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(1989)1989August 11 (DEMETRIADES, J ) EDDY BREIDIAND ANOTHER, Plaintiffs, v. THESHIP «GLORIANA*, NOW LYING INTHE PORT OFLIMASSOL AND OTHERS, Defendants. (Admiralty Action No. 13/80). Admiralty — Jurisdiction — Saleofgoods —Action fordamages fornon delivery by purchaser against seller — Outside ambit of admiralty Jurisdiction. Admiralty — Negligence — Bill ofLading — Issueof,in thename of the shipper and not in the name of the owner of the goods — In the circumstances themasterof theship did not act negligently. 5 Admiralty — Arrest of ship — Damage caused thereby — Arrest unjustified—Damages recovered on a counterclaim filed in the action, in which theshiphad been arrested. The facts of this case sufficiently appear in the judgment of the 10 Court. Action dismissedwith costs.Judgment on the Counterclaim of the first defendants for 3,000 U.S. Dollars, but with no order asto costs. 15 Admiraltyaction. Admiralty action for damages for lossfor non-delivery of cargo and/or for breach of contract of affreightment and/or for negligenceand/or forbreachofcontractofcarriageand/or breach of contract for the sale of goods loaded on defendant ship on or 20 about 14.1.
  1. 458 l C.L.R. Breidiv.Ship-Gloriaηa* D.Den.ju ades, for the plaintiffs.^ C.Hadjiloannou, for defendants No.
  2. L. Demetriades with St.Nathanatel,for defendants No.
  3. Cur. adv. vult. 5 DEMETRIADESJ. read thefollowing judgment. The plaintiffs, whoarebusiness-men inLebanon,hadagreed toenterintoajoint venture with a certain Mr. Robert Anid for the purchase of a considerable number of T.V. sets from the third defendants. As it appears from the evidence, the two plaintiffs were to 10 finance the deal and Mr. Anid, P.W. 2, was to handle the negotiations for the purchase of the T.V. sets well as their transportation to Beirut and theirsale inLebanon. The plaintiffs claim thatthe third defendants failed to deliver to them theT.V. sets thatthey hadsold tothem.Itistobe notedthat 15 the obligation of the third defendants, if they are to be held in breach of thealleged agreement of sale, was todeliver the goods to the plaintiffs «free German Border» (see the original and all amended Letters of Creditwhich are exhibits inthisaction).Their transportation from the German Border to Beirut was the 20 responsibility andatthe costs of the plaintiffs. The plaintiffs further claim that the first defendants, although they had entered intoa contractof affreightment for the carriage from Ravena to Beirut of the T.V. sets they had bought from the third defendants, they were negligent in accepting on board the 25 cargo which although itbelonged to them,the Billof Lading was issued inthe nameof thethird defendants as shippers. By their writ of summons the plaintiffs claim against all defendants damages for «lossfor non-delivery of cargo and/or for breach of contractof affreightment and/or for negligence and/or 30 for breach of contractof carriage and/orfor breach of contractfor the sale of goods nowloaded ondefendant ship and/or otherwise on or about 14.1.80». Itis,I think,pertinentheretomentionthattheactionagainst the second defendants, thatisthe cargo, was dismissed after a Ruling 35 of the Full Bench of this Court (see in this respect The Ship *GLORlANA» and Another v. Eddy Breidi & Another,
(1982)1 C.L.R. 409. 459 DemetriadesJ. Breidiv.Ship«Gloriana»
(1989)By their prayer in the Petition filed in the action, the plaintiffs claim: «A.U.S.Dollars 1,244,116.71or the equivalent amountin Cyprus Currency as per para 32(A-F) of the Petition for damages for non-delivery of cargoand/or breach of contract of Affreightment and/or carriage of goods by Sea and/or for Negligence and/or otherwise. 5 B. U.S. Dollars 27,607.36 or the equivalent amount in Cyprus Currency as per paras 14 and 28 of the Petition (Above) and/or for total failure of consideration and/or for 10 breach of contract of carriage and/or otherwise». Inpara32ofthe Petition theplaintiffs enumeratetheparticulars of the damage they allege theysuffered. Thisparagraph reads:«A.Lossof20percentasexpectedprofitsand/orreasonablyprofitsfrom theresaleof thenon-delivered cargo described byBillofLading No.20dated22.12.79and intheInvoicedated 14.12.79expresslymade known totheShipowneror toDefendant No. 1 thatdeliveryshouldhavetaken placebefore 23.12.79in viewoftheNewYearHolidays. *^ 20 25 U.S.Dollars588,760.00 B.InsurancesinrespectofabovedescribedcargoDM 30,501.93 + 64,009.
  1. TotalDM94,511.64equivalentin U.S.Dollars57,402.
  2. C.Expensesandtravellingduringnegotiations,telexes, phonecalls,legalfeesand auditorsexpenses. U.S.Dollars 108,094.15 460 30 35 1C.L.R. Breidiv. Ship«Gloriana» DemetriadesJ. D.Bankingexpenses, opening LetterofCreditamendment twiceofLetterofCreditand interests. . U.S. Dollars 45,074.53 5 10 15 20 25 30 E.Expenses duelegal fees, tripsandinterests, Banking commission. U.S.Dollars 76,687.11 F.DirectInvestments,Show­ roomKeymoney, ShowroomRent,Furnitures, Wa­ rehouse Keymoney and Warehouse Rent. U.S. Dollars368,098.15 TOTALINU.S.Dollars U.S.Dollars1,244,116.71» Paragraphs 14 and 28 of the Petition give particulars of the claim of theplaintiffs underprayer Βand they read as follows: «
  3. The Plaintiffs as a result of their agreement with Defendant No. 1 and/or with the Shipowner Mr. IbrahimT. Chouery to carry for reward aforesaid 42 containers from Ravena toBeirut have prepaid totheShip 'GLORIANA' and/ or the Shipowner by way of freights the sum of L.L. 90,000 equaling to U.S.Dollars (rate3.26.) = 27607.
  5. Itisthe allegation of thePlaintiffs thatthe DefendantNo. 1 is not entitled to the freights prepaid {para. 14 above) as the purpose and object for which this amount was paid failed and/or not performed by the Defendant No. 1 and/or the defendant"No.1failed toobey the instructions of the plaintiffs though she has agreed to carry aforesaid cargo from Ravena toBeirutinbreachof theaforesaid agreement of carriage and/ or the consideration for which the amountof freights prepaid failed andthisamountshould be returnedtoPlaintiffs for want of consideration and/or otherwise». Having in mind the allegations made in the petition and, 35 particularly, theprayer claimed init, Ifind thatnoclaimismade by the plaintiffs against thethirddefendants for breachby thelatterof thealleged agreement toselltheT.V. sets tothem. 461 DemetriadesJ. B l . e j d i v ,S h i p «Gloriana»
(1989)In any event, having gone through the evidence adduced before me, both oral and documentary, Ifind that no cause of action in the AdmiraltyJuristiction of thisCourt arises against the third defendants, as the cause of action claimed by the plaintiffs againstthem isnotoneenvisaged bytheAdministration ofJustice 5 Act 1956 which gives jurisdiction to the Court to try Admiralty Actions either in rem or inpersonam or both of them.As another Court mayhavejurisdictiontotrytheclaimoftheplaintiffs against the third defendants, I do not propose to deal further with the evidence adduced and which relates tothis issue. 10 Having reached the above conclusion, the issue that poses for me to decide is the liability of the first defendants for the alleged non-delivery of theT.V.setstothe plaintiffs. Indecidingthatissue,Ihavetosumupinbrieftheevidencethat led tothese proceedings. 15 The plaintiffs allege that through their partner Mr. Anid, they had entered into an agreement tobuy a number of T.V.sets from the third defendants at a certain price on terms and conditions which were to be incorporated in an irrevocable and confirmed Letter of Credit. 20 A Letter of Credit was originally issued but its terms, as it appears from the exhibitsbefore me, were repeatedly changed at therequest of thethird defendants, towhichchangesthe plaintiffs and/orMr.Anidconsented. However, thelastrequest bythe third defendants fortheamendment ofthetermsoftheLetterofCredit, 25 which was to the effect that certain T.V. sets were to be shipped without a PAL/SECAM Decoder, was never answered by the plaintiffs. As a result, the third defendants never received, and this isan admitted fact by the plaintiffs, the value of the T.V. sets that the 30 third defendants had agreed tosell to the plaintiffs. Theplaintiffs allege that due tothe negligence of theMasterof the first defendant, the ship, the Master issued a Bill of Lading naming the third defendants asthe shippers despite the fact that the T.V. sets stuffed in the containers were the property of the 35 plaintiffs.· Mr.Anid in giving evidence alleged that the owner of the ship was wellaware of the fact that462 IC.L.R. Breidi v.Ship«Gloriana» DemetriadesJ. (a)hewastoioadonhisshipcargothatwasstuffed incontainers that were to be transported from the Border of Germany to Ravena Portbythe Panalpina Company, (b)these containers werestuffed withT.V.setsbelonging tothe 5 plaintiffs, and (c)he wastodeliver them tohim atBeirut port. However, I cansee nonegligence committed onthepart ofthe Master of the ship in that the way bill issued by Panalpina, the company that transported the containers from Nuremberg to 10 Ravena, named as shippers the third defendants. In thiswaybill, which isexhibitNo.30 before me,itisstated that thegoods were stowed in 42 containers, 20 ft. long each, whilst in the written acknowledgment at the oral agreement reached between Mr. Anid and Mr. Choueri, the owner of the ship, 45 containers are 15 mentioned (see exhibitNo.2). Having this in mind and the telex dated the 22nd December, 1979, exhibit No. 11, sent byMr.Choueri totheplaintiffs andMr. Anid, it is clear that the Master of the ship, in issuing the Bill of Ladingandnaminginitthethirddefendants asthe«shippers»,was 20 not acting negligently. Exhibit No. 11 to which there was no response bythe plaintiffs and/or Mr.Anid, reads as follows:WEKLAW21182LE 355 1732 21/1216.32 25 WEKLAW21182LE 550878RAMARI GOOD MORNING FROM RA-MARRAVENNA 30 ATTENTION: Mr Eddy Breidi, Mr. Roger Dagher, Mr. Robert Anid. , , Surprised your telex of 20.12.79 contents of which I reject completely, as I have no' agreement with your goodselves whatsoever and the onlyagreement Ihave waswithMr.Anid. 35 MyVessel isberthed inRavenna for loadingyouralleged cargo asfor myagreement with Mr.RobertAnidtoload45CTS.on fios termsbutapparently there isno cargowhatsoever available. 463 DemetriadesJ. g ^ v ^ « ^ ^ ^ {I989) Available in Ravenna in the name of Mr. Anid non even under your name. Since Ihave completed my obligation in hinging my vessel in ballast for loading the cargo agreed upon with Mr. Anid and my vesselisawaitingontheberthinRavennaportreadyinallrespects 5 for loading, I invite Mr. Anid at once to present his cargo for shipment asperagreement, otherwise Ihold him fully responsible forfreight, dead freight, demurrageand allotherexpenses arising tonon shipment of the 45cts. Withall reserves. JQ IbrahimTaniosChoueri -Owner M/VGloriana. 550878 RAMARI WEKLAW21182LE In the light of my above findings, the action against the first defendants fails. Defendants No. 1,aswellas the thirddefendants, counterclaim against the plaintiffs as follows: Defendants No.1counterclaim thesumofU.S.Dollars 100,000 for loss and damage suffered by them as a result of the unwarranted and unjustified, asthey allege,arrest of the ship. 20 Defendants Nc.3 counterclaim as follows: «COUNTERCLAIM 8 9. As a result of the unjustified arrest the Defendants incurred expenses opening a Security Bond in the sum of 25 £200,000.-ordered bytheCourton 16.1.1980fortherelease of Defendants 1 and 2 and have since been incurring expenses. PARTICULARS Commission of the National Bankof Greece on thesumof 30 £200,000.-from 18.1.1980 todate £3,800.10.The Defendants willcontinue toincurfurther expenses by reason of the setting up of theaforesaid guarantee. 11.AndtheDefendants counterclaimagainstthe plaintiffs:- 464 15 1C.L.R. Breidi v.Ship«Gloriana» DemetriadesJ. (A) The sum .of £3,800.- as hereinabove set out in paragraph 9. (B)General Damages ashereinabove set out in paragraph 10». 5 The claimsofthetwodefendants ariseasaresultofthe arrestof the ship and the cargo loaded on it whilst lying in the port of Limassol. The first defendants called Mr.Stavros Pissarides, the Manager of the firm Orphanides and Murat, the agents of the defendant 10 ship.Thiswitness said that the ship was under arrest for two days and that from his experience a ship of the capacity of the defendant ship could earn between U.S. Dollars 1,500 to 2,000 gross per day. Thiswitness,however, wasnot ina position tosay what the dailycost of running the ship would be. 15 Having considered the matter, I am prepared to allow this defendant thesumofU.S.Dollars3,000 asdamages suffered asa result of thearrest ofthe ship. Icome now tothecounter claim of thethird defendants. These defendants claim that as a result of the unjustified arrest 20 (apparently of the cargo), they have incurred expenses for «opening asecuritybond inthesumof£200,000.-ordered bythe Court on 16.1.80 for the release of defendants 1and 2 and have since been incurringexpenses». Ifeel that atpresent there isno material before me on which to 25 decide theamount ofdamagestowhichthe thirddefendants may be entitled. I, therefore, reserve this issue until these defendants takeproper stepstoprove theirclaim. Havingfound thattheplaintiffs' action againstthefirstand third defendants fails, Ifeel thatImustproceed andassessthe damages 30 to which they might have been entitled had they been successful asregardstheir claim against the first defendants. I have earlier referred to the particulars of damage that the plaintiffs alleged that they have suffered. Particulars B. to F. are eithertoo remote orthey wereexpenses necessary forbringingin 35 the profit. Forinstance,itemsC , E.and F. (except the warehouse rent)are unconnected withtheclaimoftheplaintiffs againsteither of thedefendants. Itisobviousfrom the evidence ofMr.Anid that these were expenses made for the Dlaintiffs eventually securing 465 DemetriadesJ. Breidiv.Ship«Gloriana»
(1989)the exclusive agency of the products of the third defendants in Lebanon. Mr.Anid ingiving evidence stated that the grossprofit that they expected to make from the sale of the T.V. sets would be about 40% of the purchase price and that the net, after deduction of expenses and costs,would be 20%. Thisevidence standsuncontradicted and.therefore, had Igiven judgment in favour of the plaintiffs, I would have allowed the plaintiffs the equivalent of this percentage of the sale price in Dollars. 5 10 Forallthe above reasons,the action against both defendants is dismissed with costs. There will be judgment in favour of defendants No. 1 for $3,000.00 but there willbe no order as tocosts. Action against both 15 defendants dismissed. Judgment in favour of defendants 1for $3,000.00. No orderasto costs. 466

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