Can’t Detain Foreign Ship Berthed In Port Which Is Within Jurisdiction Of Another HC: Kerala HC Rejects Fishermen’s Plea [Read Judgment]

‘When a foreign vessel is berthed in a port which is within the jurisdiction of another High Court, it cannot be said that the vessel is within the territorial waters of this High Court.’

The Kerala High Court has held that proceedings for detaining a ship for enforcement of a maritime claim would not be maintainable before the high court when the foreign vessel is berthed in a port which is within the jurisdiction of another high court.

Traditional fishermen had approached the high court after their fishing boat and accessories, including fishing nets, were destroyed by a foreign ship off the coast of Kochi. They had prayed for detaining the ship under subsection (1) of Section 443 of the Merchant Shipping Act, 1958.

In this case, registry had doubted maintainability of the petition (Anthoniyarpicha vs. MV Mayuree Naree) as a Special Jurisdiction Case and had opined that proceedings could be instituted only as an admiralty suit.

The case was provisionally numbered and Advocate Joy Thattil Ittoop, on behalf of the petitioners, contended that a part of the cause of action arises within the jurisdiction of the Kerala High Court and, hence, it has territorial jurisdiction to maintain the plea, though the ship is berthed in port in Odisha.

Advocate Suvin R Menon, Central government counsel, countering this argument contended that the foreign ship sought to be detained, even according to the petitioners, is not within the territorial jurisdiction of the Kerala High Court and, therefore, the jurisdiction of this court under sub-section (1) of Section 443 of the Act cannot be invoked for detaining the ship.

The high court noted that Sub-Section (1) of Section 443 of the Act only provides that the high court may detain a foreign ship which caused damage to the Government or to a citizen of India or to an Indian company by reason of the specific acts mentioned therein, when it is found within Indian jurisdiction and it does not provide which High Court in India should exercise the jurisdiction.

Justice PB Suresh Kumar, referring to Section 443 and the definition of the ‘High court’ given in the Act, observed: “When a foreign vessel is berthed in a port which is within the jurisdiction of another High Court, it cannot be said that the vessel is within the territorial waters of this High Court. In other words, the jurisdiction of this court under sub-section (1) of Section 443 of the Act cannot be invoked by this Court when the vessel is situated within the territorial jurisdiction of another High Court under the said provision as well. If the argument advanced by the petitioners is accepted, High Courts in India will have concurrent jurisdiction to exercise the power under sub section (1) Section 443 of the Act. The scheme of Section 443 does not indicate that exercise of concurrent jurisdiction by different High Courts under Section 443 is contemplated under the statute.”

The court also observed that the provision contained in sub-section (1) of Section 443 of the Act being a special jurisdiction conferred on the high court, the proceedings under sub-section (1) of Section 443 of the Act would fall under the nomenclature 'Special Jurisdiction Case'.