CAPTAIN SUBASH KUMAR versus PRINCIPAL OFFICER, MERCANTILE MARINE DEPARTMENT, MADRAS

Citation: [1991] 1 S.C.R. 742 · Decided: 22-02-1991 · Supreme Court of India · Bench: K.N. SAIKIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
CAPTAIN SUBASH KUMAR 
V. 
PRINCIPAL OFFICER, MERCANTILE MARINE 
DEPARTMENT, MADRAS 
FEBRUARY 22, 1991 
[K.N. SAIKIA AND MADAN MOHAN PUNCHHI, JJ.] 
Merchant Shipping Act, 1958: Section 363-Jnitiation of enquiry~,.~ 
proceeding into charges of incompetency or misconduct of Captain of 
c 
D 
Ship. 
The appellant was the Master of the Merchant ship, M. V. 
Eamaco, when it sank in the high seas nearly 232 nautical miles away 
from India. The appellant was holder of a Master's certificate issued by 
the ~Direc!or . General of Shipping, Calcutta. The ship was owned by a 
Singapore company and was flying Panamian flag. 
The first respondent filed a complaint in the Court of 14th 
J\'Ietropolitan Magistrate, Egmore, Madras against the appellant for 
·initiation of enquiry. proceedings under section 363 of the Merchant 
Shipping Act, 1958 complaining about the negligence of the appellant 
while he was the Master of the ship and further stating that the shipping 
E 
casualty had occurred due to sheer negligence and gross incompetence 
J 
of the Master when he failed to launch the life boats and life crafts ~ 
which resulted in loss of the ship, the cargo and valuable lives of sailors. 
The apJ>ellant filed a Criminal Miscellaneous Petition in the High· 
Court under section 482 of the Cr. P.C. stating that the proceedings were 
F 
by an a'!use of process of the court and the Court had no jurisdiction to 
proceed with the complaint against the appellant when there was no 
negligence on his part. 
The High Court rejected the petition and held that the Shippin_g 
Act was applicable to the instant case and ·the action of the petitioner 
G 
amounted to sheer negligence and called for investigation and inquiry 
under the Act. The appellant has appealed to this Court. 
~ 
In this court it was inter alia contended on behalf of the appellant J 
that (i} the negli_gence complained of having occurred in r!spect of a -
' 
foreign ship, flying foreign flag, at a place 232 nautical miles away from 
H 
India, and as such, outside the territorial waters of India, the-Act wa5 
742 
-
-
SUBHASH KUMAR v. MERCANTILE MARINE DEP1T. 
743. 
-~ not applicable; (ii) even if the Act was applicable it would n_pt amount to 
a shipping casualty as envisaged in part XII of the Act; and (iii) even 
assuming_ that Chapter XII _applied the-complaint could not havebeen 
filed by the appellant in the court of the 14th Metropolitan Magistrate, 
Egmore under Section 363 of the Act. 
On befalf of the respondent it was contended that the shipping 
casualty having occurred within the territorial waters of India which 
~extended up to 200 nautical miles, the Act would be applicable .. It was 
further submitted tl!at the ct?rtificate of competence issued under the 
provisions of Part VI of the Act was a valuable certificate and if the 
A 
B 
;,.,. 
holder of such a certificate of competency was alleged to have commit-
ted misconduct or acts of inconipetency there was no reason why an 
inquiry into that misconduct or incompet~ncy could not be ordere~ by C 
the Central Government to a court competent to exercise jurisdiction 
~ 
under section 361 of the Act. 
Allowing the appeal, setting aside the judgment of the High 
Court, and quashing the complaint and the proceedings against the 
appellant, this Court, 
D 
HELD: (1) The ship was not a ship owned wholly by persons each 
of whom was a citizen of India or by a company satisfying the descrip-
1 
tion under clause (b) or (c) of sub-section (2) of Section 2 of the Act. The 
~ 
ship being a Panamanian ship registered in Panama would come within 
\ , 
the purview of the Act only while it was within India including its 
1 E 
territorial waters. [749C-D] 
~ 
(2) By a notification of the Government of India dated 15th 
January, 1977 the exclusive economic zone of India had been extended 
upto a distance of 200 nautical miles into the !tea from the shore and 
other maritime zones, under the 40th Constitution Amendment Act, 
f-- 1976. [750H-751A] --
F 
(3) The concepts of territorial waters, continental shelf and exclu-
sive economic zone are different concepts and the proclamation of 
exclusive economic zone to the limit of 200 nautical miles into the sea 
from the shore baseiine would in no way extend the limit of territorial 
waters which extends to 12 nautical miles measured from the G 
}-. appropriate baseline. [7SlB] 
- -
( 4) Admittedly the ship at the time of the cas~alty was at a place 
beyond the territorial waters

Excerpt shown. Read the full judgment & AI analysis in Lexace.