9911796707
TMI Blog2012 (10) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... itorial sea the casualty has occurred. Para 4 of M.S. Notice 26 of 2002, however, states that for the purpose of effective casualty investigation, it is imperative that the Maritime Administration of the State, whose nationals are involved in the marine casualty, by virtue of being ship’s crew, is required to be invited to take part in the marine casualty investigation, as a substantially interested State, by the State conducting the investigation. Thus, respondent nos. 1, 2 and 3 became aware of the casualty for the first time when they received the communication dated 10.10.2005 about the incident from respondent no.4 and the Surveyor Incharge-cum-Deputy Director General of Shipping by letter dated 19.10.2005 requested Saint Vincent and the Grenadines to carry out the investigation into the casualty as Indian nationals were part of the crew of Jupiter-6. On these facts, it is difficult to hold that the Union of India was guilty of violation of the right to life and was liable for compensation to the petitioners. In the present case, Jupiter-6 was a ship bearing the flag of Saint Vincent and the Grenadines and was also covered by insurance and the insurers have deposited F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the husbands of petitioner nos. 1, 2 and 3 and the sons of petitioner nos. 4 and 5 were recruited and placed through respondent nos. 4 and 5 to work as Seafarers on tugboat Jupiter-6 carrying the flag of Saint Vincent and the Grenadines. On 21.08.2005, Jupiter-6 along with its crew comprising 10 Indians and 3 Ukrainians, left Walvis Bay in Namibia and was towing a dead ship Satsung on its way to Alang in Gujarat in India. On 05.09.2005, Jupiter-6 went missing in the high seas. On 10.10.2005, respondent no. 4 informed the Director General of Shipping, Bombay, that it had received a distress signal from Jupiter-6 via its life saving radio equipment on board and a search was conducted from the place where distress signal originated, which was 220 nautical miles South of Port Elizabeth, South Africa, but Jupiter-6 could not be located. Pursuant to reports in a section of the media about the missing of Jupiter-6 since 08.10.2005, the Director General of Shipping, Bombay, issued a press release on 15.10.2005 that the Ministry of Shipping and Road Transport and Highways had alerted the Indian Coast guard which, in turn, has alerted the South African Search and Rescue Region as Jupite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r General of Shipping has issued M.S.Notice No.26 of 2002 dated 10.10.2002 in regard to the procedure to be followed in the event of marine casualties and incidents involving Indian citizens on board of foreign flag vessels. To ascertain whether there is any basis for the grievance put forth by the petitioners, we, therefore, direct the Directorate to collect, analyze and prepare a report with reference to the following information and file the same with an affidavit of a responsible officer from the office of the Director General of Shipping. (a) How many reports of marine casualties have been received by the Indian Government after 10.10.2002 involving Indian citizens on board of foreign flag vessels and how many are received within 48 hours of the occurrence of the incident as required by the Directorate? (b) In how many of such cases reports have been received by the Directorate from the manning agents of the ships in India who recruited the seafarers as required by clause 5(a) and (b) of M.S. Notice dated 10.10.2002? (c) In how many cases, Indian Government has been invited to participate in the marine casualty investigation by the lead State or the flag State (as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim payment without prejudice to the rights and contentions of both the parties and the same will be despatched within 10 days from today and that they will get in touch with the insurers for release of the amounts to the missing crew family members expeditiously. We make it clear that receipt of any amount by the family members of the missing crew may receive any compensation tendered or paid by the managers or insurers will be without prejudice and receipt of such payment will not prejudice their case in any manner. 5. A reading of the para 4 of the order dated 24.09.2008 would show that this Court limited the scope of the writ petition to two issues: (i) the safety of Indian citizens on board of foreign flag vessels and (ii) in case such Indian citizens on board a foreign flag vessel lost their lives, the compensation payable to their kith and kin. On the first issue, the Court called upon the Union of India to furnish the necessary and sufficient details with regard to implementation of the Conventions and Codes relating to marine casually incidents and on the second issue, the Court called upon respondents 4 and 5 to release interim compensation to the family members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he high sea on 05.09.2005, the respondent no.4 informed the Government about the loss of Jupiter-6 35 days after 05.09.2005, i.e. on 10.10.2005, and the Government did not conduct any investigation into the incident and issued death certificates on 17.08.2006 saying that the crew members of Jupiter-6 are presumed to be dead. They submitted that under M.S. Notice 26 of 2002 the manning agents who have recruited the seafarers on board the foreign flag vessel, in the present case respondent nos.4 and 5, were required to inform the Government about the marine casualty within three days of the incident and as the Indian nationals were involved in the marine casualty, the Government of India was required to conduct a marine casualty investigation forthwith. They submitted that under the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2005 (for short the Rules 2005) and in particular Rule 3 thereof, the Government was also required to conduct an investigation when a complaint is received against the Recruitment and Placement service providers, but no such enquiry has been conducted by the Government on the complaint regarding missing of Jupiter-6 despite complaints havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the decision of this Court in Lata Wadhwa Ors. v. State of Bihar Ors. [(2001) 8 SCC 197] in which this Court, while exercising its powers under Article 32 of the Constitution, directed payment of higher compensation for each of the claimants on account of deaths in a fire tragedy by Tata Iron and Steel Company Limited. They also relied on the recent decision of this Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy Ors. [AIR 2012 SC 100] in which this Court enhanced the compensation payable to the claimants on account of death and injury in a fire tragedy in Uphaar Cinema Hall. They submitted that similar directions for determination of the higher compensation by the Registrar of this Court may be given in this case also. 9. Learned counsel for the petitioners finally submitted that though Rules 2005 mandates that insurance coverage has to be provided to Indian seafarers, it does not mention the amount for which the insurance coverage is to be done. According to the learned counsel for the petitioners, this lacuna in law in respect of quantum of insurance coverage should be filled up by this Court by invoking its powers under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Collective Bargaining Agreements. He submitted that under Section 338 of the Shipping Act, 2004 of Saint Vincent and the Grenadines, the Flag State of Jupiter-6, the limits of liability of the ship owner have been fixed for claims arising on any distinct occasion and the compensation deposited in this Court at the rate of 40,000 US Dollars in case of death of officers and 25,000 US Dollars in case of death of non- officers is in accordance with the provisions of Section 338 of the Shipping Act, 2004 of Saint Vincent and the Grenadines. He vehemently argued that since the aforesaid compensation amount has been deposited for disbursement to the legal heirs of the deceased seafarers, respondent nos.4 and 5 are not liable for any amount of compensation and this Court should not, therefore, direct for any higher amount of compensation than what has been deposited. 11. Mr. H.P. Raval, learned Additional Solicitor General for respondent nos.1, 2 and 3, submitted that the Merchant Shipping Act, 1958 does not apply to seamen on board of a ship or a vessel of a foreign country. He referred to the counter affidavit filed on behalf of respondent nos.1, 2 and 3 on 03.01.2008 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no.5) was liable for violation of the right to life guaranteed under Article 21 of the Constitution and was liable for any compensation to the petitioners for not causing a marine casualty investigation when Jupiter-6 went missing in the high seas. Jupiter-6 was carrying the flag of Saint Vincent and the Grenadines, although it had on its board some Indian seafarers. The Director General of Shipping has issued M.S. Notice 26 of 2002, which lays down the procedure with regard to marine casualty investigation involving Indian citizens on board foreign flag vessels. M.S. Notice 26 of 2002 states that India is a major supplier of manpower to global shipping and in the recent past it has been observed with concern that many of the accidents/ incidents at sea involving Indian citizens on board foreign flag vessels have not been reported to the Indian Maritime Administration. It also states that the Code for Investigation of Marine Casualties and Incidents had been adopted on 27.11.1997 by the IMO Assembly in its 20th Session and the code provides for casualty investigation with the involvement of different interested States. It has been further clarified in para 2 of M.S. Notice 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e connected with this scenario. 2. Piracy/hijacking Piracy/hijacking is not common in this area. Suspicion of Piracy/hijacking remains valid as there was 180 MT of diesel oil on board the tug. For the time being our conclusion about the Manager s actions regarding this accident are as follows: The disappearance of m.v. Jupiter 6 along with her crew remains an enigma. Thus, respondent nos. 1, 2 and 3 became aware of the casualty for the first time when they received the communication dated 10.10.2005 about the incident from respondent no.4 and the Surveyor Incharge-cum-Deputy Director General of Shipping by letter dated 19.10.2005 requested Saint Vincent and the Grenadines to carry out the investigation into the casualty as Indian nationals were part of the crew of Jupiter-6. On these facts, it is difficult for us to hold that the Union of India was guilty of violation of the right to life and was liable for compensation to the petitioners. 14. In Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy Ors. (supra) cited by the learned counsel for the petitioners, the Delhi High Court had held the theatre owner (licensee), Delhi Vidy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have performed their duties better or more efficiently, they cannot be made liable to pay compensation to the victims of the tragedy. There is no close or direct proximity to the acts of the Licensing Authority and MCD on the one hand and the fire accident and the death/injuries of the victims. But there was close and direct proximity between the acts of the Licensee and DVB on the one hand and the fire accident resultant deaths/injuries of victims. In view of the well settled principles in regard to public law liability, in regard to discharge of statutory duties by public authorities, which do not involve mala fides or abuse, the High Court committed a serious error in making the licensing authority and the MCD liable to pay compensation to the victims jointly and severally with the Licensee and DVB. K. S. Radhakrishnan, J, while fully endorsing the reasoning as well as the conclusions reached by R.V. Raveendran, J, was also of the view that Constitutional Courts can, in appropriate cases of serious violation of life and liberty of individuals, award punitive damages, but the same generally requires the malicious intent on the side of the wrong doer, i.e., an intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for compensation of any claim in respect of life or personal injuries is of the ship owners/salvors or their insurers and respondent nos. 4 and 5 are neither the ship owners/salvors nor their insurers. 16. As far as respondent nos. 4 and 5 are concerned, they are holding a recruitment and placement service licence issued under Rule 4 of the Rules 2005. Rule 3(1)(j) provides that the inspecting authority shall carry out an inspection of recruitment and placement service so as to ensure that the seamen s employment office concerned and next of kin of the seafarer is informed of each death or disability of the seafarer within 48 hours of such death or disability in Form-V. Rule 6 of the Rules 2005 further provides that where there is an adverse report of the inspecting authority or complaint by a seafarer or otherwise, the Director General of Shipping can authorize the Director to issue a show cause notice in Form-VII to the recruitment and placement service licence provider requiring it to show cause within a period of thirty days from the date of issue of such notice as to why the licence shall not be suspended or withdrawn and to suspend or withdraw the licence after consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution, we do not think that we should venture to do so in this case considering the numerous factors which are to be taken into consideration in making the law relating to maritime casualty and the compensation payable in case of death of Indian seafarers. We have, however, taken note of the additional affidavit filed on behalf of respondent nos. 1, 2 and 3 on 19.07.2011 in which the proposal for setting up an Indian Maritime Casualty Investigation Cell and for amending the 2005 Rules have been indicated. In our view, it will be enough for us to recommend to the respondent no.1 to expedite the proposals which have been under consideration of the Government and to take immediate steps to amend the Merchant Shipping Act, 1958 and the Rules 2005 in a manner they deem proper to ensure that the life of seafarers employed in different ships in high seas are made more secure and safe and in case of loss of life, their kith and kin are paid adequate amount of compensation. 19. This writ petition is disposed of with the aforesaid observations and with a direction to the Registrar (J) to expedite the payment of compensation to the legal heirs of the victims in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
