Jurong Port Pte Ltd v Huationg Inland Transport Service Pte Ltd

• Jurisdiction: Singapore
• Judge: Leslie Chew
• Judgment Date: 23 February 2009
• Neutral Citation: [2009] SGDC 57
• Court: District Court (Singapore)
• Published date: 20 March 2009
• Citation: [2009] SGDC 57
• Plaintiff Counsel: Loo Dip Seng/Leong Lu Yuan (Ang & Partners)
• Defendant Counsel: Patrick Chin (Chin Patrick & Co)
• Year: 2009

23 February 2009

District Judge Leslie Chew:

Background

1. This is a Registrar’s Appeal. The Defendants appeal against the decision of the Deputy Registrar granting Judgment to the Plaintiffs. The Plaintiffs’ action is against the Defendant for an indemnity pursuant to a contract entered between the Plaintiffs and the Defendants on 14 April 2004, which term thereunder was subsequently extended by an exchange of correspondence (‘the Contract’). In the action the Plaintiffs claimed two sums, namely $150,000.00 and $23,358.75 together with interest and costs with an alternative prayer for damages.

2. Subsequently the Plaintiffs applied by SUM No. 4584 of 2008 and obtained an order for a determination of the following issues under O 33 r. 5 of the Rules of Courts:

(A) What is the ambit of the following terms of the Contract pleaded in paragraph 3 of the Statement of Claim –

“Conditions of Contract

13(1) The Contractor shall be solely liable for and shall indemnify the Employer in respect of any liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of personal injury to or the death of any person whomsoever arising out of or in the course of or caused by the execution of the Works.

Specifications

23a. The Contractor shall be fully responsible for all injuries (fatal or otherwise) and loss or damages to properties including cargo and/or or the Employer’s property caused by the acts, defaults, omissions or negligence of the Contractor, their servants, or agents and the Employer shall be exempted from all liabilities for any injury, loss or damage arising directly or indirectly from the Contractor’s performance of the obligation under this Contract and the Contractor shall indemnify, defend and keep the Employer fully indemnified from and against all penalties, costs, claims, demands action and proceedings which may be made against the Employer or which the Employer may incur by reason of or in any way connected with this Contract.

b. The Contractor shall be fully responsible for any lost, claim proceeding or demand in respect of personal injury to or death or any person arising out of or in the course of or in the course of or caused by or in any way connected with the performance of the obligations under this Contract and in respect of any damage or loss to any property real or personal whether belonging to the Employer or otherwise (including cargo and contents therein handled by the Contractor) arising out of or in the course of or in any way connected with the performance of the obligations under this Contract.

c. The relevant provisions of all Acts, regulations and other statutory enactment and Jurong Port’s Safety Regulations made thereunder in force from time to time shall apply and the Contractor must comply with and must instruct and ensure that his employees and workmen do likewise. The Contractor shall be responsible for any non-compliance of such Acts, Regulations etc and indemnify and save the Employer harmless in this respect.

d. Notwithstanding that the Employer may have overall supervision of operations generally in the Port or may have given instructions to the Contractor’s servants or agents in the absence of such instructions by the Contractor, the Employer shall not be responsible for the act defaults or omissions of the Contractor’s servants or agents or for the manner in which work is carried out and such supervision or instructions shall not take such servants or agents out of the control of the Contractor who must indemnify, defend and save the Employer harmless from and against all demands claim action proceedings.

e. The Contractor shall be deemed to be the SOLE employer of the personnel supplied pursuant to this Contract and the Employer shall be exempted from all liabilities for any injury (fatal or otherwise) caused to any such personnel or to any other persons arising directly or indirectly from the performance of the obligations under this Contract and the Contractor must defend indemnify and save the Employer harmless.

(B) Whether the indemnity provided for by reason of the aforesaid terms of contract extends to and cover the consequences of an event brought about or caused by the negligence of an employee of the Plaintiffs?

3. The facts giving rise to the claim by the Plaintiffs are not in dispute. As a result of an industrial accident at the Plaintiffs port facility, the driver of a prime mover, an employee of the Defendants died. It was agreed by an agreed statement of facts, amongst other things, that ‘the death of the employee was caused by or the result of the negligence of the Plaintiff’s employee.’ There was a claim by the deceased’s estate and his dependants against the Plaintiffs. The Plaintiffs subsequently settled the claim by paying the sum of $150,000.00 as damages and costs of $23,358.75. Hence the claim for indemnity against the Defendants in terms of those sums.

The Arguments

4. Briefly the Plaintiffs argued as follows:

a. Clauses 13(1) and 23 of the Contract are exclusion and indemnity clauses.

b. Such clauses are recognized and upheld under our law.

c. The loss suffered and claimed by the Plaintiffs fall squarely within the ambit of the indemnity clauses as the loss arose out of or was caused by the execution of the works under the contract.

d. Based on the above interpretation of Clauses 13(1) and 23 of the Contract, judgment should be entered in Plaintiffs’ favour as claimed.

5. The Defendants argued otherwise and the gist of their arguments may be summarized as follows:

a. The terms of Clauses 13(1) and 23 of the Contract are not as clear as they should be in order to exclude Plaintiffs’ liability in these circumstances and to impose upon the Defendants the obligation to indemnify the Plaintiffs as claimed.

b. The clauses being unclear in expression and their language, they ought to be interpreted contra proferentum against the Plaintiffs.

c. By reason of the above, and taking the Contract as a whole, it could not have been intended by these Clauses that the Plaintiffs should be exempted from liability arising from loss caused by the negligence of the Plaintiffs’ own employee or that the Defendants are obliged to indemnify the Plaintiffs in these circumstances.

d. Accordingly, the claims by the Plaintiffs should be dismissed.

My Decision

6. I accept the law with respect to the interpretation of Clauses 13(1) and 23 of Contract as exclusion/exemption and indemnity clauses as submitted by the Plaintiffs. The Plaintiffs referred to the case of Marina Centre Holdings Pte Ltd v Pars Carpet Gallery [1997] 3 SLR 625 which is of course binding on this court. Exemption and indemnity clauses are, as the Plaintiffs pointed out well recognized and enforceable under our law. The crux of the matter however, is whether the language of the two clauses are adequately clear and unambiguous to be capable of being interpreted as excluding the liability of the Plaintiffs and to give rise to the Defendants’ obligation to indemnify the Plaintiffs.

7. The Defendants argued that these two clauses do not clearly provide for the effect the Plaintiffs argued for. First they say these clauses are unclear. Second, since the language in the clauses are unclear they ought to be interpreted contra proferentum...