MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
The second cardinal difference relates to ranking. All the special maritime privileges enjoy a higher ranking than ordinary maritime claims. Liabilities resulting from a charterparty could provide a ground for a maritime claim, provided those claims satisfy the “relevant per - son test” envisaged under Article 742D of the COCP. Maltese law recognises that certain creditors may retain a possessory lien over a vessel. Any ship- repairer, ship-builder or creditor, into whose care and authority a ship has been placed for the execution of works or any other purpose, is entitled to retain pos - session over the ship until the debts for any such work or repairs are settled. However, a possessory lien is extinguished upon the voluntary release of the ship from the custody of the creditor. 5.3 Liability in Personam for Owners or Demise Charterers Generally, a vessel may not be arrested in rem unless the “relevant person test” has also been satisfied. Arti - cle 742D of the COCP dictates that an arrest in rem for a maritime claim is only possible where the party who would be liable for the claim in an action in personam (the relevant person) was, when the cause of action arose, an owner or charterer of, or in possession or in control of, the ship or vessel, and that same relevant person is either the owner, beneficial owner or bare - boat charterer of the ship at the time of the arrest. There are several exceptions to this rule. Where the claim attracts a special maritime privilege, the creditor may arrest the ship, irrespective of who incurred the debt. Likewise, there is no need to satisfy the “relevant person test” when the underlying claim relates to: • the possession, ownership or title of a ship; • any issue arising between co-owners of a ship in so far as the ownership, possession, employment or earnings of that ship are concerned; or • a claim in respect of a mortgage, hypothec or charge registered over the ship. 5.4 Unpaid Bunkers Article 742B(o) of the COCP provides that a claim “in respect of goods, materials, provisions, bunkers, sup - plies and necessaries supplied, or services rendered to a ship for her operation, management, preservation
or maintenance” would be classified as a maritime claim. Accordingly, a bunker supplier would be able to arrest a ship in rem to secure a claim for unpaid bunkers. Maltese law does not differentiate between contractual suppliers and physical suppliers. Both may arrest a vessel in rem for unpaid bunkers. However, any supplier seeking to secure an arrest for such a claim must satisfy the “relevant person test”. Accordingly, a contractual supplier or a physical sup - plier may only arrest the vessel where the owner or the bareboat charterer of the vessel is the party liable in personam for the unpaid debt. Following the collapse of the OW Bunkers Group, sev - eral court cases were filed where local bunker suppli - ers relied on stipulations in their bunker delivery notes (which incorporate their standard terms and condi - tions) in order to try to satisfy the “relevant person test” by holding the owners liable for the unpaid debt, even where the fuel products were ordered by a char - terer or an intermediary bunker trader. Maltese juris - prudence has been largely inconsistent on this matter; however, the more recent judgments on the subject have taken the position that a supplier cannot rely on the wording of the bunker delivery note to arrest a ship where the owner or bareboat charterer was not the party who contracted to purchase the bunkers. Nonetheless, there may be cases where a claim for unpaid bunker supplies would be classified as a spe - cial maritime privilege and, thus, an arrest may be issued against the vessel, irrespective of who con - tracted to purchase the bunkers. Claims relating to bunkers furnished to a ship after the vessel’s last entry into port, or prior to her departure on her last voyage, would classify as special maritime privileges. All other bunker supplies would, however, be classified as ordi - nary maritime claims. Under Maltese law, a charterer does not have the authority to bind the vessel. However, a vessel may be held liable in rem for bunkers ordered by a char - terer provided the “relevant person test” is satisfied or the bunker supply in question would classify as a special privilege.
352 CHAMBERS.COM
Powered by FlippingBook