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Indian law on Wreck
Many questions regarding standards for registration of vessels have brought to light the inadequacy of the existing legal provisions in India pertaining to the responsibility and liability for maritime wrecks and their removal.
There are three problems with wrecks.
First, and depending on its location, a wreck may constitute a hazard to navigation, potentially endangering other vessels and their crews;
second, and of equal concern, depending on the nature of the cargo, is the potential for a wreck to cause substantial damage to the marine and coastal environments;
and third, in an age where goods and services are becoming increasingly expensive, is the issue of the costs involved in the marking and removal of hazardous wrecks.
For a uniform set of international rules and procedures to ensure prompt and effective removal of wrecks and payment of compensation for the costs incurred for the same, under the auspices of the International Maritime Organization recently convened and adopted an international convention on wreck removal in Nairobi, Kenya.
The Nairobi International Convention on the Removal of Wrecks, 2007, (hereinafter referred to as the ‘Convention’) is expected to fill the vacuum in international maritime law with respect to wrecks and their removal. The convention is not yet in force and is open to signature from November 2007.
Indian statutes dealing wrecks is yet to be appropriately amended so as to meet the felt necessities of the time.
The Indian Merchant Shipping Act, 1958 defines ‘wreck’ in an inclusive manner so as to take in both ‘goods’ and ‘vessels’ [Sec.2 (58)].
The definition from its very wording cannot be construed as exhaustive as to what constitutes a wreck. For being treated as a wreck, goods or vessels, they are to be found either in the ‘sea’ or in ‘tidal waters’ or on ‘shores’. The term ‘sea’ has not been defined in the Act and hence will have to be understood as envisaged in the Indian Maritime Zones Act.
Provisions of law
WRECK AND SALVAGE
390.Definition of coasts.- In this Part, the word "coasts" includes the coasts of creeks and tidal rivers.
391.Receivers of wreck.- (1) The Central Government may, by notification in the Official Gazette, appoint any person t be a receiver of wreck (in this Part referred to as receiver of wreck) to receive and take possession of wreck and to perform such duties connected therewith as are hereinafter mentioned, within such local limits as may be specified in the notification.
(2) A receiver of wreck may, by order in writing, direct that all or any of this functions under this Part shall, in such circumstances and subject to such conditions, if an by as maybe specified in the order, discharged by such person as maybe specified therein and any person while discharge any such functions shall be deemed to be a received or wreck for the purposes of this Act.
392.Duty of receiver where vessel is in distress.- Where any vessel is wrecked, stranded or in distress at any place on or near the coasts of India, the receiver of wreck, within the limits of whose jurisdiction the place is situation shall upon being under acquainted with the circumstance, forthwith proceed there, and upon his arrival shall take command of all persons present and shall assign such duties and give such directs to each person as he thinks fit for the preservation of the vessel abed of the lives of the persons belonging to the vessel and of its cargo and equipment:
Provided that the receiver shall not interfere between the master and the crew of the vessel in reference to the management thereof unless he is requested to do so by the master.
393.Power to pass over adjoining lands.- (1) Whenever a vessel is wrecked, stranded or in distress as aforesaid, all persons any, for the purpose of rending assistance to the vessel or of saving the lives of the shipwrecked persons, or of saving the cargo or equipment for the vessel, unless there is some public read equally convenient, pass and repass, either with or without vehicles or animals, over any adjoining lands without being subject you instruction by the owner r occupier, so that they do as little damage as possible and may also on the like condition,.deposit on these lands any cargo or other article recovered from the ship.
(2) Any damage sustained by an owner or occupier in consequence of the exercise of the rights given by this section, shall be a charge on the vessel.cargo or articles in respect of by which the damage shall in case of dispute, be determined by magistrate on application made to him in this behalf
394.Power of receiver of wreck to suppress plunder and disorder by force.- Whenever a vessel is wrecked, stranded or in distress as aforesaid, and any person plunders, creates or obstructs the preservation of the vessel or of the wrecked persons or of the cargo equipment of the vessel, the receiver of wreck may take such steps and use such force as he, any cops order necessary for the suppression of any such plundering, disorder or obstruction,.and my for that purpose command any person to assist him.
395.Procedure to be observed by persons finding wreck.- Any person finding and taking possession of any wreck within any local limits for which there is a receiver of wreck, or bringing within such limits any wreck which has been found and taken possession of elsewhere, shall, as soon as practicable-
(a) if he be the owner thereof, give the receiver of wreck notice in writing of the finding thereof and of the marks by which such wreck is distinguished;
(b) if he be not the owner of such wreck, deliver the same to the receiver of wreck.
396.Investigation of certain matters in respect of vessels wrecked.- Whenever any vessel is wrecked, stranded or in distress as aforesaid, the receiver of wreck within the local limits of whose jurisdiction the vessel is wrecked, standard or in distress may conduct an investigation into all or any of the following matters, that is to say,-
(a) the name and description of the vessel;
(b) the names of the master and of the owners;
(c) the names of the owners of the cargo;
(d) the ports from and to which the vessel was bound;
(e) the occasion of the wrecking, standing, or distress of the vessel;
(f) the services rendered; and
(g) such other matters or circumstances relating to the vessel.the cargo or the equipment, as the receiver thinks necessary.
397.Notice to be given by receiver.- The receiver of wreck shall as soon as may be after taking possession of any wreck, publish a notification in such manner and at such place as the Central Government may, by general or special order, direct, containing a description of the wreck and the time at which and the place where it was found.
398.Immediate sale of wreck by receiver in certain cases.- A receiver of wreck may at any time sell any wreck in his custody if, in his opinion,-
(a) it is under the value of five hundred rupees; or
(b) it is so much damaged or of so perishable a nature that it cannot with advantage be kept; or
(c) it is not of sufficient value for warehousing;
and the proceeds of the sale shall, after defraying the expenses thereof, be held by the receiver for the same purposes and subject to the same claims, rights and liabilities as if the wrack had remained unsold.
399.Claims of owners to wreck.- (1) The owner of any wreck in the possession of the receiver upon establishing his claim to the same to the satisfaction of the receiver within one year from the time at which the wreck came into the possession of the receiver shall, upon paying the salvage and other charges, be entitled to have the wreck or the proceeds thereof delivered to him.
(2) Where any articles belonging to or forming part of a vessel other than an Indian vessel which has been wrecked or belonging to and forming part of the cargo of such vessel, are found on or near the costs of India or are brought into any port in India, the consular officer of the country in which the vessel is registered or, in the case of cargo, the country to which the owners f the cargo may have belonged shall, in the absence of the owner and of the master or other agent of the owner, be deemed to be the agent of the owner, with respect to the custody and disposal of the articles.
(3) Where the owner of the wreck does not appear and claim the balance of the proceeds of sale within one year from the date of sale, the said balance shall become the property of the Central Government.
400.Prohibition of certain acts in respect of wreck.- No person shall-
(a) without the leave of the master board or attempt to board any vessel which is wrecked, standard or in distress as aforesaid, unless the person is, or acts by command of, the receiver of wreck; or
(b) impede or hinder or attempt in any way to impede or hinder the saving of any vessel standard or in danger of being stranded or otherwise in distress on or near the coasts of India or of any part of the cargo or equipment of the vessel, or of any wreck; or
(c) secrete any wreck or deface or obliterate any marks thereon; or
(d) wrongfully carry away or remove any part of a vessel stranded or in danger of being stranded or otherwise in distress, on or near the coasts of India, or any part of the cargo or equipment of the vessel or any wreck.
401.Search warrants where wreck is concealed.- Where a receiver of wreck suspects or receives information that any wreck is secreted or in the possession of some person who is not the owner thereof or that any wreck is otherwise improperly dealt with, he may apply to the nearest magistrate for a search warrant, and that magistrate shall have power to grant such warrant and the receiver of wreck by virtue thereof may enter any house or other place wherever situate and also any vessel and search for, seize and detain any such wreck there found.
402.Salvage payable for saving life, cargo or wreck.- (1) Where services are rendered-
(a) wholly or in part within the territorial waters of India in saving life from any vessel, or elsewhere in saving life from a vessel registered in India; or
(b) in assisting a vessel or saving the cargo or equipment of a vessel which is wrecked, stranded or in distress at any place on or near the coasts of India; or
(c) by any person other than the receiver of wreck in saving any wreck;
there shall be payable to the salvor by the owner of the vessel, cargo, equipment or wreck, a reasonable sum for salvage having regard to all the circumstances of the case.
(2) Salvage in respect of the preservation of life when payable by the owner of the vessel shall be payable in priority to all other claims for salvage.
(3) Where salvage services are rendered by or on behalf of the Government or by a vessel of the Indian Navy or the commander or crew of any such vessel, the Government, the commander or the crew, as the case may be, shall be entitled to salvage and shall have the same rights and remedies in respect of those services as any other salvor.
(4) Any dispute arising concerning the amount due under this section shall be determined upon application made by either of the disputing parties-
(a) to a magistrate, where the amount claimed does not exceed ten thousand rupees; or
(b) to the High Court, where the amount claimed exceeds ten thousand rupees.
(5) Where there is any dispute as to the persons who re entitled t the salvage amount under this section , the magistrate or the High Court, as the case may be, shall decide the dispute and if there are more persons than one entitled to such amount, the magistrate or the High Court shall apportion the amount thereof among such persons.
(6) The costs of and incidental to all proceedings before a magistrate or the High Court under this section shall be in the discretion of the magistrate or the High Court, and the magistrate or the High Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purpose aforesaid.
403.Savings.- Nothing in this Part shall-
(a) affect any treaty or arrangement with any foreign country to which India is a operate with reference to the disposal of the proceeds of wrecks on their respective coasts; or
(b) affect the provisions of section 29 of the Indian Ports Act, 1908 (15 of 1908), or entitle any person to salvage in respect of any property recovered by creeping or sweeping in contravention of that section.
404.Power to make rules respecting wreck and salvage.- (1) The central Government may, make rules to carry out the purposes of this Part.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) the procedure to be followed by a receiver of wreck in respect of the taking possession of wrecks and their disposal;
(b) the fees payable to receivers in respect of the work done by them;
(c) the procedure to be followed for dealing with claims relating to ownership of wrecks;
(d) the appointment of values in salvage cases;
(e) the principles to be followed in awarding salvage and the apportioning of salvage;
(f) the procedure to be followed for dealing with claims for salvage;
(g) the detention of property in the custody of a receiver of wreck for the purpose of enforcing payment of salvage.