Amerco Timbers Pte Ltd v Chatsworth Timber Corporation Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 05 August 1977
• Date: 05 August 1977
• Docket Number: Civil Appeal No 1923 of 1976
• Court: Court of Appeal (Singapore)

Amerco Timbers Pte Ltd

Plaintiff

and

Chatsworth Timber Corp Pte Ltd

Defendant

[1977] SGCA 6

Wee Chong Jin CJ

,

T Kulasekaram J

and

Choor Singh J

Civil Appeal No 1923 of 1976

Court of Appeal

Conflict of Laws–Choice of jurisdiction–Foreign jurisdiction clause–Proceedings commenced in Singapore–Application for stay of proceedings–Factors taken into account in court's exercise of discretion to grant stay

The respondent was the owner of a cargo of Ramin logs comprised in two bills of lading. The barge which shipped the logs was grounded in Indonesia and the cargo was damaged by seawater. The respondent commenced legal proceedings against the first and second defendants, the owner of the barge and owner of sister vessels of the barge respectively, and the third defendant/appellant, who issued the bills of lading. The appellant applied to have the writ set aside or alternatively, for proceedings to be stayed on the ground that the bills of lading provided for all actions to be brought before the court in Djakarta.

In this appeal, the appellant urged the court to grant a stay of proceedings. The following factors were raised by the parties: (a) the respondent contended that it might not be able to see the fruits of its judgment as there were no arrangements for reciprocal enforcement of judgments between Indonesia and Singapore; (b) the respondent argued that the bill of lading was subject to the Hague Rules and Indonesia had not adopted the Hague Rules as part of her domestic law nor dealt with such cases; (c) the appellant contended that it was difficult for the Indonesian master and crew of the vessel to testify in a foreign jurisdiction since they were no longer in the appellant's employ; (d) the appellant submitted that the Djakarta court was more suitable to hear the dispute as Indonesian law applied to the contract; and (e) the respondent argued that it was time barred to commence proceedings in Indonesia. In this regard, the appellant undertook to waive its defence of time bar in Indonesia if it could lawfully do so.

Held, dismissing the appeal with costs:

(1) Where a plaintiff sues in Singapore in breach of an agreement to submit its disputes to a foreign court, and the defendant applies for a stay, the Singapore court has a discretion whether to do so or not. The court in exercising its discretion should grant the stay and give effect to the agreement between the parties unless strong cause is shown by the plaintiff for not doing so. In exercising its discretion the court should take into account all the circumstances of the particular case: at [11].

(2) The first factor merited some consideration in the respondent's favour. However the weight to be attached to it would be slight as the appellant undertook to furnish sufficient security in the event that the court stayed the proceedings: at [28].

(3) The second factor did not assist the respondent as there was no reason to conclude that the Indonesian courts would not in appropriate cases give effect to the parties' agreement that the Hague Rules governed their transaction and apply the Hague Rules: at [29].

(4) The respondent had shown that all its witnesses and probably the appellant's witnesses were in Singapore. The appellant, on the other hand, failed to show that the Indonesian master and crew of the vessel would be material witnesses in the proceedings or that it would be severely prejudiced without their evidence. This factor therefore failed to add any weight to the appellant's case for a stay of proceedings: at [34] and [35].

(5) There was no evidence to show that Indonesian law differed from Singapore law in any significant respect concerning matters relating to this claim or that there was likely to be serious dispute on the application of Indonesian law to the facts in the case. Furthermore, there was no material to show that a Singapore court would have difficulty in applying Indonesian law should the need arise. Little weight was thus attached to the fourth factor: at [36].

(6) Little weight was attached to the respondent's undertaking to waive its defence of time bar if a stay was granted: at [39].

Adolf Warski, The [1976] 1 Lloyd's Rep 107 (folld)

Joseph Grimberg (Drew & Napier) for the appellant

Dennis Murphy (Donaldson & Burkinshaw) for the respondent.

T Kulasekaram J

(delivering the judgment of the court):

1 2,523 pieces of Ramin logs were shipped on board the barge L 2600 and towed by this tug Jeddy X for carriage from Pulau Pisau and Paminggir, Indonesia to Singapore under two bills of lading dated 29 August and 15 September 1974 and numbered 1/74.

2 The said barge and tug left for Singapore on 19 September 1974 and while still in Indonesian waters had to be diverted to Sampit Bay, Indonesia where soon after arrival on 21 September 1974 the barge which was heavily listing to port was grounded. Singapore Salvage Engineers, a Singapore firm of salvors inspected and carried out salvage operations at the request of the appellants. Apparently this cargo of Ramin logs had been damaged by seawater.

3 Arising out of those transactions the plaintiffs/respondents as the owners or the persons entitled to the delivery of the cargo of Ramin logs comprised in the said two bills of lading commenced an Admiralty in Rem No 305 of 1975 against the owners of the barge L 2600 as first defendants and against the owners of vessels Jeddy IV, Jeddy VII, Jeddy XI and Jeddy XII as second defendants for damages and loss suffered by them and in the same action sued Amerco Timbers Pte Ltd in personam, as the third defendants as the persons who issued or on whose behalf the said two bills of lading were issued for damages and loss suffered by them.

4 Only the third defendants/appellants have so far been served. They entered a conditional appearance to the writ of summons and applied to have the writ set aside or alternatively for all further proceedings in the action as against them, the third defendants, to be stayed on the ground that under the contract of carriage contained in the said two bills of lading the parties had provided that “all actions under this contract shall be...