Tiwalade Aderoju

Olympus Solicitors and Advocates, Lagos

   

Introduction

The sea is a crucial medium through which human trade and commerce is conducted; it is also a means of voyage, a valuable source for mineral extraction and power generation and an essential source of the blue economy.[i] It is of vital importance for Nigeria, as a coastal state located strategically on the west coast of Africa in the Gulf of Guinea, to have an effective maritime legal regime for the regulation and protection of sea activities.

The legal framework for maritime protection in Nigeria includes the Constitution,[ii] statutes and government regulations, case law, which provides binding judicial precedents, and international maritime conventions.

Legal regime on maritime legislation

The following legislations are necessary for a good understanding of the body of laws and the rules of procedure regulating the business of transportation of goods and passengers, use of mineral resources, commerce and navigation on Nigeria waters.

The Constitution

The 1999 Constitution of the Federal Republic of Nigeria (as amended) (the ‘Constitution’) vests ownership of minerals, mineral oils and natural gas in the government of the federation. This extends beyond resources located in the land territory to those located in the territorial sea, including the Exclusive Economic Zone of Nigeria.[iii]

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

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

Admiralty Jurisdiction Act

Further to the aforementioned provisions of the Constitution on the jurisdiction of the Federal High Court, the Admiralty Jurisdiction Act provides for the extent of the jurisdiction conferred on the court as follows:[vii]

1. 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 of this Act;
2. any other admiralty jurisdiction being exercised by any other court in Nigeria immediately before the commencement of this Act;
3. any jurisdiction connected with any ship or aircraft that is vested in any other court in Nigeria immediately before the commencement of this Act;
4. any action or application relating to any cause or matter by any ship owner or aircraft operator or any other person under the Merchant Shipping Act or any other enactment relating to a ship or an aircraft for the limitation of the amount of his liability in connection with the shipping or operation of aircraft or other property;
5. any claim for liability incurred for oil pollution damage;
6. any matter arising from shipping and navigation on any inland waters declared as national waterways;
7. any matter arising within a Federal port or national airport and its precincts, including claims for loss or damage to goods occurring between the offloading of goods across space from a ship or an aircraft and their delivery at the consignee's premises, or during storage or transportation before delivery to the consignee;
8. any banking or letter of credit transaction involving the importation or exportation of goods to and from Nigeria in a ship or an aircraft, whether the importation is carried out or not and notwithstanding that the transaction is between a bank and its customer;
9. any cause or matter arising from the constitution and powers of all ports authorities, airport authority and the National Maritime Authority;
10. any criminal cause and matter arising out of or concerned with any of the matters in respect of which jurisdiction is conferred (in items 1-9 above).

The admiralty jurisdiction of the court in respect of carriage and delivery of goods extends from the time the goods are placed on board a ship for the purpose of shipping, to the time the goods are delivered to the consignee or whoever is to receive them; it does not matter whether the goods were transported on land during the process or not.[viii]

Any agreement or purported agreement, monetary or otherwise connected with or relating to carriage of goods by sea, whether the contract of carriage is executed or not, shall be within the admiralty jurisdiction of the court.[ix]

Merchant Shipping Act

The Merchant Shipping Act 2007 generally regulates merchant shipping issues and other labour related matters.[x] The Act established an Agency for Maritime Safety Administration, responsible for maritime safety, administration and security.[xi]

All ships operating commercially in or from the waters of Nigeria are required to obtain a certificate of licence under the Act.[xii] The Minister[xiii] may by notice exempt generally or specifically from registration under this Act, a licensed Nigeria ship or a class of Nigerian ship when operating outside the waters of Nigeria.[xiv]

The Merchant Shipping Act is the principal legislation governing collision,[xv] including liabilities in collision cases in Nigeria.[xvi] Section 340 of the Act provides for rules as to division of loss as follows:

‘(1) Where, by the fault of two or more ships, damage or loss is caused to one or more of them, or to their cargo or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was at fault-
(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;
(b) nothing in this section shall operate so as to render any ship liable for any loss or damage to which her fault has not contributed; and
(c) nothing in this section shall affect the liability of any person under a contract of carriage, or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.
​​​​​​​(2) This section shall apply to Nigerian Government ships as it applies in the case of other ships.’

The Merchant Shipping Act further provides for limitation of actions in Nigeria for maritime claims or lien against a ship or its owners in respect of any damage or loss. Proceedings in respect of such damage or loss are to be commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered.[xvii]

Nigerian Maritime Administration and Safety Agency Act

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

The NIMASA Act applies to all ships, whether small ships or crafts that are registered in Nigeria, and to all other ships flying a foreign flag in the Exclusive Economic Zone, territorial and inland seas, inland waterways and the ports of the country.[xix] The NIMASA is given the right under the Act to make regulations with approval of the Minister with regards to dumping of ship or generated waste into the Nigerian waters.[xx]

Section 22 of the Act provides for the functions and duties of the NIMASA. These functions and duties include: administering the registration and licensing of ships; regulating and administering the certification of seafarers; pursuing the development of shipping and regulatory matters relating to merchant shipping and seafarers; establishing maritime training and safety standards; regulating the safety of shipping as regards to the construction of ships and navigation; providing directions and ensuring compliance with vessel security measures; providing search and rescue services; carrying out air and coastal surveillance; controlling and preventing marine pollution; providing the direction on qualification, certification, employment and welfare of maritime labour; establishing the procedure for the implementation of conventions – the International Maritime Organisation, the International Maritime Labour Organisation and other international conventions to which Nigeria is a party on maritime safety and security, maritime labour, commercial shipping and for the implementation of codes, resolutions and circulars arising therefrom among others.

Coastal and Inland Shipping (‘Cabotage’) Act

The Cabotage Act 2003 regulates the activities of maritime transportation. The Act is established to: restrict the use of foreign vessels in domestic coastal trade; promote the development of indigenous tonnage; establish a cabotage vessel financing fund; and for related matters.

The main purpose of the Act is to promote Nigerian ship ownership and delimit the honour and use of foreign vessels in the Nigerian marine trade while boosting the nation’s economy through the ownership of ships and in the engagement of  the business of carriage of goods and services on the Nigeria inland waterways domain.[xxi] The Act empowers Nigerians involved in maritime activities to invest largely in domestic coastal trade, but it also allows Nigerians to manage vessels in collaboration with foreign partners.[xxii]

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

Enforcement of maritime laws and regulations

Jurisdiction of the Federal High Court

The Constitution confers exclusive civil jurisdiction in admiralty causes or matters on the Federal High Court, as noted. And by the provision of Section 19 of the Admiralty Jurisdiction Act, the Federal High Court shall exercise exclusive jurisdiction in admiralty causes or matters, whether civil or criminal. This provision of the Act is also confirmed by the Supreme Court in the case of TSKJ (Nig) Ltd v Otochem (Nig.) Ltd.[xxiii]

Recently, the Supreme Court was called upon in the case of L.L.S.P.I.A. Ltd v M/T Tuma[xxiv] to determine whether the Federal High Court has jurisdiction to hear matters on a claim for insurance premiums in respect of the ship or goods or cargoes carried by the ship. In that case the Supreme Court held as follows:

‘By virtue of section 2(1) and (3)(q) of the Admiralty Jurisdiction Act, 1991, a reference in the Act to a maritime claim is a reference to a propriety maritime claim or a general maritime claim. A reference in the Act to a general maritime claim is a reference to a claim for an insurance premium, or for a mutual insurance call, in relation to a ship or goods or cargoes carried by a ship. By the provisions, a claim for an insurance premium in relation to a ship or goods or cargoes carried by a ship relates to or falls under the category of general maritime claims. In the instant case, by virtue of section 2(3)(q) of the Admiralty Jurisdiction Act 1991, the appellant’s claim which was for an insurance premium fell within the ambit of a general maritime claim for which jurisdiction is conferred only on the Federal High Court. It did not fall within the scope of simple insurance contract as contended by the appellant. The claim was for an insurance premium arising from an insurance cover made in respect of the respondents’ vessel.’

Jurisdiction on maritime labour claims

The National Industrial Court (NIC) was established as a superior court of record after an amendment to the Constitution of the Federal Republic of Nigeria (Third Alteration) Act. Section 254C (1) of the Constitution confers exclusive jurisdiction on the NIC to the exclusion of any other court in civil causes and matters:

‘a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; [...]
​​​​​​​k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto [...]’

The aforementioned development has raised concerns regarding the right court (between the Federal High Court and the NIC) vested with jurisdiction to hear crew wage claims, and has led to conflicting decisions of the Federal High Court in the earlier cases of Moe O O & 26 Ors v  MV Phuc Hai Sun[xxv] and Assurance Foreingen Skuld v MT Cloder Pride.[xxvi] The court upheld the exclusive jurisdiction of the Federal High Court in the former case, while the exclusive jurisdiction of the NIC was upheld in the latter.

The Court of Appeal has now settled this jurisdictional issue in the case of The Vessel MT Sam Purpose (Ex Mt Tapti) & Anor V Bains & Ors.[xxvii] While holding that the NIC has the exclusive jurisdiction to determine claims for crew wages, the Court of Appeal held as follows:

‘Section 254C (1) (a) and (k) of the 1999 Constitution (as amended) gave the National Industrial Court exclusive jurisdiction over employee wages and other labour related matters. It is also clear from the said provisions that an action founded on claims for unpaid crew wages falls outside the Federal High Court’s jurisdictional competence. Section 2(3) (r) of the Admiralty Jurisdiction Act gives the Federal High Court jurisdiction over “a claim by a master, or a member of the crew, of a ship for (i) wages, or (ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including by operation of a foreign country.” In this regard, this Section which differed from Section 254C (1) of the Constitution, which conferred the same jurisdiction on the National Industrial Court is void to the extent of its inconsistency. See OLORUNTOBA-OJU VS. DOPAMU & ORS (2008) LPELR 2595. Even though Section 251 of the Constitution provides for the admiralty jurisdiction of the Federal High Court, the express use of the word “notwithstanding” in Section 254C (1) clearly made the said Section 251 subject to the latter. It follows therefore that as used in Section 254C (1) of the 1999 Constitution, no provision of the Constitution itself or any statute or legislation shall be allowed to prevail over the provisions and neither shall it be capable of undermining the said Section 254C (1). The provisions of Section 254C (a) and (k) of the 1999 Constitution (as amended) in my humble view is undoubtedly to oust the jurisdiction of any other Court to adjudicate on matters listed therein.’

The implication of the aforementioned decision by the Court of Appeal is that crew claims for wages or other entitlements arising from their employment will no longer enjoy the benefits and status of a time-honoured maritime claim enforceable by an action in rem. An action in rem allows a claimant not only to institute an action against a thing such as a vessel, but also has the right to arrest such vessel (or a sister vessel) subject to provision of adequate security as pre-judgment security for the claim.[xxviii]

Pending the time the issue is raised and settled at the Supreme Court, the decision of the Court of Appeal remains in force, which would appear to leave the flood gates open for jurisdictional challenges on the matter. It is well-settled law that the issue of jurisdiction can be raised at any time, even for the first time on appeal and without leave.[xxix]

Legal regime on international maritime conventions

International Maritime Organization

At the international level, the regulation of shipping and maritime activity is done through a specialised agency of the United Nations called the International Maritime Organization (IMO).[xxx] Its main role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented.[xxxi]

The IMO was established by means of a convention that was adopted under the auspices of the United Nations in 1948 and entered into force on 17 March 1958.[xxxii] The IMO has 175 Member States and three Associate Members.[xxxiii] Nigeria became a member on 15 March 1962.

Throughout its existence, the IMO has concentrated on technical issues relating to safety at sea and the prevention of pollution from ships.[xxxiv] Its most important treaties cover/apply to  more than 98 per cent of world shipping and it has been at the forefront for drafting conventions, treaties, protocols, codes and agreements securing the safety of international shipping and the marine environment through its specialised departments known as the Marine Safety Committee and the Marine Environment Protection Committee, respectively.[xxxv]

The adoption of the international rules by the IMO is to be implemented within the jurisdictional framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as well as in accordance with the two main IMO safety and anti-pollution treaties, respectively: the International Convention for the Safety of Life at Sea (SOLAS 1974) as amended; and International Convention for the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997.

The UN Convention on the Law of the Sea 1982

Nigeria was an active participant in the marathon third UN Conference on the Law of the Sea (UNCLOS III), having joined in the clamour for such a conference, as a result of the desire to be directly involved in the moulding of a ‘new’ law of the sea.[xxxvi] For Nigeria, like most other newly independent developing states, this was premised on the belief that the ‘old’ law of the sea was simply a product of an ‘old boy network’ of a few developed maritime states.[xxxvii] After about nine years of intense negotiations, involving a highly complex negotiating process, the United Nations Law of the Sea Convention (LOSC) – ‘the constitution of the seas’ – was adopted on 30 April 1982 at Montego Bay, Jamaica.[xxxviii] Nigeria was one of the states that signed the Convention, which came into force on 16 November 1994, and it became a party to the Convention on 14 August 1986.[xxxix]

The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and development of contemporary international law governing the sea in time of peace.[xl] A careful list of the main substantive provisions of the Convention, focusing on those introduced changes or new concepts in the traditional law of the sea would seem to include the following aspects:[xli]

• the maximum width of the territorial sea is fixed at 12 miles and that of the contiguous zone at 24 miles;
• a ‘transit passage’ regime for straits used for international navigation is established;
• states consisting of archipelagos, provided certain conditions are satisfied, can be considered as ‘archipelagic States’, the outermost islands being connected by ‘archipelagic baselines’ so that the waters inside these lines are archipelagic waters;
• a 200-mile exclusive economic zone, including the seabed and the water column, may be established by coastal states in which such states exercise sovereign rights and jurisdiction on all resource-related activities;
• other states enjoy in the Exclusive Economic Zone high seas freedoms of navigation, over flight, laying of cables and pipelines and other internationally lawful uses of the sea connected with these freedoms;
• a rule of mutual ‘due regard’ applies to ensure compatibility between the exercise of the rights of the coastal states and of those of other states in the Exclusive Economic Zone;
• the concept of the continental shelf has been confirmed, though with newly defined external limits;
• the International Seabed Authority is the ‘machinery’ entrusted with the supervision and regulation of exploration and exploitation of the resources;
• a series of very detailed provisions dealing with the protection of the marine environment setting out general principles and rules about competence for law-making and enforcement as well as on safeguards;
• detailed provisions concerning marine scientific research, based on the principle of consent of the coastal state, consent that should be the norm for pure research and discretionary for resource-orientated research; and
• the ocean bottom beyond national jurisdiction is proclaimed to be the ‘Common Heritage of the Mankind’.

Under both the Geneva Convention on Territorial Sea, 1958 and the UN Convention on the Law of the Sea, 1982 there are the following seven maritime areas over which states can exercise their jurisdiction:[xlii] Base Line;[xliii] Inland Waters;[xliv] Territorial Sea;[xlv] Contiguous Zone;[xlvi] Exclusive Economic Zone;[xlvii] High Seas;[xlviii] and Continental Shelf.[xlix]

After the entry into force of the UN Convention on the Law of the Sea on 16 November 1994, strong efforts were made for the establishment of an International Tribunal for the Law of the Sea (ITLOS). The UNCLOS created ITLOS as part of its compulsory third-party dispute settlement system.[l] The ITLOS, headquartered in Hamburg, Germany, is fully operational. It has already adjudicated cases and reached judgments in them.[li] The Tribunal is open to all state parties to the 1982 UN Convention on the Law of the Sea.[lii]

Conclusion

Maritime law is that body of law governing marine commerce and navigation, the transportation at sea of persons and properties and marine affairs generally such as rules governing workers’ compensation claims, actions in contract and tort arising out of commerce on or over water.[liii]  We have briefly discussed some of the maritime laws and mechanisms that guide and regulate maritime practice in Nigeria.

The maritime industry is, however, international by nature, as about 71 per cent of the Earth’s surface is covered by water and the oceans hold about 96.5 per cent of all Earth’s water.[liv] It is therefore crucial, beyond the municipal maritime law of each state, to have international laws of the sea.

International laws of the sea are laws of maritime space that peacefully settle global disputes on maritime boundaries between or among states and define various jurisdictions of maritime zones as well as the rights and obligations of coastal states in these zones, especially with regard to the conservation of the marine environment and biodivers