Safety at sea and collision regulation in Nigeria
Advocaat Law, Lagos
Advocaat Law, Lagos
It is incontrovertible that safety is the priority of every vessel and seafarer when embarking on a voyage. It is for this reason, that maritime nations have designed laws governing the safe passage of ships. By Section 216 of the Merchant Shipping Act of 2007 (the MSA) Nigerian maritime law on safety at sea is largely based on the various conventions and protocols adopted by various Member States of the International Maritime Association. The MSA creates the office of a Surveyor of Ships, to be appointed by the Minister whether generally or for any specific purpose, or occasion, and whose statutory responsibility is to inspect a vessel to ascertain its sea worthiness.
Evidence of seaworthiness usually takes the form of a certificate issued by the Surveyor of Ships. Section 219(4) of the MSA requires the owner of a Nigerian ship or coastal trade and inland water vessel to ensure that the ship is surveyed in the method described by the Act, at least once a year. The Minister is empowered pursuant to the MSA Act, to issue the following certificates:
certificate of survey;
safety certificates to passenger ships;
certificates for cargo ships of safety equipment, and exemption certificates;
certificates for cargo ships of radio and exemption certificates; and
general safety certificates, short voyage safety certificates, safety equipment certificates, or radio certificates.
The importance of the above certificates cannot be overstated, particularly for vessels flying the Nigerian flag on an international voyage as it is illegal for a Nigerian ship to proceed on an international voyage from a port in Nigeria without possessing the necessary certificates.
Certificates of survey granted in other countries
A foreign ship, which is not a Safety Convention passenger ship, may possess a foreign certificate of survey attested to by an appropriate officer at a port in a foreign country. The position of the Nigerian maritime law pursuant to section 226(1) of the Merchant Shipping Act, is that the Minister if ‘satisfied upon the production of such certificate that:
the ship has been officially surveyed at the port;
the certificate remains in force; and
as to the matters covered by the survey made for the purposes of the certificate, it appears to meet substantially the requirements of this Act, the Minister may; subject to compliance by the owner with any condition which the Minister may specify, direct that, the certificate shall be deemed to be a certificate of survey issued under this Act, and the certificate shall have effect accordingly.’
The essence of section 226(1) of the Merchant Shipping Act, is largely to encourage cross-border maritime transactions and ease of doing business in Nigerian ports. However, section 226(1) Merchant Shipping Act, can only be applied by the Minister to a foreign ship where the country which issues such certificates, has a corresponding provision for Nigerian survey certificates. Therefore, where there is no such reciprocity, the Minister has the discretion under section 226(2) of the MSA not to allow the provision of subsection (1) in favour of that foreign ship.
Maritime collisions under Nigerian maritime law
A collision between ships is deemed an unlawful act or omission and liability depends on the capacity to prove negligence. Ships proceeding along the course of a narrow channel or fairway are expected to take early precautions to allow sufficient sea room for the passage of other ships.
The International Regulations for the Prevention of Collision at Sea 1972 was adopted on 20 October 1972 and came into force on 15 July 1977. The Convention no doubt, has international application, but this is subject to local laws. Nigerian maritime law, clearly makes provisions for guidelines to be adopted in a addressing maritime collision in Nigeria. The power to make collision rules under the Merchant Shipping Act is vested in the Minister with respect to ships, for the prevention of collisions.
Sections 267-275 of the MSA carefully detail safety of navigation and guidelines for ship owners and masters to prevent collisions. The owners, masters and/or persons in command of a ship or aircraft are mandated and/or duty-bound to comply with Prevention of Collision Rules. However, where a damage to a person or property arises from the non-compliance by any ship or aircraft with any of the collision rules, the damage shall be deemed to have been occasioned by the wilful default of the officer in charge of the deck of the ship, unless it is shown to the satisfaction of the court that the circumstances of the case made a departure from the rules necessary.
In Nigeria, the MSA, has provided guidelines on how collision damage should be assessed. Where there has been a collision, a claimant can only be entitled to recover such damages as may reasonably be the direct and immediate consequence of the collision. The damages recoverable shall be such as to place the claimant in the same financial position as they would have been, had the collision not occurred. Collision claims fall under the general category of claims that can be instituted under maritime law and therefore a party who seeks to invoke the admiralty jurisdiction of the Federal High Court in Nigeria on a collision claim must do so within three years of the cause of action arising, otherwise the action will be considered statute barred and unenforceable.