This appeal is against a judgment of the Federal High Court, Lagos Division, granting the respondent's claim against the appellants for the loss of use and cost of repairs of two vessels damaged by the first appellant vessel on 6 June 2006 when it negligently and recklessly executed a 180 degree turn directly opposite the respondent's jetty and shoreline at an abnormally high speed which resulted in the development of a severe propeller wash and undercurrent. The appellants appealed on, among others, the ground that the trial Judge erred in finding that the conduct of the appellants precluded their right to limit their liability in accordance with s 363 of the Merchant Shopping Act, which is to the same effect as the LLMC 1957.

Counsel for the appellants submitted that, first, for an owner of a ship to have actual fault in an act, the fault or privity must be the fault or privity of somebody who is not merely a servant or agent but somebody for whom the company is liable because his action is the very action of the company itself. Secondly, there is a difference between the principle of negligence in torts and the principle of 'actual fault and privity' in maritime law. Thirdly, the trial Judge wrongly applied s 363 of the Merchant Shipping Act 2004 by interpreting it to be in line with the provisions of s 354 of the Merchant Shipping Act 2007. Section 354 of the 2007 Act completely changed the test for limitation of liability by removing the requirement of actual fault or privity, in contrast with s 363 of the 2004 Act which is the law applicable to the instant case as it was in force when the cause of action arose in 2006. Fourthly, in calculating the sum by which the appellants' liability is to be limited, s 363(2)(6) of the Merchant Shipping Act 2004 stipulates that the limitation figure per tonne is to be set by the Minister and by virtue of Legal Notice No 94 of 1964, the limitation figure has been set at NGN 47.50 per tonne per vessel, which by virtue of the vessel's registered tonnage of 17,959 tones will bring the limitation sum to NGN 853,052.50.

For the respondent, it was submitted that the trial Court was right in the interpretation of s 363 of the Act because there was strong evidence of negligence on the part of the appellants.

Held: Appeal dismissed.

The stance of the trial Judge on the non-applicability of s 363 of the Merchant Shipping Act to the facts of this case is correct. This is so, notwithstanding the English authorities and academic commentary, which are distinguishable from the circumstances of the case given that the third appellant, who is the master of the first appellant (the vessel owned by the second appellant), is not merely an agent but someone for whose conduct the second appellant will be liable because his action is assumed to be the very action of the second appellant itself, being the owner of the first appellant (the MV Courageous Ace). A ship master, as in the case of the third appellant, goes beyond the scope of an officer in a seafaring vessel but is the alter ego of the vessel on a voyage on behalf of the owners. He has the full control of every activity and takes full responsibility of any act or omission thereon on behalf of the owners of the vessel which, in this case, is the second appellant. In this regard the actual fault or privity provision in s 363 of the Merchant Shipping Act 2004 does not and cannot avail the second appellant, more so as the claim against them was jointly and severally and not specifically or solely against the second appellant. The trial Judge rightly evaluated the evidence adduced before the Court and came to the correct conclusion that the appellants were liable for negligence in the manner their vessel was handled that led to damage to the two vessels moored at the respondent's jetty.​