(1984)1984 September 25 [PIKIS, }.] ΗΟΤΗί MEHANGA SINGH. Plaintiff. v. F/B ALISUR BLANCO, Defendants. (Admiralty Action No. 156/84). Admiralty—Arrest oj ship—Discharge of—Discretion oj the Cowt— Principles en which it is exercised—Terms oj release of ship— Amount of security given for the release excessive and unjustified in the circumstances of tlvs case—Reduced—Rule 60 of the Cyyru·; Admiralty Jurisdiction Order.
- In an action against the defendant ship for wages due and damages for breach of contract of employment the Court, on the application of the plaintiff, made an order for the arresl of the ship, accompanied by directions for her release upon security being given for an amount of US dollars 8,
- Subsequently the defendants moved the Court to discharge the order of arrest of the ship and the security given to bail it out, or to reduce the amount lodged as security. The motion was mainly based on the ground that the contract of employment profeired by plaintiff as evidence of terms and other conditions of employment was not genuine. 5 10 15 Held, (I) that the discretion of the Court to discharge an order of arrest must be exercised judicially by reference to the principle of law underlying the power to direct arrest, on the one hand, and the realities of the case, on the other; that the 20 terms for the release of a boat must not be oppressive and the amount fixed must be directly referable to the amount likely to be recovered in the event of sucess; that if the disputed con tract was the sole evidence tending to establish a relationship of master and servant, this Court would incline to discharge 25 the order of arrest for failure on thepart of theplaintiff to ground a serious case; that, however, there is other evidence tending 532 1 C.L.R. 5 10 15 Singh v. F/B Alisur Blanco toestablishtheexistenceoftherelationship ofmasterandservant between defendants, and plaintiff, a relationship that came to anend indisputed circumstances;andthat, therefore, thisCourt is not prepared to discharge the order of arrest in.its entirety and set it aside.
(2)That on examination of the material before this Court in its totality, contained in the affidavits of the parties, the amount fixed as security for the release of the boat, appears to beexcessiveand, in thecircumstances of thecase, unjustified; that an amount in the region of US $2,000:-, or its equivalent in Cypruspounds,ismoreinaccord with the realities of thecase bearing in mind the nature of the claim and the amount likely to be recovered in the event of success; and that in the exercise of its discretion this Court directs its reduction accordingly. Application partlygranted. Cases referred to: The Andria, Weekly Law Reports, 1984 p.
- Application. Application by defendants for an order discharging the order 20 of arrest of the defendant ship and freeing the amount lodged pursuant to the above order. D. Socratous (Miss) for A. Theofilou, for the plaintiff. L. Papaphilippou, for the defendants. PIKIS J. gave the following judgment. This is an admiralty 25 action in rem, instituted bya seaman for wagesdue and damages for breach of his contract of employment. On the application of the plaintiff, following initiation of proceedings, an older was made for the arrest of the boat, accompanied by directions for her release, upon security being given for an amount of US 30 $8,000, or its equivalent in Cyprus Pounds. Appropriate security was given, by the lodgment with the office of the Marshal, of the amount specified in the order of the Court, plus an additional amount to meet another claim raised against the ship in Action No. 165/84; in all, an amount of C£6,500.— 35 was deposited with the Marshal, whereupon the boat was released. » The defendants moved the Court to discharge the order of 533 l'ikis .
- Singh v. F/B Alisur Blanco (19K.1) arrest andconsequential directions, and, free the amount lodged pursuant to the order of the Court. The motion is twofold: It aims at thedischarge of the order for the arrest of the boat and security given to bail it out, or thereduction of the amount lodged as security for the claim of plaintiff. In affidavits filed 5 in support of themotion, reference is made to the relationship οΓ the parlies, the circumstances of its severance, as well as to llie complexion of the case of the panics. Notwithstanding acknowledgment by defendants of the existence, at some lime, of the relationship of master and servant, they disputed the 10 genuineness of the contract of employment profcrred by plain tiff as evidence of terms and other conditions of employment. In their contention, the signature on the document attributed to the master, is not his own, casting doubts thereby onthe circumstances of its execution, as well as its authenticity. In ! 5 the contention of defendants thedocument is forged. Plaintiff failed to counter these allegations despite the opportunity he was given todoso.neutralising by hisconduct,for the purposes of this motion, theevidential value of the written contract relied upon in support of his case. On the other hand, there 20 is other evidence apart from thedisputed document, supporting the existence of a relationship of master and servant, between tiie parties. Jurisdiction to order the arrest of a boat is an incident of die admiralty jurisdiction inrem andaims to provide security for satisfaction of the claim of the plaintiff, if successful. 25 Arrest is ordinarily ordered onan ex parte application because of the mobility of the affected ship. Rule 60 of the Cyprus Admiralty Jurisdiction Rules confers jurisdiction ontheCourt, on a subsequent motion of the defendant, to discharge the order of arrest or direct the modification of its provisions in 30 any manner judged appropriate. The discretion of the Court is certainly wide enough, on consideration of the provisions of r. 60, to direct reduction of the security in a proper case. The discretion of the Court under r. 60 must, no doubt, be exercised judicially by reference to the principle of law under- 35 lying the power todirectarrest, onthe onehand,and the realities of the case, on theother. The power to arrest a ship and, gene rally, order security for the claim of the plaintiff,isan especially necessary remedy for the effective exercise of the admiralty jurisdiction inrem,considering thatthe presence ofthe defendant 40 in the jurisdiction is normally temporary. However, theterms for the release ofa boat must not beoppressive andthe amount 534 I C.L.R. 5 10 15 20 25 Singh v. F/B Alisur Blanco Pikis^l fixed must be directly referable to the amount likely to be recovered in the event of success. Mr. Papaphilippou invited the Court to discharge the order for arrest and security given thereunder for the release of the boat, because of the reliance placed by the plaintiff on a document of highly doubtful provenance. And relying on the decision of the English Court of Appeal in The Andria, The Weekly Law Reports, 13//; April, 1984, p. 570, he invited the Court to discharge the order for failure to make a candid disclosure of the facts. In TheAndria, the Court discharged an order of arrest for the reason that the jurisdiction of the Court had been invoked for an impermissible purpose, that is, a purpose not incidental to the exercise of the admiralty jurisdiction in rem. The applicant had failed to disclose to the Court that the claim was being pursued by arbitralion. In the instant case, there is no suggestion that the order of arrest was sought but as an ancillary measure to the exercise of the admiralty jurisdiction in rem of this Court; consequently, it cannot be said, as was the case in The Andria,that invocation of thejurisdiction of the Court was an abuse of the jurisdiction. Ifthedisputed contract wasthe soleevidence tending to establish a relationship of master and servant, 1 would incline to discharge the order of arrest for failure on the part of the plaintiff to ground a serious case. But, as already mentioned, there is other evidence tending to establish the existence of the relationship of master and servant between defendants and plaintiff. a relationship that came to an end in disputed circumstances. Therefore, I am not prepared to discharge the order of arrest in its entirety and set it aside. On the other hand, on examination of the material before me 30 in its totality, contained in the affidavits of the parties, tin amount fixed as security for the release of the boat, appear to beexcessive and, in the circumstances of the ease, unjusiiucd An amount in the region of US $2,000, or its equivalent in Cyprus Pounds, is more in accord with the realities o\' the 35 case bearing in mind the nature of the claim and the amount likely to be recovered in the event of success. In the exercise of mydiscretion, Idirect itsreduction accordingly. The amount thus furnished as security for bailing out the ship, will stand .v. security for the satisfaction of any judgment that plaintiff in: y 40 recover, and costs. Order accordingly. Costs in c.-.usc OnU'V t!cet>r,'iii\>ly. 535