Engineering & Trading Jurgen Seyfert GMHB ν. The Ship "Omar B" (1987) 1 CLR 518

(1987)1 CLR 518 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

(1987)1 CLR 518 [PIKIS. J.] ENGINEERING & TRADING JURGEN SEYFERT, G.M.B.H., Plaintiffs, v. THE SHIP «OMAR B», Defendant. (Admiralty Action No. 61/85). Admiralty - Judgments - Currency in which they should be issued - Liability of defendants fixed in Deutschmark - Judgment should be given in Deutschmark. The out come of this case depended on the implications of the evidence adduced before the Court. The facts sufficiently appear in the judgment. Judgment for the plaintiffs with costs. Cases referred to: Lamaignere [1975] 3 All E.R. 801; Williams and Glyn's Bank Inc. v. Kouloumbis and the Ship «MARIA»

(1986)1 C.L.R. 627. Admiralty action. Admiralty action for D.M. 16, 171. - balance due for spare parts, D.M. 45, 250.- monies paid by plaintiff for and on behalf of the defendants and D.M. 2,149. - charges for a letter of credit opened in favour of the plaintiffs for goods supplied. A. Georghadjis, for the plaintiffs. Counsel of defendant withdrew with the leave of the Court. Cur. adv. Vult. PIKIS J. read the following judgment. The plaintiffs, a German company, sued the defendant vessel «OMAR B» for the recovery of: (

1. a)DM 16, 171.- balance due for spare parts supplied by plaintiffs to defendant. (
2. b)DM 45, 250. - monies paid by plaintiffs to a German manufacturing concern, namely, Storm, for and on behalf of the defendant, and (
3. c)DM 2,149. - charges for a letter of credit opened in favour of the plaintiffs for goods supplied. The plaintiffs are a family company basically owned and run by Mr. Heinrich Seyfert, a Civil Engineer. The company deals mainly in the sale of spare parts of diesel engines and operates in Germany and abroad. The defendant vessel is owned by Mr. Bachache and Mr. Sayes, Lebanese nationals. In January 1984 the engine of the vessel broke down when the vessel was at the sea port of Limassol. The owners applied to Mr. Papalos, the owner and Manager of a local ship repair company, namely, Marpa Ltd., for advice and assistance. At their request he inspected the engine of the vessel and found out it was seriously damaged. The crankshaft and bearings were burnt. On his suggestion the services of Mr. Seyfert were sought. He brought the owners of the vessel and Mr. Seyfert together. What took place on that and subsequent occasions between them is the subject of dispute. It is the case for the plaintiffs that an agreement was struck between plaintiffs and defendants through the management of the two companies, that plaintiffs should (
4. a)supply needed spare parts for the repair of the engine, and (
5. b)arrange for the supply by German manufacturers of a reconditioned crankshaft and the services of German experts for the installation of the crankshaft and the repair of the engine. In the context of this agreement he entered on behalf of the defendant into an agreement with German manufacturers, namely, Storm, whereby they would supply a reconditioned crankshaft and experts for its installation and the repair of the engine on the undertaking of the plaintiffs to meet the cost of the crankshaft and the expenses of the two engineers detailed to install the crankshaft and oversee the repair of the engine. In the absence of the undertaking of the plaintiffs, they were unwilling to supply either the crankshaft or technical services. The plaintiffs agreed to give the undertaking after prior agreement with the owners of the defendant vessel who would in turn recompense, them for any expense incurred on their behalf. Following their agreement with defendant, the plaintiffs supplied spare parts and made the necessary arrangements for provision by the German company Storm of a reconditioned crankshaft and technical services for its restoration and repair of the engine. Defendants failed, in breach of their agreement, to pay part of the cost of spare parts and reimburse the plaintiffs for monies paid to Storm for the crankshaft and services rendered by two German engineers in the employment of Storm who came to Cyprus and supervised the installation of the crankshaft and the repair of the engine. Defendants refuted liability to plaintiffs on any ground. In their defence they denied entering into any agreement with the plaintiffs, either for the supply of spare parts or their reimbursement for machinery and services supplied by Storm. The repairs to their vessel were undertaken and carried out, as alleged in the defence, by a local repairer meaning, without naming them, Merpa Ltd., the only concern with which they entered into any form of agreement respecting the repair of their vessel. Notwithstanding the denial of any contractual liability with the plaintiffs, they raised an alternative defence contending that in the event of their being found liable at all to the plaintiffs for any amount, the latter were answerable for damage suffered by the defendants on account of their negligence in carrying out repairs to their vessel. The defence does not indicate the origin of the duty of care owed to the defendants or the circumstances under which the plaintiffs assumed the repair of their vessel. Not only it is hard to reconcile the alternative defences but to an extent they contradict one another. The plaintiffs disputed the counterclaim and denied any liability to the defendants for the repair of the vessel solely and exclusively undertaken by German manufacturers in the circumstances indicated above. When the case came up for hearing, counsel for the defendants applied for leave to withdraw for the reasons indicated in the minute of the Court of 19th September, 1986. We need not go into those reasons, except note that leave was granted to advocate G. Savvides to withdraw. Defendants appointed another advocate to represent them, namely, M. Georghiou. And every opportunity was given to the newly briefed counsel to acquaint himself with the case and prepare for the trial. In due course the Court embarked on the hearing of the action. Two Witnesses testified for the plaintiffs, Mr. Seyfert and Mr. Papalos, and plaintiffs closed their case. Whereupon evidence was let in by the defendants in support of their case. Specifically Mr. Mohamed Bachache was called to the stand and counsel for the defendants began eliciting his testimony. Before the completion of examination-in-chief, the case was adjourned on the application of defendants in order to afford them opportunity to amend the answer and counterclaim. An application for amendment was made in due course. It was opposed by the plaintiffs; whereupon a date for hearing was given. Before the hearing of the application, counsel for the defendants applied for leave to withdraw on account of lack of interest on the part of his client in the fate of their case. Leave to withdraw was granted and the case was fixed afresh for a continuation of the hearing, there being no other alternative in the circumstances. Directions were given that defendants should be notified of the date of hearing and of their right to appear and make their defence. Counsel assured the Court that these directions were brought to the notice of at least one of the owners of the defendant vessel. Nontheless, they failed to appear. Thereupon I invited arguments from the plaintiffs as to the implications of the evidence adduced, including the uncompleted testimony of Mr. Bachache. Counsel invited me to give judgment for the plaintiffs on the strength of the testimony adduced in support of their case. The testimony of Mr. Seyfert is to the effect that following the agreement between the parties, spare parts were supplied to the defendants, a fact evidenced, inter alia, by the documentary evidence adduced before the Court, whereas the undertaking given to Storm was duly honoured. The defendants in breach of their agreement failed to meet the costs of spare parts and repudiated the agreement to reimburse the plaintiffs for the monies paid to Storm. Mr. Papalos confirmed in practically every material respect the testimony of Mr. Seyfert, firmly refuting the suggestion of the defendants that his company was paid for any goods and services supplied by the plaintiffs or through the agency of the plaintiffs. In his testimony before the Court Mr. Bachache maintained that he stopped payment of monies due for the supply of the crankshaft and technical services associated therewith, as well as the repair of the vessel, upon noticing that the vessel had not been properly repaired, the cause of damage to the defendants. The fact that his evidence was incomplete, makes difficult its appreciation in proper perspective, whereas the absence of an Opportunity of cross-examination neutralizes its cogency. I am disposed to attach no weight to it. The documentary evidence adduced reinforces the evidence of both Mr. Seyfert and Mr. Papalos and tends to establish the existence of a contractual relationship between plaintiffs and defendants along the lines indicated by Mr. Seyfert. Moreover, if contains material from which it can be reasonably inferred that plaintiffs had no part in the contractual arrangements between Storm and the defendants other than agreeing to meet the cost of payment on the express agreement that they would be duly reimbursed by the defendants. I find the claim of the plaintiffs under (
6. a)and (
7. b)duly proven. On the other hand, the evidence is inconclusive as to the liability of the defendants for the payment of charges for the letter of credit, totalling DM 2,149.- That part of their claim will be dismissed, as well as the counterclaim which is totally unsuported by evidence. It transpires form the evidence before the Court that the liability of the defendants was fixed in Deutschmark, the currency of the contract. This being the case, it is appropriate that judgment should be given in Deutschmark. Judgment is hereby given for the plaintiffs for DM 61,421.- or its equivalent in Cyprus pounds. Defendants are further adjudged to pay the costs of the action and counterclaim; save that where litigation for the claim coincided with litigation for the counterclaim, one set of costs should be recovered. Judgment for plaintiffs for D.M. 61,421.- with costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο