The Malta Maritime Law Association, Malta Maritime Forum, The Yachting Trade Section within the Malta Chamber of Commerce and Super Yacht Industry Network Malta have issued a communiqué in reaction to the articles reported in the press on a communication sent by the French Commissioner Pierre Mascovici to Minister Scicluna regarding the application of rules on VAT relative to yachts.
Ann Fenech, who has for the last two years served as a member of the CMI Executive Council, was unanimously re-elected to a second term on the said Council. Ann Fenech’s reappointment took place during the CMI General Assembly held in Genoa at the beginning of September, which entrusted her to serve for another two year term as one of the 13 members of the CMI’s Executive Council.
Ann Fenech is the President of the Malta Maritime Law Association and the first Maltese person who has ever been elected to the CMI Executive Council.
The Comité Maritime International is the oldest organization in the world that is exclusively concerned with the unification of maritime law and related commercial practices. Founded in 1897, CMI has been responsible for the developing and drafting of most international maritime law instruments over the last century. To this effect, CMI also enjoys observer status at the International Maritime Organization (IMO).
Since her appointment two years ago, Ann Fenech has also been appointed as chair of the CMI International Working Group (IWG) on Ship Financing Security Practices. She delivered a presentation at the CMI/AIDIM Seminar, wherein she gave a detailed overview of the work carried out by the said IWG over the last year.
The Conference was very well attended with more than 200 maritime lawyers from all over the globe.
At the start of 2017 Transport Malta, the authority responsible for the administration of the Malta flag, introduced new guidelines that allow more than 12 persons on board privately registered yachts.
Since their launch, these guidelines have been welcomed by the industry, not least since they represent the consolidation of a flexible approach towards authorisation for the carriage of additional guests on board and a departure from the previously strict requirement for yachts to be built in accordance with the International Convention for the Safety of Life at Sea or the Passenger Yacht Code and registered with a red ensign flag.
These guidelines apply to yachts both above and below 500 gross tonnes and will be applied on a case-by-case basis at the discretion of the authority. Further, pleasure yachts falling within the ambit of the guidelines will be prohibited from navigating more than 150 miles from a safe haven while carrying more than 12 persons.
Yachts falling under the guidelines must:
- hold a valid class certificate (a requirement applicable for yachts over 500 gross tonnes);
- comply with the requirements of the Commercial Yacht Code;
- possess an approved stability booklet, which covers the loading conditions relative to the total number of persons being requested on board;
- install and carry the appropriate safety equipment, depending on the expected number of persons on board;
- have a 100% life raft capacity;
- carry a compliment crew in line with the Commercial Yacht Code;
- have been issued a safety radio statement of compliance (applicable to yachts over 300 gross tonnes) or a safety radio certificate (for yachts over 500 gross tonnes); and
- comply with the International Convention for the Prevention of Pollution from Ships requirements, as detailed in the Commercial Yacht Code.
The guidelines also require an intermediate survey to be effected every two-and-a-half-years, starting from the date on which the vessel is allowed to carry more than 12 persons. The aim of this survey is to verify the continued compliance with the minimum requirements.
The Malta flag has increasingly garnered a solid reputation as being one of the leading European flags and is favoured by owners, financiers and operators of private and commercial yachts. Speaking at the Fifth Opportunities in Superyachts Conference organised in Malta on the February 23 2017, Minister for Transport and Infrastructure Joe Mizzi noted a record increase of over 14% in the registration of superyachts over 24 metres under the Malta flag over the past year. He attributed this success to the high level of service offered by both the public and private sectors and the “various initiatives and strategies in favour of the industry offering a holistic package”.
The new guidelines stem both from a recognition by the Maltese administration that there is a gap in the superyacht market and the administration’s continued effort to remain at the forefront as a leading yachting flag, which is conscious of the need to meet the industry’s frequently changing requirements while maintaining the highest possible technical standards.
Contributed by Alison Vassallo, Fenech & Fenech Advocates
Source: ILO 12 April 2017
EU Regulation 2015/757 on the Monitoring, Reporting and Verification of Carbon Dioxide Emission from Maritime Transport (the “Regulation”) has entered into force on 1st July 2015. The Authority for Transport in Malta (“Transport Malta”) has recently issued Notice 133 concerning such regulation. In brief The Regulation requires ship-owners and operators of 5000+ GT vessels to monitor, report, and verify CO2 emissions of such ships calling at any European port. What are ship-owners and operators required to do? Ship-owners and operators of 5000+ GT vessels flying the Maltese Flag are required to set up all those procedures required to implement the Regulation as soon as possible by developing Monitoring Plans and procedures for the collection and reporting of data concerning fuel consumption and transport work. Any Deadline? Companies are requested to submit to an Accredited Verifier Ship-Specific Monitoring Plans for fuel consumption showing the method adopted for monitoring and reporting measures together with any other information for each of their vessel. Ships falling under the application of the Regulation after 31st August, 2017 would have to abide by such provisions not later than two months after the ship’s first call in a European port. As from the 1st January, 2018 Per-Voyage and Annual Monitoring procedures shall be in place. These should be prepared in accordance with the monitoring plan as approved by the accredited verifier for each ship arriving (or departing from) a European port and for each voyage. As from 2019, ship-owners and operators of 5000+ GT vessels will be obliged to submit to Transport Malta and the European Commission every year by the 30th April, Verified Annual Emissions Reports concerning CO2 emissions. What does the Monitoring Plan consist of? The monitoring plan shall tackle all the elements required by the Regulation including a reference to all those documents proving the monitoring methods adopted for the specific ship. This should be based on the template model accessible under Annex I of the Implementing Regulations 2017/1927. Conformity of the Monitoring plan shall be assessed by the accredited verifier prior to the beginning of the reporting period.
Contributed by Dingli & Dingli Lawfirm
Source: Shipping Law News 12 April 2017
Following the issuance of a provisional arrest warrant for a yacht at the request of a physical bunker supplier, the Maltese court determined that it was not vested with jurisdiction in rem and accordingly lifted the arrest.
The motor yacht Vicky was arrested in Malta on January 4 2017 by Thevenin & Ducrot for a claim relating to unpaid bunkers supplied to the yacht. The owners of the yacht subsequently filed an application before the Maltese courts challenging the arrest and arguing, among other things, that the Maltese courts lacked jurisdiction in rem.
The court had to examine whether the requirements set out under Articles 742B and 742D of the Code of Organisation and Civil Procedure and Article 50 of the Merchant Shipping Act were satisfied when the arrest warrant was issued.
Maltese law and jurisprudence dictate that three essential requirements must be satisfied in order for an arrest in rem to be validly issued:
- The vessel must be physically situated within Maltese territorial waters.
- The claim must fall under Articles 742B of the Code of Organisation and Civil Procedure, which lists all maritime-related claims for which a claim in rem may be brought and includes dues “in respect of goods, materials, provisions, bunkers, supplies and necessaries supplied or services rendered to a ship for her operation, management, preservation or maintenance”.
- The requirements set out under Article 742D of the Code of Organisation and Civil Procedure must be satisfied.
Article 742D provides that unless the claim is privileged in accordance with Article 50 of the Merchant Shipping Act, an arrest in rem may be brought against a ship only when the person liable for the claim:
- was the owner or charterer, or in possession or in control, of the ship or vessel when the cause of action arose; and
- is the owner, beneficial owner or the bareboat charterer of the ship when the action is brought.
The yacht owners argued that this requirement had not been satisfied.
The owners alleged that they were not liable for Thevenin & Ducrot’s outstanding dues. They further maintained that they had no juridical or legal relationship with the physical supplier that arrested the yacht. It transpired that the owners had not directly ordered the bunker supply in question. Instead, they had ordered bunkers from an intermediary fuel trader, Mastco Group AG. The latter entity subsequently used a third-party broker to purchase the fuel product from the physical supplier. However, when the bunkers were furnished to the Vicky, Mastco Group failed to pay the physical supplier. That said, the yacht owners had paid Mastco Group AG for the bunkers.
The physical supplier defended the arrest by arguing that although its invoices were issued to Mastco Group, the owners were aware of the order and accepted the fuel product. To this effect, the arresting party presented its bunker delivery note and argued that since this document bore the vessel’s stamp and was signed by the chief engineer, the owners were also liable for payment of the fuel product.
The court disagreed with the supplier’s argument, holding that the bunker delivery note was nothing more that proof of receipt of the fuel consignment. Moreover, the fact that it was signed by a representative of the vessel in no way meant that the vessel or the owners had participated in the contract of sale or were party to the agreement.
The supplier also alleged that its claim was in fact a privileged one in terms of Article 50(m) of the Merchant Shipping Act and that in any event, Article 742D of the Code of Organisation and Civil Procedure should not apply. However, in order for a claim to be deemed privileged, the debt in question must have been contracted directly by the owner of the ship, the master or an authorised agent of the owner. To this effect, the supplier argued that when Mastco Group AG ordered the bunkers it did so as an authorised agent for and on the behalf of the vessel. The court disagreed with this contestation as no substantial evidence was produced to prove, even on a prima facie basis, that Mastco Group AG had acted as the agent of the owners or vessel when purchasing the fuel product.
The court thus concluded that the Maltese courts were not vested with jurisdiction in rem and ordered that the arrest warrant be lifted.
In light of the growing spate of claims brought by physical suppliers against shipowners, this judgment sheds important light on the onus of proof with which an arresting creditor is burdened. The court held that it was insufficient merely to procure evidence of knowledge of the supply or proof of acceptance of the product from the supplier; there must be a more genuine juridical link between the physical supplier and the owner of the vessel. In this regard, the court may have reached a different conclusion had the bunker delivery note included a statement or declaration incorporating the physical supplier’s terms and conditions (which, in turn, may hold a shipowner jointly and severally liable for the payment). In this scenario, there are arguments both in support and against any arrest in rem made on this basis. That said, this remains a moot point, as it is still untested by the Maltese courts. Further, it would appear that a claim for unpaid fuel product ordered by a third party may in certain circumstances be considered privileged, provided that there is unequivocal evidence that the third party made the order in its capacity as an authorised agent of the owners.
Contributed by Dr Adrian Attard, Fenech & Fenech Advocates
Source: ILO, 22 March 2017