Fenech & Fenech Advocates has made legal history after successfully carrying out the first ever arrest of an aircraft in terms of new provisions of law providing for the precautionary arrest of aircraft in Malta.
On March 13, an Airbus A320-211 aircraft currently undergoing routine maintenance in Malta was arrested by order of the court as a precautionary measure to secure claims for payment of amounts due in relation to the lease of the aircraft.
Contacted by The Times Business, Nicolai Vella Falzon, a partner at Fenech & Fenech Advocates, said that this case is significant because it is the first time that an aircraft has been arrested in Malta “and this in terms of the new provisions of law introduced on October 1, 2010 by virtue of the Aircraft Registration Act (ARA)”.
The ARA brought into force some amendments to the Code of Organisation and Civil Procedure (COCP) introducing new provisions for the arrest of aircraft (both precautionary and executive). Previously, the COCP only provided for the arrest of sea going vessels but did not provide for the arrest of aircraft and accordingly traditional warrants (such as warrants of seizure and warrants of prohibitory injunction) had to be used in order to detain an aircraft.
Dr Vella Falzon said the case is also significant because the arrest was possible because the claimant in this case (the lessor of the aircraft) had its interest in the aircraft registered as an international security interest in the International Registry set up in terms of the Cape Town Convention which was ratified by Malta with effect from February 1, 2011. This is because as appears from the warrant, the claim was for an amount of less than €1,000,000 and in terms of the COCP a warrant of arrest cannot be obtained for claims below this amount unless the claimant’s interest is registered on the International Registry.
Dr Vella Falzon said the effect of a warrant of arrest of an aircraft is to seize the aircraft from the debtor (in this case it was the operator of the aircraft) and also to attach it in the hands of the authority where the aircraft is situated. In terms of the COCP once an aircraft is in Malta, Transport Malta is deemed for all intents and purposes of the warrant to be the “authority”, having in its hands or under its power or control the arrested aircraft.
Apart from the debtor, for the purposes of its proper execution the warrant was served upon Lufthansa Technik Malta (because the aircraft happened to be within its facilities at the time), Transport Malta (as the competent authority in terms of law), the Director of Civil Aviation (as a department within TM), the Commissioner of Police and Malta International Airport.
“The arrest was lifted (a counter-warrant was filed and served on all parties) after just two days following an agreement reached between the parties and the aircraft was allowed to depart,” Dr Vella Falzon said.
He added: “Notably, the court order arresting the aircraft was issued just a few hours after the application for the issue of the warrant was filed and was served on all relevant parties and thereby fully executed on the same date. This is relevant because the effectiveness of a warrant of arrest is highly dependent on the speed with which it can be obtained and executed. Since this was a first for Malta it was, in a sense, a test as to the efficacy of this warrant as an interim remedy for persons having security interests in aircraft coming to Malta.”