LexM.V. ELISABETH AND ORS. versus HARWAN INVESTMENT AND TRADING PVT. LTD., HANOEKAR HOUSE, SWATONTAPETH, VASCO-DE-GAMA, GOA
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M.V. ELISABETH AND ORS.·
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:
A
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
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:
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.
Merchant Shipping Act, 1958 :
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.
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
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keeping in view the rights of citizens of f!ldian Sovereign Republic.
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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
E
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
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
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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 perExcerpt shown. Read the full judgment & AI analysis in Lexace.