NIGERIA Law and Practice Contributed by: Adedoyin Afun and Michael Abiiba, Bloomfield LP
8. Implications of Non- Performance, the IMO 2020, Trade Sanctions and the War in Ukraine 8.1 Force Majeure and Frustration For the non-performance of a shipping con - tract (such as late delivery, slow rate of loading or discharging) to amount to force majeure, the operative maritime contract must expressly or impliedly provide that the cause of any such non- performance would constitute force majeure. The party alleging force majeure must show that: • there has been a force majeure event that falls within the meaning of the clause in the charterparty; • the non-performance is traceable to the force majeure event; and • notice requirement in the charterparty, if any, has been satisfied. Furthermore, for non-performance to amount to frustration, the cause of the non-performance must have been a supervening event (such as statutory impossibility, an outbreak of war or government acquisition of the subject matter of the contract) destroying a fundamental assump - tion on which the shipping contract is predicated on. Where the supervening event is one which, by the terms of the contract, the parties contem - plated the possibility of such an intervening circumstance arising, or one of the parties had deliberately brought the supervening event, or the intervening circumstance is one not so fun - damental as to destroy the basis of the shipping contract, the non-performance arising from such supervening event cannot amount to frustration of the shipping contract. Similarly, a shipping contract cannot be frustrated where the exe -
cution by one party becomes more difficult or expensive than originally anticipated. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil By Section 335(1)(a) of the MSA, provisions of the International Convention for the Prevention of Pollution from Ships 1973/1978, of which the IMO 2020 is a product, apply in Nigeria. Furthermore, the NIMASA and the Nigerian Ports Authority (NPA) have made commitments towards ensuring the implementation and enforcement of the IMO 2020. NIMASA is responsible for the enforcement of the sulphur-content limitation and the limit is the same as the global limit and IMO Standard, 0.5%. Although there have been no large-scale enforce - ment actions, NIMASA engages with the Nigeri - an Upstream Petroleum Regulatory Commission (NUPRC) and the Nigerian National Petroleum Corporation (NNPC) to ensure that marine fuel to be refined or imported meets the IMO standard. Lastly, the NIMASA has installed Tytro X on ves - sels, which will helps in monitoring fuel con - sumption and determine the sulphur content in the fuel. There have been no known proceed - ings/sanctions that have taken place because of a violation of the sulphur limitation. 8.3 Trade Sanctions Nigeria has not incorporated any of the inter - national trade sanctions. The main legislation governing sanctions and export controls is the Nigerian Customs Service Act 2023 (NCA). Under the NCA, the Nigerian Customs Service has legal authority to act on behalf of Nigeria in all customs-related matters. Whilst, as far as is
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