MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims Malta is a party to the Athens Convention on the Carriage of Passengers and their Luggage by Sea, 1974, incorporated by means of the Merchant Shipping (Carriage of Passengers by Sea) Regulation, Subsidiary Legislation 234.52 of the Laws of Malta. The resolution of mari - time passenger claims is also dealt with under the 1976 Convention on Limitation of Liability for Maritime Claims, as amended by the 1996 Protocol (the “1996 LLMC Protocol”), which was transposed into Maltese domestic legislation by means of the 2003 Limitation of Liability for Mari - time 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 pas - sengers 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 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 disembar - kation; • 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 sea and inland waterways. Time Limit for Filing a Claim
4.12 Damages in the Event of Wrongful Arrest of a Vessel The grounds upon which an arrested party can legitimately claim damages and penalties from an arresting party due to a wrongful arrest are explicitly provided for in Article 836(8) of the COCP. Should a court set aside an arrest, the owners would generally only be entitled to claim damages in the following four circumstances: • where, following the arrest, the arresting party failed to commence proceedings on the mer - its within the statutory 20-day timeframe; • where the creditor failed to make a demand for payment from the debtor within the 15 days preceding the arrest – this, however, does not apply when there is an urgent need for the issuance of the warrant; • where the arresting creditor had knowledge of the ship-owner’s solvency and its clear financial ability to pay the claims; and • where the arrest was filed maliciously, frivo - lously or vexatiously. There is no statutory limit on the amounts of damages which a court may award; however, the ship-owner must prove a causal link, proving that the damages it suffered were a result of the wrongful arrest. The aforementioned four grounds also give rise to the owner’s right to claim statutory penalties from the arresting parties, which are limited to a sum of between EUR1,164.69 and EUR6,988.12. However, should the court conclude that the arrest was filed maliciously, the penalties to be imposed would be of no less than EUR11,600. It should be noted, however, that the Maltese courts are extremely reluctant to impose statu - tory penalties, and jurisprudence in this regard is quite consistent.
351 CHAMBERS.COM
Powered by FlippingBook