The Court needs to be satisfied that a precautionary warrant was issued to safeguard a legitimate claim and was not issued because of abuse of the procedure.
This was held in a decree given by Judge Miriam Hayman presiding over the First Hall of the Civil Court in the acts of the warrant of arrest of a vessel, lawyer Cedric Mifsud representing Degroma Trading Inc. of Panama vs the vessel Diamond-T.
The warrant was issued following a claim on the title of ownership of the vessel. Degroma Trading claimed that it was the owner of the vessel following an agreement signed on 29 December 2022 and it had paid the price to another company Dreter 2 Limited. The Applicant company Degroma Trading had not taken possession of the vessel. The vessel Diamond-T claimed that it was sold to another company Goldfinch Shipping 2 Limited, which is not a Maltese company.
It claimed that according to Article 180(1)(a) of the Code of Organisation and Civil Procedure all acts must be filed in court by a representative. Therefore, the application to revoke the warrant of arrest of the vessel is null and void.
The vessel claimed that since 21 February 2024, the same vessel was sold to Goldfinch Shipping 2 Limited and there is no juridical relationship between both companies. Therefore, the action should be different and not action in rem but in personam.
On the issue of representation, lawyers to Goldfinch Shipping 2 Limited showed that they received a power of attorney a day before the application to revoke the warrant was filed. This satisfied the requirements of Article 180(1)(a) of the Code of Organisation and Civil Procedure (COCP).
The application to revoke the warrant was based on Article 836(1)(b)(d) and (f) of the COCP. This article reads:
“836. (1) Without prejudice to any other right under this or any other law, the person against whom any precautionary act has been issued, may make an application to the court issuing the precautionary act, or, if a cause has been instituted, may make an application to the court hearing such cause, praying that the precautionary act be revoked, either totally or partially, on any of the following grounds
(b) that any one of the conditions requested by law for the issue of the precautionary act does not in fact subsist;
(d) if it is shown that the amount claimed is not prima facie justified or is excessive; or
(f) if it is shown that in the circumstances it would be unreasonable to maintain in force the precautionary actin whole or in part, or that the precautionary act in whole or in part is no longer necessary or justifiable”
In dealing with warrants, the Court should consider the warrant on a prima facie basis, since it has to be followed by a court case, which will delve into the issues more deeply. This was pointed out in Visa Investments Limited vs Byle Engineering Co Limited decided on 7 February 2001. Furthermore, in another judgement Paul Hili et vs Dr Joselle Farrugia noe et by the Commercial Court on 23 June 1994, held that the requisites of a warrant should be seen in the acts of the warrant. The court must see whether the warrant was issued abusively.
In this case, the bill of sale of Diamond T stated that Dreter 2 Limited transferred 100% of the shares to Goldfinch Shipping 2 Limited. On the other hand, another document was presented. It was a bareboat charter agreement between Dreter 2 Limited and Dragoma Trading, which includes a “purchase option agreement” in favour of the latter company. This was signed on 29 December 2022, well before the bill of sale which was presented in court.
The Court then quoted from Stewart Desmond Standby vs Therese Mangion Galea decided on 29 July 2005 wherein the court held that for a precautionary warrant to be issued the party asking for it must have a claim of a right against the person against whom the warrant is being issued. The precautionary warrant must also contain the requisites listed in the law and the responsibility of the warrant is of the party who asked for it to be issued.
The Vessel held that this should not be an action in rem but an action in personam because the vessel no longer belongs to Dreter 2 Limited. Degroma disagreed and quoted Article 742B(a) of the COCP, which lists the actions in rem and particularly any claim on the possession and ownership of the vessel. However, Article 742D, which excludes Article 742B(a) of the COCP. In fact, the court quotes paragraph (b) of Article 742D which states:
“…any other vessel of which, at the time when the action is brought, the relevant person is the owner or beneficial owner as respects all shares in it.”
The vessel argued that the payment made was as part of a termination mechanism and not as purchase options. Other documents include proof of payments for disbursement of ship purchase fees.
The Court argued that irrespective of whether the action is an action in rem or the result of fraud allegations, these issues cannot be dealt with by this court which is not going into the merits of the case.
However, there is a claim filed by Degroma Trading Limited, which claim may be protected by a precautionary warrant. At face value the claim is justified and not excessive. It is based on a promise to sell the vessel which was not honoured.
The Court then moved to turn down the request to revoke the warrant of arrest of the vessel.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
This article may also be accessed on Malta Today.
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