Ship Arrests in Malta: A Comprehensive Guide to Precautionary and Executive Warrant
Introduction to Ship Arrest in Malta
Securing and enforcing international maritime claims is inherently challenging, especially where the debtor’s principal or only asset is a ship in continuous transit. Ship arrest in Malta is a legal remedy available to creditors wishing to secure or enforce their claims against such an asset.
Owing to a legislative overhaul carried out in the last decade, Malta offers an efficient legal framework for creditors wishing to arrest vessels located within the Maltese territorial or internal waters.
Under Maltese Law, ship arrests may be enforced within the relatively wide area of twelve nautical miles, whether the vessel is at sea or otherwise. This expansive jurisdiction coincides with navigational routes which pass through the centre of the Mediterranean, an area of high maritime traffic. Additionally, Malta’s maritime infrastructure and geographical location attract several vessels to its facilities, making vessel arrest in Malta a viable and strategic solution for many creditors.
Precautionary and Executive Warrants of Arrest of a Seagoing Vessel
The remedy of ship arrest in Malta is a two-tiered system which may be utilised as a precautionary measure or as an enforcement mechanism.
The Executive Warrant of Arrest allows a creditor who holds an executive title to enforce it against the vessel. Once the warrant is filed, the court may fix a term within which the debtor can settle the claim. In such cases, the warrant of arrest would be lifted and the arrested vessel would be released. Otherwise, the vessel under arrest would be sold through a judicial sale by auction, enabling the creditor to settle its claim from the sale proceeds.
On the other hand, Precautionary Warrants of Arrest may be invoked in security of a debt or claim amounting to not less than seven thousand Euros, before that claim is adjudicated by a court of law at the time of arrest.
The rationale behind a precautionary arrest in Malta is to prevent a vessel from departing Maltese waters, which could hinder the enforcement of a claim if other assets are insufficient. This measure may be utilised to secure claims in personam for matters actionable before a European Union Member State court, as detailed in Council Regulation (EC) No 44/2001. It is also available for claims in rem, this being a claim directed against the vessel itself.
Claims in rem that may lead to ship arrest are set out by Maltese law and correspond to the claims listed under the International Convention Relating to the Arrest of Sea-Going Ships 1952 and the International Convention on Arrest of Ships 1999, despite Malta not being a signatory.
Exceptions apply, including but not limitedly, vessels:
- Chartered in the service of the Maltese Government, vessels employed
- Employed in postal services by local or foreign governments, vessels designated as war vessels, or vessels which do not exceed
- Designated as warships
- Under ten meters in length.
Jurisdiction and Conditions for Precautionary Ship Arrest in Malta
Obtaining a precautionary warrant to arrest a vessel in Malta involves unique jurisdictional implications. In fact, once a vessel is arrested in Malta, the Maltese courts obtain jurisdiction over the related claim.
Claims in rem can be filed directly against the arrested vessel under two conditions:
- The person who would otherwise be liable in personam for that claim must have either been in possession or control of the vessel, or must have been the vessel’s owner or charterer when the claim arose.
- The same person must hold the position of owner, beneficial owner or bareboat charterer of the vessel at the time of arrest.
Additionally, under specific conditions, ship arrest may apply to ‘sister ship’ of the arrested vessel if the person described is the owner or beneficial owner in respect to the sister ship’s shares. This is extremely advantageous since it widens the scope of the local admiralty jurisdiction.
The Ship Arrest Procedure in Malta
Whether used precautionarily or to enforce an executive title, the process in Malta is relatively straightforward:
The applicant must file an application in court for the issuance of a warrant of arrest of a seagoing vessel, which application must be confirmed on oath if the warrant is issued precautionarily. The application must include evidence to substantiate the claim preliminarily in the case of precautionary warrants to arrest a vessel in Malta or evidence of the executive title enforced in the case of executive warrants to arrest a vessel in Malta.
Once the warrant is issued, this is served on local authorities and on the vessel’s master or agent. The relative notification is conducted either using a court-marshal or through a privately contracted service provider, duly licensed and authorised to conduct commercial operations within domestic territorial waters, expediting the process.
The entire process takes around 24 hours from when all documentation is available.
Upon issuance:
- Transport Malta, will deny the vessel clearance to leave Maltese internal and territorial waters.
- One would not be able to divest himself of the vessel in any way or to surrender any rights therein.
- All documentation and certification are seized and deposited in court.
An executive warrant of arrest may lead to the judicial sale of the vessel or to the vessel’s arrest being maintained in place until the debt held in virtue of an executive title is settled, while a precautionary warrant secures the claim pending legal proceedings.
Defending Ship Arrest in Malta
Those on the receiving end of a precautionary warrant for the arrest of a vessel may seek remedies under specific circumstances, including by:
- Requesting the issuance of counter warrant on the basis that the amount claimed is excessive, unreasonable or unjustifiable.
- Demonstrating that other adequate security is available
- Depositing sufficient security for the claim, interest and costs in court.
If the applicant does not follow through with an action on the substance of the claim within 20 days of the issuance of the warrant, one may initiate proceedings to demand the application of penalties on the basis of wrongful, illegal or malicious arrest.
For executive warrants, the debtor may request revocation it if there is a valid legal reason. This is interpreted rather strictly by Maltese Courts.
Conclusion
As global maritime trade expands, Malta’s ship arrest framework stands out by offering a robust legal infrastructure for creditors to secure and enforce maritime claims. It protects the operational interests of shipowners and charterers through a balanced judicial protest.
