clr/1989/1989_1_157.pdf

(1989)Casesrefened to: Co-operative Organization of General Trade (S.O.G.E.K.) v. The Ship «B/ueSea»and others

(1975)1C.L.R.472; Psichoullasv. The Ship Seagull

(1985)1C.L.R.1; Asimenos v. Chrysostomou

(1982)1C.L.R. 45; Gurtnerv.Circuit[1968]1 AllE.R.328; 5 Re VandervellTrusts,Whitev. Vandervel!TrusteesLtd. and Another [1969]3 AllE.R. 496; Vandervel Trustees Ltd. v.Whiteand Others[1970]3AllE.R.

1. Application. Application by plaintiffs for setting aside the order granting 10 leave tothe respondents tointervere inthe proceedings. A. Theophihu, for applicants-plaintiffs. E. Lemonaris with St. Karides, for the respondents-interveCur.adv. vult 15 DEMETRIADES J. read the following ruling. After the present action was filed, which is one in personam, the following corporate bodies, namely Formosan Rubber Group, Ta Win Industrial Co. and Epoch Products Corporation, all of Taiwan, applied exparteand were granted leave to(a)intervene inthe proceedings, (b)applyfor an order tosetasidethefiling, sealingand issueof thewritof summons, and (c)applyforthesettingasideoftheorderofsequestration made on the 19thJuly,
2. Their application was based on the Cyprus Admiralty Jurisdiction Order 1893, rules 29-34, 203-212, 237, the English Order 75 rule 12,the Admiraltypractice and the inherent powers andjurisdiction of the Court. The plaintiffs then filed a motion by which they prayed for the 30 settingaside of the said order on the following grounds(a)that there can be no intervention in the action as itisone in personam, and 158 25 1C.L.R. Jayee P.V.C.Pipesv.Intertrust DemetriadesJ. (b) that the interveners ought to have applied instead to be joined as co-defendants. Theplaintiffs based their motion on Rules30,32,35,203,'204, 206-209, 211,212 and 237 of the CyprusAdmiralty Jurisdiction 5 Order 1893, the Admiralty Practice and the inherent jurisdiction and powers ofthe Court. The interveners opposed the motion on the ground, as this appearsinpara.8oftheaffidavit filedinsupportofthe opposition, that10 15 20 25 30 «there is no jurisdiction under the. Rules (the Cyprus Admiralty Jurisdiction Order 1893) to support the plaintiffs' application todischargetheordergrantingtothe respondents leavetointervereand thatthesaidapplication isfrivolous and vexatiousand an abuse of the Court's process». Bytheiraction, theplaintiffs claim«A. 2,680,000:-USA Dollars or its equivalent in Cyprus -pounds beingthe value of 1944MetricTons of P.V.C.Resin, Type Bovil M,property of the plaintiffs, which was loaded at Thessaloniki on or about 23.12.88 on board Defendant's Vessel M/V SANTA MARIA I by virtue of an agreement between the Defendants and the Plaintiffs {evidenced in the B/LNo. 1-8),foritscarriagebytheDefendantsanddeliveryto the Plaintiffs at India and was never so delivered but was instead converted by the Defendants and/or misdelivered and/or taken away, and part of itwas carried to Limassol, in breach oftheabove agreement ofcarriage thusdepriving the Plaintiffs of their property. B. An Order of the honourable Court ordering the Defendants and/or their servants and/or their agents and/or assignees to deliver to the Plaintiffs the cargo of PVC Resin, type BOVILM,nowstaffed in bags into the containers at the Port of Limassol asprescribed inAppendixA.» On the day the writ was filed in the Registry the plaintiffs obtained, after theyhadapplied totheCourtexparte,anorderby 35 which the Marshal of the Court was appointed as «sequestrator» with powers to enter upon and take the goods which were described inthe Billsof Ladingreferred tointhe writand to keep theminsafetydoingeverythingnecessaryfortheirpreservasion till the final determination of the action and/or further order of the 40 Court. 159 DemetriadesJ. JayeeP.V.C. Pipesv. Intertrust

(1989)Intheaffidavit filed insupport of theirabove application,it was deposed: «On or about beginning of December, 1987, the Plaintiffs and/or their agents agreed with the Defendants at Thessaloniki, Greece, and loaded on board Defendants' Vessel SANTA MARIA I, 1944 M.Tons of PVC Resin, Type BOVIL M, to be carried and delivered to them at Bombay, India. 5 Such agreement is evidenced intheattachedphotocopies marked Exhibit Abundle of Billsof Lading. 10 The above goods of the Plaintiffs were never delivered to them in Indiaor elsewhere and the Plaintiffs tried tocontact the Defendantsand/ortofind thewhereabouts of their above ship without result. The Plaintiffs appointedtheInternational MaritimeBureau, 15 an English organization linked with Marine Insurers and Underwriters, to carry out an investigation for them, who advised them in writing on 18.4.88 that their cargo was deliberately discharged on or about the 8.2.88 by the Defendants and/ortheirMasterof theshipSANTA MARIAI at 20 the unofficial portof RasSelaata nearTripoli,inLebanon. On or about 26.6.88 part of the Plaintiffs cargo converted and/ortakenawayasabove bytheDefendantswas carriedby them in Cyprus (Limassol)staffed inthecontainersas appear in the attached in photocopy marked Exhibit Β cargo 25 declarations delivered to the customs by the carrier Vessels EVANGELIA andPETERM, delivered toMessrs Frangoudi& Stephanou tobe re-exported to Taiwan». Inparagraphs 3,4,5 and6of theaffidavit filedby theinterveners insupportof theiroppositiontothismotion theyclaim- 30 «The Respondents/Interveners claim to be the rightful owners of thecargo which isdescribed inAppendix «A» ofthe writ of summonsinvirtueoftheBillsofLadingcopies whereof are exhibited inthisAffidavit marked SKI,SK2 andSK

1. From enquires which I have made it came to my 35 knowledge that the above cargo was landed at Limassol ex thevessels PETERΜ and EVANGELIA andwas placedinthe custody of Messrs Francoudi& Stephanou Ltd. of Limassol 160 1 •1 C.L.R. JayeeP.V.C. Pipesv. Intertrust DemetriadesJ. for transhipment to Taiwan and there to be delivered to the Respondents/Interveners against production of the Bills of Lading copies whereof are exhibited hereto marked SKI, SK2 ; andSK
2. 5 10 15 20 In this connection Ihave on the 27th July 1988, together with Mr. Emilios Lemonaris, visited the offices of Messrs Francoudi &Stephanou Ltd. at Limassol and spoke to their operationsManager,Mr.SotosM.Demetriou,concerning the abovecargo.Mr.SotosM.Demetriouconfirmed tousthatthe instructions ofhisfirm aretotranshipthe cargotoTaiwan and theretobedeliveredagainstproduction of the Billsof Lading copies whereof are attached hereto marked SKI, SK2 and SK3.Mr.SotosM.Demetriou further confirmed tousthatthe voyage from Limassol toTaiwan would be covered by house Billsof Lading. In virtue of the premises aforesaid it is certain that .the interests of the Respondents/Interveners are affected by the institution of the above proceedings and by the order of • sequestration made therein andtheyhave on 23rdJuly 1988 applied to the Court and obtained leave of the Court to intervt-iit;mthe proceedings». Counsel for the plaintiffs argued that the right of intervention ' existsonly inan actionin rem where the resisunder arrest; when somebody comes forward showinginterestintheresand because 25 ofthishe isallowed tointervene inorder toprotect hisinterest. Insupport ofhisargument counsel for the plaintiffs referred me to Halsbury's Lawsof England 4thEd.Vol. 1para 395,the Rules of the Supreme Court of England, (R.S.C.) 1958 Order 16 rule 2 (at p. 324), The British Shipping Laws, Admiralty Practice 1964 30 Vol. 1at p. 137, paragraphs 311 and 312, and the cases of Cooperative OrganizationofGeneralTrade(S.O.G.E.K) v.The Ship «B/ueSea» and Others,

(1975)1C.L.R. 472 at pp. 479-480 and Psichoulas v. The Ship Seagull,

(1985)1 C.L.R. 1 at p. 3. He further argued that rules.29 - 34*of the Order of 1893 are not 35 applicable in the present case. Inhisargument before mecounsel forthe interveners relied on Rules 29 - 32 of the Order and submitted that although the interveners are not interested inthe contestbetween the plaintiffs and the defendants, they areinterested inthe destiny ofthe cargo 40 as they claim ownership of it and that if they had applied to be 161 DemetriadesJ. JayeeP.V.C. Pipesv. Intertrust

(1989)joined as parties, they would become involved in the litigation between the partiestothe action. Counsel further submitted that rule 30 was wide enough to permit his clients to join the proceedings in the action as intervenersand notasco-defendants. 5 The relevant rules onwhichtheinterveners reliedfor obtaining leave to intervene,thatisrules29 -32,read as follows: «

1. Any number of persons having interests of the same nature arising out of the same matter may be joined in the same action whether asPlaintiffs oras Defendants. 10 30.TheCourtorJudge mayatanystageofthe proceedings and either with or without an application for that purpose being made by any party or person and upon such terms as shall seem just, order that the name or names ofanyparty or parties be struck out or that the names of any person or 15 persons whoareinterested intheactionorwhooughttohave been joined either as Plaintiffs or Defendants or whose presence before theCourt isnecessary inordertoenable the Court effectually and completely to adjucate upon and settle allquestions involved inthe action be added. 20
2. For the purposes of the last preceding rule an underwriter orinsurer shallbe deemed tobe a person interested in the action.
3. The Court or Judge may order upon what terms any person shall be joined as a party, and what notices and 25 documents, ifany,shallbegiventoandservedupon him, and may give such further directions in the matter as shall seem fit». As it appears from Halsbury's Laws of England 4th Ed. Vol. 1 para 3 9 5 «The special rules governing the effect of appearance to defend and the right to intervene in actions in rem do not apply to actions in personam. In these respects, Admiralty actions inpersonam resemble anyother High Courtaction». and reference isthen made to Order 75 rule 17which came into 35 force in
4. 162 30 1C.L.R. JayeeP.V.C. Pipesv.Intertrust DemetriadesJ. In a number of judgments of this Court, however, ithas been decidedthattheRulesoftheSupreme Courtwhichareapplicable inCyprus asa resultofthe provisions of Rule237 ofthe Orderof 1893 are those which were in force in England prior to the year 5
5. In this respect, amongst other cases, see Asimenos v. Chrysostomou,

(1982)1C.L.R.145.As,therefore, Order 75rule 17isinapplicableinCyprus,wemustlooktoseewhattherelevant provisioninforceinEnglandpriorto1960was.ThiswasOrder 12 rule 24 which -and Iquote from the White Book of 1955 -then 10 read:«InanAdmiraltyaction inrem anyperson notnamed inthe writ may intervene and appear as heretofore, on filing an affidavit showingthatheisinterestedintheresunderarrest,or inthe fund inthe Registry.» 15 Inthepresent casethe issuethatposesfordecision iswhethera person claiming ownership in a res - the cargo - which is the subject matter of the proceedings and whoisnot apartyto them hastherighttointerveneinanactioninpersonamandwhetherthe provisions of Order 12 rule 24 of the R.S.C. are applicable in 20 Cyprus. Ihave earlier quoted the rulesrelevanttowhothe partiesinan Admiraltyactioncanbe.Inmymind,anotherrulerelevanttothese proceedings isRule35 ontheprovisionsofwhichcounselforthe plaintiffs relied.Thisrulereads:25 «35.The parties named in the writ of summons and every person interested inthepropertysoughttobe affected by the action whodesirestodisputethePlaintiff's claimshallappear before theCourtorJudgeeitherpersonallyorbyadvocateat the time named inthatbehalf inthewritof summons». 30 In interpreting a statutory enactment, one should look to the meaning of the enactment itself and should not read in it provisions that are nottobefound there.Looking atthe wording of our Rules, relevant to these proceedings, Ihave come to the .conclusion thatno differentiation canbemadeinCyprusbetween 35 actions inrem and actionsinpersonam and thatthese rules have been enacted inordertogivetherighttoaperson,whose interest intheresisdirectlyaffected bytheaction,tointervene inorder to protecthisinterests. 163 DemetriadesJ. JayeeP.V.C.Pipesv.Intertrust

(1989)Useful guidance astothereasonswhyaperson maybe granted leaveto intervene inadmiraltyactionsistobefound inthenoteof Order 75 rule 17 (which Order, as Ihave earlier said, does not apply in Cyprus) under the heading «Object of rule»in which itis stated that itsobject is«Toenable apersonwhohasasubstantial interestintheres to intervene, ifthisinterest may be injuriously affected by the action againsttheres,andtoprotecthisinterests.Therightsof an intervenerarelimitedtotheprotection ofhisinterestinthe res, and he had no locus standi to raise issues which are not 10 materialto this purpose». Lord Denning M.R., in delivering hisjudgment in the case of Gurtner v. Circuit, [1968] 1All E.R. 328, on the issue when the Court may order that a person, whose presence before the Court is necessary to ensure that all matters in dispute in the cause or 15 matter may be effectually and completely determined and adjudicated upon, be added as a party, said the following at p. 332:«Itseems to me that, when two parties are in dispute in an action atlawandthedetermination ofthatdisputewilldirectly 20 affect a third person inhislegalrightsorinhispocket, in that hewillbe bound tofootthebill,then the court initsdiscretion mayallowhimtobeaddedasapartyonsuchtermsasitthinks fit : It enables all matters in dispute 'to be effectually and 25 completely determined and adjudicated upon' between all those directly concerned inthe outcome». The above opinion expressed by Lord Denning M.R. was approvedbytheAppealCourtinthecaseofRe VandervellTrusts, White v. Vandervell Trustees,Ltd. and another, [1969]3 AllE.R. 30 496. Although the decisionoftheCourtofAppeal inthiscasewas reversed by the House of Lords (see Vandervell TrusteesLtd. v. Whiteand Others, [1970]3AllE.R. 16)itappearsthatthetestthat a Courthastoapplyinallowingthejoinderofpartiesiswhether,in the absence of a party, the Court can ensure effectual and 35 complete determination andadjudication ofthemattersindispute before it. Havinginmindtheallegationsonwhichthethree Corporations from Taiwan based theircasefor obtaining leavetointervene and in the light of the English authorities Ihave cited, and, also, the 40 164 1C.L.R. JayeeP.V.C.Pipesv.Intertrust DemetriadesJ. meaning of the provisions of our Rules, I have come to the conclusion that the presence of thesaid Corporations before the Court is necessary in order that the Court may effectually and completely determine, adjudicate upon and settle all questions 5 involvedintheaction asregardsthe ownership ofthe goods. In the result, Ifind that the motion of the plaintiffs fails and is dismissed withcosts. Coststobeassessedbythe Registrar. Application dismissedwithcosts. 165