MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
majeure cannot be invoked by a party which by its actions or inactions has contributed to the damage or loss. Therefore, in order for an event to be classified as force majeure, the event, or force of nature, must be inevitable, in that it could not have been avoided through the exer - cise of due diligence of a bonus pater familias (ie, of a reasonable person). This also entails that the event was not or should not have been foreseeable. Moreover, the event must be causa - tive and directly impede the performance of the obligation. For the defence of force majeure to apply, the impossibility of performance must be absolute, and it will not be sufficient that the performance of the obligation has become more burdensome or is suddenly more expensive to fulfil. The bur - den of proving the impossibility of performance rests on the person alleging it. Given the require - ment of “inevitability”, persons who entered into a contract after the occurrence of a force majeure event might have a hard time proving that the non-performance of their obligation was unavoidable. This has resulted in the inclusion of specific contract variations to account for events that remain disruptive but may no longer qualify as force majeure. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil Malta has transposed various EU Directives in line with the revised Annex VI to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) by means of Subsidiary Legislation 545.18, titled the Quality of Fuels Regulations (the “Regulations”). The Regula - tions regulate the sulphur content of marine fuel and the capping of that sulphur content (mass by mass (m/m)) by all ships, irrespective of flag, when calling in Maltese ports and traversing
Maltese internal waters, territorial waters and Malta’s exclusive economic zone. The Regulator for Energy and Water Services (REWS) established by the Regulator for Energy and Water Services Act is the competent author - ity responsible for the enforcement of sulphur- content limitation in Malta. The Authority for Transport in Malta is also empowered to carry out certain enforcement procedures. Since 1 January 2020, the use of marine fuels with a sulphur content exceeding 0.1% m/m by ships at berth in ports in Malta is prohibited. This prohibition will be extended to the entirety of Maltese waters in 2025, when the Mediterranean basin will be classified as a MARPOL Emission Control Area. Until implementation of these new regulations, in all other areas falling outside Mal - tese ports, but within the Maltese territorial sea, internal waters, exclusive economic zone and any pollution-control zones, the sulphur content of marine fuels (bar a few exceptions) cannot exceed 0.5% m/m. As part of the enforcement of sulphur-content limitation, the REWS has an inspection and monitoring programme in place for vessels which operate for national maritime transport, and for larger vessels which fall under the MAR - POL Convention and travel to Malta from other EU and non-EU ports. Monitoring as part of the programme (which is in line with the detailed requirements as defined by Commission Imple - menting Decision (CID) EU 2015/253) includes analysing the sulphur content in the samples lifted and the vetting of documents related to fuel purchase, storage and use by the vessel. The latest available data shows that, during 2020, the REWS carried out inspections of documents on 107 vessels and collected 32 samples as part
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