Nigeria is undoubtedly, the biggest player in the maritime industry in the West African Sub-region, but the vast opportunities the industry presents are yet to be fully utilised due to non-implementation of industry policies and paucity of funds. In an interview with May Agbamuche-Mbu, Mrs. Oritsematosan Edodo-Emore gives in-depth insight into maritime arbitration and describes how Nigerian lawyers can take advantage of the huge potential in the sector. She is also a bilingual lawyer, Treasurer of the Maritime Arbitrators Association of Nigeria and Legal Adviser of the Nigerian Ship-owners Association. In addition, she is the convener of the forthcoming international maritime business to business conference in Nigeria from 7-8 September 2016.
You have enjoy a varied career of thirty five years. You are also one of the foremost Maritime experts in Nigeria and have advised as part of former President Obasanjo’s delegation in international-bilateral trade negotiations in 2000. What do you see as the place of the Maritime industry in Nigeria’s long-term development plans?
How time flies! It is amazing that 35years have elapsed since June 1981 when we were called to the Bar! It is a great honour to be recognised as one of the foremost maritime experts in the country.In all humility I give glory to God for this invaluable honour. As regards the place of the maritime industry in the longterm development of our great country, I would say that the importance of the maritime industry in Nigeria cannot be over- emphasised. In any coastal nation, the maritime industry plays a pivotal role in the overall development of the country.This is so because 90% of the world’s trade is carried by sea. Therefore a country that is blessed with access to the sea is already on the map of world trade.What is left would be how to take advantage of the access to the sea and develop the industries and manpower that would make it possibe to actualise the natural benefits of the sea.That is why the African Union, for example is now stressing on the importance of developing the blue economy.On a long term basis, Nigeria must key into everything that relates to the development of the maritime industry,locally, regionally,on a continental basis and globally.
What is your assessment of the regulatory regime in the Maritime Sector?
I am a firm believer in, and practitioner of the principle of upliftment and encouragement.I also recognise that as a developing nation, Nigeria is a “work in progress” and so are her institutions .The Nigerian Maritime Administration and Safety Agency (NIMASA) is a body that could be repositioned to bring the benefits of the maritime sector into the hands of Nigerians.I am particularly concerned about about the Cabotage Vessel Financing Fund that has so far not been disbursed although some local companies have been shortlisted to benefit from it.We need to do all that it takes to make more Nigerian business persons and companies actually own ships,in order to derive maximum benefis from the industry.So there is still alot of work to be done at NIMASA.The Nigerian Shippers Council has only just been named the port economic regulator. It is a bit early to judge its achievements in that area although the appointment is clearly a welcome development .
The central role played by the Admiralty Jurisdiction Act 1991 in regulating Maritime transactions has led to calls for its reform and stakeholder involvement in the process. Do you believe that this is a proposition that will be advantageous to the industry?
The actual benefits or otherwise of any legislation become clearer after that legislation has been in existence and used for a number of years .If after 25 years of use, stake holders are calling for direct involvement in the process of developing maritime legislations or amending one such as the Admiralty Jurisdiction Act 1991, then that is a welcome development.However, because maritime legislations have international effects,it is wise to involve the Nigerian Maritime Law Association which is the national branch of the Comité Maritime International in any process involving the development or amendment of maritime legislations in Nigeria .
Maritime disputes are often very specialised in nature and require technical knowledge and understanding which in turn is gained from years of practice in the area. As a committee member for the bi- annual International Maritime Seminar for Judges, how are Judges being enabled to develop and maintain the necessary expertise to effectively adjudicate the myriad of Maritime disputes before the courts?
The bi-annual International Maritime Seminiar for Judges organised by the Nigerian Shippers’ Council in collaboration with the National Judicial Institute provides a good training ground for the development of maritime jurisprudence in Nigeria and other countries in West Africa.So far judges of the Federal High Court,(which is the court with exclusive original maritime juridiction in Nigeria), the Court of Appeal and the Supreme Court form the core delegates to the seminar. Lately, the judges of State High Courts have also been invited to the seminar since the Court of Appeal sources its judges from both the Federal High Courts and State High Courts. The judges in the courts of superior records in Ghana, the Gambia, and Sierra Leone have also enjoyed this training opportunity presented by the International Maritime seminar for judges .The cross fertilization of ideas and sharing that this event presents is invaluable for the development of maritime jurisprudence in Nigeria and West Africa. In my view our judges are all the better for it because the event is facilitated by lawyers and judges with actual and practising knowlege of the various maritime subjects.Its a hands on training .
In this area of law, more than others perhaps, there is an argument for the admission of experienced legal practitioners to the Bench in order to bolster the ranks of esteemed Justices with the practical knowledge and expertise to navigate Maritime law. Would you agree with this?
Yes I do agree that practitioners of maritime law should be recruited to join the bench in order to make the maritime bench richer, more robust and leading to sound indepth treatment of the intricate subjects that are presented by international maritime law.
Given the high-capacity turnover nature of Shipping and the Maritime Industry in general it is a basic business rule that time is of the essence for various parties involved. When litigation is involved however, the effect of delays are often greatly damaging to commercial concerns and the cost of time lost is often greater than the damages to be recovered. Arbitration awards are binding and enforceable by Nigerian Courts, and in comparison they appear to offer faster resolution of disputes. What do you see as the effect of Alternate Dispute Resolution mediums such as Arbitration on Maritime Litigation?
The huge capital outlay which shipping commands, means that shipping disputes must be resolved timeously and arbitration provides an excellent avenue for doing so, provided parties abide by the awards and the awards are actually enforced.When a party challenges an award, or appeals against a court jugdment which upholds an award, that of course defeats the essence of arbitration as a mechanism for timely resolution of maritime disputes .The Maritime Arbitrators Association of Nigeria [MAAN] provides an excellent platform for the settlement of maritime disputes.It has its own rules and among its membership are seasoned arbitrators recognised in other jurisdictions .
Experts in the Maritime Industry have advocated for the establishment of a regional Arbitration body in Nigeria to limit parties referring their disputes to other well-known seats such as Paris, London and Singapore. Do you support this proposition?
As I mentioned above,in Nigeria we already have the Maritime Arbitrators Association of Nigeria [MAAN] comprising world acclaimed arbitrators among its membership. It is now up to Nigerian business persons and stake holders to nominate MAAN as an appointing body in their contracts and say that disputes should be resolved according to the MAAN rules and that the place of arbitration should be in Nigeria.Although international partners may prefer to nominate Paris, London , and Singapore as the venue of arbitration, Nigerian stake holders must realise arbitration in Nigeria will not develop except Nigeria is nominated in the contracts .
The confidential nature of maritime contracts and the preferences of the contracting parties lends itself more conveniently to Arbitration and other means of Alternative Dispute Resolution. However the controversy as to whether Section 20 of the Admiralty Jurisdiction Act renders arbitration clauses ineffective in law in Admiralty matters is one that cannot reasonably be ignored. In your opinion does section 20 of the Admiralty Jurisdiction Act make arbitration clauses null and void before the courts?
There are conflicting judgements of the superior courts on this subject and I dealt with this exhaustively in the paper I presented titled “Section 20 Admiralty Jurisdiction Act 1991 and arbitration clauses in maritime agreements ”at the 13th Maritime For Judges held in Abuja from 10-12th June 2014 .This paper was also published in THISDAY LAWYER. Suffice it to quote the conclusion which I made then and which is still relevant today –
“From the cases reviewed it is clear that we need some consistency as regards the the effect of S.20 Admiralty Jurisdiction Act 1991 on foreign arbitration clauses and foreign jurisdiction clauses.Both at the Court of Appeal and at the Supreme Court levels there has been conflicting thoughts.As at today, every case will be treated on its on facts.But what is certain is that the dictum of Uwaifo JCA as he then was when he stated in 1994 in the MV Lupex that S.20 Admiralty Jurisdiction Act 1991 was badly drafted and walking on its head, is still apt in 2014 !”
The Nigerian government has tried to encourage local participation in the maritime industry by introducing the Cabotage Act and the Nigerian Content Development and Monitoring Board. But despite these efforts Nigerian participation in the industry is still quite limited. What factors do you think limit the participation of Nigerians in the maritime sector?
Access to finance is a great limiting factor preventing interested Nigerian players from actively participating in the vast opportunities presented by the maritime industry in Nigeria.We understand from various interactions with the financial sector that Nigerian banks receive very short term deposits and because of that they are unable to finance shipping which has a long gestation period.So far, many strong players have sought foreign finance .This cannot augur well for the industry.There has been a call for the establishment of a maritime bank. This may answer some of the difficulties .
An important feature of the Cabotage Act is the Cabotage Vessel Financing Fund which is supposed to have been in operation since 2008. However, indigenous ship owners have not been able gain access to these funds and only few applications for funding have been approved. What can be done to improve accessibility to finance for indigenous ship owners?
As I mentioned earlier,failure to disburse the funds which have accrued in the Cabotage Vessel Financing Fund is a sore point in the maritime industry.We understand that previous experience with the Ship Building and Ship Acquisition Fund may be responsible for part of the inertia in this area.Yet if indigenous ship owners must play their role in the development of the maritime industry in Nigeria, access to finance is a must.In the present circumstance this can only be resolved by an interplay or partnership between the government, the banks and the indigenous ship owners
Not a lot is required to observe that security at Nigerian Ports is poor and these ports lack adequate manpower to effectively inspect imports in the country. Some reports have even alleged that lethal weapons are imported through the Apapa’s Container Terminal, Ilella near Sokoto, and Seme near Lagos. How would you propose these ports are fortified against such contrabands and this pervasive attitude is corrected?
First of all Nigeria must build local capacity in the area of inspection services and then reduce the number of personnel and organisations at the ports for greater efficiency.The ability to bring in lethal weapons through the ports is a sign of inefficiency .
Piracy and Oil bunkering in Nigerian waters are also another significant threat to economic activity on our water ways. What can be done to create the safe shipping zones Nigeria needs to ensure economic growth in the industry?
Armed robbery at sea and theft of oil rather than piracy is what is more common in Nigeria and in the Gulf of Guinea.This of course is a threat to the economy of the country as both local and foreign ships feel unsafe to sail to Nigeria. In actual fact sailing to Nigeria attracts a higher insurance premium as the country is classified as a war zone for many insurers abroad.
Creating a safe shipping zone around Nigeria requires great security participation. In this regards, NIMASA and the Nigerian navy are collaborating to keep the Nigerian shipping lanes secure . There has been calls for the establishment of Coast Guards. Perhaps the time is right to do so .
Despite efforts to position our ports strategically in West Africa as a regional hub, the port in Cotonou continues to be the port of choice for many importers. In your opinion why are our ports so far behind in loading times, clearing and forwarding periods and how can we deal with these problems?
Having an efficient and competitive port is a function of many factors .These include,cargo handling equipment,access to rail and road networks,cost of services, customs duties and tarrifs .The charges at the Nigerian Ports are said to be high and the ports infrastructure is inadequate compared to Cotonou port and even the Port at Tema, Ghana. Stakeholders and their resources move in the direction of the efficient and competitive ports .We have to invest in Ports infrastructure, road rail network links and the establishment of Port transit parks if we want to make our ports competitive .
Several pending maritime bills are before the National Assembly including the Port and Harbor bill and the amendment of the Cabotage Act. What is your estimation of the cost of these delays to the industry?
The Port and Harbor bill and the amendment of the Cabotage Act are important legislations that would greatly impact the maritime industry.Any delay in their passage into law naturally exerts a huge cost to the industry.
The Nigerian National Shipping Line (NNSL) wound-up in 1995, but is reported to possibly make a return under the current Ministry of Transport. What are views on the resuscitation of the NNSL?
Although the thoughts of the present administration may be to establish a national shipping line owned by government, this may not be the wisest option at this point in time. Given the antecedents of businesses owned by government, the wiser option may be to support the private industry stake holders to own vessels which would transport the nations foreign trade. Government may confine itself to ownership of training ships to build manning capacity but the actual vessels to carry Nigerian export and import cargo should be privately driven .
Drawing from your experience as a previous board member of Women’s International Shipping and Trading Association (WISTA), what can be done to encourage the participation of women in the maritime sector?
I represented Africa on the board of the Women’s International Shipping and Trading Association [WISTA] from 2011-2015.The international board membership has provided an invaluable experience. Given the vast opportunities which abound in the maritime industry, it would be self defeating for any nation, not to encourage her women to actively particpate in such a great industry. First of all , women should be supported to have access to finance, access to technical education in all spectrums of the maritime industry and freed from social discrimination barring them from full participation in the maritime industry. Above all, conscious effort must be made to position women in decision making and leadership positions in the industry.If women are not at the table when important decisions are being made, the invaluable and natural gifts of women cannot be brought to bear upon the industry, our nation or our civilisation .
You are bilingual, fluent in the French language and the Secretary General of Franco-Nigeria Chamber of Commerce and Industry, how would you assess the investment opportunities between Nigeria and France. Have there been any cross border trade between Nigeria and our French speaking neighbours?
It would interest you to note that although Nigeria is not a French speaking country, she is the largest trading partner of France in West Africa! That speaks volumes of the importance of Nigeria to France and vice versa.The Franco –Nigerian Chamber of Commerce is at the forefront of stimulating business between Nigeria and France by connecting Nigerian businesses with French interest and vice versa .The business interest of both countries pervades all segments of the economic value chain, ranging from Oil and Gas, food and nutrition,perfumery,fashion,security,education ,Transportation, Logistics to name a few
The fact that Nigeria is surrounded by French speaking countries means that Nigeria is a natural trading partner of Francophone West Africa.There is a huge volume of trade between Nigeria, Benin, Niger ,Chad ,and Cameroun although alot of it is undocumented .
We understand that you are convening an International maritime business to business conference very soon . Kindly throw some light on this impending event.
I have the great honour to be nominated by Zoe Maritime Resources Ltd to convene an international maritime business to business conference in Nigeria from 7-8 September 2016. The aim of the conference and exhibition is to attract foreign direct investment into the maritime industry in West and Central African Sub region and to stimulate Nigeria as a focal point and the hub of maritime activities in the Sub region. The conference and exhibition seeks to show case the maritime capacities and capabilities of key players in the maritime industry in Nigeria and in the West and Central African Subregion, in general, and to bring in foreign businesses to partner with Nigerian companies and those of other countries in the subregion.
The theme of the conference is “Maritime Trade & Investments – Catalyst for Growth”. The conference will take the form of round tables dealing with various subjects such as:
a. Development of Port infrastructure and the linking of rail road networks.
b. Development of Trucks Transit Parks
c. Shipbuilding and growth of marine crafts
d. Access to maritime finance and acquisition of marine vessels
e. Establishment of dry ports and linkages with landlocked countries
f. Maritime Education, development of seafarers and manning capacity
g. Maritime law and arbitration round table and the development of maritime jurisprudence in Africa.
h. Maritime security in the Gulf of Guinea
i. Global Business ansd Africa’s development
Speakers will be drawn locally and internationally.Participants will have opportunities for networking and business to business meetings with prospecive partners from around the globe .
It promises to be an intersting event that will showcase the Nigerian maritime industry to the rest of the world. Visitors are expected from Norway,Morocco,Turkey, the UK, Dubai, and the USA to mention but a few. We have to take our destinies in our hands to move this country and this continent forward.