Powermatic-Apcom Systems Pte Ltd v Concord Express (S) Pte Ltd

• Judge: Karthigesu JA
• Judgment Date: 07 July 1999
• Neutral Citation: [1999] SGCA 47
• Year: 1999
• Subject Matter: Art 18 Warsaw Convention of 1929 as amended by Hague Protocol of 1955,Action against freight forwarders,Misdelivery of goods,Carriage of goods by air,Art 18 Warsaw Convention of 1929 as amended by Haque Protocol of 1955,Whether freight forwarders being 'carriers' and liable under Art 18 of Warsaw Convention,Carriage of Goods by Air and Land,Whether presumption in Art 18 of Warshaw Convention rebutted to make freight forwarders liable,Whether misdelivery of goods a loss during period of 'carriage by air',Whether action should be under common law or under Warshaw Convention as amended by Hague Protocol
• Published date: 19 September 2003
• Defendant Counsel: Chua Chok Wah and Magdalene Chew (Khattar Wong & Partners)
• Citation: [1999] SGCA 47
• Plaintiff Counsel: Govindarajalu Asokan and Adrian Loke (Rodyk & Davidson)
• Court: Court of Three Judges (Singapore)

Judgment:

KARTHIGESU JA

(delivering the judgment of the court): This appeal arises from the respondents` application to strike out the statement of claim in the proceedings begun in the Subordinate Courts on the basis that it disclosed no reasonable cause of action and/or was otherwise an abuse of process. At the centre of the controversy was an issue similar to the one first considered by this court in Seagate Technology International v Changi International Airport Services Pte Ltd [1997] 3 SLR 1, and concerned the question of the appropriate form to be invoked when pleading a claim for loss and damage arising out of an international carriage of cargo by air governed by the Warsaw Convention of 1929.

2. The facts

The appellants, who were the plaintiffs in the Subordinate Court proceedings, Powermatic-Apcom Systems, sell and export computer parts. The respondents, who were the defendants, Concord Express (Singapore), carry on the business of air freight forwarders. The appellants claimed against the respondents for the alleged misdelivery of a cargo of computer parts (`the goods`), worth some US$105,430, which the respondents were engaged to deliver from Singapore to Mumbai, India.

3.The appellants` statement of claim, in so far as material, states as follows:

3 ... It was an express, alternatively an implied term of the agreements [for the sale and purchase of the computer parts] that the purchase price of the said goods will be paid against documents by Pixtel Computers to Dena Bank of Mumbai, India, who will upon receipt of such payment:

(i) Forward the purchase price to the plaintiffs, less charges;

(ii) Hand over the documents, duly endorsed where applicable, to Pixtel Computers for them to obtain delivery of the said goods from the defendants and/or their servants and/or agents in Mumbai, India, upon presenting the said documents by Pixtel Computers and not otherwise.

The said documents were:

(a) a Packing List dated 21 April 1997 for Invoice No 274 and Packing List dated 8 May 1997 for Invoice No 299 in respect of Agreement 1, and Packing List dated 2 May 1997 for Invoice No 292 in respect of Agreement 2;

(b) Airway Bill Nos CS-254858 dated 23 April 1997 and CS-257083 dated 11 May 1997 in respect of Agreement 1, and CS-257112 dated 4 May 1997 in respect of Agreement 2;

(c) Invoice No 274 dated 21 April 1997 and Invoice No 299 dated 8 May 1997 in respect of Agreement 1, and Invoice No 292 dated 2 May 1997 in respect of Agreement 2; and

(d) The Hongkong and Shanghai Banking Corporation Limited Drafts dated 2 May 1997 and 15 May 1997 for the amounts of US$42,600 and US$28,400 respectively in respect of Agreement 1, and Hongkong and Shanghai Banking Corporation Limited Drafts dated 12 May 1997 for US$34,430 in respect of Agreement 2.

Accordingly, the plaintiffs as sellers reserved in the agreements their right of disposal of the goods until payment of the purchase price by Pixtel Computers to the plaintiffs through Dena Bank.

4 On 21 April, 2 and 8 May 1997, the plaintiffs duly delivered to the defendants the said goods for delivery by the defendants to Dena Bank on the terms of Airway Bill Nos CS-254858 dated 23 April, CS-257112 dated 4 May 1997 and CS-257083 dated 11 May 1997, issued to the plaintiffs by the defendants as independent contractors; alternatively as the plaintiffs` agents on the recommendation of them by Pixtel Computers.

5 The said Airway Bills provided, inter alia, as follows:

(a) Shipper: Powermatic-Apcom Systems Pte Ltd

(b) Consignee: Dena Bank, Mumbai, India

(c) Notify Party: Pixtel Computers, India

6 The said Airway Bills and other documents itemised in para 3 hereof were duly forwarded to Dena Bank by the plaintiffs on or about the month of May 1997 through the plaintiffs` bankers, The Hongkong and Shanghai Corporation Bank Limited, Singapore.

7 The defendants, either by themselves or by their servants and/or agents in Mumbai, India, failed to deliver the goods to Dena Bank or at all.

8 Instead, the defendants either by themselves or by their servants or agents in Mumbai, India, delivered the said goods to Pixtel Computers without first obtaining from Pixtel Computers the documents itemised in para 3 hereof.

9 To date, Pixtel Computers have not paid the purchase price to Dena Bank and/or the plaintiffs.

10 In the event, the documents itemised in para 3 hereof were returned to the plaintiffs in Singapore on or about 1 December 1997.

11 The property in the said goods accordingly remained throughout with the plaintiffs as sellers.

12 In the circumstances, the defendants are in breach of duty and/or contract and/or duty as bailees and/or guilty of conversion.

4.On 26 January 1998, the appellants applied for summary judgment against the respondents for the sums of US$105,430, being the value of the goods, and S$1,776.25 for bank charges. The respondents responded by taking out an application to strike out the writ and statement of claim under O 18 r 19, Rules of Court, alternatively under the inherent jurisdiction of the court, on the basis that they disclosed no reasonable cause of action and/or were an abuse of process. The respondents` application was dismissed. The respondents appealed to the High Court.

5.The appeal was heard before Judith Prakash J, who agreed with the respondents that the statement of claim did not disclose a reasonable cause of action. However, as she was satisfied that the facts relied on by the appellants in the statement of claim did give them a cause of action provided it was properly pleaded, she gave them leave to amend their statement of claim within 14 days, failing which the action would be struck out. The amended statement of claim, incorporating a claim founded on the provisions of the Warsaw Convention as amended by the Hague protocol of 1955, was filed on 20 October 1998. Notwithstanding this, the appellants, being dissatisfied with the learned judge`s decision, appealed to this court.

6. Warsaw Convention as amended by the Hague Protocol

At the heart of the present appeal lies the Warsaw Convention, which governs the international carriage of goods by air. In Singapore, the Carriage by Air Act (Cap 32A) provides that the Convention, both in its unamended form (`the Warsaw Convention`) and as amended by the Hague Protocol of 1955 (`the Amended Convention`), has force of law whenever there is an international carriage by air of...