Bhavani Stores Pte Ltd v The Oriental Insurance Co Ltd

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 17 April 1997
• Neutral Citation: [1997] SGHC 101
• Court: High Court (Singapore)
• Year: 1997
• Published date: 21 May 2013
• Plaintiff Counsel: Lawrence Quahe
• Defendant Counsel: Danny Chua
• Citation: [1997] SGHC 101

Judgment:

GROUNDS OF JUDGMENT

1 The Plaintiff is a trading company incorporated in Singapore. The Defendant is an insurance company incorporated in India and having a registered office in Singapore.

2 By various policies of insurance issued at Dubai, United Arab Emirates < 'the policies' > , the Defendant as insurer agreed with the Plaintiff as the assured to insure a shipment of 5742.521 net metric tons of raw dried cashew nuts in bags < 'the shipment' > , on a voyage on the vessel MV Bahiana Reefer ('the vessel') from Bissau, Guinea Bissau to Tuticorin, India, including discharge at the port of Tuticorin. The endorsement to the policies stated: covering among other clauses Institute Cargo Clause(s) (A) ... Port Warehouse To Port Warehouse, with claims payable in India or Singapore ... . It was further provided that the 'insurance is subject to English law and practice.'

3 Upon discharge at the port of Tuticorin, the shipment was to be delivered to various consignees there.

4 In or about August 1995, the shipment was loaded on board the vessel and clean bills of lading were issued. The total tonnage of the shipment was 5,768.216 metric tons.

5 On or about 30 September 1995, the vessel reached the port of Tuticorin. The discharge of the shipment was effected by the vessel's agents. It is the Plaintiff's claim, in paragraph 6 of the Statement of Claim, that in the discharge the stevedores used hooks. As a result, the bags were torn and there was spillage of the contents therefrom. The spillage was swept up, re-bagged and delivered to the consignees.

6 Due to the spillage there was a shortfall of 408.135 metric tons in the shipment delivered to the consignees < 'the shortfall' > . The Plaintiff's sale of the cashew nuts to the consignees was based on landed weight. The total value of the shortfall is said to amount to US$536,803.45. Shortfall due to spillage is an insured peril. Under the policies the Defendant is liable to pay the Plaintiff the value of the shortfall less 1% of the value of all the bills of lading which amounts to US$76,261.75. The Plaintiff's claim thus works out at US$461,541.70. On the Defendant's failure to pay the sum claimed, the Plaintiff on 12 September 1996 commenced these proceedings claiming the said sum of US$461,541.70 plus interest and costs.

7 On being served with writ, the Defendant applied for an order that all proceedings be stayed on the ground that Singapore is not the appropriate forum for the trial of the action. The application was dismissed by the assistant registrar whose decision was affirmed by me. The Defendant has appealed to the Court of Appeal. I now give my reasons.

8 The writ was served on the Defendant at its registered office in Singapore. Accordingly jurisdiction has been founded as of right under s 16(1)(a) of the Supreme Court of Judicature Act (Cap 322) which reads:

The High Court shall have jurisdiction to hear and try any action in personam where -

(a) the defendant is served with a writ or other originating process - (i) in Singapore in the manner prescribed by Rules of Court. (ii) ... ...

9 The law on forum non conveniens in cases where jurisdiction is founded as of right is authoritatively stated by Lord Goff in the Spiliada < 1987 > 1 Lloyd's Report 1 at 9-12:

In cases where jurisdiction has been founded as of right, i.e. where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the Court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens. ... ... In my opinion, having regard to the authorities (including in particular the Scottish authorities), the law can at present be summarized as follows:

(1) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the Court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

(2) ... ... in general the burden of proof rests on the defendant to persuade the Court to exercise its discretion to grant a stay ... ... Furthermore, if the Court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country.

(3) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact the plaintiff has, exhypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the...