News - Malta Maritime Law Association

Marine environment: pollution, preparedness, response and cooperation

April 25, 2021 Leave a Comment

The ‘International Convention on Oil Pollution Preparedness, Response and Co-Operation 1990 (OPRC 1990)’ and the ‘Protocol on Preparedness, Response and Co-Operation to Pollution Incidents by Hazardous and Noxious Substances (OPRC-HNS 2000), are two international legal instruments drawn by the International Maritime Organisation (IMO). Malta acceded to both in 2003.

Together, these two legal instruments create a regulatory framework on pollution incidents caused by oil (meaning petroleum in any form) or by hazardous and noxious substances other than oil (such as chemicals), likely to cause detrimental affects to human health and marine life once released into the marine environment and which require an immediate response.

The OPRC Convention and the OPRC-HNS Protocol address the handling of marine pollution incidents on a national and international level.

At an international level, State parties may request assistance from any other State party when encountering a major pollution incident. Additionally, State parties are encouraged to establish multilateral or bilateral agreements for pollution preparedness and response and to cooperate in research and development programmes including on combatting pollution incidents.

On a national scale, both the OPRC Convention and the OPRC-HNS Protocol oblige State parties to set up a national system for responding to oil and HNS pollution incidents, including through the appointment of a designated national authority and the drawing up of a national contingency plan, supported by response equipment, communication channels, regular training and exercises.

In this respect, the ‘Oil and Hazardous and Noxious Substances Pollution Preparedness, Response and Co-Operation Regulations’ were recently enacted in Malta through Legal Notice 450 of 2020 (the “Regulations”). The Regulations came into force on 1st January 2021. Transport Malta (“TM”) issued Port Notice No.16 of 2020, which previously notified relevant persons of the eventual application of the Regulations and invited all marine terminals and facilities to evaluate their level of preparedness and carry out a risk assessment to update or draw up new plans as needed.

The Regulations apply, in varying degrees, to the Authority for Transport in Malta, to operators of marine terminals (briefly, places where dangerous cargoes, bunkers and substances are loaded, discharged or handled on board ships) and operators of marine facilities (briefly, places other than a marine terminal where ships obtain services such as tank cleaning and slop/residue removal) based in Malta, to yacht marinas based in Malta, and to ships, including offshore units, whilst in the territorial waters of Malta.

Often, a marine pollution incident extends beyond an operator’s terminal or facility, necessitating a coordinated effort

TM is the ‘National Competent Authority’ responsible to create, implement, maintain, update, and enforce the ‘National Marine Pollution Contingency Plan’ (NMPCP).

The NMPCP is awarded the force of law by the Regulations and is therefore to be considered as part of and enforceable as the laws of Malta.

In its role as ‘National Competent Authority’, TM enjoys several powers and functions. These include approving pollution emergency plans of marine terminals and facilities, assisting such operators in the development of the said plans, monitoring their implementation as well as ordering any changes thereto.

Additionally, TM shall have the power to organise periodical national training and drills in pollution emergency and response with the participation of personnel from local operators.

Operators of marine terminals, facilities and yacht marinas must have a separate marine pollution response emergency plan, subject to approval by TM. Existing operators are to submit theirs by December 31, 2021. Pollution emergency plans must comply with the NMPCP and should be constantly updated to address any changes in the activities or the risks of the operator.

In any event, a pollution emergency plan is to be revised every five years while operators are obliged to inform TM and submit a new plan or amendments to the existing plan within three months from the occurrence of any major changes that affect or could affect the material validity or effectiveness of the emergency pollution plan in question.

Operators are obliged to identify an individual within their organization who shall be responsible for the operator’s pollution emergency plan and who shall be the point of contact between the operator and TM.

Furthermore, the keeping of minimum level first-aid pollution response equipment, training of personnel and the carrying out of drills is expected of all operators.

Often, a marine pollution incident extends beyond an operator’s terminal or facility, necessitating a coordinated effort between operator/s and TM. On this note, the Regulations allow joint pollution emergency plans within the same port area.

Where ports or areas are under the administration and management of TM, pollution emergency plans are to be prepared by TM by 31st December 2021.

Operators of marine terminals, facilities, and yacht marinas as well as masters of vessels navigating within Maltese waters are saddled with the obligation of reporting any marine pollution incident to TM. The duty to report also extends to masters of vessels located within Malta’s contiguous zone – briefly, this is an area extending to 24 nautical miles from Malta’s coasts over which Malta may exercise certain powers, as permitted under international law, including as provided under the United Nations Law of the Sea Convention (1982). This includes the power to exercise the control necessary to prevent any contravention of any law relating to pollution. Extending the right to report marine pollution incidents to vessels within Malta’s contiguous zone acts as an additional safeguard against pollution incidents by creating an added ‘buffer zone’ before any pollution hits Malta’s coasts. The Regulations do not exclude the applicability of any other obligations concerning pollution or on any related matters to the persons concerned. Therefore, for instance, operators of marine terminals and marine facilities are still obliged to adhere to the relevant provisions contained in the Dangerous Cargo Ships, Marine Terminals and Facilities and Bunkering Regulations (Legal Notice 1 of 1996, as amended). In fact, the Regulations specify that the pollution emergency plans of marine terminals and marine facilities are to include the applicable obligations under the ‘Dangerous Cargo Ships, Marine Terminals and Facilities and Bunkering Regulations’. With respect to ships, the ‘Safety Management System’ adopted onboard ships in accordance with the ISM Code remains relevant in so far as pollution prevention in ship operations are concerned.

Failure to comply with the Regulations is an offence and non-compliant operators are subject to a fine upon conviction. Additionally, TM may impose administrative fines.

Earlier this year, TM organised a webinar together with the Malta Maritime Forum to introduce the Regulations. It is understood that TM is presently updating the NMPCP and its port plans. Guidance on the implementation of the Regulations is expected to be published.

by Jan Rossi and Ilias Theocharis of Ganado Advocates

Source: Times of Malta, photo: Shutterstock

Court affirms scope and effect of Section 37 injunctions where security has been placed

April 22, 2021 Leave a Comment

In the recent case of Dr Ann Fenech as mandatory for and on behalf of Clearlake Shipping Pte Ltd v Global LNG Limited, the creditor obtained a Section 37 order on a provisional basis from the Maltese courts as security for a claim arising from a dispute under a charterparty concluded between the parties regarding the MV Portovyy (for further details please see “Court orders extension of effects of flag injunction to security deposited by debtor“). The purpose of the order was to prohibit the vessel’s sale, transfer or deregistration while the merits of the case were being determined in the appropriate fora – in this case, arbitration in London.

On 18 March 2020 the Maltese courts granted the Section 37 order on a provisional basis. This ex parte application seeking an immediate provisional order was filed, as is customary, together with the statutory sworn application containing the same demands. Such an application is then served on the other party which has 20 days to defend the application. The object of an ex parte application leading to an interim provisional order is to protect the status quo until the request is decided in due course. In this case, the owners eventually opted to file a cash deposit in the amount claimed by the charterers in the court registry, together with a request for the court to order that the Section 37 order be revoked.

By means of a 26 November 2020 decree, which was delivered in open court with the agreement of both parties, the court held that rather than ordering the revocation of the Section 37 injunction, it was, in terms of the law regulating the procedure (ie, Section 37 of the Merchant Shipping Act), ordering that the effects of said order would cease to exist insofar as the vessel itself was concerned, but would continue to apply exclusively to the cash deposit provided by way of security by the owners pending the final determination of the merits or settlement being reached by the parties.

The charterers subsequently filed an application before the Maltese courts requesting that the effects of the order be extended for a further year. This would align with the law, which envisages that any order of this nature granted by the courts expires within one year, unless a request for an extension is made by the creditor on the basis that such order was still required. The court granted this request by means of a decree of 8 February 2021.

Challenge to decrees

Given the above, it was of considerable surprise to the charterers when the owners subsequently filed a further application before the Maltese courts requesting revocation of both the 26 November 2020 and 8 February 2021 decrees.

The owners based their request for the revocation of the 26 November 2020 decree on the argument that, following the cash deposit made by the owners, the courts had never granted a final order and therefore procedures had effectively been extinguished. They further argued that when the law refers to the effects of the order applying to any amount deposited as security by the owners, reference is being made to a final order as opposed to a provisional order as had been granted in this case. The owners argued that there was no legal basis for revocation of either the 26 November 2020 or 8 February 2021 decree. In fact, there was every reason, given the purpose of the procedure provided by Section 37 of the Merchant Shipping Act, to extend:

the validity of the decrees by one year; and
the effects of the order to the cash deposit.

The charterers responded that it was indeed necessary for the court to extend the effects of the 18 March 2020 order to the security deposited by the owners pending the determination of the merits of the case. The charterers noted that when dealing with the extension of the effects of the order to the security deposited by the owners, the law makes no distinction between provisional and final orders. Further, if an order extending the effects of a prohibition from the transfer of the vessel to the free circulation of the security deposited instead of the vessel is not granted when an owner opts to deposit security, not only would such security remain unregulated, but the owners could effectively proceed with the withdrawal of the deposited sum pending the determination of the merits. The charterers argued that this interpretation contravened the scope of the Section 37 injunction, which provides a creditor with the possibility of obtaining security, pending the determination of the merits of the case, for the entire duration of the case.

Decision

By means of a 17 March 2021 decree, the court denied the owners’ requests and agreed with the charterers’ arguments in their entirety. The court held that the law made no distinction between provisional and final orders in allowing the effects of the Section 37 injunction to be extended to security deposited by the owners in the context of a Section 37 action. The court held that any differing interpretation would render Section 37 totally redundant, leading to circumstances where, if an owner deposited a cash security instead of leaving the attachment on the transfer of the vessel, the owners could freely withdraw the cash deposit irrespective of the fact that the action on the merits is ongoing and the security is still required. The court further denied the request for the revocation of the decree, extending the order for one year for the same reasons.

Comment

This case confirms what is already stated clearly in Article 37(4) of the law, which reads as follows:

Where the respondent either deposits in court the amount of the claim… or gives security… where the court has issued the order, it shall revoke the same with respect to the ship or the share therein, and the provisions of this article shall thereupon be applicable with respect to the amount so deposited or the security so given as the case may be.

This decision illustrates the effectiveness of the Section 37 injunction as a tool available to creditors seeking to obtain security for a claim pending the determination of the merits of the case. While the law allows owners to opt to deposit security, thereby removing the effects of the injunction from the vessel itself, the legislature has catered for these instances to ensure that creditors’ rights are not prejudiced.

by Dr Ann Fenech and Dr Alison Vassallo, Fenech & Fenech Advocates

Source: ILO

Revised Non-Convention Vessel (NCV) Code

April 20, 2021 Leave a Comment

The Malta Non-Convention Vessel (NCV) Code which previously came into force on the 1^st January 2019, has been revised and updated following consultation with interested parties by Transport Malta. The revised code comes into force on the 1^st September 2021 and is intended to better reflect and serve the needs of the industry and market.

The NCV Code applies to all Non-Convention Vessels ≥ 15m Length Overall, including commercial vessels ≥ 15m Length Overall which are certified and operating on domestic navigation including those vessels operating exclusively within Maltese waters and which are engaged in or intended for use in any trade, business or calling or operating for hire or reward, in the carriage of cargo/supplies/passengers or providing port services or services to other vessels.

Existing vessels which already hold an NCV Certificate must comply with the revised code by the vessel’s first periodical survey carried out on or after the 1st September 2021.

The Code can be downloaded from https://www.transport.gov.mt/NCV-Code-Rev-2.pdf-f6200

By Martina Farrugia and Lara Saguna Axiaq, Fenech & Fenech Advocates

Source: Lexology

The Grimaldi Group strengthens its presence in Malta

April 8, 2021 Leave a Comment

Naples, 6th of April 2021: In recent months, the Naples-based Grimaldi Group has proceeded to significantly strengthen its presence in Malta through various initiatives, showing its full commitment in promoting the country’s maritime vocation.

Following the effects of Brexit, Atlantic Container Line (ACL), a Grimaldi Group company, has proceeded to reflag its fleet in the last six months, leaving the Union Jack and opting for the Malta flag. A total of nine vessels of ACL are currently under Maltese flag while another one is due to be added in the next few months. ACL operates the biggest con/ro vessels in the world, offering a liner service between various North European and North American ports for the transport of rolling units and containers.

Moreover, Malta Motorways of the Sea Ltd (MMOS), a Grimaldi Group company, has recently strengthened its fleet with the purchase of two additional vessels: the ro/ro units Eurocargo Catania and Eurocargo Sicilia. Currently, Valletta-based MMOS has a fleet of six modern ro/ro vessels and operates various regular maritime services in the Mediterranean.

Particularly, MMOS runs, in cooperation with the Grimaldi Group, a regular service between mainland Italy (Genoa, Livorno, Salerno and Catania) and Malta, under a Public Service Obligation contract with the Maltese Government, thus guaranteeing the shipment of essential commodities into the country.

With a view of promoting maritime education in Malta, MMOS has a permanent cooperation agreement with MCAST – Maritime Institute for the training of sea cadets onboard its vessels. Hundreds of young Maltese cadets have received training so far, many of whom have also been hired by Grimaldi Group companies.

Finally, in the course of the month, the Grimaldi Group will further strengthen the maritime connections it offers between Italy (Genoa, Livorno, Catania) and Malta. In fact, in the second half of the April, Malta is due to be served with one of the 12 GG5G-class (Grimaldi Green 5th Generation) ro/ro vessels, currently under construction in Asia, four of which already delivered to the Group. A second vessel of the same class will be deployed on the same route at the beginning of June.

C O M U N I C A T O S T A M P A

The GG5G-class vessels are the biggest short sea ro/ro units in the world as well as the most ecofriendly. They have a length of 238 meters, a beam of 34 meters, a gross tonnage of 67,311 tonnes and a service speed of 20.8 knots. Their loading capacity is twice that of the previous class of ro/ro ships deployed by the Grimaldi Group: each vessel can carry over 500 trailers as well as 180 cars. Their quarter stern ramp allows the loading of freight units weighing up to 150 tons.

At the same speed, the GG5G-class vessels consume the same amount of fuel compared to the previous generation vessels and are therefore able to halve CO2 emissions per unit transported: this was made possible through the adoption of several innovative technological solutions that optimize fuel consumption and ship performance. Moreover, they are equipped with an exhaust gas cleaning system for the reduction of sulphur and particulate emissions.

During port stays, the GG5G-class vessels are capable of cutting emissions to zero by using the electricity stored in mega lithium batteries with a total power of 5 MWh, which are recharged during navigation thanks to shaft generators and 350 m2 of solar panels.

“We are very proud to contribute to strengthening our long affiliation with the Maltese Islands, its people and its industry”, states Emanuele Grimaldi, Managing Director of the Grimaldi Group and Vice-President of the Malta International Shipping Council. “Having been present for over half a century in Malta is a demonstration of our commitment to the wellbeing of this nation whom we intend to serve with increasingly modern and ecofriendly vessels”, concludes Emanuele Grimaldi.

Court orders extension of effects of flag injunction to security deposited by debtor

February 12, 2021 Leave a Comment

Creditors’ ability under Maltese law to file an application before the courts for an injunction prohibiting the sale, transfer or deregistration of Maltese-flagged vessels has proven to be a useful and effective tool to protect maritime claims.

Section 37 injunction

In essence, the Section 37 injunction allows creditors, in certain circumstances which give rise to a maritime claim attracting the jurisdiction of the Maltese courts in rem, to obtain a court order which prohibits the vessel from being sold or entering any further mortgages until the merits of the case have been decided in the appropriate jurisdiction. When granted, the order is served on the registrar of Maltese ships and is recorded against the vessel’s entry in the registry. This obliges the registrar to refrain from:

recognising any transfer of ownership;
recognising any further mortgages; and
issuing any deletion certificate for the vessel.

Further, if a transcript of register is issued, the injunction will appear on the transcript.

The law provides that the demand for the order must be made by sworn application as though the party were commencing an action. As with all such applications, this must be served on the defendant, which has 20 days to file a defence. The matter is also given a hearing date. Submissions and ultimately a court decision follow. The court will decide whether to agree to the request to order that no further transfers can be effected until the matter on the merits is decided. As this will take time and because any forewarning in the issuing of the injunction may defeat the object of the exercise, the law allows creditors to file an ex parte application together with the statutory sworn application, containing the same demands and requesting that the court agree to the order immediately and on an interim basis until the statutory sworn application has been heard and decided definitively. This caters for the element of urgency which often accompanies the necessity of obtaining such injunctions to ensure timely protection of creditors’ interests.

Case law

In the recent case of Dr Ann Fenech as mandatory for and on behalf of Clearlake Shipping Pte Ltd v Global LNG Limited, the creditor followed the above procedure in seeking security for a claim arising from a dispute under a charterparty concluded between the parties in relation to the MV Portovyy. While the merits were, in terms of the arbitration clause contained in the charterparty, subject to arbitration in London, the charterers were keen to ensure that their rights would be secured in the eventuality of them obtaining a favourable award.

The Maltese courts granted the Section 37 order on a provisional basis on the same day as the filing of both the statutory sworn application and the ex parte application (as described above). The owners eventually filed a cash deposit in the amount claimed by the charterers in the court registry, together with a request for the court to order that the Section 37 order be revoked.

By means of a 26 November 2020 decree, the court held that rather than ordering the revocation of the Section 37 injunction, the effects of said order would cease to exist insofar as the vessel itself was concerned but would continue to apply exclusively to the cash deposit provided by way of security by the owners, pending the final determination of the merits or a settlement being reached by the parties.

Comment

This case illustrates the practical efficacy of these procedures, which are an efficient tool for obtaining security while allowing owners to continue to make full use of their vessels. Further, the law allows owners to shift the effect of such an injunction from the vessel itself onto adequate security that may be provided by them in terms of law.

By Alison Vassallo, Fenech & Fenech Advocates

Source: ILO

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Member of the Comité Maritime International

Marine environment: pollution, preparedness, response and cooperation

Court affirms scope and effect of Section 37 injunctions where security has been placed

Revised Non-Convention Vessel (NCV) Code

The Grimaldi Group strengthens its presence in Malta

Court orders extension of effects of flag injunction to security deposited by debtor

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