Sea Breeze Navigation Company SA v The Hsing an (Owners)

• Judgment Date: 05 October 1973
• Date: 05 October 1973
• Docket Number: Admiralty in Rem Suit No 130 of 1973
• Court: High Court (Singapore)

The “Hsing An”

[1973] SGHC 25

F A Chua J

Admiralty in Rem Suit No 130 of 1973

High Court

Admiralty and Shipping–Admiralty jurisdiction and arrest–Action in rem–Whether claim within admiralty jurisdiction of court–Section 3 (1) High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Rev Ed)–Admiralty and Shipping–Practice and procedure of action in rem–Writ in rem–Application for proceedings to be stayed on grounds of being vexatious and oppressive and an abuse of the process of the court–Admiralty and Shipping–Practice and procedure of action in rem–Writ in rem–Application to set aside writ on grounds that claim disclosed no reasonable cause of action –Order 18 r 19 The Rules of the Supreme Court 1970

The defendant entered into negotiations with the plaintiff's agents for the sale of the vessel Hsing An.According to the plaintiff, a binding contract had been reached. However, the plaintiff was subsequently told that the defendant had considered that the deal with the plaintiff was terminated because of the defendant's failure to obtain an export licence from the Taiwan Government. The plaintiff arrested the vessel in Singapore and sought a declaration that it was the owner of the vessel as well as for damages for breach of agreement.

The defendant applied for the writ of summons and all subsequent proceedings to be set aside on the ground that the plaintiff's claim disclosed no reasonable cause of action. Alternatively, it prayed for the action to be stayed in favour of Taiwan on grounds that it would be vexatious and oppressive to the defendant and an abuse of the process of the court for the proceedings to continue in Singapore.

Held, dismissing the defendants' motion:

(1) In considering whether it had jurisdiction, the task of the court was to ask itself on the pleadings as far as they have gone, without reading any affidavit whatsoever, whether there was a triable issue falling within the list of s 3 (1) of the High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Rev Ed) (“the Act”). The pleadings disclosed an application for relief which was clearly and squarely a claim within s 3 (1) (a) of the Act: at [28] and [29].

(2) The main object of the plaintiff in suing in Singapore was to obtain the necessary security for its claim. The danger of the plaintiff being completely exposed if the security here disappeared was certainly very real: at [42].

(3) The defendant failed to satisfy the court that the action was vexatious or oppressive or an abuse of the process of the court such as to warrant a stay: at [46].

Atlantic Star, The [1974] AC 436 (folld)

Monte Urbasa, The [1953] 1 Lloyd's Rep 587 (refd)

St Pierre v Smith American Stores (Gath and Chaves) Limited [1936] 1 KB 382 (refd)

Wenlock v Moloney [1965] 1 WLR 1238 (refd).

High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Rev Ed)s 3 (1) (consd)

Rules of the Supreme Court 1970, TheO 18r 19 (consd)

K A O'Connor (Drew & Napier) for the plaintiff

Lee Kim Yew (Lee & Lee) for the defendants.

F A Chua J

1 On 28 July 1973 the plaintiffs of Panama City, Republic of Panama, issued a writ of summons in rem against the owners of the vessel Hsing An (hereinafter called “the vessel”) claiming (a) a declaration that they are the sole beneficial owners of the vessel of the port of Keelung; (b) as such sole beneficial owners, to have possession of the vessel decreed to them and legal title to the vessel transferred to them; (c) damages for breach of agreement.

2 The vessel was arrested in Singapore on 1 August 1973 at the instance of the plaintiffs. Tai An Steamship Co Ltd of Taipei, Taiwan, the owners of the vessel entered conditional appearance on 8 August 1973.

3 The plaintiffs amended their writ of summons as [italicised] on 12 September 1973 without leave pursuant to O 20 r 1 as follows:

The plaintiffs claim:

1. (a) A declaration that they are the sole beneficial owners of the vessel 'Hsing An' of the port of Keelung and/or that the title thereto and any rights derived by the defendants from the agreement for her construction and sale by Taiwan Shipbuilding Corp are held by the defendants as trustees for the absolute benefit of the plaintiffs as such sole beneficial owners.

2. (b) As such sole beneficial owners, to have possession of the vessel decreed to them and legal title to the vessel transferred to them.

3. (c) Alternatively specific performance of an agreement concluded in October 1972 between the plaintiffs and defendants for the transfer by the defendants to the plaintiffs of the vessel and/or all the defendants' rights in respect of the construction, ownership and delivery thereof; alternatively damages for breach of that agreement.

4 The defendants now move the court for the following orders:

1. (1) That the writ of summons and all subsequent proceedings herein be set aside with costs on the ground that the plaintiffs' claim herein discloses no reasonable cause of action of claim to ownership of the vessel 'HSING AN' or any other claim entitling the plaintiffs to invoke the admiralty jurisdiction of this Honourable Court in rem against the said vessel.

2. (2) That the plaintiffs do pay damages to the defendants in respect of the losses and expenses suffered by the defendants as a result of the arrest of the vessel, mv 'HSING AN' and that the determination of the amount of such damages be referred to the Registrar;

3. (3) Further or alternatively that all proceedings be stayed on the grounds that the same is vexatious and oppressive to the defendants and an abuse of the process of the court;

4. (4) Such further and/or other relief as this Honourable Court may think fit.

5 Before proceeding further it is necessary to set out shortly the history of the dispute between the plaintiffs and the defendants.

6 By a shipbuilding contract dated 21 January 1971, (hereinafter referred to as “the shipbuilding contract”) entered into between the Taiwan Shipbuilding Corp of Keelung, Taiwan, and the defendants, the shipbuilders agreed to construct the vessel for the defendants. The vessel was duly delivered to the defendants on 26 July 1973.

7 Before the completion of the vessel, the defendants on 13 October 1972, wrote to Teh Tung Steamship Co of Taipeh, a firm of shipbrokers, (hereinafter referred to as “Teh Tung”) offering the vessel for sale. Teh Tung has also an office in Tokyo. Teh Tung of Tokyo requested H Clarkson & Co (hereinafter referred to as “Clarkson”), shipbrokers of London, to offer the vessel on the London market.

8 Clarkson then negotiated with Loucas Nomicos (England) Co Ltd (hereinafter referred to as “Nomicos”), agents of the plaintiffs, for the sale of the vessel. Telexes passed between Clarkson and Teh Tung, Tokyo, as to the terms and conditions of the sale.

9 According to the plaintiffs a binding contract either for the sale of the vessel or for the assignment of the shipbuilding contract had been reached on 17 October 1972, and it was contemplated that the agreement should be reduced to writing. However, on 6 December 1972, the plaintiffs were told that the defendants considered that the deal with the plaintiffs was terminated as a result of the defendants' failure to obtain an export...