Shipcare Nigeria Limited Owners Of The M/n Africa Hyacinth V. The Owners Of The M/v Fortunato & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant is the owner of M/T African Hyacinth. On the 11th day of April 1997 at about 7.40 pm whilst navigating in the Warri Port, and proceeding to the loading Terminal she collided with the M/V fortunato which was at anchor. There was extensive damage to M/V fortunato. The collision occurred in a Pilotage District and by the provisions of section 23(1) and (3) of the Ports Decree 1993 the appellant’s ship must be under the Pilotage of a Nigeria Ports Authority pilot or a Licensed pilot of the District. Both courts below found that the appellant’s ship was not manned by a competent Pilot. By summons for Decree of Limitation brought under section 363, Merchant shipping Act, 1990, Section 9 of the Admiralty Jurisdiction Act, 1991, Order 13 of the Admiralty Jurisdiction (Procedure) Rules 1993, the appellant admitted liability for the damage arising out of the collision with the M/V fortunato but by the action supra sought a Decree limiting their liability. In the action they sought six Declarations, and they are:

1. A DECLARATION that by reason of the provisions of section 363 of the Merchant Shipping Act Cap 224, Laws of the Federation of Nigeria 1990, they are not answerable in damages beyond the aggregate amount of N47.00 for each tone of the tonnage of the M/T African Hyacinth ascertained in accordance with the said provisions, in respect of loss or damage caused to any property or the infringement of any rights through their act or omission the navigation or management or the African Hyacinth when the M/T African Hyacinth collided with the Defendants vessel the fortunato and its Appurtenances on the 11th day of April, 1997 at Warri.
2. A DECLARATION that the tonnage of the M/T African Hyacinth ascertained in accordance with the provisions of the Merchant Shipping Act, Cap 224, Laws of the Federation of Nigeria, 1990 is 1,320,33 tonnes.
3. A DECLARATION that the liability of the Plaintiff aforesaid is limited to N62,055.51 and no more together with simple interest thereon from the 11th day of April, 1997 to the date of the Limitation Decree herein.
4. That all proper directions be given by this Honourable Court for ascertaining the persons who may have any just claim for loss or damage arising out of the said collision.
5. That the aforesaid sum of N65,005.51 together with interest thereon be rateably distributed among several persons who may make out their claim thereto and that proper directions may be given for the exclusion of such claims as shall faiL to make out their claim within a time to be fixed for such purpose.
6. Alternatively, that all proper directions be given for the further conduct of these proceedings.

Ukeje J (as she then was) of the Federal High Court presided. Trial was premised on affidavit, counter affidavit, further affidavit and several exhibits.

The central issue for determination was:

Whether there was sufficient materials on the record which will entitle the plaintiff (now appellant) to limit their liability.

In a considered judgment delivered on the 18th of December, 1997 the learned trial judge found that:

1. The M/T African Hyacinth was seaworthy at the time the collision occurred on the 11th of April, 1997.
2. The collision occurred in the Warri port, a compulsory Pilotage area established by the Compulsory pilotage Districts (Establishment) Order 1993. Section 6 of 1993.

The provisions of Section 23(1) and (3) of the ports Decree 1993 apply to make it compulsory that whenever a ship is navigating a compulsory pilotage District for the purpose of entering, leaving or even merely making use of the port therein, then, such ship must be under the pilotage of a Nigeria ports Authority pilot or a Licensed pitot of the District.

The learned trial judge continued:

“There is no evidence whatsoever before this court that at the time of the collision, the vessel was complying with Section 23(1) of the ports Decree, as there is no evidence that Newton funfade or any other master of the vessel is either a company pilot or a licensed pilot of the District.

The action was dismissed after the learned trial judge concluded that this was not a proper case in which to grant the plaintiff leave to limit their liability in terms of their claim. The plaintiff appealed. The defendants cross appealed. For the main appeal the Justices of the court of Appeal considered issues 1, 2, 3 and 4 in the appellants brief and issues 1 and 2 in the respondents/cross appellants brief. The issues are:

1. Whether the learned trial judge was entitled to resolve the conflicting averments in the affidavits on the question whether or not the vessel was navigating at the time of the collision without calling oral evidence.
2. Whether the learned trial judge was right to have dismissed the Plaintiffs suit without having made a finding that the collision occurred as a result of the actual fault or privity of the appellant ship-owner.
3. Whether the plaintiffs were given fair hearing on the issue of non compliance with pilotage regulations in respect of which they had no notice.
4. Whether the learned trial judge was justified in finding that the collision occurred partly because the M/T African Hyacinth had not complied with the mandatory requirements regarding pilotage in a compulsory pilotage district.
5. Whether the learned trial judge was bound to call any oral Evidence to resolve the alleged conflict in the affidavit filed by the parties.
6. Whether the learned trial judge was right in holding that the Appellants were not entitled to limit their liability under section 363 of the Merchant Shipping Act.

A sole issue was considered in the cross appeal and it was:

Whether the learned trial judge was justified in finding that the M/T African Hyacinth was sea worthy.

The Court of Appeal in a well considered judgment dismissed the appeal, but allowed the cross appeal. This appeal is against that judgment.

In accordance with rules of this court briefs were duly fired and exchanged. The appellants and respondent’s briefs were both filed on the 25th of November 2010. Learned counsel for the appellant, chief F.O. Offia formulated four issues for determination. They are: