Sunly Petroleum Co Ltd v The Owners of The Ship or Vessel "Lok Maheshwari"

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 19 September 1996
• Neutral Citation: [1996] SGHC 212
• Court: High Court (Singapore)
• Year: 1996
• Published date: 29 January 2013
• Plaintiff Counsel: Kenny Yap [Allen & Gledhill]
• Defendant Counsel: R Srivathsan [Haridass Ho & Partners]
• Citation: [1996] SGHC 212

Judgment:

GROUNDS OF DECISION

1. On 12 January 1996 the Plaintiffs supplied bunkers and marine fuels to a vessel called the Lok Maheswari . The price of these supplies was US$37,755.97. An invoice was issued to the Defendants who were at all material times the owners of the vessel. The Defendants did not pay so the Plaintiffs sued and arrested the vessel in an action in rem. The vessel was subsequently released upon the Defendants providing security.

2. The owners then applied to strike out the Writ of Summons and proceedings in this action. The application was made on the ground that the court had no jurisdiction over the Defendants because the Plaintiff's case did not fall within s 4(4) of the High Court (Admiralty Jurisdiction) Act, Cap 123.

3. The events that led to the supply of the bunkers and marine fuel are straightforward. On 10 January 1996 the Plaintiffs received a telefax request stating the buyer to be the master and/or owner and/or operator and Portserv Limited . The telefax was sent by Capt Keith Rasquinha the master of the vessel. On the same day, the Plaintiffs received a telex from Portserv Limited , a company in Canada, stating that the vessel would arrive in Singapore on 12 January 1996. The next day, 11 January 1996, the master of the vessel sent a telex to the Plaintiffs stating, ... Understand u stemming IFO 200mt n MDO 50mt outside Singapore Port limits as advised by Transmar Shipping... . The vessel was at the material time on a Time Charter to Halla Merchant Marine Co Ltd of Seoul, Korea who sub-chartered the vessel to Transmar Shipping referred to in the master's telex of 11 January 1996.

4. On the same day, 11 January 1996, the Plaintiffs sent a telefax to Master and/or owner and/or operator and Portserv Ltd, care of Capt Rasquinha confirming the supply of the bunker fuel on the Plaintiffs' terms and conditions of sale. In this telefax which the Plaintiffs' counsel relied on, it was stated in the last sentence of the fourth paragraph as follows:

Sales of Marine fuels are made on the credit of the receiving vessel n owners as well as the Buyer's promise to pay n amount due shall give rise to a claim personally against the buyer n owners n in rem against the vessel n sistervessels, if any .

5. Also on 11 January 1996 the Plaintiffs sent a telefax to the Defendants' local agents Far Eastern Service Pte Ltd to request that Far Eastern give the Plaintiffs at least 24 hours notice of the location of the vessel and time at which delivery is required. They received a telefax from Far Eastern Service Pte Ltd stating that bunkers will be received within port limits. This was written on the same telex received from the master of the vessel at 2.02 hours on the same day in which the master stated clearly that the charterers had advised the vessel to receive the bunkers outside port limits. Transmar Shipping, the sub-charterers also sent a telefax on the same day to the Plaintiffs requesting that the bunkers be supplied outside port limits and if the owners of the vessels wanted to bring the vessel within port limits they must do so at their own expense.

6. On 12 January 1996 the Plaintiffs delivered 215.396 mt of marine fuel oil and 50.023 mt of marine diesel oil to the vessel within the port limits of Singapore. It was not disputed that the vessel was not intended to enter port limits but did so eventually to carry out a ship safety radio survey.

7. On these facts the Defendants applied to have the Writ of Summons struck out. The learned assistant Registrar struck out the writ and the Plaintiffs appealed.

8. Before me, Mr Yap, counsel for the Plaintiffs argued that the court had jurisdiction over the matter by virtue of s 4(4) of the Act. Once this is established the court cannot strike out the writ unless it is satisfied that the action was frivolous or vexatious. The Plaintiffs' case is that they intended and did contract with the owners of the vessel. This, their counsel argued, satisfies the first requirement of s 4(4) which is, that they are the persons who would be liable in an action in personam when the cause of action arose. The Plaintiffs' counsel argued that it may well be that the Plaintiffs' claim against the owners fails ultimately, but the test is not whether they are likely to succeed or not, it is whether they (the Defendants) would be liable if the Plaintiffs succeed. The test, he said, is one with a very low threshold.

9. He cited the Elefterio < 1957 > 1 Lloyds 283 and Wigwam < 1983 > 1 MLJ 148 cases in support. In the Elefterio, Willmer J said: It seems to me, having regard to the view I take of the construction of s 3(4) of the Act (the U.K. equivalent of our s 4(4)), that this is not the moment to decide whether the defendants are right or whether they are wrong in their submissions on the point of law raised. If they are right on all or any of these various points advanced, it may well be that in the end they will...