1C.L.R. 1989February9 (A LOIZOU,P.) SEAISLANDTRAVEL&TOURSLIMITED, Plaintiffs, v.. 1.M.T.GALAXIAS,NOWLYINGATTHEPORTOFLIMASSOL, 2.UNITEDBROTHERSSHIPPING CO INC., Defendants. (AdmiraltyAction No. 86/88). Admiralty —Action inrem— Warrantofarrestofshipissuedupon anex parte application—Filing of notice of intention to oppose the application— Whether this is a proper procedure — Question pondered, butleftopen, as,onthemerits,the warrantcould,on the 5 faceoftheaffidavit, be validlyissued. 10 InthiscasetheCourtconsidered thequestionwhether, following theissueofawarrantofarrestoftheshipinanactioninrem,theproper procedure tobe followed by the defendants, ifthey desired the discharge of the warrant, is by the filing of an opposition or by a separate application. The Court suggested that the problem should besolved eitherbyapractice direction ora ruleof Court. IVananf ofarresttoremaininforce.Costs of the plaintiffsagainst defendant 1. No orderastocostsasregardsdefendants 2. 15 Casesreferredto: The Ship *Gloriana» and Another v. Breidi and another {1982} 1 C.L.R.409. Notice ofintention to oppose. Notice of intention to oppose the application for the issue of the 20 warrant of arrest. A. Theofilou, for plaintiffs-applicants. 91
(1989)SeaIslandv. M.T. Galaxias C. Velaris with A. Paschalides, for defendants 1 - respondents
- L. Papaphilippou, for defendants 2 -respondents
- Cur. adv. vult. A. LOIZOU P.read the followingjudgment. Upon thefilingof 5 an action in rem and in personam against the defendant ship GALAXIAS, asdefendants 1,and United BrothersShipping Co., Inc.,of Panama Cityasdefendants 2,1issuedawarrantofarrestof the said ship on the basis of an affidavit filed in support of the application for the issue of such warrant, and a number of 10 documents appended theretoas exhibits. The prayers forrelief on thewritare the following: «A. C£21000.- being money paid and/or payable by the Plaintiffs in their capacity as general agents of the Defendant shipand/orattherequestofherMasterand/orownersand/or 15 Defendants 2, as charterers, in cash advances, recruitment and repatriation expenses, port charges and overtimes, customs charges and overtimes port agent's fees, bunkering and provisions, telephone and telexes, repairs and other disbursements paid for the ship, and for advertising and 20 promotional expenses for Defendant ship's voyages. B. C£2970.- being commissions lost on the tickets sold (under a general sale agency agreement dated 17.4.88 by which Plaintiffs were the G.S.A. of the ship) for Defendant ship's first trip which wascancelled due toherinadequacy of 25 equipment and/orinefficiency ofdocumentations and/or due to not being allowed by the authorities to sail for other violationsof regulations. C. C£3692.- being an amount paid in compensation and/ or expenses of passengers & travel agencies due to the 30 cancellation of Defendant ship's first voyage Umassol Alexandria -Limassolwhichwasscheduled on2.7.88andthe Plaintiffs had to pay under the above agreement of General SalesAgencydated 17.4.
- D. Damages over C£50000.- for breach ofthe agreement 35 between the Plaintiffs and the Defendant ship and/or her Charterers (Defendants 2) dated on or about 17.4.88 by which Defendant ship was to be employed, under the G.S. 92 1 C.L.R. SeaIslandv. M.T.Galaxias A. LolzouP. Agency of the Plaintiffs in the line between the ports of Alexandria - Limassol - Izmir -Limassol - Alexandria for a period of 4 months starting on 2.7.88when the first voyage was cancelled as above. 5 E.Interest. F.Costs and interest.» According to the affidavit the plaintiffs were engaged by the charterers of the defendant ship, that is defendants 2 as general agents of theshipfor thesaleofticketsunderthetermsofawritten 10 agreement which isappended as Exhibit(A). Paragraph 5 of theaffidavit reads as follows: 15 20 «Furtherand on instructions from theowners (photocopies Exhibit C ) and thecharterers (photocopies Exhibit D ),of the defendant ship, as well as the master and/or purser of the defendant ship {photocopies Exhibit Ε), they proceeded to the appointmentof a port agent for the purchase of supplies and bunkers, the effect of several repairs as well as the arrangements for the replacement of members of the crew, paying and/orundertaking topay several sums as the bundle of documents -Exhibit Ζ,as well as C£3500 in cash to the charterers on the 2nd July 1988, for meeting the problems thatarose (Exhibit Η)» The warrant of arrest issued contained a clause that the defendant shipshould be released by theMarshalupon directions 25 of the Registrar of this Court on the filing of a security bond on behalf of the defendant ship in the sum of C£30,000 for the satisfaction of any order orjudgment tobe given in favour of the plaintiffs/applicants. Itis obvious from thisclause thattheamount for thesecurity was confined totheissueswhich according tothe 30 prayers for relief were altematively ascribed to the owners of same. Needless to say that on the material before me I was satisfied, as I oughtto,thattherewas aserious question tobe tried atthehearing andthatonthefactebefore methereisa probability that the plaintiff is entitled to relief.(SeeAnastassiou v. The Ship 35 «Mahee>
(1982)1 C.L.R. 343). Thewarrant of arrest was fixed onthe9thJuly 1988 «incase the respondentsoranyone interested intheship decided tomove the Court for the release of the ship». This was done by thefilingof a Notice of Intention to oppose the application for the issue of the 93 A. LoizouP. SeaIsland v. Μ.T. Galaxlas
(1989)warrant of arrest and in the accompanying affidavit there are set outthatfacts relating totheacquisition of theshipandtheentering into a Charter-partywith defendants 2, denying atthesame time thatthe owners owed anything tothe plaintiffs andthatany claim they might have should be directed to others and notagainst the' defendant ship or its owners. 5 Extensive argument hasbeen heardfrom bothsides, butIhave cometotheconclusion thatthewarrantof arrestontheface ofthe affidavits filed could validly be issued. The remaining being matters to be determined at the trial. The motion therefore to 10 discharge the order fails. There hasbeen raised thequestion whethertheapplicantcould validly raise his objection in the form that he did. Inthat respect reference may be made to the case of The Ship «Gloriana» and Another v. Breidi and another
(1982)1 C.L.R. 409, where the 15 question of theproperprocedurefor opposing thecontinuancein force of a warrant of arrest or for asking for its discharge was considered, though the nonfiling of an independent application for that purpose was treated as a breach of a formality which did notconstitute a fundamental defect. 20 In view of the result arrived at on the merits of the application and thedirectionthatthewarrant ofarrestcontinuestobe in force Idonotintendto and indeedI need notdelve onthisaspectofthe case, but I may say here that the matter should be regulated by eitherapracticedirectionorby theintroductionofa RuleofCourt 25 answering anumberof questions thatinevitably arise by following the one or the other course, one of them being, whether the plaintiffs, at whose instance a warrant of arrest is issued on an ex parte application supported by affidavit or affidavits, will be entitled or not to file a written opposition to the independent 30 application for thedischarge of thewarrantissued, supported by a fresh applicationsupplementingthematerialonwhichthewarrant of arrest was issued ornot. Intheresult theopposition tothewarrant of arrest remainingin force failsandthewarrantofarrestshould continuetobeinforce. 35 The costs of the plaintiffs to be bom by respondents 1 - 94 1C.L.R. SeaIslandv.Μ. Τ. Galaxias A. LoizouP. defendants 1. There will be, however, no order as to costs as regards respondents 2 - defendants 2. Opposition fails. Wanant of arrest to remain in force. Orderfor costs as above. 95