clr/1988/1988_1_163.pdf

(4)oftheAdministration ofJusticeAct, 1956 theplaintiffshould prove who arethe owners ofthe ship. 5 10 Admiralty —Necessaries—The Administration of Justice Act, 1956, section l(l)(m) —Operation or maintenance of ship — What are considered asnecessaries—Radio maritimeservice toshiplyingin port under arrest—Inthe circumstances the claimisnot a claimfor necessaries. The action of the appellants for'money due in respect of radio maritime services rendered to the defendant ship, while she was under arrestattheportofLimassol,wasdismissed byaJudge ofthis Court on the ground that the plaintiffs-appellants failed to prove ownershipoftheship. Hence thisappeal. 15, 20 25 Held, dismissing the appeal:

(1)Persons who equip or provide a ship with necessaries do not acquire any lien over the ship and cannot instituteproceedings inremagainst the ship,unlessit comes withintheambitofsection3

(4)oftheActof 1956underwhich proof of ownership isnecessary to invoke the jurisdiction of the Court. In thiscase the appellants failed toprove ownership.

(2)This Court should proceed and decide whether the servicesin question fallwithinsection 1{1)(m)ofthesameAct,i.e.whetherthey were supplied «for her operation or maintenance». Though in accordance with section 4 of the Merchant Shipping (Wireless Telegraphy) Law, Cap.293,itisobligatoryforall shipsof 1600 tons gross tonnage or upwards to nave a radio telegraph installation, a 163 CYTAv.Ship «Maria» <1988) distinction mustclearlybemadebetweensuchrequirementsforthe purposeofthesafetyoftheshipsuchasforemittingdistresscalls,or relating to navigation movementsand otherneedsof aship,orfor obtaining official meteorological reports etc., and generally for communications for the purposes of the ship's operation and 5 maintenance, and between the use of the ship's communications equipment forotherpurposesnotrelatedtotheship'soperationor maintenance,suchasprivattu;personalcallsofthecrew,asitisthe present case of a ship under arrest, which cannot transform such serviceintoanecessaryservice. 10 Appealdismissedwithcosts. Casesreferred to: TheAlexander(I.W.Rob346), TheRiga [1872]26L.T. 202; TheNRCosfabrick(1856} 166E.R. 1160; 15 TheSophie, 166E.R.610; Christiev.TheKaru

(1927)27SRNSW443. Appeal. Appeal by plaintiffs against the judgment of a Judge of me Supreme Court of Cyprus (Sawides, J.) dated the 22nd 20 December, 1983 (Admiralty Action No. 188/82) whereby their action against the defendant ship for radio maritime services rendered to the defendant Ship, while under arrest in Limassol harbour was dismissed. A.C. Hadjioannou, for the appellants. M.Eliades withA. Skordis, forthe respondent. M. Montanios with S. Panayi (Miss), for the respondents interveners. Cur.adv. wit. TRIANTAFYLLIDES P.: The judgment of the Court will be 30 delivered by H.H. A.Loizou, J.: A.LOIZOUJ.:Thisisan appeal from thejudgmentofajudgeof this Court whereby the action of the appellant/plaintiff Authority against the respondent/defendant ship in respect of radio maritime services rendered to the defendant ship, while under 35 arrest inthe Limassol harbour, wasdismissed with costs. 164 25 1CUR. CYTAv.Ship«Maria» A.LofaouJ. Asthe factual background tothisappeal appears extensivelyin the judgment of the learned trial Judge (reported in

(1983)1 C.L.R. 825), it is not necessary for us to repeat it. We shall only deal,therefore, withthe effect ofthe judgment. 5 Itwasheldtherein bythelearnedtrialJudge,without, however, deciding whether the services in question were of such nature as tofallwithinprovisionsofsection 1

(1)(m)oftheAdministrationof JusticeAct1956,ontheassumption thatsuchserviceswerewithin theambitofsuchsection,thattheplaintiff upon whomthe burden 10 wastoprovethattheshipatthetimewhentheactionwasbrought wasbeneficially ownedasrespectsallsharesthereinbythe person who would beliable on theclaimwhen thecause ofaction arose, could not invoke the jurisdiction of this Court against the defendant shipbyanactioninrem undersubsection

(4)ofsection 15 3 of the Act of 1956. This was so bemuse they had failed to discharge such burden, astheycould not relytoprove ownership on information suppliedby theradiooperatoroftheshipastothe names of itsowners (whosenames alsoappeared onthe invoices produced) since such was considered as hearsay evidence. The 20 defendant and the intervenersonthe other hand,allegedthat the ownerswere another company which had mortgaged trie ship to the interveners. The main argument ofthe appellantAuthority wasthatthetrial Court wrongly dismissed the action on the issue of jurisdiction 25 which in fact had not been raised in the pleadings and in respect ofwhich itwaswronglydecidedthatthepresentappellanthad an obligation toprove whotheownersofthedefendant shipwere.It was contended that they had infact been informed astowho the ownerswerebytheMasteroftheshipwhoistheauthorized agent 30 of theshipowners, therefore thetrialCourtwronglyheldthat they failed to prove ownership. But irrespective of this, it was further contended that such services had in fact been rendered at the request oftheMasteroftheship,through the radiooperator, who isthe authorized agent of the shipowners. 35 Finally it was submitted that in any event the radio maritime services in question came within the meaning of section l(l)m of the 1956Actbeingserviceswhichcan betermed asnecessariesin the sense of being supplied to the ship «for her operation or maintenance» asdefined therein. 165 A. Lofaou CYTAτ.SUp«Maria»

(1988)On the issue of jurisdiction extensive reference has been made by the learned trial Judge to the law applicable, so we need not repeat it again. Suffice it for us to say thatpersons who equip or provide a ship with necessaries do not acquire any lien over the ship and cannot institute proceedings in rem against the ship 5 unless itcomeswithintheambitof sesction 3

(4)of theActof 1956 under which proof of ownership is necessary to invoke the jurisdiction of the Court.Thisthe appellantAuthority failed to do andwe find thatthefindings ofthelearnedtrialJudge onthispoint aredulywarrantedby theevidence adduced.Ontheonehandthe 10 evidence of the radio operator being hearsay is of no probative value, but even if it were not so, the appellant has failed to establish the actual owner of the ship, since this is what proof of ownership means. We agree therefore with the learned trial Judge that th appellant Authority having failed to discharge the burden cast upon them, cannotinvoke thejurisdictionofthisCourtagainstthe respondent ship by an actioninrem undersection 3

(4)of theAct of 1956. 15 Though the next issue was not decided by the trial Court,we 20 feel thatinthecircumstanceswe should proceed toconsiderasto whether the radio services supplied fall within the provisions of section 1

(1)(m), that is whether they were so supplied «for her operation ormaintenance». The learned trial Judge has extensively referred to numerous authorities onwhat is regarded as «necessaries»and what isnot. 25 As held in *TheAlexander» (I.W. Rob.346), the onus of proof is on the person making such advances to prove that they were necessary for the use, operationand maintenanceof theship. The general rule is thatnecessaries are deemed tobe things fit and proper for the service of the ship such as a prudent owner would have ordered. See «TheRiga»

(1872)26 L.T. 202. 30 The following have inter alia been considered as necessaries: repairs toa ship, anchors,cables, rigging, provisions for crew on board (butcher's meat), {The NR Gosfabnck

(1958)166 ER 35 1160); stevedoring, copper sheathing, coals, money expended upon necessaries thoughinsuch cases theCourtmustbe satisfied that the necessaries were wanting and that the money was 166 1 C.L.R. CYTAv.Ship«Maria» A.LolzouJ. advanced bona fide for the purpose of procuring them, - (The Sophie, 166 ER 610). In considering what goods or services supplied to a ship are «necessaries» so as to enable the person supplying them to 5 maintain an action inrem intheAdmiralty Courtitisnot essential that such goods or services should have been supplied in some sudden emergency or to meet some urgent need but the test is what a prudent owner would have considered reasonable in the circumstances. (Christie v. TheKaru

(1927)27 SRNSW443). 10 Of course it has correctly been so argued by the appellant Authority, inaccordance withsection 4 oftheMerchant Shipping (Wireless Telegraphy) Law, Cap. 293,itisobligatory for all ships of 1600tons grosstonnage orupwards to have aradio telegraph installation. Also the English Merchant Shipping (Radio) Rules, 15 1965, impose particular standards with regard to radio telegraph orradiotelephone equipmenttobecarriedbyshipsdepending on their size and function. However, we believe, a distinction must clearlybemadebetween suchrequirementsforthepurposeofthe safety of the ship,such as for emitting distress calls,orrelating to 20 navigation movements andotherneeds of aship,orfor obtaining official meteorological reports etc., and generally for communications for the purposes of the ship's operation and maintenance, and between the use of theship's communications equipment for other purposes not related to the ship's operation 25 or maintenance, such asprivateorpersonal callsofthecrew, asit isthepresent case of a ship under arrest, which cannot transform such service intoa necessaryservice.From the authorities it does not transpire and we are unable to reach a conclusion that the claim in question isa claim for necessaries as we consider that it 30 does notcome withintheprovisionsofsection 1(l)(m). For allthe above reasons we have come tothe conclusion that the learned trial Judge rightly decided as he did. This appeal therefore failsand ishereby dismissed with costs. Appeal dismissed with costs 167