Holding

A seaman's maritime lien for wages survives the confiscation of the vessel and cargo; the Customs Act cannot extinguish that lien, and the crew are entitled to be paid their wages from the sale proceeds.

Summary

A Panama‑registered vessel carrying Ukrainian crew entered Indian territorial waters without authorization and was arrested by the Coast Guard. The Customs Department seized the cargo and later confiscated the vessel under the Customs Act, 1962. The chief officer and other crew members filed applications seeking payment of their wages as a first charge from the sale proceeds of the vessel and cargo. The Madras High Court initially ordered payment of wages but the Division Bench reversed, holding that confiscation extinguished the maritime lien. The Supreme Court allowed the appeals, holding that a seaman's maritime lien for wages, protected by the Merchant Shipping Act, 1958 and Article 21 of the Constitution, cannot be defeated by confiscation under the Customs Act. Consequently, the crew are entitled to be paid their wages from the proceeds of the sale of the vessel and cargo.

Issues considered

The effect of confiscation of a foreign vessel under the Customs Act on the maritime lien of seamen for wages.
Whether provisions of the Customs Act, 1962 can override the statutory rights to wages under the Merchant Shipping Act, 1958.
Whether Article 21 of the Constitution protects the crew's right to livelihood against state confiscation.
Whether the crew must file a separate suit to enforce their wage claim or can rely on the existing proceedings.

Legislation cited

Companies Acts. 529(a)
Constitution of Indias. Article 21
Customs Act, 1962s. 110, s. 111, s. 112, s. 115, s. 115(2), s. 126
Merchant Shipping Act, 1958s. 138, s. 139, s. 140, s. 141, s. 144, s. 145, s. 445

Subjects

maritime lienseamen wagescustoms confiscationmerchant shipping actarticle 21admiralty jurisdictionforeign vesselsale proceedsconstitutional rightsreasonableness

Judgment

O.KONAVALOV A
V.

COMMANDER, COAST GUARD REGION AND ORS.

MARCH 23, 2006

[H.K. SEMA AND DR. AR. LAKSHMANAN, JJ.] B

Constitution of India, 1950 Article 21-Merchant Shipping Act, 1958;
Sections 138, 139, 140, 141and144-Customs Act, 1962-Sections 110, 111,
112, 115 and 126-Arrest of Foreign vessel for entering in Indian territorial C
.. waters without authorisation-Confiscation of the vessel and goods by
Revenue-Claim of wages by crew members for their wages till deportation
rejected on ground on confiscation of the vessel and goods-Application by
crew members before High Court for directions to pay wages out of sale
proceeds of goods and/or the vessel-High Court rejected the application--
Correctness of-Held, right to wages of seamen is ·protected under Article D
21-Entitlement of wages by seamen under the Merchant Shipping Act cannot
be limited by the provisions of the Customs Act-Maritime lien of wages of
seamen cannot be extinguished on confiscation of the vessel and the goods in
it-Hence, the crew member~ are entitled to wages till deportation from sale
proceeds of goods/vessel. E
Respondent-Coast Guard arrested a foreign vessel when it entered
in Indian territorial waters without authorisation. The Revenue seized the
vessel and the goods under section llO of the Customs Act, 1962.
Appellant-Chief Officer and other crew members were arrested. The
Revenue issued a show cause notice to the appellant to explain why the F
goods cannot be confiscated and penalty should not be imposed on the
persons under section 112(a) of the Customs Act, 1962. The appellant
replied to the show cause notice contending that the crew members were
not involved in improper importation of goods and prayed that they be
paid their wages and the goods dealt with according to law. G
The appellant filed an application before the High Court against the
respondents seeking directions to pay wages as a first charge to the crew
members of the vessel from the sale proceeds of the goods and/or the vessel.
A Single Judge of the High Court allowed the application of the appellant.
In the meantime, the Revenue passed an order under section 115(2) of the H
227
228 SUPREME COURT REPORTS [2006] 3 S.C.R.

A Customs Act confiscating the vessel. The respondents filed appeals before
Division Bench of the High Court which were allowed.

In appeal before this Court, the appellant contended that the action
of the State has to be based on reasonableness and it cannot deprive the
basic human rights of the appellant and crew members available under
B Article 21 of the Constitution of India; that the right of seamen to wages
is unfettered under sections 138, 139, 140, 141 and 144 of the Merchant
Shipping Act, 1958 and that it cannot be limited by section 115 of the
Customs Act, 1962; that the application made for payment of wages was
prior to confiscation; that the vessel was confiscated by the Revenue not
C for bringing contraband goods but for not complying with provisions of
Section 30 of the Customs Act; and that they suffered mental and physical
agony for not being paid wages from the date of seizure of the vessel to
the date of deportation.

Respondents contended that the Maritime lien is extinguished by
D wnfiscation ofvessel; that on confiscation, the vessel becom~s the property
of the Government which could not be claimed by the crew for their wages;
that the vessel carried contraband drugs and there were no claimants of
the goods of the vessel; that the owners of the vessel were untraceable and
disowned the ship; and that the entire voyage of the vessel is shrouded
E with mystery hence the wages cannot be paid to the crew members who
carried out illegal activities.

Allowing the appeals, the Court

F
HELD: I.I. A seamen's maritime lien for wages arises from the fact
of service rendered to the ship and is independent of agreement and of
personal liability on the part of the ship owner. In terms of the provisions
-
of Section 144 of the Merchant Shipping Act, 1958, the right of the sc!amen
to wages is unfettered and no limitatio11s on the entitlement to and exercise
of such entitlement have been enacted in the Act. Such a right conferred
by the statute cannot be infringed, affected or neglected except by express
G provisions to the contrary. The provisions of Section 115 of the Customs
Act, 1962 cannot be treated to the contrary. (246-F-G; 239-D-EJ

1.2. The right to wages of seamen as wages of any employee is an
integral part of the right to livelihood and is entitled to the protection
H under Article 21 of the Constitution of India. The right to dignity which
is recognised as guaranteed by Article 21 insofar as it is infringed by
0. KONAVALOV '"COMMANDER, COAST GUARD REGION 229
withholding of the means of livelihood by any means or process whatsoever A
would attract Article 21 of the Constitution of India. The action of the
State has to be based on reasonableness and it cannot deprive the basic
human rights afforded under Article 21 of the Constitution of India.
(235-C-D; 239-E-F)

1.3. Sections 115 and 126 of the Customs Act, 1962 cannot be read B
to include ex-proprietary power in regard to any property and, in
particular, a property which is subject to charges and claims, the power
to destroy and deny such charges and claims which are otherwise legal,
valid and legitimate. In the context of Maritime law, the exercise and
power under Sections 115 of 126 of the Customs Act are subject to the C
satisfaction of claims and charges created and recognized by law in all
civilized countries. Having regard to the universally recognized status of
Maritime liens and in particular, the position accorded to seamen's wages,
and having due regard to the constitutional and statutory protection of
such wages there can be no extinction of loss of such lien owing to the act
of confiscation under Section 115 read with Section 126 of the Customs D
Act, 1962. (239-G; 242-C)

1.4. Seamen who have a right to wages, which right is enforceable
against the ship can legitimately lay a claim to the payment of such wages
out of the proceeds of the ship obtained by its sale. What is material is
that the proceeds of the sale of the ship are available for sati~faction of E
the Maritime liens. The absolute character of vesting, following
conf15cation can be absolute, only against persons having proprietary right
in the ship or goods and more particularly denoting a suspension or
abeyance of such rights, till the confiscation is lifted in accordance with
law. It would be misconceived to extend the scope of such vesting to the p
point of extinction of Maritime liens particularly seamen's wages. Public
undertakings such as the port, dock or a harbour possessing statutory
power to detain and sell a ship cannot sell the res free of the liens which
have attached prior to the sale. The seamen's lien will follow the ship and
its proceeds in whatsoever hand they may come by title or purchase from
owner and the lien reattaches to the thing after sale and to whatever is G
substituted for it. Obtaining jurisdiction to the res in pursuance of
statutory powers should be put on the same footing as acquisition of the
title following the transfer of res. (242-G-H; 243-A-CJ

1.5. The power to confiscate and the consequent forfeiture of rights H
230 SUPREME COURT REPORTS [2006) 3 S. C.R.

A or interests are drastic, being penal in nature. Statutes conferring such
powers must be read very strictly. There can be no exercise of power under
such statutes by way of extension or implication. No expansive meaning
can be given therefore to Section 115 of the Customs Act, 1962. The crew
members are not responsible for the confiscation and sale of ship and the
B cargo. Since the order of confiscation passed by the Commissioner of
Customs was non-compliance with Section 30 of the Customs Act, 1962,
the scope of Section 115(2) cannot be extended and be invoked as if this is
a case of transport of contraband goods into the Indian territorial waters.
Having regard to the fact that the Maritime liens and, in particular,
seamen's wages, have a hallowed place in the Admiralty law, the benefit
C of the exception under Section 115(2) of the Customs Act should be
extended to the crew. They can enforce their liens regardless of the validity
or otherwise of the order of confiscation of the goods or the vessel. It is
open to the seamen to assail the claim of absolute forfeiture in the
Admiralty proceedings. [235-E; 243-F-G; 244-D-E-F]

D 1.6. In judicial practice, no statutory rule can even come in the way
of the implementation of any customary practice which has the force of
law. The requirement of any customary practice of have force of law is
its practice for a long time and the absence of any statutory provision
expressly prohibiting the implementation of that particular custom in
E force, the customary practice of the exercise maritime lien by the crew
members satisfies both these requirements. Thus section 115 of the
Customs Act, which talks about confiscation, will not operate to disentitle
the crew of the lien that they can exercise on the vessel for the recovery
of their wages which is an established practice in the law of the seas.
(248-C-DJ
F 1.7. The crew members have suffered a lot without wages from the
date of seizure till they were deported. They have suffered a lot of mental
and physical agony in spite of that they have not been given their wages
till date due to a narrow approach. State should always be fair and
reasonable in setting the lawful claims. The principles enshrined in Article
G 21 of the Constitution of India are equally applicable to a foreigner as it
is to a citizen. The confiscation by the Government of the vessel cannot
extinguish the pre-existing rights of the crew men. (250-E-F; 251-A-B[

M V. Al Quamar v. Tsavliris Salvage (International) Ltd. and Ors.,
[2000[ 8 SCC 278; M. V. Elisabeth and Ors. v. Harwan Investment and
H Trading Pvt. ltd. Hanoekar House, Swatontapeth, Vasco-de-gama, Goa,
0. KONA VALOV 1• COMMANDER, COAST GUARD REGION (LAKSHMANAN, J.] 23 J

[1993) Supp. 2 sec 433, relied on. A
Shewpujanrai Jndrasanrai Ltd v. The Collector of Customs and Ors.,
[1959) SCR 821; Collector of Customs, Madras and Ors. v. D. Bhoormul,
[1974) 3 SCR 833 and Bank ofBihar v. State of Bihar and Ors., [1971) Supp
SCR 299, referred to.
B
The Bold Buccleugh, (1852) 7 MOD PC 267; Neptune 161 ER 81;
RUTA (2000) 1 LLR 359; Corps and Corps v. Queen ofSouth, (1968) l LLR
182; James Sheppardv. Lemuel Taylor, 8 Led 269; Sieveright v. Allen, (1906)
2 KB 81; Austin Friars v. Strack, (1905) 2 KB 315; (1906) 2 KB 499;
Hardford Accident and Indemnity Co. 273 US 612 and The lady Durham C
(1853) 3 Hag. Adm 196, referred to.

Maritime Liens by D.R. Thomas British Shipping Laws Vol. 14; Law
by Cristopher Hill 2nd Edition 1985; Principles of Maritime by Susan
Hodges and Cristopher Hill 2001 and Halsbury Laws of England 4th Edn.
Vol. 43, referred to.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3877-3878
of 2001.

From the Final Judgment and Order dated 10.1.200 I of the Madras
High Court in O.S.A. Nos. 309 and 350 of 2000. E
R. Venkataramani, Ashok Panigrahi and Ms. V. Mahana for the
Appellant.

Ravi P. Mehrotra, Garvesh Kabra, Ms. Anil Katiyar, P. Parmeswaran,
K.J. John (for Mis. K.J. John & Co.), Ms. Sushma Suri, V.G. Pragasam and F
Subramonium Prasad for the Respondents.

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. The above two appeals were filed against
the final judgment and order dated 10.01.2001 passed by the High Court of G
Judicature at Madras in 0.S.A. Nos. 309 and 350 of 2000 whereby the High
Court allowed both the appeals filed by respondent Nos. I and 2, namely,
The Commander, Coast Guard Region (East), Chennai and Inter Cargo
Insurance Company acting as underwriters and agents for T.W. Metals Limited,
Chennai. The Owners of the vessel, Nominator Shipping Corporation
H
232 SUPRJ:ME COURT REPORTS (2006] 3 S.C.R.

A Monroviya Liberia, Chainnan, Madras Port Trust and Deputy Port Conservator,
Pondicherry were also impleaded as profonna respondents in the above
appeals. The appellants in this appeal are the crew men.

The short facts of the case are as follows:

B The vessel named Kobe Queen I also known as Gloira Kopp was
registered in Panama with its crew members belonging to Ukraine was spotted
by the Officers of the Customs Department in the Indian territorial waters. It
was noticed by the Department that the vessel was loaded with steel prodl\cts
on 22.12.1999.

C On 24.12.1999, interim order arresting the vessel was passed and a
receiver was appointed for valuing the cargo and to take possession of it. On
the same day, the master of the ship committed suicide. The crew were kept
under arrest till 01.01.2000. Due to the suit filed by the under writers for
T.W. Metals Ltd., the vessel was towed to Madras Port. On 14.01.2000, the
D learned Single Judge of the Madras High Court ordered for sale of ship. The
appellant 0. Konavalov, who was the Chief Officer, filed an application No.
633/2000 claiming wages from out of the sale of the ship. The application
was filed under Order XIV Rule 8 of the Original Side Rules read with
Section 125 of the Merchant Shipping Act, 1958 praying to direct the receiver
to pay wages to crew members out of the proceeds of the sale of the vessel.
E However, the Coast Guard moved the Division Bench of the High Court by
way of OSA No. 42/2000 seeking the stay of the sale of the ship in view of
the pending investigations. Respondent No.2 moved the Division Bench for
withdrawing their claim of arrest and sale of the vessel. The Superintendent
of Customs (Prevention), Chennai passed an order under Section 110 of the
F Customs Act, placing the vessel and cargo under seizure. They were placed
in the custody of respondent No. I. The above appeal was heard and allowed
by the Division Bench of the High Court. The High Court noted the withdrawal
of prayers by respondent No.2 and pennitted respondent No. I Coast guard to
deal with the crew, vessel and the cargo. The Commissioner of Customs
issued a show cause notice to the Chief Officer of the ship calling upon him
G to explain why the cargo cannot be confiscated and penalty should not be
imposed on the persons under Section I 12(a} of the Customs Act, 1962. The
counsel for the crew sent a reply mentioning the non-involvement of the
crew in dealing with any narcotics/drugs and prayed that the crew be paid
their wages and the cargo be dealt with according to law.

H
0. KONA VALOV 1·. COMMANDER, COAST GUARD REGION [LAKSHMANAN, J.] 233
The appellant moved three fresh applications, which are, Application A
Nos. 590/2000, 2449/2000 and 2450/2000. Application No. 2450/2000 was
filed to pay the wages from the sale proceeds of the cargo or alternatively a
direction for sale of the ship and pay the wages as a first charge. Respondent
No. I filed a counter affidavit contesting the applications. The respondents
contested the applications stating that the crew of the vessel has not filed any B
independent suit and an application for the same' is not maintainable and
since the vessel has violated the sovereignty of the Indian territorial waters
and the provisions of the Customs Act, the vessel is liable to be confiscated
and there is no question of making any first charge on the vessel.

The learned Single Judge of the High Court passed an order in the C
- above applications directing the Coast Guard Authorities and the Customs
Authorities to pay the wages lawfully due to the crew members on board of
the ship and that the crew should be deported to their country and that the
expenses should also be made by the Government Agencies out of the funds
retained by them after selling the cargo. In other respects, the High Court
dismissed the applications. It was further held that it is the duty of the D
Government Agencies to consider the legal dues payable to the crew rrien
who are already suffering and they should not be made to suffer again by
denying their legitimate wages. The Court has further observed that since the
Custom Authorities have already sold the cargo for a price of Rs.16 Crores
and the money is available with them, it is the paramount duty of the E
Government Agencies to meet the lawful claim of the crew men belonging
to a different country.

Aggrieved by the above order, respondent Nes. I and 2 filed two appeals,
namely, O.S.A. Nos. 309 and 350 of 2000 before the Division Bench of the
High Court. The Commissioner of. Customs, Madras passed an order F
confiscating the vessel absolutely under Section 115(2) of the Customs Act,
1962.

Before the Division Bench, the respondents contended the following:-

(a) · The Merchant Shipping Act, 1958 is not applicable to the foreign G
sea men.

(b) The crew members had to file an independent Suit and an
application in the pending matter is not maintainable.
(c) Since the Government has confiscated the ship the crew men
H
234 ·SUPREME COURT REPORTS (2006) 3 S.C.R.

A have no lien on the ship.
(d) The Petitioner herein who has been served with a copy of the
Order of confiscation has not challenged the same and it cannot
be set aside in the proceedings before the High Court unless it
is challenged separately before the Appellate Tribunal
B The Division Bench allowed both the appeals and held as follows:-

"Para 22: We hold that the Chief of the Ship and crew can invoke the
provisions of the Merchant Shipping Act as they are the sea men in
a ship under the Act, or in other words, the words "under this Act"
c would refer and qualify the words "the ship" and not "Employed or
engaged as a member of the crew" .
-
..... We are in entire agreement with the· Ld. Single Judge that the
provisions of the Act enables a sea man to resort to such a process
D and such process need not necessarily be an independent Civil Suit
or any other independent or separate proceeding and in appropriate
cases, it could be a step in aid in proceedings alr~ady pending at the
instance of another party"

E Referring to a judgment in The Bold Bucc/eugh (1852) 7 MOD PC 267
cited in Maritime Law by Christopher Hill, the High Court held that as per
the legal position in England it appears that Maritime lien can be defeated
where the res is transferred to a foreign Government who can plead sovereign
immunity.

F The High Court further held that there is no transfer by the owner of
the ship to a foreign G"overnment. It held that since it is a case where the
owner of a ship is deprived of the ship completely by way of penalty and the
ship has vested by virtut! of confiscation order, the State has become the
absolute owner. The High Court compared this with the category where a
Government claims sovereign immunity and held that the Maritime lien for
G wages on the ship extinguishes on the ship being confiscated by the
Government.

The High Court, however, made it clear that notwithstanding the
decision, the Chief of the ship and the crew can question the validity of the
H order of confiscation separately, since it has only considered the effect of the
0. KONA VALOV 1·. COMMANDER, COAST GUARD REGION [LAKSHMANAN, J.] 235

order as to whether the vesting is subject to the crew's Maritime lien for their A
wages.

Aggrieved by the order of the Division Bench, the appellant preferred
the above two appeals.

We heard Mr. R. Venkataramani, learned senior counsel assisted by B
Mr. Ashok Panigrahi and Ms. V. Mohana, learned counsel appearing for the
appellant and Mr. Ravi P. Mehrotra, learned counsel and others for the
contesting respondents.

Mr. Venkataramani, learned senior counsel for the appellant submitted
the following at the time of hearing:- C
(a) That the action of the State has to be based on reasonableness
and it cannot deprive the basic human rights afforded under the
Constitution of India more so under Article 21;

(b) That the judgment of the Ditision Bench is contrary to the D
principles laid down by this Court in M VA! Quamar's Case and
M V. Elizabeth's Case. In the~e cases, this Court has held that
Maritime lien is a right which continues even if the ship is taken
legally from an owner by requisition;

(c) That the crew are not responsible for confiscation;
E
(d) That in a recent decision of the Queens' Bench in the Admiralty
Jurisdiction in the Lloyds Reports in the matter of "RUTA", it
has been held that the wage claims have no alternative forms of
redressal, but for claiming it from the proceeds of the ship and
that it takes priority even to claims for salvage;
F
(e) That even though the 1926 Convention of Maritime Liens and
Mortgages has not yet been ratified by India the principles are
very well adopted in Merchant Shipping Act, 1958. Under the
Merchant Shipping Act, the wages of the crew cannot be attached
under any law;
G
(f) That the application made.by the crew members for payment of
wages for the crew has been made much prior to confiscation
and that the High Court has failed to appreciate that the right of
the crew is pre-existing right and it is a priority claim which will
have precedence over all matters and that this principle has been
H
236 SUPREME COURT REPORTS [2006) 3 S.C.R.

A well recognized in Indian and Foreign Courts widely;

(g) That the cargo fetched a huge price of approximately more than
Rs. 20 Crores due to the very good condition in which it was
maintained which credit goes to the crew of the ship;

(h) That the Division Bench failed to appreciate that the crew
B members were suffering without wages from May, 1999 till the
time they were deported by the Consulate. They have suffered a
lot of mental and physical agony. Though their entitlement for
wages has never been disputed by any of the respondents they
have not been given their wages till date due to technicalities and
c a narrow approach.

Per contra, Mr. Ravi P. Mehrotra, learned counsel for the first respondent
submitted as follows:-

(a) That the investigations were carried out and it has come to the
light that the vessel has carried narcotic drugs since traces of
D opium were detected at various parts of the ship;

(b) That as there were no claimant for the cargo, after the process of
law, the 15,000 MT steel cargo was confiscated by the
Commissioner of Customs and then sold in public auction;

E (c) That the owners had completely disowned the ship and were
untraceable after the Government Authorities detained the ship;
(d) That the auction of the steel cargo was held on July, 2000 and
the highest bid was offered for Rs.12,500/- per MT;
(e) That the Commissioner of Customs, vide order dated 26.09.2000,
F confiscated the vessel absolutely under Section 115(2) of the
Customs Act. The reasons given were:

(i) Unauthorised deviation from the route required for cargo
discharge;
(ii) Entry into Indian territorial waters without intimating
G
appropriate authorities;
(iii) Violation of customs legal formalities in receipts of
provisions/fuel clandestinely;
(iv) Changing the name and colour of vessel during voyage for
H no valid reasons.
·t-

0. KONAVALOV '" COMMANDER, COAST GUARD REGION [LAKSHMANAN, J.) 237
....
i
The Customs Authorities then auctioned the confiscated ship. A
(f) That the ship was purchased by M/s Chaudhary Industries Ship
Breakers on tender held on 21.11.200 I;

(g) That since the ship has been confiscated, the Maritime lien ceases
to exist. Quoting' the ruling in THE BOLD BUCCLEUGH (1852)
7 MOO PC 267 case, it was s~bmitted that Maritime lien ceases B
to be applicable in a situation where a Government has confiscated
the vessel and claims sovereign immunity.

(h) That the vessel was confiscated by the Customs Authorities under
Section 110 of the Customs Act, 1962. The said order has deprived
the crew members the property on which they could claim if at c
all, their wages; .

(i) That a penalty has been levied by the Government for offences
committed by the ship against the State, the involvement of the
crew members cannot be ruled out as the circumstantial evidences
and the suspicious manner in which the ship has traversed the D
globe points to some illegal activities. The owners have not till
date claimed the ship nor give any valid explanation regarding
the whole incident;

G) That the entire nature of voyage of the ship is shrouded in mystery
and, therefore, the claim of just wages is to be viewed in the E
context of the illegal activities carried out by the ship over the
period of years;

(k) That the right of the crew for wages will exist on an merchant
vessel which is due to its independent presence in international
waters. When the freedom of the vessel has been deprived by F
means of confiscation as penalty the vessel becomes sovereign
property of the confiscating Government. In such a case, the
claim for wages cannot be considered as the vessel has become
the property of the State in absolute;

(I) That at no point of time had the crew or any other agency agreed G
that the claim for wages can be attached to the ship in case the
claim on cargo is foregone.

In view of the submissions made, Mr. Mehrotra contended that the
appeal has no merits and deserves to be dismissed.
H
238 SUPREME COURT REPORTS [2006] 3 S.C.R.

A Counsel for the Union of India (Customs Department) filed a separate
counter affidavit through its Under Secretary (AS) Ministry of Finance,
Department of Revenue. Learned counsel submitted that a show-cause notice
was issued to the person calling upon them to show-cause as to why the
vessel on arrival with Indian waters had not complied with the provisions of
B the Customs Law in force and as to why the vessel had entered the Indian
territorial waters without proper filing of import general manifest required
under Section 30 of the Customs Act, 1962. As no reply was received, the
cargo was absolutely confiscated for contravening the provisions of Section
30 of the Customs Act, 1962 as unclaimed. It was further submitted that the
cargo was sold off by customs through auction and a sum of Rs.18. 75 Crores
C was realised. Since the vessel was used as a means of transport of the said
cargo, it was deemed to have smuggled the cargo into the country and by
virtue of the unauthorised entry on to Indian customs water and by not
calling on at a specified port and not filing the import manifest the said vessel
was absolutely confiscated under Section 115(2) of the Customs Act, 1962
and was sold later through tender sale for Rs.2.36 Crores to Mis Chaudhary
D Industries, Gujarat. It was further submitted that as a result of confiscation,
the property in the ship vests absolutely with the Government and that in this
view of the matter, no claim as to wages of the seamen can be entertained
by the Government of India.

E We have carefully perused the entire pleadings, all the annexures and
judgments passed by the learned single Judge and of the Division Bench of
the High Court.

The view taken by the Division Bench that consequent upon the
confiscation of the ship, the property in the ship including all interests attached
p to the ship gets forfeited does not admit of any exception, in our opinion, is
not tenable. The Division Bench of the High Court reaches the said conclusion
on the basis of the proposition that the confiscation of the goods are
proceedings in rem and that once an order of confiscation is passed, it operates
against all even if tht:y are not parties to the proceedings. Reliance was
placed upon Shewpujanrai /ndrasanrai ltd. v. The Collector of Customs &
G Ors, [1959] S.C.R. 821 and Collector of Customs, Madras and Ors. v.
D.Bhoormu/, [1974] 3 S.C.R. 833 by the Division Bench. In our view, the
reliance placed by the Division Bench is inappropriate. Neither of these cases
concern or relate to the assertion of Maritime liens or seamen's wages which
are protected both under the Admiralty Law and the Merchant Shipping
H Legislation. The said judgments also relate to goods which are found to be
0. KONA VALOV 1•. COMMANDER, COAST GUARD REGION [LAKSHMANAN, J .] 239

-- smuggled goods. They can have no manner of application to the confiscation
of the vessel, which, in our view, is subject to several rights and interests.
A

In our view, the members of the ship in question from the day of the
:.;; engagement till their deportation were lawfully in the employment of the
ship. In Maritime law, the ship or the vessel is personified and attached with
several liabilities as could be seen from M V. AL Quamar v. Tsavliris Salvage B
(International) Ltd. and Ors., [2000] 8 SCC 278 and M V Elisabeth and Ors.
v. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth,
Vasco-de-gama, Goa, [1993] Supp 2 SCC 433. One of the distinctive features
£ of admiralty practice is proceedings in rem which are against maritime property

,..;.
i.e. vessel, cargo or freight as the case may be. This rests on the principle that
the ship as the matter causing harm, loss or damage to others or to their
c
property.

The Merchant Shipping Act, 1958 (hereinafter referred to as 'the MSA')
in Sections 138, 139, 140, 141 and 144 constitute a scheme of statutory rights
towards wages which can be enforced by proceedings under Section 145. In D
terms of the provisions of Section 144, the right of the seamen to wages is
unfettered and no limitations on the entitlement to and exercise of such
entitlement have been enacted in the Act. It, therefore, follows that such a
right conferred by the statute cannot be infringed, affected or neglected except
by express provisions to the contrary. The provisions of Section 115 of the
Customs Act, 1962 cannot be treated as such provisions to the contrary. The E
right to wages of seamen as wages of any employee is an integral part of the
right to livelihood and is entitled to the protection under Article 21 of the
Constitution of India. The right to dignity, which is recognised as guaranteed
£.... by Article 21 insofar as it is infringed by withholding of the means of
livelihood by any means or process whatsoever would attract Article 21. The F
provisions of Section 144 of the MSA duly reflect this position.

This apart, provisions of Sections 115 and 126 of the Customs Act,
1962 cannot be read to include ex-proprietary power in regard to any property
and, in"particular, a property which is subject to charges and claims, the
power to destroy and deny such charges and claims which are otherwise G
legal, valid and legitimate. In other words, in the context of Maritime law the
exercise and power under Sections 115 and 126 are subject to the satisfaction
of claims and charges created and recognized by Jaw in .all civilized countries.
~

The most unique concept of all in Admiralty Jaw is the Maritime lien.
H
240 SUPREME COURT REPORTS (2006 J 3 S.C.R.

A It is a concept which is sui genesis, but for practical purposes it may be
considered as a charge upon maritime property, arising py operation of law
--
and binding the property even in the hands of a bona fide purchaser for value
and without notice, but which can only be enforced by an Admiralty claim
in rem.

B A Maritime lien "adheres to the ship from the time that the facts
happened which gave the Maritime lien. and then continues binding on the
ship until it is discharged, either by being satisfied or from the !aches of the
owner, or in any other way which, by law. it may be discharged. It commences
and there it continues binding on the ship until it comes to an end". l

c Admiralty jurisdiction all over the world recognize the existence of
Maritime liens which have evolved over years of State and judicial practice.
The existence and enforceability of such liens outside statute law is well
established. The statutory law in regard to Admiralty or Maritime claims is
not exhaustive of the subject. Courts recognize and applied such members of
O Maritime liens as capable of enforcement through Admiralty. M. V. Elisabeth
and Urs., case (supra). The above judgment very elaborately deals with the
Admiralty powers of the High Courts in India. In para 86, it has been clearly
held that 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
E 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
citizen implies the existence of the power of the court to render justice
according to law. Where statute is silent and judicial intervention is required,
Courts strive to redress grievances according to what is perceived to be
F principles of justice, equity and good conscience. (underlining is ours)

In the words of Chief Justice Marshall ((1812) 11 US (7 Cranch) 114,
143: 3 L Ed 287):

"87. The jurisdiction of courts is a branch of that which is possessed
by the nation as an independent sovereign power. The jurisdiction of
G
the nation within its own territory is necessarily exclusive and absolute.
It is susceptible of no limitation not imposed by itself... ..... " (Schooner
Exchange (The) v. M'Faddun).

88. Admiralty jurisdiction is an essential aspect of judicial sovereignity
H which under the Constitution and the laws is exercised by the High
0. KONA VALOV 1•. COMMANDER, COAST GUARD REGION [LAKSHMANAN, J.] 24 J

Court as a superior court of record administering justice in relation to A
persons and things within its jurisdiction. Power to enforce claims
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 detaining them ....

91. Admiralty jurisdiction, despite the peculiarities of its origin and B
growth - rooted as it is in history and nurtured by the growing demands
of international trade - is nevertheless a part of the totality of
jurisdiction vested in the High Court as a superior court of record,
and it is i;iot a distinct and separate jurisdiction as was once the
position in England before the unification of courts. The 1890 and C
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 separate or distinct jurisdiction, but
merely equated the Indian High Courts to the position of the English
High Court (united and consolidated as that Court has been since
1875) for the exercise of admiralty powers within the jurisdiction of D
the former. The contrary view expressed in some of the decisions of
the High Courts referred to earlier is clearly wrong.

92. 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, or inherent in it as a court of record, in respect of any maritime E
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 High Court concerned, as defined under the Merchant F
Shipping Act, 1958 (Section 3(15)) attracts the jurisdiction of the
competent court to proceed with the 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 jurisdiction, including the security furnished by him for release G
of the vessel.

Judicial opinion and text book writers hold that a Maritime lien such
as seamen's wages is a right to a part of property in the res and a privileged
claim upon a ship, aircraft or other maritime property and remains attached
to the property travelling with it through changes of ownership. It is also H
acknowledged that it detracts from the absolute title of the 'res' owners (see
242 SUPREME COURT REPORTS [2006) 3 S.C.R.

A I. Maritime Liens by D.R. Thomas British Shipping Laws Vol. 14 PP 51-67
2. Law by Cristopher Hill 2nd Edition 1985 PP I07-111 and 3. Principles of
Maritime by Susan Hodges and Cristopher Hill 200 I)

The seamen's right to his wages have been put on a high pedestal. It
is said that a seamen had a right to cling to the last plank of the ship in
B satisfaction of the wages or part of them as could be found in Neptune 161
ER 81 and also RUTA (2000) I LLR 359.

Having regard to the universally recognized status of Maritime liens
and. in particular, the position accorded to seamen's wages, and having due
C regard to the constitutional and statutory protection of such wages there can
be no extinction of loss of such lien owing to the act of confiscation under
Section 115 read with Section 126 of the Customs Act, 1962. The lien of a
Pawnee traceable to Sections 172, 173 and 176 of the Contract Act is capable
of satisfaction from property in the hands of the Government obtained even
...
by lawful seizure. In Bank of Bihar v. State of Bihar & Ors., (1971] Supp.
D S.C.R. 299. It was held as follows:

"The pawnee had special property and a li~n which was not of ordinary
nature on the goods and so long as his claim was not satisfied no
other creditor of the pawnor had any right to take away the goods or
its price. After the goods had been seized by the Government it was
E bound to pay the amount due to the plaintiff and the balance could
have been made available to satisfy the claim of other creditor of the
pawnor. But by a mere act of lawful seizure the Government could
not deprive the plaintiff of the amount which was secured by the
pledge of the goods to it. As the act of the Government resulted in
F deprivation of the amount to which the plaintiff was entitled it was
bound to reimburse the plaintiff for such amount which the plaintiff
in ordinary course would have realized by sale of the goods pledged
with it on the pawnor making a default in the payment of debt."

Seamen who have a right to wages, which right is enforceable against
G :he ship can legitimately lay a claim to the payment of such wages out of the
proceeds of the ship obtained by its sale. In our view, it is immaterial as to
why and by what process brings up the ship for sale either by way of
proceedings in rem or otherwise. What is material is that the proceeds of the
sale of the ship are available for satisfaction of the Maritime liens. The
H absolute character of vesting, following confiscation can be absolute, only
0. KONAVALOV 1•. COMMANDER, COAST GUARD REGION (LAKSHMANAN, J.] 243
against persons having proprietary right in the ship or goods and more A
particularly denoting a suspension or. abeyance of such rights, till the
confiscation is lifted in accordance with law. It would be misconceived to
... extend the scope of such vesting to the point of extinction of Maritime liens
particularly seamen's wages. It is equally well settled that public undertaking
such as the port, dock or a harbour possessing statutory power to detain and B
sell a ship cannot sell the res free of the liens which have attached prior to
the sale [see Corps & Corps vs. Queen of South (1968] I LLR 182]. The
seamen's lien will follow the ship and its proceed in whatsoever hand they
may come by title or purchase from owner and the lien.reattaches to the thing
after sale and to whatever is substituted for it. [see James Sheppard vs.
Lemuel Taylor 8 Led 269 see also para 1907 Vol.43 (2) Halsbury Laws.of C
England 4th Edn. Re-issue] Obtaining jurisdiction to the res in pursuance of
statutory powers should be put on the same footing as acquisition of the title
following the transfer of res.

Section 141 of the MSA "enables the seamen to receive certain amount
of wages plus compensation by reason of the wreck, loss or abandonment of D
the ship among other reasons. Destruction of a neutral ship by a belligerent
State has been said to constitute loss [see Sieveright v. Allen, (1906) 2 KB
81] and further where unknown to the crew the vessel is carrying contraband
of war, the crew's tight to wages does not cease with the capture of the ship.
See Austin Friars'v: Str(ick, (1905] 2 KB 315; 1906 2 KB 499]
E
POWER TO CONFISCATE

The power to confiscate and the consequent forfeiture of rights or
interests are drastic, being penal in nature. Statutes conferring such powers
must be read very strictly. There can be no exercise of power under such F
statutes by way of extension or implication·. No expansive meaning can be
given therefore to Section 115 of the Customs Act merely from the dictionary
meaning the word absolute as has been done by the Division Bench of the
High Court.

Since the order passed by the Commissioner of Customs proposed G
confiscation not on the ground of detection or seizure of any contraband
which is sought to be brought into the territorial waters but for reasons of
non-compliance with· Section 30 of the Customs Act, 1962. The scope of
Section 115(2) cannot be extended and be invoked as if this is a case of
transport of contraband goods.
H
244 SUPREME COURT REPORTS [2006) 3 S.C.R.

A It is evident that because of the cargo which was being carried by the
Ship (namely Steel) was treated as smuggled goods for reasons of non-
compliance with Section 30 of the Customs Act, the confiscation of the Ship
ensued owing to the confiscation of the goods. Sub-section (2) of Section 115
provide for relief against confiscation if it is established by the owner or the
person in charge of the conveyance that the conveyance has been used for the
B prohibited purpose without their knowledge or connivance. The conclusion
drawn by the Commissioner is set out below:-

"When the master is in command of the vessel, the Chief Officer or
the other members of the crew have no say in the decisions of the
Master and as such, I do not find any justification for imposing
c penalties either on the Chief Officer or on the other members of the
crew."

Having regard to the fact that the Maritime liens and, in particular,
seamen's wages, have a hallowed place in the Admiralty law, the benefit of
D the exception under Section 115(2) should, in our view, be extended to the
crew. •

It was argued that the appellant need not independently question the
legality of the confiscation of the ship. We have already seen the order
passed by the Commissioner of Customs. The benefit of exoneration was
E given to the crew by the Commissioner of Customs. Therefore, in our view,
they can seek an exception to the absolute failure of the ship on the basis of
provisions of Section 115(2) of the Customs Act. They can enforce their liens
regardless of the validity or otherwise the order of confiscation of the goods
or the vessel. In our opinion, it is open to the seamen to assail the claim of
F absolute forfeiture in the Admiralty proceedings. It has been held in 273 US
612, Hardford Accident and Indemnity Co.]

"Where a court of equity has obtained jurisdiction over some portion
of a controversy. it may and will in general proceed to decide the
whole issues and award complete relief even where the rights of
parties are strictly legal and the final remedy granted is of the kind
G which might be conferred by a court of law."

SUBMISSIONS BEFORE THIS COURT ?
The appellants claimed that. the High Court has failed to
appreciate the principles laid down in the A.L. Quamar and M.V.
H
0. KONAVALOV "·COMMANDER. COASTGUARD REGION [LAKSHMANAN, J.] 245
Elizabeth case. (notwithstanding the fact that the order of arrest A
of the ship ceased to be in force by virtue of the withdrawal of
the claims for the arrest of the vessel and sale of the vessel and
notwithstanding that the suit which was originally suit in rem has
now become suit in personam, this Court continues to have the
power, authority and jurisdiction to consider the said application B
on merits and dispose it of. This was the view taken by this
Court in the case of Elizabeth). (This Court in the case of M VAL
Quamar v. Tsavliris Salvage (International) Ltd, where the court
noted that, there are two attributes to maritime lien, (i) right over
a part of property in the res, (ii) a privileged claim upon a ship
in respect of services rendered to or injury caused by that property. C
Maritime lien attaches to the property in the event the cause of
action arises and remains attached. Further the court observed
that the lien continues even if the ship is taken legally from an
owner by requisition). ?

• It was argued by the appellant, quoting Sectfons 138, 139, 140 , D
141 and 144, that the right of the seaman to wages is unfettered
and no limitation on the entitlement is under the Merchant
Shipping Act. Therefore Section 115 of the Customs Act which
talks about confiscation will not operate to the contrary. ?

Another argument that was raised by the appellant in the present E
appeals is that the right to wages of seamen as wages of any
employee is integral to Article 21 of the Constitution, which

-
talks about the right to life and liberty of every individual.
Therefore it can be safely concluded that section 144 of the
Merchant Shipping Act and Article 21 of the constitution is
tantamount. In this respect the appellants referred to Bank of F
Bihar v. State of Bihar (supra) case which laid down that the
right to wages out of proceeds of the ship obtained after sale is
available with the crewmen of the ship if their wages are not
paid.?

* The appellants referred to Section 141 of Merchant Shipping G
Act, which enables seamen to receive certain amount of wages
and compensation by reason of the wreck, loss or abandonment
of the ship among other reasons. Also the provision contemplates
a situation where the crew is unaware that the vessel they are
working in is carrying contraband goods; the crew's right to· H
claim will survive even after the vessel is arrested or captured.?
246 SUPREME COURT REPORTS [2006] 3 S.C.R.

A * The appellants argued that the reliance "placed by the Division
Bench on Shewpujanrai lndrasanrai Ltd. (supra) and Collector
of Customs, Madras & Ors. (supra) decisions in holding that,
after order of confiscation of a vessel and goods is passed, it
operates against all even if they are not parties to the proceedings,
is inappropriate because neither of the above cited cases concern
B or relate to the assertion of maritime liens or seamen's wages
which are protected both under the Admiralty law and the
Merchants Shipping legislations. Since the order passed by the
Commissioner of Customs proposed confiscation not on the
ground of detection or seizure of any contraband goods which is
c sought to be brought into the territorial waters but for reasons of
non-compliance with section 115 (2) cannot be extended and be
invoked as if this is a case of transport of contraband goods.

OBSERVATION

D It has been long recognized that under the general maritime law as
administered in the English Court of Admiralty, a seaman possesses a maritime
lien in respect of a claim for wages. However, till the present date this kind
of lien has never been expressly incorporated into the merchant shipping
legislation [D.R. Thomas, Maritime Liens, Vol: 14, British Shipping Laws,
Steven & Sons, 1980].
E
Statutes enlarging the jurisdiction of the court to entertain claims for
wages have been construed by the courts as impliedly extending the ambit of
the lien [ibid, p: 174]. Therefore the jurisdiction of the court and the existence

F
of a maritime lien are coterminous.

A seaman's maritime lien for wages arises from the fact of service rendered
-
to the ship and is independent of agreement and of personal liability on the
part of the ship owner. Section 16 (I) of the Merchant Shipping Act, 1970
provides that, 'A seaman's lien, his remedies for the recovery of his wages
shall not be capable of being renounced by any agreement'.
G
According to English Law, it is customary to regard the following causes of
action as conferring a maritime lien,

(i) damage resulting from a collision

(ii) bottomry
H
0. KONA VALOV 1·. COMMANDER, COAST GUARD REGION (LAKSHMANAN, I.I 24 7

(iii) salvage A
(iv) wages of seamen

(v) ship's masters wages and disbursements

(vi) fee and expenses incurred by a receiver of wreck

A Convention had come into place in 1993 which dealt with Maritime B
Regulations, however, the Convention does not define maritime liens but
only listed them under Article 4 (convention Liens) namely:-?

* master and crew wages including costs of repatriation and social
in·surance contributions ?
c
* claims for loss of life or personal injury in direct connection
with the operation of the vessel ?

* salvage ?

* claims for port, canal and other watering dues and pilotage dues?
D
* claims based on tort arising out of physical loss or damage caused
William Tetly in "Maritime Claim and Liens" observed that, 'the
seaman's lien is a true traditional maritime lien. The key is service
to the ship, the lien is not dependant on who hired the seaman,
be it the owner of the vessel or not. Thus seamen were granted
a lien even where they were employed by the master or not...' E
Maritime lien of the crewmen attaches to the ship in respect of which the
employment service is rendered including the vessels tackle, apparel and
furniture. In the words of Sir John Nicholl, "If any portion of the ship be
saved, the mariner has a lien on the thing for wages". [The Lady Durham
(1853) 3 Hag. Adm 196, p:201]. The lien extends to freight as well including F
freight payable by sub-charterers. Therefore in case of any deficiency in the
proceeds from the sale of the vessel the freight can be called to the court
[D.R. Thomas, "Maritime Liens", p: 181]. The ship however represents the
first charge and the lien on the freight is only consequential, therefore if there
is no lien on the vessel there can be no lien on the freight. However there is G
no lien for wages on the cargo [Ibid, p: 182].

Therefore, in the fact situation of the present case, the crewmen
definitely, by virtue of them being crewmen have a lien on the vessel and are
entitled to claim such wages that are due to them. The rationale being wage
lien arises from service rendered to the ship. Thus, it can be said that the H
248 SUPREME COURT REPORTS [2006j 3 S.C.R.

A order of the single judge which ordered the payment of wages for the crewmen
from the proceeds from the sale of cargo is wrong. but again the order of the
division bench saying, once the order of confiscation of the vessel is passed
the crewmen cannot exercise any lien on the vessel even to get their wages
is also wrong.

B There exists a maritime lien on the vessel of its crew as established by
judgments and authorities earlier cited. And also as understood maritime lien
is a concept that evolved through the ages by way of customs prevailing in
the law of the seas, no legislation specifically provides for maritime lien to
the crew on the vessel. And it is very clear in judicial practice that no
C statutory rule can ever come in the way of the implementation of any customary
practice which has the force of law. The requirement for any customary
practice to have force of law is its practice for a long time and the absence
of any statutory provision expressly prohibiting the implementation of that
particular custom in force, the customary practice of the exercise maritime
lien by the crew members satisfies both these requirements. Thus Section 115
D of the Customs Act which talks about confiscation will not operate to disentitle
the crew of the lien that they can exercise on the vessel for the recovery of
their wages which is an established practice in the law of the seas.

Also the reliance placed by the division bench on [ 1959] SCR 821 and
[1974) 3 sec 833 decisions in holding that, after order of confiscation of a
E vessel and goods is passed, it operates against all even if they are not parties
to the proceedings, is inappropriate as stated by the counsel for the appellants
before the High Court because neither of the above cited cases concern or

-
relate to the assertion of maritime liens or seamen's wages which are protected
both under the Admiralty law and the Merchants Shipping legislations. Since
F the order passed by the Commissioner of Customs proposed confiscation not
on the ground of detection or seizure of any contraband goods which is
sought to be brought into the territorial waters but for reasons of non-
compliance with Section 115 (2) cannot be extended and be invoked as if this
is a case of transport of contraband goods.

G Further, the right to wages of seamen as wages of any employee is
integral to Article 21 of the Constitution, which talks about the right to life
and liberty of every individual. Also Section 144 of the Merchant Shipping
Act states that the right of the seaman to wages is unfettered and no limitation
on the entitlement is under the Merchant Shipping Act. Therefore it can be
H safely concluded that Section 144 of the Merchant Shipping Act and Article
0. KONA VALOV r. COMMANDER, COAST GUARD REGION [LAKSHMANAN, J.] 249
21 of the Constitution is tantamount. In this respect the appellants referred to A
Bank of Bihar v. State of Bihar case (supra) which laid down that the right
to wages out of proceeds of the ship obtained after sale is available with the
crewmen of the ship if their wages are not paid which is integral to the right
to life and liberty guaranteed as a fundamental right to every individual under
the Constitution.
B
Judicial Review and Court craft in environmental adjudications, apart
from open and shut cases in the traditional law of nuisance is basically a
practice of forging fellowship and a mutuality of concern extended to strangers
in nature and in one's own community. There will thus be no excluded
categories of State Policy or Practice which can claim exemption from judicial C
consideration. A vivid illustration of how morality informs the subjects'
presentation of their disputes and the King's ·morality in resolving them is
given in the story of a fanciful meeting between Alexander the Great, and the
legendary King Katzya, ruler of a fabulous land beyond the dark mountain:

The visiting Alexander bypassed Katzya's gold and silver but wished D
to see 'your customs, your behaviour, and how you administer justice'.
The conqueror then watched King Katzya heard a case between the
buyer and the seller of a field in which hidden treasure had been
found. Each disclaimed the treasure, not having bargained for it in
the sale. After hearing their briefs, the king found that one man had
a son and other a daughter. He arranged their betrothal to one another E
and bestowed the trove on them. jlexander, laughing, was asked
how he would have ruled on such a case in his own land.
I

I would have executed both of them and confiscated the tr~asure". So
King Katzya set out a meal all of gold. When Alexander objected that
he did not eat gold, the King exclaimed, with an imprecation: "Why F
then do you love it so?" He then asked whether the sun shone and the
rain fell in Alexander's country and whether there were livestock
there. On hearing that there were, he exclaimed, again with an
imprecation, "Why then it is only by the desert of those cattle that
you survive. G
Judicial Review would therefore have to be the ever sustaining
appreciation of the 'desert' of all beings in nature and all orders of nature to
the possibility of human life and the need to avoid at any cost the high
probabilities of not only the extinction of the species but destruction of the
rich and wonderful variety of Natures productions. In other words it is more H
250 SUPREME COURT REPORTS [2006] 3 S.C.R.

A urgent to see judicial review as one of the most immediate means of generating
concern for life beyond us and orders sustaining us, in the minds of people
wielding economic and social power.

CONCLUSION:

B In our opinion, the appellant and other crew members are entitled to a
fair and just treatment and the confiscation of the ship shall not be treated as
a prized catch of an enemy Ship deserving condemnation without exception.
The case on hand does not present features of clear and demonstrated
complicity of the crew. The comity of nations is a reciprocal courtesy which
C one member of the family of nations owes to the others. In our opinion, the
crew members are not responsible for the confiscation and sale of the ship
and the cargo. It is settled law that action of the State has to be based on
reasonableness and it cannot deprive the basic human rights afforded under
the Constitution of India more so under Article 21.

D In our view, the impugned judgment is contrary to the principles of law
laid down by this Court in M V.Al Quamar 's and M V. Elizabeth's Cases
(supra). In these cases, this Court has held that Maritime lien is a right which
continues even if the ship is taken legally from an owner by requisition. The
argument advanced by learned counsel for the first respondent that the
Maritime lien is extinguished by confiscation has no force and is without any
E merit. The Courts have recognized and upheld the welfare of the citizens and
have always recognized the rights of those who are in the lowest strata of the
society especially when it comes to workers and their wages. The seamen
have suffered a lot without wages from May, 1999 till the time they were
deported by the Consulate. They have suffered a lot of mental and physical
F agony in spite of that they have not been given their wages till date due to
a narrow approach. State should always be fair and reasonable in settling the
lawful claims. It is seen from the counter affidavit filed by the Customs
Department that the ship was sold for Rs.2.36 Crores through tender sale and
the Cargo was sold off by customs through auction and a sum of Rs.18.75
Crores was realised. The seamen can claim their wages only from and out of
G the sale proceeds of the vessel.

This Court in various judgments beginning from R.C. Cooper's case
and Maneka Gandhi's case etc. have laid down that deprivation of rights is
subject to judicial review. The State action is restrained by principles of
H reasonableness, justice and fair play. The principles enshrined in Article 21
Q. KONAVALOV 1•. COMMANDER, COAST GUARD REGION [LAKSHMANAN, J.J 25 J

are equally applicable to a foreigner as it is to a citizen. The confiscation by A
the Government of the vessel cannot extinguish the pre-existing rights of the
crew men. India has become a signatory to various International Conventions
honouring the social, political, civil, economic rights of human beings. The
Directive Principles of State Policy has also become fundamental right and
justifiable.
B
The Merchant Shipping Act, 1958 has laid down exhaustive provisions
for seamen's wages. The Act itself recognizes that recovery of wages shall
not be subject to attachment. Section 445 of the Act provides that payment
of wages of Seamen can be made by sale of ship. In the Companies Act,
under Section 529(a) an overriding effect has been given and it has been C
provided that in winding up proceedings the worker's dues have priority over
other claims. The Madras High Court has failed to appreciate that India has
travelled very far from 1950 and that the Courts have given way to a dynamic
constructive approach in the aspect of social' justice while referring to
International Conventions etc. )
D
We, therefore, unhesitently hold that all th~ seamen who were on board
the vessel Kobe Queen I also known as Gloria Kopp are entitled to their full
wages and perks. We, therefore, direct the Commander Coast Guard Region
(East), Fort St. George, Chennai 600 009 and the other respondents including
the Customs Department and the concerned Department of the Government
of India to pay the wages forthwith to all the crew members who were on E
board in the vessel Ko.be Queen I also known as Gloria Kopp at any rate not
later than three months from the date of this judgment through the Consulate
of the country concerned.

We place on record our deep appreciation for the valuable assistance F
rendered by senior counsel Mr. Venkataramani and Mr. Ravi P. Mehrotra
who made our job easier.

In the result, the order impugned in these appeals passed by the Division
Bench of the Madras High Court is set aside and the appeals stand allowed.
However, we order no costs. G
B.S. Appeals allowed.