clr/1987/1987_1_69.pdf

(1987)«PLATON CH» with an action in personam against a foreign corporation, mortagees of the vessel The latter applied to have the wnt struck out for irregulanty and sought to set aside service tnereol effected on thelaw office of Montaniosand Montamoson behalf of the second defendants As regards theissue relating totheservice of the wnt, theplaintiffs argued that a notice dated 25 9 86 and given to the Registrar of ships pursuant ot s 31

(2)(e)(m)of Law 45/63, whereby the Registrar was informed that Messrs Montanios and Montanios assumed management of the ship and were authorised to accept notices in connection with such management, is sufficient toentitlethe plaintiffs tolook todefendants 2 as physically present inCyprus, represented by thesaid firm Ο 10 Thislinewas pursued notwithstandingthatthesaidmanagementoftheship ended on 27 9 86, when she was arrested, and thattheactionwas instituted against the second defendants «through their attorneys in Cyprus, Messrs Montaniosand Montanios » Held (A)

(1)Rule 14 of the Admiralty Rules does not contemplate a different process for the initiation of an acton in rem and an acton in personam Therearenomatenaldifferences between theparticularsrequired underthetwo actionsorany otherdifference making combinationof the two actions inone wnt inherently injunous or antagonistic totheends ofJustice

(2)Theabsence ofanyspecific rulesastojoinderofpartiesinour Admiralty Rules is filled by Rule 237, making applicable the rules of practice of the Admiralty Division of the High Court of England as in force in 1960 The English Rule at that time was Order 16,r 4 This rule allows joinder of any number of defendants against whom a nght to relief is alleged to exist, whether jointly or severally or in the alternative Bearing in mind the relief sought inthiscase, damages for which thedefendants areallegedly jointly or severallyliable thejoinder was inpnncipie feasible

(3)Assuming that tne combination was irregular, the irregulanty did ΙΚΛ stnkeattherootoftheproceedings andcouldberemedied byan appropnate order of theCourt (B)

(1)Ifa wnt is addressed toa legalentityRule20 of theAdmiralty Rules provides that service must be effected in the manner provided by law for serviceoflegalprocess uponsuch entity Section372 oftheCompaniesLaw, Cap 113 provides that«a documentmay be served onacompanyby leaving itorsending itby posttotheregistered office ofthecompany »Itis, however, doubtful thatthis rule applies toservice of judicial proceedings Ifthat were thecase itwould appear tofall shortof theprovisions ofArticle 30 3(a)ofthe Constitution,safeguarding as a fundamental humanright, trierightot every litigantto be informed of proceedings against him 70 *5 «£" 25 30 35 ™ 1C.LR. Scluvin v.Ship «Platoo Ch>

(2)More likely, service of admiralty proceedings upon legal entities is regulated by Rule 21, which, authorises, inter alia, service by «leaving an office copy of the wntwiththe President or other head officer, orthe clerk. treasurerorsecretaryof thecorporation....·. Montaniosand Montanioshold noneofthe abovepositionsinthedefendant company. 5

(3)Neither Rule20nor Rule21reaulate service upon aDersonout ofthe Jurisdiction. Such serviceisspecifically regulated byRule 23*.Asitappears from the word «shall»inthe said Rule the leave of the Court isa condition precedent to such service. In the light of the provisions of Rule 24 this is perfectly understandable. Service doesnotdepend on eitherthe transaction by the defendant of business in Cyprus or the availability of an agent. The Court must consider ingranting leave a variety of factors including the all important one oftheprobabilityofthedefendant beingtracedbythe means adoptedtobringtheproceedingstohisnotice. *" 15

(4)This being the law the service in question was wholly irregular Departure from the rules regulating service has been held in England to render nullthe service. More so in Cyprus, inview of Article 30.3(a)of the Constitution. Orderthattheserviceon defendants 2besetaside. Costsagainsttheplainhff. 20 Casesreferredto: AsirnenosandPeraskeva v. ChrysostomouandAiiuu^i(l9S2)'iC L.R.145, Pfiria Shipping v.Georghiou

(1982)1C.L.R.358; 25 Lysandrouv.SchizaandAnother

(1979)1C.L.R.267; ~ ^Spyfopoullos vrTransavia(1979J.1 C L R 4 2 L _ Evagorouv. Chnstodoulou andAnother

(1982)1C.L.R.771; N.P.LanitisLtd.v.Panayides

(1986)1 C.L.R. 490; Hadjichambisv. Attorney-Genera!

(1986)1C.L.R.386; 30 AHertextInc.v.Advanced Data[1985] 1AllE.R.395. Application. Application for an order striking out the writ ot summons for irregularity and for an order setting aside service of the writ of 'Quotedatp.76post. 71 Selunrlnv.Ship«PlatonCh»

(1987)summons effected upon the law Office of Montanios and Montaniosonbehalf ofthedefendants. E.Lemonans, forthe plaintiffs-respondents. E.Montanios,fordefendants 2-applicants. Cur. adv.vult. 5 PIKIS,J. readthefollowingjudgment.Theplaintiffs combined inthesamewritanactioninrem,againsttheShip«PLATONCH», with an action in personam, against Greyhound Shipping Corporation of Monrovia, Liberia, a foreign Corporation, mortgagees of the vessel. The latter applied to have the writ 10 struck out for irregularly combining the twospeciesofadmiralty actions inthe same writand sought to set aside service thereof effected uponthelawOffice ofMontanios&Montaniosonbehalf of the defendants. In an affidavit, sworn to by E. Montanios,a partnerinthelawOffice ofMontanios&Montanios,itisasserted 15 their office was never authorised to accept service on behalf of Defendants No.2. Examination of the facts relevant to the authorityofthelawOffice ofMontanios&Montanios,leadstothe inference that such authority, as they possessed, in connection withthemortgage,wasconfined tothatindicatedinthenoticeof 20 25th September, 1986, addressed to the Registrar of ships pursuant to the provisions of s.31

(2)(e)(iii) of the Merchant Shipping (Registration ofShips,SalesandMortgages)Law45/

1. By this notice the Registrar was informed they assumed management oftheship,then lyingatConstanza, Rumania, and 25 wereauthorisedtoacceptnoticesinconnectiontherewith,thatis, the management oftheship.Counsel for theplaintiffs submitted the above notice entitled them to look to Defendants No.2 as physically in Cyprus, represented by Montanios & Montanios; therefore,theycouldservethemwiththewritofsummons.Infact, 30 theaction againstDefendants No.2,asitappearsfrom thetitleof the action, was raised against the defendants «through their attorneysinCyprus,Messrs.Montanios&Montanios......Thistine was pursued notwithstanding the fact that assumption of management ended on 27/9/86 when the ship was.sailed to 35 Cypruswhereatthevesselwasarrestedandplacedinthecustody 72 1C.L.R. S«k«via v.Ship-PUton Ch» PUUsJ. of the Marshal, the third defendant, by virtue of an order of the Court of 27/9/
2. And, despite the fact that Montanios & Montanios had no general authorisation torepresentthem in any proceedings brought against Defendants No.2, or a special one 5 authorisingthem toacceptserviceontheirbehalf inthiscase.The relationship of the firm of Montanios & Montanios with Defendants No.2, other than that specifically indicated in the notice of 25/9/86 was, it appears, that of advocate and client, established by specific retainer in the particular case. Moreover, 10 thisfirmofadvocateswasnottheonlyoneretainedbyDefendants No.2 for the transaction of their legal business; other advocates, too, wereengaged forthesame purpose. Inrelationtothevalidityofthewritofsummonsortheregularity of the process employed, counsel for the applicants argued the 15 joinderofthetwoactionswasimpermissible,aninference derived from thecombined effect ofRules7,11,14and 15,ofthe Cyprus Admiralty Rules. Attention was drawn to rule 14 envisaging different forms ofsummons forthe initiation ofactionsinrem and in personam and, rule 11 stipulating different time limits for 20 appearance to actions in rem and in personam. Nonetheless counselacknowledged thatcombinedactionsareaccepted bythe Registrywithout demur, an occurence repeated often enough to meritthecharacterisation of«practice».Asimilarpractice obtained in England before its discontinuance or abolition by a Practice 25 Direction*of 1979.Before itsjudicialdiscouragement orabolition the jurisdic validity of the practice was never tested before the Court**[corisequently,~its-existence-is of limited,value as a guide to the interpretation of corresponding provisions of the Cyprus AdmiraltyRules. 30 For his part Mr. Lemonaris submitted the Admiralty Rules impose no formal constraint on thejoinder of the two actionsin one writ, a course apt in a proper case to avoid multiplicity of proceedings, save costs and, generally, be beneficial to the administrationofjustice.Respectingserviceheinvokedinsupport 35 of its validity the provisions of Ord.5 r.7 of the Civil Procedure •*(1979]2AllER.
3. · · (See,AnnualPractice1976,p.l 113). 73 PiklsJ. Sckavtn v. Ship «PUton Ch»

(1987)Rules, and argued the notice of 25/9/86 was equivalent to authorisation tothelawfirmofMontanios&Montaniostotransact any businesson theirbehalf inconnection with thiscase. COMBINATION OF ANACTION IN REM ANDAN ACTION IN PERSONAM IN ONEWRIT OFSUMMONS—VALIDITY OF THE COURSE FOLLOWED: 5 Awrit ofsummons istheprocessbywhichanadmiralty action can be raised before a court of law. Unlike the Civil Procedure Rules the Admiralty Rules make no alternative provision for the initiation of an admiralty action before acompetentCourt.Under 10 the Civil Procedure Rules originating summons is an alternative means of instituting a judicial cause before a,court of law where specific provision to that end is made in the law*. Action by originating summons isaspeciesofajudicialproceeding different from an action raised bya writofsummons. 15 Rule 14oftheAdmiraltyRulesdoesnotcontemplatea different process for the initiation of an action in rem and an action in personam; itsambitisconfined tosanctioningdifferent formsof a writ of summon for the initiation of the two kinds of Admiralty actions. Examination of the details of the two forms reveals no 20 material difference between the particulars the plaintiffs are required to furnish under the two actions or any other difference thatwould makeacombination ofthetwoactionsinthesamewrit inherently injurious or antagonistic to the ends of justice. The Admiralty Rules make no provision for the joinder of parties in 25 the same action. Joinder of actions and parties in the same proceeding isan important facet of the administration of justice. Wecan, therefore, presume the makers ofthe Rules intended the gap to be filled by Rule 237, making applicable rulesof practice of the Admiralty Division ofthe HighCourtof England asinforce 30 in I960**. The relevant English rule applicable at the time was Ord. 16 r.4, allowing the joinder of any number of defendants in * (See DefinitionofAction inOrd.1r.2•CivilProcedureRules,and unders2 •Courtsof lusticeLaw 14/60). "(See, Decisionsotthe FullBench inAssimenosandPanskevav.Chrysostomou andAnother

(1982)1C L.R. 145;PitnaShipping v.Georghiou

(1982)1C.L.R.358.' 74 1C.LR. Sekavln v. Ship «Platen Ch» PUd, J. the same action against whom a right to relief is alleged to exist, whetherjointly orseverally, orinthealternative.English cases on its interpretationsuggest the above Rule is liberally interpetedto validate joinderwhenever common questions of law orfact fall to 5 be determined '*.Bearing inmindthenatureofrelief sought inthis case, damages for which the defendants are allegedly jointly and severally liable, thejoinderwas inprinciplefeasible. Furthermore, supposing the combination,contrary to my decision, was in any sense irregular, the irregularity did not strike at the root of the 10 proceedings and could be remedied by an appropriate order of the Court. Only on rare occasions would the Court declare proceedings instituted in breach of the rules as invalid, though mere is power to do so under Ord.70 r.l of the relevant English Rules. Unless, of course, the proceedings are void ab initio, a 15 matter that need not be explored in these proceedings in the absence of(a)any suggestion of breach of therules of naturaljustice, or 20 (b)a stipulation making employment of the specific forms approved in Rule 14 of the Admiralty Rules, acondition precedenttothevalidity of the proceedings**. Inmyjudgment thecombinationof thetwo actionsinone writ was neither irregular nor lmpermibMuie having res? r f 1 to the nature of therelief sought. SERVICE OF A WRIT OF SUMMONSON A PARTY OUTOF 25 CYPRUS: Article 30.3(a) of theConstitutionsafeguards as a.fundamental human right, the right of every litigant to be informed of proceedings against him. Rules regulating service of judicial proceedings upondefendants,those, inparticular,enacted before 30 1960 astheAdmiralty Rules,mustbe applied inaway conforming totheabove articleof theConstitution andinamanner effectively safeguarding the protected right. Personal service is the norm •(See,WhiteBook 1958,p. 1986 et teg.). * · See, inter alia, Lysandrou v. Schiza and Another (1979/1 C.LR. 267. Spyropoullos ν Transavia

(1979)1C.LR 42Ϊ; Evagomu v.Christodoulou andAnother

(1982)1CLR 771;N.P. LamttsLtd.v.Panayides

(1986)1CLR 490;Hadpchambtsv.Attorney-General

(1986)1C.L.R. 386; 75 PikisJ. Sekavinv.Shlp-PUtonCh»

(1987)where proceedings are directed against physical persons. If addressed toalegalentity,acorporation oracompany,Rule20of the Admiralty Rules provides service must be effected in the manner provided by law for service of legal process upon them. The relevant provisions ofthe Companies Lawarethose ofs.372 5 providing «adocument maybeserved onacompanybyleavingit orsending itbypost to the registered office of the company.» Itis doubtful whether this rule applies to service of judicial proceedings. If that were the case it would appear to me to fall short of complying with the provisions of Article 30.3(a). More 10 likely, Rule 21 regulates service of admiralty proceedings upon legalentities.Thisruleauthorises,interalia,serviceby«leavingan office copy of the writwith the President or otherhead officer, or the clerk, treasurer or secretary of the corporation...». Montanios & Montanios hold none of the above positions in the company. 15 The second part of Rule 21 is inapplicable in this case for its application isconfined to proceedings against public companies. Neither Rule 20 nor Rule 21purport to deal with service upon a toreign defendant. Such service is specifically regulated by a separateruleoftheAdmiraltyRules,notablyRule23.Itprovides: 20 «WherethepersontobeservedisoutofCyprusapplication shall be made to the Court orJudge foran order forleave to serve the writof summons or notice of thewrit.» The leave of the Court is made, as it appears to me from the employment of the word «shall»,a conditionprecedent toservice upon*"a foreign defendant be it a person or a legal entity. It is perfectly understandable that thisshould alsobe soinviewof the provisions of Rule 24 making leaveof the Courtforserviceoutof thejurisdiction dependent onsatisfaction oftheCourtwith regard totalthe existence of a good causeof action, (b)thepropriety ofthe action beingtriedin Cyprus, (c)amenity to locate and serve the defendant and, lastly, (d)his nationality. It is abundantly clear service is not dependent on either the 35 transaction bythedefendant ofbusinessinCyprusassuch,orthe 76 25 30 1C.L.R. Sekavin v.Ship «Platen Ch» PUtUJ, availability of anagent.TheCourtmusthave regard toavariety of factors including the all important one of the probability of the defendant being traced by the means adopted to bring the proceedings to his notice. Rules 23 and 24 reproduce with the 5 necessary statutory ramifications the principle that«... a foreign defendant is, prima facie, not subject to the jurisdiction of the Court.» (PerScott, J~inAltertextInc. v.Advanced Data [1985] 1 ΑίΓτΓΡ.395, 398, letter'B*). 10 15 This being the law the service was wholly irregular and, more importantly, void because itwas effected ina mannercontrary to that specified by the Rules. Departure from the Rules regulating service hasbeen heldinEnglandtorendernulltheservice effected inbreach thereof. Moreso inCyprus, inview of the provisions of Article 30.3(a) of theConstitution. Inthe result, I directthaiservice be set aside. Tothatextentthe application succeeds. The plaintiffs shall pay the costs of these proceedings. Orderaccordingly. 77