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TMI Blog2006 (3) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... given their wages till date due to a narrow approach. State should always be fair and reasonable in settling the lawful claims. It is seen from the counter affidavit filed by the Customs Department that the ship was sold for Rs. 2.36 Crores through tender sale and the Cargo was sold off by customs through auction and a sum of Rs. 18.75 Crores was realised. The seamen can claim their wages only from and out of the sale proceeds of the vessel. We, therefore, unhesitently hold that all the seamen who were on board the vessel Kobe Queen I also known as Gloria Kopp are entitled to their full wages and perks. We, therefore, direct the Commander Coast Guard Region (East), Fort St. George, Chennai - 600 009 and the other respondents including the Customs Department and the concerned Department of the Government of India to pay the wages forthwith to all the crew members who were on board in the vessel Kobe Queen I also known as Gloria Kopp at any rate not later than three months from the date of this judgment through the Consulate of the country concerned. Appeal allowed. - 3877-3878 of 2001 - - - Dated:- 23-3-2006 - H.K. Sema and Dr. A.R. Lakshmanan, JJ. [Judgment per : A.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench of the High Court. The High Court noted the withdrawal of prayers by respondent No. 2 and permitted respondent No.1 Coast guard to deal with the crew, vessel and the cargo. The Commissioner of Customs issued a show cause notice to the Chief Officer of the ship calling upon him to explain why the cargo cannot be confiscated and penalty should not be imposed on the persons under Section 112(a) of the Customs Act, 1962. The counsel for the crew sent a reply mentioning the non-involvement of the crew in dealing with any narcotics/drugs and prayed that the crew be paid their wages and the cargo be dealt with according to law. 4.The appellant moved three fresh applications, which are, Application Nos. 590/2000, 2449/2000 and 2450/2000. Application No. 2450/2000 was filed to pay the wages from the sale proceeds of the cargo or alternatively a direction for sale of the ship and pay the wages as a first charge. Respondent No. 1 filed a counter affidavit contesting the applications. The respondents contested the applications stating that the crew of the vessel has not filed any independent suit and an application for the same is not maintainable and since the vessel has vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer and qualify the words "the ship" and not "Employed or engaged as a member of the crew". .... ..... ..... We are in entire agreement with the Ld. Single Judge that the provisions of the Act enables a sea man to resort to such a process and such process need not necessarily be an independent Civil Suit or any other independent or separate proceeding and in appropriate cases, it could be a step in aid in proceedings already pending at the instance of another party". 9.Referring to a judgment in The Bold Buccleugh - (1852) 7 MOD PC 267 cited in Maritime Law by Christopher Hill, the High Court held that as per the legal position in England it appears that Maritime lien can be defeated where the res is transferred to a foreign Government who can plead sovereign immunity. 10.The High Court further held that there is no transfer by the owner of the ship to a foreign Government. It held that since it is a case where the owner of a ship is deprived of the ship completely by way of penalty and the ship has vested by virtue of confiscation order, the State has become the absolute owner. The High Court compared this with the category where a Government claims sovereign immunity a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Foreign Courts widely; (g) That the cargo fetched a huge price of approximately more than Rs. 20 Crores due to the very good condition in which it was maintained which credit goes to the crew of the ship; (h) That the Division Bench failed to appreciate that the crew members were suffering without wages from May, 1999 till the time they were deported by the Consulate. They have suffered a lot of mental and physical agony. Though their entitlement for wages has never been disputed by any of the respondents they have not been given their wages till date due to technicalities and a narrow approach. 15.Per contra, Mr. Ravi P. Mehrotra, learned counsel for the first respondent submitted as follows :- (a) That the investigations were carried out and it has come to the light that the vessel has carried narcotic drugs since traces of opium were detected at various parts of the ship; (b) That as there were no claimant for the cargo, after the process of law, the 11,000 MT steel cargo was confiscated by the Commissioner of Customs and then sold in public auction; (c) That the owners had completely disowned the ship and were untraceable after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the claim for wages cannot be considered as the vessel has become the property of the State in absolute; (l) That at no point of time had the crew or any other agency agreed that the claim for wages can be attached to the ship in case the claim on cargo is foregone. 16.In view of the submissions made, Mr. Mehrotra contended that the appeal has no merits and deserves to be dismissed. 17.Counsel for the Union of India (Customs Department) filed a separate counter affidavit through its Under Secretary (AS) Ministry of Finance, Department of Revenue. Learned counsel submitted that a show-cause notice was issued to the person calling upon them to show-cause as to why the vessel on arrival with Indian waters had not complied with the provisions of the Customs Law in force and as to why the vessel had entered the Indian territorial waters without proper filing of import general manifest required under Section 30 of the Customs Act, 1962. As no reply was received, the cargo was absolutely confiscated for contravening the provisions of Section 30 of the Customs Act, 1962 as unclaimed. It was further submitted that the cargo was sold off by customs through auction and a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (International) Ltd. and Others - (2000) (8) SCC 278 and M.V. Elizabeth and Others v. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-de-Gama, Goa - 1993 Supp (2) SCC 433. One of the distinctive features of admiralty practice is proceedings in rem which are against maritime property i.e. vessel, cargo or freight as the case may be. This rests on the principle that the ship as the matter causing harm, loss or damage to others or to their property. 21.The Merchant Shipping Act, 1958 (hereinafter referred to as 'the MSA') in Sections 138, 139, 140, 141 and 144 constitute a scheme of statutory rights towards wages which can be enforced by proceedings under Section 145. In terms of the provisions of Section 144, the right of the seamen to wages is unfettered and no limitations on the entitlement to and exercise of such entitlement have been enacted in the Act. It, therefore, follows that such a right conferred by the statute cannot be infringed, affected or neglected except by express provisions to the contrary. The provisions of Section 115 of the Customs Act, 1962 cannot be treated as such provisions to the contrary. The right to wages of seamen as wage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by Courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. (underlining is ours) In the words of Chief Justice Marshall [(1812) 11 US (7 Cranch) 114, 143:3 L Ed 287)] : The jurisdiction of courts is a branch of that which is"87. possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself........" [Schooner Exchange (The) v. M'Faddon]. Admiralty jurisdiction is an essential aspect of judicial88. sovereignty which under the Constitution and the laws is exercised by the High Court as a superior court of record administering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property travelling with it through changes of ownership. It is also acknowledged that it detracts from the absolute title of the 'res' owners (see 1. Maritime Liens by D.R. Thomas British Shipping Laws Vol. 14 PP 51-67 2. Law by Cristopher Hill 2nd Edition 1985 PP 107-111 and 3. Principles of Maritime by Susan Hodges and Cristopher Hill 2001) 27.The seamen's right to his wages have been put on a high pedestal. It is said that a seamen had a right to cling to the last plank of the ship in satisfaction of the wages or part of them as could be found in Neptune - 161 ER 81 and also RUTA - (2000) 1 LLR 359. 28.Having regard to the universally recognized status of Maritime liens and, in particular, the position accorded to seamen's wages, and having due regard to the constitutional and statutory protection of such wages there can be no extinction of loss of such lien owing to the act of confiscation under Section 115 read with Section 126 of the Customs Act, 1962. The lien of a Pawnee traceable to Sections 172, 173 and 176 of the Contract Act is capable of satisfaction from property in the hands of the Government obtained even by lawful seizure. In Bank of Bihar v. State of Bih ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]. Obtaining jurisdiction to the res in pursuance of statutory powers should be put on the same footing as acquisition of the title following the transfer of res. 30.Section 141 of the MSA enables the seamen to receive certain amount of wages plus compensation by reason of the wreck, loss or abandonment of the ship among other reasons. Destruction of a neutral ship by a belligerent State has been said to constitute loss [see Sieveright v. Allen - (1906) 2 KB 81] and further where unknown to the crew the vessel is carrying contraband of war, the crew's right to wages does not cease with the capture of the ship. See Austin Friars v. Strack - (1905) 2 KB 315; 1906 2 KB 499] Power to Confiscate : 31.The power to confiscate and the consequent forfeiture of rights or interests are drastic, being penal in nature. Statutes conferring such powers must be read very strictly. There can be no exercise of power under such statutes by way of extension or implication. No expansive meaning can be given therefore to Section 115 of the Customs Act merely from the dictionary meaning the word absolute as has been done by the Division Bench of the High Court. Since the order passed by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medy granted is of the kind which might be conferred by a court of law." Submissions before this Court : 34.The appellants claimed that, the High Court has failed to appreciate the principles laid down in the A.L. Quamar and M.V. Elizabeth case. (notwithstanding the fact that the order of arrest of the ship ceased to be in force by virtue of the withdrawal of the claims for the arrest of the vessel and sale of the vessel and notwithstanding that the suit which was originally suit in rem has now become suit in personam, this Court continues to have the power, authority and jurisdiction to consider the said application on merits and dispose it of. This was the view taken by this Court in the case of Elizabeth). (This Court in the case of M.V. Al Quamar v. Tsavliris Salvage (International) Ltd., where the court noted, that, there are two attributes to maritime lien, (i) right oven a part of property in the res, (ii) a privileged claim upon a ship in respect of services rendered to or injury caused by that property. Maritime lien attaches to the property in the event the cause of action arises and remains attached. Further the court observed that the lien continues even if the ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under the general maritime law as administered in the English Court of Admiralty, a seaman possesses a maritime lien in respect of a claim for wages. However, till the present date this kind of lien has never been expressly incorporated into the merchant shipping legislation [D.R. Thomas, Maritime Liens, Vol: 14, British Shipping Laws, Steven Sons, 1980]. Statutes enlarging the jurisdiction of the court to entertain claims for wages have been construed by the courts as impliedly extending the ambit of the lien [ibid, p:174]. Therefore the jurisdiction of the court and the existence of a maritime lien are coterminous. 36.A seaman's maritime lien for wages arises from the fact of service rendered to the ship and is independent of agreement and of personal liability on the part of the ship owner. Section 16(1) of the Merchant Shipping Act, 1970 provides that, 'A seaman's lien, his remedies for the recovery of his wages....shall not be capable of being renounced by any agreement'. According to English Law, it is customary to regard the following causes of action as conferring a maritime lien, (i) damage resulting from a collision (ii) bottomry (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the vessel is passed the crewmen cannot exercise any lien on the vessel even to get their wages is also wrong. 39.There exists a maritime lien on the vessel of its crew as established by judgments and authorities earlier cited. And also as understood maritime lien is a concept that evolved through the ages by way of customs prevailing in the law of the seas, no legislation specifically provides for maritime lien to the crew on the vessel. And it is very clear in judicial practice that no statutory rule can ever come in the way of the implementation of any customary practice which has the force of law. The requirement for any customary practice to have force of law is its practice for a long time and the absence of any statutory provision expressly prohibiting the implementation of that particular custom in force, the customary practice of the exercise maritime lien by the crew members satisfies both these requirements. Thus Section 115 of the Customs Act which talks about confiscation will not operate to disentitle the crew of the lien that they can exercise on the vessel for the recovery of their wages which is an established practice in the law of the seas. 40.Also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dark mountain: The visiting Alexander bypassed Katzya's gold and silver but wished to see 'your customs, your behaviour, and how you administer justice'. The conqueror then watched King Katzya heard a case between the buyer and the seller of a field in which hidden treasure had been found. Each disclaimed the treasure, not having bargained for it in the sale. After hearing their briefs, the king found that one man had a son and other a daughter. He arranged their betrothal to one another and bestowed the trove on them. Alexander, laughing, was asked how he would have ruled on such a case in his own land. I would have executed both of them and confiscated the treasure". So King Katzya set out a meal all of gold. When Alexander objected that he did not eat gold, the King exclaimed, with an imprecation: "Why then do you love it so?" He then asked whether the sun shone and the rain fell in Alexander's country and whether there were livestock there. On hearing that there were, he exclaimed, again with an imprecation, "Why then it is only by the desert of those cattle that you survive. 44.Judicial Review would therefore have to be the ever sustaining appreciation of the 'deser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh auction and a sum of Rs. 18.75 Crores was realised. The seamen can claim their wages only from and out of the sale proceeds of the vessel. 47.This Court in various judgments beginning from R.C. Cooper's case and Maneka Gandhi's case etc. have laid down that deprivation of rights is subject to judicial review. The State action is restrained by principles of reasonableness, justice and fair play. The principles enshrined in Article 21 are equally applicable to a foreigner as it is to a citizen. The confiscation by the Government of the vessel cannot extinguish the pre-existing rights of the crew men. India has become a signatory to various International Conventions honouring the social, political, civil, economic rights of human beings. The Directive Principles of State Policy has also become fundamental right and justifiable. 48.The Merchant Shipping Act, 1958 has laid down exhaustive provisions for seamen's wages. The Act itself recognizes that recovery of wages shall not be subject to attachment. Section 445 of the Act provides that payment of wages of Seamen can be made by sale of ship. In the Companies Act, under Section 529(a) on overriding effect has been given and it h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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