PERSONAL INJURIES AND DEATHS MALTA

Transcription

1 PERSONAL INJURIES AND DEATHS MALTA This Guide explains national law when seafarers are injured or killed in a port in Malta or on a Maltese flagged ship. This document is not intended to be legal advice, nor does it constitute legal advice. If a seafarer is injured or killed, then the seafarer or his relatives are strongly advised to consult a lawyer qualified to practise in Malta. *A full text version of this Subject Guide including footnotes will become available for subscription in due course. In the meantime if there is a specific inquiry on any Subject Guide, please contact SRI. 1. If a seafarer is injured or killed in a work related incident, does Maltese law allow a claim for compensation to be brought? 1.1 Under Maltese law, it is possible to bring a claim for damages in the case of work related injury or death of a seafarer. 2. What is the basis for recovery of compensation for personal injury or death claims? 2.1 The damages that may be awarded by a Maltese Court for personal injury are as follows: actual damages (damnum emergens) actual loss caused; and loss of future earnings (lucrum cessans) arising from any permanent incapacity, total or partial, which the act may have caused. 2.2 Where the victim dies as a consequence of the act giving rise to the damage, the Court may, in addition to any actual loss and expenses incurred, award damages to the heirs of the deceased person. 3. Are Maltese laws for compensation for personal injury or death of a seafarer applicable only to Maltese nationals, or are the laws applicable to foreigners also? 3.1 Maltese law providing for compensation for work related injury or death does not discriminate on the basis of the nationality of injured party, so it would apply to a seafarer, independently of whether he is Maltese or foreign. Page 1/5

2 4. Is Maltese law the same throughout the country, or does it change from state to state or from province to province or for any other political or geographical area? 4.1 National law applies all throughout Malta. 5. Is Maltese law the same for all types of seafarers, such as blue water seafarers engaged in international trade, seafarers employed in coastal waters, or fishers? 5.1 The applicable Maltese law concerning work related injury or death is the same for all seafarers as this applies across the board to all work related injuries and deaths. 6. Which court would have jurisdiction over a claim for compensation by a seafarer who was injured or killed: (1) on a Maltese vessel, or (2) on a foreign flagged vessel in a local port of Malta or in the territorial seas of Malta? 6.1 The First Hall of the Civil Court in Malta would have jurisdiction over a claim for damages brought by a seafarer working on a Maltese flagged vessel who was injured, or for a claim brought by his heirs if the seafarer was killed. 6.2 Similarly, the Maltese Courts would have jurisdiction in rem against any foreign flagged ship which is physically within the Maltese jurisdiction where there is any claim for work related loss of life of the seafarer or personal injury caused to the seafarer. 7. Would the Maltese court uphold a jurisdiction and/or law clause in the employment contract of a seafarer who had been injured or killed in a work related accident? 7.1 If the parties decide on a particular choice of law to regulate the contract, the contract is deemed to have the force of law between the parties. However, in the case of a work related injury to, or death of, a seafarer, any related claim would be based on tort, and not on contract. 7.2 In the case of exclusive jurisdiction clauses, one has to see whether EU law applies since if this applies with the parties having agreed to the courts of an EU member state as their forum, the Maltese Court would have to decline jurisdiction. Page 2/5

3 7.3 However, as already pointed out above, in the case of a work related injury to, or death of, a seafarer, any related claim would be based on tort, and not on contract so the Court would not be expected to uphold a jurisdiction/law clause in an employment contract in a case for damages resulting from a work related injury or death. 8. What is the time limit for bringing a claim after the occurrence of an incident? 8.1 Actions for damages not arising from a criminal offence are barred by the lapse of two years. 9. Is a seafarer s claim for compensation for injury or death a maritime claim that can be secured by arrest of a ship? If so: (1) which ship can be arrested; and (2) in what circumstances can the ship be arrested? 9.1 A seafarer s claim for damages for work related injury or death constitutes a ground for arrest of a ship in Malta as long as the ship is physically within the jurisdiction of Malta. The action in rem may be brought against: that ship or vessel, where the person who would be liable on the claim for an action in personam ('the relevant person ) was, when the cause of action arose, an owner or charterer of, or in possession or in control of, the ship or vessel, if at the time when the action is brought the relevant person is either an owner or beneficial owner of that ship or the bareboat charterer of it; 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. 9.2 Such injury or death must have occurred in connection with the operation of the ship or sustained in consequence of any defect in a ship or in her apparel or equipment or in consequence of the wrongful act, neglect or default of - the owners, charterers or persons in possession or control of a ship; or the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods in, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship. Page 3/5

4 10. What types of damages are recoverable? 10.1 Actual damages (damnum emergens) and loss of future earnings (lucrum cessans). Moral damages are not recoverable. 11. What are the principles for calculating compensation for a claim by a seafarer or his next of kin for: (1) a work related injury; and (2) a work related death? 11.1 The Maltese Courts have devised a formula to reach compensation amount, based on a permanent incapacity, whether total or partial, affecting the victim s future income earning capacity The formula provided for the multiplication of the income earned by the victim before the accident by the amount of the victim s estimated remaining working years, known as the multiplier. This amount is calculated after subtracting the victim s age from his retirement age. This calculation is, therefore, not based on the victim s general life expectancy, but upon his professional life expectancy. This would also be reduced slightly by taking into consideration the victim s state of health and the circumstances of the case, or what the Court has called the chances and changes of life. This refers to any possible events which might have taken place in the victim s life that would in themselves have reduced his income earning possibility This would then be multiplied by the percentage of permanent disability, whether total or partial. Finally, the total sum would be further reduced should the total amount be paid in one lump sum payment made shortly after the delivery of the final Court judgment, known as the lump sum payment deduction Presently, Maltese law only compensates for patrimonial or pecuniary losses. However, it is arguable that by simply referring to heirs in Article 1046, the legislator left open the possibility of awarding damages, though not directly referred to as moral damages, to the heirs of the deceased victim who were not dependent on his financial assistance at the time of the event. This tradition of not directly referring to moral damages stands to change with the coming into force of the proposed introduction of the 2010 amendments to the Civil Code provisions dealing with the quantification of damages due to victims of torts. The amendments will formally introduce the notion of moral damages into Maltese civil law The Maltese legal system as it currently stands, with its emphasis on monetary compensation payments, mirrors greatly the Scandinavian countries, common law countries, including South Africa, and a number of civil law countries. Page 4/5

5 12. What damages might be awarded in the following circumstances: (1) 30 year old seafarer, injured aboard a vessel, who is now totally disabled. Medical expenses of US$15,000 per year for the remainder of his life? (2) 30 year old seafarer, who dies as a result of an accident on board a vessel, who is survived by a 29 year old wife and 2 children, ages 2 years and 4 years old? 12.1 The formula devised throughout the years by the Maltese Courts for calculating damages is [AE x NY x P%] twenty per cent. AE represents the victim s net annual income at the date of the accident. If the victim is of young age the annual income is increased to take into account future wage increases the victim would have enjoyed. NY represents the number of years for which compensation for lost income is requested and is calculated retiring age less age of victim at date of accident. P% represents the victim s percentage permanent disability. The 20% deduction represents the deduction to the total amount due since victim or heirs will be receiving such compensation as a lump sum payment. The 20% deduction is generally reduced by the Courts if the compensation to the victim or his heirs is paid after a number of years from date of accident. 13. How efficient are the local courts and what would be an average estimated time for hearing and ruling on a seafarer s claim for compensation for injury or death? 13.1 Litigation is always time consuming. Much would depend on the circumstances of the case including but not limited to the number of witnesses, the ease of collecting evidence, the defence put up by the defendant and the need to appoint medical experts by the court. Any judgment given by the first court is then subject to appeal. 14. On what basis will a lawyer generally charge a seafarer for handling a claim for compensation? 14.1 A lawyer would normally charge for his legal services on basis of the established official tariff, which is calculated on the award given by the Court. Any extra-judicial work would be charged for separately based on an hourly rate. Page 5/5