Maritime transport and international seaborne trade

CHAPTER ONE

GENERAL INTRODUCTION

1.1        Background to the Study

The Nigerian Maritime Administration and Safety Agency (NIMASA) and National Inland Waterways Authority (NIWA) are regulatory authorities that have a duty to ensure that maritime transport activities are conducted in an economically safe manner, without placing life and health at risk and without compromising the economic impact of the maritime sector to the Nigerian economy and its people. In addition, public regulation of maritime transport has gradually taken on a new dimension. While it is important to avoid accidents on board vessels, as well as groundings and collisions, importance is also attached to ensuring that damage is not caused to the environment, through ship – source pollution, dumping of waste, discharge of oil from cargo or bunker tanks.  Although, ships still enjoy freedom of navigation in waters where the regime applies, they do not have any license for instance to pollute^[1] .

The functions of the public institutions mentioned above should be the protection of the public interest, while that of the private entities as against public entities involved in some form of regulation such as classification societies should primarily be the protection of the physical values associated with shipping.^[2] In practice, however, these two functions tend to overlap.^[3] It is advantageous for both the crew and the hull insurer if, for example, fire hazards on board a ship are reduced or eliminated. The dividing line between the public and private functions is also blurred by the classification societies‟ undertaking or performance of activities which really fall within the public institutions‟ responsibility.

First, it must be stated that “Maritime Transport, and the law and policy within which it operates, must be seen as very similar to other international undertakings operating on a transnational scale”.^[4] Hence, the shipping industry is controlled by a web of national and international regulations and practices. Overall, these regulations and practices can be classified under two broad headings^[5] : (i) regulations related to commercial operations and practices and (ii) regulations related to safety and the environment.

With regard to regulations related to commercial operations and practices, the analysis of the legal framework, which is the subject matter of this research is centered on the provisions of the following legal instruments:  The Merchant Shipping Act^[6] , The National Shipping Policy

Act^[7] , Coastal and Inland Shipping (Cabotage) Act^[8] , the Nigeria Maritime Administration and Safety Agency Act^[9] , Nigeria Shippers Council Act^[10] , Nigeria Ports Authority Act,^[11]   and the Council for the Regulation of Freight Forwarders Act^[12] . These legislations tend to regulate maritime commercial services and operations within the maritime transport sector of the Nigerian economy. The institutions created by these legislations are the primary enforcers of the regulatory provisions of the Acts. The provisions of these legal instruments take into consideration the commitment of Nigeria to conventions which Nigeria is a party such as those of United Nations Conference on Trade and Development (UNCTAD) and World Trade Organization (WTO). With regard to regulations related to safety and environment, the legal framework considered in this research includes: Merchant Shipping (Safe Manning, Hours of work and Watch keeping) Regulations S I, 11 of 2011 and (Training and Certification of Seafarers) Regulations SI, 12 of 2001 which domesticated the STCW Convention in Nigeria under the powers encapsulated in section 408 of the Merchant International Convention for the Safety of Life at Sea (Ratification and Enforcement) Act, 2004^[13] . By virtue of the International Convention for the Prevention of Pollution from Ships 1973 and 1978 Protocols (Ratification and Enforcement) Act, 2007^[14] , the International Convention for the Prevention of Pollution from Ships 1973 and 1978 – MARPOL 73/78 became domesticated and applicable to Nigeria. The analysis of the legal framework for regulating maritime transportation in Nigeria with respect to regulations related to safety and environment will, therefore, be centered on the following Conventions:  International Convention for Safety of Life at Sea (SOLAS)^[15] , Standards of

Training, Certification and Watch keeping (STCW)^[16] , Convention for the International

Regulation of Collisions at Sea (COLREG)¹⁷ and International Convention for the Prevention of Pollution from Ships73/78 (MARPOL)¹⁸.

Maritime Transport law has always been categorized into two areas: Private and public or regulatory. The private aspect of maritime law deals mainly with rights, liability and compensation, which is the liability or private law regime of maritime transport law. The regulatory regime tries to control or regulate how maritime transport is conducted to ensure safety of lives and property and to ensure that maritime transport is done in a safest and clean marine environment. If maritime transportation is not regulated, there will be pollution of the marine environment which in itself will pose a threat to the safety of persons and merchandise.

Regulatory maritime law deals mainly with regulation regarding the training and competence of seafarers and control of ship source pollution to ensure safety of life at sea. SOLAS, STCW, and MARPOL Conventions are, therefore, interconnected and they are three amongst the main IMO conventions. It should be noted that the branch of Maritime Law known as regulatory maritime law which is the subject of this research is a convention based subject and the task of seeing to the formulation, adoption and enforcement of these standards setting conventions and regulations falls on the shoulders of International Maritime Organization (IMO). NIMASA as an institution or agency of the Federal Republic of Nigeria acts or functions as IMO designated Authority in

Nigeria for the regulation and enforcement of IMO domesticated Conventions and Regulations.

IMO audit delegation audits the affairs of the Nigeria Maritime Administration and Safety

Agency (NIMASA).  One of the mandates of NIMASA under section 22, Part VI of NIMASA

Act , 2007^[17] is to “ establish the procedure for the implementation of conventions of International Maritime Organization and International Labour Organization and other international conventions to which the Federal Republic of Nigeria is a party on maritime safety and security, maritime labour, commercial shipping and for the implementation of codes, resolutions and circulars arising therefrom” and to “ establish maritime training and safety standards and to control and prevent marine pollution”. The national framework for the regulation of maritime transport depends largely on the international framework. Therefore, knowledge of the international element in maritime transportation of persons and merchandise is, therefore, indispensable.

Maritime transport is inherently international in character and vessels on most voyages must operate under the regulatory requirements of many states. The rules and regulations are

therefore made by the States, with the International Maritime Organization(IMO) providing the platform and the machinery. Without this platform, the international adoption of these regulations would be extremely difficult and perhaps even impossible. IMO is, therefore, a specialized agency of the United Nations. It has a „regulatory function‟ in a well-defined area of activity but its work has significant implications in many areas of interest to the United Nations as a whole. The Organization provides a mechanism through which Governments are enabled to co-ordinate their procedures for the regulation of shipping and related maritime activities.

As stated in the preceding paragraphs, the shipping industry is controlled by a web of national and international regulations and practices; these regulations and practices can be classified, following the approach of Organization for Economic Corporation and Development,^[18] under two broad headings:

• Regulation related to commercial operations and practices
• Regulations related to the rights and obligations of states and to safety and environmental regulations.

Affected persons and entities who are subject to these regulatory regimes in Nigeria are mostly International Oil Companies and ship owners that own, hire out their vessels. Since regulation in shipping inherently proceeds from the international realm, some of the affected entities may at some point desire a higher/global standard based on certain interest they may possess. Almost all the International Oil Companies operating in Nigeria are Ship-owners that operate globally and are involved in the transportation of oil and oily products and can wield tremendous influence over regulatory regime and institutional framework that govern their maritime transport operations. The same applies to Concessionaires of Port who wield considerable amount of influence over their operations. These accentuate the need for adequate regulatory regime and institutional framework in Nigeria for the regulation of maritime transportation of persons and merchandise.

For instance at about 1:00am on 19^th October, 2015, two oil vessels MT Tank and MT Elixir collided along the Bonga Oil Field FPSO, offshore Warri, Delta State, Nigeria where nine Nigeria crew members sank and their bodies have not been found till date. In the accident, one dead body was recovered while the hull of the Small Vessel, MT Tank sank with nine crew members.^[19] Through the detailed report of the investigation into the accident has not been made public, marine Accident Investigations have all pointed out to one likely cause which was fatigue.³⁴ . Fatigue is an issue dealt with under the International Convention on Standard of Training, Certification and Watching-Keeping (STCW) 1978^[20] and also under the International Maritime Labour Convention of 2006. The above underscores the need for better regulation through sustainable legal and institutional framework.

1.2        Statement of the Research Problem

• With regard to regulations related to commercial maritime operations and services, the laws appear not to be well streamlined, while some laws conflict with each other. Some of the provisions are not up to date, in terms of keeping up with the trends of modern global shipping and maritime transport and are therefore unsustainable especially in terms of protecting Nigeria‟s economic and shipping interest. The laws include: The Merchant Shipping Act^[21] , The

National Shipping Policy Act^[22] , Coastal and Inland Shipping (Cabotage) Act ^[23] Nigeria Shippers Council Act^[24] , Nigeria Ports Authority Act.^[25] The principal legislation governing regulation of maritime commercial operations and services in Nigeria is the Merchant Shipping Act, 2007. The provisions of the Act are based on the English Merchant Shipping Act of 1855 which has been reviewed in England severally giving rise to English Merchant Shipping Act of 1995. The provision of the Nigeria Merchant Shipping Act 2007 requires review especially in the area of Ship Registry, Ship Registration, ownership of Nigeria Flag Vessel, Security Interest in Vessels registered in Nigeria amongst other critical provisions. The Merchant Shipping Act of Nigeria can no longer meet the demands of contemporary and sustainable shipping and it cannot satisfy the need for a viable Nigeria Flag state registry.

In addition, after the concession of ports in Nigeria in 2006, there is not yet a clear maritime regulatory authority for Nigerian ports not to talk about regulation in this regard. There is no enabling Act for the concession of Nigeria ports.

The Nigeria Cabotage Act created difficulties in its implementation by the inclusion of certain provisions which undermine regulation in this area of the maritime transport sector.

• With respect to regulations related to safety and the marine environment, the institutional framework is weak in terms of capacity and competence. The relaxed and discriminate application or enforcement of the laws related to safety and the marine environment has hampered proper regulation in this regard. Also, some institutions regulating maritime transport in Nigeria have overlapping regulatory functions and responsibilities arising from the enabling legislations.

1.3        Aim and Objectives

The aim of this study is to analyze the regulatory maritimelawregimeinNigeriaandtheinternational seaborne trade for the purpose of addressing the following objectives:

• To evaluate the adequacy of Nigerian maritime regulatory law regime with regard to commercial maritime operations.
• To evaluate the adequacy of Nigerian maritime regulatory law regime related to safety and the maritime environment.
• To determine the extent to which the institutional framework or regulatory bodies function with or under Nigerian regulatory law regime.

 

 

1.4        Scope and Limitation of the Research

There are two main aspects of maritime law in relation to maritime transportation of merchants and persons in Nigeria – regulatory and private maritime law. This research is basically about the maritime regulatory regime and its institutional framework relating to maritime transportation operation in Nigeria with a background on the international regulatory regime of maritime transport. The legal and institutional analysis made in this research relates only to the following two issues:

• Regulations related to commercial operations and practices.
• Regulations related to safety and the environmental.

Although the liability, compensation and remedial regime resulting from maritime transport operations as well as protection of the marine environment generally may have been alluded to, but have not been considered and analyzed in this research.

1.5       Research Methodology

The main research methodology adopted in this research is the doctrinal research methodology. The sources of materials for this research are primary and secondary sources. Primary source provides direct firsthand evidence about an event, object, or works. Primary sources provide the original materials on which other research is based.

In the context of this research, primary sources include official and unofficial records of organizations and of government agencies such as Maritime Conventions, reports, Bills, Maritime statutes and decided cases. Reliance was placed on documents from the IMO, World Bank, UNCTAD, NIMASA, OECD and similar documents in making the analysis. Further reliance was also placed on the provisions of Nigeria Merchant Shipping Act 2007, Nigeria Maritime Administration and Safety Agency Act 2007, Nigeria Port authority Act 2004, Nigeria Cabotage Act 2003 and other related legislations.

Secondary sources on the other hand describe, discuss, interpret, comment on, analyzes, evaluate and summarize primary sources. Secondary sources include books, articles from

Journals and Newspapers, Treatise and Textbooks.

1.6       Literature Review

Generally, there are few literatures related to the subject matter of this research both in case law and scholarly writings relating directly to Nigerian maritime regulatory law. There are also literatures related to the general field of study and these references or literatures can give a good background as to what is considered in this research.

The goals of regulatory law are different from those of private law. Regulatory Conventions such as Safety of Life at Sea (SOLAS), International Convention on the Prevention of Pollution from Ships 1973/1978 (MARPOL), Standards of Training, Certification and Watch- Keeping (STCW) and International Regulation for Preventing Collisions at Sea (COLREG) and their related instruments regulate maritime activities for the protection of wider public interest. For this reason, they are relatively more universal in scope and acceptance, which is evident from the number of state parties. When it comes to private law conventions, national and private interests with economic and other implications are more at stake; with the result that international rulemaking is fragmented.

Existing literature on maritime transportation in Nigeria focuses on other matters such as cabotage (which is narrower in scope), other than regulatory maritime law, (which is broader) and is the subject matter of this research, which has few research materials. This research is broader in scope in the sense that it focuses on international conventions and national laws from which regulatory agencies derive their powers to function in Nigeria. Furthermore, the research focuses on laws that are meant to facilitate effective and efficient commercial maritime operations as well as ensure the safety of the marine environment, since they greatly impact on each other.

Maritime law has vigorously been described and defined in ways that reflect subjective perspectives as well as semantics^[26] . One of such perspectives is that “maritime law provides the legal framework for maritime transport”^[27] . Another is that maritime law comprises a “body of legal rules and concepts concerning the business of carrying goods and passengers by water”^[28] . Both are contracted in scope but the first is more broad-spectrum and could be construed as embracing maritime matters which extend beyond the purely private sphere of maritime business and commerce into areas of regulatory regime.

Professor P.K. Murkherjee^[29] has observed that the expression “admiralty law”, used in many countries with Anglo – Saxon legal traditions adds to the terminology debate. Admiralty law refers to the body of law including procedural rules developed by the English Courts of Admiralty in their exercise of jurisdiction over matters pertaining to the sea. This jurisdiction was distinctively different from that of the common law courts. Admiralty law thus originally encompassed those subject matters over which the admiralty courts possessed inherent jurisdiction imbued through a process of evolution. Subsequently, these subject matters, which bore a maritime character, were codified by statutes. Nigeria

Admiralty and Civil Jurisdiction Act is a ready example.

The term shipping law according Professor P.K. Murkherjee is used to describe “the law relating to ships and shipping”^[30] . In his view, it is mostly used interchangeably with the term maritime law and encompasses all aspects of regulation of ships, shipping and maritime transportation. It is “both private and regulatory in scope and includes commercial maritime law, Maritime safety, pollution prevention and  labour law as well as admiralty law in common law jurisdictions”^[31] .

From the above, it is pertinent to state that professor Mukherjee‟s view relates absolutely to regulatory or public maritime law, while the private aspect of maritime law has to do with claims in court for damages arising from shipping operations or activities. It may also bother on regulatory aspect, depending on the facts.

Admiralty law frequently signifies maritime law relating to “wet” matters, that is, those involving ships when they are at sea, as distinguished from “dry” matters, that is, those matters involving ships but pertaining only to commercial aspects that are essentially land-based. In general terms “dry” shipping means cargo claims against sea carriers and disputes under charter parties. The law involved is primarily contractual.

“Wet” shipping refers to the types of claims that are usually pertaining to maritime disasters, such as collisions and statutory liability of ship-owners for pollution. The law involved is far less geared towards contract law. There are three matters that underpin both “dry” and “wet” shipping. These are jurisdiction, security and global limitation of claims on tonnage basis^[32] . Jurisdiction and security, in particular, have impact on every “dry” and “wet” dispute in practice. There is always an interaction between “dry‟ and

“wet” matters in practice^[33] .

While maritime law consists of two broad elements, dividing it into two neat compartments and labeling them “regulatory” and “private”, is rather an

oversimplification since “all classification of law into subject or topic areas is somewhat arbitrary, as it can be accomplished in different ways. Nonetheless tradition plays an important part. This is certainly the case with the field of maritime law, which has become established”^[34] .

The term maritime law normally “refers to the legal rules applicable to shipping, including the rules relating to admiralty and marine insurance (although the latter is often considered to be a separate subject area)”^[35] . These are wide ranging, however, that they could also include the ordinary rules of contract and its interpretation. To avoid this, it is preferable to define maritime law as “the set of legal rules that are unique to shipping”. However, the actual resolution of maritime disputes often requires considerable knowledge of disciplines such as contract law and the law of torts.

Accordingly, the shipping industry is involved in many matters of general law and non- maritime legal transactions which are not part of the lex maritime.^[36] It is well acknowledged that many aspects of commercial maritime law are in fact -derived from the lex mercatoria^[37] . The division may be traceable to perspectives that are politically anchored.

 

Accordingly, Professor Gold writes:

… the new law of the sea has in the past decade addressed itself to almost all areas of ocean use except the one that since before the dawn of history, has been preeminent – the use of the ocean as a means to transport people and their goods from place to place on this planet, so much more of which is water than land. Marine transport has been discussed in an almost abstract manner, as if it did not really fit or belong within the public domain but needed to be confined to the more “private” region of international commerce, which was considered to be outside the scope of the law of the sea.^[38]

 

However, Professor Sanbom in his writing had this to say in 1930 –

The words “maritime law,” as commonly used today, denotes that part of the whole law which deals chiefly with the legal relations arising from the use of ships. But in the earlier period, of which this work treats, the law maritime had a considerably wider scope. It dealt not merely with Admiralty law, but also with the primitive ancestors of some branches of our modern commercial law, dealt, too, with the germs of that public law which we today style international law.

 

Professor Tetley aptly noted that “Maritime law is not a branch of law, like Company law or Matrimonial law or Tax law, but a slice of all branches of law.  Maritime law in other words, cuts through the whole sphere of law”^[39] . Certainly, there are numerous subject matters which fall within the scope of maritime law not all of which are compatible with categorization in terms of “regulatory” or “private”.

^[40] Thus, the learned authors of Scandinavian Maritime Law wrote in 2008:

Maritime law encompasses private law rules (typically rules governing charter parties and bill of lading), as well as public law rules (for example, ship nationality requirements and control of seaworthiness). Even the rules of international law are to some extent relevant (for example, rules regarding the right of innocent passage through territorial waters and the immunity of state-owned ships from arrest in foreign ports)

55.

 

Maritime law consists of numerous facets. It is a body of law that is at once international in scope, is perpetually in motion and has a component corresponding to virtually every branch of law have conceivable on land simply because a shipboard community is a microcosm of society ashore ^[41] . The antiquity of maritime law and its doctrines and principles that have persistently withstood the test of time characterize its resilience. Professor Tetley^[42] authoritatively maintained that maritime law is a complete system of law, both public and private, substantive and procedural, natural and international, with its own courts and jurisdiction, which goes back to Rhodian law of 800 B. C. and predates both the civil and common laws. Its more modern origins were civilian in nature, as first seen in the Roles of Oleron of circa 1190 A.D.  Maritime law was subsequently greatly influenced and formed by the English Admiralty court and then later by the Common law itself.  He contends that the fact that maritime is a complete legal system can be seen from its components parts. For centuries maritime law has had its own law of contract – of sale (of ship), of service (towage), of lease (chartering), of carriage (of goods by sea), of insurance (marine insurance being the precursor of insurance ashore) of agency (ship chandler), pledge (bottomry and respondentia), of hire (of master and seamen), of compensation for sickness and personal injury (maintenance and cure) and risk distribution (general average). It is and has been a national and international law (probably the first private international law). It also has had its own public and public international law. Maritime law is composed of two main parts – national maritime statutes and international maritime conventions, on the one hand, and the general maritime law (lex maritime), on the other. ^[43] The general maritime law has evolved from various maritime codes, including Rhodian Law (circa 800 B.C), Roman Law, the Roles of oleron (circa 1190), the ordinance de la marine (1681), all of which were relied on in Doctors‟ Commons, the English Admiralty court, and the maritime courts of Europe. This lex maritime, part of lex mercatoriaor “law merchant” as it was usually called in England, was the general law applicable in all communities of western Europe until the fifteenth century , when the gradual emergence of nation states caused national differences to begin creeping into what had been a virtually pan- European maritime law system. ⁵⁹

Today‟s general maritime law consists of the common  forms, terms, rules, standards and practices of shipping industry – standard form bill of lading, charter parties, marine insurance policies and sales contracts are good examples of common forms and accepted meanings of the terms, as well as the York Antwerp Rules on general average, and uniform Customs and practice for Documentary credits. Much of this contemporary lex maritime is to be found in the maritime arbitral awards rendered by arbitral tribunals around the world by a host of institutional and ad hoc arbitral bodies^[44] .

Professor P.K. Murkherjee has identified maritime subjects generally to include –

Acquisition and Registration of Ships, Proprietary Interests in Ships, Safe Manning of Ships,

Seafarers Qualifications and Maritime Labour, Maritime Safety, Wreck and Salvage, Towage,

Pilotage, Carriage of Passengers, Maritime Claims and Arrest of Ships, Limitation and Division of Liability, Carriage of Goods by Sea, Marine Insurance, Marine Pollution and

Maritime Security. According to the Professor:

these subject matters encompass regulatory and private law aspects as well as hybrid areas of maritime law. It will be observed that the non-private law subject matters inevitably flow from corresponding framework provisions in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), which is considered to be largely a codification of the customary international law of the sea and as such, is often referred to as the constitution of the oceans^[45]

 

It can therefore be concluded that shipping is, by its nature, international and its vehicle remains the sea. National or regional approaches, therefore, will not provide adequate solutions. By its nature, maritime law is international and for this reason international law is of great importance. The law of the sea for instance is a multifaceted discipline involving not only narrow shipping interests, but also fisheries, petroleum and natural resource issues.

Maritime Law may therefore essentially be described as having two principal compartments – Private Shipping Law and Maritime Regulatory Regime.

The statutory provisions related to private shipping law in Nigeria as against regulatory law of shipping is essentially of an English heritage and can be found in the Nigeria Merchant

Shipping Act, 2007. The Provisions of this Act is not materially different from the English Merchant Shipping Act, 1995. However, the procedural mechanism for reaching the substantive private maritime law and in some instances the substantive law itself has enjoyed less uniformity globally. The maritime jurisdictions of the world can generally be categorised into three namely: common law maritime tradition, the mixed jurisdictions and civil law maritime jurisdictions.  In this connection, Igwe, wrote in 2009:

There is a great divide in International Maritime Law. This dichotomy has a further spiral effect on the various maritime jurisdictions in terms of procedure, substantive law and practical considerations with respect to enforcement of ship mortgage. Whereas efforts have been made on an international basis with evidence of three international conventions on Maritime Liens and Mortgages in 1926, 1967, and 1993 respectively, no serious consensus has resulted there from.

Rather, in reality, many of the world‟s leading maritime nations, including the United States and United Kingdom, have refused to ratify any of these conventions.^[46]

 

This research is basically about maritime regulatory regime in Nigeria which has attracted fewer and less sufficient rigorous analysis and literatures. In this context, Igbokwe^[47] has observed that “UNCLOS and other treaties impose some duties on Nigeria (as a Coastal State and Flag State) and on its ports (as a port State) in respect of the pollution of the marine environment from…vessels activities and the disposition of shipboard waste, oil and garbage through reception facilities and under Article 192 of UNCLOS.” The learned author went on to state that in any assessment of the existing national legislations and regulations relating to pollution prevention in Nigeria will show that Nigeria is still lagging behind in the adoption of adequate laws and regulations to prevent, reduce and control the pollution of the marine environment.

Igbokwe‟s paper is very restricted in view of the subject matter of this research. The paper dwelt only on the analysis of regulatory regime of ship source pollution in Nigeria. It did not include an analysis of the regulatory regime related to maritime commercial operations and services. On the contrary, Igwe^[48] has described somewhat briefly the public law regulation of ship- source marine pollution in Nigeria:

There are now rules and regulations in Nigeria designed to protect the marine environment from ship – source pollution. Firstly, there are rules aimed at avoiding incidents which may cause pollution. Secondly, there are rules on dealing with such incidents, so that pollution is avoided, or at least minimized. Finally, there are rules which ensure that liability can be ascertained and compensation paid for damage, loss and expenses incurred as a result of pollution or threatened pollution.

 

He further contended that because stability and expertise are important for ship finance, ship owners take into consideration the experience, capacity and the service representation of a flag maritime administration and that “it was in contemplation of this fact that the Nigerian Maritime Administration and Safety Agency Act of 2007 provides for appointment of persons with relevant experience and capacity applicable to maritime administration and affairs into the board of the Agency”⁶⁵. His analysis is not vigorous and intense and it centered only on an aspect of the institutional framework for regulation of maritime transport and marine pollution which is also only an aspect of the issues regulated in maritime transportation in Nigeria.

Iroegbu^[49] has stated that in Nigeria, the maritime industry is dominated and occupied by foreigners; Nigerians own less than 20% of the market share in the industry and that even most of the shipping services which constitute about 30% of the crude oil transaction are performed by foreigners and huge amount of profits are being repatriated to their home countries. This makes the Nigerian economy dependent on the foreign economy and jobs that would have been created for Nigerians are performed by foreigners. He further argues that the regulatory agencies that formulate laws and policies in the maritime industry do not understand the operations in the industry, and thus tend to disregard the necessary conditions needed to ensure these policies attain their set out aims and objectives. As a result, most of the huge contracts in the maritime sector are being awarded to foreign firms due to “incompetency” of indigenous firms leading to huge capital outflow. Furthermore, Iroegbu points out the pitfalls, defects and weaknesses of the cabotage regime in Nigeria. For instance, the conditions prescribed for obtaining waiver by the foreign firms are so simplistic that it is likely that more foreign ships will be granted license and waivers to engage in cabotage in Nigeria. This is because there is presently insufficient Nigerian fleet to cater for the Nigeria cabotage shipping. Thus, with the inclusion of waiver, the bulk of the responsibilities of the indigenous vessels holders have been shifted to foreigners making the

Cabotage Act to be ineffective and at the same time defeats the objective or the purpose the Act. Nigerian vessels that would have been employed in carrying these cargoes have to suffer at the expense of these foreign vessels resulting in foreign domination of the maritime industry.

Airahuobhor^[50] has stated that for a vibrant and truly indigenous Cabotage industry, government must aggressively move towards a strict cabotage policy, like the Jones Act of 1949, where the waiver clause will no longer be relevant; the Cabotage Vessel Financing Fund (CVFF) should be enriched through direct budgetary allocation and from excess crude account; Government should drive the wheel to revitalize and make the indigenous ship yard technically and financially virile as well as ensure local patronage; and finally, government should provide an enabling environment for citizens to ensure orderly development of national fleet without necessarily adopting a rigid policy that limits international trade potentials .

Ndikom^[51] expressed the view that the waiver aspect of the Act is purely technical and if its management did not involve industry professionals/operators representatives there was obvious tendency that the purpose of the law could be entirely defeated. The power needed for such a waiver operations should not be vested only on the Minister of Transport going by the convention of making use of non-professionals as Ministers of Transport whose oversight functions include maritime administration in the country. There is need, in this regard for a technical committee to be set up, whose members must be tested hands and who should also have proven track records as professionals to work with the Honourable Minister from time to time for purposes of granting waivers.

According to Ihenacho,^[52] the age limit of 15 years placed on operational vessels under the cabotage is not in any way good for cabotage operations as efficiency and performance of vessels are not determined by age but on continued maintenance. Age limitation of vessels is very foreign to shipping operations world over; as proper maintenance of vessels is a very potent factor and key to vessel performance on any voyage or contract.

Airahuobhor^[53] holds the view, which this research agrees with,  that the domination of the maritime business environment by foreign operators with cheap access to funding and collaboration with their international masters crippled the indigenous operators. Financial institutions that funded these vessels lacked the technical savvy to ensure that the vessels will remain fit for purpose. Whilst sound technical management practices remain a mirage, the return on the investments became negative. It is estimated that in excess of $2 billion tied up in unperforming local maritime assets”. New entrants into the industry are equally following the path of quick gain devoid of sound technical management, noting that there is evidence of sharp practices aided and abetted by foreign unscrupulous partners.

This is a major issue which the Federal Government needs to tackle for improved and sustainable growth of the Nigeria flag state ship registry.

Iroegbu, Ndikom, Iheanacho and Airahuobhor in their somewhat respective brief analysis concentrated only about the institutional framework for the regulation of Cabotage services in Nigeria. Public institutions like NIMASA and NIWA are today considered to have a duty to ensure that maritime transport activities are conducted in a safe manner, without placing life and health at risk; they also have a responsibility not to compromise the benefits or contribution of the maritime sector to the Nigeria economy and protect national shipping interest such as Cabotage. However, in addition, public regulation of maritime transport has gradually taken on a new dimension. While it is important to avoid accidents on board vessels, as well as groundings and collisions, importance is also attached to ensuring that damage is not caused to the environment, through ship – source pollution, dumping of waste, discharging of oil from cargo or bunker tanks, etc. It is pertinent to state that the regulation of cabotage services is just part of the overall regulation related to commercial maritime operations and services in Nigeria, all of which analysis has been integrated this research.

The IMO adopted a comprehensive framework of detailed technical regulations in the form of international conventions, which govern the safety of ships and the protection of the marine environment in maritime transportation of merchants and persons. National governments, which form the membership of IMO, are required to implement and enforce these international rules and to ensure that the ships registered under their national flags comply.

1.7        Justification

The research recommends solutions to the legal and institutional problems that exist in the regulation of maritime transportation in Nigeria. It also recommends changes to regulations found to be inadequate or obsolete. Furthermore, if the recommendations proffered in this research are implemented, it will guarantee a more economically viable ship registry for Nigeria and engender sustainable shipping in Nigeria.

1.8        Organizational Layout

This research is structured into five chapters. chapter one deals with general introduction, chapter two deals with regulatory framework for maritime transportation, chapter three deals with the regulation of maritime transportation in Nigeria, chapter four deals with the institutional framework of maritime regulation in Nigeria while chapter five covers summary, findings and recommendations.

[1] Edgar G. (1981) Maritime Transport: The Evolution of International Maritime Policy and Shipping Law, Lexington Books, p. 288.

[2] Falkanger T, Hans J.B and Brautaset L(2008) Scandinavian Maritime Law, 2^nd edition Universities Digest, p80

[3] FalkangerT, Hans J.B andBrautaset, L (2008) Scandinavian Maritime Law, 2^nd edition Universities Digest, pp 7981

 

[4] ibid

[5] Organization for Economic Co-operation and Development (2001): Regulatory Issues in International Maritime Transport. Paris : OECD

[6] No 27  of 2007

[7] Cap N75 LFN, 2004 now repealed by NIMASA Act No 17 of 2007

[8] No 5 of 2003

[9] No 17 of 2007

[10] Cap N133 LFN 2004

[11] Cap N126 LFN 2004

[12] No 59 of 2007

[13] Cap M7 LFN, 2004

[14] No.54 of the International Convention for the Prevention of Pollution from Ships 73/78 (Ratification and Enforcement) Act 2007

[15] No. 5 of the International Convention on the Safety of Life at Sea Act 2007

[16] No.7 of the International Convention on  Standards of Training, Certification and Watch keeping  Act 2007   ¹⁷No.9 of the International Regulation for the Prevention of Collisions of Ships Act 2007 ¹⁸Op.cit fn 14

[17] No. 17 of 2007

[18] Organization for Economic Co-operation and Development (2001): Regulatory Issues in International Maritime Transport. Paris : OECD

[19] Usim, U Dealing with Fatique, Seafarers Greatest Nightmare, Nigeria Daily Sun newspaper of 6^th June, 2016 at p.27 ³⁴ ibid

[20] Amended in 2005

[21] No 27 of  2007

[22] Cap N75 LFN 2004

[23] No 5 of 2003

[24] Cap N 133 LFN 2004

[25] Cap N 126 LFN 2004

[26] Mukherjee,P.K,(2008)An Introduction to Maritime Law and Admiralty Jurisdiction, World Maritime University Publication, Malmo.p1

[27] Guidelines for Maritime Legislation, Third Edition, (Guidelines Vol.1) United Nations Publication, Economic and Social Commission for Asia and Pacific (ESCAP), Bangkok, Thailand.

[28] Schoenbaun T.J and Yiannopoulos,A.N,(1984) Admiralty and Maritime Law, Cases and Materials,

Charlottesville, st. Paul Minn west publishing company. p.1

[29] Mukherjee,P.K,(2008)An Introduction to Maritime Law and Admiralty Jurisdiction, World Maritime University Publication, Malmo.p1

 

[30] ibid

[31] Ibid

[32] ibid

[33] ibid

[34] Falkanger, T, Hans J .B and  Brautaset, L. (2008)Scandinavian Maritime Law, 2^nd edition, Universities Digest, p. 23

[35] ibid

[36] Op.cit

[37] Tetley, W. (1985)Maritime Liens and Claims,Ist edition, London Business Law Communications Ltd, p1

 

[38] ibid

[39] Tetley, W. (2003)International Maritime and Admiralty Law, Blais, Montreal, p. 1

[40] Falkanger T, Hans J.B and Brautaset L (2008) Scandinavian Maritime Law, 2^nd Edition Universities Digest, p.23

[41] Op.cit

[42] Tetley, W (2003)International Maritime and Admiralty Law, Blais, Montreal p.1 ;Tetley W, (1999)Maritime Law as a Mixed Legal System, Tulane Maritime Law Journal, Vol. 23, p. 331 – 336

[43] Tetley, W (1999) Maritime Law as a Mixed Legal System. Tulane Maritime Law Journal, Vol. 23, November 2, pp. 331 – 336 ⁵⁹ ibid

[44] Tetley, W (2003)International Maritime  and Admiralty Law, Blais , Montreal p 1-30

[45] Op.cit

[46] Igwe, I. E (2009)Enforcement of Ship Mortgage in International Maritime Law : Jurisdictional issues and

Practical Considerations, LL.M Dissertation, Faculty of Law , Lund University,p.1

[47] Igbokwe, M Assessment of Existing National Legislations and Regulations Relating to Pollution Prevention, National Workshop for the Ratification, Implementation and Enforcement of MARPOL 73/78 organized by IMO in conjunction with Federal Ministry of Transport between 27^th to 29^th August 2001.p.1

[48] Igwe, I.E. (2012) Responding to the Challenges of a Viable Flag State: Emergent Nigerian Paradigm and Prospects.  Consultative Paper , Nigerian Maritime Administration and Safety Agency,  p. 7 ⁶⁵ ibid

 

[49] Iroegbu, C.A. (2010) Weaknesses of the Ongoing Reforms in the Maritime Industry. The Frontier Post, May 27, 2010.

[50] Airahuobhor, A, (2014) Cabotage Act, Vessel Fund and Many Unanswered Questions, Daily Independent, Maritime.

[51] Ndikom, B.C. (2008) Maritime Transport Administration in Nigeria, Bumico Publishers,Lagos.

[52] Iheanocho, E. (2004) Cabotage and Nigeria Prospects, Constraints and Challenges. Paper presented at a seminar on Cabotage and the Oil and Gas Industry, Organized by NIMASA at Lagoon Restaurant, Lagos

[53] Airahuobhor, A (2014) Cabotage Act, Vessel Fund and Many Unanswered Questions. Daily Independent Maritime.