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Showing contexts for: maritime claim in Phaethon International Co.S.A vs M V Americana on 22 June, 2015Matching Fragments
ARTICLE 3 (1) Subject to the provisions of para. (4) of this article and of article 10, a claimant may arrest either the O/AS/17/2015 ORDER particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship, even though the hip arrested be ready to sail; but no ship, other than the particular ship in respect of which the claim arose, may be arrested in respect of any of the maritime claims enumerated in article 1, (o), (p) or
(d) Learned counsel Mr. Soparkar submitted that as per clause 1(d) of Article 1 of International Convention Relating to the Arrest of Sea Going Ships Brussels, 1952, "Maritime Claim" means a claim arising out of agreement relating to the use or hire of any ship whether by charter party or otherwise. The plaintiff is under Charter Party agreement and the plaintiff has thus a maritime claim.
(e) Learned counsel Mr. Soparkar submitted that as per the decision of the Hon'ble Supreme Court rendered in the case of M.V.Elisabeth & Ors. v. Harwan Investment & Trading Pvt. Ltd., [1993 Supp (2) Supreme Court Cases 433], this Court is having inherent jurisdiction as well as admiralty jurisdiction. Therefore, this Court can exercise the powers with respect to maritime claim as defined in Brussels Convention of 1952. Learned counsel has mainly relied upon the observations made by the Hon'ble Supreme Court in the aforesaid decision in para 44, 45, 47, 48 to 50, 56, 58, 66, 71, 74, 82, 88 and 89, which read as under:
58. The real purpose of arrest in both the English and the Civil Law systems is to obtain security 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 personam. All actions in the civil O/AS/17/2015 ORDER 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. (See D.C.Jackson, Enforcement of Maritime Claims, (1985) Appendix 5). Admiralty actions in England, on the other hand, whether in rem or in personam, are confined to well defined maritime liens or claims and directed against the res(ship, cargo and freight) which is the subjectmatter of the dispute or any other ship in the same beneficial ownership as the res in question.
71. 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 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.
74. All foreign merchant ships and persons thereon fall O/AS/17/2015 ORDER under the jurisdiction 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 consequence of which extend beyond the ships. Such ships are subject to the local jurisdiction in criminal, civil 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 flag State. 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 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 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 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 authorities in respect of maritime claims and they are liable to be arrested for the enforcement of such claims.