Interpreting the Article 865 Of The Code Of Organisation And Civil Procedure of Malta islands
The following is content from ILO explaining what is the procedure for penalty of a vessel that has received an arrest warrant and later escaped from the territorial waters of Malta.
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In a recent case held at Maltese civil court “Cassar Fuel Limited v MV Madra”, Maltese courts examined the application and interpretation of the article 865 in reference.
Article 865 of the Code of Organisation and Civil Procedure states that when a vessel that is subject to an arrest warrant escapes Maltese waters the owner, bareboat charterer or other person in possession of the ship or vessel at the time of the breach will be jointly liable to pay a €116,470 penalty.
Maltese bunker supplier ( creditor in this case) M/s. Cassar Fuel Limited took legal aid and served arrest warrant papers to Vessel MV Madra due to default in payment while the ship was in the territorial waters of Malta. Following this, the Master of the ship and crew proceeded to switch off the ship’s automatic id system and fled from the Maltese waters. This resulted in Cassar Fuel Ltd. to lose the only security they had toward their claim over the defaulting debtor.
The bunker supplying creditors commenced proceedings in rem against the vessel MV Madra requesting payment of the penalty stipulated in Article 865 of the code.
The proceedings of the case revolved around the key issue in question:
whether an action could be brought against the vessel or can both legal and natural action can be commenced only against the person or persons that removed the vessel from Maltese waters in violation of the court order.
The findings:
A prerequisite for courts to have jurisdiction would be
- the vessel in question must be physically present in Maltese waters
- The exception to the above rule would be if the shipowner has remitted the claim amount in court as an alternative security
- In such a case, the vessel would be free to leave the territorial waters as an alternative security has been provided in lieu of the vessel.
It is logical, to presume that in the case of an escaped vessel, no such deposit would have been made, (as otherwise the vessel would have been released). Therefore, proceedings under Article 865 would be under the presupposition that the vessel is no longer within Maltese waters. This flouts one of the fundamental prerequisites for jurisdiction in rem. Thus, the court concluded that a claim for penalties under Article 865 cannot be commenced against a vessel in rem.
The court concluded that the creditor must commence proceedings in personam against the owner, the bareboat charterer or any other person in possession of the vessel at the time of the alleged breach.
