INDIA Law and Practice Contributed by: Gautam Bhatikar, Deeksha Dev Singh and Isha Patil, Phoenix Legal
6. Enforcement of Law and Jurisdiction and Arbitration Clauses 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading In general, Indian courts will give effect to express governing law clauses in contracts, including bills of lading. The choice must be bona fide and legal, and not against public policy. Under Section 57 of the Indian Evidence Act, 1872, foreign law is a question of fact and would have to be proved by both parties prof - fering evidence, without which the court would presume that foreign law is the same as Indian law. In British India Steam Navigation Co Ltd v Shanmughavilas Cashew Industries (1990 3 SCC 481), the Supreme Court of India rejected the argument of lack of jurisdiction even though Clause 3 of the bill of lading stated that the court at Cochin had no jurisdiction and only English courts had jurisdiction. 6.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading To incorporate an arbitration or dispute resolu - tion clause, the bill of lading will be required to specify that the arbitration or dispute resolution clause is incorporated per the judgment of the Supreme Court in MV Baltic Confidence v The State Trading Corporation of India Ltd (2001) 7 SCC 473. In British India Steam Navigation Co Ltd v Shan - mughavilas Cashew Industries (1990) 3 SCC 481, the Supreme Court of India expressed the opinion that a consignee or an endorsee may be bound by the terms of the charterparty terms incorporated into the bill of lading contract even when the consignee or endorsee is unaware of those terms.
such damage was due to the fault or neglect of the carrier or their servants or agents. It could be stated that the Merchant Shipping Act, 1958 already provides for the liability of owners for personal and property claims, which is lower than the liability under the Athens Con - vention. Furthermore, there was a proposal to incorporate specific provisions into the Merchant Shipping Act, 1958 for placing liability on ship- owners to pay compensation for the death of or injury to passengers up to INR1 lakh, regardless of whether or not the owner is at fault. The Convention on Limitation of Liability for Maritime Claims, 1976 This Convention replaced the International Con - vention relating to the Limitation of Liability of Owners of Sea-Going Ships, 1957, and came into force on 1 December 1986. The provisions of the 1957 Convention have already been incor - porated into the Merchant Shipping Act, 1958. The 1976 Convention mainly increases the limit of liability for the loss of life or damage to prop - erty by almost two to four times the limits pre - scribed by the 1957 Convention. It also has spe - cific provisions for compensation to be given for the death or injury of a passenger and the loss of or damage to passengers’ luggage, equivalent to the provisions of the Athens Convention. Under Section 4(1)(e) of the Admiralty Act, claims for indemnities for injury to a passenger would be recognised as a maritime claim.
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