THE LIMITS OF COMMON LAW RULES OF SEAWORTHINESS IN THE CONTEXT OF NIGERIAN JUDICIAL DECISIONS AND THE MERCHANT SHIPPING ACT (2007)

Abstract

The ancient maritime law of yore which forms part of the received English common law stipulates that vessels/ships supplied by Ship Owners to Charterers, under Voyage and Time Charterparties, must be fit for the voyage or voyages envisaged, based on the prudent reasonable man standard. A vessel was usually hired for commercial operation for which the profit margin of the charterer will depend on the fitness and efficiency of the vessel, and, even where there are no express agreement, common law would readily imply a seaworthiness obligation on the Owner. A breach, depending on the circumstances, would lead to either termination or damages. However, the Nigerian courts in Coastal Shipping & Agencies Co. Ltd. v. Mandilas & Karaberiis Ltd., (1969) NSC 153, Narumah & Sons Ltd. v Niger-Benue Transport Company Ltd., (1989) LPELR-1940(SC) and NIMASA v Hensmor Nigeria Ltd. (2014) LPELR-22462(CA), respectively, appear not to be limited by the English common law rules in their application of the vessel’s seaworthiness obligation in Nigeria. In addition, Sections 216-249 of the Nigerian Merchant Shipping Act, No. 27 of 2007 (MSA 2007) contain more expansive obligations and rules which exceed the ancient rules. This Paper starts with an examination of the common law requirement of seaworthiness for vessels used in carriage of goods by sea, and also reviews the rationale behind the old rules. The Paper then critiques the Nigerian judicial decisions in Mandilas, Narumah, and Hensmor, and identifies the Nigerian divergence from the English rules. The author then reviews Sections 216-249 and 417 of the MSA 2007. In concluding, the Paper adopts the position that the current Nigerian statutory rules trumps the old common law because MSA 2007 has removed the determination of seaworthiness, safety, and fitness of sea-faring vessels, i.e.,, the safety of passengers, personnel (crew), and cargo on board the vessel, from the hands of private merchants, and conferred such on impartial and qualified ship surveyors and maritime experts.