FOR REGULATING THE PROCEDURE AND PRACTICE IN CASES BROUGHT BEFORE
THE HIGH COURT OF JUDICATURE AT FORT WILLIAM IN BENGAL
UNDER THE COLONIAL COURTS OF ADMIRALTY ACT, 1890
Admiralty Rules 1912
1. Meaning of certain terms used in these rules:- In the construction of these rules the following terms shall (if not inconsistent with the context or subject matter) have the respective meanings hereinafter assigned to them; that is to say:
“The Court” shall mean the High Court at Calcutta.
“Judge” shall mean a Judge of the said Court.
“Registrar” shall mean the Registrar of the said Court, on its Original Side, or other officer authorised to perform the duties of such Registrar.
“Registry” shall mean the office of the Registrar.
“Marshal” shall mean the Marshal or his substitute or substitutes or other officer who may be appointed by the Chief Justice to execute the process of the Court.
“Attorney” shall mean any Attorney entitled to practice in the said Court, or the party himself if conducting his suit in person.
“Suit” shall mean any suit, action, or other proceeding instituted in the said Court in its jurisdiction under the Colonial Courts of Admiralty Act.
“Affidavit” shall, in addition to its ordinary meaning, include a statement in writing on solemn affirmation wherever by law a person may make a solemn affirmation instead of an oath.
2. Operation of the Rules.- These rules shall, if previously approved by His Majesty in Council, come into operation on a day to be fixed by the Court and shall apply to all suits instituted on and after that day.
3. Institution of suits.- A suit shall be instituted by a plaint drown up, subscribed and verified according to the provisions of the Code of Civil Procedure, save that if the suit is in rem the defendants may (subject to such variations as the circumstances may require) be described as “the owners and parties interested in” the vessel or other property proceeded against instead by name.
4. Arrest warrant after affidavit.- In suits in rem a warrant for the arrest of property may be issued at the instance either of the plaintiff or of the defendant at any time after the suit has been instituted, but no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed, and the following provisions complied with:-
a) The affidavit shall state the name and description of the party at whose instance the warrant to be issued, the nature of claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not been satisfied.
b) In a suit of wages or of possession the affidavit shall state the national character of the vessel proceeded against; and if against a foreign vessel, that notice of the institution of the suit has been given to the Counsel of the state to which the vessel belongs, if there is one resident in Calcutta and a copy of the notice shall be annexed to the affidavit.
(c) In a suit of bottomry the bottomry bond, and in a foreign language also a notarial translation thereof, shall be produced for the inspection and perusal of the Registrar, and a copy of the bond, or of the translation thereof, certified to be correct shall be annexed to the affidavit.
(d) In a suit of distribution of salvage the affidavit shall state the amount of the salvage money awarded or agreed to be accepted, and the name, address and description of the party holding the same.
5. Warrant may issue before affidavit by leave.- The Court or a Judge may in any case, if they or he thinks fit, allow the warrant to issue, although the affidavit in rule 4 mentioned may not contain all the required particulars, and in a suit of wages the Court or Judge may also waive the service of the notice, and in a suit of bottomry the production of the bond.
6. Suit in rem. When service not required.- In suits in rem no service of writ or warrant shall be required when the attorney of the defendant waives service and undertake in writing to appear and to give security or to pay money into Court in lieu of security.
7. Attorney not entering appearance.- An attorney not entering appearance or giving security or paying money into Court in lieu of security in a suit in rem in pursuance of his written undertaking so to do shall be liable at attachment.
8. Service. By whom made. – Every writ, warrant and possess shall be served by the Marshal or his substitute. Every warrant shall be returned to the Registry within six days from the date thereof.
9. Service how effected.- In suits in rem service of summons or warrant against ship, freight or cargo on board, is to be effected by nailing or affixing the original writ or warrant for a short time on the main mast or on the single mast of the vessel and by taking off the process, leaving a true copy of it nailed or affixed in its place.
10. Service how affected on cargo landed. _ If the cargo has been landed or transshipped, service of the writ or warrant to arrest the cargo and freight shall be effected by placing the writ of summons or warrant for a short time on the cargo and by, on taking off the process, leaving a true copy upon it.
11. Service on cargo in custody of third party. – If the cargo be in the custody of a person who will not permit access to it, service of the writ or warrant may be made upon the custodian.
12. Intervening in suits in rem. – In a suit in rem any person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the property under arrest or in the fund in the Registry.
13. Suits in rem by default. – After the expiration of 12 days from the return of a warrant if no appearance shall have been entered in the suit, the attorney for the plaintiff may cause the suit to be sent down for hearing.
14. Judgment for the claim if well founded. – If when the suit comes before the Court, the Judge is satisfied that the plaintiff’s claim is well founded, he may pronounce for the claim and may order the property to be sold with or without previous notice and the proceeds paid into the Registry or may make such order in the premises as he shall think just.
15. Entry of appearance. – An attorney desiring to enter an appearance in any suit, shall file in the Registry a praecipe, a copy of which shall have been previously served on the adverse attorney.
16. Contents of praecipe. – The praecipe shall contain the name of the attorney and an address in Calcutta at which it shall be sufficient to leave all instruments and documents in the suit.
17. Security. – Where security is to be given in the Registry, it shall be given according to the rules and practice of the Court as to security in the case of an attachment before judgment in an ordinary Civil suit.
18. Release. – Property arrested by warrant shall only be released under the authority of an instrument issued by the Registrar, to be called a “release”.
19. Release before appearance entered on praecipe.- An attorney at whose instance any property has been arrested may, before an appearance has been entered, obtain the release thereof by filing a praecipe to withdraw the warrant.
20. On payment into Registry release of property. – An attorney may obtain the release of any property by paying into the Registry the sum in which the suit has been instituted.
21. Release of cargo arrested for freight, on payment. – Cargo arrested for the freight only, may be released by an order of a Judge in Chambers upon proof by affidavit of the value of the freight and by paying the amount of the freight into the Registry.
22. Value of property under arrest in salvage suit.- In a suit of salvage the value of the property under arrest shall be agreed to or proved by affidavit to the satisfaction of a Judge in Chambers before the property is released.
23. On security or payment into Registry property arrested released.- Where security shall have been given in the sum in which the suit has been instituted or such sum shall have been paid into the Registry, and if the suit be one of salvage the value of the property arrested shall have been proved to the satisfaction of a Judge in Chambers, an attorney shall be entitled to a release for the same unless there be a Caveat against the release thereof outstanding in the “Caveat Release Book”.
24. Release by Marshal on lodging praecipe with release.- The release, when obtained shall be left with a praecipe in the office of the Marshal by the attorney [or Advocate on record] taking out the same, who shall also at the same time pay all costs, charges and expenses attending the care and custody of the property whilst under arrest [ as prescribed in the schedule] and the Marshal shall thereupon release the property.
25. Caveat against release.- Attorney in a suit desiring to prevent the release of any property under arrest, shall file in the Registry a praecipe, and thereupon a Caveat against the release of the property shall be entered in a book to be kept in the Registry called the “Caveat Release Book”.
26. Penalty for delaying release.- A party delaying the release of any property by the entry of a Caveat shall be liable to be condemned in cost and damages, unless he shall show, to the satisfaction of the Court or a Judge, good and sufficient reason for having so done.
27. Caveat against arrest warrant.- The party desiring to prevent the arrest of any property may cause a Caveat against the issue of a warrant for the arrest thereof to be entered in the Registry.
28. Caveat Warrant Book.- For this purpose he shall cause to be filed in the Registry, a notice, signed by himself or his attorney, undertaking to enter an appearance in any suit that may be instituted against the said property, and to give security in such suit in a sum not exceeding an amount to be stated in the notice, or to pay such sum into the Registry, and a Caveat against the issue of a warrant for the property thereupon be entered in a book to be kept in the Registry called the “Caveat Warrant Book”.
29. Search for Caveat before issue of Arrest Warrant.- Before issuing a warrant for the arrest of the property, the Registrar shall ascertain whether or not any Caveat has been entered against the issue of a warrant for the arrest thereof.
30. Service of plaint on party entering Caveat.- An attorney instituting a suit against any property in respect of which a Caveat has been entered in the Caveat Warrant Book shall forthwith serve a copy of the plaint upon the party on whose behalf the Caveat has been entered or upon his attorney.
31. Security.- Within three days from the service of a copy of the plaint the party on whose behalf the Caveat has been entered shall, if the sum in which the suit has been instituted does not exceed the amount for which he has undertaken, give security in the sum in which the suit has been instituted or pay the same into the Registry.
32. On default, suit may proceed. – After the expiration of twelve days from the service of a copy of the plaint, if the party on whose behalf the Caveat has been entered shall not have given security in such sum, or paid the same into the Registry, the plaintiff’s attorney may proceed with the suit by default, and have it heard: Provided that the Court may, on good cause shown and on such terms as to payment of costs as it may impose, extend the time, for giving security or paying the money into the Registry.
33. Judgment for claim, enforcement of payment.- If when the suit comes before the Court it is satisfied that the claim is well founded, it may pronounce for the amount which appears to be due, and may enforce the payment thereof by order and attachment against the party on whose behalf the Caveat has been entered, and by the arrest of the property if it then be or thereafter come within the jurisdiction of the Court.
34. Notwithstanding Caveat property may be arrested. – The preceding rules shall not prevent an attorney from taking out a warrant for the arrest of any property, notwithstanding the entry of a Caveat in the “Caveat Warrant Book”, but the party at whose instance any property in respect of which a Caveat is entered shall be liable to be condemned in costs and damage, unless he shall show, to the satisfaction of the Court, good and sufficient reason for having so done.
35. Sales by order of the Court.- Every sale under the decree of the Court shall, unless the Judge shall otherwise order, be made by the Marshal in like manner as a sale of moveable property in execution of a decree in any ordinary Civil suit.
36. Procedure by Marshal on sale of property.- The Marshal shall pay into Court the gross proceeds of sale of any property sold by him, and shall at the same time bring into the Registry the Account of sale, with vouchers in support thereof, for taxation by the Taxing Officer of the Court, to whom the same shall be transmitted by the Registrar for that purpose.
37. Audience before Taxing Office.- Any person interested in the proceeds, may be heard before the Taxing Officer on the taxation of the account of expenses and an objection to the taxation shall be heard in the same manner as an objection to the taxation of any attorney’s bill of costs.
38. Payment of monies.- All money paid into Court shall be paid to the Registrar.
39. Payment out of monies. – Money paid into Court shall not be paid out of Court, except in pursuance of an order of the Court or a Judge.
40. Security for latent demands.- Security for latent demands shall not, unless the Judge shall otherwise order, be required on the payment of money out of Court.
41. Notice against payment. Caveat payment Book.- An attorney desiring to prevent the payment of monies out of the Registry shall file a notice and thereupon a Caveat shall be entered in a Book, to be kept in the Registry called the “Caveat Payment Book”.
42. Applications.- Applications may be made either in Court or to a Judge in Chambers.
43. Praecipe.- Forms of praecipe required to be filed in the Registry or the Marshal’s office may be obtained on application in the Registry. They may be varied or altered by a Judge at his discretion.
44. Signature to praecipe.- Every praecipe shall be signed either by the party or by his attorney.
45. Improperly filled up praecipe.- If a praecipe be not properly filled up, the Registrar or the Marshal, as the case may be, may refuse to receive the same or to act thereon.
46. Caveats to be in force for six months.- A caveat, whether against the issue of a warrant, the release of property, or the payment of money, out of the Registry, shall not remain in force for more than six months from the day of the date thereof.
47. Withdrawal of Caveat.- A Caveat may be withdrawn by the party on whose behalf it has been entered or by his attorney; but the praecipe to lead the withdrawal thereof shall, save by permission of the Registrar, be signed by the person who signed the praecipe to lead the entry of the Caveat.
48. Application to overrule a Caveat.- Application may be made to the Court on motion or to a Judge in Chambers, by summons to overrule any Caveat.
49. Fees.- The fees of Court and the fees to be allowed to the attorneys shall be those set out in the tables of fees sanctioned for proceedings under the Original Civil Jurisdiction of the High Court. [ The fees to be paid to the Marshal shall be these set forth in the schedule hereto.
Provided, however, that where the Marshal is a whole time employee of the High Court or Government, all payments to either in terms of this schedule or otherwise, save and except his out-of-pocket expenses and such other sum as may specifically be sanctioned by the Court for appropriation by the Marshal by way of his individual fee for any special service rendered, shall be credited to the Account of the Government of West Bengal].
50. Forms of Admiralty Division to be followed.- The forms used in the Admiralty Division of the Supreme Court in England under the Rules of the Supreme Court, in 1883, shall be followed as nearly as the circumstances of each case will allow.
51. Where other provision not made rules and practice of ordinary original civil jurisdiction to apply.- Where no other provision is made by these rules proceedings in suits brought in the Court in the exercise of its jurisdiction under the Colonial Courts of Admiralty Act, 1890, shall be regulated by the rules and practice of the Court in suits brought in it in the exercise of its Ordinary Original Civil Jurisdiction.
Special Summary Procedure
52. Summary procedure by consent.- The parties to any suit may have the same dealt with, heard and determined in accordance with the following special rules upon filing in the Registry a consent signed by the parties or their attorneys duly authorised in that behalf in the form given below.
53. Application to fix hearing and give directions. – After such consent has been filed application may be made by any party to the Judge in Chambers to appoint a day for the hearing, and to give directions.
54. No pleadings.- There shall be no pleading beyond a statement of claim verified by affidavit, but if there be a counter-claim notice thereof shall be given in writing before such consent as aforesaid is signed.
55. List of documents, Inspection. – List of documents shall be exchanged and mutual inspection of documents given at or before a time appointed by the Judge on the hearing of the application aforesaid.
56. Hearing of application.- At the hearing of the application aforesaid, unless it shall sufficiently appear from the statement of claim or otherwise in writing the plaintiff shall specify the cause or causes of action in respect of which the suit is brought, and, if practicable, the amount actually claimed, and the defendant shall specify the grounds of defence on which he relies and in salvage claims, the plaintiff and defendant respectively shall at the same time, or within such time as the Judge shall direct, state the values of their property and, if required, by affidavit. In the case of a counter-claim the cause or causes of action and the claim therein and grounds of defence thereto shall be similarly stated.
57. Evidence.- The Judge shall be at liberty to receive, call for, and act upon, such evidence, documentary or otherwise, whether legally admissible or not, as he may think fit.
58. Costs.- If in any suit the sum awarded, or for which judgment is given, exceeds the sum, if any tendered, the Judge may nevertheless exercise his discretion as to how and by whom the costs shall be borne.
59. Appeal.- There shall be no appeal from any order or judgment of the Judge except on a question of law, and then only by his leave.
60. In other respects ordinary rules apply.- In other respects the ordinary rules and practice shall apply so far as may be necessary. Notwithstanding anything in these special rules, the Judge may, if he thinks fit, make such orders as he might make under the ordinary rules and practice.
61. Supersession of former rules.- The foregoing rules shall apply to suits brought in the Court in the exercise of its Admiralty Jurisdiction in supersession of all former rules.
These Rules shall come into operation on the 1st day of June 1912.
By order of the Full Court.
Registrar, High Court, Original Side.