This was an application on behalf of the MV Kumar seeking dismissal of the action in rem against the vessel on the grounds that: (1) the plaintiff, United India Marine Services, as an unregistered partnership firm, was incompetent to institute a suit to enforce its claim arising out of contract; and (2) the plaintiff's claim was not a maritime claim. The applicant also sought the return of the security furnished, along with interest, and damages of INR 2 million for wrongful arrest.

On the basis that it had delivered supplies and rendered repairs and technical services to the vessel and its sister ships pursuant to purchase orders issued by their registered owners, the plaintiff argued that it had a maritime claim under s 4(1)(l) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017 (the Act), relying on the judgment in Raj Shipping Agencies v Barge Madhwa 2020 SCC OnLine Bom 651 (CMI782).

Held: Application dismissed.

Under s 2(1)(f) of the Act, 'maritime claim' means a claim referred to in s 4 of the Act. Section 4(1)(l) of the Act refers to 'goods, materials, perishable or non-perishable provisions, bunker fuel, equipment (including containers), supplied or services rendered to the vessel for its operation, management, preservation or maintenance including any fee payable or leviable'. Section 5 of the Act provides:

(1) The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that - (a) the person who owned the vessel at the time when the maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is effected; or ...

(2) The High Court may also order arrest of any other vessel for the purpose of providing security against a maritime claim, in lieu of the vessel against which a maritime claim has been made under this Act, subject to the provisions of subsection (1): Provided that no vessel shall be arrested under this sub-section in respect of a maritime claim under clause (a) of sub-section (1) of section 4 ...

On a conjoint reading of the provisions contained in ss 4 and 5 of the Act, it would be difficult to agree with the broad proposition that the measure of arrest of a vessel in rem under s 5 is merely a remedial measure and does not partake of the foundation of a statutory right. Once a claim satisfies the description of a maritime claim, in this case a claim arising out of the supply of essentials or services rendered to the vessel, the person having such a maritime claim is entitled to the rights under the Act, and the fact that such rights arose out of an underlying contractual relationship pales in significance.

Section 69(2) of the Partnership Act 1932 provides:

No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm ...

To deny the protection of the measures provided in the Act on the ground that an unregistered partnership firm is not entitled to institute the suit on account of the bar created under s 69(2) would render the right to arrest the vessel in rem nugatory.

The applicant's submission that although such a person has the remedy to arrest the vessel, it cannot institute a suit, overlooks the fact that an application for arrest of the vessel under R 1066 of the Rules for Regulating the Procedure and Practice in Cases brought before the High Court under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017 can be in a suit instituted in rem. It would thus be a contradiction in terms to argue that an unregistered partnership firm can have the remedy of arrest of the vessel under s 5 of the Act, yet cannot institute a suit in the admiralty jurisdiction. The enforcement of a maritime claim under s 5 of the Act is in exercise of a statutory right created under the Act. The Act does not create only an alternate mode for enforcement of rights.

The enforcement of maritime claims also has its genesis in the common law. The rights under admiralty or maritime law did not emanate from, and were originally not found within, the statutes. In MV Elisabeth v Harwan Investment & Trading Pvt Ltd 1993 Supp (2) SCC 433 (CMI883), the Supreme Court observed that any attempt to confine admiralty or maritime law within the bounds of statute is not only unrealistic but incorrect.

The applicant submitted that the MV Elisabeth case would not govern the situation post enactment of the Act. It was argued that the MV Elisabeth decision proceeded on the basis that there were no modern statutes in India governing maritime law, and therefore principles of the global common law incorporated into the various international Conventions, such as the Arrest Convention 1952, should be deemed to be incorporated into Indian law until appropriate laws were framed in India. Since Parliament thereafter promulgated the Act, which is 'An Act to consolidate the laws relating to admiralty jurisdiction, legal proceedings in connection with vessels, their arrest, detention, sale and other matters connected therewith or incidental thereto', according to the applicant, it is now not open to argue that admiralty or maritime claims are governed by common law.

The Court finds it difficult to agree to this position. Arrest of a vessel in rem for the enforcement of a maritime claim against the vessel or its owner has its genesis in common law. Recognition of this right, and regulating the procedure for enforcement of this right under the Act, may not denude this right of arrest of the vessel in rem of its character as a common law right.

The applicant further submitted that, in any event, the Act cannot be said to have created a liability not existing in common law and given a remedy for its enforcement and, therefore, the right to enforce a maritime claim cannot be termed as a statutory right. This submission again loses sight of the fact that the Act, apart from defining as to what constitutes a maritime claim, confers a right on a person holding a maritime claim to enforce this right by arrest of the vessel for the purpose of providing security against a maritime claim. The Court is not inclined to accede to the applicant's submission that no statutory right is created under the Act.

The plaintiff's pleadings are adequate to sustain a claim on the basis of an alleged maritime claim enforceable under the provisions of the Act. The fact that there is also reference to contractual obligations would, at best, indicate that a part of the cause of action is rooted in contract. However, another part of the cause of action is based on the statutory right enforceable under s 5 of the Act. The plaintiff's suit is thus not barred under s 69(2) of the Partnership Act 1932. Hence, the application is rejected.