(1988)1988September 9 (PIKIS,J.) HAISANVAHLAWAN, Plaintiff, v. THEMOTORYACHT«SAUD»NOWLYINGATLARNACAMARINA, ^ Defendant. (AdmiraltyAction No. 29/88) Admiralty—Arrest of ship —The Admiralty Jurisdiction Order, 1893, Rule 50 — The application may be made atoratany timeafter the issueofthewrit—Itmay bemade afterjudgment inanactioninrem. Admiralty—Action in rem—Execution of—No order for sale of defendant ship can be made, unlessshe isunder arrest. Admiralty—Arrest of ship — Whether possible to arrestaship already under arrestinanother action. Theapplicantisthejudgmentcreditorinanadmiraltyactioninrem against the defendant vessel. Hetriedto obtain an order forthe sale of the shipin execution ofthe judgment. When he realised thatthat 10 wasnotpossible,unlesstheshipwasunderarrest*heappliedforher arrest. Itmustbe notedthattheshipinquestion isunderarrestinanother pending admiralty action. Held,
(1)Inthe lightofRule50the application forthearrestofthe 15 vessel cannot be faulted as untimely. Failure to have the vessel arrestedbefore judgment,doesnotgiverisetoanywaiveronthepart of thejudgment-creditor tohavetheproperty arrested thereafter for the satisfaction ofthejudgment debt.
(2)Ashipmaybe arresteda secondtimeifitisnotanticipatedthat 2 0 judgment in the first proceeding will be entered sooner than ' See BritishShippmg Laws, Vol,1
(1964)510 5 1 C.L.R. t 5 Vahlawan v. M/V-Saud» judgmentinthesecondaction.Theresdoesnotmergeinajudgment in rem inawayprecluding asubsequent arrest.
(3)Therighttohaveashiparrestedforpurposesofexecutionofan in rem judgment, isonly forfeited ifthe vessel isbailed out after an initialarrest. - . , Orderforarrestofdefendant ship. Casesreferredto: , BaringShipping Company v. Ship EUROTRADEH
(1978)1 C.L.R. 93; 10 CommercialBank v.Ship *PEGASOS III»
(1978)1C.L.R. 1; , The*DESPlNAG.K.»fl982]2U.L.R.525; . ' ThePointBreeze [1928]P.135; TheAlletta [1974] 1Ll.L.R.401. Application. 15 • Application by plaintiff for the arrest of the defendant yacht. A. Georghadjis, for the plaintiff. ' . .Cur. adv. vulf. PIKIS-J. read the following judgment. The applicant is the iudgment-creditor in an admiralty action in rem for an amount of 20 U.S. $31,450.-- or its equivalent in Cyprus Pounds. The action was undefended. Judgment was given on the evidence of the plaintiff establishing his claim to arrears of wages and other benefits deriving from the contract of his employment aboard the defendant vessel.Thejudgment remained unsatisfied. On 29.8.88 2 5 an application was made for the sale of the vessel inthe process of execution of the judgment. When the application came up for hearing, counsel realised that his application could not be proceeded with and no sale of the ship could be ordered unless she was first arrested; and as it was not, he filed a second application 30 for arrest of the vessel, the 'subject matter of the present proceedings. The res cannot be sold unless.under arrest, as explained in the Admiralty Practice.* Itappears to be settled that a ship ce-inot be seized and be sold for the satisfaction of a judgment debt unless the vessel is under *(BritishShipping Laws, Vol.J
(1964)). 511 PUrfsJ. Vahlawanv.M/V«Sand»
(1988)arrest.Thisisanincident,itseemstome,oftheimplicationsofan action in rem and the nexusbetween thejudgment and the res itself.Williams&Bruce* explainthatifanadmiraltyactioninrem isdefended by the owner and the plaintiff voluntarily proceeds without resorting to the arrest of the vessel,execution may levy 5 againsttheownerinthesamewayasjudgmentinpersonam can beexecuted. Even inthatsituationthere mayberecoursetothe res for satisfaction of the judgment debt if the debt remains unsatisfied after exhausting the remedies available in actionsin personam. 10 Itemergesthat omission orfailure toresorttothearrestofthe vessel for security in an in rem action, does not disentitle the pursuerfromhavingthevesselarrestedforpurposesofmakingthe resavailable for satisfaction of the judgment debt. Thiswasthe course followed by A. Loizou, J., as he then was, in Baring 15 ShippingCompany v. Ship *EUROTRADER»**. The Admiralty Rules do not in terms limit the time at which a ship may be arrested. R. 50 of the Cyprus Admiralty Rules provides that applicationforthearrestoftheshipmaybemadeatthetimeofthe issueofthewritofsummonsor« atanytimeafter theissueof 20 thewritofsummons » .Therefore,theapplicationforthearrest of the vessel cannot be faulted as untimely. Failure to have the vesselarrestedbefore judgment, doesnotgiverisetoanywaiver onthepartofthejudgment-creditortohavethepropertyarrested thereafter forthesatisfaction ofthejudgmentdebt.However,the 25 amenityofthejudgment-creditortohavethepropertyarrestedin aninremadmiraltyactionafterjudgment, isnottheonlyissueto be resolved. We are also required to determine whether it is possibletohavetheshiparrestedwhenalreadyunderarrestatthe instanceofanothersuer. 30 Thevesselthatapplicantseekstohavearrestedisalreadyunder arrestattheinstanceofthejudgment-creditorinAdmiraltyAction No. 215/87. The present application was necessitated, as explainedintheaffidavit insupportoftheapplication,bythefact thatthe owner of the vessel has made application inthe above 35 caseforstayofexecutionofthejudgmentofthe aforementioned action. Seemingly that application precipitated the present (JurisdictionandPracticeof theEnglish CourtsinAdmiraltyActionsandAppeals, 3rd ed., p.310. •*
(1978)1C.L.R.93. 512 1 C.L.R. Vahlawan v. M/V«Saud» Pikls J. proceedings. In Commercial Bank v. Ship *Pegasos III»* A. Loizou, J., subscribed to the view that a ship may be arrested a second time if it is not anticipated that judgment in the first proceeding will be entered sooner than judgment in the second 5 action.Otherwise,Ord.65oftheAdmiraltyRulesprovidingforthe entry of a caveat affords a compendious method of protection of the interests of the second pursuer. Christopher Hill, in his work Arrestof Ships inEngland and Wales,takesasimilarviewmostly founded on the decision of Sheen, J.,in 77ie*DESPINA G.K.»**. 10 The above decision supports the proposition, as the learned author explains, that tbe resdoes notmerge inajudgment inrem ina wayprecluding asubsequent arrest. Therighttohaveashiparrestedforpurposesofexecutionofan inremjudgment, isonlyforfeited ifthevesselisbailedoutafteran 15 initialarrest.Abodyofcaselawestablishesthatbailtakesthe place of the res, isa substitute for it,and plaintiff cannot thereafter look tothevesseleitherforsecurityorforthesatisfaction ofjudgment***. Inviewoftheabovetheredonotappeartobelegalobstaclesto entertainingthe exparteapplication oftheapplicant.Anorder for 20 the arrest of the vessel isconsequently made. Notice of the order must be served upon the vessel and every other party known to have an interestinthefate ofthe vessel. The case will come up before me on Friday, 16.9.88,at9 a.m: Theparty towhom noticeshallbe givenshallbe free tomove the 25 Court on that day to have the order discharged, amended or modified. Further, directions will be given on that date whether security should be given for Marshal'sexpenses for thearrest and keeping of the vessel. Order accordingly. •
(1988)1C.L.R.
- **(1982]2U.L.R.
- **'(ThePointBreeze{1928}P.135;andTheAltetta(1974}1 U.L.R.p. 40). 513