Sunday, October 1, 2017

MY VOYAGE WITH INDIAN GRACE

                      (V.M. Syam Kumar, Advocate, High Court of Kerala) 
                                    (For the NUALS students Magazine) 
Every branch of law has its own share of land mark judgments. They are important mile stones in the evolution of law. Teachers teach them with emphasis and students study them earnestly. The study of law of tort is thus incomplete without reading Donogue V. Stevenson. Similarly, Constitutional law cannot be taught excluding Marbury v. Madison. Students of Contract law cannot ignore Carllil v. Carbolic Smoke Ball Co. and Company law demands deep acquaintance with Salomon v. A. Salomon & Co. They are cases which are to be chewed, eaten and digested at the law school. Maritime law too has its own fair share of land marks to offer. The House of Lords decision in MV Indian Grace is one among them.
Whatever cult status these legal land marks may have had at the law school, they are soon forgotten when we are out of the law school. The name of the case may still ring a bell, but the specifics may no longer be retained. Practice as a lawyer throws up other important legal norms of contemporary relevance to be remembered and the earlier land marks gradually fade from memory. They have only ‘academic relevance’ now. Further as most of these land marks are antiques from by gone times, they are seldom cited as authority of value since much water might have flown thereafter.  At the best, a passing reference may be made to them in a case of comparable facts or legal issues. That too only before a so called ‘academically inclined judge’, whose creed is fast vanishing.
Never in our wildest dreams do we expect to be part of the said land mark judgments or to get an opportunity to argue them out afresh. Who would expect to get to argue Donoghue V. Stevenson in the court room all over again as a lawyer for one of the parties to the dispute. We presume, and rightly so that the ginger beer consumed by Mrs. Donoghue would have long been digested with or without the snail and the smoke balls that Mrs Louisa Elizabeth Carlill had purchased to cure her aliment of flu would not survive beyond the date of the judgment in Carlill v. Carbolic Smoke Ball Co.
Similarly, while at law school I had like all my class mates expected that MV Indian Grace would have completed her voyage long back and all legal issues involving her cargo of shells and cartridges would have been laid to rest with the House of Lords decision. We presumed that the shells and cartridges carried on board MV Indian Grace for use in the Bofors howitzer guns acquired by Indian armed forces would all have been expended on our enemies at the borders.  Dr. A.M. Varkey our professor at Law school had made each of us read through the MV Indian Grace decision over and over again to impress upon the nuances of admiralty jurisdiction and the vexing issues concerning in rem and in personam actions involved therein. Like the rest, I expected MV Indian Grace to be relevant only for what is contained in the House of Lords decision. I was utterly wrong in presuming so.
By some strange twist of fate, after enrolling as a lawyer I had to be party to the  final legal voyage of MV Indian Grace and was called upon to defend her based on those very same issues and facts about her and her cargo which I had learned by heart at the law school.  
It all started one day with a dusty and shabby case bundle which I saw resting on my table upon my return from the court. I had just shifted my practice to Kochi and had joined the law firm Southern Law Chambers. I had had a prior stint as a junior to the legendary maritime lawyer S. Venkiteswaran in the Admiralty Court of Bombay. After my return I had just started attending the firm’s work and the bundle had been placed on my table at the instructions of the Senior Partner. It carried a note that I shall study the file and be prepared to argue the case as and when it comes up for hearing. It was clear that the green horn from Bombay with a Masters degree in Maritime law and bearing the tag of being the junior to the best maritime lawyer in India was being put to test. I carried the file home for study and slept over. Early morning next day, I proceeded to open it up and the contents revealed a suit filed by Government of India to recover some amounts from a company by the name M/s. India Steam Ship Company purportedly towards damages for the alleged short landing of some military equipment. The suit had been decreed and the defendant shipping company had come up in appeal before the High Court of Kerala challenging the judgment and decree of the Subordinate Judge, Cochin. The plaint disclosed the name of the vessel in which the cargo was carried and owned by the defendant M/s. India Steam Ship Company as MV Indian Grace.
The initial feeling that possessed me on reading the name MV Indian Grace was more that of a cheeky little surprise. What kind of coincidence could it be that there is another vessel bearing the same name as the legendary Indian Grace. I proceeded find out by reading through the dusty and worn out bunch of documents in the bundle. There was nothing in them connecting it to the House of Lords decision in the classic English case of MV Indian Grace. It spoke nothing about action in rem or action in personam and it related only to a simple suit for damages filed in the Subordinate judge’s court of Cochin.  So this could never possibly be the same ship MV Indian Grace about which every student of maritime law across the world is taught.
Later that day, I consulted my colleagues at the firm and asked them about the dirty bundle. All that they knew about it was that it is an old file that had been lying there since years and that the every time the matter came up for hearing, it was being adjourned by the Government Pleader. None of them knew about MV Indian Grace and the strange similarity that the subject vessel in the file bore to the land mark decision.  
As I had by then forgotten the specifics of the House of Lords judgment in MV Indian Grace, I decided to consult Christopher Hill the acclaimed author of “Maritime Law”. What I read left me startled. This is what he had to say on MV Indian Grace:
 “A case on the point is the Indian Grace (1998)1 Lloyd’s Rep. 1 HL. The plaintiff cargo owners brought proceedings against the owners in the Court of Cochin and then brought an action in rem in England. Subsequently judgment was delivered in Cochin. In due course owners submitted to the jurisdiction of the Admiralty Court. The plaintiffs threatened to arrest the vessel and security was provided. The issue was whether the England action in rem was ‘between the same parties or then privies’ within the meaning of sec. 34 as the action in which the plaintiffs obtained judgment in Cochin. When English action in rem was launched no judgment in personam in Cochin had yet been obtained; .....The English action was struck off. The case has been criticised by leading authors.” 
So the bundle in my hand was the appeal from the judgment of the Subordinate Judge’s court Cochin, which had been relied on by the House of Lords to strike off the English action. Issues in MV Indian Grace were thus still alive and kicking. The thrill that I experienced cannot be described in words. Here I had that once in a life time opportunity of pursuing further a case of classic genre. I set to task at once.
I rushed to the only place in the entire State which then had the Lloyd’s Law Reports, the most authoritative law reports on shipping cases from across the common law world, viz., the library of old High Court of Kerala at the Ram Mohan Palace. I knew from my daily visits, the exact place where the Lloyd’s Law Reports were stacked. No one came to that part of the library and the Lloyd’s Law Reports starting from 1918 to date remained neatly stacked in undisturbed slumber since ages. The book rack had by its side a window and one could stack books on its side, sit next to it and read. There was no electric fan over head but the gentle breeze that comes in once in a while through the window made reading there a pleasurable experience. For weeks, I spent all my afternoons perched on that window reading through the reports, ofcourse starting with the House Lords decision in Indian Grace.
The appeal to be argued before the High Court of Kerala though arising out of same facts was different from the legal issues considered by the House of Lords. Factual aspects as brought out during trial at Cochin assumed more relevance in the appeal. Comparing and confirming the factual observations in the judgment of the House Lords with the documents available in my bundle became by favourite enjoyment. The fire on board and the valiant efforts by the Master to put off the fire risking his life were all revealed from the documents. That the fire was not due to the actual fault or privity of the carrier and that the carrier was entitled to rely on the exception in the bill of lading was very evident.
The decision of the House Lords in MV Indian Grace had deeply affected the features of the in rem action till then exercised by English Courts. It was so important a land mark that, authors identified the different phases of legal growth by terming them as period before MV Indian Grace and after MV Indian Grace. Higher courts across the Common law world took note and relied on the decision in MV Indian Grace. Acknowledged experts on Maritime Law like A.M. Sheppard opined in their treatises that the decision was capable of drastically affecting some features of the action in rem followed in England till then. Since the House of Lords had relied on the Judgment of the Subordinate Judges Court Cochin in striking off the English action, the correctness of the said Judgment of the Sub court to be considered by the Kerala High Court in the appeal assumed relevance.
To my excitement the appeal was finally posted for consideration before a division Bench of the High Court of Kerala. After a fair share of adjournments from the part of the Government, the matter was taken up for final hearing and disposal. The senior presiding Judge being a former Civil Lawyer of standing and repute picked up the relevant facts deftly. The appeal was heard for days together. After noons were specifically set apart for exclusive hearing of the appeal. Carriers liability and intricacies of the term “actual fault and privity of the carrier” were considered by the Judges in detail. Scores of reports on the point from Lloyds Law Reports were placed before the bench by both sides. The response from the Bench was encouraging. It appeared that the Bench was convinced about the protections that the carrier and the vessel are entitled to under law. An important Judgment as a sequel to that of the House of Lords was in the immediate offing.
But before the Judgment could be rendered, to my dismay, the appeal was transferred to another Division Bench. We were back to square one. The presiding Judge here was a seasoned lawyer well aware of commercial legal practise. The Bench echoed the views of the earlier bench. Hearing went on for days. It would start off with a quip by the Judge, “Lets sail with Indian Grace.” Both sides argued in detail. Senior lawyer in the rank of Assistant Solicitor General of India appeared and argued for the Government. The Judge gave a peek of his mind by opining that the precedents and facts called for interference with the judgment of the sub-court. After days of lengthy hearing the new Division Bench proceeded to reserve the matter of dictation. We eagerly awaited a judgment capable of reporting across the maritime world from Kerala High Court, one that would be taken note of by English Lawyers and maritime experts. 
But MV Indian Grace was not destined to have a smooth legal journey. Before the date on which the judgment was to be delivered, the case was posted before the Bench by a process called ‘to be spoken to’. It was submitted on behalf of the Government of India that an amendment is proposed to be moved to hike the claim amount which at present was only for the short landed cargo. The Attorney General of India had in view of the failure of the English action, apparently suggested claiming a constructive total loss of the entire cargo and thus to enhance the claim amount from few lakhs to crores of Rupees. The rendering of judgment was thus sought to be adjourned to facilitate the filing of the amendment petition and the same was allowed. I had no reason to feel alarmed as the earlier two division Benches had been convinced of the case and was eager to render a detailed judgment touching upon all aspects of the case.
Within a week the appeal came up before another division bench.  The suggested amendment had not yet been carried and instead of seeking time for pursuing the same, the Government pressed for urgent hearing before the new bench. The hearing of MV Indian Grace thus commenced before the third division bench. Suffice to say that the Bench wound up the hearing within twenty five minutes and proceeded to deliver judgment dismissing the appeal.
Winning the appeal though was a prime objective was not the sole objective.  All through the hearing the single minded and earnest desire was that the judgment from the High Court of Kerala based on the detailed arguments placed by both sides touching on importance question of maritime law and carriage of goods by sea would lead to a judgment that will be a befitting sequel to the decision of the House of Lords in MV Indian Grace. The judgment that was finally rendered ran to less than four pages and carried a sentence to the effect that though numerous foreign decisions were placed before the Bench the same are not felt relevant to be discussed. Thus ended the long journey of MV Indian Grace.
I returned to office carrying the bundle which had now become huge with numerous copies of decisions from Lloyds reports.  I was visited by my senior partner with a comforting smile. He shared with me the wisest advice which I treasure all through the rest of my career. First one was “Never identify personally with the subject matter of your case however interesting it may be.” This was followed by a very practical advise which went like this. “When a case that had been heard at length by a Bench and is expected to be decided in your favour is sought to be adjourned by the opposite side, pray to the court that the same may be noted on file as PART HEARD.” This would have ensured that the matter would again come up only before the same Bench!
I realised that my theoretical knowledge of maritime law and my rummaging through volumes of Lloyds Law reports are no substitute to practical lawyering skills which can be acquired only through years of patient dedicated practise.
 Let me leave you with a sequel to this story. Around ten years after the above experience, at a private function I ran into the same Judge who had heard the MV Indian Grace appeal on its second round. He had since retired and to my surprise very well remembered the quip of sailing with Indian Grace. He told me that he had already dictated a detailed Judgment allowing the appeal filed by MV Indian Grace and same was not typed out and issued since the matter got adjourned.
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Sunday, April 9, 2017

Jurisdiction clause in the bill of lading has primacy: Court uphold Carriers preliminary defense.



(V.M. Syam Kumar LL.M., Advocate, Kochi)
The parties are bound by the terms of the bill of lading and also the forum which they have chosen for entertaining any case in connection with the dispute relating to the transaction between them. Holding thus the Subordinate Judge, Kochi has vide Order dtd. 24.01.2017 directed return of the plaint to the plaintiff for presentation before proper court having jurisdiction. The Learned Sub- Judge had been following the judgment of the Hon’ble Supreme Court of India reported in 1990 (3) SCC 481 and AIR 2003 SC 1177.
Plaint was filed before the Subordinate Judge, Kochi by a purported owner of the goods seeking recovery of certain amounts from the carrier for alleged breach of contract of carriage evidenced by a Bill of lading issued at Kochi. The port of loading was Kochi, India and the port of discharge was Valencia.
Since the defendant carrier in its written statement raised the preliminary objection of jurisdiction, the learned sub-judge proceeded to consider the said question at the threshold before proceeding to trial.
The relevant clause (Clause 26) in the Bill of lading pertaining to jurisdiction read as follows:
Whenever clause 6.2(d) and /or whenever USCOGSA applies whether by virtue of Carriage of Goods to and from the United States of America or otherwise, that stage of the Carriage is to be governed by United States law and the United States Federal Court of the Southern District of New York is to have the exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country.
The Hon’ble Supreme Court has unequivocally laid down the law with respect to the transfer of rights under a bill of lading by holding in British India Steam Navigation Co. Ltd. V. Shanmughavilas Cashew Industries (1990) 3 SCC 481 as follows: “A bill of lading is intended to provide for the rights and liabilities of the parties arising out of the contract of affreightment. If the consignee claims the goods under a bill of lading he is bound by its terms. The bill of lading is the symbol of goods and the right to possess those passes to the transferee of the bill of lading. In other words, its transfer is symbolic of the transfer of the goods themselves and until the goods have been delivered, the delivery of the duly endorsed bill of lading operates as between the transferor or transferee, and all who claim through them as a physical delivery of the goods would do. The bill of lading is a negotiable instrument in the sense of carrying with it the right to demand and have possession of the goods described in it. It also carries with it the rights and liabilities under the contract where the property in the goods is also transferred.”
The question of jurisdiction was squarely covered in favour of these defendants by the dictum laid down by the Hon’ble Supreme Court in British India Steam Navigation Co. Ltd. V. Shanmughavilas Cashew Industries (1990) 3 SCC 481. The said case also has a jurisdiction clause in a bill of lading which is similar to the case at hand. It is pertinent to point out that the said Supreme Court decision arose out of a suit for damages based on a bill of lading filed before the Hon’ble Subordinate Judge’s Court, Cochin.
The Hon’ble Supreme Court after detailed consideration of the matter has laid down the law regarding jurisdiction in a suit based on bill of lading as follows: “The jurisdiction of the Court in actions in personam may be decided upon by the parties themselves based on various connecting factors. The parties to a contract in international trade or commerce may agree in advance on the forum which is to have jurisdiction to determine disputes which may arise between them. The express choice of law made by the parties obviates the need for interpretation. The chosen court may be a court in the country of one or both the parties, or it may be a neutral forum. The jurisdiction clause may provide for a submission to the courts of a particular country, or to a court identified by a formula in a printed standard form such as a bill of lading referring disputes to the carrier’ principal place of business.”
The Hon’ble Supreme Court further held as follows: “Clause 3 of the Bill of lading also contains the selection of law made by the parties. The contract is governed by English law and disputes are to be determined according to English law. Is the selection of law binding? In Cheshire and North’s Private International Law (11 th Edition, page 495) while discussing about the interpretation of contracts the authors say: “When the stage has been reached where an obligation, formally and essentially valid and binding on the parties of full capacity, has been created, then in the further matters that may require the intervention of the court, there I, speaking generally, no reason in principle why the parties should not be free to select the governing law.” The express choice of law made by the parties obviates need for interpretation.
In the absence of express choice the question of the proper law of contract would arise. The parties to a contract should be bound by the jurisdiction clause to which they have agreed unless there is some strong reason to the contrary.
The Hon’ble Supreme Court in Modi Entertainment Network & Another V. WSG Criket Pvt. Ltd. AIR 2003 SC 1177 held that
“But then the jurisdiction clause indicates that the intention of the parties is to have the disputes resolved in accordance with the principles of English law by English Court. Unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidenced by their contract must be given effect to.”
The recent Order rendered by the learned Subordinate Judge Smt. A.S. Mallika, thus abides by the well settled law as laid down by the Hon’ble Supreme Court in various decisions and is an important mile stone in the adjudication of carriage of goods by sea cases in Kochi. (Read the full text of the Order at https://www.scribd.com/document/344570693/Os-129-Kochi-Ia-Order-Maersk1)
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Sunday, October 16, 2016



Maintainability of civil suit against Steamer Agent: Plaint returned for non-compliance of sec. 20 CPC.

(V.M. Syam Kumar, Advocate, High Court of Kerala)

Mere issuance of insurance policy at a particular place does not confer jurisdiction on the civil court at that place to entertain a suit against the steamer agent when neither the port of loading nor the port of discharge or the place of delivery are within the jurisdictional limits of the said court. The requirements under sec. 20 of the Code of Civil Procedure, 1908 have to be satisfied before such a suit can be entertained. 
A civil Suit filed against the steamer agent by the insurer & the shipper at the latter’s place of business was recently rejected by the Civil Court pointing out that noncompliance of sec. 20 CPC is fatal.
It was contended by the steamer agent that the Contract of affreightment as evidenced by the terms and conditions of the bills of lading was entered in to in Mtwara and the contract was to be completed in Tuticorin. The defendant had no office and does not function from within the jurisdictional limits of the Munsiff’s Court, Kollam. No part of the cause of action has arisen within the jurisdictional limits of the Munsiff’s Court, Kollam.. Thus neither the contract of affreightment was entered in to between the parties within the jurisdiction of the Munsiff’s Court, Kollam nor was any part of the contract performed or to be performed within the said jurisdiction. Hence only the Courts at Mtwara or Tuticorin have jurisdiction to entertain any action pertaining to the relevant the Contract of affreightment. In the circumstances the above suit was liable to be dismissed; or in the alternative the plaint is to be returned for filing before the appropriate forum. Further in view of the specific provision contained in the Contract of affreightment as evidenced by the terms and conditions of the bills of lading, issued by the Carrier, the Munsiff Court, Kollam has no jurisdiction to try the matter, that being a condition agreed upon between the parties to the contract of affreightment. All persons claiming under the respective parties to the contract of affreightment are bound by all the terms and conditions contained in the contract.
The learned Judge accepted the contentions put forth by the steamer agent and held as follows:
“Merely because the office of the plaintiff is situated within the jurisdictional limits of this court it cannot be contended that this court has jurisdiction to entertain the suit especially where the plaintiff has no case that any part of the transaction took place in the office of the plaintiffs. As pointed out by the learned counsel for the defendant, the plaintiff has no case that the contract was executed within the jurisdiction of this court or that the contract was for transit from or to a place within the jurisdiction of this court. On the other hand admittedly, the contract was for carriage of goods from Port Mtwara Tanzania to Tuticorin, Tamil Nadu and admittedly the office of the defendant is situated at Tuticorin, Tamil Nadu. Hence it is found that this court has no jurisdiction to entertain the suit.”
Many a time the carrier or their agent and the discharge port are compelled to defend suits initiated in places which have no relevance or collection with the contract of carriage. Such suits are filed on the pretext that the goods carried are covered by an insurance policy which had been issued at the particular place were the suit had been initiated. Notwithstanding the fact that neither the carrier nor the steamer agent are privy to such insurance policies, they are compelled to defend civil action at such places which are alien to them.
The judgment rendered by the presiding judge Smt. Prasanna Gopan reiterates the well settled law that mere issuance of an insurance policy does not confer jurisdiction upon the courts at the place of such issuance to entertain a damage claim against the carrier or its agent if the requirements under section 20 of the code of civil procedure are not satisfied.
The Judgment of the Hon’ble Court rendered by Smt. Prasanna Gopan can be accessed at: 
https://www.scribd.com/document/327754997/Os-544-Final-Order-Bsv-Kollam-Pandi
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Thursday, August 25, 2016

MARINE POLLUTION FROM SHIP WRECKS ALONG INDIAN COAST - NATIONAL GREEN TRIBUNAL OF INDIA RENDERS A HISTORIC JUDGMENT.



(V.M. Syam Kumar, Advocate, High Court of Kerala)
In what could be termed as a magnum opus on the case law relating to marine pollution in India, Justice Swatanter Kumar former judge of the Supreme court of India and the Chairperson of the National Green Tribunal has recently rendered a judgment holding that “No party from any country in the world has the right/privilege to sail an unseaworthy ship to the Contiguous and Exclusive Economic Zone of India and in any event to dump the same in such waters, causing marine pollution, damage or degradation thereof.”
The erudite judgment was the culmination of a litigation initiated by a citizen inter alia seeking to make the Owner of a vessel and its charterer liable for the damage caused to the ecosystem and pay compensation of the loss to ecology and livelihood in accordance with the ‘Polluter Pays Principle’.
M.V. RAK was carrying coal for and on behalf of an Indian Company. The Ship was carrying more than 60054 MT coal in its holds. The Ship contained 290 tonnes of fuel oil and 50 tonnes of diesel. Its voyage was from Indonesia to Dahej. On its voyage to destination, the ship sank approximately 20 Nautical Miles from the coast of South Mumbai. There was an oil spill in August, 2011 which occurred in the Arabian Sea, off the coast of Mumbai due to the sinking of the ship. The spilled oil from the ship spread beyond Mumbai to Raigad District. Traces were noticed particularly between Uttan in Bhayandar and Gorai beach. Continuous trail of oil leak from the ship was observed upto 12 Nautical Miles. A very thick oil slick up to one nautical mile and a thick layer of oil upto two Nautical Miles was also observed. During the first few days, oil was leaking at the rate of 1–2 tonnes per hour and on August 12, 2011 according to the Applicant, the rate of oil spill was 7 to 8 tonnes per day as per the information of the Coast Guard. Press Information Bureau Report and the press release of the MoEF & CC indicated said statistics. It is reiterated that the ship was carrying more than 60000 MT of coal for Adani Enterprises Limited for its thermal power plant at Dahej in Gujarat. As a result of the oil spill, there has been damage to mangroves and marine ecology of the Bombay coast. Various press information and articles were published in the newspapers during August, 2011 and particularly from 8thto 12thAugust, 2011. The impact of the oil spill has been clearly noticed and is visible on the mangroves of Mumbai. The lower portion of mangroves at Bandra had turned dark because of a layer of oil and got destroyed. The Government had also taken the view that the oil seen at Juhu Beach is due to localized events and not due to oil spill, but this was a misconception. Other accidents of oil leak from other ships had also taken place in 2010 near Uran.
In a detailed judgment the Tribunal examined various national and international legal norms on marine pollution including crucial questions on coastal state’s jurisdiction over its adjacent maritime zones and came down heavily on the polluters.
On the facts of the case it was held that “It is not a case of sinking of a ship by accident simpliciter, but it is a case where element of mens rea can be traced from the unfolding of the events that finally led to the sinking of the ship on 4thAugust, 2011. Non-rendering of requisite help/assistance by Respondent no.5 and other persons interested and responsible, to the Master of the Ship, despite the fact that they had complete knowledge about the status of the ship prior to the occurrence of the incident on 4thAugust, 2011. Furthermore, these Respondents did not adhere to the Principle of Due Diligence pre-voyage, for which they had sufficient means and time. The ship had developed mechanical and technical snags at Colombo and Singapore and the Master of the ship had asked for help there during its onward journey. There is nothing on record to show that Respondent no.5 and other Respondents provided timely assistance to the Master of the ship. It is also on record that there were repeated requests for help and for stoppage of the voyage in the meanwhile. During the entire duration, the owners and the other Respondents directed the ship to continue with its voyage, even though one of the pumps and a generator of the Ship had been rendered non-functional. This is really a case where the doctrine of res ipsa loquitor comes completely into play and the events speak for themselves to the extent that it hardly requires any further evidence to establish the element of negligence, carelessness and ill-design for sinking of the ship with the cargo itself.”
The Tribunal further held that the reports on record exhibit the callous attitude of the persons interested in the ship towards its seaworthiness and safe voyage to Dahej in Gujarat.
It was held that the pollution is not limited to an individual or a singular item. It is a problem of multiple sources of pollution, resulting from oil spill, sinking of the ship and its cargo. It will affect the marine environment that includes sea water, quatic life, shore, seabed, mangroves, tourism and public life of the people living at the shore. The adverse impacts were not seen only at a singular point but at multiple beaches as afore-stated.
Pinning down those directly responsible for marine pollution, the Tribunal held that “We have discussed in great detail all concepts of this case and have held that Respondents no.5, 7 and 11 are liable for all the degradation, damage and pollution of marine environment and the consequences of the defaults in not complying with the Conventions and the law in force in the Indian Waters (Contiguous Zone). While Respondent no.6, who had chartered the ship is responsible and liable for damage and pollution resulting from the cargo, for which, despite the fact that years have gone by, it has made no effort either to remove the cargo or even take the minutest preventive or pre-cautionary measures for controlling and preventing pollution of marine environment.”
“The damage caused by pollution, cannot be computed in terms of money with exactitude and precision. This has to be on the basis of some hypothesizing or guess work as is necessary to be applied in such cases. For instance, the damage caused to the aquatic life, mangroves, sea shore and tourism are incapable of being computed exactly in terms of money. The mangroves were destroyed as a consequence of the oil spill. The quantum of leakage of oil during the first few days, was at the rate of 1–2 tonnes per hour and on August 12, 2011 according to the Applicant, the rate of oil spill was 7 to 8 tonnes per day as per the information of the Coast Guard. It shows the massive oil spill from the ship. Thereafter the ship has been lying at the present location (20 Nautical Miles from the baseline of the Mumbai shore). The ship itself has dead weight 63695 with a cargo of 60054 MT and with all other metallic and non-metallic substance such as asbestos, machines, oil, grease and other elements including the coal as cargo of the sunken ship.”
Evoking the ‘Precautionary Principle’ in light of the facts of the present case, the Tribunal held that the Owners and the Charterers  have completely ignored this principle and did not take due precautions at the appropriate time. Even after the accident, none of them have taken any steps to remedy the wrong since they are content with the dumping of the ship along with its cargo in Indian waters as they have not suffered any liability in that regard.”  This is a patent and flagrant violation of the Precautionary Principle. Serious pollution has been caused by the oil spill and by the sinking of the ship and the cargo. The environment as already noticed under the Indian jurisprudence has been given a very wide meaning and practically covers whatever one can think the term may include.
The judgment rendered by Justice Swatanter Kumar is an important milestone in the evolution of marine pollution law in India. Finally Indian legal system has a judgment albeit from a Tribunal, laying down the basic tenets of marine pollution jurisprudence. This judgment will serve as a beacon for further legal decisions on marine pollution.   
The Judgment of the National Green Tribunal can be read here: