were derived from custom and F
practice and the principles developed by common law and equity as well as
by the generally recognised principles of civil law developed and practised in
Europe. There is no reason, as rightly stated by Westropp. C.J. of the
Bombay High Court in Bardot (supra}, why the expression 'statute or
otherwise' should be so construed as to .exclude all these vast areas of legal
principles which enriched and strengthened the maritime laws of England. G
Likewise, there is no reason why those principles should also not be drawn
upon to enrich and strengthen the jurisprudence of this country, even if the
jurisdiction of our courts were to be, by compulsions of history, considered
to be curtailed and dovetailed to the colonial past - a proposition which is
neither cofrect nor consistent with otir status as a sovereign republic. It is . H
1048 SUPREME COURT REPORTS [1992] 1 S.C.R.

A time to take a fresh look at the old precedents.

In this connection we would refer to the recent decision of this Court
in Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat & Ors., IT 1991 (3) SC 617. This Court stated :

B "..... The constitution has assigned a new role. to the Constitu-
tional Courts to ensure rule of law in the country..... Time has
come to have a fresh look at the old precedents and to lay down
law with the changed perceptions keeping in view the provisions
of the Constitution .... " ·
c
See also S.P. Gupta v. Union of India, [1982] 2 SCR, 365, 520-521, 597-598.

It is well recognised in international law that a merchant ship, though
generally governed by the laws of the flag State, subjects itself to the
jurisdiction of a foreign State as it enters its waters. The Geneva Conven-
D tion on the Territorial Sea and the Contiguous Zone, 1958 and the Law of
the Sea Convention, 1982 affirm that the sovereignty of a State extends over
its internal and territorial waters.*

"A foreign vessel, no matter what flag she flies, owes temporary and
E local allegiance to the sovereign of any port to which she comes. And the
persons in such a vessel likewise must obey the laws and regulations of the
port. Such jurisdiction is discretionary. Once a foreign vessel passes out
of territorial waters, she owes no farther duty to the place which she has
left, unless she is 'hotly pursued'. But her conduct on the high seas or in
foreign ports may subject her to penalties on returning on a subsequent
F visit." (Benedict, T71e Law of American Admiralty, Sixth Edition, pages 121
&122).

In the words of Chief Justice Marshal of the United States Supreme
Court "it would be obviously inconvenient and dangerous to society and
G would subject the laws to continual infraction, and the government to
degradation, if such (alien) individuals or merchants (trading in ships) did
not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country/' (Tlle Schooner Exchange v. M' Faddon & Ors.,
See Nagendra Singh, International Maritime Law Conventions. British Shipping Laws.
H Vols. I to IV.
ELISABETII v. HAR WAN INVESTMENT [TIIOMMEN, J.] 1049

[1812] 11 U.S. (7 Cranch) 114, 143.) A
All foreign merchant ships and persons thereon fall under the juris-
diction of a coastal State as they enter its waters. Subject to the right of
'innocent passage', the coastal State is free to exercise jurisdiction over
such ships in respect of matters the consequences of which extend beyond
the ships. Such ships are subject to the local jurisdiction in criminal, civil
B
and administrative matters. This jurisdiction is, however, assumed only
when, in the opinion of the local authorities, the peace or tranquillity of
the port is disturbed, when strangers to the vessel are involved or when the
..,... local authorities are appealed to. Questions which affect only the internal
order and economy of the ship are generally left to the authorities of the C
flag State. Coastal States are entitled to assume jurisdiction in respec! of
maritime claims against foreign merchant ships lying in their waters.
These ships are liable to be arrested and detained for the enforcement of
maritime claims. The courts of the country in which a foreign ship has
been arrested may determine the cases according to merits, provided they D
are empowered to do so by the domestic law of the country or in any of
the cases recognised by the International Convention relating to the Arrest
of Seagoing Ships, Brussels, 1952.* The maritime claims in respect of which
the power of arrest is recognised ·in law include claims relating to damage
caused by any ship either in collision or otherwise; claims relating to E
carriage of goods in any ship whether by charterparty or otherwise, loss of
or damage to goods etc. These principles of international law, as generally
recognised by nations, leave no doubt that, subject to the local laws
regulating the competence of courts, all foreign ships lying within the
waters of a State, including waters in ports, harbours, roadsteads, and the
territorial waters, subject themselves to the jurisdiction of the local
F
~ authorities in respect of maritime claims and they are liable to be arrested
for the enforcement of such claims.

In India, carriage of goods by sea is governed by the Indian Bills of
Lading Act, 1856, the Indian Carriage of Goods by Sea Act, 1925, the G
Merchant Shipping Act, 1958, and general statutes, such as the Marine
Insurance Act, 1963, the Contract Act, 1872, the Evidence Act, 1872, the
Indian Penal Code, 1860, the Transfer of Property Act, 1882, the Civil
See also the International Conventions for the Unification of Certain Rules relating to
Maritime Liens and MortP"a!!eS of 10th April. 1926 and May 27, 1967. H
1050 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Procedure Code, 1908, the Criminal Procedure Code, 1973, the Companies
Act, 1956, etc. etc. as well as the general principles of law such as the law
of tort, public and private· international law etc. In this connection, refer-
ence may also be made to the Indian Ports Act, 1908 and the Major Port
Trusts Act, 1963 concerning the administration of the port and the juris-
diction over ships in port, the Customs Act, 1962 containing various
B
regulatory measures affecting ships, goods ani:I persons in connection with .
importation or exportation of goods, as well as the provisions governing
employment of lahllur. The Indian Bills of Lading Act, 1856 emphasises
the negotiable and other characteristics of a bill of lading. The Carriage
of Goods by Sea Act, 1925, contains the Hague Rules regulating the
C respective rights and liabilities of the parties to a contract governed by
bills of lading or similar documents of title for carriage of goods by sea
"from any port in India to any other port whether in India or outside India".
The Merchant Shipping Act embodies rules regarding registration of In-
. dian ships; transfers or mortgages of ships or shares; national character
D and flag; employment of seamen; safety, nuclear ships; collisions, accidents
at sea and liability; limitation of liability; navigation; prevention of pollu-
tion; investigation and enquiries; wreck and salvage; coasting trade; sailing
vessels; penalties lind procedure, etc. Many of these provisions have been
adopted from rules formulated by various international conventions.

E It is true that Indian statutes lag behind the development of interna-
tional law in comparison to contemporaneous statutes in England and
other maritime countries. Although the Hague Rules are embodiedin the
Carriage of Goods by Sea Act, 1925, India never became a party to the
International Convention laying down those rules (International Conven-
F tion for the Unification of Certain· Rules of Law relating to Bills of Lading,
Brussels 1924). The Carriage of Goods by Sea Act, 1925 merely followed 1
the (United Kingdom) Carriage of Goods by Sea Act, 1924. The United
Kingdom repealed the Carriage of Goods by Sea Act, 1924 with a view to
incorporating the Visby Rules adopted by the Brussels Protocol of 1968.
The Hague-Visby Rules w~re accordingly adopted by the Carriage of
G Goods by Sea Act, 1971 (United Kingdom). Indian legislation has not,
however, progressed, notwithstanding the Brussels Protocol of 1968 adopt;
ing the Vishy Rules or the United Nations Convention on the Carriage of
Goods hy Sea, 1978 adopting the Hamburg Rules. The Hamburg Rules
prescribe the minimum liabilities of the carrier far more, justly and equi-
H tably than the Hague Rules so as to correct the tilt in the latter in favour •
ELISABETH v. HAR WAN INVESTMENT £TH?MMEN, J.] 1051

of the carriers. The Hamburg Rules are acclaimed to be a great improve- A
ment on the Hague Rules and far more beneficial from the point of view
of the cargo owners. India has also not adopted the International Conven-
tion relating to the Arrest of Sea-going Ships, Brussels, 1952. Nor has
India adopted the Brussels Conventions of 1952 on civil and penal juris-
diction in matters of collision; nor the Brussels Conventions of 1926 and
· 191)7 relating to maritime liens and mortgages.• India seems to be lagging
B
llehind many other countries in ratifying and adopting the beneficial
provisions of various conventions intended to facilitate international trade.
Although .these conventions have not beefi 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 c
trade and are as.such part of the common law of India and applicable for
the enforcement of maritime claims against foreign ships.

The Merchant Shipping Act; 1958 contains various provisions to
enforce territorial jurisdiction. The Act being ess~tially regulatory in
character, the various authorities, tribunals and Courts entrusted with the D
administration and enforcement of its provisions are specifically stated,
The High Court is defined under section 3 (15} as follows :

"3(15). 'High Court', in relation to a vessel, means the High
Court within the limits of whose appellate jurisdiction - E
f
I (a) the port .,f registry of the vessel is situate;

(b) the vessel is for the time being; or

(c) the cause of action wholly or in part arises;"
,. ! •
F
(a) In!ernational·Convention relating to ~he Arrest of Seagoing Ships, Bru~els, 10
May 1952 (IMC);

(b} International Conv~ntion on Certain Rules concerning Civil Jurisdiction in
Matters of Collision, Brus.sets. 10 May 1952 (IMC);
G
(c) International Convention for the Unification of Certain Rules relating to Penal
Jurisdiction m \1attcrs of Collision. Brussels. 10 May 1952 (IMC); and

(d)·lntemational Conventions for the Unification of Certain Rules of Law relating
to Maritime Liens and Mortgages Brussels, 10 April 1926, and the· Revised
Convention· on ~ritime Liens and Mortgages, Brussels, 29 May .1967 (IMC). -.. H
1052 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Accordingly, a foreign ship falls within the jurisdiction of the High Court
where the vessel happens to be at the relevant time - i.e., at the time when
the jurisdiction of the High Court is invoked, or, where the cause of action
wholly or in part arises.

The detention of a foreign ship is authorised in terms of sections 443
B and 444. In view of their vital significance in the enforcement of maritime
jurisdiction, we shall read these two sections in full. Seciion 443 defines
the character and scope of the power of detention:

"S. 443. Power .to detain foreign ship that has occasioned
damage. - (1) Whenever any damage has in any part of the
c world been caused to property belonging to the Government
or to any citizen of India or a company by a ship other than an
Indian ship and at any time thereafter that ship is found within
Indian jurisdiction, the High Court may, upon the application
of any person who alleges that the damage was caused by the
D misconduct or want of skill of the master or any member of the
crew of the ship, issue an order directed to any proper officer
or other officer named in the order requiring him to detain the
ship until such time as the owner, master ~r consignee thereof
has satisfied any claim in respect of the damage or has given
E security to the satisfaction of ,the High Court to pay all costs
and damages tllat may be awarded in any legal proceedings
that may be instituted in respect of tl~e damage, and any officer
to whom the order is directed shall detain the ship accordingly.

(2) Whenever it appears that before an application can be
F made under this section, the ship in respect of which the t
application is to be made will have departed from India or the
territorial waters of India, any proper officer may detain the
ship for such time as to allow the application to be made and
the result thereof to be communicated to the officer. detaining
the ship, and (hat officer shall not be liable for any costs or
G
damages in respect of the detention unless the satne is proved
to have been made without reasonable grounds.

(3) In any legal_ proceedings in relation to any such damage
aforesaid, the person giving security shall be made a defendant
H and shall for the purpose of such pr~eding be deemed to be
ELISABETH v. HAR WAN INVESTMENT [THOMMEN, J.] 1053

the owner of the ship that has occasioned the damage." A
(emphasis supplied)

The pow~r of enforcement of an order of detention of a foreign ship
is dealt with by section 444. ·
B
"S. 444. Power to enforce detention of ship. - (1) Where under
this Act a ship is authorised or ordered to be detained, any
commissioned officer of the Indian Navy or any port officer,
pilot, harbour master, co.nservator of port or customs collector
may detain the ship.
c
(2) If any ship after detention, or after service on the master
of any notice of, or order for, such detentio11 proceeds to sea
before she is released by competent authority, the master of
the ship shall be guilty of an offence under this sub-section.
D
(3) When a ship so proceeding to sea takes to sea, whe11 on
board thereof in the execution of his duty any person authorised
under this Act to detain or survey the ship, the owner, master
or agent of such ship shall each be liable to pay all expenses
of, and iocidental to, such person being so taken to sea and E
shall also be guilty of an offence under this sub-section ..

(4) When any owner, or master or agent is convicted of an
offence under sub-section (3), the convicting magisirate may
inquire into and determine the amount payable on account of
expenses by such owner, master or agent under that sub-section F
' and may direct that the same shall be recovered from him in
the manner provided for the recovery of fines."
These provisions relate to detention by reason of damage caused in any
part of the world by a foreign ship to property belongiog to the Govern-
ment of India or to an Indian citizen or company. The sections are wide G
in terms and the expression 'damage' is not necessarily confined to physical
damage. Ordinarily damage is caused by physical contact of the ship, such
as in collision. But damage can also be caused to property by breach of
contract or acts of commission or omission on the part of the carrier or
his agents or servants by reason of the negligent operation and manage-
ment of the vessel, as, fur example, when cargo is damaged by exposure to H
1054 SUPREME COURT REPORTS (1992] 1 S.C.R.
,.
A weather or by negligent stowage; or, by the misc9nduct of those in charge
of the ship, like when· cargo is disposed of contrary to the instructions of
the owner or by reason of theft and other misdeeds. In all these cases,
damage arises by reason of loss caused by what is done by the ship or by
,
the breach, negligence or misdeeds of those in charge of the ship. It must
however be noticed that the expression '.damage done by any ship' has been
B construed by the English Courts as not to apply to claims against the
carrying sl)ip for damage done to cargo. In the Victoria 1887 12 PD 105,
the Court so construed section 7 of the Admiralty Court Act, 1861 (24
Victoriae c. 10) '. It has been held to apply only to physical damage done
by a ship by reason of its coming into contact with something. See The Viira "1
c Crnz, (1884] 9 PD 96; Currie v. M.Knight, [1897] AC 97 and. The Jade, [1976]
1 All. E.R. 920. .In view of the specific provisions of the English statutes
of 1920, 1925, 1956 and 1981, it was unnecessary for the English Courts to
construe the expression broadly so as to include cargo claims and the like.
The last two enactments contain an exhaustive list of maritime claims and
questions in regard to which the High Court can exercise jurisdiction over
D any merchant ship by arresting it as it enters the waters of Britain. This
power, as already noticed, is available, whatever be the nationality of the
ship or its owner or the domicile or place of residence or business of the
owner, or wherever the cause of action has arisen. About the words
'damage done by a ship' in section 7 of the Admiralty Court Act, 1861 and
E the decision in The Victoria [1887] 12 PD i05 to the effect that the section
had no application to claims against the carrying ship for damage to cargo,
the following observation significantly appears in Ha/sbury's Laws of
England, 4th ed. Vol. I (1), para 319 N. 12.

" ... but this question is academic in the light of the fact that
F jurisdiction in respect of claims for damage to cargo carried
in a ship is now expressly given by the Supreme Court Act 1981 '
s. 20(2)(g)."

In the absence of any statute in India comparable to the English
G statutes on admiralty jurisdiction, there is no reason why the words
'damage caused by a ship' appearing in section. 443 of the Merchant
Shipping Act, 1958 should be so narrowly construed as to limit them to
Section 7 reads :
"The High Court of Adiniralty shall have jurisdiction over any Claim for Damage done
H by any ship."
ELISABETII v. HARWAN INVESTMENT [TIIOMMEN, J.] 1055

physical damage and exclude any other damage arising by reason of the A
operation of the vessel in connection with the carriage of goods. The
expression is wide enough to include all maritime questions or claims. If
goods or other properly are lost or damaged, whether by physical contact
or otherwise, by reason of unauthorised acts w negligent conduct on the
part of the shipqwner or his agents or servants, wherever the cause of B
action has ·arisen, or wherever the ship is registered, or wherever the owner
has his residence or domicile or .place of business, such a ship, at the
request of the person aggrieved, is liable to be detained when found within
Indian jurisdiction by recourse to sections 443 and 444 of the Merchant
,.-- Shipping Act, 1958 read with the appropriate rules of practice and proce-
dure of the High Court. These procedural provisions are but tools for C
enforcement of substantive rights which are rooted in general principles of
law, apart from statutes, and for the enforcement of which a party ag-
grieved has a right to invoke the inherent jurisdiction of a superior court.

The Indian Carriage of Goods by Sea Act, 1925 applies to carriage D
of goods by sea under bills of lading or similar documents of title from a
port in India to any other port whether in or outside India. (See section
2). The Act imposes certain responsibilities and liabilities and confers
certain rights and immunities upon the carrier (sec Articles III & IV). In'
respect of a claim relating to an outward cargo, the cargo owner has a right
to bring a suit against a shipowner subject to the period of limitation E
specified under the Act, namely, one year [Article III (6)]: The substantive
rights recognised by the statute are of equal application to foreign mer-
chant ships as they are to Indian merchant ships. The Carriage of Goods
by Sea Act does not, however, contain any provision for the enforcement
1 of the right by arresting the foreign vessel found in Indian waters. In the F
"' absence of arrest, no effective remedy against a foreign owner may be
available to the cargo owner. The same is the position with regard to
claims relating to cargo carried under a charterparty. It is, therefore,
necessary that he should have recourse to the remedy available to him
under the Merchant Shipping Act. That Act, as stated earlier, confers a
right to arrest a vessel in respect of any damage caused by a ship. If that G
expression, in the absence of any other more appropriate statute, is
understood sufficiently broadly as .an enabling provision to effectively
assume jurisdiction over a foreign ship for the·enforcement of a substantive
right recognised by law, there would be no difficulty in finding a remedy
-r for the right the law has conferred on the cargo owner. H
1056 SUPREME COURTREPORTS (1992) 1 S.C.R.

A· · The Merchant Shipping Act empowers the concerned High Court to
arrest a ship in respect of a substantive right. A right conferred by the Indian
Carriage of Goods by Sea Act, 1925 in respect of outward cargo is one of
those rights which can be enforced by arrest and detention of the foreign ship .
in order to found jurisdiction over the vessel and its owners, just as it can be
B · done in respect of inward cargo by reason of the substantive rights conferred
by the Admiralty Court Act, 1861 read with the Colonial Courts of Admiralt}'
Act, 1890, and other rules of law. The same principle must hold good for
carriage under a charterparty. These and other laws, such as the law of
contract, tort, crime, mortgage, marine insurance, customs, port operations,
etc., and the Civil and Criminal Procedure Codes as well as the relevant rules
C of.court regulating procedure and practice together constitute the body of
substantive and procedural laws governing claims relating to inward and
outward cargo, and such claims are enforceable against foreign ships by
recourse to arrest and detention when found within jurisdiction. Viewed in
this light, and by this reasoning, the Andhra Pradesh High Court, as a succes-
D sor to the Madras High Court, does not Ii.ck admiralty jurisdiction)> respect
of claims relating to outward cargo.

The admiralty jurisdiction of the High Court is dependent on the
presence of the foreign ship in Indian waters and founded on the arrest of
that ship. This jurisdiction can be assumed by the concerned High Court,
E whether. or not the defendant resides or carries on business, or the cause
of action arose wholly or in part, within the local limits of its jurisdiction.
Once a foreign ship is arrested within the local limits of the jurisdiction of
the High Court, and the owner of the ship has entered appearance and
furnished security to the satisfaction of the High Court for the release .of
F the ship, the proceedings continue as a personal action.

The Merchant Shipping Act, 1958 provides a detailed code of substan-
an
tive and procedural rules regulating shipping as industry and the control
exercised over it by the competent authorities in confirmity with various
international conventions which have, under the auspices of International
G Organisations such as the IMO or the !LO, unified and developed various
aspects of shipping laws. Conventions reguladng sea traffic, safety of life at
sea, employment of seamen, wages, hours of work, social security, etc. are
cases in point. Likewise, the substantive rules concerning transport of goods
are· contained in the Indian Bills of Lading Act, 1856 and the Indian Carriage
H of Goods by Sea Act, 1925. But the jurisdictional questions concerning arrest .,.
ELJSABE'ffi v. HARWAN INVES1MENT [THOMMEN, J.) 1057

of foreign ships for enforcement of claims against the shipowner as a A
transporter of goods, which in England are regulated by the Supreine Court
Act 1981, are in many respects left unregulated by Indian legislation. While
the provisions of various international conventions concerning arrest of
ships, civil and penal· jurisdiction in matters of collision, maritime liens and
mortgages etc. have been incorporated into the municipal laws of many
maritime States, India, as stated above, lags behind them in adopting these
B
Ul)ified rules.• By reason of this void, doubts about jurisidiction often arise,
as in the pr~sent case, when substantive rights, such as those recognised by
the Carriage of Goods by Sea Act,. are sought to be enforced. The remedy
lies, apart from enlightened judicial construction, in prompt legislative action
to codify and clarify the admiralty laws of this country. This requires c
thorough research and investigation by a team of experts in admiralty law,
comparative law, and public and private international law, Any attempt to
codify without such investigation is bound to be futile.

No Indian statute defines a maritime claim. The Supreme Court Act, D
1981 of England has catalogued maritime claims with reference to the
unified rules adopted by the Brussels Convention of 1952 on· the Arrest of
Seagoing Ships.**

See, for example, the Brussels Conventions listed above.
See also the Administration of Justice Act, 1956 and the Supreme Court Act, 1981 E
incorporating the international rules into English law.
.. International Convention for the Unification of Certain Rul~ relating to the Arrest of
Seagoing Ships, Brussels, May 10, 1952. Article 1 of this Convention reads:
(1) "Maritime Claim" means a claim arising out of one or more of the following:

(a) damage caused by any ship either in collision or otherswise; (b) loss oflife or personal F
injury caused by anr ship or occurring in connection with the operation of any ship; ( c)
salvage; ( d) agreement relating to the use or hire of any ship whether by charterparty
or othetwise; (e) agreement relating to the carriage of goods in any ship whether by
charterpartyor othetwise; (f) Joss of or damage:to goods including baggage carried in
any ship; (g) general average: (h) bottomcy; (i) towage U) pilotage; (k) goods or
materials wherevCr supplied to a ship for her operation or maintenance; (1) construe- G
tion, repair or equipment of any ship or dock charges and dues; (m) wages of Masters,
Officers, or Crew; (n) Mastefs disbursements, including disbursements made by
shippers, charterers or agents on behalf of a ship or her owner; ( o) disputes as to the
title to or ownership of any ship; (p) disputes between co-owners of any ship as to the
ownership, possession employment or earnings of that ship: (q) the mortgage or
hypothecation of any ship.
footnote contd. on next page H
1058 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Although India has not adopted the various Brussels Conventions*,' the
provisions of these Conventions are the result of international unification
and development of the maritime laws of the world, and can, therefore, be
regarded as the international common law or transnational law rooted in
and evolved out· of the general principles of national laws, which, in the
B absence of specific statutory provisions, Cllil b~ adopted and adapted by
courts to supplement and complement national statutes on the subject. In
the absence of a general maritime code, these principles aid the courts in
filling up the lacunae in the Merchant Shipping Act and other enactments
concerning shipping. "Procedure is but a handmaiden of justice and the
cause of justice can never be allowed to be thwarted by any procedural
C technicalities.'' S.P.Gupta v. Union of India, [1982] 2 SCR, 365, 520,
.
521. .
It is important to remember that the Brussels Conv~ntion on Arrest
of Ships merely restricts or regulates the power of the coastal States and
is not intended to confer power which they did not otherwise have as
D sovereign States. 'Arrest' to which the convention refers is detention of a
ship to secure a maritime claim, and not seizure of a ship in execution or
satisfaction of judgment.

The judicial power of this country, which is ati aspect of national
E sovereignty, is. vested in the people and is articulated in the provisions of
the Constitution and the laws and is exercised by eourts empowered to
exercise it. It is absurd to confine that power to the provisions of imperial
statutes of a bygone age. Access to couri which is an important right
vested in every. citizen implies the existence of the power of the Court to
render justice according to law. Where statute is silent and judicial inter-
F vention is required, Courts strive to redress grievances according to what
is perceived to be principles of justice; equity and good conscience.

In the words of Chief Justice Marshal :-

G (2) ttAfrest" means the detention of a ship by judicial process to secure a maritime claim,
but does not include the seizure of a ship in execUtion or satisfaction of a judgment.

(3) "Person" includes individuals, partnershlpsand bodies corporate, Governmen.lS, their•
Depart.ments. and Public Authorities.

(4) "Claimant" means a person who alleges that a maritime claim exists in his favour.
H • See the Conventions listed above.
ELISABETII v. HAR WAN INVESTMENT [TIIOMMEN, J.] 1059

"The jurisdiction of courts is a branch of that which is possessed A
by the nation as an indepe'udent sovereign power. The juris-
diction of the nation within its own territory is necessarily
. exclusive and absolute.

It is susceptible of no limitation not imposed by itself ....".
B
The Schooner Exchange v. M'Faddon & Ors. U.S. Supreme
Court Reports, Cranch 5-9, p. 114, 133 (3 Led. 287).

r Admiralty jurisdiction is an essential aspect of judicial sovereignty
which under the Constitution and the laws is exercised by the High Court C
as a superior court of record administering justice in relation to persons
and things Within its jurisdiction. Power to enforce ciaims against foreign
ships is an essential attribute of admiralty jurisdiction and it is assumed
over such ships while they are within the jurisdiction of the High Court by
arresting and ~etaining them.
D
All persons and things within the waters of a State fall within its
jurisdiction unless specifically curtailed or regulated by rules of interna-
tional law. The power to arrest a foreign vessel, while in the waters of a
coastal State, in respect of a maritime claim, wherever arising, is a
demonstrable manifestation and an essential attribute of territorial E
sovereignty. This· power is recognised by several international conven-
tions.* These conventions contain the unified rules of law drawn from
different legal systems. Although many of these conventions have yet to
be ratified by India, they embody principles of law recognised by the
generality of maritime States, and can therefore be regarded as' part of our
F
common law. The want of ratification of these conventions is apparently
not because of ai;ty policy disagreement, as is clear from active and fruitful
Indian participation in the formulation of rules adopted by the conventions,
but perhaps because of otheP circumstances, such as iack of an adequate
and specialised machinery for implementation of the various international
conventions by coordinating for the purpose the concerned Departments G
of the Government. Such a specialised body of legal an!l technical experts
can facilitate adoption of internaiionally unified rules by national legisla-
tion. It is appropriate that sufficient attention is paid to this aspect of the
See the Conventions referred to above. See also Nagendra Singh, lntema~ional Maritime
Conventions, British. Shipping Laws, Vol. 4 - - H ·
1060 SUPREME COURT REPORTS [1992) 1 S.C.R.

A matter by the concerned authorities. Perhaps the Law Commission of
India, endowed as it ought to be with sufficient authority, status and
independence, as is the position in England, can render valuable help in
this regard. Delay in the adoption of international conventions which are
intended to facilitate trade hinders the economic growih of the nation.

B The British statute assimilating Indian High Courts to the position of
the English High Court in respect of admiralty jurisdiction is an enabling
legislation and it is but one of the strands of jurisdiction vested in the High
, Court by virtue of the constitutional provisions. The jurisdiction of the
High Court is governed by the Constitution and the laws, and the con-
C tinuance in force of the existing laws is not a fetter but an additional source
of power. Access to court for redressal of grievance being an important
right of every person, it is essential that the jurisdiction of the courts is
construed harmoniously and consistently with its vital function in that
respect, so that absence of legislation will not jeopardise that right.

D
Admiralty jurisdiction, despite the peculiarities of its origin and
growth-rooted as it is in history and nurtured by the growing demands of
international irade is n~vertheless a part of the totality of jurisdiction
vested in the High Court as a superior court of record, and it is not a
distinct and separate jurisdiction as was once .the position in England
E before the unification of courts.. The; 1890 and 1891 Acts specifically
conferred admiralty jurisdiction on the Indian High Courts by reason of
their being courts of unlimited jurisdiction. These Acts did not create any
spearate or distinct jurisdiction, but merely equated the Indian High Courts
to the position of the English High Court (united and consolidated as that
F Court has been since 1875) for the exercise of admiralty powers within the
jurisdiction of the former. The contrary view expressed in some of the
decisions of the High Courts referred to earlier is clearly wrong.

Once a foreign ship is arrested in Indian waters by an order of the
High Court, in. exercise of the admiralty jurisdiction vested in it by statute,
G or inherent in it as a court of record, in respect of any maritim~ claim
against its owner, wherever the cause of action may have arisen, and
whether or not the ship is subsequently released by the owner furnishing
security, proceedings must continue against the owner as in any other suit.
The arrest of the vessel while in Indian waters by an order of the concerned
H High Court, as defined under the Merchant Shil:'ping Act, 1958 [section ,,
EL!SABETII v. HARWAN INVESTMENT [SAHAI, J.] 1061

3(15)] attracts the jurisdiction of the competent court to proceed with the A
'trial, as in the case of any other suit, as an action against the owner, and
any decree obtained by the plaintiff is executable against any property of
the owner available within jurisidiction, including the security fomislied by
him for release of the vessel.

All foreign ships entering Indian waters are presumed to know that B
they fall within the jurisdiction of this country during their stay here. The
ve5sel in question was lying in the Port of Vishakhapatnam wh.en she was
arrested in respect of a cause of action relating to cargo. The sole
; contention of the defendants as regards jurisdiction was that no High Court
in India was invested with admiralty jurisdiction to order the arrest of the C
vessel in respect of a cause of action relating to outward cargo because
section 6 cif the Admiralty Court Act, 1861 (read with the Colonial Courts
of Admiralty Act, 1890) conferring admiralty jurisdiction on Indian High
Courts confined it to 'claims for damage to cargo imported'. This conten-
tion, for the reasons we have stated, has no merits. The High Court, in
our view, rightly assumed jurisdiction by the arrest of the vessel while it D
was lying in the port of Vishakhapatanam.

The High Court of Andhra Pradesh undoubtedly possesses jurisdic-
tion over claims relating to inward and outward cargo. In the circumstan-
ces, the preliminary objection to the jurisdiction of the Andhra Pradesh E
High Court was totally devoid of merits.

Accordingly, the appeal arising from SLP(C) No. 10542 of 1985 has
to be dismissed. In the light of our order dated 28th August, 1991 allowing
the Civil Appeal No. 3392 of 1991 filed by the 3rd defendant against the
order of the High Court dismissing the petition for condonation of delay- F
in presenting O.S.A.S.R. No. 39789 of 1988, the Transferred Case No. 27
of 1987 arising from the judgment of the learned Single judge decreeing
the plaintifrs suit and the 3rd defendant's appeal have to be heard and
disposed of together on the merits, and the right forum for the purpose
will be the High Court itself. In the circumstances, the Transferred Case G
No. 27 of 1987 has to be returned to the High Court.

R.M. SAHA!, J. Admirality jurisdiction, an unfamiliar branch of
jurisprudence, was the subject matter of illuminating debate in this appeal
directed against judgment of the Andhra Pradesh High Court. But what was
surprising to hear, even, in 1991 was that the admirality jurisdiction exercised H
1062 SUPREME COURT REPORTS (1992] 1 S.C.R.

A by the High Courts in Indian Republic is still governed by the obsolete
English Admiralty Courts Act, 1861 (referred hereinafter as 'the Act') ap-
plied by (English) Colonial Courts of Admiralty Act, 1890 (in brief '1890
Acf) and adopted by Colonial Courts of Admirality (India) Act, 1891 (Act
. XVI of 1891). Yet there appeared no escape from it, notwithstanding its
B unpleasant echo in ears. The shock was still greater when it transpired that
this state of affairs is due to lack of legislative exercise, even, when in wake
of decision of this Court in State of Madras v. CG.Menon & Ors., (1955] 1
S.C.R. 280, that 'Article 372 of the Constitution cannot· save this law (Fugitive
Offenders Act 1881 ') because the grouping is repugnant, to the .concept of
a sovereign democratic republic.', the Law· Commission in its Fifth Report
C on British Statutes applicable to India went into detail on scope of Article
372 of the Constitution and observed that the British statutes which were
expressly applicable t\) India because India was a, 'British possession' are
still supposed to be applicable to India witrout any change in the context,
therefore, it impressed upon the urgency as far back as 1957 .to enact, 'own
D laws on the subject matter of those statutes where it is necessary to do so and .
take legislative action making it clear that these statutes are no longer
applicable to India.' I~ pursuance of this recommendation exercise was
undertaken and (The) British Statutes (Applicable to India) Repeal Act
1960 (Act 57 of 1960) was enacted on 26th December 1960 repealing as many
as 259 statutes mentioned in the Schedule. But the Admirality jurisdiction
E remained untouched. In respect of Colonial Courts of Admiralty Act the
recommendation of the Commission was that, 'The necessary substantive
provisions of the English Statute may be incorporated into our Act XVI of
1891 so as to make it the comprehensive Indian law relating to courts of
admirality.' Unfortunately. nothing was done. Neither the law was made
F up-to-date and brought in line with international conventions on maritime
law passed in 1952 etc. nor even the salient features of English law as (

amended by Administration of Justice Act, 1920, and 1956 were adopted.
And rights and interests of citizen of the independent sovereign state con-
tinue to be governed by legislations enacted for colonies by the British
Parliament. Various provisions in 1890 Act have been 'rendered not only
G anomalous but even derogatory to the sovereignty of the State. No further
need be said except to express the hope that the unfortunate state of affairs
shall be brought to end at the earliest.
Be. that as it may the intricate· issue of Admiralty jurisdiction of the

H " · Bracket supplied.
ELISABETH v. HAR WAN INVESTMENT [SARAI, J.] 1063

Andhra Pradesh High Court a successor of High Court of Madras, to A
entertain a suit for° arrest of a foreign ship for tort committed by the owner
or master of the ship while carrying cargo outside India has to be decided
on the law as it stands. Entire thrust of attack, against direction by the
High Court for .arrest of the foreign ship, was found on absence of any
provision in 1861 Act empowering the High Court to exercise jurisdiction B
over any claim by the owner or consignee of India in respect of bill of
lading of any goods carried out of any Indian port in any foreign ship. True
Sections 5 to 8 and 10 to 11 conferring jurisdiction on High Court of
Admiralty do not provide for it. Section 6 is confined to, 'any claim by the
r owner or consignee or assignee of any Bill of Lading of any goods carried
into any port in England or Wales in any ship {to be read as India by virtue C
of pro~so to sub-section 3 of Section 2 of Colonial Courts of Admiralty
Act 1890*) for damage done to the goods or any part thereof by the
Negligence or misconduct of or any breach of duty'. But this Acthad no
application till 1890. Before it the High Court of Madras enjoyed Admiral-
ty jurisdiction .under the Madras Supreme Court Act, then Letters Patent
of 1862 and 1865. Finally it came to be governed by 1890 Act, enacted, to D
amend the law respecting to exercise of Admiralty jurisdiction in British
possession.' It was under sub-section {1) of Section 2 of this Act read with
Section 2 of 1891 Act that the then Presidency High Courts, being courts
of unlimited civil jurisdiction, were-declared court of Admiralty. Sub-sec-
. tion ·(2) of Section 2 of 1890 Act spelt out the jurisdiction of Admiralty E
courts. It reads as under :-

. "{2) The jurisdiction of a Colonial Court of Admiralty shall,
subject to the provisions of this Act, be over the like places,
persons, matters, and things, as the Admiralty jurisdiction of
the High Court in England, whether existing by virtue of any F
statute or otherwise, and the. Colonial Court of Admiralty may
exercise such jurisdiction in like manner and to as full an extent
as the High Court in England, and shall have the same regard
as that Court to international law and the comity of nations."

Each part of the sub-section is inclined towards expanding jurisdiction. It G
not only declared those over which the court could exercise jurisdiction but
it also amplified the manner .and extent of exercise of jurisdicti~n. · It was
made co-extensive with the jurisdiction exercised by the High Court in
Engl.and. Use of the expression, 'existing by virtue of any Statute or
Bras~et supplied.
H
1064 SUPRE!llE COURT REPORTS [1992] 1 S.C.R.

A otherwise', widened the operative field extending the limit and authority to
exercise jurisdiction beyond any existing statute, to custom practice or in
any other manner in which it could be exercised. It was recognition of
wide jurisdiction exercised by the High Court of England.

B What then was the jurisdiction that.the Court of England exercised in
1890 ?· The law of Admiralty was developed by English courts both as a
matter of commercial expediency and due to equity and justice. Originally it
was a part of common law jurisdiction, but the difficulty of territorial limita-
tions, constraints of common law and the necessity to protect the rights and
interests of its own citizens resulted in growth of maritime lien a concept
C distinct from common law or equitable lien as it represents a charge on
maritime property of a nature unknown alike to the common law or equity.
The Privy Council explained it as 'a claim or privilege upon a thing to be
carried into effect by legal process.* Law was shaped by exercise of discre-
tion to what appeared just and proper in the circumstances of the case.
D Jurisdiction was assumed for injurious act done on high seas and the scope
was extended, 'not only to British subjects but even to aliens.** Maritime
law has been exercised all over the world by Maritime powers. In England it
was part of Municipal law but with rise ofBritain as empire the law grew and
it is this law, that is, 'Maritime Law that is administered by the Admiralty
Court'***. From the Maritime law sprang the right known as Maritime lien
E ascribing personality to a ship for purposes of making good loss or damage
done by it or its master or owner in tort or contract. In England it grew and
was developed in course of which its scope was widened from damage done
by a ship to claims of salvour, wages, bottomrey, supply of necessaries and
even to bills of lading. Its effect was to give the claimant a charge on res from
F the moment the lien arose which follows the res even if it changed hands. In
other words a maritime lien represented a charge on the maritime property.
The advantage which accrued to the. maritime lienee was that he was
provided with a security for his claim up to the value of the res. The essence
of right was to identify the ship as wrongdoer and compel it by the arrest to
make good the loss. Although the historical review in England dates back to
G the 14th Century but its statutory recognition was much later and 'maritime
law came to jurisprudential maturity in the first half of the 19th Century'.****

.. The Bold Buccleugh. (1851) 7 Moo. P.C. 267.
The Hailey, LR 2 PC 193 .
••• Halsbury's Laws of England, IVth Edn .. Vol. 1.
H *"*" MaritimeLiensbyD.R Thomas.
ELISABETH v. HAR WAN INVESTMENT [SAHAI, J.) 1065
i
And the first statutory recognition of such right came in 1840 when the A
Admiralty Court Act of 1840 was enacted empowering the admiralty court to
decide all questions as to the title or ownership of any ship or vessel or the
procedure thereof remaining in the territory arising in any cause of posses-
sion, salvage, damage, wages or bottomrey. By clause (6) of the Act jurisdic-
tion was extended to decide all claims and demands whatsoever in the nature
B
of salvage for services rendered to or damage received by any ship or sea
going vessel or in the nature of towage or for necessaries supplied to any
foreign ship or sea-going vessel and the payment thereof whether such ship
or vessel may have been within the body of a country or upon the high seas at
1
the time when the services were rendered or damage received or necessary
furnished in respect of such claims. But the most important Act was passed C
in 1861 which expanded power and jurisdiction of courts and held the field
till it was replaced by Administration of Justice Act, 1920. The importance
of the Act lay in introducing the statutory right to arrest the res on an action
in rem. Section35 of the 1861 Act provided that the jurisdiction by the High
Court of Admiralty could be exercised either by proceedings in rem or D
proceedings in personam. 'The essence of the rem in procedure is that 'res'
itself becomes, as one might say, the defendant, and ultimately the 'res' the
ship may be- arrested by legal process· and sold by the Court to meet the
plaintiffs claim. The primary object, therefore, of the action in rem is to
satisfy the claimant out of the 'res'*. If the 1840 Act was important for
providing statutory basis for various types of claims then 1861 Act was a step E
forward in expanding the jurisdiction to claims of bill of lading. Section 6 of
the Act was construed liberally so as to confer jurisdiction and t_he expres-
sion ·'carried into any port was' was expanded to mean not only when the
goods were actually carried but even if they were to be carried.** Further
.,. the s_ection was interpreted as providing additional remedy for breach of
F
contract.*"* By the jurisdiction Act of 1873 the court of Admiralty was
merged in High Court of justice. Result was that it obtained jurisdiction over
all maritin1e cases. Therefore, whatwas covered by enactments could be
taken cognisance of in the manner provided in the Act but there was no bar
in respect of any cause of action which was otherwise cognizable and arose
in Admira.lity. Section 6 of 1861 Act was confined to claim by the owner or G
consignee or assignee of any bill of lading of any goods carried into any port

Maritime Law by Christopher Hill.
1l1e Ironsides, 161 English Reports 205. The St. Cloud. 167 English Reports 269, The
.,.- Noiway. 167 English Report 347.
** * The Ironsides, 167 English Reports 205. H
1066 SUPREME COURT REPORTS [1992] 1 S.C.R.

A in England or Wales (to be read as India). But it did not debar any action or
any claim by the owner or consignee or assignee of any bill of lading in respect
of cargo carried out of the port. Even if there was no provision in 1861 Act,
as such, the colonies could not be deprived under 1890 Act from exercising ·
jurisdiction on those matters which were not provided by 1861 Act but could
B be exercised or were otherwise capable of being exercised by the High Court
of England. 'The theory was that all matters arising outside the jurisdiction
of con¢ron law i.e. outside the body of a country were inside the jurisdiction
of Admiralty'*, 'That this court had originally cognisance of all transaction
civil and criminal, upon the high seas, in which its own subjects were con- ·'(
cerned, is no subject of controversy'**. To urge, therefore, that the Ad-
C mirality court exercising jurisdiction under 1890 Act could not travel beyond
1861 Act would be going against explicit language of the Statute. Even now,
the Admiralty jurisdiction of the High Court of Justice in E9gland is derived
'partly from statute and partly from thi: inherent jurisdiction of
Admiralty'***. Observations of Lord Diplock in the Jade*••• that Admiral-
D ty j.urisdiction was statutory only have to be understood in the context they
were made. By 1976 the statutory law on Admiralty had become quite com-
prehensive. Brother Thommen, J., had dealt with it in detail. ·Therefore
· those observations are not helpful in deciding the jurisdiction that was exer-
cised by the High Court in England in 1890.

E From what has been narrated above it is apparent that law of
Admiralty progressed gradually from ordinary courts, to courts of Admiral-
. ty and ultimately to High Court commencing in commercial expediency,
equity and justice and ending with statutory enactments covering entire
field from collision on ships to cargo even. All this was existing when 1890
Act was enacted. But the statutes of 1840 and 1861 were not exhaustive
F and English courts could take cognizance for various wrongs either in tort r
or contract. Therefore, when colonial courts were conferred jurisdiction
'it was not restricted or confined to statutes, as the power was being
conferred on High Courts which were, then and even now, not only courts
of unlimited dvil jurisdiction but higher courts possessed of every jurisdic-
G lion which was not expressly or impliedly conferred on other courts. The

Carter Histoty of English Courts.
•• Lord Stowell in 'The Hercules' 2 Dod. 371.
••• Halsbury's Laws of England, IVth Edn. Vol.1.
H •••• TheJade 1976 (1) All Eng. Reports 921.
ELISABETH v. HARWAN INVESTMENT [SAHA!, J.] 1067

word 'otherwise' literally means in a different way. Effect of its use in 1890 A
Act in law, was to confer not only statutory jurisdictioh possessed of by
English courts but all that which was being exercised or was .capable of
being exercised either under custom and practice or for sake of equity and
justice. In the Iron Sides (supra) it was obser>ed that Act of 1861 was
passed not because the power or jurisdiction prior to it did not exist but B
no one ventured to exercise it. No such restriction was placed on exercise
of power under 1890 Act. Rather the Act permitted exercise of it and that
too to its fullest extent. This deliberate expansion of power and jurisdiction
after existence of two statutes for nearly thirty years was founded on
experience and necessity of arming the courts for every dispute that could
arise relating to Admiralty jurisdiction, as the law on Admiralty was a C
growing law. Its development could not be stiffled by its very nature. It
was with this intention that the Parliament used the word, 'otherwise' in
1890 Act. No word in a statute has to be construed as surplus-age. Nor
it can be rendered ineffective qr purposeless. Courts are required to carry
out the legislative intent fully and completely. The two legislations of 1840 D
and 1861 took care of those actions which appeared to be settled till then.
But they did not close the door for the growth of law. They were enacted
to 'improve the Admiralty practice' as the jurisdiction which were con-
ferred by the statutes were already being exercised. Action in personam
or rem were not unknown. It was provided statutory base only. Statutes E
till 1920 in England were not creation of new rights but recognition of what
was existing by practice or custom. It can thus be safely inferred that the
jurisdiction to entertain a claim for tort or breach of contract by owner or
master of ship while carrying cargo outside the port could be exercised or
was capable of being exercised in 1890 by the High Court of England if .
occasion arose. The rationale of e"ending jurisdiction in Admirality over F
cargo carried into the port has been existence of a right in owner or
consignee arising out 9f contract or agreement entered between him and
the master or owner of the ship. It was the enforcement of the right which
was safeguarded by providing a remedy to arrest a ship if the goods were
carried into any port. Sarne rationale applies to redress the owner of bill G
of lading if the master of the ship in breach of agreement entered into any
port committed tort by acting against it in course of outward journey. Such
breach would have been actionable and a suit could be filed in the court
where agreement was entered. Basis of Maritime Law has been necessity
to provide remedy for wrong done on high seas. Inclusion or expansion of H
1068 SUPREME COURT REPORTS [1992] 1 S.C.R.

A jurisdiction was in relation to any cause which could have been cognisable
under ordinary law. Bottomrey, salvage, seaman wages or towage are all
causes for which action could be brought in court of law but their enfor-
cement was rendered illusory with disappearance of the person beyond
territorial waters. To overcome this difficulty this jurisdiction was created
B making it actionable .against person and finally the res itself. What was
basic was the existence of cause of action, arising out of tort or contract In
relation to the master or owner of the ship. Applying this test the cause of
action arose in Indian territory and if the owner of the ship would have
remained in this country a suit for breach of contract could have ·been filed.
Therefore the owner of bill of lading was not precluded from approaching
C the Admiralty court for redress when the foreign ship which was guilty of
violations appeared in Indian waters. On this construction the colonial
courts could exercise the jurisdiction in respect of cargo going outside the
port in exercise of jurisdiction under Act of 1890 not on statutes but as the
High Court of England could exercise such power. Emphasis on absence
D of any instance in which English courts assumed jurisdiction in respect of
goods carried out of English port was searching for existence of jurisdiction
not in law but on precedent. Test is not whethef>the jurisdiction was ever
exercised by English courts but whether it was capable of being exercised.
"If it could, then colonial courts were empowered to exercise it. Reliance
E was placed on Yuri Maru*, a dicision because of which the courts in
Bombay and Calcutta got stuck, and could not see beyond 1861 Act.
Distinction on facts, apart, the court was primarily concerned if the
jurisdiction of colonial court expanded or dimunited by change of jurisdic-
tion of High Court of England by different· enactments passed from time
to time. Incidentally it was also observed that there was conflict for long
F · even in England on advantage of extending the process in rem and if a port
of call could be benefited by existence of a power in all and sundry to arrest
vessels found within its limits. This observation cannot be construed as
determinative of limited jurisdiction possessed by the courts. No effort was
made in the decision to adjudicate upon the impact of the expression or
G 'even otherwise'. Rather it turned on impossibility of automatic extension
of jurisdictio~ of colonial court to exercise power under the English law
enacted subsequently because of tl:e use of word 'existing' in 1890 Act.
Without entering into the controversy if 1890 Act was a legislation by

H J 927 Appeal Cases 906.
ELISABETII v. HARWAN INVESTMENT [SAHA!, J.J 1069

reference or by incorporation and their consequences, on which arguments A
were addressed in extenso, suffice it to say that in absence of any considera-
tion of the expression 'otherwise' this Court does not find any difficulty in
construing the expression as permissive of jurisdiction. Legislations may
create a right or it may recognise one founded on custom or practice.
Admiralty statutes in England fell in latter category. In such legislations B
the background of enactment, the necessity to codify it, the purpose sought
to be achieved by it all become relevant. Admiralty jurisdiction in England
was rooted in remote past. It developed and expanded with rise and
growth of Britain and its recognition as a superior maritime power. Law
arid practice revolved round it. Right to proceed against owner of ship for C
wrongs done on high seas was accepted and followed. Statutes of 1840 and
1861 provided legislative base only. Viewed in the background of enact-
ment of 1890 it would be too aritificial to confine the exercise of power
by the High Courts in Admiralty to what was contained in 1861 Act. Even
otherwise for deciding the jurisdiction exercised by the High Court in India
founded on jurisdiction exercised by the High Court of England it is not D
necessary to be governed by the decision given by English courts. Law
develops by pragmatic approach to problems arising under an Act and not
by abdication or surrender, 1890 Act is an unusual piece of legislation
expansive in scope, wider in outlook, opening out the wings of jurisdiction
rather than closing in. It's authority and power to exercise jurisdiction E
was linked with power exercised by the High Court in England, the width
of which was not confined to statute but went deep into custom, practice,
necessity, and even exigency.

Law of 1890 apart, can the Indian High Courts after 1950 be denied F
•
jurisdiction to arrest a foreign ship to satisfy the claim of owner of a bill
of lading for cargo taken outside the country? Without entering into any
comparative study of jurisdiction of High Court of England and the High
Courts in our country the one basic difference that exists today is that the
English courts derive their creation, constitution and jurisdiction from G
Administration of Justice Act or Supreme Court Act but the High Courts
in our country are established under the Constitution. Under it Article 225
preserved the jurisdiction, including inherent jurisdiction, which existed on
the date the Constitution came into force and Article 226 enlarged it by
making it not only a custodian of fundamental rights of a citizen but as H
1070 SUPREME COURT REPORTS [1992] 1 S.C.R.

A repository of power to reach its arms to do justice. A citizen carrying on
business which is a fundamental right cannot be rendered helpless on
premise that the jurisdiction of High Courts stood frozen either under
statute of England or any custom or practice prevailing there or the High
Court of England cannot exercise the jurisdiction. Brother T.K. Thom-
B men, J. , while dealing with right of rem and in personam has considered
the justification for conferment of such right to a claimant in respect of a
merchant ship travelling from port to port. Can it be successfully urged
today that such a ship or its master and owner is immune from tort or
breach of contract committed by him in respect of cargo taken out of port. t
A citizen of a colonial state may or may not but a citizen of an independent
C republic cannot be left high and dry. The construction of law has to be in
consonance with sovereignty of a state. The apprehension that assumption
of such jurisdiction would be on general attributes of sovereignty is not well
founded. This coupled with expansive jurisdiction that the High Courts
enjoyed in relation to Admiralty under 1890 Act preserved under Article
D 225 provided justification for direction to arrest the ship, for the tortious
act done by master or owner of the ship in respect of goods carried outside
the port even if there was no specific.provision like Section 6 of the 1861
Act. Entertaining a claim arising out of breach of contract in relation to
cargo taken out of any Indian port pertains to jurisdiction. It must arise
E out of Statute. But the power to direct arrest of a ship in exercise of the
jurisdiction is one relating to competency. The High Courts in India being
courts of unlimited jurisdiction, repository of all judicial power under the
Constitution.except what is excluded are competent to issue directions for
arrest of foreign ship in exercise of statutory jurisdiction or even otherwise
to effectuate the exercise of jurisdiction. Since the jurisdiction to entertain
F a suit on tort or contract in relation to cargo going out of the country in a
ship is found to exist under 1890 Act the High Court of Andhra Pradesh
was competent to direct· arrest of the foreign ship when it appeared in India
waters. The High Court, therefore, rightly negatived the objection to issue
G direction to arrest the ship.
Necessity to add few words to the opinion of brother Thommen, J .,
arose without narrating facts or extracting sections as they have been dealt
in detail by him, both to impress upon the urgency of enacting up-to-date
law on Admiralty and to express agreement only on scope of 1890 Act as
H well as the extensive jurisdiction enjoyed by High Courts after 1950.
ELISABETH v. HARWAN INVESTMENT [SAHA!, J.] 1071

ORDER A
For the reasons stated by us in our separate but concurring judg-
ments dated 26.2;1992, we dismiss the appeal arising from SLP(C) No.
10542 of 1985. The Transferred Case No. 27 of 1987 is returned to the
Andhra Pradesh High Court to be heard and disposed of on the merits
together with the 3rd defendant's appeal O.S.A.S.R. No. 39789 of 1988. B
We make no order as to costs.

G.N. Appeal dismissed.

,