THE DRAFT CONVENTION ON RECOGNITION OF FOREIGN JUDICIAL SALE OF SHIPS: NIGERIA’S POSITION

BY JEAN CHIAZOR ANISHERE (LL.M); M.T.M.; F.IoD, F.CIArb

 

1. INTRODUCTION.

In general as a matter of International Law, Sovereign States are not obliged to recognize the decisions of foreign Courts. This may be different however where States have become party to bilateral treaties or even multilateral instruments for recognition and enforcement of foreign decisions, such as the European Union (EU) Brussel – 1 Regulations and the Lugano Convention 1988; in which case the Treaty/Instrument in question will determine both whether there is an obligation to recognize a foreign decision and the legal consequences of such recognition.

Even in the absence of an obligation under International Law, States may recognize the decisions of foreign Courts voluntarily in the exercise of their sovereign powers. It must be noted however, that the circumstances and conditions for the recognition of foreign judicial sale of Ships, vary considerably from one Country to the next.

A preliminary point to be made is that usually, not the foreign judicial sale of a ship as such is the object of recognition, but rather a foreign Court’s decision or statement in which the legal fact of the change of ownership of the Ship resulting from the Judicial Sale is reported or acknowledged. P a g e | 4

Jean Chiazor Anishere.

 

 

2. EMERGENCE OF THE DRAFT CONVENTION

 

The Comité Maritime International (CMI), is the oldest International Organisation exclusively concerned with the unification of Maritime law and related shipping practice. In 1897, the partnership between the Belgian government and the CMI resulted in the famous series of “Brussels Diplomatic Conferences on Maritime Law “. In the last 100 years, the CMI has made an outstanding contribution to the unification of maritime law throughout the world. The most well-known international maritime conventions emanating from the CMI includes: the Hague Rules 1924, the Collisions Convention 1910, and the Arrest Convention 1952, amongst others.

The idea to look at the issue of recognition of foreign judicial sale of ships started at the CMI Conference of Athens in 2008, following a proposal by the Executive Council of the CMI in 2007.

It was acknowledged by the Executive Council that several problems had arisen in some jurisdictions in respect of the recognition of judicial sale of ships by foreign Courts which were not accepting a valid title given by a Court of another Country. The consequence for a successful bidder was that often, he was unable to obtain a certificate of deletion from the previous ships’ registry in order to be able to register the ship in a new registry of his choice.

 

The CMI International Working Group (IWC) was tasked with proposing a draft Instrument. The draft Instrument’s main objective was to foster the legal protection of purchasers of ships at judicial sales by furthering the international recognition of foreign judicial sales.

In carrying out its duties, the IWG was guided by the following basic principles:

1. Certain necessary minimal requirements should be set for conducting judicial sales;

 

1. The object of recognition, i.e. some basic legal effects of judicial sales, should uniformly be provided for, in the instrument;

 

1. There should only be very limited grounds of refusal with the burden of proof on the party challenging recognition of the foreign judicial sale;

 

1. The remedies available to challenge a foreign judicial sale should be curtailed;

 

1. Ships purchased at a judicial sale should be immune from arrest for claims arising earlier than the judicial sale;

 

1. The (exclusive) jurisdiction of the courts of the state where the judicial sale took place over any actions to challenge the regularity, validity or effectiveness of the judicial sale;

 

1. Conflicts with other international instruments should be avoided.

 

In June 2014, at the 41stCMI International Conference held in Hamburg, the International Community witnessed the production of a draft International Convention on Foreign Judicial Sale of Ships and their Recognition. This was probably the CMI’s most important work product since the Outline Instrument for the Rotterdam Rules. One of the resolutions adopted at the CMI Assembly, is that: –

“The CMI approves the text of the draft International Convention on Foreign Judicial Sale of Ships and their Recognition (known as the “Beijing draft”) for submission to such appropriate inter-governmental or international Organization, as the CMI Executive Council thinks appropriate, for its consideration and adoption …”

CMI’s First Trial towards International Maritime Organization

After the decision was made to first approach IMO, the CMI IWG was requested by the Executive Council of CMI in January 2015 to draft and prepare a so-called information paper for submission to the IMO Legal Committee for inclusion of its agenda of the 102nd Session of the IMO.

 

Committee Meeting (the “IMO LEG 102nd Session”), which was scheduled to take place during 14 to 16 April 2015.

The finalized Information Paper was sent by CMI President to the IMO Legal Committee on 2 March 2015 and was included in the agenda of the IMO LEG 102nd Session under Document LEG 102/11/2. The Information Paper outlines the rationale and contents of the draft convention, and invites the Legal Committee to take note of the information provided and to retain this item for further consideration at its next session.

For the purpose of providing as much as possible, background information about the draft convention with a hope to let the delegations attending the IMO LEG 102nd Session have a better understanding of the most recent output of the CMI, the IWG prepared some packed materials in relation to the draft convention which were sent to London in advance for the distribution among the IMO delegations.

3. THE NEED FOR THE CONVENTION.

 

The need for a convention dedicated exclusively to judicial sale of Ships, lies mainly on the fact that the title obtained by the Purchaser of the ship sold in execution of a judicial sale must be recognized in jurisdictions different from that of the registration of the ship or of that where the judicial sale took place.

It is then of enormous practical importance that the buyer is able to obtain a certificate of deletion from the previous registry which allows him to proceed with the registration of the ship in a new registry of his choice.

 

Thus, the need for a Convention of this nature may be enumerated as follows:

1) To solve certain practical problems.

 

There are numerous Court cases illustrating the practical problems and these include:

– The purchaser may encounter difficulty in deleting the vessel acquired at judicial sale from her previous register and then registering the vessel in a register of his choice;

 

– The purchaser’s title to the vessel may be challenged by the previous ship-owner in another jurisdiction, resulting in the vessel being arrested;

 

– The purchaser may be called upon in another jurisdiction to defend historical claims which arose before the judicial sale, whether or not secured by a maritime lien or mortgage.

 

2) To fill the gap left by the Maritime Liens and Mortgages Convention, MLM 1993.

 

MLM has unfortunately not been widely accepted. Secondly, it is far narrower in scope than the new Convention which extends to other types of maritime claims, such as those for loss of or damage to cargo or for unpaid supplies to ships. Further, there is a necessity to deal expressly with recognition of foreign judicial sales.

 

3) To satisfy the needs of the Maritime industry and ship finance.

 

The Preamble to the draft Convention provides an in-depth summary of the issues and concerns the CMI organization intends to resolve as thus:

“RECOGNISING that the needs of the Maritime industry and ship finance require that the Judicial Sale of Ships is maintained as an effective way of securing and enforcing maritime claims and the enforcement of judgments or arbitral awards or other enforceable documents against the Owners of Ships;

CONCERNED that any uncertainty for the prospective Purchaser regarding the international Recognition of a Judicial Sale of a ship and the deletion or transfer of registry may have an adverse effect upon the price realised by a Ship sold at a Judicial Sale to the detriment of interested parties;

CONVINCED that necessary and sufficient protection should be provided to Purchasers of Ships at Judicial Sales by limiting the remedies available to interested parties to challenge the validity of the Judicial Sale and the subsequent transfers of the ownership in the Ship;

CONSIDERING that once a Ship is sold by way of a Judicial Sale, the Ship should in principle no longer be subject to arrest for any claim arising prior to its Judicial Sale;

CONSIDERING further that the objective of Recognition of the Judicial Sale of Ships requires that, to the extent possible, uniform rules are adopted with regard to the notice to be given of the Judicial Sale, the legal effects of that sale and the de-registration or registration of the Ship”.

4. A REVIEW OF THE DRAFT CONVENTION.

 

It is noteworthy that the Draft Convention presently comprises of ten Articles and is just ten pages long! This ensures the simplicity of the Convention. Let us quickly review the Draft Convention.

Article 1 comprises 22 definitions. Therein, “Judicial Sale” is defined as “…any sale of a Ship by a Competent Authority by way of public auction or private treaty or any other appropriate ways provided for by the law of the State of Judicial Sale by which Clean Title to the Ship is acquired by the Purchaser and the proceeds of sale are made available to the creditors”.

Article 2 provides for the Scope of Application. By this provision, a State Party is obliged to recognise the Judicial Sale of a Ship in another State and the conditions attached therein.

Article 3 provides for the Notice of Judicial Sale. The points to note are as follows:

1. The notice of judicial sale shall be given in accordance with the law of the State, which shall include amongst other listed addressees, the Registrar of the ship’s register in the state of registration;
2. The required notice shall be given to all mandatory parties, at least 30 days prior to the judicial sale;

 

1. The required notice is to be in writing and is to be given in such a way as not to frustrate or significantly delay the proceedings concerning the judicial sale.

 

Article 4 provides for the effect of Judicial Sale which is very concise. The Article is reproduced below for ease of reference:

“Subject to:

1. The ship being physically within the jurisdiction of the State of Judicial Sale, at the time of the Judicial Sale; and

 

 The Judicial Sale having been conducted in accordance with the law of the State of Judicial Sale and the provisions of this Convention, any title to and all rights and interests in the Ship existing prior to its Judicial Sale shall be extinguished and any Mortgage/Hypotheque or Charge, except as assumed by the Purchaser, shall cease to attach to the Ship and Clean Title to the Ship shall be acquired by the Purchaser”.

 

Article 5 provides for the issuance of a Certificate of Judicial Sale. Subject to the conditions set by the State of Judicial Sale and by the Convention being met, the Purchaser gets a Certificate with certain standard information contained therein.

Article 6 provides for the Deregistration and Registration of a Ship as a result of its judicial sale. The Certificate issued in accordance with Article 5 may be considered as the initiation of the process of the change of title whilst Article 6 enables a Purchaser of value to have the Ship deregistered and registered in the jurisdiction of his choice.

Article 7 provides for the Recognition of Judicial Sale by Member States. The points to note are as follows:

8. Where a Purchaser, on application for the recognition of the Judicial Sale of a ship produces the Certificate of Judicial Sale in accordance with Article 5, then the State Party’s Court must recognise the Judicial Sale, subject to provisions of Article 8.

 

8. If the Ship/Vessel is arrested, then the arrest must be set aside once the Certificate of Judicial Sale is produced. The only exception is where the arrest is by an “Interested Person” who can bring himself within Article 8.

 

An “Interested Person” is defined as “…the Owner of a Ship immediately prior to its Judicial Sale or the holder of a registered Mortgage/Hypotheque or Registered Charge attached to the ship immediately prior to its Judicial Sale”.

1. Legal proceedings seeking to challenge a Judicial Sale can only be brought in a competent Court of the State of a Judicial Sale.

 

1. Only an Interested Person can challenge the Judicial Sale and the competent Court of the State of Judicial Sale shall only entertain an action by an Interested Person.No remedies shall be exercised either against the Ship or against any bona fide Purchaser or Subsequent Purchaser of that Ship.

 

1. The Certificate of Judicial Sale is conclusive evidence that the Judicial Sale has taken place, but shall not be conclusive evidence in any proceeding to establish the rights of any Person in any other respect.

 

Article 8 sets out the circumstances in which Recognition of a Foreign Judicial Sale may be Suspended or Refused. Notably, an Interested Party is recognised as the only person that can challenge a Judicial Sale of a Ship. Furthermore, the only grounds he may challenge same is listed in Article 8.

The grounds are provided as follows:

– If the Ship was not physically within the jurisdiction of the State of Judicial Sale at the time of the Judicial Sale.

 

– If an Interested Person has brought proceedings and a competent Court of the State of Judicial Sale has suspended or nullified the Judicial Sale.

 

– If recognition would be manifestly contrary to the public policy of the State Party.

 

Article 9 provides for the right of a State Party to refuse recognition of the Judicial Sale of a Ship, subject to the laws of the State.

 

Article 10 deals with relations with other International Instruments. It succinctly states that nothing in this Convention shall derogate from any other basis for the recognition of judicial sales under any other bilateral or multilateral Convention, instrument or agreement or principle of comity.

It is to be noted that the essence of the Convention is to pass clean title to a Purchaser for value. Purchasers and subsequent purchasers, must be able to take clean title to the ship so sold and be able to de-flag the ship from its pre-sale registry and re-flag the ship in the purchaser’s selected registry so as to be able to trade the vessel appropriately without the threat of costly delays and expensive litigation. This, in turn, will enable the purchased ship to trade freely; and to ensure that the ship will realize a greater sale price which will benefit all the related parties, including creditors, (which could include port authorities and other government instrumentalities that have provided services to a ship owner).

It is important to highlight the important legal principle that flows from a Judicial Sale that once a ship is sold by way of a Judicial Sale, the ship should – with only very limited exceptions – no longer be subject to arrest for any claim arising prior to its Judicial Sale. If purchasers and their financiers lose confidence in the predictability of obtaining a clean title and being able to reflag the vessel after acquiring a ship from a Judicial Sale, the process becomes less attractive and effective to the detriment of the purchaser and other creditors of the ship-owner whose vessel is to be sold by way of Judicial Sale.

The purchase of vessels are generally financed by a ship mortgage from a bank, where the bank’s main security for repayment is the ship itself. The international instrument, once it has received widespread support, will permit banks to provide ship finance with greater confidence that the ship will realize its full market value at a Judicial sale and not the reduced value realizable where there is the risk, as at present, that the ship may be subsequently arrested for claims predating the Judicial Sale, and by reason of a general loss of confidence in the sanctity of the process.

5. JUDICIAL SALE OF SHIPS IN NIGERIA

 

In Nigeria, a joint reading of Sections 74, 75 and 76 of the Merchant Shipping Act 2007, provides for Judicial Sale of Ships under the nomenclature of “Forced Sale”. This is known as a Judicial or Court ordered sale of a ship by which, the purchaser obtains title to the ship free of any prior encumbrances on the ship (a “clean title” in the context of the Beijing Draft Convention).

The ship is re-registered with the details of the Purchaser as the owner of the ship, while the previous registration of the ship is deleted from the Port Register (see Sections 74, 75 and 76 of the Merchant Shipping Act 2007).

The Judicial Sale of a Ship in Nigeria is carried out by the Admiralty Marshal of the Federal High Court. Such sale is governed by the Merchant Shipping Act 2007, the Admiralty Jurisdiction Act 1999 and the Admiralty Jurisdiction Procedure Rules 2011.

In order to effect a Judicial Sale of a ship, an interested party must file a summons accompanied by the relevant supporting documents at the Federal High Court, applying for the valuation and sale of the ship, as required by Order 3 of the Admiralty Jurisdiction Procedure Rules 2011.

The Admiralty Marshal must then publish an advertisement of the sale in two national newspapers, giving 21 days’ notice of the auction to the public in order to enable bids by persons interested in bidding for the vessel. At the expiration of the biding, the Admiralty Marshal gives Written Notice of the time and place of the Judicial Sale to the holders of registered mortgages, holders of maritime liens and the Registrar of ships and all other interested parties, not less than 30 days before the sale which must be by auction. See Section 73 of the Merchant Shipping Act 2007.

After the auction, the Admiralty Marshal files within 21 days of the sale, a return of sale with the Court, pays the proceeds of sale into the Court’s Bank Account and files an Account of Sale.

The Court orders the Admiralty Marshal to notify all other Claimants against the vessel through a Newspaper advertisement, giving a set timeframe (usually 14 days) within which claims for the determination of priorities must be filed. All interested parties must file an application at the Federal High Court for determination in accordance with the provisions of Section 67 of the Merchant Shipping Act, in the order of priority of claims against the ship.

If a party is not already a party to the action, but has an interest in the ship, such party can file a Verifying Affidavit with the Federal High Court stating its interest in the matter. (Orders 17 and 18 of the Admiralty Jurisdiction Rules. See also Section 75 of the Merchant Shipping Act).

Furthermore, upon the sale of a ship section 74 of the Merchant Shipping Act provides for how the proceed(s) of the sale is to be distributed.

The effect of such a sale is that all encumbrances prior to the sale which include, mortgages, rights, liens and charges against the ship are extinguished, except for those subsequently assumed by the purchaser. (Section 74 of the Merchant Shipping Act.)

If all of the above steps have been complied with, the court will issue a certificate to the effect that the ship is sold free of all mortgages, rights, liens, charges and encumbrances held by the previous owner of the ship, except those assumed by the purchaser. (Section 76 of the Merchant Shipping Act).

Thus, full ownership of the vessel is transferred to the purchaser.

The purchaser must deliver a signed declaration of transfer, approved by the Minister of Transport, and the bill of sale and other supporting documents to the Registrar at the Port of Registry. At the end of this process, the purchaser is entered in the Port Register as the ship owner and the previous registration is deleted.

De-registration and Re-registration of Ships

Under the Beijing Draft, the Registrar in the Ship’s Country of registration will remove all existing encumbrance on presentation of the Certificate, except those assumed by the purchaser. Thereafter, the registrar can either:

 Register the ship in the name of the purchaser or subsequent purchaser (as applicable); or

 Remove the ship from the register and issue a Certificate of De-registration for the purpose of a new registration.

 

If the ship had permission to fly the flag of a Bareboat Charter registration State at the time of the Judicial Sale, the registrar will – on production of the certificate – remove the ship from the bareboat register and issue a new certificate. The certificate will serve as proof that the ship’s permission to register in and temporarily fly the flag of the bareboat charter registration state has been withdrawn.

 

In Nigeria, the purchaser must deliver a signed declaration of transfer approved by the Minister of Transport and a Bill of Sale together with other supporting documents to the Registrar in the Ship’s State of registration. The details will then be entered in the Register with the purchaser listed as the owner; the previous registration and encumbrances will be removed.

6. ENFORCEMENT OF FOREIGN JUDGMENTS IN NIGERIA.

 

There is no gain in restating the unarguable principle of law that the power of Courts are restricted to territorial/geographical jurisdiction and boundaries. As such, judgments and orders of a court in one country or jurisdiction ought not to hold any sway outside their territorial boundaries. Consequently, the Judgments or Orders of a Court in a foreign country ordinarily ought not to be recognized or enforced by Courts in another country.

However, situations exist in which the laws of a Country allow for the recognition and enforcement of the judgments and orders of foreign courts in foreign jurisdictions.

Where the judgment to be enforced is delivered outside Nigeria (by a foreign court); the judgment may be enforced in Nigeria by one of two ways:

1. By action at Common Law
2. By reciprocal enforcement and registration.

 

1. By action at Common Law:

At Common Law, the judgment of a foreign court may be enforced in Nigeria by way of an action commenced in a superior court in Nigeria with the foreign judgment being sought to be enforced as the cause of action of the suit. For this means to succeed, the judgment creditor must claim in his reliefs, the reliefs granted to him in the foreign judgment.

However, the judgment need not suffer the full length of a fresh trial, as the action may be instituted under the summary judgment or undefended list procedures of the various High Courts in Nigeria which include, Order 11 of the Lagos Civil procedure Rules 2012 and Rivers Rules 2010 respectively, the undefended list procedure under Order 21 of the Abuja Rules amongst others.

After the conclusion of the proceedings and the reliefs granted to the judgment creditor in the foreign judgment are entered as judgment in favour of the judgment creditor, the reliefs become as good as any other domestic judgment for the purpose of enforcement in Nigeria.

Generally speaking, only judgments of a superior court of a foreign country will be enforced in Nigeria and this can only be done by the High Court. Such judgments may be enforced in Nigeria by the means listed above, regardless of whether the foreign court will reciprocally enforce Nigerian judgments.

However, for the enforcement action to succeed, the foreign judgment must meet the following requirements:

1. The judgment must be final and conclusive; it must settle the rights and liabilities of parties and make the court res judicata;

 

1. The judgment must have been delivered by a competent court in terms of jurisdiction;
2. The judgment must be for a definite sum of money; this can be interpreted to mean it can be calculated by simple arithmetic, provided that it is not money recovered as tax, fine or penalty; and

 

1. If the judgment is for a res other than money, the res must have been situated at the jurisdiction of the foreign court that gave the judgment as at the time of delivery.

 

1. By Reciprocal Enforcement and Registration

 

Enforcement of foreign judgments under this means, is governed by the Foreign Judgments [Reciprocal Enforcement] Act Cap F35, Laws of the Federation of Nigeria 2004] and is possible only in relation to foreign judgments obtained from courts in foreign countries whose courts are reciprocally ready to enforce the judgments of Nigerian Courts.

A Judgment Creditor desirous of enforcing a foreign judgment in Nigeria under the Act must apply to a Superior Court in Nigeria for the registration of the foreign judgment in Nigeria [See Section 4, Foreign Judgments [Reciprocal Enforcement] Act Cap F35 Laws of the Federation of Nigeria 2004].

The application must satisfy the Court that the judgment has not been wholly satisfied and that the judgment is enforceable by execution in the Country of the original Court. Further, registration of a foreign judgment at the High Court in Nigeria must be within 6 years of delivery of the judgment or in the case of an appeal, within 6 years of the conclusion of the appeal (s.4 Foreign Judgments (Reciprocal Enforcement) Act Cap F35 LFN, 2004).

However, the effect of Section 64[2] of the Federal High Court Act, Cap 134 Laws of the Federation of Nigeria 1990, is to make registration of foreign judgments on matters which fall under the jurisdiction of the Federal High Court to be registerable only at the Federal High Court. Thus, any Judgment or Orders on maritime claims in a foreign country will be registerable only in the Federal High Court.

The Admiralty Jurisdiction Act, also make provisions for the Enforcement of Foreign Judgments and Arbitral Awards by the Federal High Court.

Section 2[2][c] thereof provides that a “proprietary maritime claim” includes a claim for the enforcement of a judgment given by a foreign Court. Section 2[3][c] provides that a general maritime claim includes a claim for the enforcement of a foreign arbitral award within the meaning of the Arbitration and Conciliation Act .

Once the Judgment is registered, it is to be treated as a judgment of the Federal High Court and it may be enforced in the same manner as any other judgment of the Federal High Court.

7. RECOGNITION OF FOREIGN JUDICIAL SALE OF SHIPS IN NIGERIA. Judicial Sale of ships in foreign jurisdictions are recognised in Nigeria, provided that an application is made by or on behalf of the purchaser to the Court and the Registrar of Ships.

A Judgment Creditor files an application for the registration of a foreign judgment on the Judicial Sale of a Ship at the Federal High Court. Once the foreign judgment is entered as judgment and the reliefs are granted in favour of the Judgment Creditor, the Judgment Creditor proceeds to the Registrar of Ships with the Registered Judgment.

The evidence of the sale and change in ownership must also be provided as supporting documents. On production of such documents, the Registrar shall delete the previous ownership and enter the purchaser as the owner of the Ship.

See the following:

1. Sections 80 and 81 of the Merchant Shipping Act.
2. Section 78 of the Merchant Shipping Act 2007.

iii. Section 78(3) of the Merchant Shipping Act 2007.

 

1. Effects And Recognition

 

Under Article 4 of the Beijing Draft, a judicial sale of ship extinguishes any titles, rights or interests that existed before the sale. Similarly, Section 74 of the Merchant Shipping Act provides that all mortgages and preferential rights – except those assumed by the purchaser with the consent of the mortgage holders and all ties and other encumbrances pertaining to the Ship – will cease.

 

Under Article 7 of the Beijing Draft, Courts must recognise the judicial sale of a Ship for which a certificate has been issued in accordance with Article 5, on submission of an application by the purchaser. The draft states that the courts must recognise that:

 The certificate confers on the purchaser a clean title that is free from all rights, titles and interests that existed before the judicial sale; and

 

 The ship has been sold free of any prior encumbrance.

 

Under the Beijing Draft, courts must dismiss an application for arrest or release a ship if the purchaser can produce a certificate issued in accordance with the draft.

1. Refusal of Recognition

 

Under the Beijing Draft, the courts will refuse the recognition of a foreign judicial ship sale at the request of an interested party if the party is able to provide proof that:

 The ship was not physically located within the jurisdiction of the court that ordered the sale at the time of the sale. (Article 8(1)) or

 That a competent court in the state where the sale took place has nullified the sale and the decision nullifying the sale is no longer subject to appeal (Article 8(2) (b)).

 

Recognition will also be suspended on the request of an interested party if that Interested Person furnishes to the Court proof that legal proceedings have been commenced in a competent court in the state where the judicial sale was made, on notice to the Purchaser or Subsequent Purchaser and that the competent Court of the State of Judicial Sale has suspended the effect of the Judicial Sale. (See Article 8(2)(a) and 7 (3)).

Furthermore, a foreign judicial sale will not be recognised by the Court if it is found to be contrary to public policy or that it was obtained by fraud or in breach of natural justice (see article 8(3) of the Beijing Draft and Section 6 of the Foreign Judgments (Reciprocal Enforcement) Act of 1990).

8. CONCLUSION

 

The World has Centuries ago moved to a global village era, where commerce transactions involve parties from different geographical locations and jurisdictions. The present age has only intensified the speed of international commerce.

As already stated above, the purpose of the draft convention is to ensure international uniformity in relation to judicial ship sale procedures and to reinforce the principle that the purchaser of a ship in a judicial sale by a competent court should receive clean title to the ship, free of any pre-existing mortgages, liens or other encumbrances.

It is obvious that adoption of the draft convention will make the judicial sale of ships less disruptive to international shipping and will reduce the purchaser’s risk, thereby ensuring and enhancing efficient shipping. It is believed that the draft convention, being the most recent output of CMI, perhaps also the most important output since the production of the Outline Instrument for the Rotterdam Rules, reflects the needs and wants of the international shipping industry.

Therefore, it is apt to say that a Convention which assists in the unification of laws amongst member states in the international Community is laudable.

A review of the draft Convention shows that the provisions contained therein are similar to the procedure for the judicial sale of Ships in Nigeria. Furthermore, statutory provisions and the Rules of Nigerian Courts recognizes and provides for the enforceability of foreign judicial sale of ships.

Whilst there may still be some way to go before the draft Convention is adopted by the Member States, it is safe to infer that judicial sale of Ships in other jurisdictions is recognized and enforceable in Nigeria, subject to compliance with the statutory provisions.