Introduction:

Ships can be arrested to enforce maritime claims or compliance with some maritime obligations. An arrest of a vessel is the prerequisite for the court to establish jurisdiction. If the vessel cannot be seized, the court may have no right over the vessel. Arrest is the physical process by which, a court official, the Nigeria Customs or Ports Authority goes aboard the vessel and physically takes charge of it. Nigerian Maritime and Safety Agency (NIMASA) is also empowered to arrest ships to enforce safety regulations and requirements. In instances of arrest of a ship, the notice of arrest must be posted on the vessel, a copy given to the master or person in charge, as well as to the owner and all other lien holders who claim an interest in the vessel.

Arrest of a vessel is part of the process by which an Admiralty Court gains jurisdiction over the subject matter of a law suit. These law suits are known as “in rem” actions meaning that the action is again a “thing” rather than a person.

Generally, the vessel itself is responsible for payment of liens, mortgages or any other maritime lien that may arise. When the owner encumbers a vessel with a First Preferred Ship’s Mortgage, it is the ship that guarantees payment rather than the owner. However, the owner may separately contract by a personal promise to pay or other type of guarantee to be personally liable.

The sole purpose of arresting a ship is to ensure that the judgment in the action will be satisfied if in favour of the plaintiff.  The arrest of a ship is therefore likened to “sequestration”. The term “sequestration” has no particular technical meaning; it simply means the detention of property by a court of justice for the purpose of answering a demand which is made. That is exactly what the arrest of a ship is.

Ship arrest is a civil law admiralty procedure which is practically entered upon an activity or enterprise by imposing a “warrant of arrest” on the ship.  This article provides the reader with an insight concerning ship arrest, detention, reasons for ship arrest, purpose of ship arrest and consequences of ship arrest under maritime and shipping law in Nigeria.

What is a ship?

Under section 26 of the Admiralty Jurisdiction Act, 1991, a ship is a vessel of any kind used or constructed for use of navigation by water, however it is propelled or moved and includes barge, lighter or other floating vessel, including a drilling rig, a hover-craft, an offshore industry mobile unit and a vessel that has sunk or is stranded and the remains of such vessel, but does not include a vessel under construction that has not been launched.

On the other hand, a “vessel” is a ship, brig, sloop, or other craft used or capable of being used to navigate on water. The structure’s purpose must to some reasonable degree be to transport passengers, cargo or equipment from place to place across navigable waters. See 1952 Arrest Convention, Coastal and Inland Shipping (Cabotage) Act, No 5 of 2003 (“Cabotage Act”).

Nature and essential characteristic of ships and marine vessel

Ships and marine vessels are means of transportation. The essential characteristics of a vessel are that the contrivance must be a medium for transportation and it must be able to navigate across waters however propelled. See the cases of Ecodrill (Nig.) Ltd. v. A.B.I.R (2015)11 NWLR (Pt.1470) 303, pp. 341-342, paras. H-A, Mobil Producing (Nig.) Unltd. V. Ayeni (2010) 4 NWLR (Pt. 1185) 586.

Whether an order can be made against a vessel

Where a vessel is the means by which the wrongdoer (its owner) had done wrong to some other party, it is the means by which the wrongdoer (the defendant is brought to court as a defendant. In such a situation, the circumstances dictate an action in rem which allows a legal complaint to be pursued especially where parties are in different jurisdiction. Therefore, it is when a proper action in rem has been constituted that an order can be made against the vessel.

Whether a vessel is a separate legal entity

The admiralty law recognizes a vessel as a separate legal entity.

Meaning of Maritime lien:

By the provision of section 5 (3) of the Admiralty Jurisdiction Act, 1991, “maritime lien” means a lien for –

• Salvage, or
• Damages done by a ship, or
• Wages of the master or of a member of the crew of a ship, or
• Master’s disbursements.

See the case of K. Maertsch v. Bisiwa (2014) 10 NWLR (Pt. 1416) 479, p.505, paras F-G.

By virtue of section 5(3) of the Admiralty Jurisdiction Act, 1991, in any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the court against that ship, aircraft or property.

By the provision of section 5(4) of the Admiralty Jurisdiction Act, 1991, in any other claim under section 2 of the Act, where the claim arises in connection with a ship and the person who would be liable on the claim in an action in personam (referred to in the Act as “the relevant person”) was, when the cause of action arose, the owner or charterer of or in possession or in control of the ship, an action in rem (whether or not the claim gives rise to a maritime lien on that ship) be brought against –

1. That ship, if at the time the action is brought the relevant person is either the beneficial owner of that ship in respect of all the shares in it or the charterer of the ship under a charter by demise; or
2. Any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner in respect of all the shares in the ship.

By the provision of section 5(1) of the Admiralty Jurisdiction Act, 1991, subject to the provision of section 6 of the Act, an action in personam may be brought in the court in all cases within the admiralty jurisdiction of the court.

In an admiralty action in rem, the failure of the plaintiff to join the vessel ab initio ordinarily would not render the action incompetent to rob the trial court of its jurisdiction over the parties in the dispute.

When jurisdiction of court to arrest a ship will be activated:

Section 1 of the Admiralty Jurisdiction Act, 1991 covers the admiralty jurisdiction of the Federal High Court. Section 1(e) of the Act encompasses any claim for liability incurred for oil pollution damage. Thus, the Federal High Court has jurisdiction in matters arising from any claim for liability incurred for oil pollution damages.

The Admiralty Jurisdiction Act, 1991 confers in the Federal High Court, jurisdiction over maritime claims. Section 2(1) of the Act stipulates that a reference to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim. Section 2(2) of the Act sets out the claims that fall within a proprietary maritime claim whilst section 2 (3) of the Act contains a list of the nature of general maritime claim. In sum, section 2 of the Act shows the classification of maritime claims and such claims are related to ships. Thus, for a claim to be described as a maritime claim, the act complained of must have arisen from a ship and must fall within the category of acts listed under section 2 (2) and (3) of the Admiralty Jurisdiction Act. In other words, the damages averred to have been suffered and the consequent claim must arise from or be related to a ship or vessel.

Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether registered or not and wherever the residence or domicile of their owners may be.

In an admiralty action, the jurisdiction of the court to arrest a ship cannot be activated until a writ of summons is issued and a statement of claim is served on the said ship.

What is arrest of ship?

The arrest of a ship in an action in rem is the means whereby, among other things, a plaintiff obtains security for a debt of a special character without judgment or order for payment of money. It is a right to him by the legislature, a right the scope of which has been extended by the Administration of Justice Act, 1956. Arrest is the means given by law, whereby security is obtained for a debt of a special character and by so arresting the plaintiff becomes a secured creditor.

Marine admiralty has this jurisdiction to prevent a ship legally from moving or trading as long as the resolution of the concerned court action is pending. In this case the ship, which has authorized by the pertained commission to be arrested, is usually taken in charge in conjunction with a claim rather than a warrant of arrest for its own sake. In this instance, the ship is detained by judicial process in order to secure a maritime claim, but the arrest warrant does not imply the seizure of a ship in execution or gratification of a judgment.

Arrest of sister ship:

In the context of a legal claim against a particular ship and in certain circumstances, the law allows the arrest of another ship belonging to the same owner called a “sister ship”. Sister ship arrest is really an attachment, in this case, an attachment of the sister ship. Like an attachment, the sister ship does not meant that the maritime lien against the offending ship becomes enforceable against the sister ship. Arrest is also permissible of any other ship or ships which, when the arrest is effected, is or are owned by the person who is liable for the maritime claim.

Nature of debt that would warrant arrest of a ship:

The special character of the debt that would warrant arrest of a ship is that it is incurred by giving credit to the owners of vessels for the use of those vessels. It is to be regarded in this way; it is the advancing of good on credit to a ship which, in the ordinary course of business, moves away from the port of supply, to which it may or may not return. The goods have been supplied for the necessary use of the ship and for the purpose of the ship prosecuting its adventures.

Reasons for Arrest of Ship:

There are a number of reasons which may result in the arrest of a ship. These reasons may cause the concerned authority or persons in compliance with relevant laws relating to arrest of ship to apply to the appropriate court and obtain a warrant of arrest for a formal or informal investigation of the activities of ship with respect to certain occurrences or events such as:

1. Collision,
2. Salvage,
3. Loss of life or goods or property,
4. Personal injury,
5. Violation of customs regulations or non-compliance with health and safety standards, and
6. Execution of order or judgment of court.

Procedure of Ship Arrest:

Any domestic or foreign ship may be arrested in the jurisdiction of the authority of a court or an appropriate judicial authority in respect of any maritime claim only and essentially no other claim. A claimant may ask for the arrest of a ship over a particular claim, but the ship cannot be arrested more than once by the same claimant within the same jurisdiction.

A plaintiff may apply for the arrest of a ship after complying with the requisite rules and procedures of practice. Thus, a plaintiff’s application for arrest of ship and affidavit must contain the following:

1. The nature of the claim and/or counter-claim in the case of the defendant,
2. Grounds upon which the claim is sought or predicated upon,

iii.      The name of the ship if the claim arises as a result of default from the ship as well as name of its owners,

1. The nature of the property to be arrested which must include the name of port of registry and the owners of the ship,
2. The amount of security sought as a result of the damage or occurrence and any other notice or demands that the ship master or owners of the ship must have been given before the commencement of action.

If the court finds the application meritorious, the ship becomes a security for the determined compensating costs and an object to be sold to satisfy the claim. However, most ships after being arrested are hardly sold to liquidate the judgment debt as the owners manages to  comply with the order of the court to secure the release of the ship or satisfy the requisite conditions by offering a letter of undertaking. The reason behind swift release of a ship of prevention of ship arrest is that once a ship is arrested, the owners are precluded from making use of the ship for any business transaction, thereby making the ship and their owners suffer a huge financial loss. 

When is a ship deemed to have been arrested?

A vessel is usually arrested by the court to retain jurisdiction. Thus a ship is arrested so as to obtain a pre-judgment security for a claim so that a judgment given in favour of an arrester may be secured by means of some guarantee acceptable to both the court and the arrester in place of the vessel or “res”. Thus, admiralty, undoubtedly as regards the arrest of sea-going ships, is influenced by international requirements. This is for the purpose of standardization and the application of current procedure, as much as practicable. See the case of MV Da Qing Shan v. Pan Asiatic Commodities (1991) 8 NWLR (Pt. 209) 354.

How to prevent the execution of warrant of arrest of a ship?

There are in fact certain measures to prevent arrest of ships, especially when the owner is aware of the suit and most especially, in a situation whereby the ship is being constantly used for commercial trading and the ship arrest may cause huge financial loss. Hence, it is essential to foresee potential claim against the ship or the owner himself. In most cases, the owner renders an acknowledgment of service to the claim and offer security standards to gratify the claim with interest costs. However, this may not prevent the ship from being arrested, but the court could order discharge of the ship. Before an arrest of a ship is effected, a caveat may be filed by a party who seeks to prevent the arrest of the ship. But he must undertake to enter an appearance in the action commenced against the ship and pay a stated amount into court or give a guarantee. In other words, every necessary step is taken to protect the plaintiff and before letting the ship go. 

Requirement to arrest a ship:

The first requirement for the arrest of a ship is that there is an action in rem available to the plaintiff against the ship or ship-owners. The situations when an action lies are many. These include:

1. Claims for loss of or damages to goods carried in ship, and
2. Any agreement relating to the carriage of goods in a ship.

In respect of these and others, the Admiralty jurisdiction may be invoked by proceedings in rem against the ship in question, or against what is now referred to as a “sister” ship; that is to say, any other ship in the same ownership as the defaulting ship which may come within jurisdiction. 

When warrant of arrest of a ship will be issued?

Once an action in rem is available, a plaintiff who has duly taken steps to procure a writ or a defendant who counterclaims, may, even before service of the writ, apply for a warrant of arrest of the ship against which the action is brought, or against  sister ship as the case may be. The warrant of arrest of a ship must be executed by the Admiralty Marshal or his representatives. 

Implication of a disregard of warrant of arrest of a ship:

If the Admiralty Marshal disregards a notice that a warrant has been issued against a ship and that she is not to be removed, that amounts to contempt of court. This shows that the request to arrest a ship should not be treated lightly. Once the occasion demands, the arrest will necessarily be made. 

Effect of arrest of a ship:

Once arrest has been effected on a ship, the ship remains in the custody of the court until the action is determined or the ship is fully released. But an undertaking must be given before the release. 

What to do when an arrest of a ship is made:

When an order for an arrest of a ship is made, the value of the ship will be ascertained and taken into account as at the date of the undertaking. 

Mode of effecting a release of a ship under arrest:

Where an order for the arrest of a ship is made, bail may be given by a formal proceeding before a commissioner for oaths. This is a method by which sureties give an undertaking to court that they will pay the amount for which the defendant is adjudged to be liable, if the defendant fails to do so.

Release of an arrested ship:

A ship can only be released if the arresting party allows it to or the court orders for the same. If the authority finds out a dispute over the value of the claim, the claimant has to provide an undertaking to pay on demand all the expenses related to the arrest of the ship. A third party may also claim to have a right against the ship, for which they must enter into a contractual arrangement to prevent any dealing with the ship or its release. However, this may enact the court to obligate the third party to pay the damage costs to the owner of the ship for the delay caused in its release. 

Caution:

Implementation of ship arrest can cause severe disruption to a ship and its owners. Nevertheless, the criteria for arrest of ships in a certain jurisdiction must ensure to have satisfied otherwise a warrant for wrongful arrest unlawfully may ensue and terminate the case and cost the claimant severe expenses for the impairment caused. Both the owner of the ship and the claimant for ship arrest must be aware of this fact.

Detention of ship:

A ship is detained because of a considerable port state control deficiency or multiple deficiencies. With these deficiencies, if the port state officer feels that it is not safe for the ship to proceed to the sea, the ship will be detained. The detention order of the ship is lifted only when the deficiencies are corrected and in the opinion of the port state officer, when the ship is seaworthy.

On the other hand, a ship may be arrested

• Because of willful violation of Local or international rules such as violation of MARPOL
• Because of a local court order, for example, because of a party exercising its lien on the ship.

Once seized, the court, through the sheriff or substitute custodian, maintains possession of the vessel and the owner loses all control. It is widely accepted that the custodian of a seized vessel should not interfere with the conduct of cargo and other operations normal to a vessel in berth unless directed so by court order.  To avoid this situation and its effect on commerce, the court will allow the owner to post a bond, letter of undertaking or other suitable security. Once the security is accepted, the vessel is returned to the owner and the litigation continues with the security as the subject of execution of judgment.

In the case of NIMASA & Anor v. Hensmor Nigeria Ltd. (2014) LPELR-22462CA, the court stated the effect of a ship being held under detention by virtue of section 388 of the Merchant Shipping Act, 2007 as follows:

“Where a ship is held under any provision of this Act requiring detention until the happening of a certain event, the ship shall be deemed to be finally detained for the purposes of Chapter 50 of this Act (which relates to unseaworthy ships) and the owner of the ship shall be liable to pay to the Government of the Federation the cost of and incidental to the detention and survey if any of such ship, and those costs shall, without prejudice to any other remedy, be recoverable as salvage is recoverable”.

By virtue of section 135 (1) (2) and (3) of the Merchant Shipping Act, a law enforcement authority may detain a vessel sailing without valid certificates. Sub-section 4 of the section makes it a criminal offence to sail without valid or with expired certificates.

Section 40 (1) (2) and (3) of Nigerian Maritime Administration and Safety Agency Act, 2007 empowers the agency to detain unsafe ship as follows:

• – Notwithstanding the provisions of any other law, where the agency has reason to believe that any ship, being in any port or place in Nigeria, is an unsafe ship and a security risk and is, by reason of any of the matters mentioned in subsection (2) of this section, unfit to proceed to sea without serious danger to human life having regard to the nature of the service for which it is intended, such ship is liable to be detained.
• The matters referred to in subsection (1) of this section are:

1. The condition or unsuitability for the purpose of:
   1. The ship, its machinery or equipment; or
   2. any part of the ship, its machinery or equipment;
2. Under-manning;
3. Overloading, unsafe or improper loading; and
4. Other matters relevant to the safety and security of the ship.

• In performing its functions under this section, the Agency shall have regard to the ISM Code, the ISPS Code and other international conventions and Federal legislation on ship safety and security.

Furthermore, section 75 (1) (2) and (3) of the Nigerian Ports Authority Act, 1999 empowers the authority to distrain or arrest ship, etc for non-payment of dues and rates as follows:

• – if the master of a ship in respect of which any dues or rates are payable refuses or neglects to pay the dues or rates on demand, the Authority may distrain or arrest the ship and the tackle, apparel and furniture of ship and may detain them until the amount of the dues or rates is paid,
• – If for a period of fourteen days following a distrain or an arrest –

1. Any dues or rates; or
2. Any of the expenses of distrain or arrest or of the detention of the ship and its tackle, apparel and furniture, remain unpaid, the Authority may cause the ship or tackle, approach and furniture distrained or arrested to be sold.

• – The Authority may, out of the proceeds of the sale, retain the amount of dues, rates or expenses which are owed and shall deliver the balance to the master of the ship on demand.

When is a ship deemed to have been detained?

By virtue of section 388 of the Merchant Shipping Act, Cap 224, Laws of the Federation of Nigeria, 1990, where a ship is held under a any provision of the Act requiring detention until the happening of a certain event, the ship shall be deemed to be finally detained for the purposes of Chapter 50 of the Act, which relates to unworthy ships and the owner of the ship shall be liable to pay to the government of the federation the costs of and incidental to the detention and survey of any such ship and those costs shall, without prejudice to any other remedy be recoverable as savage is recoverable. 

Propriety of staying the release of a detained ship:

The release of a detained ship can in no sense mean a completed act which can no longer be stayed. To imagine so is to wish to strain words beyond their proper purpose.

Amount of bail to be paid to effect release of an arrested ship:

The amount of bail should be sufficient to cover the plaintiff’s claim together with interest thereon and the costs of the action. 

Purpose of bail of an arrested ship:

The bail represents the res which the plaintiff can hold on to in place of the ship. Once it has been given the ship is wholly released from the cause of action and cannot be arrested again for that cause of action, in order to obtain further bail. 

Alternative open to court in place of bail of an arrested ship:

In place of bail, a court can impose a condition in the order of release, such as a bank guarantee to cover the amount of claim. Without such bail or such guarantee, there can always be re-arrest of a released ship still within jurisdiction so as not to defeat the proper purpose of arrest and detention. 

Pre-requisite for the release of an arrested ship:

Once the institution of an action in rem leads to the arrest of a ship, a proper release can be done only upon some form of undertaking or security or bail. 

Relevant consideration for the release of an arrested ship:

If the parties cannot agree on the terms and the court has to use its discretion, it will order a release upon some guarantee by the defendant and may consider factors such as the convenience of the parties and the risk of deterioration of the vessel. 

Requirement of condition before the release of an arrested ship:

If there has been a proper arrest and for any reason a release was not made conditional upon some guarantee, the court in whose custody the ship is can recall the ship and impose conditions for the proper release if still within jurisdiction.  It does not matter if it is called a re-arrest. 

Principles governing re-arrest of ship:

There is international provision governing the arrest of ships. Article 3 (3) of the International Convention of 1952 made in Brussels, find that there are circumstances in which it may be necessary to re-arrest a ship. The Article is expressed in the following terms:

“A ship shall not be arrested, nor shall bail or other security be given more than once in any one or more of the jurisdiction of any of the contracting States in respect of the same maritime claim by the same claimant and, if a ship has been arrested in any one of such jurisdictions, or bail or other security has been given in such jurisdiction either to release the ship or to avoid a threatened arrest, any subsequent arrest of the ship or of any ship in the same ownership by the same claimant for the same maritime claim shall be set aside and the ship released by the court or other appropriate judicial authority of that state, unless the claimant can satisfy the court or other appropriate judicial authority that the bail or other security had been finally released before the subsequent arrest or that there is other good cause for maintaining that arrest”. 

Effect of failure to produce bail before release of an arrested ship:

The fact that there is an appeal against the propriety of a release from arrest of a ship without bail or other security having been given may be a good cause for subsequent arrest pending the determination of the appeal. A court should never be seen to contribute towards making the outcome of the case before it or appeal nugatory by allowing the res to be destroyed or taken out of the jurisdiction. 

Pre-condition for effecting a warrant of arrest of a ship:

In effecting a warrant of arrest, there must be a tangible res in existence such as a ship or some cargo. Once bail is secured for the tangible res, the bail itself becomes the res. 

Whether an arrest of a ship is an execution of an order of court:

It is inappropriate to regard an arrest of a ship as an execution of an order of court. It follows that the term “stay of execution” and the condition for granting it will be misleading. 

Distinction between execution and arrest:

Execution succeeds and does not precede judgment, whereas in arrest, there is no existing judgment on which to execute. 

Whether arrest of a ship can be regarded as execution of an order of court to arrest:

The term “execution” may be used loosely in relation to the carrying out of an arrest of ship in the same sense as the execution of a warrant of arrest of defendant about to leave the jurisdiction or of a suspect. That cannot bring either situation within the principles for granting a stay of execution if it was intended to stop or prevent such an arrest. It is, inappropriate and unsustainable to attempt that. 

Who to provide guarantee or bail for the release of an arrested ship:

Where a ship has been arrested, any undertaking or guarantee or bail for the release is always given by the defendant, not the plaintiff.

Need to give sufficient reason for entering a caveat against the release of an arrested ship:

When a caveat is entered against the release of a ship, sufficient reasons must be given for the caveat. Where the release is delayed on insufficient reason for entering caveat, the person having an interest in the ship may apply to the court for an order for damages. 

On condition precedent to the release of an arrested ship:

As long as there is a pending action in rem to connection with a ship which has been arrested, there must be a proper guarantee or bail to effect her release. See the case of MV “Du Qing Shan” v. P.A.C Ltd.  (1991) 8 NWLR (Pt. 209) 371 pp. 366-369.

Sources and scope of Nigerian Ports Authority to carry on shipping business and administer ship related issues in Nigeria

By virtue of sections 8 and 9 of the Nigerian Ports Authority Act, 2004 and Part III of the Third Schedule to the Act, the Nigerian Ports Authority is the body corporate charged with the responsibility of administering all ship related issues in Nigeria.

By virtue of sections 8 (e) (f) and 9, Nigerian Ports Authority Act, 2004, the Authority can carry on business of carrier by land or sea, stevedoring, wharfinger, wharehouseman or lightman or any other business desirable for the functions of the  Authority. It may acquire any undertaking of any registered business that affords facilities for loading, unloading or warehousing of any goods in any port in Nigeria. And it may perform or exercise any of its functions or powers under the Act other than the power to make regulations, through an officer or agent of the Authority or through any other person authorized by the authority in that behalf. Thus, the Nigerian Ports Authority has wide discretionary powers under the Nigerian Ports Authority Act to impose levies in respect of activities at various ports and harbours in Nigeria. See the case of Total Nigeria Plc. v. New Cargo Handling Co. (2015) 17 NWLR (Pt. 1489) 558 at pgs. 584, paras. E; 585, paras. A-E.

Power of Maritime Authority to detain vessel sailing without valid certificate:

By virtue of section 135(1), (2), (3) and (4) of the Merchant Shipping Act, Cap 224, Laws of the Federation of Nigeria, 1990, the Maritime Authority in Nigeria may detain a vessel sailing without valid certificates. Sailing without valid or with expired certificates amount to a criminal offence and by virtue of section 388 of the Merchant Shipping Act, Cap. 224, Laws of the Federation of Nigeria, 1990, unworthiness includes discovery that any of the ship’s certificates has expired. See the case of Narumal & Sons Ltd. v. NBTC Ltd. (1989) 2 NWLR (Pt. 106) 730, NIMASA v. Hensmor (Nig.) Ltd (2015) 5 NWLR 278, pgs. 318-319, paras. E-B.

The Purpose of a security in the arrest of vessel.

In the case of Owners of the MV “Miami Maiden” v. NPA (2011) LPELR-4811CA, the court held: “it is indeed trite, that the fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in an action in rem. Where the arrest of a vessel precedes an action and judgment, then the vessel or property arrested stands as security for any subsequent judgment to be enforced there against”. See the case of Niger Meeson’s Admiralty Jurisdiction and Practice, 2^nd Edition, at 135, paras, 4.024. Undoubtedly, the release of a vessel from arrest or detention upon security does not necessarily bring to an end any proceeding pending against the owners thereof. See Sasegbon on Arrest on Ships, Volume 4 at page 15 thus: essentially, pre-judgment arrest in admiralty proceedings is either to prevent, pending the determination of the proceedings, the removal from the jurisdiction of a particular vessel which may be used in satisfaction of a possible judgment in the claimant’s favour or to compel, in lieu, the provision of security corresponding in value to the amount claimed or sometimes the value of the particular vessel.

In the case of Ibe Abai & Coy. Nig. Ltd. & Anor. v. Oceanic Traders Navigation Ltd (1907-1979) 1 NSC 418, the Supreme Court had aptly held that: “It is well settled that in legal and other transactions, the purpose of a security is to enable a person who has suffered damage in the hands of the person required to enter the security or other person on his behalf to fall on the security on the eventuality that he is not able to secure any or adequate reparation from the legal action arising from the damage. In the case of ships, the well-established Admiralty Jurisdiction in respect of ships which is arrested is that security is given to obtain the release of the ship after it has been arrested. It is instructive, that the right of a ship owner to limit his liability for damage caused by his vessel in consequence of a collision or other incident has over the years been recognized by Maritime Law and Practice. See section 383 of the Merchant Shipping Act, 1962, sections 361-363 of the Merchant Shipping Act, CAP 224, Laws of the Federation of Nigeria, 1990 and sections 351-362 & 363 of the Merchant Shipping Act, CAP M11, Laws of the Federation of Nigeria, 2004.

However, it should be mentioned, at this point in time, that a significant change introduced in Nigerian Maritime or admiralty law is that the concurrent Merchant Shipping Act, 2007 has proscribed high limits of liability on ship owners as a result of global inflation. See section 354 of the 2007 Act thus: A person liable shall not be entitled to limit his liability if it is proved that the loss or damage resulted from his personal act or omission or the omission of his servants or agents acting within the intent to cause such loss or damage or reckless and with knowledge that such loss would probably result.

Section 6 (1) and (2) of Admiralty Jurisdiction Act, 1991 states:

• – “A ship or other property arrested in a proceeding on a maritime claim shall not be re-arrested in the proceeding in relation to the claim unless the court so orders, because default has been made in the performance of a guarantee undertaking given to procure the release of the ship or property from the earlier arrest or for some other sufficient reason.
• – An order under subsection (1) of this section may be made subject to such conditions as the Court deems just in the circumstances.”

Section 13 (1) and (2) of the Admiralty Jurisdiction Act, 1991 provides payment for wrongful arrest as follows:

• – “Where, in relation to a proceeding commenced under this Act –

1. A party unreasonably and without good cause – (i) demands excessive security in relation to the proceeding; or (ii) obtains the arrest of a surety of a ship or other property under this Act; or
2. A party or other person unreasonably and without good cause fails to give a consent required under this Act for the release from arrest of a ship or other property, the party or person shall be liable in damages to a party to the proceeding, being a party or person who has suffered loss or damage as a direct result.

• – The jurisdiction of the Court shall extend to determining summarily, in relation to the proceeding, a claim arising under subsection (1) of this section.

Section 72 (1) (2) and (3) of the Nigerian Ports Authority Act, 1999 provides for the power to distrain or arrest as ship or other property for non-payment of dues and rates as follows:

• – ‘If the master of a ship in respect of which any dues or rates are payable refused or neglects to pay the dues or rates on demand, the Authority may distrain or arrest the ship and the tackle, apparel and furniture of the ship and may detain them until the amount of the dues or rates is paid.
• – If for a period of 14 (fourteen) days following a distrain or an arrest –
  1. Any dues or rates; or
  2. Any of the expenses of distrain or arrest or of the detention of the ship and its tackle, apparel and future, remain unpaid, the Authority may cause the ship or tackle, apparel and furniture distrained or arrested to be sold.
• – The Authority may, out of the proceeds of the sale, retain the amount of dues, rates or expenses which are owed and shall deliver the balance to the master of the ship, on demand.

Section 122 (1) (2) (3) (4) (5) (6) and (7) of the Armed Forces Act, 1993 provides for avoiding delay after arrest of ship or other property as follows:

• – ‘Subject to the provisions of subsection (2) of this section, the allegations against a person subject to service law under this Act who is under arrest shall be duly investigated within reasonable time and as soon as may be, either proceedings shall be taken for punishing his offence or he shall be released from arrest within 24 hours.
• – The commanding officer shall have power to determine whether further detention shall continue beyond a period of 24 hours.
• – Where a person subject to service law under this Act, having been taken into service custody, remains under arrest for a longer period than eight days without a court martial for trial being assembled –
  1. A special report on the necessity for further delay shall be made by the commanding officer to the prescribed authority in the prescribed manners; and
  2. A similar report shall be made to the like authority and in the like manner every eight days until a court-martial is assembled or the offence is dealt with summarily or the person is released from arrest, the total period of such further detention not exceeding ninety days, so however that in the case of a person on active service or in the Navy at sea, compliance with this subsection shall be executed in so far as it is not reasonably practicable having regards to the exigencies of service operations.
• – For the purposes of subsection (1) of section 84 of this Act, the question whether there has been unreasonable delay in the taking of any steps for the investigation against a person under arrest shall be determined without regards to the provisions of subsection (3) of this section.
• – The prescribed authority referred to in subsection (3) of this section shall have power to review the adequacy of probate cause and the propriety or otherwise of further detention,
• – A person arrested under this Act by virtue of this section shall, as soon as is practicable, be released from custody by the person making the arrest unless be believes on reasonable grounds that it is necessary in the interest of public order or the Armed Forces and the need to prevent deliberate undermining of service discipline that the person be retained in custody having regard to all the circumstances, including –
  1. The seriousness of the allegation or accusation, for example, murder or treason;
  2. The need to establish the identity of the person under arrest;
  3. The need to secure or preserve evidence of or relating to the allegation or accusation;
  4. The need to prevent the continuation or repetition of the offence or any other offence;
  5. The necessity to ensure the safety of the person, other persons or property;
  6. The need to forestall the actual or likelihood of interference with investigation, for example, threatening, intimidating, eliminating or subordination or witnesses;
  7. The need to prevent escape of the accused; and
  8. The fact that the accused has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself.

In the case of MT Delmar & Anor v. MT “Ane (Ex MT Leste”) & Ors (2016) LPELR-40067CA states that Order VI, Rule 7 of Admiralty Jurisdiction Procedure Rules, 1993 provides options open to a person claiming against a ship under arrest and it states:

“Where a ship or other property is under arrest in a proceeding, a person may file in the court a caveat against the release from arrest of the ship or property in lieu of obtaining a further arrest of that ship or property”.

By the above provision, where a person has a claim against a ship that is already under arrest in a proceeding, it can in lieu of obtaining a further arrest of the ship file a caveat against its release. The above provision to my mind implies that the caveator must have filed a claim against the ship in order to give him the right to file a caveat against the release of the ship. See also the case of The Banco (1971) Probate 137 at 151 and Halbury’s Law of England 4^th Edition, Volume 1, para 310.

In the case of The Owners of The MV Angara & Anor v. Chrismatel Shipping Company Ltd., (2001) LPELR-10161CA, the court held that:

“An application in rem being procedural, the main purpose of it is to secure the personal appearance of the defendant, the ship or the res to arrest the ship within jurisdiction. The substratum being the lien resulting from the personal liability of the owner of the ship.” See also the case of Chief Registrar High Court, Lagos State & Anor. v. Vamos Navigation Ltd. (1976) 1 All N.L.R (Pt. 1) 11, Ming Shipping v. Amajemeso Shipping Agencies Ltd (1979) 1 NSC 462 at 466/467, and The Utopia (1893) A.C 492 and Halsbury’s Laws of England 4^th Edition, Volume 1, paras 310.

The court stated the purpose of a security in the arrest of vessel in case of Owners of the MV Miami Maiden v. The Nigerian Port Authority (2011) LPELR-4811CA, where it was held that:

“It in indeed trite, that the fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in an action in rem. Where the arrest of a vessel precedes an action and judgment, then the vessel or property arrested stands as security for any subsequent judgment to be enforced there against”.

What a ship owner seeking to limit his liability for damage caused by his ship must show to succeed has been stated in the case of Owners of the MV Miami Maiden v. The Nigerian Port Authority (2011) LPELR-4811CA, where it was held that:

“It is pertinent to note that a ship owner seeking to limit his liability for damage caused by his ship can only succeed if he shows that the occurrence took place without his actual fault or privity”. Per Saulawa J.C.A, p. 24, paras. E-F.

In the case of Rhein Mass Und See & Ors v. Rivway Lines Limited (1998) LPELR-2948SC; (1998) 5 NWLR (Pt. 549) 265; (1998) 4 S.C, (1998) All NLR 565 provides for the limitation of action in admiralty matters when the court held:

“The general restriction limiting the law within which actions founded on contract or tort must be brought does not apply to any cause of action within the Admiralty Jurisdiction of the Federal High Court which is enforceable in rem except an action to recover a seaman’s wages. However, the statutory period under the limitation law is reckoned from the accrual of the cause of action giving rise to the action”.

What action in rem entails?

An action in rem is a piece of legal machinery directed against a ship alleged to have been the instrument of wrongdoing in cases where it is sought to enforce a maritime or statutory lien or in a possessory action against the ship whose possession is claimed. A judgment in rem is a judgment good against the whole world. This does not meant that the vessel is the wrong doer, but that it is the means by which the wrongdoer (its owner) has done wrong to some other party. It is the means by which the wrongdoer is brought before the court as a defendant. It is an accepted legal theory that an action in rem is procedural. The purpose is to secure the defendant owner’s personal appearance. An action in rem is one in which the subject matter is itself sought to be affected and in which the claimant is enabled to arrest the ship or other property and to have it detained, until his claim has been adjudicated upon or until security by bail has been given for the amount or for the value of the property proceeded against, where that is less than the amount of the claim. See the case of Rhein Mass Und See & Ors v. Rivway Lines Limited (1998) LPELR-2948SC; (1998) 5 NWLR (Pt. 549) 265; (1998) 4 S.C, (1998) All NLR 565.

What an action in personam entails:

Etymologically, an action in personam is an action brought against a person an action to compel to do or not to do a particular thing or take or not to take a particular cause of action or inaction. Actions for damages in tort or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purpose of declaring or challenging a status, like proceedings under the matrimonial laws of the country or of legitimacy or an admiralty action directed against a ship or the res (and so known as an action in rem) or the like. Generally therefore, all actions which are aimed at the person requiring him to do or not to do or to take or not to take an action or cause of conduct must be and are actions in personam. See the vase of Rhein Mass Und See & Ors v. Rivway Lines Limited (1998) LPELR-2948SC; (1998) 5 NWLR (Pt. 549) 265; (1998) 4 S.C, (1998) All NLR 565, pp.15-16, paras. G-C.

Conclusion:

The arrest of ships through a court order is mainly to obtain a pre-judgment security to satisfy any judgment the plaintiff may obtain in his favour before or after the trial of his claim in court until the release of the arrested ship upon its owner providing an acceptable security. Arrest has also been described as the “seizure” of a ship by authority of a court of law either as security for a debt or simply to prevent the ship from leaving until a dispute is settled or for contravening the laws of a country. A ship can only be arrested when it is within the limits of the territorial waters of Nigeria, namely within 12 nautical miles from the baselines. A Plaintiff may also obtain a warrant of arrest in anticipation of the arrival of an offending ship within the territorial limits and upon the arrival of the ship within Nigerian territorial waters, grab hold upon on it with the arrest warrant. See the case of Maxwell Ebube v. Gold Star Line Limited 4 N.S.C. 226.

However, one of the benefits of in rem actions is that an offending ship can be arrested anywhere in the world in a State other than where it breached a contract or committed a tort leading to the claim against it, if the local laws relating to arrest are properly followed. See the case of M.V Arabella v. NAIC (2008) 11 NWLR (Pt.1097) 182.

The res may be arrested and sold to satisfy the judgment in rem against it but a ship arrest, is often quickening the end of the proceedings by settlement, is not the end of the proceedings since the plaintiff or defendant/counterclaimant still has to prove that he is entitled to the substantive claim/counterclaim, which requires a good understanding of the principles of maritime law governing the substantive claim/counterclaim. The security is necessary so as to ensure that any judgment the plaintiff obtains at the end of trial is not rendered nugatory or barren because there is no asset of the defendant within the jurisdiction of the Court since being a mobile asset, a ship moves from one jurisdiction to the other different from where she is registered and from where her owners are based or have assets. Ship arrest and pre-judgment security are some of the things that distinguish admiralty actions in rem from other civil causes and matters. See the cases of A.M. Soetan v. Total Nigeria Limited (1972) 1 SC 61 647, Messrs N.V. Scheep & Anor. v. The MV “S. Araz” & Anor (2001) 1 SCM 140 656, NV. SCHEEP v. MV. S. ARAZ (2000) 15 NWLR (Pt. 691) 622.