State of maritime laws in Bangladesh
S. M. Mohiuddin Hasan
The establishment and development of maritime legal system is vital for every maritime nation in the present global context. Due to the complexity of maritime operations and the various legal issues involved therewith, the legal system of a country needs to equip itself to the challenges of the sector. Therefore, it is necessary that the national maritime laws are given special consideration under any legal system. National maritime laws tend to cover a vast array of legal matters. Although maritime laws are purely domestic, it does have significant impact at international level. It is a body of law with roots in public international law, civil law, international commerce, international agreement and the laws of nations. It is a branch of the law central to the economic life of a country. Therefore, every nation should consider the importance of formulating a distinct legislative framework for regulating its maritime activities.
Historically, Bangladesh has been a seafaring nation. Over 90 per cent of its trade is transported by sea. Bangladesh currently possesses few laws governing shipping or maritime affairs. There are also a number of rules and regulations affecting this field. The maritime sector is governed by the Bills of Lading Act 1856, the Carriage of Goods by Sea Act 1925, the Merchant Shipping Ordinance 1983, the Marine Fisheries Ordinance 1983, the Ports Act 1908, the Customs Act 1969 and other general statutes along with the general principles of law such as the law of torts and public and private international law etc. These laws are however, inadequate to meet the ever-rising demand of Bangladesh's fast expanding economic and trade relations with foreign countries and developments in the shipping industry.
Additionally, there are many areas in the sector where there are no laws at all. For example, there is no law on maritime priority, marine insurance, marine pollution, collision, salvage, towage etc. Due to the absence of legislation on many issues, Bangladesh tends to follow English enactments by judicial reference. For example, the Maritime Conventions Act, 1911 is an enabling legislation of England giving statutory effect to the provisions of the Collision Convention 1910 and the Brussels Salvage Convention 1910. Though Bangladesh did not ratify the conventions of 1910 yet, but courts of Bangladesh had followed the principles under the English enactment. The High Court Division of the Supreme Court of Bangladesh in Owners M.L. Madina vs.. Owner Jalamoni (1978) 30 DLR 149 applied the principle of the Act giving recognition to the applicability of the Act in admiralty jurisdiction. The Appellate Division of the Supreme Court in Bangladesh Inland Water Transport Corporation vs. M/s. Seres Shipping Corporated World Trade Centre (1984) 36 DLR (AD) 82 concurred with the finding of High Court Division as to the applicability of Act.
The same approach has been followed in case of marine insurance also. In absence of any legislation relating to Marine Insurance, the courts had followed the principles of English Law, and English decisions based on such principles as well as the provisions of the UK Marine Insurance Act, 1906. The Appellate Division in Sadharan Bima Corporation Vs. Bengal Liners Ltd. 16 BLD (AD) 186 held: “In determining issues of marine insurance in general and the issue of unrepaired damage in particular, uptil now, there is no law on marine insurance in the statute book in Bangladesh. Yet, in respect of marine insurance in general the Court of Bangladesh follows the general principles of contract and English law and practice, which are held in high esteem even by the American Courts.”
This being the state of maritime laws of our country, a sound system of maritime law appears not only to be appropriate but also necessary. There is a tendency, understandable given our colonial past, to judge and examine the national maritime laws from an exclusively English or Imperial historical perspective. The nature and development of maritime law of Bangladesh must, however, be assessed and approached by reference to Bangladesh as a fully independent nation. Bangladesh should have a clear and strong national admiralty and maritime legislative arrangements of its own.
The formulation of a maritime law, as a part of Bangladesh's legislation is an important and urgent task for safeguarding Bangladesh's right in ocean shipping and foreign trade. The process of making the new regime of maritime laws of Bangladesh should involve the legal practitioners, scholars, judges, arbitrators, governments, shipowning interests, cargo interests, unions, insurers, brokers, seafarers, pilots and all who work in the maritime industry. The new maritime legislations should define and regulate the entire maritime relationship i.e. the activities and relationship arising from and in connection with sea borne trade, such as the control of vessels, competence and duties of master and crews, liability for collision of vessels, limitation of shipowner's liability, salvage and assistance, marine insurance, pollution, settlement of maritime disputes, maritime liens etc. In this context, adoption of a maritime code in the light of experience of China may be considered. Whatever be the format of the new initiative, foreign maritime laws and international legislations and practice must be taken into consideration and carefully examined so that Bangladesh can profit from foreign experience and avoid conflicts of law with other jurisdictions, bearing in mind international usage and practice. Above all, the law should be beneficial to the maritime industry of Bangladesh.
The writer is an Advocate, Supreme Court, Bangladesh.