Admiralty, Shipping and Aviation Law

Citation(2012) 13 SAL Ann Rev 46
Published date01 December 2012
Date01 December 2012
Introduction

2.1 The year 2012 saw one decision handed down by the Court of Appeal of considerable clarificatory importance, and three by the High Court (two of which arose out of the same facts and raised the same issues).

The Bunga Melati 5 [2012] 4 SLR 546

2.2 In The Bunga Melati 5[2011] 4 SLR 1017, the Court of Appeal heard and allowed the appeal from the decision of Belinda Ang Saw Ean J, which was reported in the (2011) 12 SAL Ann Rev 26 at 31–41, paras 2.24–2.61. The Court of Appeal took the opportunity to clarify various principles relating to the invocation and subsequent challenge of the admiralty jurisdiction of the court, following the earlier seminal decision of the same court in The Vasiliy Golovnin[2008] 4 SLR(R) 994 (‘The Vasiliy Golovnin’). This review only touches on the admiralty aspects of the decision and leaves out aspects of the decision that deal with the application to strike out the action (save as is necessary to explain the procedural background).

Facts and proceedings below

2.3 The appellant in The Bunga Melati 5[2012] 4 SLR 546 (‘The Bunga Melati 5’) served an admiralty writ in rem on the respondent's vessel, but did not arrest her. The crux of the appellant's claim was that it had entered into a contractual relationship with the respondent, under which the appellant would supply bunkers to a number of the respondent's vessels. Alternatively, the appellant contended that the respondent had been unjustly enriched by its use of the bunkers supplied by the appellant.

2.4 The respondent, however, alleged that the only contractual relationship it had in relation to the said bunkers was with Market Asia Link Sdn Bhd (‘MAL’): see The Bunga Melati 5 at [8]. In response, the appellant's position was that MAL had at all material times acted as the respondent's broker or agent; the respondent was therefore contractually liable to the appellant for the bunkers supplied: see The Bunga Melati 5 at [5] and [13]. The appellant hinged its contractual claim solely on the doctrine of agency by estoppel, namely, that it had relied on the respondent's representations that MAL was clothed with ostensible authority to contract with the appellant on the respondent's behalf.

2.5 Prior to commencing proceedings in Singapore, the appellant had commenced proceedings against the respondent in the United States District Court for the Central District of California (‘the California District Court’) to obtain an attachment order against the respondent's assets in California (the popular but now defunct Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure (‘the Rule B Attachment Order’)). Whilst the Rule B Attachment Order itself was vacated, the appellant's action was not. The appellant later withdrew its action in California: see Bunga Melati 5 at [11] and [13].

2.6 After the service of the writ on the respondent's vessel, the respondent applied to set aside and/or strike out the writ on the ground that the appellant's claim was plainly unsustainable on the merits: see The Bunga Melati 5 at [20]. The respondent also alleged that it was not ‘the person who would be liable on the claim in an action in personam’ under s 4(4)(b) of the High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed) (‘the Act’). As a further arrow to its quiver, the respondent also relied on the doctrine of issue estoppel with respect to the appellant's previous proceedings in California.

Invoking the admiralty jurisdiction of the High Court

2.7 The court took the opportunity to clarify an issue that had been raised in the earlier Court of Appeal decision of The Vasiliy Golovnin. The court clarified that when a plaintiff seeks to invoke the admiralty jurisdiction of the court, there is no requirement to show a good arguable case on the merits: see The Bunga Melati 5 at [94] and [96]. Rather, it is only when the plaintiff's claim is challenged, and a defendant applies to strike out the plaintiff's action under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘RoC’) or the inherent jurisdiction of the court that the plaintiff will then have to show a good arguable case on the merits: see The Bunga Melati 5 at [96] and [104]. In doing so, the court thereby affirmed the decision of Ang J on this point: see [2011] 4 SLR 1017 at [142] and [157].

2.8 The court also took the opportunity to clarify the five steps involved in invoking the admiralty jurisdiction of the court under s 4(4) of the Act, namely:

(a) showing that the plaintiff has a claim under ss 3(1)(d) to 3(1)(q) of the Act (‘Step 1’);

(b) showing that the claim arises in connection with a ship (‘Step 2’);

(c) identifying the person who would be (as opposed to ‘is’) liable on the claim in an action in personam (‘Step 3’);

(d) showing that the relevant person was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship (‘Step 4’); and

(e) showing that the relevant person was, at the time when the action was brought: (i) the beneficial owner of the offending ship as respects all the shares in it or the charterer of that ship under a demise charter; or (ii) the beneficial owner of the sister ship as respects all the shares in it (‘Step 5’).

2.9 In respect of the above-mentioned five steps, the court also endorsed (at [107]) Ang J's lexicon of:

  1. (a) a ‘jurisdictional fact’;

  2. (b) a ‘jurisdictional question of law’; and

  3. (c) a ‘non-jurisdictional matter of fact or law’.

2.10 The court held that, in so far as Step 1 was concerned, the plaintiff need only prove an arguable case (which is not meaningfully different from ‘good arguable case’, the expression preferred by Ang J: see The Bunga Melati 5 at [111]) with respect to jurisdictional questions of law. However, the court agreed (at [112]) with Ang J's analysis as to the standards of proof required under the other steps, namely:

(a) Step 1: prove, on the balance of probabilities, that the jurisdictional facts under the limb the plaintiff is relying on in ss 3(1)(d) to 3(1)(q) exist, and show (this being in the nature of a legal question) an arguable case that its claim is of the type or nature required by the relevant statutory provision;

(b) Step 2: prove, on the balance of probabilities, that the claim arises in connection with a ship;

(c) Step 3: identify, without having to show in argument, the person who would be liable on the claim in an action in personam;

(d) Step 4: prove, on the balance of probabilities, that the relevant person was, when the cause of action arose, the owner or charterer of, or in possession or in...

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