Inter-agency conflict
Receiver of Wrecks' powers
Comment
Wrecks pose a real danger to navigational safety and the marine environment and their expeditious removal, control and management is therefore a key concern. The issue of wreck control in Nigeria has been the subject of an increasingly fierce conflict between the Nigerian Inland Waterways Authority (NIWA), the Nigerian Maritime Administration and Safety Agency (NIMASA) and the Nigerian Ports Authority (NPA).
Notably, the abovementioned agencies are all accorded a measure of control over wrecks by their establishing acts. NIWA's power over wrecks derives from Section 9(d) of the NIWA Act,(1) which vests in the authority the power to "survey, remove, and receive derelicts, wrecks and other obstructions from inland waterways". Conversely, the NPA Act includes no express provisions relating to the management of shipwrecks and their removal.(2) That said, Section 7(i) of the act empowers the authority to "control pollution arising from oil or any other substance from ships using the port limits or their approaches". In carrying out this function, the NPA would be acting well within its statutory mandate to deal with hazardous wrecks found anywhere within Nigeria's port limits. The NPA's power over all areas of Nigeria's ports encompasses:
- ocean beaches within 100 metres of the high-water level;
- the waterways, creeks and swampland below the highest astronomical tide level; and
- all beacons, moles, piers, jetties, slipways, quays and other works which extend beyond the natural line of the high-water level.(3)
Wrecks found within the above areas may be said to fall within the NPA's statutory control.
The NIMASA's power over wrecks is primarily derived from Section 22(1)(n) of the NIMASA Act, which simply provides that "the functions of the Authority shall be to: (n) receive and remove wrecks".(4) Unlike the NIWA Act and the NPA Act, which restrict the authorities' powers over wrecks to inland waterways and port limits, respectively, the power given to the NIMASA is not restricted to particular areas. Thus, the agency's regulatory control extends over Nigeria's:
- exclusive economic zone;
- territorial and inland seas;
- inland waterways; and
- ports.(5)
The direct consequence of the current framework is that in exercising its statutory mandate over wrecks, the NIMASA is destined to come into conflict with NIWA and the NPA, which both have their own respective mandate. It is likely this quagmire that has led the NIMASA to assert its claim to the status of official Receiver of Wrecks with overriding control over the management and removal of wrecks located anywhere within Nigerian territorial waters.
Section 362 of the Merchant Shipping Act creates the offices of the Receiver and the Assistant Receiver of Wrecks, to be appointed by the minister with the power to handle wrecks found in Nigerian waters. The Receiver of Wrecks' power to remove wrecks is rather extensive and encompasses wrecks found:
- in any port, navigable river or tidal water within Nigeria; or
- in or near any approach to any port, navigable river or tidal water.(6)
In exercising its power of wreck removal, the act empowers the Receiver of Wrecks to:
- take possession of and raise, remove or destroy all or any part of a vessel;
- light or buoy any vessel or part thereof until the vessel's raising, removal or destruction; and
- sell any vessel or part thereof once the vessel has been raised or removed.
In addition to the power to remove wrecks, the receiver of wrecks can also:
- determine whether a wreck constitutes a hazard;
- mark hazardous wrecks; and
- set the deadline and approve the conditions for wreck removal operations, where the shipowner elects to remove the wreck.
Where a vessel is wrecked, stranded or in distress at any place on or near the Nigerian coast or any tidal water within Nigeria, the receiver of wrecks is empowered to take command of all persons there and assign such duties and give such directions to each person as it thinks fit for the preservation of the vessel and the persons and cargo on board.(7)
Further, where a party who is not the wreck owner finds or takes possession of any wreck within Nigeria – or finds or takes possession of any wreck outside those limits and brings it within those limits – such party must deliver the wreck to the Receiver of Wrecks. Failure to do so, without reasonable cause, constitutes an offence punishable by fine and forfeiture.(8)
Finally, it is a punishable offence to perform or cause to be performed any salvage or breaking up operations concerning any vessel or any wrecked, submerged, sunken or stranded vessel lying within Nigeria without prior written permission from the Receiver of Wrecks. This offence is punishable with a fine and imprisonment.(9)
The above provisions aim to effectively vest absolute control over all wrecks in Nigeria in the Receiver of Wrecks, notwithstanding the powers of any other agency.
In creating the offices of the Receiver and Assistant Receiver of Wrecks, neither Section 362 nor any other section of the Merchant Shipping Act identifies which government agency is the Receiver of Wrecks referred to therein. Section 2(1) of the act provides that "the agency of Government established to be responsible for Maritime Safety Administration and Security shall be the implementing agency for this Act". This provision has occasionally been relied on to accord the NIMASA the status of Receiver of Wrecks. Fortunately, Section 362 leaves no room for speculation, as it clearly sets out the method of appointing the receiver. In the absence of such appointment, any claim to the office of receiver is bogus at best. Even if the NIMASA was duly appointed as the official Receiver of Wrecks in line with the Merchant Shipping Act, its power over wrecks would still be subject to those of the NPA in certain respects. In this regard, Section 381(1) of the act specifically makes the Receiver of Wrecks' power in relation to wreck removal "subject to the provisions of any other enactment or law relating to ports". This provision accords precedence to the powers of the NPA under its establishing act in relation to the removal of wrecks within the port limits.
In view of the above provisions and unless the minister appoints the NIMASA as the official Receiver of Wrecks or an amendment of the Merchant Shipping Act removes the need for such appointment and categorically names the agency as receiver, the NIMASA's exercise of the functions of receiver appear to be extra-legal and questionable. Even if the agency's position was regularised, it is doubtful that this would finally put to bed the drawn-out inter-agency controversy surrounding the management of shipwrecks in Nigerian waters.
For further information on this topic please contact Enare Erim at Akabogu & Associates by telephone (+234 1460 55550)or email ([email protected]). The Akabogu & Associates website can be accessed at www.akabogulaw.com.
Endnotes
(6) Section 381, Merchant Shipping Act.
(7) Section 372, Merchant Shipping Act.
