Alexander G Tsavliris & Sons Maritime Co v Keppel Corp Ltd

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 06 April 1995
• Neutral Citation: [1995] SGCA 36
• Date: 06 April 1995
• Subject Matter: Arbitration,s 3(1)(i)High Court (Admiralty Jurisdiction) Act (Cap 123),Words and Phrases,Enforcement,Claim for expenses incurred in bringing in rem action to enforce arbitration award,Whether enforcement of arbitration award within admiralty jurisdiction of court,Admiralty and Shipping,Enforcing arbitration award in court of competent jurisdiction based on agreement to submit disputes to arbitration,Salvage,'In the nature of salvage',s 3(1)(i) High Court (Admiralty Jurisdiction) Act (Cap 123),Whether claim within admiralty jurisdiction of court,Action in rem,Claim referred to arbitrator,Admiralty jurisdiction and arrest,Award,Owners of vessel failed to pay in satisfaction of award
• Docket Number: Civil Appeal No 46 of 1994
• Published date: 19 September 2003
• Defendant Counsel: Muthu Arusu and Philip Tay (Drew & Napier)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Lee Seok Hian (Haridass Ho & Pnrs)

Cur Adv Vult

This appeal raises a short but important question of law. It is whether a salvage award made in arbitration proceedings may be enforced by an admiralty action in rem against the salvaged ship or a `sister ship` by invoking the court`s admiralty in rem jurisdiction under s 3(1)(i) of the High Court (Admiralty Jurisdiction) Act (`the Act`) and if so whether the costs of the arbitration proceedings in securing the salvage award may also be claimed as part of the salvage award.

The appellant to whom we shall refer hereafter as `the salvors` rendered certain salvage services to the vessel the `Atlas Pride`, her bunkers and cargo under a Lloyd`s standard form of salvage agreement approved and published by the Council of Lloyd`s and known as `No Cure - No Pay` (`the agreement`) dated 30 August 1991. The `Atlas Pride` a bulk oil or ore carrier of 112,306 tons gross had suffered a casualty in heavy weather off the coast of South Africa on 29 August 1991 and was partially disabled. The salvage services being successfully performed the salvage remuneration payable to the salvors was the subject of arbitration proceedings in London under the terms of the agreement as provided for. The arbitrator published his award on 22 April 1993 under which he awarded a sum of £3,802,000 to the salvors with interest at 13.85% pa from 4 December 1991 until 29 April 1993 and interest at 8% pa from 2 June 1993 until payment (by virtue of cl 10(ii) of the agreement). Further the salvors were awarded their costs of the arbitration, the fees and the costs charged by the Council of Lloyd`s for their services and the costs of the arbitrator amounting in total to £196,812.97. The sums awarded were to be apportioned among the parties whose properties were salved in proportion to the salved values of the properties salved as fixed by the arbitrator. Accordingly the amounts of the award payable by the `Atlas Pride` and her bunkers were:

(1) £532,609.78 and £8,205.43 respectively;

(2) interest for the period 4 December 1991 to 29 April 1993 at 13.85% pa on the two sums under (1) above amounting to £105,224.50 and interest at 8% pa from 2 June 1993 until payment on the two sums under (1) above;

(3) £27,995.65 being the apportioned costs of the arbitration, the fees and costs charged by the Council of Lloyd`s and the costs of the arbitrator.

No payment in satisfaction of the award was made.

To enforce payment of the amounts of the award payable by the `Atlas Pride` and her bunkers in the sums stated above the salvors commenced proceedings by Admiralty in Rem Suit No 645 of 1992 against the owners of the `Atlas Pride` invoking s 3(1)(i) of the Act. The `Atlas Pride` was then already under admiralty arrest in Singapore in Admiralty in Rem Suit No 455 of 1992. In addition to the amounts of the award as stated above, the salvors also claimed a sum of £7,300.41 which they claimed they had incurred by way of costs and expenses in bringing Admiralty in Rem Suit No 645 of 1992 against the owners of the `Atlas Pride`. The salvors also claimed interest on the said sums of £27,995.65 and £7,300.41 at 8% pa from judgment until payment.

The respondent to whom we will refer as Keppel had carried out repairs to the `Atlas Pride` and had her still at its repair yard in Singapore when she was arrested by the plaintiffs in Admiralty in Rem Suit No 455 of 1992. Accordingly Keppel claimed a possessory lien over the `Atlas Pride`. In fact Keppel had a real and substantial claim on the `Atlas Pride` ranking in priority immediately after the salvor`s claim and in priority over the numerous other claimants against the `Atlas Pride` (see ). It is not surprising therefore that Keppel got leave to and intervened in Admiralty in Rem Suit No 645 of 1992 to contest the salvor`s claim against the `Atlas Pride`.

The owners of the `Atlas Pride` did not enter an appearance to Admiralty in Rem Suit No 645 of 1992 and when the salvors moved the court for judgment in default of appearance the contest was between the salvors and Keppel. Kan Ting Chiu J gave judgment in favour of the salvors for the two sums claimed under (1) above as being the proportion of the award payable by the owners of the `Atlas Pride` and interest thereon as claimed but he declined to give judgment for the £27,995.65 being the proportion of the costs of the arbitration, the fees and costs charged by the Council of Lloyd`s and the costs of the arbitrator payable by the owners of the `Atlas Pride` or for £7,300.41 which the salvors claimed they had incurred by way of costs and expenses in bringing Admiralty in Rem Suit No 645 of 1992. The former claim was rejected as the learned judge held that they were not claimable in rem and the latter claim was rejected as the learned judge perceived it to be a claim for special damages. In his grounds of decision he said:

I also did not give judgment for the £7,300.41 claimed as costs and expenses of the plaintiffs` (the salvors`) agents in connection with the present action which cannot be claimed as special damages, and should be dealt with as the costs of the action.

The salvors` appeal is in respect of the two items of which they did not get judgment.

In order to answer the questions raised by this appeal it is necessary to consider in wider perspective the question of enforcing arbitration awards generally by invoking the jurisdiction of the court. This question was considered by the English Court of Appeal in . The question arose in this way. A charterparty was made in London for the hire of the plaintiffs` vessel to the defendant who was resident in Paris. A clause in the charterparty provided that disputes arising between the parties would be arbitrated upon in Hamburg. A dispute having arisen...