clr/1980/1980_1_93.pdf

(1)of the Merchant Shipping {Masters and Seamen) Law, 1963 {Law 46/63). Admiralty—Shipping—Seaman—Foreign seaman—Wrongful dismissal A "distressed seaman"—Awarded repatriation expenses to his country—Section 42 of the English Merchant Shipping Act, 1906 applicable in Cyprus by virtue of the Merchant Shipping {Safety of Seamen) Law, Cap. 292 read in conjunction with the Merchant Shipping {Masters and Seamen) Law, 1963 {Law 46/63). By means of an oral agreement, concluded in January 1979, the plaintiff was engaged to serve as chief engineer for an indefinite period on the defendant ship at the remuneration of U.S. dollars 600 per month. On September 9, 1979 an authorised agent of the owners of the defendant ship came to Cyprus and asked plaintiff to leave the work as the defendants had employed somebody else to replace him. He was locked out of his cabin and asked to leave the ship. As hewas deprived of his accommodation he had to stay at a hotel where he was paying a sum of £7.—per day for his accommodation and subsistence. Hence this action for wages and other emoluments, subsistence, repatriation expenses and damages for wrongful dismissal. The only evidence in support of the action came from the plaintiff; it stood uncontradicted and was accepted as truthful and reliable by the Court. 93 Megahed v. Ship "Wessam"

(1980)Held,

(1)that the plaintiff was wrongfully dismissed from his employment, turned out of the ship and deprived of his accommodation and maintenance which hewasenjoying whilst serving on the ship; and that, consequently, he wasjustified in bringing the present action.

(2)That plaintiff had beenintheemployment ofthe defendants for a period of nine months and under his contract of service hiswageswerepaid onamonthlybasis;that takingintoconsideration the fact that at least till the hearing of the action, which was about two months after thefilingof the action, the plaintiff 10 was out of work and not employed elsewhere, and the fact that his employment was on a monthly basis, he is entitled to his claim for one month's salary as damages for the termination of his contract in the absence of any proper notice of dismissal.

(3)That once plaintiff was deprived of his accommodation and J J provisions which he was enjoying on the ship, and forced to get out of it, without the owners of the defendant ship taking any adequate steps for his maintenance and subsistence pending his repatriation, he is entitled to his claim for accommodation and maintenance for a period of one month in respect of which he 20 has been awarded damagesfor wrongful dismissal in the absence ofproper notice oftermination (seesection 18

(1)ofthe Merchant Shipping (Masters and Seamen) Law, 1963 (Law 46/63)). Held,further, that the fact that plaintiff stayed in Cyprus till the hearing of the action, is not a good reason to allow him 25 accommodation and maintenance for a period longer than one month, because his evidence could have been taken before the trial (see r. 125 of the Cyprus Admiralty Jurisdiction Order, 1893).

(4)That the expenses of relief of "distressed seamen", either 30 for their maintenance, necessaryclothing, conveyance to aproper return port, or in the case of death for their burial or otherwise are recoverable (see section 42of the English Merchant Shipping Act, 1906, which is applicable in Cyprus by virtue of the Merchant Shipping (Safety of Seamen) Law, Cap. 292 read in « conjunction with Law 46/63); that the question whether a seaman is "in distress" is a question of fact in each particular case; that plaintiff was a seaman who was dismissed from his employment and was forced to disembark the ship in Cyprus; 94 5 1 C.L.R 5 10 15 Megahed τ. Ship "Wessam" that he was of foreign nationality and he was bound to return to a port in his country, such port falling within the meaning of a "properreturnport" underthesaid section42 of the English Merchant Shipping Act, 1906; and that in the absence of any agreement to the contrary he is entitled to his repatriation expenses to his country. Judgment accordingly, Cases referred to: PalaceShippingCompany Limited v. Caine and Others [1907] A.C. 386; Board of Trade v. TheSailing Ship Glenpark Ltd. [1904] 1 K.B! 682. Admiralty action. Admiralty action for wages and other emoluments, subsistence, repatriation expenses and damages for alleged wrongful dismissal. C. Erotocritou, for the plaintiff. Defendant absent. Cur. adv. vult. 20 SAVVIDES J. read the following judgment. This is an action for wages and other emoluments, subsistence, repatriation expenses and damages for alleged wrongful dismissal, brought by the plaintiff against the defendant ship which at thematerial time was lying in the port of Limassol undergoing repairs. 25 According tothepetitiontheplaintiff was engaged in January, 1979, by an oral agreement, to serve as chief engineer for an indefinite period on the defendant ship at the remuneration of U.S. dollars 600 per month. Thedefendant ship isflying theLebaneseflagand on 12.9.1979 30 she was put under arrest by order of the Court under a writ issued in these proceedings and was subsequently bailed out but was and still is undergoing repairs in Limassol port. 35 It is theallegation of plaintiff thathewas wrongfully dismissed by the owners of the ship and as a result he brought the present action, claiming wages due to him as from 2.8.1979 to 9.9.1979, subsistence money and/or food allowance as from 9.9.1979 till 16.10.1979 at £7.—per day, repatriation expenses and damages for wrongful dismissal. 95 amidesJ. Megabedv.Ship"Wessam"

(1980)The owners of the defendant ship by their answer deny that they wrongfully dismissed the plaintiff or that they committed abreach oftheir contract. It istheirallegationthat the plaintiff failed to discharge efficiently his duties and as a result of such failure and negligence on hispart, theenginessustained damage 5 in respect of which they counterclaim against the plaintiff a sum of £1,000.—. They further allegethat though the contract of the plaintiff entitled them to dismiss him from employment they did not exercise this right and it was plaintiff himself who left theshipand brought thepresentactionandat thesametime 10 issued a warrant of arrest against the ship. It is further contended by the defence that the employment of the plaintiff was subject to termination by one week's notice. The only evidence before me at the hearing was that of the plaintiff himself. Though the plaintiff was cross-examined on 15 matterstouchingfailure onhispart toperform hisduties,allegations which he denied, the defendants did not adduce any evidenceto contradict him and to support their allegations. . According to plaintiff's evidence whilst in the employment of the defendants, he was wrongfully dismissed from employment 20 without anynoticeonthe9thSeptember, 1979underthefollowing circumstances: An authorized agent of the owners came to Cyprus and informed him that his services werenot required any longer and asked him to leave thework as the defendants had employed somebody else to replace him. He was locked 25 out ofhiscabinand asked toleavetheship. Asa result, he left theshipand instituted thepresentproceedings. Dueto thefact that plaintiff wasdeprived ofhisaccommodation, hehad to stay at a hotel where he was paying for his accommodation and subsistence, a sum of £7.—per day as from the 9th September 30 1979.till the 9th November, 1979 when this case was fixed for hearing. The other items claimed by the plaintiff were wages due to him till the day he was dismissed, i.e. 38days,which converted into Cyprus Pounds at the material time,amounted to £268.—, 35 a sum of £29.200 mils for repatriation expenses from Cyprus to Egypt and £211.—representing one months's wages by way of damages for wrongful dismissal. After the evidence of the plaintiff wasconcluded, the hearing 96 1 C.L.R. Megahed v. Ship "Wessam" Savvides J. was adjourned for another day, when counsel appearing for the defendant ship, applied for leave to withdraw from the proceedings, in view of the fact that, according to his statement, the owners of the defendant ship were repeatedly notified to attend 5 the hearing and supply him with further instructions in the case, but they failed to respond. Leave was granted to him to withdraw and the case proceeded in the absence of the defendants and plaintiff concluded his case. On the evidence before me, coming from the plaintiff which 10 standsuncontradicted andwhich Iaccept astruthful and reliable, I am satisfied that the plaintiff was wrongfully dismissed from his employment, turned out of the ship and deprived of his accommodation and maintenance which he was enjoying whilst serving on the ship and, in consequence, he was justified in 15 bringing the present action. •Having found so, I come now to consider the amounts which the plaintiff is entitled to recover under the various headings of his claim. A. Wages'. The plaintiff has alleged and the defendants have not denied 20 that wages for a period of 38 days as from 2.8.79 till 9.9.1979 were due to him, amounting to £268 which is the equivalent in Cyprus Pounds of his wages at U.S. dollars 600 per month, at the rate prevailing at the time when the petition was filed and which has not been contested by the defendants. I find that 25 plaintiff is entitled to recover such amount. B. Other claims: The claims for subsistence, accommodation, repatriation and damages for wrongful dismissal which arise after the 9th September, 1979 when the dismissal took place, may all be 30 included under the heading of general damages. In the defence it is alleged that only one week's wages were payable by way of damages in case of wrongful dismissal. Such allegation has not been substantiated by the defendants. Plaintiff, on the other hand, claims damages in this respect, 35 amounting to one month's salary. Plaintiff had been in the employment of the defendants for a period of nine months and under his contract of service, his wages were paid on a monthly basis. Taking into consideration the fact that at least till the hearing of the action, which was about two months after the 97 Savvides J. Megahed ?. Ship "Wessam'

(1980)filing of the action, the plaintiff was out of work and not employed elsewhere, and the fact that his employment was on a monthly basis, I find that he is entitled to his claim for one month's salary as damages for the termination of his contract in the absence of any proper notice of dismissal. I find such 5 amount asbeingC£211.—which istheequivalent of U.S. dollars 600asper para. 4(d) of thepetition. In Palace Shipping Company Limited v. Caineand Others [1907] A.C. 386, the House of Lords found that the plaintiffs who were wrongfully dismissed, were entitled to "wages until 10 thefinalsettlement and to thecost of maintenance for the same period under the head of damages for wrongful discharge". In delivering thejudgment of the House of Lords, Lord Loreburn, L.C. at page 392, had this to say: " The delay in payment of their wages was not due to the 15 act or default of the seamen, or to any reasonable dispute as to liability, for the liability to past wages was never disputed. It wasdue solelyto the wrongful act or default oftheownerormaster. And,therefore, theseamen'swages continued to run and bepayable until they received them, 20 which was not till the judgment of the Court of Appeal. 'Final settlement' in s. 134means, in my opinion, payment or other such settlement as that section prescribes". Thisfinding,however,wasbased onsection 134oftheEnglish Merchant Shipping Act, 1894which is one of the sections the 25 operation of which has no application in Cyprus by virtue of section 111 of the Merchant Shipping (Masters and Seamen) Law, 1963 (Law No. 46 of 1963). Further down, on the same page, the Court is dealing with the question of maintenance and the following appears in the 30 judgment of Lord Loreburn: " TheCourtofAppealawardedalsoasumformaintenance, 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 35 the men were deprived of their provisions, and that was an item of their loss." And at page 391,the following is reported in the samejudgment: "And though statutory provision has been made for the 40 98 1 C.L.R. Megahedτ. Ship"Wessam" SavvidesJ. protection of seamen, the ancient power of the Admiralty Court to shelter them from wrong is not superseded". 5 10 15 20 25 . On the question of maintenance in cases of seamen whose services are terminated, provision is made under section 18

(1)of Law 46/63, to the effect that with the exception of cases in which section 13 of the same Law applies, the master cannot terminate the services of a seaman of a ship flying aCyprus flag or a foreign flag within the Republic, without the approval of the PortOfficer or a Consular Officer who represents theStateto which such ship belongs, without taking adequate steps for the maintenance and subsistence of the seamen satisfying such Port Officer or in the case of foreign ship satisfying such Consular Officer of the State under whose flag the ship is registered. A criminal sanction is imposed upon any master who dismisses a seaman in contravention of such section. The defendants have not complied with such provision. Section 13 has no application inthepresent casebecause such section only provides as to terminationof a contract either as a result of the lapse of the period mentioned in the agreement, the loss of the ship, wreck or sale by public action (sub-section

(1).) or cases where the master can terminatetheagreement as a result of the seaman refusing to embark or unjustifiably absenting himself from the ship or as a result of a serious offence committedby the seaman which exposes the ship and the crew in danger or in cases of serious breach of discipline or the unsuitability of the ship to sail (sub-section

(2)) or cases where the master is guilty of serious breach of his duties towards the seaman (sub-section

(3))· In the circumstances of the presentcase,Ifindthat onceplain30 tiff was deprived of his accommodation and provisions which he was enjoying on the ship, and forced to get out of it, without the owners of the defendant ship taking any adequate steps for his maintenance and subsistence pending his repatriation, he is entitled to his claim for accommodationand maintenance for 35 a period,of one month in respect of which he has been awarded damages for wrongful dismissal in the absence of proper notice of termination. The fact that plaintiff stayed in Cyprus till the hearing of the action, is not a good reason to allow him accommodation and maintenancefor a period longer than one 40 month, because his evidence could have been taken before the trial under rule 125 of the Rules of the Supreme Court in its -99 Savvides J. Megabed v. Ship "Wessam"

(1980)Admiralty Jurisdiction, and thenbefree toleaveCyprusandget a job in his country, somethingwhich according to hisevidence wasnot difficult for him todo. Intheresult, Ifindthat amount to which he is entitled under this heading at C£210.—(thirty days by £7.—per day). As to repatriation expenses, as there is no express provision in Law 46/63, assistance in this respect may be sought in the English Merchant Shipping Act, 1906 which, by virtue of our Merchant Shipping (Safety of Seamen) Law, Cap. 292, read in conjunction withLaw46/63(byvirtueofsection 1 ofLaw46/63), 10 are applicable in Cyprus, subject to the dispensation of the operation of certain sections,by section 111of Law46/63. Under section 42 of the English Merchant Shipping Act, 1906, there is provision for recovery of expenses of relief of "distressed seamen" (either for his maintenance, necessary 15 clothing, conveyance to a proper return port, or in the caseof death, for his burial or otherwise (section42

(1)). The question as to whether a seaman is "in distress", is a question offact in each particular case. In TheBoardofTrade v. The Sailing ShipGlenpark Ltd.,[1904] 1 K.B.682,it washeld 20 that even "receipt ofwagesbyseaman sufficient tomaintainhim and pay his passage to a return port, doesnot necessarily show that he wasnot a 'distressed seaman'". I find that by analogy such provision is applicable in the present case. Plaintiff was a seaman who was dismissed from 25 hisemploymentandwasforced todisembarktheshipinCyprus. He was of foreign nationality and he wasbound to return to a port in his country, such port falling within the meaning of a "proper return port". In theabsence of any agreement to the contrary at the timeofhisdischarge, Ifindthat heisentitled to 30 his repatriation expenses to his country. In the result, under this heading B. I find that plantiff is entitled to— (a) one month's wages for termination of employment amounting to £211.—. (b) Subsistence and maintenance for one month, £210.—. 35 (c) Repatriation expenses, £29.200 mils. Thus, the total to which plaintiff is entitled under both 100 5 1 CX.R. Megabed v. Ship"Wessam" Savvides J. headings A. and B.of myjudgment amounts to £718.200mils, and I givejudgment for plaintiff against the defendant for this amount with costs. Costs to be assessed by the Registrar. 5 The counterclaim is dismissed with no order for costs. Judgment and orderfor costs as above. 101