The Nigerian Maritime Law (2)

In the same vein, as indeed is the case with other progressive Registries formerly under British dominion, the South African Ship Registration 1998, also admits as registrable South African-owned ship which “is owned by three or more persons as joint owners of the ship, where the majority of those persons are South African nationals; or is owned by two or more persons as owners in common, where the majority of the shares in the ship are owned by South African nationals”.
NIMASA Act 2007 clearly follows these international standards which every-thing being equal will definitely encourage and attracts more tonnage.

REGISTERS MAINTAINED BY NIGERIAN SHIPPING REGISTRY
Register for Merchant Ships
Register for Ships on Bareboat Charters
Register for Ships under Construction
Register for Fishing Vessels
Register for FPSO and FSO
Register for Licensed Ships below 15 gronn tons
Vessels registered in any the Registers listed above will be entitled to fly the Nigerian flag as Nigerian vessels in the manner specified in the MSA. In some Administrations, the Register for Merchant Ships is further divided into three Registers viz, Register for Ships owned by citizens of the flag country and Register for Vessels jointly owned by flag citizens and foreigners. That system is very good for ease and accurate statistic. Vessels registered under Register for Bareboat Charters would normally have official numbers distinct from official numbers for regular registration.

REGISTRATION OF CABOTAGE VESSELS
Quite apart from the central ship registry which grants flag status to a ship, NIMASA Act and the MSA recognize and require compliance with Cabotage Act and its Registrations. Section 17(3) of MSA and Section 34(4) of the NIMASA Act both expressly acknowledge that vessels registered under the Nigerian flag and intending to operate within the coastal and inland waters of Nigeria must comply with the Cabotage Act and its regulations. Cabotage Act requires mandatory registration of cabotage vessels and the owning companies with NIMASA.
NIMASA Act under S. 34(4) has finally put paid to the debate whether a Nigerian flagged vessel is subject to the Cabotage Act. Put differently, whether a vessel having been registered in the Nigerian Ship Registration Office does have a license to trade both in international waters and Nigerian coastal without complying with requirements of the Cabotage Act. Section 34(4) reproduced hereunder is very clear and requires no elaboration “A ship registered under this section shall comply with the requirements of the Coastal and Inland Shipping (Cabotage) Act 2003 if such ship is to operate in Nigerian coastal and inland waterways”. Similarly, the MSA under S.17(3) states that:
“Notwithstanding the provision of this Act relating to registration and licensing of ships, any vessel intending to operate within the coastal and inland waters of Nigeria shall obtain operational permits from the relevant agencies of Government”.
The Coastal and Inland (Cabotage) Shipping Act 2003 which is the specific legislation on coastal and inland trade requires that “permit” to be in the form of a registration certificate in the Special Register for Cabotage Vessels.
Numerous provisions under the Cabotage Act particularly sections 22 and 29 requires the Registrar of Ships to maintain a Special Register for Cabotage Vessels and Ship owning Companies. The Revised Guidelines on Implementation of Cabotage Act issued in April 2008 emphasis further those vessels whether or not registered under the Nigerian flag the Special Register for Cabotage. The Guidelines further states that the following Cabotage Registers are maintained in the Nigerian Ship Registration Office:
Special Register for Cabotage (Nigerian Wholly Owned Vessel)
Special Register for Cabotage (Bare-boat Chartered Vessel)
Special Register for Cabotage (Joint Venture Owned Vessel)
Special Register for Cabotage (Fully Foreign Owned Vessel) and
Special Register for Cabotage (Exempted Vessels)
The import of this is that the Nigerian Ship Registration Office quite apart of the central register discussed in the preceding paragraphs should have another set of register for cabotage vessels for the relevant category. The categories of Cabotage Registers specified in the Cabotage Guidelines covers the whole spectrum of ownership structure of vessels currently engaged in coastal trading.

CABOTAGE REGISTRATION AND WAIVER APPROVALS
It is pertinent to mention that what makes a vessel or company eligible to carry on cabotage shipping in Nigeria is the Cabotage Registration Certificate and not the Waiver required to be granted by the Minister where necessary. Obtaining a waiver if need be is simply a step towards eligibility for registration of vessels and participation in coastal shipping. The operative language in the Waiver provisions of the Cabotage Act (see sections 9-11) are “duly registered”, a qualification the Senate in their wisdom inserted during consideration of the Cabotage Bill at the Senate marine technical committee stage. The Cabotage Guidelines under the relevant sections on procedure for registration makes this point but for ease of enforcement, all waiver applications must be accompanying documents to the main application for registration of vessels in the Special Cabotage Register. That way a copy would be submitted to the Registrar of Ships who, upon indication from the Cabotage Unit that all eligibility criteria have been satisfied would simply enter the name of the Vessel and its owner into the submit a separate application for registration after obtaining waiver. Waiver approvals should therefore not be submitted to applicants directly but forwarded to the Ship Registration Office for registration of the vessel in the appropriate Cabotage Register. This procedure which was introduced sometimes this year to the Cabotage Unit if instituted will cure the erroneous belief that Waiver by itself without more entities a vessel to trade in the cabotage trade area and the Special Cabotage Register will at the same time have lots of entries.

REGISTRATION PROCEDURE
Applications for the Registration of Nigerian Ships are made to the Registrar of Shipping in Lagos. Nigeria does not operate an open registry and therefore a Nigerian Consul is not permitted to accept registration documents and cannot issue certificates. However, the Registry may temporarily accept facsimile copies of documents supporting an application for registration but it is assumed that the originals will follow shortly thereafter in order for the vessel to be registered.
The Nigerian Registry of Ships makes a distinction between provisional and permanent registration. Provision Registration may be granted to a ship to enable it to sail and operate within territorial waters, pending the issuance of a permanent certificate of registration.

DOCUMENTATION REQUIRED TO SUPPORT APPLICATION FOR SHIP REGISTRATION
The under listed documents are required by the Registrar of ships to support an application for Registration.
If it is a corporate applicant:
Its letter of application on its company letter headed paper;
Completed Ministry of Transport Registry Forms;
Certificate of Incorporation;
Memorandum and Article of Association;
Current list of Directors of the Company (Form C07);
Current Tax Certificate of the Company and its directors respectively;
Deletion Certificate from last registry (that is if the ship was previously registered in another country);
Tonnage Measurement Certificate issued by a Nigerian registered surveyor;
Builder’s Certificate if it is a new ship;
Bill of Sale if the ship is purchased second hand;
Application for the allotment of International Code signal in Form Registry 19;
Declaration of the Ship’s name;
Payment of Registration fees (Depending on size of the ship);
Present location of ship and its employment;
Copy of last Radius Safety Certificate, Load Line Certificate and Safety Construction Certificate;
If the application is made by an individual owner he will be required to submit the following documents in addition:
Declaration of an individual owner or transferee;
Particulars of citizenship;
Personal Income Tax Clearance Certificate;
Some maritime practitioners opine that before a ship can be registered in Nigeria it must be classified as a member of the International Association of Classification Societies. Experience suggests that although this can be an advantage, it is certainly not a mandatory requirement.
SHIP REGISTRATION FEES
The fees provided under the MSA are obsolete and therefore are revised from time to time by way of circulars, to reflect current economic indices. The current fees are those recommended by the ministry of Transport in 1995 even though it is projected that a new schedule of fees will come into force before the end of May 2000. Nevertheless the existing fees of 1995 remain effective until further notice. All fees are payable to the Registry and quoted in Nigerian currency.
Existing Fees in Respect of Ship Registry:
Part IX
Fees for Change of Name of a ShipN500.00
For a ship under 600 tonnesN500.00
For a ship 600 tonnes but under 1,600N500.00

For a ship 1,600 tonnes but under 3,000N500.00
For a ship 3,000 tonnes but under 5,000N500.00
For a ship 5,000 tonnes but under 6,000N500.00
For a ship 6,000 but under 10,000N500.00
For a ship 10,000 tonnes but under 20,000N500.00

Nigerian Licensed Fees
For issue of Original LicenceN500.00
For under 50 tonnesN500.00
For a ship 50 tonnes but under 100 tonnesN500.00
For a ship 100 tonnes but up to 200 tonnesN500.00
For every 100 tonnes or a part of 200 tonnesN500.00
For each endorsement on a licenceN500.00

Part X
On the Initial Registry and Transfer of Registry
Ship of 500 GMT and underN1000.00
500 GRT but under 700 GRTN2500.00
700 GRT but under 1,000 GRTN3500.00
1,000 GRT but under 2,000 GRTN5000.00
For every 500 tonnes or part of 500
tonnes in excess of 2,000 tonnesN200.00

BAREBOAT CHARTER REGISTRATION
The Nigerian Registry of Ships grants recognition to Bareboat Charters however before such ships can be registered, a notarized Power of Attorney must be tendered to the Registrar of Ships authenticating the arrangement. In addition the Registrar must be given full proof that during the period of the Charter, the first registration has been suspended as Nigerian law does not patently recognize dual registration. A deletion certificate from the last registry of entry will suffice as evidence of suspension.
However, the Government Inspector of Shipping (GIS) is known to give approval to Chartered-in foreign ships to operate within Nigerian territorial waters and this is renewable yearly. These ships may during the period of their licence, continue to fly the flag of their home registries. It has also been recommended that Nigeria adopt the system known as “PARDON” which was adopted in Mexico; whereby Bareboat chartered vessels may be registered in the Nigerian Register and allowed to enjoy all the privileges of Nigerian Registration i.e. Cargo Reservation, Low Cost Bunker, which all privileges would be lost and the difference in the cost of the Bunker shall be reimbursed. This system would definitely increase Nigeria’s Maritime tonnage without the necessity of going through the initial capital outlay of outright purchases.
The following documentation is required in support of the application:
Vessel Age;
Current Tax Clearance Certificate of the Company and its Directors
Survey Report indicating Condition of Ship
Copies of all Statutory Certificates
Charter Party
Provisional Registration Certification
Certificate of Build for newly Built Ships
Corporate Applicant must submit Memorandum and Articles of Association.
Names and address of the Charterer’s shareholders.

EFFECT OF REGISTRATION ON MARITIME MORTGAGES IN NIGERIA
Maritime mortgages are created in Nigeria by submission of the Mortgage agreement, and letter of consent to Ship registry. Subsequent mortgages can also be created on the same vessel and they must also be registered. Registration of mortgages and liens is paramount because priority is determined by the date of registration, as opposed to the date of creation of the mortgage.
A registered mortgagee of a ship dispose of the ship in respect of which is registered once his power of sale becomes exercisable provided he is first in turn. If there is a prior registered lien or mortgage he can only exercise his power of sale through an order of a Court of competent jurisdiction. In Nigeria, the appropriate Court of jurisdiction vested with maritime and an admiralty matter is the Federal High Court.

LEGAL REGULATORY FRAMEWORK OF NIMASA
Shipping is governed by international rules and regulations that are incorporated ino national laws for such conventions to be enforceable. The present management has recognized the poor status of domestication of IMO conventions by Nigeria and resolved to correct this anomaly from the onset. A legislative advocacy team was set up in the agency to coordinate and ensure that all steps are taken within and outside the agency and the National Assembly to facilitate the enactment of bill establishing the agency and comply with all relevant IMO and other international conventions. The agency has attained the unprecedented record of legislative success since its existence thus: The Nigerian Maritime Administration and Safety Agency Bill have been passed into law by both houses of the National Assembly. International conventions on the Civil Liability for Oil Pollution Damage 1999 is now an Act of the Federal Republic of Nigeria; International conventions on the establishment of an International Fund for Oil Pollution Damage (IOPC) ’92 is now an Act of the Federal Republic of Nigeria; and International convention for the prevention of pollution from ships as modified by the protocol of 1976 (MARPOL 73/78) has been passed by the National Assembly and are awaiting presidential assent.

NIWA:
NIWA was formerly the Inland Waterways Department (IWD), which was the oldest Operational Department in the Ministry of Transport from 1956 up to late 1997. It is a statutory body and is 100% owned by the Federal Government of Nigeria as a parastatal under the Federal Ministry of Transport. NIWA was established through Decree No. 13 of 1997 and operations commenced fully in 1998 under the supervision of a Managing Director and four (4) General Mangers. The head office is located at Adankolo New Layout, Lokoja, Kogi State. The Authority is responsible for approximately 3, 000 kilometers of navigable water course in its natural form. With this length, Nigerian inland waterways are considered to be some of the longest in the world, and include the River Niger, the third longest river in Africa, which is about 1,271.3km in length.

The Decree establishing NIWA clearly spells out the objectives, powers, functions and management structure of NIWA. It also has ten (10) Area Offices and a liaison office at Maritime House, Abuja. The Area Offices are: –
• Lokoja Area Office;
• Lagos Area Office;
• Calabar Area Office
• Port-Harcourt Area Office;
• Makurdi Area Office;
• Onitsha Area Office;
• Warri Area Office;
• Yelwa/Yauri Area Office;
• Igbokoda Area Office; and
• Baga Area Office.

The Decree spells out the major business activities of NIWA is to: –
– Improve & develop Inland Waterways for Navigation.
– Provide an alternative mode of transportation for evacuation of economic goods & persons.
– Execute the objectives of the National Transport Policy as they concern NIWA.
– Issue and control licenses for inland navigation, piers, jetties, dockyards etc.
– Operate ferry services within the inland waterways system.
– Finance capital and maintenance dredging.
– Undertake hydrological and hydrographical survey.
– Approve and control all jetties and dockyards.
– Undertake acquisition, leasing and hiring of properties etc.
The National Inland Waterways Authority (NIWA) was established by Decree No. 13 of 1997 with a clear mandate to manage Nigeria’s vast inland waterway resources. The Decree vests in NIWA the power of exclusive management, direction and control on the Nigerian inland waterways. This power is exercised on Nigeria’s 3000km navigable waterways from the Nigeria/Niger and Nigeria/Cameroon borders to the Atlantic Ocean. Nigeria is blessed with a river configuration very suitable for North-South movement of people and goods. Toward the development of the Nigerian inland waterways, NIWA encourages private investments on the inland waterways in pursuit of government’s policy of Public Private Programme (PPP).
According to the section 2 of the National Inland Waterways Decree, the objectives of the Authority shall be to; (a)improve and develop inland waterways for navigation, (b)provide an alternative mode of transportation for the evacuation of economic goods and persons, and (c)execute the objectives of the national transport policy as they concern inland waterways. Meanwhile, among the functions of the Authority as enacted in Part II, sections 8 & 9 of the same Decree;
(a)        provide regulations for inland navigation;
(b)        ensure the development of infrastructural facilities for a national inland water
ways network connecting the creeks and the rivers with the economic centres using the river-ports as nodal points for intermodel exchange; and
(c)        ensure the development of indigenous technical and managerial skill to meet the challenges of modern inland waterways transportation.

Other functions and powers of the Authority shall be to:
 
(a)        undertake capital and maintenance dredging;
(b)        undertake hydrological and hydrographic surveys;
(c)        design ferry routes;
(d)        survey, remove, and receive derelicts, wrecks and other obstructions from in land waterways;
(e)        operate ferry services within the inland waterways system;
(f)        undertake installation and maintenance of lights, buoys and all navigational aids along water channels and banks;
(g)        issue and control licences for inland navigation, piers, jellies, dockyards;
(h)        examine and survey inland water crafts and shipyard operators;
(i)         grant permit and licences for sand dredging, pipeline construction, dredging of slots and crossing of waterways by utility lines, water intake, rock blasting and removal;
(j)         grant licences to private inland waterway operators;
(k)        approve designs and construction of inland river crafts;
(l)         approve and control all-
(i)   jetties, dockyards, piers within the inland waterways;
(ii)  advertising within the right-of-way of the waterways:
(m)      reclaim land within the right-of-way;
(n)        undertake the construction, administration and maintenance of inland river-ports and jetties;
(o)        provide hydraulic structures for river and dams, bed and bank stabilisation, barrages, groynes;
(p)        collect river lolls;
(q)        undertake the production, publication and broadcasting of navigational publi
cations, bulletins and notices, hydrological year hooks, river charts and river maps;
(r)         carry out consultancy and contractual services;
(s)        represent the Government of Nigeria at national and international commissions that deal with navigation and inland water transportation;
(t)         subject to the provisions of the Environmental Impact Assessment Act, carry out environmental impact assessment of navigation and other dredging activi
ties within the inland water and its right-of-ways;
(u)        undertake erection and maintenance of gauges, kilometre boards, horizontal and vertical control marks;
(v)        advise government on all border mailers that relate to the inland waters;
(w)       undertake acquisition, leasing and hiring of properties;
(x)        run cruise boats;
(y)        carry out boat repairs, boat construction and dockyard services; and
(z)        clear water hyacinth and other aquatic weeds.

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