Criminal liability of small ship masters in Maltese territorial waters

Abstract

In order for one to highlight the shortcomings and flaws revolving around the criminal liability of small ship masters as defined by the Small Ships Regulations at sea and subsequently propose revision and renovation, a number of principles and fundamental pieces of legislation have to be dealt with. The initial and chief pieces of legislation to be tackled are the Criminal Code1 and the Small Ships Regulations2. The relevant content of the abovementioned shall be backed up by related case law. The scope of the Small Ships Regulations is laid down in Regulation 1(3) which states that the purpose of these regulations is: (a) to regulate the registration of small ships under twenty-four meters of length; (b) to regulate water based recreational activities in the internal and territorial waters on Malta; and (c) to regulate the preservation of good order in any part of the internal and territorial waters of Malta.3 This thesis shall undergo a critical examination of a number of crucial regulations concerning the definition of a small ship; incorporating length, navigation and use, the registration of small ships, safety equipment, the insurance policy, the marking of a small ship, speed in harbours and bays, general speed, bathing and swimming zones, the nautical licence, hire of small ships, water skiing, as well as the special procedure for certain offences, the power of the enforcement officer to seize a small ship and the rights and powers of Transport Malta. The general principle of ‘culpa’ shall be duly delved into. This thesis shall examine the magisterial inquiry conducted by the Court of Magistrates as a Court of Criminal Inquiry. The procedure shall by duly delved into and scrutinized. Experts shall be consulted. The criminal offences under the Criminal Code4 related to small ship masters at sea shall be examined counting: crimes against the person and crimes against property. Furthermore, the master’s behaviour, negligent, dangerous and reckless driving, drunk and drug driving, keeping a proper lookout and the duty of care shall be examined. Defences, Mitigating factors as well as aggravating factors shall be presented to the criminal offences and a set of punishments shall be proposed. The Criminal Code is paramount to this subject, establishing most importantly the requirements for criminal liability under a number of distinct articles such as Article 225 covering ‘Involuntary homicide’ and Article 226 covering ‘Involuntary bodily harm’. This thesis shall examine the connection between on the one hand the Small Ships Regulations and on the other hand the Criminal Code. Other legislation such as legislation regulating the criminal offence of illegal fishing shall be discussed. Furthermore, I will be proposing revision and renovation to the Small Ships Regulations, to the Third Schedule of the Small Ships Regulations to the Criminal Code and to regulations governing illegal fishing through this thesis. Finally, this thesis shall analyze local case-law relevant to the subject, commenting upon and criticizing considerations and decisions by magistrates and judges. In addition to this, this thesis will be comparing local case-law to foreign jurisprudence where applicable.