Asteroid Maritime Co Ltd v The owners of the ship or vessel "Saudi Al Jubail"

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 28 August 1987
• Neutral Citation: [1987] SGHC 71
• Court: High Court (Singapore)
• Year: 1987
• Published date: 11 July 2007
• Plaintiff Counsel: Ian Hunter QC with Jaya Prakash and Richard Kuek
• Defendant Counsel: Anthony Clarke QC with Gina Lee-Wan
• Citation: [1987] SGHC 71

28 August 1987

Lai Kew Chai J

1 In these Admiralty in Rem proceedings the defendants, owners of the ship “Saudi Al Jubail” ex “Nedlloyd Holland” apparently and provisionally registered with the United Arab Emirates Registry, made an application for orders to the effect that the Writ herein and all subsequent proceedings be set aside and that the plaintiffs pay the defendants damages for wrongfully arrest and detention of the vessel. The application was founded on the contention that the plaintiffs had wrongfully invoked the admiralty jurisdiction in that the person liable in personam to the plaintiffs was not the owners of the said vessel. The owners of the vessel at the time when the Writ herein was filed were originally alleged and held out to this Court to be Saudi Al Jubail Navigation Co. Ltd said to be existing and registered under the laws of the United Arab Emirates.

2 As a result of the plaintiffs’ allegations to the contrary, the defendants after a lapse of a year and four months made the alternative assertion that if Saudi Al Jubail Navigation Co. Ltd was found to be non-existent or that title had not passed to it, then the owners of the vessel would, alternatively, be Omega Shipping Company Limited (hereinafter referred to as “Omega”) which had purportedly transferred title of the vessel to it. When the application was first heard, all assertions that Saudi Al Jubail Navigation Co. Ltd were the owners of the vessel at the filing of the Writ herein were abandoned and it was asserted throughout the rest of the proceedings that Omega were the owners of the vessel at the material time. As for the other side of the equation to dispute any admiralty jurisdiction, the defendants asserted that the person liable in personam were Saudi Cargo Carriers Co. Ltd, a company incorporated in Saudi Arabia which, after the constructive total loss of its vessel “Saudi Star”, had no asset whatsoever to speak of. Its principal shareholder was one Mohammed Abdul Rahman Orri (hereinafter called “Mohammed Orri”), a central figure in these and other proceedings to which I shall refer.

3 For the plaintiffs, it was alleged in the affidavit leading to the warrant of arrest of the vessel that the person who would be liable in personam to the plaintiffs was Mohammed Orri and that whatever the nominal registration particulars of the vessel were, the vessel was at the time the Writ herein was filed in the beneficial ownership and control of Mohammed Orri.

4 These issues were raised in several affidavits filed by both parties and, quite inevitable, it was ordered by the High Court that the deponents had to be produced for cross examination by the other party, failing which the relevant affidavits would not be used as evidence. Parties were also at liberty to call other witnesses.

5 The plaintiffs’ claim is for US$397,438.58 together with interest and costs being the balance of the account and/or damages due under a charterparty with the defendant in respect of the plaintiffs’ vessel known as “Fidelity” which was dated 30 March 1984 (hereinafter referred to as “the charterparty”). They filed the Writ in the High Court on 7 July 1984. On the same day, the vessel “Saudi Al Jubail” was arrested. It has since been sold and the proceeds are in court. On 12 July 1984 a conditional appearance was entered “for the owners of the ship ‘Saudi Al Jubail’”. The application of the defendants to set aside the Writ and subsequent proceedings were duly filed by the defendants.

6 It is to be observed therefore that the plaintiffs’ claims, though unconnected with the vessel “Saudi Al Jubail”, are claims which could be brought under the admiralty jurisdiction of the High Court as they come within section 3(1)(h) of the High Court (Admiralty Jurisdiction) Act, Cap 123 1985 Ed. (hereinafter referred to as “the Act”). For the jurisdiction in rem to be invoked under section 4(4)(b) of the Act the plaintiffs must satisfy the court that the person who would be liable in an action in personam was, when the cause of action arose, the charterer of a ship and that the ship which was arrested was at the time when the action was brought, was beneficially owned as respects all the shares therein by the same person. The two questions are, of course, in dispute before me and they have to be determined on the evidence and such reasonable inferences as may be drawn from the primary facts.

7 The plaintiffs alleged that when the charterparty was entered into it was done under the instructions given by or on behalf of Mohammed Orri. It was not disputed that it was negotiated and concluded through the agency of Saudi Chartering S.A. and its proper performance was guaranteed by Saudi International Shipping Company S.A. The first named company was beneficially owned and controlled by Mohammed Orri to whose office in Piraeus, Greece, all communications relating to the charterparty were sent. The second named corporate guarantor was non-existent.

8 That Mohammed Orri was the only person within his Group of Companies, existent and non-existent, who decided and concluded charterparties is established on the oral and documentary evidence before me. In internal memoranda dated between September 1983 and March 1984, Mohammed Orri directed that a copy of any charterparty had to be given to him, no doubt for his final approval.

9 It is also not disputed that the party ostensibly entering into the charterparty of the “Fidelity” was given by the negotiating agents of the real charterer as “Cargo Carriers Co. Ltd” of Jeddah. It has since been established, although the plaintiffs did not know it at the time they entered into the contract, that “Cargo Carriers Co. Ltd” of Jeddah was not a company with a legal existence anywhere. It was alleged by the defendants in evidence that at that time the Orri Group was in turmoil and that in the confusion a genuine mistake was made. Mr Bruce Marshall of Unidan Shipping Services Ltd, the defendants’ brokers, gave evidence. He admitted that he had given the name “Cargo Carriers Co. Ltd” to the plaintiffs’ brokers, one John Maynard. Mr Marshall’s working copy, which he prepared with great care, referred to the charterers as “Cargo Carriers”. Faired copies were sent to both parties and so far as the defendants were concerned, their copy reached their Piraeus office on 17 April 1984. It is remarkable that the error, if it was one, was not spotted by anyone in the Piraeus office.

10 On top of this, the Piraeus office perpetuated the statement that “Cargo Carriers” were the charterers. The guarantee given to the plaintiffs by Saudi International Shipping Co. S.A. of Jeddah, (which, be it noted, did not exist), identified “Cargo Carriers” as the charterers. The...