By Mr Emeka Akabogu, Principal Partner Akabogu & Associates
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
Introduction
A ship is not arrested in a police station nor by shackle-bearing marine police on the sea. Lawyers and courts must be involved via a series of specific procedures and conditions.
Claims involving ships can be resolved faster than many other commercial claims if both parties understand and abide by established practice and procedure. This advantage is due to a unique feature of maritime law, which – in applicable situations – permits claimants to obtain pre-judgment security through ship arrest. Ships are arrested by legal action in court instituted by lawyers familiar with the applicable procedures. The action must be instituted in the Federal High Court – not a state high court, national industrial court, customary court or Sharia court.
In order to arrest a ship, an action against it must be undertaken in rem in the judicial division where the ship is located.
An ex-parte motion disclosing a strong prima facie case for a ship’s arrest must be filed together with the originating process. An arrest application must be accompanied by:
- exhibits supporting the claim;
- an undertaking to indemnify the ship against wrongful arrest;
- an undertaking to indemnify the admiralty marshal for the expenses of the arrest; and
- an affidavit of urgency stating why the application must be heard expeditiously.
An arrest application will fail if the claim is not made against a relevant person. A ‘relevant person’ is defined in the Admiralty Jurisdiction Procedure Rules (AJPR) as essentially the person who is primarily liable on the claim, which must be a valid maritime claim as defined in the AJPR. If it transpires that an arrested ship is not owned by or otherwise has its interests locked in as required with the relevant person, the arrest should not happen. Where it does, the arrest will be wrongful, with the likelihood of liability in damages.
Where a motion is heard and granted, a warrant of arrest will be issued. A warrant of arrest is usually served alongside a writ of summons and statement of claim by affixing sealed copies of the processes to a mast or some other conspicuous part of the ship. Copies of said processes must also be served on the appropriate officers of the Nigerian Ports Authority (eg, the harbour master, port manager and traffic manager).
All claims enforceable in rem can be brought by way of arrest, including:
- claims for the possession, ownership and mortgage of a ship or its freight; and
- maritime liens.
These enforceable claims may also include claims arising in connection with a ship where the person who would be liable for the claim in an action in personam is the owner or charterer of or in possession or in control of the ship when the cause of action arose (Section 2, Admiralty Jurisdiction Act and Order 7, Rule 1(1) of the Admiralty Jurisdiction Procedure Rule 2011).
Comment
Persons claiming against ships should be careful to comply with the detailed procedural requirements, otherwise valid claims may be compromised by the additional possibility of liability in damages. Ship interests equally need not go into panic mode on the arrest of the ship. A detailed review of the processes filed for compliance or non-compliance with arrest procedures should be the first step, possibly coupled with other extenuating measures.