HALLIBURTON OFFSHORE SERVICES INC & ANR. v. PRINCIPAL OFFICER OF MERCANTILE MARINE DEPARTMENT & ORS.

A (a) The name of the Ship to be inserted should be the existing foreign name unless a charge ofname has ~een authorized by the Director General of Shipping. (b) If this ship has not been surveyed for the purpose, the Consul must insert the description as fully and accurately as he can, stating how he has procured it, *Strike out inapplicable works. Here insert the date six months from the date of issue of this certificate. " The above requisites mentioned in Form No.14, like measurements, B gross tonnage, spaces etc. could be given only if the ship is fully built.

42. After applying for registration, Section 27(1) of the M.S. Act and Rule 5 of the Merchant Shipping (Registration of Indian Ships) Rules, 1960, requires the owner of the Indian ship to cause such ship to be surveyed by a surveyor and the tonnage of the ship ascertained in the prescribed manner. Form No.17 deals with certificate of survey. The details as c stated in Form No.17 and the particulars of tonnage etc. coupled with other particulars to be supplied by the builders, owners or engineers also show that before applying for registration, the ship must be fully built. If we compare the requisites mentioned in Form 1 which deals with "Certificate oflndian registry" (In terms of Section 34 of the Act) with the requisites mentioned in Form No.14 (PCOR), we find that the requisites for both PCOR and final registry of the ship are almost the same and that the ship is mandatorily required to be fully built.

43. I am not impressed with the contention that Section 40 is a stand-alone provision. Title/ownership is very vital for Registration of Indian Ships. As discussed earlier, 'ownership' is central to the scheme for registration under the M.S.Act. For registration ofa vessel the ownership is the first thing to.be determined. In case of a second hand acquisition of a vessel by the intended Indian owner for registration in India (gaining Indian Flag), an 'Instrument of sale' of the vessel (as per Section 30 of Act) executed by the seller in favour of the Indian buyer and acceptance of the same as per applicable Rules of the losing Flag, is required. As per F Rule 12, the authorised officer on production of satisfactory proof of ownership grant the provisional certificate oflndian registry, which means that the ownership of the ship is to be satisfactorily established. Therefore, in order to apply for PCOR, as per the scheme of the Act, there is no concept of prospective ownership. Equally, for obtaining PCOR, there is G no question of'partially built' or 'almost built' ship. In my view, the statiltory mandates for permanent registry, under Section 34 of the Act are to be satisfied even for obtaining the provisional certificate of registry under Section 40. The language ofSection 40 makes it clear that the Provisional certificate ofregistry issued "shall have the effect ofa certificate ofregistry until the expiration of six months from its date .....•" Since the PCOR H shall have the same effect as that of certificate of registry issued under

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OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

Section 34 of the Act, in my view, the essentials that are required for A permanent registration (in case of a new ship) like (i) application for registry; (ii) builder's certificate; and (iii) survey and measurement and all other requirements as stipulated under Sections 23 to 32 are to be strictly complied with. I say so even more firmly, in the light of important link established between the ship and the flag state, by virtue of registration. B

44. Let us take a hypothetical situation to analyse the effect of granting a PCOR to a partially built ship or to a ship whose ownership is either disputed or not clearly established by a registered title deed. After a ship obtains a PCOR, the ship becomes entitled to all the benefits ofbeing an Indian Ship. The Indian Government gives preference to Indian Ships in· forming contracts, either for moving cargo on domestic routes, or for c carrying out other marine-related activities in its territorial waters, contiguous zone, or Exclusive Economic Zone (EEZ). While inviting such tenders, preference is given to Indian Ships. If the ship is not completely built, then execution of the tender becomes difficult. In grant of PCOR, the legislature could not have intended such consequences.

45Copy pinpoint45. The provisions relating to registration and safety of the ships goes to the very heart of the statute and failure on part of the authorities to strictly comply with the same may lead to disastrous consequences, gravely affecting national interest. Sub-section (2) of Section 40 of the Act lays down one such mandate which needs to be strictly complied with. Ifwe consider Section 40 and sub-section (2) of Section 40, objectively, six months' time prescribed as a validity period for PCOR, is only to ensure that a ship in abroad, becoming Indian ship is able to travel and get itself permanently registered at the port of registry in India. Six months' time is accepted as a reasonable period for bringing the ship to the port of registry in India and complete other formalities of obtaining various compliance certificates requisite for final registration. This is made explicit by the second part of sub-section (2) of Section 40 which provides, " ..... or until the arrival of the ship at a port where there is a registrar whichever first happens, and on .either of those events happening shall cease to have effect". Ifwe consider Section 40 and sub-section (2) of Section 40, the time of six months is stipulated only to enable the ships in abroad becoming Indian ships to travel on the high seas with the Indian registration/Indian G flag unto complete statutory certificates requisite for final registration are obtained, though in that course, the vessel may voyage to ports of other countries.

46Copy pinpoint46. As per sub-section (2) of Section 40, the provisional certificate issued under Section 40 shall have the effect of a final certificate of registry H

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A and it shall cease to have effect on expiration of six months from its date or on the arrival of the ship at the port. The clause says nothing more; there is no provision for renewal or extension of the provisional certificate contained either in Section 40 itselfor in any other provision of the Act. The necessary corollary is that the legislature intended to limit the validity of the provisional certificate of registration, obtained under Section 40 to B six months or till the time the ship arrives at the port. It seems more logical in the light of purpose of issuing a provisional certificate of registration, which is to enable an Indian national to bring the ship buil• t abroad to the Indian port for completion of other requisites of obtaining statutory certificates fo~ final registration. · c 47. The intent of the legislature is clear and unambiguous in limiting the validity ofprovisional certificate ofregistration and not providing any provision for renewal of the certificate. The only remedy which can probably be resorted to in case of expiration ofprovisional certificate is applying for a fresh provisional certificate of registry which may be considered by the authorities independently on its own merits. If the phrase, "shall cease to D have effecf' in sub-section (2) of Section 4o is not interpreted in its letter and spirit and ifthe provisional certificate is renewed again and again, the provisional certificate of registration will continue to have the effect of final certificate of registration for an indefinite period. This will frustrate the very purpose of granting a PCOR. I, thus hold that the Provisional E certificate of registry cannot be renewed nor its validity can be extended beyond six months.

48Copy pinpoint48. I sum up my conclusions as under:- • For grant of PCOR to a ship becoming Indian ship abroad, all the requisite conditions for obtaining final registration must be F satisfied viz.:(i) satisfaction of ownership of ship in terms of Section 21 of the M.S. Act; (ii) the ship must be fully built and sea-going so that it can reach the Indian port for obtaining certificate of final registry and (iii) satisfaction of other requirements contained in Sections 23 to 32 of the M.S. Act. G • As per sub-section (2) of Section 40 of the M.S. Act, the Provisional certificate of registry will cease to have effect after six months of the date ofissuance oruntil the arrival of the-ship at a port where there is a registrar whichever first happens. The Provisional certificate of registry cannot be renewed nor its validity can be extended beyond six months. Ankit Gyan Matter to be considered on merits.