(1983)1983September 14 [SAVVIDES, J.] ABI-YAGHI TRADING CO. LTD., Plaintiffs, 1.ALIEFTIKI ETERIA MPAFAS LTD., 2.THE SHIP "JACOB OF PETER" NOW IN THE PORT OF LIMASSOL, Defendants. {Admiralty Action No. 400/77). Admiralty—Carriage of goods by sea—Duty of ship-owneras common carrier—Liability in case of loss or damage to goods—Exempted from liability in cases where, due to imminent danger to the ship or the lives on board, the master jettisons such amount of cargo as may be necessary to remove the danger—Ship-owners established defence that the loss of goods short-landed was due to such jettison. 5 Admiralty—Ship—General average—Deck cargo jettisoned—Principles applicable. Practice—Cause of action—Court bound to adjudicate on the cause or causes of action on whichthe claim is based and cannot deal with causes which are not raised by the writ of summons or the statement of claim. 10 The plaintiffs in this case claimed damages for breach of contract of carriage of goods shipped by the plaintiffs on defendant 15 2 ship, the property of defendants 1, for trasportation from Limassol to Jounieh, Lebanon. Plaintiffs alleged that the defendants, as common carriers and/or carriers for reward were responsible to the plaintiffs for the damage suffered by them in respect of goods which were short landed and for goods which 20 arrived in a bad condition and, also, for the profit which they would have realised by the sale of such goods. Part of these goods were loaded on deck with the consent of the plaintiffs but 744 1 C.L.R. Abf-YaghJ Trading Co. v. Mpafas Ltd. there was no evidence that the owners of other cargo have consented to such loading. 5 10 15 20 25 30 35 The defendants contended that the loss of the goods shortlanded was due tojettison ofsame asa result of imminent danger to the ship and the lives on board because ofextraordinary rough weather. Held,that though in so far as the ship-owner is in the position of a common carrier, he has a duty in respect of the custody and protection of the cargo during the voyage since he is absolutely responsible for its safely and is, therefore, liable to its owner in case of loss or damage caused by the failure of himself or his servants to exercise due care, he is exempted, however, from any liability incaseswhere, due to imminent danger to the ship or the lives on board of her, the Master has tojettison such amount of cargo as may be necessary to remove the danger; that to the cause of action relied upon by plaintiffs, which was based solely on the breach by thedefendants oftheir duty ascommon carriers, the defendants have established a defence that the loss of the goods short-landed was due to jettison of same as a result of imminent danger to the ship and the lives on board, and there is no evidence before me that the cause of loss or damage was due to anynegligent act on the part of thedefendants or that any part of the cargojettisoned was in excess of what was necessary to save the ship, the rest of the cargo and any lives on board; that, in consequence, the loss cannot be attributed to breach by the defendants of tlieir duty in respect of custody and protection of the goods during the voyage and in the circumstances they are exempted from liability for the loss of such goods; accordingly plaintiffs' claim in respect of short-landed goods must fail.
(2)That there was no evidence to support plaintiffs' claim which concerned goods delivered in such bad condition as to be of a non-merchantable value; accordingly this claim must, also, fail. Held,further, on the question whether the plaintiffs were entitled to general average contribution {after dealing with the principles governing general average contribution). That the owner of deck goods jettisoned may be entitled to general contribution in a case where the other owners of cargo have consented that the goodsjettisoned should be carried on the deck of 745 Abi-Yaghi Trading Co. v. Mpafas Ltd.
(1983)theship; thatinthiscasethecargowas loaded ondeckwiththe consent of its owners but that the other cargo owners have not consented to such mode of loading; and that, therefore, the other cargo owners were not liable for contribution and the defendants by delivering such cargo to them were not in breach 5 of their duty to plaintiffs to secure contribution from the other cargo owners; that,further, irrespective ofwhether ornotthere was liability for contribution since the cause of action in this case was not one of breach by defendants for failing to secure contribution but it was solely based on the breach by the de- 10 fendants of their duty as common carriers, this Court cannot deal with causes of action which are not raised by the writ of summons. Action dismissed. Cases referred to: The Gratitudine[1801] 3 Ch. Rob. 240; StrangSteel & Co. v. Scott & Co., Aspinall Maritime Law Re ports Vol. 6 p. 419; Burton v. English [1883] 12 Q.B.D. 218 at pp. 220, 221, 222; Simond v. White, 2 Β & C 811; 15 20 Crooks & Co. & Another v. Allan [1879] 5 Q.B.D. 38; Wright v. Marwood [1881] 7 Q.B.D. 62. Admiralty action. Admiralty action for damages for breach of contract of carriage of goods for transportation from Limassol to Jounieh, 25 Lebanon. St. McBride, for plaintiffs. P. Sarris, for defendants. Cur. adv. vult. SAVVIDES J. read the following judgment. The plaintiffs' claim in this action is for damages for breach of contract of carriage of goods shipped by the plaintiffs on defendant 2 ship, the property of defendants 1, for transportation from Limassol to Jounieh, Lebanon. 30 The amount so claimed is U.S. dollars 750 and C£4,410.being the value of goods shortlanded and/or landed in such damaged condition so as to be of no merchantable value. Also, a sum of C£757.700 mils is claimed in respect of dispatch 35 746 1 C.L.R. Abi-Yaghi Trading Co. v. Mpafas Ltd. Savvides J. expenses. In addition to the above, the plaintiffs claim 30 per cent on the value of the goods for loss of a minimum profit on the value of the goods which the plaintiffs would have realised from the sale of the said goods. 5 Thefacts before meare briefly asfollows: Defendants 1 are the ownersofdefendant 2shipwhich isa fishing trawler. Due to theprevailing abnormal situation in Lebanon at the material timeandthedifficulty ofregularcommunication betweenCyprus and Lebanon bycargo ships,all typesof conveyancewerebeing 10 used for the transportation of goods from Cyprus to Lebanon. For such purpose, fishing boats and fishing trawlers were also used. Insurance companies were unwilling to insure goods destined for Lebanon. The plaintiffs, which are a Lebanese company,boughtfrom Cypruscertaingoodswhich,throughtheir 15 shippingagents,they arranged tosendto Lebanonby defendant 2 ship. Such goods consisted of cartons containing epaulettes, electrical and other goods, and also drums containing putty, most of which they bought through persons whoacquiredthem at public auctions, and a disinfectant known as "Hypton" 20 which they bought from a commercial firm in Cyprus. • According to the evidence of the Managing Director of the plaintiffs, the goods wereloaded on defendant 2ship and a bill of ladingwas issued which, however, "remained inthehandsof the Master of the ship because the distance from Cyprus to 25 Jounieh issosmall that theshipwould havearrived earlierthan sending the bill of lading by mail or by any other means." Theship left from Limassolbut on itswaytoJouniehand at a distance of about 60 miles from Cyprus, according to the evidence of the Master of the ship, she encountered extra30 ordinarily rough weather and a storm which endangered both thevessel and the livesof the crew and of passengers whowere accompanying the goods. The Master did his best to navigate the ship, but, as the danger was becoming imminent, in order to save the ship, the lives on board and the cargo, he had to 35 jettison part of the cargo which was stored on deck. This temporarily minimised the danger of sinking of the ship but, as the weather wasnot improving and the ship could not continue her trip under such weather conditions, the Master navigated her back to Limassol. Whilst at Limassol the remainingcargo 747 Savvides J. Abi-Yaghi Trading Co.v. Mpafas Ltd.
(1983)was unloaded, dried up and reloaded on the ship which finally sailedfrom Limassoland reached itsdestinationwherethegoods were unloaded. WhentheshiparrivedatJouniehandhercargowasunloaded, the plaintiffs found that 446 drums of putty, 90 cartons cf 5 baskets, two boxes of refrigerator gaskets and ISO grosses of prophylactics were shortlanded. Also, according to the evidence of the Managing Director of the plaintiffs, one carton of epaulettes was half hanging from the boat and touching thesea and theplaintiffs refused to accept delivery of same after it was 10 unloaded. The only goods which were collected, according to thesameevidence,were(a)30cartons ofHypton, (
- b)11cartons of epaulettes, (
- c)50cartons of baskets, (
- d)11boxes of gaskets and (
- e)14 drums of putty, but when these goods were later examined by him, they were found to be so dampened by sea 15 water that they were not of merchantable quality and, in consequence, they were a total lossand as a result they were abondoned in the port. It is the allegation of the plaintiffs that the defendants, as common carriers and/or carriers for reward, are responsibleto 20 the plaintiffs for the damage suffered by them both in respect of the shortlanded goods and for the goods which arrived in a bad condition and also for the profit which they would have realised by the sale of such goods. The defendants by their answer deny any liability and allege 25 that they arerelieved from any liabilityfor thegoodswhichhad to be jettisoned in order to save the remaining cargo and the shipandthattheydeliveredtherestofthegoodstothe plaintiffs. In the course of the hearing the plaintiffs abandoned their claim in respect of one caseof electrical goods valued at £400.- 30 havingadmittedthat suchgoodswerereceivedingoodcondition, unaffected by sea water. Also, the amount in respect of dispatchexpenseswasagreedat£700.-andwasreducedaccordingly. One witness testified for the plaintiffs, namely, GhassanAbi Yaghi (P.W.I), the Managing Director and person in charge of 35 the business affairs of the plaintiff company, whereas the defendants called two witnesses, namely, Apostolus Mpafas (D.W.1),theMasterofthe shipatthematerialtime,andAndreas 748 1 C.L.R, Abi-Yaghi Trading Co.v. Mpafas Ltd. Savvides J. Omirou (D.W.2), a clearing and forwarding agent who was the person through whom the shipment was effected. It has not been disputed that the goods in question were loaded on defendant 2 trawler for transportation from Limassol 5 toJounieh. Ihavealsonot theslightestdoubt thatthe plaintiffs, either personally or through their forwarding agent, were well aware that the defendant ship was not an ordinary cargo ship but a fishing trawler. As to whether a bill of lading was issued in respect of these 10 goods and the other goods' loaded by other consignors on the defendant ship, though the Managing Director of the plaintiffs inhis evidence said that bills of lading were issued and remained in the possession of the Master of the ship, on the totality of the evidence before me I find that no proper bills of lading were 15 issued and this appears in the evidence of D.W.2, the clearing' and forwarding agent, who, in cross-examination, admitted that "it was not actually bills of lading but it was cargo declarations which were issued and we were delivering a copy of it to them". And, in answering a question as to whether bills of lading were; 20 in fact, issued, he answered in the negative, repeating his statement that what was issued were only cargo declarations, a copy of which has been produced as exhibit 1(c). Exhibit 1(
- c)is a general cargo declaration describing the names of the persons who loaded cargo on the defendant ship on this particular 25 occasion, as well as the number and kind of packages of goods and their description, but no description of the value of each particular consignment ismentioned therein. Under the column "bill of lading number" serial numbers I - 9 appear but these are, rather, serial numbers of the consignors than the serial 30 numbers of bills of lading issued. From what appears from this cargo declaration, there were originally 9 consignors, one of whom at the end did not load any goods and the other goods excluding those of the plaintiffs, consisted of cartons of tuna, cigarettes, whisky, batteries and machinery. As there was not 35 sufficient room in the hold, goods contained in iron drums or packed ina way soasnot to beaffected byseawater, werestored on the deck of the ship. According to the evidence of the shipping agent, in the case of goods whichwereloaded on thedeck, they were accompanied 40 by their owner or his agent who was travelling with the same 749 Sa^ides J. Abi-Yaghi Trading Co. \. Mpafas Ltd.
(1983)ship, and in this particular case the goods which were loaded on the deck and belonged totheplaintiffs, wereaccompaniedby an Arab who was the person who appeared to be acting onbehalf of the owners and with whoseconsent certain goods of the plaintiffs were loaded on deck. Such person was, according to 5 the evidence, the brother-in-law of the Managing Director of the plaintiffs and was.the person who arranged with D.W.2 the shipment, paid the transportation fees and travelled on the defendant ship. Another passenger also travelled with the ship accompanying his goods. 10 In the answer to thepetition it is alleged that the goods were jettisoned, withtheconsentand attherequest oftheagentofthe plaintiffs who was accompanying the goods, for the purpose of saving their lives. In his evidence, however, the Master said that when he encountered the stonny weather and the lives of 15 thepassengers and crewwereindanger and theshipran therisk of being sunk, irrespective of the fact that the two passengers, who were accompanying the goods, were crying and requesting him to do whatever was possible to save their lives, he did not have to follow any 'request from anybody to jettison goods, 20 because,ashesaid: "Ididn't havetoaskpermissionfrom them tojettison goodsintheseabecausethoughtheywereprayingme to do whatever I could to save their lives, 1 was not bound to follow their instructions. It was my duty as a Captain of the shiptoseethat oncetherewasimminentdanger,toactaccording 25 towhatwasthebestcoursetofollow." Thecoursefollowed by the Master of the ship in thedischarge of his duty to savelives and cargo,wastheproper one,havingactedaccordingtohisown judgment and not according to the request of anybody else. I am satisfied in the present case that after the ship had left 30 Limassolport in good weather and had travelled about 60miles from Limassol,itencountered veryrough seawhichput theship into imminent danger of sinking and of lives being lost which led the master to take the decision tojettison part of the cargo to save the rest and the ship, as well as the lives on board. I 35 accept the evidence of the master in this respect. Furthermore, from the various exhibits before me which were put in byconsent, it isclearthat the fact that a general average took place was not disputed by the plaintiffs. Exhibit 1(b) 750 I CJ..R. ΛΜ-Yaghl Trading Co. v. Mpafas Ltd. Savvides J . which is a letter written by counsel for the plaintiffs on 25.2.77 reads as follows: "Κυρίους BAFAS FISHING COMPANY LTD. 5 10 Κύριου Φίλιτπτον Μπάιρον Όδός 'Αθανασίου Διάκου 17 Στρόβολος. Κύριοι, M/V JACOB OF PETER-Γενική 'Αβαρία κατά ή περ τήν 26.11.1976 'Αναφερόμεθα εις την έπΐ τού ώς άνω θέματος έπιστολήν μας ημερομηνίας 29.12.1976 καΐ παρατηρούμευ μετά λύπης μας οτι παραλείψατε να μας απαντήσετε. 15 20 25 30 35 "Εχομεν τΊδη λάβει δήλωσιν τοΰ φορτίου τοϋ σκάφους κατά τήν αναχώρησαντου έκΛεμεσού κατάή περί τήν 26.11. 1976 καΐ ώς φαίνεται είς τήν τοιαύτην δήλωσιν οι λοιποί φορτωταϊ είχαν πολύ περισσότερου και πολύτιμου φορτίου έπΐ τού πλοίου το όποιον διεσώθη κατόπιν τοΰ καταποντισμού τού φορτίου των πελατών μας ABI-YACHI TRADING CO. LTD. Ώς ασφαλώς θά γνωρίζετε είς περίπτωσιν 'Αβαρίας οΐ Ιδιοκτηται τού διασωθέντως φορτίου ώς επίσης και οϊ πλοιοκτηται θά πρέπει νά συνεισφέρουν κατά λόγον της αξίας τού διασωθέντως φορτίου και τού σκάφους και τοϋ ναύλου διά την ανάλογου μείωσιυ της ζημίας τώυ ίδιοκτητώυ τού φορτίου το όποιον καιεποντίσθη. Περαιτέρω οί πλοιοκτηται έχουν καθήκον νά διευθετήσουν τήν συνεισφοράυ εκάστου ενδιαφερομένου και νά λάβουν τα αναγκαία μέτρα και νά προβούν εις τάς αναγκαίας δια τυπώσεις αλλ' ώς πιστεύομεν ουδέν έξ αυτών έγένετο. Έν πάση περιπτώσει διά σκοπούς διευθετήσεως της υπο θέσεως κατάτρόπου φιλικόν δέν θά έξετάσωμεν έπΐ τού παρό ντος κατά πόσον ή 'Αβαρία ήτο δικαιολογημένη ως και τους λόγους οί όποιοι ώδήγησαν εις τήν'Αβαρίαυ (καθ'ότι υπάρ χει Ισχυρισμός ώφείλετο είς BAD STOMAGE τοΰ φορτίου) καί είμεθα διατεθιμένοι νά εχωμεν μίαν συνάντησιν μαζί σας 751 Savvides J. Abi-Yaghi Trading Co.v. Mpafas Ltd.
(1983)διά συζήτησιν τοΰ θέματος άνευ βλάβης των δικαιωμάτων αμφοτέρων. Παρακαλοΰμεν δπως μαςγνωρίσετε τάς απόψεις σας ώς και τόν χρόνου καΐ τόπον τηςσυναντήσεως, έάν επιθυμείτε τήν τοιαύτην ουνάντησιυ. Μετά τιμής, Μ.Μ. Χούρη & Σία". 5 The English translationofwhich reads: ("Messrs. Bafas FISHING COMPANY LTD. Mr. Philippos Bafas Athanasiou Diakou 17 Strovolos. 10 m/v JACOB OF PETER - General Average on or about the 26.11.76. We refer to our letter ontheabove subject dated 29.12.76 and weregret to observe that youhave failed to send usa reply. 15 We have already received adeclarationofthecargo ofthe ship athis departurefrom Limassol onorabout the 26.11.76 and asitappears from such declaration theotherconsignors 20 had much more andvaluable cargo on the ship whichwas saved as a result of thejettison of the cargo of our clients ABI-YIAGHI TRADING CO. LTD. As you are well aware, in case of general average the · owners of the cargo which was saved as well as theship- 25 owners have to contribute proportionately to thevalue of the cargo saved, the ship and thefreight, for minimizing the the loss of the owners of the cargo which was jettisoned. Furthermore, theshipowners hada duty to arrangethe contribution of each interested party and take the necessary 30 steps and all necessary formalities which, as we believe, they have notdone. In any case for purposes of settlement of thecase in a friendly way,weshall not examine for the time being whe ther theaverage wasjustified as well as thereasons which 35 led tothe average (asthere is anallegation that it was due 752 1 C.L.R. AbE-Yaghf Trading Co. v. Mpafas Ltd. Smvides J. tobad stowage ofthecargo) and weareprepared to havea meetingwithyouto discussthematter withoutprejudice to either side's rights. 5 Please let usknow your viewsand the time and placeof the meeting if you wish such a meeting. Yours faithfully, (Sgd)M.M. Houry&Co."). Bysuch letter thefact that therewas a general average isnot denied. The only matter which is disputed is whether such 10 averageandthereasonswhichledtoit,werejustified OPwhether same was the result of negligence due to bad stowage. In so far as the ship-owner is in the position of a common carrier, he has a duty in respect of the custody and protection ofthecargoduringthevoyagesinceheisabsolutely responsible 15 for itssafety. Heis,therefore, Uabletoitsowner incaseofloss or damage caused by the failure of himself or his servants to exercise due care. He isexempted, however, from any liability in cases where,due to imminent danger to the ship or thelives onboard ofher,theMaster hastojettison suchamount ofcargo 20 asmaybenecessarytoremovethedanger. Heistheonlyperson tojudgeastowhatgoodshavetobejettisonedandhemayselect what articleshepleasesand any quantity that isnecessary, and in extreme cases he may jettison even the whole cargo. {The Gratitudine [1801J 3 Ch. Rob. 240). It is wellestablished that, 25 if the Master jettisons more cargo than is necessary to remedy thedangertotheship,theship-owner isliabletomakegoodthe full value to the cargo-owner, and the ship-owner is similarly liablewhencargohasbeenrightlyjettisoned incaseofnecessity, but at a time when there has been a deviation from the stipu30 lated voyage. (See Halsbury's Laws of England, 4th Edition, Volume 43, p. 139, para. 201). Under paragraph 610 of the sameedition of Halsbury's LawsofEngland, atp,418,weread: 35 " He may, where the circumstances of the particular casejustify it, sacrifice thewhole or a portion of thecargo, for the purpose of preserving the ship and the rest of the cargo,byjettisoninggoodstolightentheshiporbyburning them to enablethefires tobekeptupunder theboilers " Thecommon lawdutiesofa carrier of goodsby seaaresuro753 Savvides J. Abi-Yaghi Trading Co. v. Mpafas Ltd.
(1983)marised in Carver's Carriage of Goods by Sea 12th Edition, Vol. 1, pp. 18, 19, under para. 20, as follows: "Where, then, a shipowner receives goods to be carried for reward, whether in a general ship with goods of other shippers, or in a chartered ship whose services are entirely 5 at thedisposal of theonefreighter, it isimplied incommon law, in the absence of express contract Thatheistocarryanddeliverthegoodsinsafety, answeringfor all lossor damagewhichmayhappen to them while they are in his hands as carrier: 10 Unless that has been caused by some act of God, or of the King's enemies; or by some defect or infirmity of the goods themselves, or their packages; or through a voluntary sacrifice for the general safety: And, that those exceptions are not to excuse him if he 15 had not been reasonably careful to avoid or guard against the cause of loss, or damage; or has met with it after a departure from the proper course of the voyage; or, if the loss or damage has been due to some unfitness of the ship to receive the cargo, or to 20 unseaworthiness which existed when she commenced her voyage". It is the duty, however, of the Master or shipowner when a general loss has arisen to adjust the average claims and liabilities between all cargo owners and secure their payment 25 proportionately to the loss sustained. In this respect, he has a right to detain all the cargo till payment ismade by all cargo owners or security for payment of their proportion to the loss is made. The right to detain for contribution appears to have derived from the Civil Lawand the usage has always been sub- 30 stantially in accordance with the law and has become part of the Common Law of England. The rule of contribution in cases ofjettison has its origin in the Maritime Law of Rhodes of which the text as preserved by Paulus (Dig.L.14, tit.2) is— "Si levandea navisgratiajactusmercium factus est,omnium 35 contributione sarciatur, quod pro omnibus datum est". (see Strang Steel & Co.v. Scott & Co., AspinallMaritime Law Reports, Volume 6, p. 419). 754 1 C.L.R. Abi-Yaghi Trading Co. v. Mpafas Ltd. Sauides J. The origin and nature of general average contribution is briefly givenby Brett, M.R. in Burtonv.English[1883] 12Q.B.D. 218 at pp. 220, 221, as follows: •a r.· 5 10 15 20 25 30 "How. does such a claim arise? In theory it arises from an act done by the master of the ship, not as the servant of the shipower, but as the servant of the cargo owner, a relation which is imposed on him by the necessity of the case. It arises by reason of a voluntary sacrifice by the cargo owner for the benefit of the ship and cargo, and not from any act done by the shipowner at all. By what law does the right arise to general average contribution? Lord Bramwellinhisjudgment in Wright v. Marwood1 considers it to arise from an implied contract, but although I always have great doubt when I differ from Lord Bramwell, I do not think that it forms any part of the contract to carry, and that it does not arise from any contract at all, but from the old Rhodian laws, and has become incorporated into the law of England as the law of the ocean. It is not as a matter of contract, but in consequence of a common danger, where natural justice requires that all should contribute to indemnify for the loss of property which is sacrificed by one in order that the whole adventure may be saved. If this be so, the liability to contribute does not arise out of any contract at all, and is not covered by the stipulation in the charterparty on which the defendants rely the acts of the captain with reference to property or improperly jettisoning part of the cargo are not both done by him in the same capacity, one is done by him as the agent of the cargo owner, and the other as the servant of the shipower" Bowen, L.J. in the same case at p. 223, had this to say: 35 "General average contribution is a principle which comes down tousfrom an anterior period of our history, and from the law of commerce and the sea. When, however, it is once established as part of the law, and as a portion of the risks which those who embark their property upon ships are willing to take, you may if you like imagine that those who place fheir property on board a ship on the one side, and the shipower who puts his ship by the quay to 1. 7 Q.B.D. 62 at p. 67. 755 Savvides J. Abi-Yaghi Trading Co. v. Mpafas Ltd.
(1983)receive the cargo on the other side, bind themselves by an implied contract which embodies this principle, just as it may be said that those who contract with reference to a custom impliedly make it a portion of the contract. But that way, although legally it may be a sound way, 5 nevertheless isa technical wayof looking at it. Thisclaim for average contribution, at all events, is part of the law of the sea, and it certainly arises in consequence of an act done by the captain as agent not for the shipowner alone,but alsofor thecargoowner,bywhichacthejettisons 10 part of the cargo on the implied basis that contribution willbemade by theship and by the other owners ofcargo. He makes the sacrifice on behalf of one principal, whose agent of necessity he is, on the implied terms, if you like to call it so, that that principal shall be indemnified after- 15 wards by the rest'*. In Strang Steel& Co.v. Scott andCo.(supra), Lord Watson inconsidering theabovedicta in Burton's caseand the question whether the rule ought to be regarded as a matter of implied contract or as a canon of positive law resting upon the dictates 20 of natural justice, made the following remarks at p. 421: "Whethertheruleoughttoberegarded asmatter ofimplied contract, or as a canon of positive law resting upon the dictates of natural justice, is a question which their Lordships do not consider it necessary to determine. Theprin- 25 cipleuponwhichcontribution becomesduedoesnot appear to them to differ from that upon which claims of · recompence for salvage services are founded. But, in any aspect of it, the rule of contribution has its foundation in the plainest equity. In jettison, the rights of those 30 entitled to contribution, and the corresponding obligations of the contributors, have their origin in the fact of a common danger which threatens to destroy the property of them all; and these rights and obligations are mutually perfected whenever the goodsof someof theshippershave 35 been advisedly sacrificed, and the property of the others has been thereby preserved". And as to the right of the owner of jettisoned goods for «ntribution pro rata of theownersofthe shipand cargosaved, it pp. 420, 421, Lord Watson said: 756 40 1 C.I..R. 5 10 15 20 25 30 35 40 Abi-Yaghi Trading Co. v. Mpafas Ltd. Savtides J. "It may be convenient in dealing with it to considerfirst of all the rights and remedies which the owners of cargo thrown overboard have in a proper caseofjettison. Some of the qualities of theirright,and of the remedies bywhich may beenforced, have been authoritatively defined. Each owner of jettisoned goods becomes a creditor of ship and cargo saved, and has a direct claim against each of the owners of ship and cargo, for a pro rata contribution towards his indemnity, which he can enforce by a direct action. InDobson v. Wilson (3Camp.480)Lord Tenterden said: 'If a shipper of goods which are sacrificed for the salvation of the rest of the cargo is entitled to receive a contribution from another shipper whose goods are saved, I know not how I can say that this may not be recovered by an action at law. This is a legal right, and must be accompanied with a legal remedy'. Again, it issettled lawthat, inthecaseof ageneral ship,theowner of goods sacrificed for thecommon benefit has a lien upon each parcel of goods salved belonging to a separate consignee for a due proportion of his individual claim. The cargo not being in his possession or subject to his control, his rights of lien can only be enforced through the shipmaster, whom the law of England, following the principles of the Lex Rhodia, regards as his agent for that purpose. Theduty being imposed bylawuponthe master, he isanswerable for its neglect. In thecourse of the argument, his liability in that respect was questioned upon the authority of certain dicta of Lord Eldon's in Hallett v. Bousfield (18 Ves. 187). The circumstances of that case were very special. One of a number of persons alleging a right tocontribution applied for an injunction to restrain themasterfrom deliveringthecargowithouttakingsecurity, the bulk of them having consented to his so doing. Lord Eldon expressed a doubt whether it was the right of every owner of part ofthejettisoned cargotocompel thecaptain to call on every owner of cargo saved to give security; but he dismissed the application on the ground that there was no instance of such an equitable remedy having been granted. Courtsofequityarecharyofgranting injunctions which may lead to inconvenient results; and it does not follow from Hallett v. Bousfield that a master might not be restrained from making delivery of the cargo, at the 757 Savvides J. Ahl-Yaghi Trading Co. v. Mpafas Ltd.
(1983)instance of all or most of those entitled to contribution. without taking security for their claims. But their Lord ships see no reason to doubt that, assuming the applicant's claim for contribution in that case to have been well founded, he would have had his remedy at law. In Crooks 5 and Co. v. Allan (41 L.T. Rep. N.S. 800; 4 Asp. Mar. Law Cas. 216; 5 Q.B. Div. 38). Lord Justice (then Mr. Justice) Lush held that a master or shipower is bound to exercise the power he is invested with when a general loss has arisen. and to use the means in his power for adjusting the average 10 claims and liabilities and securing their payment, and he accordingly ordained the defendants, who had neglected ιο perform that duty, to pay to the plaintiffs the whole amount of contribution to which they were entitled. The learned Judge observed, that 'the right to detain for contri- 15 buiion is derived from the civil law, which also imposes on the master of the ship theduty of having thecontribution settled and of collecting the amount, and the usage has always been substantially in accordance with that law, and has become part of the common law of England' ". 20 In Simonds v. White, 2 Β & C 811, Abbott C.J. said: "The principle of general average, namely, that all whose property has been saved by the sacrifice of the property of another shall contribute to make good his loss, is of very ancient date and of universal reception among commercial nations. The obligation to contribute, there fore, depends not so much upon the terms of any particular instrument as upon a general rule of maritime law. The obligation may be limited, qualified, or even excluded by the special terms of a contract as between the parties to the contract, but there is nothing of that kind in any contract between the parties to this cause. There are however many variations in the laws of usages of different nations as to the losses which are considered to fall within this principle". In Crooks & Co. & Another v. Allan [1879] 5 Q.B.D., p. 38, it was found that a shipowner, where a general average loss has occurred, may be liable to an action for damages for deliver ing up the cargo without taking the necessary steps for procuring an adjustment of the general average and securing its payment. 758 25 30 35 40 1 C.L.R. AbUYnghi Trading Co. v. Mpafas Ltd. Sarrides J. ft was held in that case, first, that the bill of lading did not relieve the defendants from contribution to general average. and, secondly, they were liable to an action by the plaintiffs for their omission to take the necessary steps to secure an ad5 justiment of the payment of the general average. As to the position of deckcargo,however, it hasbeen generally accepted that the deck is not a proper place for cargo because goods so placed there obstruct the'working of the ship and are under peculiar risks. Therefore, the jettison of goods which 10 were on deck docs not entitle their owner to contribution from the other cargo owners. An exception to this rule is referred to in Carver Carriage of Goods by Sea, 12th Edition, Volume 2, at p. 753, paragraph 886, as follows: 15 20 "The rule does not however apply on voyage where the *carrying of goods on deck is permitted by the established custom of navigation: nor *where the other owners of cargo have consented that the goods jettisoned should be carried on the deck of the ship". In those cases a loss of the cargo byjettison must becontributed to in the usual manner". Reference is made in support of the above proposition to the cases of Strang Steel & Co. v. Scott & Co., (supra) in which Lord Watson had this to say at p. 421 (Aspinall Reports): 25 30 35 "The second exception is in the case of deck cargo. The reason why relief by general contribution is denied to the owners of goods stowed on deck, when these are thrown overboard in order to save the cargo under hatches, is obvious. According to the rules of maritime law, the placing of goods upon the deck of a sea-going ship is in«proper stowage, because they are hindrances to the safe na\igation of the vessel; and their jettison is therefore, regarded, in a question with the other shippers of cargo, as a justifiable riddance of incumbrances which ought never to have been there, and not as a sacrifice for the common safety. But the owner of deck goods jettisoned, though not entitled to general contribution, may nevertheless have a good claim for indemnity against the master and owners who received his goods for carriage upon deck; and the exception does not apply, either
(1)in those cases 759 Savvides J. Abi-Yaghi Trading Co. v. Mpafas Ltd.
(1983)where, according to the established custom and navigation, such cargoes are permitted, or
(2)in any case where the other owners of cargo have consented that the goods . jettisoned should be carried on the deck of the ship". In Wright v. Marwood, [1881] Q.B.D., p. 62, where the plain- 5 tiffs shipped certain cattle as deck cargo and as a result of a stonn which arose, -the master jettisoned the deck cargo by throwing the cattle overboard and such act was found necessary for the safety of the ship, it was held that the plaintiffs could not recover from the defendants a general average contribution 10 for the loss of the cattle. With the above legal principles in mind, I am now coming to consider whether thedeckcargo,part of which wasjettisoned, was put there (
- a)with the consent of the plaintiffs, which would have legalised the act of the master for placing it on deck, 15 and (
- b)with the consent of the other cargo owners which would have made them liable for contribution to the general average. On the evidence beToreme Iam satisfied that Maroun Khalifi, the brother-in-law of P.W.I, was acting all along as the agent 20 of the plaintiffs concerning the shipment of the plaintiffs' goods. He was the person who took an active part in the dispatch of the goods. He himself paid the freight for the goods and re/ quested to accompany same during the trip to Jounieh, a fact which he did. I have not believed P.W.I that such person 25 wasmerely a passenger for whom he made arrangement to travel to Jounieh with defendant 2ship on the occasion of the carriage of the goods by the same boat. Though such person was a close relative of P.W.I and the allegations of the defendants that he was acting as agent of plaintiffs were made known to 30 them by the allegations in the answer, the plaintiff did not call him as a witness to contradict the defendants. P.W.I also, though in his evidence alleged that his forwarding agent in Limassol was Zenon Markides he did not call such person as a witness to support plaintiffs' version and contradict the 35 defendants. Maroun KJtalifi knew all along that part of plaintiffs' cargo was loaded on deck, having seen the cargo so placed and having accompanied same during the journey, but he never protested or objected to its loading on deck. The loading therefore, of part of plaintiffs' cargo on deck, was within 40 760 I C.L.R. Abi-Yaghi Trading Co. v. Mpafas Ltd. Sav\ides J. the contemplation of the plaintiffs and was effected with their consent through their aforesaid agent. There is no evidence before me that the owners of other cargo have consented to the loading of part of plaintiffs' cargo 5 on deck. The master of the ship gaveevidence as D.W.I and the plaintiffs had ample opportunity to ask him whether the other owners consented to the carriage of deck cargo to make such owners liable for contribution to the general average. Nothing of this sort was suggested to him and no evidence 10 has been called to the effect that the other cargo owners consented to such mode of loading. In the absence of any evidence tothat end, I cannotfindthat the other cargo owners wereliableforcontribution andthat thedefendants bydelivering suchcargoto them wereinbreach oftheirduty to the plaintiffs 15 to secure contribution from the other cargo owners. Furthermore, it has not been alleged in the writ of summons or the pleadingsthat theshipanditsfreight areliablefor contribution and there is no evidence as to the extent of contribution of the ship and freight. Irrespective, however, as to whether or 20 not there was liability for contribution by the other cargo owners and by the ship and its freight and any breach of duty by the defendants for failing to secure contribution, the cause of action in thepresent caseisnot one for breach of suchduty or for negligence by the defendants to secure contribution. 25 The cause of action and the prosecution of their case by the plaintiffs wasallalongthat thedefendants are Uableascommon lawcarriersfor the lossof plaintiffs' goods. From thecontents ofexhibit 1(c)itisclear that theplaintiffs knewlongtime before the institution of the action, that the defendants were relying 30 for their defence on a general average. What appears to be their complaint in exhibit 1(
- c)is that the defendants failed to arrange contribution from the other cargo owners who owned much morevaluable cargo and also contribution from the ship and the freight and an allegation of bad stowage of the cargo. 35 In civil proceedings the Court is bound to adjudicate on the causeorcausesofactiononwhichtheclaim isbasedandcannot deal with causes which are not raised by the writ of summons or the statement of claim. As I have already mentioned the cause of action isbased solely on the breach by the defendants 40 of their duty as common carriers and no cause of action is 761 Savvides J. Abi-Yaghi Trading Co. v. Mpafas Lid.
(1983)relied upon either additionally or in the alternative for breach by the defendants of any duty for securing contribution from other co-owners in the general average or for negligence in delivering the rest of the cargo to its owners without securing contribution from them and for damages resulting thereof or 5 for pro rata contribution of the ship and the freight. Such damages could have been easily claimed and proved, as most of the other cargo consisted of merchandise such as cigarettes, whisky, batteries and tuna, the value of which as well as the value of the ship which is also liable for contribution in case 10 of a general average, could have been assessed by an assessor. Therefore, theonlycauseofactionon which Ihaveto adjudicate is whether the defendants are in breach of their duty as common carriers. To such cause the defendants have established a defence that the loss of the goods short-landed 15 was due tojettison of same as a result of imminent danger to the ship and the liveson board, and there isno evidence before me that the cause of loss or damage was due to any negligent act on the part of the defendants or that any part of the cargo jettisoned was in excess of what was necessary to save the ship, 20 the rest of the cargo and any lives on board. In consequence, the loss cannot be attributed to breach by the defendants of their duty in respect of custody and protection of the goods during the voyage and in the circumstances they are exempted from liabilityfor thelossofsuchgoods. Intheresult,plaintiffs' 25 claim in respect of short-landed goods, fails. I come now to consider the rest of plaintiffs' claim which concerns goods which are alleged as having been delivered in such bad condition as to be of a non-merchantable value. P.W.I said in his evidence that with the exception of one box 30 of epaulettes which he saw soaked in sea water and which he refused to collect, all other goods landed weredelivered tohim and that the ship left after unloading. Upon inspection of such goods by him after delivery, hefound them to be affected by sea water to such an extent asto make them of unmerchant- 35 able value and he abandoned them in the port. The plaintiffs howeverhavenotadducedanyevidenceeitheroralordocumentary from any appropriate port authority, as to the condition of the goods after unloading. Nor did they call an assessor 762 1 C.I .Η. Abi-Yaghi Trading Co. v. Mpafas Ltd. Sauldcs J. to inspectthegoods andverify thealleged damagetosuchgoods. Without examining whether the alleged damage might have beenthe result of the same cause which led to the general average, as 1have not heard any argument on this point, in 5 theabsence of any evidence supporting that of P.W.I and veri fying the alleged damage, I find myself unable to accept such evidence and rely on it. Needless to add, that I have notbeen impressed by the evidence of P.W.I on this issue as to accept it without any supporting evidence which, in thecircumstances, 10 1 deem necessary. In the result, theaction fails, but in thecircumstances I make no order for costs. Actiondismissed with no order as to costs. 763