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 authorized 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 drawn 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 the claim or counterclaim, the name and nature of the property to be arrested, and that the claim or counterclaim 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 bond, and in a foreign language, also 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. A warrant may be issued before an affidavit by leave

The court or judge may in any case, if they or he thinks fit, allow the warrant to be issued, 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 is not required

In suits in rem, no service of writ or warrant shall be required when the attorney of the defendant waives service and undertakes in writing to appear and to give security or to pay money into court in lieu of security.

7. Attorney not entering an appearance

An attorney not entering an 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 was made

Every writ, warrant, and process 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 effective

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 affected by the 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 the custody of a third party

If the cargo is 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 to file 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

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 the Registry, the 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 the 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 is 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 costs and damages, unless he shall show, to the satisfaction of the Court or a judge, good and sufficient reason for having done so.

27. Caveat against an 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, therefore 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 the issue of an Arrest Warrant

Before issuing a warrant for the arrest of the property, the Registry shall ascertain whether or not any caveat has been entered against the issue of a warrant for the arrest thereof.

30. Service of the plaint on the 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 plaintiff 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. By default, the 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 plaintiffs 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 the law, 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 that 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 hereafter come within the jurisdiction of the court.

34. Notwithstanding the Caveat, the 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 movable property in execution of a decree in any ordinary civil suit.

36. Procedure by Marshal on the sale of property

The Marshall shall pay into court the goes 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 Registry for that purpose.

37. Audience before the 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 the Court shall be paid to the Registrar.

39. Payment out of money

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 filled 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 is not properly filled up, the Registry 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 be saved 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, no 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 those 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 provisions are not made, the rules and practice of ordinary original civil jurisdiction 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 authorized in that behalf in the form given below.

53. Application to fix hearing and give directions

After such consent has been filed, an 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 counterclaim, notice thereof shall be given in writing before such consent as aforesaid is signed.

55. List of documents, Inspection

A list of documents shall be exchanged and a mutual inspection of documents given at or before a time appointed by the judge on the hearing of the application aforesaid.

56. Hearing of the 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 defense on which he reliefs 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 counterclaim, the cause or causes of action and the claim therein, and the 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.