Emeka Akabogu May 23 2018 Ship detention gone rogue Akabogu & Associates | Shipping & Transport - Nigeria Emeka Akabogu Shipping & Transport IntroductionLegal basisInconsistencies with statutory provisionsOccasions for arrestCourt ordersDetention pending prosecutionOrchestrated abandonmentCommentIntroductionIn January 2017 Vice President Yemi Osibajo promulgated the Harmonised Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria's Maritime Environment 2016 (HSOPs), which were developed by the Federal Ministry of Justice and endorsed by the navy. In his foreword to the procedures, Attorney General and Minister of Justice Abubakar Malami expressed satisfaction that they adequately address the overlapping responsibilities of various agencies. After receiving the seal of approval from two eminent senior advocates, it was unsurprising when the Chief of Naval Staff, Vice Admiral IE Ibas, asserted that the HSOPs will provide "a consolidated guideline for harmonious management of arrests, detention and prosecution of vessels and suspects as well as seizure and forfeiture".Vessels often cost millions (and occasionally billions) of dollars and are therefore prized assets of major economic significance. In addition, complex interests are normally at play, as vessels are typically:purchased with bank loans;collaterised with tangible and intangible assets;manned by dozens of people, often of diverse nationalities;operated by multiple service providers; andladen with cargo.As such, incidents that affect vessels are usually of considerable commercial significance, and a document focused on the arrest, detention and prosecution of a vessel must be properly justified in law and procedure. However, the HSOPs fail to meet this requirement, as they confer no powers or rights on the navy or any other organisation. As such, any action founded on the HSOPs will be illegal unless otherwise statutorily justifiable.Legal basisThe HSOPs are a set of guidelines. A detailed look at their provisions indicates that they do not derive authority from any piece of legislation. Clause 2 of the procedures makes a general assertion that they are based on "the statutory powers conferred on the Ministries, Departments and Agencies charged with maritime law enforcement activities". In reality, the statutory powers of all relevant bodies are sourced from different independent statutes. Administrative guidelines are often derived from a primary legislation which makes provisions of a general nature, with the guidelines offering more specific procedural direction. As a result, such guidelines are often binding only to the extent that they conform with the primary piece of legislation. Where a provision in a set of guidelines or regulations does not flow from the primary piece of legislation, it will be void. This rule applies with greater force where the entire set of guidelines has no statutory foundation, as is the case with the HSOPs. At best, the HSOPs are a tool for administrative convenience. Any agency purporting to rely on them as a basis for its action will succeed only if the action is covered by the agency's establishing legislation.Inconsistencies with statutory provisionsClause 7 of the HSOPs broadly provide that agencies have a right to arrest any vessel or person involved in "any type of criminality". The breadth of this statement suggests carte blanche with regard to the arrest of vessels. As these 'agencies' are not defined, it is unclear whether they include members of the 'stakeholders forum' constituted in Part 1, Clause 2, which includes the Ministries of Defence, Justice, Agriculture, Transportation, Interior, Finance, Petroleum Resources and Environment and their respective relevant agencies. This update focuses on the Nigerian Maritime Administration and Safety Agency (NIMASA), which – under its establishing act – does not have the power to arrest any vessel involved in "any type of criminality". For example, if the NIMASA arrests a vessel for smuggling, it will be acting outside the scope of its statutory authority.The HSOPs confuse ship arrest with ship detention, which is contrary to established usage in admiralty practice. Whereas 'arrest' often refers to judicial orders constraining a ship's movement, 'detention' is the constraint imposed by regulatory bodies of the type contemplated in the HSOPs. However, the HSOPs define arrest, but not detention – even though they define a 'detaining officer'. The definition of 'arrest' in the HSOPs is the same as that which, in practice, is accepted for detention.Occasions for arrestThe procedures set out a range of circumstances in which vessels will be liable to arrest, including:unauthorised operation;piracy or armed robbery;theft of Nigeria's economic resources;illegal bunkering;unauthorised movement of petroleum products;unauthorised research activities;drug or human trafficking;slave transportation;the navigation of unauthorised areas;navigation without regard to the Rules of the Road;an outboard engine being used beyond its approved capacity;failure to comply with the Cabotage Act; andany other illegal maritime activities not specified in the HSOPs.Many of the activities listed require a specific technical evidentiary burden beyond mere suspicion. However, the HSOPs specify no particular organisations which may arrest in respect of particular offences, suggesting that any of the agencies listed may arrest for any of the offences listed. This appears to be a recipe for regulatory anarchy and certain impunity.Court ordersClause 8 goes further and vests the power to arrest in all "law enforcement agencies as specified in their various establishment Acts", adding that "such powers shall include an Order of Court of competent jurisdiction". The power of arrest vested in all law enforcement agencies should be based on reasonable and informed suspicion, which – for many of the offences – may be determined only on technical indices which the law enforcement agencies do not have. To satisfy the requirement of reasonable and informed suspicion, the arrest should be at the instance of a technical regulator, such as:the Department of Petroleum Resources;the NIMASA;the Department of Fisheries; oranother relevant agency.Such provisions have not been made. The court order requirement is an attempt to give the power to arrest a veneer of due process. Unfortunately, this will complicate matters, as the guidelines cannot impose a requirement that many of the individual agencies have not been given in their establishing statutes. For instance, the establishing act for the NIMASA includes no express provision regarding court orders for detaining ships, although the NIMASA may, with ministerial approval, issue regulations to regulate the process (Section 51(1) of the NIMASA's establishing act). Such regulations can include the requirement of a court order. Notably, the Coastal and Inland Shipping (Cabotage) Act expressly authorises enforcement officers to detain ships in relevant circumstances without a court order. Therefore, the mandatory requirement to obtain a court order in the guidelines will lead only to regulatory confusion. The requirement is also fraught with practical difficulties, as the procedural hurdles of obtaining a court order are not conducive to the likely imperatives of immediate detention.Detention pending prosecutionClause 13 suggests that vessels will be arrested and investigations conducted after the fact. By providing that "the agency to take over an arrested vessel shall depend on the nature of offence committed", the presumption is that the arresting authority (ostensibly the navy) would have arrested the vessel without the involvement of the relevant agency. It is unclear what considerations would have informed such a decision to arrest.Further confusion is stoked by Clause 15(3) of the HSOPs, which provides that in the event that an agency cannot take custody of a vessel, it must "hand over to the Nigerian Police Force or the Admiralty Marshall of the Federal High Court pending prosecution". Clause 15(4) further provides that the navy may take custody of an arrested vessel on behalf of the relevant agency pending prosecution. These provisions harbour two challenges, both of which concern legal validity. First, they appear to promote detention pending prosecution, which contravenes the constitutional guarantees of a fair hearing and the presumption of innocence. Second, the Admiralty Marshall is not a general receiver of all detained vessels; the office can act only within the expressly provided mandate of the Admiralty Jurisdiction Procedure Rules under the Admiralty Jurisdiction Act. In the absence of statutory authority, an arrested vessel cannot be legally handed over to the Admiralty Marshall as proposed.Orchestrated abandonmentClause 17(1) of the HSOPs provides that:"in the event of failure to reclaim seized and detained vessels by its owners for a period of 12 months the Agency in custody of the seized item as the case may be, shall reserve the power to obtain an order of forfeiture and disposal from a court of competent jurisdiction."In effect, the burden of reclaiming an arrested vessel is with the owner, irrespective of the circumstances of the detention. The provision gives no precise reference point for determining a failure to claim. Thus, it is unclear whether a claim starts:immediately after the arrest;after any proceedings relating to the vessel; orafter any relevant exchanges.The HSOPs do not provide for notice to be given to a vessel owner. This is a key issue in practice, as vessels are often detained without a clear definition of:the responsible authorities;the persons with whom to engage; andthe benchmark procedures.CommentThe idea of harmonised guidelines suggests the existence of a range of agencies with diverse powers of ship detention. To some extent, this may be true – the NIMASA, the Nigerian Ports Authority, Customs and the navy are all statutorily empowered to detain ships under different rules. However, harmonised rules suggest a similarity of offences, enforcement regimes, personnel and assets. This is hardly the case with the HSOPs, as different statutes regulate the operation of different agencies. A proper attempt to harmonise rules will be based on an appreciation of the similarities and differences of the statutory provisions governing detention which apply to each of the relevant agencies, an area in which the HSOPs unfortunately fall short. The HSOPs are a poorly worded set of guidelines, endorsed by the navy, which attempt to validate arbitrariness. However, this may be understandable in view of the considerable judgment debt hanging over government bodies arising from the illegal detention of vessels.Despite their potential, the HSOPs ignore the most significant cause of this judgment debt: the wrongful and continued detention of vessels over a long period incurring daily costs and losses. They also ignore the need for:strict timelines to be in place where a vessel is arrested on mere suspicion;bail-bond options; anda distinction between the owner of a vessel and the owner of cargo, as well as a procedure for disentangling and ring-fencing the interests of both.Ultimately, despite the high-level executive fanfare that accompanied their launch, the HSOPs are a lightweight set of guidelines with no legal potency or operational clarity.For further information on this topic please contact Emeka Akabogu at Akabogu & Associates by telephone (+234 704 329 3271) or email ([email protected]). The Akabogu & Associates website can be accessed at www.akabogulaw.com.