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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1980) 1 CLR 436
1980 September 18
[DEMETRIADES, J.]
EDDY BREIDI AND ANOTHER,
Plaintiffs,
v.
THE SHIP "GLORIANA" AND OTHERS,
Defendants.
(Admiralty Action No. 13/80).
Admiralty—Practice—Evidence—Arrest of ship—Affidavit accompanying application for—Cannot only be supplemented by oral evidence but by further affidavits—Cyprus Admiralty Jurisdiction Order, 1893 rules 50-54 and 116 and Form C in Schedule I thereto.
On January 16, 1980 the Court, upon an ex parte application, issued a warrant of arrest of the defendant ship "Gloriana". The warrant of arrest was issued on the basis of an affidavit. When, in the course of the hearing of the proceedings against the issue of the warrant of arrest, plaintiffs attempted to produce a contract of affreightment for the carriage of the goods involved in these proceedings, the defendants objected on the ground that as such a contract had not been appended or made an exhibit to the above affidavit the plaintiffs could not supplement their evidence by its production; and that it was too late in the day for the plaintiffs to produce this document because it was evidence that had to be produced at the time the Court had to decide whether to issue the warrant of arrest.
Held, that the affidavit filed in support of the application for the issue of the warrant of arrest cannot only be supplemented by oral evidence but by further affidavits if any when the occasion arises; and that as mention of the said contract is made in the affidavit in question the contract can certainly be produced at this stage (see rules 50-54 and 116 of the Cyprus Admiralty Jurisdiction Order, 1893 and Form C in Schedule I thereto).
Order accordingly.
Application.
Application for the issue of a warrant of arrest of the defendant ship in an admiralty action for damages for loss for non-delivery of cargo and/or breach of contract of affreightment and/or negligence and/or breach of contract of carriage and/or breach of contract for the sale of goods.
D. Demetriades, for the applicants.
C. HadjiIoannou, for respondents 1.
L. Demetriades with St. Nathanael, for respondents 2 and 3.
Cur. adv. vult.
DEMETRIADES J. read the following ruling. The present application is one for the arrest of the ship "GLORIANA", the first defendant in the Action.
The plaintiffs in this Action claim:-
"A. The equivalent amount in Cyprus Pounds of the sum of U.S. Dollars 1,000.000.00 as damages for loss for non-delivery of cargo, and/or for breach of contract of affreightment and/or for negligence and/or for breach of contract of carriage and/or for breach of contract for the sale of goods now loaded on Defendant ship and/or otherwise on or about 14/1/80.
B. Interest at 9% per annum as from 4/1/80 to final payment.
C. The costs and expenses of this Action and of all proceeings herein."
On the 16th January, 1980, defendant No. 1 was arrested in the Action but was released after the defendants filed a security bond in the sum of C£200,000.—in accordance with a term imposed by the Court when issuing the warrant of arrest. The defendants oppose the application.
The warrant of arrest was issued on the basis of an affidavit sworn by Mr. Pavlos Kakopieros, an advocate in the Law Office of the plaintiffs' counsel. When, in the course of the hearing of the application, counsel for the applicants-plaintiffs attempted to produce a contract of affreightment for the carriage of the goods involved in these proceedings, the defendants objected on the ground that as such a contract had not been appended or made an exhibit to the said affidavit, the plaintiffs could not supplement their evidence by its production.
The main issue, therefore, that is before me for ruling is whether this contract can be produced at this stage of the proceedings in support of the application of the plaintiffs.
The affiant Mr. Kakopieros, in para. 5 of the aforementioned affidavit, swears as follows:-
"Plaintiffs by a contract of affreightment for the carriage of above goods agreed with defendants 1 and/or her charterers and/or her agents to carry 42 containers containing 3.024 T.V. sets (20 footer) from Ravena (Italy) to Beirut Lebanon, freight payable at destination."
Mr. L. Demetriades appearing for the defendants submitted that it was too late in the day for the plaintiffs to produce this document because, he said, it was evidence that had to be produced at the time the Court had to decide whether to issue the warrant of arrest and that by not producing it, the plaintiffs did not, at that time, fully disclose to the Court their facts.
Counsel for the applicants, on this issue referred the Court to the Rules of Court governing the issue of a warrant of arrest. He further submitted that in view of Form C. in Schedule I of the Cyprus Admiralty Jurisdiction Order 1893, he had no need to place before the Court, at the time he appeared for the issue of the warrant of arrest, facts other than those required by Form C. in Schedule I. In making this submission, counsel for the applicants relied on rules 50-54 of the afore-mentioned Order which read:-
"50. In an action in rem any party may at the time of, or at any time after the issue of the writ of summons, apply to the Court or a Judge for the issue of a warrant for the arrest of property.
The party so applying shall before making his application file in the Court an affidavit containing the particulars prescribed by the following rules.
Such application shall be in writing signed by the person making the application or his advocate and shall be filed by the Registrar.
The affidavit may be in the Form C in Schedule I hereto.
51. The affidavit shall state the nature of the claim, and that the aid of the Court is required.
52. The affidavit shall also state—
(a) In an action for wages, the national characterof the ship, and if the ship is neither a Britishnor an Ottoman ship, that notice of the action has been served upon a consular officer of the State to which the ship belongs, if there is one resident in Cyprus;
(b) Inanaction for necessaries, or for building, equipping, or repairing any ship, the nationalcharacter of the ship, and that, to the best of the deponent's belief, no owner or part owner of the ship was domiciled in Cyprus at the time when the necessaries were supplied or the work was done.
53. In an action for bottomry, the bottomry bond in original shall be produced for the inspection and perusal of the Court or Judge, and a copy of the bond, or of a translation thereof, certified by the Registrar to be correct, shall be annexed to the affidavit and filed therewith.
54. The Court or Judge may direct the issue of a warrant although the affidavit does not contain all the presscribed particulars, and, in an action for bottomry, although the bond has not been produced."
The submission of counsel for the applicants that nothing more is required to be stated in the affidavit filed in support of an application for the issue of a warrant of arrest than that which is provided in Form C. in Schedule I, appears to be correct when rules 50-54 are read in conjunction with rule 116 which provides:-
"Evidence on an application for an order and at the hearing of an action shall in general be given by the oral examination of witnesses; but the mode or modes in which evidence shall be given, either on any application or at the hearing of an action, may be determined either by consent of the parties, or by direction of the Court or Judge."
It is, therefore, my view that the affidavit filed in support of the application for the issue of the warrant of arrest cannot only be supplemented by oral evidence, but by further affidavits if and when the occasion arises. In any event, as mention of the said contract is made in the affidavit of Mr. Kakopieros, this can certainly be produced at this stage.
Counsel for the applicants submitted to the Court that the mode in which the evidence to be given in the present proceedings be determined by the Court, but before deciding this application, I must have an intimation from all counsel appearing as to what kind of evidence they intend to adduce.
I, therefore, fix the Action for Mention on the 2nd October, 1980, when directions will be made as to the mode in which the evidence in these proceedings shall be given.
Order accordingly.