WHEN A PARTY WILL BE LIABLE TO PAY PILOTAGE DUES

NOBLE DRILLING (NIG) LTD v. NPA (2021) LPELR-52535(CA)

JUDGMENT DATE: 8TH JANUARY, 2021

PRACTICE AREA: MARITIME LAW

LEAD JUDGMENT: OBANDE FESTUS OGBUINYA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Maritime Law.

FACTS

This is an appeal against the decision of the Federal High Court of Nigeria, Lagos Division, coram judice; O. E Abang, J., in Suit No. FHC/L/CS/451/20123, delivered on 11th December, 2015.

The appellant, an offshore drilling company, in May and November, 2011 obtained Temporary Import Permits (TIP) from Nigerian Customs Service (NCS) for the importation of their two rigs, “Noble Lloyd Noble” and “Noble Tommy Craighead” from Cameroun. The two rigs were brought into Calabar Port, Nigeria as Cargos, via different vessels, and were cleared for operations by NCS. The appellant claimed that since they were brought in as cargos they were not subject to pilotage or ship dues which were the responsibility of the owners/or masters of the carrying vessels. Again, it asserted that it did not use or request for the services of the Vista Maritime Company Limited to incur stevedoring charges for the rigs. It further claimed that the carrying vessels did not pass through any Nigeria compulsory pilotage district nor did it utilise the services of any pilots in the carriage of the rigs. Despite these, the respondent imposed compulsory pilotage dues totaling $782,943.07. The appellant protested against the charges. When the appellant did not pay, the respondent instructed its managers and agents to stop port services to the appellant which subjected it to severe difficulties, almost to a total shut down of its offshore drilling operations. The appellant was forced to pay the charges on 29th February, 2020. As a result, the appellant served the respondent a notice of intention to commence action against it on the constitutionality of the pilotage and stevedoring charges. Inspite of the notice, the respondent commenced another round of stoppage of port services to the appellant.

Sequel to these, the appellant beseeched the High Court, via a writ of summons, filed on 2nd May, 2012, and tabled against the respondent the following reliefs amongst others:

a. A DECLARATION that the imposition of compulsory pilotage dues on the Plaintiff by the Defendant with respect to the two rigs “Noble Lloyd Noble” and “Noble Tommy Craighead” which were brought into Nigeria as cargo in 2011 is unwarranted, unjustifiable, unlawful and unconstitutional.

b. A DECLARATION that the Plaintiff is not liable to pay the Defendant, its agents, servant, privies or any other person whatsoever the sum of US$264,314.22 (two hundred and sixty-four thousand, three hundred and fourteen US Dollars, twenty-two Cents) or any other sum whatsoever as compulsory pilotage dues.

c. A DECLARATION that the payments made by the Plaintiff under duress to the Defendant and its agents as purported pilotage dues for the two rigs “Noble Lloyd Noble and the “Noble Tommy Craighead” are wrongful and ought not to have been made.

d. AN ORDER directing the Defendant to refund the sum of US$264,314.22 (two hundred and sixty-four thousand, three hundred and fourteen US Dollars, twenty-two Cents) paid to it by the Plaintiff under duress as compulsory pilotage dues.

e. A DECLARATON that the imposition of purported stevedoring charges on the Plaintiff by the Defendant for payment to companies with which the Plaintiff has no contracts whatsoever and for unsolicited and unutilized services is unlawful and unconstitutional.

In reaction, the respondent joined issue with the appellant and denied liability by filing a statement of defence.

In a considered judgment, delivered on 11th December, 2015, the lower Court dismissed the action.

The appellant was dissatisfied with the decision hence this appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

i. Whether the learned trial judge rightly applied the provisions of Sections 63(2) (a) and (b) and 127 of the Nigerian Ports Authority (NPA) Act in holding the Appellant’s rigs which were towed by vessels chartered by the Appellant are liable to pay the pilotage dues.

ii. Whether having regard to the totality of the evidence led at trial, the judgment of the lower Court is sustainable.

iii. As between the Appellant and the Respondent, who has the evidential burden of proving that the vessels that carried the Appellant’s rigs passed through the compulsory pilotage districts and whether the Respondent placed sufficient evidence to warrant the Court to enter judgment in its favour?

iv. Whether the learned trial judge properly considered and pronounced on all the issues raised by the suit?

DECISION/HELD

On the whole, the Court of Appeal held that the appeal lacked merit and it was accordingly dismissed.

RATIOS:

• MARITIME LAW- MARITIME CLAIM: Instance where a party will be liable to pay pilotage dues
• MARITIME LAW- PILOTAGE: Principle of law relating to burden of proof; on whom lies the burden of proving that a vessel passed through the compulsory pilotage district
• EVIDENCE- CROSS-EXAMINATION: Whether evidence elicited through cross-examination is more reliable than that through examination in chief