Director General Of Shipping's 2022 Order For Certification Of Accommodation Barges Inapplicable To Non-Indian Vessels: Bombay HC
The Bombay High Court held that the order passed by the Director General of Shipping in 2022 for the certification of accommodation barges is inapplicable to vessels which are not Indian Ships registered under the Merchant Shipping Act of 1858.
In that context, the Bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla observed that, "we are of the prima facie opinion that ex facie the provisions of 1958 Act are not applicable to the petitioner’s vessels which are subject matter of the impugned detention orders. This, considering the clear provisions of the Merchant Shipping Act, 1958 which we have referred hereinabove, and more particularly on a cumulative reading of Section 2 read with provision of Section 3 (18) and 3 (45) which defines “Indian ship” and “ship” respectively, as also the provisions of Section 405 and 406 as sought to be applied under Clause 30 of the impugned order. The reason being that it is not in dispute that the vessels / barges of the petitioner are of the category which are fitted with mechanical means of propulsion as Section 405 would ordain. It appears that even the rule making power as conferred by Section 288 of the 1958 Act applies to the rules to be made prescribing life saving appliances to be carried by every “Indian ship” going to the sea from any port or place in India. Thus, necessarily no rules can be framed under Section 288 in regard to a ship or vessel which is not of the category of an Indian ship as defined under Section 3 (18) of the 1958 Act."
Senior Counsel Virendra Tulzapurkar, along with others, appeared for the petitioner, while Counsel YR Mishra appeared for the respondents.
The petitioner, Hind Offshore Pvt. Ltd., challenged detention orders issued on May 8, 2023, May 22, 2023, and June 3, 2023, citing non-compliance with a general order issued by the Director General of Shipping, Mumbai (DGS) on October 20, 2022. This order imposed additional conditions for certification of offshore vessels in the Indian Exclusive Economic Zone, including the installation of lifeboats.
Hind Offshore Pvt. Ltd. argued that the October 20, 2022, order issued under the Merchant Shipping Act, 1958, did not apply to vessels registered under the Coastal Vessels Act, 1838. Their non-self-propelled barges used as accommodation barges were registered under the Coasting Vessels Act of 1838, making the provisions of the 1958 Act inapplicable. It was argued that their vessels did not qualify as "Indian ships" under the 1958 Act as they were not registered at any Indian port when the Act commenced.
The Union of India defended the impugned order as necessary for public safety, especially in emergencies like cyclones, and claimed that the petitioner had assured compliance, justifying the detention of vessels for non-compliance.
It was held that the respondent had no jurisdiction to detain the petitioner's vessel under the impugned order, as the order had its origin under the 1958 Act and would therefore be applicable only to vessels covered under the Act.
The Court passed an interim order and directed the respondents to release the petitioner's vessels, which would be permitted to be used for the contract and as law would permit.
Appearances:
Petitioner: Senior Counsel Dr Virendra Tulzapurkar, Counsels Amrut Joshi, Yagad Udwadia, Nitin Parkhe, Jacob Kadantot
Respondents: Counsel YR Mishra
Cause Title: Hind Offshore Pvt Ltd vs The Union of India & Ors.
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