clr/1983/1983_1_773.pdf

(1983)was U.S. dollars 1,750,000, was not sufficient to cover the claims against her and if she continued to remain under arrest, the monthly expenses for keeping her under arrest were so huge as to drain continuously the fund available for payment of any debts with the result that the only persons who will suffer in the 5 end will be the plaintiff whose claim ran after the claims of the crew and the Marshal's expenses which have priority over their claim; and that the defendant ship had noihing to lose by the arrest remaining indefinite, as her owners have never contributed anything to the Marshal for maintaining a skeleton crew 10 on the ship or for other necessary expenses for the safe keeping of the ship. Held, that though interlocutory orders for appraisement and sale pendente lite of a ship under arrest are exceptional, nevertheless, they can be made if such circumstances exist that justify 15 the making of such order; that since if the ship remained under arrest without being sold pending the trial of the action, the value of the security obtained by the plaintiffs through arresting her, would be progressively diminished by the continuing costs of maintaining her arrest and that such diminution 20 would be a particular hardship to the plaintiffs, because their claim greatly exceeds the value of the ship especially having regard to the fact that the applicants since arrest till the hearing of this application, have paid money in the region of £100,000.for crew claims, insurance, Marshal and other expenses and 25 continue to pay sums exceeding £5,000.- per month; that since the owners of the defendant ship have never been prepared to bear or contribute to those costs, but, on the contrary, their attitude all along, was that the plaintiffs should be burdened till the determination of the action; that since the prolonged stay 30 of the ship under arrest was causing the defendant ship deteriorate and that by being kept under arrest outside the port she was exposed to grave risks due to changing weather conditions; and that since after the conclusion of the hearing of the action there is always the right of appeal which will prolong the final de- 35 termination of the action for quite a long time in the future this is a proper case for making an order for the sale of the ship pendente lite; accordingly an order for the sale of the ship pendente lite after appraisement of her value by the Marshal and that the proceeds of the sale be brought into Court will be 40 made. Application granted. 774 1C.L.R. 5 10 15 WilliamsandGlyn'sBankLtd\. Ship "Maria" Cases referred 10: Williams & Glyn's Bank v. Theship "ΛίβΓ/β"(Ι983) I C.L.R.124; Almyr Maritime S.A. v. TheCargo on Boardthe Ship "Almyrta"

(1975)I C.L.R. 116 at p. 118; Kyrmizoudes v. The Ship "Plutipoupolis"

(1978)1 C.L.R. 526; Westport [1965] 2 All E.R. 167: Myrto [1977] 2 LI. L.R. 243; Scheepswarf Bodcwes-Gruno v. The Ship ''Algazera"

(1980)1 C.L.R. 404. Application. Application by plaintiffs for the sale pendente lite of the ship "Maria". E. Montanios with P. Panayi (Miss), for applicants. M. E/iades with A. Skordis, for the respondent ship. Chr. Christophides, for the intervener. Cur. adv. vult. SAVVIDES J. read the following judgment. This is an appli­ cation for the sale pendente lite of the defendant ship which is under arrest and that the proceeds of the sale be paid into 20 Court. The application was filed on the 23rd June, 1982, but due to numerous other applications which were filed in this action, and had to be dealt with before this application, the hearing of this application was delayed. 25 30 The defendant ship was arrested on the 26th February, 1982 by a warrant of arrest in this action, the writ of summons in which was issued onthesameday. The said order was eventual­ ly made absolute, pending the final determination of the action, and the ship is still under arrest, as the owners of the defendant ship and/orany persons interested in it,failed tobail theship out. The applicants are the plaintiffs in the above action and their claim is for U.S. Dollars 7,202,465, plus interest due under a loan agreement and/or mortgage of the defendant ship, for her possession under the terms of the mortgage and her appraise35 ment and sale. The facts relied upon in support of the application, are set 775 Saw ides J. Williams and Glyn's Bank Ltd v. Ship"Maria"

(1983)out in the affidavit sworn by Persefoni Panayi, an advocate in the law firm of advocates for plaintiffs, and are briefly as follows: A loan of U.S. Dollars 10,000,000 was made by plaintiffs to Ulysses Shipping Agency secured by mortgage on the defen­ dant ship given by Laertis Shipping Enterprises (Special Shipp- 5 ing) S.Α., owners of thedefendant ship. Underthe terms of the said guarantee and/or mortgage, in the event of default of pay­ ment as per terms of the loan agreement, the said loan together with all interest, commission and other sums payable would become repayable upon demand and the applicants would be 10 entitled to take possession of the defendant ship as well as of her management and control. As there was default of payment, the owners of the defendant ship were called to pay the outstanding balance, which they failed to do, and the present action, in rem, was instituted against the defendant ship. An action in per- 15 sonam was also brought against the owners in England and a judgment was obtained against them which has notbeen satisfied. A photocopy of the said judgment was attached to the affidavit. There were outstanding claims against the defendant ship for about U.S. Dollars 200,000 for wages due to the master, officers 20 and crew of the defendant ship. After the arrest of the ship,the applicants, by leave of the Court, paid off and repatriated ten members of the crew and were subrogated to their rights. In this respect, the applicants paid U.S. Dollars 62,134.32 and about £1,500.- for their repatriation expenses. The remaining 25 members of the crew had instituted actions Nos. 73- 85/82 and obtained judgments on 24.5.82 for a total of Greek Drachmas 9,094,697, together with legal interest and £4,300.- costs, with stay of execution at the request of the owners till 15.6.

1. On 8.6.82 the master and nine crew members filed against the de- 30 fendant ship Admiralty Actions 124 - 133/82, claiming wages and other benefits accruing after 24.5.
2. The expenses for the arrest of the ship are borne by the Marshal by money provided by the applicants. It is the allegation contained in the said affidavit that the current value of the defendant ship is U.S. 35 Dollars 3,000,000 and that its value is deteriorating due to the fact that it remains idle and it is exposed to risks of being se­ riously damaged as it is anchored outside the harbour and changing weather conditions will render its safety more pre­ carious. 40 776 1 C.L.H. Williamsand Glyn's Bank Ltd v.Ship "Maria" Savvides J. The application was opposed both on behalf of the ship and also on behalf of the intervener Martin Mosvold and/or his Nominee. By their opposition counsel for the defendant ship disputethevalidity ofthemortgageand anyconsiderationgiven 5 in that respect, and allege that the Court has nojurisdiction to hearandgivejudgment onclaimsbasedontheallegedloanand/ or guarantee. Furthermore, they allege that the judgments in favour of the crew and all other claims are small, taking into consideration the value of the ship. They further deny that 10 there is any imminent danger for the safety of the ship or that her condition is deteriorating, as proper measures are being taken bythe Marshal for her maintenance and that this isnot a proper casefor the sale of the ship pendente lite as irreparable loss may be caused to the ship. 15- Counsel for the intervener by his opposition, disputes that applicants are entitled to the prayer as per application, and, also, disputes the mortgage upon which the action is based as beingultra vires the Articles of Association of theowningcompany and contrary to a written agreement dated 12th May, 20
3. It isalleged, furthermore, that thejudgment in England against the owner of the ship constitutes a resjudicata in the case and, therefore, the applicants are not entitled to pursue their claim. It isfurther alleged that by reason of the conduct oftheplaintiffs, hugelosseshaveaccrued duetolossofearnings 25 during the wrongful detention of the ship and that the ship should be released forthwith and that the continuance of the arrest amounts to wrongful detention on the part of the applicants. At.the hearing of thisapplication a preliminary objection was 30 raised by counsel for the ship that the amount which was fixed by the Court for bailing the ship out, wasexcessive and that a prerequisite for an application for the sale of a ship pendente liteisthat thedefendant shipisunableto bail herself out. The amount of C£3,253,000 which wasfixed by the Court to enable 35 thedefendant shiptobailout, wasbyfar inexcessoftheactual valueoftheshipwhichisintheregionof U.S.Dollars1,700,000 to 3,000;000, as it appearsfrom thevarious affidavits whichare in the file of the Court. 777 Savvides J. Williams andGlyn's Bank Ltd v.Ship"Maria"

(1983)After short argument on this issue,counsel for the applicants consented that the bail should be reduced to U.S. Dollars 3,000,000 instead of theoriginal amount fixed bythe Court and that if such bail was provided, the ship could be released. As a result, the original order was amended and the amount of 5 U.S. Dollars 3,000,000 was substituted to the original amount and, inorder that achancecouldbegiventothecounselfor the defendant ship to consider the possibility of bailing her out, in reservingjudgmentinthisapplication Ipointedouttotheparties that Iwasgoingtodelaythedeliveryofjudgmentfor four weeks, 10 sothat if theamount of thebail, as reduced, wassecured in the meantime and the ship wasbailed out, nouseful purpose would be served by deliveringjudgment. No such bail has been provided till today, and the ship is still under arrest. As mentioned earlier, the ship was arrested on the 26th 15 February, 1982. When the order for the arrest of the shipwas made, the applicants inaddition toa security bywayof abond, weredirectedtodepositthesumof£300.-for anyexpenseswhich might havebeenincurred bytheMarshal inconnection withthe custody of theship,subject tothe condition that this summight 20 be increased. Also, they were directed to lodge in Court any further amount that the Registrar of this Court might ask the applicants to do with regard to the arrest, and failure by the applicants tocomplywithinthreedaysfrom demand, the order of arrest was to be discharged. 25 On the 6th March, 1982the Marshal informed the Court by a written application, that the ship had to be supplied with a quantity of at least 10tonsoffuel, sothat theenginesmight be kept in a working condition to faceany emergencydue to the fact that she was exposed to danger as a result of weather 30 changes. Also, that food supplies had to be provided by him to the 23 members of the crew. When such application came to be dealt with by the Court, counsel for the defendant ship joined the application of the Marshal and stressed the fact that the defendant ship was in urgent need of regular supplies of 35 fuel to face any emergencies and also that the crew of the ship wasin need of regular supplies and laundry and contended that the applicants who had applied for the warrant of arrest of the 778 1 C.L.R. Williams andGlyn's Bank Ltd v.Ship"Maria" Savvides J. ship, should provide the Marshal with the necessary funds. The applicants undertook to make available to the Marshal whatever funds were required for the supply of fuel and pro5 visions for the crew and as a result an order was made, adding the following condition to the already existing condition of the warrant of arrest: 10 "The warrant of arrest already issued will be subject to the further condition that plaintiffs will undertake to make available to the Marshal any necessary funds for the regular supply ofdiesel to the said ship and alsofor the supply of any necessary provisions and laundry for the crew." By consent, it was also directed that for safety purposes the ship be removed from Larnaca to Limassol port, where she lies 15 eversince. The applicants paid for the supply of the fuel provided by the Marshal and have continued till today paying for the supply of fuel, the value of which is well in the region of thousands of pounds. 20 As the number of the members of the crew was excessive and their wages which had priority over applicants' claim, were draining any assets which might be available for payment of debts, the applicants, with the consent of the Master of the ship and her owners, applied for an order authorising them topay off 25 and repatriate 10members of the crew and be subrogated to all their rights and remedies. Such application was granted and the applicants negotiated and paid the claimsand repatriation expenses to 10out of the 23 members of the crew. What was paid by plaintiffs, amounted to U.S. Dollars 62,134.32 in re30 spect of wages, leave, overtime and compensation due to them and about £1,500for their repatriation expenses. Such amounts were claimed by applicants against the defendant ship by Admiralty Action No. 177/82 in whichjudgment was entered in their favour for the above sums, plus interest thereon. (See Williams 35 & Glyn's Bank v. Ship "MARIA"

(1983)1 C.L.R. 124. An appeal against suchjudgment ispendingbefore theFullBench).*The remaining members of the crew brought individual • Now reported in

(1983)1 C.L.R. 706. 779 Savvides J. WilliamsandGlyn's Bank Ltd v.Ship"Maria"

(1983)actionsagainsttheshipunderNos.73-85/82inwhichjudgments weregiven intheir favour for what wasdueto them till24.5.82, amounting to Greek Drachmas 9,094,697 plus £4,300 costs. As nothing waspaid tothem, either in respect of thejudgments or inrespect of theirVages after 24.5.82,they alsofiled Actions 5 124/82 - 133/82, claiming wages and other benefits accruing after 24.5.82, inwhich they obtainedjudgments for considerable additional amounts, and proceeded to execute the former judgments in their favour by the issue of writs of movables against thedefendant ship, theexecution of which isin thepro- 10 cess of materialising. In the meantime, a number of caveats had been entered against the release of the ship by a number of other creditors. Also, leavewasgranted to a certain Martin Mosvoldand/orhis Nominee to intervene and defend the action as having an in- 15 terest in the defendant ship. After several applications by the Marshal to the Court that additional funds had to be made available for maintaining the ship under arrest, the applicants, in compliance with previous directions, provided the Marshal and still continue to provide 20 him with all necessary funds to face such expenditure. On the 18thJune, 1982the Marshal informed the Court that, asmost ofthe 13 membersofthecrewwhichremained onboard had left, he had to provide and maintain a skeleton crew as follows: (

1. a)A master at the monthly salary of £900.- as from 1.6.82. (
2. b)An assistant master at the monthly salary of £425.as from 3.6.82. (
3. c)The first engineer who continued serving on the ship 30 and whose salary was paid by the plaintiffs directly. (
4. d)Thecook andfour membersof theold crewwhoconsentedtocontinuerenderingtheirservices,and 780 25 1 C.L.R. WilliamsandGlyn'sBankLtdv.Ship"Maria" Savvides J (
5. e)an electrician at the monthly salary of £400 per month, andapplied for theapproval bytheCourt oftheactiontakenby him and, also, for the necessary funds to be made available to 5 him to pay their wages. Bya separate application of the same day,heappliedthatnecessaryfunds beprovidedfor thepayment of repatriation expenses for those members of the crew which were.expatriated by him and which amounted to £652. The applications of the Marshal weredealt with on 27th July, 1982, Hi whencounsel for allpartiesconcerned (theship,theplaintiffs in theaction, theintervener Mosvold and themembers of thecrew concerned) stated that there was no dispute as to what was claimed by the Marshal and they all agreed that the Marshal should employ such skeleton crew and pay their wages as well 15 as the other expenses out of funds to beprovided by applicants and suchexpenses betreated as Marshal's expenses; directions were made by the Court accordingly, to which applicants have complied and provided the necessary funds. Onthe 11thOctober, 1982, after anapplication bytheMarshal 20 and with the consent of the parties, the employment of an additional number of three members to the skeleton crew at a monthly cost of £1,000.- and also the carrying out of certain necessary repairs to the engines of the ship were approved and and applicants provided the necessary funds. 25 Anumber ofsimilar applications weremade at varioustimes, either for necessary repairsorexpenses aswellasfor anamount of £550.- for expenses incurred by him for the appraisement of the shipby an order oftheCourt inAdmiralty Action No.177/ 82,which weregranted and for their payment funds weremade 30 available by the applicants. The monthly wages and provisions for the crew which are paid by the Marshal out of money provided by the applicants, exceed the sum of £5,000.- per month. According to a letter of the Marshal to the Registrar of this Court for the month of 35 Maytheyamounted to£5,609.210mils. Themoneysoprovided areinadditiontothefunds madeavailablebytheapplicants for payment of other demands as hereinabove explained, and,also, 781 Savvides J. Williams andGlyn's Bank Ltd v. Ship "Maria"

(1983)for theinsurancepremiumsoftheship. Themoney soprovided byapplicantssincethearrestof theshiptilltodayfor wagesand repatriation expenses of crewmembers, supply of fuel,"payment of wages and suppliesto the skeleton crew, insurance and other expenses, have already.exceeded £100,000.- and continue to accumulate byan additional amount ofover£5,000.-per month. 5 Counsel for the applicants maintained that the value of the ship which, according to an appraisement made by an expert appointed by the Marshal on the directions of the Court in Admiralty Action No. 177/82, a record about which appears in 10 thefile in this action, is U.S.Dollars 1,750,000, isnot sufficient to cover the claims against her and if she continues to remain under arrest, the monthly expenses for keepingher under arrest are so huge asto drain continuously thefund availablefor payment of any debts withtheresult that theonlypersonswhowill 15 suffer in the end will be the applicants whose claim runs after the claims of the crew and the Marshal's expenses which have priority over their claim. On the other hand, the defendant ship has nothing to lose by the arrest remaining indefinite, as her owners have never contributed anything to the Marshal for 20 maintaining a skeleton crew on the ship or for other necessary expenses for the safe keeping of the ship. ThepresentapplicationisbasedontheAdmiraltyJurisdiction rules 74- 77,203,204,207-212 and 237 and on the inherent jurisdiction andpowersoftheCourt. Rule74,readsasfollows: 25 "It shall be lawful for the Court or Judge, either before or after final judgment, on the application of any party and either with or without notice to any other party, by its order to appoint the marshal of the Court or any other person orpersonsto appraiseany property under thearrest 30 of the Court, or to sell any such property either with or without appraisement, or to remove or inspect and report on any such property or to discharge any cargo under arrest on board ship." As pointed out by A. Loizou, J. in Almyr MaritimeS.A. v. 35 The Cargo on BoardtheShip'Almyrta'

(1975)1 C.L.R. 116, 118, our rules 74- 77 correspond, to, inter alia, the old Order 50, 782 1 C.L.R. Williams and Glyn's Bank Ltd v. Ship "Maria" Sav\ides J. rule 2, now Order 29,rule 4, as well as to the old Order 51,rules 14- 16,now Order 75, rules 12- 23of the Rules of the Supreme Court in England. The question of appraisement and sale of property pendente 5 lite has been considered by this Court on several occasions and thecircumstances under which such an order may be made, have been expounded. In some of these cases the application was made ex-parte and was unopposed and in other cases it was opposed. In Almyr Maritime S.A. (supra) A. Loizou, J. in 10 dealing with an ex-parte application for the sale pendente lite of the cargo under arrest, granted the application and'had this to say at pages 119 - 120: 15 20 "In cases as the present one, the paramount consideration is to preserve the goods or their equivalent in money, for the benefit of theperson or persons who areultimately to be found to be entitled to them, rather than to preserve the goods themselves but completely perished. In my opinion, it will be in the interest of all concerned to make an order for their sale but not without appraisement, the purpose of which is to prevent the sale of the res on too low a price." In Kyrmizoudes v. Ship "Philipoupolis"

(1978)I C.L.R. 526 in which the application for sale of the ship pendente lite was strongly opposed, Triantafyllides, P. after reviewing the legal principles as exposed in a number of cases including the Almyr 25 . Maritime S.A. and after expounding on the Westport [1965] 2 All E.R., 167 and The Myrto [1977] 2 Ll.L.R. 243 and with the special circumstances of the case in mind, concluded as follows at pages 536, 537: 30 35 "'Having taken into consideration all relevant aspects of this case and, in particular, the situation in which the defendant ship and its cargo are exposed to grave risks, as such situation is described in the report of the Marshal dated September 26, 1978,the fact that it emerges from the material before me that the value of the ship isnot sufficient to satisfy theclaimsmade against her and suchvaluemay be diminished considerably if the ship continues to be under arrestin thecircumstancesdescribed inthesaid report ofthe 783 SavvidesJ. WilliamsandGlyn'sBankLtdv.Ship"Maria"

(1983)Marshal, and that the expenses entailed by the ship's continued arrest will continue to amount to the prejudice of all those who have claims against such ship, Ihave decided that I should grant the application of the plaintiff for an order for the sale of theship pendente lite, because I am of 5 theopinion that such acourseisthe better one for theprotection of the interests not only of the plaintiff, and of all the others who have claims against the defendant ship, but, also, of the owners of the ship, too." Reference to TheMyrto case isalso made in the Scheepswerf 10 Bodewes-Gruno v. TheShip "Algazera"

(1980)1 C.L.R. 404. In that case, the application for appraisement and sale pendente lite was also hotly contested and Demetriades J. after consideringthe legal principles asemanating in The Myrtocase,concluded as follows at pages 409, 410: 15 "About safety, the Marshal told the Court that though the vesselisanchored inthenewport of Limassol with both its anchors dropped, it is exposed to weather conditions and todangers ofcollisionwiththejettyand with shipsentering or goingout of theharbour. Further, thisdanger, hesaid, 20 isbecominggreater dueto lack of fuel and the unreadiness of theengines of the ship. Regarding the condition of the ship,theMarshal saidthat asaresultoflackofmaintenance ofthehullduetotheabsenceof crewtomaintainit,thehull and other parts of the vessel are suffering from corrosion 25 which is becoming worse due to her immobility and electrolisis. The engines and the generators, which have been inactive sinceJanuary 1980 as a result of lack of bankers as wellas spare parts, also deteriorate. I shall not enter into the details of the evidence of the 30 Marshal ontheabovesubjects, as Iconsider it unnecessary, but inmyviewtheabovenutshellofhisevidenceshowsthat the condition of the ship is most unsatisfactory, isdeteriorating and her value diminishes from day to day. Theabovegrounds,coupledwith the lack of interest on 35 the part of the owners of the ship to bail her out, their 784 1 C.L.R. Williams andGlyn's Bank Ltd v.Ship "Maria" Savvides J. failure to pay the wages of the crew or to keep a skeleton crewtomaintainher, are, inmymind, good reasonsfor the making of the order applied for." In TheMyrtocase (supra) to which reference is made in the 5 lasttwocases,BrandonJ.hadthistosayatpp.260,261: 10 15 20 25 30 35 "The question whether an order for the appraisement and sale of a ship under arrest in an action in rem should be made pendente lite arises normally only in a case where there isa default ofappearance or defence. In such acase it has been a common practice for the Court to make such an order on the application of the plaintiffs on the ground that, unless such order ismade, the security for their claim will be diminished by the continuing costs of maintaining the arrest, to the disadvantage of all those interested in the ship, including, if they have any residual interest, the defendants themselves. Where defendants to an action in rem against a ship appear inthe action with the intention ofdefending it, they almost invariably obtain the release of the ship from arrest by giving bail or providing other security for the claim satisfactory to the plaintiffs. For this reason there appears to be no reported case in which the Court has had to consider in what circumstances it would be right to make an order for appraisement and sale of a shippendente lite ina defended case. Itwascontendedfor thebankthat theCourtshouldmake the orderaskedfor on theground that,iftheship remained under arrest without being sold pending the trial of the action, the value of the security obtained by the bank through arresting her would be progressively diminished by the continuing costs of maintaining her under arrest. Suchdiminution would beaparticularhardshiptothebank in this case because theclaim greatly exceeded the value cf the ship. Asregards thecosts of maintaining thearrest it wassaid that these included the following: berth charges; crews* 785 Savvides J. Williams andGljn's Bank Ltd v. Ship"Maria"

(1983)wages; supply of oil bunkers; supply of water; supply of food and other necessaries; and insurance. The owners were paying for none of these things, and they would havetobepaidfor either bytheAdmiralty Marshal, who was entitled to be put in funds or reimbursed by the 5 bank, or by the bank direct 1accept that the Court should not make an order for the appraisement and sale of a ship pendente lite except for good reason, and thiswhether theactionisdefended ornot, 1accept further that where the action is defended and the 10 defendants oppose the making of such an order, the Court should examine more critically than it would normally do inadefault action thequestion whethergood reasonfor the makingofanorderexistsor not. Idonotaccept,however, the contention put forward for the owners, that the cir- 15 cumstance that, unless a sale is ordered, heavy and continuing costs of maintaining the arrest will be incurred over a long period, with consequent substantial diminution inthevalueoftheplaintiffs' securityfor theirclaim, cannot, as a matter of law, constitute a good reason for ordering a 20 sale. On the contrary, I am of opinion that it can and often will do so. ThisviewseemstometoaccordwiththetermsofR.S.C., O. 29, r. 4, which authorizes an interim sale of property not only because it is of a perishable nature, or likely to 25 deteriorate if kept, but for 'any other good reason'. On the footing that the Court's power to make an order for salependente liteis,asamatter ofprinciple,exercisable ontheground discussed above,Ihavenodoubt that, onthe facts of this case,theCourt shouldexerciseitsdiscretionto 30 make such order. It would, in my view, be unreasonable to keep the ship under arrest at great expense for seven months or more, withtheresult that, ifthebank succeeded on their claim, the amount of their recovery would be reduced by the costs incurred. If the owners were prepared 35 to bear or contribute to those costs for the time being in order to prevent a sale, defferent considerations might 786 1C.L.R. Williams andGlyn's BankLtd v.Ship" M a r i a " SavvidesJ . apply. Not surprisingly, however, no offer to do anything of that kind has been made by the owners." In the Westport (supra) though the total claims against the ship were found that they might not exceed the fund when the 5 ship is sold, nevertheless, the order was made and Hewson J. said: 10 15 20 "In the circumstances, as the expenses of arrest are continuing, the defendants move the court to order appraisement and sale of their ship in the interests of all parties. I am informed that there are two other claimants against the ship, one for wages and one for a mortgage, who are aware of these proceedings, and also that there are three caveats entered against the release. 1 have further been told that the total claims against this ship may not exceed the fund when the ship is sold. If that is,so, of course, the balance will be held for the defendants, it seems to me that in the circumstances of this case,it is proper that the Court, at the instigation of the defendants, should order appraisement and sale and, in those circumstances, I so order." In Halsbury's Laws of England, 4th Edition, vol. 1p. 278, para. 434 under the heading, "Appraisement and Sale" it reads: 25 30 "Where property under the arrest of the Court is deteriorating or for good reason should besold before judgment, the judge may, on motion, order the property to be forthwith appraised and sold, and the proceeds brought into Court. All claims against the property are thereupon transferred to the fund in Court, which will be paid out only after the claims and their respective priorities have been adjudicated. The order may deal with the same ancillary matters, and the subsequent procedure is the same, as in the case of sale after judgment." • In the Admiralty Practice, Vol. 1in the British Shipping Laws Series, page 122, paragraph 276, we read: 35 "Typical grounds for an application are that a ship is 787 Savvides J. Williams and Glyn's Bank Ltd v. Ship"Maria"

(1983)costing a disproportionate amount in daily expenses, e.g., of dock dues, shipkeepers, etc., or that she is deteriorating owing to being under arrest for a long period, or that a cargo is perishable." In Roscoe Admiralty Practice, 5th Edition, at page 351,in a note to Order 50, rule 2, the following appears 5 "Under this rule it isthat the Court will order the saleofa vessel which remains under arrest and against which expenses are accumulating, and which is deteriorating, if in the interests ofallparties a speedy salewould appear to be 10 desirable: TheLouisa

(1905), Fo. 307; TheCarl Hindric

(1903), Fo. 468; The Reigate

(1905), Fo. 309." Thepower ofthe Court toorder property to besoldpendente lite and theproceeds paid into Court to abide the result of the litigation, isderivedfrom itsinherentjurisdiction and appearsto 15 be supplemented and/or its exercise regulated by the Rules of Court. (See The Myrto case (supra)). Itisclearfrom theaboveauthoritiesthatthough interlocutory orders for appraisement and sale pendente lite of a ship under arrest are exceptional, nevertheless, they can be made if such 20 circumstances existthatjustify themaking of suchorder. Also, under the English R.S.C.,0.29, r.4,an interim saleofproperty may be made not only because property is likely to deteriorate but for "any other good reason". In thepresent casetheapplicants like in The Myrtocasehave 25 contended that the Court should make the order asked for, on the ground that, ifthe shipremained under arrest without being sold pending the trial of the action, the value of the security obtained by them through arrestingher, wouldbeprogressively diminished by the continuing costs of maintaining her 30 arrest and that such diminution would be a particular hardship to the applicants, because their claim greatly exceeds the value of the ship. I consider such argument very sound, especially having regard to the fact that theapplicants since arrest till the hearing of this appUcation, have paid money in the region of 35 £100,000.- for crew claims,insurance,Marshal and other expen788 1 C.L.R. Williams andGlyn's Bank Ltdv.Ship"Maria" Savvides J. ses,asalreadyexplainedformaintainingtheshipunderarrestand continue to pay sums exceeding £5,000.- per month for such purpose, in addition to insurance premiums and fuel. The owners of thedefendant ship have never been prepared to bear 5 or contribute to those costs, but, on thecontrary, their attitude all along, was that the applicants should be burdened till the determination of the action. Furthermore, the prolonged stay of the ship under arrest is causing the defendant ship deteriorate. On appraisement of 10 the ship carried out by the Marshal six months ago, in another action, her valuewasfixed at U.S.Dollars 1,750,000, asagainst her value at the time of her arrest which was given at U.S. Dollars 3,000,000. The ship also being kept under arrest outside,the port, isexposed to graverisksdue to changing weather 15 conditions. I wish also to mention that the onwers had the opportunity of bailingthe ship out, especially in viewofthefact that the bail was reduced from £3,253,000.- to U.S. Dollars 3,000,000, which they failed to do. It has been submitted by counsel for the defendant ship shat 20 the hearing of the action has been fixed sometime inthe near future and, therefore, the expenses of keeping the ship under arrest will not be considerably increased in the meantime. It iscorrect that thehearing wasfixed for five days next November. From indications,however, which Ihad from counsel 25 on both sides, the hearing is not likely to be concluded in less than ten days which means that the five days allocated for the hearing in November will not be sufficient, and the further hearing will have to be adjourned to a future time. But even after the conclusion of the hearing, there is always the right of 30 appeal, which will prolong thefinal determination of the action for quite a long time infuture. Therefore, if theorder for sale isnotmade, theapplicants, whoseclaim byfar exceedsthevalue oftheshipwhichinaddition isburdened withanumber ofother judgments and claims ranking in priority to the claims of the 35 applicants, will have to bear great expense for providing the Marshal with the necessary funds to keep the ship under arrest till the final determination of this action. With the above in mind, I have come to the conclusion that besides the fact that the defendant ship is likelytodeteriorate, 789 Savvides J. Williams and Glyn's Bank Ltd v.Ship "Maria"

(1983)there are a number of other good reasons, as explained above, why an order for the sale of the ship pendente lite should be made. As the appraisement of the ship which has already been carried out in another action was effected more than 6 months 5 ago,IshalldirectanewappraisementofhervaluebytheMarshal in her present condition. In the result, I make an order, (a) for thesale oftheshippendente liteafter appraisement of her value by the Marshal and 10 (b) that the proceeds of the sale be brought into Court. Costs of this application against the respondents. Applicationgranted with costs. 790