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1.1 Background to the Study
The Nigerian Maritime Administration and Safety Agency (NIMASA) and National Inland Waterways Authority (NIWA) are regulatory authorities that have a duty to ensure that maritime transport activities are conducted in an economically safe manner, without placing life and health at risk and without compromising the economic impact of the maritime sector to the Nigerian economy and its people. In addition, public regulation of maritime transport has gradually taken on a new dimension. While it is important to avoid accidents on board vessels, as well as groundings and collisions, importance is also attached to ensuring that damage is not caused to the environment, through ship – source pollution, dumping of waste, discharge of oil from cargo or bunker tanks. Although, ships still enjoy freedom of navigation in waters where the regime applies, they do not have any license for instance to pollute.
The functions of the public institutions mentioned above should be the protection of the public interest, while that of the private entities as against public entities involved in some form of regulation such as classification societies should primarily be the protection of the physical values associated with shipping. In practice, however, these two functions tend to overlap. It is advantageous for both the crew and the hull insurer if, for example, fire hazards on board a ship are reduced or eliminated. The dividing line between the public and private functions is also blurred by the classification societies‟ undertaking or performance of activities which really fall within the public institutions‟ responsibility.
First, it must be stated that “Maritime Transport, and the law and policy within which it operates, must be seen as very similar to other international undertakings operating on a transnational scale”.Hence, the shipping industry is controlled by a web of national and international regulations and practices. Overall, these regulations and practices can be classified under two broad headings : (i) regulations related to commercial operations and practices and (ii) regulations related to safety and the environment.
With regard to regulations related to commercial operations and practices, the analysis of the legal framework, which is the subject matter of this research is centered on the provisions of the following legal instruments: The Merchant Shipping Act, The National Shipping Policy
Act, Coastal and Inland Shipping (Cabotage) Act, the Nigeria Maritime Administration and Safety Agency Act, Nigeria Shippers Council Act , Nigeria Ports Authority Act, and the Council for the Regulation of Freight Forwarders Act. These legislations tend to regulate maritime commercial services and operations within the maritime transport sector of the Nigerian economy. The institutions created by these legislations are the primary enforcers of the regulatory provisions of the Acts. The provisions of these legal instruments take into consideration the commitment of Nigeria to conventions which Nigeria is a party such as those of United Nations Conference on Trade and Development (UNCTAD) and World Trade Organization (WTO). With regard to regulations related to safety and environment, the legal framework considered in this research includes: Merchant Shipping (Safe Manning, Hours of work and Watch keeping) Regulations S I, 11 of 2011 and (Training and Certification of Seafarers) Regulations SI, 12 of 2001 which domesticated the STCW Convention in Nigeria under the powers encapsulated in section 408 of the Merchant International Convention for the Safety of Life at Sea (Ratification and Enforcement) Act, 2004. By virtue of the International Convention for the Prevention of Pollution from Ships 1973 and 1978 Protocols (Ratification and Enforcement) Act, 2007, the International Convention for the Prevention of Pollution from Ships 1973 and 1978 - MARPOL 73/78 became domesticated and applicable to Nigeria. The analysis of the legal framework for regulating maritime transportation in Nigeria with respect to regulations related to safety and environment will, therefore, be centered on the following Conventions: International Convention for Safety of Life at Sea (SOLAS), Standards of
Training, Certification and Watch keeping (STCW), Convention for the International
Regulation of Collisions at Sea (COLREG)17 and International Convention for the Prevention of Pollution from Ships73/78 (MARPOL)18.
Maritime Transport law has always been categorized into two areas: Private and public or regulatory. The private aspect of maritime law deals mainly with rights, liability and compensation, which is the liability or private law regime of maritime transport law. The regulatory regime tries to control or regulate how maritime transport is conducted to ensure safety of lives and property and to ensure that maritime transport is done in a safest and clean marine environment. If maritime transportation is not regulated, there will be pollution of the marine environment which in itself will pose a threat to the safety of persons and merchandise.
Regulatory maritime law deals mainly with regulation regarding the training and competence of seafarers and control of ship source pollution to ensure safety of life at sea. SOLAS, STCW, and MARPOL Conventions are, therefore, interconnected and they are three amongst the main IMO conventions. It should be noted that the branch of Maritime Law known as regulatory maritime law which is the subject of this research is a convention based subject and the task of seeing to the formulation, adoption and enforcement of these standards setting conventions and regulations falls on the shoulders of International Maritime Organization (IMO). NIMASA as an institution or agency of the Federal Republic of Nigeria acts or functions as IMO designated Authority in
Nigeria for the regulation and enforcement of IMO domesticated Conventions and Regulations.
IMO audit delegation audits the affairs of the Nigeria Maritime Administration and Safety
Agency (NIMASA). One of the mandates of NIMASA under section 22, Part VI of NIMASA
Act , 2007 is to “ establish the procedure for the implementation of conventions of International Maritime Organization and International Labour Organization and other international conventions to which the Federal Republic of Nigeria is a party on maritime safety and security, maritime labour, commercial shipping and for the implementation of codes, resolutions and circulars arising therefrom” and to “ establish maritime training and safety standards and to control and prevent marine pollution”. The national framework for the regulation of maritime transport depends largely on the international framework. Therefore, knowledge of the international element in maritime transportation of persons and merchandise is, therefore, indispensable.
Maritime transport is inherently international in character and vessels on most voyages must operate under the regulatory requirements of many states. The rules and regulations are
therefore made by the States, with the International Maritime Organization(IMO) providing the platform and the machinery. Without this platform, the international adoption of these regulations would be extremely difficult and perhaps even impossible. IMO is, therefore, a specialized agency of the United Nations. It has a „regulatory function‟ in a well-defined area of activity but its work has significant implications in many areas of interest to the United Nations as a whole. The Organization provides a mechanism through which Governments are enabled to co-ordinate their procedures for the regulation of shipping and related maritime activities.
As stated in the preceding paragraphs, the shipping industry is controlled by a web of national and international regulations and practices; these regulations and practices can be classified, following the approach of Organization for Economic Corporation and Development, under two broad headings:
(i) Regulation related to commercial operations and practices
(ii) Regulations related to the rights and obligations of states and to safety and environmental regulations.
Affected persons and entities who are subject to these regulatory regimes in Nigeria are mostly International Oil Companies and ship owners that own, hire out their vessels. Since regulation in shipping inherently proceeds from the international realm, some of the affected entities may at some point desire a higher/global standard based on certain interest they may possess. Almost all the International Oil Companies operating in Nigeria are Ship-owners that operate globally and are involved in the transportation of oil and oily products and can wield tremendous influence over regulatory regime and institutional framework that govern their maritime transport operations. The same applies to Concessionaires of Port who wield considerable amount of influence over their operations. These accentuate the need for adequate regulatory regime and institutional framework in Nigeria for the regulation of maritime transportation of persons and merchandise.
For instance at about 1:00am on 19th October, 2015, two oil vessels MT Tank and MT Elixir collided along the Bonga Oil Field FPSO, offshore Warri, Delta State, Nigeria where nine Nigeria crew members sank and their bodies have not been found till date. In the accident, one dead body was recovered while the hull of the Small Vessel, MT Tank sank with nine crew members. Through the detailed report of the investigation into the accident has not been made public, marine Accident Investigations have all pointed out to one likely cause which was fatigue.34 . Fatigue is an issue dealt with under the International Convention on Standard of Training, Certification and Watching-Keeping (STCW) 1978 and also under the International Maritime Labour Convention of 2006. The above underscores the need for better regulation through sustainable legal and institutional framework.
1.2 Statement of the Research Problem
(a) With regard to regulations related to commercial maritime operations and services, the laws appear not to be well streamlined, while some laws conflict with each other. Some of the provisions are not up to date, in terms of keeping up with the trends of modern global shipping and maritime transport and are therefore unsustainable especially in terms of protecting Nigeria‟s economic and shipping interest. The laws include: The Merchant Shipping Act, The
National Shipping Policy Act , Coastal and Inland Shipping (Cabotage) Act  Nigeria Shippers Council Act , Nigeria Ports Authority Act. The principal legislation governing regulation of maritime commercial operations and services in Nigeria is the Merchant Shipping Act, 2007. The provisions of the Act are based on the English Merchant Shipping Act of 1855 which has been reviewed in England severally giving rise to English Merchant Shipping Act of 1995. The provision of the Nigeria Merchant Shipping Act 2007 requires review especially in the area of Ship Registry, Ship Registration, ownership of Nigeria Flag Vessel, Security Interest in Vessels registered in Nigeria amongst other critical provisions. The Merchant Shipping Act of Nigeria can no longer meet the demands of contemporary and sustainable shipping and it cannot satisfy the need for a viable Nigeria Flag state registry.
In addition, after the concession of ports in Nigeria in 2006, there is not yet a clear maritime regulatory authority for Nigerian ports not to talk about regulation in this regard. There is no enabling Act for the concession of Nigeria ports.
The Nigeria Cabotage Act created difficulties in its implementation by the inclusion of certain provisions which undermine regulation in this area of the maritime transport sector.
(b) With respect to regulations related to safety and the marine environment, the institutional framework is weak in terms of capacity and competence. The relaxed and discriminate application or enforcement of the laws related to safety and the marine environment has hampered proper regulation in this regard. Also, some institutions regulating maritime transport in Nigeria have overlapping regulatory functions and responsibilities arising from the enabling legislations.
1.3 Aim and Objectives
The aim of this study is to analyze the regulatory maritime law regime in Nigeria and the international seaborne trade for the purpose of addressing the following objectives:
(i) To evaluate the adequacy of Nigerian maritime regulatory law regime with regard to commercial maritime operations.
(ii) To evaluate the adequacy of Nigerian maritime regulatory law regime related to safety and the maritime environment.
(iii) To determine the extent to which the institutional framework or regulatory bodies function with or under Nigerian regulatory law regime.
1.4 Scope and Limitation of the Research
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