The Procedure For Arrest And Detention Of Ship Under Maritime Law In Nigeria

• Published date: 05 March 2024
• Law Firm: SK Solicitors
• Author: Mr Kingsley Izimah

Introduction:

Ships can be arrested to enforce maritime claims or compliance with some maritime obligations. An arrest of a vessel is the prerequisite for the court to establish jurisdiction. If the vessel cannot be seized, the court may have no right over the vessel. Arrest is the physical process by which, a court official, the Nigeria Customs or Ports Authority goes aboard the vessel and physically takes charge of it. Nigerian Maritime and Safety Agency (NIMASA) is also empowered to arrest ships to enforce safety regulations and requirements. In instances of arrest of a ship, the notice of arrest must be posted on the vessel, a copy given to the master or person in charge, as well as to the owner and all other lien holders who claim an interest in the vessel.

Arrest of a vessel is part of the process by which an Admiralty Court gains jurisdiction over the subject matter of a law suit. These law suits are known as "in rem" actions meaning that the action is again a "thing" rather than a person.

Generally, the vessel itself is responsible for payment of liens, mortgages or any other maritime lien that may arise. When the owner encumbers a vessel with a First Preferred Ship's Mortgage, it is the ship that guarantees payment rather than the owner. However, the owner may separately contract by a personal promise to pay or other type of guarantee to be personally liable.

The sole purpose of arresting a ship is to ensure that the judgment in the action will be satisfied if in favour of the plaintiff. The arrest of a ship is therefore likened to "sequestration". The term "sequestration" has no particular technical meaning; it simply means the detention of property by a court of justice for the purpose of answering a demand which is made. That is exactly what the arrest of a ship is.

Ship arrest is a civil law admiralty procedure which is practically entered upon an activity or enterprise by imposing a "warrant of arrest" on the ship. This article provides the reader with an insight concerning ship arrest, detention, reasons for ship arrest, purpose of ship arrest and consequences of ship arrest under maritime and shipping law in Nigeria.

What is a ship?

Under section 26 of the Admiralty Jurisdiction Act, 1991, a ship is a vessel of any kind used or constructed for use of navigation by water, however it is propelled or moved and includes barge, lighter or other floating vessel, including a drilling rig, a hover-craft, an offshore industry mobile unit and a vessel that has sunk or is stranded and the remains of such vessel, but does not include a vessel under construction that has not been launched.

On the other hand, a "vessel" is a ship, brig, sloop, or other craft used or capable of being used to navigate on water. The structure's purpose must to some reasonable degree be to transport passengers, cargo or equipment from place to place across navigable waters. See 1952 Arrest Convention, Coastal and Inland Shipping (Cabotage) Act, No 5 of 2003 ("Cabotage Act").

Nature and essential characteristic of ships and marine vessel

Ships and marine vessels are means of transportation. The essential characteristics of a vessel are that the contrivance must be a medium for transportation and it must be able to navigate across waters however propelled. See the cases of Ecodrill (Nig.) Ltd. v. A.B.I.R (2015)11 NWLR (Pt.1470) 303, pp. 341-342, paras. H-A, Mobil Producing (Nig.) Unltd. V. Ayeni (2010) 4 NWLR (Pt. 1185) 586.

Whether an order can be made against a vessel

Where a vessel is the means by which the wrongdoer (its owner) had done wrong to some other party, it is the means by which the wrongdoer (the defendant is brought to court as a defendant. In such a situation, the circumstances dictate an action in rem which allows a legal complaint to be pursued especially where parties are in different jurisdiction. Therefore, it is when a proper action in rem has been constituted that an order can be made against the vessel.

Whether a vessel is a separate legal entity

The admiralty law recognizes a vessel as a separate legal entity.

Meaning of Maritime lien:

By the provision of section 5 (3) of the Admiralty Jurisdiction Act, 1991, "maritime lien" means a lien for -

• Salvage, or
• Damages done by a ship, or
• Wages of the master or of a member of the crew of a ship or
• Master's disbursements.

See the case of K. Maertsch v. Bisiwa (2014) 10 NWLR (Pt. 1416) 479, p.505, paras F-G.

By virtue of section 5(3) of the Admiralty Jurisdiction Act, 1991, in any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the court against that ship, aircraft or property.

By the provision of section 5(4) of the Admiralty Jurisdiction Act, 1991, in any other claim under section 2 of the Act, where the claim arises in connection with a ship and the person who would be liable on the claim in an action in personam (referred to in the Act as "the relevant person") was, when the cause of action arose, the owner or charterer of or in possession or in control of the ship, an action in rem (whether or not the claim gives rise to a maritime lien on that ship) be brought against -

a. That ship, if at the time the action is brought the relevant person is either the beneficial owner of that ship in respect of all the shares in it or the charterer of the ship under a charter by demise; or

b. Any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner in respect of all the shares in the ship.

By the provision of section 5(1) of the Admiralty Jurisdiction Act, 1991, subject to the provision of section 6 of the Act, an action in personam may be brought in the court in all cases within the admiralty jurisdiction of the court.

In an admiralty action in rem, the failure of the plaintiff to join the vessel ab initio ordinarily would not render the action incompetent to rob the trial court of its jurisdiction over the parties in the dispute.

When jurisdiction of court to arrest a ship will be activated

Section 1 of the Admiralty Jurisdiction Act, 1991 covers the admiralty jurisdiction of the Federal High Court. Section 1(e) of the Act encompasses any claim for liability incurred for oil pollution damage. Thus, the Federal High Court has jurisdiction in matters arising from any claim for liability incurred for oil pollution damages.

The Admiralty Jurisdiction Act, 1991 confers in the Federal High Court, jurisdiction over maritime claims. Section 2(1) of the Act stipulates that a reference to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim. Section 2(2) of the Act sets out the claims that fall within a proprietary maritime claim whilst section 2 (3) of the Act contains a list of the nature of general maritime claim. In sum, section 2 of the Act shows the classification of maritime claims and such claims are related to ships. Thus, for a claim to be described as a maritime claim, the act complained of must have arisen from a ship and must fall within the category of acts listed under section 2 (2) and (3) of the Admiralty Jurisdiction Act. In other words, the damages averred to have been suffered and the consequent claim must arise from or be related to a ship or vessel.

Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether registered or not and wherever the residence or domicile of their owners may be.

In an admiralty action, the jurisdiction of the court to arrest a ship cannot be activated until a writ of summons is issued and a statement of claim is served on the said ship.

What is arrest of ship?

The arrest of a ship in an action in rem is the means whereby, among other things, a plaintiff obtains security for a debt of a special character without judgment or order for payment of money. It is a right to him by the legislature, a right the scope of which has been extended by the Administration of Justice Act, 1956.Arrest is the means given by law, whereby security is obtained for a debt of a special character and by so arresting the plaintiff becomes a secured creditor.

Marine admiralty has this jurisdiction to prevent a ship legally from moving or trading as long as the resolution of the concerned court action is pending. In this case the ship, which has authorized by the pertained commission to be arrested, is usually taken in charge in conjunction with a claim rather than a warrant of arrest for its own sake. In this instance, the ship is detained by judicial process in order to secure a maritime claim, but the arrest warrant does not imply the seizure of a ship in execution or gratification of a judgment.

Arrest of sister ship:

In the context of a legal claim against a particular ship and in certain circumstances, the law allows the arrest of another ship belonging to the same owner called a "sister ship". Sister ship arrest is really an attachment, in this case, an attachment of the sister ship. Like an attachment, the sister ship does not meant that the maritime lien against the offending ship becomes enforceable against the sister ship. Arrest is also permissible of any other ship or ships which, when the arrest is effected, is or are owned by the person who is liable for the maritime claim.

Nature of debt that would warrant arrest of a ship:

The special character of the debt that would warrant arrest of a ship is that it is incurred by giving credit to the owners of vessels for the use of those vessels. It is to be regarded in this way; it is the advancing of good on credit to a ship which, in the ordinary course of business, moves away from the port of supply, to which it may or may not return. The goods have been...