Director General Of Shipping's 2022 Order For Certification Of Accommodation Barges Not Applicable To Ships Registered Under Coastal Vessels Act: Bombay HC

The Bombay High Court held recently that the 2022 order of the Director General of Shipping for certification of accommodation barges does not apply to vessels which are not Indian ships registered under the Merchant Shipping Act, of 1858.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla temporarily stayed orders of the Directorate General of Shipping to detain three of the petitioner's non-self-propelled accommodation barges registered under the Coastal Vessels Act, of 1838.

The impugned detention orders dated May 8, 2023, May 22, 2023, and June 3, 2023, were issued due to alleged non-compliance with a general order issued by the Director General of Shipping, Mumbai (DGS) on October 20, 2022. This order laid down norms for the certification of offshore vessels and accommodation barges operating in the Indian Exclusive Economic Zone, imposing additional conditions such as the installation of lifeboats.

“The measures as sought to be imposed on the petitioner as a consequence of the general direction as issued under the impugned order dated 20 October 2022 may be in the larger interest of the vessels and for benefit of the persons deployed thereon, however, when the impugned order is sought to be imposed on the petitioner, it can be imposed only if the law would permit the applicability of the said order to the category of vessels belonging to the petitioner and not otherwise”, the court observed.

The petitioner, Hind Offshore Pvt. Ltd., challenged the detention orders, seeking a declaration that the impugned order dated October 20, 2022, issued under the Merchant Shipping Act, 1958, did not apply to vessels registered under the Coastal Vessels Act, 1838.

The petitioner contended that its vessels, which are non-self-propelled barges used as accommodation barges at offshore sites of ONGC, are registered under the Coasting Vessels Act, of 1838, making the provisions of the 1958 Act inapplicable to them.

Senior Advocate Tulzapurkar for the petitioner, argued that the 1958 Act was not applicable to the petitioner's vessels as they are not registered under it and do not fall under the definition of "Indian ship" as per Section 3(18) of the Act. The petitioner argued that their vessels did not qualify as "Indian ships" under the 1958 Act, as they were not registered at any Indian port when the 1958 Act commenced.

The Union of India defended the impugned order as necessary for public safety, particularly in emergencies such as cyclones and asserted that the petitioner had given assurances of compliance, justifying the detention of vessels for non-compliance.

However, the court prima facie found merit in the petitioner's arguments. It reasoned that the provisions of the 1958 Act did not apply to the petitioner's vessels, as they were not classified as "Indian ships" under the Act. The court noted that the impugned order explicitly referred to provisions applicable only to sea-going ships with mechanical propulsion, not relevant to the petitioner's vessels.

“It appears that even the rule making power as conferred by Section 288 of the 1958 Act applies to the rules to be made prescribing life saving appliances to be carried by every “Indian ship” going to the sea from any port or place in India. Thus, necessarily no rules can be framed under Section 288 in regard to a ship or vessel which is not of the category of an Indian ship as defined under Section 3 (18) of the 1958 Act”, the court added.

Therefore, DGS had no jurisdiction to detain the petitioner's vessels under the impugned order, the court held.

The court further held that the petitioner had made a strong prima facie case for admission of the petition and granted interim reliefs. Pending the hearing and final disposal of the petition, the court stayed the impugned order dated October 20, 2022, and the detention orders. It also stayed the consequential demands raised against the petitioner.

Senior Advocate Dr. Virendra Tulzapurkar along with advocates Amrut Joshi, Yagad Udwadia, Nitin Parkhe and Jacob Kadantot represented the Petitioner.

Advocate YR Mishra represented the Union of India.

Case no. – Writ Petition (L) No. 6075 of 2024

Case Title – Hind Offshore Pvt. Ltd. v. Union of India & Ors.