In May of this year I wrote about the case of the MV Dadayli (February 12, 2015 per Madam Justice Jaqueline Padovani), where the court upheld the application of the vessel Dadayli which claimed that the arrest of the vessel was illegal given that the conditions stipulated in section 742 (b) of our Code of Organisation and Civil Procedure were not satisfied. (See: Wrongful Arrest of Ships (1))
As I stated then, the effects which an arrest of a vessel have on the owners or charterers can be disastrous. This makes arrest an exceptionally effective and powerful tool which a genuine creditor has every right to use provided the law is observed. It is equally important that the procedure is not abused and not used for the purposes of putting illegitimate and illegal pressure on owners. As a result it is in the interest of the rule of law and of ensuring the maintaining of high standards that the parameters established by the law are observed.
Otherwise it could easily lead to a ‘free for all’. This ‘free for all mentality’ is however raising its ugly head in Malta and overseas to the extent that the Comité Maritime International (CMI) has deemed it necessary to form an International Working Group to study the frequency of illegal arrests and how various jurisdictions, members of the CMI, deal with them. It is significant that the CMI, the international body which drafts the majority of international maritime conventions prior to their approval by the IMO or the UN, has put this item on its agenda.
The judgement in the case related to the MV Dadyli was not the only time this year that the court in Malta pronounced itself on the failure of arresting parties to follow the law which is there to safeguard against abuse.
On May 20, in another case the court agreed to the issuing of a warrant of arrest against the MV Blue Rose. The arresting party filed a sworn application stating that the vessel was in Maltese territorial waters outside harbour and that the claim could be prejudiced with the departure of the vessel. It is important to underline the fact that the jurisdiction of our courts extends over Malta’s 12 mile territorial sea.
Maltese courts do not have jurisdiction and therefore cannot grant warrants of arrest of vessels outside its territorial sea which is why the law provides that the applicant must swear a declaration as to the location of the vessel within Maltese territorial waters. Unlike the situation 20 years ago today every person with access to a computer can on a 24/7 basis find out exactly whether or not a vessel has entered Maltese territorial waters.
It is important for our judiciary to ensure, as they have already, that the law of the jungle does not become a reality
The warrant was served on Transport Malta which immediately realised that the vessel was not even in Maltese territorial waters. This meant that the warrant of arrest was null thus rendering the arrest of the vessel illegal. Transport Malta immediately filed a note before the court informing the court of this and Mr Justice Joseph Zammit McKeon quite correctly and promptly revoked ‘contrario imperio’ the warrant of arrest which he had granted a few hours earlier .
The case indicates that a system which works perfectly when the law is respected can so easily be abused which can lead to a loss of trust in the system. This would be a great shame. One of the things that makes arrests in Malta most efficient is the fact that an arresting party can obtain an arrest ex parte, meaning that it is not an application which is served on the defendant. If that were the case it would defeat the object of the exercise with the element of surprise being the most important part of the procedure.
However, precisely because a duty judge is obliged to accept the ex parte declarations made by the arresting party he needs to have the comfort of knowing that those declarations are correct and honest. If they are not correct and honest then that puts into jeopardy the entire system which we cannot afford to forfeit. Of course the legislator tried to safeguard against abuse by stating that such declarations by applicants need to be sworn.
Sadly, however, we are seeing an increasing number of what are essentially declarations taken in the most superficial of manners without verification of what they are supposed to be swearing to. Therefore the immediate action taken by the court on this occasion was extremely important sending out the message that misinformation
on a document which must represent the truth indicating that a vessel is in Maltese territorial waters when in fact it is not will not be tolerated.
This was not the first time that a warrant of arrest was issued when the vessel in question was not even in Maltese territorial waters. The exact same thing happened in the case of the Madara. This is the case which is repeatedly cited by the media as the vessel which ‘escaped’ from arrest. In fact the vessel never ‘escaped’ from arrest at all.
Like the case of the Blue Rose the arresting party swore that the vessel was in Maltese territorial waters and obtained the warrant when the vessel in fact was not in Maltese territorial waters at the time and was never served with the warrant.
This meant that the arrest of that vessel was an illegality and the warrant of arrest null and void and would have been revoked had it come before our courts as in the case in the Blue Rose.
The fact that the vessel was not in Maltese territorial waters when the arrest warrant was issued was established by the report published by Brigadier Carmel Vassallo who had been commissioned to conduct an investigation into the ‘escape’ of the vessel. Regrettably the author of the report missed this point completely and focused on who had the responsibility of keeping the vessel from ‘escaping’ when in fact it had not escaped in the first place.
The moral of the story of course is that the parameters and conditions which the law provides must be religiously and meticulously observed otherwise what we will have in reality would be the law of the jungle. Malta has worked exceptionally hard to develop into a maritime nation of repute and we cannot allow a deterioration of standards or the anything goes mentality reflected in the application of the law.
Our legal system not only needs to be serious and solid but needs to be seen as serious and solid. It is therefore even more important for our judiciary to ensure, as they have already, that the law of the jungle does not become a reality and that persons abusing the system are taken to task.
by Dr. Ann Fenech, managing partner at Fenech and Fenech Advocates and President of the MMLA.
Source: Sunday Times of Malta, 25 October 2015