TIWALADE ADEROJU
OLYMPUS SOLICITORS AND ADVOCATES,
LAGOS, NIGERIA.
Janauary 2023
LEGAL FRAMEWORK FOR MARITIME LAW IN
NIGERIA
A. 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, power generation, and an essential source of the blue economy. 1 As a coastal state located strategically
on the West Coast of Africa in the Gulf of Guinea; an effective maritime legal regime is of vital importance for the regulation, and protection of sea activities in Nigeria. The legal framework for maritime protection in Nigeria includes the Constitution; 2 statutes and government regulations; case law, which provides binding judicial precedents; and international maritime conventions.
B. LEGAL REGIME ON MARITIME LEGISLATION
1 Arif Ahmed (2017). “International Law of the Sea: An Overlook and Case Study”. Beijing Law Review, 8,
21-40. https://doi.org/10.4236/blr.2017.81003
2 1999 Constitution of the Federal Republic of Nigeria, as amended.
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 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS
AMENDED)
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, but to also those located in the territorial sea, including the Exclusive Economic Zone of Nigeria. 3 The Constitution also charges the State to improve and protect the air, land, water, forest and wildlife of Nigeria. 4 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. 5
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; and 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. 6
ADMIRALTY JURISDICTION ACT
3 Ibid., S. 44 (3).
4 Ibid., See S. 20.
5 Dr. Samuel C. Dike and Prince Godwin Gininwa (2019). “An Appraisal of the Nigerian Legislation and Institutions Governing Maritime Environment.” SSRN Electronic Journal. 10.2139/ssrn.3514479
6 The Constitution, S. 251 (1) (g).
Further to the above provision 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: 7
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 which is vested in any othe rcourt 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 s 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 exportationof 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;
in respect of which jurisdiction is conferred by paragraphs (a) to (i) of this subsection. 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. 8 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. 9
MERCHANT SHIPPING ACT, 2007
The Merchant Shipping Act generally regulates merchant shipping issues and other labour related matters. 10 The Act established an Agency for Maritime Safety Administration, responsible for Maritime Safety, Administration and Security. 11 All ships operating commercially in or from the waters of Nigeria are required to obtain a certificate of licence under the Act. 12 The Minister 13 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. 14 Theerchant Shipping Act is the principal legislation governing collision, 15 including
8 Ibid., S. 1 (2).
9 Ibid., S. 1 (3).
10 Dr. Samuel C. Dike and Prince Godwin Gininwa (2019). “An Appraisal of the Nigerian Legislation andInstitutions Governing Maritime Environment.” SSRN Electronic Journal. 10.2139/ssrn.3514479
10 The Constitution, S. 251 (1) (g).
11 Merchant Shipping Act, 2007, S. 2.
12 Ibid., S. 5 (1).
13 "Minister" means the Minister charged with responsibility for matters relating to Merchant Shipping; and "Ministry" has a corresponding meaning
14 The Merchant Shipping Act, 2007, S. 5 (2).
15 “Collision” means any accident involving two or more vessels which causes loss or damage even if no actual contact has taken place.
liabilities in collision cases in Nigeria. 16 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 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. 17
NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY (“NIMASA”) ACT,
2007
16 The Merchant Shipping Act, 2007, S. 338 to 344.
17 Ibid., S. 343.
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 Nigerian Maritime Administration and Safety Agency; and related matters. Its objective is to develop indigenous commercial shipping in international and shipping trade. 18
The 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. 19 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. 20
Section 22 of the Act provides for the functions and duties of 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 Vregulatory 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
procedure for the implementation of conventions-the International Maritime Organisation, the International Maritime Labour Organisation; and other international conventions to which the Federal Republic of Nigeria is a party on Maritime Safety and
Security, Maritime Labour, Commercial Shipping and for the implementation codes, resolutions and circulars arising therefrom among others.
COASTAL AND INLAND SHIPPING (“CABOTAGE”) ACT, 2003
18 Dr. Samuel C. Dike and Prince Godwin Gininwa (2019). “An Appraisal of the Nigerian Legislation and Institutions Governing Maritime Environment.” SSRN Electronic Journal. 10.2139/ssrn.3514479.
19 Ibid.
20 Ibid.
The Cabotage Act regulates the activities of maritime transportation. The Act is established to restrict the use of foreign vessels in domestic coastal trade; to promote the development of indigenous tonnage, to 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 Nigeria 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. 21 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. 22
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; the
Sea Fisheries Act 2004; among others.
C. 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 earlier. 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. 23 Recently, the Supreme Court was called upon in the case of L.L.S.P.I.A. LTD. V. M/T
TMA, 24 to determine whether the Federal High Court has jurisdiction to hear matters
21 Ibid.
22 Ibid.
23 (2018) 11 NWLR (Pt. 1630) 330 S.C.
on the claim for insurance premiums in respect to the ship or goods or cargoes carried by the ship, 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 thAdmiralty 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, following 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
24 (2021) 10 NWLR (Part 1784) 347 S.C.
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 above development has raised concerns regarding the right court (between the Federal High Court and the NIC) vested with jurisdiction to hear crew’ wages, and has led to the conflicting decisions of the Federal High Court in the earlier cases of MOE O.
O. & 26 ORS. V. MV PHUC HAI SUN, 25 and DASSURANCE FOREINGEN SKUL V.
The Court of AppeMT CLOVER PRIDE, 26 where 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. al has now settled this jurisdictional issue in the case of THE
VESSEL MT SAM PURPOSE (EX MT. TAPTI) & ANOR V. BAINS & ORS. 27 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
25 Unreported Suit No. FHC/CS/L/592/11 decided on 20 June 2014 (Tsoho J).
26 Unreported Suit No. FHC/L/CS/1807/17 decided on 28 March 2018 (MB Idris J).
27 (2021) LPELR-56460(
