The laws that regulate the transportation of goods and persons by sea include the Admiralty Jurisdiction Act 1991(the Act) and other relevant maritime laws. The laws that govern vessel claims in Nigeria are the Admiralty Jurisdiction Act 1991, the Admiralty Jurisdiction Procedure Rules 2011 and the Federal High Court Rules.
Maritime claims are demands arising from statutory or contractual entitlement in transactions involving shipping operations. The Act under the section 1 provides that the Federal High Court has exclusive jurisdiction to hear and determine any question in relation to a proprietary interest in Ship or any Maritime claim.
Maritime claims are categorized into Proprietary claims in reference to ownership of ship, mortgage etc, and General maritime claims in reference to damage of the ship and collision claims which is the crux of this write-up.
Collision claims are for losses and damages to properties or goods arising from a collision between vessels. When collision arises there is usually a damaging effect from the degree of fault and liability on each vessel involved.
Whenever a collision has occurred, investigations are carried out and evidence will be obtained to determine the circumstances surrounding the collision as well as the resulting losses to the vessel. The responsibility apportioned for collision is on a percentage basis depending on the surrounding circumstance of the collision. Responsibility does not usually fall solely on one vessel, so no matter how small the collision is, it will fall on each vessel to the collision. Where this occurs, an attempt can be made to resolve claims that would arise as a result of the accident.
Collision claims do not directly affect the Res (the ship), rather it arises from the operation of the res or agreement relating to the res.
In a claim as a result of the collision of the vessels, an Action in Rem may be brought in court against the ship or property in connection to which the claim arises, as it is provided in section 5 (2) of the Act. An action in Rem is one that lies against the ship.
The practice and procedure in instituting an action in court for collision are regulated by the Admiralty Jurisdiction Procedure Rules 1993. According to Order 2 Rule 1 of the Rules, the admiralty action filed in Court is commenced by a Writ of Summons. The writ of summons for the action in rem is accompanied by a statement of claim.
Procedure for Vessel Collision Claims in Nigeria as provided by the Rules
According to Order 3 Rule 1of the Admiralty Jurisdiction Procedure Rules, in an action to enforce a claim for damages arising from loss of a ship, or damage done to or by a ship following a collision between two or more ships, each party must file a preliminary Act unless the court orders otherwise.
The preliminary Act will contain the following in accordance with Order 3 Rule 2:
- The name of the ships that came into collision and their ports of registry
- The date and time of the collision
- The place of the collision
- The direction and force of the wind
- The state of the weather
- The state, direction and force of the tidal and other current
- The course steered and speed through water when the other ship was first seen or immediately before any measure was taken with reference to her presence, whichever was earlier.
- What light or combination of lights (if any) of the other ship was seen
- The distance and bearing of the other ship and when her echo was first observed by radar
- The distance, bearing and approximate heading of the other ship when first seen
- What other lights or combination of light if any of the other ship was seen before the collision and when
- What alterations were made to the course and speed of the ship after the earlier of the two times the light of the other ship was seen, up to the time of the collision and when and what measures other than the alterations of course or speed was taken to avoid the collision and when?
- The heading of the ship, the parts of each ship which first came into contact and the approximate angle between the two ships at the moment of contact
- What sound signal was given and when
- What sound signal was heard from the other party and when?
The plaintiff in instituting the action will file his preliminary act within 7 days after the commencement of the proceeding and the defendant will file their preliminary act before filing any pleadings.
The preliminary act is filed in a closed envelope, sealed with the seal of the court and bears the date of filing as required under Order 5 Rule 4.
Failure to file the Preliminary Act
Under Order 5 Rule 5, where the plaintiff fails to file the preliminary act, the Court may on an application dismiss the proceeding or take an order on terms as it thinks just. Where the defendant fails to file a preliminary act, the plaintiff may take the same steps as taken in relation to the defendant who failed to defend.
The court at any stage of the proceeding after pleadings have been closed, on an application or its own motion order that the registrar opens the envelope containing the preliminary act and make further orders as appropriate.
In the case of Chief Otonyeseigha Ololo v. Nigerian Agip Oil Ltd and Anor (2001) 6 S. C 136, the Supreme of Nigeria was called upon to decide an action bothering collision of ships. In this case, the plaintiff sued the defendant in the High Court for the sum of N500, 000.00 for special and general damages arising out of the defendants’ negligence in causing the collision and total wreckage of the plaintiffs’ passenger goods boat. After the hearing of the matter and conclusion of the evidence, the learned trial judge entered judgment in favour of the plaintiff in the sum of N67, 484.16
The defendant dissatisfied with the judgment of the trial court lodged an appeal in the court of Appeal holding at Port-Harcourt, which granted the appeal against the plaintiff in parts. The appellate court discovered that the plaintiff contributed to the negligence up to the tune of 75% in causing the accident. The damages awarded at the trial court to the plaintiff were therefore reduced to N55, 297.50 and the defendant was adjudged to be liable to the plaintiff in the sum of N13, 824.38.
Aggrieved by this, the plaintiff appealed to the Supreme Court in respect of the part of the judgment that found him contributory negligent and thereby reducing the amount of damages payable, the Supreme court upheld the decision of the Court of Appeal and dismissed the appeal on the grounds that both the plaintiff and defendant were found to have contributed in causing the marine collision. The two parties must share the blame and consequently the damages.
The limitation period for instituting a maritime claim is a period of three years after the cause of action arose. The claim for damage done to a ship by collision is brought by an action in rem. Collision claims fall under the general category of claims that can be instituted under the maritime law.
An action in rem is against the maritime property (Cargo, Vessel or Freight) and not the owner of the ship.
Written by the Shipping & Maritime Law Department at the Resolution Law Firm