Gericke Pte Ltd v Nortrans Shipping Pool Pte Ltd (Dah Chong Industries Pte Ltd, Third Party)

• Judgment Date: 31 July 1997
• Date: 31 July 1997
• Docket Number: Suit No 1973 of 1995
• Court: High Court (Singapore)

Gericke Pte Ltd

Plaintiff

and

Nortrans Shipping Pool Pte Ltd (Dah Chong Industries Pte Ltd, third party)

Defendant

[1997] SGHC 204

Tan Lee Meng JC

Suit No 1973 of 1995

High Court

Admiralty and Shipping–Bills of lading–Hague-Visby Rules–Whether damage to vessel and wharf during loading of cargo leading to shipper's liability to indemnify–The Schedule Art IV r 3 Carriage of Goods by Sea Act (Cap 33, 1998 Rev Ed)–Admiralty and Shipping–Carriage of goods by sea–Voyage charterparties–Liens –Contractual lien under bill of lading–Whether lien over cargo properly exercised

The plaintiff shipped a tilting platform from Singapore to Laem Chabang in Thailand on board the Hamlet Arabia. The plaintiff's cargo was shipped under a bill of lading which provided that the carrier “shall have a general lien on the goods … for all sums payable to the carrier under this contract …”. As the plaintiff's cargo was not delivered at the port of delivery, the plaintiff claimed damages from the defendant carrier, which was the time charterer of the vessel. The defendant counterclaimed against the plaintiff with respect to damage allegedly caused to the shipowner's crane and to the Port of Singapore Authority (“PSA”) wharf by the plaintiff's cargo when it fell from the said crane during loading (“the loading accident”). The defendant contended that the plaintiff's cargo fell from the said crane because it was considerably heavier than its declared weight.

After the plaintiff's cargo fell, the stevedores managed to load the slightly damaged tilting platform. However, when the vessel reached the port of delivery, the defendant claimed a lien on the plaintiff's cargo and refused to deliver the tilting platform unless a bank guarantee of US$202,678 was furnished by the plaintiff as security for claims which might arise from the loading accident. Pressured by its clients, the plaintiff ordered another tilting platform from a Thai factory and subsequently sued the defendant for non-delivery of the cargo.

Held, allowing the claim and dismissing the counterclaim:

(1) Whether the plaintiff was entitled to damages for breach of contract depended on whether the defendant had a lien on the plaintiff's cargo, and if it did, on whether it had exercised its lien properly: at [6].

(2) The exercise of a contractual lien had to be within reasonable limits. A shipowner who relied on a lien clause had to be careful enough to insist on the payment of sums properly ascertained. In the present case, even if the defendant had a lien, it had not been properly exercised because the amount demanded by way of a bank guarantee was exorbitant. It did not always matter that the amount demanded by a person who claimed a lien was out of proportion to his lien unless no particulars were given from which the right amount could be calculated or unless he made it clear that he insisted on the full amount claimed. In this case, the defendant furnished no particulars from which the right amount could be calculated and it insisted on the full amount claimed: at [7] to [9].

(3) As for the counterclaim, it was for the defendant to prove that its loss was caused by the plaintiff. Article IV r 3 of the Hague-Visby Rules provided that a shipper was not responsible for any loss or damage sustained by the carrier or the ship or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. In the present case, the actual weight of the tilting platform was not established and there was also no proper investigation into the cause or causes of the loading accident. As such, the defendant failed to prove that the loading accident was caused by the plaintiff's failure to provide accurate information with respect to the weight of the tilting platform and the counterclaim was dismissed: at [11], [12] and [16].

Albemarle Supply Company, Limited v Hind and Company [1928] 1 KB 307 (folld)

Boral Gas, The [1988] 1 Lloyd's Rep 342 (folld)

Lyle Shipping Company, Limited v Corporation of Cardiff; Churchill and Sim (Third Parties) (1899) 5 Com Cas 87 (folld)

Carriage of Goods by Sea Act (Cap 33, 1985 Rev Ed) The Schedule Art IV r 3 (consd)

Anthony Lee and Lye Kah Cheong (Bih Li & Lee) for the plaintiff

Abbas Ali bin Fakhruddin (Joseph Tan Jude Benny & Scott) for the defendant

Ravinran Kumaran (WT Woon & Co) for the third party.

Judgment reserved.

Tan Lee Meng JC

1 The plaintiffs, who shipped a tilting platform from Singapore to Laem Chabang in Thailand on board the Hamlet Arabia,claim damages from the defendants, the time charterers of the vessel, for failing to deliver the cargo at the port of delivery. The defendants have a counterclaim against the plaintiffs with respect to damage allegedly caused to the shipowner's crane and to the Port of Singapore Authority wharf at Pasir Panjang by the plaintiffs' cargo when it fell from the said crane while it was being loaded onto the vessel. It is the defendants' case that the cargo fell because it was much heavier than its declared weight. The plaintiffs contended that if they are liable to the defendants, they are entitled to an indemnity from the third party, the manufacturers of the tilting board, from whom the particulars regarding the weight of the tilting platform were obtained. During the trial, the plaintiffs withdrew their claim against the third party, who, in turn, withdrew their counterclaim against the plaintiffs with...