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clr/1980/1980_1_176.pdf

(1980)1980 February 29 [SAWIDES, J.] SYMEONTHEOPHANOUSANDANOTHER, Plaintiffs, v.
  1. DOROTHEA SHIPPING CO. LTD.,
  2. THE SHIP " AYIA MARINA ", Defendants. (Admiralty Actions Nos. 455-456/78). Admiralty—Shipping—Seamen—Foreign seamen—Contract of service •—Wrongful dismissal—Actions inremfor wagesand other emoluments—Arrest and sale of ship—Judgment for wages accruing both before and after issue of writ, for wages in respect of leave, for repatriation, subsistence and maintenance expenses and for 5 ten days double wages—Section 25
(2)of the Merchant Shipping (Masten, and Seamen) Law, 1963 (Law 46/63)—Karakiozopoulos and Others v. Ship " Ayia Marina", and Vlachos and Others v. Ship "Ayia Marina"
(1980)1 C.L.R. 19 and 113, respectively, followed. 10 The plaintiffs in these actions, as members of the crew of the defendant ship "AYIA MARINA", by means of the above actions, claimed against the defendants balance of wages and other emoluments, repatriation and maintenance expenses, compensation for termination of employment and wages in 15 respect of leave to which they were entitled but they did not get. The facts and the legal issues arising therefrom appear in Karakiozopoulos and Others v. Ship "Ayia Marina", and Vlachos and Others v. The Ship "Ayia Marina"
(1980)1 C.L.R. 19 and 113, respectively, and they will not be repeated herein 20 because they were adopted by the Court, mutatis mutandis, for the purposes of these actions. Cases referred to: Karakiozopoulos and Others v. Ship "Ayia Marina"
(1980)1 C.L.R. 19; Vlachos and Others v. Ship "Ayia Marina"
(1980)1C.L.R.
  1. 176 25 1 C.L.R. 5 Tbeophanous & Another τ. Dorothea Shipping Admiralty actions. Admiralty actionsby themembers of thecrew of the defendant ship "Ayia Marina" for theirwages,war-zone bonuses and other emoluments, repatriation and maintenance expenses and compensation for termination of employment. P. Sarris, for the plaintiffs. M. Vassiliou,for the intervener-mortgagee. Cur. adv. vult. SAVVIDES J. read the following judgment. The present 10 actions are part of a series of actions brought by the members of the crew of the defendant ship "AYIA MARINA". Eleven of such actions were consolidated and heard together and judg­ ment was given on 4.2.
  2. (Karakiozopoulos and others v. The ship "AYIA MARINA"*). Three other actions under 15 numbers 451, 452 and 453/78 (Vlachos and others v. The ship "AYIA MARINA"**) were also heard together and judgmentwas delivered on 26.2.
  3. Inview of the fact that the present actions presented common questions of law and fact, they were also heard together. 20 25 30 The writ of summons in the present actions was originally issued against Dorothea Shipping Co. Ltd., of Limassol as defendant No. 1 and the ship "AYIA MARINA" as defendant 2, which, for the purposes of these actions will be referred to as "the defendant ship". On the date of the hearing the action against defendant 1 was withdrawn and dismissed. No appear­ ance was entered by the owners of the defendant ship nor did they take any part in defending these proceedings. By leave of the Court granted to the mortgagee of the defendant ship, he was joined as an intervener and in such capacity he defended the actions for safeguarding his own interests under the mortgage. On thedate of the hearing the following statements were made by counsel appearing in these actions: 35 In Action No. 455/78—"Both counsel state that the following facts are admitted, subject to the legal issue as to whether they are entitled to: (a) In case the Court finds that the plaintiff is entitled to * See
(1980)1 C.L.R. 19. ** See p. 113 in this Part ante. 177 Sawides J. Tbeophanoos-< '& Another v. Dorothea Shipping
(1980)arrears of wages, the wages account prepared by the master of the ship and produced as Exhibit Ά 1 , is a correct statement. Both the balance of wages till the day when this was issued, that is, the 20th November, 1978 and also as to the monthly remunerations of the plaintiff, with the reservation that as from 17.10.1978 when the ship was arrested he is not entitled to the extra remuneration of 10,000 Drachmas per month and any amount appearing for such period in Exhibit Ά ' will be deducted. 5 10 (
  1. b)It is further agreed that the normal wages of plaintiff in this action are 40,000 Drachmas per month and the period of his employment as appearing in Exhibit *A\ Also, that the contract of employment dated 31.8.1978 will be put in by consent as Exhibit *B\ 15 (
  2. c)It is also agreed that the repatriation expenses of the plaintiff from here to Greece amount to £33.800 mils. (
  3. d)It is further agreed that the plaintiff left Cyprus on 3.11.1978. The above admissions are made subject to the legal argument as to whether he is entitled to the amounts he claims and in case it is so found by the Court that Exhibit Ά ' has to be readjusted concerning the date of departure. 20 It is further agreed that the preparatory evidence of Captain Voumvlinopoulos given in Actions Nos.402/78etc.will be consi- 25 dered also as evidence in connection with this case and also the evidence given by the defendant-intervener Roussos and that of Koutroumbas in Actions 451/78, 452/78 and 453/78 is adopted in these proceedings and will be deemed as evidence given in this action as well. 30 Both counsel further state that they adopt their addresses in Actions 451/78, 452/78 and 453/78 and they have nothing further to add". In Action No. 456/78—"Both counsel state that they wish to make the following statement concerning admitted facts subject to the legal issue as to whether the plaintiff is entitled to such amounts: (
  4. a)Repatriation expenses of plaintiff from here to Greece, £33.800 mils. 178 35 1 C.L.R. Theopnanous & Another v. Dorothea Shipping Sawides J. (
  5. b)Accommodation expenses whilst in Cyprus, £130.—. (
  6. c)Plaintiff departed from Cyprus on the 4th November, 1978. It is further agreed that the preparatory evidence of Captain Voumvlinopoulos given in Actions 402/78, etc. will be consi­ dered also as evidence in connection with this case and also the evidence given by the defendant-intervener Roussos and that of Koutroumbas in Actions Nos. 451/78, 452/78, and 453/78 is adopted in these proceedings and will be deemed as evidence 10 given in this action as well. 5 Both counsel further state that they adopt their addresses in Actions Nos.451/78, 452/78 and 453/78 and they have nothing further to add". In view of the statement by both counsel that the evidence 15 adduced and the arguments advanced in Actions Nos. 451/78, 452/78 and 453/78 are adopted in the present actions, no furthei evidence was called in these actions other than the two docu­ ments put in by consent, the one being the wages account dated 20.11.78 issued by the master showing the balance of wages due 20 to plaintiff in Action No. 455/78 (exhibit Ά ' ) and a photocopy of the contract of service of the same plaintiff, (exhibit 'B"). Plaintiff in Action No. 455/78 was, according to the wages . account (exhibit Ά ' ) and his contract of service (exhibit 'B'), employed on the defendant ship as a second mechanic as from 25 2.8.1978, at the monthly salary of 40.000 Drachmas per month, plus an additional remuneration of 10,000 Drachmas per month for so long as an additional Third Mechanic was not employed. He was so employed till the 3rd November, 1978, when he left Cyprus. According to the wages account and the statements 30 made by both counsel at the hearing, the balance of wages till the 20ih November, 1978 is 136.145 Drachmas. The only item in respect of which a dispute arises, is as to whether the plaintiff is entitled to the additional remuneration of 10,000 Drachmas per month, after the 17th October, 1978, 35 when the ship was sold by public auction. No dispute arises as to his entitlement prior to the 17th October, 1978. Accord­ ing to thewages account (exhibit Ά*), theplaintiff was employed as from 2.8.1978 and his total period of employment is given 179 Sarrides J. Tbeophanoos & Another v.Dorothea Shipping
(1980)as three months and 18days. On the same account the master has allowed the plaintiff the additional remuneration of 10,000 Drachmas only for a period of two months and 18days. Taking into consideration the date of the employment of this plaintiff which is the 2nd August, 1978, the master has allowed him this 5 extra remuneration till the 20th October, 1978. The master has not been cross-examined in this respect, and taking into consideration that the master has only allowed this extra remuneration up to the 20th October, 1978, I find that such date is approximately in line with the date admitted by the defendant, 10 that isthedatewhen theaction wasbrought and theshiparrested and, inconsequence, 1findthat plaintiff isentitled to the amount appearing in the wages account, in this respect. Plaintiff in Action No. 456/78 was employed as a mate, assistant to the master of the ship as from 22.8.1978 at the 15 monthly salary of 36,000 Drachmas. According to the wages account put in by the master when giving evidence (exhibit 15), the balance of wages due to him till 20.11.1978 amounts to 94,450 Drachmas. As mentioned earlier in this judgment, counsel jointly stated at the hearing, that the evidence adduced and the arguments advanced in Actions Nos.451/78, 452/78 and 453/78 should be considered as evidence in this action. In the light of such statements, the facts and legal aspect of the present actions are the same as in Actions 451/78, 452/78, and 453/78 (Vlachosand others v. The ship "AYIA MARINA"*) in which judgment has already been delivered. For the reasons set out in the said judgments and which need not be repeated in this judgment but are adopted mutatis mutandis for the purposes of the present actions and should be deemed to form part of thisjudgment, I find as follows: Both plaintiffs are entitled to wages both prior to the institution of the action as well as after the institution till the dates they departed from Cyprus. I also find that they are entitled to wages in respect of their leave. They are also entitled to 35 their repatriation expenses in the sum of £33.800 mils each, such amount having been agreed upon. Plaintiff in Action No. 456/78 is also entitled to his subsistence and maintenance expenses, the amount of which has also been agreed upon at £130.—. Both plaintiffs are also entitled to 20 days wages each, 40 * See p. 113 in this Part ante. 180 20 25 30 1 C.L.R. Theophanous &Another v. Dorothea Shipping Sawides J. under the provisions of section 25
(2)of Law No. 46 of 1963, ,asa relultof theunjustified failure of theowners of the defendant ship to settle their wages. In the wages accounts the wages of the plaintiffs are calculated till 20.11.1978, whereas, according 5 to thejoint statement of counsel for the parties, they left on the 3rd and on the 4th November, 1978,respectively. To the date of departure, however, twenty days wages have to be added (under section 25
(2)of Law 46 of 1963), plus eight days wages for plaintiff in Action No. 455/78 and seven days wages for plaintiff 10 in Action No. 456/78. This brings the date up to which they are entitled to wages, the 1st December, 1978. In conclusion, I find thatplaintiffs are entitled tojudgment in the following amounts: Plaintiff in Action No. 455/78. 15 (
  1. a)Wages till 20.11.78 according"to "" exh. Ά' 136.145 Dr. Plus II days wages as from 20.11.78 till 1.12.78 by 40,000 Drachmas per month 20 14.665 150.810 Dr. (
  2. b)Repatriation expenses C£ 33.800 Plaintiff in Action No. 456/78. 25 ~(
  3. a)Wages till 20.11.78 according to exhibit 15, 94.450 Plus II days wages as from 20.11.78 till 1.12.78 by 36,000 Drachmas per month, 13,200 107.650 Dr. (
  4. b)Repatriation expenses C£ 33.800 (
  5. c)Subsistence allowance C£l 30.000 30 In theresult, Igivejudgment for plaintiffs against thedefend- ant ship as hereinabove, with costs to be assessed by the Registrar. The amounts set outin Drachmasto beconverted into Cyprus Pounds at therate prevailing on 20.11.78 as agreed upon between counsel and so stated to Court. 181 Sawides J. Tbeophanoiis &Another τ. Dorothea Shipping
(1980)The action against defendants 1 stands, as already, dismissed with no order for costs. Judgment against defendant 2 as abovewithcosts. Actionagainst defendants 2 dismissed with no order as to costs. 182 5

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