Issue link: https://maltatoday.uberflip.com/i/195525
47 Classifieds maltatoday, SUNDAY, 20 OCTOBER 2013 2013 Transfer of possession of merchandise = transfer of risk T he First Hall of the Civil Court ordered a freight company to pay the value of merchandise it was asked to ship, since it was not shipped on the agreed date and it was destroyed in a fire that erupted in the warehouse it was being kept. This was held in a judgement delivered by Mr Justice Anthony Ellul on 14 October 2013 in the names Mediterranean Trading Shipping Company Limited and Dr Cedric Mifsud for and on behalf of the foreign company Atwood Oceanis Australia Pty Limited –v– Tristar Freight Services Limited. In their application, the plaintiff companies held that the Atwood had engaged Mediterranean Trading to send part of equipment used on an oil rig from Malta Malcolm Mifsud mmifsu mmifsud@mifsudadvocates.com.mt to Perth in Australia. On 1 August 2011, Mediterranean Trading placed this equipment in a warehouse in Cospicua in accordance to the defendant company's instructions. It was also agreed that this piece of equipment was to leave the island by sea on 14 August. On the 19 August 2011, the Tristar sent an email informing Mediterranean Trading that the equipment was destroyed in a fire. The plaintiff company held that this was the defendant company's fault and should pay damages. The defendant company filed a statement of defence stating, amongst others, that it had no contractual relationship with Atwood, that it was not responsible for the fire and that The court entered into the issue of whether the 14 August 2011 was the actual date that the merchandise was to leave the island, or whether it was merely an indication the action instituted by the plaintiff company was based on an illegal premise, since that sum declared in the customs documents were far less than what was being claimed in this action. The court examined these pleas and on the question of illegality of the premises of the action, the court held that it was true that the amount declared for Customs and that being claimed is considerably different. However, from the evidence produced it did not result that this export required a payment to customs. Then the court entered into the issue whether the 14 August 2011 was the actual date that the merchandise was to leave the island, or whether it was merely an indication. The Director of Tristar testified that since the Waybill was not signed the transaction was not complete and therefore there was not contract between the two entities. The Court disagreed, since there was email correspondence between the two Maltese companies that at first the date of departure was 6 August 2011, then on 9 August an invoice of €521.74 was sent and then instructions were given where the equipment was to be taken to. Furthermore, it was established that Mediterranean Trading was responsible for the equipment that was owned by Atwood. The court pointed out that there was no contestation that the equipment was destroyed by the fire that took place in the warehouse Tristar had indicated to the plaintiff company to take the equipment. Tristar presented a report that the cause of fire was arson, however, it did not mention how it arrived to that conclusion. The court held that a person is always bound by its obligations as long as an incident is not caused by force majeure. Once the defendant company took possession of the equipment, it was then bound to take care of it and assure itself that no damage was caused. Once the possession passed on to the defendant company, so did the risk. The report did not mention whether there was anything that could have prevented the fire such as safety equipment. The Court also pointed out that Mediterranean Trading did not suffer any damages. With regard to the value of this piece of equipment, the plaintiff company declared to Customs that it held a value of €2,000, but in fact it costs €18,599.99. Mediterranean Trading held that it merely wrote down the value. The defendant company claimed it had no judicial relationship with Atwood. It was proved that the equipment, which was eventually destroyed, belonged to Atwood, whoever Atwood had engaged Mediterranean Trading, while Mediterranean Trading engaged Tristar. Therefore, a direct relationship between Tristar and Atwood was not required. The Court then upheld Atwood's claims only, and ordered Tristar to pay the sum of €18599.99. Malcolm Mifsud is a partner at Mifsud and Mifsud Advocates Tribunal gives green light to dwelling instead of abandoned farm A development application entitled 'To replace an abandoned pre-1992 farm into dwelling' was initially refused by the Malta Environment and Planning Authority in August 2010. The building is located on the side of a valley (in Siggiewi), to which end the Authority held that the proposal runs counter to Structure Plan policy RCO 29, which essentially seeks to prevent soil erosion and encourage the conservation and management of water resources. Even more so, the site was identified as an Area of High Landscape Value, where a strong presumption against the creation of newly built structures is warranted with a view to "protect and enhance the scenic value". The Authority also maintained that the "proposed development does not fall into a category of change of use which can be considered under Policy 2.3D of the Policy & Design Guidance on Agriculture, Farm Diversification and Stables (2008)". In other words, the proposed use (residential dwelling) is not one of the uses allowed by virtue of the said policy. More so, the Authority cited Structure Plan policies SET 11 and SET 12, which prohibit further intensification of urban development in the countryside "even where public roads and Tribunal held that the farm structures constitute an eye sore Robert – more sensible, from Musumeci an environmental point of view, to encourage MEPAwatch redevelopment utilities are already available". In the report, it was further highlighted that the proposed dwelling is not located within 183m from the nearest development zone. In addition, the Authority alleged that the existing farm buildings are not covered by a valid development permit. Were it but so, there is a possibility that the request would have been considered favourably. Following the decision, the applicant filed an appeal before the Environment and Planning Tribunal, countering that the building in question is indeed covered by a 1983 permit. Applicant produced evidence showing that the building consisted of a farm which was in full operation "for a number of years". Also, the Director of Agriculture and Fisheries issued a certificate confirming that the farm was active prior to 1992 and is no longer suitable for agriculture purposes. In addition, applicant pointed out that Structure Plan Policy SET 11 (which prohibits new urban development in ODZ) does not apply in this case due to the fact that the site in question is clearly committed. As a final point, applicant insisted that policy RCO 29 (which seeks to prevent soil erosion and encourage the conservation and management of water resources) would not be compromised since the site is already disturbed. At any rate, applicant argued that the proposal included the introduction of soft landscaping which "will enhance the rural settings and character of the area". On a preliminary note, the Tribunal observed that that notwithstanding its allegations, the Authority never proceeded with direct action to remove the said construction. Having said that, the Tribunal noted that a planning permit for a dwelling was issued way back in 1986 but the premises were in actual fact used as a farm. In its conclusions, the Tribunal underlined that new ODZ dwellings are in principle objectionable, particularly in areas featuring high landscape value. Nonetheless, the Tribunal held that the farm structures constitute an eye sore and it would be more sensible, at least from an environmental point of view, to encourage redevelopment. Against this background, the Tribunal ordered the Authority to issue a permit for the demolition of the existing structures and the construction of a 120 square metre, one storey dwelling. robert.musumeci@rmperiti.com