clr/1989/1989_1_335.pdf

(1989)1 C.LR.314 335 Mourtzinos v.Ship Galaxias

(1989)Application. Application by plaintiffs for the stay of the enforcement of the Order dated 21st June, 1989 by which the amount that was required to be lodged for bailing out the defendant ship was reduced from one million eight hundred thousand U.S.dollars to fivehundred thousand dollars. 5 L.Papaphilippou with N. Cleanthous, for the applicant Cur.adv. vult. A.LOIZOU,P.read thefollowingjudgment oftheCourt. Upon the delivery of the judgment of the learned trialJudge, by which inter alia the amount fixed by him on the 12th April 1989 for 10 bailing out the defendant ship, which had been arrested on the application of the plaintiff, was reduced from one million eighthundred thousand U.S. dollars to five hundred thousand U.S. dollarsor itsequivalent inCypruscurrency, and consequently the order of the 12th April 1989 was amended accordingly, counsel 15 fortheappellant applied before himorally,underOrder203ofthe Cyprus Admiralty Jurisdiction Order 1893, to fix once more at one-million eight-hundred thousand dollars the amount for bailing out the ship and this by means of an interim order as he intended to file an application for review under Order 165. His 20 main argument was that the amount of two-hundred thousand U.S.dollars,fixed asdamages,referred onlytothespecific breach of Clause 9 of the contract and not to the general damages connected with the use of the vessel, with the chartering of the vessel and the breach of theagreement asawhole. 25 The learned trial Judge refused to grant such order and consequently an exparte application wasmade bythe appellants forthestayoftheenforcement oftheOrder,dated21stJune 1989, with which as already stated, the amount that was required to be lodged for bailing out the defendant ship was reduced from one- 30 million eight-hundred thousand U.S. dollars to five hundred thousand dollars. Asthe learned trialJudge had dealt inthe first instancewiththis matter, when he was moved orally by counsel as above set out, thisapplication was taken bythe FullBench. 336 35 IC.L.R. Mourtzinos v.ShipGalaxias A. LotzouP. The action in which the warrant of arrest, and a number of procedural steps were taken, is one in which the following remedies were claimed inthewritof summons: 5 10 15 20 «(a)damages forbreach ofa wntten agreement dated 15th September, 1988,,in connection with the use, exploitation and chartering of theship 'GALAXIAS'; (b) 256,260 US Dollars, or its equivalent in Cyprus currency, and C£15,700 ,sums ofmoney paid tothe owners and/or their representative inconnection with the aboveship and/or on thebasisof the above agreement; (c) 149,608.90 US Dollars, or its equivalent in Cyprus currency, for costs incurred and payments made by the plaintiff ascharterer and/or fortheaccount andatthe request of the owner of the ship 'GALAXIAS' and/or in connection with the supply of goods and materials and/or in connection with repairs, constructions and equipment of the ship 'GALAXIAS'; (d) damages for fraud and/or misrepresentation and/or deceit committed by and on behalf of the owner of the ship 'GALAXIAS'inconnection with theagreement for chartering and/or use of the ship in question; (e)any further and/or other remedies; (f)interestattherateof9% perannum from thefilingofthe present action as damages orotherwise; and 25 (s)costs.» Underterm 9ofthe agreement the compensation tobepaid by the owning Company, in case of breach to the other party was fixed attwo-hundred thousand U.S.dollars. Itreadsas follows: 30 «PartyAshallsignondemand anynecessarydocumentsfor theformation ofthenewcompanyand/orshalldulyexecutea bill of sale and/or shall execute any further document that shouldbereasonablyrequiredtoenabletheshiptobe legally transferred tothe new company and/or enable theshipto be registered withtheGreek and/oranyotherflag. IfPartyAfails 337 A. l.oizou P. Mourtzinosv. ShipGataxias

(1989)to comply with any of the above demands, Party Βwill have the right tocancel theagreement andthereuponanyamount of the price paid shall be returned to it plus an amount of 200,000 USDollarsasagreeddamages.» The principles governing the question of ordering stay of 5 execution may be summed up as follows: A successful litigant is not to be deprived of the fruit of his success, except for valid reasons andthepossibility thatthejudgment underappeal may be reversed or varied (see in this respect ErinfordProperties Ltd., v. Cheshire [1972] 2All E.R.448. CharalambosCharalambousv.C. 10 Nicolaidesand A. Neophytou and Co.,

(1985)1 C.L.R. 737 atp. 740. We have examined the facts and circumstances of thecase and inparticulartheallegation ofthelossof use oftheship,which isthe item under which the amount of one-million eight-hundred 15 thousand dollars is claimed and which is simply set out as such in paragraph 10(d)of theaffidavit of Mr. Takoushis,filed onbehalf of theapplicant,andwe have cometotheconclusion thatwe arenot atthisstage satisfied thatwe shouldstay thepartof theorderwhich relates tothe reduction of theamount. 20 Theapplication istherefore dismissed with noorderastocosts. Applicationdismissed. No order as to costs. 338