MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
Rules have effect in relation to and in connection with the carriage of goods by sea in any vessel used for that purpose and carrying goods from Malta to any other port, but not if that vessel is carrying goods within the limits of Malta, trans - porting them from one island to another. Thus, the Hague Rules are not applicable as a mat - ter of law in relation to carried cargo that was loaded on board a vessel in a foreign port and discharged in Malta. 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 liabil - ity 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. 3.2 Title to Sue on a Bill of Lading Maltese law on bills of lading is contained in Arti - cles 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. Mal - tese 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 English case law on the matter. Although Maltese courts are not obliged to follow English case law, English juris - prudence has substantial persuasive value. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages Where the bill of lading contains a Clause Para - mount 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 Mal - tese courts have ever had to consider apply - ing 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 avail - able would be those limits found under the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims. 3.4 Misdeclaration of Cargo Maltese law is silent on the issue of misdecla - ration, and consequently a carrier’s right to commence an action against the shipper for misdeclaration or misdescription 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 car - rier claimed. If the misdeclaration is discovered at the beginning of the voyage and prior to the departure 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 misde -
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