clr/1982/1982_1_343.pdf

(1982)was that the defendant vessel would load the cargo in question notlater than the 8th May,

1. Thedefendant ship,however, did not arrive at Limassol to collect the cargo on the 8th May, 1982, or at any timethereafter in total breach of the agreement; and on the contrary she sought and obtained clearance from Larnaca port, where she was lying at Roads, theieby denoting her intention to sail from there to a port outside Cyprus. The application for the warrant of arrest was filed on 12.5.1982 but prior to this application there had been filed a caveat* against the issue of any warrant of arrest of the defendant ship. Counsel for theplaintiff, after bringingthecaveattotheknowledge of the Court, applied under rule 70** of the Rules for the issue of the warrant of arrest applied for without notice to the person by whom thecaveat had been entered asthevery fact that thevessel hadalreadyobtainedclearancemeant that she could sail at any time withoul any further formalities with the authorities and that theieexistedthespecialcircumstanceswhich rendered it desirable or necessary for the Court to make the order applied for without notice to the person by whom the caveat has been entered. On May 12, 1982, the Court exercising its powers under the above rule70issued an order*** for the arrest of the defendant ship which was made returnable on the 15th May, 1982, and bymeans of which the plaintiffs were,inter alia, directed to "file a security bond in the sum of C£3,000 to be answerable in damages in the defendant ship and her owners against whom the present older is made ". * The caveat wasentered under the provisions of rule 65of the Cyprus Admiralty Jurisdiction Order, 1893 which reads as follows: "
2. Any person desiringto prevent the arrest of anyproperty may cause a caveat against the issue of any warrant of arrest to be entered by the Registrar in a book to bekept by himfor that purpose and hereinafter called the Caveat Book". ** Rule 70 provides as follows: "
3. No order of the Court or Judge affecting the property or moneys referred to or specified in any caveat, duly entered in accordance with these Rules, shall ordinarily be made on the application of any party or person, except notice of such application shallhave been given to the party or person at whose instance the caveat has beenentered, but the Court or Judge may, upon proof of any special circumstances, which render it desirable or necessary, and upon such terms as may seem fit, make any such order without notice to the person by whom the caveat has been entered". *** The order is quoted at pp. 349-50 post. 344 1 C.L.R. Anastassion v. Ship "Mahee" Upon an apphcation on behalf of the defendant ship for the discharge of the warrant of arrest it was contended: 5 10 (a) That there has been no contract between the plaintiff and the defendant as there was given no authority toaCyprusagentorindeed anyother agenttoconclude any agreement with the plaintiff. (b) That as no notice was served on the caveators so that the owners should be given an opportunity to be heard there was no compliance with rule 70 of the Cyprus Admiralty Jurisdiction Order, 1893, because there had been no proof of any special circumstances. (c) That the wanant of arrest was not lawfully executed because no proper service* was effected on the defendant ship. 15 (d) That theformofthesecuritybond**giveninpursuance to the condition in paiagiaph 3(c) of the order making the warrant of arrest was not valid in that there were omitted theiefrom the words "to be answerable in damages to Ihe defendant ship or her owner". 20 Held,

(1)at this stage the plaintiff had to make out a case satisfying the Court that there was a serious question to be tried at the hearing and that on the facts before it there was a probability that the plaintiff was entitled to relief; that on the totality of the circumstances and contentions placed before this court for the issue of the warrant of arrest this Court feels justified in being satisfied that a casewas made out with triable issuesto bedetermined at thetrial, also,astegards theexistence of the disputed relationship of agency; accordingly contention (a) should fail. 25 30

(2)That the existence of an immediate possibility of Ihe ship * Under rules 16 and 55 of the Cyprus Admiralty Jurisdiction Order, 1893 a warrant of arrest is served by attaching an office copy of the writ to a mast or to some other conspicuous part of the ship; and under rule 58 the Marshal shall immediately after service of the warrant has been effected, forward to the Registrar of the Court a certificate of service. The certificate of the Marshal in this respect isquoted at p.352post and was to the effect that the warrant of arrest was served by the Deputy Marshal and the Bailiff of the Supreme Court byfixingthe warrant on the bridge door and Master's cabin door of the ship on the 12th May, 1982. : * The security bond is quoted at p. 353 post. 345 Anastassiou v.Ship"Mahee"

(1982)sailingandtheplaintiff suffering injusticetherefrom inrecovering his claim might by itself in a proper case amount to the special circumstances required by rule 70; accordingly contention (b) should fail.

(3)That in view of the Marshal's certificate, whichwas issued underrules58and 59oftheCyprusAdmiraltyJurisdiction Order, 1893, no \alid complaint can be made against the mode of seivice of the warrant of arrest in question; accordingly contention (c) should fail. 5

(4)That the omission of a reference to the words "to be 10 answerable in damages to the defendant ship or her owner" in the security bond* does not vitiate the wairant of arrest asit goeswithout sayingthat insucha secuiity bond therelevant terms of the warrant for the arrest in respect of which it was gi\en should beconsidered as incorporated therein by the inclu- 15 sion of the term "for the issue"of such order, and that a person who has given sameis answerable in damages to the defendant ship and her owners against whom such order wasmade, otherwise it would be meaningless as the Registrar has no claim as such against a person on whose behalf the security bond is 20 filed; accordingly contention (d) should, also, fail. Application dismissed. Observations with regard totheneedfor a revision ofour Rules of Courtboth with regardtocivilmattersand to theAdmiralty Jurisdiction of this Court. 25 Cases referred to: Rolinmpex Centrala Handlu Zagranicnego, Willy Bruns and Kamstra (Hull) Ltd., \. Prirs Bernhard(owners), [1964] P. 117. Application. 30 Application by the defendants for the discharge of a warrant of arrest issued against the defendant ship, on the application of the plaintiffs, in an action for damages for loss suffered by With the agreement of the parties the security was increased from £3,000 lo £8,000 and a new clearer form of security bond was adopted which may be followed in the future. 346 1 C.L.R. Anastasslou v. Ship "Mabee" reason of defendants' breach of an agreement for the carriage of cargo. M. Montanios, for the applicants-defendants. E. Psyllaki (Mrs.), for the respondent-plaintiff. 5 Cur.adv.vult. A. Loizou J. read the following judgment. Together with the filing bythe plaintiff of thisadmiralty action in rem against the defendant ship for damages "for loss suffered by him by reasonofthedefendants' breachofanagreementfor thecarriage 10 ofacargoofabout220tonsofcitrusfrom LimassoltoHodeidah dated the 29th April 1982", an application for leave to issue a warrant of arrest for the airest of the defendant ship, was made. The facts relied upon were set out in the accompanying 15 affidavit supplemented by a number of telexes exchanged between the parties. As it appears theiefiom the said agieement was concluded by exchange of telexes. It was one of its terms that the defendant vessel would load the cargo in question not latei than the 20 8th May 1982but she did not arrive at Limassol to collect the plaintiff's cargo on the8th May 1982, or at any time thereafter intotalbreachoftheagreement. Onthecontrary the defendant ship sought and obtained cleatance from Larnaca port where she was lying at Roads, thereby denoting her intention to 25 sail from there to a poit outside Cyprus. The plaintiff sent telexestotheowneis,careofher master, but noreply wasgiven toanyof them,except asalleged inthe said affidavit for an oral reply of the vessel's agents that the defendant ship would not load the plaintiff's cargo as the owners did not expect to make 30 a profit from the voyage to Hodeidah. The damge claimed for the alleged breach of this agreement was estimated in the region of U.S. $92,000.—and the aid and process of the Court was required to enfoice payment of any amount lost and or to be lost by the plaintiff as above by 35 the anest of the defendant ship. WhencounselarrivedatNicosiatofilethepresentproceedings she discovered that a caveat had been entered against the issue 347 Λ. Loizou J. Anastassioa τ. Ship "Mahee"

(1982)of any warrant of arrest under rule 65 of the Cyprus Admiralty Jurisdiction 1893 along the lines set out in paragraph (F) of Schedule I of the said order and which reads as follows: "In the Supreme Court of Cyprus, Admiralty Jurisdiction. (Title of action (if any). ) ϊ, A.B., of _.- hereby apply that a caveat may be enteied against the issue of a wairant for the arrest of (state thenatuie cf theproperty against the arrest of which the caveat is to be entered) without notice to me". It may be mentioned here,as pointed out in British Shipping 10 Laws, Admiralty Piactice 1964 paragraph 239 " no caveat against arrest is enteied in an action. Such a caveat may be entered at anytime. Itmaybe a shield against theconsequence of future collisions, salvage or other occurrences, before they happen, cr it may be entered after it is known that a writ is 15 about to be oi has been issued. It is because a caveat is not related to any particular actionthat the heading of the praecipe for caveat against arrest in Form No. 5 in Appendix Q differs from the heading in most other forms". Hence in the caveat in question there is no reference to the title of an action as 20 none had until then beenfiled. Counselfor theapplicantbrought thiscaveat tomy knowledge and applied under rule 70 of the Cyprus Admiralty Jurisdiction Order for theissue of the warrant of arrest applied for without notice to theperson bywhom thecaveat hadbeen entered asthe 25 veryfact thatthevesselhadclearancesincetheprevious Monday, meant that she could sail at any time without any further for­ malities with the authorities and that there existed the special circumstances which rendered it desirable or necessary for me to make such order without notice to the person by whom the 30 caveat had been entered. She offered to verify her statements to theextent thattheywere notcontainedintheaffidavit already filedby a new affidavit to befiledthe soonest possible as there was no time in delaying any longer. She further informed the Court that she had met Mr. M. Montanios, of the firm of 35 Montanios and Montanios, who had entered the said caveat and informed himof her applicationfor theissueof thewarrant of arrest. Inall fairness to Mr. Montaniosshe mentionedthat he told her that he did not consider oral notice as a proper notice I may mention heie that this information given by 40 348 5 1 C.L.R. Anastassiou v. Ship "Mahee" A. Loizou J. counsel to Mr. M. Montanios at an accidental encounter in the Court's corridors did not weigh with me as an appropriate notice which should be given to cases where such caveats are entered and as I stated in the brief reasons I gave in issuing 5 the warrant of arrest I relied on the provisions of rule 70 which dispenses with a notice upon proof of special circumstances which render it desirable or necessary to make such order. Rule 70 reads as follows: 10 15 "70. No order of the Court or Judge affecting the property or moneys referred toor specified inanycaveat, duly entered in accordance with these Rules, shall ordinarily be made on the application of any party or person, except notice of such application shall ha\e been given to the party or person at whose instance the caveat has been entered, but the Court or Judge may, upon proof of any special circumstances, which render it desirable or necessary, and upon such terms as may seem fit, make any such order without notice to the person by whom the caveat has been entered". My order of the 12th May 1982 reads as follows: 20 25 "Court: In view of the circumstances of this case and its urgency and in particular of the fact that the interests of the plaintiff are likely to be defeated if this ship is net forthwith arrested, I have decided to exercise my powers under rule 70 of the Cyprus Admiralty Jurisdiction Order 1893, and grant the applicantion. Furthermore the applicants are at liberty to file an additional affidavit at the soonest possible opportunity and verify on oath the statement madebycounselhereinabove,onthefollowing terms:1. Notice of such arrest shall be served on the said ship. 30 35 2. The Marshal shall release the ship upon directions of the Registrar of this Court on the filing of a security bond byoronbehalf oftheshipinthesum ofC£41,000.— (forty-one thousand Cyprus pounds) for the satisfaction of anyorder orjudgment for thepayment of money made against the ship or her owners in this action. 3. The applicants-plaintiffs shall comply with the following requirements. (a) Lodge in Court the sum of C£200.—deposit for any 349 A. Loizou J. Anastassiou v. Ship "Mahee"

(1982)expenses which may be incurred by the Marshal in connection with the custody of the ship while under arrest, subject to this sum being increased later on. (

1. b)TolodgeinCourtanyfurther amountthattheRegistrar of this Court will ask the plaintiffs to do with regard 5 to the expenses of the arrest and failing to comply within three days from such demand, the order of airest to be discharged. (
2. c)File a security bond in the sum of C£3,000.—to be answerable in damages in the defendant ship and her 10 owners against whom the present order is made. Failing to do so, this warrant of arrest will be automatically discharged. This order is returnable on the 15th May 1982, at 9:30 a.m.andcopyoftheordershouldbeservedonthecaveator's 15 address for service. I have fixed this warrant of arrest at such a short period so that this will amount to a notice to the caveators and for any person interested to appear and move the Court that this Order should be discharged and also for the purpose of the caveators putting up bail 20 in furtherance of their caveat". Thefirstground on whichtheapplicants relyfor thedischarge of this warrant of arrest is that there has been no contiact between the plaintiff and the defendant as there was given no authoiity to a Cyprus agent or indeed any other agent to con- 25 elude any agreement with the plaintiff. This, it was uiged is stated in the affidavit of Mr.Abdel Hadi,filedon.behalf of the applicants defendants and there does not appear to exist a telationship of agency between the defendants and Moustakas Shipping Agency Limited from the telexes attached to the affi- 30 davit filed on behalf of the plaintiff in support of the issue of the said agreement. It is clearly alleged in the said affidavit that Moustakas Shipping Agency Limited, are theagents of thedefendant vessel and or her owners. No doubt at this stage, the plaintiff had to make out a case satisfying me that there was a serious question to be tried at thehearingand that on thefacts before metherewasa probabi350 35 1 C.L.R. Anastassiou v.Ship"Mahee" A.Lolxoa J. lity that the plaintiff was entitled to relief on the totality of circumstances and contentions placed before me for the issue of the warrant of arrest I feel justified in being satisfied that a case was made out with triable issues to be determined at the 5 trial, also as regards the existence of the disputed relationship of agency. 10 15 20 25 30 35 40 The second point raisedon behalf of the applicants-defendants is related to the existence of the caveat against arrest. It was argued that a notice had to be served on the caveators so that the owners should be given an opportunity to be heard. It was urged that there was no compliance with rule 70 dispensing with the giving of a notice as there had been no proof of any special circumstances. I do not subscribe to this contention. The existence of a clearance obtained two days earlier and the fact that she was lying at Roads meant that the defendant ship was free to sail at any moment without any further furmalities and the amounts involved were too big to be expected to be satisfied otherwise than through her arrest. It is true that our Rules in general, including the provisions regarding the issue of caveats are out of date with regard to present day realities and even not the same as those prevailing in England under the old English Rules, Order 29 rules 11 and 12 (See also the praecipe for caveat, warrant in Appendix A, Part II No. 18). Whereby there must be given in the notice, an undertaking to enter an appearance in any action that may be commenced against the said property and to give bail in such action in a sum not exceeding an amount to be stated in the notice or pay such sum into the registry. Such provision does not appear in our Rules and the notice required to be given for the entering of a caveat against the issue of a warrant for the arrest. Therefore rule 70, hereinabove set out should be interpreted, as far as the "special circumstances" required to be proved for the issue of a warrant of arrest without notice to a caveator, in the light of this omission, so that if there is an immediate possibility of the ship sailing and the plaintiff suffering injustice therefrom in recovering hisclaim, that by itself mightin a proper case amount to the special circumstances required by this rule. As already seen in this case there existed this immediate possibility of the ship sailing. Needlesstosaythat theold RulesinEngland regarding caveats 351 A. Loizou J. Anastassiou v. Ship "Mahee"

(1982)against arrest have now been replaced by Order 75 rules 6 &7 of the new Rules whereby (rule 6) is provided that the fact that there is a caveat against arrest in force should not prevent the issue of a warrant to arrest the property to which the caveat relates and under rule 7 thereof provisions are made for the dis- 5 charge of a warrant of arrest unless the Court is satisfied that the party procuring the arrest of the property had a good and sufficient reason for so doing, and upon suchdischarge being ordered the person arresting may be ordered to pay to the applicant damages in respect of the loss suffered by the applicant as a 10 result of such arrest (rule 7). I cannot but only stress once more the need for a revision of our Rules of Court both with regard to civil matters and to the admiralty jurisdiction of this Court. The third pcint is that this warrant of arrest was not lawfully 15 executed inasmuch as no proper service was effected on the defendant ship. Under rule 55 of the Cyprus Admiralty Jurisdiction Order 1893 a warrant has to be served by the Marshal or hisofficers in the same manner as that prescribed by the Rules for the service of a writ of summons in an action in rem and 20 thereupon the property to be arrested. Under rule 16 a writ of summons in an action in remis served upon a ship by attaching an office copy of the writ to a mast or to some other conspicuous part of the ship, and under rule 58 the Marshal shall immediately after service of the warrant has been effected, 25 forward to the Registrar of the Court, a certificate of service. Such certificate must state by whom the warrant of arrest had been served and the date and mode of service and shall be signed by the Marshal. There exists in the file such a certificate signed by the Marshal 30 stating that "The warrant of this Court to arrest the ship MAHEE dated 12th May 1982 was served by the Deputy Marshal Economides Nicos and the Bailiff of the Supreme Court by fixing the warrant on the bridge door and Master's cabin door on the above ship on the 12th May 1982". 35 There is also a further affidavit of service made under Order 5 rule 2, of the Civil Procedure Rules, made by the processserver of this Court and which in so far as relevant reads: "I, G. Papamichael, a process-server, make oath and say 352 1 C.L.R. 5 Anastassiou v. Ship "Mahee" A. Loizou J. that I served an office copy of the writ of summons and order in Action No. 108/82of the Supreme Court Registry, at (

1. a)Larnaca on the 12th day of May, 1982, by leaving the same in the presence of Mr. Nicos Economides, Deputy Marshal of the Admiralty Court of Cyprus, the ship 'MAHEE', by affixing the writ of summons and order on the bridge of the ship by leaving a copy of the order withtheengineer ofthe shipasthe Masterwasnot on board the above ship which was lying at Larnaca port". 10 In my view no valid complaint can be made against the mode of service of the warrant of arrest in question. The Marshal's certificate issued under rules 58 and 59 constitute a complete answer to this ground of Law. I need not therefore deal with the legal position on which argument was advanced by learned 15 counsel for the applicants by reference to the case of Rolimpex CentralaHandlu Zagranicnego, Willy Bruns and Kamstra (Hull) Ltd., v. Prins Bernhard (owners), [1964] P. p. 117 regarding the consequences of a plaintiff's failure to follow the prescribed method of serving a writ against a ship which is by nailing or 20 affixing it to the mast or some other conspicuous place. The last point relates to the security bond given in pursuance to the condition contained in paragraph 3(
2. c)of the order hereinabove set out. This security was in the following form: 25 30 "To:-The Registrar of the Supreme Court of Cyprus. WHEREAS by an Order of the Court made in the above action on 12th May 1982, it was ordered that a warrant for the arrest of the Ship "MAHEE" be issued. NOW We, Chrysses Demetriades & Co., of Limassol, hereby give security in the sum of C£3,000.—for which we are to be answerable to the Registrar of the Supreme Court for the issue of the said Order. Dated this 12th day of May, 1982. (Signed) CHRYSSES DEMETRIADES & CO. Witnesses:-" 35 This is the kind of form of a security bond which has been used under the Civil Procedure Rules and the Admiralty Rules for the issue of interim orders when direction for the filing 353 A.Lotara J. Anastassiouv.Ship"Mahee"

(1982)of a security bond isgiven asa prerequisite to theissueof such an order. The omission of a reference to the words "to be answerable in damages to the defendant ship or her owner" does not vitiate the warrant as it goes without saying that in such a security bond the relevant terms of the warrant for the 5 arrest in respect of which it was given should be considered as incorporated therein by theinclusion ofthe term "for theissue" of such order, and that a personwhohas givensameis answerable in damages to the defendant ship and her owners against whom such order was made,otherwise it would bemeaningless 10 asthe Registrar hasno claimassuch against a person onwhose behalf the security bond is filed. This ground therefore should also fail. I need not deal, however, with the question of the increase of theamount of £3,000.—issued assecurity asbeinginadequate 15 astheparties haveagreed toincreasesameto£8,000.—inrespect of which a new security bond has been given on the following termswhichclarifies thepositionandwhosetermsareasfollows: "WHEREAS by an Order of the Court made in the above action on the4th day ofJune, 1982,itwasordered that the 20 above named Plaintiff give additional security in a total amount of £8,000.—, for maintaining the order of arrest oftheDefendant Shipmadeintheaboveactiononthe 12th May, 1982. Now We, Chrysses Demetriades & Co., Law Office, of 25 Limassol hereby give security iirthe total sum of£8,000.— (Eightthousand Pounds)uptowhichamount weundertake to be answerable in damages to the Defendant Ship and her ownersfor the issue ofthe said Order of arrest. Dated this 5th June, 1982. 30 (Signed) CHRYSSESDEMETRIADES AND CO Witnesses:-" I need only say that thisclearerform may befollowed in the future in order to avoid any unnecessary discussions. For alltheabove reasonsthemotion todischargethiswarrant 35 of arrest is dismissed and same remains in force as ordered. Costs in cause. Application dismissed. Costsin cause. 354