1977 Febr. 28 [MALACHTOS, J.] — ESTA SHIPPING COMPANY LIMITED, ESTA SHIPPING CO. LTD. v. V. Plaintiffs, NIKIFOROS A. M. LASKOS NIKIFOROS A.M. LASKOS, Defendant. (Admiralty Action No. 34/75). Evidence—Admiralty Action—Evidence given at hearingof interlocutory applicationwhich has been withdrawn—Whetherit can beconsidered as evidenceat the trialof theaction. In the course of the trial of this action counsel for the defendant sought to put in evidencethe evidence given by a cer5 i. tain Rizzouto who was called as a witness and gave evidence on the 29th August, 1975 at the hearing of an interlocutory application which was withdrawn and dismissed, half way through its hearing. Counsel for the plaintiff objected to the above course. 10 Held,dismissing the application, that this being a civil case the said evidence could be considered as evidence given at the trial of the action with the consent of the other side, but since the other side has objected the Court has no power to order that the evidence given in an application which was withdrawn 15 should be considered as evidence given in the present proceedings; and that, accordingly, the application will be dismissed. (The Ownersof theSteamer"JanetQuinn" v. The Owners of the Motor Tanker "Forest Lake" [19661 3 All E.R. 833 distinguished). 20 Application dismissed. Cases referred to: The Ownersof the Steamer "Janet Quinn" v. The Owners of the Motor Tanker "ForestLake" [1966] 3 All E.R.
- Application. 25 Application bydefendants toconsider asevidencegiven at thetrial of the action theevidence of a witnessgivenin an interlocutory application which was withdrawn. 150 L. Papaphilippou,for the plaintiffs. G.Mitsides,for the defendant. 5 10 15 20 25 Thefollowingrulingwasdeliveredby:MALACHTOS, J.:At thisstageof theproceedingsthedefendant seeks to put in evidence the evidence given by a certain Rizzouto who was called as a witness and gave evidenceonthe29th August, 1975 in an application filed, together with the filing of the action by and on behalf of the plaintiff company for an order of the court ordering thedefendant todeliver forthwith totheplaintiff company the ship "BARBARA S" flying theCyprus flag, which is berthed at NaplesinItaly for safekeeping till thedetermination of the actionand/or till further order of this court. Half way through the hearing of the application and, particularly, on the 2nd October, 1975, Mr. Papaphilippou, counsel for the plaintiff company, madethefollowing statement: "In view of the fact that evidence has been adduced on the merits and considerable time of this court has been expended, and such evidence is necessary to be adduced on our side, I think it would have been a better course in theinterests of justice for both sides tofight the case on the merits and we have agreed with my learned friend to have this application withdrawn with costs in cause and apply for a speedy trial of the case on themeritsM. AndMr.Mitsidesstated that,thatwasso. This court then made the order that the interlocutory application filed on the 24th June, 1975,was dismissed as withdrawn and the costs were ordered as costs in cause. 30 Anorder then wasmadeastothetimefor filing thepleadingsandtheactiontookitsusualcourse. So,weare faced nowwith an application that evidence piven in an application which was withdrawn to be considered as evidence given at the trial of the action. This 35 being a civil case it could be done, of course, with the consent of the other side, but since the other side has obiectedI donotthink that thecourthas anvpowertoorder that the evidence eiven in an application which waswithdrawn should be considered as evidence given in the pre40 sent proceedings. 151 1977 Febr. 28 ESTA SHIPPING CO. LTD. V. NIKIFOROS A. M. LASKOS 1977 Febr. 28 ESTA SHIPPING CO. LTD. v. NIKIFOROS A. M. LASKOS In his effort to support his case counsel for the defendants cited the case of The Owners of theSteamer "Janet Quinn" v. The Owners of the Motor Tanker "Forest Lake" [1966] 3 All E.R.
- This case is clearly distinguishable from the case in hand. The application was granted as the defendants did not oppose it but, on the contrary, they supported it. In the said case during the hearing of a collision action involving foreign ships, the witnesses were masters, first officers and other members of the ship's companies concerned, including the master of a third vessel. Certain of these witnesses had their evidence taken fully and were cross-examined, and the case was adjourned part heard. The trial judge fell ill and certain evidence was then taken on commission, which was also tested by cross-examination before an examiner. The trial judge retired before the adjourned hearing was resumed and another judge was appointed, pursuant to R.S.C.Ord. 5,r.8
(2), totry thecasedenovo.Onanapplication on a summons for directions that, on the new trial, the evidence already given at the part-heard proceedings should be used on theground not only of the savingof expense but also on the ground of inconvenience to thewitnesses already called and the shipping companies who employed them, it was held that the application would be granted. 5 10 15 20 This was a summons for directions heard in open court inwhich the applicants,theplaintiffs, ownersof thesteamer Janet Quinn, with the support of the defendants, the owners of the motor tanker, Forest Lake, applied for an order that the action tried between the parties before 25 Hewson J., assisted by Capt. D. Dunn and Capt. D.A.G. Dickens, Trinity Masters, on Dec. 14, 15, 16 and 20, 1965, at which stage evidence had been given by the master of the Janet Quinn, the master and the second officer of the Forest Lake, and the chief officer of the Har- 30 pula, a British Shelltanker, be continued. Hewson, J., became ill before the trial could be continued after the Christmas vacation, and inJanuary, 1966,evidenceof the chief officer of theJanet Quinn wastaken on commission. Hewson, J., retired on Sept. 30, 1966, and on Oct. 4, 35 1966, Sir Jocelyn Simon, P., pursuant to R.S.C. Ord. 4, r.8
(2), made an order that the trial be heard de novobefore Kanninski, J. The collision between the Janet Quinn and the Forest Lake, both of which were foreign ships, 152 20 took place on Aug. 23, 1963, and the chief officer of the Janet Quinn had died since giving evidence on commission. SHIPPING Therefore, the present application is dismissed. co. LTD. V. 5 Needless to say that the witness who gave evidence may becalled as witness in thepresent proceedings. NIKTFOROS A. M. LASKOS Application dismissed. 153