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MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates

7. Enforcement of Law and Jurisdiction and Arbitration Clauses 7.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading The Maltese courts will largely recognise and enforce a law and jurisdiction clause stated in bills of lading. However, if it is shown that there is a closer connec - tion with Malta, and where the law and jurisdiction clause is included in a document that has not been negotiated by the parties and/or is presented post facto, the court may be swayed to deviate from the clauses in the bills of lading in favour of Maltese juris - diction (naturally, provided that the Maltese courts would have jurisdiction to determine the matter). 7.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading A law and arbitration clause in a charterparty that has been incorporated into the relevant bill of lading will not automatically be recognised by the Maltese courts unless it satisfies certain criteria. In Northeastern Breeze , the court held that a generic clause incorpo - rating the terms of the charterparty would not suffice, and that the arbitration clause would have to be spe - cifically incorporated into the bill of lading for this to be given effect, or specific reference to its applicabil - ity to the bill of lading would have to be made in the charterparty. This is a position borne out of common law and commercial practice. This is also evident from the Arbitration Act, Chapter 387, of the Laws of Malta, which provides in Article 2 (c) that “an arbitration agreement is also concluded by the issuance of a bill of lading, if the latter con - tains an express reference to an arbitration clause in a charterparty”. 7.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is appli - cable in Malta. The process by which a foreign arbitral award can be registered in Malta is set out in the Arbi - tration Rules, Subsidiary Legislation 387.01.

was transposed into Maltese domestic legislation by means of the 2003 Limitation of Liability for Maritime Claims Regulations, Subsidiary Legislation 234.16 of the Laws of Malta. Malta is further bound by Regulation (EC) No 392 of 2009 on the liability of carriers of passengers by sea in the event of accidents, which incorporated the 2002 Protocol to the Athens Convention, and Regulation (EC) No 1177/2010 on the rights of passengers when travelling by sea and inland waterways. Time Limit for Filing a Claim Any action for damages arising out of the death of or personal injury to a passenger or for loss or damage to luggage shall be time-barred by the lapsing of two years. The two years begin to run as follows: • personal injury – from the date of disembarkation; • death – from the date when the passenger should have disembarked, or, if a personal injury resulting in death, from the date of death, if occurring within three years from disembarkation; and • loss or damage to luggage – from the date of dis - embarkation or from the date when disembarkation should have occurred, whichever is later. Limitation of Liability in Respect of a Passenger’s Claims Under Subsidiary Legislation 234.16 of the Laws of Malta, a ship-owner may limit their liability in respect of a passenger’s claims to claims for loss of life or personal injury, in addition to property claims, which mirror those found in the 1996 LLMC Protocol. Malta has exercised its discretion allowed under the Convention and has determined that, for a ship with a tonnage not exceeding 300 tons, the limitation will be 500,000 Units of Account. Maritime Lien or Maritime Claim A claim for indemnity for a personal injury of a passen - ger would not attract a special privilege under Maltese law; however, it may qualify as a maritime claim in cases where the “relevant person test” is satisfied in accordance with Article 742D of the COCP.

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