In every civil action involving a maritime claim, the plaintiff approaches the court or arbitral panel with the confidence that the harvest of his victory will be enjoyed. This is the basis on which the arrest of ships is premised under maritime law. The arrest of a ship refers to the detention of a ship by an order of a court to secure a maritime claim. It does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument.[i] The implication of this is that in a bid to secure an acceptable guarantee of the satisfaction of the judgment in favor of the plaintiff, a ship can be arrested to obtain pre-judgment security of a maritime claim.
This piece aims at explaining the concept of the arrest of ships under Nigerian maritime law as well as the practice, rules, and procedure for effecting same.
ESSENCE OF ARRESTING SHIPS
In maritime proceedings, ships are arrested to prevent the removal of a particular vessel from jurisdiction, which may be used in satisfaction of a possible judgment in favor of the plaintiff, or to compel, in lieu, the provision of security commensurate in value to the amount claimed or sometimes the value of the particular vessel.[ii]
THE LEGAL FRAMEWORK FOR THE ARREST OF SHIPS IN NIGERIA
Maritime claims in Nigeria find their bearing in the fons et origo of the Federal Republic of Nigeria; that is, the Constitution of the Federal Republic of Nigeria 1999 (as amended), otherwise known as the grundnorm. Section 251 (1) (g) of the Constitution[iii] provides for the exclusive jurisdiction of the Federal High Court to entertain maritime claims. The scope of the jurisdiction of the Federal High Court is extensively defined under the Admiralty Jurisdiction Act.[iv]
In addition to the above laws, the Admiralty Jurisdiction Procedure Rules[v] provides for the procedural modalities for the arrest of ships under the Nigerian Maritime law. It is pertinent to state that these laws and procedural rules are applicable to foreign-flagged vessels and vessels flying the Nigerian flag. The Federal High Court will always be vested with jurisdiction to arrest these ships if these ships are within Jurisdiction, there is a reason to attach the ship, and an application has been made and granted.
It is also very vital to state that although Nigeria has signed and ratified the United Nations Convention on the Law of the Sea (UNCLOS), our primary legislation takes priority over the provisions of any international law governing the arrest of ships, and as such international laws can best serve as reference materials to guide the mind of the court and are not binding on the court.
Read also: COMPARATIVE ANALYSIS OF ALTERNATIVE DISPUTE RESOLUTION AND TRADITIONAL LITIGATION.
THE PROCEDURE FOR THE ARREST OF SHIPS
The Admiralty Jurisdiction Procedure Rules invoke jurisdiction on the court to entertain matters in rem. Matters in rem refers to matters against things, in this case, vessels or ships. By virtue of the provisions of Order 3 of the Rules[vi], an action in rem is commenced by a writ of summons accompanied by a statement of claim and a copy of every document to be relied upon during the trial. The plaintiff shall, within seven (7) days of filing the writ of summons, file written statements of his witnesses which shall be adopted on oath at the trial. The implication of this provision of the rules is that the witness need not be present in Nigeria at the time of filing the action. However, the rules are silent on the mode of filing processes by the defendant, and in such cases, it is safe to apply the provisions of the Federal High Court (Civil Procedure) Rules 2019 as the Federal High Court is the court seized with jurisdiction to entertain maritime claims.
A party to a proceeding commenced as an action in rem may be a motion exparte apply for a warrant of arrest in respect of the ship or other property against which the proceeding is commenced, provided that at the time of the application, the ship or such other property is within the Nigerian territorial waters or is expected to arrive there within three (3) days.[vii]
Furthermore, the rules mandate the plaintiff (the arrestor) to search the caveat register before commencing his action and file a consequential affidavit as evidence of such search. Failure of the plaintiff to search the caveat register before proceeding to arrest the ship exposes him to the possibilities of a claim for unlawful arrest of a ship, as the absence of the search prior to the filing of the suit is clear evidence of bad faith or gross negligence on the part of the plaintiff.[viii]
Where the search by the plaintiff reveals that there is a caveat against arrest, such should be disclosed in the plaintiff’s affidavit, and the plaintiff is implored to urge the court to order an arrest of the ship in the face of the caveat by putting forward arguments to support same.
The writ of summons in a such maritime proceeding commenced as an action in rem is expected to specify a relevant person in relation to the maritime claim concerned as the defendant, and that will be in FORM 1. The specification may be by reference to the ownership of the ship or other property identified.[ix] It is pertinent to state that these specifications are important, taking into cognizance the fact that it is an action in rem. However, where the claim is against a sister ship, the ship in relation to which it is a sister ship shall also be identified in the initiating process.[x]
A warrant of arrest of a ship can only be issued by the judge as in FORM 7 and will be valid for a period of 6 months from the date it was issued and may be renewed for another period of 6 months.[xi] A warrant of arrest shall be executed by the admiralty marshal or his substitute. A ship or other property specified in the arrant of arrest shall be under arrest from the time when the warrant is executed until it is lawfully released from arrest or sold by order of the court.[xii]
VACATION OF COURT’S ORDER OF ARREST OF SHIP
All hope is not lost for the ship owner as the court’s order of arrest is not a final decision in an action in rem. Consequently, upon the fulfillment of certain conditions through a written application, the arrest will be vacated. According to the provision of the rules, where a ship is under arrest in a proceeding and the court is satisfied that:
- An amount equal to-
- the amount claimed; or
- the value of the ship or other property, whichever is less, has been paid into court; or
- A bail bond for an amount equal to-
- the amount claimed; or
- the value of the ship or other property, whichever is less, has been filed in the proceedings, the Admiralty Marshal may, on written application by the relevant person, obtain the authorization of a judge to release from arrest the detained ship[xiii]
Upon the fulfillment of any of the conditions highlighted above, the ship will be released.
In order to mitigate colossal damage/ loss and costs incurred, including port charges or dues, crew wages, and maintenance by running the ship as a storage and carriage facility and loss of earning or income whilst under arrest, delayed delivery or sale of the cargo, loss of business or employment of the vessel, a prudent owner of or an interested person in a ship or other property under arrest, who is anxious to have his ship quickly released from arrest is advised to explore any of the conditions above and do his best to properly fit into at least one category to secure the successful release of his ship.
JUDICIAL SALE OF SHIP
However, where the ship owner fails to secure the bail or release of his ship or the bail is not considered sufficient security, the court is empowered to order the sale of a such ship upon the application of the plaintiff (that is, the arrestor) or other interested parties six (6) months after the date of arrest. The ship is to be sold to the Admiralty Marshal, and the proceeds of sale paid into an interest-yielding fixed deposit account in the name of the Admiralty Marshal pending further orders of the court.[xiv]
CONCLUSION
Shipping is pivotal to Nigeria’s economy as it has for a long time been recognized as one of the strong catalysts for Nigeria’s socio-economic development, this is owing to the fact that the country is largely dependent on oil and gas resources for its revenue and these resources are mainly transported by sea. An efficient and effective Admiralty Court system is therefore encouraged, and the efforts of the judiciary are sincerely appreciated, especially the emergence of the Admiralty Jurisdiction Procedure Rules (AJPR), 2011. The innovations in the Admiralty Jurisdiction Procedure Rules are laudable and commendable, especially as they relate to the arrest of ships in Nigeria.
[i] Overview of the Procedure for Arrest of Ships in Nigeria, The Guardian Newspaper, 16 November 2021.
[ii] MV Sirius-B v. MSSCI Ltd (2017) 10 NWLR (Pt. 1572)
[iii] Constitution of the Federal Republic of Nigeria 1999 (as amended)
[iv] Admiralty Jurisdiction Act, 1991
[v] Admiralty Jurisdiction Procedure Rules, 2011
[vi] Order 3, Admiralty Jurisdiction Procedure Rules, 2011.
[vii] Order 7, Rule 1(1), Admiralty Jurisdiction Procedure Rules, 2011.
[viii] Order 7, Rule 1(2)(3), Admiralty Jurisdiction Procedure Rules, 2011.
[ix] Order 5, Rule 1,2&3, , Admiralty Jurisdiction Procedure Rules, 2011
[x] Order 5, Rule 4, Admiralty Jurisdiction Procedure Rules, 2011
[xi] Order 7, Rule 2 Admiralty Jurisdiction Procedure Rules, 2011.
[xii] Order 7, Rule 5, Admiralty Jurisdiction Procedure Rules, 2011
[xiii] Order 10, Rule 5, Admiralty Jurisdiction Procedure Rules, 2011
[xiv] Order 9, Rule 6(2), Admiralty Jurisdiction Procedure Rules, 2011.
Written by Utang Asuquo for The Trusted Advisors
Email us: [email protected]