Court finds against supplier of duty free goods

An action filed by a supplier of duty free goods against Viset Malta plc was yesterday dismissed by Mr Justice Joseph Azzopardi sitting in the First Hall of the Civil Court.

Emmanuel Degabriele claimed in his writ filed against Viset that he was a ship chandler and in 1987 he had acquired a Customs licence to operate a duty free shop.

In terms of law, Degabriele claimed he was entitled to supply duty free supplies through mobile facilities in specified areas of the shore where there were cruise terminals and passenger ferry terminals.

However, Viset Malta plc was not allowing him to carry out his work at Pinto Wharf in the Grand Harbour, which area the company had acquired by title of temporary emphyteusis from the government.

Degabriele claimed that this was in violation of Viset's own contract whereby the company had acquired the land and he asked the court to declare that he could carry out his business at Pinto Wharf and to order Viset to grant him access to the area.

Viset however pleaded that Degabriele's claim was unfounded as he had no right to enter into Viset's property without the company's consent.

Furthermore, the company pleaded that Degabriele could not take advantage of the contract whereby Viset had acquired the land in question from the government as this contract constituted a third party act as far as Degabriele was concerned.

In conclusion the company pleaded that the remedy requested by Degabriele was unacceptable at law and was contrary to the notion of the right to property.

Mr Justice Azzopardi noted that in terms of law one could contract to the benefit of a third party under certain specific conditions laid down in the law.

Viset had claimed that this provision of the law did not apply to the case in issue as the third party was not defined in the contract entered into between the company and the government.

The court pointed out that case law on this subject indicated that this provision of the law applied mainly to contracts of life insurance when a third party beneficiary was mentioned by name.

However, the company's contract with the government stipulated that the rights granted to Viset were to consist in the operation of the terminals and the carrying on, on and from the quays, of complementary passenger operations, subject to the obligation on the part of Viset to allow access, at no fee or other charge, on and from such quays to licensed suppliers and the service providers to vessels berthed alongside the quays. The contract, the court noted, made specific reference to certain categories of persons, namely those who were licensed to provide the services indicated in the contract itself and the government had to ensure that, once it was transferring its rights over public property, this transfer would not pose problems for certain services that were provided.

Viset's plea in this regard was therefore dismissed.

The court also dismissed Viset's plea that the remedy requested by Degabriele was not acceptable at law.

It was clear, it ruled, that Degabriele was basing his writ on the terms of the contract between Viset and the government. If his claims were well founded, then there was no reason to prohibit him from requesting such a remedy. This was because the contract provided for the limitation of the rights of Viset, and therefore if Degabriele fell within the definition of those persons who were entitled to enter certain areas of Pinto Wharf, then he was entitled to request access.

Mr Justice Azzopardi declared that the court had therefore to decide whether Degabriele was, in terms of the contract, a "licensed supplier" or a "service provider to vessels berthed alongside the said quays".

The court had to decide upon whether the government had intended to protect the business of persons such as Degabriele, who sold items to passengers, or whether the government had wished to safeguard the provision of supplies to the vessels.

The wording of the contract between Viset and the government was such that in the court's opinion the contract indicated that the parties wished to ensure that no obstacle would exist to the provision of supplies to the vessels.

Mr Justice Azzopardi concluded that Degabriele was not in fact a ship chandler, as he had claimed, but that his business was that of selling duty free supplies. As a result Degabriele did not qualify as a person who was entitled to enter the Pinto Wharf, and his writ was dismissed.

The court added that it sympathised with Degabriele who, as a result of the concession of public land to a commercial entity, was obstructed in the running of his business. However this was not a matter for the courts to examine and Degabriele might have other remedies available to him.