MARITIME LAW! 1 TRODUCTION Maritime Law is essentially but not exclusively about shipping and related activities. The shipping industry is perhaps one of the most international of all industries. Upon its efficacy and standard of service depends the ability of the nations of the world to maintain smooth and advantageous trade relations with one another. Inextricably bound up with this basic premise is the fact that there must be mutual understanding among nations, particularly on the legal issues, the rights, obligations, immunities and benefits arising from the innumerable and diverse situations occurring during the course of the day to day operation of the ship. Being of vast size and weight, over reaching and increasing sophistication, they are the means by which great damage to persons and properties can be done, for claiming prima facie responsibilities and for making good the loss or damage to the owners. It is not surprising that a great part of the shipping laws of many nations have been enacted at the collective signing of the intemational conventions. Maritime law, particularly the Law of the seas component which comprises of the agreed principles and norms, determines the sea areas and governs the relations which subjects of international law enter into when using the world’s ocean, its sea ~ bed and the sub-soil for various purposes. The Law of the Seas indeed has an impressive history. It has also come a long way from the days of the slave-owning system, feudalism and the period of transition to capitalism when it refers to the individual standards of the law of sea which at that time, primarily concemed the system of intemal laws and mostly govern legal and property relations between individuals. The * Lecture Materials in Maritime Law prepared by A.O. Popoola, Faculty of Law, Obafemi Awolowo University, ile- Ife, Nigeria,‘codes then in force include the Basilika, ‘the Consolato Del Mare’, Laws of Wisby’ and ‘Rolls D Oleron’. They were not a source of intemational law. They dealt with customs and rules of luct observed in trade between a part of one region and the other. They did not prescribe any or codified standard of international law nor were they promulgated by any sovereign rity, They did not delineate any region of the sea areas and such legal concepts like the Seas, inland or territorial waters have not yet taken shape. ‘There can be no doubt that the seas are second to none among God’s endowments to According to Geographers, the seas occupy 2/3 of the earth surface. This sheer size of seas and the ocean has an importance that is sometimes not fully appreciated, For instance, Pacifie Ocean is so large that it will occupy almost an entire hemisphere. So vast are the s that major parts of them are today relatively unused except occasionally as a surface upon to move, For example, the Indian Ocean occupies 16% of the earth surface yet, it is still ly unexplored and unused. ‘The oceans have pethaps been most effectively employed as at avenue of transport. The great bulk, indeed about 80%, of the exchange of goods among ons still depends on ocean going vessels, All states are affected by the process of ocean 1 no matter how remote their boundaries are from the oceans. Even when travel in space above many parts of the oceans have become highly intense, ially in the movement of people. The oceans are also used for speedy trans-oceanic ications. This dates back to 1866 when the first telegraph cable was Iaid between 1d and New Found land. Today the continents are linked by several thousands miles of les. Scientific research into the ocean, including the ocean bottom is another significant vity on the sea, The principal object of these researches is to acquire knowledge of the ious history of planets to gain understanding of the effects of the oceans upon life upon the earth andto attain very practical results such as increasing the use of marine resources and enhancing human capacity to make the ocean serve it’s needs. Besides, the sea is the source of everything that sustains life, the water we drink, the fishes that supplies us with rich protein etc. We have already seen that the sea plays a very important role in intemational intereourse and that marine activities are as ancient as man’s history. The maritime industry is indeed essentially international in character. Maritime navigation not only serves to link up coastal towns of the same state but also of far flung states. Different codes, as we have seen, have been designed to regulate maritime activities These codes not only belong to all epochs in human history but also provide evidence of the importance and role of the sea in the life of men, Maritime navigation across national maritime frontiers have resulted in the application of international rules. While a ship remains always subject to the jurisdiction of the flag state, itis nevertheless obliged to reckon with the interest of the intemational community and to observe intemational regulations governing maritime navigation passing through intemational waters. 1 History and Development of the Admirality Court and Maritime Law In the year 1360, Sir John De Beauchamp was appointed as “The King’s Admiral of all the fleets of ships of the South, the North and the West”. It was that appointment that brought into being the Court of Admirality of England. Before this time, the South, the North and the West had each had their own Admiral, each excessing his own authority. Sometimes, these independent jurisdictions conflicted. Sir John was therefore given ‘full powers’ of hearing plaints of those things which touch the office of Admiral, and having cognizance in maritimecauses and of doing justice, and doing all other things which pertain to the office of admiral as of tight and according to maritime law. There is no record of his having heard a case, His successor, however, is known to have decided what was in effect the prize case at the Wood Wharf in London. Once instituted, the jurisdiction of the court of admirality spread rapidly probably because of the English victory over the French at the Naval Battle of the Sluys which had given England mastery of the seas bounding the Northern Europe for the time being, Early in the next century, it became necessary for this expanding jurisdiction to be more exactly defined; so it was then that the ‘Black Book of the Admirality came to be written. ‘The opening passage translated from the early French is in the following words: “When a man is made an Admiral, he should at once appoint under himself, his lieutenants, deputy and other officers, some of the most loyal, wise and discrete persons in the maritime law and ancient customs of the seas which he can anywhere find. ‘The Black Book then goes on to set out the law which is to be administered in the admirality court. Largely, this comprise what were called The Laws of Oleron. It is said that these laws had been promulgated by Queen El eanor of Aquetaine in 1160. Oleron is a small Island belonging to France and situated in the Bay of Biscay. The Island was important in those days because its position made it the export centre for trade in wine. Queen Eleanor was the feudal ruler of the district in Western France which produced the wine, She married King Henry Il of England, and in this way, the law, found acceptance in England, Gradually, the Laws of Oleron came to be adopted by all the parts of Western Europe and soon became recognized quote in maritime matters.‘The Black Book referred to these laws as being part of the maritime laws and ancient customary of the seas. It stated that they were part of the laws of England and they have ever since form the basis of part of the maritime law of England and indeed of any other country. The wordings of the Laws of Oleron is thought to have been taken from actual judgements delivered by the Island’s Maritime Courts. Two of the laws i.e. the 6" and 7" contain principles now embodied in the Merchant Shipping Act, They relate to the master's responsibility towards seamen who are injured ashore as a result of their own folly and those who are injured or fall sick abroad the ship. They read as follows. “Mariners hire themselves out to their masters, and some go ashore without leave, and get drunk and make a row and there are some of them who are hurt; the master is not bound 10 have them healed, nor to provide them with anything: on the contrary, he may properly put them ashore and hire others in their place; and if the others cost more than they did, they ought to pay, ifthe master can find anything of theirs. But if the master sends a mariner on any service of the ship, and the mariner wounds himself or is hurt, he is to be healed and maintained at the cost of the ship. It happens that sickness attacks one of the ships company, or two or three, and the sick ‘man can do nothing in the ship as he is ill, the master ought to put him ashore and seek a lodging for him and furnish him with at allow or a candle and supply him with one of the ships boys to tend him or hire a woman to murse him; and he ought to provide him with such food as his on the ship, that is to say with as much as he had when he was in health and nothing more unless he pleases.If the sick man wishes to have more delicate food, the master is not bound to find it, unless it be at the sailors expense, and the ship ought not to delay her voyage for him. On the contrary, she should proceed on it; and if he should recover, he ought to have his wages for the whole voyage and if he should die, his wife or nearer relative ought to have his wages for him. Other sections of the laws relate to the masters responsibility for the safety of the crew and the Cargo, the food to be had on board, and matters of navigation. With regards to discipline there is one section with no counterpart today which stated: “and if it so be that the master strikes one of his mariner, the mariner ought to abide the first blow, whether it be of the first or the palm of the hand; if the master sirikes him again, he will defend himself” A further provision gives the mariner the alternative of paying a fine of a 100 shillings or loosing his hand should he hit the master first, Before the Black Book, there had been two earlier attempts to confine, the jurisdiction of the Admirality court by a statute, The first of this was entitled “An Aet concerning what things the Admiral and his Deputy shall Meddle”, The combined effect of this was to limit the court fo the consideration of certain civil ‘matters and crimes on the High Seas. In practice, most of the early cases concerned “Spoils and Piracy”. The term “High Seas” came to be construed as meaning the low water mark in tidal rivers and on the coast, though the court itself contended for high water mark. For these reasons, it was the custom to hang those convi ted by Admirality sessions in certain cases upon allows, the foot of which was in the water at low tide. The most famous place was at Execution Dack Whipping in London. As late as the beginning of the 19" century, the warrant fixing the date and time of execution was marked by the Admirality judge as follows:Because of the great volume of work done by the admirality court in individual time, serious controversy, took place between the court and the courts of common law which continued for centuries. When matters at last adjusted themselves, the admirality judges no longer had a general maritime jurisdiction in the Law of Contract, though they still had indisputed authority on all maritime contact cases where the common law gave no redress. In tort, however, the Admirality courts had complete jurisdiction over all tortious acts done on the High seas, and this jurisdiction it retains today. The court retained its criminal jurisdiction until 1834 when the trial of crimes committed upon the High Seas was transferred to ‘the Central Criminal Court. ‘Now, one advantage that the Admirality court possessed over all the other court was the ‘fact that in it, Litigants could proceed against the Ship herself as distinct from the master or owner. This procedure in rem involved, and can still involve, arresting the vessel by nailing “the writ to the mast. Nowadays, service of the writ is usually accepted by the solicitors acting for the "shipowner but service of the writ does not prevent the ship sailing. It is the ‘Warrant of Arrest? issued out of Admirality Registry at the instance of the plaintiff’ and lodged with the ‘Admirality Marshall for execution that enables the ship to be taken into custody. The warrant is executed on the vessel in the same manner as the writ is served but it must he effected by the Marshal’s Officer in London or by its substitute, usually the Local Customs Officer acting on his orders else where. It sometimes happen that the officer or his substitute has to remain on board or immobilize the vessel so that she could not break arrest. ‘The major importance of arrest is that the ship will only be freed if the satisfactory bail or other similar security is given or if the vessel is sold by the marshal on the order of the court to‘meet the amount decreed Sale by the marshall gives a clean title. The threat of arrest is in many ‘cases is enough to make the defendant enter an appearance to the writ and provide bail. The wvantages to the plaintiff of the procedure in rem are very great. Service of the writ where the endant is a Foreign Company, presents no difficulty. The bail representing the vessel provides security for the satisfaction ofthe plaintiff's claim when properly proved, ‘The provisions regarding bail means that no ship need be detained unnecessarily and this, to the advantage of the ship owner. Until 1615, Latin was the language used in the court of Admirality, Under the Common Ith, it was banned but the ban lasted only 9 years and upon the Restoration of Charles Il, the of Latin was resumed and so continued until 1733. Soon after this, reports of the cases decided in the court began to be published, The cs of these records was to establish firmly the principle of ‘Stare Decisis’ which had not followed with any thing like the inflexibility of the common law adherence to the binding of precedents. In the year 1875, the High Court of Admirality was merged with the “Chancery and Common Law Courts into the new ‘High Court of Justice” and it is today part of the Probate, Divorce and Admirality Division. Notwithstanding these level of independence, it is always possible to tell ata glance whether or not the President when sitting in his own court js trying an Admirality case or not because on such occasions, there is placed before him a Silver ‘Oar mace which is brought into court by the Admirality Marshal. ‘The origin of the Silver Oar as the symbol of authority of the Admirality Court is earlier than 1485 and may even be earlier. This no doubt emphasies to all those who turn to the court of “Acmirality for justice, the antiquity of the jurisdiction they are invoking.m The Subject Matter of Admirality & Maritime Law ‘We've already noted that the Seas are second to none among God’s endowments to man and that the Oceans are perhaps the most efficiently employed as an avenue of transport. The great bulk indeed about 80%, of the exchange of goods among nations still depends on ocean- going vessels. The oceans, as we have noted, are also used for speedy trans-oceanie communications. This dates back to 1866 when the first telegraph cable was laid between Ireland and New Found land, today, the continents are linked by thousands upon thousands miles of cables. Scientific research into the seas, including the Ocean bottoms, is another significant activity on the Sea, Besides, the sea is the source of everything that sustain lives, the water we drink, the fishes that supply man with rich protein etc. There can be no doubt that the sea has immense economic potential. It has abundance of mineral resources embedded in its bowel, which can be exploited under the modern state of technology to sustain the economies of nations and provide the good things of life. Research has revealed the presence of significant amounts of mineral resources on the sea bed, notably oil, gas, sulphur, magnesium, bromine, salt, oysters, sheltes, tin, sand etc, Indeed, it is estimated that 20% of the world’s oil and 10% of the world’s natural gas come from offshore wells, At least 35% of the world’s oil reserves are also submerged in the seas with 2 disputed area of Aegean, Sea, the South China Sea, Scotia Sea and the North Sea having the greatest under water oil potential. Research has revealed the presence of tens of thousands tons per square mile of mineral nodules containing manganese, copper, nickel, cobalt, titanium, iron, aluminium, molybnum, |‘vanadium, and zironium, These are vital ingredients to the world’s industrial machines. The nodule belts reputed as the most prolific sea bed nodules straddles a Pacific rectanguler of some 12,000 miles in width and spans the Pacific from Mexico to Marshall Island and from Tuamotus ‘Archipellago in the South Pacific to the Califonia Coast in the U.S. This belt is @ potential source of strategic minerals for the mineral starved countries of Western Europe, U.S. and Japan. It is noteworthy that man has never doubted the fact that the oceans are a source of inestimable value to him, From earliest historical times, there has been evidence of the critical role of the seas in commerce and in economic and political expanse. The Venetian and the Greeks were able to capitalize on the advantages of proximity to the sea. The Hanseatic League cities, the Venetians and the Geonese have places in history partly because of their strategic positions in the overall trade pattern, but also because their community organisations were near perfectly adapted to the exploitation of stretches of the oceans. As a matter of facts, there have been people who quite literally roamed the seas. Of this, mention may be made of the Norse — ‘men and the Polynesians to these people, the seas provided a means by which pressures of population upon resources found a release through migration. ‘These people engage in the open exploitation of other peoples through piracy and extortion. On the other hand, the seas were to the successful city states the means by which population pressures will be alleviated by transporting resources from peripherial regions to the centre. It is remarkable that until the modern period in history, the nations that were best capable of using the seas to marshal resourees were those that gained and held economic and political ascendency. Rome, Portugal, Spain, The Netherlands and England all of them sea word looking states fall into this category. In point of fact, ever since the evolution of life began from the Premevial Seas more than 350,000 years ago, men have gradually moved away from the seas and 10shed most of the amphibian attributes. In this new milieu, as man and his progeny multiply, and gained more knowledge about their environment, so did their extravagance and wanton waste of resources increased. In the course of time, the more developed nations exhausted most of their raw materials. They had to invade the less developed areas for supplies, but by the 20 century, most of the dependent territories had won political independence and had begun to assert their ‘economic independence. The assertion of economic independence on the part of the developing nations resulted in the decline in the amount of raw material upon which the economy of the developed countries depended. ‘The latter therefore resorted to exploring the possibilities of obtaining raw materials from elsewhere. It is a fact that all lands on the globe today are now owned and occupied. There are therefore only two areas left for exploration and exploitation: the ocean including the seas and the outer space. Exploration and exploitation of the outer space is just now proving attractive and there is high risk as well as heavy expense involved. These have left only the seas and the oceans as the only areas for exploration and exploitation. m1 The Importance of the Seas to Developing Nations and Effect of Marine Activities The importance of the Sea as an area of exploitation has however only recently come to the attention of the developing countries. The truth of the matter is that until recently, the developing countries do not show sufficient interest in the development of the seas because of their inefficient facilities. A number of factors account for this AS $.M. Asante has identified, developing countries tend to show little or no interest in the development of their seas and oceans, much less the law pertaining to them because they are deeply engrossed with the 11development of their land areas. Besides, even where the seas ought to form alternative the developing countries lack the technology and the expertise to research, control and utilize their seas. The developing countries also lack the ability and the where with all for exercising jurisdiction over these areas. The navies of most of the developing nations are still small and hardly sophisticated to ‘effectively occupy and protect their territorial waters. Even nations which have navies did not ind it easy to fix the limits of their territorial maritime jurisdiction. ‘The developing countries also hardly possess enough information on the seas and the pe of the resources to be exploited from it. ‘There was therefore the risk that in contributing to formation of the rules of international maritime law, they could bargain away their interests, the same way some native chiefs were prepared to grant a hundred year concession to gold or ese miners in certain part of Africa in consideration for only a few cases of schnapps. The developing countries did not also have the means or facilities for the exploitation of High Seas. So, the idea of the high seas as a ‘res nullius’ and therefore free for all nations never be in their interest. Today, the picture has changed: man is again turning to the seas. The world’s population is increasing at an alarming rate, thus challenging the capacity of the planet to provide adequate ‘means of subsistence. Incidentally, the greatest population has occurred in the poor South, a region least capable of affording to support their population because of lack of appropriate resources to do so. ‘The phenomenal increase in population has therefore had great repercussions for the developing Countries. 12 important areas for exploitation because of the unfavourable conditions of agriculture, most ofWhat is alarming is that the developed nations seem to have tamed the seas to their tage. We've already noted that an estimated 30% of the world’s petroleum oil and gas untapped in the seas. The developed nations are perfecting the devices for living and ing under the seas. Their development of the means of exploiting undersea minerals have an advance stage. All these have deleterious impact on the oceanic eco-system which ot afford to ignore. Technology is advancing and spreading even faster than the geometrically increasing rate lation. ‘The recent development of nuclear energy have also created a quali change "s potential to alter irreversibly the forces of nature, All these affect the oceans. The it kinds of human activity impact on the oceanic eco-system and this range from the ‘tion of pollutant into the ocean from continental sources and navigation to the ‘ion of the resources including both fisheries and sea bed mining and drilling and other extraction. There is also the physical alteration of the geologic characteristics of the and assorted miscellany of activities, such as scientific research, oceanic test of nuclear and recreational use of the ocean, which all impact upon the oceanic eco-system. It merits emphasis that the greatest source of pollution to the ocean is the waste materials luced into the oceans from the land. The oceans have indeed become the garbage pit of the |. Municipal waste and sewage are dumped in the oceans wherever it is regarded as cheaper do so than to dispose of them in another manner. Even greater in volume than municipal are industrial waste. These are introduced either directly into the ocean through outfalls or tly into the ocean through river systems that eventually run into the oceans or through the josphere entering the ocean. The liquid waste from factories are also becoming chemically sophisticated. ‘There is also the pollution arising from the use of chemical pesticides and 13artificial fertilizers in farming. ‘These results in river contamination and eventually in oceanic contamination The sea is also used for dumping poisonous gases and other noxious chemicals in containers which deteriorated in two or three decades, releasing their contents. Liquid radioactive wastes from nuclear power plants as well as tritated waters are being introduced into the oceans from nuclear power plants. Airplanes too do eject a vast amount of smoke and other pollutants as they fly over land and water. These pollutants find their way into the ocean waters. We've already noted that maritime or marine navigational activities also constitute a ‘source of environmental injury to the ocean, De-ballasting and cleaning operation of tankers and ‘other ships account for the oil spilled into the ocean, Effluents from the operation of ships as ‘well as garbage and sewage also do find their way into the ocean Accidental loss of toxie chemicals in seaports also pose a wide range of threat to the marine environment. Offshore oil drilling is now a source of petroleum, Spilling from such drilling operations can be a very large source of oceanic contamination as well as a threat to oceanic wid life. Oceanic farming also has severe economic drawbacks, rarming in any part of the ocean might disrupt the ecological balance of the local system with a possible impact on the larger oceanic system. There is also the problem of the land locked states, and many of them are in Africa. While some hold the view that the seas only remotely influence the destinies of the land locked countries and that consequently, such countries have no right, legal or moral, to their nearest seas or port, there are those who take note that most national boundries run athwart mountains and rivers cut across ethnic and racial groups and disregard language and cultural barriers. 14Consequently, they assert that inexorable historical force have been the most dominant factors in the creation of national boundries today. Some hostilities in the not-distant past between nations have been attributed to the desire to have an outlet to the sea. For instance, to some, the hostilities between Uganda and Tanzania in 1979 were partly inspired by Uganda's dream to have an outlet to the sea. ‘The same reason ‘were ascribed to the squabbles between Euthopia and Somalia land and between Isreal and Egypt. The fore-going all show the multifarious challenges for Maritime Law and the uses into which the seas have been put. Is Maritime Law, International law? From our discussion so far, it is obvious that the majority of this planet is covered with ‘seas and oceans and that to get from one part of it to another, it has since time immemorial been necessary to traverse large bodies of water. And so, over the ages, men have been compelled to traverse the oceans in vessels of increasing sophistication in pursuit of trade and commerce, acquisition of new territories, exchange of ideas, dislomatic relations, sporting relations and so on, It is only natural that a myriad of problems requiring detailed regulations will atise from the seeming simple interaction of men with waters that cover the earth, As ships traverse from ‘one country to another, they have to comply with two set of laws, namely ‘those applicable to their states of origin’ and ‘those applicable in their states of destination’, They have to be identified as belonging to a particular country, this erequires that they are registered in that country. 15To be safe at sea, they need to comply with regulations governing ship construction, ‘equipments, communications etc, ‘They require a competent crew, this makes it necessary to comply with regulations on the training and certification of sea farers, their conditions of service ‘and welfare. Since all ships must carry goods and or passengers, there must also be rules on the safety and welfare of passengers and, or the storage and safe carriage of goods. The owners of the ship have to be readily ascertainable and their right to lease or charter their ships to other parties protected by law, Where inevitably, dispute arises between persons claiming title to or the right to use a ship or in regard to expenses relating to the use a ship, a machinery must exist for the resolution of problem arising between the owners of ships and owner of cargo or between the owners of two vessels which collide or between ship owners and those who render assistance to them in times of trouble or difficulty. What is more, maritime life as well as the environment have to be protected from pollution, from harzardious or unnatural substance carried in ships and likely to be discharged into the seas in times of emergeney or even deliberately. We can see from the foregoing why this seemingly simple process of ships traversing the ‘oceans from one country to another or more often to a succession of countries is fraught with potential conflicts and problems and this is what Maritime Law is about. Questions have been raised as to whether maritime law is Intemational Law. The view has been expressed that Maritime Law, despite the similarity in its provisions, is still national law. The view is predicated on the position that what gives the impression that maritime law is {ntemational law is the fact of the wide spread similarities and con-currence in the provisions of Maritime Laws of the various nations. 16We have noted earlier that there are two different event aspects of maritime law namely “intemal Regulation of each particular state’ and quite importantly the regulations governing relationship with the authorities of other states or the ships of other states. Now, the domestic regulations of a state protects its interest in shipping. These interest covers the followin; (1) Ownership of vessels by its nationals. (2) Proper registration of ships (3) Use by nationals of ships of the nation either on charter or as general or common carriers. (4) The safety of ships i.e. safety of constructions, equipments, navigation, loading and ‘management, survey and certification of ships. (5) The welfare of sea farers and passagers as well as dock workers. (6) Contractual aspect of carriage of goods by sea. (1) Safety and adequacy of port facilities. (8) Training and qualification of sea forestry personnel (9) Pollution of water by oil and dangerous goods (10) The jurisdiction of courts over disputes and offences, within national waters and on the high seas. (11) Regulation on the use of piers and port (12) _ Sea fisheries and the exploitation of offshore resources But there is also the international aspect. In point of fact, much of the national legislation on shipping enacted by the state is derived from rules of international application. Newly independent nations inherit a large body of such laws from their erstwhile colonial masters. v7‘These rules have been developed over the centuries from customary rules and convention and resolution of actual problems. The customary rules and conventions are also the source of much of the intemational Jaws on shipping and maritime navigation generally. Originally, these rules were confined to customary practice but in recent times, they have ‘been put into written codes or conventions. As already noted, among the oldest are the Laws of ‘Oleron and Wislby. ‘As maritime traffic increased, and ships became studier and faster, greater international regulation of maritime traffic and affairs became necessary. Conferences were held by the major shipping nations, ‘These conferences usually ended in the adoption of a convention which was the international approximation of an Act of Parliament. An example of such a convention was the 1924 Convention on Bills of lading otherwise known as the Hague Convention. It is instructive for our present purpose that the Hague convention starts as follows. “The president of the German Republic, the president of the ‘Argentine Republic. His majesty The king of the Belgians, The president of the Republic of Chile. Having recognised the utility of fixing by agreement, certain and uniform a convention with this object and have appointed plenipotentiaries who, duly authorized thereto, have agreed as follows” From a small “club” of maritime nations getting together to agree on rules and regulations for their mutual convenience, the trend is now a recognised phenomeno. The number of such conventions has inereased especially in recent times” attendance is no longer limited to a small group of nations but extends to the whole world. When a subject is of sufficient importance, regional grouping of countries ensure that clauses in a particular proposed convention protecting their interest are adopted. Besides, it is no longer left exclusively to the initiative of government to start the ball rolling. Since the era of the 18gue of Nations through the United Nations, various intemational agencies have come into ing which convey regular conferences for the purpose of making conventions. Among such cies are the International Maritime Organization (IMO), The United Nations Conference on le and Development (UNCTAD); the United Nations Commission on International Trade sw (UNCITRAL) and the United Nations itself. Apart from those conventions which came into existence immediately after their clusion, there also exist a number of amending Conventions, Protocols, Regulations, mmendations ete which cover practically every area of Intemational Maritime Law. early, such conferences will continue to be held regularly as existing conventions become ‘obsolete in part requiring updating to reflect developments in technology or new safety standards. For example, the most important convention dealing with maritime safety is the Safety of Life at Sea Convention of 1974 (SOLAS). This Convention has been substantially ‘amended several times since 1948 at roughly at 12 yearly intervals. It is also worthy of note that while some conventions are accepted by a large number of states, for example, the Hague Convention, others are acceptable to only handful of nations. Again, sometimes there may be two or more conventions on the same subject which are accepted by different countries. For example, the Hague Convention on Carriage of Goods by Sea was followed in 1978 by the Hamburg Convention on the same subject. It is also note-worthy that even if a country has signed, ratified or aceeded to a convention, that convention still does not in many countries become law until an enabling Act has been passed by the legislature of that country specifically incorporating that convention into the laws of that country. Such is the case in Nigeria (S. 12 1999 Constitution), 19From all that has been stated above, it becomes manifest that the object of International Maritime legislation is to provide guidance in the maritime sector. And so, if a ship owner is proposing to send his ships to Nigeria for example, he would be prudent to ascertain which {international maritime laws are applicable in Nigeria. Thus, following the Safety of Life at Sea Convention (Solas) is applicable in Nigeria, then any ship coming to Nigeria must ensure that her safety standard accord with Nigerian legislation on the subject. Then, if'a ship owner knows that the country to which his vessels ply operates, for example the Hamburg Rules, then he knows what to expect in the event of a dispute occurring in that country. So, the relationship between National and International Maritime Laws is obvious. While nations enact specific laws to protect and regulate their interest in key areas of maritime affairs, most of these legislation derive from rules of international application. ‘These rules continue to be developed at international conferences under the auspices of various international agencies including in particular, the international maritime organization, the UNCTAD. The UNCITRAL and even, the United Nations itself. Broadly speaking, Maritime Law has its international and national aspects. The international flavor permeates even the national aspect. v SOURCES OF MARITIME LAW Maritime law has its international and national aspects. The sources of the law with accordingly be discussed along these broad lines of demarcation. Int nal Article 38 of the Statute of the International Court of Justice provides that: 20(1) The Court whose function is to decide in accordance with international law such disputes as are submitted to it shall apply. (@) International conventions whether general or particular, establishing rules expressly recognised by the contesting states. (b) International custom, as evidence of a general practice, accepted as law (6) The general principles of law recognised by civilized nations (a) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicist of the various nations as subsidiary means for the determination of the rules of lav. (2) This provision shall not prejudices the power of the court to decide a case ex aequo et bino if the parties agree thereto, 'A-C above are regarded as the most authoritative sources of International law. ‘They follow the wordings of an equivalent article in the statute of the Permanent Court of International Justice (PCL). While the list is not exhaustive of the sources of Intemational law, it at least contain the major ones. These sources listed above also constitute the sources of Maritime law in its international aspect. In the specific context of the latter, the sources of international law can generally be divided into the ‘Customary’ or Conventional’, ‘The latter term refers to treaties which, as we have seen, are often termed conventions. TREATIES ‘A treaty is an agreem: creating binding obligation on subjects of international law. They are mainly called convention, protocol, accord, compromise, regulation, provision, pact, Charter, Statute, Act, Convenant ete. 21‘Treaties constitute the main instrument of condueting international relations, International co-operation is also being carried out through them. Treaties can be broadly divided into two, namely: (1) Contract treaties (2) Law-making treaties ‘A contact treaty is one that merely regulates a specific relationship between two or more states. ‘A law-making treaty lays down rules for a number of states, It is easier to terminate a contract treaty than a law-making one. It should be note that treaties bind only the parties. They are, however, the nearest to legislation in a partially organized intemational society. What is more, a reoccurrence of a provision in treaties may create an international customary law to that effect. Since a treaty is essentially ‘contractual’ in nature, it will be the special law for the parties to it but where uniformity is manifested in treaties, as a class, it may also be the general law. In the field of maritime law, there are a number of treaties; (1) The United Nations Convention on Law of the Sea 1982 {@) The Intemational Convention for the Unification of certain Rules of Law relating to the Bill of Lading (The Hague Rules) (3) The Hague - Visby Rules (4) The United Nations Convention on the Carriage of Goods by Sea ((The Hamburg Rules) (5) The United Nations Convention on the International Multi-Modal Transport of Goods (6) The United Nations Convention on the Liability of Operators of Transport Terminal 2(7) The Hague Convention on the Law Applicable to Contract for the International Sale of Goods. (8) The International Convention for the safety of Life at Sea (SOLAS). (9) The Intemational Convention on Load lines (10) The Special Trade Passenger Ships Agreement (11) The International Convention for Safe Containers (12) Convention on the Intemational Regulations for Preventing collision at Sea (13) Convention on the Intemational Maritime Satelite Organization (IMMARSAT) and Operating Agreement (14) The Torramolilos International Convention for the safety of fishing vessels. (15) Intemational convention on standards of training, certification and watch keeping for sea fearance (16) International Convention on Maritime Search and Rescue (17) International Convention Relating to Intervention on the High Seas in cases of Oil Pollution Casualties (18) Convention on the Prevention of Maritime Pollution by dumping of Waste and Other matters (19) International Convention for the Prevention of Collision from Ships, 1973 as modified by the protocol of 1978 (MARPOL 73 / 78) and the Annexies Annex I Annex Il Annex IIT Annex IV and Annex V (20) Intemational Convention on Civil Liability for Oil Pollution Damage (21) Convention Relating to Civil Liability in the Field of Maritime Carriage of Nucleus Material 23(22) International Convention on the Establishment of an International Fund for ‘Compensation for Oil Pollution Damage (23) Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea (24) Convention on Limitation of Liability for Maritime Claims (25) Convention on Facilitation of International Maritime Traffic (26) International Convention on Tonnage Measurement of Ships (27) Intemational Convention for the Prevention of Pollution of the Sea by Oil (28) Intemational Regulations for Preventing Collusion at sea INTERNATIONAL CUSTOMARY LAW This is the general practice of state that is accepted as custom under certain conditions. Customs constituted the most important source of international law. The situation has however changed in recent times with the large number of multi-lateral law making treaties. Customary law may be distilled from the practice of states as revealed in press conferences, official statements and acts of states, official instructions to diplomats, consuls, military commanders, decisions of municipal courts and tribunals and the practice of international institutions such as the international Maritime Organization (IMO) and tribunals like the International law of the Sea Tribunal. For a rule to become custom, there must be a constant and uniform usage. Where states laws are inconsistent and municipal decisions conflict, and text writers are divided them no uniform trend can be said to be discernible to support the existence of a custom. States must also act under the impression that the action in question is obligatory in law. This is what is meant by ‘Opinio juris sive necessitas’ (the action in question must be obligatory). States must feel 24compelled by a legal obligation not habitual action. Action necessitated by reason of comity or courtesy is not customs but mere usage. Usage ends where custom begins. Usage may differ among states, customs must be consistent, an occasional deviation from custom is however not necessarily fetal. No particular duration i also required for a custom to materialize. A long period may, however, provide evidence of consistency and acceptance. Custom may be General or Particular; it ean even apply between as small as two states. A custom may cease to exist through desuetude or the rise 0 conflicting customary rule or conventional rule. It's for a party alleging a local regional custom to prove it and show that it is binding con the other party and reflect aright relating to the claimant and a duty incumbent on the other. In economic affairs, including maritime affairs, there are now very few recognised norms of customary international law. There is a heavily disputed jurisprudence relating 10 national goverment taking of alien property there are also some fairly well recognized norms of the law of the sea which relate to economic matters regarding the sea, Beyond this, there is very little in the way of substantive international law, customary norms i.e. norms other than ones dealing with procedures for government to government relations or of relations among firms or individuals. In the few cases if goverment relations or of relations among firms when international law is deemed to apply to firms or individual When dealing with international economic matters including maritime matters, one is dealing primarily with treaties. GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILIZED NATIONS ‘These are called into fill a lacuna or gap in the law so that the court is not incapacitated from giving a judgement non liquet. They are a reservoir of principles from whichthe court may draw in appropriate cases. They underline the dynamic nature of international law and the creative function of the court in administering it. JUDICIAL DECISIONS: These are a subsidiary means for the determination of rules of law subject to Article 59 of the Statute of the ICJ which lays down that “a decision of the court is binding only on the parties and in respect of that particular case. However the ICJ has always treated these decisions with great respect and refer to them frequently. Sometimes, they have proved to be the best means of proving the law. When repeated , or frequently cited they become not merely evidence but in fact create the law and form part of intemational practice. ‘The decisions of municipal courts are treated with caution, They nevertheless have evidential value especially where there is a general conformity. Decisions of Arbitral Tribunals are also respected and referred to by the ICJ. Under Article 38(2) of the ICJ, the IC} may give decision ex aequo et bono if the parties so desires. In such a case, it may disregard rules of International Law. OPINIONS OF TEXT WRITERS These are also subsidiary means for the determination of international law. The importance attached to a text will of course depend on the prestige of the author and the extent this opinion withstands the test of time. In the early times, the works of text writers were a source of international law. ‘Thus, writers like Grotious (father of modem international law), Viattel and Vittoria exercise considerable influence on the law. The statute of the ICJ refers to ‘writers of the various nations’. Reliance on text writers has diminished with the growth of judicial activity of state parties as evidenced in accessible records and reports.JUS COGENS These are preremptory norms of international law from which no derogation is permitted and which invalidates an inconsistent treaty provision. ‘The acceptance of jus cogens is, a recognition of the fact that mere agreement between states cannot have the highest value, but rather that the need to maintain peace and protect all peoples require that certain basic values, ‘must be upheld. Jus Cogens rules override lesser principles that are in conflict with them an example in the field of maritime law is piracy jus gentium and slavetrading. SOURCES OF MARITIME LAW IN ITS MUNICIPAL ASPECT ‘The sources of Nigerian law as of other common law jurisdiction in Africa, are the Received English Law made up of the Common Law of England, the Doctrines of Equity and Statutes of General Application that were in force in England as at 1 January 1900; Nigerian Legislation, Customary Law; Judicial precedents and Intemational law. These are also the sources of maritime law in its municipal aspect. Nigeria possesses a detailed set of maritime and shipping laws. These include: (1) The Merchant Shipping Act (MSA) (2) The Ports Act (3) The Merchant Shipping load lines Act (4) The Piers Act (5) The Territorial Waters Act (6) The Exclusive Economie Zones Act (7) The National Shipping Policy Act (8) The Pre-shipment Inspection of Import Act 7(9) The Pre-shipment Inspection of Export Act (10) ‘The Carriage of Goods by Sea Act (11) The Sea Fisheries Art (12) The Cabotage Act (13) The Oil in Navigable Waters Act