Comptroller of Customs' position confirmed (Malta Court of Appeal)
Written by Ivan Mifsud Saturday, 06 November 2010 04:48 Last Updated on Saturday, 06 November 2010 06:05
29 October 2010, Valletta (Ref: App. Civ. 1045/2005/1). The Court of Appeal upheld the Comptroller of Customs' power to refuse to release a yacht involved in contraband activities, even though the yacht owner was not involved in the illegal activities. The yacht had been confiscated in accordance with the Customs' Ordinance, art. 68.
The Customs' Ordinance (Cap. 37, Laws of Malta), art. 68 (1) - (3) reads as follows:
'68. (1) All vessels, vehicles or other conveyances, together with all horses and other animals and things knowingly made use of in the importation, landing, removal, keeping, concealing or conveyance of any uncustomed or other goods liable to forfeiture under this Ordinance shall be forfeited:Provided that no vessel shall be liable to forfeiture under the provisions of this article, unless such vessel is under two hundred and fifty tons burden.
(2) With regard to any vessel of or exceeding two hundred and fifty tons burden, it shall be lawful for the Comptroller, in any case in which in his opinion a responsible officer of such vessel is implicated either actually or by neglect, to take proceedings in the manner prescribed by article 66 and subject to appeal as laid down in that article, for condemnation of the said vessel in a sum of one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69). And for this purpose the Comptroller may require, as to any vessel referred to in this subarticle, the deposit in his hands of a sum of one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69) to abide the decision of the court, and in default of payment of such deposit, the Comptroller may detain such vessel.(3) No claim shall be made against the Comptroller for damages in respect of the payment of any deposit or the detention of any vessel under this article.'
The First Hall of the Civil Court, by means of a judgement delivered 29 October 2010, denied the yacht owner's request to order the release of the yacht. Amongst other things, the Court referred to the Comptroller of Customs discretion and administrative powers in such matters, considering the law to be clear and leaving little leeway for interpretation. The Court cited McFarlane Customs and Excise, Law and Practice who commented on an English case Keyser v. British Railway:
"a motor wagon which was seized by Customs on the ground that it was being used for the conveyance of goods liable to forfeiture. At the time the wagon was subject to a hire purchase agreement between the operators and British Railway Traffic. The officers of the respondent company were totally unaware of and free from complicity in the transaction which led to the seizure. However it was held in the Divisional Court that the Court was bound to condemn the vehicle, and that it had no discretion to decline to do so on the ground of hardship to an innocent owner. Lord Hewart observed ‘… this undoubtedly rigorous statute gives the claimant no opportunity of asking the Court to take into consideration mitigating circumstances …’. There is no opportunity for mercy with regard to a conveyance which has been forfeited. The only remedy available would be to institute an action against the persons who made use of such a vehicle in order to recover the damages of its loss."
At Appeal, the Court confirmed the First Hall of the Civil Court's position, stating amongst other things that article 68(1) clearly states that the vessels involved in the illicit activities shall be forfeited. No distinction is made between the owner and the user of the vessel. No amount of good faith on the owner's part could have a bearing on the situation, as stated in Guido Vella v. Comptroller of Customs, First Hall, 31 October 2008.
To read the Court of Appeal's judgement (in Maltese) click here
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