clr/1988/1988_1_783.pdf

(2)— Ambit of. 5 Receiver—Appointment of— The Courts of Justice Law, 1960(Law 14/60) section 32 — *CMlproceedings» — WhetheranAdmiralty action is a civil proceedings — Question determined in the affirmative. Words and phrases: mCivil proceeding» in section 32 of the Courts of JusticeLaw14/60. 10 15 20 Admiralty— Receiver —Appointment of Marshal as, in respect of goods, under section 32 of the Courts of Justice Law, 1960 (14/ 60)—Powers and duties of Marshal— The same as if the goods were a ship or cargo under arrest— Marshal entitled to apply to Courtfordirectionsinaninformalway,e.g. byletter. Upon ex parte application by the plaintiff made in reliance to section 4

(1)of Cap.6 and section 32 of Law 14/60, the Court ordered the sequestration of certain goods and appointed the Marshalassequestrator. The goods were stored in 56 containers. The owners of the containers, who are not parties to the action, demanded the unstuffingofthe cargoand the deliveryofthe containers to them. As a result the Marsha) applied by letter served on all the interveners in theproceedings fordirections.The application ofthe Marshal was opposed onthe ground, inter alia,that the positionof the Marshal'in thiscaseisdifferent from the position,when cargois 783 1 ^ - . ' . · . • ι1 • -i • r • PV* Pipesv.Intertrast

(1988)under arresi (in whicn case he owes a duty to the Court) and. therefore, as he isnota partytotheproceedings,heisnotentitledto apply to the Court, but he should have addressed himself to the plaintiffs, on whose applicationhe was appointedsequestrator. ..Held:

(1)Section M

(2)of Cap. 6 is inapplicable because ifc> application is confined to matters connected with immovable property.Neitherashipnoracargoofashipisimmovableproperty. 5

(2)However,section32 of Law 14/60 providing, interalia,forthe appointment of receiver isapplicable inall cases, provided theorder is made in «civil proceedings». In section 2 of the same law, an 10 admiraltyactionisa civil proceeding.

(3)The Marshal is not bound to formally apply to the Court for directions, thatis,by filing anapplicationby summons,providedthat his letterasking for directions,asinthiscase, isserved on all parties concerned and/orinvolved intheproceedings. ις

(4)The Admiralty Marshal, when he is appointed as a receiver under the provisions of section 32, has the same rights, obligations anddutiesaswhen ashiporcargoisarrested;anditisinhisabsolute discretion to take such steps as he considers it necessary for the preservation and safe custody of theship or cargo, as well as steps 2 0 thatwill minimisethecosts for theirpreservation andsafe custody. Directions accordingly. Costs against interveners, who opposed the application. „- Cases referredto: Re Australian Direct Steam Navigation Company, L.R. XX Equity 325. Application. Application by the Marshal for directionsof the Courtas regards the goods stored in 5 6 containers owned by a Danish firm which 3 0 is not a party to the action. A. Theophilou, for the plaintiffs. St. MacBride, for the interveners-receivers of the cargo. G. Michaelides, for the interveners-owners of thecontainers. Cur. adv. vult. DEMETRIADES J. read the following ruling. After the filing of this action the plaintiffs, by an ex-parte application, applied for- 784 35 1 C.L.R. PVC Pipes v. Intertrust Demetrlades J. .(a)the appointmentof the Marshal of theAdmiralty Courtand/ or any other as sequestrator with powers'to enter upon and take the'goods specified inpara.Βof theprayer tothewrit of summons and'to keep'them in safety doing everything necessary for their 5 preservation until the final determination of the action and/or further orderof the Court;and ·· ' J (b)thatthe costs which were tobe incurred by the sequestrator to be payable by the plaintiffs and be costs in the cause. As itappears from theprayer tothewritof summons,the goods 10 for the sequestration of which the order was granted, related to a cargoof 1944 MetricTons of P.V.C.,Resin that was-stored in 56 containers owned by a Danishfirm not a party to theaction. As aresult ofa letter,datedthe2ndSeptember, 1988, addressed tohimby theadvocates representing theowners of thecontainers, 15 and by which theunstuffing of thecargo loaded intheircontainers and their.return to them:was demanded, the Marshal, by letter dated the 6th September, 1988, applied to the Court for directions. As a number of people has been given leave to intervene as parties, directions were given by thisCourtthatcopy 20 of thesaid letter of the Marshal be served on the parties involved in these proceedings." " ,One of: the interveners, that is Messrs. Formosan Rubber Group Inc.,Ta Win International Co.-L.td. and Epoch Products Corp,, all of Taipeh, Taiwan, opposed the application of the 25 Marshal.Their opposition is based on Rules 204, 206,and 211 of The Cyprus Admiralty. Jurisdiction Order 1893 which are the Rules thatgovern the procedure applicable inAdmiralty,actions. The facts relied upon by the interveners opposing the application of theMarshalareset outintheiropposition andIshall 30 hereunderquote them in full: . , . «(a) On 19.7.88 the plaintiffs themselves applied to the ', Court for,an order appointing inter alia the Marshal of the Admiralty Court asjsequestrator with the powers therein requested, . 35 (b) for an order that the costs incurred by the sequestrator TO BEPAYABLE BY THE PLAINTIFFS. ,(c) Bytheiraffidavit insupport thePlaintiffs (throughVasiliki . Mastihiclou who swore theaffidavit) identified theproperty to 785 DemetrladesJ. PVCPipe»v.Intertraet

(1988)be put inthe custody of the Marshalasthatbeing handled by Messrs. Frangoudi & Stephanou (Ltd)which had come into Cyprus on the EVANGELIA and PETER Μ andtheywere reexporting to TAIWAN. (d)The cargo affected is that covered by the three bills of 5 lading SKI,SK2,andSK3attachedtotheaffidavit of Stavros Karides who confirms onhisoathhaving spoken toMr.Sotos M.Demetriouof Frangoudi&StephanouLtdand which had arrived on the vessels EVANGELIA and PETER Μ above referred to. This cargo was shipped by Toufruit SARL of 10 Beirut to the persons presently opposing the application' of the Marshal. (

1. e)The Court on 19.7.88 appointed the Marshal as sequestrator and granted also thatpart of the order regarding payment of the costs of the sequestrator, andtogivepractical 15 effect theretoorderedan immediatepaymentto the Marshal of £1,000. (
2. f)As can be seen from the bills of lading in question the cargo being carried is respectively 11963 packages of PVC resin in 17 χ 2 0 ' containers and 1544 packages in 22 χ 20 20 containers. (
3. g)Reverting to the request for the appointment of a sequestrator contained in the application of theplaintiffs the goods tobesequestrated arethosespecified inparagraphΒof the prayer to the writ. The writ at paragraph Β refers to the 25 cargo of PVC resin .... in the containers .... described in Appendix A. '' (
4. h)The orderas given covers resin andcontainers. (i)TheMarshalhasnolocusinthismattertoseekdirections/ authority of the Court to vary the orders applied for by the 30 plaintiffs. He must deal with the Plaintiffs and in this connection and/or merely request of the Plaintiffs money each timehe needs ittopreserve thegoods in sequestration. The order of sequestration isnota warrant of arrest. Alternatively 35 (j)The Courtought nottovary theorderbuttodischarge it and the writ as the writ is a nullity and being a nullity there is nothing before the Court of which the Court can take cognizance. The writ is a nullity as it does not comply with 786 1 C.L.R. PVCPipes v. Intertrust Demetrlades J. AdmiraltyHules3,5.9 and 11inthatithasnotbeen issued and isineffective in that the writdoes not name a time ordate for the appearance of the partiesbefore the Court. Furthermore 5 10 15 20 25 30 35 (
5. k)As regards the support given to the application by Scandutch 1-5 Partnership the same arguments/facts as set out above apply, as also, ., ,

(1)the said containers were lawfully delivered to the shippersofthecargoof PVCResinandtheirpossession inthe custody of the shippers/consignees iscovered bythe relative .agreement.TheCourthadnoauthoritytocauseabreachofthat agreement and Scandutch 1-5 Partnership has presented no evidence whatsoever before the Court to justify any stripping of the PVC resin from the containers.» Mr. McBride's argument is that although the Marshal was appointed bythe Court assequestrator of the cargo, thisdoes not make him a party inthe action entitlinghim tocome to the Court and he further submitted that:«Ifhe (theMarshal)hasanyproblems,hegoestothe person on whose behalf he was appointed and that person, the plaintiffs, move the Court to vary or seek directions on the orderthey obtained. Itisnotasifthecargoisunderarrest and, therefore, the MarshalowesadutytotheCourt.Thisispurely a casewhere aplaintiff hasapplied totheCourt for an orderwhy sequestration I do not know, it should have been probably forcustodyorpreservation -theCourthasmade the orderandiftheMarshal,whowasappointedasthe custodian, has any problems, he consults the person by whom he was appointed and that person moves the Court under the appropriate rule of Court, duly supported by the facts upon which hereliestomovethe Court, and then theparties either agreeordisagreeortheydisputetheapplication oftheperson who applied for the appointment of a sequestrator and the Courtdealswiththematteraccordingly.Butwhatlocusstandi the Marshal has to come direct to the Court? I have been looking inthe rulesof Courtand I found nothing.So, Iobject to thisapplication proceeding inthe present form.» The question that poses for decision in view of the arguments put forward byMr.McBrideiswhatisthe effect ofanorderfor the 40 appointment of Marshalof the Courtas sequestrator. 787 DemetrladesJ. PVC Pipesv. Intertraet

(1988)Sequestration is defined insection 4

(2)of the CivilProcedure Law, Cap. 6,on whichthe plaintiffs basetheirapplication,as *4

(2)The order for sequestration referred to means an orderappointingsome person orpersons toenteruponany immovable property, specified in the order, which is in the 5 occupation of the person against whom the order is made, and to collect, take, and get intohis ortheirhands therents andprofits thereof,andalsothegoods andmovable property of such person, and tokeep themfor a timespecified inthe orderoruntilthefurther orderof the Court.» ™ From the wording of this section itis clear, however, thatthe plaintiffscannotrelyon itastheprovisionof thissectionofCap. 6 refers only to matters connected with immovable property and neitheraship norcargo isimmovable property. However, section 32 of theCourtsofJustice Law (Law 14/60), 15 onwhich theplaintiffs alsorely,doesprovide fortheappointment of a receiverwithoutthe limitationthatsuchappointmentmust refer toimmovable property. Section 32 of the Courts of Justice Law (Law 14/60), gives power to the Courts, in the exercise of theirciviljurisdiction, to 20 appointareceiver. Section 32 reads: «32.-

(1)Τηρουμένου οιουδήποτε διαδικαστικού κανονισμού έκαστον δικαστηριον, εν τη ασκήσει της πολιτικής αυτού δικαιοδοσίας, δύναται να εκδίδη απαγορευτικόν διάταγμα (παρεμπίπτον, διηνεκές, ή 25 προοτακτικόν) ήναδιορίζηπαραλήπτην ειςπάσας τας περιπτώσεις ειςαςτο δικαστηριον κρίνειτούτοδίκαιον ή πρόσφορον, καίτοι δεν αξιούνται ή χορηγούνται ομού μετ'αυτούαποζημιώσεις ήάλλη θεραπεία: Νοείται ότι παρεμπίπτοναπαγορευτικόνδιάταγμα 30 δεν θαεκδίδεται εκτόςεάντοδικαστηριον ικανοποιηθή ότι υπάρχει σοβαρόνζήτημαπρος εκδίκασινκατά την επ' ακροατηρίω διαδικασίαν, ότι υπάρχει πιθανότης ότι οενάγωνδικαιούται ειςθεραπείαν,καιότιεκτόςεαν εκδοθή παρεμπίπτον απαγορευτικόν διάταγμα, θα 35 είναι δύσκολον ή αδύνατον να απονεμηθή πλήρης δικαιοσύνηεις μεταγενέοτερον στάδιον, » 788 1 C.L.R. 5 10 P V C Pipes v. lotertrost D e m e t r l a d e sJ . «32.-(l) Subject to any Rules of Court every court, in the exercise of its civil jurisdiction, may, by order, grant an injunction (interlocutory,perpetual or mandatory)orappoint a receiver in all cases in which it appears to the court just or convenient so to do, notwithstanding that no compensation or otherrelief isclaimed or granted together therewith: Provided that an interlocutory injunction shall not be granted unless the court is satisfied that there is a serious question to be tried at the hearing, that there is a probability that the plaintiff is entitled to relief and that unless an interlocutory injunction is granted it shall be difficult or impossible to do completejustice ata later stage. .) As it can be seen from the wording of section 32, there is no 15 restriction as to the type of property for which a Court exercising civiljurisdiction isempowered toappoint a receiver. However, one may ask whether the Admiralty Court exercises «civiljurisdiction». Section2 of Law 14/60 defines thewords «civil proceeding» as:20 «'πολιτική διαδικασία' περιλαμβάνει οιανδήποτε διαδικασίαν άλλην ήποινικήν διαδικασίαν.» («'civil proceeding' includes any proceeding other than criminal proceeding.») Therefore, the Admiralty Court does have the same powers as 25 any other Court not being a Court having jurisdiction to try criminal cases and thustoappoint a receiver. According tothe opinion expressed by Sir G.Jessel M.R.inthe case of Inre AustralianDirectSteam Navigation Company L.R. XX Equity 325 atpp.326 to 327:30 35 «The term 'sequestration' has no particular technical meaning;itsimply meansthedetentionofpropertyby aCourt of Justice for the purpose of answering a demand which is made. Thatis exactly what the arrest of aship is.» I am in full agreement with the above statement of Sir Jessel M.R.because in the case of arrest and sequestration, as wellas in thecase of aCourtappointingareceiver, thepurpose of theCourt order is to preserve the property under the custody of the Court 789. Demetrlades J. PVCPipes v. Intertrust

(1988)until theclaim of the plaintiff isfinallydetermined Inmyview, itis immatenal ifa ship or cargo can be released from arrest after the filing intheRegistry of asecuritybecause theeffect ofthatsecunty isto preserve the property under the custody of the Court in lieu of the ship or the cargo. Therefore, it is my opinion that the 5 Admiralty Marshal, who isan officer of the Supreme Court in its Admiratly Jurisdiction, can, whenever he deems it fit, apply for directions as to how he can proceed to execute the services and duties required of him in furtherance of the best interests of the parties ina litigation Iamfurther oftheviewthattheMarshalisnotbound to formally applyto the Court for directions, that isbyfilingan application by summons provided that his letter asking for directions as in this case, is served on all parties concerned and/or involved in the proceedings 1t . To sum up, I find that the Admiralty Marshal, when he is appointed as a receiver under the provisions of section 32 of the Courts of Justice Law (Law 14/60), has the same rights obligations and dutiesaswhen aship orcargoisarrested and that itisinhisabsolute discretion totake such steps as he considers it 20 necessary for the preservation and safe custody of the ship or cargo, as well as steps that will minimise the costs for their preservation and safe custody Inthepresentcase,the Marshal-receiver-isauthonsedtotake allsteps that are necessary forthe preservation and custody ofthe 25 cargo atthe minimum expense and ifheconsiders itnecessary, to destuff thecargofrom thecontainers inwhichtheyarestuffed (and which are not the subject of these proceedings) inwhich case ne should allow their owners totake possession of them In the result, the opposition of the interveners opposing the 30 application oftheMarshalisdismissedandtheymustpayanycosts resulting from their opposition, whether these are Marshal's expenses and/or for this litigation Order accordingly 790