An Overview of Admiralty Law and Jurisdiction in Bangladesh

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Short History of Admiralty law in Bangladesh:

The Admiralty jurisdiction in the Indian sub-continent was established and administered during the British era. Till date, all of the laws applied in India originated from England by way of Royal Charters, Letters Patent or statute from the British Parliament since 1683. The Admiralty Courts Act 1840 was the first of a series of Acts which defined and enlarged the Admiralty jurisdiction in England. The jurisdiction was further enlarged by the Admiralty Court Act, 1861. The Colonial Courts of Admiralty Act, 1890 and the Colonial Courts of Admiralty (India) Act, 1891 were enacted to update the law in India at that time and to equate the colonial courts to that of the High Courts in England. In Bangladesh, the law was updated by Admiralty Court Act, 2000. The Act is modeled on Sections 20-21 of the English Supreme Court Act, 1981 (Now to be cited as the Senior Courts Act, 1981). Even after the enactment of the Admiralty Court Act, 2000 in Bangladesh, the substantive law of Admiralty in this jurisdiction is to be found in the Acts of 1840, 1861 and the various court decisions originating from them in the Indian sub-continent. The principles of English common law, decisions of the Superior and Admiralty courts of the United Kingdom, Australia, India and the United States as well as international maritime conventions are regularly cited in the Admiralty Court and remain important sources of authority.

Current Admiralty Jurisdiction:

The Admiralty jurisdiction is exercised by the High Court Division of the Supreme Court of Bangladesh under Section 3 of the Admiralty Court Act, 2000 and it extends to ships or air crafts whether Bangladeshi or not.

Admiralty Court has jurisdiction to hear and decide the following questions or claims regarding:

(a) Possession or ownership of a ship or its shares,
(b) Co-owners touching possession, employment or earnings of the ship;
(c) Any mortgage or charge of the ship or its shares;
(d) Damage done by any ship;
(e) Damage received by any ship;
(f) Death or personal injury occurring as a result of any fault in the ship or defective machinery and equipments;
(g) Lost or damaged goods carried by any ship;
(h) Carriage of goods in a ship, or from any contract of user or hire of any ship;
(i) Section 12 of the Civil Aviation Ordinance, 1960 or any law relating to salvage of any aircraft or ship
(j) Towage of ships or aircrafts;
(k) Navigation of a ship or pilotage of an aircraft;
(l) Necessaries supplied for management and maintenance of a ship;
(m) Building, repairing or equipping of any ship, or the expenses incurred in a port;
(n) Master or seamen wages earned on board the ship, or money or other property collectable in court;
(o) Expenditure incurred in connection with the ship;
(p) General average act or any act claimed to be general average act;
(q) Bottomry and respondentia;
(r) Forfeiture of goods or any declaration that the goods were unfit for use, or claims over jurisdiction;

Actions in rem:

Action in rem can be brought against a ship in cases of:

1) All claims relating to possession or ownership of a ship or its shares, or its registration certificate, log-book or any necessary certificates regarding conveyance and navigation of ships, or recovery of its title deed;

2) All questions arising between the co-owners touching possession, employment or earnings of the ship;
3) Claims in respect of any mortgage or charge of the ship or its shares;
4) Claims arising from bottomry and respondentia;
5) Where there is a maritime lien or other charges, then against a ship, aircraft or property;

Also, if any person is liable in an action in personam as the owner or hirer or the person in possession or control of a ship in the following cases, then an action in rem may also lie against the ship beneficially owned by him (including a sister ship):

1) Claims for any damage done by any ship;
2) Claims for damages for the damaged ship;
3) All claims relating to death or personal injury on the ship;
4) Claims for lost or damaged goods carried by any ship;
5) Any claim arising out of carriage of goods in a ship, or from any contract of use or hire of any ship;
6) All claims arising from Section 12 of the Civil Aviation Ordinance, 1960 or salvage claims;
7) Claims relating to towage of ships or aircrafts;
8) Claims over navigation of a ship or pilotage of an aircraft;
9) Claims relating to necessaries supplied for management and maintenance of a ship;
10) Claims arising out of building, repairing or equipping of any ship, or the expenses incurred in a port;
11) Claims by the master or seamen for wages;
12) All claims by the master, consignor, charterer or agent of a ship over expenditure incurred in connection with the ship;
13) Claims arising from general average act or any act claimed to be general average act;
14) In cases of claims in respect of payment for towage or pilotage of an aircraft.

Suits can be instituted against the owner or parties interested in the vessel or other property proceeded against instead of by name if circumstances so require. However, no person can bring an action in rem for a claim against the Republic, or to arrest, seize or sell any ship or aircraft belonging to the Army, Navy, Air force, Bangladesh Rifles, Bangladesh Police or Coast Guards of the Republic

Action in personam:

An action in personam will lie in all the above cases. However, additional conditions apply in case of in personam actions in collision cases (including damage, death or personal injury). Liability of the ship owner may be limited under Section 471 of the Bangladesh Merchant Shipping Ordinance, 1983. For the court to entertain collision cases, the following conditions must be met:

a) The usual place of residence or business of the defendant is in Bangladesh;

b) The cause of action arose in the internal or territorial water of Bangladesh or in the periphery of any port in Bangladesh;

c) There is already a suit which is either pending before, or already decided by, that Court, which arose from the same or related set of facts.

d) The plaintiff, if he instituted a suit against the same defendant in a Court outside Bangladesh on the same or related set of facts, withdraws from the suit or otherwise terminates it.

e) The defendant in such claim accepts or agrees to accept the jurisdiction of the Court.

The maximum court fee for Admiralty suits is Taka. 1,00,000/= , except for claims by the master or seamen for wages earned on board the ship, or money or other property collectable in court as wages of the master or seamen under Merchant Shipping Ordinance, 1983.

 

Arrest of Ships:

In suits in rem, a warrant for the arrest of property may be issued at the instance either of the plaintiff or of the defendant at any time after the suit has been instituted to obtain security for the claim or to bring the parties within the jurisdiction. No warrant of arrest shall be issued until an affidavit by the party or his agent has been filed stating the name and description of the party at whose instance the warrant is to be issued, the nature of claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not been satisfied. Additional rules apply for wages, possession, bottomry and salvage claims. The Court may in any case, if it thinks fit, allow the warrant to issue, without all required particulars. In a suit in rem, any person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the property under arrest. The party desiring to prevent the arrest of any property may cause a Caveat against the issue of a warrant for the arrest to be entered in the Registry.

Once arrested, a party may obtain the release of any property by paying into the Registry the sum in which the suit has been instituted or by satisfying the court that there is no obligation to pay. Where security is to be given in the Registry, it shall be given according to the rules and practice of the Court as to security in the case of an attachment before judgment in an ordinary civil suit. Usually security is taken in the form of bank guarantees from local banks. Cargo arrested for the freight only, may be released by an order of a Judge in Chambers upon proof by affidavit of the value of the freight and by paying the amount of the freight into the Registry. A party in a suit desiring to prevent the release of any property under arrest can enter a caveat against the release of the property in the Registry.

Enforcement of Judgment:

The Court may enforce the payment of judgment by attachment against the party on whose behalf a caveat has been entered, and by the arrest of the property if no caveat has been entered. Every sale under the decree of the Court shall be made by the Marshal in like manner as a sale of moveable property in execution of a decree in an ordinary Civil suit, unless the Judge otherwise orders. In practice, if bank guarantee is provided, it will be en-cashed in favour of the judgment-debtor. Foreign judgments and arbitration awards are also enforceable.

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