The First Hall, Civil Court, presided by Mr Justice Francesco Depasquale, on the 6 June 2023, in the case “Emanuel Sant (Mary Sant succeeded the acts in this case on the death of her husband) vs Andrew Schembri and Christopher Sant personally and in representation of Sea Star Cruises Company Limited” held, among other things, that legal interests on the amount of compensation awarded to applicant started to accrue from 22 April, 2008, as a remedy to the defendants’ delaying tactics to prolong these proceedings unnecessarily and not from the date of judgement.
The facts in this case were as follows:
In the early hours, between the 7 and 8 September 2000, the defendants’ fishing boat, ‘Comino Princess’, which was berthed in St Paul’s Bay, and lying adjacent to Emanual Sant’s fishing boat ‘Santa Maria’, caught fire. The fire on the ‘Comino Princess’ quickly spread and wrecked Emanuel Sant’s fishing boat ‘Santa Maria’.
Faced with this situation, on 20 August 2001, Emanuel Sant proceeded to file a case for damages against Andrew Schembri and Christopher Sant, personally, and on behalf of the company Sea Star Cruises Company Ltd.
He held all three defendants jointly and severally liable for damages, which he attributed to their negligence and lack of care. Consequently, Emanuel Sant requested the Court to:
- declare defendants in solidum and fully responsible for the damages and for his consequent losses; and
- liquidate and to condemn defendants to pay him damages.
The defendants, in reply, disputed all responsibility. It was stated, in their defence, that the fire broke out by accident, and or by ‘force majeure’ and that each party should suffer his own losses.
The Defendants, in addition, contested ‘in solidum’ liability and challenged applicant Emanuel Sant to indicate the applicable legal provision and or any agreement, on which his claim was based.
The Court considered the following pleas:
1. Liability in Solidum
In absence of any evidence to exonerate any of the defendants, the Court found all defendants to be liable in solidum and rejected their pleas.
2. the Burden of Proof
The Defendants’ claims that a certain third party was responsible, had not been proven, pointed out the Court. Allegedly, their competitor in business, George and Jonathan Grech had threatened to destroy their vessel. This, however, had not been established.
The Defendants never called these certain third parties to the witness stand despite obtaining court authorization to do so.
The Court explained that as a cardinal rule of procedure, the burden of proof always rested with the person who asserted a fact: onus probani incubit ei qui dicit non ei qui negat. This Court also observed that the Court of Magistrates as a Court of Criminal Judicature on the 29 April 2019, in the case “Il-Pulizija v Jonathan Grech u George Grech”, had cleared these third parties, George and Jonathan Grech of all charges against them.
3. Force Majeure
The Court was not convinced that the damage was an accident, nor a ‘force majeure’ event. It was more likely that the fire broke out on ‘Comino Princess’ owing to the failure of defendants to take all necessary safety precautions to switch off the electrics on board.
The Court felt it opportune to make reference to Professor Alfred Vella’s report, and to adopt his conclusions. Professor Vella had been appointed by the Court during the inquiry.
Citing this report, the Court agreed with the Professor Vella’s assessment that as a result of water seepage during a storm on that fateful night, there was a short circuit in the electrics of the ‘Comino Princess’, and that this triggered a fire, which rapidly spread to the vessel ‘Santa Maria’, engulfing both vessels.
4. Cause and Effect
There had to be a link of cause and effect between defendants’ act or omission and the damage suffered by the applicant, in order to attribute civil responsibility, maintained the Court.
Art1045(1) of the Civil Code provides:
‘(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused:
It was clear in this case, that this was established. The Court concluded that the defendants were exclusively to blame for the fire on board their fishing vessel ‘Comino Princess’ and for the consequent destruction of the applicant’s fishing boat, ‘Santa Maria’ on 8 September 2000. For this purpose, the Court adopted the court appointed expert’s report.
5) Liquidation of Damages
In the process of computing the material damages, the Court referred to the expert’s report, where a number of factors were taken into account. In particular:
- the age and price of applicant’s fishing boat, and the condition of his fishing and navigation equipment, which had suffered depreciation over the years.
- the state of deterioration of applicant’s vessel ‘Santa Maria’ which had also received a battering in a storm in the year 1988.
As for the liquidation of damages lucrum cessans, the Court examined copies of applicant’s income tax returns and considered his net profits from fishing.
In regard to these considerations, the Court awarded the applicant Euro 22,634 compensation for the damages, Euro 21,600 damnum emergens and Euro1721.76 lucrum cessans, representing the loss of one year’s income with legal interests accruing from way back to 22 April, 2008, as a remedy to the delaying tactics employed by defendants during the proceedings.
For the aforementioned reasons, on June 6, 2023, the First Hall Civil Court gave judgement by rejecting all the defendants’ pleas of defence and by accepting applicant’s requests. All the defendants were held responsible ‘in solidum’ for the damages to applicant’s fishing vessel and were ordered to pay the applicant €22,634.73 in damages. All judicial expenses were to be borne by the defendants.
Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report.
This article was first published on The Malta Independent on 23/08/2023.
Author: Karl Grech Orr (Partner, Ganado Advocates)
