Adjudication of Maritime Claims in Bangladesh: Issues, Prospects and Challenges

Bangladesh, a country of maritime prospect is largely dependent on the sea trade and connected with the global business community through marine carriers. In course of maritime trade, disputes arise in respect of cargoes which create claims in favour of the affected parties. Any discrepancy in cargoes from its expected value (quality) or quantity forms claims against the carrier (usually the ship owner) in favour of the shipper or the consignee, as the case may be. Seagoing vessels transport cargoes, both bulk and containerised, from the port of loading to the port of destination moving across the ocean. Carrier vessels face perils of the sea for goods, bunkers as well as their own hulls, machineries, and crews on decks due to rough weather, and swelling and surge of sea water. Collisions occur due to the negligence of the crews or others reasons causing huge damage to other vessels or costal infrastructures. Disputes arise out of sale of ships, employment of crews, dock charges and in addition to these; some other associated issues also constitute maritime claims. The remedy of the affected party lies before the admiralty jurisdiction of the court which exercises action in pesonam (against the person) or action in rem (against the property). Action in rem is the especially featured mechanism exercised by the court under the admiralty jurisdiction through the arrest of ships. The proper legal existence of maritime claims and its liability settings enrich the admiralty jurisdiction as to subject matters which give the affected person locas standi[1] to seek the remedy. An effective exercise of ship arrest is also necessary to protect the rights of the claimants.

The maxim ‘ubi jus ibi remedium’ indicates that where there is a right there is a remedy.[2] It is not enough to have the legal rights i.e. the claims in favour of the affected persons, the claimants have the right to get their claims enforced by a proper authority. The maritime claims are generally enforced by the court exercising the admiralty jurisdiction. In Bangladesh, the Admiralty Court Act, 2000 [eḍmirālṭi korṭ āin, 2000, hereafter referred to as ACA][3] provides the categories of maritime claims enforceable by the court under its admiralty jurisdiction. The High Court Division of the Supreme Court of Bangladesh is entrusted to exercise its jurisdiction to settle the maritime claims as the court of admiralty that bears a legacy of legal history evolved over the centuries in this sub-continent.[4] The unique feature of admiralty jurisdiction is to enforce the maritime claims by action in rem whereby the admiralty court exercises its  jurisdiction against the ‘res’ or ships.[5]

For the purpose of creating a unified legal standard in world maritime enforcement, two international conventions relating to the arrest of ships are adopted in 1952 and 1999 respectively.[6] These two conventions provide lists of maritime claims and prescribe some general rules for arrest of ships. Till today Bangladesh has not ratified any of these conventions, but almost all the categories of maritime claims embodied in the 1952 Arrest Convention are included in ACA. The 1999 Arrest Convention has enlarged the extent of maritime claims and it includes environmental damages, wreck removal costs, marine insurance premiums etc. in the list of claims. It also specifies the area and procedure for ship arrest. Before enacting the ACA, the admiralty jurisdiction had been exercised in Bangladesh under three colonial legislations named the Courts of Admiralty Act, 1891, the Admiralty Act, 1861 and the Admiralty Court Act, 1840.[7] Because of having a large maritime area to the southern side of the country, a significant part of the Bay of Bengal, Bangladesh has prospect to be emerged as the maritime hub in the South and South-East Asia. Almost ninety seven per cent of total import and export in Bangladesh is carried out by seaborne transports.[8] As our country successfully resolved the maritime boundary dispute with her two neighbouring countries through the verdict of two international adjudicatory bodies and thereby ascertained the authority over total 118813 square kilometres[9] water area of Bay of Bengal, Bangladesh needs to adopt both legislative and judicial measures to protect the maritime security, smooth seaborne activities, and marine environment. Modern and updated legislations vis-à-vis an effective and functional admiralty court is the sine qua non for exercising sovereignty and ensuring admiralty justice in the maritime sector of the country.

Global commerce significantly depends on the seaborne transport carrying a large quantity of consumer goods and other raw materials that meet the people’s demand throughout the world. Maritime transport is the soul of international trade in Bangladesh. Wide coastal area and long standing heritage of navigation signify the suitability of the country’s sea trade, transport and associated shipping activities.[10] Due to increasing trend of marine based international trading in the world, transportation of goods by maritime vessels and other shipping activities sometimes generate maritime claims. Shipping incidents like collision, explosion etc. and claims relating to cargoes are more common among them. Bangladesh is mostly a cargo interest country.[11] Importers do face shortage of cargoes while unstuffed by the customs authority in the port premise.[12] The admiralty court is the last resort for the claimant to seek compensation against the carrier for the loss or shortage of goods or other faults. Ship-owners, on the other end, expect the protection of their ships from any kind of wrongful arrest to maintain an uninterrupted maritime trading. Maritime legislations tend to maintain a balance between these two ‘conflicting interests’ for smooth functioning of seaborne trade.[13]

Generally, in international trade, while the master of the ship receives the goods from the shipper (seller) or his agent, he issues a document called bill of lading (BoL) that indicates the acceptance of goods in due course. The duty of the carrier is to deliver the goods as stated in the BoL to the consignee or his agent. Any defect in cargoes (except some lawfully acceptable grounds) as to the quality, shortage or the like from the particulars stated in BoL makes the carrier liable and creates the right of consignee or the buyer to claim the compensation before the court of the country having admiralty jurisdiction. Generally, while the claimant sues for the compensation, he may ask the court to arrest the ship as an immediate measure to secure the claim against the carrier. Upon satisfaction of the claimant’s averments with relevant facts and circumstances, if the court thinks fit and proper, it issues writ of arrest against the ship. In such a situation the owner of the ship or bareboat charterer or his agent appears and he either protests the arrest or if declined, deposits the money or submits the bank guaranty as required by the court against the claim to release the ship. It is a special feature of the admiralty jurisdiction to proceed against the ship personifying her as the defendant to achieve practical remedy against the ship in particular claims.[14] The concept of personification of ships in admiralty proceedings also faced challenges in modern practice. The present day concept advocated by the English judges treats the ships as the property of the ship-owners rather than individual entities. This procedural view takes more pragmatic approach considering the action in rem as distinct from action in personam only in respect of arrest of property i.e. the ship. Procedural approach finds the liability of persons behind the property (ship-owners etc.) in any claim, but considers the ship arrest as a judicial device for enforcing maritime claims.[15]

The liability regime in maritime incident like collision is to some extent distinguishable from liability arising from other claims. Generally the fault based liability of the master or ship-owner is considered in the incident of collision, but law imposes strict liability in some cases. In collision between two or more vessels where it is not possible to differentiate the degree of fault of each vessel, the general rule is to make equal liability. But at times the heavily loaded ships may cause damage to light vessels without any disobedience in navigational rules. Damage may occur without any collision between ships, where a loaded ship creates excessive swells to a light ship. The ratio of fault, damage and causation is the important factor to determine liabilities in collision cases. The ship-owner’s duty is to provide a seaworthy ship with all sound hull and machineries and the master of the ship have to show due care and proper skills in operating the ship. The contravention of some navigational rules by the master also arise criminal liabilities, and in such cases the master is solely responsible for criminal offences.[16] The collision of ships is also a matter of concern in Bangladesh. More than thirty collision incidents occurred in the Chittagong Port area and on its outer anchorage from July to November of 2017.[17] Any damage of ship or her cargo and any loss of life or personal injury due to collision or any other reason are under the admiralty jurisdiction of the High Court Division. The affected person may claim compensation in form of action in rem or action in personam (in limited cases) for damage or injury due to collision.[18] The laws relating to collision at sea are embodied in sections 368 to 378 of the Bangladesh Merchant Shipping Ordinance of 1983 (hereinafter referred to as BMSO). Finding inadequacy in existing laws of Bangladesh, the court accepted the applicability of the Maritime Conventions Act of 1911, an enabling enactment of British Parliament which included the provisions of two international conventions of 1910 namely the Convention for the Unification of Certain Rules of Law Relating to Collisions between Vessels and the Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea.[19]

There is lack of laws in respect of issues like marine pollution, marine insurance, maritime priorities in Bangladesh.[20] Such issues of maritime law are necessary to provide an extensive legal setup for the maritime claimants and to enhance the admiralty jurisdiction of the country. However, the National Shipping Policy adopted in 2000 sets one of the objectives is to modernise the “shipping sector controlling rules and regulations up to existing international standard.”[21] Proper legislative measures are necessary to mitigate the demand of legal provisions and to modify the existing rules in accordance with global up-gradation. It is also a matter of investigation to explore how the court while exercising admiralty jurisdiction shows its activism in explaining the laws, customs, and adopting the international legal standards and foreign principles of law so that the claimants’ rights are properly and effectively enforced. It is also necessary to have a balance of justice between the parties in admiralty suits to ensure a healthy seaborne trade practice.

(The Column has been published at Issue 1 of Volume 2 of BiLD Law Magazine)

Md. Abu Hanif
Joint District Judge; &
Research Fellow
IBS, University of Rajshahi
E-mail: anifjewel.ibs@gmail.com

References


[1] The Latin term ‘locus standi’ means a place of standing­­ i.e. a right to appear in the court to bring a legal action, see USLEGAL, accessed May 20, 2018,  https://definitions.uslegal.com/l/ locus-standi/.

[2]A maxim originated from Roman law. Such maxims are considered as the source of legal principles by the courts of law. Principle enshrined in the maxim ‘ubi jus ibi remedium’ was for the first time successfully applied by Lord Holt CJ of the King’s Bench in  Ashby v White (1703) 92 ER 126, a constitutional case of the United Kingdom

[3] It is a recent trend of legislation in Bangladesh being enacted in mother tongue. The original version of the Act appeared in Bangla language having title [eḍmirālṭi korṭ āin, 2000]. Though there is a provision to publish an authentic English text of the Act, the Government yet to do the same. For convenience of the research the Act will be termed in English as The Admiralty Court Act, 2000 [or ACA].

[4] The origin of ‘admiralty jurisdiction’ in Bangladesh traced back to the regime of East India Company while King George III issued a charter in 1774 and established  the Supreme Court of Judicature in Fort William in Bengal under the authority of the Regulating Act,1773.

[5] The Latin term ‘res’ means thing or property. It is the worldwide practice in admiralty jurisdiction that the claimant may sue against the ship itself as opposed to general personal liability concept. The admiralty courts also exercise in rem action against the ships and order to arrest the ships to enforce the maritime claims. 

[6]International Convention Relating to the Arrest of Sea-going Ships, 1952 and International Convention on Arrest of Ships, 1999.

[7] These enactments are mentioned in and repealed by the section 12 of the Admiralty Court Act, 2000 (ACA) [eḍmirālṭi korṭ āin, 2000].

[8] Bangladesh Bureau of Statistics, Statistical Yearbook of Bangladesh, 2017, 37 ed. (Dhaka: Statistics and Informatics Division, Ministry of Planning, 2018), 265.

[9] Ibid., xxi. The verdict of the International Tribunal for Law of the Sea (ITLOS) on maritime boundary dispute between Bangladesh and Myanmar was delivered on March 14, 2012 and the decision on the delimitation dispute between Bangladesh and India was awarded by the Permanent Court of Arbitration (PCA) on July 7, 2014.

[10] M. Khurshed Alam, “OCEAN/BLUE ECONOMY FOR BANGLADESH,” accessed June 8, 2018, http://mofl.portal.gov.bd/sites/default/files/files/mofl.portal.gov.bd/page/d1b6c714_aee6_499f_a473_c0081e81d7dc/Blue%20Economy.pdf.

[11] The total cargos handled in Chittagong Port as imported items was 66464285 MT and it was total 6709759 MT as exported goods in fiscal year 2016-17, accessed June 10, 2018, http://cpa.portal. gov.bd /sites/default/files/files/cpa.portal.gov.bd/page/f9519495_3f5a_4ba0_98dc_5677ec19ed7d/Cargo%20Handling%20Statistics%20Bangla%20(1).pdf.

[12] The Daily Prothom Alo, February 15, 2018, Dhaka, 14.

[13] Stanley Onyebuchi Okoli, “Arrest of Ships: Impact of the Law on Maritime Claimants,” (master’s thesis, Faculty of Law, Lund University, 2010), 7.

[14] Michael Tsimplis, “Procedures for Enforcement,” in Maritime Law, 1st South Asian Edition, ed. Yvonne Baatz (London: Sweet & Maxwell, 2011), 542.

[15] D. C. Jackson, Enforcement of Maritime Claims, 4 ed. (London: Informa Professional), sec.10.8-10.12, EPUB.

[16] Kerry-Ann N. McKoy, “Collisions: a legal analysis” (master’s thesis, World Maritime University, 1999), 17-21.

[17] “Ship collisions at Ctg port raise concerns,The Daily Star, Dhaka, November 13, 2017, accessed May 3, 2018, https://www.thedailystar.net/business/ship-collisions-ctg-port-raise-concerns-1490470.

[18] The Admiralty Court Act, 2000, ss 3-5.

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[19] S. M. Mohiuddin Hasan, Admiralty and Maritime Laws of Bangladesh, 6 ed. (Dhaka: Shams Publications, 2016), 323. Though the Maritime Conventions Act 0f 1911 is a British legislation and the same is not adopted in Bangladesh, the Appellate Division while deciding a matter acknowledged the applicability of the Act.

[20] S. M. Mohiuddin Hasan, “State of maritime laws in Bangladesh,” The Daily Star, law & our rights, issue 251, December 31, 2011, accessed August 21, 2018, http://archive.thedailystar.net/ law/ 2011/12/05/ analysis.htm.

[21] The National Shipping Policy of 2000, sec.1.3, accessed August 23, 2018, https://mos. portal.gov.bd/sites/default/files/files/mos.portal.gov.bd/policies/5c97d480_74d9_47d4_9b25_5c640a1f7b58/National%20Shipping%20Policy%202000.pdf.

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