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MEANING OF MARITIME LAW
➢ The body of law governing marine commerce and navigation, the
carriage at sea of persons and property, and marine affairs in
general- Blacks Law Dictionary, 10th Edition.
➢ The entire body of laws, rules, legal concepts and processes that
relate to the use of marine resources, ocean commerce navigation.- Thomas J. Schoenbaum, Admiralty and Maritime Law,
2nd Edition, Vol. 1, St. Paul, Minn., West Publishing Co., 199
MARITIME LAW AND ADMIRALTY LAW -ANY
DIFFERENCE?
➢ Today the two terms are often used interchangeably, but at one time they were not one
and the same.
➢ The term Admiralty Law originally referred to the body of law including procedural
rules developed by the English Courts of Admiralty, in their exercise of jurisdiction over matters pertaining to the sea.
➢ The distinction between the two types of law faded with time, and both terms are used interchangeably today.
LEGAL FRAMEWORK/MARITIME LEGISLATIONS IN NIGERIA
➢ Maritime Law in Nigeria is essentially governed by the Merchant
Shipping Act (MSA) 2007 and the Admiralty Jurisdiction Act 1991 (AJA)
Act.
➢ Other key Maritime Legislations in Nigeria include:
❖ Nigerian Maritime Administration and Safety Agency (NIMASA) Act 2007.
❖ Coastal and Inland Shipping (Cabotage) Act No.5 2003
➢ In addition, some other legislations such as the Nigerian Ports Authority
Act 2004 and the Carriage of Goods by Sea Act 2004 govern specific
areas such as ports and carriage of goods by sea.
➢ Generally, the 1999 Constitution of the Federal Republic of Nigeria (1999 Constitution), the AJA 1991 and the Admiralty Jurisdiction Procedure Rules
2011 made pursuant to the AJA 1991 provide the framework for admiralty jurisdiction and court practice.
The MERCHANT SHIPPING ACT (MSA)2007
➢ The MSA 2007 contains the body of laws for merchant shipping and other related matters in Nigeria.
➢ It is the principal law that governs ship collisions in Nigeria. Section 338-344 makes provisions for liability in collision cases.
➢ The MSA Establishes provisions to ensure that all ships operating commercially in or from Nigerian Waters are either registered or licensed in Nigeria or registered by the law of a country other than Nigeria as a ship of that Country. Section 5.
➢ It creates a Central Ship Registry, for the registration and licensing of Nigerian Ships. Section 16.
➢ Provides qualifications for owning Ships in Nigeria. Section 18.
➢ Prescribes penalty for sending unseaworthy ships to sea.
➢ Makes provisions on maritime liens on ships (section 67), transfer or transmission of ships (section 79, 80), welfare of seamen (section 176-197), rules to be complied with in construction of ships in Nigeria (section 250-254), obligations to assist vessels in distress (section 274)
➢ The Agency of Government established and responsible for maritime safety, administration and security is responsible for implementing the provisions of the Act. Section 2 of the MSA. The agency responsible for maritime safety and administration in Nigeria is NIMASA.
NIGERIAN MARITIME ADMINISTRATION AND
SAFETY AGENCY (NIMASA) ACT 2007
➢ The Nigerian Maritime Administration and Safety Agency (NIMASA) is established by the
NIMASA Act 2007 primarily to superintend the holistic but systematic implementation of the
National Shipping Policy; the Nigerian Maritime Labour Policy; the Cabotage law and the
Nigerian Merchant Shipping Laws which are all geared towards the development of the Nigerian Maritime Sector.
➢ The functions of NIMASA under the Act include:
❖ Administering the registration and licensing of ships;
❖ Establish Maritime training and safety standards;
❖ Regulate the safety of ships as regards construction of ships and navigation;
❖ Provide search and rescue services;
❖ Control and prevent marine pollution;
❖ Enforcement and administer the provisions of the Cabotage Act 2003;
❖ Provide maritime security. See section 22;
➢ By and large NIMASA is responsible of implementation of the MSA 2007 and Cabotage Act.
The Agency may detain any ship which it considers to be unsafe, a security risk, and is unfit
to proceed to sea without serious danger to human life. See section 40
COASTAL AND Inland SHIPPING (CABOTAGE) Act NO.5 2003
➢ Cabotage is the carrying on of trade along a country’s coast; the transport of goods and passengers from one port or place to another in the same country. See Black’s Law Dictionary, 10th Edition. See also section 2 of the Cabotage Act.
➢ The Cabotage Act was established to restrict the use of foreign vessels in domestic coastal trade. It seeks to restrict vessels in domestic coastal trade for the purpose of reserving cabotage trade for Nigerian citizens only. See section 3 and 6. The general aim is to empower local operators in the maritime industry in Nigeria.
➢ For a foreign owned vessel to be allowed to participate in cabotage trade in Nigeria, an application must be made to the Minister for a license by a person resident in Nigeria but acting on behalf of the foreign owned vessel.
➢ Also requires every vessel intended to be used for domestic coastal trade to be registered and to obtain all necessary licenses. Section 22.
➢ Establishes the Cabotage Vessel Financing Fund, to promote the development of indigenous ship acquisition capacity by providing financial assistance to Nigerian operators in domestic coastal shipping. See section 42.
CARRIAGE OF GOODS By SEA ACT (COGSA) 2004
➢ Nigeria is a party to the Hague Rules-Unification of Certain Rules Relating to Bill of Lading 1924, which has been incorporated into domestic legislation as the Carriage of Goods by Sea Act (COGSA)2004.
➢ The COGSA regulates the carriage of goods by sea in ships from any port in Nigeria to any other port whether in or outside Nigeria. It covers only outgoing cargo and not imports.
➢ Provides for rights and liabilities in respect of loss or damage to goods on board a ship. Essentially regulates relations between shippers and consignees.
➢ Nigeria subsequently ratified the Hamburg Rules, which were implemented through the UN Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act 2005. The Hamburg Rules however, did not repeal the COGSA. Both laws are concurrently in force in Nigeria. However, in the absence of an agreement between the parties, the Hamburg Rules automatically apply in relation to inward and outward carriage of goods to and from Nigeria.
INTERNATIONAL MARITIME LAWS AND CONVENTIONS
➢ In relation to carriage of goods by sea, the United States of America (USA), England, India and Canada all apply the Hague Rules domesticated as state
laws in their various territories and similar to the COGSA 2004 applicable in
Nigeria.
➢ Carriage of Goods by Sea Act 1936 is applicable in USA whilst Carriage of Goods by Sea Act 1971 is applicable in England. In Canada and India, the relevant legislations are the Carriage of Goods by Water Act 1985 and the
Indian Carriage of Goods by Sea Act 1925 respectively.
➢ The Merchant Shipping Act 1995 and the Merchant Shipping Act 1958 regulate merchant shipping and other related matters in England and India respectively.
These laws have similar provisions with Nigeria’s MSA 2004.
➢ Cabotage trade in USA is governed by the Merchant Marine Act 1920
(popularly known as “Jones Act”). The Jones Act, just like the Nigeria’s
Cabotage Act 2003 prohibits foreign vessels from engaging in domestic coastal
trade. Brazil (Law No 9432/97) and India equally have similar policies on domestic coastal trade. India’s cabotage rules are contained in sections 406 and 407 of the Merchant Shipping Act 1958.
INTERNATIONAL MARITIME LAWS AND CONVENTIONS (Cont’d)
➢ There are quite a lot of international Maritime conventions. Notable amongst
these conventions are:
❖ International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (The Hague Rules or Brussels Convention 1924)
❖ The United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules 1968)
❖ International Convention Relating to the Arrest of Sea-Going Ships(Brussels 1952)
❖ Convention for the Unification of Certain Rules of Law with respect to Collisions
between Vessels (Brussels 1910)
❖ Convention on Limitation of Liability for Maritime Claims (London 1976)
❖ International Convention on Maritime Search and Rescue (Hamburg 1979)
INTERNATIONAL MARITIME LAWS AND CONVENTIONS (Cont’d)
➢ The Hague Rules have been adopted as national laws by most countries. Nigeria (1926); Norway (1938); USA (1936) and Singapore (1972).
ADMIRALTY JURISDICTION IN NIGERIA
➢ Admiralty jurisdiction is the authority, power or jurisdiction of courts
to adjudicate over maritime cases.
➢ Section 251(1) (g) of the 1999 Constitution of the Federal Republic of
Nigeria (1999 Constitution) confers exclusive jurisdiction on the Federal High Court to hear and determine admiralty disputes in
Nigeria.
➢ In addition to the provision of the Constitution of the Federal
Republic of Nigeria, section 7 of the Federal High Court Act and section 1(1)(a) of the AJA 1991 confer on the Federal High Court the
jurisdiction to hear and determine any question relating to a proprietary interest in a ship or any admiralty claim specified in
section 2 of the AJA Act 1991
EXTENT OF THE ADMIRALTY JURISDICTION OF THE FEDERAL HIGH COURT.
➢ Section 1 of the AJA 1991 sets out the extent of THE jurisdiction of the Federal High Court (the “FHC”).
➢ The Admiralty jurisdiction of the FHC under the AJA 1991 includes amongst others:
❖ the jurisdiction to hear and determining any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in section 2 of the Act;
❖ any matter arising from shipping and navigation on any inland waters declared as nation waterways;
❖ any matter arising within a Federal port or national airport and its precincts, including claims for loss of or damage to goods;
EXTENT OF THE ADMIRALTY JURISDICTION OF THE FEDERAL High COURT (Cont’d)
➢ Under the AJA 1991 any agreement, monetary or otherwise,
connected with or relating to carriage of goods by sea whether the
contract of carriage is executed or not shall be within the admiralty jurisdiction of the Court. Section 1(3).
➢ The above provision has engendered debates and controversy in
the Legal community as to whether the FHC has exclusive jurisdiction
over simple contracts for carriage of goods by sea since jurisdiction
over simple contracts falls within the jurisdiction of the State High Court.
➢ Section 1(2) provides that the admiralty jurisdiction of the FHC in
respect of carriage and delivery of goods extends from the time the
goods are placed on board a ship for the purpose of shipping to the
time the goods are delivered to the consignee or whoever is to receive them whether the goods were transported on land during
the process or not.
EXTENT OF THE ADMIRALTY JURISDICTION OF THE FEDERAL HIGH COURT (Cont’d)
➢ The AJA also confers jurisdiction on the FHC in respect of claims by master and members of the crew of a ship for wages and other related claims. See section 2(3)(r).
➢ The above provision vests jurisdiction over maritime labour matters on the FHC. Exclusive jurisdiction over labour matters has already been conferred on the National Industrial Court (NIC) by section 254(c) of the 1999 Constitution.
➢ There is an ongoing debate as to whether the FHC and the NIC both have concurrent jurisdiction over maritime labour claims or whether one has jurisdiction to the exclusion of the other.
PROPRIETARY MARITIME CLAIM AND GENERAL MARITIME CLAIM
➢ Under the AJA 1991, maritime claims are divided into proprietary
Maritime claim and general Maritime claim. See section 2
➢ Proprietary Maritime claims usually give rise to ‘claims in rem’ (i.e
against the property, in this case, the ship) while general Maritime claims are essentially ‘claims in personam’(i.e against the person or
owner of the ship) However, it is important to note that a general
Maritime claim may be in personam or in rem. Also a proprietary maritime claim may be brought in personam. See section 5(1).
➢ Proprietary Maritime claims are claims relating to possession of a
ship, ownership of a ship, mortgage of a ship, a claim for
enforcement of a judgment against a ship. See section 2(2).
➢ General maritime claim on the other hand includes claims for
damage done by a ship, claims for loss of life or personal injury
sustained due to defect in a ship, a claim for loss or damage to goods carried by a ship. See Section 2(3).
➢ Section 5(2) specifics the circumstances where an action in rem in
relation to proprietary maritime claims can be brought. Essentially, an action in rem may be brought with respect to claims relating to
possession of a ship, ownership of a ship or mortgage of a ship. This is
because the claims in those cases are inextricably tied to the ship.
➢ Section 5(3) provides for the institution of an action in rem in respect
of Maritime liens. These are liens for salvage, damage done by a ship, wages of master and crew and masters disbursements. This is because maritime lines follow the vessel, even if the vessel is sold or
transferred.
➢ Before an action in rem can be brought against a ship in relation to claims not falling within the cases mentioned in Section 5(2) and (3), the Plaintiff must show that:
❖ At the time the action is brought, the person liable on the claim is either the beneficial owner of that ship in respect of all shares in it or the charterer of the ship under a charter by demise.
❖ These provisions are important because they ensure that a person in temporary occupation of a ship cannot cause the vessel to be alienated due to loss caused to a third party.
ARREST OF SHIPS
➢ When there is a Maritime lien over a ship, or in a cases where there exists a right of action in rem, the vessel can be arrested and brought to the control of the FHC to legally enforce the maritime claims.
➢ The arrest of the ship follows a unique procedure as provided under the Admiralty Jurisdiction Procedure Rules (AJPR) 2011.
➢ Such a ship to be arrested must be within the jurisdiction of the Court or is likely to arrive at the jurisdiction within 3 days.
➢ To apply for a warrant of arrest for a ship, the applicant must have instituted an action by filing in court, a Writ of Summons, Statement of Claim, Motion Exparte supported with an affidavit.
➢ The applicant must give an undertaking for damages in favour of the other party if it turns out the arrest was fraudulent or frivolous or the court ought not to have issued the warrant.
CONCLUSION
The Laws discussed are by no means exhaustive on the topic. Mastery
of Nigerian Maritime practice requires continuous research, studies and
involvement in the Maritime industry.
About the Author
Chimezie Onuzulike is a Legal Practitioner with G. Elias & Co. He has over the years garnered experience in Corporate and Commercial Litigation, Banking Law and Practice, Arbitration, Labour Law and Maritime Law. He is a distinguished author with numerous publications to his name. Chimezie writes from Lagos, Nigeria.
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