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Merchant Shipping Act-8 (Investigation and Inquiries, Receiver of Wreck)

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. Which part deals with investigations and inquiries?
Ans. Part XII deals with this subject.

Q. What is a shipping casualty? What is the provision regarding ‘reporting’?
Ans. For the purposes of investigations and inquires under this part, a shipping casualty shall be deemed to occur when:

  1. on or near the coasts of India, any ship is lost, abandoned, stranded or materially damaged;
  2. on or near the coasts of India, any ship causes loss or material damage to any other ship;
  3. any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coasts of India;
  4. in any place, any such loss, abandonment, stranding, material damage or casually as above mentioned, occurs to or onboard any Indian ship, and any competent witness thereof is found in India; and
  5. any Indian ship is lost or is supposed to have been lost and any evidence is obtainable in India as to the circumstances under which she proceeded to sea or was last heard of-

In the case mentioned in paras (a), (b) and (c) above, the Master, pilot, harbour master or other person in charge of the ship, or (where two ships are concerned) in charge of each ship at the time of the shipping casualty, give immediate notice of the shipping casualty to the officer appointed in this behalf by the central government. In case of cases mentioned in para (d), where the Master of the ship concerned or (except in the case of a loss) where the ship concerned proceeded to any place in India from the place where the shipping casualty has occurred, the Master of the ship, shall, on arriving in India, give immediate notice of the shipping casualty to the officer appointed in this behalf by the central government.

Q. Who conducts preliminary Inquiry? Can the matter be directly sent for formal Investigation?
Ans. When an officer appointed in this behalf receives information that a shipping casualty has occurred, he may proceed to make a preliminary inquiry into the casualty. Upon knowing about casualty and after the preliminary Inquiry he shall send a report thereof to the central government. The officer appointed, whether he has made a preliminary inquiry or not, may, and, where the central government so directs, shall make an application to a court empowered, to make a formal investigation into any shipping casualty, and the court shall there upon make such investigation.

Q. Which courts have the jurisdiction in respect of a marine casualty?
Ans. A first class magistrate specially empowered in this behalf by the central government and a presidency magistrate shall have jurisdiction to make formal investigations.

Q. On what charges, the court is empowered to investigate the ship’s officers?
Ans. The court of investigation can inquire into charges against Masters, mates and engineers on following matters:

1. Incompetency.
2. Misconduct arising, in the course of the investigation.
3. Any charge of a wrongful act of default on his part causing the shipping casualty.

The central government can even, direct inquiry into charges of incompetency or misconduct on an Indian ship, to a court which, is at or nearest to the place abroad, where it may be convenient if Indian officers are involved or Indian certificate holder is involved.

Q. What is the new Admiralty Jurisdiction Act?
Ans. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 expressly vests admiralty jurisdiction in the high courts of all the coastal states in India, i.e., the Calcutta High Court, the Bombay High Court, the Madras High Court, the Karnataka High Court, the Gujarat High Court, the Orissa High Court, the Kerala High Court and the Hyderabad High Court. Each court has jurisdiction over waters up to (and including) its territorial sea waters. The Act also permits the central government to vest admiralty jurisdiction in other high courts, and extend the jurisdiction of the high courts, by notification.

Q. What is the power of court as to evidence and regulation of proceedings?
Ans. For the purpose of any investigation or inquiry under this part, the court making the investigation or inquiry shall, in respect of compelling the attendance, examination of witnesses, the production of documents and the regulation of the proceeding have the same powers as are exercisable by the proceeding and have the same powers as are exercisable by that court in the exercise of its criminal jurisdiction.

Q. A court doing formal investigation looks into the question of law but how does a court ensure the compliance of marine technicalities?
Ans. Section 366  has provisions about assessors whereby a court making a formal investigation is directed to constitute as its assessors not less than two and not more than four persons, of whom, one shall be a person conversant with maritime affairs and the other or others shall be conversant with either maritime or mercantile affairs. Provided that, where the investigation involves, or appears likely to involve, any questions as to the cancellation or suspension of the certificate of a Master, mate or engineer, two of the assessors shall be persons having also experience in the merchant service.

Q. What are the powers of court to censure Master, mate or engineer?
Ans. Where it appears to the court holding an investigation inquiry that having regards to the circumstances of the case, an order of cancellation or suspension under section 370 is not justified, the court may pass an order censuring the Master, mate or engineer in respect of his conduct.

Q. Can a court remove Master and appoint new Master?
Ans. As per S-372, power of court to remove Master and appoint new Master, allows a Judicial magistrate of the first class specially empowered in this behalf by the central government or a metropolitan magistrate, to remove the Master of any ship within his jurisdiction, if the removal is shown to his satisfaction to be necessary. The removal may be made upon the application of the owner of any ship or his agent, or of the consignee of the ship, or of any certified officer or of one-third or more of the crew of the ship. The Magistrate may appoint a new Master instead of the one removed, but where the owner, agent or consignee of the ship is within his jurisdiction, such an appointment shall not be made without the consent of that owner, agent or consignee.

Q. What is a Marine Board? Why is it required?
Ans. A marine board shall consist of the officer convening the board and two other members.

The two other members of the marine board shall be appointed by the officer convening the marine board from among persons conversant with marine mercantile affairs. the officer convening the marine board shall preside. Board shall have power to regulate its own procedure subject to this Act.

Board may, after investigation, for the safety; or in interest of ship or cargo owner remove the Master and suitably replace him. If the board is of opinion that any Master or officer of an Indian ship is incompetent or has been guilty in collision; communication as per s-348; in loss, abandonment or stranding; or has caused serious damage to any person, may suspend the certificate of that Master or ship’s officer for a stated period. Though, he has to be furnished with a statement of the case and he must also be given an opportunity of making a defence either in person or otherwise.

It may order forfeiture of wages of a seaman discharged. Board may also decide on any question related to wages, fines or all of the expenses incurred by the Master or owner of an Indian ship or on the maintenance of a seaman or apprentice while in prison outside India (to be paid out of, and deducted from, the wages of that seaman or apprentice). Board may order any person making frivolous or unjustified complaint to pay compensation. All orders, made by a marine board shall, whenever practicable, be entered in the official log book.

Q. Does the Central Government have power to cancel or suspend competency certificate for incompetence or criminal grounds?
Ans. Any certificate which has been granted by the central government under this Act to any Master, mate or engineer, may be cancelled or suspended for any specified period, by the central government in the following cases:

1. If, on any investigation or inquiry made by any court, tribunal or other authority legislative authority in any country outside India, they report that:

Cancellation or suspension of certificate as above is also possible if the Master, mate or engineer is proved to have been convicted―
(i) of any offence under this Act or of any non-bailable offence committed under any other law for the time being in force in India; or
(ii) of an offence committed outside India, which, if committed in India, would be a non-bailable offence;

Any certificate may be cancelled or suspended for any specified period by the central government if the person has contravened the provisions of 87B to serve Indian or government ships.

Provided that no order under this sub-section shall be passed by the central government unless the person concerned has been given an opportunity of making a representation against the order proposed. The central government may at any time, if it thinks the justice of the case so requires revoke or modify any order of cancellation or suspension made by self or made by a court or a Marine Board

Q. Who can be a Receiver of wreck under MSA?
Ans. The Central Government may, by notification in the official gazette, appoint any person to be a receiver of wreck, to receive and take possession of wreck and to perform such duties as may be specified in the notification. Whenever a vessel is wrecked, stranded or is in distress as aforesaid, and any person plunders, creates or obstructs the preservation of the vessel or of the wrecked persons or of the cargo equipment of the vessel, the receiver of wreck may take such steps and use such force as needed, necessary for the suppression of any such plundering, disorder or obstruction.

He may at any time sell any wreck in his custody, if in his opinion, it is under the value of five hundred rupees; or it is so much damaged or of so perishable a nature that it cannot with advantage be kept; or  it is not of sufficient value for warehousing. The proceeds of the sale shall, after defraying the expenses thereof, be held by the receiver for the same purposes and subject to the same claims, rights and liabilities as if the wreck had remained unsold.

The owner of any wreck in the possession of the receiver upon establishing his claim to the same to the satisfaction of the receiver within one year from the time at which the wreck came into the possession of the receiver, shall upon paying the salvage and other charges, be entitled to have the wreck or the proceeds thereof delivered to him.

In respect of the cargo from foreign vessel, when brought into any port in India, the consular officer of the country in which the vessel is registered shall, in the absence of the owner and of the Master or other agent of the owner, be deemed to be the agent of the owner, with respect to the custody and disposal of the articles.

Q. What are the rules regarding the salvage of an Indian ship in International waters?
Ans. Where salvage services are rendered in saving life, (even if partly), within the territorial waters of India from any vessel, or in any waters from Indian ship; or in assisting a vessel or saving the cargo or equipment of any vessel which is wrecked, stranded or in distress at any place on or near the coasts of India, there shall be payable to the salvor by the owner of the vessel, cargo, equipment or wreck, a reasonable sum for salvage.

Salvage in respect of the preservation of life, when payable by the owner of the vessel, shall be payable in priority to all other claims for salvage. Where salvage services are rendered by or on behalf of the Government or by a vessel of the Indian Navy or the commander or crew of any such vessel, the government, the commander or the crew, as the case may be, shall be entitled to salvage and shall have the same rights and remedies in respect of those services as any other salvor. The costs of and incidental to all proceedings before a magistrate or the high court under this section shall be in the discretion of the magistrate or the high court, and the magistrate or the high court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purpose aforesaid.

Q. What license is issued by DG Shipping to Indian ships?
Ans. Section 406 states that Indian ships and other ships chartered by a citizen of India or a company or a co-op society shall not be taken to sea from a port or place within or outside India except under a license granted by the director-general under this section. The central government, however, in the public interest, may, by notification in the official gazette, exempt any class of ships chartered by a citizen of India or a company from the provisions of this sub-section.

A license granted under this section may be a general license; a license for the whole or any part of the coasting trade of India; a license for a specified period or voyage and shall be in such form and shall be valid for such period as may be prescribed.

Q.  What is the provision about licensing of ships for Coasting Trade?
Ans. S. 407 deals with this subject. It says, no ship other than an Indian ship or a ship chartered by a citizen of India or a company or a cooperative society which satisfies the relevant requirements regarding Indian ships, shall engage in the coasting trade of India except under a license granted by the director-general under this section. Such license granted under this section may be for a specified period or voyage and shall be subject to such conditions as may be specified by the director-general. The central government however, may, by general or special order, direct the provisions to be different in respect of any part of the coasting trade of India.

Q. Can a non Indian sailing vessel engage in coasting trade of India?
Ans. A non-Indian sailing vessel is not to engage in coasting trade without permission. A sailing vessel not owned by a citizen of India or a company (s-21) or co-op society shall not engage in the coasting trade of India without the written permission of the director-general. The director-general may, when granting such permission, impose such terms and conditions as he thinks fit and may require the owner or other person in charge of the vessel to deposit with him such amount as he thinks necessary for the due fulfillment of such terms and conditions. A custom clearance shall not be given to non compliant sailing vessel.

Q. If a foreign flagged ship causes damage to an Indian property in an area of Indian jurisdiction, can the ship be detained?
Ans. In any part of the world, if damage is caused (to the property of an Indian citizen or Indian Government) by a foreign flagged ship, and thereafter if that ship is found within Indian jurisdiction, the High court may, upon the application of any person (who alleges that the damage was caused by the misconduct or want of skill of any member of the crew of the ship) issue an order directed to any proper office (or other officer named in the order) requiring him to detain the ship until such time as the owner, Master or coassignee thereof has satisfied any claim in respect of the damage or has given security to the satisfaction of the high court.

Where under this Act a ship is authorised or ordered to be detained, any commissioned officer of the Indian Navy or any port officer, pilot, harbour master, conservator of port or customs collector may detain the ship. If any ship after detention or after any notice of, or order for, such dentition proceeds to sea before she is released any competent authority, the Master of the ship shall be guilty of an offence under section 444.

Q. What is the provision about inquiry into cause of death on board Indian ship?
Ans. S-452 deals with this matter. It says, if any person dies on board a foreign-going Indian ship, the proper officer at the port where the crew of the ship is discharged, or the proper officer at any earlier port of call in India, shall, on the arrival of the ship at the port, inquire into the cause of death, and shall make in the official log book endorsement to the effect, either that the statement of the cause of death is in his opinion true, or the contrary, according to the result of the inquiry.

Q. What if the death was a murder?
Ans. If, in the course off any such inquiry, it appears to the proper officer that a death has been caused on board the ship by violence or other improper means, he shall either report the matter to the director-general or, if the emergency of the cases requires, shall make immediate steps for bringing the offender to trial.

Q. What is a coasting ship as defined in Merchant Shipping Act?
Ans. Coasting ship means a ship exclusively employed in trading between any port or place in India and any other port or place on the continent of India or between ports or places in India and ports or places in Ceylon or Burma;

Q. What is the ‘coasting trade of India’?
Ans. Coasting trade of India’ means the carriage by sea of passengers or goods from any port or place in India to any other port or place on the continent of India.

Q. What is a ‘foreign-going ship’?
Ans. A ‘foreign-going ship’ means a ship, not being a home-trade ship, employed in trading between any port or place in India and any other port or place or between ports or places, outside India.

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