ABSTRACT: This article is a monograph on ship arrest proceedings in admiralty practices. It begins with the history of ship arrest in a laconic style. Matters relating to admiralty jurisdiction, maritime claims, maritime liens, grounds to warrant the ship arrest proceedings and enforcement of ship arrest proceedings are some of the focal points of the monograph; And all this are done in a comparative manner between Nigeria admiralty practice and U.K (England Wales).

Introduction The origin of ship arrest practice may be traced to Denmark, way back in mid-sixteen century during the reign of Jame charles 1, in which it used to be called ship money.

The practice was purely used to tax ship owners to raise money for the government. But, this has now changed both in nomenclature and substance; thus, is now referred to as ship arrest. Ship arrest may be safely described as a pre-judgement security for claims against ship or cargo--essentially to secure the appearance of maritime debtor who may have become evasive; to confer jurisdiction on the court where the ship or cargo is seized, notwithstanding the lex fori ;and lastly, to guarantee security for the claim of the maritime creditors .

Thus, in line with this, the followings below are the focal points of this article and shall be considered seriatim:

• 1. A BRIEF HISTORY OF ADMIRALTY LAW AS RELATING TO SHIP ARREST NIGERIA U.K(ENGLAND&WALES)
• 2. JURISDICTION FOR SHIP ARREST
• 3. GROUNDS FOR EXERCISE OF SHIP ARREST PROCEEDINGS
• 4. MARITIME CLAIMS(PROPRIETARY & GENERAL MARITIME CLAIM)
• 5. MARITIME LIENS(INCLUDING STATUTORY MARITIME LIEN)
• 6. MODE OF PROCEEDINGS FOR ENFORCING MARITIME CLAIM

A BRIEF HISTORY OF ADMIRALTY LAW AS RELATING TO SHIP ARREST--NIGERIA U.K (ENGLAND & WALES). In Nigeria, prior to the passage of the Admiralty jurisdiction Decree (AJD) 1991, admiraltypractice had been stalked in a deep quagmire over uncertainty as regards, to mention a few, namely- matters to fall within her admiralty jurisdiction; and the appropriate court to entertain matters arising from maritime claims or disputes between the Federal High Court and State High Court.

All successive legislations (such as, the Administration of Justice Act (AJA) 1956; and the Administration of justice Act 1962, as then amended) all failed in addressing these pivotal issues. The status quo remains the same, until the emergence of the Admiralty Jurisdiction Decree(now Act) in 1991,which gives it a new lease of life .Currently, the Admiralty Jurisdiction Decree (AJD)1991,and the Admiralty Jurisdiction Procedure 1993, are the two main legislations in Nigeria governing her admiralty matters or proceedings.

In U.K(England Wales), apart from the fact that that it its’ admiralty law evolved from Roman law, the effort of the Parliament to regularise its’ admiralty practice began with the Administration of Justice Act 1956,which was substantially a re-statement of the International Convention Relating to the Arrest of Sea Going Ship(the Arrest Convention 1952) and this latter superseded by the Senior Court Act 1981,U.K(as amended).The dictum of Mr. Justice Scott in Star Marine Ltd.v.Nambuk Fisheries Co. Ltd. Is instructive in that respects.

At present, the Administration of Justice Act 1956, and the Senior Court Act 1981(as amended),remain the main legislations governing its’ admiralty affairs.

JURISDICTION   FOR SHIP ARREST. It is instructive to begin this by examining enpassant section 251 (1) of the Federal Republic of Nigeria constitution 1999, which states: "Notwithstanding anything to the contrary in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters"  --Para.

(g) Of the same section of the law, thus provides: "Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports,(including the constitution and powers of the ports authorities for federal ports) and carriage by sea."

As can be seen from the scenario painted above, only the "FEDERAL HIGH COURT" is vested with the exclusive jurisdiction over maritime or admiralty proceedings under the Nigeria law. On the other hand, the section 20 of the Senior Courts Act 1981, U.K vested admiralty jurisdiction in the "HIGH COURT" of England Wales "thus, on all matters contained in the section 2 of the same Act as earlier enumerated above. GROUNDS FOR EXERCISE OF SHIP ARREST PROCEEDINGS. Generally speaking, the corpus of maritime law between the duo-Nigeria & U.K are similar to a greater extent in principles, but not in practice. Having noted this, I shall examine them together, noting out their areas of divergence. In both jurisdictions, proceedings for ship arrest are only instituted on Maritime Claims. There comes the question, the meaning of Maritime Claim?

Under section 1 of the Admiralty Jurisdiction Decree 1991, is defined to"include":  MARITIME CLAIMS

• a. claims relating to proprietary interest in a ship;
• b. any jurisdiction on any matter relating to a ship prior to 1991;
• c. any action in any law relating to a ship involving limitation of liability;
• d. claims involving liability for oil pollution damage;
• e. matters arising from shipping and navigation of any inland waters declared as national waterway;
• f. matters arising within a federal port including claims for loss of or damage to goods.
• g. any documentary credit arrangement involving importation or exportation of goods from Nigeria in a ship;
• h. matters arising from the constitution and powers of the Nigerian Ports Authority or the National Maritime Authority;
• i. criminal causes arising from any matter referred to above; 
• j. any monetary or non-monetary agreement relating to carriage of goods by sea.

All the above are similarly contained in section 2(2) of the Senior Courts Act 1981 u.k(as amended)- (2)The questions and claims referred to in subsection (1) (a) "are";

• (a)any claim to the possession or ownership of a ship or to the ownership of any share therein;
• (b)any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
• (c)any claim in respect of a mortgage of or charge on a ship or any share therein;
• (d)any claim for damage received by a ship;
• (e)any claim for damage done by a ship;
• (f)any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of_
  • (i)the owners, charterers or persons in possession or control of a ship; or
  • (ii)the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
• (g)any claim for loss of or damage to goods carried in a ship;
• (h)any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
• (j)any claim-
  • (i)under the Salvage Convention 1989;
  • (ii)under any contract for or in relation to salvage services; or
  • (iii)in the nature of salvage not falling within
  • (i) or (ii) above; or any corresponding claim in connection with an aircraft;
• (k)any claim in the nature of towage in respect of a ship or an aircraft;
• (l)any claim in the nature of pilotage in respect of a ship or an aircraft;
• (m)any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
• (n)any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues;
• (o)any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
• (p)any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
• (q)any claim arising out of an act which is or is claimed to be a general average act;
• (r)any claim arising out of bottomry;
• (s)any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty.  Here is where the divergence lies: Under the Nigeria Admiralty Jurisdiction Decree 1991, an open-ended maritime claims are provided for, thus going by the word-"include" preceding the sub-paragraphs.

Whilst the U.K Senior Courts Act 1981, (as amended) provides a closed-list of maritime claim with the word-- are -preceding the sub-paragraphs-while defining its maritime claim. It is important to note that this distinction is of great importance. Also, the section 2 of the Admiralty Jurisdiction Decree 1991, of the Nigeria admiralty practice, further classified maritime claims into "proprietary (are matters directly relating to ownership of the res or ship) and general maritime clam (are matters arising from the operation or exercise of the res).

Propietary maritime claims are defined to mean:

• a. a claim for possession of a ship;
• b. title or ownership of a ship or of any share therein;
• c. mortgage of a ship or of any share therein;
• d. mortgage of a ships freight;
• e. claims relating to possession, ownership, operation or earning of a ship;
• f. claims for enforcement of judgments against a ship or other property in an Admiralty proceeding in rem;
• g. claims for interest in matters against or in respect of a ship.

On the other hand a, claim is a general maritime claim if it involves:

• a. collision claims;
• b. damage to a ship;
• c. loss of life or personal injury caused by a ship;
• d. loss of or damage to goods carried by a ship;
• e. claims arising from agreements for carriage of goods or persons by a ship or for the use or hire of a ship;
• f. salvage claims;
• g. general average claims;
• h. pilotage;
• i. towage of a ship or water-borne aircraft;
• j. goods supplied or to be supplied to a ship;
• k. claims in respect of the construction of a ship;
• l. claims for alteration, repair or equipping of a ship;
• m. claims for port charges or dues;
• n. barratry claims;
• o. a claim for disbursement on account of a ship;
• p. claims for insurance premiums due on a ship or its cargo
• q. claims for wages of crewmen;
• r. claims for forfeiture or condemnation of a ship or goods carried thereon;
• s. claims for enforcement of arbitral awards in proprietary maritime claims; and
• t. claims for interest in any proprietary maritime claim.

Thus, the Senior Courts Act 1981, of the u.k admiralty law does not recognise this dichotomy in her practice of maritime claims. it is pertinent to note that under both jurisdictions, a maritime claims cannot survive the original ship debtors .Thus, where the ownership of the ship has been transferred to another party before the arrest or saise conservatoire is effected the action for maritime claims cannot succeed against the subsequent buyer or charterer.

But, such claims can survive under   maritime lien. Then, what is maritime lien? Maritime lien is a secured claim against a ship (in some cases against cargo or freight) for service done to it or for damage caused by it-W.Tetley Generally, liability under maritime lien attaches to the ship and follows the ship wherever or whosever hands it passes to.

Thus a mere mutual sale agreement of the ship cannot terminate the liability arising under it, save in case of judicial sale. The underlying principle for this is that admiralty practice a ship given a legal personality, thus it incurs liability on its own independent of the owner. Under the section 3 of the admiralty jurisdiction Decree 1991(applicable in Nigeria), lien is defined and sub-divided into “maritime lien- and -statutory lien.

MARITIME LIENS These include:

• a. claims relating to salvage including life, cargo or wreck found on land;
• b. claims for damages caused by a ship;
• c. claims by the master or crew member of a ship for wages;
• d. claims by the master in respect of disbursement on account of a ship.

STATUTORY LIENS These include:

• a. claims arising from the supply of necessaries;
• b. claims for repairs to a ship;
• c. mortgage claims, etc, the list is not exhaustive.

However, although, maritime liens as well as ,the classifications are recognised under the Senior Courts Act 1981(as applicable in u.k),but they are limited to salvage ,damage ,seamen and master- wages ,maste's disbursement , bottomry and respondentia( are now obsolete).

MODE OF PROCEEDINGS FOR ENFORCING MARITIME CLAIMS Action in Rem(claim against the res or ship) and Action in Personam(claim against the person) are the two basic mode of enforcing maritime claims. In practice, especially between the two countries, all maritime liens (including statutory liens where the beneficial interest is vested in the ship owner) are enforceable through action in rem proceedings.

Under the Nigeria admiralty practice, all maritime claims contained under section 2 of the admiralty jurisdiction Decree 1991,as enumerated above ,are enforceable through action in personam save in the case of  

• (a) claim relating to: 
  • (i) the possession of a ship, or
  • (ii) a title to or ownership of a ship or of a share in a ship, or of share in a ship, or
  • (iii) a mortgage of a ship or of a share in a ship,
  • (iv) a mortgage of a ship's freight
• (b) a claim between co-owners of a ship relating to the possession, ownership, operation or earning of  Ship
• (c) a claim for the satisfaction or enforcement, of a judgement given by the Court or any court (including a court of a foreign country ) against a ship or other property in an admiralty proceeding in rem;  All these are enforceable through action in rem.

Under the U.k  admiralty law-Senior Courts Act 1981,similar provisions exist, except in cases of maritime lien and matters such as-claims relating to ownership and possession of a ship or any of its shares (sec.20sub-sec.2); claims in respect of mortgages or charges on ship (sec.20sub-sec2c); claims and question relating to possessions (sec.20(2)b) and claim for forfeiture and condemnation of a ship or goods(sec.20(2)s). Of the Act, are all enforceable in rem, all other maritime claims are enforceable in personam.

CONCLUSION:

A sum of the above analyses or appraisal is a pointer to the fact that the corpus of maritime law in both jurisdictions is six dozens and half of the other, apart from the fact that differ in their respective admiralty practices.

It is now more certain than before that the jurisdictional conundrum over admiralty proceedings in Nigeria between the state and federal high court is a foregone conclusion-now, the Federal High Court is vested with exclusive jurisdiction over admiralty proceedings.

After all said and done should conclude this article by saying that the admiralty practices in both jurisdictions is still in its embryo state and more need to be done in the area of legislations and regulations of their respective maritime practice.

MR.OYEGBAMI AHMED
MARITIMEPALACE [at] YAHOO [dot] COM
P.O.BOX 2329,SAPON ABEOKUTA, OGUN STATE,NIGERIA