clr/1980/1980_1_327.pdf

(1980)agreement as he has not contracted personally but acted on behalf of the principal; and that, therefore, the action against him must be dismissed. Action dismissed. Admiralty Action. 5 Admiralty action for damages for breach of charterparty and/or booking note and/or agreement for the carriage of cement by sea from Larnaca-Limassol to Alexandria-Port Said. E. Vrahimi (Mrs.), for the plaintiffs. 10 P. Demetriou, for the defendant. Cur. adv. vult. A. Loizou J. read the following judgment. The claim of the plaintiff Company against the defendant is for damages for breach of charterparty and/or booking note and/or agreement 15 dated the 23rd July, 1977, for the carriage of cement by sea with the ships "AYIOS GEORGHIOS" and/or "AYIOS DEMETRIOS" and/or "PAULINE", from Larnaca-Limassol to Alexandria-Port Said. It is the case for the plaintiffs that on or about the 23rd July, 20 1977, an agreement in writing was entered into between the plaintiffs and the defendant by which it was agreed that the plaintiffs should reserve space for and the defendant should ship cement in bags between 500 to 700 tons, 5% more or less at Captain's option in the vessels "AYIOS GEORGHIOS", 25 "AYIOS DEMETRIOS", "PAULINE" or substituted vessels, for carriage from Larnaca-Limassol to Alexandria-Port Said. Shipments would commence on the 5th August, 1977,and the freight was agreed at U.S. $ 8.50 FIOST prepaid payable in dollars in free transferable currency. It was further agreed that 30 in case both parties concerned were satisfied from the execution of the first shipment, consecutive voyagss would follow up to the completion of the carriage of 8.850 tons of cement until the end of 1977 at a monthly rate of carriage of about 2,000 tons. This agreement headed as "Booking Note" has been 35 produced as exhibit 1. Its term 1 reads as follows :"It is hereby agreed between Loyalty Shipping Co. Ltd., hereinafter called the carrier, and Mr. Mario Theodotou, 328 1 C.L.R. Loyalty Shipping v. Theodotou A. Loizou J. of Marsif Co. Ltd., hereinafter called the merchant, that the carrier shall reserve space for and the merchant shall ship the following goods: Term 5 thereof reads as follows: 5 "The merchant's representatives at loading port are Mr. Mario Theodotou, of Marsif Co. Ltd., 19 Demosthenis Severis Avenue, P.O.Box 1651, Phone 49449, Nicosia, Cyprus". and it issigned by M. Theodotou as "merchant" and by the said 10 Loyalty Shipping Co. Ltd. as "carrier". In compliance with the said agreement, the plaintiffs made available their ship "AYIOS DEMETRIOS" which was loaded with 500tons of cement and carried same"to Alexandria,"Egypt." In order to continue the carriage of cement as agreed, the 15 plaintiffs sent on or about the 25th August, 1977, "AYIOS GEORGHIOS" which has bigger cargo capacity than "AYIOS DEMETRIOS". She remained, however, for 25days in Cyprus without being loaded as the defendant failed to make available any cement cargo for loading. The plaintiffs for this breach 20 of the aforesaid agreement claim C£19,223.195 mils damages as per the particulars in the statement of claim. It is the case for the defendant that he never entered into any agreement as alleged by the plaintiff Company, his contention being that the alleged agreement was knowingly to the plaintiff 25 Company made between them and Marsif Co. Ltd., a foreign Arab Company and it was signed by him in his capacity of an authorized agent and/or representative of the said Company only and in no other capacity. It was alleged that due to the delay of the plaintiffs in sending the ship, the cement allotted 30 to Marsif Co. Ltd. by the suppliers was sold to other merchants with the result that they lost their turn and had to wait for new allotment, particularly after the accidental breakage of the suppliers' factory. It was also alleged that after the delay and after communicating with Mr. Louis Constantinides (D.W.2), 35 the Managing Director of Romulus Shipping Co., who were acting as the agents of the plaintiff Company, a captain by the name of Nikiforos was sent by the ship's agent, on behalf of the plaintiffs, in order to discuss the question of the delay in the 329 Λ. Loizou J. Loyalty Shipping v. Theodotou

(1980)shipment;there were negotiations for a settlementand eventually it was agreed that the plaintiffs would be free to do whatever theywanted with theirshipwhilsttheshippers should pay 1,000.U.S. dollars in full and final settlement. Thereupon a document (exhibit2) was prepared and signed by Cpt. Nikiforos which (uncorrected) reads as follows:- 5 "I the undersigner CaptainNikiforos from Loyalty shipping Greece, and Partner of M/V «AGIOS GEORGIOS' declare that I have received from Messrs. Marsif the amount of OneThousandU.S. Dollars for demourage ofM/V*AGIOS 10 GEORGHIOS' for her first trip from Larnaca to Alexandria. As vessel was not been loaded with Ciement as was been agreed with Messrs. Marsif Nicosia, Marsif And Romulus Shipping services Are not Engaged with First Voyage of M/V AGIOS GEORGHIOS, Vessel 15 can load any cargo Available from Cyprus ports. The above amount was been cashed by Mr. L. CONSTA­ NTINIDES AGAINS disbersement Of account Agios Georghios and Agios Demetrios. CAPTAIN NIKIFOROS ./." 20 The description in term 1 of the Booking-Note, exhibit 1, of "the Merchant", i.e. the one of the two contracting parties therein, as "Mr. Marios Theodotou of Marsif Co., Ltd.," and in term 5 of "the Merchant's representatives at loading port" as being "Mr. Mario Theodotou of Marsif Co., Ltd.," was 25 obviously an ambiguity capable of explanation and evidence was adduced in order to remove the doubt raised thereby and to show that the parties knew that the apparent "merchant" was acting as agent for a disclosed principal whose identity on thedocumentitself could befurther clarified by the introduction 30 of the evidence. The evidence adduced was that of Theodoros Kouloukas for the plaintiff company, who is one of its directors and who negotiated and signed the Booking-Note, exhibit 1, on the one hand and the defendant himself and Louis Constantinides, 35 managing director of Romulus shipping company, who took part in the negotiations of the agreement in question and for thecarriage of cement between theplaintiff company and Marsif 330 1 C.L.R. Loyalty Shipping v. Theodotou A. Loizou J. Company Ltd., as he put it, on whose behalf its managing director Dr. Nassif, an Egyptian was negotiating, with himself acting as an interpreter from arabic and English. In fact Romulus Shipping Services Ltd., is described in the additional 5 clauses to the Booking-Note, exhibit 1, as "owners agents", and further down as the agents of the vessel. According to this witness captain Kouloukas and himself came to Nicosia at the invitation of Dr. Nassif in order to conclude the agreement for the carriage of the cement in 10 question. After some progress was achieved with the negotiations between the plaintiff company represented by captain Kouloukas and Marsif Company Ltd., represented by Dr. Nassif, Dr. Nassif excused himself as he had to leave and said that the defendant would sign the contract on his behalf, its 15 termshaving"alreadybeenagreed with Dr. Nassif before he left. From the evidence adduced it is clear that the negotiations were made and the transaction was concluded with Marsif Company Ltd., the Egyptian firm, represented at the negotiations by Dr. Nassif, its general director, who instructed and 20 authorised the defendant to sign on behalf of the said company the Booking-Note in question. This was to the knowledge of captain Kouloukas,P.W.I, whowasactingat thetimeonbehalf of the plaintiff company. This is born out from the evidence ofthedefendant himselfandLouisConstantinides,theManaging 25 Director of Romulus Shipping Services Ltd., whichwasclaimed to be acting as agents of the plaintiff company, but to say the least and on the admission of captain Kouloukas, as the ship's agent. The fact that the defendant signed the said agreement as agent for a disclosed principal isfurther born out by theway 30 hewas described in terms I and 5of the said Booking-Note. On this factual aspect of the case the only conclusion in law to be reached is that the defendant is not personally bound by the aforesaid agreement as hehas not contracted personally but acted onbehalf of theprincipal and that appears clearly to have 35 been the intention of the parties. That can be deduced from the terms and nature of the Booking-Note in question and its surrounding circumstances. The defendant could not be held personally liable on this contract as he had not contracted personally and therefore thepresent action against him must be 40 dismissed. 331 A. Loizou J. Loyalty Shipping v. Theodotou

(1980)Having reached this conclusion I need not examine in detail the alternative defence that all differences were settled by the agreement reached with captain Nikiforos and embodied in the document, exhibit 2,earlier referred to in thisjudgment. Suffice it to say that captain Nikiforos acted on behalf of the plaintiff 5 company, being its"Port Captain";he came to Cyprus, brought certain spare parts, supervised the first shipment of cement and received_ payment of the freight of that shipment. Though captain Kouloukas denied any authority to captain Nikiforos to settle any dispute on behalf of the plaintiff company, yet 10 the question of ostensible authority arises in this case. But as I said I need not examine that aspect in view of the conclusion already reached on the question of the personal liability of the defendant. For all the above reasons this case is dismissed but in the 15 circumstances I make no order as to costs. Action dismissed. No order as to costs. 332