19M> [V λSSI!lADIS J.I Jan. 24 JOHN ΠΟΛΝ, JOHN DOAN /) Plaintiff, I ION M m i r m n \ - r. M \N S l H I ' l ' I M . \ i ,1 N( V AM) I ION M E D I T E R R A N I A N S H I P P I N G , AGF \ M ) 1 III Η AND N O ANOIHRR, Defendants. (Adnuralt\ Pitnine Costs Action ful avuinst only one against nvo defendants of titan <•//•( umstwnes /οι the planinif t'n\ucees\ful defendant suaewfid !\o !(ii'6.*H Plaintiff Reasonable wiaess· in all the to hare sued both defendants - ordered defendant's itium io\t\ to
- pa)-Form of both plaintiff \ the oidei and Bullock ordei. \dnuialt\ \ttson for damages fur negligenie ί,ΊΊ/ίΛ whilst th\iintr»cd i>; fn\t defendants I his case is r'M.n.c (torn the ship on -l.tabifm Damage i<. plaintiff's to trade, \ Ne^it^ctitc i e p o r i e d mainly l o r the r c i M u h n g the ι o ^ s οI ifio operated On/ s h o i l point o\ successful d e k n d a n t o u l e i e d to l v borne h\ die unsiu-Lcssful defendant I he tacts i'( ιhe wise M i l ' t i u c n t k appeal in ιhe judgment o f ihe C o n n ( ases i e l e i n : d to liowmaker Ihiul {{'annuel t
- ml)I'd. i'uits Humid |l l >651 I and it tt'.L.P. \ Da ν and Pert ι ltd anoiha. Burt fourth Parti IVI', Vdmiralty \ction. \dmiinll> plaintiff- A c t i o n f o r Π'Π. ί'35 mils damages caused t o p e r s o n a l effects i e s u l l i n g f r o m t h e i r f a l l i n t o the sea o n *· a b o u t t h e l o t h N o v e m b c t , 1964, d u e ί ο t h e negli g e n c e o i i'ic d e f e n d a n t s a n d / o r m b r e a c h οϊ c o n t r a c t . Λ. (i. M> liruie. -I. for plainlifl intoi Hides. f o r d e f e n d a n t s N o 2 F>cfcn<luiil\ Nt> 1 not n p p c a n n g . T h c f o l l o w i n g j u d g m e n t was d e l i v e r e d b y . - 8 VASSILIADI-.S, J. : The plaintiff in this action is a Fo reman of Buildings and Works in the employment of the British Ministry of Public Buildings and Works. Regional Headquarters, East Mediterranean Region, Cyprus. 1966 Jan. 24 JOHN DOAN n. LION MEDITERII*· In the autumn of 1964, on expiry of his contract with the Ministry, he packed his personal effects and household utensils, in five cases, which were forwarded, through the Services agencies, back to his home in England, in the usual course. Before his departure from Cyprus, however, the Ministry offered renewal of his service for another " tour ", as he called it, which he accepted. Arrangements were then made for the return of the plaintiff's five cases from Liver pool back to Cyprus. On the 30th October, 1964, the five cases in question, were loaded with otherMinistry stores, on the m.v. "Karnak" belonging to the 2nd defendants ; and a bill of lading for plaintiff's cases was issued in the ordinary course. This bill of lading is before the Court as exhibit 1, and it shows that the cases were to be delivered to plaintiff c/o the Ministry's Regional Headquarters, Famagusta. On the back of this exhibit, there is the " certificate for use at port of discharge ", which shows that the ship arrived at Famagusta on the 16th November, 1964, and commenced delivery of her cargo on the same day. At the same part of the exhibit, there is the rubber stamp signature of the first defendants, confirming that the first report of damage to the goods described in the bill of lading, was made on the same date ; and that the goods had " been received" by them, " without prejudice ,o non-apparent loss or damage", as the printed form reads The plaintiff was called to Famagusta, where he found that three of his five cases, had been duly discharged from the ship, and carried through the Customs to their deslinanation ; but the other two cases were found on the quay, where they had just been recovered from the sea by an Army diver. They had been unloaded on a trailer together with other goods, and while the trailer was still on the quay, it was inadvertently pushed into the water; with all the goods thereon, including plaintiff's two cases. The packages so re covered, were taken to the Customs, where, in the presence of the plaintiff and others, they were examined by a Lloyd's Surveyor for the damage suffered by falling into the sea. A copy of the Surveyor's report is before the Court as exhibit 9 NEAN SHIPPING •\GENCY ΑΝΓ. ANOTHIR 1966 dn _ JOHN DU\S, " l_IO\ M l DIILKRAΜΚΛΝ SHII'I'JSX. X(.|s,<_Y A M I \M>|||I Κ 3, showing under item " f " , on page 1, and the particulars given on the next page, that a numbei of articles in the cases represented a loss amounting to £34 705 mils, while other items were partly damaged, representing dn additional loss o f £18 650 mils The total o f this damage, £53 355 mils, is p l a i n t i f f s claim in the present action O t h u attempts at recovery ol the damage having appa rently failed, the plamtill w i o t e to the tirst defendants, (who had handled, as vVai Dcpaitment and R A I Contiaclois, the M i n i s t r y stores and olhc. goods unloaded from m \ K a m a k , on the ]6th Novemhei 1964) exhibit 4 making a claim Ιοι ihc damage in question In icply the first defendants wiote exhibit 5, dated 21st January, 1965, with copy to the O l h c c i Commanding the Unit where the plaintilf was at tached I hc\ repudiated liability on the grounds stated in then letter, paragraph (
- a)ot which leads \ out boxes only came into our possession Ιοι onwaid despatch alter Ihey had been released f r o m the ( ustoins shed N o o, whcie they had been icmoved on the request ol the R Λ l· Olfieers allci their tail into the sea and dually sui v c \ i d " I he Olhcei Commanding plaintill's Unit wrote to ihe Inst defendants in this connection exhibit 6 dated 25th lanuaiy, !%">, Willi copy to the p l a i n l i l l , citing in paragraph i ol his fettci, Ihe pail o f Ihc 'caigo handling eontiact 1964/65' undei which the fust dclendanls handled Ihe Ministry goods unloa (ltd h o r n the m \ k a m a k , c o n l n m i n g Ihe l a c l , ( i n p u a g i a p h Ί οI the l e l l e t ) t h i i tin Ι ι . ι ί ι ΐ ο η which plamlifl 's cast. ·. w t i c l o u n d , when this fell into II K sea was a liailei opciated b\ 'he defendants I ' e i i l u a l l v Ihc p l u n t i l l consisted his advocate, who wiote to tlie l u s i dclendanls exhibit /, on the 17lh l e b i u a i v , 1965, n u k ' n g ι claim Ιοι this damage A l l e r a reminder as pel exhibil rf , tin InsI dclendanls Kpltcd on Ihc 5 i h M a i c h , 1965, ie,.i tin · , tbtlii\ (exhibit Koj I ' M \ >ui kind m l o i m a i i o n they s,i\ m then l e l l e i our I n n :s onl\ hound In m n i i a e i with the S u u c c · . I O p u l o n n t l u i l t i t k s ο! ι handling agent It is i c g i c l i c d lh.il we musi κ | ΐ ι ΐ l u i b i l i l 1 Ιοι ihc alleged damage, be U I M ihc st,iKs ne\ei ι tmi. into our possesion noi did *\e e\ei siod n h.ivnv aie«.;)hd sjnic " In view of this attitude on the part of the first defendants, plaintiff's advocate addressed himself on the 2nd April, 1965, as per exhibit 2a, to the agents of the ship owners, the second defendants herein Their reply dated 5th April, 1965, is exhibit 2b It is correct—they say—that two eases of the above consignment fell into the sea on 16 11 64, but the acci dent occurred only after the packages had already left the vessel's care, and you realise that someone else, other than the shipowner should be contacted for the settle ment of the claim which, as you say, amounts to £53 355 mils " Appaicntly refernng to exhibit 1 (the bill of lading) these defendants say in their letter, that the Army agents presented to them (ihe second defendants) " clean-receipted B/L duly endorsed by them to the effect that the parcel under subject was received in full and without any remark " These defen dants, morcovei eonfnm by their letter that— ihe two cases in question, fell into the sea with various oilier packages with the* tiailer of IheW D & R A F Contractors (The Bnlish Army Agents mentioned in paragraph 3 arc one and the same firm) when the latter was forced off the quay and into the sea by a third party tiailei (one of the tiailcrs of the Customs Porters Asso ciation)" In these ciietimslances -plaintiff's advocate explained —ihe action was died against both, the shipowners and the Con tractors, to whom the former alleged that they had delivered ihe goods The will, filed on the 5th November, 1965, was duly served on the first defendants at their place of business on the 16th December, 1965 , and on the second defendants on ihe t4ih Decembei Until about 11 30 a m when this ease was called this morning, the fust defendants had neither en tered an appearance, nor were they in Court ; and the claim against them went undefended On the evidence before me, I have no difficulty in finding as a fact thai plaintiff's goods were discharged from the ship on to liailcrs operated by the first defendants as shipping agents handling cargo from mν Kamak, under a contract wilh the BritishWar Dep.irtment While on one of such trailers together with other goods discharged from the same ship, 11 1966 Jan 24 JOHN DOAN Ό LION MEDITERRA NEAN SHIPPING AGENCY AND ANOTHER I%6 Jan. 24 the plaintiff's two cases went into the sea and suffered the damage described and assessed in exhibit 3. JOHN DOAN f,. I.ION ΜΕΙΪΙ'11'KRANEAN SHIPPING, AOFNCV AND The first defendants" allegation, (contained in their letter, exhibit 5) that plaintiff's boxes in question, only came into their possession " after they had been released from the Custom's shed ", is incorrect. Their trailer was at the side o f the ship, ready to receive the goods in the ordinary course o f defendants business as A r m y contractors. A n d in fact, the cases were on the trailer when the latter fell into the sea with all the goods found thereon. If any further confirmation of whose trailer that was, may be found in exhibit 10 ; but even without it, 1 would have no hesitation in finding as above. At the conclusion of the evidence, plaintiff's advocate con ceded, quite rightly in my opinion, that he could not press the claim against the shipowners (the second defendants). The liability of the first defendants, for the damage to plain tiff's goods, when they fell into the sea, with their trailer, o w i n g to these defendants negligence to take proper care of the goods, has, in my opinion, been fully established. The extent o\~the damage, has never been really in question ; although the plaintiff in the witness-box said that in his asse ssment, the damage was C65 to £70. Very rightly, I think, the claim was confined to the amount assessed by Lloyd's Assessor, i.e. £53.355 mils. There will be judgment for plain t i f f against the first defendants, for £53.350 mils. The claim against the second defendants shall stand dismissed. As regards costs, I take the view that the second defendants are entitled to their costs against the plaintiff. A n d that thep l a i n t i f f is entitled t o his costs against the first defendants, plus the amount o f costs to be awarded against him in favour o f the second defendants. It seems clear to me, on the evidence, that the refusal o f the first defendants to admit their liability and their effort to avoid part o f the facts on which the claim was being-made, (namely that the goods were damaged while on their trailer) was the cause o f this litigation. A n d it also seems to me that p l a i n t i f f d i d not act unreasonably in j o i n i n g the second defen dants, in the circumstances. A t the time o f the filing οι the action, his advocate was not in possession o f the documents supplied by the* second defendants at the trial, showing the correct position, as far as facts were concerned. In these cir cumstances, I see no reason why the p l a i n t i f f should bear 12 the loss of the costs awarded to the second defendants against him. I am strengthened in this view by the judgment of Mackenna J. in Bowmaker(Commercial) Ltd., v. Day and another, Burt, Third Party, And W. Harold Perry Ltd., Fourth Party, reported in |1965], 1 W.L.R 1396, where the learned Judge had to consider the question of costs arising in a case with several litigants, and conflicting interests. In the result there will be judgment for the plaintiff against the first defendants for £53.350 mils with £24.800 mils costs (including £10 awarded in favour of the second defendants). Action against the second defendants dismissed, with £10 costs payable by the plaintiff. Judgment and order for costs accordingly. 13 1966 Jan. 24 JOHN DOAN P. LION MEDITERRANEAN SHIPPING AGENCY AND ANOTHER