Holding

A PCOR may be granted only if the ship satisfies all the conditions for permanent registration—full construction, sea‑going status, and satisfactory proof of ownership—and the certificate cannot be renewed or extended beyond six months, after which it ceases to have effect.

Summary

Halliburton Offshore Services and others sought to challenge the revocation of a Provisional Certificate of Registry (PCOR) issued for the vessel Sita Devi. The Supreme Court examined the statutory requirements under Section 40 of the Merchant Shipping Act, 1958 for granting a PCOR and whether such a certificate could be renewed or extended beyond its six‑month validity. The Court held that the requisites for a PCOR are identical to those for permanent registration, requiring full construction of the ship, sea‑going capability, and satisfactory proof of ownership. Section 40(2) mandates that a PCOR remains effective only until six months from issuance or until the ship arrives at a port with a registrar, whichever occurs first, and it cannot be renewed. Since the vessel had not arrived within six months, the PCOR had ceased to have effect. Consequently, the revocation of the PCOR was upheld and the appeal dismissed.

Issues considered

What are the requisites for obtaining a Provisional Certificate of Registry (PCOR) under Section 40 of the Merchant Shipping Act, 1958?
Whether a PCOR can be renewed or its validity extended beyond the six‑month period prescribed in Section 40(2).
Whether the requirements for a PCOR are the same as those for permanent registration, including ownership and the ship being fully built and sea‑going.

Legislation cited

Merchant Shipping Act, 1958s. 2, s. 20, s. 21, s. 27, s. 28, s. 29, s. 3, s. 30, s. 31, s. 32, s. 33, s. 34, s. 40, s. 41
Merchant Shipping (Registration of Indian Ships) Rules, 1960s. Rule 10, s. Rule 11, s. Rule 12, s. Rule 3, s. Rule 38, s. Rule 5, s. Rule 6, s. Rule 9

Subjects

Provisional Certificate of RegistryMerchant Shipping Actship registrationownershipsea‑goingstatutory interpretationrenewalsix‑month validityIndian flagmaritime law

Judgment

[2017) 6 S.C.R. 764

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

B (Civil Appeal No. 5428 of2017)
APRIL 20, 2017
[DIPAK MISRA AND R. BANUMATHI, JJ.J
Merchant Shipping Act, 1958 - s.40 - Interpretation of -
C Provisional certificate for ships becoming Indian ships abroad -
Requirements to get a Provisional Certificate of Registry (PCOR)
uls.40 and its effect after expiry of six months - Held: Per Dipak
Misra, J.: Requirement for grant of registration dnd provisional
registration is the same S.40 has to be read with the preceding
provisions contained in s.34 onwards till s.41 - The report of
D surveyor and ownership are extremely significant - Conditions
precedent to get a provisional certificate are that the surveyor has
to see that the ship is completely built and thereafter being satisfied
with regard to tonnage and other aspects, then give requisite
certificate to make it sea going-According to s.40(2) the provisional
certificate shall be for six months or until the arrival of the ship at
E
the port, where there is a registrar, whichever first happens - Once
either of the events happens, the certificate of registration ceases
to have effect - Thus, period of six months time is mandatory - Per
R.Banumathi, J.: Title/ownership is very vital for Registration of
ships - As per r.12 authorised officer on production of satisfactory
F proof of ownership grant the provisional certificate ofIndian registry
- Statutory mandates for permanent registry, uls.34 of the Act are
to be satisfied even for obtaining the provisional certificate of
registry uls.40 - Six months' time prescribed u/s.40 and sub-section
(2) of s.40 as a validity period for PCOR, is only to ensure that a
G 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 reasonable period for bringing the ship to the
port of registry in India and complete other formalities requisite for
final registration - Provisional certificate of registry will cease to
have effect after six months of date of issuance or until the arrival
H of the ship at a port where there is registrar whichever first happens
764
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL 765
OFFICER OF MERCANTILE MARINE DEPT.

- PCOR cannot be renewed nor its validity can be extended beyond A
six months - Merchant Shipping (Registration ofIndian Ships) Rules,
1960 - r.12 - Interpretation of Statutes.
Interpreting the provisions of the Act, the Court
Per Dipak Misra, J.
HELD: 1. The issue relating to law inasmuch as it is B
fundamentally required to be dealt with what are the requirements
to get a PCOR under Section 40 of the Merchant Shipping Act,
1958. On a perusal of statutory provisions, the Rules and the
instructions, it is abundantly clear that requirement for grant of
registration and provisional registration is the same. The c
Surveyor's report and the ownership are extremely significant.
The language employed in various rules and the instructions
clearly lay down that the certificate of survey has to convey that
the ship was built. There is distinction between "being complete"
and "complete" or "was built" and, therefore, unless the ship is
completely built and ready sea-going, the owner cannot apply for D
provisional registration certificate. [Paras 2, 39) [770-B; 787-
H; 788-A, BJ
2, Section 40(2) of the said Act has another aspect. It
stipulates the provisional certificate shall be for six months or
until the arrival of the ship at the port, wherever there is a E
registrar, whichever first happens. Once either of the events
happens, the certificate of registration ceases to have effect. Thus
understood, the period of six months time is mandatory. The
peremptory facet clearly conveys that the ship has to be
completely built and ready for sailing into the sea. Section 3(41)
F
defines "sea-going" which means in relation to a vessel, which
proceeds to sea beyond inland water or beyond waters declared
to be smooth or partially smooth waters by the Central
Government by notification in the Official Gazette. [Para 40) [788-
C-D]
3.1 The legislative intendment, the rules framed by the G
department and the instructions which have been issued from
time to time clearly support the interpretation that the ship has
to be completely built and ready for sea-going. If it cannot comply
with Section 40 within six months, that is, arriving at the port
where there is a registrar, the validity of PCOR shall cease to H
766 SUPREME COURT REPORTS [2017) 6 S.C.R.

A exist. The words "shall cease to have effect" mean that it will
have no validity in the eyes of law and, in fact, the document
would be absolutely null and void. Section 40 has a mandate
inherent in it and it has to be viewed from the holistic perspective.
Interpretation of the provision in any other manner would dilute
the legislative intendment. [Para 42] [788-G-H; 789-A-B]
B
3.2 In the case at hand, the provision is plain, clear and
unambiguous. Section 40 does not come all of a sudden. It has a
host of preceding provisions. Therefore, it has to be read with
the preceding provisions contained in Section 34 onwards till
Section 41. The said Chapter is a complete Code. The schematic
C effect is that precautions have to be taken. Tbough surveyors
have been chosen, they have to be extremely careful to see that
the ship is completely built and thereafter being satisfied with
regard to tonnage and other aspects, give the requisite certificate
to make it sea-going. These are the conditions precedent to get
D a provisional certificate. [Para 43] [789-C-E]
Per R. Banumathi, J. (concurring):
HELD: 1. The Law point is not yet ·clearly laid down,
specifically on the requisites for obtaining a Provisional certificate
of registry (PCOR) prescribed under Section 40 of the M.S. Act,
1958 and its effect after expiry of six months. Title/ownership is
E
very vital for Registration of Indian Ships. 'Ownership' is central
to the scheme for registration under the M.S. Act. For registration
of a 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
F 'lnstr11ment 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 Rule 12, the authorised officer on production
of satisfactory proof of ownership grants the provisional certificate
G of Indian 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 no
question of 'partially built' or 'almost built' ship. The statutory
mandates for permanent registry, under Section 34 of the Act are
H to be satisfied even for obtaining the provisional certificate of
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL. 767
OFFICER OF MERCANTILE MARINE DEPT.

registry under Section 40. The language of Section 40 makes it A
clear that the Provisional certificate of registry issued "shall have
the effect ofa certificate of registry until the expiration ofsix months
from its date ...•.." Since the PCOR shall have the same effect as
that of certificate of registry issued under Section 34 of the Act,
the essentials that are required for permanent registration (in
case of a new ship) like (i) application for registry; (ii) builder's B
certificate; and (iii) survey and measurement and all other
requirements as stipulated under Sections 23 to 32 are to be
strictly complied with. This could be said so even more firmly, in
the light of important link established between the ship and the
flag state, by virtue of registration. [Paras 3, 43] [790-C; 810-E- C
H; 811-A-B]
2. 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- D
section (2) of Section 40 of the Act lays down one such mandate
which needs to be strictly complied with. If one considers 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 E
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 F
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". 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 flag unto complete statutory certificates G
requisite for final registration are obtained, though in that course,
the vessel may voyage to ports of other countries. [Para 45] [811-
D-G]
3. As per sub-section (2) of Section 40, the provisional
certificate issued under Section 40 shall have the effect of a final H
768 SUPREME COURT REPORTS [2017) 6 S.C.R.

A certificate of registry 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 itself or in any other provision of the Act. The
B necessary corollary is that the legislature intended to limit the
validity of the provisional certificate of registration, obtained
under Section 40 to 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 built abroad to the Indian port for
C completion of other requisites of obtaining statutory certificates
for final registration. [Para 46] [811-H; 812-A-C]
4. The intention of the legislature is clear and unambiguous
in limiting the validity of provisional certificate of registration
and not providing any provision for renewal of the certificate.
D The only remedy which can probably be resorted to in case of
expiration of provisional certificate is applying for a fresh
provisional certificate of registry which may be considered by
the authorities independently on its own merits. If the phnlse,
"shall cease to have effect" in sub-section (2) of Section 40 is not
interpreted in its letter and spirit and if the provisional certificate
E 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. Thus, the Provisional certificate of
registry cannot be renewed nor its validity can be extended beyond
F six months. [Para 47] (812-C-E)
In the Judgment of Dipak Misra, J.
Sanjeev Coke Manufacturing Company v. Afls Bharat
·Coking Coal Limited and another (1983) 1 SCC 147 :
(1983] 1 SCR 1000; Yogendra Kumar Jaiswal and
G others v. State of Bihar and others (2016) 3 SCC 183;
Ponds India Ltd. v. Collector of Central Excise, Madras
(1997) 2 SCC 577 : (1997] 1 SCR 541 - referred to.
Case Law Reference
[1983] 1 SCR 1000 referred to Para 25 ·
H (2016) 3 sec 183 referred to Para 25
HALLIBURTON OFFSHORE SERVICES INC v. PRINCIPAL 769
OFFICER OF MERCANTILE MARINE DEPT.

[1997] 1 SCR 541 referred to Para 42 A
In the Judgment of R. Banumathi, J.
Maritime Flag and International Law, 1978 Edition by
Mr. Nagendra Singh, issued under the auspices of the
Maritime Law Association of India and the Indian
Society of International Law and published by B
Thomson Press (India) Limited; The Geneva
Convention on the High Seas(1958); United Nations
Convention on the Law of the Seas (UNCLOS) -
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5428
of2017.
c
From the Judgment and Order dated 25 .07.2016 of the High Court
of Judicature at Bombay in Writ Petition No. 1668 of 2016.
Kapil Sibal, Sr. Adv., Dinesh Chandra Pandey, Dhritiman
Bhattacharyya, Nizam Pasha, Piyush Sharma, Ms. Deeti Ojha, Raghav D
Tankha, Tushar Sharma, Advs. for the Appellants.
Mukul Rohatgi, AG., Ajit Kumar Sinha, C. A. Sundaram, Ajay
Kumar Jha, Dr. Abhishek Manu Singhvi, Shyam Divan, Sr. Advs., Ajay
Sharma, Ajay Kumar Singh, Ms. Meenakshi Grover, Gurmeet Singh
Makker, D. S. Mahra, Piyush Sharma, K. R. Sasiprabhu, Krishnayan
Sen, Ankit Jain, Prashant Asher, Gaurav Nair, Naishad Bhatia, Brenda.n E
Pereira, Varun Singh, Mahesh Aggarwal, Ad vs. for the Respondents.
The Judgments of the Court were delivered by
DIPAK MISRA, J. I. Leave granted.
2. The assail in the present appeal, by special leave, is to the
judgment and order dated 25.07.2016 passed by the High Court of F
Judicature at Bombay in Writ Petition No. 1668of2016 whereby it has
quashed the order dated 13.04.2016 passed by the Principal Officer,
Mercantile Marine Department, the first respondent herein, revoking
the Provisional Certificate of Registration (PCOR) dated 16.10.2015
issued in respect of"Vessel Sita Devi" on the basis of materials coming G
to its notice. It is necessary to state here that the 4th respondent, Oil
and Natural Gas Corporation Limited (ONGC) had issued a tender inviting
competitive bids for the charter hire of a stimulation vessel for Mumbai
Offshore for three years on the terms and conditions set out in the tender.
One of the terms and conditions basically related to get a PCOR. For
H
770 SUPREME COURT REPORTS [2017] 6 S.C.R.

A the present, I am not concerned with the tender conditions and compliance
thereof, for this Court though heard the learned counsel appearing for
the parties on facts as well as on law, but at the subsequent stage, it was
thought apposite that the Court should answer the issue relating to law
inasmuch as it is fundamentally required to be dealt with what are the
requirements to get a PCOR under Section 40 of the Merchant Shipping
B
Act, 1958 (for brevity, "the Act"). Therefore, I shall advert to the law in
that regard and answer the same and, thereafter the controversy shall
be dealt with on the basis of the judgment presently rendered and other
facts, ifrequired.
3. For the determination of the issue, I have heard Shri Kapil
c Sibal, learned senior counsel for the appellants, Shri Mukul Rohatgi,
learned Attorney General for India and ShriAjit Kumar Sinha, learned
senior counsel for the Union of India, Shri C.A. Sundaram, learned senior
counsel for the respondent No. 5 and Dr. Abhishek Manu Singh vi, learned
senior counsel for respondent No. 7. It is worthy to mention that Shri
D Mukul Rohatgi has also addressed the Court on behalf of ONGC.
4. To appreciate the controversy in proper perspective, it is
necessitous to appreciate and interpret certain provisions of the Act
commencing from Section 2 to Section 41. I shall also refer to other
provisions of the Act as my attention has been drawn to some of them
E for scrutinizing the marrows of Section 40 of the Act and not merely to
dissect it. I also make it clear that the provisions which are required to
be focussed from Section 2 to Section 41 shall only be delved upon.
5. Prior to referring to the provisions, I think it pertinent to refer to
statement of objects and reasons. It reads as follows:-
F "An Act to foster the development and ensure the efficient
maintenance of an Indian Mercantile marine in a manner best
suited to serve the national interests and for that purpose to
established a National Shipping Board to provide for the
registration, certification, safety and security of Indian ships and
generally to amend and consolidate the law relating to merchant
G
shipping."
6. Section 2 deals with application of the Act. It is as follows:-
"Section 2. Application of Act.-(!) Unless otherwise expressly
provided, the provisions of this Act which apply to-
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 771
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

(a) any vessel which is registered in India; or A
(b) any vessel which is required by this Act to be so registered; or
. (c) any other vessel which is owned wholly by persons to each of
whom apy of the descriptions specified in clause (a} or in clause
.(b) or in clause (c ), as the case may be, of section 2.1 applies,
· shall so ajJply wherever tqe vessel may be. · B
(2) Unless otherwise expressly provided, the provisions of this
Act which apply to vessels other than those referred to in sub-
section ( 1) shall so apply only while any such vessel is within
India, including the territorial waters thereof."
c
7. Section 3 is the dictionary provision. Sub-section (23) defines
"owner" as follows:-
"(23) "owner" means-
(a) in relation to a ship, the person to whom the ship or a share in
~~~~p; D
(b) in relation to a sailing vessel, the person to whom the sailing
vessel belongs;"
8. Sub-section (35) defines "registrar" means the registrar referred
to in Section 24. Sub-section (39) defines ''sailing vessels" as under:-
E
"(39) "sailing vessel'', means any description of vessel provided
with sufficient sail area for navigation under sails alone, whether
or not fitted with mechanical means of propulsion, and includes.a
rowing boat or canoe but does not i)1clude a pleasure craft;"
9. Sub-section (41) defines "sea-going" in relation to a vessel. It F
reads as follows:-
"(41) "sea-going", in relation to a vessel, means a vessel proceeding
to sea beyond inland waters or beyond waters declared to be
smooth or partially smooth waters by the Central Government by
notification in the Official Gazette;" · G
10. Sub-section (45) defines "ship" does not include a sailing vessel.
Sub-section (55) defines "vessel" in the following terms:-
"(55) "vessel" includes any ship, boat, sailing vessel, or other
description of vessel used in navigation;"
H
772 SUPREME COURT REPORTS [2017] 6 S.C.R.

A 11. I have referred to the aforesaid definitions as the learned
counsel for the parties have differently placed interpretation on the words
used in the statute. Part II deals with National Shipping Board and Part
III deals with General Administration. For the present, I am concerned
with Section 9 that occurs in Part III. Section 9 is extracted below:-
B "Section 9. Surveyors. (I) The Central Government may, by
notification in the Official Gazette, appoint at such ports as it may
consider necessary as many persons as it may think fit to be
surveyors for the purposes of this Act.
IA. Without prejudice to the provisions of sub-section (1), the
c Central Government, in the case of cargo ships, may, by
notification in the Official Gazette authorise any person or body
of persons, on such terms and conditions as may be specified
therein, to be surveyor or surveyors for the purposes of this Act.
(2) The surveyors may be nautical surveyors, ship surveyors or
D engineer and ship surveyors.
(3) At any port at which no surveyor appointed under this section
is available, the Central Government may, by notification in the
Official Gazette, appoint any qualified person to perform the
functions of a surveyor under this Act.
E (4) All acts done under this Act by a principal officer of the
Mercantile Marine Department or a person appointed under sub-
section (3) relating to matters within the competence of a surveyor
shall have the same effect as if done by a surveyor for the purposes
of this Act."
F 12. Part V deals with Registration of Indian Ships. Section 20
provides that Part V applies only to sea-going ships fitted with mechanical
means of propulsion. Section 21 provides for the purposes of the Act, a
ship shall not be deemed to be an Indian ship unless owned wholly by
persons to each of whom the descriptions mentioned therein applies.
G Section 22 provides obligation for registration to the Indian ships. The
said provision, being significant, is reproduced below:-
"Section 22. Obligation to register.-
(!) Every Indian ship, unless it is a ship which does not exceed
fifteen tons net and is employed solely in navigation on the coasts
H of India, shall be registered under this Act.
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 773
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

(2) No ship required by sub-section (1) to be registered shall be A
recognised as an Indian ship unless she has been registered under
this Act:
Provided that any ship registered at the commencement of
this Act at any port in India under any enactment repealed by this
Act, shall be deemed to have been registered under this Act and B
shall be recognised as an Indian ship.
(3) A ship required by this Act to be registered may be detained
until the master of the ship, if so required, produces a certificate
of registry in respect of the ship.
Explanation.-For the purposes of this section, "ship" does not C
include a fishing vessel".
13. Section 23 to Section 33 come under the heading Procedure
for Registration. Section 23(1) provides for that the ports of Bombay,
Calcutta and Madras and such other ports in India as the Central
Government may, by notification in the Official Gazette, declare to be D
ports of registry under this Act shall be such ports where registration
can be made. Sub-section (2) stipulates that the port at which the Indian
ship is registered for the time being under the Act shall be deemed to be
a port of registry and port to which she belongs. Section 24 deals with
Registrars of Indian Ships. Section 25 states about the Register book. E
The said provision reads as follows:-
"Section 25. Register book-Every registrar shall keep a book
to be called the register book and entries in that book shall be
made in accordance with the following provisions:-=-
(a) the property in a ship shall be divided into ten shares; F
(b) subject to the provisions of this Act with respect to joint owners
or owners by transmission, not more than ten individuals shall be
entitled to be registered at the same time as owners of any one
ship; but this rule shall not affect the beneficial interest of any
number of persons represented by or claiming under or through G
any registered owner or joint owner;
(c) a person shall not be entitled to be registered as owner of a
fractional part of a share in a ship; but any number of persons not
exceeding five may be registered as joint owners of a ship or of
any share or shares therein; H
774 SUPREME COURT REPORTS [2017] 6 S.C.R:

A (d) joint owners shall be considered as constituting one person
and shall not be entitled to dispose in severalty of any interest in a
ship or any share therein in respect of which they are registered;
(e) a company or a co-operative society may be registered as
owner by its name."
B On a perusal of the aforesaid provision, it is quite clear the property
in a ship has to be divided into ten shares and also deals with who can
own a ship.
14. Section 26 provides for an application to be submitted for the
registry oflndian ship. Section 27( l) stipulates that the owner of every
C Indian ship in respect of which an application for registry is made shall
cause such ship to be surveyed by a surveyor and the tonnage of the
ship ascertained in the prescribed manner. Sub-section (2) of the said
provision mandates that the surveyor shall grant certificate specifying
the ship's tonnage and build and such other particulars descriptive of the
D identity of the ship to be prescribed and the certificate of the surveyor
shall be delivered to the registrar before such registry.
15. Section 28 deals with Marking of ship. I think it appropriate to
reproduce the said provision:-
"Section 28. Marking of ship.-(1) The owner of an Indian
E ship who applies for registry under this Act shall, before registry,
cause her to be marked permanently and conspicuously in the
prescribed manner and to the satisfaction of the registrar and any
ship not so marked may be detained by the registrar.
(2) Subject to any other provision contained in this Act and to the
F provisions of any rules made thereunder, the owner and the master
of an Indian ship shall take all reasonable steps to ensure that the
ship remains marked as required by this section, and the said owner
or master shall not cause or permit any alterations of such marks
to be made except in the event of any of the particulars thereby
denoted being altered in the manner provided in this Act or except
G
to evade capture by the enemy or by a foreign ship of war in the
exercise of some belligerent right."
The aforesaid provision lays stress on the marking of ship that
brings identity to the ship.

H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 775
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

16. Section 29 deals with declaration of ownership on registry. It A
lays down that a person shall not be registered as the owner of an Indian
ship or of a share therein until he or, in the case of a company, or a co-
operative society the person authorized by the Act to make declarations
on its behalf has made and signed a declaration of ownership in the
prescribed form referring to the ship as described in the certificate of B
the surveyor. The said provision requires that -the declarations should
contain certain particulars. Sub-sections 29(a) to (e) deal with such
particulars. They read as follows:-
"(a) a statement whether he is or is not a citizen of India; or in the
case of a company, or a co-operative society, whether the company
or a co-operative society, satisfies the requirements specified in c
clause (b) or, as the case may be, clause ( c) of section 21;
(b) a statement of the time when and the place where the ship
was built or ifthe ship is built outside India and the time and place
of building is not known, a statement to that effect; and in addition,
in the case of a ship previously registered outside India, a statement D
of the name by which she was so registered;
(c) the name of her master;
(d) the number of shares in the ship in respect of which he or the
company, or the co-operative society], as the case may be, claims E
to be registered as owner; and
(e) a declaration that the particulars stated arc true to the best of
his knowledge and belief." ·
The aforesaid provision commands that a statement with regard
to time and place where the ship was built has to be made. It is F
imperative.
17. Section 30 provides for evidence on first registry. It requires
that on the first registry, of an Indian ship certain evidence have to be
produced in addition to the declaration of ownership. Sub-section (b) of
tiie said Section requires that in the case of a ship built outside India, the G
same evidence as in the case of a ship built in India unless the declarant
who makes the declaration of ownership declares that the time and place
of her building are not known to him or that the builder's certificate
cannot be produced and in that event, it shall be required only the

H
776 SUPREME COURT REPORTS [2017] 6 S.C.R.

A instrument of sale under which the ship or a share therein has become
vested in the applicant for registry.
18. Section 31 deals with the entry of particulars in register book.
It is necessary to extract the said Section:-
"Section 31. Entry of particulars in register book. -As soon
B as the requirements of this Act preliminary to registry have been
complied with, the registrar shall enter in the register book the
following particulars in respect of the ship:-
(a) the name of the ship and the name of the port to which she
belongs;
c
(aa) the ship identification number;
(b) the details contained in the surveyor's certificate;
(c) the particulars respecting her origin stated in the declaration
of ownership; and
D
(d) the name and description of her registered owner or owners,
and, if there are more owners than one, the number of shares
owned by each of them."
19. The said provision, as is demonstrable, requires the particulars
contained in the surveyor's certificate, the ship identification number
E and the name of the ship and name of the port to which it belongs, etc.
Section 32 enumerates that the documents, namely, the surveyor's
certificate, the builder's certificate, any instrument of sale by which the
ship was previously sold and all.declarations of ownership to be retained
by the registrar in his custody on the registry of a ship.
F 20. Section 34 to Section 41 come under the heading "Certificate
of registry". The grant of certificate of registry is controlled by Section
34. It stipulates that on completion of the registry of an Indian ship, the
registrar shall grant a certificate of registry containing the particulars
respecting her as entered in the register book with the name of her
G master. Section 35 provides for custody and use of certificate. Section
36 deals with power to grant new certificate when original certificate is
defaced, lost, etc. Section 37 makes provision for endorsement on
certificate of change of master. Section 38 similarly deals with
endorsement on certificate of change of ownership.

H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 777
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

21. Section 40, which is the provision that calls for interpretation, A
is extracted below:-
"Section 40. Provisional certificate for ships becoming Indian
ships abroad.-( 1) If at any port outside India a ship becomes
entitled to be registered as an Indian ship, the Indian consular
officer there may grant to her master on his application a provisional B
certificate containing such particulars as may be prescribed in
relation to the ship and shall forward a copy of the certificate at
the first convenient opportunity to the Director General.
(2) Such a provisional certificate shall have the effect of a
certificate of registry until the expiration of six months from its c
date 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."
22. The question that arises for consideration in the interpretative
process of the aforesaid provision basically pertains to requirements for D
grant of provisional certificate for ships becoming Indian ships abroad.
On a careful scrutiny of the said provision, it is discernible that any port
outside can be a port to grant the provisjonal registration certificate. In
this context, Section 23 becomes relevaht, for apart from domestic ports,
the Central Government has been conferred the power by Parliament to
issue notification in the official gazette to declare the ports of registry E
under this Act. Sub-section (1) of Section 40 provides that if at any port
that has been notified to register an Indian ship then the Indian Consular
Officer is empowered to grant to the master of the ship, who is entitled
to be registered as an Indian ship on an application being made, a
provisional certificate containing such particulars as may be prescribed F
in relation to the ship and forward the copy of the certificate at the first
convenient opportunity to the Director General. The key words of this
provision are "entitled to be registered".
23. Sub-section (2) of Section 40 provides that a provisional
certificate shall have the effect of a certificate of registry until the G
expiration of six months from its date 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. Thus a provisional
certificate has a maximum life span of six months. The submission on
behalf of the appellants is that a ship has to be a completely built ship
H
778 SUPREME COURT REPORTS [2017] 6 S.C.R.

A and it has to be fully compliant with the necessary documents as provided
in the rules and the circulars. The Union of India had taken a different
stand before the High Court. The affidavit filed by the Union of India
before the High Court is quite different.
24. The stand taken by the department before the High Court
B need not detain me as my obligation is to interpret the provision regard
being had to the language employed by the legislature. Mr. Mukul Rohtagi,
learned Attorney General appearing for the Union of India as well as for
ONGC would contend that Section 40 has to be understood in the context.
Similar submissions have been advanced by Mr. Ajit Kumar Sinha, learned
senior counsel appearing for the Union of India. The argument by them
c is that sub-section (2) has to be interpreted with a purpose. It is urged
by them that a provisional certificate is granted to the master on certain
particulars being furnished and the said certificate remains in force for
six months so that it is to be ready and travel to the identified port or a
port in India. The submission of Mr. Rohatgi and Mr. Sinha is that from
D the language employed, it cannot be construed that it refers to a ship
which is built completely or ready for delivery.
25. At this junction, I think it appropriate to state that when a
legislation is made by Parliament, it is the duty of the courts to interpret
it and this Court is the final interpreter. It is because no one is a
E spokesman for the Parliament. In this regard, a passage from Sanjeev
Coke Manufacturing Company v. Mis Bharat Coking Coal Limited
and another1 would be quite instructive:-
"25 .... Once a statute leaves Parliament House, the Court is the
only authentic voice which may echo (interpret) the Parliament.
p This the court will do with reference to the language of the statute
and other permissible aids .... "
Similar view has been expressed in Yogendra Kumar Jaiswa/
and others v. State of Bihar and others2.
26. At this juncture, I may refer to the relevant rules of the
G Merchant Shipping (Registration oflndian Ships) Rules, 1960 (for short,
'the Rules'). Rule 11 provides that on completion of the preliminaries to
registry, the registrar shall enter the particulars of the ship in the register
book and issue to the owners a certificate of registry.
1
(1983) 1 sec 147
H 2 (2016) 3 sec 183
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 779
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

27. Rule 12 which provides to acquisition of ship abroad. It is as A
follows:-
"( 1) If any ship is built or acquired out oflndia and becomes the
property of persons qualified to own an Indian ship, the owner cir
master of the ship shall apply to the Indian Consular Officer at
the nearest port for the issue of a.provisional certificate of Indian B
registry and such officer may, on.production of satisfactory proof
of ownership, grant the same to the owner or master."
28. Rule 38 provides for Forms. The said Rule, being relevant, is
extracted below:-
"Forms- Every application, certificate, advertisement, declaration, C
return report or any other documents referred to in these rules
shall, if a form therefore has been prescribed in Schedule I to
these rules, be in the appropriate form."
29. The Schedule I to Rule 38 gave description of Forms and
registry Form number. Registry Form No. 14 deals with provisional
certificate of Indian Registry. Registry Form No. 17 deals with certificate D
of survey. Registry Form No. 14 reads as follows:-
"Provisional Certificate oflndian Registry
(Merchant Shipping Act, 19 58, Sections 40( 1))
Expiry on or before the ...... day of .... 19 ... .
E
Issued by the Government of India

Name of Ship (a) Where and when Built Steam or Motor Ship,
how propelled

F

Number of Decks ...... Framework and description of ship
Number of Masts .......... Number of bulkheads
Rigged .................. .
G
Steam ............... .
Stem ............ Number of water ballast tanks and Their capacity
in tons.
Build ....
H
780 SUPREME COURT REPORTS [2017] 6 S.C.R.

A Measurements Feet Tenths Metres
Length from the
fore part of stem
to the aft side

Of the head of ''
B the stern post

Main breadth to
outside of
plating

c Depth m hold
from tonnage
deck to celling
amidships

Length of engine
room
D
Number of engines ................... .
Combined Horse Power ................... .
Name and address of engine maker ............... .
Particulars of Tonnage
E
Gross Tonnage No. of Cubic Deductions No. of
tons meters allowed tons
Under tonnage On account of
deck space or space required
spaces between for propelling
decks power
F Turret or trunk On account of
spaces
provided by
way of crew
accommodatio
n as follows:
Forecastle
G Bridee soace
Poop or break (Number of
seamen or
apprentices for
whom
ace om modatio
ns certified
H ...... )
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 781
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

Side houses A
Deck houses
Chart houses
Spaces for
machinery and
light and air B
Excess of Other deductions:
hatchways Gross
tonnage Total
Deductions, as per
contra Register
tonnage c
Note 1: The tonnage of the engine room spaces below the upper
deck is ... Tons and the tonnage of the total spaces framed in
above the upper deck for propelling machinery and for light and
air is .... tons.
D
Note 2 : The undermentioned spaces above the upper deck are
not included in the cubical contents forming the ship's register
tonnage-
Note 3: The location and tonnage of the boatswains store rooms
are as follows ...................... ..
E
1. That the ship, the description of which is prefixed to this my
Provisional Certificate, has been duly surveyed, and that the above
description is true (b)
2. That. ........ of......... is Master of the said Ship.
3. That the person or persons whose names are hereunder written F
purchased at ...... on the ........ day of ..... 19 ...
Or
3. That the Ship was built at ............ On account of the persons
or persons whose names are hereunder written.
G

Name, Residence and Number of Tenth Shares
Occupation of the owner

H
782 SUPREME COURT REPORTS [2017] 6 S.C.R.

A Dated at ....... the ........ day of. ...... one thousand nine hundred and
......... Indian Consul."
[emphasis supplied]
30. Registry Form No. 17 deals with surveyor certificates requires
the surveyor to address the following aspects:-
B
Name of Ship Port of intended Name and Official
Registry Number if there has
been any former
registry

c Whether Indian or Whether a Where When Name
Foreign Built Steam or built Built and
Motor address
Ship; how of
propelled Builders
Number of Decks Length from fore part Meters
D of stem, to the aft side
of the head of the stem
post/fore side of ruder
stock
Number of Masts Main breadth to outside
of plating
E Rigged Depth m hold from
tonnage deck to ceiling
amidships
Stem Depth in hold from
upper deck to ceiling
amidships, in the case
F of two decks and
upwards
Stem Depth from top of
upper deck at side
amidships to bottom of
keel .
G
Build Round beam on
upper/deck
Framework and Length of engine-room
description of ship (if anv)
Number of
Bulkheads
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 783
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

Particulars of Tonnage A
Gross With Without Deduction Cubic
Tonnage exempted exempted allowed Meters
Tween tween deck
Deck
B
Upper Cubic Meters On account
tonnage of space
deck Spaces required
or space for
between propelling
Decks. power .... c
Turret or On account
Trunk.. of spaces
Forecastel.. provided
Bridge by way of
space.. crew
Poop accommod D
Break.. ation, as
Side follows:-
Houses ... (Number of
Deck seamen or
Houses .. apprentices
Chart for whom E
Houses .. accommod
Spaces for at ion is
Machinery, certified
and light, Other
and air ... deductions:
F
Excess of -
Hatchwavs
Gross
Tonnage ... ·
Deductions, Tonnage Tonnage
as per contra Mark not Mark G
Register submerged submerged
Tonnage ...

Note 1 : The tonnage of the engine room spaces below the tonnage
deck is ..... cubic meters and the tonnage of the total spaces H
784 SUPREME COURT REPORTS [2017] 6 S.C.R.

A framed in above the tonnage deck for propelling machinery and
for light and air is .... Cubic meters.
Note 2: The undermentioned spaces above the tonnage deck are
not included in the cubical contents forming the ship's register
tonnage.
B
Note 3: The location and cubic capacity of the boatswains store
rooms are as follows:
I, the undersigned Surveyor appointed under Section 9 of the
Merchant Shipping Act, 1958, having surveyed the above named
ship hereby certify that the above particulars are true and· that
c here name is marked on each of her bows and her name and the
port ofregistry are properly marked on a conspicuous art of her
stern and a scale of meters denoting her draft are marked on
each side of her stem and of her stern post as prescribed.
Date at ..................... .
D Surveyor ...... .
This ..... day of.. ...... 19 ...... "
31. It is seemly to note that a circular has been issued by the
competent authority on August 28, 2008 prescribing the modified
E procedure for Registration ofVessels under the Merchant Shipping Act.
It states thepurpose in the following terms:-
"IN ADHERENCE TO the fundamental tenet of Merchant
Shipping Act 1958 as amended, and considering the reservations
expressed by the shipping industry with regard to certain prevailing
guidelines I practices; the Directorate General of Shipping (DGS)
F
has identified areas to be addressed for expanding maritime sector
and encouraging the growth of"quality" Indian tonnage.
REALISING the need of Shipping industry for detailed and
modified guidelines on registration of vessels and regarding
procedures on matters including technical clearance, survey prior
G
registration, provisional registration, and mortgage entry.
UNDERSTANDING the difficulties that ship owners face, due
to the delay in processing the registration and other proceedings
thereof, which extends from acquisition till registration formalities
are completed.
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 785
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

NOTING THAT Part V of the Merchant Shipping Act, 1958 and A
the Merchant Shipping (Registration oflndian Ships) Rules, 1960
as amended in 1966, 1970, 1994 and 1997, by the Central
Government provide for and prescribe the procedure for
registration and provisional registration oflndian Ships.

WITH A VIEW to codify the existing guidelines on registration of B
ships and REVIEWING therefore the procedures, current
practices of survey and certification related thereto."

32. Thus, it is manifest that the procedures have been amended
and it is also meant to expanding the maritime sector and encouraging
the growth of "quality" Indian tonnage. It also deals with procedures C
pertaining to issues of Certificate of Survey and tonnage certificate for
T<:chnical clearance/Survey prior to Registration. Para 2.1 provides as
follows:-

"2.1 Application for allotment of name, Official number and Call
Sign combined with the application for allotment ofMMSI number D
will be made by the owner through the Registrar to DGS bx fax
and approval by DGS would be made by return fax within 24
hours.

After applying for registration/name-approval of his vessel with a E
Registrar in the prescribed format, the prospective ship-owner,
shall put up the vessel for survey as required vi de Section 27(1)
of the M.S. Act and Rule 5 of the M.S. (Registration of Indian
Ships) Rules, 1960, either by the Mercantile Marine Department
(MMD) or the Indian Register of Shipping (IRS)."
F
33. Para 2.2 deals with Certificate. It is as follows:-

"The survey as referred to in para "2.1" above, shall be carried
out for the purpose of verifying the particulars to be included in
the Certificate of Survey as mentioned in Section 27(2) of the
M.S. Act and not principally for assessing the compliance of the G
applicable statutory rules.
The attending Surveyor may issue a Certificate of Survey and a
Provisional Certificate of Registry irrespective of the location of
the vessel, if duly authorized by a Registrar of Ships."
H
786 SUPREME COURT REPORTS [2017) 6 S.C.R.

A 34. Para 2.3 reproduced as follows:-
"Issuance of the Certificate of Survey as stated in para. "2.2"
above and/or the Certificate of Registry as stated in Section 34 of
M.S. Act and Rule 11 of the Merchant Shipping (Registration of
Indian Ships) Rules, 1960, does not entitle the vessel to ply, unless
B she has in her possession, the required statutory certificates and
valid documents."
35. Para 3 deals with the procedure in regard to Surveys for
issuance of Statutory Certificates. Para 4 deals with the issues pertaining
to provisional registration, carving and marking etc., The said paragraph
reads thus:-
C
"4. Issues pertaining to provisional registration, carving and marking
etc.
4.1 The ship owner, shall in his own interest make every endeavour
to have his vessel registered on provisional or permanent basis at
D the very outset.
4.2 The name of the vessel, her port ofregistry and other markings
need only be painted as per specifications at the time of change
of flag in line with global maritime practices. However, the IMO
Number (Ship Identification Number) has. to be permanently
marked as per Regulation 3(4) of Chapter XI-I: Special measures
E
to enhance maritime safety, of SOLAS, 1974 as amended. The
Official Registration No. and registered net tonnage shall continue
to be affixed on bridge as mentioned in Rule I 0 of the Merchant
Shipping (Registration of Indian Ships) Rules, 1960, as amended.
4.3 The age of the vessel is to be computed from her date -of
delivery from the shipyard as may be established by the ship owner,
with documentary evidence.
4.4 A provisional certificate of registry shall continue to remain
valid till the date of its expiry, regardless of the location of the
vessel."
G
36. The check list No. l that has been brought on record provides
for basic documents. Para 4 of the same deals with provisional registry.
It is as follows:-
"Provisional Registry: On request of owner, the RoS can authorize
H the Consular Officer/MMD/IRS to verify the required documents,
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 787
OF MERCANTILE MARINE DEPT. [DIPAK MISRA, J.]

witness the markings on board the vessel as per C&M Note and A
issue provisional certificate of registry irrespective of age or
location of the vessel."
37. Para 6 deals with Permanent Registry. It reads as follows:-
"Owner to provide all documents for permanent registration as
per check list. Every detail required to be filled up in the "Certificate B
of Survey" and "Particulars of Ship" are to be made available
and evidences for such data be given."
38. Para 5 deals with Permanent/Provisional Registry. I think it
appropriate to reproduce the same:-
c
"Permanent/Provisional Registry:

• Application for Registry as per Checklist No. 1 (Available on
MMD website) alongwith an online application in DGS and
MMD site.
D
• Alternatively a Provisional Certificate of Registry can be issued
to the vessel for six months, if the vessel is abroad or if the
documents are not complete as per the requirements.

• For provisional Certificate of Registry, the documents required
are i) An application, ii) Original Carving & Marking duly verified E
by the Surveyor, iii) Certificate of Survey, iv) Original Board
Resolution for a company or signed by all the .partners for
Partnership Firm, v) Original Declaration of Ownership duly
signed before Principal Officer, vi) Original Bill of Sale for a
second hand vessel or Original Builder's certificate for a new
F
ship.

• When the vessel is abroad and a Provisional Certificate of
Registry (PCOR) is to be issued for taking delivery, the owner
has to apply for a blank Provisional Certificate of Registry (onlirie
& hard copy - Fees Rs.100/-). A separate application to be
G
made to instruct the class for issuance of PCOR giving date
and place of delivery and a copy of Memorandum of
agreement."
39. On a perusal of statutory provisions, the Rules and the
instructions, it is abundantly clear that requirement for grant of registration
H
788 SUPREME COURT REPORTS [2017] 6 S.C.R.

A and provisional registration is the same. The Surveyor's report and the
ownership are extremely significant. The language employed in various
rules and the instructions clearly lay down that the certificate of survey
has to convey that the ship was built. There ls distinction between "being
complete" and "complete" or "was built" and, therefore, I am compelled
B to construe that unless the ship is completely built and ready sea-going,
the owner cannot apply for provisional registration certificate.
40. Section 40(2) has another aspect. It stipulates the provisional
certificate shall be for six months or until the arrival of the ship at the
port, wherever there is a registrar, whichever first happens. Once either
of the events happens, the certificate of registration ceases to have effect.
C Thus understood, the period of six months time is mandatory. The
peremptory facet clearly conveys that the ship has to be completely built
and ready for sailing into the sea. I am compelled to so interpret that
Section 3(41 ), which I have reproduced hereinbefore, defines "sea-going"
which means in relation to a vessel, which proceeds to sea beyond inland
D water or beyond waters declared to be smooth or partially smooth w11ters
by the Central Government by notification in the Official Gazette.
41. Mr. Rohatgi, learned Attorney General has drawn my attention
to various provisions of the Act that relate to safety. The concept of
safety occurs in Part IX of the Act. It is urged by him that unless Rules
E are followed, a ship cannot enter Indian sea. The aforesaid submission
on a first blush looks quite attractive but on a keener scrutiny pales into
insignificance. It is to be borne in mind that Section 20 that occurs in
Part V of the Act which deals with registration oflndian ships applies
only to sea-going ships fitted with mechanical means of propulsion. A
ship that is granted certificate of registration under Section 34 has to
F satisfy the similar conditions for grant of PCOR. Unless such a
construction is placed, it is likely to create incurable anomaly.
42. The legislative intendment, the rules framed by the department
and the instructions which have been issued from time to time clearly
support the interpretation that the ship has to be completely built and
G ready for sea-going. If it cannot comply with Section 40 within six months,
that is, arriving at the port where there is a registrar, the validity of
PCOR shall cease to exist. The words "shall cease to have effect"
mean that it will have no validity in the eyes of law and, in fact, the
document would be absolutely null and void. In this regard, the authority
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 789
OF MERCANTILE MARINE DEPT.

in Ponds India Ltd. v. Collector of Central Excise, Madas3 would A
be instructive. In the said case, while interpreting the terms of the Finance
Act, it was held that special excise duty so levied would cease to have
effect at the close of the financial year and, therefore, it was an annual
levy and may or may Iiot be levied in the following year. Thus understood,
after expiry of six months, PCOR gets extinct. Be it clarified, that Section B
40 has a mandate inherent in it and it has to viewed from the holistic
perspective. Interpretation of the provision in any other manner would
dilute the legislative intendment.
43. I will be failing in my duty ifl do not take note of the submission
advanced by Mr. Rohatgi, learned Attorney General that Section 40 was
drafted when India had not grown in the shipping arena and, therefore, C
at that juncture, ships were booked in a different stage; In the case at
hand, as I find, the provision is plain, clear and unambiguous. Section 40
does not come all of a sudden. It has a host ~preceding provisions.
Therefore, it has to be read with the preceding provisions contained in
Section 34 onwards till Section 41. The said Chapter is a complete Code. D
The schematic effect is that precautions have to be taken. Though
surveyors have been chosen, they have to be extremely careful to see
. that the ship is completely built and thereafter being satisfied with regard
to tonnage and other aspects, give the requisite certificate to make it
sea-going. These are the. conditions precedent to get a provisional
certificate, E

44. I had stated earlier that first I shall deal with the legal aspect
and thereafter, if required, will deal with the issue that arises from the
tender conditions by the ONGC. However, I may note that the ship in
question has not arrived at the port within the mandatory period of six
months. Therefore, the PCOR that had been granted in favour of "Vessel F
Sita Devi" has ceased to exist. It has lost its validity. Needless to say,
the owner can apply for the fresh PCOR which can be considered keeping
the judgment in view.
R. BANUMATHI J. I. I have gone through the draft judgment:
prepared by His Lordship Dipak Misra J. and I agree with the reasonings G
recorded by His Lordship. However, in view of the importance of the
questions involved and interpretation of the provisions of the Merchant
Shipping Act, 1958, (For short 'the M.S. Act') I would prefer to give my
own reasonings for my concurrence.
'(\997) 2 sec sn H
790 SUPREME COURT REPORTS . [2017) 6 S.C.R.

A 2. The ~ssue relates to Provisional Certificate of Registry (PCOR)
dated 16.10.2015 issued to vessel Sita Devi by the Mercantile M~rine
Department (MMD). Issuance of PCOR was challenged by Halliburton
Offshore in W.P. No. 961/2016. While the said Writ Petition was pending,
PCOR ·issued to vessel Sita Devi was revoked by an order dated
B 13.04.2016 which became a subject matter of challenge in W,P. 1668/
2016 preferred by Sita Offshore India Private Limited.
3. The counsel for the _parties, though elaborately argued the matter
on facts as well as on law, after hearing the matter at length, vide
proceeding dated 02.02.2017, it was thought apposite that this Court
first answers the issues relating to law. It was realised that the law on
C . the point is not yet clearly laid down, specifically the requisites for
obtaining a Provisional certificate of registry (PCOR) prescribed under
Section 40 of the M.S. Act, 1958 and its effect after expiry of six months.
4. While dealing with the core issue, as stated above, what
pertinently require to be dealt with are as under:-
D (i) Whether the requisites for obtaining Provisional Certificate of
Registry (PCOR)are the same as in the case of obtaining
permanent registration, as stipulated under Sections 21 to 32
of the Merchant ShippingAct, 1958, in terms of (i) Ownership
(ii) Built/construction (iii) other requisites of permanent
. E registration.
(ii) When sub-section (2) of Section 40 of the Merchant Shipping
Act uses the language "provisional certificate shall have
the effect of certificate of registration until the expiration
of six months from its date ........... ", whether PCOR is
statutorily renewable/ extendable after the expiry of six months
F of Provisional Certificate of Registry.
5. Before considering the above issues in detail, in the light of the
scheme of the M.S. Act, 1958, and allied rules and circulars, I would like
to briefly refer to the origin of the Act and the importance ofregistration
and maritime flag, so as to emphasize the establishment oflink between
G the vessel and the country whose flag it flies, and the national interest
involved therein.
Importance of Registration and Maritime Flag:-
6. As the registration of a ship enables the ship to fly the flag of
H the country where it is registered, registration and the maritime flag
- - -.--.~------ .,,,-·

.•
. HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 791
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]
1
assumes great importance. Every unit of transport, whether public or A
private, such as motor vehicles while operating on.land or an aircraft
operating in sky must bear some legal recognition for ascertainment of
jurisdiction. Similarly, when the ship is in the high seas or in the ports
and harbours or in the territorial water of maritime States, it is necessary
that the ship bears the maritime flag. Importance of registration of ·a B
ship and the identification marks in the case of a ship is succinctly dealt
with in the book titled "Maritime Flag and International Law, I978
Edition"- at page no.I authored by a well-renowned scholar and jurist
Mr. Nagendra Singh, issued under the auspices of the Maritime
Law Association of India and the Indian S()ciety of International
Law and published by Thomson Press (India) Limited, as under:- C
"Every unit of transport whether a public carrier or a private one,
irrespective of the fact whether it is operating on land such as a
motor vehicle or on water such as a ship or in the skies such as an
aircraft, has to bear an identification mark since an unidentifiable
object of traffic would elude fixation ofresponsibility for its acts D
of omission and commission and thus defy maintenance of law
and order particularly in the context of the open sea which is not
subject to the jurisdiction of the sovereign States. If the rule of
the road necessitates an identification mark for every carrier with
a view to securing an orderly conduct of traffic, it becomes the
responsibility of none other than the State itself both in the municipal E
and in the international sphere to register transport vehicles with
a view to giving them the necessary distinguishing marks. Thus,
registration of vehicles becomes an inescapable procedural agency
once it is decided that the grant of identification marks is essential
since a record has simultaneously to be kept of which mark has F
been assigned to which particular unit of transport. In the maritime
sphere too, the position is not different since sovereign States,
members of the family of nations, are themselves responsible for
the maintenance oflaw and order on the open sea and hence the
duty to register and give identification marks to carriers on the
high seas falls on the sovereign State itself." G
7. Maritime flag is the direct result of the registration of the ship.
Law of seas, by custom, imposes a duty upon every State having ships
owned by itself or by its nationals to: (i) insist on registration of all ocean-
going ships and (ii) to provide by its domestic law, the conditions to be
H
792 SUPREME COURT REPORTS [2017) 6 S.C.R.

A fulfilled before its vessels could.be registered to sail under its flag with
the necessary distinguishing marks. The first provision ever made on
the law of registration, flag and nationality of ships in a multilateral
convention was the result of the deliberations of the Law of the Sea
Conference held in Geneva in 1958. The Geneva Convention on the
B High Seas (1958) scribes the importance of a genuine link between a
ship's owners and its flag state in the following words:-
"Article. 5.
1. Each State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory, and
c for the right to fly its flag. Ships have the nationality of the State
whose flag they are entitled to fly. There must exist a genuine
link between the State and the ship; in particular, the State must
effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag.
D 2. Each State shall issue to ships to which it has granted the
right to fly Hs flag documents to that effect."
8. The principle enshrined in Article 5 of the Geneva Convention
was re-emphasized i.nArti9Ie 91 of the United Nations Conventio.n on
the Law. of the Seas (UNCLOS), 1994. 167 States of the world are
E party to the said convention. Article 91 of UNCLOS reads as under:-
"Article 91.Nationality of ships:-
1. Every State shall fix the conditions for the grant of its nationality
to ships, for the registration of ships in its territory, and for the
right to fly its flag. Ships have the nationality of the State
F whose flag they are entitled to fly. There must exist a genuine
link between the State and the ship.
2. Every State shall issue to ships to which it has granted the
right to fly its flag documents to that effect."
9. There is diversification in the conditions prescribed by the States
G for registration of ships at their ports. The important requisites are,
however, broadly confined to following items, namely,:(i) construction
and origin of ship; (ii) captain, officers and the crew; (iii) ownership of
ships; and (iv) importance of registration and the maritime flag. Law of
registration of ships differs from country to country though the act of
H registration has far reaching legal consequences both nationally and
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 793
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

internationally. The learned author Shri N agendra Singh in pages 17 A
to 21 of the above book refers to the above diversity in the conditions
prescribed by the States for registration of ships, broadly under three
categories, namely:-
(1) The National School 6 Countries which believe in a rigid
law of registration which would firmly tie the ship to the registering B
State not only by construction in its national shipyards and manned
by captain and crew of its nationality but ownership also being
national (Countries like Portugal);
(2) The School of the Relaxed Law 6 Countries which believe
in a relaxed law imposing no conditions on registration and c
permitting foreign nationals to register ships within the national
territories almost on the same basis as its own natiOnals (countries
like Liberia and Panama); and
(3) The Balanced School 6 In between the above two rival
groups, there exists a middle of the road thinking on the subject D
which insists on ownership being in national hands on a majority
basis but imposes no other conditions such as relating to crew or
captain (countries like United Kingdom and India).
10. I have, in .detail, referred to the diversity in the conditions
prescribed by the States in r~gistration of ships; only to emphasize upon E
the importance of registration an~ grant of maritime flag consequent to
the registration. Be it the National School or Relaxed School or Balanced
School, it is the act of the State to register a ship which is very vital. The
significant consequence 'of registration is the establishment of a link
between the ship and the flag state. This link is very vital for the purpose
ofregulating iritei:-state intercoiirse, while a ship voyages from one national F
port to another national port and also while she voyages in the high seas.
Registratfon also casts nationality rights on the ship, thereby conferring
privileges upon the s1lip and responsibilities upon the flag state. If the
nationality of the ship and that of its owner are the· same (as iii. the case
of united Kingdom and' India), the respO!lSibility is indicated by the G
flag which would be decisive in every aspect. On the other hand, if the
ship is registered at Flag' A' State and the owner is of 'B' State (like in
the case of Liberia and Panama) then there arises complications which
we do not like to elabora(e upon as the same is not relevant for the
questions under consideration.
H
•
794 SUPREME COURT REPORTS [2017] 6 S.C.R.

A 11. Registration of ship is a means of bestowing nationality upon
the ship which is an age old practice in maritime industry. By registration
under the M.S. Act, 1958, a ship is recognised as an Indian Ship and
becomes entitled to fly Indian Flag and is thus eligible to claim the benefits,
privileges, advantages or protection enjoyed by Indian Ships under the
B Act. Flag of the ship is the prima facie or visible evidence of registry.
Under customary international law, ships are regarded as part of the
territory of the Flag State-an extension of the country or floating island.
Registration, therefore, operates as a bridge between the ships and the
mainland and extends nationality rights to the Ship; it serves as a legal
institution linking the ship to a State. The flag-state or the State ofregistry,
C has the right to exercise jurisdiction over the ship, is responsible for it
and has the right to protect it. Therefore, there is no gainsaying that
registration of a ship casts serious responsibilities on the registering State.
For this very reason, it is important to ensure that all the requisites for
registration of a ship are strictly complied with, be it an Indian ship or
D ship built abroad entitled to become Indian ship.
The Merchant Shipping Act, 1958
12. The Merchant Shipping Act, 1958 is a comprehensive law
dealing with regulation and control of ships, aiming at promotion of marine
mercantile in a manner best suited to serve the national interest. The
E distinguishing feature of the Merchant Shipping Act, 1958 is that it has
consolidated and codified all laws concerning merchant shipping. One
of the distinct purposes behind the M.S. Act, 1958, is that it laid down
provisions for registration of sea-going ships. Earlier, there was no
provision dealing with the registration of sea-going ships except the
Coasting Vessels Act, 1838 and the Indian Registration of Ships Act,
F 1841, under which only sailing vessels were being registered; other ships
were registered only under the United Kingdom Merchant Shipping Act, ·
1894 and were technically regarded as British Ships. The preamble of
the Act reads as under:-
"An Act to foster the development and ensure the efficient
G maintenance of an Indian Mercantile marine in a manner
best s11{ted to serve the national interests and for that purpose
to establish a National Shipping Board and a Shipping
Development Fund, to provide for tlze registration of Indian
ships and generally to amend and consolidate the law relating
H to mercl1ant shipping."
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 795
. OF MERCANTILE MARINE OEPT. [R. BANUMATHI, J.]

13. The M.S. Act opens by providing for estitblishment and powers A
of National Shipping Board and other authorities, moving towards
registration of ships, certificate of officers, safety mandates to be
observed by ships, security of ships etc. and ends by laying down penalties
in lieu of contravention ofany of the provisions of the Act. The Act also
addresses situations of collisions, accidents at sea and liabilities thereof. B
Provisions of ci vii liability for oil pollution damage and international oil
pollution compensation fund are also not alien to the Act. This shows
that the Act envisions to achieve a safe and regulated framework for
carrying out trade through sea in India. For achieving the said objective,
it is apposite to ensure that the mandate of the Act are strictly complied
with. C
14. Part V of the Merchant Shipping Act deals with registration
of Indian ships. "Indian ship" as per Section 3(18) of the M.S. Act,
essentially means a ship registered under the Act. Sub-section ( 18) of
Section 3 reads as under:-
"3(18)."Indian ships" means a ship registered as such under D
this Act and includes any ship registered at any port in India at the
commencement of this Act which is recognized as an Indian ship
under the proviso to sub-section (2) of section 22."
Although the term 'ship' is not defined in its actual sense, sub-
section (55) of Section 3 of the Act provides that a ship is included E
within the term 'vessel'. Sub-section (55) of Section 3 of the Act defines
the term 'vessel' to include 'any ship', boat, sailing vessel, or other
description of vessel used in navigation'. Further, Section 3(45) of
the Act provides that "ship" does not include a sailing vessel.
15. Part V of the M.S. Act and Registration of Ships Rules, 1960 F
as amended from time to time are concerned with the registration of
Indian ships .. Part V begins with Section 20 of the Act which provides
that Part V applies only to 'sea-going ships fitted with mechanical
means ofpropulsion'. Interpretation of the term 'sea-going', therefore,
becomes very important in the present case. The term 'sea going' is G
defined in sub-section (41) of Section 3 of the Act in the following words:
"3(41)."sea-going", in relation to a vessel, means vessel a
proceeding to sea beyond inland waters or beyond waters declared
to be smooth or partially smooth waters by the Central
Government by notification in the Official Gazette."
H
796 SUPREME COURT REPORTS [2017] 6 S.C.R.

,r .•

A 16. Part V provides for compulsory registration of every Indian
ship, unless it is a ship which does not exceed fifteen tons net and is
employed solely in navigation on the coasts of India, Part V also lays
down detailed procedure for getting a ship registered in India. Section
21 deals with 'Indian ships'. Section 21 reads as under:-
B "21. Indian Ships.- For the purposes of this Act, a ship shall not
be deemed to be an Indian ship unless owned wholly by persons
to each of whom [any] of the following descriptions applies:-
(a) a citizen of India; or
(b) a company or a body established by or under any Central
c or State Act which has its principal place of business in
India; or
(c) a co-operative society which is registered or deemed to be
registered under the Co-operative Societies Act, 1912, or
any other law relating to co-operative societies for the time
D being in force in any State."
Section 22 stipulates obligation to register every Indian ship. Every
Indian ship must, unless exempted, be registered, and any ship which
should be registered, but is not so registered, shall not be recognized as
an Indian ship (Section 22 of the M.S. Act).
E
17. Ships which qualify to be registered are required to be registered
only at ports designated as ports of registry. Section 23 of the Act provides
for 'Ports of registry'. As per Section23 oftheAct, Bombay, Calcutta
and Madras and such ports in India as the Central Government may, by
notification in the official gazette declare to be ports of registry under
F the M.S. Act are the Ports at which registration of ships shall be made.
Section 24 provides for 'Registrars of Indian ships' and Section 25
provides for 'Register book' to be maintained by every registrar. In
their capacity as registrar of Indian ships, the principal officers are
required to maintain a complete record of ships on the register indicating
G status of the ship on a particular date. A central register is maintained by
the Director General of Shipping, which contains all the entries recorded
in the register books kept by the registrar at the port of registry in India.
18. Section 26 deals with 'Application for registry of Indian
ships'. Section 26 reads as under:-
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 797
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

"26. Application for registry - An application for the registry A
ofan Indian ship shall be made:-
(a) in the case of an individual, by the person requiring to be
registered as owner or by his agent;
(b) in the case of more than one individual requiring to be so
registered, by some one or more of the persons so requiring B
or by his or their agent; and
(c) in the case of a company or a co-operative society requiring
to be so registered, by its agent,
and the authority of the agent shall be testified by writing, if c
appointed by an individual, under the hand of the person appointing
him and, if appointed by a company, or a co-operative society
under its common seal."
19. Rule 3 of Merchant Shipping (Registration of Indian Ships)
Rules, 1960 deals with documents to accompany application for registry. D
As per Section 26 and Rule 3, application for registry has to be
accompanied by the following documents:-
"3. Documents to accompany application for Registry-
(a) the declaration of ownership;
(b) the builder's certificate, that is to say, a certificate signed by E
the builder of the ship and containing a true account of the
proper denomination and ofthe tonnage of the ship as estimated
by him and the time when and the place where she was built.
(c) if the ship has been purchased, the instrument of sale under
which the property in the ship was transferred to the F
applicant. .. "
20. Section 27 envisages survey and measurement of ships before
registry. Section 27 reads as under:- · ·
"27. Survey and measurement of ships before registry- (1) 0
The owner of every Indian ship in respect of which an application
for registry is made shall cause such ship to be surveyed by a
surveyor and the tonnage of the ship ascertained in the prescribed
manner.

H
798 SUPREME COURT REPORTS [2017] 6 S.C.R.

A (2) The surveyor shall grant a certificate specifying the ship's
tonnage and build and such other particulars descriptive of the·
identity of the ship as may be prescribed and the certificate of the
surveyor shall be delivered to the registrar before registry."
21. Section 28 provides for "Marking of ship" and Section 29
B provides for "Declaration of ownership on registry". Sections 28
and 29 read as under:-
"28. Marking of ship- (1) The owner of an Indian ship who
applies for registry under this Act shall, before registry, cause her
to be marked permanently and conspicuously in the prescribed
c manner and to the satisfaction of the registrar and any ship not so
marked may be detained by the registrar.
(2) Subject to any other provision contained in this Act and to that
provisions of any rules made thereunder, the owner and the master
of an Indian ship shall take all reasonable steps to ensure that the
D ship remains marked as required by this Section, and the said
owner or master shall not cause or permit any alterations of such
marks to be made except in the event of any of the particulars
thereby denoted being altered in the manner provided in this Act
or except to evade capture by the enemy or by a foreign ship of
war in the exercise of some belligerent right.
E
29. Declaration of ownership on registry-A person shall not
be registered as the owner of an Indian ship or of a share therein
until he or, in the case of a company or a co-operative society, the
person authorised by this Act to make declarations on its behalf
has made and signed a declaration of ownership in the prescribed
F form referring to the ship as described in the certificate of the
surveyor and containing the following particulars:-
(a) a statement whether he is or is not a citizen of India; [or in
the case of a company or a co-operative society, whether the
company or the co-operative society satisfies· the
G requirements specified in clause(b) or, as the case may be,
clause (c) of Section 21 ];
(b) a statement of the time when and the place where the ship
was built or ifthe ship is built outside India and the time and
place of building is not known, a statement to that effect; and
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 799
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

in addition, in the case of a ship previously registered outside A
India a statement of the name by which she was so registered;
( c) the name of her master;
(d) the number of shares in the ship in respect of which he or the
company [or the co-operative society], as the case may be;
claims to be registered as owner; and B

(e) a declaration that the particulars stated are true to the best of
his knowledge and belief.
Explanation- In respect of a ship or share owned by more than
one person, a declaration may be made by such one of them as C
may be authorised by them."
22. As per Rule 5, after the Registrar has satisfied himself as to
the evidence of ownership, he shall cause the ship to be surveyed.
Rule 6 deals with 'Survey of Ships outside India'. Rules 5 and 6 read
as under:- D
"5.Survey and Measurement - After the registrar has satisfied
himself as to the evidence of ownership he shall cause the ship to
be surveyed by a surveyor and her tonnage ascertained in
accordance with the Merchant Shipping (Tonnage Measurement
of Ships) Rules, 1960. Thereafter, the surveyor shall grant a E
certificate of survey in respect of the ship.
6. Survey Qf ships at ports outside India - Where it becomes
necessary for a ship to be surveyed for purposes of registration at
a port outside India, the Director General may depute a surveyor
or request the government of the country where the ship is lying F
to appoint a qualified surveyor to survey the ship for the issue of
a certificate of survey."
23. Rules 9 and 10 deal with 'Carving and Marking Note' and
'Marking of ships' which read as under:-
"9. Carving and Marking Note - Where in respect of a ship G
an official number has been allotted and the name approved by
the Director General and the certificate of survey granted by the
surveyor, the registrar i;hall issue to the owners a Carving and
Marking Note which shall be returned to the registrar after the

H
800 SUPREME COURT REPORTS [2017] 6 S.C.R.

A carving and marking have been duly carried out and certified by a
surveyor.
10. Marking of ships - Every ship shall, before registry, be
marked permanently and conspicuously to the satisfaction of the
registrar as follows -
B (a) her name shall be marked on each of her bows, and her name
and the name of her intended port of registry shall be marked
on her stern, on a dark background in white or yellow letters
or on a light background in black letter which shall be not
less than one decimeter or four inches in height and 1.3
c centimeters or half an inch in breadth.
(b) her official number and the number denoting her registered
tonnage shall be cut in on her main beam.
(c) Her scale of draught marks shall be cut or welded in feet and
inches and in metres and decimeters in two columns side by
D side both forward and aft on the port and star board side
respectively. The relative position of the two rows of markings
should be separated by a reasonable distance in order to avoid
errors in reading them.
In the case of modern type of ships having a raked soft stem and
E cruiser stern, the marks shall be cut in or welded as close and aft
of the stem as possible following the contour of the stem. The
marks aft or at the stern shall be cut a few feet forward of the
after perpendicular in two columns parallel to each other. "
24. Section 30 deals with production of evidence on the first registry
F of an Indian ship in addition to declaration of ownership. Section 30
reads as under:-
,"30. Evidence on first registry :-- On the first registry of an
Illdian ship, the following evidences.hall be produced in addition
to the declaration of ownership:-
G {a) in the case ofa ship built in India, a builder's certificate, that
is to say, a certificate signed by the builder of the ship and
containing a true account of the proper denomination and the
tonnage of the ship as estimated by him and the time when
and the place where she was built, and the name of the person,
H if any, on whose account the ship was built; and if there has
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 801
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

been any sale, the instmment of sale under which the ship or A
the share therein has become vested in the applicant for
registry;
(b) in the case o.f a ship built outside India, the same evidence as
in the case of a ship built in India unless the declarant who
·makes the declaration of ownership declares that the time B
and place of her building are not known to him, or that the
builder's certificate cannot be procured, in which case there
shall be required only the instniment of sale under which the
ship or a share therein has become vested in the applicant for
.registry."
25. Registration of a ship built in India: Section 26 authorises C
the owner of the ship or his agent to move an application for the
registration of an Indian ship. By a combined reading of Section 26,
Rule 3 all.d other provisions for registration and Checklist-I issued by
MMD, it emerges that, for registration of a ship built in India, an applicant
has to submit following documents to the concerned registry:- D
(a)A declaration of ownership - As per Rule 4, every
declaration of ownership shall be made before a registrar, a
Justice of the Peace, a Commissioner of Oaths, oran Indian
Consular Officer in one or the other prescribed forms, as
may be applicable, depending upon whether he is a sole E
proprietor, joint owner or a company;
(b)Builder's Certificate - A certificate signed by the builder
() of the ship containing a true account of the proper
denomination and of the tonnage of the ship as estimated by
him and the time, when and the place where the ship was
built, (for new ship as per Forms 3, 4 and 5); F
(c)Secondhand Ships 6 If the ship has been purchased, the
instmment of sale under which the property of the ship was
transferred to the applicant, who requires it to be registered
in his name;
G
(d)Name proposed for the ship 6 To give a minimum of 14
days notice to the registrar of the name proposed for the
ship. The registrar before registering the vessel in the name
of the applicant shall obtain prior approval of the name from
the Director General of Shipping who will also allot an official
number for the ship." (Rule 7) H
802 SUPREME COURT REPORTS [2017] 6 S.C.R.

. .

A 26. Title/ownership of the ship is very vital for registration.oflndian
ship. Section 33 deals with "Power of Central Governmentto inquire
into the title of Indian ship to be so registered". Section 33 reads
as under:-
"33. Power of Central Government to inquire into title of
B Indian ship to be so registered- ( 1)Where it appears to the
Central Government that there is any doubt as to the title of any
Indian ship to be registered as an Indian ship, it may direct the
registrar of her port ofregistry to require evidence to be given to
his satisfaction within such time, not being less than thirty days as
the Central Government may fix, that the ship is entitled to be
c registered as an Indian ship.
(2) If within such time as maybe fixed by the Central Government
under sub-section ( 1) evidence to .the satisfaction of the registrar
that the ship is entitled to be registered as an Indian ship is not
given, the ship shall be liaqle to forfeiture."
D
Section 33 makes it clear that the title/ownership of Indian ship is
very vital. As per Section 33(2), if the evidence is not given to the
satisfaction of the registrar within the time fixed by the Central
Goverruilent, the ship shall be liable to forfeiture.

E 27. Section 34 deals with Grant of Certificate of registry of
an Indian ship, which reads as under:-
"Grant of certificate of registry. 6 On completion of the registry
of an Indian ship, the registrar shall grant a certificate of registry
containing the particulars respecting her as entered in the register
book with the name of her master."
F
28. Rule 11 deals with issuance of certificate of registry which
reads as under:-
"11. Issue of Certificate of Registry - On completion of the
preliminaries to registry, the registrar shall enter the particulars of
G the ship in the register book and issue to the owners a certificate
of registry."
29. The purpose of registration is to keep the vessel identified
throughout its operational life. Registration of a ship acts as a proof of
the following:-
H
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 803
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

(a) The ownership of the vessel; A
(b) The exact type of the vessel with its dimension and
specifications for which the vessel is surveyed and measured
and any alterations in engine or hull;
·(c) distinguishing marks of the vessel by way of its name, number
so that identity of the ship is fixed and known. B
30. Ifwe carefully analyse the provisions of Part V of the Act, in
the context of the definitions of important terms contained in Section 3
of the Act, ~e find that "ownership" of the ship is central to the scheme ..
As per Section 21 oft.he Act for the purpose of this Act, a ship shall
not be deemed to be an Indian ship unless owned wholly by persons. C
to each ofwhom the description in Section 21 clauses (a) to (c) applies.
The inevitable corollary is that the ship shall be deemed to be an fudian
ship, if it is Wholly owned by the persons who are the citizens offudia or
qualify under clause (b) or (c) of Section 21. However, such a proposition
· Cannot hold good as status of an fudian ship can be obtained only by D
cqmplying with the procedure for registration of ship, laid down in the
Act and Rules. Therefore, 'ownership by an Indian' is a pre-requisite of
provisional as well as final registration. Forms 3 to 5 contained in Schedule
I to 1'960 Rules deal with Declaration of Ownership by fudividuals,
Declaration of Ownership by Joint Owners and Declaration of Ownership
on behalf of a company respectively. As per Section 27, 'the owner of E
every Indian ship' in respect of which an application for registry is
made shall cause such ship to be surveyed by a surveyor. 'The owner
of an Indian ship' who applies for registry under the Act shall, before
registry, under Section 28 mandate marking of the ship permanently.
Section 29 directs the owner of the vessel to furnish a declaration of F
ownership of the ship containing, inter alia, specification of the time
and place where the ship was built. Section 30 mandates filing of a
builder's certificate with the particulars of the ship, like proper
denomination, tonnage etc. as indicated in Section 30. A careful analysis
of the provisions of Part V of the Act, in particular Section 20 to Section
32, makes it clear that ownership of the ship and completion of G
construction of the ship i.e. the ship being 'fully built' are central to
Part V.
31. The upshot of the above discussion is that the essentials of
permanent certificate of registry are as under:-
H
804 SUPREME COURT REPORTS [2017] 6 S.C.R.

A (i) The ownership of the ship in terms of Section 21 of the Act;
(ii) The ship must be fully built; and
(iii) Other requireinents as stipulated under Sections 23 to 32.
As discussed earlier, title of the ship must be pertinently looked
into while registering it. As per Section 33, where it appears to the
B Central Government that there is any doubt as to the title of a ship to be
registered as an Indian Ship, after inquiry, the Central Government shall
direct that the title document to be produced before the Registrar of port
ofregistry and if not furnished within the stipulated time, the ship shall
be liable to forfeiture.
c 32. Registration of an Indian ship acquired abroad:- Section
40 of the Act provides for provisional registration of the ship which shall
have the effect of certificate ofregistry of the ship until the expiration of
six months or until the arrival of the ship at the port. Section 40 has
been borrowed from Section 22 of the English Merchant Shipping Act,
1894 with a little modification. Section 40 reads as under:-
D
"40. Provisional certificate for ships becoming Indian ships
abroad - ( 1) If at any port outside India a ship becomes entitled
to be registered as an Indian ship, the Indian consular officer there
may grant to her master on his application a provisional certificate
containing such particulars as may be prescribed in relation to the
E ship and shall forward a copy of the certificate at the first
convenient opportunity to the Director General.
(2) Such a provisional certificate shall have the effect of a
certificate of registry until the expiration of six months from its
date or until the arrival of the ship at a port where there is a
F registrar whichever first happens, and on either of those events
happening shall cease to have effect."
'
33. If a ship is built or acquired abroad and becomes the property
of persons qualified to own an Indian ship, Rule 12 of 1960 comes into
play. Rule 12 reads as under:-
G "12. Acquisition of ships abroad - ( 1) If any ship is built or
acquired out oflndia and becomes the property of persons qualified
to own an Indian ship, the owner or master of the ship shall apply
to the Indian Consular Officer at the nearest port for the issue of
a provisional certificate oflndian registry and such officer may,
on production of satisfactory proof of ownership, grant the same
H to the owner or master."
HALLIBURTON OFFSHORE SER. INC v. PRINCWAL OFFICER 805
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

34. Section 40 and Rule 12 go hand-in-hand for grant of A
"Provisional certificate for ships becoming Indian ships abroad".
As per Section 40 of the Act, a vessel entitled to become an Indian ship·
is issued a Provisional certificate of registration, valid for six months. An
analysis of Section 40 of the Act in consonance with other provisions of
the Act and the Rules made thereunder and the circular issued would
B
bring forth the requisites for validly obtaining a PCOR for ship acquired
abroad, for registering as an Indian ship under the Act. In order to
acquire a provisional certificate ofregistration for ships becoming Indian
Ships abroad, following conditions must be satisfied:
(a) The ship is built or acquired out of India;
c
(b) The ship becomes property of persons qualified to own an ·
Indian ship and is entitled to be registered as an Indian
ship.
(c) The owner or master of the ship applies to the Indian Consular
Officer at the nearest port for the issue of a provisional D
certificate oflndian registry.
(d) The ship is sea-going, fitted with mechanical means of
propulsion. [Ref: Section20 of the Act]
On production of satisfactory proof of ownership and of other
requisites, the Indian Consular Officer may grant the Provisional E
certificate of registry to the owner or master of the ship. ·
35. Section 40 provides for grant ofpermanent certificate ofregistry
(PCOR) for ships becoming Indian ships abroad. Section 40 occurs in
Part V of the Act. Part V of the Act deals with "Rf!gistration ofIndian
Ships". As noticed earlier, Part V applies only to "sea-going ships" F
fitted with mechanical means of propulsion. The term "sea going" is
defined in Section 3 (41) as under:-
"sea-going", in relation to a vessel, means a vessel proceeding to
sea beyond inland waters or beyond waters declared to be smooth
or partially smooth waters by the Central Government by G
notification in the Official Gazette."
Thus, as per sub-section (41) of Section 3, for obtaining PCOR
for ships becoming Indian Ship, the ship must be 'sea-going' that is
proceeding to sea beyond inland waters or beyond waters declared to
be smooth or partially smooth waters by the Central Government. In H
806 SUPREME COURT REPORTS [2017) 6 S.C.R.

A other words, to proceed into the sea beyond inland waters or beyond
waters declared to be smooth, the ship must be fully built.
36. Checklist-I for Registration of Merchant Ships issued by
MMD, Serial No.4 deals with Provisional registry which reads as under:-
"4. Provisional Registry: On request of owner, the RoS can
B authorise the Consular Officer/MMD/IRS to verify the required
documents, witness the markings on board the vessel as per C &
M Note and issue provisional certificate ofregistry irrespective
of age or location of the vessel."
37. The circular issued by the Marine Department (MMD) on
C 28.08.2008 deals with the modified procedure for registration of a vessel
under the Act. Para 5 of the said circular deals with permanent/ provisional
registry. Para 5 reads as under:- ·
"Permanent/ Provisional Registry:
Application for Registry as per Checklist No. 1 (Available on
D MMD website) alongwith an online application in DGS and
MMD site.
• Alternatively a provisional Certificate of Registry can be issued
to the vessel for six months, if the vessel is abroad or if the
documents are not complete as per the requirements.
E • For provisional Certificate ofRegistry, the documents required
are i) An application, ii) Original Carving & Marking duly
verified by the Surveyor, iii) Certificate of Survey, iv) Original
Board Resolution for a company or signed by all the partners
for Partnership Firm, v) Original Declaration of Ownership
duly signed before Principal Officer, vi) Original Bill of Sale
F for a second hand vessel or Original Builder's certificate for
a new ship.
• When the Vessel is abroad and a Provisional certificate of
Registry (PCOR) is to be issued for taking delivery, the owner
has to apply for a blank Provisional Certificate of Registry
G (online & hard copy- Fees Rs. I 00/-. A separate application
to be made to instruct the class for issuance of PCOR giving
date and place of delivery and a copy of Memorandum of
agreement."
On a perusal of the above guidelines/instructions, it is clear that PCOR
H is issued for a ship fully built. Unless, a ship is fully built, it may not be
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 807
OF MERCANTILE MARINE DEPT. [R. BANUMATHI, J.]

possible to produce original Builder's Certificate, because Section 30 of A
the Act requires that Builder's Certificate must contain particulars of
the ship like proper denomination, tonnage etc.
38. Sub-section (2) of Section 40 provides that a provisional
certificate obtained under sub-section ( l) of Section 40 shall have the
effect of a certificate of registry until the expiration of six months B
from its date or until the arrival of the ship at a port where there is
a registrar whichever first happens. Section 40(2) of the Act thus
provides for Provisional registration of the ship which shall have the
effect of final registration of the ship until the expiration of six months
or until the arrival of the Ship at the port where there is a registrar,
whichever happens first. Therefore, it becomes very important to ensure C
that all the requisites for obtaining a permanent registration under the
Act are mandatorily satisfied in case of provisional registration as well.
It is unconceivable how a ship can be provisionally registered,_conferring
status of a permanently registered ship, even though for a limited period
of time, without ensuring that the owner of the ship is an Indian and the D
ship is fully built and ready for delivery so as to sail from foreign port to
Indian port. In terms of sub-section (2) of Section 40 of the Provisional
certificate of registry has the effect of Certificate of registry, the requisites
for permanent registration of a ship must be fulfilled for provisional
registration also.
39. The sole purpose of getting a provisional registration for a E
ship built abroad, is to enable it to travel to port of registry in India and
obtain permanent registration in India after completion of other statutory
formalities. Suppose, if the ship is owned by a foreign national and the
ship is not fully built to navigate and sail to Indian port through High
Seas, and still a PCOR is granted under the Act, the ship would not be F
able to voyage to Indian port of registry and acquire all the necessary
certificates for obtaining a permanent registration within the requisite
period of six months. In such a case, the Provisional certificate of registry
shall cease to have effect. If PCOR is to be granted even to a ship not
fully built, then the mandatory prescription of six months period will be
meaningless. G
40. If PCOR is granted to a partially built ship or incomplete ship,
consequences will be serious. In such a state of affairs, the ship will
enjoy the status of an Indian Ship with all the privileges, like claiming
preference for contracts/tenders etc. That apart, for all the mishaps either
on the high seas or in ports concerning the said ship, Indian Government H
808 SUPREME COURT REPORTS [20111 6 s.t.R.

A will be responsible. In no case, the legislature could have intended to lay
down such a law as envisaged in the above proposition. While enacting
Section 40, clearly the intent of the legislature was to enable an Indian
Ship to reach safely at Indian port and thereafter obtain a permanent
certificate of registration by complying with other statutory requirement
as prescribed under the Act, within six months.
B
41. The above view i.e. for obtaining PCOR the ship must be
fully built, is also fortified by the provisions made in the Rules with respect
to details to be furnished for PCOR. Form 14 contained in Schedule I
of 1960 Rules which deals with Provisional certificate of Indian
registry, reads as under:-
c "Registry Form No.14
PROVISIONAL CERTIFICATE OF INDIAN REGISTRY
(Merchant Shipping Act, 1958, Section 40 (1))

D
D Expiry on or before the ...... day of ......... 19 ..... (see footnote)

Issued by the
Government oflndia
Name of ship (a) ·where and when Built Steam or Motor Ship,
how propelled,

E Number of Decks ........... . Framework and description of ship
Number of Masts Number of Bulkheads
Rigged
Stem
Stern
Number of water ballast tanks and
F Their capacity in tons.
Build
MEASUREMENI'S FEET TENTHS METRES

length from the fore part of stem to the aft side of the head
of the stem post
G Main breadth to outside of planting
Depth in hold from tonnage deck to celling amidships
Length of engine room

Number of engines .................................. .
Combined Horse Power ..................... .
H Name and address of engine maker ................ .
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 809
OF MERCANTILE MARINE DEPT. (R. BANUMATHI, J.]

PARTICULARSOFTONNAGE A
Gross Tonnage No. of Cubic Deductions Allowed No. of
Tons Metres Tons
Under tonnage deck space or On account of space
spaces between decks required for propelling
Turret or trunk power

Forecastle
B
Bridge space
Poop or break
Side houses
Deck houses
Chart Houses
Spaces for machinery
and light and air
Excess of hatchways Other c
deductions
Gross tonnage }

Deductions, as per cdntra Register
tonnage
Total

NOTE I: The tonnage of the engine room spaces below the upper deck is ........... Tons D
and the tonnage of the total spaces framed in above the upper deck for propelling
machinery and for light and air is .......... tons.
NOTE 2: The undermentioned spaces above the upper deck are not included in the
cubical contents forming the ship's registel'tonnage-
NOTE3: The location and tonnage of the boatswains store rooms are as
follows ..................................................................................... . E
I, undersigned ........................ .Indian Council at the Port of................ .
.. .. ..... .. .. .. . .. .. . hereby certify:-
!. That the ship, the description of which is prefixed to this my Provisional
Certificate, has been duly surveyed, and that the above description is true(b)
2.That.. ............ of.. ........... .is Master of the said Ship.
3. That the peraon or persons whose names are hereunder written purchased at F
........... on the ................ dayof .......... 19 ....... .
.or
3.That the ship was built at ............ on account of the person or peraons
whose names are hereunder written.
Name. Residence and Occu ation of the owner N um bcr of Tenth Shares

G
Dated at.. ........ the ........ day of.. .......... one thousand nine hundred
and ...................... .Indian Consul.
NOTE ..... This Provisional Certificate ofRegistry, issued under the provisions of Section
40(1) ofthe Merchant Shipping Act, 1958, continues in force only until the ........... day
of.. ..... 19 ........ or until the Ship completes her voyage form ......... To some port
where there is a Registrar oflndian Ships, whichever first happens. H
810 SUPREME COURT REPORTS [2017] 6 S.C.R.

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
D
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
E 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
HALLIBURTON OFFSHORE SER. INC v. PRINCIPAL OFFICER 811
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.
45. The provisions relating to registration and safety of the ships D
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 E
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 F
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.
46. 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
812 SUPREME COURT REPORTS [2017] 6 S.C.R.

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.
48. 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.