(1988)1988August 13 (DEMETRIADES,J.) NAGINAMARKETINGCO., Plaintiffs, v. INTERTRUSTSHIPPING CORPORATIONANDANOTHER, Defendants. (AdmiraltyAction No. 82/88). Admiralty —Admiralty action in rem against cargo— The English Administration ofJustice Act, 1956, s.3
(3)— «Charge» —Meaning of— Persons not having possession ofthecargo,but claimingto be itsowners —Do not have a «charge» on the cargo— Therefore, in theabsence ofaclaimforamaritimelien,noactioninremliesagainst 5 the cargo. Wordsandphrases:«Charge»insection3
(3)oftheEnglishAdministration ofJusticeAct, 1956. The plaintiffs instituted an action in rem against, inter alia, the cargocontained incertaincontainersand,upon exparteapplication, obtainedan orderforthearrestofsuch cargo. 10 Thisisa motion for settingasidethe warrant ofarrest and the writ of summons. The plaintiffs, who claimed to be the owners of the cargo, submitted that they were entitled to institute an action in rem by 15 virtue of section 3
(3)of the English Administration of Justice Act, 1956. Their counsel argued that a claim to title of property by a i?er$«Fttdt in possession of such property is,a«charge» within the meaning ofthe section. Held, setting aside the writof summons:
(1)Aplaintiff can only 20 {{^jcee&by an action in rem against cargo, ifhe hasa maritime lien •ofj£t&rge on it or, else, he isnot entitled to invoke the Admiralty .djunjmction, because hisclaimfalls outside the ambitofsection3
(3)ofthe EnglishAdministrationofJusticeAct1956,whichisapplicable 482 I 1 1 C.L.R. NaginaMarketingv.Intertrust in Cyprus.(Theship ClorianaandAnother v.Breidi
(1982)1 C.L.R. 4 adopted). 5
(2)The issue iswhether the plaintiffs, who claim that they are the owners of the defendant cargo and who do not claim to have a maritime lien on the cargo,have a «charge»on it.
(3)Whatismeantbya«charge»isapecuniaryburden orliabilityto pay money laid upon a person or an estate, inthe present case laid upon a shiporcargo. 10 Here, the plaintiffs claim that they are the owners of the cargo. Therefore, itcannotbesaidthatthecargoisburdened withaliability for payment to the plaintiffs. If the submission of counsel for the plaintiffs is correct, then that means that the plaintiffs can sue themselvesfortherecoveryofmoneyforwhichthecargoisliablefor payment. 15 Action againstcargodismissed. Costs ofapplicationagainstplaintiffs. Casesreferredto: TheSHIP GLORIANA andAnother v.Breidi
(1982)1C.L.R. 4; 20 Smith' s Dock Co. Ltd. v. The St. Merriel(owners), the St.Merriel (1963]2W.L.R.488. Application. Application by the shippers for an order of the Court setting aside the warrant for the arrest of the cargo and the writ of summons. 25 A. Theophilou, for the plaintiffs. St. Mc Bride, for the shippers. G.Michaelides, forScandutch, the owners ofthe 56 containers. £ Lemdnaris with St. Kittis, for the interveners. Cur. adv. vult. 30 DEMETRIADES J. read the following ruling. On the 1st July, 1988, the plaintiffs in this action, on an application filed by them, obtained an order bywhich the cargo, the second defendant in the action, was arrested. On the 7th July, 1988, when the warrant of arrest was made 3 5 returnable in order to give an opportunity to the respondents or •483 D e m e t r i a d e s J. Nagina Marketing v. Intertrust
(1988)any one interested in the cargo tomove the Courtfor its release, two lawyers, one representing the alleged shippers of the cargo and the other representing the owners of the containers in which the cargo isstored, appeared andstated thatthey intendedto file, on behalf of their clients, a motionfor the discharge of the arrest. 5 Inview of this development, the Courtordered thatmotions,if any, for the discharge of the arrest of the cargo, be filed within seven days and oppositions toitwithin seven days thereafter. The shippers filed their motion on the 9th July, 1988 and the owners of thecontainerson the 14thJuly,
- As theplaintiffs filed their 10 opposition within the time prescribed by the orderof the7th July, 1988, themotionswere fixed forhearingonthe22ndJuly,
- On the 19th July, 1988, a Corporation from Taipei, Taiwan, namely, «the Formosan Rubber Group, TaWin IndustrialCo. and Epoch Products Corporation», applied and obtained leave to 15 intervene intheproceedings andon the20th July, 1988 they filed a motion for the discharge of the arrest of the cargo. Their application was opposed by the plaintiffs. On the 22nd July, 1988, the motionsfiled by the shippers and the owners of thecontainerswere heardbutas themotionfiled by 20 the Taiwan Corporationwas served on theplaintiffs' counsel late intheday, hewas giventimetofileanopposition.Thismotion was set for trial on the26th July,
- By the writ of summons filed by the plaintiffs, which is in the form prescribed by theCyprus Admiralty Jurisdiction Order 1893, 25 for a writ of Summons in REM(see Form A in Schedule I of the Order), the plaintiffs claim: «A. 1,264,450.- U.S.A Dollars or its equivalent in Cyprus Pounds, being the value of 1100 M. Tons of P.V.C. (Type BovilM/Suspension GradeΚ61 -66, propertyof thePlaintiff, 30 which was loaded on orabout27.1.88onboard M/V SANTA MARIAI,(whichwas atallmaterialtimeowned by Defendants 1), under Bill of Lading Nos 1 to 22 inclusive, for carriage to India and which was never delivered to destination but was converted to Lebanon at first and now to Cyprus for re- 35 exportation. B. Interest. C. Costs and interest.» 484 1C.L.R. NaginaMarketingv.Intertrust Demetriades J. Thewarrantofarrestwasgivenasaresultof anaffidavit filed by Mrs.Dora Socratous, an advocate in the Office of counsel for the plaintiffs, inwhich itwas stated that the plaintiffs had agreed with the firstdefendants totransport from Turkeyto Indiabytheir ship 5 «M/V SANTA MARIA I» 1100 cubic meters of P.V.C; that the plaintiffs paid the freight and thatafter the cargowasloaded, they weregiven22billsoflading(photocopiesoftheBillsoflading are appended to the affidavit as exhibit No. 1).MrsSocratous in her affidavit further stated that the cargo was never delivered at its 10, destination but it was first transported to Lebanon and part of it was then shipped to Limassol port where atthe time of swearing heraffidavit itwasbeing loaded ontheship«NLCLARENCE» for transportation to Taiwan. Bytheir motion the shippers pray for an order15 (a)settingasidethewarrantforthearrestofthecargoarrested by the order of the Court dated the 1stJuly, 1988, (b)setting aside the writof summons, and (c) increasing the security which the plaintiffs were ordered to furnish. 20 Counsel for the shippers submitted that the warrant of arrest should be discharged asno cause of action in rem liesagainst the cargo. Insupport ofhisargument he relied onthejudgment inthe caseoftheship«GLORIANA»& another v.Breidi,
(1982)1C.L.R. 4. 25 Inarguing hiscase inopposition tothe motion of the shippers, counsel for the plaintiffs stated that their action was based on an action in rem. I shall here quote the relevant extract from his addressasthisappears atpages 10-11 ofthe record: 30 35 «Heretheplaintiffs suedthecargoinrembecausethey have a charge, and Iwill explain myself in a second, on the cargo and under section 3
(3)of the Administration of Justice Act 1956 having a maritime or a charge you can file an action in rem against the ship, the cargo or any other property. The charge in the sense of section 3
(3)isnowhere defined in full. The charge is not denned in full and it should be taken as meaning any registered or unregistered charge on the res.In this instance the plaintiffs claim that the res belongs to them, 485 DemetrtadesJ. NaginaMarketingv.Intertrust
(1988)theyaretheownersoftheres,theyarenotinpossession ofthe resand itisobvious from theappearance ofMr.McBride and his clients the shippers that somebody else together with defendant No. 1 are claiming a right on that res. If any encumbrance shouldbe achargeIsuggestthataclaimontitle 5 on a res which is in possession of some other people is a charge in the sense of section 3
(3)of the Administration of Justice Act1956.Theclaimoftheplaintiffs Ibelieveisproved bythebillsofladingexhibitedintheapplication forthearrest.» In the case of The ship «GLORIANA», (supra), on which the 10 shippers rely, it was held that a plaintiff can only proceed by an action in rem against cargo ifhe has a maritime lien or charge on itor, else, he isnot entitled toinvoke theAdmiraltyjurisdiction of this Court by an action in rem against the cargo because, in that case, hisclaim fallsoutside theambitofsection 3
(3)ofthe English 15 Administration ofJustice Act1956,which isapplicable inCyprus, and thus he hasno maritime lienora charge on the cargo. Inthat case it was further held that if the Court found that it lacked jurisdiction to issue a warrant ofarrest or such warrant wasissued on insufficient grounds, then such order may be discharged and 20 the property may be released. Subsection
(3)of section 3 of the Administration of Justice Act 1956, on which the plaintiffs rely, reads: «Inany case inwhich thereisamaritimelienorothercharge on any ship, aircraft or other property for the amount claimed, 25 the Admiralty jurisdiction of the High Court, the Liverpool Court of Passage and any County Court may be invoked by an action inrem against thatship,aircraft or property». The issue, therefore, that poses for decision in these proceedings, in the light of the argument put forward by counsel 30 for the plaintiffs, iswhether theplaintiffs, who claim that they are the owners of the defendant cargo and who do not claim to have a maritime Henon the cargo,have a «charge» on it. Astowhat theword «charge»meansinthe context ofsection3
(3)of theAdministration ofJusticeAct 1956,1found some assistance 35 in the case oiSmith' sDock Co.Ltd. v. The St. Memel (owners), the Si Merriel, [1963] 2 W.L.R. p. 488, in which itwas held that the words «other charge» do not bear a more extended meaning 486 1 C.L.R. Nagina Marketing v. Intertrust Demetriades J. than the words «charge upon the ship»in the Merchant Shipping Acts,and do not include a possessory lien asthat for repairs. Tomymind,what ismeant bya«charge»isapecuniary burden or liability to pay money laid upon a person or an estate, in the 5' present case laid upon aship orcargo. Here, the plaintiffs claim that they are the ownersof the cargo. Therefore, it cannot be said that the cargo is burdened with a liability for payment to the plaintiffs. Ifthe submission of counsel for the plaintiffs iscorrect, then that means that the plaintiffs can 10 sue themselves for the recovery of money for which the cargo is liable for payment. Inthe result, I find that I have nojurisdiction totrythe actionof the plaintiffs against defendants No. 2, i.e. the cargo. Therefore, the writ against defendants No.2 must beset aside.Itfollows that 15 the action against the cargo is dismissed and that the warrant of arrest isdischarged and the cargoshould be released. Costs ofthisapplication against the plaintiffs. Coststobe assessed bythe Registrar. Action dismissed with costsagainsttheplaintiffs. 20 487