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Thursday, October 18, 2012

On 21.08.2005, Jupiter-6 along with its crew comprising 10 Indians and 3 Ukrainians, left Walvis Bay in Namibia and was towing a dead ship Satsung on its way to Alang in Gujarat in India. On 05.09.2005, Jupiter-6 went missing in the high seas. On 10.10.2005, respondent no. 4 informed the Director General of Shipping, Bombay, that it had received a distress signal from Jupiter-6 via its life saving radio equipment on board and a search was conducted from the place where distress signal originated, which was 220 nautical miles South of Port Elizabeth, South Africa, but Jupiter-6 could not be located. Pursuant to reports in a section of the media about the missing of Jupiter-6 since 08.10.2005, the Director General of Shipping, Bombay, issued a press release on 15.10.2005 that the Ministry of Shipping and Road Transport and Highways had alerted the Indian Coast guard which, in turn, has alerted the South African Search and Rescue Region as Jupiter-6 was last sighted near Cape Town in South Africa and that all efforts are being made to trace the crew members. On 25.04.2006, however, the respondent no. 4 sent a letter to the petitioners saying that all efforts to search the missing Jupiter-6 and her 13 crew members have proved unproductive and that the owners of the vessel are coordinating with the underwriters for nomination of local P & I correspondent who will deal with them for requisite compensation package and on getting further information from the local P & I correspondent, the petitioners will be informed of the further follow-up action to process the claims. Finally, the petitioners received the communication dated 17.08.2006 from the Government of India, Ministry of Shipping, Government Shipping Office, Mumbai, certifying that their husbands/sons were presumed to be dead.


                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 505 OF 2006

Sabeeha Faikage & Ors.                          … Petitioners

                                   Versus

Union of India & Ors.                            … Respondents




                                  O R D E R

A. K. PATNAIK, J.



      The petitioners have lost their husbands/sons  in  a  marine  casualty
and have filed this writ petition  under  Article  32  of  the  Constitution
complaining of the breach of the fundamental right to life under Article  21
of the Constitution.

2.    The facts very briefly are that the husbands of petitioner nos.  1,  2
and 3 and the sons of petitioner nos. 4 and  5  were  recruited  and  placed
through respondent nos. 4 and 5 to work as Seafarers  on  tugboat  Jupiter-6
carrying the flag of Saint  Vincent  and  the  Grenadines.   On  21.08.2005,
Jupiter-6 along with its crew comprising 10 Indians and 3  Ukrainians,  left
Walvis Bay in Namibia and was towing a dead  ship  Satsung  on  its  way  to
Alang in Gujarat in India.  On 05.09.2005, Jupiter-6  went  missing  in  the
high seas.  On 10.10.2005, respondent no. 4 informed  the  Director  General
of Shipping, Bombay, that it had received a distress signal  from  Jupiter-6
via its life saving radio equipment on board  and  a  search  was  conducted
from the place where distress signal  originated,  which  was  220  nautical
miles South of Port Elizabeth, South Africa,  but  Jupiter-6  could  not  be
located.  Pursuant to reports in a section of the media  about  the  missing
of Jupiter-6 since 08.10.2005, the Director  General  of  Shipping,  Bombay,
issued a press release on 15.10.2005 that the Ministry of Shipping and  Road
Transport and Highways had alerted the Indian Coast guard  which,  in  turn,
has alerted the South African Search and  Rescue  Region  as  Jupiter-6  was
last sighted near Cape Town in South Africa and that all efforts  are  being
made to trace the crew members.  On 25.04.2006, however, the respondent  no.
4 sent a letter to the petitioners saying that all  efforts  to  search  the
missing Jupiter-6 and her 13 crew members have proved unproductive and  that
the owners  of  the  vessel  are  coordinating  with  the  underwriters  for
nomination of local P  &  I  correspondent  who  will  deal  with  them  for
requisite compensation package and on getting further information  from  the
local P & I correspondent, the petitioners will be informed of  the  further
follow-up  action to process the claims.  Finally, the petitioners  received
the communication dated 17.08.2006 from the Government  of  India,  Ministry
of Shipping, Government  Shipping  Office,  Mumbai,  certifying  that  their
husbands/sons were presumed to be dead.

3.     The  petitioners   have   prayed   for   inter   alia   a   writ   of
mandamus/direction to the respondents to conduct an investigation  into  the
mysterious disappearance of their husbands/sons who were on  board  Jupiter-
6.  The petitioners have also  prayed  for  an  enquiry  to  find  out  what
transpired between the Government of India and the  Saint  Vincent  and  the
Grenadines on account of which the Government of India  has  certified  that
their husbands/sons are presumed to be dead.  After  perusing  the  Merchant
Shipping Notice No.26 of 2002 dated 10.10.2002 issued by the  Government  of
India,  Ministry  of  Shipping,  Directorate  of  the  Director  General  of
Shipping, (for short “M.S. Notice 26 of 2002”), this Court issued notice  on
10.11.2006 in the writ petition to the respondents confined to the  question
as to whether the Maritime Administration of the State (India)  was  invited
to take part in the marine casualty investigation as provided in para  4  of
M.S. Notice 26 of 2002.  In response to the notice, a counter affidavit  was
filed on 03.01.2008 on behalf of respondent nos. 1, 2 and 3 stating  therein
that they became aware  of  the  casualty  for  the  first  time  when  they
received  a  communication  dated  10.10.2005  about   the   incident   from
respondent no.4 and that the administration of the  State  (India)  was  not
invited to participate in the investigation as per para 4 of M.S. Notice  26
of 2002.

4.    The matter was thereafter heard and on 24.09.2008  this  Court  passed
an order, paragraph 4 of which is extracted hereinbelow:


       4.     The  office  of  Director  General  of  Shipping  has  issued
       M.S.Notice No.26 of 2002 dated 10.10.2002 in regard to the procedure
       to be followed in the  event  of  marine  casualties  and  incidents
       involving Indian citizens on  board  of  foreign  flag  vessels.  To
       ascertain whether there is any basis for the grievance put forth  by
       the petitioners, we, therefore, direct the Directorate  to  collect,
       analyze and  prepare  a  report  with  reference  to  the  following
       information and file the same with an  affidavit  of  a  responsible
       officer from the office of the Director General of Shipping.


       (a)     How many reports of marine casualties have been received  by
       the Indian Government after 10.10.2002 involving Indian citizens  on
       board of foreign flag vessels and how many are  received  within  48
       hours  of  the  occurrence  of  the  incident  as  required  by  the
       Directorate?
       (b)     In how many of such cases reports have been received by  the
       Directorate from the manning  agents  of  the  ships  in  India  who
       recruited the seafarers as required by clause 5(a) and (b)  of  M.S.
       Notice dated 10.10.2002?


       (c)     In how many cases, Indian Government  has  been  invited  to
       participate in the marine casualty investigation by the  lead  State
       or the flag State (as required by paras 5.2, 6.3 and 9.1 of the Code
       for the Investigation of Marine Casualties and Incidents)?


       (d) In how many cases the Indian Government has  sent  its  comments
       within 30 days from the date of receiving the  draft  of  the  final
       report from the lead investigating State (as required by clause 12.1
       of  the  Code  for  the  Investigation  of  Marine  Casualties   and
       Incidents)    to    enable    the     lead   investigating     State
           to incorporate/ amend / modify the final report?


       (e) In how many cases the Indian Government has  made  available  to
       the public the final report in regard to marine  casualty  incidents
       and, if so, the period and the manner in which it has been  so  made
       public (as required by clause 12.3 of the Code for the Investigation
       of Marine Casualties and Incidents)?


       (f)  In how many cases Indian Government has  taken  action  against
       the recruiting agents/manning agents/managers of  the  foreign  flag
       ships  which  employed  Indian  crew  and  in  what  manner  it  has
       safeguarded the interest of the Indian crew (particularly in view of
       its M.S. Notice No.13 of 2005 dated 25.10.2005  of  the  Directorate
       which admits the receipt of several complaints about the failure  of
       shipping companies and recruiting  agents  of  Indian  seafarers  in
       reporting marine casualties involving them to the Government and the
       family members) for non-compliance with its direction?


                The above information, if made available, will enable us to
       decide whether there is really implementation or compliance  of  the
       Conventions and Codes relating to marine casualty incidents. We find
       that the counter affidavit filed by the Indian Government  does  not
       furnish necessary and sufficient details.


                Learned counsel for the petitioner and learned counsel  for
       the ship  managers  and  the  learned  ASG  may  also  submit  their
       suggestions for proper and better  implementation  of  the  existing
       Conventions and Codes.


                The pendency of this petition or any further  investigation
       in the matter by any agency should not come in the way of either the
       Insurers/owners/managers of  the  tug  paying  compensation  to  the
       family members of the missing crew. In  fact,  learned  counsel  for
       respondent  No.4  and  5  stated  that  they  have  offered  interim
       compensation to the families.   The petitioners deny that  any  such
       offer was made. The learned counsel for respondents 4 and  5  stated
       that even now respondents 4 and 5 are willing and ready to make  the
       interim payment without prejudice to the rights and  contentions  of
       both the parties and the same will be despatched within 10 days from
       today and that they will get in touch with the insurers for  release
        of   the   amounts   to   the    missing   crew   family    members
       expeditiously.   We make it clear that receipt of any amount by  the
       family members of the missing  crew  may  receive  any  compensation
       tendered or paid  by  the  managers  or  insurers  will  be  without
       prejudice and receipt of such payment will not prejudice their  case
       in any manner.”


   5. A reading of the para 4 of the order dated 24.09.2008 would show  that
      this Court limited the scope of the writ petition to two  issues:  (i)
      the safety of Indian citizens on board of  foreign  flag  vessels  and
      (ii) in case such Indian citizens on board a foreign flag vessel  lost
      their lives, the compensation payable to their kith and kin.   On  the
      first issue, the Court called upon the Union of India to  furnish  the
      necessary and sufficient details with regard to implementation of  the
      Conventions and Codes relating to marine casually incidents and on the
      second issue, the Court called upon respondents 4  and  5  to  release
      interim compensation to the family members of  the  missing  crew  and
      clarified that the compensation paid by respondents 4  and  5  or  the
      insurers will be without prejudice to the claim of the family  members
      of the crew.

   6. Pursuant to the aforesaid order passed on 24.09.2008, respondents 1, 2
      and 3 filed affidavits from time to time referring to the steps  taken
      by the Government of India  to  ensure  the  safety  and  security  of
      seafarers including a chart showing the position  of  various  welfare
      measures and safety measures relating to seafarers in 2006  and  2011.
      Pursuant to  the  order  passed  on  24.09.2008  of  this  Court,  the
      respondent nos. 4 and 5  also  informed  this  Court  that  M/s  James
      Mckintosh Company Pvt. Ltd., Mumbai, have on behalf of the  owners  of
      Jupiter-6 offered to pay a compensation  at  the  rate  of  40,000  US
      Dollars for the death of each of the officers on board  Jupiter-6  and
      at the rate of 25,000 US Dollars for the death of  each  of  the  non-
      officers on board Jupiter-6.  They further informed  this  Court  that
      out of the thirteen crew members of  Jupiter-6,  the  three  Ukrainian
      nationals have been paid compensation by the owners of the vessel  and
      the  widow  of  one  non-officer  Mr.  Subhash  Das  has   been   paid
      compensation of 25,000 US Dollars.   Accordingly,  on  15.11.2010  the
      Court directed that a sum of 2,85,000 US  Dollars  for  the  remaining
      nine  Indian  seafarers  (four  officers  and  five  non-officers)  be
      deposited in  Court  for  payment  to  their  family  members  without
      prejudice to their claims for higher compensation.  Thereafter, a  sum
      of Rs.1,29,29,386/- equivalent to 2,85,000 US Dollars was deposited by
      respondents 4 and 5 and by order dated 28.03.2011, the Court permitted
      the legal heirs/representatives of the officers/seamen to lodge  their
      claims for disbursement of compensation with the Registrar  (Judicial)
      who was required to verify the claims and  submit  a  report  to  this
      Court with regard to disbursement.  Registrar (Judicial) is now in the
      process of verifying the claims and  disbursing  the  amounts  to  the
      legal heirs of the deceased Indian seafarers.

   7. At  the  hearing  of  the  writ  petition,  learned  counsel  for  the
      petitioners Mr. P. Soma Sundaram and Mr.  Vipin  Nair  submitted  that
      under Article 21 of the Constitution every person has been  guaranteed
      the right to life and this right has been violated in the case of  the
      seafarers on board Jupiter-6.  They submitted  that  though  Jupiter-6
      went missing in the  high  sea  on  05.09.2005,  the  respondent  no.4
      informed the Government about the loss  of  Jupiter-6  35  days  after
      05.09.2005, i.e. on 10.10.2005, and the Government did not conduct any
      investigation into the  incident  and  issued  death  certificates  on
      17.08.2006 saying that the crew members of Jupiter-6 are  presumed  to
      be dead.  They submitted that under M.S. Notice 26 of 2002 the manning
      agents who have recruited the seafarers  on  board  the  foreign  flag
      vessel, in the present case respondent nos.4 and 5, were  required  to
      inform the Government about the marine casualty within three  days  of
      the incident and as the Indian nationals were involved in  the  marine
      casualty, the Government of India was required  to  conduct  a  marine
      casualty investigation  forthwith.   They  submitted  that  under  the
      Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2005
      (for short ‘the Rules 2005) and in  particular  Rule  3  thereof,  the
      Government was also  required  to  conduct  an  investigation  when  a
      complaint is received against the Recruitment  and  Placement  service
      providers, but no such enquiry has been conducted by the Government on
      the complaint regarding  missing  of    Jupiter-6  despite  complaints
      having been made to the Government.  They also referred  to  the  Flag
      State Report of the Maritime Investigation Branch, Saint  Vincent  and
      the Grenadines, Report No.5  of  September  2005,  which  states  that
      disappearance of Jupiter-6 along with  her  crew  remains  an  enigma.
      They submitted that this report would go to show that respondent  nos.
      4 and 5 had been indicted for the incident and yet no action has  been
      taken by the Government against respondent nos. 4 and 5.

   8. Learned counsel for the petitioners next submitted that under  Rule  4
      (3)(a) of the Rules 2005 read with Form-III prescribed  by  the  Rules
      2005, it is  mandatory  for  the  Recruitment  and  Placement  service
      providers to provide insurance cover to  the  seafarers  they  employ.
      They submitted that it will be clear from the declaration to be  filed
      by the Recruitment and Placement service providers in  Form-III  along
      with the application for licence that they are required to ensure that
      all seafarers recruited and placed with the ship owners are adequately
      covered by insurance cover.  They submitted that under Rule  3  (1)(j)
      of the Rules 2005, the Recruitment  and  Placement  service  providers
      also have the legal  obligation  to  inform  the  seamen’s  employment
      office concerned and next of kin of the  seafarer  of  each  death  or
      disability of the seafarer within forty-eight hours of such  death  or
      disability as well as the details of the  insurance  coverage  of  the
      seafarers but in spite of such legal requirements, respondent  nos.  4
      and 5 have not disclosed the details of the insurance coverage to  the
      seafarers.   They  submitted  that  respondent  nos.  4  and   5   are
      responsible for providing adequate  insurance  coverage  as  they  had
      assumed the responsibility for operation of the ship as  Managers  and
      were  actually  the  ship  owners  and  were  thus  liable   for   the
      compensation  payable  to  the  petitioners.   They  argued  that  the
      insurance amounts of 40,000 US Dollars for each of  the  officers  and
      25,000 US Dollars for each of the non-officers deposited by respondent
      nos. 4 and 5 in this Court  are  not  adequate  and  the  compensation
      amounts should have  been  much  higher  as  indicated  in  the  Model
      Collective Bargaining Agreements for Indian seafarers filed along with
      the letter dated 02.11.2010 of the Government of  India  addressed  to
      the Registrar of this Court annexed to the affidavit filed  on  behalf
      of respondent nos.1, 2 and 3  on  19.07.2011.    They  relied  on  the
      decision of this Court in Lata Wadhwa & Ors. v. State of Bihar &  Ors.
      [(2001) 8 SCC 197] in which this Court, while  exercising  its  powers
      under Article 32 of  the  Constitution,  directed  payment  of  higher
      compensation for each of the claimants on account of deaths in a  fire
      tragedy by Tata Iron and Steel Company Limited.  They also  relied  on
      the recent decision of this Court in Municipal Corporation of Delhi v.
      Association of Victims of Uphaar Tragedy & Ors. [AIR 2012 SC  100]  in
      which this Court enhanced the compensation payable to the claimants on
      account of death and injury in a fire tragedy in Uphaar  Cinema  Hall.
      They submitted that similar directions for determination of the higher
      compensation by the Registrar of this Court may be given in this  case
      also.

   9. Learned counsel for the  petitioners  finally  submitted  that  though
      Rules 2005 mandates that insurance coverage  has  to  be  provided  to
      Indian seafarers, it  does  not  mention  the  amount  for  which  the
      insurance coverage is to be done.  According to  the  learned  counsel
      for the petitioners, this lacuna in  law  in  respect  of  quantum  of
      insurance coverage should be filled up by this Court by  invoking  its
      powers under Article 142 of the  Constitution.   In  support  of  this
      submission, they relied on the  judgments  of  this  Court  in  Indian
      Council for Enviro-Legal Action v. Union of India & Ors. [(2011) 8 SCC
      161], Union of India v. Association for Democratic  Reforms  and  Anr.
      [(2002) 5 SCC 294], Ashok Kumar Gupta & Anr. v. State of U.P.  &  Ors.
      [(1997) 5 SCC 201] and Vineet Narain & Ors. v. Union of India  &  Anr.
      [(1998) 1 SCC 226].  They submitted that  this  Court  should  declare
      that in case of a  marine  casualty  involving  Indian  citizens,  the
      amount payable in case of death of an officer would be 89,100 plus  US
      Dollars and the amount payable in case of  death  of  a  child  of  an
      officer under 18 years would be  17,820  US  Dollars  and  the  amount
      payable in case of death of a non-officer would be 82,500  US  Dollars
      plus and the amount payable in case of death of  a  child  of  a  non-
      officer under 18 years 16,500 US Dollars.

  10.  Mr. Rajeev Dutta, learned counsel appearing for respondent nos.4  and
      5, submitted that notice in the writ petition was initially limited to
      the question as to whether the Maritime Administration  of  the  State
      (India) was invited to take part in the marine casualty  investigation
      as provided in para 4 of M.S. Notice 26 of 2002, but  subsequently  by
      order dated 24.09.2008 of this Court the scope of the enquiry  in  the
      writ petition has been widened to include the safety of the  seafarers
      and disbursement of compensation to the seafarers on  board  Jupiter-6
      who have lost their lives.   Relying on the counter affidavit filed by
      respondent no.4, he submitted that respondent no.4 came to know  about
      Jupiter-6 going missing  on  08.10.2005  at  about  2100  hrs.  Indian
      Standard Time (Saturday) and immediately thereafter,  respondent  no.4
      informed the Director General of Shipping on 10.10.2005 at about  1100
      hrs. Indian Standard Time (Monday) about the incident, i.e. within the
      stipulated time as per M.S. Notice 26 of 2002.  He argued  that  there
      was, therefore, no delay on the part of respondent no.4 to inform  the
      Government of  India  about  the  incident.   He  submitted  that  the
      seafarers, who were employed and placed on board Jupiter-6, were bound
      by the terms of the employment contract which provided that they  will
      be governed by the law of Flag State and the employment  contract  did
      not stipulate for compensation in case of death or disability nor  was
      the employment contract governed by the provisions of  the  Collective
      Bargaining Agreements.  He submitted that under  Section  338  of  the
      Shipping Act, 2004 of Saint Vincent and the Grenadines, the Flag State
      of Jupiter-6, the limits of liability of  the  ship  owner  have  been
      fixed for claims arising on any distinct occasion and the compensation
      deposited in this Court at the rate of 40,000 US Dollars  in  case  of
      death of officers and 25,000 US Dollars  in  case  of  death  of  non-
      officers is in accordance with the provisions of Section  338  of  the
      Shipping Act, 2004 of Saint Vincent and the Grenadines.  He vehemently
      argued that since the aforesaid compensation amount has been deposited
      for disbursement  to  the  legal  heirs  of  the  deceased  seafarers,
      respondent nos.4 and 5 are not liable for any amount  of  compensation
      and this Court should not, therefore, direct for any higher amount  of
      compensation than what has been deposited.

  11.  Mr. H.P. Raval, learned Additional Solicitor General  for  respondent
      nos.1, 2 and 3, submitted that the Merchant Shipping  Act,  1958  does
      not apply to seamen on board of a  ship  or  a  vessel  of  a  foreign
      country.  He referred to the counter  affidavit  filed  on  behalf  of
      respondent nos.1, 2 and 3 on 03.01.2008 and the annexure  thereto  and
      submitted that the respondent no.4  by  its  letter  dated  10.10.2005
      informed the Director General of Shipping about  the  Jupiter-6  going
      missing and on 19.10.2005, the Surveyor  Incharge-cum-Deputy  Director
      General of Shipping requested Saint  Vincent  and  the  Grenadines  to
      carry out investigation into the casualty  as  Indian  nationals  were
      involved in the casualty.  He referred  to  the  additional  affidavit
      filed on behalf of the Union of India in December 2009  in  which  the
      various measures taken by the Government of India for  the  safety  of
      the seafarers have been detailed.  He submitted that  the  Rules  2005
      make it obligatory for Recruitment and Placement service providers  to
      declare that all seafarers recruited and placed on board by them would
      be  adequately  covered  by  insurance  cover,  but  the  quantum   of
      compensation for which the seafarers are to  be  insured  in  case  of
      injury or death have not been indicated therein and this has  resulted
      in variable amounts of compensation being  paid  to  Indian  seafarers
      working  in  different  shipping   companies,   often   resulting   in
      exploitation of categories  which  are  lesser  in  demand.   He  also
      referred to the affidavit filed on behalf of respondent nos.1, 2 and 3
      on 20. 09.2011 in which a chart has been extracted  to  show  how  the
      Government of  India  proposes  to  improve  the  welfare  and  safety
      measures relating to seafarers over what existed in 2006.  He  finally
      submitted that so far as respondent no.4 is concerned its  application
      for registration as Recruitment and Placement  service  providers  has
      been rejected by the speaking order dated 16.06.2008 of the  Director,
      Seamen’s Employment Office, Department of  Shipping,  for  default  in
      paying compensation to the crew of  a  vessel  other  than  Jupiter-6,
      namely, M.V. RAZZAK, which also went missing.

  12.   We have considered  the  submissions  of  learned  counsel  for  the
      parties and we find that in P.D. Shamdasani v. Central Bank  of  India
      [AIR 1952 SC 59] a Constitution Bench of  this  Court  has  held  that
      right to life and personal liberty guaranteed under Article 21 of  the
      Constitution is only available against the State and that  Article  21
      was not intended to afford protection to  life  and  personal  liberty
      against violation by private individuals.  Hence,  the  main  question
      that we have to really decide in this case is  whether  the  Union  of
      India (not  respondent  no.4  nor  respondent  no.5)  was  liable  for
      violation of the right to life guaranteed  under  Article  21  of  the
      Constitution and was liable for any compensation  to  the  petitioners
      for not causing a marine casualty investigation  when  Jupiter-6  went
      missing in the high seas.  Jupiter-6 was carrying the  flag  of  Saint
      Vincent and the Grenadines, although it had on its board  some  Indian
      seafarers.  The Director General of Shipping has issued M.S. Notice 26
      of 2002, which lays down the procedure with regard to marine  casualty
      investigation involving Indian citizens on board foreign flag vessels.
       M.S. Notice 26 of 2002 states that  India  is  a  major  supplier  of
      manpower to global shipping  and  in  the  recent  past  it  has  been
      observed with concern that many of the  accidents/  incidents  at  sea
      involving Indian citizens on board foreign flag vessels have not  been
      reported to the Indian Maritime Administration.  It also  states  that
      the Code for Investigation of Marine Casualties and Incidents had been
      adopted on 27.11.1997 by the IMO Assembly in its 20th Session and  the
      code provides for  casualty  investigation  with  the  involvement  of
      different interested States.  It has been further clarified in para  2
      of M.S. Notice 26 of 2002 that this Code applies to either one or more
      interested States that are substantially interested in marine casualty
      and the substantially  interested  States  includes  the  State  whose
      nationals have lost their lives or  received  serious  injuries  as  a
      result of the marine casualty.  It is  provided  in  para  2  of  M.S.
      Notice 26 of 2002 that the onus of conducting the  investigation  into
      the marine casualty lies with the flag  State  or  the  coastal  State
      within whose territorial sea the casualty has  occurred.   Para  4  of
      M.S. Notice 26 of 2002,  however,  states  that  for  the  purpose  of
      effective casualty investigation, it is imperative that  the  Maritime
      Administration of the State,  whose  nationals  are  involved  in  the
      marine casualty, by virtue of being ship’s crew,  is  required  to  be
      invited to take part  in  the  marine  casualty  investigation,  as  a
      substantially  interested  State,  by   the   State   conducting   the
      investigation.  It is also stated in para 4 of M.S. Notice 26 of  2002
      that our Maritime Administration should be proactively involved in the
      investigation and should take part in it as a substantially interested
      State in  order  to  facilitate  effective  investigation  and  proper
      analysis of all marine casualties involving Indian nationals  and  for
      correctly identifying the causes of said casualties.

  13.    In the counter affidavit filed on behalf of respondent  nos.  1,  2
      and 3 on 03.01.2008, it is stated that on receipt of the letter  dated
      10.10.2005 from respondent no.4, Surveyor Incharge-cum-Deputy Director
      General of Shipping by letter dated 19.10.2005 requested Saint Vincent
      and the Grenadines to carry out the investigation  into  the  casualty
      and submit the investigation report along with  the  findings  of  the
      casualty as that would alleviate the sufferings of the families of the
      Indian crew members.  It is further stated in  the  aforesaid  counter
      affidavit  of  respondent  nos.  1,  2  and  3   that   the   maritime
      investigation branch, Saint Vincent and the Grenadines sent  a  report
      of the investigation which was carried out in September 2005,  but  in
      this report it  is  stated  that  no  definite  conclusion   could  be
      ascertained about the events but there  could  be  following  possible
      scenarios:


      “1.   The crew was trying to reconnect the tow again under  conditions
           of significant swell, the tug capsized and sunk.


           Released  EPIRB  signal  33  days   after   m.v.   “JUPITER   6”
           disappearance cannot be connected with this scenario.


      2.    Piracy/hijacking
           Piracy/hijacking is not common in this area.


           Suspicion of Piracy/hijacking remains valid as there was 180  MT
           of diesel oil on board the tug.


           For the time being our conclusion about  the  Manager’s  actions
           regarding this accident are as follows:


           The disappearance of  m.v.  “Jupiter  6”  along  with  her  crew
           remains an enigma.”


Thus, respondent nos. 1, 2 and 3 became aware of the casualty for the  first
time when  they  received  the  communication  dated  10.10.2005  about  the
incident from respondent no.4 and the Surveyor Incharge-cum-Deputy  Director
General of Shipping by letter dated 19.10.2005 requested Saint  Vincent  and
the Grenadines to carry out the investigation into the  casualty  as  Indian
nationals were part of the  crew  of  Jupiter-6.   On  these  facts,  it  is
difficult for us to hold that the Union of India was guilty of violation  of
the right to life and was liable for compensation to the petitioners.

14.     In Municipal Corporation of  Delhi  v.  Association  of  Victims  of
Uphaar Tragedy  &  Ors.  (supra)  cited  by  the  learned  counsel  for  the
petitioners, the Delhi High Court had held  the  theatre  owner  (licensee),
Delhi Vidyut Board (DVB), Municipal  Corporation  of  Delhi  (MCD)  and  the
licensing authority liable for the fire incident in Uphaar Cinema  Hall  and
severely compensated the victims of the accident, but this Court  held  that
the  MCD  and  the  licensing  authority  could  not  be  held  liable   for
compensation merely because there has been some inaction in  performance  of
the statutory duties or because the  action  taken  by  them  is  ultimately
found to be without authority of law and they would be liable only if  there
was some malice or conscious abuse on  their  part.   This  Court,  however,
held in the aforesaid case that DVB was liable because direct negligence  on
its part had been established and this negligence was a proximate cause  for
the injuries to and death of the victims.  Para 32 of the  opinion  of  R.V.
Raveendran, J., in the aforesaid case is quoted hereinbelow:
      “It is evident from the decision of this Court as also  the  decisions
      of the English and Canadian Courts that it  is  not  proper  to  award
      damages against public authorities merely because there has been  some
      inaction in the performance of their statutory duties or  because  the
      action taken by them is ultimately found to be  without  authority  of
      law. In regard to performance of statutory functions and  duties,  the
      courts will not award damages unless  there  is  malice  or  conscious
      abuse. The cases where damages have been awarded for direct negligence
      on the part of the statutory authority or cases involving doctrine  of
      strict liability  cannot  be  relied  upon  in  this  case  to  fasten
      liability against MCD or the Licensing Authority. The position of  DVB
      is different, as direct negligence on its part was established and  it
      was a proximate cause for the injuries to and death of victims. It can
      be said that insofar as the licensee and DVB are concerned, there  was
      contributory negligence. The position of licensing authority  and  MCD
      is different. They were not the owners  of  the  cinema  theatre.  The
      cause of the fire was not attributable to them  or  anything  done  by
      them. Their actions/omissions were not the  proximate  cause  for  the
      deaths and injuries. The  Licensing  Authority  and  MCD  were  merely
      discharging their statutory functions (that is granting licence in the
      case of licensing authority and submitting  an  inspection  report  or
      issuing a NOC by the MCD). In such circumstances, merely on the ground
      that the Licensing Authority and MCD could have performed their duties
      better or  more  efficiently,  they  cannot  be  made  liable  to  pay
      compensation to the victims of the  tragedy.  There  is  no  close  or
      direct proximity to the acts of the Licensing Authority and MCD on the
      one hand and the fire accident and the death/injuries of the  victims.
      But there was close and direct  proximity  between  the  acts  of  the
      Licensee and DVB on the one  hand  and  the  fire  accident  resultant
      deaths/injuries of victims. In view of the well settled principles  in
      regard to public law liability, in regard to  discharge  of  statutory
      duties by public authorities, which  do  not  involve  mala  fides  or
      abuse, the  High  Court  committed  a  serious  error  in  making  the
      licensing authority and the MCD liable  to  pay  compensation  to  the
      victims jointly and severally with the Licensee and DVB.”

K. S. Radhakrishnan, J, while fully endorsing the reasoning as well  as  the
conclusions reached by R.V.  Raveendran,  J,  was  also  of  the  view  that
Constitutional Courts can, in appropriate  cases  of  serious  violation  of
life and liberty of  individuals,  award  punitive  damages,  but  the  same
generally requires the malicious intent on  the  side  of  the  wrong  doer,
i.e., an intentional doing of some  wrongful  act.   In  the  facts  of  the
present case, as we have noticed, the Surveyor Incharge-cum-Deputy  Director
General  of  Shipping  has  requested  the  flag  State  to  carry  out  the
investigation  into  the  casualty  within  nine  days  of  the  information
received about the casualty and we are not in a position to hold that  there
was any inaction with malicious intent or  conscious  abuse  or  intentional
doing of some wrongful act or negligence on the part of respondent  nos.  1,
2 and/or 3which was the proximate cause of the  disappearance  or  death  of
the Indian seafarers on board Jupiter-6.

15.   In  Lata  Wadhwa  &  Ors.  v.  State  of  Bihar  &  Ors.  (supra)  the
petitioners had filed a writ petition under Article 32 of  the  Constitution
on the ground that right to life under Article 21 of  the  Constitution  had
been violated and had prayed for inter alia a writ of mandamus or any  other
writ or direction in prosecution of the Tata  Iron  and  Steel  Company  and
their agents and servants, for the  alleged  negligence  in  organizing  the
function, held on 03.03.1989 in  Jamshedpur  in  which  fire  accident  took
place and to  direct  that  appropriate  compensation  be  provided  to  the
victims by the State Government as well  as  the  Company.   When  the  writ
petition came up before this Court, the senior  counsel  appearing  for  the
company stated before the Court  that  notwithstanding  several  objections,
which have been raised in the counter affidavit, the company  did  not  wish
to treat the litigation as an adverse one and  left  it  to  the  Court  for
determining  the  monetary  compensation  to  be  paid  after  taking   into
consideration all the  benefits  and  facilities  already  extended  to  the
victims or their family members.  On the aforesaid submission  made  by  the
company, the Court directed the Registry  of  the  Court  to  determine  the
compensation taking into account the enhancement made in the  judgment.   In
the facts of the present case, respondent nos. 4 and  5  have  deposited  in
this Court the  compensation  amount  made  available  by  the  insurers  of
Jupiter-6 and their counsel has not made any  submission  before  the  Court
that they are prepared to pay to the petitioners any  enhanced  compensation
as may be fixed by this Court.  As a matter of fact,  it  appears  from  the
provisions of the Shipping Act, 2004 of Saint  Vincent  and  the  Grenadines
and, in particular,  Sections  332,  333,  334  and  335  thereof  that  the
liability for compensation of any claim  in  respect  of  life  or  personal
injuries is of the ship owners/salvors  or  their  insurers  and  respondent
nos. 4 and 5 are neither the ship owners/salvors nor their insurers.

16.     As far as respondent nos. 4 and 5 are concerned, they are holding  a
recruitment and placement service licence issued under Rule 4 of  the  Rules
2005.  Rule 3(1)(j) provides that the inspecting authority shall  carry  out
an inspection of recruitment and placement service so as to ensure that  the
seamen’s employment office concerned and next of  kin  of  the  seafarer  is
informed of each death or disability of the  seafarer  within  48  hours  of
such death or disability in Form-V.   Rule  6  of  the  Rules  2005  further
provides that where there is an adverse report of the  inspecting  authority
or complaint by a seafarer or otherwise, the Director  General  of  Shipping
can authorize the Director to issue a show cause notice in Form-VII  to  the
recruitment and placement service licence  provider  requiring  it  to  show
cause within a period of thirty days from the date of issue of  such  notice
as to why the licence shall not be suspended or withdrawn and to suspend  or
withdraw the licence  after  considering  the  reply.   In  this  case,  the
licence of respondent no.4 has already been withdrawn by the speaking  order
dated 16.06.2008  of  the  Director  General,  Seamen’s  Employment  Office,
Department of Shipping, for  default  in  paying  compensation  to  crew  of
vessel M.V. RAZZAK.  Hence, even if respondent no.4  has  not  reported  the
casualty to the Director General of Shipping, Mumbai, within a period of  48
hours as stipulated in the Rules 2005 as alleged by the petitioners  in  the
writ petition, no further direction can be given by this Court in this  case
because the licence of respondent no.4 already stands withdrawn.

17.      On the quantum of  compensation,  Rule  4(3)  of  the  Rules  2005,
provides that the application for recruitment and placement service  licence
shall be accompanied by a declaration in Form III and Form III requires  the
application to inter alia make the following declaration:

       “(xi)        I/We shall ensure that all ships on which seafarers are
       recruited and placed are covered adequately by the P & I Insurance.”



All that the aforesaid declaration requires  is  that  all  ships  on  which
seafarers are recruited and placed are covered  adequately  by  the  P  &  I
Insurance.  In the present case, Jupiter-6 was a ship bearing  the  flag  of
Saint Vincent and the Grenadines and was also covered by insurance  and  the
insurers have deposited Forty Thousand Dollars  (40,000  Dollars)  for  each
deceased officer seafarer and Twenty Five Thousand Dollars (25,000  Dollars)
for each deceased non-officer seafarer.  40,000  Dollars  is  equivalent  to
Rs.18,14,800/-  and  25,000  Dollars  is  equivalent  to  Rs.11,34,250/-  as
mentioned in the report of Registrar (J).  It is difficult for  us  to  hold
that the aforesaid amount of compensation is not adequate in the absence  of
sufficient materials produced before us to  show  the  age,  income  of  the
seafarers and all other factors which  are  relevant  for  determination  of
compensation in the case of death of seafarers (officers and  non-officers).
 We cannot also direct respondent nos.3 and 4 to  pay  the  compensation  as
per the Collective Bargaining Agreements in the  absence  of  any  materials
placed before the Court to show that the respondent nos. 4 and 5 were  bound
by the Collective Bargaining Agreements.

18.   Regarding the submission of the learned counsel  for  the  petitioners
that this Court should declare law in exercise of its powers  under  Article
142 of the Constitution, we do not think that we should venture to do so  in
this case considering the numerous  factors  which  are  to  be  taken  into
consideration in making the  law  relating  to  maritime  casualty  and  the
compensation payable in  case  of  death  of  Indian  seafarers.   We  have,
however,  taken  note  of  the  additional  affidavit  filed  on  behalf  of
respondent nos. 1, 2 and 3 on 19.07.2011 in which the proposal  for  setting
up an Indian Maritime Casualty Investigation Cell and for amending the  2005
Rules have been indicated.  In our  view,  it  will  be  enough  for  us  to
recommend to the respondent no.1 to expedite the proposals which  have  been
under consideration of the Government and to take immediate steps  to  amend
the Merchant Shipping Act, 1958 and the Rules 2005 in  a  manner  they  deem
proper to ensure that the life of seafarers employed in different  ships  in
high seas are made more secure and safe and in case of loss of  life,  their
kith and kin are paid adequate amount of compensation.

19.      This writ petition is disposed of with the  aforesaid  observations
and with a direction to  the  Registrar  (J)  to  expedite  the  payment  of
compensation to the legal heirs  of  the  victims  in  accordance  with  the
orders passed in this case as early as  possible,  in  any  case,  within  a
period of four months from today.  We make it clear  that  the  compensation
received by the legal heirs of the Indian seafarers on board Jupiter-6  will
be  without  prejudice  to  their  claim  for  higher  compensation  in  any
appropriate proceedings.
                                                               .……………………….J.


                                            (A. K. Patnaik)



                                                               ………………………..J.

(Swatanter Kumar)
New Delhi,
October 18, 2012.
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