Joy Dimka, Legal Officer, Nigerian Shippers' Council.
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Wreck removal can boost the sustainability of Nigerian maritime 11 Oct 2021
The Federal Executive Council (FEC) recently gave approval for the removal of wrecks within Nigeria’s territorial waters. The Nigerian Maritime Administration and Safety Agency (NIMASA) has begun the exercise, which is geared towards improving safety and ease of navigation in the country’s waterways.
According to the Nigerian Ports Authority (NPA) Act, the NPA is responsible for all wrecks blocking the access channels of navigation within the Nigerian waterways. NIMASA has the statutory responsibility for wrecks outside the access channels. This extends from the baselines to the territorial waters and down to the contiguous zone. NIMASA’s mandate also covers the exclusive economic zones, to the extent that the wreckage obstructs safe navigation.
Despite a potential conflict arising from the overlap in the jurisdictions of the NPA and NIMASA over removal of wrecks, it is commendable that both federal institutions have cooperated on the exercise of wreckage removal. The Nigerian Inland Waterways Authority (NIWA) is also in agreement with NIMASA being functionally charged, in this instance, with wreck removal in the country’s waterways.
In the UK Merchant Shipping Act 1894, “wreck” is defined as including “... jetsam, flotsam, lagan, and derelict in or on the shores of the sea or any tidal waters”. Jetsam refer to various goods thrown into the sea to lighten the vessel while flotsam are materials which float when a ship sinks. Goods from sunken ships that are heavier than water which has been buoyed to prevent it from sinking are known as lagan. And derelicts are ships when they are not in the possession or control of their owners.
A shipwreck in Lagos’ waterways as photographed by AFP on April 8, 2019
Nigeria was the eighth country to ratify the Nairobi International Convention on the Removal of Wrecks (Nairobi Convention), which entered into force on the 14th of April, 2015. The Nairobi Convention is not yet in force in Nigeria. It needs to be domesticated in the judicial system and the body of laws in Nigeria. The country’s Merchant Shipping Act (2007) has some provisions that address wreck removal, but a concise legal framework dedicated to this field will go a long way in establishing a well-functioning system of wreckage removal in Nigeria.
The convention provides the fundamentals which could constitute an action or place a responsibility on the coastal state to act. The following represents a logical series of issues which a government and those representing an owner’s interests would need to consider under the convention:
Is the reported wreck located within the area covered by the convention? Article 1 of the convention defines what it calls “the Convention area” as being the exclusive economic zone or an area beyond and adjacent to the territorial sea but not extending more than 200 nautical miles from the coast excluding territorial waters.
Is the sunken or stranded ship a ‘wreck’? The resulting definition from protracted debates at legal committees concerned with wreckage includes sunken or stranded ships or any parts thereof, as well as things washed off ships, including cargo.
Is there an obligation to report that a maritime casualty has occurred and that the vessel has become a wreck? Article 5 of the convention places an obligation on the master and operator of a ship to report when a maritime casualty has occurred and that the vessel has become a wreck as a consequence.
Does the wreck represent a hazard to the coast area? If a wreck is determined to be a hazard, then various rights and obligations arise. If not, then the convention does not apply. Article 1(5) of the convention defines a hazard as any condition or threat that poses a danger or impediment to navigation or may reasonably be expected to result in major harmful consequences to the marine environment or damage to the coastline or related interests of one or more states.
If the wreck does indeed represent a hazard, then what rights and obligations arise? In this case, the ‘Affected State’ has an obligation to ensure that all reasonable steps are taken to mark the wreck in conformity with the internationally accepted systems of buoyage. There is a further obligation on the Affected State to publish, for the benefit of all mariners, particulars of the marking of the wreck (Article 8).
Apart from the problem of marine pollution, which is a serious challenge the Nigerian government needs to counter, it is important that the country’s territorial waters are liberated from harmful objects and debris, especially seeing that the government also has intentions of investing in a national ship liner.
A project as responsive as building ships and reviving ship liners in Nigeria places the duty of care on all stakeholders. This will require first and foremost a non-hazardous marine environment in order to launch the sea-going vessels.
Wreck removal can be expensive, depending on the nature of the wreckage. If the wreckage is afloat, then it could be easy for tugboats, employed for sanitization, to pick up the wrecks and take them ashore. However, if the wreckage is sunken, heavy or is seen to be an outright threat to navigation, it could sometimes involve cutting the hull into easily handled sections or refloating the vessel and scuttling it in deeper waters.
After the Exxon Valdez tragedy in 1989, which stands as the most expensive wreck removal operation in all of history, the recent ship wreck of MSC Napoli stands as the second most expensive at a cost of 120 million British pounds. The ad hoc exercise that NIMASA is now undertaking will potentially lead to the establishment of a system of wreck removal in Nigeria’s territorial waters over the coming years. As opposed to reactive efforts, we would likely develop proactive measures on how to handle and maintain a sanitized marine environment free of wreckage.
It is estimated that the NIMASA project will rake in about N30 billion from over 200,000 tonnes of metal waste. This establishes the viability of investments in wreck removal in Nigeria’s waterways. There are many opportunities for investments in our maritime industry which have yet to be harnessed. Some of the impediments include the absence of legal frameworks, including the domestication of the Nairobi Convention, as well as the fusion of regulatory and operating functions. More private sector participation must be encouraged. Such investment is in dire need of, given the revenue challenges the government has been grappling with in recent years, made worse by the Covid-19 pandemic.
Lack of safety and obstruction on Nigerian waterways would make the country’s maritime industry uncompetitive. The financial costs of being held liable for maritime accidents can also be significant, quite apart from the country gaining notoriety for maritime insecurity. The ongoing wreckage removal by NIMASA is a starting point. Private sector participation should follow to engender environmental sustainability in the Nigerian maritime industry. Appropriate policies should encourage participatory, demand-driven and sustainable development in the industry.
Joy Dimka is a Legal Officer at the Nigerian Shippers’ Council.
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