The Legal Framework Governing the Arrest and Detention of Vessels Under Nigerian Maritime Law

Contributor: Cyril Samuel Dandison

Introduction

In the dynamic world of maritime commerce, the arrest and detention of vessels serve as powerful tools for enforcing maritime claims and securing financial obligations. For stakeholders navigating the turbulent waters of the shipping industry, understanding the legal intricacies surrounding these actions is not merely academic but essential for safeguarding their interests. The arrest of a ship is a unique remedy available under maritime law that ensures claimants can obtain pre-judgment security, thereby preventing shipowners from evading their responsibilities by moving their vessels beyond the court’s jurisdiction.^[1] This legal mechanism is crucial in a country like Nigeria, where maritime activities are pivotal to economic development and global trade routes.^[2] This article delves into the legal framework governing the arrest and detention of vessels under Nigerian maritime law, providing a comprehensive analysis of the procedural requirements, legal principles. It explores the essence of ship arrest as a measure to secure maritime claims, the procedural rules for effecting an arrest, and the potential consequences for shipowners, including the judicial sale of vessels.

In the situation of Nigeria, the legal framework governing its maritime jurisdiction is robust and multifaceted, reflecting both international conventions and domestic legislation. And understanding this framework is essential for comprehending Nigeria’s rights and obligations, particularly in its interactions with other states and entities operating within its maritime zones. Thus, a detailed overview of Nigeria’s maritime jurisdiction, focusing on the legal principles applicable to each maritime zone, from internal waters to the exclusive economic zone, and their implications for sovereignty and resource exploitation, is necessary particularly for beginners to appreciate better the maritime regime in Nigeria before delving into the arrest and detention of ships. They are as follows; ^[3]

1. Internal Waters

Internal waters, also referred to as national or interior waters, encompass the water bodies on the landward side of a state’s baseline. This includes bays, estuaries, ports, and other water bodies enclosed by straight baselines. These waters are considered part of the state’s territory, and as such, the state exercises full sovereignty over them, similar to its land territory.^[4] This means that Nigeria has the exclusive right to regulate access, use, and activities within its internal waters without the need to conform to international regulations applicable to other maritime zones.

1. Territorial Sea

The territorial sea extends up to 12 nautical miles from the baseline and is subject to the sovereignty of the coastal state, including the airspace above and the seabed below. Nigeria’s Territorial Waters Act, however, extends this limit to 30 nautical miles for specific regulatory purposes.^[5] Within this zone, Nigeria exercises full legislative and enforcement jurisdiction, allowing it to regulate navigation, resource exploitation, and environmental protection, among other activities. While foreign vessels enjoy the right of innocent passage, this right is subject to restrictions, particularly in matters affecting the security and good order of the state.^[6]

1. Contiguous Zone

Beyond the territorial sea lies the contiguous zone, which extends up to 24 nautical miles from the baseline. In this zone, Nigeria can exercise control necessary to prevent or punish infringements of its customs, fiscal, immigration, or sanitary laws. While the contiguous zone does not confer sovereignty as the territorial sea does, it allows for a measure of regulatory oversight that enhances Nigeria’s ability to enforce its laws and protect its interests in this buffer zone.^[7]

1. Continental Shelf

The continental shelf comprises the seabed and subsoil beyond the territorial sea, up to 200 nautical miles from the baseline, and potentially beyond, if certain geological criteria are met. The continental shelf is rich in natural resources, particularly oil and gas, making it a zone of high economic interest. Nigeria’s rights over its continental shelf are exclusive, meaning that no other state may exploit these resources without Nigeria’s express consent. These rights are recognized under both the 1958 Geneva Convention on the Continental Shelf and the 1982 United Nations Convention on the Law of the Sea (UNCLOS).^[8]

1. Exclusive Economic Zone (EEZ)

The EEZ extends up to 200 nautical miles from the baseline and includes both the water column and the seabed. Within the EEZ, Nigeria has sovereign rights for exploring, exploiting, conserving, and managing natural resources, whether living or non-living.^[9] This zone also allows for the regulation of marine scientific research and the protection of the marine environment. While other states have the right to freedom of navigation and overflight, these activities must be conducted in a manner that respects Nigeria’s resource rights and environmental regulations.^[10]

Legal Framework for the Arrest and Detention of Ships in Nigeria

The framework for arrest of ship is anchored in statutory provisions, procedural rules, and judicial precedents that collectively define the rights and obligations of maritime parties. Central to this legal framework is the exclusive jurisdiction of the Federal High Court.^[11] Which confers jurisdiction over admiralty matters on this court. Further elaboration on the court’s admiralty jurisdiction is provided by the Admiralty Jurisdiction Act^[12] (AJA) and the Admiralty Jurisdiction Procedure Rules 2023 (AJPR), which set out the procedural guidelines for the arrest and detention of vessels in Nigeria.^[13] An action in rem is initiated by a writ of summons filed at the Federal High Court, accompanied by a statement of claim and all relevant documentary evidence.^[14] The plaintiff must file written statements of witnesses within seven days of filing the writ.^[15] These statements are adopted on oath during trial, and notably, the witness need not be present in Nigeria at the time of filing, which reflects the flexible approach of admiralty proceedings in accommodating international maritime disputes.

After filing the writ, the plaintiff may file an ex parte application for a warrant of arrest if the vessel is within Nigeria’s territorial waters or is expected to arrive within three days.^[16] This ex parte nature of the application allows for swift legal intervention to prevent the ship from leaving the jurisdiction, ensuring that the plaintiff’s claim is secured. Importantly, before proceeding with the arrest, the plaintiff is mandated to search the caveat register, as failure to do so may result in liability for the unlawful arrest of the ship.^[17] A ship can only be arrested if there is no caveat against arrest or if the court is persuaded, despite the existence of a caveat, to grant the warrant of arrest.

Once a warrant of arrest is granted, it is executed by the Admiralty Marshal or his deputy, and the ship remains under arrest until it is released by court order or sold.^[18] The warrant remains valid for six months and can be renewed for a further six-month period. This highlights the court’s ability to control and manage the timeline of admiralty proceedings, ensuring that the arrest mechanism is not abused but serves its intended purpose of securing claims in maritime disputes.^[19]

The arrest of a ship is not a final determination of the rights of the parties; rather, it is an interlocutory step taken to secure the claim while the substantive issues are being adjudicated. Therefore, Nigerian law provides mechanisms for the vacation of an arrest order upon fulfillment of certain conditions.^[20] According to the AJPR, the owner or any interested party may apply to the court for the release of the vessel by showing that sufficient security has been provided. This can be in the form of:^[21]

• A sum paid into court equal to the amount claimed, or
• A bail bond for an equivalent amount.

The value of the ship or other property is also a factor considered in determining the adequacy of the security. Once the court is satisfied that sufficient security has been provided, it will authorize the Admiralty Marshal to release the vessel from arrest. This provision ensures that while a plaintiff is entitled to secure its claim, the shipowner is not unduly burdened, particularly in cases where the value of the ship far exceeds the amount claimed.^[22]

This balancing of interests demonstrates the Nigerian courts’ awareness of the economic realities of the shipping industry. Ships are critical assets whose prolonged detention can result in substantial losses, including crew wages, port charges, and loss of business opportunities. Thus, a shipowner who wishes to mitigate these losses can promptly take steps to provide security and secure the vessel’s release while the substantive issues are being litigated.

In cases where the shipowner fails to secure the release of the vessel, either by providing bail or paying the amount claimed into court, the AJPR empowers the court to order the judicial sale of the arrested ship.^[23] A judicial sale is typically pursued after the vessel has been under arrest for six months, and it is viewed as a last resort remedy to satisfy the plaintiff’s claim. The process is initiated by an application by the plaintiff or any other interested party, and the sale is conducted by the Admiralty Marshal.^[24]

The proceeds from the judicial sale are paid into an interest-bearing account pending further orders from the court regarding their disbursement.^[25] The judicial sale extinguishes all prior claims and encumbrances on the ship, ensuring that the purchaser acquires a clean title to the vessel. This mechanism not only protects the interests of the plaintiff but also provides finality to the process, allowing the claimant to recover the amounts owed while ensuring that the shipowner is not perpetually liable for the claims.^[26]

The decision to order the judicial sale of a vessel is not taken lightly by the court. Judicial sale is often considered when the shipowner has failed to act in good faith by neglecting to provide sufficient security or when it is evident that the continued detention of the vessel will not adequately protect the plaintiff’s claim. Moreover, the judicial sale must follow due process, ensuring that the ship is sold for a fair market price, and that all proceeds are properly accounted for and disbursed in accordance with the law.

Conclusion

The legal framework governing the arrest and detention of vessels in Nigeria is both robust and sophisticated, providing a delicate balance between securing maritime claims and protecting the interests of shipowners. The Admiralty Jurisdiction Act and Admiralty Jurisdiction Procedure Rules, in conjunction with judicial precedents, establish a clear procedural pathway for the arrest, detention, and potential judicial sale of ships. The framework ensures that the arrest of a ship is conducted in an orderly and just manner, with adequate protections for all parties involved.

Keywords: Admiralty, Jurisdiction, Ship-Arrest, Judicial-Sale, Federal-High-Court, Territorial-Waters, Internal-Waters, and Contiguous-Zone, Continental Zone.

Snippet: The legal framework governing the arrest and detention of vessels in Nigeria is both robust and sophisticated, providing a delicate balance between securing maritime claims and protecting the interests of shipowners.

1. Chukwucheta T. Emejuru and U. Frank-lgwe, “Arrest of Ship under Maritime Law,” International Journal of Tax

   Law, Fiscal Policies and Administrative Studies (2003-2004) voll, p.llO. ↑

2. Ibid ↑
3. C.W. Dundas, ‘The Impact of Maritime Boundary Delimitation on the Development of Offshore Mineral Deposit’ (1994) 20 (4), Resources Policy 273. ↑
4. Law of the Sea Convention, Art. 8; Territorial Sea Convention, Art. 5(1); R. R. Churchill and A.V. Lowe, The Law

   of the Sea (Manchester University Press, 2010) 60; See Art 8 of LOSC and Art. 5(1) of Territorial Sea Convention ↑

5. law of the Sea Convention, Art. 4; Territorial Waters Act, 1967 (as amended) ↑
6. Ibid ↑
7. Yoshifumi Tanaka, The International Law of the Sea, Cambridge, (2012). ↑
8. Ted L.McDorman, “The Continental Shelf Regime in the Law of the Sea Convention: A Reflection on the First

   Thirty years” in David Freestone, The 1982 Law afthe Sea Convention at 30; Successes, Challenges and New

   Agenda, (Martinus Nijhoff Publishers 2012) 69 ↑

9. Churchill and Lowe (n7) 160; See also Article of the LOSC, 1982 ↑
10. Section 1(1) Exclusive Economic Zone Act 1978 ↑
11. Section 251(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) ↑
12. Section 1 of the Act ↑
13. Ibid ↑
14. Order 3 Rule 3(2)(a), AJPR 2023 ↑
15. Ibid ↑
16. Order 7 Rule 1(1), AJPR 2023 ↑
17. Order 7 AJPR 2023 ↑
18. Ibid ↑
19. Order 7 AJPR 2023 ↑
20. Section 5 of the AJA Act Cap A5 LFN 2004 ↑
21. Order 10 Rule 5(1)(b), AJPR 2023; Ibe Abai & Coy. Nig. Ltd. & Anor. v. Oceanic Traders Navigation Ltd (1907-1979) 1 NSC 418 ↑
22. Ibid ↑
23. 3 Order 9 Rule 7, Order 17, AJPR 2023 ↑
24. Order 9, Rule 6(2), AJPR, 2023 ↑
25. Section 6 of the AJA Act Cap A5 LFN 2004 ↑
26. Ibid ↑