Fenech & Fenech Advocates updates

Unnecessary risks constitute breach of marine insurance policy
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 27 April 2016

The Maltese Civil Court recently held that underwriters need not make payments under an insurance policy when the loss or damages occurred due to a fault or negligence on the part of the assured and where the assured's behaviour constitutes a breach of policy. This judgment highlights the importance of ensuring that owners are familiar with the content of their insurance policies – in particular, with the responsibilities arising thereunder.

Animo compensandi purchase of a vessel sold by court-approved private sale
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 02 March 2016

In a recent court-approved private sale, the Maltese Civil Court unprecedentedly permitted a mortgagee to purchase a vessel animo compensandi, meaning that rather than paying the purchase price from its own pocket, the amount was offset against the existing debt owed to the mortgagee. This judgment is significant, as it offers mortgagees more flexible enforcement options.

Wrongful arrest of ships – part two
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 23 December 2015

While the arrest of vessels is an exceptionally effective and powerful tool which genuine creditors have every right to use, it is paramount that the rule of law is observed and the law's high standards are maintained. Otherwise, there is a risk of increased lawlessness. The Maltese courts have addressed arresting parties' failure to follow the law in several cases, taking immediate action to correct any misinformation.

Penalty proceedings following escape of arrested vessel
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 30 September 2015

A Maltese civil court recently considered whether the penalty proceedings under Article 865 of the Code of Organisation and Civil Procedure can be brought against a vessel in rem. The court found that such proceedings can be commenced only against the person or persons that removed the vessel from Maltese waters in violation of the court order, not against a vessel in rem.

Aviation finance and security interests in Malta: a new impetus
Fenech & Fenech Advocates
  • Aviation
  • Malta
  • 08 July 2015

Over the last few years, the government has sought to promote the development of the aviation sector through the introduction of legal and administrative infrastructure modelled on the common law system and international conventions, including the adoption of the Cape Town Convention, the creation of a dynamic aircraft and mortgage register and the introduction of comprehensive laws on trust.

Wrongful arrest of ships
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 06 May 2015

A recent case has highlighted a weakness in Maltese law in relation to the right to claim damages resulting from an illegal arrest. Despite finding that the arrest was illegal, the court stopped short of ordering reparations because it held that the defendants' failure to satisfy the criteria outlined in Article 742(D) Code of Organisation and Civil Procedure was not malicious, frivolous or vexatious and thus no damages could be sought.

Malta – logical choice for superyacht owners
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 15 April 2015

The third annual Opportunities in Superyachts Conference was recently held in Malta. Over the past eight years Malta has enjoyed success within the superyacht sector, steadily increasing the size of its registered fleet and the number of yachts which benefit from the solutions offered by the jurisdiction. As such, the conference largely focused on what Malta offers owners and operators of private and commercial yachts.

Court-approved private sales
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 18 March 2015

In 2006 the Organisation and Civil Procedure Code was radically overhauled in relation to the provisions governing Maltese enforcement mechanisms, among other things. The changes to enforcement mechanisms included the introduction of court-approved private sales, under which mortgagees can source private buyers at the highest possible agreed price and, on court approval, sell vessels free and unencumbered.

Bunkers excluded from judicial sale on basis of retention of title clause
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 11 February 2015

The Civil Court recently upheld a request to have bunkers supplied to the defendant vessel excluded from a court-approved private sale on the basis that retention of title clauses existed, which governed the supply of the bunkers. The decision demonstrates that the inclusion of retention of title clauses can help to mitigate any possible losses in relation to bunkers.

Malta – a reputable flag of choice
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 13 August 2014

With its centuries-old maritime tradition and as an EU member state, Malta has become the largest European maritime flag and also the seventh largest flag worldwide. Thanks to the unstinting efforts of the government and the maritime industry, Malta has developed into a reputable flag of choice and quality, which offers a wide array of international maritime services and fiscal incentives.

Authorities launch guidelines on tax treatment of charters
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 21 August 2013

Following similar announcements recently made by France and Italy, the Maltese authorities published the Guidelines for the Value Added Tax Treatment of Short-Term Yacht Chartering. The guidelines address situations in which a short-term charter of a yacht with a crew (or on a bareboat charter basis) is entered into between the owner or operator and the charterer for a consideration.

Failure to file sea protest correctly can scupper your case
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 10 July 2013

Following an incident at sea, the master of a ship can make a so-called 'sea protest' in which he or she can declare the facts of the incident as known to him or her. Under Maltese law, a sea protest tends to hold significant probative weight in subsequent settlement negotiations or litigation, since it is often taken as being a correct statement of facts. However, failure to submit a sea protest properly can prove detrimental.

New legislation introduces first scheme for private maritime security licensing
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 24 April 2013

Following the recent increase in attacks on vessels travelling in the vicinity of Somalia, demand has grown for private maritime security companies that can provide professional armed guards on board a vessel to assist in anti-piracy measures. Malta has therefore recently taken steps to regulate the licensing of such companies to ensure that they meet appropriate standards and employ quality personnel of high integrity.

Securing maritime claims: insolvency proceedings and in rem rights
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 29 August 2012

In a recent judgment the Maltese courts rejected a foreign liquidator's application to have a precautionary warrant of arrest lifted on the basis of the EU Insolvency Regulation. This judgment is to date the only judgment delivered by the Maltese courts in which the effects of the regulation on legal proceedings instituted in Malta to secure maritime claims in rem have been discussed.

Court further confirms rights of mortgagees under Maltese law
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 01 February 2012

A Maltese civil court recently further confirmed the rights of mortgagees granted by the law. Despite leaving a number of questions unanswered, this ruling should reassure international financiers of vessels registered under the Malta flag. Provided that the contracts into which they enter are in line with the provisions of the Merchant Shipping Act, financiers can rest assured that their rights will be fully upheld and safeguarded.

Court announces additional advantages for mortgagees of Maltese vessels
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 21 December 2011

Legal history was made recently when a Maltese civil court granted an application requesting approval of a private sale. Court-approved private sales are intended to address the respective disadvantages of private sales and judicial sales by auction. Notwithstanding that this remedy has been on the statute book since 2006, this case represented its first test.

Handling voyage charters in times of crisis
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 22 June 2011

Following the violence in Libya over the past weeks, numerous shipping companies have been operating round trip charter evacuations between Libya and Malta, mainly on the request of governments in Europe, Latin America and the Far East. While tragic in its humanitarian implications, such a crisis presents those with the requisite resources and expertise with a commercial reality that warrants attention.

Courts award record level of damages in Aframax tanker case
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 09 March 2011

In 2010 the Maltese courts issued their highest-ever damages award in a case involving a failure to transfer shares in a company that was the owner of a new Aframax tanker. An Italian company filed an action against a Monegasque company for breach of a promise to sell shares in a Maltese registered company which had been formed for the purposes of entering into a shipbuilding contract.

Key factors in the choice of appropriate jurisdiction for registering a superyacht
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • 07 July 2010

Recent uncertain economic times, together with an increasingly safety and security-sensitive environment, have instilled in owners a greater awareness of and sensitivity to the advantages that may be offered by a particular flag when choosing a jurisdiction for registering their superyacht. This update looks at the key factors that are playing a determinative role in leading owners to opt for the Maltese flag.

Flying the flag: Malta set to ratify Cape Town Convention
Fenech & Fenech Advocates
  • Aviation
  • Malta
  • 27 January 2010

In response to the recommendations of a legal group commissioned by the Ministry for Infrastructure, Transport and Communications, the Maltese government is proposing to ratify and implement the Cape Town Convention on International Interests in Mobile Equipment and the Aircraft Protocol thereto. Ratification of the convention will go some way towards making Malta a more attractive jurisdiction for aircraft registration.

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