K Chellaram & Sons (FE) Ltd v Nissho Shipping Company Ltd and Another

• Jurisdiction: Singapore
• Judgment Date: 23 June 1967
• Date: 23 June 1967
• Docket Number: Suit No 1280 of 1965
• Court: High Court (Singapore)

K Chellaram & Sons (FE) Ltd

Plaintiff

and

Nissho Shipping Co Ltd and another

Defendant

[1967] SGHC 12

M Buttrose J

Suit No 1280 of 1965

High Court

Admiralty and Shipping–Bills of lading–Hague Rules–Clause excluding liability of carrier before and after discharge of goods–Whether clause nullified by Art III r 8 of Hague Rules–Article II r 8 of Hague Rules providing that clause relieving carrier from liability for loss in connection with goods arising from negligence to be null and void–Whether offending parts of bills of lading severable–Admiralty and Shipping–Carriage of goods by sea–Limitation of liabilities–Goods discharged from carrier and into possession of Port of Singapore Authority–Failure to deliver three cases of goods–Section 88 of the Port of Singapore Ordinance 1963 (No 36 of 1963) providing that Port of Singapore Authority not liable for short delivery of goods deposited with it–Whether statute relieved Port of Singapore Authority from liability for failure to deliver goods–Whether statute placed liability on carrier

The plaintiff was the owner of certain goods. By two bills of lading, the first defendant acknowledged the shipment of these goods on its vessel. The bills of lading were subject to the Hague Rules. Upon arrival of the vessel in Singapore, the goods were discharged by the first defendant into the possession of the second defendant, the Port of Singapore Authority (“the Authority”). The second defendant failed to deliver three cases of goods to the plaintiff. The plaintiff company commenced action against the first defendant for breach of contract or duty in the carriage of three cases of goods by sea. Its alternative claim was against the second defendant for negligence in the care and custody of the three cases and for detinue or conversion.

The second plaintiff was a corporate body established under Port of Singapore Authority Ordinance 1963 (No 36 of 1963) (“the Ordinance”). Section 88 of the Ordinance provided that the Authority was deemed to be the agent of the owner of the vessel discharging goods and would not be liable for damage caused by short delivery. The parties, pursuant to O XXXIII of The Rules of the Supreme Court 1934, presented two questions for the opinion of the court: (a) whether the second defendant was relieved of liability to the plaintiff in respect of the three cases of goods; and (b) whether the first defendant was relieved of liability to the plaintiff in respect of these goods.

Held, dismissing the plaintiff's claims against the first and second defendants:

(1) Before the coming into force of the Ordinance, the first defendants would not be liable as the carrier's responsibility under the Hague Rules ceased on the discharge of the goods from the ship, and the second defendant would be liable in an action in tort for detinue or conversion. However, s 88 of the Ordinance freed the second defendant from all liability by introducing the notion of agency. The plaintiff must be taken to be aware of the provisions in the Ordinance and it was open for it to insure its goods. The first question was thus answered in the affirmative: at [21] and [23].

(2) While s 88 of the Ordinance limited the Authority's liability, it was not concerned with placing liability on the first defendant. In addition, the bills of lading contained a limitation or exclusion of liability clause. There was nothing objectionable to such an exclusion clause under the Hague Rules. The Hague Rules applied only from loading to discharge. Once the goods were discharged from the first defendant's ship, the Hague Rules ceased to affect the matter and the position of the parties was governed by the contract of carriage and was not affected by s 88 of the Ordinance: at [26] to [29].

(3) Clause 15 of the bill of lading was not nullified by the Hague Rules. While the provision as to lifting the goods from and leaving them on the ship's deck by shore cranes purported to relieve the carrier from liability before the goods were discharged, it was severable from the other parts of the clause. The remaining portion of the clause concerning discharge by ship's tackle was not repugnant to the Hague Rules and the carrier was thus afforded complete protection. Hence, the second question was also answered in the affirmative: at [36] to [40].

Chartered Bank of India, Australia and China v British India Steam Navigation Co [1909] AC 369 (folld)

Renton v Palmyra [1956] 1 QB 462 (refd)

Svenska Trakt Akt v Maritime Agencies (Southampton) [1953] 2 QB 295 (folld)

Port of Singapore Authority Ordinance 1963 (No 36 of1963)ss 88 (1), 88 (2) (consd);ss 89,96 (1),128 (2),131

Rules of the Supreme Court 1934 , TheO XXXIII

M Karthigesu (Allen & Gledhill) for the plaintiff

A P Godwin and J Grimberg (Drew & Napier) for the first defendant

T H A Potts (Rodyk & Davidson) for the second defendant.

M Buttrose J

1 In this action the plaintiff claimed damages from the first defendant for breach of contract or duty in and about the carriage of three cases of goods (hereinafter referred to as “the said three cases”) by sea and/or conversion and in the alternative against the second defendant for negligence in the care and custody of the said three cases and for wrongfully detaining and/or converting the same. The parties concurred in stating questions of law arising therein in the form of a special case for the opinion of the court under O XXXIII of the Rules of the Supreme Court 1934.

2 The special case is as follows:

1. 1 By two bills of lading No KS-25 and KS-37 both dated 15 October 1964 (hereinafter called 'the said bills of lading') the first defendant acknowledge the shipment by Iwai & Co Ltd of Osaka on the first defendants vessel Shohaku Maru (hereinafter called 'the vessel') at Kobe of the five cases therein mentioned (hereinafter referred to as 'the said goods') and agreed to deliver the same at Singapore to order and to the order of The Bank of India Ltd respectively. Copies of the said bills of lading are annexed hereto as Appendices A and B and form part of this case. The said goods included the said three cases.

2. 2 The contracts evidenced by the said bills of lading were subject to all the terms provisions and conditions of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading signed at Brussels on 25 August 1924 (hereinafter referred to as 'the Hague Rules').

3. 3 The said goods were duly shipped as aforesaid and the said vessel arrived in Singapore and docked alongside Godowns 40 and 41 of the second defendant on 7 November 1964.

4. 4 For the purpose of this special case and not otherwise it is agreed that the plaintiff was at all material times the owner of the said goods and was further the endorsee of the said bills of lading to whom the property in the said goods passed upon or by reason of such endorsement.

5. 5 For the purpose of this special case and not otherwise the said goods are to be, regarded as having...