This is a proceedings initiated as Special Jurisdiction Case invoking sub-section (1) of Section 443 of the Merchant Shipping Act, 1958 (the Act) for detaining a foreign ship that has allegedly caused damage to the property of the petitioners. The registry entertained a doubt as to whether a proceedings for detaining a ship for enforcement of a maritime claim could be instituted after the decision of this Court in M.V.Free Neptune v. D.L.F. Southern Towns Private Ltd. (2011 (1) KLT 904) as a Special Jurisdiction Case. It maintains the stand that after the said case, a proceedings of the instant nature could be instituted only as an admiralty suit. The petitioners do not agree with the said stand of the registry. The matter has thus come up for decision on the said question.

2. On 27.7.2018, this court directed the registry to number the matter provisionally as a Special Jurisdiction Case and accordingly, the matter has been numbered as a Special Jurisdiction Case.

3. When the matter was taken up, Sri. Joy Thattil Ittoop, the learned counsel for the petitioners addressed arguments not only on the question relating to the maintainability of the proceedings as a Special Jurisdiction Case, but also on the merits of the matter. Sri. Suvin R.Menon, the learned Central Government Counsel also addressed arguments. Though the learned Central Government Counsel supported the stand of the learned counsel for the petitioners as regards the maintainability of the proceedings as a Special Jurisdiction Case, he raised a preliminary objection as to the maintainability of the proceedings before this court. According to the learned Central Government Counsel, the foreign ship sought to be detained, even according to the petitioners, is not within the territorial jurisdiction of this court and therefore the jurisdiction of this court under sub-section (1) of Section 443 of the Act cannot be invoked for detaining the ship. The question arises in the context of the preliminary objection raised by the learned Central Government Counsel is whether the jurisdiction of this court under sub-section (1) of Section 443 of the Act can be invoked for detaining a foreign ship which is not within the territorial jurisdiction of this court.

4. Before proceeding to decide the questions which arise for consideration, it is necessary to refer to the facts of the case. Petitioners 1 to 5 are traditional fishermen. The sixth petitioner owns a fishing boat. The case of the petitioners is that the fishing boat owned by the sixth petitioner, and the fishing accessories including fishing nets used by petitioners 1 to 5 for fishing in the said boat were destroyed by the first respondent, a foreign ship off the coast of Kochi on 8.7.2018; that the said occurrence is a shipping casualty; that petitioners have incurred loss to the tune of Rs.60,00,000/-on account of the said shipping casualty and that the first respondent being a foreign ship, the petitioners will not be able to realise damages from the first respondent unless she is detained under subsection (1) of Section 443 of the Act. It is, however, conceded by the petitioners in their pleadings that when the proceedings were initiated, the first respondent was berthed at Paradip Port in the State of Orissa. The direction for detention of the ship, in the circumstances, is sought to the Deputy Conservator of the Paradip Port.

5. In admiralty law, a vessel is a juridical personality, having not only rights but liabilities, sometimes distinct from those of the owner, which may be enforced by a process against the vessel, binding upon all interested in her and conclusive upon the world. Admiralty law administers remedies in rem, i.e., against the property, as well as remedies in personam, i.e., against the party personally. Courts exercising admiralty jurisdiction would arrest a vessel to acquire jurisdiction to adjudicate the maritime claim or to obtain security for the maritime claim or in execution of a decree