1C.L.R. 1987 February 14 ΙΑ LOIZOU. J.] LEFKARITIS BROS. MARINELIMITED OWNERSOFTHEVESSEL«PETROLINAIV., Plaintiffs, v. DEMETRAK1S HJICONSTANTINOU, LARNACA CARRYING ON BUSINESS UNDERTHENAME TANYA SHIPPINGOFFICE, Defendants. (AdmiraltyAction No.59/80). Evidence—On0nal evidence, definition of—Hearsay evidence, definition of— Statements by persons who are not witnesses—They are either original evidence orhearsay—The testisthepurpose of tenderingsuch statements 5 Evidence—Practice—Admitting documents subject to their contents being rendered admissible subsequently and not left as mere hearsay—Course pursued inordertoavoidunnecessarydelay—Permissible—Butattheendof day theCourt canrelyonly onadmissible evidence. Admiralty—Voyage charter—Definition of—Master remains the servant of the shipowners—InstructionsbythelattertotheMasterthatheshould followthe instruction's of the charterer—Absence of agreement inthatrespect entered intobythecharterer—Masterremainedtheservantof the shipowners. 15 20 The plaintiffs agreedtocharter their vessel tothedefendant fora signletrip. from LimassottoSour, Lebanon tocany general cargoinconsideration ofa lumpsum,prepaid onsigningthebilloflading.Pursuanttotheagreementthe vessel loadedgeneral cargoand on orabout2.4.79proceeded tothe portof Sour. Onor about the 17.11.79,whenthevessel was attheport of Beirut, Lebanon,shewasarrestedbytheAuthontiesontheqround,asallegedbythe plaintiffs', thatatherarrivalattheportofSourasaforesaid,hercargohadbeen discharged in an unlawful manner. The vessel remained so arresteduntil 1.12.79. Asa resultthe plaintiffs broughtthis action claimingdamages*against the defendants,allegingthattheMaster,althoughappointedbytheplaintiffs,was at therelevanttime under theorders and/or instructions of the defendant, who hasa duty toindemnify theplaintiffs, for anylossordamage that they The particularsofdamagesappearatp.47 post. 43 L e f k a r t t U Bros v.Tanya Shipping have sufferred in consequence of the Master's compliance with such orders and/or instructions In the courseoftheheanng theplaintiffssought toproducevanousreceipts but the defendant objected to such production The Court ruled that the receipts in question could be produced subject to the fact that the persons, who obtained them,would testify and identify them in due course The said receipts related to items a,b and c of the particulars of damages As regards item (d), no receipts or other evidence was adduced Furthermore the plaintiffs adduced evidence that the Master was instructed by one of their Directors to follow theinstructions of the charterers 5 \Q Held, dismissing theaction
(1)The law of evidence distinquishes between onginal and hearsay evidence The first indicates the evidence of a witness who deposestofactsofhis own knowledge, whereas thesecondindicatesthe evidence of a witness, whose information isdenved from other persons and he himself has no personal knowledge of the facts to which he deposes 1 5 Hearsayevidence isnotasageneral ruleadmissible Moreover,statementsby persons who are not witnesses are either onginal evidence or hearsay The test is the purpose of tendenng such a statement If it is to prove that a statement has been made irrespectiveofwhether itscontentsaretrueorfalse, then the evidence is onginal, whereas if it is to prove the truth of the fact 2 0 asserted in the statement, the evidence is hearsay
(2)In this case the vanous documents were admitted subject to their contents being rendered admissible evidence and not left as hearsay evidence This course is not inconsistent with permissible practice and was pursued in order toavoid unnecessary delay However,atthe endofthe day 9 £ the Court can only rely on admissible evidence It follows that asthe plaintiff» failedtocalltheauthorsofthesaiddocuments,they shouldnow berejected
(3)As there is no admissible evidence as to why and on account of whose fault the arrest of the vesselwas effected, the action must be dismissed
(4)!n any event the terms of the agreement between the parties bnng it 3 0 within thedefinitionofavoyage charter, which is«a contracttocany specified goods on a defined voyage or voyages, the remuneration of the shipowner being a freightcalculated accordingtothequantity ofcargo loadedor earned or sometimes a lump sum freight {Scruttonon Charter Parties 18th Edition, ρ 49) The Master, therefore, was the servant of the owners and the 3 5 instructions that he should follow the directionsof thechartererdo not,inthe absence of any agreement in that respectentered intoby thecharterer, make him the servant of the latter as regards compliance with the regulations and procedures at the portof discharge Action dismissed with no order astocosts 44 40 1CL.R. Lefkarttis Bros. v.Tanya Shipping Casesreferredto: Voniahsv.KoureasandAnother
(1979)1CL.R. 492; Elliasv.Yianni
(1958)23CL.R. 22; Georghiadesv.PatsalidesandAnother, 24CL.R. 275; 5 . The'Eugenia· [1964]Q.B.226. Admiraltyaction. Admiralty action for damages by plaintiffs against the defendants forbreach ofthe charter partyand/or agreement and/ orcontract entered into on orabout 30.3.1979. 1Q St. Karydes, for the plaintiffs. G.Nicolaides, for the defendants. Cur.adv. vult. A. LOIZOU J. gave the following judgment. The plaintiffs' claim against the defendant isfor:- 15 «(
- a)Damages for the losssuffered by them in consequence of the defendants and/or their servants and/or their Agents' breach of the Charterparty and/or Agreement and/or Contract and/or otherwise entered into on or about the30th of March, 1979, and/or. 20 (
- b)Damagestoand inrespect of and/orinconnection with theplaintiffs' ship«PETROLINAIV»andany.loss and/or expenditure sustained to the plaintiffs by reason of the defendants' and/or their servants and/or their Agents' breach of contract, Agreement or duty and/or through negligence whereunder the Plaintiffs sustained damages, lossand/or expenditure. 25 (
- c)Legal interest and costs.» The plaintiffs are a company with limited liability registered in Cyprus.Atallmaterialtimestothisaction theyweretheownersof 30 thevessel«PETROLINAIV»registeredunderCyprusRag*andthe defendant wascarrying,interalia,thebusinessofcharterer and/or forwarder under the businessname TANYASHIPPING OFFICE. On the 30.3.1979, an agreement entitled «Booking Note» was entered into between the plaintiffs and defendant, exhibit 1. The 45 A-LolzouJ. L*&arttisBro*v.TanyaShipping
(1997)plaintiffs agreed to charter thesaid vessel tothe defendant fora singletripfrom LimassoltoSourLebanon uponthetermssetout in the said Agreement, which provided, inter alia, that other conditions would be «as per the attached addendum and GENCONC/P (unlessotherwise specified inthebookingnote).» SpecimenoftheGENCONC/Pagreementhasbeenproducedas exhibit
- 5 Twoofthetermsoftheaforesaid Addendum wereasfollows:«
- At Sour (port of discharge) the maximum cost will be U.S.$300includingPortDues,Pilotage,AgencyFeesetc. 10 AnythingoverandaboveU.S.$300willbeforCharterers Account...
- The vessel immediately after loading will proceed to Sour, Lebanon, where she willdischarge her cargoina lawful manner and procedure. Such procedure is the 15 charterers'responsibility.» Term 14ofexhibit3reads:«Inevery casetheowner shallappointhisownbrokeror agent both at the port of loading and the port of discharge.» Thiscondition, however, was varied by the agreement of the partieswho,undertheaforementioned term2oftheaddendum, thecharterershad agreed toengage an agentoftheshipinSour and be reimbursed up to amaximum cost of US$300; anything overthatbeingfortheCharterers'Account. 20 25 Pursuant to the aforesaid Agreement the vessel proceeded at Limassol Port on or about 31.3.1979 and on the orders of the defendant loaded general cargo and on or about 2.4.1979 the vesselproceeded tothePortofSourinLebanon. Itisthecontention oftheplaintiffsthat«whenthevesselarrived 30 atthePortofdischargethedefendant inbreach oftheiraforesaid undertaking and/or otherwise failed in their duty to take the proper and/or necessary steps and/or to make the necessary arrangements with the Lebanese Authorities for the discharge and/orunloadingofthecargoinalawfulmannerandprocedure.» 35 (Seeparagraph 6ofthePetition.) 46 1C.L.R. Laflurltfai Br©·.v.TanyaShipping A.Lotaou
- On or about the 13.11.1979 the vessel arrived at the Portof Beirut and whilstshe wasready to sail from the said Port on or about 17.11.1979, she was arrested by the Lebanese Port Authoritieson theground,asalleged bytheplaintiffs, thatather 5 arrivalattheportofSouronorabout2.4.1979,thecargowhich then wason board had been discharged inan unlawful manner and/ orprocedure.The vesselremained soarrested untilthe 1st dayofDecember,
- Byreason of the mattersaforesaid the plaintiffs claim tohave 10 suffered lossanddamageamountingtothesumofUS$25,715.11 asfollows: a. Amountpaidbytheplaintiffs tothe LebaneseAuthoritiesfortaxesand penaltyasaresultofthe unlawful 15 dischargeasabove U.S.$ 7,583.65 b. Amountpaidbytheplaintiffs for Legalfeesandexpenses U.S.$ 9,551.60 c. ExtraWarRiskInsurancefor14 daysfrom 17.11.79to1.12.79 U.S.$ 1,500.00 20 d. Demurragefor 14days01hourand55 minutesfrom 17.11.79,1000 hours,to 1.12.7911.55hoursatU.S.$500perday Total U.S.$ 7,079.86 U.S.$ 25,715.11 —Itwasfurther and/orinthealtemativeallegedon behalf ofthe 25 plaintiffsthattheMaster(althoughappointedbytheplaintiffs)«was under the instructions and/or orders and/or directions of the defendant and/orhisservantsand/oragentsasregardsthe lawful discharge and/or unloading of hercargo and thedefendant was underthedutyand/orresponsibilitytoindemnify theplaintiffs for 30 any loss or damage that they might suffer consequent to the Master'scomplyingwithsuchordersand/orinstructions.» Inproof of their claim the.plaintiffs called three witnessesand produced a number of documents, the contents of which and theirlegalsignificance inthelightoftheRulesofEvidence,Ishall 35 bedealingwithinduecourse. MariosLefkaritis, oneoftheDirectorsoftheplaintiff company 47 A.LolzouJ. LefkaritisBrosv.TanyaShipping
(1987)produced the booking note,towhich already reference has been made (exhibit 1),abundle ofreceiptsobtained forthepaymentsof the amounts paid under paragraphs (a) - (c)hereinabove set out (exhibit c). Their production was objected to on behalf of the defendants and I ruled on that objection that the receipts in 5 question could be produced subject to the fact that the persons that obtained them would testify and identify them indue course. As regards item (d), no receipts or other evidence was adduced. The witness also produced a specimen of the GENCON C/P as exhibit
- He further stated thathe gave instructions tothe Master 10 of the ship that he should follow the directions of the charterers. He did so, as the ship would sail for Lebanon and discharge its cargoatSour, and inaccordance withthecharterpartythe Master had tofollow the instructions of the charterer. He gave, nowever, no other instructions to the Master, the charter being a voyage 15 charter. When sometime later the ship was arrested in Lebanon on another trip there, he instructed Mr. Savas Georghiades, an advocate,toproceedtoLebanon andactontheirbehalf andinthe defence of theirinterests there.Upon hearingfrom Lebanon asto - 20 what was the situation there, he met the defendant and told him that he had been informed that the ship had been arrested at Beirut because the taxespayable tothe authorities inSour for the cargo discharged at the voyage covered by the booking note (exhibit 1) had not been paid. The defendant, according to this 25 witness, was not in a position to tell him at that moment if these taxeshadbeen paidornot,ashesaidthat«thatwasamatterforthe consignees of the cargo.» Another relevant piece of evidence as to which this witness testified wasthat the agent of the ship inLimassol wasappointed 30 bythedefendant inhiscapacityaschartererandthatasregardsthe agent in Lebanon they agreed to deduct $300 from the freight so that they would cover the costs of the shipping agency atSour in accordance with term 2 of theAddendum to exhibit
- Asked in cross-examination about the Master, he said that he 35 had no reason to doubt hisintegrity untilthatmoment and that he did not have in mind that he would be instructed to commit theft or other criminal act, in fact, he said that he did not know if he committed a criminal offence. He did not know if the amounts paid were taxes and penalties, all that he knew was that their 40 48 1 C.L.R. Lefkaritis Bros.v.Tanya Shipping A. Lolzou J . advocateaskedthem topaythisamountforthereleaseoftheship. He then added that the Master and the crew were being paid by them atthe timeof thevoyage. The next witness was Mr. Sawas Georghiades, an advocate 5 whowent toBeirut on the instructions of the plaintiffs, engaged a localadvocate,Mr.PetroShannan, heinquired about the reasons of the arrest of the ship, the claims against her, so that arrangements would be made for her release. He also went to Beirut where he visited the Port Authorities and the Authorities 10 also at the port of detention. He sent a telex to the defendants dated 20th November, 1979, (exhibit4),which ismarked on top «without prejudice», in which counsel Georghiades gives a full versionofeverythingthat came tohisknowledge and upon which they base their present claim, holding the defendant responsible 15 for the losssuffered bythem and asking him to urgently «confirm and inanywaythelatestby 11o'clock tomorrow, 21.11.79.» The defendant in answer to this sent a telex dated 21st November, 1979 in which he says «we deny liability, all documentsdulymade,destination Sourportasagreed. IfCaptain 20 ofshipasyourclientsinformed medelivered cargounlawfully not our responsibility.» The last witness for the plaintiffs was Mr. Petro Shannan, a practising advocate in Beirut, who testified that on request from Mr. Georghiades he studied the case and proceeded to obtain 25 the release of the vessel which had been seized by the Customs Authority and that ultimately hereached acompromise with them _. - - -—- -and thevesselwasreleased uponpaymentofpenaltyand customs fees. He produced a bundle of documents (exhibit 2) which consists of the following: the first is his account; the second isa 30 certificate issued bythe CustomsAuthoritiesthatthere wasa case and the case was compromised and that he paid a penalty and taxesand which isa translation of the third document which isin Arabic. The fourth one isa photo copy of the official receipt for payingthe penalty of 10,000Lebanese pounds, and the fifth one 35 isa receipt for the customs taxes paid by him. He then said that upon the payment of the amount in question the ship was released. I shall turn now to the evidence of the defendant himself. As regards the agent at Sour, he said that it was intimated by him 49 A.LolzouJ. LafltarlrJsBrosv.TanyaShipping U··!) becausetheonethattheplaintiffshadwaschargingtoomuchand hevolunteeredtointroducethemtoacheaperone.Hethensaid that the ship had to bringback the clearance documents to the effect that goods had been delivered and cleared through the Customsproperlyandthatultimatelythebillofladingcomesback also endorsed by the consignees totheeffect thattheyreceived thegoods.Thesedocumentscomebacktotheshipowners.This, ineffect, isthetotalityoftheevidencebeforeme. 5 Under the law of evidence, a distinction is made between originalandhearsayevidence.Theformerisusedtoindicatethe 10 evidenceofawitnesswhodeposestofactsofhisownknowledge whereas ifhisinformation isderived from other persons and he himself has no personal knowledge of the facts to which he deposes,thenhisevidenceissaidtobehearsay,whichisnot,asa generalrule,admissible.Ishallnotdealwiththeexceptionstothe 15 hearsay rule, as we are not concerned with them in this case. Moreover,statementsbypersonswhoarenotwitnessesmaybe either original evidence orhearsay.Theformer coversthecases wherethepointinissueiswhethertheyweremadeirrespectiveof whethertheircontentsweretrueorfalse.Suchstatementsarenot 20 tobetakenasproofofthetruthofthefactsassertedtherein.Inthe lattercasethereareincludedthestatementswhentheyareoffered toprovethetruthofthematterasserted.Inotherwords,thetestis thepurposeforwhichtheevidenceistendered. In the present case, the various documents were admitted 25 subjecttotheirauthorsbeingcalledaswitnessesortoputitmore generally, subject to their contents being rendered admissible evidence subsequently and not left as mere hearsay. It was a course not inconsistent withpermissible practice andpursuedin order to avoid unnecessary delay. (See Voniatis v.Koureasand 30 Another,
(1979)1CL.R.492atp.498).Inanyevent,attheendof the day and as a result ofthe failure of the plaintiffs to calltheir authors,thisevidencewhichwasobjectedtointhecourseoftheir production asinadmissible astotheircontentshastobe rejected nowthatIamconsideringmyJudgment, asaCourtofLawmust 35 arrive at itsJudgment upon legal evidence only. (See Ellinas v. Yianni,
(1958)23 CL.R. p.22, and Tilemahos Georghiades v. OdysseasPatsaiidesandAnother, 24CL.R.275atp.280). Inthe light of these authoritiesand discarding allinadmissible 50 1CUR. Lafkartti· Bra·,v.TanyaShipping A.LolzouJ. evidence, I have come to the conclusion that although the evidence adduced establishes that the plaintiffs' ship had been arrested on the 17th November, 1979, there is no admissible evidencetoprovdastowhyandonaccount ofwhosefault that 5 arrestwaseffected and,consequently,theplaintiffs'claimmustbe dismissedastheyhavefailedtoprovebyadmissibleevidencetheir claimagainstthedefendants. Before concluding, however, I would like to deal with a questionwhicharoseregardingthelegalrelationshipoftheMaster 10 ofthevesselinquestiontowardsthechartererandtheshipowners. ThecharterInquestion wasnotonebydemise.Theshipowners agreedwiththecharterertorenderservicesbyhismasterandcrew andtocanythegoodswhichhadtobeonboardthisshipbyoron behalf ofthecharterer. 15 20 25 - .- AspointedoutinScruttononCharterParties,18thedn.,Article 24,p.45: «In this case, notwithstanding the temporary right of the charterer to have his goods loaded and conveyed in the vessel, the ownership and also the possession of the ship remain inthe original owner through the master and crew, who continue to be his servants. Although the master, by agreement between the owner and charterer, may acquire authority to sign bills of lading on behalf of the latter, he nevertheless remainsinallother respectstheservant ofthe owner. (Sandeman v.Scurr, [1866] L.R. 2Q.B.86 atp.96; Braumwoli v. Fumess [1893] A.C. 8; ManchesterTrust v. Fumess, Withy& Co. [18951-2-Q.B. 539 (C.A.); and-seeArt.39> Inourcase,whatwasagreed upon wasavoyage charter asit 30 wasa contracttocany«lawfully general cargoupto700metric tons»onacjefined voyage,theremuneration ofthe ship-owners beinga«lumpsum-US$6,000,prepaidonsigningbilloflading.» (Seeexhibit 1).Thisagreementbringsitwithinthedefinition ofa voyagechartergiveninScruttononCharterPartiessupra,atp.49, 35 totheeffectthat«Avoyagecharter...isacontracttocarryspecified goodson a defined voyage orvoyages,theremuneration of the ship-ownerbeingafreightcalculatedaccordingtothequantityof cargoloaded orcarried orsometimesa lumpsum freight.»(The Eugenia, [1964]Q.B.226(C.A.)). 51 A.Lolzou J . Lefkaritis Brosv.TanyaShipping
(1987)The Master, therefore, was, for all intents and purposes, the servant of the owner and the fact that the plaintiff claimsto have instructed their Master that he should follow the directions of the chartererdoesnot,intheabsenceofanyagreementinthatrespect entered into bythe charterer, makehimtheservantofthelatteras 5 regards the question of compliance with the regulations and procedures atthe port ofdischarge. For all the above reasons, this action is dismissed, but in the circumstances, there willbe noorder astocosts. Actiondismissed withnoorderastocosts. 52 10