The Owners of Cargo lately laden on board the ship or vessel "Kyriakos M" v. The Owners and/or Demise Charterers of the ship or vessel "Kyriakos M"

The Owners of Cargo lately laden on board the ship or vessel "Kyriakos M" v. The Owners and/or Demise Charterers of the ship or vessel "Kyriakos M"

Defendants failed to show sufficient cause to vary the existing order: the risk of future claims covered by the plaintiffs' undertaking was speculative given the buyer had seen the mate's receipt and the waiver sought was wider than necessary; the US$200,000 security reasonably reflected likely interlocutory losses; the US$842,203.11 paid into court would not be treated as additional security for the undertaking; and there was a good arguable claim justifying maintenance of the caveat. Therefore the defendants' summons to vary the order was dismissed with costs to the plaintiffs.

Citation
The Owners of Cargo lately laden on board the ship or vessel "Kyriakos M" v. The Owners and/or Demise Charterers of the ship or vessel "Kyriakos M"
Parties
Plaintiffs: The Owners of Cargo lately laden on board the ship Kyriakos M; Defendants: The Owners and/or Demise Charterers of the ship Kyriakos M
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 December 1994
Case Number
HCAJ382/1994
Procedural Posture
Admiralty (action in Rem) / High Court Admiralty Jurisdiction / Interlocutory Variation Application (post Arrest, Application to Vary Order Dated 7 December 1994)
Outcome
Defendants' summons to vary the Order dated 7 December 1994 dismissed; all variation applications refused; caveat maintained; cross-applications for security for costs adjourned sine die with liberty to restore.
Legal Topics
Arrest of Ship, Variation of Interlocutory Order, Security for Undertakings/fortifying Undertaking, Misrepresentation on Bill of Lading, Caveat Against Release, Quantification of Interlocutory Damages
Source Language
EN
Admiralty/maritime Law Civil Procedure Contract of Carriage Bills of Lading Tort (negligence/conversion) Arrest of Ship Variation of Interlocutory Order Security for Undertakings/fortifying Undertaking +3 more

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Parties

The Owners of Cargo lately laden on board the ship Kyriakos M

Plaintiffs

The Owners and/or Demise Charterers of the ship Kyriakos M

Defendants

Procedural Posture

Admiralty (action in Rem) / High Court Admiralty Jurisdiction / Interlocutory Variation Application (post Arrest, Application to Vary Order Dated 7 December 1994)

Legal Issues

  1. 1 Whether the sum paid into court (US$842,203.11) could stand as security for the plaintiffs' undertaking in damages
  2. 2 Whether the court should increase the plaintiffs' security to US$1.25m or otherwise vary the existing undertakings
  3. 3 Whether the defendants' separate security of US$200,000 should be reduced

Ratio Decidendi

Defendants failed to show sufficient cause to vary the existing order: the risk of future claims covered by the plaintiffs' undertaking was speculative given the buyer had seen the mate's receipt and the waiver sought was wider than necessary; the US$200,000 security reasonably reflected likely interlocutory losses; the US$842,203.11 paid into court would not be treated as additional security for the undertaking; and there was a good arguable claim justifying maintenance of the caveat. Therefore the defendants' summons to vary the order was dismissed with costs to the plaintiffs.

Court Disposition

Defendants' summons to vary the Order dated 7 December 1994 dismissed; all variation applications refused; caveat maintained; cross-applications for security for costs adjourned sine die with liberty to restore.

Orders

  • Defendants' summons to vary the order dismissed with costs to the Plaintiffs
  • Application to treat US$842,203.11 paid into court as security for the Plaintiffs' undertaking refused