Ann Fenech is a Partner at Fenech & Fenech Advocates – Malta and Heads the Marine Litigation Department. She qualified in 1986 and immediately joined Holman Fenwick and Willan in London. In 1991 she moved from there to Chaffe, McCall, Phillips Toler and Sarpy in New Orleans. In 1992 she joined Fenech & Fenech Advocates setting up the Marine Litigation Department. She was appointed Managing Partner of the firm in June 2008 a position she held until December 2020.
She has extensive experience in disputes ranging from ship building contracts to immediate casualty response in collisions having acted and advised some of the most important international maritime operators. She has been involved in the majority of serious casualties involving Maltese registered vessels worldwide and those occurring in Maltese territorial waters. She has worked on landmark cases including the explosion on board the Um El Faroud, the disappearance of the trawler Simshar, the Poker cases leading to a redrafting of the law on jurisdiction in rem; Finaval v Scorpio resulting in the largest award in damages at the time and the first ever court approved private sale of the vessel Thor Spirit. She has extensive experience in Marine related transactional including having acted for the Malta Privatisation Unit on the privatisation processes related to the then Malta Drydocks.
She is the legal correspondent for the West of England, the American Club and Steamship mutual.
She has been responsible for the drafting of a number of laws related to the maritime sector including the Pilotage Regulations and the sections on Jurisdiction in Rem in the Code of Organisation and Civil Procedure. She lectures extensively on the subject of Maritime Law in Malta and abroad.
Dr. Fenech lectures on Salvage, Pilotage, Towage and Collisions as well as Carriage of Goods by Sea at the University of Malta and delivers a series of lectures on Maritime Practice at the International Maritime law Institute.
She has written several articles in a number of publications and is responsible for the Chapter on Malta in the Ship Arrest Handbook published by LLP Ltd 1997 Edition; Shipping and International Trade Law published by Thomson Reuters (Professional) UK Ltd Edition 2015 and The Shipping Law Review published by Law Business Research Ltd Third Edition 2016.
In June 2008 she was elected President of the Malta Maritime Law Association.
In October 2010 she was appointed Executive Board Member of the European Maritime Law Organisation. In 2012, 2014 and 2015 she was awarded Best in Shipping Law at the European Women in Business Awards held in London. In October 2013 she was appointed Honorary Patron of the Malta Law Academy under the auspices of the Maltese Chamber of Advocates and in June 2014 was elected on the Executive Council of the Comité Maritime International – the international organisation responsible for drafting the vast majority of international maritime conventions. She was subsequently chosen to chair the International Working group on Ship Finance Security Practices. In October 2015 she was appointed on the Malta Maritime Forum Board of Directors and in April 2016 she was also appointed to represent the Malta Maritime Law Association on the board of the government agency Malta Marittima. In September 2017 she was elected to serve a second term on the Executive Council of the Comité Maritime International. In November 2018 she was elected as Vice President to the Executive Council of the Comité Maritime International.
A creditor recently obtained a Section 37 order on a provisional basis from the Maltese courts as security for a claim arising from a dispute under a charterparty. The purpose of the order was to prohibit the sale, transfer or deregistration of the vessel while the merits of the case were being determined. While the law allows owners to opt to deposit security, the legislature has catered for these instances to ensure that creditors' rights are not prejudiced.
The June 2018 sale of the Indian Empress has attracted the attention of the superyacht community worldwide and international brokers, the international yachting media and potential owners and creditors of the yacht are watching this space very closely. This was the first time that a Maltese court ordered bidders in a judicial sale by auction of vessels to make a cash deposit in court prior to the sale taking place and the first time that a bidder was held liable for the payment of the difference.
The Comite Maritime International (CMI) has been aware that there are challenges relating to the international recognition of judicial sales of ships. As such, the CMI approached the United Nations Committee on Trade Law in order to encourage it to embark on future work on cross-border issues relating to judicial sales. The committee, on its part, encouraged the CMI to hold a colloquium to provide additional information to the commission. This colloquium was recently held in Malta.
The term 'Maritime Malta' perfectly describes Malta – a country which has always had close connections with the sea and maritime sector. In addition to its strategic position, Malta has a stable and reliable legal regime and laws which give investors and their financiers a high degree of confidence. These achievements are a direct result of careful planning, a strong workforce that is prepared to deliver value for money and a 'can do' attitude.
While the arrest of vessels is an exceptionally effective and powerful tool which genuine creditors have every right to use, it is paramount that the rule of law is observed and the law's high standards are maintained. Otherwise, there is a risk of increased lawlessness. The Maltese courts have addressed arresting parties' failure to follow the law in several cases, taking immediate action to correct any misinformation.
A recent case has highlighted a weakness in Maltese law in relation to the right to claim damages resulting from an illegal arrest. Despite finding that the arrest was illegal, the court stopped short of ordering reparations because it held that the defendants' failure to satisfy the criteria outlined in Article 742(D) Code of Organisation and Civil Procedure was not malicious, frivolous or vexatious and thus no damages could be sought.
In 2006 the Organisation and Civil Procedure Code was radically overhauled in relation to the provisions governing Maltese enforcement mechanisms, among other things. The changes to enforcement mechanisms included the introduction of court-approved private sales, under which mortgagees can source private buyers at the highest possible agreed price and, on court approval, sell vessels free and unencumbered.
Following the recent increase in attacks on vessels travelling in the vicinity of Somalia, demand has grown for private maritime security companies that can provide professional armed guards on board a vessel to assist in anti-piracy measures. Malta has therefore recently taken steps to regulate the licensing of such companies to ensure that they meet appropriate standards and employ quality personnel of high integrity.
A Maltese civil court recently further confirmed the rights of mortgagees granted by the law. Despite leaving a number of questions unanswered, this ruling should reassure international financiers of vessels registered under the Malta flag. Provided that the contracts into which they enter are in line with the provisions of the Merchant Shipping Act, financiers can rest assured that their rights will be fully upheld and safeguarded.
Legal history was made recently when a Maltese civil court granted an application requesting approval of a private sale. Court-approved private sales are intended to address the respective disadvantages of private sales and judicial sales by auction. Notwithstanding that this remedy has been on the statute book since 2006, this case represented its first test.
In 2010 the Maltese courts issued their highest-ever damages award in a case involving a failure to transfer shares in a company that was the owner of a new Aframax tanker. An Italian company filed an action against a Monegasque company for breach of a promise to sell shares in a Maltese registered company which had been formed for the purposes of entering into a shipbuilding contract.
The financial crisis has brought with it increased requests from mortgagees about how best to protect their interests. Fortunately for mortgagees of vessels registered in Malta, a mortgage duly registered in the Shipping Register is an executive title and therefore equivalent to a judgment. This means that in case of default, the mortgagee need not prove title or go through any court procedures to enforce the mortgage.
In December 2008 Parliament passed Act XV/2008, which brought into force a number of procedural changes, including the creation of one single warrant of arrest of a seagoing vessel to replace the previous warrant of impediment of departure and warrant of seizure.
As Malta is not a signatory to international arrest conventions, the arrest of ships is governed entirely by domestic law. In order to be arrested in Malta, the vessel must be present in Malta and the claim must exceed LM3,000. The grounds for arrest are equivalent to the grounds upon which Maltese courts exercise jurisdiction either in rem or in personam.
As the term 'ship' is widely defined under the Merchant Shipping Act, all types of vessel (including those under construction) as well as other marine structures (eg, oil rigs and pontoons) may be registered under the Maltese flag. Vessels may be registered under the Maltese flag only if evidence of seaworthiness is established by one of the internationally recognized classification societies.
In Finaval SpA v Scorpio Ship Management SAM the Civil Court awarded Italian-registered company Finaval SPA over LM7 million in damages. Finaval filed a writ against Scorpio Ship Management SAM and others when Scorpio failed to transfer ownership of a newly built ship to Finaval, as set out by an agreement between the two parties.
The Department of Value Added Tax (VAT) has announced an attractive VAT incentive package through new guidelines on the VAT payments applicable to yacht leasing. The guidelines address scenarios where a Maltese company purchases a pleasure yacht and enters into a lease-sale of the yacht with a third party.
Last year the Commercial Yacht Code came into force to regulate the use of commercial yachts. Commercial yachts benefit from paying tonnage tax rather than income tax on the earnings of the owner company. The new regulations have proven to be extremely popular, with a marked increase of European yachts used for commercial purposes registered under the Maltese flag in the first year of operation of the code.
A new section of the Code of Organization and Civil Procedure has finally brought Maltese law on jurisdiction in rem and arrest out of the Victorian era. Further amendments have introduced the concept of court-approved sales and simplified the process of issuing warrants for the arrest of a vessel.
For some time now there have been calls to update the legislation relating to transportation. However, 2006 is due to see the introduction of three new laws that have been outstanding for a number of years. One of these acts is expected to incorporate the Convention on the Contract for the International Carriage of Goods by Road.
A Maltese court recently gave an interim judgment on the issue of whether items supplied to a yacht by the agent qualified as necessaries. Under Maltese law, the court has jurisdiction in rem over a vessel in the case of necessaries supplied to the vessel.
A judgment on actions in rem and debts incurred by bareboat charterers which is diametrically opposed to two earlier decisions has recently been published. The court disregarded the defendant vessel's attempt to distinguish between the grounds on which courts can exercise jurisdiction and the right of a plaintiff to file an action against a vessel in rem for the debts of a bareboat charterer.
In Maltese shipping legal circles the name 'Poker' has become synonymous with the debate over whether an action in rem can be instituted against a vessel for debts incurred by the vessel's bareboat charterer. To date, seven service providers have filed actions in rem against the Poker.