clr/1988/1988_1_337.pdf

(1988)B o w m a n v.Ship «Cutter» Casesreferred to Dupleix[1912]R8, The Feronia

(1868)L R 2A and Ε 65 Admiralty action. Admiralty action for Master's wages for thepenod30 6 1985 2 6 1987 and for £2,600 - disbursements made by plaintiff as a Masteron behalf of thedefendant ship 5 St McBnde, for the plaintiff A Poetis,for the defendant Cur adv vult KOURRIS J read the following judgment By this action the plaintiff claims (

1. a)Master' s wages for thepenod30 6 1985 - 2 6 1986 at £500 per month, amountingto£5,533 33, (
2. b)Master' s wages for the penod 3 6 1986 - 2 6 1987 amounting to£4,800 less£1,148 35 -amount received, 15 (
3. c)Disbursementsmade by theplaintiff as aMasteronbehalf of the defendant ship amountingto£2,600, (
4. d)An order for the delivery to the plaintiff of vanous items of equipment which belong to the plaintiff and which he put on 20 board in order to enable him to navigate the ship «CUTTER»to Cyprus andwhich still remain onboard oralternatively their value amounting to £2,130 23. The plaintiff's claim for £202 for repatnation expenses was abandoned By their answer, the defendant ship denies the claim of the 25 plaintiff and allege that on 13 5 1986 the plaintiff entered into a written agreement with a certainAndreas Protopapasas agent of Chnstodoulos Protopapas and a certain Michael Pilides as agent of Theodoros Georghiou of the one part,Captain R. Bowman of the otherpart, and Coastal Cruisers Ltd ,which isacompanywhich 30 owns the defendant ship of thethirdpart and thatthis agreement is binding on theparties as regards theirclaims against eachother (exhibit 2A) The defendant ship alleges also that it owes nothing for the penod 3 6 1986 -2 6 1987 because the plaintiff did notfulfil his 35 338 10 1C.L.R. Bowman v. Ship «Cutter» KourrlsJ. partof thecontractas hedidnotsecure thenecessary work permit to enable him toperfcrr> his part of the agreement, (exhibit 7). 5 According to the answer of the defendant ship, the agreement dated 13.5.1986 provides that the only amount due by Coastal Cruisers Ltd.totheplaintiff is£2,600 and for thisamount,nolegal action should be taken against the company for non-payment unless a period of 12 months as from the date of the agreement had lapsed. Theplaintiff challenged thevalidity of thisagreement on several 10 grounds andtheissuewhich fallsfor determinationiswhether the agreement isvalid ornot. 15 20 25 30 35 Counselfor theplaintiff contendedthattheagreement doesnot reveal on the face of thedocumentitself thatithas been signed by ΓΙ·nnbehalf of Coastal Cruisers Ltd.and thisiscontrary tos.33(
5. l)(d)of the CompaniesLaw Cap. 113. Further,he said, thateven if the agreement does, on the face of it, comply with the requirements of s.33(
6. l)(
7. b)of Cap. 113, the document does not show that the persons, who signed it. have acted under the authority of Coastal Cruisers Ltd.,express orimplied. Hewenton to say that a person who is acting on the implied authority uf a company must depend upon theArticles of thatcompany andthe Articles of the company in question do not show any such authority having been delegated or capable of being delegated to thepersons alleged by thedefence witnesses tohave signed it.He pointed out that a Manager or official may be givei. authority to sign on behalf of the company by some resolution of the board and no resolutions of the company are recorded in the books of the company that Directors' meetings have taken place dealing with such matter. He said, thattwo deliberations by the Board of Directors are necessary; the first is to decide if the company will enterintotheproposed agreement; andthesecond istoauthorise its signature of the actual signatories, and the minute book of the meetings of the Board of Directorsistheonly substantial evidence that such resolutions were ever taken and no such minute book was produced by the defence. Counsel for the defendant argued thatthesaid agreement was signed by all parties, i.e. Protopapas and Pilides, theplaintiff, and the persons representing the interest of the company, including Nina Procopiou,who was theperson nominatedby theplaintiff as 40 representing his interest in the company. He said that,even if no special meeting of the company has been held, and even if there 339 KourrisJ. Bowman v.Ship «Cutter»

(1988);->re no minutes, the fact is that the persons who signed the agreement could bind the company as it is mentioned in the agrei mert that the company isa party thereto. Ido not agree with thesubmission of counsel forthe defendant ship that allthe persons representing the interestsinthecompany were present, and consequently could bind the company. 5 I am inagreement with theargument of counsel forthe plaintiff on this issue. It is obvious that no resolution was passed by the company to enter into the agreement of 13.5.1986 (exhibit 2A) and no resolution was passed by the company to authorise the 10 signature of the actual signatories in the said agreement. In these circumstances, Ihold that theagreement, exhibit 2Aisnot valid. But, thematterdoes notendthere;the plaintiff, inhisevidence, admitted that the amount which he was claimingagainst Coastal Cruisers Limited was only £2,600 but he tried to differentiate 15 between the company and the defendant ship by stating that during the meeting of 13.5.1986 he did not raise his claims against the defendant ship. I do not accept the explanation of the plaintiff as a correct one. One failsto see whythe plaintiff did not raise his claim against the defendant ship during that meeting 20 when all the parties concerned were present and there was no other person who would represent the ship and to whom the applicant should raise his claim. Further, I fail to see why the plaintiff did not make any reservation as to his claim against the defendant ship during the meeting. Furthermore, the evidence of 25 the plaintiff on this point is contradicted by the evidence of MIchalakis Pilides, whose evidence I accept, that the plaintiff s claimsup to 13.5.1986 were agreed at £2,

1. Another point raised by counsel for the defendant ship is that the action ispremature and should be dismissed for this reason. 30 He said,that accordingtotheagreement dated 13.5.1986 (exhibit 2A), the only amount due by the Coastal Cruisers Limited to the plaintiff is£2,600 and for this amount, no legal action should be taken against the company for non-payment unlessaperiod of 12 months as from the date of the agreement had lapsed; as this 35 action was filed on 10.1.1987, itis, he said, premature. Inviewof my finding that the agreement of 13.5.1986 (exhibit 2(A)isnot a valid one, also,thisterm which iscontained inthesaid agreement, isnot valid and thispoint also fails. 340 1 C.L.R. Bowman v. Ship «Cutter» Kourris J. Again counsel forthe defendant shipcontended thateven ifthe agreement (exhibit2A)wasnotvalid,then theplaintiff isestopped from alleging now that his claim for wages and equipment amounts to more than £2,600 as he signed these documents in 5 which he admits that he has no other claim against the company whatsoever. Idonotthinkthat«estoppel»arisesinthepresent case because ithas not been contended bycounsel for the defendant shipandthereisno evidence thatthepositionofthecompany has been changed for the. worse in view of the signing of the said 10 agreement. I now propose to deal with the plaintiff s claim for master' s wages for the period 3.6.1986 - 2.6.
2. There has been an agreement between Coastal Cruisers Limited and the plaintiff which on 3.6.1986 was reduced in writing and wasproduced in 15 Court as exhibit
3. According to thisagreement, the plaintiff was appointed as Captain ofthe defendant ship «Cutter»atthe agreed salary of £400 monthly. Itshould be noted that Coastal Cruisers Ltd. bought the ship «Cutter» on 23.5.86 and that it is still its owner. 20 Counsel for the defendant alleged that due to the failure of the plaintiff tosecureaworkpermitfrom theappropriateauthoritiesof the Republic he has not been able to render his services and, therefore, he failed to perform his part of the contract and, therefore, he cannot succeed on his claim. Evidence has been 25 adduced that Andreas Protopapas and Michalakis Pilides who were actingonbehalf of Coastal CruisersLimited, made efforts to the appropriate authorities, on behalf of the plaintiff, but the appropriate authorities of the Republic refused to grant a work permitto the plaintiff. 30 Counsel for the plaintiff contended that there was an implied term inthe saidagreement thatthe Coastal Cruisers Limited were to secure the work permit for the plaintiff and in failing to do so, they are guilty of breach of the agreement. Furthermore, he said thatthere hasbeen no aversion inthe answer thatthis agreement 35 failed for impossibility ofperformance. Ithasnotbeen specifically pleaded, counsel for the plaintiff contended, and, consequently, they cannot rely on impossibility of performance of the contract. Pausing here for a moment, Iwould liketostatethatno objection wastaken bycounsel forthe plaintiff when evidence on thispoint 40 wastendered in Court and he cannot complain now. 341 Kourris J. Bowman v. Ship «Cutter»

(1988)Ihave considered the matterand I do not agree thatthere isan implied term that Coastal Cruisers Limited would obtain a work permit for the plaintiff and that their failure to do so made them guilty of breach of the agreement. As there has been no express term in the agreement stating that the Coastal Cruisers Limited would obtain a work permit for the plaintiff, then itwas upon the 5 plaintiff to secure a work permit and his failure to do so does noi entitle him toany claim against Coastal Cruisers Limited.Forthese reasons, the plaintiffs claim for wages for the period 3.6.863.6.1987 fails. Counsel for the defendant ship contended that there is no jurisdiction in rem in the present action because the ship was registered in the name of the company Coastal Cruisers Ltd. on 23.5.1986 and this means that on the date of the institution of these proceedings the owner is Coastal Cruisers Ltd..and notthe 15 persons who were theowners when theplaintiffs claim for salaries for the sum of £5,000 and for the sum of £2,600 for equipment arose. Counsel for the plaintiff argued that all theclaims of the plaintiff as set out in the petition, confer upon the plaintiff in respect 20 thereof, maritime liens which follow the ship despite any change of ownership. Hesubmitted thatthedefendant inthisactionisthe ship itself.«Cutter», and despite the intervention of Coastal Cruisers Ltd., theliability of thedefendant ship,inrem,towards the plaintiff has notbeen extinguished thereby, but the liability of the owners 25 of the defendant ship has been added thereto in personam. In respect of hisargument, he relied on thecase Dapleix, [1912] P.S. He also contended that claims for wages give rise to a maritime lien on the ship as also do claims by a Master in respect of disbursements made on accountof aship and thatthese maritime 30 liens followashipeven aft.jr thesaleintothehandsofathirdparty. He cited Maritime Liens by Thomas, paras. 13, 18 and 438. He further said that the fact that a Master may also be a part owner does not affect the η >tter,and he cited the case The «Feronia*, 3 5 [1868] L.R. 2A & Ε65 (MaritimeLiens by Thomas § 343). I have considered this issue and I am in agreement with the submission of counsel for theplaintiff. Theclaims of theplaintiff as agreed on 13.5.1986 between the parties for the sum of £2,600, 342 10 1 C.L.R- Bowman v. Ship «Cutter» Kourris J. giverisetoamaritime lienand I alsohold that Coastal CruisersLtd.. bydefending thisaction, have added their liability in personam. Foralltheabove reasons,therewillbejudgment forthe plaintiff for£2,600 with costs tobe assessed bythe Registrar. 5 Judgment for plaintiff for£2,600.-with costs. 343