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(1984)1984 March 2 [SAVVIOES. J.l LOUIS CONSTANTiNfDFS CO. LTD.. Plaintiffs. THE SHIP "MIGHTY SPIRIT". NOW LYfNG IN THE PORT OF LIMASSOL. Defendants. {Admiralty Action ΛΌ.388/83». idmiralty—Practice -Judgment against slup—Cargo on board— Owners thereof, whocould be traced,notified of intended sale of ship and given reasonable notice to discharge their cargo—Un­ loading of part of the cargoby these owners creating problems to stability of the ship—Cargo consisting of perishable goods—Dired ions to Marshal authorising him to discharge cargowhose owners could not be traced. 5 On ihe 27th January, 1984 the plaintiff in this action obtained judgment against the defendant ship for £4,080.-. A cargo of 6.584 M/T of thick peas and lentils was loaded on.the ship and 10 when this action was brought the said cargo was still laden on her. As thejudgment remained unsatisfied the plaintiff filed an application praying for (
  1. a)an order for the appraisement and sale of the defendant ship. and. (
  2. b)directions lo ihe Marshal as to the discharge of the cargo. Such application was granted in respect of par» (
  3. a)only but was dismissed in so far as part (
  4. b)was concerned in view of the fact that The Marshal could not be directed to unload the cargo 20 once there was no order for the sale of the ship till that date and without the cargo owners being notified of his intention to sell the ship and give them reasonable time to discharge their cargo before applying for directions for its discharge and probable 272 15 I C.L.K. Constuntfnldes Co. Ltd. κ Ship "Mighty Spirit" sale for reimbursing the costs of discharge, transportationand storage. 5 10 Following suchdecision,the Marshalnotified by telex thoseof theownerswhomhecouidiraceasthereweresomeownerswhose addresses'he couldnotsecure and,therefore, hecouldnot notify them. Until 24.2.84a quantity of 2,700 tonsof cargo hadbeen unloaded andcollected by order of theCourt ontheapplication of its owners andthere still remainedontheship the rest of the cargo, the owners of pan of which have authorized agents in Cyprustounload suchpatt. Theunloadingof part of thecargo hascreatedproblems to thestability ofthe ship which had tobe removed out of the port and anchored out in the open sea. Upon an application by the Marshal whereby he applied for directions: 15 "(
  5. a)authorizing him to discharge the remaining cargo on the defendant ship: (
  6. b)for securing such expenses and that such expenses be treated as Marshal's expenses, and; 20 25 30 35 (
  7. c)as tothemannerof dealing with theaforesaid cargoon board the defendant ship". Held, thatif cargo interestsdonot takedelivery of their cargo vwihin the time specified in a direction to the Marshal, the Marshal should discharge andsellthecargo reimbursing himself from the proceeds of sale of the cargo; that in the special circumstances of this case, where the cargo consists of perishable goods and the unloading of pari of the cargo has affected its stability andhas exposed theshiptoperils,thisCourtis satisfied that the Marshal has exhausted all possibleefforts to protectthe cargo owners, whose addresses could not be traced,and he has made his intention known to all those cargo owners whom he couldtraceabout his intention-tounloadthecargo, andthe fact thatsomeoftheownen couldnot betraced,isnota matterwhich may be thecause of further delay at therisk ofthe ship andin­ creaseindefinitely theMarshal's expenses ontheshipby thedelay of her sale; that il was proper for the Marshal to have applied for directionsinthis case both in respect of theunloadingof the cargo and for therecovery of the expenses for any action hemay 273 Cimrtantinidcs Co. Ltd. \. Ship "Might) Spirit"
(1984)he instructed to take: accordingly the application must be granted subject to terms—pp. 277-278 post. Application granted. C;ises referred to: Unity [1909] Sh. Go:.: 5 Baring ShippingCo. v. Ship 'Eurotrader"
(1978)I C.L.R. 93. Application. Application by the Marshal of this Court for an order authorizinghim to discharge the remaining cargo on board the defendant ship. 10 Applicant, Marshal of this Court, present. A. d'orghatljis for A. Neocleous, for plaintiffs judgmentcreditors. A. Georghadjis for J. Mwronicolas, for some of the cargo owners. 15 St. McBride. for the mortgagees of the defendant ship. Cur. adv. vult. SAVVIDESJ. read the following decision. This is an application by the Marshal of this Court whereby he applies for directions: (
  1. a)authorizing him to discharge the remaining cargo on the defendant ship, (
  2. b)for securing such expenses and that such expenses be treated as Marshal's expsnsss, and, (
  3. c)as to the manner of dealing with the aforesaid cargo 25 on board the defendant ship. The facts material to the present application, as they appear from the record of the proceedings, are as follows: The plaintiff in this action obtained judgment on 27.1.1984 against the defendant ship for £4,080.00. A cargo of about 30 6,584 M/T of chick peas and lentils were loaded on the said ship before its departure from Mersin of Turkey and at the material time when the action was brought and a warrant of arrest was issued against the defendant ship, the said cargo was still laden on her. The judgment remained unsatisfied 35 274 20 I C.L.R. Constantinides Co. Ltd. v. Ship "Mighty Spirit" Sat*ides ,1. and the plaintiff judgment-creditor filed an application on 2.2.1984 praying for: (
  4. a)anorderfor theappraisement and saleof the defendant ship, and, 5 (
  5. b)directions to theAdmiralty Marshal as to the discharge of the cargo laden on board this defendant ship. Such application was granted in respect of part (
  6. a)only but wasdismissed in so far as part (
  7. b)was concerned in view of the fact that the Marshal could not be directed to unload the cargo 10 once there was no order for the sale of the ship till that date and without the cargo owners bsing notified of his intention to sell the ship and give them reasonable time to discharge then*cargo before applying for directions for its discharge and probable sale for reimbursing the co^ts of discharge, transpoi15 tation and storage. Following such decision, the Maishal notified by telex those of the owners whom he could trace as there were some ownsrs whose addresses he could not secure and, therefore, he could not notify them. According to the facts set out in his appli20 cation, till 24.2.1984 a quantity of 2,700 tons of cargo had been unloaded and collected by order of the Court on the application of its owners and there still remains on the ship the rest of the cargo, the owners of part of which have authorized agents in Cyprus to unload suchpart. The unloading of part of the caigo 25 has created problems to the stability of the ship which had to be removed out of the port and anchored out in the open sea. Counsel appearing for the judgment-creditors in the above action and for the owners of part of the cargo, did not object to the application and, in fact, joined the application, stressing 30 the fact that the further delay in the unloading of the vessel would, on the one hand, imperil the ship and on the other hand, the sale of the ship would be delayed with the result that the costs of the crew and maintenance of the ship till the date of the sale will considerably increase. Counsel also submitted 35 that the costs of the unloading and storing of the cargo, which will not be claimed, may be covered by the sale of such cargo, in the first placs, and, if any amount so incuned isnot covered, then they may be considered as Marshal's expenses and be paid out of the proceeds of the sale of the ship. 275 Simides J. Costantiotdes Co. ltd. v. Ship "Mighty Spirit"
(1984)Counsel appearing for the mortgage;s of the ship stated that, though he wasintending to raise an objection to an order being made totheeffectthat incasetheproceedsofthesaleofthe cargo do not cover the expenses of the Marshal for unloading andstoringsametillthedateofthesale,thenanybalanceshould 5 be considered as Marshal's expenses and be paid out of the proceeds of the sale of theship,nevertheless,having taken into consideration the fact that by opposing this application on this ground a delay would have been caused to the unloading of the ship and its subsequent sale and, also, for the purpose of 10 expediting itssale, he shall raise no objection to an order being made in the terms applied for. Thcieis authority that,if cargo interestsdo not take delivery of their cargo within the timespecified in a direction to the Marshal, the Marshal should discharge and sell the cargo reim- 15 bursing himself from the proceeds of sale of the cargo. (See the Unity
(1909)Sh. Gaz.) This proposition has been adopted by this Court in Baring ShippingCo. v. Ship "Eurofrader"
(1978)1 C.L.R. 93. The present application has not been contested and, from .20 what appears from the statements made by all Counsel concerned, there is no objection to the proposition that, if the proceeds of the sale will not cover the Marshal's expenses for unloading transportation and storage, then the balance may be treated as Marshal's expenses payable out of the proceeds 25 of the sale of the ship. As already mentioned, directionshave beenmade for the unloading of part of the cargo which should not be affected by the outcome of this application. In the special circumstances of this case, where the cargo consists of perishable goods and the unloading of part of the 30 cargohas affected itsstabilityandhasexposedtheshiptoperils, Iamsatisfied that theMarshalhasexhausted all possible efforts to protect the cargo owners, whose addresses could not be traced, and he has madehisintention known to all those cargo owners whomhe could trace about his intention to unload the 35 cargo,and thefact that someoftheownerscouldnot betraced, is not a matter which may be the cause of further delay at the risk of the ship and increase indefinitely the Marshal's expenses 276 I CI-Η. Constantinides Co. Ltd. v. Ship "Mighty Spirit" Simides J. on theship by thedelay ofher sale. Itwas proper for theMar­ shal to have applied for directions in this case both in respect oftheunloadingofthecargo andfor therecovery of theexpenses for any action he may be instructed to take. 5 10 15 20 25 30 35 For the above reasons the following directions arc given to the Marshal: (
  1. a)That the remaining cargo on board the defendant ship—other than ca^go belonging to ownets for which orders have already been made for its unloading and which should be complied with irrespective of this direction—be discharged, surveyed, stored, appraised the sold by the Marshal. (
  2. b)The Marshalathisdiscretion,andprovided suchcourse is possible, to allow cargo owneis who m compliance with the telexes sent to them by him have authorized agents to unload their cargo and store it at their ex­ pense, to proceed accordingly, provided that any expenses likely to be incurred by the Marshal will be paid by them in proportion to the value of their cargo to the remaining of the unloaded cargo. (
  3. c)That the costs to be incurred by the Marshal under paragraph (
  4. a)hereinabove to be paid, in the first place, out of the proceeds of the sale of the cargo and that any amount so incurred and not covered by the sale, to be considered as Marshal's expenses and be paid out of the proceeds of the sale of the ship. Id) With regard to the discharge and storage sale of the cargo hereinabove ordered, the Matshal should secure the lowestand most favourable terms, and,if any problem arises in relation thereto,the Marshal may apply to this Court for further directions. (
  5. e)The sale of the cargo to be effected by public auction or private treaty but in the latter case the sanction of the Court is necessary and directions should be applied for. (
  6. f)Thesals of the cargo to be postponed for 21 days to give a chance to the owners of any unclaimed part thereof to collect same provided that before the 277 •Guides. .1- Cnnstantinldcs Co. Ltd. v. Ship "Mighty Spirit"
(1984)Maishal allows them to do so, they must produce to him, in addition to the Bill of Lading, mate's certificates indicating the actual quantity loaded for their account on the defendant ship,and also by reimbursing the Marshal of their share in theexpenses of unloading, storing and any other expenses incurred by th; Marshal in such respect. 5 Orderaccordingly. 278

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