Times of Malta, 7 September, 2014. By Ann Fennech

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Our firm was instructed to give advice to the owners of the Atlantik following the departure of the Atlantik from Malta and after the owners of the Atlantik found out that the vessel had caused quite a stir in Malta due to the news that on April 30, it had ‘escaped’ from Malta.

On June 5, 2014, a letter was sent to the Commissioner of Police copying Brigadier (Rtd) Vassallo, who had already been appointed to conduct the enquiry explaining that as the Atlantik was traversing the Mediterranean from West to East, it planned to pick up bunkers off Malta and had scheduled a stop around April 30.

En route, the master of the vessel with a complement of Ukranian seafarers received news of the escalating dangerous situation developing between Ukraine and Russia and the crew urgently demanded to be repatriated to see to their families. The bunkering off Malta was therefore called off and the Atlantik proceeded directly to the Black Sea.

The Atlantik was never served with a warrant of arrest and neither did it know that one had been issued. It is understood that the vessel had no cause to ‘escape’ from an arrest because its owners had already been liasing with Shannon SA regarding an outstanding claim.

In fact, on May 16, 2014, the same Shannon SA who had issued the warrant of arrest against the Atlantik, voluntarily lifted the arrest because a settlement between the parties had been reached. While the focus of the report was the ‘escape’ and whether the authorities did what they ought to have done to stop the vessel from leaving, the report probably unwittingly exposed a situation relating to the time when warrants of arrest are being applied for and issued. It is a situation which causes concern.

To put this into some sort of context, one must remember that the arrest of a vessel is an important tool in the hands of a creditor who is owed money by a debtor. It is one way of ensuring that if following an action on the merits, the creditor is awarded a favourable judgment by the relative court, and the debtor is unable to pay the judgment debt, the creditor can actually enforce the judgment against the vessel which would be a form of security. Up until 2005, the jurisdiction of our courts to hear actions in rem against vessels was still regulated by the Admiralty Court Acts of 1840 and 1860.

The grounds which gave our courts jurisdiction (and therefore the grounds upon which one could arrest a vessel to secure an action in rem) were very limited and naturally did not take into account the advances in shipping from 1860 through to the end of the 20th century.

In 1995, a very important exercise was undertaken. A new section in our Code of Organisation and Civil Procedure was created – Section 742 B – granting the courts in Malta jurisdiction in rem over vessels, which section contains a very extensive list of maritime claims put together by following English statute law and the Arrest of Ships Conventions of 1952 and 1991.

Our reputation cannot afford any abuse of the system Apart from this, the 1995 amendments also saw the introduction of a new “warrant of arrest of a ship” with some very carefully written rules, as well as a newly drafted standard application entitled “warrant of arrest of sea vessels”, which application needs to be sworn by the person issuing the warrant, who would swear to the details therein, such as the identification details of the vessel and the place in Malta where the vessel is located.

The end result of the above is that for a person to file an application requesting the issuing of a warrant of arrest against a vessel, the ground upon which the application for the arrest is made needs to be one of the maritime claims listed in the law, and the vessel needs to be present in Maltese territorial waters, otherwise the court has no jurisdiction over it. Failing the satisfaction of these criteria, the arrest is illegally obtained and wrongful.

Bearing all of the above in mind, it therefore comes as a complete surprise to those of us who have been so heavily involved in the development of shipping law in Malta to read in the report that the warrant of arrest in the Atlantik was issued before the vessel entered Maltese territorial waters.

If this is indeed correct, then the application for the warrant to be issued and the issuing of the warrant of arrest by the Maltese courts before the vessel entered Maltese territorial waters was illegal and wrongful. It is not permissible to apply for a warrant of arrest unless the vessel is inside Maltese territorial waters because our courts would only have jurisdiction over a vessel provided it is within the jurisdiction.

It is for this reason that on the same application, the applicant has to swear on oath the place where the vessel is to be found (in Malta), with the indicated authority being Transport Malta. The judges who get presented with these applications at all times of the day and night have a right to expect that the sworn applications presented to them are representative of the truth and that arresting parties are not filing for arrests before vessels are actually in Maltese territorial waters.

Our reputation cannot afford any abuse of the system and as the law stands, no warrant of arrest can be filed, and no warrant of arrest can be granted, unless the vessel is already in Maltese territorial waters; otherwise, a warrant issued by the court when the vessel is not yet in Maltese territorial waters is a warrant obtained illegally and the arrest wrongful and could lead to its rescission.

The issue of whether the Maltese authorities are able to stop vessels fleeing from arrest once arrested is a different story!

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Ann Fenech is a marine litigation lawyer and managing partner at Fenech & Fenech Advocates, the president of the Malta Maritime Law Association and member of the executive committee of the Comité Maritime International.