Legal Systems and Maritime Law: Civil Law, Common Law, Tort and the Maltese Courts

Start here in Business & Law. This topic is the base for every other law topic: read it before conventions, certificates and liens. Maritime liens have their own topic.

Civil Law and Common Law

In short: the world’s legal systems fall into two big families. Civil law applies a written code. Common law grows from court decisions.

• Civil law (also called continental law): the rules are written in codes and statutes passed by the legislature. The judge applies the law as written to the facts of the case. Roots: Roman law and the French Napoleonic Code. Used across most of continental Europe (Italy, France, Spain).
• Common law: the law is built from court decisions. A judgment of a higher court sets a precedent that lower courts follow in similar cases. Statutes exist too, but judges fill the gaps. Born in England; used in the UK, the USA and Australia.
• Watch the double meaning. “Civil law” also means private law (disputes between people or companies), as opposed to criminal law. The law of tort is civil law in this second sense.
• On the bridge: after a collision, a court in a common-law country asks first “what did earlier judges decide in cases like this?”. A court in a civil-law country asks first “what does the code article say?”.

The Law of Tort

In short: a tort is a civil wrong that harms another person and makes the wrongdoer legally liable to pay compensation.

• Tort is a branch of civil (private) law. It covers civil wrongs, not crimes.
• Its aim is compensation (damages) for the injured party, not punishment. Criminal law punishes; tort law repairs.
• Liability can come from three routes:
  • Negligence: careless breach of a duty of care.
  • Intentional harm: a deliberate wrongful act.
  • Strict liability: liable even without proof of fault (typical for dangerous activities).
• Common torts: negligence, defamation, trespass, nuisance.
• Liability arises when someone owes a duty, breaches it, and the breach causes harm.
• The same act can be a crime and a tort: the State prosecutes, and the victim can also sue for damages.
• At sea: a tender driven carelessly through an anchorage hits a swimmer → a claim in negligence. A generator running all night next to a berthed yacht → nuisance. Boarding a vessel without permission → trespass.

Malta’s Mixed Legal System and the Three Branches

In short: Malta’s law is a mix of civil-law and common-law traditions. State power is split between three branches: legislative, executive and judiciary.

• Mixed system: Maltese law combines continental (civil) law from Roman and Napoleonic sources, English common law from the British period (1800–1964), and local tradition.
• Memory hook: Parliament makes the law, the Government runs and enforces it, the Courts judge it.

1. Legislative branch: Parliament

• The Parliament of Malta (House of Representatives) passes Acts on every area of life: civil, criminal and maritime law.
• Every law must respect the Constitution of Malta, including the European Convention on Human Rights (ECHR), made part of Maltese law in 1987 (European Convention Act, Cap. 319).

2. Executive branch: Government, Police and Armed Forces

• The Government (Prime Minister and ministers) runs the country. It proposes new laws, changes and repeals to Parliament, and issues regulations under the powers that Acts give it.
• Ministries and departments check compliance with civil and commercial law. For shipping, Transport Malta applies flag rules such as safe manning and hours of rest.
• This branch enforces the law. The Police and the Armed Forces of Malta keep law and order, investigate crimes and carry out regulatory enforcement.
• On the bridge: an Armed Forces of Malta patrol boat stopping a yacht in Maltese waters is the executive branch at work.

3. Judiciary: the Courts

• The courts interpret the law and carry out judicial review (checking that laws and government acts respect the Constitution).
• The system is split into inferior and superior courts (next section).

The Maltese Courts

In short: small money claims start low, at the Small Claims Tribunal. Bigger and more serious cases go to the superior courts. Appeals go to the courts of appeal, and the Constitutional Court sits at the top.

Inferior courts

• Small Claims Tribunal: monetary disputes up to €5,000, decided quickly on equity and law by an adjudicator (European e-Justice Portal; Small Claims Tribunal Act, Cap. 380).
• Courts of Magistrates (Malta and Gozo): less serious criminal cases and civil claims up to €15,000 (European e-Justice Portal).

Superior courts

• Civil Court: civil and commercial cases above the Magistrates’ limit (First Hall), plus family and voluntary-jurisdiction sections.
• Criminal Court: serious crimes, with trial by jury (a jury of nine, European e-Justice Portal).
• Constitutional jurisdiction: the First Hall of the Civil Court gives remedies under the Constitution and the ECHR when fundamental rights are breached.

Courts of appeal

• Court of Appeal: civil appeals (three judges in its superior jurisdiction, one judge for appeals from the inferior courts and the Small Claims Tribunal).
• Court of Criminal Appeal: criminal appeals.
• Constitutional Court: appeals on constitutional and human-rights cases; the highest court in Malta.

• Example: a deckhand owed €3,000 in wages after leaving a Maltese yacht files at the Small Claims Tribunal. A €40,000 repair dispute with a shipyard goes to the Civil Court.

The Merchant Shipping Act (1973)

In short: the Merchant Shipping Act is Malta’s main shipping law. Parliament passed it in 1973; it is Chapter 234 of the Laws of Malta.

• It gives the legal framework for maritime operations in Malta.
• It sets the registration rules for ships and yachts under the Maltese flag. Transport Malta’s Merchant Shipping Directorate runs the register.
• It gives Maltese ships international recognition and protection: the flag stands behind its ships wherever they trade.
• On the bridge: the Certificate of Registry on board a Malta-flag yacht exists because of this Act. Seafarers on commercial vessels registered under the Act can hold the digital Seaman’s Record Book.