In this Part, the word "coasts" includes the coasts of reeks and tidal rivers.
Section 358 - Shipping casualties and report thereof
(1) For the purpose of investigations and inquiries under this Part, a shipping casualty shall be deemed to occur when--
(a) on or near the coasts of India, any ship is lost, abandoned, stranded or materially damaged;
(b) on or near the coasts of India, any ship causes loss or material damage to any other ship;
(c) any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coasts of India;
(d) in any place, any such loss, abandonment, stranding, material damage or casualty as abovementioned occurs to or on board any Indian ship, and any competent witness thereof is found in India;
(e) any Indian ship is lost or is supposed to have been lost and any evidence is obtainable in India as to the circumstances under which she proceeded to sea or was last heard of.
(2) In the cases mentioned in clauses (a), (b) and (c) of sub-section (1), the master, pilot, harbour master or other person in charge of the ship, or (where two ships are concerned) in charge of each ship at the time of the shipping casualty, and
in the cases mentioned in clause (d) of sub-section (1), where the master of the ship concerned or (except in the case of a loss) where the ship concerned proceeds to any place in India from the place where the shipping casualty has occurred, the master of the ship,
shall, on arriving in India, give immediate notice of the shipping casualty to the officer appointed in this behalf by the Central Government.
Section 359 - Report of shipping casualties to Central Government
(1) Whenever any such officer as is referred to in sub-section (2) of section 358 receives credible information that a shipping casualty has. occurred, he shall forthwith report in writing the information to the Central Government; and may proceed to make a preliminary inquiry into the casualty.
(2) An officer making a preliminary inquiry under sub-section (1) shall send a report thereof to the Central Government or such other authority as may be appointed by it in this behalf.
Section 360 - Application to court for formal investigation
The officer appointed under sub-section (2) of section 358, whether he has made a preliminary inquiry or not, may, and, where the Central Government so directs, shall make an application to a court empowered under section 361, requesting it to make a formal investigation into any shipping casualty, and the court shall thereupon make such investigation.
Section 361 - Court empowered to make formal investigation
1[A Judicial Magistrate of the first class] specially empowered in this behalf by the Central Government and a2[Metropolitan Magistrate] shall have jurisdiction to make formal investigation into shipping casualties under this Part.
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1. Substituted for the words "A Magistrate of the first class" by the Merchant Shipping (Amdt.) Act, 1983 (12 of 1983)--section 17 and the Schedule Item 11 (18-5-1983).
2. Substituted by the Merchant Shipping (Amendment) Act, 1983 (12 of 1983)--section 17 and the Schedule Item 11 (18-5-1983). for the words "presidency Magistrate".
Section 362 - Power of court of investigation to inquire into charges against master, mates and engineers
(1) Any court making a formal investigation into a shipping casualty may inquire into any charge of in competency or misconduct arising, in the course of the investigation, against any master, mate or engineer, as well as into any charge of a wrongful act or default on his part causing the shipping casualty.
(2) In every case in which any such charge, whether of in competency or misconduct, or of a wrongful act or default, as aforesaid, arises against any master, mate or engineer, in the course of an investigation, the court shall, before the commencement of the inquiry, cause to be furnished to him a statement of the case upon which the inquiry has been directed.
Section 363 - Power of Central Government to direct inquiry into charges of in competency or misconduct
(1) If the Central Government has reason to believe that there are grounds for charging any master, mate or engineer with in competency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, the Central Government.--
(a) if the master, mate or engineer holds a certificate under this Act, in any case;
(b) if the master, mate or engineer holds a certificate under the law of any country outside India, in any case where the in competency or misconduct has occurred on board an Indian ship;
may transmit a statement of the case to any court having jurisdiction under section 361, which is at or nearest to the place where it may be convenient for the parties and witnesses to attend,and may direct that court to make an inquiry into that charge.
(2) Before commencing the inquiry, the court shall cause the master, mate or engineer so charged to be furnished with a copy of the statement transmitted by the Central Government.
Section 364 - Opportunity to be given to person to make defence
For the purpose of any inquiry under this Part into any charge against a master, mate or engineer, the court may summon him to appear, and shall give him an opportunity of making a defence either in personor otherwise.
Section 365 - Power of court as to evidence and regulation of proceedings
1 [(1)] For the purpose of any investigation or inquiry under this Part, the court making the investigation or inquiry shall in respect of compelling the attendance and examination of witnesses and the production of documents and the regulation of the proceedings, have the same powers as are exercisable by that court in the exercise of its criminal jurisdiction.
1 [(2) Subject to any rules made in this behalf by the Central Government, the court making an investigation or inquiry under this Part may, if it thinks fit, order the payment, on the part of that Government, of the reasonable expenses of any witness attending for the purposes of such investigation or inquiry before such court.]
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1. Section 365 renumbered as sub-section (1) and sub-section (2) inserted by Merchant Shipping (Amendment) Act (41 of 1984), section 10 (15-7-85).
Section 366 - Assessors
(1) A court making a formal investigation shall constitute as its assessors not less than two and not more than four persons, of whom one shall be a person conversant with maritime affairs and the other or others shall be conversant with either maritime or mercantile affairs :
Provided that, where the investigation involves, or appears likely to involve, any question as to the cancellation or suspension of the certificate of a master, mate or engineer, two of the assessors shall be persons having also experience in the merchant service.
(2) The assessors shall attend during the investigation and deliver their opinions in writing, to be recorded on the proceedings, but the exercise of all powers conferred on the court by this Part or any other law for the time being in force shall rest with the court.
(3) The assessors shall he chosen from a list to be prepared from time to time by the Central Government.
Section 367 - Power to arrest witnesses and enter ships
If any court making an investigation or inquiry under this Part thinks it necessary for obtaining evidence that any person should be arrested, it may issue a warrant for his arrest, and may, for the purpose of effecting the arrest, authorise any officer, subject, nevertheless, to any general or special instructions from the Central Government, to enter any vessel, and any officer so authorised may, for the purpose of enforcing the entry, call to his aid any officer of police or customs or any other person.
Section 368 - Power to commit for trial and bind over witnesses
Whenever, in the course of any such investigation or inquiry, it appears that any person has committed in India an offence punishable under any law in force in India, the court making the investigation or inquiry may (subject to such rules consistent with this Act as the High Court may from time to time make) cause him to be arrested, or commit him or hold him to bail to take his trial before the proper court, and may bind over any person to give evidence at the trial, and may, for the purposes of this section, exercise all its powers as a criminal court.
Section 359 - Report by court to Central Government
(1) The court shall, in the case of all investigations or inquiries under this Part, transmit to the Central Government a full report of . the conclusions at which it has arrived together with the evidence.
(2) Where the investigation or inquiry affects a master or an officer of a ship other than an Indian ship who holds a certificate under the law of any country outside India, the Central Government may transmit a copy of the report together with the evidence to the proper authority in that country.
1 [(3) The Central Government shall, on receipt of the investigation report from the court, cause it to be published in the Official Gazette.']
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1. Inserted by the Merchant shipping (Amendment) Act, 1998 w.e.f. 26-09-1997.
Section 370 - Powers of court as to certificates granted by Central Government
(1) A certificate of a master, mate or engineer which has been granted by the Central Government under this Act may be cancelled or suspended--
(a) by a court holding a formal investigation into a shipping casualty under this Part if the court finds that the loss, stranding or abandonment of, or damage to, any ship, or loss of life, has been caused by the wrongful act or default of such master, mate or engineer;
(b) by a court holding an inquiry under this Part into the conduct of the master, mate or engineer if the court finds that he is incompetent or has been guilty of any gross act of drunkenness, tyranny or other misconduct or in a case of collision has failed to render such assistance or give such information as is required by section 348.
(2) At the conclusion of the investigation or inquiry, or as soon thereafter as possible, the court shall state in open sitting the decision to which it may have come with respect to the cancellation or suspension of any certificate and, if suspension is ordered, the period for which the certificate is suspended.
(3) Where the court cancels or suspends a certificate, the court shall forward it to the Central Government together with the report which it is required by this Part to transmit to it.
Section 371 - Power of court to censure master, mate or engineer
Where it appears to the court holding an investigation or inquiry that having regard to the circumstances of the case an order of cancellation or suspension under section 370 is not justified, the court may pass an order censuring the master, mate or engineer in respect of his conduct.
Section 372 - Power of court to remove master and appoint new master
(1) A1[Judicial Magistrate of the first class] specially empowered in this behalf by the Central Government or a2[Metropolitan Magistrate] may remove the master of any ship within his jurisdiction if the removal is shown to his satisfaction to be necessary,
(2) The removal may be made upon the application of the owner of any ship or his agent, or of the consignee of the ship or of any certificated officer or of one-third or more of the crew of the ship.
(3) The3[Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be; may appoint a new master instead of the one removed, but where the owner, agent or consignee of the ship is within his jurisdiction, such an appointment shall not be made without the consent of that owner, agent or consignee.
(4) The3[Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be] may also make such order and require such security in respect of the cost of the matter as he thinks fit.
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1. Substituted for the words "Magistrate of the first class" by the Merchant Shipping (Amdt.) Act, 1983(12 of 1983),Section 17 and the Schedule, Item 12(a) (18-5-l983).
2. Substituted for the words "presidency Magistrate" by the Merchant Shipping (Amdt.) Act, 1983(12 of 1983),Section 17 and the Schedule, Item 12(a) (18-5-l983), Item 12 (b).
3. Substituted for the word "Magistrate" by the Merchant Shipping (Amdt.) Act, 1983(12 of 1983),Section 17 and the Schedule, Item 12(a) (18-5-l983), by Item 12 (c).
Section 373 to 376 - Marine Board
Section 373 - Convening of Marine Boards outside India
Whenever--
(a) a complaint is made to an Indian consular officer or a senior officer of any ship of the Indian Navy in the vicinity (hereinafter referred to as naval officer) by the master or any member of the crew of an Indian ship and such complaint appears to the Indian consular officer or naval officer, as the case may be, to require immediate investigation; or
(b) the interest of the owner of an Indian ship or of the cargo thereof appears to an Indian consular officer or naval officer, as the case may be, to require it; or
(c) an allegation of in competency or misconduct is made to an Indian consular officer or a naval officer against the master or any of the officers of an Indian ship; or
(d) any Indian ship is lost, abandoned or stranded at or near the place where an Indian consular officer or naval officer may be or whenever the crew or part of the crew of any Indian ship which has been lost, abandoned or stranded arrives at that place; or
(e) any loss of life or any serious injury to any person has occurred on board an Indian ship at or near that place;
the Indian consular officer or the naval officer, as the case may be, may, in his discretion, convene a Board of Marine Inquiry to investigate the said complaint or allegation or the matter affecting the said interest or the cause of the loss, abandonment or the stranding of the ship or of the loss of life or of the injury to the person.
Section 374 - Constitution and procedure of Marine Board
(1) A Marine Board shall consist of the officer convening the Board and two other members.
(2) The two other members of the Marine Board shall be appointed by the officer convening the Marine Board from among persons conversant with maritime or mercantile affairs.
(3) The officer convening the Marine Board shall be presiding officer thereof.
(4) A Marine Board shall, subject to the provisions of this Act, have power to regulate its a own procedure.
Section 375 - Decisions of Marine Board to be by majority
Where there is a difference of opinion among members of the Marine Board, the decision of the majority of the members shall be the decision of the Board.
Section 376 - Powers of Marine Board
(1) A Marine Board may, after investigating and hearing the case--
(a) if it is of opinion that the safety of an Indian ship or her cargo or crew or the interest of the owner of an Indian ship or of the owner of the cargo thereof requires it, remove the master and appoint another qualified person to act in his stead;
(b) if it is of opinion that any master or officer of an Indian ship is incompetent or has been guilty of any act of misconduct or in a case of collision has failed to render such assistance or give such information as is required by section 348 or that loss, abandonment or stranding of or serious damage to any ship, or loss of life or serious injury to any person has been caused by the wrongful act or default of any master or ship's officer of an Indian ship, suspend the certificate of that master or ship's officer for a stated period :
Provided that no such certificate shall be suspended unless the master or officer concerned has been furnished with a statement of the case in respect of which investigation has been ordered and he has also been given an opportunity of making a defence either in person of otherwise;
(c) discharge a seaman from an Indian ship and order the wages of any seaman so discharged or any part of those wages to be forfeited;
(d) decide any questions as to wages, fines or forfeitures arising between any of the parties to the proceedings;
(e) direct that any or all of the costs incurred by the master or owner of an Indian ship or on the maintenance of a seaman or apprentice while in prison outside India shall be paid out of and deducted from, the wages of that seaman or apprentice, whether earned or subsequently earned;
(f) if it considers such a step expedient, order a survey to be made of any Indian ship which is the subject of investigation;
(g) order the costs of proceedings before it or any part of those costs, to be paid by any of the parties thereto, and may order any person making a frivolous or unjustified complaint to pay compensation for any loss or delay caused thereby; and any costs or compensation so ordered to be paid by any person shall be paid by that person accordingly and may be recovered in the same manner in which wages of seaman are recoverable or may be deducted from the wages due to that person.
(2) All orders made by a Marine Board shall, whenever practicable, be entered in the official log book of the ship which is the subject of investigation or on board which the casualty or occurrence or conduct investigaged took place, and be signed by the presiding officer of the Board.
Section 377 to 381 - Miscellaneous provisions relating to cancellation and suspension of certificates
Section 377 - Powers of Central Government to cancel, suspend, etc., certificate of master, mate or engineer
(1) Any certificate which has been granted by the Central Government under this Act to any master, mate or engineer, may be cancelled or suspended for any specified period, by the Central Government in the following cases, that is to say,--
(a) if, on any investigation or inquiry made by any court, tribunal or other authority for the time being authorised by the legislative authority in any country outside India, the court, tribunal or other authority reports that the master, male or engineer is incompetent or has been guilty of any gross act of misconduct, drunkenness or tyranny, or in a case of collision has failed to render assistance, or to given such information as is referred to in section 348, or that the loss, stranding or abandonment of, or damage to, any ship or loss of life has been caused by his wrongful act or default;
(b) if the master, mate or engineer is proved to have been convicted--
(i) of any offence under this Act or of any non-bailable offence committed under any other law for the time being in force in India; or
(ii) of an offence committed outside India, which, if committed in India, would be a non-bailable offence;
(c) if (in the case of a master of an Indian ship) he has been superseded by the order of any court of competent jurisdiction in India or outside India.
1 [(1A) Any certificate within the meaning of clause (b) of section 87-A may be cancelled or suspended for any specified period by the Central Government if the person to whom such certificate has been granted has contravened the provisions of sub-section (1) or sub-section (2) of section 87-B:
Provided that no order under this sub-section shall be passed by the Central Government unless the person concerned has been given an opportunity of making a representation against the order proposed.]
(2) The Central Government may at any time, if it thinks the justice of the case so requires,--
(a) revoke any order of cancellation or suspension made by it under 2 [sub-section (1) or sub-section (1A) or] set aside any order of cancellation or suspension made by a court under section 370 or any order of suspension made by a Marine Board under clause (b) of sub-section (1) of section 376 or any order of censure made by a court under section371; or
(b) shorten or lengthen the period of suspension ordered by it under sub-section (1) or by a court under section 370 or by a Marine Board under clause (b) of sub-section (1) of section 376 or cancel a certificate suspended by a Marine Board under that clause; or
(c) grant without examination a new certificate of the same or any lower grade in the case of any certificate cancelled or suspended by it under 2 [sub-section (1) or sub-section (1A) or] by a court under section 370 or any certificate suspended by a Marine Board under clause (b) of sub-section (1) of section 376:
Provided that no order under clause (b) either lengthening the period of suspension of or cancelling a certificate shall be passed by the Central Government unless the person concerned has been given an opportunity of making a representation against the order proposed.
(3) A certificate granted under clause (c) of sub-section (2) shall have the same effect as if it had been granted after examination.
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1. Inserted by the Merchant Shipping (Amendment) Act, 1979 (20 of 1979),Section 3(a) (4-5-1979).
2. Substituted for the words, brackets and figure "sub-section (1) or" by the Merchant Shipping (Amendment) Act, 1979 (20 of 1979),Section 3(a) (4-5-1979),Section 3(b).
Section 378 - Delivery of Indian certificate cancelled or suspended
A master or ship's officer who is the holder of a certificate issued under this Act shall, if such certificate has been cancelled or suspended by the Central Government or by a court or suspended by a Marine Board, deliver his certificate to the Central Government, court or Marine Board on demand or if it is not so demanded by the Central Government or court or Board, to the Director-General.
Section 379 - Effect of cancellation or suspension of certificate
The cancellation or suspension of a certificate by the Central Government or by a court or the suspension of a certificate by a
Marine Board shall--
(a) if the certificate was issued under this Act, be effective everywhere and in respect of all ships; and
(b) if the certificate was issued outside India be effective--
(i) within India and the territorial waters of India, in respect of all ships; and
(ii) outside India, in respect of Indian ships only.
Section 380 - Suspended certificate not to be endorsed
If the certificate of a master or ship's officer is suspended under this Part by the Central Government or by a court or a Marine Board, no endorsement shall be made to that effect on the said certificate.
Section 381 - Power of Central Government to cancel or suspend other certificates
Notwithstanding anything contained in this Act, the Central Government may, at any time, without any formal investigation or inquiry, cancel or suspend any certificate granted by it under this. Act, other than a certificate granted to a master, mate or engineer, if, in its opinion, the holder is, or has become, unfit to act in the grade for which the certificate was granted to him:
Provided that no order under this section shall be passed by the Central Government unless the person concerned has been given an opportunity of making a representation against the order proposed.
Section 382 - Rehearing
Re-Hearing Of Cases
(1) Whenever an investigation or inquiry has been held by a court or by a Marine Board under this Part, the Central Government may order the case to be reheard either generally or as to any part thereof, and shall so order--
(a) if new and important evidence which could not be produced at the investigation has discovered, or
(b) if for any other reason there has, in its opinion, been a miscarriage of justice.
(2) The Central Government may order the case to be reheard by the court or Marine Board as the case may be consisting of the same members or other members as the Central Government may deem fit.
Section 383 to 386 - Courts of survey
Section 383 - Constitution of court of survey
(1) A court of survey for a port shall consist of a Judge sitting with two assessors.
(2) The Judge shall be a District Judge, Judge of a court of small causes,1[Metropolitan Magistrate, Judicial Magistrate of the first class] or other fit person appointed in this behalf by the Central Government either generally or for any specified case.
(3) The assessors shall be persons of nautical, engineering pr other special skill or experience.
(4) Subject to the provisions of Part IX as regards ships other than Indian ships, one of the assessors shall be appointed by the Central Government either generally or in each case and the other shall be summoned by the. Judge in the manner prescribed out of a list of persons from time to time prepared for the purpose by the Central Government or, if there is no such list or if it is impracticable to procure the attendance of any person named in such list, shall be appointed by the Judge.
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1. Substituted for the words "presidency Magistrate, Magistrate of the first class" by Merchant Shipping (Amendment) Act, 1983 (12 of 1983),Section 17 and Schedule , Item 13 - (18-5-1983).
Section 384 - Appeal from surveyor to court of survey
(1) If a surveyor authorised to inspect a ship--
(a) makes a statement in his report of inspection with which the owner or his agent or the master of the ship is dissatisfied, or
(b) gives notice under this Act of any defect in any ship; or
(c) declines to give any certificate under this Act,
the owner, master or agent, as the case may be, may, subject to the provisions of sub-section (2) and of section 387, appeal to a court of survey.
(2) Whenever a surveyor inspects any ship, he shall, if the owner, muster or agent of the ship so requires, be accompanied on the inspection by some person nominated by the owner, master or agent, as the case may be, and if the person so nominated agrees with the surveyor as to the statement made or the notice given by the surveyor or the refusal by the surveyor to give a certificate, there shall be no appeal to a court of survey from that statement, notice or refusal.
Section 385 - Powers and procedure of court of survey
(1) The Judge shall on receiving notice of appeal or a reference from the Central Government immediately summon the assessors to meet forthwith in the prescribed manner.
(2) The court of survey shall hear every case in open court.
(3) The Judge may appoint any competent person to survey the ship and report thereon to the court.
(4) The Judge shall have the same powers as the Central Government has to order the ship to be released or finally detained; but unless one of the assessors concurs in an order for the detention of the ship, the ship shall be released.
(5) The owner and master of the ship and any person appointed by the owner or master and also any person appointed by the Central Government may attend any inspection or survey made in pursuance of this section.
(6) The Judge shall report the proceedings of the court in each case to the Central Government in the manner prescribed and each assessor shall either sign such report or report to the Central Government the reasons for his dissent.
Section 386 - Power to make rules
The Central Government may make rules for carrying out the purposes of this Part with respect to a court of survey and in particular, and without prejudice to the generality of the foregoing power, with respect to--
(a) the procedure of the court;
(b) the requiring, on an appeal, of security for costs and damages;
(c) the amount and application of fees; and
(d) the ascertainment, in case of dispute, of the proper amount of costs Scientific referees
Section 387 - Reference in difficult cases to scientific persons
Scientific Referees
(1) If the Central Government is of opinion that an appeal to a court of survey involves a question of construction or design or a scientific difficult or important principle, it may refer the matter to such one or more out of a list of scientific referees to be from time to time prepared by the Central Government as may appear to possess the special qualifications necessary for the particular case and may be selected by agreement between a person duly appointed by the Central Government in this behalf and the appellant, or in default of any such agreement, by the Central Government; and there upon the appeal shall be determined by the referee or referees instead of by the court of survey.
(2) The Central Government, if the appellant in any such appeal so requires and gives security to its satisfaction to pay the costs of and incidental to the reference, shall refer such appeal to a referee or referees selected as aforesaid.
(3) The referee or referees shall have the same powers as a Judge of the court of survey. Investigations into explosions or fires on board ships
Section 388 - Power to investigate causes of explosion or fire on board ship
Wherever any explosion or fire occurs on board any ship on or near the coasts of India, the Central Government may direct that an investigation into the causes of explosion or fire be made by such person or persons as it thinks fit.
Section 389 - Report to he made regarding cause of explosion or fire
The person or persons referred to in section 388 may go on board the ship on which the explosion or fire has occurred with all necessary workmen and labourers, and remove any portion of the ship, or of the machinery thereof, for the purpose of the investigation, and shall report to the Central Government or the person duly appointed by it, as the case may be, what in his or their opinion was the cause of the explosion or fire.