Wrongful Arrests of Ships in Nigeria and Available Remedies

INTRODUCTION:

Wrongful arrests of ships is a substantial issue in the context of maritime law, involving likely
issues that emanates from disputes over unpaid debts, cargo claims or other maritime related
issues. It refers to the improper seizure or detention of vessels by maritime authorities or
interested parties without a proper legal basis. This can be the case, where there is no valid
maritime claims or court orders.

That is to say that the arrest was without a proper legal actions, thus not in alignment with the practice and procedures for arrest and detention of ships under the maritime law in Nigeria.1 For instance, an arrest of a ship done in police station or by a shackle – bearing marine police.2

Lawyers and courts must be involved via a series of specific procedures and conditions.3 For there to be a lawful arrest, a legal action must be instituted in court by lawyers familiar with the applicable procedures. The action must be instituted in the Federal High Court – not a state high court, national industrial court, customary court or Sharia court.3

Thus, it becomes compulsory and not optional to pay adherence to the established procedures, before a valid or lawful arrest can be said to have been effected.

The consequent effect of this wrongful arrest of ships can be severe and possibly lead to financial losses for ship-owners and damage to their reputations, and can cause disruptions in their operations. It can also cause a disruption in maritime trade and commerce, especially when ships are detained and the effects can be delayed cargo deliveries, increased costs and economic losses for businesses.

Protection against such unjust actions through legal frameworks and available remedies, and as
well preserving the economic and operational interests of stakeholders in the maritime sector will assist to provide a threat free environment of illegal arrest of ships in the maritime area.

This essay tends to examine the improper arrests of ships in the context of maritime law, with a
particular focus on the legal frameworks and available remedies.

This study will provide to the extent it could, a comprehensive information on the issues relating to the wrongful arrests of ships in Nigeria, while it pays attention to the legal frameworks for the arrests of ships, and will canvas about the remedies that are available in the case of such unjustified arrest and detention of vessels.

The Legal Frameworks of Maritime In Nigeria Jurisdiction.

A sustainable bulwark that regulates rotatively along the sphere of maritime in Nigerian
jurisdictions, is habilitated in some specific local legislations and international treaties. This
study will only deal with the legal provisions pertaining to the Nigeria jurisdiction.

This includes the laws and the enforcement system of Maritime affairs in Nigeria. Some of the local legislations involves:

i. The Constitution of the Federal Republic of Nigeria 1999 (as amended).
ii. The Admiralty Jurisdiction Act, 1991.
iii. The Merchant Shipping Act, 2007
iv. The Nigerian Maritime and Safety Agency Act.
v. Coastal and Inland Shipping (‘Cabotage’) Act, 2003.

The above legislations will be briefly examined within the context of this study.

I) The 1999 Constitution of the Federal Republic of Nigeria:

This is the foundational provision for the regulations of maritime affairs in Nigeria. Firstly, it vested the right of ownership of minerals, mineral oils and natural gas in the government of the federation. This extends beyond resources located in the land territory to those located in the territorial sea, including the Exclusive Economic Zone of Nigeria.4

The Constitution also charges the state to improve and protect the air, land, water, forest and wildlife of Nigeria.5 By this provision, it tasks the Nigerian government to make the environment safe and further prosecute any persons who pollute the environment through its activities, especially the oil and gas companies.6

The Constitution confers jurisdiction on the Federal High Court to the exclusion of any other court in civil causes and matters relating to any admiralty jurisdiction, including: shipping and navigation on the River Niger or River Benue and their affluents; on such other inland waterway as may be designated by any enactment to be an international waterway; all federal ports (including the constitution and powers of the ports authorities for Federal ports); and carriage by sea.7

II) The Admiralty Jurisdiction Act, 1991:

The AJA, 1991 is an exclusive legislation that confers a special jurisdiction on the Federal High Court, extensively to the length it was vested by the constitution.

The admiralty jurisdiction of the court 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; it does not matter whether the goods were transported on land during the process or not.8

Any agreement or purported 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.9

III) The Merchant Shipping Act 2007:

The M.S.A is the principal legislation, regulating merchant shipping issues and other labour related matters.10 The Act established an Agency for Maritime Safety Administration, responsible for maritime safety, administration and security.11 The Act governs collision,12 including liabilities in collision cases in Nigeria.13The Act also provides the requirements for shipping I or from the water.

IV) The Nigerian Maritime Administration and Safety Agency Act:

The NIMASA Act 2007 provides for the promotion of maritime safety and security, protection in the marine environment, shipping registration and commercial shipping, maritime labour, the establishment of the Nigerian Maritime Administration and Safety Agency and related matters. Its objective is to develop indigenous commercial shipping in international and shipping trade.14

V) The Coastal and Inland Shipping (‘Cabotage’) Act, 2003:

This Act colloquially cited as the Cabotage Act 2003 regulates the activities of maritime transportation. It prohibited the use of foreign vessels in domestic coastal trade; fostered the development of indigenous tonnage, and established a cabotage vessel financing fund; and for related matters.15

Other maritime legislations include: the Territorial Waters Act; the Oil in Navigable
Waters Act 2004; the Nigeria Port Authority Act 1999; the Petroleum Act 1969; the Petroleum (Drilling and Production Regulation) Act; the Inland Fisheries Act 1992; and the Sea Fisheries Act 2004.16

The Jurisdiction of the Federal High Court.

The exclusive jurisdiction of the federal High Court to handle maritime issues, often referred to as Admiral matters is vested by the constitution.17 By extension, the Admiralty Jurisdiction Act in its Section 19 further vests on the Federal High Court the jurisdiction to entertain Admiralty causes, whether civil or criminal. This provision had been endorsed in several case laws and was specially pontificated in the case of TSKJ (Nig) Ltd v. Otochem (Nig.) Ltd.18

These above provisions, including the local legislations and the court’s jurisdiction over maritime matters embodies the legal system of framework of Maritime in Nigeria.

Examination of the Wrongful Arrests of Ships in Nigeria.

Definition of Wrongful Arrests of Ships:
Wrongful arrests of ships refers to the illegal manner of keeping ships in restraints, on unjustified grounds, over issues that evolves likely from unsettled disputes arising from debts, cargos, maritime claims and other related issues. It involves the improper seizure and detention of
vessels, without a legal action.

Such arrests are considered wrongful because they lack a legitimate legal basis, and they can
have significant legal and economic consequences for shipowners, cargo owners, and other stakeholders.

The legal manner of arresting vessels in Nigeria is through instituting of an action in court,
where a lawyer will be involved, otherwise any means taken apart from this constitutes a
wrongful arrest of a ship.

Causes of Wrongful Arrests of Ships in Nigeria.

As it was stated above, the causes of Wrongful Arrests can evolve from disputes over debts,
cargoes, maritime claims and other related issues. The following causes will be examined in bits:

• Unpaid Debts: There are outstanding debts, to which ship owners are obliged to. If these
debts remains unpaid. It can lead to initiation of wrongful arrests by the creditor.

• Cargo claims and Unsettled cargo disputes: When there is damage and a poor delivery of goods, relating to the quality, quantity and conditions of the goods. If a dispute occurs in such occasion, without a proper settlement, it can prompt the cargo owner to wrongful arrest of the ship to secure his claim, even when the ship-owner is not at fault.

• Maritime Liens: some specific liens such as seaman’s wages or salvage claims if not satisfied might lead to wrongful arrests by the claimants who assumed the rights of their liens. Other causes from other maritime related issues can involve: environmental claims, Charter parties and ownership disputes, arbitration or ligation delays.19

Effects of Wrongful Arrests of Ships in Nigeria.

Wrongful arrests of ships can cause unpleasant effects and lead to unfavorable conditions. The
following will portray the effects of Wrongful arrests of ships:

1) Financial Losses: A wrongful arrests of ships can occasion Financial loss for the shipowners and the charterers, arising from legal fees, demurrage fees and legal costs involved in releasing a seized vessel.

Disruption to Maritime Trade & Commerce: The outcome of wrongful arrests of ships might cause a disruption to Maritime Trade. It can also cause operational disruption. This is possible, because it can lead to delays in cargo delivery, and affecting supply chains. It may also disrupt regular operations and fixed schedules.

2) Damage to Reputation and Loss of Opportunity: It may cause a damage to the reputation of shipowners, thereby discouraging clients i.e the charterers to engage in future business. It can also occasion loss of lucrative business, as a consequence of the delays caused by the wrongful arrest.

3) Inefficiencies in the Legal System: Wrongful arrests of ships can cause frequent issues in court. Lengthy legal proceedings to settle those can deter foreign investment and participation in maritime activities.

Available Remedies For Wrongful Arrests of Ships in Nigeria:

The legal frameworks of Maritime in Nigeria, has provided several measures that tends to
gauntlet the unjustified seizure and detention of ships, and also to recompense the aggrieved
shipowners. Some of the available remedies for wrongful arrests of ships includes:

• Judicial Remedies/ Award of Damages: Section 13(1) AJA provides that in circumstances where a party without reasonable cause demands excessive security in action in rem proceedings or obtains the warrant for the arrest of the ship, that party will be held responsible for the damages to the proceeding who has suffered damage or loss.20

Particularly, under the Rules, a defendant who was a victim of a wrongful arrest has three options as follows:

i. He may apply to the court within three months from the termination of the suit
for general damages of such amount as the court may deem a reasonable
compensation; or

ii. He may bring an action for wrongful arrest against the plaintiff claiming all the
damages arising from the arrest, which he can establish; or

iii. He may make an oral application for damages immediately after judgement. The court in this instance, is entitled to summarily assess the damages due to the ship owner.21

• Release of Arrested Ships & Security of Damages:

The Admiralty Jurisdiction Act and the Merchant Shipping Act, typically provided this remedy, which assures a shipowner or claimant, or victim of wrongful arrest, to seek through a court action for the release of his ship.

Additionally, an arresting party may be required to post security or a bond to cover potential damages or lossess that can occur from a wrongful arrest.22 There are several other remedies, not examined here that may relief the victim of a shipowner from the damages and unpleasant effects of a wrongful arrests.

CONCLUSION:
The Maritime laws in Nigeria, provided several regulations for the shipping activities in the sea or water ports, this involves the procedures for the arrests of those ships. Not abiding to those procedures or an attempt to defy it, inorder to keep a ship on restraint on unjustified grounds, or if with a justified reason but without complying with those laws, is an implication of wrongful arrest.

However, the Maritime regulations are not silent against these unjust actions. The legislators in their wisdom, encapsulated in those laws, measures that will safeguard the rights of the possible victims. It’s advisable, that you consult a legal practitioner who’s an expert in maritime law, to guide you on your rights.

REFERENCES

1 Section 7 of the AJA and Order 7 Rule 1(1) of the Admiralty Jurisdiction Procedural Rules of the (FHC) provided

for the procedures for a ship arrest. It provides that a ship or other property may, in any proceeding commenced

as an action in rem, be arrested at any place within the limits of the territorial waters of Nigeria.

2 Demystifying ship arrests in Nigeria published at https://akabogulawfirm.com

3 Demystifying ship arrests in Nigeria published at https://akabogulaw.com

4 See Section 44(3) of C.F.R.N 1999 (as amended). See also Legal framework for maritime law in Nigeria by

Tiwalade Aderoju published at https://www.ibanet.org

5 See Section 20 of the Constitution.

6 Dr. Samuel C. Dike and Prince Godwin Gininwa, ’An Appraisal of the Nigerian Legislation and Institutions

Governing Maritime Environment’ SSRN Electronic Journal (2019) 10.2139/ssrn.3514479.

7 See Section 251(1)(g) of the Constitution

8 See Section 1(2) of AJA.

9 See Section 1 (3) of AJA. See also Tiwalade Aderoju “Legal Frameworks For Maritime in Nigeria” published at

https://www.ibanet.org

10 Section 2 of the Act

11 Section 5(1) of the Act.

12 Collision means any accident involving two or more vessels that causes loss or damage even if no actual contact

has taken place. See Tiwalade Aderoju “Legal Framework for Maritime in Nigeria” published at

https://www.ibanet.org

13 See Tiwalade Aderoju “Tye Legal Framework for Maritime in Nigeria” published at https://www.ibanet.org

14 See Tiwalade Aderoju “The Legal Framework for Maritime in Nigeria” published at https://www.ibanet.org

15 Tiwalade Aderoju “The Legal Framework for Maritime in Nigeria” published at https://www.ibanet.org

16 Tiwalade Aderoju “The Legal Frane For Maritime in Nigeria” published at https://www.ibanet.org

17 Ibid

18 (2018) 11 NWLR (Pt 1630) 330 S.C.

19 chatGpt.

20 See Arrest Of Ship Under Maritime Law: Practice And Procedure By Dayo Adu , Adeyemi Ayeku and Halima Aigbe

published at https://www.mondaq.com

21 See Order 11(2)(3) of the Admiralty Jurisdiction Procedural Rules of (FHC).

22 chatGpt

About the Author

Okafor Michael C. is a penultimate student of law at Chukwuemeka Odumegwu Ojukwu University Anambra State, Nigeria, with a penchant for learning about legal studies, legal writing, advocacy, and leadership.

He has an ardent interest in Constitutional Law, Criminal Law, Industrial Law and Intellectual Property Law. Following his interest on these areas of law, he has authored several publications, published at the Voice of Law blog, Legal Scribes Club gazette and the Legal Nuggets Intiative blog. He equally has several other unpublished articles outside the aforementioned areas of law.

He has interest in advocacy and legal drafting and litigation and he is currently an intern at Dr. Onyechi Ikpeazu (SAN) chamber Onitsha.