Maltese charterparty law

Abstract

This volume contains my Doctor of Laws degree thesis entitled "Maltese Charterparty Law". Our present law [Articles 273 to 320, i.e. Sub-tiles I ('General Provisions'), II ('Of the Rights and Duties of the Person Letting the Vessel and the Freighter') and III ('Of the Dissolution of Contracts of Affieightment') of Title I ('Of The Contract of Affreightment') of Part II ('Of Maritime Trade and of Navigation') of the Commercial Code (Chapter 13 of The Laws of Malta)] directly regulating Charterparties is partly primitive and anachronistic, and consequently in need of development and improvement. [Other Acts which supplement our Commercial Code in the field of Charterparties are the Carriage of Goods by Sea Act with the Schedule immediately following it (Chapter 140 of the Laws of Malta); and the Merchant Shipping Act (Chapter 234, Laws of Malta). However, my principal attention shall be directed towards the relevant laws in the Commercial Code, and Chapters 140 and 234 shall, due to space limitations, only be briefly considered in this work.] This thesis provides advice towards a perfected body of laws in an area which was, is and shall continue to be of paramount importance to Malta's economic strength and development. To this end I shall make a constructively critical analysis of our present laws, including reference to related Articles in Acts other than the Commercial Code, foreign laws, and both local and foreign court decisions on the subject. Extensive reference to both local and foreign jurisprudence on the subject is highly advisable, because in such jurisprudence lies the correlation between the existing laws and the correct interpretation and application which long experience has shown to be necessary. As Professor Berlingieri is quoted to have said "an old law albeit far from perfection, may be preferable to a new law when its interpretation has been analyzed in detail by the Courts during a considerable time." He went on to say that "a change in the law unless such as to definitely simplify the system ... will have dramatic negative effects for a number of years, until a substantial new body of jurisprudence is formed. Until such time, the small advantages that some changes might bring about would almost certainly be outnumbered by the disadvantages of the lack of a body of jurisprudence. Deformity may arise and only in the long run will it disappear." That a new Maltese law on Charterparties is necessary cannot be denied, nor may it be avoided. However, the regulation of Charterparties is by no means a new task, but is rather one which has for centuries been carried out by all countries which in any way carry out their trade across the water, so that we are able to avoid these negative effects by reference to and benefiting from the priceless experience gained thereby. However, while I have made reference to both English and other foreign statutes and case law, neither have, nor indeed should have, any direct application to Maltese law; I have made such reference only to supplement myself with ideas which I have rejected, replaced, improved upon, altered, modified or accepted, as I have considered best. My recommendations are, as such, never a mimic of English or any other law, but an advocate of a superior Maltese Law on Charterparties. On the other hand, I intend this thesis treating the subject of Charterparties for consideration both locally and beyond our Islands' territorial waters, and have accordingly chosen to deliver it in the International 'English' language, with the exception of quotes in Maltese, Latin or Italian. The scope of this thesis has dictated that it be limited to Charterparties. (However, since bills of lading also evidence a contract of carriage, these are indirectly taken into account where it is of assistance to my direct aim, which is Charterparties. Moreover, it has at times been necessary, for the achievement of my purpose, to deal with cases concerning bills of lading and, occasionally, even with matters unrelated to maritime trade, since the relevant principles involved are sometimes found to be common not only to bills of lading and Charterparties, but to other areas of the law as well.) I would first of all like to address the contemporary style oflegal drafting, which I consider to be at times less than completely unequivocal: The more important quality of the law should be its clarity of meaning rather than its grace of literary style, and any compromise between the two at the expense of certainty is in all justice unacceptable. Should care in the construction of sentences prove insufficient I shall therein also make judicious use of punctuation, brackets and explanatory notes to properly and fully communicate my intended meaning. This may not make for pleasant, fluid reading, but at least the meaning of what I write is clear. One more timely and appropriate note which I would like to make concerning the use of language in the law is this: London in England is the world's main centre for maritime legislation and litigation, and the English language is, ormai, an international language; consequently I would recommend the inclusion of English (and not only Italian) words into the Maltese language and Maltese version of the law (and I here speak of an inclusion for the purpose of enrichment, rather than a replacement of the Maltese terms by the English), thereby affording us all the technical and expressive advantages which the English language enjoys. After all, the purpose of the word of the law is justice, which is best served without the hindrance of cultural politics, to which it should be blind. [Note: It will be observed that I have referred to a ship as 'it' and not as an object of the female gender. I have done this purposely, as the tradition of referring to a ship as a female is English, and one to which I do not feel that we, as Maltese, need automatically subscribe, even when communicating in the second of our official languages.