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23 March 2016
In Federal Republic of Nigeria v MT Asteris(1) the Federal High Court convicted a vessel and its crew of charges that included conspiracy to deal, dealing with, attempting to export and storing crude oil without lawful authority or a licence.
The MT Asteris was arrested by the Nigerian Navy after being sighted drifting within Nigeria's exclusive economic zone (EEZ). The master and crew contended that they were on sea trial from Cotonou, Benin Republic and had no intention of entering Nigeria or carrying out economic activity within the EEZ. They further contended that the products found on board were from a previous ship-to-ship transfer operation offshore Cotonou. The crew admitted that they had no documents to prove the source of the cargo. The defence claimed innocent passage and submitted that a vessel that has no business in a country is not duty bound to obtain approval from that country. However, Lloyds List data showed that the vessel had been trading in Nigeria.
In convicting the vessel and crew, the court relied on the fact that the ship-to-ship transfer claim was neither proven nor supported by International Maritime Organisation or Lloyds List data. Further, the accused had 3,423.097 metric tons of petroleum products in their possession without documents confirming the origin. The court held that conspiracy does not require direct proof; rather, it can be inferred from the circumstances, which in this case were consistent with the offence.
On the count of dealing crude oil without the appropriate licence, the court relied on the vessel's ports of call logs in determining that it had called at the key Nigerian locations of Lagos, Warri and Escravos. The court held that the mere act of making those calls without a coastal trading licence in Nigeria, and the fact that the vessel had 3,423,097 metric tons of petroleum products without documentation, demonstrated that the goods were illegally sourced in Nigeria. Further, the court relied on Section 1(17) of the Miscellaneous Offences Act, which states that:
"Any person who without lawful authority or an appropriate license:
1. Imports, exports, sells, offers for sale, distributes or otherwise deals with any crude oil, petroleum or petroleum product in Nigeria;
2. Does any act for which a license is required under the Petroleum Act
shall be guilty of an offence and liable on conviction to imprisonment for life, and in addition any vehicle, vessel, aircraft or other conveyance used in connection therewith shall be forfeited to the Federal Government."
Based on the above provisions and the failure of the accused to provide a licence, the court held them to be acting without lawful authority. The court adopted similar reasons to convict the accused of the offences of exporting and storing crude oil without valid authority.
The court overlooked the defence's arguments on innocent passage within the EEZ. Under the Nigerian EEZ Act, jurisdiction over criminal matters in the EEZ appears to be limited to acts undertaken on, under or above installations within the designated area or within 200 metres of such installation. Further, the court did not appear to actively address the extent of criminal jurisdiction which the state can be allowed to assume under the United Nations Law of the Sea. The case demonstrates the court's strict views relating to vessels' compliance with documentation requirements in Nigerian waters. Thus, parties should be circumspect in ensuring that all the necessary documentation is up to date.
For further information on this topic please contact Emeka Akabogu at Akabogu & Associates by telephone (+234 1460 55550) or email (firstname.lastname@example.org). The Akabogu & Associates website can be accessed at www.akabogulaw.com.
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