SMS Pte Ltd v Power & Energy Pte Ltd

• Jurisdiction: Singapore
• Judge: C R Rajah JC
• Judgment Date: 31 January 1996
• Neutral Citation: [1996] SGHC 18
• Docket Number: District Court Appeal No 19 of 1995
• Date: 31 January 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Barnard Sahagar (Jumabhoy Leong & Gay)
• Citation: [1996] SGHC 18
• Defendant Counsel: Lo Chun Boon (Gurbani & Co)
• Court: High Court (Singapore)
• Subject Matter: Pleadings,O 24 rr 7 & 16 Rules of the Supreme Court,Oral application from bar as to why order cannot be complied with,Test to be applied by judge in striking out defence,Striking out,Whether court has power to strike out upon oral application,Civil Procedure,Non-compliance with order for discovery,Oral application,Defence

The respondents/plaintiffs are cargo owners and the appellants/defendants are carriers. Under a contract for carriage the appellants were to deliver a cargo of 299 bales comprising 149,500 Jute Bags Btwill to the respondents at Ho Chi Minh port. The respondents` statement of claim accepts that the cargo was delivered by the appellants to them but claims that it was not delivered in the same good order and condition as when the appellants took charge of the cargo to carry it to Ho Chi Minh port. They say that 44,100 out of the 149,500 Jute Bags Btwill had been damaged by coming into contact with sea water. The respondents also say this damage was caused by the appellants` breach of the contract of carriage and/or breach of duty as a bailee and/or negligence and claim for damages against the appellants.

The respondents brought their claim by filing a generally indorsed writ in the subordinate courts on 14 December 1990. This writ was not served on the defendants until a year later on 13 December 1991. The statement of claim was filed and served some further 20 months later on 18 August 1993. The defendants filed their defence on 21 September 1993. Pursuant to a request, further and better particulars of the defence were filed on 6 October 1993.

The defence pleaded various grounds as to why the appellants were not liable. Now, only two grounds are relied on. Both arise from art III r 6 of the Hague Visby Rules which provides as follows:

Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.

Subject to para 6 bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has risen.

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.

Both parties agree that the Hague Visby Rules apply to the contract of carriage between them.

The first defence is that no notice as referred to in the first paragraph of art III r 6 was given and accordingly there is prima facie evidence that the goods were undamaged when delivered. The second defence is that the respondents` suit was not commenced within one year of the date of delivery of the goods.

With regard to the first defence of no notice, there is nothing to suggest from the affidavit of evidence-in-chief of the respondents` two witnesses or from any of the documents tendered by the respondents that any such notice was given or why such notice was not necessary. The second defence of time-bar will succeed if the goods were delivered more than a year prior to 14 December 1990. The appellants say the fact that this was the case is supported by the following:

(i) The telex from Vinacontrol in Ho Chi Minh to Robins Davies Marine Recoveries (S`pore) received on 3 January 1991 confirms that from 15 December 1989 to 12 February 1990 the cargo was stored in the container port of Ben Nghe a Vietnamese river port some 100 km from the sea. The port of discharge, however, was not Ben Nghe but Ho Chi Minh. This the appellants say shows that the cargo must have been discharged and delivered in Ho Chi Minh before 15 December 1989. Otherwise it could not have reached Ben Nghe by 15 December 1989.

(ii) Paragraph 6 of the respondents` witness Sadasivam Sivaramakrishnan`s affidavit of evidence-in-chief says the vessel arrived at Ho Chi Minh sometime in early to mid-December 1989. This the appellants say is consistent with the goods being delivered before 15 December 1989;

(iii) The statement of claim does not indicate the date of delivery. The appellants say this is because the goods were delivered before 15 December 1989.

Both defences, therefore, appear to provide a defence on the merits.

On 27 September 1994, pursuant to a summons for directions taken out by the respondents, the district court ordered, inter alia, that:

(a) each party file and verify by affidavit its list of documents within 30 days;

(b) the affidavit of evidence-in-chief of each party`s witnesses be filed and exchanged within 60 days; and

(c) the action be set down by 30 December 1994 with three witnesses for the respondents and three witnesses for the appellants.

In the event only the respondents filed a list of documents. It is not apparent from the record of appeal if this was filed within the time limited or not. Again only the respondents as having filed affidavits of evidence-in-chief but only for two witnesses. The first, that of Sadasivam Sivaramakrishnan, was filed almost 21/2 months out of time, on 10 February 1995, 12 days before the hearing. The second, that of Magdalene Ng Mei Theng, was filed even later on 21 February 1995, the day before the hearing. This affidavit does not appear in the record of appeal. The record of appeal also does not show if the action was set down for hearing within the time limited.

At the hearing of the action on 22 February 1995, the respondents applied under O 24 r 16 for the defence to be struck out and judgment to be entered for the respondents. This rule provides that if an order for discovery is not complied with, the court may, where the party in breach is a defendant, strike out the defence and enter judgment for the plaintiff. The application was made orally and not by way of a...