clr/1977/1977_1_271.pdf

(2)That it isclear from the facts contained in the affidavit in support of the application, which are accepted as true and correct, that the applicant has never been the agent of the Union Lebanese Transport Agencies of Beirut, a foreign corporation; that there is nothing to show that the said corpora- 15 tion carries on business in Cyprus through the applicant; that tihe letter of the Harbour Master does not prove anything beyond the authority given to the applicant for the preparation of the report inwards or clearance outwards of a ship (see sections 23 and 45 of the Customs and Excise Laws 1967 to 1973 20 and the Importation and Exportation by Sea Regulations, 1968); and that, accordingly, the issue and service of the writ of summons ishereby setaside. Application granted. Cases referred to: 25 Okura & Co. Ltd. v. ForsbackaJernverks Aktiebolag |I9I4] 1 K.B. 715; The Lalandia[\9M] P.56; Thames &MerseyMarineInsurance Co. v. Societa di Navigazione a Vapore del Lloyd Austriaco [1914] 12 Asp. 30 M.L.C.491; TheHolstein [1936] 2AllE.R. 1660; Application. Application by defendants for an order to set aside the issue and service of the writ of summons in an admiralty 35 action whereby plaintiffs claimed 562.70 U.S. dollars for loss or damage caused to goods shipped on the ship "Diya". M. Vassiliou, for applicant. L. Papaphilippou, for the respondent. 40 Cur, adv. vult. 212 Thefollowing judgmentwasdeliveredby:MALACHTOS,J.:Theplaintiffs inthisAdmiralty Action having a claim for 562.70 U.S.dollars against the Union Lebanese Transport Agencies of Beirut, owners of the 5 ship "DIYA" for loss or damage caused to 17 bundlesof corrugated cartons shipped on the said ship against a Bill of Lading No. 1dated 8th December, 1975,for carriage from Silaata toLimassol, issued and served awrit of summons upon Costas Stylianou of Limassol as agent of the 10 shipowners. At this stage of the proceedings we are concerned with an application to set asidethe issueand serviceof thewrit ontheground that theserviceisbadinlaw. Both counselin arguing this casereliedon the affidavits 15 in support of the application and opposition, respectively, andcalled nofurther evidence. In the affidavit in support of theapplication it isstated by the applicant Costas Stylianou that he is running a customs clearance agency in Limassol and has no autho20 rity from the Union Lebanese Transport Agencies of Beirut toenter into any agreementon theirbehalf or to make any contract whatever or to collect freights or issue and accept billsoflading for and onbehalf of the saidcompany or accept any payments and, generally, to repre25 sent them in any way in connection with their business. He has no authority from the said company to deal with anyclaim against them by anypersons and no business is carriedout inhisoffice bythesaidcompany. In answer to the above allegations of the applicant in 30 theaffidavit insupport of theopposition reference ismade to a letter dated 4th March, 1977, addressed to the plaintiffs' advocate by the Harbour Master of Limassol, which letter reads asfollows: 35 "In reply to your letter reference No. BB695 dated 28th March, 1977, I wish to inform you that the agent of M/S 'DIYA* in December, 1975 was Mr. Costas Stylianou, Telephone No. 64041, Limassol". Obviously the above information was obtained by the 273 1977 June 22 GEORGE D. COUNNAS & SONS LTD. v. UNION LEBANESE TRANSPORT AGENCIES ETC. 1977 June 22 GEORGE D. COUNNAS & SONS LTD. v. UNION LEBANESE TRANSPORT AGENCIES ETC. Harbour Masterfrom the form which the master of a ship on arriving at aCyprusport usuallyisfilling upin accordance with the Importation and Exportation bySea Regulations, 1968 and appoints an agent to make a report inwards as required by section 23 of the Customs and Ex- 5 ciseLaws 1967 to 1973 and under thedirections givenby theDirector of theDepartment of Customsand Exciseby virtue of section 45 of the said Law, the said agent is authorised by the master to act for him in all matters relatingtotheclearanceoutwardsof theship. 10 Subsections 1and 2 are the relevant parts of section 23 of thelawandread asfollows: "23.-(l) Report shall be made in such form and manner and containing suchparticulars as theDirector may directof every ship and aircraft towhich this 15 section applies

(2)This section shall apply to every ship arriving at a port(

1. a)from any place outside the Republic; or (
2. b)carrying any goods brought in that ship 20 from someplace outside the Republic and not yet cleared on importation". The relevant parts of section 45 of the Law are also subsections 1 and 2whichread: "45.-(
3. l)Save aspermitted by the Director, no ship 25 or aircraft shall depart from anyport or customs airport from whichit commences, or at which it touchesduring, a voyageor flight outside the Republicuntil clearanceof theshipor aircraft for that departure has beenobtainedfrom theproper officer at thatport 30 or airport.

(2)TheDirector maygivedirections(

1. a)as to theprocedure for obtaining clearance under thissection; (
2. b)asto thedocuments tobeproduced and the 35 information to befurnished by any person applyingfor such clearance". It is clear from the above that the authority of such 274 agent is related to the preparation of the report inwards or clearance outwards of a ship and has nothing to do with any other business of the ship or her owning compa­ ny. 5 In the case of Okuraand Co. Ltd. v. ForsbackaJem· verks Aktiebolag [1914] 1 K.B. 715, a Court of appeal case, "the defendants were a foreign corporation carrying on business in Sweden as manufacturers. They employed as their sole agents in theUnitedKingdom a firm inLon1ο don who also acted as agents for other firms and carried onbusiness asmerchantsontheirown account.Theagents had no general authority to enter into contractson behalf of thedefendants, but they obtained orders andsubmitted them to the defendants for their approval. On being noti15 fied by the defendants that they accepted the orders the agents signed contracts with the purchasers as agents for the defendants. The goods were shipped direct from the defendants in Sweden to the purchasers. The agents in some cases received payment in Londonfrom thepurcha20 sers and remitted the amount to the defendants less their agreed coramission:Held, that the defendants were not carrying on their business at the agents' office in London so as to be resi­ dent at a place within the jurisdiction, andthat service of 25 a writ on the agents at their office was, therefore, not a goodservice onthedefendants". 30 35 40 At page 718 of this Report Buckley L.J. had this to say: "The question in this case is whether the defendants, who are a foreign corporation, can be served with a writ in this country. The answer to that question de­ pends on whether the defendants can be found 'here' for the purpose of being served. In one sense, of course, the corporation cannot be 'here'. The question really is whether this corporation can be said to be 'here' by a person who represents it in a sense re­ levant to the question which we have to decide. The point to be considered is, do the facts shew thatthis corporation is carrying on its business in this country? Indetermining thatquestion, three matters have to be considered. First, the acts relied on as shewing 275 1977 June 22 GEORGE D. COUNNAS & SONS LTD. v. UNION LEBANESE TRANSPORT AGENCIES ETC. 1977 June 22 GEORGE D. COUNNAS & SONS LTD. v. UNION LEBANESE TRANSPORT AGENCIES ETC. that the corporation is carrying on business in this country must have continued for a sufficiently substantial period of time. That is the case here. Next, it is essential that these acts should have been done at some fixed place of business. If the acts relied on 5 in this case amount to a carrying on of a business, there is no doubt that those acts were done at a fixed place of business. The third essential, and one which it is always more difficult to satisfy, is that the corporation must be 'here' by a person who carries on 10 business for the corporation in this country. It is not enough to shew that the corporation has an agent here; he must bean agent who does the corporation's business for the corporation in this country". This case was followed in the Lalandia case [1933] P. 15 56. In this case the plaintiffs, the owners of a vessel damaged in collision with a vessel owned by the defendants, a foreign corporation, served a writ upon a member of an English firm, E.M. & Co., who acted as the defendants' agents. The writ was served at E.M. & Co.'s London 20 offices. The defendants moved to set aside the writ and service on the ground that they were not resident within the jurisdiction. It appeared that E.M. & Co. wereone of the defendants' agents in this country for the booking of freight, issue of 25 passenger tickets, and the ordinary purposes for which ship's brokers are employed. The only remuneration received by them was the customary agents' commission, and they had no concern with the management of the defendant corporation. The onlyname appearing on the door 30 of E.M. & Co's offices was their own name, but upon the window of the ground floor their name was exhibited as agents for the defendant corporation together with the names of other foreign shipping companies for whom E.M. & Co. acted:35 Held, applying the tests stated by Buckley L.J. in Thames and Mersey Marine Insurance Co. v. Societa di Navigazione a Vapore del Lloyd Austriaco [1914] 12 Asp.M.L.C. 491 and Okura &Co. v.Forsbacka Jernverks A / B [1914] 1 K.B. 715, thatE.M. & Co. were a firm who 40 "sold" and did not "make" contracts on behalf of the defendants, and that thedefendants did their business in this 276 country "through" E.M. & Co. and not "by" them; that the defendants, accordingly, were not resident within the jurisdiction and that thewrit and service must be set aside. The Okura case was also followed in the case of The 5 "Holstein" [1936] 2AllE.R. 1660. 10 "In a collision case where the procedure in rem was not available it was sought in an action brought in personam against a foreign shipping company to effect service of the writ through London agents. The agents were general agents for shipping companies and the foreign company in question had no financial interest in the firm nor was any of their staff assigned exclusively to the business of the foreign company. The remuneration waswholly by commission:- 15 HELD: Service on such general agents was bad". It is clear from the above authorities that the test in each case is whether the agent in carrying on the foreign corporation's business makes a contract for the foreign corporation or whether in carrying on his own business 20 sells a contract with the foreign corporation? In the former case the corporation is and in thelatter case is not carrying on business at that place. In the case in hand, it is clear from the facts contained in the affidavit in support of the application which facts I 25 accept as true and correct, that the appUcant has never been the agent of the Union Lebanese Transport Agencies of Beirut, a foreign corporation. There is nothing to show that the said corporation carries on business in Cyprus through the applicant. The letter of the Harbour Master to 30 the plaintiffs' advocate, as I have already said, does not prove anything beyond the authority given to the applicant for the preparation of the ship's report by the master of theshipowned by thesaid corporation. For the foregoing reasons the issue and service of the 35 writ of summons should be set aside and an order is made accordingly. . The plaintiffs are adjudged to pay to the applicant the costs of this application to be assessed by the Registrar. Order accordingly. 277 1977 June 22 GEORGE D. COUNNAS & SONS LTD. v. UNION LEBANESE TRANSPORT AGENCIES ETC.