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3. Mr. Kotwal, learned Counsel appearing for the plaintiffs submitted that the judgment of the learned trial Judge is based on total misreading of the decision of the Supreme Court in M.V. Elizabeth's case, that it is wholly contrary to the manner in which it has been read by the judgments of this Court in M.V. Mainer IV v. Videsh Sanchar Nigam Ltd., 1998 (1) Mah LJ 751 and M. V. Sea Success 1 v. Liverpool and London Steamship Protection and Indemnity Association Ltd. (Appeal No. 226 of 2001 decided on 28-11-2001 : (reported in AIR 2002. Bom 151). The learned Judge failed to notice that the question of admiralty court's jurisdiction to order arrest of a vessel in order to force security for future arbitration award was not in issue in M.V. Elizabeth. The Issue before the Supreme Court as evident from paragraphs 5 and 6 of the judgment In M.V. Elizabeth was whether the admiralty court In India had jurisdiction to arrest a ship on an action in tort in regard to cargo in a outgoing ship. The judgment in M.V. Elizabeth does not in any manner limit admiralty jurisdiction of the High Court. On the other hand the entire endeavour of the Supreme Court in M.V. Elizabeth was to align and modernize the law by inter alia introducing into admiralty jurisdiction the International law including principles underlying Arrest of Sea going Ships, Brussels, 1952. The learned Counsel submitted that Article 7(3) of 1952 Convention clearly confers jurisdiction on the admiralty court to order arrest of a vessel to secure the award that may be passed in arbitration proceedings. He submitted that a vast majority of trading nations that is over 70 in number has given effect to 1952 Convention and, therefore, the said Convention has never universal acceptance and can be regarded as international common law, which includes admiralty court's power to arrest a vessel for the purpose of obtaining security for the future arbitration award, which the arbitrator may grant. Although India is not a signatory to the numerous international conventions, in view of the dictum in M.V. Elizabeth, principles can be adopted into our local context. The learned Counsel took us through the relevant portions of the judgment in M.V. Elizabeth to show that the Supreme Court has categorically held that 1952 Convention, though not ratified by India, can be the basis for exercise of jurisdiction by admiralty court in India. The learned Counsel urged that In today's modern shipping context and the expansive jurisdiction trend recommended by the Supreme Court in M.V. Elizabeth the admiralty courts in India can also exercise jurisdiction to arrest ship for the purpose of securing the claim of the plaintiff in future or pending arbitration. The High Court has power to administer general maritime law whether derived by virtue of statute or otherwise. While so administering the maritime law the High Court shall have regard to the International law and comity.

Subsequently in Rena K. (1978) 1 Lloyd's Rep 545 (QB) (Adm. Ct), Mr. Justice Brandon (at pages 554-555 paraphrased his reasoning in the Cap Bon by saying it was based on two propositions, one positive and one negative. The first and positive proposition is that the purposes of arresting a ship in an action in rem is to provide the plaintiff with security for the payment of any judgment which he may obtain in action. The second and negative proposition is that it is not the purpose of arresting a ship in an action in rem to provide the plaintiff with security for payment of an award which he may obtain in an arbitration of the same claim as that raised in the action and the Court therefore has no jurisdiction to arrest a ship, or keep her under arrest, for some other purpose. In effect, the claimant was put to an election between two courses of action, either pursuing the claim in the Court which the advantage of security, or pursuing the claim through arbitration without the advantage of security. In Rena K. Mr. Justice Brandon considered security in the context of a stay for arbitration and the evolving case law. While he felt that the principles set out in The Cap Bon were correct, he also recognised that the Court had the discretion, on granting a stay in favour of arbitration, to allow existing security to remain in place, depending upon the circumstances in any particular instance.

12. Apart from U.K. Canada, and USA many other systems of law world over have recognized admiralty courts jurisdiction to arrest a vessel to force security in pending arbitration. Our attention was invited to the Shipping Arrest Handbook of 1997 to show that today a vast majority of trading nations allow arrest of ship when the final relief is not sought for from the same court but from another jurisdiction/arbitration. Our attention was also invited to Article 7(3) of the 1952 Brussels Convention which says, "If the par ties have agreed to submit the dispute to the jurisdiction of a particular court other than that within whose jurisdiction the arrest was made or to arbitration, the Court or other appropriate authority within whose jurisdiction the arrest was made may fix the time within which the claimant shall bring proceedings". It is stated that Article 7(3) is similar to Section 26 of the Civil Jurisdiction and Judgments Act, 1872 relied upon by Sheen J. in Jalamatsya.

18. The observations of the Supreme Court In M.V. Elizabeth, in our opinion, clearly suggest that unless there is any prohibition in the Municipal law, the principles of transnational laws or international conventions could be applied for affording remedy for the satisfaction or realization of maritime claim. To quote the words of Lord Denning at the cost of repetition that"..... . . .the rules of international law have changed and do change and the Courts have given effect of the changes without the aid of any Act or Parliament, it follows that the rules of international law as existing from time to time do form part of our English law" also support the proposition that without specific adoption by the Municipal law, applicable rules of international law could be legitimately adopted by the Court to further the remedy and cause of justice. Although India has not adopted Convention relating to the arrest of sea going Ship, Brussels 1952 and the Convention on jurisdiction and the enforcement of judgments in Civil and Commercial Matters, Brussels, 1968. the principles incorporated in these Conventions are themselves derived from the common law of nations and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships. The development of maritime law has shown that it was not created as a definite all inclusive body of law. It has been developed over a period of many centuries and is still in continuous process of development. The necessities of international trade and commerce have dictated that the development should be along uniform lines in the several maritime nations and the expression admiralty or maritime should be construed in contemporary context. There is nothing in the statutes in India to exclude use of admiralty jurisdiction for the purpose of arresting a ship by way of security in future or pending arbitrations. The countries like USA and Canada recognised the powers of Court to order arrest of ship to force security for a future arbitration award. In England too the world has moved on. In Jalmastya the Court has categorically held that the Court has power to arrest ship to secure claims in future or pending arbitrations. Why should the Court maintain a stance which has been discarded in England and which does not accord with the preferred judicial policy as enunciated in M.V. Elizabeth. We, therefore, hold that the Court in its admiralty jurisdiction has power to arrest a ship to secure a claim in future or pending arbitration.