Continental Free Trade And Shipping In Nigeria: Ownership Or Flagging?

BILLS OF LADING

The ACfTA creates its own transit document The African Continental Free Area Transit Document which appears to double as a bill of lading and the provisions are set out below.

The African Continental Free Area Transit Document" means a Customs Document for transit declaration approved by the African Union Ministers of Trade and to be utilized within the African Continental Free Trade Area;

Schedule I Notes for the Use of the African Continental Free Trade Area Transit Document

1. The African Continental Free Trade Area Transit Document herein after referred to as “ AfCFTA TD” shall be prepared in the country of commencement where the goods are first declared to be in transit.

2. The AfCFTA TD shall be printed in the Arabic, English, French and Portuguese languages, but completed in the language of the country of commencement. The Customs Authorities of the other countries traversed reserve the right to require their translation into their own language.

3. In order to avoid unnecessary delays which might arise from this requirement, carriers are advised to supply the operator of the means of transport with the requisite translations.

4. The AfCFTA TD remains valid until completion of the transit operation at a customs office of destination, provided that it has been taken under customs control at the customs office of commencement within the time limit given by issuing authorities and meets the following requirements:

   (a)The AfCFTA TD must be typed or multi-graphed or printed legibly; (b) When there is not enough space on the manifest to enter all the goods carried, separate sheets to the same model as the manifest may be attached to the latter but all copies of the manifests must contain the following particulars:

   1. a reference to the sheets; 

   2. the number, type of packages and goods in bulk be enumerated on the separate sheets; and

   3. the total value and total gross weight of the goods appearing on the said sheets.

5. Weights, volume and other measurements shall be expressed in units of the metric system and values in the currency of the country of commencement, or in the currency determined by the African Union Ministers of Trade.

6. No erasures or over-writing shall be allowed on the AfCFTA TD. Any correction shall be made by deleting the incorrect particulars and adding, if necessary, the required particulars.

7. Any correction, addition or other amendment shall be acknowledged by the person making it and countersigned by the Customs Authorities.

8. When the AfCFTA TD covers coupled means of transport, or several containers, the contents of each means of transport shall be indicated separately on the manifest. This information shall be preceded by the registration of identification number of the means of transport or container.

9. If there is more than one customs office of destination, the entries concerning the goods taken under customs control at, or intended for, each office shall be clearly separated from each other on the manifest.

The issue of the AfCFTA Transit Document raises several questions. Is it just a transit document or will any liability accrue based on the fact that it enumerates cargo on the face of the document similar to a bill of lading? In terms of carriage regimes will it be governed by the international carriage conventions or strictly subject to the dispute resolution mechanisms within the AfCFTA? Noteworthy is that no mention is made of limitation of liability within the transit documents. Where do standard forms stand in the face of this new innovation and as between the Parties can vessels that issue standard form bills of lading still ply the African Transit route if a compulsory requirement for carriage is the AfCFTA Transit Document? Will both documents operate simultaneously with one operating as a title document/receipt while the other operates as a mere passage licence?   All these are matters that will need to be unraveled and judicially tested upon the coming into existence of the Agreement in our Climes.   

Conclusion

In looking at the AfCFTA several issues have been brought to the fore. With respect to Shipping it is submitted that a closer look needs to be taken at the essence of the agreement. At the heart of the AfCFTA is gleaned a medium aimed at bolstering economic, industrial and regional value chain development. Are the relevant drivers required to actualize the ethos of the agreement present? In the   alternative what can be done to build capacity to achieve the aim? Good legislation is a key part of economic advancement but to have a positive outcome legislation must work hand in hand with other indispensable components of the Shipping value chain. If Africa intends to establish a continental market for goods through intra Africa trade it must   strategically build capacity in respect of vessel ownership. It must invest in ship building and increase its maritime asset base to enable it have a market share in the global fleet. To emerge as a viable trade hub there must be a decisive shift away from mere flagging of foreign operators to a deliberate investment in vessel ownership by African entities. Only then will African economies be positioned to play a key role in creating, utilizing and investing the revenue that comes from carriage of goods by sea in Intra africa trade.

The Grey Matter Concept is an initiative of the law firm, Banwo & Ighodalo

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