Former Minister of Interior, Captain Emmanuel Ihenacho, has advised the judiciary to exercise caution and fairness in granting applications for the arrest of vessels on Nigerian waters. In addition, the judiciary should strive to develop a legal framework which is fair, equitable, humane and efficient for ship arrests.
Captain Ihenacho, a renowned master mariner and ship owner, gave the counsel in Abuja at the just-concluded maritime seminar for judges. He advised the judges not to become willing tools for arbitrary arrest of ships on Nigerian waters.
Former Minister of Interior, Captain Emmanuel Ihenacho, has advised the judiciary to exercise caution and fairness in granting applications for the arrest of vessels on Nigerian waters. In addition, the judiciary should strive to develop a legal framework which is fair, equitable, humane and efficient for ship arrests.
Captain Ihenacho, a renowned master mariner and ship owner, gave the counsel in Abuja at the just-concluded maritime seminar for judges. He advised the judges not to become willing tools for arbitrary arrest of ships on Nigerian waters.
Highlighting the grave consequences of arbitrary and indicriminate arrest of ships, Capt. Ihenacho said the arrest of a ship normally heralds the onset of a period of serious operating and trading difficulty for the carrier or ship owner. The arrest of a ship, he said, effectively disrupts the operation of the ship making it difficult for the ship owner or carrier to deliver on contractual obligations.
He explained that the interference with the trading of the vessel and the consequent failure of performance by her owners or charterers generally leads to the disruption of the vessel’s income stream as any pending or projected freight or hire income becomes difficult to realize since charterers and receivers would not want to honour further payment commitments until the pending matter is settled.
“Whilst the ship’s income expectation is thus interdicted by the incidence of an arrest, the operating cost obligations of the vessel will not necessarily abate as a result of the execution of the warrant of detention,” he further explained, adding that because of the nature of shipping operations where vessels should be maintained in operating condition at all times, whether trading or not, the operating cost is not only maintained during the period of arrest but may also escalate. Such costs, he explained, include crew wages and victualling requirements, surveys and certification since the ship must be kept in operating shape.
According to Ihenacho, the stoppage of the ship’s revenue inevitably worsens the carrier or ship owner’s position leading to deterioration of the ship’s standard of upkeep, safety and seaworthiness. Invariably, the crew would become restive and this may lead to Port State Control problem and more trouble for the ship owner. If the trouble continues, the seamen may also join the court action because of a backlog of unpaid wages.
“The absence of a revenue stream to assuage the operating service cost requirements invariably exacerbates the ship owner or carrier’s position inexorably leading to a deterioration of standards of upkeep, safety and seaworthiness on the vessel. The seamen onboard begin to fret and to suffer; Port State control interdiction becomes more likely, additional claims from aggrieved third party charterers, suppliers or receivers may also occur. As the agony progresses, the seamen onboard invariably join the court action at some point, placing a lien on the vessel in claim for back wages owed.”
This development, Ihenacho said, may make the ship owner’s business to slip into distress. “The vessel may be auctioned, the seafarers lose their jobs, the ship owner loses his business, all the multiplier benefits associated with the primary activity of shipping production become negatively impacted,” he stated.
The former Interior Minister regretted that this type of scenario has been a true reflection of what has been repeating itself in the nation’s legal jurisdiction which does not do the reputation of the nation any good.
He stressed that though a genuine claim could be brought against a ship and her owner when the need arises, the process of achieving this must be fair and equitable to the ship owner whose lifetime investments are at stake. This is because sometimes the claim being pursued may not be comparable to the value of the vessel which is casually arrested.
He advised ship owners and charterers whose ships trade to Nigeria to ensure that their P&I policies are fully updated to indemnify the ship to continue to trade in case of threat of arrest while any ensuing legal battle continues.
He said the judges have a major and significant role to play in deterring the fraudulent use of the arrest instrument as an easy tool for beating ship owners into submission in court cases where the claimant may not even have the case on his side.
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