Scheepswerf Bodewes-Gruno ν. The Ship "Algazera"
(1982)1 C.L.R. 358, 365). I, therefore, feel that "Cerise" were, under r. 35 of our Admiralty Rules, entitled to appear and defend the action as persons interested in the res. It is, however, another matter whether they have proved their interest in her and/or ownership of the ship. Having found that the submission of the plaintiffs that the action is undefended cannot stand, the first issue that calls for decision is whether the ship, after her construction and delivery to the "owners" was registered and if so in which country, in whose name and under what name and flag. During the hearing of the action the plaintiffs attempted to produce a number of documents, one of which was a photocopy of the alleged registration of the ship. Production of this document, photocopy of which was also in the possession of the Master of the ship (P.W. 5) when the ship was arrested whilst lying at the port of Limassol, and which is part of folio exhibit No. 2, was objected to by counsel for the defendants but after hearing arguments I decided to accept it as exhibit No. 6 in the proceedings. This document, which is in English and Arabic, bears the photos of the two owners and the stamp of the «Sea Ports Authority» of the Emirate of Abu Dhabi and is described in English as «Ship's Registration Certificate». The names of the owners, the tonnage of the ship, her length, breadth and depth, described n this document, all correspond with the particulars of the ship given in the «Builders Certificate» issued by the plaintiffs. Assuming, however, that I was wrong in accepting this document, this, in my mind, makes no difference to my conclusion that the ship was in fact registered in Abu Dhabi by her owners Mr. Abuzeid and Mr. Al-Sahy, as the defendants in para 1 of their Answer admit para 7 of the Petition which reads: «The shipowners registered the vessel in their joint names under the flag of the Emirate of Abu Dhabi under the name 'ALGAZERA' or 'AL JAZEERA'. In any event the vessel was carved or marked with the name 'ALGAZERA'». It is true that the defendants by para 2 of their Answer deny the contents of para 2 of the Petition by which the plaintiffs allege that Mr. Abuzeid and Mr. Al-Sahy had agreed to the construction of the ship by the plaintiffs but the evidence of Mr. Abuzeid on this point does corroborate the allegations of the plaintiffs and the evidence given by Mr. Bodewes on their behalf on this issue. In the light of the above, I find that the ship was registered in Abu Dhabi in the joint names of Mr. Abuzeid and Mr. Al-Sahy, to whom I shall hereinafter refer to as the "owners". The second issue that calls for decision is whether the "owners" could transfer ownership in her before her price was fully paid, in other words, before the two cheques of Mr. Al-Sahy were honoured and any extras paid. This issue is related to the «ownership» of the ship. There is no doubt that the plaintiffs gave to the "owners" the right to register the ship in their names. It is, also, an undisputed fact that both "owners" signed exhibit No. 4 by which they had agreed with the plaintiffs that they were to become the owners of the ship after they had paid her full price plus extras. The question, therefore, that arises is: Was one of the "owners" entitled to transfer to the other what he thought his share in the ship was, without the consent of the plaintiffs and could the partner that bought the shares of the other partner in her, transfer the interest in the ship to another person, in the present case "Cerise"? Before, however, I deal with this issue, it is, in my view, pertinent to find out and decide the following question: Which is the ship that was transferred by Mr. Abuzeid to «Cerise»? According to the Bill of Sale, which was executed by Mr. Abuzeid and which is exhibit No. 10 before me, what was transferred to «Cerise» was a ship bearing the name «AL JAZEERA", which was registered in Muscat in 1979. The description of this ship is given in this exhibit which is appended to my judgment as Appendix B'. Comparing now the description of the ship as given in exhibit No. 10 with that appearing in the documents contained in folio exhibit No. 2, in which photocopy of the "Builders Certificate" is also included, I find that the description of the ship given in exhibit No. 10 does not tally with that of the ship constructed by the plaintiffs, as neither the length of the ship transferred to «Cerise», nor its main breadth or depth in hold from tonnage deck to ceiling amidship agree. There is no evidence before me that there was a transfer of the registration of the ship from Abu Dhabi to Muscat and since I have found that, on the evidence before me and the admission by the defence in their Answer, the ship was registered in Abu Dhabi, it was, I find, the duty of the defence to prove that «AL JAZEERA» changed ownership or was registered in Muscat. This the defence failed to prove. Assuming, however, that the conclusion to which I have arrived is wrong, it is my further finding, having regard to exhibit No. 14 which is, according to the defence, the Registration Certificate of the ship «SHERRY JOY», that the ship «AL JAZEERA» was never transferred under the flag of Panama as in the said Registration Certificate, which is appended to my judgment as Appendix C' the ship is described, under the heading «Previous Name»: «New Construction» and under the heading «Previous Nationality»: «New construction». As it appears from the evidence of the captain of «AL JAZEERA» Mr. John French-Paris (P.W.5), after her construction and before her arrest, she sailed for quite some time. Therefore, her description as of «New construction» is utterly incorrect, in fact untrue. The evidence adduced by the defence as to how the alleged transfer of the defendant ship was effected, comes from Mr. Peter McHale (D.W.5), a solicitor practising in London. In giving evidence Mr. McHale said that Mr. Abuzeid was introduced to him by a client of his firm and that after Mr. Abuzeid gave him the particulars of the ship, the Bill of Sale was prepared and telexed instructions were given to his firm's correspondents in Panama to effect the registration of «AL JAZEERA». His evidence, which is a lengthy one, sheds no light to the inconsistencies contained in the various documents to which I have earlier made reference and it is of no use to the defence as it does not carry the quality, authority and detail that was necessary in relation to questions for which clear anwers were needed, namely why the said inconsistencies in the appended documents. In the result, I reject his evidence as unreliable and evasive. Although I have come to the conclusion that the ship «AL JAZEERA», which was built by the plaintiffs, was never registered in Panama, I feel that I have to deal with the issue of whether the "owners" could part with the ownership of the ship in view of the contents of exhibit No.4 which I have earlier quoted. From the authorities on the subject of the transfer of the property of goods from the seller manufacturer etc. to the buyer it appears that the mere handing over of the goods by the seller to the buyer passes the property immediately unless a different intention appears from the terms of the contract of sale. In the present case, as it appears from the contents of exhibit No.4, none of the contracting parties intended that any part or share in the ship would pass to the purchasers («owners») until the whole of the purchase price, plus value of extras, was paid. The handing over, therefore, of the «Builders Certificate» could not in any way affect the intention of the parties which is expressed in this exhibit that the «owners» or either of them could not, until full payment of what they owed to the plaintiffs, part with the ownership of the ship without the consent of the plaintiffs. Having found (
- a)that the one owner could not transfer to the other his share in the ship, (
- b)that the ownership of the ship constructed by the plaintiffs was never transferred to «Cerise» and (
- c)that the ship was never registered in Panama, I propose to give a summary of the case for the defence as regards the events that led to the alleged agreement between the «owners», by which Mr. Abuzeid bought from Mr. Al-Sahy his share in the ship and of what followed after the signing of the agreement which is exhibit No. 11 before me and is appended to my judgment as Appendix D'. Mr. Abuzeid, who is the main witness for the defence, said in his evidence that after the ship was delivered by the plaintiffs to the "owners", she sailed to Abu-Dhabi and that after she arrived there the relations between him and Mr. Al-Sahy broke down because of disagreement as to proposed charterers of the ship and/or failure to find any. There was, also, disagreement between them as to his suggestion that they had to lengthen the ship. After protracted discussions and negotiations Mr. Al-Sahy agreed to sell his share for £285,000.-Sterling. When this agreement was reached, Mr. Abuzeid visited a London solicitor, a certain Mr. Meade, who is D.W.3, and asked him to prepare a contract of sale. Two original contracts were then prepared and typed. Mr. Abuzeid met Mr. Al-Sahy in the lobby of the London Hilton and both signed the contract. Mr. Abu Gosh (D.W.1) and Mr. Abu Taha (D.W.2) signed as witnesses. After the contract was signed, the two witnesses left and Mr. Abuzeid and Mr. Al-Sahy went to the car of Mr. Abuzeid, which was parked outside in the street. There, Mr. Abuzeid took out of the luggage boot of his car a Samsonite case which contained the money; they were in cash and in bundles of various currency denominations. They then got into the car, Mr. Al-Sahy counted the money and he left saying to Mr. Abuzeid to post him the contract. This was done because the copy or the other original which was prepared by the firm of Mr. Meade had mis-spellings and it was not signed. Mr. Abuzeid then went to the Dorchester Hotel where he had photocopies of the contract made. On the following day and after having lunch with Mr.-Meade, Mr. Abuzeid asked Mr. Meade to certify the photocopies as true copies. As Mr. Meade was in a hurry to get away (he was going on holidays), they got into the car of Mr. Meade, Mr Meade took out his firm's stamp, he compared the photocopies with the so called original and when he found out that they were true copies, he certified them as true copies. After this Mr. Abuzeid went to the flat of Mr. Al-Sahy but as he did not find him there, he left and posted to him the original contract. On advice, he later had the photocopies authenticated by a solicitor who is so authorised by the Foreign Office. The signature of this Solicitor was, on the 11th September, 1979, authenticated by the Foreign and Commonwealth Office in London. After this, he went to Mr. McHale for the transfer of the ship to «Cerise». Mr. Abuzeid, in cross-examination, admitted that he was a declared bankrupt in Holland and that he served a term of imprisonment in Germany for dealing in stolen motor vehicles, which, however, he did not know that they were stolen. He alleged that the money he paid to Mr. Al-Sahy for his share in the ship was given to him by a cousin of his who lives in Abu-Dhabi and that this money he brought to England over a period of three month. The money, he said, was given to him in Derams in cash and he then changed it to English Pounds. As regards the share capital of "Cerise" Mr. Abuzeid said that its capital is £750,000.-; that the shareholders are his wife, his brother, Mr. McHale and a certain Mr. Peterson; that the shareholders paid up the capital and that the money is not in a Bank but is privately held by him. When he was asked to say what he meant by this he replied that he did not wish to disclose where the money was. Having considered the above facts I find that the story given by the defence is concocted, unreliable and untrue and I dismiss it without hesitation. Before concluding, I would like to say that assuming that the story given by Mr. Meade as to the certification by him of the contract of sale exhibit No. 11 is true, this bears no weight as to the genuineness of the signature of Mr. Al-Sahy. In the result, the plaintiffs succeed in their claim and I find that they are entitled to judgment in the sum of Dfls. 650,000.- or its equivalent at to-day's rate of exchange in Cyprus Pounds, plus legal interest and costs. Costs to be assessed by the Registrar. Judgment as per claim with costs APPENDIX A The shipyard, Scheepewerf Bodewes Gruno b.v. Korte Borgweg 1 at Foxhol, Groningen Holland? hereinafter called Yeard and the messers: Suhell Hanna Masud ABUZEID, born 22-1-43 at Zarka, I Jordan, living at Dordrecbt, Dubbel Steynlean 178 and Abdul Mamid Mirza Ali Alsahy, born 1948 at Bahrein, U.A.E. Nationality P.O. Box 6158, c/o Weltrado U.A.E. hereinafter called Owners have by mutual agreed to the following: Clause 1 Owners declare to have instructed the yard with, likewise the yard declares to have accepted the construction and delivery of a double screw reefer coaster. Chause 2 The yard shall build and deliver the ship according class requirements of G.L., unrestricted trade 100 A 1 RO and with the belonging class certificates. The dimensions of the ship will be as follows: Length o.a. Abt. 41.98m. » p.p » 36.50 m. Breath o.a. » 7.50m. The ship to be equipped with two off G.M. propulsion engines of 455 M.P. each, Clause 3 In the contract price is calculated a basic price for the total reefe plant, installation and insulation. Clause 4 The yard has to deliver the ship at the port of Delfzijl, four months after receiving the second installment, exepted always for strikes lock out of employees, fire explosions unforeseen circumstances of whatever nature, beyond the control of the yard or subcontractor suppliers. Clause 5 The agreed prices for the ship is Dfl. 3,700,000.-say Three million seven hundred thousand guilders and will be paid as follows: 1 st Instalment: 30% after signing the contract 2nd » Dfl. 850.000.-In November 1978 3rd » Dfl. 300.000,-In December 1978 4th instalment Dfl. 850.000,-after a satisfactory trial trip has been made and the vessel is delivered together with the class certificates to the Owner. Clause 6 The ship or belongings parts will be the property of the Owner to the maximum the height of the installments paid by the Owner. Clause 7 The yard has the right to make some variations in the drawings if this is better to their and to the class opinions. Clause 8 The ship will be build in accordance with the hereto belongings mini specification dated June 1978 and signed by both parties. Clause 9 This contract is valid under the General Conditions if the scheepsbouwveroniging Hoogezand. Drawn up in good faith, read and approved at Groniggen, 3 July 1978. Owners: 1. Name Abdul Hamid Aleahi 2. Name Suheil Hanna Resud Abuzeid. I, ABDUL-HAMID MIRZA AL-SAHI. of Welltrade Abu-Dhabi, Dalma Centre, Hamdan Street, Abu-Dhabi, United Arab Emirates, hereby acknowledge receipt of the sum of £288.888.88 (being the Sterling equivalent of 1.3 million gilders at an exchange rate of 4.5 gilders to the pound) from Suheil Abuzeid of 'Hadleigh' Sandown Road, Esher, Surrey, England in full and final payment for all my shares in the motor vessel 'Al-Jazeera' registered in Abu-Dhabi, U.A.E. under number 412 and I confirm that all such shares are totally unencumbered and that Mr Abuzeid is now the full owner of all the shares in the said ship. I further confim that the transfer of these shares does not in any way affect the various cheques that have been issued by me to Harry Bodewes (Shipbuilders) which I undertake to pay and I confirm that I shall not in any way seek reimbursement from Mr. Abuzaid in respect of any expenses or other outgoings incurred prior to the date hereof. I understand the nature of this receipt that is being signed by me and that it is fully legally binding and may be used as evidence of this transaction in the laws of any country in which proceedings may be commenced relating to this ship. Signed: ABDUL-HAMID MIRZA AL-SAHI (Vendor) Witnessed by: Signed: SUHEIL ABUZEID (Purchaser) Witnessed by: cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο