The appellant is the owner of the MT African Hyacinth. On 11 April 1997 whilst navigating in Warri Port and proceeding to the loading terminal the vessel collided with the MV Fortunato which was at anchor. There was extensive damage to the MV Fortunato. The collision occurred in a Pilotage District and by the provisions of ss 23(1) and 23(3) of the Ports Decree 1993 the appellant's ship must be under the pilotage of a Nigeria Ports Authority pilot or a licensed pilot of the District. Both Courts below found that the appellant's ship was not manned by a competent pilot. By summons for decree of limitation brought under s 363 of the Merchant Shipping Act 1990 and s 9 of the Admiralty Jurisdiction Act 1991 the appellant admitted liability for the damage arising out of the collision with the MV Fortunato but sought a decree limiting its liability. The trial Judge concluded that it was not a proper case in which to grant the appellant leave to limit its liability in terms of its claim. The appellant appealed. The respondents cross-appealed. The Court of Appeal dismissed the appeal, but allowed the cross-appeal. This appeal is against that judgment.

Held: Appeal dismissed.

Limitation of liability and the right to limit liability is provided for in s 363(i)(d)(ii) of the Merchant Shipping Act, Cap 224 Laws of the Federation of Nigeria, 1990, Vol 9. Before s 363 can apply the following conditions must be satisfied: (1) The ship that seeks to limit its liability must be a Commonwealth ship or a foreign ship; (2) The loss or damage has been caused to the property of a third party; and (3) The loss or damage must have occurred without the actual fault or privity of the ship seeking limit its liability. Where the above applies to a shipowner it is perfectly within its rights to invoke s 9 of the Admiralty Jurisdiction Act, Laws of the Federation of Nigeria Vol1: 'A person who apprehends that a claim for compensation under any law, including the Merchant Shipping Act, that gives effect to a liability Convention may be made against him by some other person, may apply to the court to determine the question whether the liability of the first mentioned person in respect of the claim may be limited under this law'.

After examining depositions in the affidavits the Court of Appeal observed that the issue was whether Newton Funfade, found on board the African Hyacinth at the time, was competent and qualified to be the captain of the ship. The Court concluded that there was no iota of evidence that there was a competent and qualified captain manning the vessel at the time of the collision. The onus is on the appellant to establish that its captain and crew are competent to man a ship. The two affidavits filed by the appellant did not have any depositions or annexures authenticating the qualifications of Newton Funfade. In the absence of all of the above the Court of Appeal was perfectly right to conclude that on the evidence at the time of the collision the MT African Hyacinth was manned by incompetent and unqualified crew.

The owners of a ship ought to employ qualified and competent masters and crew to man their ship and where there is a collision with another ship the onus is on them to prove that their crew are qualified and competent. Surely the owners of a ship cannot say they are not at fault if their ship is under the control of unqualified, incompetent crew. Navigating the MT Africa Hyacinth in a Compulsory Pilotage District without a company pilot or a licensed pilot is contrary to ss 23(1) and 23(3) of the Ports Decree 1993. The incompetent crews in control of the appellant's ship were appointed by the owners and so there is actual fault and privity on their part.