Disclaimer: The idea of publishing this article is to: generate positive interest in mariner about the MSA 58; and familiarize him broadly with the scope and range of the Act without going into legal intricacies. Reader, in order to make final conclusion must refer to the Act in full with the relevant MS Rules.
Q. How did the MSA, 58 emerge? What does it cover?
Ans. India has been a maritime country with the inevitable maritime activities in association. It needs an instrument to conduct its activities. With the growth of shipping and the country becoming independent, country needed an instrument to regulate its maritime affairs. A tool with legal authority was needed to regulate various processes such as: regulatory, legal, international, coastal, etc. Merchant Shipping Act, 1958 came into being when the industry had started budding. After independence the Merchant Shipping Act, 1958 was passed by the Indian Parliament. Provisions, included in the Act then, helped the development of shipping in its early days.
The purpose of this Act is to ‘foster the development and ensure the efficient maintenance of an Indian mercantile marine’ in a manner best suited to serve the national interests. This Act provides for registration of Indian Ships, which was the greatest achievement to start with. It is divided into many parts, dealing with specific aspects of merchant shipping. Thus, in addition to the registration of ships; registration of sailing vessels and fishing vessels; manning of ships; engagement, discharge and repatriation of seamen and apprentices; safety of ‘passenger/ cargo ships; control of Indian ships and ships engaged in the coasting trade; collisions; prevention and control of pollution of the sea by oil from ships; limitation of ship owners’ liability; civil liability for oil pollution damage; were included in the Act.
Q. What is the objective or purpose of Merchant Shipping Act? How is it achieved?
Ans. The objective of this Act is to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to serve the national interests.
The objectives are achievable by:
1. establishing a National Shipping Board and various offices such as DG’s, MMD, shipping office, etc;
2. providing for the registration, certification, safety and security of Indian ships; and
3. generally, by amending and consolidating the law relating to merchant shipping.
Q. Describe the contents of the Merchant Shipping Act in brief?
Ans. Part I, which is Preliminary, gives short title of the Act with date of commencement, application of the Act and definitions of the terms used in the Act.
Part II of the Act contains provisions relating to the establishment and functions of National Shipping Board.
Part III deals with the general administration. It includes: appointment of director general; establishment of mercantile marine departments, shipping offices, seaman’s employment offices and seamen’s welfare offices; etc. It also deals with the appointment of principal officers at MMD, Mumbai, Calcutta and Madras. It also deals with appointment of and other officers at other ports. These include: surveyors, radio inspectors, shipping masters; director of seamen’s employment offices; and seamen’s welfare officers.
Part IV which dealt with the formation of shipping development fund and establishment of shipping development fund committee, has been abolished vide M.S. (Amendment) Act of 1986 (66 of 1986).
Part V deals with: the registration of Indian ships; defining the Indian ships; provisions for obligation to register; procedure for registration; granting of certificate of registry; endorsement for change of Master and owner; transfer of ships’ shares; etc. It also provides: rules in respect of name of ship; provisions for alternations; transfer of registry; national character of the ships and flag; etc.
Part VI is certificates of officers. Certificates of Masters, mates, engineers, skippers, etc. are covered. The requirements regarding officers on board various categories of ships and safe manning document are dealt here.
Part VII deals with seamen and apprentices. It gives vide ranging provision for classification of seamen. Part also deals with: their engagements, management and discharge; various issues of wages; deceased, distressed seamen; litigation and other matters; provision as to discipline; etc.
Part VIII deals with: passenger ships; their survey / certificate of survey; powers of surveyor; fee/ duration of survey; etc. This part also contains provision for special trade passenger ships and pilgrim ships.
Part IX of the Merchant Shipping Act 1958 deals with the provisions relating to Safety. This part gives: the provisions relating to construction rules for ships; prevention of collisions; life saving appliances and fire appliances; installation of radio instruments, signaling lamp; and provisions relating to stability information. This part also deals with the provisions relating to safety certificates, safety equipment certificates, safety radio certificates, exemption certificates, etc. Load lines, timber cargo, dangerous goods, grain loading unseaworthy ships, detention of unsafe ships, etc are the other areas covered.
Part IX A deals with nuclear ships.
Part IX B deals with security of ships and port facilities.
Part X deals with the collision, accident at sea and liability which includes provision for division of loss in case of collision, damages, personal injury etc.
Part X A deals with limitation of liability of owners in case of certain damages, whereas
Part X B gives provision for civil liability for oil pollution damage.
Part X C deals with International oil pollution compensation fund.
Part XI is Navigation. This part deals with: the duty of Master to report danger to navigation; manner of communicating reports of danger to navigations; obligation to render assistance to persons and ships in danger; etc.
Part XI A is ‘prevention and containment of pollution of sea by oil’. This part contains provision for prevention of pollution and gives powers to central government for prohibition as to: discharge of oil and oily mixtures; inspection and control of ships to which oil pollution convention applies; maintenance of oil record book; oil reception facilities; etc.
Part XII provides the provision for investigation and inquiries in shipping casualties. It gives the court the powers: to hold formal investigations; to arrest witnesses or enter the ships, to commit trial; to censure Masters, mates or engineer or to remove Master; etc. A marine board can be appointed by the counselor officer if the casualty occurs at foreign waters. Central Government can cancel or suspend certificate of Master, mate or engineer. Constitution of court of survey is also provided for.
Part XIII is Wreck and Salvage. This part gives provision for matters relating to wreck and salvage.
Part XIV of the Act gives powers to the central government for control of Indian ships and ships engaged in coasting trade.
Part XV contains the provisions for sailing vessels and
Part XVA deals with fishing boats.
The Part XVI has the provisions for penalties for violation of the provisions of the Act and procedure thereof.
Part XVII, contains: miscellaneous provisions for: appointing examiners; powers of ship surveyor; inquiry into case of death on board the ships; etc. Part XVIII is repeals and savings.
Q. How is an Act passed in parliament?
Ans. The proposed bill passes through the two legislative houses of the Indian parliament. When a bill has been passed, it is sent to the President for his approval. The President can assent or withhold his assent. If the President gives his assent, the bill is published in The Gazette of India and becomes an Act from the date of his assent.
Q. In brief, discuss why the MSA needs to be amended from time to time?
Ans. Though, the primary objective post independence, was to create an instrument that will facilitate registration of Indian ships in an independent and full-fledged manner and though, other parts were there to regulate and govern the shipping initially, more parts of the regulatory instruments were needed for new regulations and infrastructure. Thus, for example, inserting of certain important provisions of the International Convention for the Safety of Life at Sea was done in 1966 amendment. New provisions of STCW were incorporated in 1986, in compliance with STCW 1978. ISPS an important International instrument in respect of security of ship and port was adopted through a recent amendment.
Q. List some important amendments of the Merchant Shipping Act?
Ans. Some of the landmark amendments of the Merchant Shipping Act, 1958 are as follows:
- Amendment Act 1966: The provisions of the International Convention for the Safety of Life at Sea, 1960 were inserted in the Act.
- Amendment Act 1970: Part XA was included, it gave provisions for limitations of liability of owners in case of certain damages.
- The amendment Act 1979: It had a provision for placing an obligation on the persons obtaining certificates of competency under the Act to serve Government or Indian Ships for a specified period.
- The amendment Act 1983: It had the provisions of the International Convention on Control and Prevention of Pollution of Sea by ships in accordance with the amendments to the 1954 Oil Pollution Convention. This gave provisions for civil liability for Oil Pollution damage. This was incorporated in Part X B of the Act. This also inserted new provisions for registration of fishing boats, their inspection etc, in Part XVA of the Act.
- The amendment Act 1986: It caused section 80 of the Act regarding grant of certificate of service to naval officers being deleted from the Act. This was because the International Convention on Standards of training, Certification and Watch-keeping 1978 (to which India is a party) does not permit grant of certificates of service without examination.
- Shipping Development Fund Committee (Abolition) Act, 1986: It was passed to abolish the SDFC constituted under the M.S. Act, 1958. The Central Government delegated the Shipping credit and Investment Company of India Limited, a Company registered under the Companies Act, 1956 (1 of 1956) with all its functions in 1987.
- The 1988 amendment Act: It came in 1988, added provisions of the International Convention on Civil Liability for Oil Pollution Damage, 1969 and its 1976 Protocol was inserted in Part XB of the Act.
- Amendment Act of 1991: A review committee under the chairmanship of Director General of Shipping was set up to review the Merchant Shipping Act 1958 in its entirety taking into consideration the international conventions which India has ratified but not enacted statutorily. The Committee as per the provisions of M.S. Act 1958 suggested wide ranging amendments of various sections including the preamble. These suggestions/recommendations of the Review Committee are under consideration of the Government to amend the M.S. Act 1958 for incorporating the same.
- The Merchant Shipping (Amendment) Act 1998: It provides for filing of complaint by foreign seafarer of a vessel registered in another country than India in Indian territorial waters.
- The Merchant Shipping (Amendment) Act 2002: It included substitution of new section for section 76, which is about certificates of competency to be held by officers of ships. Changes regarding cargo ship safety equipment, safety radio certificate and qualified cargo ship safety radio certificate were caused. Sections 352A to 352R in respect of Limitation of liability for damages in respect of certain claims were included. Insertion of new Part XC named, INTERNATIONAL OIL POLLUTION COMPENSATION FUND (sections 352S to 352ZA) was affected.
- The Merchant Shipping (Amendment) Act 2003: caused substitution of sections 356A to 356H of the Merchant Shipping Act. Matters like issue of pollution prevention certificate, issue of certificates for foreign ships in India and Indian ships abroad. Requirement for construction and equipment in ships to prevent pollution, inspection and control of oil tankers and other ships in foreign countries were dealt through sections 356 I, J, K.
- The Merchant Shipping (Amendment) Act 2007: It caused insertion of s-99A, which is Prohibition of engagement of seafarer without seafarer’s identity document. Insertion of new Part IXB was caused. PART IXB is SECURITY OF SHIPS AND PORT FACILITIES. The Merchant Shipping (amendment) Act, 2014: It caused Part XIB, ‘Control Of Harmful Anti-Fouling Systems on ships’ to be inserted.
- Merchant Shipping (Amendment) Bill, 2015, was introduced in the Lok Sabha. After approval, India’s accession to the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunker Convention) (352R), Nairobi Convention (390) and Salvage Convention (402) will be effective.
Q. What is Wreck?
Ans. ‘Wreck’ includes the following when found in the sea or in tidal water or on the shores thereof- Goods which; had been cast into the sea and then have sunk and remained under water; had been cast, fallen into the sea and have remained floating on the surface; are sunk in the sea, but are attached to a floating object in order that they may be found again; are thrown away or abandoned; and a vessel abandoned without hope or intention of recovery.
Q. What is the provision regarding and purpose of National Shipping Board?
Ans. With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, there shall be established a Board to be called the National Shipping Board. This Board shall consist of six members elected by Parliament, four by the House of the People and the other two by the Council of States. In addition other members, not exceeding sixteen (as the Central Government may think fit) are appointed to the Board, to represent; the Central Government, shipowners, seamen, and other relevant interests.
The Board shall include an equal number of persons representing the shipowners and seamen.
The Board shall advise the Central Government on matters relating to Indian shipping, including the development thereof and on such other matters arising out of this Act as the Central Government may refer to it for advice.
Q. What are the various offices and officers established or appointed by the Central Government for the general administration?
Ans. The Central Government may, by notification in the Official Gazette, 1. Appoint a person to be the Director-General of Shipping for the purpose of exercising or discharging the powers, authority or duties conferred or imposed upon the Director-General by or under this Act.
2. Appoint at such ports as it may consider necessary, as many persons as it may think fit to be surveyors for the purposes of this Act.
3. In case of a cargo ship, a person or body of persons to be the surveyors for the purposes of this Act.
4. As many radio inspectors as it may consider necessary, for the purpose of securing that the requirements of this Act and the rules and regulations thereunder relating to radio telegraphy, radio telephony and direction finders are complied with.
The Central Government may, by notification in the Official Gazette, establish at every port in India in which it thinks it necessary so to do:
1. A Shipping Office and shall appoint thereto a Shipping Master’ and as many Deputy Shipping Master’s and Assistant Shipping Master’s as it may consider necessary.
2. A Seamen’s Employment Office and shall appoint thereto a Director and as many Deputy Directors and Assistant Directors as it may consider necessary. In addition, the Central Government may appoint Seamen’s Welfare Officers at such ports in or outside India as it may consider necessary. The Central Government may establish and maintain at each of the ports of Bombay, Calcutta and Madras and at such other port in India as it may consider necessary an officer of the Mercantile Marine Department for the administration of this Act and the rules and regulations thereunder.
Q. What is the necessity of making MS rules in respect of a subject for which international treaty is already there?
Ans. Shipping is an international business whereby invariably more than one nation is involved in the business. There would be clash of procedures if applicable rules are not absolutely clear. In the field of security (sovereignty) and environment, a country may make rules, which sometimes, are seen to be more stringent than the standard international rules. This must be made clear to the world so that the visiting ship is cautioned about the penalties, etc. The punishment for the possession of drugs is different in different countries. The same must be known to a vessel that enters country’s territories. Thus, simply stating that a particular convention is ratified by country is not enough. The shipping from the country as well as the ships which visit the country will abide by the rules, which are enacted in that respect.
Q. What is the provision in respect of power to make rules in respect of various matters of Part II (N.S. Board)?
Ans. The Central Government may make rules to carry out the purpose of this part II (N.S Board). The rules can be regarding; the term of office of members of the board and the manner of filling casual vacancies in the board; the appointment of officers; the travelling and other allowances payable to members of the board.
Q. What is the provision in respect of power to make rules in respect of various matters of Part V?
Ans. The central government may make rules to carry out the purpose of this part. Thus, the manner in which the tonnage of any ship shall be ascertained, whether for the purpose of registration or otherwise; the recognition for the purpose of ascertaining the tonnage of any ship or for any other purpose, of any similar tonnage certificate granted outside India, (including the conditions and restrictions); the manner in which the ships shall be marked; the form in which any document shall be prepared; the persons before which any declaration required shall be made; mortgage on a ship or share of transferring a mortgage; the returns that shall be made by registrars to the Director General; the procedure of the registration, marking or alteration of the names of Indian ships; the fees that may be levied; the manner in which registrars and other authorities may exercise their powers; the manner in which ships may be registered; any other matter which may be or is to be prescribed.
Q. What is the provision in respect of power to make rules in respect of various matters of Part VI?
Ans. The Central Government may make rules to carry out the purpose of this part. Thus, the form and manner in which a service endorsement shall be made; the number of persons and qualification they may possess for maintaining watches; the conduct of the examination of the persons desirous of obtaining certificates of competency; the qualification to be required of persons desirous of obtaining certificates; the fees to be paid by applicants of examination; the period for which the certificate granted shall be valid.
Q. What is the provision in respect of power to make rules in respect of various matters of Pilgrim ships?
Ans. The Central Government may make rules to carry out the purpose of part, Pilgrim ships. Thus, the rules my be made in respect of: the boats, anchors and cables to be provided on board pilgrim ships; the instruments to be supplied for purpose of navigation; the fittings and other appliances to be provided in the upper and between decks for the comfort and convenience of pilgrims; the scale on which, and the manner in which, cooked and un-cooked food and water to be supplied to pilgrims and the quality of such food and water; the kinds of food to be provided for pilgrims on payment, in addition to the food to be supplied in accordance with the rules made under above clause, and the charges which may be made for the same; the quality, quantity and storage of the cargo to be carried; the allotment of the upper deck space between the various classes of pilgrims; the distribution or disposal of the baggage of pilgrims on board ship; the nature and extent of the hospital accommodation and the medical stores; the form of the statements to be furnished by the Master and the particulars to be entered therein; the appointment of medical officers and other attendants in cases where they are required by the provisions of this Part relating to pilgrim ships to be carried; and diaries, reports and other returns to be kept or submitted by such medical officers.
Q. What is the provision in respect of power to make rules in respect of various matters of Part IX?
Ans. The Central Government may make rules to carry out the purpose of part IX. Thus, the various matters are: the form of any certificate and record of equipment; the manner of surveys required to be made; the circumstances in which a certificate is issued outside India; the fees to be charged; the fees to be charges for the survey or inspection of hull, machinery boilers, electrical appliances and other fittings and the materials, used for their construction; etc.
Q. What is the provision in respect of power to make rules in respect of various matters of Part IX A?
Ans. The Central Government may make rules to carry out the purpose of part IX A. Thus,are: the matters the design, construction and standards of inspection and assembly of the reactor installations of nuclear ships; the standards of safety; the manner of survey; the forms in which the certificates may be issued; the form and manner in which the safety assessment and operating manual of a nuclear ship are to be prepared; the special precautions to be taken against unreasonable radiation; the manner in which radio-active waste stowed and disposed of; reactor fueling, defueling; the special training; the fees to be charged for any inspection or survey; etc.
What is the provision in respect of power to make rules in respect of various matters of Part IX B?
Ans. The Central Government may make rules to carry out the purpose of part IX B. Thus, the various matters are: the form of certificate to be issued by the director general; fees to be charged; the limits of the liability of owner in respect of one or more incident of pollution damage; etc.
Q. What is the provision in respect of power to make rules in respect of various matters of Part X C?
Ans. The Central Government may make rules to carry out the purpose of part X C, which means in respect of IOPC Fund.
Q. What is the provision in respect of power to make rules in respect of various matters of Part X, Navigation?
Ans. The Central Government may make rules to carry out the purpose of part X, Navigation. Thus, Central Government may make rules prescribing: the manner of communicating information regarding dangers to navigation, and the authorities on shore to whom such information is to be communicated; the manner of communicating the intelligence regarding dangers to navigation; the circumstances in which, and the purposes for which, any such signal is to be used; the speed at which any message/ signal is to be transmitted; etc.
Q. What is the provision in respect of power to make rules in respect of various matters of Part XI A, ‘prevention and containment of pollution of sea by oil’?
Ans. The Central Government may make rules to carry out the purpose of part XI A. The rules can be about: limits of ballast, and designates noxious liquid limits; prescribes the forms in which, the duration for which international pollution certificates shall be issued under section 356C; conditions for making surveys of oil tankers or other ships prior to issuing certificate; forms of record books; the fees which may be levied for inspection of equipments; specially the officers who shall collect the cess; etc.
Q. What is the provision in respect of power to make rules in respect of various matters of Part XIII ‘wreck and salvage’?
Ans. The Central Government may make rules to carry out the purpose of part XII, Wreck and Salvage. Thus, various matters being:the procedure to be followed by receiver of wreck; he fees payable; dealing with claims relating to ownership of wrecks; the appointments of valuers; the principles to be followed in awarding the salvage; the procedure to be followed for dealing with claims for salvage; the detention of property in the custody of the receiver of wreck; etc.
Q. What is the provision in respect of power to make rules in respect of various matters of part XIV, ‘control of Indian & coasting ships’?
Ans. The central government may make rules to carry out the purpose of part XIV, Indian and coasting ships. Thus, the rules may be regarding: the form in which, the period or voyage for which, and the conditions subject to which licenses under this part may be granted.
Q. What is the provision in respect of power to make rules in respect of various matters of Part XV, ‘sailing vessels’?
Ans. The Central Government may make rules to carry out the purpose of part XV, Sailing Vessels. The different issues being: matters related to applications for certificates of registry; the manner in which the tonnage of sailing vessels shall be ascertained; the manner in which free board is to be assigned; registry and certificates of inspection, duplicate copies; applications for the registry of alterations in the certificates of registry; applications for the transfer of registry; authorities by which sailing vessels are to be inspected; the criteria by which sailing vessels may be classified; rates of freight; the equipment which sailing vessels or class of sailing vessels should carry; the survey of space; the authority to which information regarding Certificate of Registry, registry of alterations and issue of fresh certificates of registry under this part is to be sent by registrars; etc.
(You may also visit my youtube videos @captsschaudhari.com)