The US honoured its contract with Virtu Ferries for a chartered evacuation during the Libya conflict, including additional compensation for an “unavoidable delay”, former ambassador Douglas Kmiec recalls.
Virtu Ferries Ltd filed a suit in the First Hall of the Civil Court last week claiming €782,000 from the US government and its embassy in Malta.
The claim dates back to February 2011, when the US Embassy chartered the company to evacuate expats from Libya at the height of the revolution, which led to the violent death of dictator Muammar Gaddafi.
Virtu said it was contacted by Prof. Kmiec to charter a vessel to evacuate 500 to 550 people from Libya. It submitted that the time agreed in advance to load and unload passengers, known as laytime, was exceeded by 46 hours.
Making it clear he was no longer in a position to comment officially on behalf of the US, Prof. Kmiec said his recollection was that all parties involved understood that any delays were a result of “the chaos inspired by the violence of the Gaddafi regime in its vain effort to further suppress the legitimate desire of the Libyan people for freedom”.
Gaddafi loyalists delayed the efforts of the chartered vessel’s crew to set anchor and engaged in threats and intimidation, the former ambassador continued.
I hope this late-in-the-day claim does nothing to disparage the brave, humanitarian endeavour that Malta and the US completed in friendship
“This endangered the crew and slowed the safe loading and embarkation of the US Embassy personnel and the citizens of other nations we rescued that day, including, happily, a number of Maltese citizens,” he said.
To compound matters further, a gale force 5 winter storm prompted those directing the vessel’s operations to delay return to Malta out of maritime caution.
“Certainly, the ferry company representatives on board and in Malta had every reason to advise delay to protect its fine vessel from damage and they readily shared the US interest to first and foremost safeguard the passengers from harm,” Prof. Kmiec said, adding that he was full of admiration for the goodwill and judgement of the Virtu Ferries team.
While he firmly believed the US had honoured its commitments to the company, Prof. Kmiec said it was up to the courts to decide.
“As someone present at the time, I will simply observe the recent legal action seems less informed by a true accounting of history than the numerical after-the-fact considerations of accountants,” he said.
“It certainly would be my hope that this late-in-the-day claim for a liquidated sum on top of the agreed amount does nothing to disparage the brave, humanitarian endeavour that Malta and the US completed in friendship.”
In the maritime industry, once the allotted laytime elapses, the charterer would normally incur charges, technically known as demurrage, for the period it remains in possession of the vessel in question after the period agreed upon. It is a form of liquidated damages for breaching the contracted laytime.
Speaking as a professor of law, Prof. Kmiec said he would expect a fair evaluation of the facts to conclude liquidated sums that might be appropriate in an ordinary commercial lease had no relevance “to that dangerous time”.