Press Automation Technology Pte Ltd v Trans-Link Exhibition Forwarding Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 03 December 2002
• Date: 03 December 2002
• Docket Number: Suit No 1361 of 2001
• Court: High Court (Singapore)

Press Automation Technology Pte Ltd

Plaintiff

and

Trans-Link Exhibition Forwarding Pte Ltd

Defendant

[2002] SGHC 286

Judith Prakash J

Suit No 1361 of 2001

High Court

Contract–Incorporation of terms–Whether conditions on separate document incorporated into contract–Contract–Unfair Contract Terms Act (Cap 396, 1994 Rev Ed)–Whether limitation period clause and limitation of liability clause reasonable–Evidence–Interpretation–“Ordinary course of business”–Evidence Act (Cap 97, 1997 Rev Ed) s 32

The defendants (“Trans-Link”) contracted with the plaintiffs (“Patec”) to transport an exhibition machine. Trans-Link had given Patec quotations for their services, each stating that the business was transacted only in accordance with the Singapore Freight Forwarders Association Standard Trading Conditions (1986) (“the SFFA Conditions”). Copies of the SFFA Condition's were to be available upon application. Clause 27 of the SSFA Conditions restricted the carrier's liability to $100,000 while cl 30 stated that the time bar for any claim was nine months. Trans-Link did not forward the SFFA conditions to Patec nor did Trans-Link's representatives draw the attention of Patec's to the material clauses. It was conceded by PATEC that the incorporating clause was legible, clear and appeared in bold on all correspondence from Trans-Link. There was no course of dealing prior to this engagement.

While the machine was in Trans-Link's custody, it was damaged. PATEC claimed the damage and the cost of the survey report.

A verbal inspection report of the damage had been made in preparation of a survey report. The person providing the verbal inspection report could not be contacted by the time of the trial. However, the survey report incorporating the verbal inspection report was sought to be admitted. Trans-Link objected to the admission of the report.

Held, allowing the plaintiffs' claim to the amount of $100,000:

(1) The principle of drawing the attention of the contracting party specifically to onerous and unusual conditions is not applicable where there was a signed contract with an explicit incorporation clause: at [39].

(2) A party knowingly entering into a contract with a restrictive condition would still be able to seek the protection of the UCTA: at [47].

(3) The Hague Visby Rules applied, the nine month time bar period was not needed: at [64] and [67].

(4) The inspection report was made in the ordinary course of the maker's business, and therefore admissible under s 32 (b) of the Evidence Act (Cap 97, 1997 Rev Ed). Furthermore, Trans-Link had waived its right to object to admissibility by agreeing that it should be included as part of the Agreed Bundle without making any reservations: at [21] and [22].

AEG (UK) Ltd v Logic Resource Limited [1996] CLC 265 (refd)

Circle Freight International Ltd v Medeast Gulf Exports Ltd [1987] (Queen's Bench Division, UK) (refd)

Consmat Singapore (Pte) Ltd v Bank of America National Trust & Savings Association [1992] 2 SLR (R) 195; [1992] 2 SLR 828 (distd)

Goh Ya Tian v Tan Song Gou [1981-1982] SLR (R) 193; [1980-1981] SLR 578 (folld)

Hakko Products Pte Ltd v Danzas (Singapore) Pte Ltd [1999] 1 SLR (R) 651; [2000] 3 SLR 488 (distd)

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 (distd)

J Spurling Ltd v Bradshaw [1956] 1 WLR 461 (refd)

Kenwell & Co Pte Ltd v Southern Ocean Shipbuilding Co Pte Ltd [1998] 2 SLR (R) 583; [1999] 1 SLR 214 (folld)

L'Estrange v F Graucob, Limited [1934] 2 KB 394 (distd)

Overseas Medical Supplies Ltd v Orient Transport Services Ltd [1999] 1 All ER (Comm) 981; [1999] EWCA Civ 1449 (folld)

Rapiscan Asia Pte Ltd v Global Container Freight Pte Ltd [2002] 1 SLR (R) 701; [2002] 2 SLR 325 (refd)

Tilden Rent-A-Car Co v Clendenning [1978] 83 DLR 3d 400 (not folld)

Trident Holdings Ltd v Danand Investments Ltd (1987) 21 CLR 240, DC (distd)

Trident Holdings Ltd v Danand Investments Ltd (1988) 39 BLR 296; (1988) 49 DLR (4th) 1, CA (distd)

Vechscroon, The; McCarren & Co Ltd v Humber International Transport Ltd [1982] 1 Lloyd's Rep 301 (folld)

Xingcheng and Andros, The [1987] 1 WLR 1213; [1987] 2 Lloyd's Rep 210 (folld)

Evidence Act (Cap 97, 1997 Rev Ed) s 32 (consd)

Unfair Contract Terms Act (Cap 396, 1994 Rev Ed) ss 3, 11

Gan Seng Chee and Anna Quah (Ang & Partners) for the plaintiffs

Prakash P Mulani and Katherine Teo (J Koh & Co) for the defendants.

Judgment reserved.

Judith Prakash J

1 The defendants, Trans-Link Exhibition Forwarding Pte Ltd (“Trans-Link”), are, as their name implies, in the business of freight forwarding and transportation. They contracted with the plaintiffs, Press Automation Technology Pte Ltd (“Patec”), to transport a machine to an exhibition hall in Bangkok. While the machine was in the custody of the defendants, it was damaged.

2 Patec, claiming that the damage resulted in the total loss of the machine, commenced this action to recover the sum of USD178,091.75 being the value of the machine less its salvage value. They also claimed survey fees.

3 Although Trans-Link did not admit in its defence that the machine was damaged in the way asserted by Patec, the main points of the defence are:

(1) that Patec's claim is time barred because it was not commenced within nine months of the damage to the machine;

(2) that in any case Trans-Link's liability is limited to $100,000.

These two defences arise from cll 27 and 30 of the Singapore Freight Forwarders' Association Standard Trading Conditions (1986) (“the SFFA Conditions”). Trans-Link claimed that the SFFA Conditions were incorporated as part of its contract with Patec. Trans-Link further said that it could rely on cll 27 and 30 although these clauses restrict its liability for breach of contract because the clauses satisfy the test of reasonableness under the Unfair Contracts Terms Act (Cap 396) (“UCTA”).

4 It has been agreed by the parties that I should decide the issues raised by the defence first and that, if I resolve these in Patec's favour, the issue of the loss actually suffered by Patec should be sent for assessment.

The background

5 The facts are largely undisputed. Patec had agreed to participate in the 14th International Machine Tools & Metalworking Machinery Trade Exhibition and Conference to be held at the Bangkok International Trade & Exhibition Centre (“BITEC”) in November 2000. As a consequence, it was approached in August and September 2000 by three freight forwarding companies offering to transport its exhibit to BITEC and back. One of these was Trans-Link.

6 Patec had discussions with these three forwarders and eventually decided to employ Trans-Link. Trans-Link gave Patec three quotations for their services. These were dated 28 September 2000, 2 October 2000 and 5 October 2000 respectively. Each quotation was accompanied by Trans-Link's standard form Combined Invoice & Packing List and its Confirmation of Acceptance (“CoA”).

7 Each quotation contained the statement “All business is transacted only in accordance with the Singapore Freight Forwarders Association Standard Trading Conditions (1986). Copy is available upon application.”

8 The CoA contained the following terms:

1. 1) STANDARD TRADING CONDITIONS

   All business is only transacted in accordance with the Singapore Freight Forwarders Association (SFFA) Standard Trading Conditions. Copy is available upon application.

1. 2) TERMS OF PAYMENT

   …

1. 3) INSURANCE

   As our tariff is computed on the basis of volume or weight and has no correlation with the value of exhibits, it follows that the cost of insurance cover is not included in our charges. …

1. 4) REQUEST FOR INSURANCE

   …

1. 5) EXHIBITOR'S ACCEPTANCE

   Use of TRANS-LINK EXHIBITION FORWARDING PTE LTD's services - be it partly or full - and any requirement for additional services at any time before, during or after the exhibition

   express orally and/or in writing and/or by conduct, implies acknowledgement and acceptance of the Standard Trading Conditions and the foregoing terms numbered 1, 2, 3 and 4 above.

Clause 1 above, which is in almost identical terms to the clause referring to the conditions that appears in the quotation, was referred to by the parties as the “incorporating clause”.

9 On 9 October 2000, Patec accepted Trans-Link's quotation of 5 October 2000 whereby Trans-Link offered to transport one Patec Brand Press Machine weighing 30,000 kg from Patec's premises to BITEC and back to Patec's premises at a lump sum of $12,000. Patec's acceptance of the quotation was effected by its signing of the CoA. The signed CoA was then sent back by Trans-Link to Patec by facsimile transmission.

10 There was no course of dealing between Patec and Trans-Link prior to this engagement. Trans-Link did not forward the SFFA Conditions to Patec and Trans-Link's representatives did not draw the attention of Patec's representatives to cll 27 and 30 of the conditions.

11 On 25 October 2000, Trans-Link took delivery of the machine from Patec's premises. The machine was then in good condition. The machine was shipped from Singapore on or about 30 October on board the vessel Asia-Express. It arrived at BITEC on 10 November 2000. The machine suffered damage on 12 November 2000 in Bangkok and whilst it was in Trans-Link's custody. The machine was subsequently transported back to Patec's warehouse in Singapore by Trans-Link.

12 This suit was started on 29 October 2001. The nine month period from the date of delivery to BITEC expired on 10 August 2001.

The issues

13 The following are the issues that I have to decide:

1. (a) whether Patec has to prove that the damage to the machine arose out of the negligence of Trans-Link and, if so, whether the evidence of the first witness, Ms Pilai Klongpitayapong, and the report adduced by her are admissible;

2. (b) whether the SFFA Conditions formed part of the contract between the parties...