Legislation UpdatesRules & Regulations

The Ministry of Commerce and Industry has issued the Static and Mobile Pressure Vessels (Unfired) (Amendment) Rules, 2021 on August 31, 2021. These Rules amend the Static and Mobile Pressure Vessels (Unfired) Rules, 2016 in the following manner:

  • New definitions of the following have been inserted:
    1. “Competent Person” would mean a person recognised by the Chief Controller, for carrying out tests, examinations, certification for installations and transport vehicles as stipulated in these rules provided the person possess the qualifications and experience and other requirements as set out in Appendix IIA to these rules and the recognition is granted as per procedure laid down in Rule 12. The Chief Controller has the power to relax the requirements of qualifications in respect of a competent person if such person is exceptionally experienced and knowledgeable.
    2. “ISO Tank Container”, means as a tank container which includes two basic elements, the vessel and the framework, suitable for the carriage of compressed gas for conveyance by road, rail and sea, including interchange between these forms of transport and complies with requirements of ISO 1496.
    3. “Third Party Inspection Agency”, defined as a professional organisation recognised by Chief Controller to carry out inspection, certifications, testing including safety audit of major accident hazards premises as defined under the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.
  • A new sub rule has been inserted under Rule 47(7) which states that the district authority will grant no objection certificate or convey his refusal for granting no objection certificate with reasons in writing to the applicants within two months.
  • Rule 61 has been substituted and states that when a licence granted under these rules is lost or accidentally destroyed, system generated copy may be downloaded by the licensee from online portal of Petroleum and Explosive Safety Organization.


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: R.I. Chagla, J., while addressing a matter held that,

“Cause of action in rem does not merge with the Order / Judgment in personam given in respect of a cause of action in personam arising out of the same facts.”

Senior Advocate, Prashant Pratap stated that there is no Caveat against the arrest of the defendant-Vessel. Varsha Gawande, Court Associate upon checking the caveat against arrest Register stated that there is noCaveat against the arrest of Defendant Vessel.

Background

Claim in the Suit is for a Decree against the Defendant Vessel and for the arrest, sequestration, condemnation and sale of the Defendant Vessel, for securing and / or satisfying the Plaintiff’s claim of the principal amount of USD 1,120,914 and USD 25,000 for cost of litigation in India aggregating USD 1,145,914 plus poundage with interest at the rate of 2% per month from the date of the Suit till payment and / or realization as per the Particulars of Claim.

Plaintiff has not been paid in respect of equipment supplied and services rendered, which were necessary for the operation of the Defendant Vessel.

Thus, to recover the above-stated unpaid amounts, present suit was filed and Judge’s Order had been taken out for arrest of Defendant Vessel.

Urgent relief which had been sought is for the arrest of the Defendant Vessel as there was an apprehension as stated in the Plaint that if the Defendant vessel was permitted to sail, Plaintiff would have no legal recourse whatsoever to recover the amounts due to it and eventually these proceedings will be rendered infructuous.

In Court’s opinion, case for arrest of defendant-vessel was made out.  Dues of the Plaintiff for providing equipment and services to the Defendant vessel is evidenced from the Letter of Award read with Sub Contract and invoices annexed.

Thus, Claim would fall within the meaning of a maritime claim under Section 4(1)(I) of the Admiralty (Jurisdiction of Settlement of Maritime Claims) Act, 2017.

Plaintiff fled the present suit seeking attachment of the Defendant vessel, which is currently within jurisdiction of this Court.

Further it was submitted that the proceedings before the Courts in Abu Dhabi are in personam and the present Suit is in rem against the Defendant Vessel.

Hence for the above, Bench stated that,

“proceedings before the Courts in Abu Dhabi are in personam and cannot come in the way of the present Suit, which is an action in rem and that the Plaintiff is entitled to commence an action in rem, whilst the action in personam is still pending and has not proceeded to a final Judgment.”

Balance of convenience lies with plaintiff to whom, almost irreversible prejudice would be caused if reliefs were to be denied.

Therefore, Court directed the Sheriff of Mumbai to effect the arrest/seizure or detention of defendant vessel along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia, plant and machinery at present at anchorage at the Port of Mumbai or wherever she has within the territorial waters of India until the satisfaction of the Plaintiff’s claim.

Further the Bench stated that,

after service of this Order of Arrest, if the arrested Vessel is not released by the furnishing security or bail amount within 6 weeks of service, or an application for vacating the order of arrest is not fled, or the vessel is found abandoned by the person-in-charge of the Vessel or owner, or is found unmanned, then, in such an event, on an application being made by the Plaintiff, the office of the Sheriff of Mumbai shall present a Sheriff’s report for auctioning the Vessel within a period of fourteen days from the date of receiving communication from the Plaintiff’s Advocate or from the date of knowledge of abandonment of Vessel.

[Fugro Survey (Middle East) Ltd. v. DLB 1600 (IMO No. 9681651), DHOC NO. LD-VC-53-2020, decided on 02-05-2020]

Case BriefsInternational Courts

International Tribunal for the Law of the Sea: In the battle between Panama and Italy concerning Panama’s claim for compensation regarding loss of it’s Marine Vessel “Norstar”, Italy was found to have committed a wrongful act in breach of Article 87 Para 1 of the United Nations Convention on the Law of the Sea. The Judgment was given by a bench of Jin-Hyun Paik, President; and Ndiaye, Jesus, Cot, Lucky, Pawlak, Yanai, Kateka, Hoffman, Gao, Bouguetaia, Kelly, Kulyk, Gomez-Robledo, Heidar, Cabello, Chadha, Kittichaisaree, Kolodkin, Lijnzaad, JJ., and Treves and Eiriksson, Ad-hoc JJ.

Factual background

Marine Vessel “Norstar”, an oil tanker flying the flag of Panama, wasowned by Inter Marine & Co. AS, a Norwegian-registered company. From 1994 to 1998, M/V Norstar was engaged in supplying gasoil to mega yachts in an area described by Panama as — “international waters beyond the Territorial Sea of Italy. France and Spain”. The same area was described by Italy as — “off the coasts of the France, Italy and Spain”. The Italian-registered company. Rossmare International SAS, acted as “bunkering brokers” therefor.

In 1997, the Italian fiscal police initiated an investigation into Rossmare International and the activities of Norstar, which revealed that Norstar was involved in the business of selling the fuel purchased in Italy in the exemption of tax duties to a clientele of Italian and other EU leisure boats in international waters off the coasts of the Italian city of Sanremo. On 11-08-1998, the Public Prosecutor of the Coast of Savona, Italy issued a Decree of Seizure against Norstar. Following the request for assistance, Spanish authorities in Palma de Mallorca seized Norstar on 25-9-1998. Criminal proceedings were also instituted against eight individuals including the President and Managing Director of Inter Marine & Co., the captain of Norstar and the owner of Rossmare International.

By a Judgment dated 14-3-2003, the Court of Savona acquitted all the persons and also ordered the revocation of Norstar’s seizure and it’s release. The ship-owners were called upon to take possession of Norstar by that was not done. A document withdrawing seizure and custody of Norstar was issued by the authorities, which Panama states, was never informed to the ship-owners. Ultimately, in 2015, Norstar was publicly auctioned and was purchased by a company dedicated to waste management, to convert Norstar into scrap.

Upshot of submissions on behalf of Panama

(i) By acting in the matter as aforesaid, Italy prevented Panama’s ability to navigate the high seas and conduct legitimate commercial activity. By filing charges against persons having interest in the Panamanian vessel, Italy violated Article 87 of the United Nations Convention on the Law of the Sea.

(ii)Italy acted in a manner which constitutes an abuse of right under Article 300.

(iii) Claim of compensation amounting to over USD 27 millions plus interest and the legal costs derived from the case.

Upshot of submissions on behalf of Italy

(i)All of Panama’s claims should be dismissed, either because of lack of Tribunal’s jurisdiction or because of non-admissibility, or on merits.

(ii)Claim of legal costs derived from the case.

Judgment of the Tribunal

(a) Whether the Decree of Seizure and arrest of M/V Norstar constitute a violation of Article 87 (freedom of the high seas) of the Convention?

Considered: If the Decree and its execution concern only alleged crimes committed in the territory of Italy. Article 87 is not applicable. However, if they concern activities conducted by Norstar on the high seas, as maintained by Panama, Article 87 may be applicable.

Held: Decree of Seizure indicate that it concerns not only alleged crimes committed in the territory of Italy but also bunkering activities conducted by Norstar on the high seas. Article 87 of the Convention proclaims that the high seas are open to all States. It also proclaims the freedom of the high seas and provides for the obligation of due regard in its exercise. Bunkering of leisure boats carried out by Norstar on the high sea falls within the freedom of navigation under Article 87. Italy, through the decree of Seizure Norstar, the request for its execution, and the arrest and detention of the vessel, breached Article 87 Para 1 of the Convention.

(b) Panama’s claims concerning Article 300 (good faith and abuse of rights) of the Convention.

Considered: For a breach of Article 300, Panama not only has to prove that Article 87 has been violated but that it has been violated in breach of good of faith, as bad faith cannot be presumed and has to be established.

Held: After discussing the timing of the arrest of Norstar, the location of arrest, execution of the Decree of Seizure and contradictory reasons to justify it, lack of communication, withholding of information, duration of detention and maintenance of Norstar, the Tribunal found that Panama could not establish the link between its claim concerning Article 300 and the breach of Article 87. Hence, concluded, Italy did not violate Article 300.

(c) Repatriation

Considered: Italy, as the State responsible for an internationally wrongful act, is under an obligation to compensate for damage caused by its breach of Article 87 Para 1 of the Convention.

Held: Owing to the loss of Norstar, restitution in kind was materially impossible in the present case. Panama was entitled to compensation for damage suffered by it as well as for damage or other loss suffered by Norstar, including all persons involved or interested in its operation. After discussing the causal link between the damage and the wrongful act of Italy, interruption of the causal link, duty to mitigate damage, it was concluded that the amount of USD 285,000 shall be compensated to Panama for the loss of M/V Norstar, along with the interest at the rate of 2.7182% compounded annually and payable from 25-9-1998 until the date of the present Judgment. [Panama v. Italy (M/V Norstar Case), 2019 SCC OnLine ITLOS 1, decided on 10-04-2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Ashis Kumar Chakraborty, decided an admiralty suit wherein it directed the arrest of defendant vessel on finding that prima facie case was made out in favour of the petitioner.

The suit was filed under Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. The petitioner’s claim was that they had a maritime claim of over USD 4 mn against the defendant vessel, which was currently lying at the port of Budge Budge. The claim was put forth on account of losses caused as a result of deterioration of cargo; losses caused due to delay in delivery of cargo, and losses suffered due to a decrease in the price of cargo resulting from the delayed delivery. According to the petitioner, its claim constituted a maritime claim under Section 4 of Admiralty Act which was enforced on April 1, 2018.

On considering the facts of the case, the Court found that petitioner had made out a prima facie case and balance of convenience also favoured the petitioner for obtaining an ex-parte order of arrest of the defendant vessel, which was likely to leave the Kolkata Port. Accordingly, an ad interim order of a one day arrest was passed against the defendant’s vessel. However, it was clarified that if the owner or other interested party deposit the claim amount as stated by the petitioner; the order of arrest shall stand automatically vacated. The matter was directed to be further placed on 29-06-2018. The matter being brought before the Court on 29-06-2018, the ad interim arrest order was extended till 04-07-2018, as none appeared on behalf of the defendant to oppose the application. The matter was directed to be listed again on 04-07-2018. [JVL Agro Industries Ltd. v. MT Prime Sun, 2018 SCC OnLine Cal 4030, order dated 28-6-2018 and 2018 SCC OnLine Cal 4128, order dated 29-06-2018]