(1987)1987December19 ISAWIDES J 1 SOCOMAR LTD, Plaintiffs ν 1 THESHIP «ARIBEL» 2 THESHIP-LUCKYTRADER-, 3 OREOSA NAVIGATION COMPANY LTD, 4 ANDREAS STOYIANNOS, 5 STAMATIOS STOYIANNOS, Defendant·, (AdmiraltyAction No 164/80) Admiralty — Transportationof goods — Breach of contract relating to such transportation— Conversion ofsuchgoods—Denial ofplaintiffs'ownership ofgoods—Burden ofprovingsuchownershiprestsonplaintiffs'shoulders— Inthiscaseitwas dischargedby the productionof the Billofleading Theplaintiffs' goods,acargoof4,979cartonsof cigarettes,were loadedat 5 the port of Lisbon on theship «LUCKY TRADER» for transportation from Lisbon to Bulgana The said goods were unloaded from the ship «Lucky Trader* which was arrested in Piraeus and loaded on defendant 1 ship at Piraeus by defendants 3 for transhipment to Bulgana Defendant 1 ship insteadof takingthesaidgoods toBulgana,sailed within thetemtonal waters 1 0 of Cyprus where she startedunloadingunlawfully partof thecargo She was arrested by the authoritiesfor smuggling After steps taken by defendants 1 the cargo was delivered tothemandsold by themtothirdparties As a resulttheplaintiffs broughtthisactionclaimingdamages forbreachof contractand/orconversion Theactionas against Defendants2,4 and5was withdrawn Defendants1and3deniedbytheirdefencethattheplaintiffs were theowners of thegoods inquestion Held,
(1)Theburdenof proving ownership of theaforesaid cargorestson plaintiffs' shoulders The plaintiffs discharged It by producing the Bill of Ladingissued by the defendants
(2)Thefacts establish theclaimof theplaintiffs forbreachof contractforthe 504 15 20 1 C.L.R. Socomar Ltd.v.Ship«Aribel» transportation olgoodsandunloadingofsametftBourgas.Bulganaand.also for wrongful conversion ofihe goods Judgment fortheplaintiffs with costs 5 Admiralty action. Admiralty action forU.S. $600,000 asdamages forbreachof contract and/or for conversion. St. McBride, forplaintiffs Noappearance fordefendants 1and
- 10 Cur.adv. vult. SAWIDESJ.readthe followingjudgment.Thisaction isonein rem against theship «ARIBEL», defendant 1,andin personam against defendants 3asownersofdefendant 1ship and theclaim is, according tothepetition, for U.S. $600,000, asdamagesfor 15 breach ofcontract and/or for conversion.Three other defendants were joined in these proceedings and in particular, the ship «LUCKY TRADER» as defendant 2 Andreas Stoyiannos and Stamatios Stoyiannos as.defendants 4 and 5 respectively as shareholdersand/orDirectorsofdefendants
- Inthecourseofthe 20 proceedings however, the action was withdrawn against defendants 2,4and5whocould notbeserved and against whom thewritinthemeantimeexpired. Defendant 1 shipwasarrestedin the course of the proceedings and subsequently sold bythe Marshal under an orderofthe Court and the proceeds ofthe sale 25 amountingtoU.S.$9,000lessMarshal'sexpenseswere deposited into Court. The facts of the case as alleged in the petition are briefly as follows: Plaintiffs area corporation registered intheU.K. Onorabout 30 the29th December, 1978,acargo of4,979 cartons of cigarettes was loaded by plaintiffs atthe port ofLisbon onboard the vessel «LUCKYTRADER», property ofdefendants 3, forcarriage from Lisbon toBourgas, Bulgaria. ABillofLading covering the cargo was issued by the masterofthe vessel «LUCKYTRADER»on the 35 26th January, 1979 and was delivered tothe plaintiffs* agentsat Lisbon. Inbreachofthecontractofcarriageofthecargothevessel 505 SawldcsJ. Socomar Ltd.v.Ship «Aribel.
(1987)«LUCKY TRADER» was ordered by defendants 3 to call at Katakolon, Ilias, Greece, instead of proceeding to Bourgas. The vessel sailed in the port of Katakolon and when itarrived there it wasarrested byhercrewforwagesdue.Negotiationsbetween the plaintiffs and defendants 3 for settlement of the claims against 5 «LUCKYTRADER»toenableittoproceed toBourgasfailed, asa result of which litigation started in Greece. Whilst such litigation waspending, defendants 3appliedthroughtheiragentsinGreece totheCustomsAuthorityofPiraeus,forleavetotranshipthecargo on defendant 1shipforthepurpose of completingthevoyageto 10 Bourgas. The cargo with the leave of the Greek authorities was transhipped on defendant 1ship and on 30.7.1980 defendant 1 sailed from Piraeus with destination Bourgas. Defendant 1 in breach of the implied contract of carriage which had arisen after transhipment on board of the cargo instead of proceeding to 15 Bourgas disappeared and on or about 17.8.1980 was apprehended by the Cyprus Police near the coast of Cyprus, disposingoftheplaintiffs' cargosecretly.Theownersof defendant 1shipafterrepresentationstotheCyprusauthoritiesthatthecargo belonged to them and after payment of the fine imposed by the 20 Cyprus Customs as penalty for the offence of smuggling, succeeded in having the cargo delivered to them which they subsequently sold to a third party who transported same away from Cyprus. The value of the cargo, according to the petition, wasU.S.$600,000. 25 By their defence, defendants 1 and 3 denied generally the allegation contained inthepetition and alleged that thecargodid not belongtotheplaintiffs and therefore theplaintiffs hadnoright on the cargo and also that the present action was unfounded, groundless,frivolous andvexatious. 30 After anumber ofadjournments ofthehearingattherequestof counsel appearing for both parties, in view of negotiations for settlement, the action was finally fixed for hearing on the 14th May, 1987 when counsel for the defendants applied for leave to withdraw from the caseon the ground that though he repeatedly 35 informed the defendants about the hearing, they failed to communicate with him. The hearing was adjourned to the 14th September when counsel for plaintiffs applied for leave of the Court to prove the claim by affidavit evidence. The application 506 1 C.L.R. Socomar Ltd.v.Ship «Ailbel» S a w t d e e J. was granted and the action was fixed for hearing on the 7th Decemberwithdirections thatdefendants 3 should be notified by theplaintiffs ofthenewdateofhearing.Suchnoticewasservedon defendants 3 on 21st September, 1987 but nevertheless 5 defendants 3 failed to appear. Toprovetheirclaimplaintiffs filedanaffidavit swombyMr.S.G. McBride, advocate for plaintiffs, attached to which there was a number ofexhibitsincludingtheoriginalBillofLading,the official "certificate of the Customs of Piraeus that the cargo described on 10 the Bill of Lading was transhipped from the ship «LUCKY TRADER» on defendant 1 ship, and copies of newspapers in Cyprusastothearrestoftheship«ARIBEL»bytheCyprusPolice for smuggling. Furthermore, the value of the goods was reduced to U.S. Dollars$550,000, which according to the affiant was the 15 insuredvalueofthe goods. Before embarkingonplaintiffs' claim,Ishalldealbrieflywiththe defence filed on behalf of the defendants. The only material allegation advancedisthatthegoodsinquestion didnotbelongto the plaintiffs. By virtue of such allegation the ownership of the / o goods isan issueposing before me placingthe burden upon the plaintiffs to prove such ownership. Plaintiffs bytheproductionof the Bill of Lading issued by the defendants have proved the ownership of the goods. The defendants have not adduced any evidence tocontradictsuch fact. 25 Havingbeen satisfied thattheplaintiffs haveproved ownership of the goods Ishall proceed to examine whether their claim for damages for non-delivery and/or conversion of the goods has been substantiated. On the evidence before me I am satisfied that the goods in .0 question were shipped on the ship «LUCKY TRADER», the property of defendants 3 for transportation from Lisbon to Bulgaria. The said goods were unloaded from the ship «LUCKY TRADER»whichwasarrestedinPiraeusandloadedon defendant 1 ship at Piraeus by defendants 3 for transhipment to Bulgaria. 35 Defendant 1 ship instead of taking the said goods to Bulgaria, sailed within the territorial waters of Cyprus where she started unloading unlawfully part of the cargo. She was arrested by the authorities for smuggling. After steps taken by defendants 3 the cargowasdeliveredtomemandsoldbythemtothirdparties.The 40 above facts establish the claim of the plaintiffs for breach of 507 SawidcaJ. SocomarLtd. v.Shlp«Aribel»
(1987)contract for the transportation of goodsand unloading ofsame at Bourgas, Bulgaria andalsoforwrongful conversion ofthe goods. Accordingtotheaffidavit filedthevalueofthesaidgoodswasU.S. Dollars $550,000. In the result Igivejudgment for plaintiffs against defendants 1 5 and 3 for U.S. Dollars $550,000 or its equivalent in Cyprus Pounds, with costs.Coststobe assessed bythe Registrar. The action against defendants 2, 4 and 5 stands as already dismissed. Judgment againstdefendants J and3 forU.S.$550,000 with costs.Action agains defendants 2, 4 and5 dismissed 508 10