Primarily, ships can be arrested to enforce maritime claims and obligations. Nigeria Customs Service or Port Authority may even detain ships inside harbor to enforce some cargo related obligations and compliance. Nigerian Maritime And Safety Agency (NIMASA) is also empowered to arrest ships to enforce safety requirements and due registration.
However, the ship arrest by Nigerian Navy seems to be the major item dominating the news recently. The Naval commands seem to now issue weekly news of arrest of one ship or the other. All these arrests are done without any Court order because they are arrests bothering on alleged commission of crimes.
The power of Nigerian Navy to arrest ship is derived from the provisions of Section 1(4)(a) of the Armed Forces Act, which empowered Navy for enforcing and assisting in coordinating and enforcement of all laws including anti-bunkering (sic). Subsequent Presidential Executive Orders also directed Navy to secure Nigerian oil assets and pipelines.
In achieving all these objectives, Nigerian Naval Headquarters issued regulations by which all vessels seeking to discharge petroleum products or conduct ship to ship (STS) transfer should obey. Consequently, no vessel may undertake to discharge petroleum products in Nigeria at any jetty or port or conduct a STS transfer without a Naval Approval. The Naval Approval is also required before a vessel can be bunkered in the sea or at harbor.
And of recent, Nigeria Naval Personnel may choose to board a vessel to demand the documents of the loaded petroleum cargo or take sample of the said product for further analysis to ensure it meets the standard stipulated by Department of Petroleum Resources (DPR) and Standard Organization of Nigeria (SON).
Having regards to the forgoing, it is advised that all tankers operating in Nigerian Water Territory to always timeously seek a Naval Approval before undertaking to discharge or transfer petroleum cargo in Nigeria water territory. The vessel owners also have a responsibility to ensure the cargoes loaded on their vessels are of standard and quality required by the regulatory Agencies.
The consequence of Naval arrest seems to be dire under Nigerian law. Although Navy do not have prosecutorial power under Nigerian law, but they might transfer the vessel, cargo and crew arrested to prosecutorial authorities like Nigerian Police Force or Economic and Financial Crimes Commission (EFCC). Where prosecutorial authorities have conducted additional investigations and established a prima facie case, they may prefer charges in pursuant to the provisions of Miscellaneous Offences Act (1983). The penalty stipulated by this Act ranges from forfeiture of assets to life imprisonment if convicted.
Howbeit, there have been instances where vessel owners and crew have complained of arrest by Naval personnel even when they have no cargo onboard or have their cargo’s documents intact. Such an act is blatantly wrong. Any ship owners or crew that have been subjected to this incidental arrest should immediately seek a legal advice. In the alternative, such people might forward their complaint directly to Chief of Naval Staff, who has the authority to order an immediate release of any Ship in unlawful custody of the Navy.
Meanwhile, it has been discovered that ship owners and crew who have been subjected to unlawful arrest are too fearful to confront Navy because they are probably afraid of the military setting generally. Whereas the shipping participants should understand the Navy are working to protect them and not to hurt them. Besides, Navy is a force established by Nigerian statute, therefore they may not engage in any conducts contrary to the law of the Country.
After enduring over one year arrest, a ship owner in Apapa, Lagos filed an action in Court to seek the release of his ship last year after he had been begging some officers in Navy for more than a year to release his ship without any headway. The Court ordered the release of the said ship to the owner immediately.
Finally, the Navy must ensure they do not arrest ship on mere assumption or suspicions. The Naval personnel at the sea or in charge of enforcement must also be duly informed by their superiors that Naval Approval to discharge or transfer cargo is not ordinarily an international recognized shipping document. It is extra-ordinary measure put in place by Navy Authority to checkmate the problem of illegal bunkering. It is only relevant where there is cargo onboard the vessel. Therefore, Naval personnel lack power to detain any ship without any cargo onboard on a mere excuse that the ship does not possess a Naval Approval. Where Navy arrest ship for no cogent reason, the ship owner is entitled to sue for damages.
Olusola Jegede is a legal practitioner based in Lagos.