Charalambos Petsakos and Others v. The Owners and/or Demise Charterers of the Ship or Vessel "Gagich" also known as "Helsinki" and Another

HCAJ000361/1995

-----------------

-----------------

Coram: The Hon. Mr. Justice Waung in, Chambers

Dates of Hearing: 15 July, 17 and 18 October 1996

Date of Handing Down of Judgment: 7 January 1997

-----------------

JUDGMENT

-----------------

1. This application for summary judgment by the former Master and Crew of the ship "Gagich" (hereinafter referred to as the "Vessel") is an unfortunate aftermath of the collapse of the Greek Karagiorgis shipowning group, known as Silver Carriers group of companies which for convenience. I will refer to hereinafter as the "Silver Carriers Group". The Defendants herein were the owners of the Vessel and were part of the Silver Carriers Group. The fleet in the Silver Carrier Group was financed by the Berliner Bank A.G. ("the Bank"), which had intervened in this Action and became effectively the defendant in this Action to resist the application for Summary Judgment by the 7 Plaintiffs against the Vessel. The Bank is resisting the claims of the Plaintiffs because if the crew's claims (which enjoy higher priority) could be wholly or partly resisted by the Bank, the Bank would be able to recover more from the proceeds of the sale of the Vessel which is inadequate to meet the whole of the claim of the Bank as mortgagee of the Vessel.

2. The claims of the 7 Plaintiffs amount in total to Greek Drachmas 27,329,003 which is just under HK$1 million, made up as follows:-

The simple claims of the 7 Plaintiffs are that they rendered their services as Master and Crew of the Vessel for various periods between 1994 to mid 1995 and they were not paid for such services and that therefore each one claims the amount set out in the Statement of Claim. The Defendants Owners did not chose to defend the claims of the Plaintiffs and the Court would have given judgment in default of acknowledgment of service but for the intervention of the Bank. The contest between the Plaintiffs and the Bank was however unusual in that the Bank did not really have any substantial positive evidence of defence as one would normally expect in a crew's claim coming from the only reliable source with credible evidence namely from the Defendants or the employees or servants of the Defendants. This did not happen. What the Bank by its assertions sought to do. was to persuade the Court that, notwithstanding the Bank's lack of positive credible evidence, the Bank nevertheless should be given unconditional leave to defend because it had shown to the Court that it has some genuine defence to the claims of the Plaintiffs.

3. The general picture that emerged from the evidence and the presentations of the parties is that Silver Carriers Group was a Greek shipowning group with a substantial fleet of ships and that although many ships such as the Vessel was registered in Malta, the effective management control was in Greece and that the Greek Office of the Silver Carriers Group controlled the crewing of the ships in the fleet. The Silver Carriers Group got into financial difficulties in early 1995 and it would seem that from the end of 1994 the Bank by way of its shipping consultant Eurofin was closely monitoring the financial affairs of the Silver Carriers Group and that from February 1995 onwards, the Silver Carriers Group was no longer able to pay the bills, in particular the crew wages and that the Bank was paying out directly to the crew of ships in the fleet. The final collapse of the Silver Carriers Group came in or around mid 1995 and eventually a number of the ships were sent by the directions of the Bank to Hong Kong so that judicial sales of the ships could take place.

4. For the purpose of this Judgment. I need only briefly state the story of the Vessel starting from its voyage from Dubai probably in early September 1994 when the master of the Vessel was apparently Captain Datsoulis. From the Middle East, the Vessel apparently then went to Bombay in mid September 1994 where a large number of Filipino crew were taken on. From India the Vessel then went to Spain most probably by way of Durban. South Africa and it was in Spain in mid-December 1994 when the 1st Plaintiff. Petsakos ("the Master") joined the Vessel as Master. The Vessel then sailed from Spain to Ukraine, arriving in Sebastopol on 6th January 1995. The Vessel spent a prolonged stay in Sebastopol where it was drydocked and extensive repairs were done to the Vessel. The Vessel was in Sebastopol until 24th May 1995 and it was during this period from early January 1995 to May 1995 when the Vessel was in Sebastopol that many of the Plaintiffs joined the Vessel and performed the services which are the subject of the disputed claims in this Action. The Vessel left Ukraine at the end of May or early June 1995 and then moved on to the Suez Canal entering the Suez Canal on the 9th of June 1995. On the 11th of June 1995, the Vessel sailed for the Far East and eventually it came to Hong Kong by way of Manila. The Vessel was arrested in Hong Kong by the Bank and subsequently was sold by Order of this Court. When the Vessel arrived in Hong Kong, most of the crew were Russian who were subsequently paid off by the Bank under subrogation arrangements.

5. What emerged clearly during the hearing was that the Bank sought to raise in its various ways what might be categorised generally as four issues, namely that:-

6. Before I consider in detail the claim of each Plaintiff and the alleged defence raised against each claim, an overall view of the different categories of evidence relied on by the Plaintiffs in support of their claims for summary judgment would be of assistance in understanding and analysing the competing cases presented to the Court by the parties.

7. The following essential categories of evidence in support of the claims of the Plaintiffs were put before the Court:-

The nature and the quality of the evidence put before the Court by the Bank to resist the summary judgment are not impressive, consisting basically of evidence from the professionals employed by the Bank and comprising of assertions and inferences. In respect of each Plaintiff, a scrutiny of the nature of the Bank's evidence compared to the nature of the evidence from the Plaintiffs will assist the Court in deciding whether a bona fide defence has been raised by the Bank in relation to the claim of that Plaintiff.

CLAIM OF THE MASTER PETSAKOS - FIRST PLAINTIFF

8. The detail of the wages claim of the Master appears in the Payroll of the Vessel from 13th December 1994 to 31st March 1995 ("1st 1995 Payroll") and in the Payroll of the Vessel from 1st of April 1995 to 2nd June 1995 ("2nd 1995 Payroll"). The monthly pay of the Master under the 1st 1995 Payroll and the 2nd 1995 Payroll is GRD 1,300,000 as shown in the Master's Employment Agreement. Therefore for the period up to the end of March 1995, the 1st 1995 Payroll shows the total earnings of the Master at GRD 5,058,248 and the amount of money to be paid to the Master at GRD 5,006,5365 after taking into account the cash advance to the Master during that period of GRD 51,712. The 2nd 1995 Payroll shows that total earnings up to 27th May 1995 for the Master has gone up to GRD 7,667,001 and the total Credit balance or money to be paid to the Master as of 2nd June 1995 to be GRD 7,626,531 taking into account the further advance of GRD 40,470. The 2nd 1995 Payroll shows clearly that the aforesaid credit amount of GRD 7,626,531 was to be paid to the Master by the office, namely the Piraeus Office of the Silver Carriers Group. The above credit amount of GRD 7,626,531 due to the Master is identical to the amount shown in the Wages Account of the Master dated 27th May 1995 signed by the Master at Illychevsk.

9. The Bank resisted the claim for Summary Judgment by the Master of the aforesaid credit amount of GRD 7,626,531 on the ground inter alia that the Master had been paid this sum. In so far as the defence may be based on the repeated assertions of the Bank that the Wages Account is the evidence of receipt of payment of wages. this defence does not even begin to run in the case of the Master because the relevant receipt clause in the Wages Account of the Master had been crossed out and it is clear from the Wages Account of the Master that the credit amount of GRD 7,626,531 remained a credit amount due by the Vessel to the Master.

10. Secondly, it seemed to me important to bear in mind in respect of the assertion of the Bank that the Master and Crew had been paid that this assertion begs two questions, who made the alleged wages payments and where were the alleged payments made. It was clear from the Bank's own evidence that the Silver Carriers Group was in no position in May or June 1995 to make any payment to crew and that the Bank had to make payment to crew of the fleet since February 1995. The Bank did not say that it had paid the Master or any of the Plaintiffs and it seems to me ludicrous for the Bank to suggest that the Plaintiffs had been paid when it could not suggest let alone prove who had paid them. But the unreality of the defence of the Bank that payment had been made went further. because the nature of the defence would involve the Master and the Plaintiffs all being paid in Ukraine at the time when they signed the Wages Account. When a ship is in a foreign port, away from its home base and away from the home base of the crew, there are only basically two ways that members of the crew could be paid, namely either by the captain of the ship from cash which he carried on the ship or by foreign agents of the ship at the foreign port. In the experience of this Admiralty Court, a seaman of vessels ...(illegible) generally speaking most of his pay at his home base by means of allotment to his family and this is specially so when the home base and the home port are the same as in this case. Large cash payments to crew in a foreign port would be somewhat exceptional, both for reasons of security to the crew as well as for reasons of inconvenience to the shipowning company or the manager. It would therefore be a highly excepnonal situation for the captain or crew of a ship to be paid some six months pay at a foreign port in cash. In this case, there was simply no evidence whatsoever that the Vessel was carrying a large amount of cash to pay the crew or that there was any Ukrainian port agent at Sebastopol which had made such large cash payments to the Greek crew of the Vessel. I therefore reject without any hesitation the defence of the Bank that the Master had been paid his 6 months earnings and that therefore nothing was owing to the Master. This is a defence wholly without merit.

11. It was next suggested by the Bank that somehow the Articles of the Vessel had been tampered and that therefore there is doubt as to the Master's claim. The Articles in question was clearly the Articles opened by the previous captain Datsoulis because it was opened at a time long before the Master joined the Vessel and it bore the signature of Captain Datsoulis at pages 224 and 228. The name of Petsakos as Master appeared in two places in the Articles and from an examination of the original Articles, it is clear that the original name of the captain of the ship had been erased and the name of Petsakos had been written in. But the only significance of the aforesaid so called tampering is that the Court should not place any reliance on the Articles of the Vessel. The Plaintiffs in face place no reliance on the Articles. What I cannot do is to draw an inference adverse to the Master as though the Master had been proved to have tampered with that document. There is no evidence he did and in all probability he did not because he had nothing to gain by doing so and it was simply too clumsy a piece of alterations for the Master to indulge in. The Master in fact gave a perfectly reasonable explanation in relation to this. He said he opened his own Articles when he joined the Vessel as Master and that when he left the Vessel he left the Articles opened by him on board the Vessel. The Bank said that the subsequent crew had not seen this Articles of the Petsakos but there is no Affidavit from Captain Kanzouros who took over the command of the Vessel from the 1st Plaintiff on this aspect and it is also relevant to note that Captain Kanzouros had opened his own Articles (which was not exhibited) when he took over from Petsakos. There is nothing in the Bank's point of tampering of Articles which allegation serves only to confuse and not to raise any bona fide defence.

12. If the point of the Bank is that the Master was never a master of the Vessel and the tampering of the Articles is in support of that contention then I have no doubt that the totality of the evidence (including the so called February Crew List relied on by the Bank) shows quite clearly that the 1st Plaintiff indeed served as Captain of the Vessel during the relevant time in Ukraine. As Mr. Ng for the Plaintiffs quite rightly asked in the course of the hearing, if the Master was not the Captain of the Vessel then who served as Captain during the relevant time and what is the evidence in support of that contention. At page 265 and 266 are the letters dated 4th April 1995 and 3rd June 1995 from the Master to the Silver Carriers Group reporting to the Defendants Owners and enclosing all the general documents which a Captain of a ship is normally expected to furnish to his Owners. It is not suggested by the Bank that these two documents or their enclosures are forgeries and it seems to me to be wholly irresponsible for anyone to suggest that the Master was never the master of the Vessel during the relevant period.

13. The final red herring raised by the Bank in resistance to the Master's claim is that the quantum of his claim was too high as being calculated to 27th May 1995 when his seaman's book showed that he left Ukraine on 24th May 1995. There are undoubtedly chops on pages 129 and 130 of the Master's seaman book with dates of 22nd, 24th and 26th May 1995 but what significance can be attached to these chops are matters which can only be fully proved with factual evidence from the Russian and/or Ukrainian immigration. There is no such evidence and I do not accept the inference drawn by the Bank on the chops in the Master's seaman's book. The Bank's own evidence is that the Vessel left Sebastopol on 24th May and arrived at Illychevsk to load cargo on 26th May 1995 and it was at Illychevsk that the new captain Kantzouros ...(illegible) the Vessel (see paragraph 10 of Affidavit of Zolotas of 24th April 1996). It seems to be perfectly reasonable from the evidence for me to conclude that the Master sailed the Vessel as captain from Sebastopol to Illychevsk and that it was only on the 27th May 1995 that he handed the command of the Vessel to the new captain. I see no substance in the Bank's point that the claim of the Master was for three days too much.

14. My conclusion on the claim of the Master is that no bona fide defence to the claim of the Master has been raised by the Bank and that the Master should be given summary judgment in the amount claimed, namely GRD 7,626,531.

GENERAL REMARKS ON THE CLAIMS OF THE CREW

15. Before proceeding with consideration of the claims of the other 6 Plaintiffs, it seems worthwhile to emphasise what is obvious, namely that in the general consideration of whether valid claims of crew members of a ship had been made, it is the captain of a ship who is the best person and in the best position to know who were members of his crew, what period of time they had served as crew, how much had been earned by each member of the crew and whether when he was captain each member of the crew had been paid his earnings, and if so when and in what manner. In terms of the quality of evidence. generally speaking the Court ought to find such evidence from the captain the most persuasive and credible on matters of crew's claims for unpaid wages and in the absence of overwhelming contrary reliable evidence, the Court will have no justification to reject what seem to be genuine documents or what is perfectly reasonable evidence from the captain of the ship.

16. It seems to me that this is not only a legitimate approach to crew's claims but that it is a prudent course for an Admiralty Court to take. Proper respect for the authority and veracity of the captain of a ship should generally guide an Admiralty Court not to cast doubt on the evidence of the captain or documents produced by him while he was captain unless there are overwhelming contemporaneous reliable written documents which strongly suggest that the captain's evidence or his documents should not be wholly accepted.

CLAIM OF THE CHIEF ENGINEER, KALIS - SECOND PLAINTIFF

17. The detail of the wages claim of Kalis, the 2nd Plaintiff ("the Chief Engineer") appears in the 1st 1995 Payroll and in the 2nd 1995 Payroll. The monthly pay of the Chief Engineer under the 1st 1995 Payroll and the 2nd 1995 Payroll is GRD 1,280,000 as shown in the Chief Engineer's Employment Agreement dated 3rd January 1995. As in the case of the Master, the 1st 1995 Payroll together with the 2nd 1995 Payroll show clearly that the amount of money owing and to be paid to the Chief Engineer as of 2nd June 1995 was GRD 6,397,699, the same amount as shown in the Wages Account of the Chief Engineer dated 2nd June 1995 signed by the Master and the Chief Engineer.

18. It is of course true that in the Wages Account of the Chief Engineer, the receipt clause was not crossed out but in my judgment, for reasons stated earlier this does not in any way mean that the Chief Engineer had been paid his outstanding wages of GRD 6,397,699. On the 2nd of June 1995, neither the Master nor the new captain had the money to pay the Chief Engineer in Ukraine and as I said earlier, the reality was that the Silver Carriers Group did not have the money to pay any crew member in late May or early June 1995. So apart from the non-crossing out of the receipt clause in the Wages Account of the Chief Engineer, there was simply no evidence that the Chief Engineer had been paid. It seems to me that Mr. Ng is correct when he analyzed the Wages Account as being in the true nature of settled account, namely agreed account between parties of what is owing by one party to the other party. By reason of the nature of the crew joining and leaving ships at various times and having earned wages subject to deductions for drawings from the ships, it is not only sensible but an efficient system for a captain to ensure before a crew member departs from his ship that the seaman and the captain on behalf of the ship should both sign the Wages Account as a form of settled account. This was what the Master and his successor captain did in relation to all 7 Plaintiffs. This practice has the advantage of avoiding any possible subsequent dispute of the proper quantum owing to the crew member and of leaving outstanding only the matter of proper payment for the amount owing. In the case of the Silver Carriers Group, payment would normally be done in Greece at the home port when the Greek seamen return to Piraeus. Finally on this question of whether the Chief Engineer had been paid, it seems to me perverse to suggest that the Master had not been paid because he had crossed out the receipt clause in the Master's Wages Account but that the Chief Engineer had been paid merely because the similar Wages Account more or less created and signed at about the same time, did not bear the similar crossing out of the receipt clause. My conclusion on the totality of the evidence is that neither the Silver Carriers Group nor the Bank had paid any of the 7 Plaintiffs in respect of the present claims in either late May or early June 1995 or indeed at any time.

19. It was also suggested by the Bank that the Kalis claim cannot be properly established because Kalis's name was not on the Crew's List relied on by the Bank and there is a doubt as to whether Kalis was in Ukraine at all. Again I find such suggestions to be without merit. It is of course true that Kalis was not on the February 1955 Crew's List sent by Captain Pateras to Eurofin. But as pointed out in the Affidavit of Kalogerogiannis at paragraph 10. that Crew List (which was bare of any relevant particulars which can be found in the two Crew's Lists of the Master) was the one applicable to the Vessel when it left Spain in December 1994. Kalis joined the Vessel at Sebastopol in early January 1995 and this explained why his name did not appear as Chief Engineer on the Crew List of Pateras. As for the contention that Kalis was not in Ukraine at the relevant time because his visa for Ukraine showed the period of the visa as only from 5th January to 15th January 1995. again it seems to me that the Bank was trying to make too much of what is on page 132 while ignoring what are on page 133. The fax dated 28th February 1995 from Kalis in Sebastopol to Silver Carriers Group in Greece on the problems relating to repairs demonstrated clearly that Kalis was the Engineer of the Vessel who was deeply involved with the repairs of the Vessel at Sebastopol and that he was definitely in Sebastopol in late February 1995. It is to be noted that even Servidad and Tolentino in their Affidavits never asserted anywhere that Kalis was not in Sebastopol from beginning of January to end of May 1995. I have no doubt that Kalis was in Sebastopol during the relevant period from early January 1995 to end of May 1995 and that the 2nd 1995 Payroll correctly sets out his earnings.

20. Finally, the Bank asserted that Kalis was not the Chief Engineer but was only an attending engineer or superintendent engineer. In this respect the 1st 1995 Payroll is instructive as it shows that the Vessel was carrying another Chief Engineer. Anagnostov for the period from 1st January to 12th January 1995. So there was a short overlap in January when for some 10 days the Vessel was being served by two Chief Engineers, but there is nothing particularly alarming about this. Also the 2nd 1995 Payroll shows another overlap in May when the Vessel was being served by two Chief Engineers, namely Kalis and one Novik. What is however important to bear in mind is why Kalis was sent out to Sebastopol by the Silver Carriers Group and what was supposed to be happening to the Vessel in Sebastopol. Necessity for repairs was the reason why the Vessel was in Sebastopol for so long from early January until the end of May and when major repairs are apparently being done to the engines and machinery, it goes without saying that for the Greek Owners it was essential to have their own trusted Greek Chief Engineer there to ensure that the right repairs were done and on acceptable terms. Whether Kalis actually lived on board the Vessel or in a hotel seems to me irrelevant because if his main function was as an engineer for the Vessel then his claim should be recognised. His Crew Agreement and the two Crew Lists of the Master and the 1st and 2nd 1995 Payrolls all show Kalis as the Chief Engineer and for the 5 months when the Vessel was in Sebastopol. Kalis was effectively the Chief Engineer of the Vessel. In the circumstances, the contention that Kalis was not the Chief Engineer does not assist the Bank in establishing a valid defence against the claim of Kalis.

21. Accordingly, I also find in favour of the 2nd Plaintiff in the amount claimed by him in this Action. There shall be summary judgment for the 2nd Plaintiff in the sum of GRD 6,397,699.

...(illegible) CLAIM OF THE THIRD ENGINEER. MOUZAKIS - FOURTH PLAINTIFF

22. There was no dispute by the Bank that Kouznos, the Third Plaintiff ("the 2nd Engineer") and Mouzakis, the Fourth Plaintiff ("the 3rd Engineer") were on the Vessel serving as 2nd and 3rd Engineer as their names appear in both the so called tampered Articles and in the Pateras Crew List. The feeble defences raised by the Bank in relation to the claims of the 2nd and 3rd Engineer are that:-

23. So far as the first defence is concerned, for reasons which I had stated earlier. I do not accept that a genuine issue had been raised by the Bank that the 2nd and 3rd Engineers had been paid. The Wages Accounts of these two Engineers do not assist the Bank in showing that the Engineers had been paid. It is pertinent to note in relation to these two Engineers that they remained on board the Vessel after the Master had handed over the command to Captain Kantzouros and that if these two Engineers upon their discharge from the Vessel on the 10th of June 1995 were paid all the outstanding wages, then the evidence of such payment should come from Captain Kantzouros and one would also expect to see in evidence the new Articles of Captain Kantzouros showing the signed release of the these two Engineers of having received all their earnings. But there was no such evidence and for me there is no serious issue that these two Plaintiffs had been paid.

24. The second defence can be disposed of quickly. Miss Betsi was obviously from the accounts department of the Silver Carriers Group but even if she might be of junior rank (which I do not necessarily accept), it does not follow that her evidence is not perfectly reasonable and credible. I accept her evidence that the 2nd and 3rd Engineers had not been paid which makes good commercial sense and so far as her evidence as to the respective amounts owing to each Engineer, her evidence is supported by the Wages Accounts which the new Captain Kantzouros had seen fit to sign as the correct agreed accounts.

25. As to the final contention that there was failure to give full breakdowns, it seems to me first that adequate details had been given and secondly that having regard to the Wages Accounts signed by the Defendants' new Captain Kantzouros, it is not the function of the court to encourage the agreed accounts to be reopened by some third party who had no knowledge of the underlying affairs but which was seeking by the process of speculation to discover whether there might be some potential defence available to the Bank.

26. My conclusion is therefore that the Bank had failed to show a bona fide defence in relation to the claims of the 3rd and 4th Plaintiff and I give summary judgment in favour of the 3rd and 4th Plaintiff in the respective sum of GRD 1,155,863 and GRD 1,375,459.

CLAIM OF THE ELECTRICIAN, KOULEPIS - FIFTH PLAINTIFF

27. The Electrician Koulepis served on the Vessel from 14th January 1995 until 21st May 1995 namely during the period when the Master was in command and when the Vessel was in Sebastopol. The quantum of his outstanding earnings at GRD 3,319,929 is shown clearly in the 2nd 1995. Payroll and in the Wages Account. A number of alleged defences were raised by the Bank to resist summary judgment by the 5th Plaintiff and I find these alleged defences are as much devoid of merit as all other defences which I have rejected.

28. First, the defence that Koulepis had been paid is rejected for the same reasons with which I had rejected the similar defences raised in relation to other Plaintiffs.

29. Second, the defence that Koulepis name did not appear in the Pateras Crew List or in the tampered Articles does not create any valid defence for the same reasons which I had given earlier. The Master's 2 Crew Lists at pages 262-3 clearly show Koulepis as the Electrician and further the 1st 1995 Payroll ...(illegible) Koulepis as having joined the Vessel on 15th January 1995.

30. Thirdly, the assertion in Tolentino Affidavit that Koulepis was not the electrician on board the Vessel, because the Yugoslav electrician was replaced by another Greek electrician in April 1995 whose name was not Koulepis, must be examined against the written evidence of the Master's said 2 Crew Lists and the 1st and 2nd 1995 Payrolls which showed that:-

What had to be borne in mind is that the Vessel at Sebastopol was undergoing major and expensive repairs and that therefore the requirement for technical crew such as electricians was high and that for the Greek Owners it would be very important to have Greek electricians sent to the Vessel rather than rely on foreign electrician such as Yugoslav or Ukrainian. For the critical period from March to May 1995 when the Vessel was in drydock and therefore receiving expensive repairs, it seems to me according to the Master's 2 Crew Lists and the Master's two 1995 Payrolls that the Vessel was well served by two Greek electricians, namely Koulepis and Grypeos. It is relevant to note that Tolentino did not anywhere say that Koulepis was not known to him or he was never in Sebastopol during the months from January to May 1995. Tolentino's memory must have been mistaken compared to the contemporaneous documents of the Master.

31. The evidence reveals that Zoran, the Yugoslav electrician left in early February 1995 and that the Ukrainian electrician did not join the Vessel until late in May 1995 when repairs were close to being finished. This being the case how could the case of the Bank, that Koulepis and Grypeos were never in Ukraine during the relevant period or served as electricians of the Vessel, be accepted by the Court. It seems to me simply absurd to suggest that there were no electricians of the Vessel during the most important February to May months when repairs were carried out. I have no doubt that on the totality of the evidence the case of the Plaintiffs on the two Greek electricians. Koulepis and Grypeos is correct. There is no credible issue raised by the Bank against the claim of Koulepis and there shall be summary judgment for the 5th Plaintiff Koulepis in the sum of GRD 3,319,929.

CLAIM OF THE ELECTRICIAN, GRYPEOS - SIXTH PLAINTIFF

32. The claim of the Electrician Grypeos had initially caused me some concert because the amount of the claim was relatively large for someone of his position. He serve the Vessel for the same period as his fellow Greek electrician Koulepis but his total claim was for GRD 6,966,529 as can be seen in the 2nd 1995 Payroll and in his Wages Account. Has the Bank in this case made out a credible defence in relation to the claim of Grypeos.

33. I have no doubt that in relation to the defences that payment already made, ...(illegible) name not in old Articles or in Pateras Crew List, he was not the electrician of the Vessel ...(illegible) he was not in Ukraine at the relevant time, there is no substance in these defences. The Ukraine visa and stamp in the passport of Grypeos showed clearly that he was in Ukraine the relevant time and this fact only demonstrated the lack of credibility of what is said in the Affidavit of Zolotas that Grypeos never visited Sebastopol. No court in these circumstance can put much faith in the assertions of Zolotas.

34. For reasons stated earlier I have no problem whatsoever in accepting the case the Plaintiffs that there were from January to May 1995 two Greek electricians for the Vessel. My only reservation was to the large overtime of Grypeos which accounted for the lar ...(illegible) quantum claimed by him. But the overtime sheets of Grypeos at pages 268-274 and ...(illegible) explanation given by Kalogerogiannis (paragraph 5) had removed my lurking doubts and I am ...(illegible) summary judgment should be given in favour of Grypeos, the ...(illegible) 6th Plaintiff in the sum ...(illegible) of GRD ...(illegible) ,529.

CLAIM OF THE TECHNICAL ENGINEER LAMPOS - SEVENTH PLAINTIFF

35. Finally in relation to the smallish claim of Lampos as Technical Engineer of the Vessel for the very short period from 12th to 26th May 1995, the claim is well supported by the Employment Agreement, the chops in the passport, the Master's 2nd Crew List, the Master's 2nd 1995 Payroll, the Time Sheet and the Affidavit of Kalogerogiannis. In my judgment no bona fide defence has been raised to the claim of Lampos and accordingly I also award to the 7th Plaintiff summary judgment in the amount claimed of GRD 487,000.

GENERAL REMARKS AND FINAL CONCLUSIONS

36. Finally it seems to me that I should make a general observation on the allegation of fraud pleaded by the Bank and persisted in by the Bank at the hearing of the application for summary judgment. First there is the wholly irresponsible plea of fraud in paragraph 5 of the Bank's Defence that the Plaintiffs participated with the Silver Carriers Group in attempting to defraud the creditors by painting the name of Helsinki to replace the name Gagich. The plea of fraud itself is bad and there is no evidence to support any allegation that the Plaintiffs as employees were doing more than obeying whatever they were ordered to do or that they had any knowledge that what they were required to do was with fraudulent intention of the Silver Carriers Group to defraud creditors. Secondly in relation to the persisted allegation of fraud that the Plaintiffs were making the fraudulent claims in this action when they knew very well that they had already been paid, the evidence filed went nowhere to support such serious allegation of fraud, specially when no evidence had been filed at all by the Bank as to when, where, by whom and with what money each and every Plaintiff had been so paid. Thirdly, having regard to the large amount of what seem to be contemporaneous written documents produced by the Plaintiffs which I had listed at the beginning of my Judgment, it would seem that short of a massive fraud by all the Plaintiffs to fabricate all these documents, the case of the Plaintiffs had been overwhelmingly proved and there is really no room for any allegation of fraud to be made. I regret that the lawyers for the Bank had seen fit to make such an irresponsible plea of fraud and to persist in the allegation at the hearing when all the circumstances pointed to the inappropriateness of continuing with such allegation. This for me is symptomatic and indicative of what had gone wrong in this case. The Bank had seen fit to resist the claims of the Plaintiffs on the flimsiest of evidence and relied on speculation and assertions in the hope that the Bank would gain an advantage or that the Plaintiffs might be thereby forced to accept a smaller sum for their claims. The lawyers for the Bank allowed themselves to collaborate with the Bank in its meritless resistance to the claims of the Plaintiffs. At the end of the day, I have no doubt that the assertions of the Bank are all frivolous and merely "moonshine" and that the Bank has no valid defence to the claims of the Plaintiffs. In the circumstances. I see it as my duty to give summary judgment against the Bank in the sum claimed by each of the Plaintiffs. I make also an order nisi that the Bank must pay the costs of the Plaintiffs in relation to the Order 14 application. The parties would be at liberty to apply to me for further directions and/or orders in the light of this Judgment.

Representation:

Mr. Kenneth Ng instructed by Messrs Clement Ng & Co. for the Plaintiffs.

Miss Mairead Rattigan instructed by Messrs Sinclair Roche & Temperley for the Interveno