INTRODUCTION:

Admiralty law is a distinct body of law that governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities that operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, marine salvaging, shipping, sailors, and the transportation of passengers and goods by sea.

Admiralty law also covers many commercial activities, although land based or occurring mainly on land, that are maritime in character.

Admiralty law is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations. Each legal jurisdiction usually has its own enacted legislation governing admiralty matters.

Admiralty law is characterized by a significant amount of international law developed in recent decades, including numerous multilateral treaties.

The writer of this article is going to be exploring the practice of admiralty law in Nigeria.

 ADMIRALTY LAW PRACTICE IN NIGERIA

Admiralty law practice in Nigeria is seen as being very lucrative. The risk and resource borne in and by factors in maritime trade are of such volume that either due diligence or litigation on them necessarily has to pay the lawyer. Whether it has been worth the while of many a practitioner in recent time, is a question worthy of consideration[1].

Admiralty practice is not being fully exploited in Nigeria not as much as could possibly be derived from it is being enjoyed. Admiralty practice has not made much progress since the seventies from the traditional vessel arrest-release gymnastics and occasional ancillary litigation; but that is not all to Admiralty law[2].

It must be emphasized that we have the right environment for lucrative practice of Admiralty law. We have an expansive coastline; more important is the sheer volume of vessels coming into these waters by virtue of our import-appetite. So it is not that the opportunity for the practice to thrive is not there[3].

It is very important that we have to start from the very fundamentals. Specialization is therefore key to mastery of the field. Few lawyers undertake a deliberate study of Admiralty law. Such study widens the understanding of concepts which ordinarily may not be fully appreciated for their technicalities. It also gives more meaning to international conventions and local legislation which greater significance may be lost in the general context of legal issues. Time was when the minimum amount chargeable to effect the release of an arrested vessel was in the region of ten thousand pounds. These days, except for few exceptional cases, release of such vessels comes very cheap. This came largely from the obsequious industry of a few legal practitioners, which unwittingly, has lowered the otherwise perk rates of vessel-release service[4].

In addition to this has been the productive partnership of ship owners and charterers. Upon arrest of their vessels, they are now more disposed to quick resolution through possible settlement of the claims, which often, may come to an amount far less than whatever the costs of litigation.  The results are of such options are laudable no doubt; indeed they fail to believe that the value of ADR as a method of quick dispensation of justice[5].

 Cabotage Enforcement

The Cabotage law came into force in Nigeria on May 1, 2004. Ever since then, numerous challenges have prevented the effective implementation and enforcement of the law. The conditions prescribed for obtaining a waiver by foreign firms are less challenging, that it is likely that more foreign ships will be granted waivers to engage in Cabotage in Nigeria[6].

Similarly, the exclusion of Indigenous Shipowners Association of Nigeria (ISAN) from ministerial consultation process is a big challenge, since the operation of Cabotage Law in Nigeria. Same goes for the high cost of enforcement and monitoring[7].

 Piracy

Piracy is another big challenge. There has been a report of armed gang terrorizing vessels and maiming crew members on the nation’s territorial waters[8].

 Nigerian Ports

Nigerian ports are termed to be below international standards and commercially unfriendly, charging high tariffs and delivering poor service. The challenges are myriad and include inadequate supply of crafts and plants, a cumbersome documentation system, dilapidated port infrastructure, low labour productivity and volatile dock labour, corruption, vandalism, criminal damage, multiplicity of government and security agencies.

 Limitation of liability rules.

The liability system in admiralty matters under the Merchant Shipping Act is a serious clog to the smooth flow of litigation under the admiralty jurisdiction. Often the value to which a claimant under the Hague rules is entitled to is hardly worth the paper on which the contract is written. This removes any motivation the claimant ordinarily would have to litigating the matter. The backlash effect of this is felt by the lawyer, who is denied a brief. It renders the value of the lawyer’s skill low in the eyes of the client. More active effort therefore ought to be expended in seeing to the domestication of the Hague rules, which is more friendly to the claimant. But the extant rules on liability definitely cannot justify dwindling admiralty practice.

 Current realities:

What the shipping sector sustains and generates is nothing near what it potentially can. Efficiency is low, reaction/response time, high. Government involvement is deep, its procedures long-winding and its pace, slow. Regulatory legislation are behind the times; no long-term goals are being pursued, policies are thought up and pursued without consideration of their multiplier implications, are then jettisoned even before they take off; the economy is slower for it because long-term planning is difficult[9].

Way forward:

  1. A well-segmented, articulate, implementable and target-driven National Shipping Policy has to be formulated, but more importantly, consolidated and strenuously implemented.
  2. Government should withdraw from every other thing and be involved only in regulation.
  3. Private sector stakeholders, based on their practical experience, should come together and devise a policy that will define the benchmarks to be achieved within the next decade, and how that is to be done.
  4. A Policy Implementation Audit Body/Committee/Panel has to be in place, dedicated to audit of policy implementation. That said, it is now exactly two (2) years since the Presidential Committee on the Review of the Outcome of Admiralty Sector submitted its Report. Nigerians are still awaiting the outcome.

 Policy:

In this respect, policy throws up a potentially thriving area for admiralty lawyers to engage in. This of course is within the context of current realities: the sector is in need of properly articulated and well-packaged policy blueprints, which are open to be developed by competent practitioners. The new democratic spirit conduces to this option, as both the legislature and executive are well disposed to such new and functional thinking[10].

Alternative Dispute Resolution (ADR):

Experience has shown that ADR is of significant value in the quick dispensation of justice. It would be in the interest of practitioners and parties if ADR processes are more readily resorted to in Admiralty claims. Claimants are constrained by the extant limitation of liability rules, and because litigation can be so time consuming, and because often the claimant is often in a less than advantageous position in the contested transaction, litigation is usually a choice for him. For the ship owner, charterer insurer or other party in the advantage, the story is no different. Speed for them too, is of the essence, and they would not like to prejudice existing business relationships by less than fair practices. ADR therefore presents a perfect opportunity of compromise between the parties, of quick dispensation of justice, and of possible greater turnover for lawyers, who will have more briefs to deal with[11].

Looking through the usual suspects within the admiralty industry, it is noteworthy that there exist a number of flashpoints which are perfect platforms for ADR. These include the issues from the SASBF and percentage levy between the NIMASA and shipping companies, issues arising from privatization involving NIGERDOCK, NPA and the federal government, issues arising from the relationship between NPA and port users, and the enduring question of cargo claims between cargo interests and shipping interests[12].

The essence of ADR in all these cases is underscored by the nature of relationships between the feuding parties: they are continuing relationships in which the parties need one another; win-win is needed, and this cannot be provided by litigation[13].

 ADMIRALITY JURIDICTION IN NIGERIA.

Section 251(1) (g) of the 1999 Constitution of the Federal Republic of Nigeria confers exclusive jurisdiction on the Federal High Court to hear and determine admiralty disputes in Nigeria.

The jurisdiction conferred on the Federal High Court includes the civil and criminal admiralty matters including shipping and navigation in the River Niger, Benue and their effluents, and also the international inland waterways and carriage by sea. In other words any dispute arising from these transactions can only be entertained by the Federal High Court of Nigeria. However, the criminal jurisdiction on admiralty matter is not exclusive to the Federal High Court but concurrent with the State High Court by virtue of Section 251(3) of the 1999 Constitution[14].

There is only one Federal High Court in Nigeria with its jurisdiction spreading throughout the country. The Federal High Court has various judicial divisions for administrative convenience. On this note admiralty proceedings may be filed in any judicial division of the Court in which the ship or other property is located[15].

The admiralty civil jurisdiction of the Federal High Court covers all ships, whether or not their owners reside or are domiciled in Nigeria and all admiralty claims notwithstanding where they arose from. However the admiralty jurisdiction of the Federal High Court does not cover ships demised or sub-demised to the Federal or State Government or ships being used by the Navy. In spite of this, where a party files a civil action in rem against a government ship or property, the suit can be converted into and can proceed as an action in personam, if the court is satisfied that it was so commenced on the reasonable belief that the ship or the property was not a government ship or property[16].

In addition to the provision of the Constitution of the Federal Republic of Nigeria, section 7 of the Federal High Court Act and section 1(1) (a) of the Admiralty Jurisdiction Act 1991 confer on the Federal High Court the jurisdiction to hear and determine any question relating to a proprietary interest in a ship or any admiralty claim specified in section 2 of the Admiralty Jurisdiction Act[17].

The major implication of these provisions is that, where a case that falls within the exclusive civil admiralty jurisdiction of the Federal High Court is filed in a court other than the Federal High Court, the suit will be incompetent and the court will lack jurisdiction to hear and determine the matter. Consequently, any order made by such a court will be null and void for being made without jurisdiction. See the case of Inakoju v Adeleke (2007) 4 NWLR (PT 1205).[18]


 ENFORCEMENT OF ADMIRALTY CLAIMS:

Having successfully formulated the claim, pleaded material facts and conducted trial at the appropriate venue by leading sufficient evidence in proof of its claim the Plaintiff will usually have judgement entered in its favour.

In a recent work titled “Injunction and Enforcements of Orders” by Chief Afe Babalola OFR, SAN, LL.D, the learned author at page 260 opined as follows[19]:

“To any litigant, the joy of any victory recorded in the judicial process becomes meaningful only and only when orders granted in his favour are enforced successfully. For instance, the Judgment Creditor in an action for damages is happy only when he receives hard cash. It is therefore necessary that the legal practitioner is comfortably familiar with the law relating to enforcement of orders so as to avoid the pitfalls which may turn the euphoric joy of obtaining an order or judgement into ashes. In some cases, the enforcement of any order or judgment may be frustrated through incompetence or wrong procedure which may be frustrated through incompetence or wrong procedure which may deny the party in whose favour the order or judgment has been given the fruit of the order or judgment. It is also true that faulty enforcement of an order or judgment may saddle the victorious party with liability for wrongful execution”

It is trite law that the Judgment of a Court, once delivered becomes immediately enforceable until set aside. See the cases of Hart v Hart [1990] 1 N.W.L.R. [PART 126] P. 276 AT 279 and Babatunde v Olatunji [2000] 2 N.W.L.R. [PART 646] 557. There are set down modes of enforcing judgments of the Courts.

The law regulating enforcement of judgments and awards including those related to admiralty claims can be found in the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria. This legislation deals with execution against moveable property, committal to prison, seizure of goods and securities and custody thereof, sale of goods seized, execution against immovable property, sequestration and liens.

In enforcing judgments or awards under admiralty claims the successful party could elect to do any of the following[20]:

  1. Writ of fieri facias [fifa]
  2. Garnishee proceedings
  3. Charging orders
  4. Writ of special delivery on goods or their value
  5. Order of committal to ensure the doing of or restrain the doing of or continuation of an act
  6. Bankruptcy proceedings
  7. Winding-up proceedings
  8. Writ of sequestration

CONCLUSION:

The framework of admiralty law practice, the jurisdiction of admiralty law and the enforcement of any judgment or award made has been discussed by the writer of this article. This article is by no means exhaustive but only attempts to provide an overview of useful hints that will guide the admiralty lawyers.

Although the Rules of Court are the vehicle by which one wades through issues of procedure, the interpretation of such rules and indeed the substantive law by the Courts provide the ultimate guide to lawyers in deciding how to go about Client’s claims. Therefore within my limitations I have been able to provide a useful layout and guide of how admiralty law practice works in Nigeria and suggested way forward towards achieving a more effective and policy oriented Admiralty practice in Nigeria.

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BIBLIOGRAPHY.

CASES

Inakoju v Adeleke (2007) 4 NWLR (PT 1205).

Hart v Hart [1990] 1 N.W.L.R. [PART 126] P. 276 AT 279

Babatunde v Olatunji [2000] 2 N.W.L.R. [PART 646] 557.

ACTS AND LEGISLATIONS

Sheriffs and Civil Process Act, Laws of the Federation of Nigeria 2004.

1999 Constitution of the Federal Republic of Nigeria.

ONLINE MATERIALS:

Trends in Admiralty Practice in Nigeria available at                                                                            <http://www.dailytrust.com.ng/daily/law/35590-trends-in-admiralty-practice-in-nigeria>accessed on 17th February 2017.

Admiralty Jurisdiction in Nigeria available at < https://www.hg.org/article.asp?id=21404 > accessed on 20th February 2017.

Admiralty Jurisdiction in Nigeria available at <http://file:///C:/Users/fransee/Downloads/Maritime_and_Aviation_law_Newsletter_August09.pdf > accessed on 21st February 2017.

 

Nigeria: Maritime Claims – Practice, Procedure and Enforcement available at <http://www.mondaq.com/Nigeria/x/293392/Marine+Shipping/Maritime+ClaimsPractices+Procedures+And+Enforcements > accessed on 22nd February 2017.

[1]  Trends in Admiralty Practice in Nigeria available at < http://www.dailytrust.com.ng/daily/law/35590-trends-in-admiralty-practice-in-nigeria > accessed on  17th February 2017.

[2] Ibid

[3] Ibid

[4] Ibid

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid

[13] Ibid

[14] Admiralty Jurisdiction in Nigeria available at < https://www.hg.org/article.asp?id=21404 > accessed on 20th February 2017

[15] Admiralty Jurisdiction in Nigeria available at <http://file:///C:/Users/fransee/Downloads/Maritime_and_Aviation_law_Newsletter_August09.pdf > accessed on 21st February 2017

[16] Ibid (n14)

[17] Ibid (n15)

[18] Ibid (n15)

[19]  Nigeria: Maritime Claims – Practice, Procedure and Enforcement available at <http://www.mondaq.com/Nigeria/x/293392/Marine+Shipping/Maritime+ClaimsPractices+Procedures+And+Enforcements > accessed on 22nd February 2017

[20] Ibid