MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
When an arrest is obtained to secure a claim in rem, the vessel is considered as being separate and distinct from the rest of the debtor’s pat - rimony. Nonetheless, the arresting party would still need to ensure that the Maltese courts are vested with jurisdiction in rem. The credi - tor’s claim must fall under one of the headings of maritime claims listed in Article 742B of the COCP. Furthermore, unless the claim is a special maritime privilege, the creditor would generally also need to satisfy the “relevant person test”, as prescribed in Article 742D of the COCP, in order to make an arrest in rem. 4.2 Maritime Liens Maritime liens are alien to the Maltese legal sys - tem. The closest equivalents are those claims listed in Section 50 of the MSA, referred to as special maritime privileges. There are 16 special privileges, which include: • any judicial costs incurred in respect of the sale of the ship, salvage costs, crew wages and remuneration; • expenses incurred for the preservation of the ship after her last entry into port; and • moneys due to creditors for provisions, vict - uals, outfit and apparel, incurred prior to the departure of the ship on her last voyage. There is a special privilege for damages and interest due to any seaman for death or personal injury, and regarding expenses attendant on the illness, hurt or injury of any seaman. There is also a privilege for wages and “other sums due” to the crew in respect of their employment on the vessel. Section 50 of the MSA also serves to help com - peting creditors establish the ranking of their respective claims, as the list is organised in a
hierarchical order according to the priority of the nature of those claims. There are two fundamental differences between ordinary maritime claims and special maritime privileges under Maltese law. First, special maritime privileges attach to a ves - sel and will survive any voluntary sale of a vessel for up to a year. Conversely, ordinary maritime claims do not follow the vessel and an arrest in rem would only be possible where those claims satisfy the “relevant person test”. The second cardinal difference relates to rank - ing. 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 person 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, shipbuilder 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 possession over the ship until the debts for any such work or repairs are set - tled. However, a possessory lien is extinguished upon the voluntary release of the ship from the custody of the creditor. 4.3 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. Article 742D of the COCP dictates that an arrest in rem for a maritime claim is only pos - sible 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
345 CHAMBERS.COM
Powered by FlippingBook