clr/1976/1976_1_132.pdf

(1)The object of the appellants (plaintiffs) in seeking to prevent any dealing with the ship by means of an order under s. 30 was the same as the one for which they had accepted the security in Germany in lieu of the arrest of such Ship, namely to be in a position to levy execution against her in case they obtained judgment in Cyprus against the respondents (defendants) in respect of the same cause of action for which they had instituted the proceedings in Germany and in relation to which the security was furnished.

(2)Plaintiffs had thus sought to be placed in an overadvantageous position by obtaining in Cyprus an order under section 30 of Law 45/63. The said order was properly discharged by the trial Judge. Appeal dismissed with costs. Cases referred to: Beneficial Finance Corporation, Ltd. v. Price [1965] 1 Lloyd's Rep. 556; HadjiAthanassiou v. Parperides and Others

(1975)I C.L.R. 401; Karydas Taxi Company Ltd. v. Komodikis

(1975)1C.L.R. 321; In Re F. (a minor) [1976] I All E.R. 417; The Christiansborg [1885] 10 P.D. 141 at pp. 155-156. Appeal. Appeal by plaintiffs against the judgment of a Judge of the Supreme Court (Hadjianastassiou, J.) dated the 22nd December, 1975), (Admiralty Action No. 21/75) whereby an oider under s. 30 of the Merchant Shipping (Registration of Ships, Sales and Mortgages) Law, 1963 (Law 45/63), prohibiting any dealing with the Ship "Ismini", made on the 6th May, 1975 was discharged. M. Vassiliou, for the appellant. E. Psytlaki (Mrs.), for the respondents. 40 Cur. adv. vult. 133 Co. L T D . 1976 April 13 REEDEREI SCHULTE A N D BRUNS BALTIC SCHIFFAHRTS K. G . O F BREMFN r. 1SMIM SHIPPIM· Co. L T I \ The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: This is an appeal against the discharge*, on December 22, 1975,by a Judge of this Court, of an order made by himexparte, on May6, 1975, under section 30 of the Merchant Shipping (Registration of Ships, Sale and Mortgages) Law, 1963(Law 45/63). On the same day when the oider was made there wasfiled an admiralty action, No. 21/75, in which the appellants were claiming, interalia,damages for thesinking oftheii ship "Annemarie Schulte" after a collision with the ship "Ismini" which belonged to the respondents. In the alfidavit in support of the ex parte application for an order under section 30it was stated that the "Ismini" wasthe only property owned by the respondents and that if they wde to be left free to dispose of it the appellants would not be able to recovei any damages awarded to them in respect of the sinking of their ship. It isclear, therefore, that theobject for which theorder under section 30wassought wasto ensure that, in case ofa successful outcome of the said admiralty action, execution could be levied 20 against the "Ismini", as property of the respondents. On August 28, 1975,an application was filed, by the respondents, forthedischarge ofthe order madeasaforesaid under section 30; in support of such application there was filed an affidavit stating, interalia, that after theaforementioned collision 25 the appellants had instituted proceedings in Bremen, in the Federal Republic of Germany, and had applied foi the arrest of the "Ismini" whilst it was in Germany; eventually, an agieement wasreached in Geimany. on December 23, 1974,bymeans of which it was arranged that the respondents, as owneis of 30 the "Ismini", would furnish security for the sum of D.M. 600,000; this amount was, according to the respondents, equal to the market value of the "Ismini" at the material time; so. on such security for D.M. 600,000 having been furnished, the "Ismini" wasreleased; and it is to be noted, too,that in return 35 for the said security it wasagreed that execution would not be levied, at any time, against the "ismini". In an affidavit which was filedby the appellants, in opposing * Reported in

(1975)1 C.L.R.433. 134 15 the application for the discharge of the oider under section 30, it was denied that the value of the "Ismini" was only D.M. 600,000; but, it was added that the affiant was not in a position to state the exact value of the ship. 5 The learned trial Judge, after hearing the parties and having reviewed fully in his judgment both the law and the facts, reached the conclusion that the granting of the order under section 30 had placed the appellants in an over-advantageous position and decided, therefore, in exercising his discretion, to discharge 10 such order. The said section 30 reads as follows :- 15 20 " The Supreme Couit may, if the Couit thinks fit (without piejudice to the exercise of any other power of the Coutt), on the application of any interested person make an ordei prohibiting for a time specified, any dealing with a ship or any shaie therein, and the Couit may make the oider on any terms or conditions the Court may think just, oi may refuse to make the order, or may discharge the ordet when made, with oi without costs, and generally may act in the case as the justice of the case requires; and the Registrar, without being made a party to the pioceedings, shall on being served with an official copy thereof obey the same." Our own case-law has not yet fully defined the situations in 25 which an order under section 30 may be made in the exercise of the lelevant discietionary powers; but, from what is stated in the volume on the English Merchant Shipping Acts in the Biitish Shipping Laws seiies (vol. 11, paia. 57, pp. 23-24) it appears that an order under the corresponding section of the 30 English legislation is made quite larely and only in rathci special circumstances. It is useful to refer, in this respect, to BeneficialFinance Corporation, Ltd. v. Price, [1965] 1 Lloyd's Rep. 556, where Moifitt, J. said (at pp. 561-562) in connection with a provision 35 similai to oui own section 30:- 40 " The procedure undei Sect. 30 primafacie is intended to be summary, the order being temporary in natuie, no doubt taking into account the probable rights of the parties to adjust their peimanent lights by other procedures. The foundation of the oidei is to protect dealings for a specific 135 1976 April 13 REEDEREI SCHULTE A N D BRUNS BALTIC SCHIFFAHRTS K.G. O F BREMEN v. ISMINI SHIPPING Co. L T D . 1976 April 13 REEDEREI SCHULTE A N D BRUNS BALTIC SCHIFFAHRTS K.G. O F BREMEN v. ISMINI SHIPPING Co. L T D . time but leaving the Court to impose conditions which primafacie protect the person whose dealings aie prohibited and confine the effect of the order so it will not put the applicant in an over-advantageous position." It is with the foregoing in mind that we have to cany out 5 out task of leviewing on appeal the exercise in this case of the judicial discretion of the trial Judge; and regaiding our powers, in this respect, we might usefully refer to two recent decisions of this Court, namely HadjiAthanassiouv. Parperidesandothers,

(1975)1C.L.R. 401,and Karydas Taxi Company Ltd. v. Komo- 10 dikis,

(1975)1 C.L.R. 321, as well as to In Re F. (a minor), [1976] 1All E.R.

1. We are of the opinion that the trial Judge has quite lightly based his decision on the fact that the making of an order under section 30 had placed the appellants in an over-advantageous position. 15 We would like to stress, in this respect, that the result of the furnishing of security for D.M.600,000, as agreed between the parties in Geimany, was that the appellants did accept such security instead of ensuring, through the anest of the "Ismini", 20 that they would be in a position to execute against her any judgment that they might obtain against the respondents in relation to the sinking of their ship "Annemarie Schulte" in a collision with the "Ismini". Regarding the effect in law of the above arrangement it is 25 useful to lefer to The Christiansborg,[\%%5] 10P.D. 141,where Fry, L.J. said (at pp. 155-156):"What is the effect of giving bail? It seems to me that bail is the equivalent of the res The result of the giving of bail isthe release of the ship. Now, what isthe meaning 30 of leleasing a ship undei the circumstances? It appears to me that the meaning of it is, that she is released from all rights and claims against her in respect of the collision, which is the cause for which her owners have been compelled to give the bail." In the same case it wasstressed by both Fry L.J.and Baggallay L.J. in then judgments that there was no difference between bail being given by order of a Couit or by agreement between the parties. 136 35 Counsel for the appellants has argued that the Christiansborg case is distinguishable from the present one; we do agree that it is distinguishable as regards the factual context in which it was decided; but, the above quoted exctract from the judgment of Fry L.J. expounds a legal propositionwhich is,in oui opinion, quite relevant to the piincipal issue under consideration in the present case. 1976 April 13 REEDEREI SCHULTE A N D BRUNS BALTIC SCHIFFAHRTS K. G. O F BREMEN 15 20 The object of the appellants in seeking to prevent any dealings with the "Ismini", by means of an order undet section 30, was the same as the one for which they had accepted the security of D.M. 600,000 in Germany in lieu of the arrest of such ship, namely to be in a position to levy execution against her in case they obtained judgment in Cyprus against the respondents, in admiralty action No. 21/75, in respect of the same cause of action for which they had instituted the proceedings in Germany and in relation to which the said security was furnished; thus, they, indeed, had sought to be placed in an οvei-advantageous position by obtaining in Cyprus an ordei under section 30 of Law 45/
2. Consequently, we are of the view that the order undei section 30 was properly discharged by the trial Judge and, therefore, this appeal fails and has to be accoidingly dismissed, with costs. Appeal dismissed withcosts. 137 v. ISMINI SHIPPING Co. L T D .