Malta should be at the centre of the development of international maritime law, says Ann Fenech, the first Maltese to be elected to the executive council of the Comite Maritime International.
What is the function of the Comite Maritime International? The website of the Comite Maritime International (CMI) states that: "It is a non-governmental, not-for-profit international organisation established in Antwerp in 1897, the object of which is to contribute by all appropriate means and activities to the unification of maritime law in all its aspects."
The CMI has been responsible for the drafting of the majority of international maritime conventions since 1897. These affect and regulate different aspects of shipping and interests in international trade from those of oil majors trading crude to the individual retailers importing goods from China.
The aim is to get as many states as possible to sign up to these conventions so that there is maximum common legislative ground between different nations. Unification in this important area means less complications for commercial activity generally including sellers and buyers, ship-owners, charterers, cargo owners and passengers, creditors and crew and the environment.
Who are the members of the CMI and how is CMI administered?
They are the individual 54 national maritime law associations from different countries which meet at the annual CMI conferences, colloquia or general assemblies.
The CMI is administered by an executive council made up of a president, past president, two vice presidents, secretary general, treasurer, administrator and eight executive council members. They are voted in by the national maritime law associations from around the world.
Work is conducted through international working groups. The advantage of the worldwide membership is that there is the immediate consideration of the perspective of different jurisdictions and different legal systems. Currently there are committees working on numerous topics including ship finance security practices, unmanned ships, liability for wrongful arrest, cybercrime in shipping, acts of piracy and maritime violence, fair treatment of seafarers, and the international recognition of judicial sales.
You are the first Maltese to be elected to the executive council and the only female on a board of 15. How do you feel about that?
I feel privileged and honoured. I have been practising maritime law exclusively for the past 32 years and this has brought me in touch with ship owners, masters, crew, charterers, ship managers, repairers, bunker suppliers, marine service providers from all over the world in totally different circumstances ranging from collisions in remote parts of the world involving Maltese registered vessels, to casualty work within our own territorial waters.
However participating at the executive council of the CMI is a different ball game. There we are working on international maritime law which is not only going to affect the maritime law of Malta but the maritime law of all the countries of the world that agree to ratify the conventions when these are drafted and ratified.
Being the only female on the executive council is a non-issue. I have been operating in a maledominated sector since I was 24 when I started working in London, and I never gave it a moment's thought. My motto has always been to work to the best of my ability and to avoid mediocrity.
Today I am joined by a significant number of very competent female professionals both locally and abroad and I am very happy to see that like me, they just get on with the task at hand and move on.
Why is it important for Malta to have a strong presence on CMI and how does it stand to benefit?
Malta's geographical position – which is equidistant from Suez and Gibraltar and north Africa and Italy – means it is at the centre of one of the busiest shipping lanes in the world. It is the gateway to Europe from the East which in turn means that it is ideally placed for everything from transhipment, to ship repair, to supplying maritime services to the oil and gas industry in the Mediterranean basin. No wonder therefore that we have developed into a nation of maritime service providers.
In addition to this we have the largest flag in Europe with over 65 million tons. This means that we not only have the ships registered under our flag but we have all the interests of the financiers who finance vessels secured by mortgages registered against these vessels.
Malta should therefore be at the centre of the development of international maritime law, because each and every international maritime convention will most definitely affect the various maritime activities which take place here.
Thus the Malta Maritime Law Association has for the past 10 years been a very active member of the CMI, participating in every initiative from working groups to the completion of questionnaires on the various subjects being discussed.
The fact that I am one of 15 members of the executive council and chair the IWG on ship finance security practices means that Malta has a strong and important voice at the highest possible level – at the drafting table. We saw this in real terms when there was the work being carried out on the draft convention on the international recognition of judicial sales.
Recently the CMI, the Ministry of Maritime Affairs and capital projects and the Malta Maritime Law Association co-hosted the Malta Colloquium on the International Recognition of Judicial Sales.
It is well known that post-2008, saw numerous ship owners face serious cash flow challenges with creditors including, suppliers, banks and crew arresting vessels in Malta leading to their judicial sale – a procedure which our judiciary has played an important part in perfecting.
It has been a difficult time for creditors from the Maltese maritime service industry. Thankfully Maltese law is robust and has ensured that creditors rights especially those of the mortgagees are well taken care of. In a judicial sale the most important thing is that the vessel is sold to the new ship-owner free and unencumbered from its previous debts and that such a sale is recognised worldwide without the dangers of re-arrest in another jurisdiction. Certainty is crucial and a key driver to the maximisation of price which a vessel will fetch in a judicial sale. Naturally the more a vessel fetches the better it is for the creditors. It is therefore also very much in the interest of all creditors – including the crew who frequently suffer great hardship in such situations as well as our harbour authorities who have to deal with these ships languishing in our territorial waters – that judicial sales are successfully concluded at optimum prices within very short periods of time.
In Europe thanks to the Brussels 1 regulation and Recast, judgments given in member states are recognised in other member states. However there is no international equivalent. The CMI got to work and drafted a convention on the international recognition of judicial sales. The United Nations Committee on International Trade Law (UNCITRAL) has accepted CMI's invitation to consider the matter and it was UNCITRAL which encouraged the CMI to host this colloquium.
Malta was the ideal venue and the Minister for Transport was immediately receptive to the idea. We had 180 delegates representative of the entire local and international maritime sector from over 52 countries and speakers from all over the world. The Malta Maritime Law Association was very proud indeed to have been entrusted with the organisation of this important event.
It is now hoped that UNCITRAL will be convinced sufficiently to consider that it essential for international trade that we have an international instrument which will provide for the international recognition of judicial sales. It will be important for Malta to know that the judicial sales ordered by our courts are recognised worldwide.
Originally published in Times of Malta - WEDNESDAY, MARCH 28, 2018
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
