Nigeria Ship Arrest Series

The Nigeria Ship Arrest Series is published by Akabogu & Associates, a Nigerian law firm. It will run weekly through the first quarter of 2021 to provide ship and cargo interests related to Nigeria with information to make quick decisions when faced with ship arrest situations.

Part One – What is Ship Arrest?

A unique feature of maritime law is that in applicable situations a claimant can obtain judicial arrest of a ship connected in some ways to his cause of action and thereby acquire prejudgment security for his claims. The ship is detained at the order of the court until her owners or other persons interested in her appear before the court to defend the claim and – if they so choose – provide security for her release.

In the event of the claimant’s ultimate success, the security provided or – where none was provided – the amount obtained from a sale of the ship will be applied towards satisfying the judgment.  Ship arrest is therefore a legal action in court for the purpose of obtaining a pre-judgment security for a claim so that a judgment given in favour of an arrestor may be secured by means of some guarantee acceptable to both the Court and the arrestor in place of the vessel. See MV Da Qing Shan v. Pan Asiatic Commodities (1991) 8 NWLR Pt 209.

This kind of pre-judgment security is not available for most other types of legal claims, and is a unique feature of admiralty law.

The option of ship arrest is useful but demanding as it is often invoked in urgent circumstances where the ship sought to be arrested is within jurisdiction within a limited window, often loading or discharging cargo and likely to sail out of jurisdiction anytime.

Actions ‘In Rem’ The legal procedure by which ship arrests are effected is known as an admiralty action in rem. The Supreme Court in the case of PACERS MULTI – DYNAMIC LTD V. THE M. V. “DANCING SISTER” & ANOR (2012) 4 NWLR (PT. 1289) 169 @ 187 defined an admiralty action in rem as “a proceeding against a ship, the res, where the ship is arrested. By the arrest, the owner of the ship is compelled to (either) appear and defend the ship.

 The owner is enjoined to answer to the judgment of the Court to the extent of his interest in the property.” It is a piece of legal machinery directed against a ship alleged to have been the instrument of wrong doing in cases. A judgment ‘in rem’ is a good judgment against the whole world. It actually means the ship is the means by which the wrong doer (the owner of the ship) committed the wrong to the claimant. It is accepted that an action in rem is procedural. See the judgment of the Court of Appeal in M.V BREUGHEL & ORS v. MONDIVEST LTD (2018) LPELR-44728(CA) CA/L/394/2016.

 The ship owner may take part in the proceedings to defend his property, or may chose not to, in which case judgment may be entered against the ship and it will be sold to liquidate the claim.

To arrest a ship therefore, the prospective arrestor and his lawyers must satisfy the admiralty court that that the claim in question is one for which the law permits an action in rem to be brought. See generally Section 2 AJA and Order 2 Rule 1 of the Admiralty Jurisdiction Procedure Rules (AJPR) 2011. This is not always straightforward and requires a competent, professional review of relevant conditions and facts of the case to avoid liability in wrongful arrest. This will be discussed in more detail later in the series.

 It suffices to point out that even the owner of a ship which has been arrested should seek competent, professional counsel to review the facts surrounding the arrest to determine what the options are and mitigate losses. It is often advisable to act quickly where a ship needs to be, or has been arrested to limit avoidable losses.

For more information contact info@akabogulaw.com, 2347043293271.

Next – Part Two: What Ships Can be arrested? Click here to subscribe to Nigeria Ship Arrest Series.