22 - Kevin Dingli

Kevin Dingli Legal implications arising from the Decision of the Maltese Court of Appeal in the Bright Star (ex Trading Fabrizia) case - a case for the establishment of an Admiralty Court in Malta, for the reconsideration of according executive title status to the Maltese ship mortgage and for the introduction of a Convention on the International Recognition of Judicial Sales of Ships.

Dr Kevin F. Dingli is the Managing Partner of Dingli & Dingli Law Firm. he graduated as Doctor of Laws from the University of Malta in 1981 and undertook postgraduate studies in shipping law at University College London, obtaining a Master of Laws with distinction in 1982. He has practiced extensively in the maritime law field over the past 38 years. He is a former President of the Malta Shipowners’ Association as well as a former Vice-President of the Malta Maritime Law Association. He has delivered presentations in various fora both locally and overseas, and was involved in the drafting of important amendments to the Merchant Shipping Act in relation to mortgages as well as to the Code of Organisation and Civil Procedure in relation to ship arrest. Amongst other publications, Dr Dingli co-authors the Malta section of ‘Getting the Deal Through Shipping’, ‘Getting the Deal Through Ship Financing’ as well as of ‘Ship Arrests in Practice’. He is a Deputy Registrar of the International Merchant Maritime Registry of Belize as well as of the Jamaica Ship Registry.

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he Maltese Ship Registry, being the largest in the European Union and ranking the sixth largest worldwide accounting for 110,000,000 deadweight tonnage 1, owes much of its success to the great level of legislative protection which our Merchant Shipping Act2 in combination with the Code of Organisation and Civil Procedure3 offers to ship financiers, thereby encouraging them to support the Malta flag as the shipowner’s flag of choice for his ship.

In particular, as part of the security package sought by them in consideration of making facilities available to a shipowner, such financiers would invariably demand that a mortgage is executed and registered in their favour on the particular or on a related Maltese ship.

Legislative protection alone is however not enough, because ultimately no matter how convinced one might be that the position at law is securely cast in stone, much will also depend upon judicial interpretation and therefore on the extent to which the financier’s standing is backed by the Courts.

In any event the mortgagee’s rights are not necessarily absolute, because as was for instance held by Brandon J in the ‘MYRTO’4, if the ship is employed under a charter-party in such a manner as not to impair the security of the mortgagee and the owner is both able and willing to perform such contract, then the mortgagee is not entitled to interfere with the performance of such contract by exercising his rights under a mortgage whether by taking possession or selling or arresting the ship in an action in rem.

Malta has not had a dedicated Admiralty Court for many a long year, in fact not since 1892, when the jurisdiction hitherto exercised by the Vice Admiralty Court established in 1863 was transferred initially to the Commercial Court5 and subsequently, on the abolition of that court in 19956, to the First Hall of the Civil Court. This notwithstanding, the various judges presiding over the Commercial Court and today the First Hall of the Civil Court, though many a time unable to boast of any academic or practical specialisation in the field of maritime law prior to their elevation to the Bench, have generally succeeded 1 2 3 4 5 1863.

6

UK Department for Transport – Shipping Fleet Statistics : 2018.

Merchant Shipping Act, Chapter 234 of the Laws of Malta.

Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta.

[1977] 2 Lloyd’s Rep. 243.

In virtue of the Imperial Parliament statute entitled The Vice-Admiralty Courts Act In virtue of Act XXIV of 1995.

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in applying relevant principles of maritime law correctly, thereby upholding the system in spite of all difficulties.

However, one particular decision recently handed down by our Court of Appeal no less, has to my mind seriously questioned whether we are being sufficiently well-served by the current state of play, and re-opened the discussion as to whether it is not high time for Malta to re-introduce a dedicated and specialised Admiralty Court.

This concerned the bulk carrier Bright Star (formerly named Trading Fabrizia) (the ‘Ship’) which until 5 June 2017, when its registry was closed by the Registrar-General of Shipping and Seamen in Malta7, had been entered in the Maltese Ship Registry and had a mortgage (the ‘Mortgage’) registered against it in favour of an Italian company by the name of Jebmed S.r.l. (the ‘Mortgagee’), also entered in the same Registry. The law provides that upon such closure of registry as directed by the Registrar General, the registry of the particular ship shall be considered closed except so far as relates to any unsatisfied mortgages or privileges entered therein.

The special action8 was instituted against the Mortgagee by the Ship itself as represented by its new owners Bluefin Marine Limited (the ‘New Shipowner’) in whose favour legal title to the Ship has been adjudicated and transferred in virtue of a judicial sale of the same Ship in Jamaica under the authority of the competent Jamaican Court9. Through this action, the Ship sought to revoke an Executive Warrant of Arrest of Sea Vessels which the Mortgagee had issued against it on the 19 June 2018. This pursuant to the 7 In virtue of the powers vested in the Registrar-General to direct closure of registry of a ship under Article 29 of the Merchant Shipping Act for any of the reasons indicated therein, after having given the registered owner and any registered mortgagee notice in writing of his intentions to do so unless the cause for such closure is remedied within the period of one month.

8 Rikors Nru 653/2018 JRM fl-atti tal-mandat esekuttiv ta’ arrest ta’ bċejjeċ tal-baħar numru 998/2018 fl-ismijiet : Marlon Borġ bħala mandatarju f’isem is-soċjeta’ estera Jebmed S.r.l.

–v- M.V. Bright Star ġa’ M.V. Trading Fabrizia bin-numru tal-I.M.O. 9481960 – determined by the Court of Appeal on 8 February 2019.

9 Although it was observed by the First Hall of the Civil Court that the proceedings were instituted by the Ship itself, the Ship was in reality represented by the New Shipowner because although an action in rem is brought against the ship concerned, yet any embracing of the personality theory was forever done away with by our Courts since the first “Poker” case (Advocate Kevin F. Dingli noe vs Sebastiano Pizzimenti noe., determined by the First Hall of the Civil Court on 11 July 2001), where it was held that such an action is effectively directed against the owner of the ship. The procedural theory does not admit of a ship having a separate and distinct legal personality from that of its owners.

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provisions of Article 281 of the Code of Organisation and Civil Procedure10 which allows the person against whom an executive act has been issued to make an application to the court issuing the executive act concerned praying that the same executive act be revoked for any reason valid at law.

In its Decree on the aforementioned Application delivered on the 12 July 2018, the First Hall of the Civil Court rejected the demands of the Ship essentially on procedural grounds which go beyond the scope of this juristic article, but of particular note, the Court very correctly held that it was not open to an applicant acting under the special provisions of Article 281 of the Code of Organisation and Civil Procedure to seek to impugn the validity of the respondent’s executive title, for which purpose separate ad hoc proceedings were required to be instituted in the ordinary manner.

The Ship entered an appeal from this decree, and it is precisely the decision delivered by the Court of Appeal in regard to this appeal which is of academic interest in the field of maritime law.

By way of further factual background to the case, prior to her aforementioned arrest in Malta, the Ship had previously been in Jamaica where she had been arrested both by the Mortgagee, as well as by other maritime creditors. The Mortgagee had also instituted an action in rem on the merits of its Mortgage claim before the competent Court in Jamaica, in regard to which Capitalease S.p.A. as registered owner at the time (the ‘Shipowner’) had entered a defence and a counterclaim seeking damages for wrongful arrest. After having invoked the jurisdiction of the Jamaican Courts first to arrest, and then to sell the Ship, the Mortgagee then appears to have had a change of heart and in fact petitioned the same courts for a declaration of entitlement to possession as mortgagee under the Mortgage, thereby seeking to vary an order for appraisement and judicial sale which had already been issued by the Jamaican Courts. This petition was in fact rejected by the Jamaican Courts as such request, if upheld, would prejudice the position of the Shipowner which had protested the lawfulness of the arrest of the Ship by the Mortgagee and had counterclaimed against it, a matter which could only be determined following a trial on the merits.

Furthermore, a declaratory judgment by the Maltese Courts11 upholding the 10 Chapter 12 of the Laws of Malta, with particular reference to sub-section (1) of Article 281 thereof dealing with how executive acts may be impugned, whether in whole or in part.

11 Rikors Ġuramentat Nru 247/2017 Dr Ann Fenech kif debitament awtorizzata bħala mandatarja għan-nom u in rappreżentanza tas-soċjeta’ estera Jebmed Srl –vs – Capitalease S.p.A.,

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Mortgagee’s statutory entitlement to take possession of the mortgaged Ship ‘to the extent that this is possible in the circumstances of the case’, handed down at a time when the Ship was already under arrest and therefore under the authority of the Jamaican courts, was held not to be enforceable at common law or by any relevant statutory provisions in the jurisdiction of Jamaica and was therefore discarded by the Jamaican Courts.

On an aside from the main focus of this article, considerable surprise may be expressed even in as far as concerns the aforementioned latter judgment. This is because, apart from the fact that the exercise of the Mortgagee’s statutory rights12 qua mortgagee inter alia to take possession of the Ship absolutely did not require a judicial endorsement, so that the action was on the very face of it frivolous and vexatious to start off with; in the opinion of the writer, the Maltese Courts were ab initio bereft of any jurisdiction to entertain the action. The Ship was not physically present within Maltese territorial waters and therefore, within the jurisdiction of the Maltese Courts. On the very contrary at the relevant time, the Ship was not only physically to be found within the jurisdiction of another sovereign state, namely Jamaica, but as an arrested ship was also under the authority of the competent courts of that other sovereign state. The fact that the Mortgage was a Maltese registered mortgage ought not to have had any bearing at all on this reality. Nevertheless, the Court apparently had no qualms in accepting to hear the case, even though the qualification which it then made in its judgment upholding the Mortgagee’s demand to take possession of the Ship ‘to the extent that this is possible in the circumstances of the case’ is in itself revealing of certain doubts which the Court itself seems to have been grappling with when coming to issue its judgment on the matter.

As is customary in international maritime law when a ship is sold under the authority of a competent court in the jurisdiction where she lies and is arrested at the instance of unpaid maritime creditors, the Ship was adjudicated in favour of the New Shipowner by the competent Court in Jamaica, free from all encumbrances and the interest of the Mortgagee passed on to the proceeds of sale – USD10,600,000 at that – which were duly paid up and deposited in the Court Registry of Jamaica. In fact on 16 January 2018 the Jamaican Court issued in favour of the New Shipowner: rappreżentata lokalment mir-resident aġent tagħha is-soċjeta’ Maltija Camco Limited: determined by the First Hall of the Civil Court on the 1 June 2017.

12 The rights of the mortgagee are listed in Article 42 of the Merchant Shipping Act – Chapter 234 of the Laws of Malta.

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(i) a Bill of Sale stating that ‘the ship above particularly described has been freed from all liens and encumbrances and debts whatsoever’, as well as (ii) a Certificate of Sale stating that ‘the ship was sold to Bluefin Marine Limited … free of all mortgages, liens and encumbrances whatsoever’.

This notwithstanding, at a later point in time whilst the Ship now renamed Bright Star and registered in the ownership of the New Shipowner under the laws of Liberia stopped temporarily in Maltese waters in order to take on bunkers during the course of her employment on a voyage under charterparty from a port in Russia to a port in Venezuela, she was arrested by the Mortgagee in virtue of the aforementioned Executive Warrant of Arrest of Sea Vessels. The Mortgagee asserted to be still in possession of its Maltese Mortgage which had been rendered executable in virtue of a judicial letter which the Mortgagee had filed against the Shipowner before the First Hall of the Civil Court on the 23 February 2017, soon after the Ship had been arrested in Jamaica.

Maltese law specifically provides that ‘…where a ship has been sold pursuant to an order or with the approval of a competent court within whose jurisdiction the vessel was at the time of the sale, the interest of the mortgagees as well as of any other creditor in the ship shall pass on to the proceeds of the sale of the ship’13.

Furthermore, in another related context, where the purchaser of a ship is not a person who is qualified to own a Maltese ship, upon obtaining knowledge or on being given notice of such a fact and, in the case of a sale pursuant to an order or with the approval of a competent court, upon receiving copies of the proceedings of the sale certified to his satisfaction, ‘the registrar shall make an entry thereof in the register and the register of the ship shall be considered as closed except in so far as relates to any unsatisfied mortgages entered therein and where the ship is sold free from encumbrances, the interest of any registered mortgagees or any other creditors shall pass on to the proceeds of the sale of the ship’14.

13 Merchant Shipping Act, Chapter 234 of the Laws of Malta, Article 37D(1) second proviso.

14 Ibid, Article 28A dealing with closure of registry of a Maltese ship on its sale pursuant to a court sale or a sale by a mortgagee in possession.

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This notwithstanding, in virtue of a decision delivered on 8 February 2019, the Court of Appeal whilst upholding the entitlement of the Ship to question the continued existence, as against the validity of the Mortgagee’s executive title, refused to recognise that the legal effect of a judicial sale of the Ship under the authority of the competent Court in Jamaica was to confer valid legal title in the hands of the New Shipowner as purchaser, free from all encumbrances. The Court of Appeal consequently upheld the validity of the Executive Warrant of Arrest of Sea Vessels in respect of the Ship on grounds that according to it the Mortgagee was still in possession of a valid executable executive title.

The Court of Appeal reached this decision on the grounds that in its view, the aforementioned legislative disposition contained an implicit condition to the effect that in order for a judicial sale to clear a ship from a mortgage, it must be shown that the ‘interest’ of the particular mortgagee actually passed on to the proceeds of sale. Furthermore, the Court of Appeal went on to hold that the interest of the Mortgagee did not pass on to the proceeds of sale of the Ship since: (i) under Jamaican law, the Mortgage was not immediately enforceable as an executive title but the Mortgagee was required to have its claim upheld on the merits before the Jamaican Courts, where the Mortgage itself was only of probative value; and (ii) according to the Court of Appeal, the Mortgage did not enjoy any cause of preference under Jamaican law.

The Court of Appeal was factually incorrect to assert that the Mortgage did not give rise to any cause of preference under Jamaican law. In point of fact, relying on the landmark decision of the Privy Council in the ‘HALCYON ISLE’15, the Jamaican Courts would have applied the established conflict of laws rule to the effect that questions of ranking priority are matters to be determined by Jamaican law as the lex fori16; and under the Shipping Act 15 [1980] 2 Lloyd’s Rep. 325 at p. 330.

16 But any question as to who is entitled to bring a particular kind of proceeding in an English Court, like questions of priorities in distribution of a fund, is a question of jurisdiction. It too under English rules of conflict of laws falls to be decided by English law as the lex fori. Their Lordships therefore concluded that, in principle, the question as to the right to proceed in rem against a ship as well as the priorities in the distribution between competing claimants of the proceeds of sale in an action in rem in the High Court of Singapore falls to be determined by the lex fori, as if the

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of Jamaica (1998), a mortgage enjoys an exceptionally high priority ranking only subsequently to claims for wages and masters’ disbursements made on account of the ship17.

Unfortunately, no proof of Jamaican law on the cause of preference issue was produced before the Maltese Court either by the Mortgagee (on whom rested the onus probandi certainly in this respect to positively demonstrate that the implicit condition referred to by the Court of Appeal had not in fact been satisfied) or for that matter by the New Shipowner (who ought to have had every interest to demonstrate to the Court that the interest of the Mortgagee had in fact passed on to the proceeds of sale), even though it was still arguable that in the absence of proof of foreign law on this particular point the Maltese courts ought to have assumed that Jamaican law was equivalent to Maltese law and consequently assumed that the Mortgage did in fact enjoy a cause of preference under Jamaican law.

Quite apart from that, however, the main point of contention in regard to the decision of the Court of Appeal lay in the fact that the Court failed to apply established principles of private international law to the effect that all issues relating to the enforcement of rights in a foreign jurisdiction are procedural matters which as such are exclusively reserved to the law of that jurisdiction as the lex fori.

It is a unique feature of Maltese law, not replicated anywhere else to the author’s knowledge, that a mortgage enjoys the status of an executive title18 and is therefore equated to a final decision of a Court of Law, even though it first requires to be rendered executable by filing a judicial demand against the mortgagor19 accompanied as appropriate by an affivadit20. Maltese law events that give rise to the claim had occurred in Singapore.

17 The Shipping Act, 1998, (Jamaica), Article 84A (Priority of Registered Mortgages), in relation to Article 80 (Maritime Liens).

18 Merchant Shipping Act, Chapter 234 of the Laws of Malta, Article 42(2).

A registered mortgage shall be deemed to be an executive title for the purposes of article 253 of the Code of Organization and Civil Procedure: (a) where the obligation it secures is a debt certain liquidated and due and not consisting in the performance of an act; or (b) where a maximum sum secured thereby is expressly stated in the instrument creating the security and such figure is recorded in the register for public notice.

19 Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, article 256(2).

20 Merchant Shipping Act, Chapter 234 of the Laws of Malta, article 42(4).

In connection with the enforcement of any mortgage, not being a mortgage contemplated in sub-article (2), for the purpose of determining the amount certain liquidated and due or the

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cannot however expect that other jurisdictions equally elevate a mortgage to that level; and in compelling a mortgagee to substantiate his claim in an action in rem, as would be the case with any other maritime creditor enjoying a special privilege under our own law21, that is not to say that the law of other jurisdictions does not confer a cause of preference on a mortgage in procedures for the ranking of creditors on the resulting fund deposited in Court in the wake of a judicial sale of the ship.

Furthermore, because as was mentioned above it is really a unique feature of Maltese law that a mortgage enjoys the status of an executive title, the interpretation of the Court of Appeal to the effect that the second proviso to sub-article (1) of Article 37D of the Merchant Shipping Act contains within it an implicit condition to the effect that in order for a judicial sale to clear a ship from a registered mortgage, it must not only be shown that the ‘interest’ of the mortgagee passed on to the proceeds of sale, but it must also be shown that such interest also includes the recognition of the mortgage concerned as equating to an executive title under the laws of the jurisdiction of the competent court under whose authority the ship was sold in a judicial sale, is particularly worrying for other reasons.

If this interpretation continues to be endorsed, then serious problems might arise in the future when a foreign mortgagee comes to enforce its foreign mortgage as against a foreign flagged ship, physically present within Maltese territorial waters.

Under Maltese law, a foreign mortgage shall be recognised as a mortgage with the status and all the rights and powers specified in the Merchant Shipping Act, notwithstanding the fact that it is not entered over a registered ship if inter alia: (d) such mortgage is granted a preferential and generally equivalent status as a mortgage under this Act under the laws of the country where the mortgage is registered22. actual sum due when the mortgage secures a future debt within an expressly stated maximum, in connection with any judicial sale of a ship, the mortgagee shall specify the sum due at the time of enforcement by means of an affidavit served on the mortgagor.

21 Namely under Article 50 of the Merchant Shipping Act (Chapter 234 of the Laws of Malta) regulating special privileges.

22 Merchant Shipping Act, Chapter 234 of the Laws of Malta, article 49.– dealing with the recognition of foreign mortgages.

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One of the most important rights accorded to a mortgagee under Article 42 of the Merchant Shipping Act is undoubtedly to the effect that a mortgage registered under the provisions of the Merchant Shipping Act and therefore a mortgage registered against a Maltese registered ship, enjoys ex lege the status of an executive title for the purposes of Article 253 of the Code of Organisation and Civil Procedure.

From all of this and on the strength of the ratio decidendi of the Court of Appeal in the decision under critical review in this article, a very dangerous argument could very logically and easily flow to the effect that, since the foreign mortgage sought to be enforced in Malta does not constitute an executive title under its own constitutive foreign law, ergo its constitutive law does not grant it a preferential and generally equivalent status as a mortgage under Maltese law, with the disastrous consequence that it therefore cannot be recognised by the Maltese Courts ‘as a mortgage with the status and with the rights and powers specified’ in the Merchant Shipping Act. In the event that, for the reasons postulated above, a foreign mortgage not come to be recognised as a mortgage, ‘with the status and all the rights and powers specified in the Merchant Shipping Act’ and therefore as constituting an executive title for the purposes of Article 253 of the Code of Organisation and Civil Procedure, then a foreign mortgagee wishing to enforce its mortgage on a foreign flagged ship finding itself within the territorial jurisdiction of the Maltese Courts would have no other option open to it but to file a Precautionary Warrant of Arrest of Sea Vessels and to institute in support thereof within the prescribed period of twenty (20) days an action in rem against that ship on the basis of Article 742B(c) of the Code of Organisation and Civil Procedure setting out the Jurisdiction in rem of the Maltese Courts against ships or vessels23. Thus, it would be compelled to advance and prove its claim on the merits, with a view to securing in its favour an enforceable executive title prior to having recourse to the relevant executive acts culminating in the judicial sale by auction of the ship, just like any other maritime creditor whether privileged or otherwise would have to do.

Although Malta is not a signatory to the 1993 Geneva Convention on 23 Save as otherwise expressly provided by law, the civil courts of Malta shall have jurisdiction in rem against ships or vessels in the following maritime claims: ... (c) any claim in respect of a mortgage, hypothec or charge on a ship or on any share therein.

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Maritime Liens and Mortgages24, one would of course at least have to hope that for purposes of upholding an action in rem pursuant to such foreign mortgages, the Maltese Courts would still accord recognition to the principle that foreign mortgages on seagoing vessels are to be recognised and enforceable in Malta provided such mortgages have been effected and registered in a public registry in accordance with the law of the State in which the ship concerned is registered25; and that procedures for the enforcement of such foreign mortgages are to be regulated by Maltese law as the law of the State where enforcement takes place26.

One would also have to expect that the Maltese Courts would furthermore still allow such foreign mortgage claim to rank on the resulting proceeds of a judicial sale by auction in accordance with the ranking of maritime creditors provisions contained in the Merchant Shipping Act, which are in themselves to be considered as being separate and distinct from the ‘status, rights and powers’ accorded to a mortgage under the same Act. This also in full respect of the conflict of laws principle enunciated in the ‘Halcyon Isle’ to the effect that issues relating to ranking of creditors are procedural in nature and are therefore matters for Maltese law as the lex fori to attend to.

To hold otherwise would not only be stretching things a touch too far, but would actually be to contemplate Armageddon and total oblivion of Malta as an attractive jurisdiction for ship arrest in the eyes of foreign mortgagees.

In conclusion, and as was held in the ‘Acrux’27: If it became the practice of the Courts of one country not to recognise a valid title given by a competent Court of another country, there would be chaos. It was bound to redound to the prejudice of those who give credit to ships.

It is in the interest of the shipowner whose ship has been sold by judicial auction, as well as in the interest of all maritime creditors having a claim against that ship, mortgagees included, that the sale of the ship concerned, 24 The 1993 Geneva Convention on Maritime Liens and Mortgages replaces the 1926 Brussels Convention on the Unification of Rules Relating to Maritime Liens and Mortgages.

25 This principle is enshrined in Article 1 of the Convention dealing with recognition and enforcement of mortgages, “hypothèques” and charges.

26 This principle is enshrined in Article 2 of the Convention dealing with ranking and effects of mortgages, “hypothèques” and charges.

27 [1962] 1 Lloyd’s Rep. 405.

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obtains the highest possible bid price. Exposing a bona fide buyer to the risk of challenge to his free and unencumbered legal title, whether in the courts of the ship’s previous flag state, or in any other court, would gravely prejudice those very interests.

Perhaps in the over-zealousness of our Courts to protect the position of the mortgagee, practically at all costs, we have now gone a step too far, actually rendering a disservice unwittingly though that might be; and it might also be opportune to reconsider whether in equating a Maltese mortgage to an executive title, we have not elevated the mortgage to such a high pedestal as to give rise to extremely serious conflict of laws conundrums.

By way of comprehensive rapportage, some hope of recovery from the shockwaves generated by the Court of Appeal’s decision may yet lie in the separate ad hoc proceedings which the New Shipowner together with the Ship filed against the Mortgagee on the 14 August 2018 before the First Hall of the Civil Court28. In that action, the Applicants are praying inter alia that the Executive Warrant of Arrest concerned be declared to be unenforceable against the Ship in terms of Maltese law, including the provisions of Article 37D of the Merchant Shipping Act which we have considered hereinabove 29.

The Mortgagee is rebutting this demand inter alia on the basis that the decision of the Court of Appeal reviewed in this Article constitutes a res judicata, but this plea was rejected in virtue of a preliminary judgment handed down by the First Hall of the Civil Court on the 14 January 2020. The Court found that although the decision of the Court of Appeal was in the nature of a definitive decree, as distinct from an interlocutory one, proceedings under Article 281 of the Code of Organisation and Civil Procedure are summary in nature, intended only to investigate whether there was any irregularity or defect in the executive act and not in the executive title itself on the basis of which such executive act was issued. Although it was conceded that in its deliberations the Court of Appeal had admittedly gone beyond what was strictly required of it for the purpose of those particular proceedings, yet the Court considered that in the decisive part of its decree the Court of Appeal did not pronounce itself on the merits of whether the executive warrant of 28 Rikors Ġuramantat Numru 846/2018/MCH in the names Dr. Ann Fenech kif debitament awtorizzata bħala mandatarja għan-nom u in rappresentanza tas-soċjeta’ estera Bluefin Marine Ltd. reġistrata l-Liberia u tal-bastiment ‘MV Bright Star’ ġja’ ‘Trading Fabrizia’ bin-numru tal-IMO 9481960 –vs- is-soċjeta’ estera Jebmed SRL reġistrata ġewwa l-Italja.

29 At the time of submission for publication, these proceedings are still pending before the First Hall of the Civil Court which has however in virtue of a Decree given on the 26th June 2019 accepted to entertain the case on its merits.

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arrest was null, illegal or unenforceable in view of the provisions of Article 37D of the Merchant Shipping Act; and even had it done so it would have exceeded the parameters of Article 281 of the Code of Organisation and Civil Procedure.

Although the ‘Bright Star’ saga seemingly drags on interminably, yet should the rejection of the tricky res judicata plea be finally confirmed by the Court of Appeal, if only to rectify an intolerable injustice which would otherwise result30, our Courts would undoubtedly be presented with a golden opportunity they cannot afford to miss of properly interpreting and applying the law on this fundamentally important issue.

Paradoxically, however, the decision of the Court of Appeal in the ‘Bright Star’ case should serve as the casus belli for the urgent introduction of a convention on the international recognition of judicial sales of ships beyond that, which is already provided for in the above referred to Geneva Convention on Maritime Liens and Mortgages31 – a cause which has been actively spearheaded by the Comite’ Maritime International and is now in the hands of UNCITRAL.

30 The legal maxim res judicata pro veritate habetur is based on practical considerations seeking to avoid interminable disputes and does not have an absolute foundation in law. Thus it may possibly be set aside by a Court in appropriate cases where an intolerable injustice would otherwise be suffered (vide Grazio Mercieca LL.D. “Mezzi Straordinarji ta’ Impunjazzjoni tas-Sentenzi” pgs. 3 -4).

31 Vide Article 12 of the Convention dealing with the effects of forced sale.

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