clr/1977/1977_1_53.pdf

(1)(

1. a)to (
2. s)and 3 as applied in Cyprus by Sections 19(
3. a)and 29

(2)of Law 14/60. (c) At the time of the commencement of this action the Defendant Ship wasnotowned byany person whomay 'have been [personally liable to the Plaintiff, as envisaged by section 3

(4)(a) of The Administration of Justice Act, 1956or otherwise". 5 The trial Court having heard the above preliminary objec- 10 tion dismissed the action of the plaintiff on the ground that "once the plaintiff did not acquire any maritime lien for the amount of his advance to the master, which attached to and followed -the ship from and after the time when this advance was made, he cannot have an action in rem once at the time 15 of its institution the res was no longer the property of his debtor, having been sold to the owners of Rosade Lines of Beirut, before this action". Hence the present appeal in which the solequestion for determination waswhether thejurisdiction of the Court could be questioned after the entering of an un- 2 0 conditional appearance by defendant and the taking of steps in the action which should be considered as amounting to a waiver of his right to object to the jurisdiction of the Court. The defendant-ship was on the 22nd September, 1971 sold to another company. 25 Held,dismissing the appeal,

(1)that even if all facts in the statement of claim were tobe proved nevertheless in Law the claim of the plaintiff should be defeated; that the complaint raised by this appeal that the defendant could not properly raise this point or had waived his right cannot stand, as in 30 cases like the present one neither the non entering of a conditional appearance nor the taking of subsequent steps in the action could give to the plaintiff a cause of action against the defendant-ship which he did not in Law have; and that as the ownership of the ship had changed and it was no longer the 35 property of the debtor, the claim of the plaintiff did not give him any maritime lien as against the defendant-ship which would follow her irrespective of change of ownership. Appealdismissed. Cases referred to: Everett v.Ribbands [1952]2QB. 198 atp.206. 54 40 1977 Febr. 1 Appeal rtpyeai Dypiauuiu against me judgment oi a juuge oi the Supreme Court in its Admiralty Jurisdiction (Hadjianastassiou, J.) dated the 5th September, 1975,(Admiralty Action No. 4/73) whereby plaintiffs claim for, inter alia, the amount of £-3,000.- on abottomrybond and/or loan and/or disbursements and/or money advanced tothe master oftheshipasnecessarieswasdismissed. Chr.Chrysanthou, for theappellant. 10 St.McBride, for therespondent. TRIANTAFYLLIDES,P.:The judgment of the Courtwill bedeliveredbyMr.JusticeA.Loizou. A. LOIZOU,J.: This is an appeal from the judgmentof a Judge of this Court*by whichthe action of the plaintiff 15 and at that an admiralty action in rem, was dismissed on the ground that "once the plaintiff did not acquire any maritimelien for theamount of hisadvancetothemaster, which attached toandfollowed theshipfrom and after the time when this advance was made, he cannot have an 20 action in rem onceat thetimeof itsinstitution thereswas no longer the property of his debtor, having been sold to the owners of RosadeLines ofBeirut,before this action". By the writ of summons the plaintiff claimed against the defendant Ship 'TANIA MARIA' ex "CONSTAN25 TISFOTTNOS"— "(a) £3,000.- on the bottomry bond and/or loan and/or bond and/or as disbursements and/or money advanced to the master of the ship on or about the 18.6.1971 asnecessaries to enable 30 theshiptoproceedwithitsvoyage. (b) £ 1,100 disbursements in respect of proper expenditure of necessary things for the ship for thepurposesofnavigation. 35 (c) £320.400 further disbursements in respect of proper expenditure of necessary things for the shipforthepurposesofnavigation. • Reported in

(1975)1 C.L.R. 162. 55 SOTERIS N. PASCHAUS V. SHIP TANIA MARIA* 1977 Febr. 1 SOTERIS N. PASCHALIS v. SHIP TANIA MARIA" (

1. d)Legal Interest. (
2. e)Costs". Upon the filing of this action on 15.1.1973, the plain­ tiff applied and obtained a warrant for the arrest of the defendant ship and it was admitted in the affidavit filed 5 in support of that application, that the ship in question was a Lebanese ship, but at the material time it carried the name"CONSTANT/IS FOTINOS" and belonged to a certain N.C. SpanosShipping Co.Ltd. A notice of intention to show cause against the order 10 for the arrest of the defendant ship was filed on the 20th January, 1973 andit was, inter alia, stated, that the de­ fendant ship was sold on the 22nd September, 1971, having been purchased from a PanamanianCompanyand an affidavit was filed in support of the said notice. 15 ι. Itis notcontested thatthe claims madeby plaintiff had arisen before the sale of the vessel to its present owners. On the 25th January, 1973, the parties appeared before the learned trial Judge and, in addition to a direction for the filing of a security bond by plaintiff, a direction was 20 made for the filing of thepleadings. The appearance on behalf of the defendant ship was unconditional. On the 10th March, 1973, an application for the dis­ missal of the action for want of prosecution was filed by counsel on behalf of the defendant ship, but was with- 25 drawn, inviewof thefiling of thepetition. The answer and counterclaimwas filed onbehalf of the defendant ship on the27th March, 1973 and it was raised therein, by way of preliminary objection, that the Court had no jurisdiction to entertain this action, inter alia,for 30 the following reasons, namely: "(
3. a)The claims raised in this action do not create maritime liens and/or any cause of action in rem, or (
4. b)any other cause of action cognisable by this 35 Court, in particular as set out in the Admini­ stration of Justice Act, 1956 Sections 1

(1)(

1. a)to (
2. s)and 3 as applied in Cyprus by Sections 19(
3. a)and29

(2)of Law 14/60. 56 5 (c) at the time of the commencementof this action the Defendant Ship was not owned by any per­ son who may have beenpersonally liable tothe Plaintiff, as envisaged by Section 3

(4)(a) of The Administration of Justice Act, 1956 or otherwise". On the 14th May, 1973 an application for discovery and inspection was made on behalf of the defendant and it was directed when documents were finally filed, each 10 party tobe atliberty to apply for adateof hearing, which, in due course, was done and the case was heard on the preliminary objection raised in thedefence. It is from that judgment thatthepresent appeal was filed ona numberof grounds, but as finally argued before us, the question for 15 determination is whether the jurisdiction of the Court could be questioned after the entering of an unconditional appearance by defendant and the taking of steps in the action which should be considered as amounting to a waiver of his right to object to the jurisdiction of the 20 Court. A conditional appearance reserves to the appearingde­ fendant, the right to apply to the Court to set aside the writ or service thereof, for an alleged informality or irre­ gularity which renders either thewrit or serviceinvalid or 25 for lack of jurisdiction. (See Annual Practice 1960, p. 198). But this is not the position in the present case, in which the central issue was whether the plaintiff had a cause of actionentitlinghimtosucceed. The preliminary issues which the learned trial Judge Ϊ0 had todetermine were in the nature of the old demurrer. Hehad todecide on theadmittedfact of changeof owner­ ship and if all the facts stated in the statement of claim ' were to be proved, nevertheless in law the claim of the plaintiff should be defeated. The defendants, therefore, *5 availed themselves of the provisions of Order 27 or the corresponding old English Order 25 (See Annual Practice 1960, page 571) and the Court was invited to decide the question of law raised in the defence as a result of the existing state of facts, a course to which the plaintiff did W notobject and towhich theCourtaccededbeing obviously of the opinion that his decision on such point of law sub­ stantially disposed of the whole action and so saved the 57 1977 Febr. 1 SOTERIS N. PASCHALIS v. SHIP "TANIA MARIA" 1977 Febr. 1 SOTERIS Ν. PASCHALIS v. SHIP TANIA MARIA" costs by disposing samebefore trial. It was indeed apro­ per coursetobe followed as therewas nodisagreementon the material facts and it was consonant with what was stated by Romer L.J., in Everett v. Ribbands [1952] 2 Q.B. 198 atpage 206, that: "Where"there is a point of law which if decidedone way is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the Rules of Courtto have it disposed of at thecloseof "pleadingsorvery shortly after". The complaint, therefore,raised by this appeal that the plaintiff could not properly raise this pointor hadwaived hisright,cannot, in our opinion, stand as in cases likethe present one neither the non entering of a conditionalap­ pearance nor the taking of subsequent steps in the action could give to the plaintiff a cause of action against the defendant-ship which he did not in law have. As already stated, the ownership of the ship had changed and it was no longer theproperty of the debtor and theclaim of the plaintiff did notgivehim any maritimeUenas against the defendant-ship which would follow her irrespective of changeof ownership.Consequently,we dismiss theappeal with costs. Appealdismissed with costs. 58 10 15 20