(1989)1989August 11 (DEMETRIADES,J.). JAYEEPVCPIPESPVTLTD. ANDOTHERS, Plaintiffs, v. INTERTRUSTSHIPPINGCORPORATION, Defendants. (Admiralty Action No. 96/88). Admiralty—Practice—Intemevers—Application byanintervener to strikeout the answerof another intervener— Question whether suchanapplicationispermissiblenotcoveredbyauthority—Inany event in the circumstances of thiscase the application must be dismissed. 5 Havingfound thattherespondentsweregivenleavetointervene inordertoprotecttheirinterestsinthecontainersinwhichthecargo underarrestwasstuffed andthattheyhadreallynoalternative,but plead their case in the way they did, the Court dismissed the application. 10 Application dismissedwithcosts. Application. Application bythefirst interveners foranorderstrikingout from the answer of the second interveners dated 9th May, 1989, paragraphs 1-9 inclusive. St. McBride, for applicants -1stinterveners. G.Michaelides, for respondents -2nd interveners. Cur. adv. vult. DEMETRIADESJ. read the following ruling.On the 19th May, 1989, the first interveners, Formosan Rubber Group Inc.Ta Win 20 Industrial Co. Ltd. and Epoch Products Corporation, all of Taiwan, applied by summons for an order striking out from the 486 15 1C.L.R. JayeePVCPipesv.Intertmst DemetriadesJ. answer of the second interveners,Scandutch I/S (Partnership)of Denmark, dated the9th May, 1989,paragraphs 1- 9 inclusive. The facts relied upon by the applicants are apparent upon the face of the pleadings and interaliaare: 5 10 «(a)An intervener can set up no defence except what the defendant could setup. (b)Thesecond intervenershavestatedbytheiranswer that theyarenotawareoforconcerned withthemattersallegedin the petition. By so stating their defence they have clearly shown thatanyothermatterthatdoesnotgoinanswertothe mattersallegedinthepetition istotallyirrelevantasitdoesnot disclose any,letaloneany reasonable,answertothecauseof action pleaded». Thefirstintervenersbase theirapplication on Rules87and 237 15 oftheRulesoftheSupremeCourtinitsAdmiraltyJurisdiction and on English Order25Rule 4. The paragraphs sought by the first interveners to be struck our read: 20 25 30 35 «1.TheSecond Interveners are theownersof fifty-five
(55)containers outofthe56containersinwhichthecargoofPVC resin, subject-matter of this action isstuffed. On or about the 11th May, 1988the said 55 containers were supplied by the agents in Beirut of the Second Interveners at the request of MEDSHIPTRANS SARLof Beirut forthe carriage of thesaid cargo from Lebanon to Keeking, Taiwan. The Second Intervenersreservetheirrightstoreferatthetrialofthisaction as may be necessary to the relative shipping notes and/or other documents relating to the supply of the said containers. 2.Thesaidcargowasstuffed inthesaidcontainers,shipped and carriedonoraboutJune 1938from Lebanon toLimassol on the ships 'PETER M'and 'EVANGELIA' for transhipment at Limassol to Keelung,Taiwan. On the 1stJuly, 1988whilst intheprocessofbeingtranshippedatLimassolontheSecond Intervener's ship 'NDL CLARENCE* the said cargo was arrested by virtue of a warrant of arrest issued in Admiralty 487 DemetrtadesJ. JayeePVC Pipesv. Interims!
(1989)Ajtion Ϊ* o. 82/
- V^e said warrantwas discharged onthe 13thAugust,
- On the 19thJuly, 1988 atthe instanceof thePlaintiffs an orderfor thesequestrationof thesaid cargowas madein this actionandtheMarshaloftheAdmiraltyCourtwas appointed 5 assequestratorand/orreceiverofthesaidcargo,withpowers toenteruponandtakethesameandtokeepitinsafetydoing everything necessary for its preservation until final determinationoftheactionand/orfurtherorderoftheCourt. 4.As aresultof thearrestof thesaid cargoonthe1stJuly, io 1988 and/orof theorderofsequestrationmadeonthe19th July, 1988 thecargocouldnotbetranshippedfrom Limassol toTaiwanandthecontract(ifany)forthesupplyand/oruseof the said 55 containersbelonging totheSecondInterveners and/or for the carriage of the said cargo from Limassol to 15 Keelung, Taiwan on the Second Interveners' ship 'NDL CLARENCE'was frustrated. 5.Althoughthecontainersthemselveswerenotthesubjec of the order of sequestration, the Marshal retained the containersforthepurposeof thecustodyandpreservation cf 20 the cargo pursuanttothesaid orderofthe Court dated19th July,
- At the request of the Second Interveners theMarshal appliedonoraboutthe6thSeptember,1988totheCourtfor directions for the unstuffing of the said cargo from the 25 containersandstorageofthecargoinawarehouse,asthecost of storage in a warehouse was substantially less than the keeping of thecargo inthecontainers.TheFirst Interveners opposedtheMarshal'sapplicationandbyitsrulingdated28th December, 1988 the Court ruled that the Marshal was 30 authorised to take all steps that are necessary for the preservation and custody of the cargo at the minimum expense and,ifheconsidersitnecessary,tounstuff thecargo from the containersin which itis stuffed, in which case he should allow their owners to take possession of them. The 35 FirstIntervenersappliedfor areviewofthesaidrulingofthe Court and for a stay of the effect of the ruling dated 14th March, 1989 the Courtrefused tograntthestay applied for and ordered the FirstIntervenerstopay the costs resulting from the keeping of cargo inthecontainersuntilthedateof 40 therulingi.e.the14thMarch,
- 488 1 C.L.R. c 10 15 20 JayeePVCPipesv. lntertrust DemetriadesJ.
- The second Interveners allege that the cost of the . keeping of the cargo in the containers from the time of the order dated 19th July, 1988 form part of the Marshal's expenses for the custody and preservation of the said cargo pursuant to the said order and should be claimed by the Marshal from the party or parties liable for the same, having also regard totheorder of the Courtdated 14th March, 1989 and then paid totheSecond Interveners.
- The said cargo was kept in the said containers from the 19th July, 1988 untilthe present day. Forthe use of the said 55 containers the Second Interveners claim the sum of U.S. $15.00 per container per day (i.e. U.S.$15.00 χ 55 = U.S. $825.00perday)which istheusualand/orreasonable charge as from the 19.7.88 until the unstuffing and delivery of the same to the Second Interveners. For the material period to this action from 19.7.88 to 8.5.89 the cost of the use of the said 55 containersamountsto the sum of U.S. $241,725.00 (i.e. U.S.$15.00 χ 55 containers χ 293 days). The Second Interveners further claim U.S. $ 825.00 per day as from the 9.5.89 until the delivery of the containers to the Second Interveners.
- Inthepremises theSecond Intervenerspray for: 25 (A)Adeclarationby theCourtthatthecostofthekeeping of the cargo in the said 55 containersbelonging to the Second Interveners form part of the Marshal's expenses for the custody andpreservation ofthecargo pursuanttotheorderof the Courtdated 19.7.
- 30 (B)An orderthatthe sum of U.S. $15.00percontainerper day i.e. U.S.$825.00 per day should be paid to the Second Interveners for the use of the said 55 containers from the 19.7.88 untilthe return of the said containers to the Second Interveners. (C)TheSecond Interveners' costs inmis action».' Counselfor theapplicantssubmittedthatany intervener inany 35 proceedings intervenes andisallowed tointerveneinordertoput a defence inonlysuchmattersof adefence whichthedefendantin the action could put and that normally interveners come and put forward a defence because the defendant has no.real motive or incentive todefend. Inthepresentcase,hesubmitted,the answer 489 DemetriadesJ. JayeePVCPipesv.Intertrust
(1989)filed by the second interveners is tantamount to a claim by the second intervenersagainstthefirstinterveners.Inotherwords Jie allegationsmade bythesecond intervenersraisea claim between the two interveners and that is not allowed in the intervening proceedings. Counsel for the second interveners submitted that what they have done by theiranswer isto plead the matters relevant to the protection oftheirinterestinthecontainers;thattheysimplyasked the Court to direct that the cost of the detention of the cargo in containers tobepartoftheMarshal'sexpensesforthecustodyand 10 preservation of the cargo; and that ifbecause of any order of the Court either in the past or inthe future thiscostwillbe ordered to be paid by the first interveners or part of thiscost, ifthe case may beso,thisisanothermatterand thefirstintervenershavetheright toattack such an order bytheproper meansavailabletothem. 15 The issue that pauses for decision iswhether an intervener can apply to the Court praying for the striking out of pleadings of another intervener. For this matter I had no assistance from counsel. Ihave carried out research but Ihave found no instance for which an application of thisnature wasmade and an order for 20 the striking out of pleadings granted. The application, as Ihave earlier mentioned, isbased on the CyprusAdmiraltyJurisdiction Order 1893,Order87andOrder25 Rule 4 of the English Rules of the Supreme Court. Order 87 is irrelevant. Order25 Rule4 makesprovision astowhen the Court 25 willstrikeoutanaction orpleadings Asitappearsfromthisrulean action ora defence maybestruckoutifitdisclosesno reasonable cause and insuch a case it mustbe shown that thepleadings are frivolous or vexatious, unnecessary or scandalous or they intend toprejudice, embarass or delaythe fairtrialof the action. 30 In the present case and having gone through the file of this action Inoted that the purpose for which the second interveners applied for and were granted leave to intervene was to protect their interest in the containers in which the cargo in dispute was stuffed and which containers were in effect for a considerable 35 period suffering the result of the warrant of arrest issued for the cargo. Itis,therefore, myviewthatinthecircumstancesthe application for the striking out of the answer of the first interveners must be 490 5 1C.L.R. JayeePVCPipesv. Intertrust DemetriadesJ. dismisses. 1- .;ny event the second interveners had no other alternativeandhadnocauseotherthantoproceedandpleadtheir caseintheiransweronthelinesthatappearinit. Application dismissedwithcosts. 491