KASHIBAI Vs. SCINDIA STEAM NAVIGATION CO LTD

JUDGEMENT

(1.) THIS is an appeal filed by the plaintiffs, the widow and the heirs of one Eknath Dhondu Adurkar, who died as a result of the collision on the high seas between the defendant company's cargo boat "jalamanjari" and the country craft "pandavi". This widow and the heirs filed suit No. 72-5 of 1955 in the Bombay City Civil Court claiming damages to the tune of Rs. 20,000/-under the Fatal Accidents Act, 1855, on account of the death of Eknath Dhondu Adurkar, It was contended by the defendant company that the suit fell within the Admiralty Jurisdiction of the High Court and that the. City Civil Court had, therefore, no jurisdiction to entertain it. On behalf of the plaintiffs, however, it was contended that the suit was filed under the Fatal Accidents Act and that, therefore, it did not fall within the Admiralty Jurisdiction of the High Court. The learned Principal Judge did not agree with the contention of the plaintiffs and held that in spite of the fact that the claim in the plaint was stated to have been made under the Fatal Accidents Act, it was really a claim for damages arising out of the death of Eknath Dhondu Adurkar as a result of a collision between the defendant company's cargo boat "jalamanjari" and the country craft "pandavi" on the high seas, and that, therefore, the suit fell within the Admiralty Jurisdiction of the High Court and that the City Civil Court had no jurisdiction to entertain it. The learned Principal Judge, accordingly, rejected the plaint and ordered it to be returned to the plaintiffs for being presented to the proper Court. The present appeal is directed against that order of the learned Principal Judge.

(2.) IT is true that until 1911 it was held in England that "damage done by a ship" referred to in Section 7 of the Act of 1861 did not include an injury resulting in the death of any person and accordingly, in such cases no action in rem for damages could he entertained by the Admiralty Division of the High Court In 1911, however, an enactment entitled "maritime Convention's Act" was passed by the British Parliament and by Section 5 thereof it was provided as follows:-"any enactment which confers on any Court Admiralty Jurisdiction in respect of damages shall have effect as though references to such damage included references to damages for loss of life or personal injury, and accordingly proceedings in respect of such damages may be brought in rem or in personam". Since the passing of this Act actions for damages on account of the loss of life or personal injury caused by any ship on the high seas were brought within the Admiralty. Jurisdiction of the High Court in England and proceeding in respect of such damages could be brought not only in rem but also in personam, thus excluding the jurisdiction of the Common Law Courts in respect of ail claims arising out of damage "done by a ship" referred to in Section 7 of the Act of 1861 which not only conferred exclusive jurisdiction on the High Court of Admiralty in respect of such damage but also provided that proceedings in respect of such damage Could be brought in that High Court either in rem or in personam. The question as to whether or not the jurisdiction conferred by the Act of 1,861 in respect of such damage on the High Court of Admiralty was exclusive has been exhaustively dealt with by me in Kamlakar Mahadev v. Scindia Steam Navigation Co. Ltd. , Appeal No. 113 of 1958 : (AIR 1961 Bom 186) and, therefore, I need not discuss it in this appeal over again.

(3.) IN this connection, reference may be made to a passage in "maclachlam on Merchant Shipping". 7th Edition; at p. 238, which is as follows:-"before the Maritime Conventions Act, 1911, it had been decided by the House of Lords that the Admiralty Division of the High Court could not entertain an action in rem for damages for loss of life under Lord Campbell's Act, 9 and 10 Vict. c. 93. The law, however, has now been altered by the Maritime Conventions Act".