1 CLR. 1981 October 16 [SAVVIDES, J.] "ERMIS" K. ANAGNOSTOU E.P.E. AND OTHERS, Plaintiffs, v.
- THE SHIP "HOLCOR I",
- RIMA LINE SHIPPING CO. SARL, Defendants. {Admiralty Actions Nos. 225/79, 261/79, 262/79 and 263/79). 5 10 15 20 25 Admiralty—Practice-—Jurisdiction—Action in rem and in personam—• Claim against ship for repairs, for goods sold and delivered and for provisions supplied—Application to set aside writ of summons and service thereof for want of jurisdiction—Respective contentions ofparties set out in affidavits—No oral evidence and no cross-examination of the affiants—Not proper to grant application at this stage without hearing on oath all parties concerned and making findings as to material facts. By means of actions in rem and in personam the plaintiffs in the above actions claimed various sums for goods sold and delivered and provisions supplied to defendant 1 ship and for repairs carried out on the said ship. Counsel for defendant 1 ship applied for an order setting aside the writ of summons and service thereof on the said ship on the ground that the action could not proceed in rem against defendant 1as at the time of the action the shipwas owned by persons different than thosewho owned the shipwhen the cause of action arose. The plaintiffs opposed the application contending that defendants 2 were the persons who, at the material time when the cause of action arose, were the beneficial owners of the ship in respect of all shares thereof. All the facts relied in support and in opposition of the'applications were set out in affidavits sworn by both sides and none of the affiants attended the Court to give evidence and neither party requested for the attendance of any of the affiants for cross-examination. 461 Aaagnostou v. Ship "Holcor I"
(1981)Held,that the material issue in these applications is whether at the time the action was brought the ship was beneficially owned as respects all the shares therein by the same person who would be liable when the cause of action arose; that in an affidavit sworn by one of the affiants for the respondents- 5 plaintiffs, it is alleged that though the defendant ship was not owned by the same persons, nevertheless, thepresent defendants 2 were the real owners or the persons who were in possession or in control of the defendant ship when the cause of action arose, and that the ship was beneficially owned as respects all 10 thesharesthereinbythesamepersons;thathavinggonethrough all the said affidavits this Court has reached the conclusion that without hearing further evidence on oath on the issues before it, it cannot reach a conclusion as to what allegations are true or not; and that, therefore, it is not proper, at this 15 stage, to accede to the applicant's request to set aside the writ of summons at this preliminary stage of the hearing, without hearing on oath all parties concerned and making itsfindings as to the material facts (Katarina Shipping v. Ship"Poly"
(1978)1 C.L.R. 271, at p. 284 adopted). 20 Order accordingly. Cases referred to: Katarina Shipping v. Ship"Poly"
(1978)I C.L.R. 271 at p.
- Application. Application by defendant 1 for setting aside the writ of sum- 25 mons and service thereof in an Admiralty Action whereby plaintiffs claimed various sums for goods sold and delivered and provisions supplied to defendant 1 ship and for repairs carried out on the defendant ship. Fr. Saveriades, for the applicants-defendants. M. Vassiliou, for the respondents-plaintiffs. Cur. adv. vidt. SAVVIDES J. read the following judgment. Counsel for the defendant 1ship in the above actions prays by the present applications, one in each action, to have the writs of summons and 35 service thereof on the defendant ship set aside as being irregular and wrong in law. 462 30 1 C.L.R. Ansgnostou v. Ship "Holcor I" Savvides J. Alltheaboveactions areactions both in rem against theship (defendant 1)and inpersonam against itsowners(defendants 2). Service was effected on the defendant ship and a warrant of arrest was issued against her on theapplication of the plaintiffs. 5 The ship was subsequently released after a bank guarantee was given covering the claims and costs in all actions. Service on defendants 2 has not, so far, been effected. Plaintiff's claim in Action No. 225/79 is for Greek Drachmas 45,721, for goods sold and delivered and provisions supplied to defen10 dant
- Theclaim inActionNo.261/79isfor Greek Drachmas 118,656 for goods sold and delivered and provisions supplied to defendant
- The claim in Action No. 262/79 is for Greek Drachmas 178,170for repairs carried out on thedefendant ship and theclaim inAction No.263/79is Greek Drachmas 280,000 15 for repairs and/or materials provided to the defendant
- It is alleged in all actions that the goods were supplied and the repairs effected by the plaintiffs at the request of defendants 2 acting through their Managing Director. In view of the fact that common questions of law and fact 20 were in issue in all these applications, the applications were heardtogether attherequestofcounselappearing onbothsides. The facts relied upon in support both of the applications and the oppositions thereto, with the exception of the particulars of the claims, are the same in all actions and they are shortly 25 as follows: As ?et out in an affidavit dated the 12th November, 1979 swornby Chrystalla Houry of Limassol, an advocate associated with counsel appearing for the applicant, it is alleged that plaintiff's claimagainstthedefendants refers toaperiodbetween 30 31.10.1978 and 27.12.1978 when the owners of the said ship wereCharles Debbas and Fares Elzein from Beirut, whereas the said ship was sold in January, 1979 to defendants 2, who are not inany wayliablefor anyalleged claim against the saidship whichhadarisen beforethey becameownersoftheship. There35 fore, oncethe owners ofthedefendant ship at thetimewhen the present action was brought were not the same persons with the owners at the material time when the cause of action arose, no action in rem could be brought against the defendant ship and its present owners. 40 Counsel for respondents-plaintiffs in support of their oppositionrelied onanaffidavit sworn by LenaPatsalou, an advocate's 463 Savvides J. Anagnostou v. Ship "Holcor I"
(1981)clerk at his office. By the said affidavit it is contended that the goods were sold and the repairs effected to the defendant ship previously named "Veewave" at the request of one Melchem Elias Melkon, the Managing Director of defendant 2 Company who, at the material time, when such goods were supplied and repairs effected were the beneficial owners of the said ship and/or had full control of the said ship, irrespective of the fact that it was registered in the name of another firm. 5 In reply to the above affidavit, Counsel for the applicants by an affidavit dated the 8th March 1980, denied respondents* 10 allegations and attached as exhibits an official certificate from the Lebanese Ministry of Public Works and Transport legalized bythe Cyprus Consul inBeirutand an attestation ofthe Harbour Master of the Lebanese Ministry of Public Works to the effect that defendants 2 became registered owners of the defendant 15 ship "HOLCOR I" ex "VEEWAVE" on 29.1.1979; also, a certificate to the effect that on 27.10.1978 the said ship was registered in the name of Charles Debbas and Fares Elzein of Lebanon. The plaintiffs filed also a supplementary affidavit dated 27.
- 20 1980 sworn in Greece by Efstathios Marinos Kremos, a mechanical engineer, who alleges that in August and September, 1978 he came to know one Melchem Elias Melkon who told him that he was the owner, Manager and the person administering the affairs of.the shipping company Rima Line, of 25 Lebanon who had concluded the purchase of the ship "VEEWAVE" which required repairs to pass the necessary examination by the authorities and which, in the meantime, had been renamed to "HOLCOR I" and who employed him to supervise the repairs and look after the affairs of the ship whilst it was 30 undergoing repairs. According to these allegations, by an arrangement made between Malkoun acting on behalf of the defendants and Charles Debbas and Fares Elzein who were his friends enjoying his trust, the one being a banker and the other his partner, the ship was temporarily registered in the name of 35 the latter persons, whereas, at all material times, the ship remained under the exclusive control, possession and beneficial ownership of defendants 2 who were acting through their Manager Melhem Malkoun. All provisions supplied and repairs effected to the said ship were made under the personal 40 supervision of the affiant on the express instructions of the 464 1 C.L.R. Anagnostou v. Ship "Holcor 1" Savvides J. said director of defendants
- Certain invoices concerning the claims were attached to the said affidavit. In some of the said invoices, in addition to the name of the ship, it also appears the name of defendants 2 as the persons jointly responsible 5 with the ship. According to the contentions of the affiant Kremos, when all repairs were effected and the ship was ready to sail, Mr. Malkoum, requested theplaintiffs to allow extension of time of 15 days to enable him to make arrangements for the payment of all accounts, which plaintiffs accepted and thus 10 refrained from taking any legal proceedings before the ship sailed from Piraeus. No objection was raised by either party for the filing of any supplementary affidavits in addition to the ones accompanying the applications and oppositions and in arguing these applica15 tions they refered to the facts set out in all affidavits both the ones filed together with the applications and oppositions as well as those filed subsequently. Furthermore, neither party did ask for the attendance of ajiy of theaffiants for cross-examination as to the contents of their affidavits. 20 Counselfor applicant ship inarguing hiscase before the Court. submitted thp.t the present action cannot proceed in rem against defendant 1, as at the time of the action the ship was owned bypersons different to thosewho owned the shipwhen the cause of action arose. He contended that as from September, 1978 25 till January 1979 the ownership of the ship was in different persons than the present owners who purchased the ship in January, 1979 and who at the time when they bought the ship were not aware of any claims against the ship. He submitted that this was not a case of maritime lien which follows the ship, 30 irrespective of the change of ownership, but it was a case where under the provisions of the Administration of Justice Act, 1956 the plaintiffs had to prove that their claims fall within the provisions of the Act to pursue a claim in rem against the defendant ship, a fact which does not exist in the present case. 35 Counsel for respondents-plaintiffs, conceded that this is not a case of a maritime lien and ifitwas proved that the owners or the persons beneficially entitled to the ship at the material time were different from those at the time when the writ of summons was issued, no action in rem could be brought. In 40 the present case, however, defendants 2 were the persons who, 465 Savvides J. Anagnostou v. Ship "Holcor I" (198J) at the material time when the cause of action arose were the beneficial owners of the ship in respect of all shares thereof, and they had the absolute control and possession of the ship. Such services were rendered, counsel contended, at the request of the Manager of defendants 2 whose capacity as Manager is 5 admitted by the applicant in the affidavits accompanying the application. In conclusion he submitted that once it has been proved by theaffidavits before theCourt that theshipwasbeneficially owned by the same persons both at the time when the goods were supplied and also at thetime of theaction,the case 10 falls within the provisions of the Administration of Justi;eAct, 1956, and an action in rem was properly brought against the defendant ship. Both counsel based their argument on the provisions of the English Administration of Justice Act, 1956, Part I, under the 15 general heading "Admiralty Jurisdiction and Other Provisions astoShips",andinparticular, tosections 1 and 3,ontheassumption that such Act is applicable in Cyprus in admiralty cases. Before going into the merits of the applications before me, I must consider first whether the English Administration of 20 Justice Act, 1956 in so far as it refers to admiralty jurisdiction is applicable to Cyprus. Under the provisions of section 19(a) of the Courts of Justice Law, 1960, (Law 14/60), this Court in addition to the powers and jurisdiction conferred upon it by the Constitution, has exclusive original jurisdiction as a Court 25 of Admiralty, vested with and exercising the same powers and jurisdiction as those vested in or exercised by the High Court of Justice in England in its admiralty jurisdiction on the day immediately preceding' Independence Day. The law to be applied in the exercise of suchjurisdiction, as set out in section 30 29
(2)of Law 14/60, is the law which was applied by the High Court of Justice in England in the exercise of its admiralty jurisdiction on the day preceding Independence Day as may bemodified by any law oftheRepublic. The provisionswhereby the admiraltyjurisdiction of the High Court inEngland and 35 the manner in which it may be invoked, are governed by the Administration of Justice Act, 1956. In the light of the provisions of section 19(a)and 29
(2)of Law 14/60,suchAct isextended to and its provisions apply to Cyprus concerning theadmiralty jurisdiction of this Court. 40 466 1 C.L.R. Anagnostou v. Ship "Holcor I" Savvides J. Having found so, I come now to consider the provisions of sections 1 and 3 of the said Act to decidewhether an action in rem against the defendant ship can be maintained. Section 1of the Administration of Justice Act, 1956 defines the admiralty jurisdiction of the High Court and it provides, interalia,as follows: • "1
(1)The Admiralty jurisdiction of the High Court shall be as follows, that is, to say, jurisdiction to hear and determine any of the following questions or claims— 10 (
- m)any claim in respect of goods or materials supplied to a ship for her operation or maintenance; (
- n)any claim in respect of the construction, repair or equipment of a ship or dock charges or dues; (
- o)15 (
- p)any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship. Section 3 under the heading "Mode of exercise of Admiralty Jurisdiction" provides, inter alia, as follows: 20 25 30 "
(1)Subject to the provisions of the next following section, th« Admiraltyjurisdiction of the High Court, the Liverpool Court of Passage may in all cases be invoked by an action in personam.
(2)The Admiralty jurisdiction of the High Court may in the cases mentioned in paragraphs (a) to (c) and (s) of subsection
(1)of section one of this Act be invoked by an action in rem against the ship or property inquestion.
(3)In any case in which there is a maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court, the Liverpool Court of Passage may be invoked by an action in rem against the ship, aircraft or property. 467 Savvides J. Anagoostoo v. Ship "Holcor F»
(1981)
(4)In the caseofany suchclaim asmentioned in paragraphs (d) to (r) of subsection
(1)of section one of this Act, being a claim arising in connection with a ship, where the person whowould beliable ontheclaim in an action in personam was, when the cause of action arose, the 5 owner or charterer or, or in possession or in control of, the ship,theAdmiraltyjurisdiction ofthe High Court and (where there is such jurisdiction) the Admiralty jurisdiction of the Liverpool Court of Passage (whether the claim gives rise to a maritime lien on the 10 ship or not) be invoked by an action in rem against— (
- a)that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or (
- b)any other ship which, at the time when the action is 15 brought, is beneficially owned as aforesaid". It is common ground in the present cases that the question of a maritime lien does not arise, the existence of which would automatically give a right to an action in rem under section 3
(3)oftheAdministration ofJusticeAct, 1956andthatplaintiffs 20 in bringing these actions against the defendant ship, they rely on the provisions of section 3
(4)of the Act. As I said earlier inthisjudgment allthefacts reliedinsupportand in opposition oftheapplications, are setout inaffidavits swornbybothsides, as well as to certain documents attached to the said affidavits. 25 None of the affiants attended the Court to give evidence and neither party requested for the attendance of any of the affiants for cross-examination. Having gone through all the said affidavits I havereached the conclusion that without hearing further evidence on oath 30 on the issues before me, Icannot reach a conclusion as to what allegations aretrue or not. The material issueintheseapplications is whether at the time the action was brought the ship was beneficially owned as respects all the shares therein by the samepersonwhowouldbeliablewhenthecauseofactionarose. 35 In an affidavit sworn by oneof theaffiants for the respondentsplaintiffs, it is alleged that though the defendant ship was not owned by thesamepersons,nevertheless,thepresent defendants 2 were the real owners or the persons who wereinpossession 468 1 C.L.R. Anagnostou v. Ship "Hoteor I" Savvides J. or in control of the defendant ship when the cause of action arose, and that the ship was beneficially owned as respects alt the shares therein by the same persons. I therefore, find that itisnotproper,atthisstage,toaccedetotheapplicant's request 5 to set aside thewrit ofsummonsat thispreliminary stageof the hearing, without hearing on oath all parties concerned and making myfindingsas to the material facts. In this respect, IwishtoadoptwhatwassaidbyHadjianastassiou, J.inKatarina Shipping v. Ship"Poly"
(1978)1C.L.R. 271,at p. 284: 10 15 "I would reiterate once again, that it is not proper to set aside the writ of summons at this preliminary stage of the hearing, without hearing on oath all parties concerned, andwiththisinmindtheactionshould proceed intheusual way; and at the appropriate time, when the pleadings would be closed and all thefacts during the hearingwould be ascertained, due consideration would bs given to all arguments, or indeed to any further arguments " I, therefore, leave this matter to be decided at the hearing, when all the parties concerned are before the Court and after 20 the pleadings would be closed and all the facts will be ascertained during the hearing. Subject to this the present applications are hereby dismissed. The question of costs is reserved to be decided at the end of the trial of the action. Order accordingly. 469