(1989)1989April25 (SAW1DES,J ) . UNIVERSAL EXPORTANDIMPORTS.A., Plaintiffs, v. 1.M/V«MAVROTISSA»FLYINGTHE FLAGOFCYRPUS, THEIROWNERSAND/OR THEIRSHIPOWNERS, 2.MODESTMARITIMECO.LTD.. 3.ARGO-PACIFICS.A.,ASCHARTERERS, Defendants. (AdmiraltyAction No. 27/88). Admiralty —Practice—Renewal of writ of summons — Application filedafterexpirationofthetwelvemonths 'period asfromthefilingof the writ— The CyprusAdmiraltyJurisdictionOrder, Rule237 —In virtue therefore, this case isgoverned by the old EnglishRules in force in 1960^.0.8, rule 1 and 0.64, rule 7—Action in rem— - 5 Practicetorenew writ, ifshiphas not calledataCyprus port. This is an action in rem against defendants 1 and an action in personam against defendants 3. The affidavits in support of the application state that defendant 1 ship has not yet called at any Cyprusportand isexpected within thenextsixmonthswhenservice 10 will notbe possible unless thewritofsummonsisrenewed, and that concerning defendants 3 efforts were made for tracing their whereabouts whom the applicantsoriginallythoughttobeinCyprus to effect service on them and it was only recently that applicants came toknow thattheyare inFrance. *•** The application was filed after the expiration of the writ. In the circumstances the Courtgranted the application. Application granted. Casesreferred to: NigerianProduce v.Sonora Shipping
(1979)1C.L.R.395; 234 20 1C.L.R. Universal Export v.M/V Mavrotissa Churair&Sonsv. SnatirenShipping
(1980)1C.L.R.183; «Helenflotf)»,NewLawJournalofthe 24thJanuary, 1980, atp. 91; Birkettv.James[1977]3W.L.R.38; Bemy [1979]1Q.B.
- 5 Application. Application by the plaintiffs for the renewal of the writ of summons. A. Poetis, for applicants. SAWIDES J. gave the following judgment. By this ex-parte 10 applicationapplicants-plaintiffs applyfortherenewalofthewritof summons against defendants 1and
- This is a mixed action in rem against defendant 1 ship and in personam against defendants 2 and
- Plaintiff's claim isfor U.S. $700,000.- as damages for breach of contract for the transportof 15 goods by defendant 1 ship from Constanza to Puerto Quetzal, Guatemala. The writof summons wasissued on the 15th March, 1988and wasnotserved on defendants 1and 3withinthe period of twelve months provided by the rules of Court applicable in Admiralty proceedings. 20 The present application wasfiled onthe 30th March, 1989, i.e. 15days after the expiration of thewritof summons. Previously to this application counsel for applicants filed an application for extension of time to effect service dated the 3rd March, 1989, before the expiration ofthewritofsummonswhichwasheard and 25 determined on24thMarch,1989,after theexpirationofthewritof summons. Such extension was refused on the ground that once the writ had expired no extension could be granted for service without an application for renewal of the writof summons. The application is based on r.237 of the Cyprus Admiralty 30 Jurisdiction Order, 1893 and 0.8, r.l and 0.64, r.7 of the English Rules(theold Rules oftheSupreme Court). 0.237 of the Rules of the Supreme Court of Cyprus in its Admiralty Jurisdiction on which the application isbased reads as follows: 35 «Inallcasesnotprovided bythese Rules,thepracticeofthe Admiralty DivisionoftheHighCourtofJustice ofEngland,so 235 SavvidesJ, Universal Export v. Mf\ Mavrotissa
(1989)far as the same shall appear to be applicable, shall be followed». In view of the fact that no provision is made in the Admiralty Rules as to the period that the writ of summons remains in force the English Rules and Practice become applicable by virtue of 5 such Order. The rules applicable in this respect are the rules in force prior to the 15th August, 1960 in view of the provisions of s.19 and s.29
(2)(a) of the Courts of Justice Law, 1960 (LawNo. 14/60).See, inthisrespect, NigerianProduce v.Sonora Shipping
(1979)1 C.L.R. 395. In that case in dealing with the question of 10 renewal of the writ of summons in an action in rem, after its expiration, Ihad the opportunity of expanding on the principles which may guide the Court inexercising itsdiscretion in granting such application. Therefore, Ifind itunnecessary to repeat in the present decision such principles which are adopted for the 15 purposes of the present application. Thequestion was further dealt withbyme in Churair&Sons v. Snatiren Shipping
(1980)1 C.L.R. 183, in which reference was madetothe Bemy [1979] 1 Q.B.80,which dealtwith the renewal of a writ in an action in rem. In the Bemy case, Brandon, J. in 20 granting an order for the renewal of the writ of summons in an action inrem had thistoobserve at p.103: «In my opinion, when the ground for renewal is, broadly, that ithas not been possible toeffect service, a plaintiff must, in order to show good and sufficient cause for renewal, 25 establish one orotherofthreemattersasfollows:
(1)that none of the ships proceeded against in respect of the same claim, whether inoneaction ormorethanoneaction,havebeen, or will be, present at a place within the jurisdiction during the currency of the writ; alternatively
(2)that, if any of the ships 30 have been, orwillbe, presentataplacewithinthejurisdiction during the currency of the writ, the length or other circumstances of her visittoorstayatsuch placewere not, or will not be, such as to afford reasonable opportunity for effecting service on her and arresting her; alternatively
(3)35 that,ifanyoftheshipshavebeen,orwillbe,presentataplace within the jurisdiction during the currency of the writ, the value of such ship was not or will not be, great enough to provide adequate security for the claim,whereasthevalueof allorsome orone oftheothershipsproceededagainstwould 40 besufficient, oranyhow more nearly sufficient, to doso». 236 1 C.L.R. Universal Exportv.M/VMavrotissa SavvidesJ. The principles laid down therein were followed in the «Helen Roth», New Law Journal of the 24th January, 1980, at p.91,in which an application to set aside the renewal of the writ of summons and service of it and the unconditional release of the 5 arrested shipwas refused. Thefactsrelieduponinsupportoftheapplicationasemanating from the various affidavits before me are that in respect of defendant 1ship, suchshiphasnotyet called atany Cyprus port andisexpected withinthenextsixmonthswhenservicewillnotbe 10 possible unlessthe writof summons isrenewed. Concerning defendant 3 it is the contention of the applicants contained inthe affidavits and in the statements made before me that efforts were made for tracing the whereabouts of such defendants whom they originally thought to be in Cyprus but in 15 fact theydidnothavearegistered office inCyprustoeffect service onthem and itwasonlyrecentlythattheycametoknowthatthey • are in France. The application was based both on the English R.S.C. 0.8, r.l and R.S.C. 0.64, r.7 applicable before 1960, because once the 20 application is made after the expiration of the twelve months period during which the writ isvalid, recourse could be made to 0.64, r.7 which empowers the Court to enlarge the time applied for renewal of the writ of summons. As already mentioned extensivereference oftheprincipleswhichmayguidetheCourtin 25 the exercise of itsdiscretion appear inthe NigerianProduce case (supra) in which a review of the relevant English Case Law is made. It has been the practice of this Court in actions in rem where service cannot be effected once a ship has not called at any port 30 withinthejurisdictionoftheCourtsothatservicecouldbe effected asprovided by0.16 of theRulesoftheSupreme Court of Cyprus initsAdmiraltyJurisdiction, fortheCourttoexerciseitsdiscretion in renewing the writ of summons bearing in mind the practice concerningserviceinanactioninrem.Reference maybemadein 35 this respect to the Bemy (supra) and the British Shipping Laws, Vol. 1,Admiralty Practice, p.28. TherecentCaseLawinEnglandandourCaseLawfollowingin that respect the English Case Law show a more liberal climatein which renewal of a writ may be more easy to obtain. One, 237 SavvidesJ. Universal Export v.M/VMavrotissa
(1989)however,should notignorewhatwassaidintheHouseofLordsin Birkettv.James [1977]3W.L.R.38atp.50thatwherealimitation period is expounded to the full the plaintiff must then proceed expeditiously. Onthefactsbefore me Ifind thatinthepresentcasegoodcause 5 hasbeen shown forgrantingthe application.This,however, does not in any way preclude defendants 1 and 3, after service is effected, toapplytothe Courttohavetheorderrenewingthewrit andservice thereof set aside on good cause shown. In the result I grant th^ application and I make an Order 10 renewing the writ of summons for a further period of six months from today. Application granted. 238