The International Comparative Legal Guide to:

Shipping Law 2014

2nd Edition
A practical cross-border insight into shipping law
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The International Comparative Legal Guide to: Shipping Law 2014

General Chapter:
1

Limitation of Liability: Recent Developments Under English Law Ed Mills-Webb & Mark Tilley,
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Clyde & Co LLP

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Chapter 24

Nigeria
Bloomfield Advocates & Solicitors

Olabode Adegoke

The International Convention on Salvage 1989 embodied in

section 387 of the Merchant Shipping Act.

1 Marine Casualty
1.1

i)

In the event of a collision, grounding or other major

casualty, what are the key provisions that will impact
upon the liability and response of interested parties? In
particular, the relevant law / conventions in force in
relation to:

iv)

Sections 1 and 2 (3)(g) of the Admiralty Jurisdiction Act

1991.
Sections 381-385 of MSA 2007.
Section 398 of MSA 2007.
v)

Collision

Sections 351-359 of THE MSA 2007.

Section 1 and 2(3)(a) Admiralty Jurisdiction Act 1991.

Sections 337-350 of the Merchant Shipping Act (MSA)

2007.
International Regulations for Preventing Collisions at Sea
1972.
ii)

Pollution
Section 251 of the 1999 Constitution.
Section 1 (1)(e) Admiralty Jurisdiction Act 1991.
Sections 322-325 and section 335-336 of the MSA.
Environmental Impact Assessment Act 1992.
International Conventions on the Prevention of Pollution as
listed in section 335 of the MSA namely: (i) International
Convention for the Prevention of Pollution from Ships
1973/1978 and the anexes thereto; (ii) Convention Relating
to Intervention on the High Seas in Cases of Threatened Oil
Pollution Casualties 1969; (iii) International Convention on
Prevention of Maritime Pollution by Dumping of Wastes and
Other Matters,1972; (iv) International Convention on Oil
Pollution Preparedness, Response and Co-operation, 1990;
(v) International Convention on Civil Liability for Oil
Pollution Damage 1992; (vi) Convention on Limitation of
Liability for Maritime Claims, 1976 and the 1996 Protocol
thereto; (vii) Convention on the Establishment of an
International Fund for Compensation for Oil Pollution
Damage, 1971 and its Protocol of 1992; (viii) Basel
Convention on the Control of Transboundary Movements of
Wastes and their Disposal 1989; and (ix) any International
Agreement or Convention relating to the prevention,
reduction or control of pollution of the sea or other waters by
matters from ships, and civil liability and compensation for
pollution damage from ships to which Nigeria is a party.
National Environmental Standards and Regulations
Enforcement Agency Act 25 of 2007.

iii)

Salvage / general average

Limitation of liability
Section 1 (1)(d) of the Admiralty Jurisdiction Act 1991.

Section 251 of the 199 Constitution of Nigeria.

Order 13 Rule 6 of Admiralty Jurisdiction Procedure Rules
2011.

Wreck removal

Conventions of Limitation of Liability for Maritime Claims

1976 and 1996 Protocol as embodied by the MSA 2007.
vi)

The limitation fund

In the event of a collision, grounding or any major casualty, the

Nigerian Maritime Administration and Safety Agency (NIMASA)
is empowered by the Merchant Shipping Act (MSA) 2007 and
NIMASA Act to respond in such situations. The MSA is the
relevant law in force in relation to collisions, grounding and major
casualties.
The Conventions in force by virtue of the MSA are as follows:
The International Regulations for Preventing of Collisions at Sea
1972.
The International Convention on Salvage 1989 is in force in Nigeria
by virtue of section 387 of the MSA.
The pollution conventions in force in Nigeria by virtue of section
335 of the MSA are:
the International Convention for the Prevention of Pollution
from Ships 1973/1978 and the annexes thereto;
the Convention Relating to Intervention on the High Seas in
cases of Threatened Oil Pollution Casualties 1969;
the International Convention on Prevention of Marine
Pollution by Dumping of Wastes and Other Matters 1972;
the International Convention on Oil Pollution Preparedness,
Response and Co-operation 1990;
the International Convention on Civil Liability for Oil
Pollution Damage 1992;
the Convention on Limitation of Liability for Maritime
Claims, 1976 and the 1996 Protocol thereto;
the Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage 1971 and
its Protocol of 1992; and
the Basel Convention on the Control of Transboundary
Movement of Wastes and their Disposal 1989.

Section 2 (3) g and h of the Admiralty Jurisdiction Act 1991.

Section 386-404 of MSA 2007.

128

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Bloomfield Advocates & Solicitors

1.2

Nigeria
Non-contractual claims against the carrier are allowed as
expressions of loss, provided the loss is expressly proven.

What are the authorities powers of investigation /

casualty response in the event of a collision, grounding or
other major casualty?

Nigerian Maritime Administration and Safety Agency (NIMASA).

2.3

In what circumstances may the carrier establish claims

against the shipper relating to misdeclaration of cargo?

2 Cargo Claims
2.1

What are the international conventions and national laws

relevant to marine cargo claims?

Rotterdam Rules signed but not yet ratified or enacted into

law.
The Hague Rules ratified and enacted into law by the
Carriage of Goods by Sea Act Cap C2. 1926 (COGSA).
Hamburg Rules ratified and enacted into law by the United
Nations Convention on Carriage of Goods by Sea
(Ratification and Enforcement) Act 2005.
Convention on the Limitation of Liability for Maritime
Claims 1976 as amended by the 1996 Protocol.
2.2

What are the key principles applicable to cargo claims

brought against the carrier?

In terms of section 322 of the MSA, no shipper is allowed to ship

dangerous goods without properly marking the goods as
dangerous. Where the shipper fails to distinctly mark the nature
of the goods shipped as dangerous, the shipper shall be liable to
the carrier for loss resulting from the shipment of such goods.

Nigeria

Nigerian Port Authority (NPA).

3 Passenger Claims
3.1

What are the key provisions applicable to the resolution of

maritime passenger claims?

Sections 340 and 341 of the MSA apply to passenger claims.

Actions must be brought to court within two years from the date
when the loss or injury was caused. Limitation of liability for loss
of life or personal injury to passengers of a ship is 175,000 units of
account multiplied by the number of passengers which the ship is
authorised to carry by virtue of its ships certificate.

4 Arrest and Security

The key principles applicable depends on the underlying rules
governing the contract of carriage, as both the Hague and Hamburg
rules are enforceable in Nigeria. However, in the absence of an
agreement between the parties, the Hamburg rules automatically
apply.

4.1

The carrier, shipper, consignee and endorsee of the bill of

lading or other document evidencing the contract of carriage
are entitled to sue.

There is no international convention applicable to arrest of

ships in Nigeria.
All claims must fall under the maritime claims as defined in
section 2 (2) of the Admiralty Jurisdiction Act, which include
claims relating to ownership of a ship, mortgage of a ship,
mortgage of a ships freight, claim for loss or damage of
goods, general average claims, salvage, pilotage, towage,
crew wages and general average.
Arrest of a ship is done by making an ex parte application at
the Federal High Court and is heard by a judge in chambers.
The application can be made three days before the ship is
expected to arrive within the courts jurisdiction. Arresting
party must first ensure that a caveat against arrest is not in
force on the ship by conducting a search in the caveat book
before filing the application. Should the application be
granted, a warrant is issued and valid for six months, but
renewable for another six months.
Where an action is against a sister ship or associated ship, the
arresting party must prove that the person liable is the
beneficial owner of both ships and that he or she was the owner
or in control of the ship when the cause of action arose.
Acceptable forms of security for release of ship under arrest,
is the deposit of an amount equal to the amount of the claim
into court or a bail bond for an amount equal to the claim
sum or value of the ship or property, whichever is less paid
into court. Letters of guarantee or undertaking given by a
P&I Club, a reputable insurance company or bank are also an
acceptable form of security.

Any person whose name is on the contract of carriage is the

carrier. Thus identity of carrier or demise clauses are not
recognised by virtue of the Hamburg rules.
Once a bill of lading is endorsed to a third party, is a
rebuttable presumption of the quantity shipped. Thus clauses
in the bill of lading relating to unknown quality or quantity
of the goods shipped are allowed.
The suit must be brought within two years from the date the
goods were delivered or on the last day on which the goods
should have been delivered. However if the Hague rules
expressly apply, then the time bar is reduced to one year from
the date of delivery of goods or the date when the goods
should have been delivered.
Limitation of liability is based on the limits set by the
applicable rule. For example, to an amount equivalent to 835
units of account per package or 2.5 units of account per
kilogram of gross weight and an amount equivalent to two
and a half times the freight payable for the goods delayed, by
virtue of the Hamburg rules. However, with regard to other
general limits, section 356 of the MSA sets out the limitation.
In terms of section 354 of the MSA, the right to limit is lost
if it is proven that the loss, damage or delay resulted from the
carriers personal act or omission done with the intent to
cause such loss, or recklessly and with knowledge that such
loss, damage or delay would result. This extends to acts of
agents and servants of the carrier acting within the scope of
their employment.
Charter party provisions can be incorporated into the bill of
lading. There should be express incorporation of provisions
like arbitration clauses in order for such clauses to be
enforceable and binding on third parties.

What are the options available to a party seeking to

obtain security for a maritime claim against a vessel
owner and the applicable procedure?

4.2

Where security is sought from a party other than the vessel

owner (or demise charterer) for a maritime claim, including
exercise of liens over cargo, what options are available?

Arrest or attachment is only allowed against the vessel owner or

demise charter, and only where the charter was in possession and

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129

Bloomfield Advocates & Solicitors

control of the vessel at the time the cause of action arose and at the
time the action is brought.

Nigeria

Bunkers can be arrested to obtain an attachment or injunction in

maritime claims.
The exercise of a possessory lien over cargo by a ship owner or
carrier is allowed for unpaid freight.
4.3

In relation to maritime claims, what form of security is

acceptable; for example, bank guarantee, P&I letter of
undertaking.

The Admiralty Jurisdiction Procedure Rules 2011 (AJPR) provide

for security to be supplied by the arrested party in the amount
claimed or the value of the ship or property under arrest.
The AJPR provides for payment of cash into court or a bail bond in
the same value to be filed in court. In practice, the form of security
is usually according to the application of the arresting party which
is most of the time a bank guarantee from a Nigerian bank.

5 Evidence
5.1

What steps can be taken (and when) to preserve or

obtain access to evidence in relation to maritime claims
including any available procedures for the preservation of
physical evidence, examination of witnesses or pre-action
disclosure?

All processes and witness statements to be relied on are placed

before the court. There are no special steps specific to maritime
claims taken to preserve or obtain access to evidence. However, the
use of discovery and interrogatories is used in the preservation of
physical evidence and to obtain access to evidence.
5.2

What are the general disclosure obligations in court

proceedings?

The pleadings of parties i.e. statement of claim, statement of

defence, witness statement on oath evidence and exhibits are
exchanged and put before the court before commencement of trial.

6 Procedure
6.1

Describe the typical procedure and time-scale applicable

to maritime claims conducted through: i) national courts
(including any specialised maritime or commercial courts);
ii) arbitration (including specialist arbitral bodies); and iii)
mediation / alternative dispute resolution.

The Federal High Court has exclusive jurisdiction in maritime

claims. The claim must be listed under section 2 of the Admiralty
Jurisdiction Act 1991 as a maritime claim. Admiralty actions are
governed by the Admiralty Jurisdiction Procedure Rules 2011 and
the Federal High Court (Civil Procedure) Rules 2009.
Actions are commenced by way of writ (Form 1) issued by the
Admiralty Marshal and filed with a statement of claim and all other
supporting documents to be relied upon in court. Service out of
jurisdiction is done by courier when an application for leave to
serve outside the courts jurisdiction is granted. Actions are
relatively long, depending on the nature of the action and interest is
calculated.

130

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Nigeria
Section 20 of the Admiralty Jurisdiction Act 1991 makes null and
void any clause which seeks to oust the jurisdiction of the court in
favour of a foreign jurisdiction in admiralty matters. However, the
courts recognise and enforce foreign judgments and awards on the
basis of judgments governed by the Foreign Judgements Reciprocal
Enforcement Act and Reciprocal Enforcement of Judgements Act.
Where proceedings have been instituted contrary to an arbitration
clause, the opposing party can apply to court for a stay of
proceedings pending reference to the outcome of arbitration
proceedings. Stay of the court proceedings should only be sorted
after the opposing party enters appearance for the pending suit, but
before filing a statement of defence.
The plaintiff has seven days from the date of filing the writ of
summons within which to file witness statements. All documents to
be relied on in court are front loaded before trial commences.
Hearing of actions is relatively lengthy and could take years.
Interest on money paid into the courts interest yielding account is
awarded based on the banks calculations. On the other hand, if the
claim is not paid into court, interest is based on the provisions in the
contractual agreement between the parties involved.
The general rule is that cost is at the discretion of the court and
when fixing cost it is the party who is in the right and is indemnified
for the expenses to which he has been unnecessarily put in the
proceedings, as well as the partys time and effort. However, in
arrest proceedings, the plaintiff maybe asked to give security for
costs, failing which, the vessel will be released. Cost is usually
determined summarily by the judge at the time of making the order.
Due to the commercial nature of maritime claims, most contractual
agreements, contain arbitration clauses thus, claims are referred to
arbitration. The Chartered Institute of Arbitrators, Nigeria Branch
is the specialist body involved with arbitration as they constitute a
panel of specialist maritime arbitrators. Also the Maritime
Arbitrators Association of Nigeria has specialised maritime
arbitrators.
6.2

Highlight any notable pros and cons related to Nigeria

that any potential party should bear in mind.

Cost is recoverable by the plaintiff upon conclusion or discontinuance

of a case, if he is able to obtain judgment in his favour. If the plaintiff
fails in the action, the defendant will be entitled to the costs of the
proceedings out of the security provided. Interest payable is
calculated based on contractual agreements between the parties and
interest paid into the courts interest yielding account is calculated
based on the banks rates and is paid in full.
Right of appeal is allowed with regard to final judgments. Leave to
appeal must be applied for at the Court of Appeal in interlocutory
judgments.
All evidence must be filed along with pleadings, only original or
certified true copies of documents are admissible, counsel must lay
foundation for admissibility of photocopies of documents.

7 Foreign Judgments and Awards

7.1

Summarise the key provisions and applicable procedures

affecting the recognition and enforcement of foreign
judgments.

The key provision applicable in the recognition and enforcement of

foreign judgments is the Foreign Judgements Reciprocal Enforcement
Act and the Reciprocal Enforcement of Judgements Act.

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Bloomfield Advocates & Solicitors

Summarise the key provisions and applicable procedures
affecting the recognition and enforcement of arbitration
awards.

Olabode Adegoke
Bloomfield Advocates & Solicitors
200 Muritala Mohammed Way
Yaba, Lagos
Nigeria

Order 52 Rules 16 and 17 of the Federal High Court Civil

Procedure Rules 2009 governs the recognition and enforcement of
arbitral awards.

Tel:
Fax:
Email:
URL:

8 Updates and Developments

8.1

Describe any other issues not considered above that may

be worthy of note, together with any current trends or
likely future developments that may be of interest.

Nigeria is a Cabotage port. Thus, in terms of the Coastal and Inland

Shipping (Cabotage) Act 2003, only Nigerian-built or wholly
owned Nigerian vessels are permitted to operate within Nigerias
coastal waters.

+234 1 738 8369

+234 1 496 0466
bode.adegoke@bloomfield-law.com
www.bloomfield-law.com

Nigeria

7.2

Nigeria

Bode is an associate at Bloomfield Advocates & Solicitors, prior

to joining Bloomfield, he worked in a leading commercial litigation
firm, his practice areas are Transport, Maritime and admiralty,
and litigation, as well as arbitration.
He represents corporate clients in maritime and admiralty legal
disputes, alternative dispute resolution sessions and extended
negotiations over contracts and trade agreements.
He is a member of the Nigerian Bar Association and holds a law
degree from the University of Ibadan.

Bloomfield is the foremost full service law firm in Nigeria. The firm provides regulatory compliance advisory services to both local
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