UNDERSTANDING MARITIME LAW
The subject maritime or admiralty law has continued to evolve as new versions of old problems come to force and new areas of concern are arising. The judicial system all over the world has been very much concerned in addressing these new areas of distress, but it seems these challenges are likely to continue, given the rising maritime issues on the horizon.
The subject maritime or admiralty law is a specialised field of law, that covers a vast area including but not limited to subjects like; admiralty jurisdiction, carriage of goods and passengers by sea, maritime lien, towage, pilotage, acquisition and registration of ship, proprietary interest in ship, safe manning of ships, maritime labour, maritime safety, wreck and salvage, maritime claims, arrest of ships, limitation and division of liability, maritime insurance, marine pollution, maritime security, maritime treaties and conventions etc.
It is crucial to the operations of key industries, not only to shipping but also to the energy industry, international and domestic trade and also international relations. This field of law is certainly one of the most inviting and interesting subject areas of law as well. Compared to other courses in law, maritime law connects so many substantive areas of law, such as; contracts, torts, civil procedure, criminal procedure, legal history, commercial law, environmental law, both public and private international law, administrative and constitutional law etc. Also, the subject Maritime Law has casts so broad a net and is capable of providing a picture of richness of law as it is confronted by lawyers and judges in the front line practice.
It therefore suffices to state that introducing the subject maritime or admiralty law will be a gruelling task. But I will try to summarily discuss some key aspects of the subject to provoke and stimulate interest for further learning in this area of law that is not only very challenging and interesting but fascinating and ever evolving.
1.1 Definition of Maritime Law
Maritime or admiralty law can be broadly defined as that great body of law (statutory or jurisprudential) which regulates the activity of carrying cargo and passengers over water.1 It can also be defined as the body of legal rules and concepts concerning the business of carrying goods and passengers by water.2
From a broader sense the term maritime or admiralty law accommodates “the entire body of laws, rules, legal concepts and processes that relate to the use of marine resources, ocean commerce, and navigation.”3
Maritime law and practice is regulated by international laws, treaties and conventions, some are domesticated and incorporated into state laws by countries while others are not.
2.0 BRIEF HISTORICAL DEVELOPMENT OF MARITIME LAW
Maritime law is one of the world’s oldest bodies of law. Some scholars believed that Maritime law began in countries bordering the Mediterranean Sea.4 The law evolved from the customs and practices of early merchants and seafarers and was largely private and commercial in nature. Custom and usage, as well as adjudicative decisions were codified as ratio scripta in certain parts of the maritime world, and in several instances were subsequently transformed into positive enactments by a law making authority.5
The origin of maritime legislation or codified maritime law began with the Code of Hammurabi of Babylon, dating back to the period between 2000 and 1600 B.C. The Code contained rules with respect to marine collisions, the practice of bottomry and leases of ships.6
The Egyptians were first, then the Phoenicians and then the Greeks, in that successive order, maintained maritime supremacy in the Mediterranean region. The Phoenicians evidently developed maritime customs which survived their fall from supremacy and it is reported to be the basis of much maritime law even to this day.7 With their gradual demise, the Greek states rose to supremacy.8
In as early as 400 B.C., the Greek law included many maritime provisions ranging from substantive matters such as the treatment of shipwrecked, seamen, and adjudication of disputes concerning maritime contracts, to procedural matters such as the jurisdiction of the maritime court.9 Special courts were established in Athens to deal with maritime matters. The Greeks also engaged in such peculiar maritime practices such as bottomry and respondentia and the Athenian maritime courts were known to have enforced such bonds.10
Similar maritime practices existed in Hindu India, as far back as 900 B.C. when the Code of Manu was written. Commercial law was a developed facet of the advanced civilization of that region11 which included rules relating to interest on bottomry loans for sea voyages.12
The Island of Rhodes in the Eastern Mediterranean rose to prominence as a centre of maritime commerce in the latter part of the Greek era. The Rhodians developed and compiled the first comprehensive Maritime Code of Rhodes and much of Greek maritime law including the Athenian laws were based on this Code.13 The Rhodian Maritime Code reportedly found its way into the Roman legal system in subsequent years and prevailed through to the Byzantine era.14
In Roman laws provides for rules relating to the acquisition of vessels by construction and subsequent conveyance or transfer by sale or bequest, rules relating to co-ownership or co-partnership, joint and several liability to third parties and joint vicarious liability for the fault of the master and crew. The notion of what in subsequent times came to be known as the maritime lien or privilege, which prevails even today, has its origins in Roman law.15 The contract of affreightment was known; and ships were hired through demise, voyage or time charters. The notion of sea carriage of goods owned by different cargo owners against payment of freight was well known, and rules governing agency and the vicarious relationship between the ship owner and the master pertaining to all matters concerning the vessel and the voyage were firmly established. There were rules relating to carrier liability for cargo damage, and relief from liability if damage resulted from damnum fatale such as shipwreck or piratical attacks.16
Under the Roam law, there were elaborate rules governing maritime loans including contracts of bottomry and respondentia, otherwise known as foenus nauticum17. The law contained provisions regarding pilotage at mouths of rivers and dangerous coasts, and rules against the plundering of wrecked ships and goods18. The Roman statute of damages, the Lex Aquilia was the governing law under which liability was imposed on the negligent navigator and it was unlimited.19
The Consolato del Mare of Barcelona which developed during the late 14th and early 15th centuries contained the customs and practices of maritime law referred to above and included a variety of codes and judicial decisions dating back to Roman, and even earlier, to Rhodian times.20 The Consolato is held to be the earliest general code of maritime law preserved and carried into modern Europe.21 The contribution of the Consolato in the shaping of modern maritime law is self-evident.
The town of Wisby in the island of Gotland in the Baltic Sea was a prominent centre of maritime commerce in the 11th century. It is now a part of present day Sweden. The Hogheste Water-Recht de Wisby, is said to be the oldest maritime laws of the middle ages and is the source of the earliest part of the Rolls of Oleron.22 As early as in 1369, the Congress of the Hanseatic League adopted an Ordinance on private maritime law and by the early 17th century the League developed private maritime law into legislative form as a body of legal doctrine.23
The Rolls of Oleron, now part of France are also considered to be one of the most distinguished of the medieval maritime codes. They were based on the early Mediterranean maritime customs and practices and drew from the subsequently codified Italian sources of that region, in particular, the Consolato del Mare.24 The Rolls also contained judgements of the maritime court of Oleron25 Entrenched in the Rolls were the principles of the contract of affreightment, the charterparty, the notion of making a ship seaworthy at the commencement of a voyage, the liability of the carrier for damage to cargo, the requirement for skilful navigation and management of the vessel, the concept of transhipment of cargo, the principles of despatch and demurrage and the maritime hypotheque. There were also the laws of salvage and general average26.
The English maritime laws and codes developed special courts and its international rules. The English maritime law consists of the common or consuetudinary law and the statutory maritime law. The former itself has two components, the lex mercatoria (law merchant) and the lex maritima (law maritime).27 That division aside, the basic source of English maritime law is the Black Book of the Admiralty28. Aside from the common law and chancery courts, which occasionally and inadequately meted out maritime justice, the only courts which dealt exclusively with maritime disputes were the courts of the seaports. The courts were presided over by merchants and local port officials who adopted the law of the Rolls of Oleron together with local customary laws to administer justice.29
It is notable that significant strides in maritime law had also been made in some parts of the Asian continent. In as early as the thirteenth century, the people of the islands of Malacca had a maritime code. The Malaccan Sea Code in much the same way as the Romans adopted the Rhodian Code.30 The Malaccan Code would have been compiled around 1276 during the reign of Sultan Mohammed Shah. The architects of the Code were “nakhodas” or shipmasters, and according to the preamble of the Code the laws contained therein were “to be enforced in ships, junks and prahus”31.
Historically, among the city States which flourished during this era and the most prominent maritime codes developed over several hundred years, were the sea laws of Venice, Genoa and Pisa, the tablets of Amalfi, the Statutes of Marseilles, the Consolata del Mare of Barcelona, the laws of Wisby, the laws of the Hanseatic city States of Northern Germany and most importantly, the Roles d’Oleron or Rolls of Oleron32which are generally recognized as the basis of latter-day modern European maritime codes, including the maritime law of England.33 The universality of these maritime codes and its relevance to the development of maritime law is evident from the above accounts. Such were the ways in which maritime law evolved through the centuries from pre-historic times in different parts of the world.
3.0 AN OVERVIEW OF SUBJECTS UNDER MARITIME LAW
In line with the foregoing background, a general idea of topics that makes up the subject maritime or admiralty law will be summarily discussed. These maritime topics covered summarizes both the regulatory and private law practice, as well as crossbreed areas of maritime and admiralty law.
3.1.1 Definition of a Ship
That big floating thing that carries cargo from one place to another is referred to as a Vessel or Ship.
What is the difference between Vessel and Ship?
A Vessel comprises of a ship, floating platform, boats, barges etc that can float and can be steered or moved either by own means or other means (example towage). While a Ship is a large ocean going vessel that uses wind power or steam power or other man made energy sources, rigged in such a manner that will allow it to sail and be controlled. A ship also transports cargo in order to earn revenue. Ships are generally distinguished from boats based on size, shape and cargo or passenger capacity.
The basic criteria used in determining whether a structure is a vessel is the ‘‘purpose’’ for which it is constructed and the business in which it is engaged. The term Vessel in admiralty law is not limited to ships engaged in commerce.34
Based on the purpose test, some key features of determining a vessel includes; its mobility and capability to transport across the water, whether it is subject to common perils of the sea, whether it designed to be permanently fixed in a position, whether it is consistent with statutory or other policy considerations.35
What is not a Vessel or Ship?
A vessel is regarded as a floating structure or platform that has specialised function in a port, harbour or shipyard. But floating drydock, floating platforms, barges or rafts used for construction or repair of piers, docks, bridges, pipelines and other facilities, floating fish processing plant, floating crane barge used to discharge cargo, floating platform docked by rope and used as a stationary construction surface are not seen as vessels.36 Also a fixed oil and gas drilling and production platform permanently attached to the ocean floor is not a vessel.37
On the other hand, a dead ships that is wind drawn from navigation or devoted to land-based use is seen as a vessel, also ships that are given over to stationary uses that are still capable of navigation, ships temporarily out of navigation for repairs, vessels transported as cargo also maintain its status of a vessel.38 Also a floating submersible oil drilling rig made fast to the ocean floor by jack up to be towed legs is a vessel because it can be towed from place to place. A submersible oil storage facility, such as a round barge six oil storage tanks capable of being submerged or raised is a vessel.39
Under Nigerian law, a “ship” refers to a vessel of any kind used or constructed for use in navigation by water, however propelled or moved and includes a barge, lighter or other floating vessel, including a drilling rig.40 The definition also includes a hovercraft, an offshore industry mobile unit, and a sunk or stranded vessel and its remains. A vessel under construction that has not been launched is, however, excluded. The Admiralty Jurisdiction Procedure Rule41 simply describes a ship as including any description of vessel used in navigation. The Nigerian Merchant Shipping Act provides a broader definition, thus: “ship” “means a vessel of any type whatsoever not permanently attached to the seabed, including dynamically supported craft, submersibles of any other floating craft which shall include but not be limited to Floating Production Storage and Offloading (FPSO) platforms as well as Floating Storage and Offloading (FSO) platforms.”42
In Nigeria, and generally among seafaring nations, for a vessel to qualify as a ship, it must be used for navigation. Ships are used on lakes, seas, and rivers for a variety of activities, such as the transport of people or goods, fishing, entertainment, public safety, and warfare.
3.1.2 Types of Ships
The great majority of ships that are neither military vessels nor yachts can be divided into several broad categories: cargo carriers, passenger carriers, industrial ships, service vessels, and non-commercial and miscellaneous ships. Each category can be subdivided, with the first category containing by far the greatest number of subdivisions.
A. Cargo carriers
Cargo ships can be distinguished by the type of cargo they carry, especially since the means of handling the cargo is often highly visible. As noted below (see Cargo handling), the trend is toward specialization in this regard. One consequence is a proliferation in types of cargo vessel. The present discussion is limited to a few types that are represented by large numbers of ships and are distinctive in appearance. Some examples of cargo carries ship are; Tankers, container carrier ship, roll on roll off, dry cargo ships.
Ships that carry liquid cargo (most often petroleum and its products) in bulk are made distinctive by the absence of cargo hatches and external handling gear. When fully loaded they are also readily distinguishable by scant freeboard—a condition that is permissible because the upper deck is not weakened by hatches. In essence, the tanker is a floating group of tanks contained in a ship-shaped hull, propelled by an isolated machinery plant at the stern. Each tank is substantially identical to the next throughout the length of the ship. The tanks are fitted with heating coils to facilitate pumping in cold weather. Within the tanks are the main, or high-suction, pipes, running several feet from the bottom to avoid sludge. Below them, low-suction piping, or stripping lines, removes the lowest level of liquid in the tank. Tanks are filled either through open trunks leading from the weather deck or from the suction lines with the pumps reversed. Because tankers, except for military-supply types, usually move a cargo from the source to a refinery or other terminal with few manoeuvres en route, the machinery plant is called on only to produce at a steady rate the cruise power for the ship; consequently, considerable use of automatic controls is possible, thus reducing the size of the crew to a minimum. In view of the simplicity of inner arrangement, the tanker lends itself to mass production perhaps more than any other ship type.
Along with the great increase in numbers and size of tankers have come specialized uses of tankers for products other than oil. A major user is the natural gas industry.
ii. Container ships
Like tankers, container ships are characterized by the absence of cargo handling gear, in their case reflecting the usual practice of locating the container-handling cranes at shore terminals rather than aboard ship. Unlike the tanker, container ships require large hatches in the deck for stowing the cargo, which consists of standardized containers usually either 20 or 40 feet in length. Below decks, the ship is equipped with a cellular grid of compartments opening to the weather deck; these are designed to receive the containers and hold them in place until unloading is achieved at the port of destination. The ship is filled to the deck level with containers, the hatches are closed, and one or two layers of containers, depending upon the size and stability of the ship, are loaded on the hatch covers on deck.
iii. Barge-carrying ships
An extension of the container ship concept is the barge-carrying ship. In this concept, the container is itself a floating vessel, usually about 60 feet long by about 30 feet wide, which is loaded aboard the ship in one of two ways: either it is lifted over the stern by a high-capacity shipboard gantry crane, or the ship is partially submerged so that the barges can be floated aboard via a gate in the stern.
iv. Roll-on/roll-off ships
Roll-on/roll-off ships, designed for the carriage of wheeled cargo, are always distinguished by large doors in the hull and often by external ramps that fold down to allow rolling between pier and ship. Because vehicles of all kinds have some empty space—and in addition require large clearance spaces between adjacent vehicles—they constitute a low-density cargo (a high “stowage factor”) that demands large hull volume.
v. Dry-bulk ships
Designed for the carriage of ore, coal, grain, and the like, dry-bulk ships bear a superficial likeness to container ships since they often have no cargo handling gear and, unlike the tanker, have large cargo hatches. The absence of containers on deck is a decisive indicator that a vessel is a dry-bulk ship, but an observer may be deceived by the occasional sight of a dry-bulk ship carrying containers and other non bulk cargo on deck. An incontrovertible indicator is the self-unloading gear, usually a large horizontal boom of open truss work, carried by some bulk ships.
B. Service Ships
The service ships are mostly tugs or towing vessels whose principal function is to provide propulsive power to other vessels. Most of them serve in harbours and inland waters, and, because the only significant weight they need carry is a propulsion plant and a limited amount of fuel, they are small in size. The towing of massive drilling rigs for the petroleum industry and an occasional ocean salvage operation (e.g., towing a disabled ship) demand craft larger and more seaworthy than the more common inshore service vessels, but oceangoing tugs and towboats are small in number and in size compared with the overwhelmingly more numerous cargo ships.
C. Miscellaneous Ships
It is intended to encompass classifications such as icebreakers and research vessels, many of which are owned by government. Neither type need be of large size, since no cargo is to be carried. However, icebreakers are usually wide in order to make a wide swath through ice, and they have high propulsive power in order to overcome the resistance of the ice layer. Icebreakers also are characterized by strongly sloping bow profiles, especially near the waterline, so that they can wedge their way up onto thick ice and crack it from the static weight placed upon it. To protect the hull against damage, the waterline of the ship must be reinforced by layers of plating and supported by heavy stiffeners.
Research vessels are often distinguished externally by cranes and winches for handling nets and small underwater vehicles. Often they are fitted with bow and stern side thrusters in order to enable them to remain in a fixed position relative to the Earth in spite of unfavourable winds and currents. Internally, research vessels are usually characterized by laboratory and living spaces for the research personnel.
D. Industrial ships
Industrial ships are those whose function is to carry out an industrial process at sea. A fishing-fleet mother ship that processes fish into fillets, canned fish, or fish meal is an example. Some floating oil drilling or production rigs are built in ship form. In addition, some hazardous industrial wastes are incinerated far at sea on ships fitted with the necessary incinerators and supporting equipment. In many cases, industrial ships can be recognized by the structures necessary for their function. For example, incinerator ships are readily identified by their incinerators and discharge stacks.
F. Passenger carriers
Most passenger ships fall into two subclasses, cruise ships and ferries.
i. Cruise ships
Cruise ships are descended from the transatlantic ocean liners, which, since the mid-20th century, have found their services pre empted by jet aircraft. Indeed, even into the 1990s some cruise ships were liners built in the 1950s and ’60s that had been adapted to tropical cruising through largely superficial. However, most cruise ships now in service were built after 1970 specifically for the cruise trade. Since most of them are designed for large numbers of passengers (perhaps several thousand), they are characterized by high superstructures of many decks.
The above features present the principal challenge to the cruise-ship designer: providing the maximum in safety, comfort, and entertainment for the passengers. Thus, isolation of machinery noise and vibration is of high importance. Minimizing the rolling and pitching motions of the hull is even more important—no extreme of luxury can offset a simple case of seasickness. Since cruising is a low-speed activity, propulsive power is usually much lower than that found in the old ocean liners.
Ferries are vessels of any size that carry passengers and (in many cases) their vehicles on fixed routes over short cross-water passages. The building of massive bridges and tunnels has eliminated many ferry services, but they are still justified where waters are too formidable for fixed crossings.
A special type of ferry is the “double-ender,” built for shuttling across harbour waters. Special docks, fitted with adjustable ramps to cope with changes in water levels and shaped to fit the ends of the ferry, are always part of a ferry system of this type.
G. General cargo ship
The once-ubiquitous general cargo ship continues to be built, though in modest numbers. Those built in the last third of the 20th century are usually fitted with deck cranes, which give them an appearance distinct from the more-specialized ship types.
G. Livestock Carrier: Livestock carriers are those ships, which specialise exclusively in the transportation of large numbers of live animals together with their requirements for the voyage. (food, water, sawdust bedding, medication, etc.). Voyages on livestock carriers generally last from three days to three to four weeks.
H. Refrigerated Cargo Ship/Reefer: A reefer ship is a refrigerated cargo ship; a type of ship typically used to transport perishable commodities which require temperature-controlled transportation, such as fruit, meat, fish, vegetables, dairy products and other foods.
3.1.3 Acquisition and Registration of Ships:
Ships are usually acquired either through private purchase or lease, better known as demise or bareboat charter. Lease is also a term used in the context of ship financing and acquisition. Ships can also be built in line with specific order by a prospective owner, or it can be built and sold by a shipbuilder or a person who ordered it to be built. All of these ways of ship acquisition are carried out under highly specialized and complex contractual arrangements which obviously fall squarely within the domain of private maritime law.43 Most contracts for purchase of ships are drafted using a standard template, suitably modified to suit the needs of the parties involved.
A ship can also be acquired through a judicial sale following an arrest of the ship. Another uncommon way, in contemporary terms, through which a ship can be acquired, is as a prize. This takes place when in times of war an enemy ship is captured and a court invested with prize jurisdiction conducts condemnation proceedings following which the claimant may acquire title to the captured vessel.44 After a ship is acquired by one of the procedures described above, it needs to be registered if it is a registrable vessel45. Registration serves a three-fold purpose:-
1. First, there is the public law function. Registration is the procedural device through which the flag state confers nationality on a ship. The granting of nationality makes a ship subject to the national legal regime without which, the ship including people on board would, figuratively, float in a legal vacuum. Nationality is thus a substantive matter whereas registration is the procedural mechanism through which it is effectuated.46 The flag in physical terms is the symbol of the ship’s nationality although in maritime terminology the word is used interchangeably with ship nationality and flag state refers to the state in which the ship is registered. By virtue of the ship’s nationality the flag state exercises jurisdiction and control over the ship and fulfils its obligations under international law.47
2. Secondly, registration serves as prima facie evidence of ownership of the ship and protects other proprietary interests such as mortgages and registrable charges. This is a private law function.
3. Thirdly, registration serves as a public record of proprietary interests. This is somewhat of a hybrid function. Also, details by which a ship can be identified such as its dimensions, tonnages and classification are recorded in the register.
The nature of the Ship Registry whether it is open, closed, or partially open/closed is a matter of national maritime policy. Under the United Nations Convention on Law of the Sea (UNCLOS) 1982, there must be a genuine link between the ship and its flag state.48
3.1.4 Proprietary Interests in Ships:
The proprietary interests in ships are of three kinds, namely:-
ii. Mortgages and
iii. Maritime liens.
i. Ownership: of ships has been briefly discussed above.
ii. Mortgage: Ship acquisitions are usually financed through maritime mortgages where the subject ‘‘ship’’ is the principal security for the loan. Maritime mortgages exist only in respect of maritime property, a term that has been judicially defined as ship, cargo and freight49. There is no compulsion in common law jurisdictions for mortgages to be registered but a commercial lender would be reckless not to do so. An unregistered mortgage is considered to be an equitable mortgage, and as such, ranks lower in priority to a registered mortgage. In many civil law jurisdictions, where there is no concept of an equitable mortgage, a mortgage comes into existence only through registration.50
iii. Maritime liens: It is not registerable interests, unlike transfers and transmissions of ships and their mortgages which are registrable interests. The confidentiality of existence of maritime lien is a fundamental characteristic which distinguishes it from other species of maritime claims. A maritime lien accrues from the moment of the event which triggered the claim and is unclear or incomplete, or rather, dormant until crystallized by arrest or proceedings in rem. It is also impossible to remove to the extent that, similar to the mortgage, it travels with the res unconditionally regardless of change of ownership, and is extinguished only by statutory time bar or application of the equitable doctrine of laches or total loss of the res.
Maritime liens enjoy the highest priority ranking ahead of possessory liens, mortgages and statutory rights in rem otherwise referred to as statutory liens, in that order. The International Convention on Maritime Liens and Mortgages, 1993 is the third attempt at international unification of the law of maritime liens.
3.1.5 Safe Manning of Ships and Seafarers’ Qualifications:
After a ship has been acquired and matters relating to her ownership and other proprietary interests have been dealt with, the ship has to be crewed and made ready for service. The flag state’s responsibilities in this regard are set out in Article 94 of UNCLOS,51 albeit in general terms. The requirements for safe manning are also found in the Safety of Life at Sea Convention (SOLAS)52 and the International Labour Organization (ILO) Convention 109 on Wages, Hours of Work and Manning. The fundamentals of safe manning are sufficiency, efficiency and safety and the specific requirements are set out in an IMO Resolution pursuant to SOLAS.
Seafarer’s qualifications in terms of training and certification requirements and also watch keeping arrangements on board are governed by the Standards of Training, Certification and Watch keeping (STCW) Convention, 1978, overhauled extensively by the 1995 amendments which also include an STCW Code.
3.1.6 Maritime Claims and Arrest of Ships:
This subject is related in some respects to the provisions on maritime liens. The international law on ship arrest is contained in the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships, Brussels, 1952. Most maritime countries are parties to this Convention. The Convention lists the types of maritime claims for which a ship can be arrested under the Convention.
A ship may be arrested within the jurisdiction in respect of a maritime claim as defined, but not for any other type of claim. The convention contains the concept of sister ship arrest. There are detailed procedural requirements pertaining to posting of bail or other form of security that will allow the ship to be released. The Convention has recently been revised one of the objectives of which was to harmonize the international regime of ship arrest with the International Convention on Maritime Liens and Mortgages, 1993.
The fundamental objective of ship arrest is to provide a claimant with security, particularly where the ship owner is not available to answer the claim or has ceased to exist. In England and other common law jurisdictions, a ship is also arrested for the purpose of founding jurisdiction in connection with the claim, which, of course, must be a maritime claim.
3.2 THE SEA PORT
What is a Port? A port is a maritime commercial facility which may comprise one or more wharves where ships may dock to load and discharge passengers and cargo. Although usually situated on a sea coast or estuary, some ports, are many miles inland, with access from the sea via river or canal.
3.2.1 Features of a Modern Port
Whereas early ports tended to be just a simple harbour, modern ports tend to be a multimodal distribution hub, with transport links using sea, river, canal, road, rails and air routes. Successful ports are located to optimize access to an active hinterland. Ideally, a port will grant easy navigation to ships, and will give shelter from wind and waves. Ports are often on estuaries, where the water may be shallow and may need regular dredging. Deep sea ports are less common, but can handle larger ships with a greater draft, such as super tankers, Post-Panamax vessels and large container ships.
Other businesses such as regional distribution centres, warehouses and freight-forwarders, canneries and other processing facilities find it advantageous to be located within a port or nearby. Modern ports will have specialised cargo-handling equipment, such as gantry cranes, reach stackers and forklift trucks.
Ports usually have specialised functions: some tend to cater mainly for passenger ferries and cruise ships; some specialise in container traffic or general cargo; and some ports play an important military role for their nation’s navy. In modern times, ports survive or decline, depending on current economic trends.
Even though modern ships tend to have bow-thrusters and stern-thrusters, many port authorities still require vessels to use pilots and tugboats for manoeuvring of large ships in tight quarters. Ports with international traffic have customs facilities.
3.2.2 Types of Ports
The terms “port” and “seaport” are used for different types of port facilities that handle ocean-going vessels, and river port is used for river traffic, such as barges and other shallow-draft vessels.
a. Dry Port
A dry port is an inland intermodal terminal directly connected by road or rail to a seaport and operating as a centre for the transhipment of sea cargo to inland destinations. Nigeria is currently working towards developing inland dry ports in all its geo-political zones.
b. Fishing Port
A fishing port is a port or harbour for landing and distributing fish. It may be a recreational facility, but it is usually commercial. A fishing port is the only port that depends on an ocean product, and depletion of fish may cause a fishing port to be uneconomical.
c. Inland Port
An Inland Port is a port on a navigable lake, river (fluvial port), or canal with access to a sea or ocean, which therefore allows a ship to sail from the ocean inland to the port to load or unload its cargo. An example of this is the Apapa Port which allows ships to travel from the Atlantic Ocean several thousand kilometres inland to ports. Such ports require regular dragging.
d. Cargo Port
A cargo Port is further categorized into a “bulk” or “break bulk port” or as a “container port”. It handles very different cargo, which has to be loaded and unloaded by very different mechanical means. The port may handle one particular type of cargo or it may handle numerous cargoes, such as grains, liquid fuels, liquid chemicals, wood, automobiles, etc. Such ports are known as the “bulk” or “break bulk ports”. Those ports that handle containerized cargo are known as container ports. Most cargo ports handle all sorts of cargo, but some ports are very specific as to what cargo they handle. Additionally, the individual cargo ports are divided into different operating terminals which handle the different cargoes, and are operated by different companies, also known as terminal operators or stevedores.
e. A Cruise Home Port
A Cruise Home Port is the port where cruise ship passengers board (or embark) to start their cruise and disembark the cruise ship at the end of their cruise. It is also where the cruise ship’s supplies are loaded for the cruise, which includes everything from fresh water and fuel to fruits, vegetables, champagne, and any other supplies needed for the cruise. “Cruise home ports” are very busy places during the day the cruise ship is in port, because off-going passengers debark their baggage and on-coming passengers aboard the ship in addition to all the supplies being loaded. Currently, the Cruise Capital of the World is the Port of Miami, Florida.
f. Port of Call
A port of call is an intermediate stop for a ship on its sailing itinerary. At these ports, cargo ships may take on supplies or fuel, as well as unloading and loading cargo while cruise liners have passengers get on or off ship.
3.3 SEA WORTHINESS
3.3.1 The Concept Sea worthiness
Sea worthiness is a concept that runs through maritime law in at least four contractual relationships. In a marine insurance voyage policy, the assured warrants that the vessel is seaworthy. A carrier of goods by sea owes a duty to a shipper of cargo that the vessel is seaworthy at the start of the voyage. A ship-owner warrants to a charterer that the vessel under charter is seaworthy; and similarly, a shipbuilder warrants that the vessel under construction will be seaworthy.
3.3.2 Statutory Worthiness
The Merchant Shipping Act 2007 makes it a criminal offence to send or attempt to send an unseaworthy ship to sea. Seaworthiness in this context relates to defective structures, equipment, under-manning, overloading etc. and the vessel may be detained. In every contract of employment at sea there is an implied obligation on the owner to ensure the seaworthiness of the ship and an allegation of unworthiness may be brought by the crew, though at least five members of the crew are required to bring the action.
3.3.3 Sea Worthiness in Marine Insurance
Under the Nigerian Marine Insurance Act 1990, in a voyage policy there is an implied warranty that the vessel is “reasonably seaworthy in all respects”:
i. In a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure insured.
ii. Where the policy attaches while the ship is in port, there is also an implied warranty that she shall, at the commencement of the risk, be reasonably fit to encounter the ordinary perils of the port.
iii. Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment for the purposes of that stage.
iv. A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.
v. In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.
3.3.4 Sea Worthiness in Carriage of Goods by Sea
Under the Common Law
At common law, when goods are carried by sea by a “common carrier” (a public carrier), then, if the contract of carriage does not contain an exception clause relating to seaworthiness, there is an absolute undertaking that the vessel is seaworthy. Liability is “strict”, meaning the carrier is liable even in the absence of negligence, see Liver Alkali v. Johnson. This does not mean the vessel need be capable of encountering any peril. The test of seaworthiness may be “that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the voyage to be performed”. However, the strict liability at common law is invariably modified in contracts of affreightment. In charter parties the ship-owner may negotiate an express clause excluding his liability for unseaworthiness or he may, as it more usual, agree to incorporate the provisions of the Carriage of Goods by Sea Act into the charter.
Article III Rule 1 of the Hague-Visby Rules provides: “The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: (a) Make the ship seaworthy (b) Properly man, equip and supply the ship (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
The Carriage of Goods by Sea Act 2004 provides: “There shall not be implied in any contract for the carriage of goods by sea to which the Rules apply by virtue of this Act any absolute undertaking by the carrier of the goods to provide a seaworthy ship.” This provision makes it clear that there is no strict liability to provide a seaworthy ship.
The McFadden v Blue Star Line (1905)53 provides that: “A vessel must have that degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it…Would a prudent owner have required that it (i.e. the defect) should be made good before sending his ship to sea, had he known of it? If he would, the ship was not seaworthy…”54
Together with the Hague Visby Rules, the common law provides that the concept of “seaworthiness” covers: the ship, its equipment and supplies,55 the crew,56 the vessel’s suitability for the particular cargo57and its suitability for the particular voyage or for particular ports.58
The Rotterdam Rules, which are intended to replace the Hague Rules, Hague-Visby Rules and Hamburg Rules, are many years away from ratification. If and when the Rotterdam Rules come into force, the carrier will have to maintain seaworthiness throughout the voyage, not just at the start. Presumably the standard of seaworthiness at sea would be somewhat lower than when in port (where refit facilities are available).
3.3.5 Sea Worthiness in Chartering
A ship-owner will normally owe the following duties to the charterer:59
1. To provide a seaworthy ship which complies with the charterparty description;
2. To properly and carefully load, handle, stow, carry, keep, care for, discharge and deliver the cargo;
3. To comply with charterers’ legitimate employment instructions;
4. To prosecute voyages with reasonable dispatch.
In Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha,60 the ship’s unsatisfactory team of engineers meant that the vessel was unseaworthy, and the consequent delay in delivery amounted to serious deviation. However, in a controversial judgment, the court held that the charterer could not cancel and was entitled only to damages, since neither breach denied the claimant of the main benefit of the contract.
3.3.6 Sea Worthiness in Building Contracts
Shipbuilding contracts will normally be effected using a standard form contract. However, the common law “business efficacy rule” in The Moorcock61 may require that seaworthiness is an implied term of the contract.
3.4.1 Definition of Cargo
Cargo or freight is goods or produce being conveyed generally for commercial gain by water, air or land. Cargo was originally a shipload. Cargo now covers all types of freight, including that carried by train, van, truck, or intermodal container.
Multi-modal container units, designed as reusable carriers to facilitate unit load handling of the goods contained, are also referred to as cargo specially by shipping lines and logistics operators. Similarly, aircraft ULD boxes are also documented as cargo, with associated packing list of the items contained within. When empty containers are shipped each unit is documented as a cargo and when goods are stored within, the contents are termed as containerised cargo.
Cargoes can be transported through marine, air, road, pipelines and rail.
3.4.2 Types of Cargo
Seaport terminals handle a wide range of maritime cargo. Examples are:-
Ø Automobiles: are handled at many ports and are usually carried on specialized roll-on/roll-off ships.
Ø Break bulk cargo: They are typically material stacked on pallets and lifted into and out of the hold of a vessel by cranes on the dock or aboard the ship itself. The volume of break bulk cargo has declined dramatically worldwide as containerization has grown. One way to secure break bulk and freight in intermodal containers is by using Tonnage Bags.
Ø Bulk cargo: Example of bulk cargo are salt, oil, tallow, and scrap metal, is usually defined as commodities that are neither on pallets nor in containers. Bulk cargoes are not handled as individual pieces, the way heavy-lift and project cargoes are. Alumina, grain, gypsum, logs, and wood chips, for instance, are bulk cargoes.
Ø Neo-bulk Cargo: Comprises individual units that are counted as they are loaded and unloaded, in contrast to bulk cargo that is not counted, but that are not containerized.62
Ø Container Cargo: They are the largest and fastest growing cargo category at most ports worldwide. Containerized cargo includes everything from auto parts, machinery and manufacturing components to shoes and toys to frozen meat and seafood.
Ø Project cargo and the heavy lift cargo: include items like manufacturing equipment, air conditioners, factory components, generators, wind turbines, military equipment, and almost any other oversized or overweight cargo which is too big or too heavy to fit into a container.
3.5 CONTRACTS FOR CARRIAGE OF GOODS BY SEA
Contracts involving the operations and management of merchant vessels and the carriage of goods by sea are referred to as maritime contracts.63 Accordingly, they are within admiralty jurisdiction and are governed by a comprehensive body of maritime law, both statutory and jurisprudential. The contracts for carriage of goods by sea include; charter party (lease of vessel), bill of lading (regulated by the Carriage of Goods by Sea Act) and furnishing of repairs, supplies and other services to vessel.
3.5.1 Charter Parties
Charter Party is an agreement under which a ship owner places a ship at the disposal of another; it is an agreement to allow another person use a ship64. The mechanism by which a ship is leased is called the Charter Party. There are three types of Charter Parties which have developed over the years. They are; the demise or bareboat charter, the time charter and the voyage charter.
a. The demise or bareboat charter differs from the other two because it is a lease of the entire vessel which empowers the chatterer (lessee) to posses, command navigate and operate the vessel. See Matude v. Lloyd Bermuda Lines Ltd65. Liabilities for the contracts and torts of master, crew and vessel falls upon the charterer and upon the vessel in rem. See Agrico Chem. Co v. M/V Ben W. Martin,66 In the other two types of charter party, the owner (lessor) remains the operator of the vessel while the charterer gets the services of all or part of the vessel for a fixed period of time or for a specified voyage or voyages as the case may be.
b. The time Charter, the owner retains the management and control of the vessel, but the charterer chooses the ports of call and cargo carried. See Moore v. Philips Petroleum Co.67 The master of the vessel is the agent of both the chatterer and ship owner.68 The master is the agent of the ship owner for the navigation of the vessel, but acts as agent of the charterer in the handling of cargo and selection of loading and discharging ports or berths.69
c. The Voyage Charter, allows the owner to provide the ship, master and crew and places them at the disposal of the charterer for the carriage of the cargo to a designated port. The voyage charterer may lease the entire vessel for a voyage or series of voyages or he may lease only a part of the vessel.
Some major charter party issues and problems includes; obligation to provide a sea worthy vessel ready to load, care of the ship and redelivery, safe port and safe berth place, freight, hire and the off-hire clause, charterer’s recovery for loss of use of the vessel, liability for cargo damage, laytime, demurrage and detention of ship, frustration and commercial impracticability, remedies and liens, indemnities and responsibilities to third parties and arbitration among others.
A charter party agreement need not be in writing but most charters today are written in form of a document drafted to accommodate the specific needs of the shipper and carrier.
3.5.2 Bill of Lading
The bill of lading is a document signed by the carrier or his agent acknowledging that goods have been shipped on a specific vessel that is bound for a particular destination and stating the terms on which the goods are to be carried.70 Each shipping line has its own form of bill of lading and there are different types of bill of lading.
Bill of lading serves as a receipt and acknowledgment that cargo of certain kind; quantity and condition have been handed over for shipment. Secondly, it serves as a memorandum for the contract of affreightment concluded between the carrier and the shipper. Thirdly, it serves as a document of title to the cargoes themselves which enables the shipper to sell them by endorsement and delivery of the bill of lading.
A typical bill of lading contains names of the shipper and consignee, a description of the goods, the shipment marks used for identification purpose, stipulations for payment of freight and details of the condition of carriage.
3.5.3 International Conventions on Carriage of Goods by Sea
Carriage of goods by sea is a key component of the subject commercial maritime law. There are sets of international conventions governing Carriage of Goods by Sea. They are:-
i. The Hague Rules;
ii. The Hague-Visby Rules;
iii. The Hamburg Rules and
iv. The Rotterdam Rules.
The choice, of the rules to be operated of course, depends on national shipping policy and is usually based on whether the country is predominantly a carrier or a shipper state.71 A state gives much consideration to which rules prevail in the countries which are its major trading partners.
The Hague Rules were designed in 1924 to impose on the carrier the legal obligation to provide a seaworthy ship at the commencement of the voyage and to carry the goods with due care. A number of exceptions were provided such as perils of the sea, navigational error, and fault in the management of the ship by the master or other servants of the ship owner.72 The carrier could also escape liability if he could prove that the loss or damage occurred without his actual fault or privity. Limitation of liability was provided on a “per package” basis. In 1968, the Rules were amended through a Protocol, mainly to deal with the “per package limitation” problem arising from the growing phenomenon of containerization. The amended version came to be known as the Hague-Visby Rules.
In 1978, another set of Rules, namely, the Hamburg Rules were developed73. The Hamburg Rules represent a radical change from the Hague/Hague-Visby scheme. The most significant feature is the nature of carrier liability, which is based on carrier negligence with a reversal of responsibility. The Hamburg Rules are generally viewed as being more favourable towards shippers and are therefore not popular with the traditional maritime states which are mostly carrier countries. It is, however, in force; most of the parties being developing countries.74
With the advent and growth of containerization, multi-modal transportation of goods is a phenomenon which is increasing in importance. The traditional form of bill of lading governed by the Hague/Hague-Visby or Hamburg Rules is inadequate to deal with this matter, as the Rules pertain to carriage of goods by sea only, whereas multi-modal or inter-modal transport involves a multiplicity of carriers of different transportation modes. Various mechanisms such as the “through bill of lading” and the seaway bill have been introduced to deal with the multi-modal issue. The main enquiry revolves around the question of which carrier is liable in the event of loss of or damage to the goods.75 The problem is compounded by the fact that in segmented multimodal carriage, the shipper enters into a separate contract with each carrier, whereby each such contract is governed by the relevant liability regime applicable to that unimodal segment of the carriage.76 Each carrier acts as an agent of the shipper vis a vis the successive carrier, but each carrier remains responsible as a principal to the shipper.
In 1980, under the auspices of UNCTAD, the Multimodal Convention (Rotterdam Rules) was created but not yet in force.77 The Convention contemplates the non-segmented form of multimodal transport and closely resembles the Hamburg Rules in terms of its liability regime. The “Rotterdam Rules” (the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea) is a treaty proposing new international rules to revise the legal framework for maritime affreightment and carriage of goods by sea. The Rules primarily address the legal relationship between carriers and cargo-owners. As at today, the Rotterdam Rules are not yet in force as they have been ratified by only few states.
The aim of the convention is to extend and modernize existing international rules and achieve uniformity of International trade law in the field of maritime carriage, updating or replacing many provisions in the Hague Rules, Hague-Visby Rules and Hamburg Rules. The convention establishes a comprehensive, uniform legal regime governing the rights and obligations of shippers, carriers and consignees under a contract for door-to-door shipments that involve international sea transport.
Nigeria, through the efforts of the Nigerian Shippers’ Council is currently making efforts to seeing that the Rotterdam Rules is domesticated and becomes operational as a domestic law. When the Rotterdam Rules is finally domesticated, it will not only promote door to door transportation and delivery of cargoes and multimodal transportation of cargoes, it will also help drive the effective operation of the current Inland Dry Port projects all over the hinterland parts of Nigeria and other neighbouring Countries.
3.6 Liens on Maritime Property
There more emphasis by ship owners, their customers and suppliers to increase the importance of the ability of each to declare a lien upon the property of the other, wherever such property is found.78
3.6.1 Lien on Cargo
A vessel and its operator have a lien upon the charterer or shipper’s cargo for that particular freight due for carriage of the cargo. The lien is often described as ‘‘possessory,’’ meaning the lien exist only when the cargo is aboard the vessel. Courts have however held that the lien arises before the cargoes are loaded and while they are on the dock, if they have been delivered into the control of the master of the vessel.79Even without express stipulation in a bill of lading, the vessel’s lien on cargo is not lost by the cargo’s removal from the vessel if the court is satisfied that the parties intended that the lien continue after unloading. See the American case of Bulkley v. The Naumkeag Steam Cotton Co.80
Maritime lien does not arise out of the breach of an ‘‘executory’’ maritime contract. Thus the failure of the shipper to deliver cargo gives rise to maritime contract claim, but that claim is not secured by a maritime lien on the cargo contemplated by the carriage contract. No lien arises to secure the payment of damages for non-performance of the unexecuted portion of the contract. See Effjohn International Cruise Holdings Inc. v A & L Sales.81
3.6.2 Lien on Vessels:
Maritime lien on vessels may either be express (by mortgage) or implied by occurrence of maritime tort or the performance of a maritime service. State Page | 29
laws may also create maritime lien on vessels in limited instances.82 Some transactions or occurrences that give rise to maritime implied lien on a vessel are; failure to pay seaman wages (excluding wages for master of the ship), maritime tort committed in the operation of the vessel, breach of an executor contract, breach of maritime charter, claims by a person providing necessaries like repairs, towage, use of dry dock facilities or marine railway etc.
Where the dispute is between an implied lien holder and a mortgage holder, the commercial instruments and maritime lien laws may be given priority. See Oil Shipping v. Sonmezz Denizcilik Ve Ticaret A.S.83
3.7 General Average
In a maritime voyage, a vessel, its cargo and the freight may be said to be ‘‘at risk’’ if the voyage is unsuccessful and when the owner of one or more of these interests may suffer loss.
General average applies when a maritime peril, lack of vessel fault and a voluntary sacrifice of one’s interest to save the voyage occurs. Maritime law dictates that ‘‘the loss occasioned for the benefit of all must be made good by the contribution of all’’. 84 General average occurs when:-
i. there is exposure danger;
ii. the danger is imminent and apparently inevitable, which means there is no probable escape except by inflicting loss upon one of the interests;
iii. there is a voluntary sacrifice, such as jettisoning cargo or stranding the vessel;
iv. the attempt to avoid the common peril is successful and
v. the party seeking contribution from the owners of the other interest is free from fault.
The sacrifice need not be damage destruction or damage to property.85 When the requirements for general average are meet, the loss is transferred from the owner of the interest which is transferred to the owners of all of the interest at risk; the owners of the ‘‘saved’’ interests pay to the owner of the ‘‘sacrificed’’ interest their pro rata share of his loss.86
3.8 Safe Manning of Ships and Seafarers’ Qualifications:
After a ship has been acquired and matters relating to her ownership and other proprietary interests have been dealt with, the ship has to be crewed and made ready for service. The flag state’s responsibilities in this regard are set out in Article 94 of UNCLOS,87 albeit in general terms. The requirements for safe manning are also found in the Safety of Life at Sea Convention (SOLAS)88 and the International Labour Organization (ILO) Convention 109 on Wages, Hours of Work and Manning. The fundamentals of safe manning are sufficiency, efficiency and safety and the specific requirements are set out in an IMO Resolution pursuant to SOLAS.
Seafarer’s qualifications in terms of training and certification requirements and also watch keeping arrangements on board are governed by the Standards of Training, Certification and Watch keeping (STCW) Convention, 1978, overhauled extensively by the 1995 amendments which also include an STCW Code.
3.9 Maritime Labour:
Maritime labour matters are mixed in scope, as there is both a contractual element setting out the terms of employment, often according to collective agreement, and public policy considerations reflected through statutory requirements to which the contractual element is subject.89 The statutory elements are quite extensive and are, in many instances dictated by relevant International Labour Organisation (ILO) instruments pertaining to maritime labour.90 All of the above matters including the welfare of seafarers, occupational safety and adequate competence and proficiency are part of the human element in shipping. It is a matter of serious concern in connection with current issues such as maritime security, casualties and the subject of refuge.
3.10 Maritime Safety:
There are essentially four components of maritime safety, namely:-
i. Ship safety;
ii. Navigational safety;
iii. Cargo safety and
iv. Occupational safety.
Much of the law is regulatory in scope but there are also private law elements pertaining to liability for damage and injury and the attendant remedy, primarily that of compensation or damages.
I. Ship Safety is concerned with how safe a ship is as a waterborne object that houses human beings and property including passengers and cargo. It necessarily deals with the concepts of structural soundness and watertight integrity and safety equipment. Therefore, the concerns associated with ship safety are primarily of a technical nature. The standards pertaining to ship safety are contained in the technical rules of classification societies setting out scantlings and in the technical safety conventions of IMO, i.e., SOLAS, MARPOL, LOADLINE and their associated treaty instruments.91 The SOLAS as a body of instruments contains comprehensive provisions concerning surveys and documentation systems for passenger and cargo ships. Survey and documentation systems under SOLAS, MARPOL and LOADLINES have now been integrated by means of a “Harmonized system of surveys and Certification” (HSSC).92
II. Navigational Safety deals with issues of safety of the ship as a manoeuvrable floating object including the safety of humans and property on board. This obviously entails rules of navigation as well as navigational equipment. The rules and standards on navigational safety are contained in the Collision Regulations (COLREGS)93 and SOLAS Conventions.94 The COLREGS are the most universally accepted maritime rules. Apart from being regulatory law, as the name entails, the rules frequently have important implications for the judicial resolution of civil liabilities in marine collision cases. The international law of collision liability is contained in the 1910 Collision Convention95 to which most maritime states are parties.
An important feature of the Convention is the express abolition of the hitherto statutory presumption of fault, under which, a ship in contravention of the COLREGS was presumed to be at fault. Among other things, the Convention sets out the rule of proportional liability according to the degree of fault in cases of collision. Where the degree of fault of each vessel cannot be determined, the liability is to be apportioned equally, and where the collision is accidental or due to force majeure, the loss lies where it falls. If a collision is caused by the fault of only one ship, then that ship only is liable to make good the damages.96
The subject of freeboard is an integral part of the maritime safety regime which includes both ship safety as well as navigational safety and it is governed by the 1966 Load line Convention.97
III. Occupational Safety manages the safety of Seafarers serving on board ships. Safety here is a matter of welfare and well-being on board in potentially hostile maritime conditions at sea. The rules and standards relating to occupational safety are contained largely in a host of conventions and treaty instruments of ILO, in particular ILO Convention 147 on Minimum Standards98, as well as STCW99 and parts of SOLAS.
IV. Cargo safety rules are also contained in SOLAS100. Cargoes carried in bulk affect the stability of the ship. If they are ore-concentrates, they tend to make the ship stiff and prone to sinking very quickly, in the event of seawater entering the holds through a hole in the hull. Other bulk cargoes have certain inherent characteristics which can make a ship unstable. If grain becomes wet, it rapidly ferments, and increases in weight causing instability. Also, bulk grain is prone to free surface effect which can cause serious stability problems. Bulk coal without proper ventilation is liable to create an inflammable gas which may ignite or cause an explosion. Bulk carriers have the worst record in terms of maritime casualties. There are also cargoes that are classed as dangerous goods whether they are carried in bulk or in packaged form. The marking, packaging, loading, stowage, carriage and discharge of such cargo are regulated by SOLAS instruments, the Carriage of Dangerous Goods Regulations and the International Maritime Dangerous Goods (IMDG) Code.
Generally, seaworthiness is an integral part of maritime safety. It pertains largely to commercial maritime law, mainly with regard to marine insurance contracts where seaworthiness is a warranty, the breach of which by the assured can deprive him of indemnification; and in carriage contracts evidenced by bills of lading, or in charterparties where specific obligations are imposed on the carrier to exercise due diligence to provide a seaworthy ship at the commencement of the voyage. There is also the notion of statutory seaworthiness101. The maritime authorities in a port can prevent an unseaworthy ship from sailing until it is seaworthy. Deficiency in safe manning or in safety equipment can render a ship unseaworthy.102
3.11 Maritime Security
Maritime Security is an issue that is in the vanguard of current concerns in the maritime world, especially the Gulf of Guinea. With increasing piratical activity at sea and the threat of terrorism, maritime security has assumed a distinctive dimension. While safety and security are both concerned with safety of life and property at sea, the concerns are founded on different premises.103
Maritime Safety concerns risks and dangers associated with misfortune in a potentially hostile maritime environment and the ability of the ship and crew to counter them. On the other hand Maritime Security is risk and danger created by conscious and deliberate violent human involvement. The international law on piracy as codified in UNCLOS104 from customary law is deficient and inconsistent in view of the new regimes of maritime zones. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005 (SUA) is another law in place to deal with these upcoming maritime security concerns. Meanwhile, recent events of terrorist activity have mobilised the international maritime community, to some extent hastily, into adopting the International Ship and Port Facilities Security (ISPS) Code.105
In summary, much work needs to be done in the area of maritime security, especially the Gulf of Guinea were Nigeria is a stakeholder and other red spots to produce a regime that is result-oriented and economically efficient and fair for the world maritime community.
3.12 Marine Insurance
The subject of marine insurance is another important aspect of commercial maritime law. The law and practice of marine insurance is largely based on English legislation which represents a codification of the law and practice which predates it. Marine Insurance, like salvage and general average, has a distinctive maritime heritage and is of great antiquity. It is the foundation of insurance law in other spheres as we know it today. There are a number of basic principles in the law of marine insurance. See S.53, 54 and 55 of the Nigerian Insurance Act 2003. Page | 34
It is essentially a contract of indemnity and the assured must have an insurable interest in the property at risk so that wagering and betting is outside its legitimacy. The doctrine of uberrimae fidei is germane to a marine insurance contract; so that non-disclosure of a material fact by either party can vitiate the contract, See the case of Power & Industrial Engineering Co. Ltd Vs NICON. The doctrine of subrogation enables the insurer to “step into the shoes” of the assured after indemnification and assert a right of action against the perpetrator who caused the loss. In the event of an actual total loss, that is where the assured is irretrievably deprived of the property, the insurer is liable to indemnify the loss to the insured value of the property. Where there is a constructive total loss, i.e., where the cost of retrieval far exceeds the post-retrieval value of the property, the assured issues a notice of abandonment, which the insurer may or may not formally accept. If he accepts the notice, after indemnifying the assured for a total loss, the insurer by virtue of the property being abandoned in his favour, becomes its owner.106 Subrogation and abandonment in marine insurance law resemble each other but are different in terms of legal effect. The former gives a right of action and the latter confers a proprietary right.107
3.13 Marine Pollution
The issue of marine pollution is of key importance in today’s maritime world. The problems relating to pollution of the seas are on-going, as evidenced by frequent disasters of huge proportions. There is, at present, a whole body of law on the subject of ship-source. Marine pollution is governed largely by international conventions.108 The law stretches across a spectrum from public international law, through international regulatory law, to international private law. In domestic spheres, there are penal laws, as well and civil liability regimes, both statutory and otherwise, which fall outside the scope of international conventions.109 Page | 35
The public international law framework for the regime of vessel source pollution is contained in Article 211 of UNCLOS. In essence, this Article requires flag states to adopt laws for the prevention, reduction and control of marine pollution applicable to their ships. Another area of public international law is the Intervention Convention of 1969 and Protocol of 1973110. The convention allows a coastal state to intervene on the high seas in cases of imminent threat of pollution to its coast or coastal interests. The International Convention on Prevention of Pollution from Ships, 1973 and the Protocol of 1978 (MARPOL 73/78) is the regulatory convention dealing with ship generated pollution caused by operational discharges.
There are six Annexes that address six different kinds of pollutants, namely; oil, noxious liquid substances, packaged harmful substances, sewage, garbage and air pollution. The Oil Pollution Preparedness, Response and Co-operation Convention, 1990 (OPRC) is also a regulatory convention; it has both a preventive as well as a remedial element. The regulation of dumping of wastes at sea is governed by the London Convention, 1972 which has been revised by the Protocol of 1996.111
There are essentially two components to the subject of wreck. One involves wreck as a navigational hazard. The other involves wreck as property. Since wrecks are found in places under state jurisdiction, it is in the public interest that the maritime administration112 takes steps to preserve the property and prevent it from being destroyed or illegally appropriated to the detriment of the owner or an assignee by subrogation or abandonment such as an insurer.113 This is in addition to the public interest in the raising and removal of a wreck from a navigable channel or fairway for navigational safety.
Salvage in maritime law involves the provision of a financial reward for the rescue of property from a maritime peril, it dates back to the Roman times.114 The rescue may occur as a result of an express contract between the owner Page | 36
and the salvor. But in many cases, the salvor acts to save marine the property without any pre-existing agreement on compensation to be paid by the owner.
Salvage payment is subject to customary law principles; danger, voluntariness and success. The principle of “no cure no pay” has been embodied in standard form salvage agreements such as Lloyd’s Open Form (LOF) which provides for the granting of the award by arbitration.115 The international law of salvage has for many years been governed by convention codifying customary law. The most recent one is the International Convention on Salvage, 1989. Its provisions are incorporated in LOF 2000,116 the latest version of the form. A significant aspect of the Convention is the special compensation regime applicable in cases of marine pollution which allows a salvor to recover reasonably incurred expenses plus an uplift of a maximum percent of his expenses for preventing or minimizing pollution, even though the operation may not have been successful in terms of ultimate preservation under a strict application of the “no cure no pay” principle. The House of Lords decision in Semco Salvage and Marine Pte Ltd. v. Lancer Navigation Company Ltd.117, with which the salvage industry became dissatisfied, prompted the creation of the Special Compensation P&I Clause (SCOPIC) incorporated in LOF 2000.
Towage operations are subject to contractual arrangements, usually under standard forms. Some jurisdictions have found it necessary to legislate on towage to codify the case law that has evolved.118 The issues involve terms to be implied in a contract, the master’s authority and duty to engage towage services if the ship is in danger, the beginning and termination of a towage service, whether the towing vessel is the servant of the tow, liability to third parties in the event of a collision and indemnity clauses. Salvage and towage often overlap where assistance is offered and rendered in a situation of danger.119
Pilotage services either rendered by a private entity or a public authority are usually based on contract terms. The pilot has conduct of the vessel at the relevant time but the master remains in command. Ships’ bridge log books Page | 37
therefore carry the notation “vessel to master’s order and pilot’s advice”. In most jurisdictions, the pilot is considered to be the servant of the shipowner whether or not pilotage is compulsory and the shipowner is thus vicariously liable in law to a third party for the pilot’s fault or negligence in navigation and ship handling120. In some jurisdictions, this vicarious liability extends only to instances of voluntary pilotage121
3.18 Limitation and Division of Liability
Civil liability in maritime law usually arises out of contract or tort. Examples of the liabilities resulting from contracts are ship sale and purchase contracts, mortgage contracts, carriage and affreightment contracts, including charter-parties and marine insurance contracts. While collision liability, damage from oil pollution, personal injury claims of crew members or passengers and losses of luggage and other personal property, groundings and damage to docks etc. fall within the scope of tortuous liability.
In most instances, the liability and compensation regimes, including the basis of liability, whether strict, absolute or fault based, are governed by international conventions, often codified into national legislation.122 There may also be liability regimes which are not covered by convention law, but may be provided for by statute, or may be governed by custom or case law jurisprudence. The limits of compensation and rules respecting the loss of entitlement to limit liability are also contained in the relevant instrument or legislation.
In the international sphere, there are two conventions which deal with limitation of liability for maritime claims, the 1957 Convention123 and the 1976 Convention on Limitation of Liability for Maritime Claims (LLMC). The previous deals only with the limitation of liability of a shipowner, whereas in the latter, deals with the entitlement to limit liability in respect of maritime claims extended to others. In the LLMC, the limits are substantially higher and the basis on which the right to limit is lost, is different. The LLMC has been amended through the Protocol of 1996 which has raises the limits significantly.
Limitation of liability in maritime law is based on the principle that the quantum of the limit is fixed to the size of the ship in terms of tonnage. The 1957 Convention, which represents the law in many jurisdictions, allows a shipowner to claim limitation only where the occurrence giving rise to the claim did not Page | 38
result from the actual fault or privity of the shipowner124. In determining whether a shipowner is barred from claiming limitation because of actual fault or privity, courts apply the doctrine of the alter ego. In other words, the shipowner is limitation-barred if the “ship’s husband” is found to be guilty of actual fault or privity. The relevance of this doctrine was rightly exemplified in cases like The Marion125 and The Lady Gwendolen126.
The limitation provisions in LLMC127 have imposed on the claimant the onus of showing that the shipowner is not entitled to limitation. The test of actual fault or privity has been replaced by the shipowner’s “personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result” being in issue.
4.0 PROCEEDINGS IN MARITIME OR ADMIRALTY LAW
Originally, Maritime or Admiralty suit was commenced by the arrest either of the person of the Defendant or of his goods, whether or not the ship or goods in question constituted the subject matter of the offence, the purpose being to make the Defendant put up bail or provide a fund for securing compliance with the judgment, if any, when it was obtained against him. Over time, this method of procedure became obsolete, but the Admiralty court succeeded in establishing a right to arrest property which was the subject matter of a dispute, and to enforce its judgments against the property so arrested, on the theory that a maritime lien to the extent of the claim attached to the property from the moment of the creation of such claim.
4.1 When an Action in Rem Lies
The Admiralty jurisdiction of the High court may be invoked by an action in rem against the ship or property in question in the case of claims to the possession of a ship or ownership of a ship or a share therein, questions arising between co-owners of a ship as to possession, employment or earnings of that ship, claims in respect of a mortgage or charge on a ship or any share therein and claims for the forfeiture or condemnation of a ship, or goods which are being or have been carried or attempted to be carried therein, or for restoration of a ship or any such goods after seizure.
The Black’s Law Dictionary 9th Edition defines an action in rem as an action determining the title to property and the rights of the parties, not merely among Page | 39
themselves, but also against all persons at any time claiming an interest in that property. It is usually an action brought for the protection of possession, ownership or other real rights in immovable property. It is one in which the named defendant is real or personal property.
The case of Rhein Mass Und See GMBH Vs Rivway Lines Ltd. is instructive. At page 277, para D – F, Ogundare, JSC delivering the judgment of the court observed:-
“… It is conceded before us by Mr. Agbakoba that in the enforcement of this cause of action, Plaintiff could proceed either against the vessels concerned or against their owner(s) or both. Where Plaintiff proceeds against the vessel, the action is one in rem and where he proceeds against the owner, the action is one in personam.”128
In relation to a number of other claims the jurisdiction may be invoked by proceedings in rem against the ship in question, or against what is generally referred to as a “sister” ship. The claims are those in respect of; damage done by or to a ship, loss of life or personal injury sustained in consequence of any defects in a ship or in her apparel or equipment or of certain acts, neglects or defaults of her owners or certain other persons, loss of or damage to goods carried in a ship, any agreement relating to the carriage of goods in a ship or for the use or hire of a ship, salvage, towage, pilotage, goods or materials supplied to a ship for her operation or maintenance, construction, repair or equipment of a ship or dock charges or dues, wages or amounts recoverable as wages by a master or member of the crew of a ship, disbursements made on account of a ship, general average, and bottomry.
And in Anchor Ltd Vs The Owners of the Ship Eleni1 PSC 14, 15; Nigerian Shipping Cases Vol. 1 p.42, Forster Sutton FCJ defined ‘action in rem’ as follows:
“An ‘action in rem’ is one in which the subject matter is itself sought to arrest and in which the claimant is enabled to arrest the ship or other property and to have it detained, until his claim has been adjudicated upon or until security by bail has been given for the amount or for the value of the property proceeded against, where that is less than the amount of the claim”.129
4.2 An Action in Personam
Subject to the important exception of claims in respect of collision and other similar cases, which are discussed below, the Admiralty jurisdiction of the high Page | 40
court may in all cases be invoked by an action in personam.130 The exercise of jurisdiction may, however, be inhibited by the operation of the rules of court relating to service of proceedings outside the jurisdiction.131 The exception mentioned applies to claims for damages, loss of life or personal injury arising out of a collision between ships, out of the carrying out or omission to carry out a manoeuvre by one or more of two or more ships, or out of non-compliance with the collision regulation.
In the case of Owners MV ‘MSC Agata Vs Nestle (Nig.) Plc. (2014) 1 NWLR (Pt 1388) p270 at 294 -296 para C – F, the Court of Appeal held that: The Black’s Law Dictionary 9th Edition defines an action in personam as:
“An action in personam is an action brought against a person rather than property. Thus an in personam judgment is binding on the judgment debtor and can be enforced against all the property of the judgment debtor. The action in personam is a natural or legal person.”
In Rhein Mass Und See GMBH Vs Rivway Lines Ltd., Ogundare, JSC turned his attention to this issue of the definition of “action in rem” and “action in personam”.132 He held as follows at page 277 – 278: “Defining the expression “action brought against a person, an action in personam,
Coker, JSC delivering the judgment in Nigeria Ports Authority Vs Panalpina (1973) 5 SC 77 at Pp 96 – 97, (1973) ANLR 408, 422 observed:-
“Etymologically an action in personam is an action brought against a person, an action to compel to do or not to do a particular thing or take or not to take a particular course of action or inaction.’’
5.0 AN OVER VIEW OF ADMIRALTY JURISDICTION IN NIGERIA
The subject ‘‘Admiralty (Maritime) Jurisdiction’’ is an important and topical threshold in maritime law. Admiralty Jurisdiction generally covers the powers of a state (the Federal High Court) to hear and determine certain maritime cases arising from actions that takes place in the high seas or other navigable waters. Nations that assert Admiralty jurisdiction usually derives such authority from their Constitutions or relevant statutes. In Nigeria, the Admiralty jurisdiction can be traced to the Colonial Courts of Admiralty Act 1890.
The present Nigerian position is primarily based on the provision of Section 251 (1)(g) & (2) of the 1999 Constitution and other statutes like the Admiralty Jurisdiction Act 1991 and the Federal High Court Act 2004, Page | 41
as amended. These constitutional and statutory provisions define the scope and extent of the jurisdiction vested on the Federal High Court as a court of first instance to exclusively deal with admiralty matters in Nigeria.
5.1 Historical Evolution of Admiralty Jurisdiction in Nigeria:
Before the promulgation of the Admiralty Jurisdiction Act, 1991, the English Administration of Justice Act 1956 was the applicable law in Nigeria on the subject matter of Admiralty Jurisdiction.133 The development of this section of law in Nigeria has revolved around the exclusive jurisdictional powers to adjudicate on admiralty cases between the State High Courts and the Federal High Court.
But the promulgation of the Admiralty Jurisdiction Act, 1991 has helped in preserving the distinctive feature in exercise of admiralty jurisdiction and also attempted to define the substantive content, territorial content and territorial reach of admiralty jurisdiction.134 S.1 (1)(a)&(b) provides for exclusive jurisdiction of the Federal High Court to hear and determine matters relating to a proprietary interest in a ship or aircraft or any maritime claim specified in S.2 of the decree.135
5.2 Admiralty Jurisdiction under Nigerian 1999 Constitution
The provision of Section 251(1)(g) of the 1999 Constitution which vests exclusive original jurisdiction in Admiralty matters on the Federal High Court is a direct transfer from earlier military Decrees promulgated by the then Federal Military Government in 1991.136 Subsequently the Admiralty Jurisdiction Procedure Rules, 1993 which was enacted to provide some guide for the prosecution and defence of Admiralty proceedings.
To prevent the jurisdictional controversy between the Federal High Court and the State High Court as experienced under the defunct 1979 Constitution, the general jurisdiction of the Federal High Court was pursuant to Section 251(1)(g) confered original jurisdiction on the Federal High Court “to the exclusion of any other court” in respect of items mentioned therein.137 As an existing law also, Section 7(1)(g) of the Federal High Court Act138 has been fashioned to be in Page | 42
conformity with the provisions of Section 251 of the 1999 Constitution.139 One other innovation introduced by the 1999 Admiralty Jurisdiction Act was that the maritime claims within the exclusive jurisdiction of the Federal High Court were clearly spelt out unlike the previous position where recourse had to be made to the Administration of Justice Act, 1956 of England.140
5.3 Scope of the Admiralty Jurisdiction of the Federal High Court
The extent of the admiralty jurisdiction of the Federal High Court in Admiralty matters is not clearly defined under the 1999 Constitution. However, the admiralty jurisdiction is defined in Section 1 of the Admiralty Jurisdiction Act to include; jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in Section 2 thereof. Section 3 of the Act extends the jurisdiction to all ships, irrespective of the places of residence or domicile of their owners and to all maritime claims, wherever arising.141 Statutorily, the extent of the Admiralty jurisdiction of the Federal High Court as it relates to maritime claims includes:-
i. claims relating to proprietary interest in a ship;142
ii. any jurisdiction in connection with any matter relating to a ship prior to the commencement of the Act in 1991;143
iii. any action or application relating to any cause or matter by any ship owner involving limitation of liability;144
iv. any claim for liability incurred for oil pollution damage;145
v. any matter arising from shipping and navigation on any inland waters declared as national water ways;146
vi. any matter arising within a Federal port including claims for loss of or damage to goods;147
vii. any documentary credit arrangement involving the importation or exportation of goods to and from Nigeria in a ship;148
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viii. any cause or matter arising from the constitution and powers of all ports authorities and the National Maritime Authority;149
ix. any criminal cause and matters arising out of or concerned with any of the matters enumerated above;150 and
x. any monetary or non-monetary agreement or purported agreement involving the carriage of goods by sea whether or not the contract of carriage is executed.151
6.0 ARBITRATION IN RESOLUTION OF MARITIME DISPUTE
Arbitration generally is a mechanism for settlement of dispute between parties who agree not to go before the formal Court, but agree to accept as its final decision the rulings of the Arbitrator(s) of their choice, in a place of their choice, usually under specific rules, which avoid much of the formalities, details, proofs and procedures required by the courts.
Maritime Arbitration simply means the process of resolving maritime disputes through arbitration.152
Maritime disputes usually span international borders, and the unwillingness of parties in international contracts to submit to jurisdiction of foreign courts emphasises the importance of arbitration in resolving maritime disputes. There are great advantages for a country to be recognised as a place for international arbitration activities. However, two major concerns must be addressed by a country aspiring to be recognised as international or maritime arbitration centres. First is, does the aspiring country has a favourable disposition to arbitration? Do its courts have favourable disposition to arbitration agreements awards? Investors will also be concerned about the availability of human resource with capability in this field and the existence of strong arbitral institutions.
6.1 Arbitration Laws in Nigeria
Arbitration in Nigeria is governed by both Federal and State laws. The Federal Law is the Arbitration and Conciliation Act Cap A18 LFN 2004 and it is a modification of the 1958 United Nations Commission on International Trade Law (UNCITRAL) model Law on international commercial arbitration. S. 34 of the Arbitration and Conciliation Act provides that:
‘‘A court shall not intervene in any matter governed by this Act except where so provided in this Act’’ Page | 44
The essence of the above provision is to exclude any general or residual powers given to courts within the domestic system and which are not listed in the model law. The provision intends to accelerate the arbitral process by discouraging delays caused by international commercial arbitration.
S. 2 of the Arbitration and Conciliation Act provides for enforcement of arbitration agreements and that an arbitration agreement shall be irrevocable except by agreement of the parties or by leave of the court or judge. S. 4 of the Act requires a court before with an action subject to arbitration agreement is brought to stay the court proceedings unless the agreement is null and void, inoperative or incapable of being performed. S. 31 of the Act also necessitate the court when considering an application for a stay of court proceedings of matters brought in disregard of arbitration agreement to make an order staying the court proceedings if satisfied.
6.2 The New York Convention
It was ratified by 144 countries including Nigeria. The convention has been described as a single most important pillar on which the structure of international arbitration rest. The convention mandate courts of signatory states to recognise and enforce arbitration agreements and awards in the territory of other states. But recognition of an international award may be set aside based on some exceptional grounds stipulated in Article V (1) (a) – (e) and (2) (a) & (b) of the New York Convention. See the case of Gulf Petrol Trading Company Inc & Ors Vs. NNPC & Ors
Some States in Nigeria have adopted the Federal Arbitration Act as their arbitral law. Lagos is one of the states who have passed the Arbitration Act into their state law.
6.3 National Maritime Legislation on Arbitration
The Admiralty Jurisdiction Act (AJA) vests the Federal High Court with jurisdiction in respect of admiralty matters. In Owners of M.V Lupex vs. Nigerian Overseas Chattering and Shipping Ltd153, the Supreme Court sets aside the decision of the High Court and affirmed the Court of Appeal refusing to grant a stay of proceedings over a suit commenced in breach of charter party agreement which provided for arbitration in London under English Law. The Supreme Court affirmed the position of the law that an arbitration agreement must be enforced.
6.4 The Federal High Court Act and Rules Page | 45
S.17 of the Federal High Court Act refers to Alternative Dispute Resolution (ADR).154 S. Provides that the Court may promote reconciliation amongst the parties thereto and encourage and facilitate the amicable settlement thereof.
Order 52 of the Federal High Court Rules contains extensive provisions on arbitration including the courts power to appoint arbitrators, finding of the arbitral tribunal, stating the award in the form of a special case for the opinion of the court, setting aside enforcement of arbitral awards and registration of foreign arbitral awards.
6.5 International Framework (Arbitration and Treaties on the Carriage of Goods by Sea)
The Hague Rules and the Hague/Visby Rules do not contain provisions on arbitration though the time bar limits may impact on the application of arbitral clauses. The Hamburg Rules contains specific rules on arbitration. Article 22 of the Hamburg Rules provides that an arbitration clause in a charter party must be specifically incorporated by reference into the bill of lading by a special annotation for such a clause to be binding upon a holder who has acquired the bill in good faith. The article also prescribes that the place of arbitration may be instituted at the option of the claimant at a place in a state within whose territory is situated, the principal place of business or residence of the defendant, place where contract was made, port of loading or discharge or any place designated for arbitration in the Agreement.
In conclusion the Nigerian legislation is in support of arbitration as a means of settling maritime disputes. The Courts has over the years shown tendency to set a high bar for interfering with the findings of an arbitral tribunal. Nigeria has a viable maritime arbitrators association and it has built up capacity in the field with the viability of highly trained and skilled arbitrators.
Finally, there is need for the National Assembly to pass the Bill for the amendment of the Arbitration and Conciliation Act 2004 currently before the National Assembly. If the Bill is passed, it will help build confidence that Nigeria is conforming to international best practices in arbitration and ease of doing business, which will boost the country’s economy.
7.0. INTERNATIONAL MARITIME TREATIES AND CONVENTION
7.1 Nature of International Maritime Laws (Treaties and Conventions) Page | 46
Most of the international laws are derived from a number of sources, of which, custom and treaties are the principal ones.155 Generally, treaty law takes precedence, provided it is not inconsistent with certain fundamental, overriding principles of international law, from which no derogation is ever permitted, also known as jus cogens. Treaties are basically contractual in nature and are binding only on states that signed to it as parties.156 While in contrast, customary law is binding on all states. The term “treaty” in practice is also known or called convention.
Article 2 of the Vienna Convention on the Law of Treaties, defines treaties as:-
“an agreement whereby two or more states establish or seek to establish between themselves a relationship governed by international law”.
Instruments such as “Protocols” and “Final Acts” are of a primary legislative character; and “Regulations” appearing as Annexes to Conventions, e.g., the MARPOL 73/78 Convention, have a secondary legislative character.157 A Protocol can take different forms and is usually less formal than a convention proper. There are several other instruments generated by international law-making bodies such as IMO which are not legally binding but are persuasive. These are referred to as soft law or para-droit and include Resolutions, Codes, Declarations, Recommendations, Guidelines, etc.
The goals of regulatory law are different from those of private law. Regulatory conventions such as LOADLINE, SOLAS, MARPOL and COLREGS and their related instruments are provided to regulate some maritime activities for the protection of the wider public interest. For that reason they are relatively more universal in scope and acceptance. When it comes to private law conventions, state and private interests with economic and other insinuations are more at stake, with the result that international rulemaking is fragmented. In the subject of carriage of goods by sea, for instance, there are presently four (4) sets of international rules which are in force, namely, Hague Rules, Hague-Visby Rules, Hamburg Rules and Rotterdam Rules.
The lack of uniformity in the international law is obvious. There are also private law international instruments such as the York-Antwerp Rules on General Average which are not conventions and therefore states are not parties to them. The York-Antwerp Rules are incorporated as terms of private contractual instruments, mainly marine insurance policies and charterparties.158 Page | 47
7.2 International Maritime Law Institutions
There are principally four institutions that are involved in the rule-making practice in international maritime law. They are:-
i. International Maritime Organisation (IMO)
ii. United Nations Conference on Trade and Development (UNCTAD)
iii. International Labour Organisation (ILO)
I. International Maritime Organisation (IMO) is exclusively concerned with international shipping and also involved in the development of regulatory and private maritime law conventions. As such, it has the most predominant role to play in the unification of international maritime law which is evident from the number of counties who are parties to its major regulatory convention like; SOLAS, MARPOL, LOADLINE and COLREGS etc. The IMO was established as a consultative body created to promote international maritime safety, but now it is in effect, a quasi-legislative body with an increasing interest in the protection of the seas from ship-source pollution, and currently in maritime security as well159 The private law conventions such as the Salvage Convention and those dealing with limitation of liability, such as CLC, NUCLEAR, PAL, LLMC, etc. deal with legal rights and civil liabilities within the sphere of private law.160
II. International Labour Organization (ILO) also plays a prominent role in the development of uniformity in international maritime law. As an inter-governmental organization within the United Nations system, it is rather unique in that it has a tripartite structure. Government, industry, as well as labour are all represented on national delegations and participate in the rule-making process. The Governing Body of the Organization is its main organ and one of its advisory bodies is the Joint Maritime Commission which is a bipartite body representing shipowners and seafarers. The implementation of ILO instruments is not only achieved through national legislative action, but in appropriate cases, is done through incorporation of the provisions into collective agreements161. This is not surprising since maritime labour law is of a hybrid type consisting of a regulatory law element, as it is an important part of public socio-economic Page | 48
policy, as well as a private law element because it is substantially contractual in nature.
III. United Nations Conference on Trade and Development (UNCTAD) is focused on the interests of developing countries. Within the scope of its mandate, UNCTAD has been instrumental in the adoption of the United Nations Convention on a Code of Conduct for Liner Conferences, 1974, the International Multimodal Transport of Goods, 1980, Conditions for Registration of Ships, 1986, and Carriage of Goods by Sea, 1978, otherwise known as the Hamburg Rules162. Besides these conventions, UNCTAD has been active in formulating model charterparty clauses, attempting to reform the law of general average and formulating draft model legislation for Marine Insurance.
IV. CMI is a non-governmental organization (NGO) which ardently promotes the unification of international maritime law and continues to play a pre-eminent role in the development of rule-making instruments. It is by far the most renowned NGO in the maritime law field and is also the oldest, founded in 1896. It is the international parent body of the various national maritime law associations whose memberships consist of private maritime lawyers. Prior to the establishment of the IMO, international maritime conventions were almost always initiated through the aegis of the CMI. The approach of the CMI towards uniformity has been to unify the substantive maritime law rather than to seek private international law solutions163.
7.3 Implementation and Interpretation of Maritime Treaties and Conventions
When a state becomes a party to a convention, by the process of ratification, accession, adoption or acceptance, the legal effect of it is that the state becomes bound by the convention and is therefore obliged to implement it by incorporation into its body of national law. If the state fails to implement the convention, it is nevertheless subject to it vis a vis other state parties, but it cannot enforce the convention against them, unless the convention becomes part of the law of the land by whatever legal process is applicable in that state.164 The implemented convention will likely be subjected to interpretation by national courts for interpretation. Page | 49
It is a fundamental premise that the application and effect of international conventions within the domestic legal order is governed by the domestic constitutional law, or other supreme law of the land165. In the monistic method of implementation, where it is so provided in the constitutional law, an international convention can become part of the domestic law simply as a consequence of its ratification or accession by the state. Virtually no legislative action is required.
The Constitution of the Federal Republic of Nigeria in S. 12 (1) provides that “No treaty between the Federation and other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.
The Constitution of the United States, provides that a treaty, once it is ratified becomes part of the “… supreme law of the land, and all judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”166. In Belgium, France and the Netherlands as well, a convention which has been accepted by the state and which has entered into force internationally, automatically becomes part of the law of the land without the need for any incorporation measures or legislative action167. But in some countries like Nigeria, the convention must be promulgated by official publication.
8.0 RESPONSIBILITIES OF AGENCIES OPERTING IN THE NIGERIAN MARITIME INDUSTRY (NPA, NSC, NIMASA, NIWA)
We shall look at the Legal Responsibilities of Operators in the Nigerian sea Ports, with emphasis on the Nigerian Ports Authority, Nigerian Shippers Council, National Inland Waterways, Nigerian Maritime Administration and Safety Agency, Terminal Operators, Shipping Agencies and Freight Forwarders.
8.1 NIGERIAN PORTS AUTHORITY (NPA)
The Nigerian Ports Authority was established in 1954 pursuant to the Ports Act of 1954. The Ports in Nigeria at the present cater for 45% of the total maritime trade in the West African sub-region, with cargo throughput averaging 76 million metric tons of cargo per annum. From just two main ports in 1954, thePage | 50
Lagos Port (Apapa Quays) the construction of which berths began in 1921 and the Port Harcourt Port which opened for business in 1916, Nigeria at the moment has six main ports known as Lagos Ports complex, Tin Can Island Port complex, Calabar Port, Port Harcourt Port, Onne Ports complex and Delta Ports complex.168
The NPA Act imbue the Authority with the power among other things to: “construct, execute, carry out, equip, improve, work and develop ports, docks, harbours, piers, wharfs, canals, water courses, embankments and jetties”
Legal Responsibilities of the Nigerian Ports Authority (NPA)
Legal responsibilities of the NPA are provided in its enabling Act and as well as its responsibility within the framework of the port concession regime, includes. Section 7 of the Nigerian Ports Authority Act provides that the functions of NPA shall be to:
a. provide and operate, in the ports, such facilities as appear to it best calculated to serve the interest of Nigeria;
b. maintain, improve and regulate the use of the ports;
c. ensure the efficient management of port operations, optimal allocation and use of resources, diversification of sources of revenue and guaranteeing adequate returns on its investments, in order to contribute effectively to the wellbeing of the Nigerian society;
d. provide, for the approaches to all ports and the territorial waters of Nigeria, such pilotage services and lights, marks and other navigational services and aids, including cleaning, deepening and improving of all waterways;
e. provide facilities for:-
i. berthing, towing, mooring, moving or dry-docking of ships, in entering or leaving a port or its approaches;
ii. the loading and unloading of goods or embarking or disembarking of passengers in or from a ship;
iii. the lighterage or the sorting, weighing, warehousing and handling of goods; and
iv. for the carriage of passengers or goods;
f. manage, supervise and control or take part in the management, or control of any company or undertaking in which the Authority is interested, by reason of shareholding or otherwise and for that purpose Page | 51
appoint and remuner- ate directors, accountants, other experts and agents;
g. provide and use appliances for the towage or protection, or salvage of life and property or for the prevention of fire within Nigeria and on vessels on the high seas;
h. supply water to shipping vessels;
i. control pollution arising from oil or any other substance from ships using the port limits or their approaches;
j. provide and operate such other services as the Minister may, from time to time, require; and
k. carry out such other activities which are connected with or incidental to its other functions under this Act.
The provisions of section 7 of the NPA Act and the Regulations made pursuant to section 32 and Bye-laws made pursuant to section 40(1) are comprehensive enough to enable NPA carry out is functions, initiate actions and programmes which are at present in place in the exercise of its responsibilities. It is pursuant to the provisions referred to above that NPA carries out:-
a. Control of ships entry and exit from the ports
b. Wrecks removal from the ports
c. Access control of persons/trucks
d. Dredging, channels/quay apron/common user areas maintenance
8.2 NIGERIAN SHIPPERS’ COUNCIL (NSC)
The Nigerian Shippers Council is established pursuant to the NSC Act Cap N133 LFN 2004. S. 3 of the NSC Act provides for the statutory functions of Nigerian Shippers’ Council as follows:
a. To provide a forum for the protection of the interest of shippers on matters affecting the shipment of imports and exports to and from Nigeria;
b. To encourage the formation of Shippers’ Associations all over the country;
c. To provide a forum for consultation between the conference and non- conference lines, tramp-owners, the Nigerian Ports Authority and the Government of the Federation on matters of common interest;
d. To negotiate and enter into agreements with Conference Lines and non-Conference Lines, ship-owners, the Nigerian Ports Authority and any other bodies on matters affecting the interests of shippers;
e. To advise the Government of the Federation, through the Minister, on matters relating to the structure of freight rate, availability and adequacy
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of shipping space, frequency of sailings, terms of shipment, class and quality of vessels, port charges and facilities and other related matters;
f. To assess the stability and the adequacy of existing services and make appropriate recommendations in that behalf;
g. To consider the problems faced by shippers with regards to coastal transport, inland waterways transport and matters relating generally to the transportation of goods by water and advise Government on possible solutions thereto;
h. To promote and encourage the study and research into problems affecting shippers in Nigeria;
i. To arrange from time to time seminars and conferences on any matter relating to its functions in Nigeria;
j. To carry out such other activities as are conducive to the discharge of its functions under this Act.
Pursuant to the NSC Port Economic Regulation Order 2015 and the Port Economic Regulation 2015, the Nigerian Shippers’ Council is also empowered as the Port Economic Regulator to:
a. Provide guidelines on tariff setting in order to guide against arbitrariness;
b. Monitor and enforce standards of service delivery to ensure availability, accessibility, affordability, stability, predictability and adequacy of services;
c. Encourage competition and guard against the abuse of monopoly and dominant market positions;
d. Perform mediatory role among stakeholders;
e. Establish accessible and modern dispute resolution mechanism;
f. Regulate market entry and exit;
g. Promote efficiency in the provision of port services;
h. Minimise high cost of doing business and prevent its inflationary effect on the Nigerian economy;
i. Encourage private sector investment in the port sector;
j. Monitor and ensure compliance by all parties with the provisions of the Port Concession Agreements.
Other functions of the Nigerian Shippers’ Council are contained in the subsidiary legislations as follows:-
a. The Nigerian Shippers’ Council (Local Shipping Charges) Regulations 1997.
b. The Nigerian Shippers’ Council (Inland Container Depot) Regulation 2007.
c. The Nigerian Shippers’ Council (Container Freight Station) Regulation 2007.
8.3 NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY (NIMASA) Page | 53
The Nigerian Maritime Administration and Safety Agency (NIMASA) is a regulatory and promotional maritime agency. The Agency was created from the merger of National Maritime Authority and Joint Maritime Labour Industrial Council (former parastatals of the Federal Ministry of Transport) on the 1st August 2006. The obligation of regulating the Maritime industry in Nigeria rests on the Agency through the relevant instruments:-
i. Nigerian Maritime Administration and Safety Agency Act. 2007.
ii. Merchant Shipping Act. 2007
iii. Coastal and Inland Shipping (Cabotage) Act 2003.
The Agency was established primarily for the administration of Maritime Safety, Seafarers Standards and Security, Maritime Labour, Shipping Regulation, Promotion of Commercial Shipping and Cobatage activities, Pollution Prevention and Control in the marine environment, the Agency also implements domesticated International Maritime Organization (IMO) and International Labour Organization (ILO) Conventions. The Core Functions of the Nigerian Maritime Administration and Safety Agency (NIMASA) are as listed below:
a. Pursue the development of shipping and regulatory matters relating to merchant shipping and seafarers.
b. Administration and regulation of shipping licenses.
c. Administration, Regulation and Certification of Seafarers.
d. Establishment of Maritime Training and Safety Standards
e. Regulation of safety of shipping as regards the construction of ships and navigation.
f. Provision of Maritime Search and Rescue Services
g. Provide direction and ensure compliance with vessels security measures
h. Carry out Air and Coastal Surveillance
i. Control and prevent Maritime Pollution
j. Develop and implement policies and programs, which will facilitate the growth of local capacity in ownership, manning and construction of ships and other maritime infrastructure.
k. Enhance and administer the provision of Cabotage Act. 2003
l. Perform Port and Flag State duties.
m. Provide Maritime Security.
n. Establish the procedure for the implementation of conventions of the International Maritime Organization (IMO) and the International Labour Organization (ILO), and other international conventions to which the Federal Republic of Nigeria is a party on Maritime Safety and Security,
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Maritime Labour, Commercial Shipping, and for the implementation of Codes, Resolutions and Circulars arising there from.
8.4 NATIONAL INLAND WATERWAYS AUTHORITY (NIWA)
The National Inland Waterways Authority (NIWA), hitherto Inland Waterways Department (IWD) of the Federal Ministry of Transport, metamorphosed into an Authority vide an act of the National Assembly, CAP 47, Laws of the Federation of Nigeria (LFN), 2004 (Decree No. 13 of 1997), established with the primary responsibility to improve and develop Nigeria’s inland waterways for navigation.
The law establishing NIWA gave it the following statutory roles:-
a. Provide regulation for inland water navigation;
b. Ensure development of infrastructural facilities for a national inland waterways connectivity with economic centres using the River Ports and nodal points for inter-nodal exchanges;
c. Ensure the development of indigenous technical and managerial skills to meet the challenges of modern inland waterways transportation;
d. There are several other functions and powers of the authority properly enunciated and documented in laws establishing NIWA (NIWA ACT CAP N47 LFN 2004).
Other functions and powers of the Authority
Ø undertake capital and maintenance dredging;
Ø undertake hydrological and hydro graphic surveys:
Ø design ferry routes:
Ø survey, remove, and receive derelicts, wrecks and other obstructions from in land waterways;
Ø operate ferry services within the inland waterways system;
Ø undertake installation and maintenance of lights, buoys and all navigational aids along water channels and banks;
Ø issue and control licenses for inland navigation, piers, jellies, dockyards;
Ø examine and survey inland water crafts and shipyard operators;
Ø grant permit and licenses for sand dredging, pipeline construction, dredging of slots and crossing of waterways by utility lines, water intake, rock blasting and removal;
Ø grant licenses to private inland waterway operators;
Ø approve designs and construction of inland river crafts;
Ø approve and control all (i) jetties, dockyards, piers within the inland waterways; (ii) advertising within the right-of-way of the waterways:
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Ø reclaim land within the right-of-way;
Ø undertake the construction, administration and maintenance of inland river-ports and jetties;
Ø provide hydraulic structures for river and dams, bed and bank stabilisation, barrages, groynes;
Ø collect river tolls;
Ø undertake the production, publication and broadcasting of navigational publications, bulletins and notices, hydrological year hooks, river charts and river maps;
Ø carry out consultancy and contractual services;
Ø represent the Government of Nigeria at national and international commissions that deal with navigation and inland water transportation;
Ø subject to the provisions of the Environmental Impact Assessment Act, carry out environmental impact assessment of navigation and other dredging activities within the inland water and its right-of-ways;
Ø undertake erection and maintenance of gauges, kilometre boards, horizontal and vertical control marks;
Ø advise government on all border mailers that relate to the inland waters;
Ø undertake acquisition, leasing and hiring of properties;
Ø run cruise boats;
Ø carry out boat repairs, boat construction and dockyard services; and
Ø clear water hyacinth and other aquatic weeds.
8.5 THE NATIONAL TRANSPORT REFORM BILLS
In line with Government’s effort towards reforming and restructuring of the entire transport industry by focusing on policy, legal and regulatory reforms of the maritime, rail, air and road sectors through, the National transport Reforms Bills, comprising of the National Transport Commission Bill, Ports and Habour Authority Bill, Nigerian Railway Bill and National Inland Waterways Authority Bill were initiated and currently before the National Assembly, at different legislative stages. These Bills if passed into law will help allow for private sector participation and indeed effective regulation of the port sector and the entire transport industry.
This paper has attempted to summarily present a vastly unique and specialized subject in law. The attempt is just a tip on the iceberg of a vast and complex subject called maritime law. As we have seen in the presentation, maritime Page | 56
maw consists of numerous components or subjects. It is international in its scope and application, continuously in motion and has a component related to virtually every branch of law possible on land. This is simply because a shipboard community is basically a microcosm of a society onto the dry land.
This paper has tried to present a summary of the past antecedents and chronological developments of the historical evolution of maritime law. Key topics that cover the subject area of maritime law were presented in a summarised and general form. Proceedings in maritime or admiralty law was examined, an overview of admiralty jurisdiction in Nigerian under the 1999 Constitution was discussed in line with the powers of the Federal High Court, being the Court conferred original jurisdiction to handle matters related to maritime law in Nigeria.
The paper also looked at the scope of international conventions and treaty instruments, the principal international maritime law institutions that are involved in the rule-making practice in international maritime law and process of ratification, accession, adoption or acceptance of maritime treaties and convention, which differs from one country to another. An understanding of the manner in which maritime conventions should be implemented and construed is important, and this has been addressed in contextual detail.
As events unfold in the maritime world of our times, it is a responsibility upon all lawmakers, jurists, captains of maritime industries, government agencies, stakeholders and the general public to take positive action that will significantly meet the current challenges, needs and interests of our present-day shipping and maritime industry. This can be achieved through commitment, innovative thinking and decisive actions in line with current modern day realities.
Also, it is a source of constant concern to me that most Faculties of Law in Nigerian Universities do not offer Admiralty and Maritime Law. As a result, few law students receive even a modicum of training in this important area of law. I therefore recommend that a case be made that Admiralty and Maritime Law be made one of the most important electives in the study of law in our Universities curriculum.
Finally, Nigeria as at today is a signatory to key maritime treaties and conventions aimed at improving the administration, operation and regulation of the maritime and shipping industry, in line with current global best practice and standards. But unfortunately some of these treaties and conventions are yet to be domesticated in Nigeria. The lacuna in our Maritime Law, I must emphasise, has negatively affected the quality and efficacy of court decisions in an effort to administer maritime disputes. Page | 57
I hereby, call on the National Assembly to partner with relevant stakeholders in the industry, towards providing a mechanism for speedy domestication of these pending maritime treaties and conventions.
Merchant Shipping Act, Cap M11 LFN, 2004.
HASSAN BELLO FCIArb
NIGERIAN SHIPPERS’ COUNCIL