Brinkerhoff Maritime Drilling Corp and Another v PT Airfast Services Indonesia and Another Appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 02 July 1992
• Neutral Citation: [1992] SGCA 45
• Date: 02 July 1992
• Subject Matter: Claim for damages for personal injuries,Discretionary,Conflict of Laws,Jurisdiction of Singapore courts to hear claims for damages,Chartered flights provided by defendants from Singapore,Forum non conveniens,Natural forum,More real and substantial connections with Indonesia than with Singapore,Whether Warsaw Convention applicable,Air-crash in Indonesia,Whether Singapore was the 'place of destination',Stay of action,Jurisdiction,Civil Procedure,s 16(1)(a), (b) & (2) Supreme Court of Judicature Act (Cap 322)
• Docket Number: Civil Appeals Nos 21 and 22 of 1991
• Published date: 19 September 2003
• Defendant Counsel: Lee Han Tiong (Lee & Lee)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Helen Yeo (Helen Yeo & Partners)

These appeals were against the decision of the learned Tan Teow Yeow JC, who on 17 January 1991 ordered that two related actions be stayed. At the conclusion of the hearing, we dismissed the appeals. We now give our reasons.

The two actions arose out of an air-crash which occurred on 28 April 1981 at Pekan Baru, North Sumatra, Indonesia. The plaintiff in Suit No 1934 of 1983, John Acton (`Acton`), was a passenger on that aircraft which belonged to and was operated by the defendants. As a result of the crash, Acton suffered personal injuries. The plaintiffs in Suit No 1933 of 1983 (the other action), Brinkerhoff Maritime Drilling Corp (`Brinkerhoff`) and Crowley Maritime Corp (`Crowley`) were the employers and ultimate employers (Crowley is the the holding company of Brinkerhoff) of Acton and six other employees on that flight, of whom three died and three were injured.

At the relevant time Acton was engaged by Brinkerhoff to work as an electrician on board a barge, which was anchored in the Straits of Malacca in North Sumatra. The barge was used as a floating platform for the exploration and production of oil and gas. Acton, like all other employees, had to be transported to the barge from Singapore. They would board the defendants` aircraft in Singapore which would take them to Pekan Baru. From there they would board a helicopter to reach the barge. Acton and the other employees would work on the barge for a period of either one week or two weeks at a stretch, on the expiry of which period they would be transported back to Singapore and would be entitled to a corresponding rest period. The cycle would be repeated in that manner.

The defendants were an Indonesian company with their registered office and principal place of business at Jakarta. They owned and chartered out aircraft for the carriage of passengers and cargo. By virtue of an aircraft charter agreement dated 23 February 1981 entered into between the defendants and another Indonesian company, Hudbay Oil (Malacca Strait) Ltd (`Hudbay Oil`), the defendants agreed to charter to Hudbay Oil a Douglas DC-3/C-47 aircraft for flights from Seletar, Singapore to Pekan Baru and back to Singapore. The route as described in the aircraft charter agreement was `Seletar-Pekan Baru-Seletar`. It was not disputed that the chartered agreement was executed by the defendants and Hudbay Oil in Jakarta.

Brinkerhoff was the contractor of Hudbay Oil for the purposes of drilling for oil and gas off North Sumatra. It was part of their agreement that Hudbay Oil would make arrangements for the transportation of the employees of Brinkerhoff from Singapore to the barge and return.

The flight would usually depart from Seletar, Singapore at 7am on Tuesdays. It would return from Pekan Baru to Singapore the same day at 5pm. The flight time for each way was one hour. On each flight there would usually be employees of other contractors of Hudbay Oil.

In Suit No 1934 of 1983, Acton was claiming for damages and loss on account of the injuries he suffered as a result of the air crash. In Suit No 1933 of 1983, Brinkerhoff and Crowley were claiming for indemnity from the defendants for the loss they might suffer on account of the death of or injuries suffered by their employees. They were being sued in the United States by their employees. Both the writs were filed in the High Court on 27 April 1983, just one day before the expiry of the limitation period of two years. Leave was obtained to serve the writs on the defendants out of jurisdiction. The defendants entered conditional appearance and applied by way of summons-in-chambers to set aside the writs; alternatively, they asked that all further proceedings be stayed. The application came before the senior assistant registrar who dismissed it. On appeal by the defendant, the learned judicial commissioner ordered a stay.

As both appeals raised identical legal issues, we shall for convenience hereinafter refer only to the appeal in Suit No 1934 of 1983 involving Acton. Both counsel agreed that our decision in one would apply to the other.

It was common ground between the parties that both Indonesia and Singapore were and are signatories to the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955, hereinafter referred to simply as `the Warsaw Convention` or `the Convention`. Both countries are bound by the Convention.

The relevant clauses of the aircraft charter agreement were the following:

(29) This agreement is entered into by the charterer both on its own behalf and as agent for all passengers, consignors and consignees and other persons having any interest in the baggage and cargo carried pursuant to this agreement.

(32) The carrier`s conditions of contract of passengers, baggage and goods (which are based upon the Convention of Warsaw of 12 October 1929 as amended by the Hague Protocol 1955 whichever may be applicable to carriage hereunder) shall be deemed to be incorporated herein in so far as the same are applicable thereto and are not inconsistent with the conditions of this agreement.

(33) This agreement shall be construed and take effect in all respects in accordance with the law where the agreement is made, and any action arising out of this agreement or the execution or performance thereof shall be brought in the courts where the agreement is made, unless the carrier elects or approves otherwise.

We would first like to clear a minor point. On p 1 of the top right-hand corner of the aircraft charter agreement, there appears these words `Dated at Singapore on 23 February 1981`. Counsel for Acton said that this meant that the agreement was made in Singapore. While the document could have been prepared in Singapore, the undisputed fact is that the execution of the agreement was done by the defendants and Hudbay Oil in Jakarta. In our view, the agreement was made in Jakarta.

There are really two main issues in this appeal. One, have the Singapore courts the jurisdiction to hear the claim? Two, if the answer to the first is in the affirmative, should the Singapore courts decline to hear the case on the principles of forum non conveniens?

Jurisdiction

Counsel for the plaintiffs submitted that the Singapore High Court has, under its municipal laws, jurisdiction to hear the action. She relied upon s 16(1)(a) and (b) of the Supreme Court of Judicature Act (Cap 322) (`the SCJA`) and art 28(1) of the Warsaw Convention.

Section 16(1)(a) and (b) of the SCJA provides that the High Court shall have jurisdiction to try all civil proceedings where `the cause of action arose in Singapore` or `the defendant ... resides or has his place of business or has property in Singapore`. Furthermore, s 16(2) provides that, without prejudice to s 16(1), the High Court shall have such jurisdiction as is vested in it by any written law.

Under art 28(1) of the Warsaw Convention, it provided that `an action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination`.

We should, at this juncture, observe that it is also common ground between the parties that the articles of the Warsaw Convention have been incorporated as part of the municipal law of Singapore by virtue of the UK Carriage By Air Act 1961.

We do not propose to examine the arguments of the appellant based on s 16(1)(a) and (b) of the SCJA. We intend to confine ourselves to an examination of only art 28(1) of the Convention, and even then only the fourth and last limb of it, read with s 16(2) of the SCJA. We think jurisdiction could quite clearly be founded on the fourth limb of art 28(1).

In this regard, the first point to consider is whether the Convention applied to those chartered flights provided by the defendants. Article 1(1) provides that the Convention applies to `all international carriage of persons, baggage or cargo performed by aircraft for reward`. It also applies to gratuitous carriage. Further, art 1(2) defines international carriage as:

... any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

On the facts of the present case, whichever view one may take of that fateful flight boarded by Acton, whether it was intended to be a round trip flight, that is, Seletar/Pekan Baru/Seletar, or whether there was just supposed to be a single flight from Seletar to Pekan Baru (without the return journey) the flight on the sector Seletar/Pekan Baru is clearly an international carriage within the meaning of art 1.

It was undisputed that the defendants were not airline operators involved in the provision of regular scheduled flights for the public. They were just owners of aircraft which they chartered out. The charter agreement related to the charter to Hudbay Oil of a DC-3 aircraft for a series of flights between Seletar Airport, Singapore and Pekan Baru and return for a ten-week duration. The defendants claimed that they had no knowledge of the persons whom Hudbay Oil would be transporting on the flights and what the arrangements were between Brinkerhoff and Hudbay Oil. For each flight, Hudbay Oil would provide a list of passengers, setting...