MEGAHED ν. "SHIP ""WESSAM"""
(1980)1 CLR 93 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1980)1 CLR 93 1980 February 14 [SAVVIDES, J.] NEAG FARAG MEGAHED, Plaintiff, v. THE SHIP "WESSAM", Defendant. (Admiralty Action No.239/79). Admiralty-Shipping-Seaman-Contract of sercice-Termination without proper notice-Wrongful dismissal-Loss of accommodation and provisions enjoyed on the ship-Award of one month's salary as damages and expenses of accommodation and subsistence for one month-Section 18
(1)of the Merchant Shipping (Masters and Seamen) Law,1963 (Law 46/63). Admiralty-Shipping-Seaman-Foreign seaman-Wrongful dismissal A "distressed seaman"-Awarded repatriation expenses to his country-Section42 of the English Merchant Shipping Act,1906 applicable in Cyprus by virtue of the Merchant Shipping(Safety of Seamen) Law, Cap.292 read in conjunction with the Merchant Shipping (Masters and Seamen) Law,1963 (Law46/63). By means of an oral agreement, concluded in January 1979, the plaintiff was engaged to serve as chief engineer for an indefinite period on the defendant ship at the remuneration of U.S. dollars 600 per month. On September 9, 1979 an authorised agent of the owners of the defendant ship came to Cyprus and asked plaintiff to leave the work as the defendants had employed somebody else to replace him. He was locked out of his cabin and asked to leave the ship. As he was deprived of his accommodation he had to stay at a hotel where he was paying a sum of £7.-per day for his accommodation and subsistence. Hence this action for wages and other emoluments, subsistence, repatriation expenses and damages for wrongful dismissal. The only evidence in support of the action came from the plaintiff; it stood uncontradicted and was accepted as truthful and reliable by the Court. Held,
(1)that the plaintiff was wrongfully dismissed from his employment, turned out of the ship and deprived of his accommodation and maintenance which he was enjoying whilst serving on the ship; and that, consequently, he was justified in bringing the present action.
(2)That plaintiff had been in the employment of the defendants for a period of nine months and under his contract of service his wages were paid on a monthly basis; that taking into consideration the fact that at least till the hearing of the action, which was about two months after the filing of the action, the plaintiff was out of work and not employed elsewhere, and the fact that his employment was on a monthly basis, he is entitled to his claim for one month's salary as damages for the termination of his contract in the absence of any proper notice of dismissal.
(3)That once plaintiff was deprived of his accommodation and provisions which he was enjoying on the ship, and forced to get out of it, without the owners of the defendant ship taking any adequate steps for his maintenance and subsistence pending his repatriation, he is entitled to his claim for accommodation and maintenance for a period of one month in respect of which he has been awarded damages for wrongful dismissal in the absence of proper notice of termination (see section 18
(1)of the Merchant Shipping (Masters and Seamen) Law, 1963 (Law 46/63)). Held, further, that the fact that plaintiff stayed in Cyprus till the hearing of the action, is not a good reason to allow him accommodation and maintenance for a period longer than one month, because his evidence could have been taken before the trial (see r. 125 of the Cyprus Admiralty Jurisdiction Order, 1893).
(2)That the expenses of relief of "distressed seamen", either for their maintenance, necessary clothing, conveyance to a proper return port, or in the case of death for their burial or otherwise are recoverable (see section 42 of the English Merchant Shipping Act, 1906, which is applicable in Cyprus by virtue of the Merchant Shipping (Safety of Seamen) Law, Cap. 292 read in conjunction with Law 46/63); that the question whether a seaman is "in distress" is a question of fact in each particular case; that plaintiff was a seaman who was dismissed from his employment and was forced to disembark the ship in Cyprus; that he was of foreign nationality and he was bound to return to a port in his country, such port falling within the meaning of a "proper return port" under the said section 42 of the English Merchant Shipping Act, 1906; and that in the absence of any agreement to the contrary he is entitled to his repatriation expenses to his country. Judgment accordingly. Cases referred to: Palace Shipping Company Limited v. Caine and Others [1907] A.C. 386; Board of Trade v. The Sailing Ship Glenpark Ltd. [1904] 1 K.B. 682. Admiralty action. Admiralty action for wages and other emoluments, subsistence, repatriation expenses and damages for alleged wrongful dismissal. C. Erotocritou, for the plaintiff. Defendant absent. Cur. adv. vult. SAVVIDES J. read the following judgment. This is an action for wages and other emoluments, subsistence, repatriation expenses and damages for alleged wrongful dismissal, brought by the plaintiff against the defendant ship which at the material time was lying in the port of Limassol undergoing repairs. According to the petition the plaintiff was engaged in January, 1979, by an oral agreement, to serve as chief engineer for an indefinite period on the defendant ship at the remuneration of U.S. dollars 600 per month. The defendant ship is flying the Lebanese flag and on 12.9.1979 she was put under arrest by order of the Court under a writ issued in these proceedings and was subsequently bailed out but was and still is undergoing repairs in Limassol port. It is the allegation of plaintiff that he was wrongfully dismissed by the owners of the ship and as a result he brought the present action, claiming wages due to him as from 2.8.1979 to 9.9.1979, subsistence money and/or food allowance as from 9.9.1979 till 16.10.1979 at £7.-per day, repatriation expenses and damages for wrongful dismissal. The owners of the defendant ship by their answer deny that they wrongfully dismissed the plaintiff or that they committed a breach of their contract. It is their allegation that the plaintiff failed to discharge efficiently his duties and as a result of such failure and negligence on his part, the engines sustained damage in respect of which they counterclaim against the plaintiff a sum of £1,000.-. They further allege that though the contract of the plaintiff entitled them to dismiss him from employment they did not exercise this right and it was plaintiff himself who left the ship and brought the present action and at the same time issued a warrant of arrest against the ship. It is further contended by the defence that the employment of the plaintiff was subject to termination by one week's notice. The only evidence before me at the hearing was that of the plaintiff himself. Though the plaintiff was cross-examined on matters touching failure on his part to perform his duties, allegations which he denied, the defendants did not adduce any evidence to contradict him and to support their allegations. According to plaintiff's evidence whilst in the employment of the defendants, he was wrongfully dismissed from employment without any notice on the 9th September, 1979 under the following circumstances: An authorized agent of the owners came to Cyprus and informed him that his services were not required any longer and asked him to leave the work as the defendants had employed somebody else to replace him. He was locked out of his cabin and asked to leave the ship. As a result, he left the ship and instituted the present proceedings. Due to the fact that plaintiff was deprived of his accommodation, he had to stay at a hotel where he was paying for his accommodation and subsistence, a sum of £7.-per day as from the 9th September 1979: till the 9th November, 1979 when this case was fixed for hearing. The other items claimed by the plaintiff were wages due to him till the day he was dismissed, i.e. 38 days, which converted into Cyprus Pounds at the material time, amounted to £268.-, a sum of £29.200 mils for repatriation expenses from Cyprus to Egypt and £211.-representing one month's wages by way of damages for wrongful dismissal. After the evidence of the plaintiff was concluded, the hearing was adjourned for another day, when counsel appearing for the defendant ship, applied for leave to withdraw from the proceedings, in view of the fact that, according to his statement, the owners of the defendant ship were repeatedly notified to attend the hearing and supply him with further instructions in the case, but they failed to respond. Leave was granted to him to withdraw and the case proceeded in the absence of the defendants and plaintiff concluded his case. On the evidence before me, coming from the plaintiff which stands uncontradicted and which I accept as truthful and reliable, I am satisfied that the plaintiff was wrongfully dismissed from his employment, turned out of the ship and deprived of his accommodation and maintenance which he was enjoying whilst serving on the ship and, in consequence, he was justified in bringing the present action. Having found so, I come now to consider the amounts which the plaintiff is entitled to recover under the various headings of his claim. A.Wages: The plaintiff has alleged and the defendants have not denied that wages for a period of 38 days as from 2.8.79 till 9.9.1979 were due to him, amounting to £268 which is the equivalent in Cyprus Pounds of his wages at U.S. dollars 600 per month, at the rate prevailing at the time when the petition was filed and which has not been contested by the defendants. I find that plaintiff is entitled to recover such amount. B.Other claims: The claims for subsistence, accommodation, repatriation and damages for wrongful dismissal which arise after the 9th September, 1979 when the dismissal took place, may all be included under the heading of general damages. In the defence it is alleged that only one week's wages were payable by way of damages in case of wrongful dismissal. Such allegation has not been substantiated by the defendants. Plaintiff, on the other hand, claims damages in this respect, amounting to one month's salary. Plaintiff had been in the employment of the defendants for a period of nine months and under his contract of service, his wages were paid on a monthly basis. Taking into consideration the fact that at least till the hearing of the action, which was about two months after the filing of the action, the plaintiff was out of work and not employed elsewhere, and the fact that his employment was on a monthly basis, I find that he is entitled to his claim for one month's salary as damages for the termination of his contract in the absence of any proper notice of dismissal. I find such amount as being C£211.-which is the equivalent of U.S. dollars 600 as per para. 4(d) of the petition. In Palace Shipping Company Limited v. Caine and Others [1907] A.C. 386, the House of Lords found that the plaintiffs who were wrongfully dismissed, were entitled to "wages until the final settlement and to the cost of maintenance for the same period under the head of damages for wrongful discharge". In delivering the judgment of the House of Lords, Lord Loreburn, L.C. at page 392, had this to say: "The delay in payment of their wages was not due to the act or default of the seamen, or to any reasonable dispute as to liability, for the liability to past wages was never disputed. It was due solely to the wrongful act or default of the owner or master. And, therefore, the seamen's wages continued to run and be payable until they received them, which was not till the judgment of the Court of Appeal. 'Final settlement' in s. 134 means, in my opinion, payment or other such settlement as that section prescribes''. This finding, however, was based on section 134 of the English Merchant Shipping Act, 1894 which is one of the sections the operation of which has no application in Cyprus by virtue of section 111 of the Merchant Shipping (Masters and Seamen) Law, 1963 (Law No. 46 of 1963). Further down, on the same page, the Court is dealing with the question of maintenance and the following appears in the judgment of Lord Loreburn: "The Court of Appeal awarded also a sum for maintenance, apparently regarding that as included in the term 'wages'. I would prefer to treat it as damages for the wrongful discharge. In the result it comes to the same thing, for the men were deprived of their provisions, and that was an item of their loss." And at page 391, the following is reported in the same judgment: "And though statutory provision has been made for the protection of seamen, the ancient power of the Admiralty Court to shelter them from wrong is not superseded". On the question of maintenance in cases of seamen whose services are terminated, provision is made under section 18
(1)of Law 46/63, to the effect that with the exception of cases in which section 13 of the same Law applies, the master cannot terminate the services of a seaman of a ship flying a Cyprus flag or a foreign flag within the Republic, Without the approval of the Port Officer or a Consular Officer who represents the State to which such ship belongs, without taking adequate steps for the maintenance and subsistence of the seamen satisfying such Port Officer or in the case of foreign ship satisfying such Consular Officer of the State under whose flag the ship is registered. A criminal sanction is imposed upon any master who dismisses a seaman in contravention of such section. The defendants have not complied with such provision. Section 13 has no application in the present case because such section only provides as to termination of a contract either as a result of the lapse of the period mentioned in the agreement, the loss of the ship, wreck or sale by public action (sub-section
(1)) or cases where the master can terminate the agreement as a result of the seaman refusing to embark or unjustifiably absenting himself from the ship or as a result of a serious offence committed by the seaman which exposes the ship and the crew in danger or in cases of serious breach of discipline or the unsuitability of the ship to sail (sub-section
(2)) or cases where the master is guilty of serious breach of his duties towards the seaman (sub-section
(3)). In the circumstances of the present case, I find that once plaintiff was deprived of his accommodation and provisions which he was enjoying on the ship, and forced to get out of it, without the owners of the defendant ship taking any adequate steps for his maintenance and subsistence pending his repatriation, he is entitled to his claim for accommodation and maintenance for a period of one month in respect of which he has been awarded damages for wrongful dismissal in the absence of proper notice of termination. The fact that plaintiff stayed in Cyprus till the hearing of the action, is not a good reason to allow him accommodation and maintenance for a period longer than one month, because his evidence could have been taken before the trial under rule 125 of the Rules of the Supreme Court in its Admiralty Jurisdiction, and then be free to leave Cyprus and get a job in his country, something which according to his evidence was not difficult for him to do. In the result, I find that amount to which he is entitled under this heading at C£210.-(thirty days by £7.-per day). As to repatriation expenses, as there is no express provision in Law 46/63, assistance in this respect may be sought in the English Merchant Shipping Act, 1906 which, by virtue of our Merchant Shipping (Safety of Seamen) Law, Cap. 292, read in conjunction with Law 46/63 (by virtue of section 1 of Law 46/63), are applicable in Cyprus, subject to the dispensation of the operation of certain sections, by section 111 of Law 46/63. Under section 42 of the English Merchant Shipping Act, 1906, there is provision for recovery of expenses of relief of "distressed seamen" (either for his maintenance, necessary clothing, conveyance to a proper return port, or in the case of death, for his burial or otherwise (section 42
(1)). The question as to whether a seaman is "in distress", is a question of fact in each particular case. InThe Board of Trade v. The Sailing Ship Glenpark Ltd., [1904] 1 K.B. 682, it was held that even "receipt of wages by seaman sufficient to maintain him and pay his passage to a return port, does not necessarily show that he was not a 'distressed seaman' ". I find that by analogy such provision is applicable in the present case. Plaintiff was a seaman who was dismissed from his employment and was forced to disembark the ship in Cyprus. He was of foreign nationality and he was bound to return to a port in his country, such port falling within the meaning of a "proper return port". In the absence of any agreement to the contrary at the time of his discharge, I find that he is entitled to his repatriation expenses to his country. In the result, under this heading B. I find that plantiff is entitled to- (a) one month's wages for termination of employment amounting to £211.-. (b) Subsistence and maintenance for one month, £210.-. (c) Repatriation expenses, £29.200 mils. Thus, the total to which plaintiff is entitled under both headings A. and B. of my judgment amounts to £718.200 mils, and I give judgment for plaintiff against the defendant for this amount with costs. Costs to be assessed by the Registrar. The counterclaim is dismissed with no order for costs. Judgment and order for costs as above. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο