Understanding Contractual Issues in Africa’s Maritime Industry
Across Africa, the continent is experiencing a steady increase in the cases of coronavirus including African coastal countries These increased cases have resulted in many African countries taking proactive steps to stem the spread of the virus within their territories including instituting lockdowns and closure of ports. These measures are impacting the businesses of maritime companies in those jurisdictions particularly those that have entered into some form of charter party arrangement or the other. This in turn will result in many maritime services companies making certain important considerations such as: the effect of COVID-19 on obligations under the contracts; whether force majeure can be relied on as a protection or a defence to the non-performance of the contract terms; and what factors are necessary to make a successful force majeure claim. This commentary attempts to answer these questions and highlight the importance in understanding contractual issues in Africa’s maritime industry during COVID-19 pandemic
Some African countries and their responses to maritime activities during COVID-19
Considering the contractual issues for maritime companies that arise due to COVID-19 in Africa requires a brief explanation of the approach of African governments to maritime and port related matters across the continent. In Nigeria, the president on 29 March, 2020 declared a lockdown and banned movement of people and goods in some states of the Federation (Lagos, Abuja and Ogun States) excepting some category of persons and goods such as those engaged in the provision of essential services and those in the maritime sector. The exceptions covered certain seaports as well, providing for all seaports in Lagos to remain operational including a further mandate that all vehicles and drivers transporting essential services from these ports to other parts of the country be screened thoroughly by the Ports Health Authority.
The Nigerian Maritime Administration and Safety Agency (NIMASA) released a communique that only international marine vessels which had planned and informed the agency of their call into a Nigerian Port not later than 1st February 2020 may be allowed to call on such port. No international marine vessel or any member of its crew or passenger therein having a travel history of visiting any of the COVID-19 affected countries since 1st Feb, 2020 shall be permitted to enter any Nigerian port from 30th March, 2020 till 12th of April, 2020. In addition, only international marine vessels having thermal screening facilities for passenger and crew may be allowed in the ports and shipping agent/master of vessels must submit all documents related to crew and passengers regarding their travel to or from the COVID-19 affected countries.
NIMASA also directed all passengers and crew members to fill the Self Reporting Form as prescribed by Nigerian Port Health Authorities, adding that Port Health officers shall carry out thermal screening of all the passengers and crew members on board ships, and none would be allowed ashore until clearance is given. The NIMASA press update can be found here.
In Cameroon, the government closed all borders to all passengers from 18 March 2020 and ordered that vessels from “countries at risk” must wait at buoy for a minimum of 14 days before being allowed to proceed into the channel. The country also put in place other measures including that after 14 days, port health service will board vessel as base buoy to consider clearance. Upon berthing, the port health service will be the first to board while other services will wait for the clearance before boarding. Delivery to the vessel at base buoy is prohibited while crew changes must be carried out under the full supervision of port health service. Only ships carrying consumer daily goods as well as essential goods and materials will be allowed in the ports with limited and supervised stop-over times.
South Africa, as at the date of this commentary has closed two of its eight seaports. It has also insisted that the two ports will only be closed to passengers. Passengers from ships that dock at Saldanha and Mossel Bay will not be allowed to disembark, and crew changes will be disallowed. However, the country will continue to allow the export and import of goods as it recognizes the importance of export to its economy and the need to keep up with imports of essential goods.
Although international flights have been banned in Kenya, the country is yet to declare a lockdown. However, its seaports are functioning at much reduced levels. The situation in Algeria is similar, where all air and sea links to Europe have been closed. The Port Management Association of West and Central Africa, a sub-regional intergovernmental organization, has stated that port platforms cannot shut down in the wake of the coronavirus crisis because they are critical infrastructures and necessary for the survival of nations and vital to the population and the economy. This however is subject to the decision of the government in an African country.
Across the African continent, there has been a significant reduction in the operations of some seaports. This reduction will invariably impact on the operations and contracts of maritime service companies. Considering the responses of African governments to maritime activities at this time, this commentary will in subsequent paragraphs, examine the commonly asked questions that stakeholders have concerning understanding contractual issues affected by COVID-19 in the maritime industry, with a view to proffering solutions.