(1987)1987November27 (PIKIS.J| E N G I N E E R I N G & T R A D I N G J U R G E N SEYFERT, G.M.B.H . Plaintiffs, v. T H E SHIP «OMAR B., Defendant (Admiralty Action No 61/85). Admiralty — Judgments — Currency in which they should be issued — Liability of defendants fixed m Deutschmark — Judgment should be given in Deutschmark The out come of this case depended on the implications of the evidence adduced before the Court The factssufficiently appear in thejudgment 5 Judgment for the plaintiffs with costs Cases referred to Lamaignere (1975]3 AU Ε R 801. WilliamsandGlyn's Bank Inc v. Kouloumbis andtheShip«MARIA.
(1986)1 C.L R 627 10 Admiralty action. Admiraltyaction for D.M. 16,171. -balance due for spare parts, D.M. 45, 250.- monies paid by plaintiff for and on behalf of the defendants and D.M. 2,149. -chargesfor a letterof creditopened *5 in favour of the plaintiffs for goods supplied. A. Georghadjis, fortheplaintiffs. Counsel of defendant withdrew with the leave of the Court. Cur. adv. vult 518 1 C.L.R. Seyfert G.m.b.h, v.Ship «Omar B» PIKISJ. read the following judgment The plaintiffs, a German company, sued the defendant vessel«OMARB»for the recovery of: (
- a)DM 16, 171.- balance due for o a i e parts supplied by 5 plaintiffs to defendant. (
- b)DM 45, 250. - monies paid by plaintiffs to a German manufacturing concern, namely, Storm, for and on behalf of the defendant,and (c)DM2,149. -chargesforaletterofcreditopened infavourof 10 the plaintiffs for goods supplied. Theplaintiffs areafamily companybasicallyowned and runby Mr.HeinrichSeyfert, aCivilEngineer.Thecompany dealsmainly in the sale of spare parts of diesel engines and operates in Germany and abroad. 15 Thedefendant vesselisownedbyMr.Bachache and Mr.Sayes, Lebanese nationals. In January 1984 the engine of the vessel broke down when thevesselwasatthe sea port of Limassol.The ownersapplied toMr.Papalos,theownerand Managerofalocal ship repair company, namely, Marpa Ltd., for advice and 20 assistance. At their request he inspected the engine of the vessel and found out it was seriously damaged. The crankshaft and bearingswereburnt.On hissuggestion theservicesofMr.Seyfert weresought. Hebroughttheownersof thevesselandMr.Seyfert together. What took place on that and subsequent occasions between them isthe subject of dispute. or ID It is the case for the plaintiffs that an agreement was struck betweenplaintiffs anddefendants throughthemanagement ofthe twocompanies,thatplaintiffs should(a)supplyneededspareparts for the repair of the engine, and (
- b)arrange for the supply by ,A) German manufacturers of a reconditioned crankshaft and the services of German experts for the installation of the crankshaft and the repair of the engine. Inthe context of thisagreement he entered on behalf of the defendant into an agreement with German manufacturers, namely, Storm, whereby they would 35 supply a reconditioned crankshaft and experts for its installation and therepairoftheengine ontheundertakingcftheplaintiffs to meet the cost of the crankshaft and the expenses of the two engineers detailed to install the crankshaft and oversee the repaid of the engine. In the absence of the undertaking of the plaintiffs, 519 PUd* J. Seyfert G.m.b.h. v. Ship «Omar B-
(1987)they were unwilling to supply either the crankshaft or technical services. The plaintiffs agreed to give the undertaking after prior agreement with the owners of the defendant vessel who would in turn recompense them for any expense incurred on their behalf. Following their agreement with defendant, the plaintiffs 5 supplied spare parts and made the necessary arrangements for provision by the German company Storm of a reconditioned crankshaft and technical services for its restoration and repair of theengine. Defendants failed, inbreach of theiragreement, topay part of the cost of spare parts and reimburse the plaintiffs for 10 monies paid toStorm for thecrankshaft andservicesrendered by two Germanengineers in theemployment of Storm who came to Cyprus and supervised the installation of the crankshaft and the repair of the engine. Defendants refuted liability to plaintiffs on any ground. Intheir 15 defence they denied entering into any agreement with the plaintiffs, either for the supply of spare parts or their reimbursement for machinery and services supplied by Storm. The repairs to their vessel were undertaken and carried out, as alleged in the defence, by a local repairer meaning, without 20 naming them, Merpa Ltd., the only concern with which they entered intoany form of agreement respecting the repair of their vessel. Notwithstanding the denial of any contractual liability with the plaintiffs, they raised an alternative defence contending thatin the event of their being found liable at all to the plaintiffs for any 15 amount, the latter were answerable for damage suffered by the defendants on account of theirnegligence incarrying out repairs totheirvessel.Thedefence does notindicate theorigin of theduty of care owed tothe defendants orthe circumstances under which the plaintiffs assumed the repair of theirvessel.Notonly itishard 30 to reconcile the alternative defences but to an extent they contradict one another. The plaintiffs disputed the counterclaim and denied any liability to the defendants for the repair of the vessel solely and exclusively undertaken by German manufacturers inthe circumstances indicated above. 35 When the case came upfor hearing, counsel for the defendants applied for leave to withdraw for the reasons indicated in the minute of the Court of 19th September, 1986. We need not go intothose reasons, except notethatleavewas granted to advocate G.Sawides towithdraw. Defendants appointedanotheradvocate 40 to represent them, namely, M. Georghiou.And every opportunity Λ20 1 C.L.R. 5 10 15 20 Seyfert G.m.b.h.v.Ship«Omar Β» PikisJ. was giventothenewly briefed counseltcacquainthimself withthe case and prepare for the trial. Indue course the Court embarked on the hearing of the action. Two witnesses testified for the plaintiffs, Mr. Seyfert and Mr.Papalos; and plaintiffs closed their case.Whereupon evidence was letinbythedefendants insupport of their case. Specifically Mr. Mohamad Uachachewas called to the stand and counsel for the defendants began eliciting his testimony. Before the completion of examination-in-chief. the case was adjourned on the application of defendants in order to afford them opportunity to amend the answer and counterclaim. An application for amendment was made in due course. It was opposed by theplaintiffs; whereupon adatefor hearingwas given. Before the hearing of the application, counsel for the defendants applied for leavetowithdraw on accountof lack of interestonthe part of his client in the fate of their case. Leave to withdraw was granted and the case was fixed afresh for a continuation of the hearing, there being no other alternative in the circumstances. Directions were given that defendants should be notified of the date of hearing and of their right to appear and make their defence. Counsel assured the Court that these directions were broughttothenoticeof atleast oneoftheowners of the defendant vessel. Nontheless, they failed to appear. Thereupon I invited arguments from theplaintiffs astotheimplicationsof the evidence adduced, including the uncompletedtestimony of Mr.Bachache. 25 Counsel invited me to give judgment for the plaintiffs on the strength of the testimony adduced in support of their case. The testimony of Mr. Seyfert is to the effect that following the agreement between theparties, spare parts were supplied tothe defendants, a fact evidenced, inter alia, by the documentary 30 evidence adduced before the Court, whereas the undertaking given to Storm was duly honoured.The defendants in breach of their agreement failed to meet the costs of spare parts and repudiated the agreement to reimburse the plaintiffs for the moniespaid toStorm. Mr.Papalos confirmed inpractically every 35 material respect the testimony of Mr.Seyfert, firmly refuting the suggestion of the defendants that his company was paid for any goods andservicessupplied by theplaintiffs orthroughtheagency of the plaintiffs. In his testimony before the CourtMr. Bachache maintainedthathe stopped payment of moniesdue forthe supply 40 of the crankshaft and technical services associated therewith, as well as the repair of thevessel, upon noticing thatthevessel had 521 Pikis J . Seyfert G.m.b.h. v. Ship «Omar B» {1987) not been properly repaired, the cause of damage to the defendants. The fact that his evidence was incomplete, makes difficult its appreciation in proper perspective, whereas the absence of an opportunity of cross-examination neutralizes its cogency. I am 5 disposed to attach no weight to it. The documentary evidence adduced reinforces the evidence of both Mr. Seyfert and Mr. Papalos and tends to establish the existence of a contractual relationship between plaintiffs and defendants along the lines indicated by Mr. Seyfert. Moreover, it contains material from 10 which itcan be reasonably inferred thatplaintiffs hadnopartinthe contractual arrangements between Storm and the defendants other than agreeing to meet the cost of payment on the express agreement thattheywould bedulyreimbursed by the defendants. I find theclaim of theplaintiffs under(a)and (b)duly proven. On 15 theotherhand,theevidence isinconclusive astotheliability of the defendants for the payment of charges for the letter of credit, totalling DM2,149.- That part of their claim will be dismisseu, as wellas thecounterclaim which is totally unsuported by evidence. Ittranspires form theevidence before theCourtthattheliability 20 of the defendants was fixed in Deutschmark, the currency of the contract. This being the case, it is appropriate that judgment should be given in Deutschmark*. Judgment ishereby given for theplaintiffs for DM 61,421.- orits equivalent in Cyprus pounds. Defendants are further adjudged to 25 pay the costs of the action and counterclaim; save that where litigation for the claim coincided with litigation for the counterclaim, one set of costs should be recovered. Judgment forplaintiffs for D.M.61,421.- with costs. * Lamaignere [197513 All £ R 801; Williams& Clyn sBank Inc.ν PaneyiotisKouloumbis and the ship *MARIA.
(1986)1 C.L R 627. 522 30