POSITION OF MARITIME LAWS OF NIGERIA IN STIMULATING THE LIBERATION SCHEME

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POSITION OF MARITIME LAWS OF NIGERIA IN STIMULATING THE LIBERATION SCHEME

ABSTRACT

Maritime cabotage laws in Nigeria evolved to add efficiency to the country’s maritime industry, especially in the area of indigenous fleet expansion, ship building and human capacity development. The aim was to curtail foreign dominance and unequal competition by non-Nigerian operators. Since the enactment of the Cabotage Act, attempt at successful and beneficial implementation could not be achieved due to regulatory inadequacies. What is obtainable now includes foreign dominance, unfair competition, policy failure, institutional ineffectiveness, absent of stable local capacity, regulatory problems, fiscal deficiencies, lack of political will by the government. In view of these inadequacies, appropriate remedial regulatory measures need be considered. These include regulatory overhaul or ample review of all extant maritime laws which are no more relevant in a cabotage regime. There is need for institutional reforms which will engender adequate and effective monitoring and enforcement. Fiscal and financial legal framework needs to be put in place to strengthen this inadequate and weak policy. This article submits that, cabotage laws which are supposed to be the framework of transformation from foreign to indigenous dominance of coastal shipping, have fallen short of the intended objectives. It therefore requires proper and adequate review to cure the obvious defects.

CHAPTER ONE

INTRODUCTION

1.0.0: INTRODUCTION

1.1.0: BACKGROUND TO THE STUDY

1.2.0: STATEMENT OF THE PROBLEM

1.3.0: AIM AND OBJECTIVES OF RESEARCH

1.4.0 SCOPE AND LIMITATION OF THE STUDY

CHAPTER 2 LITERATURE REVIEW

2.1.0: HISTORICAL BACKGROUND OF MARITIME LAWS IN NIGERIA

2.2.0: MEANING / DEFINITION

2.3.0: NATURE OF MARITIME INDUSTRY IN NIGERIA

2.4.0 OVERVIEW OF MARITIME LAWS AND FRAMEWORKS IN NIGERIA

2.5 LEGAL ISSUES THAT SUSTAIN SOCIO-ECONOMIC PROBLEMS MILITATING FROM IMPLEMENTATION OF MARITIME LAWS

5.0: CONCLUSION

CHAPTER 3

0.0: INTRODUCTION

3.1.0: FORMS OF MARITIME LAWS

3.2.0: ANTI-PIRACY LAWS IN NIGERIA

CHAPTER 4

4.0.0: INTRODUCTION

4.1.0: ROLES OF LAWS AND JUDICIARY IN MARITIME ISSUES

4.2.0: PROBLEMS OF MARITIME INDUSTRY

4.3.0: SOLUTIONS TO THE PROBLEMS

CHAPTER 5

5.1 MAJOR CHALLENEGES OF MARITIME LAWS IN NIGERIA

5.2 PROSPECTS OF MARITIME LAWS IN STIMULATING THE LIBERATION SCHEME

CHAPTER 6

6.1.0: RECOMMENDATION

6.2.0: CONCLUSION

BIBILOGRAPHY

CHAPTER ONE

1.0 INTRODUCTION

The Admiralty Jurisdiction Act 1991, the Merchant Shipping Act 2007, the Nigerian Maritime Administration and Safety Agency Act 2007 (the NIMASA) Act, and the Coastal and Inland Shipping (Cabotage) Act No.5, 2003, are the applicable laws that govern maritime practices in Nigeria.

Maritime law in Nigeria simply comprises of a body of laws, legal rules, principles, and concepts that are concerned with the business of transportation of goods and passengers by water, use of marine resources, commerce, and navigation.

The Constitution of the Federal Republic of Nigeria 1999 (as amended) also vests the exclusive jurisdiction on the Federal High Court to determine admiralty matters whether civil or criminal in Nigeria. Section 251 (1) (g) of the Constitution provides as follows;

Section 1 of the Admiralty Jurisdiction Act provides for the extent of the jurisdiction of the Federal High Court. It provides that the jurisdiction of the Federal High Court includes the following;

Jurisdiction to hear and determine any question relating to the property interest in a ship or aircraft or any maritime claim;

Any other admiralty jurisdiction being exercised by any other court in Nigeria immediately before the commencement of this Act;

Any jurisdiction connected with ship or aircraft which is vested in any other court in Nigeria immediately before the commencement of this Act;

Any action or application relating to any cause or matter by any shipowner 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;

Any claim for liability incurred for oil pollution damage;

Any matter arising from shipping and navigation on any inland waters declared as national waterways;

Any matter arising within a Federal port or national airport and its precincts, including claims for loss or damage to goods occurring between the off-loading of goods across space from a ship or an aircraft and their delivery at the consignees’ premises, or during storage or transportation before delivery to the consignee;

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;

Any cause or matter arising from the constitution and powers of all ports authorities, airport authority, and the National Maritime Authority;

Any criminal cause or matter arising out of or concerned with any of the matters in respect of which jurisdiction is conferred.

The Merchant Shipping Act 2007 contains the body of laws for merchant shipping and other related matters in Nigeria. Under Section 2, it provided that the agency of government established and responsible for maritime safety, administration and security shall be the implementing agency.

The Act established provisions to ensure that all ships trading in Nigeria must obtain a Certificate of License. Section 5 of the Act provides that “no ship shall operate commercially in or from the waters of Nigeria unless the ship is;

Provided with a certificate of foreign registration or other documents similar or equivalent to the required by the Act.

Registered by the law of the country other than Nigeria as a ship of that country and is by the law of that country exempted from registration.

Exempted from registration.

A licensed Nigerian ship operating solely within the waters of Nigeria”.

The law also gives the power to the Minister to exempt generally or specifically by notice, a licensed Nigerian ship or a class of Nigerian ship from registration when operating outside the waters of Nigeria.

The Merchant Shipping Act is also the principal law that governs collisions in Nigeria. Section 338-344 of the Act makes provisions for the liability in collision cases. Under the rules as to the division of loss in collision cases, Section 340 provides that “where 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, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was at fault”.

The Act also provides for the limitation of actions for maritime claims in Nigeria. Section 343 provides that “no action shall be maintainable to enforce any claim or lien against a ship or its owners in respect of any damage or loss to another ship, its cargo, freight, or any property on board or damages for loss of life or personal injury suffered by any person on board, caused by the fault of the former ship, whether such ship is wholly or partly in fault unless the proceedings in respect of the damages are commenced within two years from the date where the damage or loss or injury was caused or the salvage services was rendered”.

The Nigerian Maritime Administration and Safety Agency Act 2007 (NIMASA) Act

The NIMASA Act is another law that governs maritime-related matters in Nigeria. It was established to promote maritime safety and security, protection in the maritime environment, shipping registration, and commercial shipping and maritime labour. The Act also established the Nigerian Maritime Administration and Safety Agency (NIMASA) in Section 3 of the Act, as the agency responsible for executing the provisions of the Act.

The Agency has the objective of promoting the development of indigenous commercial shipping in the international and coastal shipping trade. The provisions of the Act also apply to all ships registered in Nigeria and extend to ships, small ships, and crafts flying a foreign flag in the exclusive economic zone, territorial and inland waterways, and in the ports of the Federal Republic of Nigeria.

The functions of the Agency (NIMASA) are highlighted in Section 22 as follows;

To administer the registration and licensing of ships.

To pursue the development of shipping and regulatory matters relating to merchant shipping and seafarers.

To regulate, and administer the certification of seafarers.

To establish maritime training and safety standards.

To regulate the safety of shipping as regards the construction of hips and navigation.

To provide search and rescue services.

Provide directions and ensure compliance with vessel security measures.

Carry out air and coastal surveillance.

Control and prevent marine pollution and,

Provide the direction on qualification, certification, employment and welfare of maritime labour, etc.

The Coastal and Inland Shipping (Cabotage) Act No.5, 2003

The Cabotage Act was established to restrict the use of foreign vessels in the domestic coastal trade, to promote the development of indigenous tonnage, and also to establish a reserve for the commercial transportation of goods and services within Nigerian coastal inland waters to vessels flying the Nigerian flag and owned by persons of Nigerian citizenship. It was also established to ensure that indigenous shipping companies are protected from any form of incapacitation that would arise from the domination of carriage of cargo within the Nigerian waters by foreign vessels

Section 2 of the Cabotage Act defines cabotage as “(a) the carriage of goods and passengers by vessel and any other mode of transport from one place in Nigeria or above Nigeria waters to any other place in Nigeria or above Nigeria waters, either directly or via a place outside Nigeria and includes the carriage of goods in relation to the exploration, exploitation or transportation of mineral or non-living natural resources of Nigeria whether in or under Nigerian waters.

(b) the carriage of passengers by vessel from any place in Nigeria situated on a lake or river to the same place, or to any other place in Nigeria either directly or via a place outside Nigeria to the same place without any call at any port outside Nigeria or to any other place in Nigeria other than as an in-transit or emergency call either directly or via a place outside Nigeria, engaging by vessel, in any other marine transportation activity of a commercial nature in Nigerian waters and;

(d) the engaging, by vessel in any other marine transportation activity of a commercial nature in Nigeria waters and the carriage of any goods or substances whether or not of commercial value within Nigerian waters”.

The Cabotage Act also seeks to restrict vessels in domestic coastal trade for the purpose of reserving cabotage trade for Nigerian citizens only as provided in Section 3 of the Act, which states that a vessel other than a vessel wholly owned and manned by a Nigerian citizen, built and registered in Nigeria shall not engage in the domestic coastal carriage, or cargo and passengers within the coastal, territorial, inland waters, island and any point within the waters of the Exclusive Economic Zone of Nigeria. For a foreign-owned vessel to be allowed to participate in the cabotage trade, an application must be made to the Minister for a license, by a person resident in Nigeria but acting on behalf of a foreign-owned vessel. The license will be issued upon the satisfaction of some prescribed conditions by the applicant as provided by Section 15 of the Act.

In closing, Nigerian maritime laws comprise various laws and statutory rules governing maritime activities and trades in Nigeria. The maritime laws are not limited to a few ones summarized above. There are various domestic and international maritime laws applicable in Nigeria such as the United Nations Convention on the Law of the Sea, Hague Visby Rules among others. Additionally, many judicial precedents also carry significant impacts on maritime administration and operations in Nigeria.

1.2 STATEMENT OF THE PROBLEM

Given the global nature of the maritime industry, it is important that national laws and regulations don’t lag behind the international legal framework. Nigeria needs to consider its dualist approach to treaties. In the alternative, concerted efforts should be made towards domestication of already signed/ratified treaties. The proposed amendments of the MSA, in the above regard, is laudable. There should be improved implementation of the existing legal framework, especially in relation to maritime labour, safety and pollution. The Cabotage Act requires vigorous enforcement in order to achieve its aims of promoting local content in the maritime industry. No concrete reason exists on why the Cabotage Fund is yet to be disbursed. Furthermore there is need to provide clarity on the law regulating carriage of goods by sea. The present confusion of which between the Hague Rules or the Hamburg Rules is applicable, offers little confidence to stakeholders. In the same vein, the regulatory bodies should ensure adequate synergy among themselves. This will further improve efficiency and avoid detrimental overlap in functions. The Maritime industry landscape is constantly evolving. We are in the era of sustainability and rapid technological innovations as witnessed by the rise of autonomous ships and remote control of ships operations; environmental concerns over greenhouse gas emissions from shipping activities; and demands for regulation of shipping costs and fairer labour practices. New laws and regulations would have to be made. It is important that Nigeria’s policy makers are prepared to effect the necessary changes.

1.3.0: OBJECTIVES OF STUDY

The main objective of this essay is to critically analysis position of maritime laws in Nigeria. Furthermore, the essay tends to highlight circumstances surrounding challenges of maritime laws in Nigeria. It also aims to understand the relationship between position of maritime laws and stimulating the liberation scheme.

1.4.0: FOCUS OF STUDY

This essay shall focus on position of maritime laws in stimulating the liberation scheme and other instances surrounding it.

1.5.0: SCOPE OF STUDY

This essay shall not exceed the content of this title; it shall be within the purview prescribed by the topic. This essay has it main focus on maritime laws of Nigeria.

1.6.0: METHODOLOGY

Both the primary and secondary sources of law are the basis for this research work. Thus the Evidence Act, Law text books, Law report, Articles on law, Various Statute and Cases on the subject matter are the sources of information. This project shall also be analytical in nature.

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