clr/1984/1984_1_72.pdf

(2)That where there is an order to sell only the vessel the cargo-owners will be advised by the Marshal to have the cargo discharged within reasonable time;thatsince inthe-present case till to-day there is no order for the sale of the ship, in the absence of any such order the Marshal could not have noiified ιhe cargo-owners of his intention to sell the ship and give'them reasonable lime -to discharge their cargo before .applying for •directions for'its discharge; .accordingly prayer (b) -cannot be granted. Application .partly granted. Cases referred to" Punayiotis v. Ship"Maria"

(1983)1C.L:R.497 at pp. 503,-504; .Baring Shipping Co. v. TheShip Eurotrader (t$>78) I C.L.'R. 93. Application. Application by plaintiffs for the appraisement and sale of the defendant ship. A. Neocleous with A. Georghadjis, for .the applicantsplaintiffs. J. Mavronicolas, for the cargo owners. Cur. -adv. vult. SAVVJDES J. read the following decision. This is an appli­ cation Tor the.appraisement-and sale of the defendant ship and for directions for .the unloading of the cargo laden on her. The applicant is the plaintiff judgment-creditor in the above action in whichjudgment was entered in his favour for £4,080.-, plus interest and costs. By his petition in the action the appli­ cant was also praying for an order of appraisement>and.sale of the.said ship but such matter was left open by the Court with directions that it would be decided on-a separate.application by theplaintiff in consequence of which the present application was filed. The defendant ship is under arrest in the above action and the warrant of arrest is still in force by an order of this Court. According to the contents of the affidavit in support of the application, the defendant ship is loaded with a cargo of 6,584 73 Sanides J. Constantinidcs Co.Lid. v. Ship"Mighty Spirit'"

(1984)M/T of chick peas and lentils loaded at Mersin of Turkey with destination Karachi of Pakistan and Bombay of India, the freight of which has been prepaid. It is contended that the presence of cargo aboard has an adverse effect on the sale to the detriment of all parties who havean interest, claim or lien in the 5 ship and that the discharging of the cargo will confer a benefit both on the res by enhancing its value and on the cargo itself which being of perishable nature will be better looked after, if unloaded. Counsel for applicant brought to the notice of the Court that 10 orders have already been made by this Court for the unloading of part of the cargo belonging to some of theowners and submitted that if the whole cargo is unloaded, the expenses will be much less than by unloading individual parts of the cargo. Counsel for applicant together with Mr. Mavronicolas, counsel 15 for some of the cargoownerswhojoined the application, offered to provide the Marshal with sufficient funds for the unloading of the cargo and its storing in a licensed warehouse. I shall deal first with the question of appraisement and sale of the defendant ship. The provisions empowering the Court to order the appraisement and saleof ship are to befound inrules 74- 77of the Rules of the Supreme Court of Cyprus in its Admiralty jurisdiction. rule 74, reads as follows: "It shall be lawful for the Court or Judge, either before 25 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 or persons to appraise any property under the arrest of the Court, or to sell any such property either with 30 or without appraisement, or to remove or inspect and report on any such property or todischarge any cargo under arrest on board ship." Ina recent decision in thecaseof Panayiotis v.Ship "MARIA"

(1983)i C.L.R. 497, 1had the opportunity of dealing with the 35 provisions of Order 74and at pages 503,504, Ihad this to say: "For the Court to exercise its power under rule 74, the subject-matter property should be under the arrest of the Court. 74 20 I C.L.R. 5 10 Constantinides Co. Ltd. v. Ship'"Mighty Spirit" Sawides J. In the Wexford [1888] 13 P.D. 10 it was held that for this Rule to be applicable the res must-be in the hands of the Court. It has, however, been the practice of the Admiralty Court in England to require that the res be under arrest in the action in which an order for appraisement and sale is sought. This practice was approved in TheRicuna

(1974)Folio 380 (unreported) (see Annual Practice 1982, Vol. I, p. 1238). Therefore, for rule 74 to come into play, the ship should be under the arrest of the Court in the particular action. The fact that the ship is under arrest in another action, is not sufficient," It is clear from the above that an order for the appraisement and sale of a ship under rule 74can be made, provided that the 15 shipisunder arrest in theaction inwhich theapplication ismade. In the present case the ship has been arrested by a warrant of arrest issued by plaintiffs in this action. Therefore, they are entitled to an order for the appraisement and sale of the ship in the execution of their judgment. 20 I am coming next to consider the second part of this application by which the applicants apply for direction for the discharge of the cargo laden on the defendant ship. Orders have already been made by this Court on the application of cargoowners concerned for the unloading of cargo belonging to them 25 and laden on the defendant ship. As already mentioned Mr. Mavronicolas appearing for some cargo owners in this application joined the application for the unloading of the cargo and offered on their behalf to share with the applicants the expenses of unloading and safe storing of the whole cargo. 30 In the British Shipping Laws, Admiralty Practice para. 389 the proper course to be followed in cases where an arrested vessel in respect of which an order for sale is made is that "the Marshal will advise the cargo owners to have the cargo discharged and will give them reasonable time for this to be done. 35 If no steps have been taken within the time allowed, the Marshal will apply to the Court for directions." This proposition is based on the authority of Selina Stanford, Sh. Gaz. December 8, 1908. 75 Sawides J. ConstantinidesCo.Ltd. v.Ship"Mighty Spirit"

(1984)In Baring Shipping Co. v. -Ship "EVROTRADER"

(1978)1 C.L.R. 93 in which this Court had to deal with an application by the Marshal for an order authorising him to discharge a cargo of about 2,800 tons of foodstuffs on board the ship "EUROTRADLR" before proceeding to the appraisement and sale of the ship in execution of judgment against her, the Court held: "Where the MarshaLhas custody of a vessel and there is an order to sell only the vessel thecargo-owners will be advised by the Marshal to have the cargo'discharged within reasonable time; and -if the cargo owners do not take steps within thetime allowed the Marshal may, with theleave οϊ the Court,discharge and sell the cargo reimbursing himself from the proceeds." 5 10 In the present case, till to-day, there is no order for the sale 15 of the ship. Therefore, in the absence of any such order the Marshal could not have notified the cargo owners of his in­ tention to sell the ship and give them reasonable time to dis­ charge their cargo before applying for directions for its dis­ charge and probable sale for reimbursing the costs of unloading 20 transportation and storage. For the above reasons, but without prejudice to the orders already made in respect of part of the cargo on the application of some of the owners, I have come to the conclusion that the prayer under part (b) of this application cannot be granted. 25 In the result, the application in respect of part (a) only is granted with costs in favour of the applicant against the re­ spondent ship and an orderis hereby madefor theappraisement -and sale by the Marshal of the defendant ship "MIGHTY SPIRIT" by public auction or, subject to the prior approval of 30 the Court, by private treaty. The proceeds of the sale to be brought into Court. Order accordingly. 76