Swiss Singapore Overseas Enterprises Pte Ltd v Navalmar UK Ltd

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeWoo Bih Li JC
Judgment Date13 November 2002
Neutral Citation[2002] SGHC 267
Citation[2002] SGHC 267
Plaintiff CounselR Srivathsan (Haridass Ho & Partners)
Subject MatterPrinciples for granting mandatory injunction,Civil Procedure,Injunctions,Contract,Whether separate contract arising from correspondence,Formation
Date13 November 2002
Published date19 September 2003
Docket NumberSuit No 1331 of 2002
Defendant CounselJoseph Tan (Kenneth Tan Partnership)

Judgment

GROUNDS OF DECISION

Introduction

1. The Plaintiff Swiss Singapore Overseas Enterprises Pte Ltd (‘Swiss Singapore’) applied for a mandatory injunction to compel the Defendant Navalmar U.K. Ltd (‘Navalmar’) whether by itself or its agents in Singapore SSC Shipping Agencies Pte Ltd (‘SSC Shipping’) to issue eight bills of lading, the drafts of which were attached to Schedule 1 of the application, in exchange for nine existing bills of lading issued by SSC Shipping for and on behalf of the Master of the vessel MV Zurbaran (‘the Vessel’). The primary difference was that the words ‘Freight To Collect’ were marked on the existing bills whereas the new bills were to have the words ‘Freight Prepaid’. There were also other differences which I shall elaborate on later. After hearing arguments, I granted the mandatory injunction, although not exactly on the terms sought by Swiss Singapore. Navalmar has appealed to the Court of Appeal against my decision.

Background

2. Swiss Singapore claims that by a contract dated 9 May 2002, it had purchased a cargo of 10,000 metric tonne of Indonesian Merbau Timber from UD Menara Mas of Indonesia (‘UDMM’) for a total value of US$1.35 million. On or about 13 August 2002, UDMM entered into a fixture note with Navalmar for the hire of the Vessel to carry the cargo from Sorong, Indonesia to Chennai, India. Swiss Singapore is not a party to the fixture note but the material terms thereof state:

    ‘100% freight to be remitted by telegraphic transfer by Swiss Singapore Overseas Enterprises Pte Ltd, Singapore for and behalf of Charterer into Owner’s nominated bank account within 3 banking days of completion of loading and signing/releasing freight

    ….

    Owners to appoint a Singapore agent free of charge to Swiss Singapore Overseas Enterprises Pte Ltd to issue a second set freight prepaid BSL against an LOI as per Owner’s format which to be signed by their authorised signatory.’

3. 1,252 pieces of the cargo was loaded at Sorong between 3 September 2002 and 4 October 2002 and the nine bills of lading with the words ‘Freight To Collect’ were issued by SSC Shipping for and on behalf of the Master of the Vessel.

4. On 16 October 2002, Mary Vijay of Swiss Singapore sent an e-mail to Captain Priya of Navalmar stating:

    ‘WE ARE ARRANGING TO PAY THE FREIGHT TODAY. PLEASE ADVISE YOUR AGENTS IN SINGAPORE TO RELEASE SWITCH B/L TO US AGAINST FAX COPY OF TELEX REMITTANCE OF FREIGHT WITH A COPY TO US. ALSO PLEASE ADVISE THE POSITION OF VESSEL HER ETA CHENNAI ETC.’

5. This was followed by a handwritten fax to Captain Priya stating:

    ‘ To: Capt. Priya

    Ref. our telecon today. We have still not read your confirmation on above message. Please advise your agents details to whom we have to get the B/L Switched. Due to your not receipt of your confirmation of above matter and not confirmation of ETA of the vessel the freight payment is delayed. Your urgent confirmation is awaited to pay the freight.

    Thanks.

    Mary.’

6. On Friday 18 October 2002, Capt Priya sent an e-mail in response stating:

    ‘KINDLY NOTE THAT YOU HAVE STILL NOT PAID THE OCEAN FREIGHT.

    WE CANNOT SWITCH THE B/L (sic) UNTILL WE DO (sic) NOT RECEIVE THE FREIGHT INTO OUR ACCOUNT.

    VESSEL SAILED FROM BINTULU THIS MORNING AND WILL CALL TUTI

    FIRST TO DISCHARGE 4700 CBM LOGS AND THEN CALL AT CHENNAI.

    WE EXPECT VESSEL TO ARRIVE CHENNAI ON/ABOUT THE 28/29 TH OF OCTOBER AGW WP.

    KINDLY EXPEDITE FRT PAYMENT.’

7. On Monday 21 October 2002, Mary Vijay sent an e-mail to Capt Priya stating:

    ‘THANKS FOR YOUR BELOW MESSAGE. KINDLY SEND A MESSAGE CONFIRMING THAT SINGAPORE SHIPPING WILL BE SWITCHING THE B/L TO US AGAINST TELEX COPY CONFIRMING OF FREIGHT PAYMENT MADE TO YOU. WE NEED THIS VERY URGENTLY AS WE DO NOT WANT ANY CONFUSION OR DELAY IN GETTING THE B/L SWITCHED. WE WILL ONLY TAKE THE SWITCH B/L FROM YOUR AGENT AFTER PAYMENT OF FREIGHT. HENCE YOUR CONFIRMATION TO US REQUIRED VERY URGENTLY.’

    [Emphasis added.]

8. An e-mail of the same date was sent in reply to Mary Vijay stating:

    ‘we confirm that bills of lading will switched by Singapore shipping upon receipt of frt remittance advise. kindly note that delay is on your account due to non payment of freight, otherwise this could have been done 10 days ago.’

    [Emphasis added.]

9. On the very same day, Swiss Singapore arranged for payment of the freight of about US$258,000 and Mary Vijay sent an e-mail to Capt Priya to forward the telex confirmation of payment and eight drafts of bills of lading with an urgent request that Navalmar instruct SSC Shipping to sign and release the new bills.

10. Eight days later, on 29 October 2002, Swiss Singapore’s solicitors, Haridass Ho & Partners (‘Haridass’) sent an urgent chaser by fax to Navalmar to point out that Navalmar had confirmed in its e-mail dated 21 October 2002 that the bills of lading would be switched upon receipt of remittance for the freight and notwithstanding such remittance, Navalmar had refused to instruct SSC Shipping to issue the new bills. They also pointed out that without the new bills, Swiss Singapore would not be able to negotiate the letter of credit issued in their favour by their Indian buyers and their Indian buyers could not arrange customs and other clearance. The penultimate paragraph of the fax put...

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  • Rikvin Consultancy Pte Ltd v Pardeep Singh Boparai and another
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    • 5 July 2010
    ...remedy’ and can only be justified by ‘special circumstances’. In Swiss Singapore Overseas Enterprises Pte Ltd v Navalmar UK Ltd [2003] 1 SLR(R) 587, the High Court also applied the principle of requiring a ‘high degree of assurance’ that at the trial it would appear that an interim mandator......

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