clr/1987/1987_1_171.pdf

(1987)question, when the allegedcause of actionarose — Wronglyjoined as codefendants — Application for dismissal of action by defendants on said ground — Granted Admiralty - Practice- Special case for the opinion of the Court- The Cypnis AdmiraltyJunsdiction Order, 1893, rule101 5 Admiralty - Practice - Applications - Omission to refer in the application the correctrule- Inthiscaserule30 of the CyprusAdmiraltyJunsdiction Order, 1893 - On whichtheapplicationcould be based- Theomissionm thiscase does not rendertheproceedingsanullity, butconstitutesamereirregulanty The plaintiffs in this action claim damages for breach of a contract of carnage of goods evidenced by abillof lading dated6 12 77 Theaction was onginally instituted against defendants 1 and 2, but at ο later stage, the plaintiffs, upon an ex parte application supported by affidavit, obtainedan order for amendment of the name of the defendant 1ship and for adding a thirddefendant, namely Levante Shipping Co Ltd 10 15 The wnt was not served on defendant 1 ship The new defendants 3, although served, entered no appearance Defendants 2 filed the present application, praying for the dismissal of the action against them, on the ground thatthe ship in question, namely defendant 1,didnotbelongtothem atthetime,when thealleged cause ofacbon arose Thisallegation tallieswith 2 0 the allegation intheaffidavit, which theplaintiffs had filed insupport oftheir said application for amendmentandadditionof thethirddefendants,andon which theplaintiffs relied inordertoobtain thesaid order of theCourt Thepresent application was based ontherules 101,203 to212 and237 of theCyprusAdmiraltyJunsdictionOrder, 1893andontheinherentpowers of the Court The plaintiffs opposed theapplication 25 Held, dismissing the action

(1)Rule 101 reads «The parties to an action mayatanyhmebefore thehearingagreetostatethequestionsatissueforthe opinion of theCourtorJudge intheform of aspecial case. As thepartiesin mis case did not make such an agreement, it is obvious that the present 3 0 application could notbe based on rule 101

(2)Theapplication,however, couldbebased onrule30* Thequestionis whethertheomission torefertorule30inthepresentapplicationrendersthe proceedings void or constitutesa mere irregulanty ThisCourtconsiders the omission as a mere irregularity, particularly inapplications of thiskindwhere 3 5 rule30 provides thattineCourteven onitsownmotionmayordertheaddition orstriking outthenames of anyparties toanaction

(3)As itisclearthatatthetimewhen thealleged causeofactionarosethe applicants-defendants 2 did nothave any connectionwith the defendant 1 ship, the Court came to the conclusion that they were wrongly joined as ^JQ defendants totheaction 'Quotedatp ITTpost Actiondismissedwithcosts 172 1 C.L.R. Ο.ΝA.CO. v. Ship «Moechanty» Casesreferredto: Ship "Gloriana"v. Breidi(l982) 1C.L.R. 409; Re Hadjisoteriouand Another

(1986)1C.L.R. 429; WilliamsandGiyn'sBankPic.{1987)1C.L.R.

1. 5 Application. Application bydefendants2foranorderoftheCourt dismissing the action against them on the ground that on the date of the alleged cause of action thevessel in question did notbelong to them. 10 15 E. Vrahimi (Mrs.) for L. Papaphilippou, for the applicantsdefendants No.2 C.Hadjiloannou,for respondents-plaintiffs. Cur.adv. vult. MALACHTOSJ.readthefollowingjudgment. ThisAdmiralty actionhasbeen institutedbytheplaintiffs onthe 18thDecember, 1978, against defendants 1and2,claiming,asstatedtherein:- (a)44,000FrenchFrancsinequal Cyprus sterling as damagessuffered from the breach by the defendants of the contract of carriage evidencedbybillofladingNo.2datedthe6thDecember, 1977, bywhichdefendantshipundertooktocarry99.053 cartons 20 of Swedish refined sugar from Lanscroma, Sweden to Alger, where she discharged it on 18th December, 1977 and/or as otherwise; (b) legalinterestandcosts. On 26.1.79, the day named in the writ of summons for 25 appearance of the parties before the Court, a conditional appearancewas enteredonbehalf of defendants No.2, namely, Folegandros Shipping Co.Ltd.,as they intendedtoapply toset aside theissueandserviceofthewrituponthem. 173 Malachto· J. O.NA.CO. v. Ship «Moschanty» Counsel for the plaintiffs alsostated ontheabove daythathe intended to apply for amendment of the titleof the action and, furthermore, that he would apply for the addition of a third defendant. No appearance was entered on behalf of the defendant shipasnoservicewaseffected onher. 5 Thecasewasthenadjourned to31.3.79andanorderwasmade thattheplaintiffs anddefendants No.2wereatlibertytotakeany step in the action by filing an interlocutory application and the appearance of defendants 2 was considered as conditional till further orderofthecourt. 10 On 22.2.79, the plaintiffs, upon an ex parte application accompanied by affidavit, obtained an Order of the Court for amendment of the name of defendant No. 1ship so asto read "The ship "NOSCHANTY", renamed to "IOS", and now renamed or to be renamed to "ATHOS",and also obtained an 15 Order adding a third defendant, namely, Levante ShippingCo. Ltd.,ofNicosia,asownersand/oroperatorsand/orpossessorsof theship"MOSCHANTY",defendant No.
2. The case was then adjourned to 31.3.79 for service of the amendedwritofsummonsandforfurtherdirections. 20 On31.3.79,again noservicewaseffected ondefendant No.1 ship. The new defendants No. 3, although served, entered no appearance. Counsel appearing for defendants No.2 stated that he would file aninterlocutory application tosetasidethe issueandservice 25 ofthewritofsummonswithinthreeweeks. Counselforplaintiffs thenappliedfordirectionsandstatedthat asregardsdefendantNo.1ship,hewouldconsiderhowhewould effect serviceonher.AnOrderoftheCourtwasthenmadetaking intoconsideration theabove statements ofcounsel and thecase 30 was then adjourned to 31.5.79 for mention and for service on defendant No.1 ship. On the 5th day of April, 1979, defendants No. 2 . filed the presentapplication, prayingforanOrderoftheCourtdismissing the action against them mainlyon the ground that the vessel in 35 174 1 C.L.R. O.NA.CO. v. Ship «Moschanty» Malachto· J. question at the time when the alleged cause of action arose, di not belong to them 5 The application, as staged therein, isbased on the Rules of the Supreme Court of Cyprus in itsAdmiraltyJunsdiction, rules
3. 293to212and 237and on the inherent powersof the Court The relevant facts in support of the application appear in paragraphs 2.3.4and 5 of theaffidavit insupport thert^f and are the following 15 «2 The ship "Moschanty which was renamed to 'IOS' and later to 'ATHOS' (hereinafter referred to as the vessel) was until about September 1978 icgistered in Ihe name of Levante Shipping Company Limited Iproduce photo copy of a Transcript of Register dated 14th October, 1978 showing Levante Shipping Company Limited as registered owner of the vessel marked ExhibitA 20 3 The vessel was transferred into the name of the 2nd Defendant onoraboutthe 13thSeptember 1978onthebasis of a Billof Sale issued and signed bythe then mortgageesof the vessel on the strength of the Deed of Covenants, and under section 31

(2)(e)of Law No 45/63 l0 - - 25 4 From the writ of summons it transpires that the claim arose on a Bill of Lading dated the 6th December, 1977 in respect of goods allegedly discharged on the 18 12 77 During these dates and until the 13th September, 1978 the —2nd Defendants were not the owners nor did they have possession or operation of the vessel 5 The 2nd Defendants in any event have never contracted with the plaintiffs» The plaintiffs opposed the application and in the affidavit in 30 support of their opposition, particularly paragraphs 2 and 3 thereof, the following isstated 35 "2 Neither the Plaintiffs nor their advocates ever agreed with the defendants 2ortheiradvocatestostateacaseforthe determination oftheCourtpursuant torule 101ofthe Cyprus Admiralty Junsdiction Order, 1893 and indeed the Plaintiffs 175 Malachto· J. O.NA.CO. v.Ship «Moschanty»

(1987)object to the determination of any of the issues or possible issues in this action before the closing of the pleadings and day of trial ot the action. Therefore this application is groundlessandmustbedismissedasnoreliancecanbeplaced on Rule 101by the Applicants. 3. The facts stated inparas.2,3,4 and 5ofthe affidavit in support of the application are irrelevant at this stage to the Plaintiffs' action against Defendants 2 in any event they are not and/or notyet inissue.Should itappear tothe applicants at a later stage that these facts are material for their defence 10 they may plead them in their answer.» However, in the affidavit in support of the application of the plaintiffs toamend thenameofdefendant No.1shipandtojoinas a party the third defendant, namely, Levante Shipping Co. Ltd., not only they admit the facts contained in paragraphs 2 to 5, 15 inclusive, of the affidavit insupport of the present application of defendants No.2,butalsoreliedonthesefactstoobtaintheOrder they applied for. Therelevantpartoftheaffidavit oftheplaintiffs readsasfollows: "2. On the 17.12.78 we received urgent telephone 20 instructions toinstitutelegalproceedingsimmediately against the ship "MOSCHANTY" and itsownerswhowere stated to be Messrs. Folegandros Shipping Co. Ltd. to protect the claim referred tointhewritofsummons from becoming time barred as the owners were unwillingto grant an extension of 15 time.Thiswe did. 3. After the institution of the proceedings we investigated theownershipand historyoftheship'MOSCHANTY'andwe found the following: (

1. a)The ship 'MOSCHANTY' was on the 6.12.77, the date JQ of the relevant bill of lading, owned by Levante Shipping Co. Ltd.of Costi Palama str.No.20,Apart.A2,Nicosia. (
2. b)On the 13.8.1978 the vessel was transferred and registered in the name of Folegandros Shipping Co. Ltd.,of Costakis Pantelides Av. 1, Nicosia and on the same day she 35 wasrenamedto'IOS'. 176 5 1 C.L.R. 5 O.NAXO. v.Ship «Moschanty» Malachto· J. (
3. c)Lateran application wasfiledfortherenamingoftheship to 'ATHOS' which was approved and in fact on the 15.1.78 instructions were sent to PIRAEUS for the renaming to 'ATHOS' but ^it is not known yet whether she has been renamed to ATHOS'or not.» Therefore, there can be no dispute that the facts contained in paragraphs 2 to 5 of the affidavit in support of the present application, areadmitted bytheplaintiffs inthisaction astrue and correct. 10 15 20 25 Counsel for applicants-defendants 2 in support of this application inaddressingtheCourt,reliedonrule30oftheCyprus AdmiraltyJurisdiction Order, 1893 and not on rule 101as stated inthe application, obviously realising that inthe present case this rule isinapplicable. These Rules read as follows: «30. The Court or Judge may at any stage of the proceedingsand eitherwith orwithout an application for that purpose being made by any party or person and upon such terms asshall seem just, order that the name or namesof any party or partiesbe struck out or that the names of any person or pcrzcr.z v.-ho sre inierPstpH in the action or who ought to have been joined either as Plaintiffs or Defendants or whose presence before the Court isnecessary inorder to enable the Court effectually and completely to adjudicate upon and settle allquestions involved inthe action be added.» •101. The parties toan action may~atanytime before thehearing agree tostate the questions atissuefortheopinionof the Court orJudge inthe form of a special case.» The main argument of counsel for applicants -defendants 2,is 30 thatontheadmittedfactsofthecasethereisno privityofcontract between them and the plaintiffs and submitted that the issue and serviceofthewritofsummonsondefendants 2shouldbesetaside and the action against them should be dismissed. Counsel forthe respondents, on theotherhand, submitted that 35 since there is no agreement between the litigants to state the question at issue for the opinion of the court, in the formofa 177 Malachto· J . O.NA.CO.v. S h i p «Moschanty»

(1987)special case, rule 101 is inapplicable He further submitted that -ule30,on which counsel for applicantsrelied inthecourse of the heanng of this application, is also notapplicable as in the case in hand we are notconcerned with joinder or misjoinder of parties Healso submitted thatatthisstage oftheproceedings thecourt 'las nojurisdiction toentertainsuchapplication As statedearlier 5 on inthisjudgment,itisobvious thatthepresentapplicationcould not be based on rule 101 of the Cyprus Admiralty Jurisdiction Order,

1. but it could certainly be based on rule 30 Apoint which though not raised by counsel for the respondents, but on 10 which I consider necessary to pronounce, is whether the irregulantyof non reference of rule
2. asaprovision onwhichthe application is based, which is substantially the same as rule 10of Order 5, of the Civil Procedure Rules, renderstheproceeding?a nullityor itisjust a mere inegulanty I mustsay straight away that 15 Iconsider this omission of applicants a mere irregulanty andthat itisnotfatal, particularly inapplicationsof thiskindwhere rule 30 itself,provides thatthe Courteven on its own motionmay atany stage of the proceedings order the addition or stnking out thn names of any parties toanaction Useful reference may be made 20 as regards theabove pointinthecase of theShip "Gloria" ν Eddy Breidi

(1982)1 C LR 409 at pages 416 to

1. in the case ofIn Re JuliaHadjisotenou and Another judgment delivered on 17th October, 1986 notyet reported*and the recentcase of Williams & Glyn s Bank ν Laertis Shipping Enterprises. Civil Appeal No 25 7040, judgment delivered on 9th March,notyet reported ** Coming now to the mam issue in the present application, itis dear from the facts established by the relevant affidavits thatthe applicants-defendantsNo 2,have noconnectionwiththeclaimof theplaintiffs as atthetimewhen thealleged cause of actionarose, 30 they were neither the owners nor the charterers or had any connection with thedefendant No 1ship In view of the above, 1hold the view that the applicantsdefendants No
2. were wrongly joined as co-defendants in the present proceedings and, therefore, the issue and service of the 35 wnt of summons, as far as they are concerned,are set aside and 'Reportedin

(1986)1CLR 429 **Reportedin

(1987)1C LR 85 178 1CX-R. O.NA.CO.v.Ship«Moschanty» Malachto·J. theactionisdismissedwithcostsinfavour oftheapplicants,tobe assessedby the Registrar. Action againstdefendants No. 2 dismissedwithcosts. 179