Golden Shore Transportation Pte Ltd v UCO Bank and Another Appeal

JurisdictionSingapore
JudgeChao Hick Tin JA
Judgment Date23 October 2003
Neutral Citation[2003] SGCA 43
Docket NumberCivil Appeals Nos 53 and 55
Date23 October 2003
Year2003
Published date17 December 2003
Plaintiff CounselToh Kian Sing, John Seow and Aileen Boey (Rajah & Tann)
Citation[2003] SGCA 43
Defendant CounselSarjit Singh SC and Dylan Lee (Shook Lin & Bok)
CourtCourt of Appeal (Singapore)
Subject MatterDefendant applying for stay of proceedings in favour of contractual forum,Exclusive,Stay of proceedings,Clause providing that "Any claims that may arise hereunder must be made at the port of delivery for determination and settlement at that port only",Conflict of Laws,Factors to be considered,Plaintiff bringing action in breach of exclusive jurisdiction clause,Whether court should refuse to order stay of proceedings,Whether clause an exclusive jurisdiction clause,Civil Procedure,Choice of jurisdiction

Delivered by Chao Hick Tin JA

1 These are two appeals which raised before us an identical issue, namely, whether each of the two separate actions instituted in Singapore by the respondent, UCO Bank (“UCO”), against two shipowners, the appellants in the two appeals, for their wrongful delivery of cargo without the production of the relevant bills of lading (B/L), should be stayed on the ground that there is an exclusive jurisdiction clause in the B/Ls in favour of India.

2 Except in one respect which we need not go into, the facts surrounding the two actions are similar. Accordingly, the parties have argued before us on the basis that the ruling in Civil Appeal 55/2003 will apply to Civil Appeal 53/2003.

The background

3 UCO is an Indian bank carrying on business here through a local branch. One of its customers was SOM International Pte Ltd (“SOM”), a Singapore incorporated company. SOM was controlled by Mr Som Nath Sood (“Sood”). SOM arranged for cargoes to be shipped from various East Malaysian ports to the Port of Kandla in India. One set of cargo was loaded on board the “Asean Pioneer” owned by Golden Shore Transportation Pte Ltd (“Golden Shore”), the appellants in CA 55/2003. The appropriate B/Ls were issued for the shipment (“original bills”). Each B/L expressly stated on the front page that it is governed by the law of Singapore and the consignee is “to the order of UCO Bank”. The parties to be notified were SOM and UCO.

4 Pursuant to the application of SOM, letters of credit were issued by UCO to the sellers of the cargo. UCO eventually became the holders of the B/Ls. However, around the same time, SOM procured the issuance of a second set of B/Ls (“switched bills”) by promising to the shipowner, Golden Shore, that the original bills would be returned to them. In the switched bills, SOM was named as the shipper, instead of SOM’s suppliers. However, the original bills, which were held by UCO, were never returned to Golden Shore as promised by SOM. SOM never paid UCO to obtain the original bills.

5 The present action of UCO against Golden Shore is based entirely on the original bills which are still in their possession.

6 The switched bills were transferred by SOM to buyers in India. The vessel, Asean Pioneer, arrived at its destination on 15 January 2001 and the cargo was, between 15 and 25 January 2001, delivered to Indian receivers upon presentation of the switched bills.

7 After some six months, Golden Shore asked for the return of the original bills but UCO refused. UCO did not at any time, prior to this request for the return of the original bills, enquire about the shipment or ask for the delivery of the cargo. At the same time, UCO repeatedly asked SOM for repayment of the loan. On 20 December 2001, UCO, as holders of the B/L, instituted the present action.

8 On 11 January 2002, Golden Shore applied to have the action stayed on the ground that clause 17 of the B/L, which is an exclusive jurisdiction clause, required that any dispute between the parties has to be adjudicated upon at the port of delivery. The application first came before the Assistant Registrar, who ordered a stay. On appeal, the judge-in-chambers (“the Judge”), reversed that order and refused a stay.

Decision below

9 Before the High Court, two main issues arose for consideration. The first was whether clause 17 is, in fact, an exclusive jurisdiction clause. The second was, if the answer to the first issue was in the affirmative, whether there are exceptional circumstances indicating “strong cause”, such that the court should exercise its discretion in UCO’s favour and assist them in breaching the exclusive jurisdiction clause. The Judge answered both issues in the affirmative and refused to order a stay of the present proceeding.

Jurisdictional Clause

10 Before us, the same two issues were canvassed and we shall deal with each in turn. As the question on the scope of clause 17 is one of construction, it is necessary that we set it out in full in order that its effect could be appreciated:-

Claims. Any claims that may arise hereunder must be made at the port of delivery for determination and settlement at that port only. The Carrier’s liability in case of loss or damage to goods for which they are responsible within the limits of this Bill of Lading to be calculated on and in no case to exceed the net invoice cost and disbursement or pro rata on that basis in the event of partial loss or damage. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or their agents at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or if, the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the Carrier of the goods as described in the Bill of Lading. In any event, the Carrier shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.

In no circumstances shall liability exceed the actual loss or damage sustained, the carrier shall not be liable for any consequential or special damages and shall have the option of replacing any lost or damaged goods. Any sum paid to or recovered by Customs Authorities under any Bond for exportation given by the shippers or owners of goods shall not be considered to form part of any actual loss or damage sustained by or in connection with such goods for which the carrier is or shall be liable. If the ship comes into collision with another ship as a result of the negligence of the other ship or object and any act, neglect or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or object or the owners in so far as such loss or liability represents loss of, or damage to, any claim whatsoever of the owners of said goods, paid or payable by the other non-carrying ship or object or her owners to the owners of said goods and set off, recouped or recovered by the other or non-carrying ship or object or her owners as part of their claim against the carrying ship or Carrier. At any port where, in accordance with Customs regulations, the goods have to be landed into the charge of the Customs or other Authorities no claims for shortage or damage will be considered by the Carrier, beyond that noted by the Authorities at the time of receiving the goods into their charge.

In the case of any actual or apprehended loss or damage, the Carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods. The carrier shall not be liable to pay any compensation if the nature or the value of the goods has been wilfully mistated. The above includes claims in the nature of General Average.

This clause in its entirety shall also apply in any cause of loss sustained as a result of mis-delivery, non-delivery, wrongful delivery or delivery to any person whomsoever not entitled to the goods. (Emphasis added).

11 It is true that this clause is unlike some other jurisdiction clauses which we see in other cases. As an example, in The Jian He [2000] 1 SLR, a case which featured very prominently in the arguments of both parties, the jurisdiction clause read:-

“Jurisdiction: This Bill of Lading is governed by the laws of the People’s Republic of China. All disputes arising under or in connection with this Bill … shall be determined by the laws of the People’s Republic of China and any action against the carrier shall be brought before the Maritime Court in Guangzhou or Shanghai or Tianjin or Qingdao or Dalian where the principal place of business of the relevant company is situated.”

It cannot be denied that this clause in The Jian He is more explicit and there it was not really in dispute that the clause was an exclusive jurisdictional clause.

12 Similarly, in The Asian Plutus [1990] SLR 543, the jurisdiction clause was also very explicit and it read:-

“The contract evidenced by or contained in this bill of lading shall be governed by Japanese law, except as may be otherwise provided for herein and any action against the carrier thereunder shall be brought before the Tokyo District Court in Japan.”

13 However, it does not therefore follow that, just because the clause here is worded differently, it could not be such an exclusive jurisdiction clause. It is still necessary to construe the clause in its entirety to determine its real import.

Contentions of UCO

14 The main argument of UCO is that, looking at the clause as a whole, what it provides for is the place for “the notification and making of a claim for the purposes of the owner’s consideration and settlement.” In this regard, UCO relied on the opening words of the clause “claims … must be made at the port of delivery for determination and settlement at that port only.”

15 UCO also relied upon the word “suit” which appear later in the same paragraph of clause 17 to contend that the word “claim” in the opening sentence of that clause could not have been intended to mean “suit”. They submitted that it is a canon of construction that where different words are used in a document, they could not be construed to mean the same thing; a “suit” would connote a legal process and a “claim” does not necessarily connote that. It is entirely in line with common sense and practicality for a claim to be notified at the port of delivery. UCO argued that it is altogether another thing to say that just because a claim must be made at the port of delivery, an action must also be instituted at the same place. One does not necessarily follow from the other.

16 Moreover, UCO argued that if...

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