Emeka Akabogu is a maritime lawyer and convener of the Oil and Trading Logistics (OTL), an annual oil and gas exhibition show. In this interview, he peruses the activities in the maritime industry in 2014 and the prospect of the New Year. Excerpts.
What is your assessment of the maritime industry in the last one year?
The industry has been evolving as far as I am concerned. I think it is difficult to place the group of the industry within any specific time bound because if you look at what is happening, you don’t have policies which are specifically time-bound. That is, policies which were to operate in 2014; we can’t say that in 2014, this is how the industry performed because there is nothing which to refer it and it will be difficult to do that. We are all trying to play on words. What I can say is that our industry has continually evolved and that evolution has seen increased investment in some segments of the industry and has seen decrease of activities and investment in other segments.
I will not say 2014 was a spectacular year so if I may work within your question, 2014 was ordinary for the industry as no significant achievement or development can be singled out for its impact and contribution to the industry. That being said, the appointment of the Nigerian Shippers’ Council as the economic regulator of the port is one that has significant step by the executive to ensure that a given void in the industry over the years is filled.
Do you think the council can achieve its desired aim given that it has only one year to act as the regulator?
Because of the challenges they face from the industry, I am aware that they have been engaging with the industry deliberately to have stakeholders understand the roles that they are playing and to see that they are able to effectively do the work that they have been mandated to do. Now that the major clog has been removed by virtue of the very definite pronouncement by the court, they are able to do their work with a lot more focus.
Would they be able to carry out the regulatory function based on the time they have?
That is up to the appointing authority at the time they are going to review, they will consider the appointment, enablement given, and in the broad view, they will consider how to proceed but personally, I think that they are in the right direction and I also believe that they will be given the time to be effective in doing what they are doing. They need a lot more of guidelines in place to ensure that the role of economic regulation works well. I know that they have been putting the guidelines in place and when the guidelines are out, everybody will be much clearer on the form of operation.
What do you think was supposed to be done that was not done in 2014?
People are quick to point to judgment. I believe that achievement of goals is on collaboration between the government and the operators. There is nothing government can do if the operators are not co-operating or if they are not in the right direction. In terms of what the industry needs basically are not met in 2014. We want 48 hours cargo clearance at the port; we want that as regularly as possible, trucks can come in and exit the port freely; we want on a continuous basis, an increase in investment within the port and in the industry; we want Nigerians to own ships, we want policies which are valuable on the long-term in the industry. These are continued needs which need to be met by a collaboration of bodies. It is obvious that there is still a lot to be done. I think the port authority needs a lot more efforts in ensuring that the terminal operators have their expectations under their contract relating to dredging of the port, good access road.
Owners of cargoes need to be able to have a clear expectation as to the time within which their goods get cleared. There is an expectation too that our investors need to be more responsible and they have not been responsible as we want them to because you have to give what belongs to Caesar to Caesar. So, we should stop trying to short-change the government and the system because we have a declaration we make in respect of our imports. We should stop referring to the customs as corrupt; the customs is labeled as corrupt simply because importers and cargo owners are corrupt. I notice it continuously that there are lots of complaints on non-compliance by government bodies; we have equal hammering on the whole of individual operators. There are lots of operators who are breaking the laws with impunity and there are so many regulations that if the government is implementing, 90% of the operators will be liable. The government and the operators need to do a
lot more in 2015.
The current National Assembly is winding up; new ones will soon come on board and most of the present legislators may not return and the Port and Harbour Bill and the National Transport Commission Bill are yet to be passed. What does this portend for the industry in 2015?
The passage of the bills is one of those things that I would have liked to happen in 2014 that did not happen. I would have liked the port and Habour bill and the NTC bill are passed by the National Assembly and I would have liked it in 2014 specifically because I know that the likelihood of it happening in 2015 is very slim given the elections which are coming up. It is a disgrace that these bills are still pending in the National Assembly. People are complaining that the PIB is taking time. As at today, the PIB is the most notorious bill ever before the National Assembly because of the time it has taken but are you aware that the Port and Harbor bill went to the National Assembly before the PIB? It was the first thing after the concession was completed yet nothing happened. The National Assembly has been a spectacular failure. I don’t know how to describe it. So, secondly, the National Assembly should do well to redeem itself, create a legacy by
taking firm stand towards passing these two bills before they leave. If not, they will go down in history as having failed the entire maritime industry.
Do you think the stakeholders are doing enough to push for the passage of the bill? And don’t you think they should have towed the lines of NUPENG and PENGASSAN who downed tools to press for the passage of PIB?
The National Assembly has the bill before it, does it need Nigerians to go down on their knees and beg them before they can take actions that will be positive for Nigerians? There is no need for a more active lobby since the bills are not for a specific benefit of a small group of people but Ports and Harbor bill is for the benefit of Nigerian economy. We have been saying that we have a situation where all is a primary commodity that all Nigerians live and die in respect of, that we need to encourage the development of non-oil. The core driver of the non-oil economy is the maritime industry and they are before the National Assembly and nothing is done about it. So, we have to be very careful when we do not focus attention on the key things for which attention is needed. My position is that 2014 would have been great to see the passage of those bills but the legislators are in charge of the various bills particularly the committee on marine transport in both the House and Senate. They will do themselves a huge service by ensuring that these bills are passed before they leave.
Do you think there are forces frustrating the passage of these bills?
I don’t know if anybody is frustrating it. I have no personal information beyond what we can see.
How do you think that the issue of demurrages on public holidays can be put to rest so that there can be clear transaction between the operators and the importers and the agents?
Don’t forget that there are valid interests which have to be taken cognizance of so that in as much as there are concerns which shippers have relating to charges, we also have to understand that valid agreement which needs to be adhered to which terminal operators and shipping companies must work with after which the business model will be turned upside down. My position has always been that demurrage is a levy for defaulting in picking your cargo at the right time particularly with the fact that the terminal operators are in business, that terminal operators are entitled to charge you demurrage as far as your cargo is on that stage. If the cargo owner has been negligent in removing his cargo, he must pay for it however, if it is impossible for the owner who wants to take his cargo and yet levied for it, I think this is what NSC wanted to achieve when it sent notices last year because the notices were actually on the frame of ensuring that steps are taken by terminal operators and shipping companies so that they cannot without doing what they are supposed to do start levying charges which amount to cheating on innocent importers. There are factors which must be considered in both sides; if everything which needs to be done is done, on the part of the terminal operators and despite all that, the cargo owner fails to take his goods within time, he should be levied demurrage. There is a rule in law that once a demurrage, always a demurrage.
What is the update on the matter between shippers’ council and STOAN and ASLA?
There are no updates as far as I know; they are entitled to file for an appeal if they want to. It is a legal matter that we view as the matter arises. As at today, I am not aware of a stay of execution on that judgment, as at today, the judgment at the Federal High Court in December is the position of the law.
Is it true that the industry may witness a lot of litigation this year as a result of the case by STOAN against the Shippers’ Council? Is that likely to be an eye opener for the industry stakeholders?
It will seem that may be a likely option by persons who feel their interests have been negatively affected in the past and who see this case as opportunity to ventilate their concerns because people are always encouraged by seeing justice done. That means that injustices that were meted out previously are corrected or that the operators are more careful. So, it may not be unlikely because there is increased confidence in the judicial process.