Baridhi Shipping Lines Ltd and Another v Sea Consortium Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin JC
• Judgment Date: 27 June 2002
• Neutral Citation: [2002] SGHC 134
• Docket Number: Suit No 756 of 2001 (Summons in Chambers No 837 of 2002)
• Date: 27 June 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Doris Chua And Chang Man Phing ( Harry Elias Partnership )
• Citation: [2002] SGHC 134
• Defendant Counsel: Yang Ing Loong ( Allen & Gledhill )
• Court: High Court (Singapore)
• Subject Matter: Natural forum,Conflict of Laws,Plaintiffs applying to lift stay,Stay of action as Bangladesh the more appropriate forum -Bangladeshi court ruling it has no jurisdiction to try plaintiffs' claim,Applicable principles,Whether to lift stay,Stay of plaintiffs' action in Singapore

Judgment

GROUNDS OF DECISION

1 The first Plaintiff ("Baridhi") is a company registered in Bangladesh. At all material times it was, and still is, the agent in Bangladesh for Evergreen Marine Corporation (Taiwan) Ltd ("EMC"), a Taiwanese main line operator that manages and operates numerous vessels worldwide. As agent, Baridhi promotes and manages the business of EMC in Bangladesh, including securing shipping contracts for EMC.

2 The second Plaintiff ("HRC"), also a Bangladeshi company, is in the business of transporting cargo but on a smaller scale compared to EMC’s operations. Its mode of operation is to contract with major lines, such as EMC, to transport cargo out of Bangladesh to another country where that cargo would be loaded into larger vessels belonging to EMC for carriage to the final destination. For cargo destined for Bangladesh, HRC would pick up such cargo from EMC vessels and convey them to Bangladeshi ports. HRC and operators like it are called "feeder operators".

3 The first Defendant ("SCPL") is a company registered in Singapore. It is a feeder operator like HRC and is its competitor in Bangladesh. The second Defendant ("Wong") is a director of SCPL. The Plaintiffs allege that in respect of the acts complained of, Wong had acted in the course of his employment or had done so for and on behalf of SCPL.

4 The Statement of Claim alleges that Wong had published an e-mail dated 6 April 2001 which contained words that are defamatory of the Plaintiffs. The e-mail was sent to, inter alia, officers of EMC in Taiwan, an officer of RTW Shipping (S) Pte Ltd which is the agent for EMC in Singapore, and the office of the agent of EMC in Sri Lanka. The Plaintiffs’ claim is in damages, including special damages and exemplary damages. In 4 and 5 of the Statement of Claim the Plaintiffs explained the background to that e-mail in this manner:

4. The 1st Defendant was to have transported certain cargo out of Bangladesh for EMC. However, had it done so, it would have been in breach of the Bangladesh Flag Vessels (Protection) Shipping Ordinance, 1982 ("the Ordinance") construed together with the Notification dated 26 September 1982 in the Bangladesh Gazette. This was because being a foreign entity in Bangladesh, the 1st Defendant did not have the requisite waiver under the Ordinance. Hence the 1st Plaintiff arranged for the said cargo to be transported instead by the 2nd Plaintiff. Being owners and operators of Bangladeshi flag vessels, the 2nd Plaintiff did not and does not need to procure such a waiver.

5. When EMC queried why the said cargo was transported by the 2^nd Plaintiff and not the 1^st Defendant, the 1^st Plaintiff explained in e-mails dated 16 March 2001 and 22 March 2001. However, the 2^nd Defendant disagreed with the explanation in his e-mails dated 19 March 2001 and 6 April 2001.

5 The e-mail of 6 April 2001, in essence, stated that the issue of the legality of using SCPL to carry the cargo was just the pretext upon which Baridhi diverted cargo to HRC. Wong had alleged in the e-mail that the legislation in question was an outdated one which was originally enacted to protect the Bangladesh Shipping Corporation. He deposed that HRC, being a private shipping company was not the national line and it was not the intention of the legislation to protect such companies. However HRC and other private lines had been taking advantage of the legislation by putting undue pressure on the Director-General (Shipping) in Bangladesh to reject waivers for foreign vessels like those of SCPL. The e-mail ended in the following manner:

HRC are going about on a malicious campaign, trying to get these age old rules implemented, which is totally against the principles of Modern day Trade and the Globalisation market.

For your info, your agent in Bangladesh have a very Bad name in the market and their doings have in fact a negative image on themselves. If you study the movement of EMC bxs in the past few years, there is a drop. Martin, if you require to qualify our sources, pls check and confirm thru some independent sources about HRC’s reputation in Bangladesh.

…

Please do not quote this message to HRC directly.

6 The Plaintiffs pleaded that the words in the e-mail, in their natural and ordinary meaning, meant and were understood to mean that:

(a) Baridhi had lied to EMC and/or has distorted the truth in its explanation to EMC as to why SCPL was not engaged to transport the cargo in question;

(b) Baridhi was incompetent and inefficient and had a bad business reputation;

(c) HRC had lied to the Director-General (Shipping) or had distorted the truth about the legislation;

(d) HRC had been dishonest, exploitative and had conducted its business in an improper manner.

SIC 1513/2001

7 The writ in this action was filed on 18 June 2001 and served on 20 June on the Defendants in Singapore. On 4 July 2001 the Defendants took out an application in SIC 1513/2001 to stay the action on the ground that Bangladesh is the more appropriate forum. Two supporting affidavits were filed by Lim Kin Seng ("Lim"), the legal officer of SCPL. He related the background to the dealings that SCPL had with Baridhi and HRC. SCPL had been operating feeder services in Bangladesh since 1989 and between 1995 and 2000, Baridhi was SCPL’s agent in Bangladesh. However SCPL terminated this arrangement with effect from 15 April 2000 and appointed a new agent, Everbest Shipping Agencies Ltd ("Everbest"). SCPL believed that Baridhi began to allocate EMC cargo to HRC, which started feeder operations only in 1997. HRC had somehow persuaded the Director-General (Shipping) not to issue waiver certificates to foreign feeder operators such as SCPL. Without such certificates, a foreign operator of feeder services would be liable to punishment by a fine up to the value of the cargo. Lim stated that it was obvious that HRC had sought to eliminate competition by unfair means through the use of the said legislation. After taking legal advice in Bangladesh, SCPL, through its agent Everbest, commenced legal proceedings on 27 March 2001 in...