9911796707
TMI Blog1980 (12) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... essels at the time they were purchased by the petitioners. They were thereafter fitted up with equipment for transhiping mining ore from barges or from its holes to bigger iron ore carriers. Priyadarshini is a sea going vessel also used from the inception for transhipping iron ore. The three transhippers are not inland vessels within the meaning of the Indian Steam Vessels Act, 1917. They are sea going or in other words ocean going vessels within the meaning of the Government of India, Ministry of Finance (Department of Revenue) Notification No. 262-Customs dated 11th October, 1958 which exempts ocean going vessels from payment of customs duty leviable thereon. 3. When the Transhippers were brought into India, the respondents required the petitioners to file a bill of entry for the purpose of payment of customs duty. The petitioners contended that the Transhippers were exempted from customs duty and declined to file bill of entries. As the respondents insisted in the filing of bill of entry for the purpose of levying customs duty, the petitioners filed various proceedings and eventually came to this Court with the first the Writ Petitions. 4. The remaining four Writ Petitions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial to consider whether the hopper barge was used in navigation within the meaning of Merchants Shipping Act, 1854, section 2, because that enactment directs that the word "ship" shall include every description of vessel used in navigation not propelled by oars. I do not exclude other meanings of the word. I agree that to hold that a mud barge is a ship may seem to go very far in the way of interpretation. But we must not overlook the conclusions of holding that the hopper barge is not a ship". Lord Coleridge, C.J. disagrees with the Court below and states: "The Court below fails to deal with the question whether the hopper barge may not be considered a ship in the ordinary popular sense of the word. I decide that the barge is a ship in the common meaning of that term" and Lord Brett, C.J. and Cotton L.,J.J. concurred with him. Brett, C.J. in his judgment observed : "In this case the vessel, if she may be so called, was built for a particular purpose. She was built as a hopper barge; she has no motive power, no means of propulsion within herself. Towing along will not conduct her. She must have a rudder and therefore she must have men on board to steer her. Barges are vessels in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loating pump as the defendants say. Justice Jones observed: "The definition of a ship is a vessel. A ship includes every description of vessel used in navigation not propelled by oars. In many respects this structure was shaped like a ship. It had a deck and hatches, companion ladders and other equipment characteristic of a ship, but it was flat bottomed, it was similarly shaped at each end and had no rudder or means of propulsion. It seems easy to decide that it was a vessel, but less easy to say that it was used in navigation. At the time of the plaintiff's accident it was being used in process of dredging and land reclamation. It was described by the defendant as a "reclamation dredger". It was not used to bring anything up from The bed of a Harbour, channel or river. This sludge was not transferred to the structure, but an engine on it forces this sludge from the barge through a pipeline that ran on wooden supporters from the place where the structure was moored to the shore where it was discharged and used for the purpose of reclamation of land. The structure had been moored in this place for 18 months before the day of the plaintiff's accident but it was not kept permanently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sels, but the argument was not pressed. In fact, such a distinction could be based only if a demarcating line could be drawn between an ocean and the see and if in fact there had been any clear difference between an ocean and a sea. An ocean is a vast expanse of water which includes the water mass building into the land mass. An ocean includes sea. Had it not been so a foreign going vessel crossing the Arabian sea from India to Africa would be only a sea going vessel, whereas a vessel voyaging off the course of Ceylon would be an ocean going vessel. "deep sea" and "open sea" were other phrases used by Shri Baptista in his attempt to draw a distinction between sea going and ocean going vessels. The Merchants Shipping Act makes no difference between sea going vessels and ocean going vessels. No separate definition is given of ocean going vessels. Sea going and ocean going vessels are grouped together under the generic name of sea going vessels, in clause 41 of section 3 of the Act. Under the Customs Act, 1962 also no distinction is made between a sea going vessel and an ocean going vessel. The question as to whether a vessel is a sea going vessel or an ocean going vessel, is not rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shipping who is a specialised Department in shipping matters indicates that Priyadarshini had the characteristics of a vessel though it was not self propelled. 25. The Transhippers are manned by officers possessing certificates of competency issued under the Act. These certificates are required only for officers to be employed in sea going or home trade vessels. The transhippers are equipped with radio telegraphy, rudder and signalling equipment which is required to be fitted only to sea going vessels. The transhippers are also equipped with safety fire fighting and life saving equipment which are required only for sea going vessels. They have been allotted by appropriate Agencies of the Government of India an international call signs, which signs also are allotted only to vessels plying on high seas and are not allotted to inland vessels. The Asst. Wireless Adviser to the Government of India granted to the ship a Maritime Mobile Station licence which bears the No. 000218. The Transhippers have crew accommodation as required for sea going vessels. 26. From the certificate of Indian Registry issued by the Directorate General of Shipping the Priyadarshini has one deck, two ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of these permissions obtained from the Government of India and the Reserve Bank, they had substantially complied with the provisions requiring the petitioners to obtain an import licence for the said spares. Therefore, they conclude, they were not required to obtain an important licence. 30. The contention of the respondents is that in the present case there was no transhipment and that therefore Clause 11(1) (d) of the Import (Control) Order, 1955 was not applicable. 31. I agree with the respondents. The two Transhippers are not foreign going vessels because at the relevant time they were not engaged in carrying goods or passengers between any port in India and any port outside India. I am also unable to agree with the argument of the petitioners that by obtaining specific permission from the Government of India for importing the spares and by obtaining the release by the Reserve Bank of India of the necessary foreign exchange, they had substantially complied with the provisions of law requiring them to obtain an import licence. In the result Writ Petitions Nos. 2 of 1972, 9 of 1972 and 71 of 1972 are allowed and the prayers therein are granted. Writ Petitions Nos. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
