By virtue of the statutes that established them, certain government agencies in Nigeria are empowered to detain vessels operating within the country's territorial waters. This power of detention is distinct from the power to judicially arrest a ship in connection with a maritime claim. Detention is mostly used to enforce regulatory compliance and secure the payment of statutory dues at Nigeria's various ports. It is usually a last resort and offending ships may, in some cases, be given a timeframe in which they can rectify the default giving rise to the detention. In order to avoid vessel detention in Nigeria, it is necessary to identify the circumstances in which such a detention can arise.
The Nigerian Maritime Administration and Safety Agency (NIMASA) is empowered by the NIMASA Act(1) and the Merchant Shipping Act(2) to detain any vessel within Nigerian waters that:
- is unsafe;
- poses a security risk; or
- is a serious danger to human life with regard to the service for which the vessel is intended.
Unseaworthiness concerns not only the physical condition of a vessel, but also the size and competence of its crew. A ship may be considered to be unsafe or unseaworthy where, for example:
- there is a defect in any part of the vessel or its machinery or equipment;
- the vessel is being insufficiently ballasted or, in the case of a mechanically propelled vessel, has insufficient fuel on board for the intended voyage when proceeding at ordinary full speed;
- the vessel is undermanned;
- the vessel is overloaded or improperly loaded; or
- the vessel contravenes safety standards.
Offences committed by shipmaster or owner
Where a NIMASA officer has reason to believe that a shipmaster or owner has committed an offence under the NIMASA Act or the relevant regulations, he or she may detain the vessel.(3) Such offences include:
- wilful removal;
- destruction or damage to NIMASA property;
- evasion or neglect to pay a levy, charge or fee payable under the act; and
- non-compliance with a NIMASA instruction or the act.
Further, where a ship officer is implicated in an offence and the Board of Customs and Excise imposes a fine in lieu of forfeiture of the ship, the ship may be detained until the fine is paid.(4)
Trading in Nigerian waters contrary to Coastal and Inland Shipping (Cabotage) Act
The Coastal and Inland Shipping (Cabotage) Act empowers a NIMASA officer who has reasonable grounds to believe that a vessel has contravened the act to:
- stop and board the vessel;
- detain the vessel, its officers or both; and
- with a warrant, search the vessel and seize anything found in or on the vessel or its officers that the NIMASA officer has reasonable grounds to believe is evidence of contravention of the act.(5)
An example of such violation is where a vessel not wholly owned or manned by a Nigerian crew unlawfully engages in the domestic carriage of cargo and passengers within the country's coastal waters.
In addition, where there are reasonable grounds to believe that an offence has or is being committed under the Coastal and Inland Shipping (Cabotage) Act in respect of a vessel, a NIMASA officer may issue a detention order in respect of the vessel without a court order.(6)
The Nigerian Ports Authority is empowered by its corresponding regulations to collect certain rates and dues, including:
- harbour dues;
- facility charges;
- mooring dues;
- coastal charges; and
- wharfage charges.
Where a shipmaster in respect of whom any of these dues or rates is payable refuses or neglects to pay the dues or rates on demand, the Nigerian Ports Authority may arrest the ship or its tackle, apparel or furniture until they are paid.(7) Where the dues or rates remain unpaid after 14 days of such detention, the authority may sell the vessel and retain the amount of dues, rates or expenses owed from the proceeds.
Dispute as to weight or quantity of goods or ship's draught
The Nigerian Port Authority is empowered to enter any ship within the limits of any port in order to ascertain the dues or rates payable in respect of the ship. Where there is a disagreement between the authority and the shipmaster or owner with regard to the weight or quantity of goods or the ship's draught in respect of which harbour dues or rates are payable, the authority is empowered to detain the vessel until the goods or the ship's draught have been weighed or measured.(8)
Other instances where detention could arise include where there has been a failure to:
- reflect a change in a ship's name on its bow and stem;(9)
- produce a certificate of registration on demand;(10)
- obtain a certificate as to the master of a non-sea-going Nigerian ship's agreement with the crew;(11)
- provide a valid certificate of survey;(12)
- deliver up expired or cancelled certificates;(13)
- produce an accepted safety convention certificate in the case of the master of a Safety Convention ship;(14)
- comply with the rules regarding onboard lifesaving appliances;(15)
- to produce an international load line certificate in the case of an international load line ship;(16) and
- mark the load lines on a ship as specified in the load line certificate.(17)
In addition, a wreck may be detained until payment is made for its salvage.(18)
In general, vessel detention serves as a deterrent and is a means of ensuring compliance with port and safety regulations. Vessel owners should thus take necessary precautionary steps to comply with relevant extant laws and regulations when trading on Nigerian territorial 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
(2) Section 282, Merchant Shipping Act.
(4) Section 174, Customs and Excise Management Act.
(5) Section 31(1), Coastal and Inland Shipping (Cabotage) Act.
(7) Section 75, Nigerian Ports Authority Act.
(9) Section 14(6), NIMASA Act.
(18) Section 404(4)(c), ibid. A similar provision is contained in Section 35(2) of the Customs and Excise Management Act.
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