শনিবার , ২২ সেপ্টেম্বর ২০১৮
সদ্যপ্রাপ্ত

The Necessity of Maritime Court in Bangladesh

নভেম্বর ১৭, ২০১৩

Maritime courtShipping is an international strategy that plays an important role in the commercial arena in a country like in Bangladesh. The development of shipping of a country largely depends on its national fleet. The security of national trade and its continued carriage depends on the existence of a capable national merchant marine. The merchant marine of a country is not merely an economic tool and asset of our country. Bangladesh’s increasing dependence on sea-borne trade both in the export and import sectors promises for a solid foundation for its national fleet.

The growth of shipping industry of a country largely depends on her strong and effective statutes. In Bangladesh, maritime laws are divided into following phases:

Ø Laws relating to merchant shipping in Bangladesh:

The Bangladesh Merchant Shipping Ordinance, 1983 and the Bangladesh Flag Vessels (Protection) Ordinance, 1982 are designed to contribute to the expansion of shipping in Bangladesh.

· The Bangladesh Merchant Shipping Ordinance, 1983:

The Bangladesh Merchant Shipping Ordinance, 1983 provides the main regulations defining the conditions of maritime transport business in Bangladesh. The ordinance embodies rules regarding registration of Bangladesh[1]; transfers or mortgages of ships or shares[2]; national character and flag[3]; employment of seamen[4]; safety[5]; collisions[6]; accidents at sea and liability[7]; limitation of liability[8]; navigation[9]; prevention of pollution; investigation and enquiries[10]; wreck and salvage[11]; maritime lien[12]; coasting trade; sailing vessels[13]; penalties and procedure[14] etc. many of these provisions have been adopted from rules formulated by various international conventions.

Moreover, the merchant shipping (amendment) act, 2004 has made certain changes to The Bangladesh Merchant Shipping Ordinance, 1983 by amending some of its clauses. Duration of punishment for illegal escaping from vessels had been increased to 5 year’s term from the previous 2 year’s term and amount of financial penalty has been increased to taka 10 lakh, which was previously taka 10 thousand. It has been made mandatory in the amended law that the guarantee-money amounting taka 5 lakh of the guarantor against the sailor will be forfeited in case of his desertion and thus the money will be compensated to the party who incurred loss due to such bad attempt by the escaped sailor.

· Bangladesh Flag Vessels (Protection) Ordinance, 1982

The United Nations (UN) Convention on a Code of Conduct for liner conferences came into force on the 6th October, 1983. Bangladesh had acceded to the convention on the 24th July, 1975, and in light of it, the Bangladesh Flag Vessels (Protection) Ordinance, 1982 was promulgated. The Bangladesh Flag Vessels (Protection) Ordinance, 1982 was promulgated with a primary object to promote and encourage the growth of the local shipping industry. The object of the ordinance was to allow Bangladesh Shipping Corporation (BSC) get more of the market share of the cargoes moving to and from Bangladesh. The ordinance provides that at least 40% of the sea-borne cargo shall be National Flag Vessels. According to the ordinance, foreign shipping companies are not allowed to load any goods from any Bangladeshi Port if any National Flag Ship is available. Foreign companies can load cargoes under general waiver certificates issued by the DG, Department of Shipping, upon “no objection” from BSC.

Ø Laws relating to Marine Fisheries:

· The Marine Fisheries Ordinance, 1983

Marine fishery plays an important role in pro-employment and foreign exchange earnings. The contribution of the marine fisheries sector to the country’s total fish production is about 23%[15]. The Marine Fisheries Ordinance, 1983 was promulgated to provide for the management, conservation and development of Marine Fisheries in the Bangladesh fisheries waters and to deal with certain matters connected therewith.

Under section 4, the Marine Fisheries Ordinance, 1983 empowers the Government to appoint a Director and other Fisheries Officers for the purpose of implementing the provisions of the ordinance and rules made there under.

The Director is responsible for the management, conservation, supervision and development of Marine Fisheries under section 5 and also for issuing licenses in respect of all marine fishing in the Bangladesh marine fisheries waters under section 8.

Part IV and V deal with Marine Fishing Operations and Foreign Fishing Operation respectively. Part IX deals with powers of authorized officers whereas Part X deals with offences and legal procedure.

Ø Laws relating to Carriage of Goods by Sea:

Carriage of goods by sea is carried out on the basis of a contract of carriage between the consignor and the carrier. A contract for the carriage of goods by sea is called the “Contract of Affreightment.” A Contract of Affreightment may take one of the two forms, namely, it may take the form of a charter-party, or a bill of lading. A number of contracts of carriage of goods by sea are made in the form of bill of lading.

In Bangladesh, carriage of goods by sea is governed by the Bills of Lading Act, 1856;

The Carriage of Goods by Sea Act, 1925; The Merchant Shipping Ordinance, 1983; and the other general statutes such as the Marine Insurance Act, 1906; the Contract Act, 1872; the Evidence Act, 1872; the Penal Code, 1860; the Transfer Of Property Act, 1882; the Code Of Civil Procedure, 1908; the Code Of Criminal Procedure, 1898; and the Companies Act, 1994 as well as the general principles of law such as the law of torts and public and private international law etc. In these connection, reference may also be made to the Ports Act, 1908 and the Port Rule, 1966; concerning the administration of the port and the jurisdiction over ships in port; the Customs Act, 1969; containing various regulatory measures affecting ships, goods and persons in connection with importation or exportation of goods, as well as the provisions governing employment of labour.

The Carriage of Goods by Sea Act, 1925; contains the Hague Rules regulating the respective rights and liabilities of the parties to a contract governed by bill of ladings or similar documents of title for carriage of goods by sea “from any port in Bangladesh to any other port whether in Bangladesh or outside Bangladesh[16]. The Carriage of Goods by Sea Act, 1925 applies only when the contract of Affreightment is evidenced by a bill of lading. In the words of Professor Michael Bridge, a bill of lading is a ‘versatile document recording the receipts of goods which also provides evidence of the contract of carriage and may also serve as a document of title to the goods it represents[17].

A Bill of Lading means and includes ‘a document which evidences a contract of carriage by sea and the taking over or loading of the goods against surrender of the document.” Where the contract of sale is financed by the letter of credit, the Bill of Lading, inter alia, entitles the seller to be reimbursed by the bank.

The Bill of Lading Act, 1856 emphasis the negotiable and other characteristics of a bill of lading. The Bill of Lading Act, 1856 was passed to protect the rights of a consignee and endorsee to a bill of lading.

The Carriers Act, 1865 was passed at a time when the profession of carrying goods or passengers was growing and the carriers has an open opportunity to contract out of liability even for negligence or misconduct with the result that the consignor were left wholly at their mercy. The Carriers Act, 1865 was passed with two fold objects:

Firstly, to enable common carrier to limit their liability for loss of or damage to property delivered to them to be carried.

Secondly, to declare their liability for loss of or damage to such property occasioned by the negligence or criminal acts of themselves, their servants or agents.

Ø Laws relating to Marine Insurance;

Marine Insurance Law is a part of commercial law. Insurance of goods during their transit from the exporting country to the importing country is an important incident in an international sale transaction. It is a common practice for the parties to an international sale contract to arrange for the goods to be insured against loss or damage caused during the voyage. In the event of loss or damage to cargo due to perils of the insurance policy, to recover his losses from the underwriter or insurer.

Ø Laws relating to Collision and Salvage:

The Maritime conventions act, 1911 is an enactment of the British parliament, resulting from the ratification of the collision convention, 1910 (framed for the unification of international maritime law as to the division of loss in collision actions) and the Salvage Convention, 1910 (framed for the purpose of addressing the issue of salvage keeping in line with the practice of all maritime actions).

Though Bangladesh did not ratify the conventions of 1910 yet, but courts of Bangladesh had followed the English enactment.

The High Court Division (HCD) of the Supreme Court of Bangladesh applied the principle of the act giving recognition to the applicability of the act in admiralty jurisdiction[20].

The Appellate Division (AD) of the Supreme Court concurred with the finding of HCD as to the applicability of Marine Conventions Act, 1911[21].

Since then no dispute has been raised as to the applicability of the Marine Conventions Act, 1911 in Bangladesh.

Ø Laws relating to Maritime Boundaries:

· The Territorial Waters and Maritime Zones Act, 1974: It provides for the declaration of the territorial waters and maritime zones.

Ø Laws relating to Maritime Safety:

· The Coast Guard Act, 1994

Under Section 4, there shall be a coast guard department. Moreover, there shall be one director-general to the department and he shall be appointed by the govt.

Section 5 deals with the constitution of the coast guard. It is stated in section 5 that – there shall be constituted an armed force to be called the coast guard.

Section 7 deals with functions of the armed forces.

Ø Laws on Maritime Labour:

· Bangladesh Labour Code, 2006

Section 253 to 263A deal with the laws on Maritime Labour.

Ø Laws relating to Admiralty Court in Bangladesh

· Admiralty Court Act, 2000

· Admiralty Rules, 1912

· The Courts Of Admiralty Act, 1891

· Admiralty Court Act, 1861

· Admiralty Court Act, 1840

Ø Necessity of Maritime Court in Bangladesh:

Though shipping plays an important role in the commercial strategy in Bangladesh, but it is a matter of sorrow that there is no separate court relating to Maritime Law. That means there is no special Maritime court in Bangladesh. There is distinction between Admiralty Court and Ordinary Original Civil Jurisdiction.

His lordship Mr. Justice Ruhul Islam correctly appreciated the legal position when he observed- “Admiralty Jurisdiction is completely different from both Ordinary Original Civil Jurisdiction and Extraordinary Original Civil Jurisdiction of the High Court[22].”

The necessity of Special Maritime Court in Bangladesh is not needless to say. It is very important in order to protect shipping industry in Bangladesh. Basically, because of following reasons, establishment of Special Maritime Court in Bangladesh is important:

§ For the security of National Trade. Because Bangladesh’s increasing dependence on sea-borne trade both in the export and import sectors.

§ To regulate Maritime Transport Business in Bangladesh in case of registration of Bangladeshi ships, transfers or mortgages of ships or shares, collisions, accidents at sea, liability, wreck and salvage, penalties and procedures and so on.

§ To protect the interest of the persons engaged in shipping industry.

§ To increase the GDP Rate in Bangladesh.

§ To realize compensation from foreign country.

§ To encourage the shipping industries in Bangladesh.

It is a matter of happiness that, the Admiralty Court Act, 2000 gives the High Court Division (HCD) an Original Jurisdiction to entertain cases at first instance. Article 101 of the Constitution of the People’s Republic of Bangladesh provides that the HCD shall have such jurisdiction as are conferred on it by the Constitution and by other laws.

Section 3 (1) of the Admiralty Court Act, 2000 specifically lays down that the HCD shall be the court of Admiralty cases under the Act are decided by way of special statutory jurisdiction conferred upon the court by the Act Itself.

Section 8 of the Admiralty Court Act, 2000 permits the hearing and disposal of Admiralty Suits by a Single Bench of the HCD. However, the Chief Justice may constitute a Division Bench Comprising two or more Judges for hearing and disposal of such suits.

Reference:

[1] Chapter 3, Part II

[2] Section 39 and 40

[3] Section 55

[4] Chapter 10

[5] Chapter 21, Part IV

[6] Chapter 30

[7] Chapter 30

[8] Chapter 41, Part XII

[9] Chapter 29

[10] Chapter 34, Part X

[11] Chapter 38 and 39

[12] Chapter 42

[13] Chapter 33

[14] Chapter 43, Part XIII

[15] Farooque, Mohiuddin, Regulatory Regime on Inland Fisheries in Bangladesh: Issues and Remedies, Dhaka: BELA 2007

[16] Section 2 of the Carriage of Goods by Sea Act, 1925

[17] Michael Bridge: The International Sale of Good: Law and Practice, Oxford University Press, (1999), Chapter 13

[18] Eagle Star Insurance Company Ltd. Vs. Rahmania Trading Company [(1976) 18 DLR (AD), 111]

[19] Sadharan Bima Corporation Vs. Bengal Liners Ltd. [16 BLD (AD) 186]

[20] Owners M.L. Madina Vs. Owner Jalamoni (1978) 30 DLR 149

[21] Bangladesh Inland Water Transport Corporation Vs. M/s. Seres Shipping Corporated World Trade Centre (1984) 36 DLR (AD) 82

[22] Saledh Steel Industries Ltd. Vs. PACFIC ABETO and Others [(1983) 35 DLR 188]

Writer:MOHAMMAD RAYHAN UDDIN, Advocate,Judges’ Court, Chittagong, Email: rayhanuddinlaw@gmail.com

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