clr/1987/1987_1_583.pdf

(1)— Whetheramareva injunction can beissuedinrespectofavessel out of thejunsdtction — Questiondetennined ,n thenegative notwithstanding thattheshipinquestionwasregisteredinCyprusand wasowned by aCyprus Company Injunction —Interlocutoryinjunctions— TheCourtsofJusticeLaw, 14/60— The proviso tosection 32

(1)—An applicantmustsatisfytheCourtthathe hasa visible chanceof success — Claimfordamagesforbreachof contactby a personrescindingthecontract—Questionwhethersuchaperson isentitled in the absence of fraudulentrepresentation to claim damages was not examined — Moreover, the damages were not quantified — Groundsfor reversingadecisiongrantingan interlocutoryinjunction Interpretation ofStatutes—English Statutesinpanmateria withaCyprusStatute — Whetherinconstruingthe latter, theCourtmay resorttoEnglishauthonues interpretingtheformer— Questiondeterminedintheaffirmative 20 ^ Injunctions—Interlocutoryinjunction— The CourtsofJusticeLaw 14/60—The proviso tosection32(1} — TheMerchantShipping (Registration, Salesand Mortgages)Law, 1963 (45/63). section 30 — The lattershould not be circumventedbyan application underthe former Precedent,doctrineof — Stare decisis— Decisionsof Court of co-ordinating jurisdiction—Persuasiveforceof—Diminishes,ifCourtthinksthattheywere wronglydecided 583 Pastella Marine v. Iranian Tanker

(1987)Theappellants,aCyprusOffshore Company,agreedtoselltheirvesselM/T Burmpac Bahamas, a vessel registered inthe Cyprusregisterofships,to the respondents,atthepnceofUS $ 9,950,000 The agreement provided for an obligation on behalf of the buyers (respondents) to deposit with the solicitors of the vendors (appellants) in London 10%of thesalepnce 5 On 25 9 85 the respondents sought to withdraw from the contract for alleged failure on thepartofthevendors toimplementtwoofthecontractual terms The respondents intimated theirdecision towithdrawbyatelexdated 25 9 85 Sequentially they demanded the return of the said deposit (US $ 10 950,000), reserving theirnghttoclaimdamages for breach of contract However, on the same daythe respondents instituted anAdmiraltyAction against the appellants seeking (a) a declaration that they were entitled to possession and ownership oftheshipproperlyclassed, (b)an order directing the vendorstotransferthevesseltothebuyers,and(c)damagesforbreachof 15 contract The institution of judicial proceedings on the part of the buyers was accompanied by an application for an injunction restraining the defendants from parting, mortgaging,orinanywayalienatingtheirinterestinthevessel Anorder wasmade exparte inthetermssuggested bythebuyersreservinga 2 0 nghttothevendorstoopposetheapplicationinduecourseafterserviceupon them of the proceedings The vendorsopposed the application Having decided that no ordercould be made under s 4

(1)of Cap 6, the learned Judge proceeded to examine whether an order wasjustified under 2 5 eitherorbothoftheremaininggroundspropoundedinsupportofthemotion, namely s 30 of Law45/53 ands 32

(1)of Law 14/60 The trialJudge concluded thattheapplicabilityofsection 30of Law45/63 isnot confined to petitionershavingan interestinthevessel herself and that a fair construction of its provisions warranted its invocation by any creditor 3 0 including orie in the position of the plaintiff suingthe owners of the ship for unliquidated damages Inthisrespectthetrialjudge feltfree todepartfrom a series of first instance judgments of the Supreme Court on the ground that theywerewronglydecided Moreover,thetrialJudgeconcluded thatanorderinthenatureofamareva 3 5 injunction couldbemade,notwithstandingthatthevesselinquestionwasout of thejunsdiction becauseasthe remedyisanequitableoneand equityacts inpersonam, Itmatters notthatthepropertyinthe control ofthe defendants (appellants) was outside thejurisdiction, solongasthose towhom the order isaddressed can appropriately be restrained from partingwiththe property 4 0 584 1 C.L.R. Pastella Marine v. Iranian Tanker As a result the intenm order granted ex parte was made absolute Hence this appeal 5 10 15 Held,allowing theappeal (A) Per Tnantafylhdes. Ρ, Kourns.J. concurring (

1. a)In the light of the similanty between section30 of Law 45/63 and section 30 of the Merchant Shipping Act. 1894 in England, the case law of our Supreme Court correctly followed the approach in England to the interpretation of section 30 of the Merchant Shipping Act. 1894. with the result that it is necessary forthe person seeking an order under section30 of Law 45/63 to have an interest in the ship concerned (b)A «Mareva Injunction» could not be made on the present occasion as it relates to a ship which was at the matenal time outside thejunsdiction of our Supreme Court (c)Moreover, where itisnotpossible in law tomake an orderunder section 30of Law 45/63, itsprovisions ought not tobecircumventedby makingsuch an order under section32 of Law 14/60 (B) Per Pikis. J., Koums. J. concumng: (
2. a)Resolution of the issues in this appeal requiresthis Court toexamine the ambit andcompass ofboths. 30 of Law 45/63 ands.32

(1)of U w 14/60. 20 *^*3 (

1. b)The tnal Judge concluded that the crucial expression in section 30 of Law 45/63 «ενδιαφερόμενον πρόσωπον» («interested person») encompasses by the tenor of its meaning every creditor and not merely one with an interest in the ship herself. The word «interest» andvanations of it encountered in a legal framework are apttodenve theirprecisemeaning fromthecontext inwhich theyappear. The expression «interested person» is not synonymous with «plaintiff», •petitioner», «litigant». Had the legislature intended to extend the remedy conferred by s 30 to every creditor of the owners of the ship, one would expect them to adopt a word other than «interested person», for example a plaintiff, apetitioner orlitigant. oy} The distinction made by the law between persons having an interest in the ship herself and other creditors is not an arbitrary one. A ship has, in many respects, a personality of her own, a position reflected in ihe principles of Admiralty law that clearly distinguish between the liabilities of the vessel and her owners. 35 (
2. c)Section 32

(1)of the Courts of Justice Law reproduces s. 37

(1)of its predecessor, the Courts ofJustice Law, Cap. 8. In Polish Ocean Lines and Another v. Spyropoullos and Another, XX Part II C L.R. 73, the Court held that the power to make aninterlocutory injunction unders.37

(1)is confined to ordersaffecting the subject matter of theproceedings. 585 Pastella Marine v. Iranian Tanker

(1987)The reasoning of that judgment was exclusively founded on the interpretation accorded by English Courts to corresponding English legislation With the disapproval of that line of authonty by subsequent Englishdecisions it can be arguedthat the foundation ofthe reasoning ofthat case has gone 5 The judgment in that case cannot stand in the way of re appraisal of the ambit of the remedy conferredbv the proviso tos 32

(1)of Law 14/60 Such re-appraisal earned out «,ith hiiHlsi.jhi of developments in English case law and the illumination ot the question in those cases justifies departurefromthedecisioninPolishOceanLines The wordingoftheproviso 1 0 tos 32

(1)does notput itbeyondthepurview ofthelaw toextend the remedy to assets other than the subject matter of the action Its histoncal background and the intnnsic nature of the remedy codified thereby provides additional reasons for the broader view ofs 32

(1)The discretionof the Court tomake aMareva Injunction mustbeexercised with great circumspection and always with due regard with the specific aims of the law, notably an aid to the process of execution designed to forestall action likely to undermine the efficacyof thejudicial process The object of aMareva Injunction is not to provide uncovenanted secunty to an unsecured creditor More consequentially for the outcome of this appeal,itwas decidedinAstiamν Koushi

(1986)2All Ε R 970 thata Mareva Injunction can only issue with regardtoassets within thejunsdiction The tnal Judge overlooked that the vessel being out of the junsdiction could not be seized in execution and for that reason could not be associated with the objectives of a Mareva Injunction The vendors might, no doubt, be pressured because of the order, but exertion of pressure to meet a possible judgment in the cause is not a legitimate objective of an interiocutory injunction In that situation the order would notserve toprohibit thespecifiedconduct,theobjectofan injunction but bnngabout positive action throughthe medium of an intenm order 15 20 &* 30 A Mareva Injunction associated as it is with the efficacy of the process of execution, isproperly limited to assetswithin thejurisdiction (d)There was an element ofcontradictonnessinthecaseofthebuyers, who appeared to approbate and reprobate their agreement with the vendors depending on their immediate pursuits Their deposit was and still is in the 3 5 handsofthefirmofsolicitorswho haveundertaken torefundthemoney ifthe buyers are successful in proceedings contemplated by the parties in their agreement One of the reason for which the order had been made was to provide secunty for the refund of the deposit money There was no justification for the order on that account ™ 586 1 C.I..R 5 Pastella Marine v. Iranian Tanker \ hurdle that the person invoking the proviso to s 32

(1)must necessanly overcome isto show that hehasavisible chance of success Inthiscase,the trialJudgedidnotexaminethequestionwhether,intheabsenceoffraudulent representation, a person rescinding a contract is entitled to-damages and. mortfov*?r. ihe respondentshadnot quantifiedtheclaimfor damages It follows that this appeal would succeed, even assuming that there was powt/r to issuetheintenni order applied for 10 (Q Pfi Demetnades. J Inthe lightofthefactsofthiscase,thisappealmust succeed, but Ihave certain reservation astowhether anorder under section 30 will not be made incasesinwhich aship registeredandflyingthe flagof Cyprus whether lying in a Cyprus port or abroad, is the subject of an Admiralty action tor questions or claims provided by section 1 of the \dminis!ratmn olJusticeAct. 1956. 20 (D) Per Sawides. J (a) Section 30 has been judicially considered and "i?rpreti.'d in numerous decisions of this Court which with the exception ot the caseof theship «GEORGHIOS C»and Another v. MitsuiSugarLtd and Another

(1976)1 C L R 105at 109were firstinstancedecisionsof thisCourt mtlu'i-vt-rciseof itsonginalAdmiraltyJunsdiction.InGeorghiosC (supra)the Court of Appealrefrainedfromgivingadefinition of thepersonswho qualify as«interestedpersons»inthecontext of s.30 25 I am inagreement and1 fully subscribetotheinterpretationgiventos.30 intheabovecasesandIhavenodifficulty mconcludingthatitisnecessaryfor a person seeking an order under s. 30 to have an interest in the ship as explained in the aforesaid cases and not be a mere creditor or claimant of damagesandthattherespondentsinthisappealdidnothavesuchaninterest 15 and.therefore,aninjunction under s.30couldnothavebeenmadeandwas wrongly granted 30 (b)Though the ambit of the Mareva injunction iswide, no authority was traced in support of the view that a ship not within the jurisdiction but registeredandownedby acompany registeredwithin thejurisdiction canbe thesubjectofaMarevainjunction. 35 BeannginmindthefactthattheMarevainjunctionasdevelopedappliesto assetswithinthejurisdiction,inthecircumstancesof thepresentcaseit could not be made against a ship which at the material time was outside the jurisdictionoftheCourt. 40 (c) In exercising itsgeneral powers under s 32

(1)of Law 14/60 a Court should bear in mind the provisions of s. 30 of the Merchant Shipping Act which are special provisions empowering the Court to make orders prohibiting dealingswithships, in the exercise of itsdiscretionwhether itis «justandconvenient*tomakeanorderunders.32. Appealallowedwith costs 587 Pastella Marine v. Iranian Tanker (19S7) Casesreferred to DST ν Raknoc [1987)2All ΕR 769 Cyprus Palestine Platationsv Olivierand Co. XV1CLR 122, The ship Georgh'os C and Another ν MitsuiSugar Ltd and Another

(1976)1 C L R 105, 5 Frangosand Others ν TheRepublic[ 1982)3 CLR 53, Tokyo Manne and FireInsurance ν Fame shipping Co Ltd

(1976)1 C L R 333, Aigemeen VrachtkantoorBv and Others ν Sea Spint Navigation Co Ltd

(1976)1 C L R 368, Botteghiv Bolt Head Navigation

(1985)1C L R 114, 10 Mistriis ν Jaber

(1978)2J S C 304, Polish Ocean Unes andAnother ν Ν Spyropoullos andAnother. 20 (Part II) C L R 73, LadupLtd ν Williamsand Glyn's Bank11985}2All ΕR 577, 15 Roy ν Hamiltons and Co

(1867)5M 573, McPhailv Hamiltons and Co

(1878)5R 1017, Nipon Yusen ν Karageorghis[1975]3 All ΕR 282, MarevaCompania SΑ ν InternationalBulkamers SA [1980} 1All Ε R 213, 20 RasuMantimaν Pertambangan [1977}3All ΕR 326, TheSiskina[1977]3 All ΕR 326, Allen and Others ν Jumbo Holdings andOthers [1980]2All ΕR 502, BarclayJohnson ν Vu;//[1980]3 All ER 190, 7he77)ir£/C7)an£/ns(1979]2AIIER 972, 25 NemitsasLtd ν SandS MantimeLtd and Others

(1976)1CLR 302, Unmare Shipping Co ν Roustam

(1979)1CLR 37, ThePortlmk [1984}2 Lloyd'sRep 166, Nmemia ν Trave[1984] 1All ΕR 398, Astiam ν Koushi [1986]2 All ΕR 970, 588 30 1 C.L.R. Pastella Marine v. Iranian Tanker Odysseosv A Pens and Another {1982)1C L R 557, \Zerolme Dock and Ship Building Co Ltd ν Lamar Shipping Co Ltd

(1975)11 J S C 1618 5 Eastern Mediteranean Mantime Ltd ν Nava Shipping Co Ltd

(1975)5JSC666, Gerlmg Konzem Allgememe Versicherungs A G (No 1) ν The Ship -DIM1TRAK1S.and Another {1976) \ C L R 385. London and Overseas(Sugar)Co and Another ν Tempest Bay Shipping Co Ltd and Others

(1978)1 C LR 367. 10 BotteghiSPA ν Bolt Head Navigation Co Ltd

(1985)1C LR 114, Compama Portuguese De TransportesMantime of Usbon ν Sponsalla Shipping Company Ltd

(1987)1C LR 11 Appeal. Appeal by respondents -defendants against the decision of a 15 Judge of theSupremeCourtofCyprus initsAdmiralty Jurisdiction (Loris,J.){AdmiraltyAction No212/86)* given on the29th April, 1987 restraining them from operating, mortgaging or in any way alienating theirinterest intheship «Burmac Bahamas». P. SarriswithP. Gross, for the appellants. 20 L. Papaphilippou with L. Christodoulidou (Miss), for the respondents. Cur, adv. vult. The following judgments were ivau 25 TRIANTAFYLLIDESΡ :Inview of the adequate and elaborate mannerinwhich mybrotherJudge PikisJ. hasdealtwith boththe legal and factual aspects of thiscase inhisjudgment, which Ihave perused inadvance, I shall give myjudgment rather briefly. Ihave had no difficulty in reaching the conclusion thatsection 30 of the Merchant Shipping (Registration of Ships, Sales and •Reportedto

(1987)1 CLR 120 589 Triantafyllides P. Pastella Marine v. Iranian Tanker

(1987)Mortgages) Law, 1963 (Law 45/63) is substantially similar to section 30 of the Merchant Shipping Act, 1894, in England, and, consequently, the case-law of our Supreme Court, as it has developed til!now regarding the interpretation ofthesaid section 30 of Law45/63, hascorrectly followed the approach inEngland 5 to the interpretation of section 30 of the Merchant Shipping Act, 1894, with the result that itisnecessary for the person seeking an orderundersection30ofLaw45/63tohaveaninterestintheship concerned; and as the appellants did not, in the present instance, have such an interest in the ship in question it follows that the 10 appealed from injunction could not have been made by the trial Judge the said section

1. Asregardsthe making ofthesaid injunction under section32of theCourts ofJustice Law, 1960 (Law 14/60) there cannot be any doubt that itisan order in the nature of a «Mareva Injunction», as 15 ithascometobeknown bothhere and inEngland;and inthelight of the exhaustive review of relevant case law, of which we have had the benefit during the hearing of this appeal, including the recent case of D.ST. v. Raknoc, [1987] 2 All E.R. 769 · which, however,isdistinguishable from thepresentcaseonthebasisofits 20 own facts - I have reached the conclusion that a «Mareva Injunction» could notbemadeon thepresent occasion asitrelates toashipwhich wasatthe materialtimeoutside thejurisdictionof ourSupreme Court. Moreover, Iaminclined totheviewthatwhere,asinthepresent 25 instance,itisnotpossible inlawtomakeanorderundersection 30 of Law 45/63, its provisions ought not to be circumvented by making such an order under section 32 of Law 14/
2. In the result this appeal should be allowed but Iwould like to conclude by stating that 1reject as unwarranted the criticism 30 advanced by counsel for the appellants against the way in which the learned trial Judge has dealt with the issues before him because Iam of theviewthathehasconscientiouslytriedtoreach a correct inhisopinion conclusion in averydifficult situation and without having the help of the lengthy legal arguments which we 35 heard inthis appeal. PIKISJ.:Theappellants,aCyprusoffshore company, hereafter referred.to as the «vendors», are the owners of M/T Burmpac Bahamas, a vessel registered intheCyprusregisterofships.They agreed tosell the vessel to the respondents, hereafter referred to 40 590 1 C.I .R. Pastella Marine v. Iranian Tanker Pikis J . as «buyers» The agreement was concluded on 4th August, 1986 and provided for the sale of the ship at US$9,950,000 subject to terms and conditions embodied in a wntten contract of the same date evidencing the transaction between the parties The 5 agreement provided that delivery would be effected atthe endof August, aterm vaned bytheagreement ofthe parties, postponing thedaytoadateinSeptember Itwasatermoftheagreement that delivery would be accompanied by an appropnate certificate of classification ofthevessel,asprovided intheagreement, issuedby 10 the Amencan Bureau of Shipping Three other terms of the agreement thatdeservespecific mentionare(a)theobligationcast on the buyers to deposit with the solicitors of the vendors in London 10% of the sale pnce, (b)applicability of English law as the law of the contract, and (c)an arbitration clause pnviding for 15 reference to arbitration in London of any dispute ansmg m connection «withtheinterpretation andfulfilment ofthiscontract» 20 25 30 35 40 On 25th September, 1985,thebuyerssoughttowithdraw from theagreement forfailure onthepartofthevendorsto implement two terms of their contract (a)deliver the vessel atthe appointed time,and (b)failure todeliveritproperly classified asprovided in the contract of the parties They intimated their decision to withdraw by a telex addressed to the vendors on the aforementioned date Sequentially they demanded return of the deposit of US$950,000 reserving a nght to claim damages for breach of contract On the same day the buyers initiated the presentproceedingsagainstthevendorsseekingadeclaration that (a)the plaintiffs were entitled to possession and ownership of the ship properly classed, and (b) an order directing the vendors to transfer the vessel to the buyers To the above they added athird one for damages for breach of contract So itappears that on the self same day - 25th September, 1985 - the buyers took two seemingly inconsistent courses On the one hand they sought by their teiexto rescind the contract between the parties, and on the other, by their action before the Supreme Court of Cyprus, they sought its implementation praying for an order of specific performance of the agreement of the parties The institution of judicial proceedings on the part of the buyers was accompanied byanapplication foraninjunction restrainingthedefendants from parting, mortgaging, or in any way alienating their interest in the vessel Anorder wasmade exparte inthe termssuggestedby the buyers reserving a nght tothe vendors to oppose the application 591 Pikis J . Pastella Marine v. Iranian Tanker

(1987)in due course after service upon them of the proceedings Originally thevendors resisted thejurisdiction of theCyprusCourt and disputed its competence to take cognizance of themotion Subsequently, they opposed the application for an mtenm injunction on several grounds They contended that an mtenm injunction could not be justified on any of the three heads under which itwas sought, notably (a)s 4

(1)of theCivil ProcedureLaw Cap 6, (b)s 30 of the MerchantShipping (Registration of Ships, Sales and Mortgages) Law, 1963 (Law 45/63), and (c)s 32 of the Courts of Justice Law (Law 14/60) 5 10 The learned tnal Judge took time to reflect on the nval contentions Inan elaborateJudgmentheanswered thequestions raised intheorder indicatedabove Firsthe held thats 4

(1)ofthe Civil Procedure Law was inapplicable for the ship was not the subject matterof the proceedings Hereiterated that the ambit of 15 s 4

(1)of the Civil Procedure Law is confined to orders affecting thesubject matterof theaction Hisdecisionwas based ontheselfevident implications of thewording of s 4

(1)and on the authority of the decision of the Court of Appeal in Cyprus Palestine Plantations ν Olivier & Co *By the purported rescission of the 20 contract between the parties, the buyers disclaimed, as it nghtly appeared totheJudge an interestintheship herself Therulingof the tnal Courton this aspect of the case has notbeen challenged and is notan issue on appeal Having decided thatnoordercouldbe made unders 4

(1)Cap 25 6,thelearnedJudge proceeded toexamine whetheranorder was justified under either or both of the remaining grounds propounded insupport of the motion, namely s 30 of Law 45/63 ands 32

(1)of Law 14/60 After review of thecase law beanngon theinterpretation of s 30, anditsapplicationinpractice, theCourt 30 concluded thatitsapplicationis notconfined topetitioners having an interest in the vessel herself and that a fair construction of its provisions warranted its invocation by any creditor includingone in the position of the plaintiff suing the owners of the ship for unliquidated damages And as the buyers satisfied the other 35 requisites of s 30 he made an order restraining theofficers of the company from alienating, mortgaging or in any way partingwith vendors' interestinthevesselfor thepenodspecified intheorder *XVICLR 122 b9Z 1 C.L.R. Pastella Marine v. IranianTanker Pikis J . Neither a fair interpretation of the provisions of s. 30 nor case taw bound the Court, the learned Judge noted, to limit the application of s 30 topersons having orclaiming aninterest inthe shipherself. InTheShip Georghios C.andAnother v. Mitsui Sugar 5 Limited and Another* the Supreme Court in its appellate jurisdiction left the question expressly open and refrained from offering a definitive statement on the persons who qualified as «interested persons» tn the context of s. 30 Several decisions of the Supreme Court given in the exercise of its original Admiralty 10 jurisdiction favouring a contrary interpretation of s. 30 to that adopted by the learned Judge were, as he concluded, wrongly decided and for that reason felt free to depart from them. The doctrineof stare decisis does notbindCourtstofollowdecisionsof courts of coordinate jurisdiction. The persuasive force of such 15 pronouncementsrecedes or diminishes if a Court takes the view that they were wrongly decided or that they do not reflect the correct principle of the law due to oversight or error in the reasoning.** Forthat reason he declined to follow a series of first instance decisions of theSupreme Courtdeciding thattheremedy 20 conferred by s 30 is confined topersons having an interest inthe ship herself as opposed tomere creditors***. The limitationwas warranted asaffirmed inseveral cases, onthe interpretation of the expression «interested person» inthe context of s. 30. a view reinforced by the interpretation accorded to 25 corresponding provisions of theEnglish legislation notablys. 30 of the Merchant Shipping Act 1894 wherefrom our legislation originated and purported to incorporate in our statute. Only two cases favoured the interpretation adopted by the learned trial Judge**** which were later acknowledged by the same Judge to 30 have been wrongly decided.***** An order in the terms of the application was also warranted by the provisions of s. 32

(1)of the Courts of Justice Law (14/60). •

(1976)1 CLR 105. 109" See interalia Frangosand Othersν TheRepublic.

(1982)J C LR 53 ·** Tokyo Marine and Fire Insurance ν Fame Shipping Co Ltd

(1976)1 C LR. 333. Aigemeen VrachtkantoorBvandOthersv. SeaSpint NavigationCo. Ltd..

(1976)1CL.R. 368. Versicherung AG v.Ship Dimitraki and Another.

(1976)1 CLR. 385. Botteghi v. Boll Head Navigalion

(1985)1 C L R 114 " " ( 1 9 7 5 ) 5 J S . C . 666 (NavaShipping)

(1975)11JSC *·*·· j0ifyo Marine (supra) 593 1618(LamantShipping) Pikis J . Pastella Marine v. Iranian Tanker

(1987)Section 32

(1)modelled ontheprovisionsof s 45

(1)ofthe Fnghsh Supreme Court ofJudicature (Consolidation Act) 1925 conferred jurisdiction analogous to that enjoyed by English Courts to make interim orders in the nature of what have come to be known as Mareva Injunctions English caselawestablished thatthe powerof 5 the Court to make interim injunctions is not confined to orders affecting the subject matter of the action Awide enough poweris vested inthe Court torestrain dealingswithany movable assetsof the defendant that the Court may deem necessary inthe interest of the efficacy of anyjudgment that may begiven inthe cause In 10 appropnate circumstances an order may be made restraining dealings with property that their removal from jurisdiction or dissipation would render a possible judgment in the cause nugatory Consequently, the defendants could appropriately be restrained from parting withtheship,their onlyasset assuringthat 15 no injustice would be occasioned lo the buyers from possible alienation by the vendors of their interest in the ship That the asset, notably the vessel, was outside the jurisdiction did not appear to the Judge to raiseinsuperable obstacles to the exercise ofthejunsdiction The remedy ofan interlocutory injunction isan 20 equitable one the Judge pointed out and as such it is addressed to the persons having control of the assets Equity acts in personam and so long as those to whom the order would be addressed could appropnately be restrained from partingwith the property, it mattered not that the property in their control was 25 outside the junsdiction THE APPEAL Leading counsel for the appellant strenuously argued that the tnal Judge misconceived the effect and range of application of boths 30ofLaw45/63ands.32

(1)ofLaw 14/60 Thefactsofthe 30 case could not conceivably give nse to the invocation of the provisions of eitherenactment, thuswewere invited to discharge the order Introductory to the presentation of his arguments on appeal, hereferred ustothefactsofthecasedrawingourattention tothe contradictory stand of the buyerswho at one stroke sought 35 to rescind and enforce the self same agreement While their telex of 25th September, 1985, suggested their main concern was the refund of their deposit, a corrolary of valid rescission of the contract, in the judicial proceedings that followed before the Supreme Court they asserted a claim for the ownership and 40 possession of thevessel Reference tothebackground of the case 594 1 C.L.R. Paatella Marine v. Iranian Tanker Pikis J. v\u» made as I comprehendthe case fortheappellants inorder to cast doubts on the bona fides of the buyers in mounting proceedingsbefore the Cyprus Courts and pursuingthe remedies claimed therein 5 Developing the main theme of his appeal,counsel submittedin relation to s 30 that it is (

1. a)modelled on the provisions of s 30 of the Merchant Shipping Act (
2. b)it aims to reproduce and incorporate in our law the corresponding English legislation, and (
3. c)Cyprus, and English legislation pursue similar objectives. 10 namely the regulation of merchant shipping and matters associated with and relevant thereto Counsel made a histoncal survey of the purposes and backgound to s 30 of the English legislation with a view to emphasising that fromitsinceptionthe remedy conferred bys 30 15 was confinedtotheclaimsof personshaving an interestin the ship herself The predecessor of s 30 was s 65 of the Merchant Shipping Act 1894 Although the wording of the two sections of the law was not identicalthey were similarly wordedwithregard to the definition of the class of persons which could legitimately 20 invoke itsprovisions, notably persons interestedin theship herself asopposedtomerecreditors Two Scottishdecisions (citedlaterin this Judgment) support the above interpretation The absence of any Englishcase favouring acontraryinterpretationof the law and the availability of the remedy at the instance of a mere creditor 2*> reinforces the view that its application is confined to persons interested in the vessel herself, a construction consonant with the grammar of the wording of section 30 Turning to the provisions of s 32

(1)(Law 14/60) particularly those of its proviso counsel submitted that however liberally we ΐ() construe them they fallshort ofconfenngpower tomake an order restraining dealings with property outside the jurisdiction And as the vessel was beyond the jurisdiction of the Court it was incompetent on the part of the court to make any orderaffecting its disposal As in the case ofs 30 counsel reviewed the history of 35 s 32

(1)and that of English legislation wherefrom itoriginated and which it aimed to reproduce The jurisdiction vested by s 32

(1)is equitable in nature and origin and firstfounditsway in the Statute Book in the Judicature Ac1 of 1873 providing for the fusion of Common Law Courts and 40 Courts of Equity and theirjurisdictions The provisions ofthe 1873 595 Pild* J . Pattella Marine v. Iranian Tanker

(1987)Act were virtually reproduced by s.45

(1)of theJudicature Act of 1925. Until 1975 itwasjudicially accepted or more appropriately predominant judicial opinion was that the remedy of an interlocutory injunction was confined to thesubject matter of the proceedings. This view wasdisavowed by theCourt of Appeal in 5 1975 in the Karageorghis case where it was decided that the restrictive interpretation placed upon s. 45

(1)of the 1925 Judicature Act was unwarranted by the wording of the law and inconsistent with the historical background of the remedy. The decision in the Karageorghis case was espoused in a series of 10 subsequent English caseshardening in the process into a settled feature of English law. Butthere were limitations attached to it,a notable one being that itcould not embrace property outside the jurisdiction.This limitationshould,counselsubmitted,be heeded by Cyprus Courts too; consequently, we were invited to reverse 15 theJudgment of thetrial court. 77iecasefor the Respondents: Counselfor the respondents,while acknowledging thatfor the purposesof theappealtheorder madewassolelypeggedto their claimfordamages,hesubmitteditwaswarrantedunderboths.30 20 ofLaw45//63 ands.32

(1)of Law 14/60.Thefactthatthevessel wasthe only assetof the vendorsput it inthe power of the Court torestrainthemdealingwithherinamannerthatmightrenderthe buyers remediless if successful in their action for damages. He supported theview of thetrial Court thatthewordingof s.30did 25 not warrant the limitations suggested with regard to the class of personsatwhoseinstanceitsprovisionsmightproperlybeinvoked. Irrespective of whatever hadbeen inthe mind of the legislator in enactings.30,thelanguageusedistheonly legitimatesource we may consult for deducing their intention, and that wording, 30 expressed in Greek, the language of the statute, did not limit the ambit ofthelawtopersonshavinganinterest inthevessel herself. A comparison of the text of the Cyprus and English legislation reveals notable differences between the wording of the two enactments reinforcingtheview thatwe should look solelytoour 35 legislation for guidance in gathering its meaning.That being the caselittle or no assistancecouldbederivedfrom Englishcaselaw or practice affecting the interpretation of s. 30. Provided it was competent for the trialCourtto makeanorder atthe Instance of 5% 1 C.L.R. Pastella Marine v. Iranian Tanker Pikis J . the buyers, nothing hesuggested was placed on record to justify interference with the exercise of the discretion vested by s 30 in the tnalCourt The order was equally justified under s 32

(1)of Law 14/60 5 Counsel invited us toupholdtheorderunderboth enactmentsas a legitimate exercise of thediscretionvested thereby intheCourt Whether we puta nameonanordermade undertheproviso tos 32

(1)as they have doneinEngland,aMareva injunction,after the nameof oneof theearly cases mwhichanextended interpretation 10 of s 45

(1)was upheld, the crucial fact is that the law confers in termsunlimitedpower tomake anintenminjunction as thejustice and convenience of the case may warrant Being an equitable remedy, there could be no formal limitations to its exercise, the justice of the case being the sole consideration thatshould guide 15 the Court in the exercise of its discretion So long as those who have control of the property can be bound to observe the conditions of an order it matters not that the property affected thereby isbeyond thejunsdiction of theCourt Relying on the reasoning of ajudgment of the DistnctCourt of 20 Larnaca,Misirhs ν Jaber,*he submitted that the decision of the Supreme Court in Polish Ocean Lines and Another ν Ν Spyropoullos and Another**should nolonger bind theCourts in the interpretationof s 32

(1)as thereasoning behindthatdecision was founded on English authonty on the interpretation of 25 corresponding English legislation since declared wrong for taking an unduly restrictive view of the relevant provisions of the law Lastly, counsel argued thatthe facts of thecase justified theorder made, although thebuyers did notquantify the damage claimed, it was sufficiently itemized by affidavit evidence produced before 30 the Courtas todisclose the magnitudeof thedamage suffered We have carefully considered every aspect of the case Resolution of the issues in the case requires us to examine the ambitandcompass of boths 30 of Law 45/63 ands 32(l)ofLaw 14/60 35 Section 30 Merchant Shipping (Registration of Ships, Sales and Mortgages)Law 1963, 45/63 The learned tnalJudge found the wording of s 30 tobe free of *

(1978)2 JSC 304 (Adecision given bymyself) " 20(PartII) CLR 73 597 /litis J. Pastella Marine v. Iranian Tanker

(1987)interpretational difficulties inviewof itsstrainghtforward meaning The crucial expression «ενδιαφερόμενο rrpootmio» that representsafair translationof «interested person»encompasses by thetenorof itsmeaningevery creditorandnotmerely onewithan interest in the ship herself a meaning in noway modified by any 5 other part of s 30 With respect, I cannotagree eitherwith theproposition thatthe meaning and effect of s 30 is because of itswording self-evident or that the expression «interested person» necessarily embraces every creditor In Ladup Ltd ν Williams and Clyn s Bank'' 10 Wamer, J remarked that the word «interest» is a word of a notoriously elastic meaning The same is borne out by the definition of the word «interest» in Black's Law Dictionary** denoting a right or claim or legal share falling short of absolute ownership The word «interest» and vanations of it encountered 15 in a legal framework, are, it seems to me, apt to denve their precise meaning from the context in whicn they appear The expression «interested person» istomy comprehensioninno way synonymous with a «plaintiff», a «petitioner» or «litigant» in a judicial cause or matter Examined in the context of s 30 and 20 viewed in conjunction with the nature of the order that can be made, one solely affecting the ship, the expression «interested person» signifies a person having an interest in the ship herself Hadthelegislature intendedtoextendtheremedyconferred by s 30toevery creditorof theowners oftheship,Iwould expect them 25 to adopt a word other than «interested person», for example a plaintiff, a petitioneror litigant The construction put on the corresponding English legislation reinforces theinterpretation of s 30 favoured above While Iagree thatthelanguage of aCyprusstatuteshouldbetheprincipalguide 30 toitsinterpretation,itisperfectly legitimatetoconsultEnglish case law on the interpretationof a similar statutewhere, as inthis case our legislature intendedtoreproducean English enactment inour law for the achievement of similar objectives, namely the regulationof merchantshippingandmattersassociated therewith, 35 provided always thatthewording of ourstatuteadmits of judicial exegesisas s 30 does M1985]2All ΕR 577 "

(1979)edn ρ 729 598 1 C.L.R. P a s t e l l a Marine v. Iranian T a n k e r Pikis J. Ίwo Scottish cases namely, Roy ν Hamiltons & Co *and McPhail ν Hamilton** on the interpretation of s 65 of the Merchant Shipping Act of 1854 (the predecessor of s 30 of Merchant Shipping Act 1894) adopttheviewthatthe expression 5 «interested person» in the context of the legislation under review connotes a person interested in the ship herself The absence of any English case suggesting invocation of therule attheinstance of anybody else cannotbut reinforce theconstructionof s 30 as limiting theremedy given thereby topersonshaving aninterestin 10 thevessel Cyprus case law favours as indicated earlier a similar approach totheinterpretationof s 30 acknowledging thatCyprus and English legislation are in pan materia and are intended to serve the ;>ame purpose Uniformity in the interpretation ot 15 statutes of different countries affecting matters of international interestsuchasshippingishighly desirable andmakesforcertainty inthelaw on a wider plane The distinction made by the law between persons having an interest in the ship herself and other creditors is not an arbitrary 20 one A ship has in many respects a personality of her own a position reflected in the principles of Admiralty law that dearie distinguish between theliabilities of thevessel and her owners In my judgment the application of s 30 is confined to claims made by personshaving orclaiminganinterestintheshipherself 25 Consequently it was not a remedy available to the buyers plaintiffs inanactionfordamages againsttheownersof thevessel Section 32

(1)Courtsof Justice Law 14/60 Section32

(1)oftheCourtsofJusticeLaw reproducess 37

(1)of its predecessor the Courts of Justice Law Cap 8 Both 30 enactments aim to define the remedial powers of the Court to grant relief of anequitable nature,namelytoissueinjunctionsand appoint receivers In Polish Ocean Lines and Another ν Spyropoullos and Another***the Court held that the power to make an interlocutory injunction under s 37

(1)is confined to 35 orders affecting thesubject matterof the proceedings Relyingon *

(1867)5M573 "

(1878)5R 1017 ρ 1020 ·"XXPari 11CLR 73 599 Plkls J . Pastetla Marine v. Iranian Tanker

(1987)the interpretation furnished by English Courts s. 45 of the Judicature Act of 1925 that virtually reproduced s. 25

(8)of Judicature Act of 1873,(depicted in Kerron Injunction. 4th edn. p. 2) they rejected a submission that the power of the Court to makean interim injunction extended beyond thesubject matterof 5 the action. Before the decision in Nippon Yusen v. Karageorghis*it was generally accepted that the power of the Court to make interlocutory injunctions wasconfined tothe subject matter of the action. The limitation wasrejected in the case of Karageorghisas 10 a mater of construction of the provisions of s. 45

(1)of the 1925 legislation and upon consideration of the equitable nature of the remedy and its historical perspective. Neither s. 45

(1)nor its predecessor, s.25

(8)oftheJudicature Actof 1873were intended to confer aremedy unknown tothe law Theobjective wastogive 15 statutoryeffect toanequitableremedyinthecontextofthefusionof common law Courts and Courts of equity and their jurisdiction. Theemployment oftheword«just»andthetyingoftheremedyof an interlocutory injunction to the justice of the case serve to emphasize the equitable characterof the relief and theabsence of 20 formal constraints to its award. Moreover, considering the intention of the legislature in enacting the above law, it was legitimate to interpret itinthelightofthe historyof the evolution of the remedy. An interlocutory order was made in that case restraining the defendant from removing funds deposited in a 25 bank within thejurisdiction thereby ensuring thatajudgment that mightbe given inthe cause infavour ofthe plaintiffs would notbe rendered nugatory byanyaction of the defendant. I think I must acknowledge that the statutory framework and wordingofs.32

(1)lendsupporttotheviewthattheremedyofan 30 interlocutory injunction is confined to the subject matter of the proceedings. The theme of s. 32

(1)is the enumeration of the remedies, albeit equitable,available tothe Court atthe end of the proceedings necessarilyrelatedtothesubject matteroftheaction. ItisnaturaltoassumethattheextensionofthepowersoftheCourt 35 bytheprovisotos.32

(1)wherebyaninterlocutoryinjunction may bemadeislikewiselinkedtothesubjectmatteroftheproceedings; though one might argue that reference to the likelihood of impossibilitytodocompletejusticeatalaterstagewasintended to broaden the scope oftheremedy. 40 •11975}3AUE.R.282(CA.) 600 Pastella Marine v. Iranian Tanker Pikis J. Reverting tothedevelopmentof English case Law, thedecision in Karageorghis was accepted in many subsequent cases as representing acorrect appreciationofthe ambit ofthe statutory provisions providing for thegrantofinterlocutory injunctions.* In 5 RasuMaritima v.Pertambangan**the Courtof Appeal apartfrom endorsing the new interpretationofs. 45

(1)laid down guidelines for the exercise of the discretion while making itclear that the discretionofthe Courtis notlimited toordersaffecting money. In • the Siskina***the House ofLords appears to have acceptedthe 10 new direction as well established at least as regards foreign based defendants with assetswithin thejurisdiction. InAllenand Others v. Jumbo Holdings andOthers**** an interlocutory injunction was made restraining removal from thejurisdiction of an aircraft. InBarclayJohnson v. Yuill*****itwas explained thattheremedy 15 is not confined to foreign based defendants. In the Third Chandris****** Denning, M.R. warned against thedangersof abuse ofthe remedy and its extension to areas whollyuncharted by the law. The English legislature took stockofdevelopmentsin thecase andfledgedtheMareva Injunctionsintoacomprehensive 20 statutory remedy by the enactment of s. 37

(3)of the Supreme Court Act 1981. On at least two occasions the Supreme CourtofCyprus inthe exercise ofits original Admiralty jurisdiction******* acknowledg­ ed that the power conferred by the proviso tos. 32

(1)is not 25 confined tothe subject matter of the action. Insoholding they trode along the lines approved in England in the case of Karageorghis and subsequent decisions. They reminded, however, thataMareva Injunctionisanextraordinary remedyand as such must be viewed and applied withcaution. 30 The first problem facing us inthisappeal is whether we should overrule thedecisionof theSupremeCourtinPolishOcean Lines (supra)anddepartfrom theinterpretation given inthatcase tothe predecessor ofs. 32

(1). The reasoning of the judgment of the * MarevaCompaniaSA ν InternationalBulkamersS A .[1980] 1 All ΕR213 "(197713 All ΕR326 '"11977]3All ΕR 803 ••"[1980]2All ΕR 502 — " (1980]3All ΕR190 """11979) 2AllF.R972 *""'Nemttsas Ltd ν S &S Mantime Ltd &Others.

(197b)1C LR 302. and Lmmare ShippmgCo ν Roustani.

(1979)1CLR 37 601 Pikis J. Pastella Marine v. Iranian Tanker

(1987)Supreme Courtintheabove case was exclusively founded ontht* interpretation accorded by English Courts to corresponding English legislation With thedisapproval ofthatlineof authorityby subsequent English decisions itcanbe argued thatthefoundation of thereasoning of thatcase has gone 5 Bearing in mind the reasoning underlying recent English authority on the interpretation of s45(l). the emphasis on the historical perspective inwhich the remedy should be viewed and applied, and given that Polish Ocean Lines is founded upon a premise sincedeclared unsound,thatcase cannotstandintheway 10 of reappraisal of theambitof theremedy conferred by the proviso to s 32

(1)Such re-appraisal carried out with hindsight of developments in English case law, and the illumination of the question in those cases, justified departure from the decision in Polish Ocean Lines The wording of the proviso to s 32

(1)does 1c· not put it beyond the purview of the law toextend theremedyto assets other than the subject matter of the action Its historical background and the intnnsic nature of the remedy codified thereby, provide additional reasons for the broader view of s 32

(1)Viewedfrom amoremundaneperspective, anorderintheform of aMareva Injunction may be regarded as apowerful additionto the armoury of the law, warranted by vast technological changes in transportand the mobility associated therewith of persons and goods The discretion of the Court to make a Mareva Injunction 25 must be exercised with great circumspectionandalways with due regard with the specific aims of the law, notably an aid to the process of execution designed to forestall action likely to undermine the efficacy of thejudicial process The object of aMarevaInjunction isnot,as itwas stressed inthe 30 Portlmk*or Nmemia ν Trave**toprovide uncovenantedsecunty toanunsecuredcreditor Moreconsequentially fortheoutcome of this appeal, it was decided inAstiam ν Koushi*** that a Mareva Injunction can only issue with regard to assets within the junsdiction The extra temtonalextension of Mareva Injunctions, 35 itwas pointedout,would notonlybe oppressive tothe defendant but difficult toenforce aswell '

(1984)2 Lloyds Rep 166 "

(1984)1 AllΕR 398, 409 — U986)2All ΕR 970 602 20 1 C.L.R. Pastella Marine v. Iranian Tanker Pikis J . I he learned trial Judge was unimpressed bythe argument that a Mareva Injunction should necessarily belimited toassetswithin a jurisdiction taking the viewthat the remedy being equitable it operates tnpersonam and on thataccountcould notbe limitedin 5 thewaysuggested bythe vendors The officials of the defendants could therefore berestrainedfrom doingactsthatmightleavethe buyers without the security of the vessel as a possible meansof satisfaction of anyjudgment they mightobtain inthe proceedings under review The learned Judge overlooked with respect, that 10 the vessel being out of the jurisdiction could not be seized in execution and for that reason could not be associated with the objectives of a Mareva Injunction The vendors might, no doubt be pressured because of the ordei tosatisfy theJudgment but the exertion of pressure upon the defendants to meet a possible 15 judgment in the cause is not a legitimate objective of an interlocutory injunction In that situation the Order would not servetoprohibitthespecified conduct,theobject ofan injunction butbringabout positiveaction through themedium of an interim order 20 25 Inmyjudgmentf, aMarevaInjunction associatedasitiswiththe efficacy of the process of execution, isproperly limited to assets within the jurisdiction Consequently, itwasbeyond the powers of the Court to make an order affecting an asset outside the jurisdiction TheFacts Assumingwe were, contrary towhat hasbeen decided, free to makeaninteriminjunction affecting assetsoutsidethejurisdiction Iwould again allow the appeal in view of the facts of the case Therewas,asearlierstated, an elementofcontradictonnessinthe 30 case of the buyers who appealed to approbate and reprobate their agreement with the vendors depending on their immediate pursuits Theaimofrescission isprimanly torestorethestatusquo ante Iftheywere right inrescindingtheagreement they wouldbe inno danger of not being restored totheir previous status Their 35 deposit was and still is in the hands of the firm of solicitors who have undertaken torefund the money ifthebuyersare successful in proceedings contemplated by the parties in their agreement One of the reasons for which the order had been made as specifically recorded in the judgment of the tnal Court, was to 603 Pikis J. Pastella Marine v. Iranian Tanker

(1987)provide secunty fortherefund of thedeposit money Therewas no justification for the orderon thataccount Thebuyers .un nonsk on that score Whether a party rescinding a contractis entitled todamages in the absence of fraudulent representation, is a question that was 5 notatallcanvassed orexamined intheJudgmentof thetrialCourt This was essential in order for the Court to decide whether the buyers had avisible chance of success intheirclaim for damages, a hurdle that the person invoking the proviso to s 32

(1)must necessarily overcome before an order is made at his instance - 10 Odysseos ν A Piens andAnother * Another gap inthecase for thebuyers arises from theirfailure to quantify, be itapproximately, thedamage towhich they might be entitled to if successful intheaction Thiswas necessary to enable the Court to decide whether itwas justand convenienttorestrain 15 dealings with property seemingly worth nineor more million US dollars Foralltheabove reasons, thebuyers failed toestablish acase for the valid exercise of thepowers given totheCourtby s 32

(1)The appeal isallowed 20 DEMETRIADES J Having heard the arguments of counsel appeanng for the parties in this appeal and having read the judgments delivered by my brother Judges TriantafyHides Ρ Sawides and Pikis JJ, I have come to the conclusion that this appeal mustsucceed in thelight of the facts of the case 25 However, I must makeitclearthat I have certainreservations as to whether an order undersection 30 will notbe made incases in which aship registered andflyingtheflagof Cyprus,whetherlying inaCyprus portorabroad, isthesubject of anAdmiralty action for questions or claims provided by section 1of the Administration of 30 Justice Act 1956, which reads «1 Admiralty junsdiction of the High Court -

(1)The Admiralty junsdiction of the High Court shall be as follows, that is to say, junsdiction to hear and determine any of the following questions orclaims(a)any claim tothe possession or ownership of a ship orto the ownership of any sharetherein, '

(1982)1 C L R 557 604 35 1 C.L.R. Pastella Marine v. Iranian Tanker Demetriades J . (b)anyquestion arisingbetween the co-owners ofashipas topossession, employment or earnings of that ship (c)anyclaim inrespect ofamortgage oforcharge onaship or anyshare therein, 5 (d)any claim for damage done bya ship (e)anyclaim for damage received bya ship 10 15 (0 any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act. neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other persons for whose wrongful acts neglects or defaults the owners charterers or persons in possession or control of a ship are responsible beingan act, neglect or default inthe navigation or management of the ship, in the loading carriage or discharge of goods on. in or from the ship or in the embarkation, carnage or disembarkation of persons on, inor from the ship, (g)anyclaimforlossofordamagetogoodscarriedinaship 20 25 (h) any claim arising out of any agreement relating to th · carriage of goods ina ship or tothe use or hire of aship. (i) any claim in the nature of salvage (including any clain arising by virtue of the application, by or under section fil ;one of the Civil Aviation Act, 1949, of the law relating lo salvage toaircraft and theirapparel and cargo), (j) any claim in the nature of towage in respect of a shipor an aircraft. (k)any claim inthe nature ofpilotage inrespect ofashipor an aircraft 30

(1)any claim in respect of goods or matenals supplied toa ship torher operation or maintenance, (

1. m)any claim in respect of the construction, repair or equipment of a ship or dock chargesor dues, 35 (
2. n)any claim by a master or member of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property 605 Demetriades J . Pastella Marine v.Iranian Tanker

(1987)which under any of the provisions of the Merchant Shipping Acts 1894tol954 ibrecoverableaswagesorinthecourtand in the manner in which wages may be recovered (

1. o)any claim by a master shipper charterer or agent in respect of disbursements made on account of aship S (
2. p)any claim ansing out of an act which isor isclaimed to be ageneral averageact (q)any claim arisingout of bottomry (
3. r)any claim for theforfeiture or condemnation ofaship or of goods which aie beingor havebeencarried or have been 10 attempted to be carried in a ship or for the restoration of a ship or any goods afterseizure or for droitsof Admiralty» SAWIDES J This isanappealagainstaninjunction grantedby aJudge ofthisCourt inAdmiraltyAction 212/86intheexerciseof theAdmiralty Jurisdiction of the Court restrainingtheapplicants li· defendants in the action - from operating, mortgaging or in any way alienating their interest in the ship «BURMBAC BAHAMAS» owned by the appellants and registered in theCyprus Register of Ships The injunction was made on the application of the respondents -plaintiffs intheaction -onaclaimfor 20 (a)A declaration thattheplaintiffswere entitledtopossessionof the ship fully classed under the terms and conditions of a Memorandum ofAgreement dated4thAugust, 1986 (b)Damages for breach of contract (c)An order directing the defendants to transfer ownership and 25 delivery of possession of the said vessel to the plaintiffs fully classed Itwascommongroundthatthesaidshipwasatallmaterialtimes outsidethejuilsdictionof thisCourt The learned trial Judge in a well considered and elaborate 30 judgment granted the order sought for, both under s 30 of The Merchant Shipping (Registration of Ships, Sales and Mortgages) Law, 1963, Law 45/63 and under the provisions of s 32 of the CourtsofJusticeLaw, 1960 Ingrantingtheorderthelearnedtnal Judgedepartedfromtheopinionexpressedinasenesofdecisions 35 oftheSupreme CourtgivenintheexerciseofitsonginalAdmiralty 606 1 C.L.R. Pastella Marine v. Iranian Tanker S a w l d e sJ . luiisdiction something he wasentitled todo on the interpretation ot thewords«interested persons»mentioned ins 30 ofthelawand favoured a contrary interpretation as to the meaning of such woids» 5 10 15 ^(' S 30ofLaw 45/63 read* asfollows «To Avomuov Αικαοτημιονδπναται κατάτο δοκούν (μη επηρεαζόμενης της εναοκησεα>ς οιασδήποτε ετέρας ίζουοιας αυιου) κατόπιν αιτήσεως παντός ίνδιαφίμομινοιι ιιμοοωιΐου, να tκδοχιη διάταγμα απαγορεύον δια καθωρισμενον τινά χρόνον π ά σ α ν δίκαιοπμαξιαν αψομοχιανί ις ιιλοιονη μίριδιον πλοίου, δύναται δι ναίκδωαη το διάταγμα υ π οόρους ουςτο Δικαστήριον ήθελε κρίνει δίκαιον να επιθάλη ή να αμνηΟη την ικδοσιν TOD διατάγματος,ήνα α κ υ ρ ω ο η τ ο διάταγμα ί α ντούτο ίί,ιδοΟη, μετά η ανί υ εζοδιον,και γενικωτερον να ενεργηοη αιςτοδίκαιον της υποθέσεως ηθελίν απαιτήσει, η δε Νηολογούσα Αρχή καίτοι δεν ίΐναι διάδικοι,, οψιιλει να ουμμορψουται προς αυτό ϊυΟυς ως ίττιδοΟη α υ ι η κεκυρωμενο\ αντιγραψον ί ο υ διατάγματος τούτου.» And in English 2r) 30 «The High Court may. if the Court thinks fit (withoi prejudice to the exercise ofany other powerofthe Court),c the application of any interested person make an or'e prohibiting foratime specified anydealing with aship or?r > share therein, and theCourtmay make theorder onany term or conditions the Court may think just, or may refuse tc make the order, ormay discharge the order when made,wit! or without costs, and generally may act in the case as th< justice of the case requires, andthe Registrar, without bein< made aparty tothe proceedings, shallonbeingserved withai official copy thereof obey the same » The learned tnalJudge indealing with the interpretation oftht words -any interested person»asmentioned ins.30concluded a 35 follows (SeeNational Iranian Tanker Company Ltd. v.Pastell Marine Company Ltd.

(1987)1C.L.R. 120, atp.132) 40 «The words 'any interested person' are quite clear am unambiguous They need no construction. They mustb< appliedaccordingtotheirliteralmeaning; and thisisafortioi so if we read the relevant partof the Greek textof theLav 607 Sawides J. Pastella Marine v. Iranian Tanker

(1987)which was enacted by our House of Representatives (the Greek text istheoriginal) which provides as follows 'Κατόπιν αιτήσεως π α ν τ ό ς ενδιαφερομένου π ρ ο σ ώ π ο υ ' With respec· itis quite arbitrary toconstrue "any interested person' so as to convey the meaning 'of a person having an 5 interest intheshipherself Ifthelegislator wanted toeliminate its meaning he could do so by omitting 'any and adding 'a person interested in the ship'. I hold the view that 'any interested person' covers notonly persons having an interest intheship herseif butalso creditors and claimantsof damages jo against the owners of theship» In relying also on s 32 of the Courts of Justice Law which empowers theCourtto grant an injunction where itappearstothe Court just or convenient to do so subject to the conditions contained therein, the learned tnal Judge had this to say at pp 15 140-141 «Imust not go further intothe facts of thiscase Suffice itto say thatI am satisfied thatthereisaserious question tobetried at the hearing, that there is a probability that the plaintiff is entitled torelief and inthisconnectionitmustbe remembered 20 that the plaintiffs apart from the damages which they may be entitled to recover they have deposited with the defendants almost a million American Dollarswhich were notreturnedto them so far, and unless an interlocutory injunction is granted it shall definitely be difficult if not impossible to do complete 25 justice at a later stage, bearing in mind that the defendants have no other asset except the vessel in question Having already held thatthe Mareva linecan be followed in Cyprus subject to what I have stated earlier in the present decision, I hold theviewthattheparticularfacts of thiscase do 30 warrant the granting of an interlocutory injunction onthe said line » Ineed not embark at length on the factual and legal aspects of this case as such aspects have already been dealt with atlength in the elaborate judgment just delivered by my brotherJudge Pikis, 35 J Section 30 has been judicially considered and interpreted in numerous decisions of this Courtwhich with the exception of the case of the ship «GEORGIOS C»and Another ν Mitsui Sugar Ltd and Another

(1976)1 C L R 105 at 109 were first instance 40 decisions of this Court in the exercise of its original Admiralty Junsdiction InGeorghios C (supra)theCourtof Appeal refrained 608 1 C.L.R. Pastella Marine v. Iranian Tanker Sawides J. from giving a definition of the persons who qualify as «interested persons» inthe context of s.30. Inthe case of TokioMarinev.FameShipping Co.Ltd.

(1976)1 C.L.R. 333.Malachtos.J. after reviewinga number ofauthorities, 5 found that the section does not apply to mere creditors or claimants of damages against the owner of the ship and that «interested person» in this section means a person who is interested inthe shipherself. He referred, inter alia, tothe caseof Verolme Dockand Ship Building Co. Ltd. v.LamarShipping Co. 10 Ltd.

(1975)11J.S.C. 1618 inwhich he reconsidered and revised the approach taken byhim on the application of s.30 in the case of EasternMediterranean MaritimeLimited v.NavaShipping Co. Ltd.

(1975)5 J.S.C. 666. The Tokio Marine case (supra) was upheld inthe casesof GerlingKonzern Allgemeine Versicherungs 15 A.G. (No. 1) v. The ship «DIMITRAKIS» and Another

(1976)1 C.L.R. p.385;London and Overseas (Sugar)Co. andAnother v. Tempest Bay Shipping Co. Ltd and Others

(1978)1C.L.R. 367; Botteghi S.P.A. v.Bolt Head Navigation Co. Ltd.

(1985)1C.L.R.

1. 20 InthecaseofBotteghi v.BoltHead A. Loizou,J., ingrantingan order under s. 30 subscribed fully to the interpretation given by Malachtos, J. in the TokioMarinecase. Inexplaining the reasons forgrantinganinjunction intheBotteghi casehesaidthe following at p.
2. 25 «The narrow ground upon which Igrant this order stems from the fact that the defendant ship hadescaped from lawful arrest effected on the strength of a warrant issued bya Court, apparently having jurisdiction in the matter and in the circumstances the applicants can be considered as having an interest inthe ship inthe sense of s.30 of the Law.» 30 The construction of s. 30 in Tokio Marinewas also adopted in therecentcaseofCompania Portuguese De Transposes Maritime of Lisbon v. Sponsalia Shipping Company Ltd.,

(1987)1 C.L.R. 11, inwhichitwasheldatp. 15that:«Section30hasbeen allalong 35 held to apply to claims by persons having an interest in the ship itself such as legatees, shareholders, heirs or creditors, but not mere creditorsor claimants of damages.» I am in agreement and I fully subscribe to the interpretation given to s. 30 in the above cases and I have no difficulty in 609 Sawides J. Pastella Marine v. Iranian Tanker

(1987)concludingthat it is necessary foraperson seekingan order undei s 30 to have an interest in the ship as explained in the aforesaid cases and not be a mere cieditor or claimant of damages and that the respondents η this appeal did not have such an interest and therefore an injunction under s 30 could not have been made and was wrongly granted 5 1 come next to consider whether an injunction could be made unders 32 of the Courts ofJustice Law I960 (Law 14'60) The power of the Court to grant an injunction under s 32 is amongst the general powers ot the Court under Part IV of the 10 Courts of Justice Law (Law 14/60) Under such provision the Court in the exercise of itsciviljurisdiction isempowered togrant an injunction «in all cases in which it appears to the Court just or convenient so to do » S 32 came under judicial interpretation in a number of casesof 15 our Supreme Court extensive reference to which is made in the case of Botteghi ν Bolt Head Navigation (supra) This section has been applied in the same way as s 45 of the Supreme Court of Judicature (Consolidation) Act. 1925 which was interpreted in England as extending to a procedure in the nature of a Mareva 20 injunction The introduction of this new procedure appears to have itsorigin in the caseofNippon Yusen Kaishaν Karageorghis

(1975)1 W L R 1093 in which an injunction was granted restraining removal of moneys, lodged with a bank outside the jurisdiction Lord Denning explained its aspect as follows (at pp 25 1094-1095) «We are told an injunction of this kind has never been granted before It has never been the practice of the English courts to seize of a defendant in advance of judgment or to restrain the disposal of them We were told that Chapman J 30 in chambers recently refusedsuch an application In thiscase also Donaldson J refused it We know, of course, that the practice on the continent of Europe isdifferent It seems to me that the time has come when we should revise our practice There isno reason why the High Court or 35 this court should not make an order such as isasked for here It is warranted by section 45 of the Supreme Court of Judicature (Consolidation) Act 1925 which saysthat the High Court may grant a mandamus or injunction or appoint a receiver by an interlocutory order in all cases in which it 40 610 I C.L.R. 5 Pastella Marine v. Iranian Tanker Savvldes J. appears tothecourttobe justorconvenientsotodo It seems to me thatthis isjust such acase There isastrong prima facie case that the hire is owing and unpaid Ifan injunction is not granted these moneys may be removed outof the jurisdiction and the shipowners will have the greatest difficulty in recovering anything Two days ago we granted an injunction ex parte and we should continue it» A few days later a similar injunction was granted in Mareva ν International Bulkcamers [1975] 2 Lloyd s Rep 509 from which 10 this new procedure took its name Developments up to 1979 are fully and succinctly discussed by Lord Denningin his book «The Due Process of Law» 1980 Ever since there has been a rapid and extensive development in an article in theJournalJustice of the Peace of April 4. 1981 15 under the title «Recent Developments in Mareva Injunctions» the following conclusion is drawn at pp 205 - 206 20 25 30 35 It is only since 1974 thattheMareva injunctions have been allowed to operate But their effectiveness and success has been phenomenal Solicitors and counsel have taken full advantage of it It seems to be a very fair and equitable remedy These days money can be transferred out of the country by asimple telegram andmadeoutof thereach of the junsdiction of the Courts As Lord Denningsays in his book, theremedy isinfull operationintheUSAandintheEuropean countries (saisie conservatoire) Now that we are in the European CommonMarket,theMareva injunction has helped in theharmonizationof thisprocedure The injunction can be granted in multiple situations including in personal injunes cases see Allen ν Jambo Holdings Ltd [1980] 1 W L R 1252) The Payne committee on The Enforcement of Judgment Debts (Cmnd 3909) and the Kerr Committee on The Enforcements of DebtsintheEECbothhadrecommend­ ed such aprocedure NowtheSupremeCourtBill 1981, puts the stamp of respectability to it by consolidating s 45 of the Supreme Court of Judicature (Consolidation) Act 1925 and the Mareva Injunction de"elopments inart 37 » Though wide its application Ihave not been able to trace any authonty to the effect that a ship not within the junsdiction but registered and owned by a company registered within the 611 Sawidea J. Pattella Marine v. IranianTanker

(1987)junsdiction can be the subject ofa Mareva injunction In Botteghi ν Bolt Head Navigation A LoizouJ in dealingwith suchsituation had this to say at ρ 124 «By theirvery natureshipssailing fromporttoport naturally incur liabilities that may render them the subject of arrest 5 appraisement and sale and other encumbrances in other junsdictions In such circumstances an injunction may not be of any effect vis a vis such claimants with different pnonties Bearing in mind that the jurisdiction of a Court in granting such remedies should notbe exercised invain, Ihave cometo 10 the conclusion that evenifthe registrationand ownership ofa ship could be the subject of an injunction under section 32 of the Law. I would not be prepared to exercise my discretion if 1 had one, in granting same I would therefore refuse the present application to the extent that is based on the said 15 section » The learned trialJudge in thepresentcasetook theviewthatthe remedy, being equitable, operates in personam and, therefore the defendants could be restrained from alienating their interests in the ship notwithstanding the fact that the vesselwas outside the 20 jurisdiction Beanng in mind the fact that the Mareva injunction as developed applies to assets within the jurisdiction, in the circumstances of the present case it could not be made against a ship which at the material time was outside the jurisdiction of the 25 Court Before concludingI hold theview that when an orderissought under the general powers of the Court under s 32 of Law 14/60 concerningships the Court must bear in mind the provisions ofs 30 of the Merchant Shipping Act which are special provisions 30 empowering the Court to make orders prohibiting dealing with ships, in the exercise of its discretion whether it is «just and convenient» to make an order under s 32 For all the above reasons thisappeal should beallowed and the injunction granted be set aside KOURRIS J 1 agree with thereasons given by the President of this Court for allowing this appeal and I also agree with the additional reasons given by Pikis,J forallowing thisAppeal and I have nothing useful to add 612 35 1 C.L.R. Paslella Marine v. Iranian Tanker TRIANTAFYLLIDES P.: This appeal is allowed unanimously. Theinjunction againstwhichitwasmadeissetaside,togetherwith the order for costs made by the trialJudge.We make no order as to the costs of the trial and we order that the respondents should 5 pay tothe appellants for the appeal the costs for one advocate in Cyprus. Appeal allowed. Orderforcostsas above. 613