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1977 May 12 — OVERSEAS SHIPPING FORWARDING CO. v. KAPPA SHIPPING CO. LTD. [A. LOIZOU, J.] OVERSEAS SHIPPING & FORWARDING CO. O F LEBANON, . Plaintiffs, v. KAPPA SHIPPING CO. LTD. AND OTHERS, Defendants. AND OTHERS (Admiralty Action No. 56/74). Practice—Preliminary objection—Point of law—Jurisdiction—Facts not disputed—Serious question of law, which if decided in favour of applicants would dispense with any further trial— Order directing trialof question of jurisdiction as a preliminary issue—Rule 89 of the Cyprus Admiralty Jurisdiction Order, 5 1893 and rule 2, Order 25 of the old English Rules of the Supreme Court of 1883. Jurisdiction—Preliminary point of law. Admiralty—Practice—Preliminary point of law—Jurisdiction— Rule 89 of the Cyprus Admiralty Jurisdiction Order, 1893. 10 By means of an action in personam the plaintiffs sought, inter alia, an order of the Court cancelling the registration of two ships from the names of defendants 3 and 2, respectively, and registering them in the name of defendant 1. Following the filing of the pleadings, defendants 2-6 applied for an order of the Court that the following question or issue of law, which was raised by the answer in this action, be tried as a preliminary issue before the trial of the action, namely "that upon the facts pleaded in the petition, the Supreme Court of Cyprus in its Admiralty Jurisdiction has no jurisdiction to hear and determine the action against defendants 2 - 6 . both inclusive". The application was based on rule 89* of the Cyprus Admiralty Jurisdiction Order, 1893, and on Order 25, rule 2** of the old English Rules of the Supreme Court of 1883. •Quoted at p. 251 post. ** Quoted at p. 251 post. 248 J5 20 25 10 There did not appear to be any disputed facts and the applicants based their argument on the facts as pleaded. 1977 May 12 Held, that an order under r. 89 is made when a Judge is persuaded that the objection raises a serious question of law which, if decided in favour of the party objecting, would dispense with any -further trial or at any rate with the trial of some substantial issue in the action; that considering that the jurisdiction of this Court in admiralty matters is well defined and the law is neither unsettled nor obscure, the order applied for should be granted, there being a serious question of law which, if decided in favour of the applicants-defendants 2-6, would dispense with any further trial, as far as they are concerned and costs will be saved thereby. (Sumner v. William Henderson & Sons Ltd. [1963] 2 All E.R. 712 distinguished). OVERSEAS SHIPPING FORWARDING CO. v. KAPPA SHIPPING CO. LTD. AND OTHERS Application granted. 15 Cases referred to: London, Chatham, and Dover Ry. Co. v. South-Eastern Ry. Co., 53 L.T. 109; Robinson v. Fenner [1913] 3 K.B. 835; 20 Paschalis v. The Ship "Tania Maria" ex "Constantis Fotinos" (reported in this Part at p. 53 ante at pp. 57-58); Isaacs &Sons Ltd. v. Cook [1925] 2 K.B. 391; Taverner v. Glamorgan County Council [1941] 57 T.L.R. 243; 25 Companhia de Mocambique v. British South Africa Co. [1892] 2Q.B. 358; [1893] A.C. 602; Re Clinton, 88 L.T. 17; Sumner v. William Henderson & Sons Ltd. [1963] 2 All E.R. 712; 30 Waters v. Sunday Pictorial Newspapers Ltd. [1961] 2 All E.R. 758; Windsor Refrigerator Co. Ltd. and Another v. Branch Nominees Lid. and Others [1961] 1All E.R. 277. Application. 35 Application by defendants 2 - 6 for a n o r d e r of the C o u r t that a question or issue of law, to the effect that the Supreme C o u r t in its A d m i r a l t y Jurisdiction has n o ju249 1977 Μ& Ζ_ 12 risdiction to hear and determine the action against them, o e triec a s a * preliminary issue before thetrial of theaction. E. Psillaki (Mrs.) for applicants. OVERSEAS SHIPPING FORWARDING CO. G. Mitsides for L. Papaphilippou for respondents. v- Cur. adv. vult. KAPPA SHIPPING 5 The following ruling was delivered by:A. LOIZOU, J.: The plaintiffs' AND OTHERS claim in this admiralty action in Personam,is as follows: "(a)" An order of the Court ordering the cancella- JQ tion of any registration of the ship 'ΒΑΒΓ ex'JULIA K' from the name of Defendant No. 3 and re-registration or reinstatement of her registration in the name of Defendant No. 1. , (

  1. b)An order of the Court ordering the cancella- 15 tion of any registration of the ship 'KRIKRT from the name of Defendant No. 2 and re-re­ gistration or reinstatement of the registration in the nameof Defendant No. 1. (
  2. c)A declaration of the Court that any transfer 20 and registration of the ship 'ΒΑΒΓ ex 'JU­ LIA K' and 'KRIKRr in the names of De­ fendants 3 and 2 respectively was effected by fraud and/or deceit and/or collusion and/or conspiracy and/or with intent to defraud 25 Plaintiffs and/or with intent todefeat payment of plaintiffs* claim against Defendant No. 1 all of which were done by all Defendants. (
  3. d)Judgment against Defendant No. 1for £4,230 equivalent to 29,612.16 L.L. according to the 30 terms and conditions of a charterparty of ship 'KRTKRF dated 27.8.1973. (
  4. e)Interest at 9 per cent per annum on the above amount. (
  5. f)Against all defendants damages for fraud and/ or collusion and/or fraudulent transfer of the said ships and/or for breach of the terms and conditions of a charterparty and/or otherwise. 250 (
  6. g)Damages for breach of the termsof a charterparty and/or for negligence. (
  7. h)Further orotherrelief. (
  8. i)Costs". 5 The defendants 2 - 6 , both inclusive,by thepresentapplication, as finally argued before me, apply for an order of the Court that the following question or issue of law raised by the answer in this action, be tried as a preliminary issue before the trial of the action, namely, "that 10 upon the facts pleaded in the petition, the Supreme Court of CyprusinitsAdmiralty Jurisdiction, hasno jurisdiction to hear and determine the action against defendants 2-6, both inclusive". The application is based, interalia,on rule 89 of the 15 CyprusAdmiralty Jurisdiction Order, 1893,and on Order 25, rule 2 of the old English Rules of the Supreme Court of 1883. The respondents-plaintiffs oppose the said application, on theground that the said preliminary point is based on 20 disputed facts and in any case, the cause or causes of action and the remedies sought by them, fall within the jurisdiction of the Supreme Court of Cyprus in its Admiralty Jurisdiction. 25 30 35 Thesaidrule 89readsasfollows: "Either party may apply to the Court or Judge to decideforthwith anyquestion of fact or of law raised by anypleading, and the Court or Judge shall thereupon make such order as to him shall seem fit". Order 25,rule2readsasfollows: "Any party shall be entitled to raise by his pleading any point of law, and, unless the Court or a Judge otherwiseorders, anypoint soraisedshallbedisposed of by the ludge who tries the cause at or after the trial". Sofar as their substance isconcerned, they are in effect the same and the latter is identical—except that under Order 89, an application may be madefor the determina251 1977 May 12 OVERSEAS SHIPPING & FORWARDING CO. v. KAPPA SHIPPING CO. LTD. AND OTHERS 1977 May 12 OVERSEAS SHIPPING & FORWARDING CO. v. KAPPA SHIPPING CO. LTD. AND OTHERS tion of any question of fact, apart from one of law, raised by the pleadings and subject to this difference—to Order 27, rule 1 of our Civil Procedure Rules. An order under these Rules is made when a Judge is persuaded that the objection raises a serious question of law—I am not con- 5 cerned here with a question of fact which can possibly be raised under Order 89—which, "if decided in favour of the party objecting, would dispense with any further trial or at any ratewith the trial of somesubstantial issuein the action". (See London, Chatham and Dover Ry. Co. v. 10 South-Eastern Ry. Co., 53 L.T. 109; Robinson v. Fenner, [1913] 3 K.B. 835 and Annual Practice, i960, p. 572). The Full Bench of the Supreme Court had recently the opportunity of dealing with this point in Soteris Paschalis v. The Ship "TANIA MARIA" ex "CONSTANTIS FO- 15 TWOS", (reported in this Part at p. 53 ante at pp. 57-58), where it was stated:" the Court acceded being obviously of the opinion that his decision on such point of law substantially disposed of the whole action and so saved costs by 20 disposing same before trial. It was indeed a proper course to be followed as there was no disagreement on the material facts and it was consonant with what was stated by Romer L.J., in Everett v. Ribbands [1952] 2Q.B., 198 atp.206, that: 25 'Where there is a point of law which if decided one way is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings or veryshortly afterwards'." It is true that such an order should not be made in respect of matters which, on account of their nature, factual or legal, have to be decided at the trial and should be made only in respect of matters "on which no further light would be thrown at the trial". (See Isaacs & Sons Ltd. v. 35 Cook, [1925] 2 K.B. p. 391, applied in Tavemer v.Glamorgan County Council [1941], 57 T.L.R. 243). "Nor should such an order be made where there are facts in dispute". In the case in hand, there do not appear to be any dis- 40 puted facts, as the applicants base their argument on the 252 30 facts as pleaded, or to put it otherwise, on cause of action relied upon by the plaintiffs in their petition as against them and at that, as a question of jurisdiction which is one of the cases where such orders have been made (See Com5 panhia de Mocambique v. British South Africa Co. [1892] 2 Q.B. 358; [1893] A.C. 602; Re Clinton, 88 L.T. 17). Considering that the jurisdiction of this Court in admiralty matters is well defined and the law is neither unsettled nor obscure and bearing in mind all that has herein10 above been stated, I have come to the conclusion that the order applied for should be granted, there being a serious question of law which, if decided in favour of the applicants-defendants 2 -6, would dispense with any further trial, as far as they are concerned and costs will be saved 15 thereby. Out of respect to the argument advanced by counsel for the respondents, I must deal with it at some length before concluding this decision. I have gone through the authorities cited by him, but I find that they are distinguishable. 20 In the case of Sumner v. William Henderson &Sons Ltd., [1963] 2 All E.R. p. 712 C.A. the facts had not been agreed and what the evidence would have been was most uncertain. It was observed by Sellers, L.J. that it did not seem to the Court in the interest of either party that a hy25 pothetical decision should be reached then by way of special case. In the case of Waters v. Sunday Pictorial Newspapers, Ltd., [1961] 2 All E.R. p. 758, the question that arosewas one of striking out pleadings and as pointed out by Danc30 werts, L.J. at p. 763, "R.S.C. Ord. 19, r. 27, and Ord. 25, r. 4, and, indeed, also the inherent jurisdiction of the court, are only to be exercised in cases where it is clear that the defences which have been put forward cannot really succeed " 35 The case of Windsor Refrigerator Co., Ltd. and another v. Branch Nominees, Ltd. and others, [1961] 1 All E.R. p. 277 was one where by reason of the obscurity of the facts or the law, they ought to be decided at the trial. In the case in hand, the issue of law sought to be dis40 posed of by theCourt as a preliminary one before the trial • 253 1977 May 12 OVERSEAS SHIPPING FORWARDING CO. v. KAPPA SHIPPING CO. LTD. AND OTHERS 1977 May 12 OVERSEAS SHIPPING & FORWARDING CO. v. KAPPA SHIPPING CO. LTD. AND OTHERS of the action, is that of thejurisdiction of this Court with regard to the cause or causes of action as they appear in thepetition. Their factual aspect does not comeinto play, except that it constitutesthecauseor causesof action with regard to which theissueof jurisdiction israised. For all the abovereasons Ihavecometo theconclusion that the application should be granted and an order is made accordingly, withcosts. Applicationgrantedwith costs. 254

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