(1989)1989March14 (DEMETR1ADES,J.). JAYEEPVCPIPESPVTLTD.&OTHERS, Plaintiffs, v. INTERTRUSTSHIPPING CORPORATION, Defendants. (AdmiraltyAction No. 96/88). Appeal —Stay ofexecution pending appeal —(In thiscasepending an application toreview aruling) —Principlesapplicable. In the circumstances of this case and in view of the principles governingstayofexecutionpendingappeal,theCourtdismissedthe application forstayofexecution ofa rulingofthe Courtinrespectof 5 whichanapplication forreview was filed. Applicationdismissed. Casesreferred to: Sheepswerf Bodewes - Gruno v. TheShip ALGAZERA
(1980)1 C.L.R.595. 10 Application. Application by interveners for directions for the postponingof the effect of the ruling of the 28th December, 1988 so that the statusquo be maintained pending theresultofan application filed bythem for review. 15 St. McBride, for applicants - interveners - receivers of the cargo. A. Theophihu, for respondents - plaintiffs. G.Michaelides, for interveners -owners ofthe containers. Cur.adv. vult. 20 166 IC.L.R. JayeeP.V.C.Pipesv.Intertrust DEMETRIADESJ. readthefollowingjudgment. Onthedaythe writ of summons in this action was filed in the Registry, the plaintiffs obtained,after theyhadappliedtotheCourtex-parte,an order by which the Marshal of the Court was appointed as 5 «sequestrator» with powers to enter upon and take the cargo whichwasdescribed inthebillsofladingreferred tointhewritand to keep them in safety doing everything necessary for their preservationtillthefinaldeterminationoftheactionand/or further orderof the Court. 10 In September 1988, the Marshal, in his capacity as «sequestrator», applied to the Court for directions regarding the cargo,thesubjectofthisaction.Hisapplicationwasthen opposed bytheFormosan Rubber Group,TaWinIndustrialCo.and Epoch ProductsCorporation, allofTaiwan,(hereinafter tobe referred to 15 as«thefirstinterveners»).ThedirectionstheMarshalwasaskingfor were, inter alia, the unstuffing of the cargo from the containers which are the property of persons that are not a party to these proceedings, who, however, applied and were, by consent of all parties appearing in the proceedings, allowed to be joined as 20 interveners (hereinafter to be referred to as «the second interveners»). Whentheapplication oftheMarshal fordirectionscameupfor hearing, the first interveners submitted that the Marshal had no righttoapplyfordirectionsashewasnotapartytotheaction;that 25 theplaintiffs had tomovetheCourttovaryand/orseek directions ontheordertheyhadobtainedandthat,inanyevent,1theMarshal hadtomakeaformal application totheCourtfordirections,thatis byfiling anapplication bysummons. The relevant part ofthe RulingIgave ontheissueraisedbythe 30 first interveners reads: «According tothe opinion expressed bySirG. Jessel M.R. in the case of In re Australian Direct Steam Navigation Company L.R., XXEquity325atpp.326 to327:35 'The term 'sequestration' has no particular technical meaning. Itsimplymeans the detention of property bya Court of Justice for the purpose of answering a demand whichismade.Thatisexactlywhatthearrestofashipis.' ' IaminfullagreementwiththeabovestatementofSirJessel M.R.becauseinthecaseofarrestandsequestration,aswellas 167 DemetriadesJ. JayeeP.V.C. Pipesv.Intertnist
(1989)inthecaseofaCourtappointingareceiver,thepurposeofthe Court order isto preserve the property under the custodyof the Court until the claim of the plaintiff isfinally determined. In myview, itisimmaterial ifa ship or cargo can be released from arrestafter the filing inthe Registryofasecuritybecause 5 the effect of thatsecurityistopreservetheproperty underthe custodyoftheCourtinlieuoftheshiporthecargo.Therefore, itismyopinionthattheAdmiraltyMarshal,whoisanofficerof the Supreme Court in its Admiralty Jurisdiction, can, whenever hedeemsitfit,applyfordirectionsastohowhecan 10 proceed to execute theservicesand dutiesrequired of himin furtherance of thebest interests of thepartiesina litigation. I am further of the view that the Marshal is not bound to formally apply to the Court for directions, that isby filing an application by summons, provided that his letter asking for 15 directions, as in this case, isserved on all parties concerned and/or involved inthe proceedings. To sum up, Ifind that the Admiralty Marshal, when he is appointed as a receiver under the provisions ofsection 32of the Courts of Justice Law (Law 14/60), has the same rights, 20 obligations and dutiesaswhen ashiporcargoisarrested and that it is in his absolute discretion to take such steps as he considersitnecessary forthepreservation andsafe custodyof the ship or cargo, as wellassteps that willminimise the costs for their preservation and safe custody. 25 Inthe present case,theMarshal-receiver -isauthorised to take all steps that are necessary for the preservation and custody of the cargo at the minimum expense and if he considersitnecessary,todestuff thecargofromthe containers in which they are stuffed (and which are not the subject of 30 theseproceedings)inwhichcaseheshouldallowtheirowners totake possession of them. Intheresult,theopposition oftheintervenersopposing the application of the Marshalisdismissed andtheymustpay any costs resulting from their opposition, whether these are 35 Marshal'sexpenses and/or for thislitigation». As a result of my Ruling, the first interveners applied for directionsforthepostponingoftheeffect ofmyRulingofthe28th 168 IC.L.R. Jayee P.V.C.Pipesv. Intertrust DemetriadesJ. December, 1988, so that the status quo was maintained pending theresultofanapplicationthathadbeenfiledbythemforreview. After hearing counsel for the first interveners, I made the following order: 5 «Stayoftheeffect oftheRulinggrantedtillthe7thJanuary, 1989. In the meantime, copy of the application, the affidavit and all attached documents to be delivered to counsel appearing for all interested sides in these proceedings, includingtheMarshalof thisCourt». 10 The plaintiffs and the second interveners opposed the application of thefirst interveners. Havingheardthearguments, itisclearthatthetwoparties who oppose the application ofthe first interveners donotobject tothe grant of a stay provided, they say, the first interveners put up 15 sufficient guarantees for therunning costs ofkeeping the cargoin containers. In addition, counsel appearing for the owners of the containers, that is the second interveners, submitted that for the Court to make an order for a stay of execution, there must be an enforceable orderand thatsuch order does notexistbecause the 20 Court, in its Ruling on the application of the Marshal, made no order but it merely gave the guidelines as to the duties and the rightsthe Mashal has inorderto keep the cargo safe. Insupport ofhisargument thathisclientshouldnotbe ordered toput up se.cutity,Mr, McBride submitted that onlywhen thereis 25 final judgment and the party aggrieved wishes to appeal, in the normalexerciseofaJudge'sdiscretion,thepartywhoisappealing and who wants a stay of execution, isusually ordered to put up security.Although,hesaid,hedidnotdisputethattherewerealot of authorities to that effect, in the present case there is no final 30 Judgmentbuta rulingwhichcondemned theapplicantstoput up security inthefirstinstanceortodepositthe costsofthestorageot the containers, without having been heard. Further, he said the claimforthedetentionofthecontainershasnotbeen established. As regards the submission made by counsel for the second 35 interveners,thatisthatthereisnoenforceable order,Iamincluned totheviewthatfrom whatIsaidinthelastbutone paragraphofmy ruling, it is clear that anybody attempting to interfere with the Marshal-ifheconsiders itnecessaryto destuff thecargofrom the containers -willbethesubject ofacontemptofCourt. Therefore, 40 thedirectionsIgave,Iconsiderthemtobe«anenforceable order». 169 DemetriadesJ. JayeeP.V.C.Pipesv. Intertrust
(1989)Inowcometotheissueofwhetheranorderforstayoughttobe made pendingan appeal(inthiscasependinganapplication for «Review»), In the case of ScheepswerfBodewes-Gruno v.The ship «ALGAZERA»,
(1980)1 C.L.R. 595, at p. 598, Isaid the following regardingthisissue: 5 «Theprinciplesgoverning astay of execution pendingan appeal can be summarized as follows (see Polini v. Gray, Sturlav.Freccia,[1879]12Ch.D.438;Wilsonv.Church(No. 2)12Ch.D.454;OrionPropertyTrustandothersv.DuCane CourtLtd.andothers,[1962]3AllE.R.466;ErinfordProper- 10 ties Ltd.v.Cheshire CountryCouncil[1974]2AllE.R. 448; London and Overseas (Sugar) Co.andanotherv. tempest BayShippingCo.Ltd.andothers,
(1978)1C.L.R.367; Tafco (Foreign Trade Organization forChemicalsandFood-stuffs) of Syria(No.2) v. TheShip «Lambros L.»and her cargo, \§
(1977)1 C.L.R.159): (a)TheCourt,ingrantingorrefusingastay,hasadiscretion, dependingontheparticularcircumstancesofeachcase. (b)TheCourtshouldnotdepriveasuccessful litigantofthe fruitsofhislitigationpendinganappeal. 20 (c)Thatwhenthereisanappealabouttobeprosecuted,the litigation istobe consideredasnotatanend,andthatbeing so, if there is reasonable ground of appeal, and if by not makingthe ordertostaythe execution oftheorder,itwould maketheappealnugatory,nottodeprivetheappellantofthe 25 resultsoftheappeal,andthatifsuchisthecase,itisthedutyof theCourtnottointerfere andsuspendtherightsoftheparty whohasestablishedhisrightsforastayofexecution». Going through the record in the file of this action and the arguments Ihave heard, Ifind that the containers in which the 30 cargoisstuffed are not thesubject ofthe proceedings;thatthey belong topersons that havenothingtodowiththeplaintiffs, the defendantsorthefirstintervenersandthatthereisnoallegationby thefirstintervenersthattheownersofthecontainersareunderan obligation tothem tokeep thecontainersstuffed withthecargo 35 allegedlybelongingtothemtillthefinaldeterminationoflitigation thatmighthavearisen.Inanyevent,thereisnoallegationbythe first interveners that if the cargo allegedly belonging to them is unstuffed, damagewillbecausedtoit. 170 1C.L.R. JayeeP.V.C.Pipesv.Intertrust DemetriadesJ. Inthe light of the above, Iam not prepared to grant thestay appliedforbythefirstinterveners. Thefirstintervenerstopaythecostsresultingfromthekeeping of the cargointhe containersuntiltoday,plusthecostsofthese 5 proceedingsbothtotheplaintiffsandthesecondinterveners.The costsoftheseproceedingstobeassessedbytheRegistrar. Applicationdismissed. Orderforcostsasabove. 171