|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1975) 1 CLR 472
1975 December 30
[A. LOIZOU, J.]
CO-OPERATIVE ORGANIZATION OF GENERAL TRADE
(S.O.G.E.K.) CYPRUS LTD.,
Plaintiffs,
and
THE SHIP "BLUE SEA" (OWNERS) NOW
LYING AT FAMAGUSTA HARBOUR,
and Defendants,
1. BLUE SEA SHIPPING COMPANY LIMITED,
2. REEDEREI JONNY WESCH,
Applicants.
(Admiralty Action No. 5/74).
Admiralty-Practice-Parties-Joinder-Principles applicable- Discretion of the Court-Application to add two further defendants-Applicants not already parties-Action for breach of contract of afreightment-Determination of dispute between present parties will not directly affect proposed defendant 2 in his legal rights or in his pocket-Application to be added as defendant refused-Rules 29, 30 and 32 of the Cyprus Admiralty Jurisdiction Order, 1893.
Cyprus Admiralty Jurisdiction Order, 1893-Rules 30-Construction-Intervener-Whether "a person interested in the action" within the meaning of the said rule.
By an action in rem the plaintiffs claimed damages from the defendants for, inter alia, breach of contract of afreightment and/or for unlawful exercise of lien on the cargo of the plaintiff.
By an application under rules 29, 30 and 32 of the Cyprus Admiralty Jurisdiction Order, 1893 the applicants who were not parties to the action applied "for an order of the Court that they be joined as defendants in this action upon such terms as shall seem just".
Applicants No. 1 were the owners of the defendant vessel and the plaintiffs had no objection to their being joined as defendants, but they did object to the joining of applicants No. 2.
Plaintiffs alleged that, the defendants in contravention of the terms of the charterparty, which were incorporated in the Bill of Lading, arbitrarily and without the consent and agreement of the plaintiffs inserted in the bill of lading the following clause:
"Owners having a lien upon cargo covered by this Bill of Lading outstanding amount due under time charter contract with Messrs. Mortensen and Lange, dated 4th August, 1972 and addendum, thereto"; and that the defendants, resting upon the above clause arbitrarily exercised a lien upon part of the cargo of the plaintiffs up to the value of £18,000. Such lien was exercised by unknown to plaintiffs alleged time charter owners. The said time charter owners were applicants No.2.
Applicants contended that the reason why the defendant vessel did not deliver- part of the cargo was the exercise of a lien by or on behalf of applicants or either of them, and that the action brought by plaintiffs against the defendant vessel relates solely to the non delivery of the said cargo, in view of the exercise of the above lien. And as the defence to the action would be the lawful exercise of the above lien, and that as there would be a counterclaim, for a declaration that such lien was lawfully exercised, the applicants were necessary parties which ought to be added as defendants in order to counterclaim for the above declaration.
Counsel for the applicants submitted that our Admiralty Rules do not provide anything about interveners, because rule 30 (quoted in full in the judgment post) is so widely framed as to include the cases normally covered by Order 9, rule 10 of the Civil Procedure Rules and the case of interveners, under Order 12, rule 24 of the old English Rules of the Supreme Court, with the difference that in Admiralty actions in Cyprus, such an intervener-a person "interested in the action"-is entitled to be made a full-fledged defendant and he can so be added.
Held, (1) The only extention of the meaning of rule 30 made by our Admiralty Rules themselves, is to be found in rule 31, which clearly says that for the purposes of rule 30 an underwriter or insurer, shall be deemed to be a person interested in the action, which means, that a normal intervener is not to be deemed a person interested in the action. The instances where intervention was allowed are to be found in the British Shipping Laws, Admiralty Practice, (1964) p. 137, paragraph 312, which includes charterers. (See, also, The Lord Strathcona [1925] P. 143 and The Byzantion [1922] 16 Asp. 19).
(2) The Court has a discretion to add a party to an action at law if the determination of the dispute will direcf1y affect him in his legal rights or in his pocket in that he will be bound to foot the bill. (See Arternis Company Ltd. v. Ship "SONJA" (1972) 1 C.L.R. 153 at p. 160).
(3) In the first place, the determination of the dispute between the present parties, does not directly affect applicant 2, in his legal rights or in his pocket, in that, he will be bound to foot the bill. If the proposed defendant 2 is not allowed to come in as defendant, what will happen? They still have their our remedies, as between themselves and the persons with whom they are in conflict, and they still have other procedural means open to them. (See Gurtner v. Circuit [1968] 1 All E.R. 328 at p. 332).
(4) The matter in issue between the parties being whether the said clause was properly inserted in the Bill of Lading and was binding on the plaintiffs or whether it was arbitrarily inserted and without their consent and agreement, the addition of applicants 2 as defendants will, only complicate, delay and embarrass the proceedings. The application is dismissed as far as applicants 2 are concerned.
Order accordingly.
Cases referred to:
Artemis Company Limited v. The Ship "SONJA" (1972) 1 C.L.R. 153 at p. 160;
General Insurance Co. Ltd. of cyprus v. Maroulla Georghiou & Another (1963) 2 C.L.R. 117;
Amon v. Raphael Tuck & Sons Ltd., [1956] 1 All E.R.273 at p. 277;
Gurtner v. Circuit [1968) 1 All E.R. 328 at p. 331;
The Lord Strathcona [1925] P. 143;
The Byzantion [1922] 16 Asp. 19.
Application.
Application under Rules 29, 30 and 32 of the Cyprus Admiralty Jurisdiction Order, 1893, for an order that the Applicants be joined as defendants in an admiralty action whereby the plaintiffs claimed from defendants damages for breach of contract of afreightment.
Chr. Demetriades, for the applicants.
Fr. Saveriades with S. Charalambous for the respondents.
The following ruling was delivered by:-
A. LOIZOU, J.: This is an application under Rules 29, 30 and 32 of the Cyprus Admiralty Jurisdiction Order, 1893, whereby, "the applicants apply for an order of the Court that they be joined as defendants in this action upon such terms as shall seem just and that no petition or answer be filed in this action, until this application is heard".
By this action in rem, the plaintiff Co-Operative Organization claims damages for breach of contract of afreightment and/or damages for failure to deliver the cargo of the plaintiffs as per the Bill of Lading and/or for wrongful detention and/or otherwise, and/or damages for unlawful and/or otherwise exercise of lien on the cargo of the plaintiffs carried by the defendants in breach of the conditions of the contract of afreightment and/or otherwise.
Applicants No. 1 are the owners of the defendant vessel, and the plaintiffs, respondents in this application, have no objection to their being joined as defendants but they do object to the joining of applicants No. 2, who, as it is stated in the affidavit filed in support of this application, they were at all material times the time charter owners of the said vessel and it is in respects of the joining of applicants No. 2 that these proceedings relate.
The plaintiffs-respondents, together with the filing of their action, applied and obtained a warrant for the arrest of the defendant ship. In the affidavit filed in support of that application, it was deposed-
"4. To my best knowledge and belief the plaintiff is a holder of a bill of lading dated 20.12.73 as per charter-party dated 26.11.73 incorporating all the terms conditions and exceptions of the charter-party.
5. The plaintiff has paid the freight and is the owner of goods consisting of iron steel bars and paid the sum of £113,500.000.
6. The bills of lading were issued by the Master and or owners of the said ship "Blue Sea" but in contravention of the terms of the charter-party dated 26.11.73 which were incorporated in the bill of lading inserted in it arbitrarily and without the consent and agreement of the plaintiff the following clauses.
'Owners having a lien upon cargo covered by this B/L outstanding amount due under time charter contract with Messrs. Mortesen and Lange, dated 4th August, 1972 and addendum thereto'.
7. The defendant in breach of above agreement and resting upon the above clause which plaintiff did not accept or knew has arbitrarily exercised a lien upon part of the cargo of the plaintiff up to the value of. £18,000.- not specifying the quantity of cargo of the said lien.
8. This lien was exercised by unknown to plaintiff alleged time-charter owners REEDEREI JONNY WELCH K.S. of HAMBURG, through their lawyer Mr. Chrysis Demetriades of Limassol.
9. The plaintiff has through their advocate protested to the lien imposed by a letter dated 26.1.74 which was handed to master and or owners of the ship but was refused and by a telegram dated 28.1.74 and protesting for the lien imposed and calling defendant to waive the said lien holding them responsible for damages.
10. Defendant failed to waive the said lien."
The applicants though disputing many allegations of this affidavit, by their affidavit confirm that the reason why defendant vessel did not deliver part of the cargo was the exercise of a lien by or on behalf of applicants or either of them, as admitted by the said affidavit and that the action brought by plaintiffs against defendant vessel relates solely to the non-delivery of the said cargo, in view of the exercise of the above lien. By paragraph 6 of the said affidavit it is deposed as follows:
"6. I am informed by Mr. Chrysses Demetriades, Advocate handling the case for Applicants and for Defendant vessel, and I verily believe that the Defence to this action would be the lawful exercise of the above lien and that, furthermore, there should be a counterclaim for a declaration that such lien was lawfully exercised and that Applicants are necessary parties which ought to be added as Defendants, in order to counterclaim for the above declaration."
The three relevant Rules relied upon by the applicants in support of their application, read as follows:-
"29. Any number of persons having interests of the nature arising out of the same matter may be joined in the same action whether as Plaintiffs or as Defendants.
30. The Court or Judge may at any stage of the proceedings and either with or without an application for that purpose being made by any party or person and upon such terms as shall seem just, order that the name or names of any party or parties be struck out or that the names of any person or persons who are interested in the action or who ought to have been joined either as Plaintiffs or Defendants or whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the action be added.
31. ......
32. The Court or Judge may order upon what terms any person shall be joined as a party, and what notices and documents, if any, shall be given to and served upon him, and may give such further directions in the matter as shall seem fit."
In the case of Artemis Company Limited v. The Ship "SONJA" (1972) 1 C.L.R. 153, I had the occasion of reviewing the authorities regarding the principles governing the addition of a defendant either on the application of the defendant or of a person not already a party and referred to our case of General Insurance Co. Ltd. of Cyprus v. Maroulla Georghiou & Another (1963) 2 C.L.R. p. 117, and to a number of English authorities, including Amon v. Raphael Tuck & Sons Ltd., [1956] 1 All E.R. p. 273 at p. 277, as well as the case of Gurtner Circuit [1968] 1 All E.R. 328 at p. 331 quoting the passage from the judgment of Lord Denning, M.R., and at pp. 160-161, I said:
"The principle therefore was extended considerably with Salmon L.J. concurring to the effect that the Court has a discretion to add a party to an action at law if the determination of that dispute will directly affect him in his legal rights or his pocket in that he will be bound to foot the bill. Furthermore Diplock L.J. with Salmon, L.J. concurring concluded that a matter was not 'effectively adjudicated upon' within this order unless all those who would be liable to satisfy the judgment were heard; thus not applying the dictum of Devlin, J. in Amon's case (supra) found at p. 287 where he said:
'The only reason which makes it necessary to make a person a party to an action is so that he may be bound by the result of an action and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party'.
Lord Denning M.R. preferred the wider interpretation given to the rule by Lord Esher M.R. in Byrne v. Brown [1889] 22 Q.B.D. 657 where he said at p. 666:
'One of the chief objects of the Judicature Acts was to secure that, wherever a Court can see in the transaction brought before it that the rights of one of the parties will or may be so affected that under the forms of law other actions may be brought in respect of that transaction, the Court shall have power to bring all the parties before it, and determine the rights of all in one proceeding. It is not necessary that the evidence in the issues raised by the new parties being brought in should be exactly the same; it is sufficient if the main evidence, and the main inquiry, will be the same, and the Court then has power to bring in the new parties, and to adjudicate in one proceeding upon the rights of all the parties before it. Another great object was to diminish the cost of litigation. That being so, the Court ought to give the largest construction to those Acts in order to carry out as far as possible the two objects I have mentioned'."
It has been argued by counsel for the applicants that our Admiralty Rules, do not provide anything about interveners, because Rule 30, is so widely framed, as to include the cases normally covered by Order 9, rule 10 of the Civil Procedure Rules and the case of interveners, under Order 12, rule 24 of the old English Rules of the Supreme Court, with the difference that in admiralty actions in Cyprus, such an intervener-a person, "interested in the action", is entitled to be made a full-fledged defendant and he can so be added.
In interpreting a particular statutory enactment, one has to look to the meaning of the enactment itself and not to the absence of any provisions. In any event, under Rule 237 of the Cyprus Admiralty Jurisdiction Order, "In all cases not provided by these Rules, the practice of the Admiralty Division of the High Court of Justice in England so far as the same shall appear to be applicable, shall be followed", and the wording of this Rule appears to be wide enough to include the practice relating to interveners. Furthermore, Rule 30 corresponds to the old English Order 16, rule 11, now re-numbered as Order 15, rule 6, in the Revised English Rules of the Supreme Court. (See Artemis Co. Ltd. v. The Ship "SONJA" (supra), p. 156). If it will help things more, it may be mentioned that in the Revised English Rules, the provision regarding interveners in admiralty actions, is still preserved and the old Order 12, rule 24, is reproduced, with amendments, in Order 75, rule 17. The object of this rule, as given in a note to it in the Supreme Court Practice, 1973, is "to enable a person who has a substantial interest in the res to intervene, if this interest may be injuriously affected by the action against the res, and to protect his interests. The rights of an intervener are limited to the protection of his interest in the res, and he has no locus standi to raise issues which are not material to this purpose". The authorities given in support of the aforesaid proposition, are, the case of The Lord Strathcona, [1925] P. 143 and The Byzantion (1922) 16 Asp.19, and it goes on to say that, charterers are an example of interveners. (See British Shipping Laws, Vol. 1, (1964), para. 310 et seq., and Suppt. (1970)).
Looking at the wording of the Rule, as such, I cannot give to it any other interpretation than the one which has been given to Order 16, rule 11, in the cases hereinabove set out, from which, principles, I see no reason to depart. The only extention of the meaning of Rule 30 made by the Cyprus Admiralty Jurisdiction Order itself, is to be found in Rule 31, which, clearly says, that for the purposes of the last-preceding Rule an underwriter or insurer, shall be deemed to be a person interested in the action, which means, that a normal intervener is not to be deemed a person interested in the action. The instances where intervention was allowed, which I need not repeat, are to be found in the British Shipping Laws, Admiralty Practice, (1964) p. 137, para. 312, which includes charterers. In the circumstances, I have not been persuaded that this application should be granted.
In the first place, the determination of the dispute between the present parties, does not directly affect the proposed defendant 2, in his legal rights or in his pocket, in that, he will be bound to foot the bill. "If the proposed defendant 2 is not allowed to come in as defendant, what will happen?" to repeat the question posed by Lord Denning, in the Gunner case (supra) at p. 332. They still have their own remedies, as between themselves and the persons with whom they are in conflict, and they till have other procedural means open to them.
The matter in issue between the present parties to he case, is, whether the clause, "Owners having a lien upon cargo covered by this Bill of Lading outstanding amount due under time charter contract with Messrs. Mortensen and Lange, dated 4th August, 1972 and addendum thereto", was properly inserted and was binding on the plaintiffs, or it was arbitrarily inserted, and without their consent and agreement, as claimed by the plaintiffs, and, therefore, not binding on them. The addition of applicants 2 will only complicate, delay and embarrass the proceedings.
Considering all the circumstances of the present case and that in any event this is a matter in the Court's discretion, I do not propose to grant the order applied for. The application, however, is granted, as far as applicants 1, the owners of the defendant vessel are concerned, for which there has been no objection on behalf of the plaintiffs-respondents, and an order is made accordingly, to the effect that the said applicants, be joined as defendants in the aforesaid action. The application is dismissed as far as applicants 2 are concerned, with costs against them.
Order accordingly.