The Court of Magistrates, presided over by Magistrate Gabriella Vella, on January 31, 2012, in the case “Stephen Bajada vs Dr Martin Fenech as curator to represent the vessel MY Drenec”, held, among other things, that an action in rem against a yacht did not become an action in personam simply because a request for curators was made. Mr Bajada was seeking payment for work undertaken on the vessel.

Stephen Bajada filed an action in rem against the yacht MY Drenec before the Court of Magistrates. He requested the court to condemn the yacht to pay him €8,989, representing the balance of a larger sum due to him for works and services rendered and for material supplied to the same yacht, with interests.

It was not correct to say that Malta law did not permit the appointment of curators

In his application, Mr Bajada asked the court to appoint curators to represent the yacht in the court proceedings. It was not known whether the captain of the yacht was in Malta or whether it had an agent in Malta.

By decree of October 5, 2011, a curator was appointed, to represent the yacht. Subsequently on September 27, 2011, Sark Ltd filed a note whereby it declared that, as owner, it wanted to continue the lawsuit in representation of the boat instead of the curator.

By decree of October 13, 2011, Sark Ltd continued the suit instead of the curator and submitted its reply.

In the first place, Sark Ltd contested that Mr Bajada’s legal action, as instituted, was not an action in rem. It was stated that the action was not filed directly against the boat but against curators in representation of the boat.

Sark Ltd disputed any liability and said that the sum of €8,989 was not due. It denied having a judicial relationship with Mr Bajada. It also raised objections to the quality of the works carried out by Mr Bajada. Allegedly, another contractor had to be engaged to replace the works which were completed by Mr Bajada.

It claimed that a Maltese company – the Mediterranean Well-being Co. Ltd – was appointed to act as project manager for the repairs to be carried out and it was this company which entered directly into contracts with various contractors involved in works on the vessel.

Sark Ltd pleaded that this project manager should be joined in the suit.

The court limited its consideration to the preliminary plea raised by Sark Ltd: whether Mr Bajada’s action was validly filed as an action in rem against the yacht.

Sark Ltd contended that article 929 of Chapter 12 of the Laws of Malta did not permit the appointment of curators to represent vessels in judicial proceedings.

On the other hand, Mr Bajada argued that his legal action was a valid action in rem against the vessel. The appointment of curators to represent the vessel, he said, was required on the basis of article 181A(3) and article 187(7) of Chapter 12 of the Laws of Malta, which provide:

“When a written pleading is to be filed by or against a ship or other vessel, it shall be sufficient if there is designated the name of such ship or other vessel, as the case may be, and it shall not be necessary to mention the name of any person to represent such ship or other vessel: Provided that the written pleadings mentioned in this sub-article shall be served in accordance with the provisions of article 187(7).”

“In the case of an action against a ship or other vessel, service shall be affected by the delivery of a copy of the pleading to the master thereof or any other person acting in that behalf or, in the absence of such persons, on the agent of the ship or other vessel, as the case may be, or in the absence of such persons and agent, on curators appointed by the court in terms of article 929: Provided that the court may also adopt such other measures as it may deem fit to bring the pleading to the notice of the person upon whom the same is to be served.”

On January 31, 2012, the Court of Magistrates rejected Sark Ltd’s preliminary plea.

The court considered the elements necessary for an action in rem in the light of recent case law re: “Valfracht Roso Line Ltd vs Dr L. Cassar Pullicino” (PA) dated April 10, 2003.

The essential elements were:

• A debt mentioned in article 742(B) of Chapter 12 of the Laws of Malta;

• Legal Action taken against the vessel;

• The presence of the vessel within the jurisdiction of the Maltese Courts;

• The retention of the vessel or a sufficient guarantee within the jurisdiction of the Maltese Courts, to permit the enforcement of the court’s decision.

The court noted that in this case an action in rem was filed directly against the vessel. The court maintained that the appointment of curators to represent the vessel in proceedings did not convert the legal action to an action in personam.

It was not correct to say that Maltese law did not permit the appointment of curators to represent a vessel in judicial proceedings. Even if no mention was made of curators in article 929, the appointment of curators to represent vessels was clearly provided for in article 187(7) of Chapter 12.

A vessel being an inanimate object as a defendant in judicial proceedings needed to be represented by a physical person: a master, agent or in their absence by a curator, appointed by the court in representation of the vessel. The appointment of a curator did not render the action to be in personam.

The importance of indicating the master, agent or curator as the case may be, in representation of the vessel in an action in rem was emphasised in the Court of Appeal judgement in ‘‘Dr Max Ganado noe vs Capt. S. Pizzimenti noe” dated November 30, 2011 where it was held that:

“It was not contested that an action in rem had to be filed against a vessel which was the defendant in the proceedings, without having to mention its owner. This action was separate from the action in personam.

“By virtue of the amendments to Chapter 12, it was sufficient to mention only the vessel in an action in rem. According to Chapter 234, vessels were deemed to be a particular class of immovable property, distinct from the property of its owners, in respect of claims and debts burdening the vessel.

“But vessels were inanimate objects. The law required that in action against a vessel, notice was served to a physical person. It was not enough to fix the notice on the vessel. A physical person had to prepare a defence for claims made against a vessel.”

The court said that, while under article 181A(3) of Chapter 12, in an action in rem, it was enough to designate the name of the ship without the need to mention the name of any person to represent the vessel, if a plaintiff did mention the name of the master, agent or curator, the nature of the in rem action did not change.

The fact that Sark Ltd appeared in the proceedings as owner did not change the legal nature of the proceedings as filed by Mr Bajada.

Under Maltese law, the legal nature of an action was determined by the way the application filed by the plaintiff was designated and by the way the claims were stated. The legal nature of an action could not be varied by an act or plea of the defendant or his representative.

For these reasons the court declared that the action filed by Mr Bajada was an action in rem and not an action in personam. It ordered that the proceedings had to be designated as follows

“Stephen Bajada vs Dr Martin Fenech appointed by decree dated October 5, 2011 as curator to represent the vessel MY Drenec, and by decree dated October 13, 2011 Sark Ltd continued the suit instead of the curator Dr Martin Fenech in representation of the vessel MY Drenec” wherever necessary in the records of these proceedings.

The court rejected the preliminary plea put forth by Sark Ltd in representation of the defendant vessel and ordered the continuation of the case.

All judicial costs relating to the preliminary plea and this judgement had to be borne by the vessel.