The plaintiff claimed EUR 32,530.30 on the basis of invoices and/or on the basis of agreement and/or as damages for breach of contract for the mooring of the defendant boat in Limassol Marina and the reasonable remuneration of the plaintiff for services provided and/or supplies delivered and/or various other services performed on behalf of the vessel in question while it was docked at the marina. At the same time, the plaintiff filed an ex parte application demanding the arrest of the vessel. The Court issued an arrest warrant for the vessel with instructions, among other things, that it be released as soon as a guarantee of EUR 50,000 was registered to the satisfaction of the Registrar.

The defendant lodged an objection, alleging that the laws and institutions on which the arrest application was based did not legitimise the vessel's arrest, while the actual background of the application did not correspond to the facts and was incomplete and insufficient. Furthermore, no minimum factual background had been set out to show that the Maritime Court had jurisdiction and that the plaintiff had an enforceable claim under the in rem jurisdiction. The defendant further argued the the arrest was made in bad faith, and that the security ordered by the Court was excessive and should be reduced to the amount that was likely to be awarded if the lawsuit were to be successful.

Held: The arrest warrant issued is cancelled and the boat is released.

The plaintiff's application is based on the Cyprus Admiralty Jurisdiction Order 1893 (the Order), rr 50-59, 203-212 and 237, the Administration of Justice Act 1956 (UK) (the Act), ss 1(1)(m), 1(1)(n) and 1(1)(p) [which correspond to arts 1.1.k, 1.1.l and 1.1.n of the Arrest Convention 1952], which Act is applied on the basis of the Law on Courts 14/1960, on the case law, and on the inherent powers of the Court.

The plaintiff's submission raises a procedural issue that the objection of the defendants should not be taken into account as, according to the provisions of rr 65-68 of the Order, they should have registered an application to release the vessel rather than lodging an objection to the application. The suggestion is not valid. In the case of Ship 'Gloriana' v Breidi (1982) 1 CLR 409, which dealt with a similar issue, it was held that the non-registration of an independent request for the release of the ship is a simple irregularity which does not invalidate the procedure. The same finding was made in Mario Cirino Pomicino SpA v The Ship M/V Bay Star (1977) 1 AAD 1454 and Panagi v The Ship 'Christy' (No 1) (2013) 1 AAD 2031. The arrest of the ship is being challenged in the objection and all the necessary material is before the Court to examine the dispute.

The issuance of a ship arrest warrant is at the discretion of the Court. Rules 50-54 of the Order refer to what must be contained in affidavits supporting such applications. Rule 50 governs the right to apply for the issuance of an arrest warrant in actions in rem submitted to the Court. Rule 51 provides that the affidavit must state the nature of the action and the assistance of the Court that is required. Rule 52(b) provides as follows:

The affidavit shall also state ... [i]n an action for necessaries, or for building, equipping, or repairing any ship, the national character 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.

In this case, the plaintiff's affidavit does not include the elements mentioned in r 52(b). Furthermore, there is a substantial difference between the plaintiff and the defendants in terms of ownership of the vessel and its country of registration. The plaintiff claims that the vessel is registered in Cyprus and for this purpose it attaches a certificate of temporary registration which was valid from June-December 2015, where Alassa Ltd is represented as the owning company. The defendants claim that the vessel flies the Dutch flag and for this purpose attach a package of documents, and certificates of registration of the vessel in Cyprus and the Netherlands, where the owner of the vessel is Nireas Offshore Industry Services Ltd.

Rule 54 gives the Court discretion to issue an arrest warrant, even though the affidavit does not include all the details mentioned above.

The problem that arises in this case is that a certificate of temporary registration was attached to the affidavit, but the objection gives different details. No additional testimony was given by the plaintiff to clarify the matter, except a written submission by the plaintiff's lawyers, alleging that they did not know, or could not know, who the owners of the boat were and that, even if the position of the defendants is correct, this is a bona fide mistake on a matter that does not touch upon the substance of the case.

The issuance of a ship arrest warrant presupposes the existence of an action in rem. Section 3(2) of the Act, which is applied in Cyprus pursuant to the provisions of art 29(2)(a) of the Law on Courts 1960 (Law 14/60), provides that the in rem jurisdiction of a Maritime Court may be invoked in the cases referred to in s 1(1)(a)-(c) and (s) of the Act. According to s 3(4) of the Act applicable in this case, if the claim falls under s 1(1)(d)-(r) of the Act and originates in relation to a ship, the in rem jurisdiction of the Maritime Court against the ship can also be invoked where the person who would be responsible to satisfy the claim in an action in personam was, at the time the cause of action arose, the shipowner or charterer of the ship or owned or controlled it, and at the time the action is brought, the ship was substantially all owned by that same person. Clarity is therefore required as to the ownership of the vessel both at the time the action was brought and at the time the enforceable right arose, as it relates to a legal condition.

The ambiguity in the plaintiff's affidavit regarding the ownership of the vessel does not allow the Court to conclude whether in this case there is an action in rem, a factor necessary for the arrest of a ship.