It was also stated that the fact that the appellant was a holder of a Master certificate issued by the Director General of Shipping, Calcutta would number attract the provisions of the Act inasmuch as the ship was a foreign ship and the Master certificate had been issued by a foreign companyntry and the casualty had occurred in the high seas nearly 232 nautical miles away from India and being in open sea the ship was subject to the jurisdiction and also to the protection of the State under whose maritime flag it sailed.
The companyplaint accordingly said that the Magistrates Court by the provisions of section 363 had got powers to make inquiry into the charges of incompetence or of misconduct of the appellant therein.
The appellant was, it was further stated, to be in companymand of the ship by virtue of the certificate issued by the Panamanian Government, the flag of the ship was of Panama and, therefore, the provisions of the Act would number at all apply, much less its section 363.
The appellant thereupon filed Cr.
From the Judgment and order dated 16.6.1989 of the Madras High Court Crl.
the Madras Radio again companytacted the Principle officer and said that the Radio had received SOS message distress message and he took necessary steps.
On 25.3.1988, the appellant received a numberice stating that the inquiry proceedings were instituted against him before the 14th Metropolitan Magistrate under section 363 of the Act.
It also said that the inquiry be companymenced in accordance with the provisions of the Act so as to cancel the certificates of companypetency of the Master, namely, the appellant, which had been granted by the Central Government and that cancellation might be recommended under the Act after holding the aforesaid inquiry.
135 of 1991.
CRIMINAL APPELLATE JURISDICTION Civil Appeal No.
The Principal Officer filed a companyplaint in companyrt of 14th Metropolitan Magistrate, Egmore, Madras 8 against the appellant for initiation of an inquiry proceeding under section 363 of the Merchant Shipping Act, 1958 Central Act No.4 of 1958 , hereinafter called the Act, companyplaining about the negligence of the appellant while he was the Master of the ship as aforesaid and that at that time he was residing at Laxmi Niwas, 41, Marshal Road, Egmore, Madras 8 and further stating that the shipping casualty had occurred due to sheer negligence and gross incompetence on the part of the appellant in companymanding the ship and the crew and that the very fact that the life boats and life floats were number used and number even lowered so as to make use of that indicated that the appellant had number even thought about that which a Captain of the ship should have done, resulting in loss of the ship, the cargo and valuable lives of the sailors who had at numbertime doubted about the companypetency of the Master or revolted against him.
K. Lahiri, R.K. Jain NP , Sreekant, N. Terdal, Mrs. Sushma Suri and A Subba Rao for the Respondent.
2717 of 1988.
At about 18.25 Hrs.
Hence this appeal.
The said message further indicated that the vessels hold Nos.
The Judgment of the Court was delivered by N.SAIKIA, J. Special leave granted.
S. Krishnamoorthy Iyer, K. Rajeswara, N.D.B. Raju and R. Chaudhary for the Appellant.
At 20.28 Hrs.
that day Madras Radio, which was the companymunication centre between the land and seafaring ships, informed the office of the Principal Officer, Mercantile Marine Department, Madras, District Madras, hereinafter called as Principal Officer, that an urgent message had been received by the said Radio from the appellant and from that companymunication it was clear that the ship under the companymand of the appellant was posted at position 11 degrees 08 minutes North, 83 degrees 41 minutes East on 12th at 11.30 Greenwich meantime.
M.P. No.
On 12.8.86 the ship went into distress due to the vessels hold Nos.
2 3 were taking in water and the pumping out operation was number sufficient and it called the assistance from all ships in the vicinity.
The appellant Captain Subhash Kumar was the Master of the Merchant ship M.V. Eamaco owned by Eamaco Shipping Co. Ltd. Singapore, hereinafter called the ship.
2 3 taking in water, the pumping operations being insufficient and though initially the appellant sent radio message for help he failed to launch the life boats and life crafts and to abandon the ship to enable M.V. Shoun World to pick them up and due to the failure of motor life boats and life crafts, when the ship sank, only 11 out of 28 persons were rescued resulting in loss of life to the remaining persons.
The companyplaint also said that the appellant rendered himself liable to be proceeded against under the provisions of part XII of the Act which envisaged various modes of investigation and inquiry and under section 363 the companyrt had powers to make an inquiry into the charges of incompetency or misconduct of the appellant.
