clr/1989/1989_1_473.pdf

(2)and3

(3)ofthe 1952Brussels Convention RelatingtotheArrestofSeagoing Ships —Itmeans de10 tention byjudicalprocess. This is an application,for the discharge of the arrest of the defendant ship, who had been earlier arrested upon an ex parte application bythe plaintiffs. 15 20 The relevant to the application facts are briefly as follows:- The plaintiff 2shipcollidedwiththedefendantshipattheportofTripoliin Libya. The defendant ship was arrested, but not as a result of a judicial process. She was later bailed out on the strength of a guarantee. ThearrestinLibyaandthesubsequestbailingoutofthe defendant shipwere the facts relied upon in support of the application for the dischargeofthearrest.Thedefendant shipinvokedinthisrespectthe provisionsofthe 1952BrusselsConventionRelatingtotheArestof Seagoing Ships. 473

(1989)Montegrillov.Ro/RoIva Held, dismissing theapplication:

(1)The provisions of the said Convention apply inCyprusinvirtueofsection 19oftheCourtsof JusticeLaw,1960(Law14/60).

(2)«Arrest» in the sense of the Convention (Article 1

(2)) is a detentionbyjudicialprocess.InthiscasetherewasnoarrestinLibya in that sense, but Article3

(3)of the Convention isstil!applicable, because itapplies notonlyincasesof«arrest»inthesaidsense,but also,ofbailorothersecuritygiven. 5

(3)However, Libya isnotaContracting State.Article3

(3)ofthe Convention appliesonlywhenthefirstarrestorbailhadbeengiven 10 «inanyone ofthejurisdictionsoftheContractingStates »It isnottherefore,applicabletothefactsofthiscase.

(4)Norcanthedefendant relyon«TheGolaa», 17Asp.Mar. Law Cas.35asthefactsofthatcaseareclearlydistinguishable fromthe factsofthiscase. , , Applicationdismissedwithcosts. 15 Casesreferredto: TheGolaa, 17Asp.Mar.LawCas. 35. Application. Application by Counsel for the defendant ship for

1. a)setting aside and/or discharging order for the arrest of the ship «IVA»
2. b)cancelling and returning to the owners of the defendant ship the bank guarantee filed to secure her arrest and c)setting aside the 20 writ of summons and application by plaintiffs foran order striking out para (c)of the above application. St McBride, for the applicant-defendant. C. Erotocritou withK.Stamatiou (Mrs.), for the respondentsplaintiffs. Cur.adv. vult. SAWIDES J. read the following judgment. By an ex parte application in this action, filed by the plaintiffs, a warrant was issued on 13th February, 1987,forthearrestofthedefendant ship until further order of the Court assecurity for the plaintiffs' claim 30 for damages sustained by plaintiff 2 ship «AUMA»byreason ofa collision in Libya with the defendant ship «IVA» allegedly as a result of the negligence of thedefendant ship. The warrant of arrest was subject to the condition that the defendant ship should be released upon the filing of a security 35 474 25 1C.L.R. Montegrillov.Ro/RoIva SawidesJ. bond by or on behalf of the ship in the sum of £30,000. Abank guarantee for the release of the defendant ship was filed and the defendant ship wasreleased from arrest. Subsequently, counsel forthe defendant ship moved the Court 5 by the present application to: (a)Set aside and/or discharge the order of the Court made on 13.2.87 authorizing the arrest of the defendant ship«IVA». (
3. b)Cancel and return to the owners of the defendant ship the bank guarantee filed tosecure her release. 10 (c)Set aside the writofsummons issued inthisaction. Theplaintiffs opposed theapplication andatthesametimethey filed an application for an order of the Court that the relief under paragraph (c)hereinabove be struck out. Astheapplication oftheplaintiffs wastouchinganissuealready 15 before theCourtasaresultofthe opposition oftheplaintiffs tothe application ofthedefendant, suchapplication hasbeen dealtwith togetherwith theapplication ofthe defendant. With the exception of the collision between the two vessels, which occurred whilst they were at the port of Tripoli in the 20 Republicof LibyainApril, 1985,which isadmitted byboth sides, there are two conflicting versions particularly concerning the alleged by counsel for the defendant arrest of the defendant ship asaresultofstepstakenonbehalf oftheownersofplaintiff 2ship. According to the version of the Defendant as emanating from 25 the affidavit filed on herbehalf and the evidence which wasgiven by Mr. Dujmovic Marijan, who at all times material to the action was the local representative at Tripoli of Losinjska Plovidha, a Maritime Shipping State owned Company of Yugoslavia which owned the defendant ship,and also from the various documents 30 which have been produced in this case, as a result of a collision which occured on 17.4.85, in which both «ALIMA» and «IVA» ships were involved, the defendant ship was arrested and remained under arresttillaguaranteewasgivenonitsbehalfforits release,inthe following circumstances: 35 Both the plaintiff and defendant ships were being handled in Libya by a State organ known as «Germa Shipping and Stevedoring Company» which had been established by two previous companies called «Sabrata Shipping and Stevedoring» 475 SavvidesJ. Montegrttlov.Ro/RoIva

(1989)and«LebdaShippingandStevedoring».After thecollisionatthe requestofplaintiff 2ship«ALIMA»,GermaShippingCompanyby their claims department sent to Germa Shipping Co. Ro/Ro Department a teiex askingthem toprevent herfrom sailingand arresther.Inthemeantimeatelexwassentonthesamedaybythe 5 solicitors of the plaintiffs to the State Agency operating the defendant ship,thecontentsofwhichreadasfollows: «WearetheSolicitorsofM/VALIMA.Saidvessel suffered damagesintheabove-mentionedcollision,causedbyavessel which, we havebeen told, you areoperating. Please, letus 10 known who are the underwriters of the said vessel and whether same are open toissue a letterof guarantee inthe usualterms.Furthermore,pleasebekindenoughtoascertain damages sustained byvessel 'ALIMA'which isatpresentin Benghaziharbour.Yoururgentreplywouldbeappreciated». 15 The contents of the said telex were communicated by the ownersofthedefendant shiptotheirreprtentativeatTripoliwho attended upon Germa ShippingCompanyclaimsdepartmentto securetherelease of«IVA»andonbehalf oftheownersputupa writtenundertakingtosecureitsrelease. 20 The contents of such undertaking, which isdated 19thApril, 1985, and is certified by Germa Shipping Company, read as follows: «After having received request by solicitorsVINCENZINI OF M/VALIMAand having been authorized by myHEAD 25 OFFICE,Ihereby certify andguaranteetocoverthedamage forwhichourliabilitywouldbeascertained,sustainedbyM/V ALIMA in collision with our vessel 'IVA' on 17.04.1985 morning,whilebothvesselsanchoredintheinneranchorage oftheportofTripoli. 3° Thisguaranteeisissuedinordertorelease thevessel from further retentioninTripoli». Asa result ofsuch guarantee, thedefendant shipwasreleased from arrest. The following indorsement appears on the statement of facts 35 produced asexhibit2 inwhich the movementsofthe defendant shiparestatedwithparticularsofarrival,dischargeandloading: «Thevesselhasbeenarrestedthe 19thApril,1985,dueto 476 1C.L.R. Montegrillov. Ro/RoIva SavvidesJ. the collision with M/V ALIMA and allowed to sail the same day at 17.00hoursafter receivinga Guaranteeletterfrom the representative of Messrs.Losinjska Plovidha». This indorsement is testified by the Claims Department of the 5 Germa Shipping Company. The plaintiffs by an affidavit sworn on their behalf and the evidence givenby Mr.Antonino Sacca, an Attorney at Law from Livorno, Italy, a member of the Legal Firm Studio Legale Vincenzini, denied that they ever took steps for the arrest of the 10 defendant shipatTripoliorthatanysecuritywasgiventothem for the release of the defendant ship from arrest, and went further to state thatthe only instructions they had given for the arrest ofthe shipwerewhentheshipcalledatLimassolportandnever before. The contention of learned counsel for the applicant-defendant * 15 wasthatoncethedefendant shipwasarrested atTripoliand/orits release was secured by putting up bail and/or guarantee, the plaintiffs areprecluded from arresting the defendant ship again in Limassol.Insupportofhispropositionhesoughttorelyonvarious Conventionsand, inparticular, on the 1952 BrusselsConvention 20 Relating to the Arrest of Seagoing Ships to which the United Kingdom, Italyand Yugoslavia were amongst the signatories. He also sought to rely on the principles emanating from the English decision in TheGolaa,aMaritime case of 1926.He concluded by submitting that in the light of the aforesaid authorities, it isclear 25 that if two actions are commenced against the same ship for the same cause ofaction and theship isarrested inthefirstaction and bailisputuptosecureitsrelease,thesecond arrestandthe second bail cannot stand and will be discharged, making particular reference toArticle3

(3)ofthe1952BrusselsConvention Relating 30 tothe ArrestofSeagoing Shipsand the case of 77ieGolaa*. Counsel for the respondents-plaintiffs contended that the defendant ship had never been arrested within the meaning of Article 1

(2)of the Brussels Convention which defines «arrest» as detention by judicial process. No evidence, counsel submitted, 35 hasbeen adduced that the alleged arrest wasan arrestbyjudicial processbut,onthecontrary, accordingtotheevidencebefore the Court,nojudicialproceedingshadeverbeen institutedinTripoli. Finally, counsel contended thattheprovisionsof Article3

(3)of the said Convention do notapply in the present case as Libya is 40 notapartytothe convention whereasunderthesaidparagraphof •17Asp.Mar. LawCos.35. 477 SavvidesJ. MontegriUov. Ro/RoIva

(1989)the Convention, for the provision to apply, a ship has to be arrested inanyone of thejunsdictions BothcounselmadeastatementtotheCourtthatLibya isnota party to the 1952 Brussels Convention Relating to theArrest of Seagoing Ships.Infact,thisisclearfromthelistgivenintheBntish 5 Shipping Laws, 2nd Edition, Vol 8 which deals with the International Conventions of Merchant Shipping and, in particular,atρ 1438onwards,whichdealswiththe1952Brussels Convention RelatingtotheArrest ofSeagoing Ships Thequestionswhich pose for considerationinthiscase are 10 (a)Whether the defendant ship was arrested inTnpoli and/or secured itsrelease bygivingupaguarantee (b) Whether such arrest and/or guarantee precludes the plaintiffs from arrestingthedefendantshipinLimassol (c) TowhatextenttheBrusselsConventionisapplicable inthe 15 circumstancesof thepresentcase Article 3

(3)of thesaid Conventionreadsasfollows «Ashipshall notbearrested,norshallbailorothersecunty be given more than once in any one or more of the junsdictions of any of theContractingStatesinrespectof the 20 same maritimeclaimbythesame claimant and,ifashiphas been arrestedinanyoneofsuchjunsdictions,orbailorother secunty has been given insuch junsdiction either to release theshiportoavoid athreatenedarrest,anysubsequent arrest of theshiporof anyshipinthesameownershipbythesame 25 claimantfor thesame manhmeclaimshall be set aside,and the ship released by theCourtorotherappropnatejudicial authority of that State, unless the claimant can satisfy the Court or other appropnatejudicial authontythatthebail or othersecuntyhadbeenfinaly released before thesubsequent 30 arrest or thatthere is othergood cause for maintainingthat arrest» Article 1

(2)of thesameConventiondefines theword«arrest»as follows· «'Arrest'meansthedetentionofashipbyjudicialprocessto 35 securea manhmeclaim,butdoesnotincludetheseizureofa shipinexecutionorsatisfaction ofajudgment» Ishallproceednowtoexaminethevanousissuesbefore meand I shall deal first with the first issue, concerningthe arrestand/or 478 1C.L.R. MontegriUov.Ro/RoIva SawidesJ. guarantee alleged as having been given for the release of the defendant ship atTripoli. On this issue Iaccept the evidence of Mr. Dujmovic Marijan, who was the local representative at Tripoli of the Yugoslavian 5 State Agency which owned the defendant ship and who at all material times to the present action was on the spot atTripoli,as disclosingthetruefactsofthecase.Hisevidence,infact,astowhat happened atTripolistands uncontradicted. Mr.AntoninoSacca, thesolicitoracting onbehalf ofthe plaintiffs 10 whogave evidence before the Court, incross-examination stated that he had not been to Tripoli,he was unaware of anything that wassaid by Mr.Marijan, he did not know anything about Germa ShippingandStevedoringCompanyatTripoliandthefirsttimehe heardaboutthemwaswhencopiesofthevariousapplicationsand 15 oppositions made onbehalf of«IVA»were communicated tohim. His contention that the defendant ship was never arrested at Tripoliinconnection withthecollisionwithplaintiff 2shipand that nosecuritywasgivenwasbased oninformation receivedfrom the plaintiffs but neither the plaintiffs nor he,himself, carried out any 20 investigationsastothe correctnessofsuch information. The evidence of Mr. Marijan is supported by the various documents which have been produced and which are exhibitsin thiscase. In the statement of facts produced as exhibit 2, which is the .25 document issued concerning the movements of the defendant shipatTripoli,itisclearlystatedthatthevesselwasarrestedonthe 19th April, 1985, as a result of the collision with plaintiff 2 ship «ALIMA» and was allowed to sail after a letter of guarantee was given by the representative of the owners of the defendant ship. 30 Furthermore, a photocopy of the letter of guarantee given on behalf of the defendant ship and which is certified by Germa Shipping Company, the state Agency in Libya that is handling matters touching shipping inLibya, isalso before me.They both support the evidence of the witness called on behalf of the 35 defendant ship. Fromthe evidence ofMr.Marijan, however, nothing emanates totheeffect thatsucharrestwastheresultofajudicialprocessbut, on the contrary as it appears from such evidence the ship was detained by means of aprocesswhich wasinitiatedbythe Claims 40 Department of GermaShippingCompany onbehalf ofplaintiff 2 479 SavvidesJ. Montegrillov. Ro/RoIva

(1989)ship and was released after a letter of guarantee was given on behalf of the defendant. Itis clear, therefore, thatsuch arrest was notanarrestby judicial process andassuch itdoes notfall within the definition of «arrest» under Article 1

(2)of the Brussels Convention which defines «arrest» as detention by judicial 5 process. Article 3

(3)of the said Convention however, does not apply only tocases of arrestbutalsoofbail orothersecuritygiven. Notwithstanding the fact that the arrest of the defendant ship which was noteffected byjudicial process does notfall withinthe ambit of Article 1

(2)of theBrussels Convention, nevertheless, the 10 security given,being asecurityonamaritimeclaimfor the release of theship, is a matterwithin theambit of Article 3

(3). This answers the first question and brings me to the second question.Before, however, answering thesecondquestion,Ishall proceed to examine the third question which I consider as 15 materiallyconnected withthesecond ο .e. Article 3

(3)of the Brussels Convention expressly mentionsan arrest, bail or other security given in any one or more of the jurisdictionsof any of the ContractingStates. Itiscommonground inthis case thatthe arrest inLimassol was an arrest within one of 20 the jurisdictions of the ContractingStates inview of the fact that Yugoslavia, Italy and Great Britain had ratified the Convention anditsprovisions areextendedtoCyprusby virtueofsection 19of the Courts of Justice Law, 1960, whereby the Supreme Courtin the exercise of its Admiralty jurisdiction is vested with the 25 jurisdiction of the High Court in England in admiralty matters as exercised on the day previous to the Declaration of the Independence of Cyprus. The question, however, which has to be answered is whether thearrest atTripoliwas anarrestwithin thejurisdiction of anyone 30 of the Contracting States to the Brussels Convention. Both counselconcededthatLibya isnotapartytotheConventionand, asalready mentioned,suchstatementissupportedby thelistgiven intheBritishShipping Laws,2nd Edition,vol.8,atpp. 1142-1143 to which reference has already been made. Therefore, once 35 Libya, withinthejurisdictionof whichthealleged arresttookplace and theguaranteewas given,isnotapartytotheConvention,the provisions of Article3

(3)arendtapplicable andanysucharrestor security given isnotsuch as contemplatedby theprovisions of the Convention. Inthe result theonly security given within theambit 40 of Article 3

(3)of theConventionisthesubjudiceone. 480 1CX.R. Montegrillov. RO/ROIva SawidesJ. Having found as above, Ifind it unnecessary to deal with the second question as to whether in view of the security given in Libya for the release of the defendant ship from arrest, the plaintiffs areprecluded from arresting theship inLimassol. 5 Astothecaseof TheGolaa, onwhichcounselforthe applicantdefendant sought torelyasembodying theprinciplesof common law, I find that The Golaaisdistinguishable from the present case because in The Golaalegal proceedings had commenced in the United Statesandtheshipwasbailedoutforthepurpose ofbeing 10 released from the arrest and then legal proceedings commenced in U.K. and the question turned on the principle of lis alibi pendens; the facts of that case are in any event distinguishable from the present one. Furthermore that case wasdecided before the ratification by U.K. of the Brussels Convention (supra) which 15 embodiesexpressprovisionsregulatingthe matter. In the result, the application is hereby dismissed with costs in favour of the respondents-plaintiffs. Inview of the result reached plaintiffs' application for striking out paragraph (c) of the prayer becomes superfluous and ishereby dismissed with nocosts. 20 Application dismissed with no order astocosts. 481