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1999 Supreme(Bom) 902
IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Mr. Kamla Kant Dube another..... Plaintiffs.
Versus
m.v. Umang others..... Defendants.
Notice of Motion No. 1153 of 1998 in Admiralty Suit No. 33 of 1997, decided on 2-12-1999.
Advocates appeared :
S.K.Mukherjee with Kamal Katha i/by Motiwalla Co., for plaintiff to show cause.
D.D. Vyas with Ms. E.D. Markar, R.A. Fernandes and M.R. Khatri i/by G.A. Rebello, for defendants in support of notice of motion.
Headnote:Sections 3, 28, 37 (1), 2 (h).-See Letters Patent Bombay (1865) Clause 32.
Sections 2 (1), 3 and 7.-See Letters Patent Bombay (1865), Clause 32.
See Letters Patent Bombay, 1865, Clause 32.
Articles 214, 225, 226 and 372 - See Letters Patent Bombay, 1865, Clause 32.
State Reorganisation Act, 1956
Sections 4 and 52.-See Letters Patent Bombay, 1865, clause 32.
Clause 32-Colonial Courts of Admiralty Act, 1980, Sections 2(1), 3 and 7-Colonial Courts of Admiralty (India) Act, 1891-Constitution of India, Articles 214, 225, 226 and 372 State Reorganizations Act, 1956, Sections 4 and 52 Bombay Reorganizations Act, 1960, Sections 3, 28, 37(1) and 2(h)-Admiralty Jurisdiction of High Court-Foreign Merchant ship-Death of employee on Board-Damage suit-When death occurred and suit filed ship was at Kandla Port Gujarat State-Admiralty Jurisdiction of High Court-Not beyond its local limits-Suit in Bombay High of Constitution of India provides that there shall be a High Court for each State. Under Article 225 it is provided that subject to the provisions of the Constitution and to the provisions of any law of the appropriate legislature, the jurisdiction of any existing High Court shall be same as immediately before the commencement of the Constitution. Every High Court has been empowered to issue writs, orders or directions under Article 226 throughout the territories in relation to which it exercises jurisdiction. This power to issue writs, orders or directions may be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action wholly or in part arises notwithstanding that the seat of such government or authority or the residence of such person is not within the territories. Article 372 provides for continuance in force of existing laws and their adaptation until altered or repealed or amended by the competent legislature or authority. In the year 1956, the State Reorganizations Act was enacted by the Parliament. Upon formation of new State of Bombay which was formed under Section 8 of the Act of 1956 was further reorganized under the Bombay Reorganizations Act, 1960 whereby the new State of Gujarat was formed under Section 3 of the Act of 1960 comprising of the area specified therein and residuary State came to be known as the State of Maharashtra. Section 28 of the Act of 1960 provides that from the appointed date, i.e. Ist May, 1960, the State of Gujarat shall have a separate High Court and the High Court of Bombay shall become High Court for the State of Maharashtra. Under Section 30, the High Court of Gujarat has all jurisdiction. Power and authority of the High Court of Bombay in respect of the territories or part thereof constituting State of Gujarat. Section 37(1) provides that the High Court of Bombay shall have no jurisdiction in respect of transferred territory. In my considered view, therefore, each High Court can only exercise its jurisdiction, power and authority throughout the territories in relation to which it has been established. Clause 32 of letters patent to that extent has to be read in the light of the constitutional provisions, the provisions of the State Reorganisation Act and Bombay Reorganisation Act. Admiralty jurisdiction exercisable by every High Court which every High Court possesses in its plenary powers being the Court of Record and Superior Court cannot extend beyond its local limits. It is trite principle in admiralty law that vessel must be within jurisdiction of the Court for being proceeded against. An action in rem is directed against the Ship itself to satisfy the claim of the plaintiff out of the res. In such action in rem it is important that the ship is within local limits and jurisdiction of the concerned High Court at the time, the proceedings are started.
2.The plaintiffs are the parents of Mr. Arvind Dube who died on 16-8-1996 on board the 1st defendant vessel when she was lying at Kandla Port. The 1st defendant is the vessel M.V. "Umang" registered in St. Vincent and Grenadines. The 2nd defendant is a Liberian Shipping company and owner of the 1st defendant vessel. The 3rd defendant is the local agent of the 1st defendant vessel. The suit has been filed in the Admiralty jurisdiction of this Court on 11-3-1997 and at that time the vessel was lying at Kandla. It is the case of the plaintiffs that their son Arvind obtained second Engineers Certificate on 22-1-1994 and joined sea service on 22-9-1995. He was engaged to serve as third engineer on board the 1st defendant vessel when he was to receive wages in all amounting to 1000 US Dollars per month. Shri Arvind joined the 1st defendant vessel at Kandla Port on or about 27-5-1996. On 15-8-1996 when the 1st defendant vessel was lying at the port of Kandla, Shri Arvind along with other officials and crew were working on the maintenance of an electric crane of the vessel. In the course of repair work of the said crane, Shri Arvind received a severe and fatal electric shock from the crane and he died. The plaintiffs have averred that the death of their son was caused by wrongful act and default on the part of the 1st and 2nd defendants and their managers, servants and agents. The claim as and by way of damages for the estate of the deceased is under the provisions of section 2 (proviso) of the Fatal Accidents Act, 1855 and compensation for the loss of dependency under provisions of section 1(a) of the Fatal Accidents Act, 1855. In paragraph 15 of the plaint, the plaintiffs have averred that their son's fatality constituted "damage caused by a ship" within the meaning of the law relating to Admiralty jurisdiction and that International Law Maritime has for long recognised that wrongful death constitutes a maritime and admiralty cause and accordingly this Court has jurisdiction on its admiralty side to entertain and dispose of the suit.
3.The defendants have traversed the plaintiffs claim by filing written statement and have inter alia set up the plea that this Court has no jurisdiction to try the suit. A notice of motion has also been taken out by the defendants in this regard with a prayer for dismissal of the suit since this Court has no jurisdiction and in the alternative to direct the plaint to be returned to the plaintiff for presentation in appropriate proper Court. The defence of the defendants is that no cause of action has arisen within the area under the jurisdiction of this Court nor are any of the defendants and even the plaintiffs reside or do any business in the area under the jurisdiction of this Court. The defendants have averred that at the relevant date i.e. 15-8-1996, according to the plaintiffs, the 1st defendant vessel was lying in the port of Kandla, District Kutch in the State of Gujarat. Kandla is within the district of State of Gujarat. The territories of the district of Kutch was the territory of the former independent part with sovereign State. By virtue of the provisions of the State Reorganisation Act, 1956, the territories of the former State of Kutch became a port of the bigger bilingual State of Bombay and, therefore, with effect from November 1956 the High Court of Bombay had jurisdiction to exercise its powers in relation to Kutch district. By the enactment of Bombay Reorganisation Act, 1960 which came into for
