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19 July 2006
For some time now there have been calls to update the legislation relating to transportation. However, 2006 is due to see the introduction of three new laws that have been outstanding for a number of years.
Parliament is considering the draft Act to Incorporate the Convention on the Contract for the International Carriage of Goods by Road - the adoption of which has been long awaited. The fact that Malta had not adopted the convention has, at times, caused difficulties for both importers and exporters, given that an increasing amount of Malta's imported goods now reach Malta on trailers by means of door-to-door transportation. Therefore, consignment notes have become extremely common; however, the terms of such notes have often led to conflicting judgments, particularly when they seek to incorporate the limitations contained in the convention. This is because Maltese law does not recognize the notion of the limitation of liability; instead, every person is liable for damages that ensue as a result of his or her fault. In previous cases of damage to goods in transit a number of judges have ignored the fact that the contracts in question were governed by the convention (and the limitation of liability that it sets out). Instead, these judges applied Maltese law, holding the person responsible fully liable for the damages irrespective of any limitation rights he or she may have had under the convention.
On the other hand, other judges have given complete weight to the will of the parties, holding that if the parties to the contract have agreed to abide by a convention that seeks to limit liability, then so be it. This has led to conflicting judgments of equal validity, as there is no doctrine of precedent under Maltese law. Malta's adoption of the convention will be welcomed in the interests of certainty and uniformity.
Parliament is also considering a bill to amend the Code of Organization and Civil Procedure. As far as transportation is concerned, it is hoped that the final draft of the bill will contain sections relating to the arrest of ships and jurisdiction in rem (against a vessel), as well as court-approved sales.
A new law setting out clear grounds upon which the courts can exercise jurisdiction in rem has been needed for several decades. At present, the jurisdiction of the Maltese courts in rem is still regulated by the English Admiralty Court Acts 1840 and 1861. Furthermore, given that a party must currently establish the jurisdiction of the Maltese courts in rem or in personam (against a person) prior to arresting a vessel, the very limited grounds upon which the courts can exercise jurisdiction in rem has meant that one can arrest a vessel in only very limited circumstances. It is hoped that the new grounds of jurisdiction will reflect the grounds laid down in the Arrest Conventions 1954 and 1999. Apart from these important amendments it is also hoped that the new law will see the introduction of court-approved or court-sanctioned sales. The Merchant Shipping Act already recognizes, in certain circumstances, the approval or sanction of the sale of ships by foreign courts; however, as the law stands currently, it is not possible for a creditor to request the court to approve a private sale. Under the present law all sales involving the courts are judicial sales by auction, which can at times prevent the vessel from obtaining its optimum price.
Another law that is expected to come to fruition during 2006 is the new law on ship agency. Until now, there has not been a single piece of legislation regulating the trade of shipping agents. Instead, the rights, obligations and duties of shipping agents in Malta are found scattered among several pieces of legislation. However, a single act containing all the provisions relating to shipping agents is expected to be proposed shortly. This law would cover:
This forthcoming legislation is supported by both the regulator and ship agents. The regulator needs to ensure that standards are set and maintained, and ship agents need to ensure that internal industry standards are maintained so that those acting as ship agents do not give a bad name to others in the industry.
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