1 C.L.R- 1988December5 (DEMETR1ADES.J.) GREENOCK NAVIGATION CO.LTD., Plaintiffs, v. TRADAXOCEANTRANSPORTATION S.A., Defendants. (Admiralty Action No. 101/86). 5 Admiralty —Practice — The Admiralty Junsdiction Orders 1893, Rule 89 —Setting down for hearing prior to thehearing of the action questionsoflaw —Principles applicable — Whenserious questions oflaw, that do notinvolve factsfor deciding them,areraisedand are apparent on thepleadings and,if decided in favour of the party raising them, would dispense with further trial the practice is to determine themprior tothehearing —Asin thiscasethesubstratum of the questions raised involves the determination of facts, the application mustbedismissed. 10 The factssufficiently appear from thejudgment ofthe Court. Application dismissedwithcosts. Casesreferredto: 15' Heirs of the late Theodoros Panayi v. TheAdministrators of the Estate of the late Stylianos Georghi Man'drioti,
(1963)2 C.L.R. 167; Michaelidesv.Diakou,
(1968)1C.L.R. 392; Jupiter Electrical(Overseas)Ltd. v. Christide,
(1975)1C.L.R. 144; Paschalis v. Theship «TaniaMaria*
(1977)1C.L.R.53; • 20. OverseasShipping & Forwarding Co. v.Kappa Shipping Co.Ltd.
(1971)1C.L.R.
- - 709 Greenock Navigation v.Tradax (19S8) Application. Application by defendants for an order of the Court directing that the questions of law raised in paragraphs 1, 2 and 3 of their answer besetdown forhearingatadatepriortothehearingofthe action. X.Xenopoulos, for applicants-defendants. 5 L. Papaphilippou, for respondents-plaintiffs. Cur.adv. vult. DEMETRIADES J. read the following ruling. The present proceedings arose as a result of an application made by the defendants, bywhichtheyseekanorderoftheCourtdirectingthat 10 the questions of law raised in paragraphs 1, 2 and 3 of their answer, besetdownforhearingatadatepriortothehearingofthe action.Theapplication isbasedonrule89oftheCyprusAdmiralty Jurisdiction Order
- The application was opposed by the plaintiffs, respondents in 15 these proceedings, on the ground thatthefactsrelied upon by the defendants - and which are apparent on the face of the proceedings - involve issues of facts without proof of which the points of law cannot be resolved and, also,that the summons for directions was filed belatedly and while the action had been set 20 down for hearing. The questions of law for the hearing of which the defendants pray for their hearing prior to the hearing of the action, are the following: «
- Defendants raise the preliminary objection that this 25 Action cannot proceed as there applies the doctrine of Res Judicata in that the same claim was tried and finally adjudicated inAdmiraltyAction 113/85upon the Application of the Plaintiffs dated 4 April,
- This application was dismissed by the Court on the 29th of April 1986, due to the 30 default of the Plaintiff toappear at the Hearing.
- Without prejudice to the above, Defendants further raise the preliminaryobjection thattheplaintiffs are estopped from raising the present action and claim inthattheyaccepted and consented tothe withdrawaloftheAdmiraltyActionNo.113/ 35 85, inwhichtheinterlocutory Orderwasgranted,without any 710 1 C.L.R. 5 10 15 Greenock Navigation v.Trades Demetriades J . reservation as to Plaintiffs' (Defendants inthe said Admiralty Action 113/85) rights whatsoever: Particularly at the Appearance before theCourtonthe28thofSeptember 1985 thePlaintiffs (Defendants inAction 113/85) unreservedly and unconditionally agreed to the withdrawal of the said action with reservation of the Defendants' (Plaintiffs in the said Action 113/85)rightstofileafresh action onthesame subject matter.
- Furthermore and without prejudice and/or in the alternative to the above, Defendants raise the preliminary objection that Plaintiffs' claim discloses no cause of action and the present action isnot legally founded as the action in which the interlocutory order was given and on which they base their claim, has been dismissed and does not exist anymore and therefore no legal rights of any nature of the plaintiffs can be created thereinto.» Written addresses were filed by counsel, inwhich the case and submissions of each party were put forward. It is well established by authority that although it is highly 20 undesirable for cases to be heard piecemeal, when serious questions of law that do not involve facts for deciding them are raised, and which are apparent from the pleadings, and which,if decided in favour of the party raising them, would dispense with anyfurther trial,theyshouldbedecided before thetrialandthatin 25 suchacasethepartyraisingthem mustapplytotheCourtfortheir determination. The above were decided and applied ina number of cases and in this respect see Heirs of the late Theodoros Panayi v. The Administrators -of the Estate of the late Styhanos Georghi 30 Mandrioti,
(1963)2 C.L.R. 167:Michaelides v.Diakou,
(1968)1 C.L.R. 392 at p.395;Jupiter Electrical(Overseas)Ltd. v. Sawas Costa Christide,
(1975)1C.L.R. 144, atp. 152;Paschalisv. The ship <TANIA MARIA»,
(1977)1 C.L.R. 53, at p. 58; Overseas Shipping &ForwardingCo. v.KappaShipping Co.Ltd.,
(1971)1 35 C.L.R. 248, atp. 252;Rules ofthe Supreme Court (White Book) 1960, 0.25,r.3, atp.572. As it appears from the pleadings filed in this action, the defendants-applicants filed in the Admiralty Registry an Action under No. 113/85, against the present Plaintiffs, by which they 711 Demetriades J . Greenock Navigation v. Trades
(1988)claimed damages for alleged freight, demurrages, premia and consequential lossesallegedtohavebeen causedbythebreachof a charter party. Later on, the present defendants obtained, on an ex-parte application, an interlocutory injunction, by which the plaintiffs were restrained from selling, mortgaging, alienating or 5 otherwise dealing with theshipNIC,theproperty ofthe plaintiffs. The plaintiffs then moved the Court forthe discharge ofthe order and on the3rd September, 1985,the Court discharged it.On the 28th September, 1985 the defendants withdrew the said Admiralty Action, which was then dismissed with an order that 10 each party would bear itsown costs. Itistheallegationoftheplaintiffs thatbefore theissueofthesaid order,theywerenegotiatingthesaleoftheshipatthepriceofU.S. Dollars 121 per L.D.T. and thatbecause ofthe ordertheylostthe opportunity to sell their ship. In addition, by their petition they 15 claim additional damages. Inreplytotheallegations madebytheplaintiffs intheirpetition, the defendants allege that Action No. 113/85 was withdrawn without prejudice to theirrightsto file a fresh action on the same subject matter and that the plaintiffs made no reservation 20 whatsoever astotheirrights.They further allege thatthe plaintiffs are estopped from raisingsuch claimastheyhad consented tothe discharge of the order and to the return of the document of guarantee. Having in mind the case of each side as this appears in their 25 pleadings, Iam inclined to agree with counsel for the plaintiffs respondents in these proceedings - that the substratum, upon which the issues of res judicata and estoppel are raised in the Answer, isbased on facts and that the issues cannot be resolved without the Courthavingbefore itallthe facts of the case. 30 Inview of my above finding, Iconsider it unnecessary to deal with the question raised by counsel for the respondents that the application was filed belatedly. Inthe result, the application isdismissed with costs. Application dismissed withcosts. 35 712