Maritime Law

December 28, 2022

This article is written by Diksha Paliwal, a practising

advocate at the High Court of Indore and a student
of LLM (Constitutional Law). The article gives a
brief concept of maritime law, followed by a
discussion about its history and evolution. The
article further sheds light on critical international
regulations in the field of maritime law and
noteworthy concepts of maritime law in India.

This article has been published by Sneha Mahawar.

 

Introduction
Maritime law is the branch of law that contains a
set of rules and regulations relating to nautical
matters. ‘Maritime’ or ‘Admiralty’ laws are the rules
and regulations that govern the disputes that arise
while working on the sea. These laws govern
nautical matters or any other incidences happening
in open water. 

The evolution of maritime law dates back hundreds

of years. During those times trade between nations
was widely done through sea transport. Gradually,
it became a crucial branch of law. Furthermore,
expanding the scope of this field of law became
increasingly necessary to protect arbitrary claims
by countries over the sea, which is otherwise a
common resource for all of mankind. 

The scope of maritime laws is very broad and

includes a wide spectrum of matters. The article
talks about the history and evolution of maritime
laws. It further discusses important aspects of
maritime law, along with several important
conventions of International maritime laws. The
later part of the article discusses maritime laws in
the Indian context, historical development,
evolution, and current maritime laws.

What is maritime law

In common parlance, maritime law is the body of
laws that regulate nautical matters such as matters
pertaining to delivery delays, lost packages, cargo
damage, and other disputes that may arise while
shipping like damages to the ship, collision,
accidents, and injury to the crew. Maritime laws
deal with a country’s laws that regulate matters of
the sea, whereas, public laws relating to the same
matters come under the purview of the Law of Sea.
These laws are a complex structure of various
national laws and treaties of an international nature.
These maritime laws have evolved drastically with
the changing times.  

It is the fundamental principles, laws, conventions,

and treaties that administer maritime businesses
and other nautical matters like shipping or offences
occurring on open water. It consists of laws, rules,
and regulations to handle the disputes that arise in
navigable waters and protect the persons or
organisations who work on navigable waters, as
well as passengers aboard vessels. 

Maritime laws are greatly influenced by

international customs and practices, which is very
obvious due to the subject matter and field of this
law. These laws deal with a wide range of affairs
and activities of the sea along with matters of
navigable waters, including navigation, shipping,
other marine affairs, ships, sailors, travelling of
passengers through the sea, etc. Ordinarily, these
laws are regulated by national legislation, but they
are shaped by international influences, especially
international conventions and treaties. The
rationale behind this, as stated above, is that
shipping and other such activities are bound to
involve international relations.

Generally speaking, maritime laws apply to

seawater only. The shipping activities carried out in
interior waterways are regulated by other laws and
rules. However, there are certain countries where
the scope of maritime law also includes the matter
of internal waterways. For instance, in Scandinavian
countries, these laws also apply to shipping
activities that have taken place in all the water
bodies, be they lakes, rivers, or canals. 

Difference between admiralty,

maritime laws and law of the sea

Although the two terms ‘admiralty law’ and

‘maritime law’ are used interchangeably, they both
differ from each other significantly. 

The word ‘admiralty’ has limited jurisdiction over a

narrow class of maritime matters, as per the
procedure laid down in civil law. Admiralty pertains
to rem and admiralty law is restricted to the law
that is administered in courts. To put it simply, it
encapsulates the matters of torts and contracts of
the high seas. The latter term, i.e., ‘maritime’
exercises jurisdiction over all the issues arising on
water or relating to the traffic of sea. This has a
wider scope than admiralty.

Maritime law means the legal rules and concepts

relating to the business of carrying goods and
passengers by water. On the contrary, admiralty law
is considered a branch of jurisprudence that
pertains to maritime matters of civil and criminal
nature. Also, it envisages a court or a tribunal
administering maritime law through its separate
and peculiar procedures.

Maritime law deals with private shipping issues and

is generally referred to as the national legislation of
the country, whereas the law of the sea is a branch
of public international law. The law of the sea
governs how individual countries are obligated to
behave in maritime environments. The law of the
sea is related to maritime movement and conduct,
which is applicable internationally. Thus, these laws
are a matter of international affairs.

History and evolution of maritime

laws
The present-time maritime laws are naturally the
product of an outgrowth of the evolution in this
branch. The continuous commercial dealings
between the nations that were actively involved in
the navigation of seas are one of the reasons
behind this evolution. The history of these laws
dates back almost three thousand years. Let’s get a
proper understanding of the history and evolution
of maritime laws.

Transportation of goods between countries, i.e.,

import and export, is an inseparable part of
international trade. These activities constitute a
crucial part of ancient trade channels. Similarly,
rules and regulations governing these sea transport
activities, be they of goods or passengers, have
been in existence since around the 1st millennium
BC. 

The Rhodian Sea Laws

Back in the early days, the Egyptians, Phoenicians,

and Greeks were the ones who were most actively
involved in trading, in the Mediterranean Sea, and
thus, most ancient maritime customs are said to be
derived from their customs. The earliest laws or
codes about maritime go back to the island of
Rhodes, which were in turn influenced by Roman
law. The ‘Rhodian Sea Laws’ are claimed to be the
oldest laws in the field of maritime. Several records
claim that these laws date back to 900 B.C.
However, these came to be widely recognised
around the period of 500 to 300 B.C. Primarily,
these laws were formulated to provide predictable
treatment to merchants and their vessels. As per
the excerpts found in the ancient archives, the
power to dictate the terms and conditions of trade
vested majorly in the hands of Rhodes.

The decline of Greece and the simultaneous rise of

the Roman Empire were said to have affected the
influence of the Rhodian Sea Laws, yet it cannot be
said that these laws completely lost their
popularity. These laws were predominantly in
existence in the Mediterranean Sea for almost one
thousand years, although slight changes were
witnessed after the rise of the Roman Empire. In the
case of contradiction between the Romans and
Rhodian laws, it was observed that the Rhodians
used to decide the matter. However, the Romans
made it crystal clear that the decision made by the
Rhodian laws must not be in contravention of the
Roman laws. 

Interference of the Romans

The Rhodian laws were later on levelled up by the

Romans, to meet the changing scenario. A great
enlargement was witnessed in the customary
maritime laws, where the Romans extended the
applicability of Roman laws and principles to the
existing Rhodian laws. The main enhancement was
in the revival of trade and commerce pursuant to
the growth of Italian Republics and cities along the
Rhine and the Baltic Sea. Special tribunals were
also set up in the Mediterranean port to resolve the
disputes arising among the seafarers. This was a
major development in the branch of maritime law,
since after this the judgments given by the
tribunals were recorded, which in turn led to the
codification of various customary rules. The three
important codes that were found in Roman law
were the ‘Consolato del Mare’ of Barcelona (cities
of the Mediterranean), the ‘Laws of Oleron’ (France
and England), and the ‘Laws of Wisby’ (free cities
of the Hanseatic League on the Baltic). Parts of
these were later formulated into European laws.  

Consulate Of the sea

Among the above three mentioned codes, the

‘Consolato del Mare’ often referred to as
‘Regulation of the Sea’ or the ‘Consulate of the
Sea’, is said to be the oldest of these codes, and
was prepared in Barcelona. This code was said to
be a compilation of almost all the matters
pertaining to maritime. Some of these subject
matters are disputes regarding ownership of
vessels, duties of captains and masters, the duties
of seamen, and matters relating to their wages, etc.
In earlier times the maritime laws were not
formulated by the territorial sovereigns rather it
was the customary laws prevailing at the time. It
was only after the rise of modern nations, that the
territorial sovereigns started formulating maritime
laws. 

Early European codes

Over time, trade commerce in the Mediterranean

region expanded northward and westward, which
led to the development of sea codes in the
northern European ports. The most recognised and
important medieval sea codes among these were –
the ‘Laws of Wisby’ (a Baltic port), the ‘Laws of
Hansa Towns’ (a Germanic league), and the ‘Laws
of Oleron’ (a French island). The oldest code, i.e.,
the ‘Consolato del Mare’ is said to be the
inspirational code, which helped in the making of
these above-mentioned codes. These three codes
are often termed the ‘three arches’ based on which
future maritime laws and regulations were
developed. After the ‘Consolato del Mare’, the
‘Laws of Oleron’ are said to be the second most
important laws in the regime of maritime laws.

The most standardised laws of maritime in the

earlier period are said to have been developed in
the areas belonging to what is now known as the
Continental legal tradition. These developments
proved to be a major part of the formulation of the
early admiralty law of England, which is the origin
of the common law legal tradition and is also one of
the richest maritime states with rich traditions in
shipping.

It is important to note that the admiralty doctrines

of Europe were carried to the USA, which is also an
active shipping nation. These doctrines were
carried to the USA through the English admiralty
law, which was in turn influenced by the ‘three
arches’ of sea codes.

Evolution of maritime laws 

In the early time, maritime laws were mainly found

to be uniform. The reason is that these laws needed
to be like the ones which benefit the whole
community, and not just a few individuals carrying
out naval activities. This uniformity in laws also
proved to be a hindrance to the growth of
nationalism concerning the sea. Uniformity in the
laws in the field of maritime eliminated problems
related to unpredictability and conflict of laws. This
idea of maintaining uniformity was first instigated
by the combined efforts of lawyers and commercial
men, who founded the Comite Maritime
International (CMI) and the National Maritime Law
Associations. This concept continues to grow under
the aegis of the Intergovernmental Maritime
Organisation (IMO) and other United Nations-
affiliated organisations.

The International Maritime Committee (CMI) was

founded in the year 1897, with the view of
maintaining uniformity in the national legislation
pertaining to maritime matters. The Hague Rules
(International Convention on Bill of Lading), the
Visby Amendments (amending the Hague Rules),
and the Salvage Convention are some of the
conventions drafted by the CMI. The International
Maritime Organisation of United Nations
Organisations (UNO) has now taken over many of
the functions of CMI. 

Even the IMO supports the existence of uniformity

in maritime laws to avoid conflicts among various
jurisdictions. Many countries have incorporated the
views of IMO in their national legislation by
adhering to the principles formulated by it.
However, a lot is yet to be achieved; the countries
have still not attained the desired uniformity in
maritime laws.

The present maritime laws are the product of

numerous ancient doctrines along with the new
laws, both national as well as international. Marine
insurance, general average,  salvage, the welfare of
seamen, and the ancient concept of ‘maintenance
and cure’. These are some early concepts of
maritime that are still in existence, and someway or
the other a part of current maritime laws. The
consistent nature of the basic dangers of seafaring
is the prime reason behind the continuous use of
some principles. However, other marine activities
like naval architecture, cargo handling, and many
more have changed significantly. Hence, the
ancient laws needed to be changed as per the
evolving scenario; this is the reason that the
current laws are a unique blend of the ancient
principles as well as the new laws. Some ancient
laws were abolished and some remain intact.

History of Maritime laws in India

The history of maritime laws in India goes back to

more than hundreds of years. Though we did not
have a codified maritime law, due to a rich marine
history of trading in and outside India, there existed
some rules and regulations to govern maritime
matters. It is evident from several historical
documents that a large number of merchants and
traders came to India in the early times to carry on
trade in numerous fields. Thus, several laws, rules,
and regulations were enacted for the smooth
functioning of marine trading. Just like the other
countries, maritime law in India has also witnessed
a fair amount of development in recent years. In the
early time, the jurisdiction of maritime laws in India
vested with the Britishers. 

Components of maritime law

Maritime laws are regarded as a complete system
of law, which includes both public and private
matters, substantive and procedural laws, national
and international legislations, and having its own
courts and jurisdictions.

Maritime lien

A maritime lien is one of the most crucial aspects of

maritime laws. A maritime lien is considered a
maritime privilege in civil law. It is one of the finest
and most noticeable peculiarities of maritime laws.
A maritime lien is a claim against a vessel that can
be imposed or executed through the seizure of a
particular thing or relevant property. This provision
was brought into existence to provide credit to the
ships freely, and simultaneously ensure that the
ship owners do not escape their debts without
making the payment as a way of furnishing security.
The maritime lien provides a right to property in
deference to services offered to it or in case of any
injury caused by the property. This right exists as a
matter of law, irrespective of any change in
ownership. To avail of this claim, retaining the
possession of the vessel by the creditor is not a
requisite condition.

A maritime lien is often called the ‘barnacle’

attached to a ship’s hull, because a maritime lien
concerning a particular ship, travels with that ship,
even if there has been a change in ownership.

The International Convention on Maritime Liens and

Mortgages 1993, in Article 4, defines the concept
of a maritime lien, which enumerates the list of
claims that could be enforced to secure a maritime
lien on the vessel. It can be made against the
owner, demise charterer, manager or operator of
the vessel. This lien provides the right to a person
to necessitate the sale of a ship, which is done to
propitiate the debt owed to him/her on account of
such a vessel. A delay in the enforcement of
maritime lien would result in losing the privilege of
claiming the right. It is also important to note here
that a complete obliteration of a vessel will result in
extinguishing the right of a maritime lien. Also,
there is no such necessary condition that the
claimant should register the maritime lien.

The right of maritime lien not only arises on the

commission of a maritime tort, like, negligent
collision or personal injury, but it also arises in the
case of infringement of maritime contracts, general
average contributions, and salvage services.

Some important judgments

Let’s discuss some judgments of different

international courts as well as Indian courts to
understand the concept of a maritime lien.

The High Court of the Solomon Islands, in the case

of Wahono v. The Ship MV Yung Yu No 606 (2001),
held that in common law, the claims pertaining to
maritime lien can also attach to freight or cargo,
which in turn includes the catch of fishing vessels
as well.

In the case of Maruwa Shokai (Guam) Inc v. Pyung

Hwa 31 and ors. (1993), the Supreme Court of the
Federated States of Micronesia held that the claim
in respect of maritime lien includes transhipment
costs as well, as ‘necessaries’. To clarify this
concept the Court went on to say that the term
‘necessaries’ includes ‘things reasonably needed in
the business of vessels or ships.’

In the case of the State of Goa v. Sale Proceeds of

the Vessel MT Pratibha Bheema (2018), a vessel
was anchored at the Panaji Port. It was, later on,
found that the vessel developed a technical snag.
Due to the bad weather conditions, the plaintiff, i.e.,
the State of Goa, towed the vessel to Mormugao
Port. In the meantime, the vessel was sold while it
was anchored to the port. It is to be noted that at
the time of sale, the vessel was in an area
controlled by the plaintiff. Owing to this fact, the
plaintiff demanded some charges from the sale
proceeds. The issue before the court was to
determine whether the claim made by the plaintiff
was secured by a maritime lien. The Court had to
determine whether this claim comes under the
purview of Article 1(l) of the International
Convention for the Unification of Certain Rules
Relating to the Arrest of Seagoing Ships, 1952 and
Article 1(n) of the International Convention on the
Arrest of Ships, 1999. The Court held that being a
signatory to the conventions mentioned above, the
plaintiff’s claim falls under the category of a
maritime lien.

In the case of Bank One Louisiana N.A. v. M/V Mr

Dean (2002), the Court dealt with the issue that
when a maritime lien for breach of charter arises.
The court stated that a maritime lien is the basis of
the proceeding in rem. It is a process to perfect a
right, which is elementary from the moment the lien
attaches. The court thus held that a maritime lien
attaches at the beginning of a charter.

Shipping charters

Shipping charters are the contracts governing this

transportation of goods by ships carried out either
by the charter parties or by bills of lading. 

Types of shipping charters

The term ‘charter party’ mainly contains three

crucial types of contracts about the use of vessels
owned and controlled by others. These three
charters are demise charter, time charter and
voyage.

Bareboat charter

In a ‘demise’ charter, also known as a ‘bareboat’

charter, the possession of the vessel is handed
over to the charterer by the ship owner, who in turn
performs the rest of the activities. The charterer,
after the delivery of possession, employs the crew
and manages them, arranges the necessary repairs
and supplies, and all the other general functions,
just like the ship owner would have carried out. 

Time charter

The second category of the charter is the ‘time’

charter. Under this charter, a crew and a master are
employed by the shipowner, and the charterer is
only authorised to direct the movements of vessels.
Herein, the charterer is also authorised to
determine the cargoes to be carried out during the
charterer period. The charterer under this charter
has very limited authority. 

Voyage charter

The third category of the charter is the ‘voyage’

charter. It is a contract of carriage or affreightment.
Under this charter, it is a customary norm that the
master or his agent issue a bill of lading to the
shipper, and the voyage charter remains a
governing contract of carriage. The bills of lading
only serve the purpose of receipt and a document
of title to the goods. Ordinarily, the voyage charters
deal with the carriage of full cargoes on one or a
series of voyages. However, in certain cases, the
charterer is only allowed to use a particular portion
of the carrying capacity of a vessel. In such
exceptional cases, the contract is termed a ‘space’
charter.

Limitation of liability

A very distinctive feature provided under the

maritime laws is the option where the ship owners
or certain other persons have the choice of limiting
their liability, in some exceptional cases of tort and
contract claims. 

In some countries, the extent of the limit is decided

based on the value of the vessel and the earnings
of the voyage where it met with the casualty.
However, claims for personal injury and wrongful
death are excluded from this method of deciding
the limitation. On the contrary, some countries have
ratified the Brussels limitation of liability convention
of 1957 or where new domestic legislation has
been enacted, the limit is set as £28, or its
equivalent, and this limit is in turn multiplied by the
adjusted net tonnage of the vessel, irrespective of
the actual value of the vessel. The necessary
condition for availing of this privilege must be free
from privity or knowledge. Simply put, the person
asserting this must be free from any actual fault or
privity. The term ‘actual fault’ connotes that the
person who is availing the privilege of this principle
is entitled to limit his liability, only up to an extent of
his crew’s negligence, i.e., the shipowner should
not be negligent on his part.

The shipowner will be set free from liability up to an

extent, where negligence has been done on the
part of the master or crew. The shipowner cannot
be released from liability if the casualty has been
caused because of his own negligence or that of
his managerial personnel.

Collision liability

The responsibility for collision damage under

maritime law is based on the foundation of the fault
principle. It states that a colliding vessel will not be
held accountable for damaging another ship or any
fixed object like a bridge, wharf, etc. unless the
reason behind the collision was insufficiency or
deficiency in the colliding vessel. It will also be held
accountable if there has been negligence or a
willful act on the part of the navigators. Ordinarily,
the onus of proof lies with the moving vessel. 

Salvage

Under the purview of the doctrine of salvage, the

aliens to the maritime ventures who save the
maritime property from any casualty from the
dangers of open water, are entitled to be provided
with an award. This is to acknowledge their efforts