clr/1977/1977_1_44.pdf

(1976)1 C.L.R. 333, followed. 5 10 Merchant Shipping (Registrationof Ships, Sales andMortgages) Law, 1963 (Law 45 of 1963)—Order prohibiting dealing with ship unders.30 oftheLaw—Applicationto haveitsetaside— Could be madeatany time after the issueof the order—Fact that defendants hadstated previouslythat they do not object 15 to the order doesnot estopthem from applyingto setitaside. Merchant Shipping (Registrationof Ships, Sales and Mortgages) Law, 1963 (Law 45 of 1963)—"Interested person" in s.30 of the Law—Admiraltyactioninrem—Thoughgenerally a plaintiff alwayshasaninterest inthe propertyof thedefendantthat 20 interestdoes not necessarily make him an "interested person" withinthemeaningof thesaids.

1. Injunction—Interlocutory injunction—Section 32 of the Courts of Justice Law, 1960—Whetherit can be made by this Courtin theexercise of itsadmiralty jurisdiction. Jurisdiction—Admiralty jurisdiction—SupremeCourt in the exercise of this jurisdiction is a Civil Court—Section32 of the CourtsofJusticeLaw,1960(Law14160). 44 25 5 10 15 20 Following the filing of an action on the 20th May, 1975,by means of whichplaintiffs claimed an amount of C £ 18,000 for breach of contract and'or for negligence, on the 13th June, 1975 on an ex parte application based solely on section 30* of the Merchant Shipping (Registration of Ships, Sales and Mortgages) Law, 1963 (Law 45/63), they obtained an order prohibiting any dealing with the defendant No. 2 ship or any share therein. On July 4, 1975 the defendants appeared in the action and stated that they did not object to the order made under section 30 above. On November 13, 1976 an application was filed by defendant No. 1company for an order setting aside the above order of the 13th June,
2. This application was based on the Cyprus Admiralty Jurisdiction Order 1893, rules 203 to 212 and on section 30 of Law 45/63 (supra).Counsel for the applicant mainly contended that since it was clear from the facts of the case that the plaintiff was not an interested person within the meaning of section 30 of Law 45/63 the original order could not havebeen madeby the Court. / On the other hand counsel for the respondent contended (a) •that since applicants, when they appeared in the action on July 4, 1975, stated that they did not object to the order sought to be set aside, they were estopped from applying to 25 set it aside at this stage; (b) that as soon as an action in rem - • -- in-the admiralty jurisdiction is filed, the plaintiff becomes an interested person within the meaning of section 30 of Law 45/63; (c) that although the application for the issue of the order was based solely on section 30 of Law 45/63, yet the 30 Court had power under section 32** of the Courts of Justice Law, 1960 (Law .14/60) to grant the order and it is immaterial whether the application was based on the one or the other section. 35 . Held, granting the application,

(1)that the fact that the applicants stated that they did not objeot to the order in question does not estop them from applying to set it aside in view of the clear wording of section 30 of Law 45/63 which provides, among other things, that the Court "may discharge the order *Quoted at p. 48 post. '•Quoted in full at pp. 50-51 post. 45 1977 Jan. 29 CONSOLIDATE! GLASS WORKS LTD. v. FRIENDLY PALE SHJPPINC CO. LTD. AND ANOTHEI Jan. 29 CONSOLIDATED GLASS WORKS LTD. v. FRIENDLY PALE SHIPPING CO. LTD. ND ANOTHER when made, with or without costs and generally may act in thecase as thejustice of thecase requires".

(2)That though a plaintiff always has an interest in the property of a defendant that interest does not necessarily make him an interested person within the meaning of section 30 of Law 45/63 in admiralty actions. 5

(3)That though section 32 of the Courts of Justice Law, 1960 gives very wide powers to every court in the exercise of its civil jurisdiction, and this Courtin its admiralty jurisdiction is a Civil Court, to grant an injunction in all cases in which \Q it appears just or convenient so to do, the power of the court to grant an injunction under this section is notin issue in these proceedings and neither is in issue the question whether this Court on the facts of this particular case could make under this section the order prohibiting any dealing with the ship in question or any share therein. 25 Per curiam:

(1)In any event, and irrespective of what may be argued as regards the application of section 32 of Law 14/60, in view of the provisions of section 4

(1)of the Civil Procedure Law, Cap. 6, even if I were to decide on the making of an order undersection 32 of Law 14/60 prohibiting 20 any dealing with the ship in question, or any share therein, I would not have exercised my discretion in granting such an order.

(2)What was decided in the case of Nemitsas Industries Ltd. v. S. & S. Maritime Lines Ltd. and others,

(1976)1 25 C.L.R. 302, following Nippon Yussen Kaisha v. Karageorgis and Another [1975] 3 AH E.R. 282 and MarevaCompania Naviera S.A. v. international Bulkcarriers S.A. [1975] 2 Lloyd's Rep. 509, should be considered as so decided in the particular circumstances of that case and should not be readily 30 extended so that to cover assets other than cash money and, especially, any dealing with a ship or any share therein.

(4)That the plaintiff company is a mere claimant of da­ mages against the owner company of the ship in question for breach of contract and/οτ for negligence and has nothing to do with the ship herself; and that, accordingly, the plaintiff is not an interested person within themeaningof section 30 of Law 45/63 and the order made on the 13th June, 1975 wiD 46 35 bedischarged (see Tokio Marineand FireInsuranceCo. Ltd. v.FameShipping Co.Ltd.

(1976)1 C.L.R. 333). Application granted. Cases referred to: 5 "MonicaS" [1967] 2Lloyd'sRep.113; Tokio Marineand Fire InsuranceCo. Ltd. v. Fame Shipping Co.Ltd.

(1976)1 CJLJR. 333; Eastern MediterraneanMaritime Ltd. v. Nava Shipping Co. Ltd.

(1975)5J.S.C.666; 10 Verolme Dock and Ship Building Company Ltd. v. Lamant Shipping Co.Ltd.,

(1975)11 J.S.C. 1618; Nemitsas IndustriesLtd. v. 5. &S. MaritimeLtd. andOthers

(1976)1C.L.R. 302; 15 Nippon Yussen Kaisha v. Karageorgis and Another [1975] 3 All EJL 282; MarevaCompaniaNaviera S.A. v. International Bulkcarriers S.A. [1975] 2Lloyd'sRep.

1. Application. Application by defendant No. 1 for an order setting 20 aside and/or cancelling an order of the Court under section 30 of the Merchant Shipping (Registration of Ships, Sales and Mortgages) Law, 1963 (Law No. 45/63) prohibiting any dealing with the defendant No. 2 ship or any ._ . . share therein. 25 L. Papaphilippou, for theapplicants. X. Syllouriswith/. Erotokritou, for therespondents. Cur.adv. vult. Thefollowing judgmentwasdeliveredby:MALACHTOS,J.: On the 26th May, 1975, the plaintiff 30 companyissueda writof summons against thedefendants, claiming asstated therein: A. A sum of over C £ 18,000 (eighteen thousand Cyprus pounds) or an amount of over 50,000 U.S. dollars (fifty thousand) damages for breach 35 of agreement and/or duty and/or for negligence 47 1977 Jan. 29 CONSOLIDATED GLASS WORKS LTD. v. FRIENDLY PALE SHIPPING CO. LTD. AND ANOTHER 1977 Jan. 29 CONSOLIDATED GLASS WORKS LTD. v. FRIENDLY PALE SHIPPING CO. LTD. AND ANOTHER during the loading, handling, stowing, care, carriage and discharge of a cargo of soda ash light loaded at Constanza for Lourenco Marques on board defendant No. 2 ship "Captain Pavlou" property of defendant No. 1 company on or 5 about themonthsof March, April,May andJune 1974, aswellas compensation withregard toany contribution for salvage and general average as a result of the said carriage which the plaintiff company maybeboundtopay. 10 B. Interest and costs. On the 13th June, 1975, the plaintiffs on an exparte application based solely on section 30 of the Merchant Shipping (Registration of Ships, Sales and Mortgages) Law, 1963,Law 45/63, obtained an order of this court 15 prohibiting any dealing with the defendant No. 2 ship or anysharetherein.This section 30isasfollows: "
2. The High Court may, if the Court tiiinks fit (without prejudice to the exercise of anyother power of the Court), on the application of any interested 20 person make anorder prohibiting for a time specified any dealing witha shipor any share therein, and the Court may make the order on any terms or conditionstheCourtmaythinkjust,ormayrefuse tomake the order, or may discharge the order when made, 25 with or without costs, and generally may act in the case as the justice of the case requires; and the Registrar, without being made a party to the proceedings, shall on being served with an official copy thereof obey thesame". 30 On the 4th July, 1975,when the aboveorder wasmade returnable, a conditional appearance wasentered bycounsel on behalf of both defendants and time was given till the 17th September, 1975, to apply to set aside the issue and service of the writ and in case they failed to do so, 35 then the conditional appearance entered should be considered as unconditional. Counsel for the defendants stated on the above date that hedid not object for the order toremain inforce subject to the result of the application which would be filed 40 48 for setting aside the issue and service of the writ. In view of thefact that no step wastaken by thedefendants tothe above direction up to the 17th September, 1975, the conditional appearance entered on 4.7.75, was considered as 5 unconditional. An application, however, for leave to join an additional defendant in the action or in the alternative to issuea third party notice,wasfiled onbehalf of thedefendants on the 9th July,
3. This application wasopposed by the plaintiff. We are not concerned with this 10 application at this stage. What we are concerned with is an application which was filed on the 13th November, 1976, on behalf of defendant No. 1 company, based on the Cyprus Admiralty Jurisdiction Order 1893,rules 203 to 212, and on section 30 of Law 45/63, claiming an 15 order setting asideand/or cancelling theorder of the 13th June, 1975 prohibiting any dealing with the defendant 2 shipor anysharetherein. Themain argument of counselfor the applicant companyisthat sinceitisclear from thefacts of thecase,asthey 20 appearinthefile, that theplaintiff isnot aninterested person, within the meaning of section 30 of Law 45/63, the original order, could not have been made by the court. Counsel for the respondent, on the other hand, who opposed the application, submitted that since the defend25 ants on the 4th July, 1975, appeared in the action and a statement was made on their behalf that they did not object to the order made by the court on 13.6.75, under section 30 of Law45/63, they wereestopped from applying to set it aside at this stage. Furthermore, no good 30 cause is shown in the affidavit in support of the application to enable the Court to set aside the said order. He also submitted that as soon as an action in rem in the admiralty jurisdiction is filed, theplaintiff becomes an interested person within the meaning of section 30 ofLaw 35 45/
4. Since the present action is a mixed action the plaintiff company should be considered as an interested person within the meaning of this section. He referred in this respect to the case of "MonicaS" reported in [1967] 2Lloyd'sRep.
5. 40 I must sayfrom now that having gonecarefully through this rather long report I found nothing that supports the 49 1977 Jan. 29 CONSOLIDATED GLASS WORKS LTD. v. FRIENDLY PALE SHIPPING CO. LTD. AND ANOTHER 1977 Jan. 29 CONSOLIDATED GLASS WORKS XTD. v. FRIENDLY PALE SHIPPING CO. LTD. AND ANOTHER above proposition of counsel. It is true that generally speaking a plaintiff always has an interest in theproperty of a defendant but that interest does not necessarily make him aninterested person within the meaningof section 30 ofLaw 45/63 in admiralty actions. 5 As it appears from the writ of summons the plaintiff company isa mereclaimant of damages against theowner company of the ship in question for breach of contract and/or for negligence and has nothing todo withtheship herself. So, the plaintiff is not an interested person within 10 the meaning of section 30 of·Law 45/63 (see in this respect thecaseof theTokioMarineandFireInsurance Co. Ltd. v. Fame Shipping Co. Ltd.

(1976)1 C.L.R. 333 where the EasternMediterranean MaritimeLtd. v.Nava ShippingCo.Ltd.

(1975)5J.S.C 666and Verolme Dock 15 andShipBuildingCompany Ltd. v.Lamant Shipping Co. Ltd.

(1975)11 J.S.C. 1618,were reconsidered). Asregards the submission of counselfor therespondent company that the applicants are estopped from applying to set aside the order as they did not show cause why it 20 should not remain in force when it was returnable on 4.7.75,1 think itcannot stand inviewof theclearwording of section 30 of the law which provides, among other things, that the court "may discharge the order when made, with or without costs, and generally may act in the 25 caseasthejusticeofthecaserequires". In the circumstances of thepresent casethe application to set aside the order could be made at any time after the issuethereof. Counsel for the respondent finally submitted that al- 30 though the application for the issue of the order was based, as stated therein, solely on section 30 of Law 45/ 63, yetthe courthadpowerunder section 32of theCourts of JusticeLaw 1960,Law 14/60, togrant theorder andit is immaterial, as he put it, whether the application was 35 based on the one or the other section. Section 32 of Law 14/60 reads asfollows: "32.

(1)Subject to any Rules of Court every court, in the exercise ofits civiljurisdiction, may,by order, grant an injunction (interlocutory, perpetual or man- 40 50 datory) or appoint a receiver in all cases in which it appears to the court just or convenient so to do,notwithstanding that no compensation or other relief is claimedor granted together therewith: 5 10 15 20 25 30 Provided that an interlocutory injunction shall not begranted unless the court is satisfied that there is a serious question tobe tried at thehearing, that there is a probability that the plaintiff is entitled to relief and that unless aninterlocutory injunction isgranted it shall be difficult or impossible to do completejusticeat alater stage.

(2)Any interlocutory order made under subsection

(1)may be made under such terms and conditions as the court thinks just, and the court may at any time, on reasonable cause shown, discharge or vary anysuch order.

(3)If it appears tothecourt that any interlocutory order made under subsection

(1)was applied for on insufficient grounds, or if the plaintiffs action fails, or judgment is given against himbydefault or otherwise, and it appears to the court that there was no probableground for hisbringing theaction, thecourt may, if it thinks fit, on the application of the defendant, order the plaintiff to payto the defendant such amount as appears to the court to be a reasonable compensation to the defendant for the expense and injury occasioned to him by the execution of the order. Payment of compensation under this subsection shall be a bar to any action for damages in respect of anything done in pursuance of the order; and any such action, if begun, shall be stayed by thecourt in such manner and on such terms as the court thinks just". 35 No doubt this section gives very wide powers to every court in the exercise of itscivil jurisdiction, and this court in its admiralty jurisdiction is a civil court, to grant an injunction in all cases in which it appears just or convenient sotodo. 40 However, thepower of the court to grant an injunction 51 1977 Jan. 29 CONSOLIDATED GLASS WORKS LTD. v. FRIENDLY PALE SHIPPING CO. LTD. AND ANOTHEB 1977 Jan. 29 CONSOLIDATED (.LASS WORKS LTD. FRIENDLY PALE SHIPPING CO. LTD. rrND ANOTHER under this section is not in issue in these proceedings. Neither is in issue the question whether this court on the tacts of this particular case could make under this section the order prohibiting any dealing with the ship in question or any share therein. 5 In any event, and irrespective of what may be argued as regards the application of section 32 of Law 14/60, in view of the provisions of section 4

(1)of the Civil Procedure Law, Cap. 6, even if I were to decide on the making of an Order under section 32 of Law 14/60 prohibiting \Q any dealing with the ship in question, or any share therein, I would not have exercised my discretion in granting such an Order. What was decided in the case of Nemitsas Industries Ltd. v. S. & S. Maritime Lines Ltd. and others,

(1976)]5 1 C.L.R. 302, following Nippon Yussen Kaisha v. Karageorgis and Another [1975] 3 All E.R. 282 and Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. [1975] 2 Lloyd's Rep. 509, should be considered as so decided in the particular circumstances of that case and 20 should not bereadily extended so that to cover assets other than cash money and, especially, any dealing with a ship or any share therein. What is in issue in these proceedings is whether this Court could make the Order under section 30 of Law 25 45/63 on the facts of thepresent case. As I have already said the respondent company is not a person interested within the meaning of this section and, consequently, the Order made on 13.6.75, has to be and is hereby discharged. The applicants are entitled to their costs to be assessed at the end of the proceedings. Order accordingly. 52 30