clr/1987/1987_1_297.pdf

(1987)vthure the vessel was οι bay The delivery was receipted by a Master's certificate and the terms were evidenced by an invoice dated 15 9 86 On 25 9 86 defendants 2 assumed possession and managementof thevesselin exercise of their powers as mortgagees Thevessel was eventually arrested and sold to satisfy the judgment and claims against her The Marshal was joined as a party tothisactionbecause of his involvement intheseizure and sale of thevessel 5 Counsel for the plaintiffs submitted that a cause of action is disclosed in virtue of s 70 of Cap 149 Held, granting the application

(1)Rule 24 of the Cyprus Admiralty 1 0 Jurisdiction Order 1893 makes disclosure of a cause of action against a defendant outside the junsdiction a condition precedent to leave The disclosure of a cause of action is solely dependent on the objective implications of the facts as disclosed in the affidavit in support of the application for leave andnotonthementsof the factualsituationorplaintiff's 1 5 belief mtheexistence of acause of action Thefacts mustgrverise toapnma facie or arguable case The authors of the White Book, 1958 edn ρ 162 adopt the following test todecide whether thejoinder of aforeign defendant is a proper one namely «supposing both defendants had been within the junsdiction,would they have been properpartiestotheaction'» 20

(2)The inescapable inference m thiscase is thattherewas an outnghtsale oftheoilbunkersbytheplaintiffs todefendants 1 Thepropertyinthe bunkers passed tothe purchasers

(3)Thefact composing theplaintiffs' claim are wholly outside theambitof s70 of Cap 149, which reproduces the common law pnr.ciple of quasi 2 5 contractual liability of the recipientof goods orservices supplied orrendered not gratuitously Inthis case nothing was ever delivered tothe defendants Even after the possession of theship by the mortgagees, they would not be liable for necessanes supplied totheship,unless theMasterinordenngthem acted as theiragent 30 Applicationgrantedwith costsagainsttheplaintiffs Casesreferred to PhotosPhohadesandCo

(1965)L C L R JadranskdShbodnaProvidbav

1. 35 Chemische Fabnk Vomials Sandoz ν Badische Anilin and Sod Fabnks [1904] 90 LΤ 733, Ε PhihppouLtd ν Compass InsuranceCo Ltd (1987} 1 C L R 344, Massey ν Heynes. 21 Q Β D
2. 77ie Troubadour, LT 1867 Vol XVI, ρ 176 298 40 1 C.L.R. Sekavin S.A. v. Ship «Platon Ch» Application. Application by defendants 2 for an ordersetting aside theorder of the Court dated 17 2 1987 authorising service of the wnt of summons upon defendants outside the jurisdiction 5 Ε Montamos, for applicants - defendants 2 Ε Lemonans, for respondents - plaintiffs Cur adv vult P1KISJ read the following judgment This isan application by defendants 2, {hereafter thedefendants), aforeign corporation to 10 set aside an Order of the Court dated 17th February, 1987, authonsing service of the notice of the writ of summons upon defendants outside thejurisdiction TheOrderwas given unan ex parte application of the plaintiffs dated 29th January, 1987, founded onfacts deposed toinanaffidavit of Stelios Skoufans, an 15 advocate practising inassociation with Mr Lemonans, counsel for plaintiffs 20 Defendant's wntten motiontoset aside theOrderrests on r 211 of the Cyprus Admiralty Junsdiction Rules empowenng a party affected by an Order toseek itsrescission orvariation Moreover, they rely on the inherent powers of the Courtwhereby a party to judicial proceeding should in recognition of a natural nght, be afforded anopportunitytobe heardinthematter (Seealso Article 30 3 (a)(b)) About theright of the defendants tomove theCourt for areview of theOrder of 17 2 87 there is no controversy 25 Rescission of the Order is pnncipally sought for failure on the part of the plaintiffs to disclose in the affidavit supporting their application,acause ofactionagainst thedefendants, cognizable in law Whatever complexion onemayputuponthefacts supporting their application for leave toserve notice outside the junsdiction, 30 they do not disclose a case against the defendants separately or jointly with any of the other two co-defendants R24* makes disclosure of a cause of action against a defendant outside the junsdiction aconditionprecedenttoleave InJadranska Slobodna Plovidba ν Photos Photiades & Co **it was indicated that the * CyprusAdmiralty Junsdiction Rules **

(1965)I C L R 58 299 Pikis J. Sekavln S.A. v. Ship «Platon Ch»

(1987)ambitofr.24 issimilar tothatof Ord. 11 r.Iof theOld Rules of the English Supreme Court, and like considerations should govern the exercise of.the discretionary power of the Court to allow service outside thejurisdiction. Adopting theobservations of Lord Davie in Chemische FabrikVormals Sandoz v.Badische Anilin 5 and Sod Fabriks*they drew attention tothefact thatthe disclosure of a cause of action is solely dependent on the objective implications of the facts setforth inthe affidavit and not on the examination onthe merits of the factual situation. Belief in the existence ofa cause ofaction is notofitself sufficient. The facts 10 mustgive rise totheexistence of aprima facie orarguable case in order for the Court to exercise its discretion in favour of the proponent of service outsidejurisdiction.Asimilarview respecting the presence orabsence ofa cause of action wastaken bythis Court in E. Philippou Ltd. v. Compass Insurance Co. Ltd.,** 15 though inslightly different context. On areview ofthe relevant case law pertaining to the exercise of the discretion ofthe Court under Ord. 11 r.l(g) the authorsof the White Book*** adopt thefollowing testtodecide whether the joinder ofa particular foreign defendant isa proper one, namely 20 «supposing both defendants hadbeen within thejurisdiction, "would they have been proper parties tothe action?»**** The nature of the discretionary power of the Court andthe circumstances of its application are also debated in British Shipping Laws, Admiralty Practice.***** 25 Next we shall review the facts founding plaintiff's claim against defendants. They aredisclosed inthe affidavit supporting their applicationandtotheextenttheyrestondocumentaryproof,such evidence isdisclosed inan earlieraffidavit of theplaintiffs referred to bythe defendants inthe affidavit swom toinsupport of the 3 0 present motion. Plaintiffs supplied aquantityoffuel oilbunkers for consumption by Platon Ch., the first defendants inthis action. Delivery was madeon8.9.86attheislandofSyros, Greece, where the vessel wasatbay. The delivety nt.* :eccipted bya Master's Certificate and the terms were evidenced byan invoice of 15th 3 5 *

(1904)90LT. 733ρ735 "

(1987)1CL.R. 344 '"1958Edn.p 162 **** Testsuggestedby LordEsher. MR. Massey v.Haynes 21 QBD ρ338 ***** Valume 1 par," 483 and 492 300 1 C.L.R. Sekavin S.A. v. Ship «Platon Ch» Pikis J. September,

1. Whatever gloss may be put upon the circumstancesofthistransaction, the inescapable inference isthat it was an outright sale by the plaintiffs to defendants
2. Norights were reserved in favour of plaintiffs over the fuel oil supplied; on 5 thecontrary,thetermsof paymentreinforce theviewthatitwasan outrightsale. As aresult, theproperty inthebunkers passed tothe purchasers, theship, defendants 1intheaction. On 25th September, 1986, thedefendants assumed possession and management of thevessel in exercise of their rights as 10 mortgagees.* At thattimethevessel was at the Portof Constanza Romania wherefrom she sailed totheportof Limassol, Cyprus.In Cyprus proceedings were taken by the defendants against the vessel pursuant to their rights as mortgagees. The vesselwas arrested and subsequently sold tosatisfy thejudgment and claims 15 against her. The Marshal was joined as a party to these proceedings because of his-involvement intheseizure and saleof the vessel. The joinder of that party is,therefore, unconnected with the claim made against the defendants. The sole question calling for decision is whether the facts 20 supporting the order disclose a cause of action against the defendants separately orin conjunction with theclaim raised against defendants 1 incircumstancesthatmakethedefendants a proper ora necessary party tothese proceedings. Counsel for the plaintiffs submitted thatthisisthe effect ofthe 25 facts deposed to in theaffidavit of Mr. Skoufaris of 29.1.
3. Specifically acause ofaction,he argued, isdisclosed against the defendants invirtue of theprovisions of s. 70 of theContractLaw Cap. 149.Thereliefs sought against them underprayers A&Βare designed, the first tomake the defendants accountable forthe 30 value ofthe bunkers asbeneficiaries ofthe oil supplied, and the second toobtain adeclaration thatthey remain the owners of the unconsumed fuel oil stored on the vessel, coupled with an Order directing the defendants to restore thebunkers tothe plaintiffs. It ishelpful toreproducetheprovisions ofs.70 Cap. 149 considering 35 that this isthe only legal provision relied upon asvalidating the cause of the plaintiffs. *See section31

(3)Merchant Shipping (Registration ofShips,Sales andMortgages)Law. 45/63 301 Pikis J Sekavin S.A. v. Ship «Platon Ch»

(1987)Section 70 reads «Whereaperson lawfully doesanything for anotherperson, or delivers anything to him, not intending to do so gratuitously, andsuchotherperson enjoys thebenefit thereof, the latter is bound to make compensation to the former in 5 respect of or to restore the thing so done or delivered » By and large, the section reproduces the common law pnnciples of quasi contractualliability of the recipient of goods or services supplied or rendered non-gratuitously, whereupon an obligation is cast on the beneficiary of the goods or services to 10 make reasonable compensation for theirvalue (quantum meruit), or restore them The facts composing the claim of the plaintiffs against defendants are wholly outside the letter and spint of s 70 To begin, the goods were never delivered to the defendants, they 15 were delivered to defendants 1 under and in accordance with a contract of sale Nothing was ever delivered to the defendants, they came under nocontractualor quasi contractualobligation to the plaintiffs As counsel for the defendants pointed out in argument even after the assumption of possession by the 20 mortgagees they would not be liable for necessanes supplied to the ship unless the Master inordenng themacted as theiragent * Having carefully reflected on every aspect of the claim of the plaintiffs as disclosed intheaffidavit supporting theapplication for service outside the junsdiction, no cause of action in the sense 25 earlier referred to was disclosed against the defendants Forthat reason the basic -requisite for service outside the junsdiction under R 24 is missing Consequently, theOrdermust beset aside and so I direct Further,theplaintiffs are adjudged topay the costs of the present proceedings 30 Applicationgranted Costs byplaintiffs * TheTroubadour.TheLaw TimesReports30th March 1867 Valume XVIρ 176 302