Hyosung (HK) Ltd v Owners of the Ship or Vessel `Hilal I`

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 07 December 2000
• Neutral Citation: [2000] SGHC 268
• Docket Number: Admiralty In Rem No 221 of 1998
• Date: 07 December 2000
• Year: 2000
• Published date: 19 September 2003
• Plaintiff Counsel: Srivathsan Rajagopalan and Subashini Narayanasamy (Haridass Ho & Partners)
• Citation: [2000] SGHC 268
• Defendant Counsel: Ian Koh and Bryan Tan Kuan Ho (Drew & Napier)
• Court: High Court (Singapore)
• Subject Matter: Relevant considerations,s 6 International Arbitration Act (Cap 143A),Release of arrested vessel following stay of proceedings,Admiralty and Shipping,Admiralty jurisdiction and arrest,Stay of proceedings in favour of arbitration -Whether arbitration clause in charterparty incorporated into bill of lading

: The plaintiffs commenced this admiralty action-in-rem against the defendants for breach of duty in contract and tort in respect of 9,000 metric tons of urea from a shipment of 28,000 metric tons on board the defendants` vessel. The plaintiffs claimed under a bill of lading dated 24 February 1997. The writ was filed on 30 March 1998.

The plaintiffs arrested the defendants` vessel the `Hilal I` on 14 October 2000. The action was brought under s 4(4)(a) of the High Court (Admiralty Jurisdiction) Act (Cap 123) in respect of a claim falling under s 3(1)(g) and (h) of the Act.

The defendants applied to stay the action in favour of arbitration in London pursuant to an express arbitration clause. By the same summons-in-chambers the defendants also prayed that the `Hilal I` be released and the arrest set aside.

The assistant registrar granted an order for the stay of proceedings but made no order on the defendants` application for the release of the vessel, the effect of which, effectively, was to refuse the application. The plaintiffs appealed against the order for stay of proceedings and the defendants appealed against the refusal to order a release of the vessel. The defendants also, unnecessarily in my view, filed a further summons-in-chambers praying afresh for the release of the vessel.

Mr Srivathsan appeared for the plaintiffs and submitted that the defendants had no grounds for supposing that there was an express arbitration clause. His submission was as follows. The clause relied upon by the defendants is found in the bill of lading and it provided that `all terms, conditions, exceptions and clauses [including] arbitration clause as per charterparty dated 7 February 1997`. The relevant clause in the charterparty provided as follows:

Any dispute arising under this charterparty to be referred to arbitration in London and English Law and the LMAA Rules shall apply ...

Mr Srivathsan pointed out that the charterparty in which the above clause was found was dated 6 February 1997. It was not the document dated 7 February 1997 referred to in the bill of lading. Counsel referred me to The Merak [1965] 1 All ER 230 and The Annefield [1971] P 168 both authorities I had considered in my decision in L & M Concrete Specialists Pte Ltd v United Eng Contractors Pte Ltd [2000] 4 SLR 441 . Mr Srivathsan`s point was that only a clear and error free clause will suffice to incorporate an arbitration clause from a charterparty into the bill of lading.

Mr Koh, counsel for the defendants, relied on The Nerano [1996] 1 Lloyd`s Rep 1, argued that they, like the parties in The Nerano , have not merely used general words of incorporation. They had expressly referred to the incorporation of the arbitration clause itself into the bill of lading. The only issue, it seemed, was whether the reference to the charterparty as `the charterparty dated 7 February 1997` invalidated the incorporation on account that a different document was contemplated. Mr Koh referred to the affidavit of Mr Bryan Tan filed on 31 October 2000 on behalf of the defendants whereby a letter dated 26 October 2000 was exhibited. It was a letter faxed by the solicitors for the charterers stating that the charterers confirm that there was only one charterparty in question that was the one dated 6 February 1997. It also acknowledged the error of referring to it as the `Charter Party dated 7 February 1997`.

No affidavit was filed on behalf of the plaintiffs challenging Mr Tan`s affidavit. In this case I am satisfied that the error was a typographical one which I would have granted leave to the defendants to rectify, especially in the absence of any evidence to the contrary intention of the parties concerned that the charterparty referred to was that of 6 February 1997.

In the L & M case the letter of award referred to a document called `Standard Conditions of Sub-Contract`, a document that was neither signed nor given to the defendants in that case....