Mr Justice Mark Chetcuti yesterday lambasted the US government for “not respecting the rule of law” and failing to show up for a court case for the third time this month.
The case was instituted by Virtu Ferries Ltd, which leased a catamaran to the US government back in 2011 to evacuate hundreds of US nationals from Tripoli during the Libyan revolution. An agreement signed at the time by former US Ambassador to Malta Douglas Kmiec stipulated that the embassy was to pay €500,000 for the hire of the vessel and six hours to load passengers. Delays would cost the US government €20,000 per hour.
But as things turned out the vessel was delayed by the Libyan authorities, by the time taken by hundreds of l passengers to show up and in the meantime the weather worsened. The catamaran left Tripoli several days later with passengers still boarding till the last minute. The US government has so far paid for the hire of the vessel but it has refused to pay for the demurrage – a payment for time taken by the charterers in access of the agreed period of loadings, which amount to €782,000. Virtu Ferries was forced to institute a court case after attempts for an out-of-court settlement failed.
But US government officials failed to turn up for the first two sittings, held on 11 and 26 March. The US government is arguing that under Customary International Law a state has 60 days in which to reply to a sworn application. Maltese law, however, states that respondents only have 20 days to do so.
A Foreign Affairs Ministry official yesterday confirmed that a sworn statement and a notice of hearing, which were translated to English, had been sent through the “proper diplomatic channels.” But the documents were twice sent back by the US Embassy, which insisted that it had 60 days to reply under international law. The reply said that “since the application did not come through the proper channels the US government will not appear before the court.”
Mr Justice Chetcuti yesterday criticized the US government and insisted that “if a case is put on the court list the involved parties have to attend.” The Judge said that he surely did not expect a democratic government to behave in such a “shameful” way. “The Maltese state should not subject itself to the whims and fancies of another government. They might insist on splitting hairs but I know the law just as well as they do. Everyone is equal before the law.”
The Judge noted that the applicants were willing to give the US government 60 days to reply but insisted that the plaintiffs actually have to attend court and make a formal request. He ruled that, since all the required documentation was sent through the proper channels, and since the US government representatives had failed to attend the sitting, the only option he had left was to declare that the plaintiff is in default (kontumaci). This means that the judge can now decide the case in default. The case continues on 20 May, when the applicant will present its evidence.
Dr Ann Fenech, who is representing Virtu Ferries, told this paper that, her clients still have to present their evidence and the US embassy will informed of every detail. “My clients are not interested in winning the case in default. We want to make sure that the embassy knows what is going on. And we will go that extra mile to keep them informed, whether they attend the court sittings or not. The lawyer also asked the court to continue the proceedings in English so as to lessen the chance of further hitches. “ I am trying hard to ensure that nobody particularly the defendants in this case can ever say that they were remotely disadvantaged by the proceedings, I seem to be defending the defendants rather than my own clients.”