clr/1977/1977_1_143.pdf

(1969)1 C.L.R. 578 distinguishable on the facts. Admiralty—Claim for delivery of cargo—Interim order directing delivery of cargo to plaintiffs. By means of this application the applicants-plaintiffs applied for: 20 25 (

1. a)An order of the Court ordering the defendant ship to deliver immediately to them the cargo of Soya Bean meal of 101.053 bags and weighing 5.062 tons and 730 kilos; (
2. b)An order of the Court entitling and/or authorising the plaintiffs to receive and/or take delivery of the said cargo and/or remove the said cargo from the defendant ship. The plaintiffs claimed to be the owners and persons entitled 143 TAFCO (NO. 1) v. SHIP "LAMBROS L" 1977 Febr. 24 TAFCO (NO. I) v. SHIP LAMBROS L' to the said cargo whose value was U.S. dollars 1,505.000; and that they settled its value which included the prepaid freight which amounted to U.S.dollars 155.000.Theport of disoharge was the port of Latakia in Syria where the defendant ship arrived on November 12, 1976; but after staying there for 25 5 days she left the port without discharging the cargo; and came to Cyprus where she was arrested pursuant to an order of arrest in another action. When the plaintiffs discovered her presence in Cyprus they filed an action daiming U.S. dollars 1,800.000 as damages for breach of contract and they, also, ) 0 applied and secured a warrant for her arrest. In support of their above application the applicants-plaintiffs mainly argued that they were the owners of the said cargo— and this was not disputed by anybody; that the freight in respect thereof had been prepaid; and that the cargo was of 15 perishable nature and has already been on board for a considerable time and if it continued to be on the ship till the determination of the action it would perish or become unmerchantable and the plaintiffs would suffer irreparable damage since the ship herself does not appear to have the value of the 20 goods. The main grounds of opposition were that theowners had no cause of action against the defendants, there were no serious questions to be tried, there was no probability that the plaintiffs were entitled to any relief against the defendants and that 25 theyhad a lienon thecargofor thedemurrage. Held,

(1)that any further delay in the discharge of the cargo will cause irreparable damage toits owners and the persons entitled thereto, a fact which is not disputed; that justice will be done if before the said cargo is delivered to the appli- 30 cants a guarantee is given by them for any possible claim that the defendant ship mayhave in respect of demurrage or otherwise; that if a satisfactory guarantee is given to the defendants in lieu of the cargo, the ends of justice will be served equally well, if not better, as the destruction of this perishable cargo 35 might eventually leave the defendant ship with a valuelesssubject of its alleged lien; that the discharge of the cargo will give to the defendant ship the opportunity to obtain more easily its release.

(2)That there is a serious question to be tried at the hear- 40 ing and a probability that the plaintiff is entitled to relief and that unless the order applied for is granted it will be difficult 144 5 * 977 Febr^24 TAFCO ( N 0. 1) v. SHIP ' "LAMBROSL' Application granted. or impossible to do justice at a later stage; and that as section 32 of the Courts of Justice Law, 1960 (Law 14/60) can be successfully invoked an order as per the application is made which will take effect upon the plaintiffs furnishing a security in the sum of U.S.dollars 220,000 (Michaelv. BrevinosLtd.,

(1969)1C.L.R. 578 distinguishable on the facts). Cases referred to: Michael v.Brevinos Ltd.

(1969)1 C.L.R.

1. 10 Application. Application by plaintiffs for an interim order ordering the defendant ship to deliver immediately to the plaintiffs the cargo of Soya bean meal, in an admiralty action whereby the plaintiffs claimed thesum of 1,800.000U.S. 15 dollarsoritsequivalentinCypruspounds. X. Syllouris, for the plaintiffs. E.Montanios,for the defendant. Cur.adv.vult. Thefollowing rulingwasdeliveredby:20 A.LOIZOU,J.:Theplaintiffs-applicants claim to be the owners and persons entitled to thecargo on board thedefendant ship "Lambros L" now in Limassol Port, of 101.053 bags weighing 5,062 tons and 730 kilos of Soya bean meal of a value of U.S.dollars 1.505.000by virtue 25 of the indorsement of the bills of lading Nos. 1 and 2 which were issued in respect of the said cargo on 15.
3. The plaintiffs-applicants settled its value which included theprepaid freight which amounted to U.S.dollars 155.
4. 30 According to the said bills of lading, the port of discharge was Latakia in Syria where the defendant ship arrivedon 12.11.
5. A notice of readiness (exh. 2) was then given by the master on the 15th November, 1976 to and accepted by the plaintiffs on the same day. After the 35 defendant ship remained there for about 25 days, she left "* theport of Latakia on orabout the 10th December,
6. without discharging the plaintiffs' cargo and came to Limassol where she was arrested pursuant to an order of 145 1977 Febr. 24 TAFCO (NO. 1) v. SHIP LAMBROS L* arrest issued against her in Action No. 245/76 of the Supreme Court of Cyprus inits admiralty jurisdiction, on the application of aCypriot firm, theplaintiffs in thesaid action, and the said order of arrest is still in force. Theplaintiffs havingdiscovered herpresencein Cyprus filed the present action in rem, on the25th January, 1977 claiming the amount of U.S.dollars 1,800,000or itsequivalent in Cyprus Pounds, as damages for breach of contract and/or bills of lading, etc., and further and in the alternative, the delivery of the aforesaid cargo to them, with damages, etc. On the same day they applied andsecured a warrant for the arrest of the defendant ship and thecargo onboard. Whenthe casewasfixed so that cause might be shown against the continuance in force of the order of arrest madeex parte,counsel for the respondentdefendant ship appeared and asked for a month's time so that they would prepare allnecessary documents and affidavits which might also involve the obtaining of expert advice and opinions from overseas, and the hearing was fixed on the 18th February,
7. On the 15th, however, of February, the plaintiffs-applicants filed the present application applying for interim and/or temporary order and/or directions asfollows: "A. An order of the Court ordering the defendant ship "LAMBROS L" and/or her master and/or her 25 owners and/or all persons concerned to deliver immediately to the plaintiffs the cargo of Soya been meal 101.053bags and weighing 5.062tonsand730 kilos. B. An order of the Court entitling and/or autho- 30 rising the plaintiffs to receive and/or take delivery of the said cargo and/or remove the said cargo from the said ship "LAMBROS L" and/or otherwise. C. Further or alternatively any other or further order or directions or remedy as may be just. 35 D. Costs of this application". The application is based on the Cyprus Admiralty Jurisdiction Order 1893, rule 205, section 32 of the Courts of JusticeLaw, 1960,Law 14/60 and theInherent Power of the Court and the General Law and Practice. 40 146 10 15 20 The main ground upon which the plaintiffs-applicants basetheirsaid applicationis thefact thatthey aretheown| ers of the said cargo—that is not disputed by anybody— 1 the freight in respect thereof was pre-paid and the said ι 5 cargo is of perishable nature, and has already been on 1 board for a considerable time and if it continues to beon theshiptillthe determination of theactionitwillperishor become unmerchantableand theplaintiffs will suffer irre­ parable damage since the ship herself does not appear to 10 havethevalue of thegoods. They further state in para. 7 of their affidavit that: 15 20 25 30 35 "Although therecan benojustification or reason for the refusal or failure of the defendant to deliver the said cargo to theplaintiffs theplaintiffs areprepared togiveanyguaranteeorsecurity thatthe Honourable Court mightconsider reasonable for securing theim­ mediate delivery of the said cargo to the plaintiffs". The mainground of oppositionis thattheowners have no cause of action against the defendants, there are no serious questions to be tried at the hearing of theaction and there is no probability that plaintiffs are entitled to any relief against thedefendants and that they have alien on the cargo for the demurrage which under clause 5 of the charterparty dated 27.8.1976 between the charterers and the owners, the demurrage payable is at the rate of U.S.dollars2,800perday whichwas payable underclause 32 thereof, every five days. The total amountclaimed for demurrage including another ten days from to-day which might take for the discharge of thecargo in case thepresent application is granted, is in the region of U.S. dollars 272,000, whereas theplaintiffs-applicants have offered to give a security of U.S. dollars 200,000 because, as they say, under clause A of the Additional Clauses of thebill of lading, no demurrage was agreed to be paid, the rate of demurragebeingleft blank, andin anyevent it is stated in the said clause that "the demurrage in respect of each parcel shallnot exceed its freight" which is stated to bein theregion of U.S.dollars 150,
8. Having heard argument on both sides and having con40 sidered what, in my opinion,is just and equitable in the circumstances,I have cometo theconclusion that theap147 1977 Febr. 24 TAFCO (NO. 1) v. SHIP LAMBROS L' 1977 Febr. 24 TAPCO {NO. 1) v. SHIP .AMBROS L' plication should begranted as perparas, (a) and (b) hereof, as any further delay in the discharge of the said cargo will cause irreparable damage to its owners and the persons entitled thereto, a fact which isnot disputed andjustice will be done if before the said cargo is delivered to 5 theplaintiffs-applicants, a guarantee is given by them for any possible claim that the defendant ship may have in respect of demurrageorotherwise. X have followed this course, because, this is not a case whereI should, instead, order theappraisal and saleof the 10 said cargo pendentelite, a course which, inevitably, will increase expenses and has inherently therisk of beingsold at a price detrimental to all concerned. Furthermore, I haveconsidered whether I am entitled,inthelight of what was stated in the case of FrixosMichaelv.BrevinosLtd. 15

(1969)1C.L.R. p.578, to order the delivery of thecargo in question to one of the parties, namely the plaintiffs. My answer is in the affirmative asBrevinoscase isdistinguishable on the facts. There, by the granting of the order enabling one of the parties (the plaintiffs) to take 20 possession of the machinery the subject matter of theproceedings, the trial Judge in effect disposed in the interlocutory proceedings of oneof the mainissuesof the action, namely the possession of the machinery in question. Here, there is no such issue, except that the possession of the 25 cargo in question is claimed merely because of an alleged Hen thereon and by way of a security of their claims for demurrage and otherwise. If, therefore, a satisfactory guarantee is given to the defendants in lieu of the cargo, the ends of justice willbe 30 served equally well, if not better, as thedestruction of this perishable cargo mighteventually leavethedefendant ship with a valueless subject of its alleged lien. Furthermore, the discharge of thesaid cargo will give to the defendant ship the opportunity to obtain more easily its release, be- 35 cause if the cargo is delivered toits owners,the amountof £.600,000.- fixed by this Court in its order for the arrest as the amount for which if a security is given on her behalf the Marshal will release the ship, will have to be reduced considerably as from that amount, the value of the 40 goods, as at the timeof delivery, will havetobededucted, but this, will have to be decided at the proper time and 148 10 15 when the Court is moved for that purpose. Being further satisfied that there is a serious question tobe tried at the hearing, aprobability that theplaintiff is entitled torelief, and that unless this order is granted it will be difficult or impossible to do justice at a later stage and as section 32 of the Courts of Justice Law, 1960 can successfully bein­ voked, I hereby make an order as per paras. A and Β of the application against thedefendant ship, her master,her owners andall persons concerned.This ordertotake,how­ ever, effect upon theplaintiffs furnishing a security in the sum of U.S. dollars 220.000 or the equivalent in Cyprus Pounds, to the satisfaction of the Registrar of this Court and valid until the final determination of this action for the satisfaction of any judgment to be given in favour of the defendant ship or its owners against the plaintiffs. Costs of this application against the defendant ship. Application granted with costs. 149 1977 Febr. 24 TAFCO (NO. 1) v. SHIP LAMBROS L'