← Κύπρος

clr/1988/1988_1_488.pdf

(1988)1988August23 (SAWIDES.J.) WORLDTIDESHIPPING CORPORATION OFLIBERIA, Plaintiffs, v. VASSILIKOCEMENTWORKSLTD., Defendants. (AdmiraltyAction No. 64/75). Admiralty —Practice— Whether possible toadd bythepetition a cause of action, not included in the writ of summons — Question determined inthenegative — 0.20, r.4ofthe OldEnglishRules and O.20 Rule 1Aof the CivilProcedure Rules. Admiralty — Practice—Set off as a„defence —Claim for despatch money —Defendants entitled toraisetheirclaimby wayofsetoffto plaintiffs' claims. 5 Carriageofgoods bysea—Shortiandedgoods, claimfor—Who canraise such a claim— The holders and/or indorsees of the relevant billof lading —Allegation by shipper thatsuch holders and/or indorsees 10 deducted from the price of the goods the amount of the relevant claim—In the absence of production of a deed of subrogation, shippers cannot recover. Agency —Money paid to agent —Instmctions by payer to release the amount to the principal —Retention of the money by the agent — Principalcannot claimfrom thepayer, but only from his agent. 15 The plaintiffs' claim in the writ is for U.S. Dollars 345,053.70 beingbalance offreight and/orhireand/ordemurragerelatingtothe carriagebythevessels«THERAIOS»,«CHRYSSOPIGI2», -ELENA. and «SOPHIE»of cement from Cyprustoport Harcourt, Nigeria, by 20 virtue ofan agreement concluded between plaintiffs and defendants on orabout the29th January, 1975. By their petition the claim wasreduced to 145,053.70, as, in the meantime the defendants had paid200,000 U.S.Dollars. 488 1 C.L.R. 5 WorldTidev.Vasslllko Cement However, the petition introduced a new cause of action for U.S. Dollars 255,212.50 damages for breach of the said contract by the defendants in that they refused to tender for loading or having refused to load 6675 metric tons of cement, balance of the agreed quantityunder the contract. The parties agreed the demurrages payable, if the plaintiffs succeed, at 315,000 U.S. Dollars less 200,000 U.S.Dollarspaid as aforesaid. The defendants claimed further a deduction of 25,000 U.S.Dollarspaidbythem allegedlytoplaintiffs' agentsinCyprus. 10 Theparties,also,agreed that: (a) The claim of the defendants for despatch money would be reducedto 17,000 U.S.Dollars. (b) The balance of freight due by the defendants is22,366 U.S. Dollars. 15 20 25 30 The quantity of the cement, which had been actually transported under the contract, was transported by four ships, THERAIOS, CHRYSSOPIGI, ELENA and SOPHIE. The defendants disputed liability fordemurrages inrespect ofthe lastthree ships. .'-TSeamount of25,000 U.S.Dollars,hereinabove referred to,was paidbythedefendants totheplaintiff sagentsintrustuntilclearance of some disputes. When, however, the defendants instructed the recipients of the money to release the funds to the plaintiffs, the recipients,who, inthemeantime,-had ceased toactasthe plaintiffs' Bffents, retained the sameon accountofj^lSmqf theirown against theplaintiffs. The plaintiffs, asaresult,instituted proceedings against theirformeragentsfortherecoveryofthesaidsum. The defendants claimed also to set off 17,000 U.S. Dollars Jlespatcrfexpensesallegedly payableb'yjfieplain^ffilo them. They also claim to set off a claim for short delivery of the goods. In this respect, the defendants alleged that the consignees of the goods deducted the relevant amount from the price payable by them. Held,
(1)Itisnotpossible tointroduce bythepetition anew cause ofaction, which had notbeen included inthewrit.Itfollows thatthe claim fordamages for breach ofcontract has tobe dismissed. 35 40
(2)Theplaintiffs areentitled aspertheagreement ofthepartiesto 22,366 U.S.Dollars,balance offreight due.
(3)On the material before it, this Court is satisfied that plaintiffs have proved their entitlements to demurrages amounting to U.S. Dollars 315,000 out of which 200,000 have been paid, leaving a balanceof U.S. dollars 115,000. 489 World Tide v. VassUlko Cement
(1988)
(4)When defendants instructed theplaintiffs' agents to release to the plaintiffs the 25,000 U S Dollars the plaintiffs were entitled to collect from their agents such amount irrespective of the fact that after the collection of such amount by the agents, they ceased to operate as agents If the plaintiffs had any claim in respect of such 5 amount they should turn against their agents by taking judicial proceedings against them for misappropnation of this amount, as they nghtly did by institutingan actionagainst thembuttheyhad no nght torefute payment of such amountby defendants
(5)Inthelight of the English Rules applicable toAdmiralty actions the defendants could raise aclaim such as the one for the despatch moneyby way of set off Inthelightoftheevidence,thisclaimshould be accepted
(6)What emanates from the evidence part of the cementwas not delivered because ithas become solid («caked») andremainedm the holdsof thevessel Noevidence was adducedthatthe non-discharge of any quantity was due to any fault of the plaintiffs The only persons entitledtoclaim for short landed good were the indorsees or holders of the relevant Bill of Lading Though the defendants alleged that the latter deducted the amount from sums due to the defendants, the lattercan still notrecover as they didnot produce any deed of subrogation to the nghts of the indorsees or holders of thebills 10 15 20
(7)The defendants failed tosubstantiate theircounter-claims Judgments for plaintiffs for US 25 Dollars95,366 withinterestat 9% as from the delivery of this judgment and costs Counterclaim dismissedwithno orderastocosts 3Q Cases referred to Cave ν Crew,62 LJ Ch 530, United Telephone Company Limited ν Tasker, Sons and Co 59 L T 852 Admiralty action. Admiralty action for the sum of U S Dollars 345,053 70 being 35 balance of freight and/or hire and/or demurrage relating to the carnage by the vessels «THERAIOS», «CHRYSSOPIGI 2» and «SOPHIE» of cement from Cyprus to port Harcourt Nigena G Mtchaehdes, for the plaintiffs. 490 1 C.L.R. WorldTide v. VassUiko Cement M. Christofides,for the defendants. Cur.adv. vult. SAWIDES J. read the following judgment. Plaintiffs' claim in this action against the defendants is, according to.the writ of 5 summons, for the sum of U.S.Dollars345,053.70 being balance offreight and/orhireand/ordemurrage relatingtothecarriageby the vessels «THERAIOS», «CHRYSSOPIGI 2», «ELENA» and «SOPHIE» of cement from Cyprus to port Harcourt, Nigeria, by .virtue of an agreement concluded between plaintiffs and 10 defendants on or about the 29th January,
  1. On the writ of summons it is,stated by plaintiffs that their claim is made with reservation of their rights for other claims they may have against the defendants. By their petition dated 17th July, 1976 the plaintiffs reduced 15 their aforesaid claim to U.S. Dollars 145,053.70 as in the meantime the defendants had paid U.S. Dollars 200,000 in December, 1975, but by paragraph 7 of their petition they introduced a new cause of action for breach of the aforesaid contract by the defendants in that they refused to tender for 20 loading or having refused to load'6675 metric tons of cement, balance of the agreed quantity under the contract, for which plaintiffs claim damages amounting to U.S.Dollars 255,212.
  2. Bytheiranswerandcounterclaim thedefendants denythatthey are indebted tothe plaintiffs inrespectof anyamount orthat they 25 vft&rein breach of the agreement and they allege a breach of the agreement by the plaintiffs who failed to provide the necessary transport for the balance of the cement agreed to be transported. Their counterclaim is for damages for breach of contract, for services rendered by them at the request of the plaintiffs for 30 expeditingthecollection ofdemurragesanddamagesinrespectof shortlanded goods. Before embarking on the issues before me Ishall deal briefly with the additional cause of action introduced by paragraph 7of the petition. 35 Paragraph 7ofthepetition readsas follows: «7.Inbreachofthesaidagreementthedefendants have not tendered for loading and/or have refused to load or offer to load the balance of the agreed quantity of cement i.e. 6675 491 SawidesJ. World Tidev. Vassfliko Cement
(1988)metrictons (25000 -18325) and inconsequence the plaintiffs have suffered the following damages: (
  1. a)Lossoffreight 6675metrictonsat U.S.$25.50permetricton (
  2. b)Lossofdemurragesatthe dischargingport U.S.$170,212.50 5 U.S.$175,000.00 Total U.S.$345,212.50 Lessplaintiff' scostsfor thetransportofthiscargo U.S.$90,000.00 U.S.$255,212.50» 10 Under rule 1A of Order 20 of the Civil Procedure Rules «Whenever a statement of claim is delivered the plaintiff may therein alter, modify, orextend hisclaim without any amendment of the indorsement of thewrit.» The said rule corresponds verbatim to rule4 of Order 20of the 15 R.S.C. in England (the old rules in force in 1960; see Annual Practice 1960). In the relevant notes to the said rule we read the following inthisrespect at p.493: «Hence the plaintiff is permitted in his subsequent statementofclaim,toalter,modify orextendhisoriginalclaim 20 to any extent, and to claim further or other relief, without amending hiswrit(Largev. Large,
(1877)W.N. 198; Johnson v. Palmer, 4 C.P.D. 258); provided he does not completely change the cause of action indorsed on the writ without amending the latter (Cave v. Crew, 62 L.J.Ch. 530; Ker v. 25 Williams, 30 S.J. 238); or introduce an entirely new and additional cause of action whichcannot beconveniently tried with the original claim (United Telephone Co. v. Tasker, 59 L.T. 852) or introduce a claim which the Court has no jurisdiction to entertain -e.g.a claim which, ifindorsed upon 30 a writ, would not have been allowed to be served out of the jurisdiction: IVafernouse v.Reid
(1938),54T.L.R. 332.» In Bullen &Leake and Jacob's Precedents of Pleadings, 12th ed. at p.70 it reads as follows under the heading: «Altering, modifying or extending claim indorsed on the writ.» 492 35 1 C.L.R. 5 10 15 World T i d e v.VassllJko C e m e n t S a w i d e eJ . «Where thestatementof claim isnotindorsed onthe writ, but is a separate document,whether served with thewrit or later, itmust, ingeneral, confine itself tothecauses ofaction mentionedinthegeneral indorsementonthewritwhichitself consistsofaconcisestatementofthenatureoftheclaimmade ortherelief orremedyrequiredintheaction.Accordingly, the statementof claimmustnotcontainanyallegation orclaim in respect of a cause of action unless that cause of action is mentionedinthewrit orarises from facts which arethesame as or include, or form part of, facts givingrisetoa cause of actionsomentioned.Subject tosuchlimitation,theplaintiff is permittedinhisstatementof claimtoalter,modify orextend any claimmadeby himintheindorsementofthewritwithout amending the indorsement. But this does not entitle the plaintiff completelytochangethecauseofactionindorsedon thewrit,ortointroduceanentirelynewandadditional cause of action, or to introduce a claim which the court has no jurisdiction toentertain.» InCavev. Crew, 62L.J.Ch.530aplaintiff indorsedhiswritwith 20 a claim for an account of partnership dealings between himself and the defendant. By his statement of claim he charged the defendant with certain alleged misrepresentations, and claimed, besides the relief mentioned in the writ, return of the premium paid by himtothedefendant. Thedefendant moved tostrikeout 25 thestatementof claim as embarrassing. Kekewich, J., ingranting theapplication hadthistosay atp.531: 30 35 40 i «This motionraises a question of some little difficulty. On the one hand it is desirable to give a liberal construction to Order XX, rule 4, and one cannot shut_one^s eyes to the Ϊtendencyto makepleadings lessexact than they used tq.be. Ontheotherhand,iftherearetobe pleadings atall,thereis agreatadvantage inholdingthattheyshoulddefine theissues between theparties,andthatneitherpartyshouldatanytime be embarrassed by the pleadings of the other side. One is unwilling here to increase the costs by ordering a separate action to be brought, and one is unwilling also toprevent a reference toarbitration.Itisdiffucult tosteerclearunderthese circumstances,andIhardlyknowhowtodoit.Awritherewas issued ofthesimplest character. Itdoesnotaskfor dissolution of thepartnership,butitisobvious thatthatisimplied. Itasks for partnershipaccountsandotherrelief.Therewould beno 493 SawidesJ. WoridTldev.VasslUkoGewent
(1988)difficulty ingetting a decree on that,butthedefendant would beentitledtostayproceedingsforthepurpose ofreferring the matter to arbitration under the clause in the partnership articles, for, according to the well recognized rule, these accounts ought tobe referred toarbitration.Thestatement of 5 claim wasdelivered on the20th ofJanuary,and,asframed, it would entirely prevent a reference to arbitration. Ithink that pointaffords asolutionofthedifficulty, whichotherwisemight appear greater than itreally is. Itissaid that the statementof claim is not an 'alteration, modification, or extension' of the 10 jpwritwitHihOrderXX/rule4.LetusseewhatthestatemerrTo"f claim really is. (His Lordship read various paragraphs in the statement of claim, and continued:) On these statements which allege misrepresentation, theplaintiff asksfor returnof the premiums and damages. No indication of that claim is 15 found in the writ. The rule does not, in my opinion, apply to an alteration bythe claimwhich changesthewhole character of the action. The claim here isnotwithinthe purview of the writat all.Icannot settle theplaintiff' spleading for him, and Icannot separate those parts of the claim which are covered 20 by thewritfrom those whichare not.1thinkthe bestthing to do isto strike out the statement of claim, giving liberty to the plaintiff to deliver within fourteen days another statement of claimpursuant to the indorsementjof thewrit». In the case of the United Telephone Company Limited v. 25 Tasker,Sons and Co., 59L.T.852,an action wascommenced by the plaintiffs in 1884 against the defendants for alleged infringement of the plaintiffs' patent. That action was, however discontinued in consequence of the evidence adduced by the defendants on interlocutory proceedings, and the plaintiffs paid 30 the costs.Theplaintiffs, inMay,1888,commenced another action against the defendants for the same object; and bytheirwritthey claimed an injunction, delivery up of the infringing instruments, and an account, or damages and costs.The statement of claimin thesecondactioncontainedanallegationthat,sincediscontinuing 35 the former action, the plaintiffs had discovered that the defendants' evidence which led to its discontinuance was false. The statement of claim then contained a claim (which did not appear in the writ) that the second action might be treated as supplemental to the previous action, and that the defendants 40 might be ordered to repay the costspaid tothem inthe previous 494 1 C.L.R. WorldTide v. Vassiliko Cement S a w i d e s J. action,andtopaythecosts,charges,andexpensesofthe plaintiffs of that action as between solicitorand client. Kay, J. in the circumstances of the case found that it was inegular to introduce intothestatement of claim a different cause 5 of action not mentioned in the writ; that the causes of action contained in the statement of claim were entirely separate and distinct; and that the two paragraphs above mentioned must be struck out, leavingthe plaintiffs tobringa separate action. Inthe present case plaintiffs' claim as per their indorsement is 10 onlyinrespect of balance of freight and demurrage due for cargo carriedbycertain specifically named ships.Atthetimeofthe filing oftheirwrittheywereawareoftheexistenceofother independent claims against the defendants in respect of which they expressly reserved theirrightsforaseparate action. Byparagraph 7of their 15i petition they have introduced a different, separate and distinct causeofactionnotmentioned inthewrit.Thisisclearlynotacaseofa mere alteration, modification or extension of the claim but an introduction of a new cause of action which is not within the purview of the writat alland in the circumstances paragraph 7of 20 the petition and theconsequential prayerbased thereon hasto be struckout,leavingtheplaintiffs atlibertytobringaseparate action ifthey sowish. Evidence which was allowed to go in, in respect of such claim may be only relevant to the issue.raised in the counterclaim 25 alleging breach by the plaintiffs of their contract of carriage of defendants' sgoods. The plaintiffs are a limited company incorporated in Monrovia, Liberiaand are carryingonshippingbusinessinGreeceand other parts of.the world. The defendants are also a company of limited 30 liability registered in Cyprus and they are manufacturers of cement. By an agreement concluded by telexes and telephone between the partiesduringthe period 28.1.1975 -15.2.1975, the plaintiffs undertook to transport by sea, 25,000 metric tons of cement (10% more or lessat defendants' option, to be declared 35 .by the 15th February, 1975) from Lamaca or Limassol, to Port Harcourt, Nigeria,on account of the defendants. Thetermsof the contract, asalleged by plaintiffs, are as follows: «(a) The freight was to be at the rate of U.S. $25.50 per 495 SawidesJ . WorldTidev.VaselllkoCement
(1988)metrictonBillofLadingweightFIOSpayableuponsigningof billoflading. (b)Discharge 'free out' wastobeatanaverage750metric tonsperweatherworkingdayof24consecutivehoursshex evenifusedtimetocommencetocount24hoursafternotice 5 ofreadinesswhetherthevesselwasinberthornot. (c)Demurrage ratewastobeatU.S.$0.40permetricton loaded,(billofladingweight),withmaximumU.S.$3,500per dayandthepaymentofdemurrage,ifanyatdischargingtobe made by buyers/receivers - who were the Nigeria North 10 Eastern State Government - upon presentation to them of Master's Statement. If, however, above government authorities fail to effect payment same will be made by defendants within 30 days from the date that defendants receive statement of facts and time sheet duly signed by 15 receivers,agentsandmasters. (d)Despatch moneywastobehalfthedemurragerate.» According tothe defendants thetermsofthe contract wereas follows: «(a)Shipment of the aforesaid quantity tobe made within 20 period 1stFebruary,to 15thMarch 1975(nomorethanone vessel to be accepted as ready for' loading simultaneously) from Larnaca orLimassoltoPortHarcourt,Nigeria. (b)Loadingfree inat200metrictonsper workable hatch with maximum 1,000 tons, per WWD of 24 consecutive 25 'hours.Timetocommenceto.countat08iX)ifepiirs;aUhenext working day after Master tend*.-.» notice of readiness. Time from noon Saturday or day preceding a holiday to 08.00 hoursonMondayordayfollowingaholidaynottocounteven ~„ ifused. (c)Discharge 'free out'ataverage750tonsperWWDof24 consecutivehoursSHEXevenifused.Timetocommenceto count 24 hours after notice of readiness whether vessel in berthornot. (d)Demurrage rateatbothendsatU.S.Dollars0.40 (forty 35 U.S. Cents) per ton loaded (bill of lading weight) with maximum U.S. Dollars 3,500 per day, whichever is the lowest. 496 1C.L.B. WoridTidev.VassfltkoCement fTriitUimfc (e)Despatch money half the demurrage rate. (0Paymentofdemurrage,ifany,atloadingporttobe made byDefendants ascharterers/shippers together with freight on signingbillof lading. 5 10 15 20 (g)PaymenfiSf demurrage, ifany, atdischargingfjort to be madebybuyers/receivers -whichistheNigeriaNorth Eastern State Government - upon presentation to them of Master' s statement. If, however, above Government authoritiesfail to effect payment same will be made by the Defendants, as charterers, within 30 days from the dateof receiptbythemof statement of facts and time-sheet, duly signed by receivers.agents and Master: Provided that the Defendants shall notbeliabletopayanydemurrage (incasethe aforesaid GovernmentAuthoritiesfailed toeffectpayment) inrespectof the first shipments, i.e. in respect of m/v «ELENA»and m/v «SOPHIE»and thatthe payment of fuch demurrage ifany,at discharging port shall be arranged between the Plaintiffs and the Nigeria receivers directly. (h)Freight: U.S.Dollars25.50 per metricton, bill oflading weight FIOSpayable upon signingbillof lading. (i)Otherwise GENCON Charterparty.» Itshould be noted atthisstate that according to the contentsof plaintiffs' telexdated 28th January, 1975,theplaintiffs expressly constituted astheiragentsinCyprusinrespect ofthiscontract the 25 Cyprian Seaways Agencies Ltd. of Limassol. Incompliancewiththesaidcontractaquantityof 18,325tonsof cement was loaded by the defendants on ships supplied by plaintiffs as follows:Vessel 30 THERAIOS CHRYSSOPIGI ELENA'' SOPHIE Quantity 5,200 4,850 5,200 3,075 Loadihg'vpmmencedon21stFebruary, 1975andendedonthe 35 21st March, 1975 (having been extended from the 15th March, 1975).Itisallegedbythedefendants thatoutoftheabovequantity 497 Sawides J . WorldTidev.VasslUkoCement
(1988)a quantity of 1043.9tonswasshort-delivered totheknowledgeof plaintiffs' agents in Nigeria. The freight and demurrages claimed bythe plaintiffs, accordingtotheparticularssetoutinthe petition, amounttoU.S.$345,053.70.Aftertheinstitutionoftheactionthe defendants paid U.S.$200,000 on account of the said sum, thus 5 leaving a balance of U.S. $145,053.70 which isclaimed by the plaintiffs. The defendants dispute the amount of demurrages and allege thatthe demurrages were as follows: (
  1. a)THERAIOS, U.S. $61,498.74 instead of U.S. $65,918.74 10 claimed. (
  2. b)CHRYSOPIGI, U.S. $112,540.50 instead of U.S. $127,196.68. (c)ELENA, U.S.$106,457.10 instead of U.S.$107,086.72. (d)SOPHIE, U.S.$21,709.50 instead of U.S. $27,425.56. 15 Itisfurther alleged that inthecase ofCHRYSOPIGI fhemwnches were not working properly and.the Nigerjafueceivers deductedsix days, one hour and 30 minutes from the demurrage time. . Itisthecontention ofthedefendants thataccordingtotheterms of the contract and in particular term (g)mentioned hereinabove 20 they were only liable to pay demurrages in respect of the ship THERAIOS only and not liablefor the other threeships. It is further alleged by the defendants that in addition to the amounts admitted by the plaintiffs as having been paid to them, the defendants paid an additional sum of U.S. $25,000 through 25 the Cyprus agents of the plaintiffs. The defendants further allege that they are entitled to recover from the plaintiffs a sum of £6,193 being plaintiffs' share in expenses incurred bythe defendant attherequest of the plaintiffs to expedite the payment by the Nigerian receivers of the 30 demurrages claimed by plaintiffs. Such amount is claimed in respect ofexpenses incurred bythedefendants forinstitutinglegal proceedings in the High Court of Justice in England, to recover demurrages and also for sending representatives to Lagos and London on three occasions,forsuch purpose. 35 In the course of the hearing counsel informed the Court that they reached an agreement on certain claimsas follows: 498 1 C.L.R. WoridTide v.VassUiko Cement S a w i d e s J. (a)In case plaintiffs succeed in their claim the demurrages are agreed at315,000 U.S.dollarsas follows: 5 - Vessel ELENA . SOPHIE » CHRYSOPIGI THERAIOS U.S. » » » Dollars » » » 109,680 24,885 114,520 65,914 Out oftheabove asumof200,000 U.S.dollarswaspaid asper para.6 ofthe petition. The defendants further claimtobe entitled toadeduction of an 10 additional sum of 25,000 U.S. dollars paid to plaintiffs' agents subject totheirbeingsuccessful inthis respect. (b)Defendants' claimfordespatch moneyisreduced to 17,000 U.S. dollars. (
  3. c)The amount of U.S. dollars 447,921.09 mentioned in ^5 paragraph 8oftheanswerasrenderedtoplaintiffs for freighttobe reduced byU.S.dollars3,000 whichisthedifference whicharose asaresult of exhange differences. (
  4. d)The balance of freight due by the defendants is agreed at U.S. dollars22,366 a figure reached bydeductingthe amountof 20 U.S.dollars444,921.09 renderedbydefendants from theamount of U.S.dollars467,287.50 claimed by plaintiffs. Having dealt with the facts of the case I am now coming to embark on thevariousissuesbefore me. (A)FREIGHTDUE:Inthelightofthestatementsand admissions 25 made the plaintiffs areentitled to the sum of U.S.dollars 22,366 • for balance of freight. (B) DEMURRAGES: The amount of·demurrages has already been agreed at U.S. dollars 315,000 out of which a sum of U.S. dollars 200,000 has been paid leaving a balance of U.S. dollars 30 115,000. Itistheallegationofthedefendantsthattheyareonlyresponsible for the demurrages in respecFof the ship THERAIOS which has already been agreed as being U.S^dollars65,914 and deny any liability for demurrages of the other.three ships amounting to 35 249,086 U.S. dollars. The defendants base their claim in this respect to the contents of the Bills of Lading issued with the 499 SawidesJ. WorldTidev.VassUikoCement
(1988)loading ofthe goods.Iftheirallegation isaccepted ascorrect then itmeans that though the defendants' liabilityfor demurrages was only for U.S. dollars 65,914 (ship THERAIOS) they paid the plaintiffs on account U.S. dollars 200,000 an amount by far in excesstowhat they owed. 5 Byhis written address counsel for defendants in an attempt to explain why such amount waspaid offered an explanation that as the defendants succeeded to collect from the Nigeria North Eastern State Government 77.5% of the demurrages, they paid this amount to the plaintiffs. The question however remains why 10 once neither the receivers nor the defendants were liable for the payment of demurrages for the three ships they paid just for no reason such a bigamount for demurrages. Were they doing itout of charity or because they were bound under the terms of their agreement? * *5 On the material before me and thetermsofthecontractasmay be deduced from all telexes exchanged between the parties and the oral evidence I find that the payment of demurrages at discharging port in respect of all consignments were payable by the buyers/receivers - The Nigerian North Eastern State 20 Government -upon presentation to them ofMaster' sStatement. In casethe said receivers failed to effect payment same would be made bydefendants within30daysfrom thedate that defendants received statements of facts and time-sheet duly signed by receivers, agents and master. Infact such statements asaforesaid 25 had been received bythe defendants. On the material before me I am satisfied that plaintiffs have provedtheirentitlementstodemurragesamountingtoU.S.dollars 315,000 out of which 200,000 have been paid, leavinga balance of U.S.dollars 115,
  1. (C)PAYMENTOFANADDITIONALSUMOFU.S.DOLLARS 25,
  2. Itisthe allegation of the defendants that they have paid this amount to the plaintiffs through plaintiffs' agents in Cyprus, namely, CyprianSeawaysAgencies Ltd. Itiscommon ground thattheamountofU.S.dollars25,000was 35 paid by the defendants to the plaintiffs' agents in Cyprus, the Cyprian Seaways Agencies Ltd. in October,
  3. According to the evidenceof P.W. 1 thePresidentofthePlaintiff Company and P.W2thisamount waspaid toplaintiffs' agentstobeheldintrust for both parties until thesettlement of certain disputesafter which 40 500 30 JCX.H. WorldTidev.VassWkoCement Sawides J. itwouldbereleased totheplaintiffs and betransmitted tothemby their agents. Furthermore in the course of the hearing counsel representing both partiesmade ajointstatement inthisrespectto the effect that the sum of U.S. dollars 25,000 was paid by the 5 defendants through theCyprianSeawaysAgenciesLtdwhoatthe time acted astheplaintiffs' agentsfortheirvesselsinCyprus,into ajointaccountwiththeplaintiffs asaguaranteeuntil theclearance of various disputes between the litigants. According to the evidence of P.W.1thedefendants, sometimelater,instructed the 10 Cyprian Seaways Ltd to pay to the plaintiffs the said sum but the said company, which in the meantime ceased toact as plaintiffs' agents,informed theplaintiffs thattheywouldretainsuch amount themselves as they had to receive from the plaintiffs an equal amount.Asaresultplaintiffs broughtanactionagainsttheiragents 15 for the collection of such amount. Itisclear that at the time the aforesaid amount was paid to the CyprianSeaways Ltd.,CyprianSeaways Ltd.wastheagentofthe plaintiffs acting on their behalf and the amount of U.S. dollars 25,000 was paid to them as agents of the plaintiffs. When the 20 defendants released this amount and instructed the Cyprian Seaways Ltd. to pay itto the plaintiffs, the plaintiffs were entitled to collect from their agents such amount irrespective of the fact thatafterthecollection ofsuchamountbytheagents,theyceased to operate as agents. If the plaintiffs had any claim in respect of 25 such amount they should turn against their agents by taking judicial proceedings against them for misappropriation of this amount,astheyrightlydidbyinstitutinganactionagainstthembut theyhadnorighttorefute paymentofsuchamountbydefendants. The defendants further claim to set off against the plaintiffs' 30 claim an amount of U.S. dollarsl17,000 as despatch expenses payable by the plaintiffs to them. Bearing in mind the fact thatin Admiralty Actions the English Rules of the Supreme Court are applicable, the defendants are entitled to raise by their defence such a claim bywayof set off. 35 Inaccordance with the terms of the agreement as embodiedin the telexes, the defendants were entitled to claim from the plaintiffs despatch expenses at the point of loading at the rateof one-half of the agreed rate of demunages. According to the statement made byCounsel on both sides,the amount of despatch 40 expenses has been agreed at U.S. dollars 17,
  4. This amount hasnotbeen disputed eitherbytheevidenceoftheplaintiffs orby 501 Sawides J. WorldTidev.VasslIUtoCement
(1988)the written address of their counsel. Inthe result they are entitled toset off thisamount against plaintiffs' claim. A further claim which the defendants seek to set off against plaintiffs' claim isinrespect ofshort delivered goods.Thisclaimis based onthestatementsoffactswhichweresignedbytheparties' 5 shipping agents in Nigeria and by the Master. What however emanates from such statements isthat part of the cement was not taken bythe Receiversbecause ithadbecome solid(«caked»)and remained in the holds of the vessel. It is the allegation of the plaintiffs thatthereason for thatwasthe longstayoftheshipinthe 10 Anchorage of the Nigerian Portdue to humidity and through no fault oftheplaintiffs.Thedefendants havenotcalledany evidence thatsuch situation aroseasa resultofanyneglectordefault on the part of the plaintiffs. In the Statement of Facts for CHRYSOPIGI (exh. 1
(45)) the 15 following Master' s remarks appear indorsed therein «Damaged cargo not discharged in spite of my protest reserving all owners rights». In the case of ELENA in the Statement signed by the Master (exh. 5) the difference of 35 tons not discharged is explained as 20 follows: « Thirty five tons sweeping cargoes in Hold No.2 remain on board asReceivershave nomore timetodischarge duetothe reason that the vessel shall undock 0700 hours May 17th as per Port Authorities order. Taken Certificate from Receivers 25 duly signed that remaining cargoes or sweeping cargoes will becreditedthevesselandtheyarenotinterestedandnoclaim whatsoever may arise.» Inthe case of SOPHIEpage 4oftheStatement of Facts,Exhibit 1
(44)thereisadiscrepancyintheamountofthecargodischarged. 30 The typewritten part says: «TOTAL QUANTITY DISCHARGED AS PER TALLY: 3,137 TONS» whereas the handwritten words say: «Tally as per NMS Tally 6052 bags Tons 3026 excluding a quantity of Re-bags». In the case of THERAIOS no shortage ;s mentioned on the 35 statement of Facts (Exhibit 1
(46)). The defendants have not called any evidence that the nondischarge of any quantitywas due toanyfault of theplaintiffs and not due to the reasons stated bythe Masters on theStatementsof 502 1 C.L.R. 5 WorldTidev.VasslllkoCement Sawides J. Facts. Furthermore in the Charterparties which the defendant sent to the plaintiffs (Exhibits 1
(31),
(32),
(33),
(34)) they themselves inserted the following clause:«Clause 18.Cargotobe discharged free of any risk and expense to the vessel. (Free out) » The receivers in Nigeria and/or their agents who were the holdersand/or indorsees oftherelevant Billsof Ladingwhowere theonlypersons entitled toclaimagainsttheship forshort landed goods never raised any such claim against the ships either by 10 arresting any of them or by claiming against the vessels' Protection and Indemnity Club nor did they assign to the defendants their right to collect any claim for shortages. It isthe allegation of the defendants that the receivers deducted the alleged shortages from their dealings with the defendants. The 15 defendants have not produced any deed of subrogation from the receivers of theirrightsto them so that they could raise anyclaim by subrogation. In the result I find such claims as untenable in the present proceedings. 20 Inviewof my finding asabove, Iconclude that theplaintiffs are entitled on their claim tothe following amounts: Balanceof freight Balanceof demurrages U.S.dollars » 22,366 115,000 TOTAL U.S.dollars 137,366 U.S.dollars 25,000 17,000 TOTAL U.S.dollars 42,000 Balance due U.S.dollars 95,366 25 Less: Paidbythe defendants/through thePlaintiffs' agents Despatch expenses 30 DEFENDANTS' COUNTERCLAIM Having dealt with plaintiffs' claim, Icome now toconsider the counterclaim. The first item claimed by the defendants isa sum of £6,193 as 35 representing the plaintiffs' share in services rendered and expenses incurred by the defendants for sending representatives |503 Sawides J . WorldTidev.VaselllkoCement
(1988)to Lagos, Nigeria and London on three occasions and also for instituting legal proceedings in the High Court of Justice in England to recover demurrages due. The plaintiffs both by their answer to the Petition and by the evidence adduced denied that they ever authorized the defendants to act on their behalf in this 5 respect. I accept the evidence of the plaintiffs that they never authorized the defendants totakeanyjudicial proceedings for the recovery of the demurrages. In case of any failure of payment by the receiver of demurrages according to the terms of the contract the defendants would be rendered answerable forthepayment of 10 such demurrages totheplaintiffs. Therefore, itwasinthe interests of the defendants themselves to take judicial proceedings for the • recovery of demurrages and not in the interests of the plaintiffs who, in any event, had as security for such demurrages the liabilityfor payment by the defendants. The defendants' claim in 15 thisrespect, therefore, fails. The last claim raised by the defendants isthe alleged breach of contract bythe plaintiffs asa resultof theirfailure to provide and/ or nominate a suitable vessel orvesselsfor thetransportation ofa quantity of 6,675 tons of cement. 20 Having carefully considered all the contents of Onetelexes before me, Ihave come to the conclusion that the plaintiffs were alwaysreadyand willingtoprovideand/or nominateshipsfor the transportation of the quantity of cement mentioned by the defendants and even a larger quantity butitwasasa result ofthe 25 delaying tactics of the defendants in failing to reply in time to the plaintiffs' offers for the supply of ships or by unreasonably rejecting the various nominations made by the plaintiffs. Iaccept the plaintiffs' evidence inthisrespect and on such evidence Ifind that there was no breach of contract by the plaintiffs for the 30 carriage of cement from Cyprusto Nigeria. In the result defendants' counterclaim fails and has to be dismissed. Inview of my findings ai^bove. Iqivejudgment in favour of the plaintiffs against the defendants for the sum of U.S. dollars 35 95,365 with interest at 9% as from today and costs. The counterclaim isdismissed with no orderfor costs. Judgment for plaintiffs for U.S. Dollars 95,366 with costs. Counterclaim dismissed. 504 40

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.