MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
In the case of disputes arising under a bill of lading related to goods discharged in Malta covered by a bill of lading containing a Clause Paramount, Maltese courts will apply the liability regime indicated in the Clause Paramount. Therefore, in practice, the courts tend to apply the Hague Rules, or the Hague-Visby Rules where indicated, which are the most commonly applicable liability regimes. There is no known case in which a Maltese court has applied the Hamburg Rules. The Rotterdam Rules are not yet in force. If the bill of lading does not contain a Clause Paramount incorporating the Hague Rules or the Hague-Visby Rules, the laws which govern the dispute would be the Maltese Civil Code and the Commercial Code. 4.2 Title to Sue on a Bill of Lading Maltese law on bills of lading is contained in Articles 321 to 327 of the Commercial Code, which are quite archaic, and merit being revised. While they do not deal with title to sue directly, they imply that (by and large) the parties to the bill who would be entitled to sue on the bill would be the shipper, consignee and any subsequent endorsee who is a subsequent holder of the bill of lading. Maltese law provides that the bill of lading may be drawn to order or to bearer, or in favour of a specified named party, and thus any such holder of the bill of lading would have title to sue. Maltese law expressly allows for the endorsement of the bill of lading, and thus title to sue may be assigned. It is important to note that parties to a dispute frequently refer to Eng - lish case law on the matter. Although Maltese courts are not obliged to follow English case law, English jurisprudence has substantial persuasive value. 4.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Where the bill of lading contains a Clause Paramount applying the Hague Rules or the Hague-Visby Rules, the courts will apply the liability regime, including the limitation provisions found in those Rules. It is not known whether the Maltese courts have ever had to consider applying the liability regime in the Hamburg Rules or Rotterdam Rules. However, if there is no Clause Paramount indicating the liability regime to be applied, Maltese law itself does not provide the ship- owner with any rights to limit their liability for cargo
damage along the lines found in the various Rules. The only rights of limitation available would be those limits found under the 1996 Protocol to the 1976 Con - vention on Limitation of Liability for Maritime Claims. 4.4 Misdeclaration of Cargo Maltese law is silent on the issue of misdeclaration, and consequently a carrier’s right to commence an action against the shipper for misdeclaration or mis - description would be governed by the general law of contract. Much would depend on the stage at which the carrier discovered the misdescription and what the carrier claimed. If the misdeclaration is discovered at the beginning of the voyage and prior to the depar - ture of the vessel, it would be pertinent to establish whether that misdescription was of sufficient gravity to give the carrier the right to rescind the contract; alternatively, if the misdescription is discovered during or at the end of the voyage, the carrier would have to establish that the misdescription has actually caused damage to the carrier. 4.5 Time Bar for Filing Claims for Damaged or Lost Cargo The courts would apply the time limits for filing claims for damaged or lost cargo in terms of the liability regime indicated in the Clause Paramount. If there is no Clause Paramount, the position is less clear. Regarding lost or undelivered cargo, Article 544I of the Commercial Code states that actions for the delivery of goods are time-barred by the lapse of one year from the arrival of the vessel. With respect to damaged cargo, there is no particular provision; consequently, if the claim is based in contract, it would attract a five-year time limit, and if the claim is based in tort, it would attract a two-year time limit. The extension of time bars is not a straightforward issue. Some time bars can be interrupted, allowing time to start to run again, while others cannot be inter - rupted, even if the parties agree that these should be extended. The latter time bars are referred to as being “peremptory”. An example of a peremptory time limit is that previously referred to relating to lost or unde - livered cargo. Such a time limit may not be extended, even if by mutual agreement of the parties.
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