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An Overview Of BIMCO Electronic Signature Clause 2021 And The Nigerian Law – Contracts and Commercial Law



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BACKGROUND

Owing to the emerging digitalization of the shipping trade
especially given the challenges and accompanying innovations
arising from Covid-19 lockdown and restrictions, BIMCO has
introduced Standard Clause 20211 (BIMCO Clause) to
facilitate electronic signature of shipping commercial contracts by
parties to a contract without the necessity of meeting physically.
The contracts envisaged are most likely to be charter-parties and
other related shipping documents such as Bills of Lading, Letters
of Indemnity and the BIMCO Clause could as well be incorporated in
other commercial contracts with such modifications as may be
necessary.

This article seeks to highlight the BIMCO Clause and appraise
its provisions with the Nigerian Law (so as to serve) as a guide to
ship owners, charterers, ship brokers, P & I Clubs and other
business stakeholders that intend to do shipping business and other
commercial transactions in Nigeria.

Meaning of Electronic Signature

The term Electronic Signature is not defined by any domestic law
in Nigeria but by subclause (a) of the BIMCO Clause, the term
means:

“data in electronic form which is attached to or
logically associated with other data in electronic form and which
is used by a signatory to sign and includes, without limitation,
typing a name into a contract, inserting a signature (in the form
of an image) into a contract or using a web-based electronic
signature platform to generate an electronic representation of a
handwritten signature or a digital signature using public key
encryption technology.”

The above definition is flexible and wide enough to cover any
form of electronic signature that may be resorted to by the
Parties.

Operative Provisions of the BIMCO Electronic Signature Clause
2021

Sub-clause (b) of the BIMCO Clause provides as follows:

“The Parties agree that this Contract, and any
documents to be signed in connection herewith, may be
electronically signed and the use by a Party of an Electronic
Signature shall, for the purposes of validity, enforceability and
admissibility, be conclusive evidence of that Party’s
intention to be legally bound as if such signature had been written
by hand”

The said Sub-clause, in a nutshell, empowers parties to a
shipping Contract to electronically execute such documents and
other connected documents with the intention that the parties shall
be bound by the Contract as if written by hand and same shall be
valid, admissible and enforceable against the parties.

Sub-clause (c) on its part provides that:

“In the event that an Electronic Signature is, for any
reason whatsoever, not recognized by any relevant person, entity or
authority in any applicable jurisdiction, each Party undertakes,
upon request, to promptly provide a handwritten signature on any
relevant document.”

Thus, where Electronic Signature is not recognized in any
jurisdiction, the parties to a shipping contract shall arrange for
a handwritten signature. This entails that both the law governing
the Contract and the law of the Jurisdiction of the Parties need to
recognize the validity of electronic signature to a Contract for
such Contract to be binding and enforceable otherwise parties would
resort to a handwritten signature.

On the other hand, sub-clause (d) empowers Parties to a contract
to execute same in counterparts and each of the counterparts shall
be regarded as an original of the Contract and if any of the
Counterparts is executed using electronic signature, it shall
satisfy the requirements of the BIMCO Clause.2

The Nigerian Law Position on Electronic Signature

The Nigerian Evidence Act, 20113
(the Evidence Act), the Cybercrimes (Prohibition,
Prevention, etc) Act, 2015
4 (the Cybercrimes
Act) and the Companies and Allied Matters Act,
2020
5 (CAMA) recognise as valid and binding,
the use of electronic signature in commercial contracts and
transactions. The Evidence Act provides that:

“where a rule of evidence requires a signature, or
provides for certain consequences if a document is not signed, an
electronic signature satisfies that rule of law or avoids those
consequences.”

n the same vein, the Cybercrimes Act provides that
electronic signature in respect of purchases of goods,
and any other transactions shall be binding
.”

While CAMA on its part provides that “a document or
proceeding requiring authentication by a company may be signed by a
director, secretary, or other authorised officer of the company,
and need not be signed as a deed unless otherwise so required in
this Part and that an electronic signature is deemed to satisfy the
requirement for signing under this section.” This provision
is further complemented by other Sections of CAMA6 to
the effect that a document is validly executed by a Company as a
deed if it is duly executed by the company and delivered as a deed
without affixing a common seal on the document provided the
document is executed by a director and the secretary of the
company; at least by two directors of the company or a director in
the presence of at least one witness who shall attest the signature
and any such document executed in this manner shall satisfy the
requirement of any law requiring affixing of a common seal to
a document for purposes of authentication.

On proof of Electronic Signature, the Evidence Act7
provides that “an electronic signature may be proved in any
manner including by showing that a procedure existed by which it is
necessary for a person, in order to proceed further with a
transaction, to have executed a symbol or security procedure for
the purpose of verifying that an electronic record is that of the
person” while the Cybercrimes
Act
8 on its part provides that “whenever
the genuineness or otherwise of such signatures is in question, the
burden of proof, that the signature does not belong to the
purported originator of such electronic signatures shall be on the
contender.”

Exceptions to the use of Electronic Signature in Nigeria

Under the Cybercrimes Act9 , electronic signature is excluded
from certain contractual transactions and declarations such as
creation and execution of wills, codicils and or other testamentary
documents; death certificate; birth certificate; matters of family
law such as marriage, divorce, adoption and other related issues;
issuance of Court Orders, notices, official court documents such as
affidavit, pleadings, motions and other related judicial documents
and instruments; cancellation or termination of utility services;
any instrument required to accompany any transportation or
handling of dangerous materials
either solid or liquid in
nature and any document ordering withdrawal of drugs, chemicals and
any other material either on the ground that such items are fake,
dangerous to the people or the environment or expired by any
authority empowered to issue orders for withdrawal of such
items.

In a nutshell, Charter-parties and other carriage documents such
as Bills of Lading in relation to and/or involving the carriage of
‘dangerous materials’ are excluded from being executed
pursuant to any electronic signatures. It is necessary to note that
the term ‘dangerous materials’ is not defined in the
Cybercrimes Act thereby making it difficult for Parties to a
shipping contract to ascertain the goods that may be affected by
the exception. This is further compounded by the fact that what
amounts to dangerous goods may vary from one jurisdiction to
another. For proper guidance therefore, Parties to a shipping
contract may have recourse to International Maritime Dangerous
Goods (IMDG) Code which contains list of dangerous goods for
guidance as to when electronic signature in Contract for carriage
of certain goods is not required where a Nigerian Party is
involved.

Effect of Unauthorized use of Electronic Signature

By virtue of the Act10 it is a criminal offence for
any person with the intent to defraud and or misrepresent, forges
through electronic devices another person’s signature or
company mandate and the person shall be liable on conviction to
imprisonment for a term of not more than 7 years or a fine of not
more than =N=10,000,000.00 or to both fine and imprisonment.

Comment

The BIMCO Clause is a step in the right direction which is aimed
at maintaining business exigency in shipping trade in line with the
current technological advancement in business facilitation.
Nigerian Law on the other hand has not only adequately provided for
the use of electronic signature as a valid and binding way of
business transaction and document authentication, but has also
placed the burden of proof of establishing that an electronic
signature is not that of the maker, on the contender.

Nigerian law, in recognition of the cyber security threats and
possible compromise of the integrity of electronic documents, has
also gone ahead to criminalise illegal and unauthorised
interception, forgery and use of someone’s electronic
signature with the intent to defraud and misrepresent the
person.

It is also expedient for Ship Owners/Carriers and Charterers, as
the case may be, to ascertain the nature of the goods for Nigeria
destination and confirm whether they fall under the category of
dangerous materials prior to affixing their electronic signature in
any Charter-parties or other shipping documents such as Bills of
Lading. It would also be prudent for the Ship Owner/Carrier to
ensure the inclusion of the usual “dangerous goods”
clause contained in Bills of Lading.

Whilst contending that the BIMCO Clause is a necessary tool in
this global digital economy, there is the need for Parties
resorting to electronic means of transaction to have a watertight
end-to-end cyber security process to ensure authenticity of
documents executed and exchanged through electronic means.

Footnotes

1. Available on
Electronic Signature Clause 2021 (bimco.org)
and accessed on
September 15, 2021.

2. BIMCO Electronic Signature Clause 2021 sub-clause (d)
This Contract may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same agreement.
A counterpart bearing an Electronic Signature shall satisfy the
requirements of this Clause
.”

3. Section 93(2) of Evidence Act, 2011

4. Section 17(1a) Cybercrimes Act, 2015

5. Section 101 of CAMA, 2020

6. Sections 102 & 103 of CAMA, 2020

7. Section 93(3) of the Evidence Act, 2011.

8. Section 17(1b) of the Cybercrimes Act,
2015.

9. Section 17(2) of the Cybercrimes Act,
2015.

10. Section 17 (1c) of the Cybercrimes Act,
2015.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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