Olivine Electronics Pte Ltd v Seabridge Transport Pte Ltd

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 09 June 1995
• Neutral Citation: [1995] SGHC 145
• Docket Number: Suit No 1769 of 1994 (Registrar's Appeal No 17 of 1995)
• Date: 09 June 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Steven Chong and Thyaparan Kathiravel (Drew & Napier)
• Citation: [1995] SGHC 145
• Defendant Counsel: Loo Dip Seng (Ang & Pnrs)
• Court: High Court (Singapore)
• Subject Matter: Whether constituting a document of title,Whether it needed to be surrendered for delivery of cargo,Bills of lading,Bills of lading as document of title,Straight consigned bill of lading,Review of authorities,Admiralty and Shipping

The plaintiffs are a company incorporated in Singapore and are engaged inter alia in the export of colour television sets.

The defendants are a company incorporated in Singapore and are engaged in the business of forwarding, packing, crating and shipping agency services.

In or about March 1994, the plaintiffs agreed to sell 320 colour television sets (the cargo) to Orient Plus (Khabarovsk) Pte Ltd (Orient Plus) 680009 Khabarovsk Prospect, 60 Letia Oktiabria D-24 Russia, for US$85,780.00 (the contract of sale).

Pursuant to the contract of sale, the plaintiffs entered into a contract of carriage of the cargo from Singapore to Vostochny, Russia. The contract of carriage is contained in and evidenced by bill of lading No W6930472 (the bill of lading).

On or about 30 March 1994, the defendants shipped the cargo on board the vessel `Leeward` and issued the bill of lading acknowledging receipt of the two containers containing the cargo.

It was stated in the bill of lading that the plaintiffs were the shipper and Orient Plus the consignee and the notify party. The bill of lading also stated `In witness whereof one (1) original bill of lading has been signed if not otherwise stated above, the same being accomplished the other(s), if any, to be void. If required by the carrier one (1) original bill of lading must be surrendered duly endorsed in exchange for the goods or delivery order.`

On the arrival of the cargo at Vostochny, it was delivered by the defendants or their servants or agents to Orient Plus on 19 April 1994 without production of the bill of lading. The plaintiffs have not received payment in respect of the cargo.

On 3 November 1994, the plaintiffs commenced these proceedings. On 23 November 1994, the plaintiffs applied for judgment under O 14 of the Rules of the Supreme Court 1990. On 6 January 1995, the assistant registrar granted the defendants leave to defend on condition that they furnish a bank guarantee for US$80,000 within 21 days with costs in the cause. Against that order both the plaintiffs and defendants appealed. Both appeals came before me on 18 April 1995. I dismissed the appeals with costs reserved to the trial judge. I extended the time for furnishing the bank guarantee to 21 days from the date of my order. The defendants have appealed against my order dismissing their appeal. I now give my reasons.

It was the plaintiffs` case that in releasing the cargo without production of the bill of lading which remained in the possession of the plaintiffs, the defendants were in breach of the contract of carriage implied and or express. In the alternative the plaintiffs contended that the defendants were liable to them for conversion.

The defendants, on the other hand, contended that as the bill of lading was made out to a named consignee, Orient Plus, it was not a document of title. Consequently, the delivery of the cargo to the named consignee without production of the bill of lading which was in accordance with the practice and custom of the port of Vostochny, was not a breach of contract nor would it render them liable for conversion.

Implied term

In the case where the bill of lading is made out ` to order ` the law is clear. If the carrier releases the goods not against production of the bill of lading, the carrier is liable for breach of contract and for conversion. See Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd where at p 586 Lord Denning, in delivering the judgment of the Privy Council, said:

It is perfectly clear law that a shipowner who delivers without production of the bill of lading does so at his peril. The contract is to deliver, on production of the bill of lading, to the person entitled under the bill of lading. In this case it was `unto order or his or their assigns,` that is to say, to the order of the Rambler Cycle Co, if they had not assigned the bill of lading, or to their assigns, if they had.

The defendants contended that whilst the Rambler Cycle case1 might be the law on bills of lading made out ` to order ` or ` to bearer `, it did not apply to a straight consigned bill which is one with a named consignee. They relied on Benjamin`s Sale of Goods (4th Ed) p 925 para 18-010 which reads:

A straight consigned bill is one that makes the goods deliverable to a named consignee and either contains no words importing transferability or contains words negativing transferability (such as `not transferable` or, somewhat inaccurately, `not negotiable`). Sea waybills are documents of this kind.

Two things follow from the fact that a document of this kind is not transferable. First, the consignee (if in possession of the document) cannot, by purporting to transfer it, impose on the carrier a legal obligation to deliver the goods to another person. Secondly, the shipper cannot oblige the carrier to deliver the goods to a different consignee from the one named merely by altering the bill of lading; for under a straight consigned bill the carrier is entitled and bound to deliver the goods to the originally named consignee without production of the bill, ... .

For this proposition of law, Benjamin cites no authority in support. On the other hand, Schmitthoff`s Export Trade (9th Ed) at p 572 states:

In the modern bill of lading a box on the left-hand corner of the bill usually provides: `Consignee (if `order` state notify party)`

If the shipper intends to obtain a negotiable bill he completes this box by inserting `order` and adding as `notify party` the name of the consignee.

A shipper who wishes to obtain a bill...