INDIA Law and Practice Contributed by: Gautam Bhatikar, Deeksha Dev Singh and Isha Patil, Phoenix Legal
the amendment to the 1996 Protocol has been brought in through the Merchant Shipping (Lim - itation of Liability for Maritime Claims) Rules, 2017. The following entities can rely on such limitation- of-liability provisions: • the ship-owner (which includes the owner, charterer, manager and operator of a seago - ing ship); • the salvor; • any person for whose act, neglect or default the ship-owner or salvor (as the case may be) is responsible; and • an insurer of liability for claims to the same extent as the assured themselves. However, it is pertinent to note that Section 352E of the Merchant Shipping Act, 1958 specifically provides that “any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of the State, which is a party to the Convention, is wholly excluded from the provisions of this Part”. 2.4 Procedure and Requirements for Establishing a Limitation Fund Under the Merchant Shipping Act, 1958, the pro - cedure for establishing a limitation fund in India involves filing a petition with the High Court that has admiralty jurisdiction. The petitioner must be a ship-owner or salvor seeking to limit their liability for certain claims arising out of maritime incidents. To establish a limitation fund, the petitioner must deposit a sum of money or provide security, which is calculated based on the tonnage of the vessel or the value of the ship-owner’s interest in the vessel, whichever is lower. The amount of the
limitation fund is determined by the court based on the claims asserted against the petitioner. Any ship-owner or salvor can set a limitation fund under the Merchant Shipping Act, 1958 in India, provided they meet the requirements for doing so. A deposit is required to establish a limitation fund, but the petitioner can provide security in the form of a guarantee from an approved finan - cial institution or a letter of undertaking from the petitioner’s protection and indemnity club. 2.5 Seafarers’ Safety and Owners’ Liability Jurisdictional Overview In India, the Maritime Labour Convention 2006 (MLC) is recognised as the “fourth pillar” of international maritime law and a definitive “bill of rights” for seafarers, playing a pivotal role in safeguarding their fundamental rights and estab - lishing minimum international standards for liv - ing and working conditions. The MLC came into force on 20 August 2013 and was ratified by India on 9 October 2015. To enact the provisions of the MLC, as amended, the Merchant Shipping (Maritime Labour) Rules, 2016 were promulgated in conjunction with Merchant Shipping Notice No 16 of 2016, dated 8 December 2016, and Merchant Shipping Notice No 9 of 2017, dated 16 November 2017. Seafarers’ Rights and Safety The MLC serves as a robust shield for seafarers’ rights and safety. In the context of Indian legis - lation, while there is no specific law addressing compensation for injuries or deaths of seafarers, the Employees Compensation Act, 1923 (ECA) serves as a general legislative framework allow - ing seafarers and their families to claim com - pensation. The ECA explicitly includes “Master,
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