• info@masserafrique.com

Articles

An Argentine ship “ARA Fragata Libertad” detained by the Ghanaian authorities at the behest of NML Capital Limited, a New York based creditor of the Argentine Republic gave prominence to the shortcomings of the African country in the field of Maritime Law an action later described as a defiance by the Argentines.

Ghana had adopted judicial measures through its High Court at the request of the United States of America and the United Kingdom, and exercised port State control as stipulated by Article 218 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS). However, it was argued that the “ARA Fragata Libertad” was a warship which was given immunity under Article 32 of the Convention. Based on these arguments, the Argentine President was of the notion that Ghana had erred by violating its immunity, thus an illegal detention will mean perpetuating a war between both countries.

In a suit raised against Ghana by Argentina at the International Tribunal for the Law of the Sea (ITLOS), the Tribunal held that Ghana was in violation of its international obligations and demanded to release the ship as well as compensate Argentina for any material losses which included the cost of refueling the ship back to its country. This raised a lot of concerns within the maritime industry, a notable concern being that of renowned lecturers of the Regional Maritime University (RMU) who made the allusion that certain key players of the industry should have been contacted for advice and opinions for a better insight instead of relying on that of advocacy groups or opinion leaders.

In light of this, the Ghanaian Chief Justice in the later part of 2013 highlighted the need for the establishment of three special Courts dedicated to adjudicate maritime cases and also disclosed a joint collaboration between the Attorney General’s Department and the Ghana Shippers’ Authority which led to the International Maritime Organization (IMO) granting sponsorship to allow three Ghanaian Judges offer an LLM Maritime Law programme in Malta. A proactive measure which will avert any unnecessary future legal disputes and will also go a long way to improve the country’s’ maritime industry in the long run. However, an envisaged problem with the proposed maritime Courts set up vis a vis the existing Courts is that the hierarchy of the proposed Court needs to be made explicitly clear from the outset because judicial conflicts may arise in certain situations, for example a sale of goods contract dispute, i.e. a commercial dispute, may require an arrest of a sister ship present in Ghanaian waters. In case the commercial Court is at the same hierarchal level as the proposed Court, it should theoretically be no problem to obtain an arrest warrant for the said ship but practically problems will arise when the proposed maritime Courts’ sitting judge may have to be appraised of the background of the commercial case and his views differ from the sitting commercial Court judge. This problem may be complicated further if the commercial case is now in the Ghanaian Supreme Court but the Court may have to go to the proposed maritime Court, which will always be lower in hierarchy than the Supreme Court, for a Mareva Injunction or an arrest warrant for a ship. Such absurd situations can and should be avoided by properly drafting Court procedures, and rules for the proposed Courts which also needs to be placed in the proper judicial hierarchy giving it adequate ‘teeth’ to deal with any maritime dispute which comes into the Ghanaian judicial system. It is also humbly proposed that each Court at district, High Court and Supreme Court level may be granted a ‘maritime division’ at each level so that judicial politics do not interfere with this positive step being taken.

 

Jeffrey Botchway
botchwayjeffrey@gmail.com