clr/1980/1980_1_19.pdf

(1980)exceptional risk not contemplated by them when sailing to said port—No evidence that such port was within a war zone area involving war risks not contemplated by the crew—Promise of masterfor payment of bonus in vagueterms and "voidfor absence of consideration as well aifrom public policy"—Claim dismissed. 5 Admiralty—Shipping—Seamen—Claim for expenses of accommodation and maintenance within the town, but whilst still employed on the ship, incurred with authority of the master—Ship owners liable— Sections 53-55 of the Merchant Shipping (Masters and Seamen) Laws, 1963 to

1. Admiralty—Shipping—Seamen—Foreign seamen—Wrongful dismissal—Damages—Viaticum—Termination of employment by arrest and sale of ship—Unjustified failure to pay their wages—They were seamen in distress—Entitled to their repatriation expenses and to ten days double salary—Merchant Shipping (Safety and 15 Seamen) Law, Cap. 292, section I, English Merchant Shipping Act 1906, section 42 and Merchant Shipping Laws, 1963-1979, section
2. All plaintiffs were engaged by the owners of the defendant ship, under contracts of service to serve in various capacities on 20 board the defendant ship for indefinite periods, at agreed remuneration, according to the services rendered by each one of them. Plaintiffin Action 402/78 was employed on 22.8.1978 as a "Third Mechanic" at the monthly salary of 25,000 drachmas and an extra allowance of 10,000 drachmas per month was agreed to be 25 paid to him for any period during which no additional "Third Mechanic" was to be employed on the ship. The defendant ship sailed from Piraeus on 3.9.1978 with destination Tripoli of Lebanon where it arrived on 6.9.1978 and started unloading its cargo. The unloading lasted 32-33 days 30 due to the fact that the situation was abnormal because there were incidents between Christians and Moslems nearly every day within the harbour, in the course of which even people engaged in the unloading of the ship were making use of firearms firing at various directions. As a result of this situation the 35 members of the crew were protesting to the master of the ship who advised them to be patient and promised that he would try to give them a present, as a result of their working under such conditions. After the completion of the unloading the ship was short of 20 40 10 1 C.L.R. 5 10 15 20 25 30 35 Karakiozopoulos & Others v. Ship "Ayia Marina" fuel; shewassupplied with 19tons locally and with the approval of the ship owners and acting upon their instructions the master navigated the shipfrom Tripolito Limassol,havingbeen assured that the owners would make arrangements to supply the ship with fuel upon her arrival to Limassol. The ship arrived at Limassol on the 7th October, 1978 but the master found that no arrangements had been made by the ship owners for the supply of fuel. The crew, to whom wages were due'and unpaid for a long time, being in need of money, - pressed the master for payment of their wages, and in fact, four days after the arrival of the ship, the master left for Athens to get in touch with the ship owners concerning the wages. The ship owners gave him a small amount of money for advances to some of the officers but nothing for the other members of the crew. Upon his return to Cyprus, he informed the crew about the situation and the fact that no money was made available to him for payment of their wages. As a result, the plaintiffs filed thepresent actions*against the shipand a warrant for her arrest was issued on the 17th October,
3. After the arrest of the ship the master remained in charge of the ship and requested the crew to continue their employment on the ship. Plaintiffs continued to be so employed till the day when the ship was sold. Up to the 1st November, 1978, they werebeing accommodated on the ship and all necessary supplies for their maintenance were made. .After the said date, in view. of the fact that the suppliers of provisions refused to supply any moreprovisions oncredit,andalso becauseofthe fact that there was no drinking water on the ship, the master came into agreement with the crew, by authorising them to make arrangements for accommodation within the town of Limassol and for their maintenance at a restaurant whilst they were still employed on the ship. The plaintiffs remained working on the ship till the 20th December, 1978when the ship was sold by public auction. Asfrom the date ofthe arrest of the shiptillthe date of the sale the master was in constant touch with the ship owners, asking them to make arrangements for the payment of the wages, but notwithstanding their promises to do so, they took no steps for settling such wages. See details of their claims at p. 27 post. 21 Karakiozopoolos & Others τ. Ship "Ayia Marina"

(1980)The claims of the plaintiffs in theabove actions were for: (

1. a)Balance of wages and emoluments till the 14th December, 1978 when the petition was filed. (
2. b)Wages and emoluments as from the 14th December, 1978 till judgment. 5 (
3. c)War-zone bonuses. (
4. d)Costs and expenses incurred by them in respect of their maintenanceand/or otherwise, from the 2nd October, 1978 till the 14th December, 1978, within the town of Limassol. (
5. e)Repatriation expenses, and (
6. f)Damages for wrongful dismissal and/or otherwise, amounting to two months basic salary. Moreover plaintiff in Action 402/78 claimed additional remu­ neration due tothefailure of the owners toprovide an additional 15 "Third Mechanic". The action was not defended by the defendant but by an intervener-mortgagee who,onthe 14th December, 1978, brought an action against theship for moneyduetohimundera mortgage and for other incidental expenses and who by leave of the Court 20 became a party to the proceedings as an intervener-defendant. The main evidence in support of plaintiffs' case came from the master of the ship, which stood uncontradicted and was believed by the Court. Held,

(1)that themaster of the ship is the agent of the owners, 25 and the plaintiffs had to obey and comply with his orders as master of the ship; that in this action this Court is not dealing with a dispute between the owners and the master but with claims of members of the crew and the owners, whose liability is admitted by their agent the master; and that the mortgagee 30 (intervener-defendant) stands in the shoes of the owner, and can set up no defence except what the owner can set up.

(2)That the fact that the plaintiffs instituted proceedings against thedefendant ship was notanactof disloyalty amounting to a repudiation of the contractby them;thatthey are,therefore, 35 entitled to their wages which accrued due after as well as before 22 10 1 C.L.R. 5 10 15 20 25 30 35 Karaklozopoulos & Others τ. Ship"Ayla Marina" the issue of the writ and till the day when the ship was sold and their employment, in consequence, terminated under section 13(l)(d) of the Merchant Shipping (Masters and Seamen) Laws, 1963-1976 (see "Fairport" (Vogiatzis. and Others v. Owners of Steamship Fairport) [1966] 2 All E.R. 1026).

(3)(On the claim of plaintiff in Action No. 402/78for additional remuneration due to thefailure of the owners to provide an addi­ tional "Third Mechanic") that such claim for an additional remuneration was part of the agreement of employment of this plaintiff, and, in consequence, he is entitled to such remuneration for so long as an additional "Third Mechanic"was not employed and plaintiff had to perform such additional duties. (As to the right to such claim which may be described as "short hand money", irrespective of the agreement between the parties, see "The City of Malines" [1948] 81 Li.L.R. 96).

(4)(After dealing with the meaning of the terms "wages" and "emoluments"—vide pp. 37-39 post) that the plaintiffs are entitled to their claim, under the heading "wages and emolu­ ments", for remuneration in respect of two and a half days leave per month to which they were entitled under the terms of their employment and which, leave, they did not get.

(5)(With regardto the claimfor war zone bonus) that plaintiffs have not proved that there was any exceptional risk not contem­ plated by them when sailing to Tripoli; that there was no evidence either as to the general opinion among shipping people or any otherevidence to theeffect that Tripoli was at the material time, within a war-zone area involving war risks not contem­ plated by the crew in their original agreement of wages for the voyage when they boarded the ship; that the promise of the master was in a very vague form and does not support the plain­ tiffs' claim; that,in any event, such promise is "void for absence of consideration as well as from public policy" (see Halsbury's Laws of England, 3rd Ed. Vol. 35, p. 169); and that, accordingly, the plaintiff's claim in this respect must fail.

(6)(With regard to the claimfor accommodation and provisions within the town of Limassol) that the master is under a duty to provide the crew with provisions, water, and proper accommoda­ tion and his failure to discharge such duty renders him liable to criminal proceedings (see sections 53, 54 and 55 of the Merchant 23 Karakiozopoulos & Others v. Ship "Ayia Marina"

(1980)Shipping (Masters and Seamen) Law, 1963 (Law 45/63 as amended); that the plaintiffs in the present case made arrangements for alternative accommodation and supply of provisions, actingupontheinstructionsandtheauthority ofthemasterwho, in this way, was avoiding criminal responsibility; that such instructions having been acted upon by thecrew imply an agreement to that effect and a responsibility isimposed upon the ship owners in this respect, through their agent, the ship's master; and that, accordingly, the plaintiffs are entitled to their claim under this heading. 5 10

(7)(With regard totheclaimfor repatriation expenses) that the expenses of relief of distressed seamen can be recovered (see section 42 of the English Merchant Shipping Act, 1906which is applicablebyvirtueofsection 1 oftheMerchant Shipping (Safety and Seamen) Law, Cap. 292); that whether a seaman is "in 15 distress" is a question of fact in each particular case; that in the circumstances of this case the plaintiffs were seamen in distress; that they were not citizens of Cyprus, coming from various foreign countries; they were left penniless in Cyprus and their wages were due to them; that once their employment 20 wasterminated inCyprusbythesaleoftheship,theywerebound to return to their respective countries; and that, accordingly, the plaintiffs are entitled to their repatriation expenses to their respective countries of origin.

(8)(With regardtotheclaimfor damagesfor wrongfuldismissal) 25 that the sale of the ship doesnot constitute a repudiation of the contract by the owners or wrongful dismissal of the seamen on the occurrence of such event (see section 13

(1)of the Merchant Shipping Laws, 1963-1976 (Laws 46/1963 to 24/1976)); that though under section 37

(1)of Laws 46/1963 to 24/1976 the 30 plaintiffs wereentitled, inrespectofeachdayonwhichtheywere in fact unemployed during aperiod of twomonths from the date of termination of their service, to receive wages at the rate to which they were entitled at that date, none of the plaintiffs has adduced any evidence to the effect that in fact he was out of 35 employment for any period up to two months after the sale of the ship; that under section 25 of the same Laws a seaman is entitled, on the termination of the contract, to payment of ten days double salaries if the master or the ship owner fails to pay within a reasonable time and without ajust cause the wagesdue 49 to him; and that, therefore, the plaintiffs are entitled to ten days 24 1 C.L.R. Karakiozopoulos & Others τ. Ship "Ayia Marina" double salaries under this heading as a result of the unjustified failure of the owners to settle the wages of the plaintiffs on the termination of their employment. Judgment accordingly. 5 Cases referred to: The Chieftain[1863] Brown. & Lush. 104 at p. I l l ; Westport (No. 4) [1968] 2 Ll.L.R. 559 at pp. 561, 562; The"Arosa Star" [1959] 2 Ll.L.R. 396 at pp. 401, 402-403; "Fairport" (Vogiatzisand Othersv. Owners of Steamship FairId port) [1966] 2 All E.R. 1026 at pp. 1032, 1034; "The City of Malines" [1948] 81 Ll.L.R. 96; TheBritishTrade[1924] 18 Ll.L.R. 65 at p. 66; Pughv. Henville'and Others [1957] 2 Ll.L.R. 261; Caine and Others v. Palace Steam Shipping Company [1907] 15 1 K.B. 670; λ Robsonv. Sykes [1938] 2 All E.R. 612; PalaceShippingCompany Limited v. Caineand Others [1907] A.C. 386; Tergeste [1903] P. 26; 20 Board of Trade v. The SailingShip Glenpark Ltd. [1904] 1 K.B. 682; Kyrmizoudesv. Ship "Philipoupolis"

(1978)1 CL.R. 526 at p. 538; TheMogileffand Freight[1921] 7 Ll.L.R. 130; 25 TheGeneral Serret [1925] 23 Ll.L.R. 14; First National Bank of Chicago v. Ship "Blockland"

(1977)1 CL.R. 209. ι Admiralty actions. Admiralty actions by themembers of the crew of the defendant 30 ship " Ayia Marina " for their wages, war-zone bonuses and other emoluments, repatriation and maintenance expenses and compensation for termination of employment. JV. Anastassiades, for the plaintiffs M. Vassiliou,for the intervener-defendant. 35 Cur. adv. vult. SAVVIDES J. read the following judgment. The plaintiffs in these actions were members of the crew of the defendant ship 25 Savrides J. Karatiozoponlos &Othersv.Ship "Ayia Marina"

(1980)" AYIA MARINA" and their claim is for balance of wages, war-zone bonuses and other emoluments, repatriation and maintenance expenses and compensation for termination of employment. The plaintiffs were engaged by the owners of the defendant 5 ship by contracts of service made at Piraeus, Greece, to serve in various capacities on board the defendant ship for indefinite periods, the commencement of which varied in each respective case,at agreedremunerations, accordingtotheservicesrendered by each one of them. I shall deal in more detail later in my 10 judgment with the terms of service of each plaintiff. The defendant ship is registered in Cyprus and isflyingthe Cyprus flag. Whilst in the port of Limassol she was arrested by a warrant of arrest dated the 17th October, 1978 issued in Admiralty Action No. 402/78, and was finally sold by public 15 auction on the 20th December, 1978. No appearance was entered on behalf of the ship by her owners and at no stage of the proceedings did they appear to dispute plaintiffs' claims. The action wasfought by an intervener-mortgagee who, on the 14th December, 1978, brought an action against the ship for 20 money due to him under a mortgage and for other incidental expenses and who,by leaveof the Court, granted tohim on the 19th December, 1978,became a party to the proceedings as an intervener-defendant. In such capacity he filed his answer to the petition and defended the case for the protection of his 25 interests. These actions are some of a series of actions brought individually by the Captain, officers and other members of the crew. At an early stage of the proceedings, on the application of the intervener, an order was made for the consolidation of these 30 actions, as well as of all other actions brought against the ship by other members of the crew. When the pleadings were completed, plaintiffs applied to have the evidence of the master of the ship taken preparatory to the hearing and such evidence was taken on the 2nd and completed on the 6th March, 1979, 35 in respect of the present action and other actions brought by the master and other members of the defendant ship. At a later stage, theconsolidation order wasvaried to theextent that the prosent actions remained consolidated and all other actions were left to be heard separately. 40 26 1 CL.R. Karakiozopoulos &Othersτ.Ship"Ayia Marina" Sawides J. Theclaimsin thepresentactionsare drafted ina uniform way subject to modifications concerningamountsfor each individual case, and they fall under the following headings, which are in issue before the Court: 5 (

1. a)Balance of wages and emoluments till the 14th December, 1978 when the petition wasfiled. (
2. b)Wages and emoluments as from the 14thDecember, 1978 till judgment. (
3. c)War-zone bonuses. 10 (
4. d)Costs and expenses incurred by plaintiffs in respect of their maintenance and/or otherwise, from the 2nd October, 1978 till the 14th December, 1978. (
5. e)Repatriation expenses, and 15 (
6. f)damages for wrongful dismissal and/or otherwise, amounting to two months basic salary. The intervener-defendant by his answer admits the employ­ ment of the plaintiffs, as alleged by them, and any payments madeagainst theirwagesbut disputes thatthe'balancedueis as appearing in the statements of claim. He further alleges that 20 the plaintiffs on the 7th October, 1978 wrongfully deserted the ship and in consequence they are not entitled to any wages as from suchdate. Another allegation of the intervener-defendant ' ' is that there was a conspiracy between the master of the ship and thecrew with the object of blackmailing the owners to pay 25 exorbitant claims to the plaintiffs and in furtherance of such objects, they brought the ship to Limassol to arrest same. As a result of suchconduct, they forfeited any claim for wages. It is finally alleged that the proper place and time of payment of outstanding claims was the place where the ship owners have, 30 in fact, their principal place of business. The evidence adduced by the plaintiffs in support of their claims consists of that of the master of the ship, Georghios Voumvlinopoulos, which, as already mentioned, was taken preparatory tothehearing;thatof Andreas Kadros,arestaurant 35 keeper who was feeding them,NicosAnastassiades, counsel for the plaintiffs for identifying the members of thecrew who were being fed at the restaurant, Christos Glykis, a hotel keeper in 27 Savrides J. Karakiozopoulos & Othersv. Ship"Ayia Marina"

(1980)Limassol at whose hotel plaintiffs were accommodated and Costas Demetriou, a travel agest in respect of therepatriation expenses of the plaintiffs. Plaintiffs did notgiveany evidence inperson andrelied solely on theotherevidence adducedby them andthis,due to thefact 5 that theyhadleft Cyprus after thesale of the ship and,withthe exception of plaintiff in Action No. 402/78 who comes from Greece, all other plaintiffs come from very distant countries, such as Pakistan and Liberia and their travelling expenses for comingtoCyprustogiveevidencewould havebeenconsiderable. 10 Thefacts of thecase as comingoutfrom theevidenceadduced by the plaintiffs, are shortly as follows: AHplaintiffs were employed as members of the crew on S/S " AYIA MARINA". Thedates and thekind of their employ­ ment, their remunerationandany paymenttowards theirwages 15 was described by themasteroftheshipandappearsonthewages accounts produced to the Courtas exhibits1-16, in view of the fact that the contracts signed by the parties were in thehands of the defendants particulars in respect thereof, are as follows: Plaintiff in Action No. 402/78 was employed on 22.8.78 as 20 a " ThirdMechanic" atthemonthlysalary of 25,000Drachmas. According to the evidence of the master and the entry on the wages account for this plaintiff which is exhibit 1, an extra allowance of 10,000 Drachmas per month was agreed to be paid to him for any period during which no additional "Third 25 Mechanic" was to be employed on the ship,as the owners were bound to do. Up to 20.11.73 he had to receive a balance of 82,533 Drachmas,after deducting any advances madetohim. Plaintiff in Action No. 407/78 was employed since 18.8.77 on a number of trips on the defendant ship as an "Assistant 30 Cook" at a monthly salary of 20,000 Drachmastill 1.3.78, then reduced to 14,000 Drachmasper monthtill 1.9.78and increased to 20,000 Drachmas per month as from 1.9.

1. According to the three wages accounts signed by the master dated 28.2.78, 30.8.78 and 2.11.78 (exhibits2Ά', 'B', *C), he had to receive 35 a balance of 136,503 Drachmas till 20.11.
2. Plaintiff in Action No. 408/78 was employed on 31.8.78 as a "Sailor" at the monthly salary of 11,000 Drachmas. Accord28 1 C.L.R. Karakiozopoulos &Othersv. Ship"AyiaMarina" Sawtdes J. ing to thewagesaccount signed by the master (exhibit 3)dated 20.11.78, a balance of 28,220 Drachmas was due to him for wages till that date. Plaintiff in Action No. 409/78 was employed on 16.8.78 as 5 "Oiler" at the monthly salary of 11,000 Drachmas.According to the wages account signed by the master (exhibit4) dated 20.11.78, a balance of 33,967 Drachmas was due to him for wages till that date. Plaintiff in Action No. 410/78 was employed on 16.8.78 as 10 a " Mess Boy" at the monthly salary of 9,000 Drachmas. According to thewagesaccount signedbythemaster (exhibit 5), dated 20.11.78, a balance of 27,700 Drachmas was due to him for wages till that date. Plaintiff in Action No. 411/78 was employed on 16.8.78 as 15 "Oiler" at the monthly salary of 11,000 Drachmas. According to the wages account signed by the master (exhibit6), dated 20.11.78, a balance of 33,964 Drachmas was due to him for wages till that date. Plaintiff in Action No. 412/78 was employed on 16.8.78 as 20 "Oiler" at the monthly salary of 11,000 Drachmas. According to the wages account signed by the master (exhibit7), dated 20.11.78, a balance of 33,844 Drachmas was due to him for wages till that date. Plaintiff in Action No. 413/78 was employed on 22.8.78 as 25 "Seaman" at the monthly salary of 11,000Drachmas. According to the wages account signed by the master (exhibit 8)dated 20.11.78, a balance of 31,766 Drachmas was due to him for wages till that date. Plaintiff in Action No. 414/78 was employed to serve as 30 "A.B." at the monthly salary of 11,000 Drachmas. According * to the wages account signed by the master (exhibit9) dated 20.11.78, a balance of 33,664 Drachmas was due to him for wages till that dale. Plaintiff in Action No. 416/78 was employed on 13.7.78 as 35 "Oiler" at the monthly salary of 11,500 Drachmas. According to the wages account signed by the master (exhibit 10) dated 20.11.78, a balance of 50,781 Drachmas was due to him for wages till that date. 29 Sawides J. Karakiozopoulos &Othersτ. Ship"Ayia Marina"

(1980)Plaintiff in Action No.417/78 was employed as "Mess Boy" on 16.8.78at themonthlysalary of 9,000Drachmas. According to the wages account signed by the master (exhibit 11) dated 20.11.78, a balance of 27,800 Drachmas was due to him for wages till that date. Theship sailed on3.9.78 from Piraeuswith destinationTripoli of Lebanon where it arrived on 6.9.

1. Upon arrival at Tripoli, it started unloading its cargo. The unloading lasted 32-33 days due to the fact that the situation was abnormal. This abnormality was described by the master of the ship as 10 follows: " There were incidents between Christians and Moslems nearly every day within the harbour. Thefighting parties were not firing at the ship but there were on the ship remnants of ammunition. During the unloading, people engaged intheunloadingoftheship were making useof firearms 15 firing at various directions and there were empty cartridges on the ship. All the labourers and thereceivers of goods inthe harbour were armed and with tanks. The labourers who were engaged in theunloadingwere accompaniedby armed policemen and soldiers. Use of the arms was made not by the labourers 20 but by thepolicemenand soldiers". As aresult of thisabnormal situation,themembers of thecrew were protesting to themaster of the ship for the situation. The master of the ship to calm them down, advised them to be patient and promised that he would try to give them a present, as a result of their working 25 under such conditions. After the unloading was completed, the vessel was short of fuel. Two days before departure, the ship was supplied with 19 tons, two of which were consumed during thelast two days, for theoperationof the engines for the supply of electricity to the ship. He informed the company 30 owning the ship that he was short of fuel and he was asked to try and get some more fuel locally. After fruitless efforts to be supplied with fuel at Tripoli, he communicated again with the ship owners informing them that thefuel left was notsufficient for a triplonger than to Limassol, 35 Cyprus. With theapproval of theship owners andactingupon their instructions,henavigated theshipfrom TripolitoLimassol, having been assured that the ship owners would make arrange­ ments to supply theship with fuel uponher arrival to Limassol. The ship arrived at Limassol on the 7th October but the 40 30 5 1 CL.R. Karakiozopoulos &Othersv.Ship"AyiaMarina" Sawides J- master found that no arrangements had been made by the ship owners fonthe supply of fuel The crew to whom wages were dueand unpaid for alongtime,beinginneedofmoney,pressed the master for payment of their wages, and in fact, four days 5 after the arrival of the ship,the master left for Athens toget in touch with the ship owners concerning the wages. The ship ownersgavehima smallamount ofmoneyfor advancestosome of the officers but nothing for the other members of the crew. Upon his return to Cyprus, he informed the crew about the 10 situation and thefact that no moneywasmadeavailable tohim for payment of their wages. As a result, the plaintiffsfiledthe present actions against the ship and a warrant of arrest was issued on the 17th October,
2. After the arrest of the ship the master remained in charge of 15 the ship and requested the crew to continue their employment on the ship. Plaintiffs continued to besoemployed till theday when the ship was sold. Up to the 1st November, 1978, they werebeingaccommodated ontheshipand allnecessary supplies for their maintenance were made. After the said date, in view 20 ofthefact that thesuppliersofprovisionsrefused to supplyany more provisions on credit, and also the fact that there was no drinkingwater ontheship,themastercameintoagreementwith thecrew,byauthorisingthem to makearrangements for accommodation withinthetownofLimassolandfor their maintenance 25 at arestaurant whilst theywerestillemployed ontheship. The plaintiffs continued being employed on the ship during day timetill the sale of theship and arrangements weremadeto the effect that two members of the crew, by rotation, would remain on the ship as guards. Whilst the ship was idle in the port of 30 Limassol, sea-water started floating in through the propeller and to save the ship from sinking till repairs were carried out to the propeller, water pumps were hired and some members of the crew were engaged in taking the water out and making the ship safe. 35 On the 20th November, 1978 at the request of the crew, the master issued the wages accounts for wages due to them till that date, and these are the oneswhichwereproduced in Court as exhibits. Thewagesaccountsconcerning thepresent actions are the ones produced as exhibits 1-
3. 40 The plaintiffs remained working on the ship, as explained 31 Sawides J. Karakiozopoulos &Othersv.Ship"Ayia Marina"

(1980)above, till the 20th December, 1978when the ship was sold by public auction. As from the date of the arrest of the ship till the date of the sale the master was in constant touch with the shipowners,asking them tomakearrangementsfor thepayment of the wages,but notwithstanding their promises to do so,they 5 took no_steps for settling such wages. The master further mentioned in his evidence that each member of the crew was entitled topaid leave oftwoand ahalf dayspermonth andthey did not get such leave till theday of the sale of theship. Theplaintiffs for theiraccommodation ataLimassolhotelhad 10 topay£2.250milseach,forbedandbreakfast perday,according to the evidence of P.W.3 Glykis, the owner of "EXCELSIOR" hotel in Limassol. They had also to pay for their subsistence £1,900 mils for two daily meals by special arrangement with a restaurant keeper in Limassol, P.W.I. 15 The evidence of the intervener-defendant turned round his personal opinion as to whether the fuel which was on the ship whensheleft Piraeus,plusthequantitysuppliedtoherinTripoli, according to the evidence of themaster, wassufficient to enable the ship to return to Piraeus. He expressed his opinion that 20 such fuel was sufficient to enable theshipto sailfrom Tripoli to Piraeus and that it was not necessary for the master of the ship to bring the ship to Cyprus. He further proceeded to give his opinion as to what was the practice concerning the payment of wages to members of the crew. His evidence was to the effect 25 that the crew are entitled to draw against their wages, but normally, thefinalaccounting of their wages is done in Greece everythreemonths. In hisevidenceheadmitted that the lawful agent of the ship owners after the ship sailed from Piraeuswas the master of the ship. 30 Thelastwitnesscalled bytheintervenerwasAndreasSeremis, an employee of the Migration Office in respect of the dates of arrival at and departure from Cyprus, of the plaintiffs. This witnessgavesomedatesin respect oftwo or threeplaintiffs, but he was not in a position to give dates for most of them. He 35 said inhisevidence that evenfor theplaintiffs for whom certain entriesappeared in hisrecords,such entries werenotconclusive, inviewofthefact that membersofthecrewofshipsareallowed to disembark and embark by virtue of special permits granted' by the Customs and which are not entered in the records kept 40 32 1 CL.R. Karakiozopoulos & Othersv.Ship"Ayia Marina" Sawides J. at the Migration Office. This, obviously, is the reason why he could not trace any records for all the plaintiffs. This witness was not in a position to say whether any special permits for disembarking and embarking were granted by the Customs in 5 the case of the plaintiffs in the present actions, and no other evidence was called to contradict the allegations of the master of the ship and the other witnesses that during the material time the plaintiffs were in Cyprus. Havingdealtwith the facts of the case,asappearing from the 10 evidence before me, I am now coming to make myfindingson such evidence. The allegation in the statement of defence that there was conspiracy between the master and the members of the crew, has not been substantiated by any evidence called by the inter15 vener-defendant. Themasteroftheship,whengivingevidence, was not asked, in cross-examination, any question suggesting foul playbetweenhimandthecrewandthe intervener-defendant byhis evidencedid not set out any facts supporting suchallegation. Onthequestion astowhether themastercameto Cyprus 20 onhisowninitiative,Ihavebefore metheevidenceofthemaster thathedidsoontheinstructions oftheownersofthe defendant ship and such evidence stands uncontradicted. As to the evidence of the intervener-defendant that there was sufficient fuel to enable the ship to sail from Tripoli to Piraeus, such 25 evidence isbased on calculations and not on actual facts which werewithin the knowledge of the master and whowasthe only person in position to give evidence on this matter. It is,also, inevidence,comingfrom themaster of theship,that the owners of the defendant ship wereinformed that there wasno sufficient 30 supply of fuel enabling the ship to sail from Tripoli to Piraeus andthat themasteractinguponinstructionsreceivedfrom them, hesailed theshiptoLimassol,havingbeenassured that arrangements would have been made by the owners to supply the-ship with the necessary fuel to sail back to Piraeus. 35 • I accept the evidence"of the master of the ship which stands uncontradicted concerning the instructions he received and I findthat he sailed the ship to Cyprus, due to shortage of fuel, doing so under instructions received by the ship owners, with whom he had communicated and who undertook to supply the 40 shipwiththefuel that itrequired tosailfrom CyprustoPiraeus. 33 Savvides J. Karakiozopoulos &Othersτ. Ship"Ayia Marina"

(1980)If the master was not telling the truth, the defendant-intervener could have called anyone of the owners of the defendant ship to contradict the master. I also accept the evidence of the master concerning living conditions on the ship after 1*.11.78 and that as a result of such conditions,arrangements were made 5 by the plaintiffs, on the instructions of the master, for their accommodation and supply of food at Limassol town. Furthermore, the evidence of the master concerning wages due to the plaintiffs, stands uncontradicted and I accept same. I also accepttheotherevidencecalledby theplaintiffs astruthful 10 and reliable evidence. I donotaccept theevidence of theinter­ vener-defendant in respect of the matters alleged by him and I consider such evidence as unreliable coming from guesses and not from the real position as explained by the master. In the light of the evidence accepted by me, I come now to 15 consider to what extent plaintiffs have proved their claims and I shall deal separately with thevarious items claimed by them. A. Wages and Other Emoluments. As Ihave already found, theevidence of themasterconcerning thewagesaccountsproducedbyhimandthecontinuousemploy- 20 ment of the plaintiffs till the sale of the ship, stands uncontra­ dicted. The allegation of the intervener-defendant that the plaintiffs wrongfully deserted the ship on 6.10.78 is entirely unfounded. As to the position of the intervener-defendant vis-a-vis the plaintiff, the intervener-defendant stands in the 25 shoes of ths owners and cannot set up a defence which the owners could not set up against the plaintiffs. The master of theship is theagent of theowners, andtheplaintiffs had toobey and comply with his orders as master of the ship. In these actions, I am not dealing with a dispute between the owners 30 and the master but with claims of members of thecrew and the owners, whose liability is admitted by their agent, the master. As to the position of an intervener-mortgagee, the following appears in a passagein thejudgment of Dr. Lushington in The Chieftain [1863] Brown. & Lush. 104, at p. I l l : " Now, a mortgagee stands in the shoes of the owner, and can set up no defence in this Court, except what the owner can set up. This has been thepractice of theCourt 34 35 1 CL.R. 5 Karakiozopoulos &Othersv.Ship"AyiaMarina" Sawides J. for many years: it allows the mortgagee to come in and defend, but it confines his right of defence to the defences competent to the owner. As it is manifest that the owner wouldhavenodefenceheretotheplaintiff's claimforwages, so neither have the defendants as mortgagees." This casewasreferred to with approval in the Westport (No.4) [1968] 2 LI. L.R. 559. Furthermore, as to the position of the master acting as agent of the owners, the following passage appears in the decision of 10 Worley,C.J. in The "Arosa Star" [1959]2Ll.L.R. 396atp. 401: 15 20 25 30 35 " Now, it will be recalled that, in the instant case, the master of the ship gave evidence (which I accepted in the judgment I delivered intheseactions onJan. 24, 1959)that he was instructed by his owners to dismiss the whole of the ship's company and that he did so, not in breach or by way of repudiation of any contract, but in accordance with the terms of each man's contract, by giving him the notice required thereunder. He further gave evidence that the sums claimed as wages were calculated up to the date of expiry of that notice, which was, as I recollect, in the case of seamen, only a few days from their arrival in their home port-of Bremerhaven in Germany. In view ofthisevidenceoftheir agent, Idonot seehowtheowners could beheard to say in this Court that any portion of the sums claimed was not wages due under the contract, and if they cannot do so, then, following Dr. Lushington, neither can the mortgagees. To adopt the language, once again, of thePresident in The British Trade, sup.,therewas merely a breach of the contract by the employer (by his default in not paying thewages) and the contract subsisted and coulcfbe madethe subject ofa simple claim for wages: there was no repudiation of the contract accepted by the seamen which would have put an end to the contract and given rise to a claim for damages". The fact that the plaintiffs instituted proceedings against the defendant ship was not an act of disloyalty amounting to a repudiation of the contract by them. In the "Fairport" (Vogiatzis and Others v. Owners of Steamship Fairport) [1966] 2All E.R. 1026in which the master and chief officers issued a 35 Sawides J. Karakiozopoulos &Othersv.Ship"Ayia Marina"

(1980)writ in rem claiming wagesand other moneys due to them and the shipwasarrested and subsequently sold,a preliminary point arose as to whether judgment could be given for payment out of thefund in Court ofwagesaccrued after thedateof theissue of the writ, it was held:"The plaintiffs were entitled out of the fund in Court to wages accruing after (as well as before) the issue of the writ because— (

1. i)the issue of a writ claiming only wages and other moneys due did not have the effect of putting an end \Q to the contract of service, with the consequence that wages continued to accrue after the issue of the writ, and, (
2. ii)the rule that claims in an action could be made only in respect of causes of action that had accrued at the \5 commencement of the action was a rule of practice rather thanaruleoflaw,andwassubject toexceptions; itwaswellestablished thatclaimsfor viaticum,covering expenses incurred after the date of the writ, could be made in actions in rem against a ship by seamen and 20 the same should apply to claims for wages." Cairns, J. in delivering thejudgment of the Court at p. 1032 had this to say: " As to thefirstground, I fail to seehow theinstitution of a claim for wages can automatically terminate a contract 25 of service. There is nothing inconsistent with the continuance of servicein a claim of this kind. ,Even if it could be said that the making of such a claim was an act of disloyaltytotheemployerwhichamounted toa repudiation ofthecontract (aproposition which Ishould'find it difficult 30 to accept in 1966 even if it could be so regarded in 1875), this would, at the most, entitle the employer to accept the repudiation and dismiss the servant. If he allows him to continue working, I can see no reason for saying that the contract is at an end and that wages no longer accrue. 35 Alternatively, if it were suggested that the nonpayment of wages was a repudiation of the contract by the employer, I do not consider that the issue of a writ merely claiming the wages is an acceptance of such repudiation. It would 36 5 1 C.L.R. Karakiozopoulos &Othersτ.Ship"Ayia Marina" Sawides J. be a different matterif theplaintiff by his writ orstatement of claim alleged a fundamental breach of contract and claimed damages on the basis that the contract was at an end". 5 10 And at page 1034 of the same judgment: " In the absence of any authority which binds me to say thattheissueof awrit putsanendtothecontractof service, and being satisfied in principle that the issue of a writ claiming only wages and other moneys due can have no such effect, I am of the opinion that the wagescontinueto accrue after proceedings are commenced. And, if wages continueto accrue, Ithink that it mustfollow that they are recoverable by action and not merely as part of the costs of an action". 15 Intheresult Ifindthattheplaintiffs areentitledtotheirwages which accrued due after as well as before the issue of the writ and till the day when the ship was sold and their employment; in consequence, terminated under section 13(l)(
3. d)of the Merchant Shipping (Masters and Seamen) Laws, 1963 (Law 20 No. 46 of 1963 to Law No. 24 of 1976). As to theclaim of plaintiff inAction No.402/78 for additional remuneration due to the failure of the owners to provide an additional "Third Mechanic", I am satisfied from the evidence of themaster that such claim for an additional remunerationof 25 10,000 Drachmas per month, was part of the agreement of employment of such plaintiff, and, in consequence, plaintiff is entitled to such remuneration for so long as an additional "Third Mechanic" was not employed and plaintiff had to per­ form such additional duties. According to the evidence of the 30 master and the wages account (exhibit 1), he was performing such duties for a period of two months and three days. As to the right to such a claim which way be described as "short hand money", irrespective of theagreementbetween theparties, thereis authority in "The Cityof Μalines"[1948]81 Ll.L.R. 96. 35 I comenow to consider whether plaintiffs are entitled totheir claim under the heading "other emoluments" of remuneration inrespect of two anda half days leave, per monthwhich,accord­ ing to theevidence of the master, they were entitled undertheir terms of employment and which, leave, they did not get. In 37 Sawides J. Karakiozopoulos&Othersv. Ship"Ayia Marina"

(1980)The"Arosa Star" (supra)a Bermuda Supreme Court case, Sir Newham Worley, C.J. had this to say at pp. 402-403: " 'Wages' is defined by Sect:742 of theMerchantShipping Act, 1894, as including emoluments. Since this is a question of remedy and the lex fori applies, I think that 5 definition must apply even to the case of a"foreign ship and foreign seamen;(see TheMilford

(1858)Scab. 362, at p. 367; and The Tagus sup.). Wages.have been held to include a -bonus (TheElmville(No.2), [1904] P. 422, and Shelford v. Mosey [1917] 1 K.B. 154); also a victualling 10 allowance {The Tergeste, [1903] P. 26).' This case relates to an Italianship seized in England andsold at theinstance of the Italian crew in an action for wages. Mr. Justice Phillimore held "that a victualling .allowance payable to the crew was equivalent to wages carrying a maritimelien. 15 'Wages' has also been held to include a master's national insurance contributions, where these have been agreed to be paid by the owner (The Gee Whiz, [1951] Γ Lloyd's Rep. 145, referred to in Temperley's Merchant Shipping Acts (5th ed.);at p. 121,n. 5). I would refer once again 20 to the passage in thejudgment of Sir Henry Duke in The British Trade [1924] P., at pp. 108 and 109; [1924] 18 Ll.L.Rep., at p. 66, in which he referred to decisions in theCourt of Admiralty which extend over a long period, and under which the seaman's lien 25 has been held to include subsistence money, viaticum, and as it seems, whatever he could be fairly said to have earned by his services. Consistent with this is the language of Sir FrancisJeune, P., in TheElmville (No. 2), sup., at p. 428, where he said, 30 referring to a bonus claimed by the master: Ifitis notwages, I amsatisfied itisanemolument; but I should rather call it wages, because that word is used in the Act in a large sense so as to include, not only what a master gets as a wage, but what he 35 obtains in the course of his service as recompense for the execution of his duty. I think this is a matterinwhich theCourts must keepup~ 38 1 CL.R. •5 10 Karakiozopoulos &Othersv.Ship"AyiaMarina'* Sawides J. to^date and have regard to the changed and changing .conditions of seamen's employment.* I suppose that, to-day, few are serving under the old simple maniner's contract for a specified voyage, and that, as a consequence of changed conditions and modern conceptions of welfare, most seamen areengaged onspecial contractswhich provide for notice of termination of service, paid leave, sick-leave, bonuses, and so on, which can be and are properly regarded as additions to wages,'additions which the mariner can 'be fairly said to have earned by his servises'." • The above principles were adopted by Karminski, J. in the "Westport" (No. 4) [1968] 2 Ll.L.R. 559, who had further this to.add at p. 562: 15 20 "I do not myself find the word 'emoluments' very easy to define; but it really comes to this; that it may generally cover something which is received by a member of a ship's company from which he receives a benefit 'as recompense for the execution of his duty'. That phrase is derived from ajudgment of Sir Francis Jeune, P., in TheElmville (No. 2), [1904] P. 422"! In The British Trade [1924]-18 Ll.L.R. 65 at p..66, Sir Henry Dukeindeliveringthejudgment oftheCourtdrewthe distinction between the claim for wages and the claim for damages under a seaman's contract, as follows: 25 30 35 "The distinction between a"claim for-wages and a claim for damages under a seman's contract which has been broken depends upon" purely legal considerations. The best answer, I think, is that if there has been merely a breach of the contract by the employer, the contract subsists and can be made the subject of a simple claim for wages: but, on the other hand, if the employer has repudiated the contract and the seaman has accepted the repudiation, the contractus at an end, and any claim to be made by him in . respect of. its stipulations is a claim for damages (see .Johnstone v. .Milling 16. Q.B.D. 560": In the light of the above, I find that plaintiffs are entitled to this claim under' the heading Wages arid Other Emoluments. B. War Zone Bonus, Plaintiffs base their claim in this respect, on a promise given 39 Sawides J. Karakiozopoulos&Othersv.Ship"AyiaMarina"

(1980)to them by themaster of theship. Suchpromise, asappearing from theevidenceofthemaster,wasasfollows: Inviewofthe prevailing political conditions at Tripoli in the course of the unloading and as a result of complaints made by the members of the crewas to such situation, the master advised them to be 5 patient and promised that hewould try to give them a present due to their working under such circumstances and for their psychological condition. Such promise was in general terms, without having mentioned to them what the nature of this present would have been. The master went on to say that 10 according to information he received, such promise entailed paymentoftwomonthswages. Suchinformation ofthemaster is clearly hearsay evidence, having not been communicated to theplaintiffs, and inconsequence, isnot admissible. Besidesthe fact thatthepromisewasverygeneral and madeinaveryvague 15 way, I haveno evidencebefore meto theeffect that thecircumstances with which the plaintiffs were faced, were beyond their contemplation when they were engagedJ o sail there, and when the ship in fact arrived there. The voyage was an ordinary commercial voyage, aswascontemplated by the agreement and 20 plaintiffs were not asked to proceed to any other port for the purpose of unloading, where circumstances of war zone operations existed. The plaintiffs knew where the ship was sailing and they must haveknowntheexistenceornot ofany abnormal circumstances in Tripoli at the material time. They never 25 objected to sail to such port or raised any claim that the ship was destined to sail to war zone area. As a general rule, seamen are not entitled to claim any additional wages in respect of services rendered in the course of the period of engagement, even though the master has agreed 30 to pay them, the contract beingconsidered void for absence of consideration, as well as from public policy. (Vide Halsbury's Laws of England, Third Ed. Vol. 35. p. 169). One of the exceptions referred to therein, is stated as follows: " The owners may befound by an agreement inreasonable 35 terms made by the master to pay extra remuneration to the crew to bring a vessel home from a foreign port after warhasbroken outandthecrewhaverefused tosail unless they are paid such extra remuneration in view of the war risksnot contemplated by the crew in their original agree- 40 ment of wages for the voyage". 40 1 C.L.R. Karakiozopoulos &Othersv. Ship"Ayia Marina" Sawides J. Reference is made therein under note (

1. p)on the same page, to the case of Pugh v. Henville and others, [1957] Ll.L.R. Vol. 2 p. 261. In that case seamen engaged on a steamship under articles which covered voyage to Mediterranean Sea refused 5 to prepare the ship for sea, on the allegation that the voyage was dangerous because the port of their destination was considered by them as dangerous as being within a war zone area due to the prevailing circumstances at the material time in Cyprus. As a result of their refusal, informations were preferred 10 against themfor such refusal and theDivisional Courtof Queen's Bench Division allowed an appeal from the decision of the Justices who tried the informations to acquit them. The Justices found that the respondents honestly and reasonably believed that such risks existed by reason of the activities in the ports at 15 that period when large quantities of war materials were being loaded. Although no exceptional risk to merchantile vessel was known to exist in the Suez or Cyprus areas at the material time, the respondents honestly believed that such risk did exist. It was held by the Divisional Court on appeal that— · 20 25 30 " If there is no risk in fact or the general opinion among shipping people and those who have to deal with these matters is that there is no risk, it cannot be a sufficient justification for a man refusing to obey thelawful orders of his officers to say, Ί think there is a risk'. The fact is that none of these men were called. There was no evidence given except that there was no exceptional risk'." As to the existence of such exceptional risk due to war zone operations, guidance may be found in Caineand othersv. Palace Steam Shipping Company [1907] 1 K.B. 670 and Robson v. Sykes [1938] 2 All E.R. 612. On the evidence befote me I am not satisfied that plaintiffs have proved— (
2. a)'that there was any exceptional risk hof contemplated by them when sailing to Tripoli. 35 40 (
3. b)There is no evidence either as to the general opinion among shipping people or any other evidence to the effect that Tripoli was at the material time, within a war-zone area involving was risks not contemplated by the crew in their original agreement of wages for the voyage when they boarded the ship. 41 Sawides J. Karakiozopoulos & Othersv.Ship"Ayia Marina" .

(1980)(

1. c)The promise of the master was in a very vague form and does not support the plaintiffs' claim. In any event, Ifindsuchpromise"voidfor absenceofconsiderationaswellasfrom publicpolicy".• (VideHalsbury's Laws of England, 3rd.Ed. Vol. 35, p. 169supra). 5 Intheresult, Ifindthat plaintiffs' claim inthisrespect,fails. C. Accommodation and Provisions. Under the Merchant Shipping (Masters and Seamen) Laws 45/63 and 24/76, sections 53, 54,,55 (amended by section 4 of Law 33/65), which come under a general Part IX, under the 10 heading Provisions, Healthand Accommodation, wideprovision is made imposing a duty upon the master to provide the crew with provisions, water, proper accommodation and the failure of the master to discharge such duty, renders him liable to criminal proceedings. Suchprovisions,infact, adopt theprovi- 15 sions contained in the English Merchant Shipping Act, 1894, sections 198 and 199. In Palace ShippingCompany Limited v. Caineand Others^ [1907] A.C. 386, where there was a wrongful discharge of seamen, the House of Lords in dealing with matters touching 20 wages and maintenance after their dismissal, held that the seamenwereentitled totheirwagesuntil thefinalsettlement and to the costs of maintenance for the same period under thehead of damages for wrongful dismissal. Lord Loreburn, L.C. in dealing with the question of maintenance is reported at page 25 392 to have said: " TheCourt ofAppealawardedalsoasumfor maintenance, apparently regarding that as included in the term 'wages'. I would prefer to treat it as damages for the wrongful discharge. In the result it comes to the same thing, for 30 the men were deprived of their provisions, and that wasan item of their loss." And Lord Macnaghten at page 393— " Thereismoredifficulty aboutthequestionofmaintenance. Idonotthink that theterm 'wages',asusedintheMerchant 35 Shipping Act of 1894, can include an allowance for maintenance. But Idonot think that the judgment of the 42 1 CL.R. Karakiozopoulos&Othersv.Ship"AyiaMarina" Sawides J. Court of Appeal ought to be disturbed, because it seems to me that the claim for maintenance may be sustained under the head of damages for breach of agreement." Ofcoursea distinction has to bedrawn between that case and 5 the present one, in that, in the present case, the claim for maintenance and accommodation, does not arise after the termination of the contract, but during the time the contract was in force, and, as a result of the inability of the master to get the necessary provisions due to the failure of the ship owners 10 to provide him with the financial means, and also due to the living conditions on the ship. The plaintiffs in the present case made arrangements for such alternative accommodation and supply of provisions, acting upon the instructions and the authority of the master who, in 15 this way, was avoiding criminal responsibility and such instructions having been acted upon by the crew, imply an agreement to that effect and a responsibility is imposed upon the ship owners in this respect, through their agent, the snip's master. In the Tergeste [1903] P. 26, a victualling allowance payable 20 to the crew, was treated as equivalent to wages, and, in consequence, carrying a maritime lien. This case was referred to in the "Arosa Star" (supra) by Sir Newham Worley, C.J. in the interpretation of the words "wages". Also, in Halsbury's Laws of England, 3rd Ed., Vol. 35, under 25 note (
2. p)to para. 1208 at p. 785 which is dealing with the lien for wages of the master and seamen which attach to the ship and freight: 30 35 " (
3. p)Wages includes subsistence money, viaticum, compensation for wrongful dismissal, money allowance instead of food, a bonus to a master to stand by a ship and bring her home (The Madonna D'Idra

(1811), 1 Dods. 37, at p. 40; Phillips v. Highland Rail. Co., The Ferret [1883] 8 App; Cas. 329, P.C.; 5 Asp. M.L.C. 356; The Tergeste, [1903] P. 26;9 Asp. M.L.C. 356; TheBritish Trade, [1924] P.104; 16 Asp. M.L.C. 296)" In this respect vide also the "Westport (No. 4)" (supra). In the light of the above I find that the plaintiffs are entitled to their claim under this heading. 43 Sawides J. Karakiozopoulos &Othersv. Ship"Ayia Marina"

(1980)In their statementsof claim theplaintiffs' claim inthisrespect is for a period as from 2.10.1978, whereas, according to the evidence both of P.W.3, the hotel keeper, and P.W.I, the restaurant keeper, which I have accepted,theywere so provided for aperiod of 42days only. Thecost of suchfacilities for each 5 oneof them amountsto£4.150 milsper day, (£1,900 mils provi­ sions at the restaurant and £2.250 mils accommodation at the hotel)., D. Repatriation Expenses. It has been argued by counsel for the intervener-defendant 10 that the plaintiffs are not entitled to any repatriation expenses, in view of the fact that they were members of a shipflyingthe Cyprus flag and they were at a Cyprus port when theship was arrested and sold. Counsel contended that the only provision for repatriation expenses contained in the Merchant Shipping 15 Law, 1963, (Law No. 46/63), is under section 65

(1)which is applicable only to crew of ships flying the Cyprus flag whose services are terminated at a port outside the Republic. Section 65

(1)to which counsel for the intervener-defendant referred, provides that where the employment of a seaman is 20 terminated without his consent,at a port outside theterritorial waters of the Republic, the master is bound to pay his wages and also take all steps for the maintenanceand repatriation of the sailor to the port where he boarded the ship or to a port of thecountry where he belongs or to theport contemplatedby 25 their agreement. It is correct that there is no express provision in Law 46/63 in thisrespect. Undersection 1,however, of the Law, reference is made to the Merchant Shipping (Safety and Seamen) Law, Cap. 292 which should be read in conjunction with the same 30 Law. Under section 1 of the Merchant Shipping (Safety and Seamen)Law, Cap.292,suchLaw shall beconstruedas onewith theMerchant ShippingActs andsuchActs areinterpreted under section 2 as meaning the English Acts of Parliament cited as Merchant Shipping Acts, 1894-1950, and any other act amend- 35 ing or substituted for the same. Infact, by section 111 of Law 46/63, reference is made to the Merchant Shipping Acts of 1895 and 1906 as follows: " Αίρεται ή έν ifj Δημοκρατία εφαρμογή τοΰ Μέρους IIτοϋ 44 1 C.L.R. Karakiozopoulos&Othersv.Ship"AyiaMarina" Sawides J. περί "ΕμπορικήςΝαυτιλίας Νόμουτοΰ 1895 έν φ διαλαμβά­ νονται τά άρθρα 92 2ως266, αμφοτέρων τών άρθρων τούτων περιλαμβανομένων, ως καΐ ή εφαρμογήτών άρθρων 31,32€ 40 καΐ 45 τοΰπερί 'ΕμπορικήςΝαυτιλίας Νόμουτοΰ 1906." 5 ("Part II of the Merchant Shipping Act, 1895, containing sections 92 to 266, both inclusive, and sections 31, 32, 40 and 45 of the MerchantShipping Act, 1906, shall cease to have effect in the Republic"). Under section 42 of the English Merchant Shipping Act, 10 1906, there is provision for recovery of expenses of relief of distressed seaman(eitherfor hismaintenance,necessary clothing, conveyance to a proper returnport,or in thecase of death, for his burial or otherwise (section 42

(1)). The question as to whether a seaman is "in distress" is a 15 question of fact in eachparticular case. IntheBoard ofTrade v. The Sailing^Ship Glenpark Ltd., [1904] 1K.B. 682 it was held that even "receipt of wages by seaman sufficient to maintain him and pay his passage to a return port, does not necessarily show that he was not a distressed seaman." 20 In the circumstances of the present case, I have no difficulty infindingthattheplaintiffs were seamen indistress. They were not citizens of Cyprus, comingfrom various foreign countries, they were left penniless in Cyprus and their wages were due to them. Once their employment was terminated in Cyprus by 25 thesale of theship,theywereboundtoreturntotheir respective countries. The proper returnport is eithertheport at which theseaman was shipped or a port in the country to which he belongs, or some other port agreed to by the seaman, in the case of 30 a discharged seaman, at the time of his discharge. This can be gathered from the context of section 65

(1)of Law 46/63. Repatriation expenses were allowed in Kyrmizoudesv. Ship "Philipoupolis"

(1978)1 CL.R. 526 at p. 538, which was also a shipflyingthe Cyprusflagwhich was arrested whilst lyingin 35 the port of Limassol. In making an order for appraisement and sale pendente lite of the defendant ship, Triantafyllides P. included the following in the order: "The crew shall leave the vessel before the sale is com45 Simides J. Karakiozopoulos &Othersv.Ship"Ayia Marina"

(1980)menced and the Marshal is hereby authorized to make proper arrangementstopaythemtheirrepatriationexpenses and to make to each one of them a reasonable, in his opinion, agreed advance on wages that may appear to be lawful to him; in case of failure to reach agreement with 5 any one of them in this respect the Marshal should seek the directions of the Court. Any expenses to be incurred, asabove,by the Marshal shall bemet, in thefirstinstance, out of theproceedsofthesaleoftheshipwhich,asalready ordered, are to be paid into Court". 10 In the Westport (No.4) (supra), Karminski, J. found that the plaintiff was entitled on termination of employment to his repatriation expenses. At page 561,he reiterated the principle expounded by Worley, C.J. intheArozaStar (supra) that when a mariner's contract is under consideration, it is construed on 15 the basis that the mariner is entitled to the benefit of the doubt. As to repatriation expenses, there is also authority in the Fairport (supra) where it was held that it was well established that claims for v i a t i c u m could be made in actions in rem 20 against a ship by seamen. ( " V i a t i c u m " is defined in the footnote to the said report as travelling money.) The position of crews of arrested ships regarding provisions, wagesandrepatriation isdealtwithintheBritishShippingLaws. No. 1" Admiralty Practice" at page 120para. 274 as follows: 25 " Crews, particularly crews of ships under flags of convenience, often find themselves in difficult circumstances if theshipowner becomesinsolvent;creditcannot beobtained and, unless assistance is forthcoming, considerable hardship will be suffered by the seamen when their supplies are 30 exhausted. In such circumstances, the marshal, although he is only the custodian of arrested property, provides for the crew under the authority of the omnibus order. Expenses of this nature are a drain, ultimately, on the proceeds of sale of the ship, and therefore, if one of the 35 principal creditors thinks fit he may apply to the Court for leave to pay off the crew and stand in their shoes. Alternatively, the marshal may be ordered to repatriate 46 1 C.L.R. 5 10 Karakiozopoulos& Othersτ.Ship"Ayia Marina" Sawides J. a foreign crew and to include the expense of so doing in his charges. It would not be practical to ask for such a direction without including a request that an advance be made in respect of outstanding wages, otherwise the crew would probably refuse to do. Often the consul for the country to which foreign seamen belong will arrange for their repatriation, and the moneys expended in this way will usually be recovered from the individuals concerned by the consul outside "the scope of the action. The amounts are included in the action of the master and crew for wages as part of their claims." Reference is made in the above to The Mogileff and Freight [1921] 7 L1.L.R., 130, and The GeneralSerret [1925] 23 Ll.L.R., 14. 15 20 The above cases are also referred to in the First National Bank, Chicago v. Ship "Blockland"

(1977)1CL.R. 209 a ship flying the Cyprus flag where A. Loizou, J. granted an order in respect of several matters sought by an application to the Court, one of which was authorisation to the applicants to dismiss and repatriate the crew members after paying for their repatriation expenses, and for their claims for wages. In the GeneralSerret case (supra) Mr. Justice Hill in dealing with a motion on behalf of the master of the vessel for the appraisement and sale of the vessel and also with a summons 25 for particulars, madethe following remarks at page 15: "some­ thing had to be done with regard to the crew and in the last resort he could direct the Admiralty Marshal to repatriatethem and make the cost part of his charges which would be the first claim against the ship and finally he made such order". And 30 His Lordship added that if someone could be found who would pay thecrew's wagesand stand intheir shoes in theclaim against the owners, it would be an advantage. 35 The same Judge in the Mogileff case is reported to have said that he would give the plaintiffs power to pay off all claims of the crew supported by maritime lien and to stand in the shoes of the crew with regard to those claims. His Lordship added that somebody must get the crew out of the ship which was to be sold by theMarshal on May 3,and,if necessary, the plaintiffs would have leave to provide v i a t i c u m . 47 Sawides J. Karakiozopoulos& Others?.Ship"AyiaMarina"

(1980)In the circumstances of this case I find that the plaintiffs are entitled to their repatriationexpenses totheir respective countries of origin. Such expenses according to the evidence before L Oamount to C£142.500 for each of the plaintiffs in Actions Nos. 407/78, 5 409/78-414/78 and 417/78 who come from Pakistan C£235.— for plaintiff in Action 408/78 who comes from Liberia, C£40.— for plaintiff in Action 402/78who comes from Greeceand£18.— for plaintiff in Action 416/78 v,x\o comes from SynV. E. Damages. 10 The plaintiffs, under this heading, claim two months* wages as damages for wrongful disnvr.sal and/or otherwise. As I have already found, the plaintiffs continued to be employed by the defendant ship till 20.12.78, when the ship was sold by public auction and in consequence their services were 15 terminated. The sale of the ship does not constitute a repudia­ tion of the contract by the owners or wrongful dismissal of the seamen on the occurrence of such event. Under section 13

(1)of the Merchant Shipping Laws 46/63 to 24/76, an agreement is treated as at an end, on the occurrence of the following things: 20 "13.—

(1)Ή σύμβαση μετά τοΰ πληρώματος λύεται— (α) έτπ τη παρόδω τοΰ χρόνου δι* ην συνήφθη ή σύμβασις, ή τω τερματισμφτοΰ πλου δι' ον συνήφθη ή σύμβαση, δια της άποβιβάσεως τών επιβατώνή τηςεκφορτώσεως τοΰ φορτίου ή δια της άποβιβάσεωςτών επιβατών καΐ 25 της εκφορτώσεως τοΰ φορτίου. (β) έπι τη άττωλεία τοΰπλοίου. (y) επί τ φ ναυαγίω αΰτοϋ ή τη άπωλεία της Κυπριακή^ σημαίας. (δ) έπϊ τη πωλήσει τοΰ πλοίου δια δημοσίου πλειστηρια- 30 σμοΰ." ("13.—

(1)An agreement with the crew shall be terminated— (

1. a)on the effluxion of the period for which it has been entered or on the termination of the voyage, by the disembarkation of the passengers or the discharge of the cargo or both, for which it was made; (
2. b)on the loss of the ship; 48 35 1 C.L.R. Karakiozopoulos &Others v. Ship "Ayia Marina" Sawides J . (
3. c)on the wreck or loss of the Cyprus flag; (
4. d)on the sale of the ship by public auction."). 5 10 15 20 25 30 35 Section 37

(1)of the same Laws provides for the payment of wages in the case of termination of employment as a result of events contemplated by section 13

(1)as follows: "37.—

(1)'Εάνή υπηρεσίαναυτικούυπηρετούντος έπϊ Κυπρι­ ακούπλοίουτερματισθηπρότης προβλεπομένηςέντησυμβάσει ημερομηνίας, λόγω ναυαγίου, άπωλείαςήτης διαδημοσίου πλειστηριασμού πωλήσεως πλοίου, οΰτος 0ά δικαιούται νά λαμβάνηδι' έκάστηνήμέραν καθ' ήυούτοςείναιέντηπράγματικότητι άνευ εργασίας διαρκούσης της περιόδου τών δύο μηνών από της ημερομηνίας καθ'ήυ Ιτερματίσθη ή υπηρεσία αυτού, τους μισθούς εις ους έδικαιοΰτο μέχρι της ημερομηνίας ταύτης." ("37.—

(1)When the service of a seaman employed on a Cyprus ship terminates before the date contemplated in the agreement, by reason of the wreck, loss or sale at public auction of a ship, he shall be entitled, in respect of each day on which he is in fact unemployed during a period of two months from the date of the termination of the service, to receive wages at the rate to which he was entitled at that date."). In the present case none of the plaintiffs has adduced any evidence to the effect that in fact he was out of employment for any period up to two months after the sale of the ship. This is a necessary prerequisite under section 37

(1)to enable a plaintiff to recover any such amount and in theabsence of such evidence, plaintiffs cannot recover what is provided by that section. Under section 25, however, a seaman is entitled, on the termination of the contract, to payment of ten days double salaries if the master or theship owner fails to pay within a reasonable time and without a just cause, the wages due to him. Section 25

(2)reads as follows: " 'Εάνό πλοίαρχοςή ό πλοιοκτήτης παράλειψηάνευευλόγου αίτίας νά προβή ε!ς την καταβολήν τοΰ μισθού κατά τον προσήκοντα χρόνον, ούτος Θα καταβάλη είς του ναυτικόν ποσόν μή υπερβαίνον τον μισθόν δύο ήμερων δι* έκάστην ήμέραν καθ' ην ούτος ευρίσκεται έυ υπερημερία πληρωμής, 49 Sawides J. Karakiozopoulos& Othersv. Ship"AyiaMarina"

(1980)το πληρωτέον όμως ποσόν δέν δύναται νά ύττερβαίνη δέκα ήμερων διπλούς μισθούς". ( " I f a master or owner fails, without reasonable cause, to make payment at the appropriate time, he shall pay to the seaman a sum not exceeding the amount of two days' during which payment is delayed beyond that time,but the sum payable shall not exceed ten days' double pay."). 5 I, therefore, find that plaintiffs are entitled to ten days double salaries under this heading as a result of the unjustified failure of the owners to settle thewages of the plaintiffs on the termina- 10 tion of their employment. This item is recoverable as wages under the provisions of section25

(3)and I award in this respect to the plaintiffs, be way of additional wages, a sum equivalent to twenty wages (ten days by two). In concluding, I find thatplaintiffs are entitled to thefollowing amounts: 15 Plaintiff in Action No. 402/78 (

1. a)wages up to 20.11.78 according to the wages account till that day, Plus wages for one month as from 20.11.78 to 20.12.78 82.533 20 25.000 (
2. b)ten days leave in respect of four months and 20 days as additional wages for arrears of payment of their wages when due, (10 double wages), a total of 30 days, 25.000 (
3. c)42 days maintenance and accommodation at £4.150 per day, £174.300 (
4. d)Repatriation expenses £ 40 25 132.533 Dr. 30 £214.300 Plaintiff in Action No. 407/78 (
5. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78 (
6. b)40 days leave (2 1/2 days from 50 136.503 20.000 35 1 CL.R. Karakiozopoulos &Otbers τ.Ship "Ayia Marina" 18.8.77-20.12.78 and 20 days wages in respect of arrears (total two months by 20,000Dr.) 40.000 (
7. c)42 days maintenance and accommodation at £4.150 per day £174.300 (
8. d)Repatriation expenses £142.500 Sawides J. 196.603Dr. £316.800 Plaintiff in Action No. 408/78 10 15 20 (
9. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78 28.220 11.000 (
10. b)ten days leave in respect of four months and 20 dayswages for arrears, a total of another month, 11.000 (
11. c)42 days maintenance and accommodation at £4.150 per day £174.300 (
12. d)Repatriation expenses £235.000 30 33.967 11.000 (
13. b)ten days leave in respect of four months and 20 dayswages in respect of arrears, a total of another month, 11.000 (
14. c)42 days maintenance and accommodation at £4.150 per day £174.300 (
15. d)Repatriation expenses £142.500 Plaintiff in Action No. 410/78 35 £409.300 Pla intiff in Action No. 409/78 (
16. a)wages till 20.11.78 plus wages from 20.11.78 till 20.12.78 25 50.220 27.700 (
17. a)wages till 20.11.78 plus wages from 20.11.78 till 20.12.78 11.000 51 55.967Dr. £316.800 Sawides J. Karakiozopoalos&Otbersτ.Ship"AyiaMarina" (
18. b)ten days leave in respect of four months and 20 days wages for arrears, a total of one month, 11.000 (
19. c)42 days maintenance and accommodation at £4.150 per day, £174.300 (
20. d)Repatriation expenses £142.500 0980) 49.700 Dr. £316.800 Plaintiff in Action No. 411/78 (
21. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78 33.964 10 11.000 (
22. b)ten days leave in respect of four months and 20 days wages for arrears, a total of one month, 11.000 (
23. c)42 days maintenance and accommodation at £4.150 per day, £174.300 (
24. d)Repatriation expenses, £142.500 15 55.964 Dr. £316.800 20 Plaintiff in Action No. 412/78 (
25. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78, 33.844 11.000 (
26. b)ten days leave in respect of four months and 20 days wages for arrears, a total of one month, 11.000 (
27. c)42 days maintenance and accommodation at £4.150 per day, £174.300 (
28. d)Repatriation expenses, £142.500 25 55.844 30 £316.800 Plaintiff in Action No. 413/78 (
29. a)wages till 20.11.78 plus wages from 20.11.78 till 20.12.78 31.766 11.000 52 35 1 CL.R. 5 Karakiozopoulos &Others v.Ship"Ayia Marina" Sawides J. (
30. b)ten days leave in respect of four months and 20 days wages for arrears, 11.000 (
31. c)42 days maintenance and accommodation at £4.150 per . day, £174.300 (
32. d)Repatriation expenses, £142.500 ·£316.800 53.766 Dr. Plaintiff in Action No. 414/78 10 (
33. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78, 33.664 11.000 (
34. b)ten days leave in respect of four months and 20.days wages for arrears, 11.000 55,664 Dr. 15 (
35. c)42 days maintenance and accommodation at £4.150 per day, -. £174.300 (
36. d)Repatriation expenses, £142.500 £316.800 Plaintiff in Action No. 416/78 20 (
37. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78, 25 50.781 11.000 (
38. b)ten days leave in respect of four months and 20 days wages for arrears, 11.000 (
39. c)42 days maintenance and accommodation at £4.150 per day, £174.300 (
40. d)Repatriation expenses, £ 18.000 30 Plaintiff in Action No. 417/78 (
41. a)wages till 20.11.78, plus wages from 20.11.78 till 20.12.78, 27.800 19.000 53 72,781 Dr. £192.300 Sawides J . Karakiozopoulos & Others τ.Ship "Ayia Marina" (
42. b)ten days leave in respect of four months and 20 days wages . for arrears,

(1980)9.000 . 45.800 Dr. (

1. c)42 days maintenance and accommodation at £4.150 per day, £174.300 (
2. d)Repatriation expenses, £142.500 5 £316.800 In theresult, I givejudgment infavour of eachof the plaintiffs against the defendant ship accordingly. Concerning the amounts referred to in Drachmas, the judg- 10 ment will be in their equivalent in Cyprus Pounds at the rate prevailing on 20.12.78, such date for conversion having been agreed upon by counsel appearing in these actions. Defendants also to pay to plaintiffs the costs of theseactions to be assessed by the Registrar. 15 Judgment and order for costs as above. 54