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11 February 2015
The Nigerian Maritime Administration and Safety Agency (NIMASA) recently introduced a raft of regulations to police the marine environment. The regulations are drawn from provisions in various international conventions to which Nigeria is a party, but which had not previously been put into effect in the country. With their issuance, the regulations have established a robust regulatory regime for the marine environment, with strong compliance responsibilities for those affected, particularly in the maritime sector.
The stand-out regulations from the point of view of industry operators are the Marine Environment (Sea Protection Levy) Regulations, which impose a levy on all commercially operating vessels and oil installations in Nigerian waters above 100 gross tons. The levy is payable on an annual or per-call basis, depending on the nationality of the ship; while the rates payable depend on whether the ship is carrying oil in bulk as cargo and its storage capacity. The basis of the levy is the profile of the affected vessels as potential polluters.
The regulations with perhaps the greatest potential impact are the Merchant Shipping (Liability and Compensation) Regulations. Victims of oil pollution have traditionally found it difficult to bring successful claims, due to the technical liability limitations in favour of shipowners. Claim processes have been largely structured by the traditional law of tort, with claimants having the onerous task of proving shipowner negligence in addition to outright exclusions in favour of shipowners.
The new regulations give effect to the Civil Liability Convention, providing greater clarity on the rights and obligations which exist between shipowner and pollution victim. It imposes liability for oil pollution damage squarely on the registered owner of the ship from which the oil escapes or is discharged. This liability is strict in the sense that the claimant need demonstrate only that it has suffered damage as a result of the spill; there is no need to prove that the shipowner was at fault. This would seem to facilitate prompt, equitable compensation payments to victims of oil pollution damage. Together with the Merchant Shipping (Prevention of Oil Pollution) Regulations, liability coverage is now effectively extended over ships which discharge oil. Liability actions are now likely to be easier to bring and claim upon in relation to oil pollution.
The other regulations introduced by NIMASA cover management of ship-generated waste, oil pollution preparedness and response, ballast water management, anti-fouling systems and sea dumping. Annexes I to V of the International Convention on Prevention of Pollution from Ships (MARPOL 73/78) have also been codified in the form of regulations on the prevention of pollution by oil, noxious liquids, packaged harmful substances, rubbish and sewage.
Although these regulations reflect international standards as set out by the International Maritime Organisation (IMO), their codification implies that NIMASA can now be more effective under its flag and port state control mandates. Where there were previously no penalties for breach of relevant IMO conventions, the regulations have introduced punishments in the form of fines and detention, to which offending ships will now be subject. NIMASA is also set for increased inspections and boarding of ships. While most of the regulations are extensive and ponderous, compliance should be the watchword. As always, the devil is in the detail.
For further information on this topic please contact Emeka Akabogu at Akabogu & Associates by telephone (+23 41 790 5831) or email (firstname.lastname@example.org). The Akabogu & Associates website can be accessed at www.akabogulaw.com.
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