NIGERIA Law and Practice Contributed by: Adedoyin Afun and Michael Abiiba, Bloomfield LP
parties who may limit their liability for maritime claims, under the MSA, are ship-owners (including the own - ers, charterers, managers of a ship), salvors and their insurers. Section 352 of the MSA provides for claims to be sub - ject to limitation of liability. These claims include: • loss of life or personal injury or loss of or damage to property, occurring on board or in direct connec - tion with the operation of the ship or with salvage operations, and consequential loss resulting there - from; • loss resulting from delay in the carriage by sea of cargo, passengers or their luggage; • removal, destruction or rendering harmless of the cargo of the ship; and • floating platforms constructed for the purpose of exploring or exploiting the natural resources of the seabed or the subsoil thereof. The increased liability for maritime claims, as provided in the amendment to the 1996 Protocol, which entered into force on 8 June 2015, is inapplicable in Nigeria because Section 357 of the MSA expressly states the limits under the 1996 Protocol. 3.4 Vienna Convention on the Law of Treaties Although Nigeria ratified the Vienna Convention on the Law of Treaties (VCLT) in 1969, making it binding at the international level, it is not enforceable in Nigeria as it is yet to be made a law of the National Assembly as required by Section 12 of the Constitution. However, this does not mean the VCLT is irrelevant. Most of its interpretive rules are widely accepted as codifications of customary international law, which automatically form part of Nigerian common law unless displaced by statute. On this basis, Nigerian courts applying Nigerian law have cited and relied on VCLT provisions as persuasive interpretive tools. In the case of Abacha v Fawehinmi (2000) 6 NWLR 228, the Supreme Court demonstrated judicial willingness to invoke the VCLT when clarifying the scope of Nige - ria’s international obligations. Thus, Nigerian courts interpreting the LLMC, which is part of Nigerian law, may use VCLT principles to
ensure conformity between domestic implementa - tion and the Convention’s international intent. This approach aligns conceptually with the UK Supreme Court’s reasoning in MSC Flaminia , where Articles 31 to 33 of the VCLT were applied to resolve ambiguity under the LLMC regarding charterer rights. Nonetheless, the VCLT’s use in Nigeria remains per - suasive rather than mandatory. Nigerian courts remain bound, first and foremost, by the text of the domes - ticated statutes and, where a conflict arises, Nigerian judges tend to prioritise the enacted legislation over external interpretive doctrines. 3.5 Procedure and Requirements for Establishing a Limitation Fund Where an eligible party anticipates that a claim is likely to be made against them by any other party under any maritime law, including the MSA, they may apply to the FHC to determine whether their liability(ies) may be limited under law and the extent of the liability. The AJPR provides that a limitation of liability pro - ceeding shall be commenced by filing an originat - ing summons alongside an affidavit, copies of all the exhibits to be relied upon, and a written address at the registry of the FHC. Such an action is commenced as an admiralty action in personam against at least one of the (possible) claimants in a maritime claim (as a defendant), who must be served before the case may be set down for hearing or determination given in default of appearance. After determination of the applicant’s entitlement to a limitation of its liability, the court may order (i) the constitution of a limitation fund for the payment of claims in respect of which the applicant is entitled to limit their liability, and (ii) advertisement of its determi- nation to allow anyone with a maritime claim against the vessel or any other parties previously named to apply to set aside, vary the court’s determination or lodge its interest. The order for the constitution of the limitation fund would also specify the method of calculating the fund, usually based on the vessel’s tonnage and the appli - cable limit prescribed in the MSA.
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