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28 January 2009
Despite speaking of ‘arresting’ vessels in Malta, until January 2009 no ‘warrant of arrest’ as such existed. In order to arrest a vessel, two warrants needed to be issued - a warrant of impediment of departure and a warrant of seizure. The warrant of impediment of departure had the effect of stopping the vessel from leaving Maltese territorial waters, while the warrant of seizure enabled the court marshal to seize the vessel’s documents and effectively dispossess the owner of use of its vessel.
Procedural matters such as these are regulated by the Code of Organization and Civil Procedure, which over the last two years has been the subject of substantial amendment. In 2006 the entire regime governing jurisdiction in rem was revisited, bringing Maltese law into line with the UK Supreme Court Act and the grounds upon which Maltese courts can exercise jurisdiction in rem into line with the 1999 Arrest of Ships Convention.
In December 2008 Parliament passed Act XV/2008, which brought into force a number of procedural changes, including the creation of one single warrant of arrest of a seagoing vessel to replace the previous warrant of impediment of departure and warrant of seizure.
As of January 2009, any party wishing to arrest a vessel must use this single warrant. Depending on whether security for a claim or enforcement of a judgment is being sought, either a precautionary warrant of arrest or an executive warrant of arrest will be needed.
Applications to issue a warrant of arrest are made on a pre-printed form. Since the application is an ex parte application, all applicants need to do is fill in the details, which include the name of the vessel, four other identifying factors and the location where the vessel is to be found. The vessel must be in Maltese territorial waters; once in Maltese territorial waters, the vessel is deemed to be under the control and authority of the Malta Maritime Authority.
Once complete, the application is taken to the duty judge and granted immediately. The process is extremely efficient and swift. Following confirmation of the judge’s order, the court marshal first serves the warrant on the Malta Maritime Authority and then proceeds to the vessel, where he or she must serve the warrant on the vessel and remove all of its documents, including the vessel’s registration certificates. These documents are then deposited in court until the warrant is lifted.
There is no automatic right to provide counter-security, and the law states that the owner, master or agent of the vessel may, “upon good grounds being shown”, request the court to order the party suing out the warrant to provide sufficient security.
The warrant can be lifted only if security for the amount indicated in the warrant is put up in court. Alternatively, in limited circumstances the vessel can challenge the issue of the warrant - for example, if:
Furthermore, the Malta Maritime Authority may itself request the court to withdraw the warrant of arrest if the court is satisfied that due to the nature of the cargo or other circumstances concerning safety or pollution, it is advisable that the ship should leave port and/or Maltese territorial waters.
Finally, for the first time the legislature has accepted that if an arrested vessel escapes from Maltese territorial waters while still under arrest, the owner, bareboat charterer or other party in possession of the ship at the time of such breach will be jointly and severally liable to a penalty of €116,470, which is payable to the party issuing the warrant.
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