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1977 April 26 PHOENIX MARINE CONSULTANTS LTD. v. SPENMAN MARITIME CO. LTD. [A. LOIZOU, J.] PHOENIX MARINE CONSULTANTS LTD., Applicants, v. SPENMAN MARITIME CO. LTD., Respondents. (ApplicationNo. 20/76). Admiralty—Sale of ship—Application for order directing saleof ship in executionofa judgment obtainedat the District Court —Ship not underarrestand noorder for arrest sought—Applicationrefusedbecause beforeanorder forsaleismadetheship must be underarrest—Moreover no statutoryor common law 5 provision existing,empoweringthe Court to ordersalein the circumstances appliedfor and no writ of execution sought— Sections29 and 81 of the MerchantShipping(Registration of Ships, Sales and Mortgages) Law, 1963, rules 168-171 and 203 of the CyprusAdmiralty Jurisdiction Orderand s. 14 of ]Q the CivilProcedure Rulesnot applicable. Ship—Sale of—See,also, under "Admiralty". On July 6, 1976, judgment was given by the District Court of Nicosia in Civil Action No. 1803/76, in favour of the applicants, as plaintiffs, and against the respondents, as defendants, for the amount of £761.967 rails. The respondent company has paid nothing against this amount and had noproperty in Cyprus. ]5 By means of an ex parte application the applicants applied to this Court for an order directingthe sale of the ship "Despi- 20 na S", which belonged to the defendants and was registered under the Cyprus flag; for an order appointing the Marshal to proceed with the sale; and for an order that the above judgment debt be satisfied out of the proceeds of the sale. The application was based on section 29 of the Merchant 25 Shipping (Registration of Ships, Sales and Mortgages) Law, 1963 (Law 45/63) on rules 168-171 and 203 of the Cyprus Admiralty Jurisdiction Order, 1893 and on section 14 of the Civil Procedure Law,Cap.6. 218 The ship in question was not under arrest and no order for its arrest, appraisement and sale was sought by means of the above application. 10 Held, dismissing the application, that before an order for sale will be made the res must 'be under arrest; that as this Court has not been able to trace any provisions whether statutory or at common law empowering it to order the sale of the ship in the circumstances applied for; and that as the ship in question is not under the arrest of the Court and its arrest is not being sought, the present application will, accordingly, be dismissed. (Sections 29 and 81 of Law 45/63, rules 168171 and 203 of the Cyprus Admiralty Jurisdiction Order, 1893 and section 14 of the Civil Procedure Rules not applicable). 15 Application dismissed. Cases referred to: TheJamesW.Elwell[19211P.351; TheJoannis Vatis(No.2) [1922]P.213. Ex parte application. 20 25 30 35 Ex parteapplication for (

  1. a)an order directing the sale of the ship "DESPINA S" (
  2. b)an order appointing the Marshal to proceed with the sale and (
  3. c)an order that an amount of £761.967 milswith interestbe satisfied outof theproceedsof thesale. L. Papaphilippou, for theapplicants. Cur.adv.vult. Thefollowing decisionwasdeliveredby:A. LOIZOU, J.: By this ex-parteapplication the applicants apply for:"(
  4. a)An order directing the sale of the ship 'DESPINA S'which belongs to the defendants and isregisteredunder Cyprusflag. (
  5. b)An order that out of the proceeds of the sale of the said ship an amount of £-761.967 mils with interest on £50.482 mils @ 9%per annum from 12.3.74, and on £49.740 mils@ 9%perannum from 26.3.74 andon £661.729 mils @ 9% per annum from 25.6.74 plus 219 1977 April 26 PHOENIX MARINE CONSULTANTS LTD. v. SPENMAN MARITIME CO. LTD. April 26 PHOENIX MARINE CONSULTANTS LTD. v. SPENMAN MARITIME CO. LTD. £36.050 mils adjudged costs and the costs of this application together with the costs of the sale of the said ship be paid out of the pro­ ceeds of the sale of the said ship. An order appointing the Marshal and/or some other suitable person to proceed with the sale of the said ship and execute all necessary acts and deedsin respect thereof including the sign­ ing of abillof sale. 5 The costs of this application and the costs of 10 saleof thesaid ship". By this application, in effect an originating application, the applicants seek the help of this Court in the exercise of its admiralty jurisdiction, to execute a judgment obtain­ ed at the District Court of Nicosia, and the reason for 15 seeking the assistance of this Court, is because the pro­ perty uponwhich execution is sought tobelevied,is aship registered in Cyprus and belonging to the respondents, a company also registered inCyprus. The application is based on section 29 of theMerchant 20 Shipping (Registration of Ships, Sales and Mortgages) Law, 1963, (Law 45/63), on rules 168. 169, 170, 171 and 203 of the Cyprus Admiralty Jurisdiction Order, ί 893. and on section 14 of theCivil ProcedureLaw, Cap. 6. The facts relied upon as set out in the affidavit accom­ panying this application,areverysimple. κ On the 6th July, 1976, judgment was given by theDis­ trict Court of Nicosia in Civil Action No. 1803/76, in favour of the applicants, as plaintiffs, and against the res- 30 pondents, as defendants, for the amount and interest as per para, (
  6. b)of the prayer hereinabove set out as against which nothing was paid by the respondent company who owe the whole amount thereof. As further asserted in the affidavit, the respondent company has no property in Cy- 35 prus. Section 29 of our Law which is identical to section 29 of the English Merchant Shipping Act of 1894, follows:"29. Where any Court, whether under thepreceding 220 25 5 10 sections of this Law or otherwise, order the sale of any ship or share therein, the order of the Court shall contain a declaration vesting in some person named by the Court the right to transfer that ship or share, and that person shall thereupon be entitled to transfer the ship or share in the same manner and to the same extent as if he were the registered owner thereof; and the Registrar shall obey the requisition of the person so named in respect of any transfer to the same cxtent as if such person were the registered owner". This is a section that comes under Part VI of the Law dealing with 'Transfers and Transmissions". It empowers a Court where it orders the sale of a ship or share therein, to include in such order, a declaration giving to a person 15 named therein, the right to transfer that ship or share, in the same manner and to the same extent as if he were the registered owner thereof. But for this section to apply, there must exist a situation whereby the Court is satisfied that it has power to make an order for sale, either "under 20 the preceding sections of the law or otherwise". The term "otherwise" by itself, does not give to this Court a power to order the sale of a ship and appoint a person to effect the necessary declarations. It is a generic term and one has to look behind it and find if there are any legal provi25 sions whether statutory or at common law, whereby a Court has power to order the sale of a ship in the circumstances set out in this application and in particular when such shipis not under thearrest of theCourt. Rules 168, 169, 170 and 171 of the Admiralty Order 30 of 1893relate to execution of judgments. Rule 168 makes provision for the mode in which an application can be made for obtaining the execution of a judgment or order by sale of movable property or by attachment of movable property. 35 Rule 169 provides that every writ of execution by the sale of property shall direct in what manner the moneys to beraised under thewrit shall bedisposed of. Rule 170 requires that in the writ there must be a statement as to the amount due under the judgment and a 40 direction to the Marshal to levy the same together with in221 1977 April 26 PHOENIX MARINE CONSULTANTS LTD. v. SPENMAN MARITIME CO. LTD. 1977 April 26 PHOENIX MARINE CONSULTANTS LTD. v. SPENMAN MARITIME CO. LTD. terest thereon, at therate of 9%per annum from thedate of thejudgment and together with the costs of execution. Rule 171 provides that every writ of execution for the recovery of moneyis to be addressed to the Marshal who, after execution, shall return it to the Court endorsed with a statement of what has been done thereunder and of the amount of the costsincurred in such execution. 5 Theaforesaid rules correspond to Order 41 of theCivil Procedure Rules whichdealswith theexecution byseizure and sale of movableproperty. In England, there is autho- 10 rity to the effect that judgment creditors can proceed to levy execution on aship by a Sheriff's writ of fieri facias, (see The James W.Elwell[1921] P.351 and TheJoannis Vatis (No. 2) [1922] P. 213). But I need not pronounce on thiscourse,as I amnot asked to do so.In fact, learned 15 counsel for the applicants has argued on the supposition that if a writ of movables was to beissued in the District Court and the bailiff was consequently to visit the offices of thejudgment-debtor or was to obtain information from the office of the Registrar of Ships as to the whereabouts 20 of the ship and it wasfound that the ship wasin a foreign port, the bailiff would return thewrit unexecuted because therewould benothingin thiscountry tobeseized. Onthe other hand, he argued that if the ship is in a Cyprus port the bailiff may not be empowered to seize it, appraise it 25 and sellitbecause of rules 74-77 of theCyprus Admiralty Jurisdiction Orderof 1893.Consequently,itwasargued that theproper person under theRulesistheMarshalwho dueto his experienceandhispostis theonlyqualified persontoperform thisduty.I amnot, however, askedtoissue 30 a writ of execution to be executed by the Marshal who possesses, as saidbycounsel,thenecessary experienceand authority by virtueofhispost. WhatI am asked,istogive authority to theMarshalto sellthe shipin a manner unrelated with the execution of a writ for the saleof movables 35 which execution inherently has in it theelement of theseizureof themovabletobesoldthereunder. Rule 203 provides that a party desiring to obtain an order from the Court or a Judge shall ordinarily make oralapplication for thesame, but theCourt or Judgemay direct that the application bemade in writing. 222 40 The last section relied upon is section 14 of the Civil Procedure Law, Cap. 6. It contains methods of execution. Under sub-section

(1)thereof, any judgment or order of a Court directing payment of money may, subject to the provisions of the Law, be carried into execution by all or anyofthefollowing means: "(
  1. a)by seizure and sale of movable property; (
  2. b)bysaleof or making thejudgment a chargeon immovable property; 10 (
  3. c)by sequestration of immovable property; (
  4. d)by attachment of property under Part VII of this Law;or (
  5. e)imprisonment of the debtor under Part VIII of thisLaw". 15 I need not refer to sub-sections
(2),
(3)and
(4)of the Law, as they have no bearing whatsoever in the present case. If, however, a Court was to act on the powers given to it by section 14
(1)and in particular paragraph (a) thereof, the authority derived therefrom for the sale of 20 movable property, is only consequent to the seizure of such property which, again, is not what is sought by the applicants in thiscase. Rightly, in my view, rule 74 of the Admiralty Jurisdiction Order has not been invoked by the.applicants as it 25 could not help them at all. This is a rule empowering the Court "to appoint the Marshal of the Court or any other person or persons to appraise any property under the arrestof theCourt or to sellanysuchproperty either withor without appraisement or to remove or inspect and report 30 on any such property or to discharge any cargo under arrest on board the ship".It isclear that an order under this rule is inrespect of "any property under the arrest of the Court"whichisnotthecase. Furthermore, rule77 empowerstheCourt todeduct and 35 retain from the money realised by the sale "of any property under the arrest of the Court", the amount of all fees, costs, charges and expenses payable or incurred in andaboutthecarryingoutofsuchsale. 223 1977 April 26 PHOENIX MARINE CONSULTANTS LTD. v. SPENMAN MARITIME CO. LTD. April 26 PHOENIX MARINE CONSULTANTS LTD. The lawontheissues raised bythis application iswell settled. As stated in the British Shipping Laws, Vol.1, Admiralty Practice, 1964,para. 382,"the resmustbe under arrest in the action in which theorder for appraisement andsaleisaskedforandif necessary may bearrest- 5 edasecond timeforthispurpose". v. SPENMAN MARITIME CO. LTD. If anyfurther authority is needed for theproposition that before thesaleof,ashipisordered, itmust beunder arrest, thenote toOrder 75, rule 22of theRules ofthe Supreme Court, Annual Practice,
(1976), supply thean- 10 swer. Itreads: "Res must beunder arrest.—The resmust bein the hands of theCourt before an order for sale willbe made (TheWexford[1888], 13P.D. 10)butinspecial circumstances anorder for arrest, appraisement 15 and sale maybe made where it is not (The Berriz
(1905)—Fo. 497).The poweroftheCourt inanAdmiralty action to order a Court sale cannot be invoked in an action inpersonam.(TheLadyTahilla [1967] 1 Lloyd'sRep.591at601). 20 But again, no order for arrest, appraisement and sale issought bythis application. Counsel for the applicant hassuggested that the provisionsofsection 81oftheMerchant Shipping (Registration etc.) Law, 1963will come into play if anorder for sale 25 ismade. Section 81 speaks ofproceedings where anyship has either wholly orastoanyshare therein become subject toforfeiture under this Law andnothing inthisapplication suggests that theship inquestion issubject to forfeiture under thisLaw. For alltheabove reasons andasI have notbeen able to trace any other provisions whether statutory or at common law empowering metoorder thesaleoftheship in the circumstances applied for andnotbeing underthe arrest of this Court and itsarrest not being sought, and as no writ ofexecution isapplied for,the present application mustbedismissed. The question of equitable execution oftheappointment of a receiver referred to also by learned counsel forthe 224 30 35 applicant does not come into play by the relief sought in this application and no useful purpose will be served to deal with this argument. The ordinary modes of execution against a company registered in Cyprus are open to the applicants' judgment-creditors who may consider resorting to them. 1977 Apri 26 ^ PHOENIX MARINE CONSULTANTS LTD. V. 1Q In the result, the present application is dismissed with SPENMAN no order as to costs. ^ u n ? Application dismissed. No order as to costs. 225

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