Symphony and Maintenance of Seized Ships: Experimenting U.S Maritime Court’s Practice in Nigeria

Abstract

Maintaining and managing a seized ship is an important aspect of the Maritime Industry globally.In countries like the United States, measures have been put in place to ensure that when ships are seized in lieu of a maritime proceeding, such ships are adequately managed and maintained for that period.In contrast, when a ship is seized in Nigeria, there is little to no guarantee that the vessel will be maintained efficiently by the body responsible for its management.It is therefore essential to investigate the reason for such lack of guarantee and how it can be solved to improve the state of affairs in the country's maritime sector.This research adopted a doctrinal method of research through analysis of statutory provisions as well as cases to use the power of reasoning to collect data from the use of Law textbooks, articles in journals, and various online resources.This paper aims to is to discuss the instances where states can seize ships, the procedure of arrest in Nigeria, forfeiture of ships and make a comparison to the procedure adopted in the Maritime Sector of the U.S, the challenges faced by the Nigerian Maritime Sector and recommendations on how ships can be better maintained through the establishment of Maritime or Admiralty Court and the posting of a bond by the owner of a seized ship for its release pending the determination of the maritime proceedings in court as practice in the US.

A. Introduction
The Symphony of the Seas is the fourth Oasis-class cruise ship built by STX France for its customer Royal Caribbean International. 1 It was built at STX"s Saint-Nazaire shipyard and is the world"s biggest cruise ship.It is 362m long, 70m-tall and 66m wide, with a gross registered tonnage of 228,081ft. 2The vessel can accommodate over 6,000 passengers in 2000-plus cabins, available in different configurations.Over 2000 international crew members serve the passengers. 3With this background in mind, given how large the ship is, the cost of managing it will not be a simple feat.Ship Maintenance costs form a significant part of the overall operating costs in ship operations, 4 especially if such a ship is seized or arrested for a maritime claim pending the time such a case is in court.
The Nigerian Navy is now responsible for maintaining confiscated ships in Nigeria.The Navy has claimed that maintaining confiscated warships has an adverse financial impact because so much money is spent on maintaining and operating them to keep them in excellent condition. 5Additionally, they regret that court procedures are delaying the destruction of seized vessels under their control. 6ith this background in mind, the paper demonstrates novelty as it investigates how a large cruise seized or arrested for breaching the relevant provisions of the law can be better maintained by establishing a Maritime or Admiralty Court.It considers the plausible way out of the dilemma of maintaining a large cruise where seized or arrested.The aim of this paper, therefore, is to discuss the instances where states can seize ships, the procedure of arrest in Nigeria, make a comparison to the procedure adopted in the Maritime Sector of the U.S, the challenges faced by Nigerian Maritime Sector and make recommendations on how ships can be better maintained with lessons learned from the U.S.
This paper considers a comparative analysis of the legal framework concerning arrest of ships in Nigeria and United States of America.Admiralty Jurisdiction Procedure Rules (AJPR) 2011 and Manual for United States Marshals are some regulations considered.Essentially, a micro comparison mechanism is also adopted to address the issue of arrest and, indeed, maintenance of seized ships.By micro comparison, we mean a system of comparative law that adopts the approach used in other 1 Ship Technology, Symphony of the Seas Cruise Ship accessed on January 20, 2022 at https://www.Ship-technology.com.
3 Ibid. 4IMO.International Safety Management (ISM) Code/Guidelines on implementation of the ISM Code, London, 1997.
6 Udora Orizu, Navy: Maintenance of Seized Vessels Affecting our Finances (2021) available at https://www.thisdaylive.com/index.php/2021/11/24/navy-maintenance-ofseized-vessels-affecting-our-finances/jurisdictions of interest to address specific problems to solve a given problem. 7Since this paper mainly identifies the advantage of effectively implementing the two countries' legal framework under consideration, the micro-comparison method is deemed apt.
The novelty of this research is analyzing the seizure of vessels in Nigeria since, in practice, there is hardly any guarantee that the vessel will be efficiently maintained by the agency responsible for its management.It is therefore important to investigate the reasons for such lack of assurance by comparing instances where the state may seize a vessel, the procedures for arrest in Nigeria, the seizure of vessels, and comparing with the procedures adopted in the US Maritime Sector.

B. Discussion 1. Commencement of Action in Admiralty Jurisdiction a. Writ of Summons
An action in rem is commenced by a writ of summons8 which shall be accompanied by a Statement of Claim and a copy of every document to be relied upon at the trial.Within seven days of serving the summons, the Plaintiff must file written witness statements that will be admitted into evidence under oath at the trial.The summons must be in Form 1 of the schedule to the Rules and name a specific defendant pertinent to the litigated maritime claim.The specification may mention who owns the ship, related.As a result, the ship or other property must be named in the writ of summons in a procedure that was started as an action in rem.This is because an action in rem is against a thing, a ship.There is thus a distinction between an action in rem and an action in personam.9

b. Witness Statement
The witness statement needs not to be on oath but must be adopted on oath at the trial. 10Where the witness is not available in Nigeria as of the time filing the court process, the writ of summons can be filed, and the witness statement on oath may be afterward.Therefore, the witness should not be in Nigeria when the action in rem is filed.

c. Filling of Defence
Defense is the response of the person against whom an action is filed in court.The Admiralty Jurisdiction Procedure Rules 2011 is silent on the modality the Defendant is expected to react to the action.On this score, the provisions of the Federal High (Court Civil Procedure) Rules 11 would apply to such instances, the Federal High Court being the jurisdiction to hear admiralty matters in Nigeria.This is one of the trajectories of the practice of the Federal High. 12

The Arrest of Ship in Nigeria
The arrest of a ship presupposed the detention of ships based on the order of a court of competent jurisdiction to secure a maritime claim.However, the arrest of a ship in this context does not include the seizure of a given ship in execution or satisfaction of a judgment or other enforceable instrument. 13hile the arrest of the ship is considered a powerful weapon and veritable tool to secure the appearance of ship owners and availability of security for the judgment in maritime proceedings, 14 there is the serious challenge of maintenance of such seized ship pending the outcome of the maritime proceeding. 15Therefore, the ship must be kept in normal and safe working conditions to improve its effectiveness.Where this is not achievable, other options should be available instead of exploring its value while the maritime proceedings last.This will also allow the party that will take custody of the ship after the proceedings to maximize the gain of the ship.Non-usage or proper maintenance of ships is of allowing ships to be wallowing, thereby losing huge commercial interests. 16

The Legal Framework of Arrest of Ship in Nigeria
The Admiralty Jurisdiction Act (AJA) 17 and the Admiralty Jurisdiction Procedure Rules (ACJPR) 18 constitute the legal framework for admiralty matters in Nigeria, with the Federal High Court as the requisite court jurisdiction on admiralty jurisdiction, 19 being the court of first instance in admiralty matters.
12 Similar practice is application in election petition matters in Nigeria. 13Emeka Opara, Nigeria: Arrest of Ships In Nigeria: An Overview of the Procedure Kenna Partners Mondaq (2021) accessed on January 20, 2022 at https://www.mondaq.com 14Thomas J. Schoenbaum, Admiralty and Maritime Law (Fifth edn., Thomas Reuters: St. Paul, MN 2012) 895.
15 Arrest of ship is carried out by making an exparte application at the Federal High Court and it is heard in chambers.The application can be made three days before the ship is expected to arrive within the court"s jurisdiction.The arresting party must first ensure that a caveat against the arrest is not in force on the ship by conducting a search in the caveat book before filling application.where the application the application is granted, the validity period is 6 months and may be renewed for another 6 months. 16

a. Pre-Judgment Arrest of a Ship
This is an arrest of the ship before a judgment is rendered.The procedure to which a pre-judgment arrest is made means invoking the court's jurisdiction in rem. 20A pre-judgment arrest of the ship is an action in rem and may be commenced in the judicial division of the court where the res is to be found or is expected to arrive within three (3) days.The Court in the Vessel MV Sirius-B v. MSSCI Ltd21 ruled that preventing the transfer of a specific ship from the jurisdiction, which could be utilized to fulfill a potential judgment in the Plaintiff's favor, is typically the main goal of a prejudgment arrest of a ship in admiralty proceedings.In other words, a prejudgment arrest requires, in place, that the ship furnish security equal in value to the amount claimed against the ship or, in some cases, even the worth of that specific ship.22b.Judicial Sale of a Ship Verifiable data have shown that various ships have cluttered the Nigerian territorial waters owing to the failure of various ship owners to assist in terms of bail for releasing ships under arrest.One of the disadvantages of the ship"s arrest to a ship owner, apart from deteriorating and loss of business concerns, is the power of the court to upon the application of the arrestee or another interested party, order the sale of the ship held in custody, particularly when bail or adequate security has not been granted six (6) months from the date of the arrest. 23The Admiralty Marshal will sell the ship when a sale order is issued.The sale proceeds will be deposited, pending further court orders, into an interest-bearing fixed deposit account in the Admiralty Marshal's name.24

Power of States Over Seized Vessel
Nick Barber of Stephenson Harwood has argued that Coastal states have two important frameworks that give them the requisite power to seize a ship flying the flag or owned by another state. 25These legal frameworks are the national laws and the United Nations Convention on the Law of the Sea 1982 (UNCLOS).UNCLOS has been sentenced to have a wide acceptance to be considered as customary international law.Hence, it is binding on states, including those not signatories. 26onsequent to the above position of coastal states to seize erring ships, states also have some jurisdictions beyond their territorial sea, although this is not without exception.UNCLOS provides that the right of innocent passage and transit passage through the strait used for international navigation are guaranteed to ships of all states in the territorial sea.Therefore, it is against international law to seize a ship exercising these rights.However, states retain the right to enact laws and rules governing innocent passage or transit passage, considering concerns with protecting living resources, maritime safety, and environmental protection.States have extremely little authority to seize ships on the high seas. 27Although states often include the right of "hot pursuit," especially where an infringing ship is chased from the Exclusive Economic Zone of the coastal states to the high seas. 28n Nigeria, where ships are seized, the practice adopted is that upon suspicion of committing a crime or illegal activities, the ships in question will be arrested by patrol units.Be that as it may, the preliminary investigation is carried out 29 to establish the actual commission or otherwise of the offense shall commence.As soon as a primafacie case is established against the ship, it would be handed over to the agency responsible for prosecuting the erring ships.In most cases, the Nigerian Maritime Administration and Safety Agency (NIMASA), 30 the Economic and Financial Crimes Commission (EFCC), the Nigerian Security and Civil Defence Corps (NSCDC), and the police. 31The main obstacle is that where arrests are made, the erring ships are handed over to the EFCC. 32The handing over of the erring ships to the EFCC complicates the maintenance issue, being the subject of discourse in this research.EFCC, an agency of government majorly responsible for economic crimes, has no holding bay for ships.Some seized ships have sunk across waters in Nigeria, while others that have been seized owing to one allegation of corrupt practices or another were damaged due to lack of proper maintenance. 33ased on the data collated regarding the maintenance of seized ships in Nigeria, it is evident that over thirty (30) seized ships are presently in Port Harcourt.Warri Port, on the other hand has ten (10) seized ships.Bayelsa port has (10) and all these are in the custody of the Nigerian Navy.Admittedly, all these seized ships were forfeited to the Federal Government of Nigeria through the EFCC, the agency responsible for the prosecution.The EFCC lacks Technical Know How to protect them.The Nigerian Navy is saddled with the responsibility of protecting those seized ships. 34The EFCC cannot also refund or make provisions for expenses of the Navy on the maintenance of seized ships.Against this backdrop, the Nigerian Navy is lamenting the burden of maintenance of seized ships and dropping in the quality of these assets.
It is worth noting that the lack of proper maintenance of seized ships on the part of government in Nigeria (through the EFCC) is taking its toll on acts of criminality in the maritime domain.This is because the Navy, which was originally part of the process or enforcement mechanism for the arrest 35 and seizing of ships is disenchanted to make further arrests of erring ships, especially where those seized ships are deteriorating and wasting away in the Nigerian maritime domain.It is saying the obvious that when ships are seized.Perhaps it was discovered that it was becoming a burden, the tendency of compromising or refusing to make the arrest when other ships are committing a similar offense (s) will be high, and others committing the similar offense (s) would rather be allowed to go. 36

Experimenting with Ship Seizure Procedure in the US
It is imperative to look or consider other jurisdictions to share experiences on how seized ships are being maintained and managed and, indeed, draw inspiration and lessons on the situation in the country.This would give impetus for areas of improvement in the existing predicament.For this research, the country that will be looked into is the United States of America, as it appears that they have been able to maintain seized vessels efficiently in their Maritime Sector.
In the United States of America, the arrest of a ship is part of the process by which an Admiralty Court assumes jurisdiction over the subject matter of maritime practice.Maritime practice in this perspective is known as action in rem, that the action is against a "thing" rather than a person.By action in 34 Ibid. 35Nigerian Navy has major roles to play towards ensuring maritime security and safety.The Arm Forces Act empowers the Nigerian Navy to coordinate the enforcement activities of the Nigerian Immigration, Customs, etc. in respect of the national and international maritime law, conventions, practices and safety regulations in territorial waters of the Nigerian Exclusive Economic Zone.Abdulrazaq O. Abdulkadir at p.177.See also section 271 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
rem, we mean that such action would be in rem, e.g., in case of a lien against a ship, the jurisdiction is vested in the Federal High Court. 37On the other hand, where the action is against the person at fault for a breach of the fiduciary relationship (e.g., utilizing a loan on the ship for another purpose other than the purpose for it which it was granted), such cannot be an action in rem but the action in personam.
This distinction was brought to the fore by the court in the case of Cemar Shipping Inc. v. M/T "Cindy Gaia" &Ors. 38The appellant commenced admiralty action in rem against the respondent at the High Court, Lagos, claiming delivery up, title to, and possession of the M/T "Cindy Gaia" and or damages to the tune of USD6, 581,684.13(Six million, five hundred and eighty-one thousand, six hundred and eighty-four dollars, thirteen cents to be delivered to the 2 nd respondent in Singapore.The appellant"s motion to the Federal High Court for the arrest of the 1st respondent vessel was refused on the grounds that the court lacks jurisdiction as the action was one in personam.Ogunbiyi JCA (as he then was) held as follows: An action in rem is a piece of legal machinery directed against a ship alleged to have been the instrument of wrongdoing in cases where it is sought to enforce a maritime or statutory lien or in a possessory action against the ship whose possession is claimed.A judgment in rem is a good judgment against the whole world.This does not mean that the vessel is the wrongdoer but that it is how the wrongdoer (its owner) has done wrong to some other party.It is how the wrongdoer is brought before the court as a defendant.It is an accepted legal theory that an action in rem is procedural.The purpose is to secure the Defendant"s owner"s appearance.An action in personam is directed against the person at fault.It depends entirely upon the Plaintiff being able properly and effectively to serve a summons on Defendant in connection with the legal complaint against Defendant, particularly when the parties are in a different jurisdiction." Generally, the practice in the US is that the ship is responsible for the payment of mortgage, liens, and liability that have arisen.Where the owner of a ship encumbers a ship with a First Preferred Ship's Mortgage, the concomitant implication is that the ship guarantees the payment of such mortgage and not the owner.Contrariwise, the owner can enter into a separate agreement or arrangement and undertakes to pay, thereby becoming a liability in case of default.An arrest of a ship is a sine quanum for activating court jurisdiction.Where the ship cannot be seized, the exercise of court jurisdiction would not be possible.
In the United States, an arrest is a physical process by which a U.S. Marshal can board the ship and assumes physical control.By this arrangement, a copy of the Notice of Arrest must be sent to both the owner and the master or other person in control and posted on the vessel.Additionally, the notice must appear in a newspaper that is permitted to publish legal notices.Any other lien holders asserting an interest in the vessel must receive an actual notification.Once a ship is seized, the court maintains possession of it with the help of a marshal or substitutes custodian, and the owner has no further control. 39he court typically permits the owner to post a bond or other appropriate security to prevent the abovementioned narration and its impact on commerce.The ship is returned to its owner once the security has been accepted, and the legal case continues with the security being the object of the judgment's execution.In this sense, letters of undertaking are demands issued by the owner or his insurance provider to appear and contest any claim, much like if the ship had been imprisoned.The owner or the insurer is responsible for satisfying any judgment debt when one is entered.This avoids the owner's business being disrupted during the legal proceeding and equates to specified jurisdiction for the admiralty court. 40he Marshal is required to keep the vessel and its equipment safe after seizing it.Unless specifically instructed to do so by a court order, the custodian of a seized vessel should generally refrain from interfering with the cargo and other operations typical of a vessel in berth.The "Manual for United States Marshals" outlines the duties and responsibilities of the Marshal in the United States and how they should be carried out.It's crucial to understand that a confiscated vessel does not have hull insurance placed on it by the Marshal.To safeguard their interest against loss, the owner or the Plaintiff must ensure the vessel with enough port risk coverage. 41he court may order an interlocutory sale if a vessel is not released after posting security.An interlocutory sale occurs before the court case is over and a verdict is rendered.The transaction will typically not be permitted for four months.The guidelines call for selling the property if it is perishable, subject to degradation, or if retaining it would be too expensive. 42he auction buyer has no ownership interest in the vessel until the sale is approved by the court, regardless of whether it is an interlocutory or judgment sale.The court can invalidate the auction and order a new sale if a greater bid is submitted within three days.Following confirmation, the purchaser is given the title, which cancels all other liens and gives him a free and clear title.No lien for prior debts may be established or enforced during an "in rem" action because it resolves all claims against the vessel worldwide. 4339 Ibid. 40Ibid. 41Ibid. 42Ibid. 43Ibid.
It is important to remember that the sale revenues are paid into the court and used to cover any costs that may be incurred or incidental to maintaining the ship and the Marshal's fees.To do this, the remaining balance is later paid to the claimants, and any remaining balance is given to the owner.In cases when the funds received are insufficient to cover all claims, the claimants must make a proportionate payment toward the remaining balance or shortfall.The ship's owner is not entitled to compensation for loss of profits or damages resulting from the arrest unless the claimant/Plaintiff who seized the ship acts in bad faith.Importantly, a ship sold at a marshal's sale to satisfy a maritime lien or mortgage on a preferred ship does not qualify as a "U.S. built" for Jones Act purposes, which mandates that ships operating between U.S. ports be American-made.However, if the ship is forfeited to the American government due to a drug, customs, or other seizure, it will technically be considered "U.S. built" when it is bought at a marshal's sale. 44

Challenges of Maintenance of Seized Ships in Nigeria
When ships are seized in Nigeria, the Nigerian Navy is tasked with the maintenance of such ships until the fate of such ships is decided.However, some challenges are faced by both the Navy and the Nigerian Maritime Sector regarding how such ships are to be maintained.Suppose the Ship Symphony is seized in Nigeria.In that case, it may end up not being maintained properly and efficiently due to a lack of viable steps and processes for its maintenance.Some of the challenges facing the maintenance of seizure of ships in Nigeria are: a. Delay in Court Processes The major challenge of the Maritime Sector is the slow pace of the administration of justice and court of congestion in Nigeria. 45A situation where a ship is seized by the Navy and handed over to an enforcement agency like the EFCC, but nothing is achieved more than a year would no doubt affect the commercial concerns and interests of the ship arrested.As stated in the earlier part of this paper, such ships may end up damaged or sinking before any maritime proceedings against them can commence. 461) Lack of Funds for Maintenance of Seized Ships The Nigerian Navy has repeatedly reported and complained that it could not fund, monitor and maintain the seized ships in its custody.One of the major complaints is that the Navy, responsible for overseeing the seized, does not have a budgetary allocation to maintain them, thereby damaging and submerging those ships.2) There is the challenge of the wide gap between forfeiture and sale (auction) Verifiable data have shown that most of the ships seized in Nigeria were forfeited over five years ago.There are indications that the minimum period by which some ships have been seized is two years ago, which would no doubt affect those assets.These assets cannot be abandoned for long because they are depreciating assets. 48

C. Conclusion
EU legislation and regulations establish a framework for a policy that views immigrant status as a binary.This search term has multiple purposes: legal designation and analytical framework.Although legal "binary structure" is typical, claiming that the law can only understand human behavior regarding its legality or illegality would be an overstatement.The EU determines the requirements for legitimate admission and residence concerning normal immigration.Member states continue to have the authority to regulate the number of applicants from outside the EU who are admittedThe majority of unlawful migrant workers face problems with their residency status despite EU policies concerned with migratory workers and numerous regulations on the labor movement.
Therefore, "illegal" migration still exists in the labor migration market.Solving this "binary" of migrant labor by controlling a quantity of high-skill labor but low-labor managing as a wide gap in the EU and many other counties.In my opinion, many authorities want to endorse their legal system by restricting the migrants who enter their nations because they don"t want to limit the sovereignty"s rights.I know several documents, including binding and non-binding concerning migrant workers elements, even the illegal migrants, which the UN promulgates.One of the solutions that can control the undocumented flows is that ratify one of the hard laws like ICMRW.The migrant workers status is binary because international integration in labor and controlling irregular workers need to occur simultaneously.The measures taken by Spain are quite consistent with the current situation of migrant workers.The government's direct actions on the extension of work visas as well as cooperation with expansion partners have solved two major problems: reducing illegal migrant workers and expanding strategic partnerships on labor mobility.

D. Recommendations
In light of the above challenges, the following are some recommendations on how seized ships can be better maintained in Nigeria: 1. Establishment of a Maritime Or Admiralty Court.Establishing a maritime court will be the right direction if Nigerian lawmakers can make legislation for its establishment.Admiralty or maritime court, where established, will deal exclusively with maritime cases for speedy dispensation of justice. 49In addition, the hearing of maritime cases, especially the arrest of ships, will reduce the dockets of regular courts.The Admiralty court, where established, will have exclusive jurisdiction to adjudicate only admiralty cases.This will also engender and encourage professionalism.Judges with maritime law backgrounds would be appointed to run the court with the purposeful interpretation of extant laws and proper adjudication of the arrest of ship cases.2. Introduction of Release of Ship on Bond.One of the lessons from the US practice, which is in tandem with suggestions of the Nigerian Navy is the introduction of bonds.Where established, the Maritime or Admiralty Court may direct the ship to make a bond.This arrangement will reduce the problems arising from holding a ship.As much as a bond is in place, an agency like the Nigerian Navy, responsible for maintaining and managing the seized ship, can easily produce the ship in court when necessary.

Establishment of a Commission in Charge of Handling Seized Ships In
Nigeria, the current position is that when the Navy seizes ships, the ship will be transferred to the EFCC.As mentioned in the earlier part of this paper, the EFCC, which has taken custody of ships from the Navy cannot maintain the ships.It is suggested that an agency or commission to manage and maintain seized ships be established.Alternatively, this responsibility can be assigned to one of the existing regulatory agencies of the Maritime Sector.4. A distinct and reputable Admiralty Registry in Nigeria is also recommended.This should be made separate from the regular court registry and more accessible and available to all the divisions of the court where seaports are located.
K.K Anele, Rethinking the arrest of ship regime in Nigeria Commonwealth Law 17The Admiralty Jurisdiction Act of 1991.18TheAdmiraltyJurisdictionRules of 2011.19See the Federal High Court Act, Laws of Federation of Nigeria 2004, section 7.
47 44 Ibid 45 K.K Anele, A Comparative Analysis of the Arrest of Ship Procedures in Nigeria and Korea: The Need for a Paradigm Change, Journal of Korean Law (2020) Vol. 19, 191-226 p.224.