KMA Abdul Rahim and Another v The Lexa Maersk (Owners) and Others

• Jurisdiction: Singapore
• Judge: Choor Singh J
• Judgment Date: 31 August 1973
• Neutral Citation: [1973] SGHC 22
• Docket Number: Admiralty in Rem Suits Nos 109, 1961 and 2479 of 1968 (Consolidated)
• Date: 31 August 1973
• Published date: 19 September 2003
• Year: 1973
• Plaintiff Counsel: M Karthigesu and Harold Tan (Allen & Gledhill)
• Citation: [1973] SGHC 22
• Defendant Counsel: KE Hilborne (Hilborne & Co),KA O'Connor (Drew & Napier)
• Court: High Court (Singapore)
• Subject Matter: Applicability of Hague Rules,Liability of lighterers whose lighters carried goods from ship to godown,Tort,Bailees for reward,Liability of carriers,Negligence,Voyage charterparties,Liability of lighterers whose lighters carried goods from ships to godown,Causation,Duty of care,Admiralty and Shipping,Carriage of goods by sea,Meaning of 'discharge',Damage to goods

These three consolidated actions were commenced by the plaintiffs in 1968 and in each of them they claimed damages in respect of the damage to their goods which were shipped from Karachi to Singapore on board two ships owned by Dampskibsselskabet AF 1912, Aktieselskab (hereinafter referred to as the first defendants). Vayna Suppiah & Sons (hereinafter referred to as the second defendants) are lighterers and their lighters were used to convey the said goods from the said ships, when they were anchored in the outer roads, to the Port of Singapore Authority godowns.

The facts are these. Under seven bills of lading, particulars whereof are given in the plaintiffs` statement of claim, there were shipped from Karachi, in apparent good order and condition, nylon piece goods on board the vessel Lars Maersk for carriage to and delivery at Singapore. These seven bills of lading are the subject matter of the In Rem Admiralty Suit No 109 of 1968 which is against the first defendants.

Under two bills of lading, particulars whereof are given in the plaintiffs` statement of claim, there were shipped from Karachi, in apparent good order and condition on board the vessel Jens Maersk, 400 bales of bleached white cotton cambric and nine cases containing 12,802 yards metallic fancy shirting for carriage to and delivery at Singapore. These bills of lading are the subject matter of Suit No 2479 of 1968 which is against both defendants.

The third Suit is No 1961 of 1968 which is against the second defendants for damages for breach of duty and negligence in the carriage of the aforesaid goods.

The Lars Maersk and the Jens Maersk are sister ships owned by the first defendants who also own the Lexa Maersk which was seized by the plaintiffs in Singapore and released upon a guarantee in lieu of bail having been given by the first defendants.

The Lars Maersk arrived in Singapore on or about 29 November 1967 and anchored in the outer roads of the eastern anchorage from where all the cargo deliverable at Singapore unloaded into the second defendants` lighters and conveyed to the Port of Singapore Authority wharves and discharged into Godown No 19 for the purpose of delivery.

The Jens Maersk arrived in Singapore on or about 24 December 1967 and anchored in the outer roads of the eastern anchorage from where all the cargo deliverable at Singapore was unloaded into lighters and conveyed to the Port of Singapore Authority wharves and discharged into Godowns 20 A/D and R for the purpose of delivery.

On 4 and 5 January 1968 the agents of the plaintiffs went to PSA Godown No 19 for the purpose of taking delivery of the said goods ex the Lars Maersk and found that almost all the wooden packing cases in which the said goods were packed showed external dry stains and some external damage. They called for a survey before taking delivery and after a joint survey they took delivery of 121 cases of the said goods. On these 121 cases being opened internal dry stains were found in the wooden packing cases and the goods were all stained throughout to varying degrees. The plaintiffs contended at the trial that the staining of the wooden packing cases and of the goods were caused by sea water and the extent of sea water damage was claimed to be sixty-five per cent.

On 17 January 1968 the agents of the plaintiffs went to PSA Godowns 20 A/D and R for the purpose of taking delivery of the goods ex the Jens Maersk and found that some of the bales covered by the bill of lading No 10 were dry stained and most of the wooden cases in which the metallic fancy shirting covered by the bill of lading No 53 were packed were externally dry stained and damaged. They called for a survey before taking delivery and after a joint survey they took delivery of the 400 bales and the nine cases covered by bills of lading Nos 10 and 53 respectively. When these 400 bales and nine cases were opened and further examined it was found that the contents of 65 bales were dry stained and five out of the nine cases were internally dry stained and their contents were also dry stained in varying degrees. The plaintiffs contended at the trial that the staining of the contents of the said 65 bales and of the contents of the five cases was caused by sea water and the extent of the sea water damage was claimed to be sixty-five per cent.

The plaintiffs claimed for breach of contract the sum of $108,233.44. Alternatively they claimed damages and interest and costs.

The plaintiffs` case was that by the terms of the bills of lading the first defendants had acknowledged that the said goods had been shipped on board their vessels in apparent good order and condition unless otherwise indicated thereon; that there was no statement in any of the said bills of lading to the effect that the said goods when shipped on the Lars Maersk and Jens Maersk were otherwise than in apparent good order and condition; that the first defendants by the terms of the said bills of lading undertook to deliver the said goods in the same good order and condition as they were in when shipped; that it was the duty of the first defendants to deliver the said goods in the same good order and condition as they were in when shipped and that they had failed to do so.

The plaintiffs claimed that the second defendants as lighterers were the agents of the first defendants and whether the sea water damage occurred during the ocean carriage or during the lighter carriage the first defendants were nonetheless liable in damages to the plaintiffs.

The plaintiffs also contended that if, which they did not admit, the liability of the first defendants ceased on the goods being unloaded into the lighters of the second defendants from the vessels Lars Maersk and Jens Maersk in the outer roads of the eastern anchorage and the sea water damage to the goods occurred during the lighter carriage, it was the duty of the second defendants to exercise due care and diligence in conveying the said goods from the side of the Lars Maersk and Jens Maersk respectively and discharging the said goods into the godowns of the PSA. The plaintiffs claimed that in breach of the said duty the second defendants did not safely or securely convey the goods from the side of the Lars Maersk and Jens Maersk and discharge the goods into the godowns of the PSA and by their want of due care and diligence allowed the said goods to be damaged by sea water in consequence of which the second defendants were liable for the damage caused to the goods.

The first defendants denied that any damage occurred while the goods were in their custody. They contended that if such damage did occur, then it occurred while the goods were in the custody of the second defendants or of the Port of Singapore Authority or of the plaintiffs.

The first defendants denied that the second defendants were their servants or agents. They contended that the second defendants were independent contractors for whose negligence they were not responsible.

The first defendants claimed that their liability, if any, ceased when the goods were discharged from their vessels.

The second defendants denied that the goods were damaged by sea water or at all while being loaded into, carried or discharged from their lighters. They denied that the goods were damaged by sea water or at all during conveyance from the vessels to the wharves of the PSA. They maintained that they did not owe any duty to the plaintiffs, contractual, or otherwise, and that if they did owe any such duty, they were not in breach of it.

The first defendants having disputed the plaintiffs` claim on the aforesaid grounds, asserted that in the event of their being held liable to the plaintiffs, they were entitled to be indemnified by the second defendants against the plaintiffs` claim. In the alternative, they claimed that they were entitled to damages for breach of contract and/or duty on the part of the second defendants, such damages to include any damages and interest awarded to the plaintiffs and all costs incurred by the first defendants in defending this action.

The first defendants` case against the second defendants was that the second defendants having been engaged as independent contractors, it was an express and/or implied term of their engagement that they would convey the goods with reasonable care and skill and deliver them at the wharves or godowns of the PSA in the same order and condition as they were in when they were delivered from the vessel into the custody of the second defendants. The first defendants claimed that the goods were delivered from the vessels into the custody of the second defendants in good order and condition and were subsequently conveyed from the side of the said vessels to the wharves of the PSA in the second defendants` own lighters. The first defendants claimed that if, which they did not admit, the goods were damaged when they were delivered to the said wharves of the PSA the second defendants were in breach of the aforesaid implied term and/or were negligent and/or in breach of duty. They cited the following particulars of the second defendants` breach of duty and /or negligence:

1 Failing to take adequate steps to protect the goods against loss or damage by rain and/or by sea water.

(2) Allowing the goods to be loaded on to their lighters and/or remain uncovered thereon when rain and/or discharge of water from the ship`s side was likely to occur. And the ocean carriers will rely upon the maxim res ipsa loquitur.

The second defendants denied that the goods were in good order and condition when they were delivered into their lighters. They denied that the damage to the goods arose from any breach of any implied term or negligence or breach of duty on their part.

A number of witnesses were called on both sides and lengthy submissions were made on behalf of all three parties. Both defendants strenuously denied liability. I accepted the evidence of the witnesses called by the plaintiffs, namely,...