MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
owner or charterer of, or in possession or in con - trol of, the ship or vessel, and that same relevant person is either the owner, beneficial owner or bareboat 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 con - cerned; or • a claim in respect of a mortgage, hypothec or charge registered over the ship. 4.4 Unpaid Bunkers Article 742B(o) of the COCP provides that a claim “in respect of goods, materials, provisions, bunkers, supplies and necessaries supplied, or services rendered to a ship for her operation, management, preservation or maintenance” would be classified as a maritime claim. Accord - ingly, 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 con - tractual 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 supplier 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, several court cases were filed where local bunker suppliers relied on stipulations in their bunker delivery notes (which incorporate their standard terms and conditions) in order to try to satisfy the “relevant person test” by hold - ing the owners liable for the unpaid debt, even where the fuel products were ordered by a char - terer or an intermediary bunker trader. Maltese jurisprudence 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 con - tracted to purchase the bunkers. Nonetheless, there may be cases where a claim for unpaid bunker supplies would be classi - fied as a special maritime privilege and, thus, an arrest may be issued against the vessel, irrespective of who contracted 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 ordinary 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 charterer provided the “relevant person test” is satisfied or the bunker supply in question would classify as a special privilege. 4.5 Arresting a Vessel Formalities A creditor seeking to arrest a vessel in Malta must submit an arrest application, including all the relevant details about the parties, the ves - sel and the nature of the claim, as well as the
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