On the 18th of December 2019, the provisions found in the Code of Organisation and Civil Procedure relating to the arrest of ships were formally amended. These amendments have introduced a new mechanism whereby the party issuing the warrant may nominate (in the arrest application) any natural or legal person responsible to affect service of the warrant onto the vessel and not solely depend on the executive officers of the courts (the court marshals). Act XXXI of 2019 thus created a new method on how a warrant of arrest may be served.
The Chamber of Advocates together with the assistance of the Malta Maritime Law Association have recently published practical guidelines relating to such amendments in order to assist practitioners with the proper implementation and use of such procedure as amended.
Below are some of the key points (including clarifications) as outlined in the guidelines:
Responsibilities of the Executive Officers of the Courts.
Has there been a shift in the responsibilities of the Executive Officers of the Courts?
- The responsibilities of the executive officers of the Courts haven't changed. They shall remain responsible for affecting service on the authority for Transport in Malta (Transport Malta) and other local authorities.
- The only additional responsibility on the executive officers of the Courts are now to affect service on the Nominated Person (as explained above) who will then be tasked with serving the warrant of arrest on vessel.
Who can act as nominated person?
- The nominated person may be any service provider or any natural person including any Executive officer of the Courts acting in his own capacity or the party's lawyer. The nominated person should be well-suited, knowledgeable, appropriate, and properly briefed by the practitioner to carry out the role expected from him/her.
Importance of Acceptance
- It shall be the responsibility of the party issuing the warrant to ensure, from beforehand, that the nominated person has accepted to affect service on the vessel and has agree on the remuneration. When filing an application, the party issuing the warrant shall confirm on oath that the Nominated Person has accepted to carry out this mandate.
When Conveyance is Necessary.
- When transportation is required to take the Nominated Person to a vessel, they should only engage commercial vessel operators which are duly licensed and authorised by the Authority for Transport;
When on board the vessel
What is the nominated person expected to do?
- Upon boarding the vessel, the nominated person will be expected to serve an official copy of the Warrant of Arrest on the Vessel's highest ranking officer (nominally the Master), briefly explain to that officer that the vessel is under arrest and demand that officer to hand over the ship's documentation and certification as will be explained below.
To whom must the warrant be served?
- According to the COCP, the warrant must be served on the person whose ship or vessel is arrested, the master or other person in charge of such ship or vessel, or the agent of such ship or vessel.
- The nominated person must also take note of the name of the Vessel's highest-ranking officer (nominally the Master) present on the vessel to whom the Warrant of Arrest was served.
What documentation are to be seized by the Nominated Person?
- The Certificate of Registry of the Vessel;
- The International Load Line Certificate, where applicable;
- Cargo Ship Safety Radio Certificate, where applicable.
How long may the nominated person retain the ceased documents?
- The nominated person has 1 day to return the documents he/she has seized back to the registrar of Courts.
Notification to the Traffic Management Unit (TMU- Port Operations)
Notification to the Vessel Traffic Services (VTS - commonly known as Turretta)
- Warrants of Arrest are handled by the TMU and the VTS of the Authority for Transport in Malta, which are both located in Marsa. All Warrants and Counter Warrants are to be notified to the Authority at its Marsa offices.
Other beneficial recommendations
- Parties should submit with their warrant a map/chart indicating the location within Maltese waters of the vessel in question especially when such is on anchorage;
- Parties should issue a translated version of the warrant in English in order to better ensure that the master is made aware of the fact that the vessel has been arrested.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.