MANUAL OF MERCHANT SHIPPING ACT, 1958 Introduction & Interpretation by J. S. GILL Authentic text as modified upto 1999 BHANDARKAR PUBLICATIONS MUMBAI AT AN ADDITIONAL PRICE OF RS. 50/- GET YOUR FLOPPY ALONGWITH THIS BOOK. March 1999 Rs. 200/- Published by V. K. Bhandarkar of BHANDARKAR PUBLICATIONS, D-46, Jyoti Sadan, Sitladevi Temple Road, Mahim, Mumbai-400 016 Tel : 445 37 67 Printed at Mahim, Mumbai-400 016 ii LIST OF AMENDING ACTS w.e.f 1. The Repealing and Amending Act, 1960 (58 of 1960). (by notification) 2. The Merchant Shipping (Amendment) Act, 1966 (21 of 1966). 28/05/66 3. The Merchant Shipping (Amendment) Act, 1970 (25 of 1970). (various dates) 4. The Merchant Shipping (Amendment) Act, 1976 (69 of 1976). 01/12/76 5. The Merchant Shipping (Amendment) Act, 1978 (1 of 1978). 6. The Merchant Shipping (Amendment) Act, 1979 (20 of 1979). 7. The Merchant Shipping (Amendment) Act, 1981 (43 of 1981). 8. The Merchant Shipping (Amendment) Act, 1983 (12 of 1983). 9. The Merchant Shipping (Amendment) Act, 1984 (41 of 1984). (by notification) 10. The Merchant Shipping (Amendment) Act, 1986 (33 of 1986). 11. The Merchant Shipping (Amendment) Act, 1986 (66 of 1986). 03/04/87 12. The Merchant Shipping (Amendment) Act, 1987 (13 of 1987). 13. The Merchant Shipping (Amendment) Act, 1988 (55 of 1988). 14. The Merchant Shipping (Amendment) Act, 1993 (68 of 1993). 27/10/93 15. The Merchant Shipping (Amendment) Act, 1997 (19 of 1998). 26/09/97 Following words subs. by MS (Amend.) Act 1976, wherever they occur “special trade passanger ships” “a special trade passanger ship” “special trade passanger ship” “special trade passangers” “a special trade passanger” “special trade passanger” iii LIST OF ABBREVIATIONS USED Amend. for Amendment. Cls. “ Clauses. Expn. “ Expression foll. “ following incl. “ inclusive Ins. “ Inserted. Sec. “ Section. Subs. “ Substituted. MS “ Merchant Shipping w.e.f. “ with effect from iv PUBLISHERS’ NOTE In our book Maritime Law of India, published in 1979, the Merchant Shipping Act, 1958 was reproduced ad verbatim with a preface by Dr. Nagendra Singh at one time Director General of Shipping and then Judge of the International Court of Justice, and Commentary by Mr. Gopalan Nair, Deputy Director General of Shipping (retired). We have now the pleasure of making a new effort to project Maritime Law exclusively as limited by the Merchant Shipping Act, 1958. The Merchant Shipping Act, 1958 was at first modelled after the U.K Merchant Shiping Act, 1894 which was replaced by Indian Merchant Shipping Act of 1923. After Independance, the new conditions were carefully taken note of, and though late, a comprehensive piece of legislation was passed by the Indian Parliament in 1958. However, International shipping was itself in doldrums of technological, political and economic changes in the world and made the “Inter Governmental Maritime Consultative Organisation” an effective body to regulate world shipping. Today, under the new name “International Maritime Organisation”. It is an organ of the United Nations and regulates Global Maritime Law. India being a Maritime Nation, and a member of the IMO has to ratify the changes approved by IMO and incorporate the same subsequently in its National Legislation. Therefore, the Merchant Shipping Act, 1958 has been modified ten times till 22nd May, 1987 and all the amendments have been incorporated in this volume. Currently India being a signatory to the Standards of Training, Certification and Watch-keeping of the IMO, has made new Rules for examination of Deck Officers. Consequently, Part VI, of the Present Act has been amended in this edition. The most important changes that have been incorporated since 1980 pertain to ownership of the shares of a ship which can now be held by a Co-operative Society which is duly registered in any of the States of India under appropriate law made under the Central Act No. 12 of 1912. Similarly the Fishing vessels and Sailing vessels have been given their due place in the Act. Marine pollution and its prevention has taken an important place and fines have been very heavy in cases of violation of laws. The 1981 Amendment Act enables the ownership to be shared by members of a Co-operative Society and hence modifies Sections 21(b), 29, 45, 406, 407, 415, 431 and 441 suitably, 1983 Amendment Act mainly fixes Civil Liability for oil pollution damage in terms of the international currency of the gold franc and sections 352G to R have been formulated. Similarly prevention and containment of pollution of the sea by oil has been defined by new sections 356A to O. Certain protection is given to Indian ships by the new section 411A. In view of the importance of fishing to the economic life of India, New part XVA has been formed (new sections 435A to X). Fines for violating provisions of the Act in terms of oil pollution have been heavy and deterrent. (see Penalties Serial No. 115B etc.) The authority for trial for violations of sections of the MSA has now been vested in “any Judicial Magistrate of the First Class or any Metropolitan Magistrate” by modifying sections 35, 132, 145, 146, 184, 187, 189, 233, 279, etc.1984 Amendment Act defines the concept of “family” of the seaman and/or an apprentice and their nominees entitled to receive compensation by modifying Section 11, 102, 105, 108, 130, 132, 137, 141, 159, etc. However, the most significant change is to include the sailing vessel under the preview of the MSA in terms of insurance and compensation of the Crew. The views, if any, expressed in the Introduction and Interpretation of this book are of Shri J. S. Gill were made during his tunure as Sr. Dy. Director of Shipping but do not necessarily represent those of the Govt. of India or the department in which he was working. v INTRODUCTION THE EVOLUTION OF THE INDIAN LAW OF MERCHANT SHIPPING AND ITS CODIFICATION The development of the Merchant Shipping Law in India has had a long history of over a century. The first Act on the subject, passed by the British Parliament, was the Lascars Act, 1823 (4 Geo. 4, c.80). This Act, which was partly repealed later, enabled rules to be made by the Indian Legislature to be observed by “Masters and Officers, Owners of ships and vessels trading under the authority of the Act.” There was further legislation enacted by the British Parliament e.g. 3 and 4 Vict. c. 56, under the authority of which the Indian Registration of Ships Act of 1841 was passed in India. Similarly, in 1855, by virtue of a British Act (18 and 19 Vict. c.119), the Indian Sea Passengers Act of 1855 was enacted. The next Statute, the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60) has been the most important Act of the British Parliament relating to Merchant Shipping and this Act has consolidated all the earlier Parliamentary legislation and also defined the application of the British Acts to India and other parts of the British Empire. There is a long string of Acts passed subsequently now constructed as part of the 1894 Act. It is noteworthy that legislation in India was only possible under the authority conferred by the English Parliamentary Statutes. The U.K. Merchant Shipping Act, 1894 expressly states the various parts of the Empire to which the Act was made applicable. For example, in Section 91 of the said Act where the application of Part I is considered, it is laid down that it “would apply to the whole of Her Majesty’s dominion and to all places where Her Majesty has jurisdiction.” The U.K. Merchant Shipping Act, 1894, therefore, applied to India ipso facto. It is for this reason that the said Act has been described as an Imperial Statute. In accordance with Section 735(1) of the U.K. Merchant Shipping Act, 1894, no Act or Ordinance passed by the legislature of any British possession overseas could take effect until the approval of Her Majesty had been proclaimed in the possession and until such time thereafter as may be fixed by the Act or ordinance for this purpose. These provisions did not apply to the Parliament of a Dominion in accordance with the Statute of Westminster 1931 (22 Geo. 5, c.4). However, they were applicable to India and though in the Government of India Act,1935, which prescribed a Federal Constitution, the federal legislature was empowered to legislate on merchant shipping, it was unfortunate that as Part II of the Act never came into force, the Central legislature did not have powers to enact merchant shipping laws as a sovereign independent State until India’s independence in 1947. But it was not until 1958 that the first genuine national enactment on merchant shipping was forthcoming. However, among the several Acts passed in India under the authority conferred by the British Parliamentary Statutes, the first enactment in India relating to Merchant Shipping was the Bombay Coasting Vessels Act, 1838, which provided for a system of identification and registration of vessels belonging to residents of the Presidency of Bombay and which were employed on the coasts of the Presidency. The next Act was the Indian Registration of Ships Act, 1841, which provides for registration of vessels built and trading within the limits of the East India Company’s charter. The Act conferred the status of British ships on such ships but only as long as the ships were within the limits of the charter. This Act was subsequently amended in 1850 so as to extend the privileges of British ships to Indian ship which were on voyage from one part of the possessions of the East India Company to another part.