Planmarine AG v Maritime and Port Authority of Singapore

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeKarthigesu JA
Judgment Date10 March 1999
Neutral Citation[1999] SGCA 16
Citation[1999] SGCA 16
Docket NumberCivil Appeal No 166 of 1998
Defendant CounselSteven Chong SC and Colin Seah (Rajah & Tann)
Plaintiff CounselBelinda Ang SC (Ang & Partners)
Publication Date21 October 2003
SubjectIntention of Parliament,s 9A Interpretation Act (Cap 1),Port dues as part of sheriff's expenses,Statutory Interpretation,Whether ambiguity necessary before purposive approach is adopted,Sheriff's expenses,Reference to Parliamentary speech,Purposive approach,Construction of statute,Admiralty and Shipping,whether discretion is unjust to arresting solicitors,Discretion of court to enlarge category of sheriff's expenses,Legal and equitable basis for such practice

1 This was an appeal against the decision of the High Court dismissing an application for an order that the sheriff be directed not to pay out any money from the proceeds of sale of the vessel Hurst towards payment of port dues charged by the Maritime and Port Authority of Singapore (“MPA”). We heard the appeal on 26 January 1999 and dismissed it. We now give our reasons.

The facts

2 It was Christmas day when the Hurst arrived in Singapore in 1996. She remained in port until she was arrested on 14 March 1997 by Sinwa (Singapore) Pte Ltd (“Sinwa”), the plaintiffs in the court below, who commenced the admiralty action against the owners of the Hurst for the recovery of unpaid price of goods and materials supplied to the vessel.

3 On 11 April 1997, Sinwa obtained judgment in default of appearance. Sinwa also obtained on the same day, an order of the court (“sale order”) for the Hurst to be sold. Paragraph 2 of the order for sale provided that the proceeds of sale, if it exceeded the sum of $250,000 after deducting sheriff’s commission, expenses and Port of Singapore Authority port dues should be paid into court.

4 On 1 July 1997, the Hurst was sold for $1.9m. After the sale, the MPA raised its bill of $433,755 for port dues for the period 2 March 1997 to 1 July 1997. Port dues for the period 25 December 1996 to 1 March 1997 amounting to $88,476.50 had been paid by the owner’s previous agent. The sum of $433,755 was derived in the following manner:

(a) For the period 2 March to 14 March 1997, the MPA claimed port dues based on the rates prescribed in para 1(b) of Item 1 of s I of the Schedule to the Port of Singapore Authority (Scales of Dues and Rates) Notification 1994 (Cap 236) as amended by para 3 of the Port of Singapore Authority (Scales of Dues and Rates) (Amendment) Notification 1995 (Cap 236) (‘the 1994 PSA Notification’).

(b) For the period 15 March to 8 April 1997, the port dues were also based on the rates prescribed in para 1(b) of Item 1 of s I of the Schedule to the 1994 PSA Notification, but capped by the MPA as a matter of policy at the rate of $30 per 100 GT or part thereof per 24 hours or part thereof. It was then part of the MPA’s policy to cap the rate of port dues charged for arrested vessels at the rate applicable at the date of arrest if the vessel had been in port for more than 72 hours (“the arrest policy”). As a result of applying the arrest policy and capping the port dues rate, the MPA waived port dues amounting to $26,775.

(c) For the period 9 April to 1 July 1997, the MPA claimed port dues based on para 3(1)(b) of the Schedule to the Maritime and Port Authority of Singapore (Scales of Dues, Rates and General Fees) Notification 1997 (Cap 170A) (‘the 1997 MPA Notification’). Under para 3(1)(b) of the Schedule to the 1997 MPA Notification, the rate of port dues payable was the rate applicable under para 1(a) of the Schedule to the 1997 MPA Notification, which was $30 per 100 GT or part thereof per 24 hours or part thereof.

5 The appellants are a company by the name of Planmarine AG. On 17 December 1996, a mortgage was created in the Bahamas in favour of the appellants pursuant to a guarantee executed by the owners of the Hurst. It was only towards the end of May 1997 that the appellants learned that the Hurst had been arrested in Singapore and ordered to be sold. On 6 June 1997, the appellants as mortgagees made a demand for payment of the mortgage debt of USD67,001,156.63 from the owners of the Hurst (“mortgage claim”).

6 On 30 July 1997, the appellants as interveners in the admiralty proceedings, filed an application by way of SIC 5791/97 for the following orders:

(a) A direction that the sheriff not pay out from the proceeds of sale, all or any part of the outstanding port dues charged by the MPA.

(b) Paragraph 2 of the sale order be varied to exclude port dues as an item of sheriff’s expenses.

(c) A declaration that the claim for port dues by the MPA does not have priority over other claims against the Hurst and her proceeds of sale.

The respondents are the MPA. The MPA was established on 2 February 1996 under the Maritime and Port Authority of Singapore Act (Cap 170A) (“MPA Act”) as a statutory board while the Port of Singapore Authority (“PSA”) was still in existence. The MPA was established to take over the powers and duties of the PSA to control and regulate the port of Singapore. The PSA was dissolved on 1 October 1997 when the Port of Singapore Authority (Dissolution) Act 1997 (No 6 of 1997) was brought into operation. Following the appellants’ application by way of summons-in-chambers, the MPA applied to intervene to resist the appellants’ application.

7 By the time the application was heard on 8 August 1997, the only parties interested in the balance of sale proceeds were the first and second interveners, Planmarine AG and the MPA. The other interested parties such as the crew had been paid off and Sinwa and other caveators whose claims had a low priority ranking had given up pursuit.

8 In separate proceedings commenced subsequently in respect of the mortgage claim, the appellants obtained judgment in default against the owners of the Hurst for the sum of USD26m with interest and costs. By a further order of court made on 27 March 1997, the sum of $989,137.67 was ordered to be paid out to the appellants from the sale proceeds in partial satisfaction of the default judgment.

Decision of the trial judge

9 The trial judge dismissed the appellants’ application. He was of the view that para 1(b) of Item 1 of s I of the Schedule to the 1994 PSA Notification applied to any vessel in port, whether under arrest or otherwise, and that port dues were payable by the Hurst under this provision from 2 March 1997 to 8 April 1997. He was also of the view that the phrase “where a vessel is arrested under the provision of any written law” in para 3(1) of the Schedule to the 1997 MPA Notification included any vessel which had at that time been arrested and that from 9 April 1997 onwards port dues were payable by the Hurst under para 3(1) of the Schedule to the 1997 MPA Notification.

10 On the issue of priority, the trial judge held that the MPA’s priority was not dependent on the exercise of their power to arrest a vessel under s 29 of the MPA Act. This was because the MPA was not seeking to arrest the vessel and was not claiming as a statutory lienee but on the basis of the order of court of 11 April 1997. The trial judge observed that the port authority has the ultimate discretion in deciding whether a vessel may enter and use the waters within its jurisdiction and was of the view that that power alone was sufficient reason why port dues should rank ahead of other claims.

The appeal

11 There were three issues for consideration in the appeal. First, whether port dues are payable to the MPA under the 1994 PSA notifications while the Hurst was under arrest from 14 March to 8 April 1997. Secondly, whether port dues are payable to the MPA under the 1997 MPA Notification while the Hurst was under arrest from 9 April 1997 to 1 July 1997. Thirdly, whether the MPA’s claim for port dues should be treated as part of the sheriff’s expenses and be paid out as such from the sale proceeds to the MPA in priority to all other claims.

Whether port dues are payable under the 1994 PSA Notification

12 The first issue was whether port dues are payable to the MPA under the 1994 PSA Notification. The main submission of Miss Belinda Ang, counsel for the appellants, was that port dues are in the nature of a tax and that in the absence of any prescribed port dues for arrested vessels in the 1994 PSA Notification, the MPA is not entitled to claim for port dues from the Hurst.

13 We were however unable to agree that the 1994 PSA Notification does not prescribe port dues for arrested vessels. As was pointed out by Mr Steven Chong, counsel for the respondents, the express wording of para 1 of Item 1 of s I of the Schedule to the 1994 PSA Notification makes it clear that dues are “payable in respect of vessels in the port” regardless of whether they are under arrest or not. The statutory scheme of the 1994 PSA Notification is such that all vessels “in port” must pay port dues as prescribed in para 1(b) unless a vessel is exempted from port dues under para 1(a) as a vessel belonging to the government or unless the vessel is specifically required to pay different rates. Since the Hurst was “in port” and did not fall into any of the exceptions, port dues would be payable as prescribed in para 1(b) of Item 1 of s I of the Schedule to the 1994 PSA Notification.

14 In support of her submission, Miss Ang argued that para 1(b) of Item 1 of s I of the Schedule to the 1994 PSA Notification is not applicable to arrested vessels because some previous PSA Notifications have made specific provision for port dues for arrested vessels whereas no such specific provision appears in the 1994 PSA Notification. However, while it is true that there was specific provision for port dues for arrested vessels in the PSA (Scale of Dues and Rates) Notifications 1985, 1987 and 1990, the reason for the specific provision was to differentiate between vessels laid up in port with the approval of the Port Master, as against vessels which were under arrest or laid up in port without the approval of the Port Master, and to provide for a higher rate of port dues in respect of the latter. For example, Item 1(c)(i) of s I of the Schedule to the Port of Singapore Authority (Scale of Dues and Rates) Notification 1990 (Cap 236) provides that the rate for vessels of “75 GRT or more laid up in the port and occupying an anchorage or berth with the approval of the Port Master” is “$14 for every 100 GRT …” whereas Item 1(c)(ii) of the same Notification provides that the rate for every vessel of ’75 GRT or more laid up in the port without the approval of the Port Master or for every arrested vessel of 75 GRT or more’ is “$20 for every 100 GRT”.

15 Miss Ang’s...

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