clr/1987/1987_1_513.pdf

(1)In the present case the reason that compels the plaintiffs to apply for the issue of a second warrant of arrest in their own caseisthatthey intendimmediately afterthe issue ofthiswarrant to apply for the appraisal and sale of the ship pendete lite, in view of the mountingexpenses necessitatedby thearrest oftheship in thefirstplace and the abandonment of the ship by the owners at the portof Limassol 2) The aforesaid factsamount to exceptional circumstances,justifying the issue ofthesecondwarrant ofarrest,moresoforacreditorwho has advanced 513 Cyprus Dev. Bank v. Ship SolPhryne

(1987)so much money and runs the n-.kotsustaining considerable loss i*notCo loss ofthfmoney advanced onthe security otiheship j moriydge Older accordingly Question 01 cosi·,re**er\ ed Cases referred to 5 Greyhound Shipping Corporation ι 7heShip .MIGHT) BHtl //--{198?) 1 C I R 862 Application. Application forthe issue ofa warrant ofthe arrest ofthe ship «SolPhryne» Ε Montanios for the plaintiffs applicants Cur ad\>vull STYLIANIDES J read the following decision Theplaintiffs by this action claim«1 The sum of C£256,229 27 togetherwith interest at 9% 15 per annum from 1/1/87 tothe date of payment being the amount dueandowing to them as mortgagees under a registeredmortgage onthe ship«SOL PHRYNE» dated 15/3/ 1985 2 Alland any other sum orsums that may become due and 20 owing under the above mentioned mortgage 3 Anyfurther or other relief 4 Costs» By an ex parte application filed on the 19th ofDecember. 1987, they apply forthe issue of awarrant of the arrest of the ship « S G L 25 PHRYNE» now lying at the portof Limassol The saidship isalready underarrestbyvirtue ofawarrant issued by another Judge of thisCourt in Admiralty Action No 230/87 in which the plaintiff isan electrician,member of the crew His claim is for454,000 00 (four hundred and fifty-four thousand) Greek 30 drachmas, ortheir equivalent in Cyprus pounds, for wagesand other benefits due to him In the affidavit filed in support of thepresent application, swom by the Manager ofthe Equity and Venture Capital Division ofthe 514 10 1 C.L.R. Cyprus Dev. Bank v. Ship Sol Phryne Styllanides J. plaintiff hank andaselaborated Ν thecounsel mthecourseofthe heanng, the defendant ship is registered in Cyprus and files the Cyprus flag Seventy - five members of the crew on 9/12/87 instituted 5 Actions Nos232 -306/87 against thevessel ana her owners and had caveats entered against the release of the vessel from arrest Thesaid members of thecrewclaimwagesandotheremoluments up to 4/12/87 which total about C£100,000 - (one hundred thousand Cyprus pounds) They further claim wages and other 10 emoluments for continued service on the vessel from 4th December, 1987, until the date of judgment Also, they claim repatnation expenses totalling C£10,000 -(ten thousand Cyprus pounds) and damages for termination of the contract of employment Theclaim of the crew increases by C£l,100 -(one 15 thousandand one hundred Cyprus pounds)about daily 20 Messrs C W Kellock &Co ,London Shipbrokers who are the appraisers of the English Admiralty Marshal,advised the plaintiffs, that from the records the value of thevessel is approximately in the region of U S $ 5 0 0 000 - (five hundred thousand U S dollars) The company -owners of the ship ceased in effect to operate and moved theiroffices from Limassol totheaddress c. the office of theiradvocate at Nicosia Their assets are of negligiu'? value As thememberof thecrew who hasarrested thevesstι maynot 25 decide toapply for thesaleof her untilafter he obtaii s judgment in hisaction which isfixed for appearancebefore Courton 12/1/ 1988, and thusthecrew's wages willincrease and nothingwill be left from the proceeds of sale towards satisfaction of the claim of the plaintiff bank, the plaintiffs for the protection of their own 30 interestswould apply toobtainassoon aspossible anorderforthe sale of the vessel by public auction pendete lite Such course would, also, be inthe interest of the guarantors This course isnot open totheplaintiffs, unless theshipisarrestedby awarrantof the Court in thisaction 35 Furthermore, the master of the vessel, Mr Kleanthis Vlahopoulos, by atelex, dated 18/12/87, attachedtothe affidavit, informed theplaintiffs thatthevessel has been abandonedby the owners The application isbased on the Rules of the Supreme Courtin 40 itsAdmiralty Junsdiction,Rules 50,51,54. 515 Styllanldes J. Cyprus Dev. Bank v. Ship Sol Phryne

(1987)Thisisan application for a second warrant of anvst ot tin- S.IMV ship. In Greyhound Shipping Corporation v. The Ship «MIGHTY BREEZE»

(1983)1C.L.R. 862, A. Loizou J. refused the issueof a second warrant, as nospecial circumstances were disclosed by 5 the applicants. He. however, cited with approval the relevant passagefrom theBritishShippingLaws.AdmiraltyPractice'.1°(VJ. para.

1. which reads as follows:«Where it is proposed to begin a second or subsequent actionagainstpropertywhichisalreadyunderthearrestofthe 10 court, a second or subsequent writ inrem must be taken out. But it is only if the second or subsequent plaintiff wishes to proceed tojudgment before the first plaintiff isreadytodo so thatthesecond orsubsequentplaintiff need takeoutawarrant of arrest and actually arrest the property for the second or 15 subsequent time. Save in such exceptional circumstances, all that isnecessary to prevent property being released without the second orsubsequent plaintiff, potential oractual, having the opportunity ofarrestingitin hisown action, istheentryof a caveatagainstreleaseandpaymentunderOrder75,rule 14, 20 to which reference willbe made later.» In the present case the reason that compels the plaintiffs to apply for the issue of a second warrant ofarrestintheirown case is that they intend immediately after the issue of this warrant to applyfortheappraisal andsaleoftheshippendete lite,inviewof 25 themounting expenses necessitated bythearrestoftheshipinthe first place and the abandonment of the ship bythe ownersat the port of Limassol. The aforesaid amount to exceptional circumstances, justifying the issue of the second warrant of arrest, more so for a creditor 30 who has advanced so much money and he runs the risk of sustaining considerable loss, if not total loss of the money advanced on thesecurityoftheship's mortgage. Foralltheabovereasonstheapplicationforthewarrantofarrest of the ship «SOL PHRYNE» now lying at the port of Limassol, is 35 granted. Noticeofsuch arresttobeserved on thesaid ship. The Marshal shall release the ship upon directions of the Registrar of this Court on the filing of a security bond by or on 516 1 C.L.R. Cyprus Dev. Bank v. Ship Sol Phryne Styltanides J. behalf of the ship in the sum of C£280,000.- (two hundred and eighty thousand Cyprus pounds) for the satisfaction of any order or judgment for the payment of money made against the ship or her owners inthis action. 5 As the first warrant of arrest was issued on the motion of a member of the crew for wages due, no order for payment of Marshal's expenses for the arrest and incidental thereto and no scurity was, also, ordered, the applicants - plaintiffs to lodge in Court thesum ofC£
2. -(twohundred Cyprus pounds) deposit 10 for any expenses which may be incurred by the Marshal in connection withthecustodyoftheshipwhileunderarrest, subject tothissum beingincreased later on. Lodge in Court any further amount that the Registrar of this Courtwillasktheplaintiffs todowithregardtotheexpensesofthe 15 arrest and failing tocomply within three days from such demand, the order of arresttobe discharged. Applicants -Plaintiffs to givesecurity inthe sum of C£5,
3. (five thousand Cyprus pounds) in the form of a security bound to the satisfaction of the Registrar or abank guarantee. 20 TheMarshalisrequiredtoreporttotheCourtbythelatest 10.00 a.m. on the 29th of December, 1987,with regard to the arrestof theshipandprobable coststobeincurredinconnection withsuch arrest. Thiscase isfixed forthe29th ofDecember, 1987,at 10.00 a.m." 25 for anyone to appear and if he so decides to move the Court against the continuance iriforce of the order of the Court made today ex-parte. Question of costs reserved. Order accordingly. 30 Application granted. 517