1301. Is an action against a ship alone allowed under Admiralty Law?
“By virtue of the provisions of Section 5(2)(3) and (4) of Admiralty Jurisdiction De-
cree, 1991, the respondents could, no doubt, commence an action, as they did, against
the vessel, “Mustafa” alone. The combined effect of Order IV rules 1(2) and 2 of
the Admiralty Jurisdiction, Procedure Rule, 1993, already reproduced above and Sec-
tions 5(2) and Section 2(3) (U) and Section 2(3)(d)(f)(k)(n)(p) and (r) is to make an
action against the ship alone cognisable in law in the circumstances of this instant
case. There is nothing wrong in law and admiralty practice that the ‘res’ (vessel)
could be named as the only defendant as the respondents had done especially when
the respondents have claimed that the appellant was in a breach of an agreement to
take adequate care of the respondents’ cargo while in her custody. See: M.V.S. Araz
v. LPG shipping S.A. (1996) 6 N.W.L.R. (Pt. 457) 720 at 731-732; Marine Cargo
Claims (3rd Ed.) by W. Tetley at page 93.
By paragraph 18 of the amended statement of claim, the claim of the respon-
dents can be said to arise from the act or omission of the owners who falls within the
description in Section 2(3)(d) of the “Admiralty Jurisdiction Decree, 1991, as “Ben-
eficial Owner” or “Demise Chatterer”. In view of this, I would say that all the
claims listed in Section 2(3)(a-u) of the Decree, an action in rem may be brought
against the appellant. The appellant relied on sub-rule 2 of Order IV rule 1 of the
Decree reproduced above, as supporting their contention that the respondents could
not have instituted an action against the ship without naming a relevant person. This
argument does not hold. The rule specifically provides that “the relevant person
may be named by reference. I agree with the learned counsel for the respondents
that the relevant person” does not have to be made a party to the proceedings.” –
Per Galadima, J.C.A. in M.V. Mustafa v. Afro Asian Impex Ltd. Suit No. CA/L/72/
99; (2002) 14 N.W.L.R. (Pt. 787) 395 at 410-411.
1302. Right of shipper of goods to sue.
“The respondent who prepaid for the freight, as shown in the bill of lading, and actu-
ally owned the cargo, which is not challenged, is entitled as a shipper to sue: See
Gardano & Giamperi v. Creek Petroleum (1961) 2 Lloyds’ rep. 259 and Exquisite
Industries Ltd. v. The Owners of M v. Bacoliners (1998) 5 N.W.L.R. (Pt. 549)
335, 342 - 343) Tetley, Marine Cargo Claims 2nd edition at p. 61.” - Per Galadima,
J.C.A. in M. V. “Caroline Maersil” v. Noky Invest Ltd. Suit No. CA/L/316/98;
(2000) 7 N.W.L.R. (Pt. 666) 587 at 603.
Action brought against a ship Paras. 1301,1302
1303. Time an action can be brought against a ship.
“From the above provision it is clear that action can be brought against a ship if at the
time the action is brought the relevant person is either the beneficial owner of the ship
or a chatterer of ship under a charter by demise. See: M.V.S. Araz v. L.P.G. Ship-
ping (1996) 6 N.W.L.R. (Pt. 457) at 732.” - Per Amiru Sanusi, J.C.A. in Braithwaite
v. M.S.A. Line Suit No. CA/L/332/96; (2000) 3 W.R.N. 121 at 128; (2001) 15
N.W.L.R. (Pt. 707) 596 at 606.
1304. Duty of trial Judge in a maritime matter where a plaintiff deposes that
two ships belong to one person for the purpose of ex-parte orders of arrest
to be made.
“The trial Judge was clearly in a grave error to have upon an ex-parte application
issued an order of arrest and detention against the vessel M.V. Roman Glacier which
was not a party in the suit before her. Even if the plaintiff/respondent had deposed in
his affidavit that the vessel M.V. Roman Glacier was a sister ship to the vessel M.V.
Pacific Ice, the trial Judge ought to have directed the plaintiff/respondent to first
bring (sic) in M.V. Roman Glacier as a party in the suit before seeking the ex-parte
order of arrest and detention against it. When therefore the appellants/applicants
applied that the ex-parte order of arrest and detention be discharged, the lower
Court should have granted the prayer.” - Per Oguntade, J.C.A. in Glacier v. Agbo
Suit No. CA/L/370/97; (2000) 7 W.R.N. 134 at 142.
1305. Action in rem and action in personam.
“An action in rem is one in which the subject matter is itself sought to be affected,
and in which the claimant is enabled to arrest the ship or other property, and to have
it detained, until his claim has been adjudicated upon, or until security by bail has been
given for the amount, or for the value of the property proceeded against, where that
is less than the amount of the claim. Whatever the plaintiff’s intention may have been
when the action was commenced, I am in no doubt that it proceeded as one in
personam. No steps to arrest the res were taken, no bail for payment into Court in
lieu thereof was required, and judgment was eventually entered; by consent against
the defendants personally. I would point out that if the proceedings had throughout
been solely in rem, the judgment in accordance with the practice of Courts of Admi-
ralty, would not have, as in this case, condemned the defendants to payment of the
amount awarded and costs, but would have condemned the ship alone.” - Per
Foster-Sutton, Ag. F.C.J. in Anchor Limited v. Owners of Ship Eleni Suit No. FSC
Paras. 1303-1305 Vol.1 : ADMIRALTY 620
25/1956; (1956) 1 N.S.C.C. 16 at 17.
1306. Action in rem in admiralty matters.
“As I have said, from the claims, the subject - matter targeted is the ship. It can
therefore be rightly described as an action in rem because it is one in which the
subject matter is itself sought to be affected and in which the claimant is enabled to
arrest the ships and to have them detained until the entire suit has between adjudi-
cated upon. See: Anchor Ltd. v. The Owners of M. ship Eleni (1956) 1 F.S.C. 14.
And in admiralty matters, an action in rem has been described as a proceeding against
a ship or res by a process of arrest to indirectly compel the appearance of the owner
of the ship thus setting him to answer to the judgment of the Court to the extent of his
interest in the property. See: Registrar, High Court of Lagos State & Anor. v.
Vamos Navigation Ltd. (1976) 1 All N.L.R (Pt. 1) 11 at 20; (1971) 1 S.C 33.” - Per
Aderemi, J.C.A., in Satyan 1 v. I.M.B. Ltd. Suit No. CA/L/95/93; (2002) 5 N.W.L.R.
(Pt. 760) 397 at 414.
1307. Application of actions against ship or other property under Order IV
rule 2 of the Admiralty Jurisdiction Procedure Rules.
“The above rule postulates that a plaintiff has commenced an action in rem against a
sister vessel. It therefore directs that it be specified in the maritime claim the relevant
relationship between the said sister vessel and the ship which was directly concerned
with the injury or damage complained of. Order IV rule 2 therefore only can apply in
a situation where a plaintiff commences a maritime claim in rem against a sister
vessel.” - Per Oguntade, J.C.A. in Glacier v. Agbo Suit No. CA/L/370/97; (2000)
7 W.R.N. 134 at 142.
1308. Merits of action in rem.
“The same author at page 95 of the book discusses the advantages of in rem action
thus: - “In rem is essentially an alternative action and not one which an adjunct to or
springing from a personal action. Why does it enjoy such popularity amongst mari-
time claimants around the world? Because it is of immense convenience and can
bring advantages, which are lacking in action in personam which may well be diffi-
cult if not impossible to institute. Leave of the Court to serve a personal summons
outside the jurisdiction is often difficult to obtain. But to issue a writ in rem and to
wait ‘and (in your own time) to ‘pounce’ on the res when it comes within the issuing
Court’s territorial jurisdiction is an excellent method of getting the owner of the res
within your grasp. It founds jurisdiction and opens the way to obtaining adequate
security in lien and the peace of mind of knowing that if you do eventually obtain a
judgment against the owner of the res you will, within and subject to the terms of
621 Paras. 1305-1308
Actions in rem

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