Equatorial Marine Fuel Management Services Pte Ltd v The "Bunga Melati 5"

• Jurisdiction: Singapore
• Judge: Teo Guan Siew AR
• Judgment Date: 07 July 2010
• Neutral Citation: [2010] SGHC 193
• Court: High Court (Singapore)
• Docket Number: Admiralty in Rem No 21 of 2010
• Published date: 23 July 2010
• Year: 2010
• Hearing Date: 11 May 2010,17 June 2010,07 July 2010,12 May 2010,03 May 2010
• Plaintiff Counsel: Leong Kah Wah, Teo Ke-Wei Ian and Koh See Bin (Rajah & Tann LLP)
• Defendant Counsel: Prem Gurbani, S Mohan and Adrian Aw (Gurbani & Co)
• Subject Matter: Admiralty and Shipping,Agency,Civil Procedure,Restitution
• Citation: [2010] SGHC 193

Teo Guan Siew AR: Introduction

This application to strike out an admiralty suit raised a number of issues relating to the invocation of the admiralty jurisdiction of the High Court, including the applicable standard of proof under s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed) and whether there is a threshold test of merits at the jurisdictional stage. It entailed a consideration of some recent decisions by our courts in this area, in particular the Court of Appeal decision in The “Vasiliy Golovnin” [2008] 4 SLR(R) 994 and the recent High Court case of The Eagle Prestige [2010] SGHC 93. As there were proceedings in the United States between the same parties preceding the present suit, cross-jurisdictional questions also arose, namely how the well-known “one claim, one ship” rule should apply when foreign proceedings are involved, and when a foreign court ruling is to be considered final and conclusive for the purpose of raising an issue estoppel. The way the substantive claim was pleaded by the plaintiff further brought into play issues of agency and the law on unjust enrichment.

I granted the defendant’s application, and struck out the admiralty writ and statement of claim. The plaintiff has since appealed against my decision. The defendant has also filed a cross-appeal against my refusal to declare that the plaintiff is not entitled to invoke the admiralty jurisdiction of the court by reason of the operation of the “one claim, one ship” rule. The reasons for my decision are set out below.

Background

The plaintiff, Equatorial Marine Fuel Management Services Pte Ltd, brought the present action against the defendant, MISC Berhad, to recover payments for bunkers supplied to the defendant’s vessels. The admiralty writ was served on one of the defendant’s ship, the “Bunga Melati 5”, but the vessel was not arrested. The “Bunga Melati 5” was not one of the vessels which received the bunkers in question, and hence this is a “sister ship action” under s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 123, 2001 Rev Ed) (“the Act”).

In the plaintiff’s statement of claim, it was alleged that the parties had entered into two fixed price contracts whereby the plaintiff agreed to supply bunkers for the months of August and September 2008, at a price of US$744 per metric ton and US$750 per metric ton respectively, to vessels owned or operated by the defendant (“the Fixed Price contracts”). In addition, the plaintiff had allegedly entered into a further contract with the defendant on a “spot” basis for the supply of bunkers to the defendant’s vessel the MT “Navig8 Faith” (“the Navig8 Faith contract”). An entity known as Compass Marine Fuels Ltd (“Compass Marine”) was the broker acting for the plaintiff for the Fixed Price contracts, while another entity OceanConnect UK Ltd (“OceanConnect”) was its broker for the Navig8 Faith contract. According to the plaintiff, a Malaysian company, Market Asia Link Sdn Bhd (“MAL”), had acted as the buying agent or broker of the defendant at all material times, and had procured bunkers on behalf and in the name of the defendant. The contracts for the supply of the bunkers were purportedly evidenced by emails sent by Compass Marine and OceanConnect to MAL, as well as other documents such as bunker confirmations and contract price confirmations which named the defendant as the contractual buyer for the bunkers.

The plaintiff further pleaded that the defendant had represented to the plaintiff and its brokers that MAL was acting on its behalf and had routinely directed third parties to deal with MAL as the defendant’s agent. In the circumstances, the plaintiff contended that the defendant was estopped from denying that MAL was its agent.

In the alternative to its contractual claim, the plaintiff’s case was that if there were no valid and binding contracts for the sale and supply of the bunkers between the parties, the defendant had been unjustly enriched by the plaintiff’s action in supplying bunkers to the defendant’s vessels. The plaintiff further contended that the offer of a corporate guarantee by the defendant, in the context of earlier US court proceedings in respect of the same dispute, amounted to an admission of liability by the defendant.

Prior to the start of this action, the plaintiff had commenced another set of proceedings in the United States District Court for the Central District of California, based on essentially the same claims as in the present proceedings. The plaintiff filed what is known as a “Verified Complaint” to obtain an attachment order under Rule B of the “Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure for the US District Courts”. The Rule B attachment order was executed against one of the defendant’s vessel, the “Bunga Kasturi Lima” in the port of Long Beach, California.

Shortly after the attachment of the vessel in the US, the defendant offered the plaintiff a corporate guarantee that the defendant would pay to the plaintiff the sum of US$22.4 million (which is equivalent to the plaintiff’s claim amount in the US proceedings), on condition that the plaintiff would withdraw all suits against the defendant and not commence any further actions against the defendant’s vessels. The plaintiff refused to accept the offer.

The defendant then filed a motion to vacate the Rule B attachment order, and to dismiss the Verified Complaint for failure to state a claim (which is akin to a striking out application). The California District Court vacated the Rule B order, on the basis that the plaintiff had failed to establish a valid prima facie case against the defendant for breach of contract or unjust enrichment. The plaintiff filed an appeal, which was dismissed by the United States Court of Appeals for the Ninth Circuit. The motion to dismiss the Verified Complaint was however not considered, and was scheduled for further hearing. That did not take place eventually, because the plaintiff sought a voluntary dismissal of its substantive action.

The defendant’s application

The defendant denied that it had contracted with the plaintiff, and averred that at all material times, it had procured the sale and supply of bunkers for its vessels from MAL as its contractual sellers. The defendant had made payment of the invoices issued by MAL, totalling more than US$17 million, for the supplies which form the subject matter of the plaintiff’s claims. The defendant also asserted that it had never received, and had no knowledge at all of any of the emails or other documentation which allegedly evidenced the contracts between the plaintiff and defendant.

In the present application, the defendant prayed for inter alia the following orders: A declaration that the defendant is not entitled to invoke the admiralty in rem jurisdiction of the court against the defendant’s vessel the “Bunga Melati 5” or any other vessel owned by the defendant in relation to the plaintiff’s alleged claim.

Admiralty jurisdiction of the High Court

Section 4(4) of the Act states:

In the case of any such claim as is mentioned in section 3 (1) (d) to (q), where — (a) the claim arises in connection with a ship; and (b) the person who would be liable on the claim in an action in personam (referred to in this subsection as the relevant person) was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,

an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against — (i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of that ship under a charter by demise; or (ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.

It is well established, and was not in dispute, that to invoke the High Court’s admiralty jurisdiction against a sister ship, the following requirements must be satisfied: the claim falls within one of the limbs in s 3(1)(d) to (q) of the Act; the claim arises in connection with the offending ship – s 4(4)(a); the person who would be liable on the claim in an action in personam (“the relevant person”) was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship – s 4(4)(b); and the relevant person is, at the time the action is brought, the beneficial owner as respect all the shares in the sister ship. It was further common ground between parties that the same principles apply whether the in rem jurisdiction is established by an arrest of a vessel, or by service of the in rem writ on a vessel: The Fierbinti [1994] 3 SLR(R) 574.

To show that the cause of action falls within one of the categories of s 3(1), the Court of Appeal in The “Vasiliy Golovnin” [2008] 4 SLR(R) 994 (“The Vasiliy Golovnin”), adopting its earlier ruling in The Jarguh Sawit [1997] 3 SLR(R) 829, decided that the burden on the plaintiff is one of showing a good arguable case. In particular, the Court of Appeal (at [49]) endorsed the following description of the state of Singapore law by Toh Kian Sing SC in Admiralty Law and Practice (LexisNexis, 2nd ed., 2007) (“Admiralty Law and Practice”) at 46:

If the subject matter jurisdiction of the court is challenged, the plaintiff under the law of Singapore only has to show that he has a good arguable case that his claim comes within one of the limbs of section 3(1) of the [HCAJA], as opposed to the more onerous test of a balance of probabilities.

It should however be pointed out that the footnote to the learned author’s commentary reproduced above goes on to state the qualification that there are certain cases, such as The...