District Judge Chiah Kok Khun:
INTRODUCTION
“Sweet Haven” (“the Vessel”) was a fully-decked fibreglass cabin cruiser owned by the Plaintiff, Mr Cheong Chung Kin. It was a luxury yacht measuring 10.9m in length, with a capacity of 12 passengers. The Vessel was customarily moored at One Degree 15 Marina at Sentosa (“the Marina”). The Defendants are partners of and trading as Swift Integrated Marine Services which operated out of the Marina and provided services to the pleasure boat owners at the Marina. There is some disagreement as to the extent of the firm’s services to the boat owners and this will be revisited below. However, it is not disputed that at the least, the firm provided cleaning and maintenance services to boat owners, including the Plaintiff. The 1st Defendant, Mr David Sim Teck Seang is the partner in charge of the firm. He was the person who interacted with the Plaintiff; and the 2nd and 3rd Defendants did not appear to have directly played a part in the events leading up to the claim in this case.
In the night of 13 November 2013, the Vessel was on the way back to the Marina from an outlying islet, Lazarus Island. The Plaintiff was piloting the Vessel. Whilst so underway, the Vessel met with a suspected grounding incident. The Plaintiff detected what he described as a “grinding” sensation. He thought the Vessel’s underwater hull might be damaged. The port engine was vibrating after the incident. The Plaintiff had to rely only on the starboard engine to sail the Vessel into the Marina. Nevertheless, the Vessel returned safely to shore.
Back at the Marina, the Plaintiff examined the transom floor and detected no sign of water ingress. He inspected the engine room and found that it was dry. The Plaintiff wanted the Vessel to be investigated to determine if there was damage; and if repairs were needed. He called the 1st Defendant who met him at the Marina. He asked the 1st Defendant to do a check on the Vessel. The 1st Defendant conducted a physical check of the Vessel in the morning of 14 November 2013. No visible damage was discovered. He then instructed an underwater hull cleaner to don snooker mask to inspect the underwater hull. The hull cleaner found the port rudder and propellers bent. The 1st Defendant started the engine and noted vibrations. The 1st Defendant informed the Plaintiff that to properly examine the underwater hull, the Vessel would have to be up slipped. There was unfortunately, and perhaps surprisingly, no facilities at the Marina to up slip the Vessel. There were however facilities to do so at the Marina Country Club at Punggol (“Punggol”). The 1st Defendant discussed with the Plaintiff the options to move the Vessel to Punggol. The Plaintiff was leaving Singapore on 14 November 2013 for a work trip. He asked the 1st Defendant to help make arrangements to send the Vessel from the Marina to Punggol for the Vessel to be up slipped for investigation.
The voyage from the Marina to Punggol took place on 15 November 2013. It turned out to be the Vessel’s last. At about 11.45am the 1st and 2nd Defendants, together with the skipper, Mr Md Mus Mulyadi Bin Md Salim and a crew member, Mr Lai Kah Jun sailed the Vessel from the Marina towards Punggol. The skipper and the crew member were engaged by the Defendants to pilot the Vessel. Extra pumps were brought on board for the voyage. Only the starboard engine was operating as the port engine was faulty. After about 20 minutes of sailing, and before the Vessel reached Outer Shoal Beacon, water started seeping into the engine room portside floorboard. All the pumps were activated to rid the Vessel of water. However water continued to enter the Vessel. On the skipper’s orders, all on board had to don lift vests and abandon ship. At about 12.20pm, “Sweet Haven” sank. The crew were in the water for about 15 minutes before they were rescued by a passing vessel.
THE PLAINTIFF’S CLAIM
The Plaintiff’s claim against the Defendants is for damages as a result of the loss of the Vessel. The Plaintiff is proceeding on two causes of action against the Defendants. One cause of action is in bailment and the other is in negligence. The quantum has been agreed. There was another cause of action, in contract, which the Plaintiff had pleaded but did not proceed with.
The claim is a subrogated action. The Plaintiff had taken the insurer of the Vessel, Tenet Sompo Insurance Pte Ltd (“Insurer”) to court on his claim under a marine insurance policy for the loss of the Vessel. The claim was settled. The Insurer then exercised its right of subrogation and commenced the present action in the name of the Plaintiff against the Defendants to recover the settlement sum paid to the Plaintiff. The Defendants pointed out that the Insurer steps into the shoes of the Plaintiff and its rights are those of the Plaintiff’s. There is no dispute that in law this must be so, and it does not appear to me that the Insurer has at any point in the case proceeded otherwise. The causes of action commenced against the Defendants in this case are those that could be and would be mounted by the Plaintiffs, as required in a subrogated claim.
ISSUES
As alluded to above, the Plaintiffs are proceeding with two causes of action against the Defendants, namely, bailment and tort of negligence. The Defendants deny liability under both causes of action. The primary issues in this case are therefore those in respect of these two causes of action. The Plaintiff has set out the issues and I agree that they are the issues pertinent to the determination of this case. The issues are as follows.
The issues in respect of the cause of action in bailment are as follows: Whether a bailment arose by reason of the Defendants taking possession of the Vessel for the sea voyage from the Marina to Punggol? Whether the bailment was a bailment for reward or a gratuitous bailment? Whether the Defendants as bailees had proven on a balance of probabilities that they had taken reasonable care of the Vessel and whether there was a breach of duty on the part of the Defendants?
In relation to the cause of action in the tort of negligence, the issues are as follows:- Whether the Defendants owed a duty of care to the Plaintiff to take reasonable care of the Vessel? What was the standard of care and whether the Defendants breached their duty of care?
There is also the factual question of what caused the Vessel to sink during its last voyage. The Defendants’ case is that the cause of the sinking of the Vessel is not attributable to them. In this regard, the Plaintiff has framed the issue of causation in the following manner:
Whether the Defendants’ failure to properly inspect the bottom of the Vessel and their subsequent decision to proceed with the sea voyage without properly ascertaining if the Vessel could safely sail from the Marina to Punggol, caused the Vessel to sink?
Finally, the Defendants contend that the task of moving the Vessel from Marina to Punggol was a personal act of the 1st Defendant and the partnership is not liable for the 1st Defendant’s personal act. There is therefore the additional issue of whether the Defendants are jointly and severally liable to the Plaintiff in the event that I find in favour of the Plaintiff in respect of his claim.
THE PLAINTIFF’S CLAIM IN BAILMENT
Whether a bailment arose by reason of the Defendants taking possession of the Vessel for the sea voyage from the Marina to Punggol?
The essence of bailment is the taking of possession of goods with an assumption of responsibility for the safe keeping of the goods. A bailment is said to arise when the bailee acquires exclusive possession of the chattel: Midland Silicones Ltd v Scruttons Ltd [1959] 2 QB 171, at 189. The Singapore High Court explained the underlying concept of bailment to involve the delivery of goods by the bailor to the bailee upon a trust under which the bailee undertakes to take reasonable care of the goods and to redeliver them to the bailor: see Chua Chye Leong Alan v Grand Palace De-luxe Nite Club Pte Ltd [1993] 2 SLR(R) 420 (“Chua Chye Leong”) at [39]. In Chua Chye Leong, it was held that bailment was established when a car “jockey” took possession of the plaintiff’s car in order to park the car; and subsequently to return it to the plaintiff. The car owner had delivered and entrusted the car to the car “jockey” to take reasonable care of the car and it was held that a bailment subsisted. It would appear therefore that for a bailment to subsist, it must first be established that the goods in question were in the control and possession of the bailor. Second, it must be shown that there was an assumption of responsibility by the bailor for the safe keeping of the goods.
In the present case, it is not disputed by the 1st Defendant that the Vessel was in the control and possession of the Defendants at the material time. The Plaintiff had to leave for overseas on business and he delivered and entrusted the Vessel to the Defendants. The Plaintiff signed an authorisation letter to authorise the Defendants to “handle all matters pertaining to” the Vessel. This is consistent with the Plaintiff’s case that he had entrusted the Vessel to the Defendants’ possession. The Plaintiff’s evidence is that he made it clear that the Vessel had to be safe and that the Defendants had to make sure that they checked the Vessel before the Defendants sailed her from the Marina to Punggol. It is plainly reasonable for the Plaintiff to expect that the Defendants would take reasonable care of the Vessel when she was in the Defendants’ possession and that the Defendants would redeliver the Vessel to the Plaintiff in safe condition. The Plaintiff stated that he was assuaged of his concerns for the safe handling of the Vessel when the 1st Defendant told him that he had sent a person to check the underwater hull and no damage to the hull was...
