Ever Radiant Shipping Pte Ltd v KPRSG International Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Navin Anand
• Judgment Date: 10 June 2024
• Neutral Citation: [2024] SGDC 141
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 750 of 2020
• Hearing Date: 22 February 2024,26 April 2024
• Citation: [2024] SGDC 141
• Year: 2024
• Plaintiff Counsel: Chidambaram Selvaraj and Gideon Chew Ming Kai (Apex Law LLC)
• Defendant Counsel: Mohamed Baiross and Lum Jing Wen, Crystal (I.R.B Law LLP)
• Subject Matter: Admiralty and Shipping,Bills of lading,Bills of lading as contract of carriage,Evidence,Principles,Necessity for best evidence,Tort,Misrepresentation,Fraud and deceit,Conspiracy,Unlawful means conspiracy
• Published date: 20 June 2024

District Judge Navin Anand:

The dispute in DC/DC 750/2020 (“DC 750”) arises out of a containerised shipment of glass panels (“Cargo”) from Chennai, India, to Singapore (“Shipment”).

The plaintiff, who is reflected as the notify party in the bill of lading issued for the Shipment (“Bill of Lading”), commenced DC 750 against the 1st and 2nd defendants, who are the named consignee in the Bill of Lading and a director of the 1st defendant respectively. The plaintiff’s claims are for breach of contract, fraudulent misrepresentation, and conspiracy, and essentially arise out of the 1st defendant’s refusal to pay the plaintiff’s invoice and take delivery of the Cargo in Singapore.

The plaintiff’s claim is premised on the assumption that the Bill of Lading has contractual effect. Although a bill of lading is often evidence of the terms of the contract of carriage (see The “Jeil Crystal” [2024] SGHC 74 at [36]), this is not invariably the case, and the mere existence of a bill of lading does not ipso facto clothe any named person in that document with a cause of action founded in contract.

After considering the evidence and the submissions, I find that the Bill of Lading does not have contractual effect and have decided to dismiss the entirety of the plaintiff’s claim. I set out my full grounds below, and will begin with the salient facts.

Facts The parties

The plaintiff, Ever Radiant Shipping Pte Ltd, is a Singapore-incorporated company in the shipping industry.¹ It is in the business of logistics and acting as a non-vessel operating common carrier.²

The 1st defendant, KPRSG International Pte Ltd, is a company incorporated in Singapore.³ The registered business activities of the 1st defendant includes the wholesale trading of goods, but the company has been dormant since its inception in March 2018, with no business transactions and no significant assets.⁴

The 2nd defendant, Mr Mohamed Naina Haja Kuthbudheen, is the majority shareholder of the 1st defendant as well as its sole local director.⁵ The other shareholder and director of the 1st Defendant is Mr Gopal Gunder Palanivel (“Mr Gopal”), an Indian national residing in India.⁶

The Bill of Lading

It is common ground that there were no dealings between plaintiff and the defendants prior to the issuance of the Bill of Lading.⁷

On or around 3 October 2019, the Bill of Lading was issued in Chennai by Ever Radiant Shipping & Logistics (“ERSL”), ⁸ an Indian company that appears to be related to the plaintiff.⁹ I should highlight at this juncture that the authenticity of the Bill of Lading was disputed by the defendants, and my decision on this issue is set out at [37] to [40] below. However, to better explain the context of this dispute and the parties’ arguments, I reproduce some relevant details from the Bill of Lading, starting with the front of the Bill of Lading.¹⁰ Astromar Logistic Pvt Ltd (“Astromar”) was listed as the shipper of the Cargo, while the 1st defendant was reflected as the consignee. The plaintiff was indicated as the notify party and the delivery agent. The Cargo was packed in three twenty-foot-long containers (“Containers”) and shipped onboard the vessel “Xin Pu Dong” (“Vessel”). The port of loading and the port of discharge were Chennai and Singapore respectively. While bills of lading are usually issued in sets of three originals, only one original Bill of Lading was issued for the Shipment. In addition, the front of the Bill of Lading contained the notation “OBL SURRENDERED IN CHENNAI”. The Bill of Lading was signed by ERSL as “AGENT FOR CARRIER”.

The reverse of the Bill of Lading contained a set of terms, and the salient ones read as follows:¹¹ 1. Definition

Carrier means the party on whose behalf this [Bill of Lading] has been signed. “Merchant” includes shipper, consignor, consignee, owner and receiver of the Goods and the holder of this [Bill of Lading].

…

2. Governing Law and Jurisdiction

The contract evidenced by or contained in this [Bill of Lading] shall be governed by Singapore Law except as may be otherwise provided herein, and any action thereunder shall be brought before the Singapore Court in Singapore.

…

17. Delivery

If delivery of the goods or any part thereof is not taken by Merchant at the time and place when and where Carrier is entitled to call upon Merchant to take deliver there Carrier shall be entitled to store the goods or the part thereof at the sole risk of Merchant, whereupon the liability of Carrier in respect of the goods or that part thereof stored as aforesaid (as the case may be) shall wholly cease and the cost of such storage (if paid by or payable by Carrier or any agent or sub-contractor of Carrier) shall forthwith upon demand be paid by merchant to carrier.

…

18. Freight and Charges (1) Freight and charges shall be paid in full and in cash and whether prepayable or payable at destination, shall be deemed as fully earned on receipt of the Goods by the Carrier and not be tetured (sic) or relinquished in any event.

…

(3) Merchant shall be jointly and severally liable to the Carrier for the payment of all freight and changes (sic) and for the performance of the obligation of each of them hereunder.

Given that the Bill of Lading was issued in Chennai, the notation “OBL SURRENDERED IN CHENNAI” meant that the only original was surrendered at the time of, or shortly after, its issuance.¹² The evidence does not reveal whom the original Bill of Lading was surrendered to.

Arrival of the Cargo

On 10 October 2019, the Vessel arrived in Singapore and berthed at a terminal operated by PSA Corporation Limited (“PSA”).¹³ The three Containers containing the Cargo were discharged from the Vessel, and she unberthed the next day (ie, 11 October 2019).¹⁴

On 14 October 2019, the plaintiff’s staff, Ms Priya Surredy (“Ms Priya”) contacted the 2nd defendant and informed him that: (a) the Cargo had arrived in Singapore, and (b) the 1st defendant had to pay S$1,000 before it could take delivery of the Cargo.¹⁵ On the same day, Ms Priya sent an email to the 1st defendant’s email address and attached the plaintiff’s invoice dated 14 October 2019.¹⁶ The plaintiff’s invoice contained details of the Vessel’s arrival, the Containers, and the shipper, and had a breakdown of the S$1,000 in charges that the plaintiff was seeking from the 1st defendant.¹⁷ The 1st defendant did not pay the plaintiff’s invoice.

Chasers for payment

On 23 October 2019, the 2nd defendant contacted the plaintiff’s director of operations, Mr Rajagopal Nirmal Kumar (“Mr Nirmal”), through WhatsApp Messager, and stated elliptically, “[t]oday payment will be made”. The relevant text exchange between Mr Nirmal and the 2nd defendant is reproduced below:¹⁸

9:31:31 AM [2nd defendant]:	Good morning Mr. Nirmal
9:35:35 AM [Mr Nirmal]:	Hi sir
9:35:35 AM [Mr Nirmal]:	May I know how [sic] is this
9:36:31 AM [2nd defendant]:	Mohamed Haja from KPRSG INTERNATIONAL
9:37:01 AM [Mr Nirmal]:	ok sir
9:39:31 AM [2nd defendant]:	Today payment will be made
9:44:18 AM [Mr Nirmal]:	ok sir

[emphasis added]

No payment was forthcoming. Thereafter, between 23 October 2019 and 19 November 2019, Mr Nirmal tried contacting the 2nd defendant on several occasions, albeit unsuccessfully.¹⁹ On 19 November 2019, Mr Nirmal wrote to the 1st defendant and stated, “[k]indly advise us the clearing status of the shipment”.²⁰ This email elicited no response.²¹

In the early afternoon on 3 December 2019, Mr Nirmal and the 2nd defendant exchanged a series of text and audio messages, pursuant to which copies of the Bill of Lading and the plaintiff’s revised invoice dated 3 December 2019 were sent to the 2nd defendant.²² In its latest invoice, the plaintiff sought S$23,443 from the 1st defendant, with the bulk of this sum attributable to container detention and port storage charges.²³

Later that afternoon on 3 December 2019, the 2nd defendant contacted the plaintiff’s senior director, Mr Krishnan Ganesh (“Mr Ganesh”), through WhatsApp Messager, and stated in a text message, “I have spoken to the concerned and it will be settled off in a short while”.²⁴ From this point onwards until 13 March 2020, the communications between the parties were mainly conducted through Mr Ganesh and the 2nd defendant in the form of text and audio messages.²⁵ Three matters ought to be noted from these communications. On or around 9 December 2019, it appears that the plaintiff received confirmation from Astromar, the shipper, that the Cargo would be cleared by 10 December 2019.²⁶ When this did not take place, the plaintiff emailed one Mr David from Astromar (with the 1st defendant kept in copy), and threatened the commencement of legal proceedings in the following terms:²⁷

Dear Mr David,

Please note After numerous reminders and phone calls after shipment arrived Singapore

We have received false confirmation from your end that shipment will be cleared on 10th December 2019

But seems there is no step taken till today

We have paid a huge amount as port storage until 10th Dec to Singapore port and now our deposit amount draining every day..

On the other side … container owner … chasing us for detention charges which is almost SGD20k+

If there is no response from shipper / consignee By today before 5 pm … our management decided to take legal procedure against consignee as per our BL to recover all our dues …

[emphasis added]

Second, the 2nd defendant sent numerous messages suggesting or stating that payment of the plaintiff’s invoice was forthcoming.²⁸ The parties provided differing accounts on whether these were fraudulent misrepresentations by the 2nd defendant that he would pay the plaintiff and take delivery of the Cargo. I consider these messages in greater detail below at [62] to [69],...