By Vincent Obia
Early this month, Mr. Rotmi Fashakin gave a lecture to an in-house audience of the Nigerian Maritime Administration and Safety Agency (NIMASA). It was not about CAPITEL-D, an acronym for the new core values taking root at the agency where he serves as Executive Director (Operations). Rather, it was about the attempts by the federal government, through NIMASA, to regain Nigeria’s “lost glory in the comity of maritime nations”, as the agency’s Director-General, Dr. Dakuku Peterside, put it three years ago when an audit raised a question mark over the sector’s performance. It was about efforts to get Nigeria back to Category C of the International Maritime Organisation (IMO) Council, from where the country fell about seven years ago.
“A Finding is a major non-conformity; while an Observation is lesser non-conformity, and Areas for Further Development is also a non-conformity of a lesser degree than an Observation,” Fashakin explained, portraying palpable emotion as he described how Nigeria came to lose its prized status in the maritime world and the determination of NIMASA’s management to reclaim it. The same emotion has driven the Dakuku-led management of NIMASA to spearhead various actions to return Nigeria to the 20-state IMO Category C.
Category C comprises countries, which have special interests in maritime transport or navigation and whose election to the IMO Council will ensure the representation of all major geographic areas of the world. Nigeria lost election into the council in November 2011.
Then, in 2016, a report of the IMO Member State Audit Scheme (IMSAS) raised queries about Nigeria’s maritime sector. IMSAS is the mandatory audit of all IMO member states, “commenced from January 1, 2016, with the aim of determining the extent to which they give full and complete effect to their obligations and responsibilities contained in a number of IMO treaty instruments.
“The mandatory IMO instruments included in the scope of the scheme cover safety of life at sea (SOLAS 1974 and its 1988 Protocol); prevention of pollution from ships (MARPOL); standards of training, certification and watchkeeping for seafarers (STCW 1978); load lines (LL 66 and its 1988 Protocol); tonnage measurement of ships (Tonnage 1969); and regulations for preventing collisions at sea (COLREG 1972).”
IMO, a specialised agency of the United Nations, was established to develop and adopt regulatory and enforcement legislations for international shipping, while governments are responsible for implementing them. The audit scheme is part of the efforts to standardise shipping as a global business.
When a government ratifies an IMO convention, it agrees to make it part of its national law and to enforce all of its provisions. Apart from governments, other actors in the enforcement of international safety, security and pollution prevention standards as they relate to ships and shipping activities are Recognised Organisations (ROs), shipping companies, and shipboard personnel or seafarers. But, ultimately, the buck stops with the governments.
The IMO instruments implementation code for member states’ audit covers the following areas: strategy for compliance with the international obligations as well as its monitoring, assessment, and improvement; ratification and domestication of IMO conventions; and scope, which covers conventions on safety of life at sea, prevention of pollution from ships, standards of training, certification and watchkeeping for seafarers, load lines, tonnage measurement of ships, and regulations for preventing collisions at sea.
Member states are, thus, required to fully implement the following nine mandatory instruments: the International Convention for the Safety of Life at Sea (SOLAS) 1974 as amended; the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea (SOLAS PROTOCOL 1988); the International Convention for the Prevention of Pollution from Ships 1973 as amended (MARPOL 73/78); the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships (MARPOL PROTOCOL 1997); and the International Convention on Standards of Training, Certification and Watch keeping for seafarers, 1978 as amended (STCW 1978. Others are the International Load Lines 1966 (LL 1966); the Protocol of 1988 relating the International Convention on Load Lines, 1966 (LL PROTOCOL 1988); the International Convention on Tonnage Measurement of Ships 1969 (TONNAGE 1969); and the Convention on the International Regulations for Preventing Collision at Sea, 1972 as amended (COLREG 1972).
The IMSAS audit follows a procedure that includes Planning, Preparation, Conducting the Audit, Reporting, Member State Corrective Action Plan, Audit follow-up, and Records.
Nigeria was found wanting in some aspects of the IMO instruments implementation code for member states during the 2016 IMSAS audit. But it has tried to close up the gaps by doing the necessary things.
The Final Report of the IMSAS audit of Nigeria had a Finding on strategy, which has been closed out in the country’s Corrective Action Plan. There was also a Finding on Nigeria in the area of assignment of responsibilities and obligations to ROs. This, too, has been closed out in the Correction Action Plan, with the Ros Agreement.
On the role of flag states as regards surveyors, the audit scheme requires a flag state to define and document the responsibilities, authority and interrelation of all personnel who manage, perform and verify work relating to safety and pollution prevention. A flag state should also ensure that personnel are qualified and have the requisite experience and technical knowhow to do the work.
In the 2016 audit report, there was a Finding that Nigeria did not comply with the criteria for selection, qualification and training of surveyors. In the Corrective Action Plan, however, a consultant was engaged to do a draft policy on recruitment, selection, qualification and training of flag state surveyors. It is hoped that the policy would resolve the issues of employment and placement of surveyors.
On the responsibility of flag states with respect to marine safety investigation, the IMSAS audit report on Nigeria contained a Finding that casualty investigations were not conducted in compliance with the mandatory rules of impartiality, objectivity and independence of investigators. The non-conformity has been amended in the proposed review of the Merchant Shipping Act, 2007.
Under the audit scheme, the obligations and responsibilities of coastal states include provision of radio communication services, meteorological services and warnings, search and rescue services, hydrographic services, and aids to navigation. The IMSAS audit of Nigeria identified all the above as Areas for Further Development. But in the Corrective Action Plan recently submitted to IMO, there were adequate steps to provide the services.
There were Findings as regards the rights, obligations, and responsibilities of port states, which include provision of port reception facilities, Port State Control, and keeping a register of fuel oil supplies. Nigeria had findings on all these, but they have been closed out in the Corrective Action Plan.
On the whole, the final report of the IMSAS Audit of Nigeria in 2016 contained 11 Findings, one Observation, and seven Areas for Further Development. Nigeria has taken necessary steps to fill the gaps.
But of particular importance are the attempts by NIMASA to bridge the shortfalls in the ratification and domestication of relevant IMO conventions.
States have the responsibility to ratify relevant IMO conventions, domesticate them, and promulgate regulations to give full and complete effect to them to ensure safety of life at sea and protection of the environment. The IMSAS audit of Nigeria had many findings in this area. But the Legal Unit of NIMASA, with the support of the agency’s management, has moved extensively to try to erase the deficits. There are ongoing processes by the unit to amend the Merchant Shipping Act, 2007 and NIMASA Act, 2007, and it has engaged a consultant to work on the two Acts.
Dakuku disclosed last month in Lagos that Nigeria had so far ratified 40 IMO and International Labour Organisation (ILO) conventions, covering maritime safety, labour and marine environment. The director-general who spoke during the 8th Strategic Admiralty Law Seminar for Judges organised by NIMASA in conjunction with the Nigerian Institute of Advanced Legal Studies (NIALS), also explained that 19 of the conventions had been domesticated by way of regulation, adoption or incorporation under the Merchant Shipping Act, 2007.
He stated that the agency was working with the Federal Ministry of Transportation, under the auspices of an inter-ministerial committee, to ratify additional six IMO conventions before the end of 2019.
The conventions are the Hong Kong International Convention for safe and environmentally sound recycling of ships, 2009; Protocol Relating to Intervention on the high seas in cases of oil pollution casualties (Intervention Protocol), 1973; and 1996 Protocol on limitation of liability for maritime claims (LLMC).
Others are 2002 Protocol relating to the carriage of passengers and their luggage by sea (PAL) 1976; International Convention on Standards of Training, Certification and Watch keeping for Fishing Vessel Personnel (STCW-F) 1995; and the Protocol of 2005 to the Convention for the Suppression of Unlawful Act against the Safety of Maritime Navigation.
Dakuku assured that NIMASA was working with relevant stakeholders under the IMSAS Corrective Action Plan Committee to ensure that all queries raised in the 2016 audit report on Nigeria’s maritime sector were addressed to facilitate the country’s re-election into Category C of the IMO Council.
Implementation of the International Ships and Ports facility Security (ISPS) Code is one area the current management of NIMASA has done very much to eliminate non-compliances. When Nigeria lost its IMO Council seat in 2011, the country’s implementation status was less than 13 per cent. But the compliance level has since risen to over 80 per cent.
Dakuku had in 2016, shortly after his appointment, said the IMSAS audit was in line with NIMASA’s vision for the maritime industry, stressing, “With the active support of the Honourable Minister of Transportation and the leadership of the agency, which is forward looking, focused, and determined, Nigeria will certainly regain its lost glory in the comity of maritime nations. NIMASA will immediately settle down to work to address these findings.”
By reforming, domesticating international conventions and protocols, and embracing global best practices, Nigeria is hoping to restore its maritime credentials.
The country has submitted its Corrective Action Plan, which contains details of the remedial actions and timelines, to IMO.
While late preparation was widely alleged as reason for Nigeria’s failure to make the Category C election at the last IMO Council voting in November 2017, there is no doubt that the country is prioritising early preparation ahead of the November 2019 assembly. And indications are that Nigeria would be a favoured candidate for Category C at the next IMO council poll.
But as Fashakin has cautioned, the IMO Secretary General may send the IMSAS audit team leader to follow-up Nigeria’s Corrective Action Plan with an on-site visit. “Hence, there is a compelling need to complete all pending actions, such as the ratification of treaties, the amendment of Merchant Shipping Act, review and promulgation of regulations, getting necessary approval of the draft Guidelines and Policies, and due execution of all the agreements,” he stated.
• Obia writes from Lagos.