By Emeka Akabogu, Esq.
My attention has been called to a recent incident in which NIMASA and NLNG were reported to have failed to provide assistance to a distressed vessel, resulting in the sinking of the vessel and loss of lives.
The association of trawler owners has cried out against this loss of one of their member vessels and blamed NIMASA and NLNG for not coming to the rescue of the distressed vessel even though they allegedly had adequate notice to have intervened successfully. The reported incident, if confirmed to be correct, calls for increased awareness, preparedness and responsiveness by all concerned. However, it is useful to provide clarity on responsibilities of relevant parties in such a situation to avoid this kind of incident in the future.
It is reported that NLNG received the distress call about fire aboard the MV “Orciv” but demanded that a contract be signed before they would respond. According to Business and Maritime West Africa report accessible at https://businessandmaritimewestafrica.com/trawler-owners-accuse-nimasa-of-ignoring-distress-call-as-fire-sinks-vessel-two-missing/, the President of the Nigeria Trawler Owners Association Mr. Akinsola Amire was quoted as saying – “instead of NLNG to salvage the situation, it was asking for a contract before it could carry out the salvage operations.”
It must be stated clearly that local and international laws impose a duty on both states and vessels to facilitate assistance at sea to vessels in distress. Article 98 of the United Nations Convention on the Law of the Sea imposes a dual duty on the state to (1) require the master of a ship flying its flag to, among other things, proceed with all reasonable speed to the rescue of persons in distress, if informed of their need for assistance; and (2) promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea. Nigeria has taken steps in this direction by the enactment of the Merchant Shipping Act of 2007 which provides in section 390(1) that the master of every vessel shall as far as he can do so without serious danger to his vessel and persons on board, render assistance to persons in danger of being lost at sea. Where he fails to do so, he commits an offence and is liable to a fine or imprisonment or both. Furthermore, NIMASA has established a regional centre for search and rescue, under which it is meant to have a system of identifying partner vessels in proximate locations to incidents of distress which can be readily called upon to provide assistance.
The practical application of the above stated laws comes with some challenges and obligations which owners of vessels should be aware of. While the master of a vessel that has received a distress call has a duty to respond to the distress call, the master and owner of the distressed vessel itself have a corresponding duty to “cooperate fully with the salvor during the course of salvage operations”. It is not unexpected that a potential salvor will want the owners of vessels to sign off on some documentation in view of legal principles which tend to work against the interest of salvors. For instance, a salvor, even if undertaking a voluntary or charitable intervention (civil salvage) nonetheless owes a duty of care to the ship in distress, and could be liable in damages for any loss suffered by the ship in distress or persons on board if found negligent in undertaking the salvage operation. Owners of vessels tend to find themselves in a “catch-22” situation in such instances, and losses running in millions of dollars are known to have been incurred by vessels ostensibly acting to help other vessels in distress. It is therefore understandable if documentation excluding liability and providing indemnity is normally sought before the commencement of civil salvage operations. In such cases, owners or masters of vessels in distress are expected to make a quick call on the subject to ensure speedy action can commence, unless the terms of the required documentation are completely unreasonable in all the circumstances of the case.
It is also incumbent on NIMASA to ensure that the soft and hard elements of its communication are serviced and ready at all times for events like these. The regional centre for maritime search and rescue should be a showcase of efficiency, and incidents like the one reported are unfortunate. As a matter of urgency, an all-stakeholder sensitization is necessary to cover all relevant issues and prevent such an occurrence in the future.
Emeka Akabogu Esq. is a maritime lawyer.
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