MARITIME LAW: MAKING ENFORCEABLE MARITIME CLAIMS IN NIGERIA

A. Introduction

Commercial shipping is the business of transporting goods and persons by sea. The focus of this edition of Akintunde Esan’s Legal Illuminations is the making and settlement of enforceable maritime claims arising from maritime disputes in the course of the business of transportation of goods and persons by sea in Nigeria.

B. Maritime Claims

The legal framework regulating the carriage of persons and goods by sea is known as maritime law, also termed admiralty law. In the Black’s Law Dictionary 7th Edition at page 982, Maritime law is defined as

“The body of law governing marine commence and navigation, the transportation at sea of persons and property, and marine affairs in general; the rules governing contract, tort, and workers’ – compensation claims arising out of commerce on or over water.”

Given the above definition of maritime law, we can conclude that, maritime claims are demands for contractual or statutory entitlements in transactions arising from marine commence and navigation, the transportation at sea of persons and property, and marine affairs in general. It includes demands for compensation for torts arising out of commerce on or over water.

In Nigerian maritime jurisprudence, the maritime claims that are enforceable in the Federal High Court - which is the Nigerian Court of law given the exclusive the jurisdiction by the Constitution to hear and determine any question relating to any maritime claim - are classified into two categories namely: proprietary maritime claim and general maritime claim. See Section 2 of the Admiralty Jurisdiction Act,1991.

1. Proprietary Maritime Claim

Proprietary maritime claim is a reference to

a) a claim relating to-

i. the possession of a ship;

ii. the possession of a ship;

iii. a title to or ownership of a ship or of a share in a ship;

iv. a mortgage of a ship or of a share in a ship; or

v. a mortgage of a ship's freight;

b) a claim between co-owners of a ship relating to the possession, ownership, operation or earning of a ship;

c) a claim for the satisfaction or enforcement of a judgment given by the Court or any court (including a court of a foreign country) against a ship or other property in an admiralty proceeding in rem;

d) a claim for interest in respect of a claim referred to in paragraphs (a), (b) or (c) above.

2. General Maritime Claim

A general maritime claim relates to a claim that involves:

a) collision claims;

b) damage to a ship;

c) loss of life or personal injury caused by a ship;

d) loss of or damage to goods carried by a ship;

e) claims arising from agreements for carriage of goods or persons by a ship or for the use or hire of a ship;

f) salvage claims;

g) general average claims;

h) pilotage;

i) towage of a ship or water-borne aircraft;

j) goods supplied or to be supplied to a ship;

k) claims in respect of the construction of a ship;

l) claims for alteration, repair or equipping of a ship;

m) claims for port charges or dues;

n) a claim arising out of bottomry;

o) claim for disbursement on account of a ship;

p) claims for insurance premiums due on a ship or its cargo

q) claims for wages of crewmen;

r) claims for forfeiture or condemnation of a ship or goods carried thereon;

s) claims for enforcement of arbitral awards in proprietary maritime claims; and

t) claims for interest in any proprietary maritime claim.

C. How to make Maritime Claims

By virtue of Section 5 of the Admiralty Jurisdiction Act, maritime claims may be made by an action in personam or an action in rem.

1. Actions in Personam:

An action in personam is an action against individuals who may be carriers, owners, charterers, managers and operators of ships. Defining the expression “action in personam”, Coker JSC, in Nigerian Port Authority v. Panalpina (1973) 5 SC at pp. 96-97; ANLR 408, 422 illuminated thus:

“Etymologically an action in personam is an action brought against a person, an action to compel him to do or not to do a particular thing or take or not to take a particular course of action or inaction. Actions for damages in tort or breaches of contract are clearly directed against the person as opposed to actions which are brought for the purpose of declaring or challenging a status, like proceedings under the matrimonial laws of the country or legitimacy or admiralty action directed against a ship or the res (and so know as an action in rem) or the like. Generally therefore, all actions which are aimed at the person requiring him to do or not to do or take or not to take an action or course of conduct must be and are actions in personam”

It should be noted that, as a matter of principle of law, the fact that, a Judgment was obtained in an action in personam, does not mean that, it is not enforceable against the assets of the defendant sued irrespective of the nature of the claim. See M.V Zack Metal Co. v. International Navigation Corporation (1975) A.M.C. 720.

Similarly, depending on the circumstances of a case, a claim or liability in personam could be pursued through an action in rem. In the case of Schiffahrskontor v. Rivway Ltd. (1998) 4 KLR (Pt. 61)769 at 792,paras. B-C, Mohammed JSC held that:

“The appellants’ liability in personam could be pursued through an action in rem against the ship or its owners, agent, hirer or charterer. Since the vessels on account of which the disbursement were made are no longer available within the jurisdiction of the Federal High Court for the respondents to have proceeded against them, the respondents are therefore right under the law to proceed in an action in personam against the appellant who authorized the disbursement and I agree that the action can be enforced through a proceeding in rem.”

2. Actions in Rem

An action in rem is an action against the ship or vessel. In Anchor Ltd v. The Owner of Ship ELENI 1 PSC 14,15; Nigerian Shipping cases Vol. 1 at page 42 Foster Sutton, FCJ defined “action in rem” as follows:

“An action in rem is one in which the subject-matter is itself sought to be affected, and in which the claimant is enabled to arrest the ship or other property and to have it detained until his claim has been adjudicated upon or until security by bail has been given for the amount or for the value of the property proceeded against where that is less than the amount of the claim.”

Though, generally, under the Admiralty Jurisdiction Act, an action in personam may be brought in the Federal High Court in all cases within the admiralty jurisdiction of the Court, there are however some claims which the Act provides that, they “may” be brought in rem, these claims include the following:

a) claims for possession, ownership, mortgage of a ship or of any share in a ship;

b) claims for damage done by a ship either by collision or otherwise;

c) claims between co-owners relating to the possession, ownership, operation or earning of a ship;

d) claims for the enforcement of a maritime lien or other charge on a ship relating to:

i. salvage

ii. damage done by a ship

iii. crew members wages

iv. masters disbursements

e) claims brought under Section 2 of the Admiralty Act in which the relevant person was the owner, charterer or in possession or control of the ship or a related ship when the cause of action arose;

f) claims for port, harbour, canal or light toll charges or dues; and

g) claims resulting from loss or damage to goods.

Though, a judgment obtained in an action in rem provides no basis for imposing personal liability on the ship-owner who has not appeared to defend the action nor does it attach to any of his other ships. See M.V Zack Metal Co. v. International Navigation Corporation (supra).

However, a judgment in an action in rem does not preclude the claimant from bringing a subsequent claim in personam against the owner of the vessel in the same claim where the proceeds of sale of the res are insufficient to cover the damages awarded in the rem action. See: Nelson v Crouch (1863) L.J.C.P 46 at 48; The John and Mary (1859) S.W.A 471.

D. Limitation periods for Making Maritime Claims

1. Under the Admiralty Jurisdiction Act

The limitation period for making a maritime claim or on a claim on a maritime lien or other charge is the limitation period that would have been applicable to the claim if the claim had been made otherwise than under Admiralty Jurisdiction Act, which would imply the application of other laws which prescribes a limitation period such as the Hague Rules applicable in Nigeria by the Carriage of Goods by Sea Act, which prescribed a limitation period of one year for certain classes of claims and the Merchant Shipping Act which prescribe a two year period for claims involving salvage. However, if no such claim could have been so made, a period of three years after the cause of action arose.

The general rule on statutory interpretation is that the provisions of a specific enactment overrides the provisions of general enactment on the subject. This would imply that, the provisions of the Admiralty Jurisdiction Act takes precedence over statutes with general application.

It is noteworthy that, under the Admiralty Jurisdiction Act, statutes with specific application of limitation period on a claim - the limitation period fixed in relation to maritime claim by any enactment or law - takes precedence over the limitation prescribed by the Act. See Section 18 (2) Admiralty Jurisdiction Act.

2. Limitation Act 1966

The Limitation Act provides that, actions including actions founded on simple contract or recovery of any sum, brought to court after the expiration of six years from the date of which the cause of action accrued are statute bared, thus unenforceable. Section 7 (1)(a) and (e).

The general restriction limiting the time within which actions founded on contract or tort must be brought does not apply to any cause of action within the Admiralty jurisdiction of the Federal High Court which is enforceable in rem except an action to recover a seaman’s wages. See Section 7(3); Schiffahrskontor v. Rivway Ltd. (1998) 4 KLR (Pt. 61)769 at 789, para. H, per Ogwuegbu JSC.

E. Jurisdiction

1. The Federal High Court

The Federal High Court as said earlier is the only court in Nigerian exclusively vested with the jurisdiction to hear and determine maritime claims and other admiralty causes or matters, whether civil or criminal See Section 251(1)(G) of the 1999 Constitution; Section 7(I)(g) Federal High Court Act, 1973; Section 3 Admiralty Jurisdiction Act, 1991.

2. Foreign Jurisdictional Clause

A foreign Jurisdictional clause is an ouster clause in a maritime contract agreement, which ousts the jurisdiction of the Court in Nigeria to entertain or hear any dispute on a maritime claim but, vests the jurisdiction in a foreign court. In Nigerian maritime jurisprudence, a foreign Jurisdictional clause is not enforceable by virtue of Section 20 of the Admiralty Jurisdiction Act.

Section 20 (supra) categorically provides that, any agreement by any person or party to any cause, matter or action, which seeks to oust the jurisdiction of the Federal High Court in Nigeria, is null and void, if it relates to - any of the maritime claims discussed in this legal Illumination or - matter falling under Admiralty Jurisdiction Act and if—

(a) the place of performance, execution, delivery, act or default is or takes place in Nigeria; or

(b) any of the parties resides or has resided in Nigeria; or

(c) the payment under the agreement (implied or express) is made or is to be made in Nigeria; or

(d) in any admiralty action or in the case of a maritime lien, the plaintiff submits to the jurisdiction of the Court and makes a declaration to that effect or the rem is within Nigerian jurisdiction; or

(e) it is a case in which the Federal Government or the Government of a State of the Federation is involved and the Federal Government or Government of the State submits to the jurisdiction of the Court; or

(f) there is a financial consideration accruing in, derived from, brought into or received in Nigeria in respect of any matter under the admiralty jurisdiction of the Court; or

(g) under any convention, for the time being in force to which Nigeria is a party, the national court of a contracting State is either mandated or has a discretion to assume jurisdiction; or

(h) in the opinion of the Court, the cause, matter or action should be adjudicated upon in Nigeria.

In the case of JFS Investment Ltd. v. Brawal Line Ltd. & Ors. (2010) 7-12 KLR (Pt. 286) 2611, per Adekeye, JSC reaffirmed at page 2633, para. D, that, Section 20 of the Admiralty Jurisdiction Act 1991 has virtually removed the element of court’s discretion in deciding whether to uphold a foreign jurisdictional clause.

F. Conclusion

In making maritime claims, it is instructive to bear in mind that, some of these claims are subject to conventional and statutory limitations. These limitations will be discussed in the next edition of my legal illuminations series on maritime law.

Akintunde Esan, Legal Practitioner/Consultant, Chartered Mediator and Legal Blogger- Managing Partner at Ase Olodumare Chambers.

The above legal illuminations are not a substitute for legal advice. You are advised to contact Akintunde Esan for further illuminations

MARITIME LAW: MAKING  ENFORCEABLE MARITIME CLAIMS IN NIGERIA

 is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)